Amend Certain Paragraphs in 36 CFR 261.2 and 261.10 To Clarify Issuing a Criminal Citation for Unauthorized Occupancy and Use of National Forest System Lands and Facilities by Mineral Operators, 26578-26580 [E7-8706]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 72, Number 90 (Thursday, May 10, 2007)]
[Proposed Rules]
[Pages 26578-26580]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-8706]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 261

RIN 0596-AC38


Amend Certain Paragraphs in 36 CFR 261.2 and 261.10 To Clarify 
Issuing a Criminal Citation for Unauthorized Occupancy and Use of 
National Forest System Lands and Facilities by Mineral Operators

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would allow, if necessary, a criminal 
citation to be issued for unauthorized mineral operations on National 
Forest System lands. The Forest Service invites written comments on 
this proposed rule.

DATES: Comments on this proposed rule must be received in writing by 
July 9, 2007.

ADDRESSES: Send written comments to Forest Service, USDA, Attn: 
Director, Minerals and Geology Management (MGM) Staff, (2810), at Mail 
Stop 1126, Washington, DC 20250-1126; by electronic mail to 
36cfr228a@fs.fed.us; or by fax to (703) 605-1575; or by the electronic 
process available at Federal e-Rulemaking portal at https://
www.regulations.gov. If comments are sent by electronic mail or by fax, 
the public is requested not to send duplicate written comments via 
regular mail. Please confine written comments to issues pertinent to 
the proposed rule; explain the reasons for any recommended changes; 
and, where possible, reference the specific wording being addressed. 
All comments, including names and addresses when provided, will be 
placed in the record and will be available for public inspection and 
copying. The public may inspect comments received on this proposed rule 
in the Office of the Director, MGM Staff, 5th Floor, Rosslyn Plaza 
Central, 1601 North Kent Street, Arlington, Virginia 22209, Monday 
through Friday (except for Federal holidays) between the hours of 8:30 
a.m. and 4 p.m. Those wishing to inspect comments are encouraged to 
call ahead at (703) 605-4545 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Janine Clayton, Minerals and Geology 
Management Staff, (703) 605-4788, or electronic mail to 
jclayton01@fs.fed.us.

SUPPLEMENTARY INFORMATION:

Public Notification and Request for Comments

    The Department is making every effort to ensure that all interested 
parties, including mineral operators, minerals-related organizations 
and associations, are informed of the availability of the proposed 
rule. To ensure the widest distribution, the proposed rule will be 
distributed by paper copy mailings, e-mail notices, posting on the 
Forest Service Minerals and Geology Management Staff internet web site, 
as well as published notices in local newspapers. Copies of the 
proposed rule also will be provided to the appropriate Congressional 
committee members.

Background and Need for Proposed Rule

    The Forest Service uses two enforcement options, civil and 
criminal, to enforce its mining regulations at 36 CFR part 228, subpart 
A. Criminal enforcement (36 CFR part 261) is often used in situations 
that are factually uncomplicated and where immediate action is needed, 
or other resolutions have failed.
    In 1984, a Federal district judge ruled that the prohibitions at 36 
CFR 261.10 did not apply to mineral operations. As a result, the Forest 
Service amended Sec. Sec.  261.10(a) and 261.10(l) to directly tie the 
wording to locatable mineral operations by adding ``or approved 
operating plan'' to both of these paragraphs. Unfortunately, the 
wording was not added to Sec. Sec.  261.10(b) and 261.10(k), and that 
omission makes these paragraphs less clearly applicable to mineral 
operations.
    Two recent court decisions have prompted the Forest Service to 
amend the prohibitions at 36 CFR 261.10. In California, the Forest 
Service cited a suction dredge operator under the criminal regulations 
at 36 CFR 261.10(k) for use or occupancy without a special use permit 
authorization. The magistrate court judge dismissed the charge in U.S. 
v. McClure, 364 F. Supp. 2d 1183 (E.D.Cal., 2005), and cited in support 
of the ruling another recent California Eastern District Court 
decision, U.S. v. Lex, 300 F. Supp. 2d 951 (E.D.Cal., 2003). In 
summary, these decisions found that special-use authorizations and the 
application of 36 CFR 261.10(b) and 261.10(k) do not apply to mineral 
operations.
    As a result of the McClure and Lex court decisions, it is advisable 
to again amend certain paragraphs in 36 CFR 261.10 to clearly tie them 
to locatable mineral operations and other mineral operations. The 
Regions dealing with suction dredge operators are particularly 
concerned about the effects of the two adverse ruling on their use of 
provisions in 261.

Clarification for Issuing a Criminal Citation for Unauthorized 
Occupancy and Use of National Forest System Lands and Facilities by 
Mineral Operators

    The technical amendments to 36 CFR part 261 clarify that a criminal 
citation can be issued for unauthorized occupancy and use of National 
Forest System lands and facilities by mineral operators when such 
authorization is required. The technical amendments to 36 CFR part 261 
also clarify what constitutes residential occupancy as well as show 
there is a clear distinction between a special-use authorization and an 
operating plan.

