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HQ 226435

September 17, 1997

DRA-4-RR:IT:EC 226435 LTO


Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, Illinois 60607

RE: Protest 3901-95-101952; substitution unused merchandise drawback; 19 U.S.C. 1313(j)(2); 19 U.S.C. 1313(j)(3); 19 CFR 191.32(e); waste; commercial interchangeability; relative values; use; HQs 222059, 222494, 223533, 225493, 226074, 226473, 227084

Dear Port Director:

This is in reference to protest 3901-95-101952, which concerns the eligibility of certain imported tinplate for drawback under 19 U.S.C. 1313(j)(2). The drawback entries were filed between November 25, 1992 and March 22, 1993, and were liquidated on June 2, 1995. This protest was timely filed, in accordance with 19 U.S.C. 1514(c)(2), on August 14, 1995.


The protestant, Berlin Metals, Inc. ("Berlin"), purchases foreign and domestic tinplate in coil or sheet (coil rolled out and cut to length) form. Berlin cuts the coil or sheet and then exports foreign and domestic coil ends and non-conforming sheet to foreign buyers. This protest concerns the export of the domestic coil ends and non-conforming sheet. According to Berlin, the imported and exported articles are, in all cases, tinplate having the same class and specification assigned by the American Society for Testing and Materials ("ASTM"). See "Standard Specification for Tin Mill Products," ASTM A 623-92. The tinplate that is designated for drawback and the tinplate that is exported with a claim of drawback are in all cases to be used in the manufacture of tin cans and containers.

Based on the Drawback Audit Report, dated March 9, 1995, which was prepared by the Regulatory Audit Division, Chicago, Illinois, you found "that substantially all (95%) of the substituted exports were not commercially interchangeable with
their designated imports," and therefore, were not eligible for drawback.


1. Whether any of the exported merchandise was "waste."

2. Whether the exported coil ends and non-conforming sheet are commercially interchangeable with the imported tinplate, in sheet and coil form.


1. Waste

It has long been the position of the Customs Service, based on long-standing Court decisions, that drawback is not allowable on the exportation of waste. In United States v. Dean Linseed-Oil Co., 87 Fed. 453, 456 (2nd Cir. 1898), cert. den., 172 U.S. 647 (1898), the Government argued that the petitioner was not entitled to any drawback, "because oil cake is not a manufactured article, but is waste." The Court did not accept this argument, holding that the merchandise involved (linseed oil cake) was not waste, but a manufactured article, so that drawback would be available. However, the Court implicitly accepted the Government's position that drawback was unavailable on the exportation of waste by distinguishing the linseed oil cake from tobacco scraps or tobacco clippings, which were held not to be manufactured articles by the U.S. Supreme Court in Seeberger v. Castro, 153 U.S. 32 (1894) (cited in Dean Linseed-Oil). See HQ 222494, dated February 14, 1996.

A review of the commercial invoices indicates that some of the exported merchandise may have been "waste." For example, an invoice dated July 21, 1991, for entry C39-XXXX139-4, lists "electrolytic tinplate waste/waste" as exported merchandise; an invoice dated August 13, 1991, for entry C39-XXXX119-6, lists "secondary electrolytic tinplate w/w in coils" as exported merchandise; and an invoice dated December 10, 1992, for entry C39-XXXX148-5, lists "misprints" as exported merchandise.

Berlin contends that they do not export tinplate waste. They state that "'tin plate scrap' is not sold as a separately identifiable commodity on the export market . . . and Berlin has not sold any such scrap for export. No quoted export prices for tinplate scrap exist." However, companies like Berlin that generate tinplate scrap as part of their manufacturing operations, usually sell it at or near a quoted market price for

"#1 Dealer Bundles"--a standard phrase used in the steel, automotive and scrap industries to identify quantities of bundled or baled scrap metal sold to steel mills for remelting. "#1 Dealer Bundles" consist of tinplate scrap (including clippings or other forms) compressed to not less than 75 pounds per cubic foot.

