[Federal Register Volume 60, Number 109 (Wednesday, June 7, 1995)]
[Proposed Rules]
[Pages 30030-30032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14038]



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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]

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