BAG-5-04/CON-2-07-CO:R:C:E 225684 PH
District Director
U.S. Customs Service
10 Causeway Street, Room 603
Boston, Massachusetts 02222-1059
RE: Internal Advice; Household Effects; Use Abroad for One Year;
Subheading 9804.00.05, HTSUS; 19 CFR 148.52(a)
Dear Sir:
In your memorandum of August 31, 1994 (File: RL:DJC 94-0409),
you request internal advice concerning the applicability of the
referenced provisions to the importation of two Iranian carpets.
Our ruling follows.
FACTS:
You state that the person involved in the situation about which
you request advice is a permanent resident alien (since 1987) of
the United States whose husband has remained in their family
household in Iran. You state that the permanent resident alien
travels back to Iran periodically to be with her husband. On
August 8, 1990, she purchased two carpets in Iran and placed them
in her residence in Iran. She returned to the United States on
September 10, 1990. On July 10, 1993, she again travelled to
Iran. On February 26, 1994, she returned to the United States
with the two carpets (i.e., according to the information
available to us, she had been in Iran for approximately eight and
one-half months after the purchase of the carpets). You state
that she seeks entry of the two carpets pursuant to 31 CFR
560.514, based upon her claim that these carpets constitute
household effects under subheading 9804.00.05, Harmonized Tariff
Schedule of the United States (HTSUS). You request our advice on
the applicability of subheading 9804.00.05, HTSUS, in this
situation.
ISSUE:
Does the merchandise under consideration qualify for importation
under subheading 9804.00.05, HTSUS, in the situation described in
the FACTS portion of this ruling?
LAW AND ANALYSIS:
Except as specifically authorized, no goods or services of
Iranian origin may be imported into the United States (31 CFR
560.201 (certain exceptions, inapplicable in this case, are
listed in section 560.201)). Under 31 CFR 560.514, the
importation of Iranian-origin goods within the description of
household and personal effects under subheading 9804.00.05 (and
9804.00.20 (not applicable in this case)), HTSUS, by persons
arriving in the United States from a foreign country is
authorized, with certain restrictions (one of these restrictions
is that no more than five Iranian-origin carpets, rugs, or
similar articles such as tapestries or wallhangings are
authorized importation under section 560.514).
Therefore, determinative of whether the merchandise under
consideration may be imported into the United States is the issue
of whether it qualifies for importation under subheading
9804.00.05, HTSUS. That provision provides duty-free treatment
for:
Articles imported by or for the account of any person
arriving in the United States from a foreign country:
Books, libraries, usual and reasonable furniture and similar
household effects, if actually used abroad by him or by him
and his family not less than one year, and not intended for
any other person, or for sale.
The predecessor in the Tariff Schedules of the United States
(TSUS) was item 810.10, TSUS, which is substantively the same as
subheading 9804.00.05 (Tariff Classification Study, Explanatory
and Background Materials, Schedule 8, pp. 28, 36-37 (November 15,
1960)). The predecessor to this provision was Paragraph 1632 of
the Tariff Act of 1930 (which provided duty-free treatment for
"[b]ooks, libraries, usual and reasonable furniture, and similar
household effects of persons or families from foreign countries
if actually used abroad by them not less than one year, and not
intended for any other person or persons, nor for sale"). The
same provision was in the Tariff Act of 1922 (paragraph 1531),
the Tariff Act of 1913 (paragraph 428), the Tariff Act of 1909
(paragraph 520), and the Tariff Act of 1897 (paragraph 504).
The Customs Regulations pertaining to subheading 9804.00.05,
HTSUS, are found in 19 CFR 148.52. Under paragraph (a) of that
section:
Furniture, carpets, paintings, tableware, books, libraries,
and other usual household furnishings and effects actually
used abroad for not less than 1 year by resident or
nonresidents, and not intended for any other person or for
sale may be allowed entry ... under subheading 9804.00.05
[HTSUS]. Household effects used abroad not less than 1 year
by a family of which the importer was a resident member for
not less than 1 year during the period of use may be allowed
free entry whether or not the importer owned the effects at
the time of such use. The year of use need not be
continuous, nor need it immediately precede the time of
importation.
This provision was promulgated in the Customs Regulations (in the
same form as above, except that instead of subheading 9804.00.05,
HTSUS, the tariff provision was item 810.10, TSUS) by Treasury
Decisions 73-27, after notice in the Federal Register and the
opportunity for, and review of, public comments (37 F.R. 16092,
August 10, 1972). Formerly, the provision was found in 19 CFR
10.11 and 10.12. The second sentence from the above-quoted
provision was found in section 10.12(b) and is substantively
unchanged. Section 10.12(b), in the same form as in the 1972
Customs Regulations, is found in the 1943 Customs Regulations.
The predecessors in earlier editions of the Customs Regulations
are found in the Article 413(f) (1937 Customs Regulations),
Article 408(f) (1931 Customs Regulations), Article 382 (1923
Customs Regulations), and Article 349 (1915 Customs Regulations).
The predecessors are substantively the same as the above-quoted
second sentence in section 148.52(a).
