Aectra Refining and Marketing Inc. v. United States

Slip Op. 07-189

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Nicholas Tsoucalas, Senior Judge
________________________________________
:
AECTRA REFINING AND MARKETING INC., :
:
Plaintiff, :
:
v. : Court No.: 04-00354
:
UNITED STATES, :
:
Defendant. :
________________________________________:

December 28, 2007

[Held: Plaintiff’s Motion for Summary Judgment is denied.
Defendant’s Motion for Summary Judgment is granted. Judgment
entered for the Defendant.]

Phelan & Mitri (Michael F. Mitri) for Aectra Refining and Marketing
Inc., Plaintiff.

Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E.
Davidson, Director; Todd M. Hughes, Assistant Director; Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Tara K. Hogan); of counsel: Richard McManus, Office of
the Chief Counsel, United States Bureau of Customs and Border
Protection, for United States, Defendant.

OPINION

TSOUCALAS, Senior Judge: This matter is before the court on cross-

motions for summary judgment pursuant to USCIT R. 56. Plaintiff

Aectra Refining and Marketing Inc. (“Aectra”) seeks drawback1 of

1
“Drawback means a refund or remission, in whole or in
part, of a customs duty, fee or internal revenue tax which was
imposed on imported merchandise[.]” 19 C.F.R. § 191.2(i).
Court No. 04-00354 Page 2

Harbor Maintenance Taxes (“HMTs”)2, Merchandise Processing Fees

(“MPFs”)3 and Environmental Taxes (“ETs”)4 it paid on imported

merchandise designated under the drawback entries at bar and seeks

reliquidation of same. Defendant United States Bureau of Customs

and Border Protection (“Customs”) argues that Aectra’s drawback

claim was properly denied and seeks an order dismissing the case.

JURISDICTION

The court has jurisdiction over this matter pursuant to 28

U.S.C. § 1581(a) (2000).

STANDARD OF REVIEW

On a motion for summary judgment, the court must determine

whether there are any genuine issues of fact that are material to

the resolution of the action. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A factual dispute is genuine if it might

2
The HMTs are a tax on port use enacted pursuant to the
Water Resources Development Act of 1986, Pub.L. No. 99-662, Title
XIV § 1402, 100 Stat. 4266 (1986), 26 U.S.C. § 4461.
3
The MPFs are a fee assessed on all imports pursuant to
19 U.S.C. § 58c(a)(9).
4
The ETs are an excise tax imposed on crude oil received
at a United States refinery and on petroleum products entered
into the United States for consumption, use, or warehousing. See
26 U.S.C. § 4611.
Court No. 04-00354 Page 3

affect the outcome of the suit under the governing law. See id.

Accordingly, the court may not decide or try factual issues upon a

motion for summary judgment. See Phone-Mate, Inc. v. United

States, 12 CIT 575, 577, 690 F. Supp. 1048, 1050 (1988). When

genuine issues of material fact are not in dispute, summary

judgment is appropriate if a moving party is entitled to judgment

as a matter of law. See USCIT R. 56; see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

DISCUSSION

I. Background

Plaintiff Aectra imported certain petroleum products into the

United States, then later exported “substitute finished petroleum

derivatives.” See Pl.’s Mot. Summ. J. (“Pl.’s Mot.”) at 1. At

issue are the ten claims for substitution drawback of finished

petroleum derivatives Aectra filed with Customs during the period

August 1997 through June 1998. See Pl.’s Statement Material Facts

(“Aectra’s Facts”) ¶¶ 1, 2. All ten drawback claims sought

drawback of Column I general customs duties only. See Pl.’s Mot.

at 1.

On or about November 28, 2003, Customs liquidated Aectra’s

drawback entries and approved drawback refunds for the full amounts

requested by Aectra. See Aectra’s Facts ¶¶ 3, 4. On or about
Court No. 04-00354 Page 4

February 2, 2004, plaintiff timely filed a protest pursuant to 19

U.S.C. § 1514 contesting and requesting, for the first time,

Customs’ failure to issue drawback of the HMTs and MPFs imposed on

the merchandise at issue. See Appendix Def.’s Resp. Summ. J. at 1.

On or about February 6, 2004, Customs denied plaintiff’s protest.

See Aectra’s Facts ¶ 9. On or about July 23, 2004, plaintiff

commenced the instant action contesting Customs’ denial of its

protest and requesting drawback of HMTs, MPFs and ETs (collectively

“taxes and fee”). See id. ¶ 10; Complaint.

II. Statutory Background

Pursuant to subsection 313(p) of the Tariff Act of 1930, as

amended (“Act”), 19 U.S.C. § 1313(p), importers of certain

petroleum products meeting the statutory requirements are entitled

to receive drawback of the full amount of duties paid, less one

percent, if they export “substitute finished petroleum

derivatives.” See North American Free Trade Agreement

Implementation Act (“NAFTA Act”), Pub.L. No. 103-182, 107 Stat.

2192, 2194-95 (1993). As enacted by the NAFTA Act, “[a] drawback

entry and all documents necessary to complete a drawback claim . .

. shall be filed or applied for, as applicable, within three years

after the date of exportation or destruction of the articles on

which drawback is claimed.” 19 U.S.C. § 1313(r)(1).

In 1999, 19 U.S.C. § 1313(p)(4) was amended so as to provide
Court No. 04-00354 Page 5

that the drawback amount payable for non-manufacturing claims shall

be that attributable to the imported article under 19 U.S.C. §

1313(j) governing unused merchandise drawback. See Miscellaneous

Trade and Technical Corrections Act of 1999 (“1999 Trade Act”),

Pub.L. No. 106-36, § 2420(d), 113 Stat. 127, 178-79 (1999). At

that time, 19 U.S.C. § 1313(j) permitted drawback “[i]f imported

merchandise, on which was paid any duty, tax, or fee imposed under

Federal law because of its importation” was either 1) not used

within the United States or 2) “commercially interchangeable” with

the imported merchandise, before being subsequently exported or

destroyed. See 19 U.S.C. § 1313(j). The 1999 amendment of 19

U.S.C. § 1313(p)(4) suspended the three-year time limitation to

complete drawback claims set forth in 19 U.S.C. § 1313(r)(1) for

drawback claims filed within six months after the date of

enactment, June 25, 1999. See 1999 Trade Act, Pub.L. No. 106-36,

§ 2420(e), 113 Stat. 127, 179 (1999).

In Texport Oil Co. v. United States (“Texport CAFC”), the

United States Court of Appeals for the Federal Circuit (“CAFC”)

held that the “because of its importation” language of 19 U.S.C. §

1313(j) excluded from drawback taxes and fees that do not

discriminate against imports. See 185 F.3d 1291 (Fed. Cir. 1999).

Thus, the CAFC found that HMTs are applied indiscriminately and are

ineligible for drawback, but found that MPFs, which discriminate

against imports, are eligible for drawback. See id. Subsequent to
Court No. 04-00354 Page 6

the 1999 amendment of 19 U.S.C. § 1313(p)(4), this court held in

George E. Warren Corp. v. United States (“Warren CIT”), 26 CIT 486,

201 F. Supp. 2d 1366 (2002), that Texport CAFC was controlling in

finding that HMTs and ETs were not eligible for drawback. The CAFC

affirmed Warren CIT finding that a reversal of Texport CAFC was not

warranted. See Warren v. United States (“Warren CAFC”), 341 F.3d

1348 (Fed. Cir. 2003).

In December 2004, 19 U.S.C. § 1313(j) was further amended to

make eligible for drawback of “duty, tax, or fee” imposed under

Federal law “upon entry or importation” to be applicable to any

“drawback claim filed on or after [the date of the Act’s enactment]

and to any drawback entry filed before that date if the liquidation

of the entry is not final on that date.” See Miscellaneous Trade

and Technical Corrections Act of 2004 (“2004 Trade Act”), Pub.L.

