Application for Further Review of Protest No 2809-2015-100233 concerning a claim for drawback under 19 U.S.C. § 1309(b).

H268703 September 29, 2017 DRA 1-02 H268703 SMS OT:RR:CTF:ER Port Director U.S. Customs and Border Protection Port of San Francisco 555 Battery Street, Rm. 109 San Francisco, CA 94111 Attn: Rolando Jocson, Drawback Specialist RE:      Application for Further Review of Protest No: 2809-2015-100233 concerning a claim for drawback under 19 U.S.C. § 1309(b). Dear Port Director: The above-referenced protest has been forwarded to our office for further review. We have considered the points raised by Prospect Enterprises, Inc. dba Kansas Marine Company, (“Kansas Marine”) regarding the denial of the drawback claim related to food products laden as vessel supplies on board cruise ships. We regret the delay in our response. FACTS: Kansas Marine is in the business of selling imported, duty-paid food items to various cruise lines. Kansas Marine, identified as the exporter, submitted ten drawback claims for foods and confections laden as supplies for vessels, to the U.S. Customs and Border Protection (“CBP”) San Francisco Drawback Office (“Drawback Office”) between November 13, 2013 and August 20, 2014. The drawback claims were assigned the following drawback entry numbers: xxx-xxxx127-5; xxx-xxxx135-8; xxx-xxxx136-6; xxx-xxxx143-2; xxx-xxxx146-5; xxx-xxxx150-7; xxx-xxxx151-5; xxx-xxxx171-3; xxx-xxxx172-1; and xxx-xxxx178-8. Beginning on January 24, 2014, the Drawback Office started requesting more information from Kansas Marine, in order to complete the liquidation of the claims. Subsequently, a full desk review of claim xxx-xxxx127-5 was commenced, and on March 26, 2014, the Drawback Office requested more documentation regarding proof of export. Between May 6, 2014 and October 20, 2014, Drawback Rejection Notices were issued to Kansas Marine and the Drawback Office again requested more information to substantiate the claims and determine proper rights to drawback. In particular, the Drawback Office requested an updated Export Chronological Summary, to include the export bill of lading (“BOL”) or vessel voyage number, and an explanation with sample documentation of the delivery process from the Kansas Marine warehouse to the cruise line. In response to the Drawback Office’s requests, CITTA Brokerage Company (“CBC”), on behalf of Kansas Marine, amended its claim, including CBP Forms 7551 and export summaries, on February 14, 2014, April 9, 2014, and June 5, 2014. Kansas Marine included in its claim: 1) a certified copy of the export invoices containing details of the goods, identity of the exporter, and a received stamp containing the dates, receiver initial, and vessel names; 2) an affidavit from the exporter “attesting to any remaining information required to establish proof of export”; and 3) a chronological summary of exports. Summary of Proof of Export Documents: Lead Drawback Entry: xxx-xxxx127-5 On December 26, 2013, Kansas Marine submitted an “Exporters Chronological Summary Report” (in date and part order) with exports from December 27, 2010 to December 22, 2011, which included: the date of export, the “unique export identifier”, the exporter (Kansas Marine), the description and quantity of the merchandise, and the Harmonized Tariff Schedule (“HTS”) number. Exporter’s Summary Report, contained the invoice number as the unique export identifier and the product number. Amended “Exporters Chronological Summary Reports” were submitted on February 14, 2017, which included less exports and ranged from December 30, 2010 until December 22, 2011. The February 14, 2011 submission contained the same data fields as described above for the original December 26, 2013 submission. On April 9, 2014, the “Exporters Chronological Summary Reports” were again resubmitted to the Drawback Office. This submission contained the same export date range and other data fields as the previous submission, and was amended to include a field for “Destination Country” which was described as “** vessel supplies.” On May 7, 2014, the Drawback Office determined that the unique export identifier provided by Kansas Marine was for the purchase order, instead of the export BOL number or the vessel voyage number. Accordingly, on June 5, 2014, Kansas Marine again submitted an amended Export Chronological Summary that included the invoice number, as the unique export identifier, and listed the purchase order in a separate column. A Declaration and Affidavit of Exporter, dated May 27, 2014, and signed by the Vice President of Kansas Marine, was also submitted, which described the procedures for lading vessels operated by cruise lines. In the affidavit, Kansas Marine explained that when an order is received from a cruise ship, it generates an invoice, identifying the merchandise and the ship on which the goods are to be laden. The order is then filled and the merchandise is removed from Kansas Marine’s warehouse and loaded onto a delivery truck, delivered, then placed onto the vessel by the longshoreman; but, no BOL is generated. As verification that the goods listed on the invoice are laden on the cruise ship, the invoice is stamped and signed by the master or other officer of the vessel, who oversees the lading of the goods. The date of delivery is the date of lading. Submitted with the affidavit was a list of “exports by invoice”, which included the date of lading, invoice number, purchase order number, port, carrier name, vessel name, part number, and quantity and description of the merchandise; an Entry Summary CBP Form 7501 dated June 18, 2010; two sample invoices dated April 22, 2010 and June 11, 2010; a purchase order dated June 11 2010; a Chronological Summary of Exports, a Certificate of Delivery with an attached October 4, 2013 spreadsheet of imports; “Receipts to Stock Journal” dated June 10, 2010; a sample Product History Detail sheet; and Lot Invoices dated May 27, 2014. Additionally, Kansas Marine submitted over 80 certified copies of invoices dated between December 28, 2010 and December 21, 2011, which included date stamps of receipt. Drawback Entry: xxx-xxxx135-8 November 13, 2013, February 14, 2014, April 9, 2014, and June 5, 2014 – Exporter’s Chronological Summary Report, listing: Dates of Export ranging from November 12, 2010 to December 26, 2010; unique export identifier; purchase order; exporter; description and quantity of merchandise, destination country - ** vessel supplies, and HTS number. Exporter’s Summary Report- Report- In Part Order, contained the invoice number as the unique export identifier and the purchase order. Drawback Entry: xxx-xxxx136-6 January 13, 2014, February 11, 2014, and April 9, 2014 – Exporter’s Chronological Summary Report, listing: Dates of Export ranging from January 13, 2011 to January 30, 2011; unique export identifier; exporter; description and quantity of merchandise, destination country - ** vessel supplies, and HTS number. Exporter’s Summary Report- Report- In Part Order, contained the invoice number as the unique export identifier and the purchase order. Drawback Entry: xxx-xxxx143-2 April 9, 2014 – Exporter’s Chronological Summary Report, listing: Dates of Export ranging from February 17, 2011 to April 15, 2013; unique export identifier; exporter; description and quantity of merchandise, destination country, vessel supplies (“VE”), and HTS number. Exporter’s Summary Report- Report- In Part Order, contained the invoice number as the unique export identifier and the purchase order. Drawback Entry: xxx-xxxx146-5 March 17, 2014 and April 9, 2014 – Exporter’s Chronological Summary Report, listing: Dates of Export ranging from March 18, 2011 to May 29, 2011; unique export identifier; exporter; description and quantity of merchandise, destination country -VE, and HTS number. Report- In Part Order, contained the invoice number as the unique export identifier and the purchase order. Drawback Entry: xxx-xxxx150-7 April 9, 2014 – Exporter’s Chronological Summary Report, listing: Dates of Export ranging from June 1, 2011 to August 30, 2011; unique export identifier; exporter; description and quantity of merchandise, destination country-VE, and HTS number. Report- In Part Order, contained the invoice number as the unique export identifier and the purchase order. Drawback Entry: xxx-xxxx151-5 April 9, 2014 and June 5, 2014 – Exporter’s Chronological Summary Report, listing: Dates of Export ranging from September 1, 2011 to December 31, 2011; unique export identifier; exporter; description and quantity of merchandise, destination country-VE, and HTS number. Report- In Part Order, contained the invoice number as the unique export identifier and the purchase order. Drawback Entry: xxx-xxxx171-3 May 1, 2014 and June 5, 2014– Exporter’s Chronological Summary Report, listing: Dates of Export ranging from November 7, 2011 to June 30, 2012; unique export identifier; exporter; description and quantity of merchandise, destination country-VE, and HTS number. Report- In Part Order, contained the invoice number as the unique export identifier and the purchase order. A Declaration and Affidavit of Exporter, dated June 9, 2014, and signed by the Vice President of Kansas Marine, was also submitted, which described the procedures for lading vessels operated by cruise lines. Submitted with the affidavit was a list of “exports by invoice”, which included the date of lading, invoice number, purchase order number, port, carrier name, vessel name, part number, and quantity and description of the merchandise. Drawback Entry: xxx-xxxx172-1 May 19, 2014 and November 17, 2014 – Exporter’s Chronological Summary Report, listing: Dates of Export ranging from May 21, 2011 to August 31, 2013; unique export identifier; exporter; description and quantity of merchandise, destination country-VE, and HTS number. Exporter’s Summary Report- In Part Order, contained the invoice number as the unique export identifier and the purchase order. Drawback Entry: xxx-xxxx178-8 November 10, 2014 – Exporter’s Chronological Summary Report, listing: Dates of Export ranging from April 6, 2012 to June 29, 2014; unique export identifier; exporter; description and quantity of merchandise, destination country (PO, B, FT, and PI), and HTS number. Exporter’s Summary Report- In Part Order, contained the invoice number as the unique export identifier and the product number. Between October 10, 2014 and January 2, 2015, CBP liquidated the drawback entries at “zero”, for failure to provide sufficient proof of export, effectively denying the claims. On April 2, 2015, Kansas Marine, filed the instant protest, for denial of its drawback claims. Submitted with its protest, Kansas Marine started acquiring Drawback Notices, CBP Form 7514, for each of the exports included in the claim. The submitted CBP Forms 7514 contains an incomplete “Declaration of Master or Other Officer” section; they do not include the name or signature of any officer of the vessel of laden. Also submitted with its protest, Kansas Marine has amended the chronological summary of exports to include the name of the vessel upon which the goods were laden. These more recently submitted forms have been backdated and date stamped to correspond with the export invoice date. Kansas Marine asserts, in its June 5, 2014 submission, that all of the documentation submitted was comparable to that requested in CBP Form 7514 and should be sufficient to establish exportation. Kansas Marine maintains that Drawback Notice, CBP Form 7514, is not the only proof of export allowed for vessel supplies pursuant to 19 C.F.R. § 191.112, and that the list included in 19 C.F.R. § 191.72, is not all inclusive of documentary evidence sufficient to fully establish the date and fact of exportation, as well as the identity of the exporter. Conversely, the Drawback Office contends that, while CBP Form 7514 is not required, the combination of the requirements listed in 19 C.F.R. §§ 191.37, 191.112(d)(1), and (f)(1) must be fully met, which the Drawback Office believes were not. Specifically, the Drawback Office asserts that Kansas Marine’s Declaration and Affidavit of Exporter does not support proof of export, and cannot take the place of the declaration by the master or other officer of the vessel. Additionally, the Drawback Office contends that the export invoices, certified as a true and correct copy by the Vice President of Kansas Marine, are not sufficient proof, as they were not certified by a disinterested third party, having knowledge of the exportation or corroborated by any other documentation. ISSUES: Whether the documentation, not created at the time of transaction nor kept in the normal course of business, is reliable evidence to establish proof of export. Whether an affidavit, from an interested party, is an acceptable method of supplementing evidence of exportation. Whether Kansas Marine provided sufficient proof of exportation, pursuant to 19 C.F.R. §§ 191.72 and 191.112. 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). The instant protest was timely filed, within 180 days from the date of liquidation. See 19 U.S.C. § 1514(c)(3)(A). CBP denied Kansas Marine’s first drawback claim on October 10, 2014, when it liquidated the subject entries without drawback, and this protest was filed on April 2, 2015, within 180 days. Kansas Marine requests further review per 19 C.F.R § 174.24. Under 19 C.F.R. § 174.24, further review shall be accorded a party when the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by CBP. See 19 C.F.R. § 174.24(b). Upon review of the application for further review, we find that these facts have not been the subject of a CBP ruling. See 19 C.F.R § 174.24(b) and 19 C.F.R § 174.26(b)(1)(iv). Accordingly, further review is warranted. In general, proof of exportation requires evidence of the intent for