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

DEPARTMENT OF LABOR

Employment and Training

Administration

20 CFR Part 655

RIN 1205–AB03

Wage and Hour Division

29 CFR Part 506

RIN 1215–AA90

Attestations by Employers Using Alien

Crewmembers for Longshore Activities

in U.S. Ports

AGENCIES: Employment and Training

Administration and Wage and Hour

Division, Employment Standards

Administration, Labor.

ACTION: Interim final rule; request for

comments.

SUMMARY: The Employment and

Training Administration (ETA) and the

Employment Standards Administration

(ESA) of the Department of Labor (DOL

or Department) are promulgating

regulations to implement amendments

to existing regulations governing the

filing and enforcement of attestations by

employers seeking to use alien

crewmembers to perform longshore

work in the U.S. The amendments relate

to employers’ use of alien crewmembers

to perform longshore work at locations

in the State of Alaska. Under the

Immigration and Nationality Act

employers, in certain circumstances, are

required to submit these attestations to

DOL in order to be allowed by the

Immigration and Naturalization Service

(INS) to use alien crewmembers to

perform specified longshore activities at

locations in the State of Alaska. The

attestation process is administered by

ETA, while complaints and

investigations regarding the attestations

are handled by ESA.

DATES: Effective Date: The interim final

rule promulgated in this document is

effective on February 21, 1995.

Comments: Written comments on the

interim final rule are invited from

interested parties. Comments shall be

submitted by March 20, 1995.

ADDRESSES: Submit comments to: Doug

Ross, Assistant Secretary, Employment

and Training Administration,

Department of Labor, Room N–4456,

200 Constitution Avenue NW.,

Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: On

20 CFR part 655, subpart F, and 29 CFR

part 506, subpart F, contact Flora T.

Richardson, Chief, Division of Foreign

Labor Certifications, U.S. Employment

Service, Employment and Training

Administration, Department of Labor,

Room N–4456, 200 Constitution Avenue

NW., Washington, DC 20210.

Telephone: (202) 219–5263 (this is not

a toll-free number).

On 20 CFR part 655, subpart G, and

29 CFR part 506, subpart G, contact

Solomon Sugarman, Chief, Farm Labor

Programs, Wage and Hour Division,

Employment Standards Administration,

Department of Labor, Room S–3502, 200

Constitution Avenue NW., Washington,

DC 20210. Telephone: (202) 219–7605

(this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

The information collection

requirements of the Form ETA 9033–A

under the Alaska exception and

contained in this rule have been

submitted to the Office of Management

and Budget (OMB) for clearance under

the Paperwork Reduction Act of 1980

(44 U.S.C. 3501 et seq.) and have been

assigned OMB Control No. 1205–0352.

The information collection requirements

of the Form ETA 9033 under the

prevailing practice exception, assigned

OMB Control No. 1205–0309, remain

unchanged by this rulemaking. The

Form ETA 9033 was published in the

Federal Register with the final rule to

implement the prevailing practice

exception on September 8, 1992 (57 FR

40966).

The Employment and Training

Administration estimates that

employers will be submitting up to 350

attestations per year under the Alaska

exception. The public reporting burden

for this collection of information is

estimated to average 3 hours per

response, including the time for

reviewing instructions, searching

existing information/data sources,

gathering and maintaining the

information/data needed, and

completing and reviewing the

attestation. It is likely that the burden

will be considerably less in the second

and subsequent years in which an

employer submits an attestation.

Written comments on the collection of

information requirements should be

sent to the Office of Information and

Regulatory Affairs, Office of

Management and Budget, Attention:

Desk Officer for Employment and

Training Administration, Washington,

DC 20503.

II. Background

The Coast Guard Authorization Act of

1993, Pub. L. 103–206, 107 Stat. 2419

(Coast Guard Act), was enacted on

December 20, 1993. Among other things,

the Coast Guard Act amended section

258 of the Immigration and Nationality

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

places limitations on the performance of

longshore work by alien crewmembers

in U.S. ports.

The loading and unloading of vessels

had traditionally been performed by

U.S. longshore workers. However, until

passage of the Immigration Act of 1990

(IMMACT 90), Pub. L. 101–649, 104

Stat. 4978, (November 29, 1990), alien

crewmembers had also been allowed by

Immigration and Naturalization Service

(INS) regulation to do this kind of work

in U.S. ports, because longshore work

was considered to be within the scope

of permitted employment for alien

crewmembers. The IMMACT 90 limited

this practice in order to provide greater

protection to U.S. longshore workers.

Prior to the Coast Guard Act’s

enactment, section 258 of the INA

prohibited alien crewmembers admitted

with D-visas from performing longshore

work except in four specific instances:

(a) Where the vessel’s country of

registration does not prohibit U.S.

crewmembers from performing

longshore work in that country’s ports

and nationals of a country which does

not prohibit U.S. crewmembers from

performing longshore work in that

country’s ports hold a majority of the

ownership interest in the vessel; (b)

where there is in effect in a local port

one or more collective bargaining

agreement(s), each covering at least 30

percent of the longshore workers at a

particular port and each permitting the

activity to be performed by alien

crewmembers; (c) where there is no

collective bargaining agreement

covering at least 30 percent of the

longshore workers and an attestation

has been filed with the Department

which states that the use of alien

crewmembers to perform longshore

work is permitted under the prevailing

practice of the port, that the use of alien

crewmembers is not during a strike or

lockout, that such use is not intended or

designed to influence the election of a

collective bargaining representative, and

that notice has been provided to

longshore workers at the port; and (d)

where the activity is performed with the

use of automated self-unloading

conveyor belts or vacuum-actuated

systems; provided that, the Secretary of

Labor (Secretary) has not found that an

attestation is required because it was not

the prevailing practice to utilize alien

crewmembers to perform the activity or

because the activity was performed

during a strike or lockout or in order to

influence the election of a collective

bargaining representative. For this

purpose, the term ‘‘longshore work’’
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3951

does not include the loading or

unloading of hazardous cargo, as

determined by the Secretary of

Transportation, for safety and

environmental protection and no

attestations were or are necessary for the

loading and unloading of such cargo.

The Department published final

regulations in the Federal Register on

September 8, 1992, (57 FR 40966) to

implement the prevailing practice

exception under IMMACT 90. The

fishing industry and the carriers worked

together to comply with the law by

filing the necessary attestations to

qualify under the prevailing practice

exception. The International Longshore

and Warehousemen’s Union responded

to protect the jurisdiction of U.S.

longshore workers by filing complaints

pursuant to the attestations and seeking

cease and desist orders to halt the

performance of longshore work by the

carrier’s alien crewmembers.

The basic problem was that the

prevailing practice exception was

apparently designed for established port

areas. A lack of flexibility in the remote

areas of Alaska where the longshore

work needed to be performed, in some

cases, prevented carriers from

complying with Departmental

regulations. As a result, even where

there were no U.S. longshore workers

available for the particular employment,

employers in some of these remote areas

were prohibited from performing the

necessary longshore work, resulting in

potential adverse impacts on the

Alaskan fishing industry including the

loss of American jobs. In order to

remedy the situation, Congress

consulted with representatives of the

longshoremen’s unions and the carriers

and enacted special provisions

recognizing the unique character of

Alaskan ports.

The Coast Guard Act amended the

INA by establishing a new Alaska

exception to the general prohibition on

the performance of longshore work by

alien crewmembers in U.S. ports. The

Alaska exception provides that the

prohibition does not apply where the

longshore work is to be performed at a

particular location in the State of Alaska

and an attestation with accompanying

documentation has been filed by the

employer with the Department of Labor.

The INA provides, however, that

longshore work consisting of the use of

an automated self-unloading conveyor

belt or vacuum-actuated system on a

vessel shall continue to be governed by

section 258(c) of the INA (8 U.S.C.

1288(c)), even at locations in the State

of Alaska. If, however, it is determined

that an attestation is required for

longshore work at locations in the State

of Alaska consisting of the use of

automated equipment, i.e., because the

Administrator has determined, pursuant

to a complaint, that it is not the

prevailing practice to use alien

crewmembers to perform the longshore

activity(ies) through the use of the

automated equipment, or was during a

strike or lockout or intended to

influence an election of a bargaining

representative for workers in the local

port, or if the Administrator issues a

cease and desist order against use of the

automated equipment without such

attestation, the required attestation shall

be filed by the employer under the

Alaska exception and not under the

prevailing practice exception. The

amended INA provides that the

prevailing practice exception no longer

applies in case of longshore work to be

performed at a particular location in the

State of Alaska. As a result, U.S. ports

in the State of Alaska which were

previously listed in Appendix A, ‘‘U.S.

Seaports,’’ have been removed from the

Appendix in this interim final rule.

The Alaska exception is intended to

provide a preference for hiring United

States longshoremen over the

employer’s alien crewmembers. The

employer must attest that, before using

alien crewmen to perform the activity

specified in the attestation, the

employer will make a bona fide request

for and employ United States longshore

workers who are qualified and available

in sufficient numbers from contract

stevedoring companies and private dock

operators. The employer must also

provide notice of filing the attestation to

such contract stevedoring companies

and private dock operators, and to labor

organizations recognized as exclusive

bargaining representatives of United

States longshore workers. Finally, the

employer must attest that the use of

alien crewmembers to perform

longshore work is not intended or

designed to influence the election of a

bargaining representative for workers in

the State of Alaska.

The Coast Guard Act provides that the

Secretary of Labor shall prescribe such

regulations as may be necessary to carry

out the amendments to the INA. The

INA further provides that attestations

previously filed pursuant to the

prevailing practice exception at section

258(c) of the INA (8 U.S.C. 1288(c))

would not expire at the expiration of

their respective validity periods but

would remain valid until 60 days after

the date of issuance of final regulations

by the Secretary. Absent a final rule for

attestations under this program,

employers are precluded from using

alien crewmembers for longshore

activity at a particular location in the

State of Alaska unless an employer had

a valid attestation for the location on file

with ETA on the date of the Act’s

enactment. Thus, even where there are

no qualified United States longshore

workers available at a particular

location in the State of Alaska, such an

employer is prohibited from utilizing

alien crewmembers to perform the

necessary longshore work. This program

affects a limited class of individuals and

entities in Alaska. The Department

consulted with representatives of all

relevant parties in the development of

this interim final rule and, for good

cause, has determined that issuance of

a proposed rule is unnecessary. 5 U.S.C.

553(b)(B).

Further, there is ongoing longshore

work being performed off the coast of

Alaska in connection with the fishing

industry. Since delay in the issuance of

an interim final rule precludes

employers from filing attestations in

Alaska in order to use the ‘‘Alaska

exception’’, such employers may be

encouraged by economic exigencies to

utilize foreign crewmembers in

longshore work illegally or to reflag

their vessels to qualify for the

reciprocity exception for vessels under

the flags of countries which permit U.S.

crewmembers to perform longshore

work. Either of these actions by shippers

would diminish employment

opportunities for Alaskan stevedores,

contrary to the purposes of the Act.

Indeed, DOL has received information

that further delay in implementing the

Alaska exception could adversely

impact the employment opportunities

for Alaskan workers seeking longshore

work. The Department, for good cause,

has determined that this potential harm

makes it impracticable and contrary to

the public interest to delay

implementation by publishing the rule

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

Nevertheless, the Department is very

interested in receiving comments on the

interim final rule. These comments will

be considered in the development of a

final rule.

III. Attestation Process and

Requirements

The regulations for the attestation

program for employers using alien

crewmembers for longshore work in the

United States are published at 20 CFR

part 655, subparts F and G, and 29 CFR

part 506, subparts F and G, 57 FR 40966

(September 8, 1992).

A. When and Where to File

The regulations require that, to be

acceptable, any attestation under the

Alaska exception must be filed with

ETA at least 30 days prior to the first
3952 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

performance of longshore activity by

alien crewmembers, or anytime up to 24

hours before the first performance of the

activity if the delay could not have been

reasonably anticipated. An attestation

must be filed only once per year for

locations at which alien crewmembers

will be used. Therefore, the 30-day

filing requirement applies only to the

first performance of longshore work

after the attestation is filed. Subsequent

arrivals to the same location in the State

of Alaska in the same year do not

require that an additional attestation be

filed.

Under the prevailing practice

exception, the regulations require that a

separate attestation be filed for each port

at which the employer intends to use

alien crewmembers to perform

longshore work. The Department has

determined that, under the Alaska

exception, it is appropriate to accept

attestations which contain multiple

locations. An attestation must be filed

by each individual employer but may

apply to multiple vessels and multiple

locations within the State of Alaska. For

other States, the prevailing practice

exception is port-specific and the

employer is required to attest that there

is no collective bargaining agreement in

the port covering at least 30 percent of

the longshore workers, and that it is the

prevailing practice in the port for alien

crewmembers to perform longshore

work. There is no such port-specific or

location-specific attestation element or

other provision under the Alaska

exception.

The Department requires that

crewmember attestations for locations in

the State of Alaska be submitted to and

accepted by the Employment and

Training Administration (ETA) regional

office in Seattle, Washington. The

address of the Seattle regional office is

listed in the instructions for completing

the Form ETA 9033–A.

ETA shall make available for public

examination in Washington, DC, a list of

employers which have filed attestations,

and for each such employer, a copy of

the employer’s attestation and

accompanying documentation in a

timely manner after the acceptance of

the attestation.

B. Acceptance for Filing

In accepting an attestation for filing,

the regulations require that the

application be filed with ETA at least 30

days before the first performance of the

longshore activity (or anytime up to 24

hours before the first performance of the

activity, upon a showing that the

employer could not have reasonably

anticipated the need to file an

attestation for that location at that time).

The term ‘‘could not have reasonably

anticipated’’ is intended to be a broader

and more flexible standard than under

the prevailing practice exception, which

permits late filing only in the event of

an ‘‘unanticipated emergency.’’

Depending on the particular

circumstances, delays occasioned by

adverse weather conditions, changes in

commercial requirements, changes in

fish migration patterns, or other

unforeseen circumstances may be

sufficient to file less than 30 days in

advance.

The regulations provide that the

Department review an attestation only

to ensure that it is completed properly,

that it is accompanied by the required

documentation specified in the

regulations, and that the documentation

is not, on its face, inconsistent with the

attestation.

Level of Federal Review of Attestations

The Department has determined that

the general approach to its review of

employer attestations under the

prevailing practice exception shall

apply to attestations filed under the

Alaska exception. The Department will

review an attestation to ensure that it

has been filed at least 30 days prior to

the first performance of the longshore

activity (or anytime up to 24 hours

before the first performance of the

activity, upon a showing that the

employer could not have reasonably

anticipated the need to file an

attestation for that location at that time),

that it is completed properly, that it has

the appropriate accompanying

documentation, and that the

documentation is not, on its face,

inconsistent with the attestation. In

addition, the Department will review

attestations to determine the following:

(1) Whether the Administrator, Wage

and Hour Division, DOL, has advised

ETA that it has issued a cease and desist

order currently in effect that would

affect the attesting employer and

particular location; (2) whether the

Administrator has advised ETA of a

determination that an employer has

misrepresented or failed to comply with

an attestation previously submitted and

accepted for filing, requiring the

Attorney General to bar the employer

from entry to any U.S. port for up to one

year; and (3) whether the Administrator

has advised ETA that the employer has

failed to comply with any penalty or

remedy assessed.

Appeals Process

The regulations do not include an

administrative appeal process for

attestations during the filing phase

under the Alaska exception. When an

attestation is returned because it is

untimely, improperly completed, or

lacking proper documentation, an

employer may resubmit another

attestation to the Department.

Attestations which have been accepted

by ETA may be objected to by an

aggrieved party through the complaint

process in subpart G, and procedures for

investigation, hearing, and appeal are

provided therein. The Department

believes that this approach is consistent

with the statute’s intent for a

streamlined attestation filing process

and a complaint-driven enforcement

system for the statute’s requirements.

C. Attestation Elements

Bona-fide Request for United States

Longshore Workers

An employer or its agent filing an

attestation under the Alaska exception

must attest that it will make a bona fide

request for dispatch of United States

longshore workers who, by industry

standards in the State of Alaska,

including safety considerations, are

qualified and available in sufficient

numbers to perform the longshore

activity at the particular time and

location. Such requests must be directed

to contract stevedoring companies and

operators of private docks at which the

employer intends to use longshore

workers. Wherever two or more contract

stevedoring companies have signed a

joint collective bargaining agreement

with a single qualified labor

organization, the employer need request

longshore workers from only one of

such contract stevedoring companies.

Qualified labor organizations are those

which have been recognized as

exclusive bargaining representatives of

United States longshore workers within

the meaning of the National Labor

Relations Act (29 U.S.C. 141 et seq.) and

which make available or intend to make

available longshore workers to the

particular location where the longshore

work is to be performed. An employer

is not required to request dispatch of

United States longshore workers from

contract stevedoring companies or

private dock operators which do not

meet the requirements of section 32 of

the Longshore and Harbor Workers’

Compensation Act (33 U.S.C. 932) or, in

the case of contract stevedoring

companies, which are not licensed to do

business in the State of Alaska.

Evidence of coverage is a copy of the

DOL Office of Workers’ Compensation

Programs (OWCP) Certificate of

Compliance, which is maintained by the

contract stevedoring company or private

dock operator. Further, a request for

dispatch from a private dock operator
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3953

need only be made for longshore work

to be performed at that dock.

Employers are not required to request

dispatch of United States longshore

workers from any party which has

notified the employer in writing that it

does not intend to dispatch workers to

the location at which longshore work is

to be performed. If a party that has

provided such notice subsequently

informs the employer in writing that it

is prepared to provide workers, the

employer’s obligations to that party to

request dispatch of, and employ

qualified United States longshore

workers made available in sufficient

numbers, recommence 60 days from the

employer’s receipt of the notice.

Employment of United States Longshore

Workers

An employer or its agent must attest

that it will employ all United States

longshore workers dispatched in

response to a request made under the

first attestation element who are

qualified and available in sufficient

numbers and who are needed to perform

the longshore activity at the particular

time and location attested to.

This attestation element also specifies

that employers will not be required to

hire less than full work units of United

States longshore workers nor to provide

overnight accommodations for the

workers. The regulations provide that

‘‘full work unit’’ means the full

complement of longshore workers

needed to perform the longshore

activity, as determined by industry

standards in the State of Alaska,

including safety considerations. Where

the makeup of a full work unit is

covered by one or more collective

bargaining agreements in effect at the

time and location where longshore work

is to be performed, the provisions of

such agreements shall be deemed to be

in conformance with industry standards

in the State of Alaska. This element also

states the conditions under which

employers will be required to provide

transportation from the point of

embarkation to the vessel on which

longshore work is to be performed.

Specifically, there is a thirty-minute

travel time limit and a five-mile travel

distance limit except in Klawock/Craig

and Wide Bay, Alaska, where, due to the

remoteness of these areas, the travel

limits are extended to forty-five minutes

and seven and one-half miles,

respectively. Further, an employer is not

required to provide transportation, even

if the vessel is within the specified time

and distance limitations from the point

of embarkation, unless surface

transportation is available and such

transportation may be safely

accomplished. If a vessel where

longshore work is to be performed is

beyond the specified time and distance

limitations from the point of

embarkation, the employer is still

obligated to hire any qualified U.S.

longshore worker who is capable of

getting to the vessel where the longshore

work is to be performed at his or her

own expense, even though the specified

time and/or distance limitations are

exceeded, but is not required to provide

such transportation nor reimburse the

worker for expenses incurred in getting

to and from the vessel.

Election

An employer filing an attestation

under the Alaska exception must attest

that the use of alien crewmembers to

perform longshore activities will not be

intended or designed to influence an

election of a bargaining representative

for workers in the State of Alaska.

Notice

Lastly, an employer of alien

crewmembers must attest that at the

time of filing the attestation, notice of

the filing has been provided to: (1)

Labor organizations which have been

recognized as exclusive bargaining

representatives of United States

longshore workers within the meaning

of the National Labor Relations Act (29

U.S.C. 141 et seq.) and which make

available or intend to make available

workers to the locations where the

employer is attesting that the longshore

work is to be performed; (2) contract

stevedoring companies which are

licensed to do business in the State of

Alaska, meet the requirements of section

32 of the Longshore and Harbor

Workers’ Compensation Act (33 U.S.C.

932), and which employ or intend to

employ United States longshore workers

at those locations; and (3) operators of

private docks at which the employer

intends to use longshore workers. The

operators to whom provision of notice is

required shall also meet the

requirements of section 32 of the

Longshore and Harbor Workers’

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

The required notices shall include a

copy of the Form ETA 9033–A, shall

state that the attestation with

accompanying documentation has been

filed and is available at the National

office of ETA for review by interested

parties, and shall explain where

complaints can be filed with respect to

employer attestations. Further, in the

required notice, the employer shall

request a copy of the Certificate of

Compliance issued by the district

director of the Office of Workers’

Compensation Programs under section

37 of the Longshore and Harbor

Workers’ Compensation Act (33 U.S.C.

932) from contract stevedoring

companies and private dock operators.

The employer’s obligations to request

dispatch of and employ qualified United

States longshore workers from any party

shall commence upon receipt of the

Certificate of Compliance.

Finally, the Department periodically

shall publish in the Federal Register a

list of employers who have submitted

attestations under the Alaska exception.

D. Automated Vessel Exception

The INA provides that longshore work

consisting of the use of an automated

self-unloading conveyor belt or vacuumactuated system on a vessel shall

continue to be governed by the

prevailing practice exception and

Departmental regulations thereunder at

20 CFR 655.520 and 29 CFR 506.520. If,

however, it is determined that an

attestation is required for longshore

work consisting of the use of automated

equipment, i.e., because the

Administrator has determined, pursuant

to a complaint, that it is not the

prevailing practice to use alien

crewmembers to perform the longshore

activity(ies) through the use of the

automated equipment, or was during a

strike or lockout or intended to

influence an election of a bargaining

representative for workers in the local

port, or if the Administrator issues a

cease and desist order against use of the

automated equipment without such

attestation, the required attestation shall

be filed by the employer under the

Alaska exception and not under the

prevailing practice exception. The

amended INA provides that the

prevailing practice exception no longer

applies in the case of longshore work to

be performed at a particular location in

the State of Alaska.

IV. Complaints, Investigations, and

Dispositions

The INA provides that the Secretary

shall establish complaint, investigation,

and hearing procedures and authorizes

the Secretary to issue cease and desist

orders against employers. The

Secretary’s enforcement responsibilities

are assigned to the Administrator, Wage

and Hour Division, of the Department’s

Employment Standards Administration

(ESA).

A. Complaint, Investigation, and

Hearing

The INA provides that the existing

process for the receipt, investigation,

and disposition of complaints at section

258(c)(4) of the INA shall apply to the

use of alien crewmembers to perform
3954 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

longshore work at locations in the State

of Alaska. Therefore, enforcement of

attestations filed under the Alaska

exception will be conducted in

accordance with regulations currently in

place for attestations filed under the

prevailing practice exception.

Section 258(c)(4) of the INA requires

that the Secretary establish a system to

conduct investigations where a

complaint presents there is reasonable

cause to believe that an attesting

employer failed to meet a condition

attested to or misrepresented a material

fact in its attestation, or that a nonattesting employer claiming the

automated vessel exception was not

qualified for the exception because the

performance of the associated longshore

activity does not prevail in the port. The

regulations provide that the Wage and

Hour Administrator may conduct

investigations of potential violations of

the law only pursuant to a complaint.

The investigative process is to be

completed and a determination issued

in a 180-day period, or a longer period

for good cause shown. Any aggrieved

person may file a complaint.

The regulations provide that, in

investigating an attesting employer, the

Administrator shall consider the

employer’s statutory burden to present

and retain facts and evidence to show

the matters attested to. The regulations

also require that the employer cooperate

in the investigation and take no

retaliatory action against persons who

file complaints, assist in the

investigation, or participate in the

administrative proceedings.

B. Administrative Law Judge Hearing

and Discretionary Review by the

Secretary

Section 258(c)(4)(D) of the INA

requires that the Secretary provide

interested parties an opportunity for a

hearing within 60 days of the date of the

investigative determination. Because of

this compressed timeframe, the

regulations require that a request for

hearing be filed directly with the Chief

Administrative Law Judge no later than

15 days from the date of the

Administrator’s determination. Further,

the regulations incorporate the statutory

imposition of the burden of proof on the

attesting employer to establish the truth

of the attestation elements.

An opportunity for discretionary

review by the Secretary is afforded by

the regulations, with short deadlines in

accordance with the statutory intent for

expedited dispositions. Any interested

party may request such review, and the

Secretary shall determine what matters,

if any, will be reviewed.

C. Cease and Desist Order

Section 258(c)(4)(C) of the INA

authorizes the Secretary, at the request

of a complainant, to issue a cease and

desist order against an attesting

employer or against a non-attesting

employer claiming the automated vessel

exception. The complainant’s request

may be made when the Secretary has

determined there is reasonable cause to

conduct an investigation. The INA

specifies that, if a complainant requests

such an order, the employer will be

notified and given 14 days within which

to respond. The Secretary is then

required to determine whether the

preponderance of the evidence

submitted supports the complainant’s

position and, if it does, to order that the

employer cease and desist the

activity(ies) at issue. The order remains

in effect throughout the hearing process

for the attesting employer; for the nonattesting employer claiming the

automated vessel exception, the order

remains in effect throughout the hearing

process unless ETA accepts for filing an

attestation from that employer for the

activity and location which the cease

and desist order affects.

The regulations provide that the

complainant who desires a cease and

desist order must submit two complete

copies of the request and the evidence

to substantiate the allegations (the

second copy of the request will be

provided to the employer). The

Administrator’s notice to the employer

shall include copies of the complaint,

the cease and desist order request and

supporting evidence, and any other

pertinent evidence from an investigation

of the same or a closely related matter

which the Administrator incorporates

into the record. The employer, thus, will

be fully informed as to the allegations

and evidence. The Administrator’s

notice also shall specify that, during the

14-day response period specified by the

INA, the Administrator will provide, at

the employer’s request, an opportunity

for a meeting with a Wage and Hour

Division official to give the employer’s

views on the evidence and issues. This

meeting shall be informal, shall not be

subject to any procedural rules, and

shall include the complainant if the

complainant so desires.

The regulations specify that the cease

and desist order will remain in effect

unless and until the Administrator

withdraws the order on the ground that

the employer’s position is determined to

have been correct or a final

determination is made which results in

resolution of the matter under

investigation, or—in the case of the

automated vessel exception—an

attestation relating to the longshore

activity is accepted for filing by ETA.

A complainant’s request for a cease

and desist order under the Alaska

exception shall specify the location(s) at

issue. The regulations provide that the

Secretary is required to determine

whether the preponderance of the

evidence submitted supports the

complainant’s position and, if it does, to

order that the employer cease and desist

the activity(ies) at the location(s) at

issue. Since an attestation under the

Alaska exception may be valid for

multiple locations, a cease and desist

order pertaining to a particular location

or locations shall not prejudice the

validity of the attestation with respect to

the performance of longshore activities

which are covered by the attestation, but

which are not at issue under the cease

and desist order.

D. Penalties

A violation of section 258 of the INA

or the regulations thereunder by an

attesting employer may result in the

imposition of administrative

remedy(ies), such as a civil money

penalty not to exceed $5,000 per alien

crewmember illegally employed. Upon

notice of the violation(s), the Attorney

General thereafter shall not permit the

vessels owned or chartered by the

employer to enter any port of the U.S.

during a period of up to one year.

Additionally, ETA will be notified and

shall thereafter not accept any

attestation from the employer for any

activity(ies) at any U.S. port for one year

(or for a shorter period, if such period

is specified by INS).

Upon the Department’s final

determination that an employer

improperly claimed the automated

vessel exemption, the Attorney General

will be notified and shall thereafter

require that, before using alien

crewmembers, the employer must have

on file with ETA an attestation for the

activity(ies) and the port at issue. For

locations in the State of Alaska such an

attestation shall be made under the

Alaska exception on Form ETA 9033–A.

For other states, the attestation shall be

made under the prevailing practice

exception on Form ETA 9033.

V. Enforcement Matters

A. Clarification of Judicial Review

To ensure that the regulation

comports with recent supreme court

caselaw, §lll.650 of the rule has

been amended to provide that a party

may not seek judicial review of an

administrative law judge’s decision

until such party has exhausted all

administrative remedies.
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3955

B. Debarment Timing (Notice to

Attorney General)

The statute requires that the Secretary

notify the Attorney General (AG) of an

employer’s violation(s). Pursuant to

§ lll.665(b) of the Interim Final rule,

the Administrator is required to notify

the AG and ETA of the final

determination of a violation by an

attesting employer or of the ineligibility

of an employer for the automated vessel

exception, upon the earliest of the

following events:

(1) Where the Administrator determines

that there is a basis for a finding of violation

by an attesting employer or a finding of

nonapplicability of the automated vessel

exception, and no timely request for hearing

is made pursuant to §lll.630 of this part;

(2) Where, after a hearing, the

administrative law judge issues a decision

and order finding a violation by an attesting

employer or finding inapplicable the

automated vessel exception; or

(3) Where the administrative law judge

finds that there was no violation by an

attesting employer or that the automated

vessel exception does apply, and the

Secretary, upon review, issues a decision

pursuant to §lll.655 of this part, holding

that a violation was committed by an

attesting employer or holding that the

automated vessel exception does not apply.

This regulatory construct creates a

situation where the Administrator

notifies the AG of a violation upon a

finding of a violation or upon a finding

that the automated vessel exception

does not apply by an ALJ, even though

such finding subsequently may be

appealed to the Secretary and

eventually overturned. An attesting

employer thus could be debarred after a

finding of violation by an ALJ, serve

part or all of the debarment period, and

subsequently be found by the Secretary

not to have committed a violation.

Similarly, if the ALJ finds that the

employer is ineligible for the automated

vessel exception, the employer could be

required not to use alien crewmembers

to perform longshore activities at the

specified port without first filing an

attestation with ETA, and subsequently

be found to be eligible for the automated

vessel exception by the Secretary.

To correct this anomaly,

§ lll.665(b) has been amended to

require notification to the AG after a

finding of a violation or a finding of

nonapplicability of the automated vessel

exception by an ALJ only under the

following circumstances: (a) where there

is no appeal from the ALJ’s finding to

the Secretary; (b) where, upon appeal,

the Secretary declines to review the

ALJ’s finding; and (c) where, upon

review, the Secretary affirms the ALJ’s

finding.

VI. Summary

The Department welcomes comments

on these and any other issues addressed

in the regulations and on any issues not

addressed that commenters believe need

to be addressed.

Regulatory Impact and Administrative

Procedure

E.O. 12866:

In accordance with Executive Order

12866, the Department of Labor has

determined that this is not a significant

regulatory action as defined in section

3(f) of the Order.

Regulatory Flexibility Act:

The Department of Labor has notified

the Chief Counsel for Advocacy, Small

Business Administration, and made the

certification pursuant to the Regulatory

Flexibility Act at 5 U.S.C. 605(b), that

the rule does not have a significant

economic impact on a substantial

number of small entities.

Nevertheless, interested parties are

requested to submit, as part of their

comments on this rule, information on

the potential economic impact of the

rule.

Absent a final rule for attestations

under this program, employers are

precluded from using alien

crewmembers for longshore activity at a

particular location in the State of Alaska

unless the employer had a valid

attestation for the location on file with

ETA on the date of the Coast Guard

Act’s enactment. This program affects a

limited class of individuals and entities

in Alaska. The Department consulted

with representatives of all relevant

parties in the development of this

interim final rule and, for good cause,

has determined that issuance of a

proposed rule is unnecessary. 5 U.S.C.

553(b)(B).

Further, there is ongoing longshore

work being performed off the coast of

Alaska in connection with the fishing

industry. Since delay in the issuance of

an interim final rule precludes

employers from filing attestations in

Alaska in order to use the ‘‘Alaska

exception’’, such employers may be

encouraged by economic exigencies to

utilize foreign crewmembers in

longshore work illegally or to reflag

their vessels to qualify for the

reciprocity exception for vessels under

the flags of countries which permit U.S.

crewmembers to perform longshore

work. Either of these actions by shippers

would diminish employment

opportunities for Alaskan stevedores,

contrary to the purposes of the Act.

Indeed, DOL has received information

that further delay in implementing the

Alaska exception could adversely

impact the employment opportunities

for Alaskan workers seeking longshore

work. The Department, for good cause,

has determined that this potential harm

makes it impracticable and contrary to

the public interest to delay

implementation by publishing the rule

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

Nevertheless, the Department is very

interested in receiving comments on the

interim final rule. These comments will

be considered in the development of a

final rule.

Catalog of Federal Domestic Assistance

Number

This program is not listed in the

Catalog of Federal Domestic Assistance.

List Of Subjects

20 CFR Part 655

Administrative practice and

procedure, Agriculture, Aliens,

Crewmembers, Employment,

Enforcement, Fashion Models, Forest

and Forest Products, Guam, Health

professions, Immigration, Labor,

Longshore work, Migrant labor, Nurse,

Penalties, Registered nurse, Reporting

and recordkeeping requirements,

Specialty occupation, Students, Wages.

29 CFR Part 506

Administrative practice and

procedures, Aliens, Crewmembers,

Employment, Enforcement,

Immigration, Labor, Longshore work,

Penalties, Reporting and recordkeeping

requirements.

Text of the Joint Interim Final Rule

For the reasons set forth in the

common preamble, the text of the joint

interim final rule as adopted by ETA

and the Wage and Hour Division, ESA,

and in this document appears below:

Subpart F—Attestations by Employers

Using Alien Crewmembers for Longshore

Activities in U.S. Ports

General Provisions

Sec.

lll.500 Purpose, procedure and

applicability of subparts F and G of this

part.

lll.501 Overview of responsibilities.

lll.502 Definitions.

lll.510 Employer attestations.

lll.520 Special provisions regarding

automated vessels.

Alaska Exception

lll.530 Special provisions regarding the

performance of longshore activities at

locations in the State of Alaska.

lll.531 Who may submit attestations for

locations in Alaska?

lll.532 Where and when should

attestations be submitted for locations in

Alaska?
3956 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

lll.533 What should be submitted for

locations in Alaska?

lll.534 The first attestation element for

locations in Alaska: Bona fide request for

dispatch of United States longshore

workers.

lll.535 The second attestation element

for locations in Alaska: Employment of

United States longshore workers.

lll.536 The third attestation element for

locations in Alaska: No intention or

design to influence bargaining

representative election.

lll.537 The fourth attestation element

for locations in Alaska: Notice of filing.

lll.538 Actions on attestations

submitted for filing for locations in

Alaska.

lll.539 Effective date and validity of

filed attestations for locations in Alaska.

lll.540 Suspension or invalidation of

filed attestations for locations in Alaska.

lll.541 Withdrawal of accepted

attestations for locations in Alaska.

Public Access

lll.550 Public access.

Appendix A to Subpart F—U.S. Seaports

Subpart G—Enforcement of the Limitations

Imposed on Employers Using Alien

Crewmembers for Longshore Activities in

U.S. Ports

Sec.

lll.600 Enforcement authority of

Administrator, Wage and Hour Division.

lll.605 Complaints and investigative

procedures.

lll.610 Automated vessel exception to

prohibition on utilization of alien

crewmember(s) to perform longshore

activity(ies) at a U.S. port.

lll.615 Cease and desist order.

lll.620 Civil money penalties and other

remedies.

lll.625 Written notice, service and

Federal Register publication of

Administrator’s determination.

lll.630 Request for hearing.

lll.635 Rules of practice for

administrative law judge proceedings.

lll.640 Service and computation of

time.

lll.645 Administrative law judge

proceedings.

lll.650 Decision and order of

administrative law judge.

lll.655 Secretary’s review of

administrative law judge’s decision.

lll.660 Administrative record.

lll.665 Notice to the Attorney General

and the Employment and Training

Administration.

lll.670

Federal Register notice of determination

of prevailing practice.

lll.675 Non-applicability of the Equal

Access to Justice Act.

Subpart F—Attestations by Employers

Using Alien Crewmembers for

Longshore Activities in U.S. Ports

General Provisions

§ lll.500 Purpose, procedure and

applicability of subparts F and G of this

part.

(a) Purpose. (1) Section 258 of the

Immigration and Nationality Act (‘‘Act’’)

prohibits nonimmigrant alien

crewmembers admitted to the United

States on D-visas from performing

longshore work at U.S. ports except in

five specific instances:

(i) Where the vessel’s country of

registration does not prohibit U.S.

crewmembers from performing

longshore work in that country’s ports

and nationals of a country (or countries)

which does not prohibit U.S.

crewmembers from performing

longshore work in that country’s ports

hold a majority of the ownership

interest in the vessel, as determined by

the Secretary of State (henceforth

referred to as the ‘‘reciprocity

exception’’);

(ii) Where there is in effect in a local

port one or more collective bargaining

agreement(s), each covering at least

thirty percent of the longshore workers,

and each permitting the activity to be

performed under the terms of such

agreement(s);

(iii) Where there is no collective

bargaining agreement covering at least

thirty percent of the longshore workers

at the particular port and an attestation

with accompanying documentation has

been filed with the Department of Labor

attesting that, among other things, the

use of alien crewmembers to perform a

particular activity of longshore work is

permitted under the prevailing practice

of the particular port (henceforth

referred to as the ‘‘prevailing practice

exception’’);

(iv) Where the longshore work is to be

performed at a particular location in the

State of Alaska and an attestation with

accompanying documentation has been

filed with the Department of Labor

attesting that, among other things,

before using alien crewmembers to

perform the activity specified in the

attestation, the employer will make a

bona fide request for and employ United

States longshore workers who are

qualified and available in sufficient

numbers from contract stevedoring

companies, labor organizations

recognized as exclusive bargaining

representatives of United States

longshore workers, and private dock

operators (henceforth referred to as the

‘‘Alaska exception’’); or

(v) Where the longshore work

involves an automated self-unloading

conveyor belt or vacuum-actuated

system on a vessel and the

Administrator has not previously

determined that an attestation must be

filed pursuant to this part as a basis for

performing those functions (henceforth

referred to as the ‘‘automated vessel

exception’’).

(2) The term ‘‘longshore work’’ does

not include the loading or unloading of

hazardous cargo, as determined by the

Secretary of Transportation, for safety

and environmental protection. The

Department of Justice, through the

Immigration and Naturalization Service

(INS), determines whether an employer

may use alien crewmembers for

longshore work at U.S. ports. In those

cases where an employer must file an

attestation in order to perform such

work, the Department of Labor shall be

responsible for accepting the filing of

such attestations. Subpart F of this part

sets forth the procedure for filing

attestations with the Department of

Labor for employers proposing to use

alien crewmembers for longshore work

at U.S. ports under the prevailing

practice exception, the Alaska

exception, and where it has been

determined that an attestation is

required under the automated vessel

exception listed in paragraph (a)(1)(iv)

of this section. Subpart G of this part

sets forth complaint, investigation, and

penalty provisions with respect to such

attestations.

(b) Procedure. (1) Under the

prevailing practice exception in sec.

258(c) of the Act, and in those cases

where it has been determined that an

attestation is required under the

automated vessel exception for

longshore work to be performed at

locations other than in the State of

Alaska, the procedure involves filing an

attestation with the Department of Labor

attesting that:

(i) The use of alien crewmembers for

a particular activity of longshore work is

the prevailing practice at the particular

port;

(ii) The use of alien crewmembers is

not during a strike or lockout nor

designed to influence the election of a

collective bargaining representative; and

(iii) Notice of the attestation has been

provided to the bargaining

representative of longshore workers in

the local port, or, where there is none,

notice has been provided to longshore

workers employed at the local port.
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3957

(2) Under the automated vessel

exception in sec. 258(c) of the Act, no

attestation is required in cases where

longshore activity consists of the use of

an automated self-unloading conveyor

belt or vacuum-actuated system on a

vessel. The legislation creates a

rebuttable presumption that the use of

alien crewmembers for the operation of

such automated systems is the

prevailing practice. In order to

overcome such presumption, it must be

shown by the preponderance of the

evidence submitted by any interested

party, that the use of alien crewmembers

for such activity is not the prevailing

practice at the particular port, that it is

during a strike or lockout, or that it is

intended or designed to influence an

election of a bargaining representative

for workers in the local port.

