Shell Oil Co. v. United States , 688 F.3d 1376 ( 2012 )


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  •   United States Court of Appeals
    for the Federal Circuit
    __________________________
    SHELL OIL COMPANY (C/O GULF COAST
    DRAWBACK SERVICES, INC.),
    Plaintiff-Appellant,
    v.
    UNITED STATES,
    Defendant-Appellee,
    __________________________
    2011-1531
    __________________________
    Appeal from the United States Court of International
    Trade in Case No. 08-CV-0109, Judge Delissa A. Ridgway.
    ___________________________
    Decided: August 14, 2012
    ___________________________
    GEORGE M. CLARKE, III, Miller & Chevalier Char-
    tered, of Washington, DC, argued for plaintiff-appellant.
    With him on the brief were DANIEL P. WENDT and MARY
    W. PROSSER. Of counsel on the brief was PETER A. LOWY,
    Shell Oil Company, of Houston, Texas.
    TARA K. HOGAN, Trial Attorney, Commercial Litiga-
    tion Branch, Civil Division, United States Department of
    Justice, of Washington, DC, argued for defendant-
    appellee. With her on the brief were TONY WEST, Assis-
    tant Attorney General, JEANNE E. DAVIDSON, Director,
    SHELL OIL COMPANY   v. US                               2
    and TODD M. HUGHES, Deputy Director. Of counsel on the
    brief was RICHARD MCMANUS, Office of the Chief Counsel,
    Customs and Border Protection, United States Depart-
    ment of Homeland Security, of Washington, DC.
    __________________________
    Before PROST, MOORE, and WALLACH, Circuit Judges.
    WALLACH, Circuit Judge.
    Plaintiff-Appellant Shell Oil Company (“Shell”) ap-
    peals the decision of the Court of International Trade
    (“CIT”) holding that Shell’s drawback claims for Harbor
    Maintenance Tax (“HMT”) and Environmental Tax (“ET”)
    were time barred because the requests for drawback were
    not made within three years of exporting substitute
    finished petroleum derivatives as required by 
    19 U.S.C. § 1313
    (r)(1) (the “drawback statute”). See Shell Oil Co. v.
    United States, 
    781 F. Supp. 2d 1313
    , 1339-40 (Ct. Int’l
    Trade 2011). Because we find that Shell failed to file
    timely the HMT and ET drawback claims at issue, we
    affirm.
    I.     BACKGROUND
    A. Shell’s Imports and the Drawback Statute
    Between 1993 and 1994, Shell imported certain petro-
    leum products (“imports at issue”) upon which custom
    duties, taxes, and other fees were paid. 1 During the same
    1
    The taxes and other fees paid included HMT
    and ET. HMT is a tax on port use imposed pursuant to
    the Water Resources Development Act of 1986, and ET is
    a tax imposed on crude oil received at a United States
    refinery and on petroleum products that enter into the
    United States for consumption, use, or warehousing.
    Shell Oil Co., 
    781 F. Supp. 2d at
    1316 n.3. Notably, in
    1998, after a decade of enforcement, the Supreme Court
    held HMT unconstitutional as applied to exports because
    3                                   SHELL OIL COMPANY   v. US
    period, Shell exported drawback 2 -eligible substitute
    finished petroleum derivatives. Subsequently, between
    January 1995 and August 1996, Gulf Coast Drawback
    Services, Inc., a customs broker to which Shell outsourced
    its drawback claim services, filed numerous substitution
    drawback claims with the U.S. Customs and Border
    Protection (“Customs”) on Shell’s behalf. 3
    In general, under the current statute, 4 Customs is re-
    quired to provide a drawback of 99% of “any duty, tax, or
    fee imposed under Federal law upon entry or importation”
    of imported merchandise if that merchandise (or a “com-
    mercially interchangeable” substitute) is subsequently
    “exported, or . . . destroyed under customs supervision;
    and . . . is not used within the United States before such
    exportation or destruction . . . .” 
    19 U.S.C. §§ 1313
    (j),(p).
    The statute requires all drawback claims to be filed
    within three years of the date of exportation of the substi-
    tute merchandise, and claims that are not completed
    the tax violated the Export Clause of the U.S. Constitu-
    tion. United States v. U.S. Shoe Corp., 
    523 U.S. 360
    , 363
    (1998).
    2
    A drawback is defined as “the refund or re-
    mission, in whole or in part, of a customs duty, fee or
    internal revenue tax which was imposed on imported
    merchandise under Federal law because of its importation
    . . . .” 
    19 C.F.R. § 191.2
    (i).
    3
    This action involves seven claims and one par-
    tial claim for non-manufacturing substitution drawback
    associated with the imports at issue. Shell Oil Co., 
    781 F. Supp. 2d at 1316
    .
    4
    The relevant language in the current draw-
    back statute and its 1994 version, which applies in this
    case, are substantially the same unless otherwise indi-
    cated.
    SHELL OIL COMPANY   v. US                                 4
    within the three-year period are “considered abandoned.”
    
    Id.
     § 1313(r)(1). A complete drawback claim consists of
    “[a] drawback entry and all documents necessary . . . .”
    Id. During the time of Shell’s imports, drawback eligibil-
    ity of HMT and ET payments, which Shell now seeks,
    were heavily disputed. See Aectra Refining & Mktg., Inc.
    v. U.S., 
    565 F.3d 1364
    , 1367 (Fed. Cir. 2009) (“Aectra”)
    (“[Importer] admits that it was aware that Customs’s
    position regarding the recoverability of . . . [Merchandise
    Processing Fee (“MPF”)] and HMT was being actively
    challenged in 1997 and 1998.”) (citations omitted).
    B. The 1999 Amendments
    In 1999, Congress amended the relevant language of
    the drawback statute (the “1999 amendments”) clarifying
    the scope of drawback available to include “any duty, tax,
    or fee imposed under Federal law because of . . . importa-
    tion” in addition to customs duties.        
    19 U.S.C. §§ 1313
    (j),(p) (2000). To effectuate its newly clarified scope,
    the 1999 amendments suspended the 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. 1999 Trade Act,
    Pub. L. No. 106–36, § 2420(e), 
    113 Stat. 127
    , 179 (1999)
    (emphasis added). 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.” Aectra, 
    565 F.3d at 1370-71
     (emphasis added). As a result, importers
    were authorized to file stale drawback claims of “any
    duty, tax, or fee imposed under Federal law” paid on
    imported merchandise “because of its importation” be-
    tween June 25, 1999 and December 25, 1999. See 
    19 U.S.C. § 1313
    (j) (2000).
    5                                   SHELL OIL COMPANY   v. US
    C. The 2004 Amendments
    Congress further amended the drawback statute after
    this court’s decision in Texport Oil Co. v. United States,
    
    185 F.3d 1291
     (Fed. Cir. 1999) (“Texport”). In Texport, we
    interpreted the drawback statute’s “because of . . . impor-
    tation” language to preclude the payment of drawback on
    any “duty, tax, or fee that is assessed in a nondiscrimina-
    tory fashion against all shipments . . . .” 
    Id. at 1295-97
    .
    Accordingly, we held MPF to be eligible for drawback
    because MPF “is explicitly linked to import activities.” 
    Id. at 1296
    . In addition, reasoning that HMT is “assessed in
    a nondiscriminatory fashion against all shipments utiliz-
    ing ports,” we held HMT to be ineligible for drawback. 
    Id.
    In a separate decision, we also held ET to be ineligible for
    drawback for similar reasons. George E. Warren Corp. v.
    United States, 
    341 F.3d 1348
    , 1356 (Fed. Cir. 2003)
    (“Warren”).
    Responding to these decisions, in December 2004,
    Congress amended the drawback statute (the “2004
    amendments”).       Miscellaneous Trade and Technical
    Corrections Act of 2004, Pub. L. No. 108–429, § 1557(b),
    
    118 Stat. 2434
    , 2579 (2004). Congress made clear its
    intent to overturn Texport and eliminate the distinction
    between taxes and fees that discriminate against imports
    and those that do not. See S. Rep. No. 108-28, at 173
    (2003). The 2004 amendments thus clarified eligibility of
    certain drawback claims, and thereafter, allowed draw-
    back for any duty, tax, and fee imposed upon entry. 
    Id.
     §
    1557(b), 118 Stat. at 2579. In particular, the 2004
    amendments applied only to any “drawback 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.” Id.
    As such, unlike the 1999 amendments’ six-month grace
    SHELL OIL COMPANY   v. US                                   6
    period, the three-year limit on filing drawback claims was
    left undisturbed. Aectra, 
    565 F.3d at 1370
    .
