Customs Service Field Organization; Establishment of Sanford Port of Entry

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]

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