DHS demands threaten AES mandatory rules

DHS demands threaten AES mandatory rules    U.S. Census Bureau officials warned exporters and freight forwarders at a meeting in Southern California this week that the Department of Homeland Security has made “11th hour” regulatory requests that could derail the implementation of long-awaited rules for mandatory electronic filing of export information.
   Census officials met with staff from DHS and Customs and Border Protection last week in Washington to discuss several concerns with the mandatory Automated Export System (AES) filing rules. During that meeting, DHS and CBP officials told Census they would not approve the regulations unless two significant changes were made.
   First, DHS and CBP want Census to either eliminate post-departure filing in AES or substantially increase the requirements for accepting new companies in the program. DHS and CBP also do not want existing post-departure filers simply grandfathered into the mandatory program.
   Secondly, DHS asked the bureau to make a “National Interest Determination” (NID) to allow sharing of confidential export information with foreign governments. CBP wants Census to give it a “blanket” NID to permit sharing of confidential export information with other federal agencies.
   Census officials briefed industry representatives of the Trade Support Network at Manhattan Beach, Calif. Feb. 27-28.
   Post-departure filing in AES, also known as “Option 4,” allows certain approved exporters and forwarders to process export declarations 10 calendar days after departure of goods.
   About 2,300 exporters were allowed to maintain their Option 4 filing status on AES before Census placed a moratorium on program applications in August 2003. Census had planned to reopen the enrollment in Option 4 after the mandatory AES rules are implemented. This time, however, forwarders would not be allowed to apply for post-departure filing privileges on behalf of their export clients. Exporters must apply to Census.
   Census officials emphasized that post-departure filing requirements in the final rule are in line with the response to comments CBP provided in its 2002 Trade Act regulations issued in December 2005. Census officials also said any significant changes in the AES post-departure filing program would likely require the release of a Federal Register notice seeking comments from the industry.
   Census is deeply disturbed by DHS's and CBP’s request to release confidential export data to foreign governments and other federal agencies. The confidentiality of export data is protected under Title 13 of the United States Code.
   Census officials believe either change to the regulations would “undermine public confidence” in its pledge to safeguard information provided to it by businesses and individuals. The Census Bureau collects export information from industry to generate the nation’s trade statistics.
   Many large industry groups, such as the National Association of Manufacturers, oppose sharing company-specific information with overseas governments because it could end up in the hands of competitors.
   With the recent approvals made through the inter-agency process, Census had planned to publish the AES mandatory filing rules in March. Census is awaiting additional comments on post-departure filing from CBP and the data-sharing issue from DHS.