Attestations by Employers Using Alien Crewmembers for Longshore Activities in U.S. Ports

SUMMARY: The Employment and Training Administration (ETA) and the

Employment Standards Administration (ESA) of the Department of Labor

(DOL or Department) are promulgating regulations to implement

amendments to existing regulations governing the filing and enforcement

of attestations by employers seeking to use alien crewmembers to

perform longshore work in the U.S. The amendments relate to employers'

use of alien crewmembers to perform longshore work at locations in the

State of Alaska. Under the Immigration and Nationality Act employers,

in certain circumstances, are required to submit these attestations to

DOL in order to be allowed by the Immigration and Naturalization

Service (INS) to use alien crewmembers to perform specified longshore

activities at locations in the State of Alaska. The attestation process

is administered by ETA, while complaints and investigations regarding

the attestations are handled by ESA.

DATES: Effective Date: The interim final rule promulgated in this

document is effective on February 21, 1995.

Comments: Written comments on the interim final rule are invited

from interested parties. Comments shall be submitted by March 20, 1995.

ADDRESSES: Submit comments to: Doug Ross, Assistant Secretary,

Employment and Training Administration, Department of Labor, Room N-

4456, 200 Constitution Avenue NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: On 20 CFR part 655, subpart F, and 29

CFR part 506, subpart F, contact Flora T. Richardson, Chief, Division

of Foreign Labor Certifications, U.S. Employment Service, Employment

and Training Administration, Department of Labor, Room N-4456, 200

Constitution Avenue NW., Washington, DC 20210. Telephone: (202) 219-

5263 (this is not a toll-free number).

On 20 CFR part 655, subpart G, and 29 CFR part 506, subpart G,

contact Solomon Sugarman, Chief, Farm Labor Programs, Wage and Hour

Division, Employment Standards Administration, Department of Labor,

Room S-3502, 200 Constitution Avenue NW., Washington, DC 20210.

Telephone: (202) 219-7605 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

The information collection requirements of the Form ETA 9033-A

under the Alaska exception and contained in this rule have been

submitted to the Office of Management and Budget (OMB) for clearance

under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and

have been assigned OMB Control No. 1205-0352. The information

collection requirements of the Form ETA 9033 under the prevailing

practice exception, assigned OMB Control No. 1205-0309, remain

unchanged by this rulemaking. The Form ETA 9033 was published in the

Federal Register with the final rule to implement the prevailing

practice exception on September 8, 1992 (57 FR 40966).

The Employment and Training Administration estimates that employers

will be submitting up to 350 attestations per year under the Alaska

exception. The public reporting burden for this collection of

information is estimated to average 3 hours per response, including the

time for reviewing instructions, searching existing information/data

sources, gathering and maintaining the information/data needed, and

completing and reviewing the attestation. It is likely that the burden

will be considerably less in the second and subsequent years in which

an employer submits an attestation.

Written comments on the collection of information requirements

should be sent to the Office of Information and Regulatory Affairs,

Office of Management and Budget, Attention: Desk Officer for Employment

and Training Administration, Washington, DC 20503.

II. Background

The Coast Guard Authorization Act of 1993, Pub. L. 103-206, 107

Stat. 2419 (Coast Guard Act), was enacted on December 20, 1993. Among

other things, the Coast Guard Act amended section 258 of the

Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.) which

places limitations on the performance of longshore work by alien

crewmembers in U.S. ports.

The loading and unloading of vessels had traditionally been

performed by U.S. longshore workers. However, until passage of the

Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649, 104 Stat. 4978,

(November 29, 1990), alien crewmembers had also been allowed by

Immigration and Naturalization Service (INS) regulation to do this kind

of work in U.S. ports, because longshore work was considered to be

within the scope of permitted employment for alien crewmembers. The

IMMACT 90 limited this practice in order to provide greater protection

to U.S. longshore workers.

Prior to the Coast Guard Act's enactment, section 258 of the INA

prohibited alien crewmembers admitted with D-visas from performing

longshore work except in four specific instances: (a) Where the

vessel's country of registration does not prohibit U.S. crewmembers

from performing longshore work in that country's ports and nationals of

a country which does not prohibit U.S. crewmembers from performing

longshore work in that country's ports hold a majority of the ownership

interest in the vessel; (b) where there is in effect in a local port

one or more collective bargaining agreement(s), each covering at least

30 percent of the longshore workers at a particular port and each

permitting the activity to be performed by alien crewmembers; (c) where

there is no collective bargaining agreement covering at least 30

percent of the longshore workers and an attestation has been filed with

the Department which states that the use of alien crewmembers to

perform longshore work is permitted under the prevailing practice of

the port, that the use of alien crewmembers is not during a strike or

lockout, that such use is not intended or designed to influence the

election of a collective bargaining representative, and that notice has

been provided to longshore workers at the port; and (d) where the

activity is performed with the use of automated self-unloading conveyor

belts or vacuum-actuated systems; provided that, the Secretary of Labor

(Secretary) has not found that an attestation is required because it

was not the prevailing practice to utilize alien crewmembers to perform

the activity or because the activity was performed during a strike or

lockout or in order to influence the election of a collective

bargaining representative. For this purpose, the term ``longshore

work''

[[Page 3951]]

does not include the loading or unloading of hazardous cargo, as

determined by the Secretary of Transportation, for safety and

environmental protection and no attestations were or are necessary for

the loading and unloading of such cargo.

The Department published final regulations in the Federal Register

on September 8, 1992, (57 FR 40966) to implement the prevailing

practice exception under IMMACT 90. The fishing industry and the

carriers worked together to comply with the law by filing the necessary

attestations to qualify under the prevailing practice exception. The

International Longshore and Warehousemen's Union responded to protect

the jurisdiction of U.S. longshore workers by filing complaints

pursuant to the attestations and seeking cease and desist orders to

halt the performance of longshore work by the carrier's alien

crewmembers.

The basic problem was that the prevailing practice exception was

apparently designed for established port areas. A lack of flexibility

in the remote areas of Alaska where the longshore work needed to be

performed, in some cases, prevented carriers from complying with

Departmental regulations. As a result, even where there were no U.S.

longshore workers available for the particular employment, employers in

some of these remote areas were prohibited from performing the

necessary longshore work, resulting in potential adverse impacts on the

Alaskan fishing industry including the loss of American jobs. In order

to remedy the situation, Congress consulted with representatives of the

longshoremen's unions and the carriers and enacted special provisions

recognizing the unique character of Alaskan ports.

The Coast Guard Act amended the INA by establishing a new Alaska

exception to the general prohibition on the performance of longshore

work by alien crewmembers in U.S. ports. The Alaska exception provides

that the prohibition does not apply where the longshore work is to be

performed at a particular location in the State of Alaska and an

attestation with accompanying documentation has been filed by the

employer with the Department of Labor. The INA provides, however, that

longshore work consisting of the use of an automated self-unloading

conveyor belt or vacuum-actuated system on a vessel shall continue to

be governed by section 258(c) of the INA (8 U.S.C. 1288(c)), even at

locations in the State of Alaska. If, however, it is determined that an

attestation is required for longshore work at locations in the State of

Alaska consisting of the use of automated equipment, i.e., because the

Administrator has determined, pursuant to a complaint, that it is not

the prevailing practice to use alien crewmembers to perform the

longshore activity(ies) through the use of the automated equipment, or

was during a strike or lockout or intended to influence an election of

a bargaining representative for workers in the local port, or if the

Administrator issues a cease and desist order against use of the

automated equipment without such attestation, the required attestation

shall be filed by the employer under the Alaska exception and not under

the prevailing practice exception. The amended INA provides that the

prevailing practice exception no longer applies in case of longshore

work to be performed at a particular location in the State of Alaska.

As a result, U.S. ports in the State of Alaska which were previously

listed in Appendix A, ``U.S. Seaports,'' have been removed from the

Appendix in this interim final rule.

The Alaska exception is intended to provide a preference for hiring

United States longshoremen over the employer's alien crewmembers. The

employer must attest that, before using alien crewmen to perform the

activity specified in the attestation, the employer will make a bona

fide request for and employ United States longshore workers who are

qualified and available in sufficient numbers from contract stevedoring

companies and private dock operators. The employer must also provide

notice of filing the attestation to such contract stevedoring companies

and private dock operators, and to labor organizations recognized as

exclusive bargaining representatives of United States longshore

workers. Finally, the employer must attest that the use of alien

crewmembers to perform longshore work is not intended or designed to

influence the election of a bargaining representative for workers in

the State of Alaska.

The Coast Guard Act provides that the Secretary of Labor shall

prescribe such regulations as may be necessary to carry out the

amendments to the INA. The INA further provides that attestations

previously filed pursuant to the prevailing practice exception at

section 258(c) of the INA (8 U.S.C. 1288(c)) would not expire at the

expiration of their respective validity periods but would remain valid

until 60 days after the date of issuance of final regulations by the

Secretary. Absent a final rule for attestations under this program,

employers are precluded from using alien crewmembers for longshore

activity at a particular location in the State of Alaska unless an

employer had a valid attestation for the location on file with ETA on

the date of the Act's enactment. Thus, even where there are no

qualified United States longshore workers available at a particular

location in the State of Alaska, such an employer is prohibited from

utilizing alien crewmembers to perform the necessary longshore work.

This program affects a limited class of individuals and entities in

Alaska. The Department consulted with representatives of all relevant

parties in the development of this interim final rule and, for good

cause, has determined that issuance of a proposed rule is unnecessary.

5 U.S.C. 553(b)(B).

Further, there is ongoing longshore work being performed off the

coast of Alaska in connection with the fishing industry. Since delay in

the issuance of an interim final rule precludes employers from filing

attestations in Alaska in order to use the ``Alaska exception'', such

employers may be encouraged by economic exigencies to utilize foreign

crewmembers in longshore work illegally or to reflag their vessels to

qualify for the reciprocity exception for vessels under the flags of

countries which permit U.S. crewmembers to perform longshore work.

Either of these actions by shippers would diminish employment

opportunities for Alaskan stevedores, contrary to the purposes of the

Act. Indeed, DOL has received information that further delay in

implementing the Alaska exception could adversely impact the employment

opportunities for Alaskan workers seeking longshore work. The

Department, for good cause, has determined that this potential harm

makes it impracticable and contrary to the public interest to delay

implementation by publishing the rule as a proposed rule. 5 U.S.C.

553(b)(B).

Nevertheless, the Department is very interested in receiving

comments on the interim final rule. These comments will be considered

in the development of a final rule.

III. Attestation Process and Requirements

The regulations for the attestation program for employers using

alien crewmembers for longshore work in the United States are published

at 20 CFR part 655, subparts F and G, and 29 CFR part 506, subparts F

and G, 57 FR 40966 (September 8, 1992).

A. When and Where to File

The regulations require that, to be acceptable, any attestation

under the Alaska exception must be filed with ETA at least 30 days

prior to the first

[[Page 3952]]

performance of longshore activity by alien crewmembers, or anytime up

to 24 hours before the first performance of the activity if the delay

could not have been reasonably anticipated. An attestation must be

filed only once per year for locations at which alien crewmembers will

be used. Therefore, the 30-day filing requirement applies only to the

first performance of longshore work after the attestation is filed.

Subsequent arrivals to the same location in the State of Alaska in the

same year do not require that an additional attestation be filed.

Under the prevailing practice exception, the regulations require

that a separate attestation be filed for each port at which the

employer intends to use alien crewmembers to perform longshore work.

The Department has determined that, under the Alaska exception, it is

appropriate to accept attestations which contain multiple locations. An

attestation must be filed by each individual employer but may apply to

multiple vessels and multiple locations within the State of Alaska. For

other States, the prevailing practice exception is port-specific and

the employer is required to attest that there is no collective

bargaining agreement in the port covering at least 30 percent of the

longshore workers, and that it is the prevailing practice in the port

for alien crewmembers to perform longshore work. There is no such port-

specific or location-specific attestation element or other provision

under the Alaska exception.

The Department requires that crewmember attestations for locations

in the State of Alaska be submitted to and accepted by the Employment

and Training Administration (ETA) regional office in Seattle,

Washington. The address of the Seattle regional office is listed in the

instructions for completing the Form ETA 9033-A.

ETA shall make available for public examination in Washington, DC,

a list of employers which have filed attestations, and for each such

employer, a copy of the employer's attestation and accompanying

documentation in a timely manner after the acceptance of the

attestation.

B. Acceptance for Filing

In accepting an attestation for filing, the regulations require

that the application be filed with ETA at least 30 days before the

first performance of the longshore activity (or anytime up to 24 hours

before the first performance of the activity, upon a showing that the

employer could not have reasonably anticipated the need to file an

attestation for that location at that time). The term ``could not have

reasonably anticipated'' is intended to be a broader and more flexible

standard than under the prevailing practice exception, which permits

late filing only in the event of an ``unanticipated emergency.''

Depending on the particular circumstances, delays occasioned by adverse

weather conditions, changes in commercial requirements, changes in fish

migration patterns, or other unforeseen circumstances may be sufficient

to file less than 30 days in advance.

The regulations provide that the Department review an attestation

only to ensure that it is completed properly, that it is accompanied by

the required documentation specified in the regulations, and that the

documentation is not, on its face, inconsistent with the attestation.

Level of Federal Review of Attestations

The Department has determined that the general approach to its

review of employer attestations under the prevailing practice exception

shall apply to attestations filed under the Alaska exception. The

Department will review an attestation to ensure that it has been filed

at least 30 days prior to the first performance of the longshore

activity (or anytime up to 24 hours before the first performance of the

activity, upon a showing that the employer could not have reasonably

anticipated the need to file an attestation for that location at that

time), that it is completed properly, that it has the appropriate

accompanying documentation, and that the documentation is not, on its

face, inconsistent with the attestation. In addition, the Department

will review attestations to determine the following: (1) Whether the

Administrator, Wage and Hour Division, DOL, has advised ETA that it has

issued a cease and desist order currently in effect that would affect

the attesting employer and particular location; (2) whether the

Administrator has advised ETA of a determination that an employer has

misrepresented or failed to comply with an attestation previously

submitted and accepted for filing, requiring the Attorney General to

bar the employer from entry to any U.S. port for up to one year; and

(3) whether the Administrator has advised ETA that the employer has

failed to comply with any penalty or remedy assessed.

Appeals Process

The regulations do not include an administrative appeal process for

attestations during the filing phase under the Alaska exception. When

an attestation is returned because it is untimely, improperly

completed, or lacking proper documentation, an employer may resubmit

another attestation to the Department. Attestations which have been

accepted by ETA may be objected to by an aggrieved party through the

complaint process in subpart G, and procedures for investigation,

hearing, and appeal are provided therein. The Department believes that

this approach is consistent with the statute's intent for a streamlined

attestation filing process and a complaint-driven enforcement system

for the statute's requirements.

C. Attestation Elements

Bona-fide Request for United States Longshore Workers

An employer or its agent filing an attestation under the Alaska

exception must attest that it will make a bona fide request for

dispatch of United States longshore workers who, by industry standards

in the State of Alaska, including safety considerations, are qualified

and available in sufficient numbers to perform the longshore activity

at the particular time and location. Such requests must be directed to

contract stevedoring companies and operators of private docks at which

the employer intends to use longshore workers. Wherever two or more

contract stevedoring companies have signed a joint collective

bargaining agreement with a single qualified labor organization, the

employer need request longshore workers from only one of such contract

stevedoring companies. Qualified labor organizations are those which

have been recognized as exclusive bargaining representatives of United

States longshore workers within the meaning of the National Labor

Relations Act (29 U.S.C. 141 et seq.) and which make available or

intend to make available longshore workers to the particular location

where the longshore work is to be performed. An employer is not

required to request dispatch of United States longshore workers from

contract stevedoring companies or private dock operators which do not

meet the requirements of section 32 of the Longshore and Harbor

Workers' Compensation Act (33 U.S.C. 932) or, in the case of contract

stevedoring companies, which are not licensed to do business in the

State of Alaska. Evidence of coverage is a copy of the DOL Office of

Workers' Compensation Programs (OWCP) Certificate of Compliance, which

is maintained by the contract stevedoring company or private dock

operator. Further, a request for dispatch from a private dock operator

[[Page 3953]]

need only be made for longshore work to be performed at that dock.

Employers are not required to request dispatch of United States

longshore workers from any party which has notified the employer in

writing that it does not intend to dispatch workers to the location at

which longshore work is to be performed. If a party that has provided

such notice subsequently informs the employer in writing that it is

prepared to provide workers, the employer's obligations to that party

to request dispatch of, and employ qualified United States longshore

workers made available in sufficient numbers, recommence 60 days from

the employer's receipt of the notice.

Employment of United States Longshore Workers

An employer or its agent must attest that it will employ all United

States longshore workers dispatched in response to a request made under

the first attestation element who are qualified and available in

sufficient numbers and who are needed to perform the longshore activity

at the particular time and location attested to.

This attestation element also specifies that employers will not be

required to hire less than full work units of United States longshore

workers nor to provide overnight accommodations for the workers. The

regulations provide that ``full work unit'' means the full complement

of longshore workers needed to perform the longshore activity, as

determined by industry standards in the State of Alaska, including

safety considerations. Where the makeup of a full work unit is covered

by one or more collective bargaining agreements in effect at the time

and location where longshore work is to be performed, the provisions of

such agreements shall be deemed to be in conformance with industry

standards in the State of Alaska. This element also states the

conditions under which employers will be required to provide

transportation from the point of embarkation to the vessel on which

longshore work is to be performed. Specifically, there is a thirty-

minute travel time limit and a five-mile travel distance limit except

in Klawock/Craig and Wide Bay, Alaska, where, due to the remoteness of

these areas, the travel limits are extended to forty-five minutes and

seven and one-half miles, respectively. Further, an employer is not

required to provide transportation, even if the vessel is within the

specified time and distance limitations from the point of embarkation,

unless surface transportation is available and such transportation may

be safely accomplished. If a vessel where longshore work is to be

performed is beyond the specified time and distance limitations from

the point of embarkation, the employer is still obligated to hire any

qualified U.S. longshore worker who is capable of getting to the vessel

where the longshore work is to be performed at his or her own expense,

even though the specified time and/or distance limitations are

exceeded, but is not required to provide such transportation nor

reimburse the worker for expenses incurred in getting to and from the

vessel.

Election

An employer filing an attestation under the Alaska exception must

attest that the use of alien crewmembers to perform longshore

activities will not be intended or designed to influence an election of

a bargaining representative for workers in the State of Alaska.

Notice

Lastly, an employer of alien crewmembers must attest that at the

time of filing the attestation, notice of the filing has been provided

to: (1) Labor organizations which have been recognized as exclusive

bargaining representatives of United States longshore workers within

the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq.)

and which make available or intend to make available workers to the

locations where the employer is attesting that the longshore work is to

be performed; (2) contract stevedoring companies which are licensed to

do business in the State of Alaska, meet the requirements of section 32

of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932),

and which employ or intend to employ United States longshore workers at

those locations; and (3) operators of private docks at which the

employer intends to use longshore workers. The operators to whom

provision of notice is required shall also meet the requirements of

section 32 of the Longshore and Harbor Workers' Compensation Act (33

U.S.C. 932).

The required notices shall include a copy of the Form ETA 9033-A,

shall state that the attestation with accompanying documentation has

been filed and is available at the National office of ETA for review by

interested parties, and shall explain where complaints can be filed

with respect to employer attestations. Further, in the required notice,

the employer shall request a copy of the Certificate of Compliance

issued by the district director of the Office of Workers' Compensation

Programs under section 37 of the Longshore and Harbor Workers'

Compensation Act (33 U.S.C. 932) from contract stevedoring companies

and private dock operators. The employer's obligations to request

dispatch of and employ qualified United States longshore workers from

any party shall commence upon receipt of the Certificate of Compliance.

Finally, the Department periodically shall publish in the Federal

Register a list of employers who have submitted attestations under the

Alaska exception.

D. Automated Vessel Exception

The INA provides that longshore work consisting of the use of an

automated self-unloading conveyor belt or vacuum- actuated system on a

vessel shall continue to be governed by the prevailing practice

exception and Departmental regulations thereunder at 20 CFR 655.520 and

29 CFR 506.520. If, however, it is determined that an attestation is

required for longshore work consisting of the use of automated

equipment, i.e., because the Administrator has determined, pursuant to

a complaint, that it is not the prevailing practice to use alien

crewmembers to perform the longshore activity(ies) through the use of

the automated equipment, or was during a strike or lockout or intended

to influence an election of a bargaining representative for workers in

the local port, or if the Administrator issues a cease and desist order

against use of the automated equipment without such attestation, the

required attestation shall be filed by the employer under the Alaska

exception and not under the prevailing practice exception. The amended

INA provides that the prevailing practice exception no longer applies

in the case of longshore work to be performed at a particular location

in the State of Alaska.

IV. Complaints, Investigations, and Dispositions

The INA provides that the Secretary shall establish complaint,

investigation, and hearing procedures and authorizes the Secretary to

issue cease and desist orders against employers. The Secretary's

enforcement responsibilities are assigned to the Administrator, Wage

and Hour Division, of the Department's Employment Standards

Administration (ESA).

A. Complaint, Investigation, and Hearing

The INA provides that the existing process for the receipt,

investigation, and disposition of complaints at section 258(c)(4) of

the INA shall apply to the use of alien crewmembers to perform

[[Page 3954]]

longshore work at locations in the State of Alaska. Therefore,

enforcement of attestations filed under the Alaska exception will be

conducted in accordance with regulations currently in place for

attestations filed under the prevailing practice exception.

Section 258(c)(4) of the INA requires that the Secretary establish

a system to conduct investigations where a complaint presents there is

reasonable cause to believe that an attesting employer failed to meet a

condition attested to or misrepresented a material fact in its

attestation, or that a non-attesting employer claiming the automated

vessel exception was not qualified for the exception because the

performance of the associated longshore activity does not prevail in

the port. The regulations provide that the Wage and Hour Administrator

may conduct investigations of potential violations of the law only

pursuant to a complaint. The investigative process is to be completed

and a determination issued in a 180-day period, or a longer period for

good cause shown. Any aggrieved person may file a complaint.

The regulations provide that, in investigating an attesting

employer, the Administrator shall consider the employer's statutory

burden to present and retain facts and evidence to show the matters

attested to. The regulations also require that the employer cooperate

in the investigation and take no retaliatory action against persons who

file complaints, assist in the investigation, or participate in the

administrative proceedings.

B. Administrative Law Judge Hearing and Discretionary Review by the

Secretary

Section 258(c)(4)(D) of the INA requires that the Secretary provide

interested parties an opportunity for a hearing within 60 days of the

date of the investigative determination. Because of this compressed

timeframe, the regulations require that a request for hearing be filed

directly with the Chief Administrative Law Judge no later than 15 days

from the date of the Administrator's determination. Further, the

regulations incorporate the statutory imposition of the burden of proof

on the attesting employer to establish the truth of the attestation

elements.

An opportunity for discretionary review by the Secretary is

afforded by the regulations, with short deadlines in accordance with

the statutory intent for expedited dispositions. Any interested party

may request such review, and the Secretary shall determine what

matters, if any, will be reviewed.

C. Cease and Desist Order

Section 258(c)(4)(C) of the INA authorizes the Secretary, at the

request of a complainant, to issue a cease and desist order against an

attesting employer or against a non-attesting employer claiming the

automated vessel exception. The complainant's request may be made when

the Secretary has determined there is reasonable cause to conduct an

investigation. The INA specifies that, if a complainant requests such

an order, the employer will be notified and given 14 days within which

to respond. The Secretary is then required to determine whether the

preponderance of the evidence submitted supports the complainant's

position and, if it does, to order that the employer cease and desist

the activity(ies) at issue. The order remains in effect throughout the

hearing process for the attesting employer; for the non-attesting

employer claiming the automated vessel exception, the order remains in

effect throughout the hearing process unless ETA accepts for filing an

attestation from that employer for the activity and location which the

cease and desist order affects.

The regulations provide that the complainant who desires a cease

and desist order must submit two complete copies of the request and the

evidence to substantiate the allegations (the second copy of the

request will be provided to the employer). The Administrator's notice

to the employer shall include copies of the complaint, the cease and

desist order request and supporting evidence, and any other pertinent

evidence from an investigation of the same or a closely related matter

which the Administrator incorporates into the record. The employer,

thus, will be fully informed as to the allegations and evidence. The

Administrator's notice also shall specify that, during the 14-day

response period specified by the INA, the Administrator will provide,

at the employer's request, an opportunity for a meeting with a Wage and

Hour Division official to give the employer's views on the evidence and

issues. This meeting shall be informal, shall not be subject to any

procedural rules, and shall include the complainant if the complainant

so desires.

The regulations specify that the cease and desist order will remain

in effect unless and until the Administrator withdraws the order on the

ground that the employer's position is determined to have been correct

or a final determination is made which results in resolution of the

matter under investigation, or--in the case of the automated vessel

exception--an attestation relating to the longshore activity is

accepted for filing by ETA.

A complainant's request for a cease and desist order under the

Alaska exception shall specify the location(s) at issue. The

regulations provide that the Secretary is required to determine whether

the preponderance of the evidence submitted supports the complainant's

position and, if it does, to order that the employer cease and desist

the activity(ies) at the location(s) at issue. Since an attestation

under the Alaska exception may be valid for multiple locations, a cease

and desist order pertaining to a particular location or locations shall

not prejudice the validity of the attestation with respect to the

performance of longshore activities which are covered by the

attestation, but which are not at issue under the cease and desist

order.

D. Penalties

A violation of section 258 of the INA or the regulations thereunder

by an attesting employer may result in the imposition of administrative

remedy(ies), such as a civil money penalty not to exceed $5,000 per

alien crewmember illegally employed. Upon notice of the violation(s),

the Attorney General thereafter shall not permit the vessels owned or

chartered by the employer to enter any port of the U.S. during a period

of up to one year. Additionally, ETA will be notified and shall

thereafter not accept any attestation from the employer for any

activity(ies) at any U.S. port for one year (or for a shorter period,

if such period is specified by INS).

Upon the Department's final determination that an employer

improperly claimed the automated vessel exemption, the Attorney General

will be notified and shall thereafter require that, before using alien

crewmembers, the employer must have on file with ETA an attestation for

the activity(ies) and the port at issue. For locations in the State of

Alaska such an attestation shall be made under the Alaska exception on

Form ETA 9033-A. For other states, the attestation shall be made under

the prevailing practice exception on Form ETA 9033.

V. Enforcement Matters

A. Clarification of Judicial Review

To ensure that the regulation comports with recent supreme court

caselaw, Sec. ______.650 of the rule has been amended to provide that a

party may not seek judicial review of an administrative law judge's

decision until such party has exhausted all administrative remedies.

[[Page 3955]]

B. Debarment Timing (Notice to Attorney General)

The statute requires that the Secretary notify the Attorney General

(AG) of an employer's violation(s). Pursuant to Sec. ______.665(b) of

the Interim Final rule, the Administrator is required to notify the AG

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. ______.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; or

(3) 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 of this part, holding that a

violation was committed by an attesting employer or holding that the

automated vessel exception does not apply.

This regulatory construct creates a situation where the

Administrator notifies the AG of a violation upon a finding of a

violation or upon a finding that the automated vessel exception does

not apply by an ALJ, even though such finding subsequently may be

appealed to the Secretary and eventually overturned. An attesting

employer thus could be debarred after a finding of violation by an ALJ,

serve part or all of the debarment period, and subsequently be found by

the Secretary not to have committed a violation. Similarly, if the ALJ

finds that the employer is ineligible for the automated vessel

exception, the employer could be required not to use alien crewmembers

to perform longshore activities at the specified port without first

filing an attestation with ETA, and subsequently be found to be

eligible for the automated vessel exception by the Secretary.

To correct this anomaly, Sec. ______.665(b) has been amended to

require notification to the AG after a finding of a violation or a

finding of nonapplicability of the automated vessel exception by an ALJ

only under the following circumstances: (a) where there is no appeal

from the ALJ's finding to the Secretary; (b) where, upon appeal, the

Secretary declines to review the ALJ's finding; and (c) where, upon

review, the Secretary affirms the ALJ's finding.

VI. Summary

The Department welcomes comments on these and any other issues

addressed in the regulations and on any issues not addressed that

commenters believe need to be addressed.

Regulatory Impact and Administrative Procedure

E.O. 12866:

In accordance with Executive Order 12866, the Department of Labor

has determined that this is not a significant regulatory action as

defined in section 3(f) of the Order.

Regulatory Flexibility Act:

The Department of Labor has notified the Chief Counsel for

Advocacy, Small Business Administration, and made the certification

pursuant to the Regulatory Flexibility Act at 5 U.S.C. 605(b), that the

rule does not have a significant economic impact on a substantial

number of small entities.

Nevertheless, interested parties are requested to submit, as part

of their comments on this rule, information on the potential economic

impact of the rule.

Absent a final rule for attestations under this program, employers

are precluded from using alien crewmembers for longshore activity at a

particular location in the State of Alaska unless the employer had a

valid attestation for the location on file with ETA on the date of the

Coast Guard Act's enactment. This program affects a limited class of

individuals and entities in Alaska. The Department consulted with

representatives of all relevant parties in the development of this

interim final rule and, for good cause, has determined that issuance of

a proposed rule is unnecessary. 5 U.S.C. 553(b)(B).

Further, there is ongoing longshore work being performed off the

coast of Alaska in connection with the fishing industry. Since delay in

the issuance of an interim final rule precludes employers from filing

attestations in Alaska in order to use the ``Alaska exception'', such

employers may be encouraged by economic exigencies to utilize foreign

crewmembers in longshore work illegally or to reflag their vessels to

qualify for the reciprocity exception for vessels under the flags of

countries which permit U.S. crewmembers to perform longshore work.

Either of these actions by shippers would diminish employment

opportunities for Alaskan stevedores, contrary to the purposes of the

Act. Indeed, DOL has received information that further delay in

implementing the Alaska exception could adversely impact the employment

opportunities for Alaskan workers seeking longshore work. The

Department, for good cause, has determined that this potential harm

makes it impracticable and contrary to the public interest to delay

implementation by publishing the rule as a proposed rule. 5 U.S.C.

553(b)(B).

Nevertheless, the Department is very interested in receiving

comments on the interim final rule. These comments will be considered

in the development of a final rule.

Catalog of Federal Domestic Assistance Number

This program is not listed in the Catalog of Federal Domestic

Assistance.

List Of Subjects

20 CFR Part 655

Administrative practice and procedure, Agriculture, Aliens,

Crewmembers, Employment, Enforcement, Fashion Models, Forest and Forest

Products, Guam, Health professions, Immigration, Labor, Longshore work,

Migrant labor, Nurse, Penalties, Registered nurse, Reporting and

recordkeeping requirements, Specialty occupation, Students, Wages.

29 CFR Part 506

Administrative practice and procedures, Aliens, Crewmembers,

Employment, Enforcement, Immigration, Labor, Longshore work, Penalties,

Reporting and recordkeeping requirements.

Text of the Joint Interim Final Rule

For the reasons set forth in the common preamble, the text of the

joint interim final rule as adopted by ETA and the Wage and Hour

Division, ESA, and in this document appears below:

Subpart F--Attestations by Employers Using Alien Crewmembers for

Longshore Activities in U.S. Ports

General Provisions

Sec.

______.500 Purpose, procedure and applicability of subparts F and G

of this part.

______.501 Overview of responsibilities.

______.502 Definitions.

______.510 Employer attestations.

______.520 Special provisions regarding automated vessels.

Alaska Exception

______.530 Special provisions regarding the performance of

longshore activities at locations in the State of Alaska.

______.531 Who may submit attestations for locations in Alaska?

______.532 Where and when should attestations be submitted for

locations in Alaska?

[[Page 3956]]

______.533 What should be submitted for locations in Alaska?

______.534 The first attestation element for locations in Alaska:

Bona fide request for dispatch of United States longshore workers.

______.535 The second attestation element for locations in Alaska:

Employment of United States longshore workers.

______.536 The third attestation element for locations in Alaska:

No intention or design to influence bargaining representative

election.

______.537 The fourth attestation element for locations in Alaska:

Notice of filing.

______.538 Actions on attestations submitted for filing for

locations in Alaska.

______.539 Effective date and validity of filed attestations for

locations in Alaska.

______.540 Suspension or invalidation of filed attestations for

locations in Alaska.

______.541 Withdrawal of accepted attestations for locations in

Alaska.

Public Access

______.550 Public access.

Appendix A to Subpart F--U.S. Seaports

Subpart G--Enforcement of the Limitations Imposed on Employers Using

Alien Crewmembers for Longshore Activities in U.S. Ports

Sec.

______.600 Enforcement authority of Administrator, Wage and Hour

Division.

______.605 Complaints and investigative procedures.

______.610 Automated vessel exception to prohibition on utilization

of alien crewmember(s) to perform longshore activity(ies) at a U.S.

port.

______.615 Cease and desist order.

______.620 Civil money penalties and other remedies.

______.625 Written notice, service and Federal Register publication

of Administrator's determination.

______.630 Request for hearing.

______.635 Rules of practice for administrative law judge

proceedings.

______.640 Service and computation of time.

______.645 Administrative law judge proceedings.

______.650 Decision and order of administrative law judge.

______.655 Secretary's review of administrative law judge's

decision.

______.660 Administrative record.

______.665 Notice to the Attorney General and the Employment and

Training Administration.

______.670 Federal Register notice of determination of prevailing

practice.

______.675 Non-applicability of the Equal Access to Justice Act.

Subpart F--Attestations by Employers Using Alien Crewmembers for

Longshore Activities in U.S. Ports

General Provisions

Sec. ______.500 Purpose, procedure and applicability of subparts F and

G of this part.

(a) Purpose. (1) Section 258 of the Immigration and Nationality Act

(``Act'') prohibits nonimmigrant alien crewmembers admitted to the

United States on D-visas from performing longshore work at U.S. ports

except in five specific instances:

(i) Where the vessel's country of registration does not prohibit

U.S. crewmembers from performing longshore work in that country's ports

and nationals of a country (or countries) which does not prohibit U.S.

crewmembers from performing longshore work in that country's ports hold

a majority of the ownership interest in the vessel, as determined by

the Secretary of State (henceforth referred to as the ``reciprocity

exception'');

(ii) Where there is in effect in a local port one or more

collective bargaining agreement(s), each covering at least thirty

percent of the longshore workers, and each permitting the activity to

be performed under the terms of such agreement(s);

(iii) Where there is no collective bargaining agreement covering at

least thirty percent of the longshore workers at the particular port

and an attestation with accompanying documentation has been filed with

the Department of Labor attesting that, among other things, the use of

alien crewmembers to perform a particular activity of longshore work is

permitted under the prevailing practice of the particular port

(henceforth referred to as the ``prevailing practice exception'');

(iv) Where the longshore work is to be performed at a particular

location in the State of Alaska and an attestation with accompanying

documentation has been filed with the Department of Labor attesting

that, among other things, before using alien crewmembers to perform the

activity specified in the attestation, the employer will make a bona

fide request for and employ United States longshore workers who are

qualified and available in sufficient numbers from contract stevedoring

companies, labor organizations recognized as exclusive bargaining

representatives of United States longshore workers, and private dock

operators (henceforth referred to as the ``Alaska exception''); or

(v) Where the longshore work involves an automated self-unloading

conveyor belt or vacuum-actuated system on a vessel and the

Administrator has not previously determined that an attestation must be

filed pursuant to this part as a basis for performing those functions

(henceforth referred to as the ``automated vessel exception'').

(2) The term ``longshore work'' does not include the loading or

unloading of hazardous cargo, as determined by the Secretary of

Transportation, for safety and environmental protection. The Department

of Justice, through the Immigration and Naturalization Service (INS),

determines whether an employer may use alien crewmembers for longshore

work at U.S. ports. In those cases where an employer must file an

attestation in order to perform such work, the Department of Labor

shall be responsible for accepting the filing of such attestations.

Subpart F of this part sets forth the procedure for filing attestations

with the Department of Labor for employers proposing to use alien

crewmembers for longshore work at U.S. ports under the prevailing

practice exception, the Alaska exception, and where it has been

determined that an attestation is required under the automated vessel

exception listed in paragraph (a)(1)(iv) of this section. Subpart G of

this part sets forth complaint, investigation, and penalty provisions

with respect to such attestations.

(b) Procedure. (1) Under the prevailing practice exception in sec.

258(c) of the Act, and in those cases where it has been determined that

an attestation is required under the automated vessel exception for

longshore work to be performed at locations other than in the State of

Alaska, the procedure involves filing an attestation with the

Department of Labor attesting that:

(i) The use of alien crewmembers for a particular activity of

longshore work is the prevailing practice at the particular port;

(ii) The use of alien crewmembers is not during a strike or lockout

nor designed to influence the election of a collective bargaining

representative; and

(iii) Notice of the attestation has been provided to the bargaining

representative of longshore workers in the local port, or, where there

is none, notice has been provided to longshore workers employed at the

local port.

[[Page 3957]]

(2) Under the automated vessel exception in sec. 258(c) of the Act,

no attestation is required in cases where longshore activity consists

of the use of an automated self-unloading conveyor belt or vacuum-

actuated system on a vessel. The legislation creates a rebuttable

presumption that the use of alien crewmembers for the operation of such

automated systems is the prevailing practice. In order to overcome such

presumption, it must be shown by the preponderance of the evidence

submitted by any interested party, that the use of alien crewmembers

for such activity is not the prevailing practice at the particular

port, that it is during a strike or lockout, or that it is intended or

designed to influence an election of a bargaining representative for

workers in the local port.

(3) Under the Alaska exception in sec. 258(d) of the Act, and in

those cases where it has been determined that an attestation is

required under the automated vessel exception consisting of the use of

such equipment for longshore work to be performed in the State of

Alaska, the procedure involves filing an attestation with the

Department of Labor attesting that:

(i) The employer will make a bona fide request for United States

longshore workers who are qualified and available in sufficient numbers

to perform the activity at the particular time and location from the

parties to whom notice has been provided under paragraph (b)(3)(iv) (B)

and (C) of this section, except that:

(A) Wherever two or more contract stevedoring companies which meet

the requirements of section 32 of the Longshore and Harbor Workers'

Compensation Act (33 U.S.C. 932) have signed a joint collective

bargaining agreement with a single labor organization recognized as an

exclusive bargaining representative of United States longshore workers

within the meaning of the National Labor Relations Act (29 U.S.C. 141

et seq.), the employer may request longshore workers from only one such

contract stevedoring company, and

(B) A request for longshore workers to an operator of a private

dock may be made only for longshore work to be performed at that dock

and only if the operator meets the requirements of section 32 of the

Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932);

(ii) The employer will employ all United States longshore workers

made available in response to the request made pursuant to paragraph

(b)(3)(i) of this section who are qualified and available in sufficient

numbers and who are needed to perform the longshore activity at the

particular time and location attested to;

(iii) The use of alien crewmembers for such activity is not

intended or designed to influence and election of a bargaining

representative for workers in the State of Alaska; and

(iv) Notice of the attestation has been provided to:

(A) Labor organizations which have been recognized as exclusive

bargaining representatives of United States longshore workers within

the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq.)

and which make available or intend to make available workers to the

particular location where the longshore work is to be performed;

(B) Contract stevedoring companies which employ or intend to employ

United States longshore workers at that location; and

(C) Operators of private docks at which the employer will use

longshore workers.

(c) Applicability. Subparts F and G of this part apply to all

employers who seek to employ alien crewmembers for longshore work at

U.S. ports under the prevailing practice exception, to all employers

who seek to employ alien crewmembers for longshore work at locations in

the State of Alaska under the Alaska exception, to all employers

claiming the automated vessel exception, and to those cases where it

has been determined that an attestation is required under the automated

vessel exception.

Sec. ________.501 Overview of responsibilities.

This section provides a context for the attestation process, to

facilitate understanding by employers that may seek to employ alien

crewmembers for longshore work under the prevailing practice exception,

under the Alaska exception, and in those cases where an attestation is

necessary under the automated vessel exception.

(a) Department of Labor's responsibilities. The United States

Department of Labor (DOL) administers the attestation process. Within

DOL, the Employment and Training Administration (ETA) shall have

responsibility for setting up and operating the attestation process;

the Employment Standards Administration's Wage and Hour Division shall

be responsible for investigating and resolving any complaints filed

concerning such attestations.

(b) Employer attestation responsibilities. (1) Each employer

seeking to use alien crewmembers for longshore work at a local U.S.

port pursuant to the prevailing practice exception or where an

attestation is required under the automated vessel exception for

longshore work to be performed at locations other than in the State of

Alaska shall, as the first step, submit an attestation on Form ETA

9033, as described in Sec. ________.510 of this part, to ETA at the

address set forth at Sec. ________.510(b) of this part. If ETA accepts

the attestation for filing, pursuant to Sec. ________.510 of this part,

ETA shall return the cover form of the accepted attestation to the

employer, and, at the same time, shall provide notice of the filing to

the Immigration and Naturalization Service (INS) office having

jurisdiction over the port where longshore work will be performed.

(2) Each employer seeking to use alien crewmembers for longshore

work at a particular location in the State of Alaska pursuant to the

Alaska exception or where an attestation is required under the

automated vessel exception for longshore work to be performed at a

particular location in Alaska shall submit, as a first step, an

attestation on Form ETA 9033-A, as described in Sec. ________.533 of

this part, to ETA at the address of the Seattle regional office as set

forth at Sec. ________.532 of this part. The address appears in the

instructions to Form ETA 9033-A. ETA shall return the cover form of the

accepted attestation to the employer, and, at the same time, shall

provide notice of the filing to the INS office having jurisdiction over

the location where longshore work will be performed.

(c) Complaints. Complaints concerning misrepresentation in the

attestation, failure of the employer to carry out the terms of the

attestation, or complaints that an employer is required to file an

attestation under the automated vessel exception, may be filed with the

Wage and Hour Division, according to the procedures set forth in

subpart G of this part. Complaints of ``misrepresentation'' may include

assertions that an employer has attested to the use of alien

crewmembers only for a particular activity of longshore work and has

thereafter used such alien crewmembers for another activity of

longshore work. If the Division determines that the complaint presents

reasonable cause to warrant an investigation, the Division shall then

investigate, and, where appropriate, after an opportunity for a

hearing, assess sanctions and penalties. Subpart G of this part further

provides that interested parties may obtain an administrative law judge

hearing on the Division's determination after an investigation and may

seek the Secretary's review of the

[[Page 3958]]

administrative law judge's decision. Subpart G of this part also

provides that a complainant may request that the Wage and Hour

Administrator issue a cease and desist order in the case of either

alleged violation(s) of an attestation or longshore work by alien

crewmember(s) employed by an employer allegedly not qualified for the

claimed automated vessel exception. Upon the receipt of such a request,

the Division shall notify the employer, provide an opportunity for a

response and an informal meeting, and then rule on the request, which

shall be granted if the preponderance of the evidence submitted

supports the complainant's position.

Sec. ________.502 Definitions.

For the purposes of subparts F and G of this part:

Accepted for filing means that a properly completed attestation on

Form ETA 9033, including accompanying documentation for each of the

requirements in Sec. ________.510 (d) through (f) of this part, or a

properly completed attestation on Form ETA 9033-A, including

accompanying documentation for the requirement in Sec. ________.537 of

this part in the case of an attestation under the Alaska exception,

submitted by the employer or its designated agent or representative has

been received and filed by the Employment and Training Administration

of the Department of Labor (DOL). (Unacceptable attestations under the

prevailing practice exception are described at Sec. ________.510(g)(2)

of this part. Unacceptable attestations under the Alaska exception are

described at Sec. ________.538(b) of this part.)

Act and INA mean the Immigration and Nationality Act, as amended, 8

U.S.C. 1101 et seq.

Activity means any activity relating to loading cargo; unloading

cargo; operation of cargo-related equipment; or handling of mooring

lines on the dock when a vessel is made fast or let go.

Administrative law judge means an official appointed pursuant to 5

U.S.C. 3105.

Administrator means the Administrator of the Wage and Hour

Division, Employment Standards Administration, Department of Labor, or

such authorized representatives as may be designated to perform any of

the functions of the Administrator under subparts F and G of this part.

Attestation means documents submitted by an employer attesting to

and providing accompanying documentation to show that, under the

prevailing practice exception, the use of alien crewmembers for a

particular activity of longshore work at a particular U.S. port is the

prevailing practice, and is not during a strike or lockout nor intended

to influence an election of a bargaining representative for workers;

and that notice of the attestation has been provided to the bargaining

representative, or, where there is none, to the longshore workers at

the local port. Under the Alaska exception, such documents shall show

that, before using alien crewmen to perform longshore work, the

employer will make bona fide requests for dispatch of United States

longshore workers who are qualified and available in sufficient numbers

and that the employer will employ all such United States longshore

workers in response to such a request for dispatch; that the use of

alien crewmembers is not intended or designed to influence an election

of a bargaining representative for workers in the State of Alaska; and

that notice of the attestation has been provided to labor organizations

recognized as exclusive bargaining representatives of United States

longshore workers, contract stevedoring companies, and operators of

private docks at which the employer will use longshore workers.

Attesting employer means an employer who has filed an attestation.

Attorney General means the chief official of the U.S. Department of

Justice or the Attorney General's designee.

Automated vessel means a vessel equipped with an automated self-

unloading conveyor belt or vacuum-actuated system which is utilized for

loading or unloading cargo between the vessel and the dock.

Certifying Officer means a Department of Labor official who makes

determinations about whether or not to accept attestations:

(1) A regional Certifying Officer designated by a Regional

Administrator, Employment and Training Administration (RA) makes such

determinations in a regional office of the Department;

(2) A national Certifying Officer makes such determinations in the

national office of the USES.

Chief, Division of Foreign Labor Certifications, USES means the

chief official of the Division of Foreign Labor Certifications within

the United States Employment Service, Employment and Training

Administration, Department of Labor, or the designee of the Chief,

Division of Foreign Labor Certifications, USES.

Chief Administrative Law Judge means the chief official of the

Office of the Administrative Law Judges of the Department of Labor or

the Chief Administrative Law Judge's designee.

Contract stevedoring company means a stevedoring company which is

licensed to do business in the State of Alaska and which meets the

requirements of section 32 of the Longshore and Harbor Workers'

Compensation Act (33 U.S.C. 932).

Crewmember means any nonimmigrant alien admitted to the United

States to perform services under sec. 101(a)(15)(D)(i) of the Act (8

U.S.C. 1101(a)(15)(D)(i)).

Date of filing means the date an attestation is accepted for filing

by ETA.

Department and DOL mean the United States Department of Labor.

Director means the chief official of the United States Employment

Service (USES), Employment and Training Administration, Department of

Labor, or the Director's designee.

Division means the Wage and Hour Division of the Employment

Standards Administration, DOL.

Employer means a person, firm, corporation, or other association or

organization, which suffers or permits, or proposes to suffer or

permit, alien crewmembers to perform longshore work at a port within

the U.S. For purposes of Secs. ________.530 through ________.541, which

govern the performance of longshore activities by alien crewmembers

under the Alaska exception, ``employer'' includes any agent or

representative designated by the employer.

Employment and Training Administration (ETA) means the agency

within the Department of Labor (DOL) which includes the United States

Employment Service (USES).

Employment Standards Administration (ESA) means the agency within

the Department of Labor (DOL) which includes the Wage and Hour

Division.

Immigration and Naturalization Service (INS) means the component of

the Department of Justice which makes the determination under the Act

on whether an employer of alien crewmembers may use such crewmembers

for longshore work at a U.S. port.

Lockout means a labor dispute involving a work stoppage, wherein an

employer withholds work from its employees in order to gain a

concession from them.

Longshore work means any activity (except safety and environmental

protection work as described in sec. 258(b)(2) of the Act) relating to

the loading or unloading of cargo, the operation of cargo related

equipment (whether or not integral to the vessel),

[[Page 3959]]

or 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.

Longshore worker means a U.S. worker who performs longshore work.

Port means a geographic area, either on a seacoast, lake, river or

any other navigable body of water, which contains one or more publicly

or privately owned terminals, piers, docks, or maritime facilities,

which is commonly thought of as a port by other government maritime-

related agencies, such as the Maritime Administration. U.S. ports

include, but are not limited to, those listed in Appendix A to this

subpart.

Qualified and available in sufficient numbers means the full

complement of qualified longshore workers needed to perform the

longshore activity, as determined by industry standards in the State of

Alaska, including safety considerations.

Regional Administrator, Employment and Training Administration (RA)

means the chief official of the Employment and Training Administration

(ETA) in a Department of Labor (DOL) regional office.

Secretary means the Secretary of Labor or the Secretary's designee.

Strike means a labor dispute wherein employees engage in a

concerted stoppage of work (including stoppage by reason of the

expiration of a collective-bargaining agreement) or engage in any

concerted slowdown or other concerted interruption of operations.

Unanticipated emergency means an unexpected and unavoidable

situation, such as one involving severe weather conditions, natural

disaster, or mechanical breakdown, where cargo must be immediately

loaded on, or unloaded from, a vessel.

United States is defined at 8 U.S.C. 1101(a)(38).

United States Employment Service (USES) means the agency of the

Department of Labor, established under the Wagner-Peyser Act, which is

charged with administering the national system of public employment

offices.

United States (U.S.) worker means a worker who is a U.S. citizen, a

U.S. national, a permanent resident alien, or any other worker legally

permitted to work indefinitely in the United States.

Sec. ________.510 Employer attestations.

(a) Who may submit attestations? An employer (or the employer's

designated U.S. agent or representative) seeking to employ alien

crewmembers for a particular activity of longshore work under the

prevailing practice exception shall submit an attestation, provided

there is not in effect in the local port any collective bargaining

agreement covering at least 30 percent of the longshore workers. An

attestation is required for each port at which the employer intends to

use alien crewmembers for longshore work. The attestation shall

include: A completed Form ETA 9033, which shall be signed by the

employer (or the employer's designated agent or representative); and

facts and evidence prescribed in paragraphs (d) through (f) of this

section. This Sec. ________.510 shall not apply in the case of

longshore work performed at a particular location in the State of

Alaska. The procedures governing the filing of attestations under the

Alaska exception are set forth at Secs. ________.530 through

________.541.

(b) Where and when should attestations be submitted? (1)

Attestations must be submitted, by U.S. mail, private carrier, or

facsimile transmission to the U.S. Department of Labor ETA Regional

Office(s) which are designated by the Chief, Division of Foreign Labor

Certifications, USES. Attestations must be received and date-stamped by

DOL at least 14 calendar days prior to the date of the first

performance of the intended longshore activity, and shall be accepted

for filing or returned by ETA in accordance with paragraph (g) of this

section within 14 calendar days of the date received by ETA. An

attestation which is accepted by ETA solely because it was not reviewed

within 14 days is subject to subsequent invalidation pursuant to

paragraph (i) of this section. Every employer filing an attestation

shall have an agent or representative with a United States address.

Such address shall be clearly indicated on the Form ETA 9033. In order

to ensure that an attestation has been accepted for filing prior to the

date of the performance of the longshore activity, employers are

advised to take mailing time into account to make sure that ETA

receives the attestation at least 14 days prior to the first

performance of the longshore activity.

(2) Unanticipated Emergencies. ETA may accept for filing

attestations received after the 14-day deadline when due to an

unanticipated emergency, as defined in Sec. ________.502 of this part.

When an employer is claiming an unanticipated emergency, it shall

submit documentation to support such a claim. ETA shall then make a

determination on the validity of the claim, and shall accept the

attestation for filing or return it in accordance with paragraph (g) of

this section. ETA shall in no case accept an attestation received later

than the date of the first performance of the activity.

(c) What should be submitted? (1) Form ETA 9033 with accompanying

documentation. For each port, a completed and dated original Form ETA

9033, or facsimile transmission thereof, containing the required

attestation elements and the original signature of the employer (or the

employer's designated agent or representative) shall be submitted,

along with two copies of the completed, signed, and dated Form ETA

9033. (If the attestation is submitted by facsimile transmission, the

attestation containing the original signature shall be maintained at

the U.S. business address of the employer's designated agent or

representative). Copies of Form ETA 9033 are available at all

Department of Labor ETA Regional Offices and at the National Office. In

addition, the employer shall submit two sets of all facts and evidence

to show compliance with each of the attestation elements as prescribed

by the regulatory standards in paragraphs (d) through (f) of this

section. In the case of an investigation pursuant to subpart G of this

part, the employer shall have the burden of proof to establish the

validity of each attestation. The employer shall maintain in its

records at the office of its U.S. agent, for a period of at least 3

years from the date of filing, sufficient documentation to meet its

burden of proof, which shall at a minimum include the documentation

described in this Sec. ________.510, and shall make the documents

available to Department of Labor officials upon request.

Whenever any document is submitted to a Federal agency or retained

in the employer's records pursuant to this part, the document either

shall be in the English language or shall be accompanied by a written

translation into the English language certified by the translator as to

the accuracy of the translation and his/her competency to translate.

(2) Statutory precondition regarding collective bargaining

agreements. (i) The employer may file an attestation only when there is

no collective bargaining agreement in effect in the port covering 30

percent or more of the longshore workers in the port. The employer

shall attest on the Form ETA 9033 that no such collective bargaining

agreement exists at the port at the time that the attestation is filed.

(ii) The employer is not required to submit with the Form ETA 9033

documentation substantiating that there is no collective bargaining

agreement in effect in the port covering 30 percent or more of the

longshore workers. If a complaint is filed which presents reasonable

cause to believe that such an agreement exists, the Department shall

[[Page 3960]]

conduct an investigation. In such an investigation, the employer shall

have the burden of proving that no such collective bargaining agreement

exists.

(3) Ports for which attestations may be filed. Employers may file

an attestation for a port which is listed in Appendix A (U.S. Seaports)

to this subpart. Employers may also file an attestation for a

particular location not in Appendix A to this subpart if additional

facts and evidence are submitted with the attestation to demonstrate

that the location is a port, meeting all of the criteria as defined by

Sec. ________.502 of this part.

(4) Attestation elements. The attestation elements referenced in

paragraph (c)(1) of this section are mandated by sec. 258(c)(1)(B) of

the Act (8 U.S.C. 1288(c)(1)(B)). Section 258(c)(1)(B) of the Act

requires employers who seek to have alien crewmembers engage in a

longshore activity to attest as follows:

(i) The performance of the activity by alien crewmembers is

permitted under the prevailing practice of the particular port as of

the date of filing of the attestation;

(ii) The use of the alien crewmembers for such activity is not

during a strike or lockout in the course of a labor dispute, and is not

intended or designed to influence an election of a bargaining

representative for workers in the local port; and

(iii) Notice of the attestation has been provided by the owner,

agent, consignee, master, or commanding officer to the bargaining

representative of longshore workers in the local port, or, where there

is no such bargaining representative, notice has been provided to

longshore workers employed at the local port.

(d) The first attestation element: prevailing practice. For an

employer to be in compliance with the first attestation element, it is

required to have been the prevailing practice during the 12-month

period preceding the filing of the attestation, for a particular

activity of longshore work at the particular port to be performed by

alien crewmembers. For each port, a prevailing practice can exist for

any of four different types of longshore work: loading of cargo,

unloading of cargo, operation of cargo-related equipment, or handling

of mooring lines. It is thus possible that at a particular port it is

the prevailing practice for alien crewmembers to unload vessels but not

the prevailing practice to load them. An employer shall indicate on the

attestation form which of the four longshore activities it is claiming

is the prevailing practice for such work to be performed by alien

crewmembers.

(1) Establishing a prevailing practice.

(i) In establishing that a particular activity of longshore work is

the prevailing practice at a particular port, an employer shall submit

facts and evidence to show that in the 12-month period preceding the

filing of the attestation, one of the following conditions existed:

(A) Over fifty percent of vessels docking at the port used alien

crewmembers for the activity; or

(B) Alien crewmembers made up over fifty percent of the workers in

the port who engaged in the activity.

(ii) Prevailing practice after Secretary of State determination of

non-reciprocity. Section 258(d) of the Act provides a reciprocity

exception (separate from the prevailing practice exception) to the

prohibition on performance of longshore work by alien crewmembers in

U.S. ports. However, this reciprocity exception becomes nonapplicable

where the Secretary of State determines that, for a particular activity

of longshore work, a particular country (by law, regulation, or

practice) prohibits such activity by U.S. crewmembers in its ports.

When the Secretary of State places a country on the non-reciprocity

list (which means, for the purposes of this section, Prohibitions on

longshore work by U.S. nationals; listing by country at 22 CFR 89.1),

crewmembers on vessels from that country (that is, vessels that are

registered in that country or vessels whose majority ownership interest

is held by nationals of that country) are not permitted to perform

longshore work in U.S. waters, absent applicability of some exception

other than the reciprocity exception. The Secretary of State's

determination has the following effects in the establishment of a

prevailing practice for a particular longshore activity at a particular

U.S. port for purposes of the prevailing practice exception.

(A) An employer from any country, other than the country which is

placed on the non-reciprocity list, may include the longshore

activities performed by alien crewmembers on all vessels in

establishing the prevailing practice for a particular longshore

activity in a particular port.

(B) An employer from a country which is placed on the non-

reciprocity list may file an attestation for the prevailing practice

exception under the standards and requirements established in this

subpart F (except as provided in paragraph (d)(1)(ii)(C) of this

section), provided that the attestation is filed at least 12 months

after the date on which the employer's country is placed on the list.

(C) An employer from a country which is placed on the non-

reciprocity list may file an attestation pursuant to the prevailing

practice exception earlier than 12 months from the date on which the

employer's country is placed on the list, except that the following

restrictions shall apply to such attestation:

(1) The employer shall submit facts and evidence to show that, for

the 12-month period preceding the date of the attestation, the use of

alien crewmembers to perform a particular activity of longshore work

was permitted by the prevailing practice in the port (as defined in

paragraph (d)(1)(i) of this section) without considering or including

such activity by crewmembers on vessels from the employer's country; or

(2) The employer shall submit facts and evidence (including data on

activities performed by crewmembers on vessels from the employer's

country) to show that the use of alien crewmembers to perform a

particular activity of longshore work was permitted by the prevailing

practice in the port (as defined in paragraph (d)(1)(i) of this

section) for one of two periods--

(i) For the employer whose country has not previously been on the

non-reciprocity list, the period is the continuous 12-month period

prior to May 28, 1991 (the effective date of section 258 of the Act);

or

(ii) For the employer whose country was at some time on the non-

reciprocity list, but was subsequently removed from the non-reciprocity

list and then restored to the non-reciprocity list (on one or more

occasions), the period is the last continuous 12-month period during

which the employer's country was not under the reciprocity exception

(that is, was listed on the non-reciprocity list).

(iii) For purposes of this paragraph (d)(1):

(A) ``Workers in the port engaged in the activity'' means any

person who performed the activity in any calendar day;

(B) Vessels shall be counted each time they dock at the particular

port):

(C) Vessels exempt from section 258 of the INA for safety and

environmental protection shall not be included in counting the number

of vessels which dock at the port (see Department of Transportation

Regulations); and

(D) Automated vessels shall not be included in counting the number

of vessels which dock at the port. For establishing a prevailing

practice under

[[Page 3961]]

the automated vessel exception see Sec. ________.520 of this part.

(2) Documentation. In assembling the facts and evidence required by

paragraph (d)(1) of this section, the employer may consult with the

port authority which has jurisdiction over the local port, the

collective bargaining representative(s) of longshore workers at the

local port, other employers, or any other entity which is familiar with

the practices at the port. Such documentation shall include a written

summary of a survey of the experience of shipmasters who entered the

local port in the previous year; or a letter, affidavit, or other

written statement from an appropriate local port authority regarding

the use of alien crewmembers to perform the longshore activity at the

port in the previous year; or other documentation of comparable weight.

Written statements from collective bargaining representatives and/or

shipping agents with direct knowledge of practices regarding the use of

alien crewmembers in the local port may also be pertinent. Such

documentation shall accompany the Form ETA 9033, and any underlying

documentation which supports the employer's burden of proof shall be

maintained in the employer's records at the office of the U.S. agent as

required by paragraph (c)(1) of this section.

(e) The second attestation element: no strike or lockout; no

intention or design to influence bargaining representative election.

(1) The employer shall attest that, at the time of submitting the

attestation, there is not a strike or lockout in the course of a labor

dispute covering the employer's activity, and that it will not use

alien crewmembers during a strike or lockout after filing the

attestation. The employer shall also attest that the employment of such

aliens is not intended or designed to influence an election for a

bargaining representative for workers in the local port. Labor disputes

for purposes of this attestation element relate only to those involving

longshore workers at the port of intended employment. This attestation

element applies to strikes and lockouts and elections of bargaining

representatives at the local port where the use of alien crewmembers

for longshore work is intended.

(2) Documentation. As documentation to substantiate the requirement

in paragraph (e)(1) of this section, an employer may submit a statement

of the good faith efforts made to determine whether there is a strike

or lockout at the particular port, as, for example, by contacting the

port authority or the collective bargaining representative for

longshore workers at the particular port.

(f) The third attestation element: notice of filing. The employer

of alien crewmembers shall attest that at the time of filing the

attestation, notice of filing has been provided to the bargaining

representative of the longshore workers in the local port, or, where

there is no such bargaining representative, notice of the filing has

been provided to longshore workers employed at the local port through

posting in conspicuous locations and through other appropriate means.

(1) Notification of bargaining representative. No later than the

date the attestation is received by DOL to be considered for filing,

the employer of alien crewmembers shall notify the bargaining

representative (if any) of longshore workers at the local port that the

attestation is being submitted to DOL. The notice shall include a copy

of the Form ETA 9033, shall state the activity(ies) for which the

attestation is submitted, and shall state in that notice that the

attestation and accompanying documentation are available at the

national office of ETA for review by interested parties. The employer

may have its owner, agent, consignee, master, or commanding officer

provide such notice. Notices under this paragraph (f)(1) shall include

the following statement: ``Complaints alleging misrepresentation of

material facts in the attestation and/or failure to comply with the

terms of the attestation may be filed with any office of the Wage and

Hour Division of the United States Department of Labor.''

(2) Posting notice where there is no bargaining representative. If

there is no bargaining representative of longshore workers at the local

port when the employer submits an attestation to ETA, the employer

shall provide written notice to the port authority for distribution to

the public on request. In addition, the employer shall post one or more

written notices at the local port, stating that the attestation with

accompanying documentation has been submitted, the activity(ies) for

which the attestation has been submitted, and that the attestation and

accompanying documentation are available at the national office of ETA

for review by interested parties. Such posted notice shall be clearly

visible and unobstructed, and shall be posted in conspicuous places

where the longshore workers readily can read the posted notice on the

way to or from their duties. Appropriate locations for posting such

notices include locations in the immediate proximity of mandatory Fair

Labor Standards Act wage and hour notices and Occupational Safety and

Health Act occupational safety and health notices. The notice shall

include a copy of the Form ETA 9033 filed with DOL, shall provide

information concerning the availability of supporting documents for

examination at the national office of ETA, and shall include the

following statement: ``Complaints alleging misrepresentation of

material facts in the attestation and/or failure to comply with the

terms of the attestation may be filed with any office of the Wage and

Hour Division of the United States Department of Labor.''

(3) Documentation. The employer shall provide a statement setting

forth the name and address of the person to whom the notice was

provided and where and when the notice was posted and shall attach a

copy of the notice.

(g) Actions on attestations submitted for filing. Once an

attestation has been received from an employer, a determination shall

be made by the regional Certifying Officer whether to accept the

attestation for filing or return it. The regional Certifying Officer

may request additional explanation and/or documentation from the

employer in making this determination. An attestation which is properly

filled out and which includes accompanying documentation for each of

the requirements set forth at Sec. ________.510(d) through (f) shall be

accepted for filing by ETA on the date it is signed by the regional

Certifying Officer unless it falls within one of the categories set

forth in paragraph (g)(2) of this section. Once an attestation is

accepted for filing, ETA shall then follow the procedures set forth in

paragraph (g)(1) of this section. Upon acceptance of the employer's

attestation by ETA, the attestation and accompanying documentation will

be forwarded and shall be available in a timely manner for public

examination at the ETA national office. ETA shall not consider

information contesting an attestation received by ETA prior to the

determination to accept or return the attestation for filing. Such

information shall not be made part of ETA's administrative record on

the attestation, but shall be referred to ESA to be processed as a

complaint pursuant to subpart G of this part if the attestation is

accepted by ETA for filing.

(1) Acceptance. (i) If the attestation is properly filled out and

includes accompanying documentation for each of the requirements at

Sec. ________.510(d) through (f), and does not fall within one of the

categories set forth at paragraph (g)(2) of this section, ETA shall

accept the attestation for filing, provide notification to the INS

office having jurisdiction over the port where longshore work will be

performed, and

[[Page 3962]]

return to the employer, or the employer's agent or representative at a

U.S. address, one copy of the attestation form submitted by the

employer, with ETA's acceptance indicated thereon. The employer may

then use alien crewmembers for the particular activity of longshore

work at the U.S. port cited in the attestation in accordance with INS

regulations.

(ii) DOL is not the guarantor of the accuracy, truthfulness or

adequacy of an attestation accepted for filing.

(2) Unacceptable attestations. ETA shall not accept an attestation

for filing and shall return such attestation to the employer, or the

employer's agent or representative at a U.S. address, when one of the

following conditions exists:

(i) When the Form ETA 9033 is not properly filled out. Examples of

improperly filled out Form ETA 9033's include instances where the

employer has neglected to check all the necessary boxes, or where the

employer has failed to include the name of the port where it intends to

use the alien crewmembers for longshore work, or where the employer has

named a port that is not listed in Appendix A and has failed to submit

facts and evidence to support a showing that the location is a port as

defined by Sec. ________.502, or when the employer has failed to sign

the attestation or to designate an agent in the United States;

(ii) When the Form ETA 9033 with accompanying documentation is not

received by ETA at least 14 days prior to the date of performance of

the first activity indicated on the Form ETA 9033; unless the employer

is claiming an unanticipated emergency, has included documentation

which supports such claim, and ETA has found the claim to be valid;

(iii) When the Form ETA 9033 does not include accompanying

documentation for each of the requirements set forth at

Sec. ________.510 (d) through (f);

(iv) When the accompanying documentation required by paragraph (c)

of this section submitted by the employer, on its face, is inconsistent

with the requirements set forth at Sec. ________.510 (d) through (f).

Examples of such a situation include instances where the Form ETA 9033

pertains to one port and the accompanying documentation to another;

where the Form ETA 9033 pertains to one activity of longshore work and

the accompanying documentation obviously refers to another; or where

the documentation clearly indicates that only thirty percent, instead

of the required fifty percent, of the activity attested to is performed

by alien crewmembers;

(v) When the Administrator, Wage and Hour Division, has notified

ETA, in writing, after an investigation pursuant to subpart G of this

part, that the particular activity of longshore work which the employer

has attested is the prevailing practice at a particular port, is not,

in fact, the prevailing practice at the particular port;

(vi) When the Administrator, Wage and Hour Division, has notified

ETA, in writing, that a cease and desist order has been issued pursuant

to subpart G of this part, with respect to the attesting employer's

performance of the particular activity and port, in violation of a

previously accepted attestation;

(vii) When the Administrator, Wage and Hour Division, has notified

ETA, in writing, after an investigation pursuant to subpart G of this

part, that the particular employer has misrepresented or failed to

comply with an attestation previously submitted and accepted for

filing, but in no case for a period of more than one year after the

date of the Administrator's notice and provided that INS has not

advised ETA that the prohibition is in effect for a lesser period; or

(viii) When the Administrator, Wage and Hour Division, has notified

ETA, in writing, that the employer has failed to comply with any

penalty, sanction, or other remedy assessed in a final agency action

following an investigation by the Wage and Hour Division pursuant to

subpart G of this part.

(3) Resubmission. If the attestation is not accepted for filing

pursuant to the categories set forth in paragraph (g)(2) of this

section, ETA shall return to the employer, or the employer's agent or

representative, at a U.S. address, the attestation form and

accompanying documentation submitted by the employer. ETA shall notify

the employer, in writing, of the reason(s) that the attestation is

unacceptable. When an attestation is found to be unacceptable pursuant

to paragraphs (g)(2) (i) through (iv) of this section, the employer may

resubmit the attestation with the proper documentation. When an

attestation is found to be unacceptable pursuant to paragraphs (g)(2)

(v) through (viii) of this section and returned, such action shall be

the final decision of the Secretary of Labor.

(h) Effective date and validity of filed attestations. An

attestation is filed and effective as of the date it is accepted and

signed by the regional Certifying Officer. Such attestation is valid

for the 12-month period beginning on the date of acceptance for filing,

unless suspended or invalidated pursuant to subpart G of this part or

paragraph (i) of this section. The filed attestation expires at the end

of the 12-month period of validity.

(i) Suspension or invalidation of filed attestations. Suspension or

invalidation of an attestation may result from enforcement action(s)

under subpart G of this part (i.e., investigation(s) conducted by the

Administrator or cease and desist order(s) issued by the Administrator

regarding the employer's misrepresentation in or failure to carry out

its attestation); or from a discovery by ETA that it made an error in

accepting the attestation because such attestation falls within one of

the categories set forth in paragraph (g)(2) of this section.

(1) Result of Wage and Hour Division action. Upon the determination

of a violation under subpart G of this part, the Administrator shall,

pursuant to Sec. ________.660(b), notify the Attorney General of the

violation and of the Administrator's notice to ETA.

(2) Result of ETA action. If, after accepting an attestation for

filing, ETA finds that the attestation is unacceptable because it falls

within one of the categories set forth at paragraph (g)(2) of this

section, and as a result, ETA suspends or invalidates the attestation,

ETA shall notify the Attorney General of such suspension or

invalidation and shall return a copy of the attestation form to the

employer, or the employer's agent or representative, at a U.S. address.

ETA shall notify the employer, in writing, of the reason(s) that the

attestation is suspended or invalidated. When an attestation is found

to be suspended or invalidated pursuant to paragraphs (g)(2) (i)

through (iv) of this section, the employer may resubmit the attestation

with the proper documentation. When an attestation is suspended or

invalidated because it falls within one of the categories in paragraphs

(g)(2) (v) through (viii) of this section, such action shall be the

final decision of the Secretary of Labor, except as set forth in

subpart G of this part.

(j) Withdrawal of accepted attestations. (1) An employer who has

submitted an attestation which has been accepted for filing may

withdraw such attestation at any time before the 12-month period of its

validity terminates, unless the Administrator has found reasonable

cause under subpart G to commence an investigation of the particular

attestation. Such withdrawal may be advisable, for example, when the

employer learns that the particular activity(ies) of longshore work

which it has attested is the prevailing practice to perform with alien

crewmembers may not, in fact, have been the prevailing

[[Page 3963]]

practice at the particular port at the time of filing. Requests for

such withdrawals shall be in writing and shall be directed to the

regional Certifying Officer.

(2) Withdrawal of an attestation shall not affect an employer's

liability with respect to any failure to meet the conditions attested

to which took place before the withdrawal, or for misrepresentations in

an attestation. However, if an employer has not yet performed the

particular longshore activity(ies) at the port in question, the

Administrator will not find reasonable cause to investigate unless it

is alleged, and there is reasonable cause to believe, that the employer

has made misrepresentations in the attestation or documentation

thereof, or that the employer has not in fact given the notice attested

to.

(Approved by the Office of Management and Budget under Control No.

1205-0309)

Sec. ________.520 Special provisions regarding automated vessels.

In general, an attestation is not required in the case of a

particular activity of longshore work consisting of the use of

automated self-unloading conveyor belt or vacuum-actuated systems on a

vessel. The legislation creates a rebuttable presumption that the use

of alien crewmembers for the operation of such automated systems is the

prevailing practice. In order to overcome such presumption, it must be

shown by the preponderance of the evidence submitted by any interested

party, that the use of alien crewmembers for such activity is not the

prevailing practice. Longshore work involving the use of such equipment

shall be exempt from the attestation requirement only if the activity

consists of using that equipment. If the automated equipment is not

used in the particular activity of longshore work, an attestation is

required as described under Sec. ________.510 of this part if it is the

prevailing practice in the port to use alien crewmembers for this work,

except that in all cases, where an attestation is required for

longshore work to be performed at a particular location in the State of

Alaska, an employer shall file such attestation under the Alaska

exception pursuant to Secs. ________.530 through ________.541 on Form

ETA 9033-A. When automated equipment is used in the particular activity

of longshore work, an attestation is required only if the Administrator

finds, based on a preponderance of the evidence which may be submitted

by any interested party, that the performance of the particular

activity of longshore work is not the prevailing practice at the port,

or was during a strike or lockout or intended to influence an election

of a bargaining representative for workers in the local port, or if the

Administrator issues a cease and desist order against use of the

automated equipment without such attestation.

(a) Procedure when attestation is required. If it is determined

pursuant to subpart G of this part that an attestation is required for

longshore work consisting of the use of automated equipment at a

location other than in the State of Alaska, the employer shall comply

with all the requirements set forth at Sec. ________.510 of this part

except paragraph (d) of Sec. ________.510. In lieu of complying with

Sec. ________.510(d) of this part, the employer shall comply with

paragraph (b) of this section. If it is determined pursuant to subpart

G of this part that an attestation is required for longshore work

consisting of the use of automated equipment at a particular location

in the State of Alaska, the employer shall comply with all the

requirements set forth at Secs. ________.530 through ________.541 of

this part.

(b) The first attestation element: prevailing practice for

automated vessels. For an employer to be in compliance with the first

attestation element, it is required to have been the prevailing

practice that over fifty percent (as described in paragraph (b)(1) of

this section) of a particular activity of longshore work which was

performed through the use of automated self-unloading conveyor belt or

vacuum-actuated equipment at the particular port during the 12-month

period preceding the filing of the attestation, was performed by alien

crewmembers. For purposes of this paragraph (b), only automated vessels

shall be included in counting the number of vessels which dock at the

port.

(1) Establishing a prevailing practice.

(i) In establishing that the use of alien crewmembers to perform a

particular activity of longshore work consisting of the use of self-

unloading conveyor belt or vacuum-actuated systems on a vessel is the

prevailing practice at a particular port, an employer shall submit

facts and evidence to show that in the 12-month period preceding the

filing of the attestation, one of the following conditions existed:

(A) Over fifty percent of the automated vessels docking at the port

used alien crewmembers for the activity (for purposes of this paragraph

(b)(1), a vessel shall be counted each time it docks at the particular

port); or

(B) Alien crewmembers made up over fifty percent of the workers who

performed the activity with respect to such automated vessels.

(ii) Prevailing practice after Secretary of State determination of

non-reciprocity. Section 258(d) of the Act provides a reciprocity

exception (separate from the prevailing practice exception) to the

prohibition on performance of longshore work by alien crewmembers in

U.S. ports. However, this reciprocity exception becomes nonapplicable

where the Secretary of State determines that, for a particular activity

of longshore work, a particular country (by law, regulation, or

practice) prohibits such activity by U.S. crewmembers in its ports.

When the Secretary of State places a country on the non-reciprocity

list (which means, for the purposes of this section, Prohibitions on

longshore work by U.S. nationals; listing by country at 22 CFR 89.1),

crewmembers on vessels from that country (that is, vessels that are

registered in that country or vessels whose majority ownership interest

is held by nationals of that country) are not permitted to perform

longshore work in U.S. waters, absent applicability of some exception

other than the reciprocity exception. The Secretary of State's

determination has the following effects in the establishment of a

prevailing practice for a particular longshore activity at a particular

U.S. port for purposes of the prevailing practice exception.

(A) An employer from any country, other than the country which is

placed on the non-reciprocity list, may include the longshore

activities performed by alien crewmembers on all vessels in

establishing the prevailing practice for a particular longshore

activity in a particular port.

(B) An employer from a country which is placed on the non-

reciprocity list may file an attestation for the prevailing practice

exception under the standards and requirements established in this

subpart F (except as provided in paragraph (b)(1)(ii)(C) of this

section), provided that the attestation is filed at least 12 months

after the date on which the employer's country is placed on the list.

(C) An employer from a country which is placed on the non-

reciprocity list may file an attestation pursuant to the prevailing

practice exception earlier than 12 months from the date on which the

employer's country is placed on the list, except that the following

restrictions shall apply to such attestation:

(1) The employer shall submit facts and evidence to show that, for

the 12-month period preceding the date of the attestation, the use of

alien

[[Page 3964]]

crewmembers to perform a particular activity of longshore work was

permitted by the prevailing practice in the port (as defined in

paragraph (d)(1)(i) of this section) without considering or including

such activity by crewmembers on vessels from the employer's country; or

(2) The employer shall submit facts and evidence (including data on

activities performed by crewmembers on vessels from the employer's

country) to show that the use of alien crewmembers to perform a

particular activity of longshore work was permitted by the prevailing

practice in the port (as defined in paragraph (b)(1)(i) of this

section) for one of two periods--

(i) For the employer whose country has not previously been on the

non-reciprocity list, the period is the continuous 12-month period

prior to May 28, 1991 (the effective date of section 258 of the Act);

or

(ii) For the employer whose country was at some time on the non-

reciprocity list, but was subsequently removed from the non-reciprocity

list and then restored to the non-reciprocity list (on one or more

occasions), the period is the last continuous 12-month period during

which the employer's country was not under the reciprocity exception

(that is, was listed on the non-reciprocity list).

(2) Documentation. In assembling the documentation described in

paragraph (b)(1) of this section, the employer may consult with the

port authority which has jurisdiction over the local port, the

collective bargaining representative(s) of longshore workers at the

local port, other employers, or any other entity which is familiar with

the practices at the port. The documentation shall include a written

summary of a survey of the experience of shipmasters who entered the

local port in the previous year; or a letter, affidavit, or other

written statement from an appropriate local port authority regarding

the use of alien crewmembers to perform the longshore activity at the

port in the previous year; or other documentation of comparable weight.

Written statements from collective bargaining representatives and/or

shipping agents with direct knowledge of practices regarding the use of

alien crewmembers may also be pertinent. Such documentation shall

accompany the Form ETA 9033, and any underlying documentation which

supports the employer's burden of proof shall be maintained in the

employer's records at the office of the U.S. agent as required under

Sec. ________.510(c)(1) of this part.

(Approved by the Office of Management and Budget under Control No.

1205-0309)

Alaska Exception

Sec. ________.530 Special provisions regarding the performance of

longshore activities at locations in the State of Alaska.

Applicability. Section Sec. ________.510 of this part shall not

apply to longshore work performed at locations in the State of Alaska.

The performance of longshore work by alien crewmembers at locations in

the State of Alaska shall instead be governed by Secs. ________.530

through ________.541. The use of alien crewmembers to perform longshore

work in Alaska consisting of the use of an automated self-unloading

conveyor belt or vacuum-actuated system on a vessel shall continue to

be governed by the provisions of Sec. ________.520 of this part, except

that, if the Administrator finds, based on a preponderance of the

evidence which may be submitted by any interested party, that an

attestation is required because the performance of the particular

activity of longshore work is not the prevailing practice at the

location in the State of Alaska, or was during a strike or lockout or

intended to influence an election of a bargaining representative for

workers at that location, or if the Administrator issues a cease and

desist order against use of the automated equipment without such an

attestation, the required attestation shall be filed pursuant to the

Alaska exception at Secs. ________.530 through ________.541 and not the

prevailing practice exception at Sec. ________.510.

Sec. ________.531 Who may submit attestations for locations in Alaska?

In order to use alien crewmembers to perform longshore activities

at a particular location in the State of Alaska an employer shall

submit an attestation on Form ETA 9033-A. As noted at

Sec. ________.502, ``Definitions,'' for purposes of Secs. ________.530

through ________.541, which govern the performance of longshore

activities by alien crewmembers under the Alaska exception,

``employer'' includes any agent or representative designated by the

employer. An employer may file a single attestation for multiple

locations in the State of Alaska.

Sec. ________.532 Where and when should attestations be submitted for

locations in Alaska?

(a) Attestations shall be submitted, by U.S. mail, private carrier,

or facsimile transmission to the U.S. Department of Labor regional

office of the Employment and Training Administration in Seattle,

Washington. Except as provided in paragraph (b) of this section,

attestations shall be received and date-stamped by the Department at

least 30 calendar days prior to the date of the first performance of

the longshore activity. The attestation shall be accepted for filing or

returned by ETA in accordance with Sec. ________.538 within 14 calendar

days of the date received by ETA. An attestation which is accepted by

ETA solely because it was not reviewed within 14 days is subject to

subsequent invalidation pursuant to Sec. ________.540 of this part. An

employer filing an attestation shall have an agent or representative

with a United States address. Such address shall be clearly indicated

on the Form ETA 9033-A. In order to ensure that an attestation has been

accepted for filing prior to the date of the first performance of the

longshore activity, employers are advised to take mailing time into

account to make sure that ETA receives the attestation at least 30 days

prior to the first performance of the longshore activity.

(b) Late filings. ETA may accept for filing attestations received

after the 30-day deadline where the employer could not have reasonably

anticipated the need to file an attestation for the particular location

at that time. When an employer states that it could not have reasonably

anticipated the need to file the attestation at that time, it shall

submit documentation to ETA to support such a claim. ETA shall then

make a determination on the validity of the claim and shall accept the

attestation for filing or return it in accordance with

Sec. ________.538 of this part. ETA in no case shall accept an

attestation received less than 24 hours prior to the first performance

of the activity.

Sec. ________.533 What should be submitted for locations in Alaska?

(a) Form ETA 9033-A with accompanying documentation. A completed

and dated original Form ETA 9033-A, or facsimile transmission thereof,

containing the required attestation elements and the original signature

of the employer or the employer's agent or designated representative,

along with two copies of the completed, signed, and dated Form ETA

9033-A shall be submitted to ETA. (If the attestation is submitted by

facsimile transmission, the attestation containing the original

signature shall be maintained at the U.S. business address of the

employer's designated agent or representative). Copies of Form ETA

9033-A are available at all Department of Labor Regional offices and at

the National office. In addition, the employer shall submit two sets of

facts and evidence to show compliance

[[Page 3965]]

with the fourth attestation element at Sec. ________.537 of this part.

In the case of an investigation pursuant to subpart G of this part, the

employer has the burden of proof to establish the validity of each

attestation. The employer shall maintain in its records at the office

of its U.S. agent, for a period of at least 3 years from the date of

filing, sufficient documentation to meet its burden of proof, which

shall at a minimum include the documentation described in

Secs. ________.530 through --------.541, and shall make the documents

available to Department of Labor officials upon request. Whenever any

document is submitted to a Federal agency or retained in the employer's

records pursuant to this part, the document shall either be in the

English language or shall be accompanied by a written translation into

the English language certified by the translator as to the accuracy of

the translation and his/her competency to translate.

(b) Attestation elements. The attestation elements referenced in

Secs. ________.534 through ________.537 of this part are mandated by

Sec. 258(d)(1) of the Act (8 U.S.C. 1288(d)(1)). Section 258(d)(1) of

the Act requires employers who seek to have alien crewmembers engage in

longshore activity at locations in the State of Alaska to attest as

follows:

(1) The employer will make a bona fide request for United States

longshore workers who are qualified and available in sufficient numbers

to perform the activity at the particular time and location from the

parties to whom notice has been provided under Sec. ________.537(a)(1)

(ii) and (iii), except that:

(i) Wherever two or more contract stevedoring companies have signed

a joint collective bargaining agreement with a single labor

organization recognized as an exclusive bargaining representative of

United States longshore workers within the meaning of the National

Labor Relations Act (29 U.S.C. 141 et seq.), the employer may request

longshore workers from only one such contract stevedoring company, and

(ii) A request for longshore workers to an operator of a private

dock may be made only for longshore work to be performed at that dock

and only if the operator meets the requirements of section 32 of the

Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932);

(2) The employer will employ all United States longshore workers

made available in response to the request made pursuant to

Sec. ________.534(a)(1) who are qualified and available in sufficient

numbers and who are needed to perform the longshore activity at the

particular time and location to which the employer has attested;

(3) The use of alien crewmembers for such activity is not intended

or designed to influence an election of a bargaining representative for

workers in the State of Alaska; and

(4) Notice of the attestation has been provided to:

(i) Labor organizations which have been recognized as exclusive

bargaining representatives of United States longshore workers within

the meaning of the National Labor Relations Act (29 U.S.C. 141 et seq.)

and which make available or intend to make available workers to the

particular location where the longshore work is to be performed;

(ii) Contract stevedoring companies which employ or intend to

employ United States longshore workers at that location; and

(iii) Operators of private docks at which the employer will use

longshore workers.

Sec. ________.534 The first attestation element for locations in

Alaska: Bona fide request for dispatch of United States longshore

workers.

(a) The first attestation element shall be satisfied when the

employer signs Form ETA 9033-A, attesting that, before using alien

crewmembers to perform longshore work during the validity period of the

attestation, the employer will make a bona fide request for United

States longshore workers who are qualified and available in sufficient

numbers to perform the specified longshore activity from the parties to

whom notice is provided under Sec. ________.537(a)(1) (ii) and (iii).

Although an employer is required to provide notification of filing to

labor organizations recognized as exclusive bargaining representatives

of United States longshore workers pursuant to

Sec. ________.537(a)(1)(i) of this part, an employer need not request

dispatch of United States longshore workers directly from such parties.

The requests for dispatch of United States longshore workers pursuant

to this section shall be directed to contract stevedoring companies

which employ or intend to employ United States longshore workers at

that location, and to operators of private docks at which the employer

will use longshore workers. An employer is not required to request

dispatch of United States longshore workers from private dock operators

or contract stevedoring companies which do not meet the requirements of

section 32 of the Longshore and Harbor Workers' Compensation Act (33

U.S.C. 932) or, in the case of contract stevedoring companies, which

are not licensed to do business in the State of Alaska.

(1) Wherever two or more contract stevedoring companies have signed

a joint collective bargaining agreement with a single qualified labor

organization, the employer may request longshore workers from only one

of such contract stevedoring companies. A qualified labor organization

is one which has been recognized as an exclusive bargaining

representative of United States longshore workers within the meaning of

the National Labor Relations Act (29 U.S.C. 141 et seq.) and which

makes available or intends to make available workers to the particular

location where the longshore work is to be performed.

(2) A request for longshore workers to an operator of a private

dock may be made only for longshore work to be performed at that dock.

(3) An employer shall not be required to request longshore workers

from a party if that party has notified the employer in writing that it

does not intend to make available United States longshore workers who

are qualified and available in sufficient numbers to the time and

location at which the longshore work is to be performed.

(4) A party that has provided such written notice to the employer

under paragraph (a)(3) of this section may subsequently notify the

employer in writing that it is prepared to make available United States

longshore workers who are qualified and available in sufficient numbers

to perform the longshore activity at the time and location where the

longshore work is to be performed. In that event, the employer's

obligations to that party under Secs. ________.534 and ________.535 of

this part shall recommence 60 days after its receipt of such notice.

(5) When a party has provided written notice to the employer under

paragraph (a)(3) of this section that it does not intend to dispatch

United States longshore workers to perform the longshore work attested

to by the employer, such notice shall expire upon the earliest of the

following events:

(i) When the terms of such notice specify an expiration date at

which time the employer's obligation to that party under

Secs. ________.534 and ________.535 of this part shall recommence;

(ii) When retracted pursuant to paragraph (a)(4) of this section;

or

(iii) Upon the expiration of the validity of the attestation.

(b) Documentation. To substantiate the requirement in paragraph (a)

of this section, an employer shall develop and

[[Page 3966]]

maintain documentation to meet the employer's burden of proof under the

first attestation element. The employer shall retain records of all

requests for dispatch of United States longshore workers to perform the

longshore work attested to. Such documentation shall consist of

letters, telephone logs, facsimiles or other memoranda to show that,

before using alien crewmembers to perform longshore work, the employer

made a bona fide request for United States longshore workers who are

qualified and available in sufficient numbers to perform the longshore

activity. At a minimum, such documentation shall include the date the

request was made, the name and telephone number of the particular

individual(s) to whom the request for dispatch was directed, and the

number and composition of full work units requested. Further, whenever

any party has provided written notice to the employer under paragraph

(a)(3) of this section, the employer shall retain the notice for the

period of time specified in Sec. ________.533 of this part, and, if

appropriate, any subsequent notice by that party that it is prepared to

make available United States longshore workers at the times and

locations attested to.

Sec. ________.535 The second attestation element for locations in

Alaska: Employment of United States longshore workers.

(a) The second attestation element shall be satisfied when the

employer signs Form ETA 9033-A, attesting that during the validity

period of the attestation, the employer will employ all United States

longshore workers made available in response to the request for

dispatch who, in compliance with applicable industry standards in the

State of Alaska, including safety considerations, are qualified and

available in sufficient numbers and are needed to perform the longshore

activity at the particular time and location attested to.

(1) In no case shall an employer filing an attestation be required

to hire less than a full work unit of United States longshore workers

needed to perform the longshore activity nor be required to provide

overnight accommodations for the longshore workers while employed. For

purposes of this section, ``full work unit'' means the full complement

of longshore workers needed to perform the longshore activity, as

determined by industry standards in the State of Alaska, including

safety considerations. Where the makeup of a full work unit is covered

by one or more collective bargaining agreements in effect at the time

and location where longshore work is to be performed, the provisions of

such agreement(s) shall be deemed to be in conformance with industry

standards in the State of Alaska.

(2) In no case shall an employer be required to provide

transportation to the vessel where the longshore work is to be

performed, except where:

(i) Surface transportation is available; for purposes of this

section, ``surface transportation'' means a tugboat or other vessel

which is appropriately insured, operated by licensed personnel, and

capable of safely transporting U.S. longshore workers from shore to a

vessel on which longshore work is to be performed;

(ii) Such transportation may be safely accomplished; and

(iii) (A) Travel time to the vessel does not exceed one-half hour

each way; and

(B) Travel distance to the vessel from the point of embarkation

does not exceed 5 miles; for purposes of this section, ``point of

embarkation'' means a dock or landing at which U.S. longshore workers

may be safely boarded for transport from shore to a vessel on which

longshore work is to be performed; or

(C) In the cases of Wide Bay, Alaska, and Klawock/Craig, Alaska,

travel time does not exceed 45 minutes each way and travel distance to

the vessel from the point of embarkation does not exceed 7.5 miles,

unless the party responding to the request for dispatch agrees to

lesser time and distance specifications.

(3) If a United States longshore worker is capable of getting to

and from the vessel where longshore work is to be performed when the

vessel is beyond the time and distance limitations specified in

paragraph (a)(2)(iii) of this section, and where all of the other

criteria governing the employment of United States longshore workers

under this subpart are met (e.g., ``qualified and available in

sufficient numbers''), the employer is still obligated to employ the

worker to perform the longshore activity. In such instance, however,

the employer shall not be required to provide such transportation nor

to reimburse the longshore worker for the cost incurred in transport to

and from the vessel.

(4) Where an employer is required to provide transportation to the

vessel because it is within the time and distance limitations specified

in (a)(2)(iii) of this section, the employer also shall be required to

provide return transportation to the point of embarkation.

(b) Documentation. To substantiate the requirement in paragraph (a)

of this section, an employer shall develop and maintain documentation

to meet the employer's burden of proof. Such documentation shall

include records of payments to contract stevedoring companies or

private dock operators, payroll records for United States longshore

workers employed, or other documentation to show clearly that the

employer has met its obligation to employ all United States longshore

workers made available in response to a request for dispatch who are

qualified and available in sufficient numbers. The documentation shall

specify the number of full work units employed pursuant to this

section, the composition of such full work units (i.e., number of

workers by job title), and the date(s) and location(s) where the

longshore work was performed. The employer also shall develop and

maintain documentation concerning the provision of transportation from

the point of embarkation to the vessel on which longshore work is to be

performed. Each time one or more United States longshore workers are

dispatched in response to the request under Sec. ________.534, the

employer shall retain a written record of whether transportation to the

vessel was provided and the time and distance from the point of

embarkation to the vessel.

Sec. ________.536 The third attestation element for locations in

Alaska: No intention or design to influence bargaining representative

election.

(a) The employer shall attest that use of alien crewmembers to

perform the longshore activity specified on the Form ETA 9033-A is not

intended or designed to influence an election of a bargaining

representative for workers in the State of Alaska.

(b) Documentation. The employer need not develop nor maintain

documentation to substantiate the statement referenced in paragraph (a)

of this section. In the case of an investigation, however, the employer

has the burden of proof to show that the use of alien crewmembers to

perform the longshore activity specified on the Form ETA 9033-A was not

intended nor designed to influence an election of a bargaining

representative for workers in the State of Alaska.

Sec. ________.537 The fourth attestation element for locations in

Alaska: Notice of filing.

(a)(1) The employer shall attest that at the time of filing the

attestation, notice of filing has been provided to:

(i) Labor organizations which have been recognized as exclusive

bargaining representatives of United States

[[Page 3967]]

longshore workers within the meaning of the National Labor Relations

Act (29 U.S.C. 141 et seq.) and which make available or intend to make

available workers to the particular location where the longshore work

is to be performed;

(ii) Contract stevedoring companies which employ or intend to

employ United States longshore workers at the location where the

longshore work is to be performed; and

(iii) Operators of private docks at which the employer will use

longshore workers.

(2) The notices provided under paragraph (a)(1) of this section

shall include a copy of the Form ETA 9033-A to be submitted to ETA,

shall provide information concerning the availability of supporting

documents for public examination at the national office of ETA, and

shall include the following statement: ``Complaints alleging a

misrepresentation of material facts in the attestation and/or failure

to comply with the terms of the attestation may be filed with any

office of the Wage and Hour Division of the United States Department of

Labor.''

(b) The employer shall request a copy of the Certificate of

Compliance issued by the district director of the Office of Workers'

Compensation Programs under section 37 of the Longshore and Harbor

Workers' Compensation Act (33 U.S.C. 932) from the parties to whom

notice is provided pursuant to paragraphs (a)(1) (ii) and (iii) of this

section. An employer's obligation to make a bona fide request for

dispatch of U.S. longshore workers under Sec. ________.534 of this part

before using alien crewmembers to perform the longshore work attested

to shall commence upon receipt of the copy of the Certificate of

Compliance.

(c) Documentation. The employer shall develop and maintain

documentation sufficient to meet its burden of proving the validity of

the statement referenced in paragraphs (a) and (b) of this section and

attested to on the Form ETA 9033-A. Such documentation shall include a

copy of the notices provided, as required by paragraph (a)(1) of this

section, and shall be submitted to ETA along with the Form ETA 9033-A.

Sec. ________.538 Actions on attestations submitted for filing for

locations in Alaska.

Once an attestation has been received from an employer, a

determination shall be made by the regional certifying officer whether

to accept the attestation for filing or return it. The regional

certifying officer may request additional explanation and/or

documentation from the employer in making this determination. An

attestation which is properly filled out and which includes

accompanying documentation for the requirement set forth at

Sec. ________.537 of this part shall be accepted for filing by ETA on

the date it is signed by the regional certifying officer unless it

falls within one of the categories set forth in paragraph (b) of this

section. Once an attestation is accepted for filing, ETA shall then

follow the procedures set forth in paragraph (a)(1) of this section.

Upon acceptance of the employer's attestation by ETA, the attestation

and accompanying documentation shall be forwarded to and be available

for public examination at the ETA national office in a timely manner.

ETA shall not consider information contesting an attestation received

by ETA prior to the determination to accept or return the attestation

for filing. Such information shall not be made a part of ETA's

administrative record on the attestation, but shall be referred to ESA

to be processed as a complaint pursuant to subpart G of this part if

the attestation is accepted by ETA for filing.

(a) Acceptance. (1) If the attestation is properly filled out and

includes accompanying documentation for the requirement set forth at

Sec. ________.537, and does not fall within one of the categories set

forth at paragraph (b) of this section, ETA shall accept the

attestation for filing, provide notification to the INS office having

jurisdiction over the location where longshore work will be performed,

and return to the employer, or the employer's agent or representative

at a U.S. address, one copy of the attestation form submitted by the

employer, with ETA's acceptance indicated thereon. Before using alien

crewmembers to perform the longshore work attested to on Form ETA 9033-

A, the employer shall make a bona fide request for and employ United

States longshore workers who are qualified and available in sufficient

numbers pursuant to Secs. ________.534 and ________.535. Where such a

request for dispatch of United States longshore workers is

unsuccessful, either in whole or in part, any use of alien crewmembers

to perform longshore activity shall be in accordance with INS

regulations.

(2) DOL is not the guarantor of the accuracy, truthfulness or

adequacy of an attestation accepted for filing.

(b) Unacceptable attestations. ETA shall not accept an attestation

for filing and shall return such attestation to the employer, or the

employer's agent or representative at a U.S. address, when any one of

the following conditions exists:

(1) When the Form ETA 9033-A is not properly filled out. Examples

of improperly filled out Form ETA 9033-A's include instances where the

employer has neglected to check all the necessary boxes, where the

employer has failed to include the name of any port, city, or other

geographical reference point where longshore work is to be performed,

or where the employer has failed to sign the attestation or to

designate an agent in the United States.

(2) When the Form ETA 9033-A with accompanying documentation is not

received by ETA at least 30 days prior to the first performance of the

longshore activity, unless the employer is claiming that it could not

have reasonably anticipated the need to file the attestation for that

location at that time, and has included documentation which supports

this contention, and ETA has found the claim to be valid.

(3) When the Form ETA 9033-A does not include accompanying

documentation for the requirement set forth at Sec. ________.537.

(4) When the accompanying documentation submitted by the employer

and required by Sec. ________.537, on its face, is inconsistent with

that section. Examples of such a situation include an instance where

the Form ETA 9033-A indicates that the longshore work will be performed

at a particular private dock and the documentation required under the

notice attestation element indicates that notice was provided to an

operator of a different private dock, or where the longshore work is to

be performed at a particular time and location in the State of Alaska

and the notice of filing provided to qualified labor organizations and

contract stevedoring companies indicates that the longshore work is to

be performed at a different time and/or location.

(5) When the Administrator, Wage and Hour Division, has notified

ETA, in writing, after an investigation pursuant to subpart G of this

part, that a cease and desist order has been issued pursuant to subpart

G of this part, with respect to the attesting employer's performance of

longshore work at a particular location in the State of Alaska, in

violation of a previously accepted attestation.

(6) When the Administrator, Wage and Hour Division, has notified

ETA, in writing, after an investigation pursuant to subpart G of this

part, that the particular employer has misrepresented or failed to

comply with an attestation previously submitted and accepted for

filing, but in no case for a period of more than one year after the

date of the Administrator's notice and provided that INS has not

advised ETA that the

[[Page 3968]]

prohibition is in effect for a lesser period.

(7) When the Administrator, Wage and Hour Division, has notified

ETA, in writing, that the employer has failed to comply with any

penalty, sanction, or other remedy assessed in a final agency action

following an investigation by the Wage and Hour Division pursuant to

subpart G of this part.

(c) Resubmission. If the attestation is not accepted for filing

pursuant to paragraph (b) of this section, ETA shall return to the

employer, or the employer's agent or representative, at a U.S. address,

the attestation form and accompanying documentation submitted by the

employer. ETA shall notify the employer, in writing, of the reason(s)

that the attestation is unacceptable. When an attestation is found to

be unacceptable pursuant to paragraph (b) (1), (2), (3), or (4) of this

section, the employer may resubmit the corrected attestation with the

proper documentation. When an attestation is found to be unacceptable

pursuant to paragraph (b) (5), (6), or (7) of this section and

returned, such action shall be the final decision of the Secretary of

Labor.

Sec. ________.539 Effective date and validity of filed attestations

for locations in Alaska.

An attestation is filed and effective as of the date it is accepted

and signed by the regional certifying officer. Such attestation is

valid for the 12-month period beginning on the date of acceptance for

filing, unless suspended or invalidated pursuant to Sec. ________.540

of this part. The filed attestation expires at the end of the 12-month

period of validity.

Sec. ________.540 Suspension or invalidation of filed attestations for

locations in Alaska.

Suspension or invalidation of an attestation may result from

enforcement action(s) under subpart G of this part (i.e.,

investigation(s) conducted by the Administrator or cease and desist

order(s) issued by the Administrator regarding the employer's

misrepresentation in or failure to carry out its attestation); or from

a discovery by ETA that it made an error in accepting the attestation

because such attestation falls within one of the categories set forth

in Sec. ________.538(b).

(a) Result of Wage and Hour Division action. Upon the determination

of a violation under subpart G of this part, the Administrator shall,

pursuant to Sec. ________.665(b), notify the Attorney General of the

violation and of the Administrator's notice to ETA.

(b) Result of ETA action. If, after accepting an attestation for

filing, ETA finds that the attestation is unacceptable because it falls

within one of the categories set forth at Sec. ________.538(b) and, as

a result, ETA suspends or invalidates the attestation, ETA shall notify

the Attorney General of such suspension or invalidation and shall

return a copy of the attestation form to the employer, or the

employer's agent or representative at a U.S. address. ETA shall notify

the employer, in writing, of the reason(s) that the attestation is

suspended or invalidated.

Sec. ________.541 Withdrawal of accepted attestations for locations in

Alaska.

(a) An employer who has submitted an attestation which has been

accepted for filing may withdraw such attestation at any time before

the 12-month period of its validity terminates, unless the

Administrator has found reasonable cause under subpart G to commence an

investigation of the particular attestation. Such withdrawal may be

advisable, for example, when the employer learns that the country in

which the vessel is registered and of which nationals of such country

hold a majority of the ownership interest in the vessel has been

removed from the non-reciprocity list (which means, for purposes of

this section, Prohibitions on longshore work by U.S. nationals; listing

by country at 22 CFR 89.1). In that event, an attestation would no

longer be required under subpart F of this part, since upon being

removed from the non-reciprocity list the performance of longshore work

by alien crewmembers would be permitted under the reciprocity exception

at sec. 258(e) of the Act (8 U.S.C. 1288(e)). Requests for withdrawals

shall be in writing and shall be directed to the regional certifying

officer.

