Proposed Rule2022-07774
Procedures for Debarring Vessels From Entering U.S. Ports
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 12, 2022
Issuing agencies
Homeland Security Department
Abstract
The Immigration and Nationality Act (INA) requires the Department of Homeland Security (DHS) to debar from entering U.S. ports any or all vessels owned or chartered by an entity found to be in violation of certain laws and regulations relating to the performance of longshore work by nonimmigrant crew members. This document proposes to amend DHS regulations to set forth the procedures regarding the debarment of such vessels from entering U.S. ports.
Full Text
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<title>Federal Register, Volume 87 Issue 70 (Tuesday, April 12, 2022)</title>
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[Federal Register Volume 87, Number 70 (Tuesday, April 12, 2022)]
[Proposed Rules]
[Pages 21582-21586]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07774]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 70 / Tuesday, April 12, 2022 /
Proposed Rules
[[Page 21582]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 258
[Docket No. USCBP-2022-0016]
RIN 1651-AB20
Procedures for Debarring Vessels From Entering U.S. Ports
AGENCY: U.S. Customs and Border Protection (CBP), Department of
Homeland Security (DHS).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Immigration and Nationality Act (INA) requires the
Department of Homeland Security (DHS) to debar from entering U.S. ports
any or all vessels owned or chartered by an entity found to be in
violation of certain laws and regulations relating to the performance
of longshore work by nonimmigrant crew members. This document proposes
to amend DHS regulations to set forth the procedures regarding the
debarment of such vessels from entering U.S. ports.
DATES: Comments must be received on or before June 13, 2022.
ADDRESSES: Please submit comments, identified by docket number, by the
following method:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments via docket number
[USCBP-2022-0016].
Due to COVID-19-related restrictions, CBP has temporarily suspended
its ability to receive public comments by mail.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Due to relevant
COVID-19-related restrictions, CBP has temporarily suspended its on-
site public inspection of submitted comments.
FOR FURTHER INFORMATION CONTACT: R. Joseph O'Donnell, Jr., Fines,
Penalties and Forfeitures Division, Office of Field Operations, U.S.
Customs and Border Protection, at 202-344-1691 or
<a href="/cdn-cgi/l/email-protection#305a5f435540581e421e5f545f5e5e555c5c705352401e5458431e575f46"><span class="__cf_email__" data-cfemail="3852574b5d4850164a16575c5756565d5454785b5a48165c504b165f574e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
notice of proposed rulemaking. The Department of Homeland Security (DHS
or Department) also invites comments that relate to the economic,
environmental, or federalism effects that might result from this
proposal.
Comments that will provide the most assistance to the Department in
developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change.
II. Background
A. Purpose and Legal Authority
The Immigration and Nationality Act (INA) (Pub. L. 82-414, 66 Stat.
163 (1952)), as amended, addresses whether nonimmigrants may be
admitted into the United States and, if so, under what conditions.
Section 258 of the INA prohibits alien crew members (classified as
nonimmigrants under INA 101(a)(15)(D)) from entering the United States
in order to perform longshore work, subject to certain statutory
exceptions. See 8 U.S.C. 1288; see also 8 U.S.C. 1101(a)(15)(D) and
1184(f). Longshore work is defined as any activity in the United States
or in U.S. coastal waters relating to the loading or unloading of
cargo, the operation of cargo-related equipment (whether or not
integral to the vessel), and the handling of mooring lines on the dock
when the vessel is made fast or let go. See INA 258(b)(1) (8 U.S.C.
1288(b)(1)). Longshore work does not include the loading or unloading
of certain cargo including oil and hazardous substances and materials
for which the Secretary of Transportation has prescribed regulations
governing cargo handling or storage; the manning of vessels and the
duties, qualifications, and training of the officers and crew of
vessels carrying such cargo; and the reduction or elimination of
discharge during ballasting, tank cleaning, and handling of such
cargo.\1\ See INA 258(b)(2) (8 U.S.C. 1288(b)(2)). DHS regulations
implementing this statutory prohibition are set forth in title 8 of the
Code of Federal Regulations (CFR) parts 251 and 258.
