[Federal Register Volume 77, Number 27 (Thursday, February 9, 2012)]
[Proposed Rules]
[Pages 6704-6708]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2925]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

19 CFR Parts 4 and 122

[Docket No. USCBP-2012-0003]
RIN 1651-AA89


Exemptions From Entry Requirements and Report of Arrival 
Requirements for Certain Department of Defense Vessels and Aircraft

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: Certain vessels and aircraft owned or chartered by the 
Department

[[Page 6705]]

of Defense (DoD) are exempt from entry requirements and, in some cases, 
reporting requirements upon their arrival in the United States from a 
foreign place. This rule proposes to expand those exemptions to include 
additional DoD-owned or chartered vessels and aircraft when 
transporting certain cargo or passengers.

DATES: Comments must be received on or before April 9, 2012.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
    [squf] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2012-0003.
    [squf] Mail: U.S. Customs and Border Protection, Office of 
International Trade, Regulations and Rulings, Attention: Border 
Security Regulations Branch, 799 9th St. NW., 5th floor, Washington, DC 
20229-1179.
    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. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to: https://www.regulations.gov. Submitted 
comments may also be inspected during regular business days between the 
hours of 9 a.m. and 4:30 p.m. at U.S. Customs and Border Protection, 
Office of International Trade, Regulations and Rulings, Attention: 
Border Security Regulations Branch, 799 9th St. NW., 5th floor, 
Washington, DC 20229-1179. To inspect submitted comments, make 
arrangements in advance by calling Mr. Joseph Clark at (202) 325-0118.

FOR FURTHER INFORMATION CONTACT: Michel Chausse, CBP Office of Field 
Operations, telephone (202) 344-3656.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects on the 
proposed rule. CBP also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this 
proposed rule. Comments that will provide the most assistance to CBP in 
developing these procedures will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include data, information, or authority that support such recommended 
change.

Background

    Vessels and aircraft arriving in the United States from a foreign 
place are generally required to report their arrival to CBP and make 
entry. Under current regulations, certain vessels and aircraft owned or 
chartered by the Department of Defense (DoD) are exempt from entry 
requirements and, in some cases, reporting requirements upon their 
arrival in the United States from a foreign place. The exemptions 
generally apply when the vessel or aircraft is transporting cargo that 
is solely the property of DoD or when it is transporting passengers 
traveling on official business of the United States. This rule proposes 
to expand the exemptions to entry requirements and, to a lesser extent, 
arrival reporting requirements to improve the flow of cargo and 
passengers that support DoD missions.

Reporting Requirements

    Section 433 of the Tariff Act of 1930, as amended, requires vessels 
and aircraft arriving in the United States from a foreign place to 
report their arrival. 19 U.S.C. 1433. The statute authorizes the 
Secretary of Homeland Security (Secretary) to promulgate regulations 
concerning the manner and timing of reporting arrival for vessels and 
aircraft. Two regulatory provisions govern the method of reporting 
arrival to CBP for vessels and aircraft. First, concerning vessels, CBP 
regulations require that the master of a vessel arriving in the United 
States from a foreign port or place immediately report the arrival to 
the nearest CBP facility or other location designated by the port 
director. See 19 CFR 4.2. Second, regarding aircraft, CBP regulations 
require all aircraft entering the United States to provide advance 
notice of arrival, subject to certain exceptions. See 19 CFR 122.31.

Entry Requirements

    In contrast to reporting arrival, making entry is a more formal 
process and typically involves filing certain necessary information 
with CBP. Separate statutes provide for vessel and aircraft entry 
requirements and separate regulatory provisions implement them.
    First, sections 434 and 441 of the Tariff Act of 1930, as amended, 
govern vessel entry requirements. 19 U.S.C. 1434 and 1441. Section 434 
describes the vessels that are subject to formal entry requirements and 
authorizes the Secretary to promulgate regulations relating to the 
manner, format, and timeframe regarding the filing of the entry. 
Section 441 describes the types of vessels that are not required to 
make entry under section 434. CBP regulations require certain vessels, 
including vessels arriving in the United States from a foreign place, 
to make formal entry within 48 hours after the arrival at any port or 
place in the United States, unless specifically excepted by law. See 19 
CFR 4.3.
    Second, concerning aircraft, 19 U.S.C. 1644a grants the Secretary 
discretion to apply the laws and regulations of vessel entry and 
clearance to civil air navigation. Accordingly, CBP regulations provide 
that all aircraft coming into the United States from a foreign place 
are required to make entry, subject to specified exemptions. See 19 CFR 
122.41.

Current DoD Exemptions From Entry Requirements and Arrival Reporting

    Under existing regulations, certain vessels and aircraft owned or 
chartered by the DoD are exempt from entry requirements and, in some 
cases, reporting requirements upon their arrival in the United States 
from a foreign place. These exemptions generally apply when the vessel 
or aircraft is transporting cargo that is solely the property of DoD or 
when it is transporting passengers traveling on official business of 
the United States.

Vessels

    Pursuant to 19 U.S.C. 1441, certain public vessels and vessels of 
war are not subject to formal entry requirements. CBP regulations 
provide that neither a report of arrival nor entry is required of any 
vessel that is:
     Owned by, or under the complete control and management of 
the United States or any of its agencies;
     Manned by members of the uniformed armed services of the 
United States, by personnel in the civil service of the United States, 
or by both; and
     Transporting only property of the United States, or 
passengers traveling on official business of the United States, or is 
in ballast.

19 CFR 4.5(a). DoD vessels that satisfy these criteria are exempt from 
report of arrival and entry requirements. CBP regulations further 
provide that a DoD-chartered vessel will be exempt from entry, when it 
is manned entirely by the civilian crew of the vessel carrier under 
contract to DoD and transporting only cargo that is DoD property.

[[Page 6706]]

Aircraft

    CBP regulations provide exemptions for certain public and private 
aircraft and DoD-chartered aircraft from making entry. These 
regulations, however, do not provide exemptions from arrival reporting 
requirements. ``Public aircraft'' is defined as a government-owned 
aircraft that is carrying only property of the government or passengers 
traveling on official business of the government. See 19 CFR 122.1. CBP 
regulations provide an exemption from entry for DoD-chartered aircraft, 
but only if it is carrying cargo that is solely DoD property. 19 CFR 
122.41(b). Thus, under both the public aircraft exemption and the DoD-
chartered aircraft exemption, the cargo being transported must be the 
exclusive property of the government. In the case of passengers 
traveling on official business of the government, the entry exemption 
applies only if the aircraft is owned by the government.

Advance Cargo Information

    CBP regulations require vessels (19 CFR 4.7) and aircraft (19 CFR 
122.48a) arriving in the United States, to provide advance cargo 
information when the vessel or aircraft is required to make entry. 
Therefore, vessels and aircraft that are exempt from entry requirements 
are also exempt from the requirement to present advance cargo 
information.
    Currently, DoD-owned or DoD-chartered vessels and aircraft that are 
exempt from entry requirements are also exempt from advance cargo 
information requirements. Under this proposed rule, those additional 
vessels and aircraft that would be exempt from entry requirements would 
also be exempt from the advance cargo information requirements in 19 
CFR 4.7 and 122.48a.

Effect of Current Entry and Reporting Exemptions on DoD Missions

    Many vessels and aircraft that are under DoD's control and used to 
support DoD's missions do not fit within the current exemptions, either 
because the cargo is not the property of DoD or because the vessel or 
aircraft is a chartered vessel or aircraft. Therefore, formal entry, 
advance reporting, and, in some cases, reports of arrival are required. 
These requirements can impede the flow of cargo and passengers moved in 
support of the U.S. government's and DoD's missions.
    DoD transports all goods and passengers supporting its missions 
under DoD's control through its own transportation system, the Defense 
Transportation System (DTS). The DTS, administered pursuant to the DoD 
directive on Transportation and Traffic Management (DoD Directive 
4500.09E), is the system by which DoD manages the secure shipment of 
cargo and personnel in peace and in war. Although the cargo that is 
transported in the DTS is under the strict control of DoD, much of this 
cargo is not owned by DoD. The controlling DoD directive requires that 
any non-DoD traffic transported in the DTS be in support of the mission 
of DoD or the United States or be of an emergency, lifesaving nature 
(DoD Directive 4500.09E E4.3.1). Vessels and aircraft often carry, for 
example, defense contractor owned cargo used to support DoD missions, 
personal property (household goods) of military members, humanitarian 
cargo, or security assistance cargo. These conveyances are not covered 
by the current entry exemptions, even though this cargo is normally 
transported under DoD's control through the DTS. In fact, much of the 
cargo that moves in the DTS renders the conveyance on which it is 
transported ineligible for an entry exemption. These conveyances are 
currently subject to entry requirements and thus also subject to 
advanced electronic presentation of cargo information requirements.
    Under current regulations, although DoD-owned vessels and aircraft 
that transport passengers traveling on official U.S. business are 
exempt from entry, DoD-chartered vessels and aircraft are not exempt 
and must make entry if transporting any passengers. DoD often utilizes 
chartered vessels and aircraft to transport, for example, DoD 
personnel, personnel of the Red Cross or the United Service 
Organizations (USO), or DoD contractor employees, in addition to cargo. 
Even though all passengers transported on DoD conveyances must be 
approved to travel in the DTS, regardless of whether the conveyance is 
owned or chartered by DoD, the chartered vessel or aircraft would be 
subject to entry and advance cargo information requirements if 
transporting passengers, while DoD-owned vessels would not.

Proposed Changes to Entry and Reporting Requirements

    Based on the above considerations, CBP is proposing to revise the 
exemptions to better address the manner in which cargo and passengers 
are moved in support of DoD missions. CBP is proposing to relate the 
DoD exemptions from entry and reporting to the DTS. Specifically, CBP 
is proposing to add a general definition of the DTS in the relevant 
parts of the CBP regulations (part 4 for vessels and part 122 for 
aircraft). CBP also proposes to revise the current DoD exemptions to 
cover vessels and aircraft owned by, or under the complete control and 
management of DoD, or chartered by DoD, which transport only cargo and/
or passengers that have been approved for carriage in the DTS. The 
proposed exemptions would only apply to those chartered vessels or 
aircraft that are chartered in their entirety by DoD. Those vessels and 
aircraft that would be exempt under this proposal would also be exempt 
from the advance cargo information requirements in 19 CFR 4.7 and 
122.48a. The proposed changes would help ensure the unimpeded flow of 
cargo and passengers moved in support of the U.S. government's missions 
and ensure that cargo and passengers supporting the defense of our 
nation are not unnecessarily delayed.
    The proposed rule would not pose any new security risks for several 
reasons. First, DoD has strict security protocols for the conveyances 
it owns, controls, or charters and for the cargo and passengers those 
conveyances carry. Second, DoD has indicated that non-DoD owned cargo 
approved for carriage in the DTS undergoes the same stringent security 
protocols for transportation as DoD-owned cargo and that DoD has 
absolute control over non-DoD cargo carried in the DTS. Therefore, non-
DoD-owned cargo approved for carriage in the DTS poses no greater 
security threat than DoD-owned cargo that currently qualifies for the 
entry exemption. Likewise, DTS-approved passengers traveling on DoD-
chartered vessels and aircraft must undergo the same security protocols 
as those passengers traveling on conveyances owned by DoD. When CBP 
provided the initial exemption for DoD vessels and aircraft carrying 
only DoD property, neither DoD nor CBP fully appreciated the negative 
impact this restriction would have for DoD conveyances. The proposed 
expanded exemptions for cargo and passengers are intended to make CBP's 
exemptions more suitable to actual DoD transportation needs without 
posing security risks.
    The proposed exemptions concern only the formal entry, clearance, 
and, in some cases, reporting requirements of the conveyance under the 
CBP regulations in title 19 of the CFR. All other requirements would 
still be applicable unless exempt under the relevant authorities. For 
example, persons on board the conveyance would still be subject to all 
applicable inspection and immigration controls pursuant to title 8 of 
the CFR, even if the conveyance is exempt from the title 19 entry 
requirements. Similarly, the

[[Page 6707]]

title 7 agricultural regulations and relevant reporting requirements 
would still apply. This proposed rulemaking would not affect the scope 
or definition of the term ``public vessel'' in 19 U.S.C. 1441.

Additional, Non-Substantive Amendments

    In addition to the substantive amendments described above, CBP also 
proposes several non-substantive amendments to 19 CFR parts 4 and 122.
    To provide clearer organization, in sections 4.5 (``Government 
vessels''), CBP proposes to give headings to paragraphs (a), (b), and 
(c). CBP proposes to divide paragraph (a) of section 4.5 (``Exemptions 
from reports of arrival and entry'') into lower paragraphs that are 
headed ``Vessels owned by the United States,'' ``Additional DoD-owned 
vessels,'' and ``DoD-chartered vessels.'' These paragraphs would be 
further subdivided for additional clarity and ease of reading.
    In 4.5(a), CBP proposes to change the current phrase ``it is 
ballast'' to ``in ballast'' to reflect proper use of the term. 
Additionally, ``Department of Defense'' is to be abbreviated ``DoD'' in 
all but its first occurrence in 4.5(a). The phrase ``be entered'' in 
paragraph (b) would be changed to the proper phrase ``make formal 
entry,'' and paragraph (c) would include a reference to newly 
designated paragraph (a)(1) to eliminate ambiguity. With regard to the 
cargo declaration requirement in section 4.5 for DoD-chartered vessels 
(which can be found in proposed new paragraph (a)(3)(iii)), CBP 
proposes to include language to clarify that the duplicate cargo 
declaration form must be made available to the officer at the pier upon 
arrival. Finally, CBP proposes to replace the word ``shall'' where it 
appears in section 4.5 with ``will'' or ``must,'' as applicable.
    CBP also proposes to divide paragraph (b) of section 122.41 to 
include lower paragraphs (b)(1) and (b)(2).

Executive Order 12866

    Executive Order 12866, as supplemented by Executive Order 13563, 
requires Federal agencies to assess the benefits and costs of 
regulatory action, recognizing that some costs and benefits are 
difficult to quantify. Significant regulatory actions include those 
that may ``(1) [h]ave an annual effect on the economy of $100 million 
or more or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) [c]reate a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; (3) 
[m]aterially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) [r]aise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in this Executive Order.'' The proposed rule is not a ``significant 
regulatory action'' under Executive Order 12866. As such, the Office of 
Management and Budget has not reviewed this rule under that Order.
    The proposed rule, if finalized, would extend the existing 
exemption for cargo and passengers transported by DoD to include all 
vessels and aircraft chartered by, owned by, or under the complete 
control and management of DoD that transport cargo and/or passengers 
that have been approved for carriage in the DTS. Extending the existing 
exemption facilitates the operations of another government agency, thus 
conveying a benefit to that agency. Because it merely extends the 
exemption to cargo and passengers approved for carriage in the DTS, the 
proposed regulation will not impose any costs or confer any benefits to 
private citizens or businesses. CBP welcomes comments on this 
conclusion.

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 an 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).
    This rule proposes to extend the current DoD exemption to entry to 
include vessels and aircraft chartered by, owned by, or under the 
complete control and management of DoD when they are transporting cargo 
and/or that are approved for carriage in the DTS. Because this proposed 
exemption does not impose any new costs on small entities, it will not 
have a significant economic impact on a substantial number of small 
entities. We welcome comments on this conclusion. If we do not receive 
any comments contradicting our findings, we will certify that this rule 
will not have a significant economic impact on a substantial number of 
small entities at the final rule stage.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1955 (44 U.S.C. 
3507 et seq.), this document contains no new information and collection 
requirements that require Office of Management and Budget approval.

Signing Authority

    This notice of proposed rulemaking is being issued in accordance 
with 19 CFR 0.2(a). Accordingly, this notice of proposed rulemaking is 
signed by the Secretary of Homeland Security.

List of Subjects

19 CFR Part 4

    Customs duties and inspection, Exports, Freight, Harbors, Maritime 
carriers, Oil pollution, Reporting and recordkeeping requirements, 
Vessels.

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.

Proposed Amendments to the Regulations

    For the reasons set forth in the preamble, CBP proposes to amend 19 
CFR parts 4 and 122 as set forth below.

PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES

    1. The general authority citation for part 4 and specific citations 
for Sec.  4.5 continue to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624, 
2071 note; 46 U.S.C. 501, 60105.
* * * * *
    Section 4.5 is also issued under 19 U.S.C. 1441;
* * * * *
    2. Amend Sec.  4.0 by adding paragraph (h) to read as follows:


Sec.  4.0  General definitions.

* * * * *
    (h) Defense Transportation System (DTS). The Defense Transportation 
System (DTS) is the transportation system controlled by the Department 
of Defense (DoD) under which DoD manages the secure shipment of cargo 
and personnel in peace and war. It is administered pursuant to DoD 
Directive 4500.09E.
    3. Revise Sec.  4.5 to read as follows:

[[Page 6708]]

Sec.  4.5  Government vessels.

    (a) Exemptions from reports of arrival and entry.--(1) Vessels 
owned by the United States. No report of arrival or entry will be 
required of any vessel:
    (i) Owned by or under the complete control and management of the 
United States or any of its agencies;
    (ii) Manned wholly by members of the uniformed services of the 
United States, or by personnel in the civil service of the United 
States, or by both; and
    (iii) Either in ballast or transporting only property of the United 
States and/or passengers traveling on official business of the United 
States.
    (2) Additional DoD-owned vessels. For DoD-owned vessels not meeting 
the requirements of paragraph (a)(1) of this section, no report of 
arrival or entry will be required if the vessel is:
    (i) Owned by or under the complete control and management of the 
U.S. Department of Defense (DoD);
    (ii) Manned wholly by members of the uniformed services of the 
United States, or by personnel in the civil service of the United 
States, or by both; and
    (iii) Either in ballast or transporting only passengers and/or 
cargo approved for carriage in the Defense Transportation System (DTS), 
as defined in Sec.  4.0(h) of this part.
    (3) DoD-chartered vessels. (i) Entry exemption. Entry will not be 
required of any vessel chartered by DoD, manned entirely by the 
civilian crew of the vessel carrier under contract to DoD, and carrying 
only passengers and/or cargo approved for carriage in the DTS.
    (ii) Clearance requirement. Notwithstanding Sec.  4.60(b)(3) of 
this part, no DoD-chartered vessel operated as provided in this 
paragraph (a)(3) is exempt from vessel clearance requirements.
    (iii) Cargo declaration requirement upon arrival. If any cargo is 
on board a DoD-chartered vessel, the master or commander of the DoD-
chartered vessel arriving from abroad must file a Cargo Declaration, 
CBP Form 1302, or an equivalent form issued by DoD, in duplicate. The 
original of each Cargo Declaration or equivalent form required under 
this paragraph must be filed with the port director within 48 hours 
after the arrival of the vessel. The other copy must be made available 
for use by the discharging officer at the pier and must be presented 
upon arrival of the vessel. See Sec.  148.73 of this chapter with 
respect to baggage on carriers operated by DoD.
    (b) Non-exempt vessels. The arrival of every vessel owned or 
controlled and manned as described in paragraph (a) of this section but 
transporting property or passengers other than property of the United 
States, passengers traveling on official business of the United States, 
or passengers and/or cargo approved for carriage in the DTS, and every 
vessel so owned or controlled, but not so manned, whether in ballast or 
transporting cargo or passengers, must be reported in accordance with 
Sec.  4.2 and the vessel must make formal entry in accordance with 
Sec.  4.9.
    (c) Foreign government vessels. Every vessel owned by, or under the 
complete control and management of, any foreign nation will be exempt 
from or subject to the laws relating to report of arrival and entry 
under the same conditions as a vessel owned by or controlled by the 
United States, as described in paragraph (a)(1) of this section.

PART 122--AIR COMMERCE REGULATIONS

    4. 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.

    5. Amend Sec.  122.1 by adding paragraph (n) to read as follows:


Sec.  122.1  General definitions.

* * * * *
    (n) Defense Transportation System (DTS). The Defense Transportation 
System (DTS) is the transportation system controlled by the Department 
of Defense (DoD) under which DoD manages the secure shipment of cargo 
and personnel in peace and war. It is administered pursuant to DoD 
Directive 4500.09E.
    6. Amend Sec.  122.41 as follows:
    a. Revise paragraph (b);
    b. Redesignate paragraph (c) as paragraph (d); and
    c. Add new paragraph (c).
    The revision and addition read as follows:


Sec.  122.41  Aircraft required to enter.

* * * * *
    (b) Aircraft owned by or under the complete control and management 
of the U.S. Department of Defense (DoD), if the aircraft is:
    (1) Manned entirely by members of the armed forces or civil service 
of the United States; and
    (2) Transporting only passengers and/or cargo approved for carriage 
in the Defense Transportation System (DTS), as defined in Sec.  
122.1(n) of this part.
    (c) Aircraft chartered by DoD, if the aircraft is:
    (1) Manned entirely by the civilian crew of the air carrier under 
contract to DoD; and
    (2) Transporting only passengers and/or cargo approved for carriage 
in the DTS.
* * * * *

    Dated: February 3, 2012.
Janet Napolitano,
Secretary.
[FR Doc. 2012-2925 Filed 2-8-12; 8:45 am]
BILLING CODE 9111-14-P