CLA-2OT:RR:CTF:TCM: H213716 ERB
Mr. John M. Peterson
Neville Peterson LLP
One Exchange Plaza
55 Broadway, Suite 2602
New York, NY 10006
RE: Modification of NY N198401; Tariff classification of certain collectors’ pieces; ice hockey sweaters
Dear Mr. Peterson:
U.S. Customs and Border Protection (CBP) issued to you, on behalf of your client, Classic Auctions Inc. (Classic Auctions), New York Ruling Letter (NY) N198401, dated January 27, 2012. NY N198401 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States, (HTSUS) of three ice hockey sweaters or jerseys. We have since reviewed NY N198401 and find it to be in error with respect to the classification of the Jacques Plante circa 1957 Montreal Canadiens Wool Sweater (Item #1) and the circa 1926 Detroit Cougars #7 wool sweater (Item #3), which are described in detail herein.
Pursuant to Section 615(c), of the Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by Section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), this advises interested parties that CBP is modifying a ruling letter concerning the classification of the Jacques Plante circa 1957 Montreal Canadiens wool sweater (Item #1) and the circa 1926 Detroit Cougars #7 wool sweater (Item #3), under the HTSUS. Similarly, CBP is revoking any treatment previously accorded by it to substantially identical transactions. Notice of the proposed revocation was published on April 22, 2015, in Volume 49, Number 16, of the Customs Bulletin. One comment was received in support of the proposed notice.
FACTS:
NY N198401 states the following, in relevant part:
Item 1 is described as “Jacques Plante circa 1957 Montreal Canadiens Wool Sweater.” Plante played for the Montreal Canadiens from 1953 to 1963 during which time his team won the Stanley Cup six times, including five consecutive wins. Plante was a Canadian professional ice hockey goaltender. His career spanned from 1947 through 1975 playing for teams like the Montreal Canadiens, the St. Louis Blues, the Toronto Maple Leafs, and the Boston Bruins, with a short stint as coach and general manager for the Quebec Nordiques from 1973 through 1974. Plante was included into the Hockey Hall of Fame in 1978, and was chosen as the goaltender of the Canadiens’ all-time “Dream Team” in 1985. Plante was awarded the Vezina Trophy. The Canadiens retired Plante’s number 1 jersey in 1995.
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Item 3 is described as the “1926 Detroit Cougars #7 Wool Sweater.” The Detroit Cougars wool sweater was owned by Erik Brolin, an original member of the team which made its NHL debut in the fall of 1926.
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If item #1, the Jacques Plante circa 1957 Montreal Canadiens Wool Sweater and item #3, the 1926 Detroit Cougars #7 Wool Sweater, are in chief weight of wool and are constructed from fabric having a stich count of 9 or fewer stiches per 2 centimeters measured in the direction the stiches were formed, the applicable subheading will be 6110.11.0015, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of wool or fine animal hair: of wool: Sweaters: Men’s.”
If item #1, the Jacques Plante circa 1957 Montreal Canadiens Wool Sweater and item #3, the 1926 Detroit Cougars #7 Wool Sweater, are in chief weight of wool and are constructed from fabric having a stich count of more than 9 stiches per 2 centimeters measured in the direction the stiches were formed, the applicable subheading will be 6110.11.0015, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of wool or fine animal hair: of wool: Other: Men’s and boys.”
NY N198401 also classified another item, described as Item #2, “Ken Morrow’s 1980 U.S.A. Olympic Hockey Team Game Worn Jersey.” Morrow was an American professional ice hockey defenseman and he played for the 1980 U.S.A Olympic hockey team, though fame is associated with Morrow and the 1980 Team U.S.A. because of the “Miracle on Ice.” The “Miracle on Ice” is the name in popular culture for the stunning medal-round game where the American team, made up of amateurs and collegiate players, defeated the Soviet Union national team, which had won the gold medal in six of the seven preceding Olympic games, with a final score of 4-3. Team U.S.A. then went on to take the gold medal by winning its last match over Finland. The Soviets settled for a silver medal by beating Sweden in its final game. CBP classified this item in heading 9705.00.0070, HTSUSA, as a collectors’ piece. The classification of this item is not the subject of this revocation, and remains intact.
On February 24th and March 12th, 2015 you provided this office with further information which stated that the single Jacques Plante sweater at issue was presented to a journalist after the 1957 NHL Stanley Cup Finals and remained in the possession of that journalist for nearly 50 years, until Classic Auctions obtained it. You further stated that the Detroit Cougars sweater is 88 years old, and is an original sweater from the inaugural season of the Cougars in Detroit. It remained in the family of Erik Brolin, a player on that team, until Classic Auctions obtained it. You stated that both sweaters are originals and are not replicas, and will be sold with a certification of authenticity.
