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HQ 963748




November 20, 2000

CLA-2 RR:CR:GL 963748 NL

CATEGORY: CLASSIFICATION

TARIFF NO.: 1701.11.5000

Port Director
U.S. Customs Service
One East Bay Street
Savannah, GA 31401

RE: Protest 1703-99-100202; polarity degrees for raw sugars

Dear Port Director:

This is our decision on protest 1703-99-100202 timely filed on September 13, 1999, by Savannah Foods Industrial, Inc., against your decision regarding Customs laboratory results concerning the polarity degrees for raw sugar. The entry, dated May 6, 1999, was liquidated on July 2, 1999.

FACTS:

The merchandise consists of raw sugar from Mexico, classified in subheading 1701.11.5000, Harmonized Tariff Schedule of the United States (HTSUS), with 99.268 degrees of polarity reported by the Customs laboratory. See Laboratory Report #4-1999-50360-015, dated 6/3/99. The importer’s claimed classification is subheading 1701.11.5000, HTSUS, with 98.678113 degrees of polarity as reported by an independent laboratory. There is a variation of 0.59 in the degree of polarity.

Customs national quality procedures state that a Customs laboratory will re-analyze samples called into question in a protest. The Customs laboratory reviewed the data and calculations but did not retest the samples, because they were disposed of and were no longer available for testing. The importer was offered a re-analysis if bona fide samples were provided to the Customs laboratory. However, no samples from the protested entry are available for new testing.

ISSUE:

Whether the raw sugar has a polarity of 99.268 degrees.

LAW AND ANALYSIS:

There is no dispute that the HTSUS subheading for this entry is 1701.11.5000, which provides for: Cane or beet sugar and chemically pure sucrose, in solid form: Raw sugar not containing added flavoring or coloring matter: Cane sugar: Other. Articles classifiable under subheading 1701.11.5000, HTSUS, which are products of Mexico are entitled to a Special Rate of Duty: 28.247¢/kg less 0.4¢/kg for each degree under 100 degrees (and fractions of a degree in proportion) but not less than 18.256¢/kg (MX). It is here that the protested degree of polarity effects the duty of the merchandise. Chapter 17, Subheading Note 1 and Additional U.S. Notes 1 and 5(c), HTSUS, are also applicable to the protested entry.

Since the degree of polarity effects the duties assessed, Savannah Foods may protest the procedures under 19 U.S.C. 1514.

The protested merchandise, as tested by both the Customs and the independent laboratories, meets the Ch. 17, Subheading Note 1 definition of “raw sugar” as a sugar whose content of sucrose by weight, in the dry state, corresponds to a polarimeter reading of less than 99.5 degrees.

The protested Customs laboratory procedures were performed in conformance with Ch. 17, U.S. Additional Note 1. The polarimetric tests were performed in accordance with procedures recognized by the International Commission for Uniform Methods of Sugar Analysis (ICUMSA).

Customs laboratory reports are official documents and cannot be disregarded for any reason. In cases such as this one, where a party submits an outside laboratory report that differs from the Customs laboratory report, the Customs report takes precedence over the outside report. See Customs Directive 3820-002A, dated May 5, 1999.

In administering the HTSUS, and in order to classify sugars consistently, the same laboratory analysis must be executed throughout Customs. Customs cannot rely on outside reports that may or may not utilize different testing methods and still remain consistent in its tariff classification. Therefore, Customs must rely on its own laboratory analysis when determining the proper tariff classification of merchandise and need not consult an independent laboratory. See HQ 955086, dated October 18, 1993, which states “absent a conclusive showing that the method for determining [the material’s] composition used by Customs is in error, or that our results are erroneous, there is a presumption that the results obtained by Customs are correct,” citing Exxon Corp. v. United States, 462 F. Supp. 378, 81 Cust. Ct. 87, C.D. 4772 (October 16, 1978). The importer has not provided evidence that would conclusively show that the Customs laboratory results are in error. There is no direct evidence that the tests on the entry protested were inaccurate because samples from the protested entry are no longer available for new testing.

This determination is limited to this protest. By its very nature, every entry of raw sugar is unique. Absent samples for new testing of the sugar from the entry under protest there is no further action Customs can take on the instant protest. However, the results reached for this entry may not be reflective of other entries. Customs will apply the same legal analysis to any laboratory results protested, but the facts of a different entry may change the results of a protest on that entry. Where sugar samples are available from other entries in which there were significant discrepancies in the laboratory results, we suggest the Customs laboratory perform new tests so that decisions can be made regarding the appropriate polarity and rate of duty.

HOLDING:

In this instance, Customs has followed the testing standards set forth in the HTSUS. There is no substantive evidence that has been presented to this office which establishes that either the method used by Customs or the results obtained were erroneous. Absent this evidence, Customs results stand and the sugar at issue remains classified in subheading 1701.11.5000, HTSUS, with an average polarity of 99.268 degrees.

The protest should be DENIED. In accordance with Section 3(A)(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 of the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

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