[Federal Register Volume 75, Number 34 (Monday, February 22, 2010)]
[Rules and Regulations]
[Pages 7546-7548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3365]


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DEPARTMENT OF COMMERCE

Census Bureau

15 CFR Part 30

[Docket Number: 090422707-91445-02]
RIN 0607-AA48


Foreign Trade Regulations (FTR): Eliminate the Social Security 
Number (SSN) as an Identification Number in the Automated Export System 
(AES)

AGENCY: Bureau of the Census, Commerce Department.

ACTION: Final rule.

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SUMMARY: The U.S. Census Bureau (Census Bureau) issues this final rule 
amending the Foreign Trade Regulations (FTR) to eliminate the 
requirement to report a Social Security Number (SSN) as an 
identification number when registering to file and filing electronic 
export information in the Automated Export System (AES) or AESDirect. 
If the U.S. Principal Party in Interest (USPPI) or the U.S. authorized 
agent residing in or having an office in the United States does not 
have an Employer Identification Number (EIN), the USPPI or the U.S. 
authorized agent must obtain an EIN through the Web site of the 
Internal Revenue Service (IRS). Former SSN filers who want to use a Dun 
& Bradstreet Number (DUNS) rather than an EIN for identification 
purposes, must first obtain an EIN from the IRS, and apply to Dun & 
Bradstreet for a DUNS. This final rule is being implemented to ensure 
that a USPPI's or authorized agent's SSN is protected in accordance 
with the Privacy Act of 1974 (Privacy Act), title 5, United States Code 
(U.S.C.), section 552a. On August 5, 2009, this final rule was 
published as an interim final rule; the Census Bureau is finalizing 
this rule without change.

DATES: Effective Date: This rule is effective March 24, 2010.

FOR FURTHER INFORMATION CONTACT: William G. Bostic, Jr., Assistant 
Director for Economic Programs, United States Census Bureau, 4600 
Silver Hill Road, Room 8K108, Washington, DC 20233-6700; by phone at 
(301) 763-8842; by fax at (301) 763-6638; or by e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Census Bureau is responsible for collecting, compiling, and 
publishing export and import trade statistics for the United States 
under the provisions of title 13, U.S.C. Chapter 9, section 301(a). On 
June 2, 2008, the Census Bureau issued a final rule to amend the FTR to 
implement provisions in the Foreign Relations Authorization Act (Pub. 
L. 107-228, Sec.  1404(a)-(c), 116 Stat. 1454 (2002)). Specifically, 
the amended FTR required mandatory filing of export information through 
the AES or AESDirect for all shipments where a Shipper's Export 
Declaration (SED) is required. The USPPI or U.S. authorized agent 
residing or having an office in the United States was required to enter 
an EIN, SSN or DUNS when reporting export transactions in the AES or 
AESDirect. Though the effective date of this final rule was July 2, 
2008, the Census Bureau announced that it would delay implementation 
until September 30, 2008, to allow all affected entities sufficient 
time to come into compliance with the final rule.
    Pursuant to the requirements of the Privacy Act and guidance from 
the Office of Management and Budget (OMB), on August 5, 2009, the 
Census Bureau published in the Federal

[[Page 7547]]

Register an interim final rule with request for comments. The interim 
final rule amended the FTR to eliminate the requirement to report an 
SSN as an identification number when registering to file and when 
filing electronic export information in the AES or AESDirect.
    Upon implementation of this final rule, the AES will no longer 
provide the option for using the SSN as an identification number. All 
USPPI and U.S. authorized agents who currently report an SSN when 
filing in the AES, because they do not have or use an EIN or DUNS, must 
provide an EIN or DUNS for identification purposes. EINs are available 
to both businesses and individuals free of charge, and can be obtained 
by registering with the IRS at http://www.irs.gov or by calling (800) 
829-4933 and following the instructions. A DUNS is available only to 
business entities with EINs and is available for a fee at Dun and 
Bradstreet's Web site at http://www.dnb.com/us/.

Summary of Comments and Responses

    The Census Bureau received 50 comments on the interim final rule 
published in the Federal Register on August 5, 2009. 74 FR 38914. A 
summary of the comments and the Census Bureau's responses are provided 
below.
    The major concerns were as follows:
    1. Clarify the procedure for obtaining an EIN. Several commenters 
requested clarification on the procedure of how to obtain an EIN for 
the purpose of filing the EEI. To obtain an EIN, a business or 
individual must submit an application to the IRS, at the contact 
information listed above, via the Internet, phone, fax, or mail. There 
are no fees associated with obtaining an EIN, and the procedure to 
obtain an EIN takes approximately 15 minutes when applying online or by 
phone.
    2. Clarify the procedure for obtaining an EIN on behalf of another 
individual. One commenter requested clarification on the proper use of 
the SS-4 form when obtaining an EIN. Individuals may prepare the SS-4 
form when applying for an EIN via mail, fax, or authorize a third party 
to prepare the form on their behalf. If a third party is completing the 
SS-4 form by mail or fax, the individual for whom the EIN is being 
obtained will complete the section ``Third Party Designee.'' If a third 
party is completing the SS-4 form online, the individual will need to 
print the SS-4 form, complete the ``Third Party Designee'' section and 
retain for future reference. Completion of the ``Third Party Designee'' 
section is not required for individuals who are applying for an EIN on 
their own behalf.
    3. Clarify whether an individual can obtain an EIN if they are not 
opening a business. Several commenters questioned whether they would be 
providing the IRS with false information when applying for an EIN under 
the Sole Proprietor category if they are not starting a business. In 
addition, one of these commenters requested clarification on the tax 
ramifications of applying for an EIN. For purposes of registering or 
filing in the AES, a resident of the United States must use its EIN. 
While it is not specifically stated on the IRS Web site, an EIN can be 
obtained for government reporting purposes when a person does not own a 
business. A U.S. company must use its EIN when registering in the AES, 
and must use either its EIN or DUNS when filing. Use of the EIN in the 
AES is strictly for identification purposes, and information entered 
into the AES is not disclosed to the IRS.
    4. Clarify the filing requirement for an individual who rarely 
exports. Several commenters questioned whether the frequency of their 
shipments warranted the effort required to obtain an EIN. Regardless of 
shipping frequency, any person (natural or legal) shipping goods to a 
foreign country that requires filing of the EEI via the AES will need 
to obtain an EIN from the IRS.
    5. Clarify whether a passport, driver's license, or customs 
assigned number can be used in place of the SSN. Several commenters 
questioned why a passport, driver's license, or customs assigned number 
cannot be used in lieu of the EIN for U.S. residents. In addition, 
several of these commenters suggested that the Census Bureau amend the 
interim final rule to make SSNs or passport numbers optional when 
filing the EEI.
    Passports have expiration dates and the numbers are subject to 
change if the passports are not renewed timely. Allowing the use of a 
passport number in the AES makes it difficult for the U.S. Customs and 
Border Protection (CBP) to enforce control laws by introducing a 
variable that is subject to change, thereby making it more difficult to 
track and analyze historical shipping patterns. In addition, obtaining 
a U.S. passport requires the payment of fees, and generally takes two 
to six weeks. Moreover, passports are used for the specific purpose of 
exiting and returning to the United States as a U.S. citizen. The 
Census Bureau elected to replace the SSN with an EIN because the EIN 
can be obtained at the IRS Web site free of charge within 15 minutes. 
The EIN does not have an expiration date, so it can be used 
indefinitely. In addition, a person can serve as a third party designee 
and apply for an EIN on behalf of an individual.
    A driver's license number, like the SSN, is considered highly 
sensitive Personally Identifiable Information (PII) that can directly 
be used to identify an individual. The EIN is not as sensitive a form 
of PII as either a driver's license or SSN. Moreover, because of 
varying license formats among the states and the need to accommodate 
changes when persons move to different states, the use of drivers' 
licenses would introduce more operational complexity than EINs.
    The USPPIs shall report an EIN or the DUNS in the USPPI 
identification field. The DUNS may only be reported for businesses. If 
a foreign entity is the USPPI for filing purposes, it shall report a 
DUNS, border crossing number, passport number, or any number assigned 
by the CBP. Thus, for the reasons stated above, the Census Bureau does 
not adopt this suggestion.
    6. Amend the Interim Final Rule to postpone the implementation 
date. Several commenters requested a further delay in the 
implementation date of the interim final rule because of concerns that 
there would be delays in the export process by having to obtain an EIN. 
In addition, several of these commenters requested that the Census 
Bureau conduct an impact analysis on exporters. Based on information 
available from IRS's Web site, the approximately four months between 
the publication of this interim final rule on August 5, 2009, and the 
implementation date of December 3, 2009, was more than enough time to 
obtain an EIN; thus, no AES filer should experience any delays in 
exporting as a result of the implementation of this final rule. In 
addition, the Census Bureau has not received any information since 
December 3, 2009, suggesting that exporters are experiencing (or have 
experienced) delays in the export process due to the interim rule. 
Findings from an impact analysis show that on a monthly basis, an 
average of 3.8 percent of filers using the SSN are affected. For the 
foregoing reasons, the Census Bureau does not adopt the suggestion that 
it delay implementation of this final rule.
    7. Clarify the procedure for updating AES account information if a 
filer was originally registered with an SSN. Several commenters raised 
the concern that reregistering in the AES after obtaining an EIN would 
result in the loss of current AES account information. However, if they 
are currently registered under an SSN, AESDirect filers can complete 
the

[[Page 7548]]

Automated Transition Form to migrate their account information, 
currently stored under the SSN account, to a new EIN account. As of 
October 20, 2009, the Automated Transition Form has been available on 
the AESDirect Web site. Those who file directly into the AES must 
contact their CBP representative to have their account manually 
transitioned.
    8. Clarify whether a company or individual can use its EIN as the 
USPPI identification number when filing on behalf of the USPPI. Several 
commenters wanted to know if a company or individual could use its EIN 
as the USPPI identification number when filing on behalf of the USPPI. 
A company that is filing in the AES on behalf of an individual cannot 
use its EIN. When filing the EEI on behalf of a USPPI, the EIN of that 
USPPI must be used as the identification number. The filer's EIN cannot 
be used as the USPPI identification number. The use of another company 
or individual's EIN is prohibited.
    9. Clarify the use of an EIN for shipments to the U.S. Armed 
Services. Several commenters wanted to know if an EIN would be required 
for shipments to the U.S. Armed Services. Filing an AES record is not 
required for shipments to the U.S. Armed Services for their exclusive 
use, whether the shipments are made commercially or through government 
channels, including shipments to armed services exchange systems per 
title 15, CFR, Part 30, FTR, section 30.39. This exemption does not 
apply to articles on the United States Munitions List that are 
controlled by the International Traffic in Arms Regulations, or to 
shipments that are not consigned to the U.S. Armed Services, regardless 
of whether they may be for its ultimate and exclusive use. If an export 
falls under this exemption, you are not required to obtain an EIN 
because filing an AES record is not required.
    10. Clarify the use of an EIN for shipments to employees of 
government agencies. Several commenters wanted to know if government 
agencies or employees of these agencies were required to obtain an EIN 
for shipping purposes. Filing an AES record is not required for the 
following shipments: office furniture, office equipment, and office 
supplies shipped to and for the exclusive use of U.S. government 
offices, or household goods and personal property shipped to and for 
the exclusive and personal use of U.S. government employees. These 
shipments are exempt from filing the EEI per title 15, CFR, Part 30, 
FTR, section 30.40. If an export falls under this exemption, you are 
not required to obtain an EIN because filing an AES record is not 
required.

Regulatory Changes

    To ensure the confidentiality of the USPPI's and the U.S. 
authorized agent's personal information, and to comply with the Privacy 
Act and OMB guidance, the Census Bureau is amending relevant sections 
of the FTR to specify the requirements for the reporting of an EIN, or 
DUNS in place of a SSN for identification purposes in the AES.
    The Census Bureau is amending the following sections of the FTR:
     Section 30.1(c) definition for Party ID type is revised to 
eliminate the SSN.
     Sections 30.3(a) and 30.3(e) are revised to eliminate the 
requirement of reporting the SSN in the AES.
     Sections 30.6(a) and 30.6(b) are revised to eliminate the 
SSN as an option for the USPPI and U.S. authorized agent identification 
number.
    The U.S. Department of State and U.S. Department of Homeland 
Security concur with the provisions contained in this Final Rule.

Rulemaking Requirements

Administrative Procedure Act

    The Census Bureau finds good cause pursuant to 5 U.S.C. 553(b)(B) 
to waive prior notice and opportunity for public comment, as public 
comment is impracticable and contrary to the public interest of 
maintaining the security of personal information. To ensure the 
confidentiality of the USPPI and the U.S. authorized agent's personal 
information, and to comply with the Privacy Act, the Census Bureau is 
amending appropriate sections of the FTR to eliminate the reporting of 
the SSN by USPPIs and U.S. authorized agents. If this rule were delayed 
to allow for notice and opportunity for public comment, USPPIs and U.S. 
authorized agents would continue to be required to submit their SSN to 
the Census Bureau if they do not have an EIN or DUNS. Therefore, in 
order to maintain the security of personal information, and to comply 
with the Privacy Act, the Census Bureau has determined that it will 
make this rule effective on March 24, 2010.

Regulatory Flexibility Act

    Because notice and opportunity for comment are not required 
pursuant to 5 U.S.C. 553, or any other law, the analytical requirements 
of the Regulatory Flexibility Act are inapplicable. Therefore, a final 
regulatory flexibility analysis is not required and one has not been 
prepared.

Executive Orders

    This rule has been determined to be not significant for purposes of 
Executive Order 12866. It has been determined that this rule does not 
contain policies with Federalism implications as that term is defined 
under Executive Order 13132.

Paperwork Reduction Act

    The collection of information required in this final rule has been 
approved by the OMB under the Paperwork Reduction Act (PRA), title 44, 
U.S.C. Chapter 35. This rule amends a collection of information subject 
to the requirements of the PRA, which has been approved under OMB 
control number 0607-0152. The reporting and recordkeeping burden for 
this requirement is estimated at three total burden minutes per AES 
filing. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall a person be subject to a penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a current, valid OMB control number.

List of Subjects in 15 CFR Part 30

    Economic statistics, Exports, Foreign trade, Reporting and 
recordkeeping requirements.

0
Accordingly, as discussed above, the interim final rule amending Title 
15 Code of Federal Regulations Part 30, which published at 74 FR 38914 
on August 5, 2009, is adopted as a final rule without change.

    Dated: February 16, 2010.
Robert M. Groves,
Director, Bureau of the Census.
[FR Doc. 2010-3365 Filed 2-19-10; 8:45 am]
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