CLA-2 CO:R:C:T 956135 SK
TARIFF No.: 4820.10.2010
Area Director
U.S. Customs Service
JFK Airport, Bldg. #77
Jamaica, N.Y. 11430
RE: Response to request for Internal Advice; IA 13/94; 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); 952691 (1/11/93); 953172 (3/19/93); 953413
(3/29/93); 955253 (11/10/93); 955199 (1/24/94); 955636 (4/6/94);
and 955637 (4/6/94); 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 the law firm of
Siegel, Mandell & Davidson, P.C., on behalf of the Metropolitan
Museum of Art, regarding the classification of an engagement book
described as the "Celebrating Impressionism: 1994 Art Book &
Engagement Book." A sample was sent to this office for
examination.
FACTS:
The subject merchandise consists of a spiral-bound
engagement book, measuring approximately 8 inches by 7-3/4
inches, entitled "Celebrating Impressionism: 1994 Art Book &
Engagement Book." The article features a two page written
introduction on Impressionism. When opened, these articles
display full-page photographs of famous artwork. The pages
opposite the paintings feature week planners in which each day of
the week is allocated approximately 1-1/8 inches by 6 inches of
writing space. This page also has a brief description of the
painting depicted on the opposite page. The last page of the
enagagement book contains a "Year-at-a-Glance" calendar for the
years 1994-1995,
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ISSUE:
Whether the articles at issue are classifiable as diaries of
subheading 4820.10.20, HTSUSA, as calendars of subheading
4910.00.20, HTSUSA, or as printed art and pictorial books of
subheading 4901.99.11, 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.
Our initial inquiry is whether the engagement book at issue
is properly classifiable as a diary under subheading
4820.10.2010, HTSUSA. Similar issues were examined 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); 9556636 (4/6/94);
and 955637 (4/6/94). 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, definitions of "diary" established by the
Court of International Trade and 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, all of which incorporated day
planners similar to those contained in the subject merchandise,
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 HRL 955637, Customs classified day planners that were similar
in design and function to the article currently under review.
The covers of the day planners classified in HRL 955637 were
conspicuously and indelibly printed with the legend "1994 Desk
Diary." As we noted in that ruling, it stands to reason that the
publisher would not have gone to the added expense of printing
"1994 Desk Diary" on these articles covers, nor risked alienating
potential customers, if the articles were not indeed recognized
as diaries in the marketplace. The fact remains that these
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types of articles must be considered a recognized form of diary
if a manufacturer in the industry labels the articles as such and
purposely presents them in such a manner to the consumer. This
fact is pertinent in the instant analysis because the articles
classified in HRL 955637 and the engagement book currently at
issue are similar in that both articles contain day/week planners
with spaces to record appointments and various notations, and
both engagement books were presented in similar formats: day/week
planners on one page with a photograph illustrating famous works
of art or flowers and accompanying text describing the photograph
on the opposite page.
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 advertisements
run in The New Yorker magazine earlier this year. The New
Yorker displayed full-page advertisements for its "1994 New
Yorker Desk Diary." The dairy depicted in the advertisement
appears similar to the article 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 function to the subject
engagement book. 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,
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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 article
at issue is properly classifiable as a bound diary of subheading
4820.10.2010, HTSUSA, inasmuch as its distinguishing feature is
its suitability for the receipt of daily written notations. As
with the articles at issue in Baumgarten, the Metropolitan Museum
of Art engagement book contains allocated spaces for daily
entries. Moreover, the engagement book at issue is larger and
contains 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 several pages of
information that is not directly related to the function of
receiving written notations about one's daily activities (in this
case, several pages of written material pertaining to the genre
of impressionism and specific works of art). The issue of
whether the presence of such extrinsic material (i.e.,
photographs, pictures, written commentary describing pictorial
content, 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."
