19 U.S.C. § 1677a — Export price and constructed export

Page 398 TITLE 19—CUSTOMS DUTIES § 1677a Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective, except as otherwise provided, on the date on which the WTO Agreement enters into force with respect to the United States (Jan. 1, 1995), and applicable with respect to in- vestigations, reviews, and inquiries initiated and peti- tions filed under specified provisions of this chapter after such date, see section 291 of Pub. L. 103–465, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–647 applicable as if such amendment took effect on Aug. 23, 1988, see section 9001(b) of Pub. L. 100–647, set out as an Effective and Termination Dates of 1988 Amendments note under sec- tion 58c of this title. § 1677a. Export price and constructed export price (a) Export price The term ‘‘export price’’ means the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject mer- chandise outside of the United States to an un- affiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c). (b) Constructed export price The term ‘‘constructed export price’’ means the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not af- filiated with the producer or exporter, as ad- justed under subsections (c) and (d). (c) Adjustments for export price and constructed export price The price used to establish export price and constructed export price shall be— (1) increased by— (A) when not included in such price, the cost of all containers and coverings and all other costs, charges, and expenses incident to placing the subject merchandise in condi- tion packed ready for shipment to the United States, (B) the amount of any import duties im- posed by the country of exportation which have been rebated, or which have not been collected, by reason of the exportation of the subject merchandise to the United States, and (C) the amount of any countervailing duty imposed on the subject merchandise under part I of this subtitle to offset an export sub- sidy, and (2) reduced by— (A) except as provided in paragraph (1)(C), the amount, if any, included in such price, attributable to any additional costs, charges, or expenses, and United States im- port duties, which are incident to bringing the subject merchandise from the original place of shipment in the exporting country to the place of delivery in the United States, and (B) the amount, if included in such price, of any export tax, duty, or other charge im- posed by the exporting country on the expor- tation of the subject merchandise to the United States, other than an export tax, duty, or other charge described in section 1677(6)(C) of this title. (d) Additional adjustments to constructed export price For purposes of this section, the price used to establish constructed export price shall also be reduced by— (1) the amount of any of the following ex- penses generally incurred by or for the ac- count of the producer or exporter, or the affili- ated seller in the United States, in selling the subject merchandise (or subject merchandise to which value has been added)— (A) commissions for selling the subject merchandise in the United States; (B) expenses that result from, and bear a direct relationship to, the sale, such as cred- it expenses, guarantees and warranties; (C) any selling expenses that the seller pays on behalf of the purchaser; and (D) any selling expenses not deducted under subparagraph (A), (B), or (C); (2) the cost of any further manufacture or assembly (including additional material and labor), except in circumstances described in subsection (e); and (3) the profit allocated to the expenses de- scribed in paragraphs (1) and (2). (e) Special rule for merchandise with value added after importation Where the subject merchandise is imported by a person affiliated with the exporter or pro- ducer, and the value added in the United States by the affiliated person is likely to exceed sub- stantially the value of the subject merchandise, the administering authority shall determine the constructed export price for such merchandise by using one of the following prices if there is a sufficient quantity of sales to provide a reason- able basis for comparison and the administering authority determines that the use of such sales is appropriate: (1) The price of identical subject merchan- dise sold by the exporter or producer to an un- affiliated person. (2) The price of other subject merchandise sold by the exporter or producer to an unaffili- ated person. If there is not a sufficient quantity of sales to provide a reasonable basis for comparison under paragraph (1) or (2), or the administering au- thority determines that neither of the prices de- scribed in such paragraphs is appropriate, then the constructed export price may be determined on any other reasonable basis. (f) Special rule for determining profit (1) In general For purposes of subsection (d)(3), profit shall be an amount determined by multiplying the total actual profit by the applicable percent- age. (2) Definitions For purposes of this subsection: Page 399 TITLE 19—CUSTOMS DUTIES § 1677b (A) Applicable percentage The term ‘‘applicable percentage’’ means the percentage determined by dividing the total United States expenses by the total ex- penses. (B) Total United States expenses The term ‘‘total United States expenses’’ means the total expenses described in sub- section (d)(1) and (2). (C) Total expenses The term ‘‘total expenses’’ means all ex- penses in the first of the following cat- egories which applies and which are incurred by or on behalf of the foreign producer and foreign exporter of the subject merchandise and by or on behalf of the United States sell- er affiliated with the producer or exporter with respect to the production and sale of such merchandise: (i) The expenses incurred with respect to the subject merchandise sold in the United States and the foreign like product sold in the exporting country if such expenses were requested by the administering au- thority for the purpose of establishing nor- mal value and constructed export price. (ii) The expenses incurred with respect to the narrowest category of merchandise sold in the United States and the export- ing country which includes the subject merchandise. (iii) The expenses incurred with respect to the narrowest category of merchandise sold in all countries which includes the subject merchandise. (D) Total actual profit The term ‘‘total actual profit’’ means the total profit earned by the foreign producer, exporter, and affiliated parties described in subparagraph (C) with respect to the sale of the same merchandise for which total ex- penses are determined under such subpara- graph. (June 17, 1930, ch. 497, title VII, § 772, as added Pub. L. 96–39, title I, § 101, July 26, 1979, 93 Stat. 181; amended Pub. L. 98–573, title VI, § 614, Oct. 30, 1984, 98 Stat. 3036; Pub. L. 103–465, title II, § 223, Dec. 8, 1994, 108 Stat. 4876.) Editorial Notes AMENDMENTS 1994—Pub. L. 103–465 amended section generally, sub- stituting present provisions for provisions defining ‘‘United States price’’, ‘‘purchase price’’, and ‘‘export- er’s sales price’’ and providing for adjustments to pur- chase price and exporter’s sales price. 1984—Subsec. (b). Pub. L. 98–573 inserted ‘‘a reseller or’’ before ‘‘the manufacturer’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective, except as otherwise provided, on the date on which the WTO Agreement enters into force with respect to the United States (Jan. 1, 1995), and applicable with respect to in- vestigations, reviews, and inquiries initiated and peti- tions filed under specified provisions of this chapter after such date, see section 291 of Pub. L. 103–465, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–573 effective Oct. 30, 1984, see section 626(a) of Pub. L. 98–573, set out as a note under section 1671 of this title. § 1677b. Normal value (a) Determination In determining under this subtitle whether subject merchandise is being, or is likely to be, sold at less than fair value, a fair comparison shall be made between the export price or con- structed export price and normal value. In order to achieve a fair comparison with the export price or constructed export price, normal value shall be determined as follows: (1) Determination of normal value (A) In general The normal value of the subject merchan- dise shall be the price described in subpara- graph (B), at a time reasonably cor- responding to the time of the sale used to determine the export price or constructed export price under section 1677a(a) or (b) of this title. (B) Price The price referred to in subparagraph (A) is— (i) the price at which the foreign like product is first sold (or, in the absence of a sale, offered for sale) for consumption in the exporting country, in the usual com- mercial quantities and in the ordinary course of trade and, to the extent prac- ticable, at the same level of trade as the export price or constructed export price, or (ii) in a case to which subparagraph (C) applies, the price at which the foreign like product is so sold (or offered for sale) for consumption in a country other than the exporting country or the United States, if— (I) such price is representative, (II) the aggregate quantity (or, if quan- tity is not appropriate, value) of the for- eign like product sold by the exporter or producer in such other country is 5 per- cent or more of the aggregate quantity (or value) of the subject merchandise sold in the United States or for export to the United States, and (III) the administering authority does not determine that the particular mar- ket situation prevents a proper compari- son with the export price or constructed export price. (C) Third country sales This subparagraph applies when— (i) the foreign like product is not sold (or offered for sale) for consumption in the ex- porting country as described in subpara- graph (B)(i), (ii) the administering authority deter- mines that the aggregate quantity (or, if quantity is not appropriate, value) of the foreign like product sold in the exporting country is insufficient to permit a proper comparison with the sales of the subject merchandise to the United States, or