DRA-4 RR:CR:DR 228519 EAB
Mr. Fred Larian
Micro Games of America
16730 Schoenborn Street
North Hills, California 91343-6122
Re: High fidelity recording tape media, cordless telephones, personal cassette players with AM/FM radio and headphone; 19 U.S.C. 1313(j)(2); direct identification unused substituted merchandise drawback
Dear Mr. Larian:
This is in response to your overall request on behalf of ABC Int'l [sic] Traders Inc. for a ruling concerning a potential claim for unused substituted merchandise drawback with respect to certain electronic goods and related merchandise imported and exported by same.
Specifically, on July 23, 1999, in correspondence to this Office you requested a "determination of commercial interchangeability" regarding an "imported" Sanyo MGR-63 and an "exported" Sanyo MGR-72, each of which is a combination AM/FM stereo receiver and cassette player. By separate packet, you also requested a "determination of commercial interchangeability" regarding certain cordless telephones identified as an "imported" "Super-Compander Noise Reduction" Sanyo CLT-8801 and an "exported" "Super-Compander II Noise Reduction" Sanyo CLT-3600. You made another request for a "determination of commercial interchangeability" for certain other cordless telephones identified as an "imported" "Compander Noise Reduction" Sanyo CLT8201 and an exported "Super Compander II Noise Reduction" Sanyo CLT3300. Under cover of a fourth letter dated July 23, 1999, you requested a "determination of commercial interchangeability" for magnetic audio recording media (tapes) identified as Sony EF-60 imported by ABC Int'l Traders and Sony HF-60, made in the USA, Maxell UR-60, made in Mexico and TDK D-60, made in the USA, each to be exported under claim/s for drawback against the duties paid on the Sony EF-60, also Sony EF-90 imported by ABC Int'l Traders and Sony HF-90, made in the USA and TDK D-90, made in the USA, each to be exported under claim/s for drawback against the duties paid on the Sony EF-90.
No unused merchandise drawback claims have been filed with Customs; accordingly, this issue is properly before this office as a prospective ruling request under 19 C.F.R. 177.1(d)(1). See 19 C.F.R. 177.1(a).
FACTS:
Regarding the AM/FM/cassette players, you advised Customs that each is classifiable in subheading 8527.11.1100, Harmonized Tariff Schedule of the United States (HTSUS).
Pursuant to the Mod Act, we will presume, for purposes of this decision, that the classification that you have submitted for the cassette players, above, and the cordless telephones and tapes, below, is accurate.
In your cover letter you stated, "Differences: Model number, cosmetics/styling. Similarities: Personal cassette players with AM/FM radio and headphones, with similar functions." Enclosed were Xerox-type copies of respective catalogue pages for each item; thus:
Feature MGR-63 (IM) MGR-72 (EX)
3-button transport yes yes
locking fast forward yes yes
FM stereo indicator glows LED
auto stop @ end of tape yes yes
stereo headphones (l/w & adj) yes yes
belt clip, detachable yes yes
AC/DC (2 AA) operability yes yes
While the copied catalogue pages fail to present relatively sharp images revealing the fine points of apparent functions and features, we can see the transport buttons juxtaposed in a line along the right-side panel of the device, the AM/FM radio scales placed horizontally along the top of the face panel, near the bottom of which is located a viewing window through which the tape may be observed; furthermore, the headphones displayed with the units appear to be substantially identical with respect to materials and construction. Apparently neither device has a recording feature - nothing of such a feature is mentioned and there does not appear a transport button or combination of buttons that would activate such a feature. No details have been provided regarding the physical parameters of either unit, such as the length, width and height dimensions and the weight (with and without batteries) of either device.
