Foreign Trade Regulations: Clarification on Filing Requirements

AGENCY:

Bureau of the Census, Commerce Department.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Bureau of the Census (Census Bureau) is proposing to amend its regulations to reflect new export reporting requirements related to the implementation of the International Trade Data System (ITDS), in accordance with the Executive Order 13659, Streamlining the Export/Import Process for American Businesses. The ITDS was established by the Security and Accountability for Every (SAFE) Port Act of 2006. The proposed changes also include the addition of two new data elements in the Automated Export System (AES); the original Internal Transaction Number (ITN) field and the used electronics indicator. Lastly, the Census Bureau proposes to make changes to provide clarity on existing reporting requirements. These changes are discussed in detail in the SUPPLEMENTARY INFORMATION section.

DATES:

Submit written comments on or before May 9, 2016.

ADDRESSES:

Please direct all written comments on this notice of proposed rulemaking to the Chief, International Trade Management Division, U.S. Census Bureau, Washington, DC 20233-6010. You may also submit comments, identified by RIN number 0607-AA55, to the Federal e-Rulemaking Portal: http://www.regulations.gov. All comments received are part of the public record. No comments will be posted to http://www.regulations.gov for public viewing until after the comment period has closed. Comments will generally be posted without change. All Personal Identifying Information (for example, name and address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. The Census Bureau will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Dale C. Kelly, Chief, International Trade Management Division, U.S. Census Bureau, Washington, DC 20233-6010, by phone: (301) 763-6937, by fax: (301) 763-8835, or by email: dale.c.kelly@census.gov.

SUPPLEMENTARY INFORMATION:

Background

The Census Bureau is responsible for collecting, compiling, and publishing trade statistics for the United States under the provisions of title 13 of the United States Code (U.S.C.), chapter 9, section 301. The International Trade Data System (ITDS), the interagency program for collecting trade related information was established by section 405 of the Security and Accountability for Every (SAFE) Port Act of 2006 (Pub. L. 109-347, 120 Stat. 1884) to eliminate redundant information collection and for the collection and distribution of standard electronic import and export data required by all participating federal agencies. The ITDS also seeks to efficiently regulate the flow of commerce and to effectively enforce laws and regulations relating to international trade by establishing a single portal system, or “single window.”

The Automated Export System (AES), or any successor system, is the mechanism by which Census Bureau collects Electronic Export Information (EEI)—the electronic equivalent of the export data formerly collected on the Shipper's Export Declaration, reported pursuant to title 15 of the Code of Federal Regulations (CFR), part 30. In order to achieve the goals of the ITDS, the AES has been incorporated into Automated Commercial Environment (ACE), the “single window,” which is operated and maintained by U.S. Customs and Border Protection (CBP) for the submission and processing of trade information. The AES will additionally include export information collected under other federal agencies' authority, which is subject to those agencies' disclosure mandates.

The Census Bureau is also proposing to add two new data elements, “Original ITN” and a “Used electronics indicator.” The “Original ITN” may be utilized if a previously filed shipment is replaced or divided and for which additional shipment(s) must be filed. Adding the “Original ITN” will assist the export trade community and enforcement agencies in identifying that a filer completed the mandatory filing requirements for the original shipment and any additional shipment(s). The “Used electronics indicator” is being added to improve information on trade flows on used electronics in order to effectuate the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. 6901 et seq.; Executive Order 13693, Planning for Federal Sustainability in the Next Decade; and the National Strategy for Electronics Stewardship. The goal of these directives is to improve the availability and quality of data on the trade and handling of used electronics in order to develop and encourage the employment of environmentally sound practices with respect to disposal of all excess or surplus electronic products in order to reduce the likelihood of negative impacts to the health and environment in developing countries.

The revised timeframes for split shipments that were addressed in FTR Letter #6, Notice of Regulatory Change for Split Shipments, have been incorporated into the proposed text.

Finally, the proposed revisions to the FTR have received concurrence from the Department of Homeland Security and the U.S. Department of State as required by title 13, United States Code, section 303, and Public Law 107-228, div. B, title XIV, section 1404.