Berlin has provided a copy of a purchase contract, dated August 6, 1991, for domestic tinplate scrap. Berlin's sales price for "tin plate clips" (a form of tinplate scrap that is shredded) is based upon the "first effective issue of Iron Age Scrap Price Bulletin, Chicago area, #1 Dealer Bundles, high side . . . Less $21.00 per gross ton."

Berlin has also provided copies of the Iron Age Scrap Price Bulletin for July 22, 1991, July 27, 1992, and July 26, 1993, which list ferrous scrap prices at those times for several markets. The price at Los Angeles for "#1 Dealer Bundles" in July of 1992 was $54 to $56 per gross ton (2,240 lbs.), or $2.41 to $2.50 CWT, while the price at Chicago was $141 to $142 per gross ton, or $6.29 to $6.34 CWT ["CWT price" is the price for each 100 pounds (e.g., "$22 CWT" means "$22 per hundred pounds"); it is also referred to as "cwt.," or the "hundred weight" price]. Using the formula set forth in Berlin's 1991 sales contract, the 1992 price per CWT for tin plate scrap was $3.53 ("Chicago area"). Berlin has not provided a purchase contract using "Los Angeles area" prices.

According to the protestant, "[t]he price per CWT of the export product is less than the price of the designated import, and typically in the range of (U.S.) $10-14 per CWT." The commercial invoices described above indicate a somewhat wider "price per CWT" range for "waste/waste," "w/w" and "misprints," respectively: $9.47, $16.24 and $8.00 CWT. All are substantially greater than the "price per CWT" for "#1 Dealer Bundles" of ferrous scrap provided in the above-listed copies of the Iron Age Scrap Price Bulletin (approximately 3 times greater, using Los Angeles, the place of export, prices).

As stated above, Berlin has provided a purchase contract that lists the terms for the purchase of "tin plate clips." This purchase is based in part on the price of "Dealer #1 Bundles," as listed in the Scrap Price Bulletin. There is no evidence indicating the relationship between "tin plate clips" (shredded tinplate scrap) and the exported merchandise, which is claimed to be coil ends and non-conforming sheet. Further, there is no evidence indicating that the correct comparison is between

"Dealer #1 Bundles," rather than other forms of scrap listed in the Scrap Price Bulletin, and the exported merchandise.

Berlin has also submitted a letter dated March 27, 1996, from Weirton Steel Corporation ("Weirton"), where Weirton provides that the term "waste/waste" refers to "Tin Mill Products where a coil or skid of cut sheets produced by the steel mill has some defect that will reduce the overall yield of the coil or skid for its intended customer to 95% or less. This defect could be as simple as a damaged edge." This material can be purchased at a "lower than the normal transaction price to compensate for the lesser yield." Can manufacturers, with the ability to choose from a large number of can sizes, can types and types of fabricating machinery, "are typically able to have the material cut to a different size with the defective sheets sorted out to allow them to utilize the material." According to Weirton, the term "'waste/waste' is not a term used to describe scrap Tin Plate products."

In another letter submitted by Berlin dated March 18, 1996, from Keun Yuan Hong, Inc. ("KYH"), KYH provides that it purchased over 1,000 tons of tin mill products from Berlin in 1992 and 1993. This material, which "was not scrap and was very much 'usable,'" had been purchased from American National Can Co. ("ANC"). KYH then re-sold the material as "Tin Plate" in Asia to be used to make tin cans for food products. KYH has provided invoices and bills of lading from 1992 which refer to the product purchased from Berlin as "electrolytic tinplate" in sheet (i.e., "ETP MISPRINT MIXED TYPE," "WASTE/WASTE ELECTROLYTIC TINPLATE IN SHEET OR TIN FREE STEEL MISPRINTED, MISLACQUERED"). According to the protestant, the term "misprints," as found on invoices and bills of lading, refers to tinplate sheets that have been lithographed with a design that might not be exactly according to the producer's specifications. The foreign purchaser again lithographs the tin plate and makes it into a can meeting the purchasers's specifications, after excluding or covering up the earlier lithograph.

