7616 Federal Register / Vol. 75, No. 34 / Monday, February 22, 2010 / Notices 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael J. Harmon, ADFO, TSAC, U.S. 

Coast Guard Headquarters, CG–5222; 

2100 Second Street, SW., STOP 7126, 

Washington, DC 20593–7126. 

Telephone (202) 372–1427, fax (202) 

372–1926, or e-mail at: 

Michael.J.Harmon@USCG.MIL. 

SUPPLEMENTARY INFORMATION: Notice of 

these meetings is given under the 

Federal Advisory Committee Act, 5 

U.S.C. App. (Pub. L. 92–463). 

Agenda of Meetings 

Navigation and Vessel Inspection 

Circular (NVIC) 04–01 Working Group. 

The agenda for the working group is to 

continue discussions on possible 

revisions to NVIC 04–01, Licensing and 

Manning for Officers of Towing Vessels, 

including the enclosures on the Towing 

Officer Assessment Records (TOARs). 

(A copy of the amended Task Statement 

08–01 is available in the docket where 

listed under ADDRESSES.) The current 

version of the NVIC can be viewed at 

http://www.uscg.mil/hq/cg5/nvic/ 

2000s.ASP#2001. 

Towing Safety Advisory Committee. 

The tentative agenda for the Committee 

is as follows: 

(1) Update on Commercial/ 

Recreational Boating Interface; 

(2) Report on the Review and 

Recommendations for the Revision of 

NVIC 04–01 ‘‘Licensing and Manning for 

Officers of Towing Vessels;’’ 

(3) Report on the Review and 

Recommendations for the Revision of 

NVIC 04–01 Sub-Working Group on 

Assistance Towing; 

(4) Update on National Maritime 

Center (NMC) activities; 

(5) Report on Mariner credentialing 

policy including the Merchant Mariner 

Medical Advisory Committee; 

(6) Update on the Transportation 

Worker Identification Credential 

(TWIC); 

(7) Update on Office of Vessel 

Activities information; and 

(8) Discuss a Member recommended 

Task to examine the career path from 

Towing Vessel Master (Master 1600 GT) 

to Inland Mate Any Gross Tons. 

Procedural 

All meetings are open to the public. 

Please note that the meetings may close 

early if all business is finished. At the 

Chair’s discretion, members of the 

public may make oral presentations 

during the meetings. If you would like 

to make an oral presentation at a 

meeting, please notify the ADFO, listed 

above in the ‘‘FOR FURTHER INFORMATION

CONTACT’’ section, no later than March 2, 

2010. Written material (20 copies) for 

distribution at a meeting should reach 

the Coast Guard no later than March 2, 

2010. If you would like a copy of your 

material distributed to each member of 

the Committee or Working Groups in 

advance of a meeting, please submit it 

electronically to the ADFO, for e-mail 

distribution, no later than March 2, 

2010. Also at the Chair’s discretion, 

members of the public may present 

comment at the end of the Public 

Meeting. Please understand that the 

Committee’s schedule may be quite 

demanding and time for public 

comment may be limited. 

Information on Services for Individuals 

With Disabilities 

For information on facilities or 

services for individuals with disabilities 

or to request special assistance at the 

meetings, contact the ADFO as soon as 

possible. 

Dated: February 16, 2010. 

J. G. Lantz, 

Director of Commercial Regulations and 

Standards. 

[FR Doc. 2010–3312 Filed 2–19–10; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

U.S. Customs and Border Protection 

Mitigation of Carrier Fines for 

Transporting Aliens Without Proper 

Documents; Modification of 

Memorandum of Understanding and 

Recalculation of Performance Levels 

To Measure Carrier Performance; CBP 

Dec. 09–06 

AGENCY: Customs and Border Protection; 

Department of Homeland Security. 

ACTION: General notice. 

SUMMARY: A carrier that transports to the 

United States an alien who does not 

have a valid passport and an unexpired 

visa, as required under applicable law, 

is subject to a fine for each alien 

transported lacking the required 

documentation. Pursuant to statute and 

regulations, a carrier may receive a 

reduction, refund, or waiver of the fine 

upon submission of an application for 

such relief supported by evidence that 

it screened all passengers on the 

conveyance providing the transport 

(flight or voyage). Alternatively, 

pursuant to statute and regulations, if a 

carrier that enters into a Memorandum 

of Understanding (MOU) with U.S. 

Customs and Border Protection (CBP), 

agreeing to follow procedures set forth 

in the MOU, commits a violation and 

becomes subject to a penalty, such 

carrier would not have to apply for a 

reduction of the fine, but would be 

eligible for an automatic reduction. This 

notice announces that CBP has made 

changes to the existing MOU and has 

recalculated and reset the performance 

levels CBP will use to measure carrier 

performance of its travel document 

screening responsibilities pursuant to 

the MOU. The revised MOU is 

appended to this notice. 

DATES: CBP will commence applying the 

revised performance levels explained in 

this document for all carriers, signatory 

to the MOU and non-signatory, on April 

23, 2010. Although a carrier may submit 

a signed revised MOU any time after 

February 22, 2010, CBP will begin 

accepting (as explained in this 

document) signed revised MOU’s on 

April 23, 2010. All terms of the MOU 

(except for performance levels) will take 

effect for the carrier that submitted the 

MOU on the date of acceptance by CBP. 

