Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



AES Filing Becomes Mandatory

The mandatory filing of U.S. export documentation through an electronic system called the Automated Export System (AES) will finally become mandatory. About three years ago, the Bureau of Census proposed mandatory AES filing. However, the proposal got caught up in a dispute between Census and Customs over whether or not the data would remain confidential. As Customs has demanded more pre-shipment data, other countries want the same from the U.S. However, Census stood its ground to enforce the non-disclosure provisions of 13 U.S.C. 301(g). In the end, Customs decided to seek a legislative solution and so mandatory AES filing will proceed.

 

Exporters got caught between Census and Customs because the 2002 enabling regulations, the Foreign Relations Authorization Act, requires the concurrence of State and Homeland Security before the regulations for mandatory AES filing may be published. Customs is part of Homeland Security and so DHS refused to concur for a long period of time. Now, the parties have agreed to disagree but allow mandatory AES to move forward.

 

While much in the regulations seems quite routine, exporters are reminded that penalties may be imposed for violations. Census has delegated enforcement to Customs and Border Protection/Immigration and Customs Enforcement and the Bureau of Industry and Security's Office of Export Enforcement. However, Census has also provided for voluntary self-disclosures. The filing of a disclosure is, like with BIS and State, a mitigating factor. A disclosure is considered valid if the information is provided prior to the time Census or any other agency learns about it from another source and commences an investigation or inquiry. This definition is generally the same as that employed in the State and BIS regulations. Customs, on the other hand, has a provision in its prior disclosure regulations which allows the benefit provided the information is given to the agency before the importer knows there is an investigation pending. So, it is entirely possible an exporter could learn there was an error in his AES reporting and file a voluntary self-disclosure, only to have its details serve to enhance the investigation already underway but unknown to him! Beware!

 

For goods subject to the International Traffic in Arms Regulations, State's filing deadline governs. For all other shipments, the deadline to file is determined by mode of transportation: 1) vessel - 24 hours prior to loading; 2) air - no later than two hours prior to scheduled departure; 3) truck - one hour prior to arrival at the border; 4) rail - no later than two hours prior to arrival at the border; 5) mail and cargo, except pipeline exports, two hours prior to export; 6) pipeline exports - within 4 days following the end of each calendar month; and 7) post departure filing - no later than 10 days from the date of export.

 

Agents (forwarders and consolidators) must make sure to have either a power of attorney or written authorization and sample forms are provided in the proposal. The responsibilities of the U.S. principal party in interest, the foreign principal party in interest in a routed transaction and the duties of agents are defined in some detail. There is also a section on record keeping that explains what each party is expected to retain and carries a 5 years from date of export timeline with it.

 

For a copy of the proposed regulations, see http://federalregister.gov/OFRUpload/OFRData/2008-12133_PI.pdf. They will take effect on July 2 but will be implemented on September 30, 2008.

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