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

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: Final rule.

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SUMMARY: The Immigration and Naturalization Service (Service) published

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

allowed 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. The rule also

allowed 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. This final rule clarifies and

better defines the interim rule, and addresses questions and practical

issues which arose during the operation of the pilot dedicated commuter

lane (DCL) on the California-Mexico border at the Otay Mesa Port of

Entry (POE).

EFFECTIVE DATE: October 16, 1996.

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

Inspector, Inspections Division, Immigration and Naturalization

Service, 425 I Street, NW., Room 4064, Washington, DC 20536, telephone

(202) 514-3019.

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 as an interim

rule by the Service on May 13, 1991, at 56 FR 21917-21920. That interim

rule placed all eligibility requirements, application processes, and

compliance requirements pertaining to inspection user fees in

Sec. 286.6.

On September 29, 1995, the Commissioner, Immigration and

Naturalization Service, published in the Federal Register at 60 FR

50386-50399, an interim rule with request for comments by November 28,

1995. The interim rule added a variety of border inspection pilot

projects to selected POEs on the northern and California-Mexico land

borders, and moved application and eligibility requirements for those

persons seeking to participate in any of the pilot projects from 8 CFR

286.8 to 8 CFR 235.13. Expanding and testing pilot projects on land

borders facilitates the entry of low-risk, legitimate border crossers,

while still safeguarding the integrity of the United States land

borders.

No comments were received on the interim rule. However, the

following summarizes and explains the changes made in this final rule

which clarify and address practical issues which arose during

implementation and operation of the pilot program.

PORTPASS Program Definitions--Sec. 235.13(a)(1)

The effect of use of the PORTPASS Program by an alien participant

was distinguished from use of the program by the U.S. citizen

participant. Each time the alien uses the PORTPASS program he or she is

making an ``entry'' as defined by section 101(a)(13) of the Immigration

and Nationality Act (Act), as amended, a term which is not applicable

to U.S. citizens.

In the definition under ``DCL System Costs Fee,'' a vehicle fee was

added to cover the costs in certain situations of a participant

registering more than one vehicle, and expiration dates were clarified.

Eligibility Requirements--Sec. 235.13(a)(3)

Additional notice is provided that criminal history databases will

be accessed in order to determine an applicant's program eligibility.

Application--Sec. 235.13(a) (4) and (5)

This paragraph was rewritten to allow for better organization and

understanding of the application

[[Page 53831]]

procedure and its documentary requirements, including the requirement

to provide proof of vehicle insurance and registration. The name of the

application, Form I-823, is changed from ``Application--Inspections

Facilitation Program,'' to, ``Application--Alternative Inspection

Services,'' in order to identify better the use of the application to

the public. In addition, paragraph (a)(4)(x) provides for reapplication

for use of the lane following a denial only after a 90 day waiting

period. Because the number of applications accepted for the program may

be limited, this rule will allow more persons to apply for the program.

Clarification is also provided in paragraph (a)(5)(viii) that each

occupant of a vehicle in the lane is responsible for the contents of

the vehicle when passing through the lane.

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.

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 record keeping requirements.

8 CFR Part 235

Administrative practice and procedure, Aliens, Immigration,

Passport and visas.

8 CFR Part 286

Fees, Immigration, Reporting and record keeping requirements.

8 CFR Part 299

Administrative practice and procedure, Aliens, Forms, Immigration,

Reporting and record keeping requirements.

Accordingly, the interim rule amending 8 CFR Parts 103, 235, 286,

and 299 which was published at 60 FR 50386-50399 on September 29, 1995,

is adopted as a final rule with the following changes:

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

1. 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, 1252.

2. Section 235.13 is revised 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. Alien participants in the PORTPASS program are

personally 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 satisfies

the conditions and requirements set fourth in this section, satisfies

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

PORTPASS constitutes a separate and completed inspection and

application for entry by the alien program participants on the date

PORTPASS is used. United States citizens who meet the eligibility

requirements for participation are subject to all rules, procedures,

and conditions for use set forth in this section.

(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 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) DCL system costs fee. A fee charged to a participant to cover

the cost of the implementation and operation of the PORTPASS system. If

a participant wishes to enroll more than one vehicle for use in the

PORTPASS system, he or she will be assessed an additional vehicle fee

for each additional vehicle enrolled. Regardless of when the additional

vehicle is enrolled, the expiration date for use of that vehicle in the

DCL will be the same date that the respective participant's authorized

use of the lane expires, or is otherwise revoked.

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

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

the POE as having PORTPASS access:

(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 to PORTPASS must be citizens or lawful permanent

residents of the United States, or nonimmigrants determined to be

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. Use of the PORTPASS program

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constitutes application for entry into the United States. Criminal

justice information databases will be checked to assist in determining

the applicant's eligibility for the PORTPASS program at the time the

Form I-823, Application--Alternative Inspection Services, is submitted.

Criminal justice information on PORTPASS participants will be updated

regularly, and the results will be checked electronically at the time

of each approved participant's use of PORTPASS. Notwithstanding the

provisions of 8 CFR part 264, fingerprints on Form FD-258 or in the

manner prescribed by the Service may be required.

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

on Form I-823, Application--Alternative Inspection Services.

Applications may be submitted during regular working hours at the

principal Port-of-Entry having jurisdiction over the Port-of-Entry for

which the applicant requests access. Applications may also be submitted

by mail.

(ii) Each person seeking PORTPASS access must file a separate

application.

(iii) The number of persons and vehicles which can use a DCL is

limited numerically by the technology of the system. For this reason,

distribution of applications at each POE may be limited.

