HQ 116363 - Private Aircraft; Advance Electronic Presentation of Cargo Information; 19 CFR § 122.48a - United States International Trade Commision Rulings

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HQ 116363

December 16, 2004

AIR-4-RR:IT:EC 116363 IDL

CATEGORY: CARRIER

Cathy Forsyth
Vice President
Goderich Aircraft, Inc.
P.O. Box 554
Hangar #2, Canada Drive
Huron Park, ON N0M 1Y0

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

Dear Ms. Forsyth:

This is in response to your letter, dated November 26, 2004, concerning your request for an exemption from the required advance electronic presentation of cargo information for certain U.S. aircraft serviced by Goderich Aircraft, Inc. Our ruling on this matter follows.

FACTS:

Goderich Aircraft, Inc. (“Goderich”), of South Western Ontario, is a Canadian-registered corporation, unaffiliated with any United States company. Goderich is engaged in the business of aircraft maintenance, repair, and refurbishment, including part or all of any of the following: exterior stripping, painting and detailing, interior reupholstering, carpeting, cabinet [sic], and paneling and avionics.

Goderich services U.S.-registered private or corporate business aircraft. The aircraft are flown by a crew employed by the registered owner, or the owner him/herself. Goderich in no way controls the flight operation(s) of any of these aircraft. At no time is ownership of the aircraft transferred to Goderich, nor are the business entities of the U.S. customer and Goderich related parties. The aircraft arrive in Canada duty-free as a temporary import for repair, pursuant to the North American Free Trade Agreement (NAFTA). All servicing of the aircraft is duty-free.

After repair or refurbishment, the U.S.-aircraft depart Canada for the United States. Goderich utilizes the broker services of Fed Ex Trade Networks, up to six times per month, to make entry in Port Huron, Michigan. Goderich provides an invoice detailing the scope of work that was completed, and Fed Ex Trade Networks files all necessary documents on behalf of Goderich.

ISSUE:

Whether the above-described aircraft are exempt from the advance 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 U.S. Customs and Border Protection (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 CBP 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 CBP 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 CBP 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 CBP 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 CBP Regulations. Section 122.1 of the CBP 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.

Accordingly, assuming that no passengers, spare parts, components, accessories, or other commercial cargo are carried in the aircraft described when departing Canada for the United States, 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:

Under the conditions set forth, the above-described aircraft are exempt from the advance electronic presentation of cargo information required by 19 CFR § 122.48a.

Sincerely,

Glen E. Vereb
Chief

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