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