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HQ W231061





May 2, 2007

DRA – 4 RR:CTF:EP 231061 MAS

Category: DRAWBACK

U.S. Customs and Border Protection
Port of Chicago
610 South Canal Street, 3rd Floor
Chicago, IL 60607
Attn: Linda Golf

RE: Protest/AFR No. 3901-05-100542; 19 USC § 1313(j)(1); 19 C.F.R. §§ 191.53 (1996) and 191.73 (2005); Drawback of Entry Nos. UC1-XXXXXX2-3 and UC1-XXXXXX5-6

Dear Ms. Golf:

The above-referenced protest, filed by Konica Minolta Business Solutions (Protestant), through the law offices of Rode & Qualey, on June 14, 2005, has been forwarded to this Office for further review. We have considered the arguments raised by Protestant against, and by your office in favor of, the denial of two direct identification unused merchandise drawback claims due to insufficient evidence of export. Our decision follows.

FACTS

Konica Minolta Business Solutions contests the denial of two direct identification unused merchandise drawback claims for toner, developer, and analog photocopiers that were manufactured in Asia and imported by the Protestant for sale in Canada and Mexico. The claims, UC1-XXXXXX2-3 and UC1-XXXXXX5-6, were filed pursuant to 19 USC § 1313(j)(1) with the Port Director of Customs in Boston (Boston Port), Massachusetts, by Konica Business Technologies (KBT), the predecessor company that merged with Minolta Corporation in October 1, 2003 to form KMBS.

The first drawback claim, entry number UC1-XXXXXX2-3, was filed April 15, 1996, for merchandise exported during January 1996 and liquidated on April 8, 2005 (April 15th Claim). Protestant subsequently filed entry number UC1-XXXXXX5-6 on June 20, 1996, for a second direct identification unused merchandise drawback claim on the same type of goods, exported during the month of April 1996 and liquidated on April 8, 2005 (June 20th Claim).

The record shows that KBT sought approval for accelerated payment on December 2, 1987 and was approved to utilize Accelerated Payment for Same Condition Drawback Entries on April 12, 1988; Protestant’s accompanying $1,000,000 bond was deemed sufficient by Customs’ Liquidation Branch. See Protestant’s Protestant’s Exhibit H: J. Rohan Letter (Dec. 2, 1987)(requesting accelerated payment); Bernice L. Avila, U.S. Customs Service Liquidation Branch Chief, Letter DRA-2-0:C:L (April 12, 1988)(granting accelerated payment).

The Port of Chicago (Chicago Port) denied both drawback claims due to insufficient evidence of export in March 2005.

The port of Boston was closed subsequent to the filing of Protestant’s drawback claims and related records were transferred to the Port of Chicago upon this closing. For the April 15th Claim, the denial was predicated the basis of no evidence of export pursuant to 19 CFR § 191.72, no chronological summary of exports, and imports that reliquidated at lower duty rates after the filing of the drawback claim. On this last basis, the Chicago Port identified three entries that had previously been liquidated: entry numbers 946-XXXXX26, which was liquidated in the amount of $803.81; entry number 946-XXXXXX58, liquidating for $15,973.36; and entry number 946-XXXXXX82, which liquidated for $22,937.80. See Notice of Action, Customs Form 29 (Mar. 15, 2005). The Port similarly denied Protestant’s June 20th claim, reasoning the requirements set out in Section 191.72 of the Regulations were not met. See Notice of Action, Customs Form 29 (Mar. 15, 2005).

Protestant timely filed its protest against the denial of both claims with an Application for Further Review on June 14, 2005. Protestant objects to the denial of the drawback claims on the grounds that sufficient proof of export was provided at the time the claim was issued. Protestant further argues that its inability to reproduce this evidence today does not merit the denial of these claims because a request for “proof of export” was not received from the port until the regulatory requirements for retention of such records had expired.

DOCUMENTS IN EVIDENCE

The following are documents that were submitted with the protest:

Chronological summary of exports for June 20th Claim (UC1XXXXXX5-6) – This handwritten document identifies the export carrier as “Kingsway,” subsequently identified by KMBS Customs Manager to represent “Kingsway Trucking Company,” and “C&F,” which was later described to mean “Consolidated Freightways.” Under the “Marks & Numbers Packages (Exported)” column, counsel for Protestant explains that the acronyms “KBM POC” and “KMB Mexico” mean “Konica business Machines Pickering Ontario Canada” and “Konica Business Machines Mexico” respectively. Additionally, under the column “Export Reference # & Date of Export” are the acronyms “UBM” and “RDM”; Protestant has indicated the former refers to Mexico and the later refers to Canada. See Protestant’s Exhibit E.

