[Federal Register Volume 62, Number 133 (Friday, July 11, 1997)]
[Rules and Regulations]
[Pages 37131-37133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18206]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Parts 101 and 122
[T.D. 97-64]
Customs Service Field Organization; Establishment of Sanford Port
of Entry
AGENCY: Customs Service, Treasury.
ACTION: Final rule.
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SUMMARY: This document amends the Customs Regulations pertaining to
Customs field organization by establishing a new port of entry at
Sanford, Florida, and deleting the Sanford Regional Airport from the
list of user-fee airports. The new port of entry, designated Orlando-
Sanford Airport, is located in Central Florida. This change will assist
the Customs Service in its continuing efforts to achieve more efficient
use of its personnel, facilities, and resources, and to provide better
service to carriers, importers, and the general public.
EFFECTIVE DATE: November 10, 1997.
FOR FURTHER INFORMATION CONTACT: Harry Denning, Office of Field
Operations, Resource Management Division (202) 927-0196.
SUPPLEMENTARY INFORMATION:
Background
In 1991 Sanford Regional Airport began operating as a user-fee
airport. By 1993, a report prepared for the Central Florida Regional
Airport Board, which manages the airport at Sanford, showed Sanford
Regional Airport as the fastest growing airport for international
passenger clearance services in Florida. Applying the criteria used by
Customs since 1973 for establishing ports of entry (see, Treasury
Decision (T.D.) 82-37 (47 FR 10137), as revised by T.D. 86-14 (51 FR
4559) and T.D. 87-65 (52 FR 16328)), to the figures projected by the
Central Florida Regional Airport Board, Customs believed that
sufficient justification existed for redesignating the airport facility
from its user-fee status to that of a port of entry.
The report projected that in an approximate six-month period in
1996 the airport would process over 100,000 international passengers.
(For 1996, the actual number of international passengers processed
exceeded 272,000.) As Customs criteria specify a minimum annual
workload of 15,000 international air passengers for establishment of a
port of entry, the Sanford airport facility clearly met that criterion.
The modes of transportation serving the port of entry and the minimum
population base within the immediate service area also are adequate to
establish a port of entry at Sanford. Accordingly, Customs proposed to
establish the port of entry in the belief that such a designation would
help Customs achieve the more efficient use of its personnel,
facilities, and resources, and provide better services to carriers,
importers, and the public in Central Florida.
On June 17, 1996, Customs published a notice of proposed rulemaking
in the Federal Register (61 FR 30552) that solicited comments
concerning a proposal to amend Sec. 101.3(b), Customs Regulations (19
CFR 101.3), by establishing a new port of entry at Sanford, Florida,
and Sec. 122.15(b), by removing the Sanford Regional Airport from the
list of user-fee airports.
The public comment period for the proposed amendments closed July
9, 1996.
Discussion of Comments
Five comments were received: Two in favor and three against. A
discussion of the comments follows:
Comment: Two commenters argue that there is no present legal
authority or existing procedure that allows Customs to force any
airport to become a port of entry against its desire, i.e., without the
airport itself initiating the request for a change in status, and the
third commenter argues that since there has been no such request made,
Customs decision to change the status constitutes an arbitrary
determination. One of the commenters further argues that the statute
providing for the rearranging of customs districts (19 U.S.C. 2)
appears to permit the establishment of ports of entry only in
connection with replacing another port or ports that have been
discontinued.
One of the commenters (a private terminal operator) also states
that it decided to develop its new international terminal facility at
Sanford based on that facility remaining a user-fee airport; that to
change the airport's designation to that of a port of entry could
completely undermine the operator's legitimate business expectations
regarding a development project backed by millions of private
investment dollars, and would frustrate the operator's ability to use
its facility for the only purpose for which it is economically viable.
In short, the commenter believes that the establishment of a port of
entry at the Sanford airport and the termination of the airport's user-
fee status would be grossly and patently unfair and, without
compensation by the government,
[[Page 37132]]
would amount to an unconstitutional taking.
Customs Response: The statutory scheme which establishes Customs
field organization to administer and enforce the customs and related
laws of the United States is found at 19 U.S.C. 1 and 2, which allow
for ports of entry, and at 19 U.S.C. 58b, which allows for user-fee
arrangements at certain small facilities.
