# Paleontological Resources Preservation

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-08483

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 17, 2015
- **Citation:** 80 FR 21588

## Text

DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 214, 261, and 291
RIN 0596-AC95
Paleontological Resources Preservation

AGENCY:

Forest Service, USDA.

ACTION:

Final rule.

SUMMARY:

The U.S. Department of Agriculture (USDA or Department) is implementing regulations under the Omnibus Public Land Management Act of 2009 paleontological resources preservation subtitle (the Act). This rule provides for the preservation, management, and protection of paleontological resources on National Forest System lands (NFS), and insures that these resources are available for current and future generations to enjoy as part of America's national heritage. The rule addresses the management, collection, and curation of paleontological resources from NFS lands including management using scientific principles and expertise, collecting of resources with and without a permit, curation in an approved repository, maintaining confidentiality of specific locality data, and authorizing penalties for illegal collecting, sale, damaging, or otherwise altering or defacing paleontological resources.

DATES:

This rule is effective May 18, 2015.

ADDRESSES:

Information on this final rule may be obtained via written request addressed to USDA Forest Service, Michael Fracasso, M&GM, 740 Simms Street, Golden, CO 80401. The Forest Service Paleontological Resources Preservation procedures are set out in Title 36, Code of Federal Regulations, Part 291, and are available electronically via the World Wide Web/Internet at
http://www.gpoaccess.gov/cfr/index.html.

FOR FURTHER INFORMATION CONTACT:

Michael Fracasso, Forest Service, at 303-275-5130, or
mfracasso@fs.fed.us.

Individuals who use telecommunications devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

Background

The Paleontological Resources Preservation subtitle of the Omnibus Public Land Management Act, 16 U.S.C. 470aaa to aaa-11 (the Act), requires the USDA and the U.S. Department of the Interior (DOI) to issue implementation regulations. In accordance with 16 U.S.C. 470aaa-1, these regulations would serve to manage and protect paleontological resources on National Forest System lands using scientific principles and expertise.

In FY 1999, the Interior Appropriations Subcommittee requested that the DOI, the Forest Service, and the Smithsonian Institution prepare a report on fossil resource management on public lands (see S. Rep. 105-227, at 60 (1998)). The request directed the agencies 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 public lands. During the course of preparing the report, the agencies held a public meeting and gathered public input. The DOI report to Congress, “Assessment of Fossil Management of Federal and Indian Lands,” was published in May 2000. The Paleontological Resources Preservation Act (PRPA) was introduced in the 107th Congress after the report was released. The PRPA was modeled after the Archaeological Resources Protection Act (ARPA) and emphasized the recommendations and guiding principles in the May 2000 report. The legislation was re-introduced in subsequent Congresses through the 111th Congress when it was combined with other natural resources legislation in an omnibus bill that became law on March 30, 2009 (the Act).

The Act requires that implementation be coordinated between the Secretaries of Agriculture and Interior (Secretaries) (16 U.S.C. 470aaa-1). Accordingly, the USDA and the DOI formed an interagency coordination team (ICT) in April 2009 to draft the proposed regulations. Members of the ICT included program leads for paleontology, archaeology, and regulatory specialists from the Forest Service, DOI Bureau of Land Management (BLM), National Park Service (NPS), Bureau of Reclamation (BOR), and Fish and Wildlife Service (FWS).

Response to Comments

The Paleontological Resources Preservation proposed rule was published in the
Federal Register
on May 23, 2013 (78 FR 30810), for a 60-day comment period, ending July 22, 2013. The Forest Service (Agency) received 177 responses, consisting of letters, emails, and Web-based submittals. Of those, 131 were original responses, and the remaining 46 responses were organized response campaign (form) letters. Comments were received from the public (almost equally distributed among professional academic paleontologists, consultants, and students in higher education, and amateur collectors and individuals that did not identify an affiliation), paleontological repository institutions, and government and/or quasi-government agencies.

Public comment on the proposed rule addressed a range of topics, but focused on the following areas: Opposition to formal establishment of restrictions and/or operating conditions placed on casual collection of common invertebrate and plant paleontological resources, confidentiality of specific locations of paleontological resources, requirements associated with permits to collect paleontological resources, and operating standards for approved repository institutions housing paleontological resources from National Forest System lands. However, most provisions receiving critical comments are statutory requirements per the Act.

The following is a description of specific comments received on the proposed rule, responses to comments, and changes made in response to comments. Each comment received consideration in the development of the final rule. In the responses to comments that follow, the term “the Act” refers to the provisions for Paleontological Resources Preservation as stated in the Omnibus Public Land Act of 2009 (Pub. L. 111-011, Title VI, Subtitle D, Sec. 6310).

General Comments

The Department received the following comments not specifically tied to a particular section of the 2013 proposed rule.

Comment: Paleontological Resource Preservation regulations and the Act.
Respondents expressed appreciation of the Forest Service's efforts in developing regulations to implement the Act. Respondents welcomed that the regulations provide clarification of stipulations in the Act, and expressed support for the intentions of the Act and their implementation in the regulations to provide for preservation, management, and protection of paleontological resources on National Forest System lands.

Response:
The Act stipulates that the Secretary of Agriculture shall issue such regulations as are appropriate to carry out the provisions of the Act, as soon as practical after the date of enactment of

the Act. The Department agrees with the respondents that these regulations appropriately implement the Act by providing clarification of stipulations in the Act that ensure the preservation, management, and protection of paleontological resources on National Forest System (NFS) lands using scientific principles and expertise.

Comment: Regulations establish uniform and comprehensive rules for paleontological resource management.
Respondents expressed the view that the regulations represent a needed advance in development of a comprehensive and uniform Agency-wide framework for the management and conservation of paleontological resources on National Forest System lands. One respondent expressed the view that the regulations lay the groundwork for greater roles in research and resource management by Agency paleontologists who are positioned to facilitate permitted research, with the goal of preservation and carefully managed use of paleontological resources. Such managed use would ensure that the public's property remains properly tracked, documented, overseen, and managed by professionals for the benefit of science. One respondent suggested that the regulations concerning permitting are a welcome improvement.

Response:
The Department acknowledges that the Act and the regulations establish uniform, Agency-wide requirements for casual collecting, permitted collecting, and management of collections of paleontological resources from NFS lands for the first time. The Department encourages appropriate uses of paleontological resources, and expects that users of paleontological resources would be encouraged by the knowledge that uniform standards now exist for casual collecting, permitted collection, and management of collections of paleontological resources that will be applied consistently across the Agency. Prior to these regulations, the use of paleontological resources was largely subject to local administrative unit policy, and variability in policy between administrative units was a source of confusion and discouragement to some users.

Comment: Management of paleontological resources using scientific principles and expertise.
Respondents expressed appreciation that the regulations recognize that paleontological resources are scientific resources, and that management decisions concerning such resources must be made using scientific principles and expertise.

Response:
The Department acknowledges the appreciation expressed by respondents for its role in development of these regulations that establish a solid foundation for the management of paleontological resources on NFS lands using scientific principles and expertise. Such informed management is fundamental to the preservation of paleontological resources that comprise a nonrenewable and irreplaceable part of America's natural heritage. Paleontological resources on NFS lands are part of the public trust. The Act and these regulations would ensure that scientifically important specimens remain Federal property in the public realm, and that ownership of such resources is not transferred to any single individual wherein access to the resource and associated information may become unavailable to the public.

Comment: Regulations will deter loss of paleontological resources related to unrestricted collection.
Respondents claim to have witnessed potential theft and/or vandalism of paleontological resources while in the field and significant damage to and destruction of paleontological resources caused by hand tools used during collection. Respondents expressed the view that they are appreciative of and support the Department's efforts in formulating these regulations to manage, preserve and safeguard the Nation's fossil resources and associated scientific information located on National Forest System lands.

Response:
The Department appreciates the concern expressed by the respondents regarding observed destruction of paleontological resources on NFS lands. The Department expects that provisions for casual collecting and permitted collection of paleontological resources as established in the regulations would promote the appropriate use of such resources. Conversely, provisions for enforcement and penalties as established in the regulations would be expected to deter resource loss attributed to inappropriate collection, vandalism, and/or theft, as described by the respondents.

Comment: Additional Agency paleontologists are needed to administer regulations.
One respondent expressed the view that additional Agency paleontologists are needed to administer the regulations, particularly with respect to paleontological resource permitting.

Response:
The Forest Service employs paleontology specialists who will be involved in administration of the regulations. The issue of paleontology specialist staffing levels within the Agency is beyond the scope of the regulations.

Comment: Regulations should not place restrictions on access or use of public lands.
One respondent expressed the view that regulations should not place any restrictions on access or use of public lands.

Response:
The Forest Service is accorded the authority to manage NFS lands against depredations and to make rules and regulations to regulate occupancy and use in accordance with the Organic Act of 1897. The Paleontological Resources Preservation Act of 2009 stipulates that the Secretary of Agriculture shall issue such regulations as are appropriate to carry out the provisions of the Act, as soon as practical after the date of enactment of the Act. Consequently, the development of these regulations is required by the Act. The Act and the regulations explicitly establish a legal basis for the activity of casual collecting of paleontological resources for the first time. The Act was enacted, and these regulations have been developed to preserve paleontological resources for current and future generations, because paleontological resources are nonrenewable and are an irreplaceable part of America's natural heritage. Paleontological resources on NFS lands are part of the public trust. The Act and these regulations would ensure, in part, that scientifically important specimens remain Federal property in the public realm, and that ownership of such resources is not transferred to any single individual wherein access to the resource and associated information may become unavailable to the public.

Comment: Proposed regulations concerning collection by amateurs are detrimental to the advancement of paleontological science.
Several respondents expressed the view that regulation of collection of paleontological resources by amateurs on National Forest System lands is counter-productive to the advancement of paleontological science, and that such regulation does not recognize the important role of citizen-scientists in the advancement of paleontological science. Respondents suggested that paleontological discoveries made by amateurs on public lands have contributed greatly to the science of paleontology, and that noteworthy amateur contributions to paleontology have been formally recognized by the paleontological profession through vehicles such as the Strimple Award offered by the Paleontological Society. Respondents expressed the view that there are many more amateur collectors than professional research collectors,

and that many amateur collectors act as proxy collectors for researchers. Respondents suggested that amateurs will stop or reduce collecting in response to restrictions, resulting in a reduced flow of collection-based knowledge from amateurs to the scientific community. One respondent suggested that amateurs would continue to collect, but would keep their collecting sites and collections secret. Respondents suggested that many private amateur paleontological collections are ultimately donated to researchers, public institutions such as museums and schools, and individuals such as children with an interest in paleontology.

