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

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

Employment Standards Administration (ESA) of the Department of Labor

(DOL or Department) are promulgating regulations to implement

amendments to existing regulations governing the filing and enforcement

of attestations by employers seeking to use alien crewmembers to

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

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

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

in certain circumstances, are required to submit 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 final rule promulgated in this document is

effective on October 7, 1996.

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 R. Thomas Shierling, Immigration Team, Office of Enforcement

Policy, Wage and Hour Division, Employment Standards Administration,

Department of Labor, Room S-3502, 200 Constitution Avenue, NW.,

Washington, DC 20210. Telephone: (202) 501-3884 (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-A was published in the

Federal Register with the interim final rule to implement the Alaska

exception on January 19, 1995 (60 FR 3950). 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.

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 in U.S. ports 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, 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

permitted alien crewmembers admitted with D-visas to perform longshore

work only 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 thirty

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 thirty

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'' 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

[[Page 46989]]

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,'' were removed from the Appendix

in the 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.

III. Analysis of Comments on the Interim Final Rule

Comments regarding the January 19, 1995, interim final rule were

received from 3 entities; a member of the general public through a U.S.

Senator; a law firm; and a Federal government agency. None of the 3

comments received concerned the same issue so each will be discussed in

turn.

A law firm submitted a comment on behalf of certain foreign

carriers involved in longshore operations in Alaska. The firm's comment

concerned the reporting and recordkeeping burden of the Department's

Attestation by Employers Using Alien Crewmembers for Longshore

Activities at Locations in the State of Alaska (Form ETA 9033-A).

The firm proposed that the Form ETA 9033-A be amended to allow

employers to file attestations with multiple validity periods and to

further amend the attestation to add a new box ``(e)'' to Item 8, to be

entitled ``Supplemental Attestation.'' If adopted, in the event of a

change in circumstances, an existing attestation would be photocopied,

box ``(e)'' checked, and a narrative description of the changed

circumstances attached, rather than the employer having to file a new

attestation.

With regard to the first suggestion, section 258(d)(4) of the INA

(8 U.S.C. 1288) provides that ``attestations filed under [the Alaska

exception] shall expire at the end of the 1-year period beginning on

the date the employer anticipates the longshore work to begin, as

specified in the attestations filed with the Secretary of Labor.'' We

believe that this statutory provision would preclude the Department

from incorporating the suggested change. Further, ETA, the agency which

will process such attestations, indicates that allowing multiple

validity periods to apply to a single attestation would be extremely

burdensome to administer. In the interim final rule, and continued here

in the final rule, the regulations provided that an employer may file a

single attestation for multiple locations in the State of Alaska,

unlike attestations under the prevailing practice exception which are

filed for a particular port. The Department believes this provision is

a reasonable accommodation to employers of alien crewmembers and feels

the suggested change would render this accommodation unpalatable.

The Department also opposes the second proposed change. First, it

is not clear what a ``change in circumstances'' means. The Department

believes that the example provided by the commenter, which concerned

the opening of a new dock or facility in a new location, should

necessitate filing of a new attestation by the employer. The fourth

attestation element under the INA, provision of notice, is based upon

actions taken by an employer to comply with the terms of the

attestation on or before the date the attestation is filed. Therefore,

if a new private dock opened in a new location, an employer should be

required to submit a new attestation, attesting that notice of filing

has been provided to the operator of the new private dock. The

requirement that an employer provide notice of filing and request

confirmation of coverage under the Longshore and Harbor Workers'

Compensation Act is the only pre-filing requirement contained in the

regulation, the other three attestation elements being prospective in

nature. Since an employer must provide the required notice to the

operator of the new private dock, whether the suggestion is adopted or

not, we believe that the burden incurred by filing a new attestation,

as compared to filing an amendment to an existing attestation with a

narrative description of the change, is a nominal one. It should be

noted that, as a matter of enforcement policy, an employer will

[[Page 46990]]

not be required to submit a new attestation in the event that a new

private dock opened in a previously disclosed location. In that event,

an employer will be considered to be in compliance as long as the

required notice is provided to the operator of the new private dock and

such is properly documented by the employer.

The second comment, filed by a member of the general public through

the office of U.S. Senator Ted Stevens (R-AK), concerned longshore work

performed by Greek and Russian vessels operating in the Aleutian

Islands off Alaska under the reciprocity exception. See 8 U.S.C.

