AND SHORTAGE RELIEF ACT

member of the public the right to be a party to the hearing. (Where hearings are held to determine whether a person should receive a Federal license under the Perishable Agricultural Commodities Act, competitors or interested persons are not permitted to intervene.) Boise Cascade's "rights" in this case. stem solely from the Department's Rules of Practice, and it "is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it." American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539 (1970), quoting from NLRB v. Monsanto Chemical Co., 205 F.2d 763, 764 (8th Cir. 1953). See also 2 AM. JUR. 2D Administrative Law § 350 (1962).

Regardless of the agency's best efforts to handle these cases more efficiently, a similar pressing time problem will undoubtedly occur again. Unless the agency has the power to speed up the process on an ad hoc basis, as the Chief ALJ did here, the alternatives are to enlarge the time limit (by means of a statutory amendment) or to diminish the "rights" afforded by the Rules of Practice.

For the foregoing reasons, the following Order should be issued.

Order

The application of Crown Pacific Inland Lumber Limited Partnership (Crown Inland) for a sourcing area as described in Finding 15(a) is approved and the sourcing area is established pursuant to the Act and the rules. The sourcing area shall have the boundaries shown in the application submitted by Crown Inland and described in Finding 15(a).

AND SHORTAGE RELIEF ACT

In re: LONGVIEW FIBRE COMPANY.

FSSAA Docket No. 94-4.

Decision and Order filed September 9, 1994.

Sourcing area application - Denial of proposed sourcing area - Failure to meet geographic and economic separateness criteria - Analysis of application by Regional Forester substantially deficient.

Judge Palmer denied the sourcing area proposed by the applicant on the grounds that the Regional Forester's analysis which accompanied the recommendation for approval was substantially deficient and the evidence adduced at the hearing indicated that the proposed sourcing area was not geographically and economically separate from areas where the applicant exported timber. When conducting a review and analysis of the application, the Regional Forester failed to include the purchasing patterns of other mills in the vicinity, or another mill owned by the applicant, and was unaware that applicant's mill was operated by an independent entity under a different name. In addition, the evidence presented at the hearing indicated that a portion of the lands from which applicant exported timber on the east side of the Cascades was not geographically and economically separate from the proposed sourcing area, also on the east side of the Cascades.

Jim Kauble, Portland, OR, for Forest Service

Alan Saltman and Ruth Tiger, Washington, D.C., for Applicant

Decision and Order issued by Victor W. Palmer, Chief Administrative Law Judge.

Preliminary Statement

This is a proceeding initiated by an application filed pursuant to the Forest Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. § 620 et. seq. The Act restricts the export of unprocessed timber harvested from Federal lands in the United States, and prohibits direct or indirect substitution of timber originating from Federal lands for exported unprocessed timber originating from private lands. Under the Act, no person may purchase unprocessed timber originating from federal lands west of the one hundredth meridian in the contiguous forty-eight states if (a) such unprocessed timber is to be substituted for exported unprocessed timber from private lands or (b) such person has, during the preceding twenty-four months, exported unprocessed timber from private lands.

The Act allows an exporter of unprocessed timber to acquire federal timber if it is acquired from an approved sourcing area. The Act permits the Secretary to approve a sourcing area application only if the Secretary finds that the requested sourcing area is geographically and economically separate

53 Agric. Dec. 1156

from any other area from which the applicant harvests for export any unprocessed timber.

On August 11, 1994, Boise Cascade Corporation, a party to this proceeding, filed a Motion to Consolidate this proceeding, in which Longview seeks a sourcing area for its Wilma, Washington facility, with a formal review of Longview's existing sourcing area for its Winton, Washington facility. The existing sourcing area was applied for in 1990 and approved in early 1991. In re Longview Fibre Company, 50 Agric. Dec. 794 (FSSAA Docket No. 91-18) (Consent Recommendation and Order). Longview Fibre's facility at Winton, Washington, is within the boundaries of the sourcing area it has proposed for its facility at Wilma, Washington. Conversely, Longview Fibre's facility at Wilma, Washington, is within the boundaries of the existing sourcing area for its Winton, Washington facility, and there is substantial overlap between the lands covered by the proposed and existing sourcing areas. On August 23, 1994, after receiving responses to Boise's motion from Longview and the Regional Forester, I denied the Motion to Consolidate on the basis that a formal review of Longview's existing sourcing area for its Winton, Washington facility had not been initiated pursuant to 36 C.F.R. § 223.191(e)(1),(3).

Pursuant to the request of the Boise Cascade Corporation, I conducted a hearing on August 30-31, 1994 in Portland, Oregon to consider whether this sourcing area application should be granted or denied. Longview was represented at the hearing by Alan Saltman, Esq., and Ruth Tiger, Esq., of Washington, D.C. The Regional Forester was represented by Jim Kauble, Esq., Office of the General Counsel, United States Department of Agriculture, Portland, Oregon, and Boise Cascade Corporation was represented by Jeffrey Neumeyer, Esq., and Colette Wolf, Esq., of Boise, Idaho.

At the close of the hearing, I notified the parties that the time for filing an appeal and the response to an appeal would be shortened to five days, in view of the time constraints imposed by the Act. As stated by the Judicial Officer, with respect to an administrative appeal, the "rights' in this case stem solely from the Department's Rules of Practice, and it is 'always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it." In re Crown Pacific Inland Lumber Limited Partnership, slip op. at 19-20 (FSSAA Docket No. 94-3, Aug. 26, 1994) (internal citation omitted).

The evidence submitted at the hearing, including witness testimony and exhibits, has been incorporated into the administrative record. References to

AND SHORTAGE RELIEF ACT

Longview's exhibits are designated "AX"; references to Boise Cascade's exhibits are designated "BCX"; and references to the hearing transcript are designated "Tr." In reaching a conclusion in this matter, the entire administrative record has been thoroughly reviewed and considered.

For the reasons hereinafter stated, the application is being denied.

Findings of Fact

1. The sourcing area application of Longview Fibre Company for its facility at Wilma, Washington was filed on June 6, 1994.

2. The geographic boundaries of the area Longview proposed as a sourcing area are described as follows: Beginning in Washington at the point at which the ridge of the Cascade Mountain Range intersects the border of the United States and Canada, then south along the ridge of the Cascade Mountain Range to its intersection with Interstate Highway 90 at Snoqualmie Pass, Washington, then southeast along Interstate Highway 90 to its intersection with Interstate Highway 82, then southeast along Interstate Highway 82 to its intersection with Washington State Highway 221, then southeast along Washington State Highway 221 to its intersection with Interstate Highway 82, then south along Interstate Highway 82 to its intersection with Interstate Highway 84, then east along Interstate Highway 84 to its intersection with U.S. Highway 395, then south along U.S. Highway 395 to its intersection with U.S. Highway 26, then southeast along U.S. Highway 26 to its intersection with Interstate Highway 84, then southeast along Interstate Highway 84 to its intersection with U.S. Highway 20, then east along U.S. Highway 20 to its intersection with Idaho State Highway 75, then north along Idaho State Highway 75 to its intersection with U.S. Highway 93, then north along U.S. Highway 93 to its intersection with the border of Idaho and Montana, then north along the border of Idaho and Montana to the border of the United States and Canada, then west along the United States and Canada border to the point of beginning.

3. Currently, Longview purchases most of its timber for its Wilma facility from private lands owned by the Potlatch Corporation and from the Nez Perce Indian Reservation, both of which are located in close proximity to Clarkston, Washington, where the Wilma facility is located. (Tr. 16-17). The timber purchased is primarily inexpensive logs that are converted into chips (Tr. 15-17), which are then taken by barge to Longview's pulp mill in Longview, Washington. (Tr. 18).