Prohibitions; Law Enforcement Support Activities

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