[Federal Register Volume 72, Number 62 (Monday, April 2, 2007)]
[Proposed Rules]
[Pages 15641-15643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-5872]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 261

RIN 0596-AC30


Clarifying Prohibitions for Failure To Maintain Control of Fires 
That Damage National Forest System Lands

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comment.

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SUMMARY: The Forest Service is proposing to revise 36 CFR part 261, 
Prohibitions, to establish a new prohibition for starting and 
negligently failing to maintain control of a prescribed fire. Proof of 
criminal negligence is required of this offense. The Forest Service 
also is proposing to clarify that the prohibition for causing and 
failing to maintain control of all other fires is a strict liability 
offense, not requiring proof of criminal intent. In implementing the 
National Fire Plan, the Forest Service has encouraged adjacent 
landowners to develop integrated fire management plans for the use of 
prescribed fire for the restoration and protection of private lands 
adjacent to National Forest System lands. Without the proposed changes, 
adjacent landowners might be discouraged from using prescribed fire.

DATES: Comments must be received in writing by June 1, 2007.

ADDRESSES: Written comments concerning this notice should be addressed 
to USDA Forest Service, State and Private Forestry, Stop 1109, 1400 
Independence Avenue, SW., Washington, DC 20250-1109. Comments may also 
be sent via e-mail to [email protected] or via facsimile to 202-205-1174. 
All comments, including names and addresses when provided, are placed 
in the record and are available for public inspection and copying. The 
public may inspect comments received at USDA Forest Service, State and 
Private Forestry, 1400 Independence Avenue, SW., Washington, DC 20250-
1109. Visitors are encouraged to call ahead to 202-205-1331 to 
facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT: Denny Truesdale, State and Private 
Forestry, 202-205-1588. Individuals who use telecommunication devices 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard 
Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: The following outline contains the contents 
of the SUPPLEMENTARY INFORMATION section of this proposed rule:

Background
Regulatory Certifications
    Regulatory Impact
    Environmental Impact
    Federalism
    Consultation With Tribal governments
    No takings Implications
    Controlling Paperwork Burdens on the Public
    Energy Effects
    Civil Justice Reform
    Unfunded Mandates
List of Subjects in Part 261

Background

    A new paragraph (c) would be added to section 261.1, Scope, to 
clarify that unless criminal intent (``mens rea'') is expressly 
required in the provision setting forth the offense, strict liability 
would apply. Whether criminal intent is a required element of an 
offense is a question of statutory construction. Where a statute or 
regulation does not expressly require criminal intent, ``silence on 
this point by itself does not necessarily suggest that Congress 
intended to dispense with the conventional mens rea element * * *'' 
Staples v. United States, 511 U.S. 600, 605 (1994). As a general rule, 
absent a clear indication of legislative intent, courts require proof 
of intent for criminal offenses. See Id. at 605, for a discussion of 
cases that support this well-established principle.
    However, the general presumption that some guilty intent or purpose 
is required does not apply to ``public welfare offenses.'' These are 
offenses that typically impose penalties to serve as an effective means 
of regulation. Id. At 606 (``[i]n construing such statutes, we have 
inferred from silence that Congress did not intend to require proof of 
mens rea to establish an offense''). Public welfare offenses are those 
that ``are not of the nature of positive aggressions or invasions, with 
which the common law so often dealt, but are in the nature of neglect 
where the law requires care, or inaction where it imposes duty.'' 
Morissette v. United States, 342 U.S. 246, 255 (1952). Public

[[Page 15642]]

