H294502

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H294502 November 29, 2021 OT:RR:CTF:FTM H294502 JER CATEGORY: Classification TARIFF NO.: 2206.00.90 Chris Tiwari Overton & Company Air Services, Inc. 2016 Linden Boulevard Elmont, NY 11003 Re: Affirmation of NY N291905; classification of malt beverage base Dear Mr. Tiwari: On December 7, 2017, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) N291905 to you, pertaining to the tariff classification of two types of bulk malt beverage base products under the Harmonized Tariff Schedule of the United States (“HTSUS”). On behalf of your client, MHW Limited (hereinafter referred to as “MHW”), you request reconsideration of CBP’s decision in NY N291905 and seek classification of the imported products in heading 2203, HTSUS, as beer. For the reasons set forth below, we find that the classification of the malt beverage base products in heading 2206, HTSUS, is correct. FACTS: In NY N291905, the products were described as follows: The subject merchandise is described as two types of Bulk Malt Beverage products to be used as an ingredient to make ready-to-drink (RTD) malt beverage based products. Malt Beverage 1 (Item # BNMB22) is said to contain 52.8 percent brewing water, 45 percent dextrose syrup (wheat derived), 2 percent malted barley and less than 1 percent hops and yeast. Malt Beverage 2 (Item # BGFNMB22) is said to contain 52.8 percent brewing water, 45 percent gluten free malted grain, 2 percent glucose syrup (maize-derived), and less than 1 percent hops and yeast. Both Malt Beverages are said to have an alcoholic strength by volume of 21.9 percent. The products will be imported into the United States in flexitanks bottles of 20,000 liters. In your response to further inquiry concerning the initial binding ruling request, you state the following: These products will not be marketed or sold in their current form. These malt beverage products are to be used as an ingredient to make ready-to-drink (RTD) malt beverage based products. Additional flavors are added in the [post-importation] process. The final products [post-importation] will be marketed and sold as malt beverage based ready-to-drink (RTD) products that will contain additional flavors. The final alcohol content will be approximately 5% abv. In your reconsideration request, you describe the brewing process of the imported malt beverage based products. According to your submission, mash is created from malted barley, glucose syrup, potable water and hops. The substance is then cooled to 32°C, where yeast is added [to the wort],  which begins the next stage of the process, fermentation, followed by clarification and filtration. The final process stage is quality check. We note that the post-importation production is unknown with the exception of the addition of additional flavors and the reduction of alcohol content from 21.9% abv to 5% abv. ISSUE: Whether the instant malt beverage base products are classified under heading 2203, HTSUS, as beer made from malt, or under heading 2206, HTSUS, as other fermented beverages? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied. The HTSUS provisions under consideration are as follows: 2203 Beer made from malt 2206 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: * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to heading 2203, HTSUS, provides in pertinent part as follows: Beer is an alcoholic beverage obtained by fermenting a liquor (wort) prepared from malted cereals (most commonly barley or wheat), water and (usually) hops. Certain quantities of non-malted cereals (e.g., maize (corn) or rice) may also be used for the preparation of the liquor (wort). The addition of hops imparts a bitter and aromatic flavour and improves the keeping qualities. Cherries or other flavouring substances are sometimes added during fermentation. Sugar (particularly glucose), colouring matter, carbon dioxide and other substances may also be added. According to the fermenting process employed, the products may be bottom fermentation beer, obtained at a low temperature with bottom yeasts, or top fermentation beer, obtained at a higher temperature with top yeasts. Beer may be pale or dark, sweet or bitter, mild or strong. It may be put up in barrels, bottles or in airtight tins and may be marketed as ale, stout, etc. The EN to heading 2206, HTSUS, provides in relevant part as follows: This heading covers all fermented beverages other than those in headings 22.03 to 22.05. . . . All these beverages may be either naturally sparkling or artificially charged with carbon dioxide. They remain classified in the heading when fortified with added alcohol or when the alcohol content has been increased by further fermentation, provided that they retain the character of products falling in the heading. * * * MHW contends that the subject malt beverage base products satisfy the definition of “beer,” set forth in the regulations of the Alcohol and Tobacco Tax and Trade Bureau of the U.S. Department of the Treasury (“TTB”). Section 25.11 of TTB Regulations (27 C.F.R. §25.11) defines beer as “beer, ale, porter, stout, and other similar fermented beverages (including sake or similar products) of any name or description containing one-half of 1 percent or more of alcohol by volume.” MHW states that the Base Number 1 product is made from malted barley and hops and has an ABV greater than one-half of 1 percent and that Base Number 2 is made from gluten-free malted grains, hops and has an ABV greater than one-half of 1 percent. MHW therefore concludes that the subject products are beer according to the TTB Regulations. Lastly, MHW argues that because the subject malt beverage base products do not contain wine, they should not be classified in heading 2206, HTSUS. Initially we note that the TTB regulations referenced by MHW pertain to the collection of federal excise taxes on alcoholic products and are not intended as guidance for the classification of imported merchandise under the HTSUS. Statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of CBP classification disputes. See Amersham Corp. v. United States, 5 C.I.T. 49, 56, 564 F.Supp. 813, 817 (1983). Thus, the above-referenced TTB standards and definitions are not binding on CBP. However, to the extent that regulations or definitions of other federal agencies may be instructive in a tariff classification decision, we note that TTB regulations refer to both “beer” and “malt beverages” separately. In this regard, 27 U.S.C. §211(a)(7) and 27 C.F.R. §7.10, define “malt beverage” as “a beverage made by the alcoholic fermentation of an infusion or decoction, or combination of both, in potable brewing water, of malted barley with hops, or their parts, or their products, and with or without other malted cereals, and with or without the addition of unmalted or prepared cereals…” The fact that TTB 

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI’s). 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 may then be applied. The HTSUS provisions under consideration are as follows:2203 Beer made from malt 2206 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: * * *The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to heading 2203, HTSUS, provides in pertinent part as follows:Beer is an alcoholic beverage obtained by fermenting a liquor (wort) prepared from malted cereals (most commonly barley or wheat), water and (usually) hops. Certain quantities of non-malted cereals (e.g., maize (corn) or rice) may also be used for the preparation of the liquor (wort). The addition of hops imparts a bitter and aromatic flavour and improves the keeping qualities. Cherries or other flavouring substances are sometimes added during fermentation.Sugar (particularly glucose), colouring matter, carbon dioxide and other substances may also be added.According to the fermenting process employed, the products may be bottom fermentation beer, obtained at a low temperature with bottom yeasts, or top fermentation beer, obt