[Federal Register Volume 64, Number 29 (Friday, February 12, 1999)]
[Proposed Rules]
[Pages 7422-7427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3306]



[[Page 7421]]

_______________________________________________________________________

Part VIII





Department of the Treasury





_______________________________________________________________________



Customs Service



_______________________________________________________________________



19 CFR Parts 4, 101, and 192



Automated Export System (AES); Proposed Rule

  Federal Register / Vol. 64, No. 29 / Friday, February 12, 1999 / 
Proposed Rules  

[[Page 7422]]



DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 4, 101, and 192

RIN 1515-AC42


Automated Export System (AES)

AGENCY: Customs Service, Treasury.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Automated Export System (AES) is an electronic reporting 
system jointly developed by the Bureau of the Census (Census) and 
Customs that allows exporters to electronically transmit commodity 
information contained on Shipper's Export Declarations and sea carriers 
to electronically transmit outbound vessel manifest information. A 
general description of how AES works, including the application, 
qualification, and certification procedures for exporters and sea 
carriers is being proposed in a document issued by the Bureau of the 
Census in today's Federal Register. This document proposes to amend the 
Customs Regulations to cross-reference the Census proposed regulations. 
Also, this document proposes to set forth criteria under which Customs 
will determine whether to approve an exporter for the option to 
transmit commodity information through AES after a carrier has left the 
United States (post-departure). This document also sets forth the 
appeal procedures for AES exporters if Customs denies the exporter the 
post-departure option; or, if Customs approves the post-departure 
option for the AES exporter, the grounds for revocation of the use of 
the option and the appeal procedures if Customs revokes the use of that 
option.
    Exporters that utilize the AES can expect to benefit from fewer 
delays in the processing of export information by Customs due to 
missing paperwork; fewer, but faster inspections of export shipments; 
and reduced administration costs due to automation.

DATES: Comments must be received on or before April 13, 1999.

ADDRESSES: Written comments should be addressed to the U.S. Customs 
Service, Office of Regulations and Rulings, Regulations Branch, Suite 
3000, 1300 Pennsylvania Avenue, NW, Washington, D.C. 20229. Comments 
submitted may be inspected at the U.S. Customs Service, Office of 
Regulations and Rulings, Regulations Branch, Suite 3000, 1300 
Pennsylvania Avenue, NW, Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Maritza Castro, Office of Field 
Operations, Outbound Process, (703) 921-7465.

SUPPLEMENTARY INFORMATION:

Background

    On October 9, 1998, Customs and the Bureau of the Census (Census) 
published a joint notice in the Federal Register (63 FR 54438) that 
informed the public of the current status of the Automated Export 
System (AES), an electronic reporting system jointly developed by 
Census and Customs that allows exporters to transmit commodity 
information contained on Shipper's Export Declarations (SEDs), and 
carriers to transmit outbound vessel manifest information. That notice 
informed the public of developments affecting the implementation of the 
AES and announced that Census and Customs would be developing 
regulations to implement provisions and requirements for filing export 
information electronically through the AES. Since the Background 
information contained in that notice fully recounts the development of 
the AES to date, it is incorporated here by reference.

AES Requirements in General

    In a separate document published in today's Federal Register, the 
Bureau of the Census is proposing to set forth general requirements for 
the AES in the Census Regulations (chapter I of title 15 of the Code of 
Federal Regulations) at redesignated subpart E of part 30 (15 CFR part 
30). Although Customs proposes in this document to cross-reference the 
Census Regulations that will provide for the AES, a general description 
of the AES follows.

    1. Eligibility. Participation in AES is voluntary. Regarding the 
submission of SEDs, AES allows exporters, agents, and service 
companies (collectively referred to as export commodity information 
filers) that are required to report commodity export information to 
electronically file such information on all export commodities 
regardless of the mode of transportation in which the commodities 
are being exported. See, proposed Sec. 30.60(a) of the Census 
Regulations. Regarding outbound vessel manifest information, sea 
carriers will be eligible to electronically file outbound manifest 
information pursuant to the Sea Carrier's Module of AES proposed in 
this document and in the Census proposal. It is expected that 
modules will be created at a later date that will allow air carriers 
and rail carriers to electronically file outbound manifest 
information.
    2. Application. Export commodity information filers and sea 
carriers who wish to participate in AES may apply by filing a 
``Letter of Intent,'' that contains the information described in 
proposed Sec. 30.60(b) of the Census Regulations. For export 
commodity information filers, the application will provide up to 
three electronic filing options (denominated as options 2-4) for the 
submission of commodity information, in addition to the present 
method of filing paper documents (denominated as option 1):
    a. Filing Full Pre-Departure Information (Option 2). Under this 
option, all commodity information is required to be transmitted by 
the export commodity information filer before the export of the 
merchandise;
    b. Filing Partial Pre-Departure Information (Option 3). Under 
this option, only fourteen (14) identified data elements of 
commodity information are required to be transmitted by the export 
commodity information filer prior to exportation. The remaining data 
elements of commodity information are to be transmitted within five 
(5) business days of the date of exportation; or
    c. Filing with No Pre-Departure Information (Option 4). This 
option is only available to approved exporters wanting to export 
qualifying commodities without submitting any pre-departure 
information. However, complete commodity information must be 
electronically filed within ten (10) business days of exportation. 
(Note that export commodity information filers other than exporters, 
such as agents and service companies, may not apply for this filing 
option. The meaning of exporter in this context will be defined by 
Census.)
    3. Certification of AES Filers and Approval of Option 4 for 
Exporters. The AES certification procedure generally provides that, 
following the processing of the Letter of Intent to participate in 
the AES, the prospective AES filer must perform an initial two-part 
communication test so that it can be ascertained whether the 
prospective filer's electronic system is capable of communicating 
with the AES; applicants will be tested for the ability to send and 
receive messages. For applicants applying for AES filing Options 2 
or 3 or for electronic filing through the Sea Carrier's Module of 
AES, Customs and Census will make the determination of whether a 
particular export commodity information filer or sea carrier is 
qualified, and certify them to participate in AES. See, proposed 
Sec. 30.62 of the Census Regulations. Once an export commodity 
information filer is qualified and certified to use either Option 2 
or 3 as an AES participant, he may electronically file export 
commodity information without any further approval process. 
Similarly, once a sea carrier is qualified and certified to use the 
Sea Carrier's Module as an AES participant, it may electronically 
file outbound manifest information without any further approval 
process.
    For exporters applying for Option 4 (post-departure) filing 
privileges, the application will be reviewed by a panel of 
participating partnership agencies for approval. (Agencies currently 
participating include Census, Customs, Bureau of Export 
Administration, Nuclear Regulatory Commission, and the Office of 
Foreign Assets Control.)
    4. Responsibilities of participants in AES. The responsibilities 
of participants include, for export commodity information filers, 
making timely transmissions of the required export data elements, as 
proposed in Sec. 30.63 of the Census Regulations, and for sea 
carrier

[[Page 7423]]

module filers, making timely transmissions of the messages proposed 
in Sec. 4.76 of the Customs Regulations. Participants are also 
responsible, in accordance with the AES Trade Interface Requirements 
handbook, which will be posted to the Customs internet web site 
(www.customs.ustreas.gov) and will be available through the Customs 
Electronic Bulletin Board (703-921-6155), for responding to 
government-generated messages, making appropriate corrections or 
cancellations to previously transmitted information, and maintaining 
proper records concerning AES transactions. AES participants are 
subject to the same penalty provisions that apply to paper filers of 
SED and manifest information. See, proposed Sec. 30.60 of the Census 
Regulations. If employing non-AES carriers or forwarders, an AES 
export commodity information filer will be responsible for 
identifying his status as an AES participant on transportation 
documents so that Customs and the carrier know that paper SEDs are 
not required because the filing was made via AES. See, proposed 
Sec. 30.65 of the Census Regulations. AES participants will be 
required to comply with the recordkeeping requirements proposed in 
Sec. 30.66 of the Census Regulations and any other applicable 
recordkeeping requirements that AES participants are subject to 
under existing law.

Customs Denial of Requests for Option 4 Filing Status; Revocation of 
Option 4 Filing Privileges Granted

    Applicants requesting Option 4 filing status will have their 
applications reviewed by the panel of participating partnership 
agencies (identified above). (AERP participants who apply for Option 4 
privileges will receive priority handling of their application. AERP 
participants should note their status on their Letter of Intent to 
ensure priority processing. Current participating AES-PASS filers will 
be grandfathered into Option 4.) Although each agency has its own 
evaluation criteria, a rejection by any of the agencies will result in 
non-acceptance of the application for Option 4 filing status. Following 
inter-agency review of applicants' credentials, Census will notify 
applicants in writing of their approval or denial within thirty (30) 
calendar days of receipt of the application.
    Customs may deny an applicant's request for Option 4 filing status, 
based on any of 4 separate grounds. If Customs denies an applicant's 
request for Option 4 status, the applicant will receive a letter from 
Census specifying the grounds on which Customs bases its denial and 
setting forth the appeal procedures the applicant may use to challenge 
Customs decision.
    Once approved for Option 4 privileges, Customs may revoke the 
privilege, based on any of 4 separate grounds. Such participants will 
be advised in writing by Customs of the basis for the revocation and 
may file an appeal to challenge Customs decision. In these cases, the 
AES filer will be allowed to continue filing under Option 4 until the 
administrative appeal process has been exhausted. However, Customs may 
revoke a participant's Option 4 privileges immediately in cases of 
intentional violations of any Customs law or when required by national 
security.

The Sea Carrier's Module

    Since 1996, Customs has held a series of open meetings with 
representatives of the sea carrier industry to discuss methods of 
improving compliance with manifest regulations and to create electronic 
manifesting procedures that conform to the current business practices 
of the industry. As a result of these meetings, Customs is proposing to 
require sea carriers to electronically file booking information (i.e., 
cargo reservation information) before the loading and departure of the 
sea carrier as part of the AES outbound manifesting procedures.
    It is proposed that booking information be provided to Customs 
through AES as the information becomes available as far in advance as 
practical of the loading of the vessel. It is proposed that the booking 
information be provided not later than seventy-two (72) hours prior to 
departure of the vessel and that booking information received by the 
carrier later in time, i.e., within seventy-two (72) hours of a 
vessel's departure, will be transmitted immediately as it becomes 
available. Customs will use this advanced booking information to screen 
shipments for enforcement targeting.
    It is also proposed that when an AES sea carrier receives the 
actual freight, it will notify Customs via AES by transmitting a 
``Receipt of booking'' message. Customs will then notify the AES 
carrier if Customs will examine the booked cargo before the cargo is to 
be loaded on the vessel. If the booked cargo is scheduled by Customs 
for examination, then the carrier will not load the cargo until Customs 
examines and releases the cargo. Not later than one day after a vessel 
departs, an AES carrier will notify Customs of the date and time of the 
departure of the vessel (``Departure'' message).
    Sea carriers will normally have ten (10) business days after the 
departure of the vessel to electronically file outbound vessel manifest 
information (``Manifest'' message), except as otherwise provided for in 
Secs. 4.75 and 4.84 of the Customs Regulations. Even though a sea 
carrier files an electronic manifest, if paper SEDs are submitted by 
filers of the export commodity information, participant sea carriers 
will be responsible for submitting those SEDs to Customs within four 
(4) business days after departure of the vessel, unless another time 
frame is specified in Secs. 4.75 or 4.84 of the Customs Regulations. 
Upon written agreement with participant sea carriers, Customs and 
Census can provide for an alternative to the location filing 
requirement for paper SEDs set forth in Sec. 4.75(b).
    Filing outbound vessel manifest information electronically through 
AES will be treated by Customs as meeting the outward cargo declaration 
filing requirements (CF 1302-A) required by Secs. 4.63 and 4.75 of the 
Customs Regulations, if the procedures set forth in the AES Trade 
Interface Requirements handbook are followed.

Proposed Amendments Concerning AES, Customs Administrative 
Procedures for Option 4 Privileges, and the Sea Carrier's 
Transportation Module

    In this document Customs is proposing to create a new Sec. 4.76 
describing the Sea Carrier's module of AES which cross-references the 
proposed Census Regulations on AES; and a new subpart 192 which 
generally describes AES, cross-references the proposed Census 
Regulations on AES, sets forth criteria under which Customs will 
determine whether to approve an exporter for the AES option to transmit 
commodity information after a carrier has left the United States (post-
departure), sets forth appeal procedures for AES exporters if Customs 
denies the exporter the post-departure option, or, if Customs approves 
the post-departure option for the AES exporter, the grounds for 
revocation of the use of the option and the appeal procedures if 
Customs revokes the use of the option. Customs is also proposing to 
revise the authority citation for part 192 to more clearly show the 
statutory basis of Customs authority to collect and examine manifest 
and export data information.
    Customs is also using this document as the vehicle to propose an 
amendment to the general provisions of Part 101 of the Customs 
Regulations to include a definition of the term ``business days.'' 
While the term ``business days'' is used in this document in reference 
to filing times for sea carriers, the definition is proposed to have 
applicability wherever the term is used throughout the Customs 
Regulations (19 CFR).
    A more detailed description of the proposed regulatory changes 
follow:

[[Page 7424]]

Proposed Sec. 4.76

    Proposed Sec. 4.76 is entitled ``Procedures and responsibilities of 
carriers filing outbound vessel manifest information via the AES.'' 
This section will provide that the Sea Carrier's Module of the AES 
allows sea carriers to submit required outbound vessel manifest data 
electronically. This section will cross-reference proposed subpart E of 
the Census Regulations (15 CFR Subpart E). Section 4.76 sets forth the 
types of messages sea carriers on the module will be required to 
transmit and the time frames for their transmission. Sea carriers 
certified to use the module and adhering to the procedures concerning 
the electronic submission of outbound vessel manifest information will 
meet the outward cargo declaration filing requirements (CF 1302-A) of 
Secs. 4.63 and 4.75 of the Customs Regulations (19 CFR 4.63 and 4.75), 
except as otherwise provided in Secs. 4.75 and 4.84, if the procedures 
set forth in the AES Trade Interface Requirements handbook are 
followed.

Revision of Sec. 101.1

    Section Sec. 101.1 will be amended to define the term ``business 
days'' to mean the normal days of a work week: Monday through Friday, 
excluding national holidays as specified in Sec. 101.6(a).

Revision of Sec. 192.0

    Section Sec. 192.0 will be revised to account for the addition of a 
new Subpart B entitled ``The Automated Export System (AES).''

Proposed Sec. 192.11

    Proposed Sec. 192.11, entitled ``Description of the AES'', will 
describe, in general terms, the nature of the electronic filing system 
as an alternate method for exporters to comply with the export 
reporting requirements, and cross-reference proposed subpart E of the 
Census Regulations (15 CFR subpart E) as providing more fully for the 
AES.

Proposed Sec. 192.12

    Proposed Sec. 192.12, entitled ``Criteria for denial of 
applications requesting AES post-departure (Option 4) filing status; 
appeal procedures'', will state the four (4) grounds on which Customs 
will base its denial of an applicant's request for this status, and 
provide the appeal process by which an applicant may challenge Customs 
decision. The four (4) grounds for rejection will be that the 
applicant:
    1. Is not an exporter, as defined in the Census Regulations;
    2. Has a history of non-compliance with export regulations. For 
example, the exporter has a history of late electronic submissions of 
commodity information or a record of non-submission of required export 
documentation;
    3. Has been indicted, convicted or is currently under an 
investigation, wherein Customs has developed probable cause, for a 
felony involving any Customs law or any export law administered by 
another government agency; or
    4. Has made or caused to be made in the ``Letter of Intent'' a 
false or misleading statement or omission with respect to any material 
fact.
    Applicants denied Option 4 status by Customs will have the 
opportunity to appeal the decision by following the appeal procedure 
provided at proposed Sec. 192.13(b). Applicants will be notified of the 
status of their appeal within thirty (30) calendar days of receipt by 
Customs, or, if a decision cannot be reached at that time, the 
applicant will be notified of an expected date for the final decision 
as soon as possible after the 30 calendar days. Applicants that are not 
approved by Customs may reapply after one year from the date of the 
final decision.