the merchandise to unite with the mass of things belonging to that of another country, and evidence that the merchandise was severed from the United States. See 19 C.F.R. § 191.2(m)(1). The CBP regulations contained in 19 C.F.R. § 191.72 explain that: “exportation of articles for drawback purposes must be established by complying with one of the procedures provided for in this section. . . .” Documentary evidence of exportation must establish fully the date and fact of exportation and the identity of the exporter. The procedures for establishing exportation include, but are not limited to: (a) Documentary evidence of exportation (originals or copies) issued by the exporting carrier, such as a bill of lading, air waybill, freight waybill, Canadian Customs manifest, and/or cargo manifest;” (b) Export summary (§ 191.73); (c) Official postal records (originals or copies) which evidence exportation by mail (§ 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). 19 C.F.R. § 191.72. Section 309 of the Tariff Act of 1930, as amended (19 U.S.C.§ 1309(b)) allows drawback on articles laden as supplies on certain vessels or aircraft of the United States, or as supplies, including equipment laden, or used in, the maintenance or repair of, certain foreign vessels or aircraft. Section 1309, provides that such articles laden as supplies upon any such vessel or aircraft of the United States, shall be considered to be exported within the meaning of the drawback provisions. 19 U.S.C. § 1309(b); see also, 19 C.F.R. § 191.111. Unless otherwise provided, the exporter (or destroyer) shall be entitled to claim drawback, unless the exporter (or destroyer), through certification, waives the right to claim drawback and assigns such right to the manufacturer, producer, importer, or intermediate party. See 19 C.F.R. § 191.82. The exporter is defined in the regulations as the principal party in interest in the export transaction that has the power and responsibility for determining and controlling the sending of the items out of the United States. See 19 C.F.R. § 191.2 (m)(2). In the case of deemed exportations, through aircraft or vessel supplies under 19 U.S.C. 1309(b), the party who has the power and responsibility for lading the vessel supplies on the qualifying aircraft or vessel, is the exporter. Id, see e.g., HQ 227826 (Oct. 20, 1998) (For purposes of claiming drawback under 19 U.S.C. §1309(b), only the entity which transfers title to an airline or vessel owner, in a transaction in which certain contractual and evidentiary criteria are met, and which obtains the CF 7514 signed by the carrier on a qualifying flight or vessel operator for a qualifying voyage, will be considered to have the power and responsibility for the lading onto an eligible aircraft or vessel).  The regulations governing drawback under 19 U.S.C. § 1309(b) are codified in subpart K and the exportation procedures necessary to file a drawback claim under 19 U.S.C. § 1309 are outlined in 19 C.F.R. § 191.112, which states in pertinent part: The drawback claimant shall file with the drawback office the drawback entry on Customs Form 7551 annotated for 19 U.S.C. 1309, and attach thereto a notice of lading on Customs Form 7514, in quadruplicate, unless the export summary procedure, provided for in § 191.73, is used. If the export summary procedure is used, the requirements in § 191.73 shall be complied with, as applicable, and the requirements in paragraphs (d)(1) and (f)(1) of this section shall also be complied with. 19 C.F.R. § 191.112(b). These procedures outline two different manners in which to provide proof of export in a drawback claim on articles laden as supplies on a vessel. Either 1) file CBP Form 7551 with CBP Form 7514 attached, or 2) follow the export summary procedures provided in 19 C.F.R. § 191.73 and 19 C.F.R. §§ 191.112(d)(1) and 191.112(f)(1). Additionally, under 19 C.F.R. § 191.112(c), in the case of drawback claims made under 19 U.S.C. § 1309(b), the drawback notice of lading, CBP Form 7514, may be filed either before or after the lading of the articles. However, if filed after lading, the notice must be filed within three years of exportation. See 19 C.F.R § 191.112(c). Accordingly, if a claimant chooses not to submit CBP Form 7514, they must submit a Chronological Summary of Exports (19 C.F.R. § 191.73); the name of the vessel on which the articles were or are to be laden (19 C.F.R. § 191.112(d)(1)); and the master or an authorized representative of the vessel, having knowledge of the facts of exportation, must complete the “Declaration of Master or Other Officer” (19 C.F.R. § 191.112(f)(1)). Additionally, the declaration of the master or other officer or representative may be filed as a separate document from the notice of lading. See 19 C.F.R. § 191.112(f)(4). The regulations do not require a specific form to confirm exportation, but describe acceptable documentary evidence if such evidence identifies the goods at issue and shows the fact and date of exportation. See Headquarters Ruling (“HQ”) H082576 dated, January 18, 2012. Therefore, any procedure used to establish export, whether or not included in 19 C.F.R. § 191.72 (a) through (e) outlined above, must “establish fully the date and fact of exportation.” See also Customs Directive No. 3740-009, Drawback Proof of Export Requirements, dated May 13, 2002 (explaining that proofs of export must individually or collectively contain all of the legal elements required by the CBP regulations). Whether documentation, not created at the time of transaction nor kept in the normal course of business, is reliable evidence to establish proof of export. When analyzing the accuracy of export documentation, CBP has consistently held that documents relied upon to establish the date and fact of exportation, should be created at or near the time of exportation, and kept in the normal course of business. In HQ H082576, the importer was unwilling to provide Michelin, the drawback claimant, with a copy of the Mexican import pedimento (Mexican entry documentation), as actual proof of exportation. Therefore, CBP was asked to determine whether the Relacion de Factura (“RDF”), which provides identifying data and is stamped by Mexican Customs at the time of arrival in Mexico, was sufficient proof of exportation for drawback purposes. The RDF included stamps affixed by Mexican Customs that confirmed the time and date of importation of the merchandise into Mexico and the receipt of the goods at the importer’s factory located approximately 26 km inland. Michelin submitted the RDF to CBP, corroborated by commercial invoices. CBP found that the stamp indicating the merchandise cleared Mexican Customs, if affixed to the RDF, would establish the date and fact of export. While the RDF did not provide a description of the merchandise, it referenced the invoice numbers and the total quantity and value of all the merchandise found on the invoices. CBP held that the RDF, created at the time of arrival in Mexico, and accompanying commercial invoices were sufficient documentary evidence to establish proof of export for drawback under 19 C.F.R. §§ 191.72 and 181.47. In HQ 229566, dated September 17, 2002, a protestant argued that the totality of documents submitted were sufficient to establish the date and fact of an exportation. In this ruling the export documents submitted were invoices, packing lists, and Canadian Customs entry forms, which were records created at the time of the exportation transaction and kept in the normal course of business. Additionally, claimant submitted an “Exports to Canada Affidavit” signed by the Vice President and Assistant Secretary, which was executed six years after the proffered date of exportation. CBP discussed the general prohibition of hearsay evidence, including written assertions, and the exception to such prohibition, if the written assertion was created by a person with knowledge and kept in the course of the regularly conducted business activity. See HQ 229566 (quoting Fed. R. Evid. 801(a) and 803(6)). In HQ 229566, CBP found that declarations that were not made at or near the time of the transaction and not kept in the normal course of business were not sufficient to demonstrate date and time of export. As such, CBP found that the affidavits by the company’s Vice President, issued well after the transaction date, were entitled to little weight for the purpose of proof of export. In H155515, dated August 15, 2014, CBP discussed whether the confirmation of receipt, signed by the exporter’s customers, were sufficient to demonstrate the date and time of export. The confirmation stated that the date of receipt of invoice was December 14, 2006; however, it was signed on June 1, 2007, which indicated that it was not made at or near the time of export. Additionally, there was nothing to indicate that the confirmation of receipts were records kept in the ordinary course of business. Moreover, CBP explained that affidavits or statements made under oath before an authorized officer, which were not supported by other documentation and issued well after the transaction date, were entitled to little weight for purposes of proof of export. In H15515, CBP determined that while