Program Requirements

The Census Bureau is proposing to amend the following sections of 15 CFR part 30:

• In § 30.1(c), revise the definition of “AES applicant” to remove the text “applies to the Census Bureau for authorization” and “or its related applications” because the registration will no longer go through the Census Bureau. Rather, the registration will be submitted to CBP through its Web site or through ACE and will be processed by CBP. Also, related applications will be eliminated.
• In § 30.1(c), revise the definition of “AES Direct” to clarify the appropriate parties that can transmit Electronic Export Information (EEI) through the AES, clarify that all regulatory requirements pertaining to AES also apply to AES Direct, and eliminate the URL.
• In § 30.1(c), revise the definition of “AES downtime filing citation” to allow for an electronic process and to clarify that the citation cannot be used for shipments subject to the International Traffic in Arms Regulations (ITAR).
• In § 30.1(c), remove the definition of “AES participant application (APA)” because the APA is no longer used for filers to obtain access to the AES.
• In § 30.1(c), revise the definition of “Annotation” to remove the word “placed” to eliminate the implication of a manual process and add “or electronic equivalent” to allow for an electronic process.
• In § 30.1(c), add the definition of “Automated Commercial Environment (ACE)” to identify the system through which the trade community reports data.
• In § 30.1(c), revise the definition of “Automated Export System (AES)” to reduce redundancy.
• In § 30.1(c), revise the definition of “Bill of lading (BL)” to distinguish between the responsibilities of the carrier and the authorized agent.
• In § 30.1(c), revise the definition of “Container” to make the language consistent with Article 1 of the Customs Convention on Containers.
• In § 30.1(c), remove the definition of “Domestic exports” because this term is not used in the FTR and add the definition of “Domestic goods.”
• In § 30.1(c), revise the definition “Fatal error message” by removing the language “the problem, correct the data” to reduce redundancy.
• In § 30.1(c), revise the term “Filers” to “Filer” and revise the definition to reduce redundancy.
• In § 30.1(c), remove the definition of “Foreign exports” because this term is not used in the FTR and add the definition of “Foreign goods.”
• In § 30.1(c), remove the definition for “Non Vessel Operating Common Carrier (NVOCC)” because the term is not referenced in the FTR.
• In § 30.1(c), revise the definition of “Proof of filing citation” by removing the word “placed” to eliminate the implication of a manual process and allow for an electronic process.
• In § 30.1(c), remove the definition of “Reexport” because the term is not used for statistical purposes in the FTR.
• In § 30.1(c), revise the definition of “Service center” to clarify the role of a service center as it pertains to the FTR.
• In § 30.1(c), revise the term “Shipment reference number” to read as “Shipment Reference Number (SRN).”
• In § 30.1(c), revise the definition of “Split shipment” to incorporate the revised timeframes addressed in FTR Letter #6, Notice of Regulatory Change for Split Shipments.
• In § 30.1(c), revise the term “Transportation reference number” to read as “Transportation Reference Number (TRN).”
• In § 30.1(c), add the term “Used electronics” to clarify the new conditional data element that will be collected.
• Revise § 30.2(a)(1)(iv)(A) to ensure consistency with the Department of Commerce, Bureau of Industry and Security regulations.
• Revise § 30.2(a)(1)(iv)(C) to add language which notes that the filer must reference the Department of State regulations for exceptions to the filing requirements for goods subject to the ITAR.
• Revise § 30.2(b)(3) to remove the reference to “30.4(b)(3)” and add “30.4(b)(4)” in its place.
• Revise § 30.2(c) to clarify the ACE Exporter Account Application and Certification Process.
• Revise § 30.3(e)(2) to add language requiring the date of export and Internal Transaction Number (ITN) to be provided to the U.S. Principal Party in Interest (USPPI) upon request.
• Revise § 30.3(e)(2) to add paragraph (xv) “Ultimate consignee type” to clarify that the authorized agent is responsible for reporting the ultimate consignee type in a routed export transaction.
• Revise § 30.4(b)(2)(v) to reference only mail shipments by removing the words “and cargo shipped by other modes, except pipelines” because all other modes are covered in paragraph (vi). In addition, revise language to replace “exporting carrier” with “U.S. Postal Service” and remove the reference to § 30.46 because pipeline language has been added to § 30.4(c)(2).
• Revise § 30.4(b)(3) to indicate that the USPPI or authorized agent must provide the proof of filing citation, postdeparture filing citation, AES downtime citation, exemption or exclusion legend to the carrier.
• Revise § 30.4(c) to read “EEI transmitted postdeparture.”
• Revise § 30.4 by adding paragraphs (c)(1) to address current postdeparture filing procedures and (c)(2) to address pipeline filing procedures.
• Revise the title of § 30.5 to be “Electronic Export Information filing processes and standards” to accurately reflect the information that remains in this section since the AES application and certification process are removed.
• Revise § 30.5 to remove the introduction paragraph and remove and reserve paragraphs (a) and (b) because the certification process is now addressed in § 30.2(c).
• Remove § 30.5(d)(3) to remove outdated requirements.
• Revise § 30.5(f) to amend outdated information.
• Revise § 30.6 introductory paragraph to add language indicating that additional elements collected in ITDS are mandated by the regulations of other federal government agencies.
• Revise § 30.6(a)(1) to include the definition of the USPPI for consistency with the format for other data elements.
• Revise § 30.6(a)(1)(iii) to clarify the use of an Employer Identification Number (EIN) and include the Data Universal Numbering System (DUNS) number as an acceptable USPPI ID number.
• Revise § 30.6(a)(1)(iv) to clarify whose contact information should be provided in the AES for the USPPI.
• Revise § 30.6(a)(5)(i) to clarify the country of ultimate destination to be reported with respect to shipments under BIS and State Department export licenses.
• Revise § 30.6(a)(5)(ii) and add paragraphs (A) through (C) to clarify the country of ultimate destination to be reported with respect to shipments not moving under an export license.
• Revise § 30.6(a)(11) by removing paragraphs (i) and (ii) as domestic goods and foreign goods are now included in § 30.1(c) as definitions.
• Revise § 30.6(a)(19) to conform with the revised term “Shipment reference number (SRN).”
• Revise the title of § 30.6(b)(14) to conform with the revised term “Transportation Reference Number (TRN).”
• Revise § 30.6(b) to add paragraph (18) to include the used electronics indicator to improve information on trade flows and the disposal of used electronics to ensure compliance with the Resource Conservation and Recovery Act (RCRA) 42 U.S.C 6901 et seq. and Executive Order 13693, Planning for Sustainability in the Next Decade.
• Revise § 30.6(c) to add paragraph (3) to include the original ITN field. Adding the original ITN field will assist the export trade community and enforcement agencies in identifying that a filer completed the mandatory filing requirements for the original shipment and any additional shipment(s).
• Remove § 30.10(a)(1) and (2) because the electronic certification notice is no longer provided.
• Revise § 30.28 introductory paragraph to incorporate the revised timeframes addressed in FTR Letter #6, Notice of Regulatory Change for Split Shipments.
• Revise § 30.28(a) to allow for an electronic process and incorporate the revised timeframes.
• Revise § 30.28 by removing paragraph (c) to eliminate redundancy.
• Revise § 30.29(a)(1), (a)(2) and (b)(2) to remove the terms “Non-USML” and “USML” and add the phrases “goods not licensed by a U.S. Government agency” and “goods licensed by a U.S. Government agency or controlled by the ITAR” to clarify that EEI shall be filed as stated on the export license, if applicable.
• Revise § 30.36(b)(4) to ensure consistency with the Export Administration Regulations.
• Revise the title to subpart E and § 30.45, revise § 30.45(a), (a)(1) and (b), remove and reserve § 30.45(a)(2), and remove § 30.45(c) through (f) to ensure consistency with the CBP regulations.
• Revise §§ 30.46 and 30.47 by removing and reserving these sections.
• Revise § 30.50 introductory paragraph to remove Automated Broker Interface (ABI) and insert the reference to ACE.
• Revise § 30.53 introductory paragraph to provide more detail for classifying goods temporarily imported for repair and remove § 30.53(a) and (b).
• Revise § 30.74(c)(5) to indicate the new division name and revise the address.

