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, 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 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 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 § 553 (Rulemaking) and § 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 § 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

19 CFR Part 122

• Administrative practice and procedure
• Air carriers
• Aircraft
• Airports
• Alcohol and alcoholic beverages
• Cigars and cigarettes
• 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

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

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

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

19 CFR Chapter 1

PART 122—AIR COMMERCE REGULATIONS

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.

4. Revise § 122.153 to read as follows:

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