the invoices and purchase orders demonstrated an intent to unite the merchandise with the goods of a foreign country, by themselves, they did not show date, time, and fact of export. CBP held that proof of export cannot rely on the confirmation of receipt to show date and time of export, if not kept in the ordinary course of business and not created at the time of the transaction. Here, Kansas Marine failed to file CBP Form 7514, Drawback Notice of Laden, within three years of the date of exportation of its vessel supplies, pursuant to 19 C.F.R. § 191.112(c), as it did not begin to submit the notices until the instant protest was filed on April 2, 2015. Additionally, the forms submitted are incomplete, as the “Declaration of Master or Other Officer” sections do not include the name or signature of the officer who received the articles on the vessel. Moreover, Kansas Marine backdated the submitted forms, to the date of export, in an attempt to cure the fact that the three year deadline was missed. Kansas Marine also submits a “Declaration and Affidavit of Exporter” which explains its types of business, the type of trade that the vessel was engaged in, and it is signed by the Vice President of the company, notarized on May 27, 2014, in an attempt to provide the necessary information to demonstrate proof of export. The CBP Forms 7514, were created over three years after the declared time of exportation, and therefore were not made at or near the time of transaction. Additionally, the Vice President’s “Declaration and Affidavit of Exporter” was not made at or near the time of transaction, nor kept in the ordinary course of business. As CBP held in HQ 229566 and H155515, these declarations, not made at or near the time of transaction, nor kept in the ordinary course of business, are insufficient to demonstrate date and time of export. Furthermore, the veracity of the CBP Forms are additionally called into question as the date on the forms were intentionally backdated, and do not reflect the true date of their creation, which specifically makes these forms inaccurate and unreliable. Backdating will not cure the tardiness of a submission, and is an unacceptable practice. See e.g., HQ 561820 (June 19, 2002) (If a certificate is on an unapproved form, the remedy to correct the certificate requires completion of a new form; it would be inappropriate to require or allow the backdating of the new form). Whether an affidavit, from an interested party, is an acceptable method of supplementing evidence of exportation. Legacy Customs Service Decisions (“C.S.D.), have longstanding holdings explaining that when CBP is analyzing the veracity of export documentation, affidavits of proof of export, should be created by a disinterested third party. In C.S.D. 79-254, dated December 5, 1978, Customs discussed the need to prevent error and fraud in export documentation. C.S.D. 79-254 indicated that the list set forth in the regulations is not exclusive and a variety of documents may be used to support notices of exportation. C.S.D. 79-254 held: In determining whether a document is acceptable as evidence of exportation, there are two possibilities of error or fraud which the Customs Service wants to avoid: (1) That a claimant will prepare self-serving evidence, and; (2) That a claimant will file more than one claim for drawback, based on a single exportation, by using multiple copies of company documents. Normally, these instances of error or fraud can be avoided if the document submitted is certified by a disinterested third party, for example, the carrier, or a customs officer.  C.S.D. 79-254 (Dec. 5, 1978). Customs held that company invoices are not acceptable to prove exportation; however, other documents, such as inland bills of lading certified by the carrier, customs officer, or another disinterested third party having knowledge of the exportation, are acceptable. Id. While the requirement of certified copies has been removed, since the issuance of this decision, the need to prevent error and fraud still stands. Accordingly, a statement of a disinterested third party is still necessary to prevent the possibility of error and fraud, and the preparation of self-serving evidence. In HQ 224791, dated December 15, 1993, CBP held that the drawback claimant is required to keep the original bills of lading accurate and available for audit purposes, as proof of exportation. CBP explained that the rationale for the retention of the original bills of lading is that there is a certification on it by a disinterested third party, such as the carrier, that the articles, in fact, have