Session 18: LEGISLATIVE UPDATE: NEW AND PROPOSED LAWS AND REGULATIONS AFFECTING FEDERALLY-ASSOCIATED COLLECTIONS
Moderator, Ann Hitchcock, Chief Curator, Museum Management Program, NPS

The Fossil Preservation Bill (HR 2943)
Michael Woodburne, Department of Earth Sciences, University of California, Riverside, Co-Chair, Government Liaison Committee, Society of Vertebrate Paleontology

Session included a review of the bill and analysis of its effect on the preservation of fossil resources on public lands. This bill differs from current statutes in enfranchising commercial collecting for fossil vertebrates on federal lands and transfers ownership of fossils to individual collectors (or institutions) rather than vesting such ownership with the people of the United States. The bill therefore provides that fossils can be collected for sale. A summary of the bill as introduced follows:

Fossil Preservation Act of 1996 - Provides that all Federal lands shall be open to fossil collecting by reconnaissance (from the surface) without a permit, with specified exceptions, and open to fossil collecting by quarrying pursuant to permit.

Requires Federal land managers to manage fossils separately from archaeological resources, cave resources, and cultural resources, but in conjunction with natural resources.

Specifies the types of collecting and whether notice or permits are required.

(Sec. 5) Sets forth permit terms and conditions. Allows for educational collecting permits, scientific collecting permits, and commercial collecting permits.

(Sec. 6) Imposes fees and royalty payments (on the fair market value of fossils) for commercial collecting.

(Sec. 7) Places ownership of collected fossils in the collector. Provides an exception for scientifically unique fossils collected commercially, making them the property of the United States.

(Sec. 9) Requires the Director of the United States Geological Survey to establish a National Fossil Council to provide guidance under this Act.

Natural Resource Collections from National Park Lands: Proposed Changes to Regulations (35 CFR 2.5)
Ann Hitchcock, Chief Curator, Museum Management Program, NPS

• Early 1980's: NPS scientists and natural resource managers realized that valuable baseline data and documentation on some specimens collected in parks was being lost. Permits were issued to a collector, the specimens went to the collector's institution, and NPS had no effective way to track that research because the permit did not always indicate where the collections would be housed. If the repository were known, retrieval of specimens and data by collecting locality, park name or "NPS" was usually not possible.
• 1984: To resolve this issue NPS changed the regulations governing the taking of fish, wildlife, rocks and minerals (36 CFR 2.5g) to require that specimens collected in parks and retained in museum collections bear official NPS museum labels and be cataloged in the NPS system. The effect of the regulation was that NPS retained ownership and the collected specimens were often loaned to the researcher's institution. Some researchers complained that the regulation was burdensome and that such loans were against their institution's policies. Some NPS managers complained that the regulation discouraged potentially valuable research.
• 1993: NPS museum management program proposed revision to the regulation to allow the park superintendent to transfer ownership when a permit is issued. When ownership is transferred, NPS would require the owning institution to maintain retrievable reference to certain data fields, including the name of the NPS unit where collected.
• Current status: Interior Solicitor is reviewing the draft regulations; once approved by the NPS Director and Assistant Secretary the Federal Register will publish the proposed regulations; the public will have 60 days to comment; then the final regulations will be published.
  

The Copyright Protection Bills (S 1284 and HR 2441)
Jason Y. Hall, Director, Government Affairs Program, American Association of Museums

• museums have been users of copyright materials and will become producers of copyright materials through digitalization for the internet;
• what is fair use? to use copyright materials for certain limited purposes without explicit permission to do so and without having to pay royalties
• museum as user: preserve fair use and to extend copyright onto internet
• museum as educator: to have open access to information
• museum as creator: need to tell people difference between copyright and fair use; piracy and preservation of integrity of images
• museum wants to protect ownership and image but also to use and give access to others
• see May/June issues of Museum News for cover article on digitizing images and copyright concerns
• Corbis contracts - digitizes images for museum
• museum has copyright to original image but not for digitized image
• museum has control/veto power over third party use; museum and Corbis may share royalties;
• Academy of Natural Science in Philadelphia is "pilot" for natural history and digitalization; 10-20 year contracts - good idea?
• 3 issues on copyright
  1. copyright extension not a big deal
     • today, lifetime plus 50 years (Europe is +70 years) bill would adopt European standard
     • stalled over music in restaurants
  2. copyright internet very big deal
     • adapt copyright law to information super highway movies and music - driving this bill (to create standards)
     • for museums, fair use is issue and want it extended because of museum as an educator but also want to protect copyright holder rights
     • stalled because of big corporate interests and complex issues
     • limiting liability for internet service provider
     • action likely this fall or next year
  3. copyright restoration narrow impact
     • Article has appeared in Museum News -- most recent issue
     • 1921 or later in 144 countries - what was thought to be public domain may revert to copyright coverage
     • window of opportunity - 1 1/2 year to register intent with copyright office
     • contemporary art museums most affected
     • Library of Congress website "Thomas" to download bill

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  NAGPRA Regulations: Proposed Additions (43 CFR 10) and Archaeological Curation Regulations: Proposed Additions (36CFR 79)
  Frank McManamon, Departmental Consulting Archaeologist, Archaeology and Ethnography Program, NPS NAGPRA
  
  

  1. NAGPRA
     1. Two of the "reserved" sections of NAGPRA regulations are being worked on:
        1. Civil penalties - Section 9 of NAGPRA authorizes the Secretary of Interior to assess civil penalties against museums for failure to comply
           1. Draft text reviewed by Review Committee
           2. Our plans to publish as "interim" regulation. This means when it is signed, it will go into immediate effect as well as being available for public comment
        2. Future applicability of NAGPRA will be described in Section 10.13 of the regulations. This will be published as a proposed addition to the regulations and will cover the following:
           1. what the Secretary of the Interior may do if in non-compliance
           2. how penalty amount assessed and carried out?
           3. appeal process
           4. how museum and agencies are to deal with new items that come into their collections after inventories and summaries already done to comply with NAGPRA
           5. to be discussed by review committee next week (June 9-11, 1996)
     2. The NAGPRA Review Committee continues to consider the issue of how to treat "culturally unidentifiable" Native American human remains.
     3. 36 CFR 79
        1. implements parts of NHPA, ARPA, etc.
        2. 2 new sections are being considered to amend 36 CFR 79; these will cover the following:
           1. describes related records, location of collection, site maps, and other records
           2. Calls for distribution of these to SHPO, state archeologist, or state file site management organization. Where sites on tribal land to tribe. Where sites on private land to private owners
           3. Original proposed text published in Federal Register vol. 55, No. 177, pp: 37670-37672 (1990)
           4. only 9 comments back when sent out for public review in 1990
           5. circumstances to discard - examples: excess of material, inadvertent accessioning
           6. procedures to review decisions to discard - professionally-based
           7. review decision to discard
           8. thorough documentation of decision process
     4. Topics that should be considered as we address the core collections management and curation of archeology collections
        1. Scope of collection statements could be more explicit about what kinds of archaeological objects should be collected
        2. Agencies, academics, and CRM firms doing field work need to ask questions about the amount of material they need to recover agencies that are doing contracts; incorporate sampling decisions into scope of work planning
        3. Incorporate assessment of what material should be returned as part of the field work. Need to incorporate consideration of sampling into their planning

  Discussion:

  • partnerships are essential
  • threat of wholesale dumping and individual agency policies
  • no commitment to financial compensation or the cost of doing business
  • intellectual property rights - small value when taken until they are accessioned, catalogued and put into museum - then they become intellectual property

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