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HQ 111213


September 25, 1990

BOR-7-04-CO:R:P:C 111213 GV

CATEGORY: CARRIER

J. R. Brandt
Chief Inspector
U.S. Customs Service
Post Office Box 280
Pacific Highway Station
Blaine, Washington 98230

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

Dear Mr. Brandt:

This is in response to your memorandum dated July 25, 1990, regarding the use of a Canadian-based concrete pumping truck in the United States. Our ruling is set forth below.

FACTS:

A U.S. citizen residing in Ferndale, Washington, is the owner of a concrete pumping service based in Richmond, British Columbia, Canada, with a branch office in Ferndale, Washington. In February of 1990 he filed a consumption entry, and imported his U.S.-manufactured, Canadian-based, concrete pumping truck into the United States in order to be able to use it in local traffic in the United States. He has licensed it in both jurisdictions, and insured it to show that 40% of its use will be in the United States and 60% of its use will be in Canada. The vast majority of the truck's use is within close proximity to, and requires frequent crossings of, the U.S.-Canadian border, although it is not carrying merchandise when it crosses the border.

ISSUE:

Whether a U.S.-manufactured, Canadian-based, concrete pumping truck, imported into the United States (i.e., formally entered at a duty-free rate pursuant to the HTSUSA) and intended for use in local traffic in the United States and Canada in close proximity to the U.S.-Canadian border may thereafter be entered without formal entry or the payment of applicable duty pursuant to 19 CFR 123.15.

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 truck in question is not within the definition of intangibles as shown in General Note 4, Harmonized Tariff Schedule of the United States Annotated (HTSUSA; 19 U.S.C. 1202, as amended), it is subject to entry and payment of any applicable duty if not specifically exempted by law and regulations.

Section 123.15, Customs Regulations (19 CFR 123.15) provides that vehicles of foreign origin which are used for commercial purposes between adjoining communities of the United States and Canada are subject to duty on first arrival, but may thereafter be admitted without formal entry or the payment of duty so long as they are continuously employed in such service.

In regard to the facts under consideration, the subject concrete pumping truck was entered into the United States duty- free pursuant to the HTSUSA and is to be used primarily in areas within close proximity to the U.S.-Canadian border. In view of the fact that we have not been provided with a specific geographic area in which this truck will operate, we are unable to issue a definitive ruling as to whether it would be "...used between adjoining or neighboring communities of the United States and Canada..." It would appear, however, that the operation of the truck within close proximity to the U.S.-Canadian border would come within the purview of 19 CFR 123.15 and it may thereafter be admitted without formal entry or the payment of applicable duty so long as it is continuously employed in such service.

It should be noted, however, that formal entry and payment of applicable duty would again be required should the truck at any time be used in an area not considered to be "...between adjoining or neighboring communities of the United States and Canada..."

HOLDING:

A U.S.-manufactured, Canadian-based, concrete pumping truck, imported into the United States (i.e., formally entered at a duty-free rate pursuant to the HTSUSA) and used in close proximity to the U.S.-Canadian border may thereafter be admitted
without formal entry or the payment of duty pursuant to 19 CFR 123.15, provided it is used only for commercial purposes between adjoining or neighboring communities of the United States and Canada, and is continuously employed in such service.

Sincerely,

B. James Fritz

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