E8-16129. Law Enforcement Support Activities

AGENCY:

Forest Service, USDA.

ACTION:

Proposed rule, request for comment.

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 [phone]. 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 [phone] to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

John Carpenter, Law Enforcement and Investigations Staff, [phone]. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service at [phone] 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 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 § 262.1, which would be redesignated as § 262.2.

Section 262.2 Rewards in connection with fire or property prosecutions. The Forest Service proposes to redesignate § 262.1, “Rewards in connection with fire or property prosecution,” as § 262.2. Paragraphs (a)(1) and (a)(2) of current § 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 § 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 § 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 § 262.1.

The Agency is proposing to revise paragraph (b) of current § 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 § 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 § 262.2, “Purchase of information in furtherance of investigations,” and § 262.3, “Purchase of evidence in furtherance of investigations” into § 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 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 § 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 § 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

262.1

Definitions.

262.2

Rewards in connection with fire or property prosecutions.

262.3

Payment for information or evidence in furtherance of investigations.

262.4

Audit of expenditures.

262.5

Disposal of purchased property.

Subpart A—Rewards and Payments

§ 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.

§ 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.

§ 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 § 262.11 to read as follows:

§ 262.11

Impoundment of dogs.

* * * * *

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

§ 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 amount received from the sale of the property.

* * * * *

6. Revise § 262.13 to read as follows:

§ 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.