                   IN THE SUPREME COURT OF TEXAS
                                           444444444444
                                             NO. 18-0664
                                           444444444444

                                   PRSI TRADING, LLC, PETITIONER,
                                                  v.


                              HARRIS COUNTY, TEXAS, RESPONDENT
               4444444444444444444444444444444444444444444444444444
                                  ON PETITION FOR REVIEW FROM THE
                           COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
               4444444444444444444444444444444444444444444444444444


                                       Argued December 5, 2019


       CHIEF JUSTICE HECHT delivered the opinion of the Court.

       JUSTICE BOYD and JUSTICE BLAND did not participate in the decision.


       The federal Foreign-Trade Zones Act of 19341 provides for the designation of duty-free areas

of operation in or near United States ports of entry. The Act exempts goods imported from outside

the United States and held within a zone for certain purposes from state and local ad valorem

taxation.2 The court of appeals held that the exemption did not apply to petitioner’s imported crude




       1
           19 U.S.C. §§ 81a–81u.
       2
           Id. § 81o(e).
oil and refinery products because the zone involved was not activated at the time.3 We disagree and

therefore reverse the judgment of the court of appeals and render judgment for petitioner.

                                                           I

         Foreign-trade zones (FTZs) are located in the United States, but goods imported into the

zones are not subject to tariffs or duties until they leave.4 Goods in FTZs may be processed and

incorporated into finished products bearing lower tariffs than the original goods. Postponing the

imposition of tariffs often results in a lower finished-good cost, thus encouraging manufacturing in

the United States instead of abroad.5

         The Act authorizes a Board to create FTZs.6 Customs and Border Protection supervises the

operation of the FTZs the Board creates.7 The Board may also create subzones—limited-purpose

zones established outside the confines of existing FTZs that enjoy the same status and benefits as

general-purpose zones.8




         3
             579 S.W.3d 77, 84–85 (Tex. App.—Houston [1st Dist.] 2017).
         4
         See 15 C.F.R. § 400.1(c); see also U.S. CUSTOMS AND BORDER PROT., DEP’T OF HOMELAND SEC., PUB. NO.
0000-0559A, FOREIGN-TRADE ZONES MANUAL § 1.1 (2011) [hereinafter FTZM].
         5
           See Scott H. Segal & Stephen J. Orava, Playing the Zone and Controlling the Board: The Emerging
Jurisdictional Consensus and the Court of International Trade, 44 AM. UNIV. L. REV. 2393, 2402–2404 (1995); About
Foreign-Trade Zones, U.S. CUSTOMS AND BORDER PROTECTION, https://www.cbp.gov/border-security/ports-entry/cargo-
security/cargo-control/foreign-trade-zones/about (last visited Feb. 18, 2020).
         6
             19 U.S.C. §§ 81a(b), 81b(a).
         7
             FTZM § 1.1.
         8
           15 C.F.R. § 400.3(a)(2). Subzones are usually private plant sites authorized by the Board for operations that
cannot be accommodated within an existing general-purpose FTZ. About Foreign-Trade Zones, U.S. CUSTOMS AND
BORDER PROTECTION, https://www.cbp.gov/border-security/ports-entry/cargo-security/cargo-control/foreign-trade-zones/
about (last visited Feb. 18, 2020).

                                                           2
          Putting an FTZ into operation is a two-stage process. The Board first approves a grantee to

establish, operate, and maintain the zone.9 Customs then must vet and approve an operator and

activate the zone to allow goods to be admitted with zone status.10 Importantly, zone benefits, such

as the ad valorem tax exemption, do not accrue until Customs activates the zone.11 Under the

regulations, activation requires approval of the zone’s grantee.12 The terms operator and activation

go hand in hand in the FTZ regulations; a party only operates an activated zone and an activated

zone must have an operator.13

          In 1995, the Board approved the Port of Houston Authority as grantee of Subzone 84-N,

which consists of a refinery and connected facilities in Pasadena, Texas that are used to store

imported crude oil and refined petroleum products. Customs activated Subzone 84-N with the

refinery’s original owner, Crown Central Petroleum Corporation, as operator. In 2004, Crown sold

the refinery to Pasadena Refining System, Inc., a Delaware corporation, which we will call

Pasadena-DE. The Port of Houston agreed for Pasadena-DE to replace Crown as operator of

Subzone 84-N, and Customs approved the change in February 2005.14


          9
              FTZM § 4.1.
          10
               Id.; see also 19 C.F.R. § 146.6 (setting forth the procedures for activation).
          11
               FTZM § 4.1 (“Only after the approval of activation will Users gain the benefits conferred under the FTZ
Act.”).
          12
           19 C.F.R. § 146.1(b) (“‘Activation’ means approval by the grantee and port director for operations and for
the admission and handling of merchandise in zone status.”).
          13
            See FTZM § 4.6 (“An FTZ may commence operations after approval by the Port Director of an application
to activate [pursuant to 19 C.F.R. § 146.6].”); id. § 4.7(a) (“An Operator . . . shall make written application to the local
Port Director to obtain approval for activation of an FTZ or FTZ site.”).
          14
               19 C.F.R. § 146.6(b)(5) (requiring written concurrence of the grantee when an operator applies for activation).

                                                                3
        Some 18 months later, in August 2006, Pasadena-DE merged into its parent, which in turn

simultaneously merged into its parent, a Connecticut corporation, which then changed its name to

Pasadena Refining System, Inc., the same as Pasadena-DE’s. We will refer to the new entity as

Pasadena. Pasadena applied to Customs for approval to become the new operator of Subzone

84-N,15 but by that time, the Port of Houston had changed its policy to withhold concurrence unless

Harris County did not object to the proposed operator’s application. Harris County would not

provide a letter of nonobjection to the Port unless Pasadena first agreed to waive its right to the FTZ

ad valorem tax exemption. Pasadena refused and instead changed positions, asserting in a statement

to Customs that it was not a new operator after all and therefore was not required to follow the

procedures in the FTZ regulations for activation of a zone, which require the Port’s agreement.16

        Pasadena continued operations in Subzone 84-N, just as Pasadena-DE had.17 The Appraisal

District continued the operation’s tax exemption. On September 21, 2009, Customs issued a letter

ruling that Pasadena-DE had ceased to exist in August 2006 as a result of the mergers, that Pasadena

was a new entity that had to apply for approval and activation, and that the Port’s concurrence was

required. Pasadena sought administrative review of the letter ruling and continued to press its case

with Customs that it should not be considered a new operator because it had succeeded to all of




        15
            Pasadena’s FTZ administrator, Jon Mattson, testified by affidavit that Pasadena applied to Customs for
reapproval out of an “abundance of caution” and because it believed approval would be “automatic” given its close
relation to Pasadena-DE.
        16
             19 C.F.R. § 146.6.
        17
           A sister entity, petitioner PRSI Trading, LLC, owned the crude oil imported into the zone and the products
refined from it. Our references to Pasadena include PRSI Trading unless the context indicates otherwise.

                                                         4
Pasadena-DE’s rights and privileges as a matter of state law.18 Over five years, from April 2008 to

April 2013, Customs issued 53 monthly letters giving Pasadena temporary authorization to operate

and move goods through Subzone 84-N with zone status. The Appraisal District continued the tax

exemption unchanged.

         Finally, in April 2013, Customs issued a second letter ruling reaffirming that Pasadena was

a new corporate entity and that it was therefore required to apply for approval to operate Subzone

84-N.19 In response, the Port of Houston, which still refused to concur in the application, requested

for the first time that Customs deactivate the zone. Customs began the process, which was completed

in August 2013. Pasadena removed its inventory, and the Appraisal District ceased to recognize the

tax exemption.

         Harris County petitioned the Harris County Appraisal Review Board for a determination that

Pasadena’s operations in Subzone 84-N had never been tax-exempt because Pasadena had never

qualified as the operator after the merger and that the County was owed taxes from 2011 through

2013.20 The Appraisal Review Board denied relief, and Harris County brought this action for judicial




         18
            Pasadena filed a request for reconsideration, arguing that it should not be considered a new operator because
(1) Pasadena-DE “continues to exist as part of” Pasadena; (2) Pasadena-DE’s rights and privileges vested in Pasadena
as a result of the mergers; and (3) Pasadena was operating identically to Pasadena-DE in all material respects.
         19
           See FTZM § 4.13(a) (“If the [operator] is a corporation and the change results in a new corporate entity, a
new application for activation shall be made under the procedures in 19 CFR 146.6”.). The 2009 and 2013 letter rulings
are in Appendix D to Petitioner’s Brief on the Merits.
         20
           Harris County sought relief under § 25.21 of the Texas Tax Code, which allows an appraisal district to add
personal property omitted from the appraisal roll for the two years preceding the challenge.

