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]{.underline}, 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](http://www.customs.gov/), by means of the Freedom of
Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division