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HQ 956135



August 4, 1994
CLA-2 CO:R:C:T 956135 SK

CATEGORY: CLASSIFICATION

TARIFF No.: 4820.10.2010

Area Director
U.S. Customs Service
JFK Airport, Bldg. #77
Jamaica, N.Y. 11430

RE: Response to request for Internal Advice; IA 13/94; 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); 952691 (1/11/93); 953172 (3/19/93); 953413 and 955637 (4/6/94); 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 the law firm of Siegel, Mandell & Davidson, P.C., on behalf of the Metropolitan Museum of Art, regarding the classification of an engagement book described as the "Celebrating Impressionism: 1994 Art Book & Engagement Book." A sample was sent to this office for examination.

FACTS:

The subject merchandise consists of a spiral-bound engagement book, measuring approximately 8 inches by 7-3/4 inches, entitled "Celebrating Impressionism: 1994 Art Book & Engagement Book." The article features a two page written introduction on Impressionism. When opened, these articles display full-page photographs of famous artwork. The pages opposite the paintings feature week planners in which each day of the week is allocated approximately 1-1/8 inches by 6 inches of writing space. This page also has a brief description of the painting depicted on the opposite page. The last page of the enagagement book contains a "Year-at-a-Glance" calendar for the years 1994-1995,

ISSUE:

Whether the articles at issue are classifiable as diaries of subheading 4820.10.20, HTSUSA, as calendars of subheading 4910.00.20, HTSUSA, or as printed art and pictorial books of subheading 4901.99.11, 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.

Our initial inquiry is whether the engagement book at issue is properly classifiable as a diary under subheading 4820.10.2010, HTSUSA. Similar issues were examined 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 and 955637 (4/6/94). 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, definitions of "diary" established by the Court of International Trade and 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, all of which incorporated day planners similar to those contained in the subject merchandise, 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 HRL 955637, Customs classified day planners that were similar in design and function to the article currently under review. The covers of the day planners classified in HRL 955637 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
types of 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 classified in HRL 955637 and the engagement book currently at issue are similar in that both articles contain day/week planners with spaces to record appointments and various notations, and both engagement books were presented in similar formats: day/week planners on one page with a photograph illustrating famous works of art or flowers and accompanying text describing the photograph on the opposite page.

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 advertisements run in The New Yorker magazine earlier this year. The New Yorker displayed full-page advertisements for its "1994 New Yorker Desk Diary." The dairy depicted in the advertisement appears similar to the article 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 function to the subject engagement book. 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 article at issue is properly classifiable as a bound diary of subheading 4820.10.2010, HTSUSA, inasmuch as its distinguishing feature is its suitability for the receipt of daily written notations. As with the articles at issue in Baumgarten, the Metropolitan Museum of Art engagement book contains allocated spaces for daily entries. Moreover, the engagement book at issue is larger and contains 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 several pages of information that is not directly related to the function of receiving written notations about one's daily activities (in this case, several pages of written material pertaining to the genre of impressionism and specific works of art). The issue of whether the presence of such extrinsic material (i.e., photographs, pictures, written commentary describing pictorial content, 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 engagement book at issue fits the Oxford English Dictionary's definition of diary and is 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 a bound diary 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 decision is significantly different from the engagement book currently under review in several vital aspects. 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). All of the factors which precluded the article in Scribner's from classification as a diary are absent in the instant case. Most significant is the fact that the type of paper used in this article is well-suited for writing. As noted above, the determination in Scribner's that the article was not well-suited for the receipt of written notations was the key factor in deeming the article

"not suitable as a diary." Moreover, the articles currently under review are expressly marketed to consumers as engagement books, and not as calendars. And lastly, the amount of space allocated for the receipt of written notations 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..

Having established that the subject engagement book is properly classifiable as a diary under subheading 4820.10.2010, HTSUSA, we now address counsel's claim that this article is classifiable under heading 4910, HTSUSA, as a calendar or, in the alternative, under heading 4901, HTSUSA, as an art book. In support of counsel's first contention, that the subject merchandise is classifiable as a calendar, he states that the language of heading 4910, HTSUSA, provides for calendars of any kind, printed. He goes on to cite the definition of "calendar" as set forth in Webster's New International Dictionary, which reads:

"a tabular statement or register of the divisions of a given year, referring the days of each month to the days of the week."

Counsel contends that the subject article meets the definition of a calendar and notes that this article is similar to wall calendars which also allow the user to jot down notations in the spaces for each day. He states that the availability of this writing space does not render the item a diary; it does not meet the common and commercial definition of a diary, nor is it presented to the consumer as such. We disagree.

It is the opinion of this office that the subject engagement book in no way performs the function of a calendar. The essential purpose of a calendar is to demarcate and establish the relative position of the days, weeks and months of a year with regard to one another. Calendars are used to define time and therefore are presented in a particular format which allows a viewer to see dates in a particular sequence or relation to one another. While we agree that calendars are sometimes used to jot down appointments and reminders, etc., we stress that their primary purpose is to allow the user of the calendar to ascertain where a certain day falls in relation to the rest of the month and/or year. We disagree that the subject engagement book is similar to a wall calendar. Wall calendars may provide spaces for written notations, but essentially they are designed to allow the viewer to identify a particular date, and ascertain its relation to other dates at a glance.

As stated supra, the primary purpose of a diary is to provide a place for the receipt of daily or weekly notations, events and appointments. Although the subject article does allow the user to know the date, its design is not ideal for this purpose, Rather, its primary function is to provide a situs for written notations about one's activities. The primary function of this engagement book squarely meets the definition of "diary" as provided for above in both lexicographic and court sources.

Counsel also submits that this article belongs to a class or kind of merchandise that is commonly bought and sold as a calendar and that is how this item will be principally used. Again, we disagree. It is our opinion that the expectations of a consumer with regard to this book will be that of a planner; a book to be used to notate events, etc... . The item does not lend itself with ease to be used as a calendar. Moreover, it is marketed and sold to consumers as an" Art Book & Engagement Book." It is acknowledged that consumers tend to use articles is the same manner as they are presented to them. Clearly, these items are not labeled as calendars and, as we discussed supra, engagement books are a recognized form of diary.

Lastly, and most persuasively, we note that the Explanatory Notes (EN) to heading 4910, HTSUSA, explicitly exclude "diaries (including so-called engagement calendars) (heading 48.20)." As this article meets the definition of a diary, functions as such, and is marketed to the consumer as an "engagement book," it is effectively precluded from classification within this heading.

In the alternative, counsel submits that the subject engagement book is classifiable under heading 4901, HTSUSA, as an art and pictorial book. The EN to heading 4901, HTSUSA, state that the heading includes books and booklets consisting "essentially" of textual matter of any kind. Books which essentially provide text are included within heading 4901, HTSUSA. As the subject engagement book consists essentially of pictures and blank spaces in which to write notations, it is precluded from classification within this heading. The principal use of this book is not to provide information about art, but rather to provide an attractive format for keeping one's appointments.

HOLDING:

Metropolitan Museum of Art's "Celebrating Impressionism: An Art Book & Engagement Book" is 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
Commercial Rulings Division

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