The opinion
Slip Op. 10-52
UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________________
:
CAMELBAK PRODUCTS, LLC,
(successor-in-interest to CamelBak :
Products, Inc.),
:
Plaintiff,
: Court No. 05-00249
v.
:
UNITED STATES,
:
Defendant.
:
________________________________________
[Defendant’s Motion In Limine is denied; Defendant’s Motion for Summary Judgment is granted;
Plaintiff’s Cross-Motion for Summary Judgment is denied.]
Dated: May 10, 2010
Sandler, Travis & Rosenberg, P.A. (Arthur K. Purcell and Larry T. Ordet); for Plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams, Attorney in Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice (Gardner B. Miller and Jason M. Kenner); Sheryl A. French, Office of the Assistant Chief
Counsel, International Trade Litigation, Bureau of Customs and Border Protection, U.S. Department
of Homeland Security, Of Counsel; for Defendant.
OPINION
RIDGWAY, Judge:
In this action, Plaintiff CamelBak Products, LLC challenges the Bureau of Customs and
Border Protection’s tariff classification of merchandise imported by CamelBak from the Republic
of the Philippines in 2003.1
1
The Bureau of Customs and Border Protection – part of the U.S. Department of Homeland
Security – is commonly known as U.S. Customs and Border Protection. The agency is referred to
Court No. 05-00249 Page 2
The Government maintains that Customs properly classified the merchandise at issue as
“travel, sports and similar bags” under subheading 4202.92.30 of the Harmonized Tariff Schedule
of the United States (“HTSUS”), assessing duties at the rate of 17.8 % ad valorem. See generally
Defendant’s Memorandum in Support of Its Motion In Limine and For Summary Judgment (“Def.’s
Brief”); Defendant’s Memorandum in Reply to Plaintiff’s Opposition to Defendant’s Motion for
Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment (“Def.’s Reply
Brief”).2
CamelBak claims that the merchandise is instead properly classified as “insulated food or
beverage bags” under subheading 4202.92.04, or, alternatively, under subheading 4202.92.08, both
dutiable at a rate of 7 % ad valorem. See Brief in Support of Plaintiff’s Cross-Motion for Summary
Judgment, and Response to Defendant’s Motion for Summary Judgment (“Pl.’s Brief”); Reply Brief
in Support of Plaintiff’s Cross-Motion for Summary Judgment (“Pl.’s Reply Brief”).3
This action, which has been designated a test case, is before the Court on cross-motions for
summary judgment. Also pending is the Government’s Motion In Limine, challenging the
as “Customs” herein.
2
All citations to the HTSUS herein are to the 2003 edition.
3
In its opening brief, CamelBak argued that, if the subject merchandise were found to be
properly classified under subheading 4202.92.04, the merchandise qualified for duty-free treatment
under the Generalized System of Preferences (“GSP”), which accords special status to goods that
are classified under certain tariff provisions (including subheading 4202.92.04) and are “products”
of certain countries (including the Philippines). See Pl.’s Brief at 4-5, 6, 9, 29. However, the
Government objected that CamelBak failed to set forth a GSP claim in the protest that it filed with
Customs, and argued that the Court therefore lacked jurisdiction to entertain that claim. See Def.’s
Reply Brief at 15-17. CamelBak thereafter abandoned its GSP claim as to the entries at issue in this
action. See Pl.’s Reply Brief at 10-11.
Court No. 05-00249 Page 3
admissibility of CamelBak’s evidence proffered to establish that the subject merchandise is
sufficiently insulated to maintain the temperature of beverages during transport or temporary
storage. See generally Def.’s Brief; Brief in Opposition to Defendant’s Motion In Limine (“Pl.’s In
Limine Brief”). Jurisdiction lies under 28 U.S.C. § 1581(a) (2000).4
As discussed below, the merchandise at issue was properly classified as “travel, sports and
similar bags” under subheading 4202.92.30 of the HTSUS. The Government’s motion for summary
judgment is therefore granted, and CamelBak’s cross-motion for summary judgment is denied. In
addition, the Government’s Motion In Limine is denied as moot.
I. Background
At issue are ten models of merchandise which CamelBak refers to as “Hydration Packs” or
“Hydration Systems.” See Pl.’s Brief at 1.5 Each model is a textile bag with padded, adjustable
shoulder straps, designed to be worn on the back during a recreational activity, such as hiking,
biking, snowboarding, or rock climbing. See Pl.’s Brief at 2; Def.’s Brief at 2. Each of the models
features both a “cargo” compartment (designed to hold food, clothing, gear, and other supplies) and
a “reservoir” (bladder) compartment, which is surrounded by closed-cell polyethylene foam and is
designed to carry and maintain the temperature of water or some other beverage. See Pl.’s Brief at
4
All statutory citations herein (other than citations to the HTSUS) are to the 2000 edition of
the United States Code.
5
CamelBak markets the ten models at issue as “Scout” (Pl.’s Exh. 6(A)), “M.U.L.E.” (Pl.’s
Exh. 6(B)), “SnoDAWG” (Pl.’s Exh. 6(C)), “SnoBound” (Pl.’s Exh. 6(D)), “Isis” (Pl.’s Exh. 6(E)),
“Ventoux” (Pl.’s Exh. 6(F)), “Ares” (Def.’s Exh. F), “Blowfish” (Def.’s Exh. G), “Day Star” (Def.’s
Exh. H), and “H.A.W.G.” (Def.’s Exh. I).
