OT:RR:CTF:FTM: H305105 CDM
Mr. J. Kevin Horgan
deKieffer & Horgan, PLLC
1090 Vermont Avenue, NW, Suite 800
Washington, DC 20005
RE: Revocation of NY N304274 (classification of “Pernod Absinthe Superieure”) and NY N304276 (classification of “Ricard Pastis de Marseille”)
Dear Mr. Horgan:
On June 7, 2019, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letters (“NY”) N304274 and NY N304276 to Adena M. Santiago at Husch Blackwell LLP, representing Pernod Ricard USA, LLC (“Pernod Ricard”). The rulings pertained to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of “Pernod Absinthe Superieure” (NY N304274) and “Ricard Pastis de Marseille” (NY N304276). In NY N304274 and NY N304276, CBP classified both “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” in subheading 2208.70.00, HTSUS, which provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages: Liqueurs and cordials: In containers each holding not over 4 liters.”
You submitted a request for reconsideration of NY N304274 and NY N304276, dated July 16, 2019, on behalf of your client, Pernod Ricard. We have reviewed NY N304274 and NY N304276 and determined them to be in error because the products do not meet the requisite sugar, dextrose, or levulose amount to be classified as liqueurs and cordials, as defined by the regulations of the United States Tobacco Tax and Trade Bureau, providing the standards of identity for distilled spirits. Accordingly, NY N304274 and NY N304276 are revoked.
You have asked that certain information submitted in connection with this request be treated as confidential, pursuant to 19 C.F.R. § 177.2(b)(7). Your request for confidentiality is approved. The information concerning the percentages and/or amounts of ingredients will not be released to the public.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on October 30, 2019, in Volume 53, Number 39, of the Customs Bulletin. Upon publication in the Customs Bulletin, CBP received one comment in support of its proposed action concerning NY N304274 and NY N304276.
FACTS:
In NY N304274, “Pernod Absinthe Superieure” from France was described as follows:
The product consists of a distillate of anise seed and wormwood, drinking water, and herbs extract. “Pernod Absinthe Superieure” has an alcohol volume of 68 percent. The product will be imported in 375 ml bottles.
In NY N304276, “Ricard Pastis de Marseille” from France was described as follows:
“Ricard Pastis de Marseille” [] is Ricard’s Pastis Anise and Licorice Flavored Spirits. The product consists of a mixture of water, ethyl alcohol, sugar, natural extracts of licorice, aniseed, burned sugar, and a blend of aromatic plants. “Ricard Pastis de Marseille” has an alcohol volume of 45 percent. The product will be imported in 750 ml bottles.
In both rulings, Pernod Ricard submitted an ingredients’ breakdown, a photograph, and descriptive literature of the product. Pursuant to the information submitted in NY N304274 and NY N304276, “Pernod Absinthe Superieure” contained no sugar and “Ricard Pastis de Marseille” contained sugar content less than 2.5 percent by weight. In your request for reconsideration of NY N304274 and NY N304276, you confirmed that “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” contain sugar content of less than 2.5 percent volume by weight. There were no samples submitted for reconsideration.
ISSUE:
Whether “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” are properly classified in subheading 2208.70.00, HTSUS, as liqueurs and cordials, or in subheading 2208.90.75, HTSUS, as other spirits.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The 2019 HTSUS provisions under consideration are as follows:
2208 “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages:
* * *
2208.70.00 Liqueurs and cordials:
In containers each holding not over 4 liters
* * *
2208.90.75 Other:
Spirits:
Other
You argue that “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” are flavored spirituous beverages that do not contain the required minimum amount of sweeteners to be classified in subheading 2208.70.00, HTSUS, as liqueurs or cordials and therefore they should be classified in subheading 2208.90.75, HTSUS, which provides for ““Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages: Other: Other: Spirits: Other.”
You also argue that the Explanatory Notes (“ENs”) to the Harmonized Tariff Schedule support your argument that heading 2208, HTSUS, covers, whatever their alcoholic strength:
Spirits produced by distilling wine, cider or other fermented beverages or fermented grain or other vegetable products, without adding flavouring; they retain, wholly or partly, the secondary constituents (esters, aldehydes, acids, higher alcohols, etc.) which give the spirits their peculiar individual flavours and aromas.
