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HQ 962643

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July 9, 2001

CLA-2-RR:CR:TE 962643 jsj

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.4500

Ms. Barbara Y. Wierbicki
Tompkins & Davidson, L.L.P.
One Astor Plaza
1515 Broadway
New York, New York 10036-8901

RE:Reconsideration of NY D87672; Picnic Backpack; General Rules of Interpretation 1 and 3; Sets; “More Than” Doctrine; JVC Company of America v. United States.

Dear Ms. Wierbicki:

The purpose of this correspondence is to respond to your request of March 11, 1999, on behalf of you client, Avon Products, Inc. (Avon) for reconsideration of New York Ruling Letter (NY) D87672 (Feb. 23, 1999).

This reconsideration is being issued subsequent to the following: (1) A review of your submission dated March 11, 1999; (2) A review of the Product Specifications and Advertising Literature submitted to the Customs Service National Import Specialist in correspondence dated April 22, 1999; (3) A conference conducted at the Customs Service Headquarters on April 6, 2001, at which Avon was represented by counsel; (4) A review of your submission dated June 6, 2001; and (5) A review of the May 31, 2001 report of James P. Harrington

It is noted that Mr. Harrington’s report was not accompanied by a curriculum vita establishing his qualifications..

A sample of the merchandise was also examined. The sample will be retained by the Customs Service.

FACTS

The article in issue, identified as a “picnic backpack,” has the traditional shape of a small backpack. The sides are of equal size and the base is slightly wider than the top. The article measures approximately fourteen and one-half (14 ½) inches in height, ten and one-half (10 ½) inches in width at the base, and eight and one-half (8 ½) inches in width at the top.

The picnic backpack has two compartments, one that encompasses the entire front of the article and one that encompasses the entire back of the article. The compartments measure approximately seven (7) inches deep when both are fully extended. The front compartment measures approximately two and one-half (2 ½) inches deep and the rear compartment measures approximately four and one-half (4 ½) inches deep. The compartments close through the use of wrap-around zippers.

The front compartment has four pockets sewn into the inside front aspect of the backpack, one pocket sewn into the center panel of the backpack and a one (1) inch wide elastic band that spans from one side of the article to the other across the center panel of the backpack. The four pockets sewn into the front panel are seven and one-half (7 ½) inches deep and are designed to hold four plastic knives, forks, spoons and cups, respectively. The pocket sewn into the center panel is as wide as the backpack and measures approximately seven and one-half (7 ½) inches deep. The elastic band is sewn three and one-half (3 ½) inches from the bottom.

The rear compartment has no interior pockets or elastic bands. It is not fitted to carry any particular items.

The picnic backpack, according to product specification number: 180907-S2, revised: November 24, 1998, is composed of polyvinyl chloride (PVC), nylon and polyethylene (PE). A submission of counsel and a visual inspection establishes that the majority of the item, five of the six exterior aspects of the item, the top, bottom, front and both sides, are composed of compact polyvinyl chloride. The PVC is reinforced with a nylon backing.

The exterior surface of the back of the picnic backpack, the fitted pockets in the front compartment and the shoulder strap webbing are made of nylon. All other parts of the backpack are composed of PVC plastic with a textile backing. The product specification information and a visual examination of the nylon back, the front compartment pockets and the shoulder strap webbing does not indicate that they are coated or covered with any material.

The pocket sewn into the center panel in the front compartment is made of polyvinyl chloride. The interior aspect of the rear compartment is composed entirely of polyvinyl chloride.

The front and rear panels are insulated with one-eighth (1/8) inch thick polyethylene “foam.” The middle panel and the gussets are insulated with one-fourth (1/4) inch thick “spongy” polyethylene. No information prepared by the manufacturer addressing the article’s insulative properties was provided A report prepared by James P. Harrington, advised by counsel for Avon to be an expert in plastics engineering, suggests that “[a] typical use” for the plastic foam insulation in the picnic backpack “ is for short-term (1 to 4 hours) storage of food.” The report continues by advising that “[c]ertainly [the plastic foam] would provide more insulation than the frequently used cardboard stiffeners.” Harrington Rpt. p. 2. The report did not offer information suggesting that the insulative properties of the picnic backpack were similar to those of both hard and soft-sided insulated coolers.. The rigid nature of the polyethylene foam in the front and rear panels offers the backpack structural stability, in addition to any insulative quality.

The article has a handle sewn to the top, rear aspect of the pack and two adjustable nylon shoulder straps, as on any conventional backpack. The handle and adjustable aspects of the shoulder straps are made of one (1) inch wide nylon webbing. The handle is eight and three-fourth (8 ¾) inches long. The shoulder straps are two and one-eighth (2 1/8) inches wide and have padding composed of the same material used in the front and rear panels, the one-eighth (1/8) inch thick polyethylene “foam.” 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-four and one-half (34 ½) inches in length.

The adjustable nylon webbing aspect of the shoulder straps are attached to the lower aspects of each side of the backpack. 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 pack. The triangular-shaped pieces of material extend one and seven-eighth (1 7/8) inches from the side of the backpack to the tip of the triangle.

