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HQ 965938




March 4, 2003

CLA-2 RR:CR:GC 965938 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.11.00; 4202.12.80; 4202.92.30

Port Director
U.S. Customs Service
605 W. Fourth Avenue
Anchorage, Alaska 99501

RE: Protest 3195-02-100082; Carrying Cases for Notebook Computers

Dear Port Director:

This is our decision regarding Protest 3195-02-100082, filed on behalf of Dell Computer Corporation (“protestant” or “Dell”), concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain carrying cases. In addition to Dell’s written protest submission, we have considered the claims and statements made in the telephone conference held on December 16, 2002.

FACTS:

The file reflects the following. The 51 entries at issue were filed between April 20, 2001 and June 21, 2001. The subject entries were liquidated between February 22, 2002 and May 3, 2002. The protest was filed on May 14, 2002.

The protestant claims classification of the carrying cases in subheading 8471.30.00, HTSUS. The entries were liquidated under subheading 4202.91.00, HTSUS (for the leather carrying cases) and subheading 4202.92.90, HTSUS (for the nylon carrying cases).

The protestant describes the carrying cases as follows:

The models of nylon carrying cases that are the subject of this protest are: 2509T, 3C405, 7243C, and OF437. The models of leather carrying cases that are the subject of this protest are: 9243C, 3509T, and OF452.

Each model of notebook computer carrying case that is the subject of this protest is specifically designed to fit the model of notebook computer with which it is imported. The carrying case has the appropriate dimensions (length, width, and depth), and the appropriate interior padding, for the computer that it carries to fit snugly and safely inside. The carrying case also has inside and outside pockets designed specifically to contain the accessories that come with the notebook computer. The models of carrying cases that are the subject of this protest, were tested and evaluated to ensure that the notebook computer and its accessories could be safely stored and transported in the case. Additionally, each of the subject notebook computer carrying cases has the Dell trademark logo affixed to its exterior.

With respect to the specific style numbers and amount of carrying cases imported, the protestant states as follows. The only carrying cases which are imported are those which are sold as accessories to specific laptop computers. There may be more laptop computers than carrying cases in a particular shipment because of the purchase of those computers without carrying cases.

The protestant states that each model of carrying case goes through a rigorous “drop testing” process for the purpose of determining whether that carrying case model is adequate for the protestant’s needs. The protestant states that this “drop testing” goes to the size and fit of the carrying case, i.e., the laptop computer must fit snugly and securely in the carrying case in order for damage to be avoided in the “drop test.”

Samples of five of the seven subject items were submitted to Customs.

ISSUE:

What is the classification under the HTSUS of the carrying cases?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). 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’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s 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.

The HTSUS provisions under consideration are as follows:

4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, 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:

Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers

4202.11.00 With outer surface of leather, of composition leather, or of patent leather

4202.12 With outer surface of plastics or of textile materials:

With outer surface of textile materials:

4202.12.80 Other

Other:

4202.91.00 With outer surface of leather, of composition leather or of patent leather

4202.92 With outer surface of sheeting of plastic or of textile materials:

Travel, sports and similar bags:

With outer surface of textile materials:

4202.92.30 Other

Other:

4202.92.90 Other

8471 Automatic data processing machines and units thereof . . . :

8471.30.00 Portable digital automatic data processing machines, weighing not more than 10 kg, consisting of at least a central processing unit, a keyboard and a display

GRI 5(a) provides as follows:

(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character;

The Explanatory Note for Rule 5(a) provides as follows:

(I) This Rule shall be taken to cover only those containers which :

(1) are specially shaped or fitted to contain a specific article or set of articles, i.e., they are designed specifically to accommodate the article for which they are intended. Some containers are shaped in the form of the article they contain;

(2) are suitable for long-term use, i.e., they are designed to have a durability comparable to that of the articles for which they are intended. These containers also serve to protect the article when not in use (during transport or storage, for example). These criteria enable them to be distinguished from simple packings;

(3) are presented with the articles for which they are intended, whether or not the articles are packed separately for convenience of transport. Presented separately the containers are classified in their appropriate headings;

(4) are of a kind normally sold with such articles; and

(5) do not give the whole its essential character.

(II) Examples of containers, presented with the articles for which they are intended, which are to be classified by reference to this Rule are :

(1) Jewellery boxes and cases (heading 71.13);

(2) Electric shaver cases (heading 85.10);

(3) Binocular cases, telescope cases (heading 90.05);

(4) Musical instrument cases, boxes and bags (e.g., heading 92.02);

(5) Gun cases (e.g., heading 93.03).

(III) Examples of containers not covered by this Rule are containers such as a silver caddy containing tea, or an ornamental ceramic bowl containing sweets.

The protestant claims that GRI 5(a) applies such that the carrying cases are classified with its notebook computers. For GRI 5(a) to apply, its terms must be met. Further, as EN (I) for GRI 5(a), excerpted above, provides, GRI 5(a) applies only to those containers which meet criteria (1) through (5) of that EN.

After careful consideration, we make the following findings.

With respect to the requirement of GRI 5(a) EN(I)(3) that GRI 5(a) “shall be taken to cover only those containers which . . . are presented with the articles for which they are intended . . .”, we will accept the protestant’s statement that the shipments at issue in this protest contained only carrying cases which were ordered together with the laptop computers, i.e., those carrying cases which were sold as accessories to specific laptop computers which were in the same shipment. Accordingly, we find that the criterion of EN (I) (3) is satisfied with respect to the goods in this protest.

