Rules and Regulations. Final rule

2,087 words·~9 min read·/register/2023/11/16/2023-25280·

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BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection 19 CFR Part 101 [CBP Dec. No. 23-05] RIN 1651-AB44 Management of Customs Ports of Entry and Customs Stations AGENCY: U.S. Customs and Border Protection, DHS. ACTION: Final rule. SUMMARY: In this final rule, the Department of Homeland Security clarifies that the Secretary of Homeland Security has the authority to establish, rearrange or consolidate, and discontinue Customs ports of entry and Customs stations and revises the Customs and Border Protection regulations to reflect this clarification.

DATES: This rule is effective on November 16, 2023. FOR FURTHER INFORMATION CONTACT: Siobhan Chambers, Branch Chief, Modeling and Optimization, Office of Field Operations, Planning, Program Analysis and Evaluation, Operational and Enterprise Analytics, U.S. Customs and Border Protection, at *siobhan.m.chambers@cbp.dhs.gov* or

(202)325-3935. SUPPLEMENTARY INFORMATION: I. Background U.S. Customs and Border Protection (CBP), a component of the Department of Homeland Security, operates two types of ports of entry, commonly referred to as immigration ports of entry and Customs ports of entry. Immigration ports of entry are those ports of entry used for the processing of travelers arriving by any means of travel into the United States. *See* title 8 Code of Federal Regulations

(CFR)section 235.1 (8 CFR 235.1). Customs ports of entry, which include customs service ports, are those entry locations authorized to receive entries of merchandise for the collection of duties and for the enforcement of the various provisions of the customs and navigation laws. *See* 19 CFR 101.1. In addition, CBP operates Customs stations, which are locations outside the boundaries of Customs ports of entry, but which, like Customs ports of entry, are authorized to receive entries of merchandise and enforce the various provisions of the customs and navigation laws. 1 *See* 19 CFR 101.1. 1 19 CFR 101.3 lists both the Customs ports of entry and the Customs service ports. 19 CFR 101.4 lists the Customs stations, all of which are supervised by a Customs port of entry. The supervising port of entry for each Customs station is also listed in 19 CFR 101.4. In most cases, Customs ports of entry and Customs stations exist within the same physical location as immigration ports and utilize the same CBP personnel for processing travelers and merchandise. Despite the use of the same location and personnel, there are separate regulations governing the authority to establish, rearrange, consolidate, and close the immigration and Customs ports and stations. Authority regarding management of immigration ports is addressed in title 8 of the CFR, while Customs port and Customs station authority is addressed in title 19 of the CFR. *See* 8 CFR 100.4 and 234.4; 19 CFR 101.3 and 101.4. With regard to customs ports of entry, 19 U.S.C. 2, authorizes the President “to discontinue [customs] 2 ports of entry by abolishing the same or establishing others in their stead.” President Truman delegated this authority to the Secretary of the Treasury in 1951. 3 The Secretary of the Treasury then delegated this authority to the Deputy Assistant Secretary (Regulatory, Tariff, and Trade Enforcement) through the regulation in Section 101.3 of Title 19 of the CFR (19 CFR 101.3). That regulation authorizes the Assistant Secretary to “establish, rearrange or consolidate, and to discontinue customs ports of entry as the needs of the Customs Service may require.” The Homeland Security Act of 2002 (the Act) transferred this authority to the Secretary of DHS. 4 See Public Law 107-22296, Section 403, 6 U.S.C. 203. Despite this transfer of authority to the Secretary of DHS, the regulation at 19 CFR 101.3 still refers to the Treasury officers. 2 The word “customs” added here for clarity. Although the word “customs” does not appear in this section, Title 19 of the U.S. Code specifically deals with customs duties and therefore this section relates to customs ports as defined herein. 3 Executive Order 10289 (16 FR 9499). 4 In 2006, the Secretary of Homeland Security issued a Delegation Order in which he delegated certain authorities to the Commissioner of CBP but specifically reserved to himself the authority to “discontinue [Customs] ports of entry by abolishing the same and establishing others in their stead.” *See* DHS Delegation Order 7010.3. The authority to establish, rearrange or consolidate, and to discontinue Customs stations is held by the Secretary of DHS pursuant to the Act. *See* Sec. 403, Public Law 107-296, 6 U.S.C. 203. This authority is not specifically referenced in the title 19 CFR regulations. Prior to the passage of the Act, the authority to manage immigration ports of entry was held by the Commissioner of the Immigration and Nationality Service (INS). The Act transferred immigration related authorities, including those related to immigration ports of entry, from the Commissioner of the INS to the Secretary of DHS. *See* title IV, Public Law 107-296, 6 U.S.C. Chapter 1. The applicable regulations, 8 CFR 100.4 and 234.4, specify that the Commissioner of CBP (the Commissioner) has the authority to manage immigration ports of entry. 5 5 8 CFR 1.2 provides that after March 1, 2003, references to “Commissioner” mean the Director of U.S. Citizenship and Immigration Services, the Commissioner of U.S. Customs and Border Protection, and the Director of U.S. Immigration and Customs Enforcement, as appropriate in the context in which the term appears. In the context of immigration port authority in 8 CFR 100.4 and 234.4, “Commissioner” means the Commissioner of CBP. In this rule, DHS is clarifying that the authority to establish, rearrange or consolidate, and to discontinue Customs ports of entry and Customs stations rests with the Secretary of Homeland Security and not the Secretary of the Treasury. This rule revises the applicable regulations in title 19 of the CFR so that they are consistent with the Act. Specifically, DHS is amending 19 CFR 101.3 to reflect that the Secretary of DHS has the authority to establish, rearrange or consolidate, and discontinue Customs ports of entry and Customs service ports. DHS is also amending this section to include a reference to “Customs service ports,” which are a type of “Customs port of entry” as noted above. The specific reference to “Customs service ports” clarifies that the Secretary has the authority to establish, rearrange or consolidate, and to discontinue all Customs ports of entry, including service ports. DHS is also amending 19 CFR 101.4 to reflect that the Secretary has the authority to establish, rearrange or consolidate, and discontinue Customs stations as operational needs may require. II. Statutory and Regulatory Requirements A. Administrative Procedure Act The Administrative Procedure Act

