Census to Maintain EEI Requirements for Puerto Rico, US Virgin Islands

Feb. 7th, 2022

On February 4, 2022, the US Census Bureau announced via a withdrawal of an earlier Advanced Notice of Proposed Rulemaking (ANPRM) that it will not eliminate Electronic Export Information (EEI) reporting requirements for shipments between the US mainland, Puerto Rico, and the US Virgin Islands. This withdrawal comes after Census published an ANPRM in the Federal Register on September 17, 2020, requesting comments concerning the potential impact of the removal of such requirements.

According to Census, the decision to maintain the current EEI filing requirements follows “careful consideration based on the feedback received from the ANPRM and discussions between the Census and several stakeholders.” The decision follows months of both interagency and public discussions, including lobbying from parts of the US shipping industry who argued that the requirements are expensive, burdensome, and unreasonable. Census, it should be noted, is responsible for collecting, compiling, and publishing export trade statistics for the US under the provisions of Title 13, USC, Chapter 9, Section 301.

According to the February 4^th withdrawal, the ANPRM published on September 17, 2020, received 93 comments in total, with 50 comments in support of maintaining the current EEI filing requirements and 43 in support of removing them. Comments in support of removing the current requirements largely centered around the perceived unfair treatment of US territories, arguing that while Puerto Rico and the US Virgin Islands are not states, they are indeed territories of the US and shipments to and from these territories are considered domestic, rather than international shipments. One comment received argued that the Bureau of Industry and Security (BIS) and the International Trade Administration (ITA) do not treat shipments to and from Puerto Rico and the US Virgin Islands as exports. Several commenters also expressed concern that requiring EEI filings for shipments to US territories increases the cost and time for US shippers and freight forwarders, arguing that the requirement imposes an unnecessary and substantial regulatory and economic burden on shippers.

Comments in support of the current EEI filing requirements largely, although not entirely, revolved around data availability concerns. Although several alternative sources of data were proposed throughout the process, one commenter noted that the level of detail available through the proposed alternative sources would not match the level of data obtained through the filing of EEI. According to one comment, “there is currently no substitute for EEI that is routinely available, continuous, current, high frequency and published with documentation and technical support.” The comment argues that without an alternative data source that meets the same statistical objectives, it will not be possible to produce accurate GDP estimates for either Puerto Rico or the US Virgin Islands. One comment from a federal agency argued that the removal of the EEI filing requirements would negatively impact the agency’s ability to ensure the effective enforcement of items subject to the Export Administration Regulations (EAR) that may later be diverted to foreign countries.

If you have questions regarding EEI filing requirements or exports in general do not hesitate to contact an attorney at Barnes, Richardson & Colburn LLP.