HQ H082576
Jan. 18, 2012
DRA-1-06 OT:RR:CTF:ER H082576 ASL
John M. Peterson, Esquire
Neville Peterson LLP
17 State Street – 19th Floor
New York, NY 10004
Dear Mr. Peterson:
This is in response to your letter dated October 26, 2009, on behalf of your client Michelin North America, Inc. (“Michelin”) requesting a ruling as to sufficient proof of export for drawback claims. We also note that you requested confidential treatment of information identifying Michelin’s customers, prices and specific products sold.
FACTS:
Michelin imports tires produced by Michelin affiliates or suppliers around the world. Michelin sells tires to a customer that has a plant in Mexico. Michelin delivers tires to a freight forwarder in Texas that is retained by its customer. The freight forwarder arranges for the merchandise, which the importer owns, to be exported to its plant in Mexico. Michelin’s customer has assigned to Michelin the right to claim 19 U.S.C. § 1313(j)(1) direct identification unused merchandise drawback with respect to the exported tires.
Michelin’s customer files a single consolidated pedimento (Mexico’s entry document), covering all of the company’s imports into Mexico in a single day with Mexican Customs (Hacienda). This consolidated pedimento includes merchandise other than Michelin tires. Michelin’s customer considers the information concerning these other goods and vendors confidential, and is unwilling to share it with Michelin or other vendors. For this reason, the customer is unwilling to provide Michelin with copies of its consolidated pedimentos as proof of export.
The customer does obtain, with respect to each truck crossing into Mexico, a document known as a Relacion de Factura (RDF), which provides identifying data and is stamped by Mexican Customs to confirm the arrival of the merchandise in Mexico. A sample copy of an RDF, together with the commercial invoice for the goods shipped on the RDF, was attached to your letter. You state that the RDF, which is prepared by a Mexican Customs House Broker, contains pertinent information including importer name, address; and tax identification number;
pedimento number; pedimento type; quantity of goods; invoice number; invoice date; vehicle identifying data; container seal numbers; invoice values; currency used in invoice; document number; description of merchandise; unique bar code/glyph assigned by Hacienda. You state that the RDF is twice stamped by Mexican Customs. First, it is stamped at the Nuevo Laredo port of entry and stamped again upon arrival at the importer’s factory.
In addition, you state that Michelin intends to use the Exporter’s Summary Procedure when filing its drawback claims, and will submit with its claim a Chronological Summary of Export. This summary will be in the format specified by Section 191.73 of the CBP regulations (19 C.F.R. § 191.73).
ISSUE:
Whether the RDF will satisfy the requirements for proof of exportation for purposes of claiming drawback.
LAW AND ANALYSIS:
Under 19 U.S.C. § 1313(j)(1), drawback is authorized if imported merchandise on which was paid any duty, tax, or fee imposed under federal law because of its importation is, within three years of the date of importation, exported or destroyed under CBP supervision and was not used in the United States before such exportation or destruction. In general, the proof of exportation requires evidence of intent for the merchandise at issue to unite with the mass of things belonging to that of another country, and evidence that the merchandise left the United States. See 19 C.F.R. § 101.1. The documents listed in 19 C.F.R. § 191.72(a) demonstrate the intent for the subject merchandise to join the commerce of another country. CBP previously stated that “such intent is shown by the invoices, packing lists and payment records (provided there are no discrepancies among the documents). Evidence that the merchandise left the United States could consist of, for example, a bill of lading indicating that the goods are on an outbound vessel or aircraft, or that the goods were entered into a foreign government’s Customs.” HQ 229566 (Sept. 17, 2002) (citation omitted). The CBP regulations contained in 19 C.F.R. § 191.72 require evidence of exportation as follows:
Exportation of articles for drawback purposes shall be established by complying with one of the procedures provided for in this section (in addition to providing prior notice of intent to export if applicable. (see §§ 191.35, 191.36, 191.42, and 191.91 of this part)). Supporting documentary evidence shall establish fully the date and fact of exportation and the identity of the exporter. The procedures for establishing exportation outlined by this section include, but are not limited to:
Actual evidence of exportation consisting of documentary evidence, such as an originally signed bill of lading, air waybill, freight waybill, Canadian Customs manifest, and/or cargo manifest, or certified copies thereof, issued by the exporting carrier;
Export summary (§ 191.73);
Certified export invoice for mail shipments (§ 191.74);
Notice of lading for supplies on certain vessels or aircraft (§ 191.112); or
Notice of transfer for articles manufactured or produced in the United States which are transferred to a foreign trade zone (§ 191.183).
