Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Rules and Regulations 16039

date of OPM’s written request unless a

different time limit is specified by OPM

in its request.

(4) Within 90 days after receipt of the

request for review, OPM will either:

(i) Give a written notice of its decision

to the covered individual and the

carrier; or

(ii) Notify the individual of the status

of the review. If OPM does not receive

requested evidence within 15 days after

expiration of the applicable time limit

in paragraph (e)(3) of this section, OPM

may make its decision based solely on

information available to it at that time

and give a written notice of its decision

to the covered individual and to the

carrier.

4. Section 890.107 is revised to read

as follows:

§ 890.107 Court Review.

(a) A suit to compel enrollment under

§ 890.102 of this part must be brought

against the employing office that made

the enrollment decision.

(b) A suit to review the legality of

OPM’s regulations under this part must

be brought against the Office of

Personnel Management.

(c) Federal Employees Health Benefits

(FEHB) carriers resolve FEHB claims

under authority of State statute (chapter

89, title 5, United States Code). A

covered individual may seek judicial

review of OPM’s final action on the

denial of a health benefits claim. A legal

action to review final action by OPM

involving such denial of health benefits

must be brought against OPM. The

recovery in such a suit will be limited

to the amount of benefits in dispute.

(d) An action under paragraph (c) of

this section to recover on a claim for

health benefits:

(1) May not be brought prior to

exhaustion of the administrative

remedies provided in § 890.105;

(2) May not be brought later than

December 31 of the 3rd year after the

year in which the care or service was

provided; and

(3) Will be limited to the record that

was before OPM when it rendered its

decision affirming the carrier’s denial of

benefits.

[FR Doc. 95–7793 Filed 3–28–95; 8:45 am]

BILLING CODE 6325–01–M

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.

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
16040 Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Rules and Regulations

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 prescreen 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 bridgecrossing 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
Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Rules and Regulations 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, § 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:

§ 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 § 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
16042 Federal Register / Vol. 60, No. 60 / Wednesday, March 29, 1995 / Rules and Regulations

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

8 CFR Parts 235 and 242

[INS No. 1616–93]

RIN 1115–AD50

List of Countries for Which Privilege of

Communication is Allowed

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This rule revises the list of

countries with which the United States

has existing treaties requiring

immediate communication with

appropriate consular or diplomatic

officers whenever nationals of those

countries are detained in exclusion or

expulsion proceedings. This rule is

necessary to ensure that foreign

nationals who are arrested by

immigration officers in the United

States will be aware of their privilege of

communication with the consular or

diplomatic officers of the country of his

or her nationality. It is also necessary

that immigration officers be kept abreast

of changes of United States treaty

obligations that require mandatory

notification to certain countries when

nationals of those countries are arrested.

When aliens are detained by the

Immigration and Naturalization Service

(INS) officers at ports of entry, consular

or diplomatic officers must be notified

as presently required in 8 CFR 242 for

deportation proceedings. Therefore, a

addition will be made at 8 CFR 235 to

make clear that the notification

requirement applies equally in

exclusion proceedings. This revision

will have an impact on ensuring that the

treaty rights of foreign nationals are

protected.

DATES: This interim rule is effective

March 29, 1995. Written comments

must be submitted on or before May 30,

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 Attention: Public

Comment Clerk. To ensure proper

handling please reference INS number

1616–93 on your correspondence.

Comments are available for public

inspection at the above address by

calling (202) 514–3038 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Ira L. Frank, Senior Special Agent,

Investigations Division, Immigration

and Naturalization Service, 425 I Street

NW., Room 1000, Washington, DC

20536, telephone (202) 514–0747.

SUPPLEMENTARY INFORMATION: A number

of changes are necessary to revise 8 CFR

242.2(g), the regulation that ensures

immediate communication with

appropriate consular or diplomatic

officers whenever nationals of particular

countries with which we have existing

treaties are detained in exclusion or

expulsion proceedings. A cross

reference is being made to part 235 by

adding a subsection, 235.3(g), to make

clear that the mandatory notification

requirement applies equally to

exclusion and deportation proceedings.

Three countries, Malawi, Kenya, and

Uganda are being removed from the list

of countries for which consular

notification is mandatory. The United

States-United Kingdom consular

convention which made notification

mandatory is no longer in effect for

these three countries, although it was in

effect for a time after they became

independent.

Other countries removed from the

mandatory notification list include

Algeria, Argentina, Australia, Austria,

Belgium, Bolivia, Brazil, Cameroon,

Canada, Chile, Colombia, Cuba,

Czechoslovakia, Denmark, Dominican

Republic, Ecuador, Egypt, El Salvador,

France, Gabon, Federal Republic of

Germany, Guatemala, Holy See,

Honduras, Iraq, Ireland, Italy, Laos,

Lesotho, Liechtenstein, Luxembourg,

Madagascar, Mali, Mexico, Nepal, New

Zealand, Niger, Oman, Pakistan,

Panama, Paraguay, Portugal, Republic of

China, Rwanda, Senegal, Somalia,

Spain, Sweden, Switzerland, Tunisia,

Uruguay, Upper Volta, Venezuela,

Republic of Viet-Nam, and Yugoslavia.

These countries have been removed

because the Service has been informed

by the Department of State that there

has never been an obligation required by

treaty to provide mandatory

notification. Henceforth, the listing will

only reflect those countries that do have

treaties with the United States.

The disintegration of the Union of

Soviet Socialist Republics (USSR)

causes us to list the twelve Soviet

successor states separately. The twelve

states are: Armenia, Azerbaijan, Belarus,

Georgia, Kazakhstan, Kyrgyzstan,

Moldova, the Russian Federation,

Tajikistan, Turkmenistan, Ukraine, and

Uzbekistan.

We are also, however, listing ‘‘Union

of Soviet Socialist Republics (USSR),’’

with a footnote listing the twelve

successor states and noting that they

continue to be covered by the

mandatory notice provision of the

United States-USSR consular

convention. Including ‘‘USSR’’ with a

footnote as a safeguard is advisable for

the time being, since some nationals of

the successor states may still be

travelling on USSR passports.

Due to the break up of

Czechoslovakia, the Czech and Slovak

Republics will be listed separately as

mandatory notification countries. The

consular convention with

Czechoslovakia, which contained a

mandatory notification provision,

remains in force with respect to both

new countries.

Other countries being added to the

mandatory notification list as a result of

treaties with the United States include

Albania, Antigua, Bahamas, Barbados,

Belize, Brunei, Bulgaria, Dominica,

Grenada, Kiribati, Mongolia, St. Kitts/

Nevis, St. Lucia, St. Vincent/

Grenadines, Seychelles, South Korea,

and Tuvalu.

The Service’s implementation of this

rule as an interim rule, with provision

for post-promulgation public comment,

is based upon the ‘‘good cause’’

exception found at 5 U.S.C. 553(d)(3).

The reasons and the necessity for

immediate implementation of this

interim rule are as follows: The treaties

to which the United States is a signatory

require immediate communication with

appropriate consular or diplomatic

officers whenever nationals of particular

countries are detained in exclusion or

expulsion proceedings. Accordingly,

implementation of this requirement

cannot be delayed without the United

States being in violation of its treaty

obligations.

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