Department of Labor: 60 FED REG 3950

8/14/2019 Department of Labor: 60 FED REG 3950

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fed

era

lregister

3949

ThursdayJanuary 19, 1995

Part II

Department of LaborEmployment and Training Administration

Wage and Hour Division

20 CFR Part 655

29 CFR Part 506

Attestations by Employers Using AlienCrewmembers for Longshore Activities inU.S. Ports; Interim Final Rule


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3950 Federal Register / Vol. 60 , No. 12 / Thursday, January 19, 1995 / Rules and Regulat ions

DEPARTMENT OF LABOR

Employment and TrainingAdministration

20 CFR Part 655

RIN 1205AB03

Wage and Hour Division

29 CFR Part 506

RIN 1215AA90

Attestations by Employers Using AlienCrewmembers for Longshore Activitiesin U.S. Ports

AGENCIES: Employment and TrainingAdministration and Wage and HourDivision, Employment StandardsAdm inistration, Labor.

ACTION: Interim final ru le; request forcomments.

SUMMARY: The Employment andTraining Adm inistration (ETA) and theEmployment Standards Administration(ESA) of the Dep artmen t of Labor (DOLor Department) are promulgatingregulations to implement amend mentsto existing regulations governin g thefiling and enforcement of attestations byemp loyers seeking to use aliencrewmem bers to perform longshorework in the U.S. The amend men ts relateto emp loyers use of alien crewm embersto perform longshore work at locationsin th e State of Alaska. Under theImmigration an d Nationality Actemp loyers, in certain circum stances, are

required to su bmit these attestations toDOL in ord er to be allowed by theImmigration an d Naturalization Service(INS) to use alien crew members toperform sp ecified lon gshore activities atlocations in th e State of Alaska. Theattestation p rocess is adm inistered byETA, while comp laints andinvestigations regardin g the attestationsare hand led by ESA.

DATES:Effective Date: The interim finalrule promulgated in this document iseffective on February 21, 1995.

Comments: Written comments on theinterim final rule are in vited from

interested parties. Comm ents shall besubm itted by March 20, 1995.ADDRESSES: Submit comm ents to: DougRoss, Assistant Secretary, Employmen tand Training Adm inistration,Department of Labor, Room N4456,200 Constitution Avenue NW.,Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: On20 CFR part 655, subp art F, and 29 CFRpart 506, subp art F, contact Flora T.Richardson, Chief, Division of ForeignLabor Certifications, U.S. Employment

Service, Employment and TrainingAdm inistration, Departmen t of Labor,Room N4456, 200 Constitution Aven ueNW., Washington, DC 20210.Telephon e: (202) 2195263 (this is nota toll-free n um ber).

On 20 CFR part 655, subpart G, and29 CFR part 506, subp art G, contactSolomon Sugarman, Chief, Farm Labor

Programs, Wage and Hour Division,Employment Standards Administration,Department of Labor, Room S3502, 200Constitution Avenu e NW., Washington,DC 20210. Telephone: (202) 2197605(this is not a toll-free num ber).

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

The information collectionrequiremen ts of the Form ETA 9033Aun der the Alaska exception andcontained in this rule h ave beensubm itted to the Office of Managementand Budget (OMB) for clearance un der

the Paperw ork Reduction Act of 1980(44 U.S.C. 3501 et seq.) and have beenassigned OMB Control No. 12050352.The information collection requiremen tsof the Form ETA 9033 und er theprevailing p ractice exception, assignedOMB Control No. 12050309, remainun changed by this rulemaking. TheForm ETA 9033 was published in theFedera l Register with th e final rule toimplement the prevailing practiceexception on September 8, 1992 (57 FR40966).

The Employment and TrainingAdministration estimates that

emp loyers will be subm itting up to 350attestations per year un der the Alaskaexception. The public reporting burdenfor this collection of information isestimated to average 3 hou rs perrespon se, includ ing the time forreviewing instructions, searchingexisting information/ data sources,gathering and maintaining theinformation/data needed, an dcompleting and reviewing theattestation. It is likely that the bu rdenwill be considerably less in the secondand su bsequent years in w hich anemp loyer submits an attestation.

Written commen ts on the collection ofinformation requirements should besent to th e Office of Information andRegulatory Affairs, Office ofManagement and Bud get, Attention:Desk Officer for Employmen t andTraining Administration, Washington,DC 20503.

II. Backgroun d

The Coast Guard Auth orization Act of1993, Pub. L. 103206, 107 Stat. 2419(Coast Guard Act), was en acted onDecember 20, 1993. Among other th ings,

the Coast Guard Act amend ed section258 of the Immigration and NationalityAct (INA) (8 U.S.C. 1101 et seq.) whichplaces limitations on the performance oflongshore work by alien crewm embersin U.S. ports.

The loadin g and un loading of vesselshad traditionally been performed byU.S. longshore w orkers. However, until

passage of the Immigration Act of 1990(IMMACT 90), Pub. L. 10164 9, 104Stat. 4978, (November 29 , 1990), aliencrewmem bers had also been allowed byImmigration an d Natu ralization Service(INS) regulation to d o this kind of workin U.S. ports, because longshore workwas considered to be within the scopeof permitted emp loyment for aliencrewmem bers. The IMMACT 90 limitedthis practice in order to p rovide greaterprotection to U.S. longshore workers.

Prior to the Coast Guard Actsenactmen t, section 258 of the INAprohibited alien crewmembers admittedwith D-visas from performing longshorework except in four specific instances:(a) Where the vessels country ofregistration does n ot proh ibit U.S.crewmembers from performinglongshore work in th at countrys portsand n ationals of a country which doesnot p rohibit U.S. crewmem bers fromperforming longshore work in thatcoun trys ports h old a m ajority of theown ership in terest in the vessel; (b)wh ere there is in effect in a local portone or m ore collective bargainin gagreement(s), each covering at least 30percent of the longshore workers at aparticular port and each permitting the

activity to be p erformed by aliencrewmem bers; (c) wh ere there is nocollective bargaining agreemen tcovering at least 30 percent of thelongshore workers and an attestationhas been filed with th e Departmen twh ich states that the use of aliencrewmem bers to perform longshorework is permitted un der the p revailingpractice of the port, that the u se of aliencrewmem bers is not durin g a strike orlockout, that such use is not intended ordesigned to influen ce the election of acollective bargaining represen tative, andthat notice has been provided to

longshore workers at the port; and (d)wh ere the activity is performed with theuse of automated self-un loadingconveyor belts or vacuum -actuatedsystems;provided that, the Secretary ofLabor (Secretary) has not found that anattestation is required because it w as notthe p revailing practice to utilize aliencrewmem bers to perform the activity orbecause the activity was p erformeddu ring a strike or lockout or in ord er toinfluence th e election of a collectivebargaining rep resentative. For thispu rpose, the term longshore w ork


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3951Federal Register / Vol. 60 , No. 12 / Thursday, January 19, 1995 / Rules and Regulat ions

does not includ e the loading orun loading of hazardous cargo, asdetermin ed by the Secretary ofTransportation, for safety andenvironmental protection and noattestations w ere or are n ecessary for theloading and u nloadin g of such cargo.

The Department published finalregulations in the Federa l Register on

September 8, 1992, (57 FR 40966) toimp lement the prevailing practiceexception u nd er IMMACT 90. Thefishing ind ustry and th e carriers workedtogether to comply w ith the law byfiling the necessary attestations toqualify und er the prevailing practiceexception. The International Longshoreand Warehousemens Union respondedto protect th e jurisdiction of U.S.longshore workers by filing comp laintspursuant to the attestations and seekingcease and desist orders to halt theperformance of longshore work by thecarriers alien crewmem bers.

The basic problem was that theprevailing practice exception wasapp arently designed for established p ortareas. A lack of flexibility in the remoteareas of Alaska where th e longshorework needed to be performed, in somecases, prevented carriers fromcomplying with Departmentalregulations. As a result, even w herethere were n o U.S. longshore workersavailable for the particular employm ent,emp loyers in some of these remote areaswere proh ibited from performing thenecessary longshore work, resultin g inpotential adverse impacts on theAlaskan fishing industry including the

loss of American jobs. In order toremedy th e situation, Congressconsu lted with representatives of thelongshoremens unions and the carriersand enacted special provisionsrecognizing the un ique character ofAlaskan ports.

The Coast Guard Act amended theINA by establishing a new Alaskaexception to the general prohibition onthe p erforman ce of longshore work byalien crewmem bers in U.S. ports. TheAlaska exception p rovides that theprohibition d oes not apply wh ere thelongshore work is to be performed at a

particular location in the State of Alaskaand an attestation w ith accompanyingdocumentation has been filed by theemp loyer with the Departmen t of Labor.The INA provides, how ever, thatlongshore work con sisting of the u se ofan autom ated self-unloadin g conveyorbelt or vacuu m-actuated system on avessel shall continue to be governed bysection 258(c) of the INA (8 U.S.C.1288(c)), even at locations in the Stateof Alaska. If, however, it is d eterminedthat an attestation is required forlongshore work at locations in th e State

of Alaska consisting of the use ofautomated equipment, i.e., because theAdministrator has determined, pu rsuantto a complaint, that it is not theprevailing practice to u se aliencrewmem bers to perform the longshoreactivity(ies) through th e use of theautomated equipment, or was during astrike or lockout or intend ed to

influence an election of a bargainingrepresentative for workers in th e localport, or if the Admin istrator issues acease and d esist order against use of theautomated equipment without suchattestation, the requ ired attestation shallbe filed by the employer und er theAlaska exception and not un der theprevailing practice exception. Theamended INA provides that theprevailing practice exception no lon gerapp lies in case of longshore work to beperformed at a particular location in theState of Alaska. As a result, U.S. portsin th e State of Alaska which were

previously listed in App end ix A, U.S.Seaports, have been removed from theAppend ix in this interim final rule.

