VAL OT:RR:CTF:VS H235776 EE
E.G. Abby Porter
Greenbrier International, Inc.
500 Volvo Parkway
Chesapeake, VA 23320
RE: Transaction value; charges incident to the international shipment of the
merchandise; foreign inland freight
Dear Ms. Porter:
This is in response to your letter dated November 19, 2012, in which you request a ruling whether certain charges for services by a third party logistics provider should be included in the transaction value of the imported merchandise.
FACTS:
Greenbrier International, Inc. (“Greenbrier”) is an importer of retail goods based in Chesapeake, Virginia. Greenbrier utilizes a third party logistics provider to assist with a variety of origin related services to facilitate the handling of the cargo. You state that the fees for the services offered encompass the following as examples:
Container Freight Station (“CFS”) receiving and handling fees;
Fee for handling Less than Container Load (“LCL”) cargo;
Fee charged by the carrier for issuing the bill of lading;
Container Yard (“CY”) monitoring fee for handling the cargo;
10+2 management fee to assist the importer in providing the required information to U.S. Customs and Border Protection (“CBP”);
Terminal handling charge;
Fee charged by the carrier’s booking agent for booking services;
Foreign customs clearance fee;
Documentation fee for issuing the Freight Cargo Receipt (“FCR”);
Foreign inland freight (including drayage, haulage, trucking);
Fee charged by the carrier for equipment management;
Port construction fee (charged by the carrier);
Port security charge;
Wharfage charge.
You provided documentation from two sample transactions for illustrative purposes. The documentation consists of purchase orders from the importer to the seller, commercial invoices, and packing lists from the seller to the importer for certain decorative articles. Each commercial invoice lists the merchandise, quantity, unit price, and total price. You claim that the charges for the services above are included in the invoice as part of the price of the merchandise. The term of sale listed on each invoice is “FOB port of export.”
You also submitted waybills issued by carriers, forwarder’s cargo receipts, and tax invoices issued by the third party logistics provider. All of these documents reference the information on the purchase orders, invoices, and packing lists. The tax invoices reference the waybills and list the breakdown of services and fees charged by the third party logistics provider per bill of lading.
You claim that the dutiable value should be based upon the foreign seller’s invoice value less the charges assessed by the third party logistics provider, on the basis that those charges are incident to the international shipment of the merchandise.
ISSUE:
Whether certain charges that are included in the invoice price for the imported merchandise may be properly excluded from transaction value as costs incident to the international shipment of the merchandise.
LAW AND ANALYSIS:
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 as “the price actually paid or payable for the merchandise when sold for exportation to the United States,” plus amounts for certain statutorily enumerated additions to the extent not otherwise included in the price actually paid or payable. 19 U.S.C. § 1401a(b)(1). If, for any reason, sufficient information is not available with respect to the additions to the price actually paid or payable, the transaction value of the imported merchandise is treated as one that cannot be determined. 19 U.S.C. § 1401a(b)(1).
The term “price actually paid or payable” is defined as:
[T]he total payment (whether direct or indirect, and exclusive of any costs, charges, or expenses incurred for transportation, insurance, and related services incident to the international shipment of the merchandise from the country of exportation to the place of importation in the United States) made, or to be made, for imported merchandise by the buyer to, or for the benefit of, the seller.
19 U.S.C. § 1401a(b)(4)(A).
In Treasury Decision (“T.D.”) 00-20, CBP reiterated its longstanding position that with regard to freight, insurance and other costs incident to international shipment, including foreign inland freight, the importer of record must deduct the actual costs for these charges from the price actually paid or payable in determining transaction value, if these costs are included in the price actually paid or payable. The notice advised that CBP considers actual costs to constitute those amounts ultimately paid to the international carrier, freight forwarder, insurance company or other appropriate provider of such services. Commercial documents to and from the service provider such as an invoice or written contract separately listing freight/insurance costs, a freight/insurance bill, a through bill of lading or proof of payment of the freight/insurance charges (i.e., letters of credit, checks, bank statements) are examples of some documents which typically serve as proof of such actual costs. Other types of evidence may be acceptable.
CBP has previously determined that the 10+2 management fee, carrier agent booking fee, carrier bill of lading, CFS receiving, customs clearance, CY monitoring, documentation fee, equipment management fee, FCR/HBL issuance, LCL handling, port construction charge, port security charge, supply chain security fee, terminal handling charge, and wharfage fees are charges incident to the international shipment of the merchandise. See Headquarters Ruling Letter (“HQ”) H092560, dated April 7, 2010; see also HQ H119858, dated September 9, 2010; and HQ H119857, dated September 9, 2010. CBP has also held that the Automated Manifest System (“AMS”) fee is a charge incident to the international shipment of the merchandise. See HQ H148715, dated November 16, 2011. Additionally, CBP has held that the container seal fee is a charge incident to the international shipment of the merchandise. See HQ H219516, dated July 30, 2012.
As stated in T.D. 00-20, deductions for transportation, insurance, and related services incident to the international shipment of the merchandise is appropriate only to the extent they are included in the price actually paid or payable. In the instant case, the tax invoices issued by the third party logistics provider to the manufacturer of the merchandise itemize various charges. Although the seller’s invoices to the importer do not provide a similar itemization, the use of the “FOB” term of sale on the invoices indicates that the price for the decorative articles includes all costs relating to the goods until they are on board the vessel at the named port of shipment. See Incoterms 2010, 90 (2010). Further, we note that the forwarder’s cargo receipts and tax invoices issued by the third party logistics provider indicate the same FOB location as the commercial invoices from the seller to the importer and reference the same port of loading listed on the waybills.
Nevertheless, we note that even though this ruling request deals with a variety of fees that might be charged by the third party logistics provider, as referenced in the FACTS section of this ruling letter, the documents for sample transactions #1 and #2 only specify the following charges: FCR issuance fee, CFS storage charge, the fee for the movement of empty containers to the CFS, foreign inland freight (including drayage, haulage, trucking) costs, terminal handling charge, foreign customs clearance fee, CY fees, carrier bill of lading fee, port security fee, AMS or 10+2 fee, and carrier agent booking charge.
Based on documents provided for the sample transactions, the FCR issuance fee, terminal handling charge, foreign customs clearance fee, carrier bill of lading fee, port security charge, the AMS fee or 10+2 fee, and the carrier agent booking fee may be deducted from the price actually paid or payable of the imported merchandise. The CFS storage charge may not be deducted from the price actually paid or payable of the imported merchandise since the CFS is not located within the port limits. Similarly, the CY fees may not be deducted from the price actually paid or payable of the imported merchandise if the CY is not located within the port limits. The fee for the movement of empty containers to the CFS may also not be deducted from the price actually paid or payable of the imported merchandise. However, the rest of the charges may be deducted from the price actually paid or payable in line with our ruling HQ H092560, if included in the price actually paid or payable of the imported merchandise and supported by the necessary documentation.
As previously noted, the invoice issued by the seller to the importer specifies “FOB” delivery terms. With respect to foreign inland freight in sales other than ex-factory, section 152.103(a)(5)(ii), CBP Regulations (19 C.F.R. § 152.103(a)(5)(ii)), provides:
Sales other than ex-factory. As a general rule, in those situations where the price actually paid or payable for imported merchandise includes a charge for foreign inland freight, whether or not itemized separately on the invoices or other commercial documents, that charge will be part of the transaction value to the extent included in the price. However, charges for foreign inland freight and other services incident to the shipment of the merchandise to the United States may be considered incident to the international shipment of that merchandise within the meaning of § 152.102(f) if they are identified separately and they occur after the merchandise has been sold for export to the United States and placed with a carrier for through shipment to the United States.
According to section 152.103(a)(5)(iii), CBP Regulations (19 C.F.R. § 152.103(a)(5)(iii)):
Evidence of sale for export and placement for through shipment. A sale for export and placement for through shipment to the United States under paragraph (a)(5)(ii) of this section shall be established by means of a through bill of lading to be presented to the port director. Only in those situations where it clearly would be impossible to ship merchandise on a through bill of lading (e.g., shipments via the seller’s own conveyance) will other documentation satisfactory to the port director showing a sale for export to the United States and placement for through shipment to the United States be accepted in lieu of a through bill of lading.
In All Channel Products v. United States, 16 CIT 169, 173, 787 F. Supp. 1457, 1460 (1992), aff'd, 982 F.2d 513 (Fed. Cir. 1992), the court interpreted 19 C.F.R. § 152.103(a)(5)(ii) and (iii) as permitting the deduction of foreign inland freight charges in a CIF or other non-ex-factory sale as incident to international shipment of the merchandise “only in cases where the merchandise was placed with one freight forwarder or carrier for through shipment from the factory to the United States documented by a through bill of lading (or other satisfactory documentation establishing through shipment).”
The waybills submitted reflect the shipment of the merchandise from the Port of Ningbo to the Port of Oakland or the Port of Los Angeles, CA; they do not show through shipment from the factory to the Port of Oakland or the Port of Los Angeles, CA. Since there is no evidence of through shipment from the factory to the U.S., no deduction may be made for foreign inland freight charges.
HOLDING:
Based on the information presented, the following costs charged by the third party logistics provider may be excluded from the price actually paid or payable for the imported merchandise with respect to the sample transactions: the FCR issuance fee, terminal handling charge, foreign customs clearance fee, carrier bill of lading fee, port security charge, the AMS fee or the 10+2 fee, and the carrier agent booking fee. Additionally, LCL handling, equipment management, port construction charge, and wharfage fees, may be excluded from the price actually paid or payable of the imported merchandise in line with our ruling in HQ H092560, provided that all documentary requirements are satisfied.
The foreign inland freight charges, CFS storage charge, and the fee for the movement of empty containers to the CFS should be included in the price actually paid or payable for the imported merchandise. The CY fee should be included in the price actually paid or payable for the imported merchandise if the CY is not located within the port limits.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.”
Sincerely,
Monika R. Brenner
Chief
Valuation & Special Programs Branch