CFR Part 258

CFR Part 258
in effect

8 C.F.R. § 258.1 Limitations—General.

(a) Longshore work defined. Longshore work means any activity relating to the loading and 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, in the United States or the coastal waters thereof. (1) Longshore work is not included in the term “normal operation and service on board a vessel” for the purposes of section 101(a)(15)(D)(i) of the Act except as provided in sections 258 (c) or (d) of the Act. (2) A vessel that uses nonimmigrant crewmen to perform longshore work, other than the activities allowed in particular circumstances under § 258.2 (a)(2), (b), or (c) of this part, shall be subject to a fine under section 251(d) of the Act. (b) Port defined. For purposes of this section, the term port means a geographic area, either on a seacoast, lake, river, or other navigable body of water, which contains one or more publicly or privately owned terminals, piers, docks, or maritime facilities, which is commonly regarded as a port by other government maritime related agencies, such as the Maritime Administration.

8 C.F.R. § 258.2 Exceptions.

Any master or agent who uses nonimmigrant crewmen to perform longshore work at any United States port under the exceptions provided for in paragraphs (a)(2), (b), or (c) of this section must so indicate on the crew manifest and must indicate under which exception the work will be performed. (a) Hazardous cargo. (1) The term longshore work does not include the loading and unloading of any cargo for which the Secretary of Transportation has prescribed regulations under authority contained in chapter 37 of title 46, United States Code, section 311 of the Federal Water Pollution Control Act, section 4106 of the Oil Pollution Act of 1990, or section 105 or 106 of the Hazardous Materials Transportation Act. (2) In order to invoke the hazardous cargo exception for safety and environmental protection, the master or agent must indicate in the manifest that the vessel is a qualifying tanker or carries hazardous dry bulk cargo. (i) All tankers qualify for the hazardous cargo exception, including parcel tankers, except for a tanker that has been gas-freed to transport non-hazardous dry bulk commodities. (ii) In order for a vessel to qualify for the hazardous cargo exception as a dry bulk hazardous cargo carrier, the master or agent must show the immigration officer the dangerous cargo manifest that is required by Coast Guard regulation 46 CFR 148.02-3(a) to be kept near the bridge house. (b) Prevailing practice exception. (1) Nonimmigrant crewmen may perform longshore work under this exception if: (i) There is in effect in the local port one or more collective bargaining agreements, each covering at least 30 percent of the persons performing longshore work at the port, and each of which permits the longshore activity to be performed by the nonimmigrant crewman, or (ii) There is no collective bargaining agreement in effect in the local port covering at least 30 percent of the persons performing longshore work at the port, and the employer of the crewmen has filed an attestation with the Secretary of Labor that the Secretary of Labor has accepted. (2) Documentation to be presented under the prevailing practice exception. (i) If the master or agent indicates in the manifest, or on Form I-418 if submitting the paper version, that nonimmigrant crewmen will perform longshore work at a port under the prevailing practice exception as permitted by all collective bargaining agreements covering 30 percent or more of the persons performing longshore work at the port, then the master or agent must present to the examining immigration officer an affidavit from the local stevedore. The stevedore or a union representative of the employees' association must state on the affidavit that all bargaining agreements covering 30 percent or more of the longshore workers at the port allow nonimmigrant crewmen either to perform all longshore work or to perform those specified longshore activities that crewmen on the vessel intend to perform. (ii) Where there is no collective bargaining agreement in effect at a port covering at least 30 percent of the persons who do longshore work, and the master or agent indicates in the manifest that nonimmigrant crewmen will perform such work under the prevailing practice exception, then the master or agent must present a copy of the notification received from the Secretary of Labor that the attestation required for this exception has been accepted. (iii) When an unanticipated emergency occurs, the master or agent of a vessel may file an attestation with the Secretary of Labor up to the date on which crewmen perform longshore work. (A) If, because of an unanticipated emergency, crewmen on a vessel perform longshore work under the prevailing practice exception at a port, a revised manifest must be submitted together with complete documentation, as specified in paragraph (b)(2)(ii) of this section, within 14 days of the longshore work having been done. Failure to present the required documentation may result in a fine under section 251 of the Act. (B) All documents submitted after inspection must be sent to the CBP seaport office that inspected the vessel. (iv) Attestations are valid for one year from the date of filing and cover nonimmigrant crewmen landing during that period if the master or agent indicates in the manifest that the vessel's crew continue to comply with the conditions in the attestation. When the vessel's master or agent intends to use a previously accepted attestation that is still valid, the master or agent must submit a copy of the notification from the Secretary of Labor that the attestation was accepted and must indicate in the manifest that the vessel continues to comply with the conditions of the attestation. (3) Use of automated self-unloading conveyor belt or vacuum-actuated system on a vessel. An automated self-unloading conveyor belt or a vacuum-actuated system may be operated by a nonimmigrant crewman under the prevailing practice exception when no collective bargaining agreement at the local port prevents it. The master or agent is not required to file an attestation for nonimmigrant crewmen to perform such activity in such a circumstance unless the Secretary of Labor has determined that such activity is not the prevailing practice at that port, and has publicized this finding. When invoking this exception, the master or agent of the vessel must indicate in the manifest that the longshore work consists of operating a self-unloading conveyor belt or a vacuum-actuated system on the vessel under the prevailing practice exception. (4) Sanctions upon notification by the Secretary of Labor. If CBP is notified by the Secretary of Labor that an entity has either misrepresented facts in its attestation or has failed to meet a condition attested to, then CBP will take the necessary steps to prevent the landing of vessels owned or chartered by the offending entity in accordance with section 258(c)(4)(E)(i) of the Act. CBP may also impose a sanction as provided in that section, including the prohibition of any vessel owned or chartered by the violating entity from landing at any United States port for up to one year. (5) The three variations of the prevailing practice exception—collective bargaining agreement, attestation process, and automated equipment—are port specific. If a vessel is to use nonimmigrant crewmen to perform longshore work under the prevailing practice exception, the appropriate documentation required under paragraph (b)(2) of this section must be presented for each port at which the longshore work will be performed. (c) Reciprocity exception. Nonimmigrant crewmen may perform longshore work in a United States port under this exception if: (1) The vessel on which the crewmen serve is registered in a country that does not prohibit crewmen aboard United States vessels from performing longshore work, or a specified longshore activity, when United States vessels land in that country, as determined by the Secretary of State; and (2) The master or agent presents an affidavit from the crewmen's employer or the vessel's owner that a majority of the ownership interest in the vessel is held by nationals of a country or countries that do not prohibit such longshore activity by crewmen aboard United States vessels when they land in those countries. (d) Vessels that qualify for multiple exceptions. A vessel that qualifies for more than one exception under this section may invoke the exception that the master or agent chooses. (e) Lack of documentation required by an exception. If a vessel invokes an exception to the prohibition against nonimmigrant crewmen performing longshore work, but lacks any documentation required to accompany the manifest when invoking the exception, then the vessel's crewmen must not perform longshore work. If the longshore work is performed despite the lack of documentation that the immigration officer has indicated on the electronically populated, or in the circumstances specified in section 251.1 of this chapter, paper, Form I-418, then the vessel is subject to fine under section 251(d) of the Act.

