OT:RR:CTF:EPDR H311759 JW
CITTA Brokerage Company
945 Chambers Street
Suite 300
South Ogden, UT 84403
Attn: Ms. Lois Graviet
RE: Ruling Request; CITTA Brokerage Company; Proof of Exportation
Dear Ms. Graviet,
This is in response to your letter dated June 15, 2020, requesting a ruling on whether either set of the example documents provided are sufficient to establish proof of exportation under 19 C.F.R. § 190.72, to Canada, for drawback purposes.
FACTS:
As noted above, two sets of documents were provided with the letter you submitted. You represented that these documents are not a part of any claim for drawback pending before U.S. Customs and Border Protection (“CBP”). The example documents provided in each set are as follows.
Set One
The documents in Set One consist of:
A commercial invoice, dated April 30, 2020, 12:03:00 PM, issued by Nortek Security & Control (“Nortek”); and
A proof of delivery issued by the United Parcel Service (“UPS”) along with the tracking details provided by the UPS website.
Specifically, the commercial invoice issued by Nortek and the proof of delivery and tracking details provided by UPS include the following information:
Information on Nortek Commercial Invoice:
Seller
Item Number
Item Description
Quantity
UoM
HTS
Final Destination
Tracking Number
Nortek
5919 Sea Otter Place, Suite 100,
Carlsbad, CA 92010
620-101293
Apex-II Module Assy
1
EA
8537.10.9160
Avant Guard Gates & Access Controls Ltd.
5421 – 180th Street
Unit B
Surrey BC V3S 4K5
Canada
1Z4657266891729311
Information on UPS Proof of Delivery and Tracking Details:
Tracking Number
Shipped Date and Location
Delivered Date
Delivered Location
1Z4657266891729311
April 30, 2020 at 6:51 PM from Wyoming, MI, United States
Friday, May 15, 2020 at 12:09 PM
Surrey, Canada
Set Two
The documents in Set Two consist of:
A commercial invoice, dated March 6, 2018, 11:12:00 AM, issued by Nortek;
A letter from UPS, signed by its “Director of Enterprise Account Sales,” to Nortek, dated January 10, 2018, “certify[ing] that the merchandise corresponding to the bills of lading identified on the attached report . . . was exported on the identified dates and to the identified consignees in said report”; and
Page 18 of 872 of the report referenced in the letter from UPS to Nortek, dated January 10, 2018 (“Nortek Export Report”).
Specifically, the commercial invoice issued by Nortek and the Nortek Export Report provided by UPS include the following information:
Information on Nortek Commercial Invoice:
Seller
Item Number
Item Description
Quantity
UoM
HTS
Tracking Number
Nortek
5919 Sea Otter Place, Suite 100, Carlsbad, CA 92010
2GIG-3GTLX-A-GC2
1GIG Alarm.com TELUS 3G Cell Radio for GC2 with 2GIG-ANT3X Antenna
46
EA
8517.62.0050
1ZE49R956836945332
Final Destination
Sales Order Number
Tri-Ed Dist. (Calgary 905)
6115 3rd Street SE
Unit D13
Calgary AB T2H 2L2
Canada
SO-3184688
Information on Nortek Export Report:
Shipper Reference
Import Country
Proof of Delivery Date
Tracking Number
SO-3184688
CA
9/29/2017
1ZE49R956836945332
ISSUE:
Whether the documents in Set One are sufficient to establish proof of exportation under 19 C.F.R. § 190.72, of the article identified in the Nortek commercial invoice as “620-101293 Apex-II Module Assy”, to Canada, for drawback purposes.
Whether the documents in Set Two are sufficient to establish proof of exportation under 19 C.F.R. § 190.72, of the articles identified in the Nortek commercial invoice as “2GIG-3GTLX-A-GC2 2GIG Alarm.com TELUS 3G Cell Radio for GC2 with 2 GIG-ANT3X Antenna”, to Canada, for drawback purposes.
LEGAL ANALYSIS:
The Tariff Act of 1930, and as amended pursuant to Section 906 of the Trade Enforcement and Trade Facilitation Act of 2015 (“TFTEA”) (Pub. L. 114-125, Feb. 24, 2016, 130 Stat. 122), provides for drawback. See 19 U.S.C. § 1313. Drawback, as authorized for payment by CBP, is the refund of certain duties, taxes, and/or fees paid on imported merchandise, which were imposed under Federal law upon entry or importation. See 19 C.F.R. § 190.2. Drawback is a privilege, not a right, subject to compliance with the prescribed rules and regulations. See 19 U.S.C. § 1313(l)(1); see also Chrysler Motors Corp. v. United States, 14 Ct. Int'l Trade 807, 816 (1990), aff'd, 945 F.2d 1187 (Fed. Cir. 1991); Guess? Inc. v. United States, 944 F.2d 855, 858 (1991) (“We are dealing [in discussing drawback] instead with an exemption from duty, a statutory privilege due only when the enumerated conditions are met.”).
One of the conditions that must be met when claiming drawback based on the exportation of an article, is that sufficient evidence must be provided to establish the article’s exportation. See e.g., 19 U.S.C. § 1313(i) (“A person claiming drawback under this section based on the exportation of an article shall provide proof of exportation of the article.”). Under 19 U.S.C. § 1313(i), claimants whose drawback-eligible goods are exported (in lieu of destruction) must provide proof of the exportation of the article that “establish[es] fully the date and fact of exportation and the identity of the exporter” and “may be established [, inter alia,] through the use of records kept in the normal course of business[.]” Id. 19 C.F.R. § 190.72, one of the implementing regulations, provides additional details.
19 C.F.R. § 190.72(a) lists the export data required as part of a complete drawback claim:
(a) Required export data. Proof of exportation of articles for drawback purposes must establish fully the date and fact of exportation and the identity of the exporter by providing the following summary data as part of a complete claim (see § 190.51) (in addition to providing prior notice of intent to export if applicable):
(1) Date of export;
(2) Name of exporter;
(3) Description of the goods;
(4) Quantity and unit of measure;
(5) Schedule B number or HTSUS number; and
(6) Country of ultimate destination.
19 C.F.R. § 190.72(b) additionally lists examples of supporting documentary evidence to establish exportation as part of a complete drawback claim. These documents may be records kept in the ordinary course of business, and “include, but are not limited to:”
(1) Records or other documentary evidence of exportation (originals or copies) issued by the exporting carrier, such as a bill of lading, air waybill, freight waybill, Canadian Customs manifest, and/or cargo manifest;
(2) Records from a CBP-approved electronic export system of the United States Government (§ 190.73);
(3) Official postal records (originals or copies) which evidence exportation by mail (§ 190.74);
(4) Notice of lading for supplies on certain vessels or aircraft (§ 190.112); or
(5) Notice of transfer for articles manufactured or produced in the United States which are transferred to a foreign trade zone (§ 190.183).
Thus, under 19 C.F.R. § 190.72, proof of exportation is required in the form of export summary data that is provided as part of a complete drawback claim filed with CBP. See 19 C.F.R. § 190.72(a); see also 83 Fed. Reg. 37892 (Aug. 2, 2018) (Notice of proposed rulemaking on Modernized Drawback explaining, inter alia, that “[u]nder TFTEA-Drawback, proof of exportation is required in the form of export summary data that is provided as part of a complete drawback claim filed with CBP.”). However, the underlying supporting records must fully prove the exportation through records that may be kept in the normal course of business. See 19 C.F.R. § 190.72(b); see also 83 Fed. Reg. 37892 (Aug. 2, 2018) (stating the same).
Moreover, as the Nortek commercial invoices indicate that article(s) in this case will be exported to Canada, in addition to the requirements set forth in 19 C.F.R. § 190.72 for proof of exportation, the regulations implementing the Agreement Between the United States of America, the United Mexican States, and Canada (“USMCA”) in 19 C.F.R. Part 182, namely here, 19 C.F.R. § 182.47, for evidence of exportation, may also need to be met should the article(s) be a “good subject to USMCA drawback” within the meaning of 19 U.S.C. § 4534. See e.g., 19 C.F.R. § 182.41 (“This subpart [ ] applies to any good that is a ‘good subject to USMCA drawback’ within the meaning of 19 U.S.C. 4534” and “[t]he requirements and procedures set forth in this subpart . . . are in addition to the general definitions, requirements, and procedures for all drawback claims set forth in part 190 of this chapter[.]”). The ruling request does not provide enough information regarding whether the article(s) are good(s) subject to USMCA drawback such that, for example, 19 C.F.R. § 182.47(b)(2)(ii)(E) applies. As such, we do not take a position on this issue and limit our ruling to proof of exportation under 19 C.F.R. § 190.72. However, to be clear, additional evidence of exportation may be required under 19 C.F.R. Part 182 should the article(s) be a “good subject to USMCA drawback” within the meaning of 19 U.S.C. § 4534.
In light of the above, we will look, in turn, at whether the documents in Set 1 or Set 2 are sufficient to establish proof of exportation under 19 C.F.R. § 190.72 of the article(s), specifically the “620-101293 Apex-II Module Assy” and “2GIG-3GTLX-A-GC2 2GIG Alarm.com TELUS 3G Cell Radio for GC2 with 2 GIG-ANT3X Antenna” identified in the respective Nortek commercial invoice, to Canada, for drawback purposes.
Sufficiency of Set 1 Documents Under 19 C.F.R. § 190.72
The documents in Set 1 are not sufficient to establish proof of exportation under 19 C.F.R. § 190.72 of the article identified in the Nortek commercial invoice for drawback purposes. The documents in Set 1 consist of a commercial invoice issued by Nortek, and a proof of delivery issued by UPS along with tracking details. The tracking number identified on the Nortek commercial invoice and the “shipping method” of “UPS® Standard,” matches the tracking number identified on the UPS proof of delivery and tracking details, but as discussed below, this fails, at least, to establish fully the fact of exportation of the article and the identity of the exporter.
