DOCUMENT NUMBER: FR 57-94

FEDERAL REGISTER CITE:     59 FR 49347

DATE PUBLISHED:     September 28, 1994

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 286

[INS No. 1392-93]

RIN 1115-AA-30

Immigration User Fee; Remittance Requirements

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule publishes changes to requirements related to the Immigration User Fee Account (IUFA). The rule amends existing regulations to comply with the 1991 and 1994 Department of Justice Appropriations Acts. In addition, this rule changes where remittances shall be sent; requires additional information in the remittance and statement procedures for fees; clarifies how remittances shall be paid; and makes a nomenclature change. Two minor technical corrections are also being made to correct errors in the t ext of the regulations.

EFFECTIVE DATE: October 28, 1994.

FOR FURTHER INFORMATION CONTACT: Michael Natchuras, Budget Analyst, Fee Analysis and Operations Branch, Office of Finance, Office of Budget, Immigration and Naturalization Service (INS), 425 I Street NW., Room 6307, Washington, DC 0536-0002, telephone (0) (202) 616-2754.

SUPPLEMENTARY INFORMATION:

I. Introduction

The INS published a proposed rule on February 15, 1994, at 59 FR 7227, making changes to requirements related to the Immigration User Fee Account. The proposed rule was published with a 60-day comment period. The public had the opportunity to comment on the proposed rule through April 18, 1994. Changes in current regulations are needed to make the regulations consistent with current law, and establish requirements for fee collection data and remittance information. In addition, the final rule implements a nomenclature change throughout 8 CFR 86 to remove the word "Comptroller" and to put in its place the words "Associate Commissioner, Finance," and makes two other technical corrections.

Comments were received from seven commenters, including three industry associations. All the comments were carefully considered before preparing this final rule. Following is a discussion of the comments.

II. Summary of Comments

A. Monthly Summary Statement Requirement

Five commenters expressed dissatisfaction with this reporting requirement. One commenter expressed agreement in principal with the proposed submission of monthly information related to the Immigration User Fees collected.

The commenters who expressed dissatisfaction with the reporting requirement indicated that the monthly requirement would add an additional and costly reporting burden which would duplicate a quarterly remittance statement, and would require carrier-ticketing information which is considered to be "commercially confidential." One commenter indicated that there would be timing difficulty in reporting information as required in the proposed rule, given the dates airlines receive domestic and international sales reports.

Along these same lines, another commenter suggested that carriers be given at least 1 month to submit a report. Further, two commenters noted that the universal scope of the requirement should be limited if the reporting requirement is published as a final rule. One of these suggested that the requirement apply to high-volume carriers; the other suggested that it be applicable to carriers who consistently fail to remit fees. Another of the comments suggested that, should the monthly reporting requirement be implemented, it should include a "sunset" provision to discontinue the requirement after 2 years subject to evaluation of the benefits in relation to the costs.

The commenter that supported the requirement believed that the monthly submission of a summary report for each month's collections would assist the INS in developing more accurate budgets and in allocating funds for staff and equipment as traffic patterns change. The INS continues to believe that, in order to improve its financial management of the IUFA, it must have some indication of fee remittances in advance of their receipt. Therefore, a report of net monthly collections will be required. As a result of the type and timing of remittance data available, there has been difficulty in making resource estimates. Remittances to INS represent passengers who purchased tickets during the remittance period, which is not necessarily the same period in which the passenger will travel.

The INS data are limited to the number of persons inspected and actual remittances. Since the remittances are made on a quarterly basis, there is not timely information with which to make accurate collection projections. For example, even though the fiscal year starts on October 1, the first remittances for the fiscal year are not due until January 31 of each year.

Historically, the bulk of these collections are received in February and accounting records report them in March. Hence, it is mid-March before any picture of actual collections comes into focus. The mid-point of the year is very late in the fiscal year to be making program and budget changes.

Concerning the comment which suggested that the monthly reporting requirement and the statement which accompanies remittances are duplicative, INS believes that there is a misunderstanding concerning the purpose of each document. The monthly report is to serve as a predictor of the amount of funds to be received, while the remittance statement provides detailed information pertaining to a specific actual remittance. Each document has a separate, unique, and identifiable purpose.

However, in response to the public's comments, INS is making the following changes. The INS will not require a reporting of the number of ticket sales, given issues related to commercial confidentiality. In addition, in order to ease the reporting burden, a report of remittances will be required only for carriers or ticket-selling agents whose fee collections exceed $50,000 a month. Further, in response to the issue of duplication of reporting requirements, INS is making an additional change. Since the q uarterly remittance statement includes information for the last month in a given quarter, a separate monthly report will not be required for those months.

This means that monthly reporting will be required for the months of October, November, January, February, April, May, July, and September. In order to allow more reporting time, the report will be due to INS on the last business day of the following month.

Finally, with regard to the suggestion to "sunset" the monthly reporting requirement, INS seriously considered this comment. However, INS believes this to be an ongoing requirement which is needed to adequately manage the account. Should the information become available from other sources, or should some other matters arise, INS will reevaluate the requirement and modify the regulations as appropriate.

B. Record Retention Period

Three commenters addressed the proposed 5-year record-retention period. Each commenter indicated the extended retention period was burdensome and costly, and that it exceeded the requirements of other Federal agencies. In view of the comments received, the current 2-year retention period will remain in effect.

