CLA-2 CO:R:C:F 952512 LPF
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
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
LAW AND ANALYSIS:
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
...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
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
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
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 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
(A) Collections and collectors' pieces of zoological,
botanical, mineralogical or anatomical interest,
(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
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
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
Commercial Rulings Division