CLA-2 RR:CR:GC 962234K
Port Director
U.S. Customs Service
6 World Trade Center, Room 761
New York, NY 10048-0945
RE: Protest 1001-98-102162; 1936 Bugatti 57G Tank/Race Car.
Dear Port Director:
The following is our response to the referral by your office, dated September 18, 1998, of the request for further review of the above-referenced protest.
FACTS:
The consumption entry covering the imported merchandise was reported as liquidated on April 3, 1998, under the provision for other used motor cars and motor vehicles principally designed for the transport of persons, including racing cars, in subheading 8703.23.0090, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the general rate of 2.5% ad valorem. A timely protest under 19 U.S.C. 1514 was received on June 30, 1998. The protestant requested reliquidation of the entry under the provision for collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest in subheading 9705.00.00, HTSUS, with a general free rate of duty. In a supplemental submission dated April 15, 1999, the protestant also believed that the vehicle qualifies for free entry under subheading 9812.00.20, HTSUS. In preparing this ruling, consideration was also given to arguments presented by protestant’s counsel at a meeting on May 25, 1999.
The 1936 Bugatti T57 tank/race car was designed by Ettoré Bugatti and is one of three built by the Bugatti automobile factory, at Molsheim, France, that is still in existence. A copy of the original title shows that it was registered on June 3, 1939, in the name of Ettoré Bugatti living in Alsace, France. The race car was the winner of the 24 hours of Le Mans Race in 1937, the French Grand Prix at Montlhery in 1936, and both the Marine Grand Prix and Comings Grand Prix. The race car has not been registered for road use since winning the 1937 Le Mans Race and was stored in a museum after its victories in the world famous car races. During the German occupation of France, the car was ordered by the French Ministry of Air Defense to be moved to Bordeaux. A certificate of appraisal dated December 8, 1997, describes the car as containing the original body, interior, dashboard and instruments, wheels, and paint as applied by the Bugatti factory, and that the engine is in “fine running order”. The appraiser also indicated that it is the “only true sports racing car in the Bugatti model production”.
It is stated that the back cover description of the book The Amazing Bugatti’s, published in 1979, reads as follows:
The work of the Bugatti family--three generations of craftsman, artists and designers—is as diverse as it is original. But the furniture, silver, paintings, sculpture, and thoroughbred cars and coachwork produced by these remarkable individuals all embody the common themes of love of natural form, high principles, truth to materials and originality of thought. This book, published to coincide with the first full-scale exhibition devoted to the Bugattis in Great Britain, not only illustrates and describes their lives and work, but also provides a fascinating insight into the changing relationship between art and everyday objects.
It is stated that over 200 books have been written about the fame of the Bugatti family. Documentation has been submitted to show the establishment of worldwide clubs formed in the Bugatti family name concerning an interest in automobiles.
It is also stated that the “fame of the Bugattis as historical figures has been extended to philately. For example, Monaco issued a stamp bearing the likeness of Ettore Bugatti, in or about 1912, in 1981. Another stamp featuring the likeness of Ettore Bugatti and a T37 Bugatti automobile was issued by the Central African Republic. Numerous other stamps featuring a vast array of Bugatti automobiles have been issued by France, Laos, S. Tome Principle, Burkino Fasso, Republic of Liberia, Grenada, Nicaragua, St. Lucia and Grenadines of St. Vincent.”
The protestant is a non-profit foundation and the race car is used in public exhibitions.
ISSUE:
Whether the Bugatti 57G Tank/Race Car described above is classifiable as a collectors’ piece of historical interest, in heading 9705.00.00, HTSUS.
LAW AND ANALYSIS:
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.
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, states 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. (Emphasis added.)
(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.
Thus, heading 9705.00.00, HTSUS, provides for collectors’ pieces of historical interest and the guidelines of the EN’s indicated that articles which have belonged to famous persons is an element in considering whether the collectors’ piece is of historical interest. In Headquarters Ruling Letter HRL 961279, dated November 5, 1998, we noted that the guidelines of the EN’s indicate a narrow interpretation of coverage under heading 9705.00.00 and that not all collectors’ pieces are covered by heading 9705.00.00. HRL 961279 concerned a rare 1929 Bentley and a rare 1936 Mercedes-Benz no longer used to convey passengers and intended to be added to a collection (of a Trust for profit), and for exhibition. However, although they could be considered as “collectors’ pieces”, there was no claim of a specific incident or occurrence involving these automobiles in a significant historical event and there was no specific claim that these automobiles belonged to famous (historical) persons. HRL 961279 was consistent with the Customs position in New York Ruling Letter 815818, dated December 7, 1995.
We are satisfied that the 1936 Bugatti 57G Tank/Race Car subject to this protest, was owned by a famous person involved in significant historical incidents and qualifies for classification in heading 9705.00.00, HTSUS. Classification under heading 9705.00.00, HTSUS, should be decided on a case by case basis.
You noted that the 1936 Bugatti 57G Tank/Race Car was imported by a non-profit foundation for public exhibition. 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, are more restrictive than for articles entered under subheading 9705.00.00, HTSUS, there is a broad coverage of articles under heading 9812.00.20, HTSUS, and the provision is not subject to the narrow EN’s guidelines for heading 9705.00.00, HTSUS.
We suggest, since all of the automobiles or racing cars designed and built by the Bugatti family may not qualify under heading 9705.00.00, HTSUS, that the importer should consider future importations under the applicability of subheading 9812.00.20, HTSUS.
HOLDING:
The 1936 Bugatti 57G Tank/Race Car described above, owned by a famous person and involved in historical incidents, is classified in heading 9705.00.00, HTSIS.
You are directed to allow the protest in full.
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.gov, by means of the Freedom of Information Act and other public access channels.
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Sincerely,
John Durant, Director
Commercial Rulings Division