Appendix B

• Revise appendix B, part III, to include the new BIS License Exception C60 DY6—.y “600 series” items.
• Revise appendix B, part III, to include the new BIS License Exception C62 SCP—Support for the Cuban People.

Appendix D

• Revise the title in appendix D to read “Appendix D to Part 30—AES Filing Citation, Exemption and Exclusion Legends.”
• Revise appendix D numbers III and IV to clarify the dates listed in the examples are the dates of export.
• Revise appendix D to remove “XII. Proof of filing citations by pipeline.”

Appendix E

• Remove appendix E as the references between the Foreign Trade Statistics Regulations (FTSR) and FTR are no longer necessary because the FTSR became obsolete on June 2, 2008.

Rulemaking Requirements

Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule will not have a significant impact on a substantial number of small entities.

This action requires that U.S. Principal Parties in Interest (USPPIs) or authorized agents in the United States file export information to the AES for all shipments where an Electronic Export Information (EEI) record is required under the FTR. The SBA's table of size standards indicates that businesses that are the USPPI or authorized agent and file export information are considered small businesses if they employ less than 500 people. Based on Exhibit 7a of the 2013 Profile of U.S. Exporting Companies, the Census Bureau estimates that there are 297,000 USPPIs that are considered small business entities under the Small Business Act definition. And more than 90 percent of these USPPIs use an authorized agent to file export information. An estimate of the number of authorized agents is not known and unable to be determined.

The Census Bureau anticipates that the new requirements will not significantly affect the small businesses that file through the AES. While this regulation would likely affect a substantial number of agents that are small entities, it is not likely that the effect will be significant. The majority of agents require use of a computer to perform routine tasks, such as filing through the AES. These agents are unlikely to be significantly affected by these new requirements, as they already possess the necessary technology and equipment to submit the information through the AES. In addition, it is not necessary for small businesses to purchase software for this task because a free Internet-based system is provided, AES Direct, especially for small businesses to submit their export information electronically. The proposed new requirements will have minimal impact on response burden. For these reasons, this proposed rule will not have a significant economic impact on a substantial number of small entities.

