Proposed Rule2023-21563
Law Enforcement; Criminal Prohibitions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 3, 2023
Issuing agencies
Agriculture DepartmentForest Service
Abstract
The Forest Service (Forest Service or Agency), United States Department of Agriculture, is proposing to revise the Forest Service's criminal prohibitions to enhance consistency of the Forest Service's law enforcement practices with those of State and other Federal land management agencies. The Forest Service is proposing to streamline enforcement of criminal prohibitions in related to fire and use of vehicles on National Forest System roads and trails by eliminating the requirement to issue an order for enforcement.
Full Text
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[Federal Register Volume 88, Number 190 (Tuesday, October 3, 2023)]
[Proposed Rules]
[Pages 68035-68042]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21563]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 261
RIN 0596-AD57
Law Enforcement; Criminal Prohibitions
AGENCY: Forest Service, Agriculture.
ACTION: Proposed rule; request for public comment.
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SUMMARY: The Forest Service (Forest Service or Agency), United States
Department of Agriculture, is proposing to revise the Forest Service's
criminal prohibitions to enhance consistency of the Forest Service's
law enforcement practices with those of State and other Federal land
management agencies. The Forest Service is proposing to streamline
enforcement of criminal prohibitions in related to fire and use of
vehicles on National Forest System roads and trails by eliminating the
requirement to issue an order for enforcement.
DATES: Comments on the proposed rule must be received in writing by
December 4, 2023.
ADDRESSES: Comments, identified by RIN 0596-AD57, may be submitted via
one of the following methods:
1. Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the instructions for sending comments.
2. Mail: Director, Law Enforcement and Investigations Staff, Mail
Stop 1140, 1400 Independence Avenue SW, Washington, DC 20250-1140.
3. Hand Delivery/Courier: Director, Law Enforcement and
Investigations Staff, Room 1SC, 201 14th Street SW, Washington, DC.
Comments should be confined to issues pertinent to the proposed
rule; should explain the reasons for any recommended changes; and
should reference the specific section and wording being addressed,
where possible. All timely comments, including names and addresses when
provided, will be placed in the record and will be available for public
review and copying. The public may review comments at the Office of the
Director, Law Enforcement and Investigations Staff, Room 1SC, 201 14th
Street SW, Washington, DC, during normal business hours. Visitors are
encouraged to call ahead to 703-605-4730 to facilitate entry into the
building. Comments may also be viewed on the Federal eRulemaking Portal
at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the search box, enter ``RIN 0596-
AD57,'' and click the ``Search'' button.
FOR FURTHER INFORMATION CONTACT: Gene Smithson, Assistant Director--
Investigations, Law Enforcement and Investigations Staff, 703-605-4730
or <a href="/cdn-cgi/l/email-protection#57203e3b3a322579243a3e233f243839172224333679303821"><span class="__cf_email__" data-cfemail="83f4eaefeee6f1adf0eeeaf7ebf0ecedc3f6f0e7e2ade4ecf5">[email protected]</span></a>. Individuals who use telecommunication
devices for the hearing impaired may call the Federal Relay Service at
800-877-8339 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday
through Friday.
SUPPLEMENTARY INFORMATION:
Background and Need
This proposed rule would revise certain criminal prohibitions in 36
CFR part 261, subpart A, to enhance consistency of the Forest Service's
law enforcement practices with those of State and other Federal land
management law enforcement agencies. In addition, this proposed rule
would streamline enforcement of some of the criminal prohibitions found
in 36 CFR part 261, subpart B, which are enforceable only through
issuance of an order, by moving them to 36 CFR part 261, subpart A,
which contains criminal prohibitions that are enforceable without
issuance of an order.
Forest Service law enforcement personnel continue to encounter a
significant volume of violations for simple possession of controlled
substances and drug paraphernalia. Agency personnel routinely deal with
under-age alcohol possession on National Forest System (NFS) lands.
These violations pose a threat to the safety of visitors to NFS lands
as well as to Forest Service personnel. This proposed rule would
enhance the Forest Service's authority to address public safety issues
by adding prohibitions relating to controlled substances, drug
paraphernalia, and alcoholic beverages. These proposed prohibitions
would enable the Forest Service to enforce more effectively violations
on NFS lands for simple possession of controlled substances, possession
of alcoholic beverages in violation of State law (for open containers
or under-age
[[Page 68036]]
drinking), and furnishing alcoholic beverages to minors. The proposed
rule also would authorize the Forest Service to enforce violations for
the possession of drug paraphernalia if prohibited by State law. These
proposed changes are intended to align the Forest Service's law
enforcement practices more closely with those of State and local law
enforcement agencies.
Additionally, the proposed rule would update the prohibitions to
enhance protection of persons visiting and working on NFS lands from
theft of personal property and from disorderly conduct by other
visitors. The proposed rule would enhance enforcement of wildfire
prevention prohibitions by moving them from 36 CFR part 261, subpart B,
which requires issuance of an order, to 36 CFR part 261, subpart A,
which does not, and by adding a prohibition banning exploding targets
year-round. The proposed rule also would make other revisions such as
updating the prohibitions relating to off-road vehicles and updating
the penalty for violating the criminal prohibitions in 36 CFR part 261
consistent with current statutory law.
