[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Rules and Regulations]
[Pages 23643-23657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11481]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 63, No. 83 / Thursday, April 30, 1998 / Rules
and Regulations
[[Page 23643]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 273
[INS No. 1697-95]
RIN 1115-AD97
Screening Requirements of Carriers
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Immigration and Naturalization Service
(the Service) regulations by establishing procedures carriers must
undertake for the proper screening of passengers at the ports of
embarkation to become eligible for a reduction, refund, or waiver of a
fine imposed under section 273 of the Immigration and Nationality Act
(the Act). This rule is necessary to enable the Service to reduce,
refund, or waive fines for carriers that have taken appropriate
measures to properly screen passengers being transported to the United
States, while continuing to impose financial penalties against those
carriers that fail to properly screen passengers.
DATES: This rule is effective June 1, 1998. The supplementary
information portion of this final rule requires carriers whose
Performance Level (PL) is not at or better than the Acceptable
Performance Level (APL), to submit evidence to the Service so that they
may receive an automatic fine reduction of 25 percent, if certain
conditions are met. Since this evidence is considered an information
collection which is subject to review by the Office of Management and
Budget (OMB) under the Paperwork Reductions Act (PRA), the evidence
cannot be submitted until OMB approves the information collection
requirements. The Service will publish a notice in the Federal Register
once OMB approval of the information collection is obtained.
FOR FURTHER INFORMATION CONTACT:
Robert F. Hutnick, Assistant Chief Inspector, Immigration and
Naturalization Service, 425 I Street, NW., Room 4064, Washington, DC
20536, telephone number (202) 616-7499.
SUPPLEMENTARY INFORMATION: The imposition of administrative fines has
long been an important tool in enforcing the United States immigration
laws and safeguarding its borders. Both section 273 of the Act and
prior law reflect a similar Congressional purpose to compel carriers,
under pain of penalties, to ensure enforcement of, and compliance with,
certain provisions of the immigration laws. In enacting both section
273 of the Act of 1952 and section 16 of the Immigration Act of 1924
(the precursor to section 273(a) of the Act of 1952), Congress intended
to make the carrier ensure compliance with the requirements of the law.
The carriers have long sought relief from fines by having the Service
consider extenuating circumstances related to the imposition of fines.
Prior to the enactment of section 209(a)(6) of the Immigration and
Nationality Technical Corrections Act of 1994, Pub. L. 103-416, dated
October 25, 1994, it was the Service's policy not to reduce, refund, or
waive fines imposed under section 273 of the Act except pursuant to
section 273(c) of the Act where the carrier could, to the satisfaction
of the Attorney General, demonstrate that it did not know, and could
not have ascertained by the exercise of reasonable diligence, that the
individual transported was an alien and that a valid passport or visa
was required.
This final rule provides procedures carriers must undertake for the
proper screening of aliens at the port of embarkation to become
eligible for reduction, refund, or waiver of a fine imposed under
section 273 of the Act. Nevertheless, it is important to note that
these are voluntary procedures for carriers. This final rule further
prescribes conditions the Service will consider before reducing,
refunding, or waiving a fine. Of primary importance will be the
carrier's performance in screening passengers. The Service will
determine a carrier's performance record by analyzing statistics on the
number of improperly documented nonimmigrant passengers transported to
the United States by each carrier compared to the total number of
documented nonimmigrant passengers transported.
This final rule will enable the Service to reduce, refund, or waive
a fine imposed under section 273 of the Act for a carrier that
demonstrates successful screening procedures by achieving satisfactory
performance in the transportation of properly documented nonimmigrants
to the United States. This will enable the Service to reduce, refund,
or waive fines for carriers that have taken appropriate measures to
properly screen passengers while continuing to impose financial
penalties on carriers that fail to properly screen passengers. It is
important to note that the final rule does not impose any additional
requirements on the carriers, and that carriers are free to observe
current procedures both in respect to screening their passengers and
filing their defenses.
The Service wishes to maintain flexibility in assessing the success
of a carrier's screening procedures. The Service has devised an initial
means of measurement, as set forth in the following paragraphs, but
will re-examine this strategy if such re-examination is appropriate.
The Service is committed to working with the carriers and will consult
with them on any contemplated changes in the method of assessment.
Under the methodology, a carrier's performance level (PL) will be
determined by taking the number of each carrier's nonimmigrant
violations of section 273 of the Act for a fiscal year and dividing
this by the number of documented nonimmigrants transported by the
carrier for the same fiscal year and multiplying the result by 1,000. A
carrier's PL will be calculated annually.
The Service shall establish an Acceptable Performance Level (APL),
based on statistical analysis of the performance of all carriers, as a
means of evaluating whether the carrier has successfully screened all
of its passengers in accordance with 8 CFR 273.3. The APL shall be
determined by taking the total number of all carrier nonimmigrant
violations of section 273 of the Act for a fiscal year and dividing
this by the total number of documented nonimmigrants transported by all
[[Page 23644]]
carriers for the same fiscal year and multiplying the result by 1,000.
The Service shall establish a Second Acceptable Performance Level
(APL2), based on statistical analysis of the performance of all
carriers at or better than the APL, as a means of further evaluating
carrier success in screening its passengers in accordance with 8 CFR
273.3. Using carrier statistics for only those carriers which are at or
better than the APL, the APL2 shall be determined by taking the total
number of these carriers' nonimmigrant violations of section 273 of the
Act for a fiscal year and dividing by the total number of documented
nonimmigrants transported by these carriers for the same fiscal year
and multiplying the result by 1,000.
Carriers which have achieved a PL at or better than the APL, as
determined by the Service, will be eligible for a 25 percent fine
reduction in the amount of any fine covered by this provision if the
carrier applies for a reduction, refund, or waiver of fines according
to the procedures listed in 8 CFR 280.12 and 8 CFR 280.51. Carriers
which have achieved a PL at or better than the APL2, as determined by
the Service, will be eligible for a 50 percent fine reduction in the
amount of any fine covered by this provision if the carrier applies for
a reduction, refund, or waiver of fines according to the procedures
listed in 8 CFR 280.12 and 8 CFR 280.51. Additional factors the Service
will consider in determining whether the Service will reduce, refund,
or waive a fine under section 273 of the Act and the amount of such
reduction, refund, or waiver are: (1) The carrier's history of fines
violations, (2) the carriers payment record for fines, liquidated
damages, and user fees, and (3) the existence of any extenuating
circumstances. In the future, the Service may consider other factors in
evaluating carrier performance including participation in data sharing
initiatives or evaluation of a carrier's performance by particular
port(s) of embarkation and/or route(s) to determine carrier fines
mitigation levels.
To maintain flexibility in determining the success of a carrier's
screening procedures, the Service will not include in the regulation
the methodology it will use in determining a carrier's PL, the APL, or
the APL2 or the fines reduction percentage levels. Both the methodology
used to determine the success of a carrier's screening procedures and
the fines reduction percentage will be periodically revisited by the
Service to maximize carrier cooperation and vigilance in their
screening procedures. The Service shall compute all carrier PLs, the
APL, and the APL2 periodically but may elect to use the APL or APL2
from a previous period when determining carrier fines reduction,
refunds, or waivers for a specific period(s). While the individual
carrier's PL will be computed at least annually, the benchmark APL and
APL2 may apply to a longer period. Initially the Service may set the
benchmark criteria for 3 years. If this is done, it will be done across
the board for all carriers. The Service will publish any significant
adverse changes regarding fines reduction in the Federal Register in
accordance with the Administrative Procedure Act (APA) prior to
implementation. Maintaining a flexible approach allows the Service to
work in partnership with the carriers toward the mutual goal of
decreasing the number of improperly documented nonimmigrants
transported to the United States.
Carriers may elect to sign a Memorandum of Understanding (MOU) with
the Service for the broader application of the reduction, refund, or
waiver of fines imposed under section 273 of the Act by agreeing to
perform additional measures to intercept improperly documented aliens
at ports of embarkation to the United States. The MOU is attached as an
appendix to this final rule. Carriers performing these additional
measures to the satisfaction of the Commissioner would be eligible for
automatic fine reductions, refunds, or waivers as prescribed in the
MOU. Carriers signatory to the MOU with the Service would be eligible
for an automatic fine reduction of 25 or 50 percent depending on
whether a carrier's PL is at or better than the APL or APL2
respectively, as determined by the Service. Carriers not signatory to
an MOU would not be eligible for automatic fine reductions, refunds, or
waivers. Nevertheless, this rule does not preclude any carrier, whether
or not signatory to the MOU, from requesting fines reduction, refund,
or waiver according to the procedures listed in 8 CFR 280.12 and 8 CFR
280.51. Even if the carrier's PL is not at or better than the APL, the
carrier may receive an automatic fine reduction of 25 percent, if it
meets certain conditions, including: (1) It is signatory to the MOU,
which is predicated on the carrier submitting evidence that it has
taken extensive measures to prevent the transport of improperly
documented passengers to the United States, and; (2) it is in
compliance with the MOU. This evidence shall be submitted to the
Assistant Commissioner for Inspections for consideration. Evidence may
include, but is not limited to, the following: (a) Information
regarding the carrier's document screening training program, including
attendance of the carrier's personnel in any Service, Department of
State, or other training programs, the number of employees trained, and
a description of the training program; (b) information regarding the
date and number of improperly documented aliens intercepted by the
carrier at the port(s) of embarkation, including, but not limited to,
the alien's name, date of birth, passport nationality, passport number,
other travel document information, reason boarding was refused, and
port of embarkation, unless not permitted by local law or local
competent authority. In such instances, the carrier shall notify the
Service of this prohibition and shall propose alternative means for
meeting this objective; and, (c) any other evidence to demonstrate the
carrier's efforts to properly screen passengers destined for the United
States; and, (3) it appears to the satisfaction of the Assistant
Commissioner for Inspections that other Service data and information,
including a carrier's PL, indicate the carrier has demonstrated
improvement in the screening of its passengers. The evidence that must
be submitted to the Service by a carrier whose PL is not at or better
than the APL, is considered an information collection which is covered
under the Paperwork Reduction Act (PRA). Accordingly, those carriers
whose PL is below the APL cannot submit evidence to the Service until
the information collection is approved by the Office of Management and
Budget (OMB) in accordance with the PRA. Once the Service receives
approval from OMB on the information collection, it will notify the
public by PRA notice in the Federal Register that the information
collection is approved.
The levels for fines mitigation are loosely based on the Canadian
fines mitigation system. Based on performance levels of the carriers,
the Canadian system provides for an automatic fines reduction of 25
percent upon the carrier signing an MOU with the Canadian Government.
Through attaining performance standards established in the Canadian
MOU, carriers can earn further reductions of 50, 75, or 100 percent of
their fines.
This rule further clarifies fines imposed under section 273(d) of
the Act by stating that provisions of section 273(e) of the Act do not
apply to any fine imposed under section 243(c)(1)(B) of the Act, prior
section 273(d) of the Act in effect until April 1, 1997, nor under any
provisions other than sections 273(a)(1) and 273(b) of the Act.
