ATT 4 Ottawa NFTTPP.pdf

TIMBER THEFT PREVENTION PLAN

OTTAWA NATIONAL FOREST

TABLE OF CONTENTS

PAGE

INTRODUCTION

OBJECTIVES

OPERERATING PROCEDURES

1. Organization and Staffing

2. Cross-Training and Coordination

3. Timber Sale Preparation

4. Timber Sale Administration

5. Regulatory Inspections

6. Documentation

7. TM—LEI Timber Theft Protocol

LAW ENFORCEMENT ACTIONS

1. General

2. Crime Scene Protection

3. Issuance of Violation Notices

SUSPENSION AND DEBARMENT

1. Mandatory Referral

2. Exception to Mandatory Referral

3. Case Documentation and Submission

PREVENTION

1. Theft Prevention Plots

2. Sale Area Layout

3. Tracer Paint Security

4. Theft Prevention Outside Sale Area

ACCOUNTABILITY

Responsibility

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INTRODUCTION

The intent of the Ottawa National Forest (ONF) Timber Theft Prevention Plan (TTPP) is to improve and standardize theft prevention and detection measures by gaining consistency at the Forest level. All employees of the Forest Service share in the responsibility for the prevention, detection, reporting, and investigation of timber theft.

This plan is intended to promote effective coordination and communication with Timber Management

(TM), Law Enforcement & Investigations (LEI) and other staff groups when addressing violations of laws and regulations, noncompliance with timber sale contract provisions resulting in resource degradation, special forest products program administration, and unlawful cutting or removal of timber on adjacent public and private lands within National Forest boundaries.

The TTPP will also address the prompt detection, apprehension and prosecution of individuals entering the National Forest for the purpose of stealing timber or other forest products. Timber theft prevention on the ONF is a joint effort between TM and LEI. Involvement of State and Local law enforcement agencies and the public is welcomed to assist in observation and reporting of all unlawful activity affecting the National Forest System.

All direction in the R9 TTPP is incorporated by reference and shall be adhered to on the ONF. The

ONF TTPP will be reviewed annually and amended as needed to comply with any new or revised regulations or agency policies, including the R9 TTPP.

OBJECTIVES

This plan was developed to deter or prevent timber theft and improve our ability to detect, apprehend, and prosecute violators when theft does occur. The objectives of this plan are to:

Provide the skills and coordination necessary to prevent timber theft and prosecute timber theft when it does occur.

Promote and develop positive employee perceptions and attitudes regarding law enforcement and regulatory responsibilities in order to enhance and maintain timber and forest products accountability.

Develop and use processes and procedures that will reduce vulnerability and increase our ability to identify and detect product loss and theft.

Strengthen coordination between timber management and law enforcement so legal action can be aggressively and effectively pursued when theft does occur.

Promote and encourage coordination between National Forests for the prevention and detection of collusive bidding and market manipulation.

OPERATING PROCEDURES & ACTIONS

1. Organization and Staffing

As Forest Service budgets continue to be influenced by other national priorities; it is critical that the agency continue to explore ways to be more efficient in both TM and LEI program areas. Every opportunity to develop and maintain efficiencies and will be explored. Timber sale operations cannot be managed using shortcuts or deviations from existing policies or prescribed processes, nor can we accomplish desired objectives with untrained or understaffed organizations. It is recognized that we cannot sacrifice standards of professionalism or accountability to achieve the desired efficiency.

The Forest Supervisor and Patrol Captain will take the necessary steps to ensure qualified personnel are in place to effectively accomplish timber management and regulatory compliance program objectives. Training and certification standards for all TM and LEI personnel will meet the intent of

Forest Service Manual and Forest Service Handbook directives. The Forest Supervisor and Patrol

Captain will also insure that Forest Protection Officers (FPO) are trained and available for compliance and accountability work with Special Forest Product permits at appropriate times of the year.

The Forest will be committed to providing ground floor training and other opportunities that will provide a replacement workforce as key personnel leave the timber management program. When an individual has been selected for a future position as a timber sale administration team member, completion of the formal training required will be scheduled and completed within two years.

Experience plus training will lead to certification within four years.

A timber sale administration team consisting of the following positions will be established for each timber sale:

Contracting Officer

Forest Service Representative

Sale Administrator

Harvest Inspector (as needed)

Engineering Representative

Construction Inspector (as needed)

Contracting Officer’s Representative or Service Work Inspector (Stewardship Contracts)

In addition to the timber sale administration team, the Law Enforcement Officer (LEO) assigned to that

Ranger District or other administrative unit will serve as an ad hoc team member and will receive timely notification of sale activity and pre-work meeting dates. It is recommended that the district TM financial assistant provide the LEO with a copy of the timber sale map and prospectus upon each contract award. The LEO and Sale Administrator will serve as primary liaison between TM and LEI.

The Forest Contracting Officer will maintain training and certification records for all members of the timber sale administration team. The Forest Check Cruiser will maintain training and certification records for all certified timber cruisers and scalers. The Patrol Captain will maintain all training and certification records for LEI personnel including all LEO’s and FPO’s. The Forest Engineer will maintain all training and certification records for civil engineering personnel. Training records will include all refresher and recertification requirements and satisfactory accomplishment.

2. Cross-Training and Coordination

Law Enforcement will be represented on all formal ONF timber sale reviews/audits. They will focus on all aspects of timber theft prevention, report findings and recommend actions.

Both LEI and TM personnel shall receive ongoing cross-training and updates to familiarize each with timber sale and forest products administration and regulatory compliance and law enforcement. This is intended to provide a basis of understanding for each to assist the other in a successful resolution of timber and forest products violations.

TM—LEI cross-training and coordination meetings will be held a minimum of every two years. These meetings will require at least four hours of timber theft prevention training as well as an evaluation of the integration between TM and LEI personnel. All LEI personnel and timber sale administration team members assigned to the ONF will be required to attend. Affected Line Officers and other TM personnel are encouraged to attend. LE&I personnel shall attend at least one quarterly Ottawa Timber

Sale Administration Team meeting per year.

It is strongly recommended that Timber Sale Administrators and Harvest Inspectors be trained and certified as Forest Protection Officers.

3. Timber Sale Preparation

Standards of timber sale preparation shall be consistent with all regulations, Forest Service Manual and

Forest Service Handbook policy directives. All training and certification standards for timber measurement and timber measurement personnel will be met without exception.

Supplemental timber sale preparation standards for the ONF are as follows:

Timber Cruising

All contract markers will be certified by a Forest Check Cruiser before they are allowed to cruise

National Forest timber. They will meet the same standards and frequency of certification as Forest

Service personnel.

Only tracer paint with a tracer element registered to the USDA shall be used for timber sale cruising applications.

When conducting a sample tree cruise in units where trees are to be harvested by designation; all designated trees will have a spot of paint put on them to insure accurate tree counts between sample trees (no stump marks).

Paint Application

The ONF will follow the National paint color scheme for tree marking paint as found in WO FSH

2409.12, 71.21 – Exhibit 1. Any deviation shall be coordinated with LEI and documented in the sale folder. Only tracer paint with a tracer element registered to the USDA shall be used for timber sale marking applications.

Boundaries Trees shall be marked at eye level or higher with orange paint. Mark trees that are expected to last for the duration of the timber sale along payment unit and protected area boundaries.

Payment units and protected areas will be completely encircled by painted boundary trees. Boundary trees will be inter-visible during the leaf-on period. The only exception permitted would be where the payment unit is intended to follow a dominant feature on the land and will be shown on the sale area map; such as a system road or powerline.

o Exterior boundaries - Trees shall be marked at eye level or higher with three slash lines facing into the respective payment unit and a stump mark. Respective payment unit number shall be painted on a portion of the boundary trees. 1/ o Interior (common) boundaries - Trees shall be marked at eye level or higher with two slash lines facing into the respective payment units and a stump mark. Respective payment unit numbers shall be painted on a portion of the boundary trees. 1/ o Protected areas - Trees shall be marked at eye level or higher with three slash lines and “PA” facing away from the protected area and a stump mark. 1/ o No equipment zone boundaries-Trees shall be marked at eye level or higher with one slash line facing away from the zone into the payment unit.

Unless there are overriding circumstances Cut Tree Marked (CTM) units and DxSPP units with additional trees to be cut shall be marked with blue or green paint. Road units shall be CTM with yellow paint.

o Sawtimber - Trees shall be marked with a single two inch wide reasonably horizontal stripe of paint on opposite sides of the tree at eye level or higher along with two stump marks. Eye level marks shall cover the entire face of the bole and in all circumstances be visible from all sides of the tree. On sloped ground, eye level marks shall be on the uphill and downhill side of the tree.

1/ o Pulpwood - Trees shall be marked with a single two inch wide reasonably horizontal stripe of paint on opposite sides of the tree at eye level or higher along with one stump mark. Eye level marks shall cover the entire face of the bole and in all circumstances be visible from all sides of the tree. On sloped ground, eye level marks shall be on the uphill and downhill side of the tree.

1/

Leave Tree Marked (LTM) units & leave trees within DxSPP units shall be marked with a single two inch wide reasonably horizontal stripe of orange paint on opposite sides of the tree at eye level or higher along with a stump mark. Eye level marks shall cover the entire face of the bole and in all circumstances be visible from all sides of the tree. On sloped ground trees shall be marked on the uphill and downhill side of the tree. 1/

Reserve Trees - Trees shall be marked with a single two inch wide band of orange paint encircling the tree and “RT” at eye level or higher along with two stump marks. If there is more than one type of reserve tree on a sale; the banding needs to be different in order to differentiate in the contract. 1/

When de-marking of painted trees is necessary prior to sale advertisement; black paint shall be used to completely cover the eye level and stump marks. This also applies to boundary trees. Any demarking of painted trees shall be documented in the sale file.

