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HQ 963860

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July 30, 2001

CLA-2-RR:CR:TE 963860 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3020

Mr. Barry Hartman
Amsterdam Printing & Litho
Wallins Corners Road
Amsterdam, New York 12010

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. Hartman:

The purpose of this correspondence is to respond to your request of March 3, 2000, addressed to the National Commodity Specialist Division of the Customs Service. The correspondence in issue requested a binding classification ruling of the merchandise described as a “picnic backpack.” A tag temporarily attached to the sample identifies it as “256#” and “OH 215-4.”

This ruling is being issued subsequent to the following: (1) A review of your submission dated March 3, 2000; and (2) An examination of the sample submitted with your request.

The Customs Service will retain the sample.

FACTS

The article in issue, identified by Amsterdam as a “picnic backpack,” measures approximately seventeen (17) inches in height and thirteen (13) inches in width. The exterior of the article is composed of a man-made textile fiber that is coated or covered with polyvinyl chloride that does not obscure the fabric. The interior compartments of the backpack are constructed of nylon. The picnic backpack has two primary interior compartments, two exterior pockets in the front and a detachable bottle case or holder on one side of the backpack. One of the pockets in the front is a simple triangular-shaped pocket composed of nylon mesh that secures closed through the use of a zipper. The other front pocket measures approximately twelve and one-half (12 ½) inches in height and ten and one-half (10 ½) inches in width. It secures closed through the uses of a wrap-around zipper with two zipper pulls. Three additional pockets, two that close with zippers and one that secures closed through the use of hook and loop fasteners, are found inside the larger front, exterior pocket.

The picnic backpack has two primary compartments, one in the front and one in the rear. The front and back panels and the interior middle panel between the front and back compartments are lined with a one-eighth (1/8) of an inch thick dense plastic foam believed to be polyethylene. The sides of the front and back compartments are lined with a one-fourth (1/4) of an inch thick “spongy” plastic foam. 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 six (6) inches deep. The front compartment has a full wrap-around zipper closure that extends from the bottom of one side, over the top of the pack and then down the opposite side. The closure has two zipper pulls. When fully opened, the front or flap aspect of the front compartment opens outward at a ninety degree angle to the ground.

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, that aspect of the pack that opens outward, consists of two pockets that are approximately two (2) inches wide, one of nylon and the other of nylon mesh, a nylon pocket at the top of the flap that measures ten (10) inches wide and four (4) inches deep and a nylon mesh pocket that is as wide as the pack and measures six and one-half (6 ½) inches deep, with a one inch wide elastic band with a hook and loop fastener system on the band.

The fittings on the inside of the middle panel consist of thirteen nylon pockets approximately one and one-fourth (1¼) of an inch wide by two (2) inches deep with thirteen elastic bands approximately one (1) inch wide located one inch above the nylon pockets. Flatware, consisting of knives, forks and spoons, slides past the elastic band and into the nylon pockets. Four one and one-half (1 ½) inch wide elastic bands are sewn onto the middle panel. The elastic bands are designed to retain plastic wineglasses.

The rear compartment has no interior or exterior pockets or fittings. It has a zipper closure that begins approximately three and one-half (3 ½) inches from the bottom of each side of the pack and crosses over the top. The closure has two pulls.

The bottle case is attached to the left side of the backpack, when facing the pack. It extends twelve and one-half (12 ½) inches upward from the bottom of the backpack. It is six and one-half (6 ½) inches in diameter and composed of the same man-made textile material coated or covered with plastic of which the picnic backpack is made. The bag is insulated with the one-fourth (1/4) of an inch thick “spongy” foam. The bottle bag attaches to the backpack by means of a plastic clip and two separate hook and loop fastener systems that are attached to the pack and the bottle case.

The picnic backpack has a handle sewn to the top of the pack. It is sewn onto the top of the back compartment. The handle is made of seven-eighths (7/8) of an inch wide nylon webbing with a plastic cover sewn over the nylon webbing.

The pack also has two adjustable shoulder straps. The straps are two and one-fourth (2 ¼) inches wide. They are padded with the same one-fourth (1/4) of an inch thick dense polyethylene plastic foam that is used in the front and rear panels. 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-seven (37) inches in length.

The adjustable 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 and the sample included the backpack, a detachable bottle case or holder, four plastic plates, four sets of stainless steel and plastic flatware, each set consisting of a knife, fork and spoon, four plastic wineglasses, a stainless steel cutting knife, a plastic cutting board and a metal and plastic corkscrew, knife and bottle-opener combination. The plates are nine (9) inches in diameter and fit into the mesh pocket that is located in the lower part of the front panel in the front compartment. The plastic wineglasses are two and one-half (2 ½) inches in diameter and five and one-half (5 ½) inches tall. The flatware consists of four stainless steel and plastic knives, forks and spoons. The forks and spoons are seven and three-fourths (7 ¾) inches long and the knives are eight and one-fourth (8 ¼) inches long. The stainless steel cutting knife is eight and three-fourths (8 ¾) inches long. The cutting board is nine and three-fourths (9 ¾) inches long by six (6) inches wide. The corkscrew, knife and bottle-opener is four and one-fourth (4 ¼) inches long when collapsed.

