No. 99-1434 

In the Supreme Court of the United States 

UNITED STATES OF AMERICA, PETITIONER 

v. 

THE MEAD CORPORATION 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FEDERAL CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

KENT L. JONES 

Assistant to the Solicitor 

General 

WILLIAM KANTER 
BRUCE G. FORREST 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether classification rulings issued by the 
Customs Service are entitled to deference in deter- 
mining the proper tariff classification of imported 
goods. 

2. Whether the Customs Service reasonably inter- 
preted the statutory phrase “diaries, notebooks and 
address books, bound” in Subheading 4820.10.20 of the 
Harmonized Tariff Schedule of the United States to 
include the spiral-bound and ring-bound day planners 
imported by respondent. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 2 

Statutory and regulatory provisions involved ......................... 
2 

Statement ........................................................................................ 4 

Reasons for granting the petition ............................................... 
12 

Conclusion ....................................................................................... 23 

Appendix A ................................................................................... 
1a 

Appendix B .................................................................................... 
17a 

Appendix C .................................................................................... 
19a 

Appendix D.................................................................................... 28a 

TABLE OF AUTHORITIES 

Cases: 

Association of Bituminous Contractors, Inc. v. 

Apfel, 156 F.3d 1246 (D.C. Cir. 1998) ................................ 

18 

Auer v. Robbins, 519 U.S. 452 (1997) ......................... 

15, 16, 18 

B.F. Goodrich Co. v. United States, 94 F.3d 1545 (Fed. 

Cir. 1996) ................................................................................. 

10 

Brooks Bros. v. United States, 68 Cust. Ct. 91 

(1972) ........................................................................................ 

8, 20 

Brown v. United States, 113 U.S. 568 (1885) .................... 

14 

Central Prods. Co. v. United States, 936 F. Supp. 

1002 (Ct. Int’l Trade 1996) ................................................... 

9 

Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984) .................................. 

11, 13, 

14, 15, 16, 17, 19, 22 
Coca Cola Co. v. Atchison, Topeka, & Sante Fe Ry., 

608 F.2d 213 (5th Cir. 1979) ................................................ 

18 

Commissioner v. Stidger, 386 U.S. 287 (1967) ................. 

17 

Crystal Clear Industries v. United States, 44 F.3d 

1001 (Fed. Cir. 1995) ............................................................. 

15 

DAL-Tile Corp. v. United States, 829 F. Supp. 394 

(Ct. Int’l Trade 1993) ............................................................ 23 

(III) 

IV 

Cases—Continued: Page 

Davis v. United States, 495 U.S. 472 (1990) ...................... 

17 

Edwards’s Lessee v. Darby, 25 U.S. (12 Wheat.) 

206 (1827) ................................................................................. 

14 

Elizabeth Blackwell Health Ctr. for Women v. 

Knoll, 61 F.3d 170 (3d Cir. 1995), cert. denied, 516 

U.S. 1093 (1996) ...................................................................... 

18 

Emerson v. Steffen, 959 F.2d 119 (8th Cir. 1992) ............. 

18 

First Chicago NBD Corp. v. Commissioner, 135 F.3d 

457 (7th Cir. 1998) .................................................................. 

18 

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

(1962) ........................................................................................ 

8, 20 

Gardebring v. Jenkins, 485 U.S. 415 (1988) ...................... 

15 

Generra Sportswear Co. v. United States, 905 F.2d 

377 (Fed. Cir. 1990) ............................................................... 

23 

Gould v. Shalala, 30 F.3d 714 (6th Cir. 1994) ................... 

18 

Guess? Inc. v. United States, 944 F.2d 855 (Fed. 

Cir. 1991) ................................................................................. 

22-23 

Martin v. Occupational Safety & Health Review 

Comm’n, 499 U.S. 144 (1991) .............................................. 

15 

Martinez v. Flowers, 164 F.3d 1257 (10th Cir. 

1998) ......................................................................................... 18 

McLaren v. Fleischer, 256 U.S. 477 (1921) ....................... 

14 

Merck & Co. v. Kessler, 80 F.3d 1543 (Fed. Cir. 

1996) ......................................................................................... 18 

Mitsui Foods, Inc. v. United States, 867 F.2d 1401 

(Fed. Cir. 1989) ....................................................................... 

23 

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ........... 

19 

NationsBank of North Carolina, N.A. v. Variable 

Annuity Life Ins. Co., 513 U.S. 251 (1995) .............. 

15, 16, 22 

New York City Health & Hosps. Corp. v. Perales, 

954 F.2d 854 (2d Cir. 1992) ................................................... 

18 

Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st 

Cir. 1997) ................................................................................. 

18 

Reno v. Koray, 515 U.S. 50 (1995) ...................................... 

15 

Ritter v. Cecil County Office of Housing & Com- 
munity Dev., 33 F.3d 323 (4th Cir. 1994) ......................... 18 

V 

Cases—Continued: Page 

Rollerblade, Inc. v. United States, 112 F.3d 481 

(Fed. Cir. 1997) ........................................................ 

10, 15, 16, 23 

SEC v. Chenery Corp., 332 U.S. 194 (1947) ...................... 

19 

Shalala v. Guernsey Mem. Hosp., 514 U.S. 87 

(1995) ........................................................................................ 15 

Smiley v. Citibank (South Dakota), N.A., 517 

U.S. 735 (1996) ................................................................ 

14, 15, 19 

State of Georgia, Dep’t of Med. Assistance v. Shalala, 

8 F.3d 1565 (11th Cir. 1993) ................................................. 

18 

Trainer v. United States, 800 F.2d 1086 (Fed. Cir. 

1986) ......................................................................................... 10 

Udall v. Tallman, 380 U.S. 1 (1965) ................................... 

14 

United States v. American Bar Endowment, 477 

U.S. 105 (1986) ........................................................................ 

23 

United States v. Correll, 389 U.S. 299 (1967) .................... 

16, 22 

United States v. Goodyear Tire & Rubber Co., 

493 U.S. 132 (1989) ................................................................ 

23 

United States v. Haggar Apparel Co., 526 U.S. 380 

(1999) ............................................................... 

9, 10, 15, 16, 17, 23 

United States v. Hill, 506 U.S. 546 (1993) ......................... 

23 

United States v. Vowell, 9 U.S. (5 Cranch) 368 

(1809) ........................................................................................ 22 

Warder v. Shalala, 149 F.3d 73 (1st Cir. 1998), 

cert. denied, 119 S. Ct. 1455 (1999) ..................................... 

19 

Washington v. HCA Health Servs. of Texas, Inc., 

152 F.3d 464 (5th Cir. 1998) ................................................. 

18 

Wilshire Westwood Assocs. v. Atlantic Richfield 

Corp., 881 F.2d 801 (9th Cir. 1989) .................................... 

19 

Zenith Radio Corp. v. United States, 437 U.S. 443 

(1978) ........................................................................................ 

17, 22 

Statutes and regulations: 

Tariff Act of 1930, 19 U.S.C. 1202 et seq.: 

Harmonized Tariff Schedules of the United States: 

19 U.S.C. 1202 (Supp. IV 1998) ...................................... 5 

VI 

Statutes and regulations—Continued: 
Page 

19 U.S.C. 1202 (Supp. I 1995) .......................................... 

2, 3, 5 

General note 20 ............................................................ 

2 

Subheading 4820.10 .................................................... 

6 

Subheading 4820.10.20 .............. 

3, 5, 7, 9, 11, 12, 19, 20 

Subheading 4820.10.40 ............................................ 

5 

19 U.S.C. 1500(a) .................................................................... 

14 

19 U.S.C. 1500(b) ................................................................... 

14 

19 U.S.C. 1502(a) .......................................................... 

2, 4, 13, 14 

19 U.S.C. 1515(a) .............................................................. 

4, 13, 14 

19 U.S.C. 1624 ........................................................................ 

2 

28 U.S.C. 1295(a)(5) .................................................................. 

9 

28 U.S.C. 1581(a) ....................................................................... 

8 

19 C.F.R.: 

Section 177.9(a) ................................................................... 

3, 4, 10 

Section 177.10(a) ................................................................. 

3, 4, 10 

Section 177.10(c) ................................................................... 
11 

Section 177.11(a) ................................................................... 
4 

Miscellaneous: 

Headquarters Ruling: 

No. 955199, 1994 WL 85353 (Customs Jan. 24, 1994) ...... 

9 

No. 955937, 1994 WL 712863 (Customs Oct. 21, 
1994) ............................................................................. 
5, 8, 9, 20 

Headquarters Ruling Ltr.: 

No. 955636, 1994 WL 220733 (Customs Apr. 6, 
1994) ................................................................................. 

5, 9, 20 
No. 955637, 1994 WL 220734 (Customs Apr. 6, 
1994) ............................................................................... 
5, 9, 20 

H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess. 
(1988) ........................................................................................ 14 

Re, Litigation Before the United States Court of Inter- 
national Trade, 19 U.S.C.A. §§ 1-1300, Cum. Ann. 

Pocket Part, at XI, XL-XLI (1998) .................................... 
23 

Oxford English Dictionary (1987) ................................... 6, 11, 20 

In the Supreme Court of the United States 

No. 99-1434 

UNITED STATES OF AMERICA, PETITIONER 

v. 

THE MEAD CORPORATION 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FEDERAL CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the United States, 
petitions for a writ of certiorari to review the judgment 
of the United States Court of Appeals for the Federal 
Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
16a) is reported at 185 F.3d 1304. The opinion of the 
Court of International Trade (App., infra, 19a-27a) is 
reported at 17 F. Supp. 2d 1004. The Customs Service 
ruling (App., infra, 28a-47a) that applies to this case is 
cited as HQ No. 955937 and is reported unofficially at 
1994 WL 712863 (Customs). 

(1) 

2 

JURISDICTION 

The judgment of the court of appeals was entered on 
July 28, 1999. A petition for rehearing was denied on 
November 1, 1999 (App., infra, 17a). On January 19, 
2000, the Chief Justice extended the time for filing a 
petition for a writ of certiorari to March 1, 2000. The 
jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1). 

STATUTORY AND REGULATORY 
PROVISIONS INVOLVED 

1. General Note 20 of the Harmonized Tariff Sched- 
ules of the United States, 19 U.S.C. 1202 (Supp. I 1995), 
provides in relevant part: 

The Secretary of the Treasury is hereby author- 
ized to issue rules and regulations governing the 
admission of articles under the provisions of the 
tariff schedules. * * * 

2. 19 U.S.C. 1502(a) provides in relevant part: 

The Secretary of the Treasury shall establish and 
promulgate such rules and regulations not incon- 
sistent with the law (including regulations estab- 
lishing procedures for the issuance of binding rul- 
ings prior to the entry of the merchandise con- 
cerned), and may disseminate such information as 
may be necessary to secure a just, impartial, and 
uniform appraisement of imported merchandise and 
the classification and assessment of duties thereon 
at the various ports of entry. * * * 

3. 19 U.S.C. 1624 provides: 

In addition to the specific powers conferred by 
this chapter the Secretary of the Treasury is 
authorized to make such rules and regulations as 

3 

may be necessary to carry out the provisions of this 
chapter. 

