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NY I82207




June 13, 2002

CLA-2-42:RR:NC:3:341 I82207

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3020

Mr. Lawrence R. Pilon
Hodes Keating & Pilon
39 south La Salle Street Suite 1020
Chicago, Illinois 60603-1731

RE: The tariff classification of backpack with audio/visual alarm from China or Taiwan

Dear Mr. Pilon:

In your letter dated May 28 2002 you requested a tariff classification ruling. The request is on behalf of the product manufacturer, Professional Security Corporation.

A sample of a standard backpack has been submitted. The sample is identified as United States Patent number 6,130,616 (October 10, 2000), “ Personal Security Backpack”, AKA “Guardian Backpack”. The inventor and owner of the patent is Mr. Edric Sizemore. The product is marketed by EDCO Innovations, Inc. of which Mr. Sizemore is the President. It is part of the EDCO “Guardian Backpacks” product line. The sample is being returned as requested.

The article consists of a standard full sized backpack manufactured of man-made fiber textile materials. The front of the bag is embroidered “Guardian Backpacks” The bag body is almost wholly of 100 percent nylon fiber canvas fabric while the back is of a smooth fabric. The bag measures approximately 20” H x 13” W x 5”D. It is described as a “child’s” backpack, however it is a full size backpack of the kind normally carried by a young adult or older person. The backpack has one main zippered compartment equal to the full size of the bag. The front has a zippered pouch approximately 8 1/2”H x 71/2”W x 2” D and a zippered security pocket approximately 6 ½”x 8”. It has padded adjustable shoulder straps and the back portion that rests on the back is padded. All backpacks are similarly designed.

The front zippered pouch has been adapted to hold a battery operated electronic audio/visual signaling device. The device is inserted into the pouch and can be removed only as far as the electronic control cord will permit. The cord is threaded through the bottom of the pouch and within one shoulder strap to a point wherein the “trigger” protrudes. The device is not designed to be removable; rather it is an integral part of the backpack. However, it can be removed by cutting the wire cord and removing the device from the pocket. If removed, the backpack remains a fully functional pack. The alarm is activated by pulling a pin from the “trigger” and is de-activated by re-inserting the pin. The alarm system is intended to be used only if a personal emergency occurs.. The backpack is used on a daily basis to contain clothing or other personal effects during travel.

The EDCO Innovations Internet WEB site offers three varieties of the “Guardian Backpacks”. It reflects two leather and one nylon backpack. The submitted sample is most similar to style CN003, Nylon Backpack.

The General Rules of Interpretation (GRI’s) governs classification of merchandise under the HTSUSA. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's.

As evidenced by the enumerated exemplars listed supra, heading 4202, HTSUSA, provides for a vast array of bags cases and containers designed to store, protect and transport a variety of personal effects and other articles. A ‘backpack” is an eo nomine article of heading 4202. The instant bag is designed to provide storage, protection, organization and portability for clothing and other personal effects, including the alarm, during travel. The backpack is of a kind classified within subheading 4202.92.3020, travel, sport and similar bags, with outer surface of textile materials, backpacks, of man-made fibers.

You have indicated that the subject merchandise is primarily an audio/visual signaling apparatus and is classified as an electric sound or visual signaling apparatus, other, other within subheading 8531.80.0050, HTSUSA. Your position is predicated upon the application of GRI 3(b) and a finding that the audio/visual device imparts the essential character. Failing a finding of essential character, you suggest classification within heading 8531 as provided by GRI 3(c).

GRI 3(a) states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

"(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.”

In this instance, headings 4202 and 8531, HTSUS, are equally specific in relation to one another. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b) that reads:

“(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets
for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”

Explanatory Note (EN) VIII to GRI 3(b) states:

“[T]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.”

In situations where articles of 4202, HTSUSA, incorporate electrical devices into their design, Customs has consistently held that it is the 4202 component which imparts the essential character to the article as a whole. See HQ’s 965009, February 22, 1996, 087057, dated December 21, 1989; 089901, dated April 2, 1992 and 955261, dated April 14, 1994 and NY RL’s 841628, June 6, 1989 and 853347, July 3, 1990. In each of these cases, the article involved a fully functional carry case or bag of heading 4202, HTSUSA, and a complete electronic device. Similarly, in this instance, this office is of the opinion that it is the backpack that imparts the essential character to the article. A consumer’s motivating impetus to purchase this article is the need or desire for a traveling bag that can store, protect and transport clothing and other personal effects, including the device, during travel. The fact that this backpack can also carry an alarm device makes the backpack distinctive and more attractive to some, however it is difficult to imagine a situation where a consumer would purchase this article for use solely as an alarm.. By incorporating the alarm system into the body of the bag, the inventor has simply added an additional convenience to an otherwise functional backpack.. If the user primarily desired a personal alarm system, a similar device can be separately purchased and placed in the pocket of any traveling bag. The essential character of the “Guardian Backpack” is imparted by the 4202, HTSUSA, component and classification is therefore proper under subheading 4202, HTSUSA.

The applicable subheading for the “Personal Security Backpack” AKA “Guardian Backpacks”, Patent number 6,130,616, will be 4202.92.3020, Harmonized Tariff Schedule of the United States (HTS), which provides for travel, sport and similar bags, with outer surface of textile materials, other, of man-made fibers, backpacks. The rate of duty will be 18.1 percent ad valorem.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Kevin Gorman at 646-733-3041.

Sincerely,

Robert B. Swierupski
Director,

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