Establishment of a Dedicated Commuter Lane (DCL) System Costs Fee for Participation in the Port Passenger Accelerated Service System (PORTPASS) Program

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 1794-96]

RIN 1115-AD82

Establishment of a Dedicated Commuter Lane (DCL) System Costs Fee

for Participation in the 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: The Immigration and Naturalization Service (Service) published

an interim rule with request for comments on September 29, 1995. In

that rule the Service indicated that payment of a system costs fee as

determined necessary by the Service to cover the costs of technology

would be required of all participants. This rule sets forth the amount

of that fee.

DATES: This interim rule is effective October 11, 1996. Written

comments must be received on or before December 10, 1996.

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

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC

20536. To ensure

[[Page 53304]]

proper handling, please reference INS No. 1794-96 on your

correspondence. Comments are available for public inspection at this

location by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Robert A. Mocny, Assistant Chief Inspector, Inspectors Division,

Immigration and Naturalization Service, 425 I Street, NW., Room 4064,

Washington, DC 20536, telephone (202) 514-3019.

SUPPLEMENTARY INFORMATION: Payment of a ``DCL system costs fee'' by

PORTPASS program participants at selected Ports of Entry will be

necessary to cover the costs of additional technology and associated

construction, equipment, and personnel costs made necessary in those

locations by law enforcement and security concerns. The provisions of

OMB Circular A-25, dated July 8, 1993, entitled ``User Charges,'' sets

forth the guidelines used by the Service in the assessment of PORTPASS

user charges under the Independent Offices Appropriations Act of 1952

(IOAA). After payment of the system costs fee, if the approved

participant wants to enroll any additional vehicles for his or her own

use in the program, he or she will be charged an ``additional vehicle

fee'' to cover the costs of purchasing and installing the necessary

equipment in each additional vehicle. If the participant loses his or

her PORTPASS document, the participant will have to pay a processing

fee. Information about the fees, including the amounts, will be

included in publications made available to the public prior to and

during the application process. Prior to accepting an application from

a person seeking to participate in PORTPASS, the Service will inform

the prospective applicant of the amount and nature of all fees

associated with the PORTPASS program at that POE.

The PORTPASS program is strictly voluntary. 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 be used as needed to cover the following costs:

(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 as 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: The

PORTPASS program is currently and directly benefiting the traveling

public by expediting the entry of PORTPASS participants and other

members of the traveling public into the United States. The costs to

the public have been calculated and evaluated. Pursuant to the

provisions of the IOAA and OMB Circular No. A-25, the PORTPASS program

must be self-sustaining, and the costs of the system carried by the

identifiable recipients of the benefits of the PORTPASS program.

Furthermore, a pilot DCL is currently operational on the California-

Mexico border. To close the DCL because of the inability to collect

costs necessary to sustain the system will unnecessarily harm those who

use the DCL and who are already on notice that a fee will be charged

once established. Those who wish to forgo payment of the fee will be

allowed to withdraw from the program without prejudice. Immediate

collection of the fee would enable the DCL to continue its current

operation, benefiting the United States, the Service, and members of

the traveling public at one of the busiest land border Ports-of-Entry

in the United States. It remains in the best interest of all members of

the traveling public to collect fees from the users as soon as

possible.

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 and

the benefits of participating in the program far exceed the cost to the

traveling public.

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.

List of Subjects in 8 CFR Part 103

Administrative practice and procedures, Aliens, Authority

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

Reporting and record keeping requirements.

Accordingly, part 103 of 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, 552(a); 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'', and by adding a new entry for the ``DCL System

Costs Fee,'' immediately before the entry for Form EOIR-40 to read as

follows:

Sec. 103.7 Fees.

* * * * *

(b) * * *

(1) * * *

* * * * *

DCL System Costs Fee. For use of a Dedicated Commuter Lane (DCL)

located at specific Ports of Entry of the United States by an

approved participant in a designated

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vehicle--$80.00, with the maximum amount of $160.00 payable by a

family (husband, wife, and minor children under 18 years-of-age).

Payable following approval of the application but before use of the

DCL by each participant. This fee is non-refundable, but may be

waived by the district director. If a participant wishes to enroll

more than one vehicle for use in the PORTPASS system, he or she will

be assessed with an additional fee of--$42 for each additional

vehicle enrolled.

* * * * *

Form I-823. For application to a PORTPASS 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).

The application fee may be waived by the district director. If

fingerprints are required, the inspector will inform the applicant

of the current Federal Bureau of Investigation fee for conducting

fingerprint checks prior to accepting the application fee. Both the

application fee (if not waived) and the fingerprint fee must be paid

to the Immigration and Naturalization Service before the application

will be processed. The fingerprint fee may not be waived. For

replacement of PORTPASS documentation during the participation

period--$25.00.

* * * * *

Dated: September 27, 1996.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 96-26286 Filed 10-9-96; 11:44 am]

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