[Senate Report 110-18]
[From the U.S. Government Publishing Office]
Calendar No. 43
110th Congress Report
SENATE
1st Session 110-18
======================================================================
PALEONTOLOGICAL RESOURCES PRESERVATION ACT
_______
February 15, 2007.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 320]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 320) to provide for the protection of
paleontological resources on Federal lands, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
PURPOSE OF THE MEASURE
The purpose of S. 320 is to establish a comprehensive
national policy for preserving and managing paleontological
resources on Federal lands administered by the Secretary of the
Interior and the Secretary of Agriculture.
BACKGROUND AND NEED
Over the past several years, there has been increasing
discussion about the need to develop a coordinated policy for
the disposition of fossils found on public lands. Federal
agency officials, paleontologists and others have expressed
concern that the lack of a clear policy for the treatment of
fossil resources, and uncertainty in legislative authority,
make it more difficult for Federal land managers to properly
protect fossil resources.
A 1988 Congressional Research Service report concluded that
while specific statutes or executive actions may protect fossil
resources in specific areas, and while generic land management
laws permit Federal agencies to protect fossil resources, there
are no laws that require the protection and regulation of these
resources. The report also noted each agency has different land
management laws, so there is often inconsistent administration
of fossil resources among different agencies.
The Senate report accompanying the Department of the
Interior and Related Agencies Appropriations Act, 1999 (S.
Rept. 105-227) directed the Secretary of the Interior, in
consultation with appropriate scientific, educational and
commercial entities, to develop a report assessing the need for
a unified Federal policy on the collection, storage, and
preservation of fossils on public lands.
In May 2000, the Secretary of the Interior issued a report
to Congress entitled Fossils on Federal & Indian Lands, setting
forth several recommendations for the management of
paleontological resources on Federal lands. Specifically, the
report identified the need for agencies to conduct field
inventories and monitoring of fossil resources, and to limit
the collection of rare fossils to scientific and educational
uses. The report also identified the need to strengthen civil
and criminal penalties for the unauthorized removal of fossils
from Federal lands.
S. 320 incorporates many of the recommendations from this
report and establishes a comprehensive policy for protecting
fossil resources on Federal lands administered by the Secretary
of the Interior and National Forest System lands administered
by the Secretary of Agriculture.
LEGISLATIVE HISTORY
S. 320 was introduced by Senator Akaka on January 17, 2007.
Senators Wyden, Bunning, Inouye, and Durbin were original
cosponsors. During the 109th Congress, the Committee considered
identical legislation, S. 263, which was ordered reported by
the Committee on February 9, 2005 (S. Rept. 109-36) and which
passed the Senate, by unanimous consent, on July 26, 2005.
The Committee also considered similar legislation during
the 108th Congress, S. 546, sponsored by Senator Akaka. The
Subcommittee on National Parks held a hearing on S. 546 on June
10, 2003 (S. Hrg. 108-69), and the bill was ordered reported
from the Committee on June 25, 2003 (S. Rept. 108-93) and
passed by the Senate by a unanimous consent on July 17, 2003.
At its business meeting on January 31, 2007, the Committee
on Energy and Natural Resources ordered S. 320 favorably
reported.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in an
open business session on January 31, 2007, by a unanimous voice
vote of a quorum present, recommends that the Senate pass S.
320.
SECTION-BY-SECTION ANALYSIS
Section 1 provides the short title, the ``Paleontological
Resources Preservation Act.''
Section 2 defines key terms used in the bill.
Section 3 directs the Secretary of the Interior and the
Secretary of Agriculture (collectively referred to as the
``Secretary'') to coordinate the management and protection of
paleontological resources on Federal lands using scientific
principles and expertise.The section also directs the Secretary
to develop appropriate plans for paleontological resources addressing
inventory, monitoring, and scientific and educational use.
Section 4 directs the Secretary to establish a program to
increase public awareness about the significance of
paleontological resources.
