HQ 955937

October 21, 1994

CLA-2 CO:R:C:T 955937 SK

CATEGORY: Classification

TARIFF NO.: 4820.10.2010

District Director

U.S. Customs Service

4477 Woodson Road, Rm. 200

St Louis, MO 63134-3716

RE: Decision on Application for Further Review of Protest No. 4501-

93-100016; classification of engagement book; organizer; day/week

planner; agenda; dairy; not \"similar to\" a diary; 4820.10.2010,

HTSUSA; 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). HRL\'s 089960 (2/10/92); 952691

(1/11/93); 953172 (3/19/93); 953413 (3/29/93); 955253 (11/10/93);

955199 (1/24/94); 955636 (4/6/94); 955637 (4/6/94); 955516

(4/8/94).

Dear Sir:

This is a decision on application for further review of a

protest timely filed on March 26, 1993, by Sidney H. Kuflik of the

law firm of Lamb & Lerch, on behalf of his client, the Mead

Corporation, against your decision regarding the classification of

day/week planners, also referred to as organizers or agendas. Four

entries of the subject merchandise were made at the port at Kansas

City, Missouri, between the dates of September 3 and October 14,

1992\. These entries were liquidated between December 28, 1992, and

January 29, 1993.

Counsel for the importer raises two issues in his application

for further review of protest number 4501-93-100016. Counsel

contends that there has been a detrimental reliance by Mead on the

duty-free classification of its day planners under subheading

4820.10.4000, HTSUSA. Reliance was based upon a series of three

1991 New York Ruling Letters (NYRL\'s). On August 18, 1993, this

office issued Headquarters Ruling Letter (HRL) 953690, dealing with

Mead\'s detrimental reliance claim. Counsel also raises substantive

legal arguments pertaining to the validity of the classification

of these articles under subheading 4820.10.2010, HTSUSA.

Since detrimental reliance is not a matter subject to protest,

we will deal with the classification issues in this document and

will respond directly to the District Director as to how HRL 953690

impacts the four entries currently at issue.

A supplemental submission relating to the classification of

this merchandise was sent to this office by Mr. Kuflik on September

22, 1994.

FACTS:

The articles at issue are described as \"day planners.\" The

style numbers the subject of this protest are 47062, 47064, 47066,

47068, 47102, 47103, 47104, 47105, 47106, 47107, 47122, 47124,

47126, 47128, 47130, 47132, 47134, 47136, 47138, 47140, 47142,

47144, 47172, 47174, 47176, 47178 and 47180. Samples of style

numbers 47062 and 47104 were submitted to this office along with

generalized information about the day planners. Some of the day

planners contain three-ring binders which are inserted into a

pocket on the inside of the jacket cover. These articles contain

calendar planners, daily planners, sections designated for

address/telephone information, blank note pads, rulers, plastic

business card holders and graph note pads.

Four entries of the subject merchandise were liquidated by

Customs under subheading 4820.10.2010, HTSUSA, as bound diaries,

dutiable at a rate of 4 percent ad valorem.

Protestant contends that the day planners are properly

classifiable under subheading 4820.10.4000, HTSUSA, and entitled

to duty free entry. In support of this contention, protestant

states:

1\) the day planners at issue are not diaries per se, but rather

articles \"similar to\" diaries, and therefore classification is

precluded from subheading 4820.10.20, HTSUSA; and

2\) even if these articles are deemed to be diaries, they are not

\"bound\" diaries and therefore classification is precluded from

subheading 4820.10.20, HTSUSA.

ISSUES:

Whether the day planners are classifiable as diaries of

subheading 4820.10.20, HTSUSA, or as articles similar to diaries

under subheading 4820.10.40, HTSUSA?

Whether the articles at issue are considered bound?

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.

I. ARE THE DAY PLANNERS CLASSIFIABLE AS \"DIARIES\"

OR AS ARTICLES \"SIMILAR TO\" DIARIES?

The determinative issue is whether the subject merchandise is

classifiable as bound \"diaries\" under subheading 4820.10.2010,

HTSUSA, or as \"similar to\" diaries under subheading 4820.10.4000,

HTSUSA. This issue has been addressed in several rulings by this

office. See HRL\'s 089960 (2/10/92); 952691 (1/11/93); 953172

(3/19/93); 953413 (3/29/93); 955253 (11/10/93); 955199 (1/24/94);

955636 (4/6/94); 955637 (4/6/94); and 955516 (4/8/94). In these

rulings this office has consistently determined that 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 counsel\'s original memorandum of law in support of the Mead

