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HQ 112913

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December 3, 1993

BOR-7-04-CO:R:IT:C 112913 GEV

CATEGORY: CARRIER

William H. Shawn, Esq.
Shawn, Mann & Niedermayer
1850 M Street, N.W., Suite 280
Washington, D.C. 20036

RE: Instruments of International Traffic; Canadian-based Trucks; Local Traffic; Regular Schedule; 19 U.S.C. 1322

Dear Mr. Shawn:

This is in response to your letter dated October 4, 1993, on behalf of your client, Gershman Transport International Ltd. ("Gershman"), requesting a clarifying ruling concerning Customs Ruling 112766, dated July 8, 1993. The clarification you request is set forth below.

FACTS:

"Gershman" of Winnipeg, Manitoba, Canada, conducts international transport operations between the United States and Canada. In a letter dated June 15, 1993, to the Carrier Rulings Branch, U.S. Customs Service, Gershman proposed to provide service for local traffic in the United States on its regularly scheduled international routes, a service it had previously not undertaken. In Customs Ruling 112766, dated July 8, 1993, it was held that the proposed local traffic was within the permitted exception for local traffic set forth in 19 CFR 123.14(c)(1).

Subsequent to receipt of the Customs Ruling 112766, Gershman seeks clarification as to its applicability in view of the fact that although the proposed movement of their vehicles will occur on what was stated to be a weekly service, it is possible the specific hour of the day or day of the week may fluctuate, depending upon computerized inventory control requirements imposed by the U.S. shipper or receiver of such international freight. At other times, Gershman may add additional tractor-trailer units, as additional "sections" to the proposed weekly schedule, to meet excessive demands. It is stated that at no time will Gershman fail to conduct its scheduled weekly service, unless it later elects to abandon such service entirely.

ISSUE:

Whether variations in the specific hour of the day or day of the week in a weekly schedule of a foreign-based truck renders such service other than "regularly scheduled" within the meaning of 19 CFR 123.14(c)(1).

LAW AND ANALYSIS:

Section 141.4, Customs Regulations (19 CFR 141.4), provides that entry as required by title 19, United States Code, section 1484(a) (19 U.S.C. 1484(a)), shall be made of every importation whether free or dutiable and regardless of value, except for intangibles and articles specifically exempted by law or regulations from the requirements for entry. Since the foreign-based trucks in question are not within the definition of intangibles as shown in General Note 4, Harmonized Tariff Schedule of the United States (HTSUS; 19 U.S.C. 1202, as amended), they are subject to entry and payment of any applicable duty if not specifically exempted by law and regulations.

Instruments of international traffic may be entered without entry and payment of duty under the provisions of 19 U.S.C. 1322. To qualify as instruments of international traffic, trucks having their principal base of operations in a foreign country must be arriving in the United States with merchandise destined for points in the United States, or arriving empty or loaded for the purpose of taking merchandise out of the United States (see 19 CFR 123.14(a)).

A foreign truck tractor which arrives in the United States in international traffic towing a foreign trailer, either empty or loaded, constitutes a foreign "truck" as that term is used in sections 123.14(a), (b), and (c)(1), Customs Regulations (19 CFR

Section 123.14(c), Customs Regulations, states that with one exception, a foreign-based truck, admitted as an instrument of international traffic under section 123.14, shall not engage in local traffic in the United States. The exception, set out in section 123.14(c)(1), states that such a vehicle, while in use on a regularly scheduled trip, may be used in local traffic that is directly incidental to the international schedule.

Customs has long-held that a carrier may be considered as engaged in "regularly scheduled" service whether trips are scheduled hourly, daily, weekly, etc., provided the trips are regular, not varied, and are over an established route. Trips made if and when a load is available do not qualify.

In regard to variations in the specific hour of the day or day of the week of Gershman's proposed weekly service, it is our opinion that while the former is not fatal to a determination that an itinerary is "regularly scheduled", the same cannot be said with regard to the latter. This finding is based on the legal definitions of the operative terms.

The term "regularly" is defined as follows:

"At fixed and certain intervals, regular in point of time. In accordance with some consistent or periodical rule or practice." Black's Law Dictionary, Fifth Edition (1979).

The term "week" is defined as follows:

"A period of seven consecutive days; and, in some uses, the period beginning with Sunday and ending with Saturday." Black's Law Dictionary, Fifth Edition (1979), citing Leach v. Burr, 188 U.S. 510, 23 S.Ct. 393, 47 L.Ed. 567 (1902).

With regard to the administration of 19 CFR 123.14(c)(1), the above definitions must, to the extent possible, be read in pari materia. Such a construction necessitates a finding that a "regularly scheduled" weekly service is one that encompasses a period of seven consecutive days (the first part of the above definition of "week") without any variation as to the specific day. To deem a week, in the context of the case under consideration, as meaning a calendar week (the second part of the above definition of "week") and thereby allowing variations in specific days of the calendar week would be contra to the above definition of "regularly" inasmuch as such variations would result in shipments occurring at other than "fixed and certain intervals..."

HOLDING:

Variations in the specific hour of the day in a weekly schedule of a foreign-based truck do not render such service other than "regularly scheduled" within the meaning of 19 CFR 123.14(c)(1). However, variations in the specific day of the  - 4 -
week in a weekly schedule of a foreign-based truck do render such service other than "regularly scheduled" within the meaning of 19 CFR 123.14(c)(1).

Sincerely,

Arthur P. Schifflin

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