DOCUMENT NUMBER: FR 16-97

FEDERAL REGISTER CITE: 62 FR 19024

DATE PUBLISHED: April 18, 1997

BILLING CODE 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 287 and 299

[INS No. 1830-97]

RIN 1115-AE80

Establishment of Pre-enrolled Access Lane (PAL) Program at Immigration

and Naturalization Service Checkpoints

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This rule amends the Immigration and Naturalization Service (Service) regulations by establishing a Pre-enrolled Access Lane (PAL) program for the use of eligible persons and vehicles at Service checkpoints within the United States. This rule is necessary to permit the Service to facilitate passage through Service checkpoints while safeguarding the integrity of law enforcement at the checkpoints.

DATES: This interim rule is effective April 18, 1997. Written comments must be received on or before June 17, 1997.

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, Attn: Public Comment Clerk. To ensure proper handling, please reference 1830-97 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: William Carter, U.S. Border Patrol, Immigration and Naturalization Service, 415 I Street, NW., Room 4226, Washington, DC 20536, telephone (202) 514-3072.

SUPPLEMENTARY INFORMATION: In the Fiscal Year 1996 Appropriations Act for the Department of Justice, Congress required the Service to establish a computer lane facilitation pilot program at the San Clemente, California, checkpoint. See section 101 of Public Law 104- 134 (April 26, 1996). The Service has determined that the Pre-enrolled Access Lane (PAL) program implemented by this interim rule is the best means of complying with this congressional mandate.

    Under the PAL program, the Service may establish lanes at checkpoints for pre-enrolled travelers, the use of which is restricted to enrolled participants who the Service has determined present a low risk of using the lane for unlawful purposes (and to passengers of such enrolled participants). A person who wishes to become an enrolled participant in the PAL program or to register a vehicle for use in the lane will be required to apply to the Service by using Form I-866- Application Checkpoint Pre-enrolled A ccess Lane. This program is wholly voluntary, and failure to apply or denial of an application for the PAL program in no way prevents a person from passing through any checkpoint in the regular traffic lanes.

    Prior to approval of any vehicle for use in the lane, the Service may inspect such vehicle to ensure that it does not present evidence of having been used or prepared to be used to smuggle aliens or drugs. An electronic transmitter or other identifier may be affixed to vehicles authorized for use in the lane. Prior to enrolling applicants to participate in the PAL program, the Service will conduct appropriate checks of immigration, law enforcement, and criminal history information records and databases for information related to the applicant and any vehicle he or she wishes to register. This check may include submitting the applicant's fingerprints to appropriate law enforcement agencies.

    An authorized vehicle may not have access to a Pre-enrolled Access Lane unless at least one person in the vehicle is an enrolled participant in the PAL program and has specific authorization to use that vehicle in the PAL. When using the PAL, an enrolled participant may carry passengers who are not enrolled in the PAL, so long as all passengers are United States citizens, lawful permanent residents of the United States or rightful holders of valid nonimmigrant United States visas. If an authorized vehicle i s sold, stolen, or otherwise disposed of, authorization to use that vehicle in the lane is automatically revoked. Within 24 hours of when an authorized vehicle is stolen, or within 7 days of when such vehicle is sold, or otherwise disposed of or the license plates are changed, enrolled participants must give, in person or by fax, written notice of such occurrence to the PAL enrollment center at which their application was filed. If a vehicle is sold or otherwise disposed of, it is the responsibility of the enrolled participant to remove or obliterate any identifying decal or other authorization for participation in the PAL program before or at the time of sale or disposal unless otherwise notified by the Service. If the Service installs an electronic transmitter or similar device on the vehicle, the enrolled participant must have that device removed by the Service at the PAL enrollment center.

    Failure to comply with the terms and conditions established for use of the lane may result in revocation of the privilege to participate in the program. Unless revocation is automatic, the Service will give written notice of revocation to the enrolled PAL participant or mail it to his or her last known address. However, written notification is not necessary prior to revocation of the privilege to participate in the PAL program. All vehicles approved for use in the lane remain subject to being stopped and oc cupants questioned during use of the lane in order to ensure compliance with immigration and other applicable laws and the conditions for use of the PAL.

    Factors which the Service will consider in determining the eligibility of an applicant to enroll in the Pre-enrolled Access Lane program include, but are not limited to, lawful presence in the United States, criminal history and/or evidence of criminality, employment, residency, prior immigration history, possession of a valid driver's license, vehicle type, registration, and inspection.

Good Cause Exception

    The Service's implementation of this rule as an interim rule with provisions for post-promulgation public comment is based upon the "good cause" exceptions to the normal notice and comment requirement found at 5 U.S.C. 553 (b)(3)(B) and (d)(3). Immediate implementation of this interim rule without prior notice and comment is necessary because of a statutory requirement. In the Fiscal Year 1996 Appropriations Act, Congress mandated that the Service establish a commuter lane facilitation program at the San Cl emente checkpoint within 90 days of the passage of that Act. See section 101 of Public Law 104-134 (April 26, 1996). While the INS did initiate a commuter facilitation pilot program by the statutory deadline, the implementation of a fully operational commuter lane facilitation program has required the construction of an additional lane at the checkpoint as well as the development of a new system for enrolling and monitoring individuals and vehicles who will use the lane. Both construction and system devel opment have required considerable time. In communications between members of Congress and the Attorney General, it was agreed that the newly constructed dedicated commuter lane (referred to in this rule as the PAL) would be in operation by June of 1997. In order to have a lane operational by that date, the Service has determined that it needs to begin enrolling participants in April of 1997, and the Service cannot begin the enrollment process until this rule becomes effective. Compliance with the normal no tice and comment period would, therefore, make it impossible for the Service to properly implement the PAL within the time agreed upon with Congress and could put the Service in violation of an express congressional mandate.

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 expenditious passage through a checkpoint. Participation in the PAL progr am is voluntary.

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

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 12988

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

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 $ 100,000,000 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 § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $ 100,000,000 or more, a major increase in costs 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.

    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.