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\1\ See, e.g., 49 CFR part 176.
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The INA authorizes DHS and the Secretary of Labor to investigate
violations of and enforce the INA provisions relating to the
performance of longshore work by nonimmigrant crew members.
Specifically, DHS is authorized to issue a fine for the illegal
performance of longshore work and is required, upon notification of a
violation from the Secretary of Labor, to debar any vessel owned or
chartered by the violating entity from entering U.S. ports for a period
not to exceed one year. See INA 251(d) and 258(c)(4)(E)(i) (8 U.S.C.
1281(d) and 1288(c)(4)(E)(i)); 8 CFR 258.1(a)(2). DHS has delegated to
U.S. Customs and Border Protection (CBP) the authority to enforce and
administer INA provisions relating to longshore work, including the
authority to issue a fine and debar a vessel. See DHS Delegation No.
7010.3(B)(11) (Revision No. 03.1).
Although the regulations (8 CFR part 280) specify the procedures
CBP will follow prior to imposing a fine for a violation of the INA,
including how an entity may contest or seek mitigation of a fine, there
currently are no regulations that specify the procedures for debarring
vessels. This was illuminated in 2009 and 2010, when CBP received a
notification of violation from the Secretary of Labor. CBP served the
violating entity (identified in the notification received from the
Secretary of Labor) a letter by registered mail indicating CBP's intent
to debar the vessels owned or chartered by the violating entity. CBP
provided the violating entity with the opportunity to request
mitigation, meet with CBP, and present evidence and any briefs in
support of the request for mitigation. CBP considered all of the
relevant evidence and determined an appropriate debarment, which was
communicated to the violating entity in writing by registered mail. In
order to establish consistent, fair, and transparent
[[Page 21583]]
debarment procedures, DHS proposes amending 8 CFR part 258 to set forth
the debarment procedures. The proposed procedures generally codify the
steps CBP took in its 2009 and 2010 debarments, which were the only
times CBP has conducted debarments, while clarifying and formalizing
the process and procedures for both CBP and the violating entity
subject to the debarment.
B. INA Exceptions Authorizing Longshore Work by Nonimmigrant Crew
Members
Subject to certain exceptions, nonimmigrant crew members are
prohibited from performing longshore work in the United States or in
U.S. coastal waters. See INA 258 (8 U.S.C. 1288); 8 CFR 258.1 and 8 CFR
258.2. The exceptions are (1) the prevailing practice exception; (2)
the State of Alaska exception; and (3) the reciprocity exception. See 8
U.S.C. 1288(c)-(e); 8 CFR 258.2.\2\ Prior to the performance of
longshore work under any of the exceptions, the vessel master or agent
who uses nonimmigrant crew members must comply with regulations and
procedures of both the Department of Labor (DOL) and CBP. If the
Secretary of Labor determines that the entity has failed to follow DOL
regulations regarding these statutory exceptions and that a violation
has occurred, the DOL will notify CBP as set forth below.
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\2\ The exceptions are set forth in the Department of Labor
regulations in title 20 of the CFR. For information on the
reciprocity exception, see 20 CFR 655.500(a)(1)(i). For information
on the prevailing practice exception, see 20 CFR 655.510. For
information on the State of Alaska exception, see 20 CFR 655.530-
655.541.
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DOL Procedures and Enforcement
Pursuant to DOL regulations, in order to invoke either the
prevailing practice exception (under certain circumstances) or the
State of Alaska exception, the vessel master or agent who uses
nonimmigrant crew members must file an attestation with the Secretary
of Labor prior to the performance of any longshore work.\3\ See 20 CFR
655.510 and 655.530-655.541. The attestation must specify which
exception the vessel master or agent is invoking, contain the required
attestation elements, and be accompanied by facts and evidence
demonstrating that the particular exception is applicable. See 20 CFR
655.510 and 655.533.
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\3\ An attestation is required in order to invoke the prevailing
practice exception when there is no collective bargaining agreement
or when the Secretary of Labor has announced that an attestation is
required to use an automated self-unloading conveyor belt or vacuum-
actuated system. See 8 U.S.C. 1288(c)(1)(A)(i) and 1288(c)(1)(B); 20
CFR 655.500(b)(2), 655.510(a), and 655.520.
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The Secretary of Labor has the authority to investigate alleged
violations of the INA relating to the performance of longshore work,
including any violations arising out of an attestation. See 20 CFR
655.600 and 655.605. If the Secretary of Labor investigates an alleged
violation and makes a final determination that the vessel master or
agent has failed to meet a condition attested to or has misrepresented
a material fact in an attestation, the Secretary must notify CBP of the
violation. INA 258(c)(4)(E)(i) and 258(d)(5)(A) (8 U.S.C.
1288(c)(4)(E)(i) and 1288(d)(5)(A)). The Secretary of Labor may also
impose a civil monetary penalty for each nonimmigrant crew member with
respect to whom there has been a violation of the INA. INA
258(c)(4)(E)(i) (8 U.S.C. 1288(c)(4)(E)(i)); 20 CFR 655.620.
CBP Procedures and Enforcement
After filing any necessary attestation with the Secretary of Labor,
the owner or master of a vessel intending to invoke one of the
exceptions must deliver to CBP the Passenger List and Crew List (CBP
Form I-418 or its electronic equivalent), indicate that nonimmigrant
crew members will perform longshore work, and specify under which
exception the work is permitted. See 8 CFR 251.1(a)(2) and 258.3. A
vessel owner or operator must also submit any documentation required
pursuant to 8 CFR 258.2. In order to rely on the exceptions that
require an attestation, the vessel master or agent must present to CBP
the notification received from the Secretary of Labor that the required
attestation has been accepted. 8 CFR 258.2(b)(2)(iii).
Upon notification of a violation from the Secretary of Labor that
the vessel master or agent has failed to meet a condition attested to
or has misrepresented a material fact in an attestation, CBP is
required to debar any vessel or vessels owned or chartered by the
violating entity from entering U.S. ports for a period not to exceed
one year. INA 258(c)(4)(E)(i) and 258(d)(5)(A) (8 U.S.C.
1288(c)(4)(E)(i) and 1288(d)(5)(A)).
Additionally, CBP may investigate violations of the INA relating to
longshore work and may impose a monetary fine on an owner, agent,
consignee, master, or commanding officer who permits nonimmigrant crew
members to perform longshore work in a manner inconsistent with the
INA. INA 251(d) (8 U.S.C. 1281(d)); 8 CFR 258.1(a)(2).
III. Proposed Amendments
This document proposes to add to the regulations the procedures CBP
will follow in order to debar vessels from entering U.S. ports after
receiving a notification of a violation from the Secretary of Labor
pursuant to 8 CFR part 258. The relevant details are provided below.
Part 258
8 CFR part 258 sets forth the regulations regarding the limitations
on the performance of longshore work by nonimmigrant crew members.
Section 258.1 sets forth the general prohibition of nonimmigrants
performing longshore work, other than pursuant to the specified
exceptions, and provides definitions. Section 258.2 describes the
exceptions under which nonimmigrant crew members may perform longshore
work in the United States. Section 258.3 describes the actions a master
or agent of a vessel must take in order to rely on one of the
exceptions.
In this document, DHS proposes to add a new Sec. 258.4, which will
outline procedures for debarring vessels following notification from
the Secretary of Labor, including how CBP determines the debarment and
how the violating entity may request mitigation. In general, the
proposed debarment procedures would require CBP to issue a notice of
intent to debar, which would be served on the violating entity. CBP
would also provide an opportunity for the violating entity to file an
answer, submit documentary evidence, and request a mitigation meeting
with CBP. The proposed procedures also require CBP to issue a final
order of debarment. The details of proposed Sec. 258.4 are set forth
below.