4. For the period that this case involves, Subheading 
4820.10.20 of the Harmonized Tariff Schedules of the 
United States, 19 U.S.C. 1202 (Supp. I 1995), provides a 
rate of duty of 3.2% for: 

Diaries, notebooks and address books, bound; 
memorandum pads, letter pads and similar articles 

* * * . 

5. 19 C.F.R. 177.9(a) provides in relevant part: 

Effect of ruling letters generally. A ruling letter 
issued by the Customs Service under the provisions 
of this part represents the official position of the 
Customs Service with respect to the particular 
transaction or issue described therein and is binding 
on all Customs Service personnel in accordance 
with the provisions of this section until modified or 
revoked. In the absence of a change of practice or 
other modification or revocation which affects the 
principle of the ruling set forth in the ruling letter, 
that principle may be cited as authority in the dis- 
position of transactions involving the same cir- 
cumstances. Generally, a ruling letter is effective 
on the date it is issued and may be applied to all 
entries which are unliquidated, or other trans- 
actions with respect to which the Customs Service 
has not taken final action on that date. * * * 

6. 19 C.F.R. 177.10(a) provides in relevant part: 

Generally. Within 120 days after issuing any 
precedential decision under the Tariff Act of 1930, 
as amended, relating to any Customs transaction 
(prospective, current, or completed), the Customs 
Service shall publish the decision in the Customs 

4 

Bulletin or otherwise make it available for public 
inspection. For purposes of this paragraph a 
precedential decision includes any ruling letter, 
internal advice memorandum, or protest review 
decision. * * * 

STATEMENT 

This case concerns whether judicial deference is 
owed to the tariff classification rulings issued by the 
Customs Service under 19 U.S.C. 1502(a). That statute 
authorizes the Secretary of the Treasury to adopt 
“rules and regulations” providing for the issuance of 
such “binding rulings prior to the entry of the mer- 
chandise” as may “be necessary to secure a just, im- 
partial, and uniform appraisement of imported mer- 
chandise and the classification and assessment of duties 
thereon * * * .” 19 U.S.C. 1502(a). Pursuant to that 
authority, the Secretary has provided for the issuance 
of tariff classification rulings by the Customs Service 
which are “binding on all Customs Service personnel” 
and which, “[i]n the absence of a change of practice or 
other modification or revocation which affects the 
principle of the ruling set forth in the ruling letter, 

* * * may be cited as authority in the disposition of 
transactions involving the same circumstances.” 19 
C.F.R. 177.9(a). In addition, the Customs Service is 
authorized to issue classification rulings in connection 
with specific merchandise already imported, 19 C.F.R. 
177.11(a), and to issue decisions on protests from cus- 
toms classification determinations, 19 U.S.C. 1515(a). 
The classification determinations set forth in such 
rulings and protest review decisions are also “pre- 
cedential” in effect. 19 C.F.R. 177.10(a). 

In the present case, the Federal Circuit held that 
these tariff classification rulings of the Customs Service 

5 

are to be given no judicial deference, and are instead to 
be disregarded utterly in interpreting the customs 
provisions. App., infra, 6a-7a. That holding warrants 
this Court’s review. 

1. Respondent imports “daily planners,” which are 
“loose-leaf books containing calendars, room for daily 
notes, telephone numbers, addresses and notepads. 
This sort of product is probably best known under 
the trademark of Filofax.” App., infra, 19a. Under 
Subheading 4820.10.20 of the Harmonized Tariff Sched- 
ule of the United States (HTSUS), 19 U.S.C. 1202 
(Supp. I 1995), if such items are properly classified as 
“bound” “diaries,” they are subject to an import duty of 

3.2% of their value.1 If, however, these items are not 
“bound” or are not “diaries,” they would then fall under 
Subheading 4820.10.40 of the HTSUS as “[o]ther” items 
for which no duty applies. App., infra, 20a-21a, 24a. 

In 1993, when respondent imported its daily planners 
into the United States, they were classified as “bound” 
“diaries” to which the 3.2% duty applied. Respondent 
filed an administrative protest of that classification. On 
October 21, 1994, the Customs Service issued a detailed 
denial of that protest in Headquarters Ruling (HQ) No. 
955937, 1994 WL 712863 (Customs). App., infra, 28a- 
47a. That ruling noted that the issue presented by re- 
spondent “has been addressed in several rulings by this 
office” (id. at 31a-32a (citing, e.g., Headquarters Ruling 
Letters (HRL) Nos. 955636, 1994 WL 220733 (Customs 
Apr. 6, 1994) and 955637, 1994 WL 220734 (Customs 
Apr. 6, 1994))): 

1 The rate of duty on these items has been reduced since this 
case arose. It is currently 1.6%. HSTUS Subheading 4820.10.20, 
19 U.S.C. 1202 (Supp. IV 1998). 

6 

In these rulings this office has consistently deter- 
mined 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. 

The agency noted that the text of Subheading 4820.10, 
“the common dictionary definition of ‘diary’, and past 
Customs rulings” all reflect that such daily planners are 
properly “classifiable as a diary.” App., infra, 32a. 

The Customs Service explained that the daily plan- 
ners imported by respondent “fit squarely” within one 
of the definitions of the word “diary” contained in the 
Oxford English Dictionary—as “[a] book prepared for 
keeping a daily record, or having spaces with printed 
dates for daily memoranda and jottings.” App., infra, 
32a-33a. The Service rejected respondent’s assertion 
that the agency should base its classification of such 
merchandise solely on the first enumerated definition of 
“diary” in one dictionary as “[a] daily record of events 
or transactions, a journal.” Id. at 33a. The agency 
explained that “[m]any words have several definitions 
and Customs may consider any or all of them when 
making a classification determination.” Ibid. The 
agency concluded that the broader definition of the 
term “diary” adopted in its rulings “reflects the com- 
mon and commercial identity of these items in the 
marketplace”—a fact evidenced by the common usage 
of the term “desk diary” to describe the imported mer- 
chandise. Id. at 34a. 

Noting that customs provisions commonly incor- 
porate prevailing commercial usages, the agency con- 
cluded that “there are many forms of ‘diaries’ ” and that 

7 

“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.” App., infra, 39a- 
40a. Since the daily planners imported by respondent 
are designed for those exact functions, the agency 
concluded that they constitute “diaries” within the 
meaning of HTSUS 4820.10.20. Id. at 34a, 43a. 

The Customs Service further concluded that the daily 
planners imported by respondent are “bound” within 
the meaning of the statutory classification provision. 
App., infra, 44a-47a. The agency emphasized that, in 
determining what constitutes a “bound” “diary,” the 
traditional elements of formal “bookbinding” are not 
applicable. “The issue is not what constitutes a bound 
book, and there is no requirement that a diary be in the 
format of a book.” Id. at 44a. Instead, the agency noted 
that the official explanation of the term “bound” in 
the notes of the Harmonized System Committee—the 
international authority that drafted this customs 
provision—states that the term “bound” includes 
“reinforcements or fittings of metal, plastics, etc.” Id. 
at 45a. The Customs Service noted that “this language 
[is] indicative of the drafters’ intent to include as bound 
any articles possessing ring binders or spiral binders.” 
Ibid. The agency concluded that, “whether ring binder 
or spiral” binder is used, “pages held together in this 
manner” are “bound” for the purposes of this customs 
provision. Id. at 46a. 

Since respondent’s daily planners are bound in this 
very manner, the Customs Service ruled that these 
articles are “bound” “diaries” to which the 3.2% duty 
applied under HTSUS 4820.10.20. App., infra, 46a-47a. 

8 

Respondent did not seek judicial review of that classifi- 
cation decision. 

2. Six months later, however, respondent imported 
additional articles of the same type. The agency again 
ruled that these daily planners are subject to duty as 
“bound” “diaries.” Respondent then raised exactly the 
same protest that the agency had just reviewed and 
rejected in HQ No. 955937. When that protest was 
again denied by the agency, respondent brought this 
action in the United States Court of International 
Trade to seek review of the agency’s classification 
determination. App., infra, 19a. 

3. The Court of International Trade has exclusive 
jurisdiction to review the denial of a protest from a 
Customs Service classification decision. 28 U.S.C. 
1581(a). On cross-motions for summary judgment, the 
court upheld the agency’s determination in this case. 
The court noted that respondent’s daily planners 
were “designed for notations concerning the full range 
of daily experience” and that any “supplementary 
material” they contain does not alter their primary 
character as business diaries. App., infra, 25a. The 
court explained that its prior decisions in Fred 
Baumgarten v. United States, 49 Cust. Ct. 275 (1962), 
and Brooks Bros. v. United States, 68 Cust. Ct. 91 
(1972), indicate that when, as here, “the diary portion 
was the essential or indispensable part of the im- 
portation,” that is “controlling of its classification.” 
App., infra, 22a. The court noted that the the current 
“tariff language” in the HSTUS was “adopted with 
knowledge of these judicial precedents.” Id. at 23a 

9 

(citing Central Prods. Co. v. United States, 936 F. 
Supp. 1002, 1006-1007 (Ct. Int’l Trade 1996)).2 

The court also upheld the conclusion of the Customs 
Service that respondent’s diaries were “bound” for 
purposes of HTSUS 4820.10.20. The court explained 
that “[t]he common meaning of ‘bound’ is fastened. The 
irrevocability of the fastening is not important so long 
as it goes beyond the transitory role of packaging.” 
App., infra, 26a. 

4. The Federal Circuit has exclusive jurisdiction to 
review decisions of the Court of International Trade. 
28 U.S.C. 1295(a)(5). On appeal from the decision in this 
case, the Federal Circuit reversed. App., infra, 1a-16a. 

a. The court of appeals first addressed whether it 
would afford deference to the classification rulings of 
the Customs Service in determining the proper “mean- 
ing and scope of tariff terms.” App., infra, 4a. The 
court noted that, in United States v. Haggar Apparel 
Co., 526 U.S. 380, 391 (1999), this Court held that (App., 
infra, 5a): 

if an HTSUS provision is ambiguous and Customs 
promulgates a regulation that “fills a gap or defines 
a term in a way that is reasonable in light of the 
legislature’s revealed design,” courts should give 
that judgment “controlling weight” as articulated in 

2 The Court of International Trade did not cite or rely upon 
the Headquarters Rulings (HQ No. 955937 and HRL Nos. 955636 
& 955637) that the Customs Service issued to respondent in re- 
solving this same issue in 1994. See page 5, supra. The court did, 
however, find support for its interpretation in a different Customs 
Service ruling, HQ No. 955199, 1994 WL 85353 (Customs Jan. 24, 
1994), in which the agency explained the distinction between items 
that are “similar” to diaries (for which a duty applies) and “other” 
items (for which no duty is applicable). App., infra, 24a (“The 
rationale used in that ruling is persuasive * * * .”). 