welfare offenses ``render[s] criminal a type of conduct that a 
reasonable person should know is subject to stringent public regulation 
and may seriously threaten the community's health and safety.'' 
Liparota v. United States, 471 U.S. 419, 426 (1985). A person should 
know that the use of Federal lands is subject to stringent regulation, 
and that action or inaction in violation of such regulation can cause 
irreparable harm to the public or the land and its resources.
    The proposed clarification to section 261.1 would make express the 
agency's long-standing interpretation of its criminal prohibitions as 
public welfare offenses and confirm that, as such, they generally are 
strict liability offenses. Proof of criminal intent would be required 
only where expressly provided by the specific prohibition.
    To this end, section 261.5(e) would be revised to remove the term 
``allowing.'' Section 261.5(e) currently prohibits ``allowing a fire to 
escape from control.'' The term ``allowing'' has been interpreted 
differently by courts in some cases to require proof of criminal 
intent. United States v. Semenza, 835 F.2d 223 (9th Cir. 1987); United 
States v. Osgudthorpe, 13 F. Supp.2d 1215 (D. Utah, 1998). In other 
cases, courts have found that the term does not require proof of 
criminal intent. United States v. Larson, 746 F.2d 455 (8th Cir. 1984), 
citing United States v. Wilson, 438 F.2d 525 (9th Cir. 1971). The 
revision would clarify that the prohibition in section 261.5(e) is a 
strict liability offense.
    In addition to removing the term ``allowing,'' section 261.5(e) 
also would be revised to limit its application to fires that are not 
prescribed fires. As clarified, the prohibition would be a strict 
liability offense for causing and failing to maintain control of a fire 
that is not a prescribed fire that damages National Forest System (NFS) 
lands.
    Section 261.5 also would be revised to add a new prohibition to 
address prescribed fires. Paragraph (g) would be added to prohibit the 
negligent failure to maintain control of a prescribed fire that damages 
NFS lands. This prohibition would not be a strict liability offense. It 
would require proof that the offender acted with criminal negligence. 
Section 261.2 would be revised to add a definition of ``prescribed 
fire.'' The term would be defined to mean a planned and intentionally 
lit fire allowed to burn within the applicable requirements of Federal 
or State laws, regulations, or permits. Many States do not have laws 
establishing requirements for prescribed fires. Under the definition, 
if a prescribed fire is allowed under applicable law (even if the law 
does not limit how the burn is to be conducted) and the fire was 
intentionally lit and planned to some extent, section 261.5(g) would 
apply and the Federal government would need to prove that the defendant 
acted with criminal negligence.
    The distinction between failure to maintain control of a prescribed 
fire (requiring proof of criminal negligence) and another fire 
(requiring no proof of criminal intent) is necessary to support efforts 
to reduce hazardous fuels on properties adjacent to National Forest 
System lands. These efforts are intended to restore ecosystems and, by 
doing so, protect communities in the wildland urban interface. In 
implementing the National Fire Plan, the Forest Service and the 
Department of the Interior land managing agencies have increased the 
amount of prescribed burning on lands under their jurisdiction. The 
agencies also have encouraged adjacent landowners to develop integrated 
fire management plans, including the use of prescribed fire, for the 
restoration and protection of private lands. If the prohibition for 
lighting and failing to maintain a prescribed fire were a strict 
liability offense, adjacent landowners might be discouraged from using 
prescribed fire as a tool on their lands out of concern that, if the 
fire were to escape control, they could be cited for a criminal 
violation without regard to whether they acted with criminal intent. 
New paragraph (g) would alleviate this impediment.

Regulatory Certifications

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866 on Regulatory Planning and Review. The 
Office of Management and Budget (OMB) has determined that this is a 
non-significant rule as defined by E.O 12866. This proposed rule 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 proposed 
rule will not alter the budgetary impact of entitlements, grants, user 
fees, or loan programs, or the rights and obligations of recipients of 
such programs. Therefore, it has been determined that this proposed 
rule is not an economically significant regulatory action.
    This proposed rule also has been considered in light of the 
Regulatory Flexibility Act, as amended, (5 U.S.C. 601 et seq.). In 
promulgating this proposed rule, publication of an advance notice of 
proposed rulemaking was not required by law. Further, it has been 
determined that this proposed rule will not have a significant economic 
impact on a substantial number of small business entities as defined by 
that act. Therefore, it has been determined that preparation of a 
regulatory flexibility analysis is not required for this proposed rule.

