Sec. 14.3 Appraisement of merchandise; determination of value. 14.4 14.5 14.6 14.6a 14.7 14.8 14.9 14.10 14.11 14.12 14.13 Furnishing information as to values. PROCEDURE UNDER ANTIDUMPING ACT of information in anti- Action by the appraiser. Release of merchandise; bond. Modification or revocation of finding. AUTHORITY: The provisions of this Part 14 issued under R.S. 161, 251, sec. 624, 46 Stat. 759, sec. 101, 76 Stat. 72; 5 U.S.C. 22, 19 U.S.C. 66, 1624, Gen. Hdnote. 11, Tariff Schedules of the United States, except as otherwise noted. SOURCE: The provisions of this Part 14 appear at 28 F.R. 14728, Dec. 31, 1963, unless otherwise noted. § 14.1 Order of appraisement; designation of packages for examination. (a) The designation of packages or quantities of merchandise for examination shall be deemed an order of appraisement for the purposes of section 488, Tariff Act of 1930.1 (b) Not less than 1 package of every 10 packages of merchandise shall be designated by the collector to be examined for the purpose of appraisement, unless a special regulation permits a less number of packages to be examined.' Col 1 "The collector within whose district any merchandise is entered shall cause such merchandise to be appraised." (Tariff Act of 1930, sec. 488; 19 U. S. C. 1488) The collector shall designate the packages or quantities covered by any invoice or entry which are to be opened and examined for the purpose of appraisement or otherwise and shall order such packages or quantities to be sent to the public stores or other places for such purpose. Not less than one package of every ten packages of merchandise shall be so designated unless the Secretary of the Treasury, from the character and description of the merchandise, is of the opinion that the examination of a less proportion of packages will amply protect the revenue and by special regulation or instruction, the application of which may be restricted to one or more individual ports or to one or more importations or one or more classes of merchandise, permit a less number of packages to be examined. All such special regulations or instructions shall be published lectors of customs are specially authorized to designate for examination a less number of packages than one package of every ten packages, but not less than one package of every invoice, in the case of any merchandise which is (1) imported in packages the contents and values of which are uniform, or (2) imported in packages the contents of which are identical as to character although differing as to quantity and value per package. (c) This section shall not be construed to preclude the examination of packages in addition to the minimum number hereby permitted to be examined if the collector or the appraiser shall deem it necessary that a greater number of packages be examined. (Secs. 488, 499, 46 Stat. 725, 728, as amended; 19 U.S.C. 1488, 1499) § 14.2 Examination of merchandise; procedure. (a) The appraiser shall cause to be examined all merchandise designated by the collector and such additional quantities, packages, or parts thereof as he may deem necessary.3 Such merchandise shall be examined at the in the weekly Treasury Decisions within fifteen days after issuance and before the liquidation of any entries affected thereby. The collector or the appraiser may require such additional packages or quantities as either of them may deem necessary. (Tariff Act of 1930, sec. 499, as amended; 19 U. S. C. 1499) 3 "It shall be the duty of the appraiser under such rules and regulations as the Secretary of the Treasury may prescribe "(1) To appraise the merchandise in the unit of quantity in which the merchandise is usually bought and sold by ascertaining or estimating the value thereof by all reasonable ways and means in his power, any statement of cost or cost of production in any invoice, affidavit, declaration, or other document to the contrary notwithstanding; "(2) To ascertain the number of yards, parcels, or quantities of the merchandise ordered or designated for examination; "(3) To ascertain whether the merchandise has been truly and correctly invoiced; "(4) To describe the merchandise in order that the collector may determine the dutiable classification thereof; and "(5) To report his decisions to the collector." (Tariff Act of 1930, sec. 500 (a); 19 U. S. C. 1500 (a)) If any package is found by the appraiser to contain any article not specified in the invoice and he reports to the collector that in his opinion such article was omitted from the invoice with fraudulent intent on the part of the seller, shipper, owner, or agent, the contents of the entire package in hereinafter public stores, except as provided for. With the consent of the appraiser, merchandise which cannot conveniently be examined at the public stores may be examined on the wharf, at the importer's premises, or at any other suitable place. Matches and other inflammable, explosive, or dangerous articles shall be examined at the importer's premises or other suitable place, but not at the public stores. (b) When, upon the request of the importer, merchandise is examined elsewhere than at the public stores, or at a place other than a port of entry or a customs station at which a customs officer is permanently located, any additional expense, including actual expenses of travel and subsistence but not the salary of the examining officer, shall be paid by the importer, except that no collection need be made if the total amount chargeable against one importer for one day amounts to less than 50 cents. If the total amount chargeable amounts to 50 cents or more, but less than $1, a minimum charge of $1 shall be made. (c) Before permitting the removal of merchandise for examination elsewhere than at the public stores, wharf, or other place in charge of a customs officer, the collector shall require the importer to execute a bond on customs