Court No. 05-00249 Page 4
2; Def.’s Reply Brief at 4-5. The cargo compartment of each model differs in capacity and
configuration, depending on the activity for which the model is designed. See Pl.’s Brief at 2. Each
“reservoir” (bladder) has a capacity of between 35 and 100 ounces of liquid, depending on the
model. See id. A piece of 40-inch plastic tubing runs from the reservoir (bladder) to a silicone
mouth-piece and bite valve, to allow the wearer to drink “hands-free.” See id.
The merchandise at issue was entered in four shipments during September and October
2003. See Def.’s Reply Brief, Exh. 3 (entry summaries). CamelBak entered the merchandise as
“travel, sports and similar bags” under subheading 4202.92.30, in accordance with a prior Customs
HQ Ruling. See Def.’s Reply Brief, Exh. 3 (entry summaries); HQ 96444 (Dec. 18, 2001) (ruling,
at the request of CamelBak, on the classification of 11 models of CamelBak “Hands-Free Portable
Hydration Systems”). CamelBak filed a timely protest, which Customs denied. This action
followed.
II. Standard of Review
Customs classification decisions are reviewed de novo, through a two-step analysis. See 28
U.S.C. § 2640; Faus Group, Inc. v. United States, 581 F.3d 1369, 1371-72 (Fed. Cir. 2009). The
first step of the analysis addresses the proper meaning of the relevant tariff provisions, which is a
question of law. The second step involves determining whether the merchandise at issue falls within
a particular tariff provision as construed. See Faus Group, 581 F.3d at1371-72 (citing Orlando Food
Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998)).
Under USCIT Rule 56, summary judgment is appropriate where “there is no genuine issue
as to any material fact” and the moving party is entitled to judgment as a matter of law. See USCIT
Court No. 05-00249 Page 5
R. 56(c). Summary judgment is thus appropriate in a customs classification case if there is no
genuine dispute of material fact (because the nature of the merchandise at issue is not in question),
such that the decision on the classification of the merchandise turns solely on the proper meaning
and scope of the relevant tariff provisions. See Faus Group, 581 F.3d at1371-72.
In the present case, the parties disagree as to the meaning and scope of the tariff provisions
at issue. They are, however, in agreement as to the nature of the imported merchandise (except to
the extent that the Government challenges CamelBak’s evidence on insulation, an issue which is
rendered moot by the disposition below). This matter is therefore ripe for summary judgment.
III. Analysis
The tariff classification of all merchandise imported into the United States is governed by
the General Rules of Interpretation (“GRIs”) and the Additional U.S. Rules of Interpretation
(“ARIs”), which provide a framework for classification under the HTSUS, and are to be applied in
numerical order. See BASF Corp. v. United States, 482 F.3d 1324, 1325-26 (Fed. Cir. 2007); 19
U.S.C. § 1202.6 Most merchandise is classified pursuant to GRI 1, which provides for classification
“according to the terms of the headings and any relative section or chapter notes.” See GRI 1,
HTSUS.
6
The HTSUS consists of the General Notes, the General Rules of Interpretation (“GRIs”),
the Additional U.S. Rules of Interpretation (“ARIs”), and Sections I to XXII of the HTSUS
(including Chapters 1 to 99, together with all Section Notes and Chapter Notes, article provisions,
and tariff and other treatment accorded thereto), as well as the Chemical Appendix. See BASF
Corp., 482 F.3d at 1325-26; Libas, Ltd. v. United States, 193 F.3d 1361, 1364 (Fed. Cir. 1999)
(noting that the HTSUS is a statute, even though it “is not published physically in the United States
Code”) (citing 19 U.S.C. § 1202).
Court No. 05-00249 Page 6
The Government maintains that each of the ten models of CamelBak merchandise at issue
is properly classified as a whole as a “travel, sports [or] similar bag[ ]” under HTSUS subheading
4202.92.30, through the application of GRI 1 (as applied by GRI 6, which controls classification at
the subheading level).7 According to the Government, the classification analysis therefore cannot
proceed beyond GRI 1, because a single tariff provision – subheading 4202.92.30 – covers each of
the items in its entirety. See Def.’s Brief at 6, 17-22; Def.’s Reply Brief at 1-10.
In contrast, CamelBak contends that subheading 4202.92.30 (covering “travel, sports and
similar bags”) “does not completely embrace specially designed . . . [articles] that include a fully-
integrated, insulated component . . . designed to efficiently carry and maintain the temperature of
a beverage.” See Pl.’s Brief at 16. According to CamelBak, the items at issue constitute “composite
goods” consisting of two components – a “cargo component” (which, according to CamelBak, is
prima facie classifiable as a “travel, sports [or] similar bag[ ]”), and an “insulated beverage bag
component” (which CamelBak asserts is prima facie classifiable as an “insulated beverage bag”).
