PART 258—LIMITATIONS ON PERFORMANCE OF LONGSHORE WORK BY ALIEN CREWMEN Authority: 8 U.S.C. 1101, 1103, 1281; 8 CFR part 2. Source: 57 FR 40834, Sept. 8, 1992, unless otherwise noted. § 258.1 Limitations—General. (a) Longshore work defined. (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. port § 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. longshore work (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. (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. (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. (4) Sanctions upon notification by the Secretary of Labor. (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. (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. (e) Lack of documentation required by an exception. [57 FR 40834, Sept. 8, 1992, as amended at 86 FR 73630, Dec. 28, 2021] § 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. § 258.4 Debarment of vessels. (a) Definitions. Good cause, Mitigation Mitigation meeting (b) Notice of intent to debar Issuance of notice. (2) Contents of notice. (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. (c) Answer; request for mitigation meeting General. (2) Procedures Form. (ii) Supporting documentation required. (iii) Mitigation meeting. (iv) Good cause extension. (d) Disposition of case No response filed or allegations not contested. (2) Answer filed; mitigation meeting requested. (3) Unavailability of appeal. (4) Notice of final order of debarment. (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 Generally. (2) Other relevant factors. (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. (g) Record. [89 FR 23503, Apr. 4, 2024]