Census Has Option 4 “Negative List,” Other Changes for AES Draft Final Rule

At the Bureau of Industry and Security’s Regulations and Procedures Technical Advisory Committee (RPTAC) meeting on March 6, a Census Bureau official updated attendees on the status of its draft final rule to revise the Automated Export System regulations, including post-departure filing requirements (referred to as Option 4), the steps that must be taken before the final rule is issued, and an informed compliance period once it is published.

On January 21, 2011, Census issued a proposed rule that would, among other things, modify the AES post-departure filing program (Option 4) by: (1) changing the timeframe to 5 calendar days after departure (from the current 10 calendar days after departure); (2) limiting post-departure filing to a “positive” list of certain agriculture and bulk commodities (rather than the current method of approving post-departure filing based on the company) and (3) tightening criteria levels, including requiring current U.S. Principal Parties in Interest (USPPIs) previously approved to file post-departure to reapply to the program. See ITT’s Online Archives 11030426 for nine-part summary of Census’ proposed rule.

Draft AES Final Rule in Legal Review, then Goes to CBP for Concurrence

Census states that its draft AES final rule is under review by the legal staff within the Department of Commerce. After that review has been completed, Census will provide U.S. Customs and Border Protection with the final rule for concurrence. According to Census, CBP has already been provided with an advance copy.

The Census official added that he believes that there will be some work ahead with CBP in order for the draft final rule to proceed beyond the concurrence process.

Current Version of Draft Final Rule Contains “Negative List” for Option 4

Sources at Census confirm that, as the draft final rule currently stands, the proposed requirement of a “positive” list of certain agriculture and bulk commodities approved for post-departure has been removed and replaced with a “negative” list of commodities for which post-departure filing would be prohibited.

Many of the comments Census received after publication of its proposed rule questioned the proposal to limit post-departure filing to a “positive list” of agriculture and bulk commodities. See ITT’s Online Archives 11041229, 11061525, and 11080815 for summary of Census’ discussions on revising the proposed rule, including a possible shift to a “negative list”. See ITT’s Online Archives 11091405 for summary of Census stating that the “positive list” was off the table.

No Decision Yet on Post-Departure Filing for License Exceptions

While Census and BIS staid exporters would no longer be able to file post-departure for items that require a BIS license, they also said it's “still in play” whether exporters would be able to file post-departure for items exported under license exceptions.

A BIS official stated that Validated End User Authorization (VEU) is technically a license, not a license exception, and therefore would require pre-departure filing as the draft final rule currently stands.

Informed Compliance Period to Follow Publication of Final Rule

According to Census, there will be a period of informed compliance after issuance of the final rule. Census is not sure how long that period will be, but is currently considering a period of 6-12 months.