On June 10, 1996, at 61 FR 29323-29327, the Service published a
proposed
[[Page 23645]]
rule with requests for comments in the Federal Register, in order to
comply with section 209(a)(6) of the Immigration and Nationality
Technical Corrections Act of 1994, which permitted the Service to
mitigate fines in certain cases where the carrier demonstrates that it
had screened all passengers in accordance with regulations prescribed
by the Attorney General or if circumstances exist that the Attorney
General determines would justify such mitigation. Interested persons
were invited to submit written comments on or before August 9, 1996.
The following is a discussion of those comments received by the Service
and the Service's response.
Discussion of Comments on the Proposed Rule
The Service received a total of 15 written responses containing
comments on the proposed rule. The respondents were classified as
follows:
Fourteen respondents commented that the proposed methodology by
which the Service will calculate the carrier's individual performance
level (PL) and the acceptable performance levels (APL and APL2) are not
accurate measures of a carrier performance. Many reasons were cited as
follows:
One objection to the methodology was that the carriers were seen as
being ``pitted'' against one another instead of being rated on
individual merit. The Service does not intend for carriers to compete
against each other. The Service does intend to use the APL as a
measurement of individual carrier performance. To respond to several
commenters on the recalculation of the PL, APL, and APL2 figures, the
PL will be calculated annually for individual carriers. The 1994 APL
and APL2 will be used as the standard for the past fines being held in
abeyance and for the fiscal years 1995-1997 and possibly longer, based
on Service discretion. Individual carrier performance is compared
against this overall average performance level of all carriers (APL and
APL2). Carriers will be rewarded by the mitigation of carrier fines of
25 or 50 percent, depending on a carrier's PL as compared to this
overall average. Individual statistical performance needs a baseline to
measure performance. Therefore, the Service has used the overall
average of all carriers to create the necessary baseline.
Some commenters objected to FY 94 being used as the baseline. The
Service chose FY 94 since it was the first year in which the Service
was able to obtain the total number of documented nonimmigrant
passengers per carrier from the Form I-92, Aircraft/Vessel Report.
Prior to FY 94, this data was discarded.
Several commenters claimed that requiring carriers to meet or
exceed an ``arbitrary'' APL is inconsistent with the intent of Congress
and is unrelated to the basic concept of mitigation. Commenters argued
that Congress ``intended'' that section 273(e) would result in complete
relief from the fine procedures, so that if a carrier satisfies the
screening requirements, the Service would be required to reduce the
fine to zero. These commenters believe that the proposed rule is
contrary to this ``intent'' because the proposed rule permits the
Service to reduce the fine by a specified amount that is less than 100
percent. The Service disagrees with the commenters' claims about
Congressional ``intent.'' The intent of any statute is to be found in
the text of the statute itself. See Mallard v. U.S. Dist. Ct. for the
S. Dist. of Iowa, 490 U.S. 296, 300 [1989]; INS v. Phinpathya, 464 U.S.
183, 189 [1984]. Section 273(e) of the Act provides that the Attorney
General ``may * * * reduce[], refund[], or waive[]'' a fine under
section 273(a) and (b), ``under such regulations as the Attorney
General shall prescribe'' [emphasis added]. Thus, the statute entrusts
to the Attorney General's discretion the authority to determine under
what circumstances the Service should reduce, refund, or mitigate a
fine under section 273(a) and (b). Nothing in section 273(e) of the Act
requires the Service, in the exercise of the Attorney General's
discretion, either to reduce the fine to zero in every case or to leave
the fine at the full statutory amount. Nor does the existing
legislative history support the commenters' claims about the ``intent''
of section 273(e) of the Act. See 140 Cong. Rec. S14400-S14405 [daily
ed. October 6, 1994]; id., H9272-H9281 [daily ed. September 20, 1994].
The Service contends that section 273, read as a whole, provides both a
``positive'' and a ``negative'' incentive for a carrier to ensure that
it permits only aliens with proper documents to board airplanes and
other vessels bound for the United States. The ``negative'' incentive
is the risk of incurring the statutory fine. The ``positive'' incentive
is that the amount of the fine may be reduced, if the carrier has acted
reasonably in its efforts to screen passengers. The carrier
demonstrates that it has properly screened its passengers by having a
PL at or better than the APL as determined by the Service. Measuring
the performance of carriers is basic to the concept of mitigation. The
policy of imposing a monetary penalty, but mitigating the amount of the
penalty if a carrier has taken appropriate steps to screen passengers
is a reasonable way to implement section 273 as a whole. This policy is
well within the authority of the Attorney General to promulgate
regulations for the administration of the immigration laws.
It must be emphasized that the Service policy of strictly enforcing
the fine provisions of section 273 of the Act in appropriate cases is a
continuation of a more than 70-year-old policy of carrying out
Congress' intent to hold carriers responsible for passengers they have
transported to the United States. The Board of Immigration Appeals (the
Board) and the courts have consistently held that carriers must
exercise reasonable diligence in boarding their passengers for
transport to the United States and are subject to administrative fines
for failure to do so, e.g., Matter of Eastern Airlines, Inc., Flight
#798, 20 I&N Dec. 57 (BIA 1989); Matter of M/V Guadalupe, 13 I&N Dec.
67 (BIA 1968); New York & Porto Rico S.S. Co. v. United States, 66 F.2d
523, 525 (2d Cir. 1933).
The imposition of administrative fines in appropriate cases has
long been an important tool in enforcing our immigration laws and
safeguarding our borders. In enacting both section 273 of the Act of
1952 as well as section 16 of the Immigration Act of 1924, the
precursor of section 273, Congress intended to make the carrier ensure
compliance with the requirements of the respective statutory
provisions. See Joint Hearings on the Revision of Immigration,
Naturalization, and Nationality Laws, Senate and House Subcommittees on
the Judiciary, Testimony of Stuart G. Tipton, General Counsel, Air
Transport Association of America at p. 294 (March 14, 1951); Matter of
M/V ``Runaway'', 18 I&N Dec. at 128 (citing section 273 cases). Indeed,
in enacting section 273 of the Act, Congress strengthened the previous
penalty provisions, which only applied to carriers unlawfully
transporting immigrants to this country, to include the unlawful
transport of nonimmigrants as well. See Matter of S.S. Greystroke
Castle and M/V Western Queen, 6 I&N Dec. 112, 114-15 (BIA, AG 1954);
Legal Opinion of the INS General Counsel, 56336/273a at 6 (Sept. 3,
1953). The intent of Congress embodied in sections 273(e) is to reward
carriers which properly screen their passengers prior to coming to the
United States. By determining a carrier's PL and rewarding carriers
with a satisfactory PL through fines mitigation, the Service fulfills
the intent of Congress.
[[Page 23646]]
One commenter requested that ``[t]he Service should expressly agree
that it will not initiate legislation to increase the amount of the
penalty for violation of [section 273 of the Act] for at least five
years.'' As stated previously, the Service views the fines program as
an important tool in enforcing our immigration laws by imposing
financial penalties on those carriers which fail to properly screen
passengers. The Executive Branch has a constitutional duty to recommend
legislation that the Executive Branch considers necessary or
appropriate. Therefore, the Service does not agree with the commenter's
request. The Service does note, however, that the Service is required
by statute to adjust civil administrative fines by regulation to
account for the effect of inflation. Federal Civil Penalty Inflation
Adjustment Act of 1990, Sec. 4, as amended by Debt Collection
Improvement Act of 1996, Pub. L. No. 104-134, ch. 10,
Sec. 31001(s)(1)(A), 110 Stat. 1321, ______ (1996).
Some commenters claimed that the APL structure encourages the
continuance of the ``adversarial relationship'' between the carriers
and the Service. On the contrary, carrier organizations and the Service
have conducted extensive dialogue on the formulation of this rule. The
past collaboration between the carrier organizations and the Service
led to the near-completion of the Carrier Cooperative Agreement. The
Agreement was the precursor to the present fine mitigation regulation
language and corresponding MOU. The Agreement had the endorsement of
the major carrier organizations. The Service also actively enlisted
carrier participation in the writing of the fines mitigation proposed
rule. Meetings were held with the carrier organizations on several
occasions to discuss the fines mitigation legislation and the mutual
concerns of the Service and the carriers. The Service maintains a
strong customer orientation within the boundaries of its mission as
evidenced by the National Performance Review (NPR) initiatives at the
major Ports-of-Entry. The Service has actively involved the carriers,
as major stakeholders, the re-engineering of the inspection process.
The Service values its cooperative relationship with the carriers and
their parent organizations. The Service believes the cooperative nature
of the MOU to be signed with the carriers will lead to an even closer,
mutually beneficial relationship. The ultimate customers, the American
people and bona fide passengers, are better served by the carriers and
the Service by preventing the transportation of improperly documented
aliens to the United States. While none of these considerations
eliminates the tension inherent in the relationship between a
regulatory agency and the entities subject to regulation, they do
bespeak as cooperative a relationship as possible.
Some commenters claimed that the variables used in calculating the
PL, APL, and APL2 are not clearly defined while other variables, such
as carrier size, market characteristics, risk factors at ports of
embarkation, passenger nationalities, local government laws, etc., are
not factored in the calculations. The Service contents the factors are
clearly defined. The Service will calculate a carrier's PL by dividing
the number of each carrier's violations of section 273 of the Act for a
fiscal year by the number of documented nonimmigrants transported by
the carrier and multiplying the result by 1,000. This calculation will
include only those aliens who are documented by the completion of an I-
94 and statistically recorded on Form I-92. This calculation does not
include violations for improperly documented first-time immigrants or
lawful permanent residents, Canadian citizens, lawful residents of
Canada, and any other class of nonimmigrant aliens not required to
complete the Form I-94 as enumerated in 8 CFR 231.1. In determining the
number of passengers transported to the United States by each carrier,
the passengers brought from contiguous territory have been omitted from
the total number of passengers transported as requested by several
commenters to the rule. They correctly pointed out that to include
these numbers when section 273 of the Act specifically excludes fines
levied for transporting improperly documented passengers from
contiguous territory would unfairly alter the PL, APL, and APL2
calculations. The APL will be calculated by taking the total number of
all carrier violations of section 273 of the Act for a fiscal year and
dividing this by the total number of documented nonimmigrants
transported by all carriers for the same fiscal year and multiplying
the result by 1,000. The same groups of aliens which have been omitted
from the calculation of a carrier's PL have also been omitted for the
calculation of the APL. The second Acceptable Performance Level (APL2)
will be based on statistical analysis of the performance of all
carriers at or better than the APL. Using carrier statistics only for
those carriers which are at or better than the APL, the APL2 shall be
determined by taking the total number of these carrier violations of
section 273 of the Act for a fiscal year and dividing by the total
number of documented nonimmigrants transported by these carriers for
the same fiscal year and multiplying the result by 1,000. Likewise, the
same groups of aliens which have been omitted from the calculation of a
carrier's PL and APL have also been omitted for the calculation of the
APL2. Carrier size is therefore inconsequential to the determination of
a carrier's PL. The three measurements show the number of violations
under section 273 of the Act per 1,000 passengers transported. This
enables the Service to even the playing field and determine the carrier
performance of small and large carriers per 1,000 passengers. Other
variables, including market characteristics, risk factors at ports of
embarkation, passenger nationalities, and local government laws, have
not been factored into these numbers. Nevertheless, even if a carrier's
PL is not at or better than the APL, due to these variables, the
carrier may receive an automatic 25 percent reduction in fines, if it
meets certain conditions, including being signatory to the MOU
predicated on the submission of evidence demonstrating that the carrier
has taken extensive measures to prevent the transport of improperly
documented passengers to the United States and remaining in compliance
with the MOU. This evidence must be submitted to the Assistant
Commissioner for Inspections for consideration. Evidence may include,
but is not limited to, the following: (1) Information regarding the
carrier's document screening training program, including attendance of
the carrier's personnel in any Service, Department of State, or other
training programs, the number of employees trained, and a description
of the training program; (2) information regarding the date and number
of improperly documented aliens intercepted by the carrier at the
port(s) of embarkation including, but not limited to, the alien's name,
date of birth, passport nationality, passport number, other travel
document information, reason boarding was refused, and port of
embarkation; and, (3) any other evidence to demonstrate the carrier's
efforts to properly screen passengers destined to the United States.