Proposed Sec. 192.13

    Proposed Sec. 192.13, entitled ``Revocation of AES participants' 
post-departure (Option 4) filing privileges; appeal procedures'', will 
state the 4 grounds on which Customs may revoke a participant's Option 
4 privileges, and provide the appeal process by which applicants may 
challenge Customs decision. The 4 reasons for revocation will be that 
the filer:
    1. Has made or caused to be made in the ``Letter of Intent'' a 
false or misleading statement or omission with respect to any material 
fact;
    2. Is indicted, convicted or is currently under an investigation, 
wherein Customs has developed probable cause, for a felony involving 
any Customs law or any export law administered by another government 
agency;
    3. Fails to substantially comply with export regulations. For 
example, the filer develops a history of late submissions of Option 4 
commodity information or develops a history of non-compliance with 
other agencies' licensing regulations; or
    4. Poses a significant threat to national security, such that his 
continued participation in Option 4 should be terminated.
    Participants issued a revocation notice will have the opportunity 
to appeal the decision by contacting Customs at the address indicated 
within thirty (30) calendar days of receipt of notification. Applicants 
will be notified of the status of their appeal within thirty (30) 
calendar days of receipt by Customs, or if a decision cannot be reached 
at that time, the applicant will be notified of an expected date for 
the final decision as soon as possible after the 30 calendar days. 
Except as stated below, final revocation of Option 4 privileges will 
not take effect until all appeal procedures have been exhausted or 
until 30 calendar days after written notification of revocation, if no 
appeal is made. This will give the participant time to take corrective 
actions and include these actions as part of the appeal. However, 
Customs reserves the right to make the revocation effective immediately 
in cases of intentional violations of any Customs law on the part of 
the program participant or when required by national security. In such 
a case, the participant will be notified in writing and may appeal the 
decision, but will not be able to continue to file under Option 4 
during the appeal process. The participants will be notified in writing 
of any revocation decision. Participants who have had their Option 4 
privileges revoked, may still use the other two options for AES 
transmissions.

Comments

    Before adopting this proposal as a final rule, consideration will 
be given to any written comments timely submitted to Customs. Comments 
submitted will be available for public inspection in accordance with 
the Freedom of Information Act (5 U.S.C. 552), Sec. 1.4 of the Treasury 
Department Regulations (31 CFR 1.4), and Sec. 103.11(b) of the Customs 
Regulations (19 CFR 103.11(b)), on regular business days between the 
hours of 9 a.m. and 4:30 p.m. at the Regulations Branch, Office of 
Regulations and Rulings, U.S. Customs Service, the Ronald Reagan 
Building, 1300 Pennsylvania St., N.W., Suite 3000, Washington, D.C.

Inapplicability of the Regulatory Flexibility Act, and Executive 
Order 12866

    Pursuant to provisions of the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.), it is certified that, if adopted, the proposed amendments 
will not have a significant economic impact on a substantial number of 
small entities, because booking information is already collected in the 
ordinary course of business by sea carriers and the cost of 
transmitting the information electronically to Customs through AES, 
even if the carrier is not a certified AES participant, is not 
substantial.

[[Page 7425]]

Accordingly, the proposed amendments are not subject to the regulatory 
analysis or other requirements of 5 U.S.C. 603 and 604. Customs does 
request comments specifically concerning the economic impact of 
transmitting booking information on small carriers. This amendment does 
not meet the criteria for a ``significant regulatory action'' as 
specified in Executive Order 12866.

