CLA-2 RR:CR:GC 960986K
Area Port Director
U.S. Customs Service
198 W. Service Road
Champlain, New York 12919
RE: Internal Advice 2/98; Protest 0712-98-100125; Hard Rock Cafe; Collectors Articles
Dear Port Director:
This is in response to your memorandum of January 26, 1998, referring the request for internal advice, dated January 12, 1998, of AEI-Carr Customs Brokerage Services, on behalf of the Hard Rock Cafe, concerning a shipment of rock and roll memorabilia claimed to be free of duty as collectors’s pieces in subheading 9705.00.00, Harmonized Tariff Schedule of the United States (HTSUS). Since the initiation of the request for internal advice, the entries were liquidated and protest 0712-98-100125 was filed on July 24, 1998.
FACTS:
The shipment consists of approximately 130 pieces, including gold and platinum albums presented to bands, artists, and producers to commemorate sales milestones, clothing such as leather jackets and sneakers worn by entertainers, musical instruments and toys owned by various entertainers, record albums, and, photos, lobby cards, pictures, toys, and autographs, that have been owned or associated with many entertainers. Most of the pieces are identified as being owned by a specific entertainer but not all of the pieces listed in the shipment such as posters belonged to a specific entertainer. The pieces are used commercially for display purposes in restaurants.
The inquirer suggests that rock and roll musicians are of ethnographic or historical interest, and that the pieces owned by them or pieces concerning them such as photos and posters become rare pieces in their own right, qualify for classification, free of duty, as collectors’ pieces, in heading 9705.00.00, HTSUS. In the alternative, it is claimed that some of the pieces qualify as American goods returned, in subheading 9801.00.10, HTSUS.
ISSUE:
Whether the pieces described above that were owned by or concerned popular entertainers, automatically qualify as collections and collectors’ pieces of ethnographic or historical interest, classified in heading 9705.00.00, HTSUS.
LAW AND ANALYSIS:
Subheading 9801.00.10, HTSUS, provides for a free rate of duty for products of the United States when returned after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad. No documentary evidence was submitted to support a claim under subheading 9801.00.10, HTSUS, or that there was compliance with section 10.1 of the Customs Regulations (19 CFR 10.1).
Heading 9705.00.00, HTSUS, provides for the free entry of collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest. It is suggested that the pieces are of historical or ethnographic interest and since they were owned, in the most part, by famous entertainers, the pieces qualify under heading 9705.00.00, HTSUS. Our discussion is limited to the claims for ethnographic or historical interests.
The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS. The EN’s for heading 9705, state that “these articles are very often of little intrinsic value but derive their interest from their rarity, their grouping or their presentation.”
Rarity, grouping and presentation are guidelines. Value is not a controlling guideline for rarity but it may be considered to show rarity. The Compact Edition of the Oxford English Dictionary (1987) defines grouping as “the action of placing in groups, a manner in which things are grouped”, and defines presentation as “a display, show, exhibition”. The Random House Unabridged Dictionary (1993) also defines presentation as “an exhibition or performance, as of a play or film”. These guidelines indicate that the articles must be rare, placed in groups indicating more than one article, and consist of articles for exhibition and not for utilitarian use.
The EN’s for heading 9705, further state, in part, that the heading includes:
(B) Collections and collectors’ pieces of historical, ethnographic, palaeontological or
archaeological interest, for example:
(1) 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.
(2) Articles having a bearing on the study of the activities, manners, customs and characteristics of contemporary primitive peoples, for example, tools, weapons or objects of worship.
(3) Geological specimens for the study of fossils (extinct organisms which have left their remains or imprints in geological strata), whether animal or vegetable.
The guidelines of the EN’s indicate a narrow interpretation of coverage under heading 9705. The EN’s further indicate a narrow interpretation by stating the following;
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 or numismatic interest unless the goods themselves have subsequently attained that interest by reason of their age or rarity.
Most of the pieces listed in the subject shipping documents, such as the gold and platinum albums presented to bands, artists, producers, etc., to commemorate sales milestones fall within this exclusionary commercial category, as well as the manufactured musical instruments.
“Ethnography” is defined in Webster’s New World Dictionary, Second Edition, “ as the branch of anthropology that deals descriptively with specific cultures, esp., those of nonliterate peoples or groups.” In our view, the pieces described in the shipping documents do not fall within this definition or within the guidelines for ethnographic pieces as described above in sections (B) (1) and (2) of the EN’s.
The EN’s guidelines refer to “pieces of historical ... articles which have belonged to famous persons.” First of all, the pieces must be collections and collector’ pieces and not of a commercial character. The pieces as described may be grouped as a collection and may be exhibited, but the main purpose of the collection serves a commercial (utilitarian) purpose as decoration items in restaurants. Further, the pieces must have belonged to historical famous people. Neither heading 9705.00.00, HTSUS, or the EN’s thereto, include all classes of famous peoples such as entertainers, writers, athletes, attorneys, doctors, educators, etc., as historical famous persons. Rather, the coverage is limited to “historical ... famous persons”. Of course, any individual in these classes of people may rise to the level of “historical ... famous peoples”, but they do not automatically rise to such a level because they belong to a class of professional entertainers. Further, the inquirer has not demonstrated how each piece rises to the level of an “historical” rare piece or the authenticity of ownership.
The holding in Headquarters Ruling Letter 088031, dated October 8, 1991, that certain jewelry that belonged to the Duke and Duchess of Windsor qualified as rare pieces owned by “historical famous persons” is limited to that specific set of facts. There is no doubt that the Duke and Duchess of Windsor were historically famous persons in their own right and that the jewelry involved was rare. There is also a presumption that the jewelry was for collections and collector’s pieces and not for utilitarian purposes.
The inquirer noted that the Smithsonian Institute had a temporary display entitled “The Electric Guitar, Its Makers, and Its Players” featuring many of the guitars and performers represented in the shipment in question. However, the Smithsonian Institute, as a non-profit institution, is not confined to the narrow coverage of heading 9705.00.00, HTSUS. Subheading 9812.00.20, HTSUS, provides for the free entry under bond for articles imported for exhibition by any institution or society established for the encouragement of agriculture, arts, education or science, or for such exhibition by any State or for a municipal corporation. The U.S. notes applicable for this provision excludes articles imported for sale or for purposes other than exhibition and it applies only to non-profit institutions. If the articles are sold or used contrary to the terms of the provision within 5 years after entry, lawful duties are due. Although the terms for free entry under subheading 9812.00.20, HTSUS, may appear more restrictive than for articles entered under heading 9705.00.00, HTSUS, there is a broad coverage of articles under subheading 9812.00.20, HTSUS, and the provision is not subject to the narrow EN’s guidelines for heading 9705.
See also, Headquarters Ruling Letter 961279, dated November 5, 1998, concerning the classification of a collection of automobiles.
HOLDING:
The various pieces described above, that were owned by or concern popular entertainers, are not classified as collections and collectors’ pieces that are of ethnographic or historical interest, covered by subheading 9705.00.00, HTSUS.
A review of the protest documents reveals that no additional information was provided. Accordingly, the protest should be denied in accordance with this internal advice decision.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto.
Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel, and to the general public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division