August 2005-
In the wake of 9/11 and the massive government reorganization that followed, it was inevitable that some government agencies would have different rules and guidelines for defining specific operations than others.
As pilots, we are all very familiar with the FAA and the rules it publishes by which we operate our aircraft. But other government agencies don’t necessarily share the FAA’s definitions. Specifically, I am speaking about U.S. Customs and Border Protection, or CBP.
Now if you never fly out of the United States, it may not matter to you. But if you occasionally venture beyond our nation’s borders to places like Mexico, Canada and the Bahamas, then you need to pay attention.
Subsequent to 9/11, all commercial operators have had to deal with revised Customs and Immigration procedures, including the use of an Advanced Passenger Information System called APIS, as well as the collection of special taxes for Department of Agriculture, Immigration and Naturalization, and International Facilities Fees. To be fair, these taxes and fees existed before 9/11 but have increased since then to pay for the higher level of enforcement.
Additionally, commercial operators need to notify customs of a departure from the U.S. one hour before actual departure and obtain an outbound rotation number from the nearest CBP facility to the departure.
I know what you are thinking: “I am a private, Part 91 operation and these issues don’t affect me.” Well, actually, they may.
CBP has published a brochure called “Aircraft Status Declaration,” which defines what CBP considers a commercial operation. It states clearly that the view of CBP is different than that of the FAA, and FAA regulations do not dictate whether a flight is considered commercial or private for CBP purposes.
It defines a commercial operation as any flight transporting passengers and or cargo for some payment or other consideration, including money or services rendered. It also states that a flight not carrying passengers or cargo at the time of its inbound CBP clearance but that left the U.S. doing so is still considered a commercial operation.
It goes on to say that any aircraft leaving the U.S. carrying passengers/cargo, processed or unprocessed mail, for payment of any kind may not be declared by the pilot as non-commercial. To determine if your flight could be considered commercial according to CBP, ask yourself this question: “Has any form of payment or other consideration been supplied or agreed to be supplied directly or indirectly to the pilot by any passenger, any non-passenger third party or any business?” According to the CBP, indirect third party payments to the pilot or the aircraft operator will also cause a flight to be considered commercial.
They conclude by saying that the pilot may not truthfully file a private aircraft enforcement system report or claim that their travel was personal. The carefully-worded paragraph essentially puts the responsibility on the pilot for the actions of the passengers or the owner (if not the pilot).
The CBP uses a pretty broad brush in painting the possible scenarios that are considered commercial. If you rent an aircraft from a flight school or flying club, that school or club is being compensated for the use of the aircraft. If you are a pilot being paid to fly an aircraft, then you are being compensated for the flight. In some instances, I have heard of Administrative Law judges considering flight time as compensation.
This is a national security issue. The penalty for not filing an APIS is substantial—up to $5,000 per instance.
Additionally, for you to operate legally, you would need to have an appropriate customs bond. There are dozens of little known regulations that can bite you. Carrying unopened processed or unprocessed mail is one of them. The catchall phrase in the brochure (CBP publication no. 0000-0622) is that a pilot may not truthfully file a PAES (Private Aircraft Enforcement System) report if the flight could be considered commercial.
By not being truthful, in affect they are implying that you are lying, or as the brochure words it, making a “criminal false statement” to CBP and that has got to come with its own set of consequences.
CBP urges you to go to their web site, www.cbp.gov, for explanations of clearance procedures for commercial operations. Be advised from personal experience that each customs office does things a little differently, and you will need to talk to a supervisor at the office you intend to use to verify any specific local procedures. Be sure to get that supervisor’s name or initials for later reference.
I am willing to make a prediction here. The CBP has just put up an e-APIS website which went on line in early June. This is supposed to make it easier for operators to file. I suspect it will entirely replace the current DOS based APIS system that the commercial operators have been using for years. I predict that it is only a matter of time until both private and commercial flights will be required to utilize APIS.
After reading this if you feel your private flying activities sound suspiciously like they could be considered a commercial operation by CBP, then I suggest you get a copy of CBP publication no. 0000-0622 then go to their website.
Michael Leighton is a 3,500 + CFII MEI/ATP as well as an A&P mechanic and former FAA Accident Prevention Counselor. He operates an air charter company in South Florida.