The Alaska exception is inten ded toprovid e a preference for hiring UnitedStates longshoremen over theemp loyers alien crewmem bers. Theemp loyer must attest that, before usingalien crewmen to perform the activityspecified in th e attestation, theemp loyer will make a bona fide requestfor and emp loy United States longshoreworkers wh o are qualified and availablein sufficient nu mbers from contractstevedoring companies and private dockoperators. The employer mu st also

provid e notice of filing the attestation tosuch contract stevedoring companiesand private dock operators, and to labororganizations recognized as exclusivebargainin g representatives of UnitedStates longshore workers. Finally, theemp loyer must attest that the u se ofalien crewmem bers to performlongshore work is not in tended ordesigned to in fluence the election of abargainin g representative for workers inthe State of Alaska.

The Coast Guard Act provides that th eSecretary of Labor shall p rescribe suchregulations as may be n ecessary to carry

out the amen dm ents to the INA. TheINA furth er provid es that attestationspreviously filed pursuant to theprevailing practice exception at section258(c) of the INA (8 U.S.C. 1288(c))wou ld not expire at the expiration oftheir respective validity period s butwou ld remain valid un til 60 days afterthe d ate of issuan ce of final regulationsby the Secretary. Absent a final ru le forattestations un der this program,employers are precluded from u singalien crewmem bers for longshoreactivity at a particular location in the

State of Alaska unless an em ployer hada valid attestation for the location on filewith ETA on the d ate of the Actsenactmen t. Thu s, even wh ere there areno qu alified United States longshoreworkers available at a particularlocation in th e State of Alaska, such anemployer is prohibited from utilizingalien crewmembers to perform the

necessary longshore work. This p rogramaffects a limited class of individu als andentities in Alaska. The Departmentconsulted w ith representatives of allrelevant parties in the developm ent ofthis interim final rule and , for goodcause, has determined th at issuan ce ofa prop osed rule is u nn ecessary. 5 U.S.C.553(b)(B).

Furth er, there is ongoing longshorework being p erformed off the coast ofAlaska in conn ection with the fishingind ustry. Since delay in the issuan ce ofan interim final rule precludesemployers from filing attestations in

Alaska in ord er to u se the Alaskaexception, such employers m ay beencouraged by econ omic exigencies toutilize foreign crewm embers inlongshore w ork illegally or to reflagtheir vessels to qualify for thereciprocity exception for vessels und erthe flags of countries wh ich perm it U.S.crewmem bers to perform longshorework. Either of these actions by shipp erswould diminish employmentopp ortun ities for Alaskan stevedores,contrary to the purp oses of the Act.Indeed, DOL has received in formationthat further delay in imp lementing theAlaska exception could adversely

impact the employment op portunitiesfor Alaskan workers seeking longshorework. The Departmen t, for good cause,has determined that this p otential harmmakes it impracticable and con trary tothe pu blic interest to delayimplementation by p ublishing the ruleas a prop osed r ule. 5 U.S.C. 553(b)(B).

Nevertheless, the Department is veryinterested in receiving commen ts on theinterim final rule. These comments willbe considered in the development of afinal rule.

III. Attestation Process an dRequirements

The regulations for the attestationprogram for employers u sing aliencrewmem bers for longshore work in theUnited States are publish ed at 20 CFRpart 655, subparts F and G, and 29 CFRpart 506, subp arts F and G, 57 FR 40966(September 8, 1992).

A. When and Wh ere to File

The regulations require th at, to beacceptable, any attestation u nd er theAlaska exception m ust be filed withETA at least 30 d ays prior to the first


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performance of longshore activity byalien crewmembers, or anytime up to 24hou rs before the first performance of theactivity if the delay could n ot have beenreasonably anticipated. An attestationmu st be filed only on ce per year forlocations at wh ich alien crewmemberswill be used . Therefore, the 30-dayfiling requirement app lies only to the

first performan ce of longshore w orkafter the attestation is filed. Subsequ entarrivals to the same location in th e Stateof Alaska in the same year d o notrequire that an add itional attestation befiled.

Und er the prevailing practiceexception, the regulations require that aseparate attestation be filed for each portat which the emp loyer intends to usealien crewmem bers to performlongshore work. The Department hasdetermined that, und er the Alaskaexception, it is approp riate to acceptattestations which contain multiple

locations. An attestation mu st be filedby each individual employer but mayapply to m ultiple vessels and multiplelocations within the State of Alaska. Forother States, the p revailing practiceexception is port-specific and th eemp loyer is required to attest that thereis no collective bargaining agreemen t inthe portcovering at least 30 percent ofthe longshore workers, and th at it is theprevailing practice in the p ortfor aliencrewmem bers to perform longshorework. There is no su ch p ort-specific orlocation-specific attestation element orother provision under the Alaskaexception.

The Department requires thatcrewmem ber attestations for locations inthe State of Alaska be subm itted to andaccepted by the Employment andTraining Ad min istration (ETA) regionaloffice in Seattle, Washin gton. Theaddress of the Seattle regional office islisted in the instructions for comp letingthe Form ETA 9033A.

ETA shall make available for p ublicexamination in Washin gton, DC, a list ofemp loyers which h ave filed attestations,and for each such em ployer, a copy ofthe em ployers attestation an daccompan ying documentation in a

timely mann er after the acceptance ofthe attestation.

B. Acceptance for Filing

In accepting an attestation for filing,the regulations require that theapp lication be filed w ith ETA at least 30days before the first performance of thelongshore activity (or anytime u p to 24hou rs before the first performance of theactivity, up on a showin g that theemployer could not have reasonablyanticipated th e need to file anattestation for that location at that time).

The term could not h ave reasonablyanticipated is intend ed to be a broad erand more flexible standard than u nderthe prevailing practice exception, wh ichperm its late filing only in th e event ofan un anticipated emergency.Depending on the particularcircumstances, delays occasioned byadverse weather cond itions, changes in

commercial requiremen ts, chan ges infish migration p atterns, or otherunforeseen circumstances may besufficient to file less than 30 d ays inadvance.

The regulations provide that theDepartment review an attestation onlyto ensure that it is comp leted properly,that it is accompan ied by the requireddocumentation specified in theregulations, and that the documentationis not, on its face, inconsistent with theattestation.

Level of Federal Review of Attestations

The Department has d etermined thatthe general approach to its review ofemployer attestations under theprevailing practice exception shallapp ly to attestations filed un der theAlaska exception. Th e Departmen t willreview an attestation to ensure th at ithas been filed at least 30 days prior tothe first performance of the longshoreactivity (or anytime u p to 24 hou rsbefore the first performan ce of theactivity, up on a showin g that theemployer could not have reasonablyanticipated th e need to file anattestation for that location at that time),that it is completed prop erly, that it has

the app ropriate accompanyingdocumentation, and that thedocu mentation is not, on its face,incon sistent with th e attestation. Inadd ition, the Departmen t will reviewattestations to d etermine th e followin g:(1) Whether the Ad min istrator, Wageand Hour Division, DOL, has ad visedETA that it has issued a cease and desistorder curren tly in effect that wouldaffect the attesting employer an dparticular location; (2) wheth er theAdm inistrator has advised ETA of adetermination that an employer hasmisrepresen ted or failed to comply w ith

an attestation previou sly submitted andaccepted for filing, requiring th eAttorney General to bar the emp loyerfrom entry to any U.S. port for up to oneyear; and (3) whether th e Admin istratorhas advised ETA that the employer hasfailed to comply with an y penalty orremedy assessed.

App eals Process

The regulations do not includ e anadm inistrative appeal process forattestations du ring the filing ph aseun der the Alaska exception. When an

attestation is return ed because it isuntimely, improperly completed, orlacking proper documentation, anemployer may resubmit anotherattestation to the Department.Attestations wh ich have been acceptedby ETA may be objected to by anaggrieved party through the comp laintprocess in subp art G, and proced ures for

investigation, hearing, and ap peal areprovided th erein. The Departmentbelieves that this app roach is consistentwith the statutes intent for astreamlined attestation filing processand a complaint-driven enforcementsystem for the statutes requirements.

C. Attestation Elemen ts

Bona-fide Request for United StatesLongshore Workers

An em ployer or its agent filing anattestation un der the Alaska exceptionmu st attest that it will make a bona fiderequest for dispatch of United States

longshore workers who, by industrystandard s in the State of Alaska,includ ing safety considerations, arequalified and available in su fficientnumbers to perform the longshoreactivity at the p articular time andlocation. Such requests must be directedto contract stevedoring compan ies andoperators of private docks at which th eemployer intends to u se longshoreworkers. Wherever two or more contractstevedoring companies have signed a

joint collective bargaining agreementwith a single qualified labororganization, the emp loyer need request

longshore workers from only one ofsuch contract stevedoring companies.Qualified labor organizations are thosewh ich have been recognized asexclusive bargaining representatives ofUnited States longshore workers withinthe m eaning of the National LaborRelations Act (29 U.S.C. 141 et seq.) andwh ich make available or intend to makeavailable longshore w orkers to theparticular location where the longshorework is to be performed . An employeris not required to request dispatch ofUnited States longshore w orkers fromcontract stevedoring companies orprivate dock operators which d o notmeet the requirem ents of section 32 ofthe Longshore and Harbor WorkersComp ens ation Act (33 U.S.C. 932) or, inthe case of contract stevedoringcompanies, which are not licensed to dobusiness in the State of Alaska.Evidence of coverage is a copy of theDOL Office of Workers Comp ensatio nPrograms (OWCP) Certificate ofCompliance, which is m aintained by thecontract stevedoring company or privatedock op erator. Further, a request fordispatch from a private dock operator


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need on ly be mad e for longshore workto be performed at that dock.

Employers are not required to requestdisp atch of United States longshoreworkers from any p arty which hasnotified the employer in w riting that itdoes not intend to dispatch workers tothe location at which lon gshore work isto be performed. If a party that has

provided such notice subsequentlyinforms the emp loyer in writing that itis prepared to provide w orkers, theemp loyers obligations to th at party torequest dispatch of, and em ployqualified United States longshoreworkers mad e available in su fficientnum bers, recommence 60 d ays from theemp loyers receipt of the n otice.

Employmen t of United States LongshoreWorkers

An em ployer or its agent mu st attestthat it will emp loy all United Stateslongshore workers dispatched inresponse to a request made un der thefirst attestation elemen t wh o arequalified and available in su fficientnum bers and who are needed to performthe lon gshore activity at the p articulartime and location attested to.

This attestation element also specifiesthat emp loyers will not be required tohire less than full work un its of UnitedStates longshore workers nor to provid eovernight accommodation s for theworkers. The regulations p rovide thatfull wo rk un it mean s the fullcomp lement of longshore workersneeded to perform the longshoreactivity, as determined by ind ustry

standard s in the State of Alaska,includ ing safety considerations. Wherethe makeu p of a full work u nit iscovered by on e or more collectivebargaining agreements in effect at thetime and location wh ere longshore workis to be performed, the provisions ofsuch agreements shall be deemed to bein conformance with industry standardsin th e State of Alaska. This elemen t alsostates the conditions un der wh ichemp loyers will be required to providetransportation from the point ofembarkation to the vessel on whichlongshore work is to be performed .Specifically, there is a thirty-minu tetravel time limit and a five-mile traveldistance limit except in Klawock/Craigand Wide Bay, Alaska, wh ere, due to theremoteness of these areas, the travellimits are extended to forty-five minutesand seven an d on e-half miles,respectively. Furth er, an emp loyer is notrequired to provide transp ortation, evenif the vessel is within the specified timeand distance limitations from the pointof embarkation, unless su rfacetransportation is available and su chtransportation m ay be safely

accomplished . If a vessel wherelongshore work is to be performed isbeyond the sp ecified time and distancelimitations from the point ofembarkation, the emp loyer is stillobligated to h ire any qu alified U.S.longshore worker wh o is capable ofgetting to the vessel wh ere the longshorework is to be performed at his or her

own exp ense, even though the specifiedtime and/ or distance limitations areexceeded, but is not required to providesuch transportation nor reimburse theworker for expenses incurred in gettingto and from the vessel.

Election

An em ployer filing an attestationun der the Alaska exception mu st attestthat the use of alien crewm embers toperform longshore activities will not beintended or designed to influence anelection of a bargaining representativefor workers in the State of Alaska.

NoticeLastly, an employer of alien

crewmem bers must attest that at thetime of filing the attestation, notice ofthe filing has been p rovided to: (1)Labor organizations wh ich have beenrecognized as exclusive bargainingrepresentatives of United Stateslongshore workers within the m eaningof the National Labor Relations Act (29U.S.C. 141 et seq.) and w hich makeavailable or intend to m ake availableworkers to the locations where theemp loyer is attesting that the longshorework is to be p erformed; (2) contract

stevedoring companies which arelicensed to do bu siness in the State ofAlaska, meet the requirem ents of section32 of the Longshore and HarborWorkers Compensation Act (33 U.S.C.932), and w hich emp loy or intend toemp loy United States longshore workersat those locations; and (3) operators ofprivate docks at which the emp loyerintend s to use longshore workers. Theoperators to whom provision of notice isrequired sh all also meet therequiremen ts of section 32 of theLongshore and Harbor WorkersCompensation Act (33 U.S.C. 932).

The required notices shall includ e acopy of the Form ETA 9033A, shallstate that the attestation withaccompanying d ocumentation has beenfiled an d is available at the Nationaloffice of ETA for review by in terestedparties, and shall explain wherecomp laints can be filed with resp ect toemp loyer attestations. Furth er, in therequired n otice, the emp loyer shallrequest a copy of the Certificate ofCompliance issued by the districtdir ector of the Office of WorkersCompen sation Programs un der section

37 of the Longshore and HarborWorkers Compensation Act (33 U.S.C.932) from con tract stevedoringcompanies and private dock operators.The em ployers obligations to requ estdispatch of and emp loy qualified UnitedStates longshore workers from any p artyshall commence upon receipt of theCertificate of Compliance.

Finally, the Departmen t periodicallyshall publish in the Federa l Register alist of employers wh o have submittedattestations un der the Alaska exception.

D. Au tom ated Vessel Exception

The INA provides that longshore workconsisting of the u se of an au tomatedself-unloadin g conveyor belt or vacuum-actuated system on a vessel shallcontinu e to be governed by theprevailing practice exception an dDepartmental regulations thereun der at20 CFR 655.520 and 29 CFR 506.520. If,how ever, it is determined th at anattestation is required for longshorework consisting of the use of automatedequipment, i.e., because theAdministrator has d etermined, pu rsuantto a complaint, that it is not theprevailing practice to use aliencrewmem bers to perform the longshoreactivity(ies) through the u se of theautomated equipm ent, or was during astrike or lockout or intend ed toinfluence an election of a bargainingrepresentative for workers in th e localport, or if the Ad ministrator issues acease and d esist order against use of theautomated equipm ent without suchattestation, the required attestation sh all

be filed by the employer un der theAlaska exception and not un der theprevailing practice exception. Th eamended INA provides that theprevailing practice exception n o longerapp lies in the case of longshore work tobe performed at a particular location inthe State of Alaska.

IV. Compla ints, Investigations, a ndDispositions

The INA provides that th e Secretaryshall establish comp laint, investigation,and hearing procedures and authorizesthe Secretary to issue cease and d esist

orders against employers. TheSecretarys enforcement respon sibilitiesare assigned to the Ad min istrator, Wageand Hour Division, of the DepartmentsEmployment Standards Administration(ESA).

A. Comp laint, Investigation, andHearing

The INA provides that th e existingprocess for the receipt, investigation,and d isposition of complaints at section258(c)(4) of the INA shall apply to theuse of alien crewmembers to p erform


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longshore work at locations in th e Stateof Alaska. Therefore, enforcement ofattestations filed un der the Alaskaexception will be conducted inaccordance with regulations curren tly inplace for attestations filed un der theprevailing practice exception.

Section 258(c)(4) of the INA requ iresthat the Secretary establish a system to

conduct investigations where acomp laint presents there is reasonablecause to believe that an attestingemp loyer failed to meet a conditionattested to or m isrepresented a m aterialfact in its attestation, or that a non -attesting emp loyer claiming theautomated vessel exception was notqualified for the exception becau se theperformance of the associated longshoreactivity does not p revail in th e port. Theregulations provide th at the Wage andHour Admin istrator may cond uctinvestigations of p otential violations ofthe law only pu rsuant to a complaint.

The in vestigative process is to becompleted and a determination issuedin a 180-day period , or a longer periodfor good cau se show n. An y aggrievedperson m ay file a comp laint.

The regulations provid e that, ininvestigating an attesting emp loyer, theAdministrator shall consider theemp loyers statutory burd en to presentand retain facts and eviden ce to showthe m atters attested to. The regulationsalso require that the employer cooperatein the investigation and take noretaliatory action against person s wh ofile comp laints, assist in th e

investigation, or participate in theadministrative proceedings.

B. Administrative Law Judge Hearingand Discretionary Review by theSecretary

Section 258(c)(4)(D) of th e INArequires that the Secretary provid einterested parties an opportu nity for ahearing within 60 days of the date of theinvestigative determin ation. Because ofthis comp ressed timeframe, theregulations require that a request forhearing be filed d irectly with the ChiefAdm inistrative Law Judge no later than15 days from the d ate of theAdm inistrators determination. Further,the regulations incorporate the statutoryimp osition of the burd en of proof on theattesting emp loyer to establish th e truthof the attestation elements.

An opportunity for discretionaryreview by th e Secretary is afforded bythe regulations, with short dead lines inaccordance with th e statutory intent forexpedited dispositions. Any interestedparty may request such review, and theSecretary shall determin e what matters,if any, will be reviewed.

C. Cease an d Desist Order

Section 258(c)(4)(C) of th e INAauth orizes the Secretary, at the requestof a complainant, to issue a cease anddesist order against an attestingemp loyer or against a non -attestingemp loyer claiming the autom ated vesselexception. The comp lainants requestmay be made w hen th e Secretary hasdetermin ed there is reasonable cause tocond uct an in vestigation. The INAspecifies that, if a complainan t requestssuch an order, the employer will benotified and given 14 d ays within wh ichto respond . The Secretary is thenrequired to d etermine w hether thepreponderance of the evidencesubmitted sup ports the complainantsposition an d, if it does, to order that theemp loyer cease and desist theactivity(ies) at issue. The order rem ainsin effect throughou t the hearing processfor the attesting emp loyer; for the non -attesting employer claiming the

automated vessel exception, the orderremains in effect throughout the hearin gprocess u nless ETA accepts for filing anattestation from th at employer for theactivity and location w hich th e ceaseand desist order affects.

The regulations provide that thecomp lainant wh o desires a cease anddesist order must submit two comp letecopies of the request and the eviden ceto substan tiate the allegations (thesecond cop y of the request will beprovid ed to the employer). TheAdm inistrators notice to the emp loyershall includ e copies of the complain t,

the cease and d esist order request andsupp orting evidence, and any otherpertinen t evidence from an investigationof the same or a closely related matterwhich the Adm inistrator incorporatesinto the record. The emp loyer, thu s, willbe fully informed as to th e allegationsand evid ence. The Admin istratorsnotice also shall specify that, du ring the14-day response period sp ecified by theINA, the Adm inistrator will provide, atthe emp loyers request, an opp ortun ityfor a meeting with a Wage and HourDivision official to give the employersviews on the evidence and issues. This

meeting shall be informal, shall not besubject to any proced ural rules, andshall include the comp lainant if thecomplainant so desires.

The regulations specify that the ceaseand desist order will remain in effectun less and until the Adm inistratorwithdraws the order on the ground th atthe emp loyers position is determin ed tohave been correct or a finaldetermination is m ade wh ich results inresolution of the matter un derinvestigation, orin the case of theautomated vessel exceptionan

attestation relating to the longshoreactivity is accep ted for filing by ETA.

A comp lainants request for a ceaseand d esist order und er the Alaskaexception sh all specify the location(s) atissue. The regulations p rovide that theSecretary is required to d eterminewhether the p reponderance of theevidence submitted sup ports the

complain ants position an d, if it does, toorder that the employer cease and d esistthe activity (ies) at the locatio n(s) atissue. Since an attestation un der theAlaska exception may be valid formu ltiple locations, a cease and d esistorder p ertaining to a particular locationor locations shall not p rejud ice thevalidity of the attestation w ith respect tothe p erformance of longshore activitieswh ich are covered by the attestation, butwhich are not at issue un der the ceaseand desist order.

D. Penalties

A violation of section 258 of the INAor the regulations thereund er by anattesting employer may result in th eimposition of admin istrativeremedy(ies), such as a civil moneypen alty not to exceed $5,000 per aliencrewmem ber illegally employed. Uponnotice of the violation(s), the AttorneyGeneral thereafter shall not p ermit thevessels own ed or chartered by theemployer to enter an y port of the U.S.du ring a period of up to one year.Add itionally, ETA will be n otified an dshall thereafter not accept anyattestation from the employer for anyactivity(ies) at any U.S. port for one year(or for a shorter p eriod, if such p eriodis specified by INS).

Upon the Departments finaldetermination that an employerimproperly claimed the automatedvessel exemption, the Attorn ey Generalwill be notified and shall thereafterrequire th at, before usin g aliencrewmembers, the emp loyer mu st haveon file with ETA an attestation for theactivity(ies) and the p ort at issue. Forlocations in th e State of Alaska such anattestation shall be made und er theAlaska exception on Form ETA 9033A.For other states, the attestation shall be

made under the prevailing practiceexception on Form ETA 9033.

V. Enforcement Matters

A. Clarification of Jud icial Review

To ensure th at the regulationcomports with recent supreme courtcaselaw,

.650 of the ru le has

been amended to provide that a partymay n ot seek jud icial review of anadmin istrative law judges d ecisionuntil such p arty has exhausted alladministrative remedies.


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B. Debarm ent T imin g (Notice toAttorney General)

The statute requ ires that the Secretaryno tify the Attorn ey General (AG) of anemp loyers violation(s). Pursu ant to

.665(b) of the Interim Final ru le,

the Adm inistrator is required to n otifythe AG and ETA of the final

determin ation of a violation by anattesting emp loyer or of the ineligibilityof an employer for the automated vesselexception, up on the earliest of thefollowin g events:

(1) Where the Adm inistrator determinesthat th ere is a basis for a find ing of violationby an attesting employer or a finding ofnonapp licability of the automated vesselexception, and no tim ely request for hearingis made pursuant to .630 of this p art;

(2) Where, after a hea ring, theadmin istrative law judge issues a decisionand order finding a violation by an attestingemployer or finding inapplicable theautomated vessel exception; or

(3) Where the administrative law judgefinds that there was n o violation by anattesting employer or that the automatedvessel exception does apply, and th eSecretary, upon review, issues a d ecisionpursuan t to

.655 of this part, holding

that a violation was comm itted by anattesting employer or holding that theautomated vessel exception does not apply.

This regulatory constru ct creates asituation where the Administratornotifies the AG of a violation up on afinding of a violation or upon a find ingthat the autom ated vessel exceptiondoes n ot apply by an ALJ, even thou ghsuch finding subsequently may be

app ealed to the Secretary andeventually overturned . An attestingemp loyer thus could be debarred after afinding of violation by an ALJ, servepart or all of the debarm ent period , andsubsequen tly be foun d by the Secretarynot to have comm itted a violation.Similarly, if the ALJ finds that theemp loyer is ineligible for the automatedvessel exception, the emp loyer could berequired n ot to use alien crewmembersto perform longshore activities at thespecified port w ithout first filing anattestation with ETA, and subsequ entlybe found to be eligible for the au tomatedvessel exception by the Secretary.

To correct this anomaly,

.665(b) has been amend ed to

require n otification to the AG after afinding of a violation or a finding ofnon app licability of the autom ated vesselexception by an ALJ only un der thefollowin g circumstances: (a) where th ereis no app eal from the ALJs findin g tothe Secretary; (b) wh ere, upon app eal,the Secretary declines to review theALJs finding; and (c) where, uponreview , the Secr etary affirms th e ALJsfinding.

VI. Summar y

The Department welcomes commentson th ese and any other issues add ressedin the regulations and on any issues notadd ressed that commenters believe needto be addressed.

Regulatory Im pact and A dm inistrativeProcedure

E.O. 12866:

In accordance with Executive Order12866, the Departmen t of Labor hasdetermin ed that this is not a significantregulatory action as d efined in section3(f) of the Ord er.

Regulatory Flexibility Act:

The Departmen t of Labor has notifiedthe Chief Counsel for Advocacy, SmallBusiness Adm inistration, and made th ecertification pu rsuant to the RegulatoryFlexibility Act a t 5 U.S.C. 605(b), thatthe ru le does not h ave a significanteconomic imp act on a substantial

nu mber of small entities.Nevertheless, interested parties are

requested to subm it, as part of theircommen ts on this rule, information onthe poten tial econom ic impact of therule.

Absent a final ru le for attestationsunder this program, employers arepreclud ed from using aliencrewmem bers for longshore activity at aparticular location in the State of Alaskaun less the emp loyer had a validattestation for the location on file withETA on the date of the Coast GuardActs enactment. This program affects a

limited class of ind ividuals and entitiesin Alaska. The Department consu ltedwith representatives of all relevantparties in the developm ent of thisinterim final rule and , for good cause,has determin ed that issuance of aprop osed ru le is unn ecessary. 5 U.S.C.553(b)(B).

Further, there is ongoing longshorework bein g performed off the coast ofAlaska in conn ection with the fishingind ustry. Since delay in the issuance ofan interim final rule precludesemp loyers from filing attestations inAlaska in order to use th e Alaskaexception, such em ployers may beencou raged by econom ic exigencies toutilize foreign crewmem bers inlongshore w ork illegally or to reflagtheir vessels to qu alify for thereciprocity exception for vessels un derthe flags of countries which perm it U.S.crewmem bers to perform longshorework. Either of these actions by ship perswould diminish employmentopp ortun ities for Alaskan stevedores,contrary to the pu rposes of the Act.Indeed, DOL has received in formationthat further delay in implementing the

Alaska exception could adverselyimpact the employment op portunitiesfor Alaskan workers seeking longshorework. The Departmen t, for good cause,has determined that this p otential harmmakes it impracticable and con trary tothe pu blic interest to delayimplementation by p ublishing the ruleas a prop osed r ule. 5 U.S.C. 553(b)(B).

Nevertheless, the Department is veryinterested in receiving commen ts on theinterim final rule. These comments willbe considered in the development of afinal rule.

Catalog of Federal Domestic AssistanceNumber

This program is not listed in theCatalog of Federal Domestic Assistance.

List Of Subjects

20 CFR Part 655

Adm inistrative practice andprocedu re, Agriculture, Aliens,

Crewmembers, Employment,Enforcement, Fashion Models, Forestand Forest Products, Guam, Healthprofessions, Imm igration, Labor,Longshore work, Migrant labor, Nurse,Penalties, Registered nu rse, Reportingand recordkeeping requirements,Specialty occupation, Stud ents, Wages.

29 CFR Part 506

Adm inistrative practice andprocedu res, Aliens, Crewmem bers,Employmen t, Enforcement,Immigration, Labor, Longshore w ork,Penalties, Reporting and recordkeepingrequirements.

Text of the Joint Interim Final Ru le

For the reasons set forth in thecommon preamble, the text of the jointinterim final rule as adop ted by ETAand the Wage and Hou r Division, ESA,and in this document appears below:

Subpart FAttestations by EmployersUsing Alien Crewmembers for LongshoreActivities in U.S. Ports

General Provisions

Sec.

.500 Purpose, procedure andapplicability of subparts F and G of thispart.

.501 Overview of responsibilities. .5 02 Defin it io ns .

.510 Employer attestations .

.520 Special provisions regard ingautomated vessels.

Alaska Exception

.530 Special provisions regarding the

performance of longshore activities atlocations in the State of Alaska.

.531 Who may submit attestations forlocations in Alaska?

.5 32 Wh ere an d wh en sh o uld

attestations be submitted for locations inAlaska?


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.533 What should be submitted for

locations in Alaska?

.534 The first attestation element forlocations in Alaska: Bona fide request fordispatch of United States longshoreworkers.

.535 The second at tes tat ion elementfor locations in Alaska: Employmen t ofUnited States longshore workers.

.536 The th ird at tes tat ion element forlocations in Alaska: No intention ordesign to influence bargainingrepresentative election.

.537 The fourth at tes tat ion element

for locations in Alaska: Notice of filing.

.538 Actions on at testations

submitted for filing for locations inAlaska.

.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

.5 50 Pu bl ic access .Append ix A to Subpart FU.S. Seaports

Subpar t GEnforcement of the LimitationsImposed on Employers Using AlienCrewmembers for Longshore Activities inU.S. Ports

Sec.

.600 Enforcement au thor ity of

Administrator, Wage and Hour Division.

.605 Complain ts and investigative

procedures.

.610 Automated vessel exception to

prohibition on u tilization of aliencrewmember(s) to perform longshoreactivity(ies) at a U.S. port.

.615 Cease and desis t order .

.620 Civil money penalt ies and other

remedies.

.625 Writ ten notice, service and

Federal Register publication ofAdministrators d etermination.

.630 Request for hear ing.

.635 Rules of practice for

admin istrative law judge proceedings.

.640 Service and computation of

time.

.645 Adminis trat ive law judge

proceedings.

.650 Decis ion and order of admin istrative law judge.

.655 Secretarys review of

admin istrative law judges d ecision.

.660 Adminis trat ive record .

.665 Notice to the Attorney Generaland the Employment and TrainingAdministration.

.670

Federal Register notice of determinationof prevailing practice.

.675 Non-applicability of the Equal

Access to Justice Act.

Subpart FAttestations by EmployersUsing Alien Crewmembers forLongshore Activities in U.S. Ports

General Provisions

.500 Purpose , procedure andapp licability of subparts F and G of this

part.

(a) Purpose. (1) Section 2 58 of theImmi gration an d Nation ality Act (Act)prohibits nonimmigrant aliencrewmembers admitted to the UnitedStates on D-visas from performinglongshore work at U.S. ports except infive specific instances:

(i) Where th e vessels coun try ofregistration does n ot proh ibit U.S.crewmembers from performinglongshore work in th at countrys ports

and nationals of a coun try (or countries)which does not prohibit U.S.crewmembers from performinglongshore work in th at countrys portshold a majority of the own ershipinterest in the vessel, as determined bythe Secretary of State (henceforthreferred to as th e recip rocityexception);

(ii) Wher e there is in effect in a localport on e or more collective bargainin gagreement(s), each covering at leastthirty percent of the longshore w orkers,and each perm itting the activity to beperformed u nder th e terms of such

agreement(s);(iii) Where there is no collectivebargainin g agreement covering at leastthirty percent of the longshore workersat the particular port and an attestationwith accompanying documentation hasbeen filed with the Department of Laborattesting that, amon g other thin gs, theuse of alien crewmembers to p erform aparticular activity of longshore w ork ispermitted under the prevailing practiceof the particular p ort (henceforthreferred to as the prevailing practiceexception);

(iv) Where the lon gshore work is to beperformed at a particular location in theState of Alaska and an attestation withaccompanying d ocumentation has beenfiled w ith the Department of Laborattesting that, amon g other thin gs,before using alien crewm embers toperform the activity specified in th eattestation, the emp loyer will make abona fide request for and em ploy UnitedStates longshore workers wh o arequalified and available in su fficientnumbers from contract stevedoringcomp anies, labor organizationsrecognized as exclusive bargaining

representatives of United Stateslongshore workers, and private dockoperators (henceforth referred to as th eAlaska exception); or

(v) Where the lon gshore workinvolves an automated self-unloadingconveyor belt or vacuum -actuatedsystem on a vessel and theAdministrator has not previously

determin ed that an attestation mu st befiled p ursu ant to this p art as a basis forperforming those functions (hen ceforthreferred to as the automated vesselexception).

(2) The term lon gshore w ork doesnot include the loading or unloading ofhazardou s cargo, as determined by theSecretary of Transportation, for safetyand environmental protection. TheDepartment of Justice, through theImmigration an d Natu ralization Service(INS), determin es wheth er an emp loyermay use alien crewm embers forlongshore work at U.S. ports. In those

cases where an emp loyer must file anattestation in ord er to perform suchwork, the Departmen t of Labor shall beresponsible for accepting the filing ofsuch attestations. Subpart F of this partsets forth th e proced ure for filingattestations with th e Departmen t ofLabor for employers prop osing to usealien crewmembers for longshore workat U.S. ports und er the prevailingpractice exception, the Alaskaexception, and wh ere it has beendetermin ed that an attestation isrequired und er the automated vesselexception listed in paragraph (a)(1)(iv)

of this section. Subpart G of this partsets forth complain t, investigation, andpen alty provisions with respect to suchattestations.

(b) Procedure. (1) Und er theprevailing practice exception in sec.258(c) of the Act, and in th ose caseswhere it has been determined that anattestation is required un der theautomated vessel exception forlongshore work to be performed atlocations other than in th e State ofAlaska, the p rocedure in volves filing anattestation w ith the Department of Laborattesting th at:

(i) The u se of alien crewm embers fora particular activity of longshore w ork isthe prevailing practice at the particularport;

(ii) The use of alien crewm embers isnot du ring a strike or lockout nordesigned to influen ce the election of acollective bargaining rep resentative; and

(iii) Notice of the attestation has beenprovided to the bargainingrepresentative of longshore workers inthe local port, or, where there is non e,notice has been provided to longshoreworkers emp loyed at the local port.


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(2) Und er the autom ated vesselexception in sec. 258(c) of the Act, n oattestation is required in cases wherelongshore activity consists of the u se ofan autom ated self-unloadin g conveyorbelt or vacuu m-actuated system on avessel. The legislation creates arebuttable presumption that the use ofalien crewmem bers for the operation of

such automated systems is theprevailing practice. In ord er toovercome such presumption, it mu st beshown by the preponderance of theevidence subm itted by any interestedparty, that the use of alien crewmem bersfor such activity is not the prevailingpractice at the particular p ort, that it isdu ring a strike or lockout, or that it isintended or designed to influence anelection of a bargaining representativefor workers in the local port.

(3) Und er the Alaska exception in sec.258(d) of the Act, and in th ose caseswhere it has been determined that an

attestation is required un der theautomated vessel exception consistingof the u se of such equ ipmen t forlongshore work to be performed in theState of Alaska, the p rocedure in volvesfiling an attestation w ith the Departmen tof Labor attestin g that:

(i) The emp loyer will make a bonafide request for United States longshoreworkers wh o are qualified and availablein sufficient nu mbers to perform theactivity at the particular time an dlocation from the p arties to wh omnotice has been provided un derpar agraph (b)(3)(iv) (B) and (C) of thissection, except that:

(A) Wherever two or m ore contractstevedoring companies which meet therequiremen ts of section 32 of theLongshore and Harbor WorkersCompensation Act (33 U.S.C. 932) havesigned a joint collective bargainingagreement w ith a single labororganization recognized as an exclusivebargaining rep resentative of UnitedStates longshore workers within th emeanin g of the National Labor RelationsAct (29 U.S.C. 141 et seq.), the em ployermay request longshore w orkers fromonly one such contract stevedoringcompany, and

(B) A request for lon gshore workers toan op erator of a private dock may bemad e only for longshore work to beperformed at that dock and only if theoperator meets the requirements ofsection 32 of the Longshore and HarborWorkers Compensation Act (33 U.S.C.932);

(ii) The emp loyer will employ allUnited States longshore workers madeavailable in respon se to the requestmad e pu rsuan t to paragraph (b)(3)(i) ofthis section wh o are qualified andavailable in sufficient nu mbers and w ho

are needed to perform the longshoreactivity at the particular time an dlocation attested to;

(iii) The use of alien crewmem bers forsuch activity is not intend ed ordesigned to influence and election of abargainin g representative for workers inthe State of Alaska; and

(iv) Notice of the attestation has been

provided to:(A) Labor organizations wh ich h ave

been recognized as exclusive bargainingrepresentatives of United Stateslongshore workers within the m eaningof the National Labor Relations Act (29U.S.C. 141 et seq.) and w hich makeavailable or intend to m ake availableworkers to the particular location wherethe longshore work is to be performed;

(B) Contract stevedoring comp anieswhich emp loy or intend to employUnited States longshore workers at thatlocation; and

(C) Operators of private docks at

which the employer will use longshoreworkers.(c)Applicability. Subp arts F and G of

this part apply to all employers whoseek to employ alien crewm embers forlongshore work at U.S. ports un der theprevailing practice exception, to allemp loyers who seek to employ aliencrewmem bers for longshore work atlocations in the State of Alaska und erthe Alaska exception, to all emp loyersclaiming the automated vesselexception, and to th ose cases wh ere ithas been determin ed that an attestationis required u nder th e automated vesselexception.

.501 Overview ofresponsibilities.

This section provid es a context for theattestation process, to facilitateun derstanding by emp loyers that mayseek to employ alien crewm embers forlongshore work u nder the prevailingpractice exception, un der the Alaskaexception, and in th ose cases where anattestation is necessary und er theautomated vessel exception.

(a)Depa rtmen t of Laborsresponsibilities. The United StatesDepartment of Labor (DOL) administers

the attestation p rocess. Within DOL, theEmployment and TrainingAdm inistration (ETA) shall haverespon sibility for setting up andoperating the attestation process; theEmployment StandardsAdm inistrations Wage and Hou rDivision sh all be respon sible forinvestigating and resolving anycomp laints filed concerning suchattestations.

(b)Employer attestationresponsibilities. (1) Each employerseeking to use alien crewm embers for

longshore work at a local U.S. portpu rsuant to the prevailing practiceexception or wh ere an attestation isrequired und er the automated vesselexception for longshore work to beperformed at locations other than in th eState of Alaska shall, as the first step,subm it an attestation on Form ETA9033, as described in

.510 of

this p art, to ETA at the ad dress set forthat

.510(b) of this p art. If ETA

accepts the attestation for filing,pursuant to

.510 of this part,ETA shall return the cover form of theaccepted attestation to th e employer,and , at the same time, shall providenotice of the filing to th e Immigrationand Naturalization Service (INS) officehaving jurisdiction over the port wh erelongshore work will be performed.

(2) Each emp loyer seeking to use aliencrewmem bers for longshore work at aparticular location in the State of Alaskapu rsuant to the Alaska exception or

where an attestation is required underthe autom ated vessel exception forlongshore work to be performed at aparticular location in Alaska shallsubm it, as a first step, an attestation onForm ETA 9033A, as described in

.533 of this part, to ETA at the

address of the Seattle regional office asset forth at

.532 of this part.The address appears in the instructionsto Form ETA 9033A. ETA shall returnthe cover form of the acceptedattestation to the emp loyer, and, at thesame time, shall provide n otice of thefiling to the INS office hav ing

jurisd iction over the location wh ere

longshore work will be performed.(c) Complaints. Complaints

concerning misrepresentation in theattestation, failure of the emp loyer tocarry out the term s of the attestation, orcomplain ts that an employer is requiredto file an attestation u nd er theautomated vessel exception, may befiled w ith the Wage and Hou r Division,according to the proced ures set forth insubp art G of this part. Complaints ofmisrepresentation may includeassertions that an emp loyer has attestedto the use of alien crewmem bers onlyfor a particular activity of longshore

work and h as thereafter used such aliencrewmem bers for another activity oflongshore w ork. If the Divisiondetermines that the complaint p resentsreasonable cause to warrant aninvestigation, the Division sh all theninvestigate, and , where app ropriate,after an op portun ity for a hearing, assesssanctions and pen alties. Subp art G ofthis part further provid es that interestedparties may obtain an ad ministrativelaw jud ge hearing on the Divisionsdetermin ation after an in vestigation andmay seek th e Secretarys review of the


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adm inistrative law judges decision.Subp art G of this part also provides thata complainant may request that theWage and Hou r Admin istrator issue acease and desist order in the case ofeither alleged violation(s) of anattestation or lon gshore work by aliencrewmem ber(s) emp loyed by anemp loyer allegedly n ot qualified for the

claimed automated vessel exception.Upon the receipt of such a request, theDivision shall n otify the emp loyer,provide an op portunity for a responseand an informal meeting, and then ruleon the requ est, wh ich shall be grantedif the prep ond erance of the evidencesubmitted supp orts the complainantsposition.

.502 Definitions.

For the purp oses of subparts F and Gof this part:

Accepted for filing means that aprop erly completed attestation on FormETA 9033, includ ing accomp anyin gdocu men tation for each of therequirements in

.510 (d)

throu gh (f) of this p art, or a properlycomp leted attestation on Form ETA9033A, including accompanyingdocumentation for the requirement in

.537 of this part in th e case of

an attestation un der the Alaskaexception, submitted by the emp loyer orits designated agent or representativehas been received and filed by theEmployment and TrainingAdm inistration of the Department ofLabor (DOL). (Unaccep table attestation sun der the prevailing practice exception

are described at .510(g)(2) ofthis p art. Unacceptable attestationsun der the Alaska exception aredescribed at

.538(b) of this

part.)Actan d INA mean th e Immigration

and Nation ality Act, as amend ed, 8U.S.C. 1101 et seq.

Activity means an y activity relating toloading cargo; unloadin g cargo;operation of cargo-related equip men t; orhan dlin g of mooring lines on the dockwh en a vessel is mad e fast or let go.

Adm inistrative law judge means anofficial appointed pu rsuant to 5 U.S.C.

3105.Administratormeans theAdm inistrator of the Wage and HourDivision, Employment StandardsAdm inistration, Department of Labor, orsuch au thorized representatives as maybe designated to perform any of thefunctions of the Administrator undersubp arts F and G of this part.

Attestation means documentssubm itted by an employer attesting toand p roviding accompanyingdocumentation to show that, under theprevailing practice exception, th e use of

alien crewmem bers for a particularactivity of longshore work at a particularU.S. port is the prevailing practice, andis not du ring a strike or lockout norintend ed to influence an election of abargainin g representative for workers;and that notice of the attestation hasbeen provid ed to the bargainingrepresentative, or, wh ere there is none,

to the longshore workers at the localport. Und er the Alaska exception, suchdocuments shall show that, before usingalien crewmen to perform longshorework, the emp loyer will make bona fiderequests for dispatch of United Stateslongshore workers w ho are qualifiedand available in sufficient nu mbers andthat the employer will employ all suchUnited States longshore workers inrespon se to such a request for dispatch;that the use of alien crewm embers is notintended or designed to influence anelection of a bargaining representativefor workers in the State of Alaska; and

that n otice of the attestation has beenprovid ed to labor organizationsrecognized as exclusive bargainingrepresentatives of United Stateslongshore workers, contract stevedoringcomp anies, and op erators of privatedocks at which the emp loyer will uselongshore workers.

Attesting em ployermeans anemp loyer who h as filed an attestation.

Attorney General means the chiefofficial of the U .S. Depar tmen t of Justiceor th e Attorney Generals d esignee.

Automated vessel means a vesselequipped with an automated self-

unloading conveyor belt or vacuum-actuated system wh ich is utilized forloading or un loading cargo between thevessel and the dock.

Certifying Officermeans a Departmentof Labor official who makesdeterminations about wh ether or not toaccept attestations:

(1) A regional Certifying Officerdesignated by a Regional Admin istrator,Employment and TrainingAdm inistration (RA) makes suchdetermin ations in a regional office of theDepartment;

(2) A nation al Certifying Officermakes such determinations in th enational office of the USES.

Chief, Division of Foreign LaborCertifications, US ES means the chiefofficial of the Division of Foreign LaborCertifications with in th e United StatesEmploymen t Service, Emp loyment andTraining Admin istration, Department ofLabor, or the designee of the Chief,Division of Foreign Labor Certifications,USES.

Chief Ad m inistrative Law Jud gemean s the ch ief official of the Office ofthe Ad ministrative Law Jud ges of the

Department of Labor or the ChiefAdm inistrative Law Judges d esignee.

Contract stevedoring com pan y meansa stevedoring company wh ich islicensed to do busin ess in the State ofAlaska and w hich meets therequiremen ts of section 32 of theLongshore an d Harbor WorkersCompensation Act (33 U.S.C. 932).

Crewmembermeans anynonimm igrant alien admitted to theUnited States to perform services und ersec. 101(a)(15)(D)(i) of the Act (8 U.S.C.1101(a)(15)(D)(i)).

Date of filin g means the date anattestation is accepted for filing by ETA.

Departmentan d DOL mean theUnited States Departmen t of Labor.

Directormeans the ch ief official of theUnited States Employmen t Service(USES), Employmen t and TrainingAdm inistration, Department of Labor, orthe Directors designee.

Division means the Wage and HourDivision of the Emp loyment Stand ardsAdm inistration, DOL.

Employermeans a p erson, firm,corporation, or other association ororganization, wh ich suffers or permits,or prop oses to suffer or perm it, aliencrewmem bers to perform longshorework at a port w ithin th e U.S. Forpu rposes of

.530 through

.541, wh ich govern the

performance of lon gshore activities byalien crewmembers under the Alaskaexception, employer includes anyagent or rep resentative designated bythe employer.

Em ployment an d T raining

Administration (ETA) means the agencywithin the Departmen t of Labor (DOL)which includes the United StatesEmployment Service (USES).

Em ployment S tandardsAdministration (ESA) means the agencywithin the Departmen t of Labor (DOL)which includes the Wage and HourDivision.

Im m igration an d N aturalizationService (INS) means the component ofthe Department of Justice wh ich makesthe determination u nd er the Act onwh ether an emp loyer of aliencrewmembers may use such

crewmem bers for longshore work at aU.S. port.Lockoutmeans a labor dispute

involving a work stoppage, wherein anemployer withholds w ork from itsemp loyees in order to gain a concessionfrom th em.

