<ARTICLE>
Date="02/16/94"
Citation="59 FR 7880"
Group="interior"
Type="PROPOSED RULE"
Department="DEPARTMENT OF AGRICULTURE"
Agency="FOREST SERVICE, USDA"
Subject="Prohibitions; Law Enforcement Support Activities"
<HEADER>
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 261 and 262
RIN 0596-AA75
Prohibitions; Law Enforcement Support Activities
AGENCY: Forest Service, USDA.
ACTION: Proposed rule.
</HEADER>
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 261 and 262
RIN 0596-AA75
Prohibitions; Law Enforcement Support Activities
AGENCY: Forest Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would provide a comprehensive revision
of the acts prohibited on the National Forest System enforced
by personnel of the Forest Service. These proposed revisions
respond to emerging law enforcement issues, the enactment of
new laws, and the promulgation of new rules that have occurred
since the subject rules were last revised. The intent of these
rules is to adequately protect National Forest System resources,
the public who uses the National Forest System, and the employees
who administer it. Public comment is invited.
DATES: Comments must be received in writing by April 18, 1994.
ADDRESSES: Send written comments to F. Dale Robertson, Chief
(5300), Forest Service, USDA, P.O. Box 96090, Washington, DC
20090-6090.
The public may inspect comments received on this proposed
rule in the Office of the Director, Fiscal and Public Safety
Staff, room 605, 1621 North Kent Street, Arlington, VA, during
regular business hours (8 a.m. to 4:30 p.m.), Monday through
Friday.
FOR FURTHER INFORMATION CONTACT:
Jack Gregory, Law Enforcement and Investigations Staff, (912)
267-2471 or Kathryn Toffenetti, Office of the General Counsel,
Natural Resources Division, (202) 720-2651.
SUPPLEMENTARY INFORMATION:
Law Enforcement Activities on the National Forest System
Promulgation of Rules
In order to carry out the agency's statutory mission, it
has long been necessary to promulgate rules setting forth those
acts that are prohibited on the National Forest System. These
rules are integral to Forest Service efforts to protect resources,
facilities, employees, and the public. The primary authority
for the Secretary to promulgate such rules is found at 16 U.S.C.
551. Violators of these rules can be punished by imprisonment
for a term not to exceed six months and are subject to a range
of fines as a result of the enactment of the Comprehensive Crime
Control Act of 1984 (18 U.S.C. 3559, 3571).
Jurisdiction of National Forests
Both Federal and State laws apply to the national forests
(16 U.S.C. 480), that is, both Federal and State criminal and
civil jurisdiction apply to persons within the national forests.
Generally, State enforce State laws, while Federal officers
enforce Federal laws and regulations. In most cases, the Forest
Service enforces laws and regulations relating to its resource
protection responsibilities. Some prohibitions established in
certain State laws may also be appropriate subjects of Federal
regulation. There are several Forest Service prohibited acts
that rely on the existence of a particular State law for definition,
for example, 36 CFR 261.13(i) prohibits the operation of any
vehicle off Forest Development, State or County roads ``in violation
of State law established for vehicles used off roads.'' Thus,
in some instances, an act or omission by a national forest visitor
may be regulated by both Federal and State governments.
Forest officers cooperate fully with State, local, and other
Federal agencies in executing their responsibilities related
to the National Forest System. With the enactment of the Cooperative
Law Enforcement Act in 1971 (16 U.S.C. 551a), the Forest Service
has entered into reimbursable agreements with some State and
local agencies (usually a county sheriff's office) for the protection
of persons and their property on the National Forest System
where the existence of forest attractions and facilities account
for an extraordinary amount of visitor use. These agreements
provide an avenue to assist local jurisdictions that are impacted
by these attractions. During the past several years, however,
it has become evident that reimbursement through the Cooperative
Law Enforcement program cannot alone provide the level of protection
that should be afforded the public in Forest Service recreation
areas. For example, when a forest visitor is victimized by theft
of personal property or an assault and the local enforcement
authority is unable to respond, there are often trained and
equipped Forest Service law enforcement personnel in the immediate
area at the time of the incident. These victims are often assisted
by Forest officers who initiated what action they can, given
the current scope of the prohibitions.
Need For Revision of Rules
Pursuant to Departmental Regulation 1512-1, the Forest Service
has reviewed 36 CFR Part 261-Prohibitions and 36 CFR Part 262-
Law Enforcement Support Activities to determine their current
applicability in view of new and changing laws, conditions,
and other factors affecting the management of the National Forest
System, employees, and the general public. By letter of September
8, 1987, the Chief of the Forest Service asked each Regional
and Washington Office staff unit to review the current rules
and to make suggestions on any needed revisions. This Service-
wide review has revealed a need to revise the rules in order
to more effectively respond to recent changes in laws, regulations
and policy, and emerging law enforcement issues.
Protection of Forest Users and Visitors
Without exception, Forest Service regions cited an inadequate
regulatory basis for conducting law enforcement activities in
certain areas when State and local authorities are unable to
provide law enforcement services associated with violations
of State or local law occurring on the National Forest System.
This situation occurs as a result of a number of factors, one
being the inability of small local law enforcement agencies
to respond quickly to all but the most violent of crimes against
users (murder, rape and other assaults). Many local law enforcement
agencies find that their limited personnel, the distant location
of Forest Service areas, and the seasonal nature of use these
areas receive are impediments to rapid response to crimes committed
on the National Forest System. When State and local law enforcement
units cannot respond promptly, and trained and equipped Forest
officers are at a location where persons need help or encounter
criminal activity affecting those persons, the Forest Service
should be in a position to render emergency assistance. Because
Forest officers generally cannot enforce State laws, the agency
needs rules which will make certain State crimes violations
of Forest Service regulations. The authority provided by 16
U.S.C. 551 allows regulating occupancy and use even if such
regulation is not necessary for the protection of forest resources
(United States v. Hymans, 463 F.2d 615 (10th Cir. 1972)). To
prohibit, for example, the theft of visitors' personal property
is a reasonable regulation of the use of the forests and should
help to keep visits to the national forests enjoyable.
Expanded Forest Service Law Enforcement Authority
There is a need to revise the regulations to reflect expanded
authority granted by statutes enacted since the rules were last
revised, specifically, certain provisions of the Comprehensive
Crime Control Act of 1984 (18 U.S.C. 3559, 3571), and the National
Forest System Drug Control Act of 1986 as amended (16 U.S.C.
559b-g).
Technical Corrections
There is a need to make technical corrections in terminology
and citations in several places in the rules, including revising
the Authority citations for both parts.
Felony Case Prosecution Requests
There is a need to incorporate certain statutes contained
in the Federal Criminal Code into agency rules to facilitate
enforcing such statutes as misdemeanors rather than as felonies.
This will help reduce agency felony case prosecution requests
presented to the U.S. Department of Justice as well as provide
for a speedier resolution of certain cases. Examples of these
kinds of cases include intimidation and impersonation of Forest
Service employees, use of controlled substances, unauthorized
use of Forest Service computer systems, and thefts of certain
government property or resources.
Section-by-Section Analysis of Proposed Rule
The proposed rule would amend two parts of Chapter II of
Title 36 of the Code of Federal Regulations: Part 261-Prohibitions,
and Part 262-Law Enforcement Support Activities. A section-by-
section discussion of the changes proposed to each part follows.
Part 261-Prohibitions
Subpart A of this part sets forth acts and omissions that
are prohibited throughout the National Forest System. Subpart
B grants authority to Regional Foresters and Forest Supervisors
to issue orders and regulations prohibiting certain acts in
specific areas.
Subpart A-General Prohibitions
Section 261.1 Scope
This section establishes when the prohibitions of the subpart
apply. The punctuation in paragraphs (a)(1) through (a)(4) would
be revised to make clear that the conditions set forth in sec
261.1(a) are in the alternative (i.e. that all conditions need
not apply, just any one of them).
Paragraph (a)(3) currently provides that the rules of the
subpart apply to an act or omission that affects, threatens,
or endangers persons using the National Forest System or Forest
development roads or trails or persons engaged in the protection,
maintenance, or administration of such. As written, the rule
protects Forest Service employees only when they are engaged
in their duties and does not apply to situations where Forest
Service employees are threatened or intimidated during ``off-
duty'' hours as a result of an action taken while they were
on duty. This situation can be remedied by revising paragraph
(a)(3) to refer in paragraph (a)(3)(ii) to threats to or endangerment
of persons engaged in or on account of the performance of official
duties including the administration of the National Forest System.
Existing paragraph (a)(4) would be revised to clarify that
these regulations apply within the boundaries of those components
of the National Trails System or the National Wild and Scenic
Rivers System that are administered by the Forest Service.
