[Federal Register Volume 61, Number 112 (Monday, June 10, 1996)]
[Proposed Rules]
[Pages 29323-29327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14470]



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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / 
Proposed Rules

[[Page 29323]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 273

[INS No. 1697-95]
RIN 1115-AD97


Screening Requirements of Carriers

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service (``the Service'') regulations by establishing procedures 
carriers must undertake for the proper screening of passengers at the 
ports of embarkation to become eligible for a reduction, refund, or 
waiver of a fine imposed under section 273 of the Immigration and 
Nationality Act (the Act). This rule is necessary to enable the Service 
to reduce, refund, or waive fines for carriers that have taken 
appropriate measures to properly screen passengers being transported to 
the United States, while continuing to impose financial penalties 
against those carriers that fail to properly screen passengers.

DATES: Written comments must be submitted on or before August 9, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions, Immigration and 
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 
20536, Attention Public Comment Clerk. Please include INS number 1697-
95 on your correspondence to ensure proper and timely handling. Also 
include any written comments you may have concerning the proposed 
Memorandum of Understanding (MOU) and fines levels that are included as 
an appendix to this proposed rule. Comments are available for public 
inspection at the above address by calling 202-514-3048, to arrange for 
an appointment.

FOR FURTHER INFORMATION CONTACT:
Robert F. Hutnick, Assistant Chief Inspector, Immigration and 
Naturalization Service, 425 I Street, NW., Room 7216, Washington, DC 
20536, telephone number (202) 616-7499.

SUPPLEMENTARY INFORMATION:

Background

    The imposition of administrative fines has long been an important 
tool in enforcing the United States immigration laws and safeguarding 
its borders. Both section 273 of the Act and prior law reflect a 
similar Congressional purpose to compel carriers, under pain of 
penalties, to ensure enforcement of, and compliance with, certain 
provisions of the immigration laws. In enacting both section 273 of the 
Act of 1952 and section 16 of the Immigration Act of 1924 (the 
precursor to section 273(a) of the Act of 1952), Congress intended to 
make the carrier ensure compliance with the requirements of the law. 
The carriers have long sought relief from fines by having the Service 
consider extenuating circumstances related to the imposition of fines.
    Prior to the enactment of section 209(a)(6) of the Immigration and 
Nationality Technical Corrections Act of 1994, Public Law 103-416, 
dated October 25, 1994, the Service, by statute, was not permitted to 
reduce, refund, or waive fines imposed under section 273 of the Act 
except pursuant to section 273(c) of the Act where the carrier could, 
to the satisfaction of the Attorney General, demonstrate that it did 
not know, and could not have ascertained by the exercise of reasonable 
diligence, that the individual transported was an alien and that a 
valid passport or visa was required.
    This proposed rule provides procedures carriers must undertake for 
the proper screening of aliens at the port of embarkation to become 
eligible for reduction, refund, or waiver of a fine imposed under 
section 273 of the Act. Nevertheless, it is important to note that 
these are voluntary procedures for carriers. This proposed rule further 
prescribes conditions the Service will consider before reducing, 
refunding, or waiving a fine. Of primary importance will be the 
carrier's performance in screening passengers. The Service will 
determine a carrier's performance record by analyzing statistics on the 
number of improperly documented passengers transported to the United 
States by each carrier compared to the number of alien passengers 
transported.
    This proposed rule will enable the Service to reduce, refund, or 
waive a fine imposed under section 273 of the Act for a carrier that 
demonstrates successful screening procedures by achieving satisfactory 
performance in the transportation of properly documented aliens to the 
United States. This will enable the Service to reduce, refund, or waive 
fines for carriers that have taken appropriate measures to properly 
screen passengers while continuing to impose financial penalties on 
carriers that fail to properly screen passengers. It is important to 
note that the proposed rule does not impose any additional standards on 
the carriers. Carriers are free to observe current fines procedures.
    The Service wishes to maintain flexibility in assessing the success 
of a carrier's screening procedures. The Service has devised an initial 
means of measurement, as set forth in the following paragraphs, but 
will re-examine this strategy if such re-examination is appropriate. 
The Service is committed to working with the carriers and will consult 
with them on any contemplated changes in the method of assessment. This 
methodology described, therefore, is not included in the regulatory 
language.
    Under the proposed methodology, a carrier's performance level (PL) 
will be determined by taking the number of each carrier's nonimmigrant 
violations of section 273 of the Act for a fiscal year and dividing 
this by the number of documented nonimmigrants transported by the 
carrier and multiplying the result by 1000.
    The Service shall establish an Acceptable Performance Level (APL), 
based on statistical analysis of the performance of all carriers, as a 
means of evaluating whether the carrier has successfully screened all 
of its passengers in accordance with 8 CFR 273.3. The APL shall be 
determined by taking the total number of all carrier nonimmigrant 
violations of section 273 of the Act for a fiscal year and dividing 
this by the total number of documented nonimmigrants transported by all 
carriers for the same fiscal year and multiplying the result by 1000.
    The Service shall establish a Second Acceptable Performance Level 
(APL2),

