CLA-2: RR:CR:TE 964444 mbg
Richard Shostak, Esq.
Bruce Shulman, Esq.
Stein Shostak Shostak & O’Hara
1620 L Street, N.W.
Washington, D.C. 20036-5605
RE: Backpacks with Hydration Systems
Dear Mr. Shostak and Mr. Shulman:
This is in response to your original request of June 26, 2000, on behalf of your client, Camelbak Products Inc., for a ruling as to the classification of what you term “Handsfree Portable Hydration Systems”™ under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). In preparing this reply, consideration was also given to your additional submissions to Customs of September 5, 2000; June 1, 2001; June 11, 2001; June 19, 2001; June 21, 2001; and October 24, 2001, as well as the meeting held at Customs Headquarters on October 18, 2001.
Eleven samples were submitted for review. All of the samples are described as Camelbak “Handsfree Portable Hydration Systems”™ and each “system” is composed of a combination of textiles and plastic components. Each of the samples is designed to be worn on the user’s back for easy access to water during sporting activities such as hiking, biking, snowboarding, rock climbing, etc.
Each of the samples submitted is a specially shaped and fitted container designed to carry a plastic bladder and other personal effects the type and quantity of which depend upon the size and expansion capabilities of the container. The insulated bags are constructed with an outer surface of man-made fiber textile materials and an insulated interior composed of neoprene rubber. The bags are available in various sizes and with special features available depending upon the demands of the sport for which each will be utilized. Each features padded, adjustable, polypropylene textile shoulder and waist straps. The bags are manufactured to carry the bladders and additional cargo within an open-top compartment which closes by means of a zippered closure and/or hook and loop fabric fastener.
Each plastic bladder has a tube with a mouth piece, called a “bite valve,” which extends through the backpack component for easy “hand’s free” access by the user. The flexible bladder, which is made from hypoallergenic, food-grade plastic, features a removable cap, and contains a minimum of 70 fluid ounces (of water, a sports drink, or other liquid). The tube, which measures approximately 40 inches in length, is designed to extend from the bottom of the bladder, out the top of the carrier, to a point of attachment near the user’s mouth. By biting down on the valve at the end of the tube, the user may obtain fluid with minimal effort. The bladder collapses to the extent that fluid is removed.
Each of the products, described individually below, has adjustable shoulder straps. All of the “pockets” or “compartments” discussed are in addition to the large compartment fitted to contain a bladder of a particularize size and shape. Please note that all measurements stated below are based on an empty backpack.
Sample 1, style name “Rogue”, measures 7 inches by 2 inches by 18 inches with a water capacity of seventy ounces. The Rogue is designed specifically for use while biking and features reflectors on the backpack for easy visibility. The backpack is designed to ride higher on the user’s back to facilitate comfort while racing and is slimmer by design to allow the biker more flexibility of movement than a regularly shaped backpack. An external zippered pocket is included for keys and “other essentials.” A lower pouch with gussets provides for additional storage capacity. Camelbak submits that the Rogue has 110 cubic inches of cargo space.
The Camelbak website description states “Redesigned! A perfect marriage of performance and functionality -- the expandable pocket of the Rogue holds your essentials.” “[T] he Rogue has been enhanced for longer outings. With increased hydration capacity, easy-to-use external OMEGA™ Access Port, and flexible storage options, this system is great for intermediate length outings. Take it for an afternoon mountain bike ride or your next hike. Features: Easy fill, easy clean via the external OMEGA™ Access Port; Advanced ergonomic styling; Efficient “over-the-shoulder” tube routing; Breathable mesh harness keeps you cool; External zip pocket for keys and essentials; Pleated mesh pocket stores food and extra clothing; Pump port accommodates any size mini-pump; Reflectivity ensures safety in low light.”
Sample 2, style name “Lobo”, measures 7.5 inches by 1 inch by 17.5 inches with a water capacity of seventy ounces. The Lobo is designed for cycling or hiking and features one large external zippered pocket with gussets as well as a cargo strap to securely fasten items such as clothing to the outer top portion of the bag. Within the zippered pocket, two mesh mini-pockets allow for extra organization of items. Camelbak submits that the Lobo has 110 cubic inches of cargo space.
