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HQ 967816




October 5, 2005

CLA-2 RR:CTF:TCM 967816 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4820.10.2020

Mr. Kenneth G. Weigel
Mr. Robert W. Irish
Alston & Bird LLP
601 Pennsylvania Avenue, NW
North Building, 10th Floor
Washington, DC 20004-2601

RE: Classification of a folio filer imported with memorandum pad or spiral notebook

Dear MM. Weigel and Irish:

This is in reply to your letter dated June 2, 2005, on behalf of ACCO Brands, Inc. (“ACCO”) to the National Commodity Specialist Division (“NCSD”) requesting classification of the Big Mouth Folio Filer Plus (“Big Mouth Folio”) under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Your letter has been forwarded by the NCSD to this office for a reply.

FACTS:

You describe the Big Mouth Folio as a “school folio filer that is designed to be used by students to take and organize notes.” You provided a sample of the article with your letter. The sample of is made of translucent polypropylene sheeting that has been scored, folded, heat-sealed and spot bonded to form a bifold case with a flap closure. The inner left side of the folder contains an accordion pouch fitted with five tabbed plastic folders. This side measures approximately 13” high by 10” wide. A bungee stretches over a plastic button rivet to secure the folders. The inner right side of the folder incorporates a horizontal slit into which a legal size paper pad has been inserted. This side also measures approximately 13” high by 10” wide. When in closed position, the Big Mouth Folio measures approximately 13” high, 11” wide, and 1-1/8” thick.

It is our understanding that this paper pad is present upon importation of the article. There are two zipper pouches for holding small articles such as pens, pencils, or other supplies. One is on the inside front of the accordion folder, and the other one is on the flap closure and accessible from both sides of the flap. A second bungee stretches around a button on the flap closure, keeping it securely closed.

Based on your description of the article and literature that you provided with your letter, it appears that the Big Mouth Folio is also available with a spiral notebook instead of a legal size paper pad. Again, it is our understanding that this spiral notebook is present upon importation of the article.

ISSUE:

What is the classification of the Big Mouth Folio?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." If the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The headings under consideration for classification of the merchandise are Heading 4820, HTSUSA, and Heading 3926, HTSUSA. Heading 4820, HTSUSA, provides for:

Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationery, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard.

Heading 3926, HTSUSA, provides for:

Other articles of plastics and articles of other materials of headings 3901 to 3914.

We find your description of the article to be accurate. The article is designed to be used by students to take and organize notes. As a result, heading 4202, HTSUSA, is not under consideration. We find that the Big Mouth Folio is not prima facie classifiable in heading 4202, HTSUSA, which provides for:

Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.

While the Big Mouth Folio may be used to organize and protect small and/or flat items in addition to the memorandum pad or spiral notebook, it has an internal capacity of only 1-1/8” thick and lacks significant carrying space. These characteristics make the Big Mouth Folio unsuitable to carry newspapers, books, and other objects that are normally carried in containers that are common to Heading 4202, HTSUSA. Moreover, while the Big Mouth Folio may be generally described as a “container,” its specific use is limited to the facilitation of taking notes and organizing them. Such a specific use, which predominates over the more general description of containers, precludes classification of the Big Mouth Folio under Heading 4202, HTSUSA.

The Big Mouth Folio cannot be classified solely on the basis GRI 1 because two headings (heading 4820, HTSUSA, and heading 3926, HTSUSA) provide for the article. Consequently, the remaining GRI are applied, in order. GRI 2(a) relates to articles presented unassembled or disassembled and, as the Big Mouth Folio is imported in finished condition, GRI 2(a) is not applicable in this case. As a result, GRI 2(b) is applied. GRI 2(b), in pertinent part, states that: “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.”

GRI 3 states that: “[w]hen, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) [t]he 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 .. contained in composite goods , 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.”

We find GRI 3(a) to resolve classification of the Big Mouth Folio. The EN to heading 4820, in pertinent part, states that:

This heading covers various articles of stationary, other than correspondence goods of heading 48.17 and the goods referred to in Note 10 to this Chapter. It includes :

(1) Registers, account books, note books of all kinds, order books, receipt books, copy books, diaries, letter pads, memorandum pads, engagement books, address books and books, pads, etc. for entering telephone numbers.

Binders designed for holding loose sheets, magazines, or the like (e.g., clip binders, spring binders, screw binders, ring binders), and folders, file covers, files (other than box files) and portfolios.

Other articles of stationary such as blotting-pads (folding or not).

The 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.

The EN to heading 3926 state, in pertinent part, that:

This heading covers articles, not elsewhere specified or included, of plastics

They include:

(4) Dust-sheets, protective bags, awnings, file-covers, document-jackets, book covers and reading jackets, and similar protective goods made by sewing or glueing together sheets of plastics.

As stated above, the Big Mouth Folio’s specific use is the facilitation of taking notes and organizing them. The article’s use is centered around the memorandum pad, a named exemplar under heading 4820. The article’s other parts, its sheeting, pouches and folders, merely serve to enhance the article’s primary use, which is to provide a convenient and organized method by which to take notes in various locations in a variety of circumstances. The article’s three small zipper pouches hold only pens, pencils or other small supplies, its tabbed folders restrict use of the Big Mouth Folio to holding or organizing papers (most likely notes from the memorandum pad or spiral notebook), and its sheeting protects the memorandum pad or spiral notebook and folders. For these reasons, we find that the imported article as a whole exhibits characteristics of an article of stationary, of paper or paperboard, and shares the common characteristics of a memorandum pad or spiral notebook.

While heading 3926, HTSUSA, does refer to the plastic parts of the article, heading 4820, HTSUSA, provides a more specific description of the article, recognizing that the article exhibits characteristics of an article of stationary, of paper or paperboard.

Also see Headquarters Rulings (HQ) 967329, dated November 15, 2004; HQ 965595 dated August 5, 2002; HQ 965423, dated July 16, 2002; HQ 959958, dated June 8, 1999; and HQ 962030, dated May 13, 1999, pertaining to the classification of similar articles imported with or without memorandum, notebooks, or similar articles.

HOLDING:

The Big Mouth Folio Filer Plus is classified in subheading 4820.10.2020, HTSUSA, which provides for: “Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationary, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles: Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles, Memorandum pads, letter pads and similar articles.” The applicable column one, general duty rate under the 2005 HTSUSA is “Free.” Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.

Sincerely,

Gail A. Hamill, Chief

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