[[Page 29324]]

based on statistical analysis of the performance of all carriers at or 
better than the APL, as a means of further evaluating carrier success 
in screening its passengers in accordance with 8 CFR 273.3. Using 
carrier statistics for only those carriers which are at or better than 
the APL, the APL2 shall be determined by taking the total number of 
these carrier nonimmigrant violations of section 273 of the Act for a 
fiscal year and dividing by the total number of documented 
nonimmigrants transported by these carriers for the same fiscal year 
and multiplying the result by 1000.
    Carriers which have achieved a satisfactory PL at or better than 
the APL, as determined by the Service, will be eligible for a 25 
percent fine reduction in the amount of any fine covered by this 
provision if the carrier applies for a reduction, refund, or waiver of 
fines according to the procedures listed in 8 CFR 280.12 and 8 CFR 
280.51. Carriers which have achieved a satisfactory PL at or better 
than the APL2, as determined by the Service, will be eligible for a 50 
percent fine reduction in the amount of any fine covered by this 
provision if the carrier applies for a reduction, refund, or waiver of 
fines according to the procedures listed in 8 CFR 280.12 and 8 CFR 
280.51. Additional factors the Service will consider in determining 
whether the Service will reduce, refund, or waive a fine under section 
273 of the Act and the amount of such reduction, refund, or waiver are 
the carrier's history of fines violations, including fines, liquidated 
damages, and user fee payment records and the existence of any 
extenuating circumstances. In the future, the Service may consider 
other factors in evaluating carrier performance including participation 
in data sharing initiatives or evaluation of a carrier's performance by 
particular port(s) of embarkation and/or route(s) to determine carrier 
fines mitigation levels.
    To maintain flexibility in determining the success of a carrier's 
screening procedures, the Service proposes to include in the regulation 
neither the methodology it will use in determining a carrier's PL, the 
APL, or the APL2 nor the fines reduction percentage levels. Both the 
methodology in determining the success of a carrier's screening 
procedures and the fines reduction percentages will be periodically 
revisited by the Service to maximize carrier cooperation and vigilance 
in their screening procedures. The Service shall compute all carrier 
PLs, the APL, and the APL2 periodically but shall retain the 
flexibility to use a past APL or APL2, if appropriate, in determining 
carrier fines reduction, refunds, or waivers for a specific period(s). 
The Service will publish any significant, adverse changes regarding 
fines reduction in the Federal Register in accordance the 
Administrative Procedure Act (APA) prior to implementation. Maintaining 
a flexible approach allows the Service to work in partnership with the 
carriers toward the mutual goal of decreasing the number of improperly 
documented nonimmigrants transported to the United States.
    Carriers may elect to sign a Memorandum of Understanding (MOU) with 
the Service for the broader application of the reduction, refund, or 
waiver of fines imposed under section 273 of the Act by agreeing to 
perform additional measures to intercept improperly documented aliens 
at ports of embarkation to the United States. Carriers performing these 
additional measures to the satisfaction of the Commissioner would be 
eligible for automatic fine reductions, refunds, or waivers as 
prescribed in the MOU. Carriers signatory to the MOU with the Service 
would be eligible for an automatic fine reduction of 25 or 50 percent 
depending on whether a carrier's PL is at or better than the APL or 
APL2 respectively, as determined by the Service. Carriers not signatory 
to an MOU would not be eligible for automatic fine reductions, refunds, 
or waivers. Nevertheless, this rule does not preclude any carrier, 
whether or not signatory to the MOU, from requesting fines reduction, 
refund, or waiver according to the procedures listed in 8 CFR 280.12 
and 8 CFR 280.51. Additionaly, if the carrier's PL is not at or better 
than the APL, the carrier may receive an automatic fine reduction of 25 
percent, if it meets certain conditions, including: (1) It is signatory 
to and in compliance with the MOU; (2) it submits evidence that it has 
taken extensive measures to prevent the transport of improperly 
documented passengers to the United States. This evidence shall be 
submitted to the Assistant Commissioner for Inspections for 
consideration. Evidence may include, but is not limited to, the 
following: (a) Information regarding the carrier's document screening 
training program, including attendance of the carrier's personnel in 
any Service, Department of State, or other training programs, the 
number of employees trained, and a description of the training program; 
(b) information regarding the date and number of improperly documented 
aliens intercepted by the carrier at the port(s) of embarkation, 
including, but not limited to, the alien's name, date of birth, 
passport nationality, passport number, other travel document 
information, reason boarding was refused, and port of embarkation; and, 
(c) any other evidence to demonstrate the carrier's efforts to properly 
screen passengers destined for the United States; and (3) it appears to 
the satisfaction of the Assistant Commissioner for Inspections that 
other Service data and information, including the carrier's PL, 
indicate the carrier has made a good faith effort to improve screening 
of its passengers. The proposed MOU is attached as an appendix to this 
proposed rule.
    The levels for fines mitigation are loosely based on the Canadian 
fines mitigation system. Based on performance levels of the carriers, 
the Canadian system provides for an automatic fines reduction of 25 
percent upon the carrier signing an MOU with the Canadian Government. 
Through attaining performance standards established in the Canadian 
MOU, carriers can earn further reductions of 50, 75, or 100 percent of 
their fines.
    This rule further clarifies fines imposed under section 273(d) of 
the Act by stating that provisions of section 273(e) of the Act do not 
apply to any fine imposed under section 273(d) of the Act, nor under 
any provisions other than sections 273(a) and (b) of the Act.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have significant economic impact on a substantial number of 
small entities. This rule merely removes any ambiguity between the 
current regulations and section 273 of the Act.