A new paragraph (a)(5) would be added to provide the agency
a means of protecting personal property of forest users in the
absence of a response by local law enforcement agencies. At
present, if a forest user has personal property stolen or damaged
(for example, an ice chest or sports equipment) the Forest Service
must rely on State or local law enforcement personnel to investigate
and charge the person responsible. However, in many cases, local
law enforcement agencies do not have the resources to investigate
these cases in a timely manner, and while the Forest Service
has authority to investigate the case, it presently has no basis
in its regulations for charging a person with misdemeanor theft.
This is understandably a source of frustration to forest visitors
victimized by theft, especially when trained and equipped Forest
officers may be in the area where the theft or incident occurred
and are able to identify the person(s) responsible. This addition
to the rule would bridge this gap in law enforcement in those
cases where local law enforcement agencies cannot respond in
a timely manner.
Paragraph (b) of existing sec 261.1 exempts certain activities
allowed for by statute that otherwise may be a violation of
this part. The paragraph currently cites The Wilderness Act
of 1964 and the Mining Law of 1872. The provisions of other
laws which would also apply are not included. The paragraph
would be revised to make clear the agency's intent to exempt
from the prohibitions of this part any activity that is conducted
in compliance with other regulations set forth in chapter II.
A new paragraph (c) would be added to make clear that the
existence of these rules does not prevent the Federal Government
from proceeding with necessary criminal action codified in Federal
statutes rather than under these regulations. This revision
is necessary to comport with the fact that the United States
Department of Justice determines when the Federal Government
should pursue criminal sanctions under Federal statute.
A new paragraph (d) would be added to clarify that unless
intent is stated in specific provisions, strict liability applies
to these regulations. The prohibited acts set forth in 36 CFR
part 261 are offenses in the nature of neglect where the law
requires care, or are offenses in the nature of inaction where
the law imposes a duty (Morisette v. United States, 341 U.S.
262 (1952)). Such offenses ``render[s] criminal a type of conduct
that a reasonable person should know is subject to stringent
public regulation and may seriously threaten the community's
health or safety,'' (Liparota v. United States, 471 U.S. 419,
426 (1985)). Thus, for example, a prohibition of unauthorized
livestock on national forest land without regard to whether
a person intended to place such livestock there would tend to
ensure that a person exercises diligence to prevent resource
damage. A person should know that the use of Federal lands is
subject to stringent regulation, and that action or inaction
in violation of such regulations can cause irreparable harm
to the public or the land and its resources.
No other revisions are proposed to this section.
Section 261.1a Special Use Authorizations, Contracts and Operating
Plans
The term ``operating plans'' in the heading and text of this
section would be changed to ``plans of operations'' in order
that one standardized term can be used throughout this part
to describe the various documents authorizing mineral related
operations conducted pursuant to 36 CFR part 228 or 36 CFR part
292, subpart D. The last sentence of this paragraph would be
removed as it duplicates information contained in other parts
of 36 CFR and does not pertain to law enforcement on the National
Forest System.
No other revisions are proposed to this section.
Section 261.1b Penalty
This section currently states the penalty for violating these
rules in the words of 16 U.S.C. 551: ``Any violation of the
prohibitions of this part (261) shall be punished by a fine
of not more than $500 or imprisonment for not more than six
months or both * * *.'' However, the enactment of the Comprehensive
Crime Control Act of 1984, as amended, established categories
of offenses based on the maximum amount of imprisonment for
each offense (18 U.S.C. 3559). Offenses with a maximum term
of six months of imprisonment, such as those offenses covered
by these regulations, are now considered ``Class B Misdemeanors''
(the subject rules were formerly classified as petty offenses,
18 U.S.C. 3559(a)(7)). The statutory language of 18 U.S.C. 3571
prescribes a range of fines for Class B Misdemeanors depending
on specific circumstances associated with the violation. The
proposed revision to this section reflects this statutory change
and provides for an exception by including the words ``unless
otherwise provided'' which, for example, would apply to the
enforcement of the collection of fees authorized by the Land
and Water Conservation Act (36 CFR 261.15). A failure to pay
such a fee is an infraction, which allows for a range of fines
pursuant to 18 U.S.C. 3571 but does not allow for imprisonment
of the offender.
No other revisions are proposed to this section.
Section 261.2 Definitions
Two existing definitions would be revised and twelve new
definitions would be added to conform to various amendments
that are proposed elsewhere in the subpart:
The term ``Damaging'' would be revised to add the words ``rut''
and ``gouge'' to better define damage to roadways and property.
The last sentence of the definition for the term ``National
Forest System'' would be revised to conform to the definition
established in the Forest and Rangeland Renewable Resources
Planning Act of 1974 (16 U.S.C. 1609(a)).
The term ``Alcoholic beverage'' would be added to clarify
which beverages are intended to be covered in the prohibition
against possession and use of alcoholic beverages at 36 CFR
261.58(bb). In the absence of a definition in this section,
the Forest Service has relied on defining alcoholic beverage
by reference to State law. The intention was to prohibit possession
of all forms of alcoholic beverages when provided by an order;
yet in some states, the definition of alcoholic beverages does
not include beer and wine. This inconsistent treatment of ``alcoholic
beverage'' in the present rule can be remedied by defining alcoholic
beverages as ``beer, wine, distilled spirits, and any other
beverage defined as such by State law.''
The term ``Computer'' would be added to clarify the type
of machines covered under two new proposed rules in 36 CFR 261.9.
The definition is the same as the definition at 18 U.S.C. 1030.
The term ``Contraband'' would be added to support a proposed
revision at 36 CFR 261.4(c).
The term ``Controlled substance'' would be added so that
possession of drugs may be handled through a United States Magistrate
judge by the issuance of a violation notice, rather than by
proceeding under the simple possession statute at 21 U.S.C.
844, which requires either the filing of a complaint or information,
or indictment by a Federal grand jury. The definition is the
same as that used at 36 CFR 1.4.
The terms ``Endangered species,'' ``Threatened species,''
and ``Sensitive species'' would be added to implement the rules
at 36 CFR 261.9 (a) and (b). The current rule refers to these
terms, but does not provide definitions. The proposed rule defines
Endangered species and Threatened species as those species designated
as such by the Secretary of the Interior or the Secretary of
Commerce. The proposed definition for Sensitive species is the
same as in the Forest Service Manual, section 2670.5.
The terms ``Guiding'' and ``Outfitting'' would be defined
to indicate to the public and the courts the intended prohibited
acts when engaging in such activities without a special use
authorization. The definitions proposed parallel those found
in the Forest Service Special Uses Handbook (FSH 2709.11).
A definition of the term ``Intimidating'' would be added
to clarify the prohibited acts covered by this term.
The term ``Plan of operations'' would be added in order that
one standardized term can be used throughout this part to describe
the various documents authorizing mineral-related operations
conducted pursuant to 36 CFR part 228 or 36 CFR part 292, subpart
D.
The term ``Scenic easement'' would be added to support two
proposed rule additions at 36 CFR 261.9(i) and 36 CFR 261.10(r)
which provide for the enforcement of requirements or prohibitions
associated with such easements.
Section 261.3 Interfering With a Forest Officer, Volunteer,
or Human Resource Program Enrollee or Giving False Report to
a Forest Officer
As currently written, this section prohibits interference
with a Forest officer, interference with a volunteer or human
resource employee, and the giving of a false report to a Forest
officer. It is proposed to revise the section's heading to read
``Interfering with agency functions'' for clarity and brevity.
Existing paragraph (a) would be revised to combine the two
``Forest officer'' and ``volunteer'' interference rules currently
found at paragraphs (a) and (c) into a single prohibition.
Existing paragraph (b) would be revised for clarity.
Two additions are proposed for this section. A new paragraph
(c) is proposed to support on-site control of the public and
maintain order during firefighting, law enforcement, or other
operations.
A new paragraph (d) is proposed to prohibit the impersonation
of Forest officers, volunteers, or human resource program enrollees.
At present, the only option available to the agency is to prosecute
an impersonation as a felony (18 U.S.C. 912). The proposed regulation
would provide the opportunity, where appropriate, to treat these
cases as misdemeanors, rather than to proceed under felony statutes.
No other revisions are proposed to this section.
Section 261.4 Disorderly Conduct
The proposed changes to sec 261.4 result from situations encountered
by Forest officers, usually in developed recreation areas, that
require immediate attention such as breach of the peace or other
illegal activity which, if not resolved, threatens the health,
safety, rights, or enjoyment of forest users. Usually, Forest
officers encounter these situations due to the unavailability
of State or local authorities to patrol recreation areas. Often
Forest officers are the only recognized authority with law enforcement
responsibilities that the public may encounter. In other cases
where State authorities do perform patrols, they may not be
in a given location when law enforcement action must be taken,
requiring Forest officers to initiate action until the State
or local authority can arrive. The above scenarios are occurring
routinely in some Forest Service recreation areas, and while
the agency has the authority to regulate activity of this nature,
it has no current regulations on which to support actions being
taken by employees.