1/ Stump marks - All stump marks shall be made so a portion of the mark is touching the ground, and will remain once the tree has been cut to contract specifications. Stump marks shall be a minimum of 12 square inches (i.e. four inch diameter spot). Mark should be concentrated in a crevice of the tree relatively free of moss or lichens. On sloped ground, the stump mark shall be placed on the downhill side of the tree. A long tail will be incorporated on boundary trees, reserve trees, and cut trees (CTM/DxSPP) to help verify presence of the mark during deep snow/winter logging operations.

Scaled Sales

In Region 9, the Regional Forester must approve the use of scaled sales. Review “Scaled Sales” section on page 4 of the 05/2018 R9 TTPP for circumstances that may warrant consideration for scaling.

Bid Opening

The Line Officer will designate a Bid Custodian and Sale Officer in writing. The designations will be to a named individual and not to a position or job title. The Bid Custodian is responsible for receipt and custody of sealed bids and posting of bids; the Sale Officer is responsible for the opening and review of sealed bids.

There will be a Collection Officer present at the bid opening to account for cash receipts.

There will be a Contracting Officer readily available during all bid openings to address any bidding irregularities.

4. Timber Sale Administration

Forest Service Representatives, Timber Sale Administrators and Harvest Inspectors are the primary on-the-ground personnel responsible for ensuring consistency in the interpretation, administration, and compliance of the terms and conditions of a timber sale contract. Contract requirements must be administered with firmness, fairness and consistency. Only qualified personnel may administer timber sale contracts. Certification requirements for sale administration team members are found at FSH

2409.15 Chapter 10 and FSM 2452.4.

Supplemental timber sale administration standards for the ONF are as follows, with special emphasis on the accountability of additional timber:

All Contracting Officers will be delegated their authority to sell and dispose of National Forest timber by the Regional Forester. The Contracting Officer for each timber sale will designate in the award letter the other members of the timber sale administration team by name. All award letters will have the appropriate Exhibit 1 of Supplement R9 R0 FSM 2450.46 as an attachment to show the contract responsibilities for each timber sale administration team member.

Prior to commencement of timber sale operations; a pre-work meeting with the Purchaser and/or

Purchaser’s Representative is encouraged. This meeting will be documented in writing and included in the sale folder. The Forest Service Representative and/or Timber Sale Administrator will generally conduct the pre-work meeting. Engineering personnel will be present if there is any specified road work. The LEO assigned to the sale will receive a documented written request

(generally an e-mail message) to attend. When feasible, the written request will be at least five work days before the meeting. The LEO will make every effort to attend unless not available because of other work deemed more critical. In the absence of LEI attendance, the person conducting the pre-work meeting will discuss the role of LEI in timber accountability and theft prevention.

Additional Timber - Only tracer paint with a tracer element registered to the USDA shall be used for designating additional volume. Additional timber will be designated in a color and/or manner different from the original color/manner used to mark the payment unit. Unless there are overriding circumstances it will be the policy of the ONF that additional timber shall be marked with yellow paint at eye level or higher and at the stump.

o Sale administration team members marking and cruising additional volume must be Certified

Cruisers.

o “Additional timber” is identified by mutual agreement. Sale administration personnel will ensure that the timber sale inspection report clearly states the reason for the additional timber, applicable contract provision(s) and is signed by both the Purchaser’s Representative or Field

Representative and the Forest Service Representative or Contracting Officer.

o No additional timber will be cut without prior designation, measurement and payment.

Merchantable trees run over, pushed over or otherwise damaged by timber harvesting equipment in order to circumvent adherence to additional timber policy will be reviewed by

LEI and TM for criminal violation or contractual noncompliance.

o If significant amounts of additional timber are necessary, consultation with a certified silviculturist and other appropriate resource specialists will occur to assure the best marking prescription.

o For amounts of additional timber exceeding 40ccf (50 cords) per incident, cruise shall be completed by a certified cruiser(s) not part of the sale administration team; or an independent check cruise will be performed by a certified cruiser other than the sale administration team member who marked the volume.

o Additional and delete timber cruise data will be recorded on a separate tally cards. The batch number/color of paint will be recorded, the payment unit and IR date of additional timber will be documented and the person marking and cruising will date and sign the card. Attach the cruise card and cruise results showing the additional volume to form FS-2400-66. The FS-

2400-66 will be signed by the Forest Service Representative/Timber Sale Administrator and the Timber Financial Assistant. Make sure that all additional timber is accounted for in timber sale accounting in the month it was marked and that it is applied to the payment unit from which it came.

Although discouraged; if a boundary tree is marked as additional timber, the yellow paint shall be placed adjacent to the boundary paint (not over) in order to document that the tree was designated prior to removal.

Any boundary tree damaged through the Purchaser’s operations shall not be designated as additional timber. Any damaged boundary tree shall remain on site to ensure the integrity of the boundary.