Executive Order 12866

    This rule is considered by the Department of Justice, Immigration 
and Naturalization Service, to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review, and has been submitted to the Office of Management and Budget 
for review under E.O. 12866.

Executive Order 12612

    The regulation proposed herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
does not have sufficient federalism implications

[[Page 29325]]

to warrant the preparation of a Federalism Assessment.

List of Subjects in 8 CFR Part 273

    Administrative practice and procedure, Aliens, Carriers, Penalties.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended by adding a new part 273 as 
follows:

PART 273--CARRIER RESPONSIBILITIES AT FOREIGN PORTS OF EMBARKATION; 
REDUCING, REFUNDING, OR WAIVING FINES UNDER SECTION 273 OF THE ACT

Sec.
273.1  General.
273.2  Definition.
273.3  Screening procedures.
273.4  Demonstration by carrier that screening requirements were 
met.
273.5  General criteria used for reduction, refund, or waiver of 
fines.
273.6  Memorandum of Understanding.

    Authority: 8 U.S.C. 1103, 1323; 8 CFR part 2.


Sec. 273.1  General.

    In any fines case in which a fine is imposed under section 273 of 
the Act involving an alien brought to the United States after December 
24, 1994, the carrier may seek a reduction, refund, or waiver of fine, 
as provided for by section 273(e) of the Act, in accordance with this 
part. The provisions of section 273(e) of the Act and of this part do 
not apply to any fine imposed under section 273(d) of the Act, nor 
under any provision other than sections 273(a) and (b) of the Act.


Sec. 273.2  Definition.

    As used in this part, the term Carrier means an individual or 
organization engaged in transporting passengers or goods for hire to 
the United States.


Sec. 273.3  Screening procedures.

