VAL RR: IT: VA W546217 TLL
U.S. Customs Service
P.O. Box 3130
Laredo, TX 78044
RE: Application for Further Review of Protest No. 2304-95-100183; Appraisement of Fresh Asparagus; Transaction Value of Identical and Similar Merchandise; "At or About the Time of Exportation"; 19 U.S.C. 1401a(c)
Dear Director:
This is a decision on an application for further review (AFR) of a protest filed October 4, 1995, against your decision concerning the valuation of fresh asparagus. The entries at issue were reliquidated on September 1, 1995. Our office met with counsel concerning this particular issue on September 3, 1996. We regret the delay in responding.
FACTS:
In Headquarters Ruling Letter (HRL) 545755, issued May 18, 1995, Customs issued a protest review decision (PRD) holding that the fresh Mexican summer season asparagus at issue appropriately was appraised based on the transaction value of identical or similar merchandise pursuant to §402(c) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA), codified at 19 U.S.C. 1401a.
In accordance with HRL 545755, importations of fresh asparagus appraised based on transaction value were reexamined to determine if they could serve as the basis of the transaction value for the subject importations. Previously accepted transaction values from eight importers were found which could serve as appropriate bases for appraisement of the instant merchandise pursuant to §402(c). The instant protest specifically concerns your interpretation of the term "at or about the time of exportation" in appraising the merchandise under §402(c).
Counsel makes several arguments on their client's behalf First, counsel submits that it follows from the analysis and language employed in HRL 545755 that all the various values should have been tested for validity, been compared, and the lowest one used to appraise all the summer season asparagus imports. Second, counsel, in emphasizing that the "at or about the time" language appears in several different contexts throughout §402, claims that such strict interpretation of that language is contrary to the statutory mandate. It is counsel’s position that if Congress intended "at" to be statutorily ·preferred over "about," the statute would so indicate with hierarchical language or something to that effect. Finally, counsel provides that the "at" or "about" mandate warrants valuation determinations based on accurate and commercially realistic factors as opposed to simply relying on merchandise exported on, or as close as possible to, the date of exportation of the merchandise being appraised.
Assuming that the statutory time limitations of "at" or "about" are equally preferred, counsel suggests that it is reasonable that "about" the time of exportation encompass any Mexican summer season asparagus exported during that one season. According to counsel, an examination of the product and the trade indicates that in the Mexican import produce business, initial settlement during the busy season often is made on a weekly, biweekly, or longer basis. However, in the case of Mexican summer season asparagus imports, generally, no final settlement is usually made until the end of the entire season and, from a commercial vantage point, the brief summer season for Mexican asparagus is treated as one unit of business.
In addition, counsel alleges that clerical error, mistake of fact or other inadvertence not amounting to a construction of law has occurred which, pursuant to 19 U.S.C. 1520(c)(l) (§520(c)), should be corrected upon reliquidation. In particular, counsel provides that various calculation or mathematical errors appear to have been made as some of the courtesy notices of liquidation and the customs broker's ABI system printouts of liquidation bear different amounts, and some of the bills issued following reliquidation do not correspond to any of the available reliquidated amounts, less the duties paid upon entry.
ISSUE:
Whether the terms "at" or "about" included in the "at or about the time of exportation" language of §402(c) are applied in a hierarchial or collective fashion, and in what manner the language is interpreted.
LAW AND ANALYSIS:
As you are aware, §402(c) of the TAA provides that the transaction value of identical or similar merchandise is the transaction value, accepted as the appraised value under §402(b), of merchandise identical or similar to the merchandise currently being appraised which was exported to the U.S. at or about the time that the merchandise currently being appraised was exported to the U.S. (emphasis added). Furthermore, §402(c) provides that such transaction values are based on sales of identical or similar merchandise at the same commercial level and in substantially the same quantity as the sales of the merchandise being appraised. However, in accordance with §402(c) (2), if two or more transaction values are determined for the identical or similar merchandise, the merchandise is appraised based on the lowest of these values.
Initially, we wish to address several of counsel's perceptions concerning the present matter. First, the language utilized in HRL 545755 was not intended to require the use of the one, lowest transaction value available for all the numerous entries at issue in that decision and elsewhere. Even with regard to the entries covered by HRL 545755 in particular, we phrased our analysis in terms of a specific entry in an effort to provide general guidance in appraising all the individual entries concerning your office.
Second, we do not find instructive counsel's assertions concerning the statutory construction and Congressional intent behind the terms "at" or "about." More appropriately, we recognize that reaching a determination as to the proper interpretation of the "at" or "about" language is not solved merely through such statutory inquiries. In particular, the possibility of providing a concise, standard position or analysis in this regard is complicated by the fact that, to date, neither the TAA, the WTO Valuation Code, nor U.S. administrative or judicial decisions offer specific guidance or solutions concerning this issue.
With regard to §402(c), the term "at or about the time" should cover a period of time, as close to the date of exportation as possible, within which commercial practices and market conditions which affect the price remain the same. This position is consistent with the language included in §402(c) emphasizing the time merchandise is exported to the U.S.
We recognize that such determinations will vary as between different kinds of goods and the attendant factors and circumstances unique to the merchandise and industry. For instance, factors influencing supply and demand, such as fluctuations in the quality, availability, and desirability of a product may have a profound impact on the price a buyer will pay for merchandise from one occasion to the next. It would be appropriate to consider such factors in any reasonable interpretation of the "at" or "about" language.
However, in the case of perishable produce, such as asparagus, prices may fluctuate seasonally, weekly, or even daily. Thus, we find a time period of one week, i.e., seven calendar days, before or after the date of exportation of the instant merchandise being appraised, that is, a total of fourteen days, to represent a time period "about" the time of exportation. Insofar as such merchandise is concerned, this time period reasonably represents a period of time as close to the date of exportation as possible yet within which commercial practices and market conditions which affect the price generally may remain the same. This presumptive time period is appropriate for such commodities, unless overcome by evidence of market or production conditions warranting a shorter or longer time period. Insofar as perishable produce is
concerned, we do not find the entire summer season to represent a time period "about" the time of exportation.
It is our position that the terms "at" or "about" included in the "at or about the time of exportation" language of §402(c) are applied in a hierachial fashion, with resort to values "at" and then "about" the time of exportation. Hence, in selecting a transaction value of identical or similar merchandise in accordance with §402(c), it first would be appropriate to consider transaction values for produce that has been exported "at" the same time as the instant produce, that is, by using transaction values for produce exported on the exact date as the instant produce being appraised. If no transaction value is available for produce exported on the exact date as the instant produce being appraised, it then would be appropriate to consider transaction values for produce exported "about" the same time as the instant produce, that is, by using transaction values for produce exported on the date closest to the date of export of the instant produce being appraised, followed by the next closest date to the date of exportation of the instant produce being appraised, and so forth. In either case, if several transaction values are provided for produce on the exact or closest date of exportation, the lowest would be utilized. Once a transaction value is found, only the value or values on the date closest (before and after) to the date of exportation will be considered; resort to values at a further date within the fourteen day total time period will not be appropriate. If no such values are found within the fourteen day period, resort to an alternate method of appraisement will be necessary.
HOLDING:
The terms "at" or "about," included in the "at or about the time of exportation" language provided in §402(c), are applied in a hierarchial fashion, i.e., "at" then "about." In the case of perishable produce such as asparagus, "about" will be construed as meaning one week, i.e., seven calendar days, before or after the date of exportation of the instant merchandise being appraised, that is, a total of fourteen days. Transaction values for produce that has been exported on the exact date as the instant produce being appraised first are considered. If no transaction value is available for produce exported on the exact date as the instant produce being appraised, transaction values for produce exported on the date closest to the date of export of the instant produce being appraised, followed by the next closest date to the date of exportation of the instant produce being appraised, and so forth next are considered. In this regard, you are directed to deny the protest in accordance with the foregoing.
As far as the §520(c) claim is concerned, without the presentation of any substantive evidence in this regard we cannot grant relief However, we would advise that, upon reliquidation, such amounts be examined by your office for their accuracy and consistency with other records. In this regard, you are directed to deny the protest.
In accordance with Section 3A (l l) (b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Acting Director
International Trade Compliance Division