CBP will discontinue automatic 

processing of reduced fines based on the 

expired MOU practice on April 23, 

2010. 

ADDRESSES: Copies of the revised MOU 

may be obtained by writing to Mr. 

Dennis McKenzie, Director, Fines, 

Penalties, and Forfeitures Division, U.S. 

Customs and Border Protection, Office 

of Field Operations, Room 5.2C, 1300 

Pennsylvania Avenue, NW., 

Washington, DC 20229, and through the 

following e-mail address: 

Dennis.McKenzie@dhs.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dennis McKenzie, Director, Fines, 

Penalties, and Forfeitures Division, U.S. 

Customs and Border Protection, Office 

of Field Operations: (202) 344–2730; 

Dennis.McKenzie@dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Purpose of this Notice 

Section 273 of the Immigration and 

Nationality Act (INA) (8 U.S.C. 1323), 

herein referenced as INA section 273, 

provides that it is unlawful for a 

transportation company to bring to the 

United States from any place outside the 

United States (other than from a foreign 

contiguous territory) any alien who does 

not have a valid passport and an 

unexpired visa, if a visa is required 

under the INA or regulations issued 

pursuant to the INA (INA section 

273(a)(1)). INA section 273 further 

provides that a transportation company 

that violates this provision will be 

subject to a fine for each alien brought 

into the United States without the 

required documentation (INA section 

273(b)). Further, no fine shall be 

remitted or refunded unless the 


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Federal Register / Vol. 75, No. 34 / Monday, February 22, 2010 / Notices 7617 

1 In practice, the primary function of the 

regulation is fine reduction (as opposed to refund 

or waiver); therefore, that term and the terms 

‘‘mitigation’’ or ‘‘fines mitigation’’ often appear in 

this document. 

2Under the Homeland Security Act of 2002, 6 

U.S.C. 101 et seq. (Pub. L. 107–296, 116 Stat. 2135), 

the Department of Homeland Security (DHS) was 

created and, among other things, the U.S. Customs 

Service was renamed the Bureau of Customs and 

Border Protection (CBP) and the U.S. Immigration 

and Naturalization Service (INS) was abolished. 

Under the Act, effective on March 1, 2003, CBP 

retained most of the components/functions of the 

Customs Service and assumed some functional 

elements of the former INS. Thus, under the Act, 

immigration functions under the INA vested in the 

Attorney General, with a few exceptions, were 

transferred to the Secretary of DHS. Accordingly, 

this document references the Secretary of DHS, 

CBP, and the Commissioner of CBP, except where 

references to the Attorney General, INS, or the 

Commissioner of INS are historically appropriate. 

transportation company establishes 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 (INA 

section 273(c)). INA section 273 allows 

for reduction, refund, or waiver of a fine 

under its provisions if a transportation 

company follows procedures prescribed 

in regulations which demonstrate that it 

has screened all passengers on the 

vessel or aircraft or if the violation 

involved circumstances described in 

regulations for which such a reduction, 

refund or waiver is justified (INA 

section 273(e)). 

Part 273 of title 8 of the Code of 

Federal Regulations (8 CFR part 273) 

implements section 273 of the INA by 

establishing what a carrier must do to 

seek a reduction, refund, or waiver of a 

fine under that section. It describes 

steps a carrier must take to prevent the 

boarding of improperly documented 

aliens (8 CFR 273.3(b)); explains that the 

carrier needs to provide evidence that it 

has taken these steps (8 CFR 273.4); and 

provides for an application procedure 

for carriers seeking a reduction, refund, 

or waiver (8 CFR 273.5). It also 

establishes a procedure for carriers to 

obtain automatic reduction, refund, or 

waiver of a fine without the filing of an 

application (8 CFR 273.6).1 Under this 

procedure, the Carrier and CBP enter 

into a Fines Mitigation Memorandum of 

Understanding (MOU) under which 

both parties agree to undertake certain 

responsibilities to improve the 

performance of the Carrier with respect 

to its duty under INA section 273 to 

prevent the transport of aliens to the 

United States without proper 

documentation (valid passport and, 

where required, an unexpired visa). The 

goal of the automatic fines reduction 

program is to maximize carrier 

cooperation and vigilance in its 

screening procedures to reduce INA 

section 273 violations. 

The MOU that carriers signed with 

the legacy Immigration and 

Naturalization Service was published in 

the Federal Register (63 FR 23643) on 

April 30, 1998 as an Appendix to the 

final regulations promulgating Part 273 

of Title 8 CFR.2 Among other things, the 

MOU identified the method CBP used to 

establish performance levels or 

benchmarks for measuring carrier 

performance. The benchmarks that were 

established in 1998 pursuant to the 

MOU were based on 1994 carrier 

statistics. Although the MOU allowed 

for the recalculation of these 

benchmarks periodically, as deemed 

warranted by CBP, they were never 

updated. 

