HQ 223377: Request for binding ruling concerning fungibility of "TYVEK"; 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 223377

                        November 20, 1991

DRA-1-09-CO:R:C:E 223377 CB

CATEGORY:  Entry/Drawback

Margaret T. Solinger, Esq.
E. I. Du Pont de Nemours & Company
Du Pont International Services
Concord Plaza - Read Building
Wilmington, Delaware 19898

RE:  Request for binding ruling concerning fungibility of
     "TYVEK"; 19 U.S.C. 1313(j)(2)

Dear Ms. Solinger:

     This is in response to your letter of July 25, 1991, wherein
you propose to modify your request for approval to file same
condition substitution drawback claims for "TYVEK" spunbonded
olefin.  "TYVEK" is a registered trademark of Du Pont.

FACTS:

     Du Pont seeks approval to substitute "TYVEK" on a style-for-
style basis, which would result in a weight variance of more than
one gram per square meter, but less than 20 grams per square
meter, as originally requested by Du Pont.  You believe that
"TYVEK" is fungible within each style number and substitution on
this basis should be approved.

     According to your submisssion, "TYVEK" spunbonded olefin is
a sheet product made from high-density polyethylene fibers,
offering characteristics that combine some of the qualities of
paper, film and cloth.  "TYVEK" is formed by a continuous process
in which very fine, 0.5-10 micrometer non-directional fibers
(plexifilaments) are first spun and then bonded together by heat
and pressure, without binders or fillers.  "TYVEK" is produced in
one "hard" and two "soft" structure types.  Type 10, a "hard"
structure, area-bonded product, is a smooth, stiff, non-
directional, paper-like substrate.  Types 14 and 16 are "soft"
structure, point-bonded products with an embossed pattern,
providing a fabric-like, flexible substrate.

     In a letter to the New York region, you requested that
substitution be allowed with a weight difference of no greater
than 20 grams per square meter, because of the wide divergence of

                               -2-


weight differences within each type of "TYVEK".  However, you
were advised by the Head Drawback Specialist in New York that
based on the information available to the office regarding
"TYVEK", substitution would not be allowed with a greater weight
difference.  You were advised to submit your request directly to
this office.

ISSUE:

     Whether a weight variance within a style destroys the
fungibility of "TYVEK" for same condition substitution drawback
purposes?

LAW AND ANALYSIS:

     Section 1313(j)(2) of Title 19 was enacted as section 202 of
the Trade and Tariff Act of 1984, Pub. L. No. 98-573, 98 Stat.
2948, 2973 (1984).  Section 1313(j)(2) provides that, for
substitution same condition drawback purposes, the merchandise
substituted for exportation must be fungible with the duty-paid
merchandise and in the same condition as was the imported
merchandise at the time of its importation.  In addition, the
statute requires other conditions under subsections
1313(j)(2)(B), (C) and (D), which we will presume will be met.
This ruling is limited to the issue of fungibility.

     Fungibility is defined in the Customs Regulations as
"merchandise which for commercial purposes is identical and
interchangeable in all situations."  19 CFR 191.2(a).  Customs
has interpreted fungibility as not requiring that merchandise be
precisely identical; identical for "commercial purposes" allows
some slight differences.  The key is complete commercial
interchangeability.  As stated in C.S.D. 85-52: "[t]he commercial
world consists of buyers, sellers, comminglers, government
agencies and others.  If these groups treat articles or
merchandise as fungible or commercially identical, the articles
or merchandise are fungible....  When two or more units of
apparently identical properties are treated differently by the
commercial world for any reason, they are not fungible."  19
Cust. Bull. 605, 607 (1985).

     You have stated, in your written request, that although each
style of "TYVEK" tolerates some weight variance, this does not
effect the commercial use of "TYVEK".  You also state that a
purchaser of "TYVEK" determines which style to obtain based on
the intended use.  "TYVEK" users do not perform any process to
further reduce the weight variance within a style.  In your
request you included specifications such as thickness, tensile,
etc.  We find that these specifications have characterized the
individual grades of "TYVEK" sufficiently to ensure
"fungibility".
                               -3-



HOLDING:

     A style-for-style, pound-for-pound substitution meets the
fungibility requirements for same condition drawback purposes
under 19 U.S.C. 1313(j)(2).  The one gram per square meter
requirement is rescinded.


                                   Sincerely,




                                   John A. Durant, Director
                                   Commercial Rulings Division