Title 19—Customs Duties--Volume 1
PART 122—AIR COMMERCE REGULATIONS
§ 122.92   Procedure at port of origin.
(a) Forms required —(1) Customs Form 7512 or other document. Customs Form 7512 or other Customs approved documents, such as an air waybill (see paragraph (a)(3) of this section), shall be used for both entry and manifest. Three copies of the form or other document are required to be filed with Customs at the port of origin for merchandise for immediate transportation without appraisement. Four copies of the form or other document are required when merchandise for transportation and exportation is entered. (See also, §§ 18.11 and 18.20(a) of this chapter). Each copy shall be signed by the carrier or its authorized agent.
(2) Air Waybill. An air waybill may be used for both entry and manifest. Three copies of the air waybill are required unless the port director deems additional copies necessary. Photocopies of the original air waybill are acceptable. Either preprinted stock air waybills or electronically generated air waybills may be used. The air waybill must:
(i) Contain the information required of a universal air waybill as recognized and accepted by the International Air Transport Association (IATA), be legible and in the English language;
(ii) Display a unique 11-digit number, the first three digits being the air carrier's identification code;
(iii) Display the number of packages based on the smallest external packaging unit ( e.g., 14 packages is acceptable, 1 pallet is unacceptable);
(iv) Display the name of the final port of destination in the U.S. or the name of the ultimate country of destination of the cargo indicated by available air carrier shipping documents. The ultimate destination must be shown even though the air transportation may be scheduled to terminate in a country prior to the cargo's final destination;
(v) Be modified to contain the following information which should appear in a block or attachment in the upper right-hand corner as in this example. The numbers 1-8 correspond to the descriptions that follow; the numbers do not have to appear on the AWB:
The item numbers correspond to the following information:
Item 1—Origin— The numeric port code as listed in Schedule D of the Harmonized Tariff Schedules of the United States, or the port where the in-bond entry is presented.
Item 2—Entry type— The appropriate in-bond code number such as I.T./61 for Immediate Transportation, T&E/62 for Transportation and Exportation, and I.E./63 for Immediate Exportation.
Item 3—Destination— The numeric port code for the intended port of destination for entry or exportation.
Item 4—Importing Carrier/Flight Number/Arrival Date— This information serves to identify the shipment in terms of the inward foreign manifest of the importing carrier. The “Arrival Date” is the date of arrival of the importing conveyance in the U.S. The information must be supplied in all instances.
Item 5—Bonded Carrier/Exporter— The bonded carrier or exporter who will be liable for the proper movement, handling, and safekeeping of the merchandise once the in-bond movement is authorized by Customs. If this information is not supplied, the in-bond movement will be carried out under the bond of the importing carrier. (See Item 7 for further information on transfer of liability.)
Item 6—Date— The date of the in-bond entry preparation. Since an in-bond entry can be prepared before the date of entry presentation and/or acceptance, and prior to the actual arrival of the importing conveyance, this date should only be used for duty assessment purposes when the date in Item 8 is left blank. If a date is not present, the date of in-bond preparation will be deemed to be the date of arrival.
Item 7—Signature of Carrier's Agent (or Exporter)— This signature of the authorized agent of the bonded carrier or exporter identified previously (See Item 5) constitutes acceptance of the liability for the in-bond shipment by the party signing. A signature is required except when the in-bond movement is under the bond of the importing carrier. If unsigned, the submission to Customs of an AWB requesting such a movement is evidence of the acceptance of liability if the AWB is approved by Customs.
Item 8—Customs Officer/Date— Signature of the Customs officer who authorizes the initiation of the in-bond movement and the date of such authorization. Customs will check to make sure merchandise is released only to a bonded carrier. The date is used to start the time limit for completion of the in-bond movement and for consumption entry purposes in accord with § 141.69(b) of this chapter. Customs authorization procedures which use a perforation device are acceptable in lieu of the appropriate Customs signature. The port director will determine whether a signature will be required in this block prior to the time that the cargo is allowed to move.
(b) Delivery of Customs form to carrier —(1) Merchandise entered for immediate transportation without appraisement. When merchandise is entered for immediate transportation without appraisement, two copies of Customs Form 7512 or other Customs approved document shall be delivered to the carrier.
(2) Merchandise entered for transportation and exportation. When merchandise is entered for transportation and exportation, one copy of Customs For 7512 and any other Customs approved document shall be delivered to the carrier.
(3) After delivery. After delivery, the forms or other document shall accompany the merchandise to the port of destination or exportation.
(c) Receipt and supervision. The agent of a bonded air carrier shall give a receipt for any merchandise delivered to it for transportation in bond, and no supervision of the lading of the merchandise on the transporting aircraft shall be required.
(d) Split shipment —(1) Departure within 24 hours. Merchandise covered by a single entry and manifest (Customs Form 7512 or other Customs approved document) may be sent to the destination airport on one or more aircraft. A separate manifest for each aircraft is not required if the whole shipment is sent within a single 24-hour period.
(2) Departure not within 24 hours. If any part of a shipment is sent more than 24 hours after the first part was sent, the entry and manifest copy which accompanies the first shipment shall state that the rest of the shipment will follow by separate aircraft. A single manifest shall be prepared for each part of the shipment sent by separate aircraft. The manifest shall be used as notice of each arrival at the destination airport.
(e) Transhipment. Merchandise sent under bond may be transferred at an intermediate airport to one or more aircraft of the same airline. This may be done without Customs supervision and notice of the transfer is not required. If merchandise covered by one entry and manifest is transferred to more than one aircraft, paragraph (d) of this section applies.
(f) Sealing not required. The sealing of aircraft, aircraft compartments carrying bonded merchandise, or the cording and sealing of bonded packages carried by the aircraft, is not required.
(g) Warning labels. The carrier shall supply and attach the warning label, as described in § 18.4(b)(3) of this chapter, to each bonded package.
§ 122.93   Procedure at destination or exportation airport.
(a) Delivery to port director. When a bonded shipment arrives at the destination or exportation airport, the aircraft commander or agent shall deliver one copy of the entry and manifest (Customs Form 7512 or other Customs approved document) covering the shipment to the port director of that airport as notice of arrival. If the shipment was sent by separate aircraft more than 24 hours after the first part of the shipment was sent, then a manifest for each part of the shipment shall be delivered to the port director.
(b) Delivery to consignee. When the merchandise is sent under an entry for immediate transportation without appraisal, one copy of the manifest covering the merchandise shall be delivered by the carrier to the consignee. This copy is used to make entry, and may also be used as a carrier certificate as provided in § 141.11(a)(4) of this chapter.
§ 122.94   Certificate of lading for exportation.
(a) Required filing. This section applies to merchandise entered for transportation and exportation by aircraft. A certificate of lading for exportation and a Customs Form 7512 or other Customs approved document (see § 122.93 of this subpart) shall be filed when the merchandise reaches the final departure airport. The form shall be filled out and signed at the place where aircraft clearance for the merchandise is given.
(b) Clearance not at place of final departure. If an aircraft is cleared at a place other than the place of final departure from the U.S., the aircraft commander or its authorized agent shall:
(1) Promptly report arrival of any bonded merchandise for export to the Customs officer in charge at that place; and
(2) Submit to the Customs officer in charge the certificate received at the place the merchandise was taken on board. The clearance certificate is kept by the Customs officer in charge until departure.
§ 122.95   Other provisions.
Part 18 of this chapter (Transportation in Bond and Merchandise in Transit) applies to the transportation of merchandise under this subpart unless stated otherwise.
§ 122.101   Entry of accompanied baggage.
Passengers who enter the U.S. on one aircraft and depart to a foreign area on another aircraft with accompanying baggage shall either:
(a) Submit their baggage to Customs for inspection; or
(b) Arrange with the importing carrier for the baggage to be processed under regular in-transit procedures.
§ 122.102   Inspection of baggage in transit.
(a) General baggage in transit may be inspected upon arrival, while in transit, and upon exportation. Carriers shall present in-transit baggage for inspection at any time found necessary by the port director.
(b) In-transit baggage shall be presented to a Customs officer for inspection and clearance before the baggage can be delivered to a passenger while in the U.S.
§ 122.111   Application.
Cargo (including manifested baggage) which arrives and is transported under Customs control in, through, or from, the U.S. may be transported in bond under this subpart. If cargo is not transported under this subpart, it shall be transported under other provisions of this chapter. (See subparts I and J of this part, and parts 18 and 123 of this chapter.)
§ 122.112   Definitions.
The following definitions apply in this subpart:
(a) Transit air cargo. “Transit air cargo” is cargo, including manifested baggage, transported under the requirements of this subpart.
(b) Port of arrival. The “port of arrival” is the port in the U.S. where imported cargo must be documented for further transportation under this subpart.
(c) Transfer or transferred. “Transfer or transferred” means the change of documentation of cargo to transit air cargo for transportation. The terms also include the physical movement of the cargo from one carrier to another, and thereafter by air or surface movement to the port of destination.
(d) Transit air cargo manifest. “Transit air cargo manifest” is used in this subpart as the shortened title for the transportation entry and transit air cargo manifest.
§ 122.113   Form for transit air cargo manifest procedures.
A manifest on Customs Form 7509 is required for transit air cargo, as provided in § 122.48(c) of this part. The words “Transportation Entry and Transit Air Cargo Manifest” shall be printed, stamped or marked on the form and on all copies of the form required for transit air cargo movement.
§ 122.114   Contents.
(a) Form duplicates original manifest. Each transit air cargo manifest shall be a duplicate of the sheet presented as part of the cargo manifest for the aircraft on which the cargo arrived in the U.S.
(b) Shipments shown on manifest —(1) Country of exportation. Each transit air cargo manifest sheet may list:
(i) Only air cargo shipments from one exporting country, with the name of the country shown in the heading; or
(ii) Air cargo shipments from several exporting countries, with the name of the exporting country shown in the “Nature of Goods” column.
(2) Shipment to same port. Each transit air manifest sheet may list only those shipments manifested by way of the port of arrival for:
(i) The same Customs port of destination;
(ii) The same Customs port for later exportation; or
(iii) Direct exportation from the port of arrival.
(c) Information required. Each air cargo manifest sheet shall show:
(1) The foreign port of lading;
(2) The date the aircraft arrived at the port of arrival;
(3) Each U.S. port where Customs services will be necessary due to transit air cargo procedures; and
(4) The final port of destination in the U.S., or the foreign country of destination, for each shipment. The foreign country destination shown on the manifest must be the final destination, as shown by airline shipping documents, even though airline transport may be scheduled to end before the shipment arrives at the final destination.
(d) Corrections. If corrections in the route shown on the original manifest for the cargo are required at the port of arrival to make a manifest sheet workable as a transit air cargo manifest, the director of the port of arrival may allow the corrections.
§ 122.115   Labeling of cargo.
A warning label, as required by § 18.4(e) of this chapter, shall be attached to all transit air cargo not directly exported from the port of arrival before the cargo leaves the port of arrival.
§ 122.116   Identification of manifest sheets.
When the original cargo manifest for the aircraft on which the cargo arrives is presented by the aircraft commander or its authorized agent at the port of arrival, a manifest number will be given to the aircraft entry documents by Customs. The number given shall be used by the airline to identify all copies of the transit air cargo manifest. All copies of the manifest shall be correctly numbered before cargo will be released from the port of arrival as transit air cargo.
§ 122.117   Requirements for transit air cargo transport.
(a) Transportation —(1) Port to port. Transit air cargo may be carried to another port only when a receipt is given, as provided in paragraph (b) of this section. The receipt may be given only to an airline which:
(i) Is a common carrier for the transportation of bonded merchandise; and
(ii) Has the required Customs bond on file.
(2) Exportation from port of arrival. Transit air cargo may be exported from the port of arrival only if covered by a bond on Customs Form 301, containing the bond conditions set forth in subpart G of part 113 of this chapter, as provided in § 18.25 of this chapter.
(b) Receipt —(1) Requirements. When air cargo is to move from the port of arrival as transit air cargo, a receipt shall be given. The receipt shall be made by the airline responsible for transport or export within the general order period (see § 122.50).
(2) Contents. The receipt shall appear on each copy of the transit air cargo manifest, clearly signed and dated if required, in the following form:
Received the cargo listed herein for delivery to Customs at the port of destination or exportation shown above, or for direct exportation.
(c) Responsibility for transit air cargo —(1) Direct exportation. The responsibility of the airline exporting transit air cargo for direct exportation begins when a receipt, as provided in paragraph (b) of this section, is presented to Customs.
(2) Other than direct exportation. When the transit air cargo is not for direct exportation, the responsibility of the airline receiving the cargo begins when a receipt, as provided in paragraph (b) of this section, is presented to Customs.
(3) Carting. When carting is used to deliver transit air cargo to receiving airlines, the importing airline is responsible for the cargo under its own bond until a receipt is filed by the receiving airline. This does not apply when the carting is done under part 112 of this chapter, at the expense of the parties involved.
(4) Importing airlines. An importing airline which has qualified as a carrier of bonded merchandise, whether registered in the U.S. or a foreign area, may:
(i) Give a receipt for the air cargo;
(ii) File an appropriate bond; and
(iii) Deliver the cargo to an authorized domestic carrier for in-bond transportation from the port of arrival. The importing carrier's bond covers the transportation.
(d) Split shipments. A receipt shall be given by one airline for all of the cargo shipments listed on one transit air cargo manifest sheet. Cargo shipments so listed shall be transported from the port of arrival on one aircraft or carrier unless the use of more than one aircraft or carrier would be allowed:
(1) By § 122.92(d) under a single combined entry and manifest;
(2) By § 122.118(d); or
(3) By § 122.119(e), permitting the use of a surface carrier for transport.
§ 122.118   Exportation from port of arrival.
(a) Application. Transit air cargo may be transferred for exportation from any port of arrival under this section. The port director may require any supervision necessary to enforce the regulations of other Federal agencies.
(b) Time. Transit air cargo must be exported from the port of arrival within 15 days from the date the exporting airline receives the cargo. After the 15-day period, the individual cargo shipments must be made the subject of individual entries, as appropriate.
(c) Transit air cargo manifest copies. Three copies of the transit air cargo manifest shall be filed with Customs.
(1) Review copy. The importing airline shall file a copy of each transit air cargo manifest sheet covering any cargo shipment that will be transferred for direct exportation. This filing shall be made as soon as the exporting airline has been chosen. The exporting airline need not give receipt on the review copy for the cargo to be transferred, but the name of the exporting airline shall be placed on the copy.
(2) Exportation copy. The exportation copy shall be filed by the exporting airline when clearance documents are presented to Customs.
(3) Clearance copy. The clearance copy shall be filed with the exporting aircraft's clearance documents.
(d) Direct export on different aircraft. Transit air cargo shipments which are listed on one aircraft transit air cargo manifest sheet may be directly exported on different aircraft of the exporting airline. If this occurs, two additional copies of the transit air cargo manifest shall be filed for each shipment or group of shipments transported in other aircraft. Each copy of the transit air cargo manifest shall be clearly marked to show which shipment or shipments listed are covered by the manifest copy.
(e) Direct export by another airline. If shipments listed on one transit air cargo manifest sheet are not exported from the same port on the same airline, separate export entries on Customs Form 7512, as required by § 18.25 of this chapter, shall be filed.
(f) Post entered air cargo. Air cargo not listed on the manifest (i.e., overages) which has been post entered under § 122.49(b) may be exported from the port of origin under this subpart. If this occurs, four copies of the air cargo manifest, Customs Form 7509, marked “Post Entry”, shall be provided. All requirements of § 122.44(b) shall be followed in using this procedure.
(g) Review. The review copy of the transit air cargo manifest sheets must be reviewed by Customs as required for the carrier manifest copy in § 122.120(g). The reviewing officer shall take the proper action if a license is necessary for any cargo. The exporting airline shall be notified that any transit air cargo which is not covered by the required license must be placed under constructive Customs custody in a special area of the airline's terminal until the license is obtained.
§ 122.119   Transportation to another U.S. port.
(a) Application. Air cargo shipments may be transferred for transportation as transit air cargo from the port of arrival to another port in the U.S. under this section. The director of the port of arrival may require Customs supervision of the transfer.
(b) Time. Transit air cargo traveling to a final port of destination in the U.S. shall be delivered to Customs at its destination within 30 days from the date the receiving airline gives the receipt for the cargo at the port of arrival.
(c) Transit air cargo manifest copies. Four copies of the transit air cargo manifest, including a carrier manifest copy, shall be filed by the airline giving a receipt for moving the cargo shipments to their destination. The permit copy is used and kept by Customs at the port of arrival.
(d) Failure to deliver on time —(1) Procedure. If transit air cargo does not arrive at the destination port on time, the director of the port of arrival shall take action as provided in §§ 18.6 and 18.8 of this chapter. The amount of duty and tax shall be decided at the port of arrival on the basis of information:
(i) On the permit copy kept at the port of arrival; and
(ii) Obtained from the carriers as necessary.
(2) Responsibility of airline. When the airline that presented a receipt for the cargo receives notice of discrepancies, the airline shall answer within 90 days of the date of such notice to the director of the port of arrival. The answer shall provide any information or documents related to the value and description of the cargo involved that the receipting airline and the importing airline can produce.
(e) Surface movement to port of destination. If an aircraft arrives at the port of arrival with cargo to be carried as transit air cargo, the cargo may be transferred to another carrier for surface movement to the port of destination. The transfer is allowed under the following conditions:
(1) The bond of the party receiving the cargo for surface movement must cover the transfer and surface movement;
(2) The description of the cargo on the transit air cargo manifest must be complete;
(3) The entire shipment listed in the transit air cargo manifest must be shipped from the port of arrival to the port of destination by the same surface carrier; and
(4) The requirements of § 122.114(b) must be followed.
§ 122.120   Transportation to another port for exportation.
(a) Application. Air cargo may be transferred as transit air cargo at the port of arrival for transportation to another port in the U.S. and later exportation under this section.
(b) Supervision —(1) From port of arrival to exportation port. The director of the port of arrival shall order any supervision found necessary for the transfer of transit air cargo for transportation to another port for export.
(2) At exportation port. Customs shall be notified far enough in advance to be able to make any required supervision of the lading of cargo, and to enforce any other Federal agency requirements, when transit air cargo is ready for lading on the exporting aircraft.
(c) Time. Transit air cargo covered by this section shall be delivered to CBP at the port of exportation within 30 days from the date of receipt by the forwarding airline.
(d) Transit air cargo manifest copies. Five copies of the transit air cargo manifest shall be filed with Customs.
(1) Port of arrival. Two copies of the transit air cargo manifest, marked separately as “permit” and “control” copies, shall be filed with Customs at the port of arrival. Filing shall be made when the arriving aircraft enters, or before the general order period ends, by the airline which presents a receipt to transport the cargo from the port of arrival to the port of destination.
(2) Port of exportation. Three copies of the transit air cargo manifest shall be filed at the port of exportation.
(i) Carrier manifest copy. The carrier manifest copy shall be attached to the listing of cargo shipments and submitted when the cargo arrives at the exportation port.
(ii) Exportation and clearance copies. Two copies, marked separately as “exportation” and “clearance” copies, shall be filed with Customs at the exportation port.
(e) Delivery to exporting airline. When the transit air cargo arrives at the exportation port, it may be delivered directly to the exporting carrier, together with the exportation and clearance copies. The name of the exporting carrier shall be clearly noted on the carrier manifest copy, which shall then be delivered to Customs.
(f) Storage by exporting airline. The exporting carrier shall keep all cargo listed on the transit air cargo manifest in one storage space. This storage space shall be separate from the area in which special shipments which require a license under paragraph (g) of this section are stored.
(g) Export license —(1) Review. A Customs officer shall review the carrier manifest copy of the transit air cargo manifest to make sure that the export licensing requirements of other Federal agencies have been followed.
(2) Information inadequate. If the manifest information is not enough for Customs to determine that a license or other requirement applies, then the transit air cargo shall be checked by examination, or by inspection of the air waybills or attached invoices.
(3) When license or other requirement applies. The exporting airline shall be notified at once if Customs finds that the shipment cannot be exported without a license or other approval. The shipment shall then be put under constructive Customs custody in a special area set aside for the shipment in the exporting airline's cargo terminal.
(h) Filing of exportation and clearance copies —(1) Information. When filed with Customs, the exportation and clearance copies of the transit air cargo manifest shall each show:
(i) The aircraft number;
(ii) The aircraft flight number; and
(iii) The date.
(2) Filing. The exporting airline shall file the exportation and clearance copies before the aircraft that carries the transit air cargo departs. The clearance copies shall be grouped together and not mixed in with other outward manifest sheets. The exportation copies shall be grouped together, and kept separate from the outward clearance documents.
(i) Cargo not laden at same airport by same airline. If all the cargo listed on one transit air cargo manifest sheet is not laden for exportation from the same U.S. airport by the same airline, then separate entries on Customs Form 7512 are required for each cargo shipment listed:
(1) For transportation and exportation under subpart J of this part; or
(2) For direct exportation under § 18.25 of this chapter.
(j) Cargo laden on more than one aircraft of same airline. When any cargo shipment listed on the same transit air cargo manifest must be exported on more than one aircraft of the same airline, § 122.118(d) applies.
(k) Failure to deliver. If all or part of the cargo listed on the transit air cargo manifest is not accounted for with an exportation copy within 45 days, the director of the port of arrival shall take action as provided in § 122.119(d).
§ 122.131   Application.
(a) Liquor and tobacco. Subpart M applies to:
(1) Duty-free and tax-free liquor and tobacco; and
(2) Duty-paid and tax-paid liquor and tobacco which has been placed in the same liquor kit as duty-free and tax-free liquor and tobacco.
(b) Aircraft. Subpart M applies to all commercial aircraft on domestic or foreign flights operating into, from and between U.S. airports, which are carrying:
(1) Duty-free and tax-free liquor and tobacco withdrawn from bond under section 309, Tariff Act of 1930, as amended (19 U.S.C. 1309); or
(2) Other liquor or tobacco on which duty or taxes have not been paid.
§ 122.132   Sealing of aircraft liquor kits.
(a) Sealing required. Aircraft liquor kits shall be sealed on board the aircraft by crewmembers before the aircraft lands in the U.S. The liquor kits shall be kept under seal while on the ground unless taken to an authorized airline in-bond liquor storeroom.
(b) Exception. When an aircraft is traveling between airports in the U.S., in a trade for which duty-free and tax-free liquor is used during flight, sealing the liquor kits on board during transporting stopovers is not required if:
(1) The liquor kits are kept on board the aircraft; and
(2) The port director finds that sealing is not required for revenue protection.
(c) Seals to be used. Aircraft liquor kits shall be sealed with serially numbered, Customs approved seals. The airline shall use seals supplied by an approved manufacturer, as provided in part 24 of this chapter. A small number of seals may be obtained from the port director.
(d) Removing seals. When sealed liquor kits are on the ground, the Customs seals may be broken only by:
(1) A Customs officer; or
(2) Authorized airline personnel, in an authorized airline in-bond liquor storeroom.
(e) Resealing. When a Customs officer breaks the seal of a liquor kit to check the contents, the action shall be recorded on the liquor kit stores list, and the liquor kit must be resealed with an approved seal.
§ 122.133   Stores list required on arrival.
(a) When required, contents. Three copies of an incoming stores list shall be prepared for each liquor kit on board before an aircraft lands. The incoming stores list shall state for each type of liquor and bottle size:
(1) Number of full bottles;
(2) Number of partially filled bottles; and
(3) Total number of bottles.
(b) Disposition of stores list copies. One copy of the incoming stores list shall be placed in the liquor kit before it is sealed. The remaining two copies shall be used as follows:
(1) One copy shall be filed with the inward cargo manifest; and
(2) One copy shall be kept for filing with the outward cargo manifest if the liquor kit was laden for export.
(c) For aircraft not required to enter and/or clear. If an aircraft is not required to enter and/or clear:
(1) One copy shall be given to the Customs officer upon arrival; and
(2) One copy shall be kept to be given to the Customs officer before departure of the aircraft.
(d) When stores list not prepared. When a complete stores list is not prepared before landing, liquor kits must be sealed on board, and the seal number shall be recorded on the stores list. When the aircraft lands, the liquor shall be taken at once to the Customs office and the stores list shall be completed by crew members under Customs supervision.
§ 122.134   When airline does not have in-bond liquor storeroom.
(a) Handling of liquor kits. An aircraft may land at an airport where the airline involved does not have an authorized in-bond liquor storeroom. When this occurs, the liquor kits, under any supervision found necessary by the port director, may be:
(1) Kept on board the aircraft;
(2) Removed and replaced upon the aircraft; or
(3) Removed and replaced aboard another aircraft.
(b) Sealing of kits. Aircraft liquor kits covered by this section shall remain sealed until departure. Customs officers may remove the seal to check the contents of the liquor kits, but shall reseal the kits as provided in § 122.132(e).
(c) Restocking. Additional amounts of duty-free and tax-free liquor and tobacco obtained in the U.S. shall be laden in a separate container on any aircraft covered by this section. The lading shall be done under any supervision the port director finds necessary. The additional liquor and tobacco shall be shown on separate outward stores lists.
§ 122.135   When airline has in-bond liquor storeroom.
(a) Restocking. Liquor kits on board an aircraft landing at an airport where the airline involved has an authorized in-bond liquor storeroom may be removed and restocked in the storeroom.
(b) Inventory record. Each authorized airline in-bond liquor storeroom shall keep an inventory record in a form that satisfies the port director. The inventory record shall account for the receipt and use of all aircraft liquor and tobacco stores on which duty and/or tax has not been paid.
(c) Airline employees. Any airline which has an authorized in-bond liquor store room at an airport shall give the port director:
(1) A list of names of all airline employees authorized to break Customs seals on liquor kits in the in-bond liquor storeroom; and
(2) Signature samples of the authorized employees.
(d) Opening of aircraft liquor kits. Aircraft liquor kits received in an authorized storeroom shall be opened only by authorized airline employees, or by Customs officers.
(e) Contents of liquor kits. The employees who break the seals on aircraft liquor kits shall check the contents at once. The employees shall immediately report to the port director any:
(1) Evidence of seal tampering;
(2) Difference between the seal numbers on the liquor kits and those recorded on the stores list; and
(3) Differences in quantity as shown on the stores list.
(f) Handling the liquor kits —(1) Partial bottles. Partial bottles of liquor may be removed from incoming liquor kits and kept in the in-bond liquor storeroom to be destroyed or combined with other partial bottles. This may be done only under Customs supervision. The costs of Customs supervision shall be paid by the airline.
(2) Exportation. The contents of incoming liquor kits may be commingled to restock outbound liquor kits. The commingling must take place in the airline in-bond liquor storeroom, using liquor bottles on which the seal has not been broken.
(3) Sealing. All liquor kits shall be sealed as provided in § 122.132(a) before removal from the in-bond liquor storeroom. All seal numbers shall be listed on an outgoing stores list.
§ 122.136   Outgoing stores list.
(a) Preparation. Two copies of a serially numbered outgoing stores list shall be prepared by the airline for all liquor and tobacco withdrawn from bonded or non-tax-paid stock and added to liquor kits. The outgoing stores list shall show the total number of bottles for each type liquor, the brand, and the size of each bottle.
(b) Use of copies. The two copies of the outgoing stores list shall be used as follows:
(1) One copy shall be placed and kept in the outgoing kits until the aircraft leaves the U.S.; and
(2) One copy must be filed either with the outgoing cargo manifest (for aircraft required to clear) or with Customs before departing, as provided in § 122.133(c).
§ 122.137   Certificate of use.
Any liquor or tobacco withdrawn from the in-bond storeroom and shown on the outgoing stores list shall be recorded, when exported, on a certificate of use prepared by the airline.
§ 122.141   Definitions.
Under subpart N, the following definitions apply:
(a) United States. The term “U.S.” includes the several States, the District of Columbia and Puerto Rico.
(b) Foreign area. The term “foreign area” means any area other than the several States, the District of Columbia and Puerto Rico.
§ 122.142   Flights between the U.S. Virgin Islands and a foreign area.
(a) Aircraft arriving in the U.S. Virgin Islands. Aircraft arriving in the U.S. Virgin Islands from a place other than the U.S. are governed by the provisions of this part which apply to aircraft arriving in the U.S. from a foreign area.
(b) Aircraft leaving the U.S. Virgin Islands. Aircraft leaving the U.S. Virgin Islands for a place other than the U.S. are governed by the provisions of this part that apply to aircraft leaving the U.S. for a foreign area.
§ 122.143   Flights from the U.S. to the U.S. Virgin Islands.
(a) In general. Aircraft on flights from the U.S. to the U.S. Virgin Islands are governed by the provisions of this part that apply to aircraft on a flight within the U.S.
(b) Census Bureau. When Census Bureau's Foreign Trade Regulations (15 CFR part 30) apply to aircraft carrying merchandise to the U.S. Virgin Islands from the U.S., permission to depart must be obtained from the port director. Permission to depart will not be given unless:
(1) A complete manifest and Electronic Export Information (EEI) as required by 15 CFR part 30 are filed; or
(2) An incomplete manifest under 15 CFR 30.47 is filed and the complete manifest and EEI is filed within 7 business days after departure.
§ 122.144   Flights from the U.S. Virgin Islands to the U.S.
(a) Aircraft not inspected. This paragraph applies to aircraft departing from the U.S. Virgin Islands and arriving in the U.S., without having been inspected prior to departure.
(1) On departure. Aircraft leaving the U.S. Virgin Islands for the U.S. are governed by the provisions of this part that apply to aircraft leaving the U.S. for a foreign area.
(2) On arrival. Aircraft departing from the U.S. Virgin Islands and arriving in the U.S. are governed by the provisions of this part that apply to aircraft arriving in the U.S. from a foreign area.
(b) Supervision. When aircraft are inspected by Customs in the U.S. Virgin Islands, the port director may order any supervision found necessary to protect the revenue and enforce the laws administered by Customs. This includes the collection of duty and taxes on articles bought in the U.S. Virgin Islands.
(c) Procedure. When an aircraft that was inspected in the U.S. Virgin Islands arrives in the U.S. from the U.S. Virgin Islands, the aircraft commander must be able to give evidence of the inspection to Customs on request. Evidence of the inspection shall be given in the following manner:
(1) A certificate on Customs Form 7507 shall be presented for aircraft registered in the U.S.:
(i) Of domestic origin; or
(ii) Of foreign origin, if duty has been paid and the aircraft is proceeding carrying neither passengers nor cargo, or with cargo and/or passengers solely from the U.S. Virgin Islands.
(2) A permit to proceed on Customs Form 7507 shall be presented for aircraft registered in the U.S. which are:
(i) Of foreign origin;
(ii) Not duty paid; and
(iii) Proceeding carrying neither passengers nor cargo.
(3) A permit to proceed on Customs Form 7507 shall be presented for aircraft registered in a foreign country and proceeding carrying neither passengers nor cargo. The permit to proceed, as required under subpart F of this part, shall be marked with the port and date of inspection, and shall be signed by the inspecting officer in the U.S. Virgin Islands.
(4) A permit to proceed, or other document, shall be filed as required under subpart I of this part for an aircraft carrying residue cargo and/or passengers. The permit to proceed shall be marked with the port and date of inspection, and it must be signed by the inspecting officer in the U.S. Virgin Islands.
§ 122.161   In general.
Except as provided in subpart S of this part, any person who violates any Customs requirements stated in this part, or any regulation that applies to aircraft under § 122.2, is, in addition to any other applicable penalty, subject to civil penalty of $5,000 as provided by 19 U.S.C. 1644 and 1644a, except for overages, and failure to manifest narcotics or marihuana, in which cases the penalties set forth in section 584, Tariff Act of 1930, as amended (19 U.S.C. 1584) apply, or for failure to report arrival or to present the documents required by § 122.27(c) of this part in which cases the penalties set forth in section 436, Tariff Act of 1930, as amended (19 U.S.C. 1436) apply, and any aircraft used in connection with any such violation shall be subject to seizure and forfeiture, as provided for in the Customs laws. A penalty or forfeiture may be mitigated under part 171 of this chapter.
§ 122.162   Failure to notify and explain differences in air cargo manifest.
(a) Application. Penalties shall be assessed if differences in an air cargo manifest (overages or shortages) are discovered and:
(1) The required notice and explanation are not made in time;
(2) The port director is not satisfied that the differences were caused by clerical error or other mistake;
(3) There has been a loss of revenue to the U.S.; or
(4) The port director is not satisfied that there was a valid reason for delay in reporting any differences.
(b) Definition. Under this section, “clerical error or other mistake” means a non-negligent, inadvertant, or typographical mistake in the preparation, assembly, or submission (electronically or otherwise) of the manifest.
(c) Repeated differences. If repeated differences are found in manifests filed by the same person, it may be determined that the differences were a result of negligence and not clerical error or other mistake.
(d) Knowledge. A penalty may be assessed for differences in a manifest that are unknown to the aircraft commander or owner.
§ 122.163   Transit air cargo traveling to U.S. ports.
(a) Application. If transit air cargo is traveling from the port of arrival to another U.S. port under § 122.119, a liability shall be assessed, as set out in § 18.8 of this chapter if there has been:
(1) Shortage in delivery;
(2) Irregular delivery; or
(3) Non-delivery.
(b) Liabilities assessed. The liabilities assessed under this section are imposed as liquidated damages under a carrier's bond.
(c) Value of merchandise. The port director shall determine the value of merchandise for assessment purposes based on the following factors:
(1) Any data or documents available to the airline which presented a receipt for the transit air cargo, and available to the importing airline relating to the description and value of the cargo; and
(2) Other information available to the port director relating to the same or similar merchandise. If the data or documents required by this section are not submitted within 90 days of the date requested, the port director shall determine value on the basis of other available information. The transit air cargo manifest does not reflect value.
§ 122.164   Transportation to another port for exportation.
If transit air cargo is traveling from the port of arrival to another U.S. port for later exportation, any liquidated damages for shortages or irregular delivery shall be assessed as provided in § 122.163.
§ 122.165   Air cabotage.
(a) The air cabotage law (49 U.S.C. 41703) prohibits the transportation of persons, property, or mail for compensation or hire between points of the U.S. in a foreign civil aircraft. The term “foreign civil aircraft” includes all aircraft that are not of U.S. registration except those foreign-registered aircraft leased or chartered to a U.S. air carrier and operated under the authority of regulations issued by the Department of Transportation, as provided for in 14 CFR 121.153, and those aircraft used exclusively in the service of any government.
(b) Customs officers detecting possible violations shall report the matter to Headquarters, Attention: Entry Procedures and Carriers Branch. Liability should not be assessed under 49 U.S.C. Chapter 463 pending instructions from Headquarters since certain limited domestic transportation by foreign civil aircraft is permitted under regulations issued by the Department of Transportation.
§ 122.166   Arrival, departure, discharge, and documentation.
(a) Liability for civil penalties. Except as otherwise provided, any aircraft pilot violation of the requirements of section 433, Tariff Act of 1930, as amended, (19 U.S.C. 1433), with respect to the following actions shall be liable for civil penalties as provided by section 436, Tariff Act of 1930, as amended (19 U.S.C. 1436), and described in paragraph (c) of this section:
(1) Advance notification of arrival;
(2) Report of arrival;
(3) Landing of aircraft;
(4) Presentation of documentation;
(5) Departure from the port, place, or airport of arrival without authorization; or
(6) Discharge of passenger, or merchandise (to include baggage) without authorization.
(b) Liability for criminal penalties. Upon conviction, any aircraft pilot violating any of the Customs requirements described in paragraph (a) of this section shall, in addition to civil penalties be subject to criminal penalties as set forth in section 436, Tariff Act of 1930, as amended, (19 U.S.C. 1436), and described in paragraph (c) of this section. If the aircraft has or is discovered to have had on board any merchandise (other than the equivalent, for a vessel, of sea stores) the importation of which into the U.S. is prohibited, that person shall be subject to an additional fine as set forth in 19 U.S.C. 1436 and described in paragraph (c) of this section.
(c) Civil and criminal penalties described —(1) Civil penalty. The pilot of any aircraft who fails to comply with the requirements of this section is liable for a civil penalty of $5,000 for the first violation, and $10,000 for each subsequent violation. Any aircraft used in connection with any such violation is subject to seizure and forfeiture.
(2) Criminal penalty. In addition to the civil penalty prescribed for violation of this section, the pilot of any aircraft who intentionally fails to comply with the requirements of this section is liable, upon conviction, for a fine of not more than $2,000 or imprisonment for 1 year, or both. If the aircraft is found to have, or to have had, on board any merchandise the importation of which is prohibited, such individual is liable for an additional fine of not more than $10,000 or imprisonment for not more than 5 years, or both.
(3) Additional civil penalty. If any merchandise, other than the equivalent of vessel sea stores, is imported or brought into the U.S. aboard an aircraft which has failed to comply with the requirements prescribed by this section, the pilot of the aircraft shall be liable for a civil penalty equal to the value of the merchandise, and the merchandise may be seized and forfeited, unless properly entered by the importer or consignee.
§ 122.167   Aviation smuggling.
(a) Civil penalties. Any aircraft pilot who transports, or any person on board any aircraft who possesses prohibited or restricted merchandise knowing, or intending, that the merchandise will be introduced into the U.S. contrary to law shall be subject to a civil penalty of twice the value of the merchandise involved, but not less than $10,000, as prescribed in section 590, Tariff Act of 1930, as amended (19 U.S.C. 1590). Any aircraft used in connection with, or in aiding or facilitating, any violation of 19 U.S.C. 1590, whether or not any person is charged in connection with such violation, may be seized and forfeited in accordance with Customs laws.
(b) Criminal penalties. Any aircraft pilot or person who intentionally violates 19 U.S.C. 1590 is, upon conviction, subject to the criminal penalties of a fine of not more than $10,000 or imprisonment for not more than 5 years, or both, if none of the merchandise involved is a controlled substance. More severe penalties are provided in 19 U.S.C. 1590 if the smuggled merchandise is a controlled substance. In such case, a violator is liable for a fine of not more than $250,000 or imprisonment for not more than 20 years, or both.
(c) For purposes of imposing civil penalties under this section, any of the following acts, when performed within 250 miles of the territorial sea of the United States, shall be evidence that the transportation or possession of merchandise was unlawful and shall indicate that the purpose of the transfer was to make it possible for such merchandise, or any part of it, to be introduced into the U.S. unlawfully. For purposes of seizure and forfeiture, the following acts shall be evidence that an aircraft was used in connection with, or to aid or facilitate, a violation of this section;
(1) The operation of an aircraft without lights during such times as lights are required to be displayed under applicable law.
(2) The presence on an aircraft of an auxiliary fuel tank which is not installed in accordance with applicable law.
(3) The failure to correctly identify the aircraft by registration number and country of registration, when requested to do so by a customs officer or other government authority.
(4) The external display of false registration numbers or false country of registration.
(5) The presence on board of unmanifested merchandise, the importation of which is prohibited or restricted.
(6) The presence on board of controlled substances which are not manifested or which are not accompanied by the permits or licenses required under Single Convention on Narcotic Drugs or other international treaty.
(7) The presence of any compartment or equipment which is built or fitted out for smuggling.
§ 122.171   Description of program.
The Air Carrier Smuggling Prevention Program (ACSPP) is designed to enlist the cooperation of the air carriers, as defined in 19 U.S.C. 1584 note, in Customs efforts to prevent the smuggling of controlled substances. If carriers develop and implement thorough and complete internal security procedures at ACSPP designated terminals and foreign departure and intermediate points, the opportunity for their conveyances being used for transportation of controlled substances will be greatly reduced. Participation in the program is voluntary, and may be limited to specific routes. Should a controlled substance be introduced into the United States on a conveyance owned or operated by a participating carrier however, the carrier will be exempt from seizure and penalties should it satisfy the provisions of § 122.175 of this part. The program will be operational for a period of 2 years from December 18, 1989, pursuant to 19 U.S.C. 1584 note.
§ 122.172   Eligibility.
Any air carrier whose international flights arrive at, or depart from, any of the designated test airports, Miami International Airport, Dallas-Fort Worth International Airport, or Los Angeles International Airport, is eligible for participation in the ACSPP.
§ 122.173   Application procedures.
(a) Application. An air carrier which wishes to participate in the ACSPP shall submit an application to the Assistant Commissioner, Office of Field Operations, in which it:
(1) Identifies specific routes and designated departure points and ACSPP airports for which application is made;
(2) Certifies that it has developed and will continue to maintain standard operating procedures (SOP) which are designed to safeguard the integrity of its employees, cargo and conveyances. The application shall be accompanied by three (3) copies of the SOP developed by the air carrier.
(b) Approval criteria. Upon receipt, each application will be reviewed to determine whether the procedures contained therein meet the requirements of the ACSPP. In determining whether a SOP submitted by an applicant carrier contains sufficient detail to assure the proper level of care and diligence required under the provisions of the ACSPP, the Assistant Commissioner, Office of Field Operations, will apply uniform standards and verify that, at a minimum, procedures are in place which:
(1) Assure positive security background checks are performed on all carrier employees, both those employed within the United States and without, who have access to baggage, cargo or secure areas on participating routes, to the extent permitted by law;
(2) Assure a system of positive baggage and cargo identification is employed at all terminals used by the carrier;
(3) Assure the carrier employs a system to assure that no unmanifested cargo is placed on board the conveyance or brought into the United States on any of their conveyances;
(4) Assure the carrier has specific procedures through which it will notify Customs should it discover any unmanifested or improperly manifested cargo on any of its conveyances or in any area subject to its control;
(5) Assure the carrier has an effective and practical employee awareness training program in place; and
(6) Assure thorough security measures are implemented at all foreign departure points on ACSPP participating routes which will assure that the carrier has control and knowledge of the baggage, cargo, passenger and other materials placed on board its aircraft.
(c) Acceptance and notification. Upon verification by Customs that a carrier's SOP meets all the criteria outlined in § 122.173(b) of this part, the carrier will be notified that its application to the ACSPP has been accepted. Acceptance into the ACSPP is made with the understanding and expectation that the carrier will continue to act with the highest degree of care and diligence required under law and that it will abide by and perform all elements of its approved SOP.
§ 122.174   Operational procedures.
(a) Participating carriers. Participating carriers are required to develop and adhere to procedures whereby they will:
(1) Provide security personnel for every international arrival participating in the ACSPP to conduct the following procedures:
(i) Perform a thorough internal and external search of the arriving aircraft;
(ii) Maintain total control of all passengers and cargo being discharged from the aircraft to either the Customs passenger hall or to the carrier's cargo facility;
(iii) Verify that all cargo on aircraft is properly manifested, marked and weighed and that piece counts are properly performed; and
(iv) Maintain physical security of the aircraft and ramp access to the aircraft while it is being offloaded.
(2) Provide security personnel at the foreign point of departure for every international departure which is participating in ACSPP to conduct the following procedures:
(i) Perform a thorough internal and external search of the departing aircraft;
(ii) Maintain total control of all passengers and cargo being loaded on the aircraft from either the passenger terminal or the carrier's cargo facility;
(iii) Verify that all cargo placed on the aircraft is properly manifested, marked and weighed and that piece counts are properly performed;
(iv) Maintain physical security of the aircraft and ramp access to the aircraft while it is being loaded; and
(v) Maintain similar positive security measures at all foreign intermediate airports prior to the arrival of the aircraft at an ACSPP designated airport.
(b) U.S. Customs. U.S. Customs will:
(1) Retain all current options available regarding the search and inspection of any and all passengers, cargo and conveyances; and
(2) Provide training to carrier personnel to assist the development of proper operational procedures.
§ 122.175   Exemption from penalties.
Should a controlled substance be introduced into the United States or discovered aboard an aircraft owned or operated by a participating carrier, or in cargo carried by a participating carrier, on a route identified by the carrier as one participating in the ACSPP and which has been approved by Customs, the participating air carrier shall be considered to have met the test of highest degree of care and diligence required under law, and shall not be subject to the penalty or seizure provisions of the Tariff Act of 1930, as amended, if the carrier establishes at an oral presentation before the port director or his designee, that the carrier was not grossly negligent nor engaged in willful misconduct, and that it had complied with all the provisions of these regulations.
§ 122.176   Removal from ACSPP.
(a) Grounds for removal from ACSSPP. The Assistant Commissioner, Office of Field Operations, may revoke or supend the privilege of operating as a member of the ACSPP if:
(1) Acceptance into the program was gained through fraud or the misstatement of a material fact;
(2) The carrier refuses or neglects to obey any proper order of a Customs officer or any Customs order, rule, or regulation relative to its cooperation within the program;
(3) An officer of the carrier or corporation which has been accepted into the program is convicted of a felony or misdemeanor involving theft, smuggling, or other theft-connected crime which was committed in his or her official capacity as an officer of the carrier, or is convicted of any Customs-related crime;
(4) The carrier fails to retain merchandise which has been designated for examination;
(5) The carrier does not provide secure facilities or properly safeguard merchandise within its area of control; or
(6) The carrier fails to observe any of the procedures which it had set forth in the SOP which served as the basis for the carrier's acceptance into the program; and
(7) The carrier has been notified in writing that it has been found in noncompliance with a provision of the program and has failed to correct such noncompliance after having been given a reasonable opportunity to correct such noncompliance.
(b) Notice and appeal. The Assistant Commissioner, Office of Field Operations, shall suspend or remove participants from the ACSPP by serving notice of the proposed action upon the carrier in writing. The notice shall be in the form of a statement specifically setting forth the grounds for suspension or removal and shall provide the carrier with notice that it may file a written notice of appeal from suspension or revocation within 10 days following receipt of the notice of revocation or suspension. The notice of appeal shall be filed in duplicate to the office of the Assistant Commissioner, Field Operations, and shall set forth response of the carrier to the statement of the Assistant Commissioner.
(c) Notice of decision. The Assistant Commissioner, Office of Field Operations, shall notify the participating carrier in writing of the decision concerning continued participation in the program.
(d) Use of uniform criteria. When making any determination regarding a carrier's participation or continuation in the ACSPP, the Assistant Commissioner, Office of Field Operations, shall employ a uniform standard of performance and evaluation.
§ 122.181   Definition of Customs security area.
For purposes of this section, the term “Customs security area” means the Federal inspection services area at any airport accommodating international air commerce designated for processing passengers, crew, their baggage and effects arriving from, or departing to, foreign countries, as well as the aircraft deplaning and ramp area and other restricted areas designated by the port director. These areas will be posted as restricted to the extent possible and are established for the purpose of prohibiting unauthorized entries or contact with persons or objects.
§ 122.182   Security provisions.
(a) Customs access seal required. With the exception of all Federal and uniformed State and local law enforcement personnel and aircraft passengers and crew, all persons located at, operating out of, or employed by any airport accommodating international air commerce or its tenants or contractors, including air carriers, who have unescorted access to the Customs security area, must openly display or produce upon demand an approved access seal issued by Customs. The approved Customs access seal must be in the possession of the person in whose name it is issued whenever the person is in the Customs security area and must be used only in furtherance of that person's employment in accordance with the description of duties submitted by the employer under paragraph (c)(1) of this section. The Customs access seal remains the property of Customs, and any bearer must immediately surrender it as provided in paragraph (g) of this section or upon demand by any authorized Customs officer for any cause referred to in § 122.187(a). Unless surrendered pursuant to paragraph (g) of this section or § 122.187, each approved Customs access seal issued under paragraph (c)(1) of this section will remain valid for 2 years from January 1, 2002, in the case of a Customs access seal issued prior to that date and for 2 years from the date of issuance in all other cases. Retention of an approved Customs access seal beyond the applicable 2-year period will be subject to the reapplication provisions of paragraph (c)(2) of this section.
(b) Employers responsibility. Employers operating in Customs airport security areas shall advise all employees of the provisions of the Customs regulations relative to those areas, require employees to familiarize themselves with those provisions and insure employee compliance. The employer shall also advise the port director of any changes of employment pursuant to § 122.182(g).
(c) Application requirements —(1) Initial application. An application for an approved Customs access seal, as required by this section, must be filed by the applicant with the port director on Customs Form 3078 and must be supported by a written request and justification for issuance prepared by the applicant's employer that describes the duties that the applicant will perform while in the Customs security area. The application requirement applies to all employees required to display an approved Customs access seal by this section, regardless of the length of their employment. The application must be supported by the bond of the applicant's employer or principal on Customs Form 301 containing the bond conditions set forth in § 113.62, § 113.63, or § 113.64 of this chapter, relating to importers or brokers, custodians of bonded merchandise, or international carriers. If the applicant's employer is not the principal on a Customs bond on Customs Form 301 for one or more of the activities to which the bond conditions set forth in § 113.62, § 113.63, or § 113.64 relate, the application must be supported by an Airport Customs Security Area Bond, as set forth in appendix A of part 113 of this chapter. The latter bond may be waived, however, for State or local government-related agencies in the discretion of the port director. Waiver of this bond does not relieve the agency in question or its employees from compliance with all other provisions of this subpart. In addition, in connection with an application for an approved Customs access seal under this section:
(i) The port director may require the applicant to submit fingerprints on form FD-258 or on any other approved medium either at the time of, or following, the filing of the application. If required, the port director will inform the applicant of the current Federal Bureau of Investigation user fee for conducting fingerprint checks and the Customs administrative processing fee, the total of which must be tendered by, or on behalf of, the applicant with the application; and
(ii) Proof of citizenship or authorized residency and a photograph may also be required.
(2) Reapplication. If a person wishes to retain an approved Customs access seal for one or more additional 2-year periods beyond the 2-year period referred to in paragraph (a) of this section, that person must submit a new application no later than 30 calendar days prior to the start of each additional period. The new application must be filed in the manner specified in paragraph (c)(1) of this section for an initial application, and the port director may also require the submission of fingerprints as provided in paragraph (c)(1)(i) of this section. The new application will be subject to review on a de novo basis as if it were an initial application except that the written attestation referred to in paragraph (d) of this section will not be required if there has been no change in the employment of the applicant since the last attestation was submitted to Customs.
(d) Background check. An authorized official of the employer must attest in writing that a background check has been conducted on the applicant, to the extent allowable by law. The background check must include, at a minimum, references and employment history, to the extent necessary to verify representations made by the applicant relating to employment in the preceding 5 years. The authorized official of the employer must attest that, to the best of his knowledge, the applicant meets the conditions necessary to perform functions associated with employment in the Customs security area. Additionally, the application may be investigated by Customs and a report prepared concerning the character of the applicant. Records of background investigations conducted by employers must be retained for a period of one year following cessation of employment and made available upon request of the port director.
(e) Law Enforcement officers and other governmental officials. Law enforcement officers and other Federal, State, or local officials whose official duties require access to the Customs security area may request from the port director the issuance of an approved Customs access seal. They need not make application nor submit to background checks for security area access. An Airport Customs Security Area Bond is not required.
(f) Replacement access seal. A new Custom access seal may be obtained from the port director in the following circumstances, without the completion of an additional application, except as determined by the port director in his discretion:
(1) A change in employee name or address;
(2) A change in the name or ownership of the employing company;
(3) A change in employer or airport authority identification card format; or
(4) Loss or theft of the Customs access seal (see § 122.185 of this part).
(g) Surrender of access seal. Where the employee no longer requires access to the Customs security area for an extended period of time at the airport of issuance due to a change in duties, termination of employment, or other reason, or where the 2-year period referred to in paragraph (a) of this section expires and a new application under paragraph (c)(2) of this section has not been approved, the employer shall notify the port director in writing, at the time of such change, and shall return the Customs access seal to Customs. The notification shall include information regarding the disposition of the approved Customs access seal of the employee.
§ 122.183   Denial of access.
(a) Grounds for denial. Access to the Customs security area will not be granted, and therefore an approved Customs access seal will not be issued, to any person whose access to the Customs security area will, in the judgment of the port director, endanger the revenue or the security of the area or pose an unacceptable risk to public health, interest or safety, national security, or aviation safety. Specific grounds for denial of access to the Customs security area include, but are not limited to, the following:
(1) Any cause which would justify a demand for surrender of a Customs access seal or the revocation or suspension of access under § 122.182(g) or § 122.187;
(2) Evidence of a pending or past investigation establishing probable cause to believe that the applicant has engaged in any conduct which relates to, or which could lead to a conviction for, a disqualifying offense listed under paragraph (a)(4) of this section;
(3) The arrest of the applicant for, or the charging of the applicant with, a disqualifying offense listed under paragraph (a)(4) of this section on which prosecution or other disposition is pending;
(4) A disqualifying offense committed by the applicant. For purposes of this paragraph, an applicant commits a disqualifying offense if the applicant has been convicted of, or found not guilty of by reason of insanity, or has committed any act or omission involving, any of the following in any jurisdiction during the 5-year period, or any longer period that the port director deems appropriate for the offense in question, prior to the date of the application submitted under § 122.182 or at any time while in possession of an approved Customs access seal:
(i) Forgery of certificates, false marking of aircraft, and other aircraft registration violation (49 U.S.C. 46306);
(ii) Interference with air navigation (49 U.S.C. 46308);
(iii) Improper transportation of a hazardous material (49 U.S.C. 46312);
(iv) Aircraft piracy in the special aircraft jurisdiction of the United States (49 U.S.C. 46502(a));
(v) Interference with flight crew members or flight attendants (49 U.S.C. 46504);
(vi) Commission of certain crimes aboard aircraft in flight (49 U.S.C. 46506);
(vii) Carrying a weapon or explosive aboard aircraft (49 U.S.C. 46505);
(viii) Conveying false information and threats (49 U.S.C. 46507);
(ix) Aircraft piracy outside the special aircraft jurisdiction of the United States (49 U.S.C. 46502(b));
(x) Lighting violations involving transportation of controlled substances (49 U.S.C. 46315);
(xi) Unlawful entry into an aircraft or airport area that serves air carriers or foreign air carriers contrary to established security requirements (49 U.S.C. 46314);
(xii) Destruction of an aircraft or aircraft facility (18 U.S.C. 32);
(xiii) Murder;
(xiv) Assault with intent to murder;
(xv) Espionage;
(xvi) Sedition;
(xvii) Kidnapping or hostage taking;
(xviii) Treason;
(xix) Rape or aggravated sexual abuse;
(xx) Unlawful possession, use, sale, distribution, or manufacture of an explosive or weapon;
(xxi) Extortion;
(xxii) Armed or felony unarmed robbery;
(xxiii) Distribution of, or intent to distribute, a controlled substance;
(xxiv) Felony arson;
(xxv) Felony involving:
(A) A threat;
(B) Willful destruction of property;
(C) Importation or manufacture of a controlled substance;
(D) Burglary;
(E) Theft;
(F) Dishonesty, fraud, or misrepresentation;
(G) Possession or distribution of stolen property;
(H) Aggravated assault;
(I) Bribery; or
(J) Illegal possession of a controlled substance punishable by a maximum term of imprisonment of more than one year;
(xxvi) Violence at an airport serving international civil aviation (18 U.S.C. 37);
(xxvii) Embezzlement;
(xxviii) Perjury;
(xxix) Robbery;
(xxx) Crimes associated with terrorist activities;
(xxxi) Sabotage;
(xxxii) Assault with a deadly weapon;
(xxxiii) Illegal use or possession of firearms or explosives;
(xxxiv) Any violation of a U.S. immigration law;
(xxxv) Any violation of a Customs law or any other law administered or enforced by Customs involving narcotics or controlled substances, commercial fraud, currency or financial transactions, smuggling, failure to report, or failure to declare;
(xxxvi) Airport security violations; or
(xxxvii) Conspiracy or attempt to commit any of the offenses or acts referred to in paragraphs (a)(4)(i) through (a)(4)(xxxv) of this section;
(5) Denial or suspension of the applicant's unescorted access authority to a Security Identification Display Area (SIDA) pursuant to regulations promulgated by the U.S. Federal Aviation Administration or other appropriate government agency; or
(6) Inability of the applicant's employer or Customs to complete a meaningful background check or investigation of the applicant.
(b) Notification of denial. The port director shall give written notification to any person whose application for access to the Customs security area has been denied, fully stating the reasons for denial and setting forth specific appeal procedures. The employer shall be notified in writing that the applicant has been denied access to the area and that the detailed reasons for the denial have been furnished to the applicant. Detailed reasons regarding the denial, however, shall not be furnished to the employer by Customs.
(c) Appeal of denial. The denial will be final unless the applicant files with the port director a written notice of appeal within 10 days following receipt of the notice of denial. The notice of appeal shall be filed in duplicate and shall set forth the response of the applicant to the statement of the port director. The port director will render his decision on the appeal to the applicant in writing within 30 calendar days of receipt of the notice of appeal and, if the application is denied on appeal, the decision will advise the applicant of the procedures for filing a further appeal pursuant to paragraph (d) of this section.
(d) Further appeal of denial. Where the application on appeal is denied by the port director, the applicant may file a further written notice of appeal with the director of field operations at the Customs Management Center having jurisdiction over the office of the port director within 10 calendar days of receipt of the port director's decision on the appeal. The further notice of appeal must be filed in duplicate and must set forth the response of the applicant to the decision of the port director. The director of field operations will review the appeal and render a written decision. The final decision will be transmitted to the port director and served by him on the applicant.
§ 122.184   Change of identification; change in circumstances of employee; additional employer responsibilities.
(a) Change of identification. The Customs access seal may be removed from the employee by the port director where, for security reasons, a change in the nature of the identification card or other medium on which it appears is necessary.
(b) Change in circumstances of employee. If, after issuance of a Customs access seal to an employee, any circumstance arises (for example, an arrest or conviction for a disqualifying offense) that constitutes a ground for denial of access to the Customs security area under § 122.183(a) or for revocation or suspension of access to the Customs security area and surrender of the Customs access seal under § 122.187(a), the employee must within 24 hours advise the port director in writing of that change in circumstance. In the case of an arrest or prosecution for a disqualifying offense listed in § 122.183(a)(4), the employee also must within 5 calendar days advise the port director in writing of the final disposition of that arrest or prosecution. In addition, if an airport operator or an aircraft operator suspends an employee's unescorted access authority to a Security Identification Display Area pursuant to regulations promulgated by the U.S. Federal Aviation Administration or other appropriate government agency and the employee also has an approved Customs access seal, the employee must within 24 hours advise the port director in writing of the fact of, and basis for, the suspension.
(c) Additional employer responsibilities. If an employer becomes aware of any change in the circumstances of its employee as described in paragraph (b) of this section, the employer must immediately advise the port director of that fact even though the employee may have separately reported that fact to the port director under paragraph (b) of this section. In addition, each employer must submit to the port director during the first month of each calendar quarter a report setting forth a current list of all its employees who have an approved Customs access seal. The quarterly report must list separately all additions to, and deletions from, the previous quarterly report. Moreover, each employer must take appropriate steps to ensure that an employee uses an approved Customs access seal only in connection with activities relating to his employment.
§ 122.185   Report of loss or theft of Customs access seal.
The loss or theft of an approved Customs access seal must be promptly reported in writing by the employee to the port director. The Customs access seal may be replaced, as provided in § 122.182(f).
§ 122.186   Presentation of Customs access seal by other person.
If an approved Customs access seal is presented by a person other than the one to whom it was issued, the Customs access seal will be removed and destroyed. An approved Customs access seal may be removed from an employee by any Customs officer designated by the port director.
§ 122.187   Revocation or suspension of access.
(a) Grounds for revocation or suspension of access —(1) General. The port director:
(i) Must immediately revoke or suspend an employee's access to the Customs security area and demand the immediate surrender of the employee's approved Customs access seal for any ground specified in paragraph (a)(2) of this section; or
(ii) May propose the revocation or suspension of an employee's access to the Customs security area and the surrender of the employee's approved Customs access seal whenever, in the judgment of the port director, it appears for any ground not specified in paragraph (a)(2) of this section that continued access might pose an unacceptable risk to public health, interest or safety, national security, aviation safety, the revenue, or the security of the area. In this case the port director will provide the employee with an opportunity to respond to the notice of proposed action.
(2) Specific grounds. Access to the Customs security area will be revoked or suspended, and surrender of an approved Customs access seal will be demanded, in any of the following circumstances:
(i) There is probable cause to believe that an approved Customs access seal was obtained through fraud, a material omission, or the misstatement of a material fact;
(ii) The employee is or has been convicted of, or found not guilty of by reason of insanity, or there is probable cause to believe that the employee has committed any act or omission involving, an offense listed in § 122.183(a)(4);
(iii) The employee has been arrested for, or charged with, an offense listed in § 122.183(a)(4) and prosecution or other disposition of the arrest or charge is pending;
(iv) The employee has engaged in any other conduct that would constitute a ground for denial of access to the Customs security area under § 122.183;
(v) The employee permits the approved Customs access seal to be used by any other person or refuses to openly display or produce it upon the proper demand of a Customs officer;
(vi) The employee uses the approved Customs access seal in connection with a matter not related to his employment or not constituting a duty described in the written justification required by § 122.182(c)(1);
(vii) The employee refuses or neglects to obey any proper order of a Customs officer, or any Customs order, rule, or regulation;
(viii) For all employees of the bond holder, if the bond required by § 122.182(c) is determined to be insufficient in amount or lacking sufficient sureties, and a satisfactory new bond with good and sufficient sureties is not furnished within a reasonable time;
(ix) The employee no longer requires access to the Customs security area for an extended period of time at the airport of issuance because of a change in duties, termination of employment, or other reason; or
(x) The employee or employer fails to provide the notification of a change in circumstances as required under § 122.184(b) or (c) or the employee fails to report the loss or theft of a Customs access seal as required under § 122.185.
(b) Notice of revocation or suspension. The port director will revoke or suspend access to the Customs security area and demand surrender of the Customs access seal by giving notice of the revocation or suspension and demand in writing to the employee, with a copy of the notice to the employer. The notice will indicate whether the revocation or suspension is effective immediately or is proposed.
(1) Immediate revocation or suspension. When the revocation or suspension of access and the surrender of the Customs access seal are effective immediately, the port director will issue a final notice of revocation or suspension. The port director or his designee may deny physical access to the Customs security area and may demand surrender of an approved Customs access seal at any time on an emergency basis prior to issuance of a final notice of revocation or suspension whenever in the judgment of the port director or his designee an emergency situation involving public health, safety, or security is involved and, in such a case, a final notice of revocation or suspension will be issued to the affected employee within 10 calendar days of the emergency action. A final notice of revocation or suspension will state the specific grounds for the immediate revocation or suspension, direct the employee to immediately surrender the Customs access seal if that Customs access seal has not already been surrendered, and advise the employee that he may choose to pursue one of the following two options:
(i) Submit a new application for an approved Customs access seal, in accordance with the provisions of § 122.182(c), on or after the 180th calendar day following the date of the final notice of revocation or suspension; or
(ii) File a written administrative appeal of the final notice of revocation or suspension with the port director in accordance with paragraph (c) of this section within 30 calendar days of the date of the final notice of revocation or suspension. The appeal may request that a hearing be held in accordance with paragraph (d) of this section, and in that case the appeal also must demonstrate that there is a genuine issue of fact that is material to the revocation or suspension action.
(2) Proposed revocation or suspension —(i) Issuance of notice. When the revocation or suspension of access and the surrender of the Customs access seal is proposed, the port director will issue a notice of proposed revocation or suspension. The notice of proposed revocation or suspension will state the specific grounds for the proposed action, inform the employee that he may continue to have access to the Customs security area and may retain the Customs access seal pending issuance of a final notice under paragraph (b)(2)(ii) of this section, and advise the employee that he may file with the port director a written response addressing the grounds for the proposed action within 10 calendar days of the date the notice of proposed action was received by the employee. The employee may respond by accepting responsibility, explaining extenuating circumstances, and/or providing rebuttal evidence. The employee also may ask for a meeting with the port director or his designee to discuss the proposed action.
(ii) Final notice —(A) Based on nonresponse. If the employee does not respond to the notice of proposed action, the port director will issue a final notice of revocation or suspension within 30 calendar days of the date the notice of proposed action was received by the employee. The final notice of revocation or suspension will state the specific grounds for the revocation or suspension, direct the employee to immediately surrender the Customs access seal, and advise the employee that he may choose to pursue one of the two options specified in paragraphs (b)(1)(i) and (ii) of this section.
(B) Based on response. If the employee files a timely response, the port director will issue a final determination regarding the status of the employee's right of access to the Customs security area within 30 calendar days of the date the employee's response was received by the port director. If this final determination is adverse to the employee, then the final notice of revocation or suspension will state the specific grounds for the revocation or suspension, direct the employee to immediately surrender the Customs access seal, and advise the employee that he may choose to pursue one of the two options specified in paragraphs (b)(1)(i) and (ii) of this section.
(c) Appeal procedures —(1) Filing of appeal. The employee may file a written appeal of the final notice of revocation or suspension with the port director within 10 calendar days following receipt of the final notice of revocation or suspension. The appeal must be filed in duplicate and must set forth the response of the employee to the statement of the port director. The port director may, in his discretion, allow the employee additional time to submit documentation or other information in support of the appeal.
(2) Action by port director —(i) If a hearing is requested. If the appeal requests that a hearing be held, the port director will first review the appeal to determine whether there is a genuine issue of fact that is material to the revocation or suspension action. If a hearing is required because the port director finds that there is a genuine issue of fact that is material to the revocation or suspension action, a hearing will be held, and a decision on the appeal will be rendered, in accordance with paragraphs (d) through (f) of this section. If the port director finds that there is no genuine issue of fact that is material to the revocation or suspension action, no hearing will be held and the port director will forward the administrative record as provided in paragraph (c)(2)(ii) of this section for the rendering of a decision on the appeal under paragraph (c)(3) of this section.
(ii) CMC review. If no hearing is requested or if the port director finds that a requested hearing is not required, following receipt of the appeal the port director will forward the administrative record to the director of field operations at the Customs Management Center having jurisdiction over the office of the port director for a decision on the appeal. The transmittal of the port director must include a response to any disputed issues raised in the appeal.
(3) Action by the director. Following receipt of the administrative record from the port director, the director of field operations will render a written decision on the appeal based on the record forwarded by the port director. The decision will be rendered within 30 calendar days of receipt of the record and will be transmitted to the port director and served by the port director on the employee. A decision on an appeal rendered under this paragraph will constitute the final administrative action on the matter.
(d) Hearing. A hearing will be conducted in connection with an appeal of a final notice of revocation or suspension of access to the Customs security area only if the affected employee in writing requests a hearing and demonstrates that there is a genuine issue of fact that is material to the revocation or suspension action. If a hearing is required, it must be held before a hearing officer designated by the Commissioner, or his designee. The employee will be notified of the time and place of the hearing at least 5 calendar days before the hearing. The employee may be represented by counsel at the revocation or suspension hearing. All evidence and testimony of witnesses in the proceeding, including substantiation of charges and the answer to the charges, must be presented. Both parties will have the right of cross'examination. A stenographic record of the proceedings will be made upon request and a copy furnished to the employee. At the conclusion of the proceedings or review of a written appeal, the hearing officer must promptly transmit all papers and the stenographic record to the director of field operations, together with the recommendation for final action. If neither the employee nor his attorney appears for a scheduled hearing, the hearing officer must record that fact, accept any appropriate testimony, and conclude the hearing. The hearing officer must promptly transmit all papers, together with his recommendations, to the director of field operations.
(e) Additional written views. Within 10 calendar days after delivery of a copy of the stenographic record of the hearing to the director of field operations, either party may submit to the director of field operations additional written views and arguments on matters in the record. A copy of any submission will be provided to the other party. Within 10 calendar days of receipt of the copy of the submission, the other party may file a reply with the director of field operations, and a copy of the reply will be provided to the other party. No further submissions will be accepted.
(f) Decision. After consideration of the recommendation of the hearing officer and any additional written submissions and replies made under paragraph (e) of this section, the director of field operations will render a written decision. The decision will be transmitted to the port director and served by the port director on the employee. A decision on an appeal rendered under this paragraph will constitute the final administrative action on the matter.
§ 122.188   Issuance of temporary Customs access seal.
(a) Conditions for issuance. When an approved Customs access seal is required under § 122.182(a) of this part and the port director determines that the application cannot be administratively processed in a reasonable period of time, an employer may, upon written request, be issued a temporary Customs access seal for his employee. The employer must satisfy the port director that a hardship would result if the request is not granted. Surety on the bond, as required by § 122.182(c), may be waived in the discretion of the port director but only for the period of the temporary Customs access seal and its renewal period.
(b) Validation period. The temporary Customs access seal shall be valid for a period of 60 days. The port director may renew the temporary Customs access seal for additional 30 day periods where the circumstances under which the temporary Customs access seal was originally issued continue to exist. The temporary Customs access seal shall be destroyed by the port director when the permanent approved Customs access seal is issued, or the privileges granted thereby are withdrawn.
(c) Temporary employees and official visitors. The provisions of this section shall also apply to temporary employees and official visitors requiring access to the Customs security area. In the case of temporary employees, the Customs access seal shall be valid for a period of 30 days. In the case of official visitors, the temporary Customs access seal shall be valid for the day of issuance only. Temporary employee and official visitor Customs access seal are renewable for periods equal to their original period of validity.
(d) Revocation of denial and access. The temporary Customs access seal may be revoked and access to the Customs security area denied at any time if the holder of the temporary Customs access seal refuses or neglects to obey any proper order of a Customs officer, or any Customs order, rule, or regulation, or if, in the judgment of the port director, continuation of the privileges granted thereby would endanger the revenue or pose a threat to the Customs security area.
§ 122.189   Bond liability.
Any failure on the part of a principal to comply with the conditions of the bond required under § 122.182(c), including a failure of an employer to comply with any requirement applicable to the employer under this subpart, will constitute a breach of the bond and may result in a claim for liquidated damages under the bond.