CLA-2 CO:R:C:T 955636 SK
TARIFF No.: 4820.10.2010
Assistant Area Director
Commercial Operations
U.S. Customs Service
New York Seaport
6 World Trade Center
New York, N. Y. 10048
RE: Response to request for Internal Advice; IA 101/93; 19 CFR
177.11(b); 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 Sir:
This ruling is in response to a request for internal advice
pursuant to 19 CFR 177.11(b), initiated by Victoria Solin of
Para/Graf, regarding the classification of two articles referenced
the "A4 Architects & Designers Diary 1993" and the "1994 United
States Marine Corps Diary." A sample of each item was sent to this
office for examination.
FACTS:
The subject merchandise consists of two hard-cover, bound
articles referenced the "A4 Architects & Designers Diary 1993" and
the "1994 United States Marine Corps Diary" (hereinafter referred
to as the "A & D Diary" and the "USMC Diary" respectively). The
"A & D Diary" measures approximately 8-1/2 inches by 12 inches, and
the "USMC Diary" measures approximately 6-3/4 inches by 9-3/4
inches. The "A & D Diary" bears the legend "A4 Architects &
Designers Diary 1993" printed on its front, cloth cover, interior
cover page and on its order forms for the 1994 edition. The "USMC
Diary" has "1994 United States Marine Corps Diary" printed on its
interior cover page and on its order forms for the 1995 edition.
Both articles have ribbon markers and contain sections for
addresses and telephone numbers, year planners, and blank sections
for notes. The "A & D Diary" contains a section with literature,
photographs and blueprints focusing on the architectural aspects
of various Walt Disney buildings. It also contains a table
entitled "weights and measures," "proof correction marks,"
"international paper sizes" and a "Le Corbusier modular." The
"USMC Diary" contains a section of literature and photographs
dealing with military helicopters, a "Commandant's reading list,"
listings of Marine Corps Associations and Generals, and a section
entitled "Personal" which provides space for written notations
concerning one's medical care providers, lawyer, bank, type of
rifle/pistol, and health information. The great majority of both
of these articles is comprised of day planners in which each day
of the week is allocated approximately 2-1/4 inches by 5-1/2 inches
of unlined, blank writing space in the "A & D Diary" and 2-1/8
inches by 5 inches of lined writing space in the "USMC Diary."
ISSUE:
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 is whether the subject merchandise is
classifiable as bound "diaries" under subheading 4820.10.2010,
HTSUSA, or as "similar to" diaries under subheading 4820.10.4000,
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); and 955199 (1/24/94). 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, maps of the U.S.
with area codes, 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.
Moreover, in recent rulings this office noted that Customs'
classification of these types of articles as diaries reflects the
common and commercial identity of these items in the marketplace.
In the instant case, this is evidenced most persuasively by the
fact that the publisher of the articles at issue has indelibly
printed the cover of the "A & D Diary" with the legend "A4
Architects & Designers Diary 1993" and the interior cover pages of
both articles refer to these items as "diaries." It stands to
reason that the publisher would not go to this added expense, nor
risk alienating potential customers, if the articles were not
indeed recognized as diaries in the marketplace. This office
seriously doubts that the publisher of this merchandise would print
the word "diary" on articles that are not recognized as diaries.
The fact remains that these articles must be considered a
recognized form of diary if a publisher in the industry labels the
articles as such and purposely presents them in such a manner to
the consumer.
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 and comprehensive approach
to recordkeeping. The broader concept of diary not only includes
articles such as the subject merchandise, which are explicitly
presented to the consumer as "diaries," 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 appears similar to the articles
currently under review both in form and function 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."
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 overall design and 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 and holding, 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 "A & D Diary" and the "USMC
Diary" at issue contain allocated spaces for daily entries.
Moreover, these diaries are larger and contain even more available
writing space than did the articles deemed to be diaries in
Baumgarten, arguably rendering the subject merchandise 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 pages of statistical information
and printed data which obviously are not intended as sites for the
receipt of various notations. The issue of whether the presence
of such extrinsic material (i.e., weights and measure charts,
conversion charts, "Year-at-a-Glance" calendars, maps, telephone
codes, etc. ...) 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 fit the Oxford English Dictionary's
definition of diary, are explicitly marked and presented to the
consumer as such, and are similar in design and 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,
business card holders 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 the instant case in that the
article at issue in that case is significantly different than the
articles currently the subject of this request for internal advice.
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.
All of the factors which precluded the article in Scribner's from
classification as a diary are absent in the instant case. The
articles at issue are undeniably marketed as diaries since they are
clearly marked as such. The type of paper used in these articles
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 focused on the
specific issue of what constitutes a diary for tariff
classification purposes. Moreover, the articles determined to be
diaries in those two cases bear a strong resemblance in both form
and function to the merchandise currently under review.
HOLDING:
The "A4 Architects & Designers Diary 1993" and the "1994
United States Marine Corps Diary" 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.
This decision should be mailed by your office to the internal
advice requestor no later than 60 days from the date of this
letter. On that date, the Office of Regulations and Rulings will
take steps to make the decision available to Customs Personnel via
the Customs Ruling Module in ACS and to the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act (FOIA), and
other public access channels.
Sincerely,
John Durant, Director