Shell Oil Co. v. United StatesShell Oil Co. v. United States
OPINION
In this action, Plaintiff Shell Oil Company contests the U.S. Customs Service’s denial of protests filed by Shell seeking drawback (refund) of certain taxes and fees. See Memorandum in Support of Plaintiffs Motion for Summary Judgment (“Pl. Brief’) at 4-5. 1 Distilled to its essence, the issue presented is the timeliness of Shell’s requests for such drawback. See Defendant’s Response to Plaintiffs Motion for Summary Judgment (“Def. Brief’) at 1, 5, 8.
The relevant facts are relatively straightforward and not in dispute. The action involves seven claims and one partial claim for non-manufacturing substitution drawback associated with certain petroleum products that Shell imported between 1993 and 1994, and acceptable substitute finished petroleum derivatives that were exported during the same period. See Pl. Brief at 1; Def. Brief at 4.
in pertinent part, the drawback statute requires all drawback claims to be filed within three years of the date of exportation of the substitute merchandise. See 19 U.S.C. § 1313(r)(l) (1994). 2 It is undisputed that Shell filed timely drawback claims, expressly seeking drawback only as to the import duties that the company had paid upon importation of the petroleum products at issue. See Pl. Brief at 1; Plaintiffs Reply to Defendant’s Response in Opposition to Plaintiffs Motion for Summary Judgment (“Pl. Reply Brief’) at 8, 23; Def. Brief at 4-5, 6, 7, 11-12,13. It is similarly undisputed that Customs refunded as drawback 99% of the import duties, in accordance with the drawback statute. See Pl. Brief at 1; Def. Brief at 5, 12; 19 U.S.C. § 1313. Finally, it is also undisputed that, on November 7, 1997 (more than three years after the date of Shell’s exportation of the substitute petroleum products), Shell filed protests with Customs, seeking — for the first time — drawback as to Harbor Maintenance Tax (“HMT”) and Environmental Tax (“ET”) payments that Shell had made in connection with the imports at issue. See Pl. Brief at 1; Pl. Reply Brief at 6; Def. Brief at 5, 7. 3 Customs promptly denied Shell’s protests. See Pl. Brief at 1; Def. Brief at 5. Shell thereafter filed a timely summons in this Court.
This action, which has been designated a test case pursuant to USCIT Rule 84, is
Jurisdiction lies under 28 U.S.C. § 1581(a). For the reasons that follow, Shell’s Motion for Summary Judgment must be denied, and summary judgment is granted in favor of the Government.
I. Background
This action involves seven claims and one partial claim for non-manufacturing substitution drawback associated with certain petroleum products that Shell imported between 1993 and 1994, and acceptable substitute finished petroleum derivatives that were exported during the same period. See generally 19 U.S.C. § 1313(p) (addressing drawback and “Substitution of finished petroleum derivatives”). At issue is the timeliness of Shell’s claim for drawback (refund) of certain taxes and fees, specifically HMT and ET.
The drawback statute requires all drawback claims to be filed within three years of the date of exportation of the substitute merchandise, and claims that are not completed within the three-year period are — in the words of the statute — “considered abandoned.” See 19 U.S.C. § 1313(r)(l). A cоmplete drawback claim consists of “[a] drawback entry and all documents necessary to complete a drawback claim.” See 19 U.S.C. § 1313(r)(l). 5 At the time of the transactions in question, claims filed under the provision of the drawback statute at issue here (ie., the “substitute petroleum derivatives” provision) were limited to 99% of “the amount of the duties paid on, or attributable to” the imported petroleum products. See 19 U.S.C. § 1313(p); 19 U.S.C. § 1313(a). 6
Shell’s timely drawback claims, filed in 1995 and 1996, sought drawback only as to
Thereafter, on November 7, 1997 (after the statutory three-year period for the filing of drawback claims had expired), Shell filed protests with Customs, seeking — for the first time — drawback as to HMT and ET payments that Shell had made in connection with the imports at issue. Customs denied Shell’s protests less than a month later, on December 3, 1997, stating:
Under provisions of 19 U.S.C. § 1313(b) & (p) drawback is allowed upon Customs duty paid on imported merchandise. Harbor Maintenance Tax (HMT) is an incidental expense incurred upon a vessel entering a harbor. The HMT is not incurred as a result of the importation of merchandise but simply imposed for the use of the harbor. The fee is collected by U.S. Customs for the benefit of the Army Corps of Engineers.
Protest No. 5301-97-100421 (Dec. 3, 1997) (same language used to deny all of Shell’s protests). Some months later, Shell commenced this action, filing a timely summons in this Court. 8
In addition, the 1999 amendments suspended the standard statutory three-year period for the filing of drawback claims, but only as to “drawback claim[s] filed within 6 months after the date of enactment of [the 1999 amendments]” for which the statutory three-year period had expired.
See
1999 Trade Act, Pub.L. No. 106-36, § 2420(e), 113 Stat. 127, 179 (1999).
10
The effect of that language was to “creat[e] a six-month grace period in which otherwise untimely [drawback] claims could be filed or re-filed to obtain relief under the amended statute.”
See Aectra,
Shortly thereafter, however, the Court of Appeals issued its decision in
Texport,
interpreting the statute’s “because of ... importation” language to preclude the payment of drawback on any “duty, tax, or fee that is assessed in a nondiscriminatory fashion against all shipments” — not just imports — “utilizing ports.”
See Texport Oil Co. v. United States,
In December 2004, Congress amended the drawback statute with the express intent of overturning Texport and eliminating the distinction between taxes and fees that discriminate against imports and those that do not. See S. Rep. 108-28 (2003), at 173 (stating that “the U.S. Court of Appeals for the Federal Circuit erred in overturning the U.S. Court of International Trade’s ruling in [Texport] that [the “unused merchandise” provision of the drawback statute] allows drawback of [HMT]”). In particular, the 2004 amendments deleted the “because of ... importation” language, and instead made eligible for drawback “any duty, tax, or fee imposed under Federal law upon entry or importation.” See 19 U.S.C. § 1313(j) (Supp. V 2005) (emphases added); see also S. Rep. 108-28, at 173. With the 2004 amendments, taxes and fees such as HMT and ET were thereafter indisputably eligible for drawback.
Unlike the 1999 amendments, which included a “grace period” to allow the filing (or re-filing) of otherwise untimely drawback claims, the 2004 amendments applied only to any “drawbаck claim filed on or after [the date of the 2004 amendments’ enactment] and to any drawback entry filed before that date if the liquidation of the entry [was] not final on that date.”
See
Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108^129, Title I, § 1557(b), 118 Stat. 2579 (2004). “Nothing in the text of the [2004 amendments] states or suggests that [the amendments were] intended to waive the normal three-year limit” on the filing of drawback claims.
See Aectra,
The Court of Appeals most recently considered these statutory provisions in
Aectra,
a case with some striking similarities to the case at bar.
See Aectra Refining & Marketing, Inc. v. United States,
Like Shell’s protests, Aectra’s protests also were denied.
See Aectra,
The Court of Appeals affirmed. In so doing, the Court of Appeals acknowledged that, at the time of the transactions in
Aectra
(as here), the law did not yet provide for drawback of taxes and fees in cases like
Aectra
and the case at bar, which involve substitute petroleum derivatives.
See Aectra,
The Court of Appeals held that Aectra was entitled to no relief because Aectra failed to properly claim drawback of taxes and fees within the statutory three-year period within which all drawback claims must be filed.
See generally Aectra,
Due to the explicit nature of the 1998 regulation (which does not apply in the case at bar), the Court of Appeals had no occasion in Aectra to consider matters such as whether, absent that 1998 regulation, the drawback statute or regulations otherwise required that a drawback claimant include in its timely-filed drawback claims all sums (including taxes and fees) that the claimant sought to recover, and whether (even if a drawback claimant was not required to include in its timely-filed claim all sums sought as drawback, including taxes and fees) a claimant was nevertheless required to give Customs some sort of notice of its claim for drawback of taxes and fees within the statutory three-year period.
The Court of Appeals also rejected various other theories of recovery advanced by Aectra. For example, much like Shell here, “Aectra argued in essence that the 2004 [amendments to the statute] suspended the three-year limitations period.”
See Aectra,
Against this backdrop, Shell maintains that it is entitled to drawback of HMT and ET paid on the subject imports. The Government counters that Shell’s claims for drawback of HMT and ET were not timely, and that Customs therefore properly denied Shell’s protests. Thus, as in Aectra, the ultimate question presented here is whether Shell timely claimed drawback of HMT and ET.
II. Standard of Review
Under USCIT Rule 56, summary judgment is appropriate where “there is no genuine issue as to any material fact” and the moving party is entitled to judgment as a matter of law. USCIT R. 56(c). Further, where it is otherwise appropriate, summary judgment may be granted
sua sponte
in favor of the non-moving party, or even in the absence of any motion, provided that all parties are afforded an appropriate opportunity to come forward with relevant evidence.
See Celotex Corp. v. Catrett,
III. Analysis
Simply stated, Shell here seeks to recover on drawback claims that it never timely made. Shell suggests that it is entitled to recover drawback of HMT and ET that it failed to timely seek because, according to Shell, the company otherwise complied with the statute and with Customs’ regulations in filing the company’s timely claims for drawback of import duties. In particular, Shell focuses on its contention that the company’s entries were not subject to the 1998 “correct calculation” regulations addressed in Aectra. However, even if Shell was not required to “correctly calculate” the amount sought in its timely-filed drawback entry forms (to include in the calculation any sums for drawback of HMT and ET that the company wished to claim), Shell failed to take any action whatsoever to make or preserve claims for drawback of HMT or ET within the strict statutory three-year period in which all drawback claims must be filed. 13
Shell does not even allege that it put Customs on notice that it was requesting drawback of HMT and ET within the statutory three-year period. Rather, the entirety of Shell’s actions within the three-year period indicated that the company was seeking drawback of import duties only. Shell’s first indication that it wished to seek drawback of HMT and ET was in its protests, which were filed outside the mandatory statutory three-year window. Distilled to its essence, Shell’s argument seems to be that the company’s timely-filed claims for drawback of import duties somehow implicitly included claims for drawback of HMT and ET. But Aectra laid the concept of such “implicit claims” to rest.
Shell also seeks to avail itself of the statutory amendments that made HMT and ET eligible for drawback, but which were enacted well after Shell’s claims for drawback of import duties were filed and paid, the associated liquidations were protested, and the protests were denied. Although a special provision of the 1999 amendments expressly authorized claimants such as Shell to file (or to re-file) otherwise untimely drawback claims, Shell failed to take advantage of this “second bite at the apple.”
Shell argues in the alternative that it was justified in failing to file claims for
As outlined in greater detail below, Shell failed to file its drawback claims for HMT and ET in a timely fashion. Like the untimely claimant in Aectra, Shell is therefore entitled to nothing.
A. Shell’s Failure to Timely Claim Drawback of HMT and ET
Shell goes to great lengths in an effort to distinguish this case from Aectra. As discussed herein, however, Shell’s attempts to distance itself from Aectra meet with (at most) limited success. In any event, as the Government notes, Shell largely ignores the bigger picture: Even if (as Shell contends) the regulations then in effect did not require Shell to “correctly calculate” the amount of drawback sought, that would excuse only the company’s failure to include sums for drawback of HMT and ET in the timely claims that the company filed seeking drawback of import duties. But Shell was nevertheless required to take some type of action within the statutory three-year period for the filing of drawback claims, in order to put Customs on notice of the company’s claims for drawback of HMT and ET and to properly preserve those claims. That Shell failed to do.
Shell offers no adequate explanation for its failure to assert timely “protective claims” for drawback of HMT and ET. Further, contrary to Shell’s assertions, the company’s protests could not operate to properly preserve its claims for drawback of HMT and ET, because the protests were not filed within the statutory three-year period for the filing of drawback claims. Finally, Shell contends that its timely-filed claims for drawback of import duties implicitly included claims for drawback of HMT and ET as well. But that same argument was rejected in Aectra. As such, Shell never claimed for drawback of HMT and ET within the statutory three-year period for the filing of drawback claims.
Shell also seeks to rely on the 1999 and 2004 amendments to the drawback statute. But, contrary to Shell’s assertions, the 2004 amendments did not waive the normal statutory three-year limit on the filing of drawback claims. Further, although the 1999 amendments provided a special six-month “grace period” for the benefit of claimants such as Shell who had drawback claims that were otherwise untimely, Shell took no action to avail itself of that onetime opportunity to assert its claims for drawback of HMT and ET.
Accordingly, Shell_ failed to timely claim drawback of HMT and ET- — either during the normal statutory three-year period for the filing of drawback claims, or during the special six-month grace period established in the 1999 statutory amendments.
1. Shell’s Failure to Claim for Drawback of HMT and ET During Statutory Three-Year Period for Filing of Drawback Claims
Shell candidly concedes, as it must, that there are significant parallels between the instant case and
Aectra. See
PI. Brief at 2-3;
Aectra,
back -within the statutory three-year period for the filing of drawbaсk claims.
But Shell accords far too much weight to the difference between the regulations that applied in
Aectra
and the regulations that apply in the case at bar. The explicit nature of the 1998 regulation addressed in
Aectra
— 19 C.F.R. § 191.51(b) — may have made that case somewhat more straightforward; but the merits of the two cases are not fundamentally different.
15
In any
Whether or not the regulations then in force required (either implicitly or explicitly) that Shell “correctly calculate the amount of drawback due” as part of a “complete” drawback claim is largely beside the point. See generally Def. Brief at 6, 11-13 (noting that “[b]y alleging merely that the 1998 regulation did not apply to Shell’s drawback claims, Shell overlooks the more fundamental point underlying the Aeetra decision”). As the Government observes, “[r]egardless of whether Shell was exempted from a later explicit requirement to ‘correctly calculate’ the amount sought in its drawback claim, Shell did not make or preserve any claim for HMT ... or ET within the three year statutory window.” Def. Brief at 6 (emphasis added). Shell plainly was required to take some kind of action within the statutory three-year period to put Customs on notice of the company’s claim for drawback of HMT and ET, if Shell wished to preserve such a claim.
Arguing that it was not entitled to recover drawback on taxes and fees until the 1999 amendments,
16
Shell apparently contends that, as a practical matter, it cannоt
In other words, it appears that others in the industry were at least contemplating what Shell asserts it could not (and need not) have done within the statutory three-year period in question. And even Shell itself raised the issue of drawback of taxes and fees such as HMT and ET at least as early as June 1996, and then again in November 1997, when it filed the protests at issue here — albeit somewhat beyond the statutory three-year period, given the export dates of the merchandise in question. 17 Shell’s own actions thus undermine its assertions that a company would have had to be “prescient” to have sought to preserve a right to seek drawback of HMT and ET before the statute was amended in 1999. See PL Reply Brief at 23 (labeling as “prescient” all “drawback claimants who had filed claims for [HMT and ET] ... years before the right to make such claims arose”); id. аt 7 (arguing that drawback claimants would have required “prescience” to have sought to preserve future right to claim drawback of HMT and ET).
Here — as in
Aectm
— it is not clear why, if the company wished to seek drawback of HMT and ET, it did not include a “protective claim” for such drawback within the statutory three-year period, whether by including HMT and ET in its timely-filed drawback claims (rather than claiming drawback only for import duties) or otherwise.
See Aectra,
Finally, Shell’s attempts to characterize its protests as “protective claims” for
In essence, Shell contends that it is entitled to drawback of HMT and ET even though it did not claim for (or even refer to) drawback of HMT and ET — much less include a “correct calculation” reflecting those sums — in the timely claims for drawback of import duties that the company filed with Customs. The Government puts it succinctly: “Although Shell’s motion avoids using the term, Shell’s claim for drawback of [HMT and ET] rests upon the theory that such claims were implicit in its proper and timely drawback claim for import duties.” See Def. Brief at 11-12; see also id. at 6 (noting that “Shell’s argument amounts to a contention that [claims for HMT and ET] were somehow implicitly preserved”).
Aectra
expressly rejected this very argument. Like Shell in this case, the plaintiff in Aectra asserted that claims for taxes and fees, including HMT, “were ‘implicit’ in its timely filing requesting a refund of customs duties”
(i.e.,
its drawback claim).
See Aectra,
Although Shell failed to assert any sort of “protective claim” for drawback of HMT and ET within the regular statutory three-year period for the filing of drawback claims, and although claims for drawback of HMT and ET were not “implicit” in its timely-filed claims for drawback of import duties, Shell was by nó means without recourse. The 1999 amendments to the statute were designed to afford relief to drawback claimants such as Shell, who had claims that were otherwise untimely. As discussed below, however, Shell once again failed to take the steps necessary to assert claims for drawback of HMT and ET in a timely fashion.
2. Shell’s Reliance on 1999 and W04. Amendments to Drawback Statute
Shell asserts that Congress intended the 1999 and 2004 amendments not only “to remove all doubt as to the drawback eligibility” of taxes and fees such as HMT and ET, but also to be “retroactive as to claims such as those at bar” which Shell contends “were ‘preserved’ by way of timely protest.” See PI. Reply Brief at 19; see also id. at 7-8. Shell is correct as to the first part of that proposition — that is, that Congress sought to amend the statute to provide for the eligibility for drawback of certain taxes and fees, including HMT and ET. See PI. Reply Brief at 19. But the second half of Shell’s assertion is erroneous, both as to the retroactivity of the amendments and their effect on the protests that Shell had previously filed.
Specifically, Shell’s argument that Congress “made such amendments retroactive” by authorizing the filing of claims outside the normal three-year limit is true only as to the 1999 amendments. The 2004 amendments applied only prospectively, and to “not yet finally liquidated [entries]” that “already included a timely protective request” for taxes and fees.
See Aectra,
As the Court of Appeals observed in
Aectra,
one effect of the 1999 amendments was to “creat[e]
a six-month grace period
in which otherwise untimely claims could be
filed or re-filed to
obtain relief.”
See Aectra,
Moreover, the calculated use of the terms “filed” and “after” in the language of the 1999 amendments- — expressly requiring that “a drawback claim [be] filed within 6 months after the date of the enactment” of those amendments- — -refutes any suggestion that Shell’s untimely, previously-filed and -denied protests sufficed to protect whatever rights to drawback of HMT and ET that the company otherwise may have had. Compare PI. Reply Brief at 19 (asserting that Congress “made ... amendments retroactive as to claims such as those at bar which were ‘preserved’ by way of timely protest”); id. at 8 (stating that Shell “timely protested Customs’ liquidations ‘in order to preserve’ any future claims which might arise” (emphasis omitted)). The unambiguous language of the 1999 amendments makes it abundantly clear that a party’s affirmative action— that is, the “fil[ing]” of a “drawback claim” — was required “within 6 months after the date of the enactment” of the amendments, in order to recover for “any drawback claim ... for which [the normal] 3-year period would have expired.”
Shell has offered no adequate explanation as to why, in the wake of the 1999 amendments, it took no action to avail itself of the opportunity to “file[ ]” (or refile) a drawback claim for HMT and ET within the six-month grace period provided for in the amendments.
23
The Govern
In sum, аlthough the 1999 amendments unambiguously suspended the statutory three-year limit for the filing of drawback claims, the amendments did so only as to otherwise untimely claims that an importer “filed within 6 months after the date of the enactment of [the 1999 amendments] [ie., June 25,1999].” See “Effective Date” provision, 1999 Trade Act, § 2420(e), 113 Stat. 179 (emphases added). Congress was under no obligation to provide for a grace period for claims outside the regular statutory three-year period. 24 It follows that, having elected to provide for such a grace period, Congress was entitled to require that parties seeking to avail themselves of the grace period “file[]” (or re-file) their claims and do so within a specified period of time, whether for reasons of Customs’ administrative convenience and efficiency or otherwise.
Indeed,
Aectra
expressly rejected the type of scenario that Shell here envisions, where “a claimant could submit a partial claim for duty that would be fully paid by Customs as requested, and then institute a second proceeding, perhaps years later, requesting by protest an additional amount, thereby plainly increasing the cost and complexity of processing the claim.”
See Aectra,
B. Shell’s Asserted Justifications and Excuses for Its Failure to Comply With Statutory Limitations on Timing of Claims for Drawback of HMT andET
As discussed above, Shell failed to timely claim drаwback of HMT and ET, both during the normal statutory three-year period for the filing of drawback claims and during the special six-month grace period following the 1999 statutory amendments. However, raising a handful of asserted justifications or excuses, Shell argues that its failure to timely file its drawback claims
At the outset, it is unclear to what extent Shell’s asserted excuses and justifications should be entertained. The language of the drawback statute expressly states that “[ejlaims not asserted within the 3-year period shall be considered abandoned,” and, further, clearly limits exceptions to that general rule, providing that “[n]o extensions will be granted unless it is established that the Customs Service was responsible for the untimely filing.” See 19 U.S.C. § 1313(r)(l). Shell has not addressed the significance of these statutory provisions in this context or their application in this case, either in its briefs or in oral argument. However, because Shell’s various asserted excuses and justifications fail for other reasons (as set forth below), there is no need to reach the issue here.
In an effort to excuse or justify its failure to avail itself of the special six-month grace period following the 1999 amendments, Shell first contends that it would have been futile for the company to assert its claims for drawback of HMT and ET. In addition, based on its premise that the “right” to drawback of HMT and ET did not truly arise until the 2004 amendments, Shell invokes the so-called “default rule” (which provides that a statute of limitations generally begins to run when a cause of action accrues) to argue that the statutory three-year time limit does not bar its claims. And, finally, Shell contends that its failure to tаke timely action was justified due to its fear that Customs would penalize the company if it claimed drawback of HMT and ET.
The analysis set forth below explains that Aectra rejected the doctrine of futility as a justification or excuse for failure to timely file claims for drawback of taxes and fees such as those at issue here. Shell fares no better on its two remaining asserted justifications or excuses. Both were raised for the first time in oral argument, and therefore are untimely and must be deemed waived. But, in any event, even if they were considered on the merits, Shell still would not prevail.
1. Futility
According to Shell, because Customs had denied its protests “well before enactment of the 1999 amendments,” it would have been pointless for Shell to file a claim for drawback of HMT and ET during “the six month ‘sunset’ period”
(ie.,
the six-month grace period) following the 1999 amendments.
See
PI. Reply Brief at 6;
see also
Recording of Oral Argument at 17:25-21:40. Shell further contends that the filing of a claim for drawback of HMT and ET during the six-month grace period was rendered even more futile by the Court of Appeals’ decision in
Texport. See
Recording of Oral Argument at 18:52-21:40; 29:45-31:40 (discussing
Texport,
In an attempt to buttress its futility argument, Shell cites
George E. Warren,
in which the Court of Appeals sustained the Court of International Trade’s ruling that — under facts significantly different from those of this case — the importer was not required to file a drawback claim for HMT and ET where Customs had previously denied the importer’s protest seeking such drawback.
See
PI. Reply Brief at 6-7;
George E. Warren,
As the Government notes, however, the purported futility of claiming drawback of HMT and ET does not excuse a failure to file a claim within thе statutory three-year period.
See
Def. Brief at 10-11; Re
[FJutility does not excuse the failure to file a proper claim for limitations purposes. A claimant is generally required to file a complete and specific claim within the limitations period, even if the government authority to whom the claim is presented is certain to dispute the validity of the claim.
See Aectra,
Moreover, there is no truth to Shell’s assertion that the instant case and
George E. Warren
“are identical in all material respects.”
See
PI. Reply Brief at 6-7. There are at least two significant differences. As a threshold matter, the futility argument in
George E. Warren
was raised solely in the context of jurisdiction — an issue that is not presented in the case at bar.
See George E. Warren,
[The] opinion in [George E. Warren] does not suggest that a party may be excused from a failure to comply with the statute of limitations by arguing futility.
In any event, even if George E. Warren were viewed as relevant to the limitations issue, that case dealt with the unique circumstance in which Congress in 1999 extended the three-year statute of limitations after Customs (in acting on a protest) had denied the requested refunds; at most [George E. Warren] held that under such circumstances the filing of a new claim in the extended limitations period was unnecessary since Customs already had notice of the claim. No comparable circumstances exist here since Customs was never presented with, and therefore never addressed, Aectra’s claim for HMT during the limitations period.
See Aectra,
2. The “Default Rule ”
Shell’s second excuse—raised for the first time in the course of oral argument—is the so-called “default rule,” which refers to the broad principle that “Congress generally drafts statutes of limitations to begin when the cause of action accrues” and “legislates against the ‘standard rule that the limitations period commences when the plaintiff has a complete and present cause of action.’ ”
See Graham County Soil & Water Conservation Dist. v. United States,
Emphasizing that
Texport
(which interpreted the statute as amended in 1999 to preclude drawback of HMT, and, by extension, ET) was issued shortly after the 1999 amendments, Shell argues that the “right” to drawback of HMT and ET did not arise until the effective date of the 2004 amendments. From that premise, Shell reasons that—based on the default rule—if the “right” to drawback of HMT and ET did not arise until 2004, the time period for claiming the right presumably did not begin before that time.
See
Recording of Oral Argument at 14:28-14:45; 15:05-16:18 (Shell argued that right to drawback of HMT and ET did not arise until 2004; and that, per default rule, Congress did not intend time for making claim to expire before right to claim arose, and thus did not intend for new right not to apply to previous entries the liquidation of which was not final). In making its argument, Shell discounts the Court of Appeals’ statement in
Aectra
that the 2004 amendments in fact were “not designed to create a new right,” but instead were intended to overrule
Texport
and thus to clarify the pre-existing right to drawback of HMT.
See Aectra,
Shell’s “default rule” argument is both untimely and lacking in merit. As noted above, Shell raised the argument for the first time at oral argument.
27
Shell’s briefs do not even allude to the default
As an initial matter, Shell has not established that the default rule applies to administrative deadlines, such as the statutory three-year period for the filing of drawback claims at issue here; and the court’s own preliminary legal research has disclosed no instances in which the default rule has been applied other than cases involving statutes of limitations for the commencement of actions in court.
Even more to the point, though, there is no need to resort to the default rule here. As explained above, the default rule is an interpretative tool for use where a particular statute is ambiguous and arguably could be read to provide that a statute of limitations begins to run before the associated cause of action accrues.
See Dodd v. United States,
As discussed at some length above, the period within which all drawback claims must be filed is specified by statute, which is clear and unequivocal: “a drawback entry and all documents necessary to complete a drawback claim ... shall be filed ... within [three] years after the date of exportation or destruction of the articles on which drawback is claimed.” See 19 U.S.C. § 1313(r)(l) (emphases added). The drawback statute thus establishes both the event that gives rise to the right to drawback and commences the period for the filing of a claim (i.e., the “exportation or destruction” of the subject merchandise), and also the duration of the period within which a drawback claim may be filed (ie., three years from the date of “exportation or destruction”). As such, there is no uncertainty or incongruence as to when the right to claim drawback arises and when the statutory three-year period for the filing of drawback claims commences — and both are the same date. Under these circumstances, there is no apparent ambiguity for the default rule to resolve.
Congress’ decision not to include a grace period in the 2004 amendments evinces a clear intent to preclude drawback of fees and taxes such as HMT and ET by those importers — like Shell — who did not claim
Congress predicated the right to drawback of HMT and ET on the filing of a timely claim for such drawback, either during the regular statutory three-year period or during the six-month grace period following the 1999 amendments. The default rule that Shell invokes does not, and cannot, provide otherwise. Therefore, like its futility argument, Shell’s “default rule” argument also must fail.
3. Shell’s Alleged Fear of Revocation of Its Accelerated Payment Privileges
As its third and final attempt to justify its failure to claim drawback of HMT and ET either within the statutory three-year period or within the six-month grace period following the 1999 amendments, Shell asserted for the first time in oral argument that — if it had filed such a claim before the 2004 amendments — the company would have been penalized by Customs. Specifically, Shell argued that Customs would have treated pre-2004 drawback claims for HMT or ET as “repeatedly file[d] claims in excess of the amount due,” and would have revoked the company’s accelerated payment privileges pursuant to 19 C.F.R. § 191.72(d). 29 See generally 19 C.F.R. § 191.72(d) (1995) (providing that “[accelerated payment [of drawback] will be denied to claimants who repeatedly file claims in excess of the amount due”); Recording of Oral Argument at 34:20-45:28; 1:53:07-1:55:00; 2:19:12-2:21:54; see also id. at 1:59:22-2:07:53 (argument by counsel for other petroleum companies). 30 Shell maintains that its failure to “file[ ]” (or refile) a claim for drawback of HMT and ET either within the regular statutory three-year period or during the six-month grace period following the 1999 amendments therefore should be excused.
Yet again, Shell’s asserted defense is untimely as well as unfounded. As noted above, Shell raised the spectre of revocation of accelerated payment privileges for the first time in the course of oral argument on its pending motion. Significantly, neither of Shell’s briefs included even a citation to 19 C.F.R. § 191.72(d) (the regulation on which Shell now relies), much less an argument predicated on it.
31
Even if Shell had briefed (and thus properly preserved) its argument, however, it nevertheless would nоt succeed. When pressed at oral argument, neither counsel for Shell nor counsel for the other petroleum companies could cite even a single case in which Customs in fact had revoked a drawback claimant’s accelerated payment privileges because the claimant had sought drawback of HMT and ET before 2004.
See
Recording of Oral Argument at 37:35-41:55; 2:01:35-2:02:05.
32
Indeed, Shell has offered nothing to substantiate its allegation that, if it had filed claims for drawback for HMT and ET before 2004, Customs would have considered such claims to be “repeatedly file[d] claims” that were “in excess of the amount due.” Similarly, Shell has pointed
The entirety of Shell’s 19 C.F.R. § 191.72(d) defense thus consists of little more than Shell’s quotation of the text of the pre-1998 version of that regulation, and the bare representation of counsel for the other petroleum companies that — prior to the 2004 amendments — the industry feared that claiming drawback of HMT and ET would result in Customs’ revocation of a drawback claimant’s accelerated payment privileges. However, unsupported apprehension, surmise, speculation, and conjecture are insufficient to excuse compliance with the normal statutory three-year limitation applicable to the filing of all drawback claims. 33
Finally, even if Shell had timely raised and briefed its argument concerning the alleged fear of revocation of accelerated payment privileges (which it did not), and even if Shell had adequately substantiated that argument (which it did not), it is also the fact that Shell has cited no case law or other authority for the bottom-line proposition that a fear of revocation of accelerated payment privileges should suffice to excuse Shell’s failure to seek drawback of HMT and ET during the statutory three-year period for the filing of all drawback claims, or to “file[ ]” (or re-file) such claims during the six-month grace period established following the 1999 amendments to the statute. Under the circumstances, there is no need to reach that issue here.
Like Shell’s two other asserted excuses or justifications (discussed above), Shell’s argument based on an asserted fear of revocation of accelerated payment privileges also must fail.
IV. Conclusion
For all the reasons set forth above, Customs did not err in denying Shell’s pro
Judgment will enter accordingly.
Notes
. The U.S. Customs Service — formerly part of the U.S. Department of Treasury — is now part of the U.S. Department of Homeland Security, and is commonly known as U.S. Customs and Border Protection.
See Bull v. United States,
. Except as otherwise indicated, all statutory citations are to the 1994 edition of the United States Code.
. The Harbor Maintenance Tax ("HMT”) is a tax on port use imposed pursuant to the Water Resources Development Act of 1986.
See Aectra Refining & Marketing, Inc. v. United States,
.In its Motion for Summary Judgment, Shell — for the first time — sought drawback of Merchandise Processing Fees ("MPF”), which are fees “charged 'for the provision of customs services,’ and ‘[f|or the processing of merchandise that is formally entered or released during any fiscal year,’ ” and which are “intended to reimburse Customs for costs incurred in the processing of imported and exported goods.”
See
Pl. Brief at 2 n. 3, 4-5, 13; PL Reply Brief at 6, 19, 23;
Texport Oil Co. v. United. States,
. See also 19 C.F.R. § 191.2(f) (1995) (stating that a "drawback claim” is comprised of "the drawback entry and related documents required by ... regulations which together constitute the request for drawback payment”); 19 C.F.R. § 191.2(j) (1998) (same).
The "drawback entry” is "[the] document containing a description of, and other required information concerning, exported or destroyed articles on which drawback is claimed.” 19 C.F.R. § 191.2(h) (1995); see also 19 C.F.R. § 191.2(k) (1998) (same).
. At the time, a differеnt provision of the statute provided for more generous drawback on "unused merchandise.” Specifically, im
. In a 1997-98 rulemaking, Customs' regulations were revised to,
inter alia,
"clarify what documents constitute a complete drawback claim.” 62 Fed.Reg. 3082, 3087 (Jan. 21, 1997). As amended, the regulations now expressly require that a drawback claimant “correctly calculate the amount of drawback due” as an element of a "complete claim.”
See Aectra,
. This action was originally part of
Shell Oil Co. v. United States,
Court No. 98-05-02198 (Ct.Intl. Trade filed May 20, 1998). That action remained on the Reserve Calendar pending the decision in
George E. Warren Corp. v. United States,
Upon severance from Court No. 98-05-02198, the instant action was suspended under
Aectra Refining & Marketing, Inc. v. United States,
Court No. 04-00354 (Ct.Intl. Trade filed July 23, 2004). Following the issuance of
Aectra v. U.S.,
In addition, after the pending Motion for Summary Judgment was filed, some of the merchandise covered by one of the drawback entries here at issue was severed from this action, and was designated as a new case and then stipulated for judgment on an agreed statement of facts (again, on the grounds that the claims for drawback of taxes and fees were asserted within the statutory three-year period). See Order, Shell Oil Co. v. United States, Court No. 08-00109 (Feb. 23, 2010); Stipulated Judgment on Agreed Statement of Facts, Shell Oil Co. v. United States, Court No. 10-00069 (Feb. 7, 2011).
Indeed, numerous cases that were suspended under this action — including cases brought by Shell' — involved protests seeking drawback of taxes and fees that were filed within three years of exportation, even though the original
In the course of oral argument, the Government explained that, in the instant case, if Shell had filed its protests or otherwise asserted its claims for drawback of HMT and ET within three years of exportation, or if Shell had asserted its claims during the six-month "grace period” following the 1999 amendments to the drawback statute, the Government would have consented to stipulated judgment as it has done in other cases, including those discussed above. See Recording of Oral Argument at 1:31:10-1:31:36 (Government stated that, if protests seeking drawback of taxes and fees were filed within three years of export, the Government would not dispute that claimant is entitled to drawback of taxes and fees); see also id. at 2:17:05-2:17:25 (Government stated that Customs is treating protests seeking drawback of taxes and fees that are filed within three years of export as amendments to initial drawback claims); id. at 2:23:16-2:23:55 (Government stated that, if Shell had asserted the instant claims for HMT and ET during six-month "grace period,” Government would have consented to stipulated judgment).
.
See also Aectra,
. Specifically, the 1999 amendments provided that:
The amendments made by this section [amending this section] shall take effect as if included in the amendment made by section 632(a)(6) of the [1993] North American Free Trade Agreement Implementation Act. For purposes of section 632(b) of that Act [providing that the NAFTA Implementation Act amendments applied to any entry filed after 1988 or unliquidated as of the Act's passage], the 3-year requirement set forth in section 313(r) of the Tariff Act of 1930 shall not apply to any drawback claim filed within 6 months after the date of the enactment of this Act [June 25, 1999] for which that 3-year period would have expired.
1999 Trade Act, § 2420(e), 113 Stat. 179 (first and fourth alteration in original) (citations omitted);
see also Aectra,
. Parsing the 2004 amendments’ effectiveness provision, the Court of Appeals explained in
Aectra
that "[t]he first clause applies prospectively to new drawback 'claims’ filed on or after December 3, 2004, which may seek drawback on exports made within the previous three years,” while ''[t]he second clause covers certain drawback 'entries' filed before December 3, 2004, but not yet finally liquidated on that date.”
See Aectra,
. As
Celotex
noted, federal trial courts "are widely acknowledged to possess the power to enter summary judgments
sua sponte,
so long as the losing party was on notice that she had to come forward with all of her evidence.”
Celotex Corp.,
. Congress underscored the mandatory nature and the significance of the statutory three-year period for the filing of all drawback claims by expressly providing that "[cjlaims not completed within the 3-year period shall be considered abandoned.” See 19U.S.C. § 1313(r)(l).
. See generally Pl. Brief at 3, 5-13 (arguing that 1995 regulations did not require claimant to specify total amount of drawback due as an element of a “complete” drawback claim, and asserting that 1998 regulation addressed in Aectra imposed new requirement on drawback claimants, which cannot be given retroactive effect); Pl. Reply Brief at 1, 2-8, 22-23 (arguing that, in contrast to 1998 regulation addressed in Aectra, 1995 regulations did not require claimant to specify total amount of drawback due as an element of a "complete” drawback claim, and asserting that — even if the 1995 regulations did include such a requirement — the requirement was limited to import duties only).
In its reply brief, Shell even goes so far as to challenge the reasoning and outcome in Aectra. Shell argues — contrary to Aectra— that, notwithstanding the 1998 regulations' express requirement that a drawback claimant correctly calculate the amount of drawback due, that calculation is not a componеnt of a “complete” drawback claim, even under the 1998 regulations. See Pl. Reply Brief at 8-13. Shell argues in the alternative that, even if the correct calculation expressly required by the 1998 regulations is a component of a "complete” drawback claim, the requirement of a correct calculation is limited to import duties (and does not include taxes and fees) — again, contrary to Aectra. See Pl. Reply Brief at 13-18, 24. Shell thus appears to argue, in essence, that even if the 1998 regulation expressly requiring that a drawback claimant correctly calculate the amount of drawback due were to be given retroactive application, Shell’s 1995 drawback claims nevertheless would be "complete.”
. The Government vigorously disputes the overall thrust of Shell’s argument — that the sums of drawback sought, as specified on the "drawback entry” forms that Shell certified and filed with Customs, have no bearing on this case.
The Government emphasizes that the history of the 1997-98 rulemaking undercuts Shell’s assertions that the 1998 regulation expressly requiring that a claimant "correctly calculate the amount of drawback due” imposed a new obligation on drawback claimants. Compare Def. Brief at 9-10 with Pl. Brief at 3, 5, 8-9, 11 and Pl. Reply Brief at 1, 3; 19 C.F.R. § 191.51(b) (1998). For example, Customs explained, in promulgating the revised regulations, that one of the purposes of the changes to the drawback regulations was to "clarify what documents constitute a complete drawback claim.” 62 Fed.Reg. 3082, 3087 (Jan. 21, 1997) (emphasis added). To the same effect, the Government highlights the Court of Appeals’ observation in Aectra, stating:
As the Aectra court noted, in adopting the regulations in 1998, Customs expressly rejеcted a proposal that would have required Customs to refund all amounts due under the law regardless of whether the claimant identified that calculation. Customs concluded that “adoption " of that procedure "would create an untenable administrative burden for Customs in its processing of drawback claims.”
Def. Brief at 9
(quoting Aectra,
The Government thus points out that — contrary to Shell's claims — "there is no reason to suggest that 19 C.F.R. § 191.51(b) created ‘new duties with respect to transactions already completed.’ ”
See
Def. Brief at 9
(quoting
Pl. Brief at 11). As the Government concludes, “the 'complete calculation’ requirement [in the 1998 regulations] merely
Viewed in this context, 19 C.F.R. § 191.51(b) (1998) “merely clarified that [a] drawback claimant [is] responsible for correctly calculating its drawback request, consistent with the prior relevant law.”
See
Def. Brief at 8. Although — as
Aeetra
recognized— the statute does not
expressly
include a calculation requirement, the statute clearly requires the filing of “[a] drawback entry and all documents necessary to complete a drawback claim.”
See Aeetra,
Finally, Shell sought accelerated payment of its drawback claims, a privilege that drawback claimants may request under Customs regulations. See 19 C.F.R. § 191.72 (1995); 19 C.F.R. § 191.92 (1998); Recording of Oral Argument at 44:10-44:17; see also id. at 34:35-34:55. Even the pre-1998 regulations required that a drawback claimant seeking accelerated payment include "a computation of the amount due.” See 19 C.F.R. § 191.72 (1995). Thus, to the extent that the pre-1998 regulations did not expressly require a correct calculation as part of a "complete” drawback claim, the same certainly cannot be said of a request for accelerated payment of drawback. Those drawback claimants seeking accelerated payment, like Shell here, in fact were required to include "a computation of the amount due” — even before the regulations were revised in 1998. See Recording of Oral Argument at 1:43:35-1:44:05.
. Shell's position has not been entirely consistent. In its briefs, Shell argued that it was entitled to drawback on taxes and fees as of the 1999 amendments.
See, e.g.,
PL Reply Brief at 5. But in the course of oral argument, Shell asserted that it could not recover drawback on taxes and fеes until 2004.
See
Pl. Reply Brief at 23 (stating that HMT and ET were not available for drawback until 2004); Recording of Oral Argument at 14:28-14:45;
. Shell offered no explanation as to why it was sufficiently "prescient” to file protests seeking HMT and ET in November 1997, but lacked sufficient knowledge to assert such claims in a timely fashion within the statutory three-year period. See Recording of Oral Argument at 31:44-32:05. Indeed as discussed above, it appears that Shell in fact was protesting the issue of drawback of taxes and fees at least as early as June 1996, if not before. See Shell Oil Company c/o Gulf Coast Drawback Services, Inc. v. United States, Court No. 97-03-00386 (action filed in 1997, which, according to Summons, challenges Customs' denial of Shell's June 6, 1996 protest seeking drawback of HMT).
.
Cf. Delphi Petroleum, Inc. v. United States,
33 CIT-,-,
. Shell takes issue with
Aectra's
statement that there is "no basis” for the argument that a claim for drawback of taxes and fees is "implicit” in a timely-filed claim for drawback of customs duties.
See
PL Reply Brief at 19
(quoting Aectra, 565
F.3d at 1373 n. 11). According to Shell, the decisions of this court in
Texport
and
George E. Wanen
found claims for taxes and fees to be implicit in a claimant's claim for drawback of customs duties.
See
PL Reply Brief at 19-22
(citing Texport,
But Shell’s reliance on
Texport
and
George E. Wanen
is misplaced. First, the facts of the two cases are readily distinguishable from those of the case at bar. Moreover, the language that Shell relies upon in each case relates solely to the jurisdiction оf the court
{i.e.,
whether Customs' denials of the claimant’s protests concerning drawback of taxes and fees were properly before the court), and does not address whether the claimants properly sought drawback of taxes and fees from Customs in accordance with statutory and regulator requirements, including those governing the timing of drawback claims — which is the issue presented here.
See, e.g., George E. Warren,
Fundamentally, as Aectra explained, both
Texport
and
George E. Warren
must be read narrowly and confined largely to their facts. See generally
Aectra,
More to the point, Shell in effect seeks to use its "implicit claim” theory to circumvent the statutory requirement that all drawback claims be filed within three years after the date of exportation of the substitute merchandise. In neither
George E. Warren
nor
Texport
was the "implicit claim” theory employed for that purpose. And, indeed, the issue of the timeliness of the importer’s claims for drawback of taxes and fees was not raisеd by Customs in either appeal.
See Aectra,
Further, in at least one of the two cases, it is clear from the court's opinion that the timeliness of the importer’s claims for drawback of taxes and fees could not have been at issue. Thus, for example, in
George E. Warren,
the plaintiff had asserted its claim for HMT and ET for the first time in a protest.
See George E. Warren,
In any event, as discussed above, Aectra— which post-dates and carefully analyzes both
Texport
and
George E. Warren
— showed little hesitation in dismissing the argument of the plaintiff there that an “implicit” claim for drawback of taxes and fees was inherent in its timely-filed drawback claim for customs duties.
See Aectra,
. At oral argument, the Government identified a number of specific ways in which Shell could have timely asserted and preserved drawback claims for HMT and ET. See Recording of Oral Argument at 1:29:00-1:29:15; 1:32:40-1:33:50. The Government suggested that Shell could have initially included the sums of HMT and ET drawback that it sought somewhere on its drawback entry forms or on attachments to those forms, or Shell could have filed timely amended claims seeking drawback of HMT and ET. See Recording of Oral Argument at 1:32:40-1:33:50. The Government further noted that, during the six-month grace period following the 1999 amendments, Shell could have sought dismissal without prejudice of its court action, or requested a remand to Customs, and then, in reliance оn the 1999 amendments, filed a claim for drawback of HMT and ET with Customs. See Recording of Oral Argument at 2:24:00-2:25:10.
In addition, the Government indicated that — if Shell had filed its protests seeking drawback of HMT and ET within the statutory period — the Government would have consented to stipulated judgment in Shell’s favor, as
.
See also Delphi Petroleum,
33 CIT at-
&
n. 9,
. The 1999 amendments specified, in relevant part:
The amendments made by this section [amending this section] shall take effect as if included in the amendment made by section 632(a)(6) of the [1993] North American Free Trade Agreement Implementation Act. For purposes of section 632(b) of that Act [providing that the NAFTA Implementation Act amendments applied to any entry filed after 1988 or unliquidated as of the Act's passage], the 3-year requirement set forth in section 313(r) of the Tariff Act of 1930 shall not apply to any drawback claim
filed
within
6 months after
the date of the enactment of this Act [June 25, 1999] for which that 3-year period would have expired. 1999 Trade Act, § 2420(e), 113 Stat. 179 (emphases added; first and fourth alteration in original) (citations omitted);
see also Aectra,
As discussed above, Shell did not "file[ ]'' a "drawback claim” for HMT and ET; and the company certainly did not do so in the "6 months after " June 25, 1999. There can be no assertion that Shell’s previously-denied protest or its already-pending court action constituted a "drawback claim filed within six months after” the enactment of the 1999 amendments. (Emphases added.)
. Shell’s argument that it would have been futile to file a drawback claim for HMT and ET in the six-month grace period has no legs,
.
Cf. Aectra,
.
See also Aectra,
. See also Recording of Oral Argument at 15:05-15:38 (Shell stated that it bases its default rule argument on a 2005 U.S. Supreme Court decision, though it did not name the case).
. In the course of oral argument, Shell assured the Court that it would seek leave to “provide a short brief on the default rule as it applies to ... the retroactive application of the 2004 amendment.” See Recording of Oral Argument at 14:45-15:05. However, Shell never filed a supplemental brief, or sought leave to do so.
In oral argument, Shell also asserted, in passing, that Supreme Court precedent on the separation of powers doctrine is inconsistent with the Court of Appeals' observation in
Aectra
that "the 2004 ,.. amendment was not designed to create a new right,” but, rather, to clarify that HMT was already eligible for drawback.
See
Recording of Oral Argument
On the wafer-thin record (particularly given the absence of any briefing), it is impossible to address the merits of Shell’s separation of powers argument in any meaningful way. In any event, the fact that Shell never briefed the argument and instead raised it for the first time in oral argument precludes Shell from pressing the point in this action.
See, e.g., Novosteel SA v. United States,
.
See also Aectra,
. As note 15 above explains, Customs regulations permit claimants to request accelerated payment of drawback claims. See 19 C.F.R. § 191.72 (1995); 19 C.F.R. § 191.92 (1998).
. At oral argument on Shell's Motion for Summary Judgment, Citgo Petroleum Corporation, Texaco Refining & Marketing Inc., and Texaco Aviation Products, LLC were permitted, with the consent of all parties, tо offer brief argument in support of Shell’s position. They are referred to herein generally as “the other petroleum companies.”
.In its reply brief, Shell asserted that, under 19 U.S.C. § 1593a, “the filing of [drawback] claims for taxes and fees in 1995 would have subjected a claimant to ... penalties imposed ... for filing false drawback claims.”
See
PI. Reply Brief at 8. However, Shell’s briefs made no reference whatsoever to 19 C.F.R. § 191.72(d) — the regulation that it invoked for the first time in the course of oral argument. On the other hand, Shell made no reference to 19 U.S.C. § 1593a in oral argument. Particularly under those circumstances, a single sentence in a reply brief is
Even if Shell had properly preserved the argument, however, Shell could not prevail, because Shell did nothing to substantiate the argument. For example, Shell did not identify even a single case where Customs imposed penalties for filing false drawback claims on a claimant that filed a drawback claim for taxes and fees in 1995 (or before). Nor did Shell point to any other evidence to document its assertion that filing a drawback claim for taxes and fees in 1995 would have subjected a claimant to penalties for filing false drawback claims. Similarly missing from the record is anything to establish that Shell in particular actually considered filing claims for drawback of HMT and ET in 1995, but then made a conscious decision not to do so out of fear that the company would be subject to penalties under 19 U.S.C. § 1593a. Finally, and perhaps most importantly, even if Shell had properly preserved its argument, and even if that argument had been adequately substantiated, Shell has cited no case law or other authority to support the proposition that a fear of penalties under 19 U.S.C. § 1593a is sufficient to excuse a failure to comply with the statutory requirement that all claims for drawback be filed within three years.
. The sole case that Shell cited to support its assertion that Customs would have revoked Shell’s accelerated payment privileges if the company had filed pre-2004 drawback claims for HMT and ET was a case that Shell raised for the first time in oral argument, and referred to as "the
Pillsbury
case.”
See
Recording of Oral Argument at 37:35-41:55;
see also The Pillsbury Company v. United States,
Contrary to Shell’s implication,
Pillsbury
did not involve Customs' revocation of accelerated payment privileges. Instead,
Pillsbury
concerned Customs' revocation of a claimant’s authority to use the "Exporter’s Summary Procedure” (which allows multiple shipments to be combined on a single drawback claim), as well as Customs' revocation of the claimant’s "blanket waiver” (which excused the claimant from the regulatory requirement to provide Customs five working days’ advance notice of the exportation of goods that would be the subject of a same condition drawback claim).
See Pillsbury,
Pillsbury therefore provides no support for Shell's assertion that Customs would have revoked Shell's accelerated рayment privileges if the company had filed pre-2004 drawback claims for HMT and ET. Pillsbury addressed the revocation of entirely different privileges for entirely different reasons.
. The 1998 amendments to Customs' regulations included amendments to the provisions governing accelerated payment of drawback on which Shell relies for its excuse. The amended regulations do not include the language concerning "repeatedly file[d] claims in excess of the amount due” on which Shell premises its argument concerning the alleged fear of revocation of accelerated payment privileges. Compare 19 C.F.R. § 191.72(d) (1995) with 19 C.F.R. § 191.92(f) (1998). Instead, the amended regulations authorize Customs to revoke "the approval of an application for accelerated payment of drawback ... for good cause (that is, noncompliance with the drawback law and/or regulations).” See 19 C.F.R. § 191.92(f) (1998).
For all the reasons outlined above, Shell cannot here rely on the pre-1998 version of 19 C.F.R. § 191.72(d) to circumvent the statutory three-year limit on the filing of drawback claims. For analogous reasons, Shell similarly cannot rely on the post-1998 version of the regulation to excuse its failure to “fil[e]” (or re-file) its claim for drawback of HMT and ET during the six-month grace period provided for in the 1999 amendments to the drawback statute. Thus, for example, Shell has not even alleged, and certainly has not proved, that — had Shell filed a claim for drawback of HMT and ET within the six-month grace period — Customs would have considered that claim to be one not made "for good cause,” much less that, in the event that Customs had reached such a conclusion, the agency would have responded by revoking Shell's accelerated payment privileges.