been exported. CBP explained that “this kind of evidence is more reliable than copies of self-serving internal company or corporate invoices documenting exportation.” In HQ 227868, dated October 19, 1998, CBP discussed the sufficiency of the claimant’s export documentation. While CBP mainly focused on the need for originals or certified copies of documents, which is no longer required, CBP determined that another way to demonstrate proof of export is by an affidavit from a disinterested third party, such as the truck driver who drove the merchandise into Canada. See also, HQ 226929, June 4, 1997 (Based on C.S.D. 79 254, CBP found that certification by the carrier or freight forwarder to whom the originals have been given, would be acceptable, as these are disinterested third parties who are entrusted with the original bills of lading for a period during the transaction.) While CBP has relaxed the requirements for submitting original or certified copies with drawback claims, the requirement that such declarations, statements, or affidavits of exportation or copies of certifications, be created by disinterested third parties, has not been removed and is still maintained today. Accordingly, self-serving interested party declarations, statements, certifications, or affidavits are not sufficient evidence to support proof of exportation. Whether Kansas Marine provided sufficient proof of exportation, pursuant to 19 C.F.R. §§ 191.72 and 191.112. As discussed supra, drawback regulations provide two procedures in which to provide proof of export in a drawback claim on articles laden as supplies on a vessel: either file CBP Form 7551 with CBP Form 7514 attached, or follow export summary procedures. Specifically, the export summary procedures require three pieces of evidence to support the proof of exportation. The first, a Chronological Summary of Exports, may be submitted as part of the claim in lieu of actual documentary evidence of exportation. See 19 C.F.R. § 191.73. The second, a notice of lading, must show the name of the vessel on which articles were or are to be laden. See 19 C.F.R. § 191.112(d)(1). Lastly, it is required that: “The master or an authorized representative of the vessel or aircraft having knowledge of the facts shall complete the section of the notice entitled “Declaration of Master or Other Officer”. 19 C.F.R. § 191.112(f)(1). Prior to the denial of their drawback claim, Kansas Marine’s export summaries contained the dates of export; unique export identifiers; exporter; description and quantity of merchandise, destination country, and HTS subheading number. These submissions failed to name the vessel on which the articles were laden and did not include the “Declaration of Master or Other Officer” as required in 19 C.F.R. 191.112(d)(1) and 191.112(f)(1). Submitted with its protest, on April 2, 2015, Kansas Marine started acquiring Drawback Notices, CBP Forms 7514, for their claims, which include “a declaration of the master of other officer for each of the exports included in the claim.” However, the CBP Forms 7514 are incomplete, as the “Declaration of Master or Other Officer” sections do not include the name or signature of the officer who received the articles on the vessel. Also submitted with the protest, Kansas Marine has amended the chronological summary of exports to include the name of the vessel upon which the goods were laden. These more recently submitted forms have been backdated and date stamped to correspond with the export invoice date. As discussed, beforehand, these backdated CBP Forms 7514 and late submissions are unreliable to establish proof of export. Only if the newly submitted CBP Forms 7514 are complete and accurate, are they acceptable to establish proof of export for any exports within the three years prior to their submission on April 2, 2015, as indicated in 19 C.F.R. § 191.112(c). As, Kansas Marine, failed to file CBP Forms 7514 in a timely and complete manner, pursuant to 19 C.F.R. § 191.112(c), it must follow the export summary procedures and submit a Chronological Summary of Exports; the name of the vessel on which the articles were or are to be laden; and the master or an authorized representative of the vessel, having knowledge of the facts of exportation, must complete the “Declaration of Master or Other Officer.” See 19 C.F.R. §§ 191.73; 191.112(d)(1); and 191.112(f)(1). In its Chronological Summary of Exports, Kansas Marine included: the date of export, the “unique export identifier”, the exporter, the description and quantity of the merchandise, and the HTS subheading number. The Drawback