Screening Requirements of Carriers

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.

----------------------------------------------------------------------

(Representative's Signature)

----------------------------------------------------------------------

(Title)

----------------------------------------------------------------------

(Carrier Name)

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

----------------------------------------------------------------------

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