Establishment of Pilot Programs To Charge a Commuter User Fee at Selected Ports of Entry

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 286, and 299

[INS No. 1312-93]

RIN 1115-AB78

Establishment of Pilot Programs To Charge a Commuter User Fee at

Selected Ports of Entry

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the Immigration and Naturalization Service

(Service) regulations to implement pilot programs to charge fees for

inspection service provided to selected land border Ports-of-Entry

(POEs). Limited resources and increasing commuter traffic over the land

borders has resulted in costly delays to transborder travelers. Pilot

projects, such as the Dedicated Commuter Lanes (DCLs), in which

eligible groups may expeditiously enter the United States through

designated lanes, will enabled the Service to increase staffing,

enhance inspection services, and reduce delays in crossing the border.

EFFECTIVE DATE: March 29, 1995.

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: Commuter traffic over our land borders has

increased significantly each year over the past decade, and in fiscal

year 1992 accounted for approximately 90 percent of all inspections

completed. At certain locations, traffic backups sometimes last several

hours. Such delays are both irritating and costly to the traveling

public. Through automation and an increase in the inspection force, the

Service could significantly reduce these delays. However, the

appropriated funds have not kept up with the rapid growth in land

border traffic. Although revenue from the Immigration User Fee Account,

authorized by Congress in 1986 and covering commercial air and sea

arrivals of POEs, has enabled the Service to more than triple the

number of available air and seaport inspectors, these funds may not, by

statute, be used to staff land border POEs.

Provisions of Public Laws 101-515 and 103-121

In the Departments of Commerce, Justice, and State, the Judiciary,

and Related Agencies Appropriations Act, 1991, Pub. L. 101-515, dated

November 5, 1990, Congress included language which allows for pilot

programs on the inspection fee concept on the land borders. This law,

added as section 286(q) of the Immigration and Naturalization Act

(Act), and amended by section 309(a)(2) of the Miscellaneous and

Technical Immigration and Naturalization Amendments of 1991, Pub. L.

102-232, dated December 12, 1991, authorizes the Attorney General to

establish pilot projects which include the charging of a fee and

provides that the fee collected may be used only to enhance inspection

services. Pursuant to this law, such pilot projects are to be developed

by the Attorney General after consultation with the Secretary of the

Treasury and with Congress. All such pilot projects were scheduled to

terminate on September 30, 1993, but were extended by Congress until

September 30, 1996, by the Departments of Commerce, Justice, and State,

the Judiciary, and Related Agencies Appropriations Act, 1994 Pub. L.

103-121, dated October 27, 1993. This law also limited these projects

only to the northern border of the United States. However, in the

Departments of Commerce, Justice, and State, the Judiciary, and Related

Agencies Appropriations Act, 1995, Pub. L. 103-317, dated August 28,

1994, Congress authorized the expansion of the commuter lane pilot

project to land border crossings in California.

Discussion of Comments

The Service Published an interim Regulation on May 13, 1991, at 56

FR 21917-21920, amending 8 CFR Parts 103, 286, and 299. In this rule,

the Service sought to use DCLs to enhance services to those border

crossers who most frequently enter the United States over the land

borders. The interim rule also contained a provision for the

establishment of a per vehicle user fee at selected POEs. The interim

rule included a request for comments by August 12, 1991. The Service

received three responses, each discussing several issues.

Use of Funds

One commenter expressed concern that the revenues generated from

the projects will be channeled to the General Fund and not used for the

specific purpose of aiding border congestion and delays. The revenues

generated by the DCL implementation are controlled by section 286(q) of

the Act, which states that such funds will be used to provide land

border inspection services. A separate land [[Page 16040]] Border

Inspection Fee Account has been created, and the funds collected must

be used in direct support and enhancement of the land border

inspections operations, as directed by Congress.

Concerns About Dedicated Commuter Lanes

Two commenters expressed concern that many locations on the

southern border have severe traffic congestion and that, as many people

enroll in the program, the special commuter lanes will become as

congested as the regular lanes. If the response to the program were too

great for one lane, a second lane could be opened at some locations,

since much of the traffic would be removed from the regular lanes. Only

by pilot testing this program can the Service determine the efficacy of

this approach to expedite traffic and alleviate border congestion. The

purpose of the DCL Program is to pre-screen those commuters deemed to

be low-risk, so that only a brief examination of the vehicle or

personal identifier need be conducted, thereby shortening the time

needed for each individual inspection, and expediting the flow of

traffic. By removing these commuters from the regular lanes, all

traffic moves more quickly. In the test conducted in Blaine,

Washington, the commuter lane still expedites traffic, in spite of a

large number of enrollees.

