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HQ 957943



November 22, 1995
CLA-2 RR:TC:TE 957943 SK

CATEGORY: CLASSIFICATION

TARIFF NO.'s: 4820.10.2010; 4205.00.8000; 3926.90.9890; 4202.11.0030; 4202.12.2035.

S. Richard Shostak
Debra A. Belanger
Stein Shostak Shostak & O'Hara
515 South Figueroa Street, ste. 1200
Los Angeles, CA 90071-3329

RE: Vinyl or leather bound day planners classifiable as diaries if imported with paper inserts; 4820.10.2010, HTSUSA; leather or vinyl diary covers, if imported without paper inserts, classifiable under subheading 4205.00.8000 or 3926.90.9890, HTSUSA; 4202 v. 4820, HTSUSA; 4202 v. 4205, HTSUSA; 4202 v. 3926, HTSUSA; GRI 3(a); GRI 3(c); EN to 4205; EN to 3926; organizers; HRL's 089960 (2/10/92); 955199 (1/24/94); 955636 (4/6/94); 955516 (4/8/95);956940(11/25/94); 956384 (3/9/95); Fred Baumgarten v. United States, 49 Cust. Ct. 275, Abs. 67150 (1962).

Dear Messrs. Shostak and Belanger:

This is in response to your letter of May 1, 1995, on behalf of your client, Day Runner, in which you request a binding classification ruling for five styles of leather or vinyl bound day planners. The day planner covers may be imported with or without their paper diary/organizer inserts. Samples of all five styles were submitted to this office for examination.

On September 27, 1995, a supplement to your original classification request was submitted to this office. In addition, on November 9, 1995, representatives from this office met with attorneys from your firm to further discuss the issues presented herein.

FACTS:

Five different styles of day planners have been submitted to Customs for classification. As stated supra, these items may be imported with or without their paper diary/organizer fillers or inserts. One style of the "Executive Weekly Organizer System" was submitted. Two "Classic Edition Organizer Systems" and two "Entrepreneur Edition Organizer Systems" were submitted. The various day planner styles are described as follows:

"Executive Weekly Organizer System"

Model #146-6099 is a leather-like vinyl ring binder organizer system measuring 4-7/8 inches wide by 7-1/4 inches long by 3/4 inch thick when closed. It does not possess a closure. The interior contains a 7/16 inch metal six-ring binder which holds the hole-punched Day Runner inserts. It has one flat vertical pocket on the left interior flap and six business/credit card pockets. The right interior flap contains one flat vertical pocket into which is cut a slot for a note pad.

"Classic Edition Organizer Systems"

Model 101-6099 is a leather-like vinyl ring binder organizer system measuring 7-3/4 inches wide by 9 inches long by 2 inches thick when closed. The article contains a 1-1/4 inch metal three-ring binder which holds the hole-punched Day Runner inserts and has a snap closure. The left interior contains a pen loop and one flat diagonal flap for loose papers with two small plastic pockets for business/credit cards. The right interior contains a slot for the note pad and a pen loop with pen.

Model 114-6099 is a leather-like vinyl ring binder organizer system measuring 8 inches wide by 10 inches long by 2 inches thick when closed. The article contains a 1-1/4 inch metal three-ring binder which holds the hole-punched Day Runner inserts and features a three-sided zipper closure and flat horizontal pocket on the outside front cover. The left interior possesses one pen loop with pen and has a flat vertical pocket onto which are sewn two pockets for business and credit cards. The right interior has a note pad slot.

"Entrepreneur Edition Organizer Systems"

Model 202-6099 is a leather-like vinyl ring binder organizer system measuring 10-7/8 inches wide by 12-1/8 inches long by 2 inches thick when closed. The article contains a 1-1/4 inch metal three-ring binder which holds the hole-punched Day

Runner inserts and features a three-sided zipper closure and flat horizontal pockets on the front and back exterior into which are designed retractable handles. The left interior possesses one pen loop and pen and has a flat diagonal flap onto which are sewn two pockets for business and credit cards. The right interior has a note pad slot.

Model 201-5099 is a leather-like vinyl ring binder organizer system. The features of this article are identical to Model 202-6099 except for the left interior which contains one vertical flat pocket, two diagonal flaps and a business/credit card holder.

The subject organizers will be imported either with the paper diary components already inserted in the binders, or the binders and the paper inserts will be imported separately. The diary "inserts" are comprised of different combinations of types of accessories and planning pages. The different types of diary inserts include: a "Time" Section with a monthly dated calendar, daily planning pages and Memo-ry (registered TM) for "Items on Standby"; an "Information" Section with a telephone address directory; a "Projects" Section with pages for notes, objectives, projects, contacts and finances; and a plastic business/credit card holder, a zippered plastic pouch, a daily calender pagemark/ruler, notepad and pen. The Day Runner System offers buyers a wide choice of page sizes, additional forms, and covers of various materials, styles and colors.

ISSUES:

What is the proper classification of the five styles of day planners if imported with their paper inserts?

What is the proper classification of the binders if imported separately from their paper inserts?

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 DAY PLANNERS IF
IMPORTED WITH THEIR PAPER INSERTS

Heading 4820, HTSUSA, provides for, in pertinent part, notebooks, memorandum pads, diaries and similar articles. The threshold issue is whether these five articles fit the definition of "diary" or whether these articles are more aptly described as articles "similar to" diaries under subheading 4820.10.4000, HTSUSA. Customs has visited this issue extensively, as you have noted in your submission to this office. We have consistently determined that day planners, similar to the ones currently at issue, are classifiable as diaries under subheading 4820.10.2010, HTSUSA. Our determinations have been based on lexicographic sources, evidence of how these types of articles are treated in the trade and commerce of the United States, and standards dictated by the Customs Court with regard to the classification of this commodity.

In HRL 089960, dated February 10, 1992, 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.

Customs concluded in HRL 089960 that a day planner bound with a ring binder was classifiable as a diary under subheading 4820.10.2010, HTSUSA.

In HRL 955199, dated January 24, 1994, this office held that Customs' classification of day planners and 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' (we note that The New Yorker advertises a new edition each year). The advertised diary had similar design elements and functioned in a manner similar to the subject organizers. 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."

The Customs Court 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 noted:

"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."

In applying the above-cited factors (i.e., the Baumgarten Court's analysis, lexicographic definition of diary and industry treatment of day planners and organizers) we find that all five day planners (imported with paper inserts) meet the various definitions and concepts of diaries set forth supra, inasmuch as their distinguishing feature is their suitability for the receipt of daily notations. Accordingly, model numbers 146-6099, 101-6099, 114-6099, 202-6099 and 201-5099, if imported with their paper inserts, are prima facie classifiable as bound diaries under subheading 4820.10.2010, HTSUSA.

Heading 4202, HTSUSA, provides for, in pertinent part, attache cases, briefcases and similar containers. The relatively compact size of model numbers 146-6099, 101-6099 and 114-6099 renders them ill-suited for use as containers of heading 4202, HTSUSA, in that they simply do not provide adequate space to transport articles in addition to their paper diary inserts. Model numbers 202-6099 and 201-5099, however, present us with a different classification scenario. The design and dimensions of model numbers 202-6099 and 201-5099 provide sufficient
space for the transportation of assorted articles and personal items in addition to the bulky paper organizers they are designed to hold. This office tested the holding capacity of these two models by inserting into them various articles such as wallets, newspapers, magazines, standard size papers and documents, as well as many of the articles normally carried in a briefcase or attache case. Model numbers 202-6099 and 201-5099 easily accommodated these items as well as their paper diary inserts. We further note that the articles' handles facilitated transportation. While the presence of retractable handles does not necessarily render an article classifiable in heading 4202, HTSUSA, it is a factor which this office will consider in conjunction with an article's overall design and specifications.

During your meeting with Customs representatives, you presented the argument that as model numbers 202-6099 and 201-5099 contain metal three-ring binders they are not ejusdem generis with the containers of heading 4202, HTSUSA, inasmuch as attache cases, briefcases and the like do not usually possess this feature. While we acknowledge that ring binders are not typically found in briefcases and similar articles, this fact will not preclude classification within heading 4202, HTSUSA. It is this office's opinion that model numbers 202-6099 and 201-5099 may aptly be described as "specialized" carrying cases; the three-ring binders therein have adapted these carrying cases so that they can easily protect, store and transport punch-holed paper. While model numbers 202-6099 and 201-5099 are well-suited for use in transporting the Day Runner diary components and other punch-holed paper, their overall design and dimensions also render them well-suited for the transport of other types of items as discussed supra. This office sees no reason to preclude these carrying cases from classification within 4202, HTSUSA, on the basis that they have been adapted, in part, to carry a particular item (paper). We note that several of the carrying cases enumerated in heading 4202, HTSUSA, are also designed to accommodate specific items, such as binocular cases, camera cases and musical instrument cases, etc... . More specifically, subheading 4202.11 and 4202.12, HTSUSA, provide for specialized carrying cases such as vanity cases (intended to hold cosmetics and toiletries) and school satchels (intended to hold school supplies).

In Totes, Incorporated v. United States, 95-1125 (decided October 24, 1995), affirming the Court of International Trade's decision in Totes, Incorporated v. United States, 865 F. Supp. 867 (1994), the U.S. Court of Appeals for the Federal Circuit examined the scope of heading 4202, HTSUSA, with regard to specialized containers. In the appellate decision, the court examined the classification of the "Totes Trunk Organizer," a rectangular case used to organize and store items such as motor oil, tools and jumper cables in an automobile trunk. The Court of Appeals held that:

"the merchandise is not removed from classification under subheading 4202.92.9020 simply because it is intended to organize, store, and protect items associated with a motor vehicle. Many of the containers named in subheading 4202.92.9020 are used to organize, store, and protect specific items."

The Court of Appeals' determination supports Customs' contention that model numbers 202-6099 and 201-5099 are not precluded from classification within heading 4202, HTSUSA, merely because they are intended to organize, transport, store and protect specific items (i.e., punch-holed paper) as well as other personal items. Model numbers 202-6099 and 201-5099 are prima facie classifiable in heading 4202, HTSUSA.

As model numbers 202-6099 and 201-5099 are prima facie classifiable under both headings 4202 and 4820, HTSUSA, GRI 3 provides the relevant analysis. GRI 3(a) states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

"(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration."

In this instance, headings 4820 and 4202, HTSUSA, are equally specific in relation to one another. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b). Neither the carrying case component nor the diary component imparts the essential character to these articles. The articles are able to incorporate and transport a variety of items, yet the diary components contribute at least as much in terms of function and design. Accordingly, classification is determined by GRI 3(c). As heading 4820, HTSUSA, is the heading which occurs last in numerical order among the headings which would equally merit consideration, model numbers 202-6099 and 201-5099 are classifiable as diaries of heading 4820.10.2010, HTSUSA. See HRL 956384, dated March 9, 1995, in which we classified similarly designed merchandise using a GRI 3(c) analysis.

CLASSIFICATION OF THE DAY PLANNERS IF IMPORTED SEPARATELY FROM THEIR PAPER DIARY INSERTS

As stated supra, heading 4820, HTSUSA, provides for, inter alia, diaries, address books and other articles of stationary. By its terms, heading 4820, HTSUSA, only provides for articles of paper or paperboard. Accordingly, if the subject binders are imported without their paper inserts classification is precluded from this heading.

Customs has consistently held that leather binders similar in design or function to the subject merchandise (with or without ring binders) are classifiable in subheading 4205.00.8000, HTSUSA, as "[O]ther articles of leather or of composition leather." . 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; HRL 083204, dated February 14, 1990; and HRL 957276, dated April 6, 1995. If model numbers 146-6099, 101-6099, 114-6099, 202-6099 and 201-5099 are made of leather, and are imported without their paper diary inserts, these styles are prima facie classifiable under heading 4205, HTSUSA. Note that if any of these styles are made of vinyl, they are classifiable under heading 3926, HTSUSA, which provides for "[O]ther articles of plastics."

We have stated that heading 4202, HTSUSA, provides for a wide array of carrying cases. We have also determined that the relatively compact size of model numbers 146-6099, 101-6099 and 114-6099 renders them ill-suited for use as containers of heading 4202, HTSUSA. However, using the same analysis set forth supra, this office deems model numbers 202-6099 and 201-5099 similar to the attache cases, briefcases and related articles classifiable in heading 4202, HTSUSA.

Model numbers 202-6099 and 201-5099 also serve to provide a cover for the paper inserts that will be included in these binders after importation and therefore either heading 4205 or 3926, HTSUSA, may govern classification as well, depending upon whether these styles are made of leather or vinyl. We therefore have a situation where headings 4205 or 3926, HTSUSA, and heading 4202, HTSUSA, potentially govern classification of model numbers 202-6099 and 201-5099.

Again, GRI 3 provides the relevant analysis in a situation where an article is classifiable under two or more headings. GRI 3(a) provides that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

"(a) The heading which provides the most specific description shall be preferred to headings providing a more general description . . . ."

If made from leather, model numbers 202-6099 and 201-5099 are described by heading 4205, HTSUSA, which is a general residual provision covering "other articles of leather." If made from vinyl, model numbers 202-6099 and 201-5099 are described by heading 3926, HTSUSA, which is a general residual provision covering "other articles of plastics." Regardless of their composition, these two styles are also described by heading 4202, HTSUSA, which provides for certain specifically enumerated containers, including attache cases, briefcases and similar containers. Heading 4202 more specifically describes model numbers 202-6099 and 201-5099 as it encompasses a more limited class of goods than either heading 4205 or 3926, HTSUSA. Moreover, the Explanatory Notes (EN) to heading 4205, HTSUSA, at page 615, state that this heading "covers those articles of leather ... which do not fall in the preceding chapters." As model numbers 202-6099 and 201-5099 are prima facie classifiable in heading 4202, HTSUSA, and this heading both precedes heading 4205 and is more specific, these two styles are classifiable in subheading 4202.11.0030, HTSUSA, which provides for, inter alia, leather attache cases, briefcases and similar articles. Similarly, the EN to heading 3926, HTSUSA, at page 575, state that this heading "covers articles, not elsewhere specified or included, of plastics ... ." Model numbers 202-6099 and 201-5099 are more specifically provided for in heading 4202, HTSUSA, and classification is therefore precluded from heading 3926, HTSUSA.

We note that you have also proposed classification of the vinyl Day Runners, if imported without their paper inserts, under subheading 3926.10.0000, HTSUSA, which provides for "office or school supplies" of plastics. No evidence has been submitted which establishes that the day planners at issue are principally associated with use in the office or school. These are personal day planners. Moreover, with regard to model numbers 202-6099 and 201-5099, the same classification principles discussed above which precluded classification of these two styles in subheading 3926.90.9890, HTSUSA, similarly preclude classification within subheading 3926.10.0000, HTSUSA.

Lastly, you state in your submission to this office that as the articles in HRL's 956940, dated November 25, 1994, and 956384, dated March 9, 1995, are larger than four of the five Day Runners at issue, and these articles were classified under heading 4820, HTSUSA, the subject merchandise should be classified within this heading as well. With regard to the article classified in HRL 956940, we note that that diary measured only one inch in depth and did not have handles. Classification of this type of commodity is performed on a case by case basis and it was the opinion of this office in HRL 956940 that the overall dimension and design of the article did not render it ejusdem generis with the articles of heading 4202, HTSUSA.

We recognize that the article classified in HRL 956384 is similar to model numbers 202-6099 and 201-5099: although it measured nearly two inches longer in width, it also possessed retractable handles, a three-sided zipper closure and two exterior flat pockets. The diary classified in HRL 956384 was deemed prima facie classifiable under both headings 4202 and 4820, HTSUSA. The article was ultimately classified in heading 4820, HTSUSA, based on the same GRI 3(c) analysis used in the classification of model numbers 202-6099 and 201-5099.

HOLDING:

If model numbers 146-6099, 101-6099, 114-6099, 202-6099 and 201-5099 are imported together with their paper inserts, classification is proper under 4820.10.2010, HTSUSA, which provides for, inter alia, bound "[D]iaries and address books," dutiable at a rate of 3.6 percent ad valorem.

If the subject day planners are imported separately from their paper inserts, and their outer covers are made of leather, classification is as follows:

* model numbers 146-6099, 101-6099 and 114-6099 are classifiable under subheading 4205.00.8000, HTSUSA, which provides for, "[O]ther articles of leather or of composition leather", and are accorded duty free treatment.

* model numbers 202-6099 and 201-5099 are classifiable under subheading 4202.11.0030, HTSUSA, which provides for, "[T]runks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: with outer surface of leather, of composition leather, or of patent leather... attache cases, briefcases, school satchels, occupational luggage cases and similar containers...," dutiable at a rate of 8 percent ad valorem.

If the subject day planners are imported separately from their paper inserts, and their outer covers are made of vinyl, classification is as follows:

* model numbers 146-6099, 101-6099 and 114-6099 are classifiable under subheading 3926.90.9890, HTSUSA, which provides for, "[O]ther articles of plastics and articles of other materials of headings 3901 to 3914: other: other... other," dutiable at a rate of 5.3 percent ad valorem.

* model numbers 202-6099 and 201-5099 are classifiable under subheading 4202.12.2035, HTSUSA, which provides for, "[T]runks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: with outer surface of plastics or of textile materials: with outer surface of plastics... other: attache cases, briefcases, and similar containers...," dutiable at a rate of 20 percent ad valorem.

Due to the nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant
Tariff Classification Appeals Division

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