235.7—Automated inspection services.

(a) PORTPASS Program— (1) Definitions— 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 § 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 crossers;

(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 functions.

(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 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 application.

(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 § 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 § 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 inspection.

(xi) Applications approved by the Service will entitle the applicant to seek entry via a designated PORTPASS Program POE for a period of 2 years 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 technology.

(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 for 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. § 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 PORTPASS.

(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.

Code of Federal Regulations

[61 FR 53831, Oct. 16, 1996. Redesignated at 62 FR 10358, Mar. 6, 1997; 68 FR 10145, Mar. 4, 2003]