The Service will consider these variables and Service data in
determining fines mitigation for carriers failing to meet the APL
level. The Service has previously stated in the proposed rule summary
that it may consider other factors in evaluating carrier performance,
including participation in data sharing initiatives or evaluation of a
carrier's performance
[[Page 23647]]
by particular port(s) of embarkation and/or route(s) to determine
carrier fines mitigation levels at a later date as technology improves
and more information is available.
Commenters calculated that only 20 percent of the carriers would be
entitled to any fines mitigation under the Service's methodology. Some
respondents further stated that the rule was deliberately designed to
defeat Congress' intent by making a substantial degree of mitigation
too difficult for a carrier to achieve.
To the contrary, the Service's calculations, upon which the PL,
APL, and APL2 will be determined, show that 41 percent of the carriers
(45 out of 109) will qualify for fines mitigation for fiscal year 1995
based on FY 94 violations. Nineteen (19) percent of the carriers (21
out of 109) achieved a PL at or better than the APL2 and are eligible
for 50 percent fines mitigation and 24 carriers achieved a PL at or
better than the APL and are eligible for 25 percent fines mitigation.
This does not include those carriers which apply for fines mitigation
based on the submission of evidence as described in section 4.13 of the
MOU (See attanchment). For violations in FY 96, the Service plans to
retain the APL2 and APL yardsticks from FY 94 to determine fines
mitigation. Further, 53 percent of the carriers (55 our of 104) are
eligible for fines mitigation in FY 96 based on violations which
occurred in FY 95 using the FY 94 APL yardstick. Thirty-two percent of
the carriers (33 out of 104) are eligible for 50 percent fines
mitigation in FY 96 for having a PL at or better than the FY 94 APL2
yardstick. The Service envisions that cooperation in the sharing of
information regarding fraudulent documents, the training of carrier
agents by the Service's Ports-of Entry officers, carrier consultants,
and overseas officers, and carrier dissemination of this information to
their agents at the ports of embarkation, will continue to lower the
number of improperly documented aliens arriving at United States Ports-
of-Entry. The Service expects that the number of carriers eligible for
fines mitigation to increase for FY 97 and beyond. Carrier interest in
the training of its agents in the immigration laws and regulations of
the United States together with invaluable Service document training
has made the carrier-Service partnership a success.
Several commenters suggested that the Service should increase the
levels of fines mitigation for those carriers who meet the APL and
APL2, including up to 100 percent fines mitigation. Some respondents
suggested having higher levels (for example, APL3 or APL4 levels). The
amount of the fines mitigation, including possible increases to a
higher percentage for violations of section 273 of the Act for carriers
with an exceptional PL, and higher levels of fines mitigation shall be
re-examined by the Service at a later date. The Service is not adverse
to increasing the amount of fines mitigation or having higher levels
providing it is in the interest of the American people to do so.
Several commenters suggested that the Service's methodology in
determining performance levels should be entirely abandoned. They
stated that, if the Service must employ such a method, the calculation
should be made using the carriers' PL median ratio as the APL and
giving fines mitigation to all those carriers whose PL is at or better
than this average. These respondents contend that such a calculation
would be a fairer representation of carrier performance and enable a
significantly higher percentage of carriers to qualify for fines
mitigation. This calculation simply rewards the top 50 percent of the
carriers regardless of the actual performance of the carrier. The
Service's methodology of using the overall PL ratio measures a
carrier's performance against the average performance of all carriers
in FY 94. As stated previously, the Service calculates that 41 percent
of the carriers will be eligible for fines mitigation for FY 95
violations of section 273 of the Act. Fifty-three percent of the
carriers are eligible for fines mitigation in FY 96 based on violation
which occurred in FY 95 using the FY 94 APL. This favorably compares to
the respondents suggestion that 50 percent of the carriers should be
eligible for fines mitigation. The Service believes its methodology is
sound but will re-examine it periodically to ensure that it sets both
an appropriate benchmark by which to measure carrier performance and
provides an appropriate level of relief for those carriers whose
performance exceeds the norm.
Some respondents argue that the results of the calculations would
be dramatically different if all passengers were considered in the
methodology. Section 273 of the Act clearly specifies that the carrier
can only be fined for the transportation of ``* * * (other than from
foreign contiguous territory) any alien [emphasis added] who does not
have a valid passport and an unexpired visa, if a visa is required
under this Act or regulations issued thereunder.'' Therefore the
Service cannot fine carriers for the transportation of United States
(U.S.) citizens or for improperly documented passengers arriving from
contiguous territory and maintains no records on improperly documented
U.S. citizens or improperly documented passengers arriving from
contiguous territory. Since these passengers cannot be fined under
section 273 of the Act, they are omitted from the carrier's passenger
calculations. The reason that some other groups of aliens are not
counted in the passenger number statistics is due to the fact that the
Service cannot collect this information because they are exempt from
presentation of the Form I-94, Arrival/Departure Record. Intending and
returning immigrants and nonimmigrants are not required to complete
Form I-94 and are counted together with U.S. citizens of Form I-92,
Aircraft/Vessel Report. Only the number of documented nonimmigrants
applying for admission to the United States with a Form I-94 is
recorded on Form I-92 by the Service. This information on Form I-92 is
used by the Service to determine the PL, APL, and APL2.
One respondent argued that if the Service will not consider
immigrants in its methodology, then any violations involving those
persons who destroy their documents prior to arriving in the United
States, also known as document-destroyers, should be removed from the
calculations since such aliens are actually intending immigrants. As
previously stated, section 273 of the Act requires valid documentation
for aliens. A document-destroyer is an alien. Therefore, he or she
requires valid documentation. Failure to have valid documentation
requires the Service to impose a fine of $3,000 on the carrier for the
violation. Every improperly documented alien may be an intending
immigrant. The fact remains that the document-destroyers do not possess
the necessary documentation required of immigrants or non-immigrants.
Therefore, the carrier is liable for fines under section 273 of the Act
for bringing an improperly documented alien to the United States. Other
commenters simply requested the Service not to count carrier violations
involving those aliens who destroy their documents on the aircraft. The
Service cannot ignore the fact that the carrier transported a passenger
to the United States without proper documents. Carriers are responsible
for bringing to the United States aliens with proper documentation. It
is unreasonable for the carriers to expect the Service to fail to
impose fines on carriers where no documents are presented or any
evidence that an apparent valid travel document had existed. Thus, the
carrier is responsible for the presentation to the alien to the Service
with proper
[[Page 23648]]
documentation. Nevertheless, the Service has, under the umbrella of
prosecutorial discretion, consistently relieved the carriers of fines
for document-destroyers and aliens possessing fraudulent documentation.
The former group requires the carrier to present evidence that the
alien had documentation whose validity was reasonably apparent at the
time of boarding. The Service allows the carrier to present photocopies
of the documents presented by aliens who have destroyed their
documents. Fines for both groups of improperly documented aliens are
only imposed when those documents are ``blatantly fraudulent.'' Through
the various carrier-Service training programs, the number of document-
destroyers has been significantly reduced during the last 4 years. This
is evidenced by the dramatic decrease in document-destroyers at John F.
Kennedy International Airport from 3,193 document-destroyers in FY 93
to only 582 document-destroyers in FY 96. According to the National
Fines Office (NFO) statistics, the percentage of document-destroyer
violations as compared to the total number of violations under section
273(a) of the Act dropped from 37.4 percent in FY 93 to 26.9 percent in
FY 94, the last year fine statistics were available due to the pending
publication of this final rule.
Some commenters requested that the Service postpone the final rule
because of cases on appeal to the Board on the strict liability of
section 273 of the Act. The commenters pointed out that the Service has
acknowledged in a wire to field offices that the ``* * * carrier[s]
cannot be held liable for the level of forensic or law enforcement
expertise which is the proper province of an official immigration
agency'' (See Service Wire # 1501217/01CE/1213.000 dated December,
1989, entitled ``Stowaways on Commercial Airline Flights'').
Nevertheless, the wire also states that in instances ``[w]here a
document is obviously altered, counterfeit, or expired, or where a
passenger is an obvious impostor, to the extent that any reasonable
person should be able to identify the deficiency, a carrier is required
to refuse boarding as a matter of reasonable diligence. The
photocopying of such a document does not provide protection from
liability to fine.'' In cases involving fraud, the Service has not held
the carrier liable for fines under section 273 of the Act unless the
fraud is sufficiently obvious that a reasonable person exercising
reasonable diligence could have detected the fraud. In FY 94 only six
fraudulent document cases qualified for fines using this standard. The
Service does not consider it proper to await the Board's decision in
any particular case that might now be pending before promulgating this
final rule. The Service must decide a fine case according to the law as
it exists at the time of decision. To the extent that future precedent
decisions of the Board or of the Federal courts continue to refine the
jurisprudence of fine cases, the Service will apply these future
precedents into its own decision-making.
One respondent argues that the calculations should not include
violations where a nonimmigrant was admitted to the United States under
a waiver in accordance with 8 CFR 212.1(g), since the granting of such
a waiver negates the concept of a violation. Waiving an applicant's
documentary requirements subsequent to an arrival is no defense to
liability of the carrier under section 273(a) for bringing to the
United States an alien without a visa, if a visa is required by law or
regulation. See The Peninsular & Occidental Steamship Company v. The
United States, 242 F. 2d 639 (5 Cir. 1957); Matter of SS Florida, 5 I&N
Dec. 85 (BIA 1954); Matter of Plane ``F-BHSQ'', 9 I&N Dec. 595 (BIA
1962). The regulation, 8 CFR 212.1(g) also parallels the granting of a
visa waiver to a lawful permanent resident found in 8 CFR 211.1(b)(3).
The regulation at 8 CFR 212.1(g) was recently amended (See 61 FR
11717, dated March 22, 1996) to read, in part:
Upon a nonimmigrant's application on Form I-193, a district
director at a port of entry may, in an exercise of his or her
discretion, on a case-by-case basis, waive the documentary
requirements, if satisfied that the nonimmigrant cannot present the
required documents because of an unforeseen emergency.