Paperwork Reduction Act

    The collection of information contained in this notice of proposed 
rulemaking has been submitted to the Office of Management and Budget 
(OMB) for review in accordance with the Paperwork Reduction Act of 1995 
(44 U.S.C. 3507). Comments on the collection of information should be 
sent to the OMB, Attention: Desk Officer of the Department of the 
Treasury, Office of Information and Regulatory Affairs, Washington, 
D.C. 20503. A copy should also be sent to Customs at the address set 
forth previously. Comments should be submitted within the time frame 
that comments are due regarding the substance of the proposal.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless the collection of 
information displays a valid control number.
    The collection of information in these proposed regulations is at 
Sec. 4.76, which provides for the transmission of booking information 
through the Sea Carrier's Module in the AES. Departure and manifest 
information is already approved under OMB control numbers: 1515-0062 
for the General Declaration (Vessel Clearance) and 1515-0078 for the 
Cargo Declaration and the Cargo Declaration Outward with Commercial 
Forms. The paperwork burden for the application procedure for the Sea 
Carrier's Module is covered by the Census paperwork submission for 
proposed 15 CFR 30.60.
    The booking information to be collected is necessary so that 
Customs can more effectively target high-risk shipments. The likely 
respondents are sea carriers that are required to submit outbound 
vessel manifest data.
    The data which follows is presented in a range format. Depending on 
the size of the shipping company, the numbers reflecting the frequency 
of responses and the time associated with transmissions will vary:
    Estimated total annual reporting and/or recordkeeping burden: 
1,800-2,225 hours.
    Estimated average annual burden per respondent/recordkeeper: 1-72 
hours.
    Estimated number of respondents and/or recordkeepers: 120-200.
    Estimated annual frequency of responses: 6,500,000-8,000,000.
Comments are invited on:
    a. Whether the collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information shall have practical utility;
    b. The accuracy of the agency's estimate of the burden of the 
collection of information;
    c. Ways to enhance the quality, utility, and clarity of the 
information to be collected;
    d. Ways to minimize the burden of the collection of information on 
respondents, including through the use of automated collection 
techniques or other forms of information technology; and
    e. Estimates of capital or startup costs and costs of operations, 
maintenance, and purchase of services to provide information.

Drafting Information

    The principal author of this document was Gregory R. Vilders, 
Attorney, Regulations Branch. However, personnel from other offices 
participated in its development.

List of Subjects

19 CFR Part 4

    Cargo vessels, Common carriers, Customs duties and inspection, 
Declarations, Exports, Foreign commerce and trade statistics, Freight, 
Inspection, Maritime carriers, Merchandise, Reporting and recordkeeping 
requirements, Shipping, Vessels.

19 CFR Part 101

    Customs duties and inspection, Customs ports of entry, Exports, 
Foreign trade statistics, Harbors, Imports, Organization and functions 
(Government agencies), Reporting and recordkeeping requirements, 
Shipments, Vessels.

19 CFR Part 192

    Customs duties and inspection, Electronic filing, Export control, 
Reporting and recordkeeping requirements, Vessels.

Amendments to the Regulations

    For the reasons stated above, it is proposed to amend parts 4, 101, 
and 192 of the Customs Regulations (19 CFR parts 4, 101, and 192), as 
set forth below:

PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES

    1. The general authority citation for part 4 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624; 
46 U.S.C.App. 3, 91.
* * * * *
    2. A new Sec. 4.76 is added to read as follows:


Sec. 4.76  Procedures and responsibilities of carriers filing outbound 
vessel manifest information via the AES.

    (a) The sea carrier's module. The Sea Carrier's Module is a 
component of the Automated Export System (AES) (see, part 192, subpart 
B of this chapter) that allows for the filing of outbound vessel 
manifest information electronically (see, 15 CFR part 30). All sea 
carriers are eligible to apply for participation in the Sea Carrier's 
Module. Application and certification procedures for AES are found at 
15 CFR 30.60. A sea carrier certified to use the module that adheres to 
the procedures set forth in this section and the Census Regulations (15 
CFR part 30) concerning the electronic submission of an outbound vessel 
manifest information meets the outward cargo declaration filing 
requirements (CF 1302-A) of Secs. 4.63 and 4.75 of this part, except as 
otherwise provided in Secs. 4.75 and 4.84, and if procedures set forth 
in the AES Trade Interface Requirements handbook (see Customs internet 
website (www.customs.ustreas.gov)) are followed.
    (b) Responsibilities. Carriers and their agents are responsible for 
reporting accurate and timely information and for responding to all 
notifications concerning the status of their transmissions and the 
detention and release of freight in accordance with the procedures set 
forth in the AES Trade Interface Requirements handbook. Customs will 
send messages to participant carriers regarding the accuracy of their 
transmissions. AES participants are required to comply with the 
recordkeeping requirements contained at Sec. 30.66 of the Census 
Regulations (15 CFR 30.66) and any other applicable recordkeeping 
requirements. Where paper SEDs have been submitted by exporters, 
participant carriers will be responsible for submitting those SEDs to 
Customs within four (4) business days after the departure of the 
vessel, unless a different time requirement is specified by Secs. 4.75 
or 4.84 of this part. Upon written agreement with participant sea 
carriers, Customs and Census can provide for an alternative to the 
location filing requirement for paper SEDs set