Section 5(a) states that paleontological resources may not
be collected from Federal lands without a permit issued by the
Secretary except that casual collection may be allowed as
defined in section 2, and permits issued prior to this Act
shall not be affected.
Subsection (b) provides the criteria by which a permit may
be issued.
Subsection (c) lists the terms and conditions contained in
a permit issued by the Secretary, including requirements that
the paleontological resources collected from public lands
remain the property of the United States and that the resource
will be preserved for the public in an approved repository to
be made available for scientific research and public education.
Subsection (d) authorizes the Secretary to modify, suspend,
or revoke a permit for certain considerations or violations.
Subsection (e) authorizes the Secretary to restrict access
to or close areas under the Secretary's jurisdiction to the
collection of paleontological resources.
Section 6 states that any paleontological resource, and
associated data and records, collected under a permit shall be
deposited in an approved repository. In addition, the Secretary
is authorized to enter into agreements with non-Federal
repositories.
Section 7 describes criminal penalties associated with
prohibited acts.
Section 8 describes civil penalties associated with
prohibited acts.
Section 9 authorizes the Secretary to pay, from penalties
collected under section 7 or 8, rewards to any person who
furnishes information leading to the finding of a civil
violation, or the conviction of a criminal violation and
establishes forfeiture authority.
Section 10 protects information concerning the nature and
specific location of paleontological resources unless the
Secretary determines that disclosure would further the purposes
of this Act, not create a risk of harm to or theft or
destruction of the resource, and be in accordance with other
applicable laws.
Section 11 directs the Secretary to issue regulations as
appropriate to carry out this Act, providing opportunities for
public notice and comment.
Section 12 includes several savings provisions, making
clear that this Act does not interfere with or restrict the
listed laws and activities.
Section 13 authorizes the appropriation of such sums as may
be necessary to carry out this Act.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of the cost of this measure has been
provided by the Congressional Budget Office:
S. 320--Paleontological Resources Preservation Act
S. 320 would codify current Administration policy regarding
the preservation and use of paleontological resources on
federal lands. (Paleontological resources include fossilized
remains, traces, or imprints of organisms that are preserved in
or on the Earth's crust.) The bill also would establish
criminal and civil penalties for unlawful activities related to
paleontological resources. CBO estimates that any budgetary
impact of implementing the bill would be negligible.
The bill would prohibit taking or damaging paleontological
resources located on federal lands without a permit or
permission, selling or purchasing such resources received from
federal lands, or submitting false records or identification
for such resources removed from federal lands. As a result, the
federal government would be able to pursue cases that it
otherwise would not be able to prosecute. CBO expects that any
increase in federal costs for law enforcement, court
proceedings, or prison operations would not be significant,
however, because of the small number of cases likely to be
involved. Any such additional costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under S. 320 could
be subject to criminal fines and civil penalties, the federal
government might collect additional fines or penalties if the
bill is enacted. Collections of such fines and penalties are
recorded in the budget as revenues. Under existing law,
criminal fines are deposited in the Crime Victims Fund and
spent without further appropriation in subsequent years. Under
the provisions of this bill, certain civil penalties also would
be available to be spent without further appropriation. CBO
expects that any additional revenue and direct spending as a
result of enacting S. 320 would be less than $500,000 each year
and would offset each other over time.
S. 320 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would have no significant impact on the budgets of state,
local, or tribal governments.
The CBO staff contact for this estimate is Deborah Reis.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
REGULATORY IMPACT EVALUATION
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 320. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 320, as ordered reported.
EXECUTIVE COMMUNICATIONS
Because S. 320 is identical to legislation passed by the
Senate in the 109th Congress, the Committee did not request
Executive Agency views on S. 320. The testimony provided by the
Department of the Interior and the Department of Agriculture at
the Subcommittee hearing on S. 546 in the 108th Congress
follows:
Statement of Christopher Kearney, Deputy Assistant Secretary for
Policy, Management and Budget, Department of the Interior
Mr. Chairman, thank you for the opportunity to present the
Department of the Interior's views on S. 546, the
Paleontological Resources Preservation Act. The Department
supports the purpose of S. 546 to protect paleontological
resources on federal lands but would like to work with the
Committee on the amendments provided at the end of this
testimony.
S. 546 adopts the recommendation of a report submitted to
Congress in May 2000, titled ``Fossils on Federal and Indian
Lands'' (the Interagency Fossil Report). Concerned about the
lack of unified policies and standards for the management of
fossils on federal lands and the resulting deterioration and
loss of fossils, Congress directed the Bureau of Indian
Affairs, the Bureau of Land Management, the Bureau of
Reclamation, the Fish and Wildlife Service, the Forest Service,
the National Park Service, the Smithsonian Institution and the
U.S. Geological Survey to develop a report assessing the need
for a unified federal management policy. During development of
the report, three major themes emerged from the public comments
received. First, a majority of people who commented viewed
fossils on federal lands as part of America's heritage. Second,
they recommended that vertebrate fossils continue to be
protected as rare and within the ownership of the federal
government. Third, they supported the involvement of amateurs
in the science and enjoyment of fossils, including the
availability of most plant and invertebrate fossils for casual
collection on lands managed by the Bureau of Land Management
and the Forest Service. To meet these and other goals, the
report recommended the establishment of a framework for fossil
management, analogous to the Archeological Resources Protection
Act of 1979 (ARPA).
Fossils are non-renewable resources which, with the
exception of microfossils and those that make up commercially
developed minerals, such as coal, are relatively rare and have
significant scientific, educational and recreational values.
Federal lands, the majority of which are in the western part of
the United States, contain a rich array of plant, invertebrate
and vertebrate fossils. For more than a century, land
management agencies have managed fossils within their unique
missions. These agencies have protected all vertebrate fossils,
requiring permits for their excavation and removal, with the
stipulation that the resources remain in federal ownership in
perpetuity.
In recent years, public interest in fossils has grown
rapidly and with this interest, the commercial value of fossils
also has increased. The unfortunate consequence has been a loss
of fossils from federal lands, through theft and vandalism, and
from the United States itself, through international
trafficking. These crimes reduce scientific and public access
to scientifically significant and instructive fossils and
destroy the contextual information critical for interpreting
the fossils.
S. 546 would provide a unified federal policy to ensure
that scientifically significant fossils on certain federal
lands are inventoried, monitored, protected, and curated
consistently, while accommodating the agencies' distinct
missions. The provisions in this bill do not apply to Indian
lands. As we understand it, the bill, in large measure,
reflects the current practice of agencies in the management of
fossils on federal land. Streamlining the practices of the
various land management agencies into a unified approach will
enhance overall management of fossils on federal lands by
reducing public confusion and improving collaboration and
cooperation among agencies, scientists, and the public.
Under the agencies' existing regulations and policies,
vertebrate fossils may only be collected with a permit for
scientific and educational purposes. S. 546 would codify this
collection policy and standardize the permitting requirements
among the various agencies, as recommended in the Interagency
Fossil Report. It would ensure that these fossils are retained
as public property and curated in suitable repositories for
current and future generations of scientists and the public to
study and enjoy. Scientists use the information from specimens
in repository collections to build on our understanding of the
history of life and physical environment on Earth. Millions of
visitors enjoy the displays offered by public repositories of
their most spectacular and educational fossils, many
originating from federal lands.
One exception to the permitting requirements under S. 546
is for casual collection of certain paleontological resources
for personal, scientific, educational and recreational uses.
This important provision would authorize the Secretary to allow
the public to casually collect common invertebrate and plant
fossils without a permit on certain federal lands. In other
words, under this bill, visitors to BLM lands who enjoy
paleontology as a hobby could continue to collect and keep for
their personal use a wide variety of plant and common
invertebrate fossils. The casual collection of such fossils can
be an important component of the public's enjoyment of some
federal lands and is generally consistent with scientific and
educational goals.
S. 546 would codify the land managing agencies' existing
prohibition on commercial fossil collecting from federal lands.
By prohibiting such collecting, this legislation ensures that
vertebrate fossils on federal lands, a rich part of America's
heritage, remain in public hands, that they are not bought or
sold, and that the federal government does not have to use
taxpayer funds to purchase fossils found on lands that it owns.
S. 546 would provide additional protection by prohibiting
the excavation, damage, transport or sale of paleontological
resources located on federal lands. Criminal penalties for
these acts would be set by classification, following fine and
imprisonment penalties imposed under federal law.
Keeping an appropriate inventory and monitoring are crucial
components of fossil management. S. 546 would provide the
Secretary with the flexibility to keep an inventory and monitor
exposed fossils based on the site-specific geology and
paleontology of their management units. The exposure of fossils
by erosion varies, based on the type of rock in which they are
found and local climate. Some fossils remain exposed at the
surface for decades or centuries, while others weather away
soon after exposure depending on the nature of their
preservation.
S. 546 would balance the need for public access to fossils
with the recognition that the unlimited disclosure of certain
information about particularly significant fossils can lead to
the theft or vandalism of those fossils. In the National Parks
Omnibus Management Act of 1998, Congress authorized the
National Park Service to withhold information about the nature
and specific location of paleontological resources in park
units unless certain criteria were met. S. 546 would extend
this same authority to the other federal land managing
agencies.
Last Congress, the Department testified before this
Committee in support of the purpose of S. 2727, a similar bill,
while also citing a number of concerns. After the hearing, the
Department provided the Committee with general comments and
suggested amendments to address our concerns with the bill. We
appreciate that S. 546, as introduced, includes the vast
majority of our proposed amendments. At the end of this
testimony, we offer additional amendments for the Committee's
further consideration. We look forward to working with the
Committee on these remaining issues.
As the prices of fossils rise, the federal land managing
agencies will be under increasing pressure to both protect
scientifically significant fossil resources and to ensure their
appropriate availability to the general public. S. 546 would
create a single legislative framework for paleontological
resource management that will facilitate sharing of resources,
personnel and partnership opportunities across agency lines.
Mr. Chairman, this concludes my statement. I would be
pleased to answer any questions you or other members of the
Committee may have.
PROPOSED AMENDMENTS FOR S. 546
On p. 3, line 1, after ``personal'' strike ``(`` insert
``,``.
On p. 3, line 2, after ``recreational'' strike ``)''.
On p. 3, line 13, after ``means lands'' insert ``owned,
controlled, or''.
--clarifies the bill's inclusion of all lands (except
Indian lands) managed by the Departments
On p. 4, line 14, strike ``Rehabilitation'' insert
``Repatriation''
On p. 5, line 17, after ``Federal lands'' insert ``owned,
controlled, or''.
--clarifies generally where casual collecting may be
allowed
On p. 8, line 4, after ``permit'' insert ``issued under
this Act''.
--ensures that the permit referenced is the permit
established under this Act
On p. 8, line 8, after ``Acts;'' insert ``Criminal''
--clarifies that Section 9 addresses criminal penalties, in
contrast with Section 10 which addresses civil
penalties
On p. 9, line 8, strike ``Penalities'' insert ``Penalties''
On p. 10, line 19, after ``involved.'', insert ``, as
determined by the Secretary.''.
On p. 11, line 12, strike entire subsection (b), insert:
``(b) Petition for Judicial Review; Collection of Unpaid
Assessments.--
(1) Judicial review.--Any person against whom an
order is issued assessing a penalty under subsection
(a) may file a petition for judicial review of the
order in the United States District Court for the
District of Columbia or in the district in which the
violation is alleged to have occurred within the 30-day
period beginning on the date the order making the
assessment was issued. The Secretary shall promptly
file in such court a certified copy of the record on
which the order was issued. The court shall hear the
action on the record made before the Secretary and
shall sustain the action if it is supported by
substantial evidence on the record considered as a
whole.
(2) Failure to pay.--If any person fails to pay a
penalty under this section within thirty (30) days--
(A) after the order making the assessment has
become final and the person has not filed a
petition for judicial review of the order in
accordance with paragraph (1); or
(B) after a court in an action brought in
paragraph (1) has entered a final judgment
upholding the assessment of the penalty,
the Secretary may request the Attorney General to institute a
civil action in a district court of the United States for any
district in which the person is found, resides, or transacts
business, to collect the penalty (plus interest at currently
prevailing rates from the date of the final order or the date
of the final judgment, as the case may be). The district court
shall have jurisdiction to hear and decide any such action. In
such action, the validity, amount, and appropriateness of such
penalty shall not be subject to review. Any person who fails to
pay on a timely basis the amount of an assessment of a civil
penalty as described in the first sentence of this paragraph
shall be required to pay, in addition to such amount and
interest, attorneys fees and costs for collection proceedings.
--is the standard enforcement provision found in other laws
including the Clean Water Act
On p. 13, line 8, strike ``may be subject to forfeiture * *
* involved in the violation.'' insert ``shall be subject to
civil forfeiture, or upon conviction, to criminal forfeiture.
All provisions of law relating to the seizure, forfeiture, and
condemnation of property for a violation of this Act, the
disposition of such property or the proceeds from the sale
thereof, and remission or mitigation of such forfeiture, as
well as the procedural provisions of Chapter 46 to Title 18,
United States Code, shall apply to the seizures and forfeitures
incurred or alleged to have been incurred under the provisions
of this Act.''.
--makes a distinction between civil forfeiture and ensures
that criminal forfeiture only could occur upon
conviction
--makes clear that the protections of the Civil Asset
Forfeiture Reform Act (CAFRA), an act to provide a
more just and uniform procedure for Federal civil
forfeitures, would apply
On p. 13, after line 17, insert new (c):
``(c) Transfer of Seized Resources.--The Secretary is
authorized to transfer ownership or administration of seized
paleontological resources to Federal or non-Federal educational
institutions to be used for scientific or educational
purposes.''
--allows the establishment of partnerships with schools and
other entities to transfer seized resources (for
example, some resources that are recovered with no
record of their context may have lost value to a
museum, but may still have educational value)
On p. 13, after line 18, strike entire section and insert:
``(a) Information concerning the nature or specific
location of a paleontological resource the collection of which
requires a permit under this Act or under any other provision
of Federal law shall be withheld from the public--
(1) in response to a request under subchapter II of
chapter 5 of title 5, United States Code; or
(2) notwithstanding any other provision of law that
would authorize release.
(b) The information described in subsection (a) shall be
released if the responsible Secretary determines that
disclosure would--
(1) further the purposes of the Act;
(2) not create a risk of harm to or theft or
destruction of the resource or the site containing the
resource; and
(3) be in accordance with other applicable laws.''.
On p. 15, line 3, after ``time'' insert ``under''.
Statement of Elizabeth Estill, Deputy Chief, Programs, Legislation and
Communication, Forest Service, Department of Agriculture
Mr. Chairman and members of the subcommittee, thank you for
the opportunity to be here today. I am Elizabeth Estill, Deputy
Chief for Programs, Legislation and Communications, USDA Forest
Service. I will provide the Department's comments on S. 546,
the Paleontological Resources Preservation Act.
During the 107th Congress, the Department supported the
purpose of S. 2727; a similar bill also entitled the
Paleontological Resources Preservation Act, and provided some
recommended changes to the committee staff. I am pleased to see
some of the Department's concerns addressed in S. 546. The
Department supports the purpose of the bill, but we would like
to work with the Committee to address some of our other
recommendations.
Unified guidelines for paleontological resources management
and special protection for vertebrate paleontological resources
are greatly needed on National Forest System lands. Forest
users, amateurs and scientists alike, are demanding
opportunities for recreation, education, interpretation, and
the scientific study of fossils. As these legitimate demands
increase so does the amount of illegal activity such as theft
and vandalism. Therefore, clearly defined, consistent laws and
penalties to deter theft and vandalism of fossils from federal
lands are also needed.
The Forest Service currently manages paleontological
resources under a patchwork of laws that do not specifically
address their unique characteristics nor provide adequate
management and protection of the resource. These laws include
the Organic Administration Act of 1897, the Archaeological
Resources Protection Act of 1979, and the Federal Cave
Resources Protection Act of 1988. The later statutes only
protect paleontological resources when they are associated with
archeological resources, or when they occur in caves,
respectively.
A consistent statutory framework will enhance overall
management of paleontological resources on National Forest
System lands. Between 1991 and 1996, one-third of all fossil
sites inventoried in the Oglala National Grassland in Nebraska
were found to have been vandalized, and as a result, valuable
data was lost to science and to the public. In 1996, a case
involving fossil theft on National Forest System lands in
California, which was prosecuted under civil laws by the
Department of Justice and ultimately settled out of court,
pointed out the need for more specific statutes and regulations
related to the theft of federal fossils.
S. 546 directs the Secretary of the Interior and the
Secretary of Agriculture to manage and protect
paleotontological resources using scientific principles. The
bill recognizes the non-renewable nature of fossils and defines
paleontological resources as fossilized remains preserved in or
on the Earth's crust. This distinguishes these resources from
archeological resources, covered under the Archaeological
Resources Protection Act (ARPA); cultural items, covered under
the National Historic Preservation Act and the Native American
Graves Protection and Repatriation Act (NAGPRA); and mineral
resources.
If enacted, the bill would establish casual collection
provisions including permitting requirements for scientific and
educational purposes using uniform and consistent criteria. S.
546 recognizes that paleontological resources are federal
property, and that the fossil as well as the associated field
data and other records will be preserved and made available to
the public. An important aspect of this bill to the Forest
Service is its formal recognition of casual collecting of
invertebrate and plant fossils for recreational, non-commercial
use as a valid public activity on National Forests System lands
for which a permit may not be required where the collecting is
not inconsistent with the laws governing the management of
National Forest System lands and S. 546.
S. 546 provides important uniform criminal and civil
penalties for all the federal managing agencies for theft and
damage of paleontological resources. Currently, there is a
complex mix of laws, regulations an guidelines that have
created significant jurisprudential challenges. For example,
for the Forest Service, violations of regulations protecting
paleontological resources are Class B Misdemeanors, punishable
by up to six months imprisonment, or $5,000 fine, or both. For
the Bureau of Land Management, violations are Class A
Misdemeanors, punishable by up to one year imprisonment, or
$100,000 fine, or both. The penalties defined in S. 546 are
also consistent with recent amendments to the federal
sentencing guidelines of the U.S. Sentencing Commission for
increased penalties for cultural heritage resources.
S. 546 also provides that the proceeds arising from civil
and criminal penalties established under the bill may be
available for payment to those who provided information in
investigations that lead to the civil violations or criminal
convictions for which the penalties were assessed. However, the
current reward language in Section 11 provides a maximum reward
amount that we believe will be ineffective in most cases. We
believe that the appropriate reward amount to be offered or
paid for assistance in investigations is best determined by the
agency and prosecutor based on the significance of the case and
assistance provided or needed. We recommend that references to
any dollar amount be removed. Further, the Forest Service
currently has differing regulations at 36 CFR 262.1 which
regulate the payment of rewards along with other Department of
Justice protocols.
Mr. Chairman, paleontological resources, especially
vertebrate fossils, are heritage resources. They are evidence
of the past history of life on Earth. They provide
opportunities for the public to learn more about ancient Earth
ecosystems and the development of life from research and study
of these resources. The Forest Service is a steward of these
heritage resources and is committed to their protection while
providing opportunities for research, education, and
recreation. The Paleontological Resources Preservation Act
would help secure the authority of the Forest Service to manage
and protect all paleontological resources on National Forest
System lands.
This concludes my statement. I would be happy to answer
questions.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing rules of the Senate, the Committee notes that no
changes in existing law are made by the bill S. 320, as ordered
reported.