[Federal Register Volume 59, Number 123 (Tuesday, June 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15527]


[Federal Register: June 28, 1994]


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DEPARTMENT OF THE TREASURY
Customs Service


Accounting Procedures for Drawback

AGENCY: U.S. Customs Service, Department of Treasury.

ACTION: Proposed Change of Position; solicitation of comments.

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SUMMARY: This notice advises the public that Customs proposes to amend 
the general drawback rate for crude petroleum and petroleum derivatives 
to permit first-in-first-out (FIFO) accounting for exports and drawback 
deliveries of petroleum products with different drawback factors which 
are commingled in inventory. Currently, such accounting is required on 
the basis of lower-to-higher drawback factors, and is not consistent 
with recent changes to the Customs Regulations in this regard or 
commercial accounting procedures. Additionally, Customs proposes to 
revoke a published ruling and any unpublished rulings to the same 
effect under which identification of merchandise and articles for 
drawback purposes is permitted on a higher-to-lower basis. This change 
is consistent with the Customs Regulations, commercial accounting 
procedures, and efficient administration and will result in revenue 
neutrality when drawback claimants choose to commingle merchandise or 
articles and to identify them by an accounting procedure.

DATES: Comments must be received on or before August 29, 1994.

ADDRESSES: Written comments (preferably in triplicate) may be addressed 
to the U.S. Customs Service, Office of Regulations and Rulings, 
Regulations Branch, 1301 Constitution Avenue, NW., Washington, DC 
20229. Comments filed may be inspected at the Regulations Branch, 
Franklin Court, 1099 14th Street, NW., Suite 4000, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Paul Hegland, Entry Rulings Branch, 
Office of Regulations and Rulings (202) 482-7040.

