DRA-4-CO:R:C:E 224659 CB

George C. Steuart, Esq.
Steuart & Parker
Suite 300
1919 Pennsylvania Avenue, N.W.
Washington, D.C. 20006

RE: Christopher Ranch request for fungibility of white garlic and red garlic; 19 U.S.C. 1313(j)(2); substitution same condition drawback; 7 CFR 51.3880

Dear Mr. Steuart:

This is in response to your letter of April 14, 1993, transmitting a request on the fungibility of white and red garlic. Initially, we must point out that the ruling request also requests approval to file claims under the accelerated drawback payment program and permission to use the exporter's summary procedure. Please advise your client that such requests must be directed to the regional commissioner pursuant to 19 CFR 191.72 and 191.53, respectively. FACTS:

According to the incoming letter, your client, Christopher Ranch, intends to substitute foreign and domestic white and red garlic. The incoming letter does not state whether the request is limited to the substitution of fresh garlic. However, we have assumed that the request pertains solely to fresh garlic and, therefore, our ruling is limited to the issue of substitution of fresh garlic.

Additionally, the ruling request is also silent regarding the issue of packaging. Therefore, for purposes of issuing this ruling we are assuming that the imported and domestic garlic are packed in the same manner.

ISSUE:

Whether fresh white and red imported grade U.S. No. 1 garlic is fungible with domestic grade U.S. No. 1 garlic packed in the same manner?

LAW AND ANALYSIS:

Section 313(j)(2) of the Tariff Act of 1930, as amended (19 U.S.C. 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.

Fungibility is defined in the Customs Regulations as "merchandise which for commercial purposes is identical and interchangeable in all situations." 19 CFR 191.2(1). 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. See C.S.D. 85-52.

The Customs Service has consistently used the standards of quality grades of the United States Department of Agriculture (USDA) as guidelines for determining fungibility with respect to agricultural products. As stated in C.S.D. 89-108, the use of USDA quality standards are satisfactory for our use as "guidelines" for determining whether imported designated merchandise and substituted merchandise are identical for substitution same condition drawback purposes. Regarding the fungibility requirements for vegetables, Customs has stated that substitution must be on a grade for grade basis. See C.S.D. 89-126, HQ 224068 (July 31, 1992), and HQ 224223 (March 6, 1992).

In the instant case, your client has stated that it buys and sells garlic on the basis of USDA grades and standards. Your client has also stated that it intends to substitute on a grade for grade basis, i.e. Grade U.S. No. 1 white garlic for Grade U.S. No. 1 white garlic. Additionally, Christopher Ranch has also stated that it does not differentiate between domestic grown garlic and imported garlic when filling an order and that its records will show this fact. Therefore, the proposed substitution of garlic meets the fungibility requirement established by Customs for vegetables, i.e. that substitution be on a grade-for-grade basis. See C.S.D.s 89-108 and 89-126.

HOLDING:

Imported duty-paid white and red garlic of USDA grade No. 1 are fungible with domestic white and red garlic of USDA grade

No. 1. Substitution must be on a grade for grade, color for color basis and the merchandise must be similarly packed.

Sincerely,

John Durant, Director
Commercial Rulings Division