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HQ 955516


April 8, 1994

CLA-2 CO:R:C:T 955516 SK

CATEGORY: CLASSIFICATION

TARIFF NO.'s: 4820.10.2010; 4205.00.8000; 4823.51.0044

Area Director
U.S. Customs Service
J.F.K. Airport
Building 178
Jamaica, N.Y. 11430

RE: Decision on Application for Further Review of Protest No. 1001- 3-102939; classification of "Filofax"; organizer; day/week planner; agenda; leather folder imported with inserts classifiable under subheading 4820.10.2010; diary; folder and inserts imported separately, classifiable under subheadings 4205.00.8000 and 4823.51.0044 respectively; EN to heading 4820; Note 9 to Chapter 953172 (3/19/93); 953413 (3/29/93); 955253 (11/10/93); 955199

Dear Sir:

This is a decision on application for further review of a protest timely filed on May 13, 1993, by Charles H. Bayar of the law firm of Whitman & Ransom, on behalf of his client, Filofax Inc., against your decision regarding the classification of "Filofax" day/week planners, also referred to as organizers or agendas. Eight entries of the subject merchandise were made at the J.F.K. airport and the port at Newark, between the dates of August 17, 1992, and December 8, 1992. These entries were liquidated between February 12, 1993, and April 19, 1993. This office did not receive a sample of the subject merchandise, but protestant's submission did include photocopies of assorted styles of "Filofaxes" with accompanying promotional and descriptive literature set forth in the 1993 "Filofax" catalogue. FACTS:

Filofax Inc. manufactures several styles of organizers. Most feature loose-leaf ring binders covered with leather, and differ only in size and color. The binders incorporate pen loops and pockets for holding credit cards and papers, and feature snap closures. The organizers at issue are filled with an assortment of cut-to-size printed and pre-punched pages called "fills." The majority of "fill" pages are printed on both sides with captions, dates, lines, etc., and are designed to receive various kinds of written entries.

The organizers are imported either with the "fills" already inserted in the binder folders, or the binders and the paper inserts are imported separately. The importer states that all the entries the subject of this protest also include additional printed materials that are not intended to be inserted into the folders. These additional materials are imported and sold at retail as sets or sections for updates and replacements.

ISSUES:

Whether the organizers at issue, if imported with their prescribed inserts already in the binders, are classifiable as bound diaries under subheading 4820.10.2010, HTSUSA, or as "other" diaries and similar articles under subheading 4820.10.4000, HTSUSA?

What is the proper classification of the binders if imported separately?

What is the proper classification of the inserts if imported separately?

LAW AND ANALYSIS:

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.

- CLASSIFICATION OF THE "FILOFAX" WHERE LEATHER BINDER IS IMPORTED WITH THE PRESCRIBED INSERTS ALREADY IN PLACE -

Heading 4820, HTSUSA, provides for, in pertinent part, notebooks, memorandum pads, diaries and similar articles. At issue is whether the articles in question fit the definition of "diary" or whether these articles are more aptly described as articles "similar to" diaries under subheading 4820.10.4000, HTSUSA.

Protestant submits that the "Filofax" organizers under review are classifiable under subheading 4820.10.4000, HTSUSA, as articles "similar to" diaries. In support of this contention, counsel for the importer cites Headquarters Ruling Letter (HRL) 089960, dated February 10, 1992, in which Customs classified several styles of "leather agendas" similar in design and function to the "Filofaxes" currently under review. Protestant states that Customs classified the agendas in HRL 089960 as articles "similar to" diaries. A reading of that ruling, however, yields the opposite conclusion. In HRL 089960, this office relied on lexicographic sources in making the determination as to what constituted a diary. The term "dairy" as defined in the Compact Edition of the Oxford English Dictionary, 1987, 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.

Three styles of leather agenda were at issue in HRL 089960. This office held that the style with a ring binder was classifiable under subheading 4820.10.2010, HTSUSA, which provides for bound "diaries and address books." As this agenda was not an address book, it is clear that Customs was classifying it as a diary. The reason that one of the agendas in HRL 089960 was classified under subheading 4820.10.2010, HTSUSA, and the other two under subheading 4820.10.4000, HTSUSA, was based on the distinction as to whether the diaries were deemed bound or not. Customs determined that the leather agenda with the ring binder was bound. The other two agendas classified in HRL 089960 were not considered bound and were therefore classified under subheading 4820.10.4000, HTSUSA. It is imperative to recognize that Customs considered all three agendas in HRL 089960 diaries; the difference in classification was a function of whether the diaries were deemed bound. This analysis has subsequently been followed in numerous rulings by Customs. See HRL's 953172 (3/19/93); 953413 (3/29/93); and 955253 (11/10/93).

In HRL 955199, dated January 24, 1994, this office held that Customs' classification of organizers as "diaries" accurately reflected the common and commercial identity of these items in the marketplace. In that ruling, we noted that The New Yorker magazine regularly displayed full-page advertisements for its '1994 New Yorker Desk Diary.' The advertised diary was similar in design and function to organizers, planners and agendas. The advertisement's copy read:

'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.'

As Customs unequivocally considers articles such as agendas, organizers and planners to be diaries, and not merely articles "similar to" diaries, your arguments contesting the proper classification of articles "similar to" diaries are rendered moot.

Protestant also contends that if:

"... Filofax's organizers are deemed diaries, notebooks and address books per se, Filofax asserts that organizers which utilize a loose-leaf ring binder are not 'bound' within the meaning of HTSUSA subheading 4820.10.20. [W]hile the internationally-recognized Explanatory Notes to the Harmonized Tariff Nomenclature state that goods classifiable in Heading 4820 'may be bound with materials other than paper (e.g., leather, plastics or textile material) and have reinforcements or fittings of metal, plastics, etc.,' there is no definitive statement that loose-leaf ring binders make 'bound' books. Filofax submits that ring binders in general are materially different from 'bound' books because their pages can be supplemented, removed and reinserted, or rearranged according to the individual user's desires and needs."

The Harmonized Commodity Description and Coding System Explanatory Note 3 (EN) to heading 4820, page 687, which represents the official interpretation of the HTS at the international level, states that this heading includes:

"[B]inders designed for holding loose sheets, magazines, or the like (e.g., binders, screw binders, ring binders), and folders, file covers, files (other than box files) and portfolios." [emphasis added]

As the "Filofax" diaries contain ring binders that hold loose sheets in place, they are undoubtedly classifiable within heading 4820, HTSUSA. The next issue is whether ring binders make a diary "bound" so as to warrant classification within subheading 4820.10.2010, HTSUSA. This office has consistently held that they do. See HRL 089960 (2/10/92); 952691 (1/11/93); and 953172 (3/19/93). This position is supported by the EN to heading 4820, HTSUSA, which state that "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 metal binders were contemplated to fit within this heading's definition of bound articles. We do not agree with protestant's argument that merely because a metal loose- leaf ring binder was not expressly cited as an exemplar of a "bound" article in the EN to heading 4820, that it is precluded from classification as such. Customs has noted many times in the past that exemplars cited in the EN to a heading are not intended to be all-inclusive. Rather, cited exemplars are intended to provide guidance as to what type of articles are connoted by a particular heading or subheading.

Protestant further submits that ring binders in general are materially different from 'bound' books because pages in a ring binder can be supplemented, removed and reinserted, or rearranged. While this is true, this fact provides no basis for claiming that an article secured with a ring binder is not "bound." Moreover, protestant's rationale seems to run counter to the EN's description of the type of materials which bind articles of heading 4820, HTSUSA. Articles bound with "fittings of metal [or] plastics" are expressly provided for in the EN and these types of binders are usually intended to allow for the removal, addition or rearrangement of the binders' inserts.

- CLASSIFICATION OF THE UNFILLED BINDERS IMPORTED SEPARATELY -

If the binders for the "Filofax" organizers are imported separately from their prescribed inserts, classification of these articles is proper under subheading 4205.00.8000, HTSUSA, which provides for, "[O]ther articles of leather or of composition leather." Customs has consistently held that leather binders similar in design or function to the subject merchandise (with or without ring binders) are classifiable in this subheading. See New York Ruling Letter (NYRL) 889677, dated September 17, 1993, in which a leather folder with three ring binder and inner pockets for business cards and loose papers was classified under subheading 4205.00.8000, HTSUSA. See also NYRL 868086, dated November 11, 1991; NYRL 858079, dated December 10, 1990; and HRL 083204, dated February 14, 1990.

- CLASSIFICATION OF THE "FILOFAX" INSERTS IMPORTED SEPARATELY -

Note 9 to Chapter 48 states that, "[H]eading 4820 does not cover loose sheets or cards, cut to size, whether or not printed or embossed or perforated." Protestant submits that this preclusion does not pertain to the inserts at issue because, although cut to size, printed and perforated, the inserts are not "loose ... when used in the context of papers." Protestant cites Webster's Third New International Dictionary, which defines "loose" as follows:

2. not bound together: not brought together in a bundle, container, or binding: not secured in a setting or joined in a fixed combination." [emphasis added]

It is argued that the pages of the "Filofax" dated inserts are not "loose" under this definition because the dating of the pages serves to "join them in a fixed combination" inasmuch as each of the pages of these inserts must remain precisely in dated order. Protestant submits that "Filofax's" dated diary and planner inserts therefore qualify as unbound "diaries" and warrant classification under subheading 4820.10.4000, HTSUSA. We disagree. The adjectival definition of "loose" as set forth in Webster's New Collegiate Dictionary, 1977, reads:

1. "not rigidly fastened or securely attached."

The inserts at issue are clearly not rigidly fastened or secured to any other object, nor to each other, except in a practical sense (e.g., the loose pages of a calendar may only be of practical use if assembled in a particular order). A reading of the word "loose" in its context in Note 9 to Chapter 48 is revealing. It is this office's opinion that the word "loose" is used in a physical sense. The Note's use of other descriptive terms concerned with the physical properties of the precluded sheets or cards (e.g., cut to shape, printed, perforated) lends support to this rationale.

The inserts, if imported separately, are classifiable under subheading 4823.51.0044, HTSUSA, which provides for, "[O]ther paper and paperboard, of a kind used for writing, printing or other graphic purposes: printed, embossed or perforated... hole-punched looseleaf paper... ."

HOLDING:

The "Filofaxes" at issue, if imported with the binders filled with their prescribed inserts, 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.

The leather binders, if imported unfilled, are classifiable under subheading 4205.00.8000, HTSUSA, which provides for "[O]ther articles of leather or of composition leather: other: other... ." This is a duty free provision.

The inserts, if imported separately from the "Filofax" binders, are classifiable under subheading 4823.51.0044, HTSUSA, which provides for, "[O]ther paper and paperboard, of a kind used for writing, printing or other graphic purposes: printed, embossed or perforated... hole-punched looseleaf paper...," dutiable at a rate of 3 percent ad valorem.

As the rate of duty under the classification indicated above is the same as the rate under which the subject merchandise was entered, you are instructed to deny the protest in full. A copy of this decision should be furnished to the protestant with the CF 19 Notice of Action to satisfy the notice requirement of Section 174.30(a), Customs Regulations.

In accordance with Section 3(A)(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 these entries in accordance with this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the 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 the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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