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HQ 963357




December 21, 1999

CLA-2 RR:CR:TE 963357 SS

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6307.90.9989

Mr. Peter D. Alberdi
A.J. Arango, Inc.
1516 East 8th Avenue
Tampa, FL 33605

RE: Reconsideration of Port Ruling D80909; Wine Bottle/Liquor Bottle Gift Pouch; Wine Bottle Bag; Decorative Covering; Other Made Up Textile Articles; Heading 6307, HTSUSA; Not Heading 4202, HTSUSA

Dear Mr. Alberdi:

This letter is pursuant to Headquarters’ reconsideration of Port Ruling Letter (PD) D80909, dated August 24, 1998, regarding classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a wine bottle/liquor bottle gift pouch made in El Salvador. A physical sample of the wine bottle/liquor bottle gift pouch was forwarded by the Field National Import Specialist.

This letter is to inform you that after review of that ruling, it has been determined that the classification of the wine bottle/liquor bottle gift pouch in subheading 4202.92.9026

Although the PD C80909 was issued in 1998, it appears that the 1999 HTSUSA was consulted. However, we note that subheading 4202.92.9026, HTSUSA, covers the same merchandise as subheading 4202.92.9025, HTSUSA in the 1998 HTSUSA., HTSUSA, is incorrect. As such, PD D80909 is revoked pursuant to the analysis which follows below.

Pursuant to section 625(c), Tarrif Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of PD D80909 was published on November 17, 1999, Customs Bulletin, Volume 33, Number 46.

FACTS:

The sample consists of a bottle bag described by the importer as a “Wine Bottle/Liquor Bottle Gift Pouch with Drawstring Closure.” The bottle bag is comprised of two layers of thin woven man-made fiber material. The bottle bag features a decorative twist tie cord and is designed to contain one standard wine bottle or liquor bottle so that the top neck portion of the bottle is exposed when the decorative cord is tied. This design also permits the top portion of the bottle bag to gather around the neck of the bottle and reveal the contrasting inner layer of textile material. The bottle bag is a decorative cover for a wine or spirit bottle. It is not intended to be used as a carrying bag. The bottle bag is of a kind normally sold separately at retail and is designed primarily for use as a gift bag for a wine or liquor bottle.

ISSUE:

What is the proper tariff classification for the “Wine Bottle/Liquor Bottle Gift Pouch”?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

We find that the “Wine Bottle/Liquor Bottle Gift Pouch” is similar to drawstring bottle bags previously classified by this office. Drawstring bottle bags of textile materials have been classified under both heading 4202, HTSUSA, and heading 6307, HTSUSA, depending on their construction and the purpose(s) for which they are designed. See Headquarters Ruling Letter (HQ) 957464, dated April 18, 1995; HQ 959538, dated November 7, 1996; HQ 960403, dated August 1, 1997; HQ 960367, dated August 6, 1997; HQ 960831, dated January 26, 1998; HQ 960830, dated July 21, 1998; and HQ 963222, dated August 19, 1999.

Heading 4202, HTSUSA, provides for:

Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.

The EN to heading 4202, HTSUSA, state that the heading only covers the specifically named containers and similar containers. Although “bottle cases” are specifically enumerated in the heading, Customs has stated that bottle bags are not “bottle cases” as contemplated by the heading. See HQ 960367, HQ 960403, HQ 960830, HQ 960831 and HQ 963222 (cited above).

In order to warrant classification under heading 4202, HTSUSA, a bottle bag must be found to share the fundamental characteristics attributable to containers of heading 4202, HTSUSA. In Totes, Inc. v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871 (1994), aff’d, 14 Fed. Cir. (T) ___, 69 F.3d 495 (1995), the Court of International Trade concluded that the “essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items.” With respect to the broad reach of the residual provision for “similar containers” in heading 4202, the Court found that the rule requires only that the imported merchandise possess the essential character or purpose running through all of the enumerated exemplars. Thus we must determine whether or not the “Wine Bottle/Liquor Bottle Gift Pouch” is for organizing, storing, protecting and carrying various items.

In HQ 960367 (cited above), Customs classified a “drawstring cooler sack” imported with a bottle of champagne under heading 4202, HTSUSA. The cooler sack consisted of various layers of material: an exterior layer of nylon fabric, a layer of man-made fiber for insulation, a layer composed of two layers of plastic sheeting combined with a glass fiber scrim, and an innermost layer made of plastic metalized with aluminum. Customs held that the purpose of the cooler sack was to provide protection against breakage of the bottle, insulate the bottle and keep it at a desired temperature, and secure a means by which to carry the bottle. In HQ 960403 (cited above), Customs classified a wine bottle bag composed of thick velveteen fabric (pile fabric) under heading 4202, HTSUSA. Customs stated that the pile fabric construction provided an added cushion of protection for the wine bottle in the event of any sudden blows to the encased bottle. Customs found that the purpose of the bag was to provide protection against breakage of the bottle and to secure a means by which to carry the bottle. In HQ 963222 (cited above), Customs classified another wine bottle bag composed of thick velveteen fabric (pile fabric) with a layer of foam insulation/padding under heading 4202, HTSUSA. Customs again found that the purpose of the bag was to provide protection against breakage of the bottle and to secure a means by which to carry the bottle. Due to the construction of the bag, Customs stated that the wine bottle bag did not appear to be designed principally as an alternative for gift wrapping or merely a decorative cover for a wine or champagne bottle. In all three rulings, Customs found that the construction of the bottle bags ensured that they would be used as “protective packing.”

