Administration of State Log Exports Ban

DEPARTMENT OF COMMERCE

Bureau of Export Administration

15 CFR Part 792

[Docket No. 950525141-5141-01]

Administration of State Log Exports Ban

AGENCY: Bureau of Export Administration, Commerce.

ACTION: Advance notice of proposed rulemaking with request for

comments.

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SUMMARY: This notice announces the Department of Commerce's intention

to issue regulations implementing the ban on the export of unprocessed

timber originating from non-Federal public lands in 17 western states

pursuant to the Forest Resources Conservation and Shortage Relief Act

of 1990, as amended (FRCSRA). This notice delineates the actions the

Department is considering taking to implement the FRCSRA and requests

public comments on these actions.

DATES: Comments must be received by July 7, 1995.

ADDRESSES: Written comments (three copies) should be sent to: Steven C.

Goldman, Acting Director, Office of Chemical and Biological Controls

and Treaty Compliance, Bureau of Export Administration, U.S. Department

of Commerce, Washington, D.C. 20230, Telephone: (202) 482-3825, Fax

(202) 482-0751.

FOR FURTHER INFORMATION CONTACT: Bernard Kritzer, Manager, Short Supply

Program, Office of Chemical and Biological Controls and Treaty

Compliance, Bureau of Export Administration, U.S. Department of

Commerce, Washington, D.C. 20230, Telephone: (202) 482-0894, Fax (202)

482-0751.

SUPPLEMENTARY INFORMATION:

Background

Section 491 of the Forest Resources Conservation and Shortage

Relief Act of 1990, (Pub. L. 101-382, 16 U.S.C. 620 et seq.) (the Act),

requires the Secretary of Commerce to issue orders restricting the

export of unprocessed timber originating from non-Federal public lands

located west of the 100th meridian in the contiguous United States

(state timber). Prior to its amendment in 1993, the Act required the

affected States to issue and implement regulations administering the

export ban. On May 4, 1993, the U.S. Ninth Circuit Court of Appeals

held unconstitutional the provisions of the Act that required the

States to implement the Act's prohibitions.

On July 1, 1993, the President signed into law Public Law 103-45,

the Forest Resources Conservation and Shortage Relief Amendments Act of

1993 (the Amendments Act). The Amendments Act reassigned the export

control implementation responsibilities from the States to the Federal

government (Federal Program), specifically to the Secretary of

Commerce. It also allows individual states to petition the Secretary to

approve their own programs to implement the ban on exports of state

timber (State Program). If the Secretary approves a State Program, it

applies in that State in lieu of the Federal Program.

Scope of the Export Ban

Pursuant to the FRCSRA, on August 23, 1993, the Secretary of

Commerce signed a General Order (Order) prohibiting the export of State

timber effective June 1, 1993 (58 F.R. 55038). This Order affects

Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, New

Mexico, Nevada, North Dakota, Oklahoma, Oregon, South Dakota, Texas,

Utah, Washington, and Wyoming (the affected States). The export ban,

however, excludes public lands in the State of Alaska and lands held in

trust by any Federal or State official or agency for a recognized

Indian tribe or for any member of such tribe.

The Order includes restrictions on who may purchase state timber to

prevent the direct or indirect substitution of such timber for exported

private timber. It also provides exemptions for certain prior

contracts. For States with annual sales greater than 400 million board

feet (MBF), the Order expires December 31, 1995. For States with annual

sales of less than 400 MBF, the Order remains in effect permanently.

For States with annual sales of more than 400 MBF, section 491

(b)(2)(B) of the FRCSRA requires the Secretary to issue an Order, not

later than September 30, 1995, for all periods on or after January 1,

1996, prohibiting the export of the lesser of 400 MBF or the annual

sales volume in that State of unprocessed timber originating from

public lands.

The FRCSRA allows the governor of each affected State to request

that the Secretary of Commerce approve a State Program for the

administration of its own state timber export controls in lieu of the

Federal Program. On August 17, 1993, the Secretary authorized

Washington to continue administering its pre-existing export control

program on an interim basis. On March 10, 1994, the Secretary

authorized Oregon to continue administering its pre-existing export

control program on an interim basis. On June 1, 1995, the Secretary

gave final authorization to Oregon and Washington to administer their

pre-existing programs pursuant to Section 491(d) of the FRCSRA.

[[Page 30031]]

Proposed Elements of the Federal Program

This notice announces the Department of Commerce's intention to

issue regulations implementing the ban on the export of state timber

originating in the 15 States identified in the Order which have not had

programs approved or had FRCSRA's prohibitions modified or removed

pursuant to Section 491(h). Before drafting regulations, however, the

Department seeks comments from interested parties on the following

proposed elements of the Federal Program:

1. Procedures to identify and mark State timber. Pursuant to

section 491(c)(1) of the FRCSRA, the Department proposes to require

owners/purchasers of State timber:

(a) To identify and paint, by means described at subparagraphs (b)

and (c) of this paragraph, State timber (sometimes hereafter ``logs

requiring domestic processing'');

(b) To use highway yellow paint to identify logs requiring domestic

processing. Before removal from the harvest area, the owner must paint

each log at each end with a spot of highway yellow paint not less than

three inches square;

(c) To retain the identification placed on an unprocessed log until

the log is domestically processed. If a log is cut into two or more

segments before processing, the owner is required to identify each

segment in the same manner as the original log. The marking requirement

would include all State timber;

2. Procedures for documenting transfers of State timber. Pursuant

to Sections 492(a)(3) and 492(a)(4) of the FRCSRA, the Department

proposes to require the following reporting procedures for the receipt

and disposition of the unprocessed public timber:

(a) Documenting the transfer of unprocessed State timber. Each

person who transfers to another person State timber must, before

completing the transfer:

(i) Provide to the other person a written document identifying the

public lands from which the timber originated and giving notice to the

person of the prohibition against exporting the State timber or

substituting it for exported private timber;

(ii) receive from the purchaser written acknowledgement of the

notice, and a written agreement that the recipient of the timber will

comply with all the requirements of the FRCSRA; and

(iii) provide annually to the Secretary of Commerce copies of all

notices, acknowledgements, and agreements referred to in paragraphs

(3)(a)(i) and (3)(a)(ii).

