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NY N022675




February 29, 2008

CLA-2-22:OT:RR:NC:232

CATEGORY: CLASSIFICATION

TARIFF NO.: 2208.30.3030; 2208.50.0030

Mr. John B. Pellegrini
McGuire Woods LLP
1345 Avenue of the Americas
Seventh Floor
New York, NY 10105-0106

RE: The tariff classification of spirit gift packages withdrawn from a United States warehouse

Dear Mr. Pellegrini:

In your letter dated January 29, 2008, on behalf of Diageo North America, Inc., you requested a tariff classification ruling.

Photographs and actual samples of the products were submitted with your request. The samples submitted will be returned as per your request. The subject merchandise consists of two spirit gift packages. The first gift package contains a 750 ml bottle of Scotch whisky with a cardboard container fitted to hold the bottle. The container is covered in imitation leather (polyurethane). The Scotch whisky is produced in the United Kingdom, and the container is a product of China. These items will be packaged together in a United States bonded warehouse. The container represents 13 percent of the total product cost. The second gift package contains a 750 milliliter bottle of gin and an acrylic container. The gin is produced in the United Kingdom, and the acrylic container is a product of China. The acrylic container represents 18 percent of the total product cost. These items will be packaged together in a United States bonded warehouse.

It is your client’s opinion that the containers are correctly classified with the spirits as usual containers pursuant to GRI 5.

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 GRI may then be applied, taken in order. Pursuant to GRI 5:

In addition to the foregoing [GRI’s], the following rules shall apply in respect of the goods referred to therein:

Camera cases, musical instruments, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use. For the purposes of GRI 5(b), the term “repetitive use” is interpreted to mean use with goods of the kind presented in the packing container.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings). The EN’s facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI’s. While not legally binding, the EN’s represent the considered views of classification experts of the Harmonized System Committee. It has, therefore, been the practice of the Customs Service to follow the terms of the EN’s, when appropriate, when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). The EN for GRI 5(b) state:

This rule governs the classification of packing materials and packing containers of a kind normally used for packing the goods to which they relate[;] [h]owever, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use, for example, certain metal drums or containers of iron or steel for compressed or liquefied gas [and because] [t]his Rule is subject to Rule 5(a) ... the classification of cases, boxes and similar containers of the kind mentioned in Rule 5(a) shall be determined by the application of that rule." Thus, in accordance with GRI 5(b), if the container under consideration is not of a kind "normally" used for packing its contents, or if it is "clearly suitable for repetitive use," it will be classified separately from its contents.

We agree, that according to the guidelines set forth by GRI 5(a), the container fitted to contain the Scotch whisky is of the sort normally sold with such an article and the essential character of this gift package is imparted by the alcoholic beverage.

With regard to classification under GRI 5(b), it our opinion that the acrylic box is not designed for repetitive use. Further, it is a type of container normally used for packing these types of goods.

The applicable subheading for the gift package containing the Scotch whisky will be 2208.30.3030, Harmonized Tariff Schedule of the United States (HTSUS), which provides for WhiskiesIrish and Scotchin containers each holding not over 4 liters. The rate of duty will be free. In addition, the Scotch whisky is subject to a Federal Excise Tax of $13.50 per proof gallon and a proportionate tax at the like rate on all fractional parts of a proof gallon.

The applicable subheading for the gift package containing gin will be 2208.50.0030, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Gin and Genevein containers each holding not over 4 liters. The rate of duty will be free. In addition, the gin is subject to a Federal Excise Tax of $13.50 per proof gallon and a proportionate tax at the like rate on all fractional parts of a proof gallon.      

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at telephone number (301) 575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Frank Troise at 646-733-3031.

Sincerely,

Robert B. Swierupski
Director,

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