Screening Requirements of Carriers [63 FR 23643] [FR 25-98]

DOCUMENT NUMBER: FR 25-98

FEDERAL REGISTER CITE: 63 FR 23643

DATE OF PUBLICATION: April 30, 1998

BILLING CODE 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 273

[INS No. 1697-95]

RIN 1115-AD97

Screening Requirements of Carriers

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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

DATES: This rule is effective June 1, 1998. The supplementary information portion of this final rule requires carriers whose Performance Level (PL) is not at or better than the Acceptable Performance Level (APL), to submit evidence to the Service so that they may receive an automatic fine reduction of 25 percent, if certain conditions are met. Since this evidence is considered an information collection which is subject to review by the Office of Management and Budget (OMB) under the Paperwork Reductions Act (PRA), the evidence cannot be submitted until OMB approves th e information collection requirements. The Service will publish a notice in the Federal Register once OMB approval of the information collection is obtained.

FOR FURTHER INFORMATION CONTACT: Robert F. Hutnick, Assistant Chief Inspector, Immigration and Naturalization Service, 425 I Street, NW., Room 4064, Washington, DC 20536, telephone number (202) 616-7499.

SUPPLEMENTARY INFORMATION: The imposition of administrative fines has long been an important tool in enforcing the United States immigration laws and safeguarding its borders. Both section 273 of the Act and prior law reflect a similar Congressional purpose to compel carriers, under pain of penalties, to ensure enforcement of, and compliance with, certain provisions of the immigration laws. In enacting both section 273 of the Act of 1952 and section 16 of the Immigration Act of 1924 (the precursor to section 273(a) of the Act of 1952), Congress intended to make the carrier en sure compliance with the requirements of the law. The carriers have long sought relief from fines by having the Service consider extenuating circumstances related to the imposition of fines.

Prior to the enactment of section 209(a)(6) of the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416, dated October 25, 1994, it was the Service's policy not to reduce, refund, or waive fines imposed under section 273 of the Act except pursuant to section 273(c) of the Act where the carrier could, to the satisfaction of the Attorney General, demonstrate that it did not know, and could not have ascertained by the exercise of reasonable diligence, that the individual transported w as an alien and that a valid passport or visa was required.

This final rule provides procedures carriers must undertake for the proper screening of aliens at the port of embarkation to become eligible for reduction, refund, or waiver of a fine imposed under section 273 of the Act. Nevertheless, it is important to note that these are voluntary procedures for carriers. This final rule further prescribes conditions the Service will consider before reducing, refunding, or waiving a fine. Of primary importance will be the carrier's performance in screening passengers. Th e Service will determine a carrier's performance record by analyzing statistics on the number of improperly documented nonimmigrant passengers transported to the United States by each carrier compared to the total number of documented nonimmigrant passengers transported.

This final rule will enable the Service to reduce, refund, or waive a fine imposed under section 273 of the Act for a carrier that demonstrates successful screening procedures by achieving satisfactory performance in the transportation of properly documented nonimmigrants to the United States. This will enable the Service to reduce, refund, or waive fines for carriers that have taken appropriate measures to properly screen passengers while continuing to impose financial penalties on carriers that fail to pr operly screen passengers. It is important to note that the final rule does not impose any additional requirements on the carriers, and that carriers are free to observe current procedures both in respect to screening their passengers and filing their defenses.

The Service wishes to maintain flexibility in assessing the success of a carrier's screening procedures. The Service has devised an initial means of measurement, as set forth in the following paragraphs, but will 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.

Under the methodology, a carrier's performance level (PL) will be determined by taking the number of each carrier's nonimmigrant violations of section 273 of the Act for a fiscal year and dividing this by the number of documented nonimmigrants transported by the carrier for the same fiscal year and multiplying the result by 1,000. A carrier's PL will be calculated annually.

The Service shall establish an Acceptable Performance Level (APL), based on statistical analysis of the performance of all carriers, as a means of evaluating whether the carrier has successfully screened all of its passengers in accordance with 8 CFR 273.3. The APL shall be determined by taking the total number of all carrier nonimmigrant violations of section 273 of the Act for a fiscal year and dividing this by the total number of documented nonimmigrants transported by all carriers for the same fiscal y ear and multiplying the result by 1,000.

The Service shall establish a Second Acceptable Performance Level (APL2), based on statistical analysis of the performance of all carriers at or better than the APL, as a means of further evaluating carrier success in screening its passengers in accordance with 8 CFR 273.3. Using carrier statistics for only those carriers which are at or better than the APL, the APL2 shall be determined by taking the total number of these carriers' nonimmigrant violations of section 273 of the Act for a fiscal year and divi ding by the total number of documented nonimmigrants transported by these carriers for the same fiscal year and multiplying the result by 1,000.

Carriers which have achieved a PL at or better than the APL, as determined by the Service, will be eligible for a 25 percent fine reduction in the amount of any fine covered by this provision if the carrier applies for a reduction, refund, or waiver of fines according to the procedures listed in 8 CFR 280.12 and 8 CFR 280.51. Carriers which have achieved a PL at or better than the APL2, as determined by the Service, will be eligible for a 50 percent fine reduction in the amount of any fine covered by this p rovision if the carrier applies for a reduction, refund, or waiver of fines according to the procedures listed in 8 CFR 280.12 and 8 CFR 280.51. Additional factors the Service will consider in determining whether the Service will reduce, refund, or waive a fine under section 273 of the Act and the amount of such reduction, refund, or waiver are: (1) The carrier's history of fines violations, (2) the carriers payment record for fines, liquidated damages, and user fees, and (3) the existence of any extenuatin g circumstances. In the future, the Service may consider other factors in evaluating carrier performance including participation in data sharing initiatives or evaluation of a carrier's performance by particular port(s) of embarkation and/or route(s) to determine carrier fines mitigation levels.

To maintain flexibility in determining the success of a carrier's screening procedures, the Service will not include in the regulation the methodology it will use in determining a carrier's PL, the APL, or the APL2 or the fines reduction percentage levels. Both the methodology used to determine the success of a carrier's screening procedures and the fines reduction percentage will be periodically revisited by the Service to maximize carrier cooperation and vigilance in their screening procedures. The Servic e shall compute all carrier PLs, the APL, and the APL2 periodically but may elect to use the APL or APL2 from a previous period when determining carrier fines reduction, refunds, or waivers for a specific period(s). While the individual carrier's PL will be computed at least annually, the benchmark APL and APL2 may apply to a longer period. Initially the Service may set the benchmark criteria for 3 years. If this is done, it will be done across the board for all carriers. The Service will publish any signif icant adverse changes regarding fines reduction in the Federal Register in accordance with the Administrative Procedure Act (APA) prior to implementation. Maintaining a flexible approach allows the Service to work in partnership with the carriers toward the mutual goal of decreasing the number of improperly documented nonimmigrants transported to the United States.

Carriers may elect to sign a Memorandum of Understanding (MOU) with the Service for the broader application of the reduction, refund, or waiver of fines imposed under section 273 of the Act by agreeing to perform additional measures to intercept improperly documented aliens at ports of embarkation to the United States. The MOU is attached as an appendix to this final rule. Carriers performing these additional measures to the satisfaction of the Commissioner would be eligible for automatic fine reductions, r efunds, or waivers as prescribed in the MOU. Carriers signatory to the MOU with the Service would be eligible for an automatic fine reduction of 25 or 50 percent depending on whether a carrier's PL is at or better than the APL or APL2 respectively, as determined by the Service. Carriers not signatory to an MOU would not be eligible for automatic fine reductions, refunds, or waivers. Nevertheless, this rule does not preclude any carrier, whether or not signatory to the MOU, from requesting fines reduction, refund, or waiver according to the procedures listed in 8 CFR 280.12 and 8 CFR 280.51. Even if the carrier's PL is not at or better than the APL, the carrier may receive an aut omatic fine reduction of 25 percent, if it meets certain conditions, including: (1) It is signatory to the MOU, which is predicated on the carrier submitting evidence that it has taken extensive measures to prevent the transport of improperly documented passengers to the United States, and; (2) it is in compliance with the MOU. This evidence shall be submitted to the Assistant Commissioner for Inspections for consideration. Evidence may include, but is not limited to, the following: (a) Information regardin g 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 informati on, reason boarding was refused, and port of embarkation, unless not permitted by local law or local competent authority. In such instances, the carrier shall notify the Service of this prohibition and shall propose alternative means for meeting this objective; and, (c) any other evidence to demonstrate the carrier's efforts to properly screen passengers destined for the United States; and, (3) it appears to the satisfaction of the Assistant Commissioner for Inspections that other Service data and informati on, including a carrier's PL, indicate the carrier has demonstrated improvement in the screening of its passengers. The evidence that must be submitted to the Service by a carrier whose PL is not at or better than the APL, is considered an information collection which is covered under the Paperwork Reduction Act (PRA). Accordingly, those carriers whose PL is below the APL cannot submit evidence to the Service until the information collection is approved by the Office of Management and Budget (OMB) in accord ance with the PRA. Once the Service receives approval from OMB on the information collection, it will notify the public by PRA notice in the Federal Register that the information collection is approved.

The levels for fines mitigation are loosely based on the Canadian fines mitigation system. Based on performance levels of the carriers, the Canadian system provides for an automatic fines reduction of 25 percent upon the carrier signing an MOU with the Canadian Government. Through attaining performance standards established in the Canadian MOU, carriers can earn further reductions of 50, 75, or 100 percent of their fines.

This rule further clarifies fines imposed under section 273(d) of the Act by stating that provisions of section 273(e) of the Act do not apply to any fine imposed under section 243(c)(1)(B) of the Act, prior section 273(d) of the Act in effect until April 1, 1997, nor under any provisions other than sections 273(a)(1) and 273(b) of the Act.

On June 10, 1996, at 61 FR 29323-29327, the Service published a proposed rule with requests for comments in the Federal Register , in order to comply with section 209(a)(6) of the Immigration and Nationality Technical Corrections Act of 1994, which permitted the Service to mitigate fines in certain cases where the carrier demonstrates that it had screened all passengers in accordance with regulations prescribed by the Attorney General or if circumstances exist that the Attorney General determines would justify such mitigation. Interested persons were invited to submit written comments on or before August 9, 1996. The following is a discus sion of those comments received by the Service and the Service's response.