Environmental Impact

    Section 31.11a of Forest Service Handbook 1909.15 (69 FR 40591; 
July 6, 2004) excludes from documentation in an environmental 
assessment or environmental impact statement ``civil and criminal law 
enforcement and investigative activities.'' This proposed rule clearly 
falls within this category of actions and the agency has determined 
that no extraordinary circumstances exist which would require 
preparation of an environmental assessment or an environmental impact 
statement. Moreover, this proposed rule itself has no impact on the 
human environment. Therefore, it has been determined that preparation 
of an environmental assessment or an environmental impact statement is 
not required in promulgating this proposed rule.

Federalism

    The agency has considered this proposed rule under the requirements 
of Executive Order 12612 and has made a preliminary assessment that the 
proposed rule will not have substantial direct effects on the States, 
on the relationship between the Federal government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, the agency has determined that no 
further assessment on federalism implications is necessary at this 
time.

Consultation With Tribal Governments

    This proposed rule has been reviewed under E.O. 13175 of November 
6, 2000, ``Consultation, and Coordination with Indian Tribal 
Governments.'' This proposed rule does not 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. 
Nor does this proposed rule impose substantial direct compliance costs 
on Indian tribal governments or preempt tribal law. Therefore, it has 
been determined that this proposed rule does

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not have tribal implications requiring advance consultation with Indian 
Tribes.

No Takings Implications

    This proposed rule has been reviewed for its impact on private 
property rights under Executive Order 12630. It has been determined 
that this proposed rule does not pose a risk of taking private 
property; in fact, the proposed rule honors access to private property 
pursuant to statute and to outstanding or reserved rights.

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 and, therefore, imposes no paperwork burden on the 
public. Accordingly, the review provisions of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501, et seq.) and implementing regulations at 5 
CFR Part 1320 do not apply.

Energy Effects

    This proposed rule has been reviewed under E.O. 13211 of May 18, 
2001, ``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use.'' This proposed rule will not have a 
significant adverse effect on the supply, distribution, or use of 
energy. Nor has the Office of Management and Budget designated this 
rule as a significant energy action. Therefore, it has been determined 
that this proposed rule does not constitute a significant energy action 
requiring the preparation of a Statement of Energy Effects.

Civil Justice Reform

    This proposed rule revision has been reviewed under Executive Order 
12988, Civil Justice Reform. The proposed revision: (1) Preempts all 
State and local laws and regulations that are found to be in conflict 
with or that would impede its full implementation; (2) does not 
retroactively affect existing permits, contracts, or other instruments 
authorizing the occupancy and use of National Forest System lands, and 
(3) does not require administrative proceedings before parties may file 
suit in court challenging these provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Department has assessed the effects of this 
proposed rule on State, local, and tribal governments, and on the 
private sector. This proposed rule does 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.

List of Subjects in 36 CFR Part 261

    Law enforcement, National forests.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service proposes to amend Part 261of Title 36 of the Code of Federal 
Regulations as follows:

PART 261--PROHIBITIONS

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

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 4601-6(d) 472, 551, 
620(f), 1133(c), (d)(1), 1246(i).

Subpart A--General Prohibitions

    2. In Sec.  261.1, add paragraphs (c) and (d) to read as follows:


Sec.  261.1  Scope.

* * * * *
    (c) Unless an offense set out in this part specifies that intent is 
required, intent is not an element of any offense under this part.
    (d) None of these prohibitions apply to any person engaged in fire 
suppression actions.
    3. In Sec.  261.2, add a definition for ``Prescribed fire'' to read 
as follows


Sec.  261.2  Definitions.

* * * * *
    Prescribed fire means a planned and intentionally lit fire allowed 
to burn within the requirements of Federal or State laws, regulations, 
or permits.
* * * * *
    4. Amend Sec.  261.5 by revising paragraph (e) and by adding 
paragraph (g) to read as follows:


Sec.  261.5  Fire.

* * * * *
    (e) Causing and failing to maintain control of a fire that is not a 
prescribed fire that damages National Forest System.
* * * * *
    (g) Negligently failing to maintain control of a prescribed fire on 
Non-National Forest system lands that damages the National Forest 
System.

    Dated: March 8, 2007.
Abigail R. Kimball,
Chief, Forest Service.
 [FR Doc. E7-5872 Filed 3-30-07; 8:45 am]
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