Form 7551, 7553, or other appropriate form, containing a condition for the return of the merchandise if demand for return is made after its release from customs custody upon the completion of final examination for purposes of appraisement. The bond shall contain added conditions that the importer shall hold the merchandise at the place to which it has been removed for examination until it has been released from customs custody; that, if such merchandise has been corded and sealed, the cords and seals shall be kept intact until removed by customs officers; and that the importer shall transfer the merchandise at any time before such release to such place as the collector may direct. (d) If the collector deems it necessary, which such article is found shall be liable to seizure, but if the appraiser reports that no such fraudulent intent is apparent then the value of said article shall be added to the entry and the duties thereon paid accordingly. If a deficiency is found in quantity, weight, or measure in the examination of any package, report thereof shall be made to the collector, (Tariff Act of 1930, sec. 499, as amended; 19 U. S. C. 1499) the packages shall be corded and sealed by a customs officer before being removed from the place of unlading and a caution notice, customs Form 6087, shall be securely affixed thereto. The packages shall be opened only in the presence of a customs officer authorized to examine their contents, and the opening and closing of the packages shall be done by labor furnished by the importer. (e) Upon application by the importer or owner, machinery, altars, shrines, and other articles which must be set up or assembled prior to examination may be examined and appraised at the mill, factory, or other suitable place after being set up or assembled. In all such cases a bond on customs Form 7551, 7553, or other appropriate form shall be taken; the collector also may require that a deposit be made of the estimated additional expense. The packages need not be corded and sealed, but the appraiser may make such preliminary examination as he deems necessary to identify the merchandise with the invoice. After the bond has been filed and any necessary preliminary examination has been made, the collector may permit the merchandise to be removed to the place at which it is to be set up or assembled for examination. Within 90 days after such removal, unless an extension has been applied for and granted by the collector, the importer shall notify the collector or appraiser that the machinery or other articles have been set up or assembled and are ready for examination, whereupon final examination shall be made and the appraisement completed. (f) When merchandise covered by an immediate transportation entry has been authorized by the collector to be delivered to a place outside a port of entry, as provided for in § 18.11 (c) of this chapter, the provisions of paragraphs (a) to (e), inclusive, of this section shall be complied with to the same extent as would have been required if the merchandise had been delivered to the port of entry designated in the transportation entry and then authorized to be examined elsewhere than at the public stores, wharf, or other place where a customs officer is regularly stationed. (g) When deemed sufficient for the purposes, samples of merchandise may be used for examination and appraisement. Representative samples shall be selected by a customs sampler or other authorized customs officer from the merchandise or packages designated by the collector for examination, and shall be properly marked to insure identification and retained as long as the appraiser shall deem necessary. (h) If the appraiser requires samples from packages not designated for examination, he shall request the importer, on customs Form 6525, to submit them and execute the certificate on the reverse side of customs Form 6525. (i) The tobacco examiner at the port of New York shall have general supervision of the examination of all cigars or cigarillos, which may be made or derived in whole or in part of Cuban articles. In addition, he shall have general supervision of the examination of tobacco which may be of Cuban origin when imported in the districts of: The tobacco examiner at the port of Tampa shall have general supervision of the examination of tobacco (not including cigars or cigarillos) which may be of Cuban origin when imported in any district not specified above. (Secs. 488, 499, 46 Stat. 725, 728, as amended; 19 U.S.C. 1488, 1499) § 14.3 Appraisement of merchandise; determination of value. (a) Except as otherwise herein provided for, the value of imported merchandise for appraisement purposes shall be determined in accordance with the provisions of new section 402, Tariff Act of 1930, added by section 2 (a) of the Customs Simplification Act of 1956. The value of imported articles specified in the final list published pursuant to section (a) Basis-Except as otherwise specifically provided for in this act, the value of imported merchandise for the purposes of this act shall be (1) The export value, or (2) If the export value cannot be determined satisfactorily, then the United States value, or (3) If neither the export value nor the United States value can be determined satisfactorily, then the constructed value; except that, in the case on an imported article subject to a rate of duty based on the Ameri 4b 6(a) of that act ** shall be determined in accordance with the provisions of section 402a, Tariff Act of 1930, as redesignated and amended." With respect to any article described on the final list in terms of unit values, the unit value is to be computed in accordance with section 402a for the purpose of ascertaining whether the article undergoing appraisement is included on the list. If the value so computed brings the article within the scope of the value on the final list, such