CLA-2 RR:CR:TE 967329 GGD
Vincent Bowen, Esquire
Counsel to Global Sourcing Group, Inc.
2515 K Street, N.W., Suite 101
Washington, D.C. 20037
RE: Binders Wholly or Mainly Covered with Leather, Sheeting of plastics, etc.;
Imported Without Stationery Goods; Headings 4205 and 3926
Dear Mr. Bowen:
This letter is in response to your requests of June 3, 2004, and July 21, 2004, on behalf of your client, Global Sourcing Group, Inc., concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of four styles of ring binders imported without stationery inserts. The merchandise is manufactured in China and samples were submitted with your initial request. Subsequent to the requests and submission, a teleconference was held with Headquarters personnel on October 22, 2004.
FACTS:
The four sample articles at issue, which will be sold, marketed, and referred to as “binders” and/or “planners,” are identified by SKU numbers 10227, 097B/1, 4422022B, and 143A/1. Each of the binders consists essentially of a ring binder with jacket. Each measures approximately 9-1/2 inches in height by 8 inches in width by 2 inches in depth at the spine when closed (although only two of the binders can be secured in the closed position). Each is constructed with a base consisting of a paperboard stiffener that is covered on the exterior and interior surfaces with either fabric-backed, cellular plastic sheeting and textile material (i.e., 10227 and 097B/1); or with leather and textile material (i.e., 4422022B and 143A/1). There is a layer of plastic
-2-
foam material between the exterior surfaces and the paperboard stiffeners. The interior right side of each article features a sleeve (143A/1 features two) into which may be slipped the back of a writing pad, papers, or other flat items. Each article incorporates one or two tubular-shaped pen loops, and a metal, seven ring, binder mechanism that is riveted to the interior spine. The rings each measure approximately 1-3/4 inch in diameter.
The surface material of SKU 10227 is composed mainly of cellular polyurethane (PU) plastic sheeting which simulates leather. The plastic is backed with a nonwoven fabric. The surface material of 097B/1 is composed mainly of cellular polyvinyl chloride (PVC) plastic sheeting, and also is backed with a nonwoven textile fabric. The fabric backing, in each instance, is present for mere reinforcement. The interior left side of each of these two styles features a flap which measures approximately 8 inches in height by 5 inches in width, and contains several slots for holding cards and/or other small flat items. Papers or larger flat items may also be inserted beneath the flap. SKU 10227 has two pen loops, two molded plastic dividers (held in place by the binder mechanism), and no means to secure the article in the closed position. SKU 097B/1 has one pen loop, no dividers, and the article can be secured in the closed position by a strap with a snap tab closure.
The surface materials of both SKU 4422022B and 143A/1 are composed mainly of leather but also of textile material. The left interior side of 4422022B features a flap which measures approximately 9 inches in height by 6 inches in width. Three slot pockets (for holding cards or flat items) lie atop the flap to a height of approximately 4 inches. Papers and/or other flat items may also be inserted beneath the flap. SKU 4422022B has two pen loops and no means to secure the article in the closed position. The left interior side of 143A/1 features a full height, nearly full width sleeve into which papers or other flat items may be inserted. Overlying the sleeve is a flap which measures approximately 7-3/4 inches in height by 5 inches in width, and which contains seven slots for holding cards and/or other flat items. Papers and flat items may also be inserted beneath the flap. SKU 143A/1 has two pen loops and a zipper closure running along three sides.
ISSUE:
Whether the binders are classified under heading 4820, HTSUSA, which covers, among other items, “binders...and other articles of stationery, of paper or paperboard,” or under headings 3926 and 4205, HTSUSA, which essentially cover other articles of plastics, and other articles of leather, respectively.
-3-
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any
relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
Chapter 48, HTSUSA, covers paper and paperboard, and articles of paper pulp, of paper or of paperboard. Heading 4820, HTSUSA, covers:
Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard. [Emphases added.]
In light of the heading text above, it appears that articles of stationery named therein are normally made of paper or paperboard. The EN to heading 48.20 indicate that the heading covers various articles of stationery including (in addition to the examples noted above) notebooks of all kinds, files (other than box files), and portfolios. The EN also state that:
[t]he goods of the 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. [Emphasis added.]
Finally, EN (3) to heading 48.20 states, in part, that the heading covers:
Binders designed for holding loose sheets, magazines, or the like....” [Emphasis added.]
You present several arguments in support of your contention that heading 4820, HTSUSA, covers all binders, whether or not they are made of paper or paperboard, and whether or not they are imported with the articles of stationery they are designed to bind. You assert that the binders at issue constitute “binders...of paper” because they
-4-
bind paper, a purpose for which they are specifically designed and intended. In your view, a requirement that “binders...of paper” be made of paper (or paperboard) is no more valid than one requiring that “grinders of coffee” be made of coffee, since the two phrases merely reflect the purpose for which each article is designed, i.e., to bind papers and grind coffee, respectively.
Although dozens of articles of stationery are listed in the EN to heading 48.20, you find it determinative binders are the only exemplars listed with a reference to the purpose for which they are designed. From the “design” aspect of EN (3) above, you deduce that it is irrelevant (to its proper classification under heading 4820) whether a binder not made of paper or paperboard, binds articles of the heading when imported. You also appear to interpret the EN which allows goods of the heading to be bound with materials other than paper, to mean that empty binders may be covered with materials other than paper (e.g., leather, plastics, and textile material) and still be classified under heading 4820.
A definition of the term “stationery” is not contained in the HTSUSA. In Webster's Third New International Dictionary, (1993), however, "stationery" is defined, in pertinent part, as: "1 : materials (as paper, pens, pencils, ink, blankbooks, ledgers, and cards) for writing or typing 2 : letter paper usu. accompanied with matching envelopes: writing paper....” The stationery materials defined above include as examples three items not normally made of paper or paperboard, i.e., pens, pencils, and ink. Although they constitute, by definition, stationery materials, pens, pencils, and ink are not among the “articles of stationery” listed in heading 4820. We find their omission to be based, in part, on the fact that they are not “articles of stationery, of paper or paperboard.” Many types of articles of stationery that are not made of paper or paperboard are classifiable in headings other than heading 4820, HTSUSA.
While each binder at issue is composed, in part, of paperboard (i.e., the paperboard stiffeners sealed between the exterior and interior surfaces and plastic foam), it is the component materials other than paperboard which are joined together (by heat-sealing, sewing, riveting, etc.) to form the binder’s shape, as well as its surfaces, pockets, sleeves, fastening capabilities, etc. If separated from the non-paperboard component materials, the stiffeners would not appear able to form a binder or any other article of stationery, and would amount only to some unconnected paperboard rectangles. Although the non-visible stiffeners provide reinforcement which allows each binder to retain its shape, it is the non-paperboard materials which additionally provide color, texture, aesthetic appeal, etc. to the binders. Mindful of these factors, we find that the subject binders are not made of paper or paperboard. They are articles that do not conform to the language of heading 4820, which provides for “binders...and other articles of stationery of paper or paperboard.” The binders at issue are therefore, not “goods of the heading.”
-5-
With regard to the EN concerning “goods of the heading...[being] bound with materials other than paper...and...fittings of metal....,” we note that the tariff does not define the term “bound.” In Mead Corp. v. United States, 283 F.3d 1342 (Fed. Cir. 2002), the Court of Appeals for the Federal Circuit (CAFC), on remand from the U.S. Supreme Court, considered the meaning of the term “bound” as used both in the trade of book manufacturing, and in modifying the (bound) “Diaries, notebooks and address books....” classified in subheading 4820.10.20, HTSUS (all of which, the parties agreed, constitute books). The CAFC noted that the trial court had interpreted the term “bound” broadly, taking the term’s application outside the context of books, to the non-book articles that are also covered by heading 4820. The CAFC concluded that “the term ‘bound,’ when used with reference to books as in subheading 4820.10.20, means permanently secured or fastened.”
In this case, the binders at issue are non-book articles. In Merriam Webster’s Deluxe Dictionary, Tenth Collegiate Edition (1998), the term “bound” (used as an adjective) is defined, in pertinent part, as “2 a : fastened by or as if by a band....” By means of their metal rings, the subject binders are designed to fasten but they are not, themselves, “fastened.” The binders are covered by materials other than paper or paperboard, but they are not “bound” by such materials. We therefore find that this EN relates directly to the purpose for which the subject binders are designed, i.e., for holding, fastening, or securing goods of the heading by means of the metal rings with which each is fitted. This EN does not render the subject binders classifiable under heading 4820 by virtue of their being covered by materials other than paper. When binders and such articles fasten or otherwise secure goods of the heading when imported, however, CBP has consistently classified the articles in conformance with the classification of the particular goods the articles are designed to hold.
You cite to the decision by the Court of International Trade (CIT) in Avenues in Leather v. United States, Slip Op. 04-41 (April 26, 2004), appeal docketed (Fed. Cir. July 2, 2004); and to the decision by the CAFC in E.T. Horn Co. v. United States, Slip Op. 03-1363 (Fed. Cir. May 12, 2004). You refer to Avenues for its dicta that the “specific primary purpose or use” of certain articles should be considered in determining essential character, and to Horn for its interpretation of the term “of” in regard to a product’s composition. We note that the CIT’s decision in Avenues is on appeal, and that, unlike the articles at issue in this case, the Avenues container was imported with a good of heading 4820 (a memorandum pad), a fact the court found determinative in classifying the complete good in subheading 4820.10.2020, HTSUSA, the provision for “Memorandum pads, letter pads and similar articles.”
We do not agree that the decision in E.T. Horn alters the plain meaning of the term “of” so that the term no longer indicates that a named product (e.g., a binder) is made from or composed of a named material (e.g., paper or paperboard). Unlike the
-6-
issue in this case, the matter under consideration in Horn related specifically to the use of the word “of” in various provisions under subheading 2909.19, HTSUS, as distinguished from the use of the word “derivative” in the text of heading 2909, HTSUS. That heading covers, in part, “Ethers, ether-alcohols, ether-phenols, ether-alcohol-phenols...and their halogenated, sulfonated, nitrated or nitrosated derivatives.” The Court agreed with the government that the term “of” encompassed the broader definition of “derivative,” a term which did not require that the ethers at issue be “made from” monohydric alcohols, allowing the product at issue (dichloroethyl ether or “DCEE”) to be made from structurally related compounds. The CAFC stated:
We base our conclusion [as to the meaning of “of”] on the plain meaning and overall organization of the tariff schedule headings and subheadings, as well as the Explanatory Notes to the tariff schedule and various dictionary definitions of “ether.”
The CAFC’s conclusion in Horn is therefore applicable to the specific facts, tariff provisions, EN, and definitions at issue in that case. In this case, the plain meaning of the term “of” and the EN to the pertinent tariff provision indicate that products named in the tariff (e.g., binders) are made from or composed of the material named in the corresponding tariff provision (e.g., paper or paperboard). The subject binders are indeed designed for holding loose sheets and other stationery. It does not follow, however, that binders and other articles of stationery that are not made of paper or paperboard are classifiable under heading 4820, HTSUSA.
Although the binders do not appear to be similar to containers of heading 4202, HTSUSA, an examination of that heading is often useful in determining the classification of binders and other articles that may have the character of containers, while lacking similarity to those of heading 4202. Note 1(h) to chapter 48, HTSUSA, states that “[t]his chapter does not cover: Articles of heading 4202 (for example, travel goods).” Heading 4202 covers:
Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.
-7-
In Totes, Incorporated v. United States, 18 C.I.T. 919, 865 F. Supp. 867 (1994), aff’d, 69 F.3d 495 (Fed. Cir. 1995), the CIT held that the essential characteristics and purposes of the heading 4202 exemplars are to organize, store, protect and carry various items. EN (c) to heading 4202 states that the heading does not cover:
Articles which, although they may have the character of containers, are not similar to those enumerated in the heading, for example, book covers and reading jackets, file-covers, document-jackets...etc., and which are wholly or mainly covered with leather, sheeting of plastics, etc. [Emphasis added.] Such articles fall in heading 42.05 if made of (or covered with) leather or composition leather, and in other Chapters if made of (or covered with) other materials. [Emphases in original.]
The articles at issue here are not “wholly or mainly covered with” paper or paperboard. Similar to the articles referenced in the EN above, the subject binders are “wholly or mainly covered with leather, sheeting of plastics,” and/or textile material. They have the mere character of containers and lack similarity to the containers enumerated in heading 4202. Looking to heading 4205, HTSUSA, which covers “Other articles of leather or of composition leather,” we note that the heading’s legal text does not enumerate the book covers, reading jackets, file covers, document jackets, etc. referenced in EN (c) to heading 4202. The EN to heading 42.05, however, state in part that the heading includes:
...reading-covers for books...and other containers (including those wholly or mainly covered with leather or composition leather) not being similar to those specified in heading 42.02...
Like heading 4205, the text of heading 3926, HTSUSA, does not enumerate book covers, reading jackets, file covers, document jackets, etc., as exemplars. In pertinent part, however, EN (4) to heading 3926 states that the heading covers articles of plastics which include:
...file-covers, document-jackets, book covers and reading jackets, and similar protective goods made by sewing or glueing together sheets of plastics.
We note that the term “file covers” is one of many articles of stationery listed in the text of heading 4820, HTSUSA, and in EN (3) to the heading. File covers (or “file-covers”) and other articles of stationery not “of paper or paperboard” are referenced in the EN to heading 42.02. The EN suggests that heading 42.05 is the proper heading for articles of stationery (book covers, reading jackets, documents, etc.) wholly or mainly covered with leather. “File-covers” and several other articles of stationery are also named in EN (4) to heading 3926, because they are wholly or mainly covered with sheeting of plastics.
-8-
In light of the above analysis, it is CBP’s determination that binders, like many other examples listed under heading 4820 as “articles of stationery, of paper or paperboard,” are classifiable in other headings if they are made of materials other than paper or paperboard. In light of CBP’s longstanding classification treatment of binders/planners imported empty (i.e., without the goods of heading they are designed to bind) based on the material of which they are made, or with which they are wholly or mainly covered, we find that the articles identified by SKU numbers 10227 and 097B/1 are classifiable under heading 3926, and that the articles identified by SKU numbers 4422022B and 143A/1 are classifiable under heading 4205, HTSUSA. For rulings consistent with the analysis and findings above, see, e.g., Headquarters Ruling Letter (HQ) 965423, dated July 16, 2002, HQ 962133, dated July 27, 1999, HQ 961366, dated April 28, 1999, HQ 957943, dated November 22, 1995, and HQ 957276, dated April 6, 1995.
HOLDING:
The binders identified by SKU numbers 10227 and 097B/1 are classified in subheading 3926.10.0000, HTSUSA, the provision for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies.” The general column one duty rate is 5.3 percent ad valorem.
The articles identified by SKU numbers 4422022B and 143A/1 are classified in subheading 4205.00.8000, HTSUSA, the provision for “Articles of leather or of composition leather: Other: Other.” The general column one duty rate is Free.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division