When de-marking of painted trees is necessary after sale advertisement; black paint shall be used to partially cover the eye level and stump marks. A portion of the original paint must remain visible to document that the tree was originally painted. This also applies to boundary trees.

When re-marking of painted trees is required; the original paint marks shall remain to document that the tree was originally marked. Boundary trees shall be “freshened” with orange paint.

Purchaser’s use of paint on the sale area must be approved in advance and documented by written agreement between the Forest Service Representative and the Purchaser’s Representative. No timber shall be marked with a similar color paint or manner as used by the Forest Service. Red is not an acceptable color.

o Purchaser’s use of paint on cut trees at the landing does not require approval but shall be a different color than what was used on the sale by the Forest Service.

Timber Sale Inspection Report (form R9-2400-74 or FS-2400-0081) shall be utilized to document all sale inspections. Completion of the report will be thorough and accurate. This includes the payment unit status area, all applicable work progress items and detailed comments on observations of Purchaser’s operations. The comments section will reference the appropriate contract provisions. All cutting of undesignated timber, excessive damage to timber, other resource damage, personnel accompanying the Sale Administrator, and who’s on site will be documented.

Any mutual agreements to correct contract non-compliance, approval of actions taken or acceptance of work will require the inspection report to be signed by the Purchaser or their designated

Purchaser’s or Field Representative. Subsequent inspection reports will document whether non-compliance items were corrected. All timber sale inspection reports will be reviewed and signed off on by the Forest Service Representative for the sale. The District Line Officer should do monthly spot reviews of inspection reports and sign/date those reviewed.

The minimum inspection frequency of active timber sales will be at a level to assure Purchaser’s operations are in compliance with the terms and conditions of the contract. Active sales with highly mechanized crews and high production rates will be inspected at least once per week. Inactive sales will be checked occasionally to make sure they are inactive; these visits will also be documented.

Tracer paint checks will be made by sale administration personnel at least once per month on each active payment unit. Documentation will be made on the inspection report. As paint becomes older and less prominent on trees, the tracer paint check may not always be conclusive. In these cases, record on the inspection report ONLY that a tracer paint check was made on the payment unit.

On a separate inspection report, describe the tracer paint deficiency(s) and write on it: “This inspection report is NOT to be sent to the Purchaser”. Consult with the Contracting Officer and LEI on steps to take next.

LE&I personnel should participate on one active timber sale inspection with a Forest Service

Representative, Sale Administrator or Harvest Inspector monthly. A quarterly joint inspection will be required and documented on the sale inspection report and an LEO Sale Inspection Report.

Prior to recommending final acceptance of any payment unit, the Forest Service Representative or Timber Sale Administrator will document on the IR that all wood has been cut and removed, that all other obligations such as slash disposal, erosion control work, etc. have been completed and that there has been no unauthorized changes to or cutting outside the payment unit boundary. It is strongly recommended to do a final payment unit boundary check.

Disputes relating to the timber sale contract will be settled by the Contracting Officer. Prior to a final dispute resolution by the Contracting Officer, they will consult with the appropriate next higher level Contracting Officer.

Scaled Sales – In Region 9, the Regional Forester must approve the use of scaled sales. Review

“Additional requirements for weight scaled sales” on page 6 and 7 of the R9 TTPP and “Additional requirements for deck scaled sales” on page 7 of the R9 TTPP for sale administration requirements.

The Scaled Timber Sale Guidelines for the Eastern Region shall be adhered to.

5. Regulatory Inspections

Regulatory Inspections are those field inspections conducted by Law Enforcement Officers and Forest

Protection Officers who are not ordinarily members of the timber sale contract administration team.

The goal of these inspections is to enhance timber and forest products accountability and to prevent and/or detect crimes and regulatory violations associated with timber and forest products operations.

The frequency of regulatory inspections is determined by availability of LEI resources in coordination with local line officer priorities.

Law Enforcement Officers shall make every effort to attend at least one pre-work meeting per calendar quarter in their area of responsibility. It is the responsibility of TM to provide LE&I with, as much as feasible, at least five work days advance notice of when a pre-work meeting is planned.

Law Enforcement Officers shall conduct random, independent timber sale inspections and patrols to maintain a highly visible law enforcement presence at least once a month unless they are needed for higher priority work. Attention will be paid to public safety and protection of private property, as well as observations that would indicate theft of National Forest timber. Tracer paint tests will be performed during these inspections. Written documentation of these inspections/patrols shall be forwarded to the Sale Administrator for inclusion in the sale folder. It is LEI’s responsibility to contact the sale administrator for a listing of active timber sales. This will allow LEI to adequately patrol and monitor commercial timber sales, and identify activities of concern.

LE&I personnel should participate on one active timber sale inspection with a Forest Service

Representative, Sale Administrator or Harvest Inspector monthly. A quarterly joint inspection will be required and documented on the sale inspection report and an LEO Sale Inspection Report.

