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U.S. CUSTOMS AND BORDER PROTECTION
“
SECTION 481
”
SERVICE FEE AGREEMENT
BETWEEN
U.S. CUSTOMS AND BORDER PROTECTION AND PORT OF SEATTLE
FOR CBP SERVICES
I. General
Under the provisions of Sections 481 and 484 of the Homeland Security Act of 2002 (hereinafter
“the Act”) the Commissioner of U.S. Customs and Border Protection (“CBP”) is authorized to
enter into fee agreements to provide CBP services to requesting parties. The Commissioner of
CBP has delegated the authorities under the Act to the Executive Assistant Commissioner of
CBP’s Office of Field Operations.
The purpose of this document is to establish a partnership and agreement (“Agreement”)
between CBP and the party requesting such services (“Requestor”) that will generate an
offsetting funding source for the provision of certain services in order to promote the United
States economy and border security. Under this Agreement, the funding received by CBP shall
be used to pay CBP for the costs incurred in providing any requested services, which includes
additional or expanded services at existing CBP facilities or the provision of services at new
facilities. As a partnership, it is the intention of the parties to this Agreement to maintain an
ongoing spirit of transparency, collaboration, and mutual respect with regards to this program.
The Requestor shall be considered a private or governmental entity requesting CBP services as
the term is used in the Act. The party requesting to enter into this Agreement with CBP is:
Requestor Name: Port of Seattle
Location(s) covered by this Agreement: Seattle–Tacoma International Airport
Locations covered by this Agreement may be reduced or expanded upon mutual agreement in
writing by both parties pursuant to Section X and in accordance with the Act and other
applicable laws and regulations.
A determination has been made by the Executive Assistant Commissioner of CBP’s Office of
Field Operations (“OFO”) that the Requestor named above has met the requirements for entering
into this Agreement for provision of CBP services as authorized by the Act.
The Requestor and CBP (collectively, “the parties”) will also develop and mutually agree upon
the terms of a separate Memorandum of Understanding (“MOU”) that will contain further details
about the specific services, schedules, and other conditions for the location(s) covered by this
Item No. 8c_attach_2
Meeting Date: February 13, 2018
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Agreement. The MOU will not be a legally binding document, like the terms of this Agreement,
and the terms of the MOU will not affect or in any way override the terms of this Agreement.
Although the MOU may be amended by the parties, such an amendment will have no effect on
the terms of this Agreement.
Any part of this Agreement found to be unlawful or unenforceable in any respect shall be
construed so as to give it the maximum effect permitted by law and, where such a construction is
not permitted by law, that part of this Agreement shall be deemed severable from the rest of the
Agreement, which will remain in full force and effect.
Designated Representatives:
The Requestor and CBP each name and designate the following officials as having respectively
the authority, for the Requestor, to request or cancel services for the location(s) under this
Agreement and, for CBP, the authority to approve or deny services.
The party entering into this Agreement on behalf of CBP is the Executive Assistant
Commissioner of CBP’s Office of Field Operations. With respect to CBP’s authority under this
Agreement, the Executive Assistant Commissioner hereby delegates to the Director of Field
Operations (“DFO”) with jurisdiction over the location(s) covered by this Agreement the
authority to review and approve requests for CBP services under this Agreement and to enter
into the separate MOU covered by this Agreement on CBP’s behalf. The DFO may delegate this
authority to the Port Director for the location(s) covered by this Agreement. The Port Director
may delegate this authority to the Assistant Port Director for the location(s) covered by this
Agreement. This designation will also apply to any person acting in the capacity of the
applicable DFO, Port Director, and/or Assistant Port Director.
The party entering into this Agreement on behalf of the Requestor and who is also the official for
the Requestor with the authority to request (and cancel requests for) CBP services is the
Executive Director of the Port of Seattle. For purposes of this Agreement, the Executive
Director of the Port of Seattle hereby delegates his/her authority to request (and cancel requests
for) CBP services to the Managing Director, Seattle Tacoma International Airport, and/or the
Director, Airport Operations. This delegated authority will also reside in any person acting in
the capacity of the Senior Manager, Airport Operations and/or their designee.
Additional Designees: Each party may, from time to time, appoint additional designees to act on
its behalf by sending advanced written notice to the other party.
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II. Definitions
1. “Baseline overtime amount” means CBP’s budgeted overtime allocation for locations
covered by the Agreement at the time that services are requested under this Agreement.
Baseline amounts may be subject to change during the fiscal year due to appropriations and
budgeting conditions wherein, for example, CBP may determine to adjust overtime
allocations for certain locations. Regardless of any fee received by CBP from the Requestor
for overtime services, CBP may, within its sole discretion, expend its baseline overtime
amounts in a reasonable manner so as to maximize the total amount of overtime services it
provides.
