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HQ W562809

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April 23, 2004

MAR-2 RR:CR:SM 562809 KSG

CATEGORY: CLASSIFICATION

Port Director
Bureau of Customs and Border Protection
555 Battery Street
San Francisco, California 94111

RE: Request for Internal Advice; country of origin determination of fresh garlic

Dear Director:

This is in response to your Request for Internal Advice of October 7, 2003, initiated by counsel for Trade Farm, Inc. by letter of July 7, 2003, concerning the country of origin determination of fresh garlic imported by Trade Farm, Inc.

FACTS:

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. The scope of the antidumping order does not include (a) garlic that has been mechanically harvested and that is primarily, but not exclusively, destined for non-fresh use; or (b) garlic that has been specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed. In order to be excluded from the antidumping duties, garlic that has been mechanically harvested and that is primarily, but not exclusively, destined for non-fresh use; or (b) garlic that has been specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed, must be accompanied by declarations to the Bureau of Customs and Border Protection ("CBP") to that effect.

This case involves five entries of fresh peeled garlic that were entered by Trade Farm, Inc., on June 6, 2002, June 10, 2002, July 10, 2002, July 18, 2002, and July 26, 2002 at the Port of San Francisco. CBP sent samples from the five entries to the Customs Laboratory to determine the country of origin.

Counsel contends that the garlic was grown in Vietnam and the merchandise was entered as a product of Vietnam. Counsel submitted a copy of an invoice from Mai Xuan Fruitex Co. Ltd. that states that the garlic was shipped from Vietnam, and a certificate of origin from Mai Xuan as well as a bill of lading that states that the goods were shipped from Vietnam. Mai Xuan Fruitex, Ltd. also wrote in a letter dated July 8, 2002, that the garlic was bought from farmers in Cong Hoa Village in the North of Vietnam.

The samples sent to the CBP Laboratory were compared with representative samples from China. In the Laboratory reports, dated June 19, 2002, June 21, 2002, July 31, 2002, and August 20, 2002 (covering two entries), CBP determined that "The trace metal 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."

Subsequently, CBP received garlic reference samples from Vietnam, and issued supplemental laboratory reports for all five entries: four reports are dated February 12, 2003, and one report is dated February 20, 2003. All of the supplemental laboratory reports concluded that the country of origin of the garlic sample is China. The reports stated 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 on the laboratory results, CBP determined that the country of origin of the fresh garlic was China and antidumping duties were assessed. Trade Farm received five Notices of Action (CF 29) proposing rate advances dated June 27, 2002 (two CF 29's), August 2, 2002, and two CF 29 notices dated August 26, 2002.

On October 23, 2002, Trade Farm requested in a letter to CBP that CBP officials visit Mai Xuan Fruitex and Cong Hoa Village in Vietnam to verify that Trade Farm's imports were of Vietnamese origin. CBP responded in a letter dated December 10, 2002, that it had received reference samples of Vietnamese garlic and declined the request.

We note that Trade Farm has filed a request under the Freedom of Information Act for information related to database information and the garlic samples. This matter will not be addressed in this ruling.

ISSUE:

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

LAW AND ANALYSIS:

With respect to the country of origin of the garlic in the instant case, the determinative issues are the reliability of the CBP Laboratory’s testing procedures for garlic and our reliance on the results to determine that the garlic is of Chinese origin.

In Libas, Ltd. v. United States, 118 F. Supp. 2d 1233 (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 C.I.T. 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 (C.C.P.A. 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. U.S., 118 F. Supp. 2d 1233, 1234 (CIT 2000).

The Court in Libas, Ltd. v. U.S. 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 testing methods lies with the importer. 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.

The importer has not provided any laboratory tests to demonstrate that another testing method might show that the same samples are of Vietnamese-origin. Rather than producing laboratory evidence that an alternative testing method would render such a result, the importer provided CBP with certificates of origin and invoices from Vietnam showing purchases of garlic. In light of the scientific evidence presented in this case, we find that the certificates of origin and invoices are not persuasive.

In the case under consideration, the CBP Laboratory at Savannah, Georgia, issued lab reports and supplemental reports for all the entries and concluded that the samples matched the trace element profile of other reference garlic samples from China. Based upon the information presented with this case, we are of the opinion that the importer has not provided evidence sufficient to rebut the presumption of correctness in the CBP testing methods. Counsel pointed out that when the original lab results were reached, CPB did not have a profile for garlic from Vietnam. However, CBP subsequently obtained garlic samples from Vietnam and re-tested the samples. The supplemental reports issued confirm the conclusion that the garlic is a product of China.

In consideration of the foregoing, we find that the merchandise at issue was correctly liquidated as originating in China.

HOLDING:

Based on the facts presented in this case, the country of origin of the imported garlic is China for duty purposes.

This decision should be mailed by your office to the party requesting Internal Advice no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to CPB
personnel, and to the public on the CPB 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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