Section 2 of title 19 of the United States Code (19 U.S.C. 2),
allows for the rearrangement and limitation of districts and the
changing of locations. This statute, in part, authorizes the President
from time to time, as the exigencies of the service may require, to
rearrange, by consolidation or otherwise, the several customs
collection districts and to discontinue ports of entry by abolishing
the same or establishing others in their stead. In 1951, the President
delegated his authority to the Secretary of the Treasury (Exec. Order
10289 of September 17, 1951, 16 FR 9499, 3 CFR parts 1949-1953 Comp. p.
787, reprinted in 3 U.S.C. 301 note) who, in 1995, delegated the
authority to the Deputy Assistant Secretary for Regulatory, Tariff, and
Trade Enforcement (19 CFR 101.3(a)). Further, unlike the statute
providing for the establishment of a user-fee facility, this statute
does not require any local consent in the establishment of a port of
entry. The criteria Customs employs to determine whether a facility
should be designated as a port of entry are not regulatory, and were
published as specified above so that communities seeking new or
expanded Customs services could justify to Customs the expense of
maintaining a new office or expanding service at an existing location.
Customs does not agree with the commenter's argument that the
statute permits the establishment of ports of entry only in connection
with the simultaneous replacement of another port or ports that have
been discontinued. The Secretary has interpreted 19 U.S.C. 2 to provide
authority to the President and his delegate to establish ports of entry
without the simultaneous abolition of other ports. See, e.g., T.D. 95-
62 (60 FR 41804, dated Aug. 14, 1995, providing for the port of entry
at Rockford, Illinois) and T.D. 96-3 (60 FR 67056, dated Dec. 28, 1995,
providing for the port of entry at Sioux Falls, South Dakota). While
the Secretary has not abolished ports of entry simultaneously with the
establishment of these ports of entry, the number of ports of entry has
actually decreased. Thus, the interpretation of this statute suggested
by the commenter is contrary to the position of the Treasury Department
as reflected in longstanding practice and the plain language of the
statute grants the Secretary, as the President's delegate, the
authority to determine that the exigencies of the Customs Service
require that Sanford be designated as a port of entry.
Section 58b of title 19 of the United States Code (19 U.S.C. 58b),
entitled ``User Fee for Customs Services at Certain Small Airports and
Other Facilities,'' provides, in part, that the Secretary may designate
airports, seaports, and other facilities as recipients of customs
services on a fee-basis only if he has made a determination that the
volume or value of business cleared through such facility is
insufficient to justify the availability of customs services at such
facility. But when the volume or value of business cleared through such
a designated user-fee facility reaches such a level justifying the
availability of customs services at the facility, Customs may make a
determination concerning that facility's continuing status within
Customs field organization. This is the circumstance which has overcome
Sanford; based on its own report, not that of Customs, international
passenger workload figures are far in excess of those normally
considered adequate for port of entry status. Accordingly, Customs has
made a determination that the volume of business cleared through this
facility is no longer ``insufficient to justify the availability of
customs services'' at this facility and that Sanford should be
designated as a port of entry. Concerning port of entry status, it
should be noted that facilities are usually helped by this designation,
as they are able to offer permanent and a full range of Customs
services instead of just temporary and limited ones that are based on a
user-fee arrangement.
Concerning the regulatory takings argument advanced, it is Customs
position that a change in designation of a particular field location
does not constitute a taking of property for public use.
Comment: One commenter states that all user-fee airports should be
treated similarly and that the proposed action threatens all other
small user-fee airports, such as Daytona Beach and Melbourne, Florida,
who now may be pushed into port of entry status with its associated
higher costs. The commenter alleges that unequal and discriminatory
treatment is being imposed on Sanford; the commenter claims that user-
fee airports at Ft. Myers, Florida and Wilmington, Ohio for years have
exceeded the minimum criteria for establishing port of entry status,
whereas, Sanford's status is to be changed based on projected passenger
counts.
Customs Response: There is nothing automatic about when a
facility's designation must be changed into another designation. As
discussed above, Customs field organization is based on the needs of
the entire Customs Service, as determined by the Secretary of the
Treasury.
Concerning the referenced user-fee airports located at Ft. Myers
and Wilmington, Customs is currently looking into whether Ft. Myers,
Florida, should be redesignated as a port of entry; in the case of
Wilmington, Ohio, Customs has already determined that that location
does not meet any of the criteria for port of entry status.
Comment: One commenter claims that because there was no local
request for port of entry status Customs has de facto established,
without proper notice, a new, broadly applicable procedure for creating
new ports of entry, which possibly violates the requirement of 5 U.S.C.
551 [sic] that each agency publish ``the nature and requirements of all
formal and informal procedures available.'' The commenter asserts that
before applying this new procedure in a specific case, Customs should
publish a general notice alerting the public to the new procedure.
Customs Response: This comment misinterprets the public information
requirements of the Administrative Procedure Act (APA) and the
publication of the criteria for establishing ports of entry. Regarding
the APA, section 552 of the APA (5 U.S.C. 552) requires, in part, that
agencies publish in the Federal Register information pertaining to
descriptions of its central and field organization for informational
purposes, which Customs does in Part 101 of the Customs Regulations.
Concerning the notice and public comment procedures of section 553 of
the APA (5 U.S.C. 553), which applies to agency rulemaking, Customs has
followed these procedures in its proposal to change the designation of
Sanford Airport.
Regarding the publication of the criteria for establishing ports of
entry, no new procedure for establishing ports of entry has been
established. As stated above, the authority to designate ports of entry
is a plenary authority vested in the President or his delegate under
the provisions of 19 U.S.C. 2. Customs publication of the criteria for
establishing ports of entry does not operate to inhibit that plenary
authority to establish ports of entry ``as the exigencies of the
Service may require,''
[[Page 37133]]
but rather serves to inform those communities interested in obtaining
such government capabilities to focus their requests for such status on
the criteria actually utilized by the Treasury Department.
Conclusion
After analysis of the comments and further review of the matter,
Customs has determined that Sanford Regional Airport no longer
qualifies as a small, user-fee facility under the provisions of 19
U.S.C. 58b, and that Customs needs in the administration and
enforcement of customs and related laws would best be served by
establishing Sanford as a port of entry. Accordingly, Customs has
decided to adopt the proposed amendments to part 101 and 122 of the
Customs Regulations, published in the Federal Register on June 17, 1996
(61 FR 30552). However, a delayed effective date is observed because
this document will serve as the written notice of termination of user-
fee status to the Sanford Regional Airport as required by
Sec. 122.15(c).
The Regulatory Flexibility Act, and Executive Order 12866
Pursuant to provisions of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.), it is certified that these amendments will not have a
significant economic impact on a substantial number of small entities,
as these amendments concern the status of only one airport facility.
Accordingly, these amendments are not subject to the regulatory
analysis or other requirements of 5 U.S.C. 603 and 604. These
amendments do not meet the criteria for a ``significant regulatory
action'' as specified in Executive Order 12866.
List of Subjects
19 CFR Part 101
Customs duties and inspection, Customs ports of entry, Exports,
Imports, Organization and functions (Government agencies), Reporting
and recordkeeping requirements.
19 CFR Part 122
Air carriers, Aircraft, Airports, Air transportation, Customs
duties and inspection, Organization and functions (Government
agencies), Reporting and recordkeeping requirements.
Amendments to the Regulations
For the reasons stated above, parts 101 and 122 of the Customs
Regulations (19 CFR parts 101 and 122) are amended as set forth below:
PART 101--GENERAL PROVISIONS
1. The general authority citation for Part 101 and the specific
authority for Sec. 101.3 continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States), 1623, 1624.
Section 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b;
* * * * *
2. Section 101.3(b)(1) is amended by adding, in appropriate
alphabetical order, under the state of Florida ``Orlando-Sanford
Airport'' in the ``Ports of entry'' column and ``T.D. 97-64'' in the
adjacent ``Limits of port'' column.
PART 122--AIR COMMERCE REGULATIONS
1. The authority citation for Part 122 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1433, 1436, 1459,
1590, 1594, 1623, 1624, 1644,; 49 U.S.C. App. 1509.
2. Section 122.15(b) is amended by removing ``Sanford, Florida''
from the column headed ``Location'' and, on the same line, ``Sanford
Regional Airport'' in the column headed ``Name''.
Dated: March 24, 1997.
George J. Weise,
Commissioner of Customs.
[FR Doc. 97-18206 Filed 7-10-97; 8:45 am]
BILLING CODE 4820-02-P