The section heading would be revised to read ``Public behavior''
to encompass the broader area of prohibited conduct included
in the proposed rule.
Existing paragraph (a) would be revised to include the words
``or any other violent behavior'' in addition to prohibiting
``fighting.''
Existing paragraph (b) currently prohibits ``offensive, derisive
or annoying communication.'' The proposed revision of this paragraph
is a narrower approach, identifying with more specficity the
types of language or action that is prohibited and adding the
element of intent to cause, or knowingly or recklessly creating
the risk of, public alarm, nuisance, jeopardy or violence.
Existing paragraph (c), which prohibits making ``statements
or other actions directed toward inciting or producing imminent
lawless action'' would be removed, as this provision would be
covered in revised paragraph (b).
A new paragraph (c) is proposed to prohibit the possession,
selling, cultivation, dispensing, or bartering of controlled
substances, alcoholic beverages, or contraband if such acts
are a violation of State or Federal law. While the Forest Service
has the authority to investigate controlled substance violations
under the National Forest System Drug Control Act of 1986, as
amended, and make arrests under that Act, it may not be practical
to prosecute all as felony cases, such as the possession of
small amounts of controlled substances intended for personal
use. Therefore, the agency proposes to establish a rule which
provides for a misdemeanor penalty. Alcoholic beverages have
been included as the agency is currently without a rule prohibiting
underage consumption or possession of alcoholic beverages in
violation of State or Federal law on the National Forest System.
Forest Service regions report continuing problems in both developed
and undeveloped areas pertaining to large ``keg'' parties and
other parties where underage alcoholic consumption is occurring.
In many cases, State and local officers are unavailable to take
the necessary enforcement actions in order to protect other
forest users who are affected by this problem. The rule would
also prohibit the possession of contraband (i.e. where the very
possession of an item is illegal, as defined by either State
or Federal law). Some examples of included items would be certain
animal parts or unregistered automatic weapons.
A new paragraph (e) would be added prohibiting ``being under
the influence of any controlled substance or alcoholic beverage,''
if it is a violation of either State or Federal law. This would
be a companion rule with the proposed new paragraph (c) and
is needed for the same reasons.
Finally, new paragraphs (f) and (g) would be added to allow
for federal prosecutions of persons who victimize forest visitors
or other persons and their property on the National Forest System.
No other revisions are proposed to this section.
Section 261.5 Fire
One change is proposed to this section. As written, paragraph
(b) prohibits the firing of tracer or incendiary ammunition.
The wording of the paragraph requires that a Forest officer
must prove that a person actually ``fired'' the ammunition,
something that is very hard to do. Accordingly, this prohibition
would be expanded to prohibit the possession of tracer or incendiary
ammunition as well. The possession of tracer or incendiary ammunition
on the National Forest System can be harmful to persons as well
as resources and is clearly not within the public interest.
If persons are prohibited from possessing such ammunition, there
is less likelihood of it being fired.
Section 261.6 Timber and Other Forest Products
Existing paragraphs (a) and (h) would be revised to include
the term ``approved plan of operations'' and ``permit'' as exceptions
to the stated prohibited acts.
Paragraph (c) currently prohibits removing timber or other
forest product except to a place designated for scaling. As
some forest products are recorded by means other than scaling,
a proposed revision to this paragraph would clarify that it
is prohibited to remove such products except to a place designated
for scaling or other means of recording by a forest officer.
Paragraph (d) currently prohibits the marking of trees or
other forest products to be cut or removed in a manner similar
to that employed by Forest officers. This paragraph would be
revised to prohibit the counterfeit marking of trees to be left
uncut on a timber sale. During the past 2 years, at least one
Forest Service region has encounter numerous markings of ``leave''
trees on timber sales that were never marked by Forest Service
personnel. Investigation or later communication to the agency
by the person(s) claiming responsibility revealed that these
markings were made to hamper Forest Service timber sales efforts
by trying to confuse timber sale purchasers as to which trees
could be cut and which trees were to be left. Where this has
occurred, Forest officers have had to re-mark portions of timber
sales incurring additional agency costs.
Paragraph (e), which prohibits the removal or hauling of
timber or other forest products unless it is properly identified
by the terms of a special use authorization or contract, would
be revised for clarity by removing the word ``hauling'' and
adding in its place the words ``transporting'' and ``possessing.''
The revision is needed to better define the offense and to make
clear that possession of forest products without the proper
identification as required by a special use authorization or
timber sale contract is prohibited.
A new paragraph (i) is proposed to prohibit ``altering, adding,
moving, or removing any stamp, brand, paint, timber sale boundary
marker or tag, or other identification on any tree * * * previously
marked or surveyed by a Forest officer * * *.'' This addition
is needed due to the increasing number of cases where legitimate
brands, paint, and timber sale boundary markers have been altered,
moved, or removed. In pursuing such cases, the agency has discovered
that the current rules do not adequately address this practice.
No other revisions are proposed to this section.
Section 261.7 Livestock
Paragraph (a) currently prohibits ``placing or allowing unauthorized
livestock to enter or to be in the National Forest System *
* *.'' In a recent Ninth Circuit Court of Appeals case (United
States v. Semenza, 835 F.3d 223 (9th Cir. 1987)), the court
stated that the inclusion of the words ``placing'' and ``allowing''
required the government to prove that the livestock owner meant
to violate this rule intentionally. This interpretation is not
consistent with the agency's intent; therefore paragraph (a)
would be revised by removing the words ``placing'' or ``allowing''
to make clear that unauthorized livestock are prohibited without
regard to whether a person intended to place or allow such livestock
on National Forest System lands.
No other revisions are proposed to this section.
Section 261.8 Fish and Wildlife
Paragraph (a) currently prohibits the ``hunting, trapping,
fishing, catching, molesting, killing, or having in possession
any kind of wild animal, birds, or fish'' to the extent that
Federal or State laws are violated. Under the proposed rule,
this paragraph would be expanded to include the words ``transporting,
buying, selling, bartering, or offering to buy'' wild animals,
birds, or fish to cover additional activities prohibited by
State or Federal laws which Forest officers routinely encounter
in the field. The revision would also add ``shellfish'' to the
existing rule, as there are several large shellfish beds on
the National Forest System in Washington State, and these are
not protected under the current rule.
No other revisions are proposed to this section.
Section 261.9 Property
The heading of this section would be revised to read ``Property
administered by the Forest Service'' to clarify that the prohibitions
apply to United States Government property rather than to the
personal property of a forest visitor. In addition, the introduction
to the section would be revised to state: ``Except as provided
by special use authorization, contract, approved plan of operations,
or Federal law or regulation, the following are prohibited *
* *.'' This revision is proposed so these authorizing documents
only have to be stated once in the section, rather than in each
paragraph.
Existing paragraph (a) would be revised and combined with
existing paragraph (b) and expanded to prohibit ``disturbing,
damaging, excavating, diggings, removing, transporting, possessing,
buying, selling, bartering, or offering to buy, sell, or barter
any natural feature or other property of the United States.''
By incorporating this change into part 261, the agency will
be able to cite persons for property violations as misdemeanors
rather than as felonies under the United States Criminal Code
(18 U.S.C. 641 and 1361) when appropriate.
Existing paragraph (c) would be revised and combined with
existing paragraph (d) and redesignated as paragraph (b). The
paragraph would also include a corollary addition of the words
``disturbing, damaging, excavating, digging, removing, transporting,
possessing, buying, selling, bartering, or offering to buy,
sell, or barter any plant that is classified as a threatened,
endangered, or sensitive species.'' This revision would replace
the terms ``rare'' and ``unique'' with the term ``sensitive''
in order to reflect a change in agency terminology since adoption
of the current rule (Forest Service Manual, section 2670.5).
Plants that once were identified as ``rare'' or ``unique'' have
been placed on ``sensitive'' plant lists established and maintained
by each Regional Office of the Forest Service.
Existing paragraph (e) would be redesignated as paragraph
(d) and revised by adding the words ``without permission'' to
remove an ambiguity in the current rule. The proposed rule would
make clear that employees and contractors may be permitted to
occupy Forest Service buildings and offices after closing hours.
Existing paragraph (f) would be revised for clarity and redesignated
as paragraph (e).
Existing paragraphs (g), (h), and (i) would be combined and
revised for clarity and redesignated as new paragraph (c).
Four new provisions are proposed for this section. A new
paragraph (f) would prohibit the possession, duplication, or
use of Forest Service locks and keys without authorization.
All Forest Service regions are experiencing significant problems
with the unauthorized use of these items. The only remedy currently
available is under the provisions of 18 U.S.C. 641, which requires
the agency to prove that an actual theft of government property
has occurred. These kinds of cases can best be handled as misdemeanors
rather than as felonies; therefore, inclusion in part 261 of
a prohibition on unauthorized possession, duplication, and use
of Forest Service locks and keys is appropriate.
New paragraph (g) and (h) are proposed to parallel, as misdemeanors,
a relatively new computer fraud law found at 18 U.S.C. 1030.
The statute requires that unauthorized access must ``affect
the use of the government's operation * * * of a computer.''
The statute also did not provide for prosecution under a misdemeanor
charge. The addition of paragraphs (g) and (h) in part 261 would
allow the agency to initiate action where there has been unauthorized
use regardless of the effect of the use on the government's
operation of a computer, and would provide a means for prosecution
of such use as a misdemeanor. The definition of ``computer''
proposed for inclusion in sec 261.2 is the same as in 18 U.S.C.
1030.
The addition of paragraph (i) would provide a prohibition
against performing an action or failing to perform an action
in violation of any restrictive covenants or deed reservations
associated with scenic easements. There are many instances when
there are blatant, but minor, violations of a scenic easement
(e.g. installation of signs, use of unauthorized paint colors,
etc.) which can be resolved more efficiently through the issuance
of a citation rather than through the initiation of a lawsuit.
Finally, new paragraph (j) is proposed to make it clear that
removal of minerals or mineral materials from the National Forest
System is prohibited unless done in compliance with laws and
regulations. To be in compliance, a person may need to obtain
an approved plan of operations or operating plan in accordance
with 36 CFR part 228, subparts A, C, or E, 36 CFR part 292,
subpart D, or a permit or lease issued by the Department of
the Interior in accordance with 43 CFR chapter II, subchapter
C.
No other revisions are proposed to this section.
Section 261.10 Occupancy and Use
The prohibitions in this section relate to occupancy and
use of the National Forest System by persons or entities other
than the Forest Service. The introductory text immediately following
the heading would be revised to include the same language as
proposed for sec 261.9 for the reasons outlined in that section.
Paragraph (b) would be revised for clarity to include ``residing
upon'' the National Forest System as a prohibited act.
Paragraph (c) would be revised to add the words ``leasing,''
``merchandise,'' ``equipment,'' and ``renting'' to update the
existing rule on activities prohibited without authorization.
Paragraph (d) would be revised to remove the prohibition
against the discharge of a firearm across or on a Forest development
road unless ``any person or property is exposed to injury or
damage * * *.'' The blanket prohibition against any discharge
has created a significant problem in several Forest Service
regions as a ``Forest development road'' includes closed roads,
traffic service level ``D'' roads, and other similar roads that
have little or no vehicular use. Because of the limited traffic,
hunting along these roads is not considered to be a safety problem.
The proposed revision would add a prohibition against the discharge
of a firearm from a vehicle and then make clear that the current
prohibition against discharging a firearm ``in any manner or
place whereby any person or property is exposed to injury or
damage as a result of such discharge or use,'' applies to any
location in the National Forest System.
Paragrph (k) would be revised to change the term ``operating
plan'' or ``plan of operations.''
In addition to the preceding amendments, six new provisions
are proposed for this section. A new paragraph (n) would prohibit
the payment of any ``product, permit, fee or service'' by a
check backed by insufficient funds. Several Assistant United
States Attorneys have recommended this addition, as the only
current remedy for such practices is to pursue them through
State courts, which has not been efficient. There have been
documented instances where the same user of a group-fee area
or campsite, knowing that the agency is unable to initiate an
effective collection action, has written bad checks two and
sometimes three years in a row.
A new paragraph (o) would prohibit anyone from charging or
collecting fees from persons using the National Forest System,
unless the charge or collection is permitted by Federal law,
regulation, or special use authorization. In the past few years,
there have been an increasing number of cases where private
individuals were successful in obtaining ``payments'' from unsuspecting
forest users for such things as rafting, using four-wheel-drive
roads, and walking across areas under special use authorization,
none of which required payment of a fee. This rule is needed
to protect the public from unlawful fees by providing a means
for prosecuting those engaging in such schemes.
A new paragraph (p) would be added to provide for the prosecution
of a failure to display an authorizing document when it is required
by the document to do so.
A new paragraph (q) would prohibit ``outfitting or guiding''
on the National Forest System without a special use authorization
or in violation of Federal or State law. This proposal was probably
the addition most widely requested by the Forest Service regions.
Considerable problems have existed in the enforcement of the
requirement that outfitting and guiding be conducted under special
use authorization due to the lack of a definition for the two
activities. The approach taken in the proposed rule is to define
``outfitting and guiding'' at 36 CFR 261.2 and then to prohibit
these activities without a special use authorization at 36 CFR
261.10.
A new paragraph (r) would be added to prohibit the undertaking
of any activity in violation of the requirements of a scenic
easement. This is a companion rule to the proposed 36 CFR 261.9(i)
and is being promulgated for the same reasons outlined in that
paragraph.
No other revisions are proposed to this section.
Section 261.11 Sanitation
Existing paragraph (b) would be revised to establish a general
prohibition against litering. The current text provides that
a Forest officer may take action only against persons who leave
``litter in an exposed or unsanitary condition.'' This has proven
insufficient to protect the National Forest System from littering.
No other revisions are proposed to this section.
Section 261.12 Forest Development Roads and Trails
Existing paragraph (a) would be revised to add the terms
``contract'' and ``approved plan of operations'' to the list
of authorizing documents, correcting an unintentional omission.
A new paragraph (e) is proposed to establish a rule prohibiting
the operation of a vehicle in violation of State laws, posted
signs, or traffic devices. Although local authorities are relied
on, when possible, to enforce traffic regulations, there are
many times when it is not possible or practical to obtain their
help, making Forest Service enforcement necessary. For example,
reckless driving is a matter that needs immediate action when
it is spotted by a trained and properly equipped Forest officer
to ensure safe travel for other road users. Since State laws
are applicable to Forest development roads, they could be enforced
by Forest officers, when necessary, through adoption of this
proposed prohibition.
The language proposed for new paragraph (f) currently appears
at 36 CFR 261.54(f), which prohibits ``operating a vehicle carelessly,
recklessly, * * * or in a manner or at a speed that would endanger
or be likely to endanger any person or property.'' The paragraph
would be removed from subpart B, amended to clarify this is
a strict liability offense, and made a part of subpart A.
A new paragraph (g) would require the use of seatbelts, if
provided by the manufacturer, for occupants of vehicles traveling
on Forest development roads. The prohibition would support State
laws which require the same, while ensuring safety and consistency
by relying on a single rule that would apply throughout the
National Forest System. Seatbelt laws vary from State to State.
For example, some states exempt the passengers of certain classes
of vehicles from mandatory seatbelt usage, while others, exempt
certain passengers. In many areas on the National Forest System,
a Forest development road can cross State boundaries. In these
situations, reliance on some State seatbelt statutes could lead
to inconsistency and confusion. This provision will ensure the
protection afforded by seatbelts throughout the National Forest
System regardless of individual State laws.
No other revisions are proposed to this section.
Section 261.13 Use of Vehicles Off Roads
Several changes are proposed to this section.
Existing paragraph (a) would be revised to clarify the current
``valid license'' requirement by referring to a ``valid operator's
license or permit,'' if required by State law.
Existing paragraph (e) would be removed as the prohibition
is included in the proposal for sec 261.4(e).
Existing paragraph (f) would remain unchanged but redesignated
as (e).
Existing paragraph (g) would be revised and redesignated
as (f). The paragraph would contain the same language as proposed
for 36 CFR 261.12(f). The revision, as proposed for this section,
would provide a consistent approach in the treatment of careless
and reckless driving throughout the National Forest System.
Existing paragraph (h) would be revised and redesignated
as (g). The revision would better define the current prohibition
of operating a vehicle that disturbs the land or other resources.
Existing paragraph (i) would remain unchanged but redesignated
as (h).
One additional provision is proposed for this section. Many
States have passed special registration requirements for off-
road vehicles. In support of these requirements, a new paragraph
(i) is proposed to prohibit the operation of a vehicle without
displaying a license plate or the proper registration, if it
is required by State law.
Section 261.14 Developed Recreation Sites
One change is proposed to this section.
A new paragraph (r) would be added to prohibit the informal
reservation or ``staking-out'' of camping units by third parties.
