[Federal Register Volume 75, Number 165 (Thursday, August 26, 2010)]
[Rules and Regulations]
[Pages 52453-52455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21244]



[[Page 52453]]

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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Parts 12 and 163

[CBP Dec. 10-27; USCBP 2008-0052]
RIN 1515-AD62 (Formerly RIN 1505-AB98)


Entry Requirements for Certain Softwood Lumber Products Exported 
From Any Country Into the United States

AGENCIES: U.S. Customs and Border Protection, Department of Homeland 
Security; Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule the interim amendments to 
title 19 of the Code of Federal Regulations (19 CFR) that prescribe 
special entry and documentation requirements applicable to certain 
softwood lumber and softwood lumber products exported from any country 
into the United States. This final rule implements Title VIII 
(``Softwood Lumber Act of 2008'') of the Tariff Act of 1930, as added 
by section 3301 of Title III, Subtitle D, of the Food, Conservation, 
and Energy Act of 2008, which requires the President to establish and 
maintain an importer declaration program with respect to the 
importation of certain softwood lumber and softwood lumber products and 
prescribes special entry requirements whereby importers must submit the 
export price, estimated export charge, if any, and an importer 
declaration with the entry summary. The Act also established new 
recordkeeping requirements applicable to certain imports of softwood 
lumber home packages and kits that are subject to declaration 
requirements, but that are not subject to the softwood lumber importer 
declaration program of section 803 of the Act.

DATES: Effective Date: August 26, 2010.

FOR FURTHER INFORMATION CONTACT: Renee D. Chovanec, Chief, 
International Coordination, Trade Agreements and Planning Division, 
Office of International Trade, Tel: (202) 863-6384.

SUPPLEMENTARY INFORMATION:

Background

    On August 25, 2008, CBP published in the Federal Register (73 FR 
49934), as Customs and Border Protection Decision (CBP Dec.) 08-32, 
interim regulations prescribing special entry and documentation 
requirements applicable to certain softwood lumber and softwood lumber 
products exported from any country into the United States. These 
interim regulations, set forth in new Sec.  12.142 of title 19 of the 
Code of Federal Regulations (19 CFR 12.142), implemented the terms of 
Title VIII (Softwood Lumber Act of 2008 or ``the Act'') of the Tariff 
Act of 1930, as added by section 3301 of Title III, Subtitle D, of the 
Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246, enacted 
June 18, 2008). The Act required the President to establish and 
maintain an importer declaration program with respect to the 
importation of certain softwood lumber and softwood lumber products and 
prescribe special entry requirements whereby importers must provide the 
export price, estimated export charge, if any, and an importer 
declaration with the entry summary documentation. The Act also imposed 
new recordkeeping requirements applicable to certain imports of 
softwood lumber home packages and kits.
    CBP solicited public comment on the interim rule.

Discussion of Comments

    Five commenters responded to the solicitation of comments in CBP 
Dec. 08-32, and CBP considered all comments that were timely submitted. 
Several of the commenters raised numerous issues in each of their 
submissions and these issues are addressed individually in this 
document. A description of the comments received, together with CBP's 
analyses, is set forth below.

Comment

    One commenter notes that while it considers the additional 
reporting requirements imposed on softwood lumber imports by the Act 
unnecessary, CBP has nevertheless chosen the best method for collecting 
the required data. The commenter further suggests that the additional 
reporting requirements will impose further collection and reporting 
burdens on importers that will translate into additional costs that 
importers that will pass down to consumers.

CBP Response

    Pursuant to the terms of the Act, CBP is required to collect the 
information described in CBP Dec. 08-32. While CBP is cognizant of the 
additional reporting burden the new softwood lumber entry requirements 
place on the importer, the agency has devised a method of data 
collection that minimizes the associated costs and burdens to importers 
of softwood lumber and softwood lumber products.

Comment

    One commenter suggests that CBP should explain in the final rule 
that the declaration language set forth in Sec.  
12.142(c)(3)(iii)(B)(3), which states that ``the exporter has paid, or 
committed to pay, all export charges due,'' includes export charges 
that may be imposed retroactively after initial export charges are 
collected.

