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HQ 963378

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June 22, 2001

CLA-2 RR:CR:TE 963378 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3020

Mr. Brandon Terrell
Fritz Companies, Inc.
1600 Genessee Street
Suite 450
Kansas City, Missouri 64102

RE: Picnic Backpack; Subheading 4202.92.3020 ; General Rules of Interpretation 1 and 3; Sets; “More Than” Doctrine; JVC Company of America v. United States.

Dear Mr. Terrell:

The purpose of this correspondence is to respond to your request of May 6, 1999. The correspondence in issue requested, on the behalf of your client, American Camper, a binding classification ruling of the merchandise described as a “picnic backpack.”

This ruling is being issued subsequent to the following: (1) A review of your submission dated May 6, 1999; and (2) An examination of the sample identified in your correspondence as style “nkc886” and bearing a tag identifying the article as item “BBS-315.”

The Customs Service will retain the sample submitted with your ruling request.

FACTS

The article in issue, identified in your correspondence as a “backpack” and a “picnic backpack,” measures approximately fifteen and one-half (15 ½) inches in height and eleven (11) inches in width. It has two primary compartments, a pocket in the front and two detachable bottle holders, one on each side of the backpack.

The Customs Service is advised that the backpack is composed entirely of nylon. A visual examination indicates that a plastic covering protects certain interior and exterior seams. No information has been provided to the Customs Service regarding any insulative material nor has a Customs Service laboratory analysis been undertaken. A visual examination reveals the entire pack, the front, back, top, sides, bottom and interior middle divider to be insulated with a three-eighths (3/8) inch thick foam insulating or padding material.

The two primary compartments are a front compartment and a rear compartment. The front and rear compartments measure the same height and width as the body of the backpack and both are about four (4) inches deep. The front compartment has a full zipper closure that extends from the bottom of one side of the pack over the top to the bottom of the opposite side. The closure has two zipper pulls. When fully opened outward, the top or flap aspect of the compartment lays flat on a ninety degree angle to the pack.

The interior aspect of the front compartment of the pack that opens outward has two pockets and twelve fittings for silverware. One pocket is located at the top of the flap. It is five (5) inches deep and spans the width of the pack. A second pocket, composed of nylon mesh, is located at the bottom of the front flap. It is also five (5) inches deep and it too spans the width of the pack. The bottom pocket has a hook and loop fastener system attached to a ten and one-half (10 ½) inch length of elastic. The hook aspect of the system is attached to the top end of the length of elastic. The loop aspect of the system is attached to the top of a five (5) inch piece of elastic that is affixed to the top part of the mesh pocket. The silverware fittings consist of twelve individual, side-by-side, two (2) inch deep pockets with twelve elastic bands approximately three-fourths (3/4) of an inch above the top of each of the pockets. The twelve pockets and elastic bands are designed to hold individual pieces of silverware.

The inside aspect of the front compartment has four pockets or pouches in two rows of two and a single elastic band. The pouches are designed to hold four cups approximately three and three-fourths (3 ¾) inches deep and three and five-eighths (3 5/8) inches in diameter. The pouches are sewn into the pack with one row at the bottom of the inside, front compartment and the second row immediately above the first. The pouches have elastic bands at the top. The single elastic band is sewn in the center of the pack one and one-half (1 ½) inches from the top. It is designed to retain a solid plastic spoon and is two inches long and one inch wide.

The rear compartment has no interior pockets. It has a zipper closure that begins approximately nine (9) inches from the bottom of the pack on both sides and crosses over the top. The closure has two pulls.

The pocket on the outside aspect of the front compartment measures eight (8) inches in height by eight (8) inches in width. It is approximately one and one-half (1 ½) inches deep. The pocket has a six (6) inch zipper closure one inch from the top. The interior is partially coated, covered or laminated with plastic.

The two detachable bottle holders are attached to the sides of the pack extending eleven and three-fourths (11 ¾) inches upward from the bottom. They are four and one-half (4 ½) inches in diameter and have an elastic closure at the top. The bottle holders attach to the pack by means of adjustable nylon webbing and a plastic clip at the top of the holder, and a hook and loop fastener at the bottom of the holder. The holders have a one-eighth (1/8) inch thick foam insulating material between the exterior and interior lining. They are constructed of the same material as the backpack.

The picnic backpack has a handle sewn on to the top of the pack. The handle is made of one and one-half (1 ½) inch wide nylon webbing. The webbing is covered by the same nylon material of which the pack is composed. The handle is padded with a one-eighth (1/8) inch thick dense plastic foam and is four (4) inches long. The nylon webbing that attaches the handle to the pack is sewn to and extends nine (9) inches down both sides of the pack.

