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.

Proposed Rules Federal Register

29323

Vol. 61, No. 112

Monday, June 10, 1996

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.

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 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. 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),
29324 Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Proposed Rules

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

§ 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.

§ 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 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 § 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.

§ 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. 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.

§ 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

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

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

undertakings of each party to improve the

performance of the Carrier with respect to its
29326 Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Proposed Rules

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.
Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Proposed Rules 29327

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

fine occurred; or, (2) sufficient evidence was not

submitted to support the imposition of a fine.

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.

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.

lllllllllllllllllllll

(Representative’s Signature)

lllllllllllllllllllll

(Title)

lllllllllllllllllllll

(Carrier Name)

Dated: lllllllllllllllll

lllllllllllllllllllll

Assistant Commissioner, Office of

Inspections, United States Immigration and

Naturalization Service

Dated: lllllllllllllllll

[FR Doc. 96–14470 Filed 6–7–96; 8:45 am]

BILLING CODE 4410–10–M

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 161

RIN 1076–AC81

Navajo Partitioned Land Grazing

Regulations

AGENCY: Bureau of Indian Affairs,

Department of the Interior.

ACTION: Proposed Rule; reopening of

comment period and additional request

for comments.

SUMMARY: The comment period on the

Department’s proposed rule to 25 C.F.R.

to govern the grazing of livestock on the

Navajo Partitioned Land (NPL) of the

Navajo-Hopi Former Joint Use Area

(FJUA) of the 1882 Executive Order

reservation is reopened to provide

additional opportunity for public

comment. Comments on this issue will

be considered along with comments on

the proposed rule published in the

Federal Register on November 1, 1995.

DATES: Comments on these proposed

rules must be submitted September 9,

1996.

ADDRESSES: Send comments to Bureau

of Indian Affairs, Division of Water and

Land Resources, Mail Stop: 4559–MIB,

1849 C Street, NW., Washington, DC

20240, or telephone number (202) 208–

4004.

FOR FURTHER INFORMATION CONTACT:

Robert Curley, (602) 871–5151, Ext.

5105, at the Navajo Area Office in

Window Rock, Arizona.

SUPPLEMENTARY INFORMATION: The

proposed rule was originally published

in the Federal Register November 1,

1995 (60 FR 55507). The original

comment period ended on January 2,

1996. Since the opening of the comment

period considerable input has been

received from the Navajo and Hopi

Tribes. Due to the remoteness of the

location and the inclement weather a

large number of Tribal members have

not been able to include their written

comments. The reopening of this

comment period for a period of 90 days

will allow for maximum input from the

public.

Dated: April 8, 1996.

Ada E. Deer,

Assistant Secretary—Indian Affairs.

[FR Doc. 96–14549 Filed 6–7–96; 8:45 am]

BILLING CODE 4310–02–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Public Health Service

42 CFR Part 72

RIN 0905–AE70

Additional Requirements for Facilities

Transferring or Receiving Select

Infectious Agents

AGENCY: Centers for Disease Control and

Prevention (CDC), Public Health Service

(PHS), Department of Health and

Human Services (HHS).

ACTION: Notice of proposed rulemaking.

SUMMARY: This proposed rule is being

promulgated in accordance with Section