According to the annotations in the 1915 Customs Regulations for
Article 349, the origin of the referenced language was the
decision in the G.A. Cochlan case (T.D. 26890, Abstract 9258
(1905)). In that case it was held that the predecessor to
subheading 9804.00.05, HTSUS, did not permit the free entry of
certain wedding presents received by the importer at the time of
her marriage in Canada a year before the importation, when she
had come to the United States at the time of the wedding and left
the presents in the possession of her relatives in Canada and
then attempted to enter the presents free of duty upon her return
from Canada after a visit there. The basis of the decision was
that "[i]t is apparent from the facts that the articles in
question had not actually been used abroad by the party seeking
to bring them in for one year, as is required by the provisions
of paragraph 504 [i.e., paragraph 504 of the 1897 Act, referred
to above]."
The importer in this case (through her representative) argues
that the carpets under consideration may be imported under
subheading 9804.00.05, HTSUS, on the basis of the language
therein providing for duty-free treatment "... if actually used
abroad by him or by him and his family not less than one year
...." The importer contends that the second clause in this
language provides for "a use by the person arriving in the United
States and a use by his family which added together equal the one
year minimum requirement" (pages 5 and 6 of Addendum to
Supplemental Petition). In support of this argument, the
importer cites ruling 710614 dated June 26, 1979, and Bella Haas
v. United States, 1 Cust. Ct. 140, C.D. 37 (1938).
Initially, we note that the above precedents, cited by the
importer, are not relevant to the issue under consideration.
Ruling 710614 was concerned with the interpretation of the
general restriction regarding the arrival of effects more than 10
years after the arrival of the importer, provided for in 19 CFR
148.52(d), and had nothing to do with, and in no way commented
on, the issue of whether the use by a member of the importer's
family during a period while the importer him or herself was not
physically in the family's household may be included in the 1-
year period provided for in the tariff provision. The issue in
the Bella Haas case was whether the articles there under
consideration were "actually used", not how the 1-year period is
calculated (i.e., "... it was established that the plaintiff ...
lived with her mother in Germany [and] that the article in
question had been in plaintiff's possession for more than a year
prior to her sailing ..." (1 Cust. Ct. at 141)).
We disagree with the importer's argument. Basically, the
importer would interpret subheading 9804.00.05, HTSUS, to permit
duty-free treatment thereunder if the articles under
consideration had been used abroad by the importer for not less
than one year or by the importer, his family, or any combination
thereof for not less than one year. Thus, the interpretation
proposed by the importer would permit duty-free treatment under
the provision even if the importer had used the merchandise
abroad for only one day (e.g., if the merchandise had been used
by the importer's family for one year and the importer had used,
as a member of the family, the merchandise for one day during
that year, according to the importer's interpretation, this would
be a use of the merchandise abroad by the importer and his family
for not less than one year).
As is demonstrated by the review of the tariff provision and the
Customs Regulations implementing it, Customs has long held that
the second clause in the language under consideration (providing
for use by the importer and his family) actually means that an
article may qualify for duty-free treatment under the provision
if it was used by the importer's family for at least one year and
if during this period of use the importer was a resident member
of the family for at least one year. The Customs Regulations
have explicitly so provided since 1915 and the basis of this
requirement is a published 1905 decision (the G.A. Cochlan case,
supra) explicitly stating that the tariff provision "require[s]"
"the articles in question [to have] actually been used abroad by
the party seeking to bring them in for one year" (see also,
ruling letter dated January 3, 1947, copy enclosed).
It is a doctrine of statutory construction that a "long continued
administrative practice" may be considered to have been adopted
by the legislature when the legislature reenacts, without
material change, legislation containing the provision which is
interpreted in the administrative practice after the
administrative practice is established to have been in effect
(see Joshua Hoyle & Sons., Ltd., Inc. v. United States, 25 CCPA
128, T.D. 49244 (1937); and United States v. Samuel Dunkel & Co.,
Inc., 33 CCPA 60, C.A.D. 317 (1945)). In the Hoyle case, the
Court found that a practice regarding drawback under 19 U.S.C.
1313 was a "long-continued administrative practice" (25 CCPA at
130). The Court held, "[t]he Congress having reenacted the
quoted provisions ... without material change, so far as the
issues here are concerned, as section 313 of the Tariff Act of
1922, we think the doctrine of legislative approval of long-
continued administrative practice is applicable to, and
determinative of, the issues here presented ..." (25 CCPA at
131). The Dunkel case makes it clear that for this doctrine to
be applicable, the administrative practice must have been in
effect when the legislation which is treated as approving the
practice is reenacted (i.e., in the Dunkel case, the Hoyle case
was distinguished on the basis that "there has been no proof of
administrative practice with respect to drawback on butter prior
to 1933 [i.e., the practice was not established to have been in
effect before the legislation was reenacted]" (33 CCPA at 64).
In the case under consideration, Customs practice in regard to
the issue under consideration has been established, in the
Customs Regulations, since 1915. The statutory provision
interpreted by the administrative practice has been reenacted,
without material change insofar as the issue under consideration
is concerned, at least six times (i.e., the 1909, 1913, 1922, and
1930 Tariff Acts, the conversion to the TSUS, and the conversion
to the HTSUS) after establishment of the practice. Clearly, the
doctrine of "long established administrative practice" supports
Customs interpretation of subheading 9804.00.05, HTSUS, as stated
in 19 CFR 148.52(a).
HOLDING:
The merchandise under consideration does not qualify for
importation under subheading 9804.00.05, HTSUS, in the situation
described in the FACTS portion of this ruling, because the
merchandise was not used abroad by the importer for at least 1
year or by her family for at least 1 year during which period she
was a resident member of the family for at least 1 year (19 CFR
148.52(a)).
The Office of Regulations and Rulings will take steps to make
this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels 60 days from the date of this decision.
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosure