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HQ W968392




February 9, 2007

CLA-2 RR:CTF:TCM W968392ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 9705.00.0090

Mr. Joel Simon
Serko & Simon, LLP
1700 Broadway
New York, NY 10019

RE: Reconsideration of HQ 966030; Affirmed

Dear Mr. Simon:

This is in response to a meeting in August 2006, which you, Sotheby’s counsel, and a representative of the American Continental Group, held with Sandra Bell, Myles Harmon, and Glenn Vereb, of Customs and Border Protection (CBP). During that meeting you raised several issues, among which was the classification of a stone ushabti provided by ruling HQ 966030, dated January 28, 2003. That ruling classified the article, described as being a stone “Ushabti of Neferhotep,” dating from 1479-1400 BC, in heading 9705, HTSUS, as a collectors piece of historical, archeological or ethnographic interest. In your discussion, you indicated you thought heading 9706, HTSUS, which provides for antiques of an age exceeding one hundred years, might be more applicable.

We have reviewed HQ 966030 and determined that the classification of the article provided therein is correct for the reasons discussed below.

FACTS:

The article under consideration is described as a stone ushabti. An ushabti is defined in the Unabridged Random House Dictionary of the English Language ©1973, as "Shawabti, a figurine placed in an ancient Egyptian tomb to serve as a slave for the soul or as a substitute for the soul in performing forced labor, also, ushabti." The particular one under consideration has inscriptions on it identifying it as being prepared for Neferhotep, an important official of the 18th Dynasty in Egypt, during the reign of Tuthmosis III and Amenhotep II, circa 1479-1400 BC. The article is a statuette that resembles a miniature sarcophagus with hieroglyphic writing along the front of the lower half of the figure. The article has been carved from stone, said to be serpentine, and measures approximately 10 inches in height and 2 inches in width.

ISSUE:

What is the classification of the Egyptian Stone Ushabti of Neferhotep, dated from the 18th Dynasty, circa 1400 BC?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most 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 GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS subheadings under consideration are, in relevant part, as follows:

9703.00.0000 Original sculptures and statuary, in any material

9705.00.00 Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest 9705.00.0090 Other.

9706.00.00 Antiques of an age exceeding one hundred years 9706.00.0060 Other

The article being classified is a stone measuring approximately 10 inches high and 2 inches wide that has been carved so that it resembles a scale model of an ancient Egyptian sarcophagus. An expert in the field has described the article as being an ushabti belonging to an individual who is identified as being an official of the 18th Dynasty of Egypt, circa 1479 – 1400 B.C. This identification was based upon a deciphering of the hieroglyphics on the lower half of the figure. Further, this expert states that this example is the only known ushabti belonging to this official.

In considering the classification of this object, we acknowledge and accept the opinion provided by your expert and agree that the artifact is indeed a relic from Ancient Egypt.

In your initial ruling request, you stated that because the article had been carved from stone, and was “a beautiful work of art,” it should be considered for classification in subheading 9703 as an original sculpture or statue.

In HQ 966030, CBP rejected that subheading by referring to the ENs to heading 97.03 that provide in part, "This heading covers original sculptures and statuary, ancient or modern." That ruling referred to HQ 960924, dated September 15, 1999, in which CBP discussed some of the criteria for classification of articles in Heading 9703, and stated, in part:

There have been no Court decisions interpreting this HTSUS provision, although there are many such decisions interpreting the corresponding provision in earlier tariff schedules, the Tariff Schedules of the United States (TSUS) and its predecessors. The legislative history of the law implementing the HTSUS (Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418, [§1201], August 23, 1988, 102 Stat. 1107, 1147) states that:

[D]ecisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS. [H.R. Rep. No. 576, 100th Cong., 2d Sess. 549-550 (1988); 1988 U.S.C.C.A.N. 1547, 1582-1583; see also Hemscheidt Corp. v. United States, 18 CIT 641, 858 F. Supp. 223 (1994), affirmed 72 F.3d 868 (Fed, Cir. 1995); Hewlett-Packard Co. v. United States, CIT Slip Op. 98-76 (1998), affirmed, CAFC Slip Op. 98-1537, in which the CAFC stated: "Where the text of a tariff provision has undergone only minor changes from the TSUS to the HTSUS, the high values of uniformity and predictability not to mention the merits of honoring Congress' decision to retain prior policy counsel courts to credit prior decisions interpreting the TSUS provision."]

The nomenclature in heading 9703, "[o]riginal sculptures or statuary" is unchanged from predecessor tariffs (item 765.15, TSUS; paragraph 1807(a), Tariff Act of 1930, as amended), and the modifier "in any material" and applicable legal notes represent only "minor changes" (see Hewlett-Packard, supra) from the predecessor provisions. Accordingly, decisions under the TSUS and previous tariffs in regard to heading 9703 are properly instructive in the interpretation of heading 9703.

In H.H. Elder & Co, Forest Lawn Co. v. United States, 64 Cust. Ct. 182, C.D. 3979 (1970), the Customs Court, Third Division, determined that a bust of George Washington, sculpted by a professional sculptor with instructions to produce a bust that would look like the one in the Old North Church in Boston, Massachusetts, was not classifiable as "original sculpture or statuary" of item 765.15, TSUS (emphasis added)[sic], but was classifiable as "[s]tone statutory and sculptures not specially provided for, the professional productions of sculptors only" of item 513.51, TSUS. The Court adopted as the test of originality a test used in interpreting paragraph 1807 of the Tariff Act of 1930, stating:

The test of originality which is laid down in the cited cases is whether the artist who executed the sculpture or statuary exercised his own esthetic imagination and artistic conception in creating the work. ... [64 Cust. Ct. at 184, quoting Forest Lawn Co. and H.H. Elder & Co. v. United States, 41 Cust. Ct. 411, 412, Abstract 62476 (1958)]

The Court went on to state:

Since there is also no proof that the bust of George Washington in Old North Church, Boston, is itself an original sculpture and work of art in the tradition of the free fine arts in that medium, there is no basis upon which we can find that the imported bust is a reproduction of an original sculpture [citation omitted], let alone a reproduction of a work of art, made from the sculptor's original work or model, as the law provides. [64 Cust. Ct. at 184-185]

See also, H.H. Elder & Co., Forest Lawn Co. v. United States, 65 Cust. Ct. 521, 525-526, C.D. 4131 (1970), in which the Court found that:

The remaining statutes [sic] are not original works of art as they do not meet the test of originality which, as laid down by this court, is whether the artist who executed the sculpture or statuary exercised his own aesthetic imagination and artistic conception in creating the work [citations omitted]. These statutes [sic] are merely faithful imitations of the ones at Forest Lawn; their successful execution was dependent solely upon [the sculptor's] skill in copying the so-called originals. [See also United States v. J.E. Bernard & Co., Inc., 17 CCPA 475, 479, T.D. 43932 (1930), quoted in this decision at 65 Cust. Ct. 526].

In HQ 966030, CBP stated: “Based on the above discussion, it is our opinion that the ushabti, while crafted in an expert manner, does not possess the required element of esthetic imagination and originality that is necessary for classification in heading 9703, HTSUS. The underlying character and form of the piece was commonly used at its time of fabrication. The unique portion of the ushabti is the small area where the hieroglyphics identifying the article as Neferhotep's have been carved.”

Since we determined that the article was not a good of subheading 9703, it was necessary to examine other potential subheadings. We agreed with your expert that the article is an antique. Its age far exceeds the 100-year requirement for classification in heading 9706, HTSUS. However, in this instance, we determined that the article is more completely described under the terms of heading 9705, HTSUS, which provides for “collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest.” The Chapter notes to Chapter 97 provide, in relevant part, that: “4(b) Heading 9706 does not apply to articles of the preceding headings of this chapter.”

The ushabti is clearly a piece of archaeological and historical interest. The ENs to heading 97.05, provide, in part, that the articles " derive their interest from their rarity, ." When considering this particular article, Sotheby's expert has stated that this is the only known example. Further, the ENs to this subheading provide as examples of articles which are collector's pieces of archaeological interest the following: “(1) Articles being the material remains of human activity suitable for the study of earlier generations, such as: mummies, sarcophagi, ."

The subject ushabti is certainly within the class of articles contemplated by the examples provided by the ENs to subheading 9705, HTSUS. It is rare; it is identified with a particular individual; and it relates to the activities of earlier generations. However, we do not believe subheading 9705, HTSUS, should be used for all archaeological antiquities. Classification of articles in the two subheadings 9705 and 9706 is dependent on the unique characteristics of the actual article. Some articles that are classified in heading 9705, as collector’s pieces of historical interest being the material remains of human activity may or may not be older than 100 years of age. Similarly, some articles that are antiques by virtue of the definition in heading 9706, (being of an age exceeding one hundred years) may not be unique or significant enough to be “suitable for study of the activities of earlier generations” and, thus, would not be classifiable in heading 9705, HTSUS.

Because the factual details and history associated with works of fine art, antiquities and antiques will possibly differ with each example presented, the classification of these articles will often be dependent on this provenance. Accordingly, CBP recommends that you seek classification advice for such articles.

HOLDING:

The stone “Ushabti of Neferhotep, dating from 1479-1400 BC,” is classified in subheading 9705.00.0090, HTSUS, which provides for: “Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest Other.” The 2007 duty rate is: Free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

HQ 966030, dated January 28, 2003, is affirmed.

Sincerely,

Myles B. Harmon, Director

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