[Federal Register Volume 77, Number 247 (Wednesday, December 26, 2012)]
[Rules and Regulations]
[Pages 75823-75825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31105]



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 Rules and Regulations
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  Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / 
Rules and Regulations  

[[Page 75823]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 100

U.S. Customs and Border Protection

19 CFR Part 101

[Docket No. USCBP-2011-0017: CBP Dec. 12-22]
RIN 1651-AA93


Closing of the Port of Whitetail, MT

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

ACTION: Final rule.

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

SUMMARY: This document amends the Department of Homeland Security (DHS) 
regulations pertaining to the field organization of U.S. Customs and 
Border Protection (CBP) to reflect the closure of the port of entry of 
Whitetail, Montana. The change is part of CBP's continuing program to 
more efficiently utilize its personnel, facilities, and resources, and 
to provide better service to carriers, importers, and the general 
public.

DATES: Effective Date: January 25, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. Roger Kaplan, Office of Field 
Operations, U.S. Customs and Border Protection, (202) 325-4543, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On August 24, 2011, CBP published a Notice of Proposed Rulemaking 
(NPRM) in the Federal Register (76 FR 52890), proposing to close the 
port of entry of Whitetail, Montana, and amend the lists of CBP ports 
of entry to reflect the change. The primary reason for the proposed 
closure was the Canada Border Services Agency's (CBSA) closure of its 
adjacent port of entry of Big Beaver, Saskatchewan, Canada, on April 1, 
2011. As set forth in the NPRM, other factors were the limited usage of 
the port; the locations of the alternative ports of entry of Raymond, 
Montana, and Scobey, Montana; and the analysis of the net benefit of 
the port closure, including the cost of necessary renovations were the 
port to remain open.

II. Analysis of Comments

A. Comments Received

    CBP received four public comments in response to the NPRM. One 
commenter supports the closure of Whitetail and three commenters are 
opposed.
    The commenter who supports the proposed closure of the port of 
Whitetail believes that the costs of operating the port and maintaining 
the surrounding area are too high considering the low usage. This 
commenter points out that, using the figures provided in the NPRM for 
2007 to 2009, with the annual crossing average of 1,261 cars and 57 
trucks and the port's total annual operating cost of $492,000, it 
currently costs the taxpayers of the United States in excess of $373 
for each vehicle to cross at Whitetail. This commenter thinks that 
these costs are not warranted considering the limited increase in time 
and mileage that crossers would incur if the port of Whitetail were 
closed. Additionally, this commenter claims the closure of the port 
would have no effect on cross border commerce because there are 
currently no commercial carriers processed at the port. This commenter 
also asserts that basing any increase in travel time resulting from the 
proposed closure on the distance from the port of Whitetail to the 
alternate ports of Raymond and Scobey was not realistic, as the actual 
increase in mileage would be much less considering the more likely 
points of origin and destination.
    The other three commenters opposed the proposed closure, citing the 
disruptions the closure would cause them. Two commenters said that the 
increased travel time would cause them to discontinue their frequent 
trips from Canada to the United States to buy goods and visit shops and 
restaurants. Another commenter stated that the closure would increase 
the cost to the commenter to move hay bales between the commenter's 
farms in Canada and Montana. This commenter also surmised that the 
closure could be detrimental to other Canadian and Montanan 
agricultural producers.

B. CBP Response

    With regard to the comment about increased travel time, CBP 
acknowledged in the NPRM that using the distance between the ports may 
overstate the cost of the closure to travelers. However, CBP does not 
collect data on these travelers' points of origin and destination. 
Thus, CBP based the analysis on the assumption that the closure would 
create a detour adding 1 hour and 40 miles to each crosser's trip. The 
actual additional time and mileage U.S. travelers may incur to drive to 
an alternate port may be less.
    With regard to the comments about usage and cost, as discussed in 
the NPRM, the port of Whitetail is one of CBP's least trafficked ports 
and has processed an average of less than 4 vehicles per day for the 
last 4 years. From 2007 to 2009, Whitetail averaged only 1,318 cars and 
trucks a year. More recently, in fiscal year 2011, southbound traffic 
dropped to less than 960 vehicles, with almost all of the decrease in 
southbound traffic occurring after CBSA closed the port of Big Beaver 
to northbound traffic in April 2011. The commercial traffic is even 
lower. In fiscal year 2011 CBP processed only 24 commercial vehicles at 
the port of Whitetail. This was a significant decrease from the already 
low annual average of about 60 commercial vehicles between 2007 and 
2009. Notwithstanding this very low usage, as explained in the NPRM, 
CBP would incur substantial costs in order to keep the port open. In 
addition to the nearly $500,000 annual operational budget, CBP would 
need to construct a replacement facility, an estimated $8 million cost, 
because the current facility does not have the infrastructure to meet 
modern operational, safety, and technological demands for ports of 
entry. Although CBP regrets the disruptions to personal and business 
routines that some individuals will experience due to the closure of 
Whitetail, CBP cannot justify the above-referenced costs for so few 
vehicles.

III. Conclusion

    After consideration of the comments received, the low usage of the 
port, the locations of the alternative ports of entry, and the analysis 
of the net benefit of the port closure, including the cost of

[[Page 75824]]

necessary renovations were the port to remain open, CBP is closing the 
port of entry of Whitetail, Montana. The lists of CBP ports of entry at 
8 CFR 100.4(a) and 19 CFR 101.3(b)(1) are being amended to reflect the 
change.
    CBP is working with the Montana Department of Transportation and 
CBSA to identify the permanent barrier and signage necessary to prevent 
entry and reroute traffic to nearby ports of entry. CBP expects that 
any impact on the environment and any costs incurred for this purpose 
will be minimal. If necessary, CBP will conduct appropriate 
environmental studies in the course of decommissioning and prior to 
facility demolition.

IV. Congressional Notification

    On September 28, 2010, the Commissioner of CBP notified Congress of 
CBP's intention to close the port of entry at Whitetail, Montana, 
fulfilling the congressional notification requirements of 19 U.S.C. 
2075(g)(2) and section 417 of the Homeland Security Act (6 U.S.C. 217).

V. Regulatory Requirements

A. Signing Authority

    The signing authority for this document falls under 19 CFR 0.2(a). 
Accordingly, this final rule is signed by the Secretary of Homeland 
Security.

B. Executive Orders 12866 and 13563

    This rule is not a significant regulatory action under Executive 
Order 12866, as supplemented by Executive Order 13563, and has not been 
reviewed by the Office of Management and Budget under that order. 
Nevertheless, CBP provided its assessment of the benefits and costs of 
this regulatory action in the NPRM and CBP adopts the NPRM's economic 
analysis for this final rule without any change.
    In summary, if the port of entry of Whitetail, Montana remained 
open, it would need significant renovation to meet current safety and 
security standards, which CBP estimates would cost approximately $8 
million. Whitetail also costs CBP approximately $500,000 in yearly 
operating expenses to pay for staff and utilities. If Whitetail closed, 
travelers would need to find an alternative crossing. As alternative 
crossings would require travelers to travel additional miles, CBP 
estimates travelers would incur an additional $104,000 annually in 
additional driving time and mileage costs if the Whitetail crossing was 
not available. In addition, if Whitetail was closed, CBP would incur a 
onetime cost of $158,000 in closure expenses. Thus, the net benefit of 
the Whitetail closure is about $8.2 million the first year and $396,000 
each year after that.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
federal agencies to examine the impact a rule would have on small 
entities. A small entity may be a small business (defined as any 
independently owned and operated business not dominant in its field 
that qualifies as a small business per the Small Business Act); a small 
not-for-profit organization; or a small governmental jurisdiction 
(locality with fewer than 50,000 people).
    Because CBP does not collect data on the number of small businesses 
that use the port of Whitetail, we cannot estimate how many would be 
affected by this rule. However, an average of less than four vehicles 
crossed into the United States at Whitetail each day even before 
closure of the Canadian port of Big Beaver further reduced traffic. 
Commercial traffic is even lower--an average of fewer than 60 
commercial vehicles crossed at Whitetail each year from 2007 to 2009, 
with only 24 commercial vehicles crossing in fiscal year 2011. The 
assessment of the benefits and costs of this regulatory action included 
in the NPRM concluded that the total cost of the rule to the public is 
about $104,000 a year, even assuming the longest possible detour for 
all traffic. DHS does not believe that this cost rises to the level of 
a significant economic impact. DHS thus believes that this rule will 
not have a significant economic impact on a substantial number of small 
entities. DHS did not receive any comments contradicting this finding. 
Accordingly, DHS certifies that this rule will not have a significant 
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

E. Executive Order 13132

    The rule will not have substantial direct effects on the States, on 
the relationship between the National Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, in accordance with section 6 of Executive 
Order 13132, this rule does not have sufficient federalism implications 
to warrant the preparation of a federalism summary impact statement.

List of Subjects

8 CFR Part 100

    Organization and functions (Government agencies).

19 CFR Part 101

    Customs duties and inspection, Customs ports of entry, Exports, 
Imports, Organization and functions (Government agencies).

Amendments to DHS Regulations

    For the reasons set forth above, DHS amends part 100 of title 8 of 
the Code of Federal Regulations and part 101 of title 19 of the Code of 
Federal Regulations as set forth below.

8 CFR CHAPTER 1--AMENDMENTS

PART 100--STATEMENT OF ORGANIZATION

0
1. The authority citation for part 100 continues to read as follows:

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


Sec.  100.4  [Amended]

0
2. The list of ports in Sec.  100.4(a) is amended by removing 
``Whitetail, MT'' from the list of Class A ports of entry under 
District No. 30--Helena, Montana.

19 CFR CHAPTER 1--AMENDMENTS

PART 101--GENERAL PROVISIONS

0
3. The general authority citation for part 101 and the specific 
authority citation for section 101.3 continue to read as follows:

    Authority:  5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 
3(i), Harmonized Tariff Schedule of the United States), 1623, 1624, 
1646a.

    Sections 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b;

* * * * *


Sec.  101.3  [Amended]

0
4. The list of ports in Sec.  101.3(b)(1) is amended by removing, under 
the state of Montana, the entry ``Whitetail'' from the ``Ports of 
entry'' column and removing the corresponding entry ``E.O. 7632, June 
15, 1937 (2 FR 1245).'' from the ``Limits of port'' column.


[[Page 75825]]


    Dated: December 20, 2012.
Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2012-31105 Filed 12-21-12; 4:15 pm]
BILLING CODE 9111-14-P