CLA-2 OT:RR:CTF:TCM H027186 CkG
TARIFF NO: 8305.10.00, 8305.90.60
Mr. Darren Lenox
ACCO Brands Corp.
300 Tower Parkway
Linconshire, Illinois 60069-36407
RE: Modification of New York Ruling Letter N026040; base metal office articles
Dear Mr. Lennox:
This is in response to your letter of April 29, 2008, on behalf of your company, ACCO Brands Corporation, requesting the reconsideration of New York Ruling Letter (NY) N026040, issued to you on April 17, 2008. At issue in that ruling was the classification of various base metal prong fasteners under the Harmonized Tariff Schedule of the United States (HTSUS). U.S. Customs and Border Protection (CBP) classified these items in subheading 8305.90.60, HTSUS, which provides for: “Fittings for looseleaf binders or files, letter clips, letter corners, paper clips, indexing tags and similar office articles, and parts thereof, of base metal;…Other, including parts: Other.”
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, a notice proposing to modify NY N026040 was published in the Customs Bulletin, Vol. 43, No. 34, on August 20, 2009. CBP received no comments in response to the notice.
FACTS:
The merchandise in NY N026040 was described as follows:
[A] Prong Fastener, item number A7012990; a Prong Fastener Base, item number A7012991; A Prong Fastener Compressor, item number A7012994; and a Self-Adhesive Prong Fastener Base, item number A7070011. All items are made of base metal.
Prong fasteners are used to secure a large number of papers that have been two-hole punched. Item number A7012990, identified as the Prong Fastener (complete set), consists of two parts: a base and a compressor. The base has two prongs that are folded through the holes of the paper and compressor. The compressor fits over the base to secure the prongs and hold the paper firmly. Item number A7012991 consists of a prong fastener base. Item number A7012994 consists of a prong fastener compressor. Item number A7070011 is a self-adhesive prong fastener base, which is similar to a prong fastener base, except that it has a self-adhesive backing for affixing permanently onto a file folder.
Your request for reconsideration is limited to the classification of the Prong
Fastener complete set, the Prong Fastener Base, and the Self-Adhesive Prong
Fastener Base. You contend that the proper classification for the subject merchandise is under subheading 8305.10.00, HTSUS, which provides for fittings for looseleaf binders or files or, in the alternative, under subheading 8305.90.30, HTSUS, which provides for paper clips and their parts.
ISSUE:
Whether the subject prong fasteners and base are properly classified in
subheading 8305.10.00, HTSUS, as fittings for looseleaf binders or files, subheading 8305.90.30, HTSUS, as paper clips and parts thereof, or in subheading 8305.90.60,
HTSUS, as “other” office articles of base metal.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification 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 GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
8305 Fittings for looseleaf binders or files, letter clips, letter corners, paper clips, indexing tags and similar office articles, and parts thereof, of base metal; staples in strips (for example, for offices, upholstery, packaging), of base metal:
8305.10.00 Fittings for looseleaf binders or files…..
8305.90 Other, including parts:
8305.90.30 Paper clips, and parts thereof…..
8305.90.60 Other…..
* * * * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The Explanatory Note to heading 8305, HTSUS, provides, in pertinent part, as follows:
This heading covers base metal fittings of the clip, cord, spring lever, ring, screw, etc., types, for loose leaf binders or box files. It further includes protecting rings, bands and corners for ledgers or other stationery books; also office stationery in metal of the type used in fastening together or index marking papers (e.g., letter clips, paper clips, paper fasteners, letter corners, card indexing tags, file tags, spike files)….
* * * * * * *
At GRI 1, there is no dispute that the instant merchandise is described by and is thus classifiable in heading 8305, HTSUS, because they are office articles of base metal.
You argue that the prong fasteners may be used as fittings for looseleaf binders or files and that they meet the description of “base metal fittings” of the “clip” type provided for in EN 83.05. However, whereas EN 83.05 indicates that these types of fittings are “for … box files”, you believe that the term “box files” is a very narrow interpretation of the term “files” found in heading 8305 (8305.10.00), HTSUS. You state that “loose-leaf papers can be maintained in various types of files and file folders beyond box files, nor are other files explicitly excluded from the Explanatory Notes for that subheading.” In support of your contention, you direct our attention to Headquarters Ruling Letter (HQ) 962366 (July 12, 1999) in which CBP classified metal clamps for oversized paper documents within subheading 8305.10.00, HTSUS. You state that, in that ruling, CBP did not limit the interpretation of the term “file” in the text of heading 8305, HTSUS, to the Explanatory Notes example of box files.
We agree with your contention that the term “box files” used in EN 83.05 is a very narrow interpretation of the eo nomine term “files” used in the text of heading 8305 and subheading 8305.10.00, HTSUS. The ENs, which are persuasive but not binding authority, cannot be used to narrow the scope of the legal text of a heading. Consequently, fittings for any type of files and not just box files may be classified in subheading 8305.10.00, HTSUS, unless the legal text requires otherwise. See Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). See, e.g., Headquarters Ruling Letter (HQ) 956644, dated December 18, 1994, in which CBP stated that the examples provided in the ENs for heading 3504, HTSUS, were illustrative and not restrictive.
Subheading 8305.10.00, HTSUS, is a use provision, in that fittings of the subheading are for use with looseleaf binders or files. Classification under a use provision is determined by the principal use in the United States at, or immediately prior to, the date of importation, of the class or kind of goods to which the imported goods belong. See Additional U.S. Rule of Interpretation 1(a), HTSUS. Generally, the courts have provided additional factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: (1) general physical characteristics, (2) expectation of the ultimate purchaser, (3) channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), (4) use in the same manner as merchandise which defines the class, (5) economic practicality of so using the import, and (6) recognition in the trade of this use. See United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), cert denied, 429 U.S. 979 (1976).
Self-Adhesive Prong Fastener Base
The Self-Adhesive Prong Fastener Base is designed to adhere to some sort of backing. In addition, they are marketed and sold as “easy to use, one-piece fasteners for file folders.” Based on their physical characteristics and the way in which they are marketed and sold, we find that purchasers would expect to be able to use the Self-Adhesive Prong Fastener Base with file folders. Accordingly, we find that this merchandise is principally used as fittings for files and is therefore provided for in subheading 8305.10.00, HTSUS.
Non-adhesive Prong Fastener Base and Prong Fastener complete set
There is nothing inherent in the design of the non-adhesive Prong Fastener Base or the complete set which indicates that they are principally used with a binder or a file. The remaining Carborundum factors are also inconclusive. On one hand, the ACCO product information for the complete non-adhesive set makes no mention of its suitability for use with file folders. In addition, some retailers categorize prong paper fastener bases and compressors separately from filing accessories or as general office supplies. See e.g., http://www.officedepot.com/a/browse/fasteners-and posts/ N=5+1936/; http://www.officemax.com/office-supplies/clips-fasteners-rubberbands /fasteners /product-prod1600015?sp=true. On the other hand, some office supply retailers consider the non-adhesive base and compressor set to be filing supplies, as noted in the product descriptions (e.g., “Standard Two-Piece Paper File Fasteners,” “Brass prong paper file fasteners,” “Prong Bases for Premium Two-Piece Paper File Fasteners”), and as evidenced by their being advertised as “filing accessories” or “filing supplies”. See e.g., http://www.officeworld.com/Worlds-Biggest- Selection/1151/09Q1/; http://www.staples.com/office/supplies/c21_File-Fasteners-File-Folders-Accessories 10376_Business_Supplies_10061_0_10051; http://www.instaoffice.com/2-piece-paper-fasteners-2-capacity-2-3-4-center-to-center-2piece-acco-fasteners-file-fasteners-p.acc12992-ctn.0.7.htm. Based on the way in which these products are marketed and sold, we find that purchasers would expect to be able to use the non-adhesive prong fastener base and complete set both with and without file folders.
Based on these facts, we conclude that the Prong Fastener complete set and Prong Fastener Base are not principally used as fittings for files of subheading 8305.10.00, HTSUS, and fall to be classified under subheading 8305.90. We find that neither item meets the description of subheading 8305.90.30, HTSUS, (paper clips) because they secure papers primarily by the bending of the prongs and not by the application of pressure. See Webster’s New World Dictionary (3rd Edition), which defines “paper clip” as “a flexible clasp, typically of metal wire, for holding loose sheets of paper together by pressure.” The Oxford English Dictionary similarly defines a “paper clip” as “a device used for holding together several sheets of paper, esp. in an office environment; spec. (a) a small spring-loaded clamp, often made of cast iron; (b) a single piece of wire which is shaped (esp. by bending or looping) into a design suitable for fastening papers; a similar device made of plastic or other material.” CBP has previously classified items such as binder clips in subheading 8305.90.30, HTSUS. See NY R01259, dated January 18, 2005, and NY D87052, dated January 26, 1999. As we do not consider the Prong Fastener Base or complete set to be types of paper clips, we find that they were correctly classified in subheading 8305.90.60, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the Self-Adhesive Prong Fastener [Base]
#A7070011 is classified in subheading 8305.10.00, HTSUS, which provides for: “Fittings for looseleaf binders or files, letter clips, letter corners, paper clips, indexing tags and similar office articles, and parts thereof, of base metal:…Fittings for looseleaf binders or files.” The 2009 column one, general rate of duty is 2.9% ad valorem.
By application of GRIs 1 and 6, the Prong Fastener Base (item no. A7012991) and the Prong Fastener complete set (item no. A7012990) are classified in subheading 8305.90.60, HTSUS, as “Fittings for looseleaf binders or files, letter clips, letter corners, paper clips, indexing tags and similar office articles, and parts thereof, of base metal:… Other, including parts: Other.” The 2009 column one, general rate of duty is 5.7% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N026040, dated April 17, 2008, is hereby modified with respect to the
classification of the Self-Adhesive Prong Fastener (Base), item no. A7070011. The classification of the Prong Fastener Base, item no. A7012991, and the Prong Fastener complete set, item no. A7012990, is not affected by this ruling.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division