CLA -2 CO:R:C:V 544315 DHS

John A. Slagle
Wolf D. Barth Co. Inc.
7575 Holstein Avenue
Philadelphia, Pennsylvania 19153

RE: Test equipment; 19 U.S.C. 1401a(h)(1)(A)

Dear Mr. Slagle:

This is in reference to your letter of February 28, 1989, inquiring as to the dutiability of certain test equipment pursuant to section 402(h)(1)(A) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA; 19 U.S.C. 1401a(h)(1)(A)).

FACTS:

A U.S. company provides test equipment free of charge to foreign manufacturers to check the integrity of the finished instruments before shipment to the United States. There is no indication in your submission as to the method used to appraise the merchandise. ISSUE:

Does test equipment fall within the definition of an assist pursuant to section 402(h)(1)(A) of the TAA?

LAW AND ANALYSIS:

Section 402(h)(1)(A) provides as follows:

The term assist means any of the following if supplied directly or indirectly, and free of charge or at reduced cost, by the buyer of imported merchandise for use in connection with the production or the sale for export to the United States of the merchandise:

(i) Materials, components, parts, and similar items incorporated in the imported merchandise.

(ii) Tools, dies, molds and similar items used in the production of the imported merchandise

(iii) Merchandise consumed in the production of the imported merchandise. (iv) Engineering, development, art work, design work, plans and sketches that are undertaken elsewhere than in the United States and are necessary for the production of the imported merchandise. In TAA No. 11, dated November 7, 1980 (HRL 542187), we held that testing costs incurred as a result of testing the accuracy of the design and structure of steel structures which were neither part of the design and engineering work, nor necessary for the fabrication of the product by the U.S. purchaser to the foreign exporter were not assists within the meaning of section 402(h)(1)(A) of the TAA. However, in certain instances, payments made by the U.S. purchaser to the foreign exporter were considered to be part of "the price actually paid or payable" for the imported merchandise.

With respect to the instant case, it appears that the testing equipment is not used in the production of the imported merchandise within the meaning of section 402(h)(1)(A)(ii) of the TAA or the above cited case. Furthermore, the equipment does not fall within any of the other assist categories. We note in this regard that these categories are intended to be inclusive and, accordingly, items not included therein are not considered assists.

It should be noted that if the equipment is appraised under computed value the costs of the equipment may be included as the "cost or value of the materials and the fabrication and other processing of any kind employed in the production of the imported merchandise" or "an amount for profit and general expenses ... made by the producers in the country of exportation for export to the United States." See, section 402(e)(1)(A) and (B) of the TAA. If, in accordance with generally accepted accounting principles of the country of production or exportation, the costs of this equipment should be reflected in the books of the foreign assembler as processing costs, then it may be that the costs are to be included in determining the computed value of the final imported product. See, HRL No. 544083, dated August 16, 1988 and TAA No. 9, dated October 15, 1980 (HRL 542139). HOLDING:

In view of the foregoing, we conclude that the testing equipment is not an assist within the meaning of 402(h)(1)(A) of the TAA. If the merchandise is to be appraised under computed value, the inclusion of these costs must be determined according to generally accepted accounting principles.


Sincerely,

John Durant, Director
Commercial Rulings Division