CBP Issues Final Rule On Airports Of Entry Or Departure For Flights To And From Cuba

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[Federal Register: January 28, 2011 (Volume 76, Number 19)]
[Rules and Regulations]              
[Page 5058-5061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ja11-2]                        

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 234

U.S. Customs and Border Protection

19 CFR Part 122

[CBP Dec 11-05]
RIN 1651-AA86

Airports of Entry or Departure for Flights to and From Cuba

AGENCY: U.S. Customs and Border Protection, DHS.

ACTION: Final rule.

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SUMMARY: Under Department of Homeland Security (DHS) regulations,
direct flights between the United States and Cuba must arrive at or
depart from one of three named U.S. airports: John F. Kennedy
International Airport, Los Angeles International Airport, or Miami
International Airport. This document amends current DHS regulations to
allow additional U.S. airports that are able to process international
flights to request approval of U.S. Customs and Border Protection (CBP)
to process authorized flights between the United States and Cuba. These
amendments are in accordance with the President's recent statement
easing the restrictions placed on flights to and from Cuba by, among
other things, providing that eligible airports may seek approval from

[[Page 5059]]

CBP to accommodate flights arriving from, or departing for, Cuba. This
statement builds upon the President's 2009 initiative to promote
democracy and human rights in Cuba by easing travel restrictions to
facilitate greater contact between separated family members in the
United States and Cuba.

DATES: Effective Date: January 28, 2011.

FOR FURTHER INFORMATION CONTACT: Arthur A.E. Pitts, Sr., U.S. Customs
and Border Protection, Office of Field Operations, 202-344-2752.

SUPPLEMENTARY INFORMATION:

Background

    Part 122 of the CBP regulations, subpart O, consisting of sections
122.151-122.158 (19 CFR 122.151-122.158), sets forth special procedures
that apply to all aircraft (except public aircraft) entering or
departing the United States to or from Cuba. In particular, section
122.153 (19 CFR 122.153) provides that the owner or person in command
of any aircraft clearing the U.S. for, or entering the U.S. from, Cuba
must clear or obtain permission to depart from, or enter at, the Miami
International Airport, Miami, Florida; the John F. Kennedy
International Airport, Jamaica, New York; or the Los Angeles
International Airport, Los Angeles, California. Additionally, section
122.154 of the CBP regulations (19 CFR 122.154) requires the person in
command of the aircraft to provide advance notice of arrival at least
one hour before crossing the U.S. coast or border. This notice must be
given either through the Federal Aviation Administration flight
notification procedure or directly to the CBP officer in charge at one
of the designated airports, as applicable.
    Title 8 of the Code of Federal Regulations pertaining to landing
requirements for aliens arriving by civil aircraft also restricts
flights arriving from Cuba that are carrying passengers or crew that
are required to be inspected under section 235 of the Immigration and
Nationality Act (INA). Paragraph (a) of section 234.2 of title 8 (8 CFR
234.2(a)) requires that these flights land only at the same three
airports: John F. Kennedy, Los Angeles, or Miami, unless advance
permission to land elsewhere has been obtained from CBP's Office of
Field Operations.
    In a statement issued on January 14, 2011, the President announced
a series of changes to ease the restrictions on travel to and from Cuba
as part of an initiative to support the Cuban people's desire to freely
determine their country's future by, among other things, supporting
licensed travel and intensifying people-to-people exchanges. This
announcement builds on the President's April 13, 2009 initiative to
promote greater contact between separated family members in the United
States and Cuba.

Flights Between Cuba and Additional Airports in the United States

    In the January 14, 2011 statement, the President announced that
additional U.S. airports able to process international flights may
request CBP approval to accept direct flights to and from Cuba in
accordance with procedures to be established by CBP. Provided CBP is
satisfied that the airport is suitable to process these flights, CBP
will add the airport to the list of airports authorized for direct
flights to or from Cuba.
    In accordance with this statement, DHS is amending section 122.153
of title 19 of the Code of Federal Regulations (19 CFR 122.153) to
provide that airports that meet existing CBP standards for
accommodating international flights may request CBP approval to accept
direct flights to and from Cuba. Properly authorized flights to and
from Cuba will be able to arrive at or depart from any U.S. airport
that CBP has approved. For reference purposes, CBP will provide a list
of authorized airports in section 122.153 as well as on the CBP Web
site, http://www.cbp.gov.
    DHS is also amending section 122.154 of title 19 (19 CFR 122.154)
and section 234.2 of title 8 (8 CFR 234.2) to bring these sections into
conformity with revised section 122.153 of title 19. Revised paragraph
(b) of section 122.154 of title 19 indicates that when notice of
arrival is provided to CBP, it must be provided to the CBP officer in
charge at the applicable authorized airport. Revised paragraph (a) of
section 234.2 of title 8 indicates that aircraft arriving from Cuba
with passengers or crew required to be inspected under the INA must
land at one of the airports that CBP has authorized pursuant to 19 CFR
122.153. DHS is also revising paragraph (a) of section 234.2 to reflect
current CBP terminology.
    The requirements to obtain clearance and permission from CBP to
depart from or enter at the airport and to provide advance notice of
arrival will still apply. Clearance and permission to depart from or
enter at the airport must be obtained by contacting the CBP officer in
charge at the authorized airport at which the aircraft departs or
arrives. Advance notice of arrival must be provided either through the
Federal Aviation Administration flight notification procedure or
directly to the CBP officer in charge at the authorized airport of
arrival.

Eligibility Requirements and Application and Approval Procedure

    The regulations are amended to set forth eligibility requirements
and application and approval procedures for airports seeking approval
to accept aircraft traveling between the United States and Cuba. (The
three airports currently referenced in section 122.153 of the
regulations are already approved to accept aircraft traveling between
the United States and Cuba and will not need to seek CBP approval under
this procedure.)
    To be eligible to request approval to accept flights to and from
Cuba, an airport must be an international airport, landing rights
airport, or user fee airport, as defined and described in part 122 of
the CBP regulations (19 CFR part 122) and have adequate and up-to-date
staffing, equipment, and facilities to process international traffic.
In addition, the airport must have an Office of Foreign Assets Control
(OFAC) licensed carrier service provider that is prepared to provide
flights between the airport and Cuba. The director of the port
authority governing the airport seeking approval must send a written
request to the Assistant Commissioner, Office of Field Operations, CBP
Headquarters (1300 Pennsylvania Avenue, NW., Washington, DC 20229).
    After CBP determines that the airport is suitable to accommodate
flights traveling between the United States and Cuba, CBP will notify
the requestor that the airport has been approved to accept aircraft
traveling to or from Cuba, and that it may immediately begin to accept
such aircraft. For reference purposes, approved airports will be listed
on the CBP Web site http://www.cbp.gov and in new paragraph (c) of
section 122.153. That paragraph as set forth in this document lists
only the three airports that are already authorized to accept such
aircraft--John F. Kennedy International Airport, Los Angeles
International Airport, and Miami International Airport--but will be
revised periodically to reflect additional airports that CBP has
approved.

Additional Requirements for Aircraft Traveling to or From Cuba

    All aircraft to which these amended regulations apply must be
properly licensed or otherwise authorized to travel between the United
States and Cuba. Several Federal agencies administer the necessary
authorizations, and it is the responsibility of the owner or person in
command of the aircraft to

[[Page 5060]]

ensure that the aircraft has the necessary authorization to travel.
    OFAC, an office within the U.S. Department of Treasury, administers
the Cuban Assets Control Regulations, 31 CFR part 515, which prohibit,
in relevant part, all persons subject to the jurisdiction of the United
States from engaging in travel-related transactions involving Cuba
unless authorized by OFAC. Persons transporting authorized travelers
between the United States and Cuba by international charter flights as
carrier service providers must also be authorized by OFAC to provide
this service.
    Additionally, an aircraft traveling between the United States and
Cuba may require a license from the Department of Commerce, the
Department of State, or the Department of Transportation, as
applicable. Note that, as a condition precedent for clearance, section
122.157 of the CBP regulations (19 CFR 122.157) requires the aircraft
commander to present to CBP a validated license issued by the
Department of Commerce or a license issued by the Department of State,
as well as documents required pursuant to 19 CFR part 122, subpart H.
Also, air carriers and other commercial operators are required to adopt
and implement the security requirements established by the
Transportation Security Administration for individuals, property, and
cargo aboard aircraft (see 49 CFR chapter XII, subchapter C (Civil
Aviation Security)), and ensure that any airport(s) to be served in
Cuba carry out effective security measures, in accordance with 49
U.S.C. 44907.

Inapplicability of Notice and Delayed Effective Date Requirements, the
Regulatory Flexibility Act, and Executive Order 12866

    The Administrative Procedure Act (APA) generally requires (with
exceptions) that the public be allowed to participate in agency
rulemaking. Normally, an agency publishes a notice of proposed
rulemaking in the Federal Register (5 U.S.C. 553(b)) providing
interested persons the opportunity to submit comments (5 U.S.C.
553(c)). The APA also provides (with exceptions) that a final rule
published after consideration of those comments not take effect for at
least 30 days from the date of publication (5 U.S.C. 553(d)). In
addition, the APA establishes requirements for adjudications required
by statute to be determined on the record after opportunity for an
agency hearing. (5 U.S.C. 554).
    The Department of Homeland Security is of the opinion that easing
travel restrictions between the United States and Cuba is a foreign
affairs function of the United States Government and that rules
implementing this function are exempt from Sec.  553 (Rulemaking) and
Sec.  554 (Adjudications) of the APA. In addition, the Department of
Homeland Security does not consider this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. The Department is of the opinion that
easing travel restrictions between the United States and Cuba is a
foreign affairs function of the United States Government and that rules
governing the conduct of this function are exempt from the requirements
of Executive Order 12866. Finally, because the Department is of the
opinion that this rule is not subject to the requirements of 5 U.S.C.
553, the Department does not consider this document to be subject to
the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.).

Paperwork Reduction Act

    The collection of information encompassed within this final rule is
contained in 19 CFR 122.153 and requires a written request to CBP
requesting approval for the airport to be able to accept aircraft
traveling to or from Cuba. The information will be used by CBP to
assist in determining if an airport is suitable to accommodate aircraft
traveling between the United States and Cuba. A request to approve this
information collection has been submitted to the Office of Management
and Budget (OMB) for review in accordance with the Paperwork Reduction
Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and a person
is not required to respond to, a collection of information unless the
collection of information displays a valid control number assigned by
OMB.
    The burden estimates for eligibility requirements and application
and approval procedure under Sec.  122.153 are as follows:
    Estimated annual reporting burden: 16 hours.
    Estimated number of respondents: 16.
    Estimated average annual burden per respondent: 1 hour.

Signing Authority

    This final rule is being issued in accordance with 8 CFR 2.1 and 19
CFR 0.2(a). Accordingly, this final rule is signed by the Secretary of
Homeland Security.

List of Subjects

8 CFR Part 234

    Air carriers, Aircraft, Airports, Aliens, Cuba.

19 CFR Part 122

    Administrative practice and procedure, Air carriers, Aircraft,
Airports, Alcohol and alcoholic beverages, Cigars and cigarettes, Cuba,
Customs duties and inspection, Drug traffic control, Freight,
Penalties, Reporting and recordkeeping requirements, Security measures.

Amendments to the Regulations

    Accordingly, part 234 of title 8 of the Code of Federal Regulations
and part 122 of title 19 CFR are amended as set forth below:

8 CFR Chapter 1

PART 234--DESIGNATION OF PORTS OF ENTRY FOR ALIENS ARRIVING BY
CIVIL AIRCRAFT

0
1. The general authority for part 234 continues to read as follows:

    Authority:  8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.

0
2. In Sec.  234.2, revise paragraph (a) to read as follows:

Sec.  234.2  Landing requirements.

    (a) Place of landing. Aircraft carrying passengers or crew required
to be inspected under the Act must land at the international air ports
of entry enumerated in part 100 of this chapter unless permission to
land elsewhere is first obtained from the Commissioner of U.S. Customs
and Border Protection (CBP) in the case of aircraft operated by
scheduled airlines, and in all other cases from the port director of
CBP or other CBP officer having jurisdiction over the CBP port of entry
nearest the intended place of landing. Notwithstanding the foregoing,
aircraft carrying passengers and crew required to be inspected under
the Act on flights originating in Cuba must land only at airports that
have been authorized by CBP pursuant to 19 CFR 122.153 as an airport of
entry for flights arriving from Cuba, unless advance permission to land
elsewhere has been obtained from the Office of Field Operations at CBP
Headquarters.
* * * * *

19 CFR Chapter 1

PART 122--AIR COMMERCE REGULATIONS

0
3. The general authority citation for part 122 continues to read as
follows:

    Authority:  5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436,
1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.

0
4. Revise Sec.  122.153 to read as follows:

[[Page 5061]]

Sec.  122.153  Limitations on airport of entry or departure.

    (a) Aircraft arrival and departure. The owner or person in command
of any aircraft clearing the United States for or entering the United
States from Cuba, whether the aircraft is departing on a temporary
sojourn or for export, must clear or obtain permission to depart from,
or enter at, the Miami International Airport, Miami, Florida; the John
F. Kennedy International Airport, Jamaica, New York; the Los Angeles
International Airport, Los Angeles, California; or any other airport
that has been approved by CBP pursuant to paragraph (b) of this
section, and must comply with the requirements in this part unless
otherwise authorized by the Assistant Commissioner, Office of Field
Operations, CBP Headquarters.
    (b) CBP approval of airports of entry and departure.
    (1) Airports eligible to apply. An international airport, landing
rights airport, or user fee airport (as defined in Sec.  122.1 and
described in subpart B of this part) that is equipped to facilitate
passport control and baggage inspection, and otherwise process
international flights and has an Office of Foreign Assets Control
(OFAC) licensed carrier service provider that is prepared to provide
flights between the airport and Cuba, may request CBP approval to
become an airport of entry and departure for aircraft traveling to or
from Cuba.
    (2) Application and approval procedure. The director of the port
authority governing the airport must send a written request to the
Assistant Commissioner, Office of Field Operations, CBP Headquarters,
requesting approval for the airport to be able to accept aircraft
traveling to or from Cuba. Upon determination that the airport is
suitable to provide such services, CBP will notify the requestor that
the airport has been approved to accept aircraft traveling to or from
Cuba, and that it may immediately begin to accept such aircraft. For
reference purposes, approved airports will be listed on the CBP Web
site and in updates to paragraph (c) of this section.
    (c) List of airports authorized to accept aircraft traveling to or
from Cuba. For reference purposes, the following is a list of airports
that have been authorized by CBP to accept aircraft traveling between
Cuba and the United States.

------------------------------------------------------------------------
                 Location                               Name
------------------------------------------------------------------------
Jamaica, New York.........................  John F. Kennedy
                                             International Airport
Los Angeles, California...................  Los Angeles International
                                             Airport
Miami, Florida............................  Miami International Airport
------------------------------------------------------------------------

0
5. In Sec.  122.154, revise paragraph (b)(2) to read as follows:

Sec.  122.154  Notice of arrival.

* * * * *
    (b) * * *
    (2) Directly to the CBP officer in charge at the applicable airport
authorized pursuant to Sec.  122.153.
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2011-2011 Filed 1-27-11; 8:45 am]
BILLING CODE 9111-14-P

Agency: