[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]


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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.

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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: http://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 http://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://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 [email protected].

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.
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    \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.
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    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\
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    \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.
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    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.
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    \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.
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    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\
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    \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.
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    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.
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    \8\ 45 FR 29247 (May 1, 1980).
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    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