Corporations\' protest, dated May 21, 1993, it is contended that

\"Customs Headquarters has at no time even remotely suggested that

day planners are diaries per se.\" We disagree. In HRL 089960,

this office unequivocally stated that \"subheading 4820.10.2010,

HTSUSA, provides for bound diaries and address books.\" The holding

in that ruling determined the leather agenda then at issue to be

classifiable under subheading 4820.10.2010, HTSUSA. In HRL 952691,

issued to the Mead Corporation, Customs held that when the

\"Personal Day Planner\" then at issue was examined \"in light of

Heading 4820, HTSUSA, the common dictionary definition of \'diary\',

and past Customs rulings, it appears that the item is classifiable

as a bound diary\... .\" In HRL 953172, this office determined that

the day planners then at issue \"fall squarely within the dictionary

definition of diary\... .\" This sentiment was also expressed in HRL

953413\. We note that all these rulings were issued before the

date of counsel\'s original submission of legal arguments to

Customs.

In all of the rulings cited supra, Customs held 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, 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.

In counsel\'s supplementary submission to this office, dated

September 22, 1994, it is argued that Customs should base its

classification of the subject merchandise solely on the first

definition of \"diary\" presented in the Oxford English Dictionary,

which reads:

1\. A daily record of events or transactions, a

journal, specially, a daily record of matters

affecting the writer personally, or which come

under his personal observation.

In response to this claim, we wish to stress two points.

First, Customs is not obligated to limit its reliance on

lexicographic sources to the first definition presented for a given

word. Reference to lexicographic sources is a means to ascertain

the commonly accepted definition or definitions, for a word or

term. It broadens our understanding of a word so as to arrive at

a more accurate classification. Many words have several

definitions and Customs may consider any or all of them when making

a classification determination. Second, we note that the narrower

definition of \"diary,\" as set forth in the Oxford English

Dictionary\'s first definition, connotes an article containing blank

pages used to record extensive notations of one\'s daily activities.

This is not the sole format for a diary. The word \"diary\" also

connotes a more formal and comprehensive approach to recordkeeping.

The broader concept of diary includes those articles

classified in HRL\'s 955636 and 955637, both dated April 6, 1994.

In those rulings Customs determined that the classification of day

planners as diaries reflects the common and commercial identity of

these items in the marketplace. In HRL 955636, Customs classified

day planners that were similar in function to the articles

currently at issue. The covers of the day planners classified in

HRL 955636 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 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

marketed as diaries in HRL 955636 and the Mead planners at issue

are similar in material respects; both articles contain day and

week planners with spaces to record appointments and various

notations, sections for address and telephone numbers and blank

sections for notes.

As the overall design and function of the HRL 955636 diaries and

the Mead planners are the same, and the former are marketed to

consumers as diaries and recognized in the trade as such, it is

reasonable to conclude that the Mead planners are similarly deemed

to be diaries in the trade and commerce of the United States.

Further evidence that day planners are treated as a form of

diary in the trade and commerce of the United States is provided

by current advertisements run in The New Yorker magazine. The

New Yorker regularly displays full-page advertisements for its

\"1994 New Yorker Desk Diary.\" The diary depicted in the

advertisement appears to have a similar function to the planners

under review. 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.\"

In counsel\'s supplementary submission it is argued that the

\"1994 New Yorker Desk Diary\" differs from the Mead planners at

issue. Counsel contends that the New Yorker Desk Diary warrants

classification as a diary in that its address book and note pad

section are \"relatively minor and incidental elements,\" and that

these components comprise less than 10 percent of the diary\'s

volume. Counsel submits that the Mead planner is different in that

it is not marketed specifically as a diary, the address book and

note pad components are refillable, the \"non-diary\" components cost

more than the diary features, and \"the day planner\'s essential

character is no longer exclusively derived from its diary

function.\"

We address counsel\'s arguments in the order set forth above.

First, an examination of the New Yorker Diary reveals that it

contains far more extraneous information and components than merely

an address book and note book, yet it still primarily functions as

a diary. As is discussed later in this ruling, this is the

standard that the Court of International Trade used to determine

whether an article was classifiable as a dairy. Second, the fact

that the New Yorker Diary is labeled and marketed as a diary is

persuasive evidence of the article\'s identity; however, the mere

fact that an article is not specifically labeled a diary does not

preclude it from classification as such. Third, we see no

relevance in the fact that the components in the Mead planners are

refillable. Counsel argues that the ability to replace components

is \"strong indicia that the features are not merely complementary

to the diary portion of the day planner\... .\" We do not agree.

