- Type : • HTSUS :
-
Related:
228008
DRA-2-01, DRA-4
OT:RR:CTF:ER W231539 WGR
Port Director
U. S. Customs and Border Protection
6601 NW 25 Street
Miami, FL 33122
Attn: Ruth Parry, Senior Import Specialist
RE: Protest 5201-04-100607
Dear Madam/Sir:
This is in response to the request for further review of the above protest filed by Washington International Insurance Co., the surety for the bond covering the entries for which SFE Citrus Processors’ (“SFE”) claims for duty drawback was denied. The drawback claims and subsequent protest were filed at Miami. This decision is being sent to your office because it is understood that your office became responsible for the protest as a result of the closing of the Miami Drawback Center.
FACTS:
The protest involves six substitution manufacturing drawback claims filed from October 1, 1998 to November I, 1999. SFE processes the orange juice for which it claims drawback. It sells this orange juice to Adams Japan, which then resells it to Nissho Iwai. On the first six exports the exporter was Nissho Iwai; Adams Japan was the exporter of the merchandise on the seventh export.
The claims were liquidated July 2, 2004, without drawback for failure to provide satisfactory manufacturing records. The claims were for duty paid on imports of concentrated orange juice for manufacturing. The exports also consisted of concentrated orange juice, albeit the claimant had asserted that the exported concentrated juice had essential oils and essences added to the imported and substituted concentrated juices so as to create a new article for the purpose of drawback. However, the claimant failed to produce processing records to support those assertions and the claims were denied. Since accelerated drawback was paid, CBP demanded repayment of the accelerated payments from the protestant surety on August 31, 2004, following denial of the claims. The protestant surety filed this protest on November 29, 2004, 90 days after the CBP demand.
The protestant abandoned its reliance on 19 USC §1313(b) and asserted that the claims met the requirements for drawback under 19 USC §1313(j)(2) by letter dated March 30, 2006. The protestant asserted that the provisions of 19 USC §1313(r)(2), which allows a claim that is filed under one drawback provision to be considered under another drawback provision, applied to this situation.
We are treating drawback claim TE2-XXXX127-2 (Claim 127-2) as representative of the six claims that are the subject of this protest. Claim TE2-XXXX127-2 designated the concentrated orange juice for manufacture (COJM ) entered under import entry 032-XXXX522-0 (522-0). The claim listed seven export shipments covering the merchandise said to qualify for drawback. The following facts illustrate the details of the shipments and identify the characteristics of the merchandise.
The COJM covered by entry 522-0 consisted of 209,203 gallons (5,543,433 liters) of frozen COJM, which was imported on December 23, 1997. The file contains a certificate of delivery from the importer to the protestant certifying delivery on the date of importation. The CF 7501 lists the COJM as classified in subheading 2009.11.0060, HTSUS, and an invoice shows the value as approximately $1,500,000. The file contains the USDA score sheet on samples of the imported COJM. The imported COJM score had the following values: brix 65.99-66.57, acid 3.96-4.04, ratio 16.4-16.8, color number 36.9-37.5, color score 38, defect score 20, and flavor score 37. The total score comprising the color, defects and flavor is 95.
The drawback claim asserts 2,470,735.69 single strength liters of bulk concentrated orange juice were exported on seven exports during the period from April 16, 1998 to June 20, 1998, and was filed October 1, 1998.