Law Enforcement Officers will assist timber sale administration team members with inspecting payment unit boundaries when there is concern the boundary may have been altered. Other general boundary inspections are encouraged.

The administration of special forest products permits is the shared responsibility of TM, LE&I and the respective District Rangers. Law Enforcement Officers will coordinate with TM and District Rangers during periods of peak forest products activity to ensure that adequate Forest Protection Officer staffing is provided for the administration of special forest products permits. District Rangers and TM will involve LEI personnel in matters of special forest products policy formulation and program implementation.

With assistance from district Forest Protection Officers, Law Enforcement Officers are responsible for special forest products load accountability checks.

6. Documentation

Documentation of timber sale activity is critical to both contract administration and prosecution of criminal conduct.

While not required, it is strongly recommended that a pre-work meeting be conducted and documented. A well-documented pre-work meeting sets the stage for the theft prevention message.

During this initial meeting with the purchaser, both TM and LEI concerns regarding timber theft, additional timber, tracer paint and other emphasis items should be documented in detail and signed by both parties. Timber Sale Administrators and Harvest Inspectors are required to use the Timber Sale

Inspection Report (form R9-2400-74 or FS-2400-0081) to document all sale inspections.

The use of the Timber Sale Inspection Report was described under the Timber Sale Administration section. It is a critical report because subsequent contract compliance and/or law enforcement actions are extremely dependant on the thoroughness and accuracy of the information it contains

All LEI visits to timber sale areas, including load accountability checks conducted in association with active timber sales or permits, will be documented on form FS 5300-1, Incident Report or LEO Sale

Inspection Report. When no violations of contract, law or regulation are detected, the Incident Report will be recorded as non-criminal, administrative, with an offense code of FSM 2400. A copy of each

FS 5300-1/LEO Sale Inspection Report will be provided to the Sale Administrator responsible for that timber sale. All such LEI records will be entered into LEIMARS for later query and data retrieval.

The Patrol Captain or LEI Zone Administrative Assistant will ensure a copy of the FS 5300-1 is sent to the SO for the Official Contract folder. All LEI Forest Products permit compliance checks will be documented in the same manner.

All items and issues requiring Purchaser's contractual corrective action will be documented when the requirements have been satisfied/completed. The intent of this policy is to properly identify issues and document closure of them. All regulatory violations will be documented on form 5300-1, Incident

Report.

7. TM-LE&I Timber Theft Protocol

See Timber Trespass Guidelines & Procedures for the ONF, Appendices A and B.

See also R9 TTPP, 05/2018, pages 16-19.

LAW ENFORCEMENT ACTIONS

1. General

There are two objectives for coordination between TM staff and LEI personnel. First, to ensure cooperation before and during investigations of unauthorized cutting and excessive damage; and second, to ensure appropriate actions are taken regarding contractual obligations, while preserving options for criminal and civil remedies where appropriate. All incidents involving the cutting of trees or timber outside the scope of the provisions of the appropriate contract or permit will be dealt with using the standard of strict liability; appropriate law enforcement action will be taken in every case, even when contractual remedies are in place.

All Forest Service employees have the responsibility for and are required to notify LEI when undesignated timber is cut or damaged, or resource damage has occurred. This notification to LEI must be within 48 hours of discovery. If willful theft or damages are suspected, notification will be within 24 hours. ALL CUTTING OF UNDESIGNATED TIMBER WILL BE REPORTED.

The decision to take a law enforcement action will be made by LEI personnel in consultation with the

U.S. Attorney. Law enforcement action may occur in concert with contractual actions.

A thorough investigation requires detailed information from timber staff and other resource disciplines.

Qualified timber management personnel will determine the total number of tree(s), volume and value of tree(s) and number of acres. This information will be provided to LEI as well as being documented on inspection report(s).

After the investigation is completed, LEI will relate the findings to the appropriate Line Officer. All contractual remedies will be the decision of the Timber Sale Contracting Officer.

2. Crime Scene Protection and Evidence Preservation

Crime scene protection and protection of physical evidence is fundamental to all criminal investigations. It is the responsibility of all Forest Officers and of LEI personnel in particular. LEI personnel have primary responsibility for and absolute discretion in securing the crime scene, and securing, seizing, protecting, and analyzing evidence of criminal conduct. TM personnel will assist to the degree their professional expertise is required and requested by LEI personnel. When crimes occur within the geographic boundaries of a timber sale area or timber sale payment unit, it may be necessary for LEI personnel to secure areas and equipment in furtherance of the criminal investigation. While it is recognized that LEI personnel have no contractual authority to affect a formal suspension of operations, they do have criminal justice authority to secure and collect evidence. If it becomes necessary for LEI personnel to curtail operations on a timber sale in any way, the sale administration team and Forest Supervisor will be immediately notified.