Unless campsites are specifically designated for advanced reservations,
they are intended to be occupied on a first-come, first-served
basis. The ``staking out'' of campsites has become a continuing
problem as recreational use of National Forest System lands
increases and is one that visitors often bring to the attention
of Forest officers for resolution.
Section 261.15 Admission, Recreation Use and Special Recreation
Permit Fees
This section would be revised to require forest visitors
to comply with the ``posted fee payment instructions'' at developed
sites and facilities. This proposed revision would close a legal
gap in the current rule which prohibits ``failing to pay.''
This change responds to several court decisions which have held
that existing 36 CFR 261.15 requires payment, but does not require
compliance with any other payment instructions posted at each
site.
Section 261.22 Buildings Used in Furtherance of the Administration
of the National Forest System or Forest Service Programs
This section would be added to the subpart to protect Forest
Service employees and facilities. The proposed addition paraphrases
the current General Services Administration building regulations
at 41 CFR subpart 101-20.3.
Subpart B-Prohibitions in Areas Designated by Order
This subpart grants authority to Regional Foresters and Forest
Supervisors to issue orders and regulations prohibiting certain
acts in specific areas. An explanation of the proposed revisions
to this subpart follows by section.
Section 261.50 Orders
Consistent with other revisions proposed throughout Subpart
A, paragraph (e)(1) would be revised to include the words ``special
use authorization,'' ``contract,'' ``approved plan of operations'',
and ``Federal law or regulation'' as the list of either authorizing
documents used by the Forest Service or to make clear that the
order may also exempt persons with authorization given by law
or regulation.
Section 261.53 Special Closures
This section states, that when provided by an order, it is
prohibited to go into or be in an area which is closed for the
protection of certain animal populations or biological communities,
management activities, or public health and safety.
Paragraph (a) currently states ``threatened, endangered,
rare, unique, or vanishing species of plants, animals, birds
or fish.'' The proposed revision would remove all the categories
which are currently listed and be revised to include simply
``plants, animals, birds, fish or shellfish.'' This revision
is needed as the current listed categories are too narrow to
provide effective protection to certain species of animals during
different times of year. For example, the agency may wish to
close a sensitive elk calving area during a specific time of
year, but are currently unable to do so because elk are not
``threatened or endangered, etc.'' The proposed revision would
remedy this situation.
Section 261.54 Forest Development Roads
Three changes are proposed to this section.
Paragraph (a) currently prohibits the use of any type of
vehicle upon the issuance of an order. This rule would be revised
by adding the words ``or possessing'' to the current text. In
many cases, local county ordinances prohibit the possession
of certain types of vehicles on lands either adjacent to or
within a sensitive area, for example, the possession of tracked
vehicles or modified off-road vehicles within a special wildlife
or waterfowl habitat nesting area. The addition would allow
a Regional Forester or Forest Supervisor to issue a specific
order that prohibits the possession of a certain class of vehicle,
if needed to be consistent with a Forest Land and Resource Management
Plan or to support a local ordinance.
Paragraph (c) currently prohibits using a road for commercial
hauling without a permit or written authorization upon the issuance
of an order. The rule would be revised by adding the words ``or
other commercial activities'' to the current text. Authorization
for commercial use of Forest development roads should not be
limited to hauling a product; other commercial use such as transporting
heavy equipment should also be subject to this requirement.
Finally, paragraph (f), which prohibits careless or reckless
driving, would be removed because, as previously noted, it is
proposed to make this a general prohibition in sec 261.12.
Section 261.58 Occupancy and Use
Paragraph (m) allows for the issuance of an order to prohibit
the ``discharge of a firearm, air rifle, or gas gun.'' Under
the proposed rule, this paragraph would be revised to read ``discharging
or possessing a firearm, air rifle, gas gun, or other device
capable of causing injury to persons or wildlife or capable
of causing property damage.'' For example, the addition of the
prohibition against ``possessing'' is necessary for wildlife
protection at certain times of the year on different national
forest units and for public safety in areas of higher visitor
use or when property would be easily damaged by firearms and
other devices shooting projectiles. The addition of ``or other
device'' is necessary to support the inclusion of devices, such
as starter pistols and crossbows, which can cause serious bodily
harm or death if used. And finally, the addition of ``capable
of causing injury to persons or wildlife or capable of causing
property damage'' is necessary to specify more precisely the
type of device to which the prohibition would apply.
Paragraph (bb) would be revised to adopt the new definition
of ``alcoholic beverage'' proposed at 36 CFR 261.2.
A new paragraph (dd) would be added to prohibit the storage
of personal property in any area outside of a national forest
developed recreation site when prohibited by an order. Similar
to the problem within developed recreation sites addressed by
proposed sec 261.14(r), is the ``staking out'' of popular sites
by users several weeks in advance of when they are to be occupied
for hunting or other activities. Often, other users desiring
to camp in the same area are unable to do so because of this
activity. This rule is proposed for Subpart B, because of the
site-specific nature of the problem and the need for flexibility
to prescribe different lengths of time for each area.
A new paragraph (ee) would be added to enable a Regional
Forester or Forest Supervisor to issue an order prohibiting
the possession, storage, or use of glass food or beverage containers.
The rule is proposed in light of serious safety hazards presented
by broken glass in heavily used beaches and swimming areas and
the need to prevent injuries from cuts to persons recreating
in these areas.
No other revisions are proposed to this section.
Part 262-Law Enforcement Support Activities
This part provides administrative rules pertaining to certain
operational matters affecting Forest Service law enforcement
programs and activities.
Section 262.1 Definitions
A new definition section would be added to provide for definitions
of ``Law Enforcement Officer'' and ``Special Agent.'' The definitions
are needed in the regulation to support the section on purchase
of evidence.
Existing sec 262.1 would be redesignated as sec 262.2.
Existing sec 262.2, which governs the purchase of information
in furtherance of investigations, would be revised and combined
with sec 262.3, which governs the purchase of evidence. This revision
is proposed in response to requests of several Forest Service
regions for a payment scale for purchase of information and
evidence that reflects the gravity of the offenses investigated,
such as violations of the National Forest System Drug Control
Act of 1986, as amended. For example, amounts that Special Agents
could be authorized to pay for information or evidence would
be raised from $200 and $400 respectively, to $500 for a single
transaction, with other increases or changes proposed for the
employees so listed. Existing paragraph (b) in both sections,
which states that payments cannot be made for the investigation
of petty offenses, would be removed. The agency's authority
to make payments for evidence and information was affirmed in
a decision of the Comptroller General dated April 29, 1971 (CG-
B-172259) and allows for payment to further any criminal investigation,
otwithstanding the classification of the offense.
Subpart B-Impoundments and Removals
The title of this subpart would be revised to read ``Administrative
Impoundments and Removals.'' This change would clarify that
the rules provide for administrative remedies that may be taken
by the Forest Service to impound and remove animals or personal
property on the National Forest System. Criminal law enforcement
procedures associated with impoundments and property seizures
made pursuant to arrests and searches are not covered by the
regulations and are contained in the Federal Rules of Criminal
Procedure for the United States District Courts and the Forest
Service Law Enforcement Handbook (FSH 5309.11).
No other revisions are proposed to this section.
Section 262.12 Impounding of Personal Property
Paragraph (d) would be revised to allow the Forest Service
to use un-redeemed or abandoned personal property if it is needed
for official use, rather than having to offer it for sale. The
authority for this proposed change is found in the Federal Property
and Administrative Services Act of 1949, as amended (40 U.S.C.
484(m)) and at 41 CFR part 101-48. In many cases, the conversion
of un-redeemed personal property to Government property can
provide a substantial cost savings to the agency.
Section 262.13 Removal of Obstructions
This section currently provides for the removal of vehicles
or other objects which create either an ``impediment or hazard
to the safety, convenience, or comfort of other users of the
National Forest System.'' The rule would be revised to include
a vehicle or other object ``which has been left in such a manner
that it impairs or may result in the impairment of any area
of the National Forest System or other areas under Forest Service
control.'' The revision is needed in light of increasing problems
associated with the abandonment of automobiles or other large
objects left as junk in popular undeveloped recreation areas
on the National Forest System.
No other revisions are proposed to this section.
Summary
In summary, the Forest Service proposes to amend its rules
governing Prohibitions and Law Enforcement Support Activities
in order to:
-Improve protection of public and their property, National Forest
System lands, waters, and other resources, and agency employees;
-Update the rules to reflect expanded Forest Service law enforcement
authority granted by statutory change;
-Make technical corrections and revisions due to the passage
of new laws and the promulgation of new rules in other parts
of this chapter; and
-Provide both the agency and United States Department of Justice
increased flexibility in prosecution options for certain offenses.
