Census' Final Rule on Mandatory AES (Part II)
The U.S. Census Bureau has issued its final rule, effective July 2, 2008, which amends 15 CFR Part 30 to make mandatory1 the filing of export information through the Automated Export System or AESDirect2, for all shipments where a Shipper's Export Declaration (SED) is currently required, etc.
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Although the final rule takes effect July 2, 2008, Census is providing the trade an additional 90 days to implement the changes required by the final rule. After this 90-day period ends on September 30, 2008, enforcement of the final rule begins.
This is Part II of BP's multi-part series of summaries on Census' final rule (Subpart A - Appendices) and provides highlights from Census' description of the changes the final rule makes to the regulations, supplemented in some places with details from the final rule's regulatory language and a Census FAQ. The changes listed by Census include:
Subpart A
Mandatory Filing of Electronic Export Information Through AES
Requirements for filing a paper Shipper's Export Declaration (Commerce Form 7525-V) are removed from 15 CFR Part 30, so that AES will be the only mode for filing information previously required by the SED.
(Note that the final rule uses the term Electronic Export Information (EEI), which is the electronic equivalent of the export data formerly collected as SED information and now mandated to be filed through the AES.)
Filing the EEI
Subpart A specifies the four options for filing EEI: (1) AESDirect; (2) AES software developed using the AES Trade Interface Requirements (AESTIR); (3) purchased software developed by certified vendors using the AESTIR; or (4) use of an authorized agent.
(The filer of the EEI for export transactions is either the U.S. Principal Party in Interest (USPPI), the USPPI's authorized agent, or the authorized U.S. agent of the Foreign Principal Party in Interest (FPPI). See the final rule for certain restrictions on filing by the FPPI.)
In a "routed" transaction (i.e, a transaction where the FPPI authorizes a U.S. agent to prepare and file the EEI), the USPPI can compile and transmit export information on behalf of the FPPI when agreed upon by the FPPI. This permits the USPPI to act as an agent of the FPPI upon the written authorization by the FPPI.
Certain types of export transactions are outside the scope of the FTR and are excluded from filing EEI. For example, goods shipped under U.S. Customs and Border Protection bond through the U.S., Puerto Rico, or the U.S. Virgin Islands from one foreign country or area to another where such goods do not enter the consumption channels of the U.S. do no require the filing of EEI. The final rule's list of out-of-scope transactions is not all-inclusive, but includes the types of shipments about which Census receives frequent inquiries.
Predeparture - Filing Timeframes
Census requires the EEI (Electronic Export Information) to be filed through AES and the filing citation or exemption legend to be provided to the carrier within certain timeframes.
Non-USML shipments. Except for U.S. Munitions List shipments under the control of the International Traffic in Arms Regulations (ITAR), the filing of the EEI and providing the appropriate proof of filing citation or exemption legend to the exporting carrier should occur no later than:
| Vessel cargo | 24 hours prior to loading cargo on the vessel at the U.S. port where the cargo is laden |
| Air cargo3 | 2 hours prior to the scheduled departure time of the aircraft |
| Truck cargo4 | 1 hour prior to the arrival of the truck at the U.S. border to go foreign |
| Rail cargo | 2 hours prior to the time the train arrives at the U.S. border to go foreign |
| Mail, etc.5 | 2 hours prior to departure of exporting carrier |
| Pipeline | Within 4 calendar days following the end of the month |
(For USML shipments, the deadlines are no later than:
Vessel cargo - 24 hours prior to loading cargo on the vessel at the U.S. port where the cargo is laden
Rail cargo - 24 hours prior to the time the train arrives at the U.S. border to go foreign
Truck cargo - 8 hours prior to the arrival of the truck at the U.S. border to go foreign
Air cargo - 8 hours prior to the scheduled departure time of aircraft)
Postdeparture Filing
The moratorium placed on Census' acceptance of new letters of intent (LOI) to participate in postdeparture filing in August 2003 remains in effect pending further review of the program. As a result, postdeparture filing is limited to currently approved USPPIs. (See ITT's Online Archives or 08/26/03 news, 03082610, for BP summary on Census' suspension of acceptance of AES postdeparture filing LOIs.)
(Postdeparture filing provides for the electronic filing of the required data elements for all shipments (other than those for which predeparture filing is specifically required) by all methods of transportation, no later than ten calendar days from the date of exportation.)
Despite the moratorium, the FTR contains regulations on the postdeparture filing approval and certification requirements, some of which have been revised to address U.S. national security concerns and interests.
For example, (1) authorized agents may no longer apply for postdeparture filing status on behalf of individual USPPIs. Only USPPIs may apply; (2) USPPIs would need to demonstrate the ability to meet the AES predeparture filing requirements by filing EEI through the AES before being approved for the postdeparture filing privilege; (3) USPPIs would also need to have a minimum number of shipments before being authorized to file postdeparture; and (4) partnership agencies of the U.S. government would determine whether or not a USPPI poses a significant threat to U.S. national security before granting the applicant postdeparture filing status.
Filing When AES Systems Unavailable
The final rule specifies how to file EEI and acquire an ITN (Internal Transaction Number) when AES, AESDirect or the participant's AES are unavailable for filing.
(Only the ITN is acceptable as the proof of filing citation. The XTN (External Transaction Number) cannot be used for this purpose under the final rule.)
Inland Freight and Insurance Not Known at Time of Exportation
The specific procedure for reporting the value of goods to AES when inland freight and insurance charges are not known at the time of exportation are detailed.
When goods are sold at a point other than the port of export, freight, insurance, and other charges required to move the goods from their U.S. point of origin to the carrier at the port of export must be added to the selling price (or cost, if not sold) of the goods. Where the actual amount of freight, insurance, and other domestic charges are not available, an estimate of the domestic cost must be made and added to the cost or selling price of the goods to obtain the value to be reported to the AES.
