(a) If the Administrator determines that reasonable cause exists to
conduct an investigation with respect to an attestation, the complainant
may request that the Administrator enter a cease and desist order
against the employer against whom the complaint is lodged.
(1) The request for a cease and desist order may be filed along with
the complaint, or may be filed subsequently. The request, including all
accompanying documents, shall be filed in duplicate with the same Wage
and Hour Division office that received the complaint.
(2) No particular form is prescribed for a request for a cease and
desist order pursuant to this paragraph (a). However, any such request
shall:
(i) Be dated;
(ii) Be typewritten or legibly written;
(iii) Specify the attestation provision(s) with respect to which the
employer allegedly failed to comply and/or submitted
misrepresentation(s) of material fact(s);
(iv) Be accompanied by evidence to substantiate the allegation(s) of
noncompliance and/or misrepresentation;
(v) Be signed by the complaining party making the request or by the
authorized representative of such party;
(vi) Include the address at which such complaining party or
authorized representative desires to receive further communications
relating thereto.
(3) Upon receipt of a request for a cease and desist order, the
Administrator shall promptly notify the employer of the request. The
Administrator's notice shall:
(i) Inform the employer that it may respond to the request and meet
with a Wage and Hour Division official within 14 calendar days of the
date of the notice;
(ii) Be served upon the employer by facsimile transmission, in
person, or by certified or regular mail, at the address of the U.S.
agent stated on the employer's attestation;
(iii) Be accompanied by copies of the complaint, the request for a
cease and desist order, the evidence submitted by the complainant, and
any evidence from other investigation(s) of the same or a closely
related matter which the Administrator may incorporate into the record.
(Any such evidence from other investigation(s) shall also be made
available for examination by the complaining party at the Wage and Hour
Division office which issued the notice.)
(4) No particular form is prescribed for the employer's response to
the complaining party's request for a cease and desist order under this
paragraph (a), however, any such response shall:
(i) Be dated;
(ii) Be submitted by facsimile transmission, in person, by certified
or regular mail, or by courier service to the Wage and Hour Division
office which issued the notice of the request;
(iii) Be received by the appropriate Wage and Hour Division office
no later than 14 calendar days from the date of the notice of the
request;
(iv) Be typewritten or legibly written;
(v) Explain, in any detail desired by the employer, the employer's
grounds or reasons as to why the Administrator should deny the requested
cease and desist order;
(vi) Be accompanied by evidence to substantiate the employer's
grounds or reasons as to why the Administrator should deny the requested
cease and desist order;
(vii) Specify whether the employer desires an informal meeting with
a Wage and Hour Division official;
(viii) Be signed by the employer or its authorized representative;
and
(ix) Include the address at which the employer or its authorized
representative desires to receive further communications relating
thereto, if such address is different from the address of the U.S. agent
stated on the attestation.
(5) In the event the employer requests a meeting with a Wage and
Hour Division official, the Administrator shall provide the employer and
the complaining party, or their authorized representatives, an
opportunity for such a meeting to present their views regarding the
evidence and arguments submitted by the parties. This shall be an
informal meeting, not subject to any procedural rules. The meeting shall
be held within the 14 calendar days permitted for the employer's
response to the request for the cease and desist order, and shall be
held at a time and place set by the Wage and Hour Division official, who
shall notify the parties.
(6) After receipt of the employer's timely response and after any
informal meeting which may have been held with the parties, the
Administrator shall promptly issue a written determination, either
denying the request or issuing a cease and desist order. In making the
determination, the Administrator shall consider all the evidence
submitted, including any evidence from the same or a closely related
matter which the Administrator has incorporated into the record and
provided to the employer. If the Administrator determines that the
complaining party's position is supported by a preponderance of the
evidence submitted, the Administrator shall order that the employer
cease the activities specified in the determination, until the
completion of the Administrator's investigation and any subsequent
proceedings
pursuant to Sec. 655.625 of this part, unless the prohibition is lifted
by subsequent order of the Administrator because it is later determined
that the employer's position was correct. While the cease and desist
order is in effect, ETA shall suspend the subject attestation, either in
whole or in part, and shall not accept any subsequent attestation from
the employer for the activity(ies) and U.S. port or location in the
State of Alaska at issue.
(7) The Administrator's cease and desist order shall be served on
the employer at the address of its designated U.S. based representative
or at the address specified in the employer's response, by facsimile
transmission, personal service, or certified mail.
(b) If the Administrator determines that reasonable cause exists to
conduct an investigation with respect to a complaint that a non-
attesting employer is not entitled to the automated vessel exception to
the requirement for the filing of an attestation, a complaining party
may request that the Administrator enter a cease and desist order
against the employer against whom the complaint is lodged.
(1) The request for a cease and desist order may be filed along with
the complaint, or may be filed subsequently. The request, including all
accompanying documents, shall be filed in duplicate with the same Wage
and Hour Division office that received the complaint.
(2) No particular form is prescribed for a request for a cease and
desist order pursuant to this paragraph. However, any such request
shall:
(i) Be dated;
(ii) Be typewritten or legibly written;
(iii) Specify the circumstances which allegedly require that the
employer be denied the use of the automated vessel exception;
(iv) Be accompanied by evidence to substantiate the allegation(s);
(v) Be signed by the complaining party making the request or by the
authorized representative of such party; and
(vi) Include the address at which such complaining party or
authorized representative desires to receive further communications
relating thereto.
(3) Upon receipt of a request for a cease and desist order, the
Administrator shall notify the employer of the request. The
Administrator's notice shall:
(i) Inform the employer that it may respond to the request and meet
with a Wage and Hour Division official within 14 calendar days of the
date of the notice;
(ii) Be served upon the employer by facsimile transmission, in
person, or by certified or regular mail, at the employer's last known
address; and
(iii) Be accompanied by copies of the complaint, the request for a
cease and desist order, the evidence submitted by the complainant, and
any evidence from other investigation(s) of the same or a closely
related matter which the Administrator may incorporate into the record.
(Any such evidence from other investigation(s) shall also be made
available for examination by the complaining party at the Wage and Hour
Division office which issued the notice.)
(4) No particular form is prescribed for the employer's response to
the complaining party's request for a cease and desist order under this
paragraph (b). However, any such response shall:
(i) Be dated;
(ii) Be submitted by facsimile transmission, in person, by certified
or regular mail, or by courier service to the Wage and Hour Division
office which issued the notice of the request;
(iii) Be received by the appropriate Wage and Hour Division office
no later than 14 calendar days from the date of the notice of the
request;
(iv) Be typewritten or legibly written;
(v) Explain, in any detail desired by the employer, the employer's
grounds or reasons as to why the Administrator should deny the requested
cease and desist order;
(vi) Be accompanied by evidence to substantiate the employer's
grounds or reasons as to why the Administrator should deny the requested
cease and desist order;
(vii) Specify whether the employer desires an informal meeting with
a Wage and Hour Division official;
(viii) Be signed by the employer or its authorized representative;
and
(ix) Include the address at which the employer or its authorized
representative desires to receive further communications relating
thereto.
(5) In the event the employer requests a meeting with a Wage and
Hour Division official, the Administrator shall provide the employer and
the complaining party, or their authorized representatives, an
opportunity for such a meeting to present their views regarding the
evidence and arguments submitted by the parties. This shall be an
informal meeting, not subject to any procedural rules. The meeting shall
be held within the 14 calendar days permitted for the employer's
response to the request for the cease and desist order, and shall be
held at a time and place set by the Wage and Hour Division official, who
shall notify the parties.
(6) After receipt of the employer's timely response and after any
informal meeting which may have been held with the parties, the
Administrator shall promptly issue a written determination, either
denying the request or issuing a cease and desist order. If the
Administrator determines that the complaining party's position is
supported by a preponderance of the evidence submitted, the
Administrator shall order that the employer cease the use of alien
crewmembers to perform the longshore activity(ies) specified in the
order. In making the determination, the Administrator shall consider all
the evidence submitted, including any evidence from the same or a
closely related matter which the Administrator has incorporated into the
record and provided to the employer. The order shall remain in effect
until the completion of the investigation and any subsequent hearing
proceedings pursuant to Sec. 655.625 of this part, unless the employer
files and maintains on file with ETA an attestation pursuant to
Sec. 655.520 of this part or unless the prohibition is lifted by
subsequent order of the Administrator because it is later determined
that the employer's position was correct.
(7) The Administrator's cease and desist order shall be served on
the employer or its designated representative by facsimile transmission,
personal service, or by certified mail at the address specified in the
employer's response or, if no such address was specified, at the
employer's last known address.