The fact that certain components are refillable may indicate only

that the outer cover of the diary is expensive and durable enough

so as to warrant use for several years, thereby necessitating

refillable paper inserts. Lastly, the fact that the extraneous

components in the Mead planners cost more than the pages to be used

for written notations is irrelevant. The relative cost of

components is not pertinent to classification in situations where

we have a court-imposed standard which requires that a dairy\'s

distinguishing feature be its suitability for the receipt of daily

notations. See Fred Baumgarten v. United States, 49 Cust. Ct. 275,

Abs. 67150 (1962). Paper inserts will invariably be the least

expensive components of a diary. In many instances, the cost of

the outer cover will be the most expensive component and yet the

article will be classified as a diary, and not as a binder, so long

as it primarily functions as a site for the daily recordation of

notes and appointments.

The Court of International Trade has spoken to the issue of

what constitutes a diary for classification purposes. In Fred

Baumgarten v. United States, the court dealt with the

classification of a plastic-covered book which was similar in

overall 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.\"

\[emphasis added\]

The Baumgarten Court\'s analysis and holding, 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 Mead day planners contain

allocated spaces for daily and hourly entries. Moreover, these

diaries 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 information pages or interior

components such as card holders, rulers and the like, which do not

directly relate to the function of receiving written notations.

The issue of whether the presence of extraneous material (i.e.,

weights and measure charts, conversion charts, \"Year-at-a-Glance\"

calendars, maps, telephone area codes, rulers, card holders, 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

\.... \[T\]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.\" \[emphasis added\]

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 fit the Oxford English Dictionary\'s

definition of diary, and are similar in 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.\" They may have outer covers of plastic, leather,

paper or textile material. They may contain an array of components

such as rulers, business card holders, pens, pencils, calculators

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.

In counsel\'s supplementary submission to this office, it is

argued that in light of a recent court decision, Nestle

Refrigerated Food Company v. United States, Slip. Op. 94-118 (CIT,

July 20, 1994), Customs should rethink its approach to the

classification of diaries which contain extraneous components

unrelated to the recordation of daily notes and appointments. In

Nestle, the court dealt with the issue of whether a canned tomato

product containing other ingredients was classifiable as \"tomatoes,

whole or in the piece,\" as \"preparation for sauce,\" or as \"tomato

sauce.\" Counsel submits that the analysis required of the court

in Nestle closely mirrors the situation in the instant case in that

we must determine whether the subject articles, by virtue of their

added extraneous elements, cease to be diaries and have become

articles \"similar to\" diaries. Specifically, counsel argues that

the presence of the zipper pouch, ruler, business card holder,

address book and note pad serve to remove the Mead planners from

the realm of \"diary\" and render them \"similar to\" diaries. Counsel

states that these features are not \"complementary to the diary

definitional base\" and \"alter the essence of the article so that

the day planners\' essential character is no longer exclusively

derived from its diary function.\"

There are several problems with this analogy. First, the

court in Nestle merely acknowledged that optional ingredients \"must

serve to complement, highlight, and not overwhelm, the essential

character of the tomatoes.\" The court further noted that, \"\[W\]hen

too much of an optional ingredient or a combination of optional

ingredients are added to tomatoes \... the tomato component is

materially altered\" and \"the product can no longer be deemed to be

just tomatoes.\" The Nestle Court focused on an article\'s

\"essence.\" The Brooks Bros. Court found an article\'s \"primary

design and function\" to be determinative of classification. These

analyses are similar in the sense that if an article is primarily

designed as, and functions as, a diary, it stands to reason that

it will be the diary component which imparts the article\'s

\"essence.\"

This office is of the opinion that the Brooks Bros. Court has

explicitely set forth the standard we are to apply when dealing

with diaries containing extraneous components. In that case the

court recognized:

\"\[T\]he fact that the Economist Diary contained a

significant quantity of printed material did not

change its essential character \... \[R\]egardless

of the incidental value or utility of its

informational material, it was still primarily

and essentially a diary \... the informational

material contained in the Economist Diary merely

rendered it more useful and attractive to a particular

class of purchasers \... \[W\]ithout the diary portion,

it could not be sold as a diary of any kind.\" \[emphasis

added\]

We disagree with counsel\'s position that, pursuant to the

analysis set forth in Nestle, a diary\'s essence must be imparted

\"exclusively\" from its diary components to warrant classification

in subheading 4820.10.2010, HTSUSA. Rather, we believe it is the

Brooks Bros. analysis which is applicable in this instance:

regardless of the presence of extraneous components, so long as

the article is primarily a place for the recordation of events and

appointments, it is classifiable as a diary. It is this office\'s

opinion that the Mead planners at issue have been primarily

designed to perform a diary function.

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 protest. 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 type of paper used in these

articles is well-suited for writing and 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.

Based on the Mead planners\' suitability for the receipt of

daily notations, lexicographic sources, treatment of planners in

the trade and commerce of the United States, and prior treatment

of similar articles by the Court of International Trade, the

subject planners are deemed to be \"diaries\" for tariff

classification purposes, and classifiable under subheading

4820.10.2010, HTSUSA.

