Published Proposed Rule (81 FR 88173)

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
other information supporting a claim or
defense.
(f) Entry, inspection, and samples.
The requester must provide DoD a right
of entry at reasonable times to any
facility, establishment, place, or
property under the requester’s control
which is the subject of or associated
with the requester’s request for
indemnification or defense and must
allow DoD to inspect or obtain samples
from that facility, establishment, place,
or property.
(g) Additional information. The
Deputy General Counsel will advise a
requester in writing of any additional
information that must be provided to
adjudicate the request for
indemnification or defense. Failure to
provide the additional information in a
timely manner may result in denial of
the request for indemnification or
defense.
(h) Adjudication. The Deputy General
Counsel will adjudicate a request for
indemnification or defense and provide
the requester with DoD’s determination
of the validity of the request. Such
determination will be in writing and
sent to the requester by certified or
registered mail.
(i) Reconsideration. Any such
determination will provide that the
requester may ask for reconsideration of
the determination. Such reconsideration
shall be limited to an assertion by the
requester of substantial new evidence or
errors in calculation. The requester may
seek such reconsideration by filing a
request to that effect within 30 days of
receipt of determination. A request for
reconsideration must be received by the
Deputy General Counsel within 30 days
after receipt of the determination. Such
a request must be sent to the same
address as provided for in paragraph (a)
of this section and provide the
substantial new evidence or identify the
errors in calculation. Such
reconsideration will not extend to
determinations concerning the law,
except as it may have been applied to
the facts. A request for reconsideration
will be acted on within 30 days from the
time it is received. If a request for
reconsideration is made, the six month
period referred to in section 330(b)(1)
and section 1502(e)(2)(A) will
commence from the date the requester
receives DoD’s denial of the request for
reconsideration.
(j) Finality of adjudication. An
adjudication of a request for
indemnification constitutes final
administrative disposition of such a
request, except in the case of a request
for reconsideration under paragraph (i)
of this section, in which case a denial
of the request for reconsideration

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

constitutes final administrative
disposition of the request.
Dated: December 2, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2016–29367 Filed 12–6–16; 8:45 am]
BILLING CODE 5001–06–P

DEPARTMENT OF THE INTERIOR
Office of the Secretary of the Interior
43 CFR Part 49
Bureau of Land Management
43 CFR Part 8360
Fish and Wildlife Service
50 CFR Part 27
[Docket NPS–2016–0003; FWS–93261,
FXRS12630900000, FF09R81000, 167; BOR–
RR83530000, 178R5065C6, RX.59389832.
1009676; BLM–17X.LLW0240000.L10500000.
PC0000.LXSIPALE0000; NPS–GPO Deposit
Account 4311H2]
RIN 1093–AA16

Paleontological Resources
Preservation
Bureau of Land Management,
Bureau of Reclamation, National Park
Service, U.S. Fish and Wildlife Service;
Interior.
ACTION: Proposed rule.
AGENCY:

The Department of the
Interior (DOI) proposes to promulgate
regulations under the Paleontological
Resources Preservation Act.
Implementation of the proposed rule
would preserve, manage, and protect
paleontological resources on lands
administered by the Bureau of Land
Management, the Bureau of
Reclamation, the National Park Service,
and the U.S. Fish and Wildlife Service
and ensure that these federally owned
resources are available for current and
future generations to enjoy as part of
America’s national heritage. The
proposed rule would address the
management, collection, and curation of
paleontological resources from federal
lands using scientific principles and
expertise, including collection in
accordance with permits; curation in an
approved repository; and maintenance
of confidentiality of specific locality
data. The Paleontological Resources
Preservation Act authorizes civil and
criminal penalties for illegal collecting,
damaging, otherwise altering or
defacing, or for selling paleontological

SUMMARY:

PO 00000

Frm 00038

Fmt 4702

Sfmt 4702

88173

resources, and the proposed rule further
details the processes related to the civil
penalties, including hearing requests
and appeals of the violation or the
amount of the civil penalties.
DATES: Comments on the proposed rule
must be received by February 6, 2017.
Comments on the information collection
requirements must be received by
January 6, 2017.
ADDRESSES: You may submit comments,
identified by Regulation Identifier
Number (RIN) 1093–AA16, by any of the
following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments to
Docket No. NPS–2016–0003.
• Mail to: Julia Brunner, Geologic
Resources Division, National Park
Service, P. O. Box 25287 Denver, CO
80225–0287.
Instructions: All submissions received
must include the RIN for this
rulemaking. All comments received will
be posted without change to http://
www.regulations.gov, including any
personal information provided. For
additional information, see the Public
Participation heading of the
SUPPLEMENTARY INFORMATION section of
this document. Please make comments
on the proposed rule as specific as
possible, confine them to issues
pertinent to the proposed rule, and
explain the reason for any
recommended changes. Where possible,
comments should reference the specific
section or paragraph of the proposed
rule that is being addressed. DOI may
not necessarily consider or include in
the administrative record for the final
rule comments that are received after
the close of the comment period (see
DATES) or comments delivered to an
address other than those listed above
(see ADDRESSES).
Comments on the Information
Collection Aspects of the Proposed Rule:
You may review the Information
Collection Request online at http://
www.reginfo.gov. Follow the
instructions to review DOI collections
under review by OMB. Send comments
(identified by RIN 1093–AA16) specific
to the information collection aspects of
this proposed rule to:
• Desk Officer for the Department of
the Interior at OMB–OIRA at (202) 295–
5806 (fax) or OIRA_Submission@
omb.eop.gov (email); and
• Jeffrey Parrillo, Office of the
Secretary, Departmental Information
Collection Clearance Lead, Department
of the Interior, 1849 C Street NW.,
Mailstop MIB–7056, Washington, DC
20240 (mail); or jeffrey_parrillo@
ios.doi.gov (email).

E:\FR\FM\07DEP1.SGM

07DEP1

88174

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

System of Records Notice: The
Privacy Act of 1974 (5 U.S.C. 552)
protects the information submitted in
accordance with this part. A System of
Records Notice is being developed and
will be published in the Federal
Register.
Docket: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov and search for
Docket No. NPS–2016–0003.
FOR FURTHER INFORMATION CONTACT: Julia
F. Brunner, Geologic Resources
Division, National Park Service, by
telephone: (303) 969–2012 or email:
Julia_F_Brunner@nps.gov. Persons who
use a telecommunications device for
deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1–
800–877–8339 to contact the above
individual during normal business
hours. FIRS is available 24 hours a day,
7 days a week, to leave a message or
question with the above individuals.
You will receive a reply during normal
business hours.
SUPPLEMENTARY INFORMATION:

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

I. Background
In 1999, the Senate Interior
Appropriations Subcommittee requested
that DOI, the U.S. Department of
Agriculture (USDA) Forest Service (FS),
and the Smithsonian Institution prepare
a report on fossil resource management
on federal lands (see Sen. Rep. 105–227,
at 60 (1998)). The request directed these
entities to analyze (1) the need for a
unified federal policy for the collection,
storage, and preservation of fossils; (2)
the need for standards that would
maximize the availability of fossils for
scientific study; and (3) the
effectiveness of current methods for
storing and preserving fossils collected
from federal lands. During the course of
preparing the report, the agencies held
a public meeting to gather public input.
The DOI report to Congress,
‘‘Assessment of Fossil Management of
Federal and Indian Lands,’’ was
published in May 2000.
After the report was released, the
Paleontological Resources Preservation
Act (PRPA) was introduced in the 107th
Congress. PRPA was modeled after the
Archaeological Resources Protection Act
of 1979, as amended (16 U.S.C. 470aa–
470mm), and emphasized the
recommendations and guiding
principles in the May 2000 report. The
legislation was reintroduced in
subsequent Congresses through the
111th Congress when it was included as
a subtitle in the Omnibus Public Land
Management Act, which became law on

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

March 30, 2009. Legislative history 1
demonstrates that PRPA, which is now
codified at 16 U.S.C. 470aaa–aaa–11,
was enacted to preserve paleontological
resources for current and future
generations because these resources are
non-renewable and are an irreplaceable
part of America’s heritage. PRPA
requires that implementation be
coordinated between the Secretaries of
the Interior and Agriculture (16 U.S.C.
470aaa–1).
II. Development of the Proposed Rule
PRPA requires DOI and USDA to
issue regulations as appropriate to carry
out the law. Accordingly, DOI and
USDA formed an interagency
coordination team in April 2009 to draft
the proposed regulations. The
interagency coordination team included
paleontology and archaeology program
leads and regulatory specialists from the
Bureau of Land Management (BLM), the
National Park Service (NPS), the Bureau
of Reclamation (Reclamation), the U.S.
Fish and Wildlife Service (FWS) (the
bureaus), and the FS.
On May 23, 2013, the FS published a
proposed rule that would implement
PRPA with respect to National Forest
System lands (78 FR 30810). On April
17, 2015, the FS published these
regulations as final (80 FR 21588).
III. Section-by-Section Analysis of the
Proposed Rule
This proposed rule would address
management of paleontological
resources on federal lands under the
jurisdiction of the Secretary of the
Interior, and managed by BLM,
Reclamation, NPS, and FWS. The
proposed rule would amend title 43 of
the Code of Federal Regulations (CFR)
by adding a new part 49 entitled
‘‘Paleontological Resources
Preservation.’’ In accordance with 16
U.S.C. 470aaa–1, the proposed rule
would outline how the four bureaus
would manage, protect, and preserve
paleontological resources on federal
land using scientific principles and
expertise. Most of the proposed rule,
specifically subparts A through H,
would apply to all four bureaus. The
only exception is subpart I, which
would apply only to BLM and
Reclamation, governing casual
collecting (collecting common
invertebrate and plant paleontological
resources without a permit) on certain
1 S. 2727: 148 Cong. Rec. S. 6708–6709 (2002)
(Statement of Sen. Akaka); S. 546: S. Rep. 108–93
(2003); S. 263: S. Rep. 109–36 (2005); S. 320: 153
Cong. Rec. S. 691–693 (2007) (Statement of Sen.
Akaka) and S. Rep. 110–18 (2007); H.R. 554: H. Rep.
110–670, Part 1; and S. 22: 155 Cong. Rec. S. 426
(2009) (Statement of Sen. Akaka).

PO 00000

Frm 00039

Fmt 4702

Sfmt 4702

lands administered by those bureaus.
PRPA does not allow casual collecting
in areas administered by NPS or FWS,
and therefore subpart I would not apply
to these two bureaus. The following is
a section-by-section analysis of subparts
A through I.
Managing, Protecting, and Preserving
Paleontological Resources (Subpart A)
What does this part do (§ 49.1)?
Proposed § 49.1 would restate the
purposes of PRPA and summarize the
contents of the proposed rule.
What terms are used in this part
(§ 49.5)?
Proposed § 49.5 would define certain
terms used in the proposed rule. The
bureaus believe that most of the terms
are readily understood, but discuss the
following in more detail below:
Associated records would mean
original records or copies of those
records, in the context of collections. If
original records are not available for
some reason, copies of those records are
acceptable. Associated records would
include primary, public, and
administrative records.
Authorized officer would mean the
bureau director or employees to whom
the Secretary of the Interior has
delegated authority to make a decision
or to take action, or both, under PRPA.
Bureaus may have multiple authorized
officers. The authorized officer consults
as appropriate with bureau technical
specialists, outside experts, bureau
partners, museum curators, or others in
making decisions and taking action.
Collection would mean
paleontological resources removed from
geological context or taken from federal
lands and any associated records,
consistent with the definition of
museum property in Part 411 of the
Departmental Manual (411 DM).
Because permits may be issued only to
further paleontological knowledge,
public education, or management of
paleontological resources, any
collections made under those permits
should likewise further these goals.
Such collections would be deposited in
an approved repository. Paleontological
resources that are determined by the
authorized officer as not furthering or
no longer furthering paleontological
knowledge, public education, or
management of paleontological
resources (such as resources that lack
provenience or are overly redundant)
may, nevertheless, because they are still
of paleontological interest and provide
information about the history of life on
earth, be assigned to project or working

E:\FR\FM\07DEP1.SGM

07DEP1

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
collections, including non-museum
collections.
Curatorial services would mean
managing and preserving a museum
collection over the long term according
to DOI (currently 411 DM) and bureau
museum and archival standards and
practices.
Nature would mean physical features,
identifications, or attributes of the
paleontological resource. Including this
definition in the proposed regulations
would clarify the type of information
that PRPA exempts from disclosure.
Paleontological resources would
mean any fossilized remains, traces, or
imprints of organisms preserved in or
on the Earth’s crust, except for:
(1) Those that are found in an
archaeological context and are an
archaeological resource as defined in
section 3(1) of the Archaeological
Resources Protection Act of 1979 (16
U.S.C. 470bb(1)); or
(2) Cultural items, as defined in
section 2 of the Native American Graves
Protection and Repatriation Act (25
U.S.C. 3001 et seq.); or
(3) Resources determined in writing
by the authorized officer to lack
paleontological interest or not provide
information about history of life on
earth, based on scientific and other
management considerations.
Thus, under PRPA and the proposed
regulation, fossils are ‘‘paleontological
resources’’ unless they are found in an
archaeological context and are
archaeological resources, or are cultural
items under the Native American Graves
Protection and Repatriation Act, or are
determined by an authorized officer to
lack paleontological interest or not
provide information about the history of
life on earth.
An example of a fossil that is found
in an archaeological context and is
therefore an archaeological resource
would be a fossil that was collected by
prehistoric peoples and is now part of
an archaeological site. In this case, the
fossil has been removed from its original
geological context and is now important
primarily for its archaeological
informational value. A fossil found in
an archaeological context is not a
paleontological resource under PRPA or
the proposed rule, but may still have
scientific value for paleontological
investigations and be protected under
other authorities. Fossils that are merely
in geographical proximity to
archaeological resources but are not
necessarily in an archaeological context,
are therefore not necessarily
archaeological resources.
Fossils that the authorized officer
determines to not have paleontological
interest or not provide information

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

about the history of life on earth, such
as fossil fuel deposits or limestone
units, would not be considered
paleontological resources under PRPA
or the proposed rule, although they
would remain subject to other laws and
regulations. For example, fossils on
NPS-administered lands that are not
considered paleontological resources
would still be protected as natural and
cultural resources under the NPS
Organic Act of 1916, NPS regulations,
and NPS policies. As another example,
fossils on BLM-administered lands that
are not considered paleontological
resources would still be subject to
consideration under the Federal Land
Policy and Management Act of 1976
(FLPMA), thus allowing BLM to track
and report scientific activities, such as
research on non-vertebrate microfossils,
without requiring that those fossils be
managed as paleontological resources or
otherwise be subject to PRPA.
Petrified wood is managed as a
paleontological resource when on or
from lands administered by NPS,
Reclamation, and FWS. On lands
administered by BLM, petrified wood
(defined by the Petrified Wood Act of
1962, Pub. L. 87–713, 76 Stat. 652, Sept.
28, 1962 as agatized, opalized, petrified,
or silicified wood, or any material
formed by the replacement of wood by
silica or other matter, and identified as
a mineral material under the Materials
Act of 1947) is subject to commercial
sale at 43 CFR part 3600 and free use
regulations at 43 CFR part 3622.
Therefore, on BLM lands, petrified
wood may be managed as a
paleontological resource, but the savings
provisions in PRPA (16 U.S.C. 470aaa–
10) prevent the imposition of additional
restrictions on the sale or free use of
petrified wood. When it is not subject to
sale or free use, petrified wood on BLMadministered lands may be managed as
a paleontological resource and/or under
the authority of FLPMA.
Geological units including but not
limited to limestones, diatomites, chalk
beds, and fossil soils (i.e., paleosols)
would not be considered
paleontological resources under the
proposed rule. However, the occurrence
of discrete paleontological resources
within geological units would be
considered paleontological resources
and, therefore, subject to PRPA and the
proposed rule. Determinations about
whether a fossil is or is not a
paleontological resource would be
committed to the authorized officer’s
discretion, based on scientific or other
management considerations. A
determination that a fossil is or is not a
paleontological resource may be
reversed at a later time, at the

PO 00000

Frm 00040

Fmt 4702

Sfmt 4702

88175

authorized officer’s discretion, based on
scientific or other management
considerations.
Fossils such as conodonts and
nonvertebrate microfossils would be
considered paleontological resources
when they, as part of a scientific
research design, provide critical
information toward the understanding
of geological units, biological evolution,
climate change, and other scientific
questions. However, in accordance with
section 6311 of PRPA, the proposed rule
would not require a permit for the
collection of conodonts or nonvertebrate
microfossils in association with
authorized oil, gas, geothermal, or other
minerals activities that are permitted
under other authorities. Casual
collection of conodonts or nonvertebrate
microfossils may be permissible on
certain BLM- or Reclamation-managed
lands consistent with the limitations
defined in subpart I of the proposed
rule. Bureaus may individually
determine that certain conodonts or
nonvertebrate microfossils lack
paleontological interest and therefore
are not paleontological resources on all
or on portions of land they administer.
When paleontological resources on
certain BLM- and Reclamation-managed
lands are common plant or invertebrate
fossils, they may be casually collected
in compliance with subpart I of the
proposed rule. They are still
paleontological resources (meaning that
they have paleontological interest and
provide information about the history of
life on earth), but PRPA authorizes the
limited collection of these resources on
lands administered by BLM and
Reclamation where such collection is
consistent with the laws governing the
management of those lands, PRPA, and
subpart I of the proposed rule.
Paleontological site would mean a
locality, location, or area where a
paleontological resource is found; the
site can be relatively small or large. The
definition of paleontological site is
never synonymous with ‘‘archaeological
site’’ as used in 43 CFR part 7.
Working collection would mean
paleontological resource collections that
are not intended for long-term
preservation and care as museum
collections. Departmental policy on
working collections is expanded in
Section 1.7, 411 DM, Identifying and
Managing Museum Property.
Does this part affect existing authorities
(§ 49.10)?
Proposed § 49.10 would state that the
proposed rule preserves the authority of
the Secretary of the Interior under this
and other laws and regulations to
manage, protect, and preserve

E:\FR\FM\07DEP1.SGM

07DEP1

88176

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

paleontological resources on federal
land under the jurisdiction of the
Secretary. PRPA and the proposed rule
complement the bureaus’ other
authorities for paleontological resource
management. The proposed rule would
be consistent with existing bureau
practices and would clarify the
responsibilities of the bureaus to
preserve, protect, and manage
paleontological resources.
When does this part not apply (§ 49.15)?
Proposed § 49.15 would state that the
proposed rule does not impose
additional requirements on activities
permitted under the general mining or
mineral laws, does not apply to Indian
land, and does not apply to land other
than federal land as defined in the
proposed rule. This is consistent with
the savings provisions of the PRPA. This
section means that the bureaus will not
add requirements under PRPA and the
proposed rule to mining- and mineralrelated permits. For example, the
bureaus may not cite PRPA or the
proposed rule in the list of mitigation
measures that is attached to an
approved mining plan of operations.
However, because PRPA and the
proposed rule do not limit the
applicability of other legal authorities
such as the Mining in the Parks Act and
FLPMA, the bureaus may continue to
cite those other authorities as protection
for paleontological resources when
authorizing or conditioning land or
resource uses under those authorities.
This section would also clarify that,
under PRPA, the word ‘‘reclamation’’
means reclamation in the context of
mining and mineral activities and not
the broader context of all federal
reclamation activities.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Does this part create new rights or
entitlements (§ 49.20)?
Proposed § 49.20 would state that the
proposed rule would not create a right
or standing to file suit for persons who
are not officers or employees of the
United States acting in that capacity. It
would repeat section 6311 of PRPA (16
U.S.C. 470aaa–10) for public notice and
clarity.
What information concerning the nature
and specific location of paleontological
resources is confidential (§ 49.25)?
Proposed § 49.25 would implement
the provision in PRPA that exempts
information about the nature and
specific location of a paleontological
resource from disclosure under the
Freedom of Information Act and any
other law unless the authorized officer
determines that disclosure would: (1)
Further the purposes of PRPA; (2) not

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

create risk of harm to or theft or
destruction of the resource or site
containing the resource; and (3) be in
accordance with other applicable laws.
This proposed section would also
require a written agreement between the
bureau and the party seeking the
disclosure, which would ensure that the
recipient of the disclosure does not
publicly distribute or otherwise release,
disclose, or share the information. For
example, a partner repository would not
be permitted to post specific locality
information on-line, but if authorized to
do so in a written agreement could still
share such information for educational
or scientific uses that would not create
harm or risk to the resource. The
agreement to maintain confidentiality of
released information would ensure that
the release of confidential information
in one situation would not trigger the
requirement of the bureau to release that
same information to other requestors.
How will the bureaus conduct
inventory, monitoring, and preservation
activities (§ 49.30)?
Proposed § 49.30 would explain that
the bureaus will conduct inventory,
monitoring, and preservation activities
based upon scientific and resource
management principles and practices,
and clarify that these activities are
undertaken by each bureau internally or
may be coordinated with other agencies,
non-federal partners, scientists, and the
general public where appropriate and
practical. Such coordination might take
place through mechanisms such as
agreements, permits, grants, citizen
science efforts, or other arrangements.
For public notice and clarity, § 49.30
would repeat section 6302 of PRPA, 16
U.S.C. 470aaa–1.
How will the bureaus foster public
education and awareness (§ 49.35)?
Proposed § 49.35 would explain that
the bureaus will establish a program to
increase public awareness, coordinated
with other agencies, non-federal
partners, scientists, and the general
public where appropriate and practical.
National Fossil Day, an annual multiagency and multi-partner event, is a
successful example of how the bureaus
are already working to increase public
awareness. For public notice and clarity,
§ 49.35 would repeat section 6303 of
PRPA, 16 U.S.C. 470aaa–2.
When may the bureaus restrict access to
an area (§ 49.40)?
Proposed § 49.40(a) would state that
the authorized officer may restrict
access to or close areas to collection to
protect resources or provide for public
safety. For public notice and clarity,

PO 00000

Frm 00041

Fmt 4702

Sfmt 4702

paragraph (a) would repeat section
6304(e) of PRPA, 16 U.S.C. 470aaa–3(e).
Proposed § 49.40(b) would clarify that
other authorities may also be used to
restrict access to or close areas in order
to preserve or protect paleontological
resources or provide for public safety.
This authority supplements the bureaus’
existing authority and procedures for
restricting access to areas or closing
areas to collection (see BLM regulations
at 43 CFR 8364.1; Reclamation
regulations at 43 CFR 423.29; FWS
regulations at 50 CFR 25.21; and NPS
regulations at 36 CFR 1.5).
Paleontological Resources Permitting—
Requirements, Modifications, and
Appeals (Subpart B)
Since 1906, the bureaus have
permitted the collection of
paleontological resources under various
legal and regulatory authorities.
Permitting will continue under PRPA
and the proposed regulations.
When is a permit required on federal
land (§ 49.50)?
Proposed § 49.50 would clarify when
a permit is required and who must have
a permit. A permit would be required
for collecting paleontological resources
or disturbing paleontological sites
except for casual collecting on certain
lands managed by BLM or Reclamation
where casual collecting is allowed. The
conditions for casual collecting are
defined in subpart I of this proposed
rule. Proposed § 49.50(b) states a permit
may be required by a bureau for
paleontological investigative activities
that do not involve collection or
disturbance in order to track and report
on scientific activities or for other
purposes. Proposed § 49.50(c) states a
permit would be required for federal
employees to disturb paleontological
sites or collect paleontological resources
although bureaus may implement this
requirement on a programmatic basis,
consistent with their internal processes.
The bureau personnel so authorized
must meet the professional
requirements defined in § 49.60 of the
proposed rule, and have experience
appropriate to the planned work. The
approval must be issued by the bureau
managing the land. All collected
materials are the property of the Federal
Government, and must be managed and
curated consistent with the
requirements of subpart C of the
proposed rule.
Who can receive a permit (§ 49.55)?
Proposed § 49.55 would establish that
applicants who meet the qualification
requirements of proposed § 49.60,
provide a complete application, and

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
meet the permit issuance criteria may
receive a permit. This proposed section
would not affect valid permits issued
before the effective date of the proposed
rule.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

What criteria must a permit applicant
meet (§ 49.60)?
Proposed § 49.60(a)(1)–(4) would
describe qualifications needed for an
applicant to receive a permit. PRPA
requires the bureaus to ensure that
proposed work under a permit will
further paleontological knowledge or
public education and that the applicant
is qualified to carry out the permitted
activity. In order to accomplish both
requirements, the proposed regulations
would require the applicant and others
overseeing work under the permit to
have experience and qualifications in
paleontology appropriate to the tasks
they are to perform. For the applicant,
an advanced degree in paleontology or
equivalent experience and prior field
experience has been the baseline for this
requirement for all of the bureaus for
more than 20 years and is consistent
with similar policy for archaeology
permits that are authorized under the
Archaeological Resources Protection Act
of 1979. The authorized officer may
grant a permit to an applicant who lacks
an advanced degree or specialized
experience if the authorized officer is
satisfied that the applicant’s education
and experience are sufficient to carry
out the work that is proposed. The
authorized officer may grant the permit,
grant the permit with limitations, or
deny the permit based on the
applicant’s education, experience, and
past performance, and qualifications of
persons named in the application as
overseeing work.
Proposed § 49.60(b) states that past
performance will also be considered,
and includes any aspect that could
affect performance under the permit
being applied for. This would include
compliance with previous permits,
relevant civil or criminal violations, or
relevant indictments or charges.
Where must a permit application be
filed and what information must it
include (§ 49.65)?
In order to ensure consistency among
bureaus, proposed § 49.65 lists the
information that a permit applicant is
required to provide before a bureau can
issue a permit under this subpart.
Proposed § 49.65(a) would require
permit applicants to submit an
application to the bureau that
administers the federal land where the
proposed activity would be conducted.
For activities on lands administered by
BLM, Reclamation, and FWS, permit

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

applicants would use DI Form 9002
(Paleontological Resource Use Permit
Application). For activities on lands
administered by NPS, permit applicants
would use NPS’s Research Permit and
Reporting System (RPRS). This
paragraph would also clarify that it is
the permit applicant’s responsibility to
determine which bureau has
jurisdiction, use that bureau’s permit
application form and process, and
respond to that bureau’s requests for
information in a timely manner.
Proposed § 49.65(b) would describe
the information requirements that the
permit application forms would
include.
How will a bureau make a decision
about a permit application (§ 49.70)?
Proposed § 49.70(a) and (b) would
identify how a bureau evaluates and
decides on a permit application.
Because permit approval would be
partially based on whether the proposed
repository for the collection under the
permit would meet the standards of 411
DM, proposed § 49.70(c) would require
the authorized officer to work with the
permit applicant and proposed
repository to decide whether to approve
that repository for the collection. The
phrase ‘‘the authorized officer may’’
means that the authorized officer has
discretion to approve or deny a permit
based on information provided by the
applicant, past and present
performance, management
considerations, bureau policy, and other
considerations.
What terms and conditions will a permit
contain (§ 49.75)?
Proposed § 49.75(a) would specify
that a permit would include but not be
limited to certain terms and conditions.
Section 6304 of PRPA lists three
required permit terms and conditions.
The proposed rule would require
additional terms and conditions in order
to enhance consistency among bureaus
as emphasized by section 6302(b) of
PRPA. For approved activities on lands
administered by BLM, Reclamation, and
FWS, the authorized officer would issue
the permit using DI Form 9003
(Paleontological Resource Use Permit).
For approved activities on lands
administered by NPS, the authorized
officer would issue the permit under the
NPS RPRS.
Proposed § 49.75(a)(3) would clarify
that the permittee is responsible for
ensuring that the resource site or
recovered paleontological materials are
not put at risk as a result of work that
is done under the permit. For example,
if fossils are exposed by collection or
excavation, they must be protected from

PO 00000

Frm 00042

Fmt 4702

Sfmt 4702

88177

damage, theft, or other harm for the
period they are exposed to risk.
Additionally, the permit would not
authorize permittees to modify the
environment around an area of work.
For example, permittees would not be
allowed to cut trees, create roads, or
grade parking areas.
Proposed § 49.75(a)(8) would require
a permittee to report suspected resource
damage or theft to the authorized officer
after learning of such damage or theft.
Such reporting should be done as soon
as possible, but in all cases must be
done within 48 hours. Based on the
bureaus’ experience, 48 hours is a
reasonable timeframe for such reporting.
Proposed § 49.75(a)(9) would clarify
that collections made under a permit
must be deposited in the approved
repository, and that the permittee must
notify the bureau of the deposit. The
notification of deposit is required
because the bureau must know the
nature, condition, and location of
federally owned paleontological
resources in order to meet PRPA’s
mandate to manage these resources
using scientific principles and expertise,
and to meet Departmental museum
management requirements.
Documentation of the transfer of
paleontological resources from the care
of the permittee to the care of the
approved repository is necessary so that
the bureau, the permittee, and the
approved repository will each know
which party is responsible for the care
and management of the paleontological
collection.
To avoid a situation where bureaus or
repositories could have large collections
of paleontological resources that are
costly to maintain or no longer
contribute to science, the proposed rule
would allow the authorized officer to
determine that specimens that are found
to be redundant, lack adequate
associated data, or otherwise are
determined not to further
paleontological knowledge, public
education, or management of
paleontological resources may be
removed from museum collections and
placed into working collections.
Proposed § 49.75(a)(10) would clarify
that all paleontological resources
collected under a permit remain federal
property. The resources that are not
collected, but instead are left in situ or
otherwise are left in the field by the
permittee, also remain federal property.
Removal of any paleontological
resources from federal land not in
accordance with this subpart may
constitute theft of federal property.
Proposed § 49.75(a)(12) would state
that the permittee is responsible for the
costs of carrying out the permitted

E:\FR\FM\07DEP1.SGM

07DEP1

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

88178

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

activity, including curation costs,
consistent with specific or
programmatic direction from the
authorized officer.
Proposed § 49.75(a)(13) would require
a permittee to provide reports as
required by the bureau in the permit.
The permittee will ensure that reports
are submitted in a timely fashion and
contain the information necessary to
ensure accountability for federal
resources. For activities that were
conducted on lands administered by
BLM, Reclamation, or FWS, reports
would be submitted using DI Form 9005
(Paleontological Permit Report Cover
Sheet) or DI Form 9006 (Paleontology
Consulting Report Summary Sheet). For
activities that were conducted on lands
administered by NPS, reports would be
submitted under the NPS RPRS.
Proposed § 49.75(a)(16) would state that
a permittee may not transfer the permit
to another person.
Proposed § 49.75(b) would authorize
the bureau to hold a permittee
responsible for complying with
applicable permit terms and conditions
after it has expired or been cancelled,
suspended, or revoked. Like all terms
and conditions, this requirement would
be enforceable under the criminal and
civil penalties provision of this part,
and would enable bureaus to preserve
paleontological resources and maintain
accountability by requiring that affected
resource sites be left in a good
condition, collections be transferred to
the approved repository in a timely
manner, that associated records be
produced, and that reports be
submitted, regardless of the status of the
permit.
Proposed § 49.75(c) would provide
that the authorized officer may include
in the permit additional terms and
conditions necessary to carry out the
purposes of this part.
Proposed § 49.75(d) would provide
that for activities approved on lands
administered by BLM or Reclamation,
the authorized officer may provide a
permittee with DI Form 9007
(Paleontology Work Notice to Proceed),
which contains site-specific guidance
and stipulations for the permittee. The
Notice to Proceed is considered part of
or an addendum to the permit. Proposed
§ 49.75(e) would provide that persons
who do not comply with the terms of a
permit issued under this part may be
subject to civil or criminal penalties.
When and how may a permit be
modified, suspended, revoked, or
cancelled (§ 49.80)?
Proposed § 49.80 would identify
when and how a permit may be
modified, suspended, revoked, or

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

cancelled. The authorized officer would
notify a permittee of such actions
verbally or in writing. Any verbal
notification would be confirmed by a
written order delivered as soon as
practicable after issuance of the verbal
order. The notification would be
immediately effective upon the
permittee’s receipt of the verbal or
written notification, whichever is
received first.
Proposed § 49.80(a) would identify
when a permit may be modified.
Common permit modifications may
include changing the duration of a
permit, changing personnel that are
named on a permit, changing the
geographic area that is authorized under
a permit, making minor modifications to
the stratigraphic context or scope of
work, or adding or altering
supplemental terms and conditions to a
permit. These modifications may be
requested by the permittee or initiated
by the bureau. The authorized officer
may issue a new permit or require the
permittee to submit a new application
when a modification would
substantially change the scope of the
existing permit.
Proposed § 49.80(b) would identify
when activities under a permit may be
suspended. Common reasons for a
suspension include the discovery of
potential resource conflicts, failure of
the permittee to follow terms and
conditions, resource protection issues,
or budget or staffing concerns. A
suspension would last no longer than 45
days, and may be lifted by the
authorized officer when the reasons for
suspension no longer apply, or when
conditions for lifting a suspension have
been met. After 45 days, if the
circumstances prompting the
suspension have not been resolved, the
suspension will end and the authorized
officer may modify, revoke, or cancel
the permit, as appropriate to the specific
circumstance.
Proposed § 49.80(c) would identify
when a permit may be revoked. A
permit will be revoked when, for
example, a permittee fails to follow the
terms and conditions of a permit, is
charged with a civil or criminal
violation under PRPA or under other
applicable laws, or is found ineligible to
hold a paleontology permit.
Proposed § 49.80(d) would identify
when a permit may be cancelled.
Cancellation would differ from
revocation in that it would terminate a
permit for reasons that do not relate to
improper or poor performance on the
part of the permittee. Cancellation is not
a negative action and should not be
cause to deny a future permit to the
applicant. Cancellation may occur when

PO 00000

Frm 00043

Fmt 4702

Sfmt 4702

administrative or resource issues
warrant, and may follow a 45-day
suspension, or may occur without a
suspension occurring. A permittee may
request a permit to be cancelled for any
reason, or the bureau may need to
cancel the permit for administrative or
management reasons. Although PRPA
does not specifically reference permit
cancellation, the proposed regulations
include this option because permit
cancellation is a form of permit
modification (changing the end date of
the permit) and is therefore within the
scope of PRPA.
Proposed § 49.80(e) would specify
that the authorized officer will notify a
permittee of the modification,
suspension, revocation, or cancellation
either verbally or in writing. Proposed
§ 49.80(f) would specify that
notifications of modification,
suspension, revocation, or cancellation
are effective upon the permittee’s
receipt of the written notification.
Can a permit-related decision be
appealed (§ 49.85)?
Authorized officers have discretion to
make permit-related decisions based on
information provided by the applicant,
past and present performance,
management considerations, bureau
policy, and other considerations.
Proposed § 49.85 would state that
permit-related decisions may be
appealed.
What is the process for appealing a
permit-related decision (§ 49.90)?
Proposed § 49.90 would specify the
processes for appealing permit-related
decisions. BLM and FWS each have
applicable regulations, and NPS already
has a process in place. Reclamation will
develop an appeals process for permit
decisions and will document the
process in Reclamation’s system of
written directives. The appeals process
may include a review by the applicable
Reclamation Regional Director, followed
by appeal to Reclamation’s
Commissioner, similar to the process in
place for land use decisions found at 43
CFR part 429.
Has OMB approved the information
collection provisions of this part
(§ 49.95)?
Proposed § 49.95 would describe the
information collection status of this
part.
Management of Paleontological
Resource Collections (Subpart C)
The proposed requirements provided
in subpart C are consistent with
requirements provided for

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
archaeological collections at 36 CFR
part 79.
Where are collections deposited
(§ 49.200)?
Proposed § 49.200 would clarify that
collections made under a permit issued
under this part must be deposited in a
repository approved by the authorized
officer. Collections made prior to the
effective date of the proposed rule
would be subject to the terms and
conditions of the original collection
permit or agreement, which is also
consistent with guidance in current DOI
museum policy.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

How will bureaus approve a repository
for a collection made under this part
(§ 49.205)?
Proposed § 49.205(a) would grant the
authorized officer discretion to approve
a repository for a collection based on
several factors, including appropriate
scope of collections, qualified curation
staff, adequate public access,
compliance with DOI museum
collection standards, and consistency
with bureau management goals.
Approval of a repository is necessary for
both federal and non-federal
repositories.
Proposed § 49.205(b) would clarify
that when the authorized officer
approves a repository for the collection,
that repository will be listed in the
approved permit and will remain
approved to curate the collection unless
the authorized officer determines that
any one of the considerations in
paragraph (a) of this section is no longer
met. In that case, the repository would
be notified and would have a reasonable
amount of time to:
(1) Correct the deficiency;
(2) Move the collection to another
approved repository; or
(3) Take other actions the authorized
officer requests.
In situations involving movement of
the collection to another approved
repository, the first repository would
likely ship the collection to the second
repository in accordance with the
authorized officer’s instructions. The
bureau would then close the deposit
agreement with the first repository and
enter into a new agreement with the
second repository.
What is the process for depositing the
collection at the approved repository
(§ 49.210)?
Proposed § 49.210 would clarify the
process for depositing paleontological
collections at the approved repository.
Under proposed § 49.210(a), the
authorized officer would work with the
permittee and approved repository,

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

using scientific principles and expertise,
to ensure that the collection is complete
and that the content of the collection
would further paleontological
knowledge, public education, or
management of paleontological
resources. In addition, the authorized
officer would review any existing
agreement between the bureau and the
approved repository to determine if that
agreement adequately addresses
requirements that are specific to the
collection and either develop a new
agreement, or amend an existing
agreement, if an adequate agreement
does not exist.
Under proposed § 49.210(b), the
permittee or the repository would
submit DI Form 9008 (Repository
Receipt for Collections (Paleontology))
to the authorized officer. This form
would include but not be limited to a
certification by the permittee that the
collection was deposited at the
repository, and a certification by the
approved repository’s authorized
official that the collection has been
received.
For repository managers concerned
that the curation requirements of PRPA
and the proposed rule could lead to
unrealistic or burdensome curation
requirements, the proposed rule
addresses these concerns in three ways.
First, a repository may agree or decline
to curate a collection of paleontological
resources. Second, the authorized
officer is ultimately responsible for
determining the content of the
collection, with input from the
permittee and the repository, and
ensuring that the collection meets
bureau management goals. Third, the
proposed rule specifies that the
standard for collection under permit
and deposit into an approved repository
is that the collection furthers
paleontological knowledge, public
education, or management goals for
paleontological resources. If a proposed
collection would not meet this standard,
then the collection should not be
permitted. If the authorized officer
determines that a collection formerly
met this standard but no longer does,
then part or all of the collection may be
removed from the approved repository,
transferred to a working collection, or
managed in other ways consistent with
DOI standards in 411 DM and bureau
museum management procedures. Note
that, in such a circumstance, that
collection is still comprised of
paleontological resources. If the
specimens in a collection are
determined by the authorized officer to
no longer have paleontological interest
or provide information about the history
of life on earth, then they are not

PO 00000

Frm 00044

Fmt 4702

Sfmt 4702

88179

paleontological resources as defined in
PRPA and the proposed rule. All of
these aspects of the proposed rule
should ameliorate the concerns of
repository managers that the
requirements in PRPA would be
burdensome.
What terms and conditions must the
agreement between the bureau and
approved repository contain (§ 49.215)?
Proposed § 49.215 would specify the
terms and conditions that must be
included in an agreement between the
bureau and the repository. The terms
and conditions provided in this section
are consistent with 411 DM. Several of
these terms and conditions are
addressed below for further
clarification.
First, proposed § 49.215(a)(2) would
clarify that the Federal Government
retains ownership of all paleontological
resources collected under a permit,
regardless of where the resources reside,
who discovered or collected them, or
who assumes administrative
responsibility for their care. Bureaus
may transfer all or portions of
collections of paleontological resources
to other federal bureaus (including the
Smithsonian) either by loan or by
administrative transfer without
changing the fact that they are owned by
the Federal Government.
Proposed § 49.215(a)(6) requires that
agreements describe any special
procedures or restrictions for access to
controlled property, consumptive use,
reproduction, or curatorial services,
including loans. These terms are all
defined in 411 DM.
Proposed § 49.215(a)(11) would
clarify that one of the terms and
conditions is a statement that employees
cannot take any action that results in
collection encumbrance, seizure, theft,
damage, or other issues, and closely
follows 36 CFR part 79 and DOI policy
in 411 DM. The prohibition against
damaging a collection does not prevent
consumptive use that is approved by the
bureau in a permit, agreement, or other
written documentation.
What are the standards for managing the
collections (§ 49.220)?
Proposed § 49.220 would provide
standards for managing collections
made under this part that are consistent
with DOI policy for the management of
museum collections found at 411 DM.
Particular provisions of this proposed
section are addressed below.
Proposed § 49.220(a)(1) would make
collections and locality data available
subject to the confidentiality provisions
of the proposed rule and PRPA.

E:\FR\FM\07DEP1.SGM

07DEP1

88180

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

Proposed § 49.220(b) would authorize
repositories to charge reasonable fees,
consistent with applicable law, to cover
their costs of making federal
paleontological resources available to
the public.
Prohibited Acts (Subpart D)
What acts are prohibited (§ 49.300)?
For public notice and clarity,
proposed § 49.300 would restate the
prohibitions contained in section 6306
of PRPA (16 U.S.C. 470aaa–5). Under
PRPA and this section, a person may
not:
(a) Excavate, remove, damage, or
otherwise alter or deface or attempt to
excavate, remove, damage, or otherwise
alter or deface any paleontological
resource located on federal land unless
this activity is conducted in accordance
with PRPA and this part. For example,
this would prohibit moving or
relocating a paleontological resource
from its in situ geologic context without
authorization under the proposed rule.
Such authorization would be in the
form of a permit or casual collection
consistent with subpart I of this part.
(b) Exchange, transport, export,
receive, or offer to exchange, transport,
export, or receive any paleontological
resource if the person knew or should
have known such resource to have been
excavated or removed from federal land
in violation of any provision, rule,
regulation, law, ordinance, or permit in
effect under federal law, including
PRPA and this part.
(c) Sell or purchase or offer to sell or
purchase any paleontological resource if
the person knew or should have known
such resource to have been excavated,
removed, sold, purchased, exchanged,
transported, or received from federal
land.
(d) Make or submit any false record,
account, or label for, or any false
identification of, any paleontological
resource excavated or removed from
federal land. This provision would
apply when a person knew or should
have known that information was false,
or when there was intent to deceive,
misrepresent, or mislead.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Criminal Penalties (Subpart E)
What criminal penalties apply to
violations of this part (§ 49.400)?
Proposed § 49.400 would describe
what criminal penalties apply to
persons who commit prohibited acts
under this part. Bureaus may utilize
other authorities to issue citations for
criminal violations involving
paleontological resources.
Proposed § 49.400(a) would state that
criminal penalties would not apply with

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

respect to paleontological resources in
the lawful possession of a person on or
before March 30, 2009, which is the date
that PRPA was enacted.
Proposed § 49.400(b) would authorize
penalties upon conviction for persons
who knowingly violate or counsel,
procure, solicit, or employ another
person to violate subpart D of this
proposed rule. If the value of the
paleontological resources involved
(which means the sum of the
commercial and scientific value of the
paleontological resources involved and
the cost of response, restoration, and
repair of the resources and sites
involved) is more than $500, penalties
would be assessed in accordance with
Title 18 of the U.S. Code and/or may
include imprisonment for up to 5 years.
If the value of the paleontological
resources involved is less than $500,
penalties would be assessed in
accordance with Title 18 of the U.S.
Code and/or may include imprisonment
for up to 2 years. A court may award
restitution, which may also be called
penalties or damages, to the bureau for
injuries to paleontological resources, in
lieu of or in addition to fines.
Proposed § 49.400(c) would state that
the term ‘‘value of the paleontological
resources involved’’ would be explained
in subpart G of this proposed rule.
Proposed § 49.400(d) would state that
in the case of a second or subsequent
violation by the same person, the
amount of the penalties assessed under
this subpart may be doubled.
Proposed § 49.400(e) would authorize
law enforcement officers to issue
citations for minor violations under the
bureaus’ existing enforcement
authorities, such as misdemeanor
penalties, rather than relying solely on
the criminal penalties provided by
PRPA.
Civil Penalties (Subpart F)
When can the authorized officer assess
a civil penalty (§ 49.500)?
Proposed § 49.500 would state that
the authorized officer may assess a civil
penalty upon any person who violates
the provisions of the proposed rule or a
permit issued under the proposed rule,
and that each violation would be
considered a separate offense.
How does the authorized officer serve a
notice of violation (§ 49.505)?
Proposed § 49.505 would state the
authorized officer may serve a notice of
violation in person, by certified mail,
return receipt requested, or other
verifiable delivery method upon a
person that the authorized officer
believes has committed a violation of
the proposed rule.

PO 00000

Frm 00045

Fmt 4702

Sfmt 4702

What is included in the notice of
violation (§ 49.510)?
Proposed § 49.510 would describe the
contents of a notice of violation.
How is an objection to a notice of
violation made and proposed civil
penalty made and resolved (§ 49.515)?
Proposed § 49.515 would state that a
person who receives a notice of
violation and proposed civil penalty has
30 days from the date of receipt in
which to file a written objection with
the authorized officer. The person must
state the reasons for the objection,
provide any supporting documentation,
and sign the objection.
By written notice, the authorized
officer would sustain or deny the
objection based on the information in
the objection and any information
provided upon request. If the authorized
officer concludes there was no violation,
the objection would be sustained, the
notice of violation revoked, and no civil
penalty would be assessed. If the
authorized officer finds that a violation
occurred, the objection would be
denied. If the authorized officer finds
that a violation occurred but the
proposed civil penalty was too high, the
objection would be denied in part and
sustained in part.
When will the authorized officer issue
a final assessment of civil penalty
(§ 49.520)?
Proposed § 49.520 would state that if
the person who was served with a
notice of violation and proposed civil
penalty does not file a timely objection,
or files a timely objection which is
denied, the authorized officer would
issue a final assessment of civil penalty.
How will the authorized officer
calculate the amount of a proposed and
final assessment of civil penalty
(§ 49.525)?
Proposed § 49.525 would explain the
factors that the authorized officer will
take into account when calculating a
proposed and a final assessment of civil
penalty. For a first violation, the
authorized officer considers the factors
listed in § 49.525(a) and (b) and assesses
a penalty. For example, the penalty
might be $1,000.
Under proposed § 49.525(c), penalties
for subsequent violations may be
doubled. Thus, if a person who has
already been assessed a civil penalty for
a particular violation commits another
prohibited act, the authorized officer
may double the penalty for that act. For
example, if the penalty for the second
prohibited act would be $1,200 under
the factors listed in paragraphs (a) and
(b) of this section, the authorized officer

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
would have the discretion to double this
penalty and assess the person $2,400.
When doubling penalties for subsequent
violations, the authorized officer must
be mindful of § 49.525(d), which caps
penalties at an amount equaling twice
the cost of response, restoration, and
repair plus twice the cost of scientific or
fair market value of the resources
(whichever is greater).
Proposed § 49.525(d)(2) authorizes
civil penalties for damages to
paleontological resources and
paleontological sites. If other resources
or sites are damaged, the bureaus can
utilize their authorities under laws such
as the Endangered Species Act, the
Archaeological Resources Protection
Act, the National Park System Resources
Protection Act, and other statutes to
pursue separate legal or administrative
remedies.
Proposed § 49.525(e) would direct the
authorized officer to use proposed
subpart G of this proposed rule to
determine scientific or commercial
values and the cost of response,
restoration, and repair.
Proposed § 49.525(f) would state that
the final assessment may be equal to,
less than, or more than the proposed
civil penalty.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

How will the authorized officer issue
the final assessment of civil penalty
(§ 49.530)?
Proposed § 49.530 would state that
the authorized officer would serve the
final assessment of civil penalty by
certified mail, return receipt requested,
or another verifiable delivery method.
The proposed section would also
describe the required content of the
final assessment.
What are the options and timeframe to
respond to the final assessment of civil
penalty (§ 49.535)?
Proposed § 49.535 would provide that
a person who receives a final
assessment of civil penalty must
exercise one of two options within 30
days of the date the assessment is
received: (1) Accept the assessment by
filing a written notice with the
authorized officer or paying the assessed
penalty, or (2) file a request for hearing
before an administrative law judge with
the Departmental Case Hearings
Division (DCHD), Office of Hearings and
Appeals, DOI in accordance with
§ 49.535(b). The request for hearing will
be dismissed if it is not timely filed with
DCHD and may be dismissed if it does
not contain all information described in
proposed § 49.535(b).
If the person fails to file under either
option within 30 days, the assessment
will be deemed accepted. Acceptance of

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

88181

the assessment waives the right to
hearing.

stayed pending resolution of the judicial
review.

What procedures govern the DCHD
hearing process initiated by a request for
hearing on the final assessment
(§ 49.540)?

What happens if a civil penalty is not
paid on time (§ 49.570)?

If a person files a request for a hearing
with an administrative law judge,
proposed § 49.540 would explain the
procedures for that hearing.
What will be included in the
administrative law judge’s decision
(§ 49.545)?
Proposed § 49.545 would describe the
contents of the administrative law
judge’s decision and would state that
such decision would become effective
31 days from the date of the decision
absent a timely appeal of the decision.
How can the administrative law judge’s
decision be appealed (§ 49.550)?
Proposed § 49.550 would provide the
person who filed a request for the
hearing with an administrative law
judge, as well as the bureau, with the
opportunity to appeal that judge’s
decision by submitting a written dated
appeal of the decision to the DOI Office
of Hearing and Appeals via certified
mail, return receipt requested, or other
verifiable delivery method, and would
also describe the contents of the appeal
documents and the mailing addresses
where the appeal documents must be
sent.
What procedures govern an appeal of an
administrative law judge’s decision to
the OHA Director (§ 49.555)?
Proposed § 49.555 would state that
the appeal to OHA is governed by 43
CFR part 4, subparts A and G, and other
provisions of 43 CFR part 4, where
applicable.
When must the civil penalty be paid
(§ 49.560)?
Proposed § 49.560 would explain
decisions that are considered final
administrative decisions. A person has
30 days from the date of those final
decisions to fully pay the final
assessment of civil penalty or agree to
a payment schedule.
When may a person assessed a civil
penalty seek judicial review (§ 49.565)?
Proposed § 49.565 would explain that,
within 30 days of the OHA decision, a
person may file a petition for judicial
review in the United States District
Court for the District of Columbia or in
the district where the violation
occurred, and that the deadline for
payment of the civil penalty will be

PO 00000

Frm 00046

Fmt 4702

Sfmt 4702

Proposed § 49.570 would describe the
consequences of failing to fully pay the
final assessment of civil penalty by the
required deadlines.
How will collected civil penalties be
used (§ 49.575)?
Proposed § 49.575 would state that
civil penalties collected under this
subpart are available without further
appropriation to the bureau that
administers the federal land or
paleontological resources that were the
subject of the violation, and may be
used by the bureau for several purposes,
including: Protection, restoration, or
repair of the paleontological resources
and sites that were the subject of the
action, and protection, monitoring, and
study of the resources and sites; and
provision of educational materials to the
public about paleontological resources,
paleontological sites, or resource
protection; or payment of rewards.
Determining Values and the Costs of
Response, Restoration, and Repair
(Subpart G).
Proposed subpart G would provide
direction on determining values and the
cost of response, restoration, and repair
under this part. The authorized officer
may consult with subject matter experts,
such as resource specialists, area
specialists, and law enforcement
specialists, in determining these values.
What is scientific value (§ 49.600)?
Proposed § 49.600 would describe
scientific value. PRPA uses the term
‘‘paleontological value’’ in the section
on prohibited acts and criminal
penalties, and then switches to
‘‘scientific value’’ in the section on civil
penalties. The bureaus agree that the
two terms are synonymous and that for
purposes of consistency and clarity only
the term ‘‘scientific value’’ would be
used in the proposed rule.
What is commercial value (§ 49.605)?
Proposed § 49.605 would describe
commercial value. PRPA uses the term
‘‘commercial value’’ in the section on
prohibited acts and criminal penalties,
and then switches to ‘‘fair market value’’
in the section on civil penalties. The
bureaus agree that the two terms are
synonymous and for the purposes of
consistency and clarity only the term
‘‘commercial value’’ would be used in
the proposed rule.