CBP is announcing in this document 

that it has revised and is reauthorizing 

the MOU. The primary revision is the 

recalculation and resetting of the 

benchmarks for measuring carrier 

performance under the revised MOU 

based on more recent statistics. After 11 

years and significant improvement by 

the carriers in screening alien 

passengers, CBP has determined that 

this recalculation of the benchmarks is 

warranted to further the goal of the 

program. The revisions to the MOU and 

the resetting of the benchmarks will 

encourage carriers to continue to 

improve the effectiveness of their 

passenger screening operations. This 

goal has taken on special significance 

since the terrorist events of September 

11, 2001, as it will enhance the 

capability of DHS to protect America 

from the threat of terrorism by 

individuals who may attempt to use 

fraudulent, counterfeit, or altered travel 

documents to board a commercial 

aircraft or vessel bound for the United 

States. 

II. The Revised MOU 

The MOU published in the Federal 

Register with the 1998 final rule 

expired, by its terms, on September 30, 

2000, and was extended for one year to 

September 30, 2001. However, since its 

expiration, legacy INS, CBP, and the 

carriers that signed the MOU continued 

to operate as though the expired MOU 

had continued in force. This notice 

terminates the practice of CBP honoring 

the expired MOU and reauthorizes the 

revised MOU for an indefinite period. 

In order to benefit from automatic 

processing of reduced fines in the 

future, carriers must sign the MOU in its 

revised form. A copy is appended to this 

notice. Copies of the revised MOU may 

be obtained by writing to Mr. Dennis 

McKenzie, Director, Fines, Penalties and 

Forfeitures Division, U.S. Customs and 

Border Protection, Office of Field 

Operations, Room 5.2C, 1300 

Pennsylvania Avenue, NW., 

Washington, DC 20229 or through the 

e-mail address: 

Dennis.McKenzie@dhs.gov. Carriers 

must submit to CBP two copies of the 

revised MOU, each with original 

signatures and all information 

requested. CBP will review the MOUs 

and determine whether to countersign. 

Soon after publication of this document, 

CBP will issue appropriate instructions 

through the CBP Web site for submitting 

an MOU and informing the public of 

CBP’s approval process. 

III. The Performance Levels 

The benchmarks set forth in the MOU, 

referred to in the MOU as the 

Acceptable Performance Level (APL) 

and the Second APL (APL2), are 

essentially standards that signatory 

carriers must meet to obtain automatic 

reduction of fines imposed under INA 

section 273. The 1998 final rule that 

established the regulations for passenger 

travel document screening and the 

method for reduction, refund, or waiver 

of fines for INA section 273 violations 

stated that any significant adverse 

change regarding fines reduction (which 

may include a change to the acceptable 

performance levels used to determine 

fines mitigation under the MOU) would 

be published in the Federal Register. 

CBP uses these same standards as part 

of the mitigation determination of fines 

for non-signatory carriers on a case-bycase basis when they apply for 

reduction, refund, or waiver of a fine 

under INA section 273. Non-signatory 

carriers have to apply for, and submit 

evidence to justify, mitigation in 

accordance with 8 CFR 273.5, 280.12, 

and 280.51. 

CBP believes that, on the whole, the 

changes described in this notice do not 

constitute a substantial adverse change. 

Based on CBP’s examination of fines 

reduction in 2006, use of the revised 

performance levels (rather than the 

original performance levels that have 

been used to determine fines reductions 

since 1998) would have reduced the 

total number of carriers eligible for 

mitigation of fines from 87% to 82%. 

The examination also revealed that 15 

carriers (about 8%) possibly could lose 

eligibility for the higher level of 

mitigation permitted. Notwithstanding 

the foregoing, because the performance 

levels/benchmarks have not been 

changed since 1998, CBP has decided to 

publish this notice in the Federal 

Register. 


cprice-sewell on DSK2BSOYB1PROD with NOTICES
7618 Federal Register / Vol. 75, No. 34 / Monday, February 22, 2010 / Notices 

3 Documented non-immigrant aliens are those 

subject to the Arrival/Departure Record (Form I–94 

or I–94W) requirement, either to submit one upon 

arrival at a U.S. port or have an electronic 

equivalent and corresponding admission record 

created at time of arrival based on information 

submitted electronically prior to travel. 

4Under the revised MOU process, signatory 

carriers whose performance level falls below the 

reset APL may still qualify for automatic 25% fines 

mitigation for periods determined by CBP if they 

are in compliance with the MOU. However, CBP 

may terminate the MOU if it deems that the carrier’s 

continued performance below the APL is not 

justified or that INA section 273 violations are 

excessive. 

Calculation of Automatic Fines 

Mitigation 

Under the MOU, a signatory carrier’s 

individual performance level (PL) is 

measured against the APL and the APL2 

to determine the level of automatic fine 

reduction (mitigation) applied by CBP to 

the carrier’s INA section 273 violations. 

Under both the old and the revised 

MOU, each carrier’s PL is calculated by 

dividing the number of improper 

documentation violations under INA 

section 273 incurred by the carrier in a 

fiscal year by the number of 

documented non-immigrant aliens 3

transported by the carrier in that fiscal 

year and multiplying that result by 

1000. The first carrier PLs were 

calculated for the 1998 final rule using 

relevant statistics from 1994 (and were 

used retroactively for fines mitigation 

for fiscal years 1994 through 1998). The 

PLs have been recalculated each year 

since 1998 through 2006, using the 

previous year’s statistics. 

Under the old MOU, the APL and 

APL2 also were calculated using 

relevant statistics from 1994, the former 

by dividing the number of section 273 

violations by all carriers during that 

year by the number of documented nonimmigrant aliens (as described above) 

transported to the United States by all 

carriers during that year, and 

multiplying the result by 1000, and the 

latter by performing the same 

calculation but using data relative only 

to carriers whose PL met or exceeded 

the APL. Under both the old MOU 

process (which has continued in 

practice since the MOU’s expiration) 

and the revised MOU process, a 

signatory carrier with a PL that is equal 

to or better than the APL is 

automatically assessed a 25% fine 

reduction, provided that the carrier is 

otherwise operating in compliance with 

the MOU (paragraph 4.9 of the old 

MOU; paragraph 4.11 of the revised 

MOU). A signatory carrier with a PL that 

meets or exceeds the APL2 is 

automatically assessed a 50% fine 

reduction (if otherwise in compliance 

with the MOU) (paragraph 4.10 of the 

old MOU; paragraph 4.12 of the revised 

MOU). A signatory carrier performing 

below the APL is also eligible for the 

25% reduction (if otherwise in 

compliance with the MOU) (paragraph 

4.13 of the revised MOU, which is a 

revision of paragraph 4.11 of the old 

MOU); however, continued performance 

below the APL warrants closer CBP 

scrutiny, and termination of the MOU is 

an option where CBP determines that 

INA section 273 violations are 

excessive, such as an unacceptable 

pattern of underperformance. 

The Recalculated APL and APL2 

Under paragraph 4.8 of the old and 

revised MOU, the PLs, APL, and APL2 

may be recalculated periodically, as 

deemed necessary by CBP based on 

carrier performance during the previous 

period. As stated above, the PLs were 

recalculated yearly through 2006 (using 

the previous year’s statistics), but the 

APL and APL2, the benchmarks, have 

not been recalculated since they were 

originally calculated in 1998 (using 

1994 carrier performance data). Any 

recalculation of the APL and APL2 

performance levels under this paragraph 

is intended ‘‘to maximize carrier 

cooperation and vigilance in their 

screening procedures’’ (63 FR 23644). 

This provision of the MOU gives CBP 

flexibility to make appropriate 

adjustments to the performance levels, 

as carrier screening performance 

improves over time. Such adjustments 

are necessary to provide an effective 

incentive that encourages carriers to 

continue to improve their screening 

performance, the fundamental purpose 

of the MOU process. 

In recalculating the APL and APL2 

performance levels, CBP used 2005 

carrier statistics and employed the same 

formula that was used to set the initial 

performance levels in 1998 (i.e., 

dividing the number of INA section 273 

violations by the number of documented 

non-immigrant aliens transported to the 

United States, as described previously, 

multiplied by 1000, for all carriers to 

yield the APL and for all carriers 

meeting the APL to yield the APL2). 

Because carrier performance has 

improved since 1998, the APL and 

APL2 recalculation results were 

significantly lower than the 1998 

calculation results (the higher carrier 

success rates produced fewer carrier 

violations). However, rather than adopt 

the raw recalculations as the new 

performance levels that carriers must 

meet or exceed for reduced fines, as was 

done in 1998, CBP set the new APL and 

APL2 at points between the recent 

recalculations and the old APL and 

APL2, thereby raising the bar somewhat 

from what was required under the old 

APL and APL2 and lowering the bar 

somewhat from where it would have 

been set under the raw recalculations 

alone. CBP believes that the new 

performance levels are reasonably 

obtainable performance targets.4

CBP believes that application of the 

new APL and APL2 will incrementally 

restore the efficacy observed in the 

program in the past without negatively 

impacting the industry or straying from 

the purpose of INA section 273(e). 

As stated previously, the revised 

MOU (paragraph 4.8) permits the 

periodic recalculation of performance 

levels (but not necessarily yearly) as 

deemed warranted by CBP. CBP will 

publish notice of any future change that 

is deemed adverse to the carriers. 

IV. Other Changes to the MOU 

The revised MOU includes a number 

of additional changes, including the 

following rudimentary changes: A 

change to the name of the applicable 

agency that is a party to the MOU, from 

INS to CBP; appropriate changes to the 

titles of pertinent officials; the 

appropriate renumbering of paragraphs 

necessitated by the addition of five new 

paragraphs in the revised MOU 

(paragraphs 3.4, 3.9, 3.16, 4.9, and 4.10); 

a change to the number of days that 

advance written notice is required by 

either party to terminate the MOU 

agreement, from 30 to 15 days (see MOU 

introductory text); and removal of the 

expiration date. In addition, the revised 

MOU reflects the following changes/ 

additions (references are to paragraphs 

of the revised MOU unless specified 

otherwise): 

1. In paragraph 1.4, the carrier must 

provide the email address of its contact 

person and must notify CBP of any 

changes to the contact information. 

