Collection of Fees Under the Dedicated Commuter Lane Program; Port Passenger Accelerated Service System (PORTPASS) Program

Federal RegisterSep 29, 1995

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 235, 286 and 299

[INS No. 1675-94]

RIN 1115-AD82

Collection of Fees Under the Dedicated Commuter Lane Program;

Port Passenger Accelerated Service System (PORTPASS) Program

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the Immigration and Naturalization

Service (Service) regulations: To allow for implementation of

additional land border inspection fee projects designed to facilitate

the entry of identified, low-risk, legitimate border crossers on the

northern border; to allow for the implementation of a pilot dedicated

commuter lane (DCL) to facilitate the entry of identified, low-risk,

legitimate border crossers on the California-Mexico border; to

incorporate into 8 CFR 235.13 those provisions currently set forth in 8

CFR 286.8 pertaining to port designations and inspections of persons

applying for admission to the United States; to increase the pool of

eligible participants in pilot projects; and to clarify fee and

application requirements of project participants. This rule is

necessary to enhance inspection services at land border Ports-of-Entry

(POEs) on the northern border and on the California-Mexico border,

while still safeguarding those borders.

DATES: This interim rule is effective September 29, 1995. Written

comments must be received on or before November 28, 1995.

ADDRESSES: Please submit written comments, in triplicate, to the Policy

Directives and Instructions Branch, Immigration and Naturalization

Service, 425 I Street, NW., Room 5307, Washington, DC 20536, Attn:

Public Comment Clerk. To ensure proper handling, please reference INS

No. 1675-94 on your correspondence. Comments are available for public

inspection at this location by calling (202) 514-3048 to arrange for an

appointment.

[[Page 50387]]

FOR FURTHER INFORMATION CONTACT: Robert A. Mocny, Assistant Chief

Inspector, Inspections Division, Immigration and Naturalization

Service, 425 I Street, NW., Room 7228, Washington, DC 20536, telephone

(202) 514-3275.

SUPPLEMENTARY INFORMATION: The provisions of Public Law 101-515, dated

November 5, 1990, authorized the establishment of pilot projects at

land border POEs for which a fee may be charged and collected for

inspection services provided at land border POEs. The implementing

regulation which established pilot programs for the charging of a land

border user fee for inspection services was published by the Service on

May 13, 1991, at 56 FR 21917-21920. The interim rule placed all

eligibility requirements, application processes, and compliance

requirements pertaining to inspection user fees in Sec. 286.6.

All land border pilot projects were originally scheduled to

terminate on September 30, 1993. This deadline was extended to

September 30, 1996, by Public Law 103-121, October 27, 1993. Public Law

103-121 also limited land border pilot projects to the northern border

of the United States. On August 26, 1994, Congress passed Public Law

103-217, permitting land border pilot projects on the California-Mexico

border. This interim rule, therefore, also amends Service regulations

as necessary to implement a pilot DCL on the California-Mexico border.

In addition to adding a variety of border inspection pilot projects

to selected POEs on the northern and southern land borders, this rule

will move application and eligibility requirements for those persons

seeking to participate in any of the pilot projects to part 235 of this

chapter. By expanding and testing pilot projects on land borders, the

entry of low-risk, legitimate border crossers will be facilitated and

integrity of the United States land borders maintained.

Port Passenger Accelerated Service System (PORTPASS) Program

This rule seeks to expand the testing of land border inspection

pilot programs, hereinafter collectively known as the Port Passenger

Accelerated Service System (PORTPASS) Program. It will add a new

Sec. 235.13, in which general criteria used by the Service to establish

pilot inspection programs on the northern and California-Mexico border

will be set forth. PORTPASS program eligibility requirements,

application procedures, and compliance requirements will be included in

the new Sec. 235.13 because these program elements are inspection

functions. The present provisions in Sec. 286.8, relating to the

collection of land border inspection pilot program fees, will be

retained in the immigration user fee section only for the purposes of

clarity and uniformity.

By identifying eligible, low-risk border crossers and providing a

means for rapid entry of those individuals into the United States,

PORTPASS will lessen the time required for all persons to cross the

border at large POEs. PORTPASS will also benefit those persons who

typically use the smaller, more geographically remote POEs which have

limited hours of operation by designating certain POEs as Automated

Permit Ports (APPs). Eligible persons who apply for, and are approved

for use of, an APP may enter the United States when the APP is not

staffed.

Participation in PORTPASS, including advance screening, inspection

and identification, and subsequent lawful entry through a DCL or APP by

an enrolled participant, will satisfy the reporting requirement of 8

CFR 235.1(a), which states that ``[a]pplication to enter the United

States shall be made in person to an immigration officer at a U.S. port

of entry enumerated in 8 CFR part 100 at a time when the immigration

office at the port is open for inspection.''

PORTPASS participants will not be permitted to import merchandise

or transport controlled or restricted items through the PORTPASS

program. Violation of the rules governing the PORTPASS program, or

violating any immigration, customs, agricultural or other law or

regulation, may result in revocation of the permit access authorization

and other sanctions, including, but not limited to, criminal and/or

administrative prosecution and deportation, seizure of goods and/or

vehicles.

The Form I-823, entitled, ``Application--Dedicated Commuter Lane

Program,'' has been revised and retitled to, ``Application--Inspections

Facilitation Program.'' Each applicant applying for use of a Dedicated

Commuter Lane as part of the PORTPASS program on the northern or

California-Mexico border will be required to file the new form and

submit the required application fee, currently $25. Under certain

circumstances, the $25 application fee may be waived by the district

director having jurisdiction over the POE where the applicant requests

access. This rule will also amend Secs. 299.1 and 299.5 to reflect the

change in the title of the application. In establishing the Land Border

Inspection Pilot Program, Congress identified the need to

counterbalance the inspection of passengers and vehicles with the need

to halt the flow of illegal drugs and illegal aliens into the United

States. Therefore, in addition to filing the I-823, applicants may be

required to submit fingerprints in order to determine eligibility as a

low-risk border crosser. If a fingerprint check is required, the

applicant will be assessed the additional processing fee.

This rule expands the pool of eligible persons who may be permitted

to use the PORTPASS system. One of the stated purposes of the land

border inspections pilot program is the alleviation of traffic

congestion at land border POEs. Therefore, it is necessary to allow the

greatest number of identified, low-risk border crossers to participate.

Currently, only citizens and legal permanent residents of the United

States and citizens of Canada and landed immigrants of Canada who are

citizens of the commonwealth nations are eligible applicants for the

DCL project on the northern border. This rule would also make other

non-immigrants as determined by the Commissioner of the Service,

eligible for participation in all PORTPASS projects. Many third-country

citizens and nationals are admitted to the United States for extended

periods of time and may live in the United States but commute across

the border to work, attend school, or conduct business. Third-country

nationals who are citizens of countries other than the commonwealth

nations are admitted to Canada as permanent residents and may also

require access to the United States for similar purposes. Through the

application process set forth in the regulation, admissibility and

suitability of an applicant for entry to the United States will readily

be determined. The application process will be more thorough than that

required by any person who applies for admission at a land border POE,

and will include a check of computer databases. Additionally, each

applicant will be personally inspected and positively identified by an

immigration officer to further determine admissibility prior to

approval of his or her application. The applicant will also be required

to permit random checks and inspections to be conducted by the Service

at any time or location, to ensure compliance.

Currently, only the principal applicant must pay the required fee

upon approval for the DCL application, although other persons may be

listed on the principal's application. This rule will amend the

regulation by requiring a separate application and application fee from

all applicants to a PORTPASS project, including DCL programs

[[Page 50388]]

currently operable. A family cap of $50, family defined to include

husband, wife and/or children under the age of 18 years of age, will be

imposed so as to not unduly burden families who often travel together

across the border. Applicants under the age of 14 will be required to

complete and submit the application, but will not be required to pay

the application fee. Additionally, a ``system costs fee'' will be

assessed to approved applicants who wish to participate in the system

to cover the costs of additional technology. Information about the fee,

including the amount, will be included in publications made available

to the public prior to and/or during the application process. Law

enforcement and security concerns peculiar to the southern border of

the United States, in addition to the additional documentation required

of Mexican nationals by the Immigration and Nationality Act, augments

the degree that specialized devices, decals, technologies, and other

methods are necessary to inspect applicants for entry. The use of

technology , decals, and other devices or methods used to identify and

inspect persons through DCL's on the southern border increases the cost

to the INS of a DCL on that border. By charging a system costs fee for

each vehicle using the DCL, the cost of operating the DCL will be

fairly distributed among users of the DCL. All revenue generated by the

PORTPASS program will directly support inspections on the land border,

and facilitate traffic flow through designated POEs. Fees collected

will cover the costs of:

(1) Hiring additional immigration inspectors, including all

associated personnel costs;

(2) Expanding, operating and maintaining information systems for

nonimmigrant control;

(3) Construction costs, including those associated with the

addition of new primary traffic lanes (with the concurrence of the

General Services Administration);

(4) Procuring detection devices and conducting training in the

identification of fraudulent documents used by applicants for illegal

entry into the United States;

(5) Other costs associated with the operation of the PORTPASS

program; and

(6) Costs associated with the administration of the Land Border

Inspection Fee Account.

The Service's implementation of this rule a an interim rule, with

provision for post-promulgation public comment, is based on the ``good

cause'' exception found at 5 U.S.C. 553(d)(3). The reason and necessity

for immediate implementation of this interim rule are as follows:

Expanding the pilot program will directly benefit the traveling public

by expediting their entry into the United States. In order to evaluate

the effectiveness and utility of the PORTPASS project, and make a

determination whether to continue and/or expand such projects, data

must be collected. Pilot projects are due to expire September 30, 1996.

Therefore, it is in the best interest of the traveling public to expand

the land border user fee pilot program as soon as possible. All pilot

projects are focused on the traveling public as customers and are

designed to directly benefit large populations. Proceeding with an

interim regulation at this time will allow the affected agencies and

the public to gain maximum benefits from the pilot program.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by approving it, certifies that the rule

will not have a significant economic impact on a substantial number of

small entities because of the following factors. The rule applies to

individuals, not small entities, and provides a clear benefit to

participants by allowing expeditious passage through a POE. Although

there is a fee charged for this service, participation is voluntary.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under Executive Order 12866, section 3(f),

Regulatory Planning and Review, and the Office of Management and Budget

has waived its review process under section 6(a)(3)(A).

Executive Order 12612

The regulations proposed herein will not have substantial direct

effects on the States, on the relationship between the National

Government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this rule

does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service

certifies that she has addressed this rule in light of the criteria in

Executive Order 12606 and has determined that it will have no effect on

family well-being.

The information collection requirement contained in this rule has

been cleared by the Office of Management and Budget under the

provisions of the Paperwork Reduction Act. The clearance number for

this collection is contained in 8 CFR 299.5, Display of control

numbers.

List of Subjects

8 CFR Part 103

Administrative practice and procedures, Aliens, Authority

delegations (Government agencies), Freedom of Information, Privacy Act,

Reporting and recordkeeping requirements.

8 CFR Part 235

Administrative practice and procedure, Aliens, Immigration,

Passport and visas.

8 CFR Part 286

Fees, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 299

Administrative practice and procedure, Aliens, Forms, Immigration,

Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF

SERVICE RECORDS

1. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,

15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

2. In Sec. 103.7, paragraph (b)(1) is amended by revising the entry

for ``Form I-823'', to read as follows:

Sec. 103.7 Fees.

* * * * *

(b) * * *

(1) * * *

Form I-823. For application to an Inspections Facilitation Program

under section 286 of the Act--$25.00, with the maximum amount of $50.00

payable by a family (husband, wife, and minor children under 18 years

of age). This fee may be waived for applicants seeking

[[Page 50389]]

access through an Automated Permit Port (APP) on the northern border.

If fingerprints are required, a separate fingerprint processing fee

will be charged.

* * * * *

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

3. The authority citation for part 235 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225,

1226, 1227, 1228, and 1252.

Sec. 235.1 [Amended]

4. In Sec. 235.1, paragraph (a) is amended by:

(a) Adding the word ``either'' between the words ``made'' and ``in

person'', and by

(b) Removing the period after the word ``inspection'' and adding

the phrase ``or as provided in Sec. 235.13.''

5. A new Sec. 235.13 is added to read as follows:

Sec. 235.13 Automated inspection services.

(a) PORTPASS Program. (1) Definitions. (i) Port Passenger

Accelerated Service System (PORTPASS). A system in which certain ports-

of-entry (POEs) are identified and designated by the Service as

providing access to the United States for a group of identified, low-

risk, border crossers. Participants in the PORTPASS program are

inspected, identified, and screened in advance of approval for

participation in the program by an immigration officer, and may apply

to enter the United States through a dedicated commuter lane (DCL) or

through an automated permit port (APP). Such advance inspection and

identification, when the enrolled participant also satisfies the

conditions and requirements set forth in Sec. 235.13(b), satisfies the

reporting requirements of Sec. 235.1(a). Each use of the PORTPASS

system constitutes a separate application for entry by the program

participant.

(ii) Automated Permit Port (APP). A POE designated by the Service

to provide access to the United States by an identified, low-risk,

border crosser through the use of automation when the POE is not

staffed. An APP has limited hours of operation and is located at a

remote location on a land border. This program is limited to the

northern border of the United States.

(iii) Dedicated Commuter Lane (DCL). A special lane set apart from

the normal flow of traffic at a busier land border POE which allows an

accelerated inspection for identified, low-risk travelers. This program

is limited to the northern border of the United States and the

California-Mexico border.

(iv) System costs fee. A fee charged to participants to cover the

cost of implementing the PORTPASS system.

(2) Designation of POEs for PORTPASS access. The following criteria

shall be used by the Service in the selection of a POE if classifying

that POE as having PORTPASS access under the pilot program:

(i) The location has an identifiable group of low-risk border

crossers;

(ii) The institution of PORTPASS access will not significantly

inhibit normal traffic flow;

(iii) The POE selected for access via a DCL has a sufficient number

of Service personnel to perform primary and secondary inspection

functions.

(3) General eligibility requirements for PORTPASS program

applicants. Applicants must be citizens or lawful permanent residents

of the United States, or other non-immigrants as determined eligible by

the Commissioner of the Service. Non-United States citizens must meet

all applicable documentary and entry eligibility requirements of the

Act. Applicants must agree to furnish all information requested on the

application, and must agree to terms set forth for use of the PORTPASS

program. Notwithstanding the provisions of 8 CFR part 264, applicants

may be required to submit fingerprints on Form FD-258 or in the manner

prescribed by the Service for the purpose of determining eligibility

for participation in the PORTPASS program.

(4) Application. (i) Application for PORTPASS access shall be made

on Form I-823, Application--Inspections Facilitation Program.

Applications may be submitted during regular working hours at the port-

of-entry having jurisdiction over the port-of-entry for which the

applicant requests access. Applications may also be submitted by mail.

Each applicant must present himself or herself for inspection and

positive identification prior to approval of the application. Each

person seeking PORTPASS access must file a separate application.''

(ii) Applications must be supported by evidence of citizenship,

and, in the case of lawful permanent residents of the United States,

evidence of legal permanent resident status in the United States.

Evidence of residency must be submitted by all applicants. Alien

applicants requiring a valid visa must be in possession of such

documentation and any other documentation as required by the Act at the

time of the application, at the time of each entry, and at all times

while present in the United States.

(iii) A completed application must be accompanied by the fee as

prescribed in Sec. 103.7(b)(1) of this chapter. Each PORTPASS applicant

14 years of age or older must complete the application and pay the

application fee. Applicants under the age of 14 will be required to

complete the application, but will not be required to pay the

application fee. The district director having jurisdiction over the POE

where the applicant requests access may, in his or her discretion,

waive the application fee.

(iv) Each vehicle registered by a PORTPASS participant must be

inspected and approved by the Service prior to use in the PORTPASS

system.

(v) An application may be denied in the discretion of the district

director having jurisdiction over the POE where the applicant requests

access. Notice of such denial shall be given to the applicant. There is

no appeal from the denial, but denial is without prejudice to

reapplying for this or any other Service benefit.

(vi) Applications approved by the Service will entitle the

applicant to seek entry via a designated PORTPASS Program POE for a

period of 1 year from the date of approval of the application unless

approval is otherwise withdrawn.

(5) In addition to the conditions set forth in Sec. 235.13(b),

participants must agree to the following:

(i) The installation and/or use of any and all decals, devices,

technology or other methodology deemed necessary by the Service to

ensure inspection of the person(s) seeking entry through a DCL, in

addition to any monetary deposit assessed by the Service pending return

of any and all such decals, devices, technology, and other methodology

in undamaged condition;

(ii) The payment of a system costs fee as determined by the Service

as necessary to cover the costs of any and all decals, devices,

technology, or other methodology used to identify and inspect persons

seeking access through the DCL.

(6) The district director having jurisdiction over the POE where

the participant has access may, in his or her discretion, waive the

deposit and ``system costs fee.''

(b) Conditions for participation in the PORTPASS Program. Upon

being inspected and positively identified by an immigration officer and

found admissible and eligible for participation in the PORTPASS

program, a participant in the PORTPASS program must agree to abide by

the following conditions:

[[Page 50390]]

(1) APP-approved participants who wish to enter the United States

through a POE other than one designated as an APP through which they

may pass must present themselves for inspection or examination by an

immigration officer during normal business hours. Entry to the United

States during hours when an APP port is not staffed may be made only

through a POE designated as an APP.

(2) Each occupant of a vehicle entering through a POE providing

PORTPASS access must have applied for participation in the PORTPASS

Program and must have been approved for that purpose.

(3) Participants must be in possession of any authorization

documents issued for PORTPASS access and any other entry documents as

required by the Act or by regulation at time of each entry to the

United States.

(4) Participants must positively identify themselves in the manner

prescribed by the Service at the time of each application for entry via

the PORTPASS system. Each use of the PORTPASS system constitutes a

separate application for entry to the United States.

(5) Participants must agree to an initial inspection of any vehicle

prior to use of the PORTPASS access lane.

(6) Participants may not import merchandise or transport controlled

or restricted items while entering the United States under the PORTPASS

Program. The entry of any merchandise or goods must be in accordance

with the laws and regulations of all other federal inspection agencies.

(7) Participants must agree to random checks or inspections that

may be conducted by the Service at any time and at any location, to

ensure compliance.

(8) Participants agree to abide by all federal, state and local

laws regarding the importation of alcohol or agricultural products or

the importation or possession of controlled substances as defined in

section 101 of the Controlled Substance Act (21 U.S.C. 802).

(9) Participant acknowledges that all devices, decals, or other

equipment, method, or technology used to identify or inspect persons or

vehicles seeking entry via any PORTPASS program remains the property of

the United States Government at all times, and must be surrendered upon

request by the Service. Participant agrees to abide by the terms set

forth by the Service for use of any device, decal, or other equipment,

method or technology, including but not limited to the payment of any

deposit for use of same.

(10) Participant agrees to abide by all conditions required for use

of the special access lane.

(11) Participant agrees to notify the Service if a vehicle approved

for use in a PORTPASS program is sold, stolen, damaged, or disposed of

otherwise. If a vehicle is sold, it is the responsibility of the

participant to remove or obliterate any identifying device or other

authorization for participation in the program before or at the time of

sale unless otherwise notified by the Service. If any license plates

are replaced on an enrolled vehicle, the participant must submit a

properly executed Form I-823, Application--Inspections Facilitation

Program, without fee, prior to use of the vehicle in the PORTPASS

program.

(c) Violation of condition of the PORTPASS Program. A PORTPASS

Program participant who violates any condition of the PORTPASS Program,

or who has violated any immigration law or regulation, or a law or

regulation of the United States Customs Service or other Federal

Inspection Service, or who is otherwise determined by an immigration

officer to be inadmissible to the United States, may have the PORTPASS

access revoked at the discretion of the district director or the chief

patrol agent and may be subject to other applicable sanctions, such as

criminal and/or administrative prosecution or deportation, as well as

possible seizure of goods and/or vehicles.

PART 286--IMMIGRATION USER FEE

5. The authority citation for part 286 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.

6. Section 286.8 is revised to read as follows:

Sec. 286.8 Establishment of pilot programs for the charging of a land

border fee for inspection services.

Under the provisions of section 286(q) of the Act, the Service may

establish pilot programs at one or more land border ports-of-entry to

charge fees for immigration inspection services to be collected by the

Commissioner. Individual ports-of-entry selected by the Commissioner to

participate in such pilot programs may charge a fee to enhance

inspection services and to recover the cost of:

(a) Hiring additional immigration inspectors, including all

associated personnel costs such as salary, benefits, and overtime;

(b) Expansion, operation, and maintenance of information systems

for nonimmigrant control;

(c) Construction costs, including those associated with adding new

primary traffic lanes (with the concurrence of the General Services

Administration);

(d) Procuring detection devices and conducting training to identify

fraudulent documents used by applicants for entry to the United States;

and

(e) Other administrative costs associated with the PORTPASS

Program.

PART 299--IMMIGRATION FORMS

7. The authority citation for part 299 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

8. Section 299.1 is amended by revising the entry for the ``Form I-

823'' to read as follows:

Sec. 299.1 Prescribed forms.

* * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Form No. Edition date Title

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

I-823.................................................... 08-24-95 Application--Inspections Facilitation Program.

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

9. Section 299.5 is amended by revising the entry for the ``Form I-

823'' to read as follows:

Sec. 299.5 Display of control numbers.

* * * * *

[[Page 50391]]

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Currently assigned

INS form No. INS form title OMB control No.

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

I-823.................................................. Application--Inspections Facilitation Program............................ 1115-0174

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

Dated: September 26, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

Note: This appendix will not appear in the Code of Federal

Regulations.

Appendix to the preamble--Form I-823, Application--Inspections

Facilitation Program.

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[FR Doc. 95-24350 Filed 9-28-95; 8:45 am]

BILLING CODE 4410-10-C

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