16 U.S.C. § 620b — Limitations on substitution of unproc-

Page 1138 TITLE 16—CONSERVATION § 620a Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 101–382, title IV, § 494, Aug. 20, 1990, 104 Stat. 725, provided that: ‘‘Except as otherwise provided in this title, the provisions of this title [enacting this sec- tion and sections 620a to 620j of this title and provisions set out as a note below] take effect on the date of the enactment of this Act [Aug. 20, 1990].’’ SHORT TITLE OF 1997 AMENDMENT Pub. L. 105–83, title VI, § 601, Nov. 14, 1997, 111 Stat. 1617, provided that: ‘‘This title [amending sections 620b to 620f of this title] may be cited as the ‘Forest Re- sources Conservation and Shortage Relief Act of 1997’.’’ SHORT TITLE OF 1993 AMENDMENT Pub. L. 103–45, § 1, July 1, 1993, 107 Stat. 223, provided that: ‘‘This Act [amending sections 620c and 620d of this title and enacting provisions set out as a note under section 620c of this title] may be cited as the ‘Forest Resources Conservation and Shortage Relief Amend- ments Act of 1993’.’’ SHORT TITLE Pub. L. 101–382, title IV, § 487, Aug. 20, 1990, 104 Stat. 714, provided that: ‘‘This title [enacting this section and sections 620a to 620j of this title and provisions set out as a note above] may be cited as the ‘Forest Re- sources Conservation and Shortage Relief Act of 1990’.’’ § 620a. Restrictions on exports of unprocessed timber originating from Federal lands (a) Prohibition on export of unprocessed timber originating from Federal lands No person who acquires unprocessed timber originating from Federal lands west of the 100th meridian in the contiguous 48 States may export such timber from the United States, or sell, trade, exchange, or otherwise convey such tim- ber to any other person for the purpose of ex- porting such timber from the United States, un- less such timber has been determined under sub- section (b) to be surplus to the needs of timber manufacturing facilities in the United States. (b) Surpluses (1) Determinations by Secretary concerned The prohibition contained in subsection (a) shall not apply to specific quantities of grades and species of unprocessed timber originating from Federal lands which the Secretary con- cerned determines to be surplus to domestic manufacturing needs. (2) Procedures Any determination under paragraph (1) shall be made in regulations issued in accordance with section 553 of title 5. Any such deter- mination shall be reviewed at least once in every 3-year period. The Secretary concerned shall publish notice of such review in the Fed- eral Register, and shall give the public an op- portunity to comment on such review. (Pub. L. 101–382, title IV, § 489, Aug. 20, 1990, 104 Stat. 715.) § 620b. Limitations on substitution of unproc- essed Federal timber for unprocessed timber exported from private lands (a) Direct substitution (1) Except as provided in paragraph (3) and subsection (c), no person may purchase directly from any department or agency of the United States unprocessed timber originating from Fed- eral lands west of the 100th meridian in the con- tiguous 48 States if— (A) such unprocessed timber is to be used in substitution for exported unprocessed timber originating from private lands; or (B) such person has, during the preceding 24- month period, exported unprocessed timber originating from private lands. (2) Notwithstanding paragraph (1)— (A) Federal timber purchased pursuant to a contract entered into between the purchaser and the Secretary concerned before the date on which regulations to carry out this sub- section are issued under section 620f of this title shall be governed by the regulations of the Secretary concerned in effect before such date that restrict the substitution of unproc- essed timber originating from Federal lands for exported timber originating from private lands; (B) in the 1-year period beginning on August 20, 1990, any person who operates under a Co- operative Sustained Yield Unit Agreement, and who has an historic export quota shall be limited to entering into contracts under such a quota to a volume equal to not more than 66 percent of the person’s historic export quota used during fiscal year 1989; (C) a person referred to in subparagraph (B) shall reduce the person’s remaining substi- tution volume by an equal amount each year thereafter such that no volume is substituted under such a quota in fiscal year 1995 or there- after; and (D) the 24-month period referred to in para- graph (1)(B) shall not apply to any person who— (i) before August 20, 1990, has, under an historic export quota approved by the Sec- retary concerned, purchased unprocessed timber originating from Federal lands west of the 100th meridian in the contiguous 48 States in substitution for exported unproc- essed timber originating from private lands; (ii) certifies to the Secretary concerned, within 3 months after August 20, 1990, that the person will, within 6 months after Au- gust 20, 1990, cease exporting unprocessed timber originating from private lands; and (iii) ceases exports in accordance with such certification. (3) APPLICABILITY.