Suspension of Privilege To Transport Aliens to the United States

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 273

[INS No. 1809-96]

RIN 1115-AE59

Suspension of Privilege To Transport Aliens to the United States

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service (Service or INS) regulations by allowing the Service to suspend

a commercial airline's privilege to transport aliens to the United

States if the airline brings in passengers with fraudulent documents

contrary to regulation and at a significantly higher rate than the

industry standard. This rule is necessary to ensure that airlines

prevent the boarding and transport of aliens who use fraudulent

documents in an attempt to gain entry to the United States.

Initially, an offending carrier will be fined under section 273 of

the Immigration and Nationality Act (Act) for transporting aliens with

fraudulent documents at a rate significantly above the industry

standard. If the carrier's performance does not improve after the

imposition of fines, the Immigration and Naturalization Service will

issue a warning letter stating that the Service may cancel the

carrier's contracts. If the carrier continues to transport aliens with

fraudulent documents, the Service will issue a notice of intent to

suspend the carrier's privilege to transport aliens to the United

States. If the carrier still transports aliens with fraudulent

documents, the Service will suspend the carrier's privilege to

transport aliens.

DATES: Written comments must be submitted on or before December 22,

1998.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, attention: Public Comment Clerk, 425 I Street,

NW, Room 5307, Washington, DC 20536. To ensure proper handling, please

reference INS No. 1809-96 on your correspondence. Comments are

available for public inspection at the above address by calling (202)

514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Una Brien, Director, National Fines

Office, Inspections Division, Immigration and Naturalization Service,

1400 Wilson Blvd., Suite 210, Arlington, VA 22209, telephone (202) 305-

7018.

SUPPLEMENTARY INFORMATION: Section 124(b)(1) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-

208, 110 Stat. 3009, amended section 212(f) of the Immigrant and

Nationality Act (the Act) by authorizing the Attorney General to

suspend a commercial airline's privilege to transport aliens to the

United States if the airline brings in passengers with fraudulent

documents. The Attorney General has delegated to the Commissioner of

the INS her authority to issue regulations. This rule proposes to add a

new Sec. 273.7 to define the steps the Service will take to suspend a

commercial airline's privilege, if necessary. This is supported by

Articles 4 and 5 of the U.S. Government Model Open Skies Agreement. It

also amends Sec. 103.1(f)(3)(iii) by adding an appeal to the

Administrative Appeals Office (AAO) of a decision by the Executive

Associate Commissioner for Field Operations to suspend an airline's

privilege of transporting some or all aliens to the United States.

Section 212(f) of the Act allows the president to suspend the

admission of any class of aliens if their entry would be detrimental to

the interests of the United States. In IIRIRA, Congress provided that:

``Whenever the Attorney General finds that a commercial airline has

failed to comply with regulations of the Attorney General relating to

requirements of airlines for the detection of fraudulent documents used

by passengers traveling to the United States (including the training of

personnel in such detection), the Attorney General may suspend the

entry of some or all aliens transported to the United States by such

airline.''

It should be noted that the Service has other means available to

encourage airlines to comply with the Act by preventing the transport

of improperly documented aliens to the United States. Specifically, a

carrier is subject to monetary penalties under section 273 of the Act

for transporting to the United States an alien which is not in

possession of a valid passport or visa, as required. It has long been

the Service's policy not to impose a fine against a carrier that

transports aliens with fraudulent documents unless the quality of the

fraud is exceedingly poor and could have reasonably been detected by

carrier personnel at the port-of-embarkation.

In recent years, the Service has been working closely with the air

transport industry to provide training to carriers in screening

passengers for proper documentation. Administrative fines for bringing

in aliens who have destroyed their documents en route and arrive in the

United States without passports or visas dropped from approximately

3,000 cases in Fiscal Year 1992 to approximately 1,200 cases in Fiscal

Year 1995. The primary reason for the decrease in the number of aliens

without documents being brought to the United States was the passage in

1990 of legislation which increased the fine imposed on a carrier for

the transportation of improperly documented aliens from $1,000 to

$3,000 for each violation of section 273(a) of the Act. As a result,

carriers, seeking to avoid fines, began document training programs for

their agents at overseas ports-of-embarkation. It is anticipated that

imposition of fines for bringing in aliens with reasonably detectable

fraudulent documents will similarly reduce the frequency of such

occurrences.

Prior to December 1994, the Service, by statute, was permitted to

remit or refund fines imposed under section 273 of the Act only if the

carrier could demonstrate that it did now know, and could not have

ascertained by the exercise of reasonable diligence, that the

individual transported was an alien and that valid passport or visa was

required. Section 209(a)(6) of the Immigration and Nationality

Technical Corrections Act of 1994 (Pub. L. 103-416, 108 Stat. 5312,

Oct. 25, 1994), added subsection (e) to section 273 to the Immigration

and Nationality Act. This new subsection

[[Page 56870]]

gave the Service the ability to reduce a fine if a carrier can

demonstrate that it screened passengers in accordance with standards

prescribed by the Attorney General, or that circumstances exist that

the Attorney General determines would justify reduction. In a final

rule published in the Federal Register on April 30, 1998, at 63 FR

23643, the Service provided procedures a carrier must undertake for the

proper screening of passengers at the port-of-embarkation to become

eligible for fines reductions, refunds, or waivers. These procedures

are considered voluntary.

The provisions, enacted in IIRIRA, allowing the Service to suspend

an airline's privilege to transport aliens to the United States would

be a last resort, and it is anticipated that it would rarely be used.

Generally, once the Service imposes significant monetary penalties

against a carrier, the carrier will take corrective action by improving

document screening standards, training check-in agents, and upgrading

security measures. If fining the carrier proved to be ineffective, the

Service could, with reasonable notice, cancel the carrier's Visa Waiver

Pilot Program (VWPP), Transit-without-Visa (TWOV), and/or preinspection

contracts. If a carrier continued to transport aliens with fraudulent

documents to the United States at a significantly higher rate than the

industry standard, despite the imposition of fines and the cancellation

of contracts, the Service could invoke its authority to suspend a

carrier's privilege to transport aliens to the United States. To the

extent required under applicable bilateral air services agreements, the

United States would pursue consultations with the governments of

implicated airlines relative to any potential suspension of a carrier's

privilege to transport aliens to the United States.

When it is noted that a commercial airline transports to the United

States, at a rate that significantly exceeds the industry standard,

aliens with altered or counterfeit documents that should have been

identified as deficient by the use of reasonable diligence,\1\ and the

airline has made insufficient effort to stop the transport of such

aliens despite the imposition of fines pursuant to section 273 of the

Act, the Service will issue a warning letter. The letter will notify

the airline that the number or percentage of passengers with fraudulent

documents brought to the United States by the airline is significantly

above the industry standard. The letter will also described the

circumstances that have prompted the Service to issue the letter and

what the carrier must do to comply with Service regulations regarding

document screening. The Service will also offer to provide training in

the detection of fraudulent documents. The letter will further state

that if, within 120 days from the date of the letter, the carrier has

not brought its fraudulent document violation rate to an acceptable

level compared to the industry standard, the Service may cancel the

carrier's VWPP, TWOV, and/or preinspection contracts. Within the 120

days the carrier must bring its fraudulent document violation rate to

an acceptable level compared to the industry standard. The carrier may

use this 120-day period to train its employees and improve document

screening standards in order to reduce the rate at which it transports

aliens with fraudulent documents. If the carrier does not reduce its

fraudulent document rate to an acceptable level, the Service may take

action to cancel with the airline in addition to imposing fines under

section 273 of the Act.

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\1\ What is ``reasonable diligence'' (within the meaning of

section 273 of the Immigration and Nationality Act) is a factual

matter determined upon the particular facts and circumstances of

each individual case; what may be reasonable diligence in one case

may not be so in another, Matter of S.S. ``Florida,'' 3 I&N Dec. 111

(BIA 1947; A.G. 1948).

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If the Service cancels some or all of the airline's contracts, the

Service will also inform the airline that it must reduce its fraudulent

document violation rate to an acceptable level within 60 days of the

cancellation of its contracts, and warn the airline that if it does not

achieve this reduction, the Service may take action to suspend the

airline's privilege to transport aliens to the United States.

The Service is requesting comments on whether the level at which

sanctions are triggered should be given a more precise definition. The

Service considered using a numerical formula to calculate the industry

standard and setting a level above which sanctions would be invoked.

Comments on this or alternative approaches are welcome.

