[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 3a, 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