A. Fact of Exportation of the Article
While the commercial invoice provides, inter alia, a description of the goods, quantity and unit of measure, and the HTSUS number, the commercial invoice, by itself, is not sufficient to establish the fact of export. See Headquarters Ruling (“HQ”) H155515 (dated August 15, 2014) (pre-TFTEA) (in which CBP determined that invoices, by themselves, do not show date, time, and fact of export.). Thus, next, we turn to the UPS proof of delivery and tracking details that were also provided as part of the documents in Set 1.
The UPS proof of delivery and tracking details provide only the weight of the package delivered (the commercial invoice did not provide the weight of the article to be exported) and did not provide a description of the goods, quantity and unit of measure, and the HTSUS number. Looking at the commercial invoice along with the UPS proof of delivery and tracking details, we find that there is no information related to the article identified in the commercial invoice that is also included in the proof of delivery and tracking details that permits us to establish that the article shipped and delivered by UPS was, in fact, the article identified in the commercial invoice. As such, we find that the documents in Set 1 fail to establish fully the fact of exportation of the article identified in the commercial invoice.
This is in comparison to the situations where CBP has found that sufficient information was provided to establish the fact of exportation for an article. For example, HQ 229941 (dated October 14, 2003) (pre-TFTEA) noted that:
With regard to the fact of exportation, while the description of the merchandise on the b/l and the B3 does not fully describe the exported merchandise, the quantity of the merchandise shipped and entered can be matched between the invoice, bill of lading and the B3. The value of the merchandise can also be matched between the invoice and the B3. The product breakdown attached to the invoice also identifies the exported sets as “Gift 1C-S01”, and identifies the individual components of the sets. The information pertaining to the quantity and value of the merchandise exported is sufficient to determine what was exported.
Id. at 7. As shown, in HQ 229941, there were at least a few pieces of information related to the exported merchandise that could be cross referenced between the various documents to establish what was exported. However, here, there is no information related to the article that can be cross referenced between the commercial invoice and the proof of delivery and tracking details.
B. Identity of the Exporter
The issuer of the commercial invoice is identified as Nortek with an address in Carlsbad, California. While the ruling request implies that Nortek is the exporter of the article identified in the commercial invoice, the UPS proof of delivery and tracking details do not corroborate this. The tracking details show that shipped location was Wyoming, Michigan and not Carlsbad, California, which is the only address that was provided for Nortek. There are no additional documents or explanation reconciling this discrepancy. Accordingly, we also find that the documents in Set 1 fail to establish fully the identity of the exporter.
Sufficiency of Set 2 Documents Under 19 C.F.R. § 190.72
The documents in Set 2 are also not sufficient to establish proof of exportation under 19 C.F.R. § 190.72 of the article identified in the Nortek commercial invoice for drawback purposes. The documents in Set 2 consist of a commercial invoice, dated March 6, 2018, issued by Nortek, a letter from UPS to Nortek, dated January 10, 2018, and the Nortek Export Report. The tracking number identified on the Nortek commercial invoice, which also identifies the “shipping method” as “UPS® Standard,” matches the tracking number identified on the Nortek Export Report. The sales order number identified on the Nortek commercial invoice also matches the “shipper reference” identified on the Nortek Export Report. However, this still fails, at least, to establish fully the fact of exportation of the articles.
Like the commercial invoice in Set 1, the commercial invoice in Set 2 also provides, inter alia, a description of the goods, quantity and unit of measure, and the HTSUS number. However, similar to the defects found in the Set 1 documents, the letter from UPS to Nortek and the Nortek Export Report in Set 2 also do not provide enough information related to the articles to permit us to establish that the articles identified in the commercial invoice were in fact the articles that were delivered to Canada as per the Nortek Export Report. Neither of those documents contain information related to the articles delivered such as a description of the goods, quantity and unit of measure, or the HTSUS number that would provide some sort of confirmation that the UPS shipment delivered to Canada contained the articles identified in the commercial invoice.
Moreover, while the letter from UPS to Nortek states that it “certif[ies] that the merchandise corresponding to the bills of lading identified on the attached report [i.e., the Nortek Export Report] was exported[,]” none of the columns in the Nortek Export Report explicitly refer to bills of lading and the bill of lading number identified on the commercial invoice issued by Nortek is absent from the Nortek Export Report.
Thus, we find that the documents in Set 2 fail to establish fully the fact of exportation of the articles identified in the commercial invoice.
HOLDING:
Neither the documents in Set One nor the documents in Set Two are sufficient to establish proof of exportation under 19 C.F.R. § 190.72, of the article identified in the Nortek commercial invoice, to Canada, for drawback purposes.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruing letter, either directly, by reference, or by implication, is accurate and complete in every material respect.” If any fact in the transaction varies from the facts stipulated to herein, this decision shall not be binding on CBP, as provided for in 19 C.F.R. § 177.9(b).
Sincerely,
Monika R. Brenner, Interim Chief
Entry Process and Duty Refund Branch