Longsh ore workmeans an y activity(except safety and en vironmen talprotection work as described in sec.258(b)(2) of the Act) relatin g to theloading or u nloadin g of cargo, theoperation of cargo related equipm ent(whether or n ot integral to the vessel),


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or the hand ling of mooring lines on thedock w hen the vessel is made fast or letgo, in th e United States or the coastalwaters th ereof.

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

Portmeans a geograph ic area, eitheron a seacoast, lake, river or any oth ernavigable body of water, which contain s

one or more pu blicly or privately own edterminals, piers, docks, or maritimefacilities, wh ich is common ly thought ofas a port by other governmen t maritime-related agencies, such as the MaritimeAdm inistration. U.S. ports includ e, butare not limited to, those listed inAppend ix A to this subpart.

Qualified and available in su fficientnumbers means the full complement ofqualified longshore workers needed toperform th e longshore activity, asdetermined by industry standards in theState of Alaska, includ ing safetyconsiderations.

Regional Administrator, Employmentand Training A dm inistration (RA)means the ch ief official of theEmployment and TrainingAdm inistration (ETA) in a Departmentof Labor (DOL) regional office.

Secretary means th e Secretary ofLabor or the Secretarys designee.

Strike means a labor dispute whereinemp loyees engage in a con certedstopp age of work (inclu din g stoppage byreason of the exp iration of a collective-bargaining agreement) or en gage in anyconcerted slowdown or other concertedinterruption of operations.

Unanticipated emergency means an

unexpected and unavoidable situation,such as on e involving severe weathercond itions, natural disaster, ormechanical breakdown, where cargomu st be immed iately loaded on , orun loaded from, a vessel.

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

United States Employment Service(USES) means th e agency of theDepartment of Labor, established u nd erthe Wagner-Peyser Act, which ischarged with administering the nationalsystem of public em ploymen t offices.

United States (U.S.) workermeans a

worker w ho is a U.S. citizen, a U.S.national, a permanen t resident alien, orany other w orker legally permitted towork ind efinitely in the United States.

.510 Employer attestations.

(a) Who m ay subm it attestations? Anemp loyer (or the emp loyers d esignatedU.S. agent or representative) seeking toemp loy alien crewm embers for aparticular activity of longshore w orkun der the prevailing practice exceptionshall submit an attestation, providedthere is not in effect in the local port an y

collective bargaining agreementcovering at least 30 percent of thelongshore workers. An attestation isrequired for each port at which th eemp loyer intends to use aliencrewmem bers for longshore work. Theattestation shall inclu de: A completedForm ETA 9033, wh ich shall be signedby the emp loyer (or the emp loyers

designated agent or representative); andfacts and evid ence prescribed inparagraphs (d) through (f) of thissection. This

.510 shall notapp ly in the case of longshore workperformed at a particular location in theState of Alaska. The procedu resgoverning the filing of attestations un derthe Alaska exception are set forth at

.530 through

.541.

(b) Where and wh en shou ldattestations be subm itted? (1)Attestations mu st be submitted, by U.S.mail, p rivate carrier, or facsimiletransmission to th e U.S. Department of

Labor ETA Regiona l Office(s) wh ich aredesignated by the Chief, Division ofForeign Labor Certifications, USES.Attestations mu st be received and d ate-stamped by DOL at least 14 calend ardays p rior to the d ate of the firstperformance of the intended longshoreactivity, and shall be accepted for filingor returned by ETA in accordance withparagraph (g) of this section w ithin 14calendar d ays of the d ate received byETA. An attestation wh ich is acceptedby ETA solely because it was n otreviewed w ithin 14 d ays is subject tosubsequent invalidation pu rsuant toparagraph (i) of this section. Every

emp loyer filing an attestation shall havean agent or representative with a Un itedStates add ress. Such add ress shall beclearly indicated on th e Form ETA9033. In ord er to ensure that anattestation h as been accepted for filingprior to the d ate of the performan ce ofthe lon gshore activity, employers areadvised to take mailing time intoaccount to m ake sure that ETA receivesthe attestation at least 14 days prior tothe first performance of the longshoreactivity.

(2) Unan ticipated Emergencies. ETAmay accept for filing attestations

received after the 14-day dead line wh endue to an unanticipated emergency, asdefined in

.502 of this part.

When an emp loyer is claiming anun anticipated emergency, it shallsubmit documentation to supp ort sucha claim. ETA shall then make adetermin ation on the validity of theclaim, and shall accept the attestationfor filing or return it in accordance w ithparagraph (g) of this section. ETA shallin n o case accept an attestation receivedlater than th e date of the firstperformance of th e activity.

(c) What should be subm itted? (1)Form ETA 9033 with accom panyingdocumentation. For each port, acompleted an d d ated original Form ETA9033, or facsimile transmission thereof,containin g the required attestationelements and the original signature ofthe emp loyer (or the employersdesignated agent or rep resentative) shall

be submitted, along with two copies ofthe completed, signed, and dated FormETA 9033. (If the attestation issubm itted by facsimile transm ission, theattestation contain ing the originalsignature shall be maintained at the U.S.business ad dress of the employersdesignated agent or rep resentative).Copies of Form ETA 9033 are availableat all Departmen t of Labor ETA RegionalOffices and at th e Nation al Office. Inaddition, the employer shall submit twosets of all facts and evidence to sh owcomplian ce with each of the attestationelements as prescribed by th e regulatory

standard s in paragraphs (d) through (f)of this section. In the case of aninvestigation pu rsuan t to subpart G ofthis part, the employer shall have theburd en of proof to establish the validityof each attestation. The emp loyer shallmaintain in its records at th e office ofits U.S. agent, for a perio d of at least 3years from the date of filing, sufficientdocumentation to meet its burden ofproof, which shall at a minimu minclude the d ocumentation d escribed inthis

.510, and sh all make thedocu men ts available to Department ofLabor officials up on request.

Whenever any docum ent is submitted

to a Federal agency or retained in theemployers records pu rsuan t to this part,the document either shall be in theEnglish lan guage or shall beaccompan ied by a written translationinto th e English language certified bythe translator as to the accu racy of thetranslation and his/her comp etency totranslate.

(2) Statutory p recond ition regardingcollective bargaining agreements. (i) Theemployer m ay file an attestation on lywh en there is no collective bargainin gagreement in effect in the p ort covering30 percent or m ore of the lon gshore

workers in the port. The employer shallattest on the Form ETA 9033 that nosuch collective bargaining agreementexists at the p ort at the time that theattestation is filed.

(ii) The employer is not requ ired tosubm it with the Form ETA 9033documentation substantiating that thereis no collective bargaining agreemen t ineffect in the p ort covering 30 percent ormore of the longshore w orkers. If acomplaint is filed wh ich presentsreasonable cause to believe that such anagreement exists, the Department sh all


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the autom ated vessel exception see

.520 of this part.

(2) Documentation. In assembling thefacts and eviden ce required byparagraph (d)(1) of this section, theemployer may consult with the portauthority which has jurisdiction overthe local p ort, the collective bargainingrepresentative(s) of longshore w orkers at

the local port, other emp loyers, or anyother entity wh ich is familiar with thepractices at the port. Suchdocumentation shall include a writtensum mary of a survey of the experienceof ship masters who entered th e localport in th e previous year; or a letter,affidavit, or other w ritten statementfrom an approp riate local port authorityregardin g the use of alien crewm embersto perform the longshore activity at theport in th e previous year; or otherdocumentation of comparable weight.Written statements from collectivebargainin g representatives and/ or

shipping agents with direct knowledgeof practices regardin g the u se of aliencrewmem bers in the local port may alsobe pertinent. Such docum entation shallaccompan y the Form ETA 9033, andany un derlying documentation whichsupports the employers burden of proofshall be maintained in the emp loyersrecord s at the office of the U.S. agent asrequired by p aragraph (c)(1) of thissection.

(e) Th e second attestation elemen t: nostrike or lockou t; no intention or designto in fluence bargaining representativeelection. (1) The em ployer sh all attestthat, at the time of submitting the

attestation, there is n ot a strike orlockout in the course of a labor dispu tecovering the em ployers activity, andthat it will not use alien crewmem bersdu ring a strike or lockout after filing theattestation. The em ployer shall alsoattest that the emp loyment of suchaliens is not intend ed or designed toinfluence an election for a bargainingrepresentative for workers in th e localport. Labor disp utes for purp oses of thisattestation elemen t relate only to thoseinvolving longshore workers at the portof intended employment. Thisattestation elemen t app lies to strikes

and lockou ts and elections of bargainin grepresentatives at the local port wherethe u se of alien crewmem bers forlongshore work is intended.

(2) Documentation. As d ocumentationto substantiate the requirement inparagraph (e)(1) of this section, anemp loyer may submit a statement of thegood faith efforts made to determin ewh ether there is a strike or lockout atthe p articular port, as, for example, bycontacting the port authority or thecollective bargaining representative forlongshore workers at the particular port.

(f) Th e third attestation elemen t:notice of filing. The em ployer of aliencrewmem bers shall attest that at thetime of filing the attestation, notice offiling has been provid ed to thebargainin g representative of thelongshore workers in th e local port, or,wh ere there is no such bargainingrepresentative, notice of the filing has

been provided to longshore workersemp loyed at the local port throughposting in conspicuous locations andthrough other app ropriate means.