3. Issuance of Violation Notices

The issuance of a violation notice for the cutting and/or removal of undesignated timber may be initiated by any LEI personnel or the Timber Sale Administrator involved in the detection and documentation of the violation(s) if that Timber Sale Administrator is also currently certified as a

Forest Protection Officer. It is strongly recommended however that members of the sale administration team do not issue violation notices/warnings. Violation Notice(s) will be issued to the party or parties responsible whenever circumstances indicate negligence. Whenever willful criminal conduct is indicated or the value of timber unlawfully cut exceeds $5,000, a violation notice will not be issued, except after referral through the LEI chain-of-command for possible felony prosecution.

LEI personnel and Forest Protection Officers may exercise the discretion to require a defendant’s mandatory appearance before the presiding United States Magistrate Judge when, in that officer’s judgment, the offense is of an aggravated nature. Recidivism (repeat offenders), failure to comply upon notice, and serious public safety offenses may be considered by the citing officer. Additionally, when restitution to the United States, the National Forest, or any other victim exceeds the value of fines and restitution pursuant to the collateral forfeiture schedule, mandatory appearance should be considered. If recovery of damages can be made through operation of the timber sale contract

(liquidated damges), victim restitution should not be a factor in requiring the defendant’s mandatory appearance. Nothing herein shall prohibit the law enforcement officer from arresting a person for the commission of any offense against the United States, including those for which collateral may be posted in lieu of appearance.

Restitution values for trees or timber unlawfully removed will always be at fair market value or “mill-delivered” rates for the highest value of the product removed, unless contractual remedies for collection of “liquidated damages” are determined to be used. The Natural Resource Valuation Table found in the Collateral Forfeiture Schedule for the Western District of Michigan may be used for incidental amounts of timber or forest products restitution.

SUSPENSION AND DEBARMENT

1. Mandatory Referral Policy

Policy: Referral for Suspension and/or Debarment is mandatory for the following causes. There is no discretion about whether to refer a case for these causes. (FSM 2433.12)

Debarment may be imposed for causes that include (see 2 CFR 180.800 for more detail):

Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction.

Violation of Federal or State antitrust statutes, including those prescribing price fixing between competitors, allocation of customers between competitors, and bid rigging.

Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice.

Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a person.

Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program.

Causes for Suspension (FSM 2433.12)

Suspension may be imposed when there is adequate evidence of the commission of possible cause(s) for debarment as set out in paragraphs 1 and 2 of FSM 2433.11.

Indictment is adequate evidence for a suspension action. Referral for suspension is mandatory for actions including, but not limited to, Forest Service law enforcement investigations and/or indictments for causes listed in FSM 2433.11.

2. Exceptions to Mandatory Referral for Debarment and/or Suspension

Causes for debarment must be established by a preponderance of the evidence; that is, it is more likely than not that the alleged act or violation occurred. A cause for debarment does not require a referral if the person is not a participant in covered transactions.

A conviction or civil judgment for any of the causes for debarment meets this standard of evidence for initiating a debarment action. Where a cause for debarment is not based upon a conviction or civil judgment, ensure the referral to the debarring official is comprehensive and complete, and provides documentation sufficient to demonstrate the cause(s) for debarment by a preponderance of the evidence.

Violation notices (VN) that result in a court conviction of a participant in a covered transaction

(timber sale contract) for causes listed in this section constitute cause for debarment.

Violation Notices (VN) that result only in forfeiture of collateral by a participant in a covered transaction are not required to be referred to the debarring official on the basis of a conviction.

However, forest personnel must determine whether the facts and evidence leading to the issuance of the VN constitute the existence of a cause for debarment. If the answer is yes, the matter must be referred to the debarring official.

3. Case Documentation and Submission

See FSM 2433.2 – Investigation and Referral Process - for complete description of the steps and responsibilities for referring a case.

PREVENTION

1. Theft Prevention Plots

Districts are encouraged to establish monitoring plots on timber sales where a high potential for timber theft exists. Consideration should be given to high value products, substantial overbids, operator history, access to sale area, etc. Forest Service Law Enforcement personnel will take the lead in the establishment of timber theft prevention plots. This includes plot development and record maintenance. Each zone will specify at least one individual that will be available for plot establishment and monitoring. No contract administration personnel (SA or FSR) shall be given any information as to the existence or non-existence of monitoring plots on specific sales. Plots should be established and monitored on a representative number of sales annually.

Policy:

a. Theft prevention plots shall be used on an optional basis.

b. Plots can be established prior to or after sale award.

c. GPS and a witness are required in the establishment of plots.

d. Plot design and sampling methods will be mutually agreed upon by LEI and TM personnel (not SA or FSR) unless plots are established by LEI personnel only.

