CLA-2-RR:CR:GC 966030ptl
Mr. Joel Simon
Serko & Simon, LLP
1700 Broadway
New York, New York 10019
RE: Classification of a stone Ushabti.
Dear Mr. Simon:
This is in response to your letter to the Director, Commercial Rulings Division, dated September 30, 2002, in which you request, on behalf of your client, Sotheby's International, the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a Stone Ushabti of Neferhotep. In another letter, dated October 28, 2002, you informed Customs that your client had recently imported the subject merchandise, and you provided a copy of the entry documentation. You also requested that Customs issue a ruling on the classification question because, due to the nature of your client's business, a similar question will recur.
FACTS:
The article under consideration is described as being the stone Ushabti of Neferhotep. 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." According to Mr. Richard Keresey, Senior Vice President and Worldwide Director of Antiquities at Sotheby's, Neferhotep was 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 lower half of the figure. It has been carved from stone, said to be serpentine, and measures approximately 10 inches in height and 2 inches in width.
In your request for a classification, you suggest that the article should be classified in subheading 9703.00.00, HTSUS, as: Original sculpture and statuary, in any material. Your follow-up letter informing this office that your client had entered the article contained entry documentation that indicates that the article was classified, at entry, in subheading 9706.00.0060, HTSUS, which provides for antiques of an age exceeding one hundred years, other. Both provisions provide a free rate of duty.
ISSUE:
What is the classification of an Egyptian Stone Ushabti, dated from the 18th Dynasty?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS 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 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 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. Further, this expert states that this example is the only known ushabti belonging to this official.
You argue that because the article has been crafted from stone and that it is "a beautiful work of art" it should be considered the work of an unknown master sculptor. You discuss at length the requirements of Customs Regulations 19 C.F.R. 10.48 which specify information which must be included on invoices accompanying imported sculptures entered under Heading 9703, HTSUS, and you provide reasons why your client should not have to comply with the requirements in the case of this article.
The ENs to heading 97.03 provide in part, "This heading covers original sculptures and statuary, ancient or modern." In HQ 960924, dated September 15, 1999, Customs 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, 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), 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 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 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]
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.
We agree with your expert that the article is an antique. Its age far exceeds the 100 year requirement for classification in heading 9706, HTSUS. However, 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 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, …." Sotheby's expert has stated that this is the only known example. Further, the ENs 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 ushabti is certainly within the class of articles contemplated by the examples provided by the ENs.
HOLDING:
An Egyptian Stone Ushabti, dated from the 18th Dynasty, 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.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division