The Camelbak website description states “headed out for a few hours of cycling or hiking? Grab the Lobo! Its versatile design, with 70 ounces of hydration and secure cargo pockets for essentials make it a great choice for an afternoon outing. Features: 4 point Bungee System holds extra clothing; Easy reservoir access through perimeter zip; Includes new sternum strap for added stability; Pump port accommodates any size mini-pump; Cargo pocket with internal organizer holds tools and keys.”
Sample 3, style name “Rocket”, measures 10 inches by 3 inches by 15 inches with a water capacity of seventy-two ounces. The product is designed for cycling and is shaped to provide extra comfort while riding a bike with a design that sits high on the user’s back. The external zippered pocket contains internal mesh pockets as well as a velcro™ strap to securely fasten a bicycle pump. The plastic tubing is covered with neoprene and a mesh backing allows for extra comfort for the user. The bag also has adjustable waist and chest straps. Camelbak submits that the Rocket has 100 cubic inches of cargo space.
The Camelbak website description states “Mountain Bike Magazine called the Rocket Camelbak’s ‘most broadly appealing product ever!’ – built for both the road and trail, this system is perfect for the multi-dimensional cyclist. Super stable and ultra-comfortable, this system is sleek and low-profile when you use just the reservoir, or organize your cycling essentials in the pleated accessory pocket. Features: Aeroform ™ 72 ounce (2.1 liters) Baffled Reservoir maintains a low aero profile; GelPocket™ holds your gel pack or energy bar; Tube cover makes your first sip as cool as the last; Pleated exterior pocket, with internal organizer, holds tools, pump and essentials; Removable sternum strap and waist belt included; Reflectivity ensures safety in low light.”
Sample 4, style name “M.U.L.E.”, measures 8 inches by 4 inches by 16.5 inches with a water capacity of one hundred ounces. Intended for bikers or for those on day hikes, the bag features one cargo pocket for keys and other essentials with small zipped pockets on the outside as well as a bungee strap for storage of a jacket or some tools. There are also adjustable waist and chest straps. Camelbak submits that the M.U.L.E. has 220 cubic inches of cargo space.
The website description for the M.U.L.E. states “The M.U.L.E. is deservingly one of Camelbak’s top sellers. An efficient and compact system, the M.U.L.E. has 100 ounces of hydration and smart cargo spaces, complete with internal organizers for tools and small gear. Perfect for any outdoor enthusiast. Features: 6-point Bungee System holds extra clothing; Easy reservoir access through perimeter zip; Wishbone harness system ensures comfort and stability; Includes waist belt and new sternum strap; Cargo pocket with internal organizer holds tools and keys.”
Sample 5, style name “Blow Fish”, measures 8 inches by 4.5 inches by 16.5 inches with a water capacity of one hundred ounces. The product is designed for use in multiple sporting activities and features 2 large external zippered pockets in addition to a mesh pocket with gussets. The smaller of the external pockets also contains an internal mesh pocket as well as a clip attached for keys. Adjustable chest and waist straps are also attached. Camelbak submits that the Blowfish has 520 cubic inches of cargo space.
The Camelbak website description states “You cycle, you hike—you’re all about adventure! Your versatility demands the flexibility of the BlowFish. With its unique expandable panel design, the system adapts to your storage needs. Mountain Bike Magazine said we downright “nailed” the design on this one. We think you’ll agree. Features: Expandable storage compartment gives you flexibility; Easy reservoir access through perimeter zip; Wishbone harness system ensures comfort and stability; Cargo pocket with internal organizer holds tools and keys; removable sternum strap and waist belt included.”
Sample 6, style name “H.A.W.G.”, measures 9 inches by 7 inches by 19 inches with a water capacity of one hundred ounces. Designed for multiple sporting activities, the bag features one large zippered compartment as well as two smaller zippered pockets and a mesh pouch with gussets. In addition to adjustable chest and waist straps, the bag has an adjustable cargo strap for additional support to the cargo when used during physical activities and a hand carrying strap attached to the top of the bag. Camelbak submits that the H.A.W.G. has 1020 cubic inches of cargo space.
The website description of the H.A.W.G. states “When you're cramming as much hiking adventure and biking action into a day as you are, you need the H.A.W.G. to keep you at your peak! Quick and mobile, Camelbak’s redesigned H.A.W.G. defines a new category of high-action mini-packs. Built for a serious scramble or for haulin' down a trail, this super stable system holds 100 oz of water, and enough gear, clothing and food for extended day trips. Features: Independent suspension harness keeps load stable as you move; Molded back panel ventilates and cools; Reservoir access through exterior Water Hole™ keeps gear and water separate; Load stabilizing waist harness system; Cargo pocket with internal organizer holds tools and keys; External mesh pocket keeps essentials handy.”
Sample 7, style name “TransAlp”, measures 20 inches by 12 inches by 8 inches with a water capacity of one hundred ounces. The bag features a velcro™ closing in the back for the bladder storage and two large compartments for the storage of gear. A smaller pocket for keys and smaller items is located on the front of the bag as well as an expandable pouch with mesh sides (pictured holding a bicycle helmet). Adjustable side straps provide extra support in keeping cargo balanced and a hand carrying strap is attached to the top of the bag. In addition, the TransAlp features a plastic rain cover which is stored in a pocket at the bottom of the bag. Camelbak submits that the TransAlp has 1740 cubic inches of cargo space.
The Camelbak website description states “Awarded the Editor’s Choice Award for 2000 by Bicycle Magazine! The completely redesigned TransAlp is loaded with cycling features and is equally at home commuting through the city or pushing the extremes or an epic ride. Technical and feature-rich, this system is built for high-torque activity and is comfortable enough to wear for hours on end. Features: Independent suspension harness keeps load stable as you move; Molded back panel ventilates and cools; Reservoir access through exterior Water Hole™ keeps gear and water separate; Load stabilizing waist harness system; Store helmet in the main overflow pocket and shoes in the secure side mesh pockets; Cargo pocket with internal organizer holds tools and keys; Reflectivity ensures safety in low light; External mesh pocket keeps essentials handy; Raincover included in bottom pocket.”
Sample 8, style name “Cloud Walker”, measures 9 inches by 8 inches by 19 inches with a water capacity of seventy ounces. The bag has a large compartment with zippered closure for storage of numerous items. In addition, the bag has an additional exterior zippered pocket with a clip attached for keys or other items and a hand carrying strap attached to the top of the bag. There are adjustable waist and chest straps as well as an adjustable strap at the top of the bag to provide additional support for balance when gear is carried in the bag. Camelbak submits that the Cloud Walker has 1200 cubic inches of cargo space.
The Camelbak website description states “The most nimble of he Camelbak’s Ascent Series™, the Cloud Walker is all about action—perfect for an afternoon on the trail.. There’s plenty of room for the essentials—water, wind shell, fleece vest and food—without going overboard on space. Features: Dynamic Contour Design distributes the load ergonomically and adds stability; Multiple cargo spaces include main compartment with double slider zip and exterior pocket for small gear; Reservoir access through exterior Water Hole™ keeps gear and water separate; Dual compression straps keep load stable; Sternum strap and integrated waist belt included.”
Sample 9, style name “Rim Runner”, measures 11 inches by 8 inches by 19 inches with a water capacity of seventy ounces. The bag features a large zippered closure for numerous items as well as a small external pocket with clip attached and a hand carrying strap attached to the top of the bag. In addition to adjustable waist and chest straps, adjustable cargo straps crisscross over the bag to provide extra support for cargo stabilization. Camelbak submits that the Rim Runner has 1500 cubic inches of cargo space.
The Camelbak website description states “the mid-size Rim Runner is the most versatile of the Camelbak’s Ascent Series ™. Equally at home on the trail or in the city, it’s the perfect size for multi-season day hikes on your favorite trails or hauling gear to the gym. Features: Dynamic Contour Design distributes the load ergonomically and adds stability; Multiple cargo spaces include main compartment with double slider zip and full length exterior pocket; Reservoir access through exterior Water Hole™ keeps gear and water separate; X-Compression design for superior stability; Sternum strap and integrated waist belt included.”
Sample 10, style name “Peak Bagger”, measures 13 inches by 10 inches by 22 inches with a water capacity of one hundred ounces. The bag is one of the largest samples under consideration and is designed for long hiking or overnight trips. The bag features an extra large cargo compartment and a large external zippered compartment with clip attached. In addition, two mesh pouches are attached to each side and nine loops attached for storage of tools and other gear. Adjustable waist and chest straps are attached as well as an upper and lower adjustable strap for cargo support. The bag also has a hand carrying strap attached to the top of the bag. Camelbak submits that the Peak Bagger has 2100 cubic inches of cargo space.
The Camelbak website description states “Largest of Camelbak’s Ascent Series™ the Peak Bagger is the ideal multi-season system. Built to carry enough food, clothing, gear, and water for a one-day peak ascent or light overnighter. The Peak Bagger is the perfect platform to deliver water while you’re on the move. Feature: Dynamic Contour Design distributes the load ergonomically and adds stability; Multiple cargo spaces include main compartment with double slider zip, exterior pocket for small gear, plus dual side mesh pockets- perfect for keeping essentials handy; Reservoir access through exterior Water Hole™ keeps gear and water separate; Three compression straps keep load stable when you’re on the move; Sternum strap and integrated waist belt included.”
Sample 11, style name “Sherpa”, measures 20 inches by 12 inches by 8 inches with a water capacity of one hundred ounces. The bag is intended for rock climbing and features a large pocket with key clip as well as elastic cording to secure items on the outside of the bag. Adjustable side straps are available to allow for extra support of cargo. In addition plastic clips are available to securely fasten an ice axe or cords and a front snapping flap that can be used to store clothing or other items. The Sherpa also has a hand carrying strap on the top of the bag. Camelbak did not submit the amount of cargo space in cubic inches for the Sherpa.
The Camelbak website description states “Camelbak’s Sherpa is a feature-rich, multi-season system designed for your most active outdoors endeavors. Technical in design, every feature from the stable independent harness system, to the ventilating molded back panel, to the 100 ounces of hydration—will support a serious outdoor addiction. Features: Independent suspension harness keeps load stable as you move; Molded back panel ventilates and cools; Main overflow pocket holds shovel or extra gear; Dual compression straps keep load stable; Gear retainers secure your ice axe and other backcountry gear, while bungee system with dual daisy chain offers a flexible cargo solution; Gear racks, ski holders, and wand pockets give you a variety of gear organizing options.”
Whether each article is properly classified as a backpack or similar container in heading 4202; as an other article of plastics in heading 3926; or as sports equipment in heading 9506 of the HTSUSA?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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.
Each of the articles at issue essentially consists of a textile “backpack,” a plastic bladder and tube with mouthpiece attached. Representatives of Camelbak presented evidence regarding the manufacture of these products to attorneys from the Office of Regulations & Rulings on October 18, 2001. According to submitted information, the company’s patented hydration systems consist of three parts in order to be functional: 1) the hydration reservoir (the plastic bladder); 2) the hydration delivery system (the plastic tubing and bite valve); and 3) the hydration carrier (the textile “backpack”). Camelbak claims that all three of these components are essential for the functioning of the products and Customs
agrees that both the textile backpack component and the plastic water carrying component are necessary for the merchandise to function. There is no question that the textile bag, if imported separately, is classifiable under heading 4202, HTSUSA. The plastic bladder, tubing, and mouthpiece, if imported separately, are classifiable under heading 3926, HTSUSA. However, it is the imported combination of these components which is at issue herein.
There is no eo nomine classification for hydration systems nor is there any eo nomine classification for a backpack/ water vessel combination of any type in the tariff. Accordingly, the subject merchandise cannot be properly classified based upon GRI 1.
GRI 2(b) states that goods consisting of more than one material are to be classified according to GRI 3. Furthermore, GRI 2(b) states that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such materials or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.
GRI 3 provides, in pertinent part:
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:
(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 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.
(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.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
The Harmonized Commodity Description and Coding System, Explanatory Notes (EN), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Explanatory Note VIII to GRI 3(b), page 4, states:
The 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.
The ENs further provide:
For the purposes of [GRI 3(b)], composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
The Camelbak products consist of a textile component and a plastic component which are adapted one to the other to form the subject hydration systems, and therefore for classification purposes, the Camelbak hydration systems are composite goods. As such, there are three competing headings under the HTSUSA which must be considered for classification of the merchandise: heading 4202 provides for, inter alia, backpacks and similar containers; heading 3926 provides for other articles of plastics; and heading 9506 provides for, inter alia, sports equipment. Each of the subject articles consists of two components which together provide the user with “hands free” access to water when engaging in a sporting activity, but which, imported together form a composite good for classification purposes under the HTSUSA.
Classification as Articles of Plastics in Heading 3926, HTSUSA
Heading 3926, HTSUSA, covers “Other articles of plastics and articles of other materials of headings 3901 to 3914.” The EN to heading 3926 indicate that the heading covers articles, not elsewhere specified or included, of plastics. Legal Note 2(ij) to Chapter 39, HTSUSA, excludes “. . . trunks, suitcases, handbags or other containers of heading 4202.” However, the classification issue herein concerns whether or not the subject merchandise is considered a container of heading 4202 and, as such, analysis of heading 3926 is warranted.
Customs has classified articles similar to the subject samples in both headings 4202 and 3926, HTSUSA, depending upon their carrying capacity and the purpose(s) for which they are designed. In HQ 961517, dated March 18, 1998, and HQ 961049, dated January 5, 1999, this office considered the classification of articles which - like the articles at issue herein - essentially consisted of two components - a plastic bladder with drinking tube, and an insulated textile container. The articles were designed to be worn on the back or around the waist to contain, carry, and dispense liquid to a user during physical activities such as hiking, biking, climbing, etc. We considered the decision by the Court of Appeals for the Federal Circuit in SGI, Incorporated v. United States, 122 F.3d 1468 (Fed. Cir. 1997), which classified portable, soft-sided, insulated cooler bags with outer surface of plastics under heading 3924, HTSUSA. In implementing the decision, Customs extended SGI's principles to hard or soft-sided, insulated coolers and similar insulated containers with outer surface of plastics or of textile materials (classifying such goods in headings 3924 or 6307, respectively). The classification of cooler bags possessing the form and characteristics of bottle cases and insulated bottle bags (designed to contain one bottle or beverage), backpacks, and other containers similar to those enumerated under heading 4202, however, remain unaffected by the decision in SGI.
None of the articles at issue in HQ 961517 and HQ 961049 was found to be similar to the containers at issue in SGI. It was noted that each insulated textile component at issue in the two rulings was similar to containers named in, and/or classifiable under, heading 4202, HTSUSA (i.e., bottle bags, sheaths, and backpacks). Rather than proceeding to find that each textile component was prima facie classifiable under heading 4202, however, and determining classification according to the terms of headings 4202 and 3926, note 2(ij) to chapter 39, and the GRIs taken in order, we considered only whether each complete article was sufficiently similar to a container enumerated under heading 4202, HTSUSA. As a result, only one of the six articles under consideration in the two rulings, was classified under heading 4202, that being model no. K2-0131, subject to HQ 961517. With regard to that article, we found that:
[I]ts large pockets and their 220 cubic centimeter capacity, allow the complete article to organize, store, protect and carry a large quantity and variety of items in addition to the bladder - characteristics which override the article’s otherwise prominent hydrating aspect. Due to the significant additional carrying capacity of model no. K2-0131, we find that the article is classifiable in heading 4202, HTS, as a container similar to a backpack....in subheading 4202.92.9026, HTSUSA.
Analysis of the "hydrating aspect" of the articles classified in HQ 961517 and HQ 961049 regrettably failed to note that “portability” and "hydration" are also important aspects of articles classifiable under heading 4202, HTSUSA, particularly backpacks. It is clear that in HQ 961517 and HQ 961049, greater recognition is due each insulated textile component's role in organizing, storing, protecting, and carrying the personal effect of water or other beverage. In addition to any non-beverage carrying capacity, the textile component provides space that is specially shaped to accommodate the filled bladder, insulation to protect the bladder and maintain the temperature of liquid contents, and the design and construction required to stabilize and transport the weight of liquid personal effects during strenuous physical exertion. (See discussion of heading 4202, infra.)
In Headquarters Ruling Letter (HQ) 960399, issued February 26, 1998, this office classified a quart-sized plastic canteen fitted with an insulated textile cover and packaged for retail sale with an adjustable textile pistol belt. We noted that the article was designed to be worn by an individual primarily to hold and carry potable water and to be filled by the ultimate consumer as needed. The canteen was found to be the primary component of the kit and the complete article was classified in subheading 3926.90.9880. In HQ 962655, issued July 7, 2000, we classified in subheading 3926.90.9880, a composite article consisting of a plastic sports bottle imported with a fitted, textile carrier bag. It was found that the bottle component supplied the article's essential character, permitting the primary function of carrying and dispensing a beverage while the nylon textile bag served the secondary function of conveniently carrying the bottle. However, the subject hydration systems include textile components which are significantly more important in the overall function of the article than the textile cover in HQ 960399 or the carrier bag of HQ 962655. The subject hydration systems include a textile hydration carrier which completely envelopes most plastic components. The straps are essential for the article’s use during exercise, the insulation allows the water temperature to remain stable, and the textile pouches and compartments provide the necessary organization and storage for tools, food, clothing and other essentials.