A. Definitions Applicable to CBP's Debarment Proceedings
Proposed paragraph (a) sets forth definitions for the following
terms for purposes of CBP's debarment proceedings: Good cause,
mitigation, and mitigation meeting. Good cause, for purposes of
extending the deadline for filing an answer in CBP's debarment
proceedings, would include instances in which the violating entity is
experiencing technical difficulties affecting its ability to receive,
process, or transmit relevant information or data; natural disasters
that affect the violating entity's ability to retrieve, process, or
transmit relevant information or data; or, other instances in which
CBP, in its discretion, determines an undue hardship warrants an
extension of the deadline for filing an answer. A mitigation meeting,
for purposes of
[[Page 21584]]
CBP's debarment proceedings, would be a personal appearance before a
designated CBP official in which representatives of the violating
entity can provide information and explain why CBP should mitigate the
debarment. Mitigation in a debarment proceeding would mean determining
the length of the debarment, the ports covered by the debarment, and
the vessels subject to the debarment. It does not include revocation of
the requirement to debar.
B. Notice of Intent To Debar
Proposed paragraph (b) sets forth the procedures pertaining to the
issuance of a notice of intent to debar and specifies the information
to be included in such notice and the rights of the violating entity.
It provides that CBP will cause the notice of intent to debar to be
served on the entity subject to the debarment by a method that
demonstrates receipt by the addressee, such as certified mail with
return receipt or express courier delivery, and provides that the date
of service is the date of receipt.
It further provides that the notice of intent to debar will include
the following information: The proposed period of debarment, not to
exceed one year; the ports covered by the proposed debarment; a brief
explanation of CBP's reasons for the proposed debarment; and the
applicable statutory and regulatory authority for the proposed
debarment. The notice will also notify the entity subject to the
proposed debarment that it may file an answer and request a mitigation
meeting and will set forth the procedures for doing so. The notice of
intent to debar will also notify the violating entity that in the
absence of a timely filed answer, the proposed debarment will become
final 30 days after service of the notice of intent to debar.
C. Answer; Request for Mitigation Meeting
Proposed paragraph (c) covers the procedures relating to filing an
answer and supporting documentation with CBP and requesting mitigation
and a mitigation meeting. It provides that all notifications and
correspondences between CBP and the violating entity with respect to
the debarment proceedings will be done in writing and transmitted using
certified mail or express courier.\4\ It further provides that an
entity that receives a notice of intent to debar will have 30 days from
service of the notice to file an answer with CBP, but permits CBP, in
its discretion, to extend the deadline for filing an answer up to an
additional 30 days upon a showing of good cause.\5\ It further provides
that the answer must be filed by the entity identified in the notice of
intent to debar, or its authorized representative. The answer must be
dated, typewritten or legibly written, signed under oath, and include
the address at which the entity, or its authorized representative,
desires to receive further communications. The answer must set forth
specific reasons why the proposed debarment should be mitigated and
state whether a mitigation meeting is requested.\6\ It further
specifies that a mitigation meeting will be conducted if the entity
subject to the proposed debarment requests one or if directed at any
time by CBP.\7\
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\4\ A notice of intent to debar will debar only one violating
entity. If there is more than one violating entity, separate notices
will be issued to each.
\5\ Good cause, for purposes of extending the deadline for
filing an answer, includes: Technical difficulties or natural
disasters that affect the violating entity's ability to receive,
process, or transmit relevant information or data; or other
instances in which CBP, in its discretion, determines an undue
hardship on the violating entity warrants an extension of the
deadline for filing an answer.
\6\ A violating entity may mitigate its length of debarment by
showing that a specific period of debarment would have a negative
impact on the U.S. economy and/or U.S. citizens/consumers. Examples
of this would include showing that a specific period of business
activity (i.e., fishing season) would be negatively impacted if a
vessel were debarred, or that a vessel will be transporting produce
or a type of perishable consumer good to the United States within a
specific time frame for which debarment would be detrimental.
\7\ The violating entity may request a mitigation meeting to
mitigate the length of the debarment period, the ports covered by
the debarment, and the number of vessels subject to the debarment.
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Proposed paragraph (c) also provides that if an entity requests
mitigation, it must submit to CBP both an answer and documentary
evidence in support of the request for mitigation. The entity is also
permitted to file a brief in support of any arguments made. If a
mitigation meeting is requested, the entity may present evidence in
support of any request for mitigation at that time. CBP can require
that the answer and any supporting documentation be in English or be
accompanied by an English translation, certified by a competent
translator.\8\
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\8\ See, e.g., 8 CFR 204.1(f)(3), 274a.2(b)(1)(i)(A). See also 8
CFR 1003.33 (Department of Justice Executive Office for Immigration
Review's rule on documents submitted to the immigration court).
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D. Disposition of Case
Proposed paragraph (d) states how CBP will determine a final order
of debarment for each case. Specifically, proposed paragraph (d) states
that if an entity that receives service of a notice of intent to debar
does not timely file an answer or if the entity admits the allegations
and does not request mitigation or a mitigation meeting, the proposed
debarment will automatically become a final order of debarment 30 days
after service of the notice of intent to debar. If CBP grants a good
cause extension to the deadline for filing an answer, but no answer is
timely filed, the proposed debarment will automatically become a final
order of debarment when the time for filing an answer expires. If an
entity timely files an answer that requests mitigation or a mitigation
meeting, CBP will determine a final debarment and will issue to the
entity a final order of debarment in writing. No appeal from a final
order of debarment will be available.
E. Debarment
Proposed paragraph (e) states that CBP will determine a proposed
debarment or a final debarment by considering the information received
from the Secretary of Labor in the notice of violation, any evidence or
arguments timely presented by the entity subject to the debarment, and
any other relevant factors.\9\ Other relevant factors include, but are
not limited to, the entity's previous history of violations of any
provision of the INA, the number of U.S. workers adversely affected by
the violation, the gravity of the violation, the entity's efforts to
comply in good faith with regulatory and statutory requirements
governing performance of longshore work by nonimmigrant crew members,
the entity's remedial efforts and commitment to future compliance, the
extent of the entity's cooperation with the investigation, and the
entity's financial gain/loss due to the violation. CBP will also
consider the potential financial loss, injury, or adverse effect to
other parties, including U.S. workers, likely to result from the
debarment, including whether the debarment is likely to result in the
loss of job opportunities for U.S. workers.
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\9\ The information received from the Secretary of Labor,
evidence or arguments timely presented by the entity subject to the
debarment, and any other relevant factors that CBP considers in its
determination of the debarment will be disclosed in its final
determination of debarment to the violating entity.
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CBP will submit final orders of debarment to all U.S. ports of
entry, prohibiting entry of the violating entity's vessel(s) during the
debarment. CBP will send a notice of final order to each violating
entity. CBP will also send a notice of final order to any entity that
has submitted a request to CBP of interest in the debarment proceeding.
[[Page 21585]]
F. Notice of Completion of Debarment and Record
Proposed paragraph (f) states that upon completion of the
debarment, CBP will send a notice to all interested parties, including
the entity subject to the debarment and the relevant U.S. ports of
entry, that the entity subject to the debarment has completed the
debarment and is once again permitted to enter U.S. ports.
Additionally, proposed paragraph (g) states that CBP will keep a
complete record of the debarment proceedings. CBP will retain the
records for 5 years, after which the records will be sent to the
National Archives. Records retention and access to records will conform
to the Records Retention Schedule and Freedom of Information Act.
IV. Statutory and Regulatory Analysis
A. Executive Orders 12866 and 13563
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is not a ``significant regulatory action,''
under section 3(f) of Executive Order 12866. Accordingly, the Office of
Management and Budget (OMB) has not reviewed this regulation.
Pursuant to section 258 of the INA, CBP is required to debar
vessels. This rule does not create that requirement. Rather, this
proposed rule would codify and clarify existing practice, with some
exceptions, that CBP follows in carrying out that requirement.
Accordingly, even without this rule, CBP still has the authority to
debar vessels. This rule is being proposed to avoid confusion and to
have, in writing, a clear and consistent process for the debarment of
vessels.
CBP has debarred vessels in only two instances in the agency's
recorded history, in 2009 and 2010. As described above, the proposed
rule would generally codify the procedures CBP followed when debarring
vessels in 2009 and 2010, with changes only to the type of mail service
CBP uses to serve notices of intent to debar. The process CBP follows
for debarring vessels is not changing as a result of this rule.
