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108th Congress                                            Rept. 108-218
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 2




               September 10, 2003.--Ordered to be printed


  Mr. Pombo, from the Committee on Resources, submitted the following

                          SUPPLEMENTAL REPORT

                        [To accompany H.R. 1038]

    This supplemental report shows the dissenting and minority 
views with respect to the bill (H.R. 1038), as reported, which 
was inadvertently omitted in part 1 of the report submitted by 
the Committee on Resources on July 17, 2003 (H. Rept. 108-218, 
pt. 1).

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                      Washington, DC, July 7, 2003.
Hon. Scott McInnis,
Chairman, Subcommittee on Forests and Forest Health, Committee on 
        Resources, House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter sets forth the views of the 
Department of Justice on H.R. 1038, the ``Public Lands Fire 
Regulations Enforcement Act of 2003.'' H.R. 1038 seeks to 
increase the penalties to ``a fine of not less than $1,000 or 
imprisonment for not more than one year, or both'' for a 
violation for fire regulations on public lands, National Park 
Service lands, or National Forest System lands when damage to 
public or private property results from the violation. The 
organic statutes applicable to these lands establish offenses 
for certain violations of fire regulations. Those offenses 
include minimum fines, longer prison terms for National Park 
Service and Forest Service offenses than for offenses occurring 
on lands managed by the Bureau of Land Management (BLM), and a 
heightened burden of proof for establishing violations on BLM 
lands. Through the use of the term ``notwithstanding,'' 
however, the proposed legislation appears to preempt the 
provisions of the various organic statutes and instead create 
new offenses. The bill does not alter penalties for violating 
other regulations currently found in the organic statutes of 
BLM (43 U.S.C. Sec. 1733(a)), the National Park Service (16 
U.S.C. Sec. 3), and the Forest Service (16 U.S.C. Sec. 551).
    The proposed legislation invites a number of questions. One 
is whether the goal of H.R. 1038 is to increase imprisonment 
terms, fines, or both. The bill increases jail time from six 
months to one year for offenses under the organic statutes for 
the National Park Service and Forest Service. By increasing the 
maximum term of imprisonment, however, this proposed 
legislative ``fix'' complicates the resolution of these cases 
in federal court in at least two ways. First, it disrupts the 
availability of streamlined disposition procedures that federal 
land management agencies currently use to write ``tickets'' 
under Forfeiture of Collateral Schedules established in most 
judicial districts. Such tickets dispose of most of the 
offenses the agencies detect and prosecute. Second, by 
increasing the maximum imprisonment term to one year, it allows 
anyone who gets a ticket to demand a jury trial. The 
legislation also fixes a minimum fine but not a maximum one. If 
the goal is to impose higher fines, however, these can be 
achieved under existing law without creating these collateral 

Increase fines under existing authority

    Notwithstanding the maximum fine amounts stated in each of 
the organic statutes, which are either $500 or $1,000, the 
actual maximum amounts available to courts are much higher. 
Since 1987, fines for all federal offenses were increased 
across the board to the maximums set under 18 U.S.C. Sec. 3571 
if the fine amounts in the statute creating the offense, such 
as the organic acts for the federal lands covered by H.R. 1038, 
were lower. Consequently, for current Forest Service and 
National Park Service offenses, whose maximum penalties are six 
month imprisonment, the maximum fines are now $5,000 (for 
individuals), $10,000 (for organizations), or an alternative 
fine based upon twice the pecuniary loss or gain from the 
offense. For BLM offenses, where the maximum term of 
imprisonment is one year, fines were increased by 18 U.S.C. 
Sec. 3571 to a maximum of $100,000 (for individuals), $200,000 
(for organizations), or a similar alternative fine.
    H.R. 1038 appears to overcome the operation of 18 U.S.C. 
Sec. 3571 pursuant to which much higher fines than those stated 
in the organic statutes already are authorized, including fines 
that capture the ``Pecuniary loss'' caused by a defendant's 
criminal conduct such as pecuniary damage to public or private 
property. These higher amounts can be adopted in Forfeiture of 
Collateral Schedules used by courts to expedite resolution of 
minor federal offenses. Forfeiture of Collateral Schedules, 
which are established in most judicial districts by local rule, 
provide for payment of a fixed sum in lieu of a court 
appearance by someone charged with a minor federal offense. See 
Federal Rule of Criminal Procedure 58(d)(1). The fixed-sum 
payment that can be required in lieu of an appearance is the 
statutory maximum authorized by law.
    Most federal judicial districts currently use the 
forfeiture of collateral practice for violations of land 
management rules, fish and wildlife rules, improper parking, 
illegal camping, speeding, and other non-felony, minor 
offenses. By local court rule, Forfeiture of Collateral 
Schedules list the offenses for which tickets can be issued and 
the amount of collateral that must be posted for each offense 
(i.e., the amount of the ticket). Each federal agency usually 
prepares separate schedules. Some, but not all, schedules 
include offenses with maximum terms of imprisonment of one year 
or identify aggravating circumstances used to increase the 
amount of collateral to be posted for a particular offense. 
Forfeitures of collateral are authorized up to the maximum 
amount of fine authorized by law. Whether or not H.R. 1038 is 
adopted, these schedules can and should be amended and updated 
by each agency. While the practice may vary between the 
districts, it typically involves submission of proposed 
amendments by the agency to the United States Attorney, who 
first approves the amendments, then forwards them to the 
district court for approval and publication or posting as part 
of the district's local rules.
    One drawback of the proposed legislation is that, instead 
of establishing a maximum fine, it imposes ``a fine of not less 
than $1,000.'' Subsection 2(c) of the legislation further 
exempts the fine amounts in subsections 2(a) and (b) from the 
enhancement provisions of 18 U.S.C. Sec. 3571. See 18 U.S.C. 
Sec. 3571(e). This drafting language is imprecise and, 
therefor, creates an unintended result--a $1,000 minimum fine 
with no apparent maximum.

