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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: December 28, 2001 (Volume 66, Number 249)]
[Notices]               
[Page 67318]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de01-121]                         
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 2150-01]

Extension of Memorandum of Understanding for Fines Mitigation 
Under Section 273 of the Immigration and Nationality Act

AGENCY: Immigration and Naturalization Service, Justice.

ACTION:  Notice.
-----------------------------------------------------------------------
SUMMARY: Air and sea transportation companies (carriers) may enter into 
a memorandum of Understanding (MOU) with the Immigration and 
Naturalization Service (Service). This MOU provides for mitigation of 
fines imposed under section 273 of the Immigration and Nationality Act 
(Act) related to transporting passengers without passports or visas. By 
signing the MOU, the carrier agrees to perform certain measures aimed 
at intercepting improperly documented aliens at foreign ports-of-
embarkation. These MOUs expired on September 30, 2001. This notice 
services to extend the expiration date until September 30, 2002.

DATES: This notice is effective December 28, 2001.

FOR FURTHER INFORMATION CONTACT: Una Brien, National Fines Office, 
Immigration and Naturalization Service, 1525 Wilson Blvd., Suite 425, 
Arlington, VA 22209, telephone (202) 305-7018.

SUPPLEMENTARY INFORMATION:

Under What Authority Can the Service Reduce Fines?

    Pursuant to section 273(e) of the Act, a violation for section 
273(1) of the Act may be reduced, refunded, or waived in cases in which 
a carrier demonstrates that it screened all passengers on the vessel or 
aircraft in accordance with procedures prescribed by the Attorney 
General, or circumstances exist that the Attorney General determines 
would justify such reduction, refund, or waiver.
    The Service published a final rule in the Federal Register at 63 FR 
23643 (April 30, 1998) establishing procedures that 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 Act.
    The final rule provided that carriers that voluntarily signed at 
MOU with the Service would receive an automatic reduction, refund, or 
waiver of fines imposed under section 273 of the Act. By signing the 
MOU, the carrier agrees in writing to meet passenger screening 
standards stated in 8 CFR 273.3, to train employees in documentary 
requirements, and to pay fines and user fees promptly. The Service 
agrees to provide document training and information guides to carriers 
and to mitigate fines as appropriate.

How Does the Service Measure the Carrier's Screening Performance?

    The numerical standard, or Acceptable Performance Level (APL), is 
calculated by adding the total number of section 273(a)(1) violations 
involving nonimmigrants for all carriers, divided by the total number 
of nonimmigrants transported by all carriers, multiplied by 1,000. Each 
carrier is then rated against the APL using individual Performance 
Levels (PL). A carrier's individual PL is calculated by applying the 
same formula used to calculate the APL.
    Carriers that meet or exceed the APL may be eligible for automatic 
fines reductions if the carrier entered into an MOU with the Service.
    If a carrier's PL is not at or better than the APL, the carrier may 
still receive an automatic fine reduction of 25 percent if it is 
signatory to and in compliance with the MOU.
    In order to provide carriers with additional incentives to screen 
documents, a second reduction factor (APL2) was developed. The APL2 
uses the same formula but only uses the number of violations and total 
passenger counts for carriers who PL falls between 0 and the APL. These 
carriers will automatically receive an additional 25 percent reduction.

Why Is the Service Extending the Expiration Date for MOUs?

    The Service is not contemplating any amendments to the current MOU 
before September 30, 2002. In this light, an extension of all existing 
MOUs will benefit both the Service and the carriers by avoiding the 
administrative costs that would result had the Service required that a 
new MOU be executed for each carrier. Carriers will remain eligible for 
automatic fine reductions during the extended period of the MOUs 
validity as long as the signatory carrier is in compliance with 
screening standards, training requirements, and payment requirements 
enumerated in the MOUs.

Will the Measurements for Screening Performance Be Changed?

    The measurement for screening performance set forth in the Federal 
Register at 63 FR 23643 (April 30, 1998) will continue to remain in 
effect. The Service will inform carriers of any plans to change the 
methods used to calculate a carrier's screening performance by 
publishing a notice in the Federal Register.

Can a Carrier Sign Up For the MOU After September 30, 2001?

    A carrier can apply to be signatory to the MOU at any time. A 
carrier must meet all requirements before its MOU will be approved. 
Generally, a carrier must have a PL either at or better than the 
Service's APL and must be current in its payment of all administrative 
fines, liquidated damages, and user fees. If a carrier does not have a 
PL or does not have a PL that meets the Service's APL, the carrier must 
submit evidence to demonstrate that it has screening procedures in 
place to prevent transporting improperly documented aliens to the 
United States. Once an MOU is approved, violations that occurred on or 
after the date of the MOU signing will receive the automatic 
reductions.

How Does a Carrier or the Service Terminate an Existing MOU?

    Either party may terminate an MOU upon 30 days via written notice.

    Dated: September 28, 2001.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 01-31913 Filed 12-27-01; 8:45 am]
BILLING CODE 4410-10-M




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