VAL CO:R:C:V 544725 VLB

District Director of Customs
300 South Ferry St. Terminal Island
Room 2017
San Pedro, California 90731

RE: Currency Conversion; Application for Further Review of Protest No. xxxxxxxxxxx

Dear Sir:

This is in response to an Application for Further Review of the above-referenced protest.

FACTS:

You state that Brother International (hereinafter referred to as "BIC") imports facsimile machines, as well as other products. The purchase order for the merchandise at issue was dated June 29, 1989, and contained a unit price of $543.80. The purchase order also contained a the following notation: "Japanese Yen Base Tentative Exchange Rate: Yen 125.00/US$".

The invoices that BIC submits to Customs contain F.O.B. U.S. dollar unit values ($543.80), extensions, and sub/grand totals. In the present case, the USD total amount was $108,760.00. You explain that this amount is then converted to Japanese yen using a fixed conversion rate, 125 JPY to the USD, for this entry resulting in a total JPY value of 13,595,000. The yen amount was then reconverted back to USD using the official conversion rate on the date of exportation. This resulted in BIC declaring a value of $96,252.60.

You further state that at a later date, another conversion is made of the intermediate JPY value using a different conversion rate, which was known in advance. It is the dollar amount that this conversion yields that BIC actually transfers to Brother International of Japan (hereinafter referred to as "BIC Japan"). In this case the amount that was transferred was $106,686.06. - 2 -

In a letter dated August 8, 1990, the International Traffic Manager for BIC explained the process as follows:

Brother International Corporation Piscataway N.F. (BIC US) settles with the exporter, Brother International Corporation Nagoya, Japan (BIC Japan), in Japanese Yen as stipulated on the last page of the commercial Invoice. . . .The invoices have U.S. dollar values as well as Japanese Yen amount for our easy reference purpose. The U.S. dollar value is converted by 125 Yen/U.S.$ as our internal administrative exchange rate, but those dollar amounts are not the amount to be settled with BIC Japan. As you will note. . .the calculation for settlement is based on a forward exchange contract. The invoice involved #57084-0 shows total value of 13,595,000 yen which is converted by our internal rate of 125 Yen/US$ equalling U.S. $108,760.00. This yen amount is then calculated on the contract rate which is in this case 127.43Yen/U.S.$. This new calculation is the amount which is to be settled with the exporter, stated as $106,686.06. On the date of settlement our bank (The Mitsui Bank Ltd.) transfers the U.S. dollar amount of $106,686.06 to the Mitsui Bank Ltd., Nagoya, Japan. Once the Mitsui Bank receives the money they automatically notify BIC Japan that the money (U.S. Dollars) has been received. BIC Japan then informs the bank as to which forward exchange contract is to be used to convert the U.S. Dollars into Yen. Once this is done the credit into the BIC Japan account is for 13,595,000 Japanese Yen, which is the agreed upon amount between the exporter and us.

BIC contends that the appraised value of the merchandise should be the yen amount on the invoice JPY 13,595,000 converted using the certified yen/dollar exchange rate on the date of exportation, which in this case was $.007080/Y yielding a result of $96,252.60. BIC contends that once it has been established that the transaction is in foreign currency, "it makes little difference whether the importer actually paid $106,686.06 (Y 127.43/$) or $96,252.60 (Y 141.24/$) or some other amount for Y13,595,000".

You argue that the invoices are U.S. Dollar invoices and that the USD to yen and back to USD are extraneous and without impact. However, there is a later conversion based on a formula known in advance which represents the actual price paid for the merchandise in U.S. dollars, and this amount, $106,686.06 is the proper appraised value. - 3 -

ISSUE:

What is the proper rate of conversion for the Yen amount contained in the invoice?

LAW AND ANALYSIS:

As you know, the preferred method of appraisement is transaction value, which is defined in section 402(b) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C. 1401a(b); TAA) as the "price actually paid or payable for the merchandise when sold for exportation to the United States" plus enumerated statutory additions. The "price actually paid or payable" is defined in section 402(b)(4) of the TAA as the "total payment . . . made, or to be made, for imported merchandise by the buyer to, or for the benefit of, the seller." In this case, there is no dispute that transaction value was the proper basis of appraisement.

The Statement of Administrative Action, specifically adopted by Congress contains the following language further explaining the term "price actually paid or payable":

The price actually paid or payable shall be considered without regard to its method of derivation. It may be the result of discounts or increases, or may be arrived at through some formula, or may be the result of negotiations.

The issue that has been raised in this case is whether the "price actually paid or payable" was determined by the use of a formula. Customs has consistently held that currency conversion rates that are agreed to by the parties prior to the exportation of the merchandise constitute valid formulas for purposes of transaction value. See, HRL 543437, dated May 17, 1988 and HRL 543089, dated June 20, 1984.

In this case the information from BIC's International Traffic Manager indicated that the 13,595,000 is converted by the contract rate of 127.43Yen/U.S.$. This results in the amount of U.S. Dollars that the BIC is required pay to BIC Japan. It appears that the contract rate and/or the method by which the contract rate will be calculated is known prior to the exportation of the - 4 -

merchandise. Therefore, the contract rate of exchange constitutes a formula for determining the price actually paid or payable. This results in a price actually paid or payable of $106,686.06.

HOLDING:

The proper rate of conversion is the contract rate, in this case 127.43 Yen to the Dollar. The contract rate of exchange constitutes a formula for determining the price actually paid or payable. Thus, the price actually paid or payable is $106,686.06.

You are directed to deny the protest. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division