This legislative fix guarantees every defendant a right to a jury trial 
        and potentially disrupts how tickets are issued

    Each of the offenses listed under subsections 2(a) and (b) 
have maximum one year terms of imprisonment. Under the Sixth 
Amendment to the United States Constitution, a right to a jury 
trail attaches to every offense punishable by more than six 
months incarceration. Blanton v. City of North Las Vegas, 489 
U.S. 538, 542-44 (1989). Consequently, every defendant charged 
with an offense under this proposed legislation will have a 
right to a jury trial, no matter how minor the violation. In 
addition to a jury trial, the defendant can require that a 
district court judge take his plea and hear his case if the 
ticket is contested. Fed. R. Crim. P. 58(b)(3). There are 
several likely results if the land management agencies seek to 
enforce these higher penalties under a ``ticketing'' scheme. 
First and most likely, there will be an increase in demands for 
a jury trial by those ticketed. The local U.S. Attorney's 
Office then will be forced to choose between prosecuting them 
all, or just prosecuting the most serious and refusing to 
prosecute the others (i.e., dismissing the tickets). Second if 
court calendars become clogged with demands for jury trials, 
the court can end the practice of writing tickets for these 
crimes or recommended a procedure to guarantee that the court 
sees only the most serious cases. The likely result is that 
each case would be individually referred to the appropriate 
U.S. Attorney's Office before it is prosecuted and, as a 
practical matter, the number actually prosecuted would be 
limited due to limited prosecutorial resources.
    There are several alternatives available to avoid creating 
a right to a jury trial (and the potential attendant problems) 
whenever a citation notice or ticket is issued by a law 
enforcement officer for a National Park Service or Forest 
Service offenses created by H.R. 1038, while still allowing 
imposition of significantly higher monetary penalties for such 
offenses. One alternative is to review and amend Forfeiture of 
Collateral Schedules to adopted the highest fines permitted 
under existing law, which are determined using the enhanced 
fine provisions of Title 18. A second alternative is to leave 
the six-month maximum prison terms in the organic statutes for 
the National Park Service and Forest Service alone, and simply 
consider increasing the maximum fine amounts. The maximum fines 
can be raised significantly without creating a right to a jury 
trial. Indeed, courts have found the imposition of higher fines 
such as those under some federal wildlife statues (e.g., 
$25,000 under the Endangered Species Act, 16 U.S.C. 1540(b)(1), 
and $15,000 under the Migratory Bird Treaty Act, 16 U.S.C. 
707(a)) do not establish such a right. These higher fine 
amounts allow the posting of correspondingly higher amounts of 
collateral under the forfeiture of collateral process. A third 
alternative is to create two-tiered penalties similar to those 
created for offenses under the National Wildlife Refuge 
Administration Act, 16 U.S.C. Sec. 668dd(f). The National 
Wildlife Refuge System Improvement Act of 1998, P.L. 105-312, 
created two sets of penalties--a maximum one-year imprisonment 
for a person who ``knowingly'' violates the Act or any 
regulation issued there under and a six-month penalty for any 
other violation. Such a system permits each agency to exercise 
its discretion to seek maximum one-year penalties in 
appropriate cases, along with potentially higher fines, yet 
resolve the bulk of the cases underthe six-month penalty 
provisions by issuing tickets that do not create the right to a jury 

Where does this legislation fit in the organic statutes?

    The current BLM provisions requires proof that a person 
``knowingly and willfully'' violated the regulations. By using 
the language ``notwithstanding'' to introduce new penalty 
provisions, however, H.R. 1038 appears to create new offenses, 
rather than amendments to those established by the organic 
statutes, and thus preempts any language in the organic 
statutes regarding the Government's burden of proof. H.R. 1038 
appears to lower that burden of proof for the offenses it 
creates because it preempts the language from the organic 
statute establishing that burden. Consequently, the proof 
necessary to establish a violation of BLM fire regulations 
would change depending whether there was evidence of damage to 
public or private property, as required by H.R. 1038. For 
example, where no damage can be shown, the Government would be 
required to prove the violation was ``knowingly and willfully'' 
committed in violation of the organic statute. Conversely, 
where the Government can prove the required damage, it would 
not have to prove that the offense was ``knowingly and 
willfully'' committed. Consequently, even among BLM fire 
regulations, the proof necessary to show a violation of BLM 
regulations would differ substantially depending upon whether 
damage to public or private property resulted, with the higher 
burden of proof required when no damage can be shown.
    Amendments to the organic statutes themselves, however, can 
establish the minimum penalties sought for these specific 
regulatory violations and avoid any inconsistency among BLM 
offenses by leaving the burden of proof the same for all BLM 
offenses, including fire regulations violations that result in 
damage to public or private property. We note, however, that 
harmonizing the burdens of proof for BLM lands would not 
address the inconsistencies in the burden of proof requirements 
for the other categories of Federal lands affected. We would be 
pleased to work with the Committee to draft appropriate 
language to amend the organic statutes.
    In addition to the discrepancies between the requisite 
burden of proof for violations on BLM lands, H.R. 1038 creates 
maximum one-year imprisonment terms for offenses on National 
Park Service and National Forest System lands and, therefore, 
subjects such offenses to the Federal Sentencing Guidelines 
when a defendant is formally charged and convicted in Federal 
district court. The Sentencing Guidelines, established by the 
United States Sentencing Commission, create determinative 
sentencing by limiting a court's sentencing discretion to a 
matrix of published sentencing criteria that must be applied 
when fixing the sentence for a defendant convicted of any 
Federal offense punishable by a term of imprisonment of one 
year or more. These criteria include a series of factors, 
beginning with the severity of the offense, then require courts 
to factor in the defendant's criminal history and other 
published adjustments to calculate a sentence. The BLM statute 
used to calculate sentences for these offenses now has such a 
guideline, which provides for probation in most cases.
    Finally, if one of the goals here is to allow the agencies 
to recover certain costs through the disbursement of fines or 
collateral amounts collected to them, then a comparable 
provisions ought to be inserted to allow victims, including the 
Federal Government, to obtain restitution from the 
perpetrators. Defendants convicted of Title 16 offenses are not 
specifically required to pay restitution, either mandatory or 
discretionary, under 18 U.S.C. Sec. 3663 or Sec. 3663A of the 
Federal Criminal Code that is generally applicable to many 
Federal crimes. Instead, the sentencing court may, but is not 
required to, order restitution as a condition of probation, 18 
U.S.C. Sec. 3563(b)(2), or supervised release under 18 U.S.C. 
Sec. 3583(d). To insure that restitution is paid, the mandatory 
restitution provisions of the Federal Criminal Code must 
include H.R. 1038's new offenses. We further note that, 
pursuant to section 2(d), all fines and collateral amounts 
collected for Federal crimes under this bill would not be 
deposited into the Crime Victims Fund as they otherwise would 
be under current law.
    Thank you for the consideration of our views. If we can be 
of further assistance in this matter, please do not hesitate to 
contact us. The Office of Management and Budget has advised 
that there is no objection to the presentation of this report 
from the standpoint of the Administration's program.
                                      William E. Moschella,
                                        Assistant Attorney General.