10 

Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 844 [1984]. 

The Federal Circuit reasoned, however, “that Haggar, 
and thus Chevron deference, does not extend to 
ordinary classification rulings [of the Customs Serv- 
ice].” Ibid. The court stated that deference is 
inappropriate for tariff classification rulings because 
those rulings are issued without the benefit of public 
comment, “do not carry the force of law and are not, 
like regulations, intended to clarify the rights and 
obligations of importers beyond the specific case under 
review.” 3 Id. at 6a. The court stated that the 
“significant differences between Customs regulations 
and Customs rulings convince this court that Haggar’s 
reach does not extend to standard Customs rulings.” 
Id. at 6a-7a.4 The court of appeals concluded that it 
would therefore “continue[] to adhere to its [pre- 
Haggar] precedent giving no deference to such rulings.” 
Id. at 7a (citing Rollerblade, Inc. v. United States, 112 
F.3d 481, 484 (Fed. Cir. 1997)).5 

3 In so stating, the court of appeals failed to consider or ad- 
dress the express language of the regulations which makes such 
rulings “binding on all Customs Service personnel” and which 
specifies that “the principle” of the rulings “may be cited as 
authority in the disposition of transactions involving the same 
circumstances.” 19 C.F.R. 177.9(a). See also 19 C.F.R. 177.10(a) 

(protest review decisions are “precedential”). 

4 The court compared Customs Service classification rulings to 
IRS interpretive rulings, which the court stated have no “binding 
effect” on the courts. App., infra, 7a (citing, e.g., B.F. Goodrich Co. 

v. United States, 94 F.3d 1545, 1550 n.5 (Fed. Cir. 1996); Trainer v. 
United States, 800 F.2d 1086, 1090 n.7 (Fed. Cir. 1986)). But see 
note 6, infra. 

5 Under Customs Service regulations, a new interpretation 
that would increase the duty from that applicable under a prior 

11 

b. Having thus chosen simply to disregard the inter- 
pretive classification rulings of the Customs Service, 
the Federal Circuit found it unnecessary to address or 
consider the detailed reasoning adopted by the 
Customs Service in issuing the Headquarters Rulings 
that apply to the facts of this case. See pages 5-7, 
supra. The court instead looked primarily to what it 
regarded as an appropriate dictionary definition of the 
term “diary” in the Oxford English Dictionary and con- 
cluded that, to be a “diary,” an item of merchandise 
must have “relatively extensive” space for the record- 
ing not only “of the events themselves, but also a 
person’s observations, thoughts, or feelings about 
them.” App., infra, 12a. Giving no weight to the 
common commercial use of the term “diary,” the court 
expressed the view that a daily planner that contains 
“a place to jot down the date and time” of future 
appointments cannot qualify as a “diary” because the 
very essence of a “diary” is to be “retrospective, not 
prospective.” Id. at 12a-13a. 

Applying “the above principles,” the court concluded 
that respondent’s daily planners are not “diaries” 
within the meaning of HTSUS Subheading 4820.10.20 
because (i) “the space provided” in those planners 
“would not permit a diarist to record relatively exten- 
sive notations about events, observations, feelings, or 
thoughts” and, (ii) while “[t]hese pages facilitate 
advance planning and scheduling[,] * * * a diary is not 
for planning.” App., infra, 13a-14a. 

interpretation may not be adopted without prior Federal Register 
notice and opportunity for public comment. 19 C.F.R. 177.10(c). 
The court of appeals reserved the question whether such revoca- 
tion decisions would be entitled to deference under Chevron. App., 
infra, 6a n.1. 

12 

c. The court of appeals further concluded that 
respondent’s daily planners are not “bound” within the 
meaning of the HSTUS 4208.10.20. To determine the 
meaning of this customs provision, the court looked to 
a book publishing industry definition of a “bound book” 
as a book that is “sewn, glued, or stapled into perma- 
nent bindings.” App., infra, 15a. The court stated that 
a diary may be considered as “bound” under this book 
publishing definition only if a “permanent” binding has 
been employed. Ibid. Because respondents’ product is 
“contained in ringed loose-leaf binders” that lack the 
“permanent” character of a “bound book,” the court 
held that these items are not “bound” within the mean- 
ing of the tariff provision. Id. at 15a-16a. 

In reaching that conclusion, the court of appeals did 
not address the reasoning of the applicable Head- 
quarters Rulings or of the authorities cited therein. In 
particular, the court of appeals did not acknowledge or 
discuss the official interpretive statements of the 
Harmonized System Committee (which drafted these 
tariff provisions) which explain that the term “bound” 
“diaries” as used in HTSUS 4820.10.20 includes diaries 
that are bound with metal fittings, such as rings or 
spirals. See App., infra, 45a; page 7, supra. 

d. The court of appeals held that, since respondents’ 
daily planners are similar to, but are not, “bound” 
“diaries” within the meaning of this tariff provision, 
they are to be “classified under the ‘other’ subheading 
of [HTSUS] 4820.10.40,” for which no duty applies. 
App., infra, 16a. The United States filed a timely 
petition for rehearing with suggestion for rehearing en 
banc. A response to the petition was requested by the 
court from respondent. The court thereafter denied the 
petition without a published vote. Id. at 17a. 

13 

REASONS FOR GRANTING THE PETITION 

The decision of the court of appeals departs from the 
consistent decisions of this Court and other courts of 
appeals that accord deference to the formal inter- 
pretations of statutes adopted by the agencies charged 
with their implementation. By denying deference to 
the Customs Service rulings that interpret and apply 
the detailed classification provisions of the Tariff Act, 
the decision in this case has left importers and the 
Customs Service without effective guidance for a wide 
range of transactions. Under the decision in this case, 
the ultimate application of customs provisions often 
cannot be determined or even reliably predicted except 
upon completion of judicial proceedings that occur well 
after the relevant transactions have been planned and 
conducted. By authorizing the agency to issue, in 
advance, “binding rulings prior to the entry of the mer- 
chandise,” 19 U.S.C. 1502(a), and to issue precedential 
protest review decisions, 19 U.S.C. 1515(a), Congress 
sought to avoid the very uncertainty and wasteful 
litigation that the decision in this case promotes. 

The petition for a writ of certiorari should be granted 
because of the clear departure of the decision below 
from the standards of deference required by the de- 
cisions of this Court and because of the exceptional 
importance of the questions presented to the planning 
of commercial transactions and to the administration of 
the customs laws. 

1. a. It has long been a bedrock legal principle that 
courts are to accord deference to the formal inter- 
pretations of a statute adopted by the agency that has 
been “charged with responsibility for administering 
the provision” by Congress. Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837, 

14 

865 (1984). See, e.g., Smiley v. Citibank (South 
Dakota), N.A., 517 U.S. 735, 739 (1996) (“It is our 
practice to defer to the reasonable judgments of agen- 
cies with regard to the meaning of ambiguous terms in 
statutes that they are charged with administering.”); 
Udall v. Tallman, 380 U.S. 1, 16 (1965); McLaren v. 
Fleischer, 256 U.S. 477, 481 (1921); Brown v. United 
States, 113 U.S. 568, 570-571 (1885); Edwards’s Lessee 

v. Darby, 25 U.S. (12 Wheat.) 206, 209-210 (1827). The 
deference that this Court has consistently accorded to 
agency interpretations in decisions such as Chevron is 
fully applicable here. 

Congress has authorized the agency to adopt such 
“binding rulings prior to the entry of the merchandise” 
as may “be necessary to secure a just, impartial, and 
uniform appraisement of imported merchandise and the 
classification and assessment of duties thereon * * * .” 
19 U.S.C. 1502(a). Congress has further specified that, 
under the “rules and regulations prescribed by the 
Secretary,” the Customs Service is to determine “the 
final appraisement of merchandise” and “fix the final 
classification and rate of duty applicable to such mer- 
chandise,” 19 U.S.C. 1500(a), (b), and is then to issue de- 
cisions on any protests from such classification determi- 
nations, 19 U.S.C. 1515(a). In view of these broad dele- 
gations of authority, Congress emphasized in enacting 
the Harmonized Tariff Schedule of the United States in 
1988 that “[t]he Customs Service will be responsible for 
interpreting and applying” this statute. H.R. Conf. 
Rep. No. 576, 100th Cong., 2d Sess. 549-550 (1988). 

The reasoning of Chevron thus applies directly here. 
Courts are to defer to the agency’s reasonable inter- 
pretation of the statute it administers because of the 
“presumption that Congress, when it left ambiguity in 
a statute meant for implementation by an agency, 

15 

understood that the ambiguity would be resolved, first 
and foremost, by the agency, and desired the agency 
(rather than the courts) to possess whatever degree of 
discretion the ambiguity allows.” Smiley v. Citibank 
(South Dakota), N.A., 517 U.S. 735, 740-741 (1996). 

b. This Court has not limited application of this 
principle of judicial deference solely to agency inter- 
pretations that are set forth in formal regulations. 
Instead, deference has been extended whenever the 
Court is satisfied that the interpretation “reflect[s] the 
agency’s fair and considered judgment on the matter 
in question.” Auer v. Robbins, 519 U.S. 452, 462 (1997) 
(agency litigation brief). See also Reno v. Koray, 
515 U.S. 50, 61 (1995) (internal agency guidelines); 
Shalala v. Guernsey Mem. Hosp. 514 U.S. 87, 99 (1995) 
(agency’s program manual); Martin v. Occupational 
Safety & Health Review Comm’n, 499 U.S. 144, 157 
(1991) (agency’s administrative litigating position); 
Gardebring v. Jenkins, 485 U.S. 415, 429-430 (1988) 
(government’s litigation position). 