Therefore, this rule has no economic impact on violating entities.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires agencies to assess the impact of regulations on small
entities. A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business per the Small Business Act); a small
not-for-profit organization; or a small governmental jurisdiction
(locality with fewer than 50,000 people). As explained above, pursuant
to section 258 of the INA, CBP is required to debar vessels. This rule
does not create that requirement. Rather, this proposed rule would
codify and clarify the existing procedures, with some exceptions, that
CBP follows in carrying out that requirement. These procedures are
seldom used as CBP has debarred vessels in only two instances--in 2009
and in 2010. Furthermore, CBP is generally adopting existing practices,
and costs to violating entities would not change as a result of this
rule. Therefore, CBP certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
C. Paperwork Reduction Act
The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d))
requires that CBP consider the impact of paperwork and other
information collection burdens imposed on the public. An agency may not
conduct, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number assigned by the Office of Management and Budget. There
is no information collection associated with this proposed rule, so the
provisions of the PRA do not apply.\10\
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\10\ The required DOL attestations are covered by OMB Control
Number 1205-0309.
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V. Signing Authority
This proposed regulation is being issued in accordance with 19 CFR
0.2(a) pertaining to the Secretary of Homeland Security's authority (or
that of his delegate) to approve regulations that are not related to
customs revenue functions.
List of Subjects in 8 CFR Part 258
Aliens, Longshore and harbor workers, Reporting and recordkeeping
requirements, Seaman.
Proposed Regulatory Amendments
Amendments to the Regulations
For the reasons stated in the preamble, DHS proposes to amend part
258 of title 8 CFR (8 CFR part 258) as set forth below.
PART 258--LIMITATIONS ON PERFORMANCE OF LONGSHORE WORK BY ALIEN
CREWMEN
0
1. The authority citation for part 258 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1281; 8 CFR part 2.
0
2. Add Sec. 258.4 to read as follows:
Sec. 258.4 Debarment of vessels.
(a) Definitions. The following definitions apply throughout this
section:
Good cause, for purposes of extending the deadline for filing an
answer, include: Technical difficulties or natural disasters that
affect the violating entity's ability to receive, process, or transmit
relevant information or data; or other instances in which CBP, in its
discretion, determines that an undue hardship on the violating entity
warrants an extension of the deadline for filing an answer.
Mitigation in a debarment proceeding means determining the length
of the debarment, the ports covered by the debarment, and the vessels
subject to the debarment. It does not include revocation of the
requirement to debar.
Mitigation meeting is a personal appearance before a designated CBP
official in which representatives of the violating entity can provide
information and explain why CBP should mitigate the debarment.
(b) Notice of intent to debar--(1) Issuance of notice. Upon receipt
of a notice of violation from the Secretary of Labor pursuant to
section 258 of the Immigration and Nationality Act (8 U.S.C.
1288(c)(4)(E)(i)), CBP will serve a notice of intent to debar on the
entity subject to the notice of violation, as provided in paragraph
(b)(3) of this section.
(2) Contents of notice. The notice of intent to debar will include
the following:
(i) The proposed period of debarment, not to exceed 1 year;
(ii) The ports covered by the proposed debarment;
(iii) A brief explanation of the reasons for the proposed
debarment;
(iv) The statutory and regulatory authority for the proposed
debarment;
(v) A statement that the entity subject to the debarment may file
an answer and request a mitigation meeting pursuant to paragraph (c) of
this section;
[[Page 21586]]
(vi) The procedures for filing an answer and requesting a
mitigation meeting, including the date by which the answer must be
received and the address to which it may be submitted; and
(vii) A statement that in the absence of a timely filed answer, the
proposed debarment will become final 30 days after service of the
notice of intent to debar.
(3) Service. The notice of intent to debar will be served by a
method that demonstrates receipt, such as certified mail with return
receipt or express courier delivery, by the entity identified in the
notice of violation received from the Secretary of Labor. The date of
service is the date of receipt.
(c) Answer; request for mitigation meeting--(1) General. Any entity
upon which the notice has been served, or its authorized
representative, may file with CBP an answer that indicates the specific
reasons why the proposed debarment should be mitigated and whether a
mitigation meeting is requested. CBP must receive the answer within 30
days from the date of service of the notice of intent to debar.
(2) Procedures--(i) Form. The answer must be dated, typewritten or
legibly written, signed under oath, and include the address at which
the entity or its authorized representative desires to receive further
communications. CBP may require that the answer and any supporting
documentation be in English or be accompanied by an English translation
certified by a competent translator.
(ii) Supporting documentation required. In addition to an answer,
any entity responding to a notice of intent to debar must submit
documentary evidence in support of any request for mitigation and may
file a brief in support of any arguments made. The entity may present
evidence in support of any request for mitigation at a mitigation
meeting.
(iii) Mitigation meeting. A mitigation meeting will be conducted if
requested by the entity subject to the proposed debarment in accordance
with the requirements of this section, or if directed at any time by
CBP.
(iv) Good cause extension. CBP, in its discretion, may extend the
deadline for filing an answer up to an additional 30 days from the
original receipt of CBP's notice upon a showing of good cause. Upon
receipt of a request to extend the deadline for filing an answer, CBP
will respond to the request for an extension within 5 business days by
certified mail or express courier.
(d) Disposition of case--(1) No response filed or allegations not
contested. If no answer is timely filed or the answer admits the
allegations in the notice of intent to debar and does not request
mitigation or a mitigation meeting, the proposed debarment specified in
the notice of intent to debar automatically will become a final order
of debarment 30 days after service of the notice of intent to debar. If
CBP grants a good cause extension pursuant to paragraph (c)(2)(iv) of
this section, and no answer is timely filed, the proposed debarment
automatically will become a final order of debarment when the time for
filing an answer expires.
(2) Answer filed; mitigation meeting requested. If an answer is
timely filed that requests mitigation and/or a mitigation meeting, CBP
will determine a final debarment in accordance with paragraph (e) of
this section.
(3) Unavailability of appeal. The final order of debarment is not
subject to appeal.
(4) Notice of final order of debarment. (i) CBP will issue to the
entity subject to the debarment a final order of debarment in writing.
(ii) CBP will send notice, by certified mail or express courier, to
all interested parties, including the relevant U.S. ports of entry,
that the entity subject to the debarment is debarred and stating the
terms of the debarment.
(e) Debarment--(1) Generally. In determining a proposed debarment
and a final debarment, CBP will consider the information received from
the Secretary of Labor, any evidence or arguments timely presented by
the entity subject to the debarment, and any other relevant factors.
(2) Other relevant factors. Other relevant factors include, but are
not limited to, the following:
(i) The previous history of violations of any provision of the INA
by the entity subject to the debarment;
(ii) The number of U.S. workers adversely affected by the
violation;
(iii) The gravity of the violation;
(iv) The efforts made by the entity subject to the debarment to
comply in good faith with the regulatory and statutory requirements
governing performance of longshore work by nonimmigrant crewmen;
(v) The remedial efforts by the entity subject to the debarment;
(vi) The commitment to future compliance by the entity subject to
the debarment;
(vii) The extent of cooperation with the investigation by the
entity subject to the debarment;
(viii) The extent of financial gain/loss to the entity subject to
the debarment due to the violation; and
(ix) The potential financial loss, injury, or adverse effect to
other parties, including U.S. workers, likely to result from the
debarment.
(f) Notice of completion of debarment. Upon completion of any
debarment, CBP will send notice, by certified mail or express courier,
to all interested parties, including the entity subject to the
debarment, and the relevant U.S. ports of entry, that the entity
subject to the debarment has completed the debarment and is once again
permitted to enter U.S. ports.
(g) Record. CBP will keep a record of the debarment proceedings
which includes, but is not limited to, the materials exchanged between
CBP and the parties. Records will be retained in accordance with CBP's
Records Retention Schedule and Freedom of Information Act.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2022-07774 Filed 4-11-22; 8:45 am]
BILLING CODE 9111-14-P
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</html>Indexed from Federal Register on April 12, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.