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HQ 088031


October 8, 1991

CLA-2 CO:R:C:F 088031 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9705.00.0090

Director, New York Seaport Area
6 World Trade Center
New York, NY 10048

RE: Decision on Application for Further Review of Protest No. 1001-9-004067, filed July 27, 1989, concerning the classification of a collection of jewelry that once belonged to the Duke and Duchess of Windsor

Dear Area Director:

This is a decision on a protest filed July 27, 1989 against your decision on the classification and liquidation of entry no. 0703808-1, made on January 20, 1989, and liquidated on July 14, 1989.

FACTS:

The merchandise was entered and classified under subheading 7116.20.1000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for articles of jewelry, dutiable at the rate of 6.5% ad valorem. Protestant claims that the classification under subheading 7116.20.1000, HTSUSA, is not the proper classification; instead, according to protestant, the merchandise should be classified as articles of historical interest under subheading 9705.00.0090, HTSUSA. If the items are classified as claimed by protestant, they will be entitled to duty-free entry.

The merchandise at issue includes various articles of jewelry which were formerly owned by the Duke and Duchess of Windsor. The sale prices of the individual pieces range from approximately $47,000.00 to approximately $200,000.00. Some of the pieces are marked with inscriptions and dates.

ISSUE:

Whether the subject articles of jewelry should be classified as jewelry under subheading 7116.20.1000, HTSUSA, or as a collection or collectors' pieces of historical interest under subheading 9705.00.0090, HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

The competing provisions in this case are:

(a) 7116.20.1000, HTSUSA, Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed): Of precious or semiprecious stones (natural, synthetic or reconstructed): articles of jewelry;

(b) 9705.00.0090, HTSUSA, Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest, Other.

In the instant ruling, the items at issue can be classified by reference to GRI 1. It is our determination that the merchandise is properly classifiable as collections or collector's pieces of historical interest under subheading 9705.00.0090, HTSUSA.

First, we note that if these items are classifiable as collectors' items of historical interest under chapter 97, HTSUSA, then they cannot be classified as articles of jewelry under chapter 71, HTSUSA. Note 3(o) to Chapter 71, HTSUSA, states as follows:

3. This chapter does not cover:

(o) Original sculptures or statuary (heading 9703), collectors' pieces (heading 9705) or antiques of an age exceeding one hundred years (heading 9706), other than natural or cultured pearls or precious or semiprecious stones.

Additionally, Note 4(a) to Chapter 97, HTSUSA, states that "Subject to notes 1 through 3 above, articles of this chapter are to be classified in this chapter and not in any other chapter of the tariff schedule."

Thus, the primary issue to be determined is whether these
items are classifiable in Chapter 97, HTSUSA. The Explanatory Notes (ENs), which constitute the official interpretation of the HTSUSA at the international level, state in EN 97.05, in pertinent part, as follows:

These articles are very often of little intrinsic value but derive their interest from their rarity, their grouping or their presentation. The heading includes:

(B) Collections and collectors' pieces of historical, ethnographic, paleontological or archaeological interest, for example:

(1) Articles being the material remains of human activity suitable for the activities of earlier generations, such as: mummies, sarcophagi, weapons, objects of worship, articles of apparel, articles which have belonged to famous persons.

The importer, in arguing for inclusion of the jewelry in Chapter 97, focuses on the phrase "articles which have belonged to famous persons." The importer discusses at length the fame and historical significance of the Duke and Duchess of Windsor and provides material to support this discussion. In addition, the importer describes the close relationship of the jewelry to the Duke and Duchess and touches upon the historical aspects of the jewelry, such as the inscriptions that appear on some of the items.

Articles that have "belonged to famous persons" is susceptible to a broad interpretation that would be impossible to administer. In attempting to define the scope of this provision, we have received no guidance from the relevant legislative history or the working draft and notes of the Customs Cooperation Council (CCC). We must, therefore, look to the Explanatory Notes to see if they shed any light on the scope of the provision.

In examining Explanatory Note 97.05 (B), the first thing we notice is that it reads more like a set of guidelines rather than as a strict, all inclusive or exclusive rule as to what constitutes an item of historical interest. The phrase "for example" which directly precedes "Articles being the material remains of human activity suitable for the study of earlier generations" indicates that the drafters did not intend that only such items qualify. The phrase "such as" which precedes the list including "articles which have belonged to famous persons" indicates that this list is merely a list of examples, which may or may not qualify for Chapter 97.

Thus, since there is no strict rule, items such as this must be examined on a case by case basis, considering all the factors involved. In this case, we have determined that there are many factors which favor inclusion of this jewelry in Chapter 97:

1. The jewelry belonged to famous people. The Duke and Duchess of Windsor were quite famous in the United States, England and around the world.

2. These individuals are not only famous, but are historically significant; their actions concerning abdication of the crown by the Duke and their involvement in the politics of the time was considered newsworthy, affected many lives and has had a long term effect on human affairs.

3. The items indicate a markedly increased value because of their historical significance. For example, the importer paid $117,000.00 for a pair of cufflinks that would normally sell for $800.00. He paid approximately $300,000.00 for a pair of earrings and necklace that together would have normally sold for approximately $20,000.00.

4. The jewelry was not just "owned" by the Duke and Duchess but was very closely associated with them. They were well known for their jewelry collection (articles have been published concerning this subject) and the Duke personally designed many of the pieces, some of which exhibit his personal taste. Jewelry design was a hobby of his.

5. Jewelry in general, and this jewelry in particular, is useful in the study of earlier generations. In the Encyclopedia Americana, International Edition, 1980 at pp. 49-59, an article on jewelry states that "Jewelry making is an art, almost as old as the history of man." The article goes on to discuss jewelry through the ages noting how many facts can be learned about the time period in which the jewelry is produced, such as the availability or non-availability of certain metals, the culture of the period, etc. In this instance, the Duke and Duchess are of an earlier generation and the jewelry is useful in studying them and their times. For example, in the Sotheby's Galleries publication "The Jewels of the Duchess of Windsor", Mr. Nicholas Rayner, one of the Sotheby experts in charge of the collection, states at page 2 that the Duchess "was among the first to wear yellow gold jewelry, which took the place of platinum after 1945. This soon became a popular fashion in France, partly because gold had been rationed and hence hoarded during the war years." In addition to the basic
properties of jewelry that lend itself to the study of history, we note that several of these pieces bear inscriptions containing dates and relating to historic events. Additionally, lot 120, a pair of cufflinks, features a portrait of Queen Alexandra and a portrait of King Edward VII.

6. Another factor to consider when examining the historical interest of an item or items is the opinion of experts likely to be knowledgeable in the area. According to the Curator of Costume at the National Museum of American History, Washington, D.C., this jewelry has a definite historical value and would be a welcome addition to any museum.

Our determination that this jewelry should be classified as items of historical interest is arrived at by the combination of all of the above factors. In other cases, additional factors may be relevant in determining classification under heading 9705. In other words, the foregoing is not an exhaustive list. This decision is based on the unique items that are the subject of this ruling and thus must be considered to be relevant only to the particular facts presented herein.

HOLDING:

The jewelry which belonged to the Duke and Duchess of Windsor is properly classifiable under subheading 9705.00.0090, HTSUSA, as Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest, other, and is entitled to duty-free entry.

The protest should be allowed in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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