108-429, Title I, § 1557 (a), (b), 118 Stat. 2579 (2004). The

legislative history of the 2004 Trade Act reflects Congress’

unequivocal intent to overturn Texport CAFC by the amendment. See

S. Report 108-28, at 173 (noting that “allowing for drawback of the

[HMTs] is consistent with original Congressional intent”).

III. Contentions of the Parties

A. Aectra’s Contentions

Aectra argues that it is entitled to drawback refund of HMTs,

MPFs and ETs for the drawback entries at issue because it met the
Court No. 04-00354 Page 7

statutory requirements for a 1313(p) drawback of substitute

finished petroleum derivatives. See Pl.’s Mot. at 7. According to

Aectra, it followed the applicable administrative procedures for

the recovery of the taxes and fee at issue, and timely filed the

relevant drawback claims less than three years after the date of

export or re-filed during the six-month suspension period provided

for in the 1999 Trade Act. See id. at 8-9.

To support its claim, Aectra points to the language of the

2004 amendment authorizing 1313(j) drawback refund of taxes and fee

imposed upon importation rather than because of importation applies

to any drawback entry “filed before the date of the enactment if

the liquidation of the entry is not final on that date.” See id.

at 10. Pursuant to this provision, Aectra contends that the

amended 1313(j) is expressly applicable to the drawback entries at

issue because their liquidation was not final on the date of the

enactment based on timely protest. See id. at 10-11.

Aectra concedes that it did not explicitly request the refund

of the taxes and fee until the administrative protest filed in

February 2004, but nevertheless takes the position that its claims

were timely completed within the three-year period. See id. at 11-

12. Relying on the Court of International Trade’s opinion in

Texport Oil Co. v. United States (“Texport CIT”), 22 CIT 118, 1 F.

Supp. 2d 1393 (1998), Aectra contends that its initial drawback

claims incorporated drawback of taxes and fee. See id. at 14.
Court No. 04-00354 Page 8

Aectra then cites to Warren CIT for the proposition that a drawback

claimant that did not initially request a drawback refund of HMTs

and ETs need not file a second drawback claim during the six-month

“sunset” or “suspension” period provided for in the 1999 amendment.

See id. 14-16.

Responding to Customs’ position that Aectra’s failure to

include taxes and fee in its calculation of the amount of drawback

due demonstrates that its claims cannot implicitly include drawback

of taxes and fee, discussed infra, Aectra contends that there is no

statutory requirement that a drawback claimant calculate the amount

of drawback due within the three-year period. See Pl.’s Resp.

Opp’n Def.’s Cross-Mot. Summ. J. (“Pl.’s Resp.”) at 9. Aectra

notes that the requirement for a claimant to submit a calculation

of the amount of drawback due is not set out in 19 C.F.R. §

191.51(a)(1), the subsection defining a “complete claim,” but in 19

C.F.R. § 191.51(b). Id. at 9-10. Aectra thus argues that the

three-year time limit applies to (a)(1)’s completion requirement

but not to (b)(1)’s calculation requirement. See id. at 10.

Moreover, Aectra’s reading of 19 C.F.R. 191.51(b) (1998)

requires a drawback claimant to calculate the amount of import

duties due, not the amounts of taxes and fee. See id. at 11-13.

Indeed, noting that 19 C.F.R. § 191.51(b) requires a drawback

claimant to correctly calculate the amount of drawback due, Aectra

contends that if it had included the amounts for taxes and fee in
Court No. 04-00354 Page 9

its claims, the amounts would have exceeded 99% of duty paid, which

Customs would have deemed incorrect. See id. at 13.

Aectra further contends that Customs misinterprets the

effective date provision of the 2004 amendment. See id. at 17-23.

