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HQ 963839

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September 21, 2001

CLA-2-RR:CR:TE 963839 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3020

Mr. Andrew Gerard
Aries International, Inc.
Vice President, Import Services
365 Franklin Avenue
Franklin Square, New York 1010

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

Dear Mr. Gerard:

The purpose of this correspondence is to respond to your request of February 21, 2000, addressed to the National Commodity Specialist Division of the Customs Service. The correspondence in issue requested, on behalf of your client, Foxrun Craftsmen, 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 February 21, 2000; and (2) A review of facsimile correspondence from Ms. Mona Steitieh of Foxrun Craftsmen dated October 5, 2000; and (3) An examination of the sample submitted with your request for a binding ruling.

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

FACTS

The article in issue, identified by Foxrun Craftsmen as a “picnic backpack,” measures approximately sixteen (16) inches in height and twelve and one-half (12 ½) inches in width. The exterior and interior of the backpack is constructed entirely of man-made textile material. It has two primary compartments, two pockets in the front and a detachable bottle holder on the left side of the backpack. The sample “picnic backpack” was accompanied with four settings of flatware, four plastic plates, four plastic wineglasses, a salt shaker, a pepper shaker, a combination corkscrew, knife and bottle opener, a peeling knife, four textile napkins and a textile tablecloth.

The picnic backpack has two primary compartments, one in the front and one in the rear. The top, bottom and sides of the front compartment is lined with a twenty-fourth (1/24) of an inch firm plastic liner and a one-fourth (1/4) inch thick “spongy” foam insulating or padding material. The rear compartment is also lined with the one-fourth (1/4) of an inch thick “spongy” foam insulating or padding material. No information has been provided to the Customs Service regarding any insulative qualities of the foam material nor has a Customs Service laboratory analysis been undertaken.

The front and rear compartments measure the same height and width as the body of the backpack. The front compartment measures about four (4) inches deep and the rear compartment measures about the same. The front compartment has a full plastic zipper closure that extends from the top of the right side, over the top of the pack, down the left side and across the bottom. The zipper closure does not extend down the right side. The closure has two metal zipper pulls. When fully opened, the front or flap aspect of the compartment opens like a book, swinging left to right.

The front compartment of the backpack has fittings on the inside of the front panel and on the middle panel. The fittings on the inside of the front panel, the aspect of the pack that swings open when fully unzipped, consist of four elastic bands designed to retain the plastic wineglasses, two elastic bands that hold the salt and pepper shakers, two additional elastic bands that hold the peeling knife and the corkscrew and one (1) inch wide nylon webbing that forms a “T” four and three-fourths (4 ¾) inches tall and six and three-fourths (6 ¾) inches wide.

The fittings on the inside of the middle panel consist of six nylon mesh pockets two (2) inches wide by two (2) inches high and twelve elastic bands approximately one (1) inch wide located one inch above the nylon mesh pockets. The flatware slides past the elastic band and into the mesh pockets. The middle panel also has an elastic band that crosses from one side of the pack to the other, with two additional elastic bands, one sewn from the bottom of the pack to the initial elastic band and the other sewn onto the middle panel and designed to fold downward and attach to the other bands by means of a hook and loop fastening system. The plates are held in place by means of the elastic bands.

Two pockets, sewn one onto the other, are sewn onto the exterior aspect of the front compartment. The pockets are approximately nine (9) inches high and eight (8) inches wide. The outer most pocket has a single zipper pull closure that closes left to right. The pocket located between the outer most pocket and the front panel has a double zipper pull closure that secures from the bottom of one side, across the top, to the bottom of the opposite side.

The rear compartment has no interior or exterior pockets or fittings. It has a zipper closure that begins approximately seven (7) inches from the top of the pack on both sides and crosses over the top. The closure has two pulls.

The bottle case is attached to the left side of the backpack extending twelve and one-half (12 ½) inches upward from the bottom. It is four and one-half (4 ½) inches in diameter and composed of the same material of which the picnic backpack is made. The bag is insulated with the one-fourth (1/4) inch thick “spongy” foam. The bottle bag attaches to the backpack by means of four plastic clips that are attached to the pack and the bag, two at the top of the bag and two at the bottom of the bag.

The picnic backpack has a handle sewn to the top of the pack. The handle is made of one and one-eighth (1 1/8) of an inch wide nylon webbing with a man-made textile cover sewn onto the nylon webbing. The nylon webbing that attaches the handle to the pack extends nine and one-half (9 ½) inches down both sides of the pack.

The pack also has two adjustable shoulder straps. The straps are two (2) inches wide. They are padded with one-fourth (1/4) of an 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. Each shoulder strap, at maximum extension, measures approximately thirty-three and one-half (33 ½) inches in length.

The adjustable aspect of the nylon webbing shoulder straps are one (1) inch wide and are attached to the lower aspects 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 extend 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 the backpack, bottle holder, four plastic plates, four plastic wineglasses, a plastic and metal corkscrew, knife and bottle opener combination, four sets of stainless steel and plastic flatware, two plastic salt and pepper shakers, a stainless steel and plastic peeling knife, four textile napkins and a textile tablecloth. The plates are nine (9) inches in diameter and fit into the mesh pocket that is located in the lower part of the middle panel in the front compartment. The plastic wineglasses are three (3) inches in diameter and seven and one-half (7 ½) inches tall. The flatware consists of four stainless steel and plastic knives, forks and spoons. The spoons are seven and three-fourths (7 ¾) inches long, the forks are eight (8) inches long, and the knives are eight and one-half (8 ½) inches long. The salt and pepper shakers are two and five-eighths (2 5/8) inches tall and one and three-fourths (1 ¾) inches wide. The stainless steel peeling knife with the plastic handle is eight (8) inches long. The napkins have hemmed edges and are fourteen (14) inches square. The tablecloth measures thirty-three inches square.

The country of origin of all the merchandise is stated to be Hong Kong.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the “picnic backpack” which includes the backpack, bottle holder, four plastic plates, four plastic wineglasses, a plastic and metal corkscrew, knife and bottle opener combination, four sets of stainless steel and plastic flatware, two plastic salt and pepper shakers, a stainless steel and plastic peeling knife, four textile napkins and a textile tablecloth ?

Do the backpack, bottle holder, four plastic plates, four plastic wineglasses, a plastic and metal corkscrew, knife and bottle opener combination, four sets of stainless steel and plastic flatware, two plastic salt and pepper shakers, a stainless steel and plastic peeling knife, four textile napkins and a textile tablecloth constitute “items in a set put up for retail sale” pursuant to General Rule of Interpretation 3 (b) resulting in their classification by the component which gives the set its essential character ?;

If the backpack, bottle holder, four plastic plates, four plastic wineglasses, a plastic and metal corkscrew, knife and bottle opener combination, four sets of stainless steel and plastic flatware, two plastic salt and pepper shakers, a stainless steel and plastic peeling knife, four textile napkins and a textile tablecloth constitute a set pursuant to General Rule of Interpretation 3 (b), what is the component of the set that gives the set its essential character for classification purposes ?; and

Does a “hang tag” on the backpack satisfy the marking requirements of 19 U.S.C. 1304, as implemented by Part 134 of Title 19 of the Code of Federal Regulations ?

LAW AND ANALYSIS

Classification

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, bottle holder, four plastic plates, four plastic wineglasses, a plastic and metal corkscrew, knife and bottle opener combination, four sets of stainless steel and plastic flatware, two plastic salt and pepper shakers, a stainless steel and plastic peeling knife, four textile napkins and a textile tablecloth in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 4202 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 or mainly covered with such materials or with paper. (Emphasis added).

Backpacks are designated eo nomine in heading 4202. Eo nomine designations include all forms of the article in issue.

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).

“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. See infra, dictionary definitions and Standard Surplus. 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.

A survey of dictionaries provides the following common 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); and

(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).

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 appears to be the manner in which the personal effects are transported.

