Montana Administrative Register Notice 36-22-145 No. 8   04/29/2010    
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In the matter of the repeal of ARM 36.11.111 and the amendment of ARM 36.11.450 pertaining to the export of timber harvested in the state and the maximum size of nonadvertised timber permits












To:       All Concerned Persons


            1.  The Department of Natural Resources and Conservation will hold a public hearing at 1:00 p.m. on May 26, 2010, in the DNRC Southwestern Land Office conference room, 1401 27th Avenue, Missoula, Montana, to consider the repeal and amendment of the above-stated rules.


            2.  The department will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact the agency no later than 5:00 p.m. on May 12, 2010, to advise the department of the nature of the accommodation that you need.  Please contact Shawn Thomas, Forest Management Bureau, 2705 Spurgin Road, Missoula, MT 59804-3199; telephone (406) 542-4306; fax (406) 542-4242; e-mail sthomas@mt.gov.


            3.  The department proposes to repeal the following rule:


            36.11.111  AGREEMENT NOT TO EXPORT STATE LOGS is found on page 36-1412 of the Administrative Rules of Montana.


            AUTH:  77-5-201, MCA

            IMP:  77-5-201, MCA


REASONABLE NECESSITY:  The repeal of ARM 36.11.111 is reasonably necessary because Section 491 of the Forest Resources Conservation and Shortage Relief Act of 1990 (subsequently codified as 16 USC §620c), which had required the DNRC to adopt a rule prohibiting the export of timber produced on state lands, was ruled unconstitutional.  The Ninth Circuit Court of Appeals, in Board of Natural Resources of Washington v. Brown, 992 F. 2d 937 (9th Circuit 1993) ruled that export-prohibition provisions of Section 491 of the Federal Act, violated the 10th Amendment to the United States Constitution because it unlawfully compelled the states to enact or administer a federal regulatory program.  The Ninth Circuit Court of Appeals ruled that 16 USC §§620c(d)(2) and (d)(3)(a) were unconstitutional. 


DNRC wishes to conform the administrative rules to the federal ruling by eliminating the requirement that purchasers of state timber sales and state timber permits sign a nonexport agreement, as there is nothing in Montana statute or DNRC's timber contract policy that forbids it.


            4.  The rule as proposed to be amended provides as follows, stricken matter interlined, new matter underlined:


            36.11.450  TIMBER PERMITS  (1)  The department shall review and issue timber permits within the time frame specified by 77-5-212(5) and (6), MCA.

            (2) (1) Under the authority of 77-5-212, MCA, the department may issue commercial timber permits at commercial rates, and without advertising, for sales that do not exceed 100,000 board feet of timber, or, in cases of emergency salvage, do not exceed 200,000 500,000 board feet of timber.

            (a)  The department shall not be required to obtain approval from the Bboard of Lland Ccommissioners to issue specific timber permits.

            (b)  The board shall retain administrative oversight of the timber permit program.

            (c)  Permits will not be subject to categorical exclusions except as stated in ARM 36.11.447.


            AUTH:   77-1-202, 7-1-209, 77-5-201, 77-5-204, 77-5-212, MCA

            IMP:  77-5-116, 77-5-204, 77-5-206, 77-5-207, 77-5-212, MCA


REASONABLE NECESSITY:  The amendment is reasonably necessary because the 2009 Montana Legislature passed HB78 to revise 77-5-212, MCA, increasing the allowable size limit of emergency salvage timber permits from 200,000 board feet to 500,000 board feet.  The amendments also clarify the time constraints placed by 77-5-212(5) and (6), MCA, which were the original impetus for adopting ARM 36.11.450, as it is difficult for the DNRC to meet that timeline when bringing each timber permit before the Land Board.


            5.  Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing.  Written data, views, or arguments may also be submitted to Shawn Thomas, Department of Natural Resources and Conservation, 2705 Spurgin Road, Missoula, MT 59804-3199; telephone (406) 542-4306; fax (406) 542-4242; or e-mailed to slyngholm@mt.gov, and must be received no later than 5:00 p.m. on May 28, 2010.


            6.  Shawn Thomas, Department of Natural Resources and Conservation Forestry Division, 2705 Spurgin Road, Missoula, MT 59804 has been designated to preside over and conduct the public hearing.


            7.  An electronic copy of this Notice of Public Hearing on Proposed Repeal and Amendment is available through the department's web site at http://www.dnrc.mt.gov.  The department strives to make the electronic copy of this Notice of Public Hearing on Proposed Repeal and Amendment conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.


            8.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding conservation districts and resource development, forestry, oil and gas conservation, trust land management, water resources, or a combination thereof.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be sent or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.


            9.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled.  The bill sponsor was contacted by e-mail on April 9, 2010.





/s/  Mary Sexton                                                         /s/  Mark Phares

MARY SEXTON                                                        MARK PHARES

Director                                                                      Rule Reviewer

Natural Resources and Conservation



Certified to the Secretary of State on April 19, 2010.



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