[Federal Register: December 28, 2001 (Volume 66, Number 249)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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.
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.
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
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
Share this page
Bookmark this page
The leading immigration law publisher - over 50000 pages of free information!
© Copyright 1995- American Immigration LLC, ILW.COM