Canadian Border Boat Landing Program

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 235

[INS No. 1796-96]

RIN 1115-AE53

Canadian Border Boat Landing Program

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 to clarify and standardize procedures for the

application, issuance, and use of Form I-68, Canadian Border Boat

Landing Card. This rule promotes uniformity and clarity in the

application requirements, decision-making process, and issuance of

entry documents, while enhancing effective and efficient border

enforcement within the Canadian Border Boat Landing (I-68) program.

DATES: Effective Date: This rule is effective September 11, 1997.

Comment Date: Written comments must be received on or before

November 10, 1997.

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. To ensure

proper handling, please reference INS No. 1796-96 on your

correspondence. Comments are available for public inspection at this

location by calling

[[Page 47750]]

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

FOR FURTHER INFORMATION CONTACT:

Ronald J. Hays, Assistant Chief Inspector, Inspections Division,

Immigration and Naturalization Service, 425 I Street, NW., Room 4060,

Washington, DC 20536, Telephone (202) 514-0912.

SUPPLEMENTARY INFORMATION: The Service regulations at 8 CFR 235.1(a)

require that in general an application for entry to the United States

must be made in person to an immigration officer at a U.S. Port-of-

Entry (POE) at a time when the port is open for inspection. However, 8

CFR 235.1(e) provides an exception to this requirement by providing for

participation in the Canadian Border Boat Landing Permit (I-68) program

which allows certain persons who enter the United States by small boat

to be inspected once per year, and thereafter enter from time to time

for recreational purposes without further inspection. Boaters who

choose not to obtain Form I-68 must report in person for inspection at

a POE upon each entry to the United States. This is often difficult,

since the Service lacks sufficient resources to station inspectors

along all waterways. Therefore, boaters who have not obtained Form I-68

may report in person to Inspectors of the United States Customs

Service, who are cross-designated to perform immigration inspections.

Inspection by a Customs officer will satisfy the Service requirement of

reporting in person for immigration inspection. However, telephonic

inspections, allowed by Customs Service regulations to satisfy their

reporting requirement, are not authorized by Service regulations.

Although United States citizens are not generally subject to the

immigration laws, the regulations at 8 CFR 235.1(b) require that any

person claiming to be a United States citizen must establish that fact

to an immigration officer. United States citizens who enter the United

States without Form I-68 or without reporting in person for inspection

may be subject to fines or criminal sanctions. There is also the

potential for some inconvenience to the United States citizen boater

not in possession of Form I-68 to demonstrate United States citizenship

when encountered by a Service officer. United States citizen boaters

who transport aliens not in possession of Form I-68, and who do not

report in person for inspection are subject to arrest, fine,

imprisonment, and possible seizure of the boat. Non-United States

citizens traveling by boat who do not have Form I-68, or who have not

presented themselves for inspection, are subject to arrest and possible

fine or deportation.

The I-68 program was established in 1963 to facilitate boating and

fishing on boundary waters in Minnesota. It was expanded to other areas

in 1967. The program was not implemented nationally until several years

ago, when Service districts along the northern border began a publicity

campaign to educate boaters as to the proper requirements for entry

into the United States by boat and the benefits of participation in the

program. Most Service districts make Form I-68 permits easily available

by sending inspectors to marinas and boat shows and involving boating

organizations in the process. Until October 9, 1995, the Form I-68 was

issued without charge.

By a final rule published in the Federal Register on August 7,

1995, at 60 FR 40064-9, the Service established a fee for applying to

participate in the I-68 program. Effective October 9, 1995, a fee of

$16.00 per individual with a family cap of $32.00 was established. A

family was described in that rule as a husband, wife, unmarried

children under 21 years of age, and the parents of either husband or

wife residing at the same address. Under the Federal User Fee Statute,

31 U.S.C. 9701, and the Office of Management and Budget Circular A-25,

User Charges, reasonable charges should be imposed to recover the full

cost to the Federal Government of rendering certain services that

provide a specific benefit to the recipient of those services.

During the past several years, members of the boating community and

members of Congress have expressed concern regarding the I-68 program.

Specifically, they were concerned that the enrollment and enforcement

criteria and procedures vary from district office-to-district office

and that the permit is sometimes difficult to obtain. The imposition of

a fee for the permit has also sparked concern.

In an effort to improve the I-68 program, the Service met with

members of the boating community, other Federal inspection and

enforcement agencies, congressional staffers, and representatives of

the Canadian Government in Alexandria, Virginia, on August 13, 1996.

