CLA-2 RR:CR:SM 562326 KSG
Port Director
Port of Otay Mesa
9777 Via de la Amistad
U.S. Customs Service
San Diego, California 92154
RE: Application for Further Review of Protest No. 2501-01-100140; fresh garlic; laboratory test
Dear Director:
This is in reference to a Protest and Application for Further Review filed by Jacobs Farm Del Cabo, contesting the country of origin determination for certain fresh garlic.
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 Customs Service to that effect.
This case involves the entry of 76 boxes of fresh garlic entered on March 8, 1998, and liquidated on August 17, 2001. The protest was filed on November 14, 2001, so it was timely filed.
The protestant contends that the garlic was grown in Mexico and the merchandise was entered as a product of Mexico. The protestant states that fresh garlic involved in this case is Chinese seed, harvested and cultivated in Mexico.
Customs sent a sample to the Customs Laboratory to be tested. This sample was compared with representative samples from China. In the Laboratory report, dated October 29, 1998, Customs determined that "the sample, whole garlic cloves, has a trace element profile which matches that of our reference samples from China." Based on the laboratory results, Customs determined that the country of origin of the fresh garlic was China.
ISSUE:
Whether Customs properly relied on the Customs Laboratory testing regarding the country of origin of the imported garlic.
LAW AND ANALYSIS:
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 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 Libas 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 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 at 1366.
In this case, the Customs 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. The protestant has not submitted any evidence that challenges the reliability of Customs Laboratory's findings that the origin of the garlic is China. The laboratory report was made available to the protestant as noted in the CF 29, dated July 16, 1999. The protestant also did not request the remaining balance of the sample that the Customs Laboratory used for its tests. No evidence was provided that another testing method would show that the same sample is Mexican-origin. Based on these findings, 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 the 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 the decision should be accomplished prior to mailing of this decision. Sixty days from the date of this 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.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division