2. In paragraph 1.5, a carrier’s contract 

staff is added to the carrier employees 

who must be required by the carrier to 

comply with the terms of the MOU. 

3. In paragraph 3.3, the carrier agrees 

to conduct additional document checks 

for verification purposes at the boarding 

gate. This is a change from the old MOU 

which provided for carriers conducting 

additional checks ‘‘when deemed 

appropriate.’’ 

4. A new paragraph 3.4 is added. It 

reads as follows: ‘‘The Carrier is 

responsible for screening all passengers 

boarding their aircraft, regardless of who 

was the issuing agent for the ticket or 

what flight number exists on the 

tickets.’’ This new paragraph 


cprice-sewell on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 34 / Monday, February 22, 2010 / Notices 7619 

necessitated the renumbering of the 

paragraphs that followed. 

5. In paragraph 3.5 (paragraph 3.4 of 

the old MOU), ‘‘other U.S. Government 

(USG) officials’’ is added to the officials 

who may be allowed by carriers to 

examine passenger documents in the 

circumstances identified. 

6. In paragraph 3.6 (paragraph 3.5 of 

the old MOU), regarding cases of 

suspected fraud, the carrier may contact 

CBP for advice and assistance. 

7. In paragraph 3.7 (paragraph 3.6 of 

the old MOU), the ‘‘Regional Carrier 

Liaison Group’’ and ‘‘other USG 

officials’’ are added to the groups that a 

carrier may consult for advice on 

authentication of documents. 

8. A new paragraph 3.9 is added. It 

reads as follows: ‘‘The Carrier agrees to 

provide CBP-required information 

regarding the date and number of 

improperly documented aliens 

intercepted by the Carrier at the port(s) 

of embarkation.’’ 

9. Paragraphs 3.8 through 3.13 of the 

old MOU are redesignated as paragraphs 

3.10 through 3.15 of the revised MOU. 

10. A new paragraph 3.16 is added. It 

commits a carrier to comply with the 

CBP APIS regulations requiring 

electronic transmission of passenger and 

crew arrival and departure manifests (19 

CFR 4.7b, 4.64, 122.49a–122.49c, 

122.75a, and 122.75b; see also 8 CFR 

part 231). (Commercial carriers are 

required to comply with the APIS 

regulations regardless of this paragraph 

in the revised MOU.) 

11. In paragraph 4.1 (also paragraph 

4.1 of the old MOU), the CBP 

coordinator’s email address has been 

added to the information CBP will 

provide to the carrier. 

12. In paragraph 4.3, the words ‘‘as 

necessary’’ have been added to the 

following sentence: ‘‘Initial and 

refresher training, as necessary, will be 

conducted by CBP or Carrier 

representatives trained by CBP.’’ 

13. In paragraph 4.4, ‘‘other USG 

personnel’’ has been added to the 

officials identified who may be 

consulted by the carrier for assistance in 

performing its passenger screening 

function. 

14. Language has been added at the 

end of both paragraphs 4.6 and 4.7 of 

the revised MOU (pertaining to how the 

APL and APL2, respectively, are 

determined) to reflect that CBP may 

adjust the calculation result to achieve, 

as deemed by CBP, the optimum 

measure that will encourage carriers to 

improve screening operations. 

15. A new paragraph 4.9 is added to 

provide that: (a) CBP will review any 

carrier’s application for participation in 

the MOU program regardless of whether 

the carrier’s PL meets or is below the 

APL; (b) CBP will consider evidence 

submitted by the carrier demonstrating 

that it has taken extensive measures to 

prevent the transportation of improperly 

documented aliens to the United States; 

and (c) CBP will accept the carrier’s 

MOU, by signature of the Director, 

Fines, Penalties, and Forfeitures 

Division, if satisfied with the evidence 

and if satisfied that the carrier is capable 

of meeting the MOU’s terms and 

conditions. The evidence that a carrier 

may submit under (b) above is found in 

paragraph 4.11 of the old MOU. The 

three kinds of evidence set forth in 

paragraph 4.11 of the old MOU are 

included in paragraph 4.9 of the revised 

MOU, and an additional kind of 

evidence has been added (see paragraph 

4.9 (2)): ‘‘Evidence that the carrier 

operates efficient and effective boarding 

gate checks to deter boarding pass 

swaps and to verify that all passengers’ 

documents, including transit 

passengers, have been examined.’’ 

16. A new paragraph 4.10 is added. It 

contains an explanation of the effective 

dates of the MOU’s terms (see also the 

DATES section of this document). 

17. Paragraph 4.13 of the revised 

MOU (paragraph 4.11 of the old MOU) 

has been modified to apply to signatory 

carriers performing below the APL. 

These carriers are eligible for automatic 

25% fines reduction as signatory 

carriers, provided that they are 

otherwise in compliance with the MOU; 

CBP may suspend or terminate the MOU 

if it deems that the carrier’s continued 

performance below the APL is not 

justified or that INA section 273 

violations are excessive. 

