Census Plans to Meet with CBP on Revised Proposal for AES Option 4
At a September 13, 2011 BIS Committee meeting1, a Census Bureau official discussed the agency's efforts to revise its regulatory proposal for AES Option 4 (aka post-departure filing) and that it expects to be ready to discuss its revised proposal (which is still under development) with CBP officials within the next few weeks.
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(In January 2011, Census published a proposed rule to amend Automated Export System reporting requirements, including a controversial proposal to revamp the AES post-departure filing process. Census has proposed (i) changing the post departure filing timeframe to 5 calendar days after departure (from the current 10 calendar days after departure), (ii) limiting post departure filing to certain listed agriculture and bulk commodities (rather than the current method of approving post departure filing based on the company), and (iii) tightening criteria levels.)
Limiting Post-Departure Filing to Certain Ag and Bulk Commodities "Off Table"
Based on feedback from the trade community, Census is developing a revised proposal on post-departure filing. The Census source noted that Census is no longer considering limiting post-departure filing to specified agriculture and bulk commodities as it had proposed in January 2011.
(Census has recently discussed the trade's opposition to its January 2011 proposal to limit post-departure filing to certain listed agriculture and bulk commodities and noted that one of the possible changes under consideration was the use of a "negative list” of commodities (i.e., a list of commodities for which post-departure filing would be prohibited). See ITT’s Online Archives or 08/08/11 news, 11080815, for BP summary on Census’ discussion of this topic at BIS’ 201 Annual Update conference.)
Working on Stronger Eligibility Criteria
The Census official also noted that it is working on a stronger list of criteria for participating in post-departure filing (possibly considering a company's compliance record, its history of cooperating with the export agencies, etc.), but does not yet know if its proposed changes to January 2011 proposal will be acceptable to U.S. Customs and Border Protection.
(Due to CBP concerns that the criteria for post-departure filing was not strong enough, in 2003 a moratorium was placed on acceptance of new letters of intent (LOI) to participate in post-departure filing. As a result, since August 2003, post-departure filing has been limited to previously-approved USPPIs.)
Reapplication Likely to be Required
According to the Census official, it is likely that all those interested in filing in AES post-departure would have to submit an application and meet the new stronger criteria (when established), including those USPPIs that are currently approved for post-departure filing.
Application Process Would Allow for Agency Vetting
Census would be responsible for receiving the post-departure applications online and will have to establish an application process that allows other agencies (such as CBP) enough time to thoroughly vet the companies that are applying.
Not Sure if Need to Issue a New Proposed Rule
Census notes that a decision on whether it will need to issue a new proposed rule (instead of finalizing the January 2011 proposed rule) has not yet been made.
Industry Looking for Guidance Now
During the meeting, some RPTAC members expressed concern about the lack of visibility into the future plans for post-departure filing. A couple of members noted that they are in the process of redesigning their export systems to reflect a possible loss of post-departure filing status. They note that they would like to know sooner rather than later if Census revises its criteria, so they wouldn’t have to redesign their systems twice.
1The Bureau of Industry and Security’s Regulations and Procedures Technical Advisory Committee.
(See ITT’s Online Archives or 03/04/11 news, 11030426, for BP summary listing all nine parts of the summary of Census’ January 21, 2011 proposed rule.
See ITT’s Online Archives or 04/12/11 news, 11041229, for BP summary on the possibility of Census revising its AES proposed rule due to trade opposition.
See ITT’s Online Archives or 06/15/11 news, 11061525, for BP summary of the discussion of post-departure filing at the June 2011 RPTAC meeting.)