Federal Register / Vol. 75, No. 165 / Thursday, August 26, 2010 / Rules and Regulations 52453 

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. 

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 § 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 

§ 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,’’ 

§ 12.142(b) should be amended 

accordingly. 

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52454 Federal Register / Vol. 75, No. 165 / Thursday, August 26, 2010 / Rules and Regulations 

CBP Response 

CBP is of the view that § 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 Canadianissued 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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Federal Register / Vol. 75, No. 165 / Thursday, August 26, 2010 / Rules and Regulations 52455 

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 §§ 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 

■ 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 

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