Proposed revisions to specific types of public safety prohibitions
are discussed below.
Prohibition Relating to Controlled Substances
It is a violation of Federal law for a person knowingly or
intentionally to possess controlled substances (21 U.S.C. 844(a)).
Forest Service law enforcement officers enforce 21 U.S.C. 844(a) on NFS
lands, and in some circumstances off these lands, under the National
Forest System Drug Control Act of 1986 (16 U.S.C. 559b-559g). A
violation of 21 U.S.C. 844(a) without aggravating factors is classified
as a Class A misdemeanor. With aggravating factors, this type of
violation is classified as a felony (18 U.S.C. 3559(a)).
Violations of 21 U.S.C. 844(a) require referral to the appropriate
United States Attorney's Office for the filing of a complaint or
information and prosecution before a United States District Court
judge. Guidelines established by the United States Attorney's Office
for prosecutions under 21 U.S.C. 844(a) are based upon the amount of
the controlled substance involved in the violation. In many instances,
violations for simple possession of a controlled substance on NFS lands
are not prosecuted under 21 U.S.C. 844(a) because they involve small
amounts that are insufficient to meet these prosecutorial guidelines.
The Forest Service's criminal prohibitions at 36 CFR part 261,
subpart A, do not expressly prohibit the possession of controlled
substances on NFS lands. To provide an alternative to proceeding under
21 U.S.C. 844(a), the Forest Service is proposing to revise 36 CFR part
261, subpart A, to prohibit knowingly or intentionally possessing a
controlled substance in violation of Federal law. The proposed rule
also would add a definition for the term ``controlled substance'' that
tracks the definition of that term in the Controlled Substances Act (21
U.S.C. 801 et seq.).
With these changes, the possession of small amounts of a controlled
substance could be handled through issuance of a notice of violation by
a Forest Service law enforcement officer and prosecution before a
United States magistrate judge and would be classified as a Class B
misdemeanor. Forest Service law enforcement personnel would continue to
refer cases involving larger amounts of controlled substances that meet
prosecutorial guidelines to the appropriate United States Attorney's
Office.
Prohibition Relating to Drug Paraphernalia
Possession of drug paraphernalia is not a violation of Federal law
(see 21 U.S.C. 863(d)). Some States prohibit possession of drug
paraphernalia only if it contains the residue of a controlled
substance. Other States prohibit possession of drug paraphernalia even
if it does not contain the residue of a controlled substance. The
proposed rule would add a prohibition that would prohibit knowingly or
intentionally possessing drug paraphernalia in either situation when it
is in violation of State law.
Prohibitions Relating to Alcoholic Beverages
The Forest Service has limited authority in 36 CFR part 261 to
address underage drinking and other violations of State law relating to
alcoholic beverages, such as State laws prohibiting open containers of
alcoholic beverages and furnishing alcoholic beverages to minors. The
current authority is contained in 36 CFR 261.58(bb), which prohibits
possession of an alcoholic beverage as defined by State law when
enforced through issuance of an order issued under 36 CFR part 261,
subpart B. The proposed rule would add two prohibitions relating to
alcoholic beverages (possessing an alcoholic beverage in violation of
State law and providing an alcoholic beverage to a minor in violation
of State law) to 36 CFR part 261, subpart A. These changes would make
the prohibitions generally applicable to NFS lands and enforceable
without issuance of an order. These proposed changes are intended to
allow the Forest Service to address more effectively the use of NFS
lands at gatherings where alcoholic beverages are consumed by giving
Forest Service law enforcement officers the same enforcement options as
their State and local counterparts.
The prohibition in 36 CFR 261.58(bb) would be retained to allow the
Forest Service to prohibit consumption of alcoholic beverages
temporarily in specific areas of NFS lands when appropriate to protect
public safety, such as at a large event, regardless of whether
consumption of alcoholic beverages is in violation of State law.
Protection of Persons on NFS Lands
Both Federal and State laws apply to the national forests (16
U.S.C. 480). Generally, States enforce State laws, while Forest Service
law enforcement personnel enforce Federal laws, including the criminal
prohibitions in 36 CFR part 261, subparts A and C, and in orders issued
under 36 CFR part 261, subpart B. In most cases, the Federal laws and
prohibitions relate to the Agency's resource protection
responsibilities. However, with the urbanization and development of
areas near NFS lands, crimes against persons and personal property have
become an increasing public safety concern.
The Forest Service cooperates with State and local law enforcement
agencies in the execution of their responsibilities related to NFS
lands. Under the Cooperative Law Enforcement Act of 1971 (16 U.S.C.
551a), the Forest Service has entered into reimbursable agreements with
some State and local law enforcement agencies (usually a county
sheriff's office) for the protection of persons and their property on
NFS lands where these lands and facilities account for increased
visitor use.