Furthermore, Customs has stated that the substantiality of the container is a pertinent consideration in determining whether a wine bottle bag is classified in heading 4202, HTSUSA. See HQ 957464, HQ 960831 and HQ 960830 (cited above). The rationale is that substantial containers are more likely to be used for carrying purposes and are better able to protect their contents. The term "substantial" in this context refers not only to the material composition of the article, but also to whether it has been designed for repetitive use. Substantial bottle bags are classified in heading 4202, HTSUSA.

The instant wine bottle bag does not possess properties similar to the bottle bags which have been classified under heading 4202, HTSUSA. The wine bottle bag is insubstantial in the sense that it is not designed for travel or to store, protect or organize its contents. It does not have insulation or cushioning which would preserve or protect a wine bottle. The subject wine bottle bag does not have any features that would facilitate the carrying of a wine bottle. While the bag is capable of reuse, it is designed principally as an alternative for gift wrapping and functions as an attractive means for presenting its contents. The thin woven textile fabric construction does not provide an added cushion of protection for the wine bottle in the event of any sudden blows to the bottle. The construction of the wine bottle bag thus ensures that it will be used as decorative packaging rather than protective packing or for convenient carrying of a bottle. The bag is not constructed of materials durable enough to indicate that it is intended to be used as a travel or storage bag; rather, its durability is consistent with its intended use as a gift bag, a more substantial substitute for wrapping paper but not durable enough for continued use for general purpose transport and travel. The lack of protective, storage and organizational properties precludes the subject merchandise from classification under heading 4202, HTSUSA.

Additionally, the EN to heading 4202, HTSUSA, excludes certain containers which are not specially shaped or fitted. Customs regards this requirement as a relevant consideration when classifying merchandise at the periphery of the heading. See HQ 960830, HQ 960831 and HQ 963222 (cited above). Containers which are specially shaped or fitted are better suited for organizing and storing merchandise. Customs has stated that although there is no requirement that bags or similar containers of the second part of heading 4202, HTSUSA, be specially shaped or fitted, it is indicative of a 4202, HTSUSA, classification rather than a classification in 6307, HTSUSA. See HQ 960830, HQ 960831 and HQ 963222 (cited above). The wine bottle bags classified under heading 4202, HTSUSA, in HQ 960367 and HQ 963222 (cited above) each had a separate circular shaped piece of fabric which formed the bottom of the bottle bags. Although not explicitly stated in the rulings, such specially shaped or fitted construction weighed in favor of classification under heading 4202, HTSUSA. We note that one other wine bottle bag classified in heading 4202, HTSUSA, did not have a separate piece of fabric which formed the bottom of the bag. However, we find that the thickness of the velveteen fabric was such that the protective nature of the bag justified classification under heading 4202, HTSUSA. See HQ 960403.

While the “Wine Bottle/Liquor Bottle Gift Pouch” is of a size suitable for presenting a liquor or wine bottle and will be used for this purpose, it is not regarded as specially shaped or fitted. The bag does not have a specially shaped bottom formed from a separate piece of fabric nor does it feature internal fittings to accommodate a bottle. In addition, it is not shaped to the form of a particular bottle and is capable of holding bottles of various dimensions, as well as any number of smaller items. Given our previous conclusion that the wine bottle bag is not for protecting, storing and carrying, combined with the fact that the bag is not specially shaped or fitted, we conclude the wine bag is excluded from heading 4202, HTSUSA.

Heading 6307, HTSUSA, provides for other textile articles not more specifically provided for elsewhere in the tariff schedule. The EN to heading 6307, HTSUSA, state in pertinent part that the provision includes: domestic laundry or shoe bags; stocking, handkerchief or slipper sachets; pajama or nightdress cases; and garment bags other than those of heading 4202, HTSUSA. Drawstring wine bottle bags are similar to exemplars such as laundry bags and shoe bags in that they may take the form of drawstring bags.

The EN to heading 6307, HTSUSA, also states that travel bags and all similar containers of heading 4202, HTSUSA, are excluded from the heading. However, as stated above, the wine bottle bag is not a similar container of heading 4202, HTSUSA, and, thus, is not excluded from heading, 6307, HTSUSA.

We find that the “Wine Bottle/Liquor Bottle Gift Pouch” is similar to the wine bottle bags described as “decorative coverings” classified under heading 6307, HTSUSA. See HQ 960831 and HQ 960830 (cited above). In HQ 960831, the wine bottle bag at issue was a decorative drawstring bag comprised of satin woven fabric. The bag did not feature any cushioning, insulation or interior lining. In HQ 960830 (cited above), the wine bottle bag at issue had an exterior surface covered with nylon textile flock and was decorated by a strip of white faux fur sewn around the top circumference of the bag. In both cases, Customs stated that the construction and appearance of the bags as a whole ensured that they would be used as decorative rather than protective packing for the bottles they transport. Furthermore, emphasis was placed on the fact that the bags were principally designed as alternatives to gift wrapping and functioned as an attractive means for presenting their contents. The instant bottle bag is similar in that it does not provide added cushioning or insulation and is principally designed as an alternative to gift wrapping. The bottle bag will not be used as protective packaging or as a convenient method of carrying a bottle of wine. Accordingly, we find that the “Wine Bottle/Liquor Bottle Gift Pouch” is classified under heading 6307, HTSUSA.

HOLDING:

The subject merchandise is classifiable under subheading 6307.90.9989, HTSUSA, which provides for other made up articles, including dress patterns: other: other: other: other: other. The applicable general column one rate of duty is 7 percent ad valorem.

PD D80909 dated August 24, 1998, is hereby revoked in accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division


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