[Federal Register Volume 73, Number 138 (Thursday, July 17, 2008)]
[Proposed Rules]
[Pages 41003-41007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16129]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 262

RIN 0596-AB61


Law Enforcement Support Activities

AGENCY: Forest Service, USDA.

ACTION: Proposed rule, request for comment.

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SUMMARY: The Forest Service is proposing to revise regulations at 36 
CFR part 262, Subparts A and B, regarding removal of obstructions, 
impoundment of personal property, payment of rewards, and payment for 
information or evidence in furtherance of an investigation. The 
proposed revisions to subpart A would clarify and concisely state the 
Agency's authority for setting reward amounts and would streamline the 
rules regarding payment for information and evidence. The proposed 
revisions to Subpart B would shorten the timeframe for impoundment 
procedures, change the posting requirement, and allow the Forest 
Service to retain unclaimed personal property for administrative use.

DATES: Comments on this proposed rule must be received in writing by 
September 15, 2008.

ADDRESSES: Send written comments to Forest Service, U.S. Department of 
Agriculture, Attention: Director, Law Enforcement and Investigations 
Staff, 1400 Independence Avenue, SW., Washington, DC 20250-1103 or by 
facsimile to (703) 605-5112. Comments also may be submitted via the 
world wide web/Internet at http://www.regulations.gov. It is not 
necessary to send by regular mail comments that are sent by electronic 
mail or by facsimile. Comments should be confined to issues pertinent 
to the proposed rule. Where possible, reference should be made to the 
specific section being addressed, and an explanation should be given 
for any suggested changes.
    All comments, including names and addresses when provided, will be 
placed in the record and will be available for public inspection and 
copying. Comments may be inspected in the Office of the Director, Law 
Enforcement and Investigations Staff, Room 1015, 1621 North Kent 
Street, Arlington, Virginia, between 8:30 a.m. and 4:30 p.m., Monday 
through Friday. Visitors are encouraged to call (703) 605-4690 to 
facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: John Carpenter, Law Enforcement and 
Investigations Staff, (703) 605-4731. Individuals who use 
telecommunication devices for the deaf (TDD) may call the Federal 
Information Relay Service at (800) 877-8339 between 8 a.m. and 8 p.m., 
Monday through Friday.

SUPPLEMENTARY INFORMATION:

1. Background

    On February 16, 1994, the Forest Service published a proposed rule 
amending 36 CFR parts 261 and 262 (59 FR 7880). The Agency considered 
comments received on the 1994 proposed rule in developing this proposed 
rule to amend 36 CFR part 262. At this time, the Agency is not 
proposing revisions to 36 CFR part 261.
    Forest Service regulations at 36 CFR part 262, in effect since 
1977, govern payment of rewards, payment for information or evidence in 
furtherance of an investigation, impoundment of property, and removal 
of obstructions from National Forest System lands. Most of the comments 
received on the 1994 proposal to amend part 262

[[Page 41004]]

involved the meaning of terms used and proposed revisions that would 
permit the Agency to remove objects that are an impediment or a safety 
hazard to users of National Forest System lands.
    The Forest Service also reviewed 36 CFR part 262 to determine its 
applicability in view of changing laws, resource conditions, and other 
factors affecting management of National Forest System lands. For 
example, the structure of the Forest Service's Law Enforcement and 
Investigations staff changed in 1994 to provide for the Director of the 
Law Enforcement and Investigations staff to report directly to the 
Chief, rather than to the Deputy Chief for Administration. Accordingly, 
this proposed rule would vest the authority to make or approve payment 
of rewards at 36 CFR 262.2 and payment for information or evidence in 
furtherance of an investigation at 36 CFR 262.3 with the Director of 
the Law Enforcement and Investigations staff. The proposed rule also 
would revise limits on maximum amounts and approval authority for 
payment of rewards.

2. Section-by-Section Analysis

36 CFR Part 262, Subpart A

    Section 262.1 Definitions. This section would contain definitions 
of terms pertaining to the law enforcement support activities in 36 CFR 
part 262, including ``camping equipment,'' ``damaging,'' ``forest 
officer,'' ``law enforcement personnel,'' ``unauthorized livestock,'' 
and ``vehicle.'' This section would replace the current Sec.  262.1, 
which would be redesignated as Sec.  262.2.
    Section 262.2 Rewards in connection with fire or property 
prosecutions. The Forest Service proposes to redesignate Sec.  262.1, 
``Rewards in connection with fire or property prosecution,'' as Sec.  
262.2. Paragraphs (a)(1) and (a)(2) of current Sec.  262.1 set reward 
amounts for information leading to the arrest and conviction of any 
person for setting on fire or causing to be set on fire any timber, 
underbrush, or grass on National Forest System or nearby lands. The 
reward amounts vary depending on whether the fire was willfully set. 
Paragraph (a)(3) of current Sec.  262.1 sets a reward amount for 
information leading to the arrest and conviction of any person charged 
with destroying or stealing any property of the United States. The 
proposed revisions to paragraphs (a)(1) through (a)(3) would establish 
new reward payment limitations.
    Paragraph (a)(4) of current Sec.  262.1 authorizes payment of a 
reward for information or evidence in furtherance of an investigation 
of damage to or theft of all or part of a Pacific Yew tree. This 
provision was added in 1991 (56 FR 29182, June 26, 1991) to address an 
increase in theft of and damage to the Pacific Yew. At the time, the 
Pacific Yew was the only known source of the chemical taxol, which is 
used to treat cancer. Since taxol is now synthetically produced, the 
demand for the Pacific Yew no longer exists, and the tree is no longer 
being damaged or stolen. Consequently, the Forest Service is proposing 
to remove paragraph (a)(4) from current Sec.  262.1.
    The Agency is proposing to revise paragraph (b) of current Sec.  
262.1 to contain a cross-reference to 36 CFR 296.17, which, pursuant to 
Section 8 of the Archaeological Resources Protection Act (ARPA) (16 
U.S.C. 470gg), authorizes payment of a reward from a criminal or civil 
penalty collected under Section 6 or 7 of ARPA (16 U.S.C. 470ee or 
470ff) for information or evidence leading to the criminal conviction 
or civil liability of the person who paid the penalty.
    Paragraph (e) of current Sec.  262.1 states: ``Applications for 
reward should be forwarded to the Regional Forester, Research Director, 
or Area Director who has responsibility for the land or property 
involved in the trespass.'' The proposed rule would amend paragraph (e) 
to read: ``Applications for a reward should be forwarded to the special 
agent in charge who has responsibility for investigation of the 
violation of law.'' The Agency is proposing to replace ``trespass'' 
with ``violation of law'' because ``trespass'' does not encompass the 
violations of law enumerated in that section.
    Section 262.3 Payment for information or evidence in furtherance of 
investigations. For simplicity and clarity, the Forest Service is 
proposing to combine Sec.  262.2, ``Purchase of information in 
furtherance of investigations,'' and Sec.  262.3, ``Purchase of 
evidence in furtherance of investigations'' into Sec.  262.3, and 
rename it ``Payment for information or evidence in furtherance of 
investigations.'' Proposed new paragraph (a), ``Approval of payment,'' 
would establish new dollar limits and delegations of authority to the 
Chief of the Forest Service for approval of payment for information or 
evidence in furtherance of an investigation.

36 CFR Part 262, Subpart B

    The current heading for this subpart is ``Impoundments and 
Removals.'' The Agency is proposing to revise the heading for Subpart B 
to read ``Administrative Impoundment and Removal.'' This proposed 
revision would clarify that impoundment and removal under 36 CFR part 
262, Subpart B, of animals or personal property on National Forest 
System lands are administrative remedies governed by Agency 
regulations, as opposed to impoundment and seizure of property pursuant 
to arrests and searches, which are governed by the Federal Rules of 
Criminal Procedure for the United States District Courts.
    Section 262.12 Impoundment of personal property. The current 
regulation sets out the procedure for impounding property that is on 
National Forest System lands without permission or in violation of law. 
Paragraph (b) of this section states:

    In the event the local Forest officer does not know the name and 
address of the owner, impoundment may be effected at any time 15 
days after the date a notice of intention to impound the property in 
trespass is first published in a local newspaper and posted at the 
county courthouse and in one or more local post offices. A copy of 
this notice shall also be posted in at least one place on the 
property or in proximity thereto.

    The Forest Service is proposing to revise paragraph (b) to allow 
impoundment 72 hours after a trespass is discovered and to eliminate 
the posting requirements in the local newspaper, at the county 
courthouse, and at local post offices. This revision would make the 
Forest Service's regulations consistent with the regulations of other 
Federal land management agencies and would allow timely removal of 
property in trespass, thereby protecting National Forest System lands 
and resources.
    Paragraph (d) of this section states, ``If the personal property is 
not redeemed on or before the date fixed for its disposition, it shall 
be sold by the Forest Service at public sale to the highest bidder.'' 
The Forest Service is proposing to revise paragraph (d) to give the 
Agency the option to retain unclaimed personal property for official 
use, as provided under the Federal Property and Administrative Services 
Act (40 U.S.C. 484(m)), rather than having to offer the property for 
sale. In many cases, the cost of selling the property exceeds its 
value, and retention of unclaimed personal property for administrative 
use by the Forest Service could result in substantial savings to the 
public. The Agency also is proposing to revise paragraph (d) to state, 
per existing authority, that the Federal Government will bill the 
property owner for costs associated with impoundment, removal, and 
storage.
    Section 262.13 Removal of obstructions. This section currently

[[Page 41005]]

provides for removal of vehicles or other objects that create an 
``impediment or hazard to the safety, convenience, or comfort of other 
users of the National Forest System.'' Current Sec.  262.13 allows a 
forest officer to remove or have removed to a more suitable place a 
vehicle or other object that is an impediment or hazard to the safety, 
convenience, or comfort of other National Forest users. The proposed 
revision to Sec.  262.13 would add the authority to remove vehicles or 
other objects that are abandoned or vandalized. This proposed revision 
would address the increasing number of automobiles and other large 
objects being left on National Forest System lands. These abandoned 
objects need to be removed because they invite vandalism and are 
unsightly.

3. Regulatory Certifications

Environmental Impact

    This proposed rule would revise law enforcement regulations 
governing certain activities on National Forest System lands. Section 
31.1b of Forest Service Handbook 1909.15 (57 FR 43180, September 18, 
1992) excludes from documentation in an environmental assessment or 
environmental impact statement rules, regulations, or policies to 
establish servicewide administrative procedures, program processes, or 
instructions. The Agency's assessment is that this proposed 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.

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866 on regulatory planning and review, as 
amended by E.O. 13422. It has been determined that this is not a 
significant rule. This rule would not have an annual effect of $100 
million or more on the economy, nor would it adversely affect 
productivity, competition, jobs, the environment, public health or 
safety, or state or local governments. This proposed rule would not 
interfere with an action taken or planned by another agency, nor would 
it raise new legal or policy issues. Finally, this proposed rule would 
not alter the budgetary impact of entitlements, grants, user fees, or 
loan programs or the rights and obligations of beneficiaries of those 
programs. Accordingly, this proposed rule is not subject to review by 
the Office of Management and Budget under E.O. 12866. Moreover, this 
proposed rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.). The proposed rule would amend 
Forest Service law enforcement regulations governing removal of 
obstructions, impoundment of personal property, and payment of rewards 
and payments for information and evidence in furtherance of an 
investigation and would not impose any requirements on the public. 
Accordingly, it has been determined that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as defined by that Act because the proposed rule would not 
impose record-keeping requirements on them; it would not affect their 
competitive position in relation to large entities; and it would not 
affect their cash flow, liquidity, or ability to remain in the market.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Forest Service has considered this proposed rule under the 
requirements of E.O. 13132 on federalism. The Agency has determined 
that the proposed rule conforms with the federalism principles set out 
in this E.O.; would not impose any compliance costs on the States; and 
would not have substantial direct effects on the States, on the 
relationship between the Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, the Agency has determined that no further 
determination of federalism implications is necessary at this time. 
Moreover, this proposed rule would not have tribal implications per 
E.O. 131175, Consultation and Coordination with Indian Tribal 
Governments; therefore, advance consultation with tribes is not 
required in connection with this proposed rule.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria in E.O. 12630. It has been determined that this 
proposed rule does not pose the risk of a taking of private property.

Civil Justice Reform

    This proposed rule has been reviewed under E.O. 12988 on civil 
justice reform. After adoption of this proposed rule, (1) all State and 
local laws and regulations that conflict with this proposed rule or 
that impede its full implementation would be preempted; (2) no 
retroactive effect would be given to this proposed rule; and (3) it 
would not require administrative proceedings before parties may file 
suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Agency has assessed the effects of this proposed 
rule on State, local, and tribal governments and the private sector. 
This proposed rule would not compel the expenditure of $100 million or 
more by any State, local, or tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the Act is not 
required.

Energy Effects

    This proposed rule has been reviewed under E.O. 13211 of May 18, 
2001, Actions Concerning Regulations That Significantly Affect Energy 
Supply. The Agency has determined that this proposed rule does not 
constitute a significant energy action as defined in the E.O.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply.

List of Subjects in 36 CFR Part 262

    Investigations, Law enforcement, National forests, Seizures and 
forfeitures.
    Therefore, for the reasons set forth in the preamble, the Forest 
Service proposes to amend part 262 of Title 36 of the Code of Federal 
Regulations as follows:

PART 262--LAW ENFORCEMENT SUPPORT ACTIVITIES

    1. Revise the authority citation to part 262 to read as follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 470ee, 470ff, 470gg, 472, 
551, 559a; 40 U.S.C. 484(m).

    2. Revise subpart A to read as follows:

Subpart A--Rewards and Payments

Sec.
262.1 Definitions.
262.2 Rewards in connection with fire or property prosecutions.
262.3 Payment for information or evidence in furtherance of 
investigations.

[[Page 41006]]

262.4 Audit of expenditures.
262.5 Disposal of purchased property.

Subpart A--Rewards and Payments


Sec.  262.1  Definitions.

    The following definitions apply to Subparts A and B:
    Camping equipment. Personal property used in or suitable for 
camping, including any vehicle used for transportation and all 
equipment in possession of a person camping, other than food and 
beverages.
    Damage. To injure, mutilate, deface, destroy, cut, chop, girdle, 
dig, excavate, kill, or in any way harm or disturb.
    Forest officer. An employee of the Forest Service.
    Law enforcement personnel. An employee of the Forest Service who is 
a special agent, law enforcement officer, or reserve law enforcement 
officer.
    National Forest System. As defined in the Forest Rangeland 
Renewable Resources Planning Act, the ``National Forest System'' 
includes all National Forest lands reserved or withdrawn from the 
public domain of the United States, all National Forest lands acquired 
through purchase, exchange, donation, or other means, the National 
Grasslands and land utilization projects administered under Title III 
of the Bankhead-Jones Farm Tenant Act (50 Stat. 525, 7 U.S.C. 1010-
1012), and other lands, waters or interests therein which are 
administered by the Forest Service or are designated for administration 
through the Forest Service as a part of the system.
    Unauthorized livestock. Any cattle, sheep, goat, hog, or equine 
that is not authorized by permit to be on National Forest System lands, 
other than a wild, free-roaming horse or burro as defined in 36 CFR 
222.20(b)(13); pack and saddle stock used for noncommercial recreation, 
travel, or occasional trips; and livestock hauled on an authorized road 
or trail without an overnight stop on National Forest System lands.
    Vehicle. Any device in, upon, or by which any person or property 
may be transported, including any frame, chassis, or body of any motor 
vehicle, except devices used exclusively upon stationary rails or 
tracks.


Sec.  262.2  Rewards in connection with fire or property prosecutions.

    (a) Law enforcement personnel may pay up to $50,000 as a reward for 
information or evidence leading to the conviction of any person for:
    (1) Willfully or maliciously setting on fire or causing to be set 
on fire any timber, underbrush, or grass on National Forest System 
lands, or on non-National Forest System lands if the fire endangers or 
injures National Forest System lands or users;
    (2) Kindling or causing to be kindled a fire on National Forest 
System lands or on non-National Forest System lands if the fire 
endangers or injures National Forest System lands or users; or
    (3) Destroying, damaging, or stealing any property of the United 
States.
    (b) See 36 CFR 296.17 for direction on payment of a reward from a 
criminal or civil penalty collected under Section 6 or 7 of the 
Archaeological Resources Protection Act (16 U.S.C. 470ee or 470ff) for 
information or evidence leading to the criminal conviction or civil 
liability of the person who paid the penalty.
    (c) Officers and employees of the United States Department of 
Agriculture may not receive rewards under this section.
    (d) Submit applications for a reward to the special agent in charge 
who has responsibility for the investigation involved in the violation 
of law no later than 3 months after the date of conviction of an 
offender. Applications submitted after that date shall not be 
considered. To allow all claimants to present their claims within the 
prescribed limit, the special agent in charge shall not take action 
with respect to rewards regarding an investigation until 3 months after 
the date of conviction of an offender.
    (e) The special agent in charge reserves the right to refuse 
payment of a reward when it is determined that collusion or improper 
methods were used to secure the conviction involved.
    (f) The special agent in charge reserves the right to pay only one 
reward where several persons have been convicted of the same offense or 
where one person has been convicted of several offenses, but may, 
depending on the circumstances, determine that payment of a reward for 
each conviction is justified.


Sec.  262.3  Payment for information or evidence in furtherance of 
investigations.

    (a) Law enforcement personnel may pay for information or evidence 
in furtherance of investigations of felonies and misdemeanors related 
to Forest Service administration.
    (1) Criminal investigators in the GS-1811 series and other law 
enforcement personnel designated by the Chief of the Forest Service, 
Director of the Law Enforcement and Investigations staff, or special 
agent in charge, may, without prior approval, pay up to $1,000 for 
information or evidence under this section.
    (2) Payments over $1,000 and up to $5,000 require prior written 
approval from the special agent in charge.
    (3) Payments over $5,000 and up to $10,000 require prior written 
approval from the Director of the Law Enforcement and Investigations 
staff.
    (4) Payments over $10,000 require prior written approval from the 
Chief of the Forest Service.
    (b) Limitations. Purchase of information or evidence under this 
section is restricted to furthering investigations of felony and 
misdemeanor violations. Payments for information or evidence in 
furtherance of investigations of infractions are not authorized under 
this section. Employees of the United States Department of Agriculture 
may not receive payments under this section.
* * * * *
    3. Revise the heading to Subpart B to read as follows:

Subpart B--Administrative Impoundment and Removal

* * * * *
    4. Revise the heading to Sec.  262.11 to read as follows:


Sec.  262.11  Impoundment of dogs.

* * * * *
    5. In Sec.  262.12 revise the heading and paragraphs (b) and (d) to 
read as follows:


Sec.  262.12  Impoundment of personal property.

* * * * *
    (b) If the local forest officer does not know the name and address 
of the owner of property in trespass, impoundment may be effected at 
any time 72 hours after a notice of intention to impound the property 
in trespass is posted in at least one place in the vicinity of the 
property.
* * * * *
    (d) The owner of impounded property may redeem it by the date set 
for its disposition, but shall remain liable for all costs associated 
with its impoundment, removal, transportation, and storage. Impounded 
property that is not redeemed by the date set for its disposition shall 
become the property of the United States and may be retained by the 
Forest Service for official use, sold at public sale to the highest 
bidder, or otherwise disposed of. When impounded property is sold, the 
forest officer conducting the sale shall furnish the purchaser with a 
bill of sale or other written instrument evidencing the sale. The 
original owner shall remain liable for all costs associated with 
impoundment, removal, transportation, and storage of the property, 
minus any

[[Page 41007]]

amount received from the sale of the property.
* * * * *
    6. Revise Sec.  262.13 to read as follows:


Sec.  262.13  Removal of obstructions.

    A forest officer may remove or have removed a vehicle or other 
object on National Forest System lands that is abandoned or vandalized 
or that poses an impediment or hazard to the safety, convenience, or 
comfort of National Forest visitors.

    Dated: May 30, 2008.
Abigail R. Kimball,
Chief.
 [FR Doc. E8-16129 Filed 7-16-08; 8:45 am]
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