CLA-2 CO:R:C:T 955516 SK
TARIFF NO.'s: 4820.10.2010; 4205.00.8000; 4823.51.0044
Area Director
U.S. Customs Service
J.F.K. Airport
Building 178
Jamaica, N.Y. 11430
RE: Decision on Application for Further Review of Protest No. 1001-
3-102939; classification of "Filofax"; organizer; day/week planner;
agenda; leather folder imported with inserts classifiable under
subheading 4820.10.2010; diary; folder and inserts imported
separately, classifiable under subheadings 4205.00.8000 and
4823.51.0044 respectively; EN to heading 4820; Note 9 to Chapter
48; HRL's 083204 (2/14/90); 089960 (2/10/92); 952691 (1/11/93);
953172 (3/19/93); 953413 (3/29/93); 955253 (11/10/93); 955199
(1/24/94); NYRL's 889677 (9/17/93); 858079 (12/10/90).
Dear Sir:
This is a decision on application for further review of a
protest timely filed on May 13, 1993, by Charles H. Bayar of the
law firm of Whitman & Ransom, on behalf of his client, Filofax
Inc., against your decision regarding the classification of
"Filofax" day/week planners, also referred to as organizers or
agendas. Eight entries of the subject merchandise were made at
the J.F.K. airport and the port at Newark, between the dates of
August 17, 1992, and December 8, 1992. These entries were
liquidated between February 12, 1993, and April 19, 1993. This
office did not receive a sample of the subject merchandise, but
protestant's submission did include photocopies of assorted styles
of "Filofaxes" with accompanying promotional and descriptive
literature set forth in the 1993 "Filofax" catalogue.
FACTS:
Filofax Inc. manufactures several styles of organizers. Most
feature loose-leaf ring binders covered with leather, and differ
only in size and color. The binders incorporate pen loops and
pockets for holding credit cards and papers, and feature snap
closures. The organizers at issue are filled with an assortment
of cut-to-size printed and pre-punched pages called "fills." The
majority of "fill" pages are printed on both sides with captions,
dates, lines, etc., and are designed to receive various kinds of
written entries.
The organizers are imported either with the "fills" already
inserted in the binder folders, or the binders and the paper
inserts are imported separately. The importer states that all the
entries the subject of this protest also include additional printed
materials that are not intended to be inserted into the folders.
These additional materials are imported and sold at retail as sets
or sections for updates and replacements.
ISSUES:
Whether the organizers at issue, if imported with their
prescribed inserts already in the binders, are classifiable as
bound diaries under subheading 4820.10.2010, HTSUSA, or as "other"
diaries and similar articles under subheading 4820.10.4000, HTSUSA?
What is the proper classification of the binders if imported
separately?
What is the proper classification of the inserts if imported
separately?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, taken in order.
Merchandise that cannot be classified in accordance with GRI 1 is
to be classified in accordance with subsequent GRI's.
- CLASSIFICATION OF THE "FILOFAX" WHERE LEATHER BINDER IS
IMPORTED WITH THE PRESCRIBED INSERTS ALREADY IN PLACE -
Heading 4820, HTSUSA, provides for, in pertinent part,
notebooks, memorandum pads, diaries and similar articles. At issue
is whether the articles in question fit the definition of "diary"
or whether these articles are more aptly described as articles
"similar to" diaries under subheading 4820.10.4000, HTSUSA.
Protestant submits that the "Filofax" organizers under review
are classifiable under subheading 4820.10.4000, HTSUSA, as articles
"similar to" diaries. In support of this contention, counsel for
the importer cites Headquarters Ruling Letter (HRL) 089960, dated
February 10, 1992, in which Customs classified several styles of
"leather agendas" similar in design and function to the "Filofaxes"
currently under review. Protestant states that Customs classified
the agendas in HRL 089960 as articles "similar to" diaries. A
reading of that ruling, however, yields the opposite conclusion.
In HRL 089960, this office relied on lexicographic sources in
making the determination as to what constituted a diary. The term
"dairy" as defined in the Compact Edition of the Oxford English
Dictionary, 1987, 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.
Three styles of leather agenda were at issue in HRL 089960. This
office held that the style with a ring binder was classifiable
under subheading 4820.10.2010, HTSUSA, which provides for bound
"diaries and address books." As this agenda was not an address
book, it is clear that Customs was classifying it as a diary. The
reason that one of the agendas in HRL 089960 was classified under
subheading 4820.10.2010, HTSUSA, and the other two under subheading
4820.10.4000, HTSUSA, was based on the distinction as to whether
the diaries were deemed bound or not. Customs determined that the
leather agenda with the ring binder was bound. The other two
agendas classified in HRL 089960 were not considered bound and were
therefore classified under subheading 4820.10.4000, HTSUSA. It is
imperative to recognize that Customs considered all three agendas
in HRL 089960 diaries; the difference in classification was a
function of whether the diaries were deemed bound. This analysis
has subsequently been followed in numerous rulings by Customs. See
HRL's 953172 (3/19/93); 953413 (3/29/93); and 955253 (11/10/93).
In HRL 955199, dated January 24, 1994, this office held that
Customs' classification of organizers as "diaries" accurately
reflected the common and commercial identity of these items in the
marketplace. In that ruling, we noted that The New Yorker magazine
regularly displayed full-page advertisements for its '1994 New
Yorker Desk Diary.' The advertised diary was similar in design and
function to organizers, planners and agendas. The advertisement's
copy read:
'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.'
As Customs unequivocally considers articles such as agendas,
organizers and planners to be diaries, and not merely articles
"similar to" diaries, your arguments contesting the proper
classification of articles "similar to" diaries are rendered moot.
Protestant also contends that if:
"... Filofax's organizers are deemed diaries, notebooks and
address books per se, Filofax asserts that organizers which
utilize a loose-leaf ring binder are not 'bound' within the
meaning of HTSUSA subheading 4820.10.20. [W]hile the
internationally-recognized Explanatory Notes to the
Harmonized Tariff Nomenclature state that goods classifiable in
Heading 4820 'may be bound with materials other than paper (e.g.,
leather, plastics or textile material)
and have reinforcements or fittings of metal, plastics,
etc.,' there is no definitive statement that loose-leaf ring
binders make 'bound' books. Filofax submits that
ring binders in general are materially different from 'bound'
books because their pages can be supplemented, removed and
reinserted, or rearranged according to
the individual user's desires and needs."
The Harmonized Commodity Description and Coding System
Explanatory Note 3 (EN) to heading 4820, page 687, which represents
the official interpretation of the HTS at the international level,
states that this heading includes:
"[B]inders designed for holding loose sheets, magazines, or
the like (e.g., binders, screw binders, ring binders), and
folders, file covers, files (other than box files) and
portfolios." [emphasis added]
As the "Filofax" diaries contain ring binders that hold loose
sheets in place, they are undoubtedly classifiable within heading
4820, HTSUSA. The next issue is whether ring binders make a diary
"bound" so as to warrant classification within subheading
4820.10.2010, HTSUSA. This office has consistently held that they
do. See HRL 089960 (2/10/92); 952691 (1/11/93); and 953172
(3/19/93). This position is supported by the EN to heading 4820,
HTSUSA, which state that "goods of this heading may be bound with
materials other than paper (e.g., leather, plastics or textile
material) and have reinforcements or fittings of metal, plastics,
etc." It is clear that metal binders were contemplated to fit
within this heading's definition of bound articles. We do not
agree with protestant's argument that merely because a metal loose-
leaf ring binder was not expressly cited as an exemplar of a
"bound" article in the EN to heading 4820, that it is precluded
from classification as such. Customs has noted many times in the
past that exemplars cited in the EN to a heading are not intended
to be all-inclusive. Rather, cited exemplars are intended to
provide guidance as to what type of articles are connoted by a
particular heading or subheading.
Protestant further submits that ring binders in general are
materially different from 'bound' books because pages in a ring
binder can be supplemented, removed and reinserted, or rearranged.
While this is true, this fact provides no basis for claiming that
an article secured with a ring binder is not "bound." Moreover,
protestant's rationale seems to run counter to the EN's description
of the type of materials which bind articles of heading 4820,
HTSUSA. Articles bound with "fittings of metal [or] plastics" are
expressly provided for in the EN and these types of binders are
usually intended to allow for the removal, addition or
rearrangement of the binders' inserts.
- CLASSIFICATION OF THE UNFILLED BINDERS IMPORTED SEPARATELY -
If the binders for the "Filofax" organizers are imported
separately from their prescribed inserts, classification of these
articles is proper under subheading 4205.00.8000, HTSUSA, which
provides for, "[O]ther articles of leather or of composition
leather." Customs has consistently held that leather binders
similar in design or function to the subject merchandise (with or
without ring binders) are classifiable in this subheading. See
New York Ruling Letter (NYRL) 889677, dated September 17, 1993, in
which a leather folder with three ring binder and inner pockets for
business cards and loose papers was classified under subheading
4205.00.8000, HTSUSA. See also NYRL 868086, dated November 11,
1991; NYRL 858079, dated December 10, 1990; and HRL 083204, dated
February 14, 1990.