The effective date provision, according to Aectra, specifically

provides that the amendment apply “prospectively to filings of

future drawback claims and retroactively to previously filed

drawback entries where the liquidation of such entries were not

final on the date of enactment.” Id. at 19. In making that

distinction between drawback claims and drawback entries, Aectra

states that “Congress intentionally recognized a class of

retroactive tax and fee refund requests that were not subject to

the three-year rule, namely, those covered under previously filed

drawback entries not subject to final liquidation.” Id. at 22.

Aectra explains that “it must be assumed that the 2004 Congress

never intended the 3-year rule of 1313(r)(1) would operate as a

time bar for the recovery of [taxes and fee] in a drawback claim

filed prior to enactment, so long as the liquidation of the

drawback entry underlying the claim was not final.” Id. at 23.

In Aectra’s view, while the effective date provision of the 1999

amendment permitted claimants to file new 1313 (p) claims for the

first time outside the three-year period, the retroactivity of the

2004 amendment is limited to previously filed drawback entries.

See id.
Court No. 04-00354 Page 10

In any event, Aectra argues that neither 19 U.S.C. §

1313(r)(1) nor the regulation which preceded it, 19 C.F.R. §

191.61, requires that a claimant calculate the amount of drawback

due in order to complete a drawback claim. See id. at 24-28. As

such, Aectra contends that, to the extent the regulation would

impose a condition unwarranted by the statute, 1313(r)(1) “‘cannot

defeat a right which the act of Congress gives.’” Id. at 27. In

addition, by requiring that claimants calculate the amount of

drawback due, Aectra contends that Customs improperly attempted to

delegate a ministerial function. See id.

Finally, Aectra contends that Customs’ Headquarter Rulings do

not support its contention that a change in the amount claimed

changes the scope of a drawback claim so as to constitute an

amendment subject to the three-year time limitation of 1313(r)(1),

and that those Headquarter Rulings are not entitled to Skidmore

deference on the basis that they are not consistent, thorough or

well-reasoned pronouncements of the law and regulations. See id.

at 29-31.

B. Customs’ Contentions

Customs contends that it properly denied Aectra’s protest

seeking drawback of taxes and fee because Aectra did not request

them until more than three years had passed since export. See

Def.’s Resp. Pl.’s Mot. Summ. J. (“Def.’s Resp.”) at 8.
Court No. 04-00354 Page 11

Accordingly, Customs contends that Aectra’s drawback claims are

untimely pursuant to 19 U.S.C. § 1313(r)(1). See id. at 9-11.

Customs disputes Aectra’s assertion that its initial drawback

claims incorporated requests for taxes and fee. See id. at 11.

According to Customs, Aectra’s position is undercut by the

requirement set forth in 19 C.F.R. § 191.51(b)(1) requiring

drawback claimants to correctly calculate the amount of drawback

due. See id. at 12. Customs states that Aectra did not include

the amounts of HMTs and MPFs due in its calculations, and thus

argues that Aectra’s claims could not implicitly include drawback

of those amounts.5 See id.

Customs also disputes that Texport CIT and Warren CIT support

Aectra’s position that its drawback requests implicitly included

request for drawback of HMTs and MPFs. See id. at 13. Instead,

Customs contends that Texport CIT is limited to “situations in

which the underlying duty drawback claim is denied on other

substantive grounds.” Id. at 14. Warren CIT is also inapplicable,

according to Customs, because it addressed “whether the drawback

claimant’s failure to claim explicit amounts of HMT and ET for

drawback was a jurisdictional bar to bringing suit in this Court.”

5
Customs notes that Aectra’s protest only sought
drawback of HMTs and MPFs. Aectra did, however, seek drawback of
ETs in its Complaint. Since both the protest and the Complaint
were filed beyond the three-year period, the court finds the
distinction immaterial to this case.
Court No. 04-00354 Page 12

Id. at 15. According to Customs, Warren CIT “did not analyze or

decide the issue here: whether a drawback claim of HMT and MPF is

untimely when it is not filed within three years of export.” Id.

