Message #54: From: AzTeC SW Archaeology SIG To: "'Matthias Giessler'" Subject: Fossil Act (fwd) Date: Thu, 8 Feb 1996 22:30:28 -0700 (MST) Mime-Version: 1.0 From: ROLLA QUEEN FYI. Attached is the text of the current bill regarding fossils pending in Congress. ---------- Forwarded message ---------- Date: Thu, 08 Feb 1996 08:06:26 -0700 From: Edward Friedman
To: email@example.com Subject: Fossil Act Full Text of Most Recent Version:I 104th CONG 2d Session H. R. 2943 To provide for the collection of fossils on Federal lands, and for other purposes. IN THE HOUSE OF REPRESENTATIVES February 1, 1996 Mr. Johnson of South Dakota (for himself and Mr. Skeen) introduced the following bill; which was referred to the Committee on Resources, and in addition to the Committees on Agriculture, and Transportation and Infrastructure, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To provide for the collection of fossils on Federal lands, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Fossil Preservation Act of 1996". SECTION 2. FINDINGS AND PURPOSES. (a) Findings.--Congress finds that-- (1) paleontology, as distinct from archaeology, is the study of prehistoric, nonhuman life and is most closely allied with geology and biology; (2) the science of paleontology is best served by unimpeded access to fossils and fossil-bearing rocks in the field; (3) fossils have scientific, educational, and commercial value; (4) fossils are accessible on Federal lands, but the few Federal laws or regulations in existence on the date of enactment of this Act do not provide for uniform regulations for their collection; (5) access to fossils on Federal lands should be provided to research scientists, educators, amateur collectors, and commercial entities under proper guidelines, but collecting decreases the benefit of Federal lands for the people of the United States if the collecting-- (A) separates scientifically unique fossils from their geological and paleontological contexts, (B) removes scientifically unique fossils from the realm of public education or scientific study, or (C) interferes with ongoing excavation by researchers engaged in permitted studies or excavations. (6) scientifically unique fossils, as determined by the Council, must be deposited in institutions where there are established research, educational, and training programs in paleontology. (b) Purposes.--The purposes of this Act are-- (1) to secure, for the present and future benefit of the people of the United States, the protection, including collection and preservation, of fossils that are on Federal lands; (2) to provide a uniform national policy on fossil collecting on Federal lands that-- (A) enables research scientists, educators, amateur collectors, and commercial entities to collect fossils on Federal lands; and (B) facilitates scientific research and education in paleontology; (3) encourages the collection and preservation of fossils from Federal lands in order to reduce the loss of fossils resulting from erosion and theft; and (4) encourages the identification, preservation and study of scientifically unique paleontological specimens and sites on Federal lands in order to increase our understanding of the history of life on earth. SECTION 3. DEFINITIONS. For the purposes of this Act: (1) Federal lands. (A) The term "Federal lands" means the lands, other than wilderness, administered by the Bureau of Land Management, the Forest Service, the United States Fish and Wildlife Service, the Bureau of Reclamation, and the United States Army Corps of Engineers. (B) Such term does not include lands held in trust for the benefit of an Indian tribe or individual or held by an Indian tribe or individual subject to a restriction by the United States against alienation, lands administered by the National Park Service, lands designated by an Act of Congress as wilderness, and any other Federal lands not specifically included by subparagraph (A). (2) Federal land manager. The term "Federal land manager" means the Secretary of the department or head of the agency or instrumentality of the United States. (3) Fossil. The term "fossil" means any naturally occurring remains or trace of plant or animal life that; (A) lived prior to the Holocene epoch; and (B) is not associated with an archaeological resource or a cave resource. (4) Archaeological resource. The term "archaeological resource" has the meaning given such term in section 3(1) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470bb(1)). (5) Cave resource. The term "cave resource" has the meaning given such term in section 3(5) of the Federal Cave Resources Protection Act (16 U.S.C. 4302(5)). (6) Council. The term "Council" means the National Fossil Council established by section 9. (7) Director. The term "Director" means the Director of the United States Geological Survey. (8) Suitable paleontological institution. An institution is a suitable paleontological institution if the institution is a nonprofit public or private organization, including a college, university, Federal or State repository, or museum; (A) with a research, educational, or curatorial program in paleontology; and (B) with open access to appropriate records for the specimens collected under these permits for research and education. SECTION 4. MANAGEMENT OF FOSSILS ON FEDERAL LANDS. (a) Federal Lands Open to Fossil Collecting. Except as otherwise provided in this section, all Federal lands shall be open to fossil collecting, as follows: all Federal lands shall be open to fossil collecting by reconnaissance without a permit, except for those lands designated as requiring such a permit pursuant to subsection (c)(1)(B), and all Federal lands shall be open to fossil collecting by quarrying pursuant to a permit. (b) Duty To Manage Separately From Archaeological Resource. Each Federal land manager, in consultation with the Council, shall manage fossils separately from archaeological resources, cave resources, and cultural resources, but in conjunction with the natural resources within the jurisdiction of the Federal land manager. (c) Types of Collecting and Whether Notice or a Permit is Required. Collecting fossils from Federal lands shall be conducted in accordance with the following: (1) Reconnaissance. (A) In general. Except as provided in subparagraphs (B) and (C), collecting fossils from the surface is not subject to advance notice to a Federal land manager or the issuance of a permit. Such collecting is reconnaissance collecting and (i) results in surface disturbance of less than two square meters of the earth; (ii) involves picking up loose specimens on weathered rock surfaces; (iii) may involve the use of simple hand tools (such as hammers, chisels, pry bars, and rakes); (iv) does not involve the use of power tools, explosives,or mechanized equipment of any kind; and (v) does not pose potential for significant disturbance of sites of ongoing scientific research and other important resources, including endangered species, cultural resources, archaeological resources, cave resources, wilderness, or areas of critical environmental concern. (B) Exception. A permit is required for reconnaissance collecting from those Federal lands under the jurisdiction of the Federal land manager which the Federal land manager may designate in accordance with the guidelines developed by the Council under section 9. The Federal land manager shall publish in the Federal Register notice of each area for which a permit is required for reconnaissance collecting and shall post in each such area appropriate notice of reconnaissance collecting permit requirements. (C) Notice by groups. Advance notice of not less than seven days is required for reconnaissance collecting by groups comprised of more than 10 persons. (2) Quarrying. Fossil collection by quarrying means the collection of fossils by means other than reconnaissance collecting. Collecting fossils through quarrying may only be conducted pursuant to a permit and advance notice. (d) Determination of Scientifically Unique. The Federal land manager, in consultation with the Chair of the Council, shall determine whether a fossil is scientifically unique in accordance with regulations promulgated under section 10, except with respect to commercial permits. In the case of a commercial permit, the determination of scientifically unique shall be made by the Council. (e) Appeals. (1) Agency process. Except as provided by paragraph (2), administrative appeals of a Federal land manager's decision under this Act shall be made in accordance with the appeals process, if any, established by the agency concerned. (2) Council. An appeal of a Federal land manager's decision under this subsection (d) may be made to the Council in accordance with regulations promulgated under section 10. SECTION 5. PERMITS. (a) General Authority. (1) Issuance. The Federal land manager shall issue permits under such terms and conditions as the Federal land manager may impose (A) for reconnaissance collecting under section 4(c)(1) from those lands which the Federal land manager designates in accordance with the guidelines developed by the Council under section 9; and (B) for the discovery, quarrying, and removal of fossils under section 4(c)(2) that are located on lands under the jurisdiction of the Federal land manager, including activity associated with such quarrying. (2) Limitation. Commercial permits may not be issued under this section for the quarrying or removal of a scientifically unique find, as determined by the Council. (3) Period to consider application. Permits shall be issued or denied within a reasonable time, but no later than 90 days after a permit application is received, unless extended by written notice of the Federal land manager to allow compliance with this Act. (4) Contents of permit application. An application for a permit under this section shall contain (A) a general description of the area in which collecting activity is to occur and, when applicable, the purpose of the proposed quarry; (B) the beginning and ending dates of work and list of tools for the proposed activity; (C) the identity and qualifications of the individuals responsible for carrying out the terms and conditions of the permit; (D) in the case that the permit is for collecting