[Federal Register Volume 60, Number 60 (Wednesday, March 29, 1995)]
[Rules and Regulations]
[Pages 16039-16042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7629]



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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 286, and 299

[INS No. 1312-93]
RIN 1115-AB78


Establishment of Pilot Programs To Charge a Commuter User Fee at 
Selected Ports of Entry

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations to implement pilot programs to charge fees for 
inspection service provided to selected land border Ports-of-Entry 
(POEs). Limited resources and increasing commuter traffic over the land 
borders has resulted in costly delays to transborder travelers. Pilot 
projects, such as the Dedicated Commuter Lanes (DCLs), in which 
eligible groups may expeditiously enter the United States through 
designated lanes, will enabled the Service to increase staffing, 
enhance inspection services, and reduce delays in crossing the border.

EFFECTIVE DATE: March 29, 1995.

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: Commuter traffic over our land borders has 
increased significantly each year over the past decade, and in fiscal 
year 1992 accounted for approximately 90 percent of all inspections 
completed. At certain locations, traffic backups sometimes last several 
hours. Such delays are both irritating and costly to the traveling 
public. Through automation and an increase in the inspection force, the 
Service could significantly reduce these delays. However, the 
appropriated funds have not kept up with the rapid growth in land 
border traffic. Although revenue from the Immigration User Fee Account, 
authorized by Congress in 1986 and covering commercial air and sea 
arrivals of POEs, has enabled the Service to more than triple the 
number of available air and seaport inspectors, these funds may not, by 
statute, be used to staff land border POEs.

Provisions of Public Laws 101-515 and 103-121

    In the Departments of Commerce, Justice, and State, the Judiciary, 
and Related Agencies Appropriations Act, 1991, Pub. L. 101-515, dated 
November 5, 1990, Congress included language which allows for pilot 
programs on the inspection fee concept on the land borders. This law, 
added as section 286(q) of the Immigration and Naturalization Act 
(Act), and amended by section 309(a)(2) of the Miscellaneous and 
Technical Immigration and Naturalization Amendments of 1991, Pub. L. 
102-232, dated December 12, 1991, authorizes the Attorney General to 
establish pilot projects which include the charging of a fee and 
provides that the fee collected may be used only to enhance inspection 
services. Pursuant to this law, such pilot projects are to be developed 
by the Attorney General after consultation with the Secretary of the 
Treasury and with Congress. All such pilot projects were scheduled to 
terminate on September 30, 1993, but were extended by Congress until 
September 30, 1996, by the Departments of Commerce, Justice, and State, 
the Judiciary, and Related Agencies Appropriations Act, 1994 Pub. L. 
103-121, dated October 27, 1993. This law also limited these projects 
only to the northern border of the United States. However, in the 
Departments of Commerce, Justice, and State, the Judiciary, and Related 
Agencies Appropriations Act, 1995, Pub. L. 103-317, dated August 28, 
1994, Congress authorized the expansion of the commuter lane pilot 
project to land border crossings in California.

Discussion of Comments

    The Service Published an interim Regulation on May 13, 1991, at 56 
FR 21917-21920, amending 8 CFR Parts 103, 286, and 299. In this rule, 
the Service sought to use DCLs to enhance services to those border 
crossers who most frequently enter the United States over the land 
borders. The interim rule also contained a provision for the 
establishment of a per vehicle user fee at selected POEs. The interim 
rule included a request for comments by August 12, 1991. The Service 
received three responses, each discussing several issues.

Use of Funds

    One commenter expressed concern that the revenues generated from 
the projects will be channeled to the General Fund and not used for the 
specific purpose of aiding border congestion and delays. The revenues 
generated by the DCL implementation are controlled by section 286(q) of 
the Act, which states that such funds will be used to provide land 
border inspection services. A separate land [[Page 16040]] Border 
Inspection Fee Account has been created, and the funds collected must 
be used in direct support and enhancement of the land border 
inspections operations, as directed by Congress.