V. Effective Dates 

CBP will commence applying the 

revised performance levels explained in 

this document for all carriers, signatory 

to the MOU and non-signatory, on April 

23, 2010. Although a carrier may submit 

a signed revised MOU any time after 

February 22, 2010, CBP will begin 

accepting (as explained in this 

document) signed revised MOU’s on 

April 23, 2010. All terms of the MOU 

(except for performance levels) will take 

effect for the carrier that submitted the 

MOU on the date of acceptance by CBP. 

CBP will discontinue automatic 

processing of reduced fines based on the 

expired MOU practice on April 23, 

2010. 

Dated: December 29, 2009. 

Jayson P. Ahern, 

Acting Commissioner, Customs and Border 

Protection. 

Appendix A—Customs and Border 

Protection INA Section 273(e) Fines 

Mitigation Memorandum of 

Understanding 

This voluntary Memorandum of 

Understanding (MOU) is made between ____ 

(hereafter referred to as the ‘‘Carrier’’) and the 

U.S. Customs and Border Protection 

(hereafter referred to as ‘‘CBP’’). The purpose 

of this MOU is to identify the responsibilities 

of each party to improve the performance of 

the Carrier with respect to its duty under 

section 273 of the Immigration and 

Nationality Act (INA) 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 CBP, and based 

upon compliance with the other stipulations 

outlined in the MOU, CBP may refund, 

reduce, or waive a part of the Carrier’s 

administrative penalties under section 273 of 

the INA. 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 CBP 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 INA or the Code of 

Federal Regulations (CFRs). Nothing in this 

MOU relieves the Carrier of any 

responsibilities with respect to United States 

laws, the INA, or the CFRs. This document, 

once jointly endorsed (i.e., signed by the 

carrier and accepted by CBP upon the 

signature of the appropriate CBP official), 

will serve as a working agreement to be 

utilized for all fines cases relating to section 

273 of the INA, and reflects the mutual 

understanding of the Carrier and CBP. CBP 

will commence applying the APL and APL2 

set forth in this MOU (sections 4.6 and 4.7) 

on April 23, 2010, regardless of the date the 

MOU is accepted by CBP (section 4.10). 

Acceptance occurs upon the signature of the 

CBP Director, Fines, Penalties and Forfeitures 

(FP&F) Division, Office of Field Operations 

(OFO) (sections 4.9 and 4.10). All other terms 

of the MOU, including automatic processing 

of fines reduction, take effect on the date CBP 

accepts the MOU. The MOU shall be a valid 

working document for an indefinite period, 

subject to the MOU’s terms relating to 

cancellation by either party. The Carrier’s 

compliance with the MOU shall be evaluated 

periodically. CBP will notify the Carrier in 

writing of its PL and the applicable APL for 

each rating period. Accordingly, the Carrier 

agrees to begin prompt and complete 

implementation of all of the terms listed in 

this MOU. With 15 days written notice, 

either party may terminate this MOU, for any 

reason, including CBP’s termination of this 


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MOU for the Carrier’s failure to abide by its 

terms. Termination for failure to abide by the 

MOU’s terms may be Carrier-wide or limited 

to one or more of a Carrier’s port(s) of 

embarkation. Any subsequent fines will be 

imposed for the full penalty amount. 

Memorandum of Understanding 

1. Introduction 

1.1 The Director, FP&F Division, OFO, 

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 acceptance of the 

MOU by CBP, as outlined in this MOU 

(section 4.10). 

1.3 The Carrier agrees to permit CBP to 

monitor its compliance with the terms of this 

MOU. The Carrier shall permit CBP 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, to the extent 

permitted by competent local authorities 

responsible for port access and security. If 

necessary, the carrier agrees to use its good 

offices to obtain this permission. 

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 CBP 

with the coordinator’s name, title, mailing 

address, telephone and facsimile number, 

and email address. If the contact information 

for the carrier should change, the carrier 

agrees to promptly notify CBP of the changes. 

1.5 The Carrier shall require that all of its 

employees, including its representatives and 

contract staff, follow the provisions of this 

MOU, and comply with all requirements of 

the INA. The Carrier further agrees to 

cooperate with CBP in an open two-way 

exchange of pertinent information. 

2. Prompt Payment 

2.1 CBP agrees to authorize a reduction in 

penalty amount based on compliance with 

this MOU only if the Carrier has a 

satisfactory payment record with CBP for 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. The carrier agrees to present a 

satisfactory payment record of its user fee 

account prior to its applying to become 

signatory to the MOU. 

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 means 

payments made within 30 days from the date 

of billing. 

2.3 CBP 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 under the MOU. 

2.4 The Carrier agrees to select a person 

from its organization as a contact point for 

the CBP FP&F Office for the resolution of 

payment issues. The Carrier shall provide 

FP&F with the contact person’s name, title, 

address, telephone and facsimile number, 

and email address and will report promptly 

to CBP any changes in this information. 

3. Carrier Agreement 

3.1 The Carrier shall refuse to knowingly 

carry any improperly documented passenger. 

3.2 The Carrier agrees to verify that 

trained personnel examine and screen all 

passengers’ travel documents to confirm that 

the passenger is properly documented for the 

purpose of his/her travel to the United States 

and to confirm, to the best of their ability, 

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 apparent rightful holder of 

the document. 