The first listed export is identified as bill of lading number AUKO-980414 and covers 168 packages containing 58,412.34 (29,379.07 and 29,033.27) pounds solids (214,883.1 single strength liters) of merchandise classified in subheading 2009.11.0060, HTSUS, and exported to Kobe, Japan. The protestant’s invoice 7867 to Adams Japan contains a handwritten notation “Kobe 29033” and cross-references purchase order number 980203NI-2 and AUKO-980414 and the vessel M/V Chetumal. The invoice identifies the merchandise as “ALL FLA ORG 94 SC 336”. The protestant’s invoice 7857 to Adams Japan contains a handwritten notation “Kobe 29379” and cross-references order 980203NI-2. The invoice identifies the merchandise as” ALL FLA ORG 94 SC DR -252”. There are two invoices dated April 16, 1998 from Adams Japan to Nissho Iwai American Corp., which cross-reference purchase order 980203NI-2 covering concentrated orange juice and identify the vessel M/V Chetumal. One Adams Japan invoice to Nissho Iwai American Corp covers 168 drums. The other covers 504 drums. There are eight order confirmations, 1608 through 1615, each of which covers 84 drums for a total of 672 drums, which matches the amounts covered by the two invoices (168+504=672). Each drum is identified by a number and those drum numbers are listed in USDA score sheets dated March 21 and 22, 1998. The USDA score sheets show that the orange juice concentrate was grade A with a score of 94.
The second export shipment covers 504 drums also shipped on the M/V Chetumal for Yokohama on the same voyage and is covered by bill of lading number AUYO-980413. The sale from the protestant to Adams Japan also is covered by protestant’s invoices 7867 and 7857. The second Adams Japan invoice of April 16, 1998, covers 504 drums. The USDA score sheets show that the orange juice concentrate was grade A with a score of 94 covered by both bills of lading for the M/V Chetumal.
The third export is identified by bill of lading AUYO-980421 and covers 168 drums. The protestant’s invoice 7892 dated April 20, 1998, to Adams Japan covers 168 drums shipped on the vessel Alligator Reliance and cross-references AUYO-980421. Invoice number 7892 identifies the merchandise as “ALL FLA ORG 94 SC DRMS”. The Adams Japan invoice to Nissho-Iwai dated April 23, 1998, covers 168 drums shipped on the vessel Alligator Reliance and cross-references purchase order 980203NI-4. Konoike Transport bill of lading 09-1603 covers 84 drums of frozen orange juice concentrate that are identified by drum number and cross-references the vessel Alligator Reliance. Konoike Transport 09-1604 covers 84 drums of frozen orange juice concentrate that are identified by drum number and cross-references the vessel Alligator Reliance. USDA score sheets dated February 6, 1998, February 18, 1998, March 21, 1998 and March 22, 1998, covered 76 of the drums identified on the Konoike Transport bill of lading 09-1604. The score sheets did not cover eight drums with the numbers 088597-088603, 09841 and 100118. No USDA score sheets were provided for any of the 84 drums identified on Konoike Transport bill of lading 09-1603. The USDA score sheets for the 76 drums that were scored show that the orange juice concentrate was grade A with a score of 94.
The fourth export is identified by bill of lading AUYO-980503 and covers 420 drums. The protestant’s invoice 7941 to Adams Japan cross-references the vessel CGM Palcal and identifies the merchandise as “ALL FLA ORG 94 SC DR 420.” The protestant’s invoice 7946 to Adams Japan cross-references the vessel CGM Palcal and AUYO-98503 and identifies the merchandise as “ALL FLA ORG 94 SC DRMS.” Invoice 7946 is said to correct invoice 7941. Adams Japan invoice to Nissho Iwai dated May 7, 1998, covers 420 drums all of which is Florida concentrated orange juice that was shipped on the vessel CGM Palcal. All three invoices identify purchase order 980203NI-7. Konoike Transport bills of lading 09-1662 and 09-1663 are covered by booking number 638 086 100 on the vessel CGM Palcal and identify the merchandise as all Florida concentrated orange juice. The bills of lading list the drum numbers of the merchandise. However, there only were three lists of 84 drum numbers provided: 112074 to 112157 and 112190 to 112195, 112158 to 112241 and 112253 to 112256 and 108803 to 108864, 108898, 108903 and 108904, 112242 to 112252,112257 to 112264. There is a USDA score sheet dated April 17, 1998, covering drum numbers 112113 to 112672, which states that the drums were grade A with a score of 94.
