By Christopher B. Stagg

Introduction

In the United States, U.S. Customs and Border Protection (Customs) regulates the overflight of private aircraft arriving from areas south of the U.S. border and coastline.   At this time, Customs regulates flights from these areas that involve charter aircraft of 30 or less seats.   Exempted from these regulations are private aircraft with scheduled flight operations that have existing authority by the U.S. Department of Transportation.   In addition, private aircraft with charter flight operations of 31 or more people are exempted from these regulations,   as well as public aircraft.

Aircraft subject to these regulations are required to land at a designated airport, which are airports with customs facilities that are located close to the southern border.   After clearing customs at the designated airport, the aircraft is then able to continue onto its destination.  This is problematic if the designation airport that an aircraft is required to land at by Customs is not the intended destination, as this provides a significant burden by adding to flight costs and time.

Additionally, aircraft are required to submit advance notification information to Customs at least one hour prior to crossing the U.S. border or coastline.   The contents of the notice include the aircraft registration number, name of the aircraft commander, number of U.S. citizen passengers, number of alien passengers, previous departure location, the estimated time and location of crossing the U.S. border or coastline, the estimated of arrival, and the name of intended U.S. airport of first landing.

Exemption

Private aircraft operators may apply to Customs for an overflight exemption so that flights are not required to land at a designated airport but can fly directly to their destination.   Operators may apply for either a single overflight exemption or a term overflight exemption.   A single overflight exemption is available for medical purposes, either involving emergencies or non-emergencies.   The term overflight exemption is valid for one year and is renewable.   Customs has the authority to grant or deny exemptions, with the discretion granted to the port director.

To obtain customs overflight exemption from special landing requirements, a request must be made to the port director of the airport where a majority of the customs processing will take place.   The request must be signed and notarized or witnessed by a Customs officer by the requesting individual or by an officer of the company.   The request must be submitted at least 30 days before the first overflight.

The request for overflight exemption requires providing Customs with information regarding the aircraft (by providing model type, registration number and manufacturer serial numbers), all pilot members, all crewmembers (including flight attendants), names of intended airports of first landing, as well as usual and anticipated passengers.   At least one passenger on the provided passenger list must be on the flight to use overflight exemption authority.   Consequently, overflight exemption authority is not available where the flight has no passengers.

To maintain the exemption, aircraft must follow instrument flight rules (IFR) when conducting overflight to the U.S.   Aircraft may land at any airport in the U.S. that is staffed by Customs and is listed in the requester’s approved application for exemption.   As is the case without exemption, the crew must follow advanced notice requirements.   This means that the aircraft commander must notify Customs at least 60 minutes prior to crossing the U.S. border or coastline.   The notice must be given to a designated airport by telephone, radio, or other accepted means.

Aircraft flying to airports other than designated airports must also comply with, or receive exemption from, any rules regulating these airports, such as landing rights airports.   The aircraft owner or commander is also required to notify Customs of any event that changes the information it supplied in its approved exemption request.   The requestor must keep a copy of the exemption request on any aircraft during an overflight.   An individual or company owner of the aircraft must also make the aircraft available to inspection by Customs during the initial request review or thereafter.

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For more information on customs overflight law or exemptions, or any other regulatory or transactional matters, please contact Christopher B. Stagg directly at (212) 518-4854 or at cbs@stagglaw.com.