Numerous suggestions for improving the program were received and have

been incorporated into this interim regulation. The following is a

discussion of those concerns and the Service's response.

Geographical Limitations

One of the concerns the Service received relates to the

geographical limitations on travel by those permit holders who are not

United States citizens or permanent residents. The current regulation

allows for visits for pleasure which do not involve travel beyond the

immediate shoreline area to include nearby neighborhoods and shopping

centers. This lack of specificity in the regulation has led to varying

enforcement of the program. The Service has determined to eliminate

this problem by specifying the area within which permit holders may

travel. The Service currently has a program on the southern border,

similar in some respects to the I-68 program, which allows Mexican

citizens who are in possession of a Mexican Border Crossing Card to

enter the United States for brief visits for pleasure which do not

exceed 72 hours in duration or travel more than 25 miles from the

border. Since these programs are comparable, the Service has determined

that it is equitable to afford I-68 program participants a similar

privilege of travel as is accorded to Mexican visitors in possession of

a Mexican Border Crossing Card. In addition, as two large bodies of

water along the border, Puget Sound and Lake Michigan, lie almost

wholly within the United States, the Service will also permit travel by

program participants within 25 miles of the shoreline area of these

bodies of water as well.

Obtaining the Form I-68

Another concern related to the difficulty in obtaining a permit.

Currently, persons who wish to enroll in the program must travel,

yearly, to a staffed Service office and apply in person. The Service

proposes to reduce this burden by allowing persons who are renewing a

valid permit to do so by mail. This means that a person who maintains

his or her membership in the program will only have to report in person

to obtain his or her first permit, unless the district director

determines, on a case-by-case basis to require the applicant to report

in person. The Service will evaluate the eligibility of any person to

participate in the program by an examination of any records available

to the Service. Application forms will also be made available by mail

to the public.

The Service will also reduce the burden on the public by

considering those persons who are enrolled in one of the Service's

Alternative Inspections programs such as the Immigration and

Naturalization Service's Passenger Accelerated Service System

(INSPASS), the Dedicated Commuter Lane (DCL), or an Automated Permit

Port (APP) program to be automatically included in the I-68 program

without requiring an

[[Page 47751]]

additional application or fee. These alternative Inspections programs

currently allow program participants the privilege of entering the

United States by air or car without having to report for immigration

inspection each time they do so. Since only the means of entry differs

from the I-68 program, it is logical to include participants in other

Alternative Inspections programs in the I-68 program.

Fee

The Service received several complaints concerning the charging of

a fee for participation in the I-68 program. As previously stated in

the August 7, 1995, final rule, the Federal User Fee Statute (31 U.S.C.

9701) and regulations require that recipients of special benefits bear

the cost of providing these services. The Office of Management and

Budget (OMB) Circular A-25, User Charges, states as a general policy

that reasonable charges should be imposed to recover the full cost to

the Federal Government of rendering such services. In July 1993, the

Office of the Inspector General completed an audit of services

performed and special benefits provided by the Service. The audit

concluded that the Service was not in compliance with OMB directives

with regard to these services, including the Canadian Border Boat

Landing Permit, Form I-68, and that failure to collect fees for

services resulted in the cost being paid by the general public out of

the general fund appropriation. Accordingly, in 1995 the Service

established a fee of $16.00 to cover the costs associated with

adjudicating an application to participant in the program. This rule

will not change the fee.

The Service has also been requested by the Government of Canada to

include within the program landed immigrants to Canada who are not

citizens of British Commonwealth Countries. At present, for example, a

French citizen who is a landed immigrant in Canada is not eligible to

participate in the I-68 Program. Upon consideration, the Service has

decided to include such persons within the program provided they are

nationals of a country designated for participation in the Visa Waiver

Pilot Program and are in possession of a valid unexpired passport

issued by their country of nationality, an unexpired, United States

visa, and a valid I-94 marked for multiple entries to the United States

at both the time they make application for inclusion within the program

and each time they take advantage of the program to enter the United

States.

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

provisions for post-promulgation public comments, is based upon the

``good cause'' exceptions found at 5 U.S.C. 553 (b)(B) and (d)(3). The

reasons and the necessity for immediate implementation of this interim

rule without prior notice and comment are as follows: this interim rule

relieves a restriction, does not impose a new burden, and is beneficial

to the traveling public and United States businesses which are

patronized by persons benefiting from this rule.

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 Form I-68 is

applied for by individuals, not small entities, and the rule simply

codifies policies and procedures that have been in place for many

years, imposing no additional burden on applicants or small entities.

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 12988 Civil Justice Reform

The rule meets the applicable standards set forth in sections 3(a)

and 3(b)(2) of E.O. 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

million 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 Section 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 million 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.

Paperwork Reduction Act

This interim rule does not impose any new reporting or

recordkeeping requirements. The information collection (Form I-68) was

previously approved for use by the Office of Management and Budget

(OMB) under the OMB control number 1115-0065.

List of Subjects in 8 CFR Part 235

Administrative practice and procedure, Aliens, Immigration,

Passports and visas.

Accordingly, part 235 of chapter I of title 8 of the Code of

Federal Regulations is amended as follows:

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; 8 CFR part 2.

2. In Sec. 235.1, paragraph (e) is revised to read as follows:

Sec. 235.1 Scope of examination.

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(e) U.S. citizens, lawful permanent residents of the United States,

and other aliens, entering the United States along the northern border,

other than at a Port-of-Entry. A citizen or lawful permanent resident

of the United States, a Canadian national or landed immigrant of Canada

having a common nationality with nationals of Canada, or a landed

immigrant of Canada who is a national of a country listed in

Sec. 217.2(a), may, if in possession of a valid, unexpired, Canadian

Border Boat Landing Permit (Form I-68) or evidence

[[Page 47752]]

of enrollment in any other Service Alternaitve Inspections program

(e.g., the Immigration and Naturalization Service Passenger Accelerated

Service System (INSPASS) or the Port Passenger Accelerated Service

System (PORTPASS)), enter the United States by means of a pleasure

craft along the northern border of the United States from time-to-time

without further inspection. No persons other than those described in

this paragraph may participate in this program. Landed immigrants of

Canada who do not share a common nationality with nationals of Canada

but whose country of nationality is listed in Sec. 217.2(a) must also

be in possession of a valid, unexpired, passport issued by their

country of nationality, a valid, unexpired, United States visa, and a

valid, unexpired Form I-94 marked for multiple entries to the Untied

States. When an entry to the United States is made by a person who is a

Canadian citizen or a landed immigrant of Canada, entry may be made

under this program only for a purpose as described in section

101(a)(15)(B)(ii) of the Act. Persons seeking to enter the United

States for any other purpose must do so at a staffed Port-of-Entry.

Persons aboard a vessel which has crossed the international boundary

between the United States and Canada and who do not intend to land in

the United States, other than at a staffed Port-of-Entry, are not

required to be in possession of Form I-68 or evidence of enrollment in

an Alternative Inspections program merely because they have crossed the

international boundary. However, the Service retains the right to

conduct inspections or examinations of all persons applying for

admission or readmission to or seeking transit through the United

States in accordance with the Act.

(1) Application. An eligible applicant may apply for a Canadian

Border Boat Landing Permit by completing the Form I-68 in triplicate.

Application forms will be made readily available through the Internet,

from a Service office, or by mail. A family may apply on a single

application. For the purposes of this paragraph, a family is defined as

a husband, wife, unmarried children under the age of 21, and the

parents of either husband or wife, who reside at the same address. In

order for the I-68 application to be considered complete, it must be

accompanied by the following:

(i) For each person included on the application, evidence of

citizenship, and, if not a citizen of the Untied States or Canada,

evidence of legal permanent resident status in either the United States

or Canada. Evidence of residency must be submitted by all applicants.

It is not required that all persons on the application be of the same

nationality; however, they must all be individually eligible to

participate in this program.

(ii) If multiple members of a family, as defined in paragraph

(e)(1) of this section, are included on a single application, evidence

of the familial relationship.

(iii) A fee as prescribed in Sec. 103.7(b)(1) of this chapter.

(iv) A copy of any previously approved Form I-68.

(v) A landed immigrant of Canada who does not have a common

nationality with nationals of Canada must also present a valid,

unexpired, Form I-94 endorsed for multiple entries to the United

States, his or her passport, and United States visa.

(2) Submission of Form I-68. Except as indicated in this paragraph,

Form I-68 shall be properly completed and submitted in person, along

with the documentary evidence and the required fee as specified in

Sec. 103.7(b)(1) of this chapter, to a United States immigration

officer at a Canadian border Port-of-Entry located within the district

having jurisdiction over the applicant's residence or intended place of

landing. Persons previously granted Form I-68 approval may apply by

mail to the issuing Service office for renewal if a copy of the

previous Form I-68 is included in the application. At the discretion of

the district director concerned, any applicant for renewal of Form I-68

may be required to appear for an interview in person if the applicant

does not appear to be clearly eligible for renewal.

