Procedures for Debarring Vessels From Entering U.S. Ports, 23501-23504 [2024-07169]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[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 [www.gpo.gov]
[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 
[email protected].

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]
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