Census delays AES licensing program, cracks down on Option 4 filing
U.S. Census Bureau officials say they have delayed plans to begin licensing exporters and their forwarders who file export declarations through the agency's automated system and will tighten up requirements for some post-departure filing options.
In March, the agency said it would propose rules this year to implement a license program in 2004 to ensure the quality of export data used for government trade statistics and for controlling restricted exports. But Census Bureau lawyers want the agency to get explicit legislative authority to withhold access to the Automated Export System to prevent the agency from being sued, said Jerry Greenwell, chief of regulations for the Foreign Trade Division at Census, during a presentation to the National Customs Brokers and Freight Forwarders Association of America's fall conference.
'If we denied or revoked one's license we could be sued because we'd be denying someone the right to file electronically in an environment that is the only way to do that,' Greenwell told Shippers' News Wire. Last year, Congress mandated that all shipper export declarations be filed through AES.
Greenwell said it will take about two months to rewrite the legislation that gives Census authority to compile statistics on the balance of trade, after which it must be vetted by several agencies, including the Department of Homeland Security, and be approved by Congress before a proposed rule can be issued next spring.
Greenwell estimated the licensing program probably will not get off the ground until 2005.
He said the licensing program will strengthen the confidence level in AES users and their data. 'We want to make sure people who are filing SEDs aren't coming across the border and filing from the trunk of a car,' he told the group.
Census, at the request of the Bureau of Customs and Border Protection and other agencies, is considering tightening the eligibility requirements for companies seeking to conduct post-departure entry filing under AES Option 4, according to Chuck Woods, assistant trade division chief for data collection. Census officials are negotiating with Customs new types of criteria to include in the Option 4 application to ensure that this privilege is reserved for exporters with high-volume, repetitive, low-risk shipments such as grain, lumber or auto parts, Woods said.
Changes under consideration would include requiring companies to disclose the frequency, number and types of shipments that the company exports and to show a high-level of competency using AES. As envisioned, the new standards would mean a company must average at least 10 shipments per month, provide the harmonized international code for items it exports and have an AES data error rate of 5 percent or less, Woods said.
A 95-percent compliance rate is not onerous because most companies that file through AES are accurate 98 percent of the time or better, the Census officials said.
Woods emphasized that the new criteria will not be put in place until AES becomes mandatory next year. Under legislation passed in 2002, the State Department is expected to publish a notice in the Federal Register within the next few weeks requiring authorized exporters and their agents to electronically file shipper’s export declarations for munitions, military equipment and dual-use items electronically through AES. Census is targeting April as the period when all exports must be filed through AES.
In August, Census imposed a moratorium on new Option 4 applications until the new regulations are implemented.
Census has also begun to crack down on exporters who loan out their Option 4 filing privilege to their overseas customers, Greenwell said. The agency recently discovered that some routed transactions in which the foreign consignee is controlling the movement of goods has gained access to the exporters Option 4 authorization number and submitted to a U.S. freight forwarder to file the entry under Option 4, a privilege reserved for the principal exporter and his authorized agent. The practice is designed in part to allow the consignee to gather extra time to gather information on the cargo's contents.
Woods said Census will contact U.S. freight forwarders involved in such transactions that they are must file under Option 2 pre-departure rules or else be subject to penalties from the Customs Bureau.
'We are gong to send warning letters and take Option 4 filing privileges of the company that is caught,' Greenwell said.