U.S. Customs and Border Protection · CROSS Database
HQ H096657 January 18, 2012 DRA 1-06 ENT 1-06 OT:RR:CTF:ER H096657 ASL CATEGORY: Entry Port Director U.S. Customs and Border Protection 555 Battery Street San Francisco, CA 94111-2316 Attn: Ms. Karen Cheung Drawback Chief RE: Internal Advice; 19 C.F.R. § 191.72; proof of export; redacting name and address of consignee on export bill of lading Dear Port Director: This is in response to your request for Internal Advice pursuant to 19 C.F.R. § 177.11(b)(1)(ii) concerning whether documentation requirements for proof of export for drawback can be established when the name and address of the foreign consignee and sales value of the merchandise has been redacted on the sales orders, invoices and bills of lading. FACTS: DL Trading ("DL") imported bags of Petrothene and sold the merchandise to Quimtec, LP ("Quimtec"), which then exported them. Quimtec assigned its rights to claim drawback to DL. On November 17, 2009, DL claimed drawback per 19 U.S.C. § 1313(p) and designated Quimtec's exports of Petrothene. Subsequently, during a desk review of the claim, the San Francisco Drawback Office requested by letter that DL provide evidence of exportation to support the claim. On December 16, 2009, DL submitted documentation consisting of Quimtec's sales orders, invoices and the bills of lading for three exports. All the documents have the name and address of the consignee and the value of the goods redacted. The bills of lading were certified by DHL Drawback Services as being true and correct copies of the original bills of lading. The documents submitted contain the following information: (1) Quimtec sales order GI-57xx for HDBM Petrothene LH-xxxxx-xx to be shipped on June 16, 2009, by Dole Cargo to Guatemala, Guatemala. The accompanying Quimtec invoice GR-58xx, dated June 17, 2009, referenced sales order GI-57xx and described the merchandise as HDBM Petrothene LH-xxxxx-xx, with the same number of bags and weight as indicated on the sales order, and destined for Guatemala, Guatemala. The bill of lading from Dole Ocean Cargo Express, dated June 17, 2009, referenced sales order GI-57xx and described the merchandise as HDBM Petrothene LH-xxxxx-xx, with the same number of bags and weight as indicated on the sales order, and with place of delivery as Guatemala, Guatemala. The shipper is Quimtec. (2) Quimtec sales order SV-57xx was for HDBM Petrothene LH-xxxxx-xx to be shipped on June 19, 2009, by Great White Fleet to San Salvador, El Salvador. The accompanying Quimtec invoice SV-58xx, dated June 19, 2009, referenced sales order SV-57xx and described the merchandise as HDBM Petrothene LH-xxxxx-xx, with the same number of bags and weight as indicated on the sales order, and destined for San Salvador, El Salvador. The bill of lading from Great White Fleet, dated June 19, 2009, referenced sales order SV-57xx and described the merchandise as HDBM Petrothene LH-xxxxx-xx with the same number of bags and weight as indicated on the sales order, and with place of delivery as San Salvador, El Salvador. The shipper is Quimtec. (3) Quimtec sales order CR-57xx was for HDBM Petrothene LH-xxxxx-xx (among other merchandise), to be shipped on June 26, 2009, by Great White Fleet Cargo to San Jose, Costa Rica. The accompanying Quimtec invoice CR-59xx, dated June 26, 2009, referenced sales order CR-57xx and described the merchandise as HDBM Petrothene LH-xxxxx-xx, with the same number of bags and weight as indicated on the sales order, and destined for San Jose, Costa Rica. The bill of lading from Great White Fleet, dated June 26, 2009, referenced sales order CR-57xx and described the merchandise as HDBM Petrothene LH-xxxxx-xx (among other merchandise) with the place of delivery as San Jose, Costa Rica. The shipper is Quimtec. The San Francisco Drawback office contacted DHL Drawback Services (DHL) regarding the omission of the customer's name and address from the export documents. According to DHL, the reason that the export documents were redacted is because both DL Trading and the exporter of record considered the information to be proprietary business information and did not wish to disclose it to CBP. The San Francisco Drawback Office requested certified true copies of the bills of lading with no redactions and required that the certification be performed by an authorized agent of the carrier instead of by the broker. In response to the verbal request to produce certified copies of the export documents without redactions, DHL requested that the Port Director of San Francisco request Internal Advice on this issue. ISSUE: Whether the date and fact of exportation and the identity of the exporter is established fully when the consignee's name and address and the price of the goods is redacted from the sales orders, export invoices and export bills of lading that were provided as proof of export for drawback purposes. LAW AND ANALYSIS: The statute, 19 U.S.C. § 1313(p) authorizes the payment of drawback on exportation of a petroleum product if other specified criteria are met. Section 191.72, of Customs and Border Protection's ("CBP") regulations, states in part: 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: (a) 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; 19 C.F.R. § 191.72(a). The CBP regulations at 19 C.F.R. § 101.1 define "exportation" as: [T]he severance of goods from the mass of things belonging to this country with the intention of uniting them to the mass of things belonging to some foreign country. The United States Customs Court, relying on the leading case on export, Swan & Finch Co. v. United States, (190 U.S. 143, 145 (1903)), among other cases, has explained what "exportation" means: 'Exportation' has been defined by the U.S. Supreme Court as '(1) a severance of goods from the mass of things belonging to (the country of exportation) with (2) an intention of uniting them to the mass of things belonging to some foreign country.' Swan & Finch Co. v. United States, 190 U.S. 143, 145 (1903). Both the element of severance as well as the element of intent must not only exist but coincide in order to constitute an act of exportation. Moore Dry Goods Co. v. United States, 11 Ct. Cust. App. 449, T.D. 39531 (1923); United States v. National Sugar Refining Co., 39 CCPA 96, C.A.D. 470 (1951); Nassau Distributing Co. v. United States, 29 Cust. Ct. 151, C.D. 1459 (1952). The 'severance of goods from the mass of things belonging to (the country of exportation)' has been construed by our appellate court as meaning that the goods in question have been physically carried out of the country of exportation. See, e.g., National Sugar Refining Co., 39 CCPA at 101. United States v. National Sugar Refining Company, 488 F. Supp. 907, 908 (Cust. Ct. 1980). Thus, exportation requires carrying the goods out of the country physically and the intention to unite the goods with the mass of things belonging to another country. The documents listed in 19 C.F.R. § 191.72(a) demonstrate the intent for the subject merchandise to join the mass of things belonging to another country. Such intent is shown by the invoices, packing lists and payment records. "Evidence that the merchandise left the U.S. 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, dated September 17, 2002. Finally, if a drawback claimant chooses to establish an exportation with a bill of lading, and cannot provide CBP with an original, the claimant must provide CBP with a copy certified to be a true copy of the original, in order to establish the authenticity of the document. See 19 C.F.R. § 191.72(a). The issue in this case is whether the name and address of the foreign consignee and sales value of the merchandise are required information on the export documents to prove exportation for drawback purposes. DL submits that this information is not specifically required to establish fully the date and fact of exportation and the identity of the exporter. Based on the documents DL provided CBP, the regulatory requirements are satisfied here even though the name and address of the foreign consignee, and sales value of the merchandise have been redacted. The submitted documents, (sales orders, invoices, and bills of lading), evidence the intent to unite the goods with the mass of things belonging to other countries; Guatemala, El Salvador, and Costa Rica. Sales order GI-57xx states that the goods are to be shipped on June 16, 2009 to Guatemala; sales order SV-57xx states that the goods are to be shipped to El Salvador on June 19, 2009; and sales order CR-58xx states that the goods are to be shipped to Costa Rica on June 26, 2009. The three invoices also support the intention to unite the goods with the mass of things belonging to Guatamala, El Salvador, and Costa Rica. Invoice GI-58xx states the goods are destined for Guatemala; invoice SV-58xx states the goods are destined for El Salvador; and invoice CR-59xx states the goods are destined for Costa Rica. Finally, the three corresponding bills of lading state the goods were exported to Guatemala, El Salvador, and Costa Rica, respectively. The bills of lading, along with the supporting documents, established the date and fact of export, as well as the identity of the exporter. For the export to Guatemala, the bill of lading from Dole Ocean Cargo Express was dated June 17, 2009, referenced sales order GI-57xx, and described the merchandise, its quantity, and weight identically to the description found in sales order GI-57xx and invoice GI-58xx. For the export to El Salvador, the bill of lading from Great White Fleet was dated June 19, 2009, referenced sales order