HQ 220179: 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).

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      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
          (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