[Federal Register Volume 73, Number 102 (Tuesday, May 27, 2008)]
[Rules and Regulations]
[Pages 30305-30307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11731]


=======================================================================
-----------------------------------------------------------------------

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: Notice of final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises regulations to establish a new 
prohibition for starting and negligently failing to maintain control of 
a prescribed fire. Proof of criminal negligence is required for this 
offense. The rule also clarifies 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 these changes, 
adjacent landowners might be discouraged from using prescribed fire.

DATES: This rule is effective June 26, 2008.

ADDRESSES: The public may inspect comments received at USDA Forest 
Service, State and Private Forestry, 1400 Independence Avenue, SW., 
Washington, DC. 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 final 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) is 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 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

[[Page 30306]]

action or inaction in violation of such regulation can cause 
irreparable harm to the public or the land and its resources.
    The clarification to section 261.1 states the agency's long-
standing interpretation of its criminal prohibitions as public welfare 
offenses and confirms that, as such, they generally are strict 
liability offenses. Proof of criminal intent is required only where 
expressly provided by the specific prohibition.
    To this end, section 261.5(e) is 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 clarifies that the prohibition in section 261.5(e) is a strict 
liability offense.
    In addition to removing the term ``allowing,'' section 261.5(e) is 
also revised to limit its application to fires that are not prescribed 
fires. As clarified, the prohibition is 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 is revised to add a new prohibition to address 
prescribed fires. Paragraph (g) is added to prohibit the negligent 
failure to maintain control of a prescribed fire that damages NFS 
lands. This prohibition is not a strict liability offense. It requires 
proof that the offender acted with criminal negligence. Section 261.2 
is revised to add a definition of ``prescribed fire.'' The term is 
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) applies 
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) alleviates this impediment.

Response to Comments

    A 60-day comment period on the proposed rule was initiated on April 
2, 2007 (72 FR 15641). Several respondents replied. One respondent had 
two recommendations, another respondent is a timber industry associate, 
and the other respondents' comments were outside the scope of this 
rule.
    The first respondent had two recommendations. The first was a 
change in recovering damages from the Forest Service during fire 
suppression actions. This would require legislative changes to the 
Federal Tort Claim Act and is not part of this rule. The second 
recommendation was for changes to a State of Oregon statute and is also 
not covered by this rule.
    The second respondent had several comments. The first: ``* * * this 
proposed rule sets a higher bar for finding adjacent landowners liable 
for damage caused by `prescribed fires' * * * while defining `all other 
fires' as strict liability offenses. In short, the rule would allow the 
Forest Service to hold a neighboring landowner, or their contractors, 
liable for any escaped fire--even if their conduct in the burning 
activity was fully legal and without criminal intent.'' The respondent 
includes an example: ``All fires--broadcast, spot burning, jackpot 
burning, pile burning--should not be defined as subject to this 
proposed rule, if they were intentionally started and are compliant 
with federal laws, state and local laws, regulations, and permits.''
    All of the examples used by the respondent are included under the 
definition for a prescribed fire in this rule. The standard of 
negligence would apply, not strict liability, since an intentionally 
lit fire, whether a broadcast burn or any of the other ignition 
techniques listed that is fully in compliance with state and/or local 
laws meets the definition of a prescribed burn.
    The respondent states: ``The only cases where negligence applies 
should be those where fires started illegally.'' This is actually the 
opposite of the intent of the rule. Negligence requires a higher 
standard of proof and is used for fires started legally--for example, 
prescribed fires that are lit in compliance with applicable laws. For 
all other fires, the standard of strict liability is applied.
    There is a comment on Forest Service liability to private 
landowners which the respondent notes is outside the scope of this 
rule.
    Another comment covers the use of this rule regarding fires started 
by a purchaser of a timber sale contract on National Forests. Nothing 
in the rule supercedes the requirements, terms, or clauses in a timber 
sale contract, or any other type of contract, including a contract for 
prescribed fire on National Forest System land. The respondent cites 
timber sale contract standard clause B7.5 that sets the purchaser's 
responsibility for fires caused by negligence or fault. This rule does 
not change those responsibilities in either current or future 
contracts, nor will the rule supercede any state law in regards to the 
collection or recovery of suppression costs.
    No changes to the rule are made in response to the comments from 
the two respondents.

Regulatory Certifications

Regulatory Impact

    This 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 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 rule would not 
interfere with an action taken or planned by another agency nor raise 
new legal or policy issues. Finally, this rule will not alter the 
budgetary impact of entitlements, grants, user fees, or loan programs, 
or the rights and obligations

[[Page 30307]]

of recipients of such programs. Therefore, it has been determined that 
this rule is not an economically significant regulatory action.
    This rule also has been considered in light of the Regulatory 
Flexibility Act, as amended, (5 U.S.C. 601 et seq.). In promulgating 
this rule, publication of an advance notice of proposed rulemaking was 
not required by law. Further, it has been determined that this 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 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 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 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 rule.

Federalism

    The agency has considered this rule under the requirements of E.O. 
12612 and has made a preliminary assessment that the 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 rule has been reviewed under E.O. 13175 of November 6, 2000, 
``Consultation, and Coordination with Indian Tribal Governments.'' This 
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 rule impose 
substantial direct compliance costs on Indian tribal governments or 
preempt tribal law. Therefore, it has been determined that this rule 
does not have tribal implications requiring advance consultation with 
Indian tribes.

No Takings Implications

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

Controlling Paperwork Burdens on the Public

    This rule does not contain any record keeping 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 rule has been reviewed under E.O. 13211 of May 18, 2001, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use.'' This 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 
rule does not constitute a significant energy action requiring the 
preparation of a Statement of Energy Effects.

Civil Justice Reform

    This rule revision has been reviewed under E.O. 12988 of February 
5, 1996, Civil Justice Reform. The 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 rule 
on state, local, and tribal governments, and on the private sector. 
This 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.


0
Therefore, for the reasons set forth in the preamble, the Forest 
Service amends Part 261 of Title 36 of the Code of Federal Regulations 
as follows:

PART 261--PROHIBITIONS

0
1. The authority citation for part 261 continues to read:

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

Subpart A--General Prohibitions

0
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.

0
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.
* * * * *

0
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 the 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: May 19, 2008.
Mark Rey,
Under Secretary, NRE.
[FR Doc. E8-11731 Filed 5-23-08; 8:45 am]
BILLING CODE 3410-11-P