VAL CO:R:C:V 544784 ML
District Director
  San Diego, California
  
RE:     Proper Appraisement for Merchandise Under Deductive Value;
          Application For Further Review of Protest No. XXXX-XX-XXXXXX
  
  Dear Sir:
  
      The protest was filed against your decision in the 
  liquidation of an entry made by Salico Farms, (hereinafter 
  referred to as the ,,importer") of honeydew melons of various 
  sizes. The merchandise was consigned to the importer and grown 
  in Mexicali, Mexico. The merchandise was appraised using 
  deductive value, based on the price of the greatest aggregate
  quantity.
  
  FACTS:
  
                                                      The merchandise consisted of honeydew melons that were
  imported from Mexicali, Mexico, through Calexico on May 24, 1988.
  The merchandise was consigned to the importer and appraised using
  deductive value.  The method of appraisement is not protested.       
  The importer's position is that since the market in Mexicali is
  different than the market in Nogales, the merchandise should be
  appraised at values the importer sold the merchandise for in the
  United States, less allowable deductions, (i.e., the U.S. selling
  price, less deductions- The concerned import specialist is of 
  the opinion that the merchandise was correctly appraised using 
  the price of the greatest aggregate quantity.
  
  ISSUE:
  
      Whether an appraisement using deductive value includes the 
  use of similar merchandise sold in the greatest aggregate 
  quantity.
  
  LAW AND ANALYSIS:
  
      Deductive value, the method of appraisement used in 
  connection with the imported merchandise, is defined in section
  402(d)(2)(A)(i) and (ii) of the Tariff Act of 1930, as amended by
  the Trade Agreements Act of 1979 (TAA; 19 U.S.C. 1401a(d)), as 
  the price at which the merchandise concerned is sold in the
  condition as imported at or about the date of importation of the
  merchandise being appraised, sold in the greatest aggregate
                                      2
  
      
  quantity at or about such date, or before the close of the 90th 
  day after the date of such importation.  The unit price at which
  merchandise is sold in the greatest aggregate quantity is the 
  unit price at which such merchandise is sold to unrelated 
  persons, at the first commercial level after importation.
  
      The importer stated that honeydews from Mexicali or the
  marketing of honeydews from Mexicali is different than the 
  marketing of honeydews in Nogales. It is argued that this 
  alleged discrepancy was said to cause substantial pricing and 
  value differences. Therefore, the greatest aggregate quantity 
  for the merchandise, as was found in Nogales and used in the 
  402(d) appraisement was not appropriate.
  
   Section 402(h)(4)(A) of the TAA states that similar
  merchandise is merchandise that--
  
             "(iii) is commercially interchangeable with 
             the merchandise being appraised;...."
  
      We are of the opinion that if the merchandise was 
  commercially interchangeable, (for example, the same USDA 
  standard grade) then the merchandise found in Nogales was 
  "similar" (as provided for in the statute) to the imported
  merchandise, and therefore, we must accept it.  In our opinion, 
  the growing region in Mexico has no relevance in the application 
  of deductive value. Merchandise is either similar or it is not, 
  as per the above definition. Since the concerned import 
  specialist has found the honeydews to be similar, the import
  specialist's use of the greatest aggregate quantity of similar
  merchandise is in accord with the statute.
  
  HOLDING:
  
      Based on the foregoing, the deductive value of the imported
  merchandise was properly arrived at using the greatest aggregate
  quantity of similar merchandise as found in Nogales.
  
      Accordingly, you are directed to deny the protest in full. 
  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