    D. This Court’s Decision in Aectra
    In 2009, this court issued its opinion in Aectra, which
    dealt with issues similar to this case. Like Shell, the
    importer in Aectra timely filed drawback claims of its
    import duties without any reference to taxes or fees,
    within three years of its export of substitute petroleum
    derivatives. 
    565 F.3d at 1367
    . After Customs liquidated
    the importer’s drawback entries and refunded the re-
    quested import duties in full, the importer filed protests
    and for the first time sought drawback of taxes and fees
    more than three years after the date of exportation. 
    Id. at 1368
    . Customs denied the importer’s protests and the
    importer contested the denial at the CIT, where the
    importer’s arguments were rejected and Customs’s deni-
    als of the protests sustained. 
    Id.
    This court affirmed, noting that the importer offered
    “no explanation for why it did not include protective
    claims for [taxes and fees] in its . . . drawback claims
    other than its belief that such claims would not be suc-
    cessful at the administrative level.” 
    Id. at 1367
    . We
    ultimately held that the importer was not entitled to
    relief because it failed to claim drawback of taxes and fees
    within the statutory three-year period within which all
    drawback claims must be filed. 
    Id. at 1375
    .
    E. Procedural History of This Case
    Shell filed drawback claims associated with the im-
    ports at issue in 1995 and 1996. These claims sought
    drawback only as to the import duties that Shell had paid.
    Specifically, as the CIT found, “each ‘Drawback Entry’
    form (Customs Form 7539) that Shell filed with Customs
    required Shell to state its ‘net claim’ specifying the precise
    7                                   SHELL OIL COMPANY   v. US
    sum that it sought.” Shell Oil Co., 
    781 F. Supp. 2d at 1318
    . Shell was found not to have included an express
    request for HMT and ET in the “net claim” figure that
    Shell provided on each of the drawback entry forms that it
    filed with Customs. 
    Id.
     Based on these representations
    on the forms, Customs refunded 99% of the import duties
    as requested. 
    Id.
    After the statutory three-year period for the filing of
    drawback claims had expired, on November 7, 1997, Shell
    filed protests with Customs, seeking drawback as to HMT
    and ET payments that Shell had made in connection with
    the imports at issue. 
    Id.
     Customs denied Shell’s protests
    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. [HMT] . . . is an incidental
    expense incurred upon a vessel entering a harbor.
    The HMT is not incurred as a result of the impor-
    tation 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 En-
    gineers.
    Protest No. 5301–97–100421 (Dec. 3, 1997).
    On May 20, 1998, Shell filed a summons at the CIT
    contesting Customs’s denial of the HMT and ET drawback
    claims. The parties filed cross-motions for summary
    judgment, and on June 20, 2011, the CIT held that Shell’s
    claims for drawback of HMT and ET were time barred.
    See Shell Oil Co., 
    781 F. Supp. 2d at 1339-40
    . The CIT
    found that the amendments to the drawback statute did
    not aid Shell and futility did not toll the statutory time
    period. Shell appeals the CIT’s decision. We have juris-
    diction pursuant to 
    28 U.S.C. § 1295
    (a)(5).
    SHELL OIL COMPANY   v. US                                 8
    II. DISCUSSION
    This court reviews a grant of summary judgment by
    the CIT “for correctness as a matter of law, deciding de
    novo the proper interpretation of the governing statute
    and regulations as well as whether genuine issues of
    material fact exist.” BMW Mfg. Corp. v. United States,
    
    241 F.3d 1357
    , 1360 (Fed. Cir. 2001) (quoting Texaco
    Marine Servs., Inc. v. United States, 
    44 F.3d 1539
    , 1543
    (Fed. Cir. 1994) (internal citation omitted)). Where the
    facts are undisputed, application of the appropriate legal
    standard to those facts is properly a question of law that
    we review de novo. Former Emp. of Sonoco Prods. Co. v.
    Chao, 
    372 F.3d 1291
    , 1295 (Fed. Cir. 2004). When Con-
    gress has not directly addressed the precise question of
    statutory interpretation at issue, we give deference to
    Customs’s regulations interpreting portions of a statute
    that are silent or ambiguous as to that issue. United
    States v. Haggar Apparel Co., 
    526 U.S. 380
    , 392 (1999)
    (citing Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council,
    Inc., 
    467 U.S. 837
    , 842-43 (1984)).
    Shell’s drawback claims for HMT and ET are not
    timely. The pertinent facts in this case are undisputed.
    Shell initially filed timely drawback claims for a refund of
    its import duties only. Customs paid Shell’s drawback
    claims in full, refunding 99% of the import duties as
    requested. More than three years after its export of
    substitute petroleum derivatives, Shell filed protests with
    Customs, for the first time, seeking drawback on its HMT
    and ET payments.
    Shell nevertheless avers that the HMT and ET draw-
    back claims were timely under the 1999 and 2004
    amendments. Appellee, the United States, (“Govern-
    ment”) responds, arguing that Shell raises many of the
    same defenses we rejected in Aectra. The gravamen of the
    9                                  SHELL OIL COMPANY   v. US
    Government’s contention is that Shell’s HMT and ET
    drawback claims were filed outside the three-year statu-
    tory window, and therefore, abandoned. As a result, the
    sole inquiry in this case concerns the propriety of Shell’s
    seemingly stale drawback claims as to HMT and ET
    under 
    19 U.S.C. § 1313
    .
    As an initial matter, drawbacks are a privilege, not a
    right. United States v. Allen, 
    163 U.S. 499
    , 504 (1896);
    see Swan & Finch Co. v. United States, 
    190 U.S. 143
    , 146
    (1903) (“Being a governmental grant of a privilege or
    benefit it is to be construed in favor of the government
    and against the party claiming the grant.”). Drawbacks
    “do not compensate for duty overpayments, but instead
    help enforce the United States’ policy of ‘encourag[ing]
    domestic manufacture of articles for export and . . . al-
    low[ing] those articles to compete fairly in the world
    marketplace.’” Hartog Foods Int’l, Inc. v. United States,
    
    291 F.3d 789
    , 793 (Fed. Cir. 2002) (brackets in original)
    (citations omitted). As such, the burden is on the party
    seeking drawback to show that an amount certain is
    eligible for refund. Placing the burden on Customs to
    determine the maximum permissible amount for refund
    in a drawback claim would “create an untenable adminis-
    trative burden for Customs in its processing of drawback
    claims.” Aectra, 
    565 F.3d at 1373
     (citation omitted). In
    addition, “allowing claimants to submit claims piecemeal
    after the three-year completion window has passed would
    detract from the ability of Customs to ‘effectively carry
    out its duties,’ including preventing circumvention of the
    three-year statutory limit of 
    19 U.S.C. § 1313
    (r)(1).” 
    Id.
    (internal citation omitted). With this backdrop, we exam-
    ine Shell’s contentions.
    Shell first contends that its drawback claims were
    timely under the 1999 amendments’ six-month re-opened
    period of limitations because Shell was not required to
    SHELL OIL COMPANY   v. US                                10
    resubmit a drawback claim during that six-month window
    when Customs had already rejected the claims at issue on
    the merits. This court in Aectra observed that the 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.” 
    Id. at 1370
    . Like the
    CIT, we hold that the plain language of the 1999 amend-
    ments requiring “a drawback claim [be] filed within 6
    months after the date of the enactment of those amend-
    ments[,] refutes any suggestion that Shell’s untimely,
    previously-filed and denied protests sufficed to protect
    whatever rights to drawback of HMT and ET” that Shell
    may have had. Shell Oil Co., 
    781 F. Supp. 2d at 1331
    (quotation omitted). The undisputed fact remains that
    Shell failed to raise issues of drawback related to HMT
    and ET within the three-year statutory window, and
    those claims were not filed after the enactment and dur-
    ing the grace period of the 1999 amendments. 5
    Shell also argues that re-filing its HMT and ET draw-
    back claims would have been futile because Customs had
    a policy of denying drawback claims for HMT and ET.
    Shell’s futility argument and its reliance on Warren are
    unpersuasive. To begin, “futility does not excuse the
    failure to file a proper claim for limitations purposes”
    because a “claimant is generally required to file a com-
    plete and specific claim within the limitations period,
    even if the government authority to [which] the claim is
    5
    Shell attempts to distinguish this case from
    our decision in Aectra by arguing that, unlike the im-
    porter in Aectra, Shell’s claims and protests were filed and
    denied on the merits prior to the 1999 amendments.
    However, this distinction is without consequence. As
    discussed, the 1999 amendments required claims to be
    filed or re-filed after the enactment of the amendments.