[[Page 7426]]

forth in Sec. 4.75(b) by which the participant carriers are otherwise 
bound.
    (c) Messages required to be filed within the sea carrier's module. 
Participant carriers will be responsible for transmitting and 
responding to the following messages:
    (1) Booking. Booking information identifies all the freight that is 
scheduled for export. Booking information will be transmitted to 
Customs via AES for each shipment as far in advance of departure as 
practical, but no later than seventy-two hours prior to departure for 
all information available at that time. Bookings received within 
seventy-two hours of departure will be transmitted to Customs via AES 
as received;
    (2) Receipt of booking. When the carrier receives the cargo or 
portion of the cargo that was booked, the carrier will inform Customs 
so that Customs can determine if an examination of the cargo is 
necessary. Customs will notify the carrier of shipments designated for 
examination. Customs will also notify the carrier when the shipment 
designated for inspection is released and may be loaded on the vessel;
    (3) Departure. No later than the first business day following the 
actual departure of the vessel, the carrier will notify Customs of the 
date and time of departure; and
    (4) Manifest. Within ten (10) business days after the departure of 
the vessel, the carrier will submit the manifest information to Customs 
via AES for each booking loaded on the departed vessel. However, if the 
destination of the vessel is a foreign port listed in Sec. 4.75(c), the 
carrier must transmit complete manifest information before vessel 
departure. Time requirements for transmission of complete manifest 
information for carriers destined to Puerto Rico and U.S. possessions 
are the same as the requirement for the submission of the complete 
manifest as found in Sec. 4.84.
    (d) All penalties and liquidated damages that apply to the 
submission of paper manifests (see, applicable provisions in part 4 of 
this chapter) apply to the electronic submission of outbound vessel 
manifest information through the Sea Carrier's Module.

PART 101--GENERAL PROVISIONS

    1. The general authority citation for part 101 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 20, 
Harmonized Tariff Schedule of the United States), 1623, 1624, 1646a.
* * * * *
    2. In Sec. 101.1, add, in appropriate alphabetical order, the 
definition of ``business day'':


Sec. 101.1  Definitions.

* * * * *
    Business day. A ``business day'' means a weekday (Monday through 
Friday), excluding national holidays as specified in Sec. 101.6(a) of 
this part.
* * * * *

PART 192--EXPORT CONTROL

    1. The authority citation for part 192 is revised to read as 
follows:

    Authority: 19 U.S.C. 66, 1624, 1646c.
    Subpart A also issued under 19 U.S.C. 1627a, 1646a;
    Subpart B also issued under 13 U.S.C. 303; 46 U.S.C. App. 91.

    2. In Sec. 192.0, a third sentence is added to read as follows:


Sec. 192.0  Scope.

    * * * This part also makes provision for the Automated Export 
System (AES), implemented by the Census Regulations at Subpart E (15 
CFR Subpart E), and provides the grounds under which Customs, as one of 
the reviewing agencies of the government's export partnership, may deny 
an application for post-departure filing status or revoke a 
participant's privilege to use such filing option, and provides for the 
appeal procedures to challenge such action by Customs.
    3. A new subpart B, consisting of Secs. 192.11 through 192.13, is 
added to read as follows:

Subpart B--Filing of Export Information Through the Automated Export 
System (AES)

Sec.
192.11  Description of the AES.
192.12  Criteria for denial of applications requesting AES post-
departure (Option 4) filing status; appeal procedures.
192.13  Revocation of participant's AES post-departure (Option 4) 
filing privileges; appeal procedures.

Subpart B--Filing of Export Information Through the Automated 
Export System (AES)


Sec. 192.11  Description of the AES.