The fifth export is identified by bill of lading AUKO-980504 and covers 252 drums. The protestant’s invoice 7940 to Adams Japan cross-references the vessel CGM Palcal, identifies the merchandise as “ALL FLA ORG 94 SC DR 252” and is notated AUKO-98504. Adams Japan invoice to Nissho Iwai dated May 7, 1998, covers 252 drums of all Florida concentrated orange juice that is to be shipped on the vessel CGM Palcal and references purchase order 980203NI-7. All three invoices reference order 980203-NI-7. Konoike Transport bills of lading 09-1666 and 09-1667 cross-reference booking number 638 086-208 and are said to cover 84 and 168 drums of concentrated orange juice respectively. The corresponding bills of lading list 84 drums identified by drum number. Although the list for bill of lading 09-1667 refers to 168 drums, the list contains only 84 drums (112293 to 112376). The bill of lading list for 09-1666 covers 84 drums (112377 to 112456 and 112462 to 112465). USDA score sheet dated April 17, 1998, covers drums 112113 to 112672 and states that the orange juice was grade A with a score of 94.
The documents covering the fourth and fifth exports are mismatched, as noted above. Both exports were on the same voyage of the same vessel. The COJM identified by car numbers (i.e. MOLU5124340) listed on bill of lading AUKO-980504 were covered by bill of lading AUYO-980503 and the COJM identified by car numbers listed on bill of lading AUYO-980503 were covered by bill of lading AUKO-980504. The incorrect transposition appears to be the result of the vessel booking numbers. However, a comparison of the shipping manifests that list the individual drum numbers shows that the total number of drums claimed (252+420=672) is correct and the drum numbers on the respective shipping manifests show the drums were counted only once.
The sixth export is identified by bill of lading AUKO-980605 and covers 336 drums. The protestant’s invoice 8129 to Adams Japan refers to the Seaside Trucking, identifies the merchandise as “94 SC ALL FLA CM 336 DRUMS” and references order 980515NI1K. Adams Japan invoice to Nissho Iwai dated June 9, 1998, covers 336 drums of all Florida concentrated orange juice that was shipped on the vessel Mathilde Maersk and references order 980515NI-1K. Seaside Trucking bills of lading 09-1835, 09-1836, 09-1837 and 09-1838 each cover 84 drums of concentrated orange juice consigned to the vessel Mathilde Maersk and list the drum numbers. The list for 09-1835 covers drums 120121-120124, 120138-120162, 120164-120169, and 120172-120221. The list for 09-1836 covers drums 120222-120310. The list for 09-1837 covers drums 120388-120391 and 120400-120485. The list for 09-1838 covers drums 120080-120120, 120126-120137, 120460-120463, 120480-120481 and 120486-120515. USDA score sheet dated May 20, 1998, covered drums 119894 to 120513 and states that the orange juice was grade A with a score of 94.
The seventh export is identified by bill of lading EISU405800074862 and covers 944 pails. The protestant’s invoice 8218 to Adams Japan states that it shipped 944 “HV 50° FCOJ PAILS” on the vessel Ever Result, and references order 980528AJI and the corresponding invoice from the freight forwarder references EISU405800074862. Adams Japan invoice to Marugen FPJ Co. dated June 21, 1998, references order 980528AJI and covers “Herders Vintage 50° FCOJ in 5 Gallon Pails” that were shipped on the vessel Ever Result. USDA score sheet dated June 1, 1998, covers 944 5-gallon pails of Herders Vintage and states that the orange juice was grade A with a score of 94. The protestant’s confirmation of order 1951 covers 944 5-gallon pails that were consigned to the vessel Ever Result.
