[Federal Register Volume 75, Number 34 (Monday, February 22, 2010)]
[Notices]
[Pages 7616-7621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3243]


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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.

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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: <a href="/cdn-cgi/l/email-protection#89cdece7e7e0faa7c4eac2ece7f3e0ecc9ede1faa7eee6ff"><span class="__cf_email__" data-cfemail="9fdbfaf1f1f6ecb1d2fcd4faf1e5f6fadffbf7ecb1f8f0e9">[email protected]</span></a>.

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; 
<a href="/cdn-cgi/l/email-protection#2165444f4f48520f6c426a444f5b4844614549520f464e57"><span class="__cf_email__" data-cfemail="0c48696262657f22416f4769627665694c68647f226b637a">[email protected]</span></a>.

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

[[Page 7617]]

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.
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    \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.
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    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.
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    \2\ Under 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.
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    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: <a href="/cdn-cgi/l/email-protection#fcb8999292958fd2b19fb79992869599bc98948fd29b938a"><span class="__cf_email__" data-cfemail="2064454e4e49530e6d436b454e5a4945604448530e474f56">[email protected]</span></a>. 
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-by-case 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.

[[Page 7618]]

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.
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    \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.
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    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 non-immigrant 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\
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    \4\ Under 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.
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    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

[[Page 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

[[Page 7620]]

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 CBP-required 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

[[Page 7621]]

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:-----------------------------------------------------------------

(Carrier Representative's Signature)
-----------------------------------------------------------------------

(Title)
-----------------------------------------------------------------------

(Carrier Name)
Dated:-----------------------------------------------------------------

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


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