The pack also has two adjustable shoulder straps. The straps are contoured for the comfort of the wearer and are two and three-eighth (2 3/8) inches wide. They are padded with one-fourth (1/4) inch thick dense plastic foam. Plastic clips permanently attached to the bottom aspect of the shoulder pads permit the user to adjust the nylon webbing shoulder strap length. The entire shoulder straps, at maximum extension, measure approximately thirty-four and one-half (34 ½) inches in length.

The lower aspect of the adjustable nylon webbing shoulder straps are one (1) inch wide and are attached to the lower part of each side of the pack. Two triangular-shaped pieces of material, one on each side of the backpack, are employed to attach the nylon webbing to the body of the backpack. The triangular-shaped pieces of material extent one and one-half (1 1/2) inches from the side of the backpack to the tip of the triangle.

The Customs Service is advised that the picnic backpack will be imported with and the sample included a plastic cutting board, four plastic plates, four plastic cups, a solid plastic spoon and four sets of silverware. The cutting board is nine and three-fourth (9 ¾) inches by six (6) inches. It fits into the inside, top pocket of the front compartment. The plates are nine (9) inches in diameter and fit into the mesh pocket that is located in the lower, inside part of the front compartment. The dimensions of the plastic cups have previously been addressed and also as previously stated, the cups fit into the pouches in the front compartment. The plastic spoon is seven and one-half (7 ½) inches long and fits into the elastic band in the center of the inside aspect of the front compartment. The silverware consists of four stainless steel and plastic knives, forks and spoons. The spoons and forks are seven and one-half (7 ½) inches long and the knives are eight and one-fourth (8 ¼) inches long.

The backpack will also be imported with a tablecloth and four napkins. The tablecloth and napkins are constructed of man-made fibers and measure forty (40) inches by forty (40) inches square and twelve (12) inches by twelve (12) inches square, respectively.

American Camper’s submission indicated that the picnic backpack was to include a can opener, in addition to the other merchandise. The sample did not include a can opener and no description of the can opener was provided.

The country of origin of all the merchandise is stated to be the People’s Republic of China.

ISSUES

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the “picnic backpack” which includes the backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloth and napkins?

Do the backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins constitute “goods put up in sets for retail sale” pursuant to General Rule of Interpretation 3 (a) resulting in their classification by the component which gives the set its essential character ?; and

If the backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins constitute a set pursuant to General Rule of Interpretation 3 (a), what is the component of the set pursuant to General Rule of Interpretation 3 (b) that gives the set its essential character for classification purposes?

LAW AND ANALYSIS

The responsibility for interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) rests with the U.S. Customs Service.

See Joint Explanatory Statement of the Committee of Conference, H.R. Conf. Rep. No. 100-576, at 549 (1988) reprinted in 1988 U.S. Code Cong. and Adm. News 1547, 1582 [hereinafter Joint Explanatory Statement]. The Customs Service, in accordance with its legislative mandate, classifies imported merchandise pursuant to the General Rules of Interpretation (GRI) and the Additional U. S. Rules of Interpretation See 19 U.S. C. 1202 (West 1999)..

General Rule of Interpretation 1 provides, in part, that classification decisions are to be “determined according to the terms of the headings and any relative section or chapter notes.” General Rule of Interpretation 1. Although GRI 1 further provides that merchandise which can not be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation in their sequential order, the Explanatory Notes (EN) “make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (V).

The Explanatory Notes constitute the official interpretation of the Harmonized System at the international level. See Joint Explanatory Statement supra note 1, at 549. The Explanatory Notes, although neither legally binding nor dispositive of classification issues, do provide commentary on the scope of each heading of the HTSUSA. The EN’s are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); Lonza, Inc. v. United States, 46 F. 3rd 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. While this is the mandatory initial step in the classification process, the Customs Service is also appreciative of the fact that “many goods are classified in the Nomenclature without recourse to any further consideration of the Interpretative Rules.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (IV). Since the backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins can not be classified pursuant to GRI 1 solely by reference to one HTSUSA heading and section or chapter notes, GRI 1 instructs that the merchandise should be classified pursuant to the subsequent GRI’s, in their sequential order.

A review of GRI 2 leads the Customs Service to the conclusion that its provisions will not prove beneficial in classifying the articles that comprise the “picnic backpack.” The merchandise under consideration in this ruling letter does not constitute incomplete, unfinished, unassembled or disassembled articles that are addressed in GRI 2 (a). The backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins are composed of nylon, plastic foam, plastic and stainless steel and are, in accordance with GRI 2(b), “goods consisting of more than one material.” Goods consisting of more than one material which cannot be classified pursuant to GRI 1 or GRI 2 are to be classified according to GRI 3.

An examination of the dictates of GRI 3 becomes appropriate when goods are prima facie classifiable under two or more headings. The backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins, if classified individually, would respectively be classified in the following headings: (1) The backpack and bottle holders, heading 4202, HTSUSA; (2) The plastic plates, cups, cutting board and spoon, heading 3924, HTSUSA; (3) The stainless steel and plastic knives, heading 8211, HTSUSA; (4) The stainless steel and plastic forks and spoons, heading 8215, HTSUSA; and (5) The tablecloth and napkins, heading 6302, HTSUSA.

The Customs Service, prior to proceeding with further analysis of GRI 3, believes that it is prudent to initially address its conclusions that the backpack and bottle holders are classified under heading 4202, HTSUSA, the plastic plates, cups, cutting board and spoon under heading 3924, HTSUSA, the stainless steel and plastic knives under heading 8211, HTSUSA, the stainless steel and plastic forks and spoons under heading 8215, HTSUSA and the tablecloth and napkins under heading 6302, HTSUSA.

A survey of the HTSUSA headings by the Customs Service led to Chapter 42, Articles of Leather; Saddlery and Harness; Travel Goods, Handbags and Similar Containers; Articles of Animal Gut (Other than Silkworm Gut) Titles of Chapters are provided for ease of reference only and have no legal bearing on classification. General Rule of Interpretation 1; See also General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (II).. Heading 4202 of Chapter 42 provides:

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 of mainly covered with such materials or with paper. (Emphasis added).

Since backpacks are designated eo nomine, that is by name, in heading 4202, HTSUSA, and since eo nomine designations include all forms of the article in issue, the questions become “What merchandise did Congress intend to be considered a “backpack”?” and “Does the “picnic backpack” submitted for classification fall within the congressionally intended definition?”

The initial responsibility of the Customs Service is to examine the plain meaning of the statutory text. See Marcor Dev. Corp. v. United States, 926 F. Supp. 1124, 1129 (C.I.T. 1996) citing Trans-Border Customs Services v. United States, 843 F. Supp. 1482, 1485 (C.I.T. 1994). If the plain language of the heading establishes the clear and unambiguous intent of Congress, the classification inquiry at the heading level is complete. See Id. The meaning of a tariff term, absent contrary congressional intent, is one that is in accord with its common and popular understanding. See Carl Zeiss, Inc. v. United States, 195 F. 3rd 1375, 1379 (Fed. Cir. 1999).

It is the conclusion of the Customs Service, subsequent to a review of the tariff schedule, that Congress intended the term “backpack” to be understood in its common and popular meaning. “Backpacks” are commonly understood to be a pack or knapsack used to carry personal effects which include equipment, clothing and food, and are worn on the back of the user. Additional U.S. Note 1 to Chapter 42 specifically provides that “travel, sports and similar bags” of heading 4202, HTSUSA, “means goodsof a kind designed for carrying clothing and other personal effects during travel, including backpacks.” Additional U.S. Note 1, Ch. 42, HTSUSA.

Since neither the tariff schedule nor the Explanatory Notes offer a definition of the term “backpack,” the Customs Service deemed it judicious to confirm the common and popular meaning by reviewing the definition of “backpack.” See generally Carl Zeiss Id. (providing that reference to dictionaries and other reliable sources are acceptable methods of construing tariff terms). It is the conclusion of Customs that words such as “backpack” are frequently not defined in the tariff schedule because they are of such common understanding that the reader may fully understand Congress’ intent without additional explanation.

A survey of respected dictionaries provides the following definitions of the word “backpack”:

(1) “ a pack carried on the back” “to carry a pack on the back: used esp. of hiking, camping, ect.” The Compact Edition of the Oxford English Dictionary, Vol. III, p. 45 (R.W. Burchfield, ed., Oxford at the Clarendon Press 1987);

(2) “to carry (food or equipment) on the back esp. in campingto carry one’s food or equipment on the back esp. in camping.” Webster’s Third New International Dictionary of the English Language Unabridged (Philip Babcoci Gove, Ph.D. ed., Merriam-Webster, Inc. 1986);

(3) “ a pack or knapsack, often of canvas or nylon, to be carried on one’s backa piece of equipment designed to be used while being carried on the back.” Random House Unabridged Dictionary (Stuart Berg Flexner ed., Random House, 2nd ed. 1983); and

“a pack or bundle of supplies to be carried on one’s back, often supported on a lightweight metal frame strapped to the body.” The Random House Dictionary of the English Language (Jess Stein ed., Random House 1973).

It is the conclusion of the Customs Service, subsequent to reviewing the referenced dictionaries, that the term “ backpack” is commonly understood to be a pack or knapsack used to carry personal effects which include equipment, clothing and food while being worn on the back of the user. The common theme in the definitions is the transportation of personal effects, including food, clothing and equipment, and the manner in which the personal effects are transported.

Endeavoring to develop an even more in-depth understanding of the term “backpack” and appreciating that no single word of the tariff schedule should be read in isolation, it is noted that heading 4202, HTSUSA, does not simply reference “backpacks.” Heading 4202, HTSUSA, in addition to the numerous other types of containers enumerated, specifically references “knapsacks and backpacks.” (Emphasis added) Heading 4202, HTSUSA. Congress, by listing “knapsacks and backpacks” together, indicated an intent that knapsacks and backpacks should be understood together.

This understanding of the tariff schedule is supported by the definition of “knapsack” in The Oxford English Dictionary, as well as, Webster’s New Collegiate Dictionary. “Knapsack” is defined in The Oxford English Dictionary as “[a] bag or case of stout canvas or leather, worn by solders, strapped to the back and used carrying necessaries A “necessary” is defined by The Oxford English Dictionary as “indispensable, requisite, essential, needful; that cannot be done without.” The Compact Edition of the Oxford English Dictionary, Vol. I, p. 1905. ( R. W. Burchfield, ed. 1987).; any similar receptacle used by travellers for carrying light articles.” The Compact Edition of the Oxford English Dictionary, Vol. I, p. 1544 ( R. W. Burchfield, ed. 1987). Webster’s New Collegiate Dictionary defines “knapsack” as “a bag (of canvas or nylon) strapped on the back and used (as on a hike) for carrying supplies or personal belongings.” Webster’s New Collegiate Dictionary (Henry Bosley Woolf et al. eds., G. & C. Merriam Co. 1977).

The understanding that the terms knapsack and backpack are essentially synonymous is supported by the Court of Customs and Patent Appeals decision of United States v. Standard Surplus Sales, Inc., 667 F.2d 1011 (C.C.P.A. 1981) See Joint Explanatory Statement supra note 1, at 549-50 (stating that decisions of the courts interpreting the TSUS are not dispositive in interpreting the HTSUSA, but should be considered on a case-by-case basis where the nomenclature is unchanged and no dissimilar interpretation is required).. The Court in Standard Surplus was called on to classify merchandise according to the Tariff Schedule of the United States (TSUS), the predecessor of the HTSUSA. The Court, in determining whether certain imported nylon bags were classifiable as sports equipment or as luggage, examined whether there was a distinction between knapsacks and backpacks. The conclusion drawn was that knapsack is a term that proceeded the use of the word backpack, but beyond historical considerations, both terms refer to substantially identical merchandise used for carrying clothing and other personal effects and supplies on the back during travel.

It is, therefore, the decision of the Customs Service that Congress, when it enacted the Harmonized Tariff Schedule of the United States Annotated, intended the term “backpack” as employed in heading 4202, HTSUSA, to encompass packs or knapsacks used to carry personal effects, including equipment, clothing and food, that are worn on the back of the user. Having developed an understanding of the congressionally intended definition of the tariff term “backpack,” the responsibility of the Customs Service turns to determining whether the backpack in issue falls within the meaning of the HTSUSA term.

It is the conclusion of Customs that the backpack of instant classification comports with the congressionally intended definition of the phrase “knapsacks and backpacks” in heading 4202, HTSUSA. The instant article has the traditional shape of a small backpack. It is designed and manufactured to carry personal effects while being worn on the user’s back. It is specifically noted that although the backpack has a handle on the top, common among many backpacks, the handle is designed to facilitate moving the pack only very short distances. The form-fitting shoulder straps and adjustable nylon webbing straps, both of which are of significant construction, enable the backpack and its contents to be easily transported long distances. It is additionally noted that, depending on how the pack is loaded, it is foreseeable that it will have a propensity to swing at an awkward angle if carried by the handle. The simple innovation of providing insulated compartments does not change the identity of this item.

Heading 4202, HTSUSA, pursuant to General Rule of Interpretation 1, specifically identifies the article in issue. No other HTSUSA heading specifically describes the merchandise. The backpack is, therefore, classifiable under heading 4202, HTSUSA.

The Customs Service in arriving at this conclusion is cognizant of and took into full consideration the Court of Appeals for the Federal Circuit decision in SGI, Inc. v. United States, 122 F. 3d 1468 (Fed. Cir. 1997). The specific holding of SGI, that “portable soft-sided vinyl coolers” used for the storage and serving of food or beverages, that possess insulative properties similar to both hard and other soft-sided coolers having a one-half inch thick closed cell polyethylene foam insulation are properly classified as “other household articlesof plastics” in subheading 3924.10.50, HTSUSA, is distinguishable from the facts of the instant ruling. Id. at 1469.

The Court in SGI because it was called on to address the classification of “coolers” with one-half (1/2) inch thick insulation, merchandise that was not identified eo nomine, that is by name in the tariff schedule, applied the ejusdem generis rule of statutory construction. SGI at 1471. Application of the rule of ejusdem generis, which means “of the same kind,” involves a comparison of the enumerated items in a heading or subheading with the article under consideration.

