List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegation (Government agencies), Freedom of Information, Privacy, Reporting, and recordkeeping requirements, Surety bonds.

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 as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF SERVICE RECORDS

1. The authority citation for part 103 continues to read as follows:

Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252 note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR 14874, 15557; 3 CFR, 1982 Comp., p 166; 8 CFR part 2.

2. Section 103.1 is amended by:

a. Removing the period at the end of paragraph (f)(3)(iii)(MM) and inserting a "; and" in its place, and by

b. Adding a new paragraph (f)(3)(iii)(NN), to read as follows:

§ 103.1 Delegations of authority.

* * * * *

(f) * * *

(3) * * *

(iii) * * *

(NN) Suspension of a carrier's privilege to transport some or all aliens to the United States under § 272.7 of this chapter.

* * * * *

PART 273--CARRIER RESPONSIBILITIES AT FOREIGN PORTS OF EMBARKATION; REDUCING, REFUNDING, OR WAIVING FINES UNDER SECTION 273 OF THE ACT; SUSPENSION OF PRIVILEGE TO TRANSPORT ALIENS TO THE UNITED STATES

3. The heading for part 273 is revised as set forth above.

4. The authority citation for part 273 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1201, 1323; 8 CFR part 2.

5. Section 273.7 is added to read as follows:

§ 273.7 Warning of intention to suspend a commercial airline's privilege to transport aliens to the United States.

(a) Transporting aliens with fraudulent documents . When a commercial airline transports to the United States, at a rate that significantly exceeds the industry standard, aliens who, upon arrival at a U.S. Port-of-Entry, are found to be in possession of fraudulent documents that, in the opinion of the Service, the airline should have detected, and the imposition of fines under 8 CFR 280.1 has not resulted in a satisfactory reduction in the airline's violation rate, the Executive Associate Commissioner for Field Operations may issue a warning letter notifying the ca rrier that:

(1) The number or percentage of passengers brought to the United States with fraudulent documents is significantly above the industry standard, demonstrating that the violation rate for the subject carrier over a stated period of time has exceeded the industry standard, and stating the difference between the industry standard and the carrier's violation rate;

(2) The Service is available to provide training to carrier personnel in the detection of fraudulent documents pursuant to section 235A(b) of the Act;

(3) The Service requires the rate of fraudulent document violations for the subject carrier to decrease to an acceptable rate within 120 days of the date of service of the warning letter; and

(4) If 120 days after the date of the warning letter the carrier's fraudulent document violation rate is not an acceptable rate, the Executive Associate Commissioner for Field Operations may cancel the carrier's contracts (Forms I-775, I-425, and I-426) pursuant to section 233 of the Act.

(b) Canceling contracts . (1) If the carrier's fraudulent document violation rate is not at an acceptable level within 120 days of service of the warning letter, the Service may cancel some or all contracts entered into with the carrier pursuant to section 233 of the Act.

(2) The service will inform the carrier that if, within 60 days of the date of cancellation of the contracts, the carrier can demonstrate that it has reduced its fraudulent document rate to an acceptable level, the carrier may request to become signatory to contracts with the Service in accordance with section 233 of the Act. The Service will also warn the carrier that if the carrier cannot demonstrate that it has reduced its fraudulent document rate to an acceptable level within 60 days of the cancellatio n of the contracts, the Service may take action pursuant to paragraph (c) of this section.

(c) Notice of intent to suspend . (1) If 60 days after the Service cancels a carrier's contract pursuant to paragraph (b)(1) of this section, the carrier has not reduced its violation rate to an acceptable level, the Service may issue a notice of intent to suspend the carrier's privilege to transport some or all aliens to the United States or to a particular Port-of-Entry within the United States or from a particular foreign port-of-embarkation. The Service will forward a copy of this notice to the Office of Aviation Programs and Policy, Department of State, EB/TRA/AVP, Washington, DC 20520, with a cover letter requesting that the Department of State (DOS) contact the appropriate foreign government to the extent required under applicable bilateral air services agreements. The United States shall pursue consultations with the government of an implicated airline relative to any potential suspension of a carrier's privilege to transport aliens to the United States. The Service shall not take further action against the airline until DOS has indicated, in writing, that it has no objection to the Service proceeding with the suspension.

(2) The carrier may, within 30 days of the date of service of the notice of intent to suspend, submit written representations under oath supported by documentary evidence setting forth reasons why the carrier's privilege to transport aliens to the United States should not be suspended. The carrier may also, at the time of filing these representations, request in writing, an interview before the Executive Associate Commissioner for Field Operations, or his designee, in support of the written representation s.

(d) Allegations denied . If the carrier denies the allegations in the notice of intent to suspend, then the carrier shall, in its answer, provide all information or evidence on which the answer is based.

(e) Interview requested . (1) If in its answer to the warning letter the carrier requests an interview, the carrier shall be given notice of the date set for the interview.

(2) A summary of the information provided by the carrier at the interview shall be prepared and included in the record, along with all other evidence relied on in the adjudication. In the discretion of the Executive Associate Commissioner for Field Operations, the interview may be recorded.

(f) Decision . The decision will take into consideration any consultations between governments under applicable bilateral air service agreements.

(1) Privilege not suspended . If the carrier demonstrates the required improvement in its fraudulent document violation rate within 30 days of the issuance of the notice of intent to suspend, the Executive Associate Commissioner for Field Operations will notify the carrier that the Service will not, at this time, suspend the privilege of the airline to transport aliens to the United States.

(2) Privilege suspended . If the carrier admits the allegations in the notice of intent to suspend, or if it does not demonstrate, within the 30-day period, the required improvement in its fraudulent document violation rate, the Executive Associate Commissioner for Field Operations may issue a notice to the carrier, suspending the privilege of the carrier to transport some or all aliens to the United States or to a particular Port-of-Entry within the United States or from a particular foreign port-of-embarkation until such time a s the Service has certified that the carrier has substantially complied with the screening standards set forth in § 273.3. This notice will summarize evidence relied on, including evidence submitted by the carrier and other evidence that the Service has and give reasons for the suspension. The notice will also inform the carrier that it will be fined under section 271 of the Act if it continues to transport aliens to the United States in violation of a final administrative suspension order.

(g) Appeal of decision to suspend . The decision to suspend a carrier's privilege to transport aliens may be appealed to the Service's Administrative Appeals Office (AAO) pursuant to § 103.1(f)(3)(iii)(NN) of this chapter. If the decision is appealed, the suspension will not take place until after the appeal is adjudicated by the AAO.

(h) Reinstatement . If a carrier's privilege to transport aliens is suspended in accordance with paragraph (f)(2) of this section, the carrier may have its privilege reinstated by providing evidence that satisfies the Executive Associate Commissioner for Field Operations that it has implemented improved document screening standards as described in § 273.3. The carrier must submit evidence that it has taken extensive measures to prevent the transport of improperly documented passengers to the United States. Such evidence ma y include but is not limited to:

(1) Information regarding the carrier's document screening training program, including attendance of the carrier's personnel in any Service, DOS, 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 passengers bound for countries other than the United States intercepted by the carrier at the port(s) of embarkation, including, but not limited to, the passenger's name, date of birth, passport nationality, passport number, other travel document information, reason boarding was refused, the country of destination, and port of embarkation; and

(3) Any other evidence to demonstrate the carrier's efforts to properly screen passengers destined for the United States.

October 15, 1998 _________________ Dated:

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