Concerns About Dedicated Commuter Lanes

    Two commenters expressed concern that many locations on the 
southern border have severe traffic congestion and that, as many people 
enroll in the program, the special commuter lanes will become as 
congested as the regular lanes. If the response to the program were too 
great for one lane, a second lane could be opened at some locations, 
since much of the traffic would be removed from the regular lanes. Only 
by pilot testing this program can the Service determine the efficacy of 
this approach to expedite traffic and alleviate border congestion. The 
purpose of the DCL Program is to pre-screen those commuters deemed to 
be low-risk, so that only a brief examination of the vehicle or 
personal identifier need be conducted, thereby shortening the time 
needed for each individual inspection, and expediting the flow of 
traffic. By removing these commuters from the regular lanes, all 
traffic moves more quickly. In the test conducted in Blaine, 
Washington, the commuter lane still expedites traffic, in spite of a 
large number of enrollees.
    The Service is bound by the provisions of Pub. L. 103-121 and 
cannot consider DCLs on the southern border, except in California, 
until legislation authorizes us to do so. However, the Service will 
explore any operational alternatives to further promote facilitation of 
entry and expeditious primary processing to decrease congestion at 
affected POEs along the southern border.
    One commenter stated that anyone is a potential smuggler and that 
all who enter the United States along the southern border should face 
the risk of being searched. The application procedures for enrollment 
in the DCL Program provides a more thorough screening of DCL users than 
would normally be conducted were the person crossing through normal 
traffic lanes. In addition, the regulations provide for random 
compliance checks of participants and their vehicles at any time during 
use of the commuter lane.
    One commenter expressed concern that there is an element of elitism 
in the application process for participation in the DCL Program, in 
that persons with higher incomes will receive special treatment, can 
better afford the benefit, and will be able to more easily provide 
adequate background information.
    The DCL Program is a strictly voluntary program. Those who feel 
they cannot afford the fee need not participate and can continue to 
cross through the regular traffic lanes at no cost. All persons 
crossing a bridge must pay a bridge toll or fee, regardless of income. 
The average per-crossing cost for the DCL Program, a program designed 
for frequent crossers, is significantly lower than that paid to cross 
most bridges. Based upon both random sampling and local community 
assessments, the current annual cost of $25.00 per application is not 
cost prohibitive to the majority of the travelling public.

Economic Impact of User Fees

    One Commenter objected to the establishment of per vehicle fees as 
imposing an extra burden on transborder industry and border communities 
and a barrier to trade. The commenter suggested that with bridge-
crossing fees already levied at many points along the southern border, 
the additional fees would render the crossing too expensive and 
eventually lead to reduced trade and a decline in the economies of the 
border communities.
    Traffic congestion at the border also costs local communities 
enormous amounts of revenue in lost time and productivity, as well as 
severely impacting the environment. The purpose of imposing user fees 
of this type is to allow the Service to hire more staff and implement 
technology to aid inspection and expedite traffic.
    The section allowing for the establishment of a per vehicle fee has 
been removed from the final rule. Such a broad-based fee is not 
consistent with the intent of the legislation of which this regulation 
is based, which is to establish pilot projects at selected locations.

Participation in the DCL Program

    The interim rule restricted participation in the DCL Program to 
citizens of the United States and contiguous countries. One commenter 
recommended expanding the identified groups eligible to participate in 
the DCL Program. The suggestion coincided with recommendations made by 
local officials and current participants in the DCL Program. 
Accordingly, additional user groups have been added to participate in 
the DCL Program as follows: third-country aliens who have been lawfully 
admitted for permanent residence (LAPRs) in the United States and 
lawful permanent residents (Landed immigrants) in Canada who are 
citizens of the Commonwealth countries. Expansion of eligibility to 
LAPRs of the United States, and landed immigrants of Canada who are 
citizens of the Commonwealth countries is in keeping with the 
Immigration and Naturalization Act entry requirements for those 
travelers who are not required visas to enter into the United States 
for business or pleasure. Since the restriction on operating a 
Dedicated Commuter Lane was only recently lifted, and the Service 
regulates permanent residents of Mexico differently than Canadian 
permanent residents, further study on whether or not to include 
permanent residents of Mexico in the DCL program is needed. Inclusion 
of permanent residents of Mexico may be proposed in future regulation 
by the Service.

Additional Changes

    The interim rule contained the criteria that the location selected 
have an identifiable group of low-risk border crossers who cross a 
minimum of once weekly for a regular defined purpose. To allow for 
greater use of the DCL Program and more flexibility for its users, the 
final rule removes the requirement that the participant enter once 
weekly.
    The interim rule provided that only the District Director could 
revoke an individual's participation in the DCL program. The final rule 
extends this authority to the Chief Patrol Agent if the participant 
violates any of the conditions of the DCL program and is encountered by 
the Border Patrol outside the POE. This addition to the Rule will 
enhance control of participation in the DCL program.
    Participation in the DCL Program requires the payment of an annual 
fee for adjudication of the application and issuance of a vehicle and/
or personal identifier. The initial DCL in Blaine used a windshield 
decal to identify a participating vehicle. Diverse types of technology 
may be introduced and used for rapid vehicle or driver identification, 
ranging from a simple method involving windshield stickers or similar 
items, to radio frequency identification tags or various forms of 
biometrics. Language in the final rule has been modified to allow for 
the use of other forms of identification technology.

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 [[Page 16041]] 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, Sec. 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 assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that is will have no effect on 
family well-being.
    The information collection requirements contained in this rule have 
been approved 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 286

    Fees, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 299

    Administrative practice and procedure, Aliens, Forms, Immigration, 
Reporting and recordkeeping requirements.

    Accordingly, the interim rule which was published on May 13, 1991, 
at 56 FR 21917-21920 amending 8 CFR parts 103, 286, and 299 is adopted 
as a final rule with the following changes:

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 286.8 is amended by:
    a. Revising paragraph (b)(1)(i);
    b. Removing the word ``and'' at the end of the sentence of 
paragraph (b)(1)(ii);
    c. Removing the ``.'' at the end of paragraph (b)(1)(iii), and 
replacing it with a ``; and'';
    d. Adding paragraph (b)(1)(iv);
    e. Revising paragraph (b)(2)(i) through (v);
    f. Adding paragraph (b)(2)(vi);
    g. Revising paragraph (b)(4)(iii);
    h. Revising paragraph (b)(6);
    i. Revising paragraph (b)(7); and by
    j. Removing paragraph (c), to read as follows:


Sec. 286.8  Establishment of pilot programs for the charging of a land 
border user fee for inspection services.

* * * * *
    (b) * * *
    (1) * * *
    (i) The location has an identifiable group of low-risk frequent 
border crossers;
* * * * *
    (iv) The port of entry is located on the northern or the California 
border of the United States.
    (2) * * *
    (i) The applicant is a citizen of the United States or a citizen of 
the country contiguous to the specific port of entry sponsoring the 
commuter lane program in which the applicant seeks to participate; or, 
the applicant is a national or citizen of a third-country who has been 
lawfully admitted for permanent residence (LAPR) in the United States; 
or, the applicant is a lawful permanent resident (landed immigrant) of 
Canada who is a citizen of the Commonwealth countries;
    (ii) The applicant who is not a United States citizen must be 
otherwise admissible to the United States and must be in possession of 
any documents required under Sec. 212.1 of this chapter for entry to 
the United States whenever using the dedicated commuter lane;
    (iii) The applicant agrees to furnish all information requested on 
the application, Form I-823, Application--Dedicated Commuter Lane 
Program;
    (iv) The applicant pays the required fee, upon approval of the 
application;
    (v) The applicant agrees to a physical inspection of the registered 
vehicle prior to initial use of the dedicated commuter lane; and
    (vi) When entering through a dedicated commuter lane, each 
applicant must be in possession of any authorization document or 
documents issued for use of the dedicated commuter lane.
* * * * *
    (4) * * *
    (iii) Applications for participation in the dedicated commuter lane 
program must be submitted annually at a port of entry having a 
dedicated commuter lane program. The application may be submitted 
either in person or by mail; however, each applicant must be personally 
inspected prior to approval of the application. Authorization 
documents, such as decals or authorization letters, shall be valid for 
one year from date of approval.
* * * * *
    (6) Violation of conditions of the program. A participant who 
violates any condition for the use of the dedicated commuter lane may 
be removed from the program at the discretion of the District Director, 
and shall be subject to the imposition of applicable fines, penalties, 
and/or sanctions as provided by law. The Chief Patrol Agent may, in an 
exercise of discretion, remove from the program a participant who 
violates any condition of use and who is encountered by the Border 
Patrol outside of the port of entry.
    (7) Responsibility of participant.
    (i) It shall be the responsibility of the participant to notify the 
Service if an approved vehicle is sold, stolen, or disposed of 
otherwise. If the vehicle is sold or damaged beyond repair, it is the 
responsibility of the participant to remove or obliterate any 
identifier or other authorization for participation in the program from 
the vehicle at the time of such sale or disposal. A participant must 
submit a new properly executed Form I-823 with fee in order to receive 
a new authorization document or device, valid for one year from date of 
approval.
    (ii) If a damaged vehicle is being repaired and the identifier must 
be affixed to the vehicle, the Service may issue a replacement 
identifying document or device. The identifying authorization shall be 
valid to the date of the original authorization. The program 
participant must submit a properly executed Form I-823, without fee, as 
well as a receipt, properly documented with the Vehicle Identification 
Number and the vehicle license tag number, for the repair of the 
vehicle.
    (iii) If a windshield becomes broken and must be replaced, and an 
identifying decal authorizing that [[Page 16042]] vehicle to use a 
dedicated commuter lane is affixed to the broken windshield, the 
Service may issue a replacement decal. The program participant must 
submit a properly executed Form I-823, Application--Dedicated Commuter 
Lane Program, without fee, as well as a receipt, properly documented 
with the Vehicle Identification Number and the vehicle license tag 
number, for the purchase of a new windshield.

    Dated: January 18, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 95-7629 Filed 3-28-95; 8:45 am]
BILLING CODE 4410-10-M