fossils for educational purposes, the agreement of the applicant to the conditions specified in subsection (b); (E) in the case that the permit is for collecting fossils for scientific purposes, the agreement of the applicant to the conditions specified in subsection (c); (F) in the case that the permit is for collecting fossils for sale, barter, or exchange, the agreement of the applicant to the conditions specified in subsection (d); and (G) the applicant submits in writing qualifications and relevant proof of experience that are in compliance with the guidelines established by the Federal land manager and are appropriate for the type of permit applied for. (b) Educational Collecting Permits. A permit for collecting fossils from Federal lands for educational purposes shall be issued pursuant to an application under subsection (a) if (1) the applicant agrees to deposit all scientifically unique fossils, records, and data associated with such collecting in a suitable paleontological institution and to carry out the permitted activity primarily for the purpose of public education; (2) the applicant has a letter of agreement from a suitable paleontological institution; and (3) the Federal land manager determines that the activity is consistent with any management plan applicable to the Federal lands concerned. (c) Scientific Collecting Permits. A permit for collecting fossils from Federal lands for scientific purposes shall be issued pursuant to an application under subsection (a) if; (1) the applicant agrees to deposit all scientifically unique fossils, records, and data associated with such collecting in a suitable paleontological institution and to carry out the permitted activity primarily for the purpose of scientific research, public education, or public display; (2) the applicant has a letter of agreement from a suitable paleontological institution; and (3) the Federal land manager determines that the activity is consistent with any management plan applicable to the Federal lands concerned. (d) Commercial Collecting Permits. A permit for collecting fossils from Federal lands for sale, barter, or exchange shall be issued pursuant to an application under subsection (a) if, (1) the applicant agrees; (A) that the fossils to be extracted are for a commercial purpose; (B) to pay fees established in accordance with section 6; (C) to deposit the paleontological records and data associated with the commercial quarrying with the United States Geological Survey; (D) to report any unanticipated discoveries made under the commercial permit to the agency issuing the permit and that scientifically unique finds will be property of the United States and will be deposited in a suitable paleontological institution; and (E) to file a final report with the permit granting agency describing all quarried materials; (2) the Federal land manager determines that the activity is consistent with any management plan applicable to the Federal lands concerned; and (3) the permit application has been reviewed by the Federal land manager in consultation with the Chair of the Council. (e) Suspension and Revocation of Permits. (1) Suspension. The Federal land manager may suspend a permit issued under this section if the Federal land manager determines that the holder of the permit has intentionally violated any of the terms of the permit or intentionally engaged in an act for which a civil penalty may be imposed under section 8. (2) Revocation. The Federal land manager may revoke a permit issued under this section if the holder of the permit is assessed a civil penalty under section 8. (3) Protection of rights. Before suspending a permit under paragraph (1) or revoking a permit under paragraph (2), the Federal land manager shall provide the permittee with notice and an opportunity for a hearing on the record in accordance with section 554 of title 5, United States Code. (f) Permits Issued Under Antiquities Act of 1906. (1) New permits. No permit or other permission shall be required under the Act entitled "An Act for the Preservation of American Antiquities", approved June 8, 1906 (16 U.S.C. 431 et seq.), for any activity for which a permit is issued under this section. (2) Previous permits. Any permit issued under such Act prior to the date of enactment of this Act shall remain in effect according to the terms and conditions of the permit. No permit under this Act shall be required to carry out any activity under a permit issued under such Act prior to the date of enactment of this Act. Nothing in this Act shall be construed to modify or affect a permit issued under such Act prior to the date of enactment of this Act. SECTION 6. FEES AND ROYALTIES FOR COMMERCIAL COLLECTING. (a) General Authority. The Federal land manager shall establish and collect fees relating to the commercial collection of fossils subject to this Act. The fee shall be determined by the Secretary on a permit-by-permit basis and shall be sufficient to cover the cost to the Secretary of issuing a permit under section 5 and shall be based on the amount of surface disturbance which occurs under the permit and the location of the