[Federal Register Volume 59, Number 209 (Monday, October 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26994]


[[Page Unknown]]

[Federal Register: October 31, 1994]


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DEPARTMENT OF LABOR

Office of the Secretary

 

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

AGENCY: Employment and Training Administration, Labor.

ACTION: Information collection clearance package; expedited review 
under the Paperwork Reduction Act.

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SUMMARY: The Employment and Training Administration (ETA), Department 
of Labor, in carrying out its responsibilities under the Paperwork 
Reduction Act (44 U.S.C. chapter 35, 5 CFR part 1320 (53 FR 16618, May 
10, 1988)), is submitting an information collection clearance package 
to the Office of Management and Budget (OMB). The information 
collection is required due to amendments to section 258 of the 
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) (INA). The 
amendments created an Alaska exception to the general prohibition on 
the performance of longshore work by alien crewmembers in U.S. ports. 
Under the Alaska exception, before any employer may use alien 
crewmembers to perform longshore work in the State of Alaska, it must 
submit an attestation to ETA containing the elements prescribed by the 
INA.

DATES: The Employment and Training Administration has requested an 
expedited review of this submission under the Paperwork Reduction Act; 
this OMB review has been requested to be completed by November 10, 
1994.

FOR FURTHER INFORMATION CONTACT: Comments and questions regarding the 
collection of information on Form ETA 9033-A, Attestation by Employers 
Using Alien Crewmembers for Longshore Activities in the State of 
Alaska, should be directed to Kenneth A. Mills, Departmental Clearance 
Officer, Office of Information Management, U.S. Department of Labor, 
200 Constitution Avenue, NW., Room N-1301, Washington, DC 20210, ((202) 
219-5095).
    Comments should also be sent to the Office of Information and 
Regulatory Affairs, Attn: OMB Desk Officer for ETA, Office of 
Management and Budget, Room 3001, Washington, DC 20503, ((202) 395-
7316).
    Any member of the public who wants to comment on the information 
collection clearance package which has been submitted to OMB should 
advise Mr. Mills of this intent at the earliest possible date.

    Average Burden Hours Per Response: 3.
    Frequency of Response: Annually.
    Number of Respondents: 350.
    Annual Burden Hours: 1,050.
    Annual Responses: 350.
    Affected Public: Businesses or other for-profit and Small 
businesses or organizations.
    Respondents Obligation to Comply: Required to obtain or retain 
benefit.

    Signed at Washington, DC, this 25th day of October, 1994.
Kenneth A. Mills,
Departmental Clearance Officer.

BILLING CODE 4510-30-P

TN31OC94.000


TN31OC94.001


BILLING CODE 4510-30-C

Appendix A--Supporting Statement Attestation by Employers Seeking To 
Utilize Alien Crewmembers To Perform Longshore Activities

    (1) The Employment and Training Administration (ETA) and the 
Employment Standards Administration (ESA) of the Department of Labor 
(DOL or Department) are promulgating regulations governing the filing 
and enforcement of attestations by employers seeking to use alien 
crewmembers to perform longshore activities at locations in the State 
of Alaska.
    The attestation process is to be administered by ETA; complaints 
and investigations regarding attestations are the responsibility of 
ESA.
    The Coast Guard Authorization Act of 1993, Public Law 103-206, 107 
Stat. 2419 (Act), was enacted on December 20, 1993. Among other things, 
the Act amended section 258 of the INA (8 U.S.C. 1101 et seq.) by 
creating an Alaska exception to the general prohibition on the 
performance of longshore work by alien crewmembers in U.S. ports.
    An employer seeking to employ alien crewmembers at locations in the 
State of Alaska under the Alaska exception shall submit an attestation. 
An attestation must be filed by each individual employer but may apply 
to multiple vessels and multiple locations within the State of Alaska.
    (2) The Department proposes to review an attestation to ensure that 
it is received at least 30 days before the date of the first 
performance of the longshore activity, unless the employer could not 
have reasonably anticipated the need to file an attestation for that 
location at that time. In no case, however, will ETA accept an 
attestation received less than 24 hours prior to the date of the first 
performance of the activity.
    The Department will review an attestation to assure that it is 
signed, completed, contains no obvious inaccuracies, and is not, on its 
face, inconsistent with the documentation submitted in support thereof. 
In addition, the Department proposes that it will review attestations 
to determine the following: (1) Whether the Administrator, Wage and 
Hour Division, has notified ETA of a determination that an employer has 
misrepresented or failed to comply with an attestation previously 
submitted and accepted for filing, barring the employer from entry to 
any U.S. port for up to one year; (2) whether the Administrator has 
issued a cease and desist order that would affect the attesting 
employer and location at which longshore work is to be performed; and 
(3) whether the Administrator has advised ETA that the employer has 
failed to comply with any penalty or remedy assessed.
    If the attestation is properly filled out and includes accompanying 
documentation for the requirement at Sec. ______.537 of the subpart, 
and does not fall within one of the categories set forth at paragraph 
(b) of Sec. ______.538, ETA shall accept the attestation for filing, 
notify the INS in writing of the filing, and return to the employer one 
copy of the attestation form submitted, with ETA's acceptance indicated 
thereon. The employer may then utilize alien crewmembers for the 
longshore work at the locations cited in the attestation in accordance 
with subpart F of part 655 and with INS regulations.
    ETA shall make available for public examination in Washington, 
D.C., a list of employers which have filed attestations, and for each 
such employer, a copy of the employer's attestation and accompanying 
documentation it has received.
    (3) It is anticipated that the documentation required to satisfy 
the attestation elements is available from existing data sources, and 
that the burden will be considerably less in the second and subsequent 
years in which the employer submits an attestation.
    (4) The procedures and documentation requirements are sufficiently 
specific to avoid duplication of activities. At the same time, the 
procedures establish a process that will facilitate investigations of 
complaints against employers and enforcement of sanctions where 
necessary. The regulations set forth a process which: (1) requires 
attestations that are specific with respect to employer statements and 
promises; (2) limits the Department's review of an attestation to a 
simple check to assure that it is signed, completed, contains no 
obvious inaccuracies, and is not, on its face, inconsistent with the 
documentation submitted in support thereof; (3) describes the 
information that employers must retain to document the validity of 
their statements; and (4) establishes a system for the receipt of 
complaints, and their investigation and disposition, including the 
imposition of penalties where warranted.
    (5) Section 258 of the INA prohibits the use of alien crewmembers 
to perform longshore activity in U.S. ports with five exceptions as 
follows:
    (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;
    (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; and
    (e) 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 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, labor organizations recognized as exclusive bargaining 
representatives of United States longshore workers, and private dock 
operators.
    In developing the joint interim final regulations to implement 
Section 258 of the INA at 20 CFR part 655, subparts F and G, and at 29 
CFR part 505, subparts F and G, the Department has carefully considered 
the issues pertinent to the filing of attestations by employers to use 
alien crewmembers to perform longshore activities in the State of 
Alaska.
    The Department proposes to review an attestation only to ensure 
that it is timely, completed properly, includes the required 
documentation, and that the documentation is not, on its face, 
inconsistent with the attestation.
    This interim final rule does not include an administrative appeals 
process within ETA for attestations. 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 are accepted by ETA may be objected to by any 
aggrieved party through the complaint process under subpart G, and 
procedures for investigation, hearing and appeal are provided therein. 
In the event a complaint is filed with the Department, the employer 
must have sufficient documentation available on file at the place of 
business of its U.S. agent to meet the burden of proof for the validity 
of each attestation element. Documentation submitted or retained 
pursuant to this part shall either be in English or be accompanied by 
an English translation.
    The Department believes that this is consistent with the statute's 
intent for a streamlined attestation system for filing and a complaint-
driven process for the enforcement of the law's sanctions for 
violators.
    (6) The Department 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.
    (7) The Department would be in direct violation of the law and 
regulations if this information were not collected.
    (8) This data collection is consistent with 5 CFR 1320.6.
    (9) Efforts to consult with persons outside the agency to obtain 
their views on data availability, collection and reporting will involve 
consideration of comments and responses on the interim final 
regulations published in the Federal Register and the rule-related 
notice. All comments will be considered in developing final 
regulations.
    (10) Documentation is not exempt from disclosure under the FOIA. 
Public law requires that all attestations be available for public 
inspection at the Department.
    (11) Does not involve sensitive questions.
    (12) Federal Government Cost--$16,162.50.
    The average Federal Government cost for the year of operation is 
estimated at $16,162.50 as follows:

Estimated Hours
    Data Entry/Review--.75 hour
    Process/transmittal--.25 hour
Staff Cost Per Attestation--$14.75
    Professional (11 level, step 5)--

$19.10 x .50 hr...........................................   =     $9.55
                                                                        

Clerical (5 level, step 5)--

$10.41 x .50 hr...........................................   =      5.20
                                                               ---------
                                                                  $14.75
                                                                        

Estimated Total Cost--$16,162.50

Staff $14.75 x 350.....................................   =    $5,162.50
Equipment (computer hardware)..........................        10,000.00
Printing...............................................         1,000.00
                                                            ------------
                                                              $16,162.50
                                                                        

    (13) ETA estimates that approximately 350 attestations per year 
will be submitted. 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 information, completing and 
reviewing the application, and providing the notice of filing.
    The overall hours needed for each respondent to produce the 
required information: 

350 x .50 hr. (review instructions).......................   =    175.00
350 x 1 hr. (compile info./file)..........................   =    350.00
350 x .75 hr. (complete/submit/provide notice)............   =    262.50
350 x .75 hr. (documentation/maintenance).................   =    262.50
10 x .25 hr. (file complaints)............................   =      2.50
                                                               ---------
  Total Hours.............................................      1052.50 
                                                                        

    The estimated time for information collection, processing, review 
and maintenance is based on the Department's operating experience under 
the existing program governing attestations under the prevailing 
practice exception. The estimate is further derived through experience 
and testing of forms completion and information collection activities.
    The estimated level of attestations for the year is based upon the 
Department's operational experience under the existing program 
governing attestations under the prevailing practice exception. At 
present the Department has no information basis for projecting employer 
burden for subsequent years. This is a new program and it is not clear 
how the following variable will impact program workload:
    (1) The attestation may be filed for multiple locations in the 
State of Alaska. Under the existing program governing the performance 
of longshore work by alien crewmembers under the prevailing practice 
exception, an attestation must be filed for each port at which an 
employer intends to utilize alien crewmembers.
    (14) This is a new data collection request. This data collection 
will count as a +1,050 hour program change towards ETA's Information 
Collection Budget.
    (15) No collection of information will be published for statistical 
use.

[FR Doc. 94-26994 Filed 10-28-94; 8:45 am]
BILLING CODE 4510-30-P