Over time, however, it has become evident that reimbursement
through the cooperative law enforcement program alone cannot always
provide for the appropriate level of protection. Many local law
enforcement agencies find that their limited personnel, the remote
location of NFS lands, and the seasonal nature of use those lands
receive impede rapid response to crimes committed on NFS lands. When a
person is victimized by theft of or damage to personal property on NFS
lands--for example at a campsite or a trailhead parking lot--and State
or local enforcement personnel are unable to respond, Forest Service
law enforcement personnel have limited
[[Page 68037]]
authority to assist. The proposed rule would add a prohibition that
would allow Forest Service law enforcement personnel to take
appropriate action in response to theft of or damage to personal
property on NFS lands.
To protect persons on NFS lands, the proposed rule also would
revise the prohibitions relating to disorderly conduct. A significant
increase in visitation to national forests and grasslands has coincided
with an increase in incidents of public behavior that threatens the
safety of others. Forest Service law enforcement personnel frequently
encounter situations in which a person makes lewd or obscene comments
to another person; follows another person around, including into a
restroom, with no legitimate purpose and in a threatening manner; or
engages in indecent exposure. The proposed rule would revise the
disorderly conduct prohibitions in 36 CFR 261.4 to address these
situations.
Traffic Prohibitions
The proposed rule would incorporate State traffic law in Sec.
261.12 so that State traffic law is enforceable as Federal traffic law.
Specifically, the proposed rule would incorporate two commonly cited
violations of State traffic law: operating a motor vehicle without a
valid license and operating a motor vehicle while under the influence
of an alcoholic beverage or a controlled substance. The proposed rule
also would incorporate a catch-all prohibition that would incorporate
any other State traffic laws so that they are enforceable as Federal
traffic law.
Prohibitions Relating to Prevention of Wildfire
Wildland fires, including catastrophic wildfires, have increased in
frequency and severity on NFS lands. An accumulation of hazardous fuels
combined with severe drought have resulted in extreme fire conditions
and very large fires. Forest Service estimates indicate that more than
460 million acres of all vegetated lands are at moderate to high risk
from uncharacteristically large wildfires, encompassing many wildland-
urban interfaces with high densities of structures that intermingle
with undeveloped wildlands. In 2022, more than 7.5 million acres burned
in the United States, and more than 2,700 structures were destroyed,
including 1,294 residences. These fires have long-term and sometimes
irreversible consequences, including damage to watersheds that supply
drinking water and damage to critical habitat for endangered species.
The Forest Service also incurs significant annual costs related to
wildland fire suppression.
This proposed rule would allow the Forest Service to take
additional enforcement actions to prevent wildfires on NFS lands. The
possession and use of fireworks or other pyrotechnic devices are not
generally prohibited on NFS lands. However, they may be prohibited in
areas specified in an order issued under 36 CFR 261.52(f). Typically,
the Forest Service issues orders under 36 CFR 261.52(f) on a seasonal
basis when the threat of fire is high. However, given the higher risk
and greater severity of wildland fires, the Agency has determined that
a year-round ban is necessary to protect NFS lands and resources,
persons using those lands, and surrounding communities from the threat
of catastrophic wildfire. The proposed rule would move these
prohibitions to 36 CFR part 261, subpart A, so that they are
enforceable anywhere on NFS lands during any season without issuance of
an order under 36 CFR part 261, subpart B.
Prohibition Relating to Exploding Targets
Exploding targets--targets that explode when struck by a bullet--
have become popular throughout the United States, and their use is
increasing on NFS lands. Exploding targets can be purchased legally and
are intended for use as a target for firearms practice. However, when
detonated by a bullet, exploding targets often result in a fireball
that can ignite vegetation and surrounding materials and spread to
adjacent areas. A growing number of wildfires on NFS lands have been
caused by exploding targets; from 2012 to 2022, multiple fires burned
over 139,000 acres as result of exploding targets, costing taxpayers
millions of dollars to suppress. Additionally, trash is often left
behind after exploding targets are used, including undetonated targets,
which present additional safety risks for visitors, employees, and
firefighters.
Exploding targets are regulated by the Forest Service as explosives
under the Agency's authority to issue orders banning the use of
explosives in specified areas under 36 CFR 261.52(b). Because exploding
targets present a significant fire hazard at any time of year, the
Forest Service is proposing to add a generally applicable prohibition
to 36 CFR 261.5 that does not require issuance of an order and that
would ban possession as well as use of an exploding target on NFS
lands.
Exploding targets generally consist of two separate chemical
components (usually an oxidizer like ammonium nitrate and a fuel such
as aluminum or another metal) that become a binary explosive when
combined. The individual components, which often are pre-packaged
together, are kept separate within individual containers for sale and
transport. Kept separate, the components are not explosives. Combined,
however, the components become explosive and thus are subject to
Federal explosive laws and regulations. To avoid triggering Federal law
until they are ready to be used and to minimize the risk of injury, the
components are typically combined at the site where the exploding
targets are going to be used. This proposed rule would ban the
possession and use of an exploding target (the binary explosive that is
created by combining the two components).
The Forest Service recognizes hunting and safe target shooting as
valid uses of NFS lands. This proposed rule would not affect these
valid uses.