The regulation by its terms does not require a specific form. The regulation describes acceptable documentary evidence if that evidence identifies the goods in issue and shows the fact of exportation and the date of exportation. Therefore, any procedure used to establish export, whether or not included in (a) through (e) outlined above, must “establish fully the date and fact of exportation.” See also Customs Directive No. 3740-009, Drawback Proof of Export Requirements (explaining that proofs of export must individually or collectively contain all of the legal elements required by the CBP regulations).
Moreover, for exportations to Canada or Mexico, in addition to the requirements set forth in 19 C.F.R. § 191.72, the regulations implementing the North American Free Trade Agreement (NAFTA) in 19 C.F.R. Part 181 must be followed. In HQ 228272 (November 8, 1999), Customs stated that “allowance of drawback based on exportations to Canada or Mexico, is also subject to the regulations implementing the [NAFTA] in 19 C.F.R. Part 181.” As the tires are to be exported to Mexico, the additional requirements in 19 C.F.R. Part 181 for evidence of export must be met. Additional requirements for same condition drawback are found in 19 C.F.R. § 181.47(b)(2)(ii), which requires further evidence of exportation under 19 C.F.R. § 181.47(b)(2)(ii)(G):
Acceptable documentary evidence of exportation to Canada or Mexico shall include 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. 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.
In the instant case, you state that the importer is unwilling to provide Michelin with a copy of its Mexican import pedimento. Therefore, you have asked that we determine whether the RDF document is sufficient proof of exportation to Mexico for drawback purposes. You submit that the RDF, corroborated by the commercial invoices, constitutes sufficient proof of exportation of goods to Mexico. You state that the RDF clearly bears stamps affixed by Mexican Customs that confirm not only the time and date of importation of the merchandise into Mexico, but also receipt of the goods at the importer’s factory located approximately 26 km inland. Furthermore, you submit that the description of the merchandise and the supporting documents, such as the invoices, are contained in the RDF. Therefore, you believe that the RDF is sufficient proof of exportation for drawback purposes.
The RDF and accompanying commercial invoices would meet the proof of export requirements under 19 C.F.R. § 191.72. When an import is released from Mexican customs, the printout will read “DESADUANAMIENTO LIBRE” (cleared customs), or “CUMPLIDO” (completed), which indicates that the merchandise has entered Mexico. The Mexican Customs stamp affixed to the RDF would establish the date and fact of export if either the “DESADUANAMIENTO LIBRE” or “CUMPLIDO” stamps are present. Also, the attached invoices properly establish the identity of the exporter. While the RDF does not provide a description of the merchandise, it does reference the invoice numbers and the total quantity and value of all the merchandise found on the invoices. Therefore, when the listed quantity and value of the merchandise found on the RDF equals the total quantity and value actually found on the attached invoices, a sufficient nexus is created. Finally, if the original RDF is not provided, the copy must be certified as a true and accurate copy by a U.S. entity in order to provide a degree of authenticity to the submitted evidence. See HQ 230089 (May 26, 2004); HQ 228553 (May 8, 2000). Taken together, this information satisfies the requirements under 19 C.F.R. § 191.72. However, because these exportations are to Mexico, they are also subject to the regulations set forth in 19 C.F.R. Part 181. 19 C.F.R. § 181.47(b)(2)(ii)(G) requires that the identity and location of the ultimate consignee of the exported goods be identified. The applicant stated that the ultimate consignee, the same as the importer, would appear on the delivery portion of the RDF along with a stamp certifying delivery was made at the importer’s factory. This information would satisfy the requirements under section 181.47. Based on the documentation submitted with your request, the RDF along with the associated commercial invoices, are sufficient documentary evidence to establish proof of export to Mexico for drawback.
In conclusion, alternative methods of establishing exportation for purposes of drawback are permitted under 19 C.F.R. § 191.72 and the documentation you submitted satisfy the specified methods of establishing exportation in 19 C.F.R. § 191.72(a) through (e) and 19 C.F.R. § 181.47. Therefore, the RDF and supporting commercial invoices are sufficient to establish proof of exportation for purposes of drawback.
HOLDING:
The RDF and supporting commercial invoices in this case constitute sufficient proof of exportation of the tires into Mexico for purposes of drawback. If the information on the RDF and supporting invoices vary from the facts stipulated to herein, this decision shall not be binding on Customs and Border Protection as provided in 19 C.F.R. § 177.2(b)(1), (2) and (4), and § 177.9(b)(1).
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division