The Customs Service in this ruling is not confronted with a situation in which it must compare the essential characteristics or purposes of the “picnic backpack” with the items in heading 4202, HTSUSA, provided for eo nomine. The HTSUSA specifically identifies “backpacks” in heading 4202, HTSUSA, and mandates that backpacks be classified in heading 4202, HTSUSA, without recourse to the ejusdem generis rule or any other rule of statutory construction.

The Customs Service is conscious of the Court’s dicta focusing ejusdem generis analysis on whether food or beverage was to be transported in the article, but respectfully concludes that it would be improper to apply similar analysis in this ruling. The item under consideration in the instant ruling is a backpack It is noted that Judge Rich, who authored the decision of the Court in SGI, Inc. v. United States, 122 F. 3d 1468 (Fed. Cir. 1997), was a member of the panel that decided the case of United States v. Standard Surplus Sales, Inc., 667 F. 2d 1011 (C. C. P.A. 1981) which recognized in dicta that knapsacks and backpacks were used for transporting food and equipment on the back.. Backpacks are identified by name in heading 4202, HTSUSA. Applying General Rule of Interpretation 1, which provides that “classification shall be determined according to the terms of the headings,” mandates that the Customs Service not undertake further analysis. Undertaking further analysis under the rationale of engaging in statutory construction would breach Customs’ responsibility to classify merchandise according to the congressionally enacted General Rules of Interpretation.

The Customs Service is aware that some importers may advocate that the “cooler backpack / picnic set,” particularly the backpack, is more than a travel or sports bag because of its insulated compartment. The basis for this position being the “more than” doctrine, a doctrine created by the Court of Appeals for the Federal Circuit in Digital Equipment Corp. v. United States, 889 F.2d 267 (Fed. Cir. 1989). The “more than” doctrine, until recently, provided that “merchandise which constitutes more than a particular article or which has additional nonsubordinate or coequal functions is not classifiable as that article.” Id. at 268. Application of the “more than” doctrine in this instance suggests that since the backpack has insulative qualities, it is “more than” a backpack and, therefore, is not classified simply as a backpack in heading 4202, HTSUS.

Although the Customs Service specifically concludes that the “cooler backpack” is designated eo nomine in heading 4202, HTSUSA, reasoning that the insulated compartments do not preclude the item from being a “backpack,” Customs is apprised that the “more than” doctrine is no longer an accepted method of interpreting the HTSUSA. The Court of Appeals for the Federal Circuit in the decision of JVC Company of America v. United States, 234 F.3d 1348 (Fed. Cir. 2000) held that the “more than” doctrine, developed to interpret the Tariff Schedule of the United States, was supplanted by the General Rules of Interpretation of the HTSUSA and does not apply to cases arising under the HTSUS. The Court further held that the General Rules of Interpretation are a “statutorily-prescribed, comprehensive, and systematic method of classification” that supplanted the judicially-created “more than” doctrine. Id. at 1354.

Having concluded that the backpack is classified in heading 4202, HTSUSA, it is necessary to classify the item at the appropriate subheading level. The backpack of instant classification is classified in subheading 4202.92.3020, HTSUSA, as a “backpack and knapsackOther: With an outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other: Other: Of man-made fibers: Backpacks.”

The plastic plates, cups, cutting board and spoon are classifiable in Chapter 39, Plastic and Articles Thereof.” The heading that most specifically describes the items is heading 3924, HTSUSA, which provides for “[t]ableware, kitchenware, other household articles and toilet articles, of plastics.” A review of the Explanatory Notes to Chapter 39 supports this decision as it relates to the plastic plates, cups and spoon. Explanatory Note 39.24 (A) provides that “tableware” includes plates, cups and spoons made of plastic. Explanatory Note 39.24 (A).

The Customs Service specifically notes that although subheading 3924.10.20, HTSUSA, includes plates and cups, proper application of the General Rules of Interpretation precludes classifying merchandise by an initial examination of the subheadings. General Rule of Interpretation 1 mandates that the merchandise under classification consideration initially comport with the heading prior to examining the subheadings of a heading. In the instant situation, the heading which most specifically describes the plates, cups, cutting board and spoon made of plastic is heading 3924, HTSUSA.

The stainless steel and plastic knives, as well as, the stainless steel and plastic forks and spoons are classifiable in Chapter 82, “Tools, Implements, Cutlery, Spoons and Forks, of Base Metal; Parts Thereof of Base Metal.” Heading 8211, HTSUSA, encompasses the knives, providing for “Knives with cutting blades, serrated or not (including pruning knives), other than knives of heading 8208 Heading 8202 provides for the classification of knives and cutting blades for machines or mechanical appliances..” Heading 8211, HTSUSA. The forks and spoons are provided for in heading 8215, HTSUSA, which includes “Spoons, forksand similar kitchen or tableware.” Heading 8215, HTSUSA. See also Explanatory Note 82.11 and 82.15 (discussing the knives, spoons and forks of the respective headings and the fact that the utensils may be made of a single piece of metal or have a fitted plastic handle).

The tablecloth and napkins made of man-made textile fibers are classifiable in Chapter 63, “Other Made Up Textile Articles; Needlecraft Sets; Worn Clothing and Worn Textile Articles; Rags.” The heading that most specifically describes these articles is heading 6302,HTSUSA, which provides for “Bed linen, table linen, toilet linen and kitchen linen.” The Explanatory Notes to heading 6302, EN 63.02, indicates that it encompasses “Table linen” which includes, among other items, “table cloths, table mats and runners, tray-cloths, table-centres, serviettes, tea napkins, sachets for serviettes, doilies, drip cloths.” Explanatory Note 63.02 (2).

The bottle holders, like the backpack, are classifiable in Chapter 42. The heading that most specifically describes the bottle holders is heading 4202, HTSUSA, which provides for, among other articles, “bottle cases.” See HQ 962040 (Oct. 21, 1998) (discussing insulated bottle bags designed to contain a single bottle and the SGI decision).

Continuing with the application of General Rule of Interpretation 3, GRI 3(a) provides that the articles should be classified according to the heading which affords the most specific description, unless the multiple headings under consideration refer to only part of the materials or substances contained in goods that are mixed or composite, or to only part of “items in a set put up for retail sale.” The backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins are not mixed or composite goods, warranting inquiry into the issue of whether they cumulatively constitute “items in a set put up for retail sale.” See generally, What Every Member of The Trade Community Should Know About: Classification of Sets Under the HTS, an Informed Compliance Publication of the Customs Service available on the World Wide Web site of the Customs Service at www.customs.gov, search “Importing & Exporting” and then “U.S. Customs Informed Compliance Publications.” General Rule of Interpretation 3.

The General Rules of Interpretation do not define the phrase “items in a set put up for retail sale.” The Explanatory Notes do, however, offer guidance. The precise phrase in GRI 3(a) “items in a set put up for retail sale” is not addressed in the EN’s. The EN’s do however address a similar phrase employed in GRI 3(b). The phrase employed in GRI 3(b) and discussed in the EN’s is “goods put up in sets for retail sale.” General Rules for the Interpretation of the Harmonized System, Rule 3 (b), Explanatory Note (X). It is the conclusion of the Customs Service that the two phrases address the same issue.

Explanatory Note (X) of GRI 3(b) provides three factors to be considered when determining whether goods have been put up in sets for retail sale. The factors are:

The goods consist of at least two different articles that are, prima facie, classifiable in different headings;

The goods consist of articles put up together to “meet a particular need or carry out a specific purpose;” and

The goods are “put up in a manner suitable for sale directly to users without repacking.” General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X) (a) – (c).

A review of the HTSUSA and an examination of the “picnic backpack” leads to the conclusion that the backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins are prima facie classifiable in different headings and are packaged in a manner suitable for sale directly to users. The issue that remains, the second of the three factors, is whether the articles as put up together “meet a particular need or carry out a specific activity.” General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X)(b).

The Explanatory Notes do not define the phrase “meet a particular need or carry out a specific activity.” Id. The EN’s do, however, offer examples of items put up together for sale directly to the user which constitute sets. The initial example consists of “a sandwich made of beef, with or without cheese, in a bun,packaged with potato chips (French Fries).” General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X)(1)(a). The second example consists of items to be used together to prepare a spaghetti meal. The components include: (1) A packet of uncooked spaghetti; (2) A sachet of grated cheese, and (3) A small tin of tomato sauce, put up in a carton. See General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X)(b). The third example is a hairdressing set. The items in this set include: (1) A pair of electric hair clippers; (2) A comb; (3) A pair of scissors; (4) A brush; (5) A towel of textile material; and (6) a leather case to store and carry the items. See General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X)(2). The final example of a set is a drawing kit. The drawing kit includes five items put up together in a case of plastic sheeting. The items are: (1) A ruler; (2) A disc calculator; (3) A drawing compass; (4) A pencil; and (5) A pencil-sharpener. See General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X)(3).

A review of each of the examples of sets in EN (X) indicates that components of sets share at lease one common trait. See HQ 953472 (Mar. 21, 1994). The fact that the drafters of EN (X) did not explain when goods put up together “meet a particular need or carry out a specific purpose” suggests that resolution of the issue must be determined by analogy on a case-by-case basis.

The items that comprise each example of a set in EN (X) are related to one another in such a fashion that they interact together to serve a distinct purpose or function to enable a singular result to be achieved. The items in examples one and two are used in conjunction with one another to complete a sandwich meal and prepare a spaghetti meal. The articles in example three are used together for the purpose of hair grooming and the items in example four function with one another to enable the user to draw.

