[Federal Register Volume 61, Number 112 (Monday, June 10, 1996)]
[Proposed Rules]
[Pages 29323-29327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14470]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 /
Proposed Rules
[[Page 29323]]
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: Proposed rule.
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SUMMARY: This rule proposes to amend 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: Written comments must be submitted on or before August 9, 1996.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536, Attention Public Comment Clerk. Please include INS number 1697-
95 on your correspondence to ensure proper and timely handling. Also
include any written comments you may have concerning the proposed
Memorandum of Understanding (MOU) and fines levels that are included as
an appendix to this proposed rule. Comments are available for public
inspection at the above address by calling 202-514-3048, to arrange for
an appointment.
FOR FURTHER INFORMATION CONTACT:
Robert F. Hutnick, Assistant Chief Inspector, Immigration and
Naturalization Service, 425 I Street, NW., Room 7216, Washington, DC
20536, telephone number (202) 616-7499.
SUPPLEMENTARY INFORMATION:
Background
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, Public Law 103-416,
dated October 25, 1994, the Service, by statute, was not permitted 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 proposed 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 proposed 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 passengers transported to the United
States by each carrier compared to the number of alien passengers
transported.
This proposed 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 aliens 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 proposed rule does not impose any additional standards on
the carriers. Carriers are free to observe current fines procedures.
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. This
methodology described, therefore, is not included in the regulatory
language.
Under the proposed 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 and multiplying the result by 1000.
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
carriers for the same fiscal year and multiplying the result by 1000.
The Service shall establish a Second Acceptable Performance Level
(APL2),
[[Page 29324]]
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 carrier 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 1000.
Carriers which have achieved a satisfactory 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 satisfactory 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
the carrier's history of fines violations, including fines, liquidated
damages, and user fee payment records and 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 proposes to include in the regulation
neither the methodology it will use in determining a carrier's PL, the
APL, or the APL2 nor the fines reduction percentage levels. Both the
methodology in determining the success of a carrier's screening
procedures and the fines reduction percentages 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 shall retain the
flexibility to use a past APL or APL2, if appropriate, in determining
carrier fines reduction, refunds, or waivers for a specific period(s).
The Service will publish any significant, adverse changes regarding
fines reduction in the Federal Register in accordance 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. 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. Additionaly, 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 and in compliance with the MOU; (2) it 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: (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; 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 the carrier's PL,
indicate the carrier has made a good faith effort to improve screening
of its passengers. The proposed MOU is attached as an appendix to this
proposed rule.
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 273(d) of the Act, nor under
any provisions other than sections 273(a) and (b) of the Act.
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 merely removes any ambiguity between the
current regulations and section 273 of the Act.
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, and has been submitted to the Office of Management and Budget
for review under E.O. 12866.
Executive Order 12612
The regulation proposed herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications
[[Page 29325]]
to warrant the preparation of a Federalism Assessment.
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 proposed to be 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 section 273(d) of the Act, nor
under any provision other than sections 273(a) 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 ensure that adequate steps are taken to prevent the
boarding of improperly documented aliens destined to the United States
by implementing the following procedures:
(1) Screening passengers by carrier personnel prior to boarding and
examining 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, that 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 identification.
(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 In-
Transit Lounge (ITL) Programs.
(iii) Providing an adequate 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. 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.
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 to 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.
Dated: May 29, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
Note: The appendixes A and B 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 undertakings of each
party to improve the performance of the Carrier with respect to its
[[Page 29326]]
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 for three years from such date.
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. The INS may terminate this MOU for the
Carrier's failure to abide by its terms. Either party may terminate
this MOU, for any reasons, with 30 days written notice. Any
subsequent fines will be imposed for the full penalty amount.
Appendix B--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 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.
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 and facsimile number.
1.5 The Carrier shall require that all of its employees,
including its representatives, follow the stipulations of this MOU,
and comply with all requirements of the Act. The Carrier also agrees
to cooperate with the INS by facilitating an open exchange of
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 refers to 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 for the
subsequent period.
2.4 The Carrier agrees to select a person from its organization
as a contact point with 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 and facsimile
number.
3. Carrier Agreement
3.1 The Carrier shall refuse to carry any improperly documented
passenger.
3.2 The Carrier agrees to verify that trained personnel examine
and screen passengers' travel documents to verify 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 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, when
permitted by competent local authorities.
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 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.
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.
3.8 The Carrier shall maintain an adequate 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.
3.12 The Carrier agrees to expeditiously respond to written
requests from the appropriate INS official(s) for information
pertaining to the identify, itinerary and seating arrangements of
individual passengers. The Carrier also agrees to provide manifests
and other information, when permitted by local law, 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.
4. INS Agreement
4.1 The INS agrees to develop an Information Guide to be used
by Carrier personnel at all ports of embarkation before the United
States. The Information Guide will function as a resource to assist
Carrier personnel in determining proper documentary requirements and
detecting fraud.
4.2 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.
[[Page 29327]]
4.3 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.
4.4 The INS shall determine each Carrier's Performance Level
(PL) based on statistical analysis of the Carrier's performance, 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 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 1000.
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\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 fine occurred; or, (2) sufficient evidence was not submitted
to support the imposition of a fine.
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4.5 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 1000.
4.6 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 1000.
4.7 The PL, APL, and APL2 may be recalculated periodically as
deemed necessary, based on Carrier performance during the previous
period(s).
4.8 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.
4.9 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.
4.10 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, 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; and (3) other
evidence, including screening procedure enhancements, technological
or otherwise, to demonstrate the Carriers good faith efforts to
properly screen passengers destined to the United States.
4.11 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 Fine. The Carrier must establish that extenuating
circumstances existed at the time of the violation in order to
receive any further reduction in fine penalties.
4.12 Nothing in this MOU precludes a carrier from seeking
reduction under 8 CFR 273.4.
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(Representative's Signature)
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(Title)
----------------------------------------------------------------------
(Carrier Name)
Dated:-----------------------------------------------------------------
----------------------------------------------------------------------
Assistant Commissioner, Office of Inspections, United States
Immigration and Naturalization Service
Dated:-----------------------------------------------------------------
[FR Doc. 96-14470 Filed 6-7-96; 8:45 am]
BILLING CODE 4410-10-M