The Federal Circuit, however, has recently been 
reluctant to accept application of the judicial deference 
principles of Chevron to cases involving the collection of 
customs duties. In a line of cases that began in dicta in 
Crystal Clear Industries v. United States, 44 F.3d 1001, 
1003 * (Fed. Cir. 1995), and culminated in Rollerblade, 
Inc. v. United States, 112 F.3d 481, 484 (Fed. Cir. 1997), 
the Federal Circuit has declined to give any deference 
to the agency’s interpretations of the customs laws. 
This Court unanimously rejected those recent holdings 
of the Federal Circuit in United States v. Haggar 
Apparel Co., 526 U.S. 380, 391-392 (1999). In Haggar, 
the Court held that, when “the agency’s statutory inter- 
pretation ‘fills a gap or defines a term in a way that is 
reasonable in light of the legislature’s revealed design, 

16 

we give [that] judgment “controlling weight.” ’ ” Id. at 
392 (quoting NationsBank of North Carolina, N.A. v. 
Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) 
(quoting Chevron, 467 U.S. at 844)). 

In the present case, however, instead of following the 
directives of Chevron and Haggar, the court of appeals 
stated that it would “continue[] to adhere to its pre- 
cedent giving no deference to such rulings.” App., 
infra, 7a (citing Rollerblade, Inc. v. United States, 112 
F.3d at 484). The court stated that its refusal to follow 
Chevron and Haggar in the present case was justified 
by the difference “between Customs regulations 
[involved in Haggar] and customs rulings [involved in 
this case]” (App., infra, 6a). The court’s holding that no 
deference is owed to administrative interpretations 
unless they are set forth in formal regulations, how- 
ever, squarely conflicts with the decisions of this Court 
and other courts of appeals. 

For example, in NationsBank of North Carolina, 
N.A. v. Variable Annuity Life Insurance Co., 513 U.S. 
at 257—which this Court prominently cited and quoted 
in Haggar, 526 U.S. at 391-392—the Court held that 
deference must be given to “an expert administrator’s 
statutory exposition” even though the agency’s inter- 
pretation was not set forth in any regulation or formal 
ruling. The Court held that, because the admini- 
strator’s “construction of the Act is reasonable,” it 
“warrants judicial deference.” 513 U.S. at 254. See also 
Auer v. Robbins, 519 U.S. at 462; cases cited page 15, 
supra.6 And, in a decision that applies directly to this 

6 The Federal Circuit manifestly erred in suggesting that 
deference may not be owed to Revenue Rulings issued under the 
Internal Revenue Code. See App., infra, 7a. In United States v. 
Correll, 389 U.S. 299, 302 n.10 (1967), this Court reviewed a 

17 

case, the Court in Zenith Radio Corp. v. United States, 
437 U.S. 443, 450 (1978), upheld a Treasury ruling that 
interpreted the countervailing duty provisions of the 
Tariff Act—even though that ruling was not contained 
in a notice-and-comment regulation. The Court con- 
cluded that the agency’s “longstanding and consistent 
administrative interpretation is entitled to considerable 
weight” and should be sustained if it reflects a 
“sufficiently reasonable” elaboration of the statutory 
scheme. Ibid. 

The Federal Circuit’s determination to give no defer- 
ence to the agency’s reasonable exposition of the 
statute in this case thus directly conflicts with Zenith 
Radio, as well as with Haggar and Chevron. It also 
conflicts with the decisions of numerous courts of 
appeals holding that agency interpretations adopted by 
means other than formal regulations are entitled to 

Revenue Ruling that interpreted a provision of the Code that 
concerned a deduction for business expenses incurred away from 
home. The Court held that, although “[a]lternatives to the Com- 
missioner’s * * * rule are of course available,” the agency’s 
interpretation must be upheld when it is “reasonable” because 
“Congress has delegated to the Commissioner, not to the courts, 
the task of prescribing ‘all needful rules and regulations for the 
enforcement’ of the Internal Revenue Code. 26 U.S.C. § 7805(a).” 
389 U.S. at 306-307. The Court held in Correll that, “[i]n this area 
of limitless factual variations, ‘it is the province of Congress and 
the Commissioner, not the courts, to make the appropriate 
adjustments.’ ” 389 U.S. at 307 (quoting Commissioner v. Stidger, 
386 U.S. 287, 296 (1967)). In Davis v. United States, 495 U.S. 472, 
484 (1990), the Court further explained that, while revenue rulings 
“do not have the force and effect of regulations,” the “agency’s 
interpretations and practices” are nonetheless to be given “con- 
siderable weight” when “they involve the contemporaneous con- 
struction” of the statute or “have been in long use.” Ibid. The 
Federal Circuit erred in ignoring this longstanding precedent in 
stating its opposite view in this case. 

18 

judicial deference. See, e.g., Auer v. Robbins, 519 U.S. 
at 462; Association of Bituminous Contractors, Inc. v. 
Apfel, 156 F.3d 1246, 1251-1252 (D.C. Cir. 1998); Gould 

v. Shalala, 30 F.3d 714, 719-720 & n.7 (6th Cir. 1994); 
State of Georgia, Dep’t of Med. Assistance v. Shalala, 
8 F.3d 1565, 1571 n.8 (11th Cir. 1993); Coca Cola Co. v. 
Atchison, Topeka, & Sante Fe Ry., 608 F.2d 213, 215 
(5th Cir. 1979). See also Elizabeth Blackwell Health 
Ctr. for Women v. Knoll, 61 F.3d 170, 181-182 (3d Cir. 
1995) (according deference to agency policy statement), 
cert. denied, 516 U.S. 1093 (1996); Emerson v. Steffen, 
959 F.2d 119, 122 (8th Cir. 1992) (same). 

The courts of appeals have described more than one 
standard of judicial deference for the various types of 
agency interpretations that are not set forth in formal 
regulations. Compare, e.g., First Chicago NBD Corp. v. 
Commissioner, 135 F.3d 457, 459 (7th Cir. 1998); 
Martinez v. Flowers, 164 F.3d 1257, 1260 (10th Cir. 
1998); Washington v. HCA Health Servs. of Texas, Inc., 
152 F.3d 464, 469 (5th Cir. 1998); Reich v. John Alden 
Life Ins. Co., 126 F.3d 1, 7 (1st Cir. 1997); New York 
City Health & Hosps. Corp. v. Perales, 954 F.2d 854, 
861 (2d Cir. 1992). See also Merck & Co. v. Kessler, 80 
F.3d 1543, 1550 (Fed. Cir. 1996). All courts of appeals 
other than the Federal Circuit, however, accord either 
substantial weight or controlling weight to the formal 
rulings issued by an agency’s headquarters for guidance 
to the public.7 No court of appeals has joined the 

7 For example, in Ritter v. Cecil County Office of Housing & 
Community Development, 33 F.3d 323, 328 (4th Cir. 1994), the 
court explained that “[a]lthough less deference may be due when 
considering an agency’s interpretative rules than when a federal 
agency adopts regulations through the official rulemaking process, 

* * * the nature of our inquiry * * * is quite similar.” See also 
Warder v. Shalala, 149 F.3d 73, 57 (1st Cir. 1998) (it is not neces- 

19 

Federal Circuit in categorically disqualifying from any 
deference the entire body of an agency’s formal inter- 
pretative rulings that are not contained in the agency’s 
notice-and-comment regulations.8 

The uniquely non- 
deferential treatment afforded by the Federal Circuit 
to administrative interpretations—arising in a court of 
appeals whose central function is to review actions 
taken by federal agencies—warrants review by this 
Court. 

2. Under the proper standard of deference that 
applies to agency interpretations of the “statutes that 
they are charged with administering” (Smiley v. Citi- 
bank (South Dakota), N.A., 517 U.S. at 739), the Cus- 
toms Service classification ruling should have been 
sustained in this case. The Headquarters Rulings at 
issue in this case were not sparsely explained or hidden 
from public view. See App., infra, 28a-47a. To the 
contrary, the agency’s rulings set forth a significantly 
more refined, and less wooden, interpretation of the 
statutory language than is manifested in the decision of 
the court of appeals. 

The tariff classification issue in this case requires 
interpretation of two terms in Subheading 4820.10.20 of 
the HTSUS—“diaries” and “bound.” The court of 
appeals refused to consider the detailed Headquarters 
Rulings (HQ No. 955937 and HRL Nos. 955636, 955637) 

sary to choose between Chevron and Skidmore formulations when 
the government’s interpretation prevails under either), cert. 
denied, 119 S. Ct. 1455 (1999); Wilshire Westwood Assocs. v. 
Atlantic Richfield Corp., 881 F.2d 801, 809 (9th Cir. 1989). 

8 This Court has made clear that the procedure chosen by a 
federal agency—rulemaking versus adjudication—is a matter 
properly left to the discretion of the agency. See NLRB v. Bell 
Aerospace Co., 416 U.S. 267, 292-293 (1974); SEC v. Chenery Corp., 
332 U.S. 194, 202 (1947). 

20 

issued by the Customs Service that have “consistently 
determined that articles similar in design and/or 
function to the instant merchandise are classifiable as 
diaries.” App., infra, 31a. In these rulings, the Service 
has rejected respondent’s reliance on narrowly selected 
dictionary definitions, noting that “[m]any words have 
several definitions and Customs may consider any or all 
of them when making a classification determination.” 
Id. at 33a.9 In particular, the Customs Service has 
explained that reliance on any single, narrow definition 
is inconsistent with the commercial context in which the 
tariff provisions apply: business “diaries” are a recog- 
nized commercial product and this “broader concept of 
diary * * * reflects the common and commercial 
identity of these items in the marketplace.” Id. at 34a. 

10 

The Customs Service has also properly concluded 
that these daily planners are “bound” for purposes of 
HTSUS 4820.10.20. App., infra, 44a-46a. The Customs 
Service disagreed with respondent’s contention that a 
definition of a “bound book” from the publishing 
industry controls in determining whether a “diary” is 
“bound” under this Subheading. “The issue is not what 
constitutes a bound book, and there is no requirement 
that a diary be in the format of a book.” Id. at 44a. The 
Service instead relied on the Harmonized Commodity 

9 The Customs Service correctly noted 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.” App., infra, 33a. 

10 The Customs Service found additional support for this func- 
tional approach in the precedents of the former Customs Court. 
App., infra, 36a-40a (citing Fred Baumgarten v. United States, 49 
Cust. Ct. 275 (1962), and Brooks Bros. v. United States, 68 Cust. 
Ct. 91 (1972)). 

21 

Description and Coding System Explanatory Notes— 
“which represent the official interpretation of the HTS 
at the international level”—which state that “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.” 
Id. at 45a. The agency concluded that this official ex- 
planation makes it “clear that the Harmonized System 
Committee contemplated metal binders as being within 
this heading’s definition of bound articles.” Ibid. The 
conclusion that respondent’s daily planners are “bound” 
under this Subheading not only comports with the 
official interpretation of the drafting authority, it also 
makes “semantic” sense: “[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.” Id. at 46a. 

