§ 165

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 160, 162, 163, 165 to 171 of this title.

CONSTRUCTED VALUE

§ 165. Constructed value

(a) Determination

For the purposes of sections 160 to 171 of this title, 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 under consideration 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 under consideration which are made by producers in the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, except that (A) the amount for general expenses shall not be less than 10 per centum of the cost as defined in paragraph (1), and (B) the amount for profit shall not be less than 8 per centum of the sum of such general expenses and cost; and

(3) the cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the merchandise under consideration in condition, packed ready for shipment to the United States.

(b) Transactions disregarded; best evidence

For the purposes of this section, a transaction directly or indirectly between persons specified in any one of the paragraphs in subsection (c) of this section 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 under consideration. If a transaction is disregarded under the preceding sentence and there are no other transactions available for consideration, then 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 paragraphs in subsection (c) of this section.

(c) Persons involved in disregarded transactions

The persons referred to in subsection (b) of this section are:

(1) Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants;

(2) Any officer or director of an organization and such organization;

(3) Partners;

indirectly

(4) Employer and employee; (5) Any person directly or 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

(6) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person.

(May 27, 1921, ch. 14, § 206, 42 Stat. 213; Aug. 14, 1958, Pub. L. 85-630, § 4(a), 72 Stat. 584.)

AMENDMENTS

1958-Subsec. (a), formerly entire section, so designated by Pub. L. 85-630, and amended by substituting "constructed value" for "cost of production", and inserting provisions excluding from consideration in determining cost of materials any internal tax applicable in the country of exportation directly to the materials or their disposition, but remitted or refunded upon the exportation of the article in the production of which the materials are used.

Subsecs. (b) and (c). Pub. L. 85-630 added subsecs. (b) and (c).

EFFECTIVE DATE OF 1958 AMENDMENT

For provisions relating to effective date and applicability of the amendment to this section by Pub. L. 85630, see section 6 of Pub. L. 85-630, set out as an Effective Date of 1958 Amendment note under section 160 of this title.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 160, 162 to 164, 166 to 171 of this title.

EXPORTER

§ 166. Exporter defined

For the purposes of sections 160 to 171 of this title, the exporter of imported merchandise shall be the person by whom or for whose account the merchandise is imported into the United States:

(1) If such person is the agent or principal of the exporter, manufacturer, or producer;

or

(2) If such person owns or controls, directly or indirectly, through stock ownership or control or otherwise, any interest in the business of the exporter, manufacturer, or producer;

or

(3) If the exporter, manufacturer, or producer owns or controls, directly or indirectly, through stock ownership or control or otherwise, any interest in any business conducted by such person; or

(4) If any person or persons, jointly or severally, directly or indirectly, through stock ownership or control or otherwise, own or control in the aggregate 20 per centum or more of the voting power or control in the business carried on by the person by whom or for whose account the merchandise is imported into the United States, and also 20 per centum or more of such power or control in the business of the exporter, manufacturer, or producer.

(May 27, 1921, ch. 14, § 207, 42 Stat. 14.)

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 160, 162 to 165, 167 to 171 of this title.

purchase price, and the exporter's sales price, and the action of such customs officer in assessing special dumping duty, shall have the same force and effect and be subject to the same right of protest, under the same conditions and subject to the same limitations; the United States Customs Court, and the Court of Customs and Patent Appeals shall have the same jurisdiction, powers, and duties in connection with such appeals and protests as in the case of protests relating to customs duties under existing law.

(May 27, 1921, ch. 14, § 210, 42 Stat. 15; May 28, 1926, ch. 411, § 1, 44 Stat. 669; Mar. 2, 1929, ch. 488, § 1, 45 Stat. 1475; Aug. 14, 1958, Pub. L. 85630, 84(b), 72 Stat. 585; June 2, 1970, Pub. L. 91-271, title III, § 314, 84 Stat. 293.)

CODIFICATION

Words "general appraisers" were deleted from this section in view of change of name to United States Customs Court by act May 28, 1926. See also section 405a of this title.

AMENDMENTS

1970-Pub. L. 91-271 substituted "appropriate customs officer" for "appraiser or person acting as appraiser" and "such customs officer" for "the collector", and struck out applicability to appeals relating to the determination of special dumping duties. 1958-Pub. L. 85-630 substituted "constructed value" for "cost of production".

EFFECTIVE DATE OF 1970 AMENDMENT

Amendment to take effect with respect to articles entered, or withdrawn from warehouse for consumption, on or after Oct. 1, 1970, and such other articles entered or withdrawn from warehouse for consumption, prior to such date, or with respect to which a protest has not been disallowed in whole or in part before Oct. 1, 1970, see section 203 of Pub. L. 91-271, set out as an Effective Date of 1970 Amendment note under section 1500 of this title.

(1) The term "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 regard to restrictions as to the disposition or use of the merchandise by the purchaser except that, where such restrictions are found to affect the market value of the merchandise, adjustment shall be made therefor in calculating the price at which the merchandise is sold or offered for sale.

(2) The term “ordinary course of trade" means the conditions and practices which, for a reasonable time prior to the exportation of the merchandise under consideration, have been normal in the trade under consideration with respect to merchandise of the same class or kind as the merchandise under consideration.

(3) The term "such or similar merchandise" means merchandise in the first of the following categories in respect of which a determination for the purposes of sections 160 to 171 of this title can be satisfactorily made:

(A) The merchandise under consideration and other merchandise which is identical in physical characteristics with, and was produced in the same country by the same person as, the merchandise under consideration.

(B) Merchandise (i) produced in the same country and by the same person as the merchandise under consideration, (ii) like the merchandise under consideration in component material or materials and in the purposes for which used, and (iii) approximately equal in commercial value to the merchandise under consideration.

(C) Merchandise (i) produced in the same country and by the same person and of the same general class or kind as the merchandise under consideration, (ii) like the merchandise under consideration in the purposes for which used, and (iii) which the Secretary or his delegate determines may reasonably be compared for the purposes of sections 160 to 171 of this title with the merchandise under consideration.

(4) The term "usual wholesale quantities", in any case in which the merchandise in 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.

(May 27, 1921, ch. 14, § 212, as added Aug. 14, 1958, Pub. L. 85-630, §5, 72 Stat. 585, and amended Jan. 3, 1975, Pub. L. 93-618, title III, § 321(e), 88 Stat. 2048.)

AMENDMENTS

1975-Par. (3). Pub. L. 93-618 struck out subpar. (B) relating to merchandise which was identical in physical characteristics with, and was produced by another

section 1338(a) of this title; section 183, see section 1338(b) of this title; section 184, see section 1338(c) of this title; section 185, see section 1338(d) of this title; section 186, see section 1338(e) of this title; section 187, see section 1338(f) of this title; section 188, see section 1338(g) of this title; section 189, see section 1338(h) of this title; section 190, see section 1338(i) of this title.

SPECIAL PROVISIONS

§§ 191, 192. Repealed. June 17, 1930, ch. 497, title IV, § 651(a)(1), (4), 46 Stat. 762, eff. June 18, 1930

Section 191, act Sept. 21, 1922, ch. 356, title III, § 322, 42 Stat. 948, related to duties on automobiles, etc., sold foreign Governments.

Section 192, R.S. § 2804; act Aug. 27, 1894, ch. 349, § 26, 28 Stat. 552, related to entry of cigars.

§§ 193 to 195. Repealed. Pub. L. 87-456, title III, § 303(c), May 24, 1962, 76 Stat. 78

Section 193, act Jan. 9, 1883, ch. 17, 22 Stat. 402, related to grain brought from Canada for grinding. See Revised Tariff Schedules set out in section 1202 of this title.

Section 194, act May 18, 1896, ch. 195, 29 Stat. 122, provided for the return free of articles and livestock exported for exhibition. See Revised Tariff Schedules set out in section 1202 of this title.

Section 195, act Mar. 3, 1899, ch. 454, 30 Stat. 1372, provided for free entry of animals taken abroad with circus or menagerie. See Revised Tariff Schedules set out in section 1202 of this title.

§ 196. Repealed. June 17, 1930, ch. 497, title IV, § 651(a)(1), 46 Stat. 762, eff. June 18, 1930 Section, act Sept. 21, 1922, ch. 356, title III, § 319, 42 Stat. 947, related to duties imposed on certain previous imports and basis upon weight at time of entry.

§ 196a. Repealed. Pub. L. 87-456, title III, § 303(c), May 24, 1962, 76 Stat. 78

Section, act Aug. 27, 1949, ch. 517, § 1, 63 Stat, 666, provided for free importation of articles for members of armed forces of foreign countries. See Revised Tariff Schedules set out in section 1202 of this title.

EFFECTIVE DATE OF REPEAL

For effective date of repeal see section 501(a) of Pub. L. 87-456, set out as an Effective Date of Tariff Classification Act of 1962 note preceding section 1202 of this title.

PAYMENT OF DUTY

§ 197. Duties, how payable

Except as provided in section 198 of this title all duties upon imports shall be collected in ready money, and shall be paid in gold and silver coin, coin certificates, and such other certificates or Treasury notes as may by law be declared receivable in payment thereof.

(R.S. §§ 3009, 3473; Feb. 27, 1877, ch. 69, § 1, 19 Stat. 247, 249.)

CODIFICATION

R.S. 3009 was from acts Mar. 2, 1833, ch. 55, §3, 4 Stat. 630; Aug. 6, 1846, ch. 84, § 1, 9 Stat. 53; Feb. 25, 1862, ch. 33, § 5, 12 Stat. 346.

R.S. § 3473 was from act Aug. 6, 1846, ch. 90, § 18, 9 Stat. 64, and other acts including section 23 of act June 3, 1864, ch. 106, 13 Stat. 106. The act of June 3, 1864 is the National Bank Act, see section 38 of Title 12, Banks and Banking.

Provisions of R.S. § 3473 relating to payment of taxes and all other debts and demands than duties on imports, are set out in section 198 of Title 31, Money and Finance.

Prior to its incorporation into the Code, R.S. § 3009, as amended by act Feb. 27, 1877, ch. 69, § 1, 19 Stat. 247, read as follows:

"All duties upon imports shall be collected in ready money, and shall be paid in coin or coin certificates or in United States notes, payable on demand, authorized to be issued prior to the twenty-fifth day of February, one thousand eight hundred and sixty-two, and by law receivable in payment of public dues."

R.S. §3473 as amended by act Feb. 27, 1877, ch. 69, § 1, 19 Stat. 249, read as follows:

"All duties on import shall be paid in gold and silver coin only, coin certificates or in demand Treasury notes, issued under the authority of the acts of July seventeen, eighteen hundred and sixty-one, chapter five; and February twelve, eighteen hundred and sixty-two, chapter twenty; and all taxes and all other debts and demands than duties on imports, accruing or becoming due to the United States, shall be paid in gold and silver coin, Treasury notes, United States notes, or notes of national banks."

Their provisions were changed to conform to section 198 of this title authorizing the receipt of certified checks in payment of duties; section 405 of Title 31, Money and Finance (act Feb. 28, 1878, ch. 20, §3, 20 Stat. 26) making certain certificates and treasury notes receivable for customs; section 451 of Title 31, Money and Finance (act Dec. 24, 1919, ch. 15, § 1, 41 Stat. 370) making gold certificates a legal tender in payment of all debts and dues, public and private; and a provision of act Mar. 14, 1900, ch. 41, § 6, 31 Stat. 47, as amended (omitted from the Code as superseded by section 451 of Title 31, Money and Finance) that gold certificates should be receivable for customs.

CROSS REFERENCES

Coins and currencies of United States as legal tender for all public debts, charges, taxes, duties, and dues, see section 392 of Title 31, Money and Finance.

Gold coin discontinued and existing gold coins withdrawn from circulation, see section 315b of Title 31. Provisions for payment of obligations in gold as against public policy, see section 463 of Title 31.

§ 198. Certified checks; receivable for all public dues; lien for payment of

It shall be lawful for collecting officers to receive certified checks drawn on National and State banks and trust companies, during such time and under such regulations as the Secretary of the Treasury may prescribe, in payment for duties on imports, and all public dues, including special customs deposits. No person, however, who may be indebted to the United States on account of duties on imports who shall have tendered a certified check or checks as provisional payment for such duties or taxes, in accordance with the terms of this section, shall be released from the obligation to make ultimate payment thereof until such certified check so received has been duly paid; and if any such check so received is not duly paid by the bank on which it is drawn and so certifying the United States shall, in addition to its right to exact payment from the party originally indebted therefor, have a lien for the amount of such check upon all the assets of such bank; and such amount shall be paid out of its assets in preference to any or all other claims whatsoever against said bank, except the necessary costs and expenses of administration and the reimbursement of the United States for the amount expended in the redemption of the circulating notes of such bank.

(Mar. 2, 1911, ch. 191, § 1, 36 Stat. 965; Mar. 3, 1913, ch. 119, 37 Stat. 733.)