Exemption From Notice and Comment

    Comments received on this proposed rule will be considered in 
adoption of a final rule, notice of which will be published in the 
Federal Register. The final rule will include a response to comments 
received and identify any revisions made to the rule as a result of the 
comments.

[[Page 26579]]

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 proposed rule is not significant. It 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 proposed rule would 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, nor 
the rights and obligations of recipients of such programs.
    Moreover, this proposed rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it 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. 
Therefore, a regulatory flexibility analysis is not required.

Environmental Impacts

    This proposed rule more clearly establishes when mineral operators 
can be issued a criminal citation for unauthorized occupancy and use of 
National Forest System lands and facilities when such authorization is 
required. Section 31.1(b) of Forest Service Handbook 1909.15 (57 FR 
43168; September 18, 1992) excludes from documentation in an 
environmental assessment or environmental impact statement ``rules, 
regulations, or policies to establish Service-wide administrative 
procedures, program processes, or instruction.'' This proposed rule 
falls within this category of actions and no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or an environmental impact statement.

Energy Effects

    This proposed rule has been reviewed under the Executive Order 
13211 of May 18, 2001, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use.'' It has been 
determined that this proposed rule does not constitute a significant 
energy action as defined in the Executive order.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any new 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.

Federalism

    The agency has considered this proposed rule under the requirements 
of Executive Order 13132--Federalism, and Executive Order 12875--
Government Partnerships. The agency has made a preliminary assessment 
that the proposed rule conforms with the federalism principles set out 
in these Executive orders; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Based on comments received on this proposed rule, the 
agency will consider if any additional consultations will be needed 
with the State and local governments prior to adopting a final rule.

Consultation and Coordination With Indian Tribal Governments

    This proposed rule does not have tribal implications as defined by 
Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments; therefore, advance consultation with tribes is not 
required.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630--Government 
Actions and Interference with Civil Constitutionally Protected Property 
Rights. It has been determined that the proposed rule does not pose the 
risk of a taking of private property.

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988--
Civil Justice Reform. If this proposed rule were adopted, (1) all State 
and local laws and regulations that are in 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 to challenge its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Forest Service 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 would not 
be required.

List of Subjects in 36 CFR Part 261

    Law enforcement, Mines, National Forests.

    Therefore, for the reasons set forth in the preamble, amend subpart 
A of part 261 of Title 36 of the Code of Federal Regulations as 
follows:

PART 261--PROHIBITIONS

Subpart A--General Prohibitions

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f), 
1133(c), (d)(1), 1246(i).

    2. Amend Sec.  261.2 Definitions, by revising the definitions for 
motorized equipment and operating plan, and adding a definition for 
residence to read as follows:


Sec.  261.2  Definitions.

* * * * *
    Motorized equipment means any machine activated by a nonliving 
power source except small battery-powered handcarried devices such as 
flashlights, shavers, Geiger counters, magnetometers, seismographs, and 
cameras.
* * * * *
    Operating plan means the following documents, providing that the 
document has been issued or approved by the Forest Service: A plan of 
operations as provided for in 36 CFR part 228, subparts A and D, and 36 
CFR part 292, subparts C and G; a supplemental plan of operations as 
provided for in 36 CFR part 228, subpart A, and 36 CFR part 292, 
subpart G; an operating plan as provided for in 36 CFR part 228, 
subpart C, and 36 CFR part 292, subpart G; an amended operating plan 
and a reclamation plan as provided for in 36 CFR part 292, subpart G; a 
surface use plan of operations as provided for in 36 CFR part 228, 
subpart E; a supplemental surface use plan of operations as provided 
for in 36 CFR part 228, subpart E; a permit as provided for in 36 CFR

[[Page 26580]]

251.15; and an operating plan and a letter of authorization as provided 
for in 36 CFR part 292, subpart D.
* * * * *
    Residence means any temporary or permanent, natural or fabricated 
structure or object including but are not limited to, boats, buildings, 
buses, cabins, houses, lean-tos, mills, motor homes, pole barns, 
recreational vehicles, sheds, shops, tents, trailers, caves, cliff 
ledges, and tunnels which is being used as, or designed to be used as, 
living or sleeping quarters, in whole or in part, by any person, 
including a watchman, except structures or objects used for camping.
* * * * *
    3. Amend Sec.  261.10 Occupancy and use, by revising paragraphs (a) 
and (b) and adding (p) to read as follows:


Sec.  261.10  Occupancy and use.

* * * * *
    (a) Constructing, placing, or maintaining any kind of road, trail, 
structure, fence, enclosure, communications equipment, significant 
surface disturbance, or other improvement on National Forest System 
land or facilities without a special-use authorization, contract, or 
approved operating plan when such authorization is required.
    (b) Constructing, reconstructing, improving, maintaining, 
occupying, or using a residence on National Forest System land unless 
authorized by a special use authorization or approved operating plan 
when such authorization is required.
* * * * *
    (p) Use or occupancy of National Forest System land or facilities 
without an approved operating plan when such authorization is required.

    Dated: March 26, 2007.
Abigail R. Kimbell,
Chief, Forest Service.
 [FR Doc. E7-8706 Filed 5-9-07; 8:45 am]
BILLING CODE 3410-11-P