Classic Auctions was established in 1994, and its business focuses exclusively on auctioning ice hockey memorabilia. It offers a variety of items, including game-worn, used, or player-owned apparel, equipment, posters, and autographed items. Oftentimes, the items are obtained directly from the hockey players and their families. These consignors will certify as to the provenance of the products and certification of authenticity accompany most of the high-end collectibles Classic Auctions sells. Additional verifications, authentications, and appraisals are conducted in-house. As an auction house, the reputation of Classic Auctions depends on its ability to properly and accurately authenticate the goods it sells, and the information it provides to the public. Classic Auctions sells items of varying degrees of value, its highest being the $1.275 million sale of Paul Henderson’s 1972 Team Canada jersey.
ISSUE:
Whether the subject Jacques Plante circa 1957 Montreal Canadiens wool sweater and Erik Brolin circa 1926 Detroit Cougars wool sweater are sweaters of heading 6110, HTSUS or whether they are collectors’ pieces of heading 9705, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted:
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9705 Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological, paleontological, ethnographic or numismatic interest:
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg 35127 (August 23, 1989).
The EN 97.05, HTSUS, states, in pertinent part, the following:
These articles are very often of little intrinsic value but derive their interest from their rarity, their grouping or their presentation. The heading includes:
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(B) Collections and collectors’ pieces of historical, ethnographic, paleontological or archaeological interest, for example:
Articles being the material remains of human activity suitable for the study of the activities of earlier generations, such as: mummies, sarcophagi, weapons, objects of worship, articles of apparel, articles which have belonged to famous persons.
There exists no strict standard or enumerated criteria for articles which are classified in heading 9705, HTSUS. The word “historic” is not defined by the tariff, nor by the ENs, and the dictionary definition is quite broad. The Oxford English Dictionary states it is, “A historical work or subject; a history. Now rare”, and “relating to history; concerned with past events”. “historic, n. and adj.” OED Online. Oxford University Press, December 2014. Web. 23 February 2015.
In light of this, we turn to the ENs to inform and shape our understanding of the scope of the heading, but with the caveat that the ENs are used for guidance only in interpretation of the HTSUS. The ENs explain the scope of headings, often by means of exemplars, of which these examples are not necessarily all inclusive or all restrictive. The ENs should not restrict or expand the scope of headings, rather, they should describe and elaborate on the nature of goods falling within those headings, as well as the nature of goods falling outside of those headings. Thus, items must be examined on a case-by-case basis, considering all the relevant factors involved. See HQ 088031, dated October 8, 1991 (classifying jewelry belonging to the Duke and Duchess of Windsor in heading 9705, HTSUS).
Pursuant to the ENs, articles of “historical interest” may include items that by virtue of their rarity, age, connection to a specific historical event, or era, or point in time, may be classified in heading 9705, HTSUS, so long as they are the remains of human activity suitable for the study of earlier generations. See HQ W968392, dated February 9, 2007 (classifying a stone ushabti, described as being a stone “Ushabti of Neferhotep” in heading 9705, HTSUS). By way of example, the ENs state that this could include mummies, sarcophagi, weapons, objects of worship, articles of apparel, articles which have belonged to famous persons. See EN 97.05(B)(1). But in using the term, “such as,” preceding the list in the ENs, it is obvious that an object need not be all of those exemplars at once. Rather, these are individual examples. Hence, while “articles belonging to a famous person” might present difficulty administratively, nothing in the list mandates that an article must have a nexus to a historical time and have belonged to a famous person. It is simply an example along with others of what might constitute “articles…suitable for study.” See HQ 088031, dated October 8, 1991 (“Articles that have “belonged to famous persons” is susceptible to a broad interpretation that would be impossible to administer” and thus should be judged on a case-by-case basis, considering all relevant factors). The commenter agreed with the above analysis.
Jacques Plante circa 1957 Montreal Canadiens Wool Sweater
Jacques Plante was a Canadian professional ice hockey goaltender. His prolific career lasted from 1947 to 1975 and he is considered one of the most important innovators in the sport, having created and popularized the wearing of face masks by goaltenders, including the forerunner of today’s mask/helmet combination. He played for the Montreal Canadiens (in French, Les Habitants or “Habs”) from 1953 to 1963 and it was during his tenure the team won the Stanley Cup, the championship trophy awarded annually to the National Hockey League (NHL) playoff winner, six times, including five consecutive wins. After leaving the Habs, Plante played for the St. Louis Blues, the Toronto Maple Leafs and the Boston Bruins. He coached and was the general manager for the Quebec Nordiques from 1973-74. He then returned to the game as the goaltender for the Edmonton Oilers where he ended his professional athletic career in the 1974-75 season. Plante was inducted into the Hockey Hall of Fame in 1978. He was named to the All-Star Game every year from 1956 to 1960, and 1962, 1969, and 1970. He was named to the First All-Star Team in 1956, 1959, and 1962. He won the Hart Memorial Trophy in 1962 (for player judged most valuable to his team), and the Vezina Trophy (for goaltender judged to be the best at his position) every year from 1956 to 1960, and 1962 and 1969. His jersey, #1, was retired by the Habs in 1995. In short, he is universally considered one of the best goalies of all time.
