CLA-2-CO:R:C:F 953125 K

TARIFF No.: 2206.00.9000/9903.23.25

Harvey A. Isaacs, Esq.
Tompkins & Davidson
Counselors at Law
One Astor Plaza
1515 Broadway
New York, New York 10036

RE: Request For Reconsideration Of Headquarters Ruling Letter (HRL) 952728; "Golden Fizz Mimosa" Drink

Dear Sir:

The following is in response to your submissions of December 17, 1992, and February 18, 1993, in which you requested that we reverse our holding in HRL 952728, dated November 27, 1992. A meeting was held at Headquarters on February 16, 1993.

FACTS:

One of the labels on the sample submitted of Golden Fizz Mimosa, which was the subject of HRL 952728, indicates that the sample is a product of Germany and consists of a 750ml bottle of white wine, orange juice, natural flavor, and carbon dioxide which contains sulfites. The alcoholic content on the label indicates a 6.0 percent by volume. The label states that the "Mimosa Cocktail is the most popular Sparkling drink in the world and is prepared by people who enjoy a light fruity, low alcohol beverage. Excellent for brunch, lunch, parties." The labels depict oranges and the color of the liquid is orange. The specific amounts of the ingredients such as orange juice were not given.

In HRL 952728, we held that the merchandise as described above was classifiable as other fermented beverages, other, subheading 2206.00.90, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the rate of 6.6 cents per liter. However, under subheading 9903.23.25, HTSUS, other fermented

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alcoholic beverages, containing less than 7 percent alcohol by volume, that are provided for in subheading 2206.00.90, HTSUS, and are articles of the European Community, which includes the Republic of Germany, are dutiable at 100 percent ad valorem in lieu of the rate provided for under subheading 2206.00.90, HTSUS.

In response to a request by the Embassy of the Federal Republic of Germany for reconsideration of our position, we affirmed the holding in HRL 952728 in a letter dated December 30, 1992. We are now asked by counsel for the importer to reconsider our position. Counsel suggests classification in subheadings 2205.90.60, 2208.90.80, or 2106.90.60, HTSUS, which are not subject to the 100 percent ad valorem rate of duty provided for by subheading 9903.23.25, HTSUS.

ISSUE:

The issue is whether the Customs position as stated in HRL 952728 properly classifies the drink, as described, in subheading 2206.00.9000, HTSUS, subject to the 100 percent ad valorem rate of duty provided for by subheading 9903.23.25, HTSUS.

LAW AND ANALYSIS:

Heading 2205, HTSUS, provides for: "Vermouth and other wine of fresh grapes flavored with plants or aromatic substances." The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), a guideline for use in determining classification under HTSUS, states that heading 2205 "includes a variety of beverages (generally used as aperitives or tonics) made with wine of fresh grapes of heading 2204, and flavored with infusions of plant substances (leaves, roots, fruits, etc.) or aromatic substances." There is no mention of fruit juice and we would not consider a fruit juice to be plant substances such as leaves, roots, fruits, etc., or as an aromatic substance. Also, wine coolers and sangria are not "generally used as aperitives or tonics." The EN for heading 2204 states that that heading does not cover "beverages with a basis of wine of heading 2205." Further, the EN for heading 2208 states that that heading does not include "Vermouths and other aperitives with a basis of wine of fresh grapes (heading 2205). We have not considered the addition of a fruit juice to a wine to be a product which is classifiable under heading 2205.

Heading 2208, HTSUS, provides for three types of products: 1. "Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.;", 2. "spirits, liqueurs and other spirituous beverages;", and 3. "compound alcoholic preparations of a kind used for the manufacture of beverages." The merchandise described is not an undenatured alcohol or a compound alcoholic preparation used in the manufacture of beverages. In

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describing the second type of products classified in heading 2208, the EN states that the "heading covers, whatever their alcoholic strength: (A) Spirits produced by distilling wine, cider or other fermented beverages...(B) Spirits, liqueurs and cordials...(C) All other spirituous beverages not falling in any preceding heading of this chapter." The merchandise described is a mixture of a fermented wine and orange juice and not a spirit produced by distilling a fermented beverage. It is not a spirit, liqueur or cordial, and since fermented products fall in headings 2203, 2204, 2205, and 2206, it cannot be considered "an other Spirituous beverage."

Heading 2208, HTSUS, would cover a rum or vodka, etc. with added fruit juice. Spirits are produced by distilling fermented products. Fermented products are specifically provided for in Chapter 22. It is also for this reason that consideration of classification in subheading 2106.90.60, HTSUS, the provision for other food preparations not elsewhere specified or included is without merit. Beverages are provided for in Chapter 22, and fermented beverages are specifically provided for in headings 2203, 2204, 2205, and 2206, HTSUS.

Heading 2206, HTSUS provides for other fermented beverages (for example, cider, perry, mead); mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere specified or included. Since the instant product consists of a mixture of white wine and orange juice it is prima facie covered by the language of heading 2206.

The current text of heading 2206 is the result of an amendment to the legal text which was approved by the Harmonized System Committee (HSC) of the Customs Cooperation Council in 1989. See Report of the Third Session of the HSC (Document 35.350 at Annex F/20. This amendment became effective in the United States by virtue of Presidential Proclamation 6515, dated December 16, 1992. In its decision approving the amendment, the Committee decided that such an amendment would maintain the status quo by providing for such products as a mixture of lemonade and beer or wine in heading 2206. Accordingly, it is clear that the text of heading 2206 was amended expressly to capture products such as the merchandise at issue here.

Subheading 9903.23.25, HTSUS, was the result of Presidential Proclamation 5759 dated December 24, 1987, effective January 1, 1989. At the time of the Proclamation, other fermented beverages were classified under item 167.50, Tariff Schedules of the United States. The main product classified under this item with less than 7 percent alcohol by volume was a wine cooler. Wine coolers are mixtures of wine, fruit juice and water. In our opinion, the 100 percent rate of duty was intended to cover products such as the instant merchandise, a mixture of wine and orange juice which is similar to a wine cooler.

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HOLDING: Other fermented alcoholic beverages, containing less than 7 percent alcohol by volume that is provided for in subheading 2206.00.90, and are products of the European Community are classifiable under subheading 9903.23.25, HTSUS, with a 100 percent ad valorem rate of duty in lieu of the rate of duty provided for under subheading 2206.00.90, HTSUS. The statutory language of subheading 9903.23.25, HTSUS contains no exceptions.

Accordingly, Headquarters Ruling Letter 952728, dated November 27, 1992, is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division