Affidavit executed by KMBS Traffic Manager John G. Rohan – Mr. Rohan describes Protestant’s drawback program and the facts surrounding the filing of the drawback claims at issue. Mr. Rohan explains Protestant’s drawback process includes submission of the following: CF 7539; chronological summary; drawback coding sheet; drawback calculation worksheets, import 7501 and related import invoices, export invoice packing list, trucker’s export bill of lading; and copies of import entry invoices from Canadian and Mexican importers. The affidavit is offered as evidence that all required documents to establish fact of export were submitted with the drawback claim. While not having specific recollection of the claims under review, Mr. Rohan states that under KBT/KMBS drawback procedures, all documents required for drawback were always filed with the claim. See Protestant’s Exhibit A.

Notice of Action, Customs Forms 29 (CF 29), Notices of Action for April 15th and June 20th Claims were both issued by drawback specialist Anna Rodriguez, indicating the amount of bill issued to, and paid by, Protestant. The CF 29 for the April 15th Claim was issued on March 17, 2005. Rodriguez denied this claim because: (1) there is no evidence of export in the claim under Section 191.72 of the Regulations” and (2) three import entries that reliquidated after the filing of the drawback claimpotentially could cause a reduction in the accelerated payment amount.” See Protestant’s Exhibit B. CF 29 for the June 20th claim, issued on March 17, 2005, rejected the claim because: “There was no[t] sufficient evidence of exportation and the Summary of Exports provided does not contain enough information to establish exportation, including but not limited to Destination of Export [pursuant to 19 CFR § 191.72].” See Protestant’s Exhibit C.

Customs Forms 7539, Same Condition Merchandise Claims On both claims, Protestant listed “Information per Attached Sheets” for information regarding “Marks and Numbers of Packages” (Box 15), “Quantity” (Box 16), “Description of Merchandise” (Box 17), “Value” (Box 18), and “Duty Paid” (Box 19). See Protestant’s Exhibit D. CF 7539 for the April 15th Claim states drawback was entered on February 21, 1996 (Box 2); Ultimate Port of Destination (Box 6) is listed as “Pic.Ont.Canada.” Mexico.” CF 7539 for the June 20th Claim states drawback was entered on June 4, 2006; Ultimate Port of Destination is also listed as “Pic.Ont.Canada Mexico”.

Cover Letter, from KMBS Traffic and Customs Manager Jack Rohan to the Drawback Unit of the Port of Boston, identifying the drawback claims as covering shipments to Canada and Mexico (dated February 21, 1996). The letter refers to “Same Condition Drawback EC96-01”; this code also appears on a drawback worksheet as corresponding with import entry 946-XXXXXX2-6. (See explanation of worksheets below). The letter specifies the shipments “have been made under the exporter’s summary and accelerated payment procedures that are filed with your offices” and further notes that “We have prepared a chronological listing of all shipments made.” Copies of the documents referenced in this letter are not in the Customs file. See Protestant’s Exhibit G.

Accelerated Payment Request and Approval Letters Protestant provided two uncertified letters as evidence of authorized use of accelerated payment drawback. The first letter, from Mr. Rohan to the Boston Port, seeks approval for accelerated payment and posts $1 million bond (dated Dec. 2, 1987). The second letter, from Customs Chief of the Liquidation Branch, approves KBT’s use of accelerated payment for same condition drawback entries and acknowledges the bond as sufficient to cover the drawback entries (dated April 12, 1988). See Protestant’s Exhibit H.

Drawback Calculation Documents
To support the April 15th Claim, Protestant submitted: an unsigned, uncertified copy of a “Drawback Coding Sheet”, supported by “Drawback Calculation Worksheets” for three import entries. The Coding Sheet document, entitled “Drawback Affidavit,” lists: “KPI” reference numbers; Entry numbers, the port code; date and amount of entry; and the drawback claimed (at 99%). Entry 946-XXXXXX2-6 is referenced as KPI 5391; date of entry is listed as November 9, 1995, with a drawback of $25.19 claimed on an Amount of Entry listed as $25.44. The worksheet for entry 946-XXXXXX2-6, identified as KPI 5391, lists an original amount entered as $36,408 with 600 pieces for a value of $60.68 per piece and an original duty paid of $1,274.28 for a duty of $2.12 per piece; 12 pieces were claimed to have been exported at a value of $728.16 and duty of $25.44 per piece. See Protestant’s Exhibit F.