See Pl.’s Brief at 14-17; see also id. at 8; Pl.’s Reply Brief at 1-2. CamelBak argues further that,
“[b]ecause the[ ] two subheadings ‘each refer to part only of the materials’ contained in the [subject
7
The appropriate subheading for classification is considered only after determining the proper
heading. See Faus Group, 581 F.3d at 1372. And classification at the subheading level is governed
by GRI 6, which specifies that:
For legal purposes, the classification of goods in the subheadings of a heading shall
be determined according to the terms of those subheadings and any related
subheading notes and, mutatis mutandis, to the [GRIs], on the understanding that
only subheadings at the same level are comparable.
GRI 6, HTSUS.
Court No. 05-00249 Page 7
merchandise],” the merchandise cannot be classified pursuant to GRI 3(a) (which generally provides
for classification under the most specific heading and is known as the “rule of relative specificity”).
See Pl.’s Reply Brief at 2; GRI 3(a), HTSUS. CamelBak therefore concludes that each of the models
at issue must be classified as an “insulated food or beverage bag” pursuant to GRI 3(b), because –
according to CamelBak – it is the special “hydration” feature (i.e., the so-called “insulated beverage
bag component”) that gives the subject merchandise its “essential character.” See Pl.’s Brief at 8-9,
17-28; Pl’s Reply Brief at 2; GRI 3(b), HTSUS.8
As detailed below, the items here in dispute are properly classified as “travel, sports and
8
Specifically, GRI 3 provides that:
When . . . 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 in a set 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.
GRI 3, HTSUS (emphases added).
Court No. 05-00249 Page 8
similar bags” under HTSUS subheading 4202.92.30, through the straightforward application of
GRI 1 (as applied by GRI 6). Contrary to CamelBak’s assertions, the special “hydration” feature
of its merchandise does not preclude the items from being prima facie classifiable as “travel, sports
and similar bags.” Notwithstanding that special feature, the items are described in their entirety by
the subheading “travel, sports and similar bags.” Further, while the subheading “travel, sports and
similar bags” describes the items at issue as a whole, the subheading “insulated food or beverage
bags” does not.
GRI 3 thus has no application here, because each of the subject items is not prima facie
classifiable under two or more subheadings. See GRI 3, HTSUS. Because the merchandise at issue
is classifiable pursuant to GRI 1, resort to subsequent GRIs – including GRI 3(b) and its “essential
character” analysis – is therefore unnecessary. See, e.g., Mita Copystar America v. United States,
160 F.3d 710, 713 (Fed. Cir. 1998) (noting that “it is not appropriate to reach GRI 3(b) if GRI 1
dictates the proper classification for particular merchandise”).
Finally, even assuming arguendo that CamelBak were correct in its claims that neither the
subheading for “travel, sports and similar bags” nor the subheading for “insulated food and beverage
bags” described the subject items in their entirety, a GRI 3(b) “essential character” analysis would
nevertheless be unnecessary. Instead, as outlined below, the merchandise at issue would be
classified under the remaining subheading at the same level – the residual subheading, “other,”
which (like subheading 4202.92.30) carries a duty rate of 17.8 %. See subheading 4202.92, HTSUS.
Thus, contrary to CamelBak’s claims, there are no circumstances under which a GRI 3(b) “essential
character” analysis would be appropriate in this case.
Court No. 05-00249 Page 9
A. Application of GRI 1
In relevant part, GRI 1 provides for classification “according to the terms of the headings and
any relative section or chapter notes.” GRI 1, HTSUS. Thus, the first step in any classification
analysis is to determine whether the headings and section or chapter notes require a particular
classification. The parties here properly focus on HTSUS heading 4202,9 which covers “knapsacks
and backpacks,” as well as “traveling bags” and “sports bags,” in addition to “insulated food or
beverage bags” and a broad range of other items. See Heading 4202, HTSUS.10
In the absence of contrary legislative intent, HTSUS terms are to be construed in accordance
with their common and commercial meaning. See JVC Co. of Am. v. United States, 234 F.3d 1348,
1352 (Fed. Cir. 2000) (citation omitted). In ascertaining the meaning of terms, courts “may rely
9
Nothing about the Court of Appeals’ recent decision in Outer Circle Products is inconsistent
with the classification of the merchandise at issue here under heading 4202. See Outer Circle Prods.
v. United States, 590 F.3d 1323 (Fed. Cir. 2010). Although the Court of Appeals there held that,
because the merchandise in that case was used to “‘organize, store, protect, or carry food or
beverages,’ [it could not] be classified under HTSUS heading 4202,” the merchandise in that case
was imported in 1997, well before heading 4202 was amended to expressly include the eo nomine
term “insulated food or beverage bags.” See Outer Circle Prods., 590 F.3d at 1325-26; see also id.
at 1325 (quoting the text of heading 4202 in force at the time of importation in 1997).
10
In its entirety, HTSUS heading 4202 covers:
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, toiletry bags,
knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases,
cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes,
powder cases, cutlery cases and similar containers, of leather or of composition
leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of
paperboard, or wholly or mainly covered with such materials or with paper.
Heading 4202, HTSUS (emphases added).
Court No. 05-00249 Page 10
upon [their] own understanding of the terms used, lexicographic and scientific authorities,
dictionaries, and other reliable information.” Id.