Response:
The Department acknowledges the historical and continued roles that amateurs and/or citizen scientists have played in the advancement of paleontological science and the promotion of interest in paleontology in non-professional members of the public, including children and students in public education settings. The Department does not consider that these regulations would restrict collecting by amateurs, or such contributions as described above resulting from amateur collections. Rather, the Act and the regulations explicitly establish a legal basis for the activity of casual collecting of paleontological resources for the first time. Individuals who wish to collect paleontological resources in a manner beyond the scope of conditions established for casual collection are not precluded from doing so under the regulations; however, a permit would be required. Collection by amateurs acting as proxies for researchers would be considered research collection; such collection is not precluded under the regulations; however, a permit would be required. The Department expects that an informed and law-abiding collecting public would be aware of conditions for casual collecting as established in the regulation and would elect to legally collect by adhering to those conditions. Ethical amateur collectors practicing casual collection in accordance with established conditions, or permitted collection if such collection is beyond the scope of casual collection, would have no cause to keep collecting sites and collections secret from the Agency under the regulations.

Comment: Restrictions on collection of paleontological resources by amateurs are not necessary.
Respondents have expressed the view that the proposed regulations represent an infringement of the public's right to collect fossils. One respondent expressed the view that existing laws and regulations are sufficient to protect paleontological resources without the imposition of new regulations. One respondent questioned from what harm are paleontological resources being protected by the proposed restrictions on collection, and another respondent suggested that such restrictions are not in the best interests of society because collection does not detrimentally affect public lands. Respondents have also suggested that the proposed restrictions on collection will not protect paleontological resources, because fossils that are not collected are eventually destroyed by natural processes of weathering and erosion and are ultimately lost to the public and to science. Respondents expressed the view that resource impacts resulting from amateur collection are negligible with respect to permitted activities such as logging, mining, and grazing. Respondents expressed the view that the regulations would encourage enforcement resulting from collection of specimens that would otherwise be lost to erosion, and that the regulations would criminalize commonplace collecting activities of amateurs and well-intentioned scientists.

Response:
The Act stipulates that the Secretary of Agriculture shall issue such regulations as are appropriate to carry out the provisions of the Act, as soon as practical after the date of enactment of the Act. Consequently, the development of these regulations is required by the Act and must be consistent with the Act. The Act and the regulations explicitly establish a legal basis for the activity of casual collecting of paleontological resources for the first time. The Act was enacted and these regulations have been developed to preserve paleontological resources for current and future generations because paleontological resources are nonrenewable and are an irreplaceable part of America's natural heritage. Paleontological resources that are damaged or lost because of theft, vandalism, and/or inappropriate method of collection cannot be replaced or renewed and are lost forever. Paleontological resources on NFS lands are part of the public trust. The Act and these regulations would ensure that scientifically important specimens remain Federal property in the public realm, and that ownership of such resources is not transferred to any single individual wherein access to the resource and associated information may become unavailable to the public. The regulations do not prevent collection of paleontological resources that might otherwise be destroyed by weathering or erosion, but they do establish conditions for such collection. Other surface disturbing activities as specified by the respondents require authorization from the Forest Service; casual collecting of common invertebrate and plant paleontological resources does not. Such authorizations generally require a formal assessment under the National Environmental Policy Act (NEPA) in which potential impacts associated with the activity are disclosed and potential mitigation of such impacts may be proposed. Because casual collecting does not require an authorization or other Agency decision, conditions are established for casual collection to ensure that surface disturbance related to such collection is negligible and does not exceed any threshold that would otherwise trigger the need for a NEPA assessment of the activity. The Department does not expect that the regulations would criminalize commonplace collecting activities. Rather, the Department expects that an informed and law-abiding collecting public would be aware of conditions for casual collecting as established in regulation and would elect to legally collect by adhering to those conditions. The Department could consider the intent and degree of non-compliance regarding regulated collecting activities in decisions regarding potential enforcement.

Comment: Restrictions on amateur collection are counter-productive to the goal of educating the public concerning paleontological resources.
Respondents have expressed the view that amateur collection of fossils by children and students serves as a gateway to continued interest and education in paleontology and science in general, and that such interest results in the will to conserve such resources and to contribute private funds toward supporting paleontological research. Respondents have suggested that restrictions on amateur collection will serve as a disincentive for such collection and result in loss of interest and further pursuit of knowledge in paleontology and science. One respondent expressed the view that the scientific usefulness of common fossils is limited, but that their educational value for amateur collectors is high. Another respondent suggested that display of amateur collections in homes stimulates interest in paleontology among visitors. One respondent expressed the view that the development of paleontological expertise or education by nonprofessional, avocational advanced amateurs requires substantial collection

experience which cannot be obtained if unnecessary restrictions are imposed on collection by amateur, avocational, and/or paraprofessional paleontologists.

Response:
The Department acknowledges the value of fossils in stimulating interest and continued education in science among children and students, and that paleontology is often viewed as a “gateway” to science education. The Act and the regulations explicitly establish a legal basis for the activity of casual collecting of paleontological resources for the first time. The Department expects that casual collectors, including children and students, would be encouraged by the knowledge that uniform standards now exist for casual collecting that will be applied consistently across the Agency. The respondents' suggestion that conditions established for casual collecting would serve as a disincentive for collection and result in loss of interest and further pursuit of knowledge in paleontology and science are conjectural and not substantiated. Individuals who wish to develop paleontological expertise or education by collecting paleontological resources in a manner beyond the scope of conditions established for casual collection are not precluded from doing so under the regulations; however, a permit would be required.

Comment: Restrictions on amateur collection of paleontological resources will reduce their recreational value.
Respondents expressed the view that amateur collection of fossils is an enjoyable family activity, and that restrictions on amateur collection will reduce the opportunity for the public to use and enjoy National Forest System lands with respect to fossil collecting. One respondent suggested that the scientific usefulness of common fossils is limited, but that their recreational value for amateur collectors is high.

Response:
The Department acknowledges the recreational value placed on fossils by casual and amateur collectors. The Act and the regulations explicitly establish a legal basis for the activity of casual collecting of paleontological resources for the first time. The Department encourages appropriate uses of paleontological resources, and expects that recreational users of paleontological resources would be encouraged by the knowledge that uniform standards now exist for casual collecting that will be applied consistently across the Agency. The Department does not consider that conditions associated with casual collecting would reduce their recreational value. Individuals who wish to collect paleontological resources for recreational purposes in a manner beyond the scope of conditions established for casual collection are not precluded from doing so under the regulations; however, a permit would be required.

Comment: Regulations do not distinguish among diverse types of paleontological resources.
Respondents expressed the view that the regulations treat all paleontological resources the same, whereas common invertebrate and plant fossils merit fewer restrictions on collection than do vertebrate fossils and uncommon invertebrate and plant fossils. Respondents suggested that common invertebrate and plant fossils may exist in numbers of tens of thousands to hundreds of thousands at any given location, and that most such specimens would be lost to erosion if not collected. One respondent expressed the view that the apparent rarity of certain fossils often reflects the availability of access to collecting areas, rather than actual rarity of specimens.

Response:
The Act and the regulations do distinguish among diverse types of paleontological resources, and such distinctions are reflected by establishing casual collecting as an activity that is limited to common invertebrate and plant paleontological resources. Collection of other paleontological resources, and collection of common invertebrate and plant fossils for research purposes, requires a permit which may be considered a higher level of restriction. Collection of common invertebrate and plant fossils outside the scope of conditions established for casual collecting is not precluded under the regulations; however, a permit would be required.

Comment: Regulations should foster collection of paleontological resources.
One respondent expressed the view that the regulations be written to foster the collection of paleontological resources by all members of the public and that paleontological resources be shared by placing them into public and private institutions for purposes of publication and preservation.

Response:
The Act and the regulations as written establish uniform, Agency-wide requirements for casual collecting and permitted collecting for the first time. The Department encourages appropriate uses of paleontological resources by all members of the public, and expects that users of paleontological resources would be encouraged by the knowledge that uniform standards to be applied consistently across the Agency now exist for casual collecting and permitted collection of paleontological resources. The regulations establish that paleontological resources collected under a permit must be deposited in an approved repository where they will be preserved for the public and made available for scientific research and public education.

Comment: Roles of permittee and repository not differentiated.
One respondent expressed the view that the regulations misunderstand the difference in roles of the permittee and repository.

Response:
The regulations do not misunderstand the difference in roles of a permit holder and a repository, although such distinction may not have been expressed clearly in certain areas of the proposed regulations. Respondents identified several specific areas in the proposed regulations where such differences were unclear, and the Department has modified the language in those areas, as appropriate, in these final regulations to provide clarity regarding the respective roles of a permit holder and a repository.

Comment: New funding sources for paleontological resource studies.
One respondent suggested that the effort expended in drafting these regulations be leveraged to develop new funding sources for the scientific study of paleontological resources on National Forest System lands.

Response:
The Department agrees that development of new funding sources for scientific study of paleontological resources on National Forest System lands would be beneficial. However, it is beyond the scope of these regulations to address funding of research on paleontological resources.

Comment: Clarity of language and intent in regulations.
One respondent expressed the view that it is imperative that clarity of regulatory language reflect clarity in intent of the regulations.

Response:
The Department agrees that clarity of regulatory language should reflect clarity of intent of the regulations. The Department has strived to provide such clarity in these final regulations, reflecting consideration of public comments on the proposed regulations that suggested areas that would benefit from additional discussion.

Comment: Request for consultation with rule writers.
Two respondents requested an opportunity to meet with rule writers to discuss their concerns prior to drafting of the final rule.

Response:
The procedure followed by the Department in soliciting public comment following
Federal Register
publication of the proposed regulations is in accordance with the requirements established in the Uniform Procedure Act. The comments received during the designated 60-day public comment

period were appropriately considered by the Department during development of the final regulations. The Department elected not to consult with particular individuals and/or organizations outside of the formal public comment period in order to avoid the appearance of providing privileged access to and influence on the rule-making process by certain interested parties and not others.

Comment: Availability of fossils for scientific study would diminish under regulations.
One respondent expressed the view that the regulations do not provide standards to maximize the availability of fossils for scientific study, but rather the availability of fossils for scientific study would be diminished under the regulations.