- CLASSIFICATION OF THE "FILOFAX" INSERTS IMPORTED SEPARATELY -
Note 9 to Chapter 48 states that, "[H]eading 4820 does not
cover loose sheets or cards, cut to size, whether or not printed
or embossed or perforated." Protestant submits that this
preclusion does not pertain to the inserts at issue because,
although cut to size, printed and perforated, the inserts are not
"loose ... when used in the context of papers." Protestant cites
Webster's Third New International Dictionary, which defines "loose"
as follows:
2. not bound together: not brought together in a bundle,
container, or binding: not secured in a setting or
joined in a fixed combination." [emphasis added]
It is argued that the pages of the "Filofax" dated inserts are not
"loose" under this definition because the dating of the pages
serves to "join them in a fixed combination" inasmuch as each of
the pages of these inserts must remain precisely in dated order.
Protestant submits that "Filofax's" dated diary and planner inserts
therefore qualify as unbound "diaries" and warrant classification
under subheading 4820.10.4000, HTSUSA. We disagree. The
adjectival definition of "loose" as set forth in Webster's New
Collegiate Dictionary, 1977, reads:
1. "not rigidly fastened or securely attached."
The inserts at issue are clearly not rigidly fastened or secured
to any other object, nor to each other, except in a practical sense
(e.g., the loose pages of a calendar may only be of practical use
if assembled in a particular order). A reading of the word "loose"
in its context in Note 9 to Chapter 48 is revealing. It is this
office's opinion that the word "loose" is used in a physical sense.
The Note's use of other descriptive terms concerned with the
physical properties of the precluded sheets or cards (e.g., cut to
shape, printed, perforated) lends support to this rationale.
The inserts, if imported separately, are classifiable under
subheading 4823.51.0044, HTSUSA, which provides for, "[O]ther paper
and paperboard, of a kind used for writing, printing or other
graphic purposes: printed, embossed or perforated... hole-punched
looseleaf paper... ."
HOLDING:
The "Filofaxes" at issue, if imported with the binders filled
with their prescribed inserts, 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 leather binders, if imported unfilled, are classifiable
under subheading 4205.00.8000, HTSUSA, which provides for "[O]ther
articles of leather or of composition leather: other: other... ."
This is a duty free provision.
The inserts, if imported separately from the "Filofax"
binders, are classifiable under subheading 4823.51.0044, HTSUSA,
which provides for, "[O]ther paper and paperboard, of a kind used
for writing, printing or other graphic purposes: printed, embossed
or perforated... hole-punched looseleaf paper...," dutiable at a
rate of 3 percent ad valorem.
As the rate of duty under the classification indicated above
is the same as the rate under which the subject merchandise was
entered, you are instructed to deny the protest in full. A copy
of this decision should be furnished to the protestant with the CF
19 Notice of Action to satisfy the notice requirement of Section
174.30(a), Customs Regulations.
In accordance with Section 3(A)(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of these entries in accordance with this 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 take steps to make the decision available to Customs personnel
via the Customs Rulings Module in ACS and the public via the
Diskette Subscription Service, Lexis, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division
CLA-2 CO:R:C:T SK
DATE:
Mr. Charles H. Bayar
P.O. Box 4527, Grand Central Station
New York, N.Y. 10163
Dear Mr. Bayar:
This letter is in response to your request for a meeting
regarding your client's protest and application for further review,
referenced protest number 1001-3-102939, and Customs' treatment of
"Filofax" organizers for tariff classification purposes as set
forth in Headquarters Ruling Letter (HRL) 955516. In a telephone
conversation with an attorney in the textile classification branch,
Suzanne Karateew, you stated that your client may wish you to meet
with Customs on this matter. Several messages have been left with
your office in an effort to schedule an appointment for this
meeting. As of the date of this letter, Customs has not received
a reply from your office.
If Customs does not receive a response from you within thirty
(30) days from the date of this letter, we will issue our decision
in HRL 955516. Any questions or comments concerning this matter
may be directed to Suzanne Karateew at (202) 482-7050.
Sincerely,
John Durant, Director
Commercial Rulings Division