    (a) Applicability. The terms and conditions contained in paragraph 
(b) of this section apply to those owners, operators, or agents of 
carriers which transport passengers to the United States.
    (b) Procedures at ports of embarkation. At each port of embarkation 
carriers shall ensure that adequate steps are taken to prevent the 
boarding of improperly documented aliens destined to the United States 
by implementing the following procedures:
    (1) Screening passengers by carrier personnel prior to boarding and 
examining their travel documents to ensure that:
    (i) The passport or travel document presented is not expired and is 
valid for entry into the United States;
    (ii) The passenger is the rightful holder; and
    (iii) If the passenger requires a visa, that the visa is valid for 
the holder and any other accompanying passengers named in the passport.
    (2) Refusing to board any passenger determined to be improperly 
documented. Failure to refuse boarding when advised to do so by a 
Service or Consular Officer may be considered by the Service as a 
factor in its evaluation of applications under Sec. 273.5.
    (3) Implementing additional safeguards such as, but not necessarily 
limited to, the following:
    (i) For instances in which the carrier suspects fraud, assessing 
the adequacy of the documents presented by asking additional, pertinent 
questions or by taking other appropriate steps to corroborate the 
identity of passengers, such as requesting secondary identification.
    (ii) Conducting a second check of passenger documents, when 
necessary at high-risk ports of embarkation, at the time of boarding to 
verify that all passengers are properly documented consistent with 
paragraph (b)(1) of this section. This includes a recheck of documents 
at the final foreign port of embarkation for all passengers including 
those originally boarded at a prior stop or who are being transported 
to the United States under the Transit Without Visa (TWOV) or In-
Transit Lounge (ITL) Programs.
    (iii) Providing an adequate level of security during the boarding 
process so that passengers are unable to circumvent any carrier 
document checks.


Sec. 273.4  Demonstration by carrier that screening requirements were 
met.

    (a) To be eligible to apply for reduction, refund, or waiver of a 
fine, the carrier shall provide evidence that it screened all 
passengers on the conveyance for the instant flight or voyage in 
accordance with the procedures listed in Sec. 273.3
    (b) The Service may, at any time, conduct an inspection of a 
carrier's document screening procedures at ports of embarkation to 
determine compliance with the procedures listed in Sec. 273.3. If the 
carrier's port of embarkation operation is found not to be in 
compliance, the carrier will be notified by the Service that its fines 
will not be eligible for refund, reduction, or waiver of fines under 
section 273(e) of the Act unless the carrier can establish that lack of 
compliance was beyond the carrier's control.


Sec. 273.5  General criteria used for reduction, refund, or waiver of 
fines.

    (a) Upon application by the carrier, the Service shall determine 
whether circumstances exist which would justify a reduction, refund, or 
waiver of fines pursuant to section 273(e) of the Act.
    (b) Applications for reduction, refund, or waiver of fine under 
section 273(e) of the Act shall be made in accordance with the 
procedures outlined in 8 CFR 280.12 and 8 CFR 280.51.
    (c) In determining the amount of the fine reduction, refund, or 
waiver, the Service shall consider:
    (1) The effectiveness of the carrier's screening procedures;
    (2) The carrier's history of fines violations, including fines, 
liquidated damages, and user fee payment records; and,
    (3) The existence of any extenuating circumstances.


Sec. 273.6  Memorandum of Understanding.

    (a) Carriers may apply to enter into a Memorandum of Understanding 
(MOU) with the Service for an automatic reduction, refund, or waiver of 
fines imposed under section 273 of the Act.
    (b) Carriers signatory to an MOU will to be required to apply for 
reduction, refund, or waiver of fines in accordance with the procedures 
outlined in 8 CFR 280.12 and 8 CFR 280.51, but will follow procedures 
as set forth in the MOU.
    (c) Carriers signatory to an MOU will have fines reduced, refunded, 
or waived according to performance standards enumerated in the MOU or 
as determined by the Service.
    (d) Carriers signatory to an MOU are not precluded from seeking 
additional reduction, refund, or waiver of fines in accordance with the 
procedures outlined in 8 CFR 280.12 and 8 CFR 280.51.

    Dated: May 29, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.

    Note: The appendixes A and B will not appear in the Code of 
Federal Regulations.

Appendix A--United States Immigration and Naturalization Service 
Section 273(E) Memorandum of Understanding

    This voluntary Memorandum of Understanding (MOU) is made between 
____________________ (hereafter referred to as the ``Carrier'') and 
the United States Immigration and Naturalization Service (hereafter 
referred to as the ``INS'').
    The purpose of this MOU is to identify the undertakings of each 
party to improve the performance of the Carrier with respect to its

[[Page 29326]]

duty under section 273 of the Immigration and Nationality Act (the 
Act) to prevent the transport of improperly documented aliens to the 
United States. Based on the Carrier's Performance Level (PL) in 
comparison to the Acceptable Performance Level (APL) or Second APL 
(APL2) set by the INS, and based upon compliance with the other 
stipulations outlined in the MOU, the INS may refund, reduce or 
waive a part of the Carrier's section 273 of the Act administrative 
penalties.
    The MOU cannot, by law, exempt the Carrier from liability for 
civil penalties. Although taking the steps set forth below will not 
relieve the Carrier of liability from penalties, the extent to which 
the Carrier has complied with this MOU will be considered as a 
factor in cases where the INS may reduce, refund, or waive a fine.
    It is understood and agreed by the parties that this MOU is not 
intended to be legally enforceable by either party. No claims, 
liabilities, or rights shall arise from or with respect to this MOU 
except as provided for in the Act or the Code of Federal 
Regulations. Nothing in this MOU relieves the Carrier of any 
responsibilities with respect to United States laws, the Act, or the 
Code of Federal Regulations.
    This document, once jointly endorsed, will serve as a working 
agreement to be utilized for all fines cases relating to section 273 
of the Act, and reflects the mutual understanding of the Carrier and 
the INS. This MOU shall take effect immediately upon its approval by 
the Assistant Commissioner for Inspections and shall be a valid 
working document for three years from such date.
    The Carrier's compliance with the MOU shall be evaluated 
periodically. The Carrier shall be notified in writing of its PL and 
the overall APL for each rating period. Accordingly, the Carrier 
agrees to begin prompt and complete implementation of all of the 
terms listed in this MOU. The INS may terminate this MOU for the 
Carrier's failure to abide by its terms. Either party may terminate 
this MOU, for any reasons, with 30 days written notice. Any 
subsequent fines will be imposed for the full penalty amount.

Appendix B--Memorandum of Understanding

1. Introduction

    1.1  The Assistant Commissioner for Inspections shall exercise 
oversight regarding the Carrier's compliance with this MOU.
    1.2  The Carrier agrees to begin implementation of the 
provisions set forth below immediately upon receipt of the MOU 
signed by the Assistant Commissioner for Inspections.
    1.3  The Carrier agrees to permit the INS to monitor its 
compliance with the terms of this MOU. The Carrier shall permit the 
INS to conduct an inspection of the Carrier's document screening 
procedures at ports of embarkation before arrival in the United 
States, to determine compliance with the procedures listed in this 
MOU.
    1.4  The Carrier agrees to designate a coordinator to be the 
contact point for all issues arising from the implementation of this 
MOU. The Carrier shall provide the INS with the coordinator's name, 
title, address, telephone and facsimile number.
    1.5  The Carrier shall require that all of its employees, 
including its representatives, follow the stipulations of this MOU, 
and comply with all requirements of the Act. The Carrier also agrees 
to cooperate with the INS by facilitating an open exchange of 
information.

2. Prompt Payment

    2.1  The INS agrees to authorize a reduction in fine penalties 
based on compliance with this MOU only if the Carrier has paid all 
administrative fines, liquidated damages and user fees. This 
includes interest and penalties that have been imposed by either a 
formal order or final decision, except cases on appeal.
    2.2  The Carrier agrees to promptly pay all administrative 
fines, liquidated damages and user fees. This includes interest and 
penalties that are imposed by a formal order or a final decision 
during the time this MOU is in effect, except cases on appeal. 
Prompt payment for the purposes of this MOU refers to payments made 
within 30 days from the date of billing.
    2.3  The INS shall periodically review the Carrier's record of 
prompt payment for administrative fines, liquidated damages, and 
user fees including interest and penalties. Failure to make prompt 
payment will result in the loss of benefits of the MOU for the 
subsequent period.
    2.4  The Carrier agrees to select a person from its organization 
as a contact point with the INS Office of Finance for the resolution 
of payment issues. The Carrier shall provide the INS with the 
contact person's name, title, address, telephone and facsimile 
number.