Regarding the first pair of cordless telephones, you advised Customs that each is classifiable in the same subheading of the HTSUS. In your cover letter you stated, "Differences: Model number, cosmetics/styling. Similarities: Cordless phones with similar functions." Enclosed were Xerox-type copies of respective catalogue pages for each item; thus, inter alia:
Feature CLT8801 (IM) CLT3600 (EX)
base, wall or desk mount yes yes
base keypad yes yes
base ringer control hi/lo on/off
handset, stand alone no yes
handset, rubber antenna fixed retractable
handset ringer control on/off on/off
handset keypad illuminated dark
speed dial (numbers/digits) 20/16 10/16
10-channel scan automatic manual
speakerphone w/ vol. ctrl. yes unknown
digital security codes 256 (auto) 256 (auto)
2-way IC & paging yes yes
hold feature yes yes
Out-of-Range signal yes unknown
Function keys (redial, scan,
flash, memory, etc.) yes yes
Receiver vol. switch yes no
Replaceable NiCd battery yes yes
Tone/pulse switchable yes yes
Instant tone no yes
LED indicators (In-use,
charging, batt., etc.) yes yes
Hearing aid compatible no yes
While the copied catalogue pages fail to present relatively sharp images revealing the fine points of apparent functions and features, we can see "cosmetics/styling" differences between the two cordless telephone units, some of which are noted in the respective catalogue pages. For example, the CLT8801 handset is not a stand alone unit, whereas the CLT3600 is; the CLT8801 handset has a rubber sheathed antenna that extends from the top panel of the handset at a fixed length almost the length of the handset unit itself, whereas the CLT3600 handset employs a retractable rubber sheathed antenna that, when retracted, extends perhaps merely one inch from the top panel of the handset. The CLT8801 handset appears longer and slimmer than does the CLT3600 handset. The "dialing" keys on the CLT8801 handset and base are round, but the same keys on the CLT3600 are oval, elongated along the horizontal axis. The CLT8801 base unit has a display panel (possibly of LED type) above the keypad on the right-side half of the unit and the speaker is in the middle of the left-side half of the unit, so that the cradled handset covers the base unit speaker. The CLT3600 base unit has no display panel and the speaker is above the keypad on the right-side half of the unit, which design does not obscure the base unit speaker when the CLT3600 hand set is cradled. No details have been provided regarding the physical parameters of either unit, such as the length, width and height of the base/s and the weight of either handset, or of each cordless telephone as a whole.
Regarding the second pair of cordless telephones, you advised Customs that each is classifiable in the same subheading of the HTSUS. In your cover letter you stated, "Differences: Model number, cosmetics/styling. Similarities: Cordless phones with similar functions." Enclosed were Xerox-type copies of respective catalogue pages for each item; thus, inter alia:
Feature CLT8201 (IM) CLT3300 (EX)
base, wall or desk mount yes yes
base keypad no no
base ringer control no no
handset, stand alone no yes
handset, rubber antenna fixed retractable
handset control on/off/vol. on/off
handset keypad dark dark
speed dial (numbers/digits) 9/16 10/16
channel scan unknown 10 channel
speakerphone w/ vol. ctrl. unknown unknown
digital security codes stated 256 (auto)
IC & paging 2-way 1-way page
hold feature unknown unknown
Out-of-Range signal yes unknown
Function keys (redial, scan,
flash, memory, etc.) yes yes
Replaceable NiCd battery yes yes
Tone/pulse switchable yes yes
Instant tone no yes
LED indicators in-use/chrg in-use/chrg/
low batt./talk
Hearing aid compatible no yes
While the copied catalogue pages fail to present relatively sharp images revealing the fine points of apparent functions and features, we can see "cosmetics/styling" differences between the two cordless telephone units, some of which are noted in the respective catalogue pages. For example, the CLT8201 handset is not a stand alone unit, whereas the CLT3300 is; the CLT8201 handset has a rubber sheathed antenna that extends from the top panel of the handset at a fixed length almost the length of the handset unit itself, whereas the CLT3300 handset employs a retractable rubber sheathed antenna that, when retracted, extends perhaps merely one inch from the top panel of the handset. The CLT8201 handset appears longer and slimmer than does the CLT3300 handset. The "dialing" keys on the CLT8201 handset are round, but the same keys on the CLT3300 are oval, elongated along the horizontal axis. The CLT8201 base unit has a speaker in the middle of the left-side half of the unit, so that the cradled handset covers the base unit speaker. The CLT3300 base unit has no speaker in the base and paging is by button only. No details have been provided regarding the physical parameters of either unit, such as the length, width and height of the base/s and the weight of either handset, or of each cordless telephone as a whole.
Regarding the tapes, you advised Customs that all are classifiable in the same subheading of the HTSUS. In your cover letter you stated, "Differences: Model number, country of origin, brand (only where Maxell or TDK products are exported). Similarities: same length (60 or 90 minute) autio tapes, type I normal bias 120 µs EQ, same frequency response." Enclosed were samples of most, but not each, of the tapes, apparently packaged for retail sale. From the disclosures on the packaging, we observe that the Sony EF-60, Sony HF-60, Maxell UR-60 and TDK D90 share the same properties: IEC Type I (normal) position and bias of 120µs EQ.
