CLA-2 CO:R:C:G 086612 RFC
TARIFF NOS.: 2208.40; 2208.90
Ms. Fabienne Jolly
Albert Uster Imports, Inc.
9211 Gaither Road
Gaithersburg, MD 20877
RE: Alcoholic distillates
Dear Ms. Jolly:
This ruling letter is in response to your request of August
7, 1989, on behalf of Marmot Kellerei AG, Wollerau, Switzerland,
concerning classification under the Harmonized Tariff Schedule of
the United States Annotated (HTSUSA) of certain alcoholic
distillates used in the preparation of certain food-related
items. The distillates are imported from Switzerland and samples
were submitted for examination.
FACTS:
There are four separate items for which classification is
sought. Each item is a drinkable, colorless, aqueous liquid
having an alcoholic strength of less than 80 percent but greater
than 50 percent by volume, and is said to be produced by
distilling the fermented mash of a vegetable product. Each of
the items is said to be used as a preparation in such food-
related items as cakes, batters, soaking sponges, souffles, candy
fillings, mousses and frostings.
The vegetable products that comprise the fermented mash of
each of the four items are discussed below:
RUM. The item labeled "rum" is said to be produced by
distilling the fermented mash of sugar cane.
WILLIAMS PEAR BRANDY. The item labeled "Williams pear
brandy" is said to be produced by distilling the fermented
mash of pears.
KIRSCH. The item labeled "kirsch" is said to be produced by
distilling the fermented mash of cherries.
FRAMBOISE. The item labeled "framboise" is said to be
produced by distilling the fermented mash of raspberries.
ISSUE:
Whether drinkable liquids containing in excess of 0.05% of
alcohol by volume and produced by distilling the fermented mash
of vegetable products should be classified as "spirits" or as
"food preparations" under the HTSUSA.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 states, in
part, that "for legal purposes, classification shall be
determined according to the terms of the headings and any
relative section or chapter notes...."
Heading 2208 of the HTSUSA provides for, among other things,
undenatured ethyl alcohol of an alcoholic strength by volume of
less than 80 percent by volume and spirits. The Explanatory
Notes to Heading 2208 state, in part, that Heading 2208 "covers,
whatever their alcoholic strength...spirits produced by
distilling...fermented beverages or fermented grain or other
vegetable products...without adding flavouring" and, "[p]rovided
that their alcoholic strength by volume is less than
80...[percent by volume]...undenatured spirits (ethyl
alcohol...) which...are characterised by the absence of secondary
constituents giving a flavour or aroma."
"Spirits," as discussed in the above-mentioned Explanatory
Notes, is "the liquid containing ethyl alcohol and water that is
distilled from an alcoholic liquid or mash." See Webster's Ninth
New Collegiate Dictionary 1137 (1989). Moreover, the general
notes to the Explanatory Notes to Heading 2207 state, in part,
that "[e]thyl alcohol is the alcohol which occurs in...alcoholic
beverages...[and]...is obtained either by fermentation of certain
kinds of sugar by means of yeast or other ferments and subsequent
distillation...[whereas]...ethyl alcohol and other spirits,
denatured, are spirits mixed with substances to render them unfit
for drinking but not to prevent their use for industrial
purposes."
RUM. Subheading 2208.40.00 provides for rum--which is an
alcoholic beverage distilled from a fermented cane product. Id.,
at 1030. Moreover, note (3) to the Explanatory Notes to Heading
2208 states, in part, that "[Heading 2208 includes] [s]pirits
obtained by distilling fermented sugar-cane molasses or sugar-
cane juice (rum...)...." In the instant case, the item labeled
"rum" consists of a drinkable liquid having an alcoholic strength
of less than 80 percent but greater than 50 percent by volume.
The item is stated to be produced by distilling the fermented
mash of sugar cane. Therefore, this item clearly falls within
the provisions of subheading 2208.40.00, and should be
classified under that subheading.
WILLIIAMS PEAR BRANDY. Subheading 2208.90.1200 through
2208.90.4000 provides for brandy--which is an alcoholic beverage
distilled from wine or fermented fruit juice. Id., at 175.
Moreover, note (5) to the Explanatory Notes to Heading 2208
states, in part, that "[Heading 2208 includes] [s]pirits obtained
from...fruits." In the instant case, the item labeled "Williams
pear brandy" consists of a drinkable liquid having an alcoholic
strength of less than 80 percent but greater than 50 percent by
volume. The item is stated to be produced by distilling the
fermented mash of pears (which are a type of fruit). Therefore,
this item clearly falls within the provisions of subheading
2208.90, and should be classified under that subheading.
KIRSCH. Subheading 2208.90.45 provides for kirsch-
wasser--which is also known as "kirsch," for short, and is a dry
colorless brandy distilled from the fermented juice of the black
morello cherry. Id., at 663. Moreover, note 5 to the Explanatory
Notes to Heading 2208 states, in part, that "[Heading 2208
includes] [s]pirits obtained from cherries (kirsch)...." In the
instant case, the item labeled "kirsch" consists of a drinkable
liquid having an alcoholic strength of less than 80 percent but
greater than 50 percent by volume. This item is stated to be
obtained by distilling the fermented mash of cherries.
Therefore, this item clearly falls within the provisions of
subheading 2208.90.45, and should be classified under that
subheading.
FRAMBOISE. Subheading 2208.90.1200 through 2208.90.4000
provides for brandy--which, as discussed above, is an alcoholic
beverage distilled from wine or fermented fruit juice. Id., at
663. Framboise, in turn, is merely a raspberry brandy. See The
Random House Dictionary of the English Language 563 (1983).
Moreover, note (5) to the Explanatory Notes to Heading 2208
states, in part, that "[Heading 2208 includes] [s]pirits obtained
from...fruits." In the instant case, the item labeled
"framboise" consists of a drinkable liquid having an alcoholic
strength of less than 80 percent but greater than 50 percent by
volume. This item is stated to be obtained by distilling the
fermented mash of raspberries (which are a type of fruit).
Therefore, this item clearly falls within the provisions of
subheading 2208.90, and should be classified under that
subheading.
The composition of the above-described goods (i.e.,
drinkable alcoholic liquids produced by distilling fermented
vegetable products) and the level of alcohol in the liquids
(i.e., exceeding 0.5% by volume) precludes the goods from being
classified under a heading in the HTSUSA other than that which
provides for spirits (e.g., the goods cannot be classified under
a heading providing food preparations). See Explanatory Note
22.08; Explanatory Note 22.07; Chapter Note 13 (d); Explanatory
Note 21.06 (7).
HOLDING:
The above-described items are classified under the following
subheadings of the HTSUSA:
SUBHEADINGS ARTICLE DESCRIPTION RATES OF DUTY
Framboise and Williams Pear Brandy
In containers each holding not over 4 liters:
2208.90.2000 valued not over $2.38/liter 89.8 cents/pf.
liter
2208.90.2500 valued over $2.38 but not 33 cents/pf.
over $3.43/liter liter
2208.90.3000 valued over $3.43/liter 13.2 cents/pf.
liter
In containers each holding over 4 liters:
2208.90.3500 valued not over $2.38/liter 13.2 cents/pf.
liter
2208.90.4000 valued over $2.38/liter 10.6 cents/pf.
liter
Rum
In containers each holding not over 4 liters:
2208.40.0030 no specified value 37 cents/pf.
liter
In containers each holding over 4 liters:
2208.40.0060 valued not over 53 cents 37 cents/pf.
per liter liter
2208.40.0070 valued over 53 cents but 37 cents/pf.
not over 92 cents per liter liter
Kirsch
In containers each holding not over 4 liters:
2208.90.4530 no specified value 13.2 cents/pf.
liter
In containers each holding over 4 liters:
2208.90.4560 no specified value 13.2 cents/pf.
liter
Please be advised that, in accordance with Additional U.S.
Notes, as set forth in Chapter 22 of the HTSUSA, where in Heading
2208, the rates shown in the rates of duty columns are in terms
of a proof liter, proof liter shall mean a liter of liquid at
15.56 degrees Celsius (60 degrees Fahrenheit) which contains 50
percent (100 proof) by volume of ethyl alcohol having a specific
gravity of 0.7939 at 15.56 degrees Celsius (60 degrees
Fahrenheit) referred to water at 15.56 degrees Celsius (60
degrees Fahrenheit) as unity or the alcoholic equivalent thereof.
Also, please be advised that imports under subheading 2208
may be subject to (1) an excise tax under the Internal Revenue
Code and (2) labeling requirements under the Federal Alcohol
Administration Act. Both laws are administered by the Bureau of
Alcohol, Tobacco & Firearms (ATF). For further information,
please get in touch with the ATF, Product Compliance Branch, 1200
Pennsylvania Ave., N.W., Room 6207, Washington, D.C. 20026. The
telephone number is 202-789-3152.
Sincerely,
John Durant, Director
Commercial Rulings Division