(B) Liqueurs and cordials, being spirituous beverages to which sugar, honey or other natural sweeteners and extracts or essences have been added (e.g., spirituous beverages produced by distilling, or by mixing, ethyl alcohol or distilled spirits, with one or more of the following : fruits, flowers or other parts of plants, extracts, essences, essential oils or juices, whether or not concentrated). These products also include liqueurs and cordials containing sugar crystals, fruit juice liqueurs, egg liqueurs, herb liqueurs, berry liqueurs, spice liqueurs, tea liqueurs, chocolate liqueurs, milk liqueurs and honey liqueurs.
(C) All other spirituous beverages not falling in any preceding heading of this Chapter.
Provided that their alcoholic strength by volume is less than 80% vol, the heading also covers undenatured spirits (ethyl alcohol and neutral spirits) which, contrary to those at (A), (B) and (C) above, are characterised by the absence of secondary constituents giving a flavour or aroma. These spirits remain in the heading whether intended for human consumption or for industrial purposes.
In addition to undenatured ethyl alcohol of an alcoholic strength by volume of less than 80% vol, the heading includes, inter alia:
* * *
(6) Spirituous beverages (generally known as liqueurs), such as anisette (obtained from green anise and badian), curaçao, (manufactured with the peel of the bitter orange), kummel (flavoured with caraway or cumin seeds).
(7) The liqueurs known as “crèmes”, because of their consistency or colour. They are generally of relatively low alcoholic content and very sweet (for example, creams of cocoa, bananas, vanilla, coffee). The heading also covers spirits consisting of emulsions of spirit with products such as egg yolk or cream.
* * *
(13) Alcoholic aperitives (absinth, bitters, etc.) other than those with a basis of wine of fresh grapes which fall in heading 22.05.
* * *
EN 22.08. Relying on this EN, you assert that paragraph 13 indicates that aperitives containing insufficient sweeteners should not be grouped with liqueurs and cordials and further that absinth and bitters are to be classified together as unsweetened aperitives. You assert “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” do not contain the required minimum amount of sweeteners to be classified under subheadings 2208.20 through 2208.70, HTSUS, and therefore the only appropriate subheading is the basket provision 2208.90.7500, HTSUSA, for other spirituous products.
“Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” are classifiable under heading 2208, HTSUS, which provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages.”
The issue lies at the six-digit subheading level. The industry standards of identity for cordials and liqueurs indicate that liqueurs or cordials must contain “sugar, dextrose, or levulose, or a combination thereof, in an amount not less than 2.5 percent by weight of the finished product” as defined by Title 27 (Alcohol, Tobacco Products and Firearms) of the Code of Federal Regulations, administered by the Alcohol and Tobacco and Tax and Trade Bureau (“TTB”) of the United States Department of the Treasury. See 27 C.F.R. § 5.22(h). Furthermore, CBP has recognized that to be classified as cordials or liqueurs, the imported spirituous products must contain a minimum of 2.5 percent sugar content. See, e.g., NY J88195, dated September 17, 2003; Headquarters Ruling Letter (“HQ”) 085902, dated February 12, 1990.
Under the facts presented, “Pernod Absinthe Superieure,” which contains no sugar content, and “Ricard Pastis de Marseille,” which contains under one percent sugar content, do not meet the requisite sugar content to be classified as a liqueur or cordial because they both contain under 2.5 percent sugar content. Therefore, under GRI 1, “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” do not meet the terms of the subheading for liqueurs and cordials.”
Since “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” do not fall under any of the provisions in subheadings 2208.20-2208.70, HTSUS, these products are classified under the basket provision provided in 2208.90, HTSUS. This comports with the guidance provided in EN 22.08 which covers, eo nomine, absinth under heading 2208, HTSUS, as alcoholic aperitives. Accordingly, we find that “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” are classified in subheading 2208.90.7500, HTSUSA, which provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages: Other: Other: Spirits: Other.”
HOLDING:
Under the authority of GRI 1, “Pernod Absinthe Superieure” and “Ricard Pastis de Marseille” are classified under heading 2208, HTSUS, and specifically in subheading 2208.90.7500, HTSUSA, which provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages: Other: Other: Spirits: Other.” The 2019 column one, general rate of duty is free.
EFFECT ON OTHER RULINGS:
NY N304274, dated June 7, 2019, is REVOKED.
NY N304276, dated June 7, 2019, is REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division