GRI 5(a) EN (I)(4) provides that GRI 5(a) “shall be taken to cover only those containers which . . . are of a kind normally sold with such articles . . .” GRI 5(a) provides in pertinent part that certain cases “. . . shall be classified with such articles [the articles with which they were entered] when of a kind normally sold therewith.” [Emphasis supplied.] (See also GRI 5(a) EN(I)(4).) The underlined language is important because it serves to establish that the relevant inquiry with respect to the applicability of GRI 5(a) is with respect to the general “kind” or class of merchandise. For example, the “normally sold with” inquiry of GRI 5(a) EN (I)(4) is with respect to industry practice, as opposed to the protestant’s practice. We have no evidence, nor has evidence been presented, of the commercial reality of the laptop computer industry with respect to whether carrying cases are normally sold with laptop computers. Therefore, we determine that this criterion of EN (I)(4) has not been met. We note that the carrying cases are not “sold with” the carrying cases in the sense that they are not inextricably part of the purchase of the notebook computer. The carrying cases are accessories that the notebook computer purchaser may or may not choose to purchase. We believe that this is the typical industry practice.

GRI 5(a) requires that the carrying cases be “specially shaped or fitted to contain a specific article or set of articles” within the meaning of the text of GRI 5(a) and within the meaning of EN (I)(1) for GRI 5(a). We have no doubt that the carrying cases are used for notebook computers. However, they are designed to carry many other goods as well, making them similar to briefcases or general carrying cases. Most of the subject carrying cases are fitted with interior straps and padding as well as additional compartments. The carrying cases contain numerous compartments in which items smaller than a computer may be placed, e.g., pens, business cards, hand-held devices, etc. Further, we believe it is possible that the subject carrying cases may be used to carry various types or models of laptop computers, i.e., we believe that the sizes of certain types of laptop computers may be similar enough such that the uses of the subject carrying cases would not have to be confined to one specific type of laptop computer. A reasonable consumer could choose to purchase this general class of goods for the purpose of carrying goods other than a computer. Therefore, we are not convinced that the subject carrying cases are specially shaped or fitted within the meaning of GRI 5(a) and EN(I)(1) for GRI 5(a).

Accordingly, based upon the above findings, we determine that the subject carrying cases do not qualify for treatment under GRI 5(a). We note that our findings in making this determination, as stated above, cast significant doubt as to whether the general class of carrying cases for laptop computers would be able to meet the criteria necessary for GRI 5(a) to be applicable.

In support of its position that GRI 5(a) is applicable, the protestant cites HQ 964149 dated February 11, 2002, which involved the classification of a textile container for a portable video player. We find the facts in HQ 964149 to be distinguishable from those here in that the container in HQ 964149 was clearly specially shaped and fitted for the video player at issue, i.e., we do not think that container could be effectively used for other items. The container in HQ 964149 was described in part as follows: “The mesh panels are specifically located to allow the sound to be heard from the speakers . . . The container has gussets which are only useful for angling the player for the correct viewing angle in a vehicle and also allowing the sound to be heard through the speaker. The container has metal loops for securing it to a vehicle and an opening in the bottom through which the power cord may be attached.” We believe that the special shaping and the fitting of the container in HQ 964149 is comparable to the special shaping and the fitting of the articles enumerated in EN (II) to GRI 5(a), e.g., musical instrument cases, binocular cases, telescope cases, etc. We do not believe that the textile container for a portable video player could reasonably be used to contain articles other than the portable video player. We do not believe that the subject carrying cases have nearly the same degree of special shaping or fitting as the container in HQ 964149 and the articles enumerated in EN (II) to GRI 5(a).

We determine that six of the seven subject carrying cases (i.e., models 2509T, 7243C, OF437, 9243C, 3509T, and OF452) are described in heading 4202, HTSUS, as briefcases and/or attache cases or similar containers.

Models 9243C, 3509T, and OF452 are classified in subheading 4202.11.00, HTSUS, as: “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of leather, of composition leather, or of patent leather.” We note that the rate of duty for subheading 4202.11.00, HTSUS, is higher than the rate of duty for the provision (subheading 4202.91.00, HTSUS) under which these three models were liquidated.

Models 2509T, 7243C, and OF437 are classified in subheading 4202.12.80, HTSUS, as: “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of plastics or textile materials: With outer surface of textile materials: Other.”

We determine that the seventh carrying case (model 3C405) is described in heading 4202, HTSUS, as a traveling bag and/or backpack. It is classified in subheading 4202.92.30, HTSUS, as: “. . . traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks . . . : Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other.”

HOLDINGS:

Models 9243C, 3509T, and OF452 are classified in subheading 4202.11.00, HTSUS, as: “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of leather, of composition leather, or of patent leather.” We note that the rate of duty for subheading 4202.11.00, HTSUS, is higher than the rate of duty for the provision (subheading 4202.91.00, HTSUS) under which these three models were liquidated.

Models 2509T, 7243C, and OF437 are classified in subheading 4202.12.80, HTSUS, as: “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of plastics or textile materials: With outer surface of textile materials: Other.”

Model 3C405 is classified in subheading 4202.92.30, HTSUS, as: “. . . traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks . . . : Other: With outer surface of sheeting of plastic or of textile materials: Travel, sports and similar bags: With outer surface of textile materials: Other.”

You are instructed to DENY in full the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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