[Federal Register: February 12, 1999 (Volume 64, Number 29)]
[Proposed Rules]
[Page 7421-7427]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12fe99-36]

[[Page 7421]]

_______________________________________________________________________

Part VIII

Department of the Treasury

_______________________________________________________________________

Customs Service

_______________________________________________________________________

19 CFR Parts 4, 101, and 192

Automated Export System (AES); Proposed Rule

[[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

[[Page 7427]]

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