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, bottle case plastic plates, stainless steel and plastic knives, forks and spoons, plastic wineglasses, stainless steel cutting knife, plastic cutting board and a metal and plastic corkscrew, knife and bottle-opener combination ?

Do the backpack, bottle case, plastic plates, stainless steel and plastic knives, forks and spoons, plastic wineglasses, stainless steel cutting knife, plastic cutting board and the metal and plastic corkscrew, knife and bottle-opener combination 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 ?; and

If the backpack, bottle case, plastic plates, stainless steel and plastic knives, forks and spoons, plastic wineglasses, stainless steel cutting knife, plastic cutting board and the metal and plastic corkscrew, knife and bottle-opener combination constitute a set pursuant to General Rule of Interpretation 3 (b), 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); See generally, What Every Member of The Trade Community Should Know About: Tariff Classification, 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 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 3, 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 case, plastic plates, stainless steel and plastic knives, forks and spoons, plastic wineglasses, stainless steel cutting knife, plastic cutting board and the metal and plastic corkscrew, knife and bottle-opener combination, 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 of mainly covered with such materials or with paper. (Emphasis added).

Backpacks are designated eo nomine in heading 4202, HTSUSA. 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 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 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. 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.

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 compartments 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 plastic plates, wineglasses and cutting board 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 generally Explanatory Note 39.24 (discussing tableware, kitchenware and other household articles made of plastic).

The stainless steel and plastic knives, stainless steel and plastic forks and spoons, base metal and plastic corkscrew, knife and bottle-opener combination and the stainless steel cutting knife 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, as well as the corkscrew, knife and bottle-opener combination, 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. 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 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).

A review of GRI 2 leads the Customs Service to the conclusion that its provisions will not prove beneficial in classifying all of 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 case, plates, knives, forks and spoons, wineglasses, cutting board and corkscrew, knife and bottle-opener combination are composed of a man-made textile fiber coated or covered with polyvinyl chloride, nylon, plastic, plastic foam, stainless steel and a base 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 case in heading 4202, HTSUSA, the plates, wineglasses and cutting board in heading 3924, HTSUSA, the knives and corkscrew, knife and bottle-opener combination in heading 8211, HTSUSA, and the forks and spoons in heading 8215, 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 backpack and accompanying items 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 case, plastic plates, stainless steel and plastic knives, forks and spoons, plastic wineglasses, stainless steel cutting knife, plastic cutting board and the metal and plastic corkscrew, knife and bottle-opener combination 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 backpack and the accompanying items as put up together “meet a particular need or carry out a specific activity.” Id.

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 case, plates, knives, forks and spoons, wineglasses, cutting knife, cutting board and the corkscrew, knife and bottle-opener combination. 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) (tool box 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 bottle case, plates, knives, forks and spoons, wineglasses, cutting knife, cutting board and the corkscrew, knife and bottle-opener combination 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 the bottle case and 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 case, plates, wineglasses, knives, forks and spoons, cutting board and corkscrew, knife and bottle-opener combination 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 other items. The pockets sewn into the inside of the front panel are precisely designed to hold the plates, cutting board and corkscrew, knife and bottle-opener combination. The pockets and elastic bands sewn into the middle panel in the front compartment are designed to hold the knives, forks, spoons and the wineglasses. It is the conclusion of the Customs Service that the backpack, bottle case, plastic plates, stainless steel and plastic knives, forks and spoons, plastic wineglasses, stainless steel cutting knife, plastic cutting board and the metal and plastic corkscrew, knife and bottle-opener combination, 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 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 “picnic backpack” at the appropriate subheading level. The backpack of instant consideration is classified in subheading 4202.92.3020, HTSUSA, as a “backpack and knapsackWith 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.”

HOLDING

The backpack, bottle case, four plastic plates, four sets of stainless steel and plastic flatware, each set consisting of a knife, fork and spoon, four plastic wineglasses, stainless steel cutting knife, plastic cutting board and the metal and plastic corkscrew, knife and bottle-opener combination 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, as a “backpack and knapsackWith 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 twenty (20) percent, ad valorem.

The textile quota category is 670.

It is recommended that Amsterdam Printing & Litho 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 Amsterdam Printing & Litho 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.: 3924.10.50 - 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