The court of appeals did not suggest that the 
agency’s thorough, well-formulated interpretation of 
the statute is not a reasonable elaboration of its pro- 
visions. Instead, the court of appeals simply displaced 
the agency’s reasonable interpretation of the Tariff Act 
with another perhaps plausible interpretation of its 
own. See pages 5-7, 9-12, supra. 

11 That action by the 
court of appeals was in error: “the question for the 
court is whether the agency’s answer is based on a 
permissible construction of the statute.” Chevron, 467 

11 In view of the fact that the court of appeals declined to 
consider industry usage, and failed to address the official inter- 
pretation of the tariff provision by the international drafting 
authority, it could fairly be questioned whether the decision of the 
court of appeals itself bears the indicia of a “reasonable” elabora- 
tion of the statute. See page 9-12, supra. 

22 

U.S. at 843. When, as in this case, the agency’s 
interpretation “defines a term in a way that is 
reasonable in light of the legislature’s revealed design,” 
the agency’s judgment is to be given “controlling 
weight.” Nationsbank of North Carolina, N.A. v. 
Variable Annuity Life Ins. Co., 513 U.S. at 257. 

3. The refusal of the court of appeals to defer to the 
agency’s interpretations of the detailed classification 
provisions of the Tariff Act has substantial practical 
importance. The agency has routinely employed rul- 
ings, rather than regulations, to address application of 
the detailed customs provisions to the “limitless factual 
variations” created by modern commerce (United 
States v. Correll, 389 U.S. at 307). By denying defer- 
ence to the agency’s interpretations of these intricate 
provisions, the Federal Circuit has left both importers 
and the Customs Service without effective guidance for 
a wide range of transactions. The result of the ad hoc 
approach adopted in this case is expensive customs 
litigation and unpredictable outcomes. 

There is nothing unique about the Customs Service, 
or the scheme of judicial review to which its rulings and 
decisions are subject, that would justify the anomalous 
regime imposed by the court of appeals. Deference to 
the views of the federal officials who administer tariff 
legislation is not new; it dates to the beginning of the 
customs laws and is thus as old as the Republic itself. 
See Zenith Radio Corp. v. United States, 437 U.S. at 
450; United States v. Vowell, 9 U.S. (5 Cranch) 368, 372 
(1809). Indeed, until quite recent times, the Federal 
Circuit and the Court of International Trade had con- 
sistently accorded deference to administrative inter- 
pretations in customs litigation. See, e.g., Guess? Inc. v. 
United States, 944 F.2d 855, 858 (Fed. Cir. 1991); 
Generra Sportswear Co. v. United States, 905 F.2d 377, 

23 

379 (Fed. Cir. 1990); Mitsui Foods, Inc. v. United 
States, 867 F.2d 1401, 1403 & n.3 (Fed. Cir. 1989); DAL- 
Tile Corp. v. United States, 829 F. Supp. 394 (Ct. Int’l 
Trade 1993). See also Re, Litigation Before the United 
States Court of International Trade, 19 U.S.C.A. §§ 1- 
1300, Cum. Ann. Pocket Part, at XI, XL-XLI (1998). 
The Federal Circuit’s recent departure from this 
traditional standard of deference is a development that 
this Court rejected in Haggar, 526 U.S. at 391-392 
(citing Rollerblade, supra, with disapproval). 

Absent review by this Court, however, the decision 
in this case—which seeks to revive the views rejected 
in Haggar—will have binding effect throughout the 
Nation. That is because the Court of International 
Trade has exclusive jurisdiction over customs cases, 
and the Federal Circuit has exclusive jurisdiction over 
appeals from the Court of International Trade. In 
similar circumstances, this Court has recognized the 
need for plenary review of Federal Circuit decisions of 
significant fiscal and administrative importance. See, 

e.g., United States v. Hill, 506 U.S. 546, 549 (1993); 
United States v. Goodyear Tire & Rubber Co., 493 U.S. 
132, 138 (1989); United States v. American Bar Endow- 
ment, 477 U.S. 105, 109 (1986). Such review is appropri- 
ate in this case. 

24 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

KENT L. JONES 

Assistant to the Solicitor 

General 

WILLIAM KANTER 
BRUCE G. FORREST 

Attorneys 

FEBRUARY 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FEDERAL CIRCUIT 

No. 98-1569 

THE MEAD CORPORATION, PLAINTIFF-APPELLANT 

v. 

UNITED STATES, DEFENDANT-APPELLEE 

July 28, 1999 

Before NEWMAN, RADER, and SCHALL, 

Circuit Judges. 

RADER, Circuit Judge. 

On summary judgment, the Court of International 
Trade affirmed the United States Customs Service’s 
classification of day planners imported by The Mead 
Corporation as bound diaries. Because the terms 
within subheading 4820.10.20 of the Harmonized Tariff 
Schedules of the United States (HTSUS), namely 
“diaries” and “bound,” do not encompass the imported 
articles, this court reverses. 

(1a) 

2a 

I. 

At issue are five models of Mead’s day planners 
(model nos. 47192, 47062, 47124, 47104, and 47102). 
Stylistically, the day planners differ from each other 
based on their size (ranging from 7 1/2” x 4 3/8” to 12” x 
10 5/8”), outer jacket cover material, and type of 
closure. The basic model contains a calendar, a section 
for daily notes, a section for telephone numbers and 
addresses, and a notepad. The larger models contain 
the features of the basic model and additional items 
such as a daily planner section, plastic ruler, plastic 
pouch, credit card holder, and computer diskette holder. 
A loose-leaf ringed binder holds the contents of the day 
planner, except for the notepad, which fits into the rear 
flap of the day planner’s outer cover. 

In a January 11, 1993 ruling, Customs classified the 
subject planners as bound diaries under subheading 
4820.10.20 (emphasis added): 

4820 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 
sample or for collections and book covers (in- 
cluding cover boards and book jackets) of paper 
or paperboard: 

3a 

4820.10 Registers, account books, notebooks, order 
books, receipt books, letter pads, memorandum 
pads, diaries and similar articles: 

4820.10.20 Diaries, notebooks and address books, 
bound; memorandum pads, letter pads and simi- 
lar articles 

Moving for summary judgment in the trial court, 
Mead attacked Customs’ ruling on two grounds. Mead 
argued that (1) the articles were not diaries, and (2) the 
articles were not bound. Either contention, if accepted, 
compels classification under the “other” provision of 
subheading 4820.10.40. Under that subheading, Mead 
would owe no tariff on the imported articles, in contrast 
with the 4.0% tariff assessed in Customs’ 1993 ruling. 
In support of its motion, Mead submitted dictionary 
definitions of the terms at issue, affidavits from seven 
individuals from the U.S. stationery goods industry, 
and affidavits from two bookbinding experts. The 
government cross-moved for summary judgment in 
support of Customs’ classification, offering its own defi- 
nitions of “diary” and “bound,” and submitting sup- 
porting affidavits. 

In a July 14, 1998 opinion (No. 98-101), the trial court 
granted the government’s motion. The Court of Inter- 
national Trade broadly defined “diaries” as “articles 
whose principle purpose is to allow a person to make 
daily notations concerning events of importance.” 
Using that definition, the trial court decided that 
Mead’s day planners qualify as diaries even though 
they admittedly contain “supplementary material,” that 
is, non-diary elements such as a section for addresses 
and telephone numbers. With respect to the term 
“bound,” the trial court opined: “The common meaning 

4a 

of ‘bound’ is fastened. The irrevocability of the fasten- 
ing is not important so long as it goes beyond the tran- 
sitory role of packaging.” Using that broad meaning for 
“bound,” the trial court found that Mead’s day planners, 
whose contents fit in a loose-leaf ringed binder, fall 
within that definition. 

On appeal, Mead contests the trial court’s definitions 
of “diaries” and “bound.” Mead contends that “diaries” 
means: “A book for recording a person’s observations, 
thoughts and/or events.” Mead further contends that 
an item is “bound” only when “permanently secured 
along one edge between covers in a manner tradi- 
tionally performed by a bookbinder.” 

II. 

This court reviews the Court of International Trade’s 
grant of summary judgment without deference. See 
Sharp Microelecs. Tech., Inc. v. United States, 122 F.3d 
1446, 1449 (Fed. Cir. 1997). Where, as here, the parties 
do not dispute material facts regarding the imported 
goods, the analysis of whether the trial court properly 
classified the goods collapses into a determination of the 
proper meaning and scope of the HTSUS terms. See 
SGI, Inc. v. United States, 122 F.3d 1468, 1471 (Fed. 
Cir. 1997). 

The Supreme Court’s recent pronouncement in 
United States v. Haggar Apparel Co., 526 U.S. 380, 119 
S. Ct. 1392, 143 L.Ed.2d 480 (1999) has raised questions 
concerning the standard of review applicable to deter- 
minations of the meaning and scope of tariff terms. See 
Avenues in Leather, Inc. v. United States, 178 F.3d 

5a 

1241, 1999 WL 342226, at *2 (Fed. Cir. May 20, 1999). 
The meaning of a tariff term, a matter of statutory 
interpretation, is a question of law. See Bauerhin Tech. 

v. United States, 110 F.3d 774, 776 (Fed. Cir. 1997). 
Accordingly, this court has previously accorded 
Customs’ classification rulings no deference. See 
Rollerblade, Inc. v. United States, 112 F.3d 481, 483-84 
(Fed. Cir. 1997). In Haggar, however, the Supreme 
Court held that if an HTSUS provision is ambiguous 
and Customs promulgates a regulation that “fills a gap 
or defines a term in a way that is reasonable in light of 
the legislature’s revealed design,” courts should give 
that judgment “controlling weight” as articulated in 
Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 81 
L.Ed.2d 694 (1984). Haggar, 119 S. Ct. at 1399. Thus 
this court must decide whether that decision applies in 
this case where Customs has not issued a regulation, 
but has merely issued a classification ruling implicitly 
interpreting an HTSUS provision. For the reasons 
articulated below, this court determines that Haggar, 
and thus Chevron deference, does not extend to 
ordinary classification rulings. 

The United States Code has specifically given Cus- 
toms the power to promulgate regulations. See 19 
U.S.C. § 1502(a) (1994). Where, as in Haggar, Customs 
issues a regulation under the procedural rigors dictated 
by the Administrative Procedure Act, see 5 U.S.C. 
§ 553 (1994), that regulation has the enforceability of 
law. See Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 
S. Ct. 1705, 60 L.Ed.2d 208 (1979); Bernard Schwartz, 
Administrative Law 182-83 (3d ed. 1991). A regulation, 
however, must first undergo a notice and comment 
period during which the interested public can “parti- 

6a 

cipate in the rule making through submission of written 
data, views, or arguments.” 5 U.S.C. § 553(c). More- 
over, even after promulgation, a regulation is subject to 
petitions in which interested persons may seek to 
amend or repeal the new policy. See 5 U.S.C. § 553(e). 
A regulation that endures this process carries the full 
weight of Customs’ rulemaking authority. See Parker 

v. Office of Personnel Management, 974 F.2d 164, 166 
(Fed. Cir. 1992) (recognizing that by enacting regula- 
tions, agencies put a “gloss” on their statutory inter- 
pretations). A regulation thus represents a reasoned 
and informed articulation of Customs’ statutory inter- 
pretation, which serves to “clarify the rights and obli- 
gations of importers.” Haggar, 119 S. Ct. at 1398. 

In contrast, such procedural safeguards do not 
accompany typical Customs rulings.1 The process of 
such rulings, for example, does not involve public 
debate or discussion, but is confined to the specific facts 
of and parties to the particular transaction at issue. See 
19 C.F.R. § 177.0, 177.1(a) (1998). Moreover, Customs 
rulings do not carry the force of law and are not, like 
regulations, intended to clarify the rights and obli- 
gations of importers beyond the specific case under 
review. Instead, a ruling merely interprets and applies 
Customs laws to “a specific set of facts.” 19 C.F.R. 
§ 177.1(d)(1) (defining “ruling”). These significant dif- 
ferences between Customs regulations and Customs 
rulings convince this court that Haggar’s reach does not 

1 Certain rulings—specifically, those which have the “effect of 
changing a practice”—undergo notice-and-comment procedures. 
19 C.F.R. § 177.10(c) (1998). This case does not involve such a 
ruling, and this court expresses no opinion as to what level of 
deference, if any, would apply in that circumstance. 

7a 

extend to standard Customs rulings. Accordingly, this 
court continues to adhere to its precedent giving no 
deference to such rulings. See Rollerblade, 112 F.3d at 
484. 

In reaching this conclusion, this court also finds apt 
the Supreme Court’s analogy in Haggar between trade 
and tax matters. See Haggar, 119 S. Ct. at 1400. The 
Supreme Court has decided that Treasury regulations 
interpreting tax statutes deserve deference. See Atlan- 
tic Mut. Ins. Co. v. Commissioner, 523 U.S. 382, 389, 
118 S. Ct. 1413, 140 L.Ed.2d 542 (1998) (when a term in 
the Internal Revenue Code is ambiguous, “the task that 
confronts us is to decide, not whether the Treasury 
regulation represents the best interpretation of the 
statute, but whether it represents a reasonable one.”); 
see also Schuler Indus., Inc. v. United States, 109 F.3d 
753, 755 (Fed. Cir. 1997). Internal Revenue Service 
(IRS) interpretive rulings, in contrast, “do not have the 
force and effect of regulations.” Commissioner v. 
Schleier, 515 U.S. 323, 336 n. 8, 115 S. Ct. 2159, 132 
L.Ed.2d 294 (1995). Accordingly, this court has not af- 
forded them Chevron deference. See B.F. Goodrich Co. 

v. United States, 94 F.3d 1545, 1550 n. 5 (Fed. Cir. 1996) 
(“We recognize, however, that IRS Revenue Rulings 
have no binding effect on this court.”); Trainer v. 
United States, 800 F.2d 1086, 1090 n. 7 (Fed. Cir. 1986) 
(noting that “Treasury Regulations are of greater force 
and effect than Revenue Rulings.”). 

Customs’ classifications rulings are in some ways 
an even less formalized body of interpretation than 
IRS revenue rulings. IRS revenue rulings, for 
example, issue from a single body—the IRS’s National 
Office—and appear in the Internal Revenue Bulletin. 

8a 

See 26 C.F.R. § 601.201(6) (1998). Customs’ rulings, in 
contrast, issue not only from Customs Headquarters, 
but from each port office of the Customs Service. See 
19 C.F.R. § 177.2(b)(2)(ii)(B). Moreover, while Customs 
may publish its rulings in the Customs Bulletin, the 
regulations do not require it to do so. See 19 C.F.R. 
§ 177.10(a). In short, the parallels between IRS Reve- 
nue Rulings and Customs rulings further convince this 
court that the latter, like the former, do not require 
Chevron deference. 

III. 

This court construes a tariff term according to its 
common and commercial meanings, which it presumes 
are the same. See Simod Am. Corp. v. United States, 
872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the 
common meaning of a tariff term, this court has con- 
sulted dictionaries, scientific authorities, and other 
reliable information sources. See C.J. Tower & Sons v. 
United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 
(1982). 

A. Diaries 

The trial court gleaned its broad meaning of diaries 
from three prior cases. In Baumgarten v. United 
States, 49 Cust.Ct. 275, 1962 WL 10886 (1962), the court 
considered a plastic-covered book, 4 1/4 “by 7 3/8”, 
having pages for addresses and telephone numbers 
followed by ruled pages allocated to the days of the 
year and the hours of the day. Calendars for the 
current and following months headed the ruled pages. 
The importer invoiced the articles as “desk-diaries.” In 
classifying them as diaries rather than as “other blank 

9a 

books and slate books,” the court looked first to the 
definition of a diary in Webster’s New International 
Dictionary of the English Language (2d ed. 1951): “A 
register of daily events or transactions; a daily record; 
journal; esp., a book for personal notes or memoranda, 
or for details of experiences or observations of the 
writer; also, a blank book for daily memoranda.” Id. at 
276. From this definition, the court decided: 

[T]he particular distinguishing feature of a diary is 
its suitability for the receipt of daily notations. . . . 

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. 

Id. 

In Brooks Brothers v. United States, 68 Cust. Ct. 91 
(1972), the court considered an “Economist Diary,” a 
10” by 8” spiral bound article, covered in red leather, 
with fine plate-finish parchment. The importer did not 
dispute that the Diary was composed in part of pages 
suitable for use as a diary, but argued that the Diary 
also contained printed informational material such as 
maps and thus could not be classified as “Blank books, 
bound: Diaries.” Discussing Baumgarten, the court 
noted: “Judicial authority, therefore, has adopted the 
crux of the lexicographic definitions that the ‘particular 
distinguishing feature of a diary is its suitability for the 
receipt of daily notations.’ ” 

Brooks Brothers, 68 Cust. 
Ct. at 97. The court concluded that although the infor- 
mational pages added to the usefulness or value of the 

10a 

article, the diary portion of the Economist Diary, 
“clearly ‘suitable for the receipt of daily notations,’” was 
essential. Brooks Brothers, 68 Cust. Ct. at 97-98. 

Finally, in Charles Scribner’s Sons v. United States, 
574 F. Supp. 1058, 6 C.I.T. 168 (1983), the court classi- 
fied an “Engagement Calendar,” a 9 3/8” by 6 1/2” spiral 
bound article with photographs on the left side and a 
table of the days of the week on the right, as a calendar 
rather than a diary. It acknowledged the Baumgarten 
and Brooks Brothers cases, but decided that, in contrast 
to a diary which is “primarily intended to be used in 
connection with extensive notations,” the article at 
issue was intended only “for a notation of no more than 
a sentence or two.” Id. at 175, 574 F. Supp. at 1063. 

The trial court in this case relied heavily on these 
cases for its definition of diaries. These cases, however, 
involved classification of goods under tariff provisions 
different from those presented in this case. These prior 
cases therefore supply only limited guidance for this 
case. In Charles Scribner’s Sons, for instance, the court 
decided between classifying the articles as calendars or 
diaries. Neither party to this case asserts that the 
day planners should be classified as calendars. In 
Baumgarten, the court classified the articles at issue 
under the Tariff Act of 1930, which as then amended 
provided sparse guidance under Schedule 14 (“Papers 
and Books”): 

Blank books and slate books: 

Address books, diaries, and notebooks 

Other 

11a 

Similarly the court in Brooks Brothers decided its case 
with similarly sparse guidance from the predecessor to 
tariff provision 4820.10.20 in the Tariff Schedule of the 
United States (TSUS): 

Schedule 2. Wood and Paper; Printed Matter 

Part 4. Paper, Paperboard, and Products 
Thereof 

Subpart C. Paper and Paperboard Cut 
to Size or 

Shape; Articles of Paper and Paper- 
board 

Blank books, bound: 

256.56 Diaries, notebooks, and address 
books 

256.58 Other 

Neither of these prior incarnations of the tariff 
schedule contain the specificity found in the corre- 
sponding HTSUS headings. The more precise HTSUS 
classification scheme, which distinguishes diaries from 
articles similar to diaries, necessitates a more precise 
definition of the terms at issue. Stated another way, 
while the blunt dividing line used in Baumgarten 
and Brooks Brothers may have sufficed to distinguish 
diaries from other blank books, this court must draw 
the line distinguishing diaries from articles similar to 
diaries with a finer point. 

12a 

The Oxford English Dictionary, at 612 (1989), defines 
a diary as: “1. A daily record of events or transactions, 
a journal; specifically, a daily record of matters affect- 
ing the writer personally, or which come under his 
personal observation.” This definition largely comports 
with the definition cited in Baumgarten and with other 
dictionary definitions. The American Heritage Diction- 
ary of the English Language, at 516 (3d ed. 1992), for 
example, defines a diary as: “1. A daily record, espe- 
cially a personal record of events, experiences, and 
observations, a journal.” See also Webster’s New 
Twentieth Century Dictionary of the English Language 
at 504 (2d ed. 1961) (“1. a daily written record, espe- 
cially of the writer’s own experiences, thoughts, etc.”). 
These definitions reflect the two key aspects of a diary. 

A diary must allow its user to keep a record, 
especially, as the Court of International Trade recog- 
nized, “concerning events of importance.” Thus, a diary 
would include not only a factual record of the events 
themselves, but also a person’s observations, thoughts, 
or feelings about them. This court disagrees with the 
trial court, however, that the record may be composed 
of the broad range of writings embraced by the term 
“notations.” That term encompasses the use of only a 
word or even the briefest phrase—writings of a length 
insufficient to record events, observations, thoughts, or 
feelings. To constitute a record at all, then, the nota- 
tions must be relatively extensive. In the words of 
Charles Scribner’s Sons, the article must have space 
for “more than a sentence or two.” 574 F.Supp. 1058, 
6 CIT at 175. 

In addition, a diary must actually be a “record” in the 
sense that it “recalls or relates past events.” Webster’s 

13a 

Ninth New Collegiate Dictionary at 984 (1990) 
(emphasis added). A diarist records events, observa- 
tions, feelings, or thoughts after they happen. Thus, a 
diary is retrospective, not prospective. A diary is not a 
place to jot down the date and time of a distant dentist 
appointment, regardless of whether that appointment 
would constitute an “event of importance.” 

