02-8011. Establishment of a $3 Immigration User Fee for Certain Commercial Vessel Passengers Previously Exempt

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Proposed rule.

SUMMARY:

This rule proposes to amend the Immigration and Naturalization Service (Service) regulations in accordance with section 109 of the Department of Justice Appropriations Act, 2002 (Title I of Public Law 107-77), signed November 28, 2001. This law authorizes the collection of a $3 fee for certain commercial vessel passengers previously exempt under section 286(e)(1) of the Immigration and Nationality Act (Act). This proposed rule would amend the Service regulations to require certain commercial vessel operators and/or their ticketing agents to charge and collect a $3 user fee from every commercial vessel passenger whose journey originated in the U.S., Canada, Mexico, a territory or possession of the United States, or an adjacent island except those individuals exempted under section 286(e) of the Act or under 8 CFR part 286. This action is necessary to implement section 109 of the Department of Justice Appropriations Act, 2002.

DATES:

Written comments must be submitted on or before May 3, 2002.

ADDRESSES:

Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2180-01 on your correspondence. You may also submit comments electronically to the Service at [e-mail]. When submitting comments electronically please include the INS No. 2180-01 in the subject box. Comments are available for public inspection at the above address by calling [phone] to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Georgia Mayers, Chief of Cash Management, Office of Finance, Immigration and Naturalization Service, 425 I Street, NW., Room 6034, Washington, DC 20536, telephone [phone].

SUPPLEMENTARY INFORMATION:

What Is the Immigration User Fee?

Beginning in Fiscal Year 1987, the Service was mandated by Congress via the 1987 Appropriations Act for the Department of Justice, Public Law 99-591, to collect (with limited exceptions) an immigration user fee for each passenger arriving in the United States by commercial air or sea conveyance. Immigration user fee funds are used to operate air and sea inspection services and to fund other related activities.

How Will the Service Use the Fees That Are Collected?

As provided by law, the user fees that are collected may be used, among other things to:

• Provide immigration inspection and preinspection services for commercial aircraft and vessels;
• Provide overtime immigration inspection services for commercial aircraft or vessels;
• Administer debt recovery, including the establishment and operation of a national collections office;
• Expand, operate, and maintain information systems for nonimmigrant control and debt collection;
• Detect fraudulent documents used by passengers traveling to the United States, including training of, and technical assistance to, commercial airline personnel regarding such detection;
• Provide detention and removal services for inadmissible aliens arriving on commercial aircraft and vessels and for any inadmissible alien who has attempted illegal entry into the United States through avoidance of immigration inspection at air or sea ports-of-entry; and,
• Administer removal and asylum screening proceedings at air or sea ports-of-entry for inadmissible aliens arriving on commercial aircraft and vessels, including immigration removal proceedings resulting from the presentation of fraudulent documents and the failure to present documentation and for any inadmissible alien who has attempted illegal entry into the United States by avoiding immigration inspection at air or sea ports-of-entry.

Why Is the Service Proposing To Apply a $3 Inspection Fee To Certain Previously Exempt Commercial Vessel Passengers?

The authorization to charge and collect a user fee from certain previously exempt commercial vessel passengers is provided in section 109 of the Department of Justice Appropriations Act, 2002 which was enacted on November 28, 2001. Prior to the enactment of this law, Commercial vessel passengers, whose journeys originated in Canada, Mexico, a state, territory or possession of the United States, or an adjacent island, were statutorily exempt from paying the Immigration User Fee prescribed by section 286(d) of the Act. While these vessel passengers were exempt from paying the fee, the Service was still required to provide inspection services. This exemption resulted in the Service's inability to invest in necessary staffing and technology resources. The new fee will begin to provide for the recovery of inspection operations and related inspection activities that support seaport immigration inspection.

Did the Department of Justice Appropriation Act, 2002 Specify Any Other Changes to Section 286 of the Act?

The Department of Justice Appropriations Act, 2002 also directed the Attorney General to increase the immigration user fee prescribed in section 286(d) of the Act by $1 from $6 to $7 for all passengers previously required to pay the $6 fee. This change has been published in the Federal Register as a final rule.

What Changes Are Proposed in This Rule?

This rule proposes to add 8 CFR 286.2(b) and revise 8 CFR 286.3(a) to provide for the collection of the $3 commercial vessel fee and removes the exemption of commercial vessel passengers whose journeys originated in Canada, Mexico, a state, territory or possession of the United States, or an adjacent island. In accordance with the Department of Justice Appropriations Act, 2002, the rule would also include an exemption from the $3 fee for passengers arriving by way of Great Lakes international ferries or Great Lakes vessels on the Great Lakes and connecting waterways when operating on a regular schedule.

How Is the $3 Fee Proposed To Be Collected?

Affected commercial vessel carriers and ticket-selling agents would be subject to the same fee collection responsibilities, remittance and statement procedures, maintenance of records, and penalties as stated in 8 CFR 286.2, 286.4, 286.5, 268.6 and 286.7 and that are currently required of other non-exempt immigration user fee remittances.

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 this rule will not have a significant economic impact on a substantial number of small entities. Immigration user fees are already being collected by commercial vessel carriers and/or their ticketing agents in connection with voyages originating in previously non-exempt areas. Since the passengers rather than the carriers ultimately pay the immigration inspection user fee, these passengers are not considered small entities as that term is defined in 5 U.S.C. 601(6), this rule does not bear an impact on small entities.

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 Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in cost 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.

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 regulation has been submitted to the Office of Management and Budget for review.

Executive Order 13132

This rule 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 section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects in 8 CFR Part 286

• Air carriers
• Immigration
• Maritime carriers
• Reporting and recordkeeping requirements

Accordingly, part 286 of chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

PART 286—IMMIGRATION USER FEE

1. The authority citation for part 286 continues to read as follows:

Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.

2. Section 286.2 is amended by redesignating paragraph (b) as paragraph (c), and by adding a new paragraph (b), to read as follows:

§ 286.2

Fee for arrival of passengers aboard commercial aircraft or commercial vessels.

* * * * *

(b) A fee, in the amount prescribed in section 286(e)(3) of the Act, per individual is charged and collected by the Service for the immigration inspection at a port-of-entry in the United States, or for the preinspection in a place outside the United States of each commercial vessel passenger whose journey originated in the U.S., Canada, Mexico, a state, territory or possession of the United States, and adjacent islands, except as provided in § 286.3.

* * * * *

3. Section 286.3 is amended by revising the introductory text, and by revising paragraph (a) to read as follows:

§ 286.3

Exceptions.

The fees set forth in §§ 286.2(a) and 286.2(b) shall not be charged or collected from passengers who fall within any one of the following categories:

(a) Persons arriving at designated ports-of-entry of passengers arriving by the following vessels, when operating on a regular schedule: Great Lakes international ferries or Great Lakes vessels on the Great Lakes and connecting waterways;

* * * * *

Dated: March 28, 2002.

James W. Ziglar,

Commissioner, Immigration and Naturalization Service.