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.

Rules and Regulations Federal Register

23643

Vol. 63, No. 83

Thursday, April 30, 1998

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 reexamine this strategy if such reexamination 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
23644 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

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
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 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.
23646 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

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, § 4, as

amended by Debt Collection

Improvement Act of 1996, Pub. L. No.

104–134, ch. 10, § 31001(s)(1)(A), 110

Stat. 1321, lll (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
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 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 documentdestroyers, 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
23648 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

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 documentdestroyers 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 decisionmaking.

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:
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 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-ofEntry.

Eleven respondents cite § 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 § 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 § 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 § 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
23650 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

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-ofEntry; and, (4) the different statutes

themselves. The United States Ports-ofEntry 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 documentdestroyers’ 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 documentdestroyers 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
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 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-toInternational (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

§ 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 § 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 § 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 INSprescribed 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
23652 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

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 upfront reductions established by the PL of

the carrier. Thus, carriers meeting the

first two requirements enumerated in

§ 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-ofEntry. 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 recomputing 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
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 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
23654 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

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 foreignbased 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.
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 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.

§ 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.

§ 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.

§ 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 § 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 Internationalto-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.

§ 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 § 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 § 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.

§ 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.

§ 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.
23656 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

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

llllllllll (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.
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 23657

1The 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.

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.

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.

lllllllllllllllllllll

(Representative’s Signature)

lllllllllllllllllllll

(Title)

lllllllllllllllllllll

(Carrier Name)

Dated: lllllllllllllllll

lllllllllllllllllllll

Assistant Commissioner, Office of Inspection,

United States Immigration and Naturalization

Service.

Dated: lllllllllllllllll

[FR Doc. 98–11481 Filed 4–29–98; 8:45 am]

BILLING CODE 4410–10–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 97–CE–134–AD; Amendment

39–10505; AD 98–09–24]

RIN 2120–AA64

Airworthiness Directives; Diamond

Aircraft Industries Models H–36

‘‘Dimona’’ and HK 36 R ‘‘Super

Dimona’’ Sailplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule.

SUMMARY: This amendment adopts a

new airworthiness directive (AD) that

applies to certain Diamond Aircraft

Industries (Diamond) Models H–36

‘‘Dimona’’ and HK 36 R ‘‘Super

Dimona’’ sailplanes. This AD requires:

inspecting the elevator rib area for

damage on certain Models H–36

‘‘Dimona’’ and HK 36 R ‘‘Super