(3) Under the Alaska exception in sec.

258(d) of the Act, and in those cases

where it has been determined that an

attestation is required under the

automated vessel exception consisting

of the use of such equipment for

longshore work to be performed in the

State of Alaska, the procedure involves

filing an attestation with the Department

of Labor attesting that:

(i) The employer will make a bona

fide request for United States longshore

workers who are qualified and available

in sufficient numbers to perform the

activity at the particular time and

location from the parties to whom

notice has been provided under

paragraph (b)(3)(iv) (B) and (C) of this

section, except that:

(A) Wherever two or more contract

stevedoring companies which meet the

requirements of section 32 of the

Longshore and Harbor Workers’

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

signed a joint collective bargaining

agreement with a single labor

organization recognized as an exclusive

bargaining representative of United

States longshore workers within the

meaning of the National Labor Relations

Act (29 U.S.C. 141 et seq.), the employer

may request longshore workers from

only one such contract stevedoring

company, and

(B) A request for longshore workers to

an operator of a private dock may be

made only for longshore work to be

performed at that dock and only if the

operator meets the requirements of

section 32 of the Longshore and Harbor

Workers’ Compensation Act (33 U.S.C.

932);

(ii) The employer will employ all

United States longshore workers made

available in response to the request

made pursuant to paragraph (b)(3)(i) of

this section who are qualified and

available in sufficient numbers and who

are needed to perform the longshore

activity at the particular time and

location attested to;

(iii) The use of alien crewmembers for

such activity is not intended or

designed to influence and election of a

bargaining representative for workers in

the State of Alaska; and

(iv) Notice of the attestation has been

provided to:

(A) Labor organizations which have

been recognized as exclusive bargaining

representatives of United States

longshore workers within the meaning

of the National Labor Relations Act (29

U.S.C. 141 et seq.) and which make

available or intend to make available

workers to the particular location where

the longshore work is to be performed;

(B) Contract stevedoring companies

which employ or intend to employ

United States longshore workers at that

location; and

(C) Operators of private docks at

which the employer will use longshore

workers.

(c) Applicability. Subparts F and G of

this part apply to all employers who

seek to employ alien crewmembers for

longshore work at U.S. ports under the

prevailing practice exception, to all

employers who seek to employ alien

crewmembers for longshore work at

locations in the State of Alaska under

the Alaska exception, to all employers

claiming the automated vessel

exception, and to those cases where it

has been determined that an attestation

is required under the automated vessel

exception.

§llll.501 Overview of

responsibilities.

This section provides a context for the

attestation process, to facilitate

understanding by employers that may

seek to employ alien crewmembers for

longshore work under the prevailing

practice exception, under the Alaska

exception, and in those cases where an

attestation is necessary under the

automated vessel exception.

(a) Department of Labor’s

responsibilities. The United States

Department of Labor (DOL) administers

the attestation process. Within DOL, the

Employment and Training

Administration (ETA) shall have

responsibility for setting up and

operating the attestation process; the

Employment Standards

Administration’s Wage and Hour

Division shall be responsible for

investigating and resolving any

complaints filed concerning such

attestations.

(b) Employer attestation

responsibilities. (1) Each employer

seeking to use alien crewmembers for

longshore work at a local U.S. port

pursuant to the prevailing practice

exception or where an attestation is

required under the automated vessel

exception for longshore work to be

performed at locations other than in the

State of Alaska shall, as the first step,

submit an attestation on Form ETA

9033, as described in §llll.510 of

this part, to ETA at the address set forth

at §llll.510(b) of this part. If ETA

accepts the attestation for filing,

pursuant to §llll.510 of this part,

ETA shall return the cover form of the

accepted attestation to the employer,

and, at the same time, shall provide

notice of the filing to the Immigration

and Naturalization Service (INS) office

having jurisdiction over the port where

longshore work will be performed.

(2) Each employer seeking to use alien

crewmembers for longshore work at a

particular location in the State of Alaska

pursuant to the Alaska exception or

where an attestation is required under

the automated vessel exception for

longshore work to be performed at a

particular location in Alaska shall

submit, as a first step, an attestation on

Form ETA 9033–A, as described in

§ llll.533 of this part, to ETA at the

address of the Seattle regional office as

set forth at §llll.532 of this part.

The address appears in the instructions

to Form ETA 9033–A. ETA shall return

the cover form of the accepted

attestation to the employer, and, at the

same time, shall provide notice of the

filing to the INS office having

jurisdiction over the location where

longshore work will be performed.

(c) Complaints. Complaints

concerning misrepresentation in the

attestation, failure of the employer to

carry out the terms of the attestation, or

complaints that an employer is required

to file an attestation under the

automated vessel exception, may be

filed with the Wage and Hour Division,

according to the procedures set forth in

subpart G of this part. Complaints of

‘‘misrepresentation’’ may include

assertions that an employer has attested

to the use of alien crewmembers only

for a particular activity of longshore

work and has thereafter used such alien

crewmembers for another activity of

longshore work. If the Division

determines that the complaint presents

reasonable cause to warrant an

investigation, the Division shall then

investigate, and, where appropriate,

after an opportunity for a hearing, assess

sanctions and penalties. Subpart G of

this part further provides that interested

parties may obtain an administrative

law judge hearing on the Division’s

determination after an investigation and

may seek the Secretary’s review of the
3958 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

administrative law judge’s decision.

Subpart G of this part also provides that

a complainant may request that the

Wage and Hour Administrator issue a

cease and desist order in the case of

either alleged violation(s) of an

attestation or longshore work by alien

crewmember(s) employed by an

employer allegedly not qualified for the

claimed automated vessel exception.

Upon the receipt of such a request, the

Division shall notify the employer,

provide an opportunity for a response

and an informal meeting, and then rule

on the request, which shall be granted

if the preponderance of the evidence

submitted supports the complainant’s

position.

§llll.502 Definitions.

For the purposes of subparts F and G

of this part:

Accepted for filing means that a

properly completed attestation on Form

ETA 9033, including accompanying

documentation for each of the

requirements in §llll.510 (d)

through (f) of this part, or a properly

completed attestation on Form ETA

9033–A, including accompanying

documentation for the requirement in

§ llll.537 of this part in the case of

an attestation under the Alaska

exception, submitted by the employer or

its designated agent or representative

has been received and filed by the

Employment and Training

Administration of the Department of

Labor (DOL). (Unacceptable attestations

under the prevailing practice exception

are described at §llll.510(g)(2) of

this part. Unacceptable attestations

under the Alaska exception are

described at §llll.538(b) of this

part.)

Act and INA mean the Immigration

and Nationality Act, as amended, 8

U.S.C. 1101 et seq.

Activity means any activity relating to

loading cargo; unloading cargo;

operation of cargo-related equipment; or

handling of mooring lines on the dock

when a vessel is made fast or let go.

Administrative law judge means an

official appointed pursuant to 5 U.S.C.

3105.

Administrator means the

Administrator of the Wage and Hour

Division, Employment Standards

Administration, Department of Labor, or

such authorized representatives as may

be designated to perform any of the

functions of the Administrator under

subparts F and G of this part.

Attestation means documents

submitted by an employer attesting to

and providing accompanying

documentation to show that, under the

prevailing practice exception, the use of

alien crewmembers for a particular

activity of longshore work at a particular

U.S. port is the prevailing practice, and

is not during a strike or lockout nor

intended to influence an election of a

bargaining representative for workers;

and that notice of the attestation has

been provided to the bargaining

representative, or, where there is none,

to the longshore workers at the local

port. Under the Alaska exception, such

documents shall show that, before using

alien crewmen to perform longshore

work, the employer will make bona fide

requests for dispatch of United States

longshore workers who are qualified

and available in sufficient numbers and

that the employer will employ all such

United States longshore workers in

response to such a request for dispatch;

that the use of alien crewmembers is not

intended or designed to influence an

election of a bargaining representative

for workers in the State of Alaska; and

that notice of the attestation has been

provided to labor organizations

recognized as exclusive bargaining

representatives of United States

longshore workers, contract stevedoring

companies, and operators of private

docks at which the employer will use

longshore workers.

Attesting employer means an

employer who has filed an attestation.

Attorney General means the chief

official of the U.S. Department of Justice

or the Attorney General’s designee.

Automated vessel means a vessel

equipped with an automated selfunloading conveyor belt or vacuumactuated system which is utilized for

loading or unloading cargo between the

vessel and the dock.

Certifying Officer means a Department

of Labor official who makes

determinations about whether or not to

accept attestations:

(1) A regional Certifying Officer

designated by a Regional Administrator,

Employment and Training

Administration (RA) makes such

determinations in a regional office of the

Department;

(2) A national Certifying Officer

makes such determinations in the

national office of the USES.

Chief, Division of Foreign Labor

Certifications, USES means the chief

official of the Division of Foreign Labor

Certifications within the United States

Employment Service, Employment and

Training Administration, Department of

Labor, or the designee of the Chief,

Division of Foreign Labor Certifications,

USES.

Chief Administrative Law Judge

means the chief official of the Office of

the Administrative Law Judges of the

Department of Labor or the Chief

Administrative Law Judge’s designee.

Contract stevedoring company means

a stevedoring company which is

licensed to do business in the State of

Alaska and which meets the

requirements of section 32 of the

Longshore and Harbor Workers’

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

Crewmember means any

nonimmigrant alien admitted to the

United States to perform services under

sec. 101(a)(15)(D)(i) of the Act (8 U.S.C.

1101(a)(15)(D)(i)).

Date of filing means the date an

attestation is accepted for filing by ETA.

Department and DOL mean the

United States Department of Labor.

Director means the chief official of the

United States Employment Service

(USES), Employment and Training

Administration, Department of Labor, or

the Director’s designee.

Division means the Wage and Hour

Division of the Employment Standards

Administration, DOL.

Employer means a person, firm,

corporation, or other association or

organization, which suffers or permits,

or proposes to suffer or permit, alien

crewmembers to perform longshore

work at a port within the U.S. For

purposes of §§llll.530 through

llll.541, which govern the

performance of longshore activities by

alien crewmembers under the Alaska

exception, ‘‘employer’’ includes any

agent or representative designated by

the employer.

Employment and Training

Administration (ETA) means the agency

within the Department of Labor (DOL)

which includes the United States

Employment Service (USES).

Employment Standards

Administration (ESA) means the agency

within the Department of Labor (DOL)

which includes the Wage and Hour

Division.

Immigration and Naturalization

Service (INS) means the component of

the Department of Justice which makes

the determination under the Act on

whether an employer of alien

crewmembers may use such

crewmembers for longshore work at a

U.S. port.

Lockout means a labor dispute

involving a work stoppage, wherein an

employer withholds work from its

employees in order to gain a concession

from them.

Longshore work means any activity

(except safety and environmental

protection work as described in sec.

258(b)(2) of the Act) relating to the

loading or unloading of cargo, the

operation of cargo related equipment

(whether or not integral to the vessel),
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3959

or the handling of mooring lines on the

dock when the vessel is made fast or let

go, in the United States or the coastal

waters thereof.

Longshore worker means a U.S.

worker who performs longshore work.

Port means a geographic area, either

on a seacoast, lake, river or any other

navigable body of water, which contains

one or more publicly or privately owned

terminals, piers, docks, or maritime

facilities, which is commonly thought of

as a port by other government maritimerelated agencies, such as the Maritime

Administration. U.S. ports include, but

are not limited to, those listed in

Appendix A to this subpart.

Qualified and available in sufficient

numbers means the full complement of

qualified longshore workers needed to

perform the longshore activity, as

determined by industry standards in the

State of Alaska, including safety

considerations.

Regional Administrator, Employment

and Training Administration (RA)

means the chief official of the

Employment and Training

Administration (ETA) in a Department

of Labor (DOL) regional office.

Secretary means the Secretary of

Labor or the Secretary’s designee.

Strike means a labor dispute wherein

employees engage in a concerted

stoppage of work (including stoppage by

reason of the expiration of a collectivebargaining agreement) or engage in any

concerted slowdown or other concerted

interruption of operations.

Unanticipated emergency means an

unexpected and unavoidable situation,

such as one involving severe weather

conditions, natural disaster, or

mechanical breakdown, where cargo

must be immediately loaded on, or

unloaded from, a vessel.

United States is defined at 8 U.S.C.

1101(a)(38).

United States Employment Service

(USES) means the agency of the

Department of Labor, established under

the Wagner-Peyser Act, which is

charged with administering the national

system of public employment offices.

United States (U.S.) worker means a

worker who is a U.S. citizen, a U.S.

national, a permanent resident alien, or

any other worker legally permitted to

work indefinitely in the United States.

§llll.510 Employer attestations.

(a) Who may submit attestations? An

employer (or the employer’s designated

U.S. agent or representative) seeking to

employ alien crewmembers for a

particular activity of longshore work

under the prevailing practice exception

shall submit an attestation, provided

there is not in effect in the local port any

collective bargaining agreement

covering at least 30 percent of the

longshore workers. An attestation is

required for each port at which the

employer intends to use alien

crewmembers for longshore work. The

attestation shall include: A completed

Form ETA 9033, which shall be signed

by the employer (or the employer’s

designated agent or representative); and

facts and evidence prescribed in

paragraphs (d) through (f) of this

section. This §llll.510 shall not

apply in the case of longshore work

performed at a particular location in the

State of Alaska. The procedures

governing the filing of attestations under

the Alaska exception are set forth at

§§ llll.530 through llll.541.

(b) Where and when should

attestations be submitted? (1)

Attestations must be submitted, by U.S.

mail, private carrier, or facsimile

transmission to the U.S. Department of

Labor ETA Regional Office(s) which are

designated by the Chief, Division of

Foreign Labor Certifications, USES.

Attestations must be received and datestamped by DOL at least 14 calendar

days prior to the date of the first

performance of the intended longshore

activity, and shall be accepted for filing

or returned by ETA in accordance with

paragraph (g) of this section within 14

calendar days of the date received by

ETA. An attestation which is accepted

by ETA solely because it was not

reviewed within 14 days is subject to

subsequent invalidation pursuant to

paragraph (i) of this section. Every

employer filing an attestation shall have

an agent or representative with a United

States address. Such address shall be

clearly indicated on the Form ETA

9033. In order to ensure that an

attestation has been accepted for filing

prior to the date of the performance of

the longshore activity, employers are

advised to take mailing time into

account to make sure that ETA receives

the attestation at least 14 days prior to

the first performance of the longshore

activity.

(2) Unanticipated Emergencies. ETA

may accept for filing attestations

received after the 14-day deadline when

due to an unanticipated emergency, as

defined in §llll.502 of this part.

When an employer is claiming an

unanticipated emergency, it shall

submit documentation to support such

a claim. ETA shall then make a

determination on the validity of the

claim, and shall accept the attestation

for filing or return it in accordance with

paragraph (g) of this section. ETA shall

in no case accept an attestation received

later than the date of the first

performance of the activity.

(c) What should be submitted? (1)

Form ETA 9033 with accompanying

documentation. For each port, a

completed and dated original Form ETA

9033, or facsimile transmission thereof,

containing the required attestation

elements and the original signature of

the employer (or the employer’s

designated agent or representative) shall

be submitted, along with two copies of

the completed, signed, and dated Form

ETA 9033. (If the attestation is

submitted by facsimile transmission, the

attestation containing the original

signature shall be maintained at the U.S.

business address of the employer’s

designated agent or representative).

Copies of Form ETA 9033 are available

at all Department of Labor ETA Regional

Offices and at the National Office. In

addition, the employer shall submit two

sets of all facts and evidence to show

compliance with each of the attestation

elements as prescribed by the regulatory

standards in paragraphs (d) through (f)

of this section. In the case of an

investigation pursuant to subpart G of

this part, the employer shall have the

burden of proof to establish the validity

of each attestation. The employer shall

maintain in its records at the office of

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

years from the date of filing, sufficient

documentation to meet its burden of

proof, which shall at a minimum

include the documentation described in

this §llll.510, and shall make the

documents available to Department of

Labor officials upon request.

Whenever any document is submitted

to a Federal agency or retained in the

employer’s records pursuant to this part,

the document either shall be in the

English language or shall be

accompanied by a written translation

into the English language certified by

the translator as to the accuracy of the

translation and his/her competency to

translate.

(2) Statutory precondition regarding

collective bargaining agreements. (i) The

employer may file an attestation only

when there is no collective bargaining

agreement in effect in the port covering

30 percent or more of the longshore

workers in the port. The employer shall

attest on the Form ETA 9033 that no

such collective bargaining agreement

exists at the port at the time that the

attestation is filed.

(ii) The employer is not required to

submit with the Form ETA 9033

documentation substantiating that there

is no collective bargaining agreement in

effect in the port covering 30 percent or

more of the longshore workers. If a

complaint is filed which presents

reasonable cause to believe that such an

agreement exists, the Department shall
3960 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

conduct an investigation. In such an

investigation, the employer shall have

the burden of proving that no such

collective bargaining agreement exists.

(3) Ports for which attestations may be

filed. Employers may file an attestation

for a port which is listed in Appendix

A (U.S. Seaports) to this subpart.

Employers may also file an attestation

for a particular location not in

Appendix A to this subpart if additional

facts and evidence are submitted with

the attestation to demonstrate that the

location is a port, meeting all of the

criteria as defined by §llll.502 of

this part.

(4) Attestation elements. The

attestation elements referenced in

paragraph (c)(1) of this section are

mandated by sec. 258(c)(1)(B) of the Act

(8 U.S.C. 1288(c)(1)(B)). Section

258(c)(1)(B) of the Act requires

employers who seek to have alien

crewmembers engage in a longshore

activity to attest as follows:

(i) The performance of the activity by

alien crewmembers is permitted under

the prevailing practice of the particular

port as of the date of filing of the

attestation;

(ii) The use of the alien crewmembers

for such activity is not during a strike

or lockout in the course of a labor

dispute, and is not intended or designed

to influence an election of a bargaining

representative for workers in the local

port; and

(iii) Notice of the attestation has been

provided by the owner, agent,

consignee, master, or commanding

officer to the bargaining representative

of longshore workers in the local port,

or, where there is no such bargaining

representative, notice has been provided

to longshore workers employed at the

local port.

(d) The first attestation element:

prevailing practice. For an employer to

be in compliance with the first

attestation element, it is required to

have been the prevailing practice during

the 12-month period preceding the

filing of the attestation, for a particular

activity of longshore work at the

particular port to be performed by alien

crewmembers. For each port, a

prevailing practice can exist for any of

four different types of longshore work:

loading of cargo, unloading of cargo,

operation of cargo-related equipment, or

handling of mooring lines. It is thus

possible that at a particular port it is the

prevailing practice for alien

crewmembers to unload vessels but not

the prevailing practice to load them. An

employer shall indicate on the

attestation form which of the four

longshore activities it is claiming is the

prevailing practice for such work to be

performed by alien crewmembers.

(1) Establishing a prevailing practice.

(i) In establishing that a particular

activity of longshore work is the

prevailing practice at a particular port,

an employer shall submit facts and

evidence to show that in the 12-month

period preceding the filing of the

attestation, one of the following

conditions existed:

(A) Over fifty percent of vessels

docking at the port used alien

crewmembers for the activity; or

(B) Alien crewmembers made up over

fifty percent of the workers in the port

who engaged in the activity.

(ii) Prevailing practice after Secretary

of State determination of nonreciprocity. Section 258(d) of the Act

provides a reciprocity exception

(separate from the prevailing practice

exception) to the prohibition on

performance of longshore work by alien

crewmembers in U.S. ports. However,

this reciprocity exception becomes

nonapplicable where the Secretary of

State determines that, for a particular

activity of longshore work, a particular

country (by law, regulation, or practice)

prohibits such activity by U.S.

crewmembers in its ports. When the

Secretary of State places a country on

the non-reciprocity list (which means,

for the purposes of this section,

Prohibitions on longshore work by U.S.

nationals; listing by country at 22 CFR

89.1), crewmembers on vessels from that

country (that is, vessels that are

registered in that country or vessels

whose majority ownership interest is

held by nationals of that country) are

not permitted to perform longshore

work in U.S. waters, absent applicability

of some exception other than the

reciprocity exception. The Secretary of

State’s determination has the following

effects in the establishment of a

prevailing practice for a particular

longshore activity at a particular U.S.

port for purposes of the prevailing

practice exception.

