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HQ 955636

April 6, 1994

CLA-2 CO:R:C:T 955636 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 101/93; 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 Victoria Solin of Para/Graf, regarding the classification of two articles referenced the "A4 Architects & Designers Diary 1993" and the "1994 United States Marine Corps Diary." A sample of each item was sent to this office for examination.


The subject merchandise consists of two hard-cover, bound articles referenced the "A4 Architects & Designers Diary 1993" and the "1994 United States Marine Corps Diary" (hereinafter referred to as the "A & D Diary" and the "USMC Diary" respectively). The "A & D Diary" measures approximately 8-1/2 inches by 12 inches, and the "USMC Diary" measures approximately 6-3/4 inches by 9-3/4 inches. The "A & D Diary" bears the legend "A4 Architects & Designers Diary 1993" printed on its front, cloth cover, interior cover page and on its order forms for the 1994 edition. The "USMC Diary" has "1994 United States Marine Corps Diary" printed on its interior cover page and on its order forms for the 1995 edition. Both articles have ribbon markers and contain sections for addresses and telephone numbers, year planners, and blank sections for notes. The "A & D Diary" contains a section with literature, photographs and blueprints focusing on the architectural aspects of various Walt Disney buildings. It also contains a table entitled "weights and measures," "proof correction marks," "international paper sizes" and a "Le Corbusier modular." The "USMC Diary" contains a section of literature and photographs dealing with military helicopters, a "Commandant's reading list," listings of Marine Corps Associations and Generals, and a section entitled "Personal" which provides space for written notations concerning one's medical care providers, lawyer, bank, type of rifle/pistol, and health information. The great majority of both of these articles is comprised of day planners in which each day of the week is allocated approximately 2-1/4 inches by 5-1/2 inches of unlined, blank writing space in the "A & D Diary" and 2-1/8 inches by 5 inches of lined writing space in the "USMC Diary."


Whether the articles at issue are classifiable as bound diaries under subheading 4820.10.2010, HTSUSA, or as articles "similar to" diaries under subheading 4820.10.4000, HTSUSA?


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 determinative issue is whether the subject merchandise is classifiable as bound "diaries" under subheading 4820.10.2010, HTSUSA, or as "similar to" diaries under subheading 4820.10.4000, HTSUSA. This issue 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 cover of the "A & D Diary" with the legend "A4 Architects & Designers Diary 1993" and the interior cover pages of both articles refer to these items as "diaries." 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 word "diary" on articles that are not recognized as diaries. The fact remains that these articles must be considered a recognized form of diary if a publisher in the industry labels the articles 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 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 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 and holding, 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 "A & D Diary" and the "USMC Diary" at issue contain allocated spaces for daily entries. Moreover, these 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 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 as such. The type of paper used in these articles 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.


The "A4 Architects & Designers Diary 1993" and the "1994 United States Marine Corps Diary" 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.


John Durant, Director

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