CLA-2 CO:R:C:F 088031 STB
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?
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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
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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.
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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
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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
Commercial Rulings Division