Response:
Although a permit would now be uniformly required for collection of paleontological resources for scientific study (that is, research), the Department does not consider this requirement would diminish the availability of fossils for such scientific study. Individuals with eligibility and qualifications commensurate with the nature of the proposed research are encouraged to apply for permits to collect paleontological resources for scientific study. The Department expects that researchers would be encouraged by the knowledge that uniform standards to be applied consistently across the Agency now exist for permitted collection of paleontological resources.

Comment: Natural Resources Conservation Service should be a cooperating agency.
One respondent expressed the view that the Natural Resources Conservation Service (NRCS) should be designated a cooperating agency with respect to the regulations.

Response:
The designation of the NRCS as a cooperating agency with respect to administration of these regulations is beyond the scope of these regulations. The Act applies to Federal land, specifically land controlled or administered by the Secretary of the Interior, except Indian land; or NFS lands controlled or administered by the Secretary of Agriculture. NRCS does not manage Federal land, and consequently the Act and these regulations do not apply to NRCS.

Comment: Public comment period should be extended.
Respondents expressed the view that the public comment period for the draft regulations occurred during the summer field collection season, and that the public comment period should be extended by 90 days to ensure adequate feedback by interested parties.

Response:

Federal Register
publication of the proposed regulations was outreached to a number of identified stakeholder organizations at the time of publication. Notice was provided of the publication date and the 60-day public comment period, which partially overlapped what respondents have referred to as the summer field collection season. However, the Department considers that few, if any, individuals spend 60 consecutive days performing field work, and that the 60-day comment period afforded ample opportunity for interested parties to provide comment before or after engaging in field activities. One-hundred-seventy-seven (177) respondents provided comments during the comment period, and the comments were nearly evenly distributed between academic paleontologists and casual or amateur collectors. The majority of comments were concentrated among several well-defined areas of the proposed regulations. Given the number of comments received from an affected community of relatively small overall size, the demographics of the respondents, and the focus of comments on certain areas, the Department considers that areas of public concern in the proposed regulations have been appropriately identified, and that interested parties had the opportunity to provide public comment and those that wished to provide comment did so. Moreover, those respondents who requested a comment period extension did also provide comment on the body of the proposed regulations during the designated comment period. Accordingly, the Department elected not to extend the public comment period.

Section by Section Explanation of the Final Rule

The following section-by-section response to the comments on the proposed rule explains the approach taken in the development of the final rule to National Forest System paleontological resources preservation.

Part 291—Paleontological Resources Preservation

This part contains regulations on the management, protection, and preservation of paleontological resources on National Forest System lands using scientific principles and expertise, including the collection of paleontological resources with and without a permit, curation of paleontological resources in approved repositories, confidentiality of paleontological locality information, and criminal and civil penalties.

Section 291.1 Purpose

These final regulations provide for the preservation, management, and protection of paleontological resources on National Forest System (NFS) lands. Legislative history
1

of the Act demonstrates that it was enacted to preserve these resources for current and future generations because paleontological resources are nonrenewable and are an irreplaceable part of America's natural heritage.

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).

This section clarifies that the Secretary of Agriculture (Secretary) will manage and protect paleontological resources on NFS lands using scientific principles and expertise. This section clarifies that science, rather than other values, will be the primary management tool for paleontological resources on NFS lands. These regulations provide for the coordinated management of paleontological resources and promote research, public education, and public awareness.

Section 291.1—Response to Comments

Comment: Who are fossils being saved for?
One respondent expressed the view that clarification should be provided regarding who the regulations are saving fossils for.

Response:
The Act was enacted and these regulations have been developed to preserve paleontological resources for current and future generations because paleontological resources are nonrenewable and are an irreplaceable part of America's natural heritage. Paleontological resources that are damaged or lost because of theft, vandalism, and/or inappropriate method of collection cannot be replaced or renewed and are lost forever. Paleontological resources on National Forest System lands are part of the public trust. The Act and these regulations would ensure that scientifically important specimens remain Federal property in the public realm, and that ownership of such resources is not transferred to any single individual wherein access to the resource and associated information may become unavailable to the public.

Comment: Regulations replace management using scientific principles and expertise by bureaucracy.
Two respondents suggested that the imposition of regulations concerning paleontological resources adds unnecessary policing and bureaucracy

administered by nonscientists, which is contrary to the management of such resources using scientific principles and expertise as stipulated in the Act.

Response:
The Act stipulates that the Secretary of Agriculture shall issue such regulations as are appropriate to carry out the provisions of the Act, as soon as practical after the date of enactment of the Act. Consequently, the development of these regulations is necessitated by the Act. Collection of paleontological resources under appropriate authorizations as established in the regulations will facilitate inventory and monitoring of such resources as called for in the Act, and such inventory and monitoring will provide the knowledge base that is necessary for the management of paleontological resources using scientific principles and expertise, as stipulated in the Act. The Forest Service employs paleontology specialists who will be involved in administration of the regulations.

Comment: Restrictions on casual collection do not encourage uses as stated.
Two respondents expressed the view that conditions established for casual collecting do not encourage the scientific, educational, and casual collection of paleontological resources as stated.

Response:
The Act stipulates that casual collecting of common invertebrate and plant paleontological resources is subject to conditions regarding personal use, reasonable amount, use of non-powered hand tools, and negligible disturbance. These regulations define and clarify these conditions. Collection of paleontological resources for scientific and educational uses would generally require a permit. The Act and the regulations establish uniform, Agency-wide requirements for casual collecting and permitted collecting for the first time. The Department encourages appropriate uses of paleontological resources, and expects that users of paleontological resources would be encouraged by the knowledge that uniform standards to be applied consistently across the Agency now exist for casual collecting and permitted collection of paleontological resources. Prior to these regulations, use of paleontological resources was largely subject to local administrative unit policy, and variability in policy between administrative units was a source of confusion and discouragement to some users.

Section 291.2 Authorities

Section 291.2 cites the Paleontological Resources Preservation subtitle of the Omnibus Public Land Management Act (the Act) under which the proposed regulations are promulgated.

Section 291.3 Exceptions

Section 291.3 addresses the scope of these regulations, based on 16 U.S.C. 470aaa-10.

Section 291.3(a) and (b) states that these regulations would not invalidate, modify, or impose any additional restrictions or permitting requirements for activities permitted under the general mining laws, the mineral or geothermal leasing laws, laws providing for minerals materials disposal, or laws and authorities relating to reclamation and multiple uses of National Forest System lands. The USDA would continue to use other applicable laws and regulations as the authority for such restrictions or requirements. The USDA would be authorized to cite the Act or these final regulations as needed for the protection of paleontological resources when planning, managing, regulating, or permitting various activities on National Forest System land covered by the Act.

Section 291.3(c) states that Indian lands, as defined in these regulations, are exempt from the scope of these regulations.

Section 291.3(e) states that the final regulations would not apply to, or require a permit for, casual collecting of a rock, mineral, or fossil that is not protected under the Act and these final regulations. Such rocks, minerals, and fossils are covered by other laws, regulations, and policies.

Section 291.3(f) states that these final regulations would not affect any land other than National Forest System lands or affect the lawful recovery, collection, or sale of paleontological resources from land other than National Forest System lands.

Section 291.3(g) states that members of the general public do not obtain any rights or privileges from the Act or the final regulations and cannot sue the U.S. Government to enforce its provisions.

Section 291.3—Response to Comments

Comment: Reconnaissance collection and exemption from regulation.
One respondent expressed the view that reconnaissance collection, which was recommended by that respondent for definition elsewhere in the regulations, be listed as exempted from regulation.

Response:
Reconnaissance collection as proposed and defined elsewhere by the respondent is considered research collection. Collection of paleontological resources for research purposes requires a permit and is not exempt from these regulations.

Comment: Reference to collecting a rock, mineral, or fossil should use the plural form.
Two respondents expressed the view that the phrase “collecting of a rock, mineral, or invertebrate or plant fossil” should be changed to “collecting of rocks, minerals, or invertebrate or plant fossils”. One respondent suggested that the word “invertebrate” in the cited passage should be changed to non-vertebrate to clarify the range of fossils that the passage references.

Response:
The language in the Exceptions section of the regulations that references rock, mineral, or invertebrate or plant fossil restates the language of the Savings Provisions section of the Act, and would not be appropriate to modify. This applies to both comments by respondents.

Comment: Reference rocks and minerals separate from invertebrate and plant fossils.
Two respondents expressed the view that reference to rocks and minerals in the context of exceptions should be separate from invertebrate and plant fossils, in order to clarify that rocks and minerals are not included in the regulations, whereas casual collecting of invertebrate and plant fossils does not require a permit.

Response:
The language in the Exceptions section of the regulations that references rock, mineral, or invertebrate or plant fossil restates the language of the Savings Provisions section of the Act, and would not be appropriate to modify. The referenced passage collectively refers to rocks and minerals, which are not paleontological resources and, therefore, not subject to the Act or the regulations. The referenced passage also refers to those invertebrate and plant fossils that are not subject to the Act or these regulations because they are already regulated under another authority listed previously in the Savings Provisions and Exceptions sections. An example is petrified wood, which is regulated under the Mineral Materials Act even though it is a plant fossil.

Comment: Exception for non-profit and educational organizations.
One respondent suggested that non-profit organizations, informal research organizations, and educational organizations which have primary organizational goals of education and exploration of the natural world be exempted from the regulations.

Response:
The Act and the regulations do not provide for exclusion of selected groups or classes of individuals from compliance with the requirements as established in the Act and regulations.

Comment: Federal protection for private paleontological resources in connected actions.
One respondent expressed the view that protection of paleontological resources under the

regulations be expanded to include fossils on private lands in connected actions wherein projects encompassing the private lands receive Federal funding.

Response:
The issue of protections afforded to fossils on private lands in the context of federally funded connected actions is beyond the scope of these regulations. The requirements of the Act and these regulations pertain only to paleontological resources that are present on National Forest System lands controlled or administered by the Secretary of Agriculture.

Section 291.4 Preservation of Existing Authorities

Section 291.4 is based on 16 U.S.C. 470aaa-10(5). This section preserves the Forest Service's existing legal and regulatory authorities for managing and protecting paleontological resources in addition to protecting such resources under the Act or these final regulations.

Section 291.5 Definitions

Section 291.5 contains the definitions and terms as defined in the Act or used in these final regulations. This section includes six terms defined by 16 U.S.C. 470aaa:
Casual collecting, Federal land,

Indian land, paleontological resource,

Secretary,
and
State.
In addition, this section defines the terms
common invertebrate and plant paleontological resources, reasonable amount,
and
negligible disturbance.
16 U.S.C. 470aaa required the Secretary to define those terms in the implementing regulations. Lastly, this section defines terms used in the final regulations that may not be broadly understood or that may be defined differently elsewhere, in order to clarify their meaning for these final regulations.

1. The term
Act
means Title VI, Subtitle D of the Omnibus Public Land Management Act on Paleontological Resources Preservation (16 U.S.C. 470aaa through 470aaa-11).

2. The term
associated records
delineates the types of information that are required by 16 U.S.C. 470aaa-4 to be deposited in an approved repository.

3. The term
Authorized Officer
means the person or persons to whom authority has been delegated by the Secretary to take action under the Act.

4. The term
casual collecting
restates the definition contained in 16 U.S.C. 470aaa. To be considered
casual collecting,
the activity means all of the following: Collecting 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 and other resources. The Department considers that in establishing the term “casual collection” rather than “amateur collection” or “hobby collection” or “recreational collection”, the Act intended that casual collection reflect the commonplace meaning of “casual”. The commonplace definition of casual includes the elements “happening by chance; not planned or expected”, “done without much thought, effort, or concern”, and “occurring without regularity” (“casual” Merriam-Webster.com. 2014.
http://www.merriam-webster.com/dictionary/casual
(4 March 2014)). Consequently, the Department considers that casual collecting would generally be happenstance without intentional planning or preparation. Development of criteria for reasonable amount and negligible disturbance reflects, in part, the view of casual collecting as an activity that generally occurs by chance without planning or preparation. Further, the Act has established that an individual engaging in casual collecting activity in accordance with applicable conditions, in an area which has not been closed to casual collection, does not require a permit or other approval from the Department. Consequently, it is clear that the lack of Department decision space concerning such casual collection performed by an individual reflects that the Act intended that reasonable amount and negligible disturbance criteria established for casual collecting would be below levels that would otherwise require an evaluation under the National Environmental Policy Act (NEPA). Collection of amounts and/or land disturbance at levels that would require a NEPA evaluation would require a permit.

5. The term
collection,
as used in §§ 291.21 through 291.26 of these final regulations, means paleontological resources and any associated records resulting from excavation or removal from National Forest System lands under a permit.

6. The term
common invertebrate and plant paleontological resources
clarifies the types of paleontological resources that may be casually collected in accordance with the Act and these final regulations. This final definition incorporates the plain meaning of common, which means plentiful and not rare or unique. The final definition also incorporates a geographical factor of wide-spread distribution, which means that the resource is distributed over a relatively large geographical area. This final definition also clarifies that not all invertebrate and plant paleontological resources are common; some are not common because of their context or other characteristics and, therefore, are not eligible for casual collection. The determination of whether invertebrate and plant fossils are common or not common will be made by the Authorized Officer using scientific principles and methods in accordance with § 291.9(c).

7. The term
consumptive analysis
means the alteration, removal, or destruction of a paleontological specimen, or parts thereof, from a collection for scientific research.

8. The terms
curatorial services
and
curation
specifies the minimal professional museum and archival standards employed in the long-term management and preservation of a collection.

9. The term
Federal land
restates the definition contained in 16 U.S.C. 470aaa, and means land controlled by the Secretary except for Indian land as defined in 16 U.S.C. 470aaa.

10. The term
fossil
means any remains, traces, or imprints of organisms that have been fossilized or preserved in or on the Earth's crust. In informal usage, the term
fossil
tends to be used interchangeably with the term
paleontological resource.
However, under 16 U.S.C. 470aaa and these final regulations, a
fossil
may not necessarily be a
paleontological resource.
Remains, traces, or imprints of organisms (that is,
fossils
) are only considered
paleontological resources
under the Act and these final regulations if they are: (1) Fossilized, (2) of paleontological interest, and (3) provide information about the history of life on earth. Therefore, paleontological resources are fossils that have paleontological interest and provide information about the history of life on earth. An example of a fossil that may not be a paleontological resource because it lacks paleontological interest and provides negligible information about the history of life on earth would be an isolated, unidentifiable fragment of an otherwise common invertebrate fossil that was eroded from its native geologic occurrence and subsequently found in a stream bed far from its point of origin.

11. The term
fossilized
as used in the definition of
paleontological resources
means preserved by natural processes, such as burial in accumulated sediments, preservation in ice or amber, replacement by minerals, or alteration by chemical processes such as permineralization whereby minerals are deposited in the pore spaces of the hard parts of an organism's remains. This definition is adapted from the definition

of fossilization in the American Geological Institute's Glossary of Geology (Fifth Edition, 2005, ISBN 0-922152-76-4).

12. The term
Indian land
restates the definition contained in 16 U.S.C. 470aaa.

13. The term
negligible disturbance
as used in the definition of
casual collecting
clarifies that casual collection of common invertebrate and plant fossils may only result in little or no change to the land surface and have minimal or no effect on other resources such as cultural resources and protected or endangered species. Disturbance caused by powered and/or large non-powered hand tools would exceed the “negligible” threshold and would no longer be casual collection.

14. The term
non-commercial personal use
as used in the definition of
casual collecting
clarifies the types of use allowed under casual collection, and means uses other than for purchase, sale, financial gain, or research. Research, in the context of these regulations, is considered to be a structured activity undertaken by qualified individuals with the intent to obtain and disseminate information via publication in a peer-reviewed professional scientific journal or equivalent venue, which increases the body of knowledge available to a scientific community. Common invertebrate and plant paleontological resources collected for research purposes is not personal use and would need to be authorized under a permit in accordance with §§ 291.13 through 291.20. Exchange of common invertebrate and plant paleontological resources among casual collectors would be permissible as long as such resources were collected in accordance with the Act and the final regulations.

15. The term
non-powered hand tools
as used in the definition of
casual collecting
clarifies the types of tools that can be used for the casual collecting of common invertebrate and plant paleontological resources, and means small tools that can be readily carried by hand, such as geologic hammers, trowels, or sieves, but not large tools such as full sized-shovels or pick axes. Larger tools are more likely to create disturbance that is greater than “negligible.” The tools must not be powered by a motor, engine, or other power source.

16. The final definition of the terms
paleontological locality, location,
and
site
means a geographic area where a paleontological resource is found. Localities, locations, and sites may be as small as a single point on the ground or as large as the area of an outcrop of a formation in which paleontological resources are found. The term
paleontological site
is used interchangeably with
paleontological locality
or
location. Site
as used in the Act and these regulations does not mean an “archaeological site” as used in the Archaeological Resources Protection Act and its regulations.

17. The term
paleontological resource
restates the definition contained in 16 U.S.C. 470aaa. All remains, traces, or imprints of organisms are
paleontological resources
when they are (1) fossilized, (2) of paleontological interest, and (3) provide information about the history of life on earth. The term
paleontological resources
as used in the Act and these final regulations would not include any materials associated with an archaeological resource as defined in the Archaeological Resources Protection Act or any cultural items as defined in the Native American Graves Protection and Repatriation Act.

18. The term
reasonable amount
as used in the definition of
casual collecting
quantifies the maximum amount of common invertebrate and plant paleontological resources that could be removed from National Forest System lands. A person may remove up to 100 pounds in weight per calendar year, not to exceed 25 pounds per day. Development of this reasonable amount criterion reflects, in part, the view of casual collecting as an activity that generally occurs by chance without planning or preparation.

19. The term
repository
identifies the types of facilities into which collected paleontological resources would be deposited as required by 16 U.S.C. 470aaa-4.

20. The term
repository agreement
means a formal written agreement between the Authorized Officer and an approved repository official containing the terms, conditions, and standards by which the repository would agree to provide curatorial services for collections.

21. The term
repository official
identifies any officer, employee, or agent who is authorized by the repository to take certain actions on behalf of the repository, including the acceptance of collections and providing long-term curatorial services for collections.

22. The term
Secretary
as used in these final regulations and defined in 16 U.S.C. 470aaa means the Secretary of Agriculture.

23. The term
State
restates the definition contained in 16 U.S.C. 470aaa.

Section 291.5—Response to Comments

Comment: Include reference to mitigation actions in certain definitions.
One respondent expressed the view that some definitions could benefit from including some aspect of paleontological resource mitigation actions.

Response:
The respondent does not specify which definitions could benefit from including discussion of mitigation actions pertaining to paleontological resources. Mitigation is not considered a personal use, and collection of paleontological resources related to mitigation would require a permit. The activity of paleontological resource mitigation would commonly, but not always, occur in the context of permitted surface disturbing activities and appropriately considered during the NEPA impact assessment process. Accordingly, reference to mitigation is largely beyond the scope of these regulations.

Comment: Associated records.
One respondent suggested that associated records be defined only as permits and repository agreements, and that documents pertaining to locations, collecting events, collectors, and so forth should not be considered associated records.

Response:
The Department considers that documents pertaining to locations, collecting events, collectors, and so forth, as listed in the regulations comprise associated records and would be regarded as such by any professionally managed repository institution.

Comment: Authorized Officer.
Respondents expressed the view that, in order to make informed decisions as referenced elsewhere in the regulations, the definition of Authorized Officer should reference qualifications and/or expertise in paleontology, including specific training and knowledge of scientific procedures and standards for collecting fossil resources, research design and scientific research, proper curation and storage methods and museum standards, and experience in properly disseminating scientific and educational information for the public benefit. One respondent suggested that requiring an Authorized Officer to consult with an Agency paleontologist would be cumbersome, resource intensive, and difficult to sustain. One respondent questioned whether or not a permit holder or permit issuer could be considered an Authorized Officer.

Response:
An Authorized Officer in the Forest Service is delegated the authority to make certain decisions regarding land use in many subject areas

in which a single individual would not be expected to have professional expertise. An Authorized Officer frequently consults with subject matter experts prior to exercising such decision-making authority. In this respect, decisions by an Authorized Officer relating to paleontological issues are no different from such decisions made regarding other specialized disciplines in the Agency. The process of an Authorized Officer consulting with subject matter experts is not cumbersome, but rather is standard procedure in the decision-making process. A permit authorizes a permit holder to perform certain activities as specified in the permit. However, a permit holder would not be considered an Authorized Officer, and such designation is restricted to Forest Service employees.

Comment: Definition of casual collection is too restrictive.
Respondents expressed the view that limitations on amounts collected and the use of non-powered hand tools for casual collection are too restrictive and go beyond the intent of the Act, which is to protect paleontological resources from exploitation for commercial gain.

Response:
The Act stipulates that casual collecting is subject to conditions including collection of reasonable amounts, collection from the land surface or by using non-powered hand tools, and collection resulting in negligible surface disturbance. The regulations are consistent with these stipulations of the Act. Protection of paleontological resources from commercial exploitation is only one of many purposes of the Act, which also stipulates that the Secretary of Agriculture manage and protect such resources using scientific principles and expertise, and to develop plans for the inventory, monitoring, and scientific and educational use of such resources.