2. “CBP personnel” or “employees” means employees of CBP, such as CBP Officers, CBP
Agriculture Specialists, mission support personnel, or any other CBP employees (except
employees of the U.S. Border Patrol) or Office of Field Operations (OFO) contractors that
are authorized to provide the services outlined in this Agreement.
3. “Overtime services” means services for which CBP personnel, pursuant to applicable law,
are entitled to receive overtime pay that are in excess of services payable from the baseline
overtime amount.
4. “Overtime pay” means the compensation that a CBP employee, pursuant to applicable law, is
entitled to receive, in excess of the employee’s base pay, for performing officially-assigned
work in excess of the 40 hours of the employee’s regularly-scheduled administrative
workweek or in excess of 8 hours in a day. This term also includes the compensation which
CBP personnel, pursuant to applicable law, are entitled to receive in excess of the employee’s
base pay for performing officially-assigned work on holidays, Sundays, evenings, and/or any
other purpose authorized by law, as well as any benefits and indirect costs incurred by CBP
related to overtime services.
5. “Fee agreement costs” means the costs of CBP services that are to be provided according to
this Agreement and for which CBP will seek payment from the Requestor. Such costs may
include all costs incurred by CBP involving the provision of such CBP services, which
include but are not limited to, salaries (including, but not limited to, overtime pay) and
benefits of CBP employees and contractors as well as other direct and indirect costs incurred
by CBP related to those services, such as hiring, training, and equipping costs, program
administration, additions of facilities, alterations or expansions of facilities (where
appropriate), technology and equipment, travel and transportation expenses, and any
temporary or permanent relocation expenses incurred as a result of the services requested.
For CBP-serviced air ports of entry not considered “Small airports” (as defined by Section
481(e)(2) of the Act), the term “fee agreement costs” is limited to mean “overtime pay” for
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CBP Officers and the costs related to the salaries and expenses of CBP personnel (other than
OFO contractors) supporting those CBP Officers in their performance of CBP Services.
6. “Services” or “CBP Services” means any activities of any employee (except employees of
the U.S. Border Patrol) or Office of Field Operations contractor of CBP pertaining to or in
support of customs, agricultural processing, border security, and/or immigration inspection-
related matters at ports of entry or any other facility at which CBP provides or will provide
services.
III. Facility Requirements
At existing CBP-serviced facilities, the Requestor agrees to provide, maintain, and equip any
necessary alteration or expansion of the facility at no cost to the U.S. Government in accordance
with Section 481(a)(3) of the Act. At facilities where CBP does not currently provide services,
the Requestor agrees to provide, maintain, and equip such facilities at no cost to the U.S.
Government. In the event new facilities are required or alterations and/or expansions of existing
facilities are required, such requirements will be specified in a separate agreement, such as a
nominal or no-cost lease. All facilities are required to meet relevant CBP safety and technical
design standards. In addition, for any altered, expanded, or new CBP facility covered by this
Agreement, the Requestor also agrees to pay CBP for costs associated with those CBP
requirements that can only be met by CBP acquiring the necessary equipment and related
services. CBP will regularly inspect the facilities to verify that all CBP requirements are met.
The Requestor’s failure to meet these requirements throughout the duration of this Agreement
may result in CBP denying service requests and/or terminating this Agreement in accordance
with Section X’s second paragraph.
IV. Requests for CBP Services
The Requestor will initiate a request for services electronically in the manner required by CBP.
Upon receipt, CBP will consider whether to grant the request. In assessing whether to approve a
request, CBP will determine the number of CBP personnel and total hours needed to perform the
requested services, based on any available advance passenger, conveyance, or cargo information,
other service requests that may have been received, and/or any other relevant information,
including the availability of necessary resources. In an effort to maintain reasonable wait times
by pre-identifying travelers, conveyances, or cargo requiring additional security reviews, the
Requestor will use its best efforts to obtain and provide CBP with available and accessible
advance passenger, conveyance, and/or cargo data.
The Requestor must make a request for services as far in advance as possible so that CBP has
adequate time to review resource availability and evaluate the impact on overall operations. If
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CBP is not given adequate time to consider a request, CBP may not be able to approve the
request for services.
CBP and the Requestor will jointly review the resources needed to provide any requested
services covered by this Agreement. Protocols for these reviews, including establishing the
duration of requested services (e.g., work assignments for CBP personnel) and consultations
about scheduling services will be further outlined in the MOU.
Notwithstanding any other provision of this Agreement, CBP retains sole administrative and
operational control over the CBP personnel and contractors covered by this Agreement. The
Requestor shall not exercise any control or authority over CBP employees and contractors,
methods of operation, policies or training of employees and contractors.
