HQ 0220179 - The use of an intermodal bill of lading with other evidence to establish the time and fact of exportation under 19 CFR 191.52 - United States International Trade Commision Rulings

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HQ 220179
March 10, 1988

DRA-1 CO:R:C:E 220179 KP

CATEGORY: DRAWBACK

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

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
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

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

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