Background

    Section 313, Tariff Act of 1930, as amended (19 U.S.C. 1313), 
authorizes ``drawback''. Drawback is a refund or remission, in whole or 
in part, of a Customs duty, internal revenue tax, or fee. There are a 
number of different kinds of drawback authorized under law, including 
manufacturing and same condition drawback. Under paragraph (a) of 
Sec. 1313, drawback is authorized when imported merchandise is used in 
the manufacture of articles which are exported. Under paragraph (j)(1) 
of Sec. 1313, drawback is authorized when imported merchandise is 
exported (or destroyed) in the same condition as when it was imported, 
if the merchandise is not used in the U.S. Paragraphs (b) and (j)(2) of 
Sec. 1313 respectively provide for the substitution of domestic or 
other merchandise for the imported merchandise in manufacturing and 
same condition drawback. Paragraph (l) of Sec. 1313 provides that the 
allowance of drawback shall be subject to compliance with such rules 
and regulations as the Secretary of the Treasury shall prescribe.
    The Customs Regulations pertaining to drawback are found in Part 
191 of the Customs Regulations (19 CFR Part 191). Under the Customs 
Regulations (19 CFR Part 191, Subparts B and D), manufacturers or 
producers of articles intended for exportation with drawback under 
Sec. 1313(a) or (b) must apply for and obtain approval of a drawback 
contract (sometimes called a drawback ``rate'') describing the 
manufacturing or production operations covered and setting forth the 
conditions which are to be met to obtain drawback.
    The general requirements in the Customs Regulations for records, 
storage, and identification pertaining to drawback are found in 19 CFR 
191.22. Section 191.22(c) authorizes the identification for drawback 
purposes of commingled lots of fungible merchandise and articles by 
applying first-in-first-out (FIFO) accounting principles or any other 
accounting procedure approved by Customs.
    Section 191.22(c) was added to the Customs Regulations in its 
current form when the drawback regulations (formerly in Part 22 of the 
Customs Regulations) were revised in 1983 (T.D. 83-212, published in 
the Federal Register on October 14, 1983 (48 FR 46740)). Before this 
revision, the corresponding provision in Part 22 of the Customs 
Regulations (19 CFR 22.4(f)) permitted identification of fungible 
merchandise and articles commingled in storage on the basis of the lot 
or lots of merchandise or articles with the lowest drawback value or 
allowance first, then the next-lowest, and so on (i.e., ``lower-to-
higher'').
    The Notice of Proposed Revision of Part 22 (published in the 
Federal Register on August 26, 1982 (47 FR 37563)) would have limited 
the accounting method for identification of merchandise and articles 
commingled in storage to FIFO only (47 FR 37565, 37573). The reason 
given for the introduction of the FIFO accounting procedure was that 
the then existing provision was difficult to administer and 
inconsistent with commercial accounting techniques. Section 191.22(c) 
was changed to its current form when the final revision was issued as 
T.D. 83-212. The change (i.e., permitting other accounting procedures 
in addition to FIFO) was made in response to a comment that 
identification should not be limited to FIFO. Customs stated, in the 
T.D., that the comment was believed to have merit and ``[t]herefore, 
other accounting procedures such as `low-to-high,' `identification,' 
and `blanket identification' may be used.'' (``Identification'' is 
direct or actual identification (i.e., identification without recourse 
to an accounting method such as FIFO) and ``blanket identification'' is 
similar to lower-to-higher.)
    Customs has issued a number of rulings on the accounting procedures 
which may be used to identify merchandise or articles for drawback 
purposes. In a memorandum dated September 3, 1981 (File: 213253), all 
Regional Commissioners were directed to permit the use of FIFO in place 
of lower-to-higher identification and 19 CFR 22.4(f) (requiring lower-
to-higher identification) was waived pending the promulgation of 
Sec. 191.22(c) in the proposed revision of the Customs Regulations 
pertaining to drawback. The reason given for this action was to ``. . . 
create savings for both Customs and industry by eliminating an 
antiquated procedure which is not cost effective.''
    In Customs Service Decision (C.S.D.) 79-252, Customs held that 
fungible merchandise commingled in storage or manufacture could be 
identified on a FIFO basis for purposes of 19 U.S.C. 1313(b) (see also 
C.S.D.'s 79-301 and 79-448). In C.S.D. 82-35, Customs held that when 
fungible merchandise belonging to several persons is commingled in 
storage, each person could identify for drawback purposes his 
withdrawals on a FIFO basis, considering only his inputs and 
withdrawals. In C.S.D. 83-54, Customs held that when fungible drawback 
and non-drawback products were commingled in storage, withdrawals for 
drawback purposes may be identified against the drawback material in 
the order of its receipt into the commingled storage facility. In 