V. CBP Responsibilities
CBP will consult with the Requestor to establish the length and frequency of services requested
under this Agreement. The details of this process will be memorialized in the MOU.
CBP will send bills to the Requestor every four weeks to recover the costs for all CBP services
provided.
CBP will provide monthly reports to the Requestor, which will include information on how the
CBP services billed for under this Agreement are being utilized and additional metrics on how
they may be impacting operations for the location(s) affected by this Agreement. If no services
are requested or provided during a given month, CBP will not generate such a report for that
month.
CBP must adhere to the provisions of the CBP Collective Bargaining Agreement relating to CBP
personnel and for overtime assignments which include, but are not limited to, least cost
principles. Efforts will be made by CBP to accommodate requests for overtime, subject to such
applicable constraints.
VI. Requestor Responsibilities
The Requestor agrees to pay CBP for all costs associated with services provided under this
Agreement. Requestor also agrees to remit all such payments electronically to CBP as instructed
on each bill.
The Requestor agrees to immediately notify CBP once the Requestor becomes aware of the need
for any changes to requests made pursuant to this Agreement that have already been approved by
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CBP. Regardless of such notice, the Requestor will still be responsible for all of CBP’s costs
relating to such approved requests that cannot be reasonably avoided.
The Requestor should maintain liquid assets sufficient to pay all of CBP’s costs anticipated to be
owed by the Requestor for a two-month period. The Requestor agrees to notify CBP promptly if
it expects to become unable to pay the costs owed to CBP pursuant to this Agreement.
The Requestor agrees to execute and adhere to the terms of an appropriate non-disclosure
agreement (“NDA”) pertaining to all information marked as For Official Use Only, including
operational reporting data and metrics provided to the Requestor by CBP. Each member,
partner, or employee of the Requestor who has a justifiable need to view such sensitive CBP-
provided information must sign an NDA. Failure of the Requestor and/or any member, partner,
or employee of the Requestor to adhere to the terms of the NDA may result in penalties as
outlined in that document, the denial of service requests under this Agreement, and/or the
termination of this Agreement pursuant to Section X’s second paragraph. The further
dissemination of any CBP-provided information that is not subject to an NDA, but was received
pursuant to this Agreement, requires the advance approval in writing of CBP.
VII. Unanticipated Service Adjustments
The Requestor acknowledges that during emergency situations, contingency operations, sudden
changes in workload, unanticipated operational impacts, or changes to CBP’s budget and/or
resource allocations for the locations affected by this Agreement, CBP reserves the right to
terminate, suspend, or reduce unapproved or approved services under this Agreement. The
occurrence of such event(s) shall be solely determined at the discretion of CBP, and the
foregoing list of events is not exhaustive. CBP shall promptly notify the Requestor when any
such event occurs. The Requestor further acknowledges that, were such an event to occur, CBP
may be required to redirect officers on assignment under the terms of this Agreement to other
duties. Any bill for any of these unanticipated service adjustments will reflect any corresponding
reduction made to the level of service and costs pursuant to this section.
The Requestor also acknowledges that there will be situations where CBP experiences an
unanticipated increase in workload as a direct result of a request made by the Requestor under
this Agreement. In such situations, in order to maintain safe and essential operating conditions,
CBP may be required to retain personnel on assignment pursuant to the request beyond the
original times sought by the Requestor. When this occurs, the Requestor agrees that its original
request will be amended by CBP to require the Requestor to pay CBP for the additional costs
incurred by CBP as a result of having to extend the workload assignments. If this occurs, CBP
will promptly notify the Requestor and CBP’s corresponding bill to the Requestor will reflect the
increased charges.
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VIII. Payment of Costs
All costs charged by CBP will be assessed in accordance with CBP accounting principles and
standards and applicable statutes and regulations including, without limitation, Title 19 of the
Code of Federal Regulations, Part 24.
Costs will be billed every four weeks and shall be remitted by the Requestor to CBP within 15
calendar days of the transmission of each bill. The Requestor will electronically remit these
payments to CBP in the manner described on each bill’s instructions. Each bill will state the
amount due, the location, and the total number of hours of services performed under the
Agreement for that billing period.
If the Requestor disagrees with any aspect of a bill, it must contest the bill in writing to the CBP
Port Director with jurisdiction over the location where the billed service was provided within 60
days of the date of posting of the bill. Failure to contest a bill in a timely fashion will result in
the waiver of any refund claims as to such bill. The Requestor acknowledges that, even if the
Requestor contests any charge(s) for which CBP makes demand, the Requestor must continue to
make timely payment of all CBP charges demanded pursuant to this Agreement. This includes,
but is not limited to, demands for payment made at all times during the pendency of any
administrative level reviews or during any periods of judicial review. CBP will coordinate an
immediate review of a contested charge and provide a response or corrective action within 30
calendar days of CBP’s receipt of the Requestor’s written notice of contesting any bill.
