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HQ 563115





March 2, 2006

MAR-2 RR:CTF:VS 563115 EAC

CATEGORY: MARKING

Port Director
Port of San Francisco
U.S. Customs and Border Protection
555 Battery Street
San Francisco, CA 94111

RE: Protest and Application for Further Review 2809-04-100411; liquidation; country of origin; antidumping; fresh garlic; samples; China; Vietnam; CBP Laboratory

Dear Port Director:

The above-referenced protest was forwarded to this office for further review. We have considered the evidence provided with the protest, as well as the points raised by your office and the protestant. We have additionally given consideration to oral arguments set forth by the protestant during the course of a meeting at our offices on October 12, 2005. Our decision follows.

FACTS:

The instant case concerns five entries of fresh garlic imported into the United States from Vietnam at the Port of San Francisco, CA. The first entry was entered on June 6, 2002, and liquidated on May 14, 2004; the second and third entries were entered on June 10, 2002, and liquidated on May 7, 2004; the fourth entry was entered July 18, 2002, and liquidated on May 7, 2004; and, the fifth entry was entered on July 26, 2002, and liquidated on May 7, 2004. This Protest and Application for Further Review was filed on behalf of Trade Farm, Inc. (hereinafter “protestant”) on August 4, 2004. The protest was, therefore, timely filed.

In accordance with Antidumping Order #A570-831, for fresh peeled garlic from the People’s Republic of China, U.S. Customs and Border Protection (“CBP”) officials at the port of San Francisco obtained garlic samples from each entry. In order to verify the country of origin of the garlic, the collected samples were sent to the CBP Laboratory in Savannah, GA for analysis. In lab reports, dated June 19, 2002, June 21, 2002, July 31, 2002, and August 20, 2002 (covering two entries), the CBP Lab reported that: “The trace element profile of the sample was determined by high resolution ICP/MS and the data were compared to our database for garlic using multivariate statistical analysis. The trace metal profile of the sample matches the profile for garlic from China. Note: At this time the laboratory does not have any garlic from Vietnam.”

Thereafter, CBP obtained samples from different regions in Vietnam, including Hai Dong Province, where the protestant’s garlic was allegedly grown. After retesting the protestant’s original garlic samples and comparing the results with those obtained from the Chinese and Vietnamese reference samples, the CBP Lab in Savannah issued supplemental laboratory reports covering the five above-referenced entries. The supplemental reports are dated February 12, 2003 (referencing four entries), and February 20, 2003. The reports similarly state, in pertinent part, that:

This supplemental report provides additional information that was not available when the original report was written. Specifically, the country-of origin prediction now includes reference samples from Vietnam. Using multivariate discriminant statistical analysis, the trace metal profile of the sample was compared to our current databases for garlic from China (27 samples) and Vietnam (18 samples). The results indicate a greater than 99% probability match with Chinese garlic. The results of canonical discriminant analysis also indicate a match with Chinese garlic.

Based upon these results, CBP determined that the country of origin of the fresh garlic was China and antidumping duties were assessed. The protestant subsequently received five Notices of Action on Customs Form (“CF”) 29 proposing rate advances. The notices were dated June 27, 2002 (two CF 29’s), August 2, 2002, and August 26, 2002 (two CF 29’s).

In a letter dated October 23, 2002, the protestant invited CBP officials to visit Cong Hoa Village in the Hai Dong Province of Vietnam in order to verify that the garlic at issue was actually grown in that country. In consideration of the scientific evidence that indicated that the garlic was of Chinese origin, however, CBP declined protestant’s request by letter dated December 10, 2002. It was further noted in this correspondence from CBP that authentic garlic reference samples from Vietnam had already been obtained by the CBP Lab.

On July 7, 2003, the protestant submitted a request for this office to overturn the CBP Lab’s country of origin findings. The San Francisco Port Director thereafter initiated a Request for Internal Advice on October 7, 2003, in response to which this office issued Headquarters Ruling Letter (“HRL”) 562809 dated April 23, 2004. In HRL 562809, we reaffirmed the CBP Lab’s position that the country of origin of the garlic for duty purposes was China. In support of this determination, we noted that the protestant had not proffered any evidence which might indicate that an alternative testing method would render a different result. The protestant’s certificates of origin and invoices from Vietnam showing purchases of garlic were considered, however, we maintained that such documentation was not persuasive in light of the CBP Lab’s scientific evidence. Thereafter, CBP issued instructions to lift suspension of liquidation and to assess antidumping duties for the entries of garlic on March 10, 2004. A courtesy notice was subsequently issued to the protestant setting forth liquidation dates of May 7, 2004 (covering four entries), and May 14, 2004 (covering one entry).

We note that the protestant has filed a request under the Freedom of Information Act (“FOIA”) for information related to CBP Lab database information and the above-referenced garlic samples. The CBP Lab has denied this request. Please be advised that this particular matter will not be addressed further in this ruling.

ISSUE:

What is the country of origin of the garlic subject to this protest?

LAW AND ANALYSIS:

The determinative issues in this case are the reliability of the CBP Laboratory’s testing procedures for garlic and our reliance on the results to find that the garlic is of Chinese origin.

In Libas, Ltd. v. United States, 118 F. Supp. 2d 123 (CIT 2000), the Court noted that CBP’s classification of goods is presumed to be correct, including methods of testing. The Court’s decision states, in pertinent part, that:

By statute, Custom’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, Cust. Dec. 2512 (1965)), aff’d 607 F.2d 985 (CCPA 1979). An importer may rebut the presumption of correctness by “showing that [Customs’s] methods or results are erroneous.” 462 F. Supp. 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, Ltd. V. United States, 118 F. Supp. 2d 1233, 1234 (CIT 2000).

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, 125 L.Ed. 2d 469, 113 S.Ct. 2786 (1993). The Libas court noted that the reliability of CBP’s 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 CBP’s 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 Libas 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, Ltd. v. United States, 193 F.3d 1361, 1366 (Fed. Cir. 1999).

The precedent cited above demonstrates that the initial burden of proof in challenging the reliability of CBP’s testing methods lies with the protestant. As the court noted in Libas, an importer may rebut the presumption of correctness by showing that CBP’s methods or results are erroneous. Also, according to the Libas Court, if a prima facie case is made out, the presumption is destroyed and the Government has the burden of going forward with the evidence.

In the instant case, the CBP Laboratory at Savannah initially determined that the subject garlic samples matched the trace element profile of garlic reference samples from China. A second round of tests, performed after reference samples from Vietnam had been obtained, indicated that the garlic matched the trace element profile of garlic reference samples from China and not those from Vietnam. As in HRL 562809, the protestant has not provided this office with any scientific evidence that might demonstrate that another testing method would show that the garlic is of Vietnamese origin. Rather than producing such evidence, the protestant has proffered certificates of origin and invoices from Vietnam reflecting certain purchases of garlic. In consideration of the scientific evidence obtained from two rounds of laboratory testing, however, we do not find such information persuasive.

With respect to the scientific tests under consideration in this case, we direct your attention to an article authored by a CBP chemist from the CBP Lab in Savannah that was recently published in the Journal of Agriculture and Food Chemistry by the American Chemical Society1

1 See, “Determination of the Country of Origin of Garlic (Allium sativum) Using Trace Metal Profiling” published on April 14, 2005, in the Journal of Agricultural and Food Chemistry (pages 4041-4045) by the American Chemical Society; Ralph G. Smith – U.S. Customs and Border Protection Laboratory (Savannah). . The article, entitled Determination of the Country of Origin of Garlic (Allium sativum) Using Trace Metal Profiling, describes the methods performed by the CBP Lab when comparing the trace metal profile of garlic samples to an authentic garlic database, protocols for sample preparation, high-resolution inductively coupled plasma mass spectrometry, multivariate statistics, and the criteria used for making country of origin determinations. In describing the criteria the CBP Lab relies upon when reporting the country of origin of garlic, the author notes:

The criteria used for reporting a country of origin different from that claimed on the CBP entry document includes the following: There must be a greater than 90% probability match as determined by discriminant analysis with cross- validation, and there must be a match with the canonical discriminant variable using two standard deviations around the mean for each country. This conservative approach provides a mechanism for the laboratory to report that the sample either (i) matches the profile of the country claimed, (ii) matches the profile for a suspect country, or declare the results to be inconclusive.

Smith at 4044.

As noted, the criteria used for making country of origin determinations and the conservative approach utilized in reporting results ensures that CBP will not report a country of origin different from that claimed on entry documents unless there is a greater than 90% probability match as determined by discriminant analysis with cross-validation. Moreover, there must also be a match with the canonical discriminant variable using two standard deviations around the mean for each subject country. As applied, the samples in the instant case have been reported as having a greater than 99% probability match with garlic from China. This result is further supported by a canonical discriminant analysis that also indicates a match with Chinese garlic. Therefore, it is our belief that the results obtained and reported by the CBP Lab in this case are correct and that the country of origin of the subject garlic is China.

As noted, supra, the protestant’s request under the FOIA for CBP Lab database information will not be addressed in this protest. However, with respect to the origin claim presently under consideration, we note that counsel for the protestant has argued by letter dated August 3, 3004, that CBP “has precluded Trade Farm from presenting alternative scientific evidence” and that “CBP deprived Trade Farm of due process by precluding it from presenting alternative scientific evidence, dismissing the probative value of the extensive, uncontested documentation supporting Trade Farm’s claim that the garlic was of Vietnamese origin, and refusing to verify its testing methodology by obtaining reference samples from Cong Hoa Village to compare with reference samples from the adjacent area of China.” We disagree with counsel’s assertions.

Regarding counsel’s claim that CBP precluded the protestant from presenting alternative scientific evidence, we believe that it is evident that the protestant has had ample opportunity to independently obtain and present such evidence. Rather than preclude supplementary scientific information, CBP would have accepted and given ample consideration to any such evidence presented. However, we reiterate that the protestant has not presented any alternative scientific evidence that would show that the CBP Lab’s results are erroneous or that another method would show that the garlic is of Vietnamese origin. As to whether the CBP Lab’s testing methods were verified in this particular case, we note that the protestant’s garlic failed to match the trace metal profile of garlic obtained from the same province in Vietnam as the subject garlic was purportedly grown but twice matched, to a high degree of probability, the trace metal profile of reference garlic samples from China. We believe that such testing methods, and the results obtained therefrom, clearly validate the CBP Lab’s techniques in this case.

Finally, counsel argues that, under Libas, the protestant has met their initial burden of proof in challenging the reliability of CBP’s testing methods because the lab was not in possession of reference garlic samples from Vietnam during the first round of testing. However, it should be recognized that the protestant’s samples nonetheless matched the trace metal profile for garlic from China during the first round of testing. These results were corroborated by the second round of testing which clearly demonstrated that the protestant’s garlic (1) matched the trace metal profile of garlic from China and (2) was not consistent with garlic from Vietnam. As the results obtained from both rounds of testing consistently showed that China was the country of origin of the subject garlic, it remains our opinion that the protestant has not met their initial burden of proof in challenging the reliability of CBP’s testing methods.

Therefore, in consideration of the facts before us, we find that the garlic at issue was correctly liquidated as originating in China.

HOLDING:

Based upon the specific facts of this case, the country of origin of the imported garlic is China. Therefore, the protest should be denied.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, 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 make the decision available to CBP personnel, and to the public on the CBP 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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