DRAWBACK
SIMPLIFICATION
About AAEI
The American Association of Exporters and Importers (AAEI) has been a national voice for the international trade
community in the United States since 1921. Our unique role in representing the trade community is driven by our broad
base of members, including manufacturers, importers, exporters, wholesalers, retailers and service providers including
brokers, freight forwarders, trade advisors, insurers, security providers, transportation interests and ports. Many of
these enterprises are small businesses seeking to export to foreign markets.
Drawback Simplification
•
What is duty drawback? Established in 1789, duty drawback promotes US exports by
allowing a US manufacturer to obtain a refund of 99% of the Federal duties, taxes and
fees that were paid on goods it imports, as long as the US manufacturer later exported
the same goods or used the imported goods to manufacture US products for exportation.
There is manufacturing and non-manufacturing drawback.
•
Why is duty drawback important? As the only remaining WTO sanctioned export
program, the “drawback” (refund) of Federal duties, taxes and fees helps U.S.
manufacturers, retailers, and distributors compete in the global marketplace by reducing
their distribution and production costs, and thus the price of U.S. exports. Other nations
have similar duty drawback regimes. The government provides drawback refunds as a
way to help U.S. companies compete in foreign markets by eliminating some of the costs
associated with importing goods into the U.S. thereby reducing US production costs
and/or the export price of US goods in the international market. For example, if a company
sells at a 5 percent margin, every $1,000 recovered through drawback is equivalent to
$20,000 in sales. If the same company sells at a 10 percent margin, every $10,000
recovered equals $100,000 in sales. 1
•
Why is drawback simplification legislation needed? It is noncontroversial and should
be part of any trade package to update and streamline the program, making it easier for
US manufacturers to use, thus stimulating growth in exports, US jobs and US production.
US manufacturers and Customs agree that duty drawback simplification legislation is
needed.
•
What is important about the simplification legislation? Duty drawback is currently
based on a classification system for goods that is used by Customs for each import and
export to show that the imported and exported goods are the similar or the same, which
is very time consuming and costly for Customs and the U.S. manufacturer. The
simplification legislation will allow Customs to use 8-digit Harmonized Tariff System (HTS)
numbers as adopted by the U.S. and the World Customs Organization for duty drawback.
Once automated this system will make it easier for Customs and the US manufacturers
to administer because the imported and exported goods will be matched up under the
same 8 digit HTS number for purposes of duty drawback refunds.
1
Tower Group International, “Exporters benefit by taking advantage of duty drawback”,
March 14, 1999.
See http://www.bizjournals.com/houston/stories/1999/03/15/focus3.html?page=all
•
Why is substitution unused merchandise drawback important? Unused
merchandise drawback accounts for nearly 60% of all drawback claims. U.S. companies,
such as auto parts producers, wine producers, apparel producers, airplane producers,
electronics manufacturers, and rice, corn and soy bean producers, import foreign goods
and pay duties. Unused merchandise drawback encourages companies to export by
making them more competitive. This results in more high-paying export jobs in the United
States. Unfortunately, many companies have difficulty with the subjective “commercial
interchangeability” standard that must be met to use substitution unused merchandise
drawback. On top of this, CBP spends significant resources to administer an archaic
system that requires it to verify drawback to the invoice and part, something that is not
tracked in any governmental system, including the new ACE system. The detail required
to verify drawback has resulted in a system requiring numerous applications,
determinations, rulings, and audits, making the process of unused merchandise drawback
very difficult. If unused merchandise drawback is excluded from drawback simplification
legislation, it will remain unavailable for many companies. CBP will have to continue to
insist on numerous applications, determinations, rulings and audits, and it is doubtful that
drawback can ever become truly electronic. Unused merchandise will force CBP to
develop ACE in a way that accounts for the significant complexities and manual review
of unused merchandise drawback even if manufacturing drawback has been simplified.
Claimants will still need to provide detailed invoice and product level information to
calculate drawback, CBP will not have that information in the ACE system and will have
to audit this information manually, many efficiencies of simplification will be lost, and GAO
concerns about the drawback program will continue. In other words, “half a loaf” will turn
out to be no loaf at all.
Background on Drawback Program
Background. “Drawback” is the refund -- at the time goods are exported -- of customs duties, certain excise taxes,
and fees that are imposed at the time goods are imported or entered into the United States. The refund is administered
by U.S. Customs & Border Protection (CBP) after: (1) the exportation or destruction of the imported good; (2) exportation
of a good substituted for the imported good (referred to as “unused” or “substitution” drawback); or (3) exportation of a
finished good that is manufactured from the imported good or a good substituted for the imported good (referred to as
“manufacturing” drawback).
Drawback was initially authorized by the first Tariff Act of the United States in 1789 to grant a refund of taxes paid on
imports. The basic purpose is to make sure that goods which are exported into international commerce are not
economically burdened by levies which are imposed on the same goods, or substitutable goods imported into the U.S.
market. The drawback rules have evolved over the years as manufacturing methods and the movement of goods in
international commerce have changed, and as clarifications and modifications have been necessitated by ambiguities
in the law and by the enactment of additional levies on imports.
Drawback is one of the few remaining GATT/WTO-sanctioned export promotion programs and it is a program that is
used by customs authorities around the world. The WTO has commented that the drawback programs have the
following positive effects:
“Creates an export incentive; counteracts the negative effects of high import tariffs; establishes a strong
magnet for export-oriented foreign direct investment; provides benefits to exporters and manufacturers; and,
removes a bottleneck to private sector development”.
Workers in exporting industries have greater productivity and higher wages than do workers in other industries. Valid
export promotion programs such as drawback are necessary to encourage exports and enhance U.S. competitiveness
abroad. In sum, the drawback program benefits U.S. manufacturers and exporters by increasing their competitiveness
either at the margin for pricing goods in the export market or through lower overall costs of production.
Current Legislative Efforts. For almost a decade now, the federal government and the private sector have been
working on duty drawback simplification legislation that would incorporate an 8-digit classification system that is
designed to make it easier for the government and trade to administer and to facilitate growth in exports. This
simplification effort began with a series of meetings by the Trade Support Network (TSN), which is a public private
partnership between the Customs Service and industry. More recently, the efforts have included numerous meetings
with congressional trade staff that have resulted in drafts of proposed legislative changes. Both the federal government
and the private sector have an interest in simplifying this program which unfortunately has been marked by considerable
conflict, interpretation disagreements, and litigation over the years.
Legislation has been introduced by committee leadership in both the House and the Senate in recent years that would
2
incorporate drawback simplification, including S. 662 in the 113th Congress by Finance Committee chairman, Senator
Baucus and ranking member, Senator Hatch, and H.R. 6642 in the 112th Congress by Trade Subcommittee chairman
Congressman Brady. Both of these bills were broad Customs reauthorization legislation that included a drawback
simplification title.
As the 114th Congress prepares to advance Trade Promotion Authority legislation, there is a strong likelihood that other
long-stalled trade legislation will be considered at the same time. This presents an excellent opportunity to finally move
forward with drawback simplification legislation, separately or as part of the broader Customs reauthorization bill that
is also being worked on.
3
Who Supports Drawback Simplification
February 25, 2015
Dear Chairman Hatch and Ranking Member Wyden:
We, the undersigned associations, are writing to urge you to include duty drawback
simplification legislation as part of the Senate Finance Committee’s consideration of Trade
Promotion Authority and other trade legislation.
Members of our respective organizations participate in the duty drawback program and for
many years have been strong proponents of drawback simplification legislation on which we
have worked with the Congress and Customs and Border Protection (“CBP”). Duty drawback
is one of the oldest laws of our nation. It was established in 1789 in order to facilitate export
trade between the U.S. and its foreign trading partners. Duty drawback allows domestic
companies to import merchandise and raw materials and obtain a refund of Federal duties,
taxes, and fees that were paid on the imported goods if the imported goods are exported, used
to manufacture products for exportation, or destroyed. This program: 1) supports U.S. jobs
through the export of finished goods; 2) keeps manufacturers, retailers, and distributors
competitive in the global marketplace by reducing distribution and production costs and,
consequently, the price of U.S. exports; and 3) simplification enables CBP to be more efficient
by dedicating resources to drawback enforcement rather than processing drawback claims
which are still filed in paper.
For almost a decade now, the Federal Government and the private sector have been working
on duty drawback simplification legislation that would incorporate an 8-digit classification
system that is designed to make it easier for the government and trade to administer and to
facilitate growth in exports. This simplification effort has included numerous meetings with
your trade staff and various drafts of proposed legislative changes. Both the Federal
Government and the private sector have an interest in simplifying this program, which
unfortunately has been marked by considerable conflict, interpretation disagreements, and
litigation over the years. We now face a critical point where the window for programming
drawback simplification into the Automated Commercial Environment (ACE) system is rapidly
closing to make the October 1, 2016 completion date for ACE.
Legislation has been introduced by Finance and Ways and Means Committee leadership in
both the House and the Senate in recent years that would incorporate drawback simplification,
including S. 662 in the 113th Congress by then Finance Committee Chairman Senator Baucus
and then Ranking Member Senator Hatch, and H.R. 6642 in the 112th Congress by then Trade
Subcommittee Chairman Congressman Brady. Both of these bills were broad Customs
reauthorization legislation that included a drawback simplification title.
We urge you to move forward with drawback simplification as soon as possible. There is
broad, bipartisan Congressional, executive branch, and industry support for drawback
simplification legislation, which is non-controversial. The private sector is in full accord with
the CBP on the value of such legislation. We all recognize the value of adopting a more
streamlined, efficient, and effective drawback regime that makes it easier for both the Federal
Government and the private sector to administer use of this valuable, historic program.
As you know, Congress only rarely processes trade legislation and the drawback simplification
issue has languished for several years. As Congress advances trade legislation, we urge you
to take this opportunity to advance drawback simplification legislation as well, either on its own
or as part of the broader Customs reauthorization bill.
Thank you for your support for this issue and your attention to our concerns.
American Association of Exporters and Importers
American Apparel & Footwear Association
American Petroleum Institute
Association of Global Automakers, Inc.
Express Association of America
National Customs Brokers and Forwarders Association of America
National Foreign Trade Council
The National Industrial Transportation League
TechAmerica, powered by CompTIA
U.S. Council for International Business
4
U.S. Fashion Industry Association
5
Who Uses Drawback – By Industry
Aerospace
Agriculture
Apparel
Automobiles
Automobile Parts
Baggage/Luggage
Chemicals
Cosmetics
Electronics
Farm Equipment
Foods (Pre-packaged, Unfrozen, Frozen)
Home Furnishings
Industrial Equipment Military
Medical Devices
Metals
Oil & Gas
Packaging
Petrochemicals
Petroleum
Plastics
Retail & Ecommerce
Textiles
Tobacco
Titanium
Watches
Warehousing
Wine & Spirits
6
[Discussion Draft]
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[DISCUSSION DRAFT]
1
SEC. ll. DRAWBACK AND REFUNDS.
2
3
(a) ARTICLES MADE FROM IMPORTED MERCHANDISE.—Section
313(a) of the Tariff Act of 1930 (19
4 U.S.C. 1313(a)) is amended by striking ‘‘under customs
5 supervision’’.
6
(b) SUBSTITUTION
FOR
DRAWBACK PURPOSES.—
7 Section 313(b) of the Tariff Act of 1930 (19 U.S.C.
8 1313(b)) is amended—
9
10
(1) by striking ‘‘If imported’’ and inserting the
following:
11
‘‘(1) IN
12
(2) by inserting after ‘‘the same kind and qual-
13
ity’’ the following: ‘‘or referred to under the same 8-
14
digit classification of the Harmonized Tariff Sched-
15
ule of the United States’’;
16
17
imported’’;
(3) by striking ‘‘three years’’ and inserting ‘‘5
years’’;
18
(4) by striking ‘‘the receipt of such imported
19
merchandise by the manufacturer or producer of
20
such articles’’ and inserting ‘‘the date of importation
21
of such imported merchandise by the importer’’;
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1
2
(5) by striking ‘‘under customs supervision’’
each place it appears;
3
(6) by inserting ‘‘or any articles referred to
4
under the same 8-digit classification of the Har-
5
monized Tariff Schedule of the United States,’’ after
6
‘‘of any such articles,’’;
7
(7) by inserting after ‘‘merchandise used there-
8
in been imported,’’ the following: ‘‘as calculated
9
under subsection (r)(4),’’;
10
11
(8) by striking the period at the end and inserting ‘‘, as calculated under subsection (r)(4).’’; and
12
(9) by adding at the end the following:
13
‘‘(2) REQUIREMENTS
14
OF MERCHANDISE.—
15
‘‘(A)
MANUFACTURERS
AND
PRO-
16
DUCERS.—Drawback
17
paragraph (1) in the amount referred to under
18
paragraph (1) only if the manufacturer or pro-
19
ducer of articles has received the imported,
20
duty-paid merchandise, merchandise of the
21
same kind and quality, or merchandise referred
22
to under the same 8-digit classification of the
23
Harmonized Tariff Schedule of the United
24
States, either through a direct transfer from
25
the importer, or an indirect transfer from the
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1
importer through intermediate transfers involv-
2
ing one or more parties, of imported duty-paid
3
merchandise, merchandise of the same kind and
4
quality, or merchandise referred to under the
5
same 8-digit classification of the Harmonized
6
Tariff Schedule of the United States.
