[Federal Register Volume 63, Number 205 (Friday, October 23, 1998)]
[Proposed Rules]
[Pages 56869-56873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28459]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 63, No. 205 / Friday, October 23, 1998 /
Proposed Rules
[[Page 56869]]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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