[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.
[[Page 52454]]
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.
[[Page 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
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]
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