CBP May Require New Softwood Lumber Import Data/Declaration as Soon as August 18, 2008

(Based on a side-by-side comparison, these 'specified' products appear to be the same as those subject to the 2006 U.S.-Canada Softwood Lumber Agreement (SLA 2006) However, P.L. 110-246 does not state that the provisions of the Act are limited to Canada.)

According to P.L. 110-246, the amendments made by the Act are to take effect on August 18, 2008 (i.e., 60 days after the date of enactment (June 18, 2008)).

CBP is Making ABI System Changes to Implement New Requirements

U.S. Customs and Border Protection recently issued a CSMS message providing the Automated Broker Interface (ABI) system requirements for the additional trade data elements (export price, export charges, importer declaration indicator) associated with the softwood lumber import data/declaration.

Sources state that CBP expects to complete the ABI system changes by August 18, 2008, and will notify the trade in a future CSMS message when the system changes are complete.

Details of Import Data/Declaration Program

According to P.L. 110-246, the following must be submitted by any person seeking to import 'specified' softwood lumber or softwood lumber products:

the export price for each shipment; and

the estimated export charge, if any, as calculated by applying the Commerce Department's export charge percentage (see below).

a declaration that:

o the person has made appropriate inquiry, including seeking appropriate documentation from the exporter and consulting the Commerce Department's export charge determinations; and

o to the best of the person's knowledge and belief (a) the export price provided by the importer (see above) is determined in accordance with the Act's definition of export price; (b) the export price provided by the importer (see above) is consistent with the export price provided on the export permit, if any, granted by the country of export; and (c) the exporter has paid, or committed to pay, all export charges due (i) in accordance with the volume, export price, and export charge rate or rates, if any, as calculated under an international agreement entered into by the country of export and the U.S.; and (ii) consistent with the Commerce Department's export charge determinations.

(Although P.L. 110-246 provides for records supporting this declaration to be produced in certain penalty situations (see below), for ABI purposes, this declaration will take the form of an indicator.)

Documentation Required Upon Request, for Excepted Home Packages or Kits

In the case of each entry of certain home packages or kits described in P.L. 110-246 as exceptions to the import data/declaration program, specified documentation (e.g., copy of home design, purchase contract, parts list, etc.) is required to be retained by the importer and made available to CBP upon request.

Export Charge Determinations, Reconciliations, Verifications, Penalties, Etc.

According to P.L. 110-246, the Commerce and Treasury Departments, etc. will be required to make certain determinations and/or publish certain information. P.L. 110-246 also provides for certain penalties and reports.

Monthly Determination and Publication of Export Charges

P.L. 110-246 requires the Commerce Department to determine, on a monthly basis, any export charges (expressed as a percentage of export price) to be collected by a country of export from exporters of 'specified' softwood lumber or softwood lumber products in order to ensure compliance with any international agreement entered into by that country and the U.S., and to publish that determination on the International Trade Administration's Web site.

Reconciliation of Import Data, Softwood Lumber Agreements

The Treasury Secretary is required to reconcile the export price declared by the U.S. importer with (1) any export price reported to the U.S. by the country of export; and (2) any revised export price reported to the U.S. by the country of export.

The Treasury Secretary is also required to conduct reconciliations to ensure the proper implementation and operation of international agreements entered into between a country of export of 'specified' softwood lumber or softwood lumber products and the U.S.

Verification of Import Data, Declarations

The Treasury Secretary is also required to periodically verify U.S importer declarations, including by determining whether (a) the export price declared by a U.S. importer is the same as the export price provided on the export permit, if any, issued by the country of export; and (b) the estimated export charge declared by a U.S. importer is consistent with the export charge determination published by the Commerce Department (as described above).

Penalties, Etc.

P.L. 110-246 makes it unlawful for any person to import into the U.S. softwood lumber or softwood lumber products in knowing violation of the Act. Any person who commits such an unlawful act shall be liable for a civil penalty not to exceed $10,000.

In addition to the civil penalties discussed above, any violation of the Act that violates any other customs law of the U.S. shall be subject to any applicable civil and criminal penalty, including seizure and forfeiture, that may be imposed under such custom law or 18 U.S. Code, with respect to the importation of 'specified' softwood lumber and softwood lumber products.

Notwithstanding any other provision of the Softwood Lumber Act of 2008, and without limitation, an importer shall not be found to have violated the importer declaration requirements if: (1) the importer made an appropriate inquiry with respect to the declaration; (2) the importer produces required records that substantiate the declaration; and (3) there is not substantial evidence indicating that the importer knew that the fact to which the importer made the declaration was false.

President, Commerce, and GAO Required to Submit Reports to Congress

P.L. 110-246 also requires a number of reports to be issued:

President. Not later than 180 days after the effective date of the Softwood Lumber Act of 2008, and every 180 days thereafter, the President is required to submit to the appropriate congressional committees a report (1) describing the Treasury Secretary's reconciliations and verifications of the importer information and declarations; (2) identifying the manner in which the U.S. importers subject to such reconciliations and verifications were chosen; (3) identifying any penalties imposed; (4) identifying any patterns of noncompliance and any problems or obstacles encountered in the implementation and enforcement of the Softwood Lumber Act of 2008.

Commerce. Not later than 180 days after the date of the enactment of the Softwood Lumber Act of 2008, and every 180 days thereafter, the Secretary of Commerce is required to provide to the appropriate congressional committees a report on any subsidies on softwood lumber or softwood lumber products, including stumpage subsidies, provided by countries of export.

GAO. The Government Accountability Office will be required to submit the following reports to the appropriate congressional committees: (1) not later than 18 months after the date of the enactment, a report on the effectiveness of the Treasury Secretary's reconciliations and verifications; and (2) not later than 12 months after the date of the enactment, a report on whether countries that export softwood lumber or softwood lumber products to the U.S. are complying with any international agreements entered into by those countries and the U.S.

(See ITT's Online Archives or 07/31/08 news, 08073115, for BP summary of CBP's CSMS message on the ABI system requirements for the softwood lumber importer declaration program.

See ITT's Online Archives or 05/19/08 news, 08051905, for previous BP summary on the softwood lumber provision in the 2008 Farm Bill.)

2008 Farm Bill available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h6124enr.txt.pdf (see Title III, Section 3301 for softwood lumber importer declaration program).