E:\FR\FM\07DEP1.SGM

07DEP1

88182

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

What is the cost of response, restoration,
and repair (§ 49.610)?
Proposed § 49.610 would define the
cost of response, restoration, and repair.
In some cases, it may be appropriate for
the estimated cost of response,
restoration, and repair to be peer
reviewed. The values and costs should
be determined by paleontologists with
appropriate expertise.
Forfeiture and Rewards (Subpart H).
Will a violation lead to forfeiture of a
paleontological resource (§ 49.700)?
Proposed § 49.700 would explain
when a violation will lead to the
forfeiture of paleontological resources.
When there are civil or criminal
forfeitures, paleontological resources are
either returned to, or remain in, the
administrative authority of the Federal
Government. Where appropriate, the
bureau will initiate forfeiture under a
cooperative agreement with agencies
that have forfeiture regulations.
What rewards may bureaus pay to those
who assisted in enforcing this part
(§ 49.705)?
Proposed § 49.705 would describe the
rewards that may be paid for assistance
in enforcing the proposed rule.
Proposed § 49.705(a) would establish
that the bureau may pay a reward to the
person or persons who assist the bureau
by furnishing information that leads to
a finding of a civil or criminal violation.
Rewards will not be paid for the
discovery or reporting of a
paleontological resource (i.e., there is no
bounty for discovering a fossil).
Casual Collection of Common
Invertebrate or Plant Paleontological
Resources on Bureau of Land
Management and Bureau of
Reclamation Administered Lands
(Subpart I)

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Is casual collecting allowed on lands
administered by NPS or FWS (§ 49.800)?
Proposed § 49.800 would explain that
PRPA does not allow casual collecting
in areas managed by NPS or FWS. In
those areas, collecting any
paleontological resource must be
conducted in accordance with a permit
issued by NPS or FWS under subpart B
of this proposed rule.
Is casual collecting allowed on lands
administered by BLM or Reclamation
(§ 49.805)?
Under proposed § 49.805(a), casual
collecting would continue as currently
authorized on lands administered by
BLM, except that the PRPA terms
‘‘negligible disturbance’’ and
‘‘reasonable amount’’ defined under

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

§ 49.810 must be followed. Casual
collecting will not be allowed on BLM
lands that are or become closed to
casual collecting, BLM-administered
national monuments, BLM-administered
national conservation areas, outstanding
natural areas, forest reserves, or
cooperative management and protection
areas, except where the bureau has
specifically determined that casual
collection would not impair the intent
of the preservation designation. Because
BLM must ‘‘conserve, protect, and
restore [these] nationally significant
landscapes that have outstanding
cultural, ecological, and scientific
values for the benefit of current and
future generations,’’ the bureau must
ensure that these areas would not be
negatively affected by casual collecting
(establishment of the National
Landscape Conservation System, 16
U.S.C. 7202). Closures or restrictions
may be short term, long term, or
permanent. The BLM is requesting
public comment regarding the range of
designations listed in § 49.805(a)(2) as
prohibiting or restricting casual
collection, including whether and why
additional designations should be
included or currently proposed
designations excluded from the list.
Proposed § 49.805(b) would explain
that casual collecting of common
invertebrate or plant paleontological
resources will be allowed on land
administered by Reclamation only in
locations where Reclamation has
established a special use area for casual
collecting using processes defined in
Reclamation’s regulation at 43 CFR part
423, Public Conduct on Bureau of
Reclamation Facilities, Lands, and
Waterbodies. This proposed paragraph
would also state that casual collecting is
prohibited on Reclamation project land
that is administered by NPS or FWS.
Proposed § 49.805(c) would clearly
place full responsibility on persons
interested in casual collecting to
ascertain which bureau manages the
land where those persons would like to
collect paleontological resources,
whether the land is open to casual
collecting, and what may be collected in
an area, and to obtain information about
the managing bureau’s casual collecting
procedures.
What is casual collecting (§ 49.810)?
Proposed § 49.810(a) would restate
the PRPA definition of casual collecting.
Proposed § 49.810(a)(1) through (a)(5)
would provide specific definitions for
the terms used in the PRPA definition.
Under proposed § 49.810(a)(1), only
common invertebrate and common
plant paleontological resources may be
casually collected. Common

PO 00000

Frm 00047

Fmt 4702

Sfmt 4702

invertebrate and common plant
paleontological resources are
invertebrate or plant fossils that have
been established by the bureaus, based
on available scientific information and
current professional standards, as
having ordinary occurrence and widespread distribution.
Although these particular resources
may be common, they are still
paleontological resources as defined in
PRPA and the proposed rule. That is,
they have paleontological interest and
provide information about the history of
life on earth.
Not all invertebrate or plant
paleontological resources are common.
If the resources are not common, they
may only be collected under a permit.
It may not always be possible for a
collector to identify in the field whether
a fossil is common. When in doubt,
collectors should err on the side of
caution and collect only the resources
that they know are common. The
bureaus may hold a trained amateur,
avocational paleontologist, or
professional to a higher standard of
knowledge than the general public
about whether or not a fossil is
common.
If a knowledgeable collector makes an
unanticipated discovery of an
uncommon paleontological resource
while casually collecting, that collector
shall not collect that resource because
he or she is not authorized to do so.
Instead, the collector should alert the
relevant bureau. If the collector wishes
to pursue collection, he or she must
obtain a permit to collect the
uncommon resource. If the collector
does collect the uncommon resource
without a permit, that collector may be
subject to penalties.
Proposed § 49.810(a)(2) would
establish ‘‘reasonable amount’’ for
casual collecting as 25 pounds per day
per collector, not to exceed 100 pounds
per year per collector. This proposed
definition would also clarify that
pooling of multiple daily amounts by
one or more collectors to obtain pieces
in excess of 25 pounds is not allowed.
The bureaus determined that the 25
pounds per day per collector, and the
100 pounds per year per collector, are
reasonable amounts based on BLM’s
long experience with the collecting of
petrified wood and other fossils from
BLM lands before PRPA was enacted.
These amounts represent a balance
between PRPA’s mandate to allow
casual collecting and other laws that
require the bureaus to protect and
manage other natural and cultural
resources.
The proposed prevention of the
pooling of multiple daily amounts

E:\FR\FM\07DEP1.SGM

07DEP1

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
would add clarification and be
consistent with existing BLM
regulations at 43 CFR 3622.4 governing
the collecting of petrified wood.
The bureaus considered defining
‘‘reasonable amount’’ as equaling two
quarts instead of 25 pounds, but
decided that the use of a weight limit,
rather than a size limit, is more
consistent with existing collection
standards that are already understood
by the public and the bureaus.
Proposed § 49.810(a)(3) would clarify
that ‘‘negligible disturbance’’ for casual
collecting means little or no change to
the surface of the land, and minimal or
no effect to natural and cultural
resources. This proposed definition
would specify that in no circumstance
may the surface disturbance exceed 1
square yard (3 feet by 3 feet) per
individual collector; that in cases of
multiple collectors each square yard of
surface disturbance must be separated
by at least 10 feet; and that all areas of
surface disturbance must be backfilled
with the material that was removed in
order to render the disturbance
substantially unnoticeable to the casual
observer. The reason for using the ‘‘1
square yard’’ maximum is that this
would be similar to longstanding BLM
practice, and such consistency is
encouraged by PRPA. In the context of
compliance with the National
Environmental Policy Act (NEPA) in the
issuance of research permits for BLM,
for instance, a proposal to engage in
surface disturbance of anything larger
than 1 square meter is not usually
subject to categorical exclusion but is
subject to further analysis under NEPA.
The fossil-collecting community should,
therefore, already be familiar with this
type of threshold. For purposes of
managing ‘‘negligible disturbance,’’ 1
square yard is considered to be
approximately equal to 1 square meter.
The proposed definition would also
specify that collecting areas need to be
separated by at least 10 feet where there
is surface disturbance. The separation
would reduce cumulative effects to
other resources. Where there is no
surface disturbance, there is no need to
separate collecting areas.
Proposed § 49.810(a)(4) would
address the uses to which casually
collected resources can be put. Casually
collected resources may be used only for
noncommercial personal use, which
means a use other than purchase, sale,
financial gain, or research. The
restriction on any commercial use of
casually collected resources is not new.
For instance, rules of conduct
applicable to BLM-managed public
lands currently allow casual collecting
of paleontological resources only for

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

‘‘noncommercial purposes’’ (43 CFR
8365.1–5(b)).
Proposed § 49.810(a)(5) would define
the kinds of tools that may be used to
casually collect these resources. These
tools must be small, such as a geologic
hammer, trowel, or sieve; they cannot
use or be operated by a motor, engine,
or other mechanized power source; and
they must be light and small enough to
be hand-carried by one person. A tool
that exceeds this definition cannot be
used to casually collect these resources.
Proposed § 49.810(b) would enable
the authorized officer to establish
limitations on casual collecting, in
addition to the limitations already
contained in the proposed rule.
Examples of additional limitations
include reducing the maximum weight
for ‘‘reasonable amount,’’ decreasing the
threshold for negligible disturbance,
limiting depth of allowable disturbance,
limiting specific tools that may be used,
defining what is common in a specific
area, establishing time or duration limits
for collecting, establishing limits to
avoid cumulative effects, and
establishing parameters for safety.
Proposed § 49.810(c) would clarify
that casual collecting is not allowed
when any of the parameters that restrict
casual collecting (reasonable amount,
common invertebrate and plant
paleontological resources, personal
noncommercial use, negligible
disturbance and non-powered hand
tools) is exceeded or does not apply.
Casual collecting is a limited exception
to the overarching permit requirement
of PRPA, and is allowed under the
presumption that the ‘‘commonness’’ of
these resources, in combination with
limitations on amount, surface
disturbance, tools, and eventual use of
the collected resources, contributes to
the underlying objective of protecting
paleontological resources on federal
lands. Proposed § 49.810(c) also clarifies
that casual collecting in excess of the
specified limitations is prohibited and
subject to civil and criminal penalties.
IV. Proposed Conforming Amendment
to 43 CFR part 8360—Visitor Services;
Sections 8360.0–3, Authority, and
8365.1–5, Property and Resources
PRPA requires the BLM to allow the
casual collecting of common
invertebrate and plant paleontological
resources, which is consistent with
existing BLM policy. However, this rule
would amend the text at existing 43 CFR
8365.1–5 to conform to the language
used by PRPA.
The authority citations for 43 CFR
part 8360 and the list of authorities at
§ 8360.0–3 would each be amended to
add PRPA (16 U.S.C. 470aaa et seq.).

PO 00000

Frm 00048

Fmt 4702

Sfmt 4702

88183

PRPA introduces the term ‘‘casual
collecting’’ to define the noncommercial
collection of invertebrate and plant
fossils, which was previously
authorized by the Federal Land Policy
and Management Act of 1976 (43 U.S.C.
1701 et seq.). PRPA and the proposed
regulations at part 49 use the term
‘‘paleontological resources’’ instead of
the term ‘‘fossils’’ to describe resources
that are managed under PRPA.
The current § 8365.1–5 would be
amended to conform to the terms
introduced by PRPA. The specific
changes are:
• § 8365.1–5(b)(2) would be amended
to remove the phrase ‘‘common
invertebrate and common plant fossils;’’
• § 8365.1–5(b)(4) would be amended
to remove ‘‘and’’ in order to maintain
grammatical structure;
• § 8365.1–5(b)(5) would be amended
to add ‘‘and’’ in order to maintain
grammatical structure; and
• A proposed new § 8365.1–5(b)(6)
would be added to include ‘‘common
invertebrate and plant paleontological
resources’’ on the list of things that may
be collected from BLM public lands in
reasonable amounts for noncommercial
purposes. The paragraph also provides a
reference to proposed part 49, which
would authorize and provide rules for
casual collecting.
V. Proposed Conforming Amendment to
50 CFR Part 27—Prohibited Acts,
§ 27.63, Search for and Removal of
Other Valued Objects
PRPA states that a paleontological
resource may not be collected from
federal land without a permit issued
under that authority. The proposed
amendment at § 27.63 would add a
paragraph that states that a permit is
required in order to collect
paleontological resources and would
provide a reference to proposed part 49,
which would authorize and provide
rules for issuing permits under PPRA.
Proposed new § 27.63(c) would state
that permits are required for
paleontological studies on national
wildlife refuges in accordance with the
provisions at proposed 43 CFR part 49.
VI. Compliance With Other Laws,
Executive Orders, and Department
Policy
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget will review all
significant rules. OIRA has determined
that this proposed rule is not significant.
Executive Order 13563 reaffirms the
principles of Executive Order 12866

E:\FR\FM\07DEP1.SGM

07DEP1

88184

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

while calling for improvements in the
nation’s regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. Executive Order 13563
emphasizes further that regulations
must be based on the best available
science and that the rulemaking process
must allow for public participation and
an open exchange of ideas. We have
developed this rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (RFA)
This proposed rule will not have a
significant economic effect on a
substantial number of small entities
under the RFA (5 U.S.C. 601 et seq.).
This certification is based on the costbenefit and regulatory flexibility
analyses found in the report titled
‘‘Proposed Paleontological Resources
Preservation Regulations, 43 CFR part
49: Economic Analysis In Support Of
E.O. 12866 and Regulatory Flexibility
Act Compliance,’’ which can be viewed
at www.blm.gov/paleontology by
clicking on the link entitled ‘‘Proposed
Paleontological Resources Preservation
Regulations, 43 CFR part 49: Economic
Analysis In Support Of E.O. 12866 and
Regulatory Flexibility Act Compliance.’’

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Small Business Regulatory Enforcement
Fairness Act
This proposed rule is not a major rule
under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement
Fairness Act. This rule:
a. Does not have an annual effect on
the economy of $100 million or more.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, federal, state, or
local government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
Unfunded Mandates Reform Act
(UMRA)
This proposed rule does not impose
an unfunded mandate on state, local, or
tribal governments or the private sector
of more than $100 million per year. This
rule will not have a significant or
unique effect on state, local, or tribal
governments or the private sector. The

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

rule addresses the management of
paleontological resources from lands
managed by BLM, Reclamation, FWS,
and NPS, and imposes no requirements
on other agencies or governments. A
statement containing information
required by the UMRA (2 U.S.C. 1531 et
seq.) is not required.
Takings (Executive Order 12630)
This proposed rule does not affect a
taking of private property or otherwise
have taking implications under
Executive Order 12630. This proposed
rule is not a government action capable
of interfering with constitutionally
protected property rights. It would
implement the new statutory authority
for managing, preserving, and protecting
paleontological resources on federal
lands and is consistent with prior
policies, procedures, and practices for
the collection and curation of
paleontological resources on federal
land. Private property is not affected. A
takings implication assessment is not
required.
Federalism (Executive Order 13132)
Under the criteria in section 1 of
Executive Order 13132, this proposed
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement. This rule addresses the
management of paleontological
resources on and from lands managed
by the BLM, Reclamation, FWS, and
NPS, and imposes no requirements on
other agencies or governments. It does
not have a substantial direct effect on
the states, on the relationship between
the Federal Government and the states,
or on the distribution of power and
responsibilities among the levels of
government. A federalism summary
impact statement is not required.
Civil Justice Reform (Executive Order
12988)
This proposed rule complies with the
requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(b) Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
Consultation and Coordination With
Indian Tribal Governments (Executive
Order 13175 and Departmental Policy)
DOI strives to strengthen its
government-to-government relationship
with Indian tribes through a

PO 00000

Frm 00049

Fmt 4702

Sfmt 4702

commitment to consultation with Indian
tribes and recognition of their right to
self-governance and tribal sovereignty.
We have evaluated this proposed rule
under DOI’s consultation policy and
under the criteria in Executive Order
13175 and have determined that it has
no substantial direct effects on federally
recognized Indian tribes and that
consultation is not required. This
proposed rule applies to lands managed
by BLM, Reclamation, FWS, and NPS. It
does not apply to and has no direct
effect on tribal trust lands or lands
subject to a restriction on alienation
imposed by the United States.
DOI is sending a letter to notify the
566 federally recognized Indian tribes
that the proposed rulemaking is being
published in the Federal Register. DOI
invites responses to the notification
letter.
Paperwork Reduction Act of 1995 (PRA)
This proposed rule contains a
collection of information that has been
submitted to OMB for approval under
the PRA (44 U.S.C. 3501 et seq.). DOI
and its bureaus may not conduct or
sponsor, and no one is required to
respond to, a collection of information
unless it displays a currently valid OMB
control number.
OMB has reviewed and approved the
information collection requirements
associated with the NPS’ application
and reports for paleontological permits
(OMB Control Number 1024–0236).
DOI proposes to collect the following
information associated with
paleontological permits for work on
lands administered by the BLM,
Reclamation, and FWS:
Permit application (§ 49.65). Permit
applicants proposing to work in areas
administered by BLM, Reclamation, or
FWS must provide the information
requested by DI Form 9002
(Paleontological Resource Use Permit
Application). Such information
includes:
(1) Applicant’s name, affiliation, and
contact information.
(2) Current resume for the applicant
and all other persons who will oversee
fieldwork and other work.
(3) Description, estimated start and
end dates of proposed work, and maps
and other location information.
(4) Purpose and methodology of
proposed work, including a detailed
scope of work or research plan for the
proposed activity, logistical
information, methods that will be
employed to explore for or remove the
paleontological resources, proposed
content and nature of any collection to
be made under the permit.
(5) Bonding information.