Proposed Regulatory Revisions
A section-by-section description of the proposed rule follows.
Section 261.1b Penalty
The proposed rule would make a technical change to 36 CFR 261.1b,
which governs penalties for violating a criminal prohibition in 36 CFR
part 261, to make it consistent with current statutory law. The
regulations at 36 CFR 261.1b refer to the penalty in 16 U.S.C. 551,
which provides that a violation shall be punished by a fine of not more
than $500, imprisonment for not more than six months, or both.
Violations were classified as petty offenses.
The Comprehensive Crime Control Act of 1984 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 36 CFR part 261, are
considered Class B misdemeanors. The Comprehensive Crime Control Act of
1984 also prescribes a range of fines for Class B misdemeanors,
depending on specific circumstances associated with the violation, with
a maximum fine of $5,000 for a person and $10,000 for an organization
(18 U.S.C. 3571). The proposed revision reflects this statutory change
and provides for exceptions when a statute establishing an offense
expressly sets a different penalty.
Section 261.2 Definitions
The proposed rule would add six definitions to 36 CFR 261.2 for the
terms ``alcoholic beverage,'' ``controlled
[[Page 68038]]
substance,'' ``exploding target,'' ``firework,'' ``pyrotechnic
device,'' and ``recreation site.'' The proposed rule also would revise
the definition of ``developed recreation site.''
The term ``alcoholic beverage'' would be defined to have the same
meaning as under State law. This definition is consistent with the
current use of the term in 36 CFR 261.58(bb).
The term ``controlled substance'' would be defined to have the same
meaning as in the Controlled Substance Act (21 U.S.C. 801 et seq.).
The term ``exploding target'' would be defined to mean a binary
explosive that is designed to explode when struck by a bullet.
Exploding targets consist of two components that are combined to create
the explosive. Individually, the parts are inert. However, when
combined, they become explosive.
The term ``firework'' would be defined to have the same meaning as
in 27 CFR 555.11. As defined in those regulations, the term
``firework'' means any composition or device that is designed to
produce a visible or an audible effect by combustion, deflagration, or
detonation and that meets the definition of ``consumer fireworks'' or
``display fireworks'' as defined by 27 CFR 555.11. This definition is
consistent with the Forest Service's current interpretation of what
constitutes a firework.
The term ``pyrotechnic device'' would be defined to have the same
meaning as the term ``articles pyrotechnic'' in 27 CFR 555.11. As
currently defined in those regulations, the term ``articles
pyrotechnic'' means devices for professional use that are similar to
consumer fireworks in chemical composition and construction but are not
intended for consumer use. This definition is consistent with the
Forest Service's current interpretation of what constitutes a
pyrotechnic device.
This proposed rule would amend 36 CFR 261.2 by revising the
definition of ``developed recreation site'' and adding a definition of
``recreation site'' to be consistent with the definitions of those
terms in Chapter 50 of the Forest Service's Recreation Site Handbook,
Forest Service Handbook 2309.13. Chapter 50 of the Recreation Site
Handbook defines the terms ``developed recreation site'' and
``recreation site'' based on the scale of development at a site.
Chapter 50 of the Recreation Site Handbook also contains a recreation
site development scale showing the characteristics of each scale of
development.
The term ``developed recreation site'' is currently defined in 36
CFR 261.2 as ``an area which has been improved or developed for
recreation.'' The proposed definition of ``developed recreation site''
would be more specific than the current definition and would match the
definition of that term in Chapter 50 of the Recreation Site Handbook.
As defined in Chapter 50 of the Recreation Site Handbook, a developed
recreation site is ``a recreation site that has a development scale of
3, 4, or 5 (sec. 50.5, ex. 01)''. Recreation sites with a development
scale of 3, 4, or 5 range from moderate to extensive site development.
Additionally, the proposed rule would add a definition of
``recreation site'' to 36 CFR 261.2 that tracks the definition of that
term in Chapter 50 of the Recreation Site Handbook. Chapter 50 of the
Recreation Site Handbook defines the term ``recreation site'' as ``an
area that is improved, developed, or otherwise authorized by the Forest
Service for recreation and that has a development scale of 0, 1, 2, 3,
4, or 5 (sec. 50.5, ex. 01).'' Under this added definition, the term
``recreation site'' would cover a broader range of areas than the term
``developed recreation site'' and would include recreation sites with a
development scale of 0, 1, or 2, which range from no to little site
modification.
Currently, the term ``developed recreation site'' is used in the
criminal prohibitions in 36 CFR part 261, subpart A, specifically, in
36 CFR 261.10(d)(1), (i), and (j) and 261.16. These prohibitions would
continue to apply only to developed recreation sites, that is, to
recreation sites that have a development scale of 3, 4, or 5. The
prohibitions would not be broadened to apply to recreation sites with a
development scale of 0, 1, or 2, which have little to no site
modification, because the public may not have adequate notice that such
a site exists, given the lack of development, and that a prohibition
applies.