CBP Response

    Section 12.142(c)(3)(iii)(B)(3) of the interim rule requires the 
importer to declare, to his best knowledge and belief, that the 
exporter has paid or committed to pay ``all export charges due.'' It is 
CBP's view that as this language includes export charges imposed 
retroactively after initial export charges are collected, the 
commenter's suggested language is unnecessary.

Comment

    One commenter submits that CBP Dec. 08-32 properly reflects the 
requirements of the Act and should be adopted as final without change.

CBP Response

    CBP agrees that CBP Dec. 08-32 properly reflects the requirements 
of the Act.

Comment

    One commenter recommends that the final rule should retain the 
condition set forth in CBP Dec. 08-32 that an importer declaration is 
required for each shipment of covered merchandise and that blanket 
declarations should not be accepted.

CBP Response

    CBP concurs and will continue to require a declaration on each 
entry summary line item in the final rule.

Comment

    One commenter notes that the 2008 Harmonized Tariff Schedule of the 
United States (HTSUS) subheading numbers set forth in section 804(a) of 
the Act, which describe products covered by the Act, may change over 
time. The commenter states that as section 804(d) of the Act addresses 
this issue by providing that ``the descriptions of the covered 
articles, rather than the HTS subheading number, control whether a 
product is covered by the importer declaration program,'' Sec.  
12.142(b) should be amended accordingly.

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CBP Response

    CBP is of the view that Sec.  12.142(b) accurately reflects the 
scope of the statutory language and does not require further 
clarification. Section 804(d) of the Act provides, ``[F]or purposes of 
determining if a product is covered by the importer declaration 
program, the President shall be guided by the article descriptions 
provided in this section.'' Section 804(a) of the Act describes the 
products covered by the softwood lumber importer declaration program by 
identifying the applicable HTSUS tariff subheading numbers and 
accompanying article descriptions. The commenter's concern that 
potential changes to the 2008 HTSUS subheadings identified in section 
804(a) of the Act may have the effect of altering the scope of coverage 
is unwarranted inasmuch as section 804(d) of the Act ensures that a 
product's description will dictate whether it is covered by the Act. 
The fact that an article, otherwise described in section 804(a) of the 
Act, may be subsequently classified in a HTSUS subheading that is 
different from the tariff provisions originally listed in the statute 
will not preclude that article from being covered by the Act.

Comment

    One commenter is of the opinion that a conflict exists between the 
manner by which the export price must be reported on the entry summary 
pursuant to the Softwood Lumber Act of 2008 and the U.S.-Canada 
Softwood Lumber Agreement (SLA) of 2006. Specifically, the commenter 
notes that pursuant to the Softwood Lumber Agreement of 2006 the 
Canadian-issued export permit allows for an aggregated export price. 
Conversely, pursuant to section 803(b)(1) of the Softwood Lumber Act of 
2008, the export price reported on the entry summary may not be 
aggregated and must be listed for each line with a different line 
required for each consignee.

CBP Response

    CBP acknowledges that Canadian-issued export permits often present 
the export price as an aggregate figure. Presenting this data as an 
aggregate is not prohibited by the terms of the U.S.-Canada Softwood 
Lumber Agreement of 2006; however, it is prohibited under the terms of 
the Softwood Lumber Act of 2008, which requires that the export price 
reported on the entry summary be listed for each line with a different 
line required for each consignee. To reconcile this situation, CBP 
advises that in situations where the export price on a Canadian-issued 
export permit is aggregated, importers should allocate the export price 
among the lines on the entry summary. For example, if the export price 
listed on the export permit is $1000 and there are two line items on 
the entry summary, divide the $1000 to reflect each line item's 
respective percentage of the entered value. If seventy-five percent 
(75%) of the entered value is reported on one line item and twenty-five 
percent (25%) on the other, then list $750 as the export price on the 
first line item and $250 as the export price on the other line item. 
The export price listed on both line items on the entry summary should 
add up to the export price on the one line item of the Canadian-issued 
export permit.

Comment

    One commenter raises the concern that the reconciliation 
requirements set forth in the Act put into place a process that 
overlaps with the reconciliation process mandated under the U.S.-Canada 
Softwood Lumber Agreement of 2006 and that this could cause confusion 
or delay.