Interested persons are invited to submit comments and recommendations
regarding these proposed regulations. All comments received
will be considered in promulgation of the final rule. Respondents
should note that substantive comments are more helpful than
form letters or responses from questionnaires.
Regulatory Impact
This proposed rule has been reviewed under USDA procedures
and Executive Order 12866 on Regulatory Planning and Review.
It has been determined that this is not a significant rule.
This rule will not have an annual effect of $100 million or
more on the economy nor adversely affect productivity, competition,
jobs, the environment, public health or safety, nor State or
local governments. This rule will not interfere with an action
taken or planned by another agency nor raise new legal or policy
issues. Finally, this action will not alter the budgetary impact
of entitlements, grants, user fees, loan programs, or the rights
and obligations of recipients of such programs. Accordingly,
this proposed rule is not subject to OMB review under Executive
Order 12866.
Moreover, this proposed rule has been considered in light
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and
has been determined that this action will not have a significant
economic impact on a substantial number of small entities as
defined by that Act.
Executive Order 12630 for the Evaluation of Risk and Avoidance
of Unanticipated Takings directs all agencies to evaluate whether
certain proposed agency actions present a risk of effecting
a taking of private property. Section 2(a)(3) of the Order exempts
law enforcement actions from the requirements of the Executive
Order. Since this proposed action involves additions, and technical
and administrative changes, to prohibitions of activities on
or affecting National Forest System land and resources, visitors,
and employees, section 2(a)(3) applies and further analysis
under the Executive Order is unnecessary.
Regulatory Reform: Less Burdensome or More Efficient Alternatives
The Department of Agriculture is committed to carrying out
its statutory and regulatory mandates in a manner that best
serves the public interest. Therefore, where legal discretion
permits, the Department actively seeks to promulgate regulations
that promote economic growth, create jobs, are minimally burdensome,
and are easy for the public to understand, use or comply with.
In short, the Department is committed to issuing regulations
that maximize net benefits to society and minimize costs imposed
by those regulations. This principle is articulated in President
Bush's January 28, 1992, memorandum to agency heads, and in
Executive Orders 12291 and 12498. The Department applies this
principle to the fullest extent possible, consistent with law.
The Department has developed and reviewed this regulatory
proposal in accordance with these principles. Nonetheless, the
Department believes that public input from all interested persons
can be invaluable in ensuring that the final regulatory product
is minimally burdensome and maximally efficient. Therefore,
the Department specifically seeks comments and suggestions from
the public regarding any less burdensome or more efficient alternative
that would accomplish the purposes described in the proposal.
Comments suggesting less burdensome or more efficient alternatives
should be addressed to the agency as provided in this notice.
Controlling Paperwork Burdens on the Public
This proposed rule will not result in additional paperwork
not already required by law or approved for use. Therefore,
the review provisions of the Paperwork Reduction Act of 1980
(44 U.S.C. 3507) and implementing regulations at 5 CFR part
1320 do not apply.
Environmental Impact
This proposed rule would set forth the acts that are prohibited
on the National Forest System. This rule, in and of itself,
will not have environmental effects that need to be addressed
in compliance with the National Environmental Policy Act procedures.
Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180;
September 18, 1992) excludes from documentation in an environmental
assessment or impact statement ``rules, regulations, or policies
to establish Service-wide administration procedures, programs,
processes, or instructions.'' The agency's preliminary assessment
is that this rule falls within this category of actions and
that no extraordinary circumstances exist which would require
preparation of an environmental assessment or environmental
impact statement. A final determination will be made upon adoption
of the final rule.
List of Subjects in 36 CFR Parts 261 and 262
Crime, Law enforcement, and National forests.
Therefore, for the reasons set forth in the preamble, it
is proposed to amend chapter II of title 36 of the Code of Federal
Regulations as follows:
PART 261-PROHIBITIONS
1. The authority citation for part 261 is revised to read
as follows:
Authority: 7 U.S.C. 1011(f), 16 U.S.C. 472, 551, 559b-h,
1131(b), 1133(b)-(d)(1), 1246(i), 1281(d), 4601-6a(e), 18 U.S.C.
3559, 3571, 43 U.S.C. 1740, 1761.
Subpart A-General Prohibitions
2-3. Revise sec 261.1 to read as follows:
sec 261.1 Scope.
(a) The prohibitions in this part apply, except as otherwise
provided, when:
(1) An act or omission occurs in the National Forest System
or on a Forest development road or trail;
(2) An act or omission affects, threatens, or endangers property
of the United States administered by the Forest Service;
(3) An act or omission affects, threatens, or endangers:
(i) A person occupying or using the National Forest System
or a Forest development road or trail;
(ii) A person on account of or in the performance of official
duties, including the administration of the National Forest
System or a Forest development road or trail;
(4) An act of omission occurs within the designated boundaries
of a Forest Service administered component of the National Trails
System or the National Wild and Scenic Rivers System; or
(5) An act or omission affects, threatens, or endangers property
of any person on any lands or waters within the National Forest
System or a Forest development road or trail.
(b) Nothing in this part shall preclude activities that are
authorized by laws relating to the National Forest System and
that are conducted in compliance with regulations set forth
in this Chapter.
(c) Nothing in these rules and regulations shall be construed
to abrogate any other Federal laws or regulations or any applicable
State and local laws and regulations.
(d) Unless an offense set out in this part contains a term
(or terms) that includes intent in its meaning, intent is not
an element of any offense under this part.
4. Revise sec 261.1a to read as follows:
sec 261.1a Special use authorizations, contracts and plans of
operations.
The Chief, each Regional Forester, each Forest Supervisor,
and each District Ranger or equivalent officer may issue Special
use authorizations, award contracts, or approve plans of operations
authorizing the occupancy or use of a road, trail, area, lake,
or other part of the National Forest System in accordance with
authority which is delegated elsewhere in this chapter or in
the Forest Service Manual. These Forest officers may allow in
the authorizing document or approved plan of operations an act
or omission that would otherwise be a violation of a subpart
A or a subpart C regulation or a subpart B order.
5. Revise sec 261.1b to read as follows:
sec 261.1b Penalty.
The punishment for violating any prohibition of this part
shall be imprisonment of not more than six months or a fine
in accordance with the applicable provisions of 18 U.S.C. 3571,
or both, unless otherwise provided.
6. In sec 261.2, the introductory text is republished; the
definitions of ``Damaging'' and ``National Forest System'' are
revised; the term ``Operating plan'' is removed; and the following
definitions are added in appropriate alphabetical order to read
as follows:
sec 261.2 Definitions.
The following definitions apply to this part:
* * * * *
Alcoholic beverage means beer, wine, distilled spirits, and
any other beverage defined as such by State law.
* * * * *
Computer means an electronic, magnetic, optical, electrochemical,
or other high speed data processing device performing logical,
arithmetic, or storage functions, and includes any data storage
facility or communications facility directly related to or operating
in conjunction with such device, but such term does not include
an automated typewriter or typesetter, a portable hand held
calculator, or other similar device.
Contraband means any goods, merchandise, or other substance,
the possession or transportation of which is prohibited by either
Federal or State law.
Controlled substance means a drug or other substance or immediate
precursor included in schedules I, II, III, IV, or V or part
B of the Controlled Substance Act (21 U.S.C. 812) or a drug
or substance added to these schedules pursuant to the terms
of the Act, or as defined by State law.
Damaging means to injure, mutilate, deface, rut, gouge, cut,
chop, girdle, dig, excavate, kill, or in any way harm or disturb.
Endangered species means any species of plant or animal which
is designated as endangered by the Secretary of the Interior
or Commerce pursuant to 50 CFR 17.11 and 17.12.
* * * * *
Guiding means providing, for pecuniary remuneration or other
gain, services such as supervision, protection, education, training,
transportation, subsistence, or interpretation to individuals
or groups in their pursuit of a natural resource based outdoor
activity.
* * * * *
Intimidating means to abuse or threaten verbally or physically.
* * * * *
National Forest System means all national forest lands and
waters reserved or withdrawn from the public domain of the United
States, national forest lands and waters acquired through purchase,
exchange, donation, or other means, national grasslands and
land utilization projects and waters administered under Title
III of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1010-1012),
and other lands, waters, or interests therein administered by
the Forest Service or are designated for administration through
the Forest Service as a part of the System.
* * * * *
Outfitting means providing, for pecuniary remuneration or
other gain, any saddle or pack animal, vehicle or boat, tents
or camp gear, or similar supplies or equipment, except through
retail sale in the ordinary course of business.
* * * * *
Plan of operations means a plan of operations as provided
in 36 CFR part 228, subpart A, an operating plan as provided
in 36 CFR part 228, subpart C, or 36 CFR part 292, subpart D,
or a surface use plan of operations as provided in 36 CFR part
228, subpart E.
Scenic easement means any interest in land owned by the United
States which gives the Federal Government any right to control
the occupancy and use of land (including air space above such
land) in order to protect scenic and natural values or for any
other purposes authorized by law including public access. Scenic
easements shall include, but are not limited to, restrictive
covenants, deed reservations, conservation easements, reserved
interest deeds, and other partial interests in land by whatever
name given.
Sensitive species means a plant or animal species identified
by a Regional Forester for which population viability is a concern,
as evidenced by a significant current or predicted downward
trend in population numbers or density or a significant current
or predicted downward trend in habitat capability that would
reduce a species' existing distribution.
* * * * *
Threatened species means any plant or animal species which
is designated as threatened by the Secretary of the Interior
or Commerce at 50 CFR 17.11 and 17.12.
* * * * *
7. Revise sec 261.3 to read as follows:
sec 261.3 Interfering with agency functions.
The following are prohibited:
(a) Resisting, intimidating, endangering, assaulting, injuring,
or interfering with any Forest officer, volunteer, or human
resource program enrollee on account of or in the performance
of official duties including the administration of the National
Forest System or a Forest development road or trail.
(b) Giving any false, fictitious, or fraudulent report or
other information to any Forest officer knowing that such report
or other information contains false, fictitious, or fraudulent
statement or entry.
(c) Violating the lawful order of a Forest officer engaged
in the performance of official duties to maintain order or control
of public behavior during firefighting, law enforcement, or
other operations.
(d) Impersonating or posing as a Forest officer, volunteer
or human resource program enrollee.
8. Revise sec 261.4 to read as follows:
sec 261.4 Public behavior.
The following are prohibited:
(a) Engaging in fighting or any other violent behavior.
(b) Using language, an utterance, or gesture, or engaging
in a display or act that is:
(1) Obscene;
(2) Physically threatening or menacing; or
(3) Done in a manner that is likely to inflict injury or
incite an immediate breach of the peace;
and with intent to cause public alarm, nuisance, jeopardy, or
violence, or knowingly or recklessly creating a risk thereof.
(c) Possessing, selling, cultivating, dispensing, or bartering
for any controlled substance, alcoholic beverage, or contraband
in violation of State or Federal law.
(d) Causing public inconvenience, annoyance, or alarm by
making unreasonably loud noise.
(e) Being under the influence of any controlled substance
or alcoholic beverage in violation of State or Federal law.
(f) Damaging, removing, transporting, or possessing any thing
of value belonging to any person without permission.
(g) Intimidating, endangering, assaulting, injuring, or interfering
with any person.
9. In sec 261.5, the introductory text is republished and paragraph
(b) is revised to read as follows:
sec 261.5 Fire.
The following are prohibited:
(a) * * *
(b) Firing or possessing any tracer bullet or incendiary
ammunition.
* * * * *
10. In sec 261.6, the introductory text is republished; paragraphs
(a), (c), (d), (e), and (h) are revised and a new paragraph
(i) is added to read as follows:
sec 261.6 Timber and other forest products.
The following are prohibited:
(a) Cutting or otherwise damaging any tree, or other forest
product, except as authorized by a special use authorization,
timber sale contract, permit, approved plan of operations, or
Federal law or regulation.
(b) * * *
(c) Failing, when required by the timber sale contract or
permit, to bring timber or other forest products cut under a
contract or permit to a place designated for scaling or other
means of recording by a forest officer, or removing timber or
other forest product from such designated place prior to scaling
or other means of recording.
(d) Stamping, marking with paint, or otherwise identifying
any tree or other forest product in a manner similar to that
employed by Forest officers to mark or designate a tree or any
other forest product for cutting, removing, or leaving uncut.
(e) Loading, removing, transporting, or possessing timber
or any other forest products acquired under any permit or timber
sale contract, unless such product is identified as required
by the permit or contract.
* * * * *
(h) Removing any timber, tree, or other forest product, except
as authorized by special use authorization, timber sale contract,
permit, approved plan of operations, or Federal law or regulation.
(i) Altering, adding, moving, or removing any stamp, brand,
paint, Forest Service timber sale boundary marker or tag, or
other identification on any tree, or other forest product previously
marked or surveyed by a Forest officer, except as authorized
by a Forest officer, special use authorization, timber sale
contract, permit, approved plan of operations, or Federal law
or regulation.
11. In sec 261.7, the introductory text is republished and
paragraph (a) is revised to read as follows:
sec 261.7 Livestock.
The following are prohibited:
(a) Unauthorized livestock within the National Forest System
or on other lands under Forest Service administrative control.
* * * * *
12. In sec 261.8, the introductory text is republished and
paragraph (a) is revised to read as follows:
sec 261.8 Fish and wildlife.
The following are prohibited to the extent that Federal or
State law is violated:
(a) Hunting, trapping, fishing, catching, molesting, killing,
possessing, transporting, buying, selling, bartering, or offering
to buy, sell, or barter any kind of wild animal, bird, fish,
shellfish, or parts thereof, or taking the eggs of any bird
or fish.
* * * * *
13. Revise sec 261.9 to read as follows:
sec 261.9 Property administered by the Forest Service.
Except as provided by special use authorization, contract,
approved plan of operations, or Federal law or regulation, the
following are prohibited:
(a) Disturbing, damaging, excavating, digging, removing,
transporting, possessing, buying, selling, bartering, or offering
to buy, sell, or barter, any natural feature or other property
of the United States.
(b) Disturbing, damaging, removing, transporting, possessing,
buying, selling, bartering, or offering to buy, sell, or barter,
any plant that is classified as a threatened, endangered, or
sensitive species.
(c) Disturbing, damaging, excavating, digging, removing,
transporting, possessing, buying, selling, bartering, or offering
to buy, sell, or barter, any fossil or other paleontological
resource; or prehistoric, historic, or archaeological resource,
structure, site, artifact, or property.
(d) Entering any building, structure, or enclosed area owned
or controlled by the United States, without permission of a
Forest officer, when such building, structure, or enclosed area
is not open to the public.
(e) Using any pesticide except for personal use as an insect
repellent or other minor uses.
(f) Possessing, duplicating, using, or allowing the use of
any Forest Service lock or key without permission of a Forest
officer.
(g) Accessing or using any computer system or computer network
owned, leased, or controlled by the Forest Service without permission
of a Forest officer.
(h) Using, damaging, destroying, altering, copying, or deleting
information, data, or programs stored in any computer system
or computer network owned, leased, or controlled by the Forest
Service without permission of a Forest officer.
(i) Performing or allowing to be performed an action prohibited
by a scenic easement owned by the United States, or failing
to perform an action required by such an easement.
(j) Removing any mineral or mineral material.
14. Revise sec 261.10 to read as follows:
sec 261.10 Occupancy and use.
Except as provided by special use authorization, contract,
approved plan of operations, or federal law or regulation, the
following are prohibited:
(a) Constructing, placing, or maintaining any kind of road,
trail, structure, fence, enclosure, communication equipment,
or other improvement on the National Forest System or facilities
thereon.
(b) Taking possession of, occupying, residing upon, or otherwise
using the National Forest System or facilities thereon for any
purpose.
(c) Selling, leasing, renting, or offering for sale, lease,
or rent any kind of merchandise, service, or equipment, or conducting
any kind of work activity or service.
(d) Discharging a firearm or using any other implement capable
of taking human life, causing injury, or damaging property:
(1) in or within 150 yards of a residence, building, campsite,
developed recreation site or occupied area;
(2) from a vehicle; or
(3) in any manner or place whereby any person or property
is exposed to injury or damage as a result of such discharge
or use.
(e) Abandoning any personal property.
(f) Placing a vehicle or other object in such a manner that
it is an impediment or hazard to the safety or convenience of
any person.
(g) Disseminating, posting, placing, or erecting any paper,
notice, advertising material, sign, handbill, petition, or similar
written and/or graphic matter.
(h) Operating or using in or near a campsite, developed recreation
site, or over an adjacent body of water, any device which produces
noise, such as a radio, television, musical instrument, motor,
or engine, in such a manner and at such time so as to unreasonably
disturb any person.
(i) Operating or using a public address system, whether fixed,
portable, or vehicle mounted, in or near a campsite or developed
recreation site or over an adjacent body of water.
(j) Use or occupancy of the National Forest System or facilities
thereon when authorization is required.
(k) Violating any term or condition of a special use authorization,
contract, or approved plan of operations.
(l) Failing to stop a vehicle when directed to do so by a
Forest officer.
(m) Failing to pay any special use fee or other charges as
required.