(1)Notification of bargainingrepresentative. No later than th e datethe attestation is received by DOL to beconsidered for filing, the employer ofalien crewmem bers shall notify thebargainin g representative (if any) oflongshore workers at the local port thatthe attestation is being subm itted toDOL. The notice shall includ e a copy ofthe Form ETA 9033, shall state theactivity(ies) for w hich the attestation is

subm itted, and shall state in that noticethat the attestation and accompanyingdocu mentation are available at thenatio nal office of ETA for review byinterested parties. The employer mayhave its own er, agent, consignee,master, or command ing officer providesuch n otice. Notices un der thisparagraph (f)(1) shall includ e thefollowing statement: Complaintsalleging misrep resentation of m aterialfacts in th e attestation an d/ or failure tocomp ly with th e terms of the attestationmay be filed w ith an y office of the Wageand Hour Division of the Un ited StatesDepartm ent o f Labor.

(2) Posting notice where there is nobargaining representative. If there is n obargainin g representative of longshoreworkers at the local port when th eemp loyer submits an attestation to ETA,the emp loyer shall provid e writtennotice to the port au thority fordistribution to the p ublic on request. Inadd ition, the employer shall post one ormore w ritten notices at the local port,stating that the attestation w ithaccompanying d ocumentation has beensubm itted, the activity(ies) for whichthe attestation h as been submitted, andthat the attestation and accompanying

docu mentation are available at thenatio nal office of ETA for review byinterested parties. Such p osted noticeshall be clearly visible andun obstructed, and shall be posted inconspicuous p laces wh ere the longshoreworkers readily can read the p ostednotice on the w ay to or from theirdu ties. App ropriate locations for postingsuch n otices include locations in th eimm ediate proximity of man datory FairLabor Standard s Act wage and hou rnotices and Occu pational Safety andHealth Act occup ational safety and

health notices. The notice shall includ ea copy of the Form ETA 9033 filed w ithDOL, shall p rovide in formationconcernin g the availability ofsupporting documents for examinationat the n ational office of ETA, and shallinclud e the following statemen t:Complaints alleging misrepresentationof material facts in th e attestation an d/

or failure to comply with the terms ofthe attestation m ay be filed with anyoffice of the Wage and Hour Division ofthe United States Department of Labor.

(3)Documentation. The emp loyershall provid e a statement setting forththe name and address of the person towhom the notice was provided andwhere and w hen the n otice was postedand shall attach a copy of the notice.

(g)Actions on attestations subm ittedfor filing. Once an attestation has beenreceived from an emp loyer, adetermin ation shall be made by theregional Certifying Officer whether toaccept the attestation for filing or returnit. The regional Certifyin g Officer mayrequest additional explanation and /ordocumentation from the employer inmaking this determination. Anattestation wh ich is properly filled ou tand wh ich includes accompanyingdocu men tation for each of therequiremen ts set forth at

.510(d) through (f) shall be

accepted for filing by ETA on the d ateit is signed by the regional CertifyingOfficer unless it falls within on e of thecategories set forth in p aragraph (g)(2) ofthis section. Once an attestation isaccepted for filing, ETA shall then

follow th e procedu res set forth inparagraph (g)(1) of this section. Uponacceptance of th e emp loyers attestationby ETA, the attestation an daccompanying d ocumentation will beforwarded an d sh all be available in atimely mann er for public examination atthe ETA national office. ETA shall notconsider information con testing anattestation received by ETA prior to thedetermin ation to accept or return theattestation for filing. Such informationshall n ot be mad e part of ETAsadm inistrative record on th e attestation,but sh all be referred to ESA to be

processed as a comp laint p ursuant tosubp art G of this part if the attestationis accepted by ETA for filing.

(1)Acceptance. (i) If the attestation isproperly filled out and includesaccompanying documentation for eachof the requirements at

.510(d)

throu gh (f), and does not fall within oneof the categories set forth at paragraph(g)(2) of this section , ETA shall accep tthe attestation for filing, providenotification to the INS office h aving

jurisd iction over the port wh erelongshore work will be performed, and


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return to the emp loyer, or theemp loyers agent or represen tative at aU.S. address, one cop y of the attestationform submitted by the emp loyer, withETAs acceptance ind icated thereon.The emp loyer may then use aliencrewmem bers for the particular activityof longshore work at the U.S. port citedin the attestation in accordance with

INS regulations.(ii) DOL is not th e guaran tor of the

accuracy, truthfulness or adequ acy of anattestation accepted for filing.

(2) Unacceptable attestations. ETAshall not accept an attestation for filingand sh all return su ch attestation to theemp loyer, or the emp loyers agent orrepresentative at a U.S. add ress, whenone of the following cond itions exists:

(i) When the Form ETA 9033 is notprop erly filled out. Examples ofimp roperly filled ou t Form ETA 9033sinclude instances where the emp loyerhas n eglected to check all the n ecessary

boxes, or where the emp loyer has failedto include the name of the port wh ereit intends to use the alien crewmembersfor longshore w ork, or where theemployer has named a p ort that is notlisted in Ap pendix A an d h as failed tosubm it facts and evidence to supp ort ashow ing that the location is a port asdefined by

.502, or when the

emp loyer has failed to sign theattestation or to designate an agent inthe United States;

(ii) When the Form ETA 9033 withaccompan ying documentation is notreceived by ETA at least 14 days p rior

to the d ate of performance of the firstactivity ind icated on the Form ETA9033; un less the employer is claimin gan unanticipated emergency, hasincluded docum entation whichsupp orts such claim, and ETA hasfound the claim to be valid;

(iii) When th e Form ETA 9033 doesnot include accompanyingdocu men tation for each of therequiremen ts set forth at

.510(d) throu gh (f);

(iv) When th e accompanyin gdocumentation required by paragraph(c) of this section submitted by theemp loyer, on its face, is inconsistentwith th e requirements set forth at

.510 (d) through (f). Examples

of such a situation inclu de instanceswh ere the Form ETA 9033 pertains toone port and the accompanyingdocumentation to another; where theForm ETA 9033 pertains to on e activityof longshore work and th eaccompan ying docum entation obviouslyrefers to another; or where th edocumentation clearly indicates thatonly thirty percen t, instead of therequired fifty p ercent, of the activity

attested to is performed by aliencrewmembers;

(v) When the Ad ministrator, Wageand Hour Division, has notified ETA, inwriting, after an investigation p ursu antto subp art G of this part, that theparticular activity of longshore w orkwhich the employer has attested is theprevailing practice at a particular port,

is not, in fact, the p revailing practice atthe particular port;

(vi) When the Ad ministrator, Wageand Hour Division, has notified ETA, inwriting, that a cease and desist order h asbeen issued pu rsuant to subpart G ofthis part, with respect to the attestingemp loyers performance of theparticular activity and p ort, in violationof a previously accepted attestation;

(vii) When the Ad ministrator, Wageand Hour Division, has notified ETA, inwriting, after an investigation p ursu antto subp art G of this part, that theparticular employer has misrepresentedor failed to comp ly with an attestationpreviously submitted and accepted forfiling, but in n o case for a period ofmore than one year after the d ate of theAdm inistrators notice and provid edthat INS has not advised ETA that theproh ibition is in effect for a lesserperiod; or

(viii) When th e Adm inistrator, Wageand Hour Division, has notified ETA, inwriting, that the emp loyer has failed tocomp ly with any pen alty, sanction, orother remed y assessed in a final agencyaction following an investigation by theWage and Hou r Division pursu ant tosubp art G of this part.

(3)Resubmission. If the attestation isnot accepted for filing pursu ant to thecategories set forth in paragrap h (g)(2) ofthis section, ETA shall return to th eemp loyer, or the emp loyers agent orrepresentative, at a U.S. address, theattestation form and accompanyingdocumentation submitted by theemp loyer. ETA shall notify theemp loyer, in writing, of the reason(s)that the attestation is unacceptable.When an attestation is found to beun acceptable pu rsuant to p aragraphs(g)(2) (i) throu gh (iv) of this section , theemp loyer may resubmit th e attestation

with the p roper documentation. Whenan attestation is foun d to beun acceptable pu rsuant to p aragraphs(g)(2) (v) throu gh (viii) of this sect ionand returned, such action shall be thefinal decision of the Secretary of Labor.

(h)Effective date and validity of filedattestations. An attestation is filed an deffective as of the date it is accepted andsigned by the regional Certifying Officer.Such attestation is valid for the 12-month period beginning on the d ate ofacceptance for filing, un less suspen dedor invalidated pu rsuant to subp art G of

this p art or paragraph (i) of this section.The filed attestation exp ires at the endof the 12-mon th p eriod of validity.

(i) Su spension or invalidation of filedattestations. Suspension or invalidationof an attestation may resu lt fromenforcement action(s) un der subp art Gof this part (i.e., investigation(s)cond ucted by the Adm inistrator or cease

and d esist order(s) issued by th eAdm inistrator regarding the em ployersmisrepresentation in or failure to carryout its attestation); or from a d iscoveryby ETA that it made an error inaccepting the attestation becau se suchattestation falls within on e of thecategories set forth in p aragraph (g)(2) ofthis section.

(1)Result of Wage and Hour Divisionaction. Upon the determination of aviolation und er subpart G of this part,the Administrator shall, pursuant to

.660(b), notify the Attorney

General of the violation and of theAdm inistrators n otice to ETA.

(2)Result of ETA action. If, afteraccepting an attestation for filing, ETAfinds that the attestation is un a

Documents

Department of Labor: 60 FED REG 3950