Applying the above principles, the articles at issue 
fall into the category of articles similar to diaries 
(encompassed by “other” in subheading 4820.10.40) 
rather than as diaries under subheading 4820.10.20. As 
an initial matter, neither the trial court decision nor the 
government’s brief identifies which part of the day 
planners they consider the diary portion. This court 
assumes that the court below focused on the “daily 
planner” section, which all five-day planner models 
have in common.2 The daily planner section includes a 
series of pages allocated to days and numbered with the 
hours of the day along the left hand side of the page. 
Two blank lines (four shorter lines in the largest model) 
extend to the right of each hour. Suffice it to say that 
the space provided by these blank lines would not 
permit a diarist to record relatively extensive notations 
about events, observations, feelings, or thoughts. This 
limited space permits instead only the briefest nota- 
tions. Space for only a word or phrase disqualifies 
these articles as diaries. 

2 To the extent the government relies on any other portion of 
the day planners not discussed herein, this court has considered all 
sections and has determined that none qualify the article as a 
diary. 

14a 

Moreover, an examination of the articles themselves 
reveals that the space provided was not intended for 
recording past events. The top of each page carries the 
caption “Daily Planner” and the word “Appointments” 
appears above the blank lines. These pages facilitate 
advance planning and scheduling. As noted above, 
however, a diary is not for planning. Instead, a diary 
receives a retrospective record of events, observations, 
thoughts, or feelings about them. Mead markets its 
entire article as a “Day Planner,” further buttressing 
the distinction between this prospective scheduling 
article and a diary. While the importer’s marketing of 
the goods will not dictate the classification, such evi- 
dence is relevant to the determination and, in this case, 
weighs against classifying the articles as diaries. 
Indeed, the earlier trade cases—Baumgarten (desk- 
diaries); Brooks Brothers (Economist Diary); Charles 
Scribner’s Sons (Engagement Calendar)—turned at 
least in part on the fact that the importers themselves 
regarded their articles either as diaries or as calendars. 
See, e.g., Brooks Brothers, 68 Cust. Ct. at 98 (“[T]he 
Economist Diary is . . . by its own description a 
‘diary’ ”). 

B. Bound 

Reasoning that the tariff provisions at issue cover a 
“wide variety of book and non-book articles,” the trial 
court eschewed the meaning of “bound” as used in the 
trade of book manufacturing in favor of the purported 
common meaning of the term. While true that heading 
4820 covers book and non-book articles, the term 
“bound” does not appear in that heading. Rather, the 
term appears for the first time in subheading 4820.10.20 
where it modifies “Diaries, notebooks and address 

15a 

books.” These three items, the parties agree, are all 
books. Thus, the trial court’s premise that the 
provision at issue covers non-book articles falls, as does 
its conclusion. Because the subheading uses the term 
bound in connection with types of books, this court 
looks to the common meaning of that term in that 
context. 

The Dictionary of Publishing, at 43-44 (1982), defines 
the term “bound book” as: “Books that have been cased 
in, usually referring to books that have been sewn, 
glued, or stapled into permanent bindings.” Webster’s 
Ninth New Collegiate Dictionary defines “bound” as “4. 
of a book: secured to the covers by cords, tapes, or 
glue.” All of the binding methods described in these 
definitions are permanent bindings. Thus, this court 
concludes that the term “bound,” when used with re- 
ference to books as in subheading 4820.10.20, means 
permanently secured or fastened. In addition, affi- 
davits from bookbinding and stationery goods experts 
in the record confirmed this meaning of the term 
“bound” in its proper context. 

The Court of International Trade’s definition of 
“bound,” in contrast, essentially renders that limitation 
superfluous. A “bound diary” contemplates the exis- 
tence of an “unbound diary.” But if “bound” means 
fastened regardless of the permanency, what is an 
“unbound diary”? At oral argument, the government 
argued that a stack of loose-leaf pages could constitute 
an unbound diary. While such a stack would certainly 
be unbound, this court seriously questions whether it 
would qualify as a diary. The definition adopted in this 
opinion, however, leaves some meaning to the class 
of goods known as unbound diaries, namely, those not 

16a 

permanently fastened. The day planners at issue, 
contained in ringed loose-leaf binders, fall squarely 
within that class of goods. 

IV. 

For the independent reasons that the subject articles 
are neither “diaries” nor “bound,” this court reverses 
the trial court’s classification of the goods. The goods 
are properly classified under the “other” subheading of 
4820.10.40. 

COSTS 

Each party shall bear its own costs. 

REVERSED. 

17a 

APPENDIX B 

UNITED STATES COURT OF APPEALS 
FOR THE FEDERAL CIRCUIT 

O R D E R 

A petition for rehearing en banc having been filed by 
the APPELLEE, and a response thereto having been 
invited by the court and filed by the APPELLANT, and 
the matter having first been referred as a petition for 
rehearing to the panel that heard the appeal, and 
thereafter the petition for rehearing en banc and 
response having been referred to the circuit judges who 
are in regular active service, 

UPON CONSIDERATION THEREOF, it is 

ORDERED that the petition for rehearing be, and the 
same hereby is, DENIED and it is further 

ORDERED that the petition for rehearing en banc be, 
and the same hereby is, DENIED. 

The mandate of the court will issue on November 8, 
1999. 

18a 

FOR THE COURT, 

/s/ JAN HORBALY (AV) 

JAN HORBALY 
Clerk 

Dated: November 1, 1999 

cc: Sidney H. Kuflik 

Amy M. Rubin 

Terence P. Stewart 

MEAD CORP V US, 98-1569 
(CIT - 95-12-01783) 

19a 

APPENDIX C 

UNITED STATES COURT OF 
INTERNATIONAL TRADE 

Slip. Op. 98-101 
Court No. 95-12-01783 

THE MEAD CORPORATION, PLAINTIFF 

v. 

THE UNITED STATES, DEFENDANT 

July 14, 1998 

OPINION AND ORDER 

WATSON, Senior Judge. 

This action involves the tariff classification of im- 
ported loose-leaf books containing calendars, room for 
daily notes, telephone numbers, addresses and note- 
pads. This sort of product originated in England and is 
probably best known under the trademark of Filofax.1 

1 Filofax, Inc., importer and U.S. distributor of the “Filofax” 
line of products, has filed an amicus curiae brief. It did so pri- 
marily to make the point, hereby acknowledged, that “Filofax” is a 
registered trademark, properly used only in connection with 
Filofax products. It is not a generic term for the type of products 
involved in this case. As for the classification issues involved here- 
in, Filofax is pursuing its own actions with respect to the classifi- 
cation of its products. 

20a 

The importations were classified as bound diaries 
under Subheading 4820.10.20 of the Harmonized Tariff 
Schedules of the United States (“HTSUS”). That pro- 
vision, in context, reads as follows: 

4820 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: 

4820.10 Registers, account books, notebooks, order 
books, receipt books, letter pads, memorandum 
pads, diaries and similar articles: 

CLASSIFIED: 

4820.10.20 Diaries, notebooks and address books, 
bound; memorandum pads, letter pads and similar 
articles . . . . . . . . . . . . . . 3.2% 

CLAIMED: 

4820.10.40 Other . . . . . . . . . . . Free 

Mead has moved for partial summary judgment with 
respect to two causes of action, first, that the im- 
portations are not “diaries” and, second, that the 
importations are not “bound.” A third cause of action, 
relating to two of the imported styles, in which the 
loose-leaf binder is not riveted to the jacket cover, are 

21a 

not included in plaintiff’s motion. The government’s 
crossmotion covers the entire action and seeks sum- 
mary judgment that all the importations are bound 
diaries as a matter of law and were properly classified 
as such. The parties agree that the resolution of this 
action depends on the determination of the meaning of 
the words “diary” and “bound” as used in the relevant 
subheading. 

Plaintiff’s first argument is that the importations 
are not diaries within the meaning of Subheading 
4820.10.20. The Court notes that, if this is so, they 
would not be classifiable as similar to diaries under that 
subheading even though the subheading ends with the 
phrase “and similar articles.” This is so because, unlike 
Subheading 4820.10, the phrase “and similar articles” in 
Subheading 4820.10.20 does not refer back to diaries. 
The semicolon in that subheading breaks it into 
separate units and only memorandum pads and note- 
pads are the subjects of the final phrase “and similar 
articles.” In other words, if the importations are 
similar to diaries, but not actually diaries, they would 
not fit into subheading 4820.10.20 and plaintiff’s claim 
would be correct. 

Both parties argue that their position is supported by 
prior case law. However, in the opinion of the Court, 
the case law supports the position of the government on 
the first issue. In other words, the importations are 
within the tariff understanding of the term “diaries.” 

In Fred Baumgarten v. United States, 49 Cust. Ct. 
275, Abstract No. 67150 (1962), the importation was 
described as follows: 

22a 

The imported article, as represented by plaintiff’s 
exhibit 1, is a plastic-covered book, approximately 4 
1/4 by 7 3/8 inches in dimensions. Its first few pages 
contain, successively, the date “1961,” the notation 
“Personal Memoranda,” calendars for the years 
1960, 1961, and 1962, and a few statistical tables. 
The following 20-odd pages contain spaces for 
addresses and telephone numbers, each page more 
or less set aside for each letter of the alphabet. The 
remaining portion of the book consists of ruled 
pages allocated to the days of the year and the hours 
of the day and each headed with calendars for the 
current and following months. A blank-lined page, 
inserted at the end of each month’s section, is 
captioned “Notes.” 

The court held that the distinguishing feature of a 
diary was “its suitability for the receipt of daily 
notations” and found that “[b]y 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.” It should be noted that the presence of pages 
for addresses and telephone numbers did not affect the 
court’s conclusion in that case. 

In Brooks Bros. v. United States, 68 Cust. Ct. 91, 
C.D. 4342 (1972) the court had before it an importation 
called the Economist Diary, a spiral bound book offered 
and sold as a diary with “more blank pages, used for 
recording events and appointments, than there are 
pages containing information.” The court found that 
the diary portion was the essential or indispensable 
part of the importation and was therefore controlling of 
its classification. 

23a 

In Charles Scribner’s Sons v. United States, 6 CIT 
168, 574 F. Supp. 1058 (1983) the court overturned the 
classification of a product as a diary under Item 256.56 
of the Tariff Schedules of the United States (“TSUS”) 
in favor of classification as a calendar under Item 
274.10. The article in question consisted of a book de- 
scribed as an engagement calendar for the year 1979. 
The book consisted of photographs, each photograph 
occupying one page and facing another page on which a 
calendar was devoted to the seven days of a week. The 
book covered fifty-three weeks in all. The court found 
that the space allocated to daily notation was “min- 
uscule, measuring approximately one-inch by 4 13/16 
inches, and was intended for a notation of no more than 
a sentence or two.” The court further found that the 
essential purpose of the book was to “convey high- 
quality Sierra Club photography in the form of a calen- 
dar.” 