SV-57xx, and described the merchandise, its quantity, and weight identically to the description found in sales order SV-57xx and invoice SV-58xx. For the export to Costa Rica, the bill of lading from Great White Fleet, dated June 26, 2009, referenced sales order CR-57xx, and described the merchandise, quantity, and weight identically to the description found in sales order CR-57xx and invoice CR-59xx. Finally, the exporter, Quimtec, LP, is identified on the bills of lading for all three exports. Based on the information provided above, the submitted documents are sufficient evidence to establish that the merchandise was, in fact, exported from the United States "with the intention of uniting them to the mass of things belonging to some foreign country." See 19 C.F.R. § 101.1. The three bills of lading have been executed by the exporting carrier and shipper and were certified by DHL Drawback Services as being true and correct copies of the original bills of lading. For each export, the bill of lading and accompanying documents correspond with each other and describe the quantity and weight of the merchandise, the foreign place of delivery, and export date. The submitted bills of lading and accompanying documents properly identified the date and proof of export as well as the identity of the exporter. See 19 C.F.R. § 191.72(a); HQ 229566, dated September 17, 2002 (holding that a bill of lading indicating that the goods are on an outbound vessel could be evidence that the merchandise left the United States). In HQ W230788 (September 12, 2008), a decision involving redacted information on export air waybills for a drawback entry, CBP denied drawback for those entries where critical information was redacted from the airway bills. In HQ W230788, CBP reviewed a drawback export invoice that was part of the entry for sufficiency of documentation. CBP found that the air waybill submitted with the entry had several redactions. The export invoice associated with the entry indicated that there were 121 cartons of asparagus exported from Ceres International to Giovanelli Fruchtimport AG. Each carton weighted 13.5 pounds for a total of 1633.5 pounds. However, the air waybill submitted with the invoice had several redactions. Specifically, CBP noted that the following sections on the air waybill had been blackened out: rate/charge, total, prepaid, total prepaid and the nature and quantity of the goods section. The weight of the merchandise was not provided although the air waybill stated "121-ceres asparagus bunched-Lee." Furthermore, CBP noted that the export invoice number was handwritten on the air waybill. CBP determined that there was insufficient information on the air waybill to conclude that it corresponded to the same shipment referred to on the export invoice. CBP stated that discrepancies and the lack of information supplied by the drawback claimant may not be filled in with supposition or conjecture on the part of CBP. CBP concluded that airway bills with redactions are not sufficient indications of export when the information redacted precludes establishment of a clear relationship to a particular export invoice. Therefore, CBP denied drawback for those entries where critical information was redacted from the airway bills. Unlike in HQ W230788, all the necessary information to establish the fact and date of export and to link the various documents to each other appears on the sales orders, bills of lading and invoices. The merchandise here is described. The description of the goods is consistent across the related documents. The number of packages and weight are the same on the bills of lading, sales orders, and invoices and the invoice numbers on the bills of lading and sales orders correspond to one another. Based on the documents provided here, we can establish that the invoices, bills of lading and sales orders relate to the same transaction. The fact that the name of the foreign consignee is redacted here does not change this. There is no requirement that the foreign consignee's name and address or the value of the goods must be provided to establish proof of export. On the contrary, 19 C.F.R. § 191.72 requires only that evidence "establish fully the date and fact of exportation and the identity of the exporter," which was established in this case. HOLDING: Based on the facts in this case, the export bill of lading, which is certified as "true and correct," satisfies the regulatory requirements for proof of export, even though the name and address of the foreign consignee and sales value of the merchandise has been redacted on the export sales orders, export invoices and export bills of lading. No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CPB personnel, and to the public on the CPB 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 6