(A) An employer from any country,

other than the country which is placed

on the non-reciprocity list, may include

the longshore activities performed by

alien crewmembers on all vessels in

establishing the prevailing practice for a

particular longshore activity in a

particular port.

(B) An employer from a country

which is placed on the non-reciprocity

list may file an attestation for the

prevailing practice exception under the

standards and requirements established

in this subpart F (except as provided in

paragraph (d)(1)(ii)(C) of this section),

provided that the attestation is filed at

least 12 months after the date on which

the employer’s country is placed on the

list.

(C) An employer from a country

which is placed on the non-reciprocity

list may file an attestation pursuant to

the prevailing practice exception earlier

than 12 months from the date on which

the employer’s country is placed on the

list, except that the following

restrictions shall apply to such

attestation:

(1) The employer shall submit facts

and evidence to show that, for the 12-

month period preceding the date of the

attestation, the use of alien

crewmembers to perform a particular

activity of longshore work was

permitted by the prevailing practice in

the port (as defined in paragraph

(d)(1)(i) of this section) without

considering or including such activity

by crewmembers on vessels from the

employer’s country; or

(2) The employer shall submit facts

and evidence (including data on

activities performed by crewmembers

on vessels from the employer’s country)

to show that the use of alien

crewmembers to perform a particular

activity of longshore work was

permitted by the prevailing practice in

the port (as defined in paragraph

(d)(1)(i) of this section) for one of two

periods—

(i) For the employer whose country

has not previously been on the nonreciprocity list, the period is the

continuous 12-month period prior to

May 28, 1991 (the effective date of

section 258 of the Act); or

(ii) For the employer whose country

was at some time on the non-reciprocity

list, but was subsequently removed from

the non-reciprocity list and then

restored to the non-reciprocity list (on

one or more occasions), the period is the

last continuous 12-month period during

which the employer’s country was not

under the reciprocity exception (that is,

was listed on the non-reciprocity list).

(iii) For purposes of this paragraph

(d)(1):

(A) ‘‘Workers in the port engaged in

the activity’’ means any person who

performed the activity in any calendar

day;

(B) Vessels shall be counted each time

they dock at the particular port):

(C) Vessels exempt from section 258

of the INA for safety and environmental

protection shall not be included in

counting the number of vessels which

dock at the port (see Department of

Transportation Regulations); and

(D) Automated vessels shall not be

included in counting the number of

vessels which dock at the port. For

establishing a prevailing practice under
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3961

the automated vessel exception see

§ llll.520 of this part.

(2) Documentation. In assembling the

facts and evidence required by

paragraph (d)(1) of this section, the

employer may consult with the port

authority which has jurisdiction over

the local port, the collective bargaining

representative(s) of longshore workers at

the local port, other employers, or any

other entity which is familiar with the

practices at the port. Such

documentation shall include a written

summary of a survey of the experience

of shipmasters who entered the local

port in the previous year; or a letter,

affidavit, or other written statement

from an appropriate local port authority

regarding the use of alien crewmembers

to perform the longshore activity at the

port in the previous year; or other

documentation of comparable weight.

Written statements from collective

bargaining representatives and/or

shipping agents with direct knowledge

of practices regarding the use of alien

crewmembers in the local port may also

be pertinent. Such documentation shall

accompany the Form ETA 9033, and

any underlying documentation which

supports the employer’s burden of proof

shall be maintained in the employer’s

records at the office of the U.S. agent as

required by paragraph (c)(1) of this

section.

(e) The second attestation element: no

strike or lockout; no intention or design

to influence bargaining representative

election. (1) The employer shall attest

that, at the time of submitting the

attestation, there is not a strike or

lockout in the course of a labor dispute

covering the employer’s activity, and

that it will not use alien crewmembers

during a strike or lockout after filing the

attestation. The employer shall also

attest that the employment of such

aliens is not intended or designed to

influence an election for a bargaining

representative for workers in the local

port. Labor disputes for purposes of this

attestation element relate only to those

involving longshore workers at the port

of intended employment. This

attestation element applies to strikes

and lockouts and elections of bargaining

representatives at the local port where

the use of alien crewmembers for

longshore work is intended.

(2) Documentation. As documentation

to substantiate the requirement in

paragraph (e)(1) of this section, an

employer may submit a statement of the

good faith efforts made to determine

whether there is a strike or lockout at

the particular port, as, for example, by

contacting the port authority or the

collective bargaining representative for

longshore workers at the particular port.

(f) The third attestation element:

notice of filing. The employer of alien

crewmembers shall attest that at the

time of filing the attestation, notice of

filing has been provided to the

bargaining representative of the

longshore workers in the local port, or,

where there is no such bargaining

representative, notice of the filing has

been provided to longshore workers

employed at the local port through

posting in conspicuous locations and

through other appropriate means.

(1) Notification of bargaining

representative. No later than the date

the attestation is received by DOL to be

considered for filing, the employer of

alien crewmembers shall notify the

bargaining representative (if any) of

longshore workers at the local port that

the attestation is being submitted to

DOL. The notice shall include a copy of

the Form ETA 9033, shall state the

activity(ies) for which the attestation is

submitted, and shall state in that notice

that the attestation and accompanying

documentation are available at the

national office of ETA for review by

interested parties. The employer may

have its owner, agent, consignee,

master, or commanding officer provide

such notice. Notices under this

paragraph (f)(1) shall include the

following statement: ‘‘Complaints

alleging misrepresentation of material

facts in the attestation and/or failure to

comply with the terms of the attestation

may be filed with any office of the Wage

and Hour Division of the United States

Department of Labor.’’

(2) Posting notice where there is no

bargaining representative. If there is no

bargaining representative of longshore

workers at the local port when the

employer submits an attestation to ETA,

the employer shall provide written

notice to the port authority for

distribution to the public on request. In

addition, the employer shall post one or

more written notices at the local port,

stating that the attestation with

accompanying documentation has been

submitted, the activity(ies) for which

the attestation has been submitted, and

that the attestation and accompanying

documentation are available at the

national office of ETA for review by

interested parties. Such posted notice

shall be clearly visible and

unobstructed, and shall be posted in

conspicuous places where the longshore

workers readily can read the posted

notice on the way to or from their

duties. Appropriate locations for posting

such notices include locations in the

immediate proximity of mandatory Fair

Labor Standards Act wage and hour

notices and Occupational Safety and

Health Act occupational safety and

health notices. The notice shall include

a copy of the Form ETA 9033 filed with

DOL, shall provide information

concerning the availability of

supporting documents for examination

at the national office of ETA, and shall

include the following statement:

‘‘Complaints alleging misrepresentation

of material facts in the attestation and/

or failure to comply with the terms of

the attestation may be filed with any

office of the Wage and Hour Division of

the United States Department of Labor.’’

(3) Documentation. The employer

shall provide a statement setting forth

the name and address of the person to

whom the notice was provided and

where and when the notice was posted

and shall attach a copy of the notice.

(g) Actions on attestations submitted

for filing. Once an attestation has been

received from an employer, a

determination shall be made by the

regional Certifying Officer whether to

accept the attestation for filing or return

it. The regional Certifying Officer may

request additional explanation and/or

documentation from the employer in

making this determination. An

attestation which is properly filled out

and which includes accompanying

documentation for each of the

requirements set forth at

§ llll.510(d) through (f) shall be

accepted for filing by ETA on the date

it is signed by the regional Certifying

Officer unless it falls within one of the

categories set forth in paragraph (g)(2) of

this section. Once an attestation is

accepted for filing, ETA shall then

follow the procedures set forth in

paragraph (g)(1) of this section. Upon

acceptance of the employer’s attestation

by ETA, the attestation and

accompanying documentation will be

forwarded and shall be available in a

timely manner for public examination at

the ETA national office. ETA shall not

consider information contesting an

attestation received by ETA prior to the

determination to accept or return the

attestation for filing. Such information

shall not be made part of ETA’s

administrative record on the attestation,

but shall be referred to ESA to be

processed as a complaint pursuant to

subpart G of this part if the attestation

is accepted by ETA for filing.

(1) Acceptance. (i) If the attestation is

properly filled out and includes

accompanying documentation for each

of the requirements at §llll.510(d)

through (f), and does not fall within one

of the categories set forth at paragraph

(g)(2) of this section, ETA shall accept

the attestation for filing, provide

notification to the INS office having

jurisdiction over the port where

longshore work will be performed, and
3962 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

return to the employer, or the

employer’s agent or representative at a

U.S. address, one copy of the attestation

form submitted by the employer, with

ETA’s acceptance indicated thereon.

The employer may then use alien

crewmembers for the particular activity

of longshore work at the U.S. port cited

in the attestation in accordance with

INS regulations.

(ii) DOL is not the guarantor of the

accuracy, truthfulness or adequacy of an

attestation accepted for filing.

(2) Unacceptable attestations. ETA

shall not accept an attestation for filing

and shall return such attestation to the

employer, or the employer’s agent or

representative at a U.S. address, when

one of the following conditions exists:

(i) When the Form ETA 9033 is not

properly filled out. Examples of

improperly filled out Form ETA 9033’s

include instances where the employer

has neglected to check all the necessary

boxes, or where the employer has failed

to include the name of the port where

it intends to use the alien crewmembers

for longshore work, or where the

employer has named a port that is not

listed in Appendix A and has failed to

submit facts and evidence to support a

showing that the location is a port as

defined by §llll.502, or when the

employer has failed to sign the

attestation or to designate an agent in

the United States;

(ii) When the Form ETA 9033 with

accompanying documentation is not

received by ETA at least 14 days prior

to the date of performance of the first

activity indicated on the Form ETA

9033; unless the employer is claiming

an unanticipated emergency, has

included documentation which

supports such claim, and ETA has

found the claim to be valid;

(iii) When the Form ETA 9033 does

not include accompanying

documentation for each of the

requirements set forth at §llll.510

(d) through (f);

(iv) When the accompanying

documentation required by paragraph

(c) of this section submitted by the

employer, on its face, is inconsistent

with the requirements set forth at

§ llll.510 (d) through (f). Examples

of such a situation include instances

where the Form ETA 9033 pertains to

one port and the accompanying

documentation to another; where the

Form ETA 9033 pertains to one activity

of longshore work and the

accompanying documentation obviously

refers to another; or where the

documentation clearly indicates that

only thirty percent, instead of the

required fifty percent, of the activity

attested to is performed by alien

crewmembers;

(v) When the Administrator, Wage

and Hour Division, has notified ETA, in

writing, after an investigation pursuant

to subpart G of this part, that the

particular activity of longshore work

which the employer has attested is the

prevailing practice at a particular port,

is not, in fact, the prevailing practice at

the particular port;

(vi) When the Administrator, Wage

and Hour Division, has notified ETA, in

writing, that a cease and desist order has

been issued pursuant to subpart G of

this part, with respect to the attesting

employer’s performance of the

particular activity and port, in violation

of a previously accepted attestation;

(vii) When the Administrator, Wage

and Hour Division, has notified ETA, in

writing, after an investigation pursuant

to subpart G of this part, that the

particular employer has misrepresented

or failed to comply with an attestation

previously submitted and accepted for

filing, but in no case for a period of

more than one year after the date of the

Administrator’s notice and provided

that INS has not advised ETA that the

prohibition is in effect for a lesser

period; or

(viii) When the Administrator, Wage

and Hour Division, has notified ETA, in

writing, that the employer has failed to

comply with any penalty, sanction, or

other remedy assessed in a final agency

action following an investigation by the

Wage and Hour Division pursuant to

subpart G of this part.

(3) Resubmission. If the attestation is

not accepted for filing pursuant to the

categories set forth in paragraph (g)(2) of

this section, ETA shall return to the

employer, or the employer’s agent or

representative, at a U.S. address, the

attestation form and accompanying

documentation submitted by the

employer. ETA shall notify the

employer, in writing, of the reason(s)

that the attestation is unacceptable.

When an attestation is found to be

unacceptable pursuant to paragraphs

(g)(2) (i) through (iv) of this section, the

employer may resubmit the attestation

with the proper documentation. When

an attestation is found to be

unacceptable pursuant to paragraphs

(g)(2) (v) through (viii) of this section

and returned, such action shall be the

final decision of the Secretary of Labor.

(h) Effective date and validity of filed

attestations. An attestation is filed and

effective as of the date it is accepted and

signed by the regional Certifying Officer.

Such attestation is valid for the 12-

month period beginning on the date of

acceptance for filing, unless suspended

or invalidated pursuant to subpart G of

this part or paragraph (i) of this section.

The filed attestation expires at the end

of the 12-month period of validity.

(i) Suspension or invalidation of filed

attestations. Suspension or invalidation

of an attestation may result from

enforcement action(s) under subpart G

of this part (i.e., investigation(s)

conducted by the Administrator or cease

and desist order(s) issued by the

Administrator regarding the employer’s

misrepresentation in or failure to carry

out its attestation); or from a discovery

by ETA that it made an error in

accepting the attestation because such

attestation falls within one of the

categories set forth in paragraph (g)(2) of

this section.

(1) Result of Wage and Hour Division

action. Upon the determination of a

violation under subpart G of this part,

the Administrator shall, pursuant to

§ llll.660(b), notify the Attorney

General of the violation and of the

Administrator’s notice to ETA.

(2) Result of ETA action. If, after

accepting an attestation for filing, ETA

finds that the attestation is unacceptable

because it falls within one of the

categories set forth at paragraph (g)(2) of

this section, and as a result, ETA

suspends or invalidates the attestation,

ETA shall notify the Attorney General of

such suspension or invalidation and

shall return a copy of the attestation

form to the employer, or the employer’s

agent or representative, at a U.S.

address. ETA shall notify the employer,

in writing, of the reason(s) that the

attestation is suspended or invalidated.

When an attestation is found to be

suspended or invalidated pursuant to

paragraphs (g)(2) (i) through (iv) of this

section, the employer may resubmit the

attestation with the proper

documentation. When an attestation is

suspended or invalidated because it

falls within one of the categories in

paragraphs (g)(2) (v) through (viii) of

this section, such action shall be the

final decision of the Secretary of Labor,

except as set forth in subpart G of this

part.

(j) Withdrawal of accepted

attestations. (1) An employer who has

submitted an attestation which has been

accepted for filing may withdraw such

attestation at any time before the 12-

month period of its validity terminates,

unless the Administrator has found

reasonable cause under subpart G to

commence an investigation of the

particular attestation. Such withdrawal

may be advisable, for example, when

the employer learns that the particular

activity(ies) of longshore work which it

has attested is the prevailing practice to

perform with alien crewmembers may

not, in fact, have been the prevailing
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3963

practice at the particular port at the time

of filing. Requests for such withdrawals

shall be in writing and shall be directed

to the regional Certifying Officer.

(2) Withdrawal of an attestation shall

not affect an employer’s liability with

respect to any failure to meet the

conditions attested to which took place

before the withdrawal, or for

misrepresentations in an attestation.

However, if an employer has not yet

performed the particular longshore

activity(ies) at the port in question, the

Administrator will not find reasonable

cause to investigate unless it is alleged,

and there is reasonable cause to believe,

that the employer has made

misrepresentations in the attestation or

documentation thereof, or that the

employer has not in fact given the

notice attested to.

(Approved by the Office of Management and

Budget under Control No. 1205–0309)

§llll.520 Special provisions

regarding automated vessels.

In general, an attestation is not

required in the case of a particular

activity of longshore work consisting of

the use of automated self-unloading

conveyor belt or vacuum-actuated

systems on a vessel. The legislation

creates a rebuttable presumption that

the use of alien crewmembers for the

operation of such automated systems is

the prevailing practice. In order to

overcome such presumption, it must be

shown by the preponderance of the

evidence submitted by any interested

party, that the use of alien crewmembers

for such activity is not the prevailing

practice. Longshore work involving the

use of such equipment shall be exempt

from the attestation requirement only if

the activity consists of using that

equipment. If the automated equipment

is not used in the particular activity of

longshore work, an attestation is

required as described under

§ llll.510 of this part if it is the

prevailing practice in the port to use

alien crewmembers for this work, except

that in all cases, where an attestation is

required for longshore work to be

performed at a particular location in the

State of Alaska, an employer shall file

such attestation under the Alaska

exception pursuant to §§llll.530

through llll.541 on Form ETA

9033–A. When automated equipment is

used in the particular activity of

longshore work, an attestation is

required only if the Administrator finds,

based on a preponderance of the

evidence which may be submitted by

any interested party, that the

performance of the particular activity of

longshore work is not the prevailing

practice at the port, or was during a

strike or lockout or intended to

influence an election of a bargaining

representative for workers in the local

port, or if the Administrator issues a

cease and desist order against use of the

automated equipment without such

attestation.

(a) Procedure when attestation is

required. If it is determined pursuant to

subpart G of this part that an attestation

is required for longshore work

consisting of the use of automated

equipment at a location other than in

the State of Alaska, the employer shall

comply with all the requirements set

forth at §llll.510 of this part

except paragraph (d) of §llll.510.

In lieu of complying with

§ llll.510(d) of this part, the

employer shall comply with paragraph

(b) of this section. If it is determined

pursuant to subpart G of this part that

an attestation is required for longshore

work consisting of the use of automated

equipment at a particular location in the

State of Alaska, the employer shall

comply with all the requirements set

forth at §§llll.530 through

llll.541 of this part.

(b) The first attestation element:

prevailing practice for automated

vessels. For an employer to be in

compliance with the first attestation

element, it is required to have been the

prevailing practice that over fifty

percent (as described in paragraph (b)(1)

of this section) of a particular activity of

longshore work which was performed

through the use of automated selfunloading conveyor belt or vacuumactuated equipment at the particular

port during the 12-month period

preceding the filing of the attestation,

was performed by alien crewmembers.

For purposes of this paragraph (b), only

automated vessels shall be included in

counting the number of vessels which

dock at the port.

(1) Establishing a prevailing practice.

(i) In establishing that the use of alien

crewmembers to perform a particular

activity of longshore work consisting of

the use of self-unloading conveyor belt

or vacuum-actuated systems on a vessel

is the prevailing practice at a particular

port, an employer shall submit facts and

evidence to show that in the 12-month

period preceding the filing of the

attestation, one of the following

conditions existed:

(A) Over fifty percent of the

automated vessels docking at the port

used alien crewmembers for the activity

(for purposes of this paragraph (b)(1), a

vessel shall be counted each time it

docks at the particular port); or

(B) Alien crewmembers made up over

fifty percent of the workers who

performed the activity with respect to

such automated vessels.

(ii) Prevailing practice after Secretary

of State determination of nonreciprocity. Section 258(d) of the Act

provides a reciprocity exception

(separate from the prevailing practice

exception) to the prohibition on

performance of longshore work by alien

crewmembers in U.S. ports. However,

this reciprocity exception becomes

nonapplicable where the Secretary of

State determines that, for a particular

activity of longshore work, a particular

country (by law, regulation, or practice)

prohibits such activity by U.S.

crewmembers in its ports. When the

Secretary of State places a country on

the non-reciprocity list (which means,

for the purposes of this section,

Prohibitions on longshore work by U.S.

nationals; listing by country at 22 CFR

89.1), crewmembers on vessels from that

country (that is, vessels that are

registered in that country or vessels

whose majority ownership interest is

held by nationals of that country) are

not permitted to perform longshore

work in U.S. waters, absent applicability

of some exception other than the

reciprocity exception. The Secretary of

State’s determination has the following

effects in the establishment of a

prevailing practice for a particular

longshore activity at a particular U.S.

port for purposes of the prevailing

practice exception.

(A) An employer from any country,

other than the country which is placed

on the non-reciprocity list, may include

the longshore activities performed by

alien crewmembers on all vessels in

establishing the prevailing practice for a

particular longshore activity in a

particular port.

(B) An employer from a country

which is placed on the non-reciprocity

list may file an attestation for the

prevailing practice exception under the

standards and requirements established

in this subpart F (except as provided in

paragraph (b)(1)(ii)(C) of this section),

provided that the attestation is filed at

least 12 months after the date on which

the employer’s country is placed on the

list.

