HQ 544236: Decision on Application for Further Review of Protest No. 1001-5-011625

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                  HQ 544236

                                  October 31, 1988

          CLA-2 CO:R:C:V   544236 EK

          CATEGORY:  Valuation

          Area Director of Customs
          Kennedy Airport Area
          Jamaica, New York

          RE:  Decision on Application for Further Review of
               Protest No. 1001-5-011625

          Dear Sir:

                This is in reference to your decision on the liquidation of
          Entry No. 4701-83-891030 dated May 31, 1985.  The merchandise was
          appraised pursuant to deductive value, section 402(d) of the
          Tariff Act of 1930, as amended by the Trade Agreements Act of
          1979 (TAA; 19 U.S.C. 1401a(d)).

                All interested parties are in agreement that deductive
          value is the correct basis of appraisement.  At issue is the
          proper allowance for international freight pursuant to section
          402(d)(3)(A)(ii) of the TAA.  That section provides for a
          deduction for "the actual costs and associated costs of
          transportation and insurance incurred with respect to
          international shipments of the merchandise concerned from the
          country of exportation to the United States."

                The importer indicates that the proper allowance for
          international freight is that which is noted on the airway bill,
          the actual prepaid freight charge.  Customs rejected the amount
          noted on the airway bill and deducted a freight charge based upon
          the International Air Traffic Association freight rate.  This
          freight rate was used rather than the amount on the airway bill
          because the importer failed to provide proof of payment.  The
          importer and the shipper are related.


          ISSUE:

                Whether the proper amount to be deducted in appraising
          imported merchandise pursuant to deductive value is the actual
          amount listed on the airway bill.  

















                                        - 2 -


          LAW AND ANALYSIS:

                As indicated above, in determining the proper amount to be
          deducted for appraisement pursuant to deductive value, section
          402(d)(3)(A)(ii) clearly states that the actual costs of
          transportation are to be deducted.  Although actual proof of
          payment has not been submitted, the airway bill serves as
          sufficient evidence of the actual costs of transportation.  The
          figure corresponding to the freight chart is not the actual cost
          but rather, a mere estimate.

                The best evidence available for the transportation cost is
          the airway bill, i.e., a bill for the services performed.


          HOLDING:

                In view of the foregoing, the proper deduction to be made
          for transportation pursuant to section 402(d)(3(A)(ii) of the TAA
          is the amount indicated on the airway bill.  You are directed to
          grant the protest in full.  A copy of this decision should be
          attached to the Form 19, Notice of Action, to be sent to the
          protestant.


                                        Sincerely,




                                        John Durant, Director,
                                        Commercial Rulings Division