CLA-2 OT:RR:CTF:TCM H248811 MG
Port Director, Service Port
U.S. Customs and Border Protection
9777 Via de la Amistad
San Diego, CA 92154
Attn: Deanna Boldt, Supervisory Import Specialist
RE: Internal Advice; Classification of Camelbak Hydration Pack Samples: “Carrier Only” Styles in Pending Protests
Dear Port Director:
The following is in response to your memorandum dated November 8, 2013, requesting Internal Advice in accordance with 19 CFR 177.11 (b)(4), concerning the proper classification of Camelbak Hydration Pack Samples “Carrier Only” Styles, under the Harmonized Tariff Schedule of the United States (HTSUS), initiated by letter dated August 20, 2013, by Sandler Travis & Rosenberg, P.A., on behalf of its client, Camelbak Products, LLC., (“Camelbak”). Samples of the merchandise and supplemental submissions, dated October 22, 2013, and March 19, 2015, were received. A meeting was held with counsel on March 17, 2015. The samples provided will be returned as requested.
FACTS:
The merchandise at issue in the pending entries consists of Camelbak hydration packs (“packs”) entered without the hydration delivery system (i.e., bladder, delivery tubing and bite valve) whose cargo volume capacity does not exceed 1350 cubic inches.
Report # NY SV20150509, dated April 6, 2015, was issued on a sample of the Style Scout hydration pack, which included the hydration bladder. The laboratory report states as follows:
The sample is a hydration backpack, style name "SCOUT", which allows for hands free access to water as one wears the pack. The pocket designated to hold the water pouch has been constructed with a layer of 1/8" (3 mm) thick cellular polyethylene plastic on each side of the water pouch and has a hook and loop closure. The cellular plastic serves as both insulation and padding. The sample is constructed using the following components (all percentages are by weight):
Grey knit fabric - used on the outer surface of the back pocket and the side of the straps that has contact with the individual wearing the backpack - 100% polyester fibers
Black woven fabric - used to line the pocket designed to hold the water pouch - 100% nylon fibers with an application of polyester urethane plastic on the inner surface
Grey woven fabric - used to bind the top of the pocket designed to hold the water pouch and the front, sides and bottom of the main body of the pack - 100% nylon fibers with an application of polyester urethane plastic on the inner surface
Cellular foam - used as padding/insulation for both sides of the pocket designed to hold the water pouch and in the straps - polyethylene - 6/16" thick
3/4" (2 cm) wide woven webbing - used for straps and loops on both the front of the pack and on the straps - 100% nylon fibers
3/4" (2 cm) wide woven webbing - used to bind the edges of the straps – 100% nylon
Red woven fabric - used on the front, sides and straps of the pack - 100% nylon fibers with an application of polyester urethane plastic on the inner surface
Black knitted mesh fabric - used for the small pleated zippered pocket on the very front of the pack - 100% nylon fibers
Blue braided loop inside the pocket that is designed for the water pouch and the grey braided loop at the top of the pack - 100% polypropylene fibers
Hydration pouch - used to hold 35 oz./1L of water - polyurethane plastic Tubing from the water pouch to the mouth of the person wearing the pouch - Tygon® tubing.
The measurements of the various parts of the sample are as follows (all measurements were made on an empty backpack):
Water pouch - 10 3/4" (27.3 cm) long by 6 3/4" (17.2 cm) wide (at the widest point)
Tubing (not counting the mouth piece) -- 36" (91.4 cm) long
Back insulated pocket - 15 1/8" (38.5 cm) long by 9 1/8" (23.0 cm) wide at the bottom tapering to 8 1/8" (20.5 cm) wide at the open end of the pocket (pocket has a hook and loop closure)
Entire back - 16" (40.6 cm) long by the same width as the back pocket Front knit mesh pleated pocket - 9 1/4" long (23.5 cm) (at the highest point) by 8 1/4" (21 cm) wide
Padded straps - 14" (35.5 cm) long by 2 1/8" (5.4 cm) wide where they are stitched into the top seam tapering to 1 1/2" (3.8 cm) wide
There is 21" (53.3 cm) of 3/4" (2 cm) wide woven nylon webbing available at each shoulder strap for size adjustments
Main cargo area of the pack is 16" (40.6 cm) long by 9 1/8" (23.0 cm) wide at the bottom tapering to 8 1/8" (20.5 cm) wide at the top by 5" (12.7 cm) deep
On April 9, 2015, CBP Laboratory Report # NY SV20150508, was issued on the Style Mule hydration pack in which the plastic hydration component was included. The laboratory report states as follows:
The sample is a hydration backpack, style name - M.U.L.E., which allows for hands free access to cool water as one wears the pack. The pocket designated to hold the water pouch has been constructed with a layer of 1/8" (3 mm) thick cellular polyethylene plastic on each side of the water pouch and has a hook and loop closure. The cellular plastic serves as both insulation and padding.
There are over 6 different "pockets" constructed into this hydration backpack. Each has been given a letter designation for ease of explanation. Pocket A is the flat pocket on the very front of the pack and pocket F is the pocket designed to hold the water pouch and is located closest to the person wearing the pack when in use.
The measurements and components of the various parts of the sample are as follows (all measurements were made on an empty pack):
Pocket A - The pocket is 11" (27.9 cm) by 6 1/2" (16.5 cm) wide. The pocket has a zipper closure. The zipper is 6 1/4" (15.9 cm) long and has one zipper pull. There is a length of woven polypropylene reflective webbing stitched close to the lower edge of the pocket. The webbing is 3/4" (2 cm) wide by 2 1/8" (5.4 cm) long. The front of the pocket is black nylon woven fabric and the back wall of the pocket is a solid piece of woven lime green nylon fabric. The lime green is visible when the zipper is open. Both the black and lime green fabrics have an application of polyurethane on one surface.
Pocket B - The pocket is 11" (27.9 cm) long by 6 1/2" (16.5 cm) wide. The pocket reaches the bottom of the pack. The gusset is of woven grey nylon fabric that has an application of polyurethane on one side. The gusset is the widest (2 1/2" or 6.4 cm) where the zipper starts and stops. The gusset tapers to nothing towards the bottom of the pack and it tapers to 1 7/8" (4.8 cm) around the top of the pocket. The zipper has one zipper pull and is 14" (35.6 cm) long. There is a grey colored nylon knitted mesh organizer pocket on the inside of pocket B as well as a grey colored narrow ribbon (3 5/8" or 9.2 cm) long ending with a plastic latch to hold keys. The organizer pocket is 5" (12.7 cm) long (including the elastic binding composed of polyester and polyisoprene at the top of the pocket) and 6 1/2" (16.5 cm) wide. The organizer pocket does not extend to the bottom of pocket B.
Pocket C - The pocket is formed using the back wall of pocket B, the front of pocket D and 2 side panels of black nylon knitted mesh that measures 7" (17.8 cm) long by 2 3/4" (7 cm) wide. The pocket reaches the bottom of the pack. The top edge of both side panels is finished with an elastic binding (composed of polyester and polyisoprene) and the excess fullness is taken up in a pleat at the bottom of the panel. One end of a 6" (15.2 cm) length of 3/4" (2 cm) polypropylene webbing is stitched into the seam of the back wall of pocket B and the other end is stitched into the main side seam of the backpack. This webbing is in place to restrict the size of the opening of pocket C. There is also an adjustable bungee cord covered with polypropylene fibers that is attached at six different points on the pack and can be used to keep items from falling out of pocket C.
Pocket D - The pocket measures 10" (25.4 cm) long (at the highest point) by 7 1/2" (19 cm) wide. The front of the pocket is a black nylon knitted mesh fabric and the back of the pocket is the front wall of pocket E, a black nylon woven fabric. The pocket is secured using a 2 piece plastic side release buckle. The pocket does not reach the bottom of the pack.
Pocket E - the pocket measures 17 1/2" (44.5 cm) long by 8" (20.3 cm) wide by 2" (5.1 cm) deep. The pocket extends to the bottom of the pack. The pocket has a 23" (58.4 cm) long 2 way zipper closure. The black woven fabrics used in the construction of the pocket are wholly of nylon fibers and have an application of polyurethane plastic on one surface.
Pocket F - This is the pocket designed to hold the water pouch. The pocket is almost the size of the pack: 17 1/2" (44.5 cm) long by 9" (22.9 cm) wide. There is a flap at the opening of the pocket. The flap overlaps the pocket by 1 1/2" (3.8 cm) and has a hook and loop closure. The front wall, the back wall and the flap are all insulated with a layer of 1/8" (3 mm) thick cellular polyethylene plastic and are constructed of black woven nylon fabrics that have an application of polyurethane on one surface and a Camelbak logo. The part of the pack that has contact with the athlete when the pack is worn has additional layers of this same insulating material sewn to the outer surface of the pocket. The extra layers of padding (9/16" or 1.4 cm thick) are separated into 6 symmetrically placed areas and form air channels between them. This design is referred to one the M.U.L.E. hangtag as; "Air Director ventilated back panel keeps you cool." The areas with the extra padding are covered with a grey knit fabric that is wholly of polyester and the edges of the grey knit are bound with woven bias binding using the plain black woven nylon fabric (no logo). The pocket reaches the bottom of the pack.
Shoulder straps - The straps are padded with a grey colored polyethylene/vinyl acetate plastic. The straps are 2 1/2" (6.3 cm) wide where they are stitched into the top seam of the pack and the straps taper to 1 1/2" (3.8 cm) wide by 16 1/2" (41.9 cm) long. The straps have black woven nylon fabric on one side and grey polyester knit fabric on the other. The edges are bound with a 1" (2.5 cm) wide black nylon woven webbing. There is a sternum brace of 3/4" (1.9 cm) wide polypropylene webbing and 1" (2.5 cm) wide polypropylene webbing used for adjusting the length of the shoulder straps. There is also a waist strap made of 1" (2.5 cm) wide black polypropylene woven webbing.
The surface area on the panel that is closest to the person while wearing the pack is 71.3% grey polyester knit fabric and 28.7% black nylon woven fabric (average of two tests). The polyurethane plastic water pouch measure 18" (45.2 cm) long by 7 1/2" (19 cm) wide. The Tygon tube that carries the water from the pouch to the athlete's mouth (including the bite valve) is 38" (96.5 cm) long.
ISSUE:
Whether the insulated “carrier only” Camelbak Hydration Packs whose cargo volume capacity does not exceed 1350 cubic inches are classified as an insulated food and beverage bag under subheading 4202.92.08, HTSUS, or as a backpack under subheading 4202.90.30, HTSUS.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the
HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.
The HTSUS subheadings under consideration are as follows:
Trunks, suitcases, vanity cases, attache cases…and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks…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:
Other:
4202.92 With outer surface of sheeting of plastic or of textile materials:
Insulated food or beverage bags:
With outer surface of textile materials:
4202.92.04 Beverage bags whose interior incorporates only a flexible plastic container of a kind for storing and dispensing potable beverages through attached flexible tubing.
4202.92.08 Other:
Travel, sports and similar bags:
With outer surface of textile materials:
Of vegetable fibers and not of pile or tufted construction:
4202.92.30 Other:
Other:
Of man-made fibers:
4202.92.3020 Backpacks.
* * *
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
There is no dispute that the merchandise is classifiable in heading 4202, HTSUS. As this dispute concerns the proper tariff classification of merchandise in the subheadings of heading 4202, HTSUS, GRI 6 applies.
The terms of the heading 4202 provide for trunks, suitcases, and containers that organize, store, protect and/or carry personal effects, including knapsacks and backpacks. The EN to 4202 states that the heading covers only (emphasis in text) the articles specifically named therein and similar containers, and, that these containers may be rigid or with a rigid foundation or soft and without foundation.
With regard to insulated food or beverage bags, the EN to 4202 further states in relevant part that:
“The expression ‘insulated food or beverage bags’ covers reusable insulated bags used to maintain the temperature of foods and beverages during transport or temporary storage."
* * *
Inasmuch as the packs are composed of goods that are prima facie classifiable in more than one heading, classification cannot be resolved under GRI 1. GRI 2(b) directs that the "classification of goods consisting of more than one material or substance shall be according to the principles of rule 3."
GRI 3 provides that:
When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings refer to only part 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 the goods, even if one of them gives a more complete or precise description of the good.
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.
* * *
In Camelbak Products, LLC v. United States, 704 F. Supp. 2d (Ct. Int’l Trade 2010), Camelbak filed suit in the CIT challenging CBP’s classification of the Camelback hydration packs as backpacks, claiming that they were classifiable as “insulated food or beverage bags” under subheading 4202.92.04, HTSUS, or 4202.92.08, HTSUS, both at 7%, ad valorem. Camelbak argued that pursuant to GRI 3(b), the “hydration feature” provided the essential character. The government argued that the subject articles were eo nomine provided for and properly classified as a whole under subheading 4202.92.30, HTSUS, pursuant to GRI 1 (as applied by GRI 6 at the subheading level).
The CIT ruled in favor of the government that the hydration packs at issue were properly classified as “travel, sports, and similar bags”, concluding that, pursuant to GRI 1, the special hydration feature did not preclude the pack from being classified as a whole under subheading 4202.92.30, HTSUS, and finding that its ability to hold hydration packs simply improved the backpacks.
However, on appeal, the Court of Appeals for the Federal Circuit (CAFC) in CamelBak Prods., LLC v. United States, 649 F.3d 1361 (Fed. Cir. 2011), reversed the decision and remanded the case to the CIT for further proceedings. The CAFC concluded that, while it is correct that “travel, sports and similar bags” are eo nomine and include all forms of backpacks, the subject articles can not be classified, eo nomine, as conventional backpacks, as the hydration component has a different design and primary use: to provide a temperature-maintained, continuous source of hands-free hydration to a user while engaged in a sporting event or recreational activity. The CAFC found that the CIT erred in considering the Camelbak hydration packs “improved backpacks,” because they possess features “substantially in excess” of those within the common meaning of the term backpack. The hydration component was not merely incidental to the cargo component but provides the articles with a unique identity and use, removing them from the scope of the eo nomine backpack provision. The CAFC found that Camelbak hydration packs are composite goods that lack a single classification in the HTSUS; thus, they must be classified pursuant to GRI 3(b).
In the instant backpacks, the padded hydration component has a different design and primary use, which is to provide a temperature-maintained compartment specially designed to hold a particular beverage container that provides a continuous source of hands-free hydration to a user while engaged in a recreational activity. The straps are also designed to run the plastic tube from the bladder located inside the hydration compartment to the bite valve. The hydration compartment is also larger than most of the other pockets. The padded compartment has the most bulk and is of considerable size in the relation to the entire pack. It also is more specialized in its role in relation to the use of the good. It, therefore, imparts the essential character to the packs.
Hence, the packs at issue are described at GRI 3(b) as insulated beverage bags with an exterior of textile material, even though they do not contain the plastic bladder in its imported condition. However, because the plastic bladder is not incorporated into the imported packs at issue upon entry, the hydration compartment portion of the insulated pack is not described by the terms of subheading 4202.92.04, HTSUS. Although the hydration compartment is an insulated beverage bags whose interior is designed to incorporate a flexible plastic container of a kind for storing and dispensing potable beverages through attached flexible tubing, it does not actually incorporate a beverage bag in its condition as imported. Therefore, although the good as a whole is classified as a beverage bag by GRI 3(b), the beverage component is other than one that incorporates a flexible container in its condition as imported. Hence, it is classified in subheading 4202.92.08, HTSUS, which covers all other insulated food and beverage bags, other than insulated beverage bags whose interior incorporates only a flexible plastic container of a kind for storing and dispensing potable beverages through attached flexible tubing.
HOLDING:
By application of GRI 3(b), the Camelbak packs at issue whose cargo volume capacity does not exceed 1350 cubic inches, are classifiable, as insulated beverage bags under subheadings 3926.90.98, HTSUS (for merchandise entered from 1999 through 2001), 4202.92.05, HTSUS (for merchandise entered from 2002 through 7/1/2003) and 4202.92.08, HTSUS (for merchandise entered from 7/2/2003 - present), at the rates of 5.3% ad valorem or 7% ad valorem, depending upon the date of entry.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
You are to mail this decision to the importer of record no later than 60 days from the date of the decision. At that time, the Office of International Trade, 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 methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division