> **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]{.underline} 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