The clarification at 8 CFR 212.1(g) gave the Service the ability to
exercise discretion to admit improperly documented nonimmigrants while
penalizing carriers by the imposition of fines for the bringing of
these aliens to the United States in violation of section 273 of the
Act. Amending the regulation clarified any ambiguity regarding
carriers' liability to ensure the transportation of properly documented
aliens to the United States and to impose penalties for failure to do
so, whether or not a waiver of documents in granted. This is similar to
the granting of individual waivers to lawful permanent residents under
8 CFR 211.1(b)(3), which also does not relieve the carrier of fine
liability under section 273 of the Act. The authority to fine carriers,
even when a waiver of documents is granted, has been the intent of
Congress since the enactment of the Immigration Act of 1924 which
established section 16, the precursor to section 273 of the Immigration
Act of 1952.
Thirteen respondents commented that, although section 273(e) of the
Act states that fines may be ``reduced, refunded or waived,'' the
proposed rule addresses only the reduction of these fines and fails to
address the manner by which fines may be refunded or waived.
Respondents argue that the proposed rule offers no guarantee of an
avenue of full relief form fine liability. Nine respondents commented
that the proposed rule refers to mitigating circumstances and
extenuating circumstances which would warrant mitigation of fines but
that these circumstances are not defined. The respondents state that
the National Fines Office (NFO) should specify the circumstances by
which it will mitigate fines and define the degree of mitigation
applicable to each circumstance.
The term refund as defined by Black's Law Dictatory means ``[t]o
repay or restore; to return money in restitution or repayment.'' For
the purposes of fines, this suggests that a fine has been paid by the
carrier and money is refunded (repaid, restored, or returned) to the
carrier. Under present fines procedures enumerated in 8 CFR 280.12 and
8 CFR 280.51 the Service is required to issue a Form I-79, Notice of
Intent to Fine, and to allow the carrier to present evidence in defense
of the fine and/or seek mitigation or remittance of the fine. In
contested section 273 violations, no refund of money is due because the
Service does not require the payment of a violation prior to the case's
final disposition. If the carrier is signatory to the Service's
proposed fines mitigation Memorandum of Understanding (MOU), the
carrier will receive an automatic reduction of its fine prior to the
Form I-79 being sent to the carrier. Signatory carriers to the MOU may,
in addition, defend the fine in accordance with the procedures outlined
in 8 CFR 280.12 and 8 CFR 280.51 to receive fines mitigation or
remission.
The term waived is defined by Black's to mean ``[t]o abandon, throw
away, renounce, repudiate, or surrender a claim, a privilege, a right,
or the opportunity to take advantage of some defect, irregularity, or
wrong. To give up right or claim voluntarily.'' The respondents fail to
consider the entire section of 273(e) added by Congress. Section 273(e)
of the Act reads, in its entirety:
[[Page 23649]]
(e) A fine under this section may be reduced, refunded, or waived
under such regulations as the Attorney General shall prescribe in cases
in which--
(1) the carrier demonstrates that it had screened all passengers on
the vessel or aircraft in accordance with procedures prescribed by the
Attorney General, or
(2) circumstances exist that the Attorney General determines would
justify such reduction, refund, or waiver.
The respondents omitted the line ``* * * under such regulations as the
Attorney General shall prescribe * * *.''
In addition to the fines mitigation available to carriers under the
Service's policy of performance levels, some mitigating circumstances
will warrant a further reduction of 25 percent. Some extenuating
circumstances will result in a 100 percent waiver of the fine. These
circumstances will not be part of the regulation; however, some of the
mitigating and extenuating circumstances under which the Service will
either mitigate or waive these penalties are listed in the following
paragraphs. It is recommended that carriers defend fines cases in which
the carrier believes circumstances exist that would warrant further
mitigation or waiver of the fine. These cases will be handled on a
case-by-case basis. Due to changes in technology and unforeseen
circumstances, this list is not a complete one and additions or
deletions to it may become necessary. Though the Service contends that
section 273(e) of the Act does not require the Service to provide full
relief from fines, the Service has on occasion exercised its
prosecutorial discretion to de facto ``waive'' a fine. The Service now
has the statutory authority to waive fines if extenuating circumstances
exist and will consider these circumstances on a case-by-case basis.
Such circumstances may include, but are not limited to, the following
situations:
(a) Canadian national (no visa required) not in possession of their
Alien Registration Receipt Card (ARC), Form I-551;
(b) Alien who has been rescued at sea;
(c) Documented evidence of a United States Consulate or Service
officer providing incorrect information to the carrier resulting in the
transportation of an improperly documented alien;
(d) Lawful permanent resident (LPR) who presents self to the
carrier as a Visa Waiver Pilot Program (VWPP) applicant and who is in
possession of a return ticket indicating a stay of less than 90 days in
the United States;
(e) Lawful permanent resident whose Alien Documentation,
Identification, and Telecommunication (ADIT) stamp has no expiration
date or the expiration date is placed underneath the ADIT stamp;
(f) Nonimmigrant in possession of a one-or-two entry nonimmigrant
visa where the previous Service admission stamp is not on the visa or
facing passport page;
(g) Alien arriving on a vessel or aircraft landing for emergent
reasons and requiring an unscheduled landing in the United States;
(h) Alien arriving on a United States Government chartered aircraft
or vessel;
(i) Nonimmigrant in possession of a machine-readable Canadian
Border Crossing Card (BCC) without notation indicating it is valid for
crossing the United States-Canadian border;
(j) Lawful permanent resident without Form I-551 and who is only in
transit through the United States; and,
(k) Alien not in possession of proper documentation but where the
carrier presents photocopies of reasonably apparent valid documents
seen at boarding and which were subsequently destroyed or discarded en
route to the United States. Waiver of the fine would not occur in this
instance if the documents were blatantly fraudulent or if the carrier
makes a statement to the Service that they suspected the documents to
be fraudulent.
Examples of circumstances that would warrant mitigation by 25
percent may include, but are not limited to the following situations:
(a) Nonimmigrant child who is added to a passport subsequent to the
issuance of the nonimmigrant visa where the ``s'' in the word
``BEARER(S)'' is crossed out;
(b) Lawful permanent resident who is not in possession of Form I-
551, but possesses a Form I-797, Notice of Action, removing conditional
status and indicating it is valid for travel and employment;
(c) British subject, including British overseas citizen, British
dependent territories citizen, or citizen of a British commonwealth
country, seeking entry under WVPP but not eligible for the WVPP because
they were not a British citizen with unrestricted right of permanent
abode in the United Kingdom; and
(d) A nonimmigrant who would otherwise qualify for admission under
the Transit without Visa (TWOV) Program except that he or she is
arriving at a non-designated TWOV Port-of-Entry.
Eleven respondents cite Sec. 273.4(b) of the proposed regulation as
an area of concern. It states: The Service may, at any time, conduct an
inspection of a carrier's document screening procedures at ports of
embarkation to determine compliance with the procedures listed in
Sec. 273.3. If the carrier's port of embarkation operation is found not
to be in compliance, the carrier will be notified by the Service that
its fines will not be eligible for refund, reduction, or waiver of
fines under section 273(e) of the Act unless the carrier can establish
that lack of compliance was beyond the carrier's control.
The respondents express no objection to the Service's intention to
conduct an inspection of a carrier's screening procedures at a port of
embarkation but question whether the Service has the authority to
conduct inspections in sovereign countries. The respondents express
concern that the Service might consider the carrier to be non-compliant
with the screening requirements if the carrier is otherwise compliant
but local authorities prevent the Service from performing an
inspection. The Service does concur with the comments regarding
Sec. 273.4(b). No Service inspection of a carrier's boarding procedure
shall take place if not permitted by the local competent authority. The
Service never contemplated penalizing a carrier for non-compliance of
its screening procedure due to the inability of the Service to inspect
its operation at a port of embarkation due to the refusal of a
competent authority to grant the Service inspection privileges.
However, the Service does expect the carrier to use its good offices
with the local competent authority to secure access for a Service
inspection. This section of the regulation shall be amended to read as
follows:
The Service may, at any time, conduct an inspection of a carrier's
document screening procedures at ports of embarkation to determine
compliance with the procedures listed in Sec. 273.3, to the extent
permitted by the local competent authority responsible for port access
or security. If necessary, the carrier shall use its good offices to
obtain this permission from the local authority [emphasis added]. If
the carrier's port of embarkation * * *.
Similarly, three sections of the MOU, 1.3, 3.4, and 3.7, will also
be amended with the same language. Nevertheless, if a carrier cannot
comply with a section of the MOU because of local law, the carrier must
notify the Assistant Commissioner of Inspections, in writing, listing
the specific section of the MOU with which it is unable to be in
compliance because of said local law or local competent authority. The
carrier must notify the Service within ten (10) days after becoming
aware of this
[[Page 23650]]
inability to comply in order to be deemed in compliance with the MOU.
Section 3.14 has been added to the MOU. It reads as follows:
The Carrier agrees to notify the Assistant Commissioner of
Inspections, in writing, if it is unable to comply with any section of
the MOU because of local law or local competent authority. The Carrier
shall list the specific section of the MOU with which it is unable to
comply and, to be in compliance with the MOU, shall notify the Service
within ten (10) days after becoming cognizant of this prohibition.
Further, in such instances the Carrier shall propose alternative means
for meeting the objective sought by the paragraph in question. For
instance, where review of foreign boarding procedures cannot be
performed by INS personnel, the Carrier could provide that an audit of
their operation be performed by local authorities or by private
auditors.
Additionally, if a carrier's port of embarkation operation was
found not to be in compliance, the carrier's eligibility for refund,
reduction, or waiver of fines would be jeopardized only for those
violations from that port of embarkation. Fines originating from that
specific port of embarkation would not be subject to fines mitigation
unless the carrier could establish that lack of compliance was beyond
the carrier's control. The carrier's entire fines mitigation could be
placed in jeopardy the following year if their PL were adversely
affected causing the carrier to have an PL worse than the APL or APL2
itself. The Service would be reluctant to allow a carrier with a
declining PL that was lower than the APL to receive fines mitigation
unless evidence was presented to suggest that the carrier planned to
increase or had increased screening and vigilance procedures or that
there were extenuating circumstances beyond the control of the carrier.
Six respondents state that the proposed rule, though supposedly
based on the Canadian system of fines mitigation, bears little
resemblance to the actual Canadian method, which allows for up-front
reductions of 100 percent for eligible carriers. The proposed Service
fines mitigation policy, though similar to the Canadian fines
mitigation system, is significantly different because of the following:
(1) Vast differences in traffic volume in the United States as compared
with Canada; (2) the large number of ports of embarkation to the United
States; (3) the large number of United States Ports-of-Entry; and, (4)
the different statutes themselves. The United States Ports-of-Entry
handle almost ten times the volume of traffic transported to Canada.
The relative small scale of the air traffic to Canada enables the
Canadians to screen each air route to Canada so that a standard is
created for carrier screening performance from each port of
embarkation. By contrast, the huge number of routes to the United
States prevents the Service from performing a similar exercise. The
Canadian fines system also allows for carrier fines in the
transportation of aliens who destroy or discard their documents prior
to arrival in Canada. On the other hand, the United States may accept
carrier photocopies of these document-destroyers' apparently valid
documents and may terminate the fines case upon their submission
whereas the Canadians do not accept photocopies.