(b) Documenting the acquisition of unprocessed State timber. Each

person who directly or indirectly acquires or processes State timber

shall report the receipt and disposition of the timber to the Secretary

of Commerce as follows:

(i) the source of the State timber acquired.

(ii) from whom the timber was acquired and to whom the timber was

sold, transferred or otherwise conveyed; and

(iii) an accounting by source, in net board feet Scribner, or cubic

feet, of the volume of State timber acquired, the volume domestically

processed by the purchaser and the volume sold for domestic processing.

This requirement would apply to all intermediate parties until a

purchaser sends the logs to a domestic sawmill and they are processed;

3. Procedures for assessing civil penalties and applying

administrative remedies for violations of the FRCSRA. Pursuant to

Section 492(c)(1)(B), if the Secretary of Commerce finds, on the record

and after an opportunity for a hearing, that a person has exported or

caused to be exported State timber with willful disregard of the

Secretary's Orders, the Secretary may assess a civil penalty on such

person. The civil penalty may be up to $500,000 for each violation or 3

times the gross value of unprocessed timber involved in the violation,

whichever amount is greater.

Pursuant to Section 492(c)(2)(B), if the Secretary of Commerce

finds on the record and after an opportunity for a hearing, that a

person has violated any provision of the FRCSRA or any regulation

issued under the FRCSRA relating to the export of unprocessed timber

originating from public lands, whether or not the violation caused the

export of unprocessed timber from public lands in violation of the

FRCSRA, the Secretary may impose a civil penalty of up to $75,000 for

each violation or up to $500,000 depending on the nature of the

violation.

4. Definition. Pursuant to Section 493(7) of the FRCSRA, the term

unprocessed timber means trees or portions of trees or other roundwood

not processed to standards and specifications suitable for end product

use. It does not include among other things chips, pulp, or pulp

products and pulp logs or cull logs.

Petitions for Minimizing the Reporting Burdens on Those States That Do

Not Export Timber From Public Lands

The Department is aware that a number of the states subject to the

export ban have very small state timber sales volumes or do not sell

state timber at all. The Department also is aware that some states do

not have any unprocessed timber exported from state public lands. The

Department is prepared to consider requests from such states for

removal or modification of state restrictions, including reporting

requirements of the Federal Program, pursuant to section 491(h) of the

FRCSRA.

Particularly Useful Comments

The Department invites written comments from interested parties

that may assist it in implementing the Federal Program. Specifically,

information concerning the following would be particularly useful:

1. Under what circumstance should the Secretary include

substitution as part of the rules for the Federal Program?

2. Are the Department's procedures for identifying and marking

export-restricted State timber adequate to track such timber and

prevent unauthorized export? Should the Department require persons/

purchasers of State timber to hammer brand a log on each end with a

brand approved for use by the Forest Supervisor of the State Forest in

each affected State?

3. Are there more cost-effective ways to identify and track export-

restricted State timber?

4. Is the Department's annual reporting requirement sufficient to

track the flow of State timber?

Comment Procedures

The Department will consider public comments in the development of

proposed regulations. The Department encourages interested persons who

wish to comment to do so at the earliest possible time to permit the

fullest consideration of their views.

The following procedures will apply to any comments submitted

pursuant to this procedure:

1. Interested parties are invited to submit written comments (3

copies), opinions, data, information, or advice with respect to this

notice to the address above by the dates specified above.

2. The Department will consider all comments received by the close

of the comment period in developing proposed regulations. While

comments received after the end of the comment period will be

considered if possible, this cannot be assured. [[Page 30032]]

3. All public comments on this advanced notice of proposed

rulemaking will be a matter of public record and will be available for

public inspection and copying. (Communications from agencies of the

United States Government or foreign governments will not be made

available for public inspection).

4. In the interest of accuracy and completeness, the Department

requires comments in written form. Oral comments must be followed by

written memoranda which will also be a matter of public record and will

be available for public review and copying.

5. The Department will not accept public comments accompanied by a

request that part or all of the material be treated confidentially

because of its business proprietary nature or for any other reason. The

Department will return such comments and materials to the person

submitting the comments and will not consider them in the development

of final regulations, and;

6. The comments received in response to this notice will be

maintained in the Bureau of Export Administration, Freedom of

Information Records Inspection Facility, Room 4525, Department of

Commerce, 14th Street and Pennsylvania Avenue, N.W., Washington, DC

20239. Interested parties may inspect and copy records in this

facility, including written public comments and memoranda summarizing

the substance of oral communications, in accordance with regulations

published in Part 4 of Title 15 of the Code of Federal Regulations.

Information about the inspection and copying of records may be obtained

from Margaret Cornejo, Bureau of Export Administration, Management

Analyst, at the above address or by calling (202) 482-5653.

Rulemaking Requirements

The rule which is likely to be proposed based on this notice was

determined to be significant under Executive Order 12866.

Dated: June 2, 1995.

Sue E. Eckert,

Assistant Secretary for Export Administration.

[FR Doc. 95-14038 Filed 6-6-95; 8:45 am]

BILLING CODE 3510-DT-P