Census Bureau is making a “generous” offer to members of the U.S. export trade community: 12 months of data free of charge every 365 days. All one needs to do is submit two documents: (1) Request Letter and (2) Certification of Authority.
Request letter should contain the following four (4) elements:
- Reason for request (i.e. internal company audit);
- EIN(s) and names of the requesting company and all subsidiaries, affiliates, or business units.
- Indication of whether your company is a United States Principal Party in Interest (USPPI) or the Authorized Agent (see Foreign Trade Regulations section 30.1 and 30.6(b)(1));
- Contact Information: Name, Address, Phone Number, Fax Number, and Email Address.
Certification of Authority is pro forma statement affirming one’s entitlement to request.
The offer is “generous” when compared to obtaining the similarly situated data for its imports from Census’ sister federal agency – Customs and Border Protection (CBP). CBP requests for import data are dealt under FOIA rubric of Importer Trade Activity requests (ITRAC). Unlike Census, CBP charges “$250.00 – $300.00.” But, the depending on how far back one wishes to go, the cost may be justified because ITRAC requests entitle one to five (5) years worth of data. The 5 year ITRAC data conforms to 5 year general data keeping rule for members of importing community under 19 C.F.R § 163.4. (“any record required to be made, kept, and rendered for examination and inspection by Customs under § 163.2 or any other provision of this chapter shall be kept for 5 years from the date of entry”). By contrast, if a member of exporting community wishes or needs to go over 365 day free data limit, Census states that “the company will be charged $125 per month for every extra month over the twelve.” The apparent generosity will quickly disappear for a member of exporting community if that member seeks data going back one year and three months, in which case Census is going to ask for $375 payment.
Further, for a “$250.00 – $300.00” fee CBP offers more choices to its customer. While Census asks for a hard copy letter submissions, the requests to CBP can be made by fax and email in addition to hard copy mail.
But there is a more fundamental question here. FOIA is a federal law which provides for a right to access federal records. Additionally, the law requires federal agencies, such as Census, to limit “reasonable standard charges for document search, duplication, and review, when records are requested for commercial use.” 5 U.S.C. 552(a)(4)(A)(ii)(I) (2011). Regulation promulgated pursuant to FOIA – 15 C.F.R. Subpart A – further limits Census ability to charge commercial use requesters (i.e. members of export trade community) the fees that are only attributable to “search, review, and duplication.” 15 C.F.R. § 4.11(c)(1) (2012). Regulations further prescribe a uniform fee schedule for computerized search and digital reproductions, fees for which are limited to “[a]ctual direct cost, including operator time.” 15 C.F.R. § 4.11(c)(2) (2012) (emphasis added). Regulations additionally prohibit Census from charging FOIA requests that are completed within “the first two hours of search (or the cost equivalent).” 15 C.F.R. § 4.11(d)(3)(ii) (2012).
Presuming that Census complies with federal law and regulations, the following must be true:
- It is costing Census more than two hours of search or its cost equivalent to retrieve and copy digital export records that are more than 12 months old; and
- The actual direct costs, including the operator time, that Census incurs to produce data that is more than 12 months old is $125 per each month.
These presumptions mean that CBP, with its 5 year data deal for “$250.00 – $300.00” is much more efficient government agency. These presumptions also mean that Census, by making a free one year promotion, has decided to waive away $1500 per 12 months ($125 asserted monthly cost) of taxpayer dollars. Of course, these presumptions fail, if Census reasons that the $125 / month charge is not covered by FOIA. Census, however, does not make that claim on its blog or its official website at the time of this writing. Indeed, such argument would be difficult to make in light of explicit acquiescence by CBP that similarly run program on the import side – ITRAC – is made available under FOIA.
What can an exporting community seeking its own export data do to obtain data that is more than one year old without simply writing a $125 (or higher) check or a money order? One thing may be is to explicitly avail oneself of FOIA before Census. Census provides form recommendations on its webpage, in addition to electronic ways of submission through Electronic FOIA (E-FOIA) request and FOIA Online System.
Readers should be warned that the above article pertains to information requests by an entity from the government (i.e. Census) about that same entity.