In contrast, the term ``recreation site'' would be substituted for
``developed recreation site'' each time the latter term appears in
prohibitions designated by order in 36 CFR part 261, subpart B,
specifically, in 36 CFR 261.52(d) and 261.58(b) and (d). Prohibitions
designated by orders can be broader in scope and can cover recreation
sites with a development scale of 0, 1, or 2 because orders specify the
area to which they apply.
Section 261.4 Disorderly Conduct
The prohibitions in 36 CFR 261.4 pertain to disorderly conduct.
This proposed rule would add a criminal intent element, or mens rea,
that the violator acted intentionally or recklessly in committing the
offense. To be cited for a violation of disorderly conduct, a person
must have committed one of the acts described in paragraphs (a) through
(c) with the intent to cause, or recklessly to create a substantial
risk of causing, public alarm, nuisance, jeopardy, or violence. The
criminal intent standard would require a showing that the violator
knowingly intended to cause public alarm, nuisance, jeopardy, or
violence by the prohibited acts or words. Alternatively, the reckless
standard, which has a lesser mens rea, would require a showing that the
violator was aware of, but consciously disregarded, the substantial
risk that the prohibited acts or words would cause public alarm,
nuisance, jeopardy, or violence.
This proposed rule also would revise the types of conduct that
would constitute disorderly conduct when committed with the requisite
mens rea. The current paragraph (a) prohibits only fighting. This
proposed rule would add threatening or other violent behavior. This
proposed rule also would revise paragraph (b) and would substitute it
for current paragraphs (b) and (c), which cover ``fighting words,''
such as utterances that are likely to provoke violence or unlawful
acts. Fighting words are not protected speech under the First
Amendment. Revised paragraph (b) would cover fighting words by
prohibiting ``making an utterance or performing an act . . . that is
made or performed in a manner likely to inflict injury or to incite an
immediate breach of peace.'' Because revised paragraph (b) also would
cover an utterance or act that is obscene or threatening when committed
with the intent to cause public alarm, nuisance, jeopardy, or violence,
or recklessly create a risk thereof, revised paragraph (b) would
address situations when a person (1) makes lewd or obscene comments
short of solicitation to another person; (2) follows another person
around, including into a restroom, with no legitimate purpose if done
in a threatening manner; and (3) commits indecent exposure. This
proposed rule also would redesignate paragraph (d) as paragraph (c) and
would provide further instruction as to what constitutes unreasonable
noise in violation of the disorderly conduct prohibition.
Section 261.5 Fire
The Forest Service proposes to add paragraphs (h), (i), and (j) to
36 CFR 261.5, which contains prohibitions relating to fire. The
prohibitions in proposed paragraphs (h), (i), and (j) are currently
enforceable only through
[[Page 68039]]
issuance of an order under 36 CFR 261.52. Moving these prohibitions to
Sec. 261.5 would make them generally applicable to NFS lands year-
round and enforceable without issuance of an order.
Specifically, proposed paragraph (h) would prohibit possessing or
using an exploding target or any kind of firework or other pyrotechnic
device. The prohibition banning the possession or use of fireworks or
other pyrotechnic devices is currently enforced in areas specified by
an order issued under 36 CFR 261.52(f). The proposed rule would move
this prohibition to 36 CFR part 261, subpart A, which would make it
generally applicable to NFS lands year-round and enforceable without
issuance of an order. The proposed rule also would add a prohibition to
paragraph (h) that would ban the possession and use of exploding
targets.
Proposed paragraph (i) would prohibit violating any State law
concerning burning or fires or any State law whose purpose is to
prevent or restrict the spread of fire. This prohibition is currently
enforced in areas specified by an order issued under 36 CFR 261.52(k).
The Forest Service may incorporate State law concerning burning or
fires or any State law which is for the purpose of preventing or
restricting the spread of fire in an order issued under Sec.
261.52(k). Violations of these orders constitute violations of Federal
law. The proposed rule would move this prohibition to 36 CFR part 261,
subpart A, which would make it generally applicable to NFS lands year-
round and enforceable without issuance of an order.
Proposed paragraph (j) would prohibit operating or using any
internal or external combustion engine without a properly installed and
maintained spark-arresting device that meets specified requirements.
This prohibition is currently enforced in areas specified by an order
issued under 36 CFR 261.52(j). The proposed rule would move this
prohibition to 36 CFR part 261, subpart A, which would make it
generally applicable to NFS lands year-round and enforceable without
issuance of an order.
Section 261.9 Property
This proposed rule would add paragraph (j) to 36 CFR 261.9 to
provide enforcement authority for theft by prohibiting damaging or
removing without authorization any personal property belonging to
another person.
Section 261.10 Occupancy and Use
This proposed rule would revise paragraphs (a) and (e), would
remove paragraph (o), and would add paragraphs (o) through (s) to 36
CFR 261.10 relating to occupancy and use of NFS lands.
Paragraph (a) currently prohibits constructing, placing, or
maintaining certain improvements on NFS lands or facilities without an
authorization. Signs are not listed as a type of improvement that is
prohibited without an authorization. This proposed rule would revise
paragraph (a) to prohibit constructing, placing, or maintaining a sign
on NFS lands or facilities without an authorization.
