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HQ 952512

December 22, 1992

CLA-2 CO:R:C:F 952512 LPF


TARIFF NO.: 9601.90.80

Mr. Guy Jazynka
5535 Nebraska Avenue, NW
Washington, D.C. 20015

RE: Ostrich egg shells in 9601, HTSUSA; Worked ivory, bone and other animal carving material, and articles of these materials; Not 9703 original sculptures and statuary; Not 9705 collections and collectors' pieces of zoological, botanical, mineralogical interest

Dear Mr. Jazynka:

This in response to your inquiry requesting the proper classification of decor ostrich egg shells under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted photographs of the article with your request for a binding ruling.


The decor ostrich egg shells, imported from South Africa, are approximately 6 inches in height and 4-1/2 inches in width. You explained, telephonically, that the merchandise is hollowed, or emptied out, sterilized, and polished or waxed before entering the U.S. You added that the merchandise does not include a base at the time of importation.


Whether the ostrich egg shells are classifiable in heading 9703 as original sculpture and statuary, in heading 9601 as worked ivory, bone, and other animal carving material, and articles of these materials, or in heading 9705 as collections and collectors' pieces of zoological, botanical, mineralogical interest.


The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or
chapter notes. 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 HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Heading 9703 provides for original sculptures and statuary, in any material. The EN's to 9703 indicate that the heading includes:

...original sculptures and statuary, ancient or modern. They may be in any material (stone, reconstituted stone, terra-cotta, wood, ivory, metal, wax, etc.), in the round, in relief or in intaglio (statues, busts, figurines, groups, representations of animals, etc., including reliefs for architectural purposes).

These works may be produced by either of two processes. In the first, the artist carves the work direct from hard materials. In the second, he models soft materials into figures;....

The merchandise is not classifiable within this heading for several reasons. First, it is not produced by either of the processes indicated above. In addition, the merchandise is ornamental in nature and is of a commercial character. In this regard, Note 3 to Chapter 97, HTSUSA, Works of Art, Collectors' Pieces and Antiques, states that, "heading 9703 does not apply to mass-produced reproductions or works of conventional craftsmanship of a commercial character." EN (a) to 9703 states that the heading excludes ornamental sculptures of a commercial character.

Prior case law and Customs rulings also indicate that the merchandise is not classifiable within heading 9703. An article must meet various requirements in order to be classified within Chapter 97 as a "work of art." In a decision interpreting this term, the United States Customs Court held that an article was classifiable in item 765.15, Tariff Schedules of the United States (TSUS), as original sculptures or statuary, if it was of the "rare and special genius usually attributed to works of the free fine arts." See Robert Siebert v. United States, 65 Cust. Ct. 380, 384, C.D. 4108 (1970); H.H. Elder and Forest Lawn v. United States, 64 Cust. Ct. 182, 184, C.D. 3979 (1970). Customs, in light of this judicial precedent, has determined that an article is classifiable under the provision for "fine arts" if it possesses originality of conception, execution and design. It has also been Customs position that the interpretation of the TSUS provision concerning "original sculptures" is equally applicable to the successor provision in Chapter 97, HTSUSA. See Headquarters Ruling Letters (HRL's) 063320, issued September 27, 1979 and 086227, issued April 18, 1990.

Customs also has maintained that a Chapter 97 work of art is a work of the free fine arts, rather than the decorative or industrial arts. The phrase "industrial or decorative arts" includes work performed by potters, glassmakers, goldsmiths, weavers, woodworkers, jewelers, and other artisans and craftsmen. The Customs Court has stated that although works by such professions are considered both artistic and beautiful, "it can hardly be seriously contended that it was the legislative purposed to include such things, beautiful and artistic though they may be, in a provision which, as shown by its history and the enumeration therein contained, was intended to favor that particular kind of art of which painting and sculpture are the types." See United States v. Olivotti & Co., T.D. 36309 (Ct. Cust. App. 1916); HRL 063320, supra. Court decisions and Customs rulings have indicated that various factors tend to show whether articles are works of the "free fine arts," including, display of the articles at art exhibitions and in art galleries, the status of the creator of the work, i.e., whether he/she is a known, professional artist, and the value of the article. For these reasons, the ostrich egg shells are not classifiable within heading 9703.

Heading 9705 provides for collections and collectors' pieces of zoological, botanical and mineralogical interest. The EN's to 9705 indicate that:

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

(A) Collections and collectors' pieces of zoological, botanical, mineralogical or anatomical interest, such as:...

(2) Blown or sucked eggs; insects in boxes, frames, etc. (other than mounted articles constituting imitation jewellery or trinkets); empty shells, other than those of a kind suitable for industrial use.

We note that the articles are not blown or sucked eggs. Moreover, because the merchandise does not appear to create an interest due to its rarity or presentation, ostensibly as a collectors' piece, it is not classifiable within heading 9705.

Heading 9601, HTSUSA, provides for worked ivory, bone, and other animal carving material, and articles of these materials. The EN's to 9601 state that:

[t]his heading relates to worked animal materials (other than those referred to in heading 96.02). These materials are mainly worked by carving or cutting. Most of them may also be moulded.

For the purposes of this heading, the expression "worked" refers to materials which have undergone processes extending beyond the simple preparations permitted in the heading for the raw material in question (see the Explanatory Notes to headings 05.05 to 05.08). The heading therefore covers pieces of ivory, bone, tortoise shell,...etc., cut to shape (including square or rectangular) or polished or otherwise worked....

As the merchandise is polished, it appears it has not merely undergone "simple preparations," but has been "worked," as described in the EN's. See HRL 951725, issued August 6, 1992, where a decorative hand-carved ostrich egg shell was classified in 9601. The subject merchandise is classifiable in heading 9601. The appropriate subheading is 9601.90.80.


The decor ostrich egg shells are classifiable in subheading 9601.90.80 as, "Worked ivory, bone, tortoise-shell,...and other animal carving material, and articles of these materials...: Other: Other." The general column one rate of duty is 3.7 percent ad valorem.


John Durant, Director

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