In the instant ruling, we must compare the essential characteristics or purposes of the “hydration systems” with those of the items currently provided for in the HTSUSA, and in light of changes to heading 4202 and its subheadings and which will take effect on January 1, 2002. On November 18, 1999, the International Trade Commission (“ITC”) instituted Investigation No. 1205-5, which proposed changes to the HTS resulting from the work of the World
Customs Organization and the Harmonized System Committee to update and clarify the Harmonized System nomenclature. Effective January 1, 2002, the adoption of modifications to the text of heading 42.02 will result in insertion of the term “insulated food or beverage bags” immediately following the term “traveling bags.” This modification will require that all insulated bags for food or beverages be classified under heading 4202, in subheading 4202.92.05 (outer surface of textile materials) or subheading 4202.92.10 (outer surface of other materials such as plastics or fabric-backed compact plastics), HTSUSA. A new eighth paragraph will be inserted in the EN to heading 42.02 stating 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.”
The previously discussed HQ 961517 and HQ 961049 will not be modified or revoked pursuant to 19 U.S.C 1625 by publishing a notice of proposed action in the Customs Bulletin, which would provide the opportunity for public comment, or by publishing a final modifying or revoking notice. It is Customs position that such publication and issuance requirements are inapplicable in circumstances in which a Customs position is modified, revoked or otherwise materially affected by operation of law, by publication pursuant to other legal authority or by other appropriate action taken by Customs in furtherance of an order, instruction or other policy decision of another governmental agency or entity pursuant to statutory or delegated authority. Such circumstances include the adoption or amendment of a statutory provision, including any change to the HTSUS. As noted above, the ITC has amended a statutory provision within the HTSUS to provide for "insulated food or beverage bags with outer surface of textile materials," in subheading 4202.92.05, HTSUSA, effective January 1, 2002. This action by another governmental agency obviates Customs publication and issuance requirements. HQ 961517 ad HQ 961049 will therefore be revoked by operation of law effective January 1, 2002. Proposed changes to the HTS are available in the Office of the Secretary, Room 112, United States International Trade Commission, 500 E Street, S.W., Washington, D.C. 20436 (telephone: 202-205-2000), and are posted on the Commission's web site at .
The change to the Harmonized Tariff Schedule to include an eo nomine provision for “insulated food or beverage bags” within heading 4202 supersedes earlier administrative decisions by Customs. The change in tariff classification will affect the Lobo and Rocket samples currently under review for all entries after January 1, 2002. The information presented by Camelbak’s Design and Research Team affirms that the hydration systems are specifically designed to be well insulated for keeping water at temperatures condusive to use in particular sports. For instance, cool water will remain cool in those backpacks which are designed for “warm weather activities” such as biking or hiking, but in other bags the insulation on the bladder and on the tubing are intended to keep water from freezing or from lowering the user’s body temperature during outdoor winter activities such as snowboarding.
Classification as Backpacks in Heading 4202, HTSUSA
In regards to the larger samples presented, heading 4202, HTSUSA, provides eo nomine for backpacks and knapsacks. Additional U.S. Note 1 to Chapter 42 states:
For the purposes of heading 4202, the expression “travel, sports and similar bags” means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers.
Determination of the tariff classification of the subject merchandise requires an understanding of terminology which is germane to the issue and is
utilized in the HTSUSA. It is a well established tenet of customs law that tariff terms are construed in accordance with their common and commercial meanings and that the common meaning of a tariff term is a question of law. Toyota Motor Sales, U.S.A., Inc. v. United States, 7 Ct. Int’l Trade 178, 182, 585 F.Supp 649 (1984), aff’d 753 F.2d 1061 (Fed.Cir. 1985). Thus, it is proper for Customs to turn to lexicographic sources to determine the meanings of the terms at issue. Once having determined the meaning of the terms, in deciding if the subject articles are within the eo nomine classification of the HTS, Customs may consider the use of the merchandise. United States v. Quon Quon Co., 46 CCPA 70, 73, C.A.D. 699 (1959). Customs interprets the use of the merchandise to include the manner in which it is used as well as the reason for which it is used. We note the following definitions:
“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.