                                                           5
review.21 The trial court granted Pasadena’s and the Appraisal District’s summary judgment motions

and denied Harris County’s.

        The court of appeals reversed and rendered judgment in favor of Harris County.22 The court

concluded that “[w]ithout activation of Subzone 84-N pursuant to approval of a new operator,

[Pasadena’s] inventory could not have been properly admitted into the subzone, and, thus, was not

entitled to exemption from ad valorem taxation.”23 We granted Pasadena’s petition for review.

                                                        II

        The parties’ dispute can be distilled down to one question: Was Subzone 84-N activated

during the tax years at issue? If it was, all agree that the ad valorem tax exemption applies to

Pasadena’s inventory.

                                                        A

        Under the Act, “[t]angible personal property” that is “held in a zone” for certain enumerated

purposes “shall be exempt from State and local ad valorem taxation.”24 Though the Act does not

define “held in a zone”, it gives the Board and Customs authority to make rules governing the use




        21
          TEX. TAX CODE § 42.031(a) (“A taxing unit is entitled to appeal an order of the appraisal review board
determining a challenge by the taxing unit.”).
        22
             579 S.W.3d 77, 79 (Tex. App.—Houston [1st Dist.] 2017).
        23
             Id. at 85.
        24
           19 U.S.C. § 81o(e); see also TEX. TAX CODE § 11.12 (“Property exempt from ad valorem taxation by federal
law is exempt from taxation.”).

                                                        6
and operation of FTZs.25 These regulations, set out in the Code of Federal Regulations and

summarized in the FTZ Manual, comprise the scheme by which FTZs are governed.26

         The regulations are clear. Imported goods must be admitted into a zone to be entitled to the

tax exemption.27 Goods may only be admitted into a zone that has been activated.28 Activation, in

turn, requires approval by the grantee.29 Once Customs approves an operator’s application for

activation and accepts an executed bond, the zone is considered activated, goods can be admitted,

and the benefits conferred under the Act begin to flow.30 If another party later seeks to take over as

the operator of an existing zone, it must apply for approval of a new activation.31 An operator that

undergoes a change that results in a new corporate entity must also apply for approval of a new

activation.32



         25
              19 U.S.C. § 81h.
         26
             “The Foreign-Trade Zones Act is administered through two sets of regulations, the FTZ Regulations (15 CFR
Part 400) and [Customs] Regulations (19 CFR Part 146).” About Foreign-Trade Zones, U.S. CUSTOMS AND BORDER
PROTECTION, https://www.cbp.gov/border-security/ports-entry/cargo-security/cargo-control/foreign-trade-zones/about
(last visited Feb. 18, 2020). The FTZ Manual paraphrases the regulations “for the sake of simplicity and easier reading.”
FTZM at 2. In that spirit, our references to FTZ regulations include those in 15 C.F.R., 19 C.F.R., and the Manual.
         27
           15 C.F.R. § 400.1(c); see also 19 C.F.R. § 146.1(b) (“‘Admit’ means to bring merchandise into a zone with
zone status.”).
         28
           19 C.F.R. § 146.6(e) (“Upon the port director’s approval of the application and acceptance of the executed
bond, the zone or zone site will be considered activated; and merchandise may be admitted to the zone.”).
         29
              Id. § 146.1(b).
         30
              Id. § 146.6(e); FTZM § 4.1.
         31
              19 C.F.R. § 146.1(b) (“If the operator is different, it is an activation.”).
         32
            FTZM § 4.13(a) (“If the zone is a corporation and the change in ownership does not result in a new corporate
entity with a different corporate charter, the change will be treated as a name change as described in Section 4.13(b) . . . .
If the firm is a corporation and the change results in a new corporate entity, a new application for activation shall be
made under the procedures in 19 CFR 146.6 and Section 4.12 FTZM.”).

