(a) The Administrator shall promptly notify the Attorney General and
ETA of the entry of a cease and desist order pursuant to Sec. 655.615 of
this part. The order shall remain in effect until the completion of the
Administrator's investigation and any subsequent proceedings pursuant to
Sec. 655.630 of this
part, unless the Administrator notifies the Attorney General and ETA of
the entry of a subsequent order lifting the prohibition.
(1) The Attorney General, upon receipt of notification from the
Administrator that a cease and desist order has been entered against an
employer:
(i) Shall not permit the vessels owned or chartered by the attesting
employer to use alien crewmembers to perform the longshore activity(ies)
at the port or location in the State of Alaska specified in the cease
and desist order; and
(ii) Shall, in the case of an employer seeking to utilize the
automated vessel exception, require that such employer not use alien
crewmembers to perform the longshore activity(ies) at the port or
location in the State of Alaska specified in the cease and desist order,
without having on file with ETA an attestation pursuant to Sec. 655.520
of this part.
(2) ETA, upon receipt of the Administrator's notice shall, in the
case of an attesting employer, suspend the employer's attestation,
either in whole or in part, for the activity(ies) and port or location
in the State of Alaska specified in the cease and desist order.
(b) The Administrator shall notify the Attorney General and ETA of
the final determination of a violation by an attesting employer or of
the ineligibility of an employer for the automated vessel exception,
upon the earliest of the following events:
(1) Where the Administrator determines that there is a basis for a
finding of violation by an attesting employer or a finding of
nonapplicability of the automated vessel exception, and no timely
request for hearing is made pursuant to Sec. 655.630 of this part;
(2) Where, after a hearing, the administrative law judge issues a
decision and order finding a violation by an attesting employer or
finding inapplicable the automated vessel exception, and no timely
petition for review to the Secretary is made pursuant to Sec. 655.655 of
this part; or
(3) Where a petition for review is taken from an administrative law
judge's decision finding a violation or finding inapplicable the
automated vessel exception, and the Secretary either declines within
thirty days to entertain the appeal, pursuant to Sec. 655.655(c) of this
part, or the Secretary affirms the administrative law judge's
determination; or
(4) Where the administrative law judge finds that there was no
violation by an attesting employer or that the automated vessel
exception does apply, and the Secretary, upon review, issues a decision
pursuant to Sec. 655.655 of this part, holding that a violation was
committed by an attesting employer or holding that the automated vessel
exception does not apply.
(c) The Attorney General, upon receipt of notification from the
Administrator pursuant to paragraph (b) of this section:
(1) Shall not permit the vessels owned or chartered by the attesting
employer to enter any port of the U.S. for a period of up to one year;
(2) Shall, in the case of an employer determined to be ineligible
for the automated vessel exception, thereafter require that such
employer not use alien crewmembers(s) to perform the longshore
activity(ies) at the specified port or location in the State of Alaska
without having on file with ETA an attestation pursuant to Sec. 655.520
of this part; and
(3) Shall, in the event that the Administrator's notice constitutes
a conclusive determination (pursuant to Sec. 655.670) that the
prevailing practice at a particular U.S. port does not permit the use of
nonimmigrant alien crewmembers for particular longshore activity(ies),
thereafter permit no employer to use alien crewmembers for the
particular longshore activity(ies) at that port.
(d) ETA, upon receipt of the Administrator's notice pursuant to
paragraph (b) of this section:
(1) Shall, in the case of an attesting employer, suspend the
employer's attestation, either in whole or in part, for the port or
location at issue and for any other U.S. port, and shall not accept for
filing any attestation submitted by the employer for a period of 12
months or for a shorter period if such is specified for that employer by
the Attorney General; and
(2) Shall, if the Administrator's notice constitutes a conclusive
determination (pursuant to Sec. 655.670) that
the prevailing practice at a particular U.S. port does not permit the
use of alien crewmembers for the longshore activity(ies), thereafter
accept no attestation under the prevailing practice exception on Form
ETA 9033 from any employer for the performance of the activity(ies) at
that port, and shall invalidate any current attestation under the
prevailing practice exception on Form ETA 9033 for any employer for the
performance of the activity(ies) at that port.
