Rule2024-07169
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 4, 2024
Effective
May 6, 2024
Issuing agencies
Homeland Security Department
Abstract
This final rule amends Department of Homeland Security (DHS) regulations by adding procedures regarding DHS's authority to debar from entering U.S. ports 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. The new procedures govern how U.S. Customs and Border Protection (CBP) provides notice to a vessel owner or operator of a debarment and how the owner or operator may request mitigation. The new procedures will ensure that the vessel debarment process is consistent, fair, and transparent.
Full Text
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<title>Federal Register, Volume 89 Issue 66 (Thursday, April 4, 2024)</title>
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[Federal Register Volume 89, Number 66 (Thursday, April 4, 2024)]
[Rules and Regulations]
[Pages 23501-23504]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07169]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 258
[Docket No. USCBP-2022-0016]
RIN 1651-AB20
[CBP Dec. 24-07]
Procedures for Debarring Vessels From Entering U.S. Ports
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Final rule.
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SUMMARY: This final rule amends Department of Homeland Security (DHS)
regulations by adding procedures regarding DHS's authority to debar
from entering U.S. ports 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. The new
procedures govern how U.S. Customs and Border Protection (CBP) provides
notice to a vessel owner or operator of a debarment and how the owner
or operator may request mitigation. The new procedures will ensure that
the vessel debarment process is consistent, fair, and transparent.
DATES: This final rule is effective on May 6, 2024.
FOR FURTHER INFORMATION CONTACT: Lisa Santana Fox, Director, Fines,
Penalties and Forfeitures Division, Office of Field Operations, U.S.
Customs and Border Protection, at 202-344-2730 or
<a href="/cdn-cgi/l/email-protection#3e72574d5f1075106d5f505f4a5f505f7851467e5d5c4e105a564d10595148"><span class="__cf_email__" data-cfemail="f7bb9e8496d9bcd9a496999683969996b1988fb7949587d9939f84d9909881">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background and Legal Authority
Section 258 of the Immigration and Nationality Act of 1952 (INA)
(Pub. L. 82-414, 66 Stat. 163), as amended, prohibits alien crew
members (classified as nonimmigrants under section 101(a)(15)(D) of the
INA, 8 U.S.C. 1101(a)(15)(D)) from entering the United States to
perform longshore work,\1\ subject to certain statutory exceptions. See
INA 258, 8 U.S.C. 1288; see also INA 101(a)(15)(D) and 214(f), 8 U.S.C.
1101(a)(15)(D) and 1184(f). The INA authorizes the Department of
Homeland Security (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. See INA
251(d) and 258(c)(4)(E)(i), 8 U.S.C. 1281(d) and 1288(c)(4)(E)(i); see
also 20 CFR 655.600 and 655.605. The Secretary of Labor will notify the
Secretary of Homeland Security (Secretary) if the Secretary of Labor
determines that a violation has occurred. See INA 258(c)(4)(E)(i), 8
U.S.C. 1288(c)(4)(E)(i). The INA then directs the Secretary 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. See INA
258(c)(4)(E)(i), 8 U.S.C. 1288(c)(4)(E)(i); 8 CFR 258.1(a)(2). The
Secretary has delegated to the Commissioner of U.S. Customs and Border
Protection (CBP) the authority to enforce and administer INA provisions
relating to longshore work, including the authority to debar a vessel.
See DHS Delegation No. 7010.3(B)(11) (Revision No. 03.1).
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\1\ 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. See INA 258(b)(2), 8 U.S.C.
1288(b)(2).
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DHS regulations implementing the longshore work requirements are
set forth in title 8 of the Code of Federal Regulations (CFR) parts 251
and 258. See 8 CFR 251 and 258. However, DHS regulations do not include
procedures for CBP to follow when debarring a vessel, nor do they state
how a vessel owner or operator may request mitigation of a debarment.
In 2022, DHS published a notice of proposed rulemaking (NPRM) to add
procedures for how CBP would notify an entity of a debarment and how a
vessel owner or operator, or its authorized representative, may request
mitigation of the debarment. See 87 FR 21582 (April 12, 2022). The NPRM
proposed procedures to generally codify the steps CBP took in 2009 and
2010, the only times CBP has imposed debarments. The purpose of the
NPRM was to establish consistent, fair, and transparent debarment
procedures for both CBP and the entity subject to the debarment.
The NPRM provided for a 60-day comment period, which closed on June
13, 2022. No comments were received. DHS is adopting the NPRM as final
without change.
II. Procedures for Debarring Vessels From Entering U.S. Ports
This final rule adds 8 CFR 258.4, which specifies the procedures
that CBP will take prior to issuing a debarment and describe how a
vessel owner or operator, or its authorized representative, may request
mitigation of the debarment. These new procedures are described below.
A. Definitions
Paragraph (a) of section 258.4 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, 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. See 8 CFR 258.4(a).
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. See 8 CFR 258.4(a).
CBP notes that 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 include showing that a specific period of business
activity (i.e., fishing season) will 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.
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. See 8
CFR 258.4(a).
[[Page 23502]]
B. Notice of Intent To Debar
Paragraph (b) of section 258.4 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. After receiving notice from
the Secretary of Labor that an entity has violated the relevant
statutes or regulations, CBP will serve a notice of intent to debar on
the entity subject to the notice of violation. See 8 CFR 258.4(b)(1).
Service will be 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. See 8
CFR 258.4(b)(3).
The notice of intent to debar will include specific information,
including: the proposed period of debarment, not to exceed one year;
the ports covered by the proposed debarment; a brief explanation of the
reasons for the proposed debarment; the statutory and regulatory
authority for the proposed debarment; a statement that the entity
subject to the debarment may file an answer and request a mitigation
meeting; 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, 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. See 8 CFR 258.4(b)(2)(i) through (vii).
C. Answer and Request for Mitigation Meeting
Paragraph (c) of section 258.4 describes how an entity should file
an answer with CBP and how to request mitigation and a mitigation
meeting. Any entity upon which the notice of intent to debar 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. See 8 CFR 258.4(c)(1). As explained
previously, the date of service of the notice of intent to debar is the
date the entity received the notice. See 8 CFR 258.4(b)(3).
CBP, in its discretion, may extend the deadline for filing an
answer up to an additional 30 days upon a showing of good cause as
defined in 8 CFR 258.4(a). Upon receipt of a request to extend the
deadline, CBP will respond within five business days by certified mail
or express courier. See 8 CFR 258.4(c)(2)(iv).
The answer must by dated, typewritten or legibly written, signed
under oath, and include the address at which the entity, or its
authorized representative, desires to receive further communication.
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. See 8 CFR 258.4(c)(2)(i).
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 also present evidence in support of any request
for mitigation at a mitigation meeting. See 8 CFR 258.4(c)(2)(ii). A
mitigation meeting will be conducted if the entity subject to the
proposed debarment requests one in accordance with the requirements of
this rule, or if directed at any time by CBP. See 8 CFR
258.4(c)(2)(iii).
D. Disposition of Case
Paragraph (d) of section 258.4 describes how CBP will determine a
final order of debarment for each case. The proposed debarment
specified in the notice of intent to debar will automatically become a
final order of debarment 30 days after service of the notice of intent
to debar if no answer is timely filed or if the answer admits the
allegations and does not request mitigation or a mitigation meeting.
See 8 CFR 258.4(d)(1). 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. See 8 CFR 258.4(c)(2)(iv)
and (d)(1).
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.\2\ CBP will also
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. No appeal from a final order of debarment will be available.
See 8 CFR 258.4(d)(2)-(3).
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\2\ 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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E. Debarment
Paragraph (e) of section 8 CFR 258.4 describes the information CBP
will consider when determining a proposed debarment or a final
debarment. It specifies that CBP, in determining a proposed and a final
debarment, will consider the information received from the Secretary of
Labor, any evidence or arguments timely presented by the entity subject
to the debarment, and other relevant factors. See 8 CFR 258.4(e)(1).
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. See 8 CFR 258.4(e)(2).
F. Notice of Completion of Debarment
Paragraph (f) of section 258.4 states that 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
Paragraph (g) of section 258.4 states that CBP will keep a record
of the debarment proceedings, which includes, but is not limited to,
the materials exchanged between CBP and the parties. The provision
further states that CBP will retain the records in accordance with
CBP's Records Retention Schedule and the Freedom of Information Act.
Currently, this means CBP will retain records for five years, after
which the records will be sent to the National Archives.
III. Statutory and Regulatory Analysis
A. Executive Orders 12866 and 13563
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and 13563
[[Page 23503]]
(Improving Regulation and Regulatory Review), 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, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866, as amended by Executive Order 14094. Accordingly, OMB has
not reviewed this regulation.
Pursuant to section 258 of the INA, CBP has the authority to debar
vessels. See INA 258, 8 U.S.C. 1288. This final rule does not create
that requirement. Rather, this final 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 promulgated 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 its recorded
history, in 2009 and 2010. As described above, the final rule will
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 for debarring vessels
that CBP has followed 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); or 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 in certain situations. This rule does not
create such a requirement. Instead, this final 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, once in 2009 and a
second instance occurring in 2010. Furthermore, CBP is generally
adopting existing practices, and accordingly, costs to violating
entities will not change as a result of this final rule. CBP thus
certifies that this final 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 final rule, so the
provisions of the PRA do not apply.\3\
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\3\ The required Department of Labor attestations are covered by
OMB Control Number 1205-0309.
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D. Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.), as amended,
generally provides that before a major rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Under the Congressional Review Act, a
major rule is one that is likely to result in an annual effect on the
U.S. economy of $100,000,000 or more. See 5 U.S.C. 804(2). This final
rule is not a ``major rule'' as defined by the Congressional Review
Act.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995, enacted as
Public Law 104-4 on March 22, 1995, requires each Federal agency, to
the extent permitted by law, to prepare a written assessment of the
effects of any Federal mandate in a proposed or final agency rule that
may result in the expenditure by state, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million or more
(adjusted annually for inflation) in any one year. See 2 U.S.C.
1532(a). This rule will not result in the expenditure by state, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
IV. Signing Authority
This 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, Seamen.
For the reasons stated in the preamble, DHS amends part 258 of
title 8 of the Code of Federal Regulations as follows:
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 new 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, 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 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
[[Page 23504]]
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 one 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;
(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 the Freedom of Information Act.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-07169 Filed 4-3-24; 8:45 am]
BILLING CODE 9111-14-P
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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.