DRA-4-CO:R:C:E 224752 AJS

Deputy Regional Director
Commercial Operations
Pacific Region
U.S. Customs Service
One World Trade Center, Ste. 705
Long Beach, CA 90831-0700

RE: Protest for further review number 2809-92-100970; Same condition drawback; 19 U.S.C. 1313(j)(1); 19 U.S.C. 1313(j)(4); incidental operations; testing; C.S.D. 82-7; "manufacture or production"; Anheuser Busch v. U.S.

Dear Sir or Madame:

This is our decision in protest for further review number 2809-92-100970, dated May 27, 1992, concerning the issue of same condition drawback.

FACTS:

The subject merchandise consists of notebook computers for which the protestant seeks a refund under the same condition drawback law. These computer were sold to distributors of computer peripherals. After this sale, the computers were tested and evaluated by the distributors. The testing and evaluation involved the computers compatibility with software applications, hard disk drive performance, battery depletion rate, and reliability of the computers over a period of days. The computers did not perform these operations to the satisfaction or the specifications of the distributors and were returned to the protestant for a credit. It is claimed that the condition of the computers was not changed in any manner by this testing, and that the computers could be properly used again.

ISSUE:

Whether the subject computers were in the same condition upon exportation as importation within the meaning of 19 U.S.C. 1313(j)(1). More specifically, whether the subject operations performed on the computers constitute incidental operations within the meaning of 19 U.S.C. 1313(j)(4).

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LAW AND ANALYSIS:

19 U.S.C. 1313(j) provides that: (1) if imported merchandise, on which was paid any duty, tax, or fee imposed under Federal law because of its importation-

(A) is, before the close of the three-year period beginning on the date of importation-

(i) exported in the same condition as when imported, or

(ii) destroyed under Customs supervision; and

(B) is not used within the United States before such exportation or destruction;

then upon such exportation or destruction 99 per centum of the amount of each such duty, tax, and fee so paid shall be refunded as drawback. The specific issue in this case is whether the subject computers were used in the United States and thus ineligible for same condition drawback.

19 U.S.C. 1313(j)(4) partially provides that: the performing of incidental operations (including, but not limited to, testing, cleaning, repacking, and inspecting) on- (A) the imported merchandise itself in cases to which paragraph (1) applies,

that does not amount to manufacture or production for drawback purposes under the preceding provisions of this section shall not be treated as a use of that merchandise for purposes of applying paragraph (1)(B). The protestant argues that because the subject computers were merely tested by the distributors, that therefore they were subject to only incidental operations, and thus not used in the United States. In this case, the computers were subject to various types of tests to determine if they would operate to the distributor's satisfaction and specifications. These tests did not effect a change in the condition of the computers nor did the tests prevent them from being properly used again.

In C.S.D 82-7, we ruled that the testing and inspecting of television sets were incidental operations. Therefore, we conclude that the described testing of the subject computers is an incidental operation within the meaning of section 1313(j)(4) and did not change the condition of the computers in this instance.

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Section 1313(j)(4) requires that an incidental operation performed on an article also cannot amount to a "manufacture or production". A "manufacture or production" has been defined as a process which transforms an article into a new and different article with a different name, character or use. Anheuser Busch v. United States, 207 U.S. 556 (1907). In this instance, the testing of the computers did not transform them into a new and different article. After testing, the computers are still the same computers. Accordingly, the testing in question does not amount to a "manufacture or production" of the subject computers nor does the testing change the condition of the computers. Consequently, the computers are in the same condition upon exportation as importation within the meaning of section 1313(j)(1).

HOLDING:

The protest is granted. The subject computers are eligible for same condition drawback pursuant to 19 U.S.C. 1313(j)(1) because they were subject to only incidental operations and thus cannot be considered used within the United States before exportation.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.


Sincerely,


John Durant, Director
Commercial Rulings Division