2. Sale Area Layout

Where possible; do not build “sharp” jogs into payment unit boundaries that could intentionally or accidently be straightened out during the course of harvest operations. Where this is unavoidable;

ensure that boundaries are well designated with documentation in the sale folder. Trees inadvertently marked across the payment unit boundary shall be de-marked by a certified cruiser in a manner as specified above in “Timber Sale Preparation-Paint Application”

3. Tracer Paint Security (Reference R9 TTPP, 05/2018, Pages 8-9)

Only tree marking paint containing a tracer element registered to the USDA will be used in designating any National Forest tree for removal, designation of leave and reserve trees, designating payment unit and protected area boundaries and all timber cruising applications.

Forest and District staff will maintain complete inventory records for tracer paint and perform sufficient tests to confirm that paint used to mark trees contains tracer element pursuant to FSH

2409.12, Chapter 72.3. Inventory records will track tracer paint from acquisition to the disposal of empty paint cans. Designated paint custodians shall test each new batch of tracer paint prior to use and document on the inventory form. Sale Administrators will perform tests to determine the presence of tracer elements in the paint on marked trees and document the results of such tests in sale inspection reports. Timber and log accountability audits and timber activity reviews will include procedures which verify compliance with Washington Office standards for tracer paint accountability and testing.

SO TM staff shall maintain a Forest master list of all District Ranger designated paint custodians and paint property managers. FSH 2409.72, describes direction for accountability and security requirement for tree marking paint.

Upon initial delivery to the paint storage facility, each batch number, color, and container size will be checked for tracer paint by placing a sample on a card stock tag or wooden paint stick. These samples will be maintained in a readily available location and will be retained for at least five years after the batch number/color has been used up.

When paint is transported to the field by Forest Service personnel or by contract markers, it will be outside the cab and in a locked container securely attached to the vehicle. The container will have a non-forest service lock system. A combination lock is the preferred method. On a limited basis, minor amounts (usually less than 24 quarts), can be transported inside the vehicle cab as long as it is in a properly sealed container that is properly fastened down. When away from the vehicle, the storage container and vehicle will be locked.

Contracting Officer’s Representative must check and document tracer paint security by the contractor. Documentation will include the pre-work discussion about tracer paint security, security of tracer paint on the job site and any off site paint storage facilities used by the contractor. Paint must remain locked in an area designated for that purpose and be accessible only to designated personnel. Contract requirements for paint security shall include the same requirements used by

Forest Service personnel. Unless otherwise agreed to in writing by the Contracting Officers

Representative; contract markers will be required to check-in/reconcile paint at least once every 10 business days.

TM personnel who use minor amounts of marking paint during a week will be required to check in/reconcile paint at least monthly. Government vehicles containing the paint used by these personnel will be in a locked garage every evening and the vehicle will also be locked. These personnel may be on a timber sale area after normal working hours and, if not a Paint Custodian or the Paint Property Manager, will not have paint room access to regularly check in/reconcile the paint.

Marking crews that normally use larger amounts of paint will be required to check in/reconcile paint on a daily basis.

Tracer Paint Accountability (Reference R9 TTPP, 05/2018, Page 8-9)

Paint Custodian(s) will issue paint and maintain the paint inventory.

Paint inventory will be maintained on form FS 2400-65, Issue and Inventory for Tracer Tree

Marking Paint. A separate form FS-2400-65 will be used for each batch number/color and container size to document paint use. All entries on FS-2400-65 will be made in ink and initialed by the Paint Custodian. Needed changes will be crossed out in ink and initialed by the Paint

Property Manager or Paint Custodian. Any discrepancy found at any time with the paint inventory will be reported immediately to the District Ranger and LEI.

Paint Custodian will reconcile the paint inventory at least once per month. This will be documented on FS-2400-65 and signed off in ink. The original will be kept at the District since check-out and check-in entries may cover more than one month.

The Paint Property Manager will reconcile the paint inventory every quarter. An original letter, signed by the Paint Property Manager, verifying accountability accompanied by a completed

Quarterly Paint Audit Record form will be sent to the Forest Supervisor and Contracting Officer.

The District will maintain copies of the quarterly audits and have them readily available.

The Forest Contracting Officer will perform an annual paint inventory audit at each storage location and report results to the Forest Supervisor.

Missing or Unaccounted for Tracer Paint

Immediately upon determination that tracer paint is missing or unaccounted for, the Paint Custodian or other TM personnel responsible for such paint will notify the District LEI officer and the Forest

CO/Timber Program Manager. As soon as practical, the district LEI officer will notify the Patrol

Captain and the Forest CO/Timber Program Manager will notify the Forest Supervisor.

LEI will conduct a thorough investigation to determine the facts and circumstances relative to the missing paint and to attempt recovery if theft is suspected. Timber Management personnel will provide all necessary assistance to the LEI investigation. TM/LEI will coordinate to recover missing paint if theft is not expected.

When missing or unaccounted for tracer paint is not recovered after all logical and reasonable efforts are made to recover it, an AD-112 (Report of Unserviceable, Lost, Stolen, Damaged or Destroyed

Property) will be completed and signed by the District Ranger. A letter to the file from the District

Ranger, along with the AD-112, will describe the efforts made to recover the tracer paint and that it is considered not recoverable.

Tracer Paint Can Disposal

All empty containers will be stored in a secure tracer paint storage facility until they are properly disposed of.

Empty cans will be disposed of by one of the following methods:

1) Rinsed (this does not apply to rain resistant formulation) to remove all soluble residue with rinse water going through the sewage system.

2) Sanding (or comparable material) the liquid residue and store the cans until the residue is completely dry.

Empty cans shall be disposed of through normal garbage/sanitation system or recycled.

4. Theft Prevention Outside Sale Areas

LEI and TM personnel share a responsibility for monitoring all timber and forest products removal activity occurring within the boundaries of the National Forest System. This includes the responsibility for administration of NFS forest products permits, monitoring tribal gathering on NFS lands, awareness of commercial timber sales occurring on other ownerships adjacent to NFS lands, and reporting any suspicious circumstances or suspected violations involving the cutting or removal of trees or timber.

Timber theft or trespass can occur outside the sale area:

Check to see if landline boundaries are posted, if private land or state land is adjacent to National

Forest System lands.

Consider GPS and traverse unit boundaries for permit record.

Recon the sale area boundary, to determine if there is a risk of trespass; i.e., boundary line difficult to follow, not enough paint on the boundary line trees, stump marks painted low, and presence of species of high value.

Types of theft and tree damage not associated with timber sale contracts:

1. Cutting of sawtimber, firewood, Christmas trees, for resale.

2. Theft associated with special use permits.

3. Cutting of trees to facilitate general uses such as hunting and camping.

4. Other forest products such as balsam boughs.

5. Cutting from other ownerships onto National Forest System lands (trespass).

If Forest Officers observe what is perceived to be a violation of the exercise of treaty-protected gathering rights, the matter is to be referred to the proper tribal authorities, i.e. tribal Resource

Management or Conservation Departments, or Great Lakes Indian Fish & Wildlife Commission

(GLIFWC) Conservation Wardens. Forest Officers will identify the individual(s) and request their tribal identification or enrollment card, and ascertain if a tribal permit has been issued prior to making the referral.

Suspicious activity occurring on other ownerships, such as state, county or tribal lands within the

National Forest boundaries, will be promptly reported to the Forest Service LEO for referral to the appropriate investigating agency.

Prior to beginning work on other non-timber sale contracts such as tree planting and TSI contracts, a pre-work meeting is held by the appropriate government official and the contractor or their representative. When the contract work has potential for timber theft or defrauding of the government, the appropriate LEO will receive a documented invitation to attend the meeting. The LEO is encouraged to visit the work area independently or with regular contract inspection personnel.

If timber trespass is not associated with a Forest Service timber sale or permit; LEI will conduct an investigation to determine if criminal or administrative procedures or a combination of both shall be taken. LEI will brief the responsible Line Officer, Timber Staff Officer and Contracting Officer on findings and recommended actions. LEI will take the lead if criminal action is pursued. The Line

Officer will take the lead on administrative procedures.

ACCOUNTABILITY (Program Review and Audits; Reference R9 TTPP, 05/2018, Pages 9-11)

Responsibility (Reference FSH 2409.15 chapter 28 & FSM 2452.41)

It is the responsibility of the Forest Supervisor and the Timber Sale Contracting Officer to ensure that the timber accountability audit action plans are completed and implemented. See FSH 2409.15, Chapter 28 for complete information.

The Forest will conduct log accountability audits on each zone at least every two years. Team makeup will include at a minimum a member from Timber Management, Law Enforcement and the Forest

Resource Specialist.

The timber sale administration teams from all Districts will meet annually with the Forest Contracting

Officer and key Line positions to review issues, concerns and new policies and procedures. The primary intent will be to assure uniform and appropriate contract administration procedures are being done across the Forest that result in harvest operations in compliance with the contract.

APPENDICES

A.

B.

C.

Timber Trespass Guidelines & Procedures for the ONF

Timber Trespass Guidelines Matrix for the ONF

Guidelines for Determining Timber Value in Timber Trespass Cases for the

ONF

Appendix A

TIMBER TRESPASS GUIDELINES & PROCEDURES

FOR THE OTTAWA NATIONAL FOREST

The following “GUIDELINES” have been developed to attain consistent application of laws and regulations and subsequent criminal justice actions for unauthorized or illegal cutting of trees on

National Forest Systems lands in the North Central Zone (MI).

There are two objectives for coordination between TM staff and LEI personnel. First, to ensure cooperation before and during investigations of unauthorized cutting and excessive damage; and second, to ensure appropriate actions are taken regarding contractual obligations, while preserving options for criminal and civil remedies, where appropriate. All incidents involving the cutting of trees or timber outside the scope of the provisions of the appropriate contract or permit will be dealt with using the standard of strict liability: appropriate law enforcement action will be taken in every case, even when contractual remedies are in place.

All Forest Service employees have…