[Federal Register Volume 76, Number 19 (Friday, January 28, 2011)]
[Rules and Regulations]
[Pages 5058-5061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2011]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 234

U.S. Customs and Border Protection

19 CFR Part 122

[CBP Dec 11-05]
RIN 1651-AA86


Airports of Entry or Departure for Flights to and From Cuba

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

ACTION: Final rule.

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

[[Page 5059]]

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

DATES: Effective Date: January 28, 2011.

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

SUPPLEMENTARY INFORMATION: 

Background

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

Flights Between Cuba and Additional Airports in the United States

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

Eligibility Requirements and Application and Approval Procedure

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

Additional Requirements for Aircraft Traveling to or From Cuba

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

[[Page 5060]]

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

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

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

Paperwork Reduction Act

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

Signing Authority

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

List of Subjects

8 CFR Part 234

    Air carriers, Aircraft, Airports, Aliens, Cuba.

19 CFR Part 122

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

Amendments to the Regulations

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

8 CFR Chapter 1

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

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

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

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


Sec.  234.2  Landing requirements.

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

19 CFR Chapter 1

PART 122--AIR COMMERCE REGULATIONS

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

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

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

[[Page 5061]]

Sec.  122.153  Limitations on airport of entry or departure.

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

------------------------------------------------------------------------
                 Location                               Name
------------------------------------------------------------------------
Jamaica, New York.........................  John F. Kennedy
                                             International Airport
Los Angeles, California...................  Los Angeles International
                                             Airport
Miami, Florida............................  Miami International Airport
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0
5. In Sec.  122.154, revise paragraph (b)(2) to read as follows:


Sec.  122.154  Notice of arrival.

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

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