8 C.F.R. § 258.3 Action upon arrival.

(a) The master or agent of the vessel shall state on the manifest at the first port of entry: (1) Whether or not nonimmigrant crewmen aboard the vessel will perform longshore work at any port before departing the United States; and (2) If nonimmigrant crewmen will perform longshore work, which exception in section 258 of the Act permits them to do so. (b) If nonimmigrant crewmen will perform longshore work, the master or agent of the vessel shall present with the manifest any documentation required by 8 CFR 258.2 for the exception invoked. (c) If, at the time of inspection, the master or agent fails to present the documentation required for the exception invoked, then the vessel is prohibited from using nonimmigrant crewmen to perform longshore work. If crewmen aboard the vessel perform longshore work despite the prohibition, the vessel is subject to fine under section 251(d) of the Act. (d) The examining immigration officer shall give the master or agent a Receipt for Crew List, Form I-410, on which the officer shall note whether or not nonimmigrant crewmen will do longshore work at any port of call and, if so, under which exception. The officer shall also note which documentation supporting the exception accompanied the manifest, and any failure to present documentation which failure would prohibit crewmen from performing longshore work under the exception that the vessel invoked. (e) If a vessel's crewmen perform longshore activity not sanctioned by an exception but performed to prevent the imminent destruction of goods or property; severe damage to vessels, docks, or real estate; possible environmental contamination; or possible injury or death to a person, a concise report of the incident shall be made within 14 days of the incident to the Immigration and Naturalization Service seaport office that performed the inspection. If the Service agrees that the situation was one of imminent danger requiring immediate action, no fine will be imposed for the performance of a longshore activity in this isolated instance. (f) Failure to deliver true and complete information on the manifest or any documentation required to support an exception may result in a fine against the owner, agent, consignee, master, or commanding officer under section 251(d) of the Act.

8 C.F.R. § 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.

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