Comment: Casual collection should include reconnaissance collection.
Respondents suggested that reconnaissance collection for research be included in the definition of casual collection.

Response:
Reconnaissance collection is considered research, does not constitute personal use, and requires a permit.

Comment: Collection of common plant fossils with non-powered hand tools should not require a permit.
One respondent expressed the view that the collection of any common plant fossils with non-powered hand tools should not require a permit.

Response:
Collection of common plant fossils using non-powered hand tools could be considered casual collecting and not require a permit, providing that all other conditions pertaining to reasonable amount and negligible disturbance as established for casual collecting are met. A permit would be required if such collection is outside the scope of conditions established for casual collecting.

Comment: Shark and fish teeth should be included in the definition of casual collection.
One respondent suggested that the collection of shark and/or fish teeth from the surface of natural erosional exposures should be considered casual collection, unless the subject specimens are rare.

Response:
The Act and the regulations stipulate that casual collecting is restricted to common invertebrate and plant fossils. Shark and fish teeth are vertebrate fossils, and are thereby excluded from casual collection.

Comment: Collection during educational field trip.
One respondent suggested that clarification should be provided concerning whether collection during an educational field trip led by a school, university, or museum would be considered casual collection or would require a permit.

Response:
A permit under these regulations would not be required for casual collecting by individual participants in an educational field trip, provided that collections by individuals are for personal use, do not exceed individual reasonable amount limits and the collateral impacts to associated resources that may be caused by the group do not exceed negligible disturbance criteria established for casual collection. However, the nature of the trip, including number of participants and potential collateral impacts to associated resources, could trigger the need for a special use permit pertaining to group uses that is unrelated to paleontological collection. Questions pertaining to group uses unrelated to paleontological collection should be directed to special uses staff at the local Forest Service Field Office in which a field trip is planned.

Comment: Casual collection may promote illegal collection.
One respondent suggested that allowing casual collection would facilitate illegal collection for resale under the pretext of casual collection, resulting in the loss of collection locations.

Response:
The Act establishes that casual collecting is an activity that may be performed on National Forest System lands, providing that established conditions are met. The Department would rely largely on the ethics of an informed and law-abiding collecting public, who are aware of conditions for casual collecting as established in regulation, and elect to legally collect by adhering to those conditions. Documented intentional noncompliance with the conditions established for casual collection would subject the collector to enforcement action.

Comment: Regulation of casual collection is impossible.
One respondent expressed the view that monitoring and regulation of casual collection by Department personnel in the field would be impossible.

Response:
The Act does not require the direct monitoring or regulation of casual collecting. Because the Act and the regulations establish that casual collecting does not require a permit or other advance approval, the Department agrees that it would be nearly impossible to monitor or track every individual occurrence of casual collecting. In this respect, casual collecting is no different from other activities that occur on National Forest System lands that do not require a permit. The Department would rely largely on the ethics of an informed and law-abiding collecting public, who are aware of conditions for casual collecting as established in regulation, and elect to legally collect by adhering to those conditions. Moreover, the effects of casual collecting may be indirectly monitored or tracked by assessing cumulative impacts in known areas commonly used for casual collection.

Comment: Common fossils of limited interest to amateur collectors.
One respondent suggested that amateur fossil collectors, like many amateur mineral collectors, would not be interested in casual collection limited to common and abundant invertebrate and plant fossils because such specimens are too commonplace. Interest would reside largely in rare or uncommon varieties, which are excluded from casual collection under these regulations.

Response:
The Act and the regulations establish that casual collecting only pertains to common invertebrate and plant paleontological resources. Intentional collection of rare or uncommon specimens would require a permit.

Comment: Definition of common invertebrate and plant paleontological resources should be clarified.
Respondents suggested that the definition of common invertebrate and plant paleontological resources requires more detail and clarification in order to avoid confusing collectors. Respondents also expressed the view that common invertebrate and plant fossils be explicitly excluded from the definition of paleontological resources and thereby excluded from regulation.

Response:
The definition of paleontological resources in the Act and the regulations includes common invertebrate and plant fossils, and the Act explicitly references common invertebrate and plant paleontological resources in the context of casual collecting. Criteria for whether a paleontological resource would be considered common could reflect a variety of factors including, but not limited to, context of occurrence in a particular location, relative abundance, and extent of distribution. It is not practical to address in regulations each factor that could be pertinent to determination of what constitutes common with respect to common invertebrate and plant paleontological resources.

Comment: Include criterion of formal description in definition of common invertebrate and plant paleontological resources.
Two respondents suggested that a fossil species be considered common if it has been formally described in a scientific publication and type specimens have been deposited in an appropriate repository; conversely, a fossil species would only be considered rare if it has not been described or is awaiting description in scientific publication. One respondent suggested that if ten or more specimens of a species awaiting formal description have been deposited in a repository, that species may be considered common.

Response:
Criteria for whether or not a paleontological resource would be considered common or rare could reflect a variety of factors including, but not limited to, context of occurrence in a particular location, relative abundance, and extent of distribution. The proposed criterion of formal taxonomic description has no bearing on whether a particular occurrence of a specimen might be considered common. Many formally described species may be considered rare, and conversely, many undescribed species could be considered common. Moreover, the process as described by the respondents is cumbersome and would be nearly impossible to implement, particularly with regard to tracking number of specimens referred to a type. This would be especially true for any described species whose types did not originate from National Forest System lands. The Department will not incorporate a criterion of formal species description in the definition of common.

Comment: Clarification regarding paleontological resources that are considered to be rare.
Respondents suggested that additional information should be provided concerning which paleontological resources are considered to be rare, and expressed the view that a list be provided concerning which paleontological resources are considered rare and which are considered common. One respondent expressed the view that the apparent rarity of certain fossils often reflects the availability of access to collecting areas, rather than actual rarity of specimens. Respondents suggested that without expert knowledge, it would be difficult for amateur collectors to determine if a specimen is rare or common. One respondent expressed the view that clarification should be provided regarding whether or not a collector would be considered in jeopardy under the law if a rare specimen was collected inadvertently. Respondents also expressed the view that an Authorized Officer should not determine whether or not a paleontological resource is rare.

Response:
Criteria for whether or not a paleontological resource would be considered common or rare could reflect a variety of factors including, but not limited to, context of occurrence in a particular location, relative abundance, and extent of distribution. Consequently, an assessment of commonness or rarity would not necessarily apply universally to a particular taxon, and is therefore not appropriate for determination in the form of a taxonomic list. It is not practical to address in regulations each factor that could be pertinent to determination of what constitutes common or rare with respect to common invertebrate and plant paleontological resources. A collector would not necessarily be placed in jeopardy under the law for inadvertent collection of a rare specimen during casual collection. The Department could consider the intent and degree of non-compliance regarding inadvertent collection of rare specimens regarding potential enforcement. The regulations establish a procedure wherein an Authorized Officer would consider a recommendation by a subject matter expert in making a determination of whether an invertebrate or plant paleontological resource is common or rare.

Comment: Associations of partial specimens should be addressed in definition of common invertebrate and plant paleontological resources.
One respondent suggested that some isolated parts and/or incomplete specimens of certain organisms may be common, but associated parts and/or complete specimens of the same organism may be rare. The respondent questioned whether such species would be considered common or rare under the regulations.

Response:
Criteria for whether or not a paleontological resource would be considered common would include context of occurrence in a particular location and could include the nature of preservation, such as completeness and/or associations of elements of a specimen. Consequently, an assessment of common could largely reflect the context of a specimen, and not necessarily apply universally to a particular taxon. For example, concentrations of disarticulated columnals of a particular crinoid species might be considered common, whereas a complete and fully articulated specimen of the same species would generally be considered rare. Consequently, it is not practical to address in regulations each factor that could be pertinent to determination of what constitutes common with respect to common invertebrate and plant paleontological resources.

Comment: Criterion of widespread distribution should be clarified.
Respondents suggested that clarification should be provided concerning what constitutes widespread distribution. One respondent suggested that most species are defined on the basis of geologic horizons and localities, and therefore can only be considered abundant in local areas, rather than widespread areas.

Response:
The characteristic of widespread distribution is considered dependent on factors including, but not limited to, the paleoecology of the organisms in question and the distribution of rock outcrops in which they may occur. It is not practical to address in regulations each factor that could be pertinent to determination of what constitutes widespread distribution with respect to common invertebrate and plant paleontological resources. In general, a species that is present in rocks distributed through the greater extent of a given Forest Service administrative Region could be considered to have widespread distribution in that Region. The respondent's suggestion that most species can only be considered abundant in local areas and not of widespread distribution is conjectural and not substantiated. That assertion is contrary to the longstanding paleontological and stratigraphic concept of index fossils, whose geologic utility is predicated on their having the key attributes of easy identification, abundance, narrow temporal range, and widespread geographic distribution.

Comment: Intermingling of common and rare species.
Respondents suggested

that in many cases common and rare species are intermingled, and questioned whether locations in which such intermingling occur would be closed to casual collection. One respondent suggested that amateur collectors often donate rare specimens found in such circumstances to museums, and that closure of such locations to casual collection would result in fewer rare species being collected and described. One respondent suggested that if locations containing intermingled common and rare species are closed to collection, amateur collectors would not disclose finding of rare species in order to avoid closure of such areas. One respondent suggested that if such areas were closed, opportunities for children to casually collect would be lost.

Response:
The respondents' suggestion that common and rare species are intermingled in many cases is conjectural and not substantiated. In cases where intermingling is demonstrated, the Authorized Officer has the ability to close an area to casual collection if it is considered that rare paleontological resources may be placed at risk by inadvertent casual collection. The potential for casual collectors to inadvertently collect rare specimens and later donate them to repositories could be considered in area closure decisions. The existence of alternative opportunities for children to casually collect could also be considered in area closure decisions. The Department expects that ethical casual collectors would not withhold information concerning the occurrence of rare specimens for the purpose of avoiding potential area closures.

Comment: Discovery of a new species.
Two respondents expressed the view that the regulations should include procedures for amateur collectors to follow if they collect specimens that may be considered to represent new species. The respondents suggested specific procedures including collection and packaging protocols, location documentation, contacting professional paleontologists, and other related actions.

