The

pu

rpos

e of

th

is b

roch

ure

is

to c

lari

fy t

he p

rope

r de

clar

atio

n

of “

priv

ate”

vs.

“co

mm

erci

al”

stat

us o

f ai

rcra

ft a

nd a

ircr

aft

oper

ator

s at

tim

e of

inb

ound

Cus

tom

s an

d B

orde

r Pr

otec

tion

(CBP

) cl

eara

nce.

1300

Pen

nsy

lvan

ia A

venu

e, N

WW

ash

ingt

on, D

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0229

1-80

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Plea

se v

isit

the

U.S

. Cu

stom

s an

d B

orde

r Pr

otec

tion

Web

sit

e at

ww

w.c

bp.g

ov

CB

P Pu

blic

atio

n N

o. 0

000-

0622

Oct

ober

200

3

Air

craf

t St

atus

D

ecla

rati

onIn

form

atio

n fo

r All

Pilo

ts

and

Ope

rato

rs o

f Airc

raft

Tran

spor

ting

Pass

enge

rs

and/

or C

argo

(In

clud

ing

Mai

l)

“C

omm

ercial Aircraft” are defined by U

.S. C

ustoms regulations as aircraft “tran

sporting passengers and/or cargo for som

e payment

or other consideration

, including m

oney or services rendered.” 19 C

.F.R. § 122.1(d). A

“C

omm

ercial Aircraft” also includes any aircraft

which is not carrying passengers and/or cargo

at the time of its inbound C

BP clearance, but w

hich, nonetheless, left the U.S. w

ith passengers and/or cargo transported to a foreign area for “com

mercial purposes.”

“Private A

ircraft” are defined as aircraft w

hich are not carrying passengers and/or cargo for “com

mercial purposes” (that is, for

payment or other consideration). 19 C

.F.R. §

122.1(h)(1). “Private Aircraft” also m

ay include returning aircraft w

hich are not carrying passengers and/or cargo and did not leave the U

.S. with passengers and/or cargo carried for

“comm

ercial purposes.” 19 C.F.R

. § 122.1(h)(3).

C

onsistent with the above definitions, a

“comm

ercial aircraft” departing the U.S.

carrying passengers and/or cargo (including processed and unprocessed m

ail) for payment

(that is, for a “comm

ercial purpose”) MA

Y N

OT

be declared by the pilot or aircraft operator as a “private aircraft” upon its return to the U

.S.

In determ

ining whether an aircraft is “private”

or “comm

ercial” for CBP clearance purposes,

pilots and/or aircraft operators must ask

themselves the follow

ing:

1. H

as any form of paym

ent or other consideration been supplied (or agreed to be supplied), directly or indirectly, to the pilot and/or aircraft operator by any passenger, any non

-passenger third-party, or any business (i.e. a hotel, resort, casino, travel agency, charter broker, etc.) not

directly connected with the actual operation,

ownership or navigation of the aircraft (or

the operator’s air transport business)?

Indirect third party paym

ents include pay-m

ents provided to a pilot and/or aircraft operator by a hotel, resort, casino, travel agent, charter broker, etc. for the service of transporting its guests or custom

ers, regard-less of w

hether such payments are m

ade:

(a) on a non-scheduled per flight basis,

(b) in accordance with a so

-called “private carriage” contract betw

een such a business and the pilot and/or operator, or

(c) through any other means.

2. W

as such payment provided (or agreed to

be provided) as consideration for the service of transporting any passenger(s) and/or item

of cargo, including cargo consisting of processed or unprocessed m

ail or other item

s transported via an air courier service agreem

ent?

If the an

swer to both

of the above inquiries is

in the affirm

ative, then the aircraft conducting

the flight mu

st be declared as a “comm

ercial” aircraft conducting a flight for “com

mercial

purposes” as set forth

in 19 C

.F.R. §

§ 122.1(d).

C

onsistent with the above definitions, a pilot

and/or operator of a “comm

ercial aircraft” M

AY N

OT truthfully file a Private A

ircraft Enforcem

ent System (“PA

ES”) Report (C

ustoms

Form 178), w

ithout notifying CBP personnel

of the true comm

ercial nature and purpose of the flight. Subm

ission of a false PAES R

eport under these circum

stances will constitute

a criminal offense if done know

ingly and w

illfully. Moreover, it w

ould amount to a

potential criminal false statem

ent for any pilot

or other flight crew m

ember of such an aircraft

to affirmatively set forth that the purpose of

his/her travel was “personal” upon any C

BP declaration (C

ustoms Form

6059B) that is filed by the pilot along w

ith such a PAES R

eport.

Pilots and aircraft operators should be aw

are that FA

A regu

lations and publication

s do not d

ictate whether a particu

lar aircraft or flight operation

is “private” or “comm

ercial” for CB

P pu

rposes. For example, the alleged distinctions

made by the Federal A

ir Regulations betw

een “private” and “com

mon” carriage operations,

as well as issues pertaining to w

hether or not an aircraft operator is “holding out” to the public, or is engaged in leasing, “w

et-leasing,” or operating pursuant to a so

-called “private carriage” agreem

ent is irrelevant in determining

whether an aircraft is “private” or “com

mercial”

within the m

eaning of the Custom

s regulations.

It is the duty of the pilot and/or aircraft operator seeking C

BP clearance to properly ascertain w

hether an aircraft presented to CBP

is “comm

ercial” within the m

eaning of the above-m

entioned regulations. As stated earlier,

this determination m

ust be made independent

of any contrary interpretation of the terms

“private” or “comm

ercial” arising from the

Federal Air R

egulations or addressed by the FAA

in any of its publications or circulars.

A

ll comm

erical aircraft are subject to applicable fees and subm

ission of electronic manifests as

provided for by regulations.

Please visit the CBP w

eb site for an explanation of clearance procedures for aircraft being operated in a com

mercial capacity, including requirem

ents for posting C

ustoms bonds and for providing advance

passenger and cargo manifests.