Supplemental Submission of Protestant Documents

Pursuant to this Office’s request for additional information, Counsel for Protestant submitted: letter from KMBS Import/Export Manager Rohan to Regional Commissioner of the Boston Port requesting approval for accelerated payment of drawback and indicating that a separate request was being submitted to the Regional Commissioner of the Pacific Region to cover drawback entries filed in Los Angeles (date Dec. 2, 1987); letter from Pacific Region Liquidation Branch Chief approving this accelerated payment request (April 12, 1988); the Boston Port’s response to Protestant’s Freedom Of Information Act request; and photocopies of Mexican and Canadian Customs entry forms showing the business address for Konica Business Machines Mexico. See Protestant’s Exhibit H.

The Canadian Customs Invoice – which included toner, developer, and legal case, cleaning roller, etc. – shows Konica Business Machines USA as the Vendor and Konica Business Machines Canada, in Pickering, Ontario, as the consignee (dated Dec. 2, 1994). The Mexican invoice identified “Konia Business Machines De Mexico”, in Colonia Lomas de Botelo, Mexico, as the importer and Konica Business Machines USA as the point of origin (dated July 2, 1994). It should be noted that these invoices are unrelated to the drawback entries at issue and are probative to the extent that they support Protestant’s claim that the Mexican and Canadian importing companies are Konica Business Machines, Konica Business Machines Mexico, and Konica Business Machines Canada, in Pickering, Ontario. See Protestant’s Exhibit I. There are no invoices, manifests, or bills of lading to support the underlying import entries and the coding sheet, calculation worksheets, or Status Refund reports do not refer to what merchandise underlies these import entries. Therefore, the record does not include evidence as to what the identity of the merchandise is underlying the April 15th claim.

Protestant explains that it is unable to provide documentary evidence necessary to verify the April 15th claim because all records relating to this transaction were destroyed after the merger of KBT and Minolta in 2003-05, when a new computer system was installed and it was ascertained that this would be too costly and burdensome to maintain all records of old KBT/Minolta files. At that time, KMBS had determined that it had received payment on all drawback entries KBT had filed prior to 1998, that more than three years had passed since KBT had received the last such payments, and Customs “had not indicated that any of the drawback entries filed prior to 1998 were deficient in any respect nor had Customs indicated [to Protestant] that any would be verified or audited in the future.” See Memorandum in Support of Protest and Application for Further Review at 4 (June 15, 2006). Therefore, Protestant submitted testimonial and the aforementioned documents as evidence of “substantial compliance with [the drawback] requirements.” See Affidavit of John Rohan, Traffic and Customs Manager, Protestant’s Exhibit A, at 3-4.

ISSUE

Whether Protestant provided sufficient evidence of exportation under 19 CFR 191.53 [1996], the standard required at the time of the exportation, to support its claims for direct identification unused drawback?

LAW AND ANALYSIS

We note initially that the refusal to pay a claim for drawback is protestable pursuant to 19 U.S.C. § 1514(a)(6). As required by statutory and regulatory provisions for protests, this protest was timely filed on June 14, 2005, within ninety days of the date of liquidation for both claims on April 8, 2005. See 19 USC § 1514 and 19 CFR Part 174. Generally, under 19 U.S.C. § 1313(j)(1), drawback is authorized if imported merchandise on which was paid any duty, tax, or fee imposed under Federal law because of its importation is, within three years of the date of importation, exported or destroyed under Customs supervision and was not used in the United States before such exportation or destruction. To be eligible for an unused merchandise drawback under this provision, the goods imported must be the same goods now being exported.

19 USC § 1313(j), Unused Merchandise Drawback, requires in part: “(1) If imported merchandise, on which was paid any duty, tax, or fee imposed under Federal law upon entry or importation - (A) is, before the close of the 3-year period beginning on the date of importation - (i) exported, or (ii) destroyed under customs supervision; and (B) is not used within the United States before such exportation or destruction; then upon such exportation or destruction 99 percent of the amount of each duty, tax, or fee so paid shall be refunded as drawback. The exporter (or destroyer) has the right to claim drawback under this paragraph, but may endorse such right to the importer or any intermediate party.” The Customs Regulations pertaining to drawback are found in 19 CFR Part 191.

With respect to the subject protest, Protestant indicates that further review is merited because the decision to deny its drawback claims is at odds with Headquarters’ rulings on the requirements to substantiate evidence of export for drawback claims as well as with Headquarters’ decisions regarding whether there are limitations to the time within which a claim for drawback must be verified. See Memorandum in Support of Protest at 18. Where there is an alleged inconsistency between HQ 222494 and the denial of a protest, a protest which would otherwise be denied by the port director shall be accorded further review. See 19 CFR § 174.25(a). Accordingly, further review is granted; an assessment of the contested discrepancies is discussed below.

Evidence of Exportation

Protestant filed the first drawback claim at issue on April15, 1996 (April 15th Claim); the second claim was filed on June 20, 1996 (June 20th Claim). The Port denied both drawback claims on April 8, 2005 for lack of evidence of exportation. The requirements to establish evidence of exportation for drawback purposes are set out in Section 191.51 of the 1996 Regulations. See Cargill Citro-America, Inc. v. United States, 395 F. Supp.2d 1222, 1227 (2006, U.S. Ct. Intl Trade)(finding: “The 1998 Regulations took effect April 6, 1998, and, therefore, are inapplicable to Cargill’s drawback claim, which was filed on May 10, 1997. Customs Regulations will not be given retroactive effect unless such treatment is called for in the language of the regulation”). As noted above, the Port denied both drawback claims pursuant to 19 CFR § 191.72, which went into effect on March 5, 1998. 19 CFR § 191.72, Exportation procedures [2005] provides: “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; (b) Export summary (§ 191.73); (c) Certified export invoice for mail shipments (§ 191.74); (d) Notice of lading for supplies on certain vessels or aircraft (§ 191.112); or (e) Notice of transfer for articles manufactured or produced in the U.S. which are transferred to a foreign trade zone (§ 191.183).” Because the drawback claims at issue were filed in 1996, the appropriate basis upon which to assess evidence of export is stated in the 1996 Regulations.

Section 191.51 of the 1996 Regulations identifies the means by which evidence of export may be established. 19 CFR § 191.51, Alternative procedures [1996] provides: “Exportation of articles for drawback purposes shall be established by complying with one of the following procedures: (a) Notice of exportation (§191.52); (b) Exporter's summary (§ 191.53); (c) Certified notice of exportation for mail shipments (§ 191.54); (d) Notice of lading for supplies on certain vessels or aircraft (§ 191.93); or (e) Notice of transfer for articles manufactured or produced in the United States which are transferred to a foreign trade zone (§ 191.163)”. In this instance, Protestant submitted an exporter’s summary in support its drawback claim on Customs Form 7539 for both claims pursuant to 19 CFR § 191.53(e)(3) [1996]. That section provides: “The chronological summary of exports shall be in a format acceptable to the drawback office and shall contain substantially the data provided for in the following format”: (1) Date of exportation; (2) Exporting carrier; (3) Freight or air waybill, bill of lading, manifest number, etc.; (4) Marks and numbers; (5) Description; (6) Net quantity; (7) Schedule B no.; (8) Destination. The Regulations further note that for column 3, “this number is to be used to associate the claim with exportation evidence retained by claimant.” See Note 1, 19 CFR § 191.53(e)(3).

The information required for the chronological summary of exports at the time the claim was filed in 1996 and the requirements at the time the claim was verified in 2005, while similar, do differ in what constitutes proof of export. See Column 3, of chart below. Whereas a unique export identification number is required under the current Regulations, the 1996 Regulations would allow freight or air waybill, bill of lading, manifest, or other evidence retained by claimant to be used to associate the claim with exportation. Compare 19 CFR § 191.73(b) [2005] and 19 CFR § 191.53(e)(3) [1996]. A comparison of the chronological summary of export information requirements for 1996 and 2005 is provided below.

1
2
3
4
5
6
7
8
19 CFR 191.53(e) (3) [1996]
Date of Export
Exporting Carrier
Freight/air waybill, bill of lading, manifest # n1 Marks & Numbers
Description
Net Quantity
Schedule
Destination
19 CFR 191.73(b)
[1998-present]
Date of Export
Exporter if not claimant
Unique export identifier#n2
Description
Net Quantity
Schedule
B or HTSUS #
Destination n1 This number is to be used to associate the claim with exportation evidence retained by claimant. n2 This number is to be used to associate the export transaction presented on the chronological summary of exports to the appropriate documentary evidence of exportation (for example, bill of lading, manifest, invoice, identification of vessel or aircraft and voyage or aircraft number).

