AIR-4-RR:BSTC:CCI H057399 CK
Mr. Robbie Brady
Flight Dispatch Manager
Dubai Air Wing
P.O. Box 11097, Dubai
United Arab Emirates
RE: Private Aircraft; Advanced Electronic Transmission of Cargo Information; 19 CFR §122.48a
Dear Mr. Brady:
This is in response to your ruling request dated April 6, 2009, which you supplemented by email on June 21, 2009. You request a ruling that exempts Dubai Air Wing aircraft from having to transmit advanced cargo information through Air Automated Manifest System (‘Air AMS”). Our ruling on this matter follows.
FACTS:
Dubai Air Wing is the aircraft operator of the Dubai Royal Family. You state that all your aircraft are privately owned by the Royal Family of Dubai, United Arab Emirates and you are a section which is government funded in order to manage and maintain this fleet of aircraft.
You state that the flights are not used for revenue purposes, do not offer charter services, and are used exclusively for the family’s private use.
Dubai Air Wing also has three cargo aircraft that are used to transport cargo of the Dubai Royal Family, and these aircraft occasionally arrive in the United States. You state that cargo consists of their privately owned racehorses. You also state that in addition to those animals you transport their compliment of one veterinary surgeon and approximately 10 grooms to take care of the animals during the flight. You also indicate that the fleet will be acquiring one new aircraft that will be for passengers, but have cargo capacity.
ISSUE:
Is the above-described aircraft exempt from the advanced electronic transmission 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.
Thus the flight of the “aircraft” will determine the requirements it will be subjected to, and the treatment it will receive from CBP upon arrival.
In the facts you put forth, aircraft arriving in the U.S. carrying the royal family and their baggage would qualify as a “private aircraft” pursuant to 19 CFR §122.1(h) and an advance electronic transmission of cargo information would not be required. However, you have also stated that the fleet contains three cargo planes that carry the “cargo” of the royal family. You state that the cargo consists of race horses that belong to the Royal Family, owners of the aircraft. Further, you state that the planes will also be carrying a veterinarian and grooms for the animals. Based on the facts that the race horses belong to the owners of the aircraft and are not carried for commercial purposes, and the veterinarian and the grooms travel as part of the retinue of the owners rather than as paying passengers, the cargo flights at issue fall within the definition of “private aircraft” as per 19 CFR §122.1(h) and the transmission of advanced cargo information pursuant to 19 CFR §122.48a is not required.
HOLDING:
The above-described aircraft are exempt from the advanced electronic transmission of cargo information required by 19 CFR §122.48.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch