[Federal Register Volume 69, Number 194 (Thursday, October 7, 2004)]
[Rules and Regulations]
[Pages 60082-60083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22599]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Part 191

[CBP Dec. 04--33]
RIN 1505-AB44


Merchandise Processing Fees Eligible To Be Claimed as Certain 
Types of Drawback Based on Substitution of Finished Petroleum 
Derivatives

AGENCY: Customs and Border Protection, Homeland Security; Treasury.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the Customs and Border Protection (CBP) 
Regulations to provide that merchandise processing fees are eligible to 
be claimed, in limited circumstances, as drawback based on substitution 
of finished petroleum derivatives. The changes implemented by this 
document are consistent with a court decision in which merchandise 
processing fees were found to be eligible to be claimed as unused 
merchandise drawback. As drawback based on substitution of finished 
petroleum derivatives is, in limited circumstances, treated in the same 
manner as unused merchandise drawback, this amendment reflects that 
merchandise processing fees are also eligible to be claimed as drawback 
in these circumstances.

DATES: Effective November 8, 2004.

FOR FURTHER INFORMATION CONTACT: William G. Rosoff, Chief, Duty and 
Refund Determinations Branch, Office of Regulations and Rulings, U.S. 
Customs Service, Tel. (202) 572-8807.

SUPPLEMENTARY INFORMATION: 

Background

Merchandise Processing Fees

    Merchandise processing fees are fees the Secretary of the Treasury 
charges and collects for the processing of merchandise that is formally 
entered or released into the United States. See 19 U.S.C. 58c(a)(9)(A). 
Merchandise processing fees are assessed as a percentage of the value 
of the imported merchandise, as determined under 19 U.S.C. 1401a.

Merchandise Processing Fees Eligible To Be Claimed as Drawback

    Section 313 of the Tariff Act of 1930, as amended, (19 U.S.C. 
1313), concerns drawback and refunds. Drawback is a refund of certain 
duties, taxes and fees paid by the importer of record and granted to a 
drawback claimant under specific conditions.
    In Texport Oil v. United States, 185 F.3d 1291 (Fed. Cir. 1999), 
the Court of Appeals for the Federal Circuit (CAFC) held that 
merchandise processing fees were assessed under Federal law and imposed 
by reason of importation and therefore eligible to be claimed as unused 
merchandise drawback pursuant to 19 U.S.C. 1313(j).
    Subsection (p) of 19 U.S.C. 1313 authorizes drawback that is based 
on ``substitution of finished petroleum derivatives.'' Subsection 
(p)(4)(B) of 19 U.S.C. 1313, in pertinent part, limits the amount of 
drawback payable under this subsection to the amount of drawback that 
would be attributable to the article ``if imported under [subsection 
1313(p)(2)(A)(iii) or (iv)] had the claim qualified for drawback under 
subsection (j).'' [emphasis added]
    Subsection 1313(p)(2)(A)(iii) requires that the exporter of the 
exported article imported the qualified article in a quantity equal to 
or greater than the quantity of the exported article. Subsection 
1313(p)(2)(A)(iv) requires that the exporter of the exported article 
purchased or exchanged, directly or indirectly, an imported qualified 
article from an importer in a quantity equal to or greater than the 
quantity of the exported article.
    The language ``had the claim qualified for drawback under 
subsection (j)'' reflects that drawback is payable under 
1313(p)(2)(A)(iii) or (iv) pursuant to the same formula set forth in 
subsection 1313(j), i.e., the amount of drawback payable under 19 
U.S.C. 1313(j) is not to exceed 99 percent of any duty, tax, or fee 
imposed under Federal law because of the imported article's 
importation. The term ``drawback payable'' under 19 U.S.C. 
1313(p)(2)(A)(iii) and (iv) includes the merchandise processing fee.
    Consistent with the determination of the CAFC that merchandise 
processing fees are eligible to be claimed as drawback pursuant to 19 
U.S.C. 1313(j), such fees are also eligible to be claimed as drawback 
when drawback is based on substitution of finished petroleum 
derivatives pursuant to 19 U.S.C. 1313(p)(2)(A)(iii) or (iv).

Amendment to CBP Regulations To Reflect the Texport Oil Decision

    The Texport Oil decision is reflected in the CBP Regulations at 
Sec. Sec.  191.3 and 191.51. See 67 FR 48547 (July 25, 2002), in which 
a final rule was published amending the CBP Regulations to reflect that 
merchandise processing fees are eligible to be claimed as unused 
merchandise drawback pursuant to 19 U.S.C. 1313(j).
    On October 2, 2003, CBP published in the Federal Register (68 FR 
56804) a proposal to amend Sec. Sec.  191.3, 191.51 and 191.171 to 
reflect that the Texport Oil decision is applicable, in limited 
circumstances, to drawback based on substitution of finished petroleum 
derivatives.
    Comments were solicited on the proposal.

Discussion of Comment

    One comment was received in response to the solicitation of public 
comment in 68 FR 56804. The commenter supported CBP's proposal to 
reflect the Texport Oil court decision in part 191 of the CBP 
Regulations as regards drawback based on substitution of finished 
petroleum derivatives. The commenter noted that the proposed amendments 
contribute to the goal of offsetting the cost of raw materials.

Conclusion

    After review of the one comment received, and upon consideration, 
CBP has decided to adopt as final the proposed rule published in the 
Federal Register (68 FR 56804) on October 2, 2003.

The Regulatory Flexibility Act and Executive Order 12866

    Because these regulations serve to conform the CBP Regulations to 
reflect the full scope of a recent decision by the Court of Appeals for 
the Federal Circuit whereby, in limited circumstances, merchandise 
processing fees are eligible to be claimed as drawback, it is certified 
pursuant to the provisions of the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq. that this amendment will not have a significant impact on a 
substantial number of small entities. Further, this amendment does not 
meet the criteria for a ``significant regulatory action'' as specified 
in Executive Order 12866.

Signing Authority

    This document is being issued in accordance with 19 CFR 0.1(a)(1).

Drafting Information

    The principal author of this document was Ms. Suzanne Kingsbury,

[[Page 60083]]

Regulations Branch, Office of Regulations and Rulings, U.S. Customs and 
Border Protection. However, personnel from other offices participated 
in its development.

List of Subjects in 19 CFR Part 191

    Claims, Commerce, CBP duties and inspection, Drawback.

Amendments to the Regulations

0
For the reasons stated above, part 191 of the CBP Regulations (19 CFR 
part 191) is amended as follows:

PART 191 -- DRAWBACK

0
1. The general authority citation for part 191 continues to read as 
follows:


    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 23, 
Harmonized Tariff Schedule of the United States), 1313, 1624.


0
2. Section 191.3(a)(4) and (b)(2) are revised as follows:


Sec.  191.3  Duties and fees subject or not subject to drawback.

    (a) Duties and fees subject to drawback include:
* * * * *
    (4) Merchandise processing fees (see Sec.  24.23 of this chapter) 
for unused merchandise drawback pursuant to 19 U.S.C. 1313(j), and 
drawback for substitution of finished petroleum derivatives pursuant to 
19 U.S.C. 1313(p)(2)(A)(iii) or (iv).
    (b) * * *
    (2) Merchandise processing fees (see Sec.  24.23 of this chapter), 
except where unused merchandise drawback pursuant to 19 U.S.C. 1313(j) 
or drawback for substitution of finished petroleum derivatives pursuant 
to 19 U.S.C. 1313(p)(2)(A)(iii) or (iv) is claimed; and
* * * * *

0
3. In Sec.  191.51, paragraph (b)(2) introductory text is revised to 
read as follows:


Sec.  191.51  Completion of drawback claims.

* * * * *
    (b) * * *
    (2) Merchandise processing fee apportionment calculation. Where a 
drawback claimant seeks unused merchandise drawback pursuant to 19 
U.S.C. 1313(j), or drawback for substitution of finished petroleum 
derivatives pursuant to 19 U.S.C. 1313(p)(2)(A)(iii) or (iv), for a 
merchandise processing fee paid pursuant to 19 U.S.C. 58c(a)(9)(A), the 
claimant is required to correctly apportion the fee to that merchandise 
that provides the basis for drawback when calculating the amount of 
drawback requested on the drawback entry. This is determined as 
follows:
* * * * *

0
4. In Sec.  191.171, a new paragraph (c) is added to read as follows:


Sec.  191.171  General; drawback allowance.

* * * * *
    (c) Merchandise processing fees. In cases where the requirements of 
paragraph (b)(1) of this section have been met, merchandise processing 
fees will be eligible for drawback.

    Approved: October 4, 2004.
Robert C. Bonner,
Commissioner, U.S. Customs and Border Protection.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 04-22599 Filed 10-6-04; 8:45 am]
BILLING CODE 4820-02-P