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

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

evidence of lawful permanent resident status in the United States.

Alien applicants required to possess a valid visa must present

documentation establishing such possession and any other documentation

as required by the Act at the time of the application, and must be in

possession of such documentation at the time of each entry, and at all

times while present in the United States. Evidence of residency must be

submitted by all applicants. Evidence of employment may be required to

be furnished by the applicant. A current valid driver's license, and

evidence of vehicle registration and insurance for the vehicle which

will be occupied by the applicant as a driver or passenger when he or

she uses the DCL or APP must be presented to the Service prior to

approval of the application.

(v) A completed Form I-823 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. An application for a replacement PORTPASS card must be

made on the Form I-823, and filed with the fee prescribed in

Sec. 103.7(b)(1). The district director having jurisdiction over the

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

waive the application or replacement fee.

(vi) If fingerprints are required to assist in a determination of

eligibility at that POE, the applicant will be so advised by the

Service prior to submitting his or her application. The applicant shall

also be informed at that time of the current Federal Bureau of

Investigation fee for conducting a fingerprint check. This fee must be

paid by the applicant to the Service before any processing of the

application shall occur. The fingerprint fee may be not be waived.

(vii) Each applicant must present himself or herself for an

inspection and/or positive identification at a time designated by the

Service prior to approval of the application.

(viii) Each vehicle that a PORTPASS participant desires to register

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

in the PORTPASS system. Evidence of valid, current registration and

vehicle insurance must be presented to the Service at the time the

vehicle is inspected. If the vehicle is not owned by the participant,

the participant may be required to present written permission from the

registered owner authorizing use of the vehicle in the PORTPASS program

throughout the PORTPASS registration period.

(ix) An applicant, whether an occupant or driver, may apply to use

more than one vehicle in the DCL. The first vehicle listed on the Form

I-823 will be designated as the applicant's primary vehicle. The second

vehicle, if not designated by another applicant as his or her primary

vehicle, is subject to the additional vehicle charge as prescribed by

the Service.

(x) 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. Re-applications, or

applications following revocation of permission to use the lane, will

not be considered by the Service until 90 days have passed following

the date of denial or revocation. Criteria which will be considered in

the decision to approve or deny the application include the following:

admissibility to the United States and documentation so evidencing,

criminal history and/or evidence of criminality, purpose of travel,

employment, residency, prior immigration history, possession of current

driver's license, vehicle insurance and registration, and vehicle

inspection.

(xi) 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. An application for a replacement card

will not extend the initial period of approval.

(5) By applying for and participating in the PORTPASS program, each

approved participant acknowledges and agrees to all of the following:

(i) The installation and/or use of, in the vehicle approved for use

in the PORTPASS program, 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 fee

and/or monetary deposit assessed by the Service pending return of any

and all such decals, devices, technology, and other methodology in

undamaged condition.

(ii) That all devices, decals, or other equipment, methodology, 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. Each participant agrees to abide by the terms set forth by

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

technology.

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

Service to be necessary to cover the costs of implementing,

maintaining, and operating the PORTPASS program.

(iv) That each occupant of a vehicle applying for entry through

PORTPASS must have current approval from the Service to apply for entry

through the PORTPASS program in that vehicle.

(v) That a participant must be in possession of any authorization

document(s) issued for PORTPASS access and any other entry document(s)

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

the United States.

(vi) That a participant must positively identify himself or herself

in the manner prescribed by the Service at the time of each application

for entry via the PORTPASS.

(vii) That each use of PORTPASS constitutes a separate application

for

[[Page 53833]]

entry to the United States by the alien participant.

(viii) That each participant agrees to be responsible for all

contents of the vehicle that he or she occupies when using PORTPASS.

(ix) That a participant may not import merchandise or transport

controlled or restricted items using PORTPASS. The entry of any

merchandise or goods must be in accordance with the laws and

regulations of all other Federal inspection agencies.

(x) That a participant must 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. Sec. 802).

(xi) That a participant will be subject to random checks or

inspections that may be conducted by the Service at any time and at any

location, to ensure compliance.

(xii) That current vehicle registration and, if applicable, current

permission to use the vehicle in PORTPASS, and evidence of current

vehicle insurance, shall be in the vehicle at all times during use of

PORTPASS.

(xiii) 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 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, without fee, prior to use of the vehicle

in the PORTPASS program.

(xiv) That 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 a Port of Entry is not staffed may be

made only through a POE designated as an APP.

(b) 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 or ineligible to

participate in PORTPASS, 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.

(c) Judicial review. Nothing in this section is intended to create

any right or benefit, substantive or procedural, enforceable in law or

equity by a party against the Department of Justice, the Immigration

and Naturalization Service, their officers or any employees of the

Department of Justice.

PART 286--IMMIGRATION USER FEE

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

follows:

Authority: 8 U.S.C. 1103, 1156; 8 CFR part 2.

4. In Sec. 286.8, a new paragraph (f) is added to read as follows:

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

border fee for inspection services.

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

Inspection Fee account.

PART 299--IMMIGRATION FORMS

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

follows:

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

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

823'' to read as follows:

Sec. 299.1 Prescribed forms.

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Edition

Form No. date Title

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I-823......................... 9-10-96 Application--Alternative Inspection Services.

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7. 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.

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Currently

assigned

INS form No. OMB INS form title control OMB

No.

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I-823............................ Application--Alternative 1115-0174

Inspection Services.

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Dated: September 27, 1996.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 96-26580 Filed 10-11-96; 11:48 am]

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