3. Carrier Agreement

    3.1  The Carrier shall refuse to carry any improperly documented 
passenger.
    3.2  The Carrier agrees to verify that trained personnel examine 
and screen passengers' travel documents to verify that the passport, 
visa (if one is required) or other travel documents presented are 
valid and unexpired, and that the passenger, and any accompanying 
passenger named in the passport, is the rightful holder of the 
document.
    3.3  The Carrier agrees to conduct additional document checks 
when deemed appropriate, to verify that all passengers, including 
transit passengers, are in possession of their own, and proper, 
travel documents as they board the aircraft, and to identify any 
fraudulent documents.
    3.4  The Carrier agrees to permit INS and State Department 
Consular officials to screen passengers' travel documents before or 
after the Carrier has screened those passengers for boarding, when 
permitted by competent local authorities.
    3.5  In cases involving suspected fraud the Carrier shall assess 
the adequacy of the documents presented by questioning individuals 
or by taking other appropriate steps to corroborate the identity of 
the passengers, such as requesting secondary identification.
    3.6  The Carrier shall refuse to knowingly transport any 
individual who has been determined by an INS official not to be in 
possession of proper documentation to enter or pass through the 
United States. Transporting any improperly documented passenger so 
identified may result in a civil penalty. At locations where there 
is no INS presence, carriers may request State Department Consular 
officials to examine and advise on authenticity of passenger 
documentation. State Department Consular officials will act in an 
advisory capacity only.
    3.7  Where the Carrier has refused to board a passenger based on 
a suspicion of fraud or other lack of proper documentation, the 
Carrier agrees to make every effort to notify other carriers at that 
port of embarkation.
    3.8  The Carrier shall maintain an adequate level of security 
designed to prevent passengers from circumventing any Carrier 
document checks. The Carrier shall also maintain an adequate level 
of security designed to prevent stowaways from boarding the 
Carrier's aircraft or vessel.
    3.9  The Carrier agrees to participate in INS training programs 
and utilize INS Information Guides and other information provided by 
the INS to assist the Carrier in determining documentary 
requirements and detecting fraud.
    3.10  The Carrier agrees to make the INS Information Guides and 
other information provided by the INS readily available for use by 
Carrier personnel, at every port of embarkation.
    3.11  The Carrier agrees to make appropriate use of 
technological aids in screening documents including ultra violet 
lights, magnification devices, or other equipment identified by the 
INS to screen documents.
    3.12  The Carrier agrees to expeditiously respond to written 
requests from the appropriate INS official(s) for information 
pertaining to the identify, itinerary and seating arrangements of 
individual passengers. The Carrier also agrees to provide manifests 
and other information, when permitted by local law, required to 
identify passengers, information and evidence regarding the identity 
and method of concealment of a stowaway, and information regarding 
any organized alien smuggling activity.
    3.13  Upon arrival at a Port-of-Entry (POE) and prior to 
inspection, the Carrier agrees to notify INS personnel at the POE of 
any unusual circumstances, incidents, or problems at the port of 
embarkation involving the transportation of improperly documented 
aliens to the United States.

4. INS Agreement

    4.1  The INS agrees to develop an Information Guide to be used 
by Carrier personnel at all ports of embarkation before the United 
States. The Information Guide will function as a resource to assist 
Carrier personnel in determining proper documentary requirements and 
detecting fraud.
    4.2  The INS agrees to develop a formal, continuing training 
program to assist carriers in their screening of passengers. 
Carriers may provide input to the INS concerning specific training 
needs that they have identified. Initial and annual refresher 
training will be conducted by the INS or Carrier representatives 
trained by the INS.

[[Page 29327]]

    4.3  To the extent possible, INS and State Department Consular 
officials will consult, support, and assist the Carrier's efforts to 
screen passengers prior to boarding.
    4.4  The INS shall determine each Carrier's Performance Level 
(PL) based on statistical analysis of the Carrier's performance, as 
a means of evaluating whether the Carrier has successfully screened 
all of its passengers in accordance with 8 CFR 273.3 and this MOU. 
The PL is determined by taking the number of each Carrier's 
violations of section 273 of the Act for a fiscal year \1\ and 
dividing this by the number of documented nonimmigrants (i.e., those 
nonimmigrants that submit an Arrival/Departure Record, Form I-94, I-
94T, or I-94W) transported by the Carrier and multiplying the result 
by 1000.
---------------------------------------------------------------------------

    \1\ The total number of carrier violations of section 273 of the 
Act for a fiscal year is determined by taking the total number of 
violations minus violations for the transportation of improperly 
documented lawful permanent residents and rejected cases. Rejected 
cases include those cases where the INS has determined that either: 
(1) No fine occurred; or, (2) sufficient evidence was not submitted 
to support the imposition of a fine.
---------------------------------------------------------------------------

    4.5  The INS shall establish an Acceptable Performance Level 
(APL), based on statistical analysis of the performance of all 
carriers, as a means of evaluating whether the Carrier has 
successfully screened all of its passengers in accordance with 8 CFR 
273.3 and this MOU. The APL shall be determined by taking the total 
number of all carrier violations of section 273 of the Act for a 
fiscal year \1\ and dividing this by the total number of documented 
nonimmigrants (i.e., those nonimmigrants that submit an Arrival/
Departure Record, Form I-94, I-94T, or I-94W) transported by all 
carriers for a fiscal year and multiplying the result by 1000.
    4.6  The INS shall establish a Second Acceptable Performance 
Level (APL2), based on statistical analysis of the performance of 
all carriers at or better than the APL, as a means of further 
evaluating carrier success in screening its passengers in accordance 
with 8 CFR 273.3 and this MOU. Using carrier statistics for only 
those carriers which are at or better than the APL, the APL2 shall 
be determined by taking the total number of these carrier violations 
of section 273 of the Act for a fiscal year \1\ and dividing by the 
total number of documented nonimmigrants (i.e., those nonimmigrants 
that submit an Arrival/Departure Record, Form I-94, I-94T, or I-94W) 
transported by these carriers and multiplying the result by 1000.
    4.7  The PL, APL, and APL2 may be recalculated periodically as 
deemed necessary, based on Carrier performance during the previous 
period(s).
    4.8  Carriers whose PL is at or better than the APL are eligible 
to receive an automatic 25 percent reduction, if signatory to and in 
compliance with this MOU, on fines imposed under section 273 of the 
Act for periods determined by the INS.
    4.9  Carriers whose PL is at or better than the APL2 are 
eligible to receive an automatic 50 percent reduction, if signatory 
to and in compliance with this MOU, on fines imposed under section 
273 of the Act for periods determined by the INS.
    4.10  If the Carrier's PL is not at or better than the APL, the 
Carrier may receive an automatic 25 percent reduction in fines, if 
it meets certain conditions, including being signatory to and in 
compliance with the MOU and the carrier submits evidence that it has 
taken extensive measures to prevent the transport of improperly 
documented passengers to the United States. This evidence shall be 
submitted to the Assistant Commissioner for Inspections for 
consideration. Evidence may include, but is not limited to, the 
following: (1) Information regarding the Carrier's training program, 
including participation of the Carrier's personnel in any INS, DOS, 
or other training programs and the number of employees trained; (2) 
information regarding the date and number of improperly documented 
aliens intercepted by the Carrier at the port(s) of embarkation, 
including, but not limited to, the aliens' name, date of birth, 
passport nationality, passport number or other travel document 
information, and reason boarding was refused; and (3) other 
evidence, including screening procedure enhancements, technological 
or otherwise, to demonstrate the Carriers good faith efforts to 
properly screen passengers destined to the United States.
    4.11  The Carrier may defend against imposition or seek further 
reduction of an administrative fine if the case is timely defended 
pursuant to 8 CFR part 280, in response to the Form I-79, Notice of 
Intent to Fine. The Carrier must establish that extenuating 
circumstances existed at the time of the violation in order to 
receive any further reduction in fine penalties.
    4.12  Nothing in this MOU precludes a carrier from seeking 
reduction under 8 CFR 273.4.

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(Representative's Signature)

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(Title)

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(Carrier Name)

Dated:-----------------------------------------------------------------

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Assistant Commissioner, Office of Inspections, United States 
Immigration and Naturalization Service

Dated:-----------------------------------------------------------------

[FR Doc. 96-14470 Filed 6-7-96; 8:45 am]
BILLING CODE 4410-10-M