    It is undisputed that no such filing was undertaken in
    this case.
    11                                 SHELL OIL COMPANY   v. US
    presented is certain to dispute the validity of the claim.”
    Aectra, 
    565 F.3d at 1373
    . Indeed, Shell does not deny
    that the “issue of the recoverability of drawback on taxes
    and fees such as HMT and ET already had been percolat-
    ing within the industry and the customs and interna-
    tional trade community for some time.” Shell Oil Co., 
    781 F. Supp. 2d at 1327
    . As the CIT recognized, “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” in this case. 
    Id.
    Warren does not imply otherwise. See 
    341 F.3d at 1356
    . In that case, the importer paid duties, HMT, and
    ET on imported petroleum, and later exported drawback-
    eligible substitute merchandise. 
    Id. at 1349
    . Like Shell,
    the importer timely submitted drawback claims for im-
    port duties, and failed to include in those claims an ex-
    press request for HMT or ET. 
    Id. at 1349-50
    . Shortly
    thereafter and unlike the facts in this case, the importer
    in Warren filed a protest seeking drawback of HMT and
    ET within three years of the date of export. 
    Id. at 1349
    (emphasis added). Customs denied the protest on the
    merits. 
    Id.
     Addressing the specific inquiry of whether the
    CIT had jurisdiction over the denial of the importer’s
    protest, we held that the CIT properly exercised jurisdic-
    tion despite the fact that the HMT and ET requests were
    first made by protest. 
    Id. at 1351
    . In particular, we
    found that the importer was not required to engage in the
    futile exercise of re-filing new claims for HMT and ET in
    light of Customs’s previous denial of recovery of those
    taxes because 
    28 U.S.C. § 1581
    (a) (2000) required only a
    “denial of a protest” for jurisdictional purposes. 
    Id.
    Accordingly, as we observed in Aectra, Warren “rested
    on jurisdictional grounds inapplicable here and conse-
    quently it was unnecessary for the Warren court to ad-
    SHELL OIL COMPANY   v. US                               12
    dress the effect of § 1313(r)(1) [which imposed the three-
    year limitations period] on those refund requests.” Aec-
    tra, 
    565 F.3d at 1374
     (brackets in original) (internal
    quotation omitted). Moreover, in Warren, the importer
    filed its drawback claims as to HMT and ET within the
    three-year statute of limitations, and therefore, that case
    does not suggest that a party may, by arguing futility, be
    excused from the statutory time period. Hence, because
    Shell failed to act during the six-month grace period, the
    1999 amendments are inapplicable in this case.
    Next, Shell argues that given the legal framework
    that existed over the course of the underlying dispute,
    Shell substantially complied with the steps necessary to
    claim timely drawback for the HMT and ET payments.
    Specifically, Shell contends that the then-existing regula-
    tion did not require “correct calculation” of the amount of
    drawback due as part of a complete drawback claim.
    Because no such explicit drawback claims were required,
    Shell argues that it substantially complied with the then-
    existing regulations by raising the underlying circum-
    stances to support drawback for HMT and ET. As the
    CIT found, however, changes to the applicable regulation
    do not negate the fact that Shell failed to make or pre-
    serve any claim for HMT or ET within the three-year
    statutory window. See Shell Oil Co., 781 F. Supp. 2d. at
    1326.
    Shell did not indicate that it wished to seek drawback
    of HMT and ET until its protests, which were filed outside
    the mandatory statutory three-year window. Shell’s
    argument seems to be that its timely filed claims for
    drawback of import duties somehow implicitly included
    claims for drawback of HMT and ET. Such a position is
    not viable because Customs was not on notice of any
    claims for HMT or ET within the statutory period. Al-
    though Shell contends that Customs had notice, merely
    13                                  SHELL OIL COMPANY   v. US
    setting forth a claim for drawback of import duties does
    not sufficiently make or preserve a claim for taxes and
    fees like HMT and ET.
    In particular, Shell contends that the regulation in ex-
    istence at the time of Shell’s claims did not require an
    express request for HMT or ET, as did the 1998 regula-
    tions we analyzed in Aectra. See Aectra, 
    565 F.3d at 1372
    (interpreting the “correctly calculate” requirement recited
    in the 1998 regulation, 
    19 C.F.R. § 191.51
    (b) (1998), to
    mean that a claimant must include an accurate calcula-
    tion of the entire amount that it seeks to be refunded
    under the drawback statute). Shell, thus, argues that its
    omission of the HMT and ET payments was not fatal and
    that Aectra’s discussion as to this issue need not apply.
