HQ 228779

August 19, 2002

DRA-202; WAR-2-01; FOR-2-03

CON-9 228779 LLB

U.S. Customs Service

Attn: Kristine Lessard

P.O. Box 448

Ranier, MN 56668-0448

Re: Protest No./Application for Further Review 3604-99-100006; 19 C.F.R.
§§ 141.2, 191.72; evidence of exportation; HQ 228272 (November 8, 1999);
hearsay evidence; Fed. R. Evid. §§ 801(a) & 803(6)

Dear Ms. Lessard:

The above-referenced protest has been forwarded to our office for
further review. We have reviewed the points raised by your office and
the protestant, Riverside Forest Products, Ltd. Our decision follows.

**FACTS**

Riverside Forest Products, Ltd. (Riverside), a Canadian company, alleges
the following facts. On March 15, 1999, Riverside entered a shipment of
softwood lumber. Due to a "railroad error" the same shipment was not
unloaded and was erroneously returned to Canada on April 4, 1999. Once
the error was discovered, the shipment was returned to the United States
on April 16, 1999. At that time Customs required Riverside to file a
second entry on the shipment. In support of its allegations, Riverside
has provided the following documents.

-Unsigned bill of lading dated March 11, 1999. BOL indicates the
consignee as Sherwood Lumber Corp in Newark, New Jersey and that it was
laden on car number CNA554431. Handwritten notations indicate "Car
Astray, originally cleared M3404115, 03-15-99, originally entered
144-\[xxxx\]85, 03-25-99."

-Entry Number 144-xxxxx95-1 which indicates the import date was March
15, 1999 and the entry date was March 25, 1999. The BOL number is
CNRU00002175725. A consignee is not indicated, but New Jersey is listed

-An electronic mail message dated April 19, 1999 to Riverside from Bruce
Craig, Customer Service Representative, Canadian National Railways which
gives a chronology of the shipment

-a computer-generated document titled "Car History" for car ID no. CNA
554431 from March 11, 999 to April 20, 1999. Last history date
indicated---March 27, 1999.

-computer printout titled "Yard System, Car Inquiry". The car number
indicated is CNA554431. The inquirer indicated is B. Craig.

-computer printout titled "Broker Download Report" for bill of lading
number CNRU 000002273299 dated April 16, 1999. Car number indicated CAN
554431. Ultimate Consignee indicated Woodhaven Lumber, Lakewood, New
Jersey.

-computer printout of Canadian National Railways Manifest
No.000002273299 dated April 14, 1999. Notation: "Goods found astray in
Canada all charges thru RR channels error CR Rail---Original Way bill
#717920 M34041 15 Acquital No. 14467862851 Conrail File nb 1559 99 . . .
entered into Canada as empty M34131. Consignee indicated: Woodhaven
Lumber, Lakewood, NJ.

-Entry No. 144-xxxxx70-0 which indicates the import date as April 16,
1999 and the entry date as April 27, 1999. The ultimate consignee is not
indicated; however, the state of New Jersey is listed. BOL indicated
CNRU 000002273299

Riverside argues that although the goods were returned to Canada, such
action should not be considered an exportation, because Riverside had no
intent to join the goods with the commerce of Canada. The port's
position is that the outbound manifest shows that the goods were never
returned to Canada; hence, the second entry represents a different set
of goods. Riverside requests that Customs cancel the second entry.

**Issue**

Whether the two entry summaries in question represent two entries of the
same shipment or two entries of different shipments

**Law and Analysis**

Initially we note that the protestant's September 1, 1999, protest is
timely inasmuch as it was filed within 90 days of the August 20, 1999,
liquidation date, [see]{.underline} 19 U.S.C. § 1514(c)(3)(A), and the
matter is protestable under 19 U.S.C. § 1514(a)(4).[^1]

In general, the proof of exportation requires evidence of an intent for
the merchandise at issue to unite with the mass of things belonging to
that of another country, and evidence that the merchandise left the U.S.
19 C.F.R. § 101.1. The protestant raises that it did not intend to
return the goods to Canada; however, to discuss this issue first would
be fruitless if in fact the goods were not returned to Canada. Hence,
the threshold issue is whether the evidence shows that the merchandise
was returned to Canada from the U.S. 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. HQ 228272 (November 8,
1999).

Since the protestant is asserting that the goods were returned to Canada
by mistake, we would not expect that it would submit a bill of lading;
however, we would expect that the protestant would submit a Canadian
Customs entry. The protestant has not asserted how the merchandise was
brought across the Canadian border without clearing Canadian Customs.
Nevertheless, we will review the documents submitted to us by the
protestant in support of its argument that the goods were returned to
Canada. The first document titled "Car History From Mar 11, 1999 to Apr
20, 1999" indicates that railcar CNA 554431 crossed into the U.S.,
specifically, Ranier, Minnesota, on March 15, 1999, as loaded. The same
document indicates that on March 27, 1999, car 554431 arrived empty into
South Amboy, New Jersey and that on April 3, 1999, it crossed into
Winsymar, Manitoba, Canada empty. We note that that despite the fact the
document title indicates that the car history is from March 11, 1999 to
April 20, 1999, the last entry on this document is April 6, 1999. Based
on the car history report, it appears that the goods were not returned
to Canada.

The second document titled "Yard System, Car Inquiry" indicates car
movements of car CNA 554431 from March 31^st^ through April 17^th^;
however, the year is not indicated. The run date of the inquiry is April
20, 1999. Between the dates of March 31^st^ and April 6^th^, the report
indicates that car was empty. It is not until April 9^th^ that the
report indicates that the car was loaded. However, the protestant argues
that there is a handwritten note under the April 3^rd^ date by the
railroad that indicates "sealed at Winnipeg -- still loaded!" Under
evidentiary rules, hearsay testimony is not admissible. The Federal
Rules of Evidence define hearsay as "a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c).
Under Fed. R. Evid. 801(a), a statement includes a written assertion. An
exception to the hearsay rule is in 803(6) which provides that:

> A memorandum, report, record, or data compilation, in any form, of
> acts, events, conditions, opinions, or diagnoses, made at or near the
> time by, or from information transmitted by, a person with knowledge,
> if kept in the course of a regularly conducted business activity, and
> if it was the regular practice of that business activity to make the
> memorandum, report, record, or data compilation, all as shown by the
> testimony of the custodian or other qualified witness....

According to the protestant, the report was provided by Bruce Craig, a
Customer Service Representative for Canadian National Railways. With
regard to the handwritten notation, the protestant asserts that it was
"added by the railroad." Even if we were to assume Mr. Craig made the
notation, it is questionable whether it was made at or near the time the
goods were alleged to have returned to Canada, because the report was
run on April 20, 1999, and the goods were alleged to have returned to
Canada on April 3, 1999. Any notations made on a report that was run on
April 20, 1999, could have only been made on or after that date.
Further, it is also questionable whether Mr. Craig had personal
knowledge the goods alleged to have entered Canada on April 3, 1999,
were the same goods the protestant imported on March 15, 1999. In an
April 19, 1999, e-mail sent by Mr. Craig to the protestant, Mr. Craig
states:

> CAN 554431 was released from Larkin, BC on March 11, 1998. \[1998 is
> circled and 1999 is written above it\] The load was scaled at Winnipeg
> on March 14 with a net weight of product of 145,440 pounds.
>
> The load showed released empty on the Con Rail on March 24.
>
> The car entered Canada on April 02, 1999 and scaled on April 03 with a
> weight of product of 145,020.
>
> The car was returned to its original destination as a load of Canadian
> Goods Astray and the car scaled again at Winnipeg on April 16 with a
> weight of 144,700.
>
> This is the original load and was delivered to the BRC on April 17 @
> 15:25.

Mr. Craig does not assert how he had personal knowledge of the foregoing
alleged events; however, based on our review of the Car Inquiry and Car
Reports provided by Mr. Craig, it appears that his statements were based
on the information in these reports. Nevertheless, we do not know if Mr.
Craig is the custodian of these reports or if they are kept in the
ordinary course of business. Also, as noted above, these reports were
run on April 20, 1999, and coupled with the fact that Mr. Craig's e-mail
is dated April 19, 1999, shows that his comments were made after the
merchandise allegedly reentered Canada. Therefore, Mr. Craig's foregoing
statements would not fall within the hearsay exception.

The unsigned bill of lading submitted by the protestant, which has the
handwritten notations "Car Astray originally cleared M3404115 03-15-99
originally entered 144xxxx285 03-25-99" would also not fall within the
hearsay exception because the author of the statement and the date the
statement was made is unknown. The protestant has also provided a CNR
rail manifest that indicates similar information as the BOL[^2];
however, it was generated on April 20, 1999, 17 days after the goods
were alleged to have reentered Canada and there is no evidence that
suggests that Mr. Craig had personal knowledge of the information
contained therein.

In conclusion, the documents presented to establish that the merchandise
was returned to Canada are based on hearsay statements and do not fall
within the business records exception because the majority of the
statements do not appear to be based on personal knowledge and were made
weeks after the goods were alleged to have returned to Canada.

**HOLDING**

The evidence is not sufficient to establish that the goods imported
under entry number 144-xxxx295-1 were returned to Canada. Therefore, the
goods imported under entry number 144-xxxx270-0 should not be canceled.
The protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings

will make the decision available to Customs personnel, and to the public
on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

Myles Harmon, Acting Director

Commercial Rulings Division

[^1]: According to the protestant, the port required that the second
    entry be filed on the shipment in question. In its summons and
    report, the port does not affirm or deny that it required the
    protestant to file the second entry. To the extent the merchandise
    would have been excluded had the foregoing requirement not been met,
    this matter is protestable under 19 U.S.C. § 1514(a)(4).

[^2]: We note that the manifest and the BOL indicate that the consignee
    is Woodhaven Lumber and Millw. Inc., Lakewood, New Jersey; however,
    the railway confirmation for the alleged first importation indicates
    that the consignee was Sherwood Lumber Corp., Newark, New Jersey.
    The protestant has not explained why, when the lumber was returned
    the United States, it was returned to a different consignee.