§ 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 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.
[89 FR 23503, Apr. 4, 2024]