The distinction between the 1996 and current chronological summary requirements is significant. Revisions to the original exporter’s summary requirements were prompted by interest in making the drawback process more efficient. The evidentiary value placed upon the chronological summary to establish the fact of exportation is apparent in the regulatory history relating to this section. In response to complaints that it caused “needless excessive paperwork with no apparent benefits to claimants or Customs.” Customs insisted: “[The Exporter’s summary] is necessary so that the timeliness of exportation can be determined after a rapid review by the liquidator.” See T.D. 83-212 (Dec. 12, 1983). In response to numerous recommendations during the period for comments on what type of information should be included and what should be omitted, Customs acknowledged that some categories of information may be unnecessary while other categories remained critical. See Id. (acknowledging “there may be some merit” to requests for eliminating other categories of information and, by consequence, revised the language of section 191.53(e)(3) to provide for a format that “shall be acceptable to the regional commissioner an shall contain ‘substantially the data provided for in the following sample format”’ (emphasis added)). Most notably for purposes of review in this instance, information on the “destination” of the subject merchandise was considered to be an essential element of the exporter’s summary whereas specifics such as the “marks and numbers” was less critical to the claim. Id. (concluding that, despite comments objecting to, and seeking the removal of, requirements for “identity and location of the ultimate consignee of the exported articles,” such information was still needed”). See T.D. 83-212 (Dec. 12, 1983). Accordingly, evidence of export for each claim is to be adjudged against the format set out by, and data specified in, 19 CFR § 191.53(e)(3).

1. June 20th Claim, UC1-XXXXXX5-6

As previously noted, although Customs denied the claim for entry of UC1-XXXXXX5-6 for not providing sufficient evidence of exportation under 19 CFR § 191.72, the appropriate standard to assess evidence of export is under 19 CFR § 191.53(e)(3). See Cargil-Citro America v. U.S., 395 F.Supp. 2d 1222; Customs Form 29 for Entry No. UC1-XXXXXX5-6 (Protestant’s Exhibit C). Protestant disputes the CBP Specialist’s conclusion that information was missing from the chronological summary of exports and agues that all required information was provided with the chronological summary at the time the claim was submitted.

To support the contention that all required information is contained in the chronological summary, Protestant instructs “Destination” of exportation is provided on the fifth column of the chronological summary of exports, under the “Marks & Numbers of Packages (Exported)” column. Protestant advises that the acronyms listed under this column – “KBM POC” and “KBM Mexico” stand for “Konica Business Machines Pickering Ontario Canada” and “Konica Business Machines Mexico.” See Customs Protest and Summons, CF 6445, Contin. of Protest No. 3901-05-100542, para.3. Protestant further explains that references to “RDM” and “UBM” under the column titled “Export Ref # & Date of Export” refer to shipments to Canada and Mexico respectively. See Chronological summary of exports, column 1. Under the “Export Carrier” heading, Protestant identifies all exports to Canada as being shipped via “Kingsway” truckers and that exports to Mexico are shipped through Consolidated Freightways (“CF”). See Memorandum in Support of Protest at 9-10, (June 14, 2005). See also Chronological Summary of exportation, Claim UC1-XXXXXX23, Exhibit E.

In addition to the evidence of export and in accordance with the note appended to column 3 of the 1996 requirements for exporter’s summary (stating: “This number is to be used to associate the claim with the exportation evidence retained by claimant”), the Port is directed to review other export numbers associated with the claim. Other documents in the Customs file which contain numbers that associate the June 20th claim with exportation include Customs Forms 7539, which lists “Pick. Ont. Canada Mexico” (Box 6) as the Ultimate Port of Destination; a copy of the Mexican Customs entry, “Pedimento de Importacion” (Feb. 7, 1994); and a cover letter from Mr. Rohan to the Liquidation Unit of the Boston Port, which identifies the destination of the disputed claims as Canada and Mexico. Although these documents are not of the type specifically identified in column 3 as evidence of exportation, the explanatory note indicates that these documents are to be used to associate the claim with exportation evidence. Therefore, in aggregate, these documents furnish evidence of destination of export, the missing element in the chronological summary.

Accordingly, while on its face, this chronological summary of exports is insufficient because it lacks a “Destination” column, thereby appearing to have omitted information required on the exporter’s summary, upon Protestant’s explanation of the meaning of the acronyms in the first and fifth column, it is apparent that the chronological summary did include information about the export carrier and ultimate destination, as required pursuant to 19 CFR § 191.53(e)(3), albeit without the proper column heading.

When the evidence in Customs file and the evidence provided by Protestant are considered in the aggregate, mislabeling the “Port of Destination” column as “Marks and Numbers” and the omission of details pertaining to the later column constitutes harmless error because information on destination was provided. USCS Federal Rules of Civil Procedure, Rule 61, Harmless Error: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Under CBP Mitigation Guidelines, in situations where there is an omission as to material fact which was required to be stated in an application for a license or permit, mistakes which could not possibly harm the government's interests should be construed as “harmless error” and should be mitigated in full. 19 CFR Part 171, Appendix C, Customs Regulations Guidelines for the Imposition and Mitigation of Penalties for Violations of 19 USC 1641(d)(1)(A). The acknowledgement in the regulatory history that “there may some merit” to complaints that not all information in the exporter’s summary is needed, and the subsequent elimination of the “Marks and Numbers” category in the current Regulations, suggests that an omission of the “Marks & Number” would not be found to harm the government’s interests. The essential information – date of export, exporting carrier, net quantity, Schedule B number, destination, and numbers associating the claim with the exportation evidence – were all provided. With all requisite information available, CBP had the ability to verify the accuracy of the drawback claim and evaluate the assertions of exportation. Therefore, the Protestant’s failure to provide this information in the precise format specified under the Regulations constitutes harmless error.

Imperfections in export documentation which are harmless error do not provide a sufficient basis upon which to deny drawback. See St. Paul & Fire & Marine Ins. Co. v. United States, 799 F.Supp. 120 (CIT 1992), reversed, 6 F. 3d 763 (Fed. Cir. 1993)(finding “the failure to give a statutory reason for extension of liquidation on a notice of extension of liquidation was harmless error and, therefore, the entries should not have been liquidated solely as a result of the defect in the notice of liquidation”). Accordingly, the omission of this information in the chronological summary does not provide a basis upon which to deny the June 20th Claim.

It is thus apparent that the June 20th claim substantially comported with the requirements of 19 CFR § 191.53(e)(3). For all the reasons set forth above, there is sufficient evidence of export. The failure to verify that information within three years of payment of the claim is not a basis to deny drawback.

2. April 15th Claim, UC1-XXXXXX2-3

Protestant also contests the denial of drawback on merchandise for which a claim was filed on April 15, 1996 and liquidated on April 8, 2005. As with the prior claim, although the port rejected the claim for drawback due to a lack of evidence pursuant to 19 CFR § 191.72, sufficiency of evidence of export should be adjudged pursuant to the 1996 Regulations, the standards at the time the claim was filed. See Cargill, 395 F. Supp.2d 1222, supra at 6. See also Notice of Action, CF 29 (March 15, 2006). Unlike with the June 20th claim, however, in this instance, there is no chronological summary of exportation on file. Instead, the only records available to support this claim are: the Same Condition Merchandise Claim, CF 7539 (Protestant’s Exhibit D); a cover letter, from KMBS to the Boston Port, identifying the entries as covering shipments to Canada and the United States” (Protestant’s Exhibit G) and related drawback “calculation worksheets.” Also included is an affidavit from KMBS Traffic and Customs Manager Rohan, stating the requisite documentation was submitted with all claims as regular course of business in Protestant’s drawback program (Protestant’s Exhibit A). Pursuant to a FOIA request, Protestant received from the Port, and subsequently submitted to this Office, a Drawback Affidavit which included information on the port code, date and amount of entry and establishes that drawback claimed for EC96-01 (Protestant’s Exhibit F) and the ACS Drawback Status Refund information for entry numbers under this claim (Protestant’s Exhibit G). The Drawback Affidavit establishes entry number 946XXXXX2-6 is referred to “KPI 5391” for KMBS internal tracking purposes. See Protestant’s Exhibit F. KPI 5391 and Drawback number EC 96-01 share the same invoice number (GC 540A) on a coding sheet submitted by the Protestant, thereby establishing KPI 5391 and Drawback EC 9601 are part of the same entry. See Protestant’s Exhibit F. The ACS “Status Refund” for entry 946XXXXX2-6 shows that of the $1,029.13 paid, $1,204 was refunded ($175.55 in interest accrued) as antidumping duties on November 21, 1997. See Protestant’s Exhibit G.

