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.
FACTS:
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.
ISSUE:
Whether the hand-carved ostrich shell should be classified
as a festive article, a work of art or as worked animal material?
LAW AND ANALYSIS:
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
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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),
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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
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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.
HOLDING:
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.
Sincerely,
John Durant, Director
Commercial Rulings Division