The Customs Service in prior ruling letters has addressed the issue of whether items packaged together constitute sets. The issue in HQ 955714 (Mar. 31, 1994) was whether a ring holder, jewelry box and perfume bottle constituted a vanity set. The ruling concluded that the articles, as packaged, served the particular need of decorative storage and display of vanity items. See also HQ 951902 (Jan. 29, 1996) (addressing a set of kitchen towels) modified by HQ 958198 (Aug. 28, 1992) (modification not changing “essential character” analysis).

Pistol cleaning equipment were the items of consideration in HQ 087432 (Oct. 2, 1990). The articles packaged together included a pistol grip, a base steel bar with a bronze joint and muzzle protector, an extension bar, a bronze bit, a phosphor bronze brush and a cotton bristle. The Customs Service concluded that these items functioned together to carry out the specific activity of cleaning a pistol.

The Explanatory Notes, in addition to offering examples of items that constitute sets, also provides examples of collections of articles which do not function with one another to the degree necessary to establish a set. The initial accumulation of items in EN (X) consists of a can of shrimp, a can of pate de foie, a can of cheese, a can of sliced bacon and a can of cocktail sausages. See General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X)(1). The second example includes a bottle of spirits and a bottle of wine. See id. The items in the first example, although related to one another and usable together, do not “interact with one another so as to comprise a single dish.” HQ 953472 supra. It was concluded in the same ruling that the wine and spirits example did not constitute a set because they would not be used together for the mixing of a single drink nor suitable for serving together on a particular occasion. It should be noted that the Explanatory Notes of the Harmonized Commodity Description and Coding System are an international document that employs words, phrases and understandings which are intended to have a universal international meaning that may be different from the domestic meaning or understanding of a particular member-country or member-countries of the World Customs Organization. See HQ 953472 Id.

The Customs Service, in determining whether all of the articles that comprise the “picnic backpack” “meet a particular need or carry out a specific activity,” may not simply consider the plates, knives, forks, spoons, cups, cutting board, bottle holders, tablecloth and napkins. Customs must also take into consideration the backpack, the container with which the other articles are presented for sale and with which they will be imported.

The Customs Service easily concludes that the plates, stainless steel knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloth and napkins, if imported together but without the backpack, would be considered a set. These items serve the particular need or carry out the specific activity of enabling a meal to be served. The issue that requires greater attention is whether the backpack and all the other items, as put up together for sale, interrelate in a fashion that they meet a particular need or carry out a specific activity.

Customs initially notes that accumulations of merchandise which include containers are not, for that reason alone, precluded from being designated as sets for classification purposes. Explanatory Note (X) to GRI 3 (b) includes examples of a hairdressing set that includes a leather case and a drawing kit that has a case of plastic sheeting. See General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (X)(2) and (3). Customs has also previously issued ruling letters in which sets included containers or holders. See HQ 084717 (Sept. 9, 1989) (toolbox and tool and electrical connector assortment); HQ 082049 (June 20, 1989) (vinyl zippered carrying bag and cookware); HQ 088323 (June 7, 1991) (pencil box with pencils and pencil sharpener).

The issue in the instant ruling is whether the backpack has a nexus with the plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins such that all are intended to be used together or in conjunction with one another to meet a particular need or carry out a specific activity. The backpack is a unique storing system, specifically designed to store and be used with the plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins. The pockets and elastic bands sewn into the front compartment are precisely designed to hold the plates, stainless steel knives, forks and spoons, the plastic spoon, the cups and the cutting board.

Although the items may be removed from the pack and the pack can conceivably be used as a generic backpack, it is the conclusion of the Customs Service that this is not a likely scenario. The pockets in which the stainless steel and plastic knives, forks and spoons are to be carried are specifically shaped. The primary, if not sole, value of these pockets is to hold and transport the utensils. The design and configuration of these pockets and elastic bands makes their use for other purposes questionable. The same holds true, to a lesser extent, of the pockets designed to hold the cups and the mesh pocket and elastic band designed to hold the plates. The cup pockets while capable of supporting other uses are uniquely designed to store the cups. The mesh pocket and elastic strap, similar to the cup pockets may serve other purposes, but it is specifically designed to hold the plates. Utilization for other purposes would not garner the full value of the mesh pocket. The simple elastic band in which the plastic spoon is stored and its location in the backpack indicate its unique design and value to the set.

The fact that the backpack has a plastic foam lining, presumed to offer insulative quality, also militates against the “picnic backpack” being used as a generic backpack. It is the opinion of the Customs Service that purchasers of a backpack with the features this item possesses will not use it as a general-purpose backpack.

It is the conclusion of the Customs Service that the backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins, as packaged for sale to the user, constitute a set. The items serve to enable the user to enjoy a remote picnic in a more elegant fashion. The backpack makes it possible for the picnicker to carry all utensils, food, beverages and sundries long distances with relative ease. The fitted pockets keep the primary items organized during travel. The plates, stainless steel knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloth and napkins make it possible and simpler to serve the picnic meal.

The decision of the Customs Service that the “picnic backpack” is a set is supported by statements of American Camper’s customs broker. American Camper’s broker, in the correspondence seeking the binding classification ruling, advised Customs that all the items that comprise the “picnic backpack” will be “imported as a set.” (Emphasis added) Correspondence of Fritz Companies, May 6, 1999.

Having concluded that the backpack, plates, stainless steel knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloth and napkins are items in a set put up for retail sale pursuant to GRI 3(a), the classification analysis continues with a review of GRI 3(b). GRI 3(b) additionally provides that goods put up in sets for retail sale which cannot be classified by reference to GRI 3(a) shall be classified as if they consisted of that component of the set which gives the set its “essential character.” General Rule of Interpretation 3 (b).

The General Rules of Interpretation do not define the phrase “essential character,” but the Explanatory Notes offer a non-exhaustive list of factors which may be considered. The factors include: (1) The nature of the component; (2) Its bulk; (3) Its quantity; (4) Its weight; (5) Its value; and (6) The role of the component in relation to the use of the goods. See General Rules for the Interpretation of the Harmonized System, Rule 3(b), Explanatory Note (VIII). Explanatory Note (VIII) of GRI 3(b) specifically states that the essential character of a set will “vary between different kinds of goods.” Id.

A review of judicial precedent and prior Customs Service Headquarters Ruling Letters also serves to highlight the meaning of “essential character.” The Court of International Trade in Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (C.I.T. 1996) referencing United States v. United China & Glass, 293 F. Supp. 734, 737, 61 Cust. Ct. 386 (1968) stated that essential character is that attribute “which is indispensable to the structure, core or condition of the article, i.e. what it is.” Headquarters Ruling Letter 955714, elaborating on the decision in United China, stated that “[i]n general, essential character has been construed to mean that attribute which strongly marks or serves to distinguish what an article is.” See HQ 955714 supra; See also, Pillowtex Corp. v. United States, 171 F.3d 1370 (Fed. Cir. 1999); HQ 951902 supra.

It is the conclusion of the Customs Service that the component of the “picnic backpack” which gives the set its “essential character” is the backpack. The particular need or specific purpose that the set serves is the ability to enjoy a picnic in a remote location. The backpack is indispensable to this need or purpose. It is the backpack that provides the set with its predominate intrinsic and financial value. See HQ 088323 Id. (declaring the pencil box to constitute the essential character of the set).

HOLDING

The backpack, plates, stainless steel and plastic knives, forks and spoons, the plastic spoon, the cups, cutting board, bottle holders, tablecloths and napkins that comprise the “picnic backpack” are a set for the purposes of classification pursuant to the Harmonized Tariff Schedule of the United States Annotated.

The item that affords the set its essential character is the backpack.

The “picnic backpack” is classified in subheading 4202.92.3020, HTSUSA, which provides for “knapsacks and backpacksOther: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other, Other: Of man-made fibers: Backpacks.”

The textile quota category for the backpack is 670.

The General Column 1 Rate of Duty is twenty (20) percent, ad valorem.

The tablecloth and napkins, although part of the set for duty purposes, are classified for quota purposes in subheading 6302.53.0020, HTSUSA. The textile quota category for the tablecloth and napkins is 666.

It is recommended that American Camper contact its local Customs Service office prior to the importation of this merchandise to determine the current status of any restraints or requirements due to the changeable nature of the statistical annotation, the ninth and tenth digits of the HTSUSA, and the restraint (quota/visa) categories applicable to textile merchandise.

The designated textile and apparel category may be subdivided into parts. If subdivided, the quota and visa requirements applicable to the merchandise may be affected. It is recommended that American Camper review, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), since part categories are the result of international bilateral agreements and subject to frequent change. The Status Report is an internal issuance of the U.S. Customs Service and is available for inspection at local Customs Service offices.

Sincerely,

John Durant, Director
Commercial Rulings Division

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See also:

• Tariff No.: 3924.10.20 - Plates, cups, saucers, soup bowls, cereal bowls, sugar bowls, creamers, gravy boats, serving dishes and platters, of plastics
• Tariff No.: 3924.10.50 - Tableware and kitchenware articles, nesoi, of plastics
• Tariff No.: 4202.92.30 - Travel, sports and similar bags with outer surface of textile materials other than of vegetable fibers
• Tariff No.: 6302.53.00 - Table linen of man-made fibers, not knitted or crocheted