[Federal Register Volume 59, Number 32 (Wednesday, February 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3358]
[[Page Unknown]]
[Federal Register: February 16, 1994]
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Part III
Department of Agriculture
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Forest Service
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36 CFR Parts 261 and 262
Prohibitions: Law Enforcement Support Activities; Proposed Rule
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.
Secs. 262.2 and 262.3 [Removed]
Sec. 262.1 [Redesignated as Sec. 262.2]
2. Remove Secs. 262.2 and 262.3, redesignate Sec. 262.1 as
Sec. 262.2, and add new Secs. 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