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HQ 231492

August 14, 2006

LIQ-8 RR:CTF:ER 231492 GC

Port Director of Customs
U.S. Customs and Border Protection
1 La Puntilla Street, Room 214
San Juan, Puerto Rico 00901
Attn: Protest Section

Dear Port Director:

This letter is in response to your correspondence dated June 15, 2006 concerning Able Sales Company Inc. (protest 4909-06-100028), which we received on June 27, 2006. The protest was against the liquidation of four entries covering the importation of grape concentrate. The entries were liquidated on February 3, 2006.


The protest, filed on May 10, 2006, was timely, having been filed within 180 days of the liquidation date.

Able Sales Company Inc. (Able Sales) filed entry of Concord Grape Concentrate on October 24, 2006 under Harmonized Tariff Schedule of the United States (HTSUS) subheading 2009.61.00, which covers concentrates of a brix value less than 30°. Because the entry invoice for the merchandise declared the grape concentrate to have a brix value of 68°, Customs and Border Protection (CBP) liquidated the merchandise on February 3, 2006 under HTSUS subheading 2009.69.00, which covers concentrates with brix values exceeding 30°.

The different subheadings apply the exact same duty to the merchandise, which is 4.4 cents per liter. However, the calculation of the final duty requires the degree of concentration used to obtain the reconstituted liters of the grape juice. See, Additional U.S. Note 1-3, Chapter 20 HTSUS; 19 U.S.C. §1202. And different varieties of grapes correspond with different degrees of concentration. Able Sales claims that the grapes used to produce the merchandise should be identified as a Vitis Vinifera variety of grape, which, when processed into a concentrate with a brix value of 68°, corresponds with a degree of concentration of 4.0. CBP used a degree of concentration of 5.5, which corresponds to grape juice with a brix value of 68° processed from the Vitis Lambrusca slipskin variety of grape. Consequently, while the duty rate is a constant 4.4 cents per liter, the number of dutiable liters is more for grape juice concentrate processed from slipskin variety grapes than from Vitis Vinifera variety grapes.

As evidence that the grapes are of the Vitis Vinifera variety, Able Sales references a prior protest (Protest 4909-05-300003) that was approved by the port on the same facts. In that protest, the manufacturer, Tecnovin do Brasil LTDA, certified that the Concord Grape Concentrate at issue is processed from a Vitis Lambrusca variety that is similar to Vitis Vinifera, and that slipskin varieties of grape are not used in the manufacturing process at all, as that type of grape is not available in the region. Based solely on this information, the protest was approved on September 20, 2005. However, in this particular case, the CBP import specialist solicited the advice of the National Import Specialist (NIS). In QUICS Message 13121 dated March 21, 2006, the NIS stated that Concord grapes do not belong to the Vitis Vinifera variety and that they are indeed slipskin. In making this determination, the NIS was aware of the results of the previous protest and also consulted with Dr. Terry Bates, a Viticulture expert at Cornell University. Consequently, the degree of concentration used by CBP to calculate the final duty rate at liquidation was 5.5.

Able Sales filed its protest, citing the prior decision of the port to approve Protest 4909-05-300003, which was based on identical facts discussed here.


Whether, by adhering to the National Import Specialist’s identification of the grapes used to process the concentrate as Vitis Lambrusca slipskin variety, CBP correctly calculated the dutiable quantity of Concord Grape Concentrate?


Essentially, the protestant charges that a mistake of fact has been made regarding the variety of grape used to process the concentrate at issue here. That mistake of fact, according to Able Sales, resulted in CBP calculating the duty at an erroneously high rate. As evidence of this mistake, Able Sales mentions only that the port has approved a previous protest on the same facts. The result of a previous protest, however, does not bind CBP with respect to future determinations. See, Degussa Canada LTD. v. U.S., 87 F.3d 1301, 1304 (Fed. Cir. 1996) (Holding that a port’s failure to know of a concurrent protest on the classification of the same merchandise in another port, and subsequent failure to defer to that other port’s classification decision, does not constitute a mistake of fact); and Alyeska Pipeline Service Co. v. U.S., 643 F.Supp. 1128, 1132-1133 (CIT 1986) (noting that CBP must assess each entry on a case by case basis). Thus, in this case, Able Sales’ reliance on its success in a previous protest does not control the issue of how the duty for the Concord Grape Concentrate should be calculated.

Moreover, the identification of the grape made by the NIS in this case takes into account the previous decision cited by Able Sales and also incorporates additional data that supports the conclusion that the grapes used in the processing of the Concord Grape Concentrate are indeed of slipskin variety. Through consultations with Dr. Terry Bates, a Viticulture Research Associate at the Cornell University Vineyard Laboratory, the NIS was provided with an academic article prepared at the University of Cornell as well as information from the Concord Grape Association website. This data supports the conclusion that CBP properly calculated the rate of duty for the Concord Grape Concentrate by using the degree of concentration corresponding to slipskin variety grapes.

Aside from citing Protest 4909-05-300003, Able Sales does not offer any information that leads to the conclusion that the grapes used to process the Concord Grape Concentrate were of the Vitis Vinifera variety. Even in Protest 4909-05-300003, the information provided by Able Sales does not indicate that the grapes at issue here are of the Vitis Vinifera variety. The manufacturer merely asserted that the grapes were not slipskin and were similar to Vitis Vinifera. Given the disparity of evidence between the position of CBP and that of Able Sales, it is clear that the grape used to process the Concord Grape Concentrate is of the Vitis Lambrusca slipskin variety.


The protest should be denied. The weight of the evidence supports the conclusion that Concord Grapes are of the Vitis Lambrusca slipskin variety. CBP was correct to calculate the dutiable liters according to that identification. The protestant has not shown with documentary evidence, nor is it manifest from the record that the grapes at issue here belong to the Vitis Vinifera variety.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other method of public distribution.


Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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