(3) Denial of Form I-68. If the applicant has committed a violation

of any immigration or customs regulation or, in the case of an alien,

is inadmissible to the United States, approval of the Form I-68 shall

be denied. However, if, in the exercise of discretion, the district

director waives under section 212(d)(3) of the Act all applicable

grounds of inadmissibility, the I-68 application may be approved for

such non-citizens. If the Form I-68 application is denied, the

applicant shall be given written notice of and the reasons for the

denial by letter from the district director. There is no appeal from

the denial of the Form I-68 application, but the denial is without

prejudice to a subsequent application for this program or any other

Service benefit, except that the applicant may not submit a subsequent

Form I-68 application for 90 days after the date of the last denial.

(4) Validity. Form I-68 shall be valid for 1 year from the date of

issuance, or until revoked or voided by the Service, except that in the

case of a Form I-68 issued to a landed immigrant of Canada who does not

have a common nationality with nationals of Canada, such Form I-68

shall not be valid for longer than the validity of the applicant's Form

I-94.

(5) Conditions for participation in the I-68 program. Upon being

inspected and positively identified by an immigration officer and found

admissible and eligible for participation in the I-68 program, a

participant must agree to abide by the following conditions:

(i) Form I-68 may be used only when entering the United States by

means of a vessel exclusively used for pleasure, including chartered

vessels when such vessel has been chartered by an approved Form I-68

holder. When used by a person who is a not a citizen or a lawful

permanent resident of the United States, admission shall be for a

period not to exceed 72 hours to visit within 25 miles of the shore

line along the northern border of the United States, including the

shore line of Lake Michigan and Puget Sound.

(ii) Participants must be in possession of any authorization

documents issued for participation in this program or another Service

Alternative Inspections program (INSPASS or PORTPASS). Participants

over the age of 15 years and who are not in possession of an INSPASS or

PORTPASS enrollment card must also be in possession of a photographic

identification document issued by a governmental agency. Participants

who are landed immigrants of Canada and do not have a common

nationality with nationals of Canada must also be in possession of a

valid, unexpired, Form I-94 endorsed for multiple entries to the United

States, a valid passport, and United States visa.

(iii) Participants may not import merchandise or transport

controlled or restricted items while entering the United States under

this program. The entry of any merchandise or goods must be in

accordance with the laws and regulations of all Federal Inspection

Services.

(iv) 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.

(v) Participants 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. 802).

[[Page 47753]]

(vi) Participants acknowledge that all devices, decals, cards, or

other Federal Government supplied identification or technology used to

identify or inspect persons or vessels seeking entry via this program

remain the property of the United States Government at all times, and

must be surrendered upon request by a Border Patrol Agent or any other

officer of a Federal Inspection Service.

(vii) The captain, charterer, master, or owner (if aboard) of each

vessel bringing persons into the United States is responsible for

determining that all persons aboard the vessel are in possession of a

valid, unexpired Form I-68 or other evidence of participation in a

Service Alternative Inspections program (INSPASS or PORTPASS) prior to

entry into the territorial waters of the United States. If any person

on board is not in possession of such evidence, the captain, charterer,

master, or owner must transport such person to a staffed United States

Port-of-Entry for an in-person immigration inspection.

(6) Revocation. The district director, the chief patrol agent, or

their designated representatives may revoke the designation of any

participant who violates any condition of this program, as contained in

paragraph (e)(5) of this section, 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, has abandoned his or her

residence in the United States or Canada, is inadmissible to the United

States, or who is otherwise determined by an immigration officer to be

ineligible for continued participation in this program. Such persons

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 vessels. If permission to participate is revoked, a

written request to the district director for restoration of permission

to participate may be made. The district director will notify the

person of his or her decision and the reasons therefore in writing.

(7) Compliance checking. Participation in this program does not

relieve the holder from responsibility to comply with all other aspects

of United States Immigration, Customs, or other Federal inspection

service laws or regulations. To prevent abuse, the United States

Immigration and Naturalization Service retains the right to conduct

inspections or examinations of all persons applying for admission or

readmission to or seeking transit through the United States in

accordance with the Immigration and Nationality Act.

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Dated: July 30, 1997.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 97-24124 Filed 9-10-97; 8:45 am]

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