HQ 223533: Your request for internal advice concerning fungibility ofsteel products; fungibility; substitution same conditiondrawback; steel products; 19 U.S.C. 1313(j)(2)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 223533

                          March 2, 1992

DRA-4-CO:R:C:E 223533 C

CATEGORY:  Drawback

Maryanne Carney
Chief, Drawback Branch
New York Region
Suite 716
6 World Trade Center
New York, New York  10048-0945

RE:  Your request for internal advice concerning fungibility of
steel products; fungibility; substitution same condition
drawback; steel products; 19 U.S.C. 1313(j)(2)

Dear Ms. Carney:

     This responds to the referenced request for internal advice,
dated October 22, 1991 (DRA-4-04-O:C:D BCH).  By memorandum of
November 26, 1991, we submitted to Headquarters Office of
Laboratories and Scientific Services (Lab Services) your request
for internal advice and the "Guidelines for Applying to File
Claims Using Substitution Same Condition Drawback" for the three
companies requesting such drawback.  By memorandum of January 28,
1992, that office responded (DRA-1-CO:L:O:T MSC).

     Attached, please find a copy of the Lab Services response. 
To summarize, it concludes that the three "Guidelines," or
applications, as they are currently constituted, fail to
demonstrate fungibility.  The applications for ELG Haniel Trading
Corporation and Titan Steel Corporation lack elemental analysis
sheets (see Lab Services response), and the elemental analysis
sheets for Amstek Metal are either incomplete with respect to
items 6 and 7 of exhibit one or fail to establish fungibility for
want of Cu and Mo content in the domestic merchandise (see
attached note from Lab Services, dated February 19, 1992). 
Otherwise, the Lab Services response sets forth, as follows, the
factors that should be considered when making fungibility
determinations for steel, noting that ranges cannot be set but
must be considered on a case by case basis (see bottom of p. 1;
in this regard, we note that the Lab Services response already
set forth factors and standards for determining  fungibility, despite what is stated in the last paragraph of page
one):

     [F]ungibility would be appropriate for steel products
     that meet the same ASTM specification, form (coil for
     coil), treatment (oil tempered for oil tempered), type,
     grade, gauge diameter, width, coating, and any other
     physical parameter stated in the ASTM specification.

        Furthermore, in order to determine if the products
     are fungible, it will be necessary that their elemental
     analysis conform to the following two criteria:

          1. If an element is listed in the ASTM
          specification, concentration must conform to
          allowable levels.

          2. All elements that are not listed in the
          ASTM specification must appear in essentially
          the same concentration in all fungible lots.

     Please review the Lab Services memorandum (and attached
note).  It is self-explanatory.  The criteria provided can be
applied to the submitted applications, as well as to applications
submitted in the future.  Note that the imported and domestic
merchandise must exhibit the same ASTM specification, physical
form, and elemental composition.  Where ranges provided by
applicants present problems in determining fungibility,
Headquarters can be consulted.

     If you have any additional questions, please contact this
office.

                               Sincerely,




                               John Durant, Director
                               Commercial Rulings Division