HQ 227128: Instruments of international traffic; 19 U.S.C. 1322; 19 CFR123.14(c); Foreign- based trucks; Local traffic; Regularlyscheduled trip; Directly incidental to international schedule

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 227128

                                 August 6, 1996

BOR-4-04-RR:IT:EC   227128 GOB

CATEGORY:   Carriers

Bruce Caputo, Esq.
Rockefeller Center
1270 Avenue of the Americas
Suite 1817
New York, N.Y. 10020-1701

RE:  Instruments of international traffic; 19 U.S.C. 1322; 19 CFR
123.14(c); Foreign- based trucks; Local traffic; Regularly
scheduled trip; Directly incidental to  international schedule

Dear Mr. Caputo:

     This is in response to your letter of July 24, 1996 on
behalf of Ray Bourbonnais & Son, Inc. ("Trucker").

FACTS:

     You state as follows:

     Trucker respectfully requests that the Customs Service rule
     or otherwise determine on a permanent basis that the
     Montreal to Long Island to Brooklyn to Chateaugay to
     Montreal trips by Trucker described herein comply with
     requirements of 19 CFR 123.14(c)1 and as such are exempt
     from formal entry and payment of duty.

     You describe the pertinent facts as follows:

     To service Star [its client in Brooklyn, New York], trucker
     takes Route 40 from the Montreal, Canada area, to Route 15,
     to the U.S. border and thereafter takes Route 87 (the
     Northway, New York State Thruway) to New York City.

     On this trip from Canada, Trucker is carrying wood chips and
     dried hay collected in Canada.  On arriving in the New York
     City area with the wood chips, Trucker takes Route 95 over
     the Triboro Bridge to Route 295 (the Brooklyn-Queens
     Expressway) to Route 495 (the Long Island Expressway) to
     various stables and riding academies on Long Island where
     the wood chips and hay are delivered.

     Thereafter, Trucker takes the now empty vehicle to 495, to
     295, to Metropolitan Avenue, to Gardner Avenue, to Star's
     facility, where the wood fuel is loaded.  Then Trucker takes
     Metropolitan Avenue to Route 295, to Route 95 over the
     Triboro Bridge, to Route 87, to Plattsburgh, New York, where
     Trucker takes Route 190 to Ellenberg and then Route 11 to
     Chateaugay where the wood fuel is unloaded.

     Trucker returns empty to its base in Canada by taking Route
     374 to the Canadian border.

     This route is fixed with potential minor variations on Long
     Island near the wood chip and hay using stables and riding
     academies.  But the travel route is planned and followed
     with regularity because Star must get the material off its
     facility and Chateaugay must receive the material for fuel.

ISSUE:

     Whether vehicles may engage in the above-described traffic
without the entry and payment of duty pursuant to 19 CFR 123.14.
 
LAW AND ANALYSIS:

     19 CFR 141.4 provides, in pertinent part:

      141.4 Entry required.

     (a) General.  All merchandise imported into the United
     States is required to be entered, unless specifically
     excepted.

     (b) Exceptions.  The following are the exceptions to the
     general rule:
     *    *    *   *   *
     (3) Instruments of international traffic described in
     10.41a of this chapter, under the conditions provided for
     in that section.  See also Chapter 98, Subchapter III, U.S.
     Note 4, HTSUS.

     19 U.S.C. 1322(a) states in part:

     Vehicles and other instruments of international traffic, of
any class specified by   the Secretary of the Treasury, shall be
excepted from the application of the    customs laws to such
extent and subject to such terms and conditions as may be   prescribed in regulations or instructions of the Secretary of the
Treasury.

     19 CFR 10.41(d) provides:

     10.41   Instruments; exceptions.
     *   *   *   *   *
     (d) Any foreign-owned vehicle, aircraft, or undocumented
     boat brought into the United States for the purpose of
     carrying merchandise or passengers between points in the
     United States for hire or as an element of a commercial
     transaction, except as provided at 123.14(c), is subject to
     treatment as an importation of merchandise from a foreign
     country and a regular entry therefor shall be made.  The use
     of any such vehicle, aircraft, or boat without a proper
     entry having been made may result in liabilities being
     incurred under section 592, Tariff Act of 1930, as amended
     (19 U.S.C. 1592).
     