article must be appraised in accordance with section 402a and classified at the rate applicable to the appraised value. If the value so computed places the article outside the scope of the value on the final list, the article must be appraised in accordance with section 402 and classified at the rate applicable to the appraised value. can selling price of a domestic article, such value shall be (4) The American selling price of such domestic article. (b) Export value. For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. (c) United States value. For the purposes of this section, the United States value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal market of the United States for domestic consumption, packed ready for delivery, in the usual wholesale quantities and in the ordinary course of trade, with allowances made for (1) Any commission usually paid or agreed to be paid, or the addition for profit and general expenses usually made, in connection with sales in such market of imported merchandise of the same class or kind as the merchandise undergoing appraisement; (2) The usual costs of transportation and insurance and other usual expenses incurred with respect to such or similar merchandise from the place of shipment to the place of delivery, not including any expense provided for in subdivision (1); and (3) The ordinary customs duties and other (Footnote 4-Continued) Federal taxes currently payable on such or similar merchandise by reason of its importation, and any Federal excise taxes on, or measured by the value of, such or similar merchandise, for which vendors at wholesale in the United States are ordinarily liable. If such or similar merchandise was not so sold or offered at the time of exportation of the merchandise undergoing appraisement, the United States value shall be determined, subject to the foregoing specifications of this subsection, from the price at which such or similar merchandise is so sold or offered at the earliest date after such time of exportation but before the expiration of ninety days after the importation of the merchandise undergoing appraisement. (d) Constructed value. For the purposes of this section, the constructed value of imported merchandise shall be the sum of (1) The cost of materials (exclusive of any internal tax applicable in the country of exportation directly to such materials or their disposition, but remitted or refunded upon the exportation of the article in the production of which such materials are used) and of fabrication or other processing of any kind employed in producing such or similar merchandise, at a time preceding the date of exportation of the merchandise undergoing appraisement which would ordinarily permit the production of that particular merchandise in the ordinary course of business; (2) An amount for general expenses and profit equal to that usually reflected in sales of merchandise of the same general class or kind as the merchandise undergoing appraisement which are made by producers in the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for shipment to the United States; and (3) The cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the merchandise undergoing appraisement in condition, packed ready for shipment to the United States. (e) American Selling Price. For the purposes of this section, the American selling price of any article produced in the United States shall be the price, including the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the article in condition packed ready for delivery, at which such article is freely sold or, in the absence of sales, offered for sale for domestic consumption in the principal market of the United States, in the ordinary course of trade and in the usual wholesale quantities, or the price that the manufacturer, producer, or owner would have received or was willing to receive for such article when sold for domestic consumption in the ordinary course of trade and in the usual wholesale quantities, at the time of exportation of the imported article. (f) Definitions. For the purposes of this section (1) The term "freely sold or, in the absence of sales, offered for sale" means sold or, in the absence of sales, offered (A) To all purchasers at wholesale, or (B) In the ordinary course of trade to one or more selected purchasers at wholesale at a price which fairly reflects the market value of the merchandise, without restrictions as to the disposition or use of the merchandise by the purchaser, except restrictions as to such disposition or use which (1) are imposed or required by law. (ii) limit the price at which or the territory in which the merchandise may be resold, or (iii) do not substantially affect the value of the merchandise to usual purchasers at wholesale. (2) The term "ordinary course of trade" means the conditions and practices which, for a reasonable time prior to the exportation of the merchandise undergoing appraisement, have been normal in the trade under consideration with respect to merchandise of the same class or kind as the merchandise undergoing appraisement. (3) The term "purchasers at wholesale" means purchasers who buy in the usual wholesale quantities for industrial use or for resale otherwise than at retail; or, if there are no such purchasers, then all other purchasers for resale who buy in the usual wholesale quantities; or, if there are no purchasers in either of the foregoing categories, then all other purchasers who buy in the usual wholesale quantities. (4) The term "such or similar merchandise" means merchandise in the first of the following categories in respect of which export value, United States value, or constructed value, as the case may be, can be satisfactorily determined: (A) The merchandise undergoing appraisement and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, the merchandise undergoing appraisement. (B) Merchandise which is identical in physical characteristics with, and was produced by another person in the same country as, the merchandise undergoing appraisement. (C) Merchandise (1) produced in the same country and by the same person as the merchandise undergoing appraisement, (ii) like the merchandise undergoing appraisement in component material or materials and in the purposes for which used, and (iii) approximately equal in commercial value to the merchandise undergoing appraisement. (D) Merchandise which satisfies all the requirements of subdivision (C) except that it was produced by another person. (5) The term "usual wholesale quantities", in any case in which the merchandise in (Footnote 4-Continued) respect of which value is being determined is sold in the market under consideration at different prices for different quantities, means the quantities in which such merchandise is there sold at the price or prices for one quantity in an aggregate volume which is greater than the aggregate volume sold at the price or prices for any other quantity. (g) Transactions Between Related Persons. (1) For the purposes of subsection (c) (1) or (d), as the case may be, a transaction directly or indirectly between persons specified in any one of the subdivisions in paragraph (2) of this subsection may be disregarded if, in the case of any element of value required to be considered, the amount representing that element does not fairly reflect the amount usually reflected in sales in the market under consideration of merchandise of the same general class or kind as the merchandise undergoing appraisement. If a transaction is disregarded under the preceding sentence and there are no other transactions available for consideration, then, for the purposes of subsection (d), the determination of the amount required to be considered shall be based on the best evidence available as to what the amount would have been if the transaction had occurred between persons not specified in any one of the subdivisions in paragraph (2). (2) The persons referred to in paragraph (1) are: (A) Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants; (B) Any officer or director of an organization and such organization; (C) Partners; (D) Employer and employee; (E) Any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting stock or shares of any organization and such organization; and (F) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person. (Section 402, Tariff Act of 1930, as amended; 19 U. S. C. 1401a.) 4a Sec. 6. (a) The Secretary of the Treasury shall determine and make public a list of the articles which shall be valued in accordance with section 402a, Tariff Act of 1930, as amended by this act, as follows: As soon as practicable after the enactment of this act the Secretary shall make public a preliminary list of the imported articles which he shall have determined, after such investigation as he deems necessary, would have been appraised in accordance with section 402 of the Tariff Act of 1930, as amended by this act, at average values for each article which are 95 (or less) per centum of the average values at which such article was actually appraised during the fiscal year 1954. If within sixty days after the publication of such preliminary list any manufacturer, producer, or wholesaler in the United States presents to the Secretary his reason for belief that any imported articles not specified in such list and like or similar to articles manufactured, produced, or sold at wholesale by him would have been appraised in accordance with such section 402 at average values which are 95 (or less) per centum of the average values at which they were or would have been appraised under section 402a, Tariff Act of 1930, as amended by this act, the Secretary shall cause such investigation of the matter to be made as he deems necessary. If in the opinion of the Secretary the reason for belief is substantiated by the investigation, the articles involved shall be added to the preliminary list and such list, including any additions so made thereto, shall be published as a final list. Every article so specified in the final list which is entered, or withdrawn from warehouse, for consumption on or after the thirtieth day following the date of publication of the final list shall be appraised in accordance with the provisions of section 402a, Tariff Act of 1930, as amended by this act. (Sec. 6 (a) 70 Stat. 948.) 4b "(a) BASIS. For the purposes of this Act the value of imported articles designated by the Secretary of the Treasury as provided for in section 6 (a) of the Customs Simplification Act of 1956 shall be "(1) The foreign value or the export value, whichever is higher; "(2) If the appraiser determines that neither the foreign value nor the export value can be satisfactorily ascertained, then the United States value; "(3) If the appraiser determines that neither the foreign value, the export value, nor the United States value can be satisfactorily ascertained, then the cost of production; "(4) In the case of an article with respect to which there is in effect under section 336 a rate of duty based upon the American selling price of a domestic article, then the American selling price of such article. "(c) Foreign value. The foreign value of imported merchandise shall be the market value or the price at the time of exportation of such merchandise to the United States, at which such or similar merchandise is freely offered for sale for home consumption to all purchasers in the principal markets of the country from which exported, in the usual wholesale quantities and in the ordinary course of trade, including the cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States. "(d) Export value The export value of Imported merchandise shall be the market value or the price at the time of exportation of such merchandise to the United States, |