The Government maintains that the ten items of CamelBak merchandise at issue fall within
the common meaning and scope of the terms “traveling bags” and “sports bags,” as those terms are
used in heading 4202. See generally Def.’s Brief at 17-22. The dictionary definition of the term
“travel” is “1. To go from one place to another, as on a trip; journey.” American Heritage
Dictionary of the English Language (4th ed. 2009). And the term “sport” is defined as “2. An
activity involving physical exertion and skill that is governed by a set of rules or customs and often
undertaken competitively. 3. An active pastime; recreation.” Id. Further, the term “bag” is defined
as “1. a. A container of flexible material, such as paper, plastic, or leather, that is used for carrying
or storing items. 2. A handbag; a purse. 3. A piece of hand luggage, such as a suitcase or satchel.”
Id. Thus, incorporating the common meanings of “travel” and “bag,” the term “traveling bags”
covers all forms of flexible containers used by travelers to carry or store items; and, incorporating
the common meanings of “sport” and “bag,” the term “sports bags” covers all forms of flexible
containers used by individuals to carry or store items while they are engaged in activities involving
physical exertion, or active pastime or recreation.11
11
The Explanatory Notes to Chapter 42 note that, for purposes of heading 4202, “[t]he
expression ‘sports bags’ includes articles such as golf bags, gym bags, tennis racket carrying bags,
ski bags and fishing bags.” See Explanatory Notes to the Harmonized Commodity Description and
Coding System (“Explanatory Notes”), Chapter 42, HTSUS.
The Explanatory Notes are the official interpretation of the Harmonized Commodity
Description and Coding System (on which the HTSUS is based), as set forth by the World Customs
Organization (the same body which drafts the international nomenclature). See Rocknel Fastener,
Inc. v. United States, 267 F.3d 1354, 1360 (Fed. Cir. 2001) (noting that Explanatory Notes are
Court No. 05-00249 Page 11
The expression “insulated food or beverage bags” is defined in the Explanatory Notes to
Chapter 42 as covering “reusable insulated bags used to maintain the temperature of foods and
beverages during transport or temporary storage.” See Explanatory Notes to the Harmonized
Commodity Description and Coding System (“Explanatory Notes”), Chapter 42, HTSUS. In
addition, the term “insulate” is defined as “2. To prevent the passage of heat, electricity, or sound
into or out of, especially by surrounding with a nonconducting material.” American Heritage
Dictionary of the English Language. The term “beverage” is defined as “[a]ny one of various
liquids for drinking, usually excluding water.” Id. And, as discussed above, the term “bag” is
defined as “1. a. A container of flexible material, such as paper, plastic, or leather, that is used for
carrying or storing items. 2. A handbag; a purse. 3. A piece of hand luggage, such as a suitcase or
“prepared by the World Customs Organization to accompany the international harmonized
schedule”). As Congress has recognized, the Explanatory Notes “provide a commentary on the
scope of each heading of the Harmonized System and are thus useful in ascertaining the
classification of merchandise under the system.” H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess.
549 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582; see also Guidance for Interpretation of
Harmonized System, 54 Fed. Reg. 35,127, 35,128 (Aug. 23, 1989) (noting that Explanatory Notes
provide a commentary on scope of each HTSUS heading, and are official interpretation of
Harmonized System at international level).
Accordingly, although the Explanatory Notes “do not constitute controlling legislative
history,” they serve a critical function as an interpretative supplement to the HTSUS, and “are
intended to clarify the scope of HTSUS [provisions], and to offer guidance in interpreting [those
provisions].” See Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994) (citation
omitted). The Explanatory Notes are thus highly authoritative – “persuasive” and “‘generally
indicative of the proper interpretation of a tariff provision.’” See Agfa Corp. v. United States, 520
F.3d 1326, 1329-30 (Fed. Cir. 2008) (quoting Degussa Corp. v. United States, 508 F.3d 1044, 1047
(Fed. Cir. 2007)).
All citations to the Explanatory Notes herein are to those in place as of the date of
importation of the merchandise here at issue.
Court No. 05-00249 Page 12
satchel.” Id. Thus, considering the common meaning and scope of the terms “insulate,” “beverage,”
and “bag,” read in light of the relevant Explanatory Note, the term “insulated beverage bags” covers
all forms of flexible, reusable containers that are used to maintain the temperature of potable liquids
during their transport or temporary storage.
Finally, the term “backpack” is defined as “1. A knapsack, often mounted on a lightweight
frame, that is worn on a person’s back, as to carry camping supplies.” American Heritage
Dictionary of the English Language. “Knapsack,” in turn, is defined as “[a] bag made of sturdy
material and furnished with shoulder straps, designed for carrying articles such as camping supplies
on the back.” Id.; see also United States v. Standard Surplus Sales, Inc., 667 F.2d 1011 (C.C.P.A.
1981) (concluding, in context of Tariff Schedule of the United States (the predecessor to the
HTSUS), that “knapsack” and “backpack” refer to substantially identical merchandise).
All ten models of the subject merchandise are bags made of sturdy material, which feature
padded, adjustable shoulder straps, and which are designed to permit supplies and gear to be carried
on the wearer’s back. Thus, whether or not the items at issue can also be described as “traveling
bags,” “sports bags,” or “insulated beverage bags,” it is clear that they fit comfortably within the
definition of “backpacks” or “knapsacks.” The merchandise is therefore properly classifiable under
heading 4202 of the HTSUS.
At the next level, there are four competing subheadings of heading 4202. See Heading 4202,
HTSUS. The merchandise is patently not “trunks, suitcases, vanity cases, attache cases, briefcases,
school satchels and similar containers,” “[h]andbags, whether or not with shoulder strap, including
those without handle,” or “[a]rticles of a kind normally carried in the pocket or in the handbag.” The
Court No. 05-00249 Page 13
proper classification at this level is therefore “[o]ther,” as the parties agree.
The three competing subheadings at the next level divide merchandise based on whether it
has an “outer surface of leather, of composition leather or of patent leather” (subheading 4202.91),
an “outer surface of sheeting of plastic or of textile materials” (subheading 4202.92), or “[o]ther”
(subheading 4202.99). See Heading 4202, HTSUS. There is no dispute that the merchandise here
has an “outer surface of sheeting of plastic or of textile materials.” The merchandise is thus properly
classifiable under subheading 4202.92. See Subheading 4202.92, HTSUS.
It is at the next level of tariff subheadings that the Government and CamelBak part company.
At this level, there are four competing subheadings: “[i]nsulated food or beverage bags,” “[t]ravel,
sports and similar bags,” “[m]usical instrument cases,” and “[o]ther.” See Subheading 4202.92,
HTSUS. Additional U.S. Note 1 explains that the expression “travel, sports and similar bags” refers
expansively to “goods, other than those falling in [specified subheadings not relevant here], of a kind
designed for carrying clothing and other personal effects during travel, including backpacks and
shopping bags of this heading . . . .” See Additional U.S. Chapter Note 1, Chapter 42, HTSUS
(emphasis added). As discussed above, the merchandise here can be properly described as
“backpacks.” Pursuant to Additional U.S. Note 1, the merchandise therefore falls within the tariff
provision covering “travel, sports and similar bags,” and is prima facie classifiable thereunder.
Pointing to the language of Additional U.S. Note 1, which indicates that “travel, sports and
similar bags” are “designed for carrying clothing and other personal effects,” CamelBak asserts that
water that is not in a bottle or other container is not a “personal effect,” and that the merchandise at
issue here therefore cannot be classified as “travel, sports and similar bags.” See Additional U.S.
Court No. 05-00249 Page 14
Chapter Note 1, Chapter 42, HTSUS (emphasis added); Pl.’s Reply Brief at 4-6. But CamelBak’s
argument cannot carry the day. The merchandise at issue is, in fact, “designed for carrying clothing
and other personal effects,” within the meaning of Additional U.S. Note 1. Even more to the point,
the language that CamelBak highlights is not exclusive. Nothing in the language of Additional U.S.
Note 1 states that “travel, sports and similar bags” must be designed to carry only “personal
effects.”12 Thus, even if – as CamelBak claims – water that is not in a bottle or other container is
not a “personal effect,” the merchandise here is nevertheless prima facie classifiable under the
subheading covering “travel, sports and similar bags.”13
Moreover, the water-carrying and -dispensing functionalities of the merchandise at issue do
not remove the merchandise from the purview of “travel, sports and similar bags,” an eo nomine
12
Reading Additional U.S. Note 1 in such a literal and cramped fashion would also mean that
bags designed to carry a tennis racket, fishing gear, or golf clubs, but not clothing, could not be
classified under subheading 4202.92 as “travel, sports and similar bags” – clearly an untenable
result. See Additional U.S. Chapter Note 1, Chapter 42, HTSUS (stating that “travel, sports and
similar bags” are “designed for carrying clothing and other personal effects”) (emphases added);
Explanatory Notes, Chapter 42, HTSUS (explaining that, for purposes of heading 4202, “[t]he
expression ‘sports bags’ includes articles such as golf bags, gym bags, tennis racket carrying bags,
ski bags and fishing bags”); Subheading 4202.92, HTSUS.
13
The Government argues that – for purposes of Additional U.S. Note 1 – Customs has
construed the term “personal effects” to encompass food and beverages (including water), a position
which the Government contends is entitled to Skidmore deference here. See Def.’s Brief at 19-21;
Def.’s Reply Brief at 3, 13-15. However, unlike the water in this case, the water contemplated in
the prior Customs rulings on which the Government relies was water in bottles or other similar
containers. See, e.g., HQ 953458 (April 16, 1993). Customs’ assertedly longstanding position
therefore has no bearing on this case, and is entitled to no deference.
For the reasons outlined above, however, there is no need to decide whether water like that
at issue here is a “personal effect” within the meaning of Additional U.S. Note 1. See Def.’s Reply
Brief at 5 (arguing that water is a “personal effect” even if it is not carried in a “traditional bottle”).
Even assuming that water which is not in a bottle or other container is not a “personal effect” (as
CamelBak claims), CamelBak still cannot prevail.
Court No. 05-00249 Page 15
tariff provision which covers all forms of the named article. See, e.g., E.T. Horn Co. v. United
States, 367 F.3d 1326, 1332 (Fed. Cir. 2004) (explaining that “eo nomine provisions . . . include all
forms of the named article”) (citation omitted); Nootka Packing Co. v. United States, 22 C.C.P.A.
464, 469-70 (1935) (same).14 It is well-settled that “[a]n article which has . . . been ‘improved or
amplified’ is not excluded from an eo nomine designation.” See Wagner Spray Tech Corp. v. United
States, 31 CIT 676, 682, 493 F. Supp. 2d 1265, 1271 (2007) (citing Casio, Inc. v. United States, 73
F.3d 1095, 1098 (Fed. Cir. 1996); JVC, 234 F.3d at 1352).
