Procedures for Debarring Vessels From Entering U.S. Ports

<RULE> DEPARTMENT OF HOMELAND SECURITY <CFR>8 CFR Part 258</CFR> <DEPDOC>[Docket No. USCBP-2022-0016]</DEPDOC> <RIN>RIN 1651-AB20</RIN> <DEPDOC>[CBP Dec. 24-07]</DEPDOC> <SUBJECT>Procedures for Debarring Vessels From Entering U.S. Ports</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Customs and Border Protection, Department of Homeland Security. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on May 6, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Lisa Santana Fox, Director, Fines, Penalties and Forfeitures Division, Office of Field Operations, U.S. Customs and Border Protection, at 202-344-2730 or <E T="03">Lisa.K.SanatanaFox@cbp.dhs.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background and Legal Authority</HD> 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, <SU>1</SU> <FTREF/> subject to certain statutory exceptions. <E T="03">See</E> INA 258, 8 U.S.C. 1288; <E T="03">see also</E> 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. <E T="03">See</E> INA 251(d) and 258(c)(4)(E)(i), 8 U.S.C. 1281(d) and 1288(c)(4)(E)(i); <E T="03">see also</E> 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. <E T="03">See</E> 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. <E T="03">See</E> 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. <E T="03">See</E> DHS Delegation No. 7010.3(B)(11) (Revision No. 03.1). <FTNT> <SU>1</SU>  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. <E T="03">See</E> 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. <E T="03">See</E> INA 258(b)(2), 8 U.S.C. 1288(b)(2). </FTNT> DHS regulations implementing the longshore work requirements are set forth in title 8 of the Code of Federal Regulations (CFR) parts 251 and 258. <E T="03">See</E> 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. <E T="03">See</E> 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. <HD SOURCE="HD1">II. Procedures for Debarring Vessels From Entering U.S. Ports</HD> 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. <HD SOURCE="HD2">A. Definitions</HD> 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. <E T="03">See</E> 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. <E T="03">See</E> 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 ( <E T="03">i.e.,</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. <E T="03">See</E> 8 CFR 258.4(a). <HD SOURCE="HD2">B. Notice of Intent To Debar</HD> 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. <E T="03">See</E> 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. <E T="03">See</E> 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. <E T="03">See</E> 8 CFR 258.4(b)(2)(i) through (vii). <HD SOURCE="HD2">C. Answer and Request for Mitigation Meeting</HD> 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. <E T="03">See</E> 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. <E T="03">See</E> 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. <E T="03">See</ ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 30k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━