CLA-2 RR:CR:GC 960743ptl
John B. Pellegrini, Esq.
Ross & Hardies
65 East 55th Street
New York, NY 10022-3219
RE: Reconsideration of New York Ruling Letter (NYRL)
B86742; Vodka and a Stainless Steel Cocktail Shaker; HQ
085326, 954579, 082954, 956368, 950845.
Dear Mr. Pellegrini:
This is in response to your request for reconsideration of
NYRL B86742, dated June 26, 1997, issued to you on behalf of
Joseph E. Seagram & Sons, Inc. concerning the classification,
under the Harmonized Tariff Schedule of the United States
(HTSUS), of bottled vodka distilled in Sweden and a stainless
steel cocktail shaker produced in Taiwan. The two products are
intended to be packaged together in a foreign trade zone prior to
being offered for sale in the United States. That ruling held
that the two products should be classified as separate articles.
In preparing this ruling, consideration was given to your
presentation at our meeting on September 18, 1997, and after
examination of the sample submitted.
FACTS:
The first of the two articles under consideration is a 750ml
glass bottle containing vodka distilled in Sweden. The other
article is a stainless steel cocktail shaker produced in Taiwan.
The importer intends to enter each of the articles independently
into a foreign trade zone where they will be packaged together
prior to being withdrawn for sale in the United States. The cost
of the two articles is comparable (the vodka being $6.74 for 750
ml. and the shakers vary between $6.50 and $7.80). Thus, neither
article clearly dominates the other on a pure value basis.
Because the articles are to be packaged together for retail
sale, you contend that they should be considered a set. Further,
once it has been established that the products as offered for
sale constitute a set, you contend the products should be
classified in the subheading 2208.60.20, HTSUS, which describes
spirits, considering the relative roles of the two components and
laws which govern the sale of spirits.
ISSUE:
Should a cocktail shaker and a bottle of vodka which are
packaged together be classified as separate articles, or be
considered a set?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the HTSUS is such that virtually all goods are classified by
application of GRI 1, that is, 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 GRIs may then be applied
in order. In understanding the language of the HTSUS, the
Harmonized Commodity Description and Coding System Explanatory
Notes may be utilized. The Explanatory Notes (ENs), although not
dispositive or legally binding, provide a commentary on the scope
of each heading of the HTSUS, and are generally indicative of the
proper interpretation of these headings. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
In the instant situation, there is no specific heading that
refers to the article as it is proposed to be offered for sale.
The article consists of two components: a bottle of vodka and a
stainless steel cocktail shaker. The vodka is classifiable under
subheading 2208.60.2000, HTSUS, which provides for vodka ... in
containers each holding not over 4 liters ... valued over $2.05
per liter. The stainless steel cocktail shaker is classified
under subheading 7323.93.0080, HTSUS, which provides for Table,
kitchen or other household articles and parts thereof, of iron or
steel, other, of stainless steel, other. This multiple
classification potential for the article requires that we attempt
to classify the article in accordance with the provisions of GRI
3.
GRI 3 requires that we examine the components of the article
to determine whether the elements enumerated in the rule have
been satisfied. GRI 3(a) provides that the heading which
provides the most specific description is to be used rather than
one which is more general. When there are mixtures of articles
or composite goods put
up for sale as sets for retail sale, the rule states that the
headings shall be considered equally specific, thus forcing us to
turn to GRI 3(b).
GRI 3(b) governs the classification of mixtures, composite
goods consisting of different materials or made up of different
components, and goods put up in sets for retail sale. The EN's
provide that, if this rule applies, goods shall be classified as
if they consisted of the material or component which gives them
their essential character. This determination may be based upon
a variety of factors, such as bulk, quantity, weight or value, or
by the role of a constituent material in relation to the use of
the goods. However, for GRI Rule 3(b) to apply, the goods put up
for retail sale must meet three criteria. First, they must
consist of at least two different articles which are, prima
facie, classifiable in different headings. Second, they must
consist of products or articles put up together to meet a
particular need or carry out a specific activity. Finally, they
must be put up in a manner suitable for sale directly to users
without repacking.
The instant combination meets the first and last criteria of
GRI 3(b). The two items are classifiable in different headings
and the combination will be put up for sale without the need for
repacking. However, the question of whether it meets the second
criteria of being put together to meet a particular need or carry
out a specific activity is questionable.
It is your contention that the subject articles constitute a
set within the scope of GRI 3(b). In support of this, you cite
several Headquarters rulings which also happen to revolve around
some article which was packaged along with a bottle of an
alcoholic beverage (HQ 085326, dated September 22,1989, and HQ
954579, dated October 6, 1993, both involved a bottle of spirits
which was packaged with glassware and HQ 082954, dated
December 20, 1989 involved a bottle of champagne packaged with
some glasses). We also note HQ 956368, dated July 7, 1997,
concerning bottles of Scotch or Canadian whiskey which were
packaged with pouring cradles.
All of these combinations happen to facilitate the direct
consumption of the alcohol. The cradles help pour it, and the
glasses assist in its consumption. No intervening process or
additional element is introduced or needed to complete the act of
consumption. Additionally, the articles packaged with the
bottles of liquor are definitely ancillary, either in terms of
relative cost or the potential for subsequent reuse of the
product. The cost of the glasses was a small fraction of the
cost of the liquor and the cradles were shaped to hold the
bottles of the particular brands with which they were packaged.
Additional cases cited concern articles which are regularly
sold or merchandised as units. Through standard usage and common
advertising practice, assemblages such as "desk organizing sets,"
"cheese sets" and "coffee service sets" are understood by most
people. The components of these "sets," as presented for sale,
qualify as GRI 3(b) sets.
In this case, we have been presented with two articles
which, although they can be used together, are not
interdependent. At times, the cost of the cocktail shaker will
exceed the cost of the bottle of vodka. Due to its construction,
the useful life of the shaker can be safely expected to outlast
many bottles of vodka. Additionally, the shaker is not used in
the consumption of the vodka. Rather, it is something into which
vodka, or another liquor, is poured so that additional materials
can be added in the preparation of a mixed beverage. The
cocktail shaker is akin to the wooden bowl which was the subject
of Headquarters ruling HQ 950845, dated June 26, 1992. In that
case, a wooden bowl containing a mixture of nuts and raisins was
held not to be a set. The two products were classified
separately.
The nature and use of the two items distinguishes it from
the previously cited cases in which alcohol bottles were packed
with an accessory article which facilitated immediate
consumption. Here, the shaker is not an accessory, but a
significant item whose use is not dedicated to use with the
vodka. It is to be used along with some alcoholic beverage and
other ingredients to prepare a "mixed drink." Including it with
the bottle of vodka is an inducement for a consumer to purchase
that particular brand. However, once the contents of the bottle
which is packaged with the shaker are consumed, the shaker will
perform as intended with any brand. The mere packaging of the
two items does not create a set for classification purposes, even
if there might be instances when the products would be used
together. Such an argument could lead to an expansion of the
spaghetti meal example given in the EN's to include a stainless
steel pot in which to cook the meal. Such an expansion is not
contemplated under the GRI. The two items do not constitute a
set within the scope of GRI 3(b). They should be classified as
separate articles under GRI 1.
HOLDING:
The applicable subheading for the vodka will be
2208.60.2000, HTSUS, which provides for vodka ... in containers
each holding not over 4 liters ... valued over $2.05 per liter.
The rate of duty will be 8.1 cents per proof liter. In addition,
the vodka 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 stainless steel cocktail
shaker will be 7323.93.0080, HTSUS, which provides for Table,
kitchen or other household articles
and parts thereof, of iron or steel, other, of stainless steel,
other. The rate of duty will be 2.6 percent ad valorem.
NY B86742, issued June 26, 1997, is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division