HQ H263909
CLA-2 OT:RR:CTF:FTM HQ H263909 TSM
Port Director,
JFK International Airport
Building #77
Jamaica, New York 11430
Attn: Scott J. Nielsen/Chief, Trade Operations Branch D
Re: Protest and Application for Further Review No. 4701-14-100112; Classification of “Underberg” Non-Beverage Bitters.
Dear Port Director:
The following is our decision regarding Protest and Application for Further Review No. 4701-14-100112, timely filed on March 3, 2014, on behalf of Duggan’s Distillers Products Corp. (hereinafter “Protestant”) regarding the tariff classification of “Underberg” non-beverage bitters under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
“Underberg” non-beverage bitters are described as natural herb bitters consisting of the following ingredients: water, alcohol (44% by volume), natural flavors from herbs and roots of the genus gentian. Bitters are widely known in central European countries and consumed as a digestive, chiefly after a heavy meal. “Underberg” bitters are also used to condiment various bitter-flavored cocktails.
The subject merchandise was entered on November 13, 2012, under subheading 2106.90.99, HTSUS, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” The subject merchandise was liquidated on September 27, 2013 under subheading 2106.90.99, HTSUS, as entered. Protestant claims that the subject merchandise should be classified under subheading 2208.90.05, 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: Bitters: Not fit for use as beverages.”
ISSUE:
Whether bitters not fit for use as beverages are classified under heading 2106, HTSUS, as “Food preparations not elsewhere specified or included,” or under heading 2208, HTSUS, as “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages.”
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)).
Further Review of Protest No. 4701-14-100112 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with another port’s decisions with respect to the same or substantially similar merchandise.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 22.08, provides, in pertinent part, the following:
The heading 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.
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.
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:
* * *
(13) Alcoholic aperitives (absinth, bitters, etc.) other than those with a basis of wine of fresh grapes which fall in heading 22.05.
* * *
The HTSUS provisions under consideration are as follows:
2106 Food preparations not elsewhere specified or included:
2106.90 Other:
Other:
Other:
Other:
Other:
2106.90.98 Other
* * *
2208 Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages:
2208.90 Other:
* * *
Bitters:
2208.90.05 Not fit for use as beverages
* * *
Protestant argues that “Underberg” bitters should be classified in heading 2208, HTSUS, and specifically in subheading 2208.90.05, HTSUS. Protestant states that there is no issue that “Underberg” bitters constitute natural herb bitters, consisting of the following ingredients: water, alcohol (44% by volume), natural flavors from herbs and roots of the genus gentiana.
Heading 2208, HTSUS, provides for, in addition to undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol., spirits, liqueurs and other spirituous beverages. In addition, in describing the types of products covered by heading 2208, HTSUS, the ENs specifically reference, among other products, bitters. Moreover, subheading 2208.90.05, HTSUS, specifically provides for bitters not fit for use as beverages. Therefore, we find that bitters not fit for use as beverages are provided for eo nomine in heading 2208, HTSUS, and specifically in subheading 2208.90.05, HTSUS.
Heading 2106, HTSUS, is a basket provision covering food preparations not elsewhere specified or included. Since we have determined that bitters not fit for use as beverages are classified in heading 2208, HTSUS, heading 2106, HTSUS, cannot be considered.
Based on the foregoing, we conclude that the subject “Underberg” non-beverage bitters are classified in subheading 2208.90.05, 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: Bitters: Not fit for use as beverages.”
HOLDING:
By application of GRIs 1 and 6, the subject “Underberg” non-beverage bitters are classified in subheading 2208.90.05, 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: Bitters: Not fit for use as beverages.” The 2017 column one general rate of duty is Free.
You are instructed to ALLOW the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division