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HQ 966389




May 27, 2003

CLA-2 RR:CR:TE 966389 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

Port Director
Bureau of Customs and Border Protection
4735 Oakland Street
Denver, Colorado 80239-0335

RE: Decision on Application for Further Review of Protest 3307-03-100007; Classification of a picnic backpack; HQ 964539, HQ 963839, HQ 963860, HQ 964540, HQ 963377, HQ 962643, HQ 963378.

Dear Port Director:

This is a decision on the Application for Further Review (AFR) of Protest Number 3307-03-100007 filed by Serko & Simon LLP on behalf of Books Are Fun, Ltd., concerning the classification of an article described as “picnic backpack green” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The importer protests the liquidation of the subject merchandise under subheading 4202.92.4500, HTSUSA, as travel, sports and similar bags.

The subject merchandise was liquidated as entered by the importer under subheading 4202.92.4500, HTSUA. In written submissions and in a telephone conference between members of my staff and counsel for the protestant on May 21, 2003, the protestant claims the picnic backpack is classifiable as an insulated food or beverage bag under subheading 4202.92.1000, HTSUSA.

FACTS:

The article at issue is identified as a “picnic backpack green, item # 30661”. The article measures approximately 16 inches in height by 12 inches in width by 7 inches in depth. The exterior surface is said to be composed of PVC plastic that has been embossed to look like a textile surface. The interior backing is a woven fabric. The subject bag features two large interior zippered compartments with a smaller single zippered pocket on the outer surface and detachable single exterior bottle bag. You have referred to the two large compartments as the “rear main compartment” and the “front compartment.” We will use this terminology for ease of reference only.

The outer walls of the bag, the wall separating the rear main and front compartments and the bottle bag are insulated with 3/8 inch thick foamed plastic. The single zippered pocket on the outer front surface is not insulated.

The rear main compartment is lined with plastic and is intended for storage of food and beverages. The front compartment is fitted with elastic straps to contain a plastic table cloth, 4 place settings of plastic and metal forks, knives, and spoons, plastic wine glasses, textile napkins and plastic plates, wooden salt and pepper shakers, a plastic and metal cheese knife, wooden cutting board, and a multi-function tool consisting of a bottle opener, corkscrew, and serrated blade. The sewn seams are plastic capped to prevent leakage of moisture.

The bag has a handle sewn to the top, rear aspect of the bag and two adjustable shoulder straps. Plastic clips permanently affixed to the bottom aspect of the shoulder straps allow the user to adjust the shoulder strap length.

ISSUE:

What is the classification of the “picnic backpack green” under the Harmonized Tariff Schedule of the United States Annotated?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings.

The classification of “picnic backpacks” imported with multiple picnic-related components has been the subject of numerous rulings by Customs (now the Bureau of Customs and Border Protection (CBP)). In each of the rulings it was determined that the main insulated container constituted a backpack which imparted the essential character of each multiple component set. See Headquarters Ruling Letter (HQ) 964539 (dated November 21, 2001), HQ 963839 (dated September 21, 2001), HQ 963860 (dated July 30, 2001), HQ 964540 (dated July 27, 2001), HQ 963377 (dated July 10, 2001), HQ 962643 (dated July 9, 2001), and HQ 963378 (dated June 22, 2001).

We note that the protestant has presented three essential arguments in support of their position to wit: (1) the principal use of the picnic backpack is to maintain temperature of food and beverages during transport; (2) the principal use of the picnic backpack as a means of maintaining temperature controls the eo nominee provision for backpacks; and (3) the picnic backpack is distinguishable from the article at issue in HQ 965875 (dated January 17, 2003).

Protestant asserts that the insulation in the picnic backpack that allows it to maintain the temperature of the food contained therein imparts the merchandise’s essential character. GRI 3(b) provides in pertinent part that:

“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.” [Emphasis added].

We have determined that the essential character of the picnic backpack is imparted by the backpack component, whose principal use is NOT to maintain the temperature of food and beverages. Most consumers are likely to purchase the picnic backpack not only for the ability of one main compartment to maintain temperature but also for the other main compartment and pockets which provide additional storage space to organize and protect various personal effects including the tableware and other picnic related items with which the backpack is imported, and other items suitable for the occasion of the user’s preference. Mobility is an additional key factor consumers will consider in purchasing the picnic backpack. The unique design of the picnic backpack allows the consumer to combine the ability to maintain the temperature of food and beverages with the added capability to transport these and additional personal effects on the back, allowing the consumer to move the arms freely. Moreover, while the design of the picnic backpack lends itself, in part, to the storage of food and beverages, the picnic backpack’s usefulness is much broader than maintaining the temperature of such personal effects. The complete article’s ability to organize, store, protect and carry a large quantity and variety of items override the use of one insulated compartment to maintain the temperature of food stuffs.

In accordance with protestant’s contention that the merchandise is an insulated food or beverage bag, protestant alleges that subheading 4202.92.1000 should prevail over the eo nominee provision of subheading 4202.92.4500.

The general rule of Customs jurisprudence is that, “'in the absence of legislative intent to the contrary, a product described by both a use provision and an eo nomine provision is generally more specifically provided for under the use provision.'" United States v. Orlando, 140 F.3d 1437,1441 (1998) (quoting United States v. Siemens Am., Inc., 68 C.C.P.A. 62, 653 F.2d 471, 477 (1981). However, this rule is not obligatory and only provides a "'convenient rule of thumb for resolving issues where the competing provisions are in balance [i.e., equally descriptive].'" United States v. Carl Zeiss, 195 F.3d at 1380 (1999) (quoting Seimens Am., 653 F.2d at 478 n.6); see also Totes, Inc. v. United States, 69 F.3d 495, 500 (Fed. Cir. 1995).

Even though a use provision is usually more specific than an eo nomine provision, we decline to apply that “rule of thumb” to the instant case because the competing subheadings do not "equally describe" the merchandise at issue. See analysis supra.

Protestant contends that the merchandise at issue is distinguishable from that which was the subject of HQ 965875 (dated January 17, 2003). In HQ 965875, we determined that an “insulated backpack” was properly classifiable under subheading 4202.92.3020, HTSUSA. In so doing we stated in relevant part:

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).

Protestant points to the following distinguishing features of its item: “the plastic foam insulation is of a thickness and density designed specifically to perform as an insulator not merely padding; the plastic lined rear insulated compartment is designed to add to temperature control and to prevent melting ice or condensation from seeping through the bag; the plastic capped seams prevent leakage; the insulated bottle holder additionally provides a cooling function; and the hang tag refers to the item’s insulating features.”

As previously addressed, while the picnic backpack features one compartment designed to maintain temperature, its ability to store food and beverage items is secondary to its primary purpose to organize, store, protect and carry various personal effects other than or in addition to food or beverages. Therefore the article is properly classified in subheading 4202.92.4500, HTSUSA.

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 wine glasses, stainless steel cheese knife, wood cutting board, wood salt and pepper shakers 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 green” identified by item number 30661 is classified in subheading 4202.92.4500, HTSUSA, the provision for “knapsacks and backpacksOther: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: Other.” The General Column 1 Rate of Duty is twenty (20) percent, ad valorem.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision.

No later than sixty (60) days from the date of this decision, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other means of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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