HQ 966365 - Further Review of Protest No. 4601-02-103801; Fresh peeled garlic from China; Country of Origin; Libas v. United States - United States International Trade Commision Rulings

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HQ 966365

August 22, 2003

CLA-2 RR:CR:GC 966365 DSS

CATEGORY: MARKING

TARIFF NO.: N/A

Port Director c/o Residual Liquidation and Protest Branch U.S. Customs and Border Protection
1210 Corbin Street

Elizabeth, NJ 07201

RE: Further Review of Protest No. 4601-02-103801; Fresh peeled garlic from China; Country of Origin; Libas v. United States

Dear Port Director:

This is in response to the request for further review of Protest 4601-02-103801, Merex, Corp. (protestant) filed against your demand for redelivery of certain fresh peeled garlic to be marked as originating from the People’s Republic of China. The protestant claims that the imported merchandise originates from Thailand. Counsel for the protestant also made a factual and legal presentation during a teleconference with members of my staff on August 4, 2003 and submitted supplementary material on August 5, 2003, which was considered when rendering our decision.

FACTS:

This case involves the entry of 1908 boxes of fresh peeled garlic entered on July 17, 2002. The Bureau of Customs and Border Protection (CBP or Customs) released the goods on July 19, 2002. A Demand for Redelivery (CF-4647) was issued on August 8, 2002 demanding that the merchandise be labeled as “Produced in China.” The protest was filed on November 7, 2002, so it was timely filed.

The protestant contends that the garlic was grown in Thailand and the merchandise was properly entered as a product of Thailand. The protestant states that the fresh garlic involved in this protest comes from bulbs of Chinese origin, but is cultivated and harvested in Thailand.

The Department of Commerce published its final determination of its sales-at-less-than-fair-value investigation of fresh garlic from the People's Republic of China on September 26, 1994 (59 Fed. Reg. 49058, dated September 26, 1994). Antidumping Duty Order A-570-831, (59 Fed. Reg. 59209, dated November 16, 1994), covers all grades of garlic from the People's Republic of China, whole or separated into constituent cloves, whether or not peeled, fresh, chilled, frozen, provisionally preserved, or packed in water or other neutral substance, but not prepared or preserved by the addition of other ingredients or heat processing.

In accordance with Antidumping Order A-570-831, CBP officials at the Port of New York/Newark obtained a representative sample from the entry at issue and sent it to the Office of Laboratories and Scientific Services (L&SS) for analysis to verify the country of origin. The results of the analysis as reported in Customs Laboratory Report SV20021338, dated August 7, 2002, were that: “[t]he trace metal profile of the sample matches the profile for garlic from China. The trace metal profile does not match the profile for Thailand garlic.” Based on the laboratory results, CBP determined that the country of origin of the fresh garlic was China.

As documentary evidence that the garlic is of Thai origin, the protestant has submitted a certificate of origin from the Thai Ministry of Commerce, a Thai Department of Agriculture Phytosanitary Certificate, a plant inspection certificate, and an English translation of a Thai-language original memorandum purportedly from the Thai Department of Agriculture stating that garlic of Chinese origin is grown in certain areas of Thailand and that Chinese-origin fertilizer has been used on agriculture in certain areas of Thailand.

ISSUE:

Whether CBP properly relied on the laboratory testing regarding the country of origin of the imported garlic.

LAW AND ANALYSIS:

On the issue of country of origin determination, this protest hinges on the reliability of the Customs L&SS testing and its determination that the garlic at issue is Chinese origin. L&SS, after analyzing a sample of the merchandise, concluded that the sample had a trace element profile matching that of our Chinese reference profile. See Customs Laboratory Report SV20021338, dated August 7, 2002.

In Libas, Ltd. v. United States, 118 F. Supp. 2d 1233 (CIT 2000), the Court noted that Customs' classification of goods is presumed to be correct, including methods of testing. The court's decision states, in pertinent part, that:

By statute, Customs's classification of goods is presumed to be correct. See 28 U.S.C. 2639 (1994). The presumption applies to every subsidiary fact necessary to support classification, see Commercial Aluminum Cookware Co. v. United States, 20 CIT 1007, 1013, 938 F. Supp. 875, 881 (1996), including the 'methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained' therefrom. Exxon Corp. v. United States, 81 Cust. Ct. 87, 462 F. Supp. 378, 381 (Cust. Ct. 1978) (quoting Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83 (1965)), aff'd 66 C.C.P.A. 129, 607 F. 2d 985 (Cust. & Pat.App. 1979). An importer may rebut the presumption of correctness by 'showing that [Customs's] methods or results are erroneous.' Id. at 382 (quoting same). 'If a prima facie case is made out, the presumption is destroyed and the Government has the burden of going forward with the evidence.' Id. (quoting same).

Libas, 118 F. Supp. 2d at 1234.

The court in Libas noted in particular the higher court's reference to the standard espoused by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court noted that the reliability of Customs laboratory tests should be scrutinized according to the standards set forth in the Daubert case. They include: 1) whether a theory or technique, such as Customs' test, has been tested; 2) whether it has been subjected to peer review and publication; 3) its known or potential rate of error; and 4) whether it is generally or widely accepted. See Daubert, 509 U.S. at 593-94. The court also noted that the Daubert standards relate not only to whether evidence is admissible, but also to how much or how little weight the Court should accord such evidence. See Libas, 118 F. Supp. 2d at 1236.

In the instant case, the protestant has not offered sufficient evidence to impeach the reliability of L&SS’s finding that the origin of the garlic is China. The initial burden of proof in challenging the reliability of Customs test methods lies with the protestant. As the Court noted in Libas, an importer may rebut the presumption of correctness by showing that Customs’ methods or results are erroneous. In this instance, the protestant has failed to meet its burden.

No evidence was provided, for example, that another testing method would show that the same sample is Thai-origin. In this instance, the protestant has not made a prima facie case that L&SS’s methods or findings in determining the country of origin of the garlic are erroneous. Furthermore, the use of trace metal analysis as a tool in determining the geographic origin of agricultural products has been written about in scientific journals and periodicals since the 1980s. These articles have covered agricultural products including orange juice concentrate, potatoes, garlic and coffee.

In this case, the laboratory took a sample from the shipment at issue and compared it to samples it had already obtained. The laboratory concluded that the sample taken from the shipment had a trace element profile which matched that of reference samples from China. We have consulted with the chemist from the laboratory in this case and he stated that trace elements come from the soil and migrate into the plant. In this case, the trace elements findings are supportive of his conclusion that the sample garlic was grown in China. Based on these findings and all the available information, we find that the garlic was grown in China and therefore, is a product of China for duty purposes.

HOLDING:

Based on the facts presented, the country of origin of the imported garlic is China for duty purposes. The protest should be DENIED in full.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with this decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon
Director,

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