In furtherance of its contention that sufficient evidence of export accompanied the April 15th drawback claim, KMBS Customs Manager Rohan states: “It was always the standard operating procedure at KBT to prepare the chronological summary of exports and submit it to Customs along with the other documents which comprised each drawback entry, since we were all aware that this document was explicitly required for drawback claims under the export summary procedure, and I always look for the chronological summary of exports when conducting my final review of the claim before filing.” See Rohan, Affidavit at paragraph 26 (Protestant’s Exhibit A, p.7). While an affidavit cannot be afforded the same evidentiary weight as that of testimony, it may be used in conjunction with other evidence to support a position. To bolster the position that Rohan’s affidavit has probative value, Protestant refers to the Court’s decision in Aurea Jewelry Creations, Inc. v. United States, which held that gaps in the documentary evidence could be satisfied by testimony by the manufacturer’s personnel at trial which corroborated the documentary evidence. See 720 F. Supp. 189 (Ct. Int’l Trade 1989), aff’d, ___ F.2d __. Court No. 90-1147 (CAFC May 6, 1991). The situation here, however, is distinguishable from that in Aurea Jewelry because testimony is not at issue in this case. See HQ 223235 (stating “Protestant’s argument that the lack of records showing entry into production can be cured by testimony or affidavit is misplaced. An affidavit is not the equivalent of testimony at trial because an affidavit is not subject to cross-examination and, therefore, not entitled to the same weight as testimony in court”, citing Andy Mohan, Inc. v. U.S., 537 F.2d 516, (1976)). See generally Mannesmann-Meer, Inc. v. United States, 58 C.C.P.A. 6, 433 F.2d 829 (1970) (concluding: “The strength of the evidence should be assessed in practical terms, considering such factors as completeness, adequacy of bases, and possible motives to deceive”).

Accordingly, when viewed in the aggregate, the affidavit and aforementioned documents lend credence to the assertion that evidence of exportation had been documented with Customs at that time the claim was filed (February 21, 1996). The cover letter stating the claim covers shipments to Canada and Mexico, which “have been made under the exporter’s summary and accelerated payment procedures that are filed with your office,” includes the code “EC 96-01” as a tracking or reference number. The “EC 96-01” code again appears in a KMBS coding sheet with entry as KPI 5391. KPI 5391, in turn, appears in association with entry number 946XXXXX26 on the Drawback Affidavit.

CBP Regulations, policy and case law further support a conclusion that evidence of exportation was present. At the time this claim was accelerated, CBP Regulations for verification of drawback claims mandated: “A drawback claim filed under a drawback contract shall be subject to verification by the director at whose port the claim is filed when the factory covered by the claim also is located at the same port.” 19 CFR § 191.10(a) [1996]. It is further provided under the 1996 Regulation for: “The verifying official shall verify the claim and material set forth in the related drawback contract. Verification shall include an examination of the manufacturing records and all the accounting and financial records relating to the transaction(s).” 19 CFR § 191.10(c) [1996] (emphasis added). The CF 7539 associated with the April 15th Claim indicates that documents to support the drawback claim are “per attached sheets.” Under the 1996 Regulations, CBP officials would have been obligated to review not only the chronological summary but also all associated materials to ensure the claim was complete prior to accelerating the April 15th drawback claim. Under the current provision, 19 CFR § 191.61(b), CBP officials are not obligated to, but “may” review related documents: “The verifying office shall verify compliance with the law and this part, the accuracy of the related general manufacturing drawback ruling or specific manufacturing drawback ruling (as applicable), and the selected drawback claims. Verification may include an examination of all records relating to the transaction(s) (emphasis added). 19 CFR §191.61(b).

Furthermore, it is a well-established principle that CBP officers are presumed to fulfill their duties correctly and responsibly. 19 USC § 2639, Burden of proof; evidence of value, provides: (a) (1) “Except as provided in paragraph (2) of this subsection, in any civil action commenced in the Court of International Trade under section 515, 516, or 516A of the Tariff Act of 1930 [19 USCS §§ 1515, 1516, or 1516a], the decision of the Secretary of the Treasury, the administering authority, or the International Trade Commission is presumed to be correct. The burden of proving otherwise shall rest upon the party challenging such decision.” See 28 USC § 2639. See also Pillsbury Co. v. United States, 293 F.Supp. 2d 1351, 1354 (2003, CIT), 25 BNA Intl Trade Rep. 2349 (holding: “Customs’s decision[s] enjoy a statutory presumption of correctness, and the burden of proving otherwise rests upon the party challenging such decisions”), The American Grenier Electronic, Inc., 79 Cust. Ct. 92, 441 F. Supp. 915, 920 (Nov. 4, 1977)(stating: “[T]he appraiser’s action is presumed correct”); Frank P. Dow Co. v. United States, 59 Cust. Ct. 697, 276 F.Supp. 1013 (1967), and on other grounds, on reh (1968, Cust Ct) 60 Cust Ct 758. See also Lee & Co. v. United States, 15 Ct. Cust. App. 202, 205 (1927), citing Morse Bros. v. United States, 13 Ct. Cust. App. 553 (finding: “This court has heretofore held that the presumption of correctness of the collector's finding stands until, at the trial, some substantial evidence to the contrary is offered and that then the presumption ceases to exist, and the one asserting the correctness of the collector's finding must then meet the testimony submitted in opposition to the collector's finding”); E. I. Du Pont de Nemours & Co. v. United States, 27 C.C.P.A. 146, 148 (1939) citing United States v. Marshall Field & Co., 17 C.C.P.A. 1, T. D. 43309 (holding: “It is well established that the collector is presumed to have found every fact to exist that was necessary to sustain his classification”). It is further presumed under predecessor to 28 USCS § 2639 that appraisers have found every existing fact necessary to sustain their appraisements. See James C. Goff Co. v. United States, 61 Cust. Ct. 506 (1968), 290 F.Supp. 769, affd (1971) 58 CCP 147, CAD 1019, 441 F.2D 671. In accordance with the presumption of correctness, it is appropriate to assume that CBP officers would not have accelerated an incomplete claim without the information referenced as in the CF 7539, “Information per Attached Sheets”.

The claim refers to attachments that were not present when the file was received from the Boston CBP office. Protestant insists, however, that the exporter’s summary was present when the subject claim was filed. To corroborate this claim, Protestant refers to: the statement of its manager that it was his practice to use the exporter’s summary procedure; the use of the exporter’s summary procedure on the June claim; and the presumption that the Boston CBP office adhered to the requirement to check for completeness of a claim before authorizing an accelerated payment.

The Chicago Port also denied the April 15th Claim due to three import entries that “reliquidated after the filing of the drawback claim and thus potentially could cause a reduction in the accelerated payment amount.” See Notice of Action, CF 29 (March 15, 2005). Protestant argues that that the refunds on the contested entries were for antidumping duties that were deposited on certain Japanese belts and bearings for which Protestant did not claim drawback. See Protestant’s Exhibit G, Memorandum in Support of Protest at 14; Drawback Status Refund ACS Screens for Liquidations 946XXXXXX26/82/58 (listing “Refund RSN” as “Antidumping Duties”). See also Protestant’s Exhibit A, Rohan Affidavit at 7, para. 28 (stating “In 1996, the only merchandise imported by KBT on which antidumping duties were deposited consisted of certain belts and bearings. KBT did not export such belts and bearings to Canada and Mexico, and KBT did not identify any such merchandise or the duties paid thereon as the basis for any claim of drawback, including those two claims which are in question”). The Chicago Port has subsequently acknowledged that the reliquidation of the three drawback entries should not have been a basis for denying the entire claim, but instead should have served to reduce only in the drawback in the amount of those entries. See Exhibit J. The Port further confirmed, however, that there is no record of Notice of Correction to verify that the merchandise underlying the import entries is part of the April 15th claim. Without any evidence to controvert Protestant’s assertion, there is no basis upon which to proportionally reduce drawback refunded for this claim. For the reasons set forth above, drawback of this claim should not have been denied.

HOLDING:

The protest of the denial of both drawback claims is granted. The protest is GRANTED in regard to the June 20th, 1996 ($38,604.92) claim. The protest is GRANTED in regard to the April 15, 1996 ($38,847.47) claim.

Consistent with the decision set forth above, you are hereby directed to grant the June 20th and the April 15th protests. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Sixty days from the date of the
decision the Office of International Trade will take steps to make the decision available to CBP personnel and to the public on the CBP 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

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