CLA-2 CO:R:C:F 951725 STB

Ms. Cathy Gibson
Emery Customs Brokers
P.O. Box 60949-AMF
Houston, Texas 77205

RE: Hand-carved Ostrich Egg Shell

Dear Ms. Gibson:

This is in response to your inquiry requesting the tariff classification of a carved ostrich egg shell. A sample was submitted with your request.


The subject article is an ostrich egg shell, the front of which has been hand-carved to create a scene depicting a lion surrounded by trees and grass. An open wooden circular stand is glued to the bottom of the egg shell for display purposes. The egg shell is carved by native tribesmen of South Africa and this particular sample is signed "L. Gwala." The surface of the item has been painted and/or laminated.


Whether the hand-carved ostrich shell should be classified as a festive article, a work of art or as worked animal material?


Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all 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. In the event that the goods cannot be


classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. 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.

The headings at issue are as follows:

(a) 9505, HTSUSA, Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof;

(b) 9703, HTSUSA, Original sculptures and statuary, in any material;

(c) 9601, HTSUSA, Worked ivory, bone, tortoise-shell, horn, antlers, coral, mother-of-pearl and other animal carving material, and articles of these materials.

Heading 9505, HTSUSA, provides, in pertinent part, for "[f]estive, carnival or other entertainment articles." The Explanatory Notes offer guidance in the interpretation of the headings. The Explanatory Note to heading 9505 indicates that the heading covers:

(A) Festive, carnival or other entertainment articles which in view of their intended use are generally made of non-durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here.

(2) Articles traditionally used at Christmas festivities, e.g., artificial Christmas trees (these are sometimes of the folding type),


nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

* * *

To qualify as a festive article of heading 9505, an item must be both decorative and traditionally associated with a particular holiday.

The article in question is not traditionally associated with a particular holiday. In prior rulings, Customs has classified egg shells and other egg shaped articles in heading 9505 when those items were decorated with traditional Easter colors or symbols. The carved ostrich egg shell, however, is likely to be displayed on a year-round basis and demonstrates no relationship to Easter or any other festive occasion. This determination is necessitated by the lion/jungle depiction on the shell and the bland white and "beige" colors of the article.

We next consider classification in Chapter 97, HTSUSA. In order for an article to be classified in Chapter 97 it must meet the requirements for "works of art." In a decision interpreting this term, the United States Customs Court held that in order for an article to be free of duty under the Tariff Schedules of the United States (TSUS), item 765.15, as original sculptures or statuary, it must be of "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). The Customs Court determined that to be classified under the provision for "fine arts" an article must possess originality of conception, execution and design. That court's interpretation of the provision concerning "original sculptures" under the TSUS is equally applicable to the successor provision in Chapter 97.

A Chapter 97 work of art must be a work of the free fine arts, rather than the decorative or industrial arts. The phrase "industrial or decorative arts" includes works performed by potters, glassmakers, goldsmiths, weavers, woodworkers, jewelers, and other artisans and craftsmen. The Customs Court has determined that although works by such professions are considered both artistic and beautiful, "it can hardly be seriously contended that it was the legislative purpose 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); Headquarters Ruling Letter (HRL) 063320, dated September 27, 1979. The Explanatory Notes to Chapter 97, HTSUSA, reflect this interpretation by excluding works of conventional craftsmanship of a commercial character such as ornaments, religious effigies, articles of personal adornment, etc. Accordingly, the phrase "free fine arts" does not include those works in the decorative or industrial arts. Court decisions and prior Customs rulings have noted various factors that would tend to show whether items are works of the "free fine arts," including display of the items 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.

The ostrich egg shell is a decorative, ornamental item but is not a work of the "free fine arts." No evidence was presented that the article is going to be, or ever has been, exhibited in an art gallery or museum. Although the article is signed, there is no evidence that the creator is a well known artist. Additionally, the invoice price of the article is only nine dollars and fifty cents ($9.50).

Thus, the subject ostrich egg shell is not classifiable as a festive article or as a work of art. It is classifiable, however, in heading 9601, HTSUSA, the provision for other animal carving material and articles of these materials.


The hand-carved ostrich shell is properly classified in subheading 9601.90.80, HTSUSA, the provision for 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
Commercial Rulings Division