[Federal Register Volume 84, Number 122 (Tuesday, June 25, 2019)]
[Rules and Regulations]
[Pages 29795-29797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13431]



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 Rules and Regulations
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  Federal Register / Vol. 84, No. 122 / Tuesday, June 25, 2019 / Rules 
and Regulations  

[[Page 29795]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 234

U.S. Customs and Border Protection

19 CFR Part 122

[Docket No. USCBP-2016-0015; CBP Decision No. 19-06]
RIN 1651-AB10


Flights To and From Cuba

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

ACTION: Final rule.

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SUMMARY: This rule adopts as final, without change, interim amendments 
to the U.S. Customs and Border Protection (CBP) regulations published 
in the Federal Register on March 21, 2016, that removed certain 
provisions regarding flights to and from Cuba that were either obsolete 
due to intervening regulatory changes or were duplicative of 
regulations applicable to all other similarly situated international 
flights.

DATES: This rule is effective on June 25, 2019.

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:

I. Background

    On March 21, 2016, the Department of Homeland Security (DHS) 
published an interim final rule (IFR) in the Federal Register (81 FR 
14948) amending CBP regulations to remove regulations previously 
codified at 19 CFR, part 122, subpart O. The removed regulations 
imposed certain restrictions and reporting requirements on flights to 
and from Cuba. The implementation of robust reporting requirements that 
generally apply to all international flights rendered much of subpart O 
redundant. Additionally, the Department of the Treasury's Office of 
Foreign Assets Control (OFAC) and the Department of Commerce's Bureau 
of Industry and Security (BIS) issued changes to the Cuban Assets 
Control Regulations (CACR) and the Export Administration Regulations 
(EAR) that rendered many sections of subpart O obsolete.\1\
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    \1\ Following the publication of the IFR, BIS and OFAC published 
additional changes to the CACR and the EAR in order to implement the 
National Security Presidential Memorandum on Strengthening the 
Policy of the United States Toward Cuba (June 16, 2017). See 82 FR 
51983 (Nov. 9, 2017) and 82 FR 51998 (Nov. 9, 2017). These changes 
did not affect provisions related to former subpart O and do not 
require modification to the IFR.
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    Despite the removal of subpart O, flights to and from Cuba continue 
to be subject to the same entry and clearance requirements in 19 CFR 
part 122 as all other similarly situated international flights. 
Additionally, flights to and from Cuba continue to be subject to other 
legal requirements relating to travel and trade between the United 
States and Cuba including, but not limited to, the CACR and the EAR.
    In the IFR, DHS also amended several provisions of title 8 CFR (8 
CFR 234.2) and title 19 CFR (19 CFR 122.31 and 122.42) to bring these 
sections into conformity with the removal of 19 CFR part 122, subpart 
O.

II. Discussion of Comments

A. Overview

    Although the interim regulatory amendments were promulgated without 
prior public notice and comment procedures pursuant to the foreign 
affairs exemption in 5 U.S.C. 553(a)(1), the IFR provided for the 
submission of public comments that would be considered before adoption 
of the interim regulations as a final rule. The prescribed 30-day 
public comment period closed on April 20, 2016. DHS received 
submissions from 30 commenters.
    The vast majority of commenters supported the removal of subpart O. 
Those commenters supported the removal of subpart O based on the 
expectation that it would benefit the U.S. airline industry and other 
U.S. businesses hoping to expand to Cuba, lower the cost of flights to 
and from Cuba by increasing flight options available to U.S. consumers, 
and potentially lead to future trade agreements and other economic 
cooperation between the United States and Cuba. Three of the commenters 
that supported the rule requested that DHS impose additional 
restrictions on international flights and individuals arriving in the 
United States. Two commenters opposed the IFR due to legal and policy 
concerns regarding Cuba. A summary of the comments and comment 
responses follow.

B. Discussion

    Comment: One commenter expressed concern that the removal of 
subpart O would encourage the spread of communist beliefs and stated 
that DHS should take steps to continue to isolate Cuba. Another 
commenter stated that the removal of subpart O was inconsistent with 
federal laws that restrict trade with Cuba and with CBP's putative duty 
to prevent trade with Cuba. Specifically, it is the position of the 
commenter that section 6063 of title 22 of the U.S. Code prohibits CBP 
from removing subpart O until there is a transition government in place 
in Cuba.
    Response: DHS disagrees that the removal of subpart O is 
inconsistent with U.S. law or CBP's obligations under the law. As noted 
above and explained in detail in the IFR, each section previously 
codified in subpart O is either redundant of other regulatory 
provisions or is obsolete due to intervening regulatory changes issued 
by OFAC and BIS pursuant to OFAC's and BIS's statutory authority to 
regulate travel and trade with Cuba. Additionally, none of the 
regulatory requirements previously codified in subpart O is mandated by 
statute. Rather, subpart O was promulgated pursuant to the Secretary of 
Homeland Security's broad authority to regulate all aircraft arriving 
to and departing from the United States. See 19 U.S.C. 1433, 1644, and 
1644a. The elimination of subpart O, therefore, merely updates CBP's 
regulations to conform to OFAC's and BIS's regulations and does not 
conflict with the existing statutory or regulatory scheme restricting 
travel or trade with Cuba.
    The removal of subpart O also does not conflict with title II of 
the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 
Public Law 104-114, sections 201-207, 110 Stat.

[[Page 29796]]

785, 805-814, which includes the provisions codified at 22 U.S.C. 6063. 
Those provisions do not specifically address DHS's authority to 
regulate aircraft flying to or from Cuba. The President is authorized 
to suspend aspects of the economic embargo of Cuba only if certain 
conditions are met, including the determination that ``a transition 
government in Cuba is in power.'' 22 U.S.C. 6064(a). As explained 
above, however, the removal of the provisions in subpart O, which are 
either redundant or obsolete, merely conforms CBP's regulations to the 
BIS and OFAC requirements. It does not affect the existing embargo, and 
therefore does not require a determination that a transition government 
is in power in Cuba.
    Comment: Two commenters expressed support for the removal of 
subpart O but requested that individuals arriving in the United States 
from any foreign place, including individuals arriving from Cuba, be 
subject to criminal background checks in order to enter the United 
States. One commenter requested that additional restrictions be placed 
on flights to and from any foreign place.
    Response: The requirements applicable to foreign individuals 
seeking entry into the United States are beyond the scope of this rule. 
However, DHS notes that despite the removal of subpart O, all travelers 
arriving in the United States from Cuba must still report to a CBP 
officer and undergo a customs and immigration inspection, as required 
by various provisions in the United States Code and titles 8 and 19 and 
of the CFR. DHS and its component agencies also work closely with the 
Department of State and other agencies responsible for enforcing the 
sanctions regime against Cuba, including OFAC and BIS, to ensure that 
individuals on the Specially Designated National (SDN) list are 
prohibited entry into the United States.
    In addition, despite the removal of subpart O, all aircraft 
arriving in the United States from Cuba are subject to the various 
reporting and inspection requirements of title 19 CFR.
    Comment: One commenter requested that DHS amend section 122.153(c) 
of title 19 (19 CFR 122.153) to permit Key West International Airport 
to receive flights to and from Cuba.
    Response: Section 122.153 of title 19 is within subpart O and, 
therefore, has been removed. However, it is not necessary to amend the 
list of airports authorized to accept flights to and from Cuba 
previously contained in 122.153(c) to add Key West International 
Airport, or any other airport, in order for that airport to receive 
flights to and from Cuba. With the removal of subpart O, any airport, 
including Key West International Airport, may request a new 
international flight to or from Cuba under the same procedures and 
requirements applicable to all other similarly situated airports and 
aircraft operators seeking to conduct international flights. In order 
to operate flights between the United States and Cuba, all airports and 
aircraft operators must comply with applicable regulatory requirements 
of DHS and its component agencies, such as CBP, the Transportation 
Security Administration (TSA), U.S. Immigration and Customs Enforcement 
(ICE) and the U.S. Coast Guard, as well as the regulatory requirements 
of OFAC, BIS, and the Department of Transportation's Federal Aviation 
Administration.

III. Conclusions--Regulatory Amendments

    After careful consideration of the comments received, DHS is 
adopting the interim regulations, as set forth in the IFR published in 
the Federal Register at 81 FR 14948 on March 21, 2016, as final without 
change.

Statutory and Regulatory Requirements

A. Statutory Requirements

    The Administrative Procedure Act (APA) requirements in 5 U.S.C. 553 
govern agency rulemaking procedures. Among other procedural 
requirements, the APA generally requires that a final rule have a 30-
day delayed effective date. The APA provides a full exemption from the 
requirements of section 553 for rules involving the foreign affairs 
function of the United States. See 5 U.S.C. 553(a)(1). This 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 clarify and simplify the 
regulations regarding air travel between the United States and Cuba and 
are consistent with President Trump's continued efforts to ensure that 
engagement between the United States and Cuba advances the interests of 
the United States and the Cuban people, including the mutual interest 
in facilitating lawful travel and safe civil aviation.\2\ See 82 FR 
48875. Accordingly, this final rule is not subject to the 30-day 
delayed effective date requirement.
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    \2\ National Security Presidential Memorandum on Strengthening 
the Policy of the United States Toward Cuba (June 16, 2017) Sec.  
2(d), (f).
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    Additionally, because this rule is not subject to the requirements 
of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

B. Executive Orders 12866 and 13771

    Executive Order 12866 (``Regulatory Planning and Review'') directs 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits. Rules involving the foreign 
affairs function of the United States are exempt from the requirements 
of Executive Order 12866. Executive Order 13771 (``Reducing Regulation 
and Controlling Regulatory Costs'') requires that whenever an agency 
promulgates a new regulation, it must identify at least two existing 
regulations to be repealed. It further directs that any new incremental 
costs associated with new regulations must be offset by the elimination 
of existing costs associated with two prior regulations. Pursuant to 
section 4(a), Executive Order 13771 does not apply to regulations 
issued with respect to a foreign affairs function of the United States.
    As discussed above, DHS has concluded 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. Accordingly, this rule is exempt from the 
requirements of Executive Orders 12866 and 13771.

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 Regulations

    For the reasons set forth above, the IFR amending part 122 of the 
CBP regulations (19 CFR part 122), which

[[Page 29797]]

was published in the Federal Register at 81 FR 14948 on March 21, 2016, 
is adopted as a final rule without change.

    Dated: June 14, 2019.
Kevin K. McAleenan,
Acting Secretary.
[FR Doc. 2019-13431 Filed 6-24-19; 8:45 am]
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