AIR-4-01:OT:RR:BSTC:CCR H203159 ALS
Mr. Karl F. Krueger
Radix Group International d/b/a
DHL Global Forwarding
2660 20th Street
Port Huron, Michigan 48060
RE: Aircraft; Entry and Clearance; 19 CFR Part 122; 19 U.S.C. § 1446; 22 U.S.C. § 2278; International Traffic in Arms Regulations; 22 CFR 120 et. seq.
Dear Mr. Krueger:
This letter is in response to your request of January 15, 2012, with respect to the aircraft entry requirements for an aircraft equipped with defense equipment subject to the requirements of the Arms Export Control Act. Our ruling is set forth below.
FACTS:
Your inquiry concerns an aircraft that is equipped with various surveying equipment that is used to conduct mapping and geological surveys in various countries. The surveying equipment is installed onto the aircraft itself, and is subject to the requirements of the Arms Export Control Act and International Traffic in Arms Regulations. En route to conduct surveying missions in South America or Central America, the aircraft would take off from Canada and would stop in the United States to refuel. The surveying equipment would remain onboard during refueling. The aircraft would not be transporting any passengers or commercial cargo. You specifically ask whether the aircraft, as equipped with items subject to the Arms Export Control Act and International Traffic in Arms Regulations, is subject to aircraft entry requirements.
ISSUE:
Whether the subject aircraft is subject to aircraft entry requirements as equipped with items subject to the Arms Export Control Act and International Traffic in Arms Regulations.
LAW AND ANALYSIS:
Generally, all aircraft coming into the United States from a foreign area must make entry under 19 CFR Part 122, Subpart E. Exceptions are provided for public and private aircraft, civilian-crewed aircraft chartered by the U.S. Department of Defense (DOD) to transport only cargo that is the property of DOD, and aircraft traveling from airport to airport in the United States under 19 CFR Part 122, Subpart I, which covers procedures for residue cargo and stopover passengers. See 19 CFR 122.41.
The term “aircraft” is defined as “any device now known, or hereafter invented, used or designed for navigation or flight in the air.” See 19 CFR 122.1(a). “Private aircraft” is defined in pertinent part as “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” and is “leaving the U.S. carrying neither passengers nor cargo in order to lade passengers and/or cargo in a foreign area for commercial purposes.” See 19 CFR 122.1(h)(1) and (2). Pursuant to 19 CFR 122.26, private aircraft are not required to formally enter, but are required to have manifest data for each individual onboard and departure information submitted to CBP no later than 60 minutes prior to departure. As noted above, you state that the aircraft at issue would not be transporting passengers or commercial cargo.
Pursuant to 19 CFR 122.47(d), 19 U.S.C. § 1446 is applicable to aircraft arriving in the United States from any foreign area. See also CBP Ruling HQ 116505 (September 21, 2005). Section 1446 provides that any vessel arriving from a foreign port may retain onboard, without payment or duty, the legitimate equipment of the vessel. Pursuant to 22 U.S.C. § 2278 (Section 38 of the Arms Export Control Act), the President has the authority to control the export and import of defense articles and defense services. Authority to promulgate regulations pursuant to that authority has been delegated to the Department of State (DOS). See Executive Order 11958 (January 18, 1977).
Pursuant to DOS’ International Traffic in Arms Regulations (ITAR), “temporary import” is defined as “bringing into the United States from a foreign country any defense article that is to be returned to the country from which it was shipped or taken, or any defense article that is in transit to another country.” See 22 CFR 120.18. You acknowledge that the surveying equipment at issue is subject to ITAR requirements for licensing upon temporary importation into the United States. You also acknowledge that articles subject to ITAR licensing requirements generally require an entry and export declaration to be filed. An export declaration is required even for articles that might require an ITAR license but for an exemption. See 22 CFR 123.16(a).
We find nothing in the ITAR regulations that would exempt an aircraft equipped with articles subject to ITAR requirements from being entered. The remaining question is whether CBP regulations would exempt such an aircraft, even if the aircraft might otherwise be deemed a private aircraft, as might be the case here. CBP Regulations do not exempt aircraft equipped with articles that require an ITAR license from entry.
HOLDING:
Aircraft equipped with articles that are subject to the Arms Export Control Act and International Traffic in Arms Regulations are not exempt from the aircraft entry requirements of 19 CFR Part 122, notwithstanding any other exemption that might otherwise apply.
Sincerely,
George Frederick McCray
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Restricted Merchandise Branch
Office of International Trade, Regulations & Rulings
U.S. Customs and Border Protection