DRA-1-06-CO:R:C:E 224107 SLR

Deputy Regional Director
Commercial Operations
Pacific Region
U.S. Customs Service
One World Trade Center, Ste. 705
Long Beach, CA 90831-0700

RE: Application for Further Review of Protest No. 2809-91-101693; Request to Amend Original Drawback Claims; Request Made Beyond Three Years of Exportation of Drawback Article; 19 CFR 191.61; 19 CFR 191.64

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have reviewed the facts and the issues presented, and our decision follows.


During the first quarter of 1990, the protestant, Silgan Containers Corporation (hereinafter "Silgan"), submitted claims for drawback under the accelerated payment provision of the drawback regulations. Liquidation of the accelerated drawback entries was suspended by Customs upon the referral of Silgan unliquidated drawback entries to Customs Regulatory Audit Division for verification. The audit was announced March 30, 1990.

On April 22, 1991, the audit commenced at Silgan's factory in Riverbank, California. A Customs auditor reviewed the records in support of the claimed drawback entries and, at the exit conference, related that generally Silgan's drawback claims could be verified by the records provided except for certain import entries delivered to one of Siligan's factories. In the auditor's opinion, the records provided for the said import entries were not sufficient to support receipt and manufacture of the imported material. More specifically, the audit found the following:


* Unable to Support Audit Drawback Entry Date : 8-17-90 Exportations Occurred: 3-1-88 to 4-30-88 Import Date : 4-17-85 5-25-85 1-18-86 * Drawback Entry Date : 4-13-90 Exportations Occurred: 9-1-87 to 12-30-87 Import Date : 1-18-86 * 2-15-85 * 1-15-85 * Drawback Entry Date : 2-9-90 Exportations Occurred: 7-1-87 to 9-30-87 Import Date : 1-18-86 * 1-18-86 * 1-15-85 * 2-15-85 * Drawback Entry Date : 7-20-90 Exportations Occurred: 11-1-87 to 12-31-87 Import Date : 1-18-86 * 1-18-86 * 1-15-85 * 3-9-85 Drawback Entry Date : 2-9-90 Exportations Occurred: 7-1-87 to 9-30-87 Import Date : 1-18-86 * 1-18-86 * 1-15-85 * 4-17-85 6-23-86 2-15-85 * 1-15-85 *

Accordingly, the Customs auditor recommended partial denial of the drawback entries which contained the deficient imports. The subject drawback entries were liquidated on July 19, 1991, based upon the audit findings of May 28, 1991.

Subsequent to liquidation, Silgan asked Customs if it could amend the subject claims with imports that were encompassed and verified in the audit, yet still had unused portions available to claim. The Customs liquidator was willing to accept the amendments provided all Customs regulatory requirements had been met.


The amended import designations were submitted to Customs on September 16, 1991. Subsequent to their submission, Customs rejected the amendments due to the fact that more than 3 years had passed since the date of exportation of the articles on which drawback was being claimed and, therefore, their acceptance would contradict 19 CFR 191.61.

A timely protest was filed on October 17, 1991, against the liquidation and subsequent rejection of the amended designations by the Pacific Region Liquidation Branch. The protestant claims that it complied with 19 CFR 191.61 when the drawback entries were initially submitted for accelerated payment with all documents necessary to complete the drawback claim. The protestant maintains that 19 CFR 191.61 does not specifically prohibit the amendment or correction of drawback claims encompassing exports older than three years, and that it has been Customs practice to accept these amendments provided the original claims were timely filed.


Whether the protestant may amend a claim for drawback after more than three years have expired after exportation.


The proper completion of a drawback claim is provided for in 19 CFR 191.61, which states as follows:

A drawback entry and all documents necessary to complete a drawback claim, including those issued by one Customs officer to another, shall be filed or applied for, as applicable, within 3 years after the date of exportation of the articles on which drawback is claimed,... Claims not completed within the 3 year period shall be considered abandoned. No extension will be granted unless it is established that a Customs officer was responsible for the untimely filing.

A complete drawback entry consists of (1) the filing of the appropriate drawback entry form completely filled out with all necessary information required on the form; (2) proof of exportation (i.e., the "Notices of Exportation of Articles with the Benefit of Drawback" (CF 7511)) and its supporting documents; and (3) certificate(s) of delivery, when necessary, or certificate(s) of manufacture and delivery. T.D. 83-212; 19 CFR 191.2(i) and 191.62.


Customs May 28, 1991, audit report was able to verify the existence of several completed claims (i.e., for the drawback entry dated 8-17-90, import entries 4-17-85 and 5-25-85; for the drawback entry dated 7-20-90, import entry 3-9-85; for the drawback entry dated 2-9-90, import entries 4-17-85 and 6-23-86). Silgan wishes to amend its original drawback claims to include the unused portions of these verified import entries. More than 3 years have passed since the exportation of the articles on which drawback is being claimed.

Supplementary filing of drawback claims is provided for in 19 CFR 191.64 as follows: "With the permission of the regional commissioner, a claimant may amend or correct a drawback entry or file a timely supplemental entry. Corrections shall be certified by the appropriate parties." Section 191.64, however, does not provide an extension of time beyond the three years allowed in Section 191.61. Section 191.61 provides that a drawback entry must be complete within 3 years after the date of exportation of the articles on which drawback is claimed. Corrections which only perfect a drawback claim may be permitted after the 3-year period provided for in 19 CFR 191.61. However, a claim may not be amended by expanding the scope of the claim after the expiration of the 3-year period. For example, proof that merchandise met same-kind-and-quality specifications could be provided after the 3-year period, but entries or exportations not included in the original claim may not be added after the 3-year period. Substitution of different imported merchandise or different exported merchandise by designating different import entries or exports creates a new claim for drawback in the same manner that a protest against the liquidation of one entry does not cover a protest against some other liquidation.

In proposing the instant amendment, the protestant is attempting to designate different import entries than those originally designated as the basis for the claim to drawback (e.g., for drawback entry 2-9-90, designating the unused portions of import entry 3-9-85 of drawback entry 7-20-90; for drawback entry 4-13-90, designating the unused portions of import entries 4-17-85 and 5-25-85 of drawback entry 8-17-90). As previously indicated, however, entries not included in the original claim may not be added after the 3-year period.

The 3-year period exists so Customs can audit and verify claims. Here, certain imports entries were verified but only to the extent amounts from those entries had been designated.


Customs current policy of restricting the amendment of drawback claims after the 3-year exportation period is consistent with the regulatory history on this subject. In T.D. 53025, Customs, in amending section 22 of the Customs Regulations of 1943 (which provided for a 2-year period for completing drawback claims with extensions authorized by the Bureau), explained that: "Some difficulty has been experienced in attempting to fix a uniform standard as a basis for granting extensions, and it has been concluded that extensions should not be permitted but that a longer period of time (3 years) should be allowed for the filing and completion of claims."


When more than 3 years have passed after the exportation upon which drawback is being claimed, the protestant may not amend its original drawback claims to include different import entries than those originally claimed as the basis for drawback. Accordingly, this protest should be denied. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.


John Durant, Director
Commercial Rulings Division