OT:RR:CTF:CPMM HQ H313493KSG
Port of Dallas/Ft. Worth
U.S. Customs and Border Protection
Attn: Konika Bradford, Import Specialist
Re: Protest and Application for Further Review No: 5501-20-102468; Classification of day planners
Dear Port Director:
The following is our decision as to Protest and Application for Further Review No. 550120-102468, timely filed by counsel on May 4, 2020, on behalf of Blue Sky. The Color of Imagination LLC ( “Protestant”), concerning classification of various planners under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise at issue was entered on July 8, 2019, and liquidated by U.S. Customs and Border Protection (CBP) at the Port of Dallas/ Ft. Worth (“the Port”) on November 15, 2019, as goods of subheading 4820.10.20, HTSUS, which provides for "Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, … of paper or paperboard; …: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles."
Protestant asserts that CBP’s classification of the subject merchandise at liquidation should be in subheading 4910.00.40, HTSUS, which provides for: "Calendars of any kind, printed, including calendar blocks: Printed on paper or paperboard in whole or in part by a lithographic process: Not over 0.51 mm in thickness."
The protestant submitted photographs of three sample planners: a daily planner; a weekly planner; and a "today and to do" planner. They all contain basic, grid calendar pages by date and month, as well as lines in the date grids, which are sized larger than 1 inch x 1 inch, to provide space to write in appointments, engagements, pages for jotting notes, thoughts and the like.
The weekly planner includes pages for listing favorite movies, expenses, a packing checklist and entertaining checklist etc. The “Today & To-Do” planner contains daily to-do list sections, a goal description page and “making it happen” pages, as well as many lined note pages. Counsel stated that the paper is under 0.51 mm in thickness.
Images submitted by counsel show that the day planner has three different pattern designs on the cover with two different interior size and style pages. The daily planner also contains sections for recording the importance of an appointment, values and “to-do” lists. The first style is 0.12mm in thickness and 7.4 inches x 9.5 inches in size. The boxes with the day's date are 1.625 inches x 1.438 inches. There is a page for listing top 5 values, passions, strength which provides 3.5 inches x 3.5 inches space for each value. One interior page submitted has a number followed by boxes that are 1.25 inches x 0.313 inches to put a check in the box that most describes a level of importance.
The other style of day planner is 0.12mm in thickness and 7.4 inches x 9.5 inches in size. The boxes with the day's date are 1.625 inches x 1.438 inches. There is a page for listing top 5 values, passions, strength which provides 3.5 inches x 3.5 inches space for each value. One interior page submitted has a number followed by boxes that are 1.25 inches x 0.313 inches to put a check in the box that most describes a level of importance.
Whether the article, as described above, is properly classified in heading 4820, HTSUS, as an engagement book or in heading 4910, HTSUS, as a calendar.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)
(B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 4601-15-101369 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision is inconsistent with a previous CBP decision with respect to substantially similar merchandise.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to GRIs 1 through 5.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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).
The HTSUS provisions under consideration in the instant case are as follows:
4820: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard:
4910: Calendars of any kind, printed, including calendar blocks: Printed on paper or paperboard in whole or in part by a lithographic process:
The EN for heading 4820 provides, in pertinent part, as follows:
This heading covers various articles of stationery, other than correspondence goods of heading 48.17 and the goods referred to in Note 10 to this Chapter. It includes :
(1) Registers, account books, notebooks of all kinds, order books, receipt books, copy books, diaries, letter pads, memorandum pads, engagement books, address books and books, pads, etc., for entering telephone numbers.
The EN for heading 4910 provides, in pertinent part, the following:
This heading relates to calendars of any kind whether they are printed on paper, paperboard, woven fabric or any other material, provided that the printing gives the article its essential character. They may contain, in addition to the normal sequence of dates, days of the week, etc., various other items of information, such as notes of important events, festivals, astronomical and other data, verses and proverbs. They may also incorporate pictorial or advertising matter. However, publications sometimes improperly called calendars which, although dated, are published essentially to give information concerning public or private events, etc., are classified in heading 49.01 (unless falling in heading 49.11 as publicity matter).
The heading, however, does not cover articles whose essential character is not determined by the presence of a calendar.
The heading also excludes:
(a) Memorandum pads incorporating calendars and diaries (including so-called engagement calendars) (heading 48.20).
Counsel cited to Headquarters Ruling Letter (HQ) 958153, dated January 19, 1996, which involved an article that was classified in heading 4910, HTSUS. However, it was clearly stated that the article was 3.5 inches by 6.5 inches and the boxes for each day were 1 inch square, providing very limited space for only the shortest of notations.
Counsel also cited to HQ 964849, dated August 4, 2001, classified a "Beauty Planner" in a ringed binder bound in PVC in heading 4820, HTSUS. The product also included pouches for various make-up products. Although the Beauty Planner includes a paper insert with a calendar, it is distinguishable from the instant case. The mere inclusion of a calendar with various other articles does not make it similar to the articles described in the facts above.
Lastly, counsel stated that the Commerce Department accepted the classification of these
articles in heading 4910, HTSUS, for the purposes of determining the applicability of antidumping duties. We find that the Commerce Department action to have no precedential value. Classification of imported articles is not within the jurisdiction of the Department of Commerce.
Lastly, the marketing of these articles as calendars, while a consideration, is not a determinative factor. In this case, all the articles provided boxes greater than 1 inch square for the dates and additional pages and space to list values, priorities, items of importance etc. as shown in the representative images. Both of these factors support CBP's conclusion that the planners are engagement books and therefore, are excluded from classification in Heading 4910 as engagement books according to the EN for heading 4910. See HQ 952920, dated March 22, 1993, where we stated “Engagement books are, as their name implies, articles used for the recordation of information relating to daily or weekly engagements (i.e., appointments and various notations associated with one’s daily or weekly activities.).” See Also HQ 081591, dated April 24, 1989; HQ 952920, dated March 22, 1993; HQ 955637, dated April 6, 1994; HQ 956135, dated August 4, 1994 and HQ 956934, dated December 19, 1994.
By application of GRIs 1 and 6, the planners described above are classified in heading 4820, HTSUS, specifically in subheading 4820.10.40, HTSUS, which provides for “Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Other."
The 2020 general column one rate of duty for subheading 4820.10.40, HTSUS, is Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts.
You are instructed to DENY the Protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook
(HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Craig T. Clark, Director
Commercial and Trade Facilitation Division
cc: NIS Charlene Miller, NCSD Division