(APA)generally requires agencies to publish a notice of proposed rulemaking in the **Federal Register** and provide interested persons the opportunity to submit comments. 5 U.S.C. 553(b), (c). The APA also generally requires that substantive rules have a 30-day delayed effective date from the date of publication. *See* 5 U.S.C. 553(d). However, certain exceptions are provided. The APA provides an exception from notice and comment procedures as well as the requirement for a 30-day delayed effective date when the rule is a matter relating to agency management. *See* 5 U.S.C. 553(a)(2). In this rule DHS is merely updating regulations to reflect that the Secretary of DHS has the authority to establish, rearrange or consolidate, and discontinue Customs ports of entry and Customs service ports. Therefore, this is merely a matter of agency management. Additionally, the APA provides an exception to notice and comment requirements when the rule is one of “agency organization, procedure, or practice.” *See* 5 U.S.C. 553(b)(A). This exception also applies because this rule merely amends the regulations to accurately reflect the Secretary of DHS's authority regarding ports and has no effect on the public. Based on the above considerations, this rule is exempt from the notice and comment and delayed effective date provisions of the APA pursuant to 5 U.S.C. 553(a)(2) and 5 U.S.C. 553(b)(A). B. Executive Orders 13563 and 12866 Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this regulation. These regulatory changes are being made to reflect the transfer of authority to establish, rearrange and close Customs ports of entry and Customs stations from the Secretary of the Treasury to the Secretary of DHS pursuant to the Act. These changes have no effect on the public as there will be no changes to services at the ports and no economic costs or benefits. Therefore, this rule has no economic impact. C. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires agencies to assess the impact of regulations on small entities. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people). Since a notice of proposed rulemaking was not necessary, a regulatory flexibility analysis is not required. List of Subjects in 19 CFR Part 101 Harbors, Organization and functions (Government agencies), Seals and insignia, and Vessels. For reasons set forth in the preamble, part 101 of title 19 of the Code of Federal Regulations is amended as set forth below: PART 101—GENERAL PROVISIONS 1. The authority citation for part 101 continues to read as follows: Authority: 5 U.S.C. 301; 6 U.S.C. 101, et. seq.; 19 U.S.C. 2, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1623, 1624, 1646a. Section 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b; Section 101.5 also issued under 19 U.S.C. 1629; Section 101.9 also issued under 19 U.S.C. 1411-1414. 2. Amend § 101.3 by revising paragraph

(a)to read as follows: § 101.3 Customs service ports and ports of entry.

