Flights to and From Cuba, 14948-14953 [2016-06371]
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Federal Register / Vol. 81, No. 54 / Monday, March 21, 2016 / Rules and Regulations
accounting would also permit the
individual who is the subject of a record
to impede the investigation, to tamper
with witnesses or evidence, and to
avoid detection or apprehension, which
would undermine the entire
investigative process.
(ii) From subsection (e)(8) (Notice on
Individuals) because compliance would
interfere with DHS’s ability to obtain,
serve, and issue subpoenas, warrants,
and other law enforcement mechanisms
that may be filed under seal and could
result in disclosure of investigative
techniques, procedures, and evidence.
(iii) From subsection (g) (Civil
Remedies) to the extent that the system
is exempt from other specific
subsections of the Privacy Act.
(b) Additionally, this system contains
records or information recompiled from
or created from information contained
in other systems of records that are
exempt from certain provisions of the
Privacy Act. For these records or
information only, the Secretary of
Homeland Security, pursuant to 5
U.S.C. 552a(j)(2), has exempted this
system from the following provisions of
the Privacy Act: 5 U.S.C. 552a(c)(3),
(c)(4); (d)(1)–(4); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and
(e)(8); (f); and (g). Additionally, the
Secretary of Homeland Security,
pursuant to 5 U.S.C. 552a(k)(2), has
exempted this system from the
following provisions of the Privacy Act,
5 U.S.C. 552a(c)(3); (d)(1)–(4); (e)(1),
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f).
Exemptions from these particular
subsections are justified, on a case-bycase basis to be determined at the time
a request is made, for the following
reasons:
(i) From subsection (c)(3) and (c)(4)
(Accounting for Disclosures) because
release of the accounting of disclosures
could alert the subject of an
investigation of an actual or potential
criminal, civil, or regulatory violation to
the existence of that investigation and
reveal investigative interest on the part
of DHS as well as the recipient agency.
Disclosure of the accounting would
therefore present a serious impediment
to law enforcement efforts and/or efforts
to preserve national security. Disclosure
of the accounting would also permit the
individual who is the subject of a record
to impede the investigation, to tamper
with witnesses or evidence, and to
avoid detection or apprehension, which
would undermine the entire
investigative process.
(ii) From subsection (d) (Access to
Records) because access to the 6records
contained in this system of records
could inform the subject of an
investigation of an actual or potential
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criminal, civil, or regulatory violation to
the existence of that investigation and
reveal investigative interest on the part
of DHS or another agency. Access to the
records could permit the individual
who is the subject of a record to impede
the investigation, and to avoid detection
or apprehension. Amendment of the
records could interfere with ongoing
investigations and law enforcement
activities and would impose an
unreasonable administrative burden by
requiring investigations to be
continually reinvestigated. In addition,
permitting access and amendment to
such information could disclose
security-sensitive information that
could be detrimental to homeland
security.
(iii) From subsection (e)(1) (Relevancy
and Necessity of Information) because
in the course of investigations into
potential violations of federal law, the
accuracy of information obtained or
introduced occasionally may be unclear,
or the information may not be strictly
relevant or necessary to a specific
investigation. In the interests of effective
law enforcement, it is appropriate to
retain all information that may aid in
establishing patterns of unlawful
activity.
(iv) From subsection (e)(2) (Collection
of Information from Individuals)
because requiring that information be
collected from the subject of an
investigation would alert the subject to
the nature or existence of the
investigation, thereby interfering with
that investigation and related law
enforcement activities.
(v) From subsection (e)(3) (Notice to
Subjects) because providing such
detailed information could impede law
enforcement by compromising the
existence of a confidential investigation
or reveal the identity of witnesses or
confidential informants.
(vi) From subsections (e)(4)(G),
(e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules),
because portions of this system are
exempt from the individual access
provisions of subsection (d) for the
reasons noted above, and therefore DHS
is not required to establish
requirements, rules, or procedures with
respect to such access. Providing notice
to individuals with respect to existence
of records pertaining to them in the
system of records or otherwise setting
up procedures pursuant to which
individuals may access and view
records pertaining to themselves in the
system would undermine investigative
efforts and reveal the identities of
witnesses, potential witnesses, and
confidential informants.
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(vii) From subsection (e)(5)
(Collection of Information) because with
the collection of information for law
enforcement purposes, it is impossible
to determine in advance what
information is accurate, relevant, timely,
and complete. Compliance with
subsection (e)(5) would preclude DHS
agents from using their investigative
training and exercise of good judgment
to both conduct and report on
investigations.
(viii) From subsection (e)(8) (Notice
on Individuals) because compliance
would interfere with DHS’s ability to
obtain, serve, and issue subpoenas,
warrants, and other law enforcement
mechanisms that may be filed under
seal and could result in disclosure of
investigative techniques, procedures,
and evidence.
(ix) From subsection (g) (Civil
Remedies) to the extent that the system
is exempt from other specific
subsections of the Privacy Act.
*
*
*
*
*
Dated: March 2, 2016.
Karen L. Neuman,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2016–06233 Filed 3–18–16; 8:45 am]
BILLING CODE 9111–14–P
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 234
U.S. Customs and Border Protection
19 CFR Part 122
[USCBP–2016–0015; CBP Dec 16–06]
RIN 1651–AB10
Flights to and From Cuba
U.S. Customs and Border
Protection, DHS.
ACTION: Interim final rule; request for
comments.
AGENCY:
Current U.S. Customs and
Border Protection (CBP) regulations
contain a separate subpart O addressing
flights to and from Cuba. The provisions
in that subpart are either obsolete due
to intervening regulatory changes or are
duplicative of regulations applicable to
all other similarly situated international
flights. This rule therefore amends the
regulations by removing subpart O.
These amendments are consistent with
the President’s policy promoting the
normalization of relations between the
United States and Cuba.
SUMMARY:
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Federal Register / Vol. 81, No. 54 / Monday, March 21, 2016 / Rules and Regulations
This interim final rule is
effective on March 21, 2016. Comments
must be received by April 20, 2016.
ADDRESSES: You may submit comments,
identified by docket number, by one of
the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments
via docket number USCBP–2016–0015.
• Mail: Border Security Regulations
Branch, Regulations and Rulings, Office
of International Trade, U.S. Customs
and Border Protection, 90 K Street NE.,
10th Floor, Washington, DC 20229–
1177.
Instructions: All submissions received
must include the agency name and
docket number for this rulemaking. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov. Comments
submitted will be available for public
inspection during regular business days
between the hours of 9:00 a.m. and 4:30
p.m. at Regulations and Rulings, Office
of International Trade, U.S. Customs
and Border Protection, 90 K Street NE.,
10th Floor, Washington, DC 20229–
1177. Arrangements to inspect
submitted comments should be made in
advance by calling Mr. Joseph Clark at
(202) 325–0118.
FOR FURTHER INFORMATION CONTACT:
Arthur A.E. Pitts, Sr., U.S. Customs and
Border Protection, Office of Field
Operations, by phone at (202) 344–2752
or by email at arthur.a.pitts@
cbp.dhs.gov.
DATES:
SUPPLEMENTARY INFORMATION:
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Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of the interim
final rule. DHS also invites comments
that relate to the economic,
environmental, or federalism effects that
might result from this interim final rule.
Comments that will provide the most
assistance to DHS will reference a
specific portion of the interim final rule,
explain the reason for any
recommended change, and include data,
information, or authority that support
such recommended change.
Background
As part of the President’s new
approach to Cuba policy, DHS and CBP
examined their regulations and policies
pertaining to Cuba, particularly as they
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relate to air travel between the two
countries.1 The existing regulations
pertaining to flights to and from Cuba
(codified at 19 CFR part 122, subpart O)
are no longer needed because they are
either obsolete in light of intervening
regulatory changes or substantively
identical to the general CBP
requirements applicable to aircraft
seeking to fly into or out of the United
States. Accordingly, DHS is amending
19 CFR part 122 to remove subpart O
and to make conforming amendments to
other provisions.
Under 19 CFR part 122, subpart O,
only certain CBP-approved airports may
accept aircraft traveling to or from Cuba.
Section 122.153 (19 CFR 122.153)
provides a process by which a port
authority must submit a written request
to CBP requesting that an airport receive
approval to accept flights to or from
Cuba. Section 122.153 also contains a
list of approved airports. The remaining
sections in subpart O pertain to other
requirements for flights to and from
Cuba, including notice of arrival,
documents to be presented upon arrival,
the release of passengers arriving from
Cuba, and documents required for
clearance. None of the regulatory
requirements that apply specifically to
flights to and from Cuba is mandated by
statute, but rather are authorized by the
broad authority granted to the Secretary
of Homeland Security respecting all
aircraft arriving in and departing from
the United States under 19 U.S.C. 1433,
1644 and 1644a.2
Prior to 2011, only three U.S. airports
were authorized to accept flights to and
from Cuba: John F. Kennedy
International Airport, Los Angeles
International Airport, and Miami
International Airport. In 2011, the
President announced a series of changes
to ease certain restrictions on travel to
and from Cuba.3 The announcement
stated that the regulation should be
modified to allow a U.S. airport to apply
to accept authorized flights if the airport
has adequate customs and immigration
capabilities and if an authorized carrier
has expressed an interest in providing
1 See Fact Sheet: Charting a New Course on Cuba,
The White House (Dec. 17, 2014), https://
www.whitehouse.gov/the-press-office/2014/12/17/
statement-president-cuba-policy-changes.
2 Specifically, 19 U.S.C. 1433(c) provides that the
pilot of any aircraft arriving in the United States or
the U.S. Virgin Islands from any foreign location is
required to comply with such advance notification,
arrival reporting, and landing requirements as
regulations may require. Under 19 U.S.C. 1644 and
1644a, the Secretary can designate ports of entry for
aircraft and apply vessel entry and clearance laws
and regulations to civil aircraft.
3 Reaching Out to the Cuban People, The White
House (Jan. 14, 2011), https://www.whitehouse.gov/
the-press-office/2011/01/14/reaching-out-cubanpeople.
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14949
service between Cuba and the airport.4
In response, DHS issued a final rule in
the Federal Register (76 FR 5058) on
January 28, 2011, that amended 19 CFR
122.153 to allow additional airports to
request approval to accept Cuba flights.
On December 17, 2014, the President
announced that the United States would
begin the process of normalizing
relations with Cuba, including taking
steps to re-establish diplomatic relations
(which occurred on July 20, 2015),
adjust regulations to more effectively
empower the Cuban people, and
facilitate an expansion of authorized
travel under general licenses for the
twelve existing categories of travel to
Cuba authorized by law.5 As part of the
President’s new approach to relations
with Cuba, the Department of the
Treasury’s Office of Foreign Assets
Control (OFAC), and the Department of
Commerce’s Bureau of Industry and
Security (BIS) have issued five sets of
amendments to the Cuban Assets
Control Regulations (CACR) and Export
Administration Regulations (EAR),
respectively.6 In February 2016,
representatives from the Departments of
State and Transportation signed an
arrangement with Cuba that provides
the basis for the restoration of scheduled
air services between the United States
and Cuba.7
In light of these intervening regulatory
changes, the regulations specifically
addressing flights to and from Cuba in
19 CFR part 122, subpart O are no
longer necessary. Accordingly, DHS is
removing that subpart. DHS is also
making conforming amendments to
certain provisions in titles 8 and 19 of
the CFR: 8 CFR 234.2, 19 CFR 122.31,
and 19 CFR 122.42. The removal of part
122, subpart O, will make clear that
flights to and from Cuba are subject to
the same entry and clearance
requirements in 19 CFR part 122 as all
other similarly situated international
flights.
Removal of 19 CFR Part 122, Subpart O
Part 122, subpart O, of title 19 CFR,
consists of eight sections numbered
4 Id.
5 Fact Sheet: Charting a New Course on Cuba, The
White House (Dec. 17, 2014), https://
www.whitehouse.gov/the-press-office/2014/12/17/
fact-sheet-charting-new-course-cuba.
6 See 81 FR 13989 (Mar. 16, 2016), 81 FR 4583
(Jan. 27, 2016), 80 FR 56915 (Sept. 21, 2015), 80 FR
34053 (June 15, 2015), and 80 FR 2291 (Jan. 16,
2015) (amending the CACR); 81 FR 13972 (Mar. 16,
2016), 81 FR 4580 (Jan. 27, 2016), 80 FR 56898
(Sept. 21, 2015), 80 FR 43314 (July 22, 2015), and
80 FR 2286 (Jan. 16, 2015) (amending the EAR).
7 United States, Cuba Sign Arrangement Restoring
Scheduled Air Service, U.S. Dep’t of Transp. (Feb.
16, 2016), https://www.transportation.gov/briefingroom/united-states-cuba-sign-arrangementrestoring-scheduled-air-service.
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Federal Register / Vol. 81, No. 54 / Monday, March 21, 2016 / Rules and Regulations
from 122.151 to 122.158 (19 CFR
122.151–122.158). A description of each
section follows, along with an
explanation as to why it is no longer
necessary, desirable, or consistent with
the U.S. government’s current approach
towards Cuba.
Section 122.151 (19 CFR 122.151)
consists of two definitions, one for the
‘‘United States’’ and one for ‘‘Cuba,’’
which apply within subpart O. The
definition for the ‘‘United States’’ is
duplicative of the one in 19 CFR
122.1(l), and is therefore unnecessary.
‘‘Cuba’’ is not defined in 19 CFR 122.1,
but this definition is also unnecessary in
light of the removal of the special
regulations governing flights to and
from Cuba.
Section 122.152 (19 CFR 122.152),
regarding the application of subpart O,
provides that the subpart applies to all
aircraft entering or departing the United
States to or from Cuba, except for public
aircraft. As explained below, the other
sections in subpart O are unnecessary,
so there is no longer a need for this
section.
Section 122.153 (19 CFR 122.153)
covers the limitation on airports of entry
and departure for flights to and from
Cuba. Under this section, flights to or
from Cuba are limited to the Miami
International Airport, John F. Kennedy
International Airport, Los Angeles
International Airport, or any other
airport approved by CBP according to
the procedures in paragraph (b).
Paragraph (b) of § 122.153 outlines the
approval process, which allows an
international airport, landing rights
airport, or user fee airport to request
CBP approval to become an airport of
entry and departure for aircraft traveling
to and from Cuba. Under this process,
CBP would determine whether the
airport is properly equipped to facilitate
passport control and baggage inspection
and whether there is an OFAC licensed
carrier that is prepared to provide flights
between the airport and Cuba.
Approved airports are listed on the CBP
Web site and in updates to a list of
approved airports in paragraph (c) of
§ 122.153.
The limitations regarding airports
authorized to provide flights to and
from Cuba are not required by statute.
The regulation, now codified at 19 CFR
122.153, was originally promulgated in
1980 and appeared at 19 CFR 6.3a. The
preamble for the Federal Register
document implementing the regulation
stated that ‘‘[b]ecause of the present
situation involving aliens attempting to
reach the U.S. from Cuba, there is
serious reason to believe that unsafe and
unlawful means of transportation will
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be utilized.’’ 8 As to the authority
underlying the new limits, the preamble
stated the rule was being undertaken in
accordance with regulations
propounded by the Federal Aviation
Administration (14 CFR 91.101), the
Immigration and Naturalization Service
(8 CFR parts 231 and 239), and the
Department of Commerce (15 CFR
371.19). None of these authorities limits
the number of airports that can service
flights to or from Cuba or requires an
application process to qualify airports to
service Cuban flights in particular.
DHS has determined that the approval
process set forth in § 122.153(b) is no
longer necessary because the criteria for
obtaining approval to accept flights to
and from Cuba are not materially
different than the requirements
applicable to all other similarly situated
airports and aircraft operators seeking to
conduct international flights. In
evaluating requests by aircraft for
permission to land at an international,
landing rights or user fee airport, CBP
researches and evaluates the impact on
the overall operations at a given airport
regardless of its classification. CBP also
evaluates, in consultation with the
airport authority where appropriate, the
ability of the proposed airport to handle
the flight, travelers, baggage, and cargo.
CBP ensures that each airport for which
a new international flight is requested is
equipped to facilitate passport control
and baggage inspection, and has the
appropriate infrastructure to properly
service the plane from the runway to its
assigned gate.9
8 45
FR 29247 (May 1, 1980).
aircraft arriving from areas south of the
United States are subject to a modified process.
Such flights are subject to specific notice of arrival
requirements and must land at the airport listed
under 19 CFR 122.24(b) that is nearest the point at
which the aircraft crosses the border, unless an
overflight exemption is granted. See 19 CFR
122.23–122.25. In designating the airports listed in
19 CFR 122.24(b), CBP has determined that these
airports have adequate facilities and resources
available to inspect and process aircraft subject to
the regulation and their attendant crew, passengers,
and cargo. If an exemption is sought pursuant to 19
CFR 122.25, CBP considers whether the proposed
destination airport has adequate resources to handle
the flight, travelers, baggage, and cargo, just as it
considers these factors when deciding whether to
grant permission to land a new international flight
that is not subject to 19 CFR 122.24. This modified
process does not apply to (1) public aircraft, (2)
aircraft operated on a regularly published schedule,
pursuant to a certificate of public convenience and
necessity or foreign aircraft permit issued by the
Department of Transportation, authorizing
interstate, overseas air transportation; or (3) aircraft
with a seating capacity of more than 30 passengers
or a maximum payload capacity of more than 7,500
pounds which are engaged in air transportation for
compensation or hire on demand. See 19 CFR
122.23(a). With the removal of 19 CFR part 122,
subpart O, the requirements in 19 CFR 122.23–
122.25 would apply to flights to and from Cuba that
fall within the scope of those regulations.
9 Certain
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The requirement in § 122.153 that the
requesting airport must have an OFAClicensed carrier service provider that is
prepared to provide flights between the
airport and Cuba is obsolete. OFAC no
longer requires an air carrier to obtain
a specific license to provide carrier
services to or from Cuba. Rather, an air
carrier may fly to or from Cuba pursuant
to a general license under the CACR, so
long as the air carrier is providing
carrier services in connection with
travel or transportation of persons,
baggage, or cargo that is itself authorized
under the CACR, 31 CFR part 515, and
is no longer required to obtain a specific
license from OFAC.10 See 31 CFR
515.317 and 515.572(a).
Accordingly, by eliminating
§ 122.153, CBP will make clear that it
follows the same process in certifying
flights to and from Cuba as it does with
all international flights. Aircraft
operators will be required to follow the
usual procedures for international
flights found in governing law,
including the regulations in 19 CFR part
122, subpart B, for obtaining permission
to land and to secure new international
routes. The specific requirements vary
depending on whether the airport is an
international airport, a landing rights
airport, or a user fee airport. See 19 CFR
122.11–122.13 (international airports);
122.14 (landing rights airports); 122.15
(user fee airports).
Section 122.154 (19 CFR 122.154) sets
forth notice of arrival requirements.
This section provides that all aircraft
entering the United States from Cuba
(except for OFAC-approved scheduled
commercial aircraft of a scheduled
airline) must give advance notice of
arrival, not less than one hour before
crossing the U.S. coast or border. The
notice must provide the type of aircraft;
name of the aircraft commander;
number of U.S. citizen and alien
passengers; place of last foreign
departure; estimated time of crossing
the border; and estimated time of
arrival. Section 122.154 is being
removed as it is redundant with other
provisions within part 122. Generally,
all inbound aircraft (not just those
arriving from Cuba) are required to
10 According to OFAC, ‘‘A general license
authorizes persons subject to U.S. jurisdiction to
provide carrier services by vessel or aircraft to,
from, or within Cuba, in connection with
authorized travel, without the need for a specific
license.’’ Frequently Asked Questions Related to
Cuba, U.S. Department of Treasury (last updated
Mar. 15, 2016), https://www.treasury.gov/resourcecenter/sanctions/Programs/Documents/cuba_faqs_
new.pdf. See also 31 CFR 501.801(a) (‘‘General
licenses have been issued authorizing under
appropriate terms and conditions certain types of
transactions which are subject to the prohibitions
contained in this chapter.’’).
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provide notice to CBP prior to arriving
in the United States. Section 122.22 (19
CFR 122.22) generally requires all
private aircraft pilots to transmit notice
of arrival and manifest information to
CBP at least 60 minutes prior to
departure of the aircraft from the foreign
port or place.11 The data required under
§ 122.22 includes the data required
under § 122.154. Section 122.23 (19 CFR
122.23) requires similar notice of arrival
information for certain non-public
aircraft arriving from locations south of
the United States. Section 122.31 (19
CFR 122.31) requires advance notice of
arrival from all other aircraft, with the
exception of aircraft of a scheduled
airline arriving under a regular
schedule. In addition, 19 CFR 122.49a,
122.49b, 122.49c, and 8 CFR 231.1(a)
require commercial carriers to transmit
electronic manifest information for all
passengers and crew.
Section 122.155 (19 CFR 122.155)
requires the aircraft commander of a
flight arriving from Cuba to present to
CBP the manifest required by 8 CFR
231.1(b),12 and the documents required
by subpart E of 19 CFR part 122, upon
arrival in the United States. As
§ 122.155 merely cross-references
subpart E of 19 CFR part 122 and 8 CFR
231.1(b), the information referred to in
this section is already required of all
aircraft that are subject to the cited
provisions. Furthermore, 19 CFR 122.22
imposes electronic manifest
requirements on private aircraft that are
commensurate with the electronic
manifest requirements for commercial
aircraft contained in subpart E.
Section 122.156 (19 CFR 122.156)
concerns the release of passengers and
aircraft. This section provides that
neither passengers arriving from Cuba,
nor the aircraft, will be released by
Customs before the passengers are
released by the Immigration and
Naturalization Service or a Customs
officer acting on behalf of that agency.
This section is outdated due to the
reorganization in 2002 which prompted
the creation of CBP, in which customs
and immigration functions were
consolidated.13 Moreover, the
11 If the United States is not the original
destination and the flight is diverted to the United
States due to an emergency, the information is
required no later than 30 minutes prior to arrival.
19 CFR 122.22(b)(2)(ii).
12 While 19 CFR 122.155 refers to the manifest
required by 8 CFR 231.1(b), § 231.1(b) actually
requires the submission of a properly completed
Arrival/Departure Record, Form I–94 for each
arriving passenger, with certain exceptions;
§ 231.1(a) requires the submission of an electronic
manifest.
13 Pursuant to the Homeland Security Act of 2002,
Public Law 107–296, 116 Stat. 2135 (HSA), as of
March 1, 2003, the legacy Immigration and
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requirement that all arriving persons
report to a Customs officer and that all
aliens seeking admission undergo
immigration inspection is set forth in
various provisions in the United States
Code and titles 19 and 8 of the CFR.14
Clearance of aircraft departing the
United States is covered generally in 19
CFR part 122, subparts F, G, H and I.
Section 122.157 (19 CFR 122.157) sets
forth the documents that are required to
clear an aircraft for departure. Under
this section, the aircraft commander
must present documents required by
subpart H and a license issued by the
Department of Commerce under 15 CFR
371.19 or by the Department of State
under 22 CFR part 123. This section is
outdated and is no longer necessary.
First, 15 CFR 371.19 no longer exists.
Under the current regulations, flights on
a ‘‘temporary sojourn’’ to or from Cuba
generally qualify for a license exception
under the EAR provided they meet
certain conditions, which are
administered by BIS. In general, flying
an aircraft to Cuba, even temporarily,
constitutes an export or re-export to
Cuba.15 However, the governing EAR
provision authorizes departure from the
United States of foreign registry civil
aircraft on temporary sojourn in the
United States and of U.S. civil aircraft
for temporary sojourn abroad.16 Thus, if
Naturalization Service (INS) of the Department of
Justice and the legacy Customs Service of the
Department of the Treasury were transferred to DHS
and reorganized to become CBP, U.S. Immigration
and Customs Enforcement (ICE), and U.S.
Citizenship and Immigration Services (USCIS). All
inspectional functions previously assigned to legacy
INS were transferred to DHS. As provided in 6
U.S.C. 552(d), references relating to an agency that
is transferred to DHS in statutes, executive orders,
rules, regulations, directives, or delegations of
authority that precede the effective date of the HSA
are deemed to refer to DHS, its officers, employees,
or agents, or to its corresponding organizational
units or functions.
14 See, e.g., 19 U.S.C. 1459(b) and (d) (requiring
all individuals arriving aboard a reported
conveyance to report to the designated customs
facility and prohibiting departure from the facility
until authorized to do so by the appropriate
customs officer); 8 U.S.C. 235(a) (requiring all aliens
who are applicants for admission or otherwise
seeking admission or readmission to the United
States to undergo an immigration inspection); 8
CFR 235.1(a) (requiring application to lawfully
enter the United States to be made in person to an
immigration officer at a U.S. port-of-entry); and 8
CFR 234.2(c) (prohibiting aircraft carrying
passengers or crew required to be inspected from
discharging or permitting to depart any passenger
or crewman without permission from an
immigration officer).
15 Cuba, Bureau of Industry and Security,
https://www.bis.doc.gov/index.php/policyguidance/country-guidance/sanctioneddestinations/cuba (last accessed Feb. 24, 2016); see
also 15 CFR 746.2(a) (requiring a license to export
or re-export all items subject to the EAR to Cuba,
except as provided in the regulation).
16 15 CFR 740.15. Former 15 CFR 371.19, which
is referenced in 19 CFR 122.157, described general
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
14951
the aircraft departing the United States
for Cuba meets the ‘‘temporary sojourn’’
definition to qualify for the license
exception, there is no license
requirement imposed on such aircraft.
Second, clearance requirements for all
international flights are currently
covered under 19 CFR part 122,
subparts C, F, G and H. 22 CFR part 123,
which pertains to the importation or
exportation of certain defense articles,
contains other potential requirements
for clearance. These requirements,
however, are not specific to flights to
and from Cuba and would apply
regardless of the removal of 19 CFR part
122, subpart O.
Section 122.158 (19 CFR 122.158)
states that all other provisions of part
122 relating to entry and clearance of
aircraft are applicable to aircraft subject
to subpart O. This section is duplicative
of 19 CFR 122.0(a), which provides that
the regulations in part 122 relate to the
entry and clearance of aircraft and the
transportation of persons and cargo by
aircraft, and are applicable to all air
commerce.
For the reasons discussed above, DHS
has determined that 19 CFR part 122,
subpart O is no longer necessary to
regulate air travel to and from Cuba due
to changes in the regulatory
requirements governing travel and trade
between the United States and Cuba,
and the implementation of robust
reporting requirements that apply to
international flights generally.
Therefore, DHS is amending 19 CFR
part 122 to remove 19 CFR part 122,
subpart O, pertaining to flights to and
from Cuba. Flights to and from Cuba
will continue to be subject to the
remaining entry and clearance
requirements in 19 CFR part 122, as
well as all other legal requirements
relating to travel and trade between the
United States and Cuba including, but
not limited to, the CACR and the EAR.
Conforming Amendments
DHS is amending various sections in
title 8 CFR and title 19 CFR to bring
these sections into conformity with the
removal of 19 CFR part 122, subpart O.
These amendments are described below.
Section 234.2 of title 8 (8 CFR 234.2)
sets forth landing requirements for
aircraft carrying passengers or crew
required to be inspected under the
Immigration and Nationality Act.
Section 234.2(a) specifies the general
licensing requirements for aircraft on a temporary
sojourn to or from the United States, reflecting a
prior regulatory regime that relied on general
licenses, rather than license exceptions. See 61 FR
12714, 12778 (Mar. 25, 1996) (interim rule replacing
general license requirement with license
exceptions).
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requirements regarding the place of
landing for such aircraft and also
includes a special requirement for
flights to and from Cuba. Specifically,
the last sentence in § 234.2(a) specifies
that aircraft carrying passengers or crew
required to be inspected on flights
originating in Cuba 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. DHS is amending
§ 234.2(a) to remove the last sentence.
Section 122.31 of title 19 (19 CFR
122.31) sets forth notice of arrival
requirements for aircraft entering the
United States from a foreign area.
Paragraph (c)(1)(ii) specifies that aircraft
arriving from Cuba must follow the
advance notice of arrival procedures set
forth in § 122.154 in part 122, subpart O.
Paragraph (c)(1)(iii) specifies that
certain aircraft arriving from areas south
of the United States (other than Cuba)
must follow the notice of arrival
procedures set forth in § 122.23 in part
122. As a result of removing subpart O,
flights arriving from Cuba will now give
advance notice of arrival in accordance
with the other provisions in 19 CFR part
122. Accordingly, DHS is removing
paragraph (c)(1)(ii) from § 122.31 and
making other conforming amendments
to paragraph (c)(1).
Section 122.42 of title 19 (19 CFR
122.42) sets forth certain aircraft entry
requirements. Paragraph (d) provides
that an aircraft of a scheduled airline
which stops only for refueling at the
first place or arrival in the United States
shall not be required to enter provided
it meets certain conditions, except for
flights to Cuba (provided for in subpart
O of this part). To conform with the
removal of subpart O, DHS is removing
this exception language from paragraph
(d) of § 122.42.
Additional Requirements for Aircraft
Traveling to or From Cuba
All aircraft entering/departing the
United States from/to Cuba 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 administers the CACR, 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
VerDate Sep<11>2014
15:24 Mar 18, 2016
Jkt 238001
involving Cuba unless authorized by
OFAC. As mentioned before, air carriers
are authorized to provide service to and
from Cuba under a ‘‘general license’’ so
long as the air carrier complies with the
terms and conditions of the general
license.
BIS administers the EAR, 15 CFR
parts 730 through 774, which prohibit
certain exports and re-exports to Cuba
unless authorized by a license or license
exception. As discussed above, flying an
aircraft to Cuba constitutes an export or
re-export under the EAR, but certain
flights on a ‘‘temporary sojourn’’ qualify
for a license exception. An aircraft that
fails to qualify for the ‘‘temporary
sojourn’’ license exception under 15
CFR 740.15 may require an individually
validated license under the EAR in
order to depart the United States for
Cuba. Baggage and cargo onboard the
aircraft may also require a license if it
does not qualify for a license exception
under the EAR.
Additionally, an aircraft traveling
between the United States and Cuba
may require a license from other federal
agencies, as applicable, and must obtain
economic and safety authorizations to
provide air transportation service as an
air carrier from the Office of the
Secretary of Transportation and the
Federal Aviation Administration. 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)).
Inapplicability of Notice and Delayed
Effective Date Requirements, the
Regulatory Flexibility Act, and
Executive Order 12866
The Administrative Procedure Act
(APA) requirements in 5 U.S.C. 553
govern agency rulemaking procedures.
The APA generally requires that an
agency provide prior notice and an
opportunity for public comment before
issuing a final rule.17 The APA also
requires that a final rule have a 30-day
delayed effective date.18 The APA
provides a full exemption from the
requirements of section 553 for rules
involving a foreign affairs function of
the United States.19 The APA also
provides an exception from the prior
notice and public comment requirement
and the delayed effective date
requirement if the agency for good cause
finds that such procedures are
17 5
U.S.C. 553(b) and (c).
U.S.C. 553(d).
19 5 U.S.C. 553(a)(1).
impracticable, unnecessary or contrary
to the public interest.20
This interim final rule is excluded
from the rulemaking provisions of 5
U.S.C. 553 as a foreign affairs function
of the United States because it concerns
international flights between the United
States and Cuba, consistent with U.S.
foreign policy goals. These amendments
to clarify and simplify the regulations
regarding air travel between the United
States and Cuba are consistent with the
President’s continued effort to
normalize relations between the two
countries.
Accordingly, DHS is not required to
provide public notice and an
opportunity to comment before
implementing the requirements under
this interim final rule.
In addition, with respect to the
removal of the regulations in 19 CFR
part 122, subpart O, that are duplicative
of the entry and clearance requirements
in the rest of part 122, DHS finds that
good cause exists for dispensing with
the prior notice and comment procedure
as unnecessary under 5 U.S.C. 553(b)(B)
and for dispensing with the requirement
for a delayed effective date under 5
U.S.C. 553(d)(3). The Department,
however, is interested in public
comments on this interim final rule and,
therefore, is providing the public with
the opportunity to comment without
delaying implementation of this rule.
All comments received will become a
matter of the public record.
In addition, DHS does not consider
this rule to be a ‘‘significant regulatory
action’’ under Executive Order 12866,
section 3(f), Regulatory Planning and
Review. Rules involving the foreign
affairs function of the United States are
exempt from the requirements of
Executive Order 12866. As discussed
above, DHS is of the opinion that
clarifying and simplifying the
regulations regarding restrictions on
travel between the United States and
Cuba is a foreign affairs function of the
United States Government and as such,
this rule is exempt from the
requirements of Executive Order 12866.
Finally, because DHS is of the opinion
that this rule is not subject to the
requirements of 5 U.S.C. 553, DHS does
not consider this rule to be subject to
the provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Signing Authority
This interim final rule is being issued
in accordance with 8 CFR 2.1 and 19
CFR 0.2(a). Accordingly, this interim
final rule is signed by the Secretary of
Homeland Security.
18 5
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20 5
Sfmt 4700
U.S.C. 553(b)(B) and 553(d)(3).
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Federal Register / Vol. 81, No. 54 / Monday, March 21, 2016 / Rules and Regulations
List of Subjects
Subpart O [Removed and Reserved]
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.
6. Remove and reserve subpart O,
consisting of §§ 122.151 through
122.158.
Jeh Johnson,
Secretary.
[FR Doc. 2016–06371 Filed 3–18–16; 8:45 am]
BILLING CODE 9111–14–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Amendments to the Regulations
15 CFR Part 744
For the reason stated in the preamble,
8 CFR part 234 and 19 CFR part 122 are
amended as set forth below.
[Docket No. 160229152–6152–01]
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:
■
[Amended]
2. Amend § 234.2 by removing the last
sentence of paragraph (a).
■
19 CFR Chapter 1
PART 122—AIR COMMERCE
REGULATIONS
3. The authority citation for part 122
continues to read in part 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.
*
*
§ 122.31
*
*
*
[Amended]
4. Amend § 122.31 as follows:
a. Remove and reserve paragraph
(c)(1)(ii);
■ b. In paragraph (c)(1)(iii), remove the
text ‘‘(other than Cuba)’’; and
■ c. In paragraph (c)(1)(iv), remove the
text ‘‘, (c)(1)(ii)’’.
■
■
5. Amend § 122.42 by revising the
introductory sentence of paragraph (d)
to read as follows:
■
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§ 122.42
Aircraft entry.
*
*
*
*
*
(d) Exception to entry requirement.
An aircraft of a scheduled airline which
stops only for refueling at the first place
of arrival in the United States will not
be required to enter provided:
*
*
*
*
*
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Addition of Certain Persons and
Modification to Entries on the Entity
List; and Removal of Certain Persons
From the Entity List
Bureau of Industry and
Security, Commerce.
ACTION: Final rule.
AGENCY:
This rule amends the Export
Administration Regulations (EAR) by
adding forty-four persons under fortynine entries to the Entity List. The fortyfour persons who are added to the
Entity List have been determined by the
U.S. Government to be acting contrary
to the national security or foreign policy
interests of the United States. These
forty-four persons will be listed on the
Entity List under the destinations of
China, Germany, Hong Kong, India,
Iran, Malaysia, the Netherlands,
Singapore, Switzerland, and the United
Arab Emirates (U.A.E.).
This final rule also removes five
entities from the Entity List under the
destinations of Ukraine and the U.A.E.,
as the result of requests for removal
received by BIS, a review of information
provided in the removal requests in
accordance with the procedure for
requesting removal or modification of
an Entity List entity and further review
conducted by the End-User Review
Committee (ERC).
Finally, this final rule modifies two
existing entries in the Entity List, both
under the destination of China. These
entries are being modified to reflect
additional aliases and addresses for
these persons. BIS implements this rule
to protect U.S. national security or
foreign policy interests and to ensure
entries on the Entity List are accurate
and up-to-date.
DATES: This rule is effective March 21,
2016.
FOR FURTHER INFORMATION CONTACT:
Chair, End-User Review Committee,
SUMMARY:
Authority: 8 U.S.C. 1103, 1221, 1229; 8
CFR part 2.
§ 234.2
RIN 0694–AG87
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14953
Office of the Assistant Secretary, Export
Administration, Bureau of Industry and
Security, Department of Commerce,
Phone: (202) 482–5991, Fax: (202) 482–
3911, Email: ERC@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
The Entity List (Supplement No. 4 to
part 744) identifies entities and other
persons reasonably believed to be
involved, or to pose a significant risk of
being or becoming involved, in
activities contrary to the national
security or foreign policy interests of the
United States. The EAR imposes
additional license requirements on, and
limits the availability of most license
exceptions for, exports, reexports, and
transfers (in-country) to those listed.
The ‘‘license review policy’’ for each
listed entity or other person is identified
in the License Review Policy column on
the Entity List and the impact on the
availability of license exceptions is
described in the Federal Register notice
adding entities or other persons to the
Entity List. BIS places entities and other
persons on the Entity List pursuant to
sections of part 744 (Control Policy:
End-User and End-Use Based) and part
746 (Embargoes and Other Special
Controls) of the EAR.
The ERC, composed of representatives
of the Departments of Commerce
(Chair), State, Defense, Energy and,
where appropriate, the Treasury, makes
all decisions regarding additions to,
removals from, or other modifications to
the Entity List. The ERC makes all
decisions to add an entry to the Entity
List by majority vote and all decisions
to remove or modify an entry by
unanimous vote.
ERC Entity List Decisions
Additions to the Entity List
This rule implements the decision of
the ERC to add forty-four persons under
forty-nine entries to the Entity List.
These forty-four persons are being
added on the basis of § 744.11 (License
requirements that apply to entities
acting contrary to the national security
or foreign policy interests of the United
States) of the EAR. The forty-nine
entries added to the entity list consist of
eight entries in China, four entries in
Germany, three entries in Hong Kong,
one entry in India, two entries in Iran,
five entries in Malaysia, two entries in
the Netherlands, one entry in Singapore,
one entry in Switzerland and twentytwo entries in the U.A.E. There are
forty-nine entries for the forty-four
persons because four persons are listed
in multiple locations, resulting in five
additional entries.
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]]>Agencies
[Federal Register Volume 81, Number 54 (Monday, March 21, 2016)]
[Rules and Regulations]
[Pages 14948-14953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06371]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 234
U.S. Customs and Border Protection
19 CFR Part 122
[USCBP-2016-0015; CBP Dec 16-06]
RIN 1651-AB10
Flights to and From Cuba
AGENCY: U.S. Customs and Border Protection, DHS.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: Current U.S. Customs and Border Protection (CBP) regulations
contain a separate subpart O addressing flights to and from Cuba. The
provisions in that subpart are either obsolete due to intervening
regulatory changes or are duplicative of regulations applicable to all
other similarly situated international flights. This rule therefore
amends the regulations by removing subpart O. These amendments are
consistent with the President's policy promoting the normalization of
relations between the United States and Cuba.
[[Page 14949]]
DATES: This interim final rule is effective on March 21, 2016. Comments
must be received by April 20, 2016.
ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2016-0015.
Mail: Border Security Regulations Branch, Regulations and
Rulings, Office of International Trade, U.S. Customs and Border
Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov. Comments submitted
will be available for public inspection during regular business days
between the hours of 9:00 a.m. and 4:30 p.m. at Regulations and
Rulings, Office of International Trade, U.S. Customs and Border
Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Arrangements to inspect submitted comments should be made in advance by
calling Mr. Joseph Clark at (202) 325-0118.
FOR FURTHER INFORMATION CONTACT: Arthur A.E. Pitts, Sr., U.S. Customs
and Border Protection, Office of Field Operations, by phone at (202)
344-2752 or by email at arthur.a.pitts@cbp.dhs.gov.
SUPPLEMENTARY INFORMATION:
Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
interim final rule. DHS also invites comments that relate to the
economic, environmental, or federalism effects that might result from
this interim final rule. Comments that will provide the most assistance
to DHS will reference a specific portion of the interim final rule,
explain the reason for any recommended change, and include data,
information, or authority that support such recommended change.
Background
As part of the President's new approach to Cuba policy, DHS and CBP
examined their regulations and policies pertaining to Cuba,
particularly as they relate to air travel between the two countries.\1\
The existing regulations pertaining to flights to and from Cuba
(codified at 19 CFR part 122, subpart O) are no longer needed because
they are either obsolete in light of intervening regulatory changes or
substantively identical to the general CBP requirements applicable to
aircraft seeking to fly into or out of the United States. Accordingly,
DHS is amending 19 CFR part 122 to remove subpart O and to make
conforming amendments to other provisions.
---------------------------------------------------------------------------
\1\ See Fact Sheet: Charting a New Course on Cuba, The White
House (Dec. 17, 2014), https://www.whitehouse.gov/the-press-office/2014/12/17/statement-president-cuba-policy-changes.
---------------------------------------------------------------------------
Under 19 CFR part 122, subpart O, only certain CBP-approved
airports may accept aircraft traveling to or from Cuba. Section 122.153
(19 CFR 122.153) provides a process by which a port authority must
submit a written request to CBP requesting that an airport receive
approval to accept flights to or from Cuba. Section 122.153 also
contains a list of approved airports. The remaining sections in subpart
O pertain to other requirements for flights to and from Cuba, including
notice of arrival, documents to be presented upon arrival, the release
of passengers arriving from Cuba, and documents required for clearance.
None of the regulatory requirements that apply specifically to flights
to and from Cuba is mandated by statute, but rather are authorized by
the broad authority granted to the Secretary of Homeland Security
respecting all aircraft arriving in and departing from the United
States under 19 U.S.C. 1433, 1644 and 1644a.\2\
---------------------------------------------------------------------------
\2\ Specifically, 19 U.S.C. 1433(c) provides that the pilot of
any aircraft arriving in the United States or the U.S. Virgin
Islands from any foreign location is required to comply with such
advance notification, arrival reporting, and landing requirements as
regulations may require. Under 19 U.S.C. 1644 and 1644a, the
Secretary can designate ports of entry for aircraft and apply vessel
entry and clearance laws and regulations to civil aircraft.
---------------------------------------------------------------------------
Prior to 2011, only three U.S. airports were authorized to accept
flights to and from Cuba: John F. Kennedy International Airport, Los
Angeles International Airport, and Miami International Airport. In
2011, the President announced a series of changes to ease certain
restrictions on travel to and from Cuba.\3\ The announcement stated
that the regulation should be modified to allow a U.S. airport to apply
to accept authorized flights if the airport has adequate customs and
immigration capabilities and if an authorized carrier has expressed an
interest in providing service between Cuba and the airport.\4\ In
response, DHS issued a final rule in the Federal Register (76 FR 5058)
on January 28, 2011, that amended 19 CFR 122.153 to allow additional
airports to request approval to accept Cuba flights.
---------------------------------------------------------------------------
\3\ Reaching Out to the Cuban People, The White House (Jan. 14,
2011), https://www.whitehouse.gov/the-press-office/2011/01/14/reaching-out-cuban-people.
\4\ Id.
---------------------------------------------------------------------------
On December 17, 2014, the President announced that the United
States would begin the process of normalizing relations with Cuba,
including taking steps to re-establish diplomatic relations (which
occurred on July 20, 2015), adjust regulations to more effectively
empower the Cuban people, and facilitate an expansion of authorized
travel under general licenses for the twelve existing categories of
travel to Cuba authorized by law.\5\ As part of the President's new
approach to relations with Cuba, the Department of the Treasury's
Office of Foreign Assets Control (OFAC), and the Department of
Commerce's Bureau of Industry and Security (BIS) have issued five sets
of amendments to the Cuban Assets Control Regulations (CACR) and Export
Administration Regulations (EAR), respectively.\6\ In February 2016,
representatives from the Departments of State and Transportation signed
an arrangement with Cuba that provides the basis for the restoration of
scheduled air services between the United States and Cuba.\7\
---------------------------------------------------------------------------
\5\ Fact Sheet: Charting a New Course on Cuba, The White House
(Dec. 17, 2014), https://www.whitehouse.gov/the-press-office/2014/12/17/fact-sheet-charting-new-course-cuba.
\6\ See 81 FR 13989 (Mar. 16, 2016), 81 FR 4583 (Jan. 27, 2016),
80 FR 56915 (Sept. 21, 2015), 80 FR 34053 (June 15, 2015), and 80 FR
2291 (Jan. 16, 2015) (amending the CACR); 81 FR 13972 (Mar. 16,
2016), 81 FR 4580 (Jan. 27, 2016), 80 FR 56898 (Sept. 21, 2015), 80
FR 43314 (July 22, 2015), and 80 FR 2286 (Jan. 16, 2015) (amending
the EAR).
\7\ United States, Cuba Sign Arrangement Restoring Scheduled Air
Service, U.S. Dep't of Transp. (Feb. 16, 2016), https://www.transportation.gov/briefing-room/united-states-cuba-sign-arrangement-restoring-scheduled-air-service.
---------------------------------------------------------------------------
In light of these intervening regulatory changes, the regulations
specifically addressing flights to and from Cuba in 19 CFR part 122,
subpart O are no longer necessary. Accordingly, DHS is removing that
subpart. DHS is also making conforming amendments to certain provisions
in titles 8 and 19 of the CFR: 8 CFR 234.2, 19 CFR 122.31, and 19 CFR
122.42. The removal of part 122, subpart O, will make clear that
flights to and from Cuba are subject to the same entry and clearance
requirements in 19 CFR part 122 as all other similarly situated
international flights.
Removal of 19 CFR Part 122, Subpart O
Part 122, subpart O, of title 19 CFR, consists of eight sections
numbered
[[Page 14950]]
from 122.151 to 122.158 (19 CFR 122.151-122.158). A description of each
section follows, along with an explanation as to why it is no longer
necessary, desirable, or consistent with the U.S. government's current
approach towards Cuba.
Section 122.151 (19 CFR 122.151) consists of two definitions, one
for the ``United States'' and one for ``Cuba,'' which apply within
subpart O. The definition for the ``United States'' is duplicative of
the one in 19 CFR 122.1(l), and is therefore unnecessary. ``Cuba'' is
not defined in 19 CFR 122.1, but this definition is also unnecessary in
light of the removal of the special regulations governing flights to
and from Cuba.
Section 122.152 (19 CFR 122.152), regarding the application of
subpart O, provides that the subpart applies to all aircraft entering
or departing the United States to or from Cuba, except for public
aircraft. As explained below, the other sections in subpart O are
unnecessary, so there is no longer a need for this section.
Section 122.153 (19 CFR 122.153) covers the limitation on airports
of entry and departure for flights to and from Cuba. Under this
section, flights to or from Cuba are limited to the Miami International
Airport, John F. Kennedy International Airport, Los Angeles
International Airport, or any other airport approved by CBP according
to the procedures in paragraph (b). Paragraph (b) of Sec. 122.153
outlines the approval process, which allows an international airport,
landing rights airport, or user fee airport to request CBP approval to
become an airport of entry and departure for aircraft traveling to and
from Cuba. Under this process, CBP would determine whether the airport
is properly equipped to facilitate passport control and baggage
inspection and whether there is an OFAC licensed carrier that is
prepared to provide flights between the airport and Cuba. Approved
airports are listed on the CBP Web site and in updates to a list of
approved airports in paragraph (c) of Sec. 122.153.
The limitations regarding airports authorized to provide flights to
and from Cuba are not required by statute. The regulation, now codified
at 19 CFR 122.153, was originally promulgated in 1980 and appeared at
19 CFR 6.3a. The preamble for the Federal Register document
implementing the regulation stated that ``[b]ecause of the present
situation involving aliens attempting to reach the U.S. from Cuba,
there is serious reason to believe that unsafe and unlawful means of
transportation will be utilized.'' \8\ As to the authority underlying
the new limits, the preamble stated the rule was being undertaken in
accordance with regulations propounded by the Federal Aviation
Administration (14 CFR 91.101), the Immigration and Naturalization
Service (8 CFR parts 231 and 239), and the Department of Commerce (15
CFR 371.19). None of these authorities limits the number of airports
that can service flights to or from Cuba or requires an application
process to qualify airports to service Cuban flights in particular.
---------------------------------------------------------------------------
\8\ 45 FR 29247 (May 1, 1980).
---------------------------------------------------------------------------
DHS has determined that the approval process set forth in Sec.
122.153(b) is no longer necessary because the criteria for obtaining
approval to accept flights to and from Cuba are not materially
different than the requirements applicable to all other similarly
situated airports and aircraft operators seeking to conduct
international flights. In evaluating requests by aircraft for
permission to land at an international, landing rights or user fee
airport, CBP researches and evaluates the impact on the overall
operations at a given airport regardless of its classification. CBP
also evaluates, in consultation with the airport authority where
appropriate, the ability of the proposed airport to handle the flight,
travelers, baggage, and cargo. CBP ensures that each airport for which
a new international flight is requested is equipped to facilitate
passport control and baggage inspection, and has the appropriate
infrastructure to properly service the plane from the runway to its
assigned gate.\9\
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\9\ Certain aircraft arriving from areas south of the United
States are subject to a modified process. Such flights are subject
to specific notice of arrival requirements and must land at the
airport listed under 19 CFR 122.24(b) that is nearest the point at
which the aircraft crosses the border, unless an overflight
exemption is granted. See 19 CFR 122.23-122.25. In designating the
airports listed in 19 CFR 122.24(b), CBP has determined that these
airports have adequate facilities and resources available to inspect
and process aircraft subject to the regulation and their attendant
crew, passengers, and cargo. If an exemption is sought pursuant to
19 CFR 122.25, CBP considers whether the proposed destination
airport has adequate resources to handle the flight, travelers,
baggage, and cargo, just as it considers these factors when deciding
whether to grant permission to land a new international flight that
is not subject to 19 CFR 122.24. This modified process does not
apply to (1) public aircraft, (2) aircraft operated on a regularly
published schedule, pursuant to a certificate of public convenience
and necessity or foreign aircraft permit issued by the Department of
Transportation, authorizing interstate, overseas air transportation;
or (3) aircraft with a seating capacity of more than 30 passengers
or a maximum payload capacity of more than 7,500 pounds which are
engaged in air transportation for compensation or hire on demand.
See 19 CFR 122.23(a). With the removal of 19 CFR part 122, subpart
O, the requirements in 19 CFR 122.23-122.25 would apply to flights
to and from Cuba that fall within the scope of those regulations.
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The requirement in Sec. 122.153 that the requesting airport must
have an OFAC-licensed carrier service provider that is prepared to
provide flights between the airport and Cuba is obsolete. OFAC no
longer requires an air carrier to obtain a specific license to provide
carrier services to or from Cuba. Rather, an air carrier may fly to or
from Cuba pursuant to a general license under the CACR, so long as the
air carrier is providing carrier services in connection with travel or
transportation of persons, baggage, or cargo that is itself authorized
under the CACR, 31 CFR part 515, and is no longer required to obtain a
specific license from OFAC.\10\ See 31 CFR 515.317 and 515.572(a).
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\10\ According to OFAC, ``A general license authorizes persons
subject to U.S. jurisdiction to provide carrier services by vessel
or aircraft to, from, or within Cuba, in connection with authorized
travel, without the need for a specific license.'' Frequently Asked
Questions Related to Cuba, U.S. Department of Treasury (last updated
Mar. 15, 2016), https://www.treasury.gov/resource-center/sanctions/Programs/Documents/cuba_faqs_new.pdf. See also 31 CFR 501.801(a)
(``General licenses have been issued authorizing under appropriate
terms and conditions certain types of transactions which are subject
to the prohibitions contained in this chapter.'').
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Accordingly, by eliminating Sec. 122.153, CBP will make clear that
it follows the same process in certifying flights to and from Cuba as
it does with all international flights. Aircraft operators will be
required to follow the usual procedures for international flights found
in governing law, including the regulations in 19 CFR part 122, subpart
B, for obtaining permission to land and to secure new international
routes. The specific requirements vary depending on whether the airport
is an international airport, a landing rights airport, or a user fee
airport. See 19 CFR 122.11-122.13 (international airports); 122.14
(landing rights airports); 122.15 (user fee airports).
Section 122.154 (19 CFR 122.154) sets forth notice of arrival
requirements. This section provides that all aircraft entering the
United States from Cuba (except for OFAC-approved scheduled commercial
aircraft of a scheduled airline) must give advance notice of arrival,
not less than one hour before crossing the U.S. coast or border. The
notice must provide the type of aircraft; name of the aircraft
commander; number of U.S. citizen and alien passengers; place of last
foreign departure; estimated time of crossing the border; and estimated
time of arrival. Section 122.154 is being removed as it is redundant
with other provisions within part 122. Generally, all inbound aircraft
(not just those arriving from Cuba) are required to
[[Page 14951]]
provide notice to CBP prior to arriving in the United States. Section
122.22 (19 CFR 122.22) generally requires all private aircraft pilots
to transmit notice of arrival and manifest information to CBP at least
60 minutes prior to departure of the aircraft from the foreign port or
place.\11\ The data required under Sec. 122.22 includes the data
required under Sec. 122.154. Section 122.23 (19 CFR 122.23) requires
similar notice of arrival information for certain non-public aircraft
arriving from locations south of the United States. Section 122.31 (19
CFR 122.31) requires advance notice of arrival from all other aircraft,
with the exception of aircraft of a scheduled airline arriving under a
regular schedule. In addition, 19 CFR 122.49a, 122.49b, 122.49c, and 8
CFR 231.1(a) require commercial carriers to transmit electronic
manifest information for all passengers and crew.
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\11\ If the United States is not the original destination and
the flight is diverted to the United States due to an emergency, the
information is required no later than 30 minutes prior to arrival.
19 CFR 122.22(b)(2)(ii).
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Section 122.155 (19 CFR 122.155) requires the aircraft commander of
a flight arriving from Cuba to present to CBP the manifest required by
8 CFR 231.1(b),\12\ and the documents required by subpart E of 19 CFR
part 122, upon arrival in the United States. As Sec. 122.155 merely
cross-references subpart E of 19 CFR part 122 and 8 CFR 231.1(b), the
information referred to in this section is already required of all
aircraft that are subject to the cited provisions. Furthermore, 19 CFR
122.22 imposes electronic manifest requirements on private aircraft
that are commensurate with the electronic manifest requirements for
commercial aircraft contained in subpart E.
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\12\ While 19 CFR 122.155 refers to the manifest required by 8
CFR 231.1(b), Sec. 231.1(b) actually requires the submission of a
properly completed Arrival/Departure Record, Form I-94 for each
arriving passenger, with certain exceptions; Sec. 231.1(a) requires
the submission of an electronic manifest.
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Section 122.156 (19 CFR 122.156) concerns the release of passengers
and aircraft. This section provides that neither passengers arriving
from Cuba, nor the aircraft, will be released by Customs before the
passengers are released by the Immigration and Naturalization Service
or a Customs officer acting on behalf of that agency. This section is
outdated due to the reorganization in 2002 which prompted the creation
of CBP, in which customs and immigration functions were
consolidated.\13\ Moreover, the requirement that all arriving persons
report to a Customs officer and that all aliens seeking admission
undergo immigration inspection is set forth in various provisions in
the United States Code and titles 19 and 8 of the CFR.\14\ Clearance of
aircraft departing the United States is covered generally in 19 CFR
part 122, subparts F, G, H and I.
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\13\ Pursuant to the Homeland Security Act of 2002, Public Law
107-296, 116 Stat. 2135 (HSA), as of March 1, 2003, the legacy
Immigration and Naturalization Service (INS) of the Department of
Justice and the legacy Customs Service of the Department of the
Treasury were transferred to DHS and reorganized to become CBP, U.S.
Immigration and Customs Enforcement (ICE), and U.S. Citizenship and
Immigration Services (USCIS). All inspectional functions previously
assigned to legacy INS were transferred to DHS. As provided in 6
U.S.C. 552(d), references relating to an agency that is transferred
to DHS in statutes, executive orders, rules, regulations,
directives, or delegations of authority that precede the effective
date of the HSA are deemed to refer to DHS, its officers, employees,
or agents, or to its corresponding organizational units or
functions.
\14\ See, e.g., 19 U.S.C. 1459(b) and (d) (requiring all
individuals arriving aboard a reported conveyance to report to the
designated customs facility and prohibiting departure from the
facility until authorized to do so by the appropriate customs
officer); 8 U.S.C. 235(a) (requiring all aliens who are applicants
for admission or otherwise seeking admission or readmission to the
United States to undergo an immigration inspection); 8 CFR 235.1(a)
(requiring application to lawfully enter the United States to be
made in person to an immigration officer at a U.S. port-of-entry);
and 8 CFR 234.2(c) (prohibiting aircraft carrying passengers or crew
required to be inspected from discharging or permitting to depart
any passenger or crewman without permission from an immigration
officer).
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Section 122.157 (19 CFR 122.157) sets forth the documents that are
required to clear an aircraft for departure. Under this section, the
aircraft commander must present documents required by subpart H and a
license issued by the Department of Commerce under 15 CFR 371.19 or by
the Department of State under 22 CFR part 123. This section is outdated
and is no longer necessary. First, 15 CFR 371.19 no longer exists.
Under the current regulations, flights on a ``temporary sojourn'' to or
from Cuba generally qualify for a license exception under the EAR
provided they meet certain conditions, which are administered by BIS.
In general, flying an aircraft to Cuba, even temporarily, constitutes
an export or re-export to Cuba.\15\ However, the governing EAR
provision authorizes departure from the United States of foreign
registry civil aircraft on temporary sojourn in the United States and
of U.S. civil aircraft for temporary sojourn abroad.\16\ Thus, if the
aircraft departing the United States for Cuba meets the ``temporary
sojourn'' definition to qualify for the license exception, there is no
license requirement imposed on such aircraft. Second, clearance
requirements for all international flights are currently covered under
19 CFR part 122, subparts C, F, G and H. 22 CFR part 123, which
pertains to the importation or exportation of certain defense articles,
contains other potential requirements for clearance. These
requirements, however, are not specific to flights to and from Cuba and
would apply regardless of the removal of 19 CFR part 122, subpart O.
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\15\ Cuba, Bureau of Industry and Security, https://www.bis.doc.gov/index.php/policy-guidance/country-guidance/sanctioned-destinations/cuba (last accessed Feb. 24, 2016); see also
15 CFR 746.2(a) (requiring a license to export or re-export all
items subject to the EAR to Cuba, except as provided in the
regulation).
\16\ 15 CFR 740.15. Former 15 CFR 371.19, which is referenced in
19 CFR 122.157, described general licensing requirements for
aircraft on a temporary sojourn to or from the United States,
reflecting a prior regulatory regime that relied on general
licenses, rather than license exceptions. See 61 FR 12714, 12778
(Mar. 25, 1996) (interim rule replacing general license requirement
with license exceptions).
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Section 122.158 (19 CFR 122.158) states that all other provisions
of part 122 relating to entry and clearance of aircraft are applicable
to aircraft subject to subpart O. This section is duplicative of 19 CFR
122.0(a), which provides that the regulations in part 122 relate to the
entry and clearance of aircraft and the transportation of persons and
cargo by aircraft, and are applicable to all air commerce.
For the reasons discussed above, DHS has determined that 19 CFR
part 122, subpart O is no longer necessary to regulate air travel to
and from Cuba due to changes in the regulatory requirements governing
travel and trade between the United States and Cuba, and the
implementation of robust reporting requirements that apply to
international flights generally. Therefore, DHS is amending 19 CFR part
122 to remove 19 CFR part 122, subpart O, pertaining to flights to and
from Cuba. Flights to and from Cuba will continue to be subject to the
remaining entry and clearance requirements in 19 CFR part 122, as well
as all other legal requirements relating to travel and trade between
the United States and Cuba including, but not limited to, the CACR and
the EAR.
Conforming Amendments
DHS is amending various sections in title 8 CFR and title 19 CFR to
bring these sections into conformity with the removal of 19 CFR part
122, subpart O. These amendments are described below.
Section 234.2 of title 8 (8 CFR 234.2) sets forth landing
requirements for aircraft carrying passengers or crew required to be
inspected under the Immigration and Nationality Act. Section 234.2(a)
specifies the general
[[Page 14952]]
requirements regarding the place of landing for such aircraft and also
includes a special requirement for flights to and from Cuba.
Specifically, the last sentence in Sec. 234.2(a) specifies that
aircraft carrying passengers or crew required to be inspected on
flights originating in Cuba 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. DHS is amending Sec. 234.2(a) to remove the last
sentence.
Section 122.31 of title 19 (19 CFR 122.31) sets forth notice of
arrival requirements for aircraft entering the United States from a
foreign area. Paragraph (c)(1)(ii) specifies that aircraft arriving
from Cuba must follow the advance notice of arrival procedures set
forth in Sec. 122.154 in part 122, subpart O. Paragraph (c)(1)(iii)
specifies that certain aircraft arriving from areas south of the United
States (other than Cuba) must follow the notice of arrival procedures
set forth in Sec. 122.23 in part 122. As a result of removing subpart
O, flights arriving from Cuba will now give advance notice of arrival
in accordance with the other provisions in 19 CFR part 122.
Accordingly, DHS is removing paragraph (c)(1)(ii) from Sec. 122.31 and
making other conforming amendments to paragraph (c)(1).
Section 122.42 of title 19 (19 CFR 122.42) sets forth certain
aircraft entry requirements. Paragraph (d) provides that an aircraft of
a scheduled airline which stops only for refueling at the first place
or arrival in the United States shall not be required to enter provided
it meets certain conditions, except for flights to Cuba (provided for
in subpart O of this part). To conform with the removal of subpart O,
DHS is removing this exception language from paragraph (d) of Sec.
122.42.
Additional Requirements for Aircraft Traveling to or From Cuba
All aircraft entering/departing the United States from/to Cuba 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 administers the CACR, 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. As mentioned before, air carriers are
authorized to provide service to and from Cuba under a ``general
license'' so long as the air carrier complies with the terms and
conditions of the general license.
BIS administers the EAR, 15 CFR parts 730 through 774, which
prohibit certain exports and re-exports to Cuba unless authorized by a
license or license exception. As discussed above, flying an aircraft to
Cuba constitutes an export or re-export under the EAR, but certain
flights on a ``temporary sojourn'' qualify for a license exception. An
aircraft that fails to qualify for the ``temporary sojourn'' license
exception under 15 CFR 740.15 may require an individually validated
license under the EAR in order to depart the United States for Cuba.
Baggage and cargo onboard the aircraft may also require a license if it
does not qualify for a license exception under the EAR.
Additionally, an aircraft traveling between the United States and
Cuba may require a license from other federal agencies, as applicable,
and must obtain economic and safety authorizations to provide air
transportation service as an air carrier from the Office of the
Secretary of Transportation and the Federal Aviation Administration.
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)).
Inapplicability of Notice and Delayed Effective Date Requirements, the
Regulatory Flexibility Act, and Executive Order 12866
The Administrative Procedure Act (APA) requirements in 5 U.S.C. 553
govern agency rulemaking procedures. The APA generally requires that an
agency provide prior notice and an opportunity for public comment
before issuing a final rule.\17\ The APA also requires that a final
rule have a 30-day delayed effective date.\18\ The APA provides a full
exemption from the requirements of section 553 for rules involving a
foreign affairs function of the United States.\19\ The APA also
provides an exception from the prior notice and public comment
requirement and the delayed effective date requirement if the agency
for good cause finds that such procedures are impracticable,
unnecessary or contrary to the public interest.\20\
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\17\ 5 U.S.C. 553(b) and (c).
\18\ 5 U.S.C. 553(d).
\19\ 5 U.S.C. 553(a)(1).
\20\ 5 U.S.C. 553(b)(B) and 553(d)(3).
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This interim final rule is excluded from the rulemaking provisions
of 5 U.S.C. 553 as a foreign affairs function of the United States
because it concerns international flights between the United States and
Cuba, consistent with U.S. foreign policy goals. These amendments to
clarify and simplify the regulations regarding air travel between the
United States and Cuba are consistent with the President's continued
effort to normalize relations between the two countries.
Accordingly, DHS is not required to provide public notice and an
opportunity to comment before implementing the requirements under this
interim final rule.
In addition, with respect to the removal of the regulations in 19
CFR part 122, subpart O, that are duplicative of the entry and
clearance requirements in the rest of part 122, DHS finds that good
cause exists for dispensing with the prior notice and comment procedure
as unnecessary under 5 U.S.C. 553(b)(B) and for dispensing with the
requirement for a delayed effective date under 5 U.S.C. 553(d)(3). The
Department, however, is interested in public comments on this interim
final rule and, therefore, is providing the public with the opportunity
to comment without delaying implementation of this rule. All comments
received will become a matter of the public record.
In addition, DHS does not consider this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. Rules involving the foreign affairs
function of the United States are exempt from the requirements of
Executive Order 12866. As discussed above, DHS is of the opinion that
clarifying and simplifying the regulations regarding restrictions on
travel between the United States and Cuba is a foreign affairs function
of the United States Government and as such, this rule is exempt from
the requirements of Executive Order 12866. Finally, because DHS is of
the opinion that this rule is not subject to the requirements of 5
U.S.C. 553, DHS does not consider this rule to be subject to the
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Signing Authority
This interim final rule is being issued in accordance with 8 CFR
2.1 and 19 CFR 0.2(a). Accordingly, this interim final rule is signed
by the Secretary of Homeland Security.
[[Page 14953]]
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
For the reason stated in the preamble, 8 CFR part 234 and 19 CFR
part 122 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.
Sec. 234.2 [Amended]
0
2. Amend Sec. 234.2 by removing the last sentence of paragraph (a).
19 CFR Chapter 1
PART 122--AIR COMMERCE REGULATIONS
0
3. The authority citation for part 122 continues to read in part 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.
* * * * *
Sec. 122.31 [Amended]
0
4. Amend Sec. 122.31 as follows:
0
a. Remove and reserve paragraph (c)(1)(ii);
0
b. In paragraph (c)(1)(iii), remove the text ``(other than Cuba)''; and
0
c. In paragraph (c)(1)(iv), remove the text ``, (c)(1)(ii)''.
0
5. Amend Sec. 122.42 by revising the introductory sentence of
paragraph (d) to read as follows:
Sec. 122.42 Aircraft entry.
* * * * *
(d) Exception to entry requirement. An aircraft of a scheduled
airline which stops only for refueling at the first place of arrival in
the United States will not be required to enter provided:
* * * * *
Subpart O [Removed and Reserved]
0
6. Remove and reserve subpart O, consisting of Sec. Sec. 122.151
through 122.158.
Jeh Johnson,
Secretary.
[FR Doc. 2016-06371 Filed 3-18-16; 8:45 am]
BILLING CODE 9111-14-P