Office determined that the unique export identifier provided by Kansas Marine was for a purchase order, instead of the export BOL number or the vessel voyage number. Subsequently, Kansas Marine submitted the invoice number, as the unique export identifier, and listed the purchase order in a separate column, yet still failed to include an export BOL number. In an attempt to establish proof of export, Kansas Marine submitted a “Declaration and Affidavit of Exporter” signed by the Vice President of the company and notarized on May 27, 2014. In the affidavit, Kansas Marine explains that when an order is received from a cruise ship, it generates an invoice, identifying the merchandise and the ship on which the goods are to be laden. The order is then filled and the merchandise is removed from Kansas Marine’s warehouse and loaded onto a delivery truck, delivered, then placed onto the vessel by the longshoreman, but no BOL is generated. The only export documents provided by Kansas Marine, are certified copies of export invoices, date stamped by the vessel of laden, listing the goods to be laden on board the vessel. As in H155515, CBP determined that while the invoices demonstrate an intent to unite the merchandise with the goods of a foreign country, by themselves, they did not show date, time, and fact of export. See also, C.S.D. 79-254. For documentation to show date and fact of export, it must demonstrate the goods physically left the United States. See H155515. Evidence that the merchandise left the U.S. could consist of, for example, a bill of lading indicating that the goods are on an outbound vessel or aircraft, or that the goods were entered into a foreign government’s Customs. See HQ 229941 (Oct. 14, 2003); see also H046997 (Nov. 17, 2011) (An invoice, packing list and an express bill of lading provided were found sufficient to show an intent to unite the products with the mass of things belonging to another country, but not date and fact of export). The export invoices, while stamped for receipt, by themselves are not sufficient to demonstrate that the merchandise was physically laden on the vessel. Kansas Marine failed to provide the necessary declaration of the officer of the vessel to confirm lading, as required under 19 C.F.R. § 191.112(f). Kansas Marine’s company export invoices were certified as a true and correct copy of the original by the President of the company, but not by a disinterested third party. Additionally, as held in HQ 229566 and H155515, the declarations made by the Vice President of Kansas Marine, not made at or near the time of transaction, nor kept in the ordinary course of business, are insufficient to demonstrate date and time of export. Similarly, as in C.S.D. 79-254, the affidavit was made by an interested party and is self-serving, and is not sufficient to provide the necessary proof of export, and cannot take the place of the “Declaration of Master or Other Officer” created by a third party representative of the vessel of laden, as required in 19 C.F.R. §§ 191.112(f)(1). Accordingly, these invoices by themselves, may not be used to show date and fact of export under 19 C.F.R. §§ 191.112 and 191.73. As Kansas Marine provided no other actual evidence of exportation, such as those listed in 19 C.F.R. § 191.72, failed to follow the export procedures in 19 C.F.R. § 191.112, and its supporting affidavits and certifications are unreliable, it did not adequately prove exportation for drawback purposes. Accordingly, Kansas Marine failed to provide sufficient reliable evidence of exportation, as outlined in 19 C.F.R. § 191.72, and has failed to fully and accurately establish the date and fact of exportation and the identity of the exporter. HOLDING: Based on the information submitted, we find that the food products laden as vessel supplies on board cruise ships, are ineligible for drawback under 19 U.S.C. § 1309(b). The food products that have been laden as vessel supplies, and exported within three years of the date of protest, April 2, 2015, if accompanied with complete and accurate CBP Forms 2514 are eligible for drawback, if all other necessary requirements have been satisfied under 19 U.S.C. § 1309(b) and Part 191. Accordingly, Protest Number 2809-15-100233 should be DENIED for the reasons set forth in this decision. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision to counsel for the protestant, together with the Customs Form 19, no later than sixty days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Trade will 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 Commercial and Trade Facilitation Division