(a)*Designation of Customs field organization.* The Secretary of Homeland Security is authorized to establish, rearrange or consolidate, and to discontinue Customs ports of entry and Customs service ports as operational needs may require. 3. Amend § 101.4 by revising paragraph

(c)to read as follows: § 101.4 Entry and clearance of vessels at Customs stations.

(c)*Customs stations designated.*

(1)The Secretary of Homeland Security is authorized to establish, rearrange, or consolidate, and to discontinue Customs stations as operational needs may require.

(2)The Customs stations and the ports of entry having supervision thereof are listed below: Customs station Supervisory port of entry Alaska Barrow Fairbanks. Dutch Harbor Anchorage. Eagle Alcan. Fort Yukon Fairbanks. Haines Dalton Cache. Hyder Ketchikan. Kaktovik (Barter Island) Fairbanks. Kenai (Nikiski) Anchorage. Northway Alcan. Pelican Juneau. Petersburg Wrangell. California Campo Tecate. Otay Mesa San Diego. San Ysidro San Diego. Colorado Colorado Springs Denver. Delaware Lewes Philadelphia, PA. Florida Fort Pierce West Palm Beach. Green Cove Springs Jacksonville. Port St. Joe Panama City. Indiana Fort Wayne Indianapolis. Maine Bucksport Belfast. Coburn Gore Jackman. Daaquam Jackman. Easton Fort Fairfield. Estcourt Fort Kent. Forest City Houlton. Hamlin Van Buren. Maryland Salisbury Baltimore. Massachusetts Provincetown Plymouth. Michigan Alpena Saginaw-Bay City-Flint. Detour Sault Ste. Marie. Escanaba Sault Ste. Marie. Grand Haven Muskegon. Houghton Sault Ste. Marie. Marquette Sault Ste. Marie. Rogers City Saginaw-Bay City-Flint. Minnesota Crane Lake Duluth, MN-Superior, WI. Ely Duluth, MN-Superior, WI. Lancaster Noyes. Oak Island Warroad. Mississippi Biloxi Mobile, AL. Montana Wild Horse Great Falls. Willow Creek Great Falls. New Jersey Atlantic City Philadelphia-Chester, PA and Wilmington, DE. Port Norris Philadelphia-Chester, PA and Wilmington, DE. Tuckerton Philadelphia-Chester, PA and Wilmington, DE. New York Cannons Corners Champlain-Rouses Point. Churubusco Trout River. New Hampshire Pittsburg Beecher Falls, VT. Monticello Houlton, ME. Orient Houlton, ME. Ste. Aurelie Jackman, ME. St. Pamphile Jackman, ME. New Mexico Antelope Wells (Mail: Hachita, NM) Columbus, NM. North Dakota Grand Forks Pembina. Minot Pembina. Ohio Akron Cleveland. Fairport Harbor Ashtabula/Conneaut. Lorain Sandusky. Marblehead-Lakeside Sandusky. Put-in-Bay Sandusky. Oklahoma Muskogee Tulsa. Texas Amistad Dam Del Rio. Boquillas Presidio. Falcon Dam Roma. Fort Hancock Fabens. Los Ebanos Rio Grande City. Marathon El Paso. Vermont Beebe Plaine Derby Line. Canaan Beecher Falls. East Richford Richford. Newport Derby Line. North Troy Derby Line. West Berkshire Richford. Alejandro N. Mayorkas, Secretary. [FR Doc. 2023-25280 Filed 11-15-23; 8:45 am]

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