    Nevertheless, the fact that certain regulations were in
    flux at the time the claims were filed does not excuse
    Shell’s nonfeasance.
    Moreover, Shell fails to recognize that it sought accel-
    erated payment of its drawback claims. See 
    19 C.F.R. § 191.72
     (1984). A drawback claimant seeking accelerated
    payment is required to include “a computation of the
    amount due.” See 
    id.
     As the CIT cogently noted, “to the
    extent that the pre-1998 regulations did not expressly
    require a correct calculation as part of a ‘complete’ draw-
    back claim, the same certainly cannot be said of a request
    for accelerated payment of drawback.” Shell Oil Co., 
    781 F. Supp. 2d at
    1325 n.15. Shell therefore had the respon-
    sibility of computing the total amount due as part of a
    complete drawback claim. There is no dispute that the
    total amount due as indicated in Shell’s original drawback
    claims did not include HMT and ET payments.
    Regardless, Shell’s focus on whether the pre-1998
    regulations lacked explicit requirements to list taxes and
    fees as part of the total amount is misplaced because, as
    SHELL OIL COMPANY   v. US                                 14
    discussed above, Customs does not bear the burden to
    determine the maximum permissible amount for a draw-
    back claim. Rather, it is on the claimant to place Customs
    on notice as to the specific amount it is seeking for a
    refund. As a result, Shell, at a minimum, was required to
    place Customs on notice that it was seeking drawback for
    HMT and ET. Because Shell sought accelerated payment,
    Shell had the additional responsibility of submitting “a
    computation of the amount due,” including payments for
    HMT and ET. Shell failed to provide such notice in this
    case. Hence, Shell’s contention that it substantially
    complied with the statute does not salvage its untimely
    claims. 6
    Lastly, Shell avers that it qualifies under the 2004
    amendments’ effective date provision, which deems timely
    any drawback entry filed before the date of enactment if
    the liquidation of the entry was not final on that date.
    Because the 2004 amendments allow any drawback claim
    that is not final to remain open, Shell argues that the
    amendment must apply to its drawback claims for HMT
    6
    To the extent Shell avers that the 1998 regu-
    lations created a requirement which did not exist previ-
    ously, we agree with the CIT and conclude that the 1998
    regulatory amendments merely clarified the requirements
    for what was already required for a proper drawback
    claim. Shell Oil. Co., 
    781 F. Supp. 2d at
    1326 n.15
    (“[E]ven before the 1998 regulatory amendments, one of
    the ‘documents necessary to complete a drawback claim’
    was a completed drawback entry form—Customs Form
    7539 . . . . That ‘drawback entry’ form required that an
    importer state its ‘net claim’ (that is, the monetary
    amount of drawback sought), and was required to be
    signed and certified by an authorized representative.
    Accordingly, even before the 1998 ‘clarify[ing]’ amend-
    ments to the regulations, an importer filing a ‘complete’
    drawback claim was obligated to state for Customs the
    ‘net claim’ that it sought, as a certain and specific sum.”).
    15                                SHELL OIL COMPANY   v. US
    and ET. The 2004 amendments applied only prospec-
    tively, and to “not yet finally liquidated [entries]” that
    “already included a timely protective request” for taxes
    and fees. Aectra, 
    565 F.3d at 1369-71
     (recognizing that
    the 2004 amendments were not intended to waive the
    normal three-year limit imposed by the drawback stat-
    ute). In this case, it is undisputed that Customs liqui-
    dated the drawback entry that Shell filed, which did not
    include a timely protective request for taxes and fees.
    The later protests as to HMT and ET, as discussed above,
    were not timely, and as a result, were not protected
    requests. Accordingly, the 2004 amendments do not apply
    in this case.
    III. CONCLUSION
    Shell’s drawback claims for HMT and ET are time
    barred, and the 1999 and 2004 amendments do not aid
    Shell in reviving those claims. Like the importer in
    Aectra, Shell’s failure to file protective claims for HMT
    and ET is fairly attributed to Shell’s inaction. Accord-
    ingly, we affirm the CIT’s decision sustaining Customs’s
    denial of Shell’s protests.
    AFFIRMED