October 8, 2020
Census Clarification on the Bureau of Industry and Security's Mandatory Filing Requirements related to the April 28, 2020 Final Rule
On Sunday, September 27, 2020, the Bureau of Industry and Security (BIS) required full compliance with a final rule that expanded the Electronic Export Information (EEI) filing requirement in the Automated Export System (AES) for exports to China, Russia and Venezuela. This rule can be found in its entirety at:
https://www.govinfo.gov/content/pkg/FR-2020-04-28/pdf/2020-07241.pdf?utm_campaign=&utm_content=&utm_medium=email&utm_source=govdelivery
The U.S. Census Bureau (Census) has received a number of questions related to BIS’s final rule, specifically the addition to § 758.1(b) of the BIS’s Export Administration Regulations (EAR). This rule added § 758.1(b)(10) of the EAR to require EEI filing for items on the Commerce Control List (CCL) (Part 774 of the EAR) destined to China, Russia, or Venezuela regardless of the value of the shipment, unless the shipment is eligible for License Exception GOV. Most of the questions that Census has received have been related to whether or not ALL exports to China, Russia, and Venezuela require filing.
Census reached out to our partner Commerce agency, BIS, and received the following guidance:
- “Items on the Commerce Control List” includes any item having an Export Control Classification Number (ECCN), but does not include items that are designated as EAR99.
- Starting Sunday, September 27, 2020, EEI filing for exports to China, Russia, or Venezuela of items controlled by ECCNs is required regardless of value, unless the shipment is eligible for License Exception GOV.
- EAR99 items are not subject to BIS's mandatory filing requirements under § 758.1(b)(10) and an AES exemption from the Foreign Trade Regulations (FTR) may apply.
- If EEI filing for exports to China, Russia, or Venezuela is required, then the ECCN must be reported in AES.
For example, an individual is exporting an item valued at $1,000 to China and needs to determine if filing EEI is required. The individual first needs to determine if filing is required under BIS’s mandatory filing requirements in § 758.1(b)(10) of the EAR by determining if the item has an ECCN or is EAR99, as well as any other mandatory filing requirement in § 758.1(b). In this example, the individual determines the item is EAR99. Because the item is EAR99 and destined to China, this export is not subject to the new filing requirement in § 758.1(b)(10). Therefore, an exemption from filing EEI under the FTR would apply, specifically the exemption in Section 30.37(a) of the FTR that applies to goods valued $2,500 or below per Schedule B, provided there are no other mandatory filing requirement in § 758.1(b). The individual in this example is not required to file EEI and the individual would provide the appropriate exemption annotation (i.e., NOEEI 30.37(a)) to the carrier.
Resources and Contact Information:
For the entirety of BIS’s final rule, please visit https://www.govinfo.gov/content/pkg/FR-2020-04-28/pdf/2020-07241.pdf
The BIS issued a FAQ document related to its final rule available here, with information related to filing EEI available on page 8 of the document: https://www.bis.doc.gov/index.php/documents/pdfs/2566-2020-meu-faq/file
For questions related to BIS’s final rule, how to determine if an item has an ECCN or is designated as EAR99, and for all other questions related to the EAR, please reach out to BIS directly at one of the phone numbers below:
- Outreach and Educational Services Division (located in Washington, DC): (202) 482-4811
- Western Regional Office (located in Irvine, CA): (949) 660–0144
- Northern California branch (located in San Jose, CA): (408) 998-8806
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