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
(6) Information about the proposed
repository.
(7) Information on the applicant’s past
performance on previous permits.
Change of personnel (§ 49.75(a)(2)).
Permittee must report changes in the
persons who are conducting activities
under the permit, and submit the
credentials of any new persons to the
authorized officer for approval.
Locality information (§ 49.75(a)(1) &
(7)). Permittee will record locality
information on DI Form 9004
(Paleontological Locality Form), or in
another format approved by the bureau
in the permit that captures the same
information.
Resource damage or theft
(§ 49.75(a)(8)). Permittee must report
suspected resource damage or theft of
paleontological or other resources to the
authorized officer as soon as possible,
but not to exceed 48 hours after learning
of such damage or theft.
Repository receipt (§ 49.75(a)(9) &
(10)). Permittee must deposit the
collection in the approved repository
and provide the bureau with DI Form
9008 (Repository Receipt for Collections
(Paleontology)), which includes a
certification by the permittee that the
collection was transferred to the
repository and a certification by the
approved repository’s authorized
official that the collection was received.
List and description of
paleontological resources
(§ 49.75(a)(11)). If the permittee has not
transferred the collection to the

approved repository by the due date of
the annual report or other schedule
approved for the permit, the permittee
must provide the authorized officer a
complete list and description of all
paleontological resources collected and
the current location of the
paleontological resources.
Reports (§ 49.75(a)(15)). Permittees
conducting activities on lands
administered by BLM, Reclamation, or
FWS must submit reports to the bureaus
using DI Form 9005 (Paleontological
Permit Report Cover Sheet), or DI Form
9006 (Paleontology Consulting Report
Summary Sheet).
Amendments to permits (§ 49.80(a)).
Permittees may request a modification
to a permit. Modification requests will
include permittee name, permit number,
and the reason(s) for the modification
request.
Objecting to a Notice of Violation
(§ 49.515(a) & (b)). When a person
receives a notice of violation, the person
has 30 days from the date the notice was
received to object by submitting to the
authorized officer documentation to
support the position that the person did
not commit a violation or that the
proposed penalty should be reduced or
eliminated.
Responding to a civil penalty
(§ 49.535(a)). A person may request a
hearing on the authorized officer’s final
assessment of a civil penalty by filing a
request for hearing via certified mail
(return receipt requested or other
verifiable delivery method) to the

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Departmental Cases Hearings Division,
Office of Hearings and Appeals,
Department of the Interior, 351 S. West
Temple, Room 6.300, Salt Lake City,
Utah 84101. The request for hearing
must include the following information:
(1) The reasons for challenging the
final assessment;
(2) The relief sought and the basis for
the relief;
(3) A copy of the original notice of
civil violation and proposed civil
penalty assessment;
(4) A copy of any objection and
supporting documentation filed under
§ 49.515(a);
(5) A copy of the final assessment of
civil penalty; and
(6) A certificate of service
acknowledging service of the request for
hearing with the accompanying
documentation on the Office of the
Solicitor.
OMB Control No.: 1093–NEW.
Title: Application and Reports for
Paleontological Permits, 43 CFR part 49.
Form Number(s): DI Forms 9002,
9004, 9005, 9006, and 9008.
Description of Respondents:
Individuals; organizations; businesses
(museums and universities); state, tribal,
or local governments that collect
paleontological resources or disturb
paleontological sites on DOI lands.
Respondent’s Obligation: Required to
obtain or retain a benefit.
Frequency of Collection: On occasion.
Total annual
responses

Requirement

88185

Completion
time per
response
(hours)

Total annual
burden hours

Permit Application—DI Form 9002—§ 49.65; DI Form 9003—§ 49.75(a); DI Form 9007—
§ 49.75(d) .................................................................................................................................
Report Change of Personnel—§ 49.75(a)(2) ...............................................................................
Locality Information—DI Form 9004—§ 49.75(a)(1) & (7) ..........................................................
Report Resource Damage or Theft –§ 49.75(a)(8) .....................................................................
Repository Receipt—DI Form 9008–§ 49.75(a)(9)&(10) .............................................................
List and Description of Paleontological Resources—§ 49.75(a)(11) ...........................................
Reports—DI Form 9005, Permit Report Cover Sheet—§ 49.75(a)(15) ......................................
Reports—DI Form 9006, Consulting Summary Report—§ 49.75(a)(15) .....................................
Request Amendment to Permit—§ 49.80(a) ................................................................................
Objecting to a Notice of Violation—§ 49.515(a)&(b) ...................................................................
Responding to a Civil Penalty—§ 49.535(a) ................................................................................

440
100
300
50
300
100
374
66
200
10
5

4
1
1
1
1
1
5
5
1
10
10

1,760
100
300
50
300
100
1,870
330
200
100
50

Totals ....................................................................................................................................

1,945

........................

5,160

Estimated Nonhour Cost Burden:
None.
Send comments specific to the
information collection aspects of this
proposed rule to the Desk Officer for the
Department of the Interior with a copy
to the Office of the Secretary
Information Collection Clearance
Officer, Department of the Interior. See

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

the DATES and ADDRESSES sections for
specific instructions.
National Environmental Policy Act
This proposed rule is anticipated to
be categorically excluded from National
Environmental Policy Act analysis
under DOI categorical exclusion, 43 CFR
46.210(i), which covers ‘‘Policies,
directives, regulations, and guidelines:

PO 00000

Frm 00050

Fmt 4702

Sfmt 4702

that are of an administrative, financial,
legal, technical, or procedural nature; or
whose environmental effects are too
broad, speculative, or conjectural to
lend themselves to meaningful analysis
and will later be subject to the NEPA
process, either collectively, or case-bycase.’’
The categorical exclusion is
appropriate and applicable for the

E:\FR\FM\07DEP1.SGM

07DEP1

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

88186

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

following reasons. Several of the
provisions of this proposed rule are
specifically administrative, financial,
legal or procedural in nature, and
therefore are subject to the first part of
the categorical exclusion. For instance,
the provisions for permit modification,
suspension, revocation, or cancellation
are all administrative or procedural in
character, as are the rule’s provisions
establishing procedures to challenge any
of these decisions. Similarly, the
proposed rule sets forth specifics of the
administration of civil and criminal
penalties associated with violation of
the provisions of the rule and of PRPA.
Both the establishment of the permit
system, and future decisions to close
lands to casual collecting (and,
conversely, to open lands to casual
collecting where that use is not already
authorized) are subject to the second
part of the categorical exclusion.
Issuance of a permit (whether
programmatic or individual in scope)
for the collection of paleontological
resources itself requires agency
compliance with NEPA. Moreover, a
permit must contain permit conditions,
supported by appropriate NEPA
analysis, that ensure the underlying
project or action will continue to meet
regulatory requirements throughout the
entire duration of the permit. Likewise,
any decision to close or open lands to
casual collecting also requires agency
compliance with NEPA and may
contain conditions, supported by
appropriate NEPA analysis, that ensure
the appropriate management of these
resources. Because the environmental
effects of this proposed rule are too
speculative to lend themselves to
meaningful analysis, and the
environmental consequences of any of
these decisions will be analyzed in
detail at the time the permit application
or proposed opening or closing to casual
collecting is evaluated and before a
decision is made, the rule is subject to
the second part of DOI categorical
exclusion, 43 CFR 46.210(i).
Pursuant to 43 CFR 46.205(c), DOI has
reviewed its reliance upon this
categorical exclusion against the list of
extraordinary circumstances, at 43 CFR
46.215, and has found that none applies
to this rule. Therefore, neither an
environmental assessment (EA) nor an
environmental impact statement (EIS) is
required for this rulemaking.
Even though neither an EA nor an EIS
must be prepared for this rule, the BLM
has elected to prepare an EA to inform
decision makers regarding the possible
effects of two specific provisions as
applied to the public lands BLM
manages, as allowed under DOI’s
regulations implementing NEPA, 43

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

CFR 46.300(b)(1). BLM-administered
lands are open to casual collection of
paleontological resources unless
specifically closed by a site-specific
decision. As such, casual collection has
been and will continue to occur on
certain public lands.
PRPA provides specific authority and
limits under which this activity can take
place. In particular, PRPA allows for
‘‘casual collecting,’’ which is defined as
‘‘the collecting of a reasonable amount
of common invertebrates and plant
paleontological resources for noncommercial personal use, either by
surface collection or the use of nonpowered hand tools resulting in only
negligible disturbance to the Earth’s
surface and other resources’’ (Pub. L.
111–11, section 6301(1), 123 Stat. 1172),
and specifies that the Secretary of the
Interior is to determine how these terms
are to be defined. The rule’s proposed
definitions for ‘‘negligible disturbance’’
and ‘‘reasonable amount’’ describe the
conditions limiting any casual
collection activities on certain public
lands managed by the BLM. The BLM is
preparing an EA for these proposed
definitions, which will immediately
apply to casual collection on BLM
public lands when this rule is finalized.
The EA is under development and may
be found at www.blm.gov/paleontology.
The BLM welcomes input from the
public on the EA, which may be revised
in response to public input as well as
further agency review. It is expected
that analysis will be qualitative and
descriptive in character, and consist
largely of presenting the possible
negative consequences that might result
from not defining these terms carefully,
as well as describing the considerations
that informed the proposed definitions
and the alternatives considered.
Effects on the Energy Supply (Executive
Order 13211)
This proposed rule is not a significant
energy action under the definition in
Executive Order 13211. DOI has
determined that this proposed rule will
not have substantial direct effects on
energy supply, distribution, or use,
including a shortfall in supply or price
increase. The rule has no bearing on
energy development and will have no
effect on the volume or consumption of
energy supplies. A Statement of Energy
Effects is not required.
Clarity of This Regulation
DOI is required by Executive Orders
12866 (section 1(b)(12)), 12988 (section
3(b)(1)(B)), and 13563 (section 1(a)), and
by the Presidential Memorandum of
June 1, 1998, to write all rules in plain

PO 00000

Frm 00051

Fmt 4702

Sfmt 4702

language. This means that each rule we
publish must:
(a) Be logically organized;
(b) Use the active voice to address
readers directly;
(c) Use common, everyday words and
clear language rather than jargon;
(d) Be divided into short sections and
sentences; and
(e) Use lists and tables wherever
possible.
If you believe the DOI has not met
these requirements, send comments by
one of the methods listed in the
ADDRESSES section. To better help us to
revise the rule, please make comments
as specific as possible. For example, tell
us the numbers of the sections or
paragraphs that you find unclear, which
sections or sentences are too long, the
sections where you believe lists or
tables would be useful, etc.
Drafting Information
This proposed rule reflects the efforts
of staff in BLM, Reclamation, FWS, and
NPS.
Public Participation
DOI, whenever practicable, affords the
public an opportunity to participate in
the rulemaking process. Accordingly,
interested persons may submit written
comments regarding this proposed rule
by one of the methods listed in the
ADDRESSES section. All comments must
be received by midnight of the close of
the comment period. We will not accept
bulk comments in any format (hard
copy or electronic) submitted on behalf
of others.
Public Availability of Comments
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, please know that we may
make your entire comment—including
your personal identifying information—
publicly available at any time. While
you can ask us in your comment to
withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
List of Subjects
43 CFR Part 49
Casual collecting, Civil penalties,
Collecting, Commercial value,
Confidentiality, Criminal penalties,
Curation, Museums, Natural resources,
Paleontological resources, Paleontology,
Permits, Prohibited acts, Prohibitions,
Public awareness, Public education,
Recreation, Reporting and record
keeping requirements, Repository,
Research, Scientific principles,
Scientific value.

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
43 CFR Part 8360
Penalties, Public lands, Recreation
activities, Recreation and recreation
areas.
50 CFR Part 27
Wildlife refuges.
For reasons stated in the preamble,
the Department of the Interior proposes
to amend title 43 of the CFR by adding
part 49 and amending part 8360 and to
amend part 27 of title 50, as set forth
below:

Subpart F—Civil Penalties

1. Add part 49 to title 43 to read as
follows:

■

PART 49—PALEONTOLOGICAL
RESOURCES PRESERVATION

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

Subpart A—Managing, Protecting, and
Preserving Paleontological Resources
Sec.
49.1 What does this part do?
49.5 What terms are used in this part?
49.10 Does this part affect existing
authorities?
49.15 When does this part not apply?
49.20 Does this part create new rights or
entitlements?
49.25 What information concerning the
nature and specific location of
paleontological resources is confidential?
49.30 How will the bureaus conduct
inventory, monitoring, and preservation
activities?
49.35 How will the bureaus foster public
education and awareness?
49.40 When may the bureaus restrict access
to an area?
Subpart B—Paleontological Resources
Permitting—Requirements, Modifications,
and Appeals
49.50 When is a permit required on federal
land?
49.55 Who can receive a permit?
49.60 What criteria must a permit
applicant meet?
49.65 Where must a permit application be
filed and what information must it
include?
49.70 How will a bureau make a decision
about a permit application?
49.75 What terms and conditions will a
permit contain?
49.80 When and how may a permit be
modified, suspended, revoked, or
cancelled?
49.85 Can a permit-related decision be
appealed?
49.90 What is the process for appealing a
permit-related decision?
49.95 Has OMB approved the information
collection provisions of this part?
Subpart C—Management of Paleontological
Resource Collections
49.200 Where are collections deposited?

Jkt 241001

Subpart A—Managing, Protecting, and
Preserving Paleontological Resources

What acts are prohibited?

49.400 What criminal penalties apply to
violations of this part?

Subtitle A—Office of the Secretary of
the Interior

17:23 Dec 06, 2016

49.300

49.500 When can the authorized officer
assess a civil penalty?
49.505 How does the authorized officer
serve a notice of violation?
49.510 What is included in the notice of
violation?
49.515 How is an objection to a notice of
violation and proposed civil penalty
made and resolved?
49.520 When will the authorized officer
issue a final assessment of civil penalty?
49.525 How will the authorized officer
calculate the amount of a proposed and
final assessment of civil penalty?
49.530 How will the authorized officer
issue the final assessment of civil
penalty?
49.535 What are the options and timeframe
to respond to the final assessment of
civil penalty?
49.540 What procedures govern the DCHD
hearing process initiated by a request for
hearing on the final assessment?
49.545 What will be included in the
administrative law judge’s decision?
49.550 How can the administrative law
judge’s decision be appealed?
49.555 What procedures govern an appeal
of an administrative law judge’s decision
to the OHA Director?
49.560 When must the civil penalty be
paid?
49.565 When may a person assessed a civil
penalty seek judicial review?
49.570 What happens if a civil penalty is
not paid on time?
49.575 How will collected civil penalties
be used?
Subpart G—Determining Values and the
Costs of Response, Restoration, and Repair
49.600 What is scientific value?
49.605 What is commercial value?
49.610 What is the cost of response,
restoration, and repair?
Subpart H—Forfeiture and Rewards
49.700 Will a violation lead to forfeiture of
a paleontological resource?
49.705 What rewards may bureaus pay to
those who assisted in enforcing this part?

PO 00000

Frm 00052

Fmt 4702

Sfmt 4702

Subpart I—Casual Collection of Common
Invertebrate or Plant Paleontological
Resources on Bureau of Land Management
and Bureau of Reclamation Administered
Lands
49.800 Is casual collecting allowed on
lands administered by NPS or FWS?
49.805 Is casual collecting allowed on
lands administered by BLM or
Reclamation?
49.810 What is casual collecting?
Authority: 16 U.S.C. 470aaa–aaa–11.

Subpart D—Prohibited Acts

Subpart E—Criminal Penalties

Title 43: Public Lands: Interior

VerDate Sep<11>2014

49.205 How will bureaus approve a
repository for a collection made under
this part?
49.210 What is the process for depositing
the collection at the approved
repository?
49.215 What terms and conditions must
the agreement between the bureau and
approved repository contain?
49.220 What are the standards for
managing the collections?

88187

§ 49.1

What does this part do?

This part:
(a) Directs the Bureau of Land
Management (BLM), Bureau of
Reclamation (Reclamation), U.S. Fish
and Wildlife Service (FWS), and
National Park Service (NPS)
(collectively referred to as ‘‘the
bureaus’’) to manage, protect, and
preserve paleontological resources on
federal land using scientific principles
and expertise;
(b) Coordinates paleontological
resources management among the
bureaus;
(c) Promotes public awareness;
provides for collection under permit;
clarifies that paleontological resources
cannot be collected from federal land for
sale or purchase; establishes civil and
criminal penalties; sets curation
standards; and
(d) Authorizes casual collecting of
common invertebrate and plant fossils
from certain BLM-administered land
and certain Reclamation-administered
land.
§ 49.5

What terms are used in this part?

The terms used in this part have the
following definitions.
Act means title VI, subtitle D of the
Omnibus Public Land Management Act
on Paleontological Resources
Preservation (16 U.S.C. 470aaa–470aaa–
11).
Ad Hoc Board means an Ad Hoc
Board of Appeals appointed by the
Director, Office of Hearings and
Appeals, Department of the Interior.
Approved repository means a federal
or non-federal facility that provides
curatorial services and that is approved
by the authorized officer to receive
collections made under this part.
Associated records means original
records or copies thereof, regardless of
format, that include but are not limited
to:
(1) Primary records relating to
identification, evaluation,
documentation, study, preservation,
context, or recovery of a paleontological
resource;

E:\FR\FM\07DEP1.SGM

07DEP1

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

88188

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

(2) Public records including, but not
limited to, land status records, bureau
reports, publications, court documents,
and agreements; and
(3) Administrative records and reports
generated during the permitting process
that pertain to survey, excavation, or
study of the paleontological resource.
Authorized officer means the bureau
director or employee to whom the
Secretary of the Interior has delegated
authority to take action under the Act.
Delegation will follow applicable
Department and bureau procedures.
Bureau means Bureau of Land
Management (BLM), Bureau of
Reclamation (Reclamation), U.S. Fish
and Wildlife Service (FWS), or National
Park Service (NPS).
Collection means paleontological
resources removed from geological
context or taken from federal land, and
associated records or replicas.
Consumptive use means the alteration
or destruction of a paleontological
specimen or portion of a specimen for
scientific research.
Cost of response, restoration, and
repair means the costs to respond to a
violation of the provisions of this part
or a permit issued under this part and
the costs of restoration and repair of the
paleontological resources or
paleontological sites damaged as a result
of the violation. Those costs are
described in greater detail in § 49.610.
Curatorial services means managing
and preserving a museum collection
over the long term according to
Department and bureau museum and
archival standards and practices.
Day means a calendar day.
DCHD means the Departmental Cases
Hearings Division, Office of Hearings
and Appeals, Department of the Interior.
Department or DOI means the
Department of the Interior.
Federal land means land controlled or
administered by the Secretary of the
Interior, except for Indian land.
Fossilized means preserved by natural
processes, such as burial in
accumulated sediments, preservation in
ice or amber, or replacement by
minerals, which may or may not alter
the original organic content.
Indian land means land of federallyrecognized Indian tribes or Indian
individuals which is either held in trust
by the United States or subject to a
restriction against alienation imposed
by the United States.
Nature means physical features,
identifications, or attributes of the
paleontological resource.
OHA means the Office of Hearings
and Appeals, DOI.
OHA Director means the Director,
Office of Hearings and Appeals, DOI.

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

Paleontological resource means any
fossilized remains, traces, or imprints of
organisms preserved in or on the Earth’s
crust, except for:
(1) Those that are found in an
archaeological context and are an
archaeological resource as defined in
section 3(1) of the Archaeological
Resources Protection Act of 1979 (16
U.S.C. 470bb(1)); or
(2) ‘‘Cultural items,’’ as defined in
section 2 of the Native American Graves
Protection and Repatriation Act (25
U.S.C. 3001 et seq.); or
(3) Resources determined in writing
by the authorized officer to lack
paleontological interest or not provide
information about history of life on
earth, based on scientific and other
management considerations.
Paleontological site means a locality,
location, or area where a paleontological
resource is found; the site can be
relatively small or large.
Specific location means any
description or depiction of a place in
such detail that it would allow a person
to find a paleontological resource or the
site from which it was collected.
State means one of the 50 states, the
District of Columbia, the
Commonwealth of Puerto Rico, or any
other territory or possession of the
United States.
Working collections means
paleontological resource collections that
are not intended for long-term
preservation and care as museum
collections.
§ 49.10 Does this part affect existing
authorities?

No. This part preserves the authority
of the Secretary of the Interior and the
bureaus under this and other laws and
regulations to manage, protect, and
preserve paleontological resources on
federal land.
§ 49.15

When does this part not apply?

(a) The regulations in this part do not
invalidate, modify, or impose additional
restrictions or permitting requirements
on mineral, reclamation, or related
multiple use activities for which
authorization exists or permits are
issued under the general mining,
mineral leasing, geothermal leasing, or
mineral materials disposal laws.
(b) The regulations in this part do not
apply to Indian land.
(c) The regulations in this part do not
apply to any land other than federal
land as defined in this part, or resources
other than paleontological resources as
defined in this part.

PO 00000

Frm 00053

Fmt 4702

Sfmt 4702

§ 49.20 Does this part create new rights or
entitlements?

(a) This part does not create any right,
privilege, benefit, or entitlement for any
person who is not an officer or
employee of the United States acting in
that capacity.
(b) Only an officer or employee of the
United States acting in that capacity has
standing to file a civil action in a court
of the United States to enforce this part.
§ 49.25 What information concerning the
nature and specific location of
paleontological resources is confidential?

(a) In keeping with section 6309 of the
Act, information concerning the nature
and specific location of a
paleontological resource is exempt from
disclosure under the Freedom of
Information Act and any other law
unless the authorized officer determines
that disclosure would:
(1) Further the purposes of the Act;
(2) Not create risk of harm to or theft
or destruction of the resource or site
containing the resource; and
(3) Be in accordance with other
applicable laws.
(b) If the authorized officer
determines that a proposed disclosure
would meet the requirements of
paragraphs (a)(1)–(a)(3) of this section,
then the authorized officer will, prior to
disclosing the information, enter into a
written agreement with the party
seeking the disclosure. Such agreement
will provide stipulations focused on
ensuring that the recipient of the
disclosure does not publicly distribute
or otherwise release, disclose, or share
the information.
(c) No disclosure complying with
paragraph (b) of this section will be
considered an official public disclosure
for purposes of the Freedom of
Information Act.
§ 49.30 How will the bureaus conduct
inventory, monitoring, and preservation
activities?

(a) The bureaus will develop plans
and procedures for the inventory and
monitoring of paleontological resources
on and from federal land in accordance
with applicable laws and regulations.
(b) The bureaus will manage, protect,
and preserve paleontological resources
on and from federal land using scientific
principles and expertise.
(c) Activities under paragraphs (a) and
(b) of this section will be coordinated
with other agencies, non-federal
partners, the scientific community, and
the general public where appropriate
and practicable.

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
§ 49.35 How will the bureaus foster public
education and awareness?

The bureaus will establish a program
to increase public awareness about the
significance of paleontological resources
on or from federal land. This effort will
be coordinated with other agencies,
non-federal partners, the scientific
community, and the general public
where appropriate and practicable.
§ 49.40 When may the bureaus restrict
access to an area?

(a) The authorized officer may restrict
access to an area or close areas to
collection of paleontological resources
to protect paleontological or other
resources or to provide for public safety.
(b) The regulations in this part do not
preclude the use of other authorities
that provide for area restrictions or
closures on federal land.
Subpart B—PALEONTOLOGICAL
RESOURCES PERMITTING—
REQUIREMENTS, MODIFICATIONS,
AND APPEALS
§ 49.50 When is a permit required on
federal land?

(a) A permit is required for any person
to collect paleontological resources or
disturb paleontological sites, except for
casual collecting on certain lands
managed by the BLM or Reclamation,
which is defined and addressed in
subpart I of this part.
(b) A permit may be required by a
bureau for activities that do not involve
collection or disturbance.
(c) A permit is required for Federal
Government personnel to collect
paleontological resources or disturb
paleontological sites unless the bureau
authorizes the action by programmatic
or other means.
§ 49.55

Who can receive a permit?

Applicants who demonstrate that they
meet the qualification requirements
described in § 49.60, who provide a
complete application as described in
§ 49.65, and whose proposed activity
meets the issuance criteria described in
§ 49.70 may receive a permit.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

§ 49.60 What criteria must a permit
applicant meet?

(a) Permit applicant qualification
requirements include:
(1) A graduate degree from an
accredited institution in paleontology or
related field of study with a major
emphasis in paleontology or equivalent
academic training to undertake the
proposed activity;
(2) Experience in collecting,
analyzing, summarizing, and reporting
paleontological data, and preparing
collections for long-term care;

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

(3) Experience in planning,
equipping, staffing, organizing, and
supervising field crews on projects
similar to the type, nature, and scope of
work proposed in the application; and
(4) Other expertise, knowledge, or
experience required by the bureau in
policies or procedures.
(b) Past performance by the applicant
will also be considered. Past
performance includes compliance with
previous permits, relevant civil or
criminal violations, or current
indictments or charges.
§ 49.65 Where must a permit application
be filed and what information must it
include?

(a) A permit applicant must submit an
application to the bureau that
administers the federal land where the
proposed activity would be conducted.
It is the permit applicant’s
responsibility to determine which
bureau has jurisdiction, use that
bureau’s permit application form and
process, and respond to that bureau’s
requests for information in a timely
manner.
(b) A permit applicant proposing to
work in areas administered by BLM,
Reclamation, or FWS must provide the
information requested by DI Form 9002
(Paleontological Resource Use Permit
Application). A permit applicant
proposing to work in areas administered
by NPS must provide the information
requested by the NPS’s Research Permit
and Reporting System. Such
information, for purpose of both DI
Form 9002 and the NPS System,
includes:
(1) The applicant’s name, affiliation,
and contact information.
(2) A current resume for the applicant
and all other persons who oversee work
under the permit, and any additional
information demonstrating that the
applicant possesses the qualifications
required by § 49.60.
(3) A description, estimated start and
end dates, and maps and other location
information for the proposed work.
(4) Purpose and methodology of
proposed work, including a detailed
scope of work or research plan for the
proposed activity, logistical
information, methods that will be
employed to explore for or remove the
paleontological resources, proposed
content and nature of any collection to
be made under the permit, collection
management processes, timetable for
transfer to the proposed repository, and
any additional information that will
help the authorized officer identify the
extent, nature, and impacts of the
proposal.

PO 00000

Frm 00054

Fmt 4702

Sfmt 4702

88189

(5) Bonding information, if required
by the bureau.
(6) Information about the proposed
repository for any collection that would
be made under the permit, including:
(i) Name, location, and contact
information for the proposed repository;
(ii) Written verification from the
proposed repository confirming that it
will agree to receive the collection; and
(iii) Names of organizations
responsible for costs of curatorial
services.
(7) Information on the applicant’s past
performance on previous permits.
(c) Because of the span of activities
covered by paleontological permits and
the different management needs and
resources of each bureau, applicants
may not be required to provide all of the
information listed in paragraph (b) of
this section. Each bureau will have the
discretion to ask for less information.
§ 49.70 How will a bureau make a decision
about a permit application?

(a) The authorized officer will assess
whether the permit application
complies with other applicable
authorities.
(b) The authorized officer may issue a
permit upon determining that:
(1) The applicant possesses the
qualifications required by § 49.60;
(2) The permitted activity and any
collection that would be made under the
proposed permit would further
paleontological knowledge, public
education, or management of
paleontological resources;
(3) The permitted activity would be
consistent with the purpose and
management objectives defined for the
federal land; and
(4) The permitted activity would be
conducted in a manner that would
avoid or reduce adverse effects to
significant natural or cultural resources.
(c) The authorized officer will work
with the permit applicant and proposed
repository to decide whether to approve
the proposed repository, based on the
criteria described in § 49.205(a), for the
collection that would be made under the
permit.
§ 49.75 What terms and conditions will a
permit contain?

(a) The authorized officer will use DI
Form 9003 (Paleontological Resource
Use Permit) when issuing permits for
activities on lands administered by
BLM, Reclamation, and FWS. The
authorized officer will use the NPS
Research Permit and Reporting System
when issuing a permit for activities on
lands administered by NPS. Permit
terms and conditions will include but
are not limited to:

E:\FR\FM\07DEP1.SGM

07DEP1

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

88190

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

(1) Permittee must not release,
disclose, or share information about the
specific location of paleontological
resources without the prior written
permission of the authorized officer.
(2) Permittee must report in writing to
the authorized officer any change in the
persons who are conducting activities
under the permit, and submit the
credentials of any new persons for
approval.
(3) Permittee must protect
paleontological sites and associated
resources from harm resulting from the
work under the permit, and is
responsible for the actions of all persons
working under the permit.
(4) Permittee, or a designee approved
by the authorized officer and named on
the permit, must be on site at all times
when fieldwork is in progress and have
a copy of the signed permit on hand.
(5) Permittee must comply with all
vehicle or access restrictions, safety or
environmental restrictions, local safety
conditions or restrictions, and
applicable federal, state, and local laws.
(6) Permittee acknowledges that the
geographic area within the scope of the
permit may be subject to other uses, and
will take steps to avoid or minimize
potential conflicts with such uses.
(7) Permittee will record locality
information on DI Form 9004
(Paleontological Locality Form), or in
another format approved for use under
the permit that captures the same
information.
(8) Permittee must report suspected
resource damage or theft of
paleontological or other resources to the
authorized officer as soon as possible,
but not to exceed 48 hours after learning
of such damage or theft.
(9) A copy of the permit must be kept
with the collection during transport and
shared with the approved repository.
(10) Permittee must deposit the
collection in the approved repository
and provide the bureau with DI Form
9008 (Repository Receipt for Collections
(Paleontology)), which includes but is
not limited to a certification by the
permittee that the collection was
transferred to the repository and a
certification by the approved
repository’s authorized official that the
collection was received.
(11) If the permittee has not
transferred the collection to the
approved repository by the due date of
the annual report or other schedule
approved for the permit, the permittee
must provide the authorized officer a
complete list and description of all
paleontological resources collected and
the current location of the
paleontological resources.

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

(12) Permittee acknowledges that all
paleontological resources collected
under the permit will remain federal
property, and that he or she will not
sell, trade, exchange, or keep for
personal use the paleontological
resources collected under the permit.
(13) Permittee must acknowledge the
permitting bureau in any report,
publication, paper, news article, film,
television program, or other media
resulting from the work performed
under the permit.
(14) Permittee is responsible for the
costs, monetary and otherwise, of the
permitted activity, including fieldwork,
data analysis, report preparation,
curation of the collection and its
associated records consistent with
subpart C of this part.
(15) Permittees conducting activities
on lands administered by BLM,
Reclamation, or FWS must submit
reports to the bureaus using DI Form
9005 (Paleontological Permit Report
Cover Sheet), or DI Form 9006
(Paleontology Consulting Report
Summary Sheet). Permittees conducting
activities on lands administered by NPS
must submit reports to the NPS under
the NPS Research Permit and Reporting
System.
(16) Permittee must comply with
timelines established by the permit.
(17) Permittee must conduct the work
consistent with the permit.
(18) Permittee must not transfer the
permit.
(b) A permittee must continue to
comply with applicable terms and
conditions in the event of permit
expiration, suspension, cancellation, or
revocation unless specified otherwise by
the authorized officer.
(c) The authorized officer may include
in the permit additional terms and
conditions necessary to carry out the
purposes of this part, including a bond
where warranted.
(d) For activities approved on lands
administered by BLM or Reclamation,
the authorized officer may provide
permittees with DI Form 9007
(Paleontology Work Notice to Proceed),
which contains site-specific guidance
and stipulations for the permittee. The
Notice to Proceed is part of the permit.
(e) Persons who do not comply with
the terms of a permit issued under this
part may be subject to civil or criminal
penalties.
§ 49.80 When and how may a permit be
modified, suspended, revoked, or
cancelled?

(a) Modification. The authorized
officer may modify a permit at the
permittee’s request; or when resource,
safety, or other administrative or

PO 00000

Frm 00055

Fmt 4702

Sfmt 4702

management reasons make permit
modification appropriate; or when there
is a violation of a term or condition of
a permit issued under this part.
(b) Suspension. The authorized officer
may suspend for up to 45 days activities
under the permit when resource, safety,
or other administrative or management
reasons make permit suspension
appropriate, or when the permittee
violates a term or condition of the
permit. If the issue prompting
suspension is not resolved within the
45-day period, the authorized officer
may modify, revoke, or cancel the
permit as appropriate to the specific
circumstance.
(c) Revocation. The authorized officer
may revoke a permit when the permittee
violates a term or condition of a permit,
is found to be ineligible for a permit, or
when the permittee fails to take the
actions necessary for ending a
suspension. The authorized officer will
revoke a permit immediately if any
person working under the authority of
the permit is convicted of a criminal
offense or assessed a civil penalty under
this part.
(d) Cancellation. The authorized
officer may cancel a permit when the
permittee requests cancellation, or when
resource, safety, or other administrative
or management reasons make permit
cancellation appropriate. Cancellation
of a permit does not imply fault on the
part of the permittee.
(e) Notification of modification,
suspension, revocation, or cancellation.
(1) The authorized officer will notify
the permittee of the modification,
suspension, revocation, or cancellation
verbally or in writing. The authorized
officer will, as soon as practicable,
confirm a verbal notification with a
written notification. A written
notification will be served on the
permittee by certified mail, return
receipt requested, or another verifiable
delivery method. The notification will
explain the reason for the modification,
suspension, revocation, or cancellation.
(2) In the case of a suspension, the
written notification will also include the
conditions or actions necessary for
ending the suspension; the anticipated
duration of the suspension or schedule
for resolution of the conditions that led
to the suspension; and a statement that
the permit will be modified, revoked, or
cancelled if the conditions that led to
the suspension are not resolved.
(3) The notification will inform the
permittee how to appeal the
modification, revocation, suspension, or
cancellation.
(f) Immediately effective. A
modification, suspension, revocation, or
cancellation is in full force and effective

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
immediately upon the permittee’s
receipt of the written notification of the
modification, suspension, revocation, or
cancellation.
§ 49.85 Can a permit-related decision be
appealed?

Permit applicants and permittees may
appeal the denial of a permit
application, and the modification,
suspension, revocation, or cancellation
of an issued permit.
§ 49.90 What is the process for appealing
a permit-related decision?

A permit-related decision may be
appealed using processes defined by the
issuing bureau.
(a) Permit-related decisions by BLM
may be appealed under the process
explained at 43 CFR part 4, subpart E.
(b) Permit-related decisions by FWS
may be appealed under the process
explained at 50 CFR 36.41(i).
(c) Permit-related decisions by
Reclamation may be appealed under the
process used for other types of scientific
research and collecting permits issued
by Reclamation, which will be specified
in writing in the permit-related
decision.
(d) Permit-related decisions by NPS
may be appealed under the process used
for other types of scientific research and
collecting permits issued by NPS, which
will be specified in writing in the
permit-related decision.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

§ 49.95 Has OMB approved the information
collection provisions of this part?

BLM, Reclamation, NPS, and FWS use
the information collected under this
part to manage, protect, and preserve
paleontological resources on and from
federal land. The Office of Management
and Budget (OMB) reviewed and
approved the information collection
requirements contained in this part and
assigned OMB Control No. 1093–XXXX.
OMB has approved the information
collection requirements for NPS
Research Permit and Reporting System,
which includes paleontological permits,
and assigned OMB Control No. 1024–
0236. A federal agency may not conduct
or sponsor and you are not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. You may send
comments on the information collection
requirements to the Office of the
Secretary, Departmental Information
Collection Clearance Lead, Department
of the Interior, 1849 C Street NW.,
Mailstop MIB–7056, Washington, DC
20240.

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

88191

Subpart C—Management of
Paleontological Resource Collections

§ 49.210 What is the process for
depositing the collection at the approved
repository?

§ 49.200

(a) The authorized officer will take the
following actions before the collection is
deposited at the approved repository:
(1) Work with the permittee and
approved repository, using scientific
principles and expertise, to ensure that
the collection is complete and that the
content of the collection will further
paleontological knowledge, public
education, or management of
paleontological resources;
(2) Review any existing agreement
between the bureau and the approved
repository to determine if that
agreement adequately addresses
requirements that are specific to the
collection; and
(3) Develop a new agreement, if an
adequate agreement does not exist
between the repository and the bureau.
(b) After the collection is deposited at
the approved repository, the permittee
or the repository will submit DI Form
9008 (Repository Receipt for Collections
(Paleontology)), to the authorized
officer. This form includes but is not
limited to a certification by the
permittee that the collection was
deposited at the repository, and a
certification by the approved
repository’s authorized official that the
collection has been received.

Where are collections deposited?

(a) A collection from federal land
made under a permit issued under this
part will be deposited in the repository
approved by the authorized officer
under § 49.205.
(b) The curation of paleontological
resources collected from federal land
before January 6, 2017 is governed by
the terms and conditions of the original
collection permit or agreement.
§ 49.205 How will bureaus approve a
repository for a collection made under this
part?

(a) During the permit application
process under subpart B of this part, the
authorized officer will decide whether
or not to approve a repository for the
deposit of the collection that will be
made under the permit, based on
whether the:
(1) Repository has facilities and staff
that provide curatorial services as
defined in this part;
(2) Repository has a scope of
collections statement or similar policy
document that identifies paleontological
resources as part of the repository’s
acquisition policy;
(3) Repository has access to
paleontological and curatorial staff
trained and experienced in managing
and preserving paleontological resource
collections;
(4) Repository’s past and current
performance meets applicable
Departmental standards;
(5) Deposit would meet the bureau’s
management goals for the collection;
and
(6) Repository will not release specific
location data to the public except as
consistent with § 49.25 or as provided in
an agreement between the repository
and the bureau.
(b) When the authorized officer
approves a repository for the collection,
that repository will be listed in the
approved permit, and will remain
approved to curate the collection unless
the authorized officer determines that
any one of the considerations in
paragraph (a) of this section is no longer
met. In that case, the authorized officer
will notify the repository in writing and
provide a reasonable time for the
repository to:
(1) Correct the deficiency;
(2) Move the collection to another
approved repository; or
(3) Take other actions the authorized
officer requests.

PO 00000

Frm 00056

Fmt 4702

Sfmt 4702

§ 49.215 What terms and conditions must
the agreement between the bureau and
approved repository contain?

(a) Agreements between the bureau
and approved repository will contain
the following information as deemed
appropriate by the authorized officer:
(1) Statement (updated as necessary)
that identifies the collection or group of
collections at the approved repository.
(2) Statement that asserts federal
ownership of the collection.
(3) Statement of work to be performed
by the approved repository.
(4) Statement of the responsibilities of
the bureau and of the approved
repository for the long-term care of the
collection.
(5) Statement that collections are
available for scientific and educational
uses and that the specific location data
may be shared consistent with § 49.25.
(6) Description of any special
procedures or restrictions for access to
controlled property, consumptive use,
reproductions, or curatorial services,
including loans.
(7) Statement describing the
frequency, methods, and reporting
process for inventories.
(8) Statement that all exhibits,
publications, and studies of
paleontological resources will

E:\FR\FM\07DEP1.SGM

07DEP1

88192

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

acknowledge the bureau that
administers the collection.
(9) Statement that copies of any
publications or reports resulting from
study of the collection will be made
available to the bureau.
(10) Statement describing how
collection management records will be
made available to the bureau that
administers the collection.
(11) Statement that employees of the
repository will take no actions whereby
any of the collection shall or may be
encumbered, seized, taken, sold,
attached, lost, stolen, destroyed or
damaged.
(12) Effective term of the agreement
and procedures for modification,
cancellation, suspension, extension, and
termination of the agreement, including
costs.
(13) Additional terms and conditions
as needed to manage the collection.
(b) The agreement must be signed by
an authorized representative of the
approved repository and the authorized
officer.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

§ 49.220 What are the standards for
managing the collections?

(a) Each approved repository must:
(1) Provide curatorial services
consistent with § 49.5, and make the
collections available for scientific
research, public education, and
management uses that further the Act,
subject to § 49.25;
(2) Ensure that use of the collections
is consistent with Departmental and
bureau museum management standards
and the terms of the agreement between
the bureau and the approved repository;
(3) Obtain approval of the authorized
officer on a case-by-case basis before
conducting or allowing reproduction or
consumptive use of part or all of the
collection, unless another procedure for
obtaining such approval is defined in
the agreement between the bureau and
the approved repository;
(4) Obtain approval of the authorized
officer and follow Departmental and
bureau policy when moving part or all
of the collection from museum to
working collections; and
(5) Conduct inventories consistent
with Departmental and bureau museum
management standards, and report the
results to the bureau.
(b) The approved repository may
charge reasonable fees, consistent with
applicable law, to persons who use, or
institutions that borrow, part or all of a
collection. Fees may cover costs for
handling, packing, shipping, and
insuring the collection, photocopying
associated records, and other costs
associated with that use.

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

Subpart D—Prohibited Acts
§ 49.300

What acts are prohibited?

A person may not:
(a) Excavate, remove, damage, or
otherwise alter or deface or attempt to
excavate, remove, damage, or otherwise
alter or deface any paleontological
resource located on federal land unless
this activity is conducted in accordance
with the Act and this part.
(b) Exchange, transport, export,
receive, or offer to exchange, transport,
export, or receive any paleontological
resource if the person knew or should
have known such resource to have been
excavated or removed from federal land
in violation of any provision, rule,
regulation, law, ordinance, or permit in
effect under federal law, including the
Act and this part.
(c) Sell or purchase or offer to sell or
purchase any paleontological resource if
the person knew or should have known
such resource to have been excavated,
removed, sold, purchased, exchanged,
transported, or received from federal
land.
(d) Make or submit any false record,
account, or label for, or any false
identification of, any paleontological
resource excavated or removed from
federal land.
Subpart E—Criminal Penalties
§ 49.400 What criminal penalties apply to
violations of this part?

(a) The penalties in this section do not
apply with respect to paleontological
resources in the lawful possession of a
person on or before March 30, 2009.
(b) Anyone who knowingly violates or
counsels, procures, solicits, or employs
another person to commit a prohibited
act identified in subpart D of this part
will, upon conviction, be assessed:
(1) Fines in accordance with 18
U.S.C., or imprisonment of up to 5
years, or both, if the sum of the
commercial and scientific value of the
paleontological resources involved and
the cost of response, restoration, and
repair of the resources and sites
involved is more than $500; or
(2) Fines in accordance with 18
U.S.C., or imprisonment of up to 2
years, or both, if the sum of the
commercial and scientific value of the
paleontological resources involved and
the cost of response, restoration, and
repair of the resources and sites
involved is $500 or less.
(c) Commercial and scientific values
and the cost of response, restoration,
and repair are determined under subpart
G of this part.
(d) In the case of a second or
subsequent violation by the same

PO 00000

Frm 00057

Fmt 4702

Sfmt 4702

person, the amount of the penalties
assessed under this subpart may be
doubled.
(e) To the extent that a prohibited act
under this subpart involves a violation
of other applicable law, the violator may
be subject to other criminal penalties.
Subpart F—Civil Penalties
§ 49.500 When can the authorized officer
assess a civil penalty?

(a) The authorized officer may assess
a civil penalty upon any person who
violates the provisions of this part or a
permit issued under this part, in
accordance with the process explained
in this subpart.
(b) For purposes of this subpart, each
violation is considered a separate
offense.
§ 49.505 How does the authorized officer
serve a notice of violation?

The authorized officer may serve a
notice of violation in person, by
certified mail, return receipt requested,
or other verifiable delivery method
upon a person that the authorized
officer believes has committed a
violation of this part.
§ 49.510 What is included in the notice of
violation?

A notice of violation will include:
(a) A concise statement of the facts
believed to show a violation has
occurred;
(b) A citation of the provisions of this
part or a permit issued under this part
alleged to have been violated;
(c) The amount of civil penalty
proposed;
(d) Notification of the right to await
the final assessment of civil penalty or
to object to the notice of violation and
proposed civil penalty, and the right to
file a request for hearing of the final
assessment of civil penalty. The notice
shall also inform the person of the right
to seek judicial review upon the
issuance of the final administrative
order under this subpart; and
(e) The name and contact information
of the authorized officer who is serving
the notice of violation.
§ 49.515 How is an objection to a notice of
violation and proposed civil penalty made
and resolved?

(a) Filing Objection. A person served
with a notice of violation and proposed
civil penalty may file a written objection
with the authorized officer within 30
days of the date the notice was received.
(b) Content of Objection. The
objection must:
(1) Clearly and concisely state the
reasons why the person believes that the
person did not commit a violation and/

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
or that the proposed civil penalty
should be reduced or eliminated;
(2) Be accompanied by any
documentation supporting the person’s
reasons for objecting; and
(3) Be signed by the person or the
person’s authorized representative.
(c) Issuing Determination. The
authorized officer will issue a
determination, served on the person by
a verifiable delivery method, sustaining
or denying the objection to the notice of
violation and/or proposed civil penalty
based on the information contained in
the written objection or furnished to the
authorized officer upon further request.
(d) Content of Determination. In the
determination, the authorized officer
will:
(1) Sustain the objection and revoke
the notice of violation and proposed
civil penalty, if the authorized officer
determines that the information
warrants a conclusion that no violation
occurred;
(2) Deny the objection, if the
authorized officer determines that the
information warrants a conclusion that
a violation occurred and that the
proposed civil penalty is not too high;
or
(3) Deny the objection in part and
sustain it in part, if the authorized
officer determines that the information
warrants a conclusion that a violation
has occurred, but the amount of the civil
penalty too high.
§ 49.520 When will the authorized officer
issue a final assessment of civil penalty?

The authorized officer will issue a
final assessment of civil penalty:
(a) If the person served with a notice
of violation and proposed civil penalty
does not file a timely objection; or
(b) If the person does file a timely
objection that is denied in whole or in
part under § 49.515.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

§ 49.525 How will the authorized officer
calculate the amount of a proposed and
final assessment of civil penalty?

(a) The authorized officer will
determine the amount of the civil
penalty by taking into account:
(1) The scientific or commercial
value, whichever is greater as
determined by the authorized officer, of
the paleontological resource involved;
(2) The cost of response, restoration,
and repair of the paleontological
resource and the paleontological site
involved;
(3) Other factors that the authorized
officer considers relevant, such as prior
violations or warnings or evidence of
malicious intent;
(4) Information provided under
§ 49.515 or furnished to the authorized
officer upon his or her request; and

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

(5) Mitigating factors, which may
include return of paleontological
resources and whether the person will
provide information that may assist the
bureau.
(b) Scientific and commercial values
and the cost of response, restoration,
and repair are determined under subpart
G of this part.
(c) In the case of any subsequent
violation by the same person, the
authorized officer may calculate a
penalty in accordance with paragraph
(a) of this section and double it for that
subsequent violation.
(d) The maximum penalty assessed
under paragraph (c) of this section for
any one violation may not exceed the
sum of:
(1) Two times the cost of response,
restoration, and repair of
paleontological resources and
paleontological site damage; plus
(2) Two times the scientific or
commercial value, whichever is greater
as determined by the authorized officer,
of the paleontological resources and
paleontological sites destroyed or not
recovered.
(e) The authorized officer will use
subpart G of this part to determine
scientific or commercial values and the
cost of response, restoration, and repair.
(f) The final assessment may be equal
to, less than, or more than the proposed
civil penalty.
§ 49.530 How will the authorized officer
issue the final assessment of civil penalty?

(a) The authorized officer will serve
the final assessment of civil penalty by
certified mail, return receipt requested,
or other verifiable delivery method.
(b) The final assessment of civil
penalty will include:
(1) The facts and conclusions that are
the bases for the authorized officer’s
determination that a violation occurred;
(2) The basis for the authorized
officer’s determination of the amount of
civil penalty assessed;
(3) Notification of the rights to accept
the final assessment of civil penalty or,
alternatively, to file a request for hearing
on the final assessment with a DCHD
administrative law judge under
§ 49.535(a)(2).
(4) A statement that the civil penalty
must be paid within 30 days of the date
that the final assessment of civil penalty
is received, unless the person served
with the final assessment of civil
penalty files a request for hearing in
accordance with this subpart and the
procedures specified in the notice.

PO 00000

Frm 00058

Fmt 4702

Sfmt 4702

88193

§ 49.535 What are the options and
timeframe to respond to the final
assessment of civil penalty?

(a) Response Options. A person who
receives a final assessment of civil
penalty may, within 30 days of the date
the assessment is received, do one of the
following:
(1) Accept the final assessment, either
in writing, by payment of the proposed
penalty, or by failing to timely file a
request for hearing under paragraph
(a)(2) of this section; or
(2) File a request for a hearing on the
final assessment before a DCHD
administrative law judge via certified
mail, return receipt requested, or other
verifiable delivery method with the
Departmental Cases Hearings Division,
Office of Hearings and Appeals,
Department of the Interior, 351 S. West
Temple, Room 6.300, Salt Lake City,
Utah 84101.
(b) Content of Request for Hearing. A
request for hearing must:
(1) Be signed by the person who
receives the final assessment of civil
penalty or a representative qualified to
represent that person under 43 CFR 1.3;
(2) Identify the final assessment of
civil penalty being challenged;
(3) State clearly and concisely the
reasons for challenging the final
assessment, including the reasons why
the person believes that he or she did
not commit a violation and/or that the
proposed civil penalty should be
reduced or eliminated;
(4) State the relief sought and the
basis for that relief;
(5) Be accompanied by the following
documentation:
(i) A copy of the notice of violation
and proposed civil penalty;
(ii) A copy of any objection and
supporting documentation filed under
§ 49.515(a); and
(iii) A copy of the final assessment of
civil penalty; and
(6) Contain a certificate
acknowledging service of the request for
hearing with the documentation listed
in paragraph (b)(5) of this section on the
Office of the Solicitor at the address
identified in paragraph (c) of this
section.
(c) Service. The person filing a request
for hearing must simultaneously send a
copy of the request and the
accompanying documentation to the
Office of the Solicitor, Department of
the Interior, 1849 C Street NW.,
Washington, DC 20240.
(d) Dismissal of Hearing Request.
(1) If the request for hearing is not
received by DCHD within 30 days of the
date of receipt of the final assessment,
the request for hearing will not be
considered and the hearing will be
dismissed.

E:\FR\FM\07DEP1.SGM

07DEP1

88194

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

(2) The request for hearing may be
dismissed for failing to meet any of the
requirements of paragraph (c) of this
section.
(e) Waiver of Hearing Right. A person
who accepts the final assessment under
paragraph (a)(1) of this section waives
the right to a hearing.
§ 49.540 What procedures govern the
DCHD hearing process initiated by a
request for hearing on the final
assessment?

(a) Upon receipt of a request for
hearing under § 49.535(a)(2), DCHD will
assign an administrative law judge to
preside over the hearing process and
issue a decision. DCHD will promptly
notify the parties of the assignment.
Thereafter, all pleadings, papers, and
other documents in the hearing process
must be filed directly with that judge,
with copies served on the other party.
(b) An attorney from the Office of the
Solicitor, DOI, will represent the
bureau. The attorney will enter his or
her appearance on behalf of the bureau
and file all motions and correspondence
between the bureau and the person who
filed the request for hearing.
Subsequently, any service upon the
bureau must be made to the attorney.
(c) To the extent not inconsistent with
the provisions of this subpart, the rules
in 43 CFR part 4, subparts A and B, and
in 43 CFR 4.422 through 4.437 will
apply to the hearing process under this
subpart.
(d) The hearing will be conducted in
accordance with 5 U.S.C. 554. The
bureau will have the burden of proving
by a preponderance of the evidence the
fact of the violation and the basis for the
amount of the civil penalty. Upon
completion of the hearing and
incorporation of the hearing transcript
in the record, the administrative law
judge will issue a written decision in
accordance with § 49.545 and serve it on
the parties.

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

§ 49.545 What will be included in the
administrative law judge’s decision?

(a) The administrative law judge’s
written decision will set forth:
(1) The findings of fact and
conclusions of law;
(2) The reasons and bases for the
findings; and
(3) An assessment of the penalty, if
any.
(b) The amount of any penalty
assessed will:
(1) Be determined in accordance with
this subpart; and
(2) Not be limited by the amount
assessed by the authorized officer under
§ 49.525 or by any offer of mitigation or
remission previously made.

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

(c) The administrative law judge’s
decision will become effective 31 days
from the date of the written decision
unless a timely appeal of the decision is
filed under § 49.550.
§ 49.550 How can the administrative law
judge’s decision be appealed?

(a) Filing appeal. Within 30 days of
the date of the administrative law
judge’s decision, either party to the
hearing process (the person who filed
the request for hearing or the bureau)
may appeal the administrative law
judge’s decision to the OHA Director by
filing a notice of appeal via certified
mail, return receipt requested, or other
verifiable delivery method to the
Director, Office of Hearings and
Appeals, Department of the Interior, 801
North Quincy Street, Arlington, Virginia
22203.
(b) Content of notice of appeal. The
notice of appeal must:
(1) Be signed by the person filing the
appeal or a representative qualified to
represent that person under 43 CFR 1.3;
(2) Identify the administrative law
judge’s decision being appealed,
including the DCHD docket number;
(3) State clearly and concisely the
reasons for challenging the decision,
including:
(i) The reasons why the person
believes that he or she did not commit
a violation and/or that the proposed
civil penalty should be reduced or
eliminated; and
(ii) A concise but complete statement
of the facts relied upon to challenge the
decision;
(4) State the relief sought and the
basis for that relief;
(5) Be accompanied by the following
documentation:
(i) A copy of the notice of violation
and proposed civil penalty;
(ii) A copy of the final assessment of
civil penalty; and
(iii) A copy of the administrative law
judge’s decision; and
(6) Contain a certificate
acknowledging service of the notice
with the documentation listed in
paragraph (b)(5) of this section on the
other party to the hearing process at the
address listed on the administrative law
judge’s decision.
(c) Service. The person filing a notice
of appeal must simultaneously send a
copy of the notice and the
accompanying documentation to each of
the following entities at the address
listed on the administrative law judge’s
decision:
(1) The other party to the hearing
process; and
(2) DCHD.
(d) Dismissal of appeal. If the notice
of appeal is not received by the OHA

PO 00000

Frm 00059

Fmt 4702

Sfmt 4702

Director within 30 days of the date of
the administrative law judge’s decision,
the notice of appeal will not be
considered and the appeal will be
dismissed.
(e) Stay of payment deadline. If the
administrative law judge’s decision is
appealed to the OHA Director, the
deadline for payment of the penalty will
be stayed pending resolution of the
appeal.
§ 49.555 What procedures govern an
appeal of an administrative law judge’s
decision to the OHA Director?

(a) Upon receipt of a notice of appeal
filed under § 49.550(a), the OHA
Director will appoint an Ad Hoc Board
to consider the appeal and issue a
decision thereon.
(b) To the extent not inconsistent with
the provisions of this subpart, the rules
in 43 CFR part 4, subparts A, B, and G,
will apply to the appeal proceedings
under § 49.550.
§ 49.560
paid?

When must the civil penalty be

A person assessed a civil penalty has
30 days from the date of the final
administrative decision in which to
make full payment of the final
assessment of the civil penalty, or agree
to a payment schedule. For the purposes
of this subpart, the final administrative
decision is:
(a) The final assessment of civil
penalty if the person served with the
final assessment does not file a timely
request for hearing under § 49.535(a)(2).
(b) The administrative law judge’s
decision on the request for hearing if a
timely appeal to the OHA Director is not
filed under § 49.550(a); or
(c) The decision of the Ad Hoc Board
of Appeals appointed by the OHA
Director if a timely appeal of the
administrative law judge’s decision was
filed under § 49.550(a).
§ 49.565 When may a person assessed a
civil penalty seek judicial review?

A person may file a petition for
judicial review in the United States
District Court for the District of
Columbia or in the district where the
violation occurred, within 30 days of
the decision of the Ad Hoc Board of
Appeals appointed by the OHA
Director. For purposes of the Act and
this part, that decision will be
considered a final administrative order.
The deadline for payment of the civil
penalty will be stayed pending
resolution of the judicial review.
§ 49.570 What happens if a civil penalty is
not paid on time?

(a) If the civil penalty is not paid by
the required deadlines, the United

E:\FR\FM\07DEP1.SGM

07DEP1

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules
States may take action to collect the
penalty assessed plus interest, attorneys’
fees, and collection costs.
(b) Failure to pay a civil penalty
assessed under this subpart is a debt to
the United States.
(c) Failure to pay a civil penalty
assessed under this subpart may prevent
a person from obtaining a future
authorization for activities related to
paleontological resources on federal
land as well as receiving other future
federal funding or assistance.
(d) By assessing a civil penalty under
this subpart, the United States does not
waive the right to pursue other legal or
administrative remedies.
§ 49.575 How will collected civil penalties
be used?

Civil penalties collected under this
subpart are available without further
appropriation to the bureau that
administers the federal land or
paleontological resources that were the
subject of the violation, and may be
used only to:
(a) Protect, restore, or repair the
paleontological resources and sites that
were the subject of the action, and to
protect, monitor, and study the
resources and sites;
(b) Provide educational materials to
the public about paleontological
resources, paleontological sites, or
resource protection; or
(c) Pay rewards under subpart H of
this part.
Subpart G—Determining Values and
the Costs of Response, Restoration,
and Repair

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

§ 49.600

What is scientific value?

The scientific value of a
paleontological resource is the value of
the scientific and educational
information associated with the
resource. It is determined by the
authorized officer based upon the
estimated costs of obtaining the
scientific and educational information
from the disturbed paleontological site
if the prohibited act had not occurred.
These costs may include, but are not
limited to:
(a) Research design development;
(b) Fieldwork;
(c) Laboratory analysis;
(d) Curation;
(e) Reports or educational materials;
and
(f) Lost visitor services or experience.
§ 49.605

What is commercial value?

The commercial value of a
paleontological resource is the monetary
value of that resource, and is
determined by the authorized officer
using comparable sales information,

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

appraisals, market value, or other
information for comparable resources. If
there is no comparable sales
information, appraisal, market value, or
other information, the authorized officer
will determine the commercial value of
the paleontological resource using other
methods such as scientific value or the
cost of response, restoration, and repair.
§ 49.610 What is the cost of response,
restoration, and repair?

The cost of response, restoration, and
repair of a paleontological resource or
paleontological site is determined by the
authorized officer, and includes but is
not limited to the costs of:
(a) Law enforcement investigations;
(b) Immediate stabilization;
(c) Longer term response, restoration,
and repair, including but not limited to
reconstructing or stabilizing the
resource or site, salvaging the resource
or site, erecting physical barriers or
other protective devices or signs to
protect the site, and monitoring the site;
(d) Fossil preparation, stabilization,
and conservation;
(e) Storage and curation of the
resources; and
(f) Reporting upon the above
activities.
Subpart H—Forfeiture and Rewards
§ 49.700 Will a violation lead to forfeiture
of a paleontological resource?

(a) A paleontological resource with
respect to which a violation under this
part occurred is stolen federal property
and is subject to forfeiture.
(b) The bureau may either deposit
forfeited resources into an approved
repository, or transfer or assign
administration of the forfeited resources
to federal or non-federal institutions to
be used for scientific or educational
purposes.
§ 49.705 What rewards may bureaus pay to
those who assisted in enforcing this part?

(a) The bureau may pay a reward to
the person or persons furnishing
information leading to a finding of civil
violation or criminal conviction.
(b) The reward may be no more than
half of the penalties collected. If several
persons provide the information, the
bureau may divide the reward among
them.
(c) The funds for the reward may
come from the penalties collected or
from appropriated funds.
(d) An officer or employee of federal,
state, or local government who furnishes
information or renders service in the
performance of official duties is not
eligible for a reward under this section.

PO 00000

Frm 00060

Fmt 4702

Sfmt 4702

88195

Subpart I—Casual Collection of
Common Invertebrate or Plant
Paleontological Resources on Bureau
of Land Management and Bureau of
Reclamation Administered Lands
§ 49.800 Is casual collecting allowed on
lands administered by NPS or FWS?

Casual collecting of paleontological
resources is not allowed on lands
administered by NPS or FWS. On those
lands, collecting any paleontological
resource must be conducted in
accordance with a permit as described
in subpart B of this part.
§ 49.805 Is casual collecting allowed on
lands administered by BLM or
Reclamation?

(a) Casual collecting of common
invertebrate or plant paleontological
resources is allowed on lands
administered by BLM in accordance
with this subpart, except:
(1) On any BLM-administered land
that is closed to casual collecting in
accordance with this part, other statutes,
executive orders, regulations, or land
use plans; or
(2) On BLM-administered national
monuments, national conservation
areas, outstanding natural areas, forest
reserves, or cooperative management
and protection areas, except where
allowed by other statutes, executive
orders, regulations, or land use plans.
(b) Casual collecting of common
invertebrate or plant paleontological
resources is allowed on land
administered by Reclamation only in
locations where Reclamation has
established a special use area for casual
collecting using processes defined in 43
CFR part 423, Public Conduct on Bureau
of Reclamation Facilities, Lands, and
Waterbodies. Casual collecting is
prohibited on Reclamation project land
that is administered by NPS or FWS.
(c) Persons interested in casual
collecting are responsible for learning
which bureau manages the land where
they would like to collect
paleontological resources, learning if the
land is open to casual collecting,
learning what may be collected in an
area, and obtaining information about
the managing bureau’s casual collecting
procedures.
§ 49.810

What is casual collecting?

(a) Casual collecting means the
collecting without a permit of a
reasonable amount of common
invertebrate or plant paleontological
resources for non-commercial personal
use, either by surface collection or the
use of non-powered hand tools,
resulting in only negligible disturbance
to the Earth’s surface or paleontological
or other resources.

E:\FR\FM\07DEP1.SGM

07DEP1

88196

Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / Proposed Rules

asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

(1) Common invertebrate or plant
paleontological resources are
invertebrate or plant fossils that have
been established as having ordinary
occurrence and wide-spread
distribution. Not all invertebrate or
plant paleontological resources are
common.
(2) Reasonable amount means a
maximum of 25 pounds per day per
person, not to exceed 100 pounds per
year per person. Pooling of individuals’
daily amounts to obtain pieces in excess
of 25 pounds is not allowed.
(3) Negligible disturbance means little
or no change to the surface of the land
and minimal or no effect to natural and
cultural resources, specifically:
(i) In no circumstance may the surface
disturbance exceed 1 square yard (3 feet
× 3 feet) per individual collector;
(ii) For multiple collectors, each
square yard of surface disturbance must
be separated by at least 10 feet;
(iii) All areas of surface disturbance
must be backfilled with the material that
was removed so as to render the
disturbance substantially unnoticeable
to the casual observer.
(4) Non-commercial personal use
means a use other than for purchase,
sale, financial gain, or research.
(5) Non-powered hand tool means a
small tool, such as a geologic hammer,
trowel, or sieve, that does not use or is
not operated by a motor, engine, or
other mechanized power source, and
that can be hand-carried by one person.
(b) In order to preserve
paleontological or other resources, or for
other management reasons, the
authorized officer may establish
limitations on casual collecting,
including but not limited to reducing
the weight of common invertebrate or
plant paleontological resources below
the amount specified in this subpart;

VerDate Sep<11>2014

17:23 Dec 06, 2016

Jkt 241001

limiting the depth of disturbance;
establishing site-specific dates or
locations for collecting; or establishing
what is common in a specific area.
(c) Collecting common invertebrate or
plant paleontological resources
inconsistent with any of the limitations
in paragraphs (a) or (b) of this section is
not casual collecting, and must be
immediately discontinued.
(d) Collecting common invertebrate or
plant paleontological resources
inconsistent with this subpart is a
prohibited act and may result in civil or
criminal penalties.
Subtitle B—Regulations Relating to
Public Lands
Subchapter A—General Management
PART 8360—VISITOR SERVICES
2. Revise the authority citation for part
8360 to read as follows:

■

Authority: 16 U.S.C. 470aaa et seq., 670 et
seq., 877 et seq., 1241 et seq., and 1281c; and
43 U.S.C. 315a and 1701 et seq.

3. Revise § 8360.0–3 to read as
follows:

■

§ 8365.0–3

Authority.

The regulations of this part are issued
under the provisions of the Federal
Land Policy and Management Act of
1976 (43 U.S.C. 1701 et seq.), the Sikes
Act (16 U.S.C. 670g), the Taylor Grazing
Act (43 U.S.C. 315a), the Wild and
Scenic Rivers Act (16 U.S.C. 1281c), the
Act of September 18, 1960, as amended,
(16 U.S.C. 877 et seq.), the National
Trails System Act (16 U.S.C. 1241 et
seq.), and the Paleontological Resources
Preservation Act (16 U.S.C. 470aaa et
seq.).
■ 4. Amend § 8365.1–5 by revising
paragraphs (b)(2), (b)(4), and (b)(5) and
adding paragraph (b)(6) to read as
follows:

PO 00000

Frm 00061

Fmt 4702

Sfmt 9990

§ 8365.1–5

Property and resources.

*

*
*
*
*
(b) * * *
(2) Nonrenewable resources such as
rocks, mineral specimens, and
semiprecious gemstones;
*
*
*
*
*
(4) Mineral materials as provided
under subpart 3604;
(5) Forest products for use in
campfires on the public lands. Other
collection of forest products shall be in
accordance with the provisions of
Group 5500 of this title; and
(6) Common invertebrate and plant
paleontological resources as provided
under subpart 49 of this title.
*
*
*
*
*
Title 50: Wildlife and Fisheries
PART 27—PROHIBITED ACTS
5. The authority citation for part 27
continues to read as follows:

■

Authority: 5 U.S.C. 685, 752, 690d; 16
U.S.C. 460k, 460l–6d, 664, 668dd, 685, 690d,
715i, 715s, 725; 43 U.S.C. 315a.

6. Amend § 27.63 by adding paragraph
(c) to read as follows:

■

§ 27.63 Search for and removal of other
valued objects.

*

*
*
*
*
(c) Permits are required for the
collection of paleontological resources
on national wildlife refuges in
accordance with the provisions of 43
CFR part 49.
Elizabeth Klein,
Principal Deputy Assistant Secretary, Policy
Management and Budget.
[FR Doc. 2016–29244 Filed 12–6–16; 8:45 am]
BILLING CODE 4333–15–P; 4310–84–P; 4312–52–P;
4332–90–P

E:\FR\FM\07DEP1.SGM

07DEP1