HQ 230725 - Protest number 5301-03-100716; ATOFina Petrochemicals, Inc.; Denial of drawback claim; 19 U.S.C. § 1514(c)(2)(D); 19 U.S.C. § 1313(p); 19 U.S.C. § 1514; Miscellaneous Trade and Technical Corrections Act of 1999; P.L. 106-36; 19 U.S.C. § 1313(r); North American Free Trade Agreement Implementation Act; “sunset’ provision;” retroactive effect; Fed. R. Civ. Proc. R. 6(a); C.S.D. 82-37, Cust. Serv. (1982); Administrative Procedure Act; 5 U.S.C. § 553; notice and comment. - United States International Trade Commision Rulings

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HQ 230725

December 13, 2004

DRA-4 RR:CR:DR 230725RDC

CATEGORY: PROTEST

Port Director, Customs and Border Protection Houston Service Port
2350 N Sam Houston Parkway East, Suite 1000 Houston, Texas 77032-3126
Att: Christina D. Brooks

RE: Protest number 5301-03-100716; ATOFina Petrochemicals, Inc.; Denial of drawback claim; 19 U.S.C. § 1514(c)(2)(D); 19 U.S.C. § 1313(p); 19 U.S.C. § 1514; Miscellaneous Trade and Technical Corrections Act of 1999; P.L. 106-36; 19 U.S.C. § 1313(r); North American Free Trade Agreement Implementation Act; “sunset’ provision;” retroactive effect; Fed. R. Civ. Proc. R. 6(a); C.S.D. 82-37, Cust. Serv. (1982); Administrative Procedure Act; 5 U.S.C. § 553; notice and comment.

Dear Sir or Madam:

Protest number 5301-03-100716 was forwarded to this office for further review on 9/28/2004. We have considered the evidence provided and the points raised by your office and the Protestant. Our decision follows.

FACTS:

The Protestant, ATOFina Petrochemicals, Inc., (ATOFina), protests the denial of three drawback claims: AA6-xxxx180-5; AA6-xxxx181-3; and AA6-xxxx182-1. The claims are filed by Fina Oil & Chemical Company on CF 331s, Manufacturing Drawback Entry and/or Certificate(s),” and designated entry type code “44.” The CF 331s and their accompanying documentation were provided for 182-1 and 181-3. The documents associated with claim 180-5 were unavailable for copying and forwarding with this Protest, therefore we have no information on this claim other than what is available in CBP’s Automated Commercial System (ACS). According to ACS, entry 180-5 was filed on 8/18/1997 and entries 181-3 and 182-1 were filed on 8/19/1997. All were filed at the Houston Drawback Center (Houston).

Drawback is claimed per 19 U.S.C. § 1313(p). Documents prepared by the claimant specify the particulars of the claims. Apparently, Fina used imported styrene to make polystyrene, which it then exported. Drawback is claimed on the exported polystyrene. For claim 182-1 the polystyrene was exported during the “Period From 1/1/94-8/19/94” and claim 181-3 identifies the polystyrene as exported “January 1, 1993 through December 31, 1993.” According to ACS the protested drawback entries were liquidated on 6/27/2003, with zero drawback allowed. These claims were denied by Houston because the drawback was claimed on polystyrene that was exported more than 3 years prior to the date that the drawback entries were filed. Therefore, Houston determined that they did not satisfy the “within 3-year” requirement of 19 U.S.C. § 1313(r). The instant Protest was received in Houston on 9/19/2003, and forwarded for further review on 9/28/2004.

ISSUES:

1. Was the Protest filed by the drawback claimant as required by 19 U.S.C. § 1514(c)(2)(D)?

2. Does the 3-year requirement in 19 U.S.C. § 1313(r)(1) apply to the instant protested drawback entries filed on 8/18/1997 and 8/19/1997?

LAW AND ANALYSIS:

We note initially that the instant Protest was timely filed, i.e., within 90 days of the refusal to pay the drawback claim (19 U.S.C. § 1514(c)(3)(B)). Under 19 U.S.C. § 1514 CBP decisions including the denial of a drawback claim (§ 1514(a)(6)) are final unless a protest of that decision is filed within 90 days of the decision (§ 1514(c)(3)(B)). The drawback claims were liquidated on 6/27/2003 and this Protest was filed on 9/19/2003.

The drawback claims reflect “Fina Oil & Chemical Co.” as the claimant but “ATOFina Petrochemicals, Inc” filed the Protest. No explanation of the relationship between “ATOFina Petrochemicals” and “Fina Oil & Chemical Co.” is provided. Both entities supply the identical importer number: 75-XXXX403-00. However, according to ACS, that importer number belongs to “Total Petrochemicals USA, Inc.” which name appears nowhere in the documents. “ATOFina Petrochemicals, Inc.” is assigned importer number 03-xxx-10541. No records exist in ACS for “Fina Oil & Chemical Company.”

Section § 1514 of 19 U.S.C. (2004) provides that CBP decisions with respect to the denial of a drawback claims (among others) are final and binding “unless a protest is filed in accordance with” that section (or unless an action is filed in the United States Court of International Trade,(CIT)) (19 U.S.C. § 1514(a)). Section 1514 further requires that protests of CBP decisions be “filed in writing” and follow the CBP regulations (19 U.S.C. § 1514(c)(1)). “any person filing a claim for drawback” or the drawback claimant’s authorized agent may file a protest against the denial of drawback (19 U.S.C. § 1514(c)(2)). The entity authorized by § 1514 to file a protest against the denial of drawback (or its surety) is also entitled per 28 U.S.C. § 2631 (2004) to invoke the jurisdiction of the CIT if that protest is denied by CBP. It is therefore axiomatic that if an entity is not authorized by § 1514 to file a protest against the denial of drawback, that entity is also without standing to commence an action in the CIT against the denial of the protest.

In A. Escudero v. United States, (28 Cust. Ct. 497 (Cust. Ct.1952)) the importer of record on an entry was “William J. Oberle, Inc.” and the owner of these goods was stated as “Independent Cordage Co.” At that time, § 1514 provided that protest against the liquidation of an entry could be filed “by the importer, consignee, or agent of the person paying the charge or exaction to which objection is made.” A. Escudero who purchased the goods from Independent Cordage Co in that case filed the protest at issue against the liquidation of the entry. The Customs Court held that even though Escudero stated that he paid the duties on the entered goods he had no right to protest the liquidation because he was “neither the importer, consignee, nor agent of the person paying the charge . . . .” (Id. at 498.) The court dismissed the protest and the Customs Court action.

In Shigoto International Corp v. United States, (66 Cust. Ct. 252 (Cust. Ct. 1971) the court held that it had no jurisdiction over a protest against the classification of goods filed by "Shigoto International Corp." because this company was not the importer, nor consignee, nor or agent of the person paying the duties as required by § 1514. In that case, “Shigoto Industries, Ltd” entered the goods. “Shigoto Industries, Ltd.” was a different and separate entity from "Shigoto International Corp." "Shigoto International Corp." also was not acting as the agent for the importer. Since the protest was filed by other than the statutorily authorized entity, the protest was dismissed.

In United States v. F. L. Kraemer & Co., (17 C.C.P.A. 448 (Ct. Cust. Pat. App.1930); Treas. Dec. Int. Rev. 43879) the Court of Customs and Patent Appeals (CCPA), reversed a Customs Court decision which addressed the issue of who may file a protest against the denial of drawback. In that case, drawback was denied because the claim was filed untimely, as in this situation. A protest against this denial was filed. The protest was denied as untimely and for failure to file a valid protest by the drawback claimant. The relevant text in the applicable statute in that case provided:
all decisions of the collector . . . as to the . . . refusal to pay any claim for drawback . . . shall be final and conclusive upon all persons unless the importer, consignee, or agent of the person filing such claim for drawback file a protest in writing with the collector . . . .

19 U.S.C. § 1514 (1922). The CCPA described the drawback as being claimed by

Sidney Blumenthal & Co. (Inc.), by Charles P. Kraemer in some instances, and by Sidney Blumenthal & Co. (Inc.), by another in other instances . . . ..

(Id. at 449.) The protest was filed by “Siegel & Mandell” as counsel for “F. L. Kraemer & Co.,” a partnership where the two partners were F. L. Kraemer and Charles P. Kraemer. According to the court, F. L. Kraemer was an agent responsible for filing protests on behalf of Sidney Blumenthal & Co. (Inc.). The protest that was filed to contest the denial of drawback was signed by attorneys Siegel & Mandell. The court held that an appointment of a partner as an agent is not the appointment of the partnership. Thus, because the attorneys Siegel & Mandell signed for “F. L. Kraemer & Co.,” but “F. L. Kraemer & Co.,” was not authorized to file protests on behalf of Sidney Blumenthal & Co. the protest had been signed by one without statutory authority to file the protest. Consequently, “F. L. Kraemer & Co.” was also without standing to bring the action and the protest and case was dismissed.

In the instant Protest, according to the CF 331s, “Fina Oil & Chemical Co.” was the drawback claimant but the Protestant is “ATOFina Petrochemicals, Inc.” Moreover, both these companies are declaring an importer number assigned to a third entity without explanation of the relationship to it. However, only “any person filing a claim for drawback” may file a protest against the denial of drawback or the drawback claimant’s authorized agent (19 U.S.C. § 1514(c)(2)) (see also 19 C.F.R. § 174.12(a)(4)). Accordingly, absent a showing that the instant Protest was filed by the drawback claimant, i.e., Fina Oil & Chemical Co. or that the Protestant, “ATOFina Petrochemicals, Inc.” is an agent for Fina Oil & Chemical Co., the Protest filed by ATOFina Petrochemicals, Inc. is invalid because it was not filed by a statutorily authorized entity. Accordingly, the decision to deny drawback became final and binding (per 19 U.S.C. § 1514) 90 days after 6/27/2003.

With regard to the Protestant’s position that the 3-year requirement in 19 U.S.C. § 1313(r)(1) does not apply to the protested drawback entries, please see the analysis set forth in HRL 230409, 10/26/2004, (attached) which is incorporated herein by reference. In that ruling we concluded that the 3-year rule which requires a complete drawback entry to be filed within 3 years after export of the articles on which drawback is claimed, applied to drawback claims except for those claims filed between 6/25/1999 and 12/27/1999. Since the protested drawback entries were filed 8/18/1997 and 8/19/1997, the 3-year time limit in § 1313(r) applied to these claims.

In calculating the three year period the “day of the act,” i.e., the exportation of the merchandise on which the drawback was claimed, is not included and the last day of the period is included unless it falls on a Saturday, Sunday or legal holiday (Fed. R. Civ. Proc. R. 6(a)). Since 8/18/1997 and 8/19/1997 were a Monday and a Tuesday, respectively, these days are included. Regarding entries 181-3 and 182-1, filed on 8/19/1997, these entries would have been filed timely with respect to merchandise exported on or after 8/18/1994. According to the attachments to 181-3, the polystyrene upon which drawback was claimed was exported during the period from 1/4/1993 to 12/30/1993. Thus, because entry 181-3 claimed drawback on merchandise exported prior to 8/18/1994 such merchandise was exported more than three years prior to the filing of the drawback claim. As such, drawback entry 181-3 does not meet the requirement in § 1313(r) and the drawback claim was properly denied as untimely.

The attachments to 182-1 reflect that drawback was claimed on polystyrene exported from 1/5/1994 through 8/19/1994. These exportations include two exports to Mexico on 8/18/1994 and one export to Mexico on 8/19/1994. (We note that the NAFTA limitation on drawback in 19 U.S.C. § 1313(n), as implemented by 19 C.F.R. § 181.41, applies to claims under 19 U.S.C. § 1313(b) exported to Mexico after to January 1, 2001.) Therefore, entry 182-1 was filed timely with respect to only these three exportations. The remaining exportations occurred prior to 8/18/1994. Thus, that merchandise was exported more than three years prior to the filing of the drawback claim and drawback on those exportations was properly denied.

HOLDING:

1. The Protest was not shown to have been filed by the drawback claimant as required by 19 U.S.C. § 1514(c)(2)(D) and consequently is not a valid Protest.

2. The 3-year requirement in 19 U.S.C. § 1313(r)(1) applies to the instant protested drawback entries filed on 8/18/1997 and 8/19/1997.

Therefore, this Protest should be DENIED in full. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 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 Regulations and Rulings 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

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