REC-1-RR:IT:EC
Jim Reynolds
Vice President
John A. Steer Co.
28 S. Second Street
Philadelphia, PA 19106
RE: Recordkeeping; Original records; Retention period; 19 CFR 163.4, 163.5
Dear Mr. Reynolds:
FACTS:
This is in response to your ruling request of October 25, 1999 on behalf of Komatsu America International Co., Komatsu Mining Systems, Inc., and Komatsu Utility Corp. (jointly referred to as the “importers”) with respect to Customs document retention requirements.
Your request pertains to Environmental Protection Agency (“EPA”) Form 3520-21 with respect to the importation of nonroad engines and nonroad engines incorporated into nonroad equipment or vehicles. You point out that option one on Form 3520-21, which applies to an engine manufacturer holding a currently valid EPA certificate of conformity, provides that, if the list of engine serial numbers is not attached to the form, “the engine manufacturer will retain such information in electronic or paper form and agrees to retrieval upon EPA or Customs request.” (Emphasis supplied.)
The questions which you ask are stated in the ISSUES section of this ruling.
ISSUES:
1. Whether, pursuant to Customs recordkeeping requirements, an importer may retain electronically certain data required by the EPA and/or Customs?
2. What is the time period for retention of the data?
LAW AND ANALYSIS:
The applicable regulatory provisions are found in 19 CFR 163.5(a) and (b) which provide in pertinent part as follows:
§ 163.5 Methods for storage of records.
(a) Original records. All persons listed in § 163.2 shall maintain all records required by law and regulation for the required retention periods and as original records, whether paper or electronic, unless alternative storage methods have been adopted in accordance with paragraph (b) of this section...
(b) Alternative method of storage - (1) General. Any of the persons listed in § 163.2 may maintain any records, other than records required to be maintained as original records under laws and regulations administered by other Federal government agencies, in an alternative format, provided that the person gives advance written notification of such alternative storage method to the Director, Regulatory Audit Division, U.S. Customs Service, 909 S.E. First Avenue, Miami, Florida 33131, and provided further that the Director of the Miami regulatory audit field office does not instruct the person in writing as provided herein that certain described records may not be maintained in an alternative format...
The term “original’ is defined in 19 CFR 163.1(h), which provides in pertinent part as follows:
(h) Original. The term “original”, when used in the context of the maintenance of records, has reference to records that are in the condition in which they were made or received by the person responsible for maintaining the records pursuant to 19 U.S.C. 1508 and the provisions of this chapter ...
Thus, the Customs recordkeeping regulations require that the EPA Form 3520-21 be kept in its original format unless alternative storage has been adopted pursuant to 19 CFR 163.5(b). (See also, in 19 CFR 163.5(b)(2), the standards which must be applied by recordkeepers when using alternative storage methods.) Therefore, if the Form 3520-21 was in paper when made or received by the party, it must be retained in paper unless alternative storage has been adopted pursuant to 19 CFR 163.5(b).
It is our view that alternative storage may be adopted with respect to the supporting documentation for EPA Form 3520-21 because, as you point out and as the EPA Form 3520-21 provides, the EPA permits that documentation to be retained in either electronic or paper form, i.e., the EPA does not require that such documentation be retained in its original format. (See the clause beginning with “other” in the first sentence of 19 CFR 163.5(b)(1), excerpted above.) We note, however, that it is not clear from the copy of EPA Form 3520-21 which you provided as to whether the actual EPA Form 3520-21 (as opposed to the supporting documentation for the form) is required to be maintained in its original format. If the EPA Form 3520-21 is not required to be maintained in its original form, alternative storage may be adopted as to it as well.
The general record retention period is stated in 19 CFR 163.4(a), which provides:
§ 163.4 Record retention period.
(a) General. Except as otherwise provided in paragraph (b) of this section, any record required to be made, kept, and rendered for examination and inspection by Customs under § 163.2 or any other provision of this chapter shall be kept for five years from the date of entry, if the record relates to an entry, of 5 years from the date of the activity which required creation of the record.
The exceptions found in 19 CFR 163.4(b) from the general rule do not appear to be applicable based on the facts presented.
Accordingly, the EPA Form 3520-21 and supporting documentation must be retained for five years from the date of entry, if it relates to an entry, or five years from the date of the activity which required the creation of the record.
HOLDINGS:
1. Pursuant to 19 CFR 163.5(a), the EPA Form 3520-21 and supporting documentation must be kept in its original format unless alternative storage has been adopted pursuant to 19 CFR 163.5(b). Therefore, if the Form 3520-21 and supporting documentation were in paper when made or received by the party, they must be retained in paper unless alternative storage has been adopted pursuant to 19 CFR 163.5(b).
2. Pursuant to 19 CFR 163.4(b), the EPA Form 3520-21 and supporting documentation must be retained for five years from the date of entry, if it relates to an entry, or five years from the date of the activity which required the creation of the record.
Sincerely,
Jerry Laderberg
Chief,
Entry Procedures and Carriers Branch