HQ 109725: Interpretation Request of 19 CFR 123.14

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       HQ 109725

                                   October 25, 1988

            BOR-7-04-CO:R:P:C 109725 GV

            CATEGORY:  Carriers

            C. Anthony Davis, Esq.
            Allison, Davis and Baldwin
            Suite 1200 - IBM Building
            Seattle, Washington 98101

            RE:  Interpretation Request of 19 CFR 123.14

            Dear Mr. Davis:

                 This is in reference to your letter of August 24, 1988, on
            behalf of your client, a Canadian common carrier, requesting a
            ruling regarding the interpretation of section 123.14, Customs
            Regulations.  Your inquiry specifically concerns the meaning of
            the term "regularly scheduled trip" and the ramifications of
            the interchanging of foreign-based equipment while in the
            United States.

            FACTS:

                 A Canadian-based common carrier dispatches from Canada
            tractors and trailers to various destinations in the States of
            Washington, Oregon and California for freight to be loaded for
            return trips to Canada.  These vehicles must be at their points
            of loading every Monday, Tuesday and Friday of every week, 52
            weeks per year.  Some of the common areas of the scheduled
            service are Seattle, Portland, Sacramento, the Oakland-San Jose
            area and the greater Los Angeles area.  All equipment travels
            on Interstate 5 and then takes the most direct route to the
            point at which it will load the freight destined for Canada.
            The trips to these destinations are scheduled and run
            regardless of the availability of freight to be taken from
            Canada to these points in the United States.  Conversely, the
            carrier must load and schedule equipment destined for the
            United States with Canadian freight whether there are
            anticipated loads for the return trip to Canada.  In any event,
            at no time during the year are there less than 40 such
            schedules in any given week.  Based upon the seasonal nature of
















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            agricultural products which the carrier transports, the growing
            seasons of certain commodities may dictate to a certain extent
            the number of trips which may be made to or from the United
            States.  A specific item of equipment is not dedicated to any
            given route for any given period of time.  In other words,
            there is no way to determine what item of equipment will be on
            what route at any given time.

            ISSUE:

                 Whether Canadian-based tractors and trailers are
            considered to be engaged in regularly scheduled service within
            the meaning of 19 CFR 123.14(b) and (c)(1) when they must be at
            their points of loading in the United States every Monday,
            Tuesday and Friday of every week, 52 weeks per year no less
            than 40 times a week, regardless of the availability of freight
            to be transported?

            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 equipment in question is not within the
            definition of intangibles as shown in General Headnote 5,
            Tariff Schedules of the United States (19 U.S.C. 1202), it is
            subject to entry and payment of any applicable duty if not
            specifically exempted by law or 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 section 123.14 (a), Customs
            Regulations (19 CFR 123.14(a)).

                 Section 123.14(c), Customs Regulations (19 CFR 123.14(c))
            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.











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                 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.  In other words, the trips must
            be on a regular schedule as opposed to being made if and when a
            load is available.

                 Customs determinations as to whether a particular vehicle
            is in use on a regularly scheduled trip are made on a case-by-
            case basis after reviewing all relevant information regarding
            the movement of the vehicle(s) in question.

                 The information provided in your letter of August 24
            indicates that the subject Canadian-based tractors and trailers
            are engaged in regularly scheduled service.

            HOLDING:

                 Canadian-based tractors and trailers are considered to be
            engaged in regularly scheduled service within the meaning of 19
            CFR 123.14(b) and (c)(1) when they must be at their points of
            loading in the United States every Monday, Tuesday and Friday
            of every week, 52 weeks per year, no less than 40 times a week,
            regardless of the availability of freight to be transported.

                 We note that your second matter of inquiry concerns the
            interchange of equipment while in the United States.  You ask
            that in making the above determination we also respond to two
            hypotheticals.  Pursuant to section 177.7, Customs Regulations
            (19 CFR 177.7) no ruling letter will be issued with regard to
            transactions or questions which are essentially hypothetical in
            nature.  Accordingly, we decline to issue any ruling with
            regard to the hypotheticals posed in your letter.

                                         Sincerely,




                                         B. James Fritz
                                         Chief
                                         Carrier Rulings Branch




            CO:R:P:C:GVEREB:rk:10/6/88