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[Federal Register: January 28, 2011 (Volume 76, Number 19)]
[Rules and Regulations]              =20
[Page 5058-5061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ja11-2]                        =20

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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

=20
Airports of Entry or Departure for Flights to and From Cuba

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Under Department of Homeland Security (DHS) regulations,=20
direct flights between the United States and Cuba must arrive at or=20
depart from one of three named U.S. airports: John F. Kennedy=20
International Airport, Los Angeles International Airport, or Miami=20
International Airport. This document amends current DHS regulations to=20
allow additional U.S. airports that are able to process international=20
flights to request approval of U.S. Customs and Border Protection (CBP)=20
to process authorized flights between the United States and Cuba. These=20
amendments are in accordance with the President's recent statement=20
easing the restrictions placed on flights to and from Cuba by, among=20
other things, providing that eligible airports may seek approval from

[[Page 5059]]

CBP to accommodate flights arriving from, or departing for, Cuba. This=20
statement builds upon the President's 2009 initiative to promote=20
democracy and human rights in Cuba by easing travel restrictions to=20
facilitate greater contact between separated family members in the=20
United States and Cuba.

DATES: Effective Date: January 28, 2011.

FOR FURTHER INFORMATION CONTACT: Arthur A.E. Pitts, Sr., U.S. Customs=20
and Border Protection, Office of Field Operations, 202-344-2752.

SUPPLEMENTARY INFORMATION:=20

Background

    Part 122 of the CBP regulations, subpart O, consisting of sections=20
122.151-122.158 (19 CFR =
122.151-122.158), sets forth special procedures=20
that apply to all aircraft (except public aircraft) entering or=20
departing the United States to or from Cuba. In particular, section=20
122.153 (19 CFR =
122.153) provides that the owner or person in command=20
of any aircraft clearing the U.S. for, or entering the U.S. from, Cuba=20
must clear or obtain permission to depart from, or enter at, the Miami=20
International Airport, Miami, Florida; the John F. Kennedy=20
International Airport, Jamaica, New York; or the Los Angeles=20
International Airport, Los Angeles, California. Additionally, section=20
122.154 of the CBP regulations (19 CFR =
122.154) requires the person in=20
command of the aircraft to provide advance notice of arrival at least=20
one hour before crossing the U.S. coast or border. This notice must be=20
given either through the Federal Aviation Administration flight=20
notification procedure or directly to the CBP officer in charge at one=20
of the designated airports, as applicable.
    Title 8 of the Code of Federal Regulations pertaining to landing=20
requirements for aliens arriving by civil aircraft also restricts=20
flights arriving from Cuba that are carrying passengers or crew that=20
are required to be inspected under section 235 of the Immigration and=20
Nationality Act (INA). Paragraph (a) of section 234.2 of title 8 (8 CFR=20
234.2(a)) requires that these flights land only at the same three=20
airports: John F. Kennedy, Los Angeles, or Miami, unless advance=20
permission to land elsewhere has been obtained from CBP's Office of=20
Field Operations.
    In a statement issued on January 14, 2011, the President announced=20
a series of changes to ease the restrictions on travel to and from Cuba=20
as part of an initiative to support the Cuban people's desire to freely=20
determine their country's future by, among other things, supporting=20
licensed travel and intensifying people-to-people exchanges. This=20
announcement builds on the President's April 13, 2009 initiative to=20
promote greater contact between separated family members in the United=20
States and Cuba.

Flights Between Cuba and Additional Airports in the United States

    In the January 14, 2011 statement, the President announced that=20
additional U.S. airports able to process international flights may=20
request CBP approval to accept direct flights to and from Cuba in=20
accordance with procedures to be established by CBP. Provided CBP is=20
satisfied that the airport is suitable to process these flights, CBP=20
will add the airport to the list of airports authorized for direct=20
flights to or from Cuba.
    In accordance with this statement, DHS is amending section 122.153=20
of title 19 of the Code of Federal Regulations (19 CFR =
122.153) to=20
provide that airports that meet existing CBP standards for=20
accommodating international flights may request CBP approval to accept=20
direct flights to and from Cuba. Properly authorized flights to and=20
from Cuba will be able to arrive at or depart from any U.S. airport=20
that CBP has approved. For reference purposes, CBP will provide a list=20
of authorized airports in section 122.153 as well as on the CBP Web=20
site, http://www.cbp.gov/.
    DHS is also amending section 122.154 of title 19 (19 CFR =
122.154)=20
and section 234.2 of title 8 (8 CFR =
234.2) to bring these sections into=20
conformity with revised section 122.153 of title 19. Revised paragraph=20
(b) of section 122.154 of title 19 indicates that when notice of=20
arrival is provided to CBP, it must be provided to the CBP officer in=20
charge at the applicable authorized airport. Revised paragraph (a) of=20
section 234.2 of title 8 indicates that aircraft arriving from Cuba=20
with passengers or crew required to be inspected under the INA must=20
land at one of the airports that CBP has authorized pursuant to 19 CFR=20
122.153. DHS is also revising paragraph (a) of section 234.2 to reflect=20
current CBP terminology.
    The requirements to obtain clearance and permission from CBP to=20
depart from or enter at the airport and to provide advance notice of=20
arrival will still apply. Clearance and permission to depart from or=20
enter at the airport must be obtained by contacting the CBP officer in=20
charge at the authorized airport at which the aircraft departs or=20
arrives. Advance notice of arrival must be provided either through the=20
Federal Aviation Administration flight notification procedure or=20
directly to the CBP officer in charge at the authorized airport of=20
arrival.

Eligibility Requirements and Application and Approval Procedure

    The regulations are amended to set forth eligibility requirements=20
and application and approval procedures for airports seeking approval=20
to accept aircraft traveling between the United States and Cuba. (The=20
three airports currently referenced in section 122.153 of the=20
regulations are already approved to accept aircraft traveling between=20
the United States and Cuba and will not need to seek CBP approval under=20
this procedure.)
    To be eligible to request approval to accept flights to and from=20
Cuba, an airport must be an international airport, landing rights=20
airport, or user fee airport, as defined and described in part 122 of=20
the CBP regulations (19 CFR part =
122) and have adequate and up-to-date=20
staffing, equipment, and facilities to process international traffic.=20
In addition, the airport must have an Office of Foreign Assets Control=20
(OFAC) licensed carrier service provider that is prepared to provide=20
flights between the airport and Cuba. The director of the port=20
authority governing the airport seeking approval must send a written=20
request to the Assistant Commissioner, Office of Field Operations, CBP=20
Headquarters (1300 Pennsylvania Avenue, NW., Washington, DC 20229).
    After CBP determines that the airport is suitable to accommodate=20
flights traveling between the United States and Cuba, CBP will notify=20
the requestor that the airport has been approved to accept aircraft=20
traveling to or from Cuba, and that it may immediately begin to accept=20
such aircraft. For reference purposes, approved airports will be listed=20
on the CBP Web site http://www.cbp.gov/ and in new =
paragraph (c) of=20
section 122.153. That paragraph as set forth in this document lists=20
only the three airports that are already authorized to accept such=20
aircraft--John F. Kennedy International Airport, Los Angeles=20
International Airport, and Miami International Airport--but will be=20
revised periodically to reflect additional airports that CBP has=20
approved.

Additional Requirements for Aircraft Traveling to or From Cuba

    All aircraft to which these amended regulations apply must be=20
properly licensed or otherwise authorized to travel between the United=20
States and Cuba. Several Federal agencies administer the necessary=20
authorizations, and it is the responsibility of the owner or person in=20
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=20
the Cuban Assets Control Regulations, 31 CFR part =
515, which prohibit,=20
in relevant part, all persons subject to the jurisdiction of the United=20
States from engaging in travel-related transactions involving Cuba=20
unless authorized by OFAC. Persons transporting authorized travelers=20
between the United States and Cuba by international charter flights as=20
carrier service providers must also be authorized by OFAC to provide=20
this service.
    Additionally, an aircraft traveling between the United States and=20
Cuba may require a license from the Department of Commerce, the=20
Department of State, or the Department of Transportation, as=20
applicable. Note that, as a condition precedent for clearance, section=20
122.157 of the CBP regulations (19 CFR =
122.157) requires the aircraft=20
commander to present to CBP a validated license issued by the=20
Department of Commerce or a license issued by the Department of State,=20
as well as documents required pursuant to 19 CFR part =
122, subpart H.=20
Also, air carriers and other commercial operators are required to adopt=20
and implement the security requirements established by the=20
Transportation Security Administration for individuals, property, and=20
cargo aboard aircraft (see 49 CFR chapter XII, subchapter C (Civil=20
Aviation Security)), and ensure that any airport(s) to be served in=20
Cuba carry out effective security measures, in accordance with 49=20
U.S.C. 44907.

Inapplicability of Notice and Delayed Effective Date Requirements, the=20
Regulatory Flexibility Act, and Executive Order 12866

    The Administrative Procedure Act (APA) generally requires (with=20
exceptions) that the public be allowed to participate in agency=20
rulemaking. Normally, an agency publishes a notice of proposed=20
rulemaking in the Federal Register (5 U.S.C. 553(b)) providing=20
interested persons the opportunity to submit comments (5 U.S.C.=20
553(c)). The APA also provides (with exceptions) that a final rule=20
published after consideration of those comments not take effect for at=20
least 30 days from the date of publication (5 U.S.C. 553(d)). In=20
addition, the APA establishes requirements for adjudications required=20
by statute to be determined on the record after opportunity for an=20
agency hearing. (5 U.S.C. 554).
    The Department of Homeland Security is of the opinion that easing=20
travel restrictions between the United States and Cuba is a foreign=20
affairs function of the United States Government and that rules=20
implementing this function are exempt from Sec.  553 (Rulemaking) and=20
Sec.  554 (Adjudications) of the APA. In addition, the Department of=20
Homeland Security does not consider this rule to be a ``significant=20
regulatory action'' under Executive Order 12866, section 3(f),=20
Regulatory Planning and Review. The Department is of the opinion that=20
easing travel restrictions between the United States and Cuba is a=20
foreign affairs function of the United States Government and that rules=20
governing the conduct of this function are exempt from the requirements=20
of Executive Order 12866. Finally, because the Department is of the=20
opinion that this rule is not subject to the requirements of 5 U.S.C.=20
553, the Department does not consider this document to be subject to=20
the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et=20
seq.).

Paperwork Reduction Act

    The collection of information encompassed within this final rule is=20
contained in 19 CFR =
122.153 and requires a written request to CBP=20
requesting approval for the airport to be able to accept aircraft=20
traveling to or from Cuba. The information will be used by CBP to=20
assist in determining if an airport is suitable to accommodate aircraft=20
traveling between the United States and Cuba. A request to approve this=20
information collection has been submitted to the Office of Management=20
and Budget (OMB) for review in accordance with the Paperwork Reduction=20
Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and a =
person=20
is not required to respond to, a collection of information unless the=20
collection of information displays a valid control number assigned by=20
OMB.
    The burden estimates for eligibility requirements and application=20
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=20
CFR 0.2(a). Accordingly, this final rule is signed by the Secretary of=20
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,=20
Airports, Alcohol and alcoholic beverages, Cigars and cigarettes, Cuba,=20
Customs duties and inspection, Drug traffic control, Freight,=20
Penalties, Reporting and recordkeeping requirements, Security measures.

Amendments to the Regulations

    Accordingly, part 234 of title 8 of the Code of Federal Regulations=20
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=20
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=20
to be inspected under the Act must land at the international air ports=20
of entry enumerated in part 100 of this chapter unless permission to=20
land elsewhere is first obtained from the Commissioner of U.S. Customs=20
and Border Protection (CBP) in the case of aircraft operated by=20
scheduled airlines, and in all other cases from the port director of=20
CBP or other CBP officer having jurisdiction over the CBP port of entry=20
nearest the intended place of landing. Notwithstanding the foregoing,=20
aircraft carrying passengers and crew required to be inspected under=20
the Act on flights originating in Cuba must land only at airports that=20
have been authorized by CBP pursuant to 19 CFR =
122.153 as an airport of=20
entry for flights arriving from Cuba, unless advance permission to land=20
elsewhere has been obtained from the Office of Field Operations at CBP=20
Headquarters.
* * * * *

19 CFR Chapter 1

PART 122--AIR COMMERCE REGULATIONS

0
3. The general authority citation for part 122 continues to read as=20
follows:

    Authority:  5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436,=20
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=20
of any aircraft clearing the United States for or entering the United=20
States from Cuba, whether the aircraft is departing on a temporary=20
sojourn or for export, must clear or obtain permission to depart from,=20
or enter at, the Miami International Airport, Miami, Florida; the John=20
F. Kennedy International Airport, Jamaica, New York; the Los Angeles=20
International Airport, Los Angeles, California; or any other airport=20
that has been approved by CBP pursuant to paragraph (b) of this=20
section, and must comply with the requirements in this part unless=20
otherwise authorized by the Assistant Commissioner, Office of Field=20
Operations, CBP Headquarters.
    (b) CBP approval of airports of entry and departure.
    (1) Airports eligible to apply. An international airport, landing=20
rights airport, or user fee airport (as defined in Sec.  122.1 and=20
described in subpart B of this part) that is equipped to facilitate=20
passport control and baggage inspection, and otherwise process=20
international flights and has an Office of Foreign Assets Control=20
(OFAC) licensed carrier service provider that is prepared to provide=20
flights between the airport and Cuba, may request CBP approval to=20
become an airport of entry and departure for aircraft traveling to or=20
from Cuba.
    (2) Application and approval procedure. The director of the port=20
authority governing the airport must send a written request to the=20
Assistant Commissioner, Office of Field Operations, CBP Headquarters,=20
requesting approval for the airport to be able to accept aircraft=20
traveling to or from Cuba. Upon determination that the airport is=20
suitable to provide such services, CBP will notify the requestor that=20
the airport has been approved to accept aircraft traveling to or from=20
Cuba, and that it may immediately begin to accept such aircraft. For=20
reference purposes, approved airports will be listed on the CBP Web=20
site and in updates to paragraph (c) of this section.
    (c) List of airports authorized to accept aircraft traveling to or=20
from Cuba. For reference purposes, the following is a list of airports=20
that have been authorized by CBP to accept aircraft traveling between=20
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=20
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
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