In short, because they incorporate a special feature which allows wearers to efficiently carry
and dispense cool water or other beverages (and thus permit users to avoid carrying bottled drinks
in their packs), the items at issue here may be upscale, specialized, “improved” versions of
traditional backpacks. But they are backpacks nonetheless, and they are prima facie classifiable
under the very broad tariff provision covering “travel, sports and similar bags.”
In contrast, the merchandise is plainly not classifiable as “musical instrument cases,” another
subheading at the same level. See Subheading 4202.92.50, HTSUS. Nor is the merchandise
classifiable under the residual provision, “other,” because – as discussed above – the items are
classifiable under a different subheading at the same level, as “travel, sports and similar bags.” See
Subheading 4202.92, HTSUS. The sole remaining subheading at this level covers “insulated food
or beverage bags.” See id. And CamelBak’s merchandise is not classifiable under that provision
either. “Insulated food or beverage bags” is simply too narrow, and too specific, to describe each
14
An eo nomine provision is one which “‘describes the merchandise by name, not by use.’”
See BASF Corp. v. United States, 497 F.3d 1309, 1315 (Fed. Cir. 2007) (quoting Carl Zeiss, Inc.
v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999)).
Court No. 05-00249 Page 16
of the items at issue as a whole.
As a threshold matter, it is uncontroverted that only a portion of each of the ten subject items
is designed to carry water, while the remainder of the capacity is designed to carry “cargo.” See
Pl.’s Exhs. 6(A)-6(F); Def.’s Exhs. F-I; Pl.’s Brief at 15 (distinguishing between “the cargo
component” and the “beverage bag component” of the items). An examination of the specific
merchandise at issue here discloses that there is simply too much that is designed to carry cargo
(rather than beverages) to permit the items to be fairly described as “beverage bags,” whether
insulated or not. See Pl.’s Exhs. 6(A)-6(F); Def.’s Exhs. F-I; Simod Am. Corp. v. United States, 872
F.2d 1572, 1578 (Fed. Cir. 1989) (observing that “the merchandise itself is often a potent witness
in classification cases”) (citing Marshall Field & Co. v. United States, 45 C.C.P.A. 72, 81 (1958)).
For this reason alone, CamelBak’s merchandise cannot be classified under the subheading covering
“insulated food or beverage bags.” See Subheading 4202.92 (emphasis added).15
15
CamelBak notes that Customs “[has] classified CamelBak’s hydration systems with up to
110 cubic inches of cargo volume as insulated beverage bags, and systems with larger cargo volume
as ‘backpacks.’” Pl.’s Brief at 15 (citing HQ 964444); see also id. at 12 (asserting that some
Customs rulings since 2002 have “arbitrarily [drawn] a line between ‘insulated beverage bags’ and
‘travel, sport and similar bags’ based on the capacity of the storage area alone”).
It thus appears that, at least in some cases, Customs has ruled that merchandise is classifiable
as “insulated beverage bags” notwithstanding the existence of at least some cargo capacity designed
to carry things other than beverages. However, there is no need here to definitively decide the extent
– if any – of the cargo capacity that merchandise may have and still be classifiable as an “insulated
food or beverage bag[ ]” under subheading 4202.92. For purposes of the specific merchandise at
issue in this action, it is enough to say that there is simply too much that is designed to carry cargo
(rather than beverages) to permit the items to be fairly described as “beverage bags,” whether
insulated or not.
Court No. 05-00249 Page 17
Further, even assuming that the items at issue could be described as “beverage bags” (which
they cannot), the merchandise nevertheless still could not be classified as “insulated food or
beverage bags.” Specifically, it is uncontroverted that any insulation is confined solely to the
bladder (reservoir) portion of the items, and that the cargo portion is not insulated. See, e.g., Pl.’s
Brief at 13 (stating that insulation “completely surrounds the reservoir” portion of each item)
(emphasis omitted); Pl.’s Exhs. 6(A)-6(F); Def.’s Exhs. F-I.16 For this reason too, the subject
merchandise cannot be classified under the subheading for “insulated food or beverage bags.” An
examination of the ten specific items at issue here confirms that there is simply too much of each
of those items that is not insulated to permit them to be fairly described as “insulated food or
beverage bags.” See Pl.’s Exhs. 6(A)-6(F); Def.’s Exhs. F-I; Simod, 872 F.2d at 1578 (noting that
sample of subject merchandise can be “a potent witness”); Subheading 4202.92, HTSUS (emphasis
added); see generally Def.’s Reply Brief at 8-9 (arguing that subject items’ “uninsulated cargo
space” precludes their classification as “insulated food or beverage bags”).17
16
Invoking Daubert, the Government challenges the admissibility of, and moves to exclude,
the evidence that CamelBak proffers to establish that the subject merchandise is sufficiently
insulated to maintain the temperature of beverages during transport or temporary storage. See Def.’s
Brief at 2, 5-15, 22-25; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). There is,
however, no need to reach the issue here, because – even assuming that the bladder (reservoir)
portion of the items at issue is insulated as CamelBak claims – CamelBak nevertheless cannot
prevail. Accordingly, in light of the result set forth below, the Government’s Motion In Limine is
denied as moot.
17
There is no need to definitively decide here whether the entirety of a beverage bag must
be insulated in order to be classifiable as an “insulated food or beverage bag[ ]” under subheading
4202.92. For purposes of classifying the specific merchandise at issue in this action, it suffices to
note that there is simply too much of each of the subject items that is not insulated to permit them
to be fairly described as “insulated food or beverage bags.”
Court No. 05-00249 Page 18
The merchandise at issue is therefore classifiable as “travel, sports and similar bags” under
HTSUS subheading 4202.92. “Travel, sports and similar bags” are, in turn, classified at the next
level based on whether they have an “outer surface of textile materials” or something “other.” See
Subheading 4202.92, HTSUS; Subheading 4202.92.45, HTSUS. Here, it is undisputed that the outer
surface is made of textile materials, but not “of vegetable fibers and not of pile or tufted
construction.” See Subheading 4202.92, HTSUS; Pl.’s Exhs. 6(A)-6(F); Def.’s Exhs. F-I; Pl.’s
Brief at 21 (noting that subject items have “outer textile shell”). The merchandise was thus properly
classified as “Travel, sports and similar bags: With outer surface of textile materials: Other,” under
subheading 4202.92.30 of the HTSUS, dutiable at the rate of 17.8 %.
B. CamelBak’s Claims
As discussed in section III.A above, CamelBak maintains that the merchandise at issue here
is not classifiable pursuant to GRI 1 (as applied by GRI 6), because – according to CamelBak – there
is no single subheading which completely describes the entirety of each of the items. See Pl.’s Brief
at 14-17; Pl.’s Reply Brief at 1-2. CamelBak contends that the subject items are “composite goods”
made up of a “cargo component” (which component CamelBak contends is prima facie classifiable
as a “travel, sports or similar bag”), and an “insulated beverage bag component” (which CamelBak
asserts is prima facie classifiable as an “insulated food or beverage bag[ ]”). See Pl.’s Brief at 2, 8,
14-17; Pl.’s Reply Brief at 1-2. CamelBak argues that the merchandise therefore must be subject
to a GRI 3(b) “essential character” analysis, and concludes that such an analysis results in
classification under the subheading covering “insulated food or beverage bags,” because the
merchandise’s essential character is assertedly imparted by the so-called “insulated beverage bag”
Court No. 05-00249 Page 19
component. See Pl.’s Brief at 8-9, 17-28; Pl.’s Reply Brief at 2; GRI 3(b), HTSUS.18
As explained above, however, there is no merit to CamelBak’s claims. The mere fact that
a piece of merchandise may consist of more than one component does not necessarily make that
merchandise a “composite good” subject to classification under GRI 3(b). See Pomeroy Collection,
Ltd. v. United States, 32 CIT ____, ____, 559 F. Supp. 2d 1374, 1391-92 (2008) (footnote omitted).
GRI 3(b) applies only if “no one provision exists in the Harmonized System that provides for the
[composite good] . . . as a whole.” See id. (quoting U.S. Customs and Border Protection, “What
Every Member of the Trade Community Should Know About Tariff Classification” at 19 (May
2004)) (emphasis added in Pomeroy).
The linchpin of CamelBak’s argument is its assertion that – due to the special hydration
feature in its merchandise (the so-called “beverage bag component”) – the items at issue are not
completely described as “backpacks” and thus are not prima facie classifiable under the broad
subheading covering “travel, sports and similar bags.” See Subheading 4202.92, HTSUS;
Additional U.S. Chapter Note 1, Chapter 42, HTSUS (explaining that “travel, sports and similar
bags” refers to “goods . . . of a kind designed for carrying clothing and other personal effect during
travel, including backpacks”). But, contrary to CamelBak’s assertions, the fact that the ten items
incorporate an assertedly insulated water-carrying and -dispensing feature in addition to the other
18
CamelBak argues that Customs rulings in the past have treated merchandise similar to that
at issue here as GRI 3(b) composite goods. See Pl.’s Brief at 10-12; Pl.’s Reply Brief at 4-5. The
analysis in those Customs rulings is less than rigorous, however, and often proceeded perfunctorily
to a GRI 3(b) analysis without first considering whether the goods at issue were classifiable pursuant
to GRI 1. In addition, the rulings did not consider the precise language of the headings and
subheadings at issue here. Moreover, the rulings lack any judicial imprimatur. Any reliance on the
rulings is therefore misplaced.
Court No. 05-00249 Page 20
cargo-carrying capabilities characteristic of traditional backpacks does not alter the merchandise’s
classification.
There is nothing about incorporating into a backpack a compartment designed to contain (and
maintain the temperature of) beverages that makes the backpack not a backpack. “An automobile’s
tariff classification does not differ depending on whether it is a stripped-down model designed solely
as basic transportation or a high-end luxury sedan supplied with every conceivable option and
amenity. See Heading 8703, HTSUS (covering ‘Motor cars and other motor vehicles principally
designed for the transport of persons . . . , including station wagons and racing cars’).” Pomeroy,
32 CIT at ____ n.20, 559 F. Supp. 2d at 1392 n.20. “Just as a ‘motor vehicle’ is a ‘motor vehicle,’”
so too a “backpack” is a “backpack,” no matter how simple or how elaborate it may be. See id.
“Nothing limits classification [as “travel, sports and similar bags” under subheading 4202.92] to
merchandise consisting of only that which is absolutely integral and indispensable to the function
of [carrying non-beverage cargo].” See id. “Similarly, the fact that [insulated beverage bags] would
be classifiable under [subheading 4202.92.04 or subheading 4202.92.08] if imported separately
(rather than incorporated into the [backpacks] at issue here) is of no moment.” See id. Merchandise
must be classified in the condition in which it is imported. See BASF Corp. v. United States, 497
F.3d 1309, 1314 (Fed. Cir. 2007) (citing United States v. Citroen, 223 U.S. 407, 414-15 (1912)).
In short, contrary to CamelBak’s claims, each of the items at issue as a whole is classifiable
as a “travel, sports [or] similar bag[ ]” under subheading 4202.92. Further, not even CamelBak
contends that each of the items at issue as a whole is classifiable as an “insulated food or beverage
bag[ ]” under subheading 4202.92. See, e.g., Pl.’s Brief at 15 (noting that CamelBak “does not
Court No. 05-00249 Page 21
dispute” Government’s statement that “the subject articles are not completely described as ‘insulated
food or beverage bags’”).19 Nor is the subject merchandise classifiable under either the subheading
covering “musical instrument cases” or the residual subheading, “other” – the only two additional
subheadings at the same level. See Subheading 4202.92; see also section III.A, supra. As such,
GRI 3 simply has no application here.
By its terms, GRI 3 applies only where “goods are, prima facie, classifiable under two or
more headings [or subheadings].” See GRI 3, HTSUS. As set forth above, however, each of the
items in dispute is, as a whole, prima facie classifiable as a “travel, sports [or] similar bag[ ]” under
HTSUS subheading 4202.92; and there are no other competing subheadings at the same level. There
is therefore no need to reach GRI 3(b) and its “essential character” test, which apply only where –
unlike here – there is no one tariff provision which covers the merchandise as a whole.
Finally, even assuming arguendo that CamelBak were correct in its assertion that neither the
subheading for “travel, sports and similar bags” nor the subheading for “insulated food or beverage
19
At times, CamelBak seems to waffle slightly on this point. See, e.g., Pl.’s Brief at 14 n.12
(noting that the Complaint included a count pleading that the merchandise is classifiable as
“insulated food or beverage bags” by application of GRI 1, but clarifying that “as counsel has . . .
more recently represented to [the] Court, CamelBak believes that GRI 3(b) . . . is the best approach
given the composite nature of the articles”); Pl.’s Reply Brief at 3 (stating that “[w]hile [CamelBak]
believe[s] the phrase ‘insulated food or beverage bags’ may be broad enough to contemplate an
insulated bag designed to store food or beverages and incidental effects, . . . this issue is more
appropriately analyzed under GRI 3”); id. at 8 (asserting that, although specified cases “support an
argument that the Hydration Systems are GRI 1 insulated food or beverage bags,” CamelBak
“maintains that the more correct path for determining classification of these articles runs through
GRI 3”) (emphasis omitted). Because it has not substantively briefed the point, CamelBak has
abandoned any argument that each of the items at issue, as a whole, is classifiable as an “insulated
food or beverage bag[ ].” But, in any event, as discussed in section III.A above, there is no merit
to the claim.
Court No. 05-00249 Page 22
bags” describes the merchandise at issue as a whole, GRI 3(b) and its “essential character” test
would nevertheless have no application. As noted above, there are four subheadings at the level
in dispute – “insulated food or beverage bags,” “travel, sports and similar bags,” “musical instrument
cases,” and “other.” See Subheading 4202.92, HTSUS. The merchandise plainly cannot be
described as “musical instrument cases.” Accordingly, if (as CamelBak maintains) neither “travel,
sports and similar bags” nor “insulated food or beverage bags” covered the whole of each of the ten
items, then the merchandise would be classified under the remaining subheading at that level – the
residual subheading covering “[o]ther” merchandise, which (like the subheading covering “travel,
sports and similar bags”) would ultimately render CamelBak’s merchandise dutiable at the rate of
17.8 %. See Subheading 4202.92, HTSUS.20 Contrary to CamelBak’s claims, there would be no
cause to reach GRI 3(b).
20
Specifically, in this hypothetical scenario, the merchandise at issue would be classified
under subheading 4202.92.90: “Trunks, suitcases . . . ; traveling bags, insulated food or beverage
bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases,
cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases,
cutlery cases, and similar containers, . . . of textile materials . . . : Other: With outer surface of
sheeting of plastic or of textile materials: Other: Other,” dutiable at 17.8 %.
Court No. 05-00249 Page 23
IV. Conclusion
For the foregoing reasons, the ten models of CamelBak merchandise at issue in this action
were properly classified as “Travel, sports and similar bags” under subheading 4202.92.30 of the
HTSUS. The Government’s motion for summary judgment is therefore granted, and CamelBak’s
cross-motion for summary judgment is denied. In addition, the Government’s Motion in Limine is
denied as moot.
Judgment will enter accordingly.
/s/ Delissa A. Ridgway
___________________________________
Delissa A. Ridgway
Judge
Decided: May 10, 2010
New York, New York