On September 14, 1999, this Office corresponded with you regarding your original submission. Therein we wrote, in part, as follows:
. . . During [a] telephone conversation [on July 28, 1999], . . . it became apparent that the process of qualifying for a 1313(j)(2) drawback claim was not clear to you, [and] you were offered copies of two recent Customs Headquarters Rulings, . . . urged to familiarize yourself with these headquarters decisions, and to contract a broker who might assist you in properly filing your request for a ruling.
On August 3, 1999 and on August 10, 1999, you informed Customs that you had read these decisions, understood them, and wanted Customs to keep your present file open while you gathered supplementary documentation. You also stated that you had now engaged a knowledgeable Customs broker to assist you . . . . At present, the file remains open although it has been determined to be non-conforming pursuant to Customs Regulations 19 C.F.R § 177.3. You are therefore given thirty (30) days notice to supply the additional information requested or otherwise conform your ruling request to the requirements referred to in this notice, the regulations, and the statute.
You supplemented the original submissions in correspondence dated October 26, 1999, under cover of which were enclosed copies of multiple, discrete entry and export document packets. A typical entry packet in your supplemental submission consists of copies of each of the following documents: entry summary (Customs Form 7501), commercial invoice and manufacturing drawback entry and certificate of delivery (Customs Form 331). A typical export packet in your supplemental submission consists of copies of each of the following documents: a commercial invoice representative of a sale to a foreign purchaser, a packing list and a bill of lading.
ISSUE:
Whether exported cassette tapes, cordless telephones and AM/FM/cassette players are commercially interchangeable with such previously imported merchandise for purposes of unused substituted merchandise drawback under 19 U.S.C. 1313(j)(2).
LAW AND ANALYSIS:
CONFIDENTIALITY
While your original submission and the supplement thereto are silent on the matter, we note that importing and exporting invoices contain unit and extension prices for the listed merchandise.
As provided for in § 177.2(b)(7), Customs Regulations (19 CFR 177.2(b)(7)) concerning “privileged or confidential information”:
Information which is claimed to constitute trade secrets or privileged or confidential commercial or financial information regarding the business transactions of private parties the disclosure of which would cause substantial harm to the competitive position of the person making the request (or of another interested party), must be identified clearly and the reasons such information should not be disclosed, including, where applicable, the reasons the disclosure of the information would prejudice the competitive position of the person making the request (or of another interested party) must be set forth.
It has long been the position of the Customs Service that a 19 CFR 177.2(b)(7) grant of confidentiality is coterminous with Exemption 4 of the Freedom of Information Act (5 U.S.C. 552). Exemption 4 was enacted to protect from disclosure information such as customer lists, costs, identities of suppliers, quantities of merchandise, formulas, assets, profits, losses, market shares, and similar information, the disclosure of which would inure to the competitive disadvantage of the party providing information.
We have determined independently that the pricing information constitutes trade secrets or privileged or confidential information. Accordingly, this ruling contains none of the prices set out anywhere in the documentation that constitute your original submission and the supplement thereto; that information will not be disclosed except in accordance with the Freedom of Information Act (5 U.S.C. 552) and Part 103, Customs Regulations (19 CFR Part 103), concerning the availability of information.
DRAWBACK
For purposes of this decision we note that 19 U.S.C. 1313(j)(2), provides, in part, that direct identification substituted unused merchandise 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 substituted merchandise must be exported within three (3) years from the date of importation of the imported merchandise; the substituted merchandise must not have been used in the US prior to exportation therefrom; 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 statute does not define "commercially interchangeable".
The drawback statute was substantively amended by § 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. Before enacted as amended, the statute provided, inter alia, for drawback upon fungible goods. 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: ". . . 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 Customs Regulations (19 C.F.R. 191.2(l)). The House Report further 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.
We shall apply the foregoing criteria to the merchandise at issue to determine if the devices and products are commercially interchangeable for purposes of substituted unused merchandise drawback.
I. AM/FM/Cassette players
A. Government and Industry Standards
The Federal Communications Commission advises that the "radio spectrum is the part of the natural spectrum of electromagnetic radiation lying between the frequency limits of 9 kilohertz and 300 gigahertz. See http://www.fcc.gov/oet/spectrum/. In the supplement, dated October 26, 1999, to this application for a determination of commercial interchangeability, it is stated, in part, that "all radios must meet FCC standards on emissions and interference with other devices. The imported and exported items complied with the same FCC regulations and standards. There is no recognized industry standard on personal portable stereos."
No documentation has been submitted to this Office in support of the claim that the imported and exported players meet the same FCC standards. That the players may, in fact, be sold, is not proof of compliance; that the players are stated to comply with the same FCC regulations is insufficient proof of compliance.
B. Part numbers
Obviously, whereas the part numbers are different, the difference fails to support the claim. We note, however, that it is standard practice for manufacturers to model years and minor product differences with different part numbers. Regrettably, no explanation, for example, for marketing purposes, is offered for different part/model numbers for the imported and exported players.
C. Tariff Classification
It is claimed that the imported and exported players are classifiable in the same subheading of the HTSUS, and are, therefore, commercially interchangeable. Identity of classification is but one element of the equation, and not dispositive in and of itself. We note, in this regard, that raccoon, sable and beaver fur coats are all classifiable in subheading 4303.10.0060, HTSUS, and they are in no sense commercially interchangeable. See also subheading 8703.23.0010, HTSUS, motor vehicles principally designed for the transport of (fewer than 10) persons, spark-ignition internal combustion reciprocating piston engine of a cylinder capacity exceeding 1,500 cc but not exceeding 3,000 cc, motor homes.
Seven import entry papers were provided: two for entries during calendar year 1988, two for 1989, one for 1990 and two for 1993. Nine export invoices were provided: three for 1991, three for 1992 and three for 1993. This evidence poses a few problems. First, under the statute, the export must occur within three years after the importation. See 19 U.S.C. 1313(j)(2)(B). Second, none of the seven import entries identify the Sanyo import model that is to be designated for purposes of drawback; in fact, only the November 9, 1993 importation (entry 275-NNNN077-N) covers the importation of an item classifiable under subheading 8527.11.11, HTSUS. However, the merchandise on that line cannot be matched to any of the accompanying invoices. Third, none of the export documents refer to an HTSUS number or a Schedule B number for the goods involved. See 83 F.R. 10978 (March 5, 1998) with respect to 19 C.F.R. 191.32(o). The evidence fails to show compliance with this element.
D. Relative Values
According to the supplemental documentation:
The import price on the MGR-63 is [$]. The import prices do not include freight, duties, insurance, and Sanyo's markup. Our price from Sanyo was [$]. The export price on MGR-72 was between [$] and [$] ([see] invoices [enclosed]). Some of the export prices may include insurance, and air/sea/land freight. The invoice copies reflect who paid these charges.
Invoice 164274, for example, covers, in particular, "SAN MGR-72 BOX AM/FM CASSETE HEADP" and "SAN MGR-72 AM/FM /BLT CLIP". Assuming, to the most liberal extent possible for the benefit of the applicant, that each of the foregoing units is identical to each other and to the Sanyo MGR72 or Sanyo MGR-72 (see original submission), we note that they bear the same unit price on that invoice, which invoice also indicates "Freight 0.00". On invoice 161550, the SAN MGR-72 AM/FM BLT CLIP carries a unit price that is nearly 7.6 % higher than on invoice 164274. This difference is present notwithstanding that the shipments were both to destinations in Spain and made only three (3) months apart. Nothing on either invoice and no documentation attached to either invoice identifies entries of merchandise qualified for drawback, therefore we can make no determination of the relative value of the imported goods and the exported goods. Finally, with respect to the entry documentation submitted with the October 26, 1999 correspondence, we note the following: entry 275-NNNN077-N sets out "RAD/CASS TAPE PLAYERS, STEREO" on line 001, then "HEADPHONES/EARPHONES, ETC,OTHER" on line 004, yet the invoice attached thereto identifies, among other items, a "MINI MONO CASSETTE PLAYER COMPLETE WITH HEADPHONE".
Based upon what is before us, this Office cannot determine the relative values of the imported merchandise and the exported merchandise; therefore, the commercial interchangeability of the MGR-72 with the MGR-63 cannot be tested at this time by comparison of the relative values of each unit.
II. Cordless Telephones, CLT8801 and CLT3600
A. Government and Industry Standards
The Federal Communications Commission regulates the frequencies of cordless telephones, including frequencies near 49 Mhz. According to the supplemental correspondence, "both cordless phones [operate] on the 49MHZ frequency.
No documentation has been submitted to this Office in support of the claim that the imported and exported cordless telephones meet the same FCC standards. That they may, in fact, be sold, is not proof of compliance; that the cordless telephones are stated to comply with the same FCC regulations is insufficient proof of compliance.
B. Part numbers
Again it is obvious that the part numbers differ between the cordless telephone imported and the cordless telephone exported. We note from the original submission that the difference in model number may be attributed to "cosmetics/styling", in that the units are similar, being "cordless phones with similar functions." While there are many similar functions between the two units, many of the similarities are critical if not essential functions; for example, each unit is tone/pulse switchable, each has 256 digital security codes, each has 10 channel scanning, each has 2-way intercom and paging and a hold feature. In many other critical, if not essential features, the units are quite different: the 3600 stores only 10 speed dial numbers whereas the 8801 stores 20; the 3600 channel scanning is manual and the 8801 is automatic; of the two, only the 3600 has the stand alone handset; the 3600 is hearing aid compatible, but the 8801 is not.
From the documentation before us, we find that the part numbers are different because the cordless telephones are themselves different from each other and are not commercially interchangeable under this element.
C. Tariff Classification
Although it is asserted in the original submission that the Sanyo CLT8801 and CLT3600 cordless telephones are classifiable under the same HTSUS subheading (8523.12.0010), we find no HTSUS or Schedule B numbers in the export documents. The evidence fails to show compliance with this element.
D. Relative Values
According to the supplemental documentation:
The import price on the CLT8801 ranges from [$] to [$] (entries [A, B and C]. The import prices do not include freight, duties, insurance, and Sanyo's markup. Our price from Sanyo was [$]. The export price on CLT3600 was between [$] and [$] ([see] invoices [enclosed]). Some of the export prices may include insurance, and air/sea/land freight. The invoice copies reflect who paid these charges.
Export invoice 167720, for example, covers, in particular, "SAN CLT3600 at the unit price of [$], which invoice also indicates "Freight 0.00". On invoice 164952, the SAN CLT3600 carries a unit price that is approximately 10 % higher than on invoice 167720. Invoice 159994 has a unit price more than 13 % higher than that of invoice 167720. This difference is present notwithstanding that the shipments were to France, Italy and Switzerland during 1992. Nothing on any of the invoices and no documentation attached to any of them identify entries of merchandise qualified for drawback, therefore we can make no determination of the relative value of the imported goods and the exported goods. Finally, with respect to the entry documentation submitted with the October 26, 1999 correspondence, we note the following: entry 110-NNNN076-N concerns 4000 cordless telephones, to which entry is attached an invoice concerning, in part 500 CLT8801 units, the unit price of which is nearly 22.4 % higher than the unit cost set out in invoice 167720.
Without an explanation of why the exporter would sell allegedly similar units at what appears to be a loss of as much as nearly 25 % per unit, we find that the cordless telephone units are not commercially interchangeable.
III. Cordless Telephones, CLT8201 and CLT3300
A. Government and Industry Standards
The Federal Communications Commission regulates the frequencies of cordless telephones, including frequencies near 49 Mhz. According to the supplemental correspondence, "both cordless phones [operate] on the 49MHZ frequency.
No documentation has been submitted to this Office in support of the claim that the imported and exported cordless telephones meet the same FCC standards. That they may, in fact, be sold, is not proof of compliance; that the cordless telephones are stated to comply with the same FCC regulations is insufficient proof of compliance.
B. Part numbers
Yet again it is obvious that the part numbers differ between the cordless telephone imported and the cordless telephone exported. We note from the original submission that the difference in model number may be attributed to "cosmetics/styling", in that the units are similar, being "cordless phones with similar functions." While there are many similar functions between the two units, many of the similarities are critical if not essential functions; for example, each unit is tone/pulse switchable, each has digital security codes, each has channel scanning, each has intercom and paging featured. In many other critical, if not essential features, the units are quite different: the 3300 stores 10 speed dial numbers whereas the 8201 stores 9; the 3300 has no intercom and only 1-way paging, whereas the 8201 has 2-way IC and paging; the 8201 has instant tone but the 3300 does not; the 3300 is hearing aid compatible, but the 8201 is not.
From the documentation before us, we find that the part numbers are different because the cordless telephones are themselves different from each other and are not commercially interchangeable under this element.
C. Tariff Classification
Although it is asserted in the original submission that the Sanyo CLT8201 and CLT3300 cordless telephones are classifiable under the same HTSUS subheading, we find no HTSUS or Schedule B numbers in the export documents. The evidence fails to show compliance with this element.