collection activity. (b) Royalty. A permit for commercial collecting shall require payment of a royalty on the fair market value of each fossil removed under the permit. The amount of the royalty shall be determined by the Council as a percentage of the value of the fossil on the basis of what a willing buyer would pay a willing seller in an arms length transaction. (c) Use of Amounts Collected. Amounts collected by a Federal land manager under this section shall be retained by the Federal land manager and used without further appropriation in the area with respect to which the amount was generated for the purpose of carrying out the paleontological program of the Federal land manager. SECTION 7. OWNERSHIP AND CUSTODY OF FOSSILS. (a) In General. Except as provided by subsection (b), fossils collected pursuant to this Act are the property of the collector; (1) without restriction if collected under the provisions of this Act where no permit is required; and (2) are subject to the terms and conditions agreed to by the collector in connection with the issuance of a permit under this Act if collected pursuant to the permit. (b) Exception. Fossils collected pursuant to a commercial collecting permit under section 5(c) which are scientifically unique, as determined by the Council, are the property of the United States and shall be placed into custody with the Director of the United States Geological Survey. This paragraph applies with respect to a fossil regardless of when the determination of scientifically unique is made. (c) Authority of United States To Dispose of Fossils. The Director of the United States Geological Survey may sell, exchange, loan, or donate any fossil placed into the custody of the Director under subsection (b). d) Modification or Removal of Restrictions. (1) Application to council. The collector of a fossil pursuant to a permit issued under this Act may apply to the Council for the modification or removal of restrictions relating to fossils collected under this Act. (2) Standard. The Council may modify or remove the restrictions, as the Council determines appropriate, if the Council determines that such modification or removal is necessary to better achieve an educational or scientific purpose of the collector. SECTION 8. CIVIL PENALTIES. (a) Authority. The Federal land manager may assess a civil penalty of more than $1,000 but not more than $100,000 against any person who; (1) willfully violates any provision of this Act, permit issued under this Act, or rule or regulation promulgated by the Federal land manager pursuant to this Act, including quarrying, removing, damaging, or otherwise altering or defacing, or attempting to quarry, remove, damage, or otherwise alter or deface, a fossil located on Federal land in violation of this Act or a permit issued under this Act; (2) knowingly sells, purchases, exchanges, transports, receives, or offers to sell, purchase, or exchange a fossil if the fossil was quarried or removed from Federal lands in violation of paragraph (1) or in violation of a law, ordinance, or permit in effect under any other provision of Federal law; (3) submits false, inaccurate, or misleading information on any application for a permit issued pursuant to this Act; or (4) fails to make or file any report required by this Act. (b) Mitigation of Penalty. The Secretary may compromise, modify, or remit, with or without conditions, any civil penalty which may be imposed under this subsection. (c) Interest. (1) Date accrual begins. Interest shall accrue on a civil penalty imposed under this section on the later of; (A) the date on which the order of the Federal land manager becomes final, unless an action for judicial review is brought in accordance with chapters 5 and 7 of title 5, United States Code; and (B) the date on which a final judgment is entered pursuant to an action referred to in subparagraph (A). (2) Rate. Interest for a period under paragraph (1) shall be at the rates specified for underpayments under section 6621 of the Internal Revenue Code of 1986. SECTION 9. NATIONAL FOSSIL COUNCIL. (a) Establishment. The Director of the United States Geological Survey shall establish a council to be known as the "National Fossil Council". (b) Duties. The Council. (1) during the six-month period beginning on the date of the appointment of the initial members under subsection (c)(2); (A) shall develop guidelines and parameters for determining "scientifically unique"; (B) shall develop procedures for identifying specimens as scientifically unique, including procedures for cases in which the determination is made during the collection process or after the removal of the specimen from Federal lands; (C) shall develop a procedure for advising the Federal land manager on scientifically unique fossils upon request of the Federal land manager; (D) shall develop guidelines for the Federal land manager to determine which lands to close for reconnaissance collecting; (E) shall develop procedures for processing appeals of a Federal land manager's decisions with respect to the determination of scientifically unique; (F) shall develop guidelines for