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HQ 965875

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January 17, 2003

CLA-2 RR:CR:TE 965875 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.3020

Paula M. Connelly, Esq.
Middleton & Shrull
44 Mall Road
Suite 208
Burlington, Massachusetts
01803-4530

RE: Revocation of NY I84912 (Aug. 9, 2002); Insulated or Padded Backpack; Subheading 4202.92.3020, HTSUSA.

Dear Ms. Connelly:

The purpose of this correspondence is to respond to your request dated September 4, 2002. The correspondence in issue requested, on the behalf of your client, The GEM Group, Inc., reconsideration of New York Ruling Letter I84912 (Aug. 9, 2002).

The Customs Service, in NY I84912, classified the merchandise in issue in subheading 4202.92.9026, HTSUSA. Customs has determined, subsequent to reconsidering NY I84912, that the article is properly classified in subheading 4202.92.3020, HTSUSA. Customs is revoking NY I84912 and reclassifying the merchandise in accordance with the analysis set forth in this ruling letter.

This reconsideration and revocation is being issued subsequent to the following: (1) A review of your submissions dated September 4, 2002, and January 3, 2003; (2) An examination of the sample identified by the importer as a Gemline “Insulated Backpack,” style MS-SS-9186; (3) A review of the 2002 Gemline catalog; (4) A review of the “Insulated Bags” section of the 2003 Gemline catalog; and (5) An examination of a hand-drawn front and back diagram of the backpack dated August 27, 2002.

Pursuant to section 625 (c), Tariff Act of 1930, as amended (19 U.S.C. 1625 (c)), notice of the proposed revocation of NY I84912 was published on December 4, 2002, in the Customs Bulletin, Volume 36, Number 49.

FACTS

The article in issue, identified by GEM as an “insulated backpack,” is approximately seventeen (17) inches in height, eleven (11) inches in width and five and three-fourths (5 ¾) inches in depth. The Customs Service is advised that the outer surface is composed of nylon textile fabric which an examination reveals to be woven. Customs further examination establishes that the article has a middle layer of plastic foam that is one-fourth (1/4) of an inch thick.

The backpack has one primary compartment with dimensions nearly equal to those of the entire pack. The backpack also has two flat compartments on the front that close by means of vertical zippers. A nylon mesh bottle holder is located on the lower aspect of one side of the pack.

The backpack has a carrying handle sewn to the top, rear aspect of the pack and also has two adjustable shoulder straps. The handle and adjustable or lower aspects of the shoulder straps are made of one (1) inch wide woven nylon webbing. The handle is eight and one-half (8 ½) inches long. The upper aspects of the shoulder straps are two (2) inches wide and have padding composed of the same material as found between the layers of nylon fabric, i.e., the one-fourth (1/4) of an inch thick 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 complete shoulder strap, at maximum extension, measures approximately thirty-five (35) inches in length.

The adjustable aspects of the woven nylon webbing shoulder straps are sewn to two triangular-shaped pieces of material, one on each side of the lower body of the backpack. The triangular-shaped pieces of material extend one and one-half (1 ½) inches from the side of the backpack to the tip of the triangle.

ISSUE

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the above-described insulated or padded backpack ?

LAW AND ANALYSIS

The federal agency responsible for initially interpreting and applying the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is the U.S. Customs Service.

See 19 U.S.C. 1500 (West 1999) (providing that the Customs Service is responsible for fixing the final appraisement, classification and amount of duty to be paid); See also 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. General Rule of Interpretation 1 further states that merchandise which cannot be classified in accordance with the dictates of GRI 1 should be classified pursuant to the other General Rules of Interpretation, provided the HTSUSA chapter headings or notes do not require otherwise. According to the Explanatory Notes (EN), the phrase in GRI 1, “provided such headings or notes do not otherwise require,” is intended to “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 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. 3d 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the GEM backpack, in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. Heading 4202, HTSUSA, provides for the classification of:

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, insulated food or beverage 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).

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 article submitted for classification by GEM 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 (Ct. Int’l Trade 1996) citing Trans-Border Customs Services v. United States, 843 F. Supp. 1482, 1485 (Ct. Int’l Trade 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. 3d 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. A “backpack” is commonly understood to be a pack or knapsack worn on the back and used to carry personal effects which include equipment, clothing and food. 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’s intent without additional explanation.

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

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

“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);

“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 worn on the back and used to carry personal effects which include equipment, clothing and food. 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 in 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 worn on the back and used to carry personal effects, including equipment, clothing and food. 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 decision of Customs that the instant backpack 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 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 rear aspect of the top, common among many backpacks, the handle is only designed to facilitate moving the pack very short distances. The padded shoulder straps and the adjustable nylon webbing aspect enable the backpack and its contents to be transported longer distances. It is additionally noted that, depending on how the pack is loaded, it could have a strong propensity to swing at an awkward angle if carried by the handle.

The simple innovation of providing insulation or padding to the body of the bag does not change the identity of this item as a backpack. See HQ 963377 (July 10, 2001); and HQ 964539 (Nov. 21, 2001). An eo nomine designation in the tariff schedule, without limitation or a showing of contrary congressional intent, includes all forms of the article. See Robert Bosch Corp. v. United States, 63 Cust. Ct. 96 (1969); Nootka Packing Co. v. United States, 22 C.C.P.A. 464, T.D. 47646 (1935).

The terms of heading 4202, HTSUSA, specifically identify the article in issue. No other HTSUSA heading nor any other eo nomine designation within heading 4202, HTSUS, specifically describes the merchandise. The backpack presented by GEM is, therefore, classified in heading 4202, HTSUSA.

Continuing the classification of the GEM backpack, the article is classified in subheading 4202.92.3020, HTSUSA. Subheading 4202.92.3020, HTSUSA, provides for:

Trunks, suitcases, vanity cases, attache casesand similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacksand 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:

Other:
With 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.

Counsel for GEM suggests that the backpack is an insulated “food and beverage bag” also classified in heading 4202, HTSUSA. The Customs Service, for the reasons expressed above, concludes otherwise. Customs particularly notes that while an insulated backpack and an insulated food and beverage bag may both be used to maintain the temperature of food and beverage during transport and temporary storage, the distinctive feature of a backpack is the manner in which the personal effects are carried. The unique feature of an insulated backpack that distinguishes it from a food and beverage bag is the fact that it is designed to be carried on the back of the user. The padded and adjustable shoulder straps suggest an item that will be used to transport personal effects over a greater distance than one would expect of an insulated food or beverage bag.

The Customs Service additionally notes the absence of information and features generally expected to be found in insulated food and beverage bags. The GEM backpack does have plastic foam between the inner and outer layers of nylon fabric and counsel does suggest that the plastic foam serves the purpose of insulation. Customs notes, however, that the plastic foam may function not only as insulation, but also as padding. Customs notes that the shoulder straps are padded with the identical plastic foam used in the body of the bag. Customs examination of the backpack does not confirm that the purpose of the plastic foam is to provide an insulative quality to maintain the temperature of food or beverages. The padding does provide the pack with shape and Customs will not speculate as to its primary purpose. GEM has provided no information addressing the ability of the plastic foam to perform as an insulator.

A feature often found in portable containers designed to maintain the temperature of food and beverages is a plastic coating or lining. GEM has not advised Customs of a coating on the nylon, which, if one does exist, would not appear to be able to prevent melting ice or condensation from seeping through the fabric. It is doubtful that the seams, which are only sewn and not heat-sealed, would prevent leakage. The backpack, as presented to Customs for classification, also lacks a permanent or removable liner that would serve to prevent leakage. See HQ 964237 (May 22, 2002).

Counsel for the importer suggests that reference be made to the tag attached to the sample article, as well as to the Gemline 2002 catalog to confirm that the article will be marketed as a container intended to maintain the temperature of food and beverages during travel and temporary storage. Customs finds it is not necessary to resort to marketing information to determine the identity of the backpack. It is further noted that the bag was specifically claimed by GEM to be a sample, not an article in production, that the tag noted “Insulated Backpack,” but the notation was hand-written, and that the catalogue did not include the article in issue. Although GEM advised Customs of the part of the catalogue into which this article would be included in future editions, this office found the reference to be vague and of no evidentiary value.

This office also finds little value in the hand-drawn sketch of the backpack. The sample displays all of the information contained in the drawing. Customs notes, however, that the shoulder straps in the drawing are contoured, but the padded straps on the sample are straight.

Counsel’s comments of January 2003 submitted in response to the notice of proposed revocation included that aspect of the Gemline 2003 catalog that contained “Insulated Bags.” Although the backpack in issue was represented in the 2003 catalog, Customs, as previously addressed, does not believe that it is appropriate or necessary to resort to Mast Industries criteria to classify this article. See Mast Industries, Inc. v. United States, 9 C.I.T. 549 (Ct. Int’l Trade 1985), aff’d, 786 F.2d 1144 (Fed. Cir. 1986).

Customs initially classified the GEM insulated or padded backpack in subheading 4202.92.9026, HTSUSA. It is the determination of this office, subsequent to further review, that the backpack is properly classified in subheading 4202.92.3020, HTSUSA.

HOLDING

New York Ruling Letter I84912 (Aug. 9, 2002) is, hereby, revoked.

The GEM Group, Inc. backpack, style MS-SS-9186, is classified in subheading 4202.92.3020, Harmonized Tariff Schedule of the United States Annotated.

The General Column 1 Rate of Duty is eighteen and one-tenth (18.1) percent, ad valorem.

The textile quota category is 670.

There are no applicable quota/visa requirements for products of World Trade Organization (WTO) member-countries. The textile category number above applies to merchandise produced in countries that are not members of the WTO.

The designated textile and apparel category may be subdivided into parts. If subdivided, any quota and visa requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels) an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs Service office. The Status Report On Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Web site at www.customs.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

This ruling, in accordance with 19 U.S.C. 1625 (c), will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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See also:

• Tariff No.: 4202.92.30 - Travel, sports and similar bags with outer surface of textile materials other than of vegetable fibers
• Tariff No.: 4202.92.90 - Bags, cases and similar containers nesi, with outer surface of plastic sheeting or of textile materials, excl. cotton