Federal Register / Vol. 72, No. 62 / Monday, April 2, 2007 / Proposed Rules 15641 

§ 3.10 Registration of futures commission 

merchants, introducing brokers, commodity 

trading advisors, commodity pool operators 

and leverage transaction merchants. 

* * * * * 

(c) Exemption from registration for 

certain persons. (1) A person trading 

solely for proprietary accounts, as 

defined in § 1.3(y) of this chapter, is not 

required to register as a futures 

commission merchant: Provided, that 

such a person remains subject to all 

other provisions of the Act and of the 

rules, regulations and orders 

thereunder. 

(2)(i) A foreign broker, as defined in 

§ 1.3(xx) of this chapter, is not required 

to register as a futures commission 

merchant if it submits any commodity 

interest transactions executed on or 

subject to the rules of designated 

contract market or derivatives 

transaction execution facility for 

clearing on an omnibus basis through a 

futures commission merchant registered 

in accordance with section 4d of the 

Act. 

(ii) A foreign broker acting in 

accordance with paragraph (c)(2)(i) of 

this section remains subject to all other 

provisions of the Act and of the rules, 

regulations and orders thereunder. 

PART 4—COMMODITY POOL 

OPERATORS AND COMMODITY 

TRADING ADVISORS 

7. The authority citation for part 4 

continues to read as follows: 

Authority: 7 U.S.C. 1a, 2, 4, 6(c), 6b, 6c, 6l, 

6m, 6n, 6o, 12a and 23. 

§ 4.10 [Amended] 

8. Section 4.10 is amended by 

removing and reserving paragraph (a). 

PART 15—REPORTS—GENERAL 

PROVISIONS 

9. The authority citation for part 15 

continues to read as follows: 

Authority: 7 U.S.C. 2, 5, 6(c), 6a, 6c(a)–(d), 

6f, 6g, 6i, 6k, 6m, 6n, 7, 9, 12a, 19 and 21, 

as amended by the Commodity Futures 

Modernization Act of 2000, Appendix E of 

Pub. L. 106–554, 114 Stat. 2763 (2000). 

§ 15.00 [Amended] 

10. Section 15.00 is amended by 

removing and reserving paragraph (g). 

PART 166—CUSTOMER PROTECTION 

RULES 

11. The authority citation for part 166 

continues to read as follows: 

Authority: 7 U.S.C. 1a, 2, 6b, 6c, 6d, 6g, 6h, 

6k, 6l, 6o, 7, 12a, 21, and 23, as amended by 

the Commodity Futures Modernization Act of 

2000, Appendix E of Pub. L. 106–554, 114 

Stat. 2763 (2000). 

§ 166.1 [Amended] 

12. Section 166.1 is amended by 

removing and reserving paragraph (b). 

Dated: March 23, 2007. 

By the Commission. 

Eileen A. Donovan, 

Acting Secretary of the Commission. 

[FR Doc. 07–1522 Filed 3–30–07; 8:45 am] 

BILLING CODE 6351–01–M 

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. 

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 spf@fs.fed.us 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 


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15642 Federal Register / Vol. 72, No. 62 / Monday, April 2, 2007 / Proposed Rules 

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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Federal Register / Vol. 72, No. 62 / Monday, April 2, 2007 / Proposed Rules 15643 

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 § 261.1, add paragraphs (c) and 

(d) to read as follows: 

§ 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 § 261.2, add a definition for 

‘‘Prescribed fire’’ to read as follows 

§ 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 § 261.5 by revising 

paragraph (e) and by adding paragraph 

(g) to read as follows: 

§ 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 NonNational 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] 

BILLING CODE 3410–11–P 


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