Establishment of a Dedicated Commuter Lane (DCL) System Costs Fee for Participation in the Port Passenger Accelerated Service System (PORTPASS) Program [61 FR 53303] [FR 57-96]

DOCUMENT NUMBER: FR 57-96

FEDERAL REGISTER CITE: 61 FR 53303

DATE PUBLISHED: October 11, 1996

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 1794-96]

RIN 1115-AD82

Establishment of a Dedicated Commuter Lane (DCL) System

Costs Fee for Participation in the Port Passenger

Accelerated Service System (PORTPASS) Program

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: The Immigration and Naturalization Service (Service) published an interim rule with request for comments on September 29, 1995. In that rule the Service indicated that payment of a system costs fee as determined necessary by the Service to cover the costs of technology would be required of all participants. This rule sets forth the amount of that fee.

DATES: This interim rule is effective October 11, 1996. Written comments must be received on or before December 10, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1794-96 on your correspondence. Comments are available for public inspection at this location by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Robert A. Mocny, Assistant Chief Inspector, Inspectors Division, Immigration and Naturalization Service, 425 I Street, NW., Room 4064, Washington, DC 20536, telephone (202) 514-3019.

SUPPLEMENTARY INFORMATION: Payment of a "DCL system costs fee" by PORTPASS program participants at selected Ports of Entry will be necessary to cover the costs of additional technology and associated construction, equipment, and personnel costs made necessary in those locations by law enforcement and security concerns. The provisions of OMB Circular A-25, dated July 8, 1993, entitled "User Charges," sets forth the guidelines used by the Service in the assessment of PORTPASS user charges under the Independent Offices Appropriations Act of 1952 (IOAA). After payment of the system costs fee, if the approved participant wants to enroll any additional vehicles for his or her own use in the program, he or she will be charged an "additional vehicle fee" to cover the costs of purchasing and installing the necessary equipment in each additional vehicle. If the participant loses his or her PORTPASS document, the participant will have to pay a processing fee. Information about the fees, including the amounts, will be included in publications made available to the public prior to and during the application process. Prior to accepting an application from a person seeking to participate in PORTPASS, the Service will inform the prospective applicant of the amount and nature of all fees associated with the PORTPASS program at that POE.

The PORTPASS program is strictly voluntary. 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 be used as needed to cover the following costs:

(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 as 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: The PORTPASS program is currently and directly benefiting the traveling public by expediting the entry of PORTPASS participants and other members of the traveling public into the United States. The costs to the public have been calcula ted and evaluated. Pursuant to the provisions of the IOAA and OMB Circular No. A-25, the PORTPASS program must be self-sustaining, and the costs of the system carried by the identifiable recipients of the benefits of the PORTPASS program. Furthermore, a pilot DCL is currently operational on the California-Mexico border. To close the DCL because of the inability to collect costs necessary to sustain the system will unnecessarily harm those who use the DCL and who are already on notice that a fee will be c harged once established. Those who wish to forgo payment of the fee will be allowed to withdraw from the program without prejudice. Immediate collection of the fee would enable the DCL to continue its current operation, benefiting the United States, the Service, and members of the traveling public at one of the busiest land border Ports-of-Entry in the United States. It remains in the best interest of all members of the traveling public to collect fees from the users as soon as possible.

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 th is service, participation is voluntary and the benefits of participating in the program far exceed the cost to the traveling public.

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.

List of Subjects in 8 CFR Part 103

Administrative practice and procedures, Aliens, Authority delegations (Government agencies), Freedom of Information, Privacy Act, Reporting and record keeping requirements.

Accordingly, part 103 of 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, 552(a); 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 § 103.7, paragraph (b)(1) is amended by revising the entry for "Form I-823", and by adding a new entry for the "DCL System Costs Fee," immediately before the entry for Form EOIR-40 to read as follows:

§ 103.7 Fees.

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(b) * * *

(1) * * *

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DCL System Costs Fee. For use of a Dedicated Commuter Lane (DCL) located at specific Ports of Entry of the United States by an approved participant in a designated vehicle--$80.00, with the maximum amount of $160.00 payable by a family (husband, wife, and minor children under 18 years-of-age). Payable following approval of the application but before use of the DCL by each participant. This fee is non-refundable, but may be waived by the district director. If a participant wishes to enroll more than one v ehicle for use in the PORTPASS system, he or she will be assessed with an additional fee of--$42 for each additional vehicle enrolled.

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Form I-823. For application to a PORTPASS 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). The application fee may be waived by the district director. If fingerprints are required, the inspector will inform the applicant of the current Federal Bureau of Investigation fee for conducting fingerprint checks prior to accepting the application fee. Both the application fee (if not waived) and the fi ngerprint fee must be paid to the Immigration and Naturalization Service before the application will be processed. The fingerprint fee may not be waived. For replacement of PORTPASS documentation during the participation period--$25.00.

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September 27, 1996 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner,Immigration and Naturalization Service.