3.3 The Carrier agrees to conduct 

additional document checks at the boarding 

gate, to verify that all passengers, including 

transit passengers, are in possession of their 

own proper boarding pass and travel 

documents as they board the aircraft, and to 

identify any fraudulent documents. 

3.4 The Carrier is responsible for 

screening all passengers boarding their 

aircraft, regardless of who was the issuing 

agent for the ticket or what flight number 

exists on the tickets. 

3.5 The Carrier agrees to permit CBP 

officers, Department of State (DOS) Consular 

officials, or other U.S. Government (USG) 

officials to screen passengers’ travel 

documents before or after the Carrier has 

screened those passengers for boarding, to 

the extent permitted by the competent local 

authorities responsible for port access and 

security. If necessary, the carrier agrees to use 

its good offices to obtain this permission. 

3.6 In cases involving suspected fraud, 

the Carrier shall assess the adequacy of the 

documents presented, question the 

individual(s) or take other appropriate steps 

to corroborate the identity of the passengers, 

such as requesting secondary identification 

or contacting CBP for advice and assistance. 

3.7 Following notification by CBP, or its 

representative, about a particular passenger 

or passengers, the carrier shall refuse to 

knowingly transport any such individual 

determined by a CBP 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 CBP 

presence, carriers may contact the Regional 

Carrier Liaison Group, request local DOS 

Consular officials or other USG officials to 

examine and advise on authenticity of 

passenger documentation. DOS Consular 

officials and other USG officials will act in 

an advisory capacity only. 

3.8 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 about that passenger, to the 

extent permitted by competent local 

authorities responsible for port access and 

security. If necessary, the carrier agrees to use 

its good offices to obtain this permission. 

3.9 The Carrier agrees to provide CBPrequired information regarding the date and 

number of improperly documented aliens 

intercepted by the Carrier at the port(s) of 

embarkation. 

3.10 The Carrier shall maintain a 

reasonable 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. 

3.11 The Carrier agrees to participate in 

CBP training programs and utilize CBP 

Carrier Information Guides and other 

information provided by CBP to assist the 

Carrier in determining documentary 

requirements and detecting fraud. 

3.12 The Carrier agrees to make CBP 

Carrier Information Guides and other 

information provided by CBP readily 

available for use by Carrier personnel at 

every port of embarkation. 

3.13 The Carrier agrees to make 

appropriate use of technological aids in 

screening documents including ultra violet 

lights, magnification devices, or other 

equipment identified by CBP to screen 

documents. 

3.14 The Carrier agrees to expeditiously 

respond to requests from the appropriate CBP 

official(s) for information pertaining to the 

identity, itinerary, and seating arrangements 

of individual passengers. The Carrier also 

agrees to provide manifests and other 

information, 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. 

3.15 Upon arrival at a CBP port of entry 

(POE) and prior to inspection, the Carrier 

agrees to notify CBP 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. 

3.16 The Carrier will comply with the 

electronic submission of manifests. The 

provisions setting forth requirements 

applicable to carriers regarding the electronic 

transmission of arrival manifests covering 

passengers and crew members under section 

231 of the INA are set forth in 19 CFR 4.7b 

(passengers and crew members onboard 

vessels) and in 19 CFR 122.49a (passengers 

onboard aircraft) and 122.49b (crew members 

onboard aircraft). The carrier will also 

comply with the provisions setting forth 

requirements applicable to commercial 

carriers regarding the electronic transmission 

of departure manifests covering passengers 

and crewmembers under section 231 of the 

INA which are set forth in 19 CFR 4.64 

(passengers and crew members onboard 

vessels) and in 19 CFR 122.75a (passengers 

onboard aircraft) and 122.75b (crew members 

onboard aircraft). 

3.17 The Carrier agrees to notify the 

Director, FP&F Division, in writing, if it is 

unable to comply with any section of the 

MOU because of local law or local competent 

authority. The Carrier shall list the specific 

section of the MOU with which it is unable 


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to comply and, to be in compliance with the 

MOU, shall notify CBP within ten (10) days 

after becoming cognizant of this prohibition 

to comply. Further, in such instances the 

Carrier shall propose alternative means for 

meeting the objective sought by the 

paragraph in question. For instance, where 

review of foreign boarding procedures cannot 

be performed by CBP personnel, the Carrier 

could provide that an audit of its operation 

be performed by local authorities or by 

private auditors. 

4. CBP Agreement 

4.1 The Director, FP&F Division, Office 

of Field Operations, will serve as a 

coordinator for all fines issues arising from 

the implementation of this MOU. The 

Director, Alien Smuggling Interdiction (ASI), 

will serve as coordinator for all ASI issues 

arising from this MOU. The Director, Fraud 

Document Analysis Unit (FDAU) and the 

Carrier Liaison Program (CLP), and the 

Director, Passenger Programs, Immigration 

Advisory Program (IAP), as appropriate, will 

coordinate all CBP training, airline liaison 

officer, and on-site airport interdiction issues 

arising from this MOU. CBP shall provide the 

carrier with these offices’ coordinator’s 

names, addresses, telephone and facsimile 

numbers, and email addresses. 