(C) An employer from a country

which is placed on the non-reciprocity

list may file an attestation pursuant to

the prevailing practice exception earlier

than 12 months from the date on which

the employer’s country is placed on the

list, except that the following

restrictions shall apply to such

attestation:

(1) The employer shall submit facts

and evidence to show that, for the 12-

month period preceding the date of the

attestation, the use of alien
3964 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

crewmembers to perform a particular

activity of longshore work was

permitted by the prevailing practice in

the port (as defined in paragraph

(d)(1)(i) of this section) without

considering or including such activity

by crewmembers on vessels from the

employer’s country; or

(2) The employer shall submit facts

and evidence (including data on

activities performed by crewmembers

on vessels from the employer’s country)

to show that the use of alien

crewmembers to perform a particular

activity of longshore work was

permitted by the prevailing practice in

the port (as defined in paragraph

(b)(1)(i) of this section) for one of two

periods—

(i) For the employer whose country

has not previously been on the nonreciprocity list, the period is the

continuous 12-month period prior to

May 28, 1991 (the effective date of

section 258 of the Act); or

(ii) For the employer whose country

was at some time on the non-reciprocity

list, but was subsequently removed from

the non-reciprocity list and then

restored to the non-reciprocity list (on

one or more occasions), the period is the

last continuous 12-month period during

which the employer’s country was not

under the reciprocity exception (that is,

was listed on the non-reciprocity list).

(2) Documentation. In assembling the

documentation described in paragraph

(b)(1) of this section, the employer may

consult with the port authority which

has jurisdiction over the local port, the

collective bargaining representative(s) of

longshore workers at the local port,

other employers, or any other entity

which is familiar with the practices at

the port. The documentation shall

include a written summary of a survey

of the experience of shipmasters who

entered the local port in the previous

year; or a letter, affidavit, or other

written statement from an appropriate

local port authority regarding the use of

alien crewmembers to perform the

longshore activity at the port in the

previous year; or other documentation

of comparable weight. Written

statements from collective bargaining

representatives and/or shipping agents

with direct knowledge of practices

regarding the use of alien crewmembers

may also be pertinent. Such

documentation shall accompany the

Form ETA 9033, and any underlying

documentation which supports the

employer’s burden of proof shall be

maintained in the employer’s records at

the office of the U.S. agent as required

under §llll.510(c)(1) of this part.

(Approved by the Office of Management and

Budget under Control No. 1205–0309)

Alaska Exception

§llll.530 Special provisions

regarding the performance of longshore

activities at locations in the State of Alaska.

Applicability. Section §llll.510

of this part shall not apply to longshore

work performed at locations in the State

of Alaska. The performance of longshore

work by alien crewmembers at locations

in the State of Alaska shall instead be

governed by §§llll.530 through

llll.541. The use of alien

crewmembers to perform longshore

work in Alaska consisting of the use of

an automated self-unloading conveyor

belt or vacuum-actuated system on a

vessel shall continue to be governed by

the provisions of §llll.520 of this

part, except that, if the Administrator

finds, based on a preponderance of the

evidence which may be submitted by

any interested party, that an attestation

is required because the performance of

the particular activity of longshore work

is not the prevailing practice at the

location in the State of Alaska, or was

during a strike or lockout or intended to

influence an election of a bargaining

representative for workers at that

location, or if the Administrator issues

a cease and desist order against use of

the automated equipment without such

an attestation, the required attestation

shall be filed pursuant to the Alaska

exception at §§llll.530 through

llll.541 and not the prevailing

practice exception at §llll.510.

§llll.531 Who may submit

attestations for locations in Alaska?

In order to use alien crewmembers to

perform longshore activities at a

particular location in the State of Alaska

an employer shall submit an attestation

on Form ETA 9033–A. As noted at

§ llll.502, ‘‘Definitions,’’ for

purposes of §§llll.530 through

llll.541, which govern the

performance of longshore activities by

alien crewmembers under the Alaska

exception, ‘‘employer’’ includes any

agent or representative designated by

the employer. An employer may file a

single attestation for multiple locations

in the State of Alaska.

§llll.532 Where and when should

attestations be submitted for locations in

Alaska?

(a) Attestations shall be submitted, by

U.S. mail, private carrier, or facsimile

transmission to the U.S. Department of

Labor regional office of the Employment

and Training Administration in Seattle,

Washington. Except as provided in

paragraph (b) of this section, attestations

shall be received and date-stamped by

the Department at least 30 calendar days

prior to the date of the first performance

of the longshore activity. The attestation

shall be accepted for filing or returned

by ETA in accordance with

§ llll.538 within 14 calendar days

of the date received by ETA. An

attestation which is accepted by ETA

solely because it was not reviewed

within 14 days is subject to subsequent

invalidation pursuant to §llll.540

of this part. An employer filing an

attestation shall have an agent or

representative with a United States

address. Such address shall be clearly

indicated on the Form ETA 9033–A. In

order to ensure that an attestation has

been accepted for filing prior to the date

of the first performance of the longshore

activity, employers are advised to take

mailing time into account to make sure

that ETA receives the attestation at least

30 days prior to the first performance of

the longshore activity.

(b) Late filings. ETA may accept for

filing attestations received after the 30-

day deadline where the employer could

not have reasonably anticipated the

need to file an attestation for the

particular location at that time. When an

employer states that it could not have

reasonably anticipated the need to file

the attestation at that time, it shall

submit documentation to ETA to

support such a claim. ETA shall then

make a determination on the validity of

the claim and shall accept the

attestation for filing or return it in

accordance with §llll.538 of this

part. ETA in no case shall accept an

attestation received less than 24 hours

prior to the first performance of the

activity.

§llll.533 What should be submitted

for locations in Alaska?

(a) Form ETA 9033–A with

accompanying documentation. A

completed and dated original Form ETA

9033–A, or facsimile transmission

thereof, containing the required

attestation elements and the original

signature of the employer or the

employer’s agent or designated

representative, along with two copies of

the completed, signed, and dated Form

ETA 9033–A shall be submitted to ETA.

(If the attestation is submitted by

facsimile transmission, the attestation

containing the original signature shall

be maintained at the U.S. business

address of the employer’s designated

agent or representative). Copies of Form

ETA 9033–A are available at all

Department of Labor Regional offices

and at the National office. In addition,

the employer shall submit two sets of

facts and evidence to show compliance
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3965

with the fourth attestation element at

§ llll.537 of this part. In the case

of an investigation pursuant to subpart

G of this part, the employer has the

burden of proof to establish the validity

of each attestation. The employer shall

maintain in its records at the office of

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

years from the date of filing, sufficient

documentation to meet its burden of

proof, which shall at a minimum

include the documentation described in

§§ llll.530 through ————.541,

and shall make the documents available

to Department of Labor officials upon

request. Whenever any document is

submitted to a Federal agency or

retained in the employer’s records

pursuant to this part, the document

shall either be in the English language

or shall be accompanied by a written

translation into the English language

certified by the translator as to the

accuracy of the translation and his/her

competency to translate.

(b) Attestation elements. The

attestation elements referenced in

§§ llll.534 through llll.537 of

this part are mandated by Sec. 258(d)(1)

of the Act (8 U.S.C. 1288(d)(1)). Section

258(d)(1) of the Act requires employers

who seek to have alien crewmembers

engage in longshore activity at locations

in the State of Alaska to attest as

follows:

(1) The employer will make a bona

fide request for United States longshore

workers who are qualified and available

in sufficient numbers to perform the

activity at the particular time and

location from the parties to whom

notice has been provided under

§ llll.537(a)(1) (ii) and (iii), except

that:

(i) Wherever two or more contract

stevedoring companies have signed a

joint collective bargaining agreement

with a single labor organization

recognized as an exclusive bargaining

representative of United States

longshore workers within the meaning

of the National Labor Relations Act (29

U.S.C. 141 et seq.), the employer may

request longshore workers from only

one such contract stevedoring company,

and

(ii) A request for longshore workers to

an operator of a private dock may be

made only for longshore work to be

performed at that dock and only if the

operator meets the requirements of

section 32 of the Longshore and Harbor

Workers’ Compensation Act (33 U.S.C.

932);

(2) The employer will employ all

United States longshore workers made

available in response to the request

made pursuant to §llll.534(a)(1)

who are qualified and available in

sufficient numbers and who are needed

to perform the longshore activity at the

particular time and location to which

the employer has attested;

(3) The use of alien crewmembers for

such activity is not intended or

designed to influence an election of a

bargaining representative for workers in

the State of Alaska; and

(4) Notice of the attestation has been

provided to:

(i) Labor organizations which have

been recognized as exclusive bargaining

representatives of United States

longshore workers within the meaning

of the National Labor Relations Act (29

U.S.C. 141 et seq.) and which make

available or intend to make available

workers to the particular location where

the longshore work is to be performed;

(ii) Contract stevedoring companies

which employ or intend to employ

United States longshore workers at that

location; and

(iii) Operators of private docks at

which the employer will use longshore

workers.

§llll.534 The first attestation element

for locations in Alaska: Bona fide request

for dispatch of United States longshore

workers.

(a) The first attestation element shall

be satisfied when the employer signs

Form ETA 9033–A, attesting that, before

using alien crewmembers to perform

longshore work during the validity

period of the attestation, the employer

will make a bona fide request for United

States longshore workers who are

qualified and available in sufficient

numbers to perform the specified

longshore activity from the parties to

whom notice is provided under

§ llll.537(a)(1) (ii) and (iii).

Although an employer is required to

provide notification of filing to labor

organizations recognized as exclusive

bargaining representatives of United

States longshore workers pursuant to

§ llll.537(a)(1)(i) of this part, an

employer need not request dispatch of

United States longshore workers

directly from such parties. The requests

for dispatch of United States longshore

workers pursuant to this section shall be

directed to contract stevedoring

companies which employ or intend to

employ United States longshore workers

at that location, and to operators of

private docks at which the employer

will use longshore workers. An

employer is not required to request

dispatch of United States longshore

workers from private dock operators or

contract stevedoring companies which

do not meet the requirements of section

32 of the Longshore and Harbor

Workers’ Compensation Act (33 U.S.C.

932) or, in the case of contract

stevedoring companies, which are not

licensed to do business in the State of

Alaska.

(1) Wherever two or more contract

stevedoring companies have signed a

joint collective bargaining agreement

with a single qualified labor

organization, the employer may request

longshore workers from only one of

such contract stevedoring companies. A

qualified labor organization is one

which has been recognized as an

exclusive bargaining representative of

United States longshore workers within

the meaning of the National Labor

Relations Act (29 U.S.C. 141 et seq.) and

which makes available or intends to

make available workers to the particular

location where the longshore work is to

be performed.

(2) A request for longshore workers to

an operator of a private dock may be

made only for longshore work to be

performed at that dock.

(3) An employer shall not be required

to request longshore workers from a

party if that party has notified the

employer in writing that it does not

intend to make available United States

longshore workers who are qualified

and available in sufficient numbers to

the time and location at which the

longshore work is to be performed.

(4) A party that has provided such

written notice to the employer under

paragraph (a)(3) of this section may

subsequently notify the employer in

writing that it is prepared to make

available United States longshore

workers who are qualified and available

in sufficient numbers to perform the

longshore activity at the time and

location where the longshore work is to

be performed. In that event, the

employer’s obligations to that party

under §§llll.534 and llll.535

of this part shall recommence 60 days

after its receipt of such notice.

(5) When a party has provided written

notice to the employer under paragraph

(a)(3) of this section that it does not

intend to dispatch United States

longshore workers to perform the

longshore work attested to by the

employer, such notice shall expire upon

the earliest of the following events:

(i) When the terms of such notice

specify an expiration date at which time

the employer’s obligation to that party

under §§llll.534 and llll.535

of this part shall recommence;

(ii) When retracted pursuant to

paragraph (a)(4) of this section; or

(iii) Upon the expiration of the

validity of the attestation.

(b) Documentation. To substantiate

the requirement in paragraph (a) of this

section, an employer shall develop and
3966 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

maintain documentation to meet the

employer’s burden of proof under the

first attestation element. The employer

shall retain records of all requests for

dispatch of United States longshore

workers to perform the longshore work

attested to. Such documentation shall

consist of letters, telephone logs,

facsimiles or other memoranda to show

that, before using alien crewmembers to

perform longshore work, the employer

made a bona fide request for United

States longshore workers who are

qualified and available in sufficient

numbers to perform the longshore

activity. At a minimum, such

documentation shall include the date

the request was made, the name and

telephone number of the particular

individual(s) to whom the request for

dispatch was directed, and the number

and composition of full work units

requested. Further, whenever any party

has provided written notice to the

employer under paragraph (a)(3) of this

section, the employer shall retain the

notice for the period of time specified in

§ llll.533 of this part, and, if

appropriate, any subsequent notice by

that party that it is prepared to make

available United States longshore

workers at the times and locations

attested to.

§llll.535 The second attestation

element for locations in Alaska:

Employment of United States longshore

workers.

(a) The second attestation element

shall be satisfied when the employer

signs Form ETA 9033–A, attesting that

during the validity period of the

attestation, the employer will employ all

United States longshore workers made

available in response to the request for

dispatch who, in compliance with

applicable industry standards in the

State of Alaska, including safety

considerations, are qualified and

available in sufficient numbers and are

needed to perform the longshore activity

at the particular time and location

attested to.

(1) In no case shall an employer filing

an attestation be required to hire less

than a full work unit of United States

longshore workers needed to perform

the longshore activity nor be required to

provide overnight accommodations for

the longshore workers while employed.

For purposes of this section, ‘‘full work

unit’’ means the full complement of

longshore workers needed to perform

the longshore activity, as determined by

industry standards in the State of

Alaska, including safety considerations.

Where the makeup of a full work unit

is covered by one or more collective

bargaining agreements in effect at the

time and location where longshore work

is to be performed, the provisions of

such agreement(s) shall be deemed to be

in conformance with industry standards

in the State of Alaska.

(2) In no case shall an employer be

required to provide transportation to the

vessel where the longshore work is to be

performed, except where:

(i) Surface transportation is available;

for purposes of this section, ‘‘surface

transportation’’ means a tugboat or other

vessel which is appropriately insured,

operated by licensed personnel, and

capable of safely transporting U.S.

longshore workers from shore to a vessel

on which longshore work is to be

performed;

(ii) Such transportation may be safely

accomplished; and

(iii) (A) Travel time to the vessel does

not exceed one-half hour each way; and

(B) Travel distance to the vessel from

the point of embarkation does not

exceed 5 miles; for purposes of this

section, ‘‘point of embarkation’’ means a

dock or landing at which U.S. longshore

workers may be safely boarded for

transport from shore to a vessel on

which longshore work is to be

performed; or

(C) In the cases of Wide Bay, Alaska,

and Klawock/Craig, Alaska, travel time

does not exceed 45 minutes each way

and travel distance to the vessel from

the point of embarkation does not

exceed 7.5 miles, unless the party

responding to the request for dispatch

agrees to lesser time and distance

specifications.

(3) If a United States longshore worker

is capable of getting to and from the

vessel where longshore work is to be

performed when the vessel is beyond

the time and distance limitations

specified in paragraph (a)(2)(iii) of this

section, and where all of the other

criteria governing the employment of

United States longshore workers under

this subpart are met (e.g., ‘‘qualified and

available in sufficient numbers’’), the

employer is still obligated to employ the

worker to perform the longshore

activity. In such instance, however, the

employer shall not be required to

provide such transportation nor to

reimburse the longshore worker for the

cost incurred in transport to and from

the vessel.

(4) Where an employer is required to

provide transportation to the vessel

because it is within the time and

distance limitations specified in

(a)(2)(iii) of this section, the employer

also shall be required to provide return

transportation to the point of

embarkation.

(b) Documentation. To substantiate

the requirement in paragraph (a) of this

section, an employer shall develop and

maintain documentation to meet the

employer’s burden of proof. Such

documentation shall include records of

payments to contract stevedoring

companies or private dock operators,

payroll records for United States

longshore workers employed, or other

documentation to show clearly that the

employer has met its obligation to

employ all United States longshore

workers made available in response to a

request for dispatch who are qualified

and available in sufficient numbers. The

documentation shall specify the number

of full work units employed pursuant to

this section, the composition of such

full work units (i.e., number of workers

by job title), and the date(s) and

location(s) where the longshore work

was performed. The employer also shall

develop and maintain documentation

concerning the provision of

transportation from the point of

embarkation to the vessel on which

longshore work is to be performed. Each

time one or more United States

longshore workers are dispatched in

response to the request under

§ llll.534, the employer shall

retain a written record of whether

transportation to the vessel was

provided and the time and distance

from the point of embarkation to the

vessel.

§llll.536 The third attestation

element for locations in Alaska: No

intention or design to influence bargaining

representative election.

(a) The employer shall attest that use

of alien crewmembers to perform the

longshore activity specified on the Form

ETA 9033–A is not intended or

designed to influence an election of a

bargaining representative for workers in

the State of Alaska.

(b) Documentation. The employer

need not develop nor maintain

documentation to substantiate the

statement referenced in paragraph (a) of

this section. In the case of an

investigation, however, the employer

has the burden of proof to show that the

use of alien crewmembers to perform

the longshore activity specified on the

Form ETA 9033–A was not intended nor

designed to influence an election of a

bargaining representative for workers in

the State of Alaska.

§llll.537 The fourth attestation

element for locations in Alaska: Notice of

filing.

(a)(1) The employer shall attest that at

the time of filing the attestation, notice

of filing has been provided to:

(i) Labor organizations which have

been recognized as exclusive bargaining

representatives of United States
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3967

longshore workers within the meaning

of the National Labor Relations Act (29

U.S.C. 141 et seq.) and which make

available or intend to make available

workers to the particular location where

the longshore work is to be performed;

(ii) Contract stevedoring companies

which employ or intend to employ

United States longshore workers at the

location where the longshore work is to

be performed; and

(iii) Operators of private docks at

which the employer will use longshore

workers.

(2) The notices provided under

paragraph (a)(1) of this section shall

include a copy of the Form ETA 9033–

A to be submitted to ETA, shall provide

information concerning the availability

of supporting documents for public

examination at the national office of

ETA, and shall include the following

statement: ‘‘Complaints alleging a

misrepresentation of material facts in

the attestation and/or failure to comply

with the terms of the attestation may be

filed with any office of the Wage and

Hour Division of the United States

Department of Labor.’’

(b) The employer shall request a copy

of the Certificate of Compliance issued

by the district director of the Office of

Workers’ Compensation Programs under

section 37 of the Longshore and Harbor

Workers’ Compensation Act (33 U.S.C.

932) from the parties to whom notice is

provided pursuant to paragraphs (a)(1)

(ii) and (iii) of this section. An

employer’s obligation to make a bona

fide request for dispatch of U.S.

longshore workers under §llll.534

of this part before using alien

crewmembers to perform the longshore

work attested to shall commence upon

receipt of the copy of the Certificate of

Compliance.

(c) Documentation. The employer

shall develop and maintain

documentation sufficient to meet its

burden of proving the validity of the

statement referenced in paragraphs (a)

and (b) of this section and attested to on

the Form ETA 9033–A. Such

documentation shall include a copy of

the notices provided, as required by

paragraph (a)(1) of this section, and

shall be submitted to ETA along with

the Form ETA 9033–A.

§llll.538 Actions on attestations

submitted for filing for locations in Alaska.

Once an attestation has been received

from an employer, a determination shall

be made by the regional certifying

officer whether to accept the attestation

for filing or return it. The regional

certifying officer may request additional

explanation and/or documentation from

the employer in making this

determination. An attestation which is

properly filled out and which includes

accompanying documentation for the

requirement set forth at §llll.537

of this part shall be accepted for filing

by ETA on the date it is signed by the

regional certifying officer unless it falls

within one of the categories set forth in

paragraph (b) of this section. Once an

attestation is accepted for filing, ETA

shall then follow the procedures set

forth in paragraph (a)(1) of this section.

Upon acceptance of the employer’s

attestation by ETA, the attestation and

accompanying documentation shall be

forwarded to and be available for public

examination at the ETA national office

in a timely manner. ETA shall not

consider information contesting an

attestation received by ETA prior to the

determination to accept or return the

attestation for filing. Such information

shall not be made a part of ETA’s

administrative record on the attestation,

but shall be referred to ESA to be

processed as a complaint pursuant to

subpart G of this part if the attestation

is accepted by ETA for filing.

(a) Acceptance. (1) If the attestation is

properly filled out and includes

accompanying documentation for the

requirement set forth at §llll.537,

and does not fall within one of the

categories set forth at paragraph (b) of

this section, ETA shall accept the

attestation for filing, provide

notification to the INS office having

jurisdiction over the location where

longshore work will be performed, and

return to the employer, or the

employer’s agent or representative at a

U.S. address, one copy of the attestation

form submitted by the employer, with

ETA’s acceptance indicated thereon.

Before using alien crewmembers to

perform the longshore work attested to

on Form ETA 9033–A, the employer

shall make a bona fide request for and

employ United States longshore workers

who are qualified and available in

sufficient numbers pursuant to

§§ llll.534 and llll.535.

Where such a request for dispatch of

United States longshore workers is

unsuccessful, either in whole or in part,

any use of alien crewmembers to

perform longshore activity shall be in

accordance with INS regulations.

(2) DOL is not the guarantor of the

accuracy, truthfulness or adequacy of an

attestation accepted for filing.

(b) Unacceptable attestations. ETA

shall not accept an attestation for filing

and shall return such attestation to the

employer, or the employer’s agent or

representative at a U.S. address, when

any one of the following conditions

exists:

(1) When the Form ETA 9033–A is not

properly filled out. Examples of

improperly filled out Form ETA 9033–

A’s include instances where the

employer has neglected to check all the

necessary boxes, where the employer

has failed to include the name of any

port, city, or other geographical

reference point where longshore work is

to be performed, or where the employer

has failed to sign the attestation or to

designate an agent in the United States.

(2) When the Form ETA 9033–A with

accompanying documentation is not

received by ETA at least 30 days prior

to the first performance of the longshore

activity, unless the employer is claiming

that it could not have reasonably

anticipated the need to file the

attestation for that location at that time,

and has included documentation which

supports this contention, and ETA has

found the claim to be valid.

(3) When the Form ETA 9033–A does

not include accompanying

documentation for the requirement set

forth at §llll.537.

(4) When the accompanying

documentation submitted by the

employer and required by

§ llll.537, on its face, is

inconsistent with that section. Examples

of such a situation include an instance

where the Form ETA 9033–A indicates

that the longshore work will be

performed at a particular private dock

and the documentation required under

the notice attestation element indicates

that notice was provided to an operator

of a different private dock, or where the

longshore work is to be performed at a

particular time and location in the State

of Alaska and the notice of filing

provided to qualified labor

organizations and contract stevedoring

companies indicates that the longshore

work is to be performed at a different

time and/or location.

(5) When the Administrator, Wage

and Hour Division, has notified ETA, in

writing, after an investigation pursuant

to subpart G of this part, that a cease and

desist order has been issued pursuant to

subpart G of this part, with respect to

the attesting employer’s performance of

longshore work at a particular location

in the State of Alaska, in violation of a

previously accepted attestation.

(6) When the Administrator, Wage

and Hour Division, has notified ETA, in

writing, after an investigation pursuant

to subpart G of this part, that the

particular employer has misrepresented

or failed to comply with an attestation

previously submitted and accepted for

filing, but in no case for a period of

more than one year after the date of the

Administrator’s notice and provided

that INS has not advised ETA that the
3968 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

prohibition is in effect for a lesser

period.

(7) When the Administrator, Wage

and Hour Division, has notified ETA, in

writing, that the employer has failed to

comply with any penalty, sanction, or

other remedy assessed in a final agency

action following an investigation by the

Wage and Hour Division pursuant to

subpart G of this part.

(c) Resubmission. If the attestation is

not accepted for filing pursuant to

paragraph (b) of this section, ETA shall

return to the employer, or the

employer’s agent or representative, at a

U.S. address, the attestation form and

accompanying documentation

submitted by the employer. ETA shall

notify the employer, in writing, of the

reason(s) that the attestation is

unacceptable. When an attestation is

found to be unacceptable pursuant to

paragraph (b) (1), (2), (3), or (4) of this

section, the employer may resubmit the

corrected attestation with the proper

documentation. When an attestation is

found to be unacceptable pursuant to

paragraph (b) (5), (6), or (7) of this

section and returned, such action shall

be the final decision of the Secretary of

Labor.

§llll.539 Effective date and validity

of filed attestations for locations in Alaska.

An attestation is filed and effective as

of the date it is accepted and signed by

the regional certifying officer. Such

attestation is valid for the 12-month

period beginning on the date of

acceptance for filing, unless suspended

or invalidated pursuant to

§ llll.540 of this part. The filed

attestation expires at the end of the 12-

month period of validity.

§llll.540 Suspension or invalidation

of filed attestations for locations in Alaska.

Suspension or invalidation of an

attestation may result from enforcement

action(s) under subpart G of this part

(i.e., investigation(s) conducted by the

Administrator or cease and desist

order(s) issued by the Administrator

regarding the employer’s

misrepresentation in or failure to carry

out its attestation); or from a discovery

by ETA that it made an error in

accepting the attestation because such

attestation falls within one of the

categories set forth in §llll.538(b).

(a) Result of Wage and Hour Division

action. Upon the determination of a

violation under subpart G of this part,

the Administrator shall, pursuant to

§ llll.665(b), notify the Attorney

General of the violation and of the

Administrator’s notice to ETA.

(b) Result of ETA action. If, after

accepting an attestation for filing, ETA

finds that the attestation is unacceptable

because it falls within one of the

categories set forth at §llll.538(b)

and, as a result, ETA suspends or

invalidates the attestation, ETA shall

notify the Attorney General of such

suspension or invalidation and shall

return a copy of the attestation form to

the employer, or the employer’s agent or

representative at a U.S. address. ETA

shall notify the employer, in writing, of

the reason(s) that the attestation is

suspended or invalidated.

§llll.541 Withdrawal of accepted

attestations for locations in Alaska.

(a) An employer who has submitted

an attestation which has been accepted

for filing may withdraw such attestation

at any time before the 12-month period

of its validity terminates, unless the

Administrator has found reasonable

cause under subpart G to commence an

investigation of the particular

attestation. Such withdrawal may be

advisable, for example, when the

employer learns that the country in

which the vessel is registered and of

which nationals of such country hold a

majority of the ownership interest in the

vessel has been removed from the nonreciprocity list (which means, for

purposes of this section, Prohibitions on

longshore work by U.S. nationals; listing

by country at 22 CFR 89.1). In that

event, an attestation would no longer be

required under subpart F of this part,

since upon being removed from the nonreciprocity list the performance of

longshore work by alien crewmembers

would be permitted under the

reciprocity exception at sec. 258(e) of

the Act (8 U.S.C. 1288(e)). Requests for

withdrawals shall be in writing and

shall be directed to the regional

certifying officer.

(b) Withdrawal of an attestation shall

not affect an employer’s liability with

respect to any failure to meet the

conditions attested to which took place

before the withdrawal, or for

misrepresentations in an attestation.

However, if an employer has not yet

performed the longshore activities at the

location(s) in question, the

Administrator shall not find reasonable

cause to investigate unless it is alleged,

and there is reasonable cause to believe,

that the employer has made

misrepresentations in the attestation or

documentation thereof, or that the

employer has not in fact given the

notice attested to.

Public Access

§llll.550 Public access.

(a) Public examination at ETA. ETA

shall make available for public

examination in Washington, DC, a list of

employers which have filed attestations

under this subpart, and for each such

employer, a copy of the employer’s

attestation and accompanying

documentation it has received.

(b) Notice to public. ETA periodically

shall publish a list in the Federal

Register identifying under this subpart

employers which have submitted

attestations; employers which have

attestations on file; and employers

which have submitted attestations

which have been found unacceptable for

filing.

(Approved by the Office of Management and

Budget under Control No. 1205–0309)

Appendix A to Subpart F—U.S.

Seaports

The list of 224 seaports includes all major

and most smaller ports serving ocean and

Great Lakes commerce.

North Atlantic Range

Bucksport, ME

Eastport, ME

Portland, ME

Searsport, ME

Portsmouth, NH

Boston, MA

Fall River, MA

New Bedford, MA

Providence, RI

Bridgeport, CT

New Haven, CT

New London, CT

Albany, NY

New York, NY/NJ

Camden, NJ

Gloucester City, NJ

Paulsboro, NJ

Chester, PA

Marcus Hook, PA

Philadelphia, PA

Delaware City, DE

Wilmington, DE

Baltimore, MD

Cambridge, MD

Alexandria, VA

Chesapeake, VA

Hopewell, VA

Newport News, VA

Norfolk, VA

Portsmouth, VA

Richmond, VA

South Atlantic Range

Morehead City, NC

Southport, NC

Wilmington, NC

Charleston, SC

Georgetown, SC

Port Royal, SC

Brunswick, GA

Savannah, GA

St. Mary, GA

Cocoa, FL

Fernandina Beach, FL

Fort Lauderdale, FL

Fort Pierce, FL

Jacksonville, FL

Miami, FL

Palm Beach, FL

Port Canaveral, FL
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3969

Port Everglades, FL

Riviera, FL

Aguadilla, PR

Ceiba, PR

Guanica, PR

Guayanilla, PR

Humacao, PR

Jobos, PR

Mayaguez, PR

Ponce, PR

San Juan, PR

Vieques, PR

Yabucoa, PR

Alucroix, VI

Charlotte Amalie, VI

Christiansted, VI

Frederiksted, VI

Limetree Bay, VI

North Pacific Range

Astoria, OR

Bandon, OR

Columbia City, OR

Coos Bay, OR

Mapleton, OR

Newport, OR

Portland, OR

Rainier, OR

Reedsport, OR

St. Helens, OR

Toledo, OR

Anacortes, WA

Bellingham, WA

Edmonds (Edwards Point), WA

Everett, WA

Ferndale, WA

Friday Harbor, WA

Grays Harbor, WA

Kalama, WA

Longview, WA

Olympia, WA

Point Wells, WA

Portage, WA

Port Angeles, WA

Port Gamble, WA

Port Townsend, WA

Raymond, WA

Seattle, WA

Tacoma, WA

Vancouver, WA

Willapa Harbor, WA

Winslow, WA

Great Lakes Range

Duluth, MN

Silver Bay, MN

Green Bay, WI

Kenosha, WI

Manitowoc, WI

Milwaukee, WI

Sheboygan, WI

Superior, WI

Alpena, MI

Bay City, MI

Detroit, MI

De Tour Village, MI

Essexville, MI

Ferrysburg, MI

Grand Haven, MI

Marine City, MI

Muskegon, MI

Port Huron, MI

Presque Isle, MI

Rogers City, MI

Saginaw, MI

Sault Ste Marie, MI

Chicago, IL

Ashtabula, OH

Cincinnati, OH

Cleveland, OH

Conneaut, OH

Fairport, OH

Huron, OH

Lorain, OH

Sandusky, OH

Toledo, OH

Erie, PA

Buffalo, NY

Odgensburg, NY

Oswego, NY

Rochester, NY

Burns Harbor, IN

E. Chicago, IN

Gary, IN

Gulf Coast Range

Panama City, FL

Pensacola, FL

Port Manatee, FL

Port St. Joe, FL

Tampa, FL

Mobile, AL

Gulfport, MS

Pascagoula, MS

Baton Rouge, LA

Gretna, LA

Lake Charles, LA

Louisiana Offshore Oil Port, LA

New Orleans, LA

Beaumont, TX

Brownsville, TX

Corpus Christi, TX

Freeport, TX

Galveston, TX

Harbor Island, TX

Houston, TX

Orange, TX

Port Arthur, TX

Port Isabel, TX

Port Lavaca, TX

Port Neches, TX

Sabine, TX

Texas City, TX

South Pacific Range

Alameda, CA

Antioch, CA

Benicia, CA

Carlsbad, CA

Carpinteria, CA

Crockett, CA

El Segundo, CA

Eureka, CA

Estero Bay, CA

Gaviota, CA

Huntington Beach, CA

Long Beach, CA

Los Angeles, CA

Mandalay Beach, CA

Martinez, CA

Moss Landing, CA

Oakland, CA

Pittsburg, CA

Port Costa, CA

Port Hueneme, CA

Port San Luis, CA

Redwood City, CA

Richmond, CA

Sacramento, CA

San Diego, CA

San Francisco, CA

Selby, CA

Stockton, CA

Vallejo, CA

Ventura, CA

Barbers Point, HI

Hilo, HI

Honolulu, HI

Kahului, HI

Kaunakakai, HI

Kawaihae, HI

Nawiliwili, HI

Port Allen, HI

Subpart G—Enforcement of the

Limitations Imposed on Employers

Using Alien Crewmembers for

Longshore Activities in U.S. Ports

§llll.600 Enforcement Authority of

Administrator, Wage and Hour Division.

(a) The Administrator shall perform

all the Secretary’s investigative and

enforcement functions under section

258 of the INA (8 U.S.C. 1288) and

subparts F and G of this part.

(b) The Administrator, pursuant to a

complaint, shall conduct such

investigations as may be appropriate

and, in connection therewith, enter and

inspect such places and such records

(and make transcriptions or copies

thereof), question such persons and

gather such information as deemed

necessary by the Administrator to

determine compliance regarding the

matters which are the subject of the

investigation.

(c) An employer being investigated

shall make available to the

Administrator such records,

information, persons, and places as the

Administrator deems appropriate to

copy, transcribe, question, or inspect.

No employer subject to the provisions of

section 258 of the INA (8 U.S.C. 1288)

and subparts F and G of this part shall

interfere with any official of the

Department of Labor performing an

investigation, inspection or law

enforcement function pursuant to 8

U.S.C. 1288 or subpart F or G of this

part. Any such interference shall be a

violation of the attestation and subparts

F and G of this part, and the

Administrator may take such further

actions as the Administrator considers

appropriate. (Note: Federal criminal

statutes prohibit certain interference

with a Federal officer in the

performance of official duties. 18 U.S.C.

111 and 18 U.S.C. 1114.)

(d)( 1) An employer subject to

subparts F and G of this part shall at all

times cooperate in administrative and

enforcement proceedings. No employer

shall intimidate, threaten, restrain,

coerce, blacklist, discharge, retaliate, or

in any manner discriminate against any

person because such person has:

(i) Filed a complaint or appeal under

or related to section 258 of the INA (8
3970 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

U.S.C. 1288) or subpart F or G of this

part;

(ii) Testified or is about to testify in

any proceeding under or related to

section 258 of the INA (8 U.S.C. 1288)

or subpart F or G of this part;

(iii) Exercised or asserted on behalf of

himself or herself or others any right or

protection afforded by section 258 of the

INA (8 U.S.C. 1288) or subpart F or G

of this part.

(iv) Consulted with an employee of a

legal assistance program or an attorney

on matters related to section 258 of the

Act or to subpart F or G of this part or

any other DOL regulation promulgated

pursuant to 8 U.S.C. 1288.

(2) In the event of such intimidation

or restraint as are described in

paragraph (d)(1) of this section, the

conduct shall be a violation of the

attestation and subparts F and G of this

part, and the Administrator may take

such further actions as the

Administrator considers appropriate.

(e) The Administrator shall, to the

extent possible under existing law,

protect the confidentiality of any person

who provides information to the

Department in confidence in the course

of an investigation or otherwise under

subpart F or G of this part. However,

confidentiality will not be afforded to

the complainant or to information

provided by the complainant.

§llll.605 Complaints and

investigative procedures.

(a) The Administrator, through an

investigation, shall determine whether a

basis exists to make a finding that:

(1) An attesting employer has—

(i) Failed to meet conditions attested

to; or

(ii) Misrepresented a material fact in

an attestation.

(Note: Federal criminal statutes provide

penalties of up to $10,000 and/or

imprisonment of up to 5 years for knowing

and willful submission of false statements to

the Federal Government. 18 U.S.C. 1001; see

also 18 U.S.C. 1546.); or

(2) In the case of an employer

operating under the automated vessel

exception to the prohibition on utilizing

alien crewmembers to perform

longshore activity(ies) at a U.S. port, the

employer—

(i) Is utilizing alien crewmember(s) to

perform longshore activity(ies) at a port

where the prevailing practice has not

been to use such workers for such

activity(ies); or

(ii) Is utilizing alien crewmember(s) to

perform longshore activities:

(A) During a strike or lockout in the

course of a labor dispute at the U.S.

port; and/or

(B) With intent or design to influence

an election of a bargaining

representative for workers at the U.S.

port; or

(3) An employer failed to comply in

any other manner with the provisions of

subpart F or G of this part.

(b) Any aggrieved person or

organization may file a complaint of a

violation of the provisions of subpart F

or G of this part.

(1) No particular form of complaint is

required, except that the complaint shall

be written or, if oral, shall be reduced

to writing by the Wage and Hour

Division official who receives the

complaint.

(2) The complaint shall set forth

sufficient facts for the Administrator to

determine—

(i) Whether, in the case of an attesting

employer, there is reasonable cause to

believe that particular part or parts of

the attestation or regulations have been

violated; or

(ii) Whether, in the case of an

employer claiming the automated vessel

exception, the preponderance of the

evidence submitted by any interested

party shows that conditions exist that

would require the employer to file an

attestation.

(3) The complaint may be submitted

to any local Wage and Hour Division

office; the addresses of such offices are

found in local telephone directories.

The office or person receiving such a

complaint shall refer it to the office of

the Wage and Hour Division

administering the area in which the

reported violation is alleged to have

occurred.

(c) The Administrator shall determine

whether there is reasonable cause to

believe that the complaint warrants

investigation. If the Administrator

determines that the complaint fails to

present reasonable cause for an

investigation, the Administrator shall so

notify the complainant, who may

submit a new complaint, with such

additional information as may be

necessary. There shall be no hearing

pursuant to §llll.625 for the

Administrator’s determination not to

conduct an investigation. If the

Administrator determines that an

investigation on the complaint is

warranted, the investigation shall be

conducted and a determination issued

within 180 calendar days of the

Administrator’s receipt of the

complaint, or later for good cause

shown.

(d) In conducting an investigation, the

Administrator may consider and make

part of the investigation file any

evidence or materials that have been

compiled in any previous investigation

regarding the same or a closely related

matter.

(e) In conducting an investigation

under an attestation, the Administrator

shall take into consideration the

employer’s burden to provide facts and

evidence to establish the matters

asserted. In conducting an investigation

regarding an employer’s eligibility for

the automated vessel exception, the

Administrator shall not impose the

burden of proof on the employer, but

shall consider all evidence from any

interested party in determining whether

the employer is not eligible for the

exception.

(f) In an investigation regarding the

use of alien crewmembers to perform

longshore activity(ies) in a U.S. port

(whether by an attesting employer or by

an employer claiming the automated

vessel exception), the Administrator

shall accept as conclusive proof a

previous Departmental determination,

published in the Federal Register

pursuant to §llll.670, establishing

that such use of alien crewmembers is

not the prevailing practice for the

activity(ies) and U.S. port at issue. The

Administrator shall give appropriate

weight to a previous Departmental

determination published in the Federal

Register pursuant to §llll.670,

establishing that at the time of such

determination, such use of alien

crewmembers was the prevailing

practice for the activity(ies) and U.S.

port at issue.

(g) When an investigation has been

conducted, the Administrator shall,

within the time period specified in

paragraph (c) of this section, issue a

written determination as to whether a

basis exists to make a finding stated in

paragraph (a) of this section. The

determination shall be issued and an

opportunity for a hearing shall be

afforded in accordance with the

procedures specified in

§ llll.625(d) of this part.

§llll.610 Automated vessel

exception to prohibition on utilization of

alien crewmember(s) to perform longshore

activity(ies) at a U.S. port.

(a) The Act establishes a rebuttable

presumption that the prevailing practice

in U.S. ports is for automated vessels

(i.e., vessels equipped with automated

self- unloading conveyor belts or

vacuum-actuated systems) to use alien

crewmembers to perform longshore

activity(ies) through the use of the selfunloading equipment. An employer

claiming the automated vessel exception

does not have the burden of establishing

eligibility for the exception.

(b) In the event of a complaint

asserting that an employer claiming the

automated vessel exception is not

eligible for such exception, the
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3971

Administrator shall determine whether

the preponderance of the evidence

submitted by any interested party shows

that:

(1) It is not the prevailing practice at

the U.S. port to use alien

crewmember(s) to perform the longshore

activity(ies) through the use of the selfunloading equipment; or

(2) The employer is using alien

crewmembers to perform longshore

activity(ies)—

(i) During a strike or lockout in the

course of a labor dispute at the U.S.

port; and/or

(ii) With intent or design to influence

an election of a bargaining

representative for workers at the U.S.

port.

(c) In making the prevailing practice

determination required by paragraph

(b)(1) of this section, the Administrator

shall determine whether, in the 12-

month period preceding the date of the

Administrator’s receipt of the

complaint, one of the following

conditions existed:

(1) Over fifty percent of the automated

vessels docking at the port used alien

crewmembers for the activity (for

purposes of this paragraph (c)(1) of this

section, a vessel shall be counted each

time it docks at the particular port); or

(2) Alien crewmembers made up over

fifty percent of the workers who

performed the activity with respect to

such automated vessels.

(d) An interested party, complaining

that the automated vessel exception is

not applicable to a particular employer,

shall provide to the Administrator

evidence such as:

(1) A written summary of a survey of

the experience of masters of automated

vessels which entered the local port in

the previous year, describing the

practice in the port as to the use of alien

crewmembers;

(2) A letter, affidavit, or other written

statement from an appropriate local port

authority regarding the use of alien

crewmembers to perform the longshore

activity at the port in the previous year;

(3) Written statements from collective

bargaining representatives and/or

shipping agents with direct knowledge

of practices regarding the use of alien

crewmembers at the port in the previous

year.

§llll.615 Cease and desist order.

(a) If the Administrator determines

that reasonable cause exists to conduct

an investigation with respect to an

attestation, the complainant may request

that the Administrator enter a cease and

desist order against the employer

against whom the complaint is lodged.

(1) The request for a cease and desist

order may be filed along with the

complaint, or may be filed

subsequently. The request, including all

accompanying documents, shall be filed

in duplicate with the same Wage and

Hour Division office that received the

complaint.

(2) No particular form is prescribed

for a request for a cease and desist order

pursuant to this paragraph (a). However,

any such request shall:

(i) Be dated;

(ii) Be typewritten or legibly written;

(iii) Specify the attestation

provision(s) with respect to which the

employer allegedly failed to comply

and/or submitted misrepresentation(s)

of material fact(s);

(iv) Be accompanied by evidence to

substantiate the allegation(s) of

noncompliance and/or

misrepresentation;

(v) Be signed by the complaining

party making the request or by the

authorized representative of such party;

(vi) Include the address at which such

complaining party or authorized

representative desires to receive further

communications relating thereto.

(3) Upon receipt of a request for a

cease and desist order, the

Administrator shall promptly notify the

employer of the request. The

Administrator’s notice shall:

(i) Inform the employer that it may

respond to the request and meet with a

Wage and Hour Division official within

14 calendar days of the date of the

notice;

(ii) Be served upon the employer by

facsimile transmission, in person, or by

certified or regular mail, at the address

of the U.S. agent stated on the

employer’s attestation;

(iii) Be accompanied by copies of the

complaint, the request for a cease and

desist order, the evidence submitted by

the complainant, and any evidence from

other investigation(s) of the same or a

closely related matter which the

Administrator may incorporate into the

record. (Any such evidence from other

investigation(s) shall also be made

available for examination by the

complaining party at the Wage and Hour

Division office which issued the notice.)

(4) No particular form is prescribed

for the employer’s response to the

complaining party’s request for a cease

and desist order under this paragraph

(a), however, any such response shall:

(i) Be dated;

(ii) Be submitted by facsimile

transmission, in person, by certified or

regular mail, or by courier service to the

Wage and Hour Division office which

issued the notice of the request;

(iii) Be received by the appropriate

Wage and Hour Division office no later

than 14 calendar days from the date of

the notice of the request;

(iv) Be typewritten or legibly written;

(v) Explain, in any detail desired by

the employer, the employer’s grounds or

reasons as to why the Administrator

should deny the requested cease and

desist order;

(vi) Be accompanied by evidence to

substantiate the employer’s grounds or

reasons as to why the Administrator

should deny the requested cease and

desist order;

(vii) Specify whether the employer

desires an informal meeting with a

Wage and Hour Division official;

(viii) Be signed by the employer or its

authorized representative; and

(ix) Include the address at which the

employer or its authorized

representative desires to receive further

communications relating thereto, if such

address is different from the address of

the U.S. agent stated on the attestation.

(5) In the event the employer requests

a meeting with a Wage and Hour

Division official, the Administrator shall

provide the employer and the

complaining party, or their authorized

representatives, an opportunity for such

a meeting to present their views

regarding the evidence and arguments

submitted by the parties. This shall be

an informal meeting, not subject to any

procedural rules. The meeting shall be

held within the 14 calendar days

permitted for the employer’s response to

the request for the cease and desist

order, and shall be held at a time and

place set by the Wage and Hour Division

official, who shall notify the parties.

(6) After receipt of the employer’s

timely response and after any informal

meeting which may have been held with

the parties, the Administrator shall

promptly issue a written determination,

either denying the request or issuing a

cease and desist order. In making the

determination, the Administrator shall

consider all the evidence submitted,

including any evidence from the same

or a closely related matter which the

Administrator has incorporated into the

record and provided to the employer. If

the Administrator determines that the

complaining party’s position is

supported by a preponderance of the

evidence submitted, the Administrator

shall order that the employer cease the

activities specified in the determination,

until the completion of the

Administrator’s investigation and any

subsequent proceedings pursuant to

§ llll.625 of this part, unless the

prohibition is lifted by subsequent order

of the Administrator because it is later

determined that the employer’s position

was correct. While the cease and desist

order is in effect, ETA shall suspend the
3972 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

subject attestation, either in whole or in

part, and shall not accept any

subsequent attestation from the

employer for the activity(ies) and U.S.

port or location in the State of Alaska at

issue.

(7) The Administrator’s cease and

desist order shall be served on the

employer at the address of its

designated U.S. based representative or

at the address specified in the

employer’s response, by facsimile

transmission, personal service, or

certified mail.

(b) If the Administrator determines

that reasonable cause exists to conduct

an investigation with respect to a

complaint that a non-attesting employer

is not entitled to the automated vessel

exception to the requirement for the

filing of an attestation, a complaining

party may request that the

Administrator enter a cease and desist

order against the employer against

whom the complaint is lodged.

(1) The request for a cease and desist

order may be filed along with the

complaint, or may be filed

subsequently. The request, including all

accompanying documents, shall be filed

in duplicate with the same Wage and

Hour Division office that received the

complaint.

(2) No particular form is prescribed

for a request for a cease and desist order

pursuant to this paragraph. However,

any such request shall:

(i) Be dated;

(ii) Be typewritten or legibly written;

(iii) Specify the circumstances which

allegedly require that the employer be

denied the use of the automated vessel

exception;

(iv) Be accompanied by evidence to

substantiate the allegation(s);

(v) Be signed by the complaining

party making the request or by the

authorized representative of such party;

and

(vi) Include the address at which such

complaining party or authorized

representative desires to receive further

communications relating thereto.

(3) Upon receipt of a request for a

cease and desist order, the

Administrator shall notify the employer

of the request. The Administrator’s

notice shall:

(i) Inform the employer that it may

respond to the request and meet with a

Wage and Hour Division official within

14 calendar days of the date of the

notice;

(ii) Be served upon the employer by

facsimile transmission, in person, or by

certified or regular mail, at the

employer’s last known address; and

(iii) Be accompanied by copies of the

complaint, the request for a cease and

desist order, the evidence submitted by

the complainant, and any evidence from

other investigation(s) of the same or a

closely related matter which the

Administrator may incorporate into the

record. (Any such evidence from other

investigation(s) shall also be made

available for examination by the

complaining party at the Wage and Hour

Division office which issued the notice.)

(4) No particular form is prescribed

for the employer’s response to the

complaining party’s request for a cease

and desist order under this paragraph

(b). However, any such response shall:

(i) Be dated;

(ii) Be submitted by facsimile

transmission, in person, by certified or

regular mail, or by courier service to the

Wage and Hour Division office which

issued the notice of the request;

(iii) Be received by the appropriate

Wage and Hour Division office no later

than 14 calendar days from the date of

the notice of the request;

(iv) Be typewritten or legibly written;

(v) Explain, in any detail desired by

the employer, the employer’s grounds or

reasons as to why the Administrator

should deny the requested cease and

desist order;

(vi) Be accompanied by evidence to

substantiate the employer’s grounds or

reasons as to why the Administrator

should deny the requested cease and

desist order;

(vii) Specify whether the employer

desires an informal meeting with a

Wage and Hour Division official;

(viii) Be signed by the employer or its

authorized representative; and

(ix) Include the address at which the

employer or its authorized

representative desires to receive further

communications relating thereto.

(5) In the event the employer requests

a meeting with a Wage and Hour

Division official, the Administrator shall

provide the employer and the

complaining party, or their authorized

representatives, an opportunity for such

a meeting to present their views

regarding the evidence and arguments

submitted by the parties. This shall be

an informal meeting, not subject to any

procedural rules. The meeting shall be

held within the 14 calendar days

permitted for the employer’s response to

the request for the cease and desist

order, and shall be held at a time and

place set by the Wage and Hour Division

official, who shall notify the parties.

(6) After receipt of the employer’s

timely response and after any informal

meeting which may have been held with

the parties, the Administrator shall

promptly issue a written determination,

either denying the request or issuing a

cease and desist order. If the

Administrator determines that the

complaining party’s position is

supported by a preponderance of the

evidence submitted, the Administrator

shall order that the employer cease the

use of alien crewmembers to perform

the longshore activity(ies) specified in

the order. In making the determination,

the Administrator shall consider all the

evidence submitted, including any

evidence from the same or a closely

related matter which the Administrator

has incorporated into the record and

provided to the employer. The order

shall remain in effect until the

completion of the investigation and any

subsequent hearing proceedings

pursuant to §llll.625 of this part,

unless the employer files and maintains

on file with ETA an attestation pursuant

to §llll.520 of this part or unless

the prohibition is lifted by subsequent

order of the Administrator because it is

later determined that the employer’s

position was correct.

(7) The Administrator’s cease and

desist order shall be served on the

employer or its designated

representative by facsimile

transmission, personal service, or by

certified mail at the address specified in

the employer’s response or, if no such

address was specified, at the employer’s

last known address.

§llll.620. Civil money penalties and

other remedies.

(a) The Administrator may assess a

civil money penalty not to exceed

$5,000 for each alien crewmember with

respect to whom there has been a

violation of the attestation or subpart F

or G of this part. The Administrator may

also impose appropriate remedy(ies).

(b) In determining the amount of civil

money penalty to be assessed, the

Administrator shall consider the type of

violation committed and other relevant

factors. The factors which may be

considered include, but are not limited

to, the following:

(1) Previous history of violation, or

violations, by the employer under the

Act and subpart F or G of this part;

(2) The number of workers affected by

the violation or violations;

(3) The gravity of the violation or

violations;

(4) Efforts made by the violator in

good faith to comply with the

provisions of 8 U.S.C. 1288(c) and

subparts F and G of this part;

(5) The violator’s explanation of the

violation or violations;

(6) The violator’s commitment to

future compliance; and/or

(7) The extent to which the violator

achieved a financial gain due to the

violation, or the potential financial loss,
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3973

potential injury or adverse effect with

respect to other parties.

(c) The civil money penalty, and any

other remedy determined by the

Administrator to be appropriate, are

immediately due for payment or

performance upon the assessment by the

Administrator, or the decision by an

administrative law judge where a

hearing is requested, or the decision by

the Secretary where review is granted.

The employer shall remit the amount of

the civil money penalty, by certified

check or money order made payable to

the order of ‘‘Wage and Hour Division,

Labor.’’ The remittance shall be

delivered or mailed to the Wage and

Hour Division office for the area in

which the violations occurred. The

performance of any other remedy

prescribed by the Administrator shall

follow procedures established by the

Administrator. The employer’s failure to

pay the civil money penalty, or to

perform any other remedy prescribed by

the Administrator, shall result in the

rejection by ETA of any future

attestation submitted by the employer,

until such payment or performance is

accomplished.

§llll.625 Written notice, service and

Federal Register publication of

Administrator’s determination.

(a) The Administrator’s

determination, issued pursuant to

§ llll.605 of this part, shall be

served on the complainant, the

employer, and other known interested

parties by personal service or by

certified mail at the parties’ last known

addresses. Where service by certified

mail is not accepted by the party, the

Administrator may exercise discretion

to serve the determination by regular

mail.

(b) Where the Administrator

determines the prevailing practice

regarding the use of alien

crewmember(s) to perform longshore

activity(ies) in a U.S. port (whether the

Administrator’s investigation involves

an employer operating under an

attestation, or under the automated

vessel exception), the Administrator

shall, simultaneously with issuance of

the determination, publish in the

Federal Register a notice of the

determination. The notice shall identify

the activity(ies), the U.S. port, and the

prevailing practice regarding the use of

alien crewmembers. The notice shall

also inform interested parties that they

may request a hearing pursuant to

§ llll.630 of this part, within 15

days of the date of the determination.

(c) The Administrator shall file with

the Chief Administrative Law Judge,

U.S. Department of Labor, a copy of the

complaint and the Administrator’s

determination.

(d) The Administrator’s written

determination required by

§ llll.605 of this part shall:

(1) Set forth the determination of the

Administrator and the reason or reasons

therefor, and in the case of a finding of

violation(s) by an attesting employer,

prescribe any remedies, including the

amount of any civil money penalties

assessed and the reason therefor, and/or

any other remedies required for

compliance with the employer’s

attestation.

(2) Inform the interested parties that

they may request a hearing pursuant to

§ llll.625 of this part.

(3) Inform the interested parties that

in the absence of a timely request for a

hearing, received by the Chief

Administrative Law Judge within 15

calendar days of the date of the

determination, the determination of the

Administrator shall become final and

not appealable.

(4) Set forth the procedure for

requesting a hearing, and give the

address of the Chief Administrative Law

Judge (with whom the request must be

filed) and the representative(s) of the

Solicitor of Labor (upon whom copies of

the request must be served).

(5) Inform the parties that, pursuant to

§ llll.665, the Administrator shall

notify ETA and the Attorney General of

the occurrence of a violation by the

attesting employer or of the nonattesting employer’s ineligibility for the

automated vessel exception.

§llll.630 Request for hearing.

(a) Any interested party desiring to

request an administrative hearing on a

determination issued pursuant to

§§ llll.605 and llll.625 of this

part shall make such request in writing

to the Chief Administrative Law Judge

at the address stated in the notice of

determination.

(b) Interested parties may request a

hearing in the following circumstances:

(1) The complainant or any other

interested party may request a hearing

where the Administrator determines,

after investigation, that there is no basis

for a finding that an attesting employer

has committed violation(s) or that the

employer is eligible for the automated

vessel exception. In such a proceeding,

the requesting party and the employer

shall be parties; the Administrator may

intervene as a party or appear as amicus

curiae at any time in the proceeding, at

the Administrator’s discretion.

(2) The employer or any other

interested party may request a hearing

where the Administrator determines,

after investigation, that there is a basis

for a finding that an attesting employer

has committed violation(s) or that a

non- attesting employer is not eligible

for the automated vessel exception. In

such a proceeding, the Administrator

and the employer shall be parties.

(c) No particular form is prescribed

for any request for hearing permitted by

this section. However, any such request

shall:

(1) Be dated;

(2) Be typewritten or legibly written;

(3) Specify the issue or issues stated

in the notice of determination giving

rise to such request;

(4) State the specific reason or reasons

why the party requesting the hearing

believes such determination is in error;

(5) Be signed by the party making the

request or by an authorized

representative of such party; and

(6) Include the address at which such

party or authorized representative

desires to receive further

communications relating thereto.

(d) The request for such hearing must

be received by the Chief Administrative

Law Judge, at the address stated in the

Administrator’s notice of determination,

no later than 15 calendar days after the

date of the determination. An interested

party that fails to meet this 15-day

deadline for requesting a hearing may

thereafter participate in the proceedings

only by consent of the administrative

law judge, either through intervention

as a party pursuant to 29 CFR 18.10 (b)

through (d) or through participation as

an amicus curiae pursuant to 18 CFR

18.12.

(e) The request may be filed in person,

by facsimile transmission, by certified

or regular mail, or by courier service.

For the requesting party’s protection, if

the request is filed by mail, it should be

by certified mail. If the request is filed

by facsimile transmission, the original

of the request, signed by the requestor

or authorized representative, shall be

filed within ten days.

(f) Copies of the request for a hearing

shall be sent by the requestor to the

Wage and Hour Division official who

issued the Administrator’s notice of

determination, to the representative(s)

of the Solicitor of Labor identified in the

notice of determination, and to all

known interested parties.

§lll.635 Rules of practice for

administrative law judge proceedings.

(a) Except as specifically provided in

this subpart, and to the extent they do

not conflict with the provisions of this

subpart, the ‘‘Rules of Practice and

Procedure for Administrative Hearings

Before the Office of Administrative Law

Judges’’ established by the Secretary at

29 CFR part 18 shall apply to
3974 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

administrative proceedings under this

subpart.

(b) As provided in the Administrative

Procedure Act, 5 U.S.C. 556, any oral or

documentary evidence may be received

in proceedings under this part. The

Federal Rules of Evidence and subpart

B of the Rules of Practice and Procedure

for Administrative Hearings Before the

Office of Administrative Law Judges (29

CFR part 18, subpart B) shall not apply,

but principles designed to ensure

production of relevant and probative

evidence shall guide the admission of

evidence. The administrative law judge

may exclude evidence which is

immaterial, irrelevant, or unduly

repetitive.

§lll.640 Service and computation of

time.

(a) Under this subpart, a party may

serve any pleading or document by

regular mail. Service on a party is

complete upon mailing to the last

known address or, in the case of the

attesting employer, to the employer’s

designated representative in the U.S. No

additional time for filing or response is

authorized where service is by mail. In

the interest of expeditious proceedings,

the administrative law judge may direct

the parties to serve pleadings or

documents by a method other than

regular mail.

(b) Two (2) copies of all pleadings and

other documents in any administrative

law judge proceeding shall be served on

the attorneys for the Administrator. One

copy shall be served on the Associate

Solicitor, Division of Fair Labor

Standards, Office of the Solicitor, U.S.

Department of Labor, 200 Constitution

Avenue NW., Washington, DC 20210,

and one copy on the attorney

representing the Administrator in the

proceeding.

(c) Time will be computed beginning

with the day following the action and

includes the last day of the period

unless it is a Saturday, Sunday, or

federally-observed holiday, in which

case the time period includes the next

business day.

§llll.645 Administrative law judge

proceedings.

(a) Upon receipt of a timely request

for a hearing filed pursuant to and in

accordance with §llll.630 of this

part, the Chief Administrative Law

Judge shall promptly appoint an

administrative law judge to hear the

case.

(b) Within seven calendar days

following the assignment of the case, the

administrative law judge shall notify all

interested parties of the date, time and

place of the hearing. All parties shall be

given at least fourteen calendar days’

notice of such hearing.

(c) The date of the hearing shall be not

more than 60 calendar days from the

date of the Administrator’s

determination. Because of the time

constraints imposed by the Act, no

requests for postponement shall be

granted except for compelling reasons.

Even if such reasons are shown, no

extension of the hearing date beyond 60

days from the date of the

Administrator’s determination shall be

granted except by consent of all the

parties to the proceeding.

(d) The administrative law judge may

prescribe a schedule by which the

parties are permitted to file a prehearing

brief or other written statement of fact

or law. Any such brief or statement shall

be served upon each other party in

accordance with §llll.640 of this

part. Posthearing briefs will not be

permitted except at the request of the

administrative law judge. When

permitted, any such brief shall be

limited to the issue or issues specified

by the administrative law judge, shall be

due within the time prescribed by the

administrative law judge, and shall be

served on each other party in

accordance with §llll.640 of this

part.

(e) In reaching a decision, the

administrative law judge shall, in

accordance with the Act, impose the

following burden of proof—

(1) The attesting employer shall have

the burden of producing facts and

evidence to establish the matters

required by the attestation at issue;

(2) The burden of proof as to the

applicability of the automated vessel

exception shall be on the party to the

hearing who is asserting that the

employer is not eligible for the

exception.

(f) The administrative law judge

proceeding shall not be an appeal or

review of the Administrator’s ruling on

a request for a cease and desist order

pursuant to §llll.615.

§llll.650 Decision and order of

administrative law judge.

(a) Within 90 calendar days after

receipt of the transcript of the hearing,

the administrative law judge shall issue

a decision. If any party desires review

of the decision, including judicial

review, a petition for Secretary’s review

thereof shall be filed as provided in

§ llll.655 of this subpart. If a

petition for review is filed, the decision

of the administrative law judge shall be

inoperative unless and until the

Secretary issues an order affirming the

decision, or, unless and until 30

calendar days have passed after the

Secretary’s receipt of the petition for

review and the Secretary has not issued

notice to the parties that the Secretary

will review the administrative law

judge’s decision.

(b) The decision of the administrative

law judge shall include a statement of

findings and conclusions, with reasons

and basis therefor, upon each material

issue presented on the record. The

decision shall also include an

appropriate order which may affirm,

deny, reverse, or modify, in whole or in

part, the determination of the

Administrator; the reason or reasons for

such order shall be stated in the

decision. The administrative law judge

shall not render determinations as to the

legality of a regulatory provision or the

constitutionality of a statutory

provision.

(c) The decision shall be served on all

parties in person or by certified or

regular mail.

§llll.655 Secretary’s review of

administrative law judge’s decision.

(a) The Administrator or any

interested party desiring review of the

decision and order of an administrative

law judge shall petition the Secretary to

review the decision and order. To be

effective, such petition shall be received

by the Secretary within 30 calendar

days of the date of the decision and

order. Copies of the petition shall be

served on all parties and on the

administrative law judge.

(b) No particular form is prescribed

for any petition for Secretary’s review

permitted by this subpart. However, any

such petition shall:

(1) Be dated;

(2) Be typewritten or legibly written;

(3) Specify the issue or issues stated

in the administrative law judge decision

and order giving rise to such petition;

(4) State the specific reason or reasons

why the party petitioning for review

believes such decision and order are in

error;

(5) Be signed by the party filing the

petition or by an authorized

representative of such party;

(6) Include the address at which such

party or authorized representative

desires to receive further

communications relating thereto; and

(7) Attach copies of the administrative

law judge’s decision and order, and any

other record documents which would

assist the Secretary in determining

whether review is warranted.

(c) Whenever the Secretary

determines to review the decision and

order of an administrative law judge, a

notice of the Secretary’s determination

shall be served upon the administrative

law judge and upon all parties to the
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3975

proceeding within 30 calendar days

after the Secretary’s receipt of the

petition for review.

(d) Upon receipt of the Secretary’s

notice, the Office of Administrative Law

Judges shall within fifteen calendar days

forward the complete hearing record to

the Secretary.

(e) The Secretary’s notice may specify:

(1) The issue or issues to be reviewed;

(2) The form in which submissions

shall be made by the parties (e.g.,

briefs); and

(3) The time within which such

submissions shall be made.

(f) All documents submitted to the

Secretary shall be filed with the

Secretary of Labor, U.S. Department of

Labor, Washington, DC 20210,

Attention: Executive Director, Office of

Administrative Appeals, room S–4309.

An original and two copies of all

documents shall be filed. Documents are

not deemed filed with the Secretary

until actually received by the Secretary.

All documents, including documents

filed by mail, shall be received by the

Secretary either on or before the due

date.

(g) Copies of all documents filed with

the Secretary shall be served upon all

other parties involved in the

proceeding. Service upon the

Administrator shall be in accordance

with §llll.640(b) of this part.

(h) The Secretary’s final decision shall

be issued within 180 calendar days from

the date of the notice of intent to review.

The Secretary’s decision shall be served

upon all parties and the administrative

law judge.

(i) Upon issuance of the Secretary’s

decision, the Secretary shall transmit

the entire record to the Chief

Administrative Law Judge for custody

pursuant to §llll.660 of this part.

§llll.660 Administrative record.

The official record of every completed

administrative hearing procedure

provided by subparts F and G of this

part shall be maintained and filed under

the custody and control of the Chief

Administrative Law Judge. Upon receipt

of a complaint seeking review of the

final agency action in a United States

District Court, the Chief Administrative

Law Judge shall certify the official

record and shall transmit such record to

the clerk of the court.

§llll.665 Notice to the Attorney

General and the Employment and Training

Administration.

(a) The Administrator shall promptly

notify the Attorney General and ETA of

the entry of a cease and desist order

pursuant to §llll.615 of this part.

The order shall remain in effect until

the completion of the Administrator’s

investigation and any subsequent

proceedings pursuant to §llll.630

of this part, unless the Administrator

notifies the Attorney General and ETA

of the entry of a subsequent order lifting

the prohibition.

(1) The Attorney General, upon

receipt of notification from the

Administrator that a cease and desist

order has been entered against an

employer:

(i) Shall not permit the vessels owned

or chartered by the attesting employer to

use alien crewmembers to perform the

longshore activity(ies) at the port or

location in the State of Alaska specified

in the cease and desist order; and

(ii) Shall, in the case of an employer

seeking to utilize the automated vessel

exception, require that such employer

not use alien crewmembers to perform

the longshore activity(ies) at the port or

location in the State of Alaska specified

in the cease and desist order, without

having on file with ETA an attestation

pursuant to §llll.520 of this part.

(2) ETA, upon receipt of the

Administrator’s notice shall, in the case

of an attesting employer, suspend the

employer’s attestation, either in whole

or in part, for the activity(ies) and port

or location in the State of Alaska

specified in the cease and desist order.

(b) The Administrator shall notify the

Attorney General and ETA of the final

determination of a violation by an

attesting employer or of the ineligibility

of an employer for the automated vessel

exception, upon the earliest of the

following events:

(1) Where the Administrator

determines that there is a basis for a

finding of violation by an attesting

employer or a finding of

nonapplicability of the automated vessel

exception, and no timely request for

hearing is made pursuant to

§ llll.630 of this part;

(2) Where, after a hearing, the

administrative law judge issues a

decision and order finding a violation

by an attesting employer or finding

inapplicable the automated vessel

exception, and no timely petition for

review to the Secretary is made

pursuant to §llll.655 of this part;

or

(3) Where a petition for review is

taken from an administrative law

judge’s decision finding a violation or

finding inapplicable the automated

vessel exception, and the Secretary

either declines within thirty days to

entertain the appeal, pursuant to

§ llll.655(c) of this part, or the

Secretary affirms the administrative law

judge’s determination; or

(4) Where the administrative law

judge finds that there was no violation

by an attesting employer or that the

automated vessel exception does apply,

and the Secretary, upon review, issues

a decision pursuant to §llll.655 of

this part, holding that a violation was

committed by an attesting employer or

holding that the automated vessel

exception does not apply.

(c) The Attorney General, upon

receipt of notification from the

Administrator pursuant to paragraph (b)

of this section:

(1) Shall not permit the vessels owned

or chartered by the attesting employer to

enter any port of the U.S. for a period

of up to one year;

(2) Shall, in the case of an employer

determined to be ineligible for the

automated vessel exception, thereafter

require that such employer not use alien

crewmembers(s) to perform the

longshore activity(ies) at the specified

port or location in the State of Alaska

without having on file with ETA an

attestation pursuant to §llll.520 of

this part; and

(3) Shall, in the event that the

Administrator’s notice constitutes a

conclusive determination (pursuant to

§ llll.670) that the prevailing

practice at a particular U.S. port does

not permit the use of nonimmigrant

alien crewmembers for particular

longshore activity(ies), thereafter permit

no employer to use alien crewmembers

for the particular longshore activity(ies)

at that port.

(d) ETA, upon receipt of the

Administrator’s notice pursuant to

paragraph (b) of this section:

(1) Shall, in the case of an attesting

employer, suspend the employer’s

attestation, either in whole or in part,

for the port or location at issue and for

any other U.S. port, and shall not accept

for filing any attestation submitted by

the employer for a period of 12 months

or for a shorter period if such is

specified for that employer by the

Attorney General; and

(2) Shall, if the Administrator’s notice

constitutes a conclusive determination

(pursuant to §llll.670) that the

prevailing practice at a particular U.S.

port does not permit the use of alien

crewmembers for the longshore

activity(ies), thereafter accept no

attestation under the prevailing practice

exception on Form ETA 9033 from any

employer for the performance of the

activity(ies) at that port, and shall

invalidate any current attestation under

the prevailing practice exception on

Form ETA 9033 for any employer for the

performance of the activity(ies) at that

port.
3976 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations

§llll.670 Federal Register notice of

determination of prevailing practice.

(a) Pursuant to §llll.625(b), the

Administrator shall publish in the

Federal Register a notice of the

Administrator’s determination of any

investigation regarding the prevailing

practice for the use of alien

crewmembers for particular longshore

activity(ies) in a particular U.S. port

(whether under an attestation or under

the automated vessel exception). Where

the Administrator has determined that

the prevailing practice in that U.S. port

does not permit such use of alien

crewmembers, and no timely request for

a hearing is filed pursuant to

§ llll.630, the Administrator’s

determination shall be the conclusive

determination for purposes of the Act

and subparts F and G of this part; the

Attorney General and ETA shall, upon

notice from the Administrator, take the

actions specified in §llll.665.

Where the Administrator has

determined that the prevailing practice

in that U.S. port at the time of the

investigation permits such use of alien

crewmembers, the Administrator shall,

in any subsequent investigation, give

that determination appropriate weight,

unless the determination is reversed in

proceedings under §llll.630 or

§ llll.655.

(b) Where an interested party,

pursuant to §llll.630, requests a

hearing on the Administrator’s

determination, the Administrator shall,

upon the issuance of the decision of the

administrative law judge, publish in the

Federal Register a notice of the judge’s

decision as to the prevailing practice for

the longshore activity(ies) and U.S. port

at issue, if the administrative law judge:

(1) Reversed the determination of the

Administrator published in the Federal

Register pursuant to paragraph (a) of

this section; or

(2) Determines that the prevailing

practice for the particular activity in the

port does not permit the use of alien

crewmembers.

(c) If the administrative law judge

determines that the prevailing practice

in that port does not permit such use of

alien crewmembers, the judge’s decision

shall be the conclusive determination

for purposes of the Act and subparts F

and G of this part (unless and until

reversed by the Secretary on

discretionary review pursuant to

§ llll.655). The Attorney General

and ETA shall upon notice from the

Administrator, take the actions specified

in §llll.665.

(d) In the event that the Secretary,

upon discretionary review pursuant to

§ llll.655, issues a decision that

reverses the administrative law judge on

a matter on which the Administrator has

published notices in the Federal

Register pursuant to paragraphs (a) and

(b) of this section, the Administrator

shall publish in the Federal Register a

notice of the Secretary’s decision and

shall notify the Attorney General and

ETA.

(1) Where the Secretary reverses the

administrative law judge and

determines that, contrary to the judge’s

decision, the prevailing practice for the

longshore activity(ies) in the U.S. port at

issue does not permit the use of alien

crewmembers, the Secretary’s decision

shall be the conclusive determination

for purposes of the Act and subparts F

and G of this part. Upon notice from the

Administrator, the Attorney General and

ETA shall take the actions specified in

§ llll.665.

(2) Where the Secretary reverses the

administrative law judge and

determines that, contrary to the judge’s

decision, the use of alien crewmembers

is permitted by the prevailing practice

for the longshore activity(ies) in the U.S.

port at issue, the judge’s decision shall

no longer have the conclusive effect

specified in paragraph (b) of this

section. Upon notice from the

Administrator, the Attorney General and

ETA shall cease the actions specified in

§ llll.665.

§llll.675 Non-applicability of the

Equal Access to Justice Act.

A proceeding under subpart G of this

part is not subject to the Equal Access

to Justice Act, as amended, 5 U.S.C. 504.

In such a proceeding, the administrative

law judge shall have no authority to

award attorney fees and/or other

litigation expenses pursuant to the

provisions of the Equal Access to Justice

Act.

Adoption of the Joint Interim Final

Rule

The agency specific adoption of the

joint interim final rule, which appears at

the end of the common preamble,

appears below:

TITLE 20—EMPLOYEES’ BENEFITS

CHAPTER V—EMPLOYMENT AND

TRAINING ADMINISTRATION,

DEPARTMENT OF LABOR

Accordingly, for the reasons set forth

in the preamble, Chapter V of Title 20,

Code of Federal Regulations, is

amended as follows:

PART 655—TEMPORARY

EMPLOYMENT OF ALIENS IN THE

UNITED STATES

1. The Authority citation for part 655

is revised to read as follows:

Authority: Section 655.0 issued under 8

U.S.C. 1101(a)(15)(H) (i) and (ii), 1182 (m)

and (n), 1184, 1188, and 1288 (c) and (d); 29

U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101–

238, 103 Stat. 2099, 2103 (8 U.S.C. 1182

note); sec. 221(a), Pub. L. 101–649, 104 Stat.

4978, 5027 (8 U.S.C. 1184 note); Pub. L. 103–

206, 107 Stat 2419; and 8 CFR 214.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C.

1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C.

49 et seq.; and 8 CFR 214.2(h)(4)(i).

Subparts A and C issued under 8 U.S.C.

1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et

seq.; and 8 CFR 214.2(h)(4)(i).

Subpart B issued under 8 U.S.C.

1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29

U.S.C. 49 et seq.

Subparts D and E issued under 8 U.S.C.

1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29

U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L.

101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182

note).

Subparts F and G issued under 8 U.S.C.

1184 and 1288 (c) and (d); 29 U.S.C. 49 et

seq.; and Pub. L. 103–206, 107 Stat 2419.

Subparts H and I issued under 8 U.S.C.

1101(a)(15)(H)(i)(b), 1182(n), and 1184; 29

U.S.C. 49 et seq.; and sec. 303(a)(8), Pub. L.

102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1182

note).

Subparts J and K issued under 29 U.S.C. 49

et seq.; and sec. 221(a), Pub. L. 101–649, 104

Stat. 4978, 5027 (8 U.S.C. 1184 note).

2. Part 655 is amended by revising

subparts F and G to read as set forth in

the joint interim final rule at the end of

the common preamble.

Subpart F—Attestations by Employers

Using Alien Crewmembers for Longshore

Activities in U.S. Ports

General Provisions

Sec.

655.500 Purpose, procedure and

applicability of subparts F and G of this

part.

655.501 Overview of responsibilities.

655.502 Definitions.

655.510 Employer attestations.

655.520 Special provisions regarding

automated vessels.

Alaska Exception

655.530 Special provisions regarding the

performance of longshore activities at

locations in the State of Alaska.

655.531 Who may submit attestations for

locations in Alaska?

655.532 Where and when should

attestations be submitted for locations in

Alaska?

655.533 What should be submitted for

locations in Alaska?

655.534 The first attestation element for

locations in Alaska: Bona fide request for

dispatch of United States longshore

workers.

655.535 The second attestation element for

locations in Alaska: Employment of

United States longshore workers.

655.536 The third attestation element for

locations in Alaska: No intention or

design to influence bargaining

representative election.
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3977

655.537 The fourth attestation element for

locations in Alaska: Notice of filing.

655.538 Actions on attestations submitted

for filing for locations in Alaska.

655.539 Effective date and validity of filed

attestations for locations in Alaska.

655.540 Suspension or invalidation of filed

attestations for locations in Alaska.

655.541 Withdrawal of accepted

attestations for locations in Alaska.

Public Access

655.550 Public access.

Appendix A to Subpart F—U.S. Seaports

Subpart G—Enforcement of the Limitations

Imposed on Employers Using Alien

Crewmembers for Longshore Activities in

U.S. Ports

Sec.

655.600 Enforcement authority of

Administrator, Wage and Hour Division.

655.605 Complaints and investigative

procedures.

655.610 Automated vessel exception to

prohibition on utilization of alien

crewmembers to perform longshore

activity(ies) at a U.S. port.

655.615 Cease and desist order.

655.620 Civil money penalties and other

remedies.

655.625 Written notice, service and Federal

Register publication of Administrator’s

determination.

655.630 Request for hearing.

655.635 Rules of practice for administrative

law judge proceedings.

655.640 Service and computation of time.

655.645 Administrative law judge

proceedings.

655.650 Decision and order of

administrative law judge.

655.655 Secretary’s review of

administrative law judge’s decision.

655.660 Administrative record.

655.665 Notice to the Attorney General and

the Employment and Training

Administration.

655.670 Federal Register notice of

determination of prevailing practice.

655.675 Non-applicability of the Equal

Access to Justice Act.

Signed at Washington, DC, this 6th day of

January, 1995.

Robert B. Reich,

Secretary of Labor.

TITLE 29—LABOR

CHAPTER V—WAGE AND HOUR DIVISION,

DEPARTMENT OF LABOR

For the reasons set forth in the

preamble, part 506 of Title 29, Code of

Federal Regulations, is amended as

follows:

PART 506—ATTESTATIONS BY

EMPLOYERS USING ALIEN

CREWMEMBERS FOR LONGSHORE

ACTIVITIES IN U.S. PORTS

1. The authority citation for part 506

is revised to read as follows:

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

2. Part 506 is amended by revising

subparts F and G to read as set forth in

the joint interim final rule at the end of

the common preamble.

Subpart F—Attestations by Employers

Using Alien Crewmembers for Longshore

Activities in U.S. Ports

General Provisions

Sec.

506.500 Purpose, procedure and

applicability of subparts F and G of this

part.

506.501 Overview of responsibilities.

506.502 Definitions.

506.510 Employer attestations.

506.520 Special provisions regarding

automated vessels.

Alaska Exception

506.530 Special provisions regarding the

performance of longshore activities at

locations in the State of Alaska.

506.531 Who may submit attestations for

locations in Alaska?

506.532 Where and when should

attestations be submitted for locations in

Alaska?

506.533 What should be submitted for

locations in Alaska?

506.534 The first attestation element for

locations in Alaska: Bona fide request for

dispatch of United States longshore

workers.

506.535 The second attestation element for

locations in Alaska: Employment of

United States longshore workers.

506.536 The third attestation element for

locations in Alaska: No intention or

design to influence bargaining

representative election.

506.537 The fourth attestation element for

locations in Alaska: Notice of filing.

506.538 Actions on attestations submitted

for filing for locations in Alaska.

506.539 Effective date and validity of filed

attestations for locations in Alaska.

506.540 Suspension or invalidation of filed

attestations for locations in Alaska.

506.541 Withdrawal of accepted

attestations for locations in Alaska.

Public Access

506.550 Public access.

Appendix A to Subpart F—U.S. Seaports

Subpart G—Enforcement of the Limitations

Imposed on Employers Using Alien

Crewmembers for Longshore Activities in

U.S. Ports

Sec.

506.600 Enforcement authority of

Administrator, Wage and Hour Division.

506.605 Complaints and investigative

procedures.

506.610 Automated vessel exception to

prohibition on utilization of alien

crewmembers to perform longshore

activity(ies) at a U.S. port.

506.615 Cease and desist order.

506.620 Civil money penalties and other

remedies.

506.625 Written notice, service and Federal

Register publication of Administrator’s

determination.

506.630 Request for hearing.

506.635 Rules of practice for administrative

law judge proceedings.

506.640 Service and computation of time.

506.645 Administrative law judge

proceedings.

506.650 Decision and order of

administrative law judge.

506.655 Secretary’s review of

administrative law judge’s decision.

506.660 Administrative record.

506.665 Notice to the Attorney General and

the Employment and Training

Administration.

506.670 Federal Register notice of

determination of prevailing practice.

506.675 Non-applicability of the Equal

Access to Justice Act.

Signed at Washington, DC, this 6th day of

January, 1995.

Robert B. Reich,

Secretary of Labor.

Appendix B (Not To Be Codified in the

CFR): Form ETA 9033–A

Printed below is a copy of Form ETA

9033–A.

BILLING CODES 4510–30–P, 4510–27–P
3978 Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations
Federal Register / Vol. 60, No. 12 / Thursday, January 19, 1995 / Rules and Regulations 3979

[FR Doc. 95–964 Filed 1–18–95; 8:45 am]

BILLING CODES 4510–30–C, 4510–27–C