—In the case of the purchase by a person of unprocessed timber originating from Federal lands west of the 119th meridian in the State of Washington, paragraph (1) shall apply only if— (A) the private lands referred to in para- graph (1) are owned by the person; or (B) the person has the exclusive right to har- vest timber from the private lands described in paragraph (1) during a period of more than 7 years, and may exercise that right at any time of the person’s choosing. (b) Indirect substitution (1) In general Except as provided in paragraph (2), no per- son may, beginning 21 days after August 20, Page 1139 TITLE 16—CONSERVATION § 620b 1990, purchase from any other person unproc- essed timber originating from Federal lands west of the 100th meridian in the contiguous 48 States if such person would be prohibited from purchasing such timber directly from a de- partment or agency of the United States. Ac- quisitions of western red cedar which are do- mestically processed into finished products to be sold into domestic or international markets are exempt from the prohibition contained in this paragraph. (2) Exceptions (A) The Secretary of Agriculture shall, as soon as practicable but not later than 9 months after August 20, 1990, establish, by rule, a limited amount of unprocessed timber originating from Federal lands described in subparagraph (B) which may be purchased by a person otherwise covered by the prohibition contained in paragraph (1). Such limit shall equal— (i) the amount of such timber acquired by such person, based on the higher of the ap- plicant’s actual timber purchasing receipts or the appropriate Federal agency’s records, during fiscal years 1988, 1989, and 1990, di- vided by 3, or (ii) 15 million board feet, whichever is less, except that such limit shall not exceed such person’s proportionate share, with respect to all persons covered under this paragraph, of 50 million board feet. (B) The Federal lands referred to in subpara- graph (A) are Federal lands administered by the United States Forest Service Region 6 that are located north of the Columbia River from its mouth and east to its first intersection with the 119th meridian, and from that point north of the 46th parallel and east. (C) Any person may sell, trade, or otherwise exchange with any other person the rights ob- tained under subparagraph (A), except that such rights may not be sold, traded, or other- wise exchanged to persons already in posses- sion of such rights obtained under subpara- graph (A). (D) Federal timber purchased from Federal lands described in subparagraph (B) pursuant to a contract entered into between the pur- chaser and the Secretary of Agriculture before the date on which regulations to carry out this subsection are issued under section 620f of this title shall be governed by the regulations of the Secretary of Agriculture in effect before such date that restrict the substitution of un- processed timber originating from Federal lands for exported timber originating from pri- vate lands. (c) Sourcing areas (1) In general The prohibitions contained in subsections (a) and (b) shall not apply with respect to the acquisition of unprocessed timber originating from Federal lands within a sourcing area west of the 100th meridian in the contiguous 48 States approved by the Secretary concerned under this subsection by a person who— (A) in the previous 24 months, has not ex- ported unprocessed timber originating from private lands within the sourcing area; and (B) during the period in which such ap- proval is in effect, does not export unproc- essed timber originating from private lands within the sourcing area. The Secretary concerned may waive the 24- month requirement set forth in subparagraph (A) for any person who, within 3 months after August 20, 1990, certifies that, within 6 months after August 20, 1990, such person will, for a period of not less than 3 years, cease exporting unprocessed timber originating from private lands within the sourcing area. (2) Requirements for application for sourcing areas for processing facilities located out- side the northwestern private timber open market area The Secretaries concerned shall, not later than 3 months after August 20, 1990, prescribe procedures to be used by a person applying for approval of a sourcing area under paragraph (1). Such procedures shall require, at a min- imum, the applicant to provide— (A) information regarding the location of private lands (except private land located in the northwestern private timber open mar- ket area) from which such person has, within the previous year, harvested or otherwise ac- quired unprocessed timber which has been exported from the United States; and (B) information regarding the location of each timber manufacturing facility owned or operated by such person within the proposed sourcing area boundaries at which the appli- cant proposes to process timber originating from Federal lands. The prohibition contained in subsection (a) shall not apply to a person before the date which is 1 month after the procedures referred to in this paragraph are prescribed. With re- spect to any person who submits an applica- tion in accordance with such procedures by the end of the time period set forth in the pre- ceding sentence, the prohibition contained in subsection (a) shall not apply to such person before the date on which the Secretary con- cerned approves or disapproves such applica- tion. (3) Grant of approval for sourcing areas for processing facilities located outside of the northwestern private timber open market area (A) In general For each applicant, the Secretary con- cerned shall, on the record and after an op- portunity for a hearing, not later than 4 months after receipt of the application for a sourcing area, either approve or disapprove the application. The Secretary concerned may approve such application only if the Secretary determines that the area that is the subject of the application, in which the timber manufacturing facilities at which the applicant desires to process timber origi- nating from Federal lands are located, is geographically and economically separate from