Customs next argues that Aectra did not and could not

“perfect” or “amend” its claim by filing a protest. See id. at 16.

According to Customs, even if Aectra could, it did not submit with

its protest an amended claim or calculation of HMTs and MPFs

amounts, and therefore failed to perfect its claim. Id. Customs

however contends that Aectra could not have perfected or amended

its drawback claims by changing the scope of its original claim

pursuant to 19 C.F.R. § 191.52(b). See id. at 16-17. First,

Customs claims that only Customs can initiate the perfection

process. See id. at 17. Second, Customs contends that addition of

more fees and duties to be included in the drawback claim is a

substantive change and that “Customs has consistently interpreted

these regulations to preclude making substantive changes to the

drawback claim.” Id. In support, Customs relies on Headquarter

Rulings, which it argues are consistent with the regulations and

therefore are owed deference. See id. at 17-18.

Customs points to 19 C.F.R. § 191.52(c), which permits a

drawback claimant to amend its claim prior to liquidation provided

that the amendment is made within three years of the date of

exportation or destruction of the articles which are the subject of

the original drawback claim. See id. at 18. Customs argues that
Court No. 04-00354 Page 13

in enacting 19 C.F.R. § 191.52(c) it intended to preclude

amendments to drawback claims made outside the three-year period.

See id. at 19. According to Customs, drawback claims may not be

amended once entries have been liquidated, but liquidated claims

may be perfected in a protest if made within the three-year period.

Id. Customs believes this regulation is consistent with the

statutory requirement that a complete claim be filed within three

years of export. Id.

Moreover, according to Customs, the fact that Congress

specifically provided for a six-month suspension of the three-year

period in enacting the 1999 amendment, but chose not do so in

enacting the 2004 amendment evidences Congress’ intent not to

suspend the three-year time limitation. See id. at 21. Customs

thus argues that the 2004 amendment permits “drawback claims which

had timely included HMT and MPF whose liquidation was not final on

[the date of enactment].” Id.

IV. Analysis

A. The 2004 Trade Act Did Not Suspend The Time Limit Of 19
U.S.C. § 1313 (r)(1)

The parties apparently do not dispute that § 1557(a) of the

2004 Trade Act amending 19 U.S.C. § 1313(j) made HMTs, MPFs and ETs

eligible for drawback. The parties, however, disagree as to

whether § 1557(b) of the 2004 Trade Act, the effective date
Court No. 04-00354 Page 14

provision, is subject to the three-year time limitation to complete

drawback claims as set out in 19 U.S.C. § 1313(r)(1).

The effective date provision, § 1557(b) of the 2004 Trade Act,

provides that:

the amendments made by this section shall take effect on
the date of the enactment of this Act, and shall apply to
any drawback claim filed on or after that date and to any
drawback entry filed before that date if the liquidation
of the entry is not final on that date. (emphasis added).

Section 1313(r)(1) of Title 19 of the United States Code

provides that:

A drawback entry and all documents necessary to complete
a drawback claim, including those issued by the Customs
Service, shall be filed or applied for, as applicable,
within 3 years after the date of exportation or
destruction of the articles on which drawback is claimed,
except that any landing certificate required by
regulation shall be filed within the time limit
prescribed in such regulation. Claims not completed
within the 3-year period shall be considered abandoned.
No extension will be granted unless it is established
that the Customs Service was responsible for the untimely
filing.

Plaintiff Aectra argues that the plain language of the

effective date provision makes the 2004 amendment applicable to the

drawback claims at issue because liquidation of those entries were

not final as of the date of the enactment. In addition, Aectra

argues that the effective date provision is not subject to the

three-year time limitation set forth in 19 U.S.C. § 1313(r)(1).

Customs contends that the effective date provision must be read in

conjunction with 19 U.S.C. § 1313(r)(1).
Court No. 04-00354 Page 15

In construing an act of Congress, it is “fundamental that a

section of a statute should not be read in isolation from the

context of the whole Act.” NTN Bearing Corp. of Am. v. United

States, 26 CIT 53, 102-03, 186 F. Supp. 2d 1257, 1303 (2002)

(citations omitted). Rather, “each part or section of a statute

should be construed in connection with every other part or section

so as to produce a harmonious whole.” NTN Bearing, 26 CIT at 102-

03, 186 F. Supp. 2d at 1303 (citing In re Nantucket, Inc., 677 F.2d

95, 98 (C.C.P.A. 1982)). Employing this principle, the court finds

that, the drawback statute, read as a whole, supports finding that

§ 1557(b) of the 2004 Trade Act is subject to the three-year time

limitation of 19 U.S.C. § 1313(r)(1). The fact that Congress knew

how to suspend the time limitation because it did so in enacting

the 1999 Trade Act, but chose not to provide for a suspension of

the three-year time limitation in enacting the 2004 Trade Act

further supports this reading.

Aectra’s reliance on Texport CIT, 22 CIT 118, 1 F. Supp. 2d

1393, and Texport CAFC, 185 F.3d 1291, is misguided. In Texport

CIT, Customs had denied the importer’s drawback claims for import

duties. 22 CIT at 126-27, 1 F. Supp. 2d at 1401. “Texport was

therefore unable to protest the MPF and HMT fee drawback before

Customs as a result of the duty drawback denial.” Id. Under those

particular circumstances, the court found that Texport’s claim for

HMTs and MPFs were implicit in the original claim. See id. In the
Court No. 04-00354 Page 16

instant matter, Aectra had only sought drawback of import duties,

and Customs had fully liquidated and refunded the full amount of

drawback refund sought by Aectra. Nothing prevented Aectra from

making a timely request for drawback of taxes and fee. Indeed,

Customs liquidated Aectra’s drawback entries for the exact amounts

Aectra claimed. Aectra then filed a protest seeking drawback

refund of HMTs and MPFs, but failed to do so within the three-year

period as provided in 19 U.S.C. § 1313(r)(1). Texport CIT and

Texport CAFC are thus inapplicable to the facts of this case, and

Aectra’s original drawback claims cannot be read to implicitly

include drawback of taxes and fee.

Neither are Warren CIT, 26 CIT 486, 201 F. Supp. 2d 1366, and

Warren CAFC, 341 F.3d 1348, dispositive of the issue. In Warren

CIT, the court held that it had jurisdiction over an action

contesting the denial of a protest even if the drawback claimant

had never claimed explicit amounts of HMTs and ETs in its original

drawback request. See Warren CIT, 26 CIT at 487-89, 201 F. Supp.

2d at 1369-70. Central to the holding of Warren CIT was the fact

that Congress had enacted the 1999 Trade Act amending 19 U.S.C. §

1313(p) and specifically provided for a six-month suspension of the

three-year time limitation to complete drawback claims. See id. at

1370. By then “Customs had already ruled on the merits of

[Warren’s drawback for HMTs and ETs] in denying Warren’s protest”

and the court determined that “filing a second drawback claim would
Court No. 04-00354 Page 17

have been futile.” Id. Based on the unique circumstances of

Warren CIT, the court found that the importer had exhausted

administrative remedies and that there was an actual controversy

fit for judicial review. See id. The facts of this case do not

warrant such finding.

More importantly, it was unnecessary for the court in Warren

CIT to consider whether Warren had complied with 19 U.S.C. §

1313(r)(1) since Warren filed its protest requesting drawback of

HMTs and ETs well within the three-year time period to complete

drawback claims.6 Accordingly, this court agrees with Customs and

finds that Warren CIT and Warren CAFC are inapplicable to this

case. The court therefore holds that § 1557(b) of the 2004 Trade

Act is subject to the three-year time limitation of 19 U.S.C. §

1313(r)(1) and finds that cases relied upon by Aectra do not

require this court to hold otherwise.

B. The Drawback Regulations At Issue Are Valid

The court next addresses Aectra’s claim that it did indeed

complete its drawback claims within the three-year period. Noting

that the drawback statute does not define what constitutes a

completed drawback claim, Aectra cites to 19 C.F.R. § 191.51(a)(1),

6
Warren imported petroleum products on three different
occasions during the period December 1995 to January 1996, and
the protest seeking drawback of taxes and fee was filed on
January 3, 1997. See Warren CAFC, 341 F.3d at 1349.
Court No. 04-00354 Page 18

which provides:

Complete claim. Unless otherwise specified, a complete
drawback claim under this part shall consist of the
drawback entry on Customs Form 7551, applicable
certificate(s) of manufacture and delivery, applicable
Notice of Intent to Export, Destroy, or Return
Merchandise for Purposes of Drawback, applicable import
entry number(s), coding sheet, unless the data is filed
electronically, and evidence of exportation or
destruction under subpart G of this part.

Aectra contends that it completed its drawback claims because it

fulfilled the requirements of 19 C.F.R. § 191.51(a)(1) within the

three-year period.

Customs does not dispute that Aectra timely filed the

documents delineated in 19 C.F.R. § 191.51(a)(1). However, it

contends that Aectra’s drawback claims for taxes and fee were

incomplete because Aectra failed to comply with 19 C.F.R. §

191.51(b), which provides, inter alia, that “[d]rawback claimants

are required to correctly calculate the amount of drawback due.”

Aectra, in turn, responds that the three-year time limitation does

not apply to the requirement 19 C.F.R. § 191.51(b) to calculate the

amount of drawback due and that, in any event, the regulation

improperly imposes an obligation not required by the drawback

statute.

In addition, Customs argues that pursuant to 19 C.F.R. §

191.52(c), Aectra cannot amend its drawback claims for taxes and

fee beyond the three-year period. Customs states that “[a]s part
Court No. 04-00354 Page 19

of protest procedures, a claim may be perfected, but it may not be

amended (insofar as amendment would result in a complete claim not

being filed within the 3-year time limit).” 63 Fed. Reg. 10970,

10989 (March 5, 1998). Citing HQ 227627 (July 20, 1999), Customs

contends that “changing the basis on which drawback is claimed and

the amount claimed, is a change in the scope of the claim, is not

simply the submission of supporting evidence, and therefore is an

untimely amendment of the claim, if done more than three years

after the date of exportation or destruction.” Thus, Customs

argues that Aectra impermissibly attempts to amend its drawback

claim beyond the three-year period by way of a protest contrary to

19 C.F.R. § 191.52(c).

First, the court agrees with Customs that the three-year time

limitation applies to the requirement of 19 C.F.R. § 191.51(b) to

calculate the correct amount of drawback due. Indeed, a reasonable

reading of 19 C.F.R. § 191.51 requires that each subsection sets

forth a component of a completed claim. Furthermore, 19 C.F.R. §

191.51(e)(1) provides that “[a] completed drawback claim, with all

required documents, shall be filed within 3 years after the date of

exportation or destruction of the merchandise or articles which are

the subject of the claim.” (Emphasis added). A calculation of the

amount of drawback due is certainly one of the documents required

to be filed within the three-year period. Because Aectra failed to

provide Customs with calculations of the amounts of taxes and fee
Court No. 04-00354 Page 20

due in any shape or form within the three-year period, the court

finds that it did not timely complete its taxes and fee drawback

claims.

Second, the court finds that 19 C.F.R. § 191.51 setting forth

the requirements of a complete drawback claim and 19 C.F.R. §

191.52 governing amendment of a drawback claim are valid and are

within Customs’ statutory powers to promulgate and enforce the

drawback statute. Customs is authorized to enact regulations

implementing the statute pursuant to 19 U.S.C. § 1624, which

provides that

“[i]n addition to the specific powers conferred by this
chapter the Secretary of the Treasury is authorized to
make such rules and regulations as may be necessary to
carry out the provision of this chapter.”

In addition, 19 U.S.C. § 1313(l) provides that:

“[a]llowance of the privileges provided for in this
section shall be subject to compliance with such rules
and regulations as the Secretary of the Treasury shall
prescribe, which may include, but need not be limited to,
the authority for the electronic submission of drawback
entries and the designation of the person to whom any
refund or payment of drawback shall be made.”

“Where the empowering provision of a statute states simply

that the agency may ‘make . . . such rules and regulations as may

be necessary to carry out the provisions of this Act,’ . . . the

validity of a regulation promulgated thereunder will be sustained

so long as it is ‘reasonably related to the purposes of the
Court No. 04-00354 Page 21

enabling legislation.’” Mourning v. Family Publ’g Serv., 411 U.S.

356, 369 (1973) (quoting Thorpe v. Housing Auth. of City of Durham,

393 U.S. 268, 280-281 (1969)). “[A] regulation is reasonably

related to the purposes of the legislation to which it relates if

the regulation serves to prevent circumvention of the statute and

is not inconsistent with the statutory provisions.” Carpenter,

Chartered v. Sec'y of Veterans Affairs, 343 F.3d 1347, 1351-52

(Fed. Cir. 2003) (citing Thomas Int'l, Ltd. v. United States, 773

F.2d 300, 304-05 (Fed. Cir. 1985).

The regulations at issue are reasonably related to the purpose

of the completion requirement of 19 U.S.C. § 1313(r)(1). The

regulations serve to prevent circumvention of the drawback

statute’s three-year period to complete drawback claims. If

drawback claimants were not required to provide all information

necessary for Customs to process and liquidate drawback entries,

such as the amount of drawback due and any necessary amendments to

drawback claims, within the statutory three-year period, then

Customs could not effectively carry out its duties. Moreover, the

strict time limitation set out in 19 U.S.C. § 1313(r)(1) would be

circumvented. In addition, the court finds nothing in the

regulations that is inconsistent or contrary to the drawback

statute.
Court No. 04-00354 Page 22

CONCLUSION

Based on the foregoing, the court holds that § 1557(b) of the

2004 Trade Act is subject to the three-year time limitation of 19

U.S.C. § 1313(r)(1). Accordingly, Customs properly denied Aectra’s

protest seeking, for the first time, drawback of taxes and fee more

than three years from the date of export or destruction. The court

finds no merit to other arguments posed by Aectra. Aectra’s motion

for summary judgment is denied, and Customs’ motion for summary

judgment is granted. This case is dismissed. Judgment will be

entered accordingly.

Dated: December 28, 2007
New York, New York

/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
 UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Nicholas Tsoucalas, Senior Judge
________________________________________
:
AECTRA REFINING AND MARKETING INC., :
:
Plaintiff, :
:
v. : Court No.: 04-00354
:
UNITED STATES, :
:
Defendant. :
________________________________________:

JUDGMENT

This case having been duly submitted for decision and the
court, after due deliberation, having rendered a decision herein;
now, in accordance with said decision, it is hereby

ORDERED, ADJUDGED and DECREED that the United States Bureau of
Customs and Border Protection properly denied the protest filed by
plaintiff Aectra Refining and Marketing Inc. (“Aectra”) requesting
drawback of taxes and fee for the first instance more than three
years after the date of exportation or destruction of the articles
on which drawback is claimed; and it is further

ORDERED that the defendant United States’ cross-motion for
summary judgment pursuant to USCIT R. 56 is granted; and it is
further

ORDERED that plaintiff motion for summary judgment pursuant to
USCIT R. 56 is denied; and it is further

ORDERED that this case is dismissed.

Dated: December 28, 2007
New York, New York

/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE