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

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## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 19, 1995
- **Citation:** 60 FR 3950

## Text

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 th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-964. Public record. Not legal advice.