The Service is bound by the provisions of Pub. L. 103-121 and

cannot consider DCLs on the southern border, except in California,

until legislation authorizes us to do so. However, the Service will

explore any operational alternatives to further promote facilitation of

entry and expeditious primary processing to decrease congestion at

affected POEs along the southern border.

One commenter stated that anyone is a potential smuggler and that

all who enter the United States along the southern border should face

the risk of being searched. The application procedures for enrollment

in the DCL Program provides a more thorough screening of DCL users than

would normally be conducted were the person crossing through normal

traffic lanes. In addition, the regulations provide for random

compliance checks of participants and their vehicles at any time during

use of the commuter lane.

One commenter expressed concern that there is an element of elitism

in the application process for participation in the DCL Program, in

that persons with higher incomes will receive special treatment, can

better afford the benefit, and will be able to more easily provide

adequate background information.

The DCL Program is a strictly voluntary program. Those who feel

they cannot afford the fee need not participate and can continue to

cross through the regular traffic lanes at no cost. All persons

crossing a bridge must pay a bridge toll or fee, regardless of income.

The average per-crossing cost for the DCL Program, a program designed

for frequent crossers, is significantly lower than that paid to cross

most bridges. Based upon both random sampling and local community

assessments, the current annual cost of $25.00 per application is not

cost prohibitive to the majority of the travelling public.

Economic Impact of User Fees

One Commenter objected to the establishment of per vehicle fees as

imposing an extra burden on transborder industry and border communities

and a barrier to trade. The commenter suggested that with bridge-

crossing fees already levied at many points along the southern border,

the additional fees would render the crossing too expensive and

eventually lead to reduced trade and a decline in the economies of the

border communities.

Traffic congestion at the border also costs local communities

enormous amounts of revenue in lost time and productivity, as well as

severely impacting the environment. The purpose of imposing user fees

of this type is to allow the Service to hire more staff and implement

technology to aid inspection and expedite traffic.

The section allowing for the establishment of a per vehicle fee has

been removed from the final rule. Such a broad-based fee is not

consistent with the intent of the legislation of which this regulation

is based, which is to establish pilot projects at selected locations.

Participation in the DCL Program

The interim rule restricted participation in the DCL Program to

citizens of the United States and contiguous countries. One commenter

recommended expanding the identified groups eligible to participate in

the DCL Program. The suggestion coincided with recommendations made by

local officials and current participants in the DCL Program.

Accordingly, additional user groups have been added to participate in

the DCL Program as follows: third-country aliens who have been lawfully

admitted for permanent residence (LAPRs) in the United States and

lawful permanent residents (Landed immigrants) in Canada who are

citizens of the Commonwealth countries. Expansion of eligibility to

LAPRs of the United States, and landed immigrants of Canada who are

citizens of the Commonwealth countries is in keeping with the

Immigration and Naturalization Act entry requirements for those

travelers who are not required visas to enter into the United States

for business or pleasure. Since the restriction on operating a

Dedicated Commuter Lane was only recently lifted, and the Service

regulates permanent residents of Mexico differently than Canadian

permanent residents, further study on whether or not to include

permanent residents of Mexico in the DCL program is needed. Inclusion

of permanent residents of Mexico may be proposed in future regulation

by the Service.

Additional Changes

The interim rule contained the criteria that the location selected

have an identifiable group of low-risk border crossers who cross a

minimum of once weekly for a regular defined purpose. To allow for

greater use of the DCL Program and more flexibility for its users, the

final rule removes the requirement that the participant enter once

weekly.

The interim rule provided that only the District Director could

revoke an individual's participation in the DCL program. The final rule

extends this authority to the Chief Patrol Agent if the participant

violates any of the conditions of the DCL program and is encountered by

the Border Patrol outside the POE. This addition to the Rule will

enhance control of participation in the DCL program.

Participation in the DCL Program requires the payment of an annual

fee for adjudication of the application and issuance of a vehicle and/

or personal identifier. The initial DCL in Blaine used a windshield

decal to identify a participating vehicle. Diverse types of technology

may be introduced and used for rapid vehicle or driver identification,

ranging from a simple method involving windshield stickers or similar

items, to radio frequency identification tags or various forms of

biometrics. Language in the final rule has been modified to allow for

the use of other forms of identification technology.

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 [[Page 16041]] 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, Sec. 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 assessed this rule in light of the criteria in

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

family well-being.

The information collection requirements contained in this rule have

been approved 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 286

Fees, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 299

Administrative practice and procedure, Aliens, Forms, Immigration,

Reporting and recordkeeping requirements.

Accordingly, the interim rule which was published on May 13, 1991,

at 56 FR 21917-21920 amending 8 CFR parts 103, 286, and 299 is adopted

as a final rule with the following changes:

PART 286--IMMIGRATION USER FEE

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

follows:

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

2. Section 286.8 is amended by:

a. Revising paragraph (b)(1)(i);

b. Removing the word ``and'' at the end of the sentence of

paragraph (b)(1)(ii);

c. Removing the ``.'' at the end of paragraph (b)(1)(iii), and

replacing it with a ``; and'';

d. Adding paragraph (b)(1)(iv);

e. Revising paragraph (b)(2)(i) through (v);

f. Adding paragraph (b)(2)(vi);

g. Revising paragraph (b)(4)(iii);

h. Revising paragraph (b)(6);

i. Revising paragraph (b)(7); and by

j. Removing paragraph (c), to read as follows:

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

border user fee for inspection services.

* * * * *

(b) * * *

(1) * * *

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

border crossers;

* * * * *

(iv) The port of entry is located on the northern or the California

border of the United States.

(2) * * *

(i) The applicant is a citizen of the United States or a citizen of

the country contiguous to the specific port of entry sponsoring the

commuter lane program in which the applicant seeks to participate; or,

the applicant is a national or citizen of a third-country who has been

lawfully admitted for permanent residence (LAPR) in the United States;

or, the applicant is a lawful permanent resident (landed immigrant) of

Canada who is a citizen of the Commonwealth countries;

(ii) The applicant who is not a United States citizen must be

otherwise admissible to the United States and must be in possession of

any documents required under Sec. 212.1 of this chapter for entry to

the United States whenever using the dedicated commuter lane;

(iii) The applicant agrees to furnish all information requested on

the application, Form I-823, Application--Dedicated Commuter Lane

Program;

(iv) The applicant pays the required fee, upon approval of the

application;

(v) The applicant agrees to a physical inspection of the registered

vehicle prior to initial use of the dedicated commuter lane; and

(vi) When entering through a dedicated commuter lane, each

applicant must be in possession of any authorization document or

documents issued for use of the dedicated commuter lane.

* * * * *

(4) * * *

(iii) Applications for participation in the dedicated commuter lane

program must be submitted annually at a port of entry having a

dedicated commuter lane program. The application may be submitted

either in person or by mail; however, each applicant must be personally

inspected prior to approval of the application. Authorization

documents, such as decals or authorization letters, shall be valid for

one year from date of approval.

* * * * *

(6) Violation of conditions of the program. A participant who

violates any condition for the use of the dedicated commuter lane may

be removed from the program at the discretion of the District Director,

and shall be subject to the imposition of applicable fines, penalties,

and/or sanctions as provided by law. The Chief Patrol Agent may, in an

exercise of discretion, remove from the program a participant who

violates any condition of use and who is encountered by the Border

Patrol outside of the port of entry.

(7) Responsibility of participant.

(i) It shall be the responsibility of the participant to notify the

Service if an approved vehicle is sold, stolen, or disposed of

otherwise. If the vehicle is sold or damaged beyond repair, it is the

responsibility of the participant to remove or obliterate any

identifier or other authorization for participation in the program from

the vehicle at the time of such sale or disposal. A participant must

submit a new properly executed Form I-823 with fee in order to receive

a new authorization document or device, valid for one year from date of

approval.

(ii) If a damaged vehicle is being repaired and the identifier must

be affixed to the vehicle, the Service may issue a replacement

identifying document or device. The identifying authorization shall be

valid to the date of the original authorization. The program

participant must submit a properly executed Form I-823, without fee, as

well as a receipt, properly documented with the Vehicle Identification

Number and the vehicle license tag number, for the repair of the

vehicle.

(iii) If a windshield becomes broken and must be replaced, and an

identifying decal authorizing that [[Page 16042]] vehicle to use a

dedicated commuter lane is affixed to the broken windshield, the

Service may issue a replacement decal. The program participant must

submit a properly executed Form I-823, Application--Dedicated Commuter

Lane Program, without fee, as well as a receipt, properly documented

with the Vehicle Identification Number and the vehicle license tag

number, for the purchase of a new windshield.

Dated: January 18, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 95-7629 Filed 3-28-95; 8:45 am]

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