Paragraph (e) prohibits abandoning any personal property. Forest
Service law enforcement personnel have encountered a noticeable
increase in personal property, such as camping and other recreational
equipment, being stored on NFS lands. Because the term ``abandon''
connotes relinquishing property without an intent to reclaim
possession, the Forest Service needs a better tool to manage illegally
stored personal property on NFS lands. This proposed rule would
prohibit leaving personal property unattended for longer than 24 hours,
except in locations where longer periods have been designated.
Paragraph (o) prohibits discharging or igniting a firecracker,
rocket or other firework, or explosive into or within any cave. This
prohibition is no longer necessary because it is covered by proposed
paragraph (h) that would be added to Sec. 261.5. Paragraph (p) in 36
CFR 261.10 would become paragraph (o).
Proposed paragraphs (p) and (q) would add prohibitions for simple
possession of controlled substances and drug paraphernalia,
respectively.
Proposed paragraph (r) would add a prohibition for possessing an
alcoholic beverage in violation of State law. Under this proposed
prohibition, Forest Service law enforcement personnel could issue a
notice of violation for possession of alcohol by a minor or for
possession of an open container in a vehicle, where prohibited by State
law. Proposed paragraph (s) would add a prohibition for providing an
alcoholic beverage to a minor in violation of State law.
Section 261.12 National Forest System Roads and Trails
The proposed rule would move the prohibition in 36 CFR 261.54(f),
which prohibits operating a vehicle or motor vehicle carelessly,
recklessly, or in a manner or at a speed that would endanger or be
likely to endanger any person or property, to proposed paragraph (e) of
36 CFR 261.12, which contains prohibitions relating to NFS roads and
NFS trails. Moving this prohibition to Sec. 261.12 would make it
generally applicable to NFS lands year-round and enforceable without
issuance of an order. The proposed rule also would add a prohibition
for operating a motor vehicle in violation of a posted sign or traffic
control device.
Section 261.15 Use of Vehicles Off Roads
The proposed rule would amend 36 CFR 261.15, which pertains to off-
road vehicle use on NFS lands. The proposed rule would revise
paragraphs (e) and (g). Paragraph (e), which prohibits off-road vehicle
use while under the influence of alcohol or another drug, would be
updated to refer to the proposed defined terms in Sec. 261.2, i.e.,
``alcoholic beverage'' and ``controlled substance.'' The terminology in
paragraph (g), which prohibits careless and reckless driving, also
would be updated without altering the substance of the prohibition.
Section 261.50 Orders
The United States Court of Appeals for the Ninth Circuit has
interpreted 36 CFR 261.50 to allow only those persons holding the
positions specified in 36 CFR 261.50(a) and (b), including persons
acting in those positions, to issue orders under 36 CFR part 261,
subpart B. United States v. True, 946 F.2d 682, 687 (9th Cir. 1991).
The proposed rule would amend Sec. 261.50(a) and (b) to expressly
authorize the persons holding the positions specified in those
paragraphs to delegate the authority to issue orders under 36 CFR part
261, subpart B, to officials acting in those positions or to their
deputy. The proposed rule would amend Sec. 261.50(a) and (b) to
clarify that the authority of officials issuing an order is limited to
areas over which those officials have delegated authority.
Section 261.52 Fire
This proposed rule would move the prohibitions in paragraphs (f),
(j), and (k) to Sec. 261.5, which would make the prohibitions
generally applicable to NFS lands year-round and enforceable without
issuance of an order.
Section 261.53 Special Closures
This proposed rule would amend 36 CFR 261.53 relating to special
closures. The changes to the heading and introductory text of Sec.
261.53 would clarify that this provision can be used to restrict use of
an area, such as to close an area to a particular use, as well as to
close an area in its entirety to all uses.
[[Page 68040]]
Section 261.54 National Forest System Roads
The proposed rule would move the prohibition in 36 CFR 261.54(f),
which prohibits operating a vehicle or motor vehicle carelessly,
recklessly, or in a manner or at a speed that would endanger or be
likely to endanger any person or property, to proposed paragraph (e) of
36 CFR 261.12, which contains prohibitions relating to NFS roads and
NFS trails. This revision would make the prohibition in 36 CFR
261.54(f) generally applicable to NFS lands year-round and enforceable
without issuance of an order.
Section 261.58 Occupancy and Use
The authority to issue orders relating to occupancy and use of NFS
lands is contained in 36 CFR 261.58. Paragraph (bb) prohibits
possession of an alcoholic beverage as defined under State law, when
enforced through issuance of an order. This proposed rule would revise
paragraph (bb) to be consistent with the proposed definition of
``alcoholic beverage'' that would be added to Sec. 261.2.
Regulatory Certifications
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether a regulatory action is significant as
defined by E.O. 12866 and will review significant regulatory actions.
OIRA has determined that this proposed rule is not significant as
defined by E.O. 12866. E.O. 13563 reaffirms the principles of E.O.
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Agency has developed the proposed rule consistent with E.O.
13563.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), OIRA has designated this proposed rule as not a major
rule as defined by 5 U.S.C. 804(2).
National Environmental Policy Act
The proposed rule would streamline enforcement of criminal
prohibitions in existing regulations by providing for enforcement
without issuance of an order and enhance consistency of the Forest
Service's law enforcement practices with those of State and other
Federal land management agencies. Forest Service regulations at 36 CFR
220.6(d)(2) exclude 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 preliminary 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. A final
determination will be made upon adoption of the final rule.
Regulatory Flexibility Act
The Forest Service has considered this proposed rule under the
Regulatory Flexibility Act (5 U.S.C. 602 et. seq.). This proposed rule
would not have any direct effect on small entities as defined by the
Regulatory Flexibility Act. This proposed rule would not impose record-
keeping requirements on small entities; would not affect their
competitive position in relation to large entities; and would not
affect their cash flow, liquidity, or ability to remain in the market.
Therefore, the Forest Service has determined that this proposed rule
would not have a significant economic impact on a substantial number of
small entities pursuant to the Regulatory Flexibility Act.
Federalism
The Agency has considered this proposed rule under the requirements
of E.O. 13132, Federalism. The Agency has determined that the proposed
rule conforms with the federalism principles set out in this executive
order; 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 concluded that this proposed rule would not
have federalism implications.
Consultation and Coordination With Indian Tribal Governments
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, requires Federal agencies to consult and coordinate with
Tribes on a government-to-government basis on policies that have Tribal
implications, including regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. This proposed rule would streamline
enforcement of criminal prohibitions in existing regulations by
providing for enforcement without issuance of an order and enhance
consistency of the Forest Service's law enforcement practices with
those of State and other Federal land management agencies. The Agency
has reviewed this proposed rule in accordance with the requirements of
E.O. 13175 and has determined that this proposed rule would not have
substantial direct effects on Indian Tribes, on the relationship
between the Federal Government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian Tribes. Therefore, consultation and coordination
with Indian Tribal governments is not required for this proposed rule.
No Takings Implications
The Agency has analyzed this proposed rule in accordance with the
principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protect Property Rights. The Agency
has determined that the proposed rule would not pose the risk of a
taking of private property.
Energy Effects
The Agency has reviewed this proposed rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that this proposed rule
would not constitute a significant energy action as defined in E.O.
13211.
Civil Justice Reform
The Forest Service has analyzed this proposed rule in accordance
with the principles and criteria in E.O. 12988, 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
[[Page 68041]]
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.
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 and therefore would impose no additional paperwork
burden on the public. 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 6 CFR Part 261
Law enforcement, National forests.
Therefore, for the reasons set forth in the preamble, the Forest
Service proposes to amend chapter II of title 36 of the Code of Federal
Regulations as follows:
PART 261--PROHIBITIONS
0
1. The authority citation for part 261 continues to read:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l-6d, 472, 551,
620(f), 1133(c)-(d)(1), 1246(i).
0
2. Revise Sec. 261.1b to read as follows:
Sec. 261.1b Penalty.
Unless otherwise provided by law, the punishment for violation of
any prohibition in or order issued under 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.
0
3. Amend Sec. 261.2 by:
0
a. Adding in alphabetical order definitions for ``alcoholic beverage,''
and ``controlled substance'';
0
b. Revising the definition for ``developed recreation site''; and
0
c. Adding in alphabetical order definitions for ``exploding target,''
``firework,'' ``pyrotechnic device,'' and ``recreation site.''
The additions and revisions read as follows:
Sec. 261.2 Definitions.
* * * * *
Alcoholic beverage means alcoholic beverage as defined by State
law.
* * * * *
Controlled substance means a drug or other substance, its immediate
precursor included in schedules I, II, III, IV, or V of section 202 of
the Controlled Substance Act (21 U.S.C. 812), or a drug or other
substance added to these schedules under the terms of the Act.
* * * * *
Developed recreation site has the same meaning as in Chapter 50 of
Forest Service Handbook 2309.13.
* * * * *
Exploding target means a binary explosive consisting of two
separate components (usually an oxidizer like ammonium nitrate and a
fuel such as aluminum or another metal) that is designed to explode
when struck by a bullet.
* * * * *
Firework has the same meaning as in 27 CFR 555.11 or a successor
regulation.
* * * * *
Pyrotechnic device has the same meaning as the term ``articles
pyrotechnic'' in 27 CFR 555.11 or a successor regulation.
* * * * *
Recreation site has the same meaning as in Chapter 50 of Forest
Service Handbook 2309.13.
* * * * *
0
4. Revise Sec. 261.4 to read as follows:
Sec. 261.4 Disorderly conduct.
The following are prohibited when committed intentionally to cause,
or recklessly to create a substantial risk of causing, public alarm,
nuisance, jeopardy, or violence:
(a) Engaging in fighting or any threatening or other violent
behavior.
(b) Making an utterance or performing an act that is obscene or
threatening or that is made or performed in a manner that is likely to
inflict injury or incite an immediate breach of peace.
(c) Making noise that is unreasonable considering the nature and
purpose of the conduct, location, and time.