The respondents further claim that the Service's proposed rule
offers a maximum of 50 percent up-front reduction thereby ``forcing
carriers to defend themselves in every instance.'' The Service
disagrees that the carriers will be forced to defend themselves in
every instance if signatory to the MOU. During 8 years of fines
interaction with the Service's NFO, the carriers have obtained a
thorough knowledge of the fines process and what fines will be
terminated by the Service and what fines will not. The examples of
mitigating and extenuating circumstances listed above where the Service
will waive or mitigate a fine will provide the carriers with further
information to determine whether to defend or seek reduction or waiver
of a fine.
Some respondents claim the Canadian method resulted in a 50 percent
decrease in improperly documented arrivals in the first year of
implementation and that the program resulted in enhanced cooperation
between the carriers and the Canadian Government. The respondents state
that, because the proposed rule does not provide incentives comparable
to the Canadian method, relations between the carriers and the Service
will not improve and the number of violations of section 273 of the Act
will not necessarily decrease.
The Service has seen a downward trend in the transportation of
improperly documented aliens nationwide since 1992. The number of
violations of section 273 of the Act reached its high point in FY 91
(7,052 violations) and FY 92 (7,072). For FY 94, the last year in which
statistics are available due to this final rule, there were only 4,512
violations of section 273 of the Act, a 36 percent decrease. The
Service has also noticed the number of document-destroyers at John F.
Kennedy International Airport (JFKIA) has decreased from 3,153 in FY 93
to only 582 in FY 96; an 80 percent decrease. The number of asylum
claims in JFKIA, which include the document-destroyers and aliens
arriving with fraudulent documents, decreased from 9,180 in FY 92 to
only 1,213 in FY 96; an 86 percent decrease. The Service views the
fines increase to the present sum of $3,000 as the catalyst which made
it cost-effective for carriers to seek Service training for its agents
stationed at the overseas ports of embarkation. This cooperation
between the carriers and the Service has brought both closer to
reaching the mutually beneficial goal of reducing the number of
improperly documented aliens arriving in the United States. The fines
mitigation regulation and corresponding MOU represent an extension of
this partnership, where the carrier is financially rewarded for
properly screening its passengers prior to embarkation to the United
States.
The Service concedes that if this plan is implemented there is no
guarantee that the number of violations will decrease. The Service is
unsure whether, by decreasing the amount of fines imposed on carriers
through this final rule, the carriers will continue to invest the time
and monetary resources on the training programs now in place. With
carrier turnover of overseas agents at 25 percent per year, the
carriers must continue to invest in their training programs on the
interception of fraudulent documents and on documentary requirements of
the United States so that the number of violations does not increase.
Until the effects of fines mitigation on the increase or decrease of
violations is known, fines mitigation percentages are to be initiated
at only 25 and 50 percent. The Service will retain the flexibility to
increase, decrease, or maintain the mitigation reductions and/or the
APL and APL2 yardsticks so that any overall decrease in carrier
screening can be rectified through appropriate Service action.
Several respondents charged that the Service's proposed rule was
deliberately designed to defeat Congressional intent by determining
reductions based on payment history. Delinquent carrier fines,
liquidated damages, and user fee payments have made this a necessity.
Service records reflect that over $5 million of carrier fines,
liquidated damages, and user fees are outstanding for more than 30
days. Existing administrative means to enforce collection of these
monies are insufficient and have led to litigation. This provision in
the final rule will enable the Service to collect the
[[Page 23651]]
outstanding obligations of commercial transportation lines in a more
timely and cost-effective manner. This policy was first published in
the Federal Register as a notice of policy regarding contracts between
the Service and the carriers (See 61 FR 5410, February 12, 1996). In
the notice, the Service informed the public of its intention to deny
transportation line requests for the following contracts, if the line
had an unacceptable fines, liquidated damages, or user fee payment
record: (1) Form I-420, Agreement (Land Borders) Between Transportation
Line and the United States; (2) Form I-425, Agreement (Preinspection)
Between Transportation Line and the United States (At Places Outside of
the United States); (3) progressive clearance agreement requests; (4)
Form I-426, Immediate and Continuous Transit Agreement, also known as
Transit Without Visa (TWOV) agreement; (5) International-to-
International (ITI) agreements, also known as In-Transit Lounge (ITL)
agreements; and, (6) Form I-775, Visa Waiver Pilot Program (VWPP)
Carrier Agreement. An unacceptable fines payment record is one that
includes fines or liquidated damages that are delinquent 30 days and
have been affirmed by either a final decision or formal order. An
unacceptable user fee payment record is one that includes user fees
that are delinquent 30 days.
The Service also notified the public of its intention to evaluate
existing carrier agreements for possible cancellation on account of a
carrier's unacceptable payment record. The Service stated it will
notify the affected carrier in writing of the proposed Service decision
and will allow the carrier 30 days to make full payment of the debt or
to show cause why the debt is not valid. The Service will issue a final
determination after the close of the 30-day period. Promptness and good
faith in the payment of fines are critically relevant factors in
carrier performance which motivates mitigation of fines. It is clearly
logical to link the mitigation of fines to the prompt and faithful
payment of fines and this reasoning has been upheld in the courts (See
Amwest Surety Insurance Company v. Reno, CA No. 93-56625, DC No. CV-93-
03256-JSL[S]). There is no legislative history to support the
respondents' claims regarding Congressional intent of section 273(e) of
the Act (See 140 Cong. Rec. S14400-S14405 [daily ed. October 6, 1994];
id., H9272-H9281 [daily ed. September 20, 1994]).
The Service agrees with the commenter regarding prior notification
to the carrier of an unsatisfactory fines, liquidated damages, or user
fee payment record before termination of its fines mitigation levels
(whether 25 or 50 percent). Therefore, the Service will notify the
affected carrier in writing of the proposed Service decision to
terminate a carrier's fines mitigation privilege. The Service will
allow the carrier 30 days to make full payment of the debt or to show
cause why the debt is not valid. Fines incurred during the 30-day
period will be mitigated in accordance with the carrier's fines
mitigation PL. The Service will issue a final determination after the
close of the 30-day period. Carrier fines violations incurred from the
date of an adverse determination by the Service to terminate a
carrier's fines mitigation privilege will not be subject to automatic
fines mitigation based on screening procedures; however, individual
requests for reduction, refund, or waiver citing mitigating or
extenuating circumstances will be considered.
One respondent requested that the proposed rule include a specific
waiver for sanctions against a carrier for the transportation of an
alien who is granted asylum or permitted to stay in the United States
on humanitarian grounds. The respondent argues that sanctions against
the carrier are unfounded as long as the United States has an asylum
program and that inhibiting the carrier from transporting refugees to
the United States would constitute a human rights violation on the part
of the Service. The Service has in place procedures (See 8 CFR 280.12
and 280.51) whereby carriers may request mitigation or termination of a
fine for extenuating circumstances.
Aliens who desire to request asylum in the United States should
follow the normal overseas refugee processing procedures. The Service
requires refugees to follow these procedures to obtain the proper
documentation to enter the United States. To allow carriers the
authority to determine admissibility of aliens not in possession of
proper documentation at the port of embarkation, because they indicate
a desire to apply for asylum in the United States, would seriously
undermine the enforcement of the Act and the security of the United
States, and would circumvent existing immigration laws and regulations.
Several commenters have noted that Sec. 273.4(a) requires the
carrier to ``provide evidence that it screened all passengers on the
conveyance for the instant flight or voyage in accordance with the
procedures listed in Sec. 263.3'' [emphasis added]. The commenters
requested that the term ``evidence'' be explained as to the Service
requirement. To fulfill this requirement the carrier must certify, on
carrier or its agent's letterhead, that in the particular voyage where
an improperly documented alien was transported, the carrier screened
all passengers on the conveyance in accordance with the procedures
listed in 8 CFR 273.3. Carriers who are not signatory to the MOU who
request fines mitigation based on screening procedures must include
this certification along with its application for reduction, refund, or
waiver of fines in accordance with the procedures outlined in 8 CFR
280.12 and 8 CFR 280.51. Several commenters pointed out the
typographical error in Sec. 273.6(b) whereby the word ``not'' was
mistakenly omitted form the proposed rule. The sentence is corrected to
read as follows:
(b) Carriers signatory to an MOU will not [emphasis added] be
required to apply for reduction, refund, or waiver of fines in
accordance with the procedures outlined in 8 CFR 280.12 and 8 CFR
280.51, but will follow procedures as set forth in the MOU.
Many commenters stated that the regulation and the corresponding
MOU have terms which are vague and ambiguous. The Service, during the
writing of the Carrier Cooperative Agreement (CCA), the precursor to
the present regulation and MOU, was requested to use general language
so that the carrier, not the Service, would determine the screening
procedures to utilize at the ports of embarkation, since the carrier is
in the best position to decide on the amount of screening necessary at
particular ports of embarkation. Some ports of embarkation require
minimal amount of screening due to the low-risk nature of the
passengers while at high-risk ports of embarkation a greater amount is
appropriate. The carrier organizations requested that the carriers
themselves determine the level of document screening necessary rather
than have the Service mandate a level of screening that may not be
cost-effective for the carrier.
Several commenters requested the Service to provide fines
mitigation based on ``carrier compliance with INS-prescribed screening
procedures.'' While the Service has set out the screening requirements
carriers must undertake at the ports of embarkation in order to be
eligible for fines mitigation, the Service cannot physically verify a
carrier's actual screening procedures at every port of embarkation due
to the limited Service personnel and the large number of carriers and
ports of embarkation. As stated previously, in comparing the Canadian
and United States systems for fines mitigation, the
[[Page 23652]]
size of the passenger transportation industry in the United States
makes the individual verification of a carrier's overseas screening
procedures not feasible. The Service contemplates the inspection of
only a sampling of carrier screening procedures at foreign ports of
embarkation each year. Therefore, the Service is forced to determine
carrier screening performance based on the proposed methodology
explained previously.
Several respondents claimed that the proposed rule does not
``provide carriers with sufficient certainty that fines will be reduced
if specified criteria are met.'' The Service has made it emphatically
clear that fines will be reduced if the carrier has effective screening
procedures. Effective screening is determined by the carrier's PL and
if that PL is at or better than the APL. If the carrier's PL does not
meet or exceed the APL, the carrier may still submit evidence in
accordance with section 4.13 of the MOU, maintain a satisfactory fines,
liquidated damages, and user fee payment record to be eligible for
fines mitigation. If there are additional ``extenuating
circumstances,'' the carrier may be eligible for additional fines
mitigation above and beyond the up-front reductions established by the
PL of the carrier. Thus, carriers meeting the first two requirements
enumerated in Sec. 273.5(c) of the regulation (i.e. effective screening
procedures and satisfactory fines and user fee payment record) can be
certain that their fines will be reduced according to the carrier's PL.
In addition, carriers not signatory to the MOU may seek mitigation or
remission of fines in accordance with the procedures outlined in 8 CFR
280.12 and 8 CFR 280.51.
One respondent incorrectly cites the case of Linea Area Nacional de
Chile S.A. v. Sale to support his argument that it is unfair ``to fine
a carrier where it has properly screened the passengers for the
[Transit Without Visa] TWOV requirements.'' This case involved a
dispute between the carriers and the Service regarding responsibility
for the detention of TWOV aliens, and has nothing to do with the
boarding of improperly documented TWOV or nonimmigrant aliens.