EEI Data Elements Revised
The list of data elements to be reported through AES was revised by adding the Routed Export Transaction Indicator and the Vehicle Identification Qualifier and removing the Date of Arrival and Waiver of Prior Notice Indicators.
Definitions
A new section which includes more than 100 definitions has been added to the FTR.
In-Transit SED Requirements Removed
Requirements for filing the in-transit SED (ENG Form 7513) from 15 CFR Part 30 are removed. (Responsibility for Form 7513 was transferred to the U.S. Department of the Army, U.S. Army Corps of Engineers.)
Subpart B
Other Agency Export Control and Licensing
Export control and export licensing issues are set forth in Subpart B and references to export control and licensing requirements of the State Department and other federal agencies were added. General guidelines for obtaining export control and licensing information also are presented for use by preparers and filers of EEI. Census states that the purpose of Subpart B is to consolidate references to export control issues. There are no new requirements.
Subpart C
Reporting Repairs, Replacement Parts, Etc.
In 15 CFR 30.29 of Subpart C, the proper manner for reporting cost of repairs and/or alterations to goods are described, and the reporting of the value of replacement parts exported are revised. Previously, the FTSR did not specifically describe the manner in which these export transactions should be reported. Goods previously imported for repair and alteration only, and reexported, shall only include the value for parts and labor. Goods exported as replacement parts shall only include the value of the replacement part.
Subpart D
EEI Filing Exemptions
Subpart D covers exemptions from the requirements for the filing of electronic export information. Census' description of the final rule's changes does not address any changes in Subpart D.
Subpart E
Carrier and Manifest Issues
Carrier and manifest issues are consolidated in Subpart E. Requirements for SEDs being attached to the manifest are replaced with requirements for proof of filing citations and/or exemption legends to be shown on the bill of lading, air waybill, or other commercial loading documents attached to the manifest. Specific requirements for annotating the bill of lading, air waybill, or other commercial loading documents are included in Subpart A.
Subpart F
Import Requirements
Requirements for import shipments relevant to 15 CFR 30 are set forth in Subpart F, including requirements for the electronic filing of statistical data for shipments imported into Foreign Trade Zones (FTZs). Currently, requirements for electronically reporting FTZ admissions are included in the Census Bureau's "Automated Foreign Trade Zone Reporting Program" manual. Instructions to import filers on where to obtain information on reporting import data are added to Subpart F.
Requirements for information on imports of goods into Guam are excluded from the FTR since Guam collects its own information on goods entering and leaving the area.
Subpart G
General Administrative Provisions
Subpart G covers general administrative provisions. Census' description of the final rule's changes does not address any changes in Subpart G.
Subpart H
Penalties
New penalty provisions in Subpart H describe the increase in penalties imposed for violations from $100 to $1,000 for each day of delinquency, to a maximum from $1,100 to $10,000 per violation. In addition, the penalty provisions provide for situations when the filer knowingly fails to file, files false and/or misleading information and other violations of the FTR where a civil penalty shall not exceed $10,000 per violation and a criminal penalty shall not exceed $10,000 or imprisonment for no more than five years, or both, per violation.
Enforcement
The enforcement of these penalty provisions will be carried out by the BIS' Office of Export Enforcement (OEE) and DHS' U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). OEE, ICE, and CBP may conduct investigations related to enforcement.
Voluntary Self-Disclosure
A voluntary self-disclosure may be made of any violation or suspected violation of the FTR. Census states that while voluntary self-disclosure is a mitigating factor in determining what corrective actions will be required by Census and/or whether the violation will be referred to the Bureau of Industry and Security (BIS) to determine what administrative sanctions, if any, will be sought, it is a factor that is considered together with all other factors in a case. The weight given to voluntary self-disclosure is within the discretion of Census and BIS, and the mitigating effect of voluntary self-disclosure may be outweighed by aggravating factors.
Appendices
The following appendices are included in the FTR (some of which are new):
Appendix A - Sample of Power of Attorney and written authorization
Appendix B - AES Filing Codes
Appendix C - Summary of Exemptions and Exclusions from EEI filing
Appendix D - AES Filing Citation, Exemption and Exclusion Legends
Appendix E - FTSR to FTR Concordance
Appendix F - FTR to FTSR Concordance
1Public Law 107-228 authorized the Secretary of Commerce, with the concurrence of the Secretaries of State and Homeland Security, to publish regulations mandating that all persons who are required to file export information under 13 USC Chapter 9 file such information through AES.
2AES is the electronic method for filing SED information directly with U.S. Customs and Border Protection and Census. AESDirect is the Census' free Internet-based system for filing SED information with AES. AESPcLink is a Windows-based desktop PC component of AESDirect that allows filers to enter their SED information off-line and connect to AESDirect using the Internet to submit their SEDs to AES.
3including cargo being transported by Air Express Couriers
4including cargo departing by Express Consignment Couriers
5mail and cargo shipped by other methods, except pipeline
(See ITT's Online Archives or 06/02/08 news, 08060200, for Part I of BP's summary of Census' final rule.
See ITT's Online Archives or 06/03/08 news, 08060305, for BP summary of Census letter to CBP and the trade on its final rule.)
Census contact - C. Harvey Monk, Jr. (301) 763-2932
Census' Mandatory AES Website containing additional information, including seminars and workshops, at http://www.census.gov/foreign-trade/aes/mandatory/index.html
Census final rule (FR Pub 06/02/08, D/N 031009254-6014-03) available at http://edocket.access.gpo.gov/2008/pdf/E8-12133.pdf.