The export records covering claims TE2-XXXX128-0 (claim 128-0) and TE2-XXXX130-6 (claim 130-6), with one exception, describe the exported merchandise as “U.S. All Florida Orange Juice,” “All Florida Conc. Orange Juice,” AF ORG CONC 94 SC EXPT” and “All Florida Concentrated Orange Juice.” Score sheets prepared by the USDA show that the merchandise was Grade A with score of 94. However, Claim 130-6 contains an invoice dated April 1,1999, which covers Valencia concentrated orange juice and white grapefruit pulp cells, but these are not part of the drawback claim. That invoice covers a shipment of 18,855.10 pounds solids of orange juice shipped on the vessel “Ever Develop” on April 12,1999. The Florida Global Citrus Ltd. invoice on that shipment covers 18,855 units of Valencia and grapefruit pulp cells, but only the Valencia orange juice is listed on claim 130-6.
The file contains a notice of intent to export with benefit of drawback filed by the claimant for each of the seven export shipments. The notice of intent to export lists the ocean bill of lading number, the merchandise shipped and the vessel by name and voyage. The back side of each notice of intent to export with benefit of drawback contains a waiver of the right to drawback by the respective exporter. On the first six export shipments, Nissho Iwai is listed as the export shipper on the Shipper’s Export Declaration and the shipper on the ocean bills of lading. Adams Japan is shown as the export shipper on the Shipper’s Export Declaration and the shipper/exporter on the seventh export shipment. However, the printed form endorsement simply stated that the exporter waived the right to drawback on the articles and did not contain the language in 19 CFR §191.82 with respect to assignment of the drawback right to any other person. As noted, the file contains a Shipper’s Export Declaration for each of the seven export shipments that lists the ocean bill of lading number, names the vessel and identifies the merchandise.
ISSUES:
Whether a surety on a bond that was issued to secure performance under 19 CFR §113.65 for repayment of money paid under the accelerated payment program may protest the denial of a claim for drawback and assert entitlement to drawback on that claim under 19 USC §1313(r)(2)?
Whether 19 USC §1313(r)(2) permits a change in the basis of a drawback claim from 19 USC §1313(b) and (j)(2)?
Whether the evidence is sufficient to show entitlement to drawback under 19 USC §1313(j)(2)?
LAW AND ANALYSIS:
The claim was liquidated with a denial of drawback on July 4, 2004, and the protest against that denial was timely filed by the surety protestant on November 29, 2004, pursuant to 19 CFR §174.12(e). A surety is jointly and severally liable with the principal on a bond posted to secure performance of the principal on a customs transaction. In CSD 81-3 (June 4, 1980), CBP determined that a surety on a bond stands in the same position as the bond principal vis-a vis the government and held that a surety should be treated in exactly the same manner as the principal with respect to a petition for relief on a liquidated damages demand. The decision held that if the facts submitted by a surety would justify cancellation of the liquidated damages demand when submitted by the principal, the same degree of relief should be extended to the surety. In CSD 81-223 (May 28, 1981), CBP determined that a surety was equally liable as its principal for any duty due up to the bond amount. There is no reason why the surety on a drawback bond would be treated differently.
Under 19 CFR §191.92(d), a drawback claimant who is approved for and then requests accelerated payment before liquidation of a drawback claim must post a bond to guarantee repayment of any amount paid in error. Liquidation of the drawback claim sets the final amount determined to be paid on a drawback claim under 19 CFR §191.81(e). Under 19 USC §1514(a)(6), the refusal to pay drawback is a decision that is subject to protest. Section 1514(c)(3) provides that a surety that has an unsatisfied legal claim under its bond has the right to protest. That is, a surety with an unsatisfied legal claim on its bond posted to guarantee against an overpayment of drawback stands in the same position as the drawback claimant and has the right to present information to show that no overpayment occurred. Therefore, the surety, Washington Int. Insurance Co., had a right to protest the denial of SFE’s drawback claims.