0
5. Amend Sec. 261.5 by adding paragraphs (h), (i), and (j) to read as
follows:
Sec. 261.5 Fire.
* * * * *
(h) Possessing or using an exploding target or any kind of firework
or other pyrotechnic device.
(i) Violating any State law concerning burning or fires or any
State law that is for the purpose of preventing or restricting the
spread of fire.
(j) Operating or using any internal or external combustion engine
without a spark arresting device that is properly installed,
maintained, and in effective working order in accordance with USDA
Forest Service Standard 5100-1.
0
6. Amend Sec. 261.9 by adding paragraph (j) to read as follows:
Sec. 261.9 Property.
* * * * *
(j) Damaging or removing without authorization any personal
property that belongs to another person.
0
7. Amend Sec. 261.10 by revising paragraphs (a), (e), (o), and (p),
and adding paragraphs (q), (r), and (s) to read as follows:
Sec. 261.10 Occupancy and use.
The following are prohibited:
(a) Constructing, placing, or maintaining any kind of road, trail,
structure, fence, enclosure, communications equipment, sign,
significant surface disturbance, or other improvement on National
Forest System lands or facilities without a special use authorization,
contract, approved plan of operations, or other written authorization
when that written authorization is required.
* * * * *
(e) Leaving personal property unattended for longer than 24 hours,
except in locations where longer periods have been designated.
(o) Use or occupancy of National Forest System lands or facilities
without a special use authorization, contract, approved plan of
operations, or other written authorization when that written
authorization is required.
(p) Knowingly or intentionally possessing any controlled substance
in violation of Federal law.
(q) Knowingly or intentionally possessing any drug paraphernalia in
violation of State law.
(r) Possessing any alcoholic beverage in violation of State law.
(s) Providing any alcoholic beverage to a minor in violation of
State law.
0
8. Amend Sec. 261.12 by adding paragraphs (e) through (i) to read as
follows:
Sec. 261.12 National Forest System roads and National Forest System
trails.
The following are prohibited:
* * * * *
(e) Operating a motor vehicle without a valid license as required
by State law.
(f) Operating a motor vehicle while under the influence of an
alcoholic beverage or a controlled substance in violation of State law.
(g) Operating a motor vehicle in violation of any State law other
than those described in paragraph (e) or (f) of this section.
(h) Operating a vehicle or motor vehicle carelessly, recklessly, or
in a manner or at a speed that would endanger or be likely to endanger
any person or property.
[[Page 68042]]
(i) Operating a motor vehicle in violation of a posted sign or
traffic control device.
0
9. Amend Sec. 261.15 by revising paragraphs (e) and (g) to read as
follows:
Sec. 261.15 Use of vehicles off roads.
* * * * *
(e) While under the influence of an alcoholic beverage or a
controlled substance in violation of State law.
* * * * *
(g) Carelessly, recklessly, or in a manner or at a speed that
endangers or is likely to endanger any person or property.
* * * * *
0
10. Amend Sec. 261.50 by revising paragraphs (a) and (b) to read as
follows:
Sec. 261.50 Orders.
(a) The Chief, each Regional Forester, each Experiment Station
Director, the head of each administrative unit, their deputies, or
persons acting in these positions may issue orders, consistent with
their delegations of authority, that close or restrict the use of
described areas by applying the prohibitions authorized in this
subpart, individually or in combination.
(b) The Chief, each Regional Forester, each Experiment Station
Director, the head of each administrative unit, their deputies, or
persons acting in these positions may issue orders, consistent with
their delegations of authority, that close or restrict the use of any
National Forest System road or National Forest System trail.
* * * * *
0
11. Revise Sec. 261.52 to read as follows:
Sec. 261.52 Fire.
When provided by an order, the following are prohibited:
(a) Building, maintaining, attending, or using a fire, campfire, or
stove fire.
(b) Using an explosive.
(c) Smoking.
(d) Smoking, except within an enclosed vehicle or building, at a
recreation site, or while stopped in an area at least 3 feet in
diameter that is barren or cleared of all flammable material.
(e) Entering or being in an area.
(f) Entering an area without any firefighting tool prescribed by
the order.
(g) Operating an internal combustion engine.
(h) Welding or operating an acetylene or other torch with open
flame.
0
12. Amend Sec. 261.53 by revising the title and introductory text to
read as follows:
Sec. 261.53 Special closures or restrictions.
When provided by an order, it is prohibited to go into or be in any
area which is closed or restricted for the protection of:
* * * * *
Sec. 261.54 [Amended]
0
13. Amend Sec. 261.54 by removing paragraph (f).
0
14. Amend Sec. 261.58 by revising paragraphs (b), (d), and (bb) to
read as follows:
Sec. 261.58 Occupancy and use.
* * * * *
(b) Entering or using a recreation site or portion thereof.
* * * * *
(d) Occupying a recreation site with prohibited camping equipment
prescribed by the order.
* * * * *
(bb) Possessing an alcoholic beverage.
* * * * *
Homer Wilkes,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2023-21563 Filed 10-2-23; 8:45 am]
BILLING CODE 3411-15-P
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</html>Indexed from Federal Register on October 3, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.