One commenter queried the significance of the MOU to a carrier
whose PL did not meet or exceed the APL and if that carrier would
qualify for the 25 percent automatic fines mitigation. If the carrier
is signatory to the MOU and is eligible for automatic fines mitigation,
the Service will not require the submission of evidence demonstrating
the extent to which a carrier prevents the transport of improperly
documented passengers for each case. Being signatory to the MOU will
satisfy the requirement that the carrier has screened all passengers on
the vessel or aircraft in accordance with procedures prescribed by the
Attorney General as section 273(e)(1) of the Act requires. Of course,
if the carrier can provide evidence that mitigating or extenuating
factors should be considered as well, filing a defense for additional
fines mitigation would be recommended.
If a carrier is not signatory to the MOU, regardless of their PL,
the Service will require certification that the carrier properly
screened its passengers if the carrier is applying for fines mitigation
based on screening requirements. The Service intends to consider the
evidence presented by a non-signatory carrier, including the carrier's
current and past PLs, as well as other Service data and information,
prior to the granting of the fines mitigation for screening procedures.
In addition, the Service will consider any additional evidence that
would demonstrate any mitigating or extenuating factors relevant to
additional fines mitigation.
Several commenters wanted the Service to give extra ``benefit'' to
carriers employing professional security agencies. While the Service
commends such actions, it would be inappropriate to further reward a
carrier for the use of a professional security agency merely because it
was deemed ``professional.'' The carrier's reward for the employment of
such an agency is the reduction of the number of improperly documented
aliens transported to the United States. The fewer number of fines
violations a carrier incurs, the lower the carrier's PL. The lower the
carrier's PL, the greater the amount of fines reduction. This will
result in the reduction in the amount and number of fines imposed on
the carriers.
Several commenters requested the source of the figures used in
determining a carrier's PL, the APL, and APL2. The number of each
carrier's violations is taken from the number of fines violations
recorded by the National Fines Office (NFO) for each carrier for each
fiscal year. This number omits all fines for lawful permanent residents
and fines cases recommended from the Ports-of-Entry which are rejected
by the NFO. This number does not omit those fines which are appealed to
the Board of Immigration Appeals (BIA) by the carrier. To delete the
fines appealed by the carrier from this number would decrease a
carrier's PL even though the Service contends a fines violation did
occur. A carrier which appealed all its fines, no matter how frivolous
the appeals, would then have a PL of zero. This result would create a
perverse incentive to appeal all cases, regardless of the merits of a
particular case. The more prudent course, which the Service will
follow, is to consider in the calculation of the PL all fines imposed,
including those on appeal, but then to recalculate a carrier's PL, as
necessary, to reflect those cases in which the carrier prevails on
appeal to the BIA or in the courts.
The source of the number of documented nonimmigrant arrivals per
carrier per fiscal year is obtained from the Forms I-92, Aircraft/
Vessel reports completed at the individual Ports-of-Entry. Based on the
suggestion of some commenters, the Service intends to use the same
yardstick (APL and APL2) computed by using data from fiscal year 1994
(FY) for the mitigation of fines for FY 95, FY 96, and for FY 97. The
Service may exercise its discretion to use the APL and APL2 FY 94
yardstick for fines mitigation for FY 98 and FY 99. The Service concurs
with several commenters' observation that by re-computing the APL and
APL2 annually, the Service would continually raise the fines mitigation
standard, preventing carriers from ever qualifying for fines mitigation
by having a ``moving bell curve.''
Some commenters have stated that carriers are eligible for fines
mitigation under section 273(c) of the Act. The Service does not
concur. Section 273(c) of the Act provides for fines remission or
refund but not for fines mitigation. The Service has remitted or
refunded fines when a carrier demonstrates that it has exercised
reasonable diligence. Section 273(c), however, does not provide for
fines reduction or mitigation.
Some commenters wanted the Service to ``make clear that training is
not tied to attendance of such [Carrier] personnel at INS training
sessions.'' The Service has no intention of dictating to the carrier
the type of training it should provide its employees. However, the
Service does require the carrier to have trained employees at the ports
of embarkation to examine all travel documents. Further, carriers
signatory to the MOU agree to participate in Service training programs
and use Service Information Guides (See section 3.9 of the MOU).
Some respondents have stated that, due to time constraints and
carrier facilitation needs, the carrier is unable to perform a thorough
examination of a passenger's travel documents. In addition, several
commenters claim they fear legal action if they refuse to board a
passenger. Nevertheless, Congress
[[Page 23653]]
requires the carrier to make certain its passengers are properly
documented and gives the Service the authority to impose financial
penalties on carriers which bring improperly documented aliens to the
United States. See Matter of Swiss Air ``Flight 164'' 15 I&N Dec 111
(BIA 1974).
One commenter requested that the Service determine the PL, APL, and
APL2 quarterly. At the present time the Service projects a minimum 3-
month lag time in the computation of a carrier's PL each fiscal year.
If technological advances permit the rapid collection of this
information, the Service will consider the commenter's suggestion for
quarterly or semi-annual computation of a carrier's PL and/or the APL/
APL2. Additionally, the Service is not opposed to future consideration
of the proposal made by the commenter requesting that the Service
determine carrier PLs, APLs, and APL2s for individual ports of
embarkation (i.e., individual routes). As technology improves, the
Service will examine the feasibility of making these calculations and
presenting this approach to the carriers. Consultations with the
carriers on these and other modifications, including risk assessments,
route variations, past and present carrier performance history, and a
general commitment to the process of proper screening of passengers,
should be ongoing so that needed regulatory changes, if any, or changes
to the MOU, can be incorporated in the next revision of the fines
mitigation program.
The Service concurs with several commenters who suggested that the
MOUs should all expire on a certain day rather than 2 years from the
date of each carrier's approval by the Service. Accordingly, the MOU
will expire on September 30, 2000, for all carriers.
The Service concurs with one commenter's suggestion that the
Service should immediately share information with the carrier at the
Port-of-Entry where the fines violation occurs and is recommended to
the Service. The Service currently provides the carrier with a copy of
the Form I-849, Report to National Fines Office [NFO] of Possible
Violation of the INA, which gives the carrier the Service's reason(s)
for recommendation of the fine to the NFO for issuance of the Form I-
79, Notice of Intent to Fine. It is the issuance of Form I-79 that is
the official Service notification to a carrier that a violation has
occurred for which a fine may be assessed. The Form I-79 is issued by
the NFO after review of the evidence submitted. If the carrier would
like additional information, the NFO can answer most inquires. If
carriers want a revision of the Form I-849, the Office of Inspections
should be requested to consider such suggestions when the Service next
modifies the Form I-849.
The Service concurs with a commenter that the Service should
designate a coordinator to be the contact point for all issues arising
from implementation of the MOU. Therefore, section 4.1 has been added
to the MOU and subsequent sections re-numbered. Section 4.1 reads as
follows:
The Director of the National Fines Office will serve as a
coordinator for all issues arising from the implementation of this MOU.
The INS shall provide the carrier with the coordinator's name, address,
telephone, and facsimile number.
The Service has also taken into consideration suggested changes to
several sections of the MOU and concurs on the following amendments to
the MOU:
In section 3.2 the word ``verify'' is replaced by the phrase
``confirm, to the best of their ability'' and the word ``apparent'' is
added to the last sentence. Section 3.2 is amended to read as follows:
The Carrier agrees to verify that trained personnel examine and
screen passengers' travel documents to confirm, to the best of their
ability, that the passport, visa (if one of required), or other travel
documents presented are valid and unexpired, and that the passenger,
and any accompanying passenger named in the passport, is the apparent
rightful holder of the document.
In section 3.6 one commenter requested the addition of the sentence
``[f[ollowing notification by the INS, or its representative, the'' to
precede the present section 3.6. The Service concurs with this
suggestion. Section 3.6 is amended to read as follows:
Following notification by the INS, or its representative, the
Carrier shall refuse to knowingly transport any individual who has been
determined by an INS official not to be in possession of proper
documentation to enter or pass through the United States. Transporting
any improperly documented passenger so identified may result in a civil
penalty. At locations where there is no INS presence, carriers may
request State Department Consular officials to examine and advise on
authenticity of passenger documentation. State Department Consular
officials will act in an advisory capacity only.
The Service also concurs with the commenter regarding section 3.8
dealing with carrier security at the port of embarkation. The word
``adequate'' shall be replaced by the word ``reasonable.'' Section 3.8
is amended to read as follows:
The Carrier shall maintain a reasonable level of security designed
to prevent passengers from circumventing any Carrier document checks.
The Carrier shall also maintain a reasonable level of security designed
to prevent stowaways from boarding the Carrier's aircraft or vessel.
The Service is committed to continuing consultations with the
carrier organizations in the area of fines mitigation. The Service
views the fines mitigation regulation and the corresponding carrier-
Service MOU as prime examples of carrier-Service cooperation in
facilitating travel for the general public and protecting the American
people through the enforcement of the immigration laws and regulations.
The Service views the fines mitigation final rule as a continuance of
this carrier-Service interaction and welcomes all future carrier
questions and issues to improve passenger facilitation and enforcement
of the Act and its regulations.
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 significant economic impact on a substantial number of
small entities. This rule will not adversely affect carrier
expenditures but will lessen carrier expenditures for certain carriers,
including carriers that may qualify as ``small entities,'' which
properly screen passengers being transported to the United States. The
imposition of fines is a requirement of law and a valuable tool in
preventing the landing of undocumented or insufficiently documented
aliens in the United States. Fines for transporting improperly
documented passengers are imposed by many countries, including Canada,
Germany, and the United Kingdom. Currently, if carriers want to lessen
the monies paid to the Service for fines violations under section 273
of the Act, the carrier trains its employees in documentary
requirements for entering the United States. This training is necessary
regardless of fines mitigation provisions. Any additional training
required by the MOU can be provided by the Service's Carrier Consultant
Program (CCP) upon carrier request. Carrier agent training is generally
one to two days and can be conducted at the port of embarkation.
Training materials are provided by the Service. The only
[[Page 23654]]
cost to the carrier will be the lost productivity of the carrier agent
to attend the training sessions. However, that cost exists now so the
Service anticipates little or no increase in costs to any participating
carrier. The Service has also developed an Information Guide to be
distributed to the carriers for use at the foreign ports of
embarkation. It will function as a resource to assist carrier personnel
in determining proper documentary requirements and detecting fraud.
Most carriers probably do a cost-benefit analysis to determine the
amount of carrier training versus fines violation costs. Likewise, each
carrier will probably conduct a cost-benefit analysis prior to signing
the MOU. Carriers signatory to the MOU will have automatic fines
reduction and will save the cost of filing appeals for every case,
unless further reduction or termination of the fine is sought. Smaller
carriers that have high violation rates or cannot dedicate resources to
training its agents are invited to contact the Service on the best way
to address these problems. There is no indication that smaller carriers
are fined more or less than larger carriers. Carrier size is not a
factor in the determination of a carrier's performance level. With
section 286 of the Act being amended by section 124 of the Illegal
Immigration Reform And Immigrant Responsibility Act of 1996 (Pub. L.