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. in hiking, camping, etc.” The Compact Edition of the Oxford English Dictionary, Vol. III, 45 (1987); and
(2) “to carry (food or equipment) on the back esp. in camping…” Webster’s Third New International Dictionary of the English Language Unabridged (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 for carrying necessaries; any similar receptacle used by travelers for carrying light articles.” The Compact Edition of the Oxford English Dictionary, Vol. I, 1544 (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, (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). 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 finds that that the bags at issue fall within the definition of “knapsacks and backpacks” in heading 4202, HTSUSA. They have the traditional shape of small backpacks, and are designed and manufactured to carry personal effects while being worn on the user’s back. The Camelbak products vary in size and carrying capacity but all are intended to aid the user in engaging in various physical activities. The shoulder straps and adjustable nylon webbing straps, both of which are of significantly substantial construction, enable each backpack and its contents to be easily transported long distances. In addition the larger styled bags have a hand carrying strap on the top of the bags identical to those found on backpacks.
As further support, in Totes Inc., v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871 (1994), the Court of International Trade concluded that the “essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items.” The Court also ruled that by virtue of ejusdem generis the residual provision for “similar containers” in heading 4202, HTSUS, is to be broadly construed. The court found that the rule of ejusdem generis requires only that the imported merchandise share the essential character or purpose running through all the enumerated exemplars, i.e., “…to organize, store, protect and carry various items.” Heading 4202, HTSUS, in general, provides for containers used to convey personal articles; these “containers” can be anything designed to transport the assorted personal belongings of an individual.
As clearly set forth in Additional U.S. Note 1 to chapter 42, the term “travel, sports and similar bags” provides for items designed for carrying clothing and other personal effects during travel. Customs has long considered food and beverages to be "personal effects." In HQ 953458, dated April 16, 1993, this office stated that "[a]s backpacks and shopping bags are designed to carry food and beverages, we conclude that food and beverages are "personal effects" for the purposes of Chapter 42." “Personal effects” can be interpreted to mean any number of goods and substances including food and water. See HQ 954072, dated September 2, 1993 in which Customs stated:
T]here is no definition of the term "personal effects" within the tariff schedule. . . . Although the tariff does not provide an explicit definition of the term "personal effect," it does provide a clear sense of what is intended by that term. . . . [H]eading 4202, HTSUSA, provides for a variety of containers ranging from luggage to sports and travel bags, to fitted cases, and assorted similar articles. Its scope extends to various containers that are used to store and/or transport the belongings of an individual, as opposed to bulk goods or commercial goods. It is too restrictive to interpret the term "personal effects" for purposes of classification within heading 4202, HTSUSA, as pertaining only to objects to which an individual has an "intimate" relation. That standard is too subjective. . . . [H]eading 4202, HTSUSA, provides for, in part, containers designed to transport the assorted personal belongings of an individual whether it be food, clothing, documents, tools, etc... . Food is therefore within the realm of "personal effects" that are transportable by the containers of heading 4202, HTSUSA.
Furthermore, in past rulings Customs has stated that the crucial factor in the classification of merchandise is the merchandise itself. As stated by the court in Mast Industries, Inc. v. United States, 9 Ct. Int’l Trade 549, 552 (1985), aff’d 786 F.2d 1144 (CAFC, April 1, 1986), “the merchandise itself may be strong evidence of use”. In addition to the website product descriptions provided by Camelbak, the company has also included “testimonials” from consumers of the products which provide an excellent idea of how the product is utilized by the sport’s enthusiasts to whom the products are marketed. For instance, in describing one of the larger samples submitted, the Peak Bagger, one customer reports, “My sleeping bag, bivy, 1 change of clothes, and my food and water all fit! I have used it for 6 days in the back country without problem!” Another customer prefers one of the smaller samples submitted, the Lobo, and states, “I’ve removed my water bottle cage, tool bag and pump clip from my bike frame and put everything in my Lobo storage compartment with room to spare for energy bars and such!”
Customs finds that the essential character of the hydration systems is imparted by the textile bag portion of the products. Admittedly, most consumers purchase these products because they provide a combination of water container and storage bag. However, Customs believes that the consumer purchases a specific Camelbak product because it provides storage space in addition to water for hydration. If the consumer were interested in simply purchasing a product for hydration, then a water bottle or canteen would suffice. However, to sports enthusiasts, mobility is key and the backpack straps allow one to wear the Camelbak while engaging in strenuous physical activities. The unique design of the Camelbak product allows the consumer to combine the need to hydrate while exercising with the convenience of transporting various necessities also needed while engaging in a sport. Although the user’s necessities requiring storage may vary from keys, identification cards and food in the smaller versions to tools, sleeping bag, and numerous clothing articles in the larger versions, all Camelbak products provide some degree of storage capacity.
Application of Totes and the EN to heading 4202 to the analysis of the subject merchandise supports classification under heading 4202. Each article functions as a container which allows for ease of storage and efficient transporting of water and other personal items. The design and durable construction of the subject bags is such that they can be used repeatedly. Furthermore, the hydration packs are sold as a supplement for those engaging in physical activities. They undoubtedly provide storage, protection, organization and portability to personal effects, including, but not limited to, water, during travel.
Furthermore, as noted, Customs has previously classified such products under heading 4202, and in HQ 961517, we stated:
With respect to [the hydration system], we find that its large pockets and their 220 cubic centimeter capacity, allow the complete article to organize, store, protect and carry a large quantity and variety of items in addition to the bladder - characteristics which override the article’s otherwise prominent hydrating aspect. Due to the significant additional carrying capacity of [this model], we find that the article is classifiable in heading 4202, HTS, as a container similar to a backpack.
Therefore, Customs determines that Heading 4202, HTSUSA, pursuant to General Rule of Interpretation 3b, provides for the Hydration Systems with the essential character imparted by the textile bag portion of the products. The larger hydration systems are classified as backpacks or similar containers and the smaller hydration systems are classified as insulated bags for food or beverages within heading 4202, HTSUSA.
Classification as Sports Equipment in heading 9506, HTSUSA
Legal Note 1(l) to Chapter 42 excludes articles of Chapter 95 such as toys, games or sports equipment. Similarly, legal Note 1(d) to Chapter 95 excludes sports bags or other containers of heading 4202, HTSUSA. Two legal Notes such as these do not mutually exclude each other, but rather instruct that classification be made in the one chapter that most specifically provides for the article under consideration. See Headquarters Ruling Letter (HQ) 088665, dated June 14, 1991.
Heading 9506, HTSUSA, provides for articles and equipment for gymnastics, athletics, and other sports or outdoor games if not included elsewhere in Chapter 95, as well as swimming and wading pools and parts of those articles. The tariff does not define "articles and equipment for gymnastics, athletics, and other sports." The goods named in the various subheadings of heading 9506, HTSUSA, include skis, surf boards, golf clubs, balls, rackets, skates, archery equipment, hockey sticks, sleds, snowshoes, and swimming pools. All these articles enable the user to engage in the various sports or perform a specific activity. The Camelbak hydration systems, in contrast, are not specifically needed for any sport or exercise. While they may be used during various athletic activities, they do nothing in particular to make the activities possible, and may be worn, whether or not engaging in a particular sport. Customs finds that the subject merchandise is not classifiable as sports equipment within heading 9506, HTSUSA. This decision is consistent with Customs longstanding practice to exclude products which are not needed for a specific sport from heading 9506. See e.g., HQ 088807, dated August 9, 1991; and HQ 083267, dated March 17, 1989.
The articles identified as M.U.L.E., BlowFish, H.A.W.G., TransAlp, Cloud Walker, Rim Runner, Peak Bagger, and Sherpa are properly classified in subheading 4202.92.3020, HTSUSA, which provides for “Trunks, suitcases, vanity-cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toilet bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder boxes, 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: 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.” The general column one duty rate is 18.3 percent ad valorem. The textile category number is 670.
FOR ENTRIES MADE PRIOR TO JANUARY 1, 2002, the samples Lobo, Rogue, and Rocket are properly classified in subheading 3926.90.9880, HTSUSA, which provides for “Other articles of plastics and articles of other materials of heading 3901 to 3914: Other: Other, Other.” The general column one rate of duty is 5.3 percent ad valorem.
FOR ENTRIES MADE ON OR AFTER JANUARY 1, 2002, the samples Lobo, Rogue, and Rocket are properly classified in subheading 4202.92.05, HTSUSA, which provides for “Trunks, suitcases, vanity-cases, attaché 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, toilet bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder boxes, 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: Other: With outer surface of sheeting of plastic or of textile materials: Insulated food or beverage bags: With outer surface of textile materials.” The general column one duty rate is 7 percent ad valorem. There will be no applicable quota visa requirements for World Trade Organization (“WTO”) members but a textile category number will appear in the 2002 version of the HTSUSA and will apply to merchandise produced in non-WTO countries.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that 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 available for inspection at your local Customs 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 Service Website at .
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
John Durant, Director Commercial Rulings Division