any geographic area from which that person harvests for export any unprocessed timber originating from private lands. Page 1140 TITLE 16—CONSERVATION § 620b (B) For timber manufacturing facilities lo- cated in Idaho Except as provided in subparagraph (D), in making a determination referred to in sub- paragraph (A), the Secretary concerned shall consider the private timber export and the private and Federal timber sourcing pat- terns for the applicant’s timber manufac- turing facilities, as well as the private and Federal timber sourcing patterns for the timber manufacturing facilities of other per- sons in the same local vicinity of the appli- cant, and the relative similarity of such pri- vate and Federal timber sourcing patterns. (C) For timber manufacturing facilities lo- cated in States other than Idaho Except as provided in subparagraph (D), in making the determination referred to in subparagraph (A), the Secretary concerned shall consider the private timber export and the Federal timber sourcing patterns for the applicant’s timber manufacturing facilities, as well as the Federal timber sourcing pat- terns for the timber manufacturing facilities of other persons in the same local vicinity of the applicant, and the relative similarity of such Federal timber sourcing patterns. Pri- vate timber sourcing patterns shall not be a factor in such determinations in States other than Idaho. (D) Area not included In deciding whether to approve or dis- approve an application, the Secretary shall not— (i) consider land located in the north- western private timber open market area; or (ii) condition approval of the application on the inclusion of any such land in the applicant’s sourcing area, such land being includable in the sourcing area only to the extent requested by the applicant. (4) Denial of application for sourcing areas for processing facilities located outside the northwestern private timber open market area (A) Subject to subparagraph (B), and not- withstanding any other provision of law, in the 9-month period after receiving disapproval of an application submitted pursuant to this subsection, the applicant may purchase un- processed timber originating from Federal lands in the area which is the subject of the application in an amount not to exceed 75 per- cent of the annual average of such person’s purchases of unprocessed timber originating from Federal lands in the same area during the 5 full fiscal years immediately prior to submission of the application. In the subse- quent 6-month period, such person may pur- chase not more than 25 percent of such annual average, after which time the prohibitions contained in subsection (a) shall fully apply. (B) If a person referred to in subparagraph (A) certifies to the Secretary concerned, with- in 90 days after receiving disapproval of such application, that such person shall, within 15 months after such disapproval, cease the ex- port of unprocessed timber originating from private lands from the geographic area deter- mined by the Secretary for which the applica- tion would have been approved, such person may continue to purchase unprocessed timber originating from Federal lands in the area which is the subject of the application, with- out being subject to the restrictions of sub- paragraph (A), except that such purchases dur- ing that 15-month period may not exceed 125 percent of the annual average of such person’s purchases of unprocessed timber originating from Federal lands in the same area during the 5 full fiscal years immediately prior to submission of the application which was de- nied. (C) Any person to whom subparagraph (B) applies may not, during the 15-month period after the person’s application for sourcing area boundaries is denied, export unprocessed timber originating from private lands in the geographic area determined by the Secretary concerned for which the application would have been approved in amounts that exceed 125 percent of the annual average of such person’s exports of unprocessed timber from such pri- vate lands during the 5 full fiscal years imme- diately prior to submission of the application. (5) Review of determinations for sourcing areas for processing facilities located out- side the northwestern private timber open market area Determinations made under paragraph (3) shall be reviewed, in accordance with the pro- cedures prescribed in sections 620 to 620j of this title, not less often than every 5 years. (6) Sourcing areas for processing facilities lo- cated in the northwestern private timber open market area (A) Establishment In the northwestern private timber open market area— (i) a sourcing area boundary shall be a circle around the processing facility of the sourcing area applicant or holder; (ii) the radius of the circle— (I) shall be the furthest distance that the sourcing area applicant or holder proposes to haul Federal timber for proc- essing at the processing facility; and (II) shall be determined solely by the sourcing area applicant or holder; (iii) a sourcing area shall become effec- tive on written notice to the Regional For- ester for Region 6 of the Forest Service of the location of the boundary of the sourcing area; (iv) the 24-month requirement in para- graph (1)(A) shall not apply; (v) a sourcing area holder— (I) may adjust the radius of the sourcing area not more frequently than once every 24 months; and (II) shall provide written notice to the Regional Forester for Region 6 of the ad- justed boundary of its sourcing area be- fore using the adjusted sourcing area; and (vi) a sourcing area holder that relin- quishes a sourcing area may not reestab- Page 1141 TITLE 16—CONSERVATION § 620c lish a sourcing area for that processing fa- cility before the date that is 24 months after the date on which the sourcing area was relinquished. (B) Transition With respect to a portion of a sourcing area established before November 14, 1997, that contains Federal timber under contract before November 14, 1997, and is outside the boundary of a new sourcing area established under subparagraph (A)— (i) that portion shall continue to be a sourcing area only until unprocessed Fed- eral timber from the portion is no longer in the possession of the sourcing area hold- er; and (ii) unprocessed timber from private land in that portion shall be exportable imme- diately after unprocessed timber from Fed- eral land in the portion is no longer in the possession of the sourcing area holder. (7) Relinquishment and termination of sourcing areas (A) In general A sourcing area may be relinquished at any time. (B) Effective date A relinquishment of a sourcing area shall be effective as of the date on which written notice is provided by the sourcing area hold- er to the Regional Forester with jurisdiction over the sourcing area where the processing facility of the holder is located. (C) Exportability (i) In general On relinquishment or termination of a sourcing area, unprocessed timber from private land within the former boundary of the relinquished or terminated sourcing area is exportable immediately after un- processed timber from Federal land from within that area is no longer in the posses- sion of the former sourcing area holder. (ii) No restriction The exportability of unprocessed timber from private land located outside of a sourcing area shall not be restricted or in any way affected by relinquishment or ter- mination of a sourcing area. (d) Domestic transportation and processing of private timber Nothing in this section restricts or authorizes any restriction on the domestic transportation or processing of timber harvested from private land, except that the Secretary may prohibit processing facilities located in the State of Idaho that have sourcing areas from processing timber harvested from private land outside of the boundaries of those sourcing areas. (Pub. L. 101–382, title IV, § 490, Aug. 20, 1990, 104 Stat. 715; Pub. L. 105–83, title VI, § 602(a), Nov. 14, 1997, 111 Stat. 1618.) Editorial Notes REFERENCES IN TEXT August 20, 1990, referred to in subsec. (a)(2)(B), was in the original ‘‘the effective date of this title’’, which is the date of enactment of title IV of Pub. L. 101–382, ap- proved Aug. 20, 1990, except as otherwise provided in sections 620 to 620j of this title, see section 494 of Pub. L. 101–382, set out as an Effective Date note under sec- tion 620 of this title. AMENDMENTS 1997—Subsec. (a)(1). Pub. L. 105–83, § 602(a)(1)(A), in- serted ‘‘paragraph (3) and’’ after ‘‘Except as provided in’’. Subsec. (a)(3). Pub. L. 105–83, § 602(a)(1)(B), added par. (3). Subsec. (c). Pub. L. 105–83, § 602(a)(2)(A), struck out ‘‘Approval of’’ before ‘‘Sourcing areas’’ in heading. Subsec. (c)(2). Pub. L. 105–83, § 602(a)(2)(B)(i), inserted ‘‘for sourcing areas for processing facilities located outside the northwestern private timber open market area’’ after ‘‘application’’ in heading. Subsec. (c)(2)(A). Pub. L. 105–83, § 602(a)(2)(B)(ii), in- serted ‘‘(except private land located in the north- western private timber open market area)’’ after ‘‘pri- vate lands’’. Subsec. (c)(3). Pub. L. 105–83, § 602(a)(2)(C), inserted ‘‘for sourcing areas for processing facilities located outside of the northwestern private timber open mar- ket area’’ in heading, designated existing provisions as subpar. (A), inserted heading, and struck out at end ‘‘In making a determination referred to in this paragraph, the Secretary concerned shall consider equally the tim- ber purchasing patterns, on private and Federal lands, of the applicant as well as other persons in the same local vicinity as the applicant, and the relative simi- larity of such purchasing patterns.’’, and added sub- pars. (B) to (D). Subsec. (c)(4), (5). Pub. L. 105–83, § 602(a)(2)(D), (E), in- serted ‘‘for sourcing areas for processing facilities lo- cated outside the northwestern private timber open market area’’ in headings. Subsec. (c)(6), (7). Pub. L. 105–83, § 602(a)(2)(F), added pars. (6) and (7). Subsec. (d). Pub. L. 105–83, § 602(a)(3), added subsec. (d). § 620c. Restriction on exports of unprocessed timber from State and other public lands (a) Order to prohibit export of unprocessed tim- ber originating from State or other public lands Except as provided in subsection (g), the Sec- retary of Commerce shall issue orders to pro- hibit the export from the United States of un- processed timber originating from public lands, as provided in subsection (b). (b) Schedule for determination to prohibit ex- port of unprocessed timber originating from State or other public lands (1) States with annual sales of 400,000,000 board feet or less With respect to States with annual sales vol- umes of 400,000,000 board feet or less, the Sec- retary of Commerce shall issue an order re- ferred to in subsection (a) to prohibit, not- withstanding any other provision of law, the export of unprocessed timber originating from public lands, effective June 1, 1993. (2) States with annual sales of greater than 400,000,000 board feet With respect to any State with an annual sales volume greater than 400,000,000 board feet, the Secretary of Commerce shall issue an order referred to in subsection (a) to prohibit, notwithstanding any other provision of law, the export of unprocessed timber originating