Finally, Berlin has submitted a statement from the former Director of ANC (Director when Berlin purchased the tinplate exported with claims for drawback) dated December 4, 1995. In this letter, the former Director confirms that the tinplate purchased by Berlin was usable by container manufacturers abroad for the production of tinplate containers, that ANC designated the product as "scrap" for internal (accounting) purposes only, that tinplate scrap was not sold for export ("sold to industrial scrap facilities in the USA only"), and that the product
purchased by Berlin had a "considerably higher" value than the scrap metal generated from their manufacturing process.

The letter from Weirton refers to merchandise described as "waste/waste" as "secondary." This, and other references in the Weirton letter, will be discussed in the "commercial interchangeability" section of this ruling. The letter from KYH does not identify the signer, nor does it state the basis of the signer's knowledge. An unverifiable affidavit, such as this, is not entitled to much weight. See Andy Mohan Inc. v. United States, 537 F.2d 516; 63 C.C.P.A. 103; C.A.D. 1173 (1976). Further, invoices (i.e, B/L LOC139744) submitted by Berlin which list the shipper/exporter as KYH fail to show the name of the purchaser and have discrepancies in the weights of the exported articles (LBS vs. KGS). The letter from ANC states that ANC's accounting department designates their sales as "scrap," for internal purposes, but claims that the articles are not "scrap." The letter does not provide an explanation as to why ANC lists its sales as "scrap" internally, nor does it explain why some of the invoices submitted by Berlin list the merchandise as "waste/waste," "w/w" and "misprints," while others refer to the merchandise simply as tinplate coil.

After thoroughly reviewing the documentation provided by Berlin, including the purchase contract, industry price lists and letters submitted by Weirton, KYH and the former Director of ANC, we believe that Berlin has failed to provide sufficient evidence indicating that the exported merchandise did not consist of any waste. Accordingly, the merchandise described as "waste/waste," "w/w" or "misprints" are excluded, on this basis, from drawback eligibility.

2. Commercial Interchangeability

Under 19 U.S.C. 1313(j)(2), as amended, drawback may be granted if, among other requirements, there is, with respect to imported duty-paid merchandise, any other merchandise that is commercially interchangeable with the imported merchandise. To qualify for drawback, the other merchandise must be exported or destroyed within 3 years from the date of importation of the imported merchandise. Also, before the exportation or destruction, the other merchandise may not have been used in the United States and must have been in the possession of the drawback claimant. Further, the party claiming drawback must be either the importer of the imported merchandise or have received from the person who imported and paid any duty due on the imported merchandise a certificate of delivery transferring to
that party the imported merchandise, commercially interchangeable merchandise, or any combination thereof.

The drawback law was substantively amended by section 632, title VI - Customs Modernization, Public Law 103-182, the North American Free Trade Agreement Implementation Act (107 Stat. 2057), enacted December 8, 1993. Before its enactment by Public Law 103-182, the standard for substitution was "fungibility." House Report 103-361, 103d Cong., 1st Sess., 131 (1993), contains language explaining the change from fungibility to commercial interchangeability as a standard for substitution for drawback under 19 U.S.C. 1313(j)(2). According to the House Ways and Means Committee Report, the standard was intended to be made less restrictive (i.e., "the Committee intends to permit the substitution of merchandise when it is 'commercially interchangeable,' rather than when it is 'commercially identical'") (the reference to "commercially identical" derives from the definition of fungible merchandise in the Customs Regulations (19 CFR 191.2(l))). The Report also states:

The Committee further intends that in determining whether two articles were commercially interchangeable, the criteria to be considered would include, but not be limited to: Governmental and recognized industrial standards, part numbers, tariff classification, and relative values.

The Senate Report for the NAFTA Act (S.Rep. 103-189, 103d Cong., 1st Sess., 81-85 (1993)) contains similar language and states that the same criteria should be considered by Customs in determining commercial interchangeability.

Berlin contends that the imported tinplate, in sheet and coil form, is "commercially interchangeable" with the exported tinplate, in the form of coil ends and non-conforming sheet. With regard to the first, Governmental and recognized industrial standards criterion, both the import and export consist of tinplate having the same class and specification--"Standard Specification for Tin Mill Products," ASTM A 623-92--a recognized industrial standard assigned by ASTM. However, Berlin has not provided any contracts (import or export) indicating that the sale was on the basis of the ASTM specifications. In the absence of these contracts, use of these specifications to prove "commercial interchangeability" would seem to be inappropriate.

The second, part numbers criterion, is not relevant to the instant case.

With regard to the third, tariff classification criterion, both the imported and exported tinplate are classifiable under heading 7210, Harmonized Tariff Schedule of the United States (HTSUS), which provides for flat-rolled products of iron or nonalloy steel, of a width of 600 mm or more, clad, plated or coated. Specifically, the tinplate, in coil or sheet form and with or without imperfect edges, is classifiable either under subheading 7210.11.00, HTSUS (0.5 mm or more), or subheading 7210.12.00, HTSUS (less than 0.5 mm), depending on the thickness of the product.

There is no evidence as to whether the cutting and slitting in the United States affects the thickness, and therefore, the classification of the product. Berlin states that the exported merchandise "is identical in all respects to the import, except that it may be a smaller length or width . . . ." Berlin also states that the imported and exported merchandise is "classifiable in the same provision of the [HTSUS]. The classification is subheading 7210.11 and 7210.12, HTSUS . . . (emphasis added)." If the cutting or slitting of the coil or sheet does not affect the thickness of the product, and the products imported and exported by Berlin are covered by the same subheading, either subheading 7210.11 or 7210.12, HTSUS, then they would satisfy the third criterion. However, if the cutting or slitting of the coil or sheet does affect thickness and classification, then Berlin will have failed to satisfy this criterion.

With regard to the fourth, relative values criterion, Berlin states that it sells tinplate to a foreign buyer that is "identical in all respects to the import, except that it may be smaller in length or width, or may have an imperfect edge which makes it unsuitable for automated production techniques." However, the Drawback Audit Report and commercial documentation submitted by Berlin, indicates that the import "CWT price" often differed from the export "CWT price." CWT price is an industry standard for tinplate which, according to Berlin, is not affected by the width or length of the coil or sheet.

For example, according to documentation in the file (i.e., invoices, the Audit Report), the imports in drawback entry number C39-XXXX119-6, ranged from $18 to $31 CWT (rounded to the nearest dollar), while exports were listed at $7, $14-18 and $22 CWT. In drawback entry number C39-XXXX139-4, imports were either $26 or $31 CWT, while exports were listed at $9, $13-14 and $17 CWT. In drawback entry number C39-XXXX148-5, imports ranged from $19 to $43 CWT, while exports were listed at $8-9, $13-15 and $17 CWT.

We note that we have no evidence as to the description of the imported merchandise.

The standards used in the Audit Report when considering the relative values of the import and export were described as follows:

A First-In, First-Out (FIFO) analysis was used to match each import with a corresponding export. If the CWT price of the export was equal to or greater than the import, the relative value was considered comparable. On the other hand, the relative value was not comparable if the CWT price of the export was less than the import's CWT price.

Thus, drawback was denied in drawback entry number C39-XXXX119-6 for imports listed at $22 CWT when matched with exports listed at $14, $16 and $18 CWT. However, drawback was granted for an import listed at $22 CWT when matched with an export also listed at $22 CWT. These "standards" were consistently followed in the report for all entries, and were used to deny the drawback claims in question, except on six occasions found in drawback entry numbers C39-XXXX116-2 and C39-XXXX119-6. In these instances, the auditor (mistakenly, according to the Audit Report's standards) allowed drawback where the CWT price of the export was less than the CWT price of the import, but denied drawback where the CWT price of the export was greater than the CWT price of the import.

The rejection of drawback claims because the value of the export is less than the value of the import has no foundation in the drawback statute, regulations or legislative history. Thus, reliance on the auditor's guidelines in this instance was misplaced. The focus of a section 1313(j)(2) drawback determination is on "commercial interchangeability." The relative values of the import and export are merely factors in this determination. Customs has previously found merchandise to be commercially interchangeable where the value of the export was less than the value of the import. See, e.g., HQ 225493, dated July 19, 1995 (with regard to the January 22, 1992 claim, the relative value of the imported merchandise was $0.2585, while the relative value of the exported merchandise ranged from $0.245 to 0.31).

Berlin states that the difference in value between the imported and exported tinplate is due to a loss of value caused by the cutting and slitting of the imported tinplate and to changes in market conditions. Berlin also contends that the loss
of value due to the cutting and slitting should not automatically disqualify a product for substitution under 19 U.S.C. 1313(j)(2), because cutting and slitting do not constitute a "use" of the merchandise under 19 U.S.C. 1313(j)(3) and the exported steel is suitable for the same use (making metal containers) as that which was imported.

As provided above, Berlin states that the CWT price "is an industry standard . . . which is not affected by the width or length of the coil or sheet." Berlin does not explain why the cutting and slitting of the imported tinplate would affect its CWT price, a price related to the sale of 100 pounds of the material in any form.

With regard to 19 U.S.C. 1313(j)(3), we agree that the cutting or slitting (both of which are specifically enumerated in section 1313(j)(3)) of the tinplate coil and sheet does not amount to a manufacture or production, and therefore, "shall not be treated as a use of that merchandise . . . ." See also 19 CFR 191.32(e). The cutting and slitting changes the length and/or width of the coil and sheet, but does not transform them into a new and different article having a different name, character or use. See Anheuser Busch v. United States, 207 U.S. 556 (1907). However, section 1313(j)(3) has no effect upon the commercial interchangeability issue of 19 U.S.C. 1313(j)(2). Use in accordance with section 1313(j)(3) does not eliminate eligibility under sections 1313(j)(1) and (2). However, the commercial interchangeability requirement of section 1313(j)(2) is a separate issue from the section's "use" restriction. See HQ 227084, dated November 25, 1996; HQ 226473, dated March 19, 1996.

Berlin states that market values may also vary because of the time of sale and the market into which the product is sold, but provides no evidence of these changing conditions. In HQ 226074, dated September 29, 1995, we stated that "the fluctuation of the market forces, such as supply and demand, for such merchandise should be considered." In that case, "a company representative stated that in January of 1994, it was the lowest market for MTBE [Methyl Tertiary Butyl Ether] in years and that by January of 1995 the market had improved and the prices for MTBE were a lot higher than the previous year." Because we found no evidence to contradict these statements, we concluded that the disparity in relative values was not significant. Berlin has provided no such statement or documentation to conclude the same. We note that percentage differences greater than that found in this case have not been fatal to a finding of commercial interchangeability when those differences have been adequately accounted for. See HQ 225493 (discussing the broad range in
contract-prices and values of crude peanut oil). It is our opinion that the relative values criterion has not been satisfied.

Berlin further states that the foreign purchaser, because it uses less highly automated production techniques, is able to use the coil ends and non-conforming coil or sheet in its can-making operations. The exported tinplate can be used by the foreign fabricator to make the same products produced from tinplate by U.S. can manufacturers. In fact, as stated above, the Weirton (the author manages the sale of "secondary Tin Mill Products") letter refers to the exported merchandise described as "waste/waste" as "secondary," and further indicates that the trade does not treat products described as "waste/waste" interchangeably with tinplate in coil or sheet form (i.e., smaller yield due to defect).

As stated in HQ 227084, "[a]ny determination with respect to commercial interchangeability must consider the entire commercial situation . . . . To confine the analysis to the perspective of the seller, and to ignore the perspective of the buyer (as well as the totality of the commercial situation) would result in an incomplete and flawed analysis and would not be a legitimate analysis of the commercial interchangeability issue." The issue is whether the imported and exported merchandise are commercially interchangeable with each other--our analysis is not affected by which of the articles are said to be commercially interchangeable with the other. In looking at the entire commercial situation at issue, it appears that a foreign purchaser that uses the same production techniques as the importer would not want (or be able) to use the exported articles. Based on the foregoing, there is insufficient evidence to conclude that the imported and exported articles are "commercially interchangeable."

Berlin contends that the standards for satisfying the "commercial interchangeability" requirement should not be as rigid as the "fungibility" test for steel products. See HQ 223533, dated March 2, 1992 (defining "commercially identical"). We agree, and note that the imported and exported tinplate would not have been considered "fungible" under this test (not in the same form, diameter or width). These differences would not, however, have precluded a finding of "commercial interchangeability" if there was sufficient evidence to account for the possible difference in classification and the apparent differences in relative values between the imported and exported articles.

Berlin also cites our decision in HQ 222059, dated December 17, 1990 (cited as HQ 223533 in the protestant's brief), for the proposition that "[e]ven under the fungibility standard for 'same condition' substitution drawback, loss of value was not necessarily a reason for denial of drawback." However, HQ 222059 did not concern the exportation of "substituted" merchandise, but the exportation of imported diaries, appointment books and other stationary items that were printed for a given calendar year. After the year for which they were printed passed, the items lost their commercial appeal, and much of their commercial value. We held that a reduction in the commercial value of merchandise, by itself, is immaterial to the same condition determination under 19 U.S.C. 1313(j)(1). "Fungibility" was not an issue. As such, HQ 222059 is not relevant to a determination under 19 U.S.C.

Finally, Berlin contends that certain clerical errors found in the Audit Report regarding drawback entry numbers C39-XXXX116-2 and C39-XXXX119-6 should be corrected. As stated above, on six occasions, the auditor (mistakenly, according to the Audit Report's standards) allowed drawback where the CWT price of the export was less than the CWT price of the import, but denied drawback where the CWT price of the export was greater than the CWT price of the import.

In one instance, drawback was granted where the import was listed at $53, while the export was listed at $22 (drawback entry number C39-XXXX116-2). According to the Audit Report's standards, the protestant is correct, as drawback should have been denied. However, drawback should not have been denied because the value of the import was greater than the value of the export, but because the value of the import is more than twice that of the export without explanation as to why we should discount this difference. Drawback was incorrectly granted in this instance.

With regard to the other five instances where the auditor failed to follow the Audit Report standards, all involved smaller relative value differences between import and export. In each case, however, the auditor correctly denied eligibility (albeit for the wrong reason), as there is insufficient evidence to discount the difference in relative values.

Similarly, because of insufficient evidence regarding relative values, drawback was also incorrectly granted in any instance where the relative values were not a "perfect match" (like that found in drawback entry number C39-XXXX119-6, where drawback was granted when imports listed at $22 CWT were matched
with exports listed at $22 CWT, if the tariff classification of this merchandise was the same).

3. Miscellaneous

There are several miscellaneous deficiencies in the documentation provided in this claim that would preclude drawback eligibility in these instances. Berlin has provided several forms listing non-exports among those claimed to be eligible for drawback. For example, destinations listed on the "Amended Schedule B" for entry C39-XXXX119-6 include Flushing, New York, and Cerritos, California. Destinations listed on the "Schedule B" for entry C39-XXXX129-5 include Norwalk, California, Flushing, New York, and Cerritos, California. Destinations listed on the "Schedule B" for entry C39-XXXX116-2 include Norwalk, California. Further, the export dates listed on this particular form (all in 1989) occurred prior to the designated imports (all in 1990). See 19 U.S.C. 1313(j)(2)(B) (merchandise must be exported or destroyed after importation). Finally, the "Schedule A" for certain entries was either missing (C39-XXXX134-5, C39-XXXX122-0) or unreadable (C39-XXXX121-2).


There is insufficient evidence to find that the exported merchandise described as "waste/waste," "w/w" or "misprints," was not waste. Further, there is insufficient evidence to find that the imported tinplate, in coil or sheet, and the exported tinplate, in the form of coil ends and non-conforming sheet, are "commercially interchangeable," except in situations where the exported merchandise is not described as "waste/waste," "w/w" or "misprints" and the relative values and tariff classification of the import and export are the same. Finally, there are other deficiencies on certain claims (i.e., non-exports, exports occurring prior to imports) that would preclude drawback eligibility. Accordingly, the protest should be DENIED.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette

Subscription Service, Freedom of Information Act and other public access channels.


Director, International Trade

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