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HQ 116207





May 24, 2004

AIR-4-RR:IT:EC 116207 CK

CATEGORY: CARRIER

Ralf Bode, LtCol.
Chief, Traffic and Transportation Division German Armed Forces Command US/CA
23745 Autopilot Drive
Washington-Dulles Intl. Airport
Dulles, VA 20166

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

Dear LtCol. Bode:

This is in response to your ruling request dated April 15, 2004. You request a ruling exempting the Transportation Division for the U.S. and Canada of the German Ministry of Defense (German Armed Forces Command US/CA) from the required advanced electronic presentation of cargo information regulations. Our ruling is set forth below.

FACTS:

The Traffic and Transportation Division of the German Armed Forces Command US/CA receives material owned by the German government (German Ministry of Defense) on aircraft owned or leased by the German Air Force, and subsequently forwards the material within the U.S. or to Canada. The material is destined to private and U.S. government depots for repair, modification or overhaul, before it is returned to Germany. The material may also be forwarded to German military installations (e.g., Holloman AFB, NM, or Fort Bliss, Tx) and joint exercise areas within the U.S.

The aircraft are at all times under the complete control of members of the German Air Force or, when leased, allied NATO partners. The aircraft leased by the German Air Force are also military aircraft, and when they are utilized they are also under the complete control of those NATO members’ respective military forces at all times.

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. (Emphasis added)

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(i) defines “ public aircraft” as follows:

A ‘public aircraft’ is any aircraft owned by, or under the complete control and management of the U.S. government or any of its agencies, or any aircraft owned by or under the complete control and management of any foreign government which exempts public aircraft of the U.S. from arrival, entry and clearance requirements similar to those provided in subpart C of this part, but not including any government owned aircraft engaged in carrying persons or property for commercial purposes. This definition applies if the aircraft is:

Manned entirely by members of the armed forces or civil services of such government, or by both; Transporting only property of such government, or passengers traveling on official business of such government; or Carrying neither passengers nor cargo.

In this case, it is the German government that is the owner of the subject cargo, and it is either the German Air Force or, when leased, allied NATO partners that are the carriers of the cargo. Therefore, with respect to aircraft owned by the German Air Force, under section 122.1(i)(1) and (2) such aircraft qualify as public aircraft so long as the German government exempts public aircraft of the U.S. from arrival, entry and clearance requirements. “Public 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.

The same conclusion is reached in regard to the aircraft leased for delivery purposes to the U.S. by the German Air Force from militaries of NATO members, since the aircraft are under the complete control of foreign military personnel, the merchandise belongs to the German government, and so long as that foreign government also exempts public aircraft of the U.S. from arrival, entry and clearance requirements. Thus, assuming the NATO members meet the above requirements, the leased aircraft would also be exempt from making entry upon arrival in the U.S, nor would they be 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, which are “public aircraft” in view of the fact that they are flown by the German Air Force or by the militaries of NATO members leased by the German Air Force, and carrying cargo for the German Ministry of Defense, and provided Germany and the NATO countries exempt public aircraft of the U.S. from arrival, entry and clearance requirements, are exempt from the advanced electronic presentation of cargo information required by 19 CFR §122.48a.

Sincerely,

Glen E. Vereb

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