                                                                7
         The regulations explain the process for deactivating an FTZ. Deactivation is defined as the

“voluntary discontinuation of the activation of an entire zone or subzone by the grantee or

operator.”33 The grantee or operator must apply in writing to deactivate the zone, which Customs

will not do unless all merchandise has been removed from the zone at the risk and expense of the

operator.34 The operator must submit a blueprint of the exact site to be deactivated, and Customs

may require an accounting of all merchandise in the zone as a precondition to approving the

deactivation.35 Finally, deactivation stands in contrast to the regulations’ concept of suspension—an

action that Customs may impose on an operator for failing to follow its rules or orders.36

Deactivation represents a voluntary—and suspension an involuntary—discontinuation of a zone’s

activated status.

                                                             B

         Harris County reasons that Customs’ letter rulings establish that Pasadena-DE ceased to exist

as a result of the mergers in August 2006; that Subzone 84-N did not have an authorized operator

as of that time; that without an operator, no goods were properly admitted into the subzone; and that

Pasadena was therefore not tax-exempt. Pasadena counters that Customs’ letters indicate only that

new operator approval was required, not that Subzone 84-N was deactivated.



         33
              19 C.F.R. § 146.1(b).
         34
              Id. § 146.7(b).
         35
              Id.
         36
             Id. § 146.82(a) (“The port director may suspend for cause the activated status of a zone or zone site . . . .”);
see also FTZM § 13.8(a)(2) (Customs may suspend the activation of a zone if the operator “neglects or refuses to obey
any . . . order, rule, or regulation relating to the operation or administration of a zone”).

                                                             8
         Though Customs’ 2009 letter ruling required operator approval, its letters for several years

afterward treated Subzone 84-N as activated, deferring a final decision on deactivation through an

administrative process that did not conclude until April 2013. In the interim, Customs repeatedly

issued Pasadena monthly extensions to operate Subzone 84-N, allowed Pasadena’s inventory to enter

without paying duties, and supervised Pasadena’s activities.37 None of these activities are consistent

with deactivating Subzone 84-N. Customs both determined that Pasadena was a new operator

required to apply for approval and allowed Pasadena to operate Subzone 84-N for the review period

leading up to that determination.

         Harris County’s focus on the letter rulings ignores the bigger picture. After Pasadena-DE

became Pasadena, it both sought approval and, alternatively, argued that none was necessary.38 In

2009 and again in 2013, Customs advised Pasadena that new approval was required, but Customs

did not deny Pasadena’s application to continue its operation, took no action to stop Pasadena from

operating the refinery, continued to treat those operations as allowed by federal law, and did not

deactivate Subzone 84-N until August 2013. Until then, Pasadena continued to operate the refinery

as it always had. Pasadena’s inventory enjoyed the benefits of zone status that entire time. Under

the FTZ regulations, those benefits could not have continued unless 84-N was activated.39


         37
            Pasadena was audited twice, in March 2010 and July 2013, for compliance with the federal rules and
regulations governing Subzone 84-N.
         38
           See FTZM § 4.13(a) (distinguishing an operator’s mere name change from a change resulting in a new
corporate entity requiring the operator to submit a new application for activation).
         39
           See 15 C.F.R. § 400.1(c) (“To the extent zones are ‘activated’ . . . [they] are treated for purposes of the tariff
laws and customs entry procedures as being outside the customs territory of the United States.”); FTZM § 4.1 (Customs
must approve activation before merchandise may be admitted with zone status and enjoy benefits conferred under the
Act).

                                                             9
         Harris County argues that if Subzone 84-N remained activated, Customs would not have

required Pasadena to apply for approval of a new activation. But if Subzone 84-N was deactivated

by the 2006 mergers, Customs had no need to deactivate Subzone 84-N in August 2013. Harris

County points to the word voluntary in the definition of deactivation40 to suggest that the regulations,

by implication, contemplate the involuntary discontinuance of a zone’s activated status, which it

further contends happened here. But Customs did not deactivate Subzone 84-N—involuntarily or

otherwise—because it treated 84-N as uninterruptedly activated until August 2013. Before

merchandise may be admitted into a zone, or manufactured or processed once in a zone, certain

request forms must be submitted to and approved by Customs.41 Customs approved all of Pasadena’s

requests to admit crude oil with zone status and all of Pasadena’s requests to process the admitted

crude oil. In light of this evidence, we conclude that Customs never implicitly deactivated 84-N, as

Harris County contends.