Other criteria for suspending an airline's privilege to transport

aliens to the United States were also considered, but not adopted. For

example, consideration was given to suspending the privilege if a

carrier brought in a number of aliens with fraudulent documents on one

flight that was significantly above the industry standard, or if over

10 percent of the alien passengers on any one flight arrived with

fraudulent documents, or if a carrier regularly or systematically

transported aliens with fraudulent documents. For example, a carrier

might operate a 300-400 seat aircraft and bring 30, 40, or 50

fraudulently documented aliens to the United States. However, smaller

carriers might operate a 10-seat aircraft and transport 9 aliens with

fraudulent documents. Or a carrier might bring in aliens with

fraudulent documents on a daily or almost daily basis.

After the contracts are canceled, if the carrier still does not

lower its fraudulent document violation rate to an acceptable level

within a 60-day period, the Service may issue a notice of intent to

suspend the carrier's privilege to transport some or all aliens to the

United States. The Service will forward a copy of this notice to the

Office of Aviation Programs and Policy of the Department of State

(DOS), requesting that DOS contact the appropriate foreign government

to the extent required under applicable bilateral air services

agreements.

The carrier may submit written representations to the Service

stating why the Service should not suspend the carrier's privilege to

transport aliens to the United States and may request an interview with

the Service. If, within 30 days of the issuance of the notice of intent

to suspend, the carrier still does not bring its fraudulent document

violation rate to an acceptable level, the Service may 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. Any Service decision to

suspend the carrier's privilege to transport some or all aliens to the

United States will take into consideration any consultations between

governments under applicable bilateral air services agreements. The

carrier will be fined under section 721 of the Act if it continues to

transport aliens to the United States in violation of the suspension

order.

The carrier may appeal the Service's decision to the Administrative

Appeals Office (AAO). The AAO will adjudicate the appeal as

expeditiously as possible.

In order to have its privilege to transport aliens to the United

States reinstated, the airline must demonstrate improved document

screening and personnel-training standards as defined in 8 CFR 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. This evidence shall be submitted to the Executive

Associate Commissioner for Field Operations for consideration. Evidence

may include, but is not limited to, the following: (1) Information

regarding the carrier's document screening training program, including

attendance of the carrier's personnel in any Service, DOS, or other

[[Page 56871]]

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 and 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. The evidence submitted should indicate that the carrier has

achieved substantial compliance with INS screening standards in order

to improve screening of its passengers. If the Executive Associate

Commissioner for Field Operations is satisfied that the carrier has

achieved substantial compliance with INS screening standards, he will

issue a notice to the carrier reinstating its privilege to transport

aliens and enter into contracts pursuant to section 233 of the Act.

It should be noted that this action suspends only the carrier's

authorization to bring aliens to the United States. It does not suspend

landing rights and it does not suspend authority to bring U.S. citizens

or aliens to the United States who are not subject to the order, or to

transport persons out of the United States.

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 factor: Aliens with fraudulent

documents make up approximately 4 percent of the total number of aliens

found to be inadmissible at airports of entry. The Service anticipates

rarely having to use this provision. In the past 4 years, the Service

has warned only two carriers that it might take action to fine then if

the carrier did not cease bringing aliens to the United States with

fraudulent documents. Neither of these carriers was fined. Although the

economic impact on a carrier whose privilege is suspended will be

significant, it is not expected that a substantial number of small

entities will be affected.

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. Accordingly, this regulation has been submitted to the Office

of Management and Budget for review.

Executive Order 12612

The regulations 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 to warrant the

preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a)

and 3(b)(2) of E.O. 12988.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any 1 year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Paperwork Reduction Act of 1995

This proposed rule does not impose any new reporting or

recordkeeping requirements. The evidence requirements for reinstatement

contained in Sec. 273.7(j) are not considered an information collection

as defined in 5 CFR 1320.3(e). As previously discussed, the Service has

warned only two carriers that it might take action if the carrier did

not cease bringing aliens to the United States with fraudulent

documents.

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:

Sec. 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 Sec. 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:

[[Page 56872]]

Sec. 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 carrier 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 cancellation 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 representations.

(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 as the Service

has certified that the carrier has substantially complied with the

screening standards set forth in Sec. 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

Sec. 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 Sec. 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 may 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

[[Page 56873]]

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.

Dated: October 15, 1998.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 98-28459 Filed 10-22-98; 8:45 am]

BILLING CODE 4410-10-M