104-208, Dated September 30, 1996, known as IIRIRA), the Service is
mandated to provide training and technical assistance to commercial
airline personnel regarding the detection of fraudulent documents at an
amount not less than five percent of the Service's user fee revenue.
Smaller carriers can therefore rely on the Service to fulfill many of
their training requirements. However, ultimately it is up to the
carrier to consider the costs and benefits of participating in the
program.
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
million or more in any 1 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 section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in cost or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of the United States-based companies to compete with
foreign-based companies in domestic and export markets.
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 regulation has been submitted to the Office of
Management and Budget for review.
The Service has estimated the reduction in collections due to the
implementation of this regulation as follows:
FY95 Backlogged Cases: 2033
Up to 19% of the carriers may receive 50% reduction (based on
APL2); up to 22% of the carriers may receive 25% reduction (based on
APL); up to 29% of the carriers may receive 25% reduction (based on
MOU); and, up to 30% of the carriers may receive no reduction.
Estimated collections due from FY95 cases: $4.7 million.
Estimated collections without mitigation: $6.1 million.
Difference in collections: $1.4 million or 23% reduction.
FY96 Backlogged Cases: 3086
Up to 32% of the carriers may receive 50% reduction (based on
APL2); up to 21% of the carriers may receive 25% reduction (based on
APL); up to 24% of the carriers may receive 25% reduction (based on
MOU); and, up to 23% of the carriers may receive no reduction.
Estimated collections due from FY96 cases: $6.8 million.
Estimated collections without mitigation: $9.3 million.
Difference in collections: $2.5 million or 27% reduction.
FY97 Backlogged Cases: 2097
Up to 37% of the carriers may receive 50% reduction (based on
APL2); up to 18% of the carriers may receive 25% reduction (based on
APL); up to 23% of the carriers may receive 25% reduction (based on
MOU); and, up to 22% of the carriers may receive no reduction.
Estimated collections due from FY97 cases: $4.6 million.
Estimated collections without mitigation: $6.3 million.
Difference in collections: $1.7 million or 27% reduction.
Executive Order 12612
The regulation adopted 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 Civil Justice Reform
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
Paperwork Reduction Act of 1995.
The supplementary information portion of this final rule requires
carriers whose PL is not at or better than the APL, to submit evidence
to the Service so that they may receive an automatic fine reduction of
25 percent, if certain conditions are met. The evidence is considered
an information collection which is subject to review by OMB under the
Paperwork Reductions Act of 1995. Therefore, the agency solicits public
comments on the information collection requirements for 60 days in
order to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
The Service, in calculating the overall burden this requirement
will place upon the public, estimates that approximately 65 carriers
whose PL is not at or better than the APL, will submit evidence to take
advantage of the 25 percent fines reduction. The Service also estimates
that it will take each carrier approximately 100 hours to comply with
the evidence requirements. This amounts to 6500 total burden hours.
[[Page 23655]]
As required by section 3507(d) of the Paperwork Reduction Act of
1995, the Service has submitted a copy of this final rule to OMB for
its review of the information collection requirements. Other
organizations and individuals interested in submitting comments
regarding this burden estimate or any aspect of these information
collection requirements, including suggestions for reducing the burden,
should direct them to: Immigration and Naturalization Service,
Director, Policy Directives and Instructions Branch, Room 5307, 425 I
Street NW., Washington, DC 20536. The comments or suggestions should be
submitted within 60 days of publication of this rulemaking.
List of Subjects in 8 CFR Part 273
Administrative practice and procedure, Aliens, Carriers, Penalties.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended by adding a new part 273 as follows:
PART 273--CARRIER RESPONSIBILITIES AT FOREIGN PORTS OF EMBARKATION;
REDUCING, REFUNDING, OR WAIVING FINES UNDER SECTION 273 OF THE ACT
Sec.
273.1 General.
273.2 Definition.
273.3 Screening procedures.
273.4 Demonstration by carrier that screening requirements were met.
273.5 General criteria used for reduction, refund, or waiver of
fines.
273.6 Memorandum of Understanding.
Authority: 8 U.S.C. 1103, 1323; 8 CFR part 2.
Sec. 273.1 General.
In any fines case in which a fine is imposed under section 273 of
the Act involving an alien brought to the United States after December
24, 1994, the carrier may seek a reduction, refund, or waiver of fine,
as provided for by section 273(e) of the Act, in accordance with this
part. The provisions of section 273(e) of the Act and of this part do
not apply to any fine imposed under any provision other than section
273 (a)(1) and (b) of the Act.
Sec. 273.2 Definition.
As used in this part, the term Carrier means an individual or
organization engaged in transporting passengers or goods for hire to
the United States.
Sec. 273.3 Screening procedures.
(a) Applicability. The terms and conditions contained in paragraph
(b) of this section apply to those owners, operators, or agents of
carriers which transport passengers to the United States.
(b) Procedures at ports of embarkation. At each port of embarkation
carriers shall take reasonable steps to prevent the boarding of
improperly documented aliens destined to the United States by taking
the following steps:
(1) Screening of passengers by carrier personnel prior to boarding
and examination of their travel documents to ensure that:
(i) The passport or travel document presented is not expired and is
valid for entry into the United States;
(ii) The passenger is the rightful holder; and
(iii) If the passenger requires a visa, the visa is valid for the
holder and any other accompanying passengers named in the passport.
(2) Refusing to board any passenger determined to be improperly
documented. Failure to refuse boarding when advised to do so by a
Service or Consular Officer may be considered by the Service as a
factor in its evaluation of applications under Sec. 273.5.
(3) Implementing additional safeguards such as, but not necessarily
limited to, the following:
(i) For instances in which the carrier suspects fraud, assessing
the adequacy of the documents presented by asking additional, pertinent
questions or by taking other appropriate steps to corroborate the
identity of passengers, such as requesting secondary information.
(ii) Conducting a second check of passenger documents, when
necessary at high-risk ports of embarkation, at the time of boarding to
verify that all passengers are properly documented consistent with
paragraph (b)(1) of this section. This includes a recheck of documents
at the final foreign port of embarkation for all passengers, including
those originally boarded at a prior stop or who are being transported
to the United States under the Transit Without Visa (TWOV) or
International-to-International (ITI) Programs.
(iii) Providing a reasonable level of security during the boarding
process so that passengers are unable to circumvent any carrier
document checks.
Sec. 273.4 Demonstration by carrier that screening requirements were
met.
(a) To be eligible to apply for reduction, refund, or waiver of a
fine, the carrier shall provide evidence that it screened all
passengers on the conveyance for the instant flight or voyage in
accordance with the procedures listed in Sec. 273.3.
(b) The Service may, at any time, conduct an inspection of a
carrier's document screening procedures at ports of embarkation to
determine compliance with the procedures listed in Sec. 273.3, to the
extent permitted by the local competent authority responsible for port
access or security. If necessary, the carrier shall use its good
offices to obtain this permission from the local authority. If the
carrier's port of embarkation operation is found not to be in
compliance, the carrier will be notified by the Service that it will
not be eligible for refund, reduction, or waiver of fines under section
273(e) of the Act unless the carrier can establish that lack of
compliance was beyond the carrier's control.
Sec. 273.5 General criteria used for reduction, refund, or waiver of
fines.
(a) Upon application by the carrier, the Service shall determine
whether circumstances exist which would justify a reduction, refund, or
waiver of fines pursuant to section 273(e) of the Act.
(b) Applications for reduction, refund, or waiver of fine under
section 273(e) of the Act shall be made in accordance with the
procedures outlined in 8 CFR 280.12 and 8 CFR 280.51.
(c) In determining the amount of the fine reduction, refund, or
waiver, the Service shall consider:
(1) The effectiveness of the carrier's screening procedures;
(2) The carrier's history of fines violations, including fines,
liquidated damages, and user fee payment records; and,
(3) The existence of any extenuating circumstances.
Sec. 273.6 Memorandum of Understanding.
(a) Carriers may apply to enter into a Memorandum of Understanding
(MOU) with the Service for an automatic reduction, refund, or waiver of
fines imposed under section 273 of the Act.
(b) Carriers signatory to an MOU will not be required to apply for
reduction, refund, or waiver of fines in accordance with the procedures
outlined in 8 CFR 280.12 and 8 CFR 280.51, but will follow procedures
as set forth in the MOU.
(c) Carriers signatory to an MOU will have fines reduced, refunded,
or waived according to performance standards enumerated in the MOU or
as determined by the Service.
(d) Carriers signatory to an MOU are not precluded from seeking
additional reduction, refund, or waiver of fines in accordance with the
procedures outlined in 8 CFR 280.12 and 8 CFR 280.51.
[[Page 23656]]
Dated: April 24, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
Note: Appendix A, Memorandum of Understanding, will not appear
in the Code of Federal Regulations.
Appendix A--United States Immigration and Naturalization Service
Section 273(E) Memorandum of Understanding
This voluntary Memorandum of Understanding (MOU) is made between
____________________ (hereafter referred to as the ``Carrier'') and
the United States Immigration and Naturalization Service (hereafter
referred to as the ``INS'').
The purpose of this MOU is to identify the responsibilities of
each party to improve the performance of the Carrier with respect to
its duty under section 273 of the Immigration and Nationality Act
(the Act) to prevent the transport of improperly documented aliens
to the United States. Based on the Carrier's Performance Level (PL)
in comparison to the Acceptable Performance Level (APL) or Second
APL (APL2) set by the INS, and based upon compliance with the other
stipulations outlined in the MOU, the INS may refund, reduce, or
waive a part of the Carrier's section 273 of the Act administrative
penalties. The MOU cannot, by law, exempt the Carrier from liability
for civil penalties. Although taking the steps set forth below will
not relieve the Carrier of liability from penalties, the extent to
which the Carrier has complied with this MOU will be considered as a
factor in cases where the INS may reduce, refund, or waive a fine.
It is understood and agreed by the parties that this MOU is not
intended to be legally enforceable by either party. No claims,
liabilities, or rights shall arise from or with respect to this MOU
except as provided for in the Act or the Code of Federal
Regulations. Nothing in this MOU relieves the Carrier of any
responsibilities with respect to United States laws, the Act, or the
Code of Federal Regulations.
This document, once jointly endorsed, will serve as a working
agreement to be utilized for all fines cases relating to section 273
of the Act, and reflects the mutual understanding of the Carrier and
the INS. This MOU shall take effect immediately upon its approval by
the Assistant Commissioner for Inspections and shall be a valid
working document and shall expire on September 30, 2000.
The Carrier's compliance with the MOU shall be evaluated
periodically. The Carrier shall be notified in writing of its PL and
the overall APL for each rating period. Accordingly, the Carrier
agrees to begin prompt and complete implementation of all of the
terms listed in this MOU. With 30 days written notice, either party
may terminate this MOU, for any reason, to include the INS'
termination of this MOU for the Carrier's failure to abide by its
terms. Any subsequent fines will be imposed for the full penalty
amount.
Memorandum of Understanding
1. Introduction
1.1 The Assistant Commissioner for Inspections shall exercise
oversight regarding the Carrier's compliance with this MOU.
