HQ 116095 - Private Aircraft; Advanced Electronic Presentation of Cargo Information; 19 CFR §122.48a - United States International Trade Commision Rulings

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HQ 116095

January 28, 2004

AIR-4-RR:IT:EC 116095 CK

CATEGORY: CARRIER

John J. Amico
Import/Export Supervisor
Dassault Falcon Jet Corp.
Teteboro Airport
Box 2000
South Hackensack, NJ 07606

RE: Private Aircraft; Advanced Electronic Presentation of Cargo Information; 19 CFR §122.48a

Dear Mr. Amico:

This is in response to your ruling request, with photographs, dated December 12, 2003, as amended by your letter dated January 12, 2004. You request a ruling exempting Dassault Falcon Jet Corp. (“DFJ”) from the required advanced electronic presentation of cargo information for Falcon model business jet aircraft imported into the U.S. Our ruling on this matter follows.

FACTS:

Dassault Falcon Jet Corp. (“DFJ”) is a subsidiary of Dassault Aviation. DFJ’s primary business is the sale, service, completion, and support of Falcon business jets manufactured by Dassault Aviation. DFJ imports several models of Falcon business jet aircraft from Dassault Aviation. DFJ also imports aircraft spare parts, components, and accessories from Dassault Aviation as well as from other unrelated foreign suppliers.

In addition, DFJ maintains an inventory of spare parts, components, and accessories at its warehouse at Teterboro Airport in New Jersey and at Adams Field in Little Rock, Arkansas. These parts are used to support the operation of aircraft owned by DFJ’s civil and government customers.

DFJ acts as its own importer/Customs broker for entry of Falcon model business jet aircraft and commercially shipped parts into the U.S.

Falcon aircraft are manufactured at Dassault Aviation’s facility in France. When exported from France, they are flown under their own power to the U.S. These aircraft are described as “green” aircraft, which means that at the time of importation into the U.S. there are no interior furnishings or exterior paint on the aircraft.

Completion of these aircraft in the U.S. typically includes installation of additional avionics equipment, headliners, sidewalls, seats, entertainment centers, other furnishings, and exterior paint. The specific completion items are based on the customer’s requirements. This completion function is performed in Little Rock, Arkansas. Occasionally, DFJ also imports completed Falcon aircraft, but the same U.S. Customs and Border Protection (CBP) procedures are followed for all aircraft imports.

The aircraft are most often imported either directly into Little Rock or Teterboro from France. Occasionally, DFJ imports aircraft into New Castle Airport in Wilmington, Delaware at DFJ-Wilmington Corp. However, this is a separate entity and a Customs broker is used to import aircraft at this facility.

DFJ usually employs its own U.S. licensed pilots to ferry the aircraft. Occasionally, Dassault Aviation’s French licensed pilots may be utilized to supplement U.S. licensed crews. The DFJ Flight Operations Dept. in Teterboro Airport schedules the crew and coordinates the exportation of the aircraft from France and subsequent importation by DFJ’s Import Dept. at Teterboro and Little Rock.

DFJ’s Import Dept. in Teterboro and Little Rock are notified via email and/or fax memo of the scheduled importation of the aircraft approximately one week prior to the aircraft’s arrival. At that time, the Import Dept. is advised of the exact location the aircraft will be imported, i.e., Teterboro, Little Rock, or Wilmington.

DFJ’s Import Dept. receives a copy of the aircraft’s invoice and a cargo manifest at least one day prior to actual importation into the U.S. DFJ Flight Operations notifies the CBP Inspector at the airport of arrival one day prior to actual importation. As required, the information provided to the inspector includes the aircraft registration number (tail number) serial number, type of aircraft, crew names, nationality, and passport information. Since there are no interior furnishings, the aircraft cannot accommodate passengers.

The CBP Inspector is made aware that the aircraft is not carrying commercial cargo but is itself considered “cargo” and the entry summary package is prepared, which includes: entry/immediate delivery form (CF 3461); carrier’s certificate; aircraft invoice; and aircraft manifest. The entry summary package is submitted to CBP after the aircraft departs France (“wheels up”). The entry submission occurs at least four hours prior to the aircraft’s arrival in the U.S.

For aircraft imported into Little Rock, the entry summary is in paper form and hand delivered to the CBP inspector at the airport.

For aircraft imported into Teterboro, DFJ electronically transmits the entry summary to CBP via the Automated Broker Interface (ABI). Additionally, a paper copy is carried to CBP’s Centralized Air Cargo Examination Facility at Newark Liberty International Airport in New Jersey for document review and release. DFJ personnel then take the signed, released CF 3461 to the CBP Inspector at Teterboro who meets the aircraft upon arrival.

The entry summary (CF 7501), including all supporting documents and duty payments, is timely submitted. Because civil aircraft are duty-free, only the merchandise processing fee (MPF) is paid.

ISSUE:

Is the above-described aircraft exempt from the advanced electronic presentation of cargo information required by 19 CFR §122.48a?

LAW AND ANALYSIS:

Section 343(a) of the Trade Act of 2002 (Pub. L. 107-210, 116 Stat. 933, enacted on August 8, 2002), as amended by section 108 of the Maritime Transportation Security Act of 2002 (Pub. L. 107-295, 116 Stat. 2064, enacted on November 25, 2002), required that the Secretary endeavor to promulgate final regulations providing for the mandatory collection of electronic cargo information by CBP, either prior to the arrival of the cargo in the United States or its departure from the United States by any mode of commercial transportation (sea, air, rail or truck). Under section 343(a), as amended (codified at 19 U.S.C. 2071 note), the information required must consist of that information about the cargo which is determined to be reasonably necessary to enable CBP to identify high-risk shipments so as to ensure cargo safety and security and prevent smuggling pursuant to the laws that are enforced and administered by CBP.

Consequently, in accordance with the parameters set forth in section 343(a), as amended, a document was published in the Federal Register (68 FR 43574) on July 23, 2003, proposing to amend the Customs Regulations in order to require the advance electronic transmission of information pertaining to cargo prior to its being brought into, or sent from, the United states by sea, air rail or truck. The Final Rule amending Customs Regulations in parts 4, 103, 122, 123, 178, and 192 were published as CBP Dec. 03-32 in the Federal Register (68 FR 68140) on December 5, 2003.

The applicable Customs Regulation, 19 CFR §122.48a, states in pertinent part:

General requirement. Pursuant to section 343(a), Trade Act of 2002, as amended (19 U.S.C. 2071 note), and subject to paragraph (e) of this section, for any inbound aircraft required to enter under §122.41, that will have commercial cargo aboard, Customs and Border Protection (CBP) must electronically receive from the inbound air carrier and, if applicable, an approved party as specified in paragraph (c)(1) of this section, certain information concerning the incoming cargo, as enumerated, respectively, in paragraphs (d)(1) and (d)(2) of this section. The CBP must receive such information no later than the time frame prescribed in paragraph (b) of this section. The advance electronic transmission of the required cargo information to CBP must be effected through a CBP-approved electronic data interchange system.

Section 122.41 of the Customs Regulations referenced above, (19 CFR §122.41) states in pertinent part:

All aircraft coming into the U.S. from a foreign area shall make entry under subpart E except:

Public and private aircraft;

Types of aircraft for CBP purposes of administering the Air Commerce Regulations (19 CFR Part 122) are defined in Subpart A of Part 122 of the Customs Regulations. Section 122.1 of the Customs Regulations (19 CFR §122.1) sets out the general definitions. Section 122.1(h) defines “ private aircraft” as follows:

A ‘private aircraft’ is any aircraft engaged in a personal or business flight to or from the U.S. which is not:

Carrying passengers and/or cargo for commercial purposes; Leaving the U.S. carrying neither passengers nor cargo in order to lade passengers and/or cargo in a foreign area for commercial purposes; or Returning to the U.S. carrying neither passengers nor cargo in ballast after leaving with passengers and/or cargo for commercial purposes.

In this case, DFJ imports aircraft described as “green” aircraft. These aircraft at the time of importation into the U.S. do no have interior furnishings or exterior paint on the aircraft. Photographs illustrating the unfinished aircraft were submitted with this ruling request. The aircraft cannot accommodate passengers, and DFJ affirmatively states no passengers are carried aboard the aircraft. Additionally, these aircraft do not have commercial cargo aboard, rather, DFJ asserts that it imports and enters the aircraft itself as cargo.

Assuming that no passengers, spare parts, components, accessories, or other commercial cargo are carried in the “green” aircraft at the time of importation, said aircraft would qualify as a “private aircraft” pursuant to 19 CFR §122.1(h). “Private aircraft” are exempt from making formal entry pursuant to 19 CFR §122.41(a). Aircraft exempt from making formal entry upon arrival in the U.S. are not subject to the advance electronic transmission of the required cargo information to CBP as required by 19 CFR §122.48a.

HOLDING:

The above-described aircraft, while in its “green” state, is exempt from the advanced electronic presentation of cargo information required by 19 CFR §122.48a.

Sincerely,

Glen E. Vereb

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