(b) Withdrawal of an attestation shall not affect an employer's

liability with respect to any failure to meet the conditions attested

to which took place before the withdrawal, or for misrepresentations in

an attestation. However, if an employer has not yet performed the

longshore activities at the location(s) in question, the Administrator

shall not find reasonable cause to investigate unless it is alleged,

and there is reasonable cause to believe, that the employer has made

misrepresentations in the attestation or documentation thereof, or that

the employer has not in fact given the notice attested to.

Public Access

Sec. ________.550 Public access.

(a) Public examination at ETA. ETA shall make available for public

examination in Washington, DC, a list of employers which have filed

attestations under this subpart, and for each such employer, a copy of

the employer's attestation and accompanying documentation it has

received.

(b) Notice to public. ETA periodically shall publish a list in the

Federal Register identifying under this subpart employers which have

submitted attestations; employers which have attestations on file; and

employers which have submitted attestations which have been found

unacceptable for filing.

(Approved by the Office of Management and Budget under Control No.

1205-0309)

Appendix A to Subpart F--U.S. Seaports

The list of 224 seaports includes all major and most smaller

ports serving ocean and Great Lakes commerce.

North Atlantic Range

Bucksport, ME

Eastport, ME

Portland, ME

Searsport, ME

Portsmouth, NH

Boston, MA

Fall River, MA

New Bedford, MA

Providence, RI

Bridgeport, CT

New Haven, CT

New London, CT

Albany, NY

New York, NY/NJ

Camden, NJ

Gloucester City, NJ

Paulsboro, NJ

Chester, PA

Marcus Hook, PA

Philadelphia, PA

Delaware City, DE

Wilmington, DE

Baltimore, MD

Cambridge, MD

Alexandria, VA

Chesapeake, VA

Hopewell, VA

Newport News, VA

Norfolk, VA

Portsmouth, VA

Richmond, VA

South Atlantic Range

Morehead City, NC

Southport, NC

Wilmington, NC

Charleston, SC

Georgetown, SC

Port Royal, SC

Brunswick, GA

Savannah, GA

St. Mary, GA

Cocoa, FL

Fernandina Beach, FL

Fort Lauderdale, FL

Fort Pierce, FL

Jacksonville, FL

Miami, FL

Palm Beach, FL

Port Canaveral, FL

[[Page 3969]]

Port Everglades, FL

Riviera, FL

Aguadilla, PR

Ceiba, PR

Guanica, PR

Guayanilla, PR

Humacao, PR

Jobos, PR

Mayaguez, PR

Ponce, PR

San Juan, PR

Vieques, PR

Yabucoa, PR

Alucroix, VI

Charlotte Amalie, VI

Christiansted, VI

Frederiksted, VI

Limetree Bay, VI

North Pacific Range

Astoria, OR

Bandon, OR

Columbia City, OR

Coos Bay, OR

Mapleton, OR

Newport, OR

Portland, OR

Rainier, OR

Reedsport, OR

St. Helens, OR

Toledo, OR

Anacortes, WA

Bellingham, WA

Edmonds (Edwards Point), WA

Everett, WA

Ferndale, WA

Friday Harbor, WA

Grays Harbor, WA

Kalama, WA

Longview, WA

Olympia, WA

Point Wells, WA

Portage, WA

Port Angeles, WA

Port Gamble, WA

Port Townsend, WA

Raymond, WA

Seattle, WA

Tacoma, WA

Vancouver, WA

Willapa Harbor, WA

Winslow, WA

Great Lakes Range

Duluth, MN

Silver Bay, MN

Green Bay, WI

Kenosha, WI

Manitowoc, WI

Milwaukee, WI

Sheboygan, WI

Superior, WI

Alpena, MI

Bay City, MI

Detroit, MI

De Tour Village, MI

Essexville, MI

Ferrysburg, MI

Grand Haven, MI

Marine City, MI

Muskegon, MI

Port Huron, MI

Presque Isle, MI

Rogers City, MI

Saginaw, MI

Sault Ste Marie, MI

Chicago, IL

Ashtabula, OH

Cincinnati, OH

Cleveland, OH

Conneaut, OH

Fairport, OH

Huron, OH

Lorain, OH

Sandusky, OH

Toledo, OH

Erie, PA

Buffalo, NY

Odgensburg, NY

Oswego, NY

Rochester, NY

Burns Harbor, IN

E. Chicago, IN

Gary, IN

Gulf Coast Range

Panama City, FL

Pensacola, FL

Port Manatee, FL

Port St. Joe, FL

Tampa, FL

Mobile, AL

Gulfport, MS

Pascagoula, MS

Baton Rouge, LA

Gretna, LA

Lake Charles, LA

Louisiana Offshore Oil Port, LA

New Orleans, LA

Beaumont, TX

Brownsville, TX

Corpus Christi, TX

Freeport, TX

Galveston, TX

Harbor Island, TX

Houston, TX

Orange, TX

Port Arthur, TX

Port Isabel, TX

Port Lavaca, TX

Port Neches, TX

Sabine, TX

Texas City, TX

South Pacific Range

Alameda, CA

Antioch, CA

Benicia, CA

Carlsbad, CA

Carpinteria, CA

Crockett, CA

El Segundo, CA

Eureka, CA

Estero Bay, CA

Gaviota, CA

Huntington Beach, CA

Long Beach, CA

Los Angeles, CA

Mandalay Beach, CA

Martinez, CA

Moss Landing, CA

Oakland, CA

Pittsburg, CA

Port Costa, CA

Port Hueneme, CA

Port San Luis, CA

Redwood City, CA

Richmond, CA

Sacramento, CA

San Diego, CA

San Francisco, CA

Selby, CA

Stockton, CA

Vallejo, CA

Ventura, CA

Barbers Point, HI

Hilo, HI

Honolulu, HI

Kahului, HI

Kaunakakai, HI

Kawaihae, HI

Nawiliwili, HI

Port Allen, HI

Subpart G--Enforcement of the Limitations Imposed on Employers

Using Alien Crewmembers for Longshore Activities in U.S. Ports

Sec. ________.600 Enforcement Authority of Administrator, Wage and

Hour Division.

(a) The Administrator shall perform all the Secretary's

investigative and enforcement functions under section 258 of the INA (8

U.S.C. 1288) and subparts F and G of this part.

(b) The Administrator, pursuant to a complaint, shall conduct such

investigations as may be appropriate and, in connection therewith,

enter and inspect such places and such records (and make transcriptions

or copies thereof), question such persons and gather such information

as deemed necessary by the Administrator to determine compliance

regarding the matters which are the subject of the investigation.

(c) An employer being investigated shall make available to the

Administrator such records, information, persons, and places as the

Administrator deems appropriate to copy, transcribe, question, or

inspect. No employer subject to the provisions of section 258 of the

INA (8 U.S.C. 1288) and subparts F and G of this part shall interfere

with any official of the Department of Labor performing an

investigation, inspection or law enforcement function pursuant to 8

U.S.C. 1288 or subpart F or G of this part. Any such interference shall

be a violation of the attestation and subparts F and G of this part,

and the Administrator may take such further actions as the

Administrator considers appropriate. (Note: Federal criminal statutes

prohibit certain interference with a Federal officer in the performance

of official duties. 18 U.S.C. 111 and 18 U.S.C. 1114.)

(d)( 1) An employer subject to subparts F and G of this part shall

at all times cooperate in administrative and enforcement proceedings.

No employer shall intimidate, threaten, restrain, coerce, blacklist,

discharge, retaliate, or in any manner discriminate against any person

because such person has:

(i) Filed a complaint or appeal under or related to section 258 of

the INA (8

[[Page 3970]]

U.S.C. 1288) or subpart F or G of this part;

(ii) Testified or is about to testify in any proceeding under or

related to section 258 of the INA (8 U.S.C. 1288) or subpart F or G of

this part;

(iii) Exercised or asserted on behalf of himself or herself or

others any right or protection afforded by section 258 of the INA (8

U.S.C. 1288) or subpart F or G of this part.

(iv) Consulted with an employee of a legal assistance program or an

attorney on matters related to section 258 of the Act or to subpart F

or G of this part or any other DOL regulation promulgated pursuant to 8

U.S.C. 1288.

(2) In the event of such intimidation or restraint as are described

in paragraph (d)(1) of this section, the conduct shall be a violation

of the attestation and subparts F and G of this part, and the

Administrator may take such further actions as the Administrator

considers appropriate.

(e) The Administrator shall, to the extent possible under existing

law, protect the confidentiality of any person who provides information

to the Department in confidence in the course of an investigation or

otherwise under subpart F or G of this part. However, confidentiality

will not be afforded to the complainant or to information provided by

the complainant.

Sec. ________.605 Complaints and investigative procedures.

(a) The Administrator, through an investigation, shall determine

whether a basis exists to make a finding that:

(1) An attesting employer has--

(i) Failed to meet conditions attested to; or

(ii) Misrepresented a material fact in an attestation.

(Note: Federal criminal statutes provide penalties of up to

$10,000 and/or imprisonment of up to 5 years for knowing and willful

submission of false statements to the Federal Government. 18 U.S.C.

1001; see also 18 U.S.C. 1546.); or

(2) In the case of an employer operating under the automated vessel

exception to the prohibition on utilizing alien crewmembers to perform

longshore activity(ies) at a U.S. port, the employer--

(i) Is utilizing alien crewmember(s) to perform longshore

activity(ies) at a port where the prevailing practice has not been to

use such workers for such activity(ies); or

(ii) Is utilizing alien crewmember(s) to perform longshore

activities:

(A) During a strike or lockout in the course of a labor dispute at

the U.S. port; and/or

(B) With intent or design to influence an election of a bargaining

representative for workers at the U.S. port; or

(3) An employer failed to comply in any other manner with the

provisions of subpart F or G of this part.

(b) Any aggrieved person or organization may file a complaint of a

violation of the provisions of subpart F or G of this part.

(1) No particular form of complaint is required, except that the

complaint shall be written or, if oral, shall be reduced to writing by

the Wage and Hour Division official who receives the complaint.

(2) The complaint shall set forth sufficient facts for the

Administrator to determine--

(i) Whether, in the case of an attesting employer, there is

reasonable cause to believe that particular part or parts of the

attestation or regulations have been violated; or

(ii) Whether, in the case of an employer claiming the automated

vessel exception, the preponderance of the evidence submitted by any

interested party shows that conditions exist that would require the

employer to file an attestation.

(3) The complaint may be submitted to any local Wage and Hour

Division office; the addresses of such offices are found in local

telephone directories. The office or person receiving such a complaint

shall refer it to the office of the Wage and Hour Division

administering the area in which the reported violation is alleged to

have occurred.

(c) The Administrator shall determine whether there is reasonable

cause to believe that the complaint warrants investigation. If the

Administrator determines that the complaint fails to present reasonable

cause for an investigation, the Administrator shall so notify the

complainant, who may submit a new complaint, with such additional

information as may be necessary. There shall be no hearing pursuant to

Sec. ________.625 for the Administrator's determination not to conduct

an investigation. If the Administrator determines that an investigation

on the complaint is warranted, the investigation shall be conducted and

a determination issued within 180 calendar days of the Administrator's

receipt of the complaint, or later for good cause shown.

(d) In conducting an investigation, the Administrator may consider

and make part of the investigation file any evidence or materials that

have been compiled in any previous investigation regarding the same or

a closely related matter.

(e) In conducting an investigation under an attestation, the

Administrator shall take into consideration the employer's burden to

provide facts and evidence to establish the matters asserted. In

conducting an investigation regarding an employer's eligibility for the

automated vessel exception, the Administrator shall not impose the

burden of proof on the employer, but shall consider all evidence from

any interested party in determining whether the employer is not

eligible for the exception.

(f) In an investigation regarding the use of alien crewmembers to

perform longshore activity(ies) in a U.S. port (whether by an attesting

employer or by an employer claiming the automated vessel exception),

the Administrator shall accept as conclusive proof a previous

Departmental determination, published in the Federal Register pursuant

to Sec. ________.670, establishing that such use of alien crewmembers

is not the prevailing practice for the activity(ies) and U.S. port at

issue. The Administrator shall give appropriate weight to a previous

Departmental determination published in the Federal Register pursuant

to Sec. ________.670, establishing that at the time of such

determination, such use of alien crewmembers was the prevailing

practice for the activity(ies) and U.S. port at issue.

(g) When an investigation has been conducted, the Administrator

shall, within the time period specified in paragraph (c) of this

section, issue a written determination as to whether a basis exists to

make a finding stated in paragraph (a) of this section. The

determination shall be issued and an opportunity for a hearing shall be

afforded in accordance with the procedures specified in

Sec. ________.625(d) of this part.

Sec. ________.610 Automated vessel exception to prohibition on

utilization of alien crewmember(s) to perform longshore activity(ies)

at a U.S. port.

(a) The Act establishes a rebuttable presumption that the

prevailing practice in U.S. ports is for automated vessels (i.e.,

vessels equipped with automated self- unloading conveyor belts or

vacuum-actuated systems) to use alien crewmembers to perform longshore

activity(ies) through the use of the self-unloading equipment. An

employer claiming the automated vessel exception does not have the

burden of establishing eligibility for the exception.

(b) In the event of a complaint asserting that an employer claiming

the automated vessel exception is not eligible for such exception, the

[[Page 3971]]

Administrator shall determine whether the preponderance of the evidence

submitted by any interested party shows that:

(1) It is not the prevailing practice at the U.S. port to use alien

crewmember(s) to perform the longshore activity(ies) through the use of

the self-unloading equipment; or

(2) The employer is using alien crewmembers to perform longshore

activity(ies)--

(i) During a strike or lockout in the course of a labor dispute at

the U.S. port; and/or

(ii) With intent or design to influence an election of a bargaining

representative for workers at the U.S. port.

(c) In making the prevailing practice determination required by

paragraph (b)(1) of this section, the Administrator shall determine

whether, in the 12-month period preceding the date of the

Administrator's receipt of the complaint, one of the following

conditions existed:

(1) Over fifty percent of the automated vessels docking at the port

used alien crewmembers for the activity (for purposes of this paragraph

(c)(1) of this section, a vessel shall be counted each time it docks at

the particular port); or

(2) Alien crewmembers made up over fifty percent of the workers who

performed the activity with respect to such automated vessels.

(d) An interested party, complaining that the automated vessel

exception is not applicable to a particular employer, shall provide to

the Administrator evidence such as:

(1) A written summary of a survey of the experience of masters of

automated vessels which entered the local port in the previous year,

describing the practice in the port as to the use of alien crewmembers;

(2) A letter, affidavit, or other written statement from an

appropriate local port authority regarding the use of alien crewmembers

to perform the longshore activity at the port in the previous year;

(3) Written statements from collective bargaining representatives

and/or shipping agents with direct knowledge of practices regarding the

use of alien crewmembers at the port in the previous year.

Sec. ________.615 Cease and desist order.

(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. ________.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

[[Page 3972]]

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

This text is long and has been trimmed here. Open the source document for the complete record.