7
‘‘(B) EXPORTERS
DESTROYERS.—
8
Drawback may be allowed under paragraph (1)
9
in the amount referred to under paragraph (1)
10
only if the exporter or destroyer of articles has
11
received the manufactured or produced article
12
or an article referred to under the same 8-digit
13
classification of the Harmonized Tariff Sched-
14
ule of the United States, either through a direct
15
transfer from the manufacturer or producer, or
16
an indirect transfer from the manufacturer or
17
producer through intermediate transfers involv-
18
ing one or more parties, of an article referred
19
to under the same 8-digit classification of the
20
Harmonized Tariff Schedule of the United
21
States.
22
‘‘(C) EVIDENCE
OF TRANSFER.—Transfers
23
of merchandise under subparagraph (A) and
24
transfers of articles under subparagraph (B)
25
may be evidenced by business records kept in
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1
the normal course of business and no additional
2
certificates of transfer or manufacture shall be
3
required.’’.
4
(c) MERCHANDISE NOT CONFORMING TO SAMPLE OR
5 SPECIFICATIONS.—Section 313(c) of the Tariff Act of
6 1930 (19 U.S.C. 1313(c)) is amended—
7
(1) in paragraph (1)—
8
(A) in the matter preceding subparagraph
9
(A), by striking ‘‘under the supervision of the
10
Customs Service’’;
11
(B) in subparagraph (D)—
12
(i) by striking ‘‘3’’ and inserting ‘‘5’’;
13
and
14
(ii) by striking ‘‘under the supervision
15
of the Customs Service’’; and
16
(C) in the text immediately following sub-
17
paragraph (D), by inserting ‘‘as calculated
18
under subsection (r)(4),’’ after ‘‘merchandise,’’;
19
and
20
(2) in paragraph (2)—
21
(A) by striking ‘‘under the supervision of
22
the Customs Service’’;
23
(B) by striking the last sentence and in-
24
serting the following: ‘‘Transfers of merchan-
25
dise may be evidenced by business records kept
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1
in the normal course of business and no addi-
2
tional certificates of transfer shall be re-
3
quired.’’.
4
(d) PROOF
OF
EXPORTATION.—Section 313(i) of the
5 Tariff Act of 1930 (19 U.S.C. 1313(i)) is amended to read
6 as follows:
7
‘‘(i) PROOF
OF
EXPORTATION.—A person claiming
8 drawback under this section shall, as proof of exportation,
9 maintain the record of exportation entered in the auto10 mated export system of the United States Government or,
11 if the exporter is unable to use that system, records kept
12 in the normal course of business similar to the information
13 contained in such record of exportation.’’.
14
(e) UNUSED MERCHANDISE DRAWBACK.—Section
15 313(j) of the Tariff Act of 1930 (19 U.S.C. 1313(j)) is
16 amended—
17
(1) in paragraph (1)—
18
(A) in subparagraph (A)—
19
(i) by striking ‘‘3-year’’ and inserting
20
‘‘5-year’’; and
21
(ii) by inserting ‘‘and before filing the
22
drawback claim’’ after ‘‘the date of impor-
23
tation’’; and
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1
(B) in the text immediately following sub-
2
paragraph (B), by inserting ‘‘, as calculated
3
under subsection (r)(4),’’ after ‘‘paid’’;
4
(2) in paragraph (2)—
5
(A) in subparagraph (A), by inserting ‘‘, or
6
referred to under the same 8-digit classification
7
of the Harmonized Tariff Schedule of the
8
United
9
with’’;
10
as,’’
after
‘‘interchangeable
(B) in subparagraph (B)—
11
(i) by striking ‘‘3-year’’ and inserting
12
‘‘5-year’’; and
13
(ii) by inserting ‘‘and before filing the
14
drawback claim’’ after ‘‘the imported mer-
15
chandise’’;
16
(C) in subparagraph (C)(ii)(II)—
17
(i) by inserting ‘‘, either directly or in-
18
directly,’’ after ‘‘received’’;
19
(ii) by inserting ‘‘, tax, or fee’’ after
20
‘‘duty’’; and
21
(iii) by striking ‘‘or any combination
22
of imported and commercially interchange-
23
able merchandise’’ and inserting ‘‘, mer-
24
chandise referred to under the same 8-digit
25
classification of the Harmonized Tariff
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1
Schedule of the United States, or any com-
2
bination thereof’’; and
3
(D) in the text immediately following sub-
4
paragraph (C)—
5
(i) by inserting ‘‘, as calculated under
6
subsection (r)(4),’’ after ‘‘under this sub-
7
section’’; and
8
(ii) by adding at the end the fol-
9
lowing: ‘‘Merchandise shall be considered
10
to be received directly or indirectly from a
11
person who imported and paid any duty,
12
tax, or fee due on the imported merchan-
13
dise if the recipient received any imported
14
merchandise, commercially interchangeable
15
merchandise,
16
under the same 8-digit classification of the
17
Harmonized Tariff Schedule of the United
18
States, or any combination thereof, from
19
the importer through a transfer directly to
20
the recipient, or a transfer from the im-
21
porter through one or more intermediate
22
transfers involving one or more parties of
23
any combination of imported merchandise,
24
commercially interchangeable merchandise,
25
or merchandise referred to under the same
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1
8-digit classification of the Harmonized
2
Tariff Schedule of the United States.
3
Transfers of merchandise may be evi-
4
denced by business records kept in the nor-
5
mal course of business and no additional
6
certificates of transfer shall be required.’’;
7
and
8
(3) in paragraph (3)(B), by inserting ‘‘or the
9
merchandise referred to under the same 8-digit clas-
10
sification of the Harmonized Tariff Schedule of the
11
United States’’ after ‘‘merchandise’’.
12
(f) REGULATIONS.—Section 313(l) of the Tariff Act
13 of 1930 (19 U.S.C. 1313(l)) is amended by striking ‘‘and
14 the designation of the person to whom any refund or pay15 ment of drawback shall be made’’ and inserting ‘‘and the
16 authority to require that all drawback entries be filed elec17 tronically’’.
18
19
(g) SUBSTITUTION
RIVATIVES.—Section
OF
FINISHED PETROLEUM DE-
313(p)(3)(A) of the Tariff Act of
20 1930 (19 U.S.C. 1313(p)(3)(A)) is amended in the text
21 immediately following clause (ii), by striking ‘‘Commis22 sioner of Customs’’ and inserting ‘‘Commissioner respon23 sible for U.S. Customs and Border Protection’’.
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1
(h) PACKAGING MATERIAL.—Section 313(q)(3) of
2 the Tariff Act of 1930 (19 U.S.C. 1313(q)(3)) is amended
3 by striking ‘‘they contain’’ and inserting ‘‘it contains’’.
4
(i) FILING
AND
CALCULATION
OF
DRAWBACK
5 CLAIMS.—Section 313(r) of the Tariff Act of 1930 (19
6 U.S.C. 1313(r)) is amended—
7
8
(1) in the heading, by inserting ‘‘AND CALCULATION OF’’
9
(2) in paragraph (1)—
10
(A) by striking the first sentence and in-
11
serting the following:‘‘ ‘A drawback entry shall
12
be filed or applied for, as applicable, not later
13
than 5 years after the date on which merchan-
14
dise on which drawback is claimed was im-
15
ported. If merchandise summarized on an entry
16
summary line item with respect to which draw-
17
back is claimed was imported on more than one
18
date, the earliest date of importation of the
19
merchandise contained on that entry summary
20
line item shall be used for purposes of this
21
paragraph.’’;
22
(B) in the second sentence, by striking ‘‘3-
23
year’’ and inserting ‘‘5-year’’; and
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1
(C) in the third sentence, by striking ‘‘the
2
Customs Service’’ and inserting ‘‘U.S. Customs
3
and Border Protection’’;
4
(3) in paragraph (3)(A)—
5
(A) in the matter preceding clause (i), by
6
striking ‘‘The Customs Service’’ and inserting
7
‘‘U.S. Customs and Border Protection’’; and
8
(B) in clauses (i) and (ii), by striking ‘‘the
9
Customs Service’’ each place it appears and in-
10
serting ‘‘U.S. Customs and Border Protection’’;
11
and
12
(4) by adding at the end the following:
13
‘‘(4) The amount of drawback under a drawback
14 entry for refund filed under any subsection of this section
15 shall equal the amount determined by multiplying—
16
‘‘(A) the amount determined by dividing—
17
‘‘(i) the total amount of duties, taxes, and
18
fees on the entry summary line item under
19
which imported merchandise is reported; by
20
‘‘(ii) the number of units of imported mer-
21
chandise; and
22
‘‘(B) the number of units of imported merchan-
23
dise claimed for drawback.’’.
24
(j) DESIGNATION
25
CESSOR.—Section
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OF
MERCHANDISE
BY
SUC-
313(s)(2)(B) of the Tariff Act of 1930
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[Discussion Draft]
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11
1 (19 U.S.C. 1313(s)(2)(B)) is amended by inserting ‘‘or
2 merchandise referred to under the same 8-digit classifica3 tion of the Harmonized Tariff Schedule of the United
4 States,’’ after ‘‘commercially interchangeable merchan5 dise’’ the second place it appears.
6
(k) TECHNICAL
AND
CONFORMING AMENDMENTS.—
7 The Tariff Act of 1930 is amended—
8
(1) in section 505(b) (19 U.S.C. 1505(b)), by
9
adding at the end the following: ‘‘Refunds of excess
10
moneys deposited, as determined on a liquidation or
11
reliquidation, shall be reduced by any amount paid,
12
on an accelerated basis or otherwise, to a person
13
claiming drawback pursuant to section 313.’’; and
14
(2) in section 515(a) (19 U.S.C. 1515(a)), by
15
adding at the end before the period the following:
16
‘‘in accordance with section 505’’.
17
(l) EFFECTIVE DATE.—The amendments made by
18 this section shall apply with respect to claims filed for
19 drawback under section 313 of the Tariff Act of 1930,
20 as amended by this section, on or after the date of enact21 ment of this Act.
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C:\DOCUMENTS AND SETTINGS\MASYNNES\APPLICATION DATA\SOFTQUAD\XMETAL
B O A R D
O F
G O V E R N O R S
Claib Cook (Secretary-Treasurer)
General Motors Corporation
Jerry Cook
Hanesbrands Inc.
Michelle Forte
Charter Brokerage Services
Lori Goldberg (Vice Chair – Education and Annual Conference)
Avery Dennison Corporation
Susie Hoeger
Abbott Laboratories
Steve Johnsen (Chair Emeritus)
Bayer Corporation
Karen Kelly (Vice Chair - Membership and Communication)
Becton Dickinson and Company
Bruce Leeds
Braumiller Law Group
Michael Leightman
Ernst & Young, LLC
Robert Leo
Meeks, Sheppard, Leo & Pillsbury
Karen Lobdell
Integration Point
Matt McGrath
Barnes, Richardson & Colburn
Kathleen Murphy
Drinker Biddle & Reath LLP
Shanna O’Brien (EC)
Eaton Corporation
Julie Parks (EC)
Raytheon
Steve Pasienski (EC)
Toyota Motor Sales, U.S.A., Inc.
Beth Peterson
BPE Global
Mike Rafferty
Mercedes-Benz US International, Inc.
Richard Salamone
BASF Corporation
Lee Sandler
Sandler, Travis & Rosenberg
Mel Schwechter
BakerHostetler
John Sega
Northrop Grumman Corporation
Katherine Terricciano (Chair)
Philips Electronics N.A.
Virginia Thompson
Crate & Barrel
Matthew Varner
Nike Inc.
Theresa Walker
Cargill, Incorporated
Ken Weigel
Alston & Bird
Phyliss Wigginton (Chair-Elect)
Mitsui & Company (USA), Inc.
Kevin Willis
Tyco Fire & Security
Doug Zuvich
KPMG LLP