OT:RR:CTF:EPDR   H350619 SAB      
   The rate of duty is zero percent ad valorem for subheading 7102.39.00, HTSUS. ITM states that   the diamonds will not be “subject to any operations or combinations of operations amounting to   manufacture or production” and will only be “imported, inspected[,] and exported.” ITM asserts   that although at the 8-digit level the article description for subheading 7102.39.00, HTSUS,   begins with the term “Other,” drawback eligibility is not precluded under 19 U.S.C. § 1313(j)(5)   because “when we proceed to the ten-digit level the article description does not begin with   other.” ITM posits that the article description for SRNs 7102.39.0010 and 7102.39.0050 begins   with the word “Weighing.” Accordingly, ITM seeks confirmation that diamonds which are   classifiable at the 10-digit level under SRNs 7102.39.0010 or 7102.39.0050 of the HTSUS are   eligible for substitution unused merchandise drawback.      ISSUE:        Whether certain diamonds are precluded from substitution unused merchandise drawback   pursuant to 19 U.S.C. § 1313(j)(5).       LAW AND ANALYSIS:        Drawback “means the refund, in whole or in part, of the duties, taxes, and/or fees paid on   imported merchandise.” 19 C.F.R. § 190.2. Pursuant to 19 U.S.C. § 1313(j)(2), as amended by   the Trade Facilitation and Trade Enforcement Act of 2015 (“TFTEA”), Pub. L. 114-125, 130   Stat. 122 (Feb. 24, 2016), drawback may be claimed on exported merchandise which is   substituted for imported and duty-paid merchandise. In order to claim substituted unused   merchandise drawback under 19 U.S.C. § 1313(j)(2), there must be:       [I]mported merchandise on which was paid any duty, tax, or fee imposed under   Federal law upon entry or importation, any other merchandise (whether imported   or domestic), that—      (A) is classifiable under the same 8-digit HTS subheading number as such   imported merchandise.       However, substitution is statutorily limited in circumstances where the applicable 8-digit   subheading for the imported and substituted merchandise has an article description that   begins with the word “Other.” Pursuant to 19 U.S.C. § 1313(j)(5):      (A) For purposes of [19 U.S.C. § 1313(j)(2)] and except as provided in   subparagraph (B), merchandise may not be substituted for imported merchandise   for drawback purposes based on the 8-digit HTS subheading number if the article   description for the 8-digit HTS subheading number under which the imported   merchandise is classified begins with the term “other”.      (B) In cases described in subparagraph (A), merchandise may be   substituted for imported merchandise for drawback purposes if—      2     
(i) the other merchandise and such imported merchandise are   classifiable under the same 10-digit HTS statistical reporting   number; and       (ii) the article description for that 10-digit HTS statistical reporting   number does not begin with the term “other”.       Accordingly, goods may only be substituted for imported merchandise if the substituted   goods are classifiable under the same 8-digit subheading as the imported merchandise. See 19   U.S.C. § 1313(j)(2)(A). However, eligibility is limited by the article description rule described in   19 U.S.C. § 1313(j)(5), which can be termed the “Other Other” Rule. See e.g. Headquarters   Ruling Letter (“HQ”) H303399 (Mar. 10, 2020) (“the ‘other other’ restriction found under 19   U.S.C. § 1313(j)(5)”); 83 Fed. Reg. 64942 (Dec. 19, 2018) (“the ‘other; other’ HTSUS limitation   for residual (or basket) provisions”).      The “Other Other” Rule precludes goods from substitution drawback eligibility if the   article description at the 8-digit subheading level begins with the term “Other,” unless the two   criteria specified in 19 U.S.C. § 1313(j)(5)(B) are satisfied. The first criteria is that the imported   merchandise and substituted goods are classified under the same 10-digit SRN within the   HTSUS. 19 U.S.C. § 1313(j)(5)(B)(i). The second criteria is that the article description for this   shared 10-digit SRN does not begin with the term “Other.” 19 U.S.C. § 1313(j)(5)(B)(ii); see   also Spirit Aerosystems, Inc. v. United States, 680 F. Supp. 3d 1329, 1337 (Ct. Int’l Trade 2024)   (“Spirit Aerosystems”) (“substituted unused merchandise drawback is inapplicable unless . . . the   article description for that 10-digit HTSUS SRN does not begin with the term ‘other.’”).          To determine whether, at the 8-digit and 10-digit level, the article description for a   subheading or SRN begins with the word “Other” we must first identify precisely where the text   of an article description commences. This specific issue was addressed by the Court of   International Trade in Spirit Aerosystems. According to the General Statistical Notes of the   HTSUS, the legally binding subheading information is contained in the eight-digits preceding the   two-digit SRN suffix. General Statistical Note 3(a), HTSUS (2025). The court explained that, to   ensure every good falls into one classification in the schedule, the HTSUS has catchall article   descriptions for both 8-digit subheadings and 10-digit SRNs which begin with or consist of the   word “Other” – such classifications are commonly referred to as “basket provisions.” See Spirit   Aerosystems, 680 F. Supp. 3d at 1333.       The HTSUS also contains “unattached unifying language,” which, the court clarified,   constitutes prefatory language that necessarily refers to more than one 10-digit SRN if it   precedes multiple 10-digit SRNs. Id. at 1337-38. Such “unattached unifying language” may   appear in the HTSUS column titled “Article Description” but is not placed directly alongside   numerical headings, subheadings, or SRNs. Id. Based on the statutory language of 19 U.S.C. §   1313(j)(5), which requires identifying the article description for a specific 10-digit SRN, the   court found that only the text directly adjacent to, or appearing on the exact “same line and level   of the”10-digit SRN, constitutes the article description “for that” specific SRN. Id. at 1337   (quoting 19 U.S.C. § 1313(j)(5)) (emphasis added). Therefore, any unattached unifying language   3     
