CLA-02 RR:CR:SM 562751 EAC
Port Director
Port of Calexico
U.S. Customs and Border Protection
P.O. Box 632
Calexico, CA 92231
RE: Protest and Application for Further Review 2501-02-100085; liquidation; country of origin; antidumping; fresh garlic; samples; China; Mexico;
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 with members of my staff on November 21, 2003, as well as to factual and legal arguments contained within supplemental material provided to our office at that time. Our decision follows.
FACTS:
The case under consideration pertains to fresh garlic that was entered from Mexico at the U.S. port of Calexico, CA on May 17, 2000. The entry was liquidated on May 24, 2002, and this Protest and Application for Further Review was filed on behalf of PGL Produce, Inc. (hereinafter “protestant”) on August 20, 2002. 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 Calexico obtained a sample of the garlic from the entry. In order to verify the country of origin of the garlic, the sample was sent to the U.S. Customs Research Laboratory in Los Angeles, CA for analysis. In Customs Laboratory Report 7-2000-30160, dated March 8, 2001, the lab reported that “the sample, whole bulbs of garlic, has the characteristics of fresh whole garlic bulbs from China.”
Based upon the laboratory results, CBP determined that the country of origin of the garlic was China and was, therefore, subject to antidumping duties. In response, CF-29 Notices of Action were prepared by CBP, informing the importer that a rate advance had been taken on the entry of fresh garlic due to the finding that the country of origin of the garlic was China. As stated above, the entry was thereafter liquidated on May 24, 2002.
The CBP Port Director at Otay Mesa, CA informed this office by letter dated March 18, 2003, that (subsequent to liquidation) the protestant extended an invitation to CBP employees from the Otay Mesa field office to travel to Mexico in order to obtain fresh garlic samples from protestant’s garlic fields and to inspect protestant’s garlic growing facilities. The protestant’s invitation to inspect, contained within correspondence dated August 20, 2002, was intended to provide CBP with irrefutable evidence that the garlic entry presently under consideration was, in fact, grown in Mexico.
Attached to the protestant’s letter of August 20, 2002, is additional documentation identified as “Exhibit 1.” Exhibit 1 is a summary of events purportedly tracing production of the garlic at issue from purchase of the seed, planting of the seed, growth of the crop, to harvest of the mature garlic bulbs. Also provided with the correspondence of August 20, 2002, was information collectively identified as “Exhibit 2.” Exhibit 2 is a collection of various receipts and records that, according to protestant, corroborates the information set forth in Exhibit 1. Examples of such supporting documents include invoices for garlic seed, field data reports, and transportation records for the time period in question.
In response to protestant’s invitation to inspect, CBP representatives from our Otay Mesa field office, accompanied by counsel for the protestant, traveled to Mexicali, Mexico on October 29, 2002. At that time, the protestant advised CBP that the crops from which the garlic samples were obtained had been planted during September 2002, and that the samples collected were, therefore, approximately one-month old specimens. CBP was afforded the opportunity to obtain five random specimens from the earth of five different fields. Each of the five samples so collected were immediately placed into individual bags and prepared for shipment to the CBP Laboratory in Savannah, GA for analysis. A sixth sample, obtained at a sixth location, was also collected but this particular sample was collected from a storage bin located inside a packing shed. It is our understanding that this sixth sample was, in actuality, “seed” garlic of the Chinese variety and was being stored for eventual introduction into protestant’s field. This sample was also prepared for shipment to the Savannah Laboratory for testing.
The CBP Laboratory in Savannah determined the trace metal profile for each of the six samples by utilizing high resolution ICP/MS. Thereafter, using multivariate discriminant statistical analysis, the trace metal profile of each sample was compared to the Laboratory’s databases for garlic from China and Mexico. Upon completion of the foregoing processes, the Laboratory determined, to a greater than 99 percent probability, that the five randomly harvested samples were of Mexican origin and that the one seed garlic sample was of Chinese origin.
In response to the supplemental factual data provided by protestant to OR&R at the aforementioned meeting of November 21, 2003, CBP subjected garlic powder, derived from the garlic sample initially taken from the entry and tested by the Los Angeles Laboratory, to a second battery of tests by the Savannah Laboratory. The results obtained and reported by the Savannah Laboratory indicate that there is a greater than 99 percent probability that the garlic powder was derived from garlic of Mexican origin.
ISSUE:
What is the country of origin of the garlic subject to this protest?
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 CBP’s reliance on the results to determine the garlic’s country of origin.
In Libas, Ltd. V. United States, 118 F. Supp. 2d 123 (Ct. Int’l Trade 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 (Ct. Intl’l Trade 2000).
The Court in Libas, Ltd. v. United States 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 case under consideration, the CBP Laboratory at Los Angeles determined that a garlic sample taken from the entry matched the trace element profile of other reference garlic samples from China. As noted above, however, subsequent testing performed at the CBP Laboratory in Savannah on powder derived from the same sample indicated that the powder matched the trace element profile of reference garlic samples from Mexico. Therefore, we are of the opinion that the presumption of correctness of the Los Angeles Laboratory’s testing results in this case has been rebutted. Based on the more recent testing results obtained by the Savannah Laboratory and the substantial documentary evidence submitted by the protestant, we find that the country of origin of the garlic subject to this protest is Mexico.
HOLDING:
Based upon the specific facts of this case, the country of origin of the imported garlic is Mexico. Therefore, the protest should be granted in full.
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
Commercial Rulings Division