DRA-2-02-CO:R:C:E 225569 CB
U.S. Customs Service
Regional Program Manager Drawback Unit
Northeast Region
10 Causeway Street, Ste. 810
Boston, MA 02222-1056
RE: Request for Internal Advice; Export Documentation; Drawback
claim
Dear Sir:
This is in reply to your memorandum dated July 8, 1994 (your
fie DRA-1-0:CO:L DJG), requesting internal advice regarding proof
of exportation for drawback purposes.
FACTS:
The customhouse broker for the Bausch & Lomb Company has
submitted a package of export documentation on which they would
like your opinion. You state that the importer intends to use the
totality of this documentation to establish the fact and date of
exportation for drawback purposes.
The sample documentation consists of the following:
1. a bill from the Canadian Customs broker;
2. a copy of the Canadian Customs entry;
3. a copy of the Canadian Customs invoice; and
4. a copy of the commercial invoice.
The broker claims that the documents tie together so that the
commercial invoice number is referenced on the Canadian Customs
invoice ("CCI"). The shipping date on the commercial invoice and
CCI correspond with the date of direct shipment listed on the
Canadian entry. The number of packages and total values match on
the CCI and entry. And, finally, the Canadian Customs transaction
number on the entry is the same on the Broker's billing invoice.
During a telephone conversation between the broker and this
office, the broker clarified that Bausch & Lomb would be applying
for both manufacturing drawback and same condition drawback on
exports to Canada.
ISSUE:
Whether the proposed documentation package satisfies the
regulatory requirements for proof of exportation.
LAW AND ANALYSIS:
The Customs Regulations pertaining to drawback, promulgated
under the authority of section 1313(1), are generally found in 19
CFR Part 191. However, the drawback regulations pertaining to
drawback under the North American Free Trade Agreement (NAFTA)
are found in 19 CFR Part 181. The regulations pertaining to
meeting the evidentiary requirements for NAFTA exportations are
specifically found in 19 CFR 181.47. The importer has specified
that the request for internal advice applies to exports to
Canada. Therefore, the proposed documentation package has to be
analyzed under both the non-NAFTA drawback and NAFTA drawback
regulations. The NAFTA provisions on drawback will apply to goods
exported to Canada on or after January 1, 1996.
The Customs regulations pertaining to meeting the evidentiary
requirements for exportation are specifically found in 19 CFR
191.51 - 191.57. The regulations provide for three optional
procedures whereby the exportation of articles covered by a
drawback claim may be established:
1. Certified Notice of Exportation (191.52(c)(1));
2. Uncertified Notice of Exportation (191.52(c)(2)); or
3. Exporter's Summary (191.53).
In the request for internal advice, the broker does not
specify which of the three options Bausch & Lomb will be using.
It is assumed for purposes of this ruling, that the claimant will
be using the uncertified notice of exportation procedure. When
the uncertified notice of exportation procedure is used to
support a drawback claim, it must be supported by "documentary
evidence of exportation, such as the bill of lading, air waybill,
freight waybill, Canadian Customs manifest, cargo manifest, or
certified copies thereof, issued by the exporting carrier."
Supporting documentary evidence is required to establish fully
the time and fact of exportation and the identity of the exporter
(19 CFR 191.52(c)(2)).
The Customs Service has published a number of rulings on the
evidence necessary to establish exportation for drawback purposes
(see Treasury Decision (T.D.) 78-283 and Customs Service
Decisions (C.S.D.'s) 79-72, 79-254, 79-399, 8259, 85-23, and 89-21). As stated in C.S.D. 79-253, the list set forth in the
regulation is not exclusive and a variety of documents may be
used to support uncertified notices of exportation. The ruling
held that other documents certified by a disinterested third
party having knowledge of the exportation are acceptable. The
instant documentary package includes the Canadian Customs entry
which shows the date of the physical entry of the merchandise
into Canada (this date is shown in the upper right hand comer
after the words "CADEX REL"). Also, the "direct shipment date"
shown on the documents is the date the merchandise leaves the
factory. On the basis of the cited rulings and the governing
section of the Customs Regulations, the proposed documentation
package is satisfactory documentary evidence of exportation for
drawback purposes up until December 31, 1995.
The requirements for proof of exportation for NAFTA are found
in 19 CFR 181.47(b)(2)(ii)(G) and 181.47(b)(2)(I)(D). These
regulations will apply to the above-described fact situation as
of January 1, 1996. For purposes of same condition drawback on
NAFTA exportations, the regulation provides that supporting
documentary evidence shall establish fully the time and fact of
exportation, the identity of the exporter, and the identity and
location of the ultimate consignee of the exported goods. 19 CFR
181.47(b)(2)(ii)(G). The regulation includes a bill of lading,
air waybill, freight waybill, export ocean bill of lading,
Canadian customs manifest, cargo manifest, or certified copies
thereof, issued by the exporting carrier and signed in ink, as
exemplars of satisfactory documentary evidence. Id. The
requirements for proof of exportation under NAFTA for same
condition drawback do not differ from the requirements for the
uncertified notice of exportation procedure for non-NAFTA
drawback.
Therefore, on the basis of the governing regulation and the
conclusion reached with respect to non-NAFTA drawback proof of
exportation, the proposed documentation package is satisfactory
supporting documentary evidence of exportation for same condition
NAFTA-eligible drawback purposes.
Regarding manufacturing NAFTA-eligible drawback claims, NAFTA
provides that the amount of customs duties that will be refunded,
reduced or waived will be the lesser of the total amount of
customs duties paid or owed on the goods or materials when
imported into a NAFTA country and the total amount of customs
duties paid or owed on the finished good in the NAFTA country to
which it is exported. Therefore, the proof of exportation
requirements for manufacturing drawback are different. Under the
regulations, proof of exportation to Canada is the Canadian entry
document ("Canadian Customs Invoice or B-3), "presented with
either the K-84 Statement or the Detailed Coding System." See 19
CFR 181.47(b)(2)(I)(D) which incorporates 181.47 by reference.
The regulation goes on to provide that a Canadian customs
document that is not accompanied by a valid receipt [for duties
paid] is not adequate proof of exportation and payment of duty in
Canada. 19 CFR 181.47(c)(1). Finally, the final customs duty
determination of Canada, or a copy thereof, respecting the
relevant entry must also be provided. See 19 CFR 181.47(c)(3). A
review of the document package submitted on behalf of Bausch &
Lomb discloses that this package would not meet the requirements
for proof of exportation for manufacturing drawback under NAFTA
because there is no evidence of duties paid.
HOLDING:
The sample documentation package submitted by Bausch & Lomb
is sufficient evidence to establish proof of exportation for
drawback purposes, as required under 19 CFR 8191.52, as
applicable, until December 31, 1995. The package also meets the
requirements for proof of exportation, as set forth in 19 CFR
181.47(b)(2)(ii), for same condition drawback merchandise
exported to a NAFTA country. However, the documentation package
fails to meet the regulatory requirements for proof of
exportation for manufacturing drawback under NAFTA because there
is no evidence of payment of duties.
This decision should be mailed by your office to the internal
advice requester no later than 60 days from the date of this
letter. On that date the Office of Regulations and Rulings will
take steps to make the decision available to Customs personnel
via the Customs rulings Module in ACS and to the public via the
Diskette Subscription Service, Freedom of Information Act and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division