CBP Response

    CBP does not view the data collection and reconciliation 
requirements mandated by the Softwood Lumber Act of 2008 to be in 
conflict with those required by the U.S.-Canada Softwood Lumber 
Agreement of 2006. CBP acknowledges that while some of the data 
required to be submitted by importers pursuant to the 2008 Act may also 
be collected by Canada pursuant to the 2006 Agreement, there is no 
duplication in that a shipper is not required to submit the same 
information to the same country more than once. The common data 
elements that are submitted to both the U.S. and Canada should be the 
same. Therefore data reconciliation as required under the Softwood 
Lumber Act of 2008 should not affect data reconciliations under the 
U.S.-Canada Softwood Lumber Agreement of 2006.

Comment

    One commenter notes that the interim rule set forth in CBP Dec. 08-
32 unnecessarily places an increased burden on importers. It also 
impacts small and medium-sized enterprises, including the U.S. housing 
industry, and is likely to have a trade dampening effect.

CBP Response

    With regard to the commenter's statement that the interim rule 
places an unnecessary burden on importers, CBP reiterates that the 
interim rule merely implements the entry and recordkeeping requirements 
mandated by the Softwood Lumber Act of 2008. The interim rule does not 
impose any burdens on trade other than those explicitly required by 
law. Moreover, the prescribed method of data collection set forth in 
the regulation is intended to streamline the reporting process and 
minimize any administrative burden associated with reporting the 
required information. This process should help mitigate the 
administration burden for all enterprises, including small and medium-
sized businesses.

Comment

    One commenter requests that CBP identify the standard to be used in 
assessing civil penalties under the Softwood Lumber Act of 2008 by 
using the standard contained in 19 U.S.C. 1592 in a new 19 CFR 
12.142(f).

CBP Response

    CBP does not believe it is necessary to add this language to 19 CFR 
12.142 as the standards for assessing civil and criminal penalties are 
clearly prescribed by section 808 of the Softwood Lumber Act of 2008.

Comment

    One commenter states that CBP Dec. 08-32 does not specify which 
date should be used as the basis for the export price and export charge 
listed on the entry summary line. Without specifying the date required 
as the basis for the export price and export charge, different dates 
may be used which would create discrepancies between the export permit 
date and the entry summary data. The commenter suggests using the 
shipping date to be consistent with the U.S.-Canada Softwood Lumber 
Agreement of 2006.

CBP Response

    CBP does not believe this change is necessary as importers of 
softwood lumber and softwood lumber products from Canada need only 
report the export price listed on the permit issued by the Government 
of Canada.

Comment

    One commenter notes that CBP Dec. 08-32 does not reflect the fact 
that Canadian exporters are permitted to cap the export price at $500 
per thousand board feet when calculating the export charge. For this 
reason, the commenter submits that the export price on the entry 
summary will be inconsistent with that on the Canadian export permit 
when capped.

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CBP Response

    CBP does not believe this change is necessary as importers of 
softwood lumber and softwood lumber products only need to report the 
export price listed on the permit issued by the Government of Canada.

Comment

    One commenter requests that CBP add language to the interim rule 
that provides that where an international agreement between a country 
that exports softwood lumber or softwood lumber products and the United 
States provides greater specificity regarding aspects of the Softwood 
Lumber Act of 2008, CBP will implement 19 CFR 12.142 in accordance with 
the more specific law to the extent that it does not conflict with the 
2008 Act.

CBP Response

    CBP is of the view that such language is unnecessary. CBP Dec. 08-
32 implements the Softwood Lumber Act of 2008 in a manner that does not 
conflict with international softwood lumber agreements to which the 
U.S. is a signatory.

Comment

    One commenter strongly supports the requirement for the 
presentation of the original paper Maritime Lumber Bureau Certificate 
of Origin, as prescribed in CBP Dec. 08-32. The commenter, however, 
urges CBP to exclude entirely softwood lumber imported from the 
Canadian Maritime provinces from the importer declaration program 
promulgated in 19 CFR 12.142.