In this case, SFE Citrus Processors doing business as Florida Global Citrus (hereafter SFE) filed claim 127-2 and requested accelerated payment and received that payment. The claim was filed under 19 USC §1313(b), which provides for drawback if imported duty-paid merchandise or substitute merchandise of the same kind and quality is used to manufacture articles that are thereafter exported. The protestant is the surety on the bond that was posted to secure repayment of an amount determined on liquidation to have been paid in error. In this case, because CBP determined that SFE failed to provide adequate manufacturing and exportation records, the drawback office liquidated the claim without drawback. As a result of that denial of drawback on liquidation, the drawback office determined that the amount paid to SFE as an accelerated drawback payment was paid in error and demanded repayment from the protestant surety on the bond posted for that purpose.
Since the protestant was unable to locate any of SFE’s records that covered processing by SFE of either the imported COJM or the exported COJM, but located records of the specifications applicable to the imported and exported COJM, the protestant asserted that the exported COJM qualified for drawback under 19 USC §1313(j)(2) rather than under 19 USC §1313(b) as originally filed. The protestant asserted that 19 USC §1313(r)(2) allowed for drawback to be paid on the claim. Except for the change in the basis of the claim, nothing else with respect to the claim changed. That is, the imported COJM that was designated as the basis for drawback and the COJM that was identified as being exported to satisfy the exportation requirement that was the basis for the claim. COJM can be both a starting material and an intermediate material in orange juice production. It is possible that the COJM at issue in this case might be eligible for drawback under either 19 USC §§1313 (b) or (j)(2) so long as the statutory and regulatory requirements were met.
In pertinent part, section 1313(r)(2) provides that a claim filed pursuant to any subsection of section 1313 shall be deemed filed pursuant to any other subsection of section 1313 should it be determined that drawback is not allowable under the subsection as originally filed but is allowable under another subsection of section 1313. The purpose of the provision was to allow a claimant who was denied drawback under one provision to raise alternative claims under other provisions by protest. See H.Rpt. 103-361(1) 131 (Nov. 15, 1993). The statute was implemented by 19 CFR §191.12, which provided that, for a claim to be allowable under the substitute provision, the claim must meet the legal requirements of that provision. See also, T.D. 98-16, (63 Fed. Reg. 10970, 10979, Mar. 5, 1998) (providing an example of a situation where a claim filed under 19 USC §1313(b) was reasserted under 19 USC §1313(j), as in this case); and Notice of Proposed Rulemaking , 62 Fed. Reg. 3082, 3085 (Jan. 21, 1997). Since the claim was originally filed under substitution manufacturing drawback (19 USC §1313(b)) and pursuant to 19 USC §1313(r)(1), the protestant asserts that the claim properly would be filed under substitution unused merchandise drawback (19 USC §1313(j)(2)), analysis of the latter provision is required.
Eligibility under 19 USC §1313(j)(2) requires that merchandise be imported and duty paid and that merchandise that is commercially interchangeable with the imported merchandise be exported within three years after importation by the importer or by a person who receives the imported merchandise. Commercial interchangeability determinations are governed by 19 CFR §191.32. Under 19 USC §1313(r)(1), to be timely, a drawback claim must be filed within three years of exportation of the articles that form the claim.
Claim 127-7 designated COJM imported under import entry 522-0. As noted in the Facts Section above, the COJM was imported on December 23, 1997, and the seven exported shipments occurred during the period from April 16, 1998 to June 20, 1998. The requirement of 19 USC §1313(j)(2) that the merchandise must be exported within three years after importation of the designated merchandise was met. The COJM entered under import entry 522-0 was imported by Citrus Products, Inc. Citrus Products. Inc. issued a certificate of delivery dated January 7, 1998, certifying the delivery of the entire 209,203 gallons of COJM to SFE on December 23, 1997. Section 1313(j)(2)(C)(ii)(II) requires that the party claiming drawback receive the imported merchandise from the importer and obtain a certificate of delivery covering the imported merchandise. The CF 7501 and the certificate of delivery on the CF 331 demonstrate that SFE satisfied that requirement.
