- Export Clearance Procedures; the Bureau of Census and Foreign Trade Statistics Regulations
When a party exports commodities and technical data (other than in an intangible form) from the United States, there is a requirement that the exporter (on its own or through an agent, such as a freight forwarder) submit a declaration with the U.S. Government. This declaration is referred to as a "Shipper's Export Declaration" (or "SED"). The requirement for filing these declarations is found in the U.S. Foreign Trade Statistics Regulations (FTSR) (15 C.F.R. 30 et seq.), which are administered by the United States Bureau of Census.
Recent rule changes clarify that export declarations must be filed by the U.S. principal-party-in-interest ("USPPI"), or by an authorized agent of the USPPI, such as freight forwarder with a power of attorney. In limited circumstances, as in a "routed export transaction" the foreign-principal-party-in-interest may except the legal responsibility for the export transaction, and authorize its freight forwarder to prepare and submit the export declaration. While the USPPI is still shown on the export declaration, legal responsibility for the transaction is transferred to the Foreign party. For a foreign-principal-party-in-interest to take responsibility for the export transaction, it must take title to the goods while in the U.S., and provide the U.S. principal-party-in-interest with written confirmation of this agreement.
Another recent rule that has been promulgated require that such filings to be made electronically through a program referred to as "Advanced Export System" or "AES". The electronic AES declaration serves to inform the U.S. government of:
- The parties to the transaction (name of U.S. exporter and name of foreign importer or consignee) and their addresses;
- A description of the articles exported;
- The Schedule B export commodity number for each article;
- The value of the articles exported;
- The ECCN of the articles exported, if appropriate;
- The export license number or export license exemption that authorizes the export of the goods or technology to the named destination
The AES declaration is the principal enforcement tool for the United States Government. Errors in the preparation of the AES declaration, or applicable license approval or exemption can result in the assessment of monetary fines of up to $10,000 or more per transaction.
While there is no AES declaration for technical data transfers, exporters are expected to keep track of such exports, particularly those related to exports of ITAR-controlled technical data.