CBP Response

    The Softwood Lumber Act of 2008 requires CBP to collect the export 
price, export charge, if any, and importer declaration on all 
importations of covered softwood lumber and softwood lumber products. 
Accordingly, CBP is without authority to except softwood lumber 
imported from the Canadian Maritime provinces from the importer 
declaration program. CBP will continue to require the presentation of 
the original paper Maritime Lumber Bureau Certificate of Origin.

Conclusion

    After review of the comments and further consideration, CBP has 
decided to adopt as final the interim rule published in the Federal 
Register (73 FR 49934) on August 25, 2008, as CBP Dec. 08-32.

Inapplicability of Notice and Delayed Effective Date Requirements

    CBP has determined, pursuant to the provisions of 5 U.S.C. 
553(b)(B) and (d)(3), that prior public notice and comment procedures 
on this regulation are unnecessary and contrary to the public interest. 
These regulations align the CBP regulations to reflect the terms of 
Title VIII of the Tariff Act of 1930, as added by section 3301 of Title 
III, Subtitle D, of the Food, Conservation, and Energy Act of 2008 
(Pub. L. 110-246, enacted June 18, 2008), which went into effect August 
18, 2008. The regulatory amendments inform the public of the special 
entry and documentation requirements applicable to certain softwood 
lumber and softwood lumber products exported from any country into the 
United States. The regulations are currently in effect as an interim 
rule and this final rule does not change the interim rule. For these 
reasons, pursuant to the provisions of 5 U.S.C. 553(d)(3), CBP finds 
that there is good cause for dispensing with a delayed effective date.

Regulatory Flexibility Act and Executive Order 12866

    CBP Dec. 08-32 was issued as an interim rule rather than a notice 
of proposed rulemaking because CBP had determined there was good cause. 
The amendments were necessary to inform the public on how to comply 
with statutory requirements. Because no notice of proposed rulemaking 
was required, the provisions of the Regulatory Flexibility Act (5 
U.S.C. 601 et. seq.) do not apply. Further, these amendments do not 
meet the criteria for a ``significant regulatory action'' as specified 
in E.O. 12866.

Paperwork Reduction Act

    The collections of information in this document are contained in 
Sec. Sec.  12.142(c) and (d) (19 CFR 12.142(c) and (d)). This 
information is used by CBP to fulfill its information collection 
obligations under Title VIII of the Tariff Act of 1930, as added by 
section 3301 within Title III, Subtitle D, of the Food, Conservation, 
and Energy Act of 2008 (Pub. L. 110-246), whereby importers of certain 
softwood lumber and softwood lumber products are required to submit the 
export price, estimated export charge, if any, and an importer 
declaration with the entry summary information or, where applicable, to 
submit additional documentation required for home packages and kits. 
The likely respondents are business organizations including importers 
and brokers.
    The collection of information associated with the entry summary 
documentation (CBP Form 7501) was previously approved by the Office of 
Management and Budget under control number 1651-0052. In accordance 
with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), CBP has 
submitted to OMB for review an adjustment to the information provided 
to OMB for the previously approved OMB control number to account for 
the changes in this rule. The estimated annual burden associated with 
the collection of information in this final rule is now estimated to be 
1,269 hours per respondent. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a valid control number assigned by OMB.

Signing Authority

    This document is being issued in accordance with 19 CFR 0.1(a)(1).

List of Subjects

19 CFR Part 12

    Bonds, Customs duties and inspection, Entry of merchandise, 
Imports, Prohibited merchandise, Reporting and recordkeeping 
requirements, Restricted merchandise.

19 CFR Part 163

    Customs duties and inspection, Reporting and recordkeeping 
requirements.

Amendment to the CBP Regulations

0
Accordingly, the interim rule amending Parts 12 and 163 of the CBP 
Regulations (19 CFR Parts 12 and 163), which was published at 73 FR 
49934 on August 25, 2008, is adopted as a final rule.

Alan Bersin,
Commissioner, U.S. Customs and Border Protection.
    Approved: August 23, 2010.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2010-21244 Filed 8-25-10; 8:45 am]
BILLING CODE 9111-14-P