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HQ 227244

May 8, 1997

DRA-2-02/CON-3-RR:IT:EC 227244 SAJ


Port Director
U.S. Customs Service
ATTN: Protest Section
P.O. Box 343
Los Indios, TX 78567

RE: Application for further review of Protest No. 2304-95-100225; 19 C.F.R. 101.1(k); "Exportation"; 19 U.S.C. 1514; 19 U.S.C. 1313(j)(1); C.S.D. 84-6;
HQ 222284; HQ 223791; T.D. 55091(4)

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.


Chevron Chemical Co. (protestant) entered two tank cars (CHVX 280897 and NATX 72400) from their affiliate in Mexico into the United States. Listed below for each of the entries, are the entry number, entry date, liquidation date, import date, invoice number and amount, and amount of merchandise imported.

Entry No. Entry Liq. Date Invoice Invoice Invoice Amt.
Date No. Date Amt.

693-8 06/07/95 09/22/95 8827 05/30/95 $76,111.20 84,568 kg

597-1 06/03/95 09/15/95 8804 05/26/95 $85,425.30 74,335 lts

190-3 08/03/95 11/17/95 0097 07/31/95 $76,111.20 84,568 kg

366-9 08/15/95 12/01/95 0095 07/31/95 $85,425.30 74,335 lts

The following entries were entered in the listed tank car:

Entry No. Tank Car

693-8 CHVX-280897

597-1 NATX-72400

190-3 CHVX-280897

366-9 NATX-72400

The evidence indicates that one of the tank cars was imported on June 3, 1995 and the other one on June 7, 1995. The merchandise contained in the tank cars was invoiced on invoice numbers 8804, dated May 26, 1995, and 8827, dated May 30, 1995. Protestant contends that the railroad company inadvertently returned the two tank cars to Mexico.

Protestant also alleges that the protestant believed the two tank cars were empty and were sent to Mexico to be refilled, and did not realize the two tank cars still contained the original merchandise. Protestant alleges that the original tank cars did not arrive at their destinations and therefore were never unloaded.

Protestant further contends that the same two tank cars were entered again. One of the tank cars was imported on August 3, 1995, and the other one on August 15, 1995. The merchandise contained in the tank was invoiced again on invoice numbers 0095 and 0097, both dated July 31, 1995.

The file contains the following documentary evidence:

A short message dated July 31, 1995 from Mr. Bill Cox, an account representative of the railroad company, stating that the tank cars were not unloaded in the United States and that the two tank cars still contained the original merchandise and were transported to Mexico in error;

Two railcar histories from the railroad company, corresponding to the two tank cars involved, indicating that one tank car (CHVX 280897) traveled throughout Texas from
June 7, 1995 through June 28,
1995. (This tank car made at least nine stops in different locations in Texas. No further information is provided as to where the tank car's whereabouts were between June 28, 1995 and August 3, 1995, when the tank car was imported into the United States from Mexico);

The history for the second tank car (NATX 72400) indicating that it traveled throughout Texas, Arkansas, and Illinois from June 10, 1995 through June 29, 1995. (There is no record as to what happened to the tank car from June 29, 1995 through August 15, 1995, when the tank car was imported into the United States from Mexico);

A letter dated July 31, 1995 from a distribution account representative for Chevron, stating that as a result of numerous errors, the two tank cars were inadvertently identified as empty and transported back to Mexico by the railroad company; and

Teleconference notes dated June 25, 1996, requesting documentation from the Corrigan Dispatch Company, protestant's broker, to support the contention that the two tank cars were in Mexican
Customs custody for an extended period of time.

No other documentation has been supplemented to Customs Laredo or this office, therefore we must process the subject protest for further review based on the documentary evidence listed above.


Whether an exportation exists within the meaning of 19 C.F.R. 101.1(k).


Time limits exist for the submission of a protest, which are established under the specific authority of the protest statute itself (19 U.S.C. 1514). The merits of a particular case will not be considered unless the 90-day statutory filing deadline is met. In this case, we note that the protest, with application for further review, was timely filed under the statutory and regulatory provisions for protests provided for under 19 U.S.C. 1514 and 19 C.F.R. Part 174.

19 C.F.R. 101.1(k) provides that "exportation" means a severance of goods from the mass of things belonging to this country with the intention of uniting them to the mass of things belonging to some foreign country. This definition is consistent with the decision of the Supreme Court in the leading case of Swan and Finch Co. v. United States, 19 U.S. 143 (1903) (see also, 17 Op. Att'y Gen. 579 (1883)). See also and National Sugar Refining Co. v. United States, 84 Cust. Ct. 118, 120 C.D. 4849; 488 F.
Supp. 907 (1980). The controlling factor in each of these cases was the intention of the party at the time of shipment.

Based on the protestant's own account of the transaction at issue, it did not intend to ship the two tank cars back into Mexico so that the tank cars would become part of the commerce of Mexico. The protestant cites to T.D. 55091(4) (1960), which ruled that whenever merchandise is returned to the United States following discovery that it was erroneously shipped, the transaction may be regarded as a nonexportation/nonimportation where it is clear that every effort is made to prevent the shipment from leaving the United States upon discovery of the error. At issue in this case is the interpretation of the phrase "erroneously shipped." "Erroneously shipped" refers to a shipment that was never meant to take place, but somehow did.

Similarly, in Customs Service Decision (C.S.D.) 84-6, Customs ruled that nonconsumable souvenir articles delivered to gift shops for sale to passengers on cruise ships could not be considered as articles exported to a foreign country because the ultimate destination of the souvenir articles was the United States. In that case, the merchandise was laden aboard the vessel in the United States, the vessels departed the United States for a cruise at sea, and returned to the United States. The rationale for Customs decision was that there was no showing of intent to export these articles to a foreign country. See also Headquarters ruling (HQ) 222284, dated July 30, 1990, and HQ 223791, dated April 15, 1992, holding that an exportation did not occur under similar circumstances. Thus, the case law on this subject is only concerned with the shipping (i.e., exporting) aspect of the transaction, and not to any particular contents of the shipment.

In the case at hand, protestant claims that the duties should be refunded by Customs because the merchandise contained in the two tank cars were nonexportations/nonimportations, since the two tank cars were erroneously returned to Mexico by the railroad company. However, we cannot find that the subject transaction constitutes a nonexportation/nonimportation as it had been defined in Customs law without documentary evidence.

In reviewing the evidence before us, there is insufficient information presented to support protestant's assertions that the subject merchandise was held in Mexican Customs custody. The evidence presented provides that two tank cars, both imported on two separate dates and both on different trains and routes, were both erroneously shipped for two months before anyone realized that they were in Mexico with their original contents. See letter dated July 31, 1995 from Don C. McKeehan, Jr. (company distribution account representative), indicating that the original tank cars never arrived at their destinations and therefore were never unloaded. The railcars came into the United States almost two weeks apart, once they were returned.

As stated in the FACTS portion of this ruling, no information is provided as to where the CHVX 280897 tank car was situated between June 28, 1995 and August 3, 1995. Similarly, there is no record as to what happened to the NATX 72400 tank car between June 29, 1995 and August 15, 1995. Documentation as to when the subject tank cars entered into Mexico is pertinent to protestant's claim. Further, there is no substantiating documentation that the merchandise remained in Mexican Customs custody during its stay in Mexico.

On June 25, 1996, Customs Laredo requested that broker provide documentation as to when the tank cars entered into Mexico and documentation substantiating the claim that the tank cars had been held in Mexican Customs custody. See teleconference notes between Mr. Don Ramey (broker) and Ms. Ana Hinojosa (Customs Laredo) dated June 25, 1996. No additional documentation was provided by protestant or protestant's broker. Without evidence supporting protestant's claim that the tank cars were exported at all, much less exported with the subject merchandise, we cannot find that an exportation of the merchandise took place.

Merchandise of foreign origin returned from abroad under the described circumstances is dutiable according to its nature, weight, and value at the time of its arrival into the United States. 19 U.S.C. 1313(j)(1) requires that imported merchandise be exported in order to qualify for unused merchandise drawback. In the case at hand, the subject merchandise allegedly left the United States temporarily would not satisfy the exportation requirements of section 1313 (j)(1).


There is insufficient evidence to support that a repeated exportation and importation of the subject merchandise took place as provided under 19 C.F.R. 101.1(k). Since a determination of exportation cannot be made, the merchandise does not qualify for a future unused merchandise drawback claim pursuant to U.S.C. 1313(j)(1). The protest is DENIED.

Consistent with the decision set forth above, you are hereby directed to deny the subject protest. 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. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision of the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.



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