HQ 229305

August 27, 2002

DRA-4 RR:CR:DR

229305 CK

CATEGORY: Drawback

> U.S. Customs
>
> Port Director
>
> ATT: Deidra Golden
>
> 2350 North Sam Houston Parkway East
>
> Suite 1000
>
> Houston, Texas 77032-3126
>
> RE: Application for Further Review of Protest number 5301-00-100272;
> Astra Oil Company, Inc.; Drawback; 19 U.S.C. § 1313(p); §1313(j)(2);
> §1313(r); commercial interchangeability
>
> Dear Sir or Madam:
>
> The above-referenced protest, dated October 25, 2000, was forwarded to
> our office as an Application for Further Review of Protest No.
> 5301-00-100272. We also received your transmittal memorandum dated
> September 6, 2001, regarding this AFR.
>
> Initially, we note that the protest was timely filed on October 25,
> 2000 under the statutory and regulatory provisions for protests
> ([see]{.underline} 19 U.S.C. §1514 and 19 CFR Part 174). The refusal
> to pay a claim for drawback is a protestable issue. Here, the port
> denied the claim on July 28, 2000 ([see]{.underline} 19 U.S.C.
> §1514(a)(6)). However, we note that the request for AFR was not made
> until July 28, 2001. It is the opinion of your office that the
> Protestant's Request for Further Review meets the requirements of 19
> C.F.R. §174.24 and is therefore entitled to review by this office.
> However, 19 CFR §174.23 sets out that a request for further review
> shall be filed in the time allowed in 19 CFR §174.12. Section 174.12
> of the Customs Regulations states, in this case, the time for filing
> is within 90 days of liquidation. Therefore, the request for AFR on
> July 28, 2001 is not within 90 days of the liquidation of July 28,
> 2000, and the request for further review is untimely. Consequently, we
> note at the outset that the criteria for further review as set out in
> 19 CFR §§174.23-174.25 have not been met by the subject AFR, and we
> will treat this application as a request for internal advice per 19
> C.F.R. §177.11.

**FACTS:**

Protestant, Astra Oil Company, Inc. filed a drawback entry, 597-8, dated
December 20, 1996, pursuant to 19 U.S.C. 1313(j)(2) for No. 2 fuel oil,
also referred interchangeably by the parties as gasoil. The Port of
Houston denied the drawback entry on July 28, 2000.

Originally, Protestant designated entries 696-3 and 716-8 as the import
entries from which the exported gasoil, the basis of drawback entry
597-8, originated. Protestant claimed drawback on the exportation of
140,229 bbls of gasoil. We note that on the CF 7539 Protestant described
the merchandise as "Unl. Gasoline." A portion, 79,392 bbls, of the
exported merchandise was designated against import entry 696-3, and
60,817 bbls were designated against import entry 716-8, entry summary
dated March 26, 1996. The drawback entry was denied based on the finding
by Customs' New Orleans, Laboratory and Scientific Services (LSS) that
the merchandise in both import entries, and the exported merchandise do
not meet the ASTM D 396 specification for #2 fuel oil. Additionally, LSS
noted that the merchandise in both entries were not commercially
interchangeable with each other.

In its protest, Protestant amended its drawback claim on February 27,
1997, by dropping entry 696-3 as a designated entry, and re-designating
entry 231-6, dated November 20, 1996 as the source of 79,392 bbls of the
exported gasoil. Protestant further amended its drawback claim by
seeking drawback on that amount under 19 U.S.C. 1313(p). Protestant
affirmed its use of entry 716-8 as the designated import against the
export of 60,837 bbls of exported gasoil, and states that the imported
and exported gasoil is commercially interchangeable. Protestant further
amended its protest by changing the description of its merchandise from
"Unl. Gasoline" to "No. 2 Fuel Oil" and stating in parenthesis "gasoil."

A CF 7501 was submitted for entry 716-8, dated March 26, 1996. Line item
1 is 95,868 bbls of "oth, fuel oils," classified as 2710.00.1008, HTSUS.
The carrier is the M/V Overseas Vivian. A report of analysis
(certificate of quality) from Inchcape Testing Services was submitted,
and the following is found:

  ----------------- ----------------- ----------------- -----------------
  Property          Test Method       Result            Units

  API Gravity @ 60  ASTM D287         32.3              API
  F                                                     

  Flash Point       ASTM D93A         163               Degree F

  Sulfur Content    ASTM D4294        .29               \% of weight

  10% Distillation  ASTM D86          404.8             Degrees F

  50 % Distillation ASTM D86          522.9             Degrees F

  90% Distillation  ASTM D86          639.1             Degrees F

  Final B.P.        ASTM D86          672.7             Degrees F

  Viscosity at 100º ASTM D445         2.82              Cst
  F.                                                    

  Pour Point        ASTM D97          \<-30º c/-22 Deg. Degrees C and F
                                      F                 
  ----------------- ----------------- ----------------- -----------------

A CF 7501 was submitted for entry 231-6, dated November 20, 1996. Line
item 1 is 221,020 bbls of "oth, fuel oils," classified as 2710.00.1008,
HTSUS. The carrier is the M/V Yan Shui Hu. A report of analysis
(certificate of quality) from Petrotrin for "gasoil" was submitted, and
the following is found:

+-----------+-----------+-----------+-----------+-----------+-----------+
| Property  | Test      | Result    | Result    | Result    | Units     |
|           | Method    |           |           |           |           |
|           |           | Tank 3    | Tank 164  | Tank 66   |           |
+-----------+-----------+-----------+-----------+-----------+-----------+
| API       | ASTM      | 32.1      | 32.4      | 32.7      | API       |
| Gravity   | D1298     |           |           |           |           |
| at 60º    |           |           |           |           |           |
+-----------+-----------+-----------+-----------+-----------+-----------+
| Flash     | ASTM D93  | 85.5      | 80.0      | 79.0      | Degree C  |
| Point     |           |           |           |           |           |
+-----------+-----------+-----------+-----------+-----------+-----------+
| Sulfur    | ASTM      | .47       | .41       | .46       | \% of     |
| Content   | D4294     |           |           |           | weight    |
+-----------+-----------+-----------+-----------+-----------+-----------+
| 50 %      | ASTM D86  | 277       | 277       | 277       | Degrees C |
| Dis       |           |           |           |           |           |
| tillation |           |           |           |           |           |
+-----------+-----------+-----------+-----------+-----------+-----------+
| 90%       | ASTM D86  | 334       | 334       | 334       | Degrees C |
| Dis       |           |           |           |           |           |
| tillation |           |           |           |           |           |
+-----------+-----------+-----------+-----------+-----------+-----------+
| End Point | ASTM D86  | 363       | 369       | 366       | Degrees C |
+-----------+-----------+-----------+-----------+-----------+-----------+
| Pour      | ASTM D97  | -21       | -21       | -18       | Degrees C |
| Point     |           |           |           |           |           |
+-----------+-----------+-----------+-----------+-----------+-----------+
| Water and | ASTM      | 0.05      | 0.05      | 0.05      | \% of     |
| Sediment  | D2709     |           |           |           | volume    |
+-----------+-----------+-----------+-----------+-----------+-----------+
| Kinematic | ASTM 445  | 3.331     | 3.342     | 3.380     | mm        |
| Viscosity |           |           |           |           | ^2^~/3~   |
| at 40º C  |           |           |           |           |           |
+-----------+-----------+-----------+-----------+-----------+-----------+
| Density   | ASTM      | 0.8645    | 0.8630    | 0.8615    | kg/m^3^   |
| at 15º C  | D1298     |           |           |           |           |
+-----------+-----------+-----------+-----------+-----------+-----------+

A tanker bill of lading for the M/T Bolero 1 destined for Costa Rica
dated December 25, 1996 is also attached. The bill of lading is for
140,229.14 U.S. barrels of "gasoil." Also attached is a shipper's export
declaration, dated December 30, 1996 for the export of 140,229 bbls of
gasoil commodity number 2710.00.0020 under the Department of Commerce's
Schedule B, leaving from Texas for Costa Rica. (We note that the export
declaration is nearly illegible for the commodity number at the
seven-digit level).

Also attached is a certificate of analysis from Inspectorate America for
gasoil aboard the Bolero 1, and the following is found:

  ----------------- ----------------- ----------------- -----------------
  Property          Test Method       Result            Units

  API Gravity @ 60  ASTM D287         35.1              API
  F.                                                    

  Flash Point       ASTM D93          170               Degree F

  Sulfur Content    ASTM D4294        .29               \% of weight

  Initial Boiling   ASTM D86          370               Degrees F
  Point                                                 

  10% Distillation  ASTM D86          430               Degrees F

  50 % Distillation ASTM D86          524               Degrees F

  90 % Distillation ASTM D86          600               Degrees F

  Final B.P.        ASTM D86          640               Degrees F

  Viscosity CST @   ASTM D445         3.06              mm ^2^~/3~
  100º F.                                               

  Ramsbottom Carbon ASTM D524         0.16              \% of weight
  Residue on 10%                                        
  ----------------- ----------------- ----------------- -----------------

Below are the ASTM D396 specifications for Fuel oil no. 2, as published
in the Annual Book of ASTM Standards, 2001.

+-----------------------+-----------------------+-----------------------+
| Property              | Method                | No. 2 requirements    |
+-----------------------+-----------------------+-----------------------+
| Flash Point           | ASTM D93              | Min. 38º C            |
+-----------------------+-----------------------+-----------------------+
| Water and Sediment    | ASTM D2709            | 0.05                  |
+-----------------------+-----------------------+-----------------------+
| 90 % Distillation     | ASTM D86              | Min. 282º C           |
+-----------------------+-----------------------+-----------------------+
| Final B.P.            | ASTM D86              | 338º C                |
+-----------------------+-----------------------+-----------------------+
| Kinematic Viscosity   | ASTM 445              | 1.9 Min./             |
| at 40º C, mm ^2^~/3~  |                       |                       |
|                       |                       | 3.4 Max.              |
+-----------------------+-----------------------+-----------------------+
| Ramsbottom Carbon     | ASTM D524             | 0.35 Max.             |
| Residue on 10%        |                       |                       |
|                       |                       |                       |
| Distillation Residue, |                       |                       |
| % mass                |                       |                       |
+-----------------------+-----------------------+-----------------------+
| Sulfur Content        | ASTM D4294            | 0.50 Max.             |
+-----------------------+-----------------------+-----------------------+
| Density at 15º C,     | ASTM D1298            | 876 Max.              |
| kg/m^3^               |                       |                       |
+-----------------------+-----------------------+-----------------------+
| Pour Point            | ASTM D97              | Max. -6º C            |
+-----------------------+-----------------------+-----------------------+

**ISSUES:**

1.  Is the merchandise from entry 776-8 commercially interchangeable
    with the exported merchandise for purposes of 19 U.S.C. 1313(j)(2)?

2.  Can the Protestant change its drawback claim from a 19 U.S.C.
    1313(j)(2) claim to a 19 U.S.C. 1313(p) claim based on a different
    designated import entry?

**LAW AND ANALYSIS:**

Under 19 U.S.C. §1313(j)(2), as amended, drawback may be granted if
there is, with respect to imported duty‑paid merchandise, any other
merchandise that is commercially interchangeable with the imported
merchandise and if the following requirements are met. The other
merchandise must be exported or destroyed within three years from the
date of importation of the imported merchandise. 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. The party claiming drawback must either be 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. From the
evidence submitted in this case, it appears that Astra Oil had
possession of the imported and exported merchandise, however the issue
of possession will not be addressed in this decision.

The drawback statute was substantively amended by section 632, title VI
‑ Customs Modernization, Pub. L. No. 103‑182, the North American Free
Trade Agreement Implementation (\"NAFTA\") Act (107 Stat. 2057), enacted
December 8, 1993. The foregoing summaries of sections 1313(j)(2) and
1313(p) are based on the law as amended by Public Law 103‑182. Title VI
of Public Law 103‑182 took effect on the date of enactment of the Act
(section 692 of the Act). Except for subsection (p), according to the
applicable legislative history the amendments to the drawback law (19
U.S.C. 1313) are applicable to any drawback entry made on or after the
date of enactment as well as to any drawback entry made before the date
of enactment if the liquidation of the entry is not final on the date of
enactment (H. Report 103‑361, 103d Cong., 1st Sess., 132 (1993); see
also provisions in the predecessors to title VI of the Act; H.R. 700,
103d Cong., 1st Sess., section 202(b); S. 106, 103d Cong., 1st Sess.,
section 202(b); and H.R. 5100, 102d Cong., 2d Sess., section 232(b)).
The amendments to section 1313(p) apply to claims filed or liquidated on
or after January 1, 1988, and claims that are unliquidated, under
protest, or in litigation on the date of enactment of Public Law
103‑182.