One commenter noted that the proposed rule did not specify the type of records and documents which must be kept. In response to this comment, INS provides the following guidance. Each collector and remitter should maintain records necessary for the carrier to demonstrate to the INS the accuracy of fees collected and remitted, and to otherwise determine compliance with applicable statutes and regulations. Modern technology available to achieve this result may be utilized.

C. Fourth Quarter Remittance of Fees

Two commenters addressed the remittance deadline for fourth quarter immigration user fees. One commenter objected to the September 20 due date for the remittance of fourth quarter fees. A second suggested that the final rule clarify that the fourth quarter remittance should include collections from the months of July and August for that year.

The rule establishes the fourth quarter remittance due dates in order to make the regulation consistent with a statutory change. The 1991 Department of Justice Appropriations Act (Public Law 101-515, November 5, 1990), as amended by section 309(a)(2)(b) of Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (Pub. L. 102-232, December 12, 1991), changed the remittance schedule for the fourth quarter.

D. Change in the Immigration User Fee

One commenter urged that the Immigration User Fee not be raised from $5.00 to $6.00 per passenger. The change in the User Fee is mandated by statute. The 1994 Department of Justice Appropriations Act (Pub. L. 103-121, October 27, 1993) increased the fee to $6.00 per passenger. The regulation is being changed to be consistent with the law.

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 a significant economic impact on a substantial number of small entities because of the following factors. Most of the regulation updates the CFR to conform with current law. The reporting requirement is constructed so that only major entities are required to report. Further, the informatio n required under this rule should be readily available from business records which must be maintained as a routine business practice.

Executive Order 12866

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, Sec. 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

Executive Order 12612

The regulations adopted herein will not have substantial direct effects on the States, the relationship between the National Government and the States, or 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.

Paperwork Reduction Act

The information collection requirements contained in this rule have been cleared by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. The OMB Clearance number is 1115-0142.

List of Subjects in 8 CFR Part 286

Air carriers, Immigration, Maritime carriers, Reporting and recordkeeping requirements.

Accordingly, part 286 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 286--IMMIGRATION USER FEES

1. The authority citation for part 286 continues to read as follows:

Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.

2. Section 286.2 is revised to read as follows:

Sec. 286.2 Fee for arrival of passengers aboard commercial aircraft or commercial vessels.

(a) Under the provisions of section 286(b) of the Act, a $6.00 fee per individual is charged and collected by the Commissioner for the immigration inspection of each passenger aboard a commercial aircraft or commercial vessel, arriving at a Port-of-Entry in the United States, or for the preinspection of a passenger in a place outside the United States prior to such arrival, except as provided in Sec. 286.3.

(b) Each commercial aircraft and vessel carrier or ticket-selling agent whose monthly collections in any month exceed $50,000 shall submit a summary statement showing the amount of user fees collected that month. The summary statement is due on the last business day of the following month. This information shall be forwarded to the Immigration and Naturalization Service, Chief, Fee Analysis and Operations Branch, 425 I Street, NW., Room 6307, Washington, DC 20536. For the months of December, March, June, and August, the quarterly remittance and statement required by Sec. 286.5 will serve as the monthly report for those months. Therefore, a monthly report is required for all other months in which monthly collections exceed $50,000.

3. In Sec. 286.3 paragraph (a) is revised to read as follows:

Sec. 286.3 Exceptions.

* * * * *

(a) Persons, other than aircraft passengers, whose travel originated in Canada, Mexico, the adjacent islands, and territories or possessions of the United States;

* * * * *

4. In Sec. 286.5 paragraphs (b), (c) and (d) are revised to read as follows:

Sec. 286.5 Remittance and statement procedures.

* * * * *

(b)(1) Fee remittances shall be sent to the Immigration and Naturalization Service, at a designated Treasury depository, for receipt no later than 31 days after the close of the calendar quarter in which the fees are collected, except the fourth quarter payment for fees collected shall be made on the date that is 10 days before the end of the U.S. Government's fiscal year, and the first quarter payment shall include any collections made in the preceding quarter that were not remitted with the previous payme nt. The fourth quarter payment shall include collections for the months of July and August. The fiscal year referenced is the U.S. Government's fiscal year which begins on October 1 and ends on September 30.

(2) Late payments will be subject to interest, penalty, and handling charges as provided in the Debt Collection Act of 1982 (31 U.S.C. 3717). Refunds by a remitter of fees collected in conjunction with unused tickets or documents for transportation shall be netted against the next subsequent remittance.

(c) Along with the remittance, as set forth in paragraph (b) of this section, each remitter making such remittance shall attach a statement which sets forth the following:

(1) Name and address;

(2) Taxpayer identification number;

(3) Calendar quarter covered by the payment;

(4) Interest and penalty charges; and

(5) Total amount collected and remitted.

(d) Remittances shall be made in U.S. dollars by check or money order through a U.S. bank, to Associate Commissioner, Finance, INS.

* * * * *

Secs. 286.1(e), 286.4(c), 286.5(e), and 286.6 [Amended]

5. Secs. 286.1(e), 286.4(c), 286.5(e), and 286.6, are amended by removing the word "Comptroller" and adding in its place "Associate Commissioner, Finance" wherever it appears.

Sec. 286.5(e) [Amended]

6. In Sec. 286.5(e), the first sentence, is amended by removing the word "Auditing" in the title "Statement on Auditing Standards for Attestation Engagement."

Sec. 286.5(g) [Amended]

7. In Sec. 286.5(g), the first sentence, is amended by removing the citation "Sec. 28.4" and adding "Sec. 287.4."

September 22, 1994 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner, Immigration and Naturalization Service.