The common thread in these cases is the under- 
standing that “diaries” are articles whose principle 
purpose is to allow a person to make daily notations 
concerning events of importance. Articles may be 
diaries even if they contain supplementary material of 
a different type, such as useful printed information or 
addresses and telephone numbers. It can therefore 
be fairly concluded that tariff language adopted with 
knowledge of these judicial precedents maintains the 
understanding inherent in those decisions. Central 
Products Co. v. United States, 20 CIT 862, 936 F. Supp. 
1002, 1006-7 (1996). 

Plaintiff also argues that the diary provision in the 
HTSUS differs from prior tariff provisions sufficiently 
to make cases decided under earlier tariff laws inappli- 

24a 

cable. Plaintiff points to the fact that the term “diary” 
in Item 256.56 of the TSUS was an eo nomine provision 
including all forms of a diary. Under the HTSUS, 
contends plaintiff, articles “similar” to a diary are 
“other” than diaries and have a separate provision in 
Subheading 4820.10.40. 

This line of reasoning implies that articles with 
special features other than those purely dedicated to 
daily notation may be similar to diaries, but not actually 
diaries. This argument would be persuasive if it 
appeared that the provision for “other” articles similar 
to diaries would be empty or meaningless unless 
articles such as these came within its ambit. But the 
government points out that there exists a category of 
merchandise more remote from “pure” diaries than the 
importations but still sufficiently close to be called 
“similar.” Thus, in HQ 955199 of January 24, 1994 
(defendant’s Exhibit P) the Customs Service issued 
binding classification rulings that a small diary-like 
book entitled “Special Occasion Book,” devoted to mak- 
ing notes for “recording the name, date, occasion and 
gift idea for special dates” and a book called “Car Care 
Planner” devoted to the entry of information related to 
the maintenance of a car were similar to diaries and 
therefor came within the scope of “other” articles under 
Subheading 4820.10.40. They were not actually diaries, 
reasoned the ruling, because their usefulness was 
limited to special situations. 

The rationale used in that ruling is persuasive and 
provides reassurance that the residual provision for 
“other” articles in Subheading 4820.10.40 need not be 
read as covering these importations out of concern that 
otherwise the subheading would cover nothing at all. 

25a 

As is often the case, the exhibits are potent evidence. 
Examination of them leads the Court to conclude that 
the importations are forms of diaries rather than 
articles similar to diaries. Their use for notational pur- 
poses is not confined to a limited phase of human life or 
to a narrow area of activity. They are designed for 
notations concerning the full range of daily experience. 
As such, they fall within the meaning of the term 
“diaries” notwithstanding the fact that they contain 
supplementary material. 

In the second stage of this dispute, the success of 
plaintiff’s claim depends on whether or not the diaries 
are “bound” within the meaning of the subheading in 
which they were classified. 

On this question the plaintiff argues that the meaning 
of “bound” ought to be derived from the permanent 
form of attachment demanded of books in Overton & 
Co. v. United States, 22 Treas. Dec. 437, T.D. 3237 
(1912). That was a decision of the Board of General 
Appraisers in which General Appraiser Israel F. 
Fischer (later to be Chief Justice of the United States 
Customs Court in its first years ) held that permanent 
binding was the distinction between a book and a 
booklet. In that decision it was held that small books 
for such purposes as the recording of weddings or the 
progress of a baby’s growth were books under para- 
graph 416 of the Tariff Act of 1909 rather than booklets 
under paragraph 412 because they were “firmly and 
permanently stitched and bound small books, such as 
are the product of the bookbinders art.” 

In that case “booklets” were understood to be “an 
article used for greeting or souvenir purposes, sold and 

26a 

dealt in by art dealers and stationers, and made up of 
several leaves or inserts flimsily fastened within a 
folder of paper or other material.” 

The Court is mindful of the salutary principle that a 
continuity of meaning should be maintained from one 
tariff act to another if Congress has not indicated 
otherwise. Hemscheidt Corp. v. United States, 72 F.3d 
868 (Fed. Cir. 1995). However, it cannot be said that the 
Overton decision spoke to the general meaning of the 
term “bound” as it might be used in a statute. It simply 
decided that the distinction between a book and booklet 
lay in the relative permanence of the binding. This is 
not the sort of judicial decision that fixes statutory 
terminology so as to allow the court to reason that the 
legislators must have later used “bound” in the sense of 
articles that are irremovably joined to one another. 

Nor can it be said that the later use of the term 
“bound” in the Tariff Schedules of the United States or 
the present HTSUS was so specifically linked to the 
field of book manufacture that specialized dictionary 
definitions of the term or bookbinding expertise ought 
to apply. The tariff provisions here under consideration 
cover a wide variety of book and non-book articles. 
Even those that are in book form are not the traditional 
books of the bookbinding trade. It follows that in these 
circumstances, the term “bound” should be given its 
common meaning rather than one associated with the 
trade of book manufacture. The common meaning of 
“bound” is fastened. The irrevocability of the fastening 
is not important so long as it goes beyond the transitory 
role of packaging. 

27a 

For the reasons given above, it is the opinion of the 
Court that the importations at issue are bound diaries 
within the meaning of Subheading 4820.10.20 of the 
HTSUS. Consequently, defendant’s motion for sum- 
mary judgment will be granted. 

ORDER 

This matter is before the court on plaintiff’s partial 
motion for summary judgment, and defendant’s cross- 
motion for summary judgment regarding the tariff 
classification of imported loose-leaf books. 

It is hereby ORDERED that defendant’s cross-mo- 
tion for summary judgment is granted and the action is 
hereby dismissed. 

28a 

APPENDIX D 

UNITED STATES CUSTOMS SERVICE 
DEPARTMENT OF THE TREASURY 

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). 

CLA-2 CO:R:C:T 955937 
October 21, 1994 

CATEGORY: Classification 
TARIFF NO.: 4820.10.2010 

District Director 
U.S. Customs Service 
4477 Woodson Road, Rm. 200 
St Louis, MO 63134-3716 

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 

29a 

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 class- 
ification 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 Head- 
quarters 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 en- 
tries currently at issue. 

A supplemental submission relating to the classifi- 
cation of this merchandise was sent to this office by Mr. 
Kuflik on September 22, 1994. 

30a 

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 general- 
ized 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 liqui- 
dated by Customs under subheading 4820.10.2010, 
HTSUSA, as bound diaries, dutiable at a rate of 4 per- 
cent 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 classi- 
fication 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. 

31a 

ISSUES: 

Whether the day planners are classifiable as diaries 
of subheading 4820.10.20, HTSUSA, or as articles simi- 
lar 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 Inter- 
pretation (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 mer- 
chandise is classifiable as bound “diaries” under sub- 
heading 4820.10.2010, HTSUSA, or as “similar to” dia- 
ries 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 con- 
sistently determined that articles similar in design 
and/or function to the instant merchandise are classi- 
fiable as diaries. The rationale for this determination 

32a 

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 Cus- 
toms rulings, it appears that the item is classifiable as a 
bound diary . . . .” In HRL 953172, this office deter- 
mined 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 

33a 

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 impor- 
tance to people generally or to members of a par- 
ticular 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 activi- 
ties. This is not the sole format for a diary. The word 

34a 

“diary” also connotes a more formal and comprehensive 
approach to record-keeping. 

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 market- 
place. 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 com- 
merce of the United States. 

35a 

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 ad- 
vertisement 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 . . . Recognize 
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 in- 
formation 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 

36a 

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 nota- 
tions 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 pur- 
poses. 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 

37a 

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 “Blank 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 pur- 
pose. 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 ap- 
plied to the merchandise at issue, yields a similar find- 
ing: 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 

38a 

be diaries in Baumgarten, arguably rendering the sub- 
ject merchandise even more suitable for “the receipt of 
daily notations.” 

As stated supra, the court in Baumgarten deter- 
mined 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 com- 
ponents 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 in- 
formation 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: Notwithstanding 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 . . . . The 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 

39a 

exhibits introduced at the trial, that are conceded to be 
‘diaries,’ also contain ‘informational material,’ . . . This 
additional material admittedly does not change their 
essential character as ‘diaries.” emphasis added 

The Brooks Bros. Court concluded that “The Econo- 
mist 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 informa- 
tion, 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), “The 
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 

40a 

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 classi- 
fiable as “tomatoes, whole or in the piece,” as “pre- 
paration for sauce,” or as “tomato sauce.” Counsel sub- 
mits 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 plan- 
ners’ essential character is no longer exclusively de- 
rived 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 toma- 
toes.” The court further noted that, “When too much of 
an optional ingredient or a combination of optional 

41a 

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: “The 
fact that the Economist Diary contained a significant 
quantity of printed material did not change its essential 
character . . . Regardless 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 . . . Without 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 com- 
ponents to warrant classification in subheading 
4820.10.2010, HTSUSA. Rather, we believe it is the 
Brooks Bros. analysis which is applicable in this in- 
stance: regardless of the presence of extraneous com- 
ponents, so long as the article is primarily a place for 
the recordation of events and appointments, it is 

42a 

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 signifi- 
cantly 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 ap- 
proximately 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 re- 
ceived 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 “be- 
cause 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 

43a 

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 pre- 
cedential 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 deter- 
mined to be diaries in those two cases bear a strong 
resemblance in both form and function to the mer- 
chandise currently under review. 

Based on the Mead planners’ suitability for the re- 
ceipt of daily notations, lexicographic sources, treat- 
ment 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 plan- 
ners are deemed to be “diaries” for tariff classifica 
tion purposes, and classifiable under subheading 
4820.10.2010, HTSUSA. 

44a 

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 plan- 
ners 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 plan- 
ners at issue are not “bound” for purposes of classifi- 
cation under subheading 4820.10.2010, HTSUSA, inas- 
much 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 sub- 
mits numerous other lexicographic definitions from 
both general and trade dictionaries which provide 
similar definitions of “bookbinding,” and thereby ar- 
rives at the conclusion that the Mead planners at issue 
are not bound in the sense contemplated by the book- 
binding 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 con- 
sidered 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. 

45a 

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 langu- 
age 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). 

46a 

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 in- 
tended 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, 

47a 

47130, 47132, 47134, 47136, 47138, 47140, 47142, 47144, 
47172, 47174, 47176, 47178 and 47180, are classifiable 
under subheading 4820.10.2010, HTSUSA, which pro- 
vides 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 Direc- 
tive, 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 Cus- 
toms 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 
Commercial Rulings