DRA-1 CO:R:C:E 220179 KP
Regional Commissioner of Customs
Southwest Region
5850 San Felipe Street
Houston, Texas 77057-3012
RE: The use of an intermodal bill of lading with other evidence
to establish the time and fact of exportation under 19 CFR 191.52
(c)(2).
Dear Sir:
In your memorandum of February 11, 1988 (your reference
DRA-1-O:C JWB), you asked us to review C.S.D. 85-23. We have
reconsidered that ruling, and our decision follows:
FACTS:
The Regional Commissioner of Customs, Southwest Region, has
asked us to reconsider our decision in C.S.D. 85-23. The facts
of that case were: An exporter delivers merchandise to a carrier
on X day for exportation by microbridge, receiving therefor an
intermodal bill of lading. Merchandise delivered to this carrier
under these conditions is always exported within Y days after X
day, or in those rare cases when it is not, the exporter is so
notified by the carrier.
ISSUE:
May an intermodal bill of lading be used in conjunction with
other evidence (in this case, a certification by claimant that no
notification was received from the carrier indicating failure to
export) to prove the fact and time of exportation as required by
19 CFR 191.52(c)(2)?
LAW AND ANALYSIS:
Section 191.51, Customs Regulations (19 CFR 191.51), lists
five alternative procedures which may be followed in order to
establish exportation of articles for drawback purposes. One of
those procedures is the notice of exportation method set forth in
19 CFR 191.52. That procedure requires, under 19 CFR 191.52(c),
documentary evidence of exportation. This requirement may be
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satisfied either with a notice of exportation which is certified
by Customs at the time of exportation, or with an uncertified
notice of exportation. The rules for using an uncertified notice
of exportation are provided in 19 CFR 191.52(c)(2), which reads
as follows:
(2) Uncertified notice of exportation. An uncer-
tified notice of exportation shall be supported by
documentary evidence of exportation, such as the bill
of lading, air waybill, freight waybill, Canadian
Customs manifest, cargo manifest, or certified copies
thereof, issued by the exporting carrier. Supporting
documentary evidence shall establish fully the time and
fact of exportation and the identity of the exporter.
An intermodal bill of lading is a document prepared by an
exporter and submitted along with the exporter's merchandise to
an ocean shipper at an inland city. The ocean shipper indicates
on the intermodal bill of lading his receipt of the merchandise
at the inland city. Usually, an intermodal bill of lading does
not refer to the port of exportation or the date of exportation,
although it may refer to a particular vessel on which the goods
are to be exported.
Thus, an intermodal bill of lading is documentary evidence
of exportation, for it certifies in writing that certain goods
have been delivered to a particular ocean shipper at an inland
city for export. Moreover, when an ocean shipper acknowledges
his receipt of goods for exportation on an intermodal bill of
lading and returns it to the exporter, it becomes a document
"issued by the exporting carrier." See Customs Ruling DRA-1-09
CO:R:CD:D 213299 B, C.S.D. 82-59, 16 Cust. Bull. 782, 784 (1981).
Nevertheless, the ordinary intermodal bill of lading, on which
the ocean shipper does not indicate the fact, time, and place of
exportation, cannot satisfy the evidentiary requirements of 19
CFR 191.52(c)(2) on its own because it does not fully establish
all the pertinent facts set forth in the last sentence of that
subsection.
As we stated in C.S.D. 85-23, an intermodal bill of lading
may be used in conjunction with other evidence to prove the fact
and time of exportation under 19 CFR 191.52(c)(2), for the sup-
porting documentary evidence required by that subsection is not
limited to only one document. However, any additional evidence
offered, like the intermodal bill of lading, must be "documentary
evidence of exportation ... issued by the exporting carrier" as
provided in the regulation. Evidence not meeting this require-
ment cannot be accepted because drawback privileges under the
Tariff Act of 1930 are expressly conditioned, by statute, upon
compliance with such rules and regulations as the Secretary of
the Treasury shall prescribe. See United States v. Lockheed
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Petroleum Services, Ltd., 1 Fed. Cir. (T) 63, 65, 709 F.2d 1472,
1474 (1983).
The only other evidence offered with the intermodal bill of
lading in C.S.D. 85-23 to prove the time and fact of exportation
was a certification by the drawback claimant that no notification
was received from the exporting carrier indicating a failure to
export the goods in question. Such a certification is unaccept-
able as supporting documentary evidence under 19 CFR 191.52(c)(2)
because it was not issued by the exporting carrier. Therefore,
an intermodal bill of lading on which the exporting carrier has
not indicated the fact, time, and place of exportation, submitted
in conjunction with a certification from the drawback claimant
such as that described in C.S.D. 85-23 is not sufficient to prove
the fact and time of exportation under 19 CFR 191.52(c)(2).
HOLDING:
An intermodal bill of lading may be used in conjunction with
other evidence to prove the fact and time of exportation under 19
CFR 191.52(c)(2). However, a certification by a drawback claim-
ant that no notification was received from the exporting carrier
indicating a failure to export the merchandise is not acceptable
as such evidence. C.S.D. 85-23 (Customs Ruling DRA-1-CO:R:CD:D
217329 GS (Sep. 20, 1984)) is hereby modified accordingly.
Sincerely,
John Durant
Director
Commercial Rulings Division