The last of the exemplars in the EN 97.05, articles “which have belonged to famous persons” is relevant here. These articles may not in of themselves be noteworthy, in fact they may be quite mundane items, but they are still classified in heading 9705, HTSUS, based on the fame or infamy of the owner. See HQ 960518, dated May 30, 1997 (classifying various household goods of the Duke and Duchess of Windsor). Given the fame of Jacques Plante, his historically significant actions and contributions to the sport of ice hockey, his prolific career, and myriad awards and trophies presented to him, an article of memorabilia that belonged to him, and which was obtained and authenticated by Classic Auctions, such as the instant sweater, is considered a collectors’ piece for tariff classification purposes. The sweater is properly classified in heading 9705, HTSUS.
Eric Brolin circa 1926 Detroit Cougars #7 Wool Sweater
Ice hockey jerseys are mass-produced. Even special commemorative jerseys are manufactured quite often. Goods produced as a commercial undertaking to commemorate, celebrate, illustrate, or depict an event or any other matter, whether or not production is limited in quantity or circulation, do not fall in this heading as collections or collectors’ pieces of historical interest unless the goods themselves have subsequently attained that interest by reason of their age or rarity. See HQ H021886, dated August 6, 2008 (classifying a “Maison Tropicale,” a structure of sheet steel and aluminum designed by the French architect Jean Prouve in 1949 and produced in 1951; “Maison Tropical [sic] does not derive its value or historical interest from its limited production nor is it identified with a particular historical event.”); and see HQ 089226, dated July 29, 1991 (where a one-of-a-kind gold watch, valued at $4,975,000.00 did not quality it as an article of “historical interest” because it was not connected to a historic time nor a famous person); HQ 961297, dated November 5, 1998 (classifying uniquely designed cars, “Without evidence that each car had been owned by a famous person and/or involved in an historically significant event…they also did not meet the description of an “historical event” under the tariff.”).
The NHL was organized in 1917 in Montreal, Quebec. It started with four teams based in Canada and through a series of expansions, contractions, and relocations is now composed of thirty active franchises in the United States and Canada. In 1926 a group of investors bought the roster of the Western Hockey League’s Victoria Cougars, and relocated them to Detroit as the Detroit Cougars. The team’s inaugural season was 1926-1927, and they played at the Border Cities Arena in Windsor, Ontario, because the arena in Detroit wasn’t yet completed. The team was purchased by grain merchant James E. Norris in 1932 and he renamed the team the Detroit Red Wings, which remains its name today. The team had a rocky start, finishing at the bottom of the American Division as well as the league, and failing to make the playoffs in their inaugural year. But since then, the Red Wings have won the most Stanley Cup championships (11) of any NHL franchise based in the United States. It is one of the most popular franchises in the NHL, and fans and commentators refer to Detroit and its surrounding areas as “Hockeytown”, which has been a registered trademark owned by the franchise since 1996.
The Cougars changed their sweater style and design each of their first four seasons, until they became the Red Wings. Introduced in 1932, the Red Wings sweater has not changed since then, remaining the same for over 80 years. Original sweaters from those first four years of the franchise, when the team played as the Cougars, are very rare.
Erik Brolin was not a famous hockey player. He was the third-string goalie for the inaugural season. But the creation of the NHL was a historical occurrence, as was the creation of one of the NHL’s most successful franchises. Thus, original, authentic, verifiable artifacts associated with this particular historical time, the inaugural season of the Detroit Cougars, and especially articles of apparel, which are mentioned specifically as an exemplar in the ENs 97.05(B)(1), may be considered a collectors’ piece, of heading 9705, HTSUS.
There exist no strict guidelines or requirements for authentication of goods classified under heading 9705, HTSUS, because articles classified therein are done so on a case-by-case basis and considering all relevant factors. Regarding the subject merchandise, counsel for Classic Auctions states that the two items at issue have been authenticated as originals, not replicas, are of the vintage they purport to be, and are of the correct provenance. The Port may verify this statement from counsel before liquidation. To do so, the Port may request attestations, appraisals, and certifications of authenticity or other documents that Classic Auctions maintains in the ordinary course of doing business with sports memorabilia.
HOLDING
By application of GRI 1, and subject to verification by the Port Director as described above, the subject Jacques Plante circa 1957 Montreal Canadiens wool sweater (Item #1) and the 1926 Detroit Cougars #7 wool sweater (Item #3), may be classified in heading 9705, HTSUS. They are specifically provided for under subheading 9705.00.00, HTSUS, which provides for, “Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological, paleontological, ethnographic or numismatic interest.” The column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov
EFFECT ON OTHER RULINGS
NY N198401, dated January 27, 2012, is hereby MODIFIED, as regards the Jacques Plante circa 1957 Montreal Canadiens wool sweater (Item #1) and the 1926 Detroit Cougars #7 wool sweater (Item #3).
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division