If the Requestor fails to comply with the requirement to continue making timely payments of
CBP charges, in addition to a reservation of CBP’s termination rights provided in Section X’s
second paragraph, the Requestor acknowledges that CBP may deny requests for service under
this Agreement until such time as full payment of any outstanding amounts owed to CBP have
been paid to CBP. Requestor further acknowledges that Section 481(j)(2) of the Act provides
CBP with certain other remedies for non-payment in the form of a penalty, liquidated damages,
and/or interest assessments. If all outstanding charges have been paid to CBP, CBP may
consider mitigation of any penalty and/or liquidated damages it is authorized to impose under the
Act. Further, the Requestor may also be subjected to cross servicing referral and enrollment in
the Treasury Offset Program, collection procedures, credit bureau reporting, and litigation by the
Department of Justice.
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IX. Service Commencement Date
Services will become available on a date mutually determined by CBP and the Requestor.
X. Duration, Revision, and Termination of Agreement
This Agreement shall become effective on the day that all signatures of the required parties have
been made, as listed at the end of this Agreement. Further, this Agreement may be amended in
writing at any time by mutual agreement of the parties.
If any amounts billed and due to CBP under the terms of this Agreement are not paid within 15
calendar days of the transmission of any demand, subject to such terms as stated in Section IX
above, or if CBP determines that the Requestor breached any other material condition of this
Agreement, CBP has the right to deny service requests under this Agreement immediately and/or
terminate this Agreement upon 30-days prior written notice, in addition to other remedies
available to CBP under law.
In addition, this Agreement may be terminated for any other reason by either party upon 90-days
prior written notice to the other party.
XI. Availability of Funds
In accordance with 31 U.S.C. § 1341, 41 U.S.C. § 6301, and any other applicable federal laws,
CBP’s provision of services and every term and condition set forth in this Agreement is
contingent upon the availability of appropriated funds. Nothing in this Agreement may be
considered as implying that Congress will at a later date appropriate funds sufficient to meet any
deficiencies. Additionally, nothing in this Agreement may be construed or interpreted to
obligate CBP to any current or future expenditure of funds in advance of, or in excess of, the
availability of appropriations, nor does this Agreement obligate CBP to spend funds for any
particular project or purpose, even if funds are available.
XII. Consultation Process
In the event of a dispute concerning any aspect of this Agreement, either party may request
consultations at any time. The attendance of any outside party during the consultation process is
permitted if necessary to resolve the dispute and mutually agreed to by the parties to this
Agreement in advance of any such consultation.
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The parties will first attempt to resolve any disputes arising under this Agreement through
consultation with the other party at the CBP port level, i.e., with the Port Director and his/her
staff at the affected location(s).
If an issue raised by the Requestor at the CBP port level cannot be resolved, the Requestor shall
then seek resolution through the DFO, with jurisdiction over the affected location(s).
If the issue raised by the Requestor continues to be unresolved after consultation with the DFO,
the Requestor shall then seek resolution through CBP’s OFO Headquarters, which shall provide
the final agency decision. The Requestor may only seek OFO Headquarters review after
exhausting its administrative remedies both at the port-level and the DFO level.
Consultations requested with respect to the amounts of any CBP bill for services do not absolve
the Requestor of its obligations, stated in section IX, to continue to pay costs to CBP while the
consultation process continues.
XIII. Assignment, Sale, Transfer
Only upon CBP’s advanced written approval, the Requestor may transfer, assign, or sell its rights
under this Agreement to a third party. The new party will be required to execute a novation
agreement to substitute its name for the party to this Agreement. Further, upon such transfer,
assignment, or sale, all obligations contained in this Agreement will remain in effect as to CBP
and the new party to the Agreement.
XIV. Limitation of Liability
This Agreement is not intended to establish any liability, unless otherwise established by law,
between the Requestor and CBP employees or the general public, nor is the Agreement intended
to alter or reallocate any potential defense or immunity of any party which may be authorized by
law.
Under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”), the United States is
liable for the negligent or wrongful acts or omissions of any employee of the Government and
claims for money damages, injury, loss of property, personal injury or death, that occur while
that employee is acting within the scope of his or her office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
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XV. Authorization
Agreement to these terms is attested to by the signatures ascribed below. It is agreed that each
individual who is signing on behalf of each party is authorized to enter into this binding
Agreement.
_____________________________ ____________________________
Todd C. Owen Stephen P. Metruck
Executive Assistant Commissioner Executive Director
Office of Field Operations Port of Seattle, WA
U.S. Customs and Border Protection
Date: Date:
