Establishment of Pre-enrolled Access Lane (PAL) Program at Immigration and Naturalization Service Checkpoints

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 287 and 299

[INS No. 1830-97]

RIN 1115-AE80

Establishment of Pre-enrolled Access Lane (PAL) Program at

Immigration and Naturalization Service Checkpoints

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends the Immigration and Naturalization Service

(Service) regulations by establishing a Pre-enrolled Access Lane (PAL)

program for the use of eligible persons and vehicles at Service

checkpoints within the United States. This rule is necessary to permit

the Service to facilitate passage through Service checkpoints while

safeguarding the integrity of law enforcement at the checkpoints.

DATES: This interim rule is effective April 18, 1997. Written comments

must be received on or before June 17, 1997.

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, Attn: Public Comment Clerk. To ensure proper handling, please

reference 1830-97 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:

William Carter, U.S. Border Patrol, Immigration and Naturalization

Service, 415 I Street, NW., Room 4226, Washington, DC 20536, telephone

(202) 514-3072.

SUPPLEMENTARY INFORMATION: In the Fiscal Year 1996 Appropriations Act

for the Department of Justice, Congress required the Service to

establish a computer lane facilitation pilot program at the San

Clemente, California, checkpoint. See section 101 of Public Law 104-134

(April 26, 1996). The Service has determined that the Pre-enrolled

Access Lane (PAL) program implemented by this interim rule is the best

means of complying with this congressional mandate.

Under the PAL program, the Service may establish lanes at

checkpoints for pre-enrolled travelers, the use of which is restricted

to enrolled participants who the Service has determined present a low

risk of using the lane for unlawful purposes (and to passengers of such

enrolled participants). A person who wishes to become an enrolled

participant in the PAL program or to register a vehicle for use in the

lane will be required to apply to the Service by using Form I-866--

Application Checkpoint Pre-enrolled Access Lane. This program is wholly

voluntary, and failure to apply or denial of an application for the PAL

program in no way prevents a person from passing through any checkpoint

in the regular traffic lanes.

Prior to approval of any vehicle for use in the lane, the Service

may inspect such vehicle to ensure that it does not present evidence of

having been used or prepared to be used to smuggle aliens or drugs. An

electronic transmitter or other identifier may be affixed to vehicles

authorized for use in the lane. Prior to enrolling applicants to

participate in the PAL program, the Service will conduct appropriate

checks of immigration, law enforcement, and criminal history

information records and databases for information related to the

applicant and any vehicle he or she wishes to register. This check may

include submitting the applicant's fingerprints to appropriate law

enforcement agencies.

An authorized vehicle may not have access to a Pre-enrolled Access

Lane unless at least one person in the vehicle is an enrolled

participant in the PAL program and has specific authorization to use

that vehicle in the PAL. When using the PAL, an enrolled participant

may carry passengers who are not enrolled in the PAL, so long as all

passengers are United States citizens, lawful permanent residents of

the United States or rightful holders of valid nonimmigrant United

States visas. If an authorized vehicle is sold, stolen, or otherwise

disposed of, authorization to use that vehicle in the lane is

automatically revoked. Within 24 hours of when an authorized vehicle is

stolen, or within 7 days of when such vehicle is sold, or otherwise

disposed of or the license plates are changed, enrolled participants

must give, in person or by fax, written notice of such occurrence to

the PAL enrollment center at which their application was filed. If a

vehicle is sold or otherwise disposed of, it is the responsibility of

the enrolled participant to remove or obliterate any identifying decal

or other authorization for participation in the PAL program before or

at the time of sale or disposal unless otherwise notified by the

Service. If the Service installs an electronic transmitter or similar

device on the vehicle, the enrolled participant must have that device

removed by the Service at the PAL enrollment center.

Failure to comply with the terms and conditions established for use

of the lane may result in revocation of the privilege to participate in

the program. Unless revocation is automatic, the Service will give

written notice of revocation to the enrolled PAL participant or mail it

to his or her last known address. However, written notification is not

necessary prior to revocation of the privilege to participate in the

PAL program. All vehicles approved for use in the lane remain subject

to being stopped and occupants questioned during use of the lane in

order to ensure compliance with immigration and other applicable laws

and the conditions for use of the PAL.

Factors which the Service will consider in determining the

eligibility of an applicant to enroll in the Pre-enrolled Access Lane

program include, but are not limited to, lawful presence in the United

States, criminal history and/or evidence of criminality, employment,

residency, prior immigration history, possession of a valid driver's

license, vehicle type, registration, and inspection.

Good Cause Exception

The Service's implementation of this rule as an interim rule with

provisions for post-promulgation public comment is based upon the

``good cause'' exceptions to the normal notice and comment requirement

found at 5 U.S.C. 553 (b)(3)(B) and (d)(3). Immediate implementation of

this interim rule without prior notice and comment is necessary because

of a statutory requirement. In the Fiscal Year 1996 Appropriations Act,

Congress mandated that the Service establish a commuter lane

facilitation program at the San Clemente checkpoint within 90 days of

the passage of that Act. See section 101 of Public Law 104-134 (April

26, 1996). While the INS did initiate a commuter facilitation pilot

program by the

[[Page 19025]]

statutory deadline, the implementation of a fully operational commuter

lane facilitation program has required the construction of an

additional lane at the checkpoint as well as the development of a new

system for enrolling and monitoring individuals and vehicles who will

use the lane. Both construction and system development have required

considerable time. In communications between members of Congress and

the Attorney General, it was agreed that the newly constructed

dedicated commuter lane (referred to in this rule as the PAL) would be

in operation by June of 1997. In order to have a lane operational by

that date, the Service has determined that it needs to begin enrolling

participants in April of 1997, and the Service cannot begin the

enrollment process until this rule becomes effective. Compliance with

the normal notice and comment period would, therefore, make it

impossible for the Service to properly implement the PAL within the

time agreed upon with Congress and could put the Service in violation

of an express congressional mandate.

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 expenditious passage through a checkpoint.

Participation in the PAL program is voluntary.

Executive Order 12866

This rule is 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. Accordingly, this rule has been submitted to the Office of

Management and Budget for review.

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 12988

This interim rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State local and

tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by Sec. 804 of the Small

Business Regulatory Enforcement Fairness Act of 1996. This rule will

not result in an annual effect on the economy of $100,000,000 or more,

a major increase in costs or prices, or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

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 287

Immigration, Law enforcement officers.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

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

Regulations is amended as follows:

PART 287--FIELD OFFICERS; POWERS AND DUTIES

1. The authority citation for part 287 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8

CFR part 2.

Sec. 287.11 [Redesignated as Sec. 287.12]

2. Section 287.11 is redesignated as Sec. 287.12.

3. A new Sec. 287.11 is added to read as follows:

Sec. 287.11 Pre-enrolled Access Lane.

(a) Pre-enrolled Access Lane (PAL). A PAL is a designated traffic

lane located at a Service checkpoint, which, when in operation, may be

used exclusively by enrolled participants and their passengers in

vehicles authorized by the Service to pass through the checkpoint.

(b) General requirements for Pre-enrolled Access Lane Program. (1)

Participation in the Pre-enrolled Access Lane program is wholly

voluntary and failure to apply or denial of an application does not

prevent any person from passing through the checkpoint in the regular

traffic lanes.

(2) Only United States citizens and members of the classes of

aliens which the Commissioner of the Service or her delegates determine

to be eligible may enroll in the PAL program. To participate in the PAL

program, an applicant must have a permanent or temporary residence in

the United States, and must agree to furnish all information requested

on the application.

(3) The applicant must agree to all terms and conditions required

for use of a Pre-enrolled Access Lane. Immigration, criminal justice

information, and law enforcement records and databases will be checked

to assist in determining the applicant's eligibility. The Service may

require applicants to submit fingerprints, and the Service may provide

those fingerprints to Federal, State, and local government agencies for

the purpose of determining eligibility to participate in the PAL

program.

(4) Any vehicle used in a Pre-enrolled Access Lane must have

current approval from the Service for use in the PAL program.

(5) Enrolled participants may be issued an identification document

showing authorization to participate in the PAL program, and, if such a

document is issued, participants must have it in their possession

whenever using the PAL. In addition, alien participants must be in

possession of a valid form constituting evidence of alien registration

pursuant to Sec. 264.1(b) of this chapter at all times while using the

PAL.

(6) The Service will install any and all equipment, decals,

devices, technology, or methodology it deems necessary on registered

vehicles to ensure that only authorized persons and vehicles use the

PAL.

(7) All devices, decals, or other equipment, methodology, or

technology used to identify persons or vehicles using a Pre-enrolled

Access Lane remain the property of the United States Government at all

times and must be

[[Page 19026]]

surrendered upon request of the Service. Enrolled participants must

abide by the terms set forth by the Service for use of any device,

decal, or other equipment, methodology, or technology. If a vehicle is

sold or otherwise disposed of, it is the responsibility of the enrolled

participant to remove or obliterate any identifying decal or other

authorization for participation in the PAL program before or at the

time of sale or disposal unless otherwise notified by the Service. If

the Service installs an electronic transmitter or similar device on the

vehicle, the enrolled participant must have that device removed by the

Service at the PAL enrollment center prior to sale or disposal of an

authorized vehicle.

(8) Enrolled participants in the PAL program may carry passengers

who are not enrolled in the program in their authorized vehicles in the

PAL as long as all passengers are United States citizens, lawful

permanent residents of the United States, or rightful holders of valid

nonimmigrant United States visas.

(c) Application. (1) Application for Pre-enrolled Access Lane

participation shall be made on Form I-866, Application--Checkpoint Pre-

enrolled Access Lane.

(2) Each person wishing to enroll in the Pre-enrolled Access Lane

program must submit a separate application.

(3) Applications must be supported by documents establishing

identity, United States citizenship or lawful immigration status in the

United States, a valid driver's license, and vehicle registration for

all vehicles being registered. The Service may require additional

documentation where appropriate to substantiate information provided on

the application, as well as written permission from the vehicle owner

to use any vehicle not owned by the applicant in the PAL.

(4) Each person filing an application may be required to present

himself or herself for an interview at a time and place designated by

the Service prior to approval of the application.

(5) The Service may inspect any vehicle that a PAL applicant

desires to register for use in the PAL to ensure that it does not

present evidence of having been used or prepared to be used to smuggle

aliens or controlled substances, and the Service must approve all

vehicles prior to use in the PAL. The Service may prohibit the use of

certain types of vehicles in the PAL for reasons of safety and law

enforcement.

(6) An application may be denied by the Chief Patrol Agent having

jurisdiction over the PAL enrollment center where the application is

filed. Written notice of the decision on the application shall be given

to the applicant or mailed by ordinary mail to the applicant's last

known address. There is no appeal from a denial, but denial is without

prejudice to reapplying for this program. Re-applications following

denial or revocation of the privilege to participate in the PAL program

will not be considered by the Service until 90 days after the date of

denial or revocation.

(7) Registration in the PAL program is limited to individuals who

the Service has determined present a low risk of using the PAL for

unlawful purposes. Criteria that will be considered in the decision to

approve or deny the application include the following: lawful presence

in the United States, criminal history and/or evidence of criminality,

employment, residency, prior immigration history, possession of a valid

driver's license, vehicle type, registration, and inspection.

(8) Applications approved by the Service will entitle the

authorized person and the authorized vehicle to use the PAL for 2 years

from the date of approval of the application or until authorization is

revoked, whichever occurs first.

(d) Acknowledgments and agreements. By signing and submitting the

Form I-866 each applicant acknowledges and agrees to all of the

conditions for participation in the PAL program and the statements on

the Form I-866.

(e) Violation of conditions of a Pre-enrolled Access Lane and

Revocation. An enrolled participant who violates any condition of the

PAL program, or any applicable law or regulation, or who is otherwise

determined by an immigration officer to be ineligible to participate in

the PAL program, may have his or her authorization and the

authorization of his or her vehicle(s) revoked by the Chief Patrol

Agent with jurisdiction over the PAL enrollment center where the

application is filed and may be subject to other applicable sanctions,

such as criminal and/or civil penalties, removal, and/or possible

seizure of goods and/or vehicles. If an authorized vehicle is sold,

stolen, or otherwise disposed of, authorization to use that vehicle in

the PAL is automatically revoked. Within 24 hours of when an authorized

vehicle is stolen, or within 7 days of when such vehicle is sold, or

otherwise disposed of or the license plates are changed, enrolled

participants must give, in person or by facsimile transmission, written

notice of such occurrence to the PAL enrollment center at which their

application was filed. Failure to do so will result in the automatic

revocation of the authorization to use the PAL of the person who

registered such vehicle in the PAL program. Unless revocation is

automatic, the Service will give notice of revocation to the enrolled

PAL participant or mail it by ordinary mail to his or her last known

address. However, written notification is not necessary prior to

revocation of the privilege to participate in the PAL program. There is

no appeal from the revocation of an authorization to participate in the

PAL program.

(f) No benefits or rights conferred. This section does not, is not

intended to, shall not be construed to, and may not be relied upon to

confer any immigration benefit or status to any alien or create any

rights, substantive or procedural, enforceable in law or equity by any

party in any matter.

PART 299--IMMIGRATION FORMS

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

follows:

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

5. Section 299.1 is amended by adding the entry for Form ``I-866''

to the listing of forms, in proper numerical sequence, to read as

follows:

Sec. 299.1 Prescribed forms.

* * * * *

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Edition

Form No. date Title

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* * * * *

I-866............................... 4-15-97 Application--Checkpoint

Pre-enrolled Access

Lane.

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6. Section 299.5 is amended by adding the entry for the Form ``I-

866'' to the listing of forms, in proper numerical sequence, to read as

follows:

Sec. 299.5 Display of control numbers.

* * * * *

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Currently

assigned

INS form No. INS form title OMB control

No.

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* * * * *

I-866................ Application--Checkpoin 1115-0210

t Pre-enrolled Access

Lane.

* * * * *

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[[Page 19027]]

Dated: March 17, 1997.

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-866, Application--

Checkpoint Pre-enrolled Access Lane.

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[FR Doc. 97-10119 Filed 4-17-97; 8:45 am]

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