           19 CFR 123.14 provides in pertinent part:

     123.14   Entry of foreign-based trucks, busses, and
     taxicabs in international traffic.

     (a)   Admission without entry or payment of duty.  Trucks,
     busses, and taxicabs, however owned, which have their
     principal base of operations in a foreign country and which
     are engaged in international traffic, arriving with
     merchandise or passengers destined to points in the United
     States, or arriving empty or loaded for the purpose of
     taking out merchandise or passengers, may be admitted
     without formal entry or the payment of duty.  Such vehicles
     shall not engage in local traffic except as provided in
     paragraph (c) of this section.
     *   *   *   *   *
     (c)   Use in local traffic.   Foreign-based trucks, busses,
     and taxicabs admitted under this section shall not engage in
     local traffic in the United States unless the vehicle comes
     within one of the following exceptions:

     (1)  The vehicle may carry merchandise or passengers between
     points in the United States while in use on a regularly
     scheduled trip if such carriage is directly incidental to
     the international schedule.    

     In Ruling 111556 dated April 16, 1991, which involved 19 CFR
123.14(c)(1), we stated:

     Whether the use of an instrument of international traffic
     constitutes a diversion from international traffic is based
     on the facts in each case.  The transportation of
     merchandise in international traffic is the key; the
     domestic movement of merchandise must be secondary to the
     international movement and meet other criteria.  There must
     be a regular international schedule and the domestic
     movement must follow the same basic route as the merchandise
     moving in international traffic.
     (Emphasis supplied.)

     The same language, or substantially similar language, is
found in other rulings, e.g., Ruling 111669 dated June 6, 1991.

     Certain language in 19 CFR 123.14(c)(1) is key:

     
     while in use on a regularly scheduled trip if such carriage
     is directly incidental to the international schedule. 
     (Emphasis supplied.)

     In Ruling 111669, we stated:

     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.

     You state that the trips from Brooklyn, New York to
Chateaugay, New York are scheduled every Wednesday and Friday
morning between 8:00 a.m. and 10:00 a.m. You make no statement
with respect to the scheduling of the trips to Long Island.  The
international part of the trip is from Montreal to Long Island. 
Thus, we are unable to conclude that there is a "regular
international schedule."  See Ruling 111556, excerpted supra. 
Pursuant to 19 CFR 123.14(c)(1), it is the international carriage
which must be regularly scheduled, not the domestic carriage.  

     Additionally, we are unable to conclude that the domestic
carriage (from Brooklyn, New York to Chateaugay, New York) is
directly incidental to the international schedule, as required by
19 CFR 123.14(c)(1).  (Ruling 111556 stated that the "domestic
movement of merchandise must be secondary to the international
movement.") In making this determination, we focus on the word
"incidental."

     The Random House Dictionary of the English Language (1973
ed., unabridged) defines the adjective "incidental" as follows:

     incidental ... 1. happening or likely to happen in
     fortuitous or subordinate conjunction with something else. 
     2.  likely to happen or naturally appertaining ...  3. 
     incurred casually and in addition to the regular or main
     amount: incidental expenses.   
     -Syn. 1. casual, chance, fortuitous, contingent.  -Ant.  1.
     fundamental.

     Webster's Third New International Dictionary (1968 ed.,
unabridged) defines the adjective "incidental" as follows:

     incidental ... 1: subordinate, nonessential, or attendant in
     position or significance: as a: occurring merely by chance
     or without intention or calculation : occurring as a minor
     concomitant ... 2: met or encountered casually or by
     accident : chance...

     Black's Law Dictionary (fifth ed., 1979) defines
"incidental" as follows:

     Incidental.   Depending upon or appertaining to something
     else as primary; something necessary, appertaining to, or
     depending upon another which is termed the principal;
     something incidental to the main purpose.  The Robin
     Goodfellow, D.C. Wash., 20 F. 2d 924, 925.

     Courts (other than the court in The Robin Goodfellow, supra)
have interpreted the word "incidental" consistent with the above
definitions:

     "Incidental" has much the same meaning as "accessory" and
     "subordinate" and is used to convey the idea of a thing
     being subordinate to, dependent on, and pertaining to
     another thing which is the principal one.  Lowry v. City of
     Mankato, 42 N.W.2d 553, 556, 559, 231 Minn. 108.

     In Kantor v. U.S., D.C. Tex., 154 F. Supp. 58, 61, 62, the
court quoted the definition from 42 C.J.S. 520:
     
     Incidental.   An adjective which has reference to something
     which is subordinate to, and dependent on, and follows the
     existence of another and principal thing, ... incident to
     the main purpose of the main business... 

     The facts in this case clearly do not support a
determination that the domestic carriage is directly incidental
to the international carriage.  Pursuant to 19 CFR 123.14(c)(1),
the international carriage must be regularly scheduled (as stated
supra, there is no evidence that the international trip is
regularly scheduled) and the domestic carriage must be directly
incidental to the international carriage.  Ruling 111556 stated
that "the domestic movement of merchandise must be secondary to
the international movement..."  (Emphasis supplied.)  

     The facts here indicate that the domestic carriage is
regularly scheduled, and that it is far from incidental.  To the
contrary of being incidental, the ruling request states:
"Trucker's failure to adhere to this schedule would jeopardize
its business relationship with Star [its client] which requires
regular, reliable outshipment service to comply with local law,
retain its waste processing permits and preserve its access to
the Chateaugay incinerator...Each party must keep the schedule."  

     Using some of the language from the definitions of
incidental, supra, the domestic carriage is not subordinate to
the international carriage, nor is it casual, chance, fortuitous,
contingent, nonessential, or without intention or calculation. 
The domestic carriage appears to be the "main purpose of the main
business."  Kantor v. U.S., supra.  

     The domestic carriage is essential to its business
relationship with Star Recycling.  It must occur within a
specific two hour time frame twice a week, i.e., between 8:00
a.m. and 10:00 a.m. every Wednesday and Friday.  The focus of the
total trip appears to be the domestic movement from Brooklyn to
Chateaugay, rather than the international movement of the wood
chips and hay from Montreal to Long Island.  As stated supra,
there is no evidence that the international carriage is regularly
scheduled.  Further, there is no indication that the
international carriage is of more commercial importance to the
Trucker than the domestic carriage. 

     Based upon all of these facts, we conclude that the domestic
carriage is not incidental.  

     Thus, the domestic carriage is not directly incidental to
the international carriage.

     In Ruling 112164 dated April 6, 1992, Customs held that in
order to move domestic cargo between two points without being in
violation of the international traffic exception, the domestic
movement must follow the same basic route as the merchandise
moving in international traffic.  That concept was also applied
in Ruling 111556 dated April 16, 1991, where Customs held that
points not on the direct route were not within the exception of
19 CFR 123.14(c)(1).  In Ruling 111556, Customs held that points
off of the direct route, even though those points would not
exceed a 35-mile deviation from the direct route, were outside of
the exception of 19 CFR 123.14(c)(1).  Here, Chateaugay is
likewise a departure from the direct route back to Montreal, and
the proposed domestic movement would not be incidental to the
international movement based on the plain meaning of the
regulation on purely geographical grounds.











HOLDING:

     Vehicles may not engage in the above-described traffic
without the entry and payment of duty pursuant to 19 CFR
10.41(d).  The vehicles do not come within the exception for
local traffic in 19 CFR 123.14(c)(1).  There is no evidence that
the international traffic is regularly scheduled.  The domestic
traffic is not directly incidental to the international traffic. 
The domestic carriage does not follow the same basic route as the
merchandise moving in international traffic.



                              Sincerely,



                              Director,
                              International Trade Compliance
Division