4.2 CBP agrees to publish a Carrier 

Information Guide to be used by Carrier 

personnel at all ports of embarkation prior to 

boarding passengers destined to the United 

States. The Carrier Information Guide will 

function as a resource to assist Carrier 

personnel in determining proper 

documentary requirements and detecting 

fraud. 

4.3 CBP agrees to develop a formal, 

continuing training program to assist carriers 

in their screening of passengers. Carriers may 

provide input to CBP concerning specific 

training needs that they have identified. 

Initial and refresher training, as necessary, 

will be conducted by CBP or Carrier 

representatives trained by CBP. 

4.4 To the extent possible, CBP, DOS 

Consular officials, or other USG personnel 

will consult, support, and assist the Carrier’s 

efforts to screen passengers prior to boarding. 

4.5 CBP 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 INA for a fiscal year and dividing this by 

the number of documented nonimmigrants 

transported by the Carrier and multiplying 

the result by 1,000. Documented 

nonimmigrants are those that are subject to 

the Arrival/Departure Record (CBP Form I–94 

or I–94W) requirement, either to submit one 

upon arrival at a U.S. port or to have an 

electronic equivalent and corresponding 

admission record created at time of arrival 

based on information submitted 

electronically prior to travel. 

4.6 CBP 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 INA for a fiscal year 

(normally the fiscal year previous to the year 

the APL is calculated) and dividing this by 

the total number of documented 

nonimmigrants (as described in paragraph 

4.5 above) transported by all carriers for that 

same fiscal year and multiplying the result by 

1,000. CBP will then evaluate the result of 

that calculation and either adopt it or adjust 

it to achieve what it deems to be the 

optimum measure that encourages carriers to 

improve their screening operations with a 

reasonably challenging and reasonably 

attainable performance target. 

4.7 CBP shall establish a Second 

Acceptable Performance Level (APL2), based 

on statistical analysis of the performance of 

all carriers operating 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 INA for a fiscal year (normally the 

fiscal year previous to the year the APL2 is 

calculated) and dividing by the total number 

of documented nonimmigrants (as described 

in paragraph 4.5 above) transported by these 

carriers for that same year and multiplying 

the result by 1,000. CBP will then evaluate 

the result of that calculation and either adopt 

it or adjust it to achieve what it deems to be 

the optimum measure that encourages 

carriers to improve their screening operations 

with a reasonably challenging and reasonably 

attainable performance target. 

4.8 The PL, APL, and APL2 may be 

recalculated periodically (including yearly) 

as deemed necessary by CBP, based on 

Carrier performance during the previous 

period(s). 

4.9 The Director, FP&F Division, will 

review the signed MOU submitted by any 

carrier seeking to participate in the automatic 

fines reduction process under this MOU 

regardless of whether that carrier’s PL meets 

or exceeds the APL at the time of submission. 

The Director will consider evidence 

submitted by the carrier that demonstrates 

that the carrier has taken extensive measures 

to prevent the transport of improperly 

documented passengers to the United States. 

This 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 

CBP, DOS, or other training programs and the 

number of employees trained; (2) evidence 

that the carrier operates efficient and 

effective boarding gate checks to deter 

boarding pass swaps and to verify that all 

passengers’ documents, including transit 

passengers, have been examined; (3) 

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, if otherwise permitted under local 

law; and (4) other evidence, including 

screening procedure enhancements, 

technological or otherwise, to demonstrate 

the Carrier’s good faith efforts to properly 

screen passengers destined to the United 

States. If the Director is satisfied with the 

carrier’s evidence, and is otherwise satisfied 

that the carrier is capable of meeting the 

terms and conditions contained in this MOU, 

CBP will accept the carrier’s signed MOU, 

such acceptance evidenced by the Director’s 

signature (section 4.10). 

4.10 CBP will commence applying the 

APL and APL2 set forth in this MOU 

(sections 4.6 and 4.7) on April 23, 2010 

regardless of the date the MOU is accepted 

by CBP. All other terms of the MOU, 

including automatic processing of fines 

reduction, take effect on the date CBP accepts 

the MOU. Acceptance occurs upon the 

signature of the Director, FP&F Division. 

4.11 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 INA 

for periods determined by CBP. 

4.12 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 INA 

for periods determined by CBP. 

4.13 Carriers whose PL is below 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 INA for periods 

determined by CBP, provided that CBP may 

terminate the MOU if it deems that the 

carrier’s performance below the APL is not 

justified in the circumstances or that 

violations of section 273 of the INA are 

excessive. 

4.14 The Carrier may defend against 

imposition of, or seek a waiver or 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, and the Carrier 

establishes that further mitigating or 

extenuating circumstances existed at the time 

of the violation that warrant the relief sought. 

Dated: lllllllllllllllll

(Carrier Representative’s Signature) 

lllllllllllllllllllll

(Title) 

lllllllllllllllllllll

(Carrier Name) 

Dated: lllllllllllllllll

Director, FP&F Division, OFO 

Customs and Border Protection. 

[FR Doc. 2010–3243 Filed 2–19–10; 8:45 am] 

BILLING CODE 9111–14–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

[Docket No. FR–5376–N–07] 

Rent Schedule—Low Rent Housing 

AGENCY: Office of the Chief Information 

Officer, HUD 


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