II\. ARE THE ARTICLES AT ISSUE \"BOUND\" FOR PURPOSES

OF CLASSIFICATION UNDER 4820.10.2010, HTSUSA?

The second issue before us is whether the day planners at

issue are considered \"bound\" for purposes of classification within

subheading 4820.10.2010, HTSUSA. In counsel\'s supplementary

submission to this office, the argument is made that the Mead

planners at issue are not \"bound\" for purposes of classification

under subheading 4820.10.2010, HTSUSA, inasmuch as they do not meet

the definition of a \"bound book\" as set forth in Kessler & Co. v.

United States, 63 Cust. Ct. 513, C.D. 3944 (1969), citing Overton

& Co. v. United States, 22 Treas. Dec. 437, T.D. 32327 (1912).

In Overton, the court defined a bound book as a \"collection

of leaves of any size permanently stitched or bound together in a

cover, the binding being of the kind of work performed by the

bookbinder.\" Counsel submits numerous other lexicographic

definitions from both general and trade dictionaries which provide

similar definitions of \"bookbinding,\" and thereby arrives at the

conclusion that the Mead planners at issue are not bound in the

sense contemplated by the bookbinding trade. We note that all the

submitted definitions set forth what constitutes a bound book. The

issue at hand, however, is whether diaries with metal looseleaf

binders, or spiral binders, are considered bound diaries for tariff

classification purposes. The issue is not what constitutes a bound

book, and there is no requirement that a diary be in the format of

a book.

The Harmonized Commodity Description and Coding System

Explanatory Notes (EN) to heading 4820, page 687, which represent

the official interpretation of the HTS at the international level,

state:

\"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 the Harmonized System Committee contemplated metal

binders as being within this heading\'s definition of bound

articles.

Counsel contends that as the term \"bound\" is found for the

first time at the eight digit level (it modifies the term \"diary\"

in subheading 4820.10.20, HTSUSA), and the EN represent the

official interpretation of the HTS only at the four and six digit

level, the EN provide no instruction as to the meaning of the word

\"bound.\" While we concur that the EN need not be applied at the

eight digit level, we disagree that the EN are of \"no value\" in

this instance. The value of the EN is that they provide guidance

and insight into the intent of the Harmonized System Committee when

drafting the Nomenclature. In this case, the EN specifically set

forth how articles of heading 4820, HTSUSA, may be bound. The EN

state that articles of this heading may be bound with metal. This

office interprets this language as indicative of the drafters\'

intent to include as bound any articles possessing ring binders or

spiral binders. This position is in accordance with the courts

holding in Brooks Bros., in which an article constructed with a

spiral binding was classified as a bound dairy under item 256.56,

Tariff Schedules of the United States Annotated (TSUSA).

We further note that the manner in which items 256.56 and

256.58 were drafted under the TSUSA supports our position that the

term \"bound\" was intended to include ring binders and spiral

binders. Items 256.56 and 256.58 TSUSA, provide for:

Blank books, bound:

256.56 Diaries, notebooks and address books: \.... 4%

256.58 Other:\...\...\...\...\...\...\...\...\...\...\.....Free

If this office were to adopt counsel\'s contention, that only books

bound in the traditional bookbinding method (i.e., with stitching

and glue) were to be deemed \"bound,\" there would be no place in

item 256, TSUSA, for diaries bound with ring binders and spiral

binders as both the \"diary\" breakout and the \"other\" breakout are

modified by the term \"bound.\" This situation differs from the

current construction of the HTSUSA, where subheading 4820.10.20

provides for bound diaries and 4820.10.40 is the provision where

unbound diaries would be classified.

Lastly, we note that a semantical approach to this issue is

revealing: a binder, whether a ring binder or spiral, is that which

binds pages together in a fixed order. Pages held together in this

manner are bound, and the diary is therefore deemed a bound

article.

HOLDING:

The Mead Corporation day planners, referenced style numbers

47062, 47064, 47066, 47068, 47102, 47103, 47104, 47105, 47106,

47107, 47122, 47124, 47126, 47128, 47130, 47132, 47134, 47136,

47138, 47140, 47142, 47144, 47172, 47174, 47176, 47178 and 47180,

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.

Since the classification indicated above is the same as the

classification under which the subject entries were liquidated,

you are instructed to deny the protest in full.

A copy of this decision should be attached to the Form 19 and

provided to the protestant as part of the notice of action on the

protest. In accordance with Section 3A(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 the entry in accordance with this decision must

be accomplished prior to the mailing of the decision.

Sixty days from the date of this 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 to the public via the Diskette Subscription Service,

Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director