OT:RR:BSTC:CCI H200697 ALS
Ms. Diane Wilson
Financial Controller
Entwistle France sarl
5 Rue des Beaux Arts
Paris, France 75006
RE: Restricted Merchandise; Archaeological Sculpture from Republic of Mali; 19 U.S.C. § 2604; 19 U.S.C. § 2606; 19 U.S.C. § 2607; 19 CFR §§ 12.104 et seq.; NCSD Case No. N194135
This is in response to your request for a ruling regarding the admissibility of a particular sculpture from the Republic of Mali. Our decision is set forth below.
FACTS:
You submitted a ruling request to our National Commodity Specialist Division (NCSD), dated November 22, 2011, in which you requested a ruling on the admissibility of the subject item. The subject item is described as “a Dogon Abstract Figure” that is made of wood and is 10.5 inches in height. It is depicted in the photo below as the item on the right:
In response to your submission, NCSD issued a binding ruling, dated November 23, 2011, on the tariff classification of the sculpture (NCSD Ruling N194135). The ruling establishes the tariff classification of the sculpture as subheading 9705.00.0070 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic, or numismatic interest-Archeological, historical, or ethnographic pieces.” You then submitted the subject request to us as noted above.
ISSUE:
Whether the subject item is restricted merchandise, specifically as archeological or ethnological and/or cultural materials, that may be permitted admission in accordance with CBP laws.
LAW AND ANALYSIS:
The Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. §§ 2601-2613, sets forth the law of the United States as it became a party to the 1970 UNESCO (United Nations Educational, Scientific and Cultural Organization) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (hereinafter “UNESCO Convention”). CBP regulations implementing the CPIA are set forth at 19 CFR 12.104 et seq.
Section 2601 of the CPIA sets forth the definitions to be used in the statute. The relevant portion of 19 U.S.C. § 2601, provides, in pertinent part, that:
For purposes of this chapter --
(2) The term “archaeological or ethnological material of the State Party” means--
(A) any object of archaeological interest;
(B) any object of ethnological interest; or
(C) any fragment or part of any object referred to in
subparagraph (A) or (B);
which was first discovered within, and is subject to export control by, the State Party.
(9) The term “State Party” is defined as any nation which has ratified, accepted, or acceded to the Convention.
Under 19 U.S.C. § 2602, the President is authorized to enter into a bilateral agreement with another State Party that requests protection of cultural property under the CPIA. Via a series of Executive Orders dating to 1986, this authority has been delegated to the United States Information Agency in consultation with the Department of State and the Department of Treasury. See Executive Order 12555, 51 Fed. Reg. 8475 (March 10, 1986), amended by Executive Order 13286 (February 28, 2003) (concerning the transfer of functions from the Department of Treasury to the Department of Homeland Security).
Under 19 U.S.C. § 2603, the President is authorized to implement emergency import restrictions on archeological or ethnological materials from a State party in accordance with 19 U.S.C. § 2606.
Under 19 U.S.C. § 2604, the United States may enter into a bilateral agreement with another State Party or multilateral agreements with other nations to restrict the importation of archeological or ethnological materials that are in jeopardy of pillage. The Secretary of Homeland Security shall promulgate a list by regulation of archeological or ethnological material of the State Party that is covered by the bilateral agreement.
Under 19 U.S.C. § 2606, no designated archaeological or ethnological material that is exported from the State Party after the designation of such material under section 2604 may be imported into the United States unless the State Party issues a certification or other documentation which certifies that such exportation was not in violation of the laws of the State Party. Section 2606 sets forth the methods of satisfying the certification requirements for establishing lawful importations.
Under 19 U.S.C. § 2607, no stolen article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution may be imported into the United States after the effective date of [this statute] or after the date of entry into force of the Convention for the State Party. The effective date of section 2607 was 90 days after January 12, 1983, approximately April 12, 1983. See United States v. An Original Manuscript Dated November 19, 1778, 1999 U.S. Dist. LEXIS 1859 (S.D.N.Y. 1999). See also 19 CFR 12.104a(a). The Republic of Mali became party to the Convention on July 6, 1987. See 19 CFR 12.104b.
Mali and the United States have also entered into a bilateral agreement, pursuant to 19 U.S.C. § 2604, to establish import restrictions on archeological or ethnological materials from that country, effective in 1977. See CBP Decision 07-77; 19 CFR 12.104g(a). The list of such agreements is set forth in 19 CFR 12.104g(a). Pursuant to section 12.104g(a), all such agreements set forth therein are “effective no more than five years beginning on the date on which the agreement enters into force with respect to the United States.” The Republic of Mali and the United States first entered into the agreement on September 19, 1993. See 58 Fed. Reg. 492428 (Sept. 19, 1993) [hereafter referred to as the “Agreement.”] It is this Agreement that designates the subject Dogon sculpture pursuant to section 2604.
Section 12.104g(a) also states that the initial five-year period may be extended for additional periods of “not more than five years if it is determined that the factors which justified the initial agreement still pertain and no cause for suspension of the agreement exists,” and “any such extension is indicated in the listing.” While the listing does not indicate such, the Agreement has in fact been extended on three subsequent occasions, most recently on September 19, 2007. See 72 Fed. Reg. 53414 (Sept. 19, 2007).
As you correctly note, the Agreement restricts the importation of items such as the subject Dogon sculpture into the United States unless it is accompanied by certification that it was legally exported from Mali. See 58 Fed. Reg. 49428, 49430 (Sept. 23, 1993); see also 19 CFR 12.104c(a). No such certification has been produced in this case. CBP Regulations also allow importation of the subject item if “satisfactory evidence is presented to the port director that such designated material was exported from the State Party on or before the date on which such material was designated under [section] 2604.” See 19 CFR 12.104c(c).
You have provided a page from a book that has a picture the subject sculpture with a caption that reads, “Figure Dogon Mali Wood 10 ½” (27 cm) high. Collection Dr. Andre, France.” The Museum of Modern Art, New York, "Primitivism" in 20th Century Art: Affinity of the Tribal and the Modern, p. 73 (1984). Additionally, on an unnumbered page of the book is a statement that reads, “Published in conjunction with an exhibition of the same title shown at the following museums: The Museum of Modern Art, New York; Detroit Institute of Arts; Dallas Museum of Art.” Entwistle also provided a page from a brochure for an auction in London in November 1993. The page has a picture of the subject sculpture (along with another item) with a caption that reads, “An Unusual Dogon Figure,… Height: 27 cm. (10 ½ in.)… Provenance: Coll. Doctor E. Andre, France. (Emphasis in original.) Taken together, these documents provide satisfactory evidence that the subject Dogon sculpture was exported from Mali and has been in the collection of Dr. E. Andre of France since at least 1984, several years before the Agreement was enacted. Thus, the importation of the subject item is permitted pursuant to 19 CFR 12.104c(c).
HOLDING:
Based on the foregoing, we find that the subject Dogon sculpture was exported from Mali before the enactment of the Agreement. Therefore, the importation of the subject sculpture is permissible pursuant to 19 CFR 12.104c(c).
Sincerely,
George Frederick McCray
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Immigration Branch
Office of International Trade, Regulations & Rulings
U.S. Customs and Border Protection