CLA-2 CO:R:C:T 956429 SK
Maureen Shoule
J.W. Hampton, Jr. & Co., Inc.
15 Park Row
New York, N.Y. 10038
RE: Classification of bound diaries; 4820.10.2010, HTSUSA;
engagement books; organizers; day/week planners; agendas; HRL
089960 (2/10/92); Fred Baumgarten v. United States, 49 Cust. Ct.
275, Abs. 67150 (1962); Brooks Bros. v. United States, 68 Cust.
Ct. 91, C.D. 4342 (1972); Charles Scribner's Sons v. United States,
574 F. Supp. 1058; 6 C.I.T. 168 (1983).
Dear Ms. Shoule:
This ruling is in response to your request for a binding
classification ruling on behalf of your client, F.W. Woolworth Co.,
regarding the classification of two articles labeled "Business
Organizers." Two samples were sent to this office for examination.
FACTS:
The two samples at issue are referenced "A104 Medium Size"
and "A106 Large Size," and are labeled "Business Organizers." A104
measures 7-3/4 inches by 5-1/2 inches. A106 measures 9-3/8 inches
by 7-1/4 inches. Both articles feature loose-leaf ring binders
covered with imitation leather and have snap closures. The binders
incorporate two sheets of plastic with pockets for holding credit
cards, a zip-lock plastic bag for holding pens or other
miscellaneous articles, a plastic ruler, a blank, ruled note pad
inserted into a slot in the back cover, and assorted paper inserts.
The paper inserts are comprised predominantly of pages printed
on both sides with captions, dates, lines, etc., and are designed
to receive various kinds of written entries. The various sections
are entitled "Telephone/Address," "Calendar," "Daily," and
"Meetings/Notes." The "Calendar" section begins with year-at-a-
glance calendars for the years 1993-1995. Subsequent pages are in
appointment calendar format (i.e., with blank rectangular spaces
captioned with the days/dates of a given year). The "Daily"
section contains ruled pages with spaces reading: "Things To Do,"
"Date," "Priority," "Expenses," and "Amount."
ISSUES:
Whether the articles at issue are classifiable as bound
diaries under subheading 4820.10.2010, HTSUSA, or as articles
"similar to" diaries under subheading 4820.10.4000, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is in accordance
with the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that classification shall be determined according
to the terms of the headings and any relative section or chapter
notes.
The determinative issue in the instant case is whether the
subject organizers are classifiable as "diaries" or as "similar
to" diaries within heading 4820, HTSUSA. This issue has been
addressed in several rulings by this office. See Headquarters
Ruling Letters (HRL's) 089960 (2/10/92); 952691 (1/11/93); 953172
(3/19/93); 953413 (3/29/93); 955253 (11/10/93); 955199 (1/24/94);
955636 (4/6/94); 955637 (4/6/94); and 955516 (4/8/94). In these
rulings, this office has consistently determined that various
articles similar in design and/or function to the instant
merchandise are classifiable as diaries. The rationale for this
determination was based on lexicographic sources, as well as
extrinsic evidence of how these types of articles are treated in
the trade and commerce of the United States. In all of these
rulings, Customs determined that articles synonymously referred to
as diaries, planners, agendas, organizers and engagement books,
most of which incorporated the same or similar components as the
subject merchandise (i.e., day/week planners, address/telephone
sections, blank sections for notes), fit squarely within the
definition of "diary" as set forth in the Compact Edition of the
Oxford English Dictionary, 1987. That definition reads:
2. A book prepared for keeping a daily record, or
having spaces with printed dates for daily memoranda
and jottings; also applied to calendars containing
daily memoranda on matters of importance to people
generally or to members of a particular profession,
occupation, or pursuit.
The narrower definition of "diary," which connotes an article
containing blank pages used to record extensive notations of one's
daily activities, is not the sole format for this article. The
word "diary" also connotes a more formal, comprehensive approach
to recordkeeping. The broader concept of diary not only includes
articles such as the subject merchandise, but also includes
articles such as those depicted in current advertisements run in
The New Yorker magazine. The New Yorker regularly displays full-
page advertisements for its "1994 New Yorker Desk Diary." The
dairy depicted in the advertisement is similar in function to the
articles currently under review and the advertisement's copy reads:
"Since you depend on a diary every day of the year,
pick the one that's perfect for you ... [R]ecognize
what's important to you: a week at a glance, a ribbon
marker, lie flat binding (spiral), lots of space to
write."
This advertisement supports Customs' classification of these types
of articles as diaries, and is also substantive proof that the
commercial identity of these items in the marketplace is that of
a diary.
The Court of International Trade has also spoken to the issue
of what constitutes a diary for classification purposes. In Fred
Baumgarten v. United States, 49 Cust. Ct. 275, Abs. 67150 (1962),
the court dealt with the classification of a plastic-covered book
which was similar in function to the articles currently under
review. In Baumgarten, the court determined the correct
classification of an article which measured approximately 4-1/4
inches by 7-3/8 inches and contained pages for "Personal
Memoranda," calendars for the years 1960-1962, statistical tables,
and 20-odd pages set aside for telephone numbers and addresses.
The majority of the book consisted of ruled pages allocated to the
days of the year and the hours of the day. A blank lined page,
inserted at the end of each month's section, was captioned "Notes."
The court held that this article was properly classified by Customs
under item 256.56, Tariff Schedules of the United States, which
provided for "[B]lank books, bound: diaries," at a duty rate of 20
percent ad valorem. In that ruling, the court held:
"the particular distinguishing feature of a diary is
its suitability for the receipt of daily notations;
and in this respect, the books here in issue are well
described. By virtue of the allocation of spaces for
hourly entries during the course of each day of the
year, the books are designed for that very purpose.
That the daily events to be chronicled may also include
scheduled appointments would not detract from their general
character as appropriate volumes for the recording of
daily memoranda."
The Baumgarten Court's analysis, if applied to the merchandise at
issue, yields a similar finding: the articles at issue are properly
classifiable as bound diaries of subheading 4820.10.2010, HTSUSA,
inasmuch as their distinguishing feature is their suitability for
the receipt of daily notations. As with the articles at issue in
Baumgarten, the subject organizers contain allocated spaces for
daily entries. Moreover, these organizers contain even more
available writing space than did the articles deemed to be diaries
in Baumgarten, arguably rendering them even more suitable for "the
receipt of daily notations."
As stated supra, the court in Baumgarten determined that the
distinguishing feature of a diary is its suitability for the
receipt of daily notations. The merchandise at issue, as is the
case with most articles described as planners, organizers, agendas,
engagement books, etc., contains miscellaneous material which
obviously is not intended as a site for the receipt of written
notations (i.e., plastic card holders, pen pouch, ruler, etc...).
The issue of whether the presence of such extrinsic material
precludes classification as a diary was discussed in Brooks Bros.
v. United States, 68 Cust. Ct. 91, C.D. 4342 (1972). In that case,
the court dealt with the proper classification of an article
described as "The Economist Diary." The plaintiff in Brooks Bros.
argued that although "The Economist Diary" was in part a diary, it
contained many pages useful solely for the information presented
and therefore was not classifiable as a bound diary, but rather as
a book consisting of printed matter or, in the alternative, a bound
blank book. The court noted:
[N]otwithstanding plaintiff's efforts to demonstrate
that the Economist Diary is not a diary but a 'book of
facts,' an examination of the diary reveals that there
are more blank pages, used for recording events and
appointments, than there are pages containing
information. Admittedly, it is offered and sold as a
diary... [T]he article is a diary which contains
certain informational material in order to render it more
useful to the particular class of buyers it
seeks to attract. It is to be noted that the exhibits
introduced at the trial, that are conceded to be
'diaries,' also contain 'informational material,' ...
[T]his additional material admittedly does not change
their essential character as 'diaries."
The Brooks Bros. Court concluded that "The Economist Diary" was
properly classified by Customs as a diary and that this conclusion
was "strengthened by the fundamental principle of customs law that
an eo nomine designation of an article without limitation includes
all forms of that article." As subheading 4820.10.2010, HTSUSA,
eo nomine provides for bound diaries, and the articles at issue
referenced A104 and A106 fit the Oxford English Dictionary's
definition of diary and are similar in function to the articles the
courts in Baumgarten and Brooks Bros. found to be bound diaries,
this office is of the opinion that the subject merchandise is
properly classifiable as bound diaries under this subheading.
We think it imperative to recognize that there are many forms
of "diaries." Many are similar to the instant articles. Others,
may be bound with expensive materials such as leather and may
contain additional components such as pens, pencils, calculators
and assorted inserts that are used either for providing information
or as a means of recording specific types of information (i.e.,
sections for fax numbers, car maintenance information, personal
finance data, etc. ...). As the court in Brooks Bros. noted,
citing Hancock Gross, Inc. v. United States, 64 Cust. Ct. 97, C.D.
3965 (1970), "[T]he primary design and function of an article
controls its classification." Hence, the determinative criteria
as to whether these types of articles are deemed "diaries" for
classification purposes is whether they are primarily designed for
use as, or primarily function as, articles for the receipt of daily
notations, events and appointments.
Lastly, we note that the decision rendered in Charles
Scribner's Sons, Inc. v. United States, 574 F. Supp. 1058; C.I.T.
168 (1983), is not precedential in this instance in that the
article at issue in that case is significantly different than
styles A104 and A106. At issue in Scribner's was whether an
article described as the "Engagement Calendar 1979" was a calendar
or a diary for classification purposes under the TSUSA. The
article under consideration in that case was described as a spiral-
bound desk calendar with high-quality Sierra Club photographs
featured on the left side of the opened calendar, and a table of
days of the week on the right side. The article measured
approximately 9-3/8 inches by 6-1/2 inches and the space allotted
for each day of the week measured approximately one inch by 4-
13/16 inches. The article was made of titanium-coated paper which
was specifically chosen because it was best-suited for photographic
reproduction. Plaintiff's witness in that case testified that
although Charles Scribner's Sons, Inc. had received numerous
complaints that the paper was not well-suited for writing, the
plaintiff chose not to change the paper because the primary
objective was to accentuate the photographs. Another witness for
the plaintiff testified that the desk calendar had been marketed
throughout the country as a calendar "because it was not suitable
as a diary." The suitability determination, or lack thereof, was
based on the quality of paper used (as stated, it was not
appropriate paper for the receipt of written notations) and the
quantity of writing space available. In the instant case, the
type of paper used in style A104 and A106 is well-suited for
writing. And finally, the amount of space allocated for the
recordation of notes, events and appointments is presumably
adequate inasmuch as it is at least as great as that provided for
in the articles held to be diaries in both Baumgarten and Brooks
Bros..
The court in Scribner's stated that as the courts in
Baumgarten and Brooks Bros. did not "distinguish between a diary
and a calendar ... they do not govern the result in the present
case." Similarly, this office is of the opinion that as the issue
in Scribner's was whether an article was a calendar or a diary, and
the issue in the present case is whether the articles are diaries
or "similar to" diaries, Scribner's is not precedential in this
instance. The courts' decisions in Baumgarten and Brooks Bros. are
pertinent to our determination because those cases focus on the
specific issue of what constitutes a diary for tariff
classification purposes.
HOLDING:
The two styles of "Business Organizers," referenced style A104
and A106, are classifiable under subheading 4820.10.2010, HTSUSA,
which provides for, inter alia, bound diaries and address books,
dutiable at a rate of 4 percent ad valorem.
The designated textile and apparel categories may be
subdivided into parts. If so, the visa and quota requirements
applicable to the subject merchandise may be affected. Since part
categories are the result of international bilateral agreements
which are subject to frequent renegotiations and changes, to obtain
the most current information available we suggest you check, close
to the time of shipment, the Status Report on Current Import Quotas
(Restraint Levels), an internal issuance of the U.S. Customs
Service which is updated weekly and is available for inspection at
your local Customs office.
Due to the nature of the statistical annotation (the ninth
and tenth digits of the classification), you should contact your
local Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director