C.S.D. 84-82, Customs held that when fungible drawback and non-drawback 
input was placed in commingled storage, withdrawals for drawback 
purposes could be identified on a ``higher-to-lower'' basis against the 
drawback input commingled therein.
    In C.S.D. 88-1, Customs held that the use of FIFO for drawback 
purposes, as provided for in the above-described rulings, required that 
the products be actually commingled in the same tank and that the FIFO 
procedure must be applied on a date-by-date basis, as illustrated in 
the ruling. (Section 484A, Customs and Trade Act of 1990 (Pub. L. 101-
382; 104 Stat. 629, 707; 19 U.S.C. 1313(p)), provided alternative 
monthly accounting procedures for certain crude petroleum and petroleum 
derivative products in certain conditions. In its directive 
implementing this statute (Customs Directive 3740-006, March 17, 1992), 
Customs stated that the legal principles set forth in C.S.D. 88-1 would 
continue to apply to articles not provided for in Sec. 484A.)
    In 1965 (see T.D. 56487, published in the Federal Register on 
September 25, 1965 (30 FR 12280)), Customs published a general drawback 
rate for substitution manufacturing drawback under 19 U.S.C. 1313(b) 
for crude petroleum and petroleum derivatives. General rates are 
manufacturing drawback contracts describing standardized procedures 
(e.g., steel, provided for in T.D. 81-74, or piece goods, provided for 
in T.D. 83-73). Because the procedures covered in general rates are 
standardized, a manufacturer or producer who can comply with the terms 
and conditions of the general rate may seek application of the general 
rate to its operations through a Customs regional office instead of 
having to apply for and obtain approval from Customs headquarters, as 
is true of specific substitution manufacturing drawback contracts (see 
19 CFR Part 191, Subparts D and B, respectively). Because of its 
extreme complexity, the general drawback rate for crude petroleum and 
petroleum derivatives is an exception to this practice, requiring 
application to Customs headquarters for approval.
    T.D. 56487 promulgated the general drawback rate for crude 
petroleum and petroleum derivatives by adding it to the Customs 
Regulations then pertaining to drawback (19 CFR 22.6(g-1); Sec. 22.6 
then contained the general drawback rates). (When Part 22 of the 
Customs Regulations was revised into Part 191, the general drawback 
rates were not included in the revised regulations, as not being of 
sufficient general applicability for such inclusion. Thereafter, 
general drawback rates were published separately as T.D.'s. The general 
drawback rate for crude petroleum and petroleum derivatives, formerly 
in 19 CFR 22.6(g-1), was published, without substantive change, as T.D. 
84-49.) T.D. 56487 provided for a monthly period of manufacture, unless 
a different period was authorized. T.D. 56487 was issued after very 
thorough review by the government and after the public was given an 
opportunity to comment (see Notice of Proposed Rule Making, published 
in the Federal Register on June 16, 1965 (30 FR 7756)).
    In the Notice of Proposed Rule Making for T.D. 56487, the reasons 
given for promulgation of the general drawback rate were to meet the 
complex problems of refiners who produce large groups of widely 
diversified petroleum products and to provide a better basis for the 
proper allowance of drawback on such products, and to ensure compliance 
with the applicable statutory provision (19 U.S.C. 1313(b)). Although 
the T.D. permitted the designation for drawback of imported crude 
petroleum or petroleum derivatives used at one refinery of a refiner as 
the basis for the allowance of drawback on petroleum products 
manufactured or produced at another refinery of the same refiner, the 
T.D. applied to manufacture or production of the latter, or substitute 
merchandise, on a refinery-by-refinery basis.
    A basic feature of T.D. 56487 was that refiners could, at their 
option, attribute to designated imported crude petroleum or petroleum 
derivatives a quantity of an exported petroleum product in excess of 
the quantity of that petroleum product actually produced from either 
the designated imported crude petroleum or petroleum derivative or the 
crude petroleum or petroleum derivative that was substituted for the 
designated import. This feature, called ``producibility,'' permits 
drawback to be claimed on a given quantity of designated imported crude 
petroleum or petroleum derivatives up to the quantity of an exported 
petroleum product which could have been produced from the designated 
imported crude petroleum or petroleum derivatives. Under the 
producibility concept, as provided for in T.D. 56487, a refiner is not 
required to establish that the exported articles were actually produced 
from the substituted crude petroleum or petroleum derivatives; the 
refiner need only show that the exported articles could have been 
produced from the designated imported crude petroleum or petroleum 
derivative.
    The application of the producibility concept to petroleum refinery 
operations is illustrated in the following example, quoted from the 
ruling published as T.D. 78-419.

    Suppose that 100 barrels of crude petroleum are refined into 10 
products in equal amounts, including 10 barrels of motor gasoline. 
One half of the crude is imported duty-paid, which can be designated 
for drawback, and one half (50 barrels) is domestic of the same kind 
and quality. Only the motor gasoline is exported.
    The production standards for petroleum, unlike those for most 
chemicals, are subject to variation at the election of the refiner. 
In other words, the refiner could have produced 91 barrels of motor 
gasoline from 100 barrels of crude [i.e. Class III], had he wanted 
to.
    To require the refiner to designate a quantity of imported crude 
sufficient to have produced concurrently each product actually 
produced, whether or not exported, would either require him to 
designate more than the 50 barrels of imported crude that was used, 
or to accept drawback on only 5 barrels (one-half) of the total 
quantity of motor gasoline exported.
    On the other hand, disregarding the nonexported products for the 
purpose of determining the quantity of imported crude to designate, 
it is clear that up to 91 percent of the 50 barrels of imported 
crude could have been refined into motor gasoline. Therefore, the 
refiner would have to designate only slightly more than 10 barrels 
of imported crude to cover all of the motor gasoline exported. This 
is the Treasury Department position.

    The quantity of a given petroleum product which could have been 
produced from a given quantity of crude petroleum or petroleum 
derivative is determined on the basis of ``Industry Standards of 
Potential Production on a Practical Operating Basis.'' These standards 
were published in T.D. 66-16. The standards listed the quantity of 17 
petroleum products which could have been produced from four classes of 
crude petroleum and 12 petroleum derivatives (e.g., the producibility 
percentages for class III crude petroleum for motor gasoline and 
aviation gasoline are 91 and 40 respectively, meaning that 91 gallons 
of motor gasoline or 40 gallons of aviation gasoline could be produced 
from 100 gallons of class III crude petroleum).
    In addition to establishing procedures for the use of the concept 
of producibility for the refining of crude petroleum and petroleum 
derivatives, T.D. 56487 divided crude petroleum and petroleum 
derivatives into classes for purposes of determining same kind and 
quality. (In order to claim drawback under 19 U.S.C. 1313(b) on the 
exportation of articles manufactured from domestic or other merchandise 
substituted for designated imported merchandise, the designated 
imported merchandise and the substituted merchandise must be of the 
same kind and quality.) Four classes, based on API gravity, were 
established. Crude petroleum in any one class would be considered as 
being of the same kind and quality as any other crude petroleum 
included in the same class and any named petroleum derivative in any 
class would be considered as being of the same kind and quality as the 
same named derivative in the same class. As stated above, under T.D. 
56487, a refiner was not required to establish that the crude petroleum 
or petroleum derivative used to produce the exported article was of the 
same kind and quality as the designated imported crude petroleum or 
petroleum derivative; the refiner was required to establish that this 
could have been the case. (I.e., If a refiner used different classes of 
crude petroleum during a production period subject to different 
standards of producibility, the refiner was required to establish only 
that a sufficient quantity, taking into consideration the applicable 
standards of producibility, of crude petroleum of the same class as the 
designated imported crude petroleum was used in the refinery during the 
period; not that it was actually used for the production of exported 
article.)
    Distribution of drawback among the products produced during a 
production period under T.D. 56487 is based on the relative values of 
all products manufactured or produced during the production period, as 
of the time of separation of the products. (The time of separation of 
the products is considered to be the monthly period of production.) 
Relative values are stated in terms of drawback factors, which attach 
to each of the products manufactured or produced during the production 
period. (E.g., If, under T.D. 56487, crude petroleum was used to 
produce 50 barrels of motor gasoline valued at $30 per barrel, 25 
barrels of distillate oils valued at $20 per barrel, and 25 barrels of 
all other petrochemical products valued at $80 per barrel, the drawback 
factors would be: motor gasoline--.75; residual oils--.5; and all other 
petrochemical products--2.) The quantity of crude petroleum which may 
be designated for the exportation of a particular product is determined 
by multiplying the quantity of the article exported by the drawback 
factor. (E.g., In the above example if 10 barrels of motor gasoline 
were exported, 7.5 barrels of crude petroleum could be designated; if 
10 barrels of petrochemical products were exported, 20 barrels of crude 
petroleum could be designated.)
    T.D. 56487 emphasized the statutory requirement that the total 
amount of drawback allowed may never exceed 99 percent of the duty paid 
on the designated imported merchandise. To ensure compliance with this 
requirement, the T.D. provided that the exportation of a given quantity 
of a manufactured product affords a proper basis for the allowance of 
drawback only to the extent that the product could have been produced 
in that quantity (together with the quantities of related products 
produced concurrently) from the designated imported crude petroleum or 
petroleum derivatives. The T.D. provided that this requirement meant 
that such concurrent production must be practicably possible by 
ordinary manufacturing techniques.
    T.D. 56487 contained explicit accounting procedures for 
manufactured articles. When the inventory of a particular product 
contained product with different drawback factors (e.g., if the 
inventory of motor gasoline was from more than one month's production, 
each month's quantity could have a different drawback factor), 
withdrawals from the inventory for exports were required to be ``[f]rom 
lowest [factor] on hand'', withdrawals for drawback deliveries (i.e., 
for further manufacture resulting in a product on which drawback could 
be claimed) were required to be ``[from] lowest on hand after exports 
are deducted'', and withdrawals for domestic (non-drawback) shipments 
were required to be ``[f]rom earliest on hand after [withdrawals for 
export and drawback deliveries] are deducted.''
    The basis for the above accounting procedures is explained in the 
Notice of Proposed Rule Making for T.D. 56487, in which it is stated, 
``[t]he total amount of drawback allowable * * * shall be computed by 
multiplying the quantity of product exported by the drawback factor for 
that product, with due consideration for the `lower-to-higher' 
principle established in [19 CFR 22.4(f)].'' (Emphasis added.)
    Customs has been requested to amend T.D. 84-49 (as stated above, 
when the Customs Regulations pertaining to drawback were revised in 
1983, the general drawback rate for crude petroleum and petroleum 
derivatives was not included in the revised regulations but was 
subsequently published, without substantive change from its initial 
publication as T.D. 56487, as T.D. 84-49) to permit the accounting for 
withdrawals for export and for drawback deliveries from the inventory 
of a particular product containing product with different drawback 
factors on the basis of FIFO or higher-to-lower. The basis for this 
request is stated to be that when T.D. 56487 was published, Customs 
permitted such accounting only on a lower-to-higher basis but now other 
bases of accounting, including FIFO and higher-to-lower are permitted.
    It is Customs position that the above-described rationale for 
amending T.D. 84-49 to permit the accounting on a FIFO basis in the 
described situation has merit (although, in the interest of 
administrative simplicity, Customs believes that the order of such 
withdrawals should continue to be the same; i.e., first exports, then 
drawback deliveries, then domestic shipments). The reasons given for 
the introduction of FIFO to accounting procedures for drawback still 
apply; i.e., that FIFO is less difficult to administer and is 
consistent with commercial accounting procedures (see, e.g., Miller's 
Comprehensive GAAP Guide (1985), page 2401 et seq., Inventory Pricing 
and Methods). The basis for requiring use of the lower-to-higher 
accounting procedure in this situation was that that was the only 
accounting procedure permitted to be used for drawback at the time. 
Customs position has now changed. Furthermore, we note that under T.D. 
84-49, there are procedures guaranteeing that the total amount of 
drawback allowed may never exceed 99 percent of the duty paid on the 
designated imported merchandise, as required by the drawback law.
    However, it is Customs position that T.D. 84-49 should not be 
amended to permit the accounting on a higher-to-lower basis and, 
furthermore, that C.S.D. 84-82, the only published Customs ruling 
permitting higher-to-lower accounting for drawback purposes, as well as 
any unpublished Customs rulings to the same effect, should be revoked. 
As described above, when the Customs Regulations on drawback were 
revised in 1983 and the use of FIFO, or any other accounting procedure 
approved by Customs, was authorized, the applicable provision (19 CFR 
191.22(c)) was modified from that proposed in the Notice of Proposed 
Rule Making for the revision. In the Notice of Proposed Rule Making, 
only FIFO would have been permitted. In the Final Revision it was 
explained that this change was in response to a comment which was found 
to have merit, and therefore other accounting procedures could be used. 
Illustrations of these other accounting procedures were given. The 
illustrative accounting procedures (``low-to-high'', 
``identification'', and ``blanket identification'') are either as 
conservative as the lower-to-higher procedure then permitted or consist 
of direct identification without recourse to an accounting system.
    Each of the illustrative accounting procedures referred to in the 
Final Revision of the Customs Regulations on drawback is either revenue 
neutral or favors the Government. When a drawback claimant uses an 
accounting system to identify merchandise or articles for drawback 
purposes, it does so for its own convenience (i.e., to avoid having to 
physically identify the merchandise or articles). It is Customs 
position that any accounting procedure authorized under 19 CFR 
191.22(c) must be revenue neutral or favorable to the Government. 
Furthermore, it is Customs position that any such authorized accounting 
procedure must be consistent with commercial accounting procedures, as 
is true of FIFO, must be consistent with the accounting procedures 
generally used by the drawback claimant, and must be consistent with 
ease of administration.

Authority

    This notice is published in accordance with Secs. 177.9 and 177.10, 
Customs Regulations (19 CFR 177.9, 177.10).

Comments

    Before adopting this proposed change in position, consideration 
will be given to any written comments timely submitted to Customs. 
Comments submitted will be available for public inspection in 
accordance with the Freedom of Information Act (5 U.S.C. 552), 
Sec. 1.4, Treasury Department Regulations (31 CFR 103.11(b)), on 
regular business days between the hours of 9 and 4:30 p.m. at the 
Regulations Branch, Franklin Court, 1099 14th Street, NW., Suite 4000, 
Washington, DC.
George J. Weise,
Commissioner of Customs.

    Approved: June 9, 1994
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 94-15527 Filed 6-27-94; 8:45 am]
BILLING CODE 4820-02-P