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HQ 957148

October 21, 1994

CLA-2 CO:R:C:T 957148 SK


TARIFF NO.: 4820.10.2010

District Director
U.S. Customs Service
4477 Woodson Road, Rm. 200
St Louis, MO 63134-3716

RE: Decision on Application for Further Review of Protest No. 4501- 93-100047; classification of engagement book; organizer; day/week planner; agenda; dairy; not "similar to" a diary; 4820.10.2010, HTSUSA; 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). HRL's 089960 (2/10/92); 952691 955199 (1/24/94); 955636 (4/6/94); 955637 (4/6/94); 955516

Dear Sir:

This is a decision on application for further review of a protest timely filed on October 14, 1993, by Sidney H. Kuflik of the law firm of Lamb & Lerch, on behalf of his client, the Mead Corporation, against your decision regarding the classification of day/week planners, also referred to as organizers or agendas. Twenty four entries of the subject merchandise were made at the port at Kansas City between the dates of April 16 and June 21, 1993. These entries were liquidated between August 6 and October 8, 1993.

Counsel raises substantive legal arguments pertaining to the validity of the liquidation of these articles as "dairies" under subheading 4820.10.2010, HTSUSA.

A supplemental submission relating to the classification of this merchandise was sent to this office by Mr. Kuflik on September 22, 1994.


The articles at issue are described as "day planners." The style numbers the subject of this protest are 47062, 47064, 47066, 47068, 47102, 47103, 47104, 47105, 47106, 47107, 47122, 47124, 47126, 47128, 47130, 47132, 47134, 47136, 47138, 47140, 47142, 47144, 47172, 47174, 47176, 47178 and 47180. Samples of style numbers 47062 and 47104 were submitted to this office along with generalized information about the day planners. Some of the day planners contain three-ring binders which are inserted into a pocket on the inside of the jacket cover. These articles contain calendar planners, daily planners, sections designated for address/telephone information, blank note pads, rulers, plastic business card holders and graph note pads.

All twenty four entries of the subject merchandise were liquidated by Customs under subheading 4820.10.2010, HTSUSA, as bound diaries, dutiable at a rate of 4 percent ad valorem.

Protestant contends that the day planners are properly classifiable under subheading 4820.10.4000, HTSUSA, and entitled to duty free entry. In support of this contention, protestant states:

1) the day planners at issue are not diaries per se, but rather articles "similar to" diaries, and therefore classification is precluded from subheading 4820.10.20, HTSUSA; and

2) even if these articles are deemed to be diaries, they are not "bound" diaries and therefore classification is precluded from subheading 4820.10.20, HTSUSA.


Whether the day planners are classifiable as diaries of subheading 4820.10.20, HTSUSA, or as articles similar to diaries under subheading 4820.10.40, HTSUSA?

Whether the articles at issue are considered bound?


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.


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 955516 (4/8/94). In these rulings, this office has consistently determined that 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 counsel's original memorandum of law in support of the Mead Corporations' protest, it is contended that "Customs Headquarters has at no time even remotely suggested that day planners are diaries per se." We disagree. In HRL 089960, this office unequivocally stated that "subheading 4820.10.2010, HTSUSA, provides for bound diaries and address books." The holding in that ruling determined the leather agenda then at issue to be classifiable under subheading 4820.10.2010, HTSUSA. In HRL 952691, issued to Mead Corporation, Customs held that when the "Personal Day Planner" then at issue was examined "in light of Heading 4820, HTSUSA, the common dictionary definition of 'diary', and past Customs rulings, it appears that the item is classifiable as a bound diary... ." In HRL 953172, this office determined that the day planners then at issue "fall squarely within the dictionary definition of diary... ." This sentiment was also expressed in HRL 953413. We note that all these rulings were issued before the date of counsel's first submission of legal arguments to Customs.

In all of the rulings cited supra, Customs held 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, 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.

In counsel's supplementary submission to this office, dated September 22, 1994, it is argued that Customs should base its classification of the subject merchandise solely on the first definition of "diary" presented in the Oxford English Dictionary, which reads:

1. A daily record of events or transactions, a journal, specially, a daily record of matters affecting the writer personally, or which come under his personal observation.

In response to this claim, we wish to stress two points. First, Customs is not obligated to limit its reliance on lexicographic sources to the first definition presented for a given word. Reference to lexicographic sources is a means to ascertain the commonly accepted definition or definitions, for a word or term. It broadens our understanding of a word so as to arrive at a more accurate classification. Many words have several definitions and Customs may consider any or all of them when making a classification determination. Second, we note that the narrower definition of "diary," as set forth in the Oxford English Dictionary's first definition, connotes an article containing blank pages used to record extensive notations of one's daily activities. This is not the sole format for a diary. The word "diary" also connotes a more formal and comprehensive approach to recordkeeping.

The broader concept of diary includes those articles classified in HRL's 955636 and 955637, both dated April 6, 1994. In those rulings Customs determined that the classification of day planners as diaries reflects the common and commercial identity of these items in the marketplace. In HRL 955636, Customs classified day planners that were similar in function to the articles currently at issue. The covers of the day planners classified in HRL 955636 were conspicuously and indelibly printed with the legend "1994 Desk Diary." As we noted in that ruling, it stands to reason that the publisher would not have gone to the added expense of printing "1994 Desk Diary" on these articles' covers, nor risked alienating potential customers, if the articles were not indeed recognized as diaries in the marketplace. The fact remains that these articles must be considered a recognized form of diary if a manufacturer in the industry labels the articles as such and purposely presents them in such a manner to the consumer. This fact is pertinent in the instant analysis because the articles marketed as diaries in HRL 955636 and the Mead planners at issue are similar in material respects; both articles contain day and week planners with spaces to record appointments and various notations, sections for address and telephone numbers and blank sections for notes.
As the overall design and function of the HRL 955636 diaries and the Mead planners are the same, and the former are marketed to consumers as diaries and recognized in the trade as such, it is reasonable to conclude that the Mead planners are similarly deemed to be diaries in the trade and commerce of the United States.

Further evidence that day planners are treated as a form of diary in the trade and commerce of the United States is provided by current advertisements run in The New Yorker magazine. The New Yorker regularly displays full-page advertisements for its "1994 New Yorker Desk Diary." The diary depicted in the advertisement appears to have a similar function to the planners under review. 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."

In counsel's supplementary submission it is argued that the "1994 New Yorker Desk Diary" differs from the Mead planners at issue. Counsel contends that the New Yorker Desk Diary warrants classification as a diary in that its address book and note pad section are "relatively minor and incidental elements," and that these components comprise less than 10 percent of the diary's volume. Counsel submits that the Mead planner is different in that it is not marketed specifically as a diary, the address book and note pad components are refillable, the "non-diary" components cost more than the diary features, and "the day planner's essential character is no longer exclusively derived from its diary function."

We address counsel's arguments in the order set forth above. First, an examination of the New Yorker Diary reveals that it contains far more extraneous information and components than merely an address book and note book, yet it still primarily functions as a diary. As is discussed later in this ruling, this is the standard that the Court of International Trade used to determine whether an article was classifiable as a dairy. Second, the fact that the New Yorker Diary is labeled and marketed as a diary is persuasive evidence of the article's identity; however, the mere fact that an article is not specifically labeled a diary does not preclude it from classification as such. Third, we see no relevance in the fact that the components in the Mead planners are refillable. Counsel argues that the ability to replace components is "strong indicia that the features are not merely complementary to the diary portion of the day planner... ." We do not agree. The fact that certain components are refillable may indicate only that the outer cover of the diary is expensive and durable enough so as to warrant use for several years. Lastly, the fact that the extraneous components in the Mead planners cost more than the pages to be used for written notations is irrelevant. The relative cost of the components is not pertinent to classification in situations where we have a court-imposed standard which requires that a dairy's distinguishing feature be its suitability for the receipt of daily notations. See Fred Baumgarten v. United States, 49 Cust. Ct. 275, Abs. 67150 (1962). Paper inserts will invariably be the least expensive components of a diary. In many instances, the cost of the outer cover will be the most expensive component and yet the article will be classified as a diary, and not as a binder, so long as it primarily functions as a site for the daily recordation of notes and appointments.

The Court of International Trade has spoken to the issue of what constitutes a diary for classification purposes. In Fred Baumgarten v. United States, the court dealt with the classification of a plastic-covered book which was similar in overall 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." [emphasis added]

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 Mead day planners contain allocated spaces for daily and hourly entries. Moreover, these diaries 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 information pages or interior components such as card holders, rulers and the like, which do not directly relate to the function of receiving written notations. The issue of whether the presence of extraneous material (i.e., weights and measure charts, conversion charts, "Year-at-a-Glance" calendars, maps, telephone area codes, rulers, card holders, 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 .... [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." [emphasis added]

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, and are similar in 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." They may have outer covers of plastic, leather, paper or textile material. They may contain an array of components such as rulers, business card holders, pens, pencils, calculators 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.

In counsel's supplementary submission to this office, it is argued that in light of a recent court decision, Nestle Refrigerated Food Company v. United States, Slip. Op. 94-118 (CIT, July 20, 1994), Customs should rethink its approach to the classification of diaries which contain extraneous components unrelated to the recordation of daily notes and appointments. In Nestle, the court dealt with the issue of whether a canned tomato product containing other ingredients was classifiable as "tomatoes, whole or in the piece," as "preparation for sauce," or as "tomato sauce." Counsel submits that the analysis required of the court in Nestle closely mirrors the situation in the instant case in that we must determine whether the subject articles, by virtue of their added extraneous elements, cease to be diaries and have become articles "similar to" diaries. Specifically, counsel argues that the presence of the zipper pouch, ruler, business card holder, address book and note pad serve to remove the Mead planners from the realm of "diary" and render them "similar to" diaries. Counsel states that these features are not "complementary to the diary definitional base" and "alter the essence of the article so that the day planners' essential character is no longer exclusively derived from its diary function."

There are several problems with this analogy. First, the court in Nestle merely acknowledged that optional ingredients "must serve to complement, highlight, and not overwhelm, the essential character of the tomatoes," so as not to render the entire product more akin to a preparation for sauce, or the sauce itself. The court further noted that, "[W]hen too much of an optional ingredient or a combination of optional ingredients are added to tomatoes ... the tomato component is materially altered" and "the product can no longer be deemed to be just tomatoes." The Nestle Court's analysis is similar to its earlier standard set forth in Brooks Bros., except that the Brooks Bros. decision explicitly set forth the standard we are to apply when dealing with diaries containing extraneous components. In Brooks Bros., the court examined the classification of a diary which contained many pages "useful solely for the information presented" which did not serve as sites for the recordation of notes and appointments. The Brooks Bros. Court held:

"[T]he fact that the Economist Diary contained a significant quantity of printed material did not change its essential character ... [R]egardless of the incidental value or utility of its informational material, it was still primarily and essentially a diary ... the informational material contained in the Economist Diary merely rendered it more useful and attractive to a particular class of purchasers ... [W]ithout the diary portion, it could not be sold as a diary of any kind. [T]he holding of the court is strengthened by the fundamental principle of customs law that an eo nomine designation of an article without limitation includes all forms of that article." [emphasis added]

Furthermore, we disagree with counsel's position that, pursuant to the analysis set forth in Nestle, a diary's essence must be imparted exclusively from its diary components to warrant classification in subheading 4820.10.2010, HTSUSA. Rather, we believe it is the Brooks Bros. analysis which is applicable in this instance: regardless of the presence of extraneous components, so long as the article is primarily a place for the recordation of events and appointments, it is classifiable as a diary. It is this office's opinion that the Mead planners at issue have been primarily designed to perform a diary function.

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 type of paper used in these articles is well-suited for writing and 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.

Based on the foregoing discussion, the Mead planners at issue are deemed to be "diaries" for tariff classification purposes.


The second issue before us is whether the day planners at issue are considered "bound" for purposes of classification within subheading 4820.10.2010, HTSUSA. In counsel's supplementary submission to this office, the argument is made that the Mead planners at issue are not "bound" for purposes of classification under subheading 4820.10.2010, HTSUSA, inasmuch as they do not meet the definition of a "bound book" as set forth in Kessler & Co. v. United States, 63 Cust. Ct. 513, C.D. 3944 (1969), citing Overton & Co. v. United States, 22 Treas. Dec. 437, T.D. 32327 (1912).

In Overton, the court defined a bound book as a "collection of leaves of any size permanently stitched or bound together in a cover, the binding being of the kind of work performed by the bookbinder." Counsel submits numerous other lexicographic definitions from both general and trade dictionaries which provide similar definitions of "bookbinding," and thereby arrives at the conclusion that the Mead planners at issue are not bound in the sense contemplated by the bookbinding trade. We note that all the submitted definitions set forth what constitutes a bound book. The issue at hand, however, is whether diaries with metal looseleaf binders, or spiral binders, are considered bound diaries for tariff classification purposes. The issue is not what constitutes a bound book, and there is no requirement that a diary be in the format of a book.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to heading 4820, page 687, which represent the official interpretation of the HTS at the international level, state:

"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 the Harmonized System Committee contemplated metal binders as being within this heading's definition of bound articles.

Counsel contends that as the term "bound" is found for the first time at the eight digit level (it modifies the term diary in subheading 4820.10.20, HTSUSA), and the EN represent the official interpretation of the HTS only at the four and six digit level, the EN provide no instruction as to the meaning of the word "bound." While we concur that the EN need not be applied at the eight digit level, we disagree that the EN are of "no value" in this instance. The value of the EN is that they provide guidance and insight into the intent of the Harmonized System Committee when drafting the Nomenclature. In this case, the EN specifically set forth how articles of heading 4820, HTSUSA, may be bound. The EN state that articles of this heading may be bound with metal. This office interprets this language as indicative of the drafters' intent to include as bound any articles possessing ring binders or spiral binders. This position is in accordance with the courts holding in Brooks Bros., in which an article constructed with a spiral binding was classified as a bound dairy under item 256.56, Tariff Schedules of the United States Annotated (TSUSA).

We further note that the manner in which items 256.56 and 256.58 were drafted under the TSUSA supports our position that the term "bound" was intended to include ring binders and spiral binders. Items 256.56 and 256.58 TSUSA, provide for:

Blank books, bound:

256.56 Diaries, notebooks and address books:....4%

256.58 Other: ................................Free

If this office were to adopt counsel's contention, that only books bound in the traditional bookbinding method (i.e., with stitching and glue) were to be deemed "bound," there would be no place in item 256, TSUSA, for diaries bound with ring binders and spiral binders as both the "diary" breakout and the "other" breakout are modified by the term "bound." This situation differs from the current construction of the HTSUSA, where subheading 4820.10.20 provides for bound diaries and 4820.10.40 is the provision where unbound diaries would be classified.

Lastly, we note that a semantical approach to this issue is revealing: a binder, whether a ring binder or spiral, is that which binds pages together in a fixed order. Pages held together in this manner are bound, and the diary is therefore deemed a bound article.


The Mead Corporation day planners, referenced style numbers 47062, 47064, 47066, 47068, 47102, 47103, 47104, 47105, 47106, 47107, 47122, 47124, 47126, 47128, 47130, 47132, 47134, 47136, 47138, 47140, 47142, 47144, 47172, 47174, 47176, 47178 and 47180, 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.

Since the classification indicated above is the same as the classification under which the subject entries were liquidated, you are instructed to deny the protest in full.

A copy of this decision should be attached to the Form 19 and provided to the protestant as part of the notice of action on the protest. In accordance with Section 3A(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 the entry in accordance with this decision must be accomplished prior to the mailing of the decision.

Sixty days from the date of this 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 to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Division

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