The advertising literature provided in the April 22, 1999, correspondence was a one-page layout. The advertisement describes the item as a “picnic backpack.” The “picnic backpack” is exhibited in a picnic setting and being carried as a backpack on the back of a user. It is stated in the literature to have two compartments, one insulated for food and beverages and one for accessories. Counsel’s submission of March 11, 1999, suggests that the item has two insulated compartments. Counsel’s submission of June 6, 2001, suggests that the focus of the advertising is that one compartment is “dedicated purely for food and beverage” and the other compartment “is also fitted for the utensils.” Correspondence of Counsel, June 6, 2001, p. 3.

The “picnic backpack” will be imported with a place setting for four that includes plates, knives, forks, spoons and cups. The plates are nine and seven-eighth (9 7/8) inches in diameter. The knives, forks and spoons measure, respectively, seven and three-eighth (7 3/8) inches, six and five-eighth (6 5/8) inches and six (6) inches in length. The cups hold fourteen (14) ounces of liquid. The plates, knives, forks, spoons and cups are made of plastic.

ISSUES

What is the classification, pursuant to the Harmonized Tariff Schedule of the United States Annotated, of the “picnic backpack” which includes the backpack, plates, cups, knives, forks and spoons ?

Do the backpack, plates, cups, knives, forks and spoons constitute “goods put up in sets 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, plates, cups, knives, forks and spoons constitute a set pursuant to General Rule of Interpretation 3 (a), 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)..

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, plates, cups, knives, forks and spoons in accordance with the dictates of GRI 1, the Customs Service examined the headings of the HTSUSA. While this is the mandatory initial step in the classification process, the Customs Service is also appreciative of the fact that “many goods are classified in the Nomenclature without recourse to any further consideration of the Interpretative Rules.” General Rules for the Interpretation of the Harmonized System, Rule 1, Explanatory Note (IV).

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. 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 believes that 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 of 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, 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.

Counsel for Avon, advocating that the “picnic backpack” is more than a travel or sports bag because of its insulated compartment or compartments, directed Customs’ attention to the decision of Digital Equipment Corp. v. United States, 889 F.2d 267 (Fed. Cir. 1989). The Court in Digital Equipment set forth a judicially created doctrine, the “more than” doctrine, 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 simply 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.

Counsel for Avon suggests that the correct eight digit subheading for the picnic backpack is subheading 6307.90.99, HTSUSA. Subheading 6307.90.99, HTSUSA, provides for “Other made up articles, including dress patterns: Other: Other: Other: Cooler bags with an outer surface of textile materials.” Avon’s position is that the picnic backpack is more properly understood to be a “cooler bag” rather than a “backpack.” The Customs Service notes that this legal position is in contradiction to Avon’s reference to the item as a “picnic backpack” in its marketing literature.

The initial inquiry, in accordance with GRI 1, is to determine the HTSUSA heading that describes the merchandise. See also GRI 6 (addressing the classification of merchandise at the subheading level). As discussed above, the Customs Service maintains the correct heading is heading 4202, HTSUSA, while Avon’s counsel directs Customs’ attention to heading 6307, HTSUSA. Heading 4202, HTSUSA, provides for, among other items, “knapsacks and backpacks.” Heading 6307, HTSUSA, provides for “Other made up articles, including dress patterns.” The “picnic backpack,” simply stated, is more accurately described as a “backpack” in heading 4202, HTSUSA, than as an “Other made up article” of heading 6307, HTSUSA.

In addition heading 6307, HTSUSA, is a residual or “basket” provision for textile articles. Merchandise that is more specifically provided for in any other heading of Section XI or elsewhere in the Nomenclature should not be classified in heading 6307, HTSUSA. See Explanatory Notes Chapter 63, General Note (1); Explanatory Note 63.07.

The plates, cups, knives, forks and spoons 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.” Explanatory Note 39.24 (A) provides that “tableware” includes plates, cups, knives, forks and spoons made of plastic. Thus, the plastic goods are tableware within the meaning of heading 3924, HTSUSA.

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, plates, cups, knives, forks and spoons are composed of polyvinyl chloride, polyethylene, nylon and plastic 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 here because the goods are prima facie classifiable under two or more headings: the backpack in heading 4202, HTSUSA, and the plates, cups, knives, forks and spoons in heading 3924, 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, plates, cups, knives, forks and spoons 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 and the plates, cups, knives, forks and spoons 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, plates, cups, knives, forks and spoons 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 plates, cups, knives, forks and spoons. 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 plates, cups, knives, forks and spoons 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 plates, cups, knives, forks and spoons when they are not in use. The fitted pockets of the pack keep the primary items organized during travel. The plates, cups, knives, forks and spoons 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 the plates, cups, knives, forks and spoons. The pockets sewn into the inside of the front panel are precisely designed to hold the cups, knives, forks and spoons. The pocket sewn into the middle panel in the front compartment is designed to hold the plates. It is the conclusion of the Customs Service that the backpack, plates, cups, knives, forks and spoons, 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 4202.92.4500, HTSUSA, as a “backpack and knapsackWith an outer surface of sheeting of plastic or of textile materials: Other.”

HOLDING

The Customs Service has reconsidered New York Ruling Letter D87672. It is the decision of the Customs Service that NY D87672 correctly classified the merchandise.

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 4202.92.4500, HTSUSA, which provides 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.

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.: 4202.92.45 - Travel, sports and similar bags with outer surface of plastic sheeting
• Tariff No.: 6307.90.99 - National flags and other made-up articles of textile materials, nesoi