HQ 0955637 - Response to request for Internal Advice; IA 100/93; 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). - United States International Trade Commision Rulings

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HQ 955637

April 6, 1994

CLA-2 CO:R:C:T 955637 SK

CATEGORY: CLASSIFICATION

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 100/93; 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 Dorothy Gutterman of Abbeville Press, regarding the classification of three articles referred to as "1994 Desk Diaries." Three samples were sent to this office for examination.

FACTS:

The subject merchandise consists of three hard-cover, spiral- bound articles measuring approximately 8-3/4 inches by 10-3/4 inches. All three articles have the legend "1994 Desk Diary" printed on their front covers and on their initial interior pages. One book is entitled "The Art of Florence," the second is entitled "Audubon's Birds of America," and the third is entitled "Orchids." The spiral bindings on these articles are covered with fabric. When opened, these articles display full-page photographs of famous artwork, prints and flowers. The pages opposite the photographs feature week planners in which each day of the week is allocated approximately 2-1/2 inches by 3 inches of lined writing space. This page also has a brief description of the photograph depicted on the opposite page. Two "Month-at-a-Glance" calendars are also featured on the week planner page. In addition to the photographs and the week planners, the last few pages of these articles contain "Year-at-a-Glance" calendars for the years 1994-1999, two pages of "U.S. Weights and Measures" and "Metric Weights and Measures," a temperature conversion chart, a map of the United States with area codes, a listing of international telephone codes and two full- size, blank pages entitled "Notes."

ISSUES:

Whether the articles at issue are classifiable as bound diaries under subheading 4820.10.2010, HTSUSA, as articles "similar to" diaries under subheading 4820.10.4000, HTSUSA, or as calendars under subheading 4910.00.2000, HTSUSA?

LAW AND ANALYSIS:

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 initiator of this request for internal advice suggests that the merchandise at issue is properly classifiable under subheading 4820.10.4000, HTSUSA, as articles "similar to" diaries or, in the alternative, under subheading 4910.00.2000, HTSUSA, as "calendars." The assertion that these articles are classifiable as calendars of heading 4910, HTSUSA, is discounted as the Explanatory Notes (EN) to heading 4910, HTSUSA, specifically exclude:

(a) [M]emorandum pads incorporating calendars and diaries (including so-called engagement calendars)(heading 4820). (emphasis added)

This office is of the opinion that the articles under review, as well as articles similar in design and function which are often referred to as "organizers," "day/week planners," and "agendas," are properly deemed "engagement calendars" or "engagement books" and are therefore precluded from classification within heading 4910, HTSUSA. This determination is based on the fact that engagement calendars or engagement books are, as their name implies, articles used for the recordation of information relating to daily or weekly "engagements" (i.e., appointments and various notations associated with one's daily or weekly activities). The articles at issue, although in this instance labeled "Desk Diaries," are also intended for the recordation of appointments, events, notations, etc., and are similar in both design and function to articles synonymously referred to as day/week planners, agendas, and engagement calendars.

The second issue raised, whether the articles at issue are classifiable as "diaries" or as "similar to" diaries within heading 4820, HTSUSA, has been addressed in several rulings by this office. See Headquarters Ruling Letters (HRL's) 089960 (2/10/92); 952691 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 covers and inside cover pages of the subject merchandise with the legend "1994 Desk Diary." Although the initiator of this request for internal advice discounts the labeling of these articles as "Desk Diaries" by stating that "[T]he only reason they [the articles] were called 1994 Diaries is that our marketing people feel this has a more elegant and saleable ring to it and the use of the word 'diary' is for marketing hype only," 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 words "1994 Desk Diary" on articles that are not recognized as diaries, merely to convey a sense of "elegance." The fact remains that these articles must be considered a recognized form of diary if a publisher in the industry labels them 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, comprehensive or, as the inquirer described it, "elegant" 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 "Desk 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, 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 "1994 Desk Diaries" at issue contain allocated spaces for daily entries. Moreover, the "Desk 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 referenced "1994 Desk Diaries" 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 on their covers as such. The type of paper used in the "1994 Desk Diaries" 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.

HOLDING:

The three styles of "1994 Desk Diaries," specifically entitled "The Art of Florence," "Audobon's Birds of America," and "Orchids," 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.

Sincerely,

John Durant, Director

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