is not considered a part of the article description for drawback purposes, and the dispositive   article description must appear on the same line and level as a specific 10-digit SRN.         CBP has also considered how the “Other Other” Rule affects drawback eligibility. In HQ   H303399, CBP considered the substitution unused merchandise drawback eligibility of gas   turbines classified under subheadings 8411.81.80 and 8411.82.80 of the HTSUS, both of which   have an article description which begins with the word “Other” at the 8-digit level. In identifying   precisely where the article description for the 8-digit subheading commences, CBP looked to the   text directly adjacent to, and appearing on the same exact line as, the subheading at issue. In that   case, the HTSUS did not further subdivide the classification of either subheading into 10-digit   SRNs. CBP determined that because the 8-digit subheadings were basket provisions that were   not further subdivided into 10-digit SRNs such merchandise could not possibly satisfy the two   criteria specified in 19 U.S.C. § 1313(j)(5)(B). CBP explained that without further subdivision of   an 8-digit basket provision such a subheading “automatically remains a basket residual   provision, and substitution is prohibited under 19 U.S.C. § 1313(j)(5)[A].”        In this case, ITM states that the diamonds at issue are classifiable under the 8-digit   subheading 7102.39.00, HTSUS:      Nonindustrial:      7102.39.00        Other . . . . .      7102.39.0010          Weighing not over 0.5 carat each . . . . .       7102.39.0050          Weighing over 0.5 carat each . . . . .       Looking to the adjacent text appearing on the same line and level for this subheading, we find   that the article description at the 8-digit level begins with the word “Other.” Although the 8-digit   subheading is preceded by the term “Nonindustrial” such unattached unifying language is merely   prefatory language and is not part of the article description specific to the 8-digit subheading for   drawback purposes. See Spirit Aerosystems, 680 F. Supp. 3d. at 1337-38; HQ H303399 (finding   that the text “Other gas turbines” did not form part of the article description for subheadings   8411.81.80 and 8411.82.80, HTSUS). Unlike the turbines in HQ H303399, diamonds classifiable   under subheading 7102.29.00, HTSUS, can be further subdivided into 10-digit SRNs:   7102.139.0010 and 7102.39.0050. The text directly adjacent to, and appearing on the same line   and level, for each of these SRNs begins with the word “Weighing.” We thus find that the article   descriptions for both of these 10-digit SRNs does not begin with the word “Other.”         Imported and substituted diamonds which share a classification at the 8-digit level under   subheading 7102.39.00, HTSUS, are subject to the “Other Other” Rule because the article   description for this subheading begins with the word “Other.” Such diamonds are ineligible for   substitution unused merchandise drawback unless the two criteria specified in 19 U.S.C. §   1313(j)(5)(B) are satisfied. Subheading 7102.39.00, HTSUS, is further subdivided into 10-digit   SRNs: 7102.139.0010 and 7102.39.0050. The article description for these SRNs does not begin   with the word “Other.” Accordingly, we find that imported and substituted diamonds which share   4     
a classification at the 10-digit level under either of these SRNs satisfy both criteria under 19   U.S.C. § 1313(j)(5)(B) and are thus eligible for substitution unused merchandise drawback under   § 19 U.S.C. § 1313(j)(2).       HOLDING        Based on the above, we find that diamonds which are classifiable at the 8-digit level   under subheading 7102.39.00, HTSUS, are not precluded from substitution unused merchandise   drawback pursuant to 19 U.S.C. § 1313(j)(5) if they share a classification at the 10-digit level   under SRN 7102.139.0010 or 7102.39.0050 of the HTSUS.         Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is used on the   assumption that all the information furnished in connection with the ruling request and   incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and   complete in every material respect. The application of a ruling letter by [CBP] to the transaction   to which it is purported to relate is subject to the verification of the facts incorporated in the   ruling letter, a comparison of the transaction described therein to the actual transaction, and the   satisfaction of any conditions on which the ruling was based.”      
Sincerely,
            Kristina Frolova, Chief               Entry Process & Duty Refunds Branch      5