HQ 0223363 - Application for further review of Protest No. 5301-0-000496; trade-off provision 19 CFR 191.27; 19 U.S.C. 1313(k) - United States International Trade Commision Rulings

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HQ 223363

November 14, 1991

DRA-1-CO:R:C:E 223363 CB

CATEGORY: ENTRY DRAWBACK

Regional Director
Commercial Operations
Southwest Region
5850 San Felipe Street
Houston, TX 77057-3012

RE: Application for further review of Protest No. 5301-0-000496; trade-off provision 19 CFR 191.27; 19 U.S.C. 1313(k)

Dear Sir:

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

FACTS:

According to the facts provided in the file, protestant has requested drawback under the provisions of 19 U.S.C. 1313(b) and (k) and Treasury Decision 55027(2) - Substitution and T.D. 83- 59. Protestant has applied for and has been approved to use the Exporter's Summary Procedures as provided for in 19 CFR 191.53. Protestant has claimed drawback based on the exportation of sugar refined by a separate manufacturer. Additionally, protestant has claimed drawback based on the exportation of refined sugar exported by protestant.

Protestant entered into sugar refining agreements with Company A, a manufacturer. The terms of these agreements are set forth in separate contracts, each covering a specific period of time and specified quantities of sugar. Protestant states that each contract provides that it deliver a sufficient amount of raw sugar to the manufacturer to produce a specified tonnage of refined sugar. According to protestant, the parties were able to determine the exact amount of sugar in pounds, months before shipment, by using a formula established by the United States Department of Agriculture which requires 107 pounds of imported raw sugar to equal 100 pounds of refined sugar for export. The raw sugar is delivered to the refinery in Georgia, where it is refined and then delivered pursuant to protestant's instructions. Apparently, the contracts also cover other issues including the time and date of shipment, refined sugar quality, packing instructions, insurance, drawback, etc.

Protestant maintains that it is entitled to drawback based on "tradeoff". According to protestant, the subject sugar was introduced into Company A's bonded warehouses by Company B pursuant to an agreement between protestant and Company B and agreements between protestant and Company A. "The sugar was entered under bond and was not withdrawn until after the sugar delivered pursuant to [protestant's] instructions was refined." The application for further review states that it is Company A's position that under the tradeoff provisions the refiner is permitted to dedicate any sugars in its possession for refining purposes under the tolling agreement between Company A and protestant.

ISSUE:

Whether protestant is entitled to drawback based on the "tradeoff" provision found in 19 U.S.C. 1313(k)?

LAW AND ANALYSIS:

Section 313(k) of the Tariff Act of 1930, as amended (19 U.S.C. 1313(k)), provides:

For purposes of subsections (a) and (b) of this section, the use of any domestic merchandise acquired in exchange for imported merchandise of the same kind and quality shall be treated as the use of such imported merchandise if no certificate of delivery is issued with respect to such imported merchandise.

The Customs Service's administration of the statutory "tradeoff" provision is found in 19 CFR 191.27, which provides in section 191.27(c):

.... For those users manufacturing under substitution drawback, this request [to operate under the tradeoff provision] should be contained in the drawback proposal.

Protestant asserts that the raw sugar in the possession of Company A, the manufacturer, was exchanged or "traded off" for imported sugar. Accordingly, protestant asserts that its claim for drawback on these entries should be allowed.

The scope of review of this protest is on the administrative record, and protestant has not presented any evidence in support of its assertions. To establish drawback eligibility, a claimant must establish with proper evidence the facts of importation, manufacture, exportation and compliance with the applicable -3-
regulations. Ciba Company, Inc. v. United States, 27 Cust. Ct. 144, CD 1359 (1951); Romar Trading Co., Inc. v. United States, 27 Cust. Ct. 34, CD 1344 (1951); and United States v. Lockheed Petroleum Services, Ltd., C.A.F.C. Appeal No. 82-35 (1983). Protestant claims that it has complied with the tradeoff provision but has failed to submit any documentary evidence to support such allegation. The Customs Service has and will continue to fully consider any relevant allegation in a protest supported by competent evidence. However, assertions made by a protestant or its counsel are not a substitute for documentary evidence. Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983). For example, protestant has failed to prove that it complied with the notice requirement set forth in 19 CFR 191.27(b) or (c).

HOLDING:

Inasmuch as protestant's assertions of compliance are unsupported by any evidence, it cannot be said that the claimant has established that it is eligible for drawback on the basis of tradeoff. Therefore, this protest should be denied.

A copy of this decision should be attached to the CF 19, Notice of Action, and sent to protestant to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

John A. Durant, Director

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