[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]
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