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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 engagement book at issue fits the Oxford English Dictionary's
definition of diary and is 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 a bound diary 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 decision is significantly different from
the engagement book currently under review in several vital
aspects. 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). All of
the factors which precluded the article in Scribner's from
classification as a diary are absent in the instant case. Most
significant is the fact that the type of paper used in this
article is well-suited for writing. As noted above, the
determination in Scribner's that the article was not well-suited
for the receipt of written notations was the key factor in
deeming the article
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"not suitable as a diary." Moreover, the articles currently
under review are expressly marketed to consumers as engagement
books, and not as calendars. And lastly, the amount of space
allocated for the receipt of written notations 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..
Having established that the subject engagement book is
properly classifiable as a diary under subheading 4820.10.2010,
HTSUSA, we now address counsel's claim that this article is
classifiable under heading 4910, HTSUSA, as a calendar or, in the
alternative, under heading 4901, HTSUSA, as an art book. In
support of counsel's first contention, that the subject
merchandise is classifiable as a calendar, he states that the
language of heading 4910, HTSUSA, provides for calendars of any
kind, printed. He goes on to cite the definition of "calendar"
as set forth in Webster's New International Dictionary, which
reads:
"a tabular statement or register of the divisions
of a
given year, referring the days of each month to
the
days of the week."
Counsel contends that the subject article meets the definition of
a calendar and notes that this article is similar to wall
calendars which also allow the user to jot down notations in the
spaces for each day. He states that the availability of this
writing space does not render the item a diary; it does not meet
the common and commercial definition of a diary, nor is it
presented to the consumer as such. We disagree.
It is the opinion of this office that the subject engagement
book in no way performs the function of a calendar. The
essential purpose of a calendar is to demarcate and establish the
relative position of the days, weeks and months of a year with
regard to one another. Calendars are used to define time and
therefore are presented in a particular format which allows a
viewer to see dates in a particular sequence or relation to one
another. While we agree that calendars are sometimes used to jot
down appointments and reminders, etc., we stress that their
primary purpose is to allow the user of the calendar to ascertain
where a certain day falls in relation to the rest of the month
and/or year. We disagree that the subject engagement book is
similar to a wall calendar. Wall calendars may provide spaces
for written notations, but essentially they are designed to allow
the viewer to identify a particular date, and ascertain its
relation to other dates at a glance.
As stated supra, the primary purpose of a diary is to
provide a place for the receipt of daily or weekly notations,
events and appointments. Although the subject article does allow
the user to know the date, its design is not ideal for this
purpose, Rather, its primary function is to provide a situs for
written notations about one's activities. The primary
function of this engagement book squarely meets the definition of
"diary" as provided for above in both lexicographic and court
sources.
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Counsel also submits that this article belongs to a class or
kind of merchandise that is commonly bought and sold as a
calendar and that is how this item will be principally used.
Again, we disagree. It is our opinion that the expectations of a
consumer with regard to this book will be that of a planner; a
book to be used to notate events, etc... . The item does not
lend itself with ease to be used as a calendar. Moreover, it is
marketed and sold to consumers as an" Art Book & Engagement
Book." It is acknowledged that consumers tend to use articles is
the same manner as they are presented to them. Clearly, these
items are not labeled as calendars and, as we discussed supra,
engagement books are a recognized form of diary.
Lastly, and most persuasively, we note that the Explanatory
Notes (EN) to heading 4910, HTSUSA, explicitly exclude "diaries
(including so-called engagement calendars) (heading 48.20)." As
this article meets the definition of a diary, functions as such,
and is marketed to the consumer as an "engagement book," it is
effectively precluded from classification within this heading.
In the alternative, counsel submits that the subject
engagement book is classifiable under heading 4901, HTSUSA, as an
art and pictorial book. The EN to heading 4901, HTSUSA, state
that the heading includes books and booklets consisting
"essentially" of textual matter of any kind. Books which
essentially provide text are included within heading 4901,
HTSUSA. As the subject engagement book consists essentially of
pictures and blank spaces in which to write notations, it is
precluded from classification within this heading. The principal
use of this book is not to provide information about art, but
rather to provide an attractive format for keeping one's
appointments.
HOLDING:
Metropolitan Museum of Art's "Celebrating Impressionism: An
Art Book & Engagement Book" is 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
Commercial Rulings Division