1288(e). The Department has no role in administering the reciprocity

exception, which allows employers to use alien crewmembers to perform

longshore activities in U.S. ports if the vessel is registered in a

country which by law, regulation, or in practice does not prohibit such

activity by crewmembers aboard U.S. vessels, and nationals of such a

country own a majority of the ownership interest in the vessel.

The final comment received was from the Chief Counsel for Advocacy,

Small Business Administration, who expressed concern that the

regulations governing the Alaska exception may indeed have a

significant economic impact on a substantial number of small

businesses, contrary to the Department's certification under 5 U.S.C.

605(b). Further, the Chief Counsel questioned the Department's

authority to publish the regulation as an interim final rule without a

prior notice of proposed rulemaking.

As described above, due to a lack of flexibility in the remote

areas of Alaska under the pre-existing ``prevailing practice

exception'' to the general prohibition, representatives of the

longshoremen's unions and the carriers, working in concert with the

Alaskan Congressional delegation, enacted special provisions

recognizing the unique character of Alaskan sea ports. The statute was

a direct result of these negotiations between the affected parties.

Departmental officials worked closely with all relevant parties in

drafting the rule, both union and carrier representatives, including

meeting on two separate occasions to discuss implementation of the

statutory provisions.

Specific language in the statute prohibited employers from filing

attestations for locations in the State of Alaska under the pre-

existing prevailing practice exception, resulting in an adverse impact

on the Alaskan fishing industry and potential loss of jobs and revenue

for both U.S. workers and employers. Further, some employers may have

been encouraged by economic exigencies to utilize foreign crewmembers

in longshore work illegally or to reflag their vessels to qualify for

the ``reciprocity exception.'' Either of these actions by shippers

would have diminished employment opportunities for Alaskan workers

seeking longshore work, contrary to the purposes of the Coast Guard

Act. The Department received evidence from union representatives that

delay in implementing the Alaska exception would indeed have had an

adverse impact on the employment opportunities of Alaskan workers

seeking longshore work. Consequently, at the time, the Department, for

good cause, determined that the potential harm made it impracticable

and contrary to the public interest to delay implementation by

publishing the rule as a proposed rule.

The Department believes the program and the regulations will in

fact have a positive economic impact on small businesses such as

contract stevedoring companies. These firms will benefit from an

increase in their business opportunities which would not occur but for

the Department's regulations to implement the Alaska exception. The

purpose of the Alaska exception is to insure that, to the extent

possible, U.S. contract stevedoring companies and private dock

operators, some of which may be small businesses, are given a chance to

compete for jobs which would otherwise go to foreign nationals. The

only burden imposed by the regulations will fall upon foreign shippers

who seek to employ alien workers in longshore work on foreign-flagged

vessels which are registered in countries that do not afford similar

work opportunities for U.S. longshoremen.

Finally, it is noted that other than the Chief Counsel's letter and

despite the fact that the Department notified all relevant parties of

the publication of the interim final rule in the Federal Register, the

two comments described above were the only others received, neither of

which concerned the economic impact of the rule on small businesses.

This is a new program and we believe that the paperwork burden will

be reduced in subsequent years due to increased familiarity with the

provisions contained in the regulations. The Department is very

concerned about the reporting and record keeping burden on the

regulated community, including small businesses, and is fully committed

to reducing this burden where appropriate. In the instant case,

however, we believe that the reporting and record keeping requirements

under the Alaska exception and contained herein are required to

maintain the program's integrity and to effectively carry out the

Secretary's responsibilities in protecting the wages and working

conditions of U.S. workers under the INA.

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, 60 FR 3950 (January 19, 1995).

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.

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.

Adoption of the Joint Final Rule

Accordingly, the interim final rule amending 20 CFR part 655,

subparts F and G, and 29 CFR part 506, subparts F and G, which was

published at 60 FR 3950 on January 19, 1995, is adopted as a final rule

without change.

[[Page 46991]]

Authority: 8 U.S.C. 1288(c) and (d).

Signed at Washington, DC, this 23rd day of August, 1996.

Robert B. Reich,

Secretary of Labor.

[FR Doc. 96-22510 Filed 9-4-96; 8:45 am]

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