    AES is a voluntary program that allows all exporters required to 
report commodity export information (see, 15 CFR 30.16) to submit such 
information electronically, rather than on paper, and sea carriers to 
report required outbound vessel information electronically (see, 
Secs. 4.63, 4.75, and 4.76 of this chapter). Eligibility and 
application procedures are found at subpart E of part 30 of the Census 
Regulations (15 CFR subpart E), denominated Electronic Filing 
Requirements--Exporters. These Census Regulations provide that 
exporters may choose to submit export information through AES by any 
one of three electronic filing options available. Only Option 4, the 
complete post-departure submission of export information, requires 
prior approval by participating agencies before it can be used by AES 
participants.


Sec. 192.12  Criteria for denial of applications requesting AES post-
departure (Option 4) filing status; appeal procedure.

    (a) Approval process. Applications for the option of filing export 
commodity information electronically through AES after the vessel has 
departed (Option 4 filing status) must be unanimously approved by 
Customs, Census and other participating government agencies. 
Disapproval by one of the participating agencies will cause rejection 
of the application.
    (b) Grounds for Denial. Customs may deny a participant's 
application for any of the following reasons:
    (1) The applicant is not an exporter, as defined in the Census 
Regulations (15 CFR 30.7(d));
    (2) The applicant has a history of non-compliance with export 
regulations (e.g., exporter has a history of late electronic submission 
of commodity records or a record of non-submission of required export 
documentation);
    (3) The applicant has been indicted, convicted, or is currently 
under an investigation, wherein Customs has developed probable cause, 
for a felony involving any Customs law or any export law administered 
by another government agency; or
    (4) The applicant has made or caused to be made in the ``Letter of 
Intent,'' a false or misleading statement or omission with respect to 
any material fact.
    (c) Notice of denial; appeal procedures. Applicants will be 
notified of approval or denial in writing by Census. (Applicants whose 
applications are denied by other agencies must contact those agencies 
for their specific appeal procedures.) Applicants whose applications 
are denied by Customs will be provided with the specific reason(s) for 
non-selection. Applicants may challenge Customs decision by following 
the appeal procedure provided at Sec. 192.13(b) of this part.


Sec. 192.13  Revocation of participants' AES post-departure (Option 4) 
filing privileges; appeal procedures.

    (a) Reasons for revocation. Customs may revoke Option 4 privileges 
of participants for the following reasons:
    (1) The exporter has made or caused to be made in the ``Letter of 
Intent,'' a

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false or misleading statement or omission with respect to any material 
fact;
    (2) The exporter submitting the ``Letter of Intent'' is indicted, 
convicted, or is currently under an investigation, wherein Customs has 
developed probable cause, for a felony involving any Customs law or any 
export law administered by another government agency;
    (3) The exporter fails to substantially comply with export 
regulations; or
    (4) Continued participation in AES as an Option 4 filer would pose 
a threat to national security, such that his continued participation in 
Option 4 should be terminated.
    (b) Notice of revocation; appeal procedures. When Customs has 
decided to revoke a participant's Option 4 filing privileges, the 
participant will be notified in writing of the reason(s) for the 
decision. The participant may challenge Customs decision by filing an 
appeal within thirty (30) calendar days of receipt of the notice of 
decision. Except as stated below, the revocation shall become effective 
when the participant has either exhausted all appeal proceedings or 
thirty (30) calendar days after receipt of the notice of revocation if 
no appeal is filed. However, in cases of intentional violations of any 
Customs law on the part of the program participant or when required by 
the national security, revocations will become effective immediately 
upon notification. Appeals should be addressed to the National Outbound 
Process Owner, U.S. Customs, Ronald Reagan Building, 1300 Pennsylvania 
Ave, NW, Room 5.4c, Washington D.C. 20229. Customs will issue a written 
decision or notice of extension to the participant within thirty (30) 
calendar days of receipt of the appeal. If a notice of extension is 
forwarded, the applicant will be provided with the reason(s) for 
extension of this time period and an expected date of decision. 
Participants who have had their Option 4 filing privileges revoked and 
applicants not selected to participate in AES, may not reapply for this 
filing status for one year following written notification of rejection 
or revocation.
Raymond W. Kelly,
Commissioner of Customs.

    Approved: December 9, 1998.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 99-3306 Filed 2-11-99; 8:45 am]
BILLING CODE 4820-02-P