CLA-2 CO:R:C:T 955637 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 100/93; 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 Dorothy Gutterman of
Abbeville Press, regarding the classification of three articles
referred to as "1994 Desk Diaries." Three samples were sent to
this office for examination.
FACTS:
The subject merchandise consists of three hard-cover, spiral-
bound articles measuring approximately 8-3/4 inches by 10-3/4
inches. All three articles have the legend "1994 Desk Diary"
printed on their front covers and on their initial interior pages.
One book is entitled "The Art of Florence," the second is entitled
"Audubon's Birds of America," and the third is entitled "Orchids."
The spiral bindings on these articles are covered with fabric.
When opened, these articles display full-page photographs of famous
artwork, prints and flowers. The pages opposite the photographs
feature week planners in which each day of the week is allocated
approximately 2-1/2 inches by 3 inches of lined writing space.
This page also has a brief description of the photograph depicted
on the opposite page. Two "Month-at-a-Glance" calendars are also
featured on the week planner page. In addition to the photographs
and the week planners, the last few pages of these articles contain
"Year-at-a-Glance" calendars for the years 1994-1999, two pages of
"U.S. Weights and Measures" and "Metric Weights and Measures," a
temperature conversion chart, a map of the United States with area
codes, a listing of international telephone codes and two full-
size, blank pages entitled "Notes."
ISSUES:
Whether the articles at issue are classifiable as bound
diaries under subheading 4820.10.2010, HTSUSA, as articles "similar
to" diaries under subheading 4820.10.4000, HTSUSA, or as calendars
under subheading 4910.00.2000, 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 initiator of this request for internal advice suggests
that the merchandise at issue is properly classifiable under
subheading 4820.10.4000, HTSUSA, as articles "similar to" diaries
or, in the alternative, under subheading 4910.00.2000, HTSUSA, as
"calendars." The assertion that these articles are classifiable
as calendars of heading 4910, HTSUSA, is
discounted as the Explanatory Notes (EN) to heading 4910, HTSUSA,
specifically exclude:
(a) [M]emorandum pads incorporating calendars and diaries
(including so-called engagement calendars)(heading
4820). (emphasis added)
This office is of the opinion that the articles under review, as
well as articles similar in design and function which are often
referred to as "organizers," "day/week planners," and "agendas,"
are properly deemed "engagement calendars" or "engagement books"
and are therefore precluded from classification within heading
4910, HTSUSA. This determination is based on the fact that
engagement calendars or 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). The
articles at issue, although in this instance labeled "Desk
Diaries," are also intended for the recordation of appointments,
events, notations, etc., and are similar in both design and
function to articles synonymously referred to as day/week planners,
agendas, and engagement calendars.
The second issue raised, whether the articles at issue are
classifiable as "diaries" or as "similar to" diaries within heading
4820, HTSUSA, 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 covers and inside cover pages of the subject
merchandise with the legend "1994 Desk Diary." Although the
initiator of this request for internal advice discounts the
labeling of these articles as "Desk Diaries" by stating that "[T]he
only reason they [the articles] were called 1994 Diaries is that
our marketing people feel this has a more elegant and saleable ring
to it and the use of the word 'diary' is for marketing hype only,"
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 words "1994 Desk Diary" on articles that are not
recognized as diaries, merely to convey a sense of "elegance."
The fact remains that these articles must be considered a
recognized form of diary if a publisher in the industry labels them
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, comprehensive or, as the
inquirer described it, "elegant" 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 "Desk 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, 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 "1994 Desk Diaries" at issue contain allocated
spaces for daily entries. Moreover, the "Desk 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 referenced "1994 Desk Diaries" 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 on their covers as such. The type of paper used in
the "1994 Desk Diaries" 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 three styles of "1994 Desk Diaries," specifically entitled
"The Art of Florence," "Audobon's Birds of America," and "Orchids,"
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