1.2 The Carrier agrees to begin implementation of the
provisions set forth below immediately upon signing and receipt of
the MOU signed by the Assistant Commissioner for Inspections.
1.3 The Carrier agrees to permit the INS to monitor its
compliance with the terms of this MOU. The Carrier shall permit the
INS to conduct an inspection of the Carrier's document screening
procedures at ports of embarkation before arrival in the United
States, to determine compliance with the procedures listed in this
MOU, to the extent permitted by competent local authorities
responsible for port access and security. If necessary, the carrier
agrees to use its good offices to obtain this permission.
1.4 The Carrier agrees to designate a coordinator to be the
contact point for all issues arising from the implementation of this
MOU. The Carrier shall provide the INS with the coordinator's name,
title, address, telephone number, and facsimile number.
1.5 The Carrier shall require that all of its employees,
including its representatives, follow the provisions of this MOU,
and comply with all requirements of the Act. The Carrier further
agrees to cooperate with the INS in an open two-way exchange of
pertinent information.
2. Prompt Payment
2.1 The INS agrees to authorize a reduction in fine penalties
based on compliance with this MOU only if the Carrier has paid all
administrative fines, liquidated damages, and user fees. This
includes interest and penalties that have been imposed by either a
formal order or final decision, except cases on appeal.
2.2 The Carrier agrees to promptly pay all administrative
fines, liquidated damages, and user fees. This includes interest and
penalties that are imposed by a formal order or a final decision
during the time this MOU is in effect, except cases on appeal.
Prompt payment for the purposes of this MOU means payments made
within 30 days from the date of billing.
2.3 The INS shall periodically review the Carrier's record of
prompt payment for administrative fines, liquidated damages, and
user fees including interest and penalties. Failure to make prompt
payment will result in the loss of benefits of the MOU.
2.4 The Carrier agrees to select a person from its organization
as a contact point in the INS Office of Finance for the resolution
of payment issues. The Carrier shall provide the INS with the
contact person's name, title, address, telephone number, and
facsimile number.
3. Carrier Agreement
3.1 The Carrier shall refuse to knowingly carry any improperly
documented passenger.
3.2 The Carrier agrees to verify that trained personnel examine
and screen passengers' travel documents to confirm, to the best of
their ability, that the passport, visa (if one is required), or
other travel documents presented are valid and unexpired, and that
the passenger, and any accompanying passenger named in the passport,
is the apparent rightful holder of the document.
3.3 The Carrier agrees to conduct additional document checks
when deemed appropriate, to verify that all passengers, including
transit passengers, are in possession of their own, and proper,
travel documents as they board the aircraft, and to identify any
fraudulent documents.
3.4 The Carrier agrees to permit INS and State Department
Consular officials to screen passengers' travel documents before or
after the Carrier has screened those passengers for boarding, to the
extent permitted by the competent local authorities responsible for
port access and security. If necessary, the carrier agrees to use
its good offices to obtain this permission.
3.5 In cases involving suspected fraud, the Carrier shall
assess the adequacy of the documents presented by questioning
individuals or by taking other appropriate steps to corroborate the
identity of the passengers, such as requesting secondary
identification.
3.6 Following notification by the INS, or its representative,
about a particular passenger or passengers, the carrier shall refuse
to knowingly transport any such individual determined by an INS
official not to be in possession of proper documentation to enter or
pass through the United States. Transporting any improperly
documented passenger so identified may result in a civil penalty. At
locations where there is no INS presence, carriers may request State
Department Consular officials to examine and advise on authenticity
of passenger documentation. State Department Consular officials will
act in an advisory capacity only.
3.7 Where the Carrier has refused to board a passenger based on
a suspicion of fraud or other lack of proper documentation, the
Carrier agrees to make every effort to notify other carriers at that
port of embarkation about that passenger, to the extent permitted by
competent local authorities responsible for port access and
security. If necessary, the carrier agrees to use its good offices
to obtain this permission.
3.8 The Carrier shall maintain a reasonable level of security
designed to prevent passengers from circumventing any Carrier
document checks. The Carrier shall also maintain an adequate level
of security designed to prevent stowaways from boarding the
Carrier's aircraft or vessel.
3.9 The Carrier agrees to participate in INS training programs
and utilize INS Information Guides and other information provided by
the INS to assist the Carrier in determining documentary
requirements and detecting fraud.
3.10 The Carrier agrees to make the INS Information Guides and
other information provided by the INS readily available for use by
Carrier personnel, at every port of embarkation.
3.11 The Carrier agrees to make appropriate use of
technological aids in screening documents including ultra violet
lights, magnification devices, or other equipment identified by the
INS to screen documents.
[[Page 23657]]
3.12 The Carrier agrees to expeditiously respond to written
requests from the appropriate INS official(s) for information
pertaining to the identity, itinerary, and seating arrangements of
individual passengers. The Carrier also agrees to provide manifests
and other information, required to identify passengers, information
and evidence regarding the identity and method of concealment of a
stowaway, and information regarding any organized alien smuggling
activity.
3.13 Upon arrival at a Port-of-Entry (POE) and prior to
inspection, the Carrier agrees to notify INS personnel at the POE of
any unusual circumstances, incidents, or problems at the port of
embarkation involving the transportation of improperly documented
aliens to the United States.
3.14 The Carrier agrees to notify the Assistant Commissioner of
Inspections, in writing, if it is unable to comply with any section
of the MOU because of local law or local competent authority. The
Carrier shall list the specific section of the MOU with which it is
unable to comply and, to be in compliance with the MOU, shall notify
the Service within ten (10) days after becoming cognizant of this
prohibition to comply. Further, in such instances the Carrier shall
propose alternative means for meeting the objective sought by the
paragraph in question. For instance, where review of foreign
boarding procedures cannot be performed by INS personnel, the
Carrier could provide that an audit of its operation be performed by
local authorities or by private auditors.
4. INS Agreement
4.1 The Director of the National Fines Office will serve as a
coordinator for all issues arising from the implementation of this
MOU. The INS shall provide the carrier with the coordinator's name,
address, telephone number, and facsimile number.
4.2 The INS agrees to develop an Information Guide to be used
by Carrier personnel at all ports of embarkation prior to boarding
passengers destined to the United States. The Information Guide will
function as a resource to assist Carrier personnel in determining
proper documentary requirements and detecting fraud.
4.3 The INS agrees to develop a formal, continuing training
program to assist carriers in their screening of passengers.
Carriers may provide input to the INS concerning specific training
needs that they have identified. Initial and annual refresher
training will be conducted by the INS or Carrier representatives
trained by the INS.
4.4 To the extent possible, INS and State Department Consular
officials will consult, support, and assist the Carrier's efforts to
screen passengers prior to boarding.
4.5 The INS shall determine each Carrier's Performance Level
(PL) based on statistical analysis of the Carrier's performance, as
a means of evaluation whether the Carrier has successfully screened
all of its passengers in accordance with 8 CFR 273.3 and this MOU.
The PL is determined by taking the number of each Carrier's
violations of section 273 of the Act for a fiscal year 1/ and
dividing this by the number of documented nonimmigrants (i.e., those
nonimmigrants that submit an Arrival/Departure Record, Form I-94, I-
94T, or I-94W) transported by the Carrier and multiplying the result
by 1,000.
4.6 The INS shall establish an Acceptable Performance Level
(APL), based on statistical analysis of the performance of all
carriers, as a means of evaluating whether the Carrier has
successfully screened all of its passengers in accordance with 8 CFR
273.3 and this MOU. The APL shall be determined by taking the total
number of all carrier violations of section 273 of the Act for a
fiscal year 1/ and dividing this by the total number of documented
nonimmigrants (i.e., those nonimmigrants that submit an Arrival/
Departure Record, Form I-94, I-94T, or I-94W) transported by all
carriers for a fiscal year and multiplying the result by 1,000.
4.7 The INS shall establish a Second Acceptable Performance
Level (APL2), based on statistical analysis of the performance of
all carriers at or better than the APL, as a means of further
evaluating carrier success in screening its passengers in accordance
with 8 CFR 273.3 and this MOU. Using carrier statistics for only
those carriers which are at or better than the APL, the APL2 shall
be determined by taking the total number of these carrier violations
of section 273 of the Act for a fiscal year \1\ and dividing by the
total number of documented nonimmigrants (i.e., those nonimmigrants
that submit an Arrival/Departure Record, Form I-94, I-94T, or I-94W)
transported by these carriers and multiplying the result by 1,000.
---------------------------------------------------------------------------
\1\ The total number of carrier violations of section 273 of the
Act for a fiscal year is determined by taking the total number of
violations minus violations for the transportation of improperly
documented lawful permanent residents and rejected cases. Rejected
cases include those cases where the INS has determined that either:
(1) no violation occurred; or, (2) sufficient evidence was not
submitted to support the imposition of a fine.
---------------------------------------------------------------------------
4.8 The PL, APL, and APL2 may be recalculated periodically as
deemed necessary, based on Carrier performance during the previous
period(s).
4.9 Carriers whose PL is at or better than the APL are eligible
to receive an automatic 25 percent reduction, if signatory to and in
compliance with this MOU, on fines imposed under section 273 of the
Act for periods determined by the INS.
4.10 Carriers whose PL is at or better than the APL2 are
eligible to receive an automatic 50 percent reduction, if signatory
to and in compliance with this MOU, on fines imposed under section
273 of the Act for periods determined by the INS.
4.11 If the Carrier's PL is not at or better than the APL, the
Carrier may receive an automatic 25 percent reduction in fines, if
it meets certain conditions, including being signatory to and in
compliance with the MOU, and the carrier submits evidence that it
has taken extensive measures to prevent the transport of improperly
documented passengers to the United States. This evidence shall be
submitted to the Assistant Commissioner for Inspections for
consideration. Evidence may include, but is not limited to, the
following: (1) Information regarding the Carrier's training program,
including participation of the Carrier's personnel in any INS,
Department of State (DOS), or other training programs and the number
of employees trained: (2) information regarding the date and number
of improperly documented aliens intercepted by the Carrier at the
port(s) of embarkation, including, but not limited to, the aliens'
name, date of birth, passport nationality, passport number or other
travel document information, and reason boarding was refused, if
otherwise permitted under local law; and, (3) other evidence,
including screening procedure enhancements, technological or
otherwise, to demonstrate the Carrier's good faith efforts to
properly screen passengers destined to the United States.
4.12 The Carrier may defend against imposition or seek further
reduction of an administrative fine if the case is timely defended
pursuant to 8 CFR part 280, in response to the Form I-79, Notice of
Intent to Find, and the Carrier establishes that mitigating or
extenuating circumstances existed at the time of the violation.
4.13 Nothing in this MOU precludes a carrier from seeking fine
reduction, refund, or waiver under 8 CFR 273.4.
----------------------------------------------------------------------
(Representative's Signature)
----------------------------------------------------------------------
(Title)
----------------------------------------------------------------------
(Carrier Name)
Dated:-----------------------------------------------------------------
----------------------------------------------------------------------
Assistant Commissioner, Office of Inspection, United States
Immigration and Naturalization Service.
Dated:-----------------------------------------------------------------
[FR Doc. 98-11481 Filed 4-29-98; 8:45 am]
BILLING CODE 4410-10-M