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). Congress, by listing “knapsacks and backpacks” together, indicated an intent that knapsacks and backpacks should be understood together.

“Knapsack” is defined in The Oxford English Dictionary as “[a] bag or case of stout canvas or leather, worn by soldiers, 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 3, 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, 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 on the back during travel.

Customs has determined that the backpack of instant classification falls within the definition of “knapsacks and backpacks” in heading 4202, HTSUSA. It has the traditional shape of a small backpack and 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 appears designed to facilitate moving the pack only very short distances. The 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. Depending on how the pack is loaded, it may have a propensity to swing at an awkward angle if carried by the handle.

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 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 is 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 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. SGI is distinguishable from the facts of the instant ruling.

The Court in SGI, because it was called on to address the classification of merchandise that was not identified eo nomine in the tariff schedule, applied the ejusdem generis rule of statutory construction. See SGI at 1471. Application of the rule of ejusdem generis, which means “of the same kind,” involves a comparison of the items enumerated 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 decide 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. General Rule of Interpretation 1 fully resolves the classification of the picnic backpack, minus its contents.

The Customs Service is aware that some importers may advocate that the “picnic backpack,” particularly the backpack, is more than a travel or sports bag because of its insulated compartments. The basis for this position being the “more than” doctrine, a doctrine espoused 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 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 as a backpack in heading 4202, HTSUS.

Although the Customs Service specifically concludes that the “picnic backpack” is designated eo nomine in heading 4202, HTSUSA, reasoning that insulated compartment(s) do not preclude the item from being understood to be a “backpack,” Customs is apprised that the “more than” doctrine is not 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 superceded by the General Rules of Interpretation of the HTSUSA and does not apply to cases arising under the HTSUSA. 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.

Customs, based on the above reasoning, concludes that the backpack is properly classified in heading 4202, HTSUSA. Customs additionally concludes that the bottle case, designed to hold only a single bottle and designated eo nomine in heading 4202, HTSUSA, is also properly classified in heading 4202, HTSUSA. See HQ 962450 (Aug. 23, 1999), HQ 961681 (Sept. 28, 1998).

The plates, wineglasses, salt shaker and pepper shaker are classifiable in Chapter 39, Plastic and Articles Thereof.” Heading 3924, HTSUSA, provides for “[t]ableware, kitchenware, other household articles and toilet articles, of plastics.” See Explanatory Note 39.24.

The stainless steel and plastic knives, forks and spoons, the base metal and plastic corkscrew, knife and bottle-opener combination and the peeling knife are classifiable in Chapter 82, “Tools, Implements, Cutlery, Spoons and Forks, of Base Metal; Parts Thereof of Base Metal.” Heading 8211, HTSUSA, providing for “Knives with cutting blades, serrated or not (including pruning knives), other than knives of heading 8208 Heading 8208 provides for the classification of knives and cutting blades for machines or mechanical appliances.” encompasses the knives, as well as the corkscrew, knife and bottle-opener combination. The forks and spoons are provided for in heading 8215, HTSUSA, which includes “Spoons, forksand similar kitchen or tableware.” Heading 8215, HTSUSA. See generally Explanatory Note 82.11 and 82.15 (discussing the utensils 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 cotton fibers are classifiable in Chapter 63, “Other Made Up Textile Articles; Needlecraft Sets; Worn Clothing and Worn Textile Articles; Rags.” The heading that describes these articles is heading 6302, HTSUSA, which provides for “Bed linen, table linen, toilet linen and kitchen linen.” The Explanatory Notes that correspond to heading 6302, EN 63.02, indicate 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).

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, bottle holder, plates, wineglasses, corkscrew, knife and bottle opener combination, flatware, salt and pepper shakers, peeling knife, napkins and tablecloth are composed of man-made textile fibers, cotton fibers, plastic and metal 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 2 are to be classified according to GRI 3.

An examination of the dictates of GRI 3 is appropriate because the goods are prima facie classifiable under two or more headings: the backpack and bottle holder in heading 4202, HTSUSA, the plates, wineglasses and salt and pepper shakers in heading 3924, HTSUSA, the knives, corkscrew combination and peeling knife in heading 8211, HTSUSA, the forks and spoons in heading 8215, HTSUSA, and the napkins and tablecloth in heading 6302, HTSUSA. General Rule of Interpretation 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 items that comprise the “picnic backpack” 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.”

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).

The backpack, bottle holder, plates, wineglasses, corkscrew combination, flatware, salt and pepper shakers, peeling knife, napkins and tablecloth 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 items that comprise the “picnic backpack” as put up together “meet a particular need or carry out a specific activity.”

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 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 bottle holder, plates, wineglasses, corkscrew, knife and bottle opener combination, flatware, salt and pepper shakers, peeling knife, napkins and tablecloth. 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.

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 contains 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 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 all of the other items 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 makes it possible for the picnicker to carry all utensils, food, beverages and sundries long distances with relative ease. The backpack additionally provides storage for the other items when they are not in use. The fitted pockets of the pack keep the primary items organized during travel. The bottle holder, plates, wineglasses, corkscrew combination, flatware, salt and pepper shakers, peeling knife, napkins and tablecloth make it possible and simpler to serve the picnic meal. The backpack is a unique storing system, specifically designed to store and be used with all of the items that complete the “picnic backpack.” It is the conclusion of the Customs Service that the backpack, bottle holder, plates, wineglasses, corkscrew, knife and bottle opener combination, flatware, salt and pepper shakers, peeling knife, napkins and tablecloth as packaged for sale to the user, constitute a set as they carry out the specific activity of serving a picnic in a remote location.

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.” 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 has the indispensable role in this activity. 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).

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 consideration is classified in subheading 4202.92.3020, HTSUSA, as “knapsacks and backpacks: Other: 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.”

Marking

Section 1304 of the United States Code provides, with certain specifically delineated exceptions, that

[E]very article of foreign originimported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the articlewill permit in such manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article. 19 U.S.C. 1304 (West 1999 and Supp. 2001).

Customs Regulations Part 134, 19 C.F.R. 134, implements the Congressional mandate set forth in Section 1304. Section 134.1 (b) of Title 19 of the Code of Federal Regulations provides, in part, that the “Country of origin” of an article is “the country of manufacture, production, or growth of any article of foreign origin entering the United States.”

Correspondence of Aries International advises the Customs Service that the country of origin of each item that comprises the “picnic backpack” set is Hong Kong. Aires specifically requests a ruling addressing whether a “hang tag” on the outside of the backpack would meet Customs regulations or whether it is necessary to mark each individual item in the set.

Since each item that comprises the “picnic backpack” set is manufactured or produced in Hong Kong, a hand tag indicating that Hong Kong is the country of origin would satisfy Customs Regulations provided the tag also meets the requirements of 19 C.F.R. 134.44 (c). Section 134.44 (c) requires that the tags “must be attached in a conspicuous place and in a manner which assures that unless deliberately removed they will remain on the article until it reaches the ultimate consumer.”

HOLDING

The backpack, plates, cups, knives, forks and spoons 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 backpacks : Other: 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 General Column 1 Rate of Duty is eighteen and three-tenths (18.3) percent, ad valorem.

The textile quota category is 670.

The tablecloth and napkins, although part of the set for duty purposes, are classified for quota purposes in subheading 6302.51.2000, HTSUSA. The textile quota category for the tablecloth and napkins is 369.

It is recommended that Foxrun Craftsmen 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 Foxrun Craftsmen 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.

The items that comprise the “picnic backpack” need not be individually marked. A “hang tag” that is attached to the backpack in a conspicuous place and in a manner that assures that it will remain on the backpack until it reaches the ultimate consumer, unless deliberately removed, meets the marking requirements of Part 134 of Customs Regulations.

Sincerely,

John Durant, Director
Commercial Rulings Division

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See also:

• 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.: 6302.51.20 - Plain woven tablecloths and napkins, not knitted or crocheted, of cotton