Response:
The Department does not consider that discovery of new species would be a commonplace occurrence in the context of casual collection. Protocols related to the documentation and description of new species are the subjects of an extensive body of scientific taxonomic literature, and the formal establishment of such protocols in the context of casual collecting is beyond the scope of the regulations. Specimens that could represent new species that were inadvertently collected during casual collection should be returned to the Forest Service for appropriate disposition.

Comment: Credit to amateur collectors of new species.
Two respondents suggested that the regulations require that amateur collectors who find new species be explicitly acknowledged in professional publications in which such species are formally described. One respondent suggested that a $500.00 penalty be assessed to authors of such papers who fail to acknowledge a casual collector who provided the specimens upon which a new species is described.

Response:
The Department does not consider that discovery of new species would be a commonplace occurrence in the context of casual collection. The issue of providing credit or acknowledgment of a collector's contribution to published research is an ethical matter beyond the scope of the regulations.

Comment: Consumptive analysis.
One respondent suggested that the definition of consumptive analysis is too broad, and should be limited to procedures that would destroy an entire specimen or a majority of a specimen.

Response:
Consumptive analysis is commonly understood to mean any procedure that would entail irrevocable alteration (that is, consumption) of a part of a specimen for the purpose of acquiring information that cannot be obtained any other way; for example, removing and destroying a plug of bone to determine chemical composition or microscopic structure. Important and/or unique scientific information may be represented in a small portion of a specimen, independent of the entire specimen or majority of a specimen. Consequently, it would not be appropriate to define consumptive analysis only in the context of destruction of a complete specimen, or the majority of a specimen.

Comment: Curatorial services and curation.
One respondent suggested that reference to purposes for lending a collection be clarified by listing exhibition as an educational purpose. One respondent suggested that the definition of curatorial service and curation reference the intellectual services that trained scientists provide to collections, including management decisions that maximize scientific and educational value of the collections.

Response:
The Department considers that exhibition of specimens is an educational purpose, and does not require separate listing. The Department considers that “intellectual services” provided by trained repository staff scientists would be the basis for professional collections management practices and decisions employed by such staff, and does not require separate listing.

Comment: Federal land.
One respondent expressed the view that the definition of Federal land as discussed in the Preamble reads awkwardly and should be rephrased.

Response:
The Department agrees with the respondent's view and has added the word “and” to read: “9. The term Federal land restates the definition contained in 16 U.S.C. 470aaa of the Act, and means land controlled by the Secretary except for Indian land as defined in 16 U.S.C. 470aaa.”

Comment: Definition of fossil should include temporal component.
Respondents expressed the view that the definition of fossil should include a component of geologic time; specifically that organic remains and/or traces that post-date the Pleistocene epoch (post-glacial time) not be considered as fossils. One respondent suggested that organic remains and/or traces that occur in archeological time frames and/or modern sediment deposits originating from catastrophic events such as floods or mud entrapment not be considered as fossils.

Response:
The existing definition of fossil is one that is commonly used in the scientific community and largely conforms to the definition of fossil as employed by the American Geological Institute (AGI). In addition, the existing definition of fossil is consistent with the definition of paleontological resource as established by the Act and the regulations, which does not include a temporal criterion. Incorporation of an end-Pleistocene limit to determine whether or not a particular specimen is a fossil would be arbitrary and not based in science. Similarly, reference to occurrence in an archeological time frame to determine whether or not a specimen is a fossil would also be arbitrary and not based in science. Organic remains and traces in modern sediments, originating from catastrophic events that occurred not more than several decades before the present, would generally not be considered fossils.

Comment: Definition of fossil should be clarified regarding organic traces.
One respondent suggested that the definition of fossil be clarified regarding whether organic traces (trace fossils) are considered to be fossils or sedimentary structures.

Response:
The definition of fossil clearly states that “fossil means any fossilized remains, traces, or imprints of organisms . . .” Consequently, trace

fossils are considered fossils as per the definition.

Comment: Definition of “fossil” as discussed in preamble overuses the word “paleontological”.
One respondent expressed the view that the word “paleontological” is overused in the discussion of the definition of “fossil” in the preamble. The respondent suggested that the discussion would be improved by substituting the word “scientific” for “paleontological” with reference to the term “paleontological interest”.

Response:
The discussion of “fossil” in the preamble clarifies the distinction between a fossil and a paleontological resource, and in so doing restates the definition of paleontological resource as established in the Act and the regulations. That definition uses the term paleontological interest, rather than scientific interest. Because the referenced passage restates an established definition, it will not be changed.

Comment: Definition of fossilized is too broad.
One respondent suggested that the definition of fossilized is too broad, and that the definition should include a component of geologic age or other time constraint, or be deleted entirely.

Response:
The existing definition of fossilized refers to natural processes that would operate to transform organic remains, traces, or imprints into fossils. The definition is focused on processes rather than time, and processes of fossilization operate over a wide range of time scales, often of unknown extent, that reflect the complex interactions of diverse physical and chemical environmental variables. The existing definition of fossilized is consistent with definition of the related term fossilization as employed by the American Geological Institute (AGI), which likewise does not include a time constraint.

Comment: Indian land.
One respondent expressed the view that the regulations criminalize activities of young Native Americans by not allowing them to collect fossils for resale on their own lands.

Response:
The Act and the regulations explicitly state that Indian lands are not subject to the Act or the regulations. Fossil collecting activities by Native Americans on Indian lands would be under the jurisdiction of Tribal authorities.

Comment: The definition of negligible disturbance is ambiguous.
Respondents expressed the view that the definition of negligible disturbance is vague, arbitrary, subject to individual interpretation, and should be clarified. Respondents suggested that the definition of negligible disturbance include measurable limits expressed in volumes, amounts, and/or areas such as square meters, square yards, and/or acres. One respondent suggested a maximum disturbance limit of one square meter. One respondent suggested that criteria for excessive disturbance be defined and used in place of the negligible disturbance criterion.

Response:
The amount of physical disturbance created during casual collection is not the only criterion that would determine whether overall disturbance is negligible or not. Other factors that would relate to overall disturbance could include, but would not be limited to, location specific factors such as proximity to threatened or endangered species and/or other sensitive resources and visual/aesthetic considerations. It is not practical to address in regulations the entire spectrum of factors that could be pertinent to determination of what constitutes negligible disturbance related to casual collection at any particular location. In general, surface collection by hand would be inherently less likely to exceed negligible disturbance than would be collection involving removal of materials using hand tools. The Act requires that negligible disturbance be determined by the Secretary, rather than excessive disturbance. Moreover, for the same reasons as presented above, it would be no more practical to establish specific criteria for excessive disturbance in the regulations than it would be to establish such criteria for negligible disturbance.

Comment: Negligible disturbance and non-powered hand tools.
Two respondents suggested that negligible disturbance be defined as any disturbance resulting from the use of non-powered hand tools in casual collection. One respondent suggested that allowing only non-powered hand tools would place practical limits on amounts of material that could be removed without difficulty and would thus be self-regulating. One respondent suggested that employing the criterion of non-powered hand tools would be easily identifiable in the field and would thereby facilitate enforcement of the negligible disturbance criterion.

Response:
In separately specifying conditions of negligible disturbance and use of non-powered hand tools in the context of casual collecting, the Act recognizes that these criteria are distinct. The use of non-powered hand tools can result in disturbance of large surface areas to an extent that would be considered greater than negligible by any other objective criterion. Consequently, it would not be appropriate to define negligible disturbance as any disturbance that was created using non-powered hand tools. Moreover, the amount of physical disturbance created during casual collection is not the only criterion that would determine whether overall disturbance is negligible or not. Other factors that would relate to overall disturbance could include, but would not be limited to, location specific factors such as proximity to threatened or endangered species and/or other sensitive resources and visual/aesthetic considerations.

Comment: Authorized Officer should not determine negligible disturbance.
One respondent suggested that an Authorized Officer should not have the authority to determine whether disturbance is negligible or not, because such decisions may be subjective and/or biased.

Response:
The Department considers that in many circumstances, what constitutes negligible disturbance would depend on the location of the activity and could reflect a number of specific factors that are unrelated to paleontological resources. Authorized Officers in the Forest Service have been delegated the authority to make certain land use decisions in the administrative units under their jurisdiction. For any given location, the Authorized Officer is appropriately positioned to decide, based on recommendations of local staff specialists, whether or not a particular level of surface disturbance would be considered negligible or not.

Comment: Disturbance related to fossil collection is negligible compared to other uses.
Respondents expressed the view that casual collection using only non-powered hand tools should not be subject to a negligible disturbance criterion, since surface disturbance as a consequence of such collection is negligible compared to surface disturbance resulting from other activities allowed on National Forest System lands such as minerals extraction, logging, and grazing.

Response:
The Act requires that the regulations define the term “negligible disturbance” in the context of casual collection. Contrary to casual collecting, other surface disturbing activities as specified by the respondents require authorization from the Forest Service. Such authorizations generally require a formal NEPA assessment in which potential impacts associated with the activity are disclosed and potential mitigation of such impacts may be proposed. Because casual collecting does not require an authorization or other Agency decision, conditions

established for casual collection must ensure that surface disturbance related to such collection is negligible and does not exceed any threshold that would otherwise trigger the need for a NEPA assessment of the activity.

Comment: Negligible disturbance criterion impractical for serious amateur collectors.
One respondent expressed the view that collection of good fossil specimens by serious amateur collectors often requires freshly exposing large areas of bedrock, which would not be consistent with a requirement for little or no change to the land surface. The respondent also suggested that the exclusion of large hand tools and/or powered tools would not allow exposure of fresh bedrock which is necessary for such collection.

Response:
Land disturbance to the extent described by the respondent would generally be considered greater than negligible, and would require a permit. Collection resulting in disturbance greater than negligible and/or by using hand tools larger than allowed for casual collection would require a permit.

Comment: Cumulative surface disturbance in large common collecting areas should be addressed.
Respondents expressed the view that clarification should be provided concerning how criteria for negligible disturbance would be applied in common collection locations subject to casual collection by large numbers of collectors. Respondents suggested that in such common collecting locations, areas disturbed by individual collectors may coalesce, and areas disturbed by individual collectors may not be able to be differentiated from preexisting disturbed areas.

Response:
Each individual engaging in casual collecting in a common collection area would be expected to adhere to the negligible disturbance criterion. Common collecting areas in which cumulative surface disturbance levels exceed negligible could be subject to NEPA assessment of surface impacts. Such areas could be subject to closure to casual collecting and/or restricted to collecting under permit.

Comment: Reclamation of disturbed areas.
One respondent expressed the view that a collector should be allowed to exceed the negligible disturbance criterion provided that the disturbed area is reclaimed by the collector before leaving. Two respondents suggested adding a requirement that all areas disturbed by collection should be filled-in and graded. One respondent suggested that small areas of disturbance should not require reclamation because they will be restored by natural processes over time.

Response:
Collection resulting in disturbance that exceeds a negligible level would require a permit. The need for reclamation of areas in which disturbance exceeds negligible levels would be addressed in a permit. The criterion of negligible disturbance in casual collection implies that disturbance would be of such limited extent that reclamation would not be necessary.

Comment: Negligible disturbance and consecutive collecting trips.
One respondent suggested that that clarification should be provided concerning how negligible disturbance criteria would be applied in the event of consecutive collecting trips made to the same area by an individual collector.

Response:
The criterion of negligible disturbance would not be assessed cumulatively, but rather would be applied to disturbance resulting from each collecting event performed by an individual.

Comment: Definition of non-commercial personal use is overly restrictive.
Respondents expressed the view that the definition of non-commercial personal use is too restrictive, particularly with reference to exclusion of use for research. Respondents suggested that excluding research would prevent casual collectors from developing personal expertise by researching their finds, and that research, publication, and donation to museums of specimens that were collected by knowledgeable amateur collectors would be made illegal. One respondent suggested that clarification should be provided regarding whether or not it would be a violation if casually collected specimens were later donated to an academic institution for research. Respondents suggested that the term research be removed from the definition, and one respondent expressed the view that it is ironic for research to be considered a commercial use.

Response:
The definition of non-commercial personal use has been modified to further characterize research, which is not considered to be a personal use. Research, in the context of these regulations, is considered to be a structured activity undertaken by qualified individuals with the intent to obtain and disseminate information via publication in a peer-reviewed professional scientific journal or equivalent venue, which increases the body of knowledge available to a scientific community. In accordance with this characterization of research, casual collectors seeking to develop personal expertise through study of collected specimens would not be considered to be engaging in research. Specimens that were casually collected with the intent of personal use may be donated to a repository at a later time; however, collection with the intent to donate to a repository would not constitute casual collection and would require a permit. The Department does not expect this to be a commonplace scenario. The Department does not consider research to be a commercial use; however, research is likewise not considered to be a personal use and, therefore, requires a permit.

Comment: Include mitigation in definition of non-commercial personal use.
One respondent suggested that the definition of non-commercial personal use should specify that mitigation of damage or potential damage to paleontological resources be excluded from consideration as non-commercial personal uses.

Response:
Mitigation of damage or potential damage to paleontological resources generally occurs in the context of permitted projects on National Forest System lands. Permitted projects are frequently commercial in nature and associated paleontological resource mitigations are always managed as professional, rather than personal activities. Consequently, mitigation activities could not reasonably be construed as non-commercial personal use, and there is no need to specifically include discussion of mitigation in the definition of non-commercial personal use.

Comment: Definition of non-commercial personal use should not reference financial gain or research.
One respondent suggested that reference to financial gain and research should be removed from the definition of non-commercial personal use in order to be consistent with the discussion of casual collection in the context of outfitters and guides in the section “Proper Consideration of Small Entities”.

Response:
Reference by the respondent to the discussion of casual collection associated with outfitters and guides in the section “Proper Consideration of Small Entities” is presented out of context, and the definition of non-commercial personal use as proposed is consistent with the referenced discussion. The referenced discussion establishes that participants in an outfitter/guide operation that is not paleontological in nature may individually engage in casual collection as an incidental activity which is not related to the commercial purpose of the permitted outfitter/guide operation, and

that the regulations would not be expected to negatively impact a permitted small entity operation that is not paleontological in nature. Commercial use and/or financial gain from paleontological resources are not allowed in accordance with the Act and these regulations. Research, while not considered commercial, is also not considered a personal use.

Comment: The definition of non-powered hand tools is too restrictive.
Respondents expressed the view that the definition of non-powered hand tools is more restrictive than stipulated by the Act, which does not establish a limit on the size of non-powered hand tools. Respondents suggested that large non-powered hand tools, including but not limited to full-sized pick axes, sledge hammers, crow bars, pry bars, and shovels are necessary to remove unconsolidated overburden and expose fresh bedrock containing paleontological resources and to extract paleontological resources from hard sedimentary rocks. Respondents suggested that the definition should not focus on tool size, but rather should specify that tools be used that are appropriate to the circumstances of the collecting in order to minimize damage to specimens. Respondents expressed the view that use of hand tools that are too small and inappropriate for collecting conditions will result in loss or damage of paleontological specimens. One respondent expressed the view that hand tools should be defined as any tools that are not powered by a motor, engine, or other mechanical power source, and that tool size should not be included in the definition.

Response:
The Department considers that casual collecting would generally be happenstance without intentional planning or preparation, and that use of large hand tools requiring two-handed operation would be inconsistent with such activity and would entail a higher potential for greater than negligible land surface disturbance. Land disturbance to the extent described by respondents would generally be considered greater than negligible, and would require a permit. Collection resulting in disturbance greater than negligible and/or by using hand tools larger than allowed for casual collection would require a permit.

Comment: The definition of non-powered hand tools is arbitrary and vague.
Respondents have expressed the view that the definition of non-powered hand tools is arbitrary, vague, and will create confusion. Respondents suggest that non-powered hand tool of any particular type exist in a nearly continuous range of sizes, and suggested that clarification should be provided concerning where the upper size limit would be placed in such continuous series, or how it would be determined if a tool is too large.

Response:
Generally, a non-powered hand tool that requires use of both hands to wield effectively would be considered too large for use in casual collection. The Department considers that casual collecting would generally be happenstance without intentional planning or preparation, and that use of large hand tools requiring two-handed operation would be inconsistent with such activity and would entail a higher potential for land surface disturbance greater than negligible. Use of hand tools larger than allowed for casual collection could be authorized for collection under a permit.

Comment: Specification of certain tools.
Respondents expressed the view that clarification should be provided regarding whether or not use of chisels, pry bars, crow bars, Marsh picks, geo-picks, hoe-picks, and/or pick-axes would be allowed in casual collection.

Response:
The level of specificity requested by the respondents is not appropriate for regulation. Generally, a non-powered hand tool that requires use of both hands to wield effectively would be considered too large for use in casual collection.

Comment: Permit and use of large hand tools.
Respondents suggested the clarification should be provided regarding whether or not use of non-powered hand tools larger than allowed for casual collection would be authorized under a permit.

Response:
Use of hand tools larger than allowed for casual collection could be authorized for collection under a permit.

Comment: Restriction on use of large hand tools will stop casual collection.
One respondent expressed the view that limiting hand tool sizes will stop casual collecting activities. Another respondent suggested that limiting use of large shovels and pick-axes will criminalize collection by children and volunteer collectors.

Response:
The respondents' suggestions that restricting use of large tools in casual collecting would stop such activities and would criminalize collection by children and volunteers are speculative and not substantiated. Use of hand tools larger than allowed for casual collection could be authorized for collection under a permit.

Comment: Definition of non-powered hand tools should not reference negligible disturbance.
One respondent expressed the view that discussion of the definition of non-powered hand tools in the preamble should not reference negligible disturbance, because negligible disturbance should be based on the amount and nature of disturbance rather than the type of tool being used.

Response:
The actual definition of non-powered hand tools does not reference the negligible disturbance criterion. The preamble discussion of the definition of non-powered hand tools provides clarification that in developing the definition, the Department recognizes that larger tools have an inherent capacity to disturb larger areas to an extent greater than would be considered negligible.

Comment: Paleontological localities that contain more than one fossil assemblage.
One respondent suggested that clarification should be provided concerning the potential existence of successive geologic beds at any given locality, each of which may contain distinctly different fossil assemblages. The respondent questioned whether or not each distinct fossil assemblage would be considered separately in determining collection limits.

Response:
The reasonable amount limit established for casual collection is an absolute specified amount, and is not a “per locality” or “per bed” or “per fauna” limit. Amounts collected at different locations, from different beds, and/or representing distinct faunas would all contribute cumulatively to the established total reasonable amount annual limit.

Comment: Definition of paleontological resources does not recognize diversity of types of fossils.
Respondents expressed the view that there exist a wide variety of fossils and that the regulations unnecessarily consider all of them to be paleontological resources and subject to regulation. Respondents suggested that common invertebrate and plant fossils should be excluded from the definition of paleontological resources because they do not require the same level of protection as vertebrate fossils and cultural resources.

Response:
Paleontological resources are defined in the Act, and the regulations restate the definition established in the Act. The Department considers that the definition of paleontological resources in the Act and the regulations appropriately includes the diversity of fossil organisms and their remains, traces, and imprints. Common invertebrate and plant fossils are included in the definition of paleontological resources.

Comment: Paleontological resources do not need to be defined or regulated.

One respondent expressed the view that there is no need to define or regulate paleontological resources because there are other mechanisms in place to protect the few fossil sites that merit protection, such as designating them National Parks or Monuments.

Response:
Paleontological resources are defined in the Act, and the regulations restate the definition established in the Act. The Act stipulates that the Secretary of Agriculture shall manage and protect paleontological resources on National Forest System Lands using scientific principles and expertise, and these regulations establish procedures for such management. The Act and these regulations apply to all National Forest System lands.

Comment: Definition of paleontological resources does not address reproductions.
One respondent suggested that the definition of paleontological resources should explicitly exclude reproductions, such as casts made from actual specimens.

Response:
The definition of paleontological resources refers to fossilized remains, traces, or imprints of organisms. Casts and other reproductions are clearly not fossilized remains, traces, or imprints of organisms, and would not be considered paleontological resources under the existing definition, and do not require explicit exclusion by listing them.

Comment: Definition of paleontological resources is too broad and ambiguous.
One respondent expressed the view that the definition of paleontological resources is overly broad and ambiguous. The respondent suggested that the definition appears to have been modeled after the Archaeological Resources Protection Act (ARPA) which covers very different resources, and that the definition of paleontological resources and the regulations should better reflect those resource differences.

Response:
The definition of paleontological resources in the regulations restates the definition in the Act. The Department considers that the definition of paleontological resources in the Act and the regulations appropriately includes the diversity of fossil organisms and their remains, traces, and imprints, and is, therefore, neither overly broad nor ambiguous. The definition is consistent with common use of the terms “paleontological resources” and “fossil” within the scientific community. The respondent's reference to that definition being modeled after ARPA bears no relevance to the adequacy and/or appropriateness of the definition.

Comment: Reference to archeological resources should be clarified.
One respondent expressed the opinion that clarification should be provided to indicate that fossils found in association with archeological resources would otherwise be considered paleontological resources when found in a non-archeological context.

Response:
The definition of paleontological resources in the Act and in these regulations excludes fossils associated with archaeological resources. The Department does not consider it necessary to additionally state in the definition the converse case, that fossils not associated with archaeological resources would be considered paleontological resources.

Comment: Definition requested for “qualified paleontologist”.
One respondent suggested that a definition be provided for the term “qualified paleontologist”.

Response:
Qualifications are evaluated in the context of being commensurate with a particular task or project, and do not comprise a defined set of universally applicable criteria. The term “qualified paleontologist” has been removed from these regulations and, therefore, does not require definition in this final rule.

Comment: The definition of reasonable amount is overly restrictive.
Respondents expressed the view that the definition of reasonable amount is overly restrictive, arbitrary, and ambiguous. Respondents suggested that the definition does not recognize the variety of fossil types and their occurrences, and that many invertebrate fossils occur in countless numbers and would be lost by erosion if not collected. One respondent expressed the view that amount limits for the collection of common and abundant invertebrate and plant fossils are unnecessary, because most sites bearing such fossils are continually replenished by natural processes of erosion. One respondent suggested that reasonable amounts be eliminated because there are too many field variables to consider in establishing collection limits.

Response:
The Act requires that the regulations define the term reasonable amount in the context of casual collecting. In establishing a reasonable amount, the Department considered the adjective “casual” as used in the term “casual collecting”. The commonplace definition of casual includes the elements “happening by chance; not planned or expected”, “done without much thought, effort, or concern”, and “occurring without regularity” (“casual” Merriam-Webster.com. 2014.
http://www.merriam-webster.com/dictionary/casual
(4 March 2014)). The Department considers that in establishing the term “casual collection” rather than “amateur collection” or “hobby collection” or “recreational collection”, the Act intended that casual collection reflect the commonplace meaning of “casual”, and that such casual collecting would generally be happenstance without intentional planning or preparation. The preamble discussion of the definition of casual collection has been modified to include this clarification. Consistent with such unplanned collection, a reasonable amount would generally be smaller rather than larger, and would not reflect site-specific and complex factors such as rock types and other field variables. The Department has considered public comments on the proposed rule and has modified the reasonable amount definition to comprise a criterion of 100 pounds per person per calendar year, not to exceed 25 pounds per person per day. Collection of amounts greater than the reasonable amount established for casual collection would require a permit.

Comment: Reasonable amount limits will discourage recreational fossil collection.
One respondent expressed the view that the specified reasonable amounts could be exceeded in minutes, and would consequently discourage recreational and amateur collectors from making long distance trips to collect. One respondent suggested that limits on reasonable amounts would reduce the opportunity to use casually collected fossils in public education to stimulate interest in science among children. Respondents expressed the view that the specified limits on reasonable amount would be easy to violate unintentionally, and would criminalize casual collecting.

Response:
Collection for recreational and/or educational purposes of amounts greater than the reasonable amount established for casual collection is not precluded by the regulations, but would require a permit. The Department could consider the intent and degree of non-compliance regarding collection greater than the established reasonable amount in decisions regarding potential enforcement.

Comment: Specified reasonable amounts will result in specimen loss by culling.
Respondents expressed the view that imposing limits on reasonable amounts would lead to loss and/or destruction of specimens because collectors would high-grade, field-trim, and/or otherwise cull collected specimens in the field in order to meet specified collection limits.

Response:
Collection of amounts greater than the reasonable amount established for casual collection would require a permit. The Department expects that responsible collectors would strive to minimize collateral damage to specimens resulting from culling and/or field-trimming. Discarded material would be considered as disturbed surface material in context of the negligible disturbance criterion.

Comment: Reasonable amount limits will not permit adequate scientific sampling.
One respondent expressed the view that specified limits on reasonable amounts would result in inadequate sampling of fossil populations and tainted scientific hypotheses resulting from such samples. One respondent suggested that the reasonable amount limits are too low to be able assess fossil population variation and to document changes of such variation across gradients in space and time.

Response:
Collection as described by the respondents for the purpose of obtaining sample sizes representative of the variation in a natural population would be considered research, not casual collection, and would require a permit.

Comment: Reasonable amount should be what can be safely stored in a personal residence.
Two respondents suggested that reasonable amount be defined as the volume of material that can be safely stored in an individual's personal residence. One respondent suggested that reasonable amount should be defined as an amount of collected material that is capable of being properly transported and stored for future use.

Response:
The Department has considered public comments on the proposed rule and has modified the reasonable amount definition to comprise a criterion of 100 pounds per person per calendar year, not to exceed 25 pounds per person per day. The amounts suggested by the respondents greatly exceed a reasonable amount considered in the context of casual collection. Collection of amounts greater than the reasonable amount established for casual collection would require a permit.

Comment: Limits on reasonable amounts will reduce collaboration between amateurs and professionals.
One respondent expressed the view that the specified reasonable amounts will have a chilling effect on long term collaboration between amateur collectors, professional paleontologists, and repository institutions.

Response:
The respondent's suggestion that reasonable amount limits would reduce collaboration between amateur collectors, professional paleontologists, and repository institutions is conjectural and not substantiated. Amateur collectors may apply for a permit to collect amounts greater than the reasonable amount established for casual collection. In addition, the definition of reasonable amounts should not affect working relationships among parties interested in paleontological resources on National Forest System lands.

Comment: Collection of larger quantities for donation and/or education.
One respondent suggested that clarification should be provided concerning whether or not quantities of abundant resources that exceed the specified reasonable amount could be collected for donation for educational purposes.

Response:
Amounts greater than the reasonable amount limit established for casual collection would require a permit for collection.

Comment: Development of online certification instructional program.
One respondent expressed the view that it would be beneficial for the Department to develop an online instructional and/or certification program providing guidance on collection of paleontological resources and responsible uses of the land and its resources.

Response:
The establishment of an online instructional/certification program as described by the respondent has merit as a concept, but is beyond the scope of these regulations.

Comment: Reasonable amount criterion of not more than five specimens of any one kind is ambiguous and too restrictive.
Respondents expressed the view that the reasonable amount criterion of not more than five specimens of any one kind is ambiguous and too restrictive. Respondents suggested that clarification should be provided concerning the meaning of “kind,” which could be interpreted to correspond to taxonomic ranks ranging from class to species. One respondent expressed the view that for small specimens, the limit of five could be exceeded in a single hand sample. Respondents suggested that the numeric limit be raised to ten specimens of any one kind, and one respondent suggested that the term “kind” be replaced by “morphotype”. One respondent suggested that the criterion of not more than five specimens of any one kind be eliminated.

Response:
The Department has considered public comments on the proposed rule and has modified the reasonable amount definition to comprise a criterion of 100 pounds per person per calendar year, not to exceed 25 pounds per person per day. The criterion of five specimens of any one kind has been eliminated.

Comment: Reasonable amount limits based on volume and/or size are too restrictive.
Respondents expressed the view that reasonable amount limits per calendar year of 25 pounds, 1-gallon container or less, and/or one hand-carried slab are overly restrictive. Respondents suggested that fossils at many collection sites are so abundant that collection would have little impact, and those fossils that are not collected are destroyed by weathering. One respondent expressed the view that many well-known collecting areas look untouched. One respondent suggested that higher collection limits are necessary for amateurs to perform paleontological reconnaissance collecting for academic paleontologists.

Response:
The Act stipulates that the regulations must define reasonable amount with respect to casual collection. Although fossils may be very abundant at some collection sites, they may not be universally abundant at all collection locations. The Department has considered public comments on the proposed regulations and modified the reasonable amount definition to comprise a single criterion of 100 pounds per person per calendar year. Paleontological reconnaissance collecting as described constitutes research, is not considered casual collection, and requires a permit.

Comment: Reasonable amount limits should be raised.
Respondents expressed the view that the weight limit of 25 pounds per calendar year be raised to 25 pounds per day or 100 pounds per day. Respondents suggested that annual weight limit be raised to 50 pounds or 100 pounds or 200 pounds per year. One respondent suggested that the 1 gallon by volume yearly limit be raised to 4 cubic feet. One respondent expressed the view that the hand-carried slab criterion be changed to a 100 pound weight limit per slab. One respondent expressed the view that clarification should be provided concerning whether the stated reasonable amount limits apply to individuals or families.

Response:
The Department has considered public comments on the proposed rule and has modified the reasonable amount definition to comprise a criterion of 100 pounds per person per calendar year, not to exceed 25 pounds per person per day.

Comment: Reasonable amount that can be hand carried.
Two respondents expressed the view that the criterion that a slab can be no larger than what

can be hand-carried by a single person is unfair because the allowed amount would depend on the size and/or strength of an individual, rather than a uniform limit applied to all individuals.

Response:
The Department has considered public comments on the proposed rule and has modified the reasonable amount definition to comprise a criterion of 100 pounds per person per calendar year, not to exceed 25 pounds per day.

Comment: Reasonable amount limits and fossils enclosed in rock matrix.
Respondents suggested that clarification should be provided regarding whether or not rock matrix surrounding fossils is included in the limits, and suggested that destruction of fossils would result from collectors attempting to field-trim matrix from fossils to remain under limits.

Response:
The reasonable amount limit would apply to the entire amount of material removed in a year, including fossils and any enclosing matrix. The Department expects that responsible collectors would strive to minimize collateral damage to specimens resulting from field-trimming. Discarded material would be considered as disturbed material in context of the negligible disturbance criterion.

Comment: Application of criteria for reasonable amount limits.
Respondents expressed the view that reasonable amount limits reflecting volume and/or weight and/or numbers of specimens would be inconsistent and difficult to apply. Respondents expressed the view that clarification should be provided regarding which criterion would apply in cases where a collection could be characterized by more than one criterion. One respondent suggested that the limit of five specimens of any one kind would in many cases be very easy to exceed in a collection that might fit in a 1-gallon container and/or in a slab weighing 25 pounds.

Response:
The Department agrees that multiple criteria for reasonable amount may be inconsistent and difficult to apply. Consequently the regulations have been modified to specify a single reasonable amount of 100 pounds by weight per person per calendar year, not to exceed 25 pounds per person per day.

Comment: Tracking annual reasonable amount collection limits.
Two respondents suggested that clarification should be provided concerning how annual reasonable amount collection limits would be tracked.

Response:
The Act does not require casual collecting to be tracked. However, in establishing a reasonable amount criterion for casual collection a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-08483. Public record. Not legal advice.