[Federal Register Volume 61, Number 201 (Wednesday, October 16, 1996)]
[Rules and Regulations]
[Pages 53830-53834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26580]
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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
[[Page 53832]]
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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[[Page 53834]]
Dated: September 27, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-26580 Filed 10-11-96; 11:48 am]
BILLING CODE 4410-10-M
