BOR-7-04-CO:R:IT:C 112809 GEV

Rebecca A. Raleigh
Fredrikson & Byron, P.A.
1100 International Centre
900 Second Avenue South
Minneapolis, Minnesota 55402-3397

RE: Instruments of International Traffic; Base of Operations; U.S. registration; 19 U.S.C. 1322

Dear Ms. Raleigh:

This is in response to your letter dated July 16, 1993, requesting a ruling regarding the titling of Canadian vehicles in the United States. Our ruling on this matter is set forth below.

FACTS:

A U.S. corporation purchases Canadian-manufactured trucks in Canada where they are kept and from where they are dispatched for use in the shipment of merchandise between Canada and the United States. Although the trucks are used primarily in international traffic, the U.S. corporate owner is exploring the possibility of their being used in local traffic in Canada and/or the United States. To that extent it is proposed to register the vehicles in the United States.

ISSUE:

Whether U.S-owned and registered trucks that are kept in and dispatched out of Canada are considered to have their "principal base of operations in a foreign country" within the meaning of 19 CFR  123.14(a).

LAW AND ANALYSIS:

Section 141.4, Customs Regulations (19 CFR 141.4), provides that entry as required by title 19, United States Code,  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. In the event a vehicle is considered to

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be foreign-based it is 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), and is therefore 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)).

Customs' determination as to a vehicle's base of operations is based on the evidence in each case. If an operator has the demonstrated intention to establish his vehicle's base of operations in and operate out of a certain location, and presents sufficient evidence to support this intention, Customs will generally determine that point to be his vehicle's base of operations. In this regard it should be noted that Customs has held that absent evidence to the contrary, a U.S. corporation which leases, controls, and registers a Canadian-manufactured tractor trailer in the United States, creates a rebuttable presumption that the trailer is based in the United States (Customs Ruling 110785 GV, dated October 12, 1990).

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.

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 -

Whether the use of an instrument of international traffic constitutes a diversion from international traffic is based on the facts of 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.

In regard to the facts under consideration, we note at the outset that the titling of a vehicle is merely one of several criterion Customs considers in determining a vehicle's base of operations and consequently whether it is considered to come within the purview of  123.14, Customs Regulations. The fact that the trucks in issue would be U.S.-owned and registered creates a presumption that they are based in the United States. However, the fact that they are primarily kept in and dispatched out of Canada effectively rebuts that presumption. As such, they are considered to have their "principal base of operations in a foreign country" within the meaning of  123.14(a), Customs Regulations, and may operate in international traffic and local U.S. traffic in accordance with the provisions of  123.14(a) and (c), respectively. Parenthetically, we note that the use of these vehicles in local Canadian traffic would be considered to be a diversion from any international traffic in which they may be engaged and would render effective the entry and duty requirements discussed above.

We reiterate that mere titling of a Canadian-based vehicle in the United States, without more, does not in and of itself constitute an importation upon which duties would be imposed pursuant to the HTSUS. The rationale behind this determination is based on the judicial construction of the term "importation" ("...the bringing of goods within the jurisdictional limits of the United States with the intention to unlade them." see Treasury Decisions (T.D.'s) 42052 at 314, and 47632 at 601, and cases cited therein) and Customs treatment of foreign yachts brought into the United States during a shakedown cruise and for obtaining repairs (see Astral Corp. v. United States, 72 Cust.Ct. 245, C.D. 4536 (1974) wherein the court held that such a yacht was not imported for purposes of assessing duty because it was not brought "permanently" into the United States). Accordingly, absent a diversion from international traffic to unauthorized local traffic (either in the U.S. or in Canada) as discussed above, or evidence indicating an intent by the owner to bring the subject vehicles into the United States on a permanent basis, registering them in the United States would not render operative the imposition of duty. - 4 -

HOLDING:

U.S.-owned and registered trucks that are kept in and dispatched out of Canada are considered to have their "principal base of operations in a foreign country" within the meaning of 19 CFR  123.14(a) and may engage in international traffic and local traffic without the requirement of entry and payment of duty provided they operate in accordance with the provisions of 19 CFR  123.14(a) and (c).

Notwithstanding the provisions of 19 CFR  123.14 discussed above, and absent evidence to the contrary, the titling of U.S.-owned, Canadian-based trucks in the United States does not, in and of itself, constitute an importation upon which duty would be imposed pursuant to the HTSUS.

Sincerely,

Acting Chief
Carrier Rulings Branch