[Federal Register Volume 60, Number 189 (Friday, September 29, 1995)]
[Rules and Regulations]
[Pages 50386-50399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24350]
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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: Interim rule with request for comments.
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SUMMARY: This interim rule amends the Immigration and Naturalization
Service (Service) regulations: To allow 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; to allow 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; to
incorporate into 8 CFR 235.13 those provisions currently set forth in 8
CFR 286.8 pertaining to port designations and inspections of persons
applying for admission to the United States; to increase the pool of
eligible participants in pilot projects; and to clarify fee and
application requirements of project participants. This rule is
necessary to enhance inspection services at land border Ports-of-Entry
(POEs) on the northern border and on the California-Mexico border,
while still safeguarding those borders.
DATES: This interim rule is effective September 29, 1995. Written
comments must be received on or before November 28, 1995.
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, Attn:
Public Comment Clerk. To ensure proper handling, please reference INS
No. 1675-94 on your correspondence. Comments are available for public
inspection at this location by calling (202) 514-3048 to arrange for an
appointment.
[[Page 50387]]
FOR FURTHER INFORMATION CONTACT: Robert A. Mocny, Assistant Chief
Inspector, Inspections Division, Immigration and Naturalization
Service, 425 I Street, NW., Room 7228, Washington, DC 20536, telephone
(202) 514-3275.
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 by the Service on
May 13, 1991, at 56 FR 21917-21920. The interim rule placed all
eligibility requirements, application processes, and compliance
requirements pertaining to inspection user fees in Sec. 286.6.
All land border pilot projects were originally scheduled to
terminate on September 30, 1993. This deadline was extended to
September 30, 1996, by Public Law 103-121, October 27, 1993. Public Law
103-121 also limited land border pilot projects to the northern border
of the United States. On August 26, 1994, Congress passed Public Law
103-217, permitting land border pilot projects on the California-Mexico
border. This interim rule, therefore, also amends Service regulations
as necessary to implement a pilot DCL on the California-Mexico border.
In addition to adding a variety of border inspection pilot projects
to selected POEs on the northern and southern land borders, this rule
will move application and eligibility requirements for those persons
seeking to participate in any of the pilot projects to part 235 of this
chapter. By expanding and testing pilot projects on land borders, the
entry of low-risk, legitimate border crossers will be facilitated and
integrity of the United States land borders maintained.
Port Passenger Accelerated Service System (PORTPASS) Program
This rule seeks to expand the testing of land border inspection
pilot programs, hereinafter collectively known as the Port Passenger
Accelerated Service System (PORTPASS) Program. It will add a new
Sec. 235.13, in which general criteria used by the Service to establish
pilot inspection programs on the northern and California-Mexico border
will be set forth. PORTPASS program eligibility requirements,
application procedures, and compliance requirements will be included in
the new Sec. 235.13 because these program elements are inspection
functions. The present provisions in Sec. 286.8, relating to the
collection of land border inspection pilot program fees, will be
retained in the immigration user fee section only for the purposes of
clarity and uniformity.
By identifying eligible, low-risk border crossers and providing a
means for rapid entry of those individuals into the United States,
PORTPASS will lessen the time required for all persons to cross the
border at large POEs. PORTPASS will also benefit those persons who
typically use the smaller, more geographically remote POEs which have
limited hours of operation by designating certain POEs as Automated
Permit Ports (APPs). Eligible persons who apply for, and are approved
for use of, an APP may enter the United States when the APP is not
staffed.
Participation in PORTPASS, including advance screening, inspection
and identification, and subsequent lawful entry through a DCL or APP by
an enrolled participant, will satisfy the reporting requirement of 8
CFR 235.1(a), which states that ``[a]pplication to enter the United
States shall be made in person to an immigration officer at a U.S. port
of entry enumerated in 8 CFR part 100 at a time when the immigration
office at the port is open for inspection.''
PORTPASS participants will not be permitted to import merchandise
or transport controlled or restricted items through the PORTPASS
program. Violation of the rules governing the PORTPASS program, or
violating any immigration, customs, agricultural or other law or
regulation, may result in revocation of the permit access authorization
and other sanctions, including, but not limited to, criminal and/or
administrative prosecution and deportation, seizure of goods and/or
vehicles.
The Form I-823, entitled, ``Application--Dedicated Commuter Lane
Program,'' has been revised and retitled to, ``Application--Inspections
Facilitation Program.'' Each applicant applying for use of a Dedicated
Commuter Lane as part of the PORTPASS program on the northern or
California-Mexico border will be required to file the new form and
submit the required application fee, currently $25. Under certain
circumstances, the $25 application fee may be waived by the district
director having jurisdiction over the POE where the applicant requests
access. This rule will also amend Secs. 299.1 and 299.5 to reflect the
change in the title of the application. In establishing the Land Border
Inspection Pilot Program, Congress identified the need to
counterbalance the inspection of passengers and vehicles with the need
to halt the flow of illegal drugs and illegal aliens into the United
States. Therefore, in addition to filing the I-823, applicants may be
required to submit fingerprints in order to determine eligibility as a
low-risk border crosser. If a fingerprint check is required, the
applicant will be assessed the additional processing fee.
This rule expands the pool of eligible persons who may be permitted
to use the PORTPASS system. One of the stated purposes of the land
border inspections pilot program is the alleviation of traffic
congestion at land border POEs. Therefore, it is necessary to allow the
greatest number of identified, low-risk border crossers to participate.
Currently, only citizens and legal permanent residents of the United
States and citizens of Canada and landed immigrants of Canada who are
citizens of the commonwealth nations are eligible applicants for the
DCL project on the northern border. This rule would also make other
non-immigrants as determined by the Commissioner of the Service,
eligible for participation in all PORTPASS projects. Many third-country
citizens and nationals are admitted to the United States for extended
periods of time and may live in the United States but commute across
the border to work, attend school, or conduct business. Third-country
nationals who are citizens of countries other than the commonwealth
nations are admitted to Canada as permanent residents and may also
require access to the United States for similar purposes. Through the
application process set forth in the regulation, admissibility and
suitability of an applicant for entry to the United States will readily
be determined. The application process will be more thorough than that
required by any person who applies for admission at a land border POE,
and will include a check of computer databases. Additionally, each
applicant will be personally inspected and positively identified by an
immigration officer to further determine admissibility prior to
approval of his or her application. The applicant will also be required
to permit random checks and inspections to be conducted by the Service
at any time or location, to ensure compliance.
Currently, only the principal applicant must pay the required fee
upon approval for the DCL application, although other persons may be
listed on the principal's application. This rule will amend the
regulation by requiring a separate application and application fee from
all applicants to a PORTPASS project, including DCL programs
[[Page 50388]]
currently operable. A family cap of $50, family defined to include
husband, wife and/or children under the age of 18 years of age, will be
imposed so as to not unduly burden families who often travel together
across the border. Applicants under the age of 14 will be required to
complete and submit the application, but will not be required to pay
the application fee. Additionally, a ``system costs fee'' will be
assessed to approved applicants who wish to participate in the system
to cover the costs of additional technology. Information about the fee,
including the amount, will be included in publications made available
to the public prior to and/or during the application process. Law
enforcement and security concerns peculiar to the southern border of
the United States, in addition to the additional documentation required
of Mexican nationals by the Immigration and Nationality Act, augments
the degree that specialized devices, decals, technologies, and other
methods are necessary to inspect applicants for entry. The use of
technology , decals, and other devices or methods used to identify and
inspect persons through DCL's on the southern border increases the cost
to the INS of a DCL on that border. By charging a system costs fee for
each vehicle using the DCL, the cost of operating the DCL will be
fairly distributed among users of the DCL. All revenue generated by the
PORTPASS program will directly support inspections on the land border,
and facilitate traffic flow through designated POEs. Fees collected
will cover the costs of:
(1) Hiring additional immigration inspectors, including all
associated personnel costs;
(2) Expanding, operating and maintaining information systems for
nonimmigrant control;
(3) Construction costs, including those associated with the
addition of new primary traffic lanes (with the concurrence of the
General Services Administration);
(4) Procuring detection devices and conducting training in the
identification of fraudulent documents used by applicants for illegal
entry into the United States;
(5) Other costs associated with the operation of the PORTPASS
program; and
(6) Costs associated with the administration of the Land Border
Inspection Fee Account.
The Service's implementation of this rule a an interim rule, with
provision for post-promulgation public comment, is based on the ``good
cause'' exception found at 5 U.S.C. 553(d)(3). The reason and necessity
for immediate implementation of this interim rule are as follows:
Expanding the pilot program will directly benefit the traveling public
by expediting their entry into the United States. In order to evaluate
the effectiveness and utility of the PORTPASS project, and make a
determination whether to continue and/or expand such projects, data
must be collected. Pilot projects are due to expire September 30, 1996.
Therefore, it is in the best interest of the traveling public to expand
the land border user fee pilot program as soon as possible. All pilot
projects are focused on the traveling public as customers and are
designed to directly benefit large populations. Proceeding with an
interim regulation at this time will allow the affected agencies and
the public to gain maximum benefits from the pilot program.
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.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service
certifies that she has addressed this rule in light of the criteria in
Executive Order 12606 and has determined that it will have no effect on
family well-being.
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 recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Passport and visas.
8 CFR Part 286
Fees, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 299
Administrative practice and procedure, Aliens, Forms, Immigration,
Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. In Sec. 103.7, paragraph (b)(1) is amended by revising the entry
for ``Form I-823'', to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
Form I-823. For application to an Inspections Facilitation Program
under section 286 of the Act--$25.00, with the maximum amount of $50.00
payable by a family (husband, wife, and minor children under 18 years
of age). This fee may be waived for applicants seeking
[[Page 50389]]
access through an Automated Permit Port (APP) on the northern border.
If fingerprints are required, a separate fingerprint processing fee
will be charged.
* * * * *
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
3. 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, and 1252.
Sec. 235.1 [Amended]
4. In Sec. 235.1, paragraph (a) is amended by:
(a) Adding the word ``either'' between the words ``made'' and ``in
person'', and by
(b) Removing the period after the word ``inspection'' and adding
the phrase ``or as provided in Sec. 235.13.''
5. A new Sec. 235.13 is added 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. Participants in the PORTPASS program are
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 also satisfies the
conditions and requirements set forth in Sec. 235.13(b), satisfies the
reporting requirements of Sec. 235.1(a). Each use of the PORTPASS
system constitutes a separate application for entry by the program
participant.
(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 busier 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) System costs fee. A fee charged to participants to cover the
cost of implementing the PORTPASS system.
(2) Designation of POEs for PORTPASS access. The following criteria
shall be used by the Service in the selection of a POE if classifying
that POE as having PORTPASS access under the pilot program:
(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 must be citizens or lawful permanent residents
of the United States, or other non-immigrants as determined 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. Notwithstanding the provisions of 8 CFR part 264, applicants
may be required to submit fingerprints on Form FD-258 or in the manner
prescribed by the Service for the purpose of determining eligibility
for participation in the PORTPASS program.
(4) Application. (i) Application for PORTPASS access shall be made
on Form I-823, Application--Inspections Facilitation Program.
Applications may be submitted during regular working hours at the port-
of-entry having jurisdiction over the port-of-entry for which the
applicant requests access. Applications may also be submitted by mail.
Each applicant must present himself or herself for inspection and
positive identification prior to approval of the application. Each
person seeking PORTPASS access must file a separate application.''
(ii) Applications must be supported by evidence of citizenship,
and, in the case of lawful permanent residents of the United States,
evidence of legal permanent resident status in the United States.
Evidence of residency must be submitted by all applicants. Alien
applicants requiring a valid visa must be in possession of such
documentation and any other documentation as required by the Act at the
time of the application, at the time of each entry, and at all times
while present in the United States.
(iii) A completed application 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. The district director having jurisdiction over the POE
where the applicant requests access may, in his or her discretion,
waive the application fee.
(iv) Each vehicle registered by a PORTPASS participant must be
inspected and approved by the Service prior to use in the PORTPASS
system.
(v) 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.
(vi) 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.
(5) In addition to the conditions set forth in Sec. 235.13(b),
participants must agree to the following:
(i) The installation and/or use of 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 monetary deposit assessed by the Service pending return
of any and all such decals, devices, technology, and other methodology
in undamaged condition;
(ii) The payment of a system costs fee as determined by the Service
as necessary to cover the costs of any and all decals, devices,
technology, or other methodology used to identify and inspect persons
seeking access through the DCL.
(6) The district director having jurisdiction over the POE where
the participant has access may, in his or her discretion, waive the
deposit and ``system costs fee.''
(b) Conditions for participation in the PORTPASS Program. Upon
being inspected and positively identified by an immigration officer and
found admissible and eligible for participation in the PORTPASS
program, a participant in the PORTPASS program must agree to abide by
the following conditions:
[[Page 50390]]
(1) 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 an APP port is not staffed may be made only
through a POE designated as an APP.
(2) Each occupant of a vehicle entering through a POE providing
PORTPASS access must have applied for participation in the PORTPASS
Program and must have been approved for that purpose.
(3) Participants must be in possession of any authorization
documents issued for PORTPASS access and any other entry documents as
required by the Act or by regulation at time of each entry to the
United States.
(4) Participants must positively identify themselves in the manner
prescribed by the Service at the time of each application for entry via
the PORTPASS system. Each use of the PORTPASS system constitutes a
separate application for entry to the United States.
(5) Participants must agree to an initial inspection of any vehicle
prior to use of the PORTPASS access lane.
(6) Participants may not import merchandise or transport controlled
or restricted items while entering the United States under the PORTPASS
Program. The entry of any merchandise or goods must be in accordance
with the laws and regulations of all other federal inspection agencies.
(7) 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.
(8) Participants agree to 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).
(9) Participant acknowledges that all devices, decals, or other
equipment, method, 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. Participant agrees to abide by the terms set
forth by the Service for use of any device, decal, or other equipment,
method or technology, including but not limited to the payment of any
deposit for use of same.
(10) Participant agrees to abide by all conditions required for use
of the special access lane.
(11) 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 before 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, Application--Inspections Facilitation
Program, without fee, prior to use of the vehicle in the PORTPASS
program.
(c) 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, 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.
PART 286--IMMIGRATION USER FEE
5. The authority citation for part 286 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.
6. Section 286.8 is revised to read as follows:
Sec. 286.8 Establishment of pilot programs for the charging of a land
border fee for inspection services.
Under the provisions of section 286(q) of the Act, the Service may
establish pilot programs at one or more land border ports-of-entry to
charge fees for immigration inspection services to be collected by the
Commissioner. Individual ports-of-entry selected by the Commissioner to
participate in such pilot programs may charge a fee to enhance
inspection services and to recover the cost of:
(a) Hiring additional immigration inspectors, including all
associated personnel costs such as salary, benefits, and overtime;
(b) Expansion, operation, and maintenance of information systems
for nonimmigrant control;
(c) Construction costs, including those associated with adding new
primary traffic lanes (with the concurrence of the General Services
Administration);
(d) Procuring detection devices and conducting training to identify
fraudulent documents used by applicants for entry to the United States;
and
(e) Other administrative costs associated with the PORTPASS
Program.
PART 299--IMMIGRATION FORMS
7. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
8. 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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Form No. Edition date Title
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
I-823.................................................... 08-24-95 Application--Inspections Facilitation Program.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
9. 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.
* * * * *
[[Page 50391]]
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Currently assigned
INS form No. INS form title OMB control No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
I-823.................................................. Application--Inspections Facilitation Program............................ 1115-0174
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
Dated: September 26, 1995.
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-823, Application--Inspections
Facilitation Program.
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[FR Doc. 95-24350 Filed 9-28-95; 8:45 am]
BILLING CODE 4410-10-C