Compliance with the Customs Regulations on drawback is mandatory and a
condition of payment of drawback ([United States v. Hardesty Co.,
Inc.]{.underline}, 36 CCPA 47, C.A.D. 396 (1949); [Lansing Co., Inc. v.
United States]{.underline}, 77 Cust. Ct. 92, C.D. 4675;
[see]{.underline} [also]{.underline}, [Guess? Inc. v. United
States]{.underline}, 944 F.2d 855, 858 (1991) \"We are dealing \[in
discussing drawback\] with an exemption from duty, a statutory privilege
due only when the enumerated conditions are met\" (emphasis added)).

Before its amendment 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. 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 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**,** prior to their amendment in 1998 (19 C.F.R.
191.2(l)). The report, at page 131, 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 industry
> 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. The amended Customs Regulations, 19 CFR 191.32(c),
provide that in determining commercial interchangeability:

> \...Customs shall evaluate the critical properties of the substituted
> merchandise and in that evaluation factors to be considered include,
> but are not limited to, Governmental and recognized industrial
> standards, part numbers, tariff classification and value.

In order to determine commercial interchangeability, Customs adheres to
the Customs regulations, which implement the operational language of the
legislative history. The best evidence as to whether those criteria are
used in a particular transaction are the claimant's transaction
documents. Underlying purchase and sales contracts, purchase invoices,
purchase orders, and inventory records show whether a claimant has
followed a particular recognized industry standard, or a governmental
standard, or any combination of the two, and whether a claimant uses
part numbers to buy, sell, and inventory the merchandise in issue. The
purchase and sale documents also provide the best evidence with which to
compare relative values. Also, if the claimant used another criterion to
sort the merchandise, the claimant's records would show that fact which
will enable Customs to follow the Congressional directions.

1.  Government or Industry Standard

In this case there is a recognized industry standard. Governmental and
recognized industry standards are generally considered the most
important of the four criteria with respect to the issue of commercial
interchangeability. While the New Orleans LSS originally looked at the
ASTM D396 specifications for Fuel oil no. 2 and determined the imported
merchandise and exported merchandise was not used interchangeably, new
specifications submitted by the Protestant were sent to the Washington,
D.C. LSS.

A chart comparing the merchandise from entry 716-8, the exported
merchandise, and the ASTM specifications for Fuel oil no. 2 is below:

+------------------------+----------+---------+---------------+------+
| ***Property***         | ***M     | ***ASTM | ***Entry      | ***E |
|                        | ethod*** | D396*** | 716-8***      | xpor |
|                        |          |         |               | t*** |
+------------------------+----------+---------+---------------+------+
| ***API Gravity @ 60    | ASTM     |         | 32.3          | 35.1 |
| F***                   | D287     |         |               |      |
+------------------------+----------+---------+---------------+------+
| ***Flash Point***      | ASTM     | Min.    | 163           | 170  |
|                        | D93A     | 10      |               |      |
|                        |          | 0.4[^1] |               |      |
+------------------------+----------+---------+---------------+------+
| ***Sulfur Content***   | ASTM     | 0.50    | .29           | .29  |
|                        | D4294    | Max.    |               |      |
+------------------------+----------+---------+---------------+------+
| ***10% Distillation*** | ASTM D86 |         | 404.8         | 430  |
+------------------------+----------+---------+---------------+------+
| ***50 %                | ASTM D86 |         | 522.9         | 524  |
| Distillation***        |          |         |               |      |
+------------------------+----------+---------+---------------+------+
| ***90% Distillation*** | ASTM D86 | Min.    | 639.1         | 600  |
|                        |          | 53      |               |      |
|                        |          | 9.6[^2] |               |      |
+------------------------+----------+---------+---------------+------+
| ***Final B.P.***       | ASTM D86 | Max.    | 672.7         | 640  |
|                        |          | 64      |               |      |
|                        |          | 0.4[^3] |               |      |
+------------------------+----------+---------+---------------+------+
| ***Pour Point***       | ASTM D97 | -6º c   | \<-30º C/-22  |      |
|                        |          | Max.    | Degree F      |      |
+------------------------+----------+---------+---------------+------+
| ***Viscosity CST @     | ASTM     | 1.9     | 2.82          | 3.06 |
| 100º F.***             | D445     | Min./   |               |      |
|                        |          |         |               |      |
|                        |          | 3.4     |               |      |
|                        |          | Max.    |               |      |
+------------------------+----------+---------+---------------+------+
| ***Ramsbottom Carbon   | ASTM     | 0.35    |               | 0.16 |
| Residue on 10%***      | D524     | Max.    |               |      |
+------------------------+----------+---------+---------------+------+
| ***Water and           | ASTM     | 0.05    |               |      |
| Sediment***            | D2709    |         |               |      |
+------------------------+----------+---------+---------------+------+
| ***Density at 15º C,   | ASTM     | 876     |               |      |
| kg/m^3^***             | D1298    | Max.    |               |      |
+------------------------+----------+---------+---------------+------+

The Washington, D.C. LSS determined that the imported fuel from entry
716-8, and the exported gasoil were interchangeable, and that both met
the specifications for Fuel oil no. 2. Therefore, this criterion is met.

A chart comparing the merchandise from entry 231-6, the exported
merchandise, and the ASTM specifications for Fuel oil no. 2 is below.

+-------------------------+---------+--------+--------+--------+-----+
| ***Property***          | ***ASTM | **     | **     | **     | *** |
|                         | D396*** | *Entry | *Entry | *Entry | Exp |
|                         |         | 23     | 23     | 23     | ort |
|                         |         | 1-6*** | 1-6*** | 1-6*** | *** |
|                         |         |        |        |        |     |
|                         |         | *      | *      | *      |     |
|                         |         | **Tank | **Tank | **Tank |     |
|                         |         | 3***   | 164*** | 66***  |     |
+-------------------------+---------+--------+--------+--------+-----+
| ***API Gravity @ 60     |         | 32.1   | 32.4   | 32.7   | 3   |
| F***                    |         |        |        |        | 5.1 |
+-------------------------+---------+--------+--------+--------+-----+
| ***Flash Point***       | Min.    | 185    | 1      | 174    | 170 |
|                         | 10      | .9[^5] | 76[^6] | .2[^7] |     |
|                         | 0.4[^4] |        |        |        |     |
+-------------------------+---------+--------+--------+--------+-----+
| ***Sulfur Content***    | 0.50    | .47    | .41    | .46    | .29 |
|                         | Max.    |        |        |        |     |
+-------------------------+---------+--------+--------+--------+-----+
| ***10% Distillation***  |         |        |        |        | 430 |
+-------------------------+---------+--------+--------+--------+-----+
| ***50 % Distillation*** |         | 277    | 277    | 277    | 524 |
+-------------------------+---------+--------+--------+--------+-----+
| ***90% Distillation***  | Min.    | 633    | 633.2  | 633.2  | 600 |
|                         | 53      | .2[^9] |        |        |     |
|                         | 9.6[^8] |        |        |        |     |
+-------------------------+---------+--------+--------+--------+-----+
| ***Final B.P.***        | Max.    | 685.   | 696.   | 690.   | 640 |
|                         | 640     | 4[^11] | 2[^12] | 8[^13] |     |
|                         | .4[^10] |        |        |        |     |
+-------------------------+---------+--------+--------+--------+-----+
| ***Pour Point***        | -6º c   | -21    | -21    | -18    |     |
|                         | Max.    |        |        |        |     |
+-------------------------+---------+--------+--------+--------+-----+
| ***Viscosity CST @ 100º | 1.9     | 3.331  | 3.342  | 3.380  | 3   |
| F.***                   | Min./   |        |        |        | .06 |
|                         |         |        |        |        |     |
|                         | 3.4     |        |        |        |     |
|                         | Max.    |        |        |        |     |
+-------------------------+---------+--------+--------+--------+-----+
| ***Ramsbottom Carbon    | 0.35    |        |        |        | 0   |
| Residue on 10%***       |         |        |        |        | .16 |
+-------------------------+---------+--------+--------+--------+-----+
| ***Water and            | 0.05    | .05    | .05    | .05    |     |
| Sediment***             |         |        |        |        |     |
+-------------------------+---------+--------+--------+--------+-----+
| ***Density at 15º C,    | 876     | .8645  | .8630  | .8615  |     |
| kg/m^3^***              | Max.    |        |        |        |     |
+-------------------------+---------+--------+--------+--------+-----+

The Washington, D.C. LSS has also determined that the imported fuel from
entry 213-6, and the exported gasoil were interchangeable, and that both
met the specifications for Fuel oil no. 2. Therefore, this criterion is
met for entry 213-6.

2.  Tariff Numbers

The merchandise in both entries (231-6 and 716-8), according to the CF
7501s, is classified as 2710.00.1008, HTSUS. The exported merchandise
according to the export declaration, which is illegible at the seven
digit level, is commodity number 2710.00.0020 under the Department of
Commerce's Schedule B. The Harmonized Tariff Schedule and Schedule B
share chapter headings, but are not necessarily corresponding through
the eight and ten digit level. However, it states in T.D. 98-16, 63 F.R.
10978 (March 5, 1998), Final Rule promulgating revision of Part 191,
Customs Regulations that

> > In any event, although only the 6-digit HTSUS or Schedule B
> > commodity number is required on the certificate of delivery for the
> > transfer of substituted merchandise under 19 U.S.C. 1313(j)(2)**,
> > full tariff classification** is required to establish commercial
> > interchangeability under 19 U.S.C. 1313(j)(2). (emphasis added)

Based on the above information, the imported and exported merchandise
appears to be the same only through the six digit number, rather than
the full tariff classification. Additionally, our research of the
obsolete and current commodity numbers of Schedule B, showed that there
was never a commodity number 2710.00.0020, nor any number other similar
number. Any higher numbers such as 2710.00.60 or 2710.00.80 would not
correspond to the physical or chemical properties found in the exported
commodity. Our research also showed that the corresponding Schedule B
commodity number to subheading 2710.00.1008, HTSUS would have been
2710.00.1007, and the commodity number supplied on the export
declaration could not possibly be interpreted to be 2710.00.1007.
Therefore, this criterion does not support a finding of commercial
interchangeability for either entry 716-8 or 231-6.

3.  Part Numbers

Part numbers are not applicable, instead the only distinguishing actions
taken is into which tank number the merchandise is offloaded or removed
from. This criterion is neutral for both entries.

4.  Relative Values

Protestant has not submitted any commercial information or evidence to
support the value of the merchandise. No sales or purchase orders or
invoices, letters of credit, or any other financial information was
submitted. However, Protestant states that the price of the import cargo
(716-8) was \$24.84 and price of the export cargo (Costa Rica) was
\$26.54. Protestant also states that the price of the import cargo in
entry 231-6 was \$27.67 and price of the export cargo (Costa Rica)
remains \$26.54. The price per bbls for the import is the dutiable value
declared on the CF 7501s divided by the number of bbls. The export price
per bbls is based on the declared value on the export declaration
divided by the quantity exported. We accept these figures as a
stipulation of price by Protestant. Therefore, since Protestant has
stipulated the price, based on the dutiable value and export
declaration, we accept that there is only a small difference in the
relative values of the imported and exported merchandise and this
criterion is met.

In this case part numbers are inapplicable. Tariff numbers do not
support a finding of commercial interchangeability. However, industry
standards and relative values criteria are favorable to a finding of
commercial interchangeability. Based on an analysis of the four criteria
above, we find that the merchandise in entry 716-8 and entry 231-6 is
commercially interchangeable with the exported gasoil. The protest
should be [granted]{.underline} for this portion of the drawback claim.

The second issue is whether Protestant can amend its 19 U.S.C.
1313(j)(2) claim to base drawback entitlement under 19 U.S.C. 1313(P).

We note that under 19 U.S.C. 1313(r)(2), a drawback entry filed pursuant
to any subsection of section 1313 shall be deemed filed pursuant to any
other subsection of section 1313 if it is determined that drawback is
not allowable under the entry as

originally filed but is allowable under such other subsection.

Based on the plain language in 19 U.S.C. 1313(r)(2), Protestant's
drawback claim filed pursuant to 19 U.S.C. 1313(j)(2), is also
considered filed pursuant to 19 U.S.C. 1313(p).

Generally, section 1313(p) of the United States Code (19 U.S.C.
§1313(p)) provides for drawback for certain petroleum derivatives. Under
section 1313(p)(1), notwithstanding any other provision in section 1313,
if:

> \(A\) an article (referred to in section 1313(p) as the "exported
> article") of the same kind and quality (as specifically defined in
> section 1313(p)) as a qualified article is exported;
>
> \(B\) the requirements set forth in section 1313(p)(2) are met; and
>
> \(C\) a drawback claim is filed regarding the exported article,

the amount of the duties paid on, or attributable to the qualified
article shall be refunded as drawback to the drawback claimant. The
"notwithstanding" clause was included in order to overcome the
requirements in 19 U.S.C. §§1313(a) and (b) that the export article made
by the petroleum refiner be the article that is actually exported, and
that it be commercially interchangeable for purposes of §1313(j).

For purposes of this subsection a \"qualified article\" means an article
described in

heading 2710, HTSUS (among other headings), which is imported and
duty-paid. An exported article is of the \"same kind and quality\" as
the qualified article for which it is substituted under this subsection
if it is a product that is commercially interchangeable with **or**
merchandise referred to under the same eight-digit classification of the
HTSUS as the qualified article.

The requirements in section 1313(p)(2), compliance with which is a
condition precedent to drawback under section 1313(p), are that the
exporter must have: (1) manufactured the imported qualified article; or
(2) purchased/exchanged the same from the manufacturer; or (3) imported
a qualified article; or (4) purchased/exchanged an imported qualified
article from the importer; and the exportation occurs within 180 days
after the date of entry of the imported qualified merchandise or during
the manufacturing period or within 180 days after the close of such
period.

In this case, the merchandise at issue is petroleum. The merchandise in
both import entries is classified under subheading 2710.00.1008, HTSUS.
In regard to the exported merchandise, as discussed above in the first
issue, we were unable to locate the Schedule B commodity number on the
export declaration in the obsolete or current Schedule B. Therefore,
"same kind & quality" for purposes of 19 U.S.C. 1313(p) cannot

be established by reference to the classification of the merchandise in
entry 231-6 to the exported merchandise by the 8-digit classification of
the HTSUS. However, while the tariff classification criterion was not
met for purposes of commercial interchangeability, we found based on an
analysis of the four criteria, the imported merchandise in entry 231-6
and the exported merchandise was commercially interchangeable, [see
above]{.underline}. Therefore the merchandise is a "qualified article"
based on the commercial interchangeability of the merchandise.
[See]{.underline}*,* 19 U.S.C. 1313(p)(3)(B). Second, the Protestant is
the importer and the exporter of the qualified article. A total of
140,229 bbls of petroleum product was exported, but only 79,392 bbls are
attributed to entry 231-6. Line item 1 of entry 231-6 states that
221,020 bbls of petroleum product were imported in that entry.
Therefore, the drawback claimed does not exceed the amount that may be
attributed to the entry. Finally, entry 231-6 was entered November 20,
1996, and the export upon which the drawback claim is made occurred on
December 25, 1996. Therefore, the exported product, which is the subject
of the drawback claim, was imported within 180 days of the claimed
export. Protestant has satisfied the drawback requirements for a claim
pursuant to 19 U.S.C. 1313(p). The protest should be
[granted]{.underline} for the drawback attributable to a 19 U.S.C.
1313(p) claim.

**HOLDINGS:**

1\. Taking into account that part numbers are inapplicable, tariff
numbers are neutral, and that industry standards and relative values
criteria are favorable, we find the merchandise in entry 716-8 and entry
231-6 to be commercially interchangeable with the exported gasoil. The
protest should be [granted]{.underline} for this portion of the drawback
claim.

2\. Protestant has satisfied the drawback requirements for a claim
pursuant to 19 U.S.C. 1313(p). The protest should be
[granted]{.underline} for the drawback attributable to a 19 U.S.C.
1313(p) claim.

The protest is **granted**. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550‑065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries in accordance
with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings

will make the decision available to Customs personnel, and to the public
on the Customs Home Page on the World Wide Web at www.customs.gov, by
means of the Freedom of Information Act, and other methods of public
distribution.

Sincerely,

Myles Harmon, Acting Director

Commercial Rulings Division

[^1]: Converted from 38º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^2]: Converted from 282º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^3]: Converted from 338º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^4]: Converted from 38º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^5]: Converted from 85.5º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^6]: Converted from 80º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^7]: Converted from 79º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^8]: Converted from 282º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^9]: Converted from 334º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^10]: Converted from 338º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^11]: Converted from 363º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^12]: Converted from 369º Celsius (º C \* 9/5 + 32 = Fahrenheit)

[^13]: Converted from 366º Celsius (º C \* 9/5 + 32 = Fahrenheit)