CBP Issues Final Rule on Softwood Lumber Import Data/Declaration Requirements

CBP also responds to comments submitted in response to the interim final rule.

Overview of Final Rule

The finalized regulations continue to prescribe certain entry and documentation requirements for certain softwood lumber and softwood lumber products exported from any country into the U.S., as required by the Softwood Lumber Act of 2008 (SLA 2008), which was enacted as part of the 2008 Farm Bill.

(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. The Act also imposed new recordkeeping requirements applicable to certain imports of softwood lumber home packages and kits.

See ITT’s Online Archives or 08/26/08 news, 08082615, for BP summary detailing the interim final rule).

Highlights of CBP Responses to Comments

The following are highlights of CBP’s responses to comments received on its August 2008 interim rule:

Importer Declaration Required for Each Line Item

In response to a comment that the final rule should retain the condition that an importer declaration is required for each shipment of covered merchandise and that blanket declarations should not be accepted, CBP stated that it concurs and will continue to require a declaration on each entry summary line item in the final rule.

Export Price Required at Line Level by Consignee

CBP notes that it 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 (SLA 2006); however, it is prohibited under the terms of the SLA 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.

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.

SLA 2008 Data/Reconciliation Requirements Do Not Conflict with SLA 2006

CBP does not view the data collection and reconciliation requirements mandated by the SLA 2008 to be in conflict with those required by the SLA 2006. CBP acknowledges that while some of the data required to be submitted by importers pursuant to the SLA 2008 may also collected by Canada pursuant to the SLA 2006, 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 SLA 2008 should not affect data reconciliations under the SLA 2006.

CBP Will Not Add Civil Penalty Standard to 19 CFR

One commenter requested that CBP identify the standard to be used in assessing civil penalties under the SLA 2008 in a new 19 CFR 12.142(f). However, CBP states that it 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 SLA 2008.

No Exception for Lumber from Canadian Maritime Provinces

CBP states that it 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.

“All Export Charges Due” Includes Those Imposed Retroactively

CBP also states that 19 CFR 12.142(c)(3)(iii)(B)(3) requires the importer to declare, to his best knowledge and belief, that the exporter has paid or committed to pay “all export charges due.” This language includes export charges imposed retroactively after initial export charges are collected.

Scope of SLA 2008 Identified by Descriptions, Not Tariff Numbers

A commenter noted that the 2008 Harmonized Tariff Schedule subheading numbers set forth in Section 804(a) of the SLA 2008, which describe covered products, may change over time. The commenter states that as Section 804(d) 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,” 19 CFR 12.142(b) should be amended accordingly.

CBP states that it is of the view that 19 CFR 12.142(b) accurately reflects the scope of the statutory language and does not require further clarification. The commenter’s concern that potential changes to the 2008 HTS subheadings identified may have the effect of altering the scope of coverage is unwarranted as Section 804(d) of the SLA 2008 ensures that a product’s description will dictate whether it is covered by SLA 2008. The fact that an article, otherwise described in section 804(a) of the SLA 2008, may be subsequently classified in a HTS subheading that is different from the tariff provisions originally listed in the statute will not preclude that article from being covered by the SLA 2008.

(See ITT's Online Archives or 08/14/08 news, 08081410, for BP summary of details of the importer data/declaration, as enacted by the Farm Bill.)

CBP contact -- Renee Chovanec (202) 863-6384

(FR Pub 08/26/10; CBP. Dec. 10-27, D/N USCBP 2008-0052)