[Federal Register Volume 63, Number 151 (Thursday, August 6, 1998)]
[Proposed Rules]
[Pages 41979-41982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21024]


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DEPARTMENT OF COMMERCE

Bureau of the Census

15 CFR Part 30

[Docket No. 980716108-8108-01]
RIN 0607-AA20


Amendment to Foreign Trade Statistics Regulations To Clarify 
Exporters' and Forwarding Agents' Responsibilities and To Clarify 
Provisions for Executing a Power of Attorney

AGENCY: Bureau of the Census, Commerce.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The Bureau of the Census (Census Bureau) proposes amending the 
Foreign Trade Statistics Regulations (FTSR), 15 CFR Part 30, to clarify 
exporters' and forwarding agents' responsibilities for providing and 
reporting information on the Shipper's Export Declaration (SED), and to 
clarify the provisions for executing a power of attorney when exporters 
authorize forwarding agents to perform services regarding the export of 
merchandise out of the United States. This proposed rule will further 
clarify the provisions for executing a power of attorney when the 
principal party is transmitting SED information electronically. The 
Census Bureau also proposes requiring that the SED be prepared in 
English.
    The proposed revisions are consistent with the Bureau of Export 
Administration's Export Administration Regulations (EAR) regarding 
export control responsibilities of exporters and forwarding agents. The 
Department of Treasury concurs with the provisions contained in this 
proposed rule.

DATES: Written comments must be submitted on or before October 5, 1998.

ADDRESSES: Direct all written comments on this proposed rulemaking to 
the Director, Bureau of the Census, Room 2049, Federal Building 3, 
Washington, D.C. 20233.

FOR FURTHER INFORMATION CONTACT: C. Harvey Monk, Jr., Chief, Foreign 
Trade Division, Bureau of the Census, Room 2104, Federal Building 3, 
Washington, D.C. 20233-6700, by telephone on (301) 457-2255 or by fax 
on (301) 457-2645.

SUPPLEMENTARY INFORMATION:

Background

    In response to requests from various members of the trade 
community, the Census Bureau proposes amending 15 CFR Part 30 to 
clarify the responsibilities of exporters and forwarding agents for 
preparing and submitting SEDs and to clarify the provisions for 
obtaining and executing a power of attorney.
    For purposes of this proposed rule, the exporter is defined as any 
person in the United States; any firm; government agency, department, 
or commission; and any other association or organization, whether or 
not organized for profit, organized under the laws of the United 
States, or any jurisdiction within the United States, who is also the 
principal party in interest in the export transaction. Generally, the 
exporter is the U.S. manufacturer, seller, order party, or licensee on 
an export license. A forwarding agent may act as exporter, but only 
when it is the ``applicant'' and ``licensee'' on an export license. A 
foreign principal, not located in the United States at the time of 
export, must not be designated as exporter on the SED. If a U.S. 
manufacturer sells merchandise for export to a foreign company 
(including Ex Works), the U.S. manufacturer must be listed as exporter 
on the SED. If a U.S. manufacturer sells merchandise to a U.S. seller 
(wholesaler/distributor), and the U.S. seller sells the merchandise for 
export to a foreign company (including Ex Works), the U.S. seller must 
be listed as exporter on the SED. If a U.S. manufacturer or seller 
sells merchandise to a U.S. order party and the U.S. order party 
arranges for the sale and export of the merchandise to a foreign 
company (including Ex Works), the U.S. order party must be listed as 
exporter on the SED.
    The U.S. manufacturer, seller, or order party, that is, the 
principal party in interest in the export transaction, may authorize 
its own forwarding agent to facilitate the export transaction or may 
authorize the forwarding agent designated by the foreign company. In 
either case, the U.S. manufacturer, seller, or order party must 
authorize the forwarding agent to act on its behalf in completing and 
filing the SED in a power of attorney or a written authorization to 
execute the SED, or sign the authorization printed on the SED. When a 
U.S. manufacturer, seller, or order party authorizes a forwarding agent 
to facilitate the export transaction, the manufacturer, seller, or 
order party, that is, whoever sold the merchandise to the foreign 
company, must be listed as the exporter on the SED, unless the 
forwarding agent is the applicant and licensee on an export license.
    The forwarding agent is any person in the United States; any firm; 
government agency, department or commission; and any other association 
or organization, whether or not organized for profit, organized under 
the laws of the United States, or any jurisdiction within the United 
States, who is authorized by the U.S. principal party in interest in 
the export transaction to perform the services required to facilitate 
the export of the merchandise out of the United States. The principal 
party must authorize a forwarding agent to act on its behalf in 
completing and filing the SED in a power of attorney or a written 
authorization to execute the SED, or sign the authorization printed on 
the SED. The principal party also must provide the forwarding agent 
with the information necessary to correctly prepare the SED in 
accordance with the requirements specified in FTSR Sec. 30.7.
    The FTSR places ultimate responsibility for the export transaction 
on the exporter. However, the FTSR also considers all parties to the 
export transaction, including U.S. and foreign principals and 
forwarding agents responsible for providing information necessary to 
complete the SED, and for the accuracy of the information reported on 
the SED. If a forwarding agent's principal does not possess the 
necessary information, the forwarding agent may request that other 
parties to the export transaction provide that information. The parties 
to the transaction must provide the forwarding agent with the necessary 
information to correctly prepare the SED. Necessary and proper 
documentation must be maintained by all parties involved in the export 
transaction to support information reported on the SED.

[[Page 41980]]

    This proposed rule clarifies provisions for using a properly 
executed power of attorney when a forwarding agent is authorized to 
prepare the SED on behalf of the exporter and when the SED information 
is filed electronically. Suggested formats for a power of attorney and 
a written authorization for executing a SED are available from the 
Foreign Trade Division, Bureau of the Census, and from the Office of 
Export Services, Bureau of Export Administration. Formats for the power 
of attorney and written authorization are provided in Appendix A and B 
to this proposed rule.
    This proposed amendment further requires that the SED be prepared 
in English. This provision is already included in the Census Bureau's 
instructions for completing the SED, so this proposed amendment serves 
simply to include that requirement in the Code of Federal Regulations 
(CFR).
    In addition, this proposed amendment clarifies the provision in 
Sec. 30.7(d)(2) that a foreign entity, if operating in the United 
States at the time of export, can be listed as ``exporter'' on the SED, 
but does not need to report an Internal Revenue Service Employer 
Identification Number (EIN) or a Social Security Number (SSN) on the 
SED. Using an EIN or SSN that is not your own is prohibited.

Program Requirements

    In order to comply with the requests from the trade community to 
update the provisions of the FTSR and to clarify the items discussed 
above, the Census Bureau proposes amending appropriate sections of the 
FTSR.
    The Census Bureau proposes amending Section 30.4(a) to include: a 
description of the duties and responsibilities of exporters and 
forwarding agents; provisions for obtaining information for the 
preparation of the SED; provisions for authorizing a forwarding agent 
to perform exporting services; and provisions for filing a power of 
attorney when SED information is going to be transmitted 
electronically.
    The Census Bureau proposes amending Section 30.4(b) to include the 
provision that the SED be prepared in English. This will make it 
consistent with the current instructions for preparing the SED.
    The Census Bureau proposes amending Section 30.7(d)(1) ``Name of 
exporter and exporter's Employer Identification Number'' to clarify the 
designation of ``exporter'' named on the SED.
    The Census Bureau proposes amending Section 30.7(d)(2) ``Exporters 
Employer Identification Number'' to clarify the requirement that a 
foreign principal, located in the United States at the time of export, 
can complete a SED as ``exporter'' without reporting an Internal 
Revenue Service EIN or SSN.
    The Census Bureau further proposes amending section 30.7(e) ``Agent 
of exporter (forwarding agent)'' to specify the responsibilities of the 
forwarding agent in preparing the SED.

Rulemaking Requirements

    This proposed rule is exempt from all requirements of Section 553 
of the Administrative Procedure Act because it deals with a foreign 
affairs function (5 U.S.C. (A) (1)). However, this is being published 
as a proposed rule with an opportunity for public comment because of 
the importance of the issues raised by this rulemaking.

Regulatory Flexibility Act

    Because a notice of proposed rulemaking is not required by 5 U.S.C. 
553 or any other law, a Regulatory Flexibility Analysis is not required 
and has not been prepared (5 U.S.C. 603 (a)).

Executive Orders

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866. This proposed rule does not contain 
policies with Federalism implications sufficient to warrant preparation 
of a Federalism assessment under Executive Order 12612.

Paperwork Reduction Act

    Notwithstanding any other provisions 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 Paperwork Reduction Act (PRA), unless that collection of 
information displays a currently valid Office of Management and Budget 
(OMB) control number.
    This proposed rule covers collections of information subject to the 
provisions of the PRA, which are cleared by the OMB under OMB Control 
Number 0607-0152.
    This proposed rule will not impact the current reporting-hour 
burden requirements as approved under OMB Control Number 0607-0152 
under provisions of the PRA of 1995, Public Law 104-13.

List of Subjects in 15 CFR Part 30

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

    For the reasons set out in the preamble, it is proposed that Part 
30 be amended as follows:

PART 30--FOREIGN TRADE STATISTICS

    1. The authority citation for 15 CFR Part 30 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization Plan 
No. 5 of 1950 (3 CFR 1949-1953 Comp., 1004); Department of Commerce 
Organization Order No. 35-2A, August 4, 1975, 40 CFR 42765.

Subpart A--General Requirements--Exporter

    2. Section 30.4 is proposed to be amended by revising paragraphs 
(a) and (b) to read as follows:


Sec. 30.4  Preparation and signature of Shipper's Export Declarations.

    (a) The Shipper's Export Declaration (SED) shall be prepared and 
signed by any person in the United States; any firm; government agency, 
department, or commission; and any other association or organization, 
whether or not organized for profit, organized under the laws of the 
United States, or any jurisdiction within the United States, who is 
also the principal party in interest in the export transaction. 
Generally, that person will be the exporter or the authorized 
forwarding agent.
    (1) Exporter. The exporter is any person in the United States; any 
firm; government agency, department, or commission; and any other 
association or organization, whether or not organized for profit, 
organized under the laws of the United States, or any jurisdiction 
within the United States, who is also the U.S. principal party in 
interest in the export transaction. Generally, the exporter is the U.S. 
manufacturer, seller, order party <SUP>3a</SUP>, or licensee on an 
export license. A forwarding agent may be the exporter only when it is 
the ``applicant'' and ``licensee'' on an export license. (See 15 CFR 
Secs. 748.5 and 750.7(d)).
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    \3a\ The order party is that person in the United States who 
conducted the direct negotiations or correspondence with the foreign 
purchaser or ultimate consignee and who, as a result of these 
negotiations, received the order from the foreign purchaser or 
ultimate consignee.
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    (2) Forwarding Agent. The forwarding agent is any person in the 
United States; any firm; government agency, department, or commission; 
and any other association or organization, whether or not organized for 
profit, organized under the laws of the United States, or any 
jurisdiction within the United States, who is authorized by the

[[Page 41981]]

U.S. principal party in interest in the export transaction to perform 
the services required to facilitate the export of merchandise out of 
the United States. Forwarding agents should be authorized in a power of 
attorney or the authorization printed on the SED, or with some type of 
written authorization to execute the SED. The forwarding agent is 
generally responsible for arranging for the transport and delivery of 
the merchandise to the exporting carrier and, when the principal 
requests it, correctly preparing and submitting the SED. Forwarding 
agents that prepare the SED do so based on information obtained from 
the principals and other appropriate parties to the transaction and are 
responsible for the accuracy of all information provided on the SED, 
including the description of the merchandise being exported, export 
licensing information, Schedule B commodity numbers, and quantity, 
weight, and valuation information for the merchandise being exported. 
All parties to a transaction shall maintain the necessary and proper 
documentation to support the information reported on the SED. (See 
Sec. 30.11 and 15 CFR Part 762 on Recordkeeping).
    (3) Information on the Shipper's Export Declaration (SED). The data 
provided on the SED shall be complete, correct, and shall be based on 
personal knowledge of the facts stated or on information furnished by 
the parties involved in the export transaction. All parties involved in 
export transactions, including U.S. and foreign principals and 
forwarding agents, should be aware that invoices and other commercial 
documents may not necessarily contain all the information needed for 
the preparation of the SED. The parties must ensure that all the 
information needed for the SED, including correct export licensing 
information, is provided to any forwarding agent for the purpose of 
correctly preparing the SED. The principal may delegate the 
responsibility of obtaining the correct export control information and 
required licenses to the forwarding agent, as long as this delegation 
of responsibility is reflected in writing and signed by both the 
principal and the forwarding agent.
    (4) Authorizing a Forwarding Agent. Although a U.S. or foreign 
principal may designate a forwarding agent, only the U.S. principal has 
the authority to execute a power of attorney or sign the authorization 
printed on the SED, or provide a written authorization authorizing the 
forwarding agent to perform the services required to facilitate the 
export transaction. The failure of the U.S. principal to authorize, in 
writing, the forwarding agent to act on its behalf does not relieve 
either party of responsibility for actions taken in connection with an 
export transaction. A power of attorney or written authorization is 
most useful when it specifies the responsibilities of the parties with 
particularity, but it should at least state that the forwarding agent 
has authority to act on behalf of the U.S. principal as its true and 
lawful agent for purposes of the export transaction and in accordance 
with the laws and regulations of the United States. A power of attorney 
may be executed by using either the available formats provided by the 
Foreign Trade Division, Bureau of the Census, or the Office of Export 
Services, Bureau of Export Administration, or any other format or 
authorization acceptable to the parties involved. The parties to the 
transaction must keep any power of attorney or written authorization on 
file and available for inspection on demand. In cases where the 
forwarding agent is acting on behalf of a U.S. principal and filing the 
SED information electronically, a power of attorney or other written 
authorization is particularly important.
    (b) The SED shall be prepared in English and shall be typewritten 
or prepared in ink or other permanent medium (except indelible pencil). 
The use of duplicating processes, as well as the overprinting of 
selected items of information is acceptable.
* * * * *
    3. Section 30.7 is proposed to be amended by revising paragraphs 
(d)(1), (d)(2), and (e) to read as follows:


Sec. 30.7  Information required on Shipper's Export Declarations.

* * * * *
    (d) Name of exporter and exporter's Employer Identification Number 
(EIN). The name and address (number, street, city, state, zip code) of 
the exporter and the exporter's EIN shall be entered where requested on 
the Shipper's Export Declaration (SED). The EIN shall be the exporter's 
own and not another's EIN.
    (1) Name of exporter. The exporter named on the SED must be any 
person in the United States; any firm; government agency, department, 
or commission; and any other association or organization, whether or 
not organized for profit, organized under the laws of the United 
States, or any jurisdiction within the United States, who is also the 
U.S. principal party in interest in the export transaction (see 
Sec. 30.4(a)(1)). In addition, a forwarding agent that is the 
``applicant'' and ``licensee'' on an export license is considered the 
exporter. (On Form 7513, if an authorized agent is representing the 
exporter, the name of the exporter as defined herein should be shown on 
the line labeled ``For account of'' where ``Principal or seller'' is 
indicated below the line on the form.)
    (2) Exporter's Employer Identification Number (EIN). An exporter 
shall report its own Internal Revenue Service EIN on the SED. If, and 
only if, no Internal Revenue Service EIN has been assigned to the 
exporter, the exporter's SSN, preceded by the symbol ``SS'' must be 
reported. In situations when a foreign principal who does not possess 
an EIN or SSN operates from within the United States to facilitate its 
own export, no EIN or SSN reporting requirement applies. Using 
another's EIN or SS is prohibited.
    (e) Forwarding Agent. The name and address of the duly authorized 
forwarding agent (if any) of the U.S. principal shall be recorded where 
requested on the SED. (See Sec. 30.4(a)(2) or 15 CFR Part 772 for a 
definition of ``forwarding agent''). In addition, a forwarding agent 
that is an ``applicant'' and ``licensee'' on an export license is 
considered the exporter, and as the exporter, must enter his/her own 
name, address, and EIN or SSN as the exporter. (See Sec. 30.4(a)(1) and 
Sec. 30.7(d)). (On Form 7513, the information as to agent (if any) 
should be shown on the line labeled ``Exporter'' where ``Actual shipper 
or agent'' is indicated below the line on the form.)
* * * * *
    Dated: July 21, 1998.
James F. Holmes,
Acting Director, Bureau of the Census.

Bureau of the Census--Appendix A

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Power of Attorney Export Forwarding Agent

    Know all men by these presents, That ____________________ (Name 
of Exporter), the (Exporter) organized and doing business under the 
laws of the State or Country of ____________ and having an office 
and place of business at ____________________ (Address of Exporter) 
hereby authorizes ____________________ (Forwarding Agent), the 
(Forwarding Agent) of ____________________ (Address of Forwarding 
Agent) to act for and on its behalf as a true and lawful agent and 
attorney of the Exporter for and in the name, place, and stead of 
the Exporter, from this date, in the United States either in 
writing, electronically, or by other authorized means to:
    Act as Forwarding Agent for Export Control, Census Reporting, 
and Customs purposes. Make, endorse, or sign any Shipper's Export 
Declaration or other documents or to perform any act which may

[[Page 41982]]

be required by law or regulation in connection with the exportation 
or transportation of any merchandise shipped or consigned by or to 
the Exporter and to receive or ship any merchandise on behalf of the 
Exporter.
    The Exporter hereby certifies that all statements and 
information contained in the documentation provided to the 
Forwarding Agent relating to exportation are true and correct. 
Furthermore, the Exporter understands that civil and criminal 
penalties, may be imposed for making false or fraudulent statements 
or for the violation of any United States laws or regulations on 
exportation.
    This power of attorney is to remain in full force and effect 
until revocation in writing is duly given by the Exporter and 
received by the Forwarding Agent.
    In witness whereof, ____________________ (Full Name of Exporter/
Exporting Company) caused these presents to be sealed and signed:

Witness:---------------------------------------------------------------

Signature:-------------------------------------------------------------

Capacity:--------------------------------------------------------------

Date:------------------------------------------------------------------

Bureau of the Census--Appendix B

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Authorization to Prepare or Transmit Shipper's Export Information 
(Suggested Format)

    I ____________________(Exporter), authorize 
____________________(Forwarding Agent), to act as forwarding agent for 
export control and customs purposes and to sign any Shipper's Export 
Declaration (SED), or transmit such export information electronically, 
which may be required by law or regulation in connection with the 
exportation or transportation of any merchandise on behalf of said 
Exporter. The Exporter certifies that necessary and proper 
documentation to accurately complete the SED or transmit the 
information electronically is and will be provided to the said 
Forwarding Agent. Exporter further understands that civil and criminal 
penalties may be imposed for making false or fraudulent statements or 
for the violation of any United States laws or regulations on 
exportation and agrees to be bound by all statements of said agent 
based upon information or documentation provided by exporter to said 
agent.

Signature: __________________(Exporter)

Capacity: ________________

Date: ______________________

[FR Doc. 98-21024 Filed 8-5-98; 8:45 am]
BILLING CODE 3510-07-P