the minimum acceptable qualifications of collectors for each type of permit under section 5; (G) shall establish the royalty rate required by section 6; and (H) may define or provide guidelines for determining which groups may engage in collecting for educational purposes without a permit under section 5(b)(2); (2) provide advice to the Federal land managers in carrying out this Act; (3) review permit applications rejected pursuant to section 4(d) on the basis of scientifically unique fossils; (4) review the procedures by which this Act is enforced to ensure uniformity of regulation consistent with this Act among Federal land management agencies; and (5) carry out the other duties required by this Act. (c) Membership. (1) In general. The Council shall be composed of seven members, as follows: (A) The Director of the Geological Survey (or designee), ex officio, who shall serve as the chair of the Council. (B) One individual appointed by the Director, after considering recommendations made by the United States National Museum. (C) One individual appointed by the Director, after considering recommendations made by the Society of Vertebrate Paleontology. (D) One individual appointed by the Director, after considering recommendations made by the Paleontological Society. (E) One individual who shall be representative of the Federal land managers, appointed by the Director after considering recommendations made by the Secretary of the Interior and the Secretary of Agriculture. (F) One individual appointed by the Director, after considering recommendations made by the American Association of Paleontological Suppliers. (G) One individual appointed by the Director, after considering recommendations made by the Mid America Paleontological Societies and the American Federation of Mineralogical Societies. (2) Initial appointments. The Director shall make the appointments of the initial members within 60 days after the date of enactment of this Act. (d) Terms. (1) In general. Each member appointed under subsection (c) shall be appointed for a term of five years, except as provided in paragraphs (2) and (3). (2) Terms of initial appointees. As designated by the Director at the time of appointment, of the members first appointed; (A) two shall be appointed for terms of three years; and (B) two shall be appointed for terms of four years. (3) Vacancies. Any member appointed to fill a vacancy occurring before the expiration of the term for which the member's predecessor was appointed shall be appointed only for the remainder of that term. A member may serve after the expiration of that member's term until a successor has taken office. A vacancy in the Council shall be filled in the manner in which the original appointment was made. (e) Basic Pay. Members shall serve without pay, and members who are full-time officers or employees of the United States may not receive additional pay, allowances, or benefits by reason of their service on the Council. (f) Quorum and Vote Required. (1) In general. Five members of the Council shall constitute a quorum but a lesser number may hold hearings. Except as provided by paragraph (2), actions may be taken upon affirmative vote by a majority decision, a quorum being present. (2) Designation of scientifically unique. (A) Designating a fossil as scientifically unique in connection with a commercial permit requires an affirmative vote of five members of the Council. (B) In an appeal of a decision of a Federal land manager under section 4(d)(2), an affirmative vote of five members of the Council is required to modify or reverse the decision. (g) Meetings. The Council shall meet at the call of the Chair or as otherwise provided by this section. (h) Staff of Federal Agencies. Upon request of the Chair, the head of any Federal department or agency may detail, on a reimbursable basis, any of the personnel of that department or agency to the Council to assist it in carrying out its duties under this Act. (i) Mails. The Council may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States. SECTION 10. REGULATIONS. (a) General Regulations. (1) Issuance. Not later than one year after the date of the enactment of this Act, the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of the Army, after consultation with other Federal land managers and representatives of concerned State agencies, after review and comment by the Council, and after public notice and hearings, shall each issue as soon as practicable, such regulations as are appropriate to carry out this Act. Such regulations shall be as uniform as possible and where not possible, shall include a list of all instances in which such regulations are not uniform and the reasons therefor. (2) Submission to congress. The regulations issued under this Act shall be submitted to the Committee on Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate and may not take effect before the expiration of the 90-date period following the date of submission. (b) Land Management Plans. Each Federal land manager shall amend management plans as necessary to conform to this Act and the regulations issued under subsection (a).