H311759

HQ H311759 November 28, 2023 OT:RR:CTF:EPDR H311759 JW CATEGORY: DRAWBACK 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, 

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 sum