RR:IT:VA 546120 RSD

Port Director
U.S. Customs Service
200 St. Paul Place
Baltimore, Maryland 21202

RE: Application for further review of Protest No. 1303-94-100202; deductive value; 19 U.S.C. 1401a(d); 19 U.S.C. 1401a(f)

Dear Sir:

This is in response to a memorandum from the district director of the former Baltimore District regarding Protest No. 1303-94-100202 filed by Customs broker John S. Connor on behalf of Decometal against your decision concerning the appraisement of a metallic product called ferro-vanadium. We have received an additional submission from the broker that you transmitted to us by fax on January 25, 1996.

FACTS:

The protest file does not provide much information regarding the protested entry. It does indicate, however, that the importer is an Austrian based company, Decometal. Decometal imported a shipment of a metallic product known as ferro-vadium. The date of entry was June 28, 1993. The importation was shipped on consignment and stored in the importer's name at a warehouse. The invoice filed with the entry was provisional and did not reflect the price at which the goods were actually sold to unrelated purchasers in the United States.

Because the merchandise was consigned, the district concluded that there was not a sale for exportation on which the merchandise could be appraised. Therefore, the district rejected transaction value as the method of appraisement. The Baltimore district also determined that there was insufficient information to appraise the merchandise under transaction value of identical or similar and identical merchandise or computed value. In addition, the technical time limits for using deductive value were not met. Accordingly, the merchandise was appraised using an adjusted form of deductive value under 402(f). The only dispute raised by protestant concerns whether certain fess should be deducted. The district disallowed deductions for packing, repacking, demurrage fees due to devanning, customs devanning exam, harbor maintenance fee, warehouse storage charges, and labor and materials to repackage the merchandise.

ISSUE:

Whether certain fees and expenses should have been deducted from the adjusted deductive value under 402(f) that was used to appraise the imported merchandise? LAW AND ANALYSIS:

As you know, merchandise imported into the United States is appraised in accordance with section 402 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA: 19 U.S.C.  1401a). The preferred method of appraisement is transaction value, which is defined by 402(b)(1) as the "price actually paid or payable for merchandise when sold for exportation to the United States," plus certain enumerated additions specified in 402(b)(1)(A) through (E). 19 U.S.C.  1401a(b)(1). However, the TAA provides that merchandise will be appraised under transaction value only if, inter alia: the sale of, or the price actually paid or payable for the imported merchandise is not subject to a condition or consideration for which a value cannot be determined; or the buyer and seller are not related, or if related, the transaction value is acceptable under  402(b)(2)(B) of the TAA. We agree that since the imported merchandise was consigned rather than sold, it cannot be appraised under transaction value. See HRL 545303, September 24, 1993.

When imported merchandise cannot be appraised on the basis of transaction value, it is appraised in accordance with the remaining methods of valuation, applied in sequential order. 19 U.S.C.  1401a(a)(1). The alternative bases of appraisement in order of precedence are: the transaction value of identical or the transaction value of similar merchandise (19 U.S.C.  1401a(c)); deductive value (19 U.S.C.  1401a(d)); computed value (19 U.S.C.  1401a(e)); and the "fall back" method (19 U.S.C.  1401a(f)). In the instant case, there is no information concerning the existence of identical or similar merchandise. Similarly, there is no information concerning computed value.

The importer had requested that the merchandise be appraisement under deductive value. When utilizing deductive value, merchandise is appraised based on the price at which it is sold in the U.S. in it condition as imported and in the greatest aggregate quantity either at or about the time of importation or before the close of the ninetieth day after the date of importation. Provided the merchandise is not further processed, the unit price at which imported merchandise is sold in the greatest aggregate quantity means the unit price at which it is sold to unrelated persons at the first commercial level after importation. Section 402(d)(2)(B) of the TAA.

The price determined under 402(d) is to be reduced by an amount equal to the following:

(i) any commission usually paid or agreed to be paid, or the addition usually made for profit and general expenses, in connection with sales in the United States of imported merchandise that is of the same class or kind regardless of the country of exportation, as the merchandise concerned;

ii) the actual costs and associated costs of transportation and insurance incurred with respect to international shipments of the merchandise concerned from the country of exportation to the United States;

iii) the usual costs and associated costs of transportation and insurance incurred with respect to shipment of such merchandise from the place of importation to the place of delivery in the United States, if such costs are not included as a general expense under (i);

iv) the customs duties and other Federal taxes currently payable on the merchandise concerned by reason of its importation and any Federal excise tax on or measured by the value of, such merchandise for which vendors in the United States are ordinarily liable...

Section 402(d)(3)(A)(i)-(iv). The deduction for profit and general expenses, to be taken as a whole, shall be based on the importer's profits and general expenses, unless these are inconsistent with those reflected in sales in the U.S. of imported merchandise of the same class or kind. Section 402(d)(3) (B)(i); section 152.105(e)(1), Customs Regulation (19 CFR 152.105(e)(1)).

Because the merchandise was not resold within the allowable time contraints, the district appraised the merchandise by using 402a(f) based on a method derived from deductive value under 401a(d). Section 402a(f) provides that if the value of imported merchandise cannot be determined or otherwise used for the purposes of the TAA, under subsection (b) through (e), the merchandise shall be appraised for purposes of this Act on the basis of a value that is derived from the methods set forth in such subsections, with such methods being adjusted to the extent necessary to arrive at a value.

In applying this adjusted deductive value, the question that must be resolved is whether the district should have made deductions for costs that the importer incurred in importing and reselling the merchandise in the United States. As noted above, the district disallowed deductions for packing, repacking, demurrage fees due to devanning, customs devanning exam, harbor maintenance fee, warehouse storage charges, and labor and materials to repackage the merchandise. In determining whether any of these expenses should be allowed as deductions, it is necessary to ascertain whether these expense were incurred before or after Customs released the merchandise. If an expense was incurred after the merchandise was released from Customs custody it is likely that it would be a general expenses made in connection with the sale of the imported merchandise in the United States. In HRL 545187, February 14, 1995, we ruled that expenses designated on an income statement as salaries and wages, rent, taxes travel, advertising, automotive expense, and contract services are deductible as "general expenses" from the unit price at which the merchandise is sold to the unrelated U.S. purchasers. Based on the importer's most recent submission, it appears that the expenses for repacking and repackaging the merchandise were incurred after Customs release merchandise. Accordingly, the costs of repacking and repackaging the merchandise would be deductible expenses incurred in connection with the selling of the merchandise in the United States. A deduction would also be allowed for the harbor maintenance. With respect to demurrage fees due to the Customs devanning exam, since these expenses were incurred while the merchandise was in Customs custody, they were not incurred in connection with selling the merchandise in the United States and thus cannot be deducted from the price that the goods were sold at in the United States. We have no information regarding the warehouse storage fees and thus there is no basis to deduct such fees from the price of selling the merchandise to unrelated buyer in the United States used to calculate the adjusted deductive value.

Finally with regard to the expenses referred to as "packing", it is not clear what the importer meant by this term. Section 402a (h) (3) defines the term "packing costs" as the cost of all containers and covering whatever nature and of packing whether for labor or materials, used in placing merchandise in condition placed ready for shipment to the United States. Under 402a(d)(C) the price determined under deductive value shall be increased (but only to extent that such costs are not otherwise included) by an amount equal to the packing incurred by the importer or buyer, as the case may be with respect to the merchandise concerned. On this basis, the packing costs cannot be deducted from the price used to calculate the deductive value. Rather, if the packing costs fit within the definition indicated above, and they are not already included in the unit price, they should be added to that unit price to determine the adjusted deductive value.

HOLDING:

In calculating the adjusted deductive value under 402(f), the costs incurred for repacking and repackaging the goods after Customs release and the Harbor Maintenance fee are to be deducted from the price that the merchandise is sold to an unrelated buyer in the United States. The packing costs, warehouse fees and the demurrage fees will not be deducted from the price of the merchandise used to calculate the adjusted deductive value.

Sincerely,

Acting Director,
International Trade Compliance Division