HQ 082955

May 29, 1990

CLA‑2 CO:R:C:G 082955 DFC

CATEGORY: Classification

TARIFF NO.: 2208.30.3030

John B. Pellegrini, Esq.

Law Offices

Ross & Hardies

529 Fifth Avenue

New York, New York 10017‑4608

RE: Tariff classification of a ceramic flagon and a cloth bag

Dear Mr. Pelligrini:

In a letter dated October 18, 1988, you inquired as to the tariff
classification of Scotch whiskey imported in a ceramic flagon which is
in a cloth bag. All of these items are packaged inside a cardboard box.
You have also submitted further arguments supporting your position in a
letter dated September 22, 1989.

FACTS:

The ceramic flagon is dark blue, oval shaped, and has a capacity of 750
milliliters. It is embossed on the front with a man on horseback holding
a sword, and with other embossed

decorations. A label appears in an oval in the front of the jug which
reads \"Royal Salute, 21 Years Old Blended Scotch Whisky.\" Other labels
are affixed to the jug with information

on the manufacturer, capacity, proof, and country of origin. All of the
labels can be removed. The container has a tight fitting cork stopper.
The flagon is said to have a value of

2.58 English pounds.

The cloth bag consists of velvet material with a drawstring at the top.
The words \"Royal Salute\" and \"Chivas\" are embroided in gold
lettering on opposite sides of the bag. The bag\'s fabric is not
identified, but the value is stated to be approximately 25 pence.

It is your opinion that the merchandise is classifiable under subheading
2208.30.30, Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), as Irish and Scotch whiskies.

‑2‑

ISSUE:

Whether the flagon and the cloth bag are separately classifiable, or are
classifiable in the same manner as their contents.

LAW AND ANALYSIS:

In applying the HTSUSA, the Customs Service must follow the terms of the
statute. Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation

(GRI\'s). GRI 1 provides that \"classification shall be determined
according to the terms of the headings and any relative section or
chapter notes, and, provided such headings or notes do not otherwise
require, according to /the remaining GRI\'s taken in order/.\" In other
words, classification is governed first by the terms of the headings of
the tariff and

any relative section or chapter notes.

GRI 5, HTSUSA, which is relevant in determining whether the flagon and
cloth bag are classifiable in the same manner as the whiskey reads as
follows:

5\. In addition to the foregoing provisions, the following rules shall
apply in respect of the goods referred therein:

\(a\) Camera cases, musical instrument cases,

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;

\(b\) 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 does

not apply when such packing materials or packing

containers are clearly suitable for repetitive use.

‑3‑

Rule 5(a) does not apply here because neither the flagon nor the cloth
bag are specially fitted or shaped to contain a specific article.

With regard to the cardboard box and the cloth bag, Rule 5(b) is not
applicable if the packing materials and packing container 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.
It is Customs position that the subject

cloth bag is not designed for repetitive use. Although capable of
further use with various small articles, such uses are considered
fugitive and, therefore, not within the meaning of

GRI 5(b).

Information before this office is that the flagon is a container \"of a
kind normally used for packing\" premium whiskies. Further, it is not
suitable for repetitive use noting that reuse of the flagon as a liquor
bottle is expressly prohibited by federal law and regulation. Thus, the
flagon is classifiable in the same manner as its contents within the
purview of Rule 5(b).

The cardboard box and the cloth bag are not suitable for repetitive use
and therefore are considered packing containers within the purview of
Rule 5(b) and are classifiable with their contents.

HOLDING:

The merchandise at issue is classifiable under subheading 2208.30.3030,
HTSUSA, with duty at the rate of 5.3 cents/pf liter. Imports under this
subheading may be subject to a

Federal Excise Tax (26 U.S.C. 5001) of \$12.50 per proof gallon and a
proportionate tax at the like rate on all fractional parts of a proof
gallon.

Sincerely,

John Durant, Director

Commercial Rulings Division