D. Relative Values
According to the supplemental documentation:
The import price on the CLT8201 ranges from [$] to [$] (entries [A, B and C]. The import prices do not include freight, duties, insurance, and Sanyo's markup. Our price from Sanyo was [$]. The export price on CLT3300 was between [$] and [$] ([see] invoices [enclosed]). Some of the export prices may include insurance, and air/sea/land freight. The invoice copies reflect who paid these charges.
Export invoice 167720, for example, covers, in particular, "SAN CLT3300 at the unit price of [$], which invoice also indicates "Freight 0.00". On invoice 164952, the SAN CLT3600 carries a unit price that is approximately 11 % higher than on invoice 167720. Invoice 159994 has a unit price more than 17 % higher than that of invoice 167720. This difference is present notwithstanding that the shipments were to France, Italy and Switzerland during 1992. Nothing on any of the invoices and no documentation attached to any of them identify entries of merchandise qualified for drawback, therefore we can make no determination of the relative value of the imported goods and the exported goods. Finally, with respect to the entry documentation submitted with the October 26, 1999 correspondence, we note the following: entry 110-NNNN076-N concerns 4000 cordless telephones, to which entry is attached an invoice concerning, in part, 3000 CLT8201 units, the unit price of which is nearly 22.4 % higher than the unit cost set out in invoice 167720.
Without an explanation of why the exporter would sell allegedly similar units at what appears to be a loss of as much as nearly 25 % per unit, we find that the cordless telephone units are not commercially interchangeable.
IV. Cassette tapes
A. Government and Industry Standards
Each sample is marked with the similar labeling, all of which indicate that the individual tapes conform to IEC Type I Normal Position, with a playback equalization of 120µs (microseconds). The IEC is the International Electrotechnical Commission and is the global organization that prepares and publishes international standards for all electrical, electronic and related technologies. We find that each tape conforms to the same industry standard and meets this test of commercial interchangeability.
B. Part numbers
The differing part numbers presented are not so much indicative of different physical properties or different uses of each tape relative to or in comparison with any of the other tapes, but simple branding, with the exception that some tapes marked with the "60" are to be expected to play for 60 minutes while tapes marked with "90" are expected to play for 90 minutes. This latter fact is not a distinction without a difference. To the contrary, the difference in playing times, with one tape playing 50 % longer than the other, is dramatic; while an individual could purchase and use a 90 minute tape for a 60 minute application, any application in excess of 60 minutes (and not longer than 90 minutes, of course) would require the purchase and use of two 60-minute tapes. We find that the different part numbers demonstrate a lack of commercial interchangeability of the tapes.
C. Tariff Classification
Although it is asserted in the original submission that the various brands and lengths of tapes are all classifiable under the same HTSUS subheading, we find no HTSUS or Schedule B numbers in the export documents. The evidence fails to show compliance with this element of commercial interchangeability.
D. Relative Values
Export invoice 167720, for example, covers, in particular, "SAN CLT3300 at the unit price of [$], which invoice also indicates "Freight 0.00". On invoice 164952, the SAN CLT3600 carries a unit price that is approximately 11 % higher than on invoice 167720. Invoice 159994 has a unit price more than 17 % higher than that of invoice 167720. This difference is present notwithstanding that the shipments were to France, Italy and Switzerland during 1992. Nothing on any of the invoices and no documentation attached any of them identifies entries of merchandise qualified for drawback, therefore we can make no determination of the relative value of the imported goods and the exported goods. Finally, with respect to the entry documentation submitted with the October 26, 1999 correspondence, we note the following: entry 468-NNNN667-N concerns 90 minute tapes at a unit price of $0.61; entry 468-NNNN795-N concerns 60 minutes tapes at a unit price of $0.48; entry 468-NNNN385-N concerns more 60-minute tapes at a unit price of $0.51; finally, entry 996-NNNN740-N concerns 60-minute tapes at a unit price of $0.41. Export invoices indicate that similar tapes were all sold at costs proportionately higher that at the imported costs. We find that the tapes are not commercially interchangeable under this criterion.
HOLDING:
Cassette tapes, cordless telephones and AM/FM/Cassette stereo players are not commercially interchangeable and may not be substituted for purposes of drawback under 19 U.S.C. 1313(j)(2).
Sincerely,
William G. Rosoff, for John A. Durant, Director
Commercial Rulings Division