The field drawback office concluded that the claimant failed to meet the requirements of 19 USC §1313(j)(2) for several reasons. The drawback office determined that, except for exports of COJM that formed a substantial part of drawback claimed under entry TE2-00111306 (claim 130-6), most of the exported merchandise on which drawback was claimed appeared to be different articles with different uses than the designated merchandise. That is, the designated and exported merchandise were not shown to be commercially interchangeable pursuant to 19 CFR §191.32(c). Further, the drawback office found that no evidence of nonuse prior to export was provided. It also concluded that there was a failure to file a notice of intent to export or request a waiver of that requirement. The drawback office determined that the claimant failed to comply with the regulatory requirements with respect to transfer of merchandise and drawback rights. Finally, it held that the evidence of exportation on claims TE2-00111280 (claim 128-0) and TE2-00111306 (claim 130-6) was insufficient.
Contrary to the drawback office’s determinations, information available to CBP Headquarters demonstrates that the criteria of 19 USC §1313(j)(2) were satisfied for certain entries. The drawback office’s conclusion that, “except for exports of COJM that form a substantial part of drawback claimed under entry TE2- XXXX130-6, most of the exported merchandise on which drawback is claimed appears to be different articles with different uses than the imported designated merchandise,” is not supported by the evidence of claims 127-2, 128-0 and 130-6. The merchandise covered by the seven export shipments for representative claim 127-2 is described in various shipment documents as COJM. Further, the export records for the exported merchandise covered by claims 128-0 and 130-6 describe the merchandise as COJM. Because the USDA score sheets, sales invoices and export bills of lading, show the exported merchandise to be COJM, we now determine that merchandise on which drawback was claimed has the same use as the designated merchandise.
Denial of drawback under 19 USC §1313(j)(2) was also based on the finding that the exported merchandise was not commercially interchangeable with the imported designated merchandise. The imported designated merchandise covered by representative claim 127-2 was COJM, which was imported under import entry 522-0 and had a total USDA score of 95. The seven export shipments in claim 127-2 covered grade A orange juice concentrate with a USDA score of 94. CBP has previously held, in HQ 228008 dated April 30,1999, that in order to be commercially interchangeable, COJM must be USDA grade A with a minimum score of 94 or above under the industry standards set forth by the Cotton Exchange. Under 19 CFR §177.9(a), the principle of a ruling may be cited as authority in the disposition of transactions involving the same circumstances. Consequently under the principle set in HQ 228008, the imported designated and exported COJM covered by representative claim 127-2 meet that industry standard and are commercially interchangeable
The failure to produce evidence of nonuse also was cited as a basis for denial of drawback under 19 USC §1313(j)(2). While the statute prohibits use in the United States of the exported merchandise before exportation, it is not clear what was sought by the drawback office as evidence of nonuse. Representative claim 127-2 is based on seven exports. The first export is asserted to have occurred on April 16, 1998. The claimant’s sales invoice on the shipment is dated April 10, 1998. The USDA score sheets for the COJM covered by the invoices are dated March 21 and 22, 1998, about three weeks before the asserted export date. The periods between the USDA score sheet date and the claimant’s sales invoice date for the other export shipments reflects the same pattern: that is, a few weeks after the COJM was tested and scored by the USDA, the COJM was sold, as COJM, by the claimant. The proximity between the USDA testing and the claimant’s sale for export of the COJM and the truck manifests from the claimant’s premises at Auburndale, FL to the export ports of Charleston, SC and Miami, FL., which link the drums tested by the USDA to the drums sold and shipped to Japan further supports our conclusions that the COJM as tested was the merchandise that was shipped to Japan. Consequently, there is no evidence to deny drawback on the ground that the exported COJM was used in the United States prior to exportation.
The presence of the notices of exportation for each of the seven export shipments renders denial of the claim on a failure to provide the requisite notices untenable. Each of the seven notices of intent to export contained a waiver of drawback from the respective exporter to the claimant. However, the provisions of 19 CFR §191.82, as amended by TD 98-16, also require that a claimant who transfers merchandise to another person who is to export that merchandise under 19 USC §1313(j)(2) obtain a waiver of the exporter which waives the right to claim drawback and affirms that the exporter has not and will not assign the right to claim drawback on the particular export to any other party. The regulation implements the provision of 19 USC §1313(v), which prohibits the export of the same merchandise from being claimed multiple times. While the notices of exportation contained a waiver of the right to drawback from the exporter to the claimant, the notices did not contain the required affirmation of the exporter against assignment of right. Section 191.82 of the regulations permits an exporter to issue a blanket affirmation against assignment of right, but there is no evidence showing the requirement of the exporter’s affirmation against assignment of drawback rights on other claims was met by either the notices or a blanket certification by the exporter. However, where the claimant is the exporter, the regulation would not apply. Therefore, for those entries where the claims did not have either a blanket waiver or individual waivers, they did not comply with 19 CFR §191.82.
Evidence also supports the drawback office’s conclusion that the certificates of delivery were not filed in accordance with 19 CFR §191.34(b). As noted above, the designated imported COJM on representative claim 127-2 was imported under import entry 522-0 and the file contains a certificate of delivery from the importer to the drawback claimant. In pertinent part, 19 USC §1313(j)(2)(C)(II) provides that a claim may be filed by a person who received the imported merchandise from the importer under a certificate of delivery. CBP published a revised certificate of delivery on April 24, 1998, following revision of Part 191 by TD 98-16. The effective date of TD 98-16 was April 6, 1998. Since claim 127-2 was filed October 1, 1998, on exports that occurred from April 16, 1998 to June 20, 1998, compliance with the amendments to Part 191 made by TD 98-16 must be demonstrated. Section 191.34(b) of CBP regulations requires that a certificate of delivery covering the transfer of imported merchandise, duty-paid merchandise, commercially interchangeable merchandise or any combination thereof state that the transfer was pursuant to 19 USC §1313(j)(2) and that the merchandise not be designated for any other drawback purpose. This requirement was promulgated to prevent double substitution of the transferred merchandise. See Drawback, 62 Fed. Reg. 3082, 3085 (Jan. 21, 1997) (proposed rule) (explaining that the new regulation would “allow for multiple transfers of imported or substituted merchandise, but [would] not permit multiple substitutions”) (unchanged in the final rule, 63 Fed. Reg. 10970). The certificate of delivery, revised on April 24, 1998, allows a transferor to comply with the requirement of section 191.34(b) by checking the appropriate declaration. Prior to the publication of the revised form, the certificate would need to be annotated in order to satisfy the regulation.
The file does not contain a certificate of delivery from the claimant to Adams Japan or a certificate of delivery from Adams Japan to Nissho Iwai. The exporter of the merchandise on the first six exports for this claim was Nissho Iwai; Adams Japan was the exporter of the merchandise on the seventh export for this claim. However, other claims covered by this protest involve situations in which the claimant was the exporter, and therefore, the regulation would not apply.
HOLDING:
A surety who becomes liable for re-payment of accelerated payment of drawback may protest the denial of that claim.
Under 19 USC §1313(r)(2), the basis of a drawback claim filed under 19 USC §1313(b) may changed to 19 USC §1313(j)(2), provided that the claimant satisfies the requirements of 19 USC §1313(r)(2) and 19 CFR §191.12.
The protest shall be granted on any claim in which the claimant was the exporter to the extent that the protestant shows that the claim is consistent with this decision. On any claim in which the claimant was not the exporter, the protestant shall be given a reasonable opportunity to demonstrate compliance with 19 CFR §§191.34(b) (certificate of delivery) and 191.82 (assignment of right to claim drawback). If the protestant fails to demonstrate compliance with those regulatory requirements, the protest is to be denied as to those claims.
In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division