(n) Paying for any product, special use authorization, fee,
or service by check with insufficient funds.
(o) Charging, collecting, or attempting to charge or collect
a fee or thing of value from any person lawfully using the National
Forest System.
(p) Failing to display a special use authorization, license,
tag or other document when such display is required.
(q) Outfitting on, or guiding on the National Forest System.
(r) Undertaking any activity in contravention of prohibitions
or requirements of a scenic easement.
15. In sec 261.11, the introductory text is republished and
paragraph (b) is revised to read as follows:
sec 261.11 Sanitation.
The following are prohibited:
(a) * * *
(b) Depositing, leaving, or causing to be left, any refuse,
debris, trash, or litter on the National Forest System or facilities
thereon not designated for that purpose.
* * * * *
16. In sec 261.12, the introductory text is republished, paragraph
(a) is revised and new paragraphs (e) through (g) are added
to read as follows:
sec 261.12 Forest development roads and trails.
The following are prohibited:
(a) Violating the load, weight, height, length, or width
limitations prescribed by State law except by contract, special
use authorization, approved plan of operations, written agreement
or by order issued under sec 261.54 of this part.
* * * * *
(e) Operating any vehicle in violation of State law, posted
sign or traffic device.
(f) Operating a vehicle carelessly, recklessly, or in a manner
or at a speed that would endanger or be likely to endanger any
person or property.
(g) Operating or riding in any vehicle on a Forest development
road without wearing seatbelts, if provided by the manufacturer.
17. Revise sec 261.13 to read as follows:
sec 261.13 Use of vehicles off roads.
It is prohibited to operate any vehicle off Forest development,
State or County roads:
(a) Without a valid operator's license or permit in possession
if required by State law.
(b) Without an operable braking system.
(c) From one-half hour after sunset to one-half hour before
sunrise unless equipped with working head and tail lights.
(d) In violation of any applicable noise emission standard
established by any Federal or State agency.
(e) Creating excessive or unusual smoke.
(f) Carelessly, recklessly, or in a manner or at speed that
would endanger or be likely to endanger any person or property.
(g) In a manner which damages the land or vegetative resources,
or injures or unreasonably disturbs wildlife.
(h) In violation of State law established for vehicles used
off roads.
(i) Without displaying a valid vehicle license or possessing
a vehicle registration if required by State law.
18. In sec 261.14, the introductory text is republished and
a new paragraph (r) is added to read as follows:
sec 261.14 Developed recreation sites.
The following are prohibited:
* * * * *
(r) Reserving any portion of the site for another person
or party without permission of a Forest officer.
19. Revise sec 261.15 to read as follows:
sec 261.15 Admission, recreation use, and special recreation
permit fees.
Failure to comply with posted fee payment instructions for
any fee established for admission or entrance to, or use of,
a site, facility, equipment, or service furnished by the United
States is prohibited. A violation of this section is an infraction
and no sentence of imprisonment is authorized.
20. Add a new sec 261.22 to read as follows:
sec 261.22 Buildings used in furtherance of the administration
of the National Forest System or Forest Service Programs.
The following are prohibited in buildings owned or leased
by the Forest Service:
(a) Engaging in conduct which impedes or disrupts the performance
of official duty or the safety of Government employees.
(b) Engaging in conduct which prevents the general public
from obtaining the services provided by the Government or its
agents or contractors on the property.
(c) Failing to submit packages, briefcases, or other containers
for inspection, when required, prior to entrance.
(d) Carrying, possessing, depositing, or placing firearms,
other dangerous or deadly weapons, explosives, or items intended
to be used to fabricate an explosive or incendiary device, unless
authorized by special use authorization, contract, approved
plan of operations, or Federal law or regulation.
Subpart B-Prohibitions in Areas Designated by Order
21. In sec 261.50, revise paragraph (e)(1) as follows:
sec 261.50 Orders.
* * * * *
(e) * * *
(1) Persons who have specific authorization for the otherwise
prohibited act or omission by virtue of a special use authorization,
contract, approved plan of operations, or Federal law or regulation.
* * * * *
22. In sec 261.53, the introductory text is republished and
paragraph (a) is revised to read as follows:
sec 261.53 Special closures.
When provided by an order, it is prohibited to go into or
be upon any area which is closed for the protection of:
(a) plants, animals, birds, fish, or shellfish.
* * * * *
23. In sec 261.54, the introductory text is republished, paragraph
(f) is removed and paragraphs (a) and (c) are revised to read
as follows:
sec 261.54 Forest development roads.
When provided by an order, the following are prohibited:
(a) Using or possessing any type of vehicle prohibited by
the order.
(b) * * *
(c) Using a road for commercial hauling or other commercial
activities without a special use authorization or written authorization.
(d) * * *
(e) * * *
24. Amend sec 261.58 by revising paragraphs (m) and (bb) and
by adding paragraphs (dd), and (ee) to read as follows:
sec 261.58 Occupancy and use.
When provided by an order, the following are prohibited:
* * * * *
(m) Discharging or possessing a firearm, air rifle, gas gun,
or other device capable of causing injury to persons or wildlife
or capable of causing property damage.
* * * * *
(bb) Possessing an alcoholic beverage.
(cc) * * *
(dd) Storing, placing, or leaving personal property unattended
outside of developed recreation sites for more than the length
of time specified by the order.
(ee) Possessing, storing, or using any glass food or beverage
containers.
PART 262-LAW ENFORCEMENT SUPPORT ACTIVITIES
1. The authority citation for part 262 is revised to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472; 16 U.S.C. 551;
16 U.S.C. 559b-h; 40 U.S.C. 484(m); CG-B-172259.
secsec 262.2 and 262.3 [Removed]
sec 262.1 [Redesignated as sec 262.2]
2. Remove secsec 262.2 and 262.3, redesignate sec 262.1 as sec 262.2,
and add new secsec 262.1 and 262.3 to read as follows:
sec 262.1 Definitions.
The following definitions apply to this subpart:
Law Enforcement Officer means an employee of the Forest
Service in other than the Criminal Investigating series, GS-
1811, who is authorized by the Washington Office, Director for
Law Enforcement and Investigations to conduct investigations,
make arrests with or without a warrant or process, issue violation
notices, execute and serve search and arrest warrants, carry
firearms for law enforcement purposes, and perform other duties
as directed in connection with the enforcement or administration
of all laws, rules, and regulations in which the Department
of Agriculture, Forest Service, is or may be a party of interest.
Special Agent means an employee of the Forest Service in
the Criminal Investigating series, GS-1811, who is authorized
by the Chief to perform all duties conferred upon such officer
under all laws and regulations administered by the Forest Service
including the authority to conduct investigations, to execute
and serve search and arrest warrants, to serve orders, subpoenas,
or other judicial processes as directed, to carry firearms,
make arrests, issue violation notices, and perform other duties
as directed in connection with the enforcement or administration
of all laws, rules and regulations in which the Department of
Agriculture, Forest Service, is or may be a party of interest.
sec 262.3 Purchase of information or evidence in furtherance
of investigations.
(a) Approval of payments. The following Forest Service officials
may make or approve payments for purchase of information or
evidence to further law enforcement investigations in the amount
shown for each transaction as follows:
(1) Law Enforcement Officers ..................up to $250.00
(2) Special Agents ............................up to $500.00
(3) Regional Special Agents in Charge .......up to $1,000.00
(4) Director for Law Enforcement and Investigations
.........................................up to $5,000.00
(5) Chief, for amounts exceeding ..................$5,000.00
(b) [Reserved]
Subpart B-Administrative Impoundments and Removals
3. Revise the title of subpart B as set out above.
4. Amend sec 262.12 by revising paragraph (d) to read as follows:
sec 262.12 Impounding of personal property.
* * * * *
(d) If the personal property is not redeemed on or before
the date fixed for its disposition, it shall become property
of the United States. Such property may be retained by the Forest
Service for use in on-going management activities, sold at public
sale to the highest bidder, or otherwise disposed of. When personal
property is sold pursuant to this regulation, the Forest officer
making the sale shall furnish the purchaser with a bill of sale
or other written instrument evidencing the sale.
5. Revise sec 262.13 to read as follows:
sec 262.13 Removal of obstructions.
A Forest officer may remove or cause to be removed, to a
more suitable place, a vehicle or other object which is an impediment
or hazard to the safety, convenience, or comfort of any person,
or which has been left in such a manner that it impairs or may
result in the impairment of any areas of the National Forest
System or other lands under Forest Service control.
Dated: January 6, 1994.
David G. Unger,
Associate Chief.
[FR Doc. 94-3358 Filed 2-15-94; 8:45 am]
BILLING CODE 3410-11-M