[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]



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.


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 
    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:


    1. The authority citation for part 235 continues to read as 

    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 
    (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 
    (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 
    (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 
    (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 
    (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 

[[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 
    (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.


    3. The authority citation for part 286 continues to read as 

    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.

* * * * *
    (f) Costs associated with the administration of the Land Border 
Inspection Fee account.


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

    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.

* * * * *

           Form No.                 date                                    Title                               
*                  *                  *                  *                  *                  *                
I-823.........................      9-10-96  Application--Alternative Inspection Services.                      
*                  *                  *                  *                  *                  *                

    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.

* * * * *

         INS form No. OMB               INS form title       control OMB
*                  *                  *                  *              
                  *                  *                  *               
I-823............................  Application--Alternative    1115-0174
                                    Inspection Services.                
*                  *                  *                  *              
                  *                  *                  *               

[[Page 53834]]

    Dated: September 27, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-26580 Filed 10-11-96; 11:48 am]