         Harris County’s theory of implied involuntary deactivation also overlooks the concept of

suspension in the FTZ regulations—an express mechanism by which Customs can involuntarily

discontinue the activation of a zone. Customs may suspend the activated status of a zone if the

operator fails to comply with any “order, rule, or regulation relating to the operation or




         40
          19 C.F.R. § 146.1(b) (“‘Deactivation’ means voluntary discontinuation of the activation of an entire zone or
subzone by the grantee or operator.” (emphasis added)).
         41
            Id. § 146.32(a)(1) (“Merchandise may be admitted into a zone only upon application on a uniquely and
sequentially numbered [Customs] Form 214 . . . .”); id. § 146.52(a) (“Prior to any action, the operator shall file with the
port director an application . . . on Customs Form 216 for permission to manipulate, manufacture, exhibit, or destroy
merchandise in a zone.”).

                                                           10
administration of a zone”.42 Harris County argues that Pasadena failed to comply with the FTZ

regulations, but Customs indisputably never suspended operations in Subzone 84-N. We decline to

read into the regulations a third, unwritten method for discontinuing the activated status of FTZs.

         The formal procedures of deactivation and suspension serve the vital purpose of ensuring

that Customs maintains operational control and supervision of goods entering the United States.43

If deactivation could occur implicitly or informally, Customs could not keep clear records of which

areas are within the customs territory of the United States and which are exempt from duty

payments.44 Because the Port did not ask that 84-N be deactivated until August 2013, and Customs

never suspended it, 84-N remained activated during the challenged tax years.

         Section 4.12(a) of the FTZ Manual further supports this conclusion by directing that an

existing operator is to remain responsible for an activated zone until there is a new operator

approved or the zone is suspended or deactivated:

         Interim Responsibility of Existing Operator – The existing Operator remains
         responsible for merchandise in zone status and for compliance with the laws and
         regulations, under its Operator’s bond until the new Operator is approved and a new
         bond is executed. The existing Operator is relieved of responsibility in the interim
         only if the zone is deactivated or activated status is suspended, and all merchandise
         in zone status . . . has been removed from the zone or entered for consumption.




         42
              FTZM § 13.8(a)(2).
         43
            These formal procedures also protect operators. For example, if Customs had not granted Pasadena temporary
authority to operate 84-N and then decided that it was not a new operator, Pasadena would have had no way to recover
the tax benefits it necessarily would have lost.
         44
           An emphasis on recordkeeping is pervasive throughout the FTZ regulations. See, e.g., FTZM §§ 7.1–7.13
(Operator Recordkeeping and Reporting Responsibilities).

                                                         11
This section evinces a policy of stable transition if there is ever a proposed change in operators. By

ensuring that a party is responsible for the zone at all times, Customs is better able to control and

supervise merchandise entering and leaving the customs territory of the United States, which we

have explained is critical. Section 4.12(a) must apply to any successor of an existing operator;

otherwise, there would be no responsible party and the risks associated with implicit deactivation

are implicated. A successor operator’s right to operate a zone on a permanent basis is not a matter

of contract; Customs must approve it. But the successor remains provisionally responsible until

Customs deactivates or suspends the zone or approves a new application.

       Pasadena, as acting operator of Subzone 84-N, remained responsible for the zone until

Customs reached a final decision on whether approval of a new operator was required. Once

Customs confirmed that Pasadena was a new operator, and the Port declined to concur with its

application, the application was not approved, and Subzone 84-N was formally deactivated.

Pasadena’s responsibilities terminated only after deactivation was approved by Customs and all

inventory was removed at Pasadena’s expense. The stable transition envisioned by § 4.12(a) was

implemented in this case.




                                                 12
                                *      *      *       *      *

       Pasadena’s tax-exempt status did not terminate until Subzone 84-N was deactivated in

August 2013. We reverse the court of appeals’ judgment and render judgment for petitioner.




                                           Nathan L. Hecht
                                           Chief Justice

Opinion delivered: February 28, 2020




                                              13
