HQ 112913: Instruments of International Traffic; Canadian-based Trucks; Local Traffic; Regular Schedule; 19 U.S.C. 1322

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 112913

                         December 3, 1993

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

CATEGORY:  Carriers

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.


                              - 2 -

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
123.14(a), (b), and (c)(1)).

     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.  
                              - 3 -

     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
                                   Chief
                              Carrier Rulings Branch