[Federal Register Volume 61, Number 173 (Thursday, September 5, 1996)]
[Rules and Regulations]
[Pages 46988-46991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22510]
[[Page 46987]]
_______________________________________________________________________
Part III
Department of Labor
Employment and Training Administration
20 CFR Part 655
Wage and Hour Division
29 CFR Part 506
_______________________________________________________________________
Attestations by Employers Using Alien Crewmembers for Longshore
Activities in U.S. Ports; Final Rule
Federal Register / Vol. 61, No. 173 / Thursday, September 5, 1996 /
Rules and Regulations
[[Page 46988]]
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: Final rule.
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SUMMARY: The Employment and Training Administration (ETA) and the
Employment Standards Administration (ESA) of the Department of Labor
(DOL or Department) are promulgating regulations to implement
amendments to existing regulations governing the filing and enforcement
of attestations by employers seeking to use alien crewmembers to
perform longshore work in the U.S. The amendments relate to employers'
use of alien crewmembers to perform longshore work at locations in the
State of Alaska. Under the Immigration and Nationality Act, employers,
in certain circumstances, are required to submit attestations to DOL in
order to be allowed by the Immigration and Naturalization Service (INS)
to use alien crewmembers to perform specified longshore activities at
locations in the State of Alaska. The attestation process is
administered by ETA, while complaints and investigations regarding the
attestations are handled by ESA.
DATES: Effective Date: The final rule promulgated in this document is
effective on October 7, 1996.
FOR FURTHER INFORMATION CONTACT: On 20 CFR part 655, subpart F, and 29
CFR part 506, subpart F, contact Flora T. Richardson, Chief, Division
of Foreign Labor Certifications, U.S. Employment Service, Employment
and Training Administration, Department of Labor, Room N-4456, 200
Constitution Avenue, NW., Washington, DC 20210. Telephone: (202) 219-
5263 (this is not a toll-free number).
On 20 CFR part 655, subpart G, and 29 CFR part 506, subpart G,
contact R. Thomas Shierling, Immigration Team, Office of Enforcement
Policy, Wage and Hour Division, Employment Standards Administration,
Department of Labor, Room S-3502, 200 Constitution Avenue, NW.,
Washington, DC 20210. Telephone: (202) 501-3884 (this is not a toll-
free number).
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
The information collection requirements of the Form ETA 9033-A
under the Alaska exception and contained in this rule have been
submitted to the Office of Management and Budget (OMB) for clearance
under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and
have been assigned OMB Control No. 1205-0352. The information
collection requirements of the Form ETA 9033 under the prevailing
practice exception, assigned OMB Control No. 1205-0309, remain
unchanged by this rulemaking. The Form ETA 9033-A was published in the
Federal Register with the interim final rule to implement the Alaska
exception on January 19, 1995 (60 FR 3950). The Form ETA 9033 was
published in the Federal Register with the final rule to implement the
prevailing practice exception on September 8, 1992 (57 FR 40966).
The Employment and Training Administration estimates that employers
will be submitting up to 350 attestations per year under the Alaska
exception. The public reporting burden for this collection of
information is estimated to average 3 hours per response, including the
time for reviewing instructions, searching existing information/data
sources, gathering and maintaining the information/data needed, and
completing and reviewing the attestation. It is likely that the burden
will be considerably less in the second and subsequent years in which
an employer submits an attestation.
II. Background
The Coast Guard Authorization Act of 1993, Pub. L. 103-206, 107
Stat. 2419 (Coast Guard Act), was enacted on December 20, 1993. Among
other things, the Coast Guard Act amended section 258 of the
Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.) which
places limitations on the performance of longshore work by alien
crewmembers in U.S. ports.
The loading and unloading of vessels in U.S. ports had
traditionally been performed by U.S. longshore workers. However, until
passage of the Immigration Act of 1990 (IMMACT '90), Pub. L. 101-649,
104 Stat. 4978, alien crewmembers had also been allowed by Immigration
and Naturalization Service (INS) regulation to do this kind of work in
U.S. ports because longshore work was considered to be within the scope
of permitted employment for alien crewmembers. The IMMACT '90 limited
this practice in order to provide greater protection to U.S. longshore
workers.
Prior to the Coast Guard Act's enactment, section 258 of the INA
permitted alien crewmembers admitted with D-visas to perform longshore
work only in four specific instances: (a) Where the vessel's country of
registration does not prohibit U.S. crewmembers from performing
longshore work in that country's ports and nationals of a country which
does not prohibit U.S. crewmembers from performing longshore work in
that country's ports hold a majority of the ownership interest in the
vessel; (b) where there is in effect in a local port one or more
collective bargaining agreement(s), each covering at least thirty
percent of the longshore workers at a particular port and each
permitting the activity to be performed by alien crewmembers; (c) where
there is no collective bargaining agreement covering at least thirty
percent of the longshore workers and an attestation has been filed with