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HQ 965480

July 31, 2002

CLA-2 RR:CR:GC 965480 HEF


TARIFF NO.: 2206.00.15

Port Director
U.S. Customs Service
9901 Pacific Highway
Blaine, Washington 98230

RE: Protest 3004-01-100090; cider

Dear Port Director:

This is our decision on Protest 3004-01-100090, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of four types of cider. The entries were liquidated on September 14, 2001, and this protest timely filed on November 27, 2001. In preparing this ruling, consideration was given to several submissions made by counsel for the protestant as well as arguments presented in a teleconference held on July 30, 2002.


The subject merchandise, “Wyder’s Pear Cider,” “Wyder’s Peach Cider,” “Wyder’s Raspberry Cider,” and “Wyder’s Dry Raspberry Cider,” is described by the protestant as “hard cider” derived primarily from apples and containing other fruit flavors. Protestant indicates that 100 percent of the fermented product is derived from apples or apple concentrate and water. In the post-fermentation process and before importation, essences containing both organic and artificial fruit flavors (pear, peach, and raspberry) are added to the respective ciders. The products were entered from October 20, 1998 through July 9, 2001.

You classified the subject merchandise under subheading 2206.00.15, HTSUS, which provides for cider, whether still or sparkling. Protestant does not dispute the subject articles’ classification under subheading 2206.00.15, HTSUS. Protestant claims that the Federal Excise Tax rate assessed under the Taxpayers Relief Act of 1997, 26 U.S.C. § 5041 (2000), is incorrect.


What is the tariff classification for the subject merchandise?

2. Whether the subject merchandise should be assessed as a “hard cider” at the tax rate of 22.6 cents per wine gallon under 26 U.S.C. § 5041.



Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provision under consideration is as follows:

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:

2206.00.15 Cider, whether still or sparkling

Since the instant product consists of a mixture of fermented apple juice or apple concentrate and water, with the addition of essences (pear, peach, and raspberry), it is eo nomine covered by the language of heading 2206, HTSUS. The current text of heading 2206, HTSUS, is the result of an amendment to the legal text which was approved by the Harmonized System Committee (HSC) of the Customs Cooperation Council, now known as the World Customs Organization, 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, HTSUS. Accordingly, it is clear that the text of heading 2206, HTSUS, was amended expressly to capture products such as the merchandise at issue here.

Cider is described under EN 22.06 (1) as “an alcoholic beverage obtained by fermenting the juice of apples.” Subheading 2206.00.15 is an eo nomine classification provision for cider. An eo nomine provision is one that describes a commodity by a specific name, as opposed to use. The name is usually one common in commerce. Absent limiting language or indicia of contrary legislative intent, such a provision covers all forms of the article. See National Advanced Sys. v. United States, 26 F.3d 1107, 1111 (Fed. Cir. 1994). The subject merchandise are ciders, but include essences of organic and artificial extracts (pear, peach, and raspberry). Commercially, ciders with fruit flavors or essences are marketed as ciders. No limiting language regarding the addition of essences to cider is present in the HTSUS. Thus, for tariff classification purposes the subject merchandise is classified under subheading 2206.00.15, HTSUS.


Pursuant to this classification, the Federal Excise Tax provisions under consideration are as follows:

26 U.S.C. § 5041 (b) Rates of tax –

(1) On still wines containing not more than 14 percent of alcohol by volume, $1.07 per wine gallon;

(6) On hard cider which is a still wine derived primarily from apples or apple concentrate and water, containing no other fruit product, and containing at least one-half of 1 percent and less than 7 percent alcohol by volume, 22.6 cents per wine gallon.

In temporary regulations, effective for cider on October 20, 1998, the Bureau of Alcohol, Tobacco, and Firearms (BATF) clarified which beverages could be considered “hard cider” for purposes of the new tax rate under 26 U.S.C. § 5041(b)(6). “Hard cider” is defined as “wine derived primarily from apples or apple concentrate and water (apple juice, or the equivalent amount of concentrate reconstituted to the original brix of the juice prior to concentration, must represent more than 50 percent of the volume of the finished product); containing no other fruit product nor any artificial product which imparts a fruit flavor other than apple; containing at least one-half of 1 percent and less than 7 percent alcohol by volume; having the taste, aroma, and characteristics generally attributed to hard cider, and sold or offered for sale as hard cider and not as a substitute for any other alcohol product.” Prop. Treas. Reg. § T.D. ATF-398, 63 Fed. Reg. 44779, 44781-82 (Aug. 21, 1998). Therefore, hard cider can have other ingredients added to it, but it may not contain other fruit products or flavors other than apple, for this statutory purpose. The subject merchandise is cider with essences, which include organic and artificial extracts (pear, peach and raspberry). These ciders clearly do not meet the standard for “hard cider” outlined in the BATF’s temporary regulations in effect at the dates of liquidation because of the addition of pear, peach, and raspberry flavors.

Furthermore, the BATF’s final ruling on the temporary regulations issued to implement the provisions of 26 U.S.C. § 5041 uphold the position taken in the temporary regulations and exclude ciders containing fruit flavors or fruit products other than apple from the lower tax rate. The BATF explains its exclusion of fruit flavored ciders from the lower tax rate: “As noted earlier, we believe the wording of the statute does not allow for any other interpretation.” T.D. ATF-470, 66 Fed. Reg. 58938, 58943 (November 26, 2001).


The subject merchandise is classified under subheading 2206.00.15, HTSUS, for tariff purposes. In accordance with 26 U.S.C. § 5041 and BATF regulations, the subject merchandise should be assessed the tax for still wine under 26 U.S.C. § 5041 (b)(1). The statutory language of 26 U.S.C. § 5041 contains no exceptions.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Acting Director

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