Executive Orders

This proposed rule has been determined to be not significant for purposes of Executive Order 12866. It has been determined that this proposed rule does not contain policies with federalism implications as that term is defined under Executive Order 13132.

Paperwork Reduction Act

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a current and valid Office of Management and Budget (OMB) control number. This proposed rule contains a collection-of-information subject to the requirements of the PRA (44 U.S.C. 3501 et seq.) and has been approved under OMB control number 0607-0152.

List of Subjects in 15 CFR Part 30

• Economic statistics
• Exports
• Foreign trade
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, the Census Bureau is proposing to amend 15 CFR part 30 as follows:

PART 30—FOREIGN TRADE REGUALTIONS

Subpart A—General Requirements

1. The authority citation for part 30 continues to read as follows:

Authority: 5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization plan No. 5 of 1990 (3 CFR 1949-1953 Comp., p. 1004); Department of Commerce Organization Order No. 35-2A, July 22, 1987, as amended, and No. 35-2B, December 20, 1996, as amended; Pub. L. 107-228, 116 Stat. 1350.

2. Amend § 30.1(c) by:

a. Revising the definitions for “AES applicant”, “AES Direct”, and “AES downtime filing citation”;

b. Removing the definition for “AES participant application (APA)”;

c. Revising the definition for “Annotation”;

d. Adding in alphabetical order the definition for “Automated Commercial Environment (ACE)”;

e. Revising the definitions for “Automated Export System (AES)”, “Bill of lading (BL)”, and “Container”;

f. Removing the definition for “Domestic exports”;

g. Adding in alphabetical order the definition for “Domestic goods”;

h. Revising the definition for “Fatal error message”;

i. Remove the definition for “Filers” and add in its place a definition for “Filer”;

j. Removing the definition for “Foreign exports”;

k. Adding in alphabetical order the definition for “Foreign goods”;

l. Removing the definition for “Non Vessel Operating Common Carrier”;

m. Revising the definition for “Proof of filing citation”;

n. Removing the definition for “Reexport”;

o. Revising the definitions for “Service center”, “Shipment reference number”, “Split shipment”, and “Transportation reference number”; and

p. Adding in alphabetical order the definition for “Used electronics”.

The revisions and additions read as follows:

3. Amend § 30.2 by revising paragraphs (a)(1)(iv)(A) and (C), (b)(3), and (c) to read as follows:

4. Amend § 30.3 by revising the introductory text of paragraph (e)(2) and adding paragraph (e)(2)(xv) to read as follows:

5. Amend § 30.4 by revising paragraphs (b)(2)(v), (b)(3) and (c) to read as follows:

6. Amend § 30.5 by revising the section heading, removing the introductory text, removing and reserving paragraphs (a) and (b), removing paragraph (d)(3), and revising paragraph (f) to read as follows:

7. Amend § 30.6 by revising the introductory text, paragraphs (a)(1), (a)(1) and (iv), (a)(5)(i) and (ii), (a)(11), (a)(19), and (b)(14), and adding paragraphs (b)(18) and (c)(3) to read as follows:

8. Amend § 30.10 by removing paragraphs (a)(1) and (2).

9. Amend § 30.28 by revising the introductory text and paragraph (a), and removing paragraph (c) to read as follows:

10. Amend § 30.29 by revising paragraphs (a)(1) and (2) and (b)(2) to read as follows:

11. Amend § 30.36 by revising paragraph (b)(4) to read as follows:

12. Amend subpart E by revising the heading to read as follows:

Subpart E—Manifest Requirements

13. Amend § 30.45 by revising the section heading, paragraphs (a) introductory text and (a)(1), removing and reserving paragraph (a)(2); revising paragraph (b); and removing paragraphs (c) through (f); to read as follows:

14. Remove and reserve §§ 30.46 and 30.47.

15. Amend § 30.50 by revising the introductory text to read as follows:

16. Revise § 30.53 to read as follows:

17. Amend § 30.74 by revising paragraph (c)(5) to read as follows:

18. Amend Appendix B by adding in alpha-numeric order license code entries for “C60” and “C62” to Part III, under the undesignated center heading Department of Commerce, Bureau of Industry and Security (BIS) to read as follows:

Appendix B to Part 30—AES Filing Codes

Part III—License Codes

Department of Commerce, Bureau of Industry and Security (BIS), Licenses

C60 DY6—.y “600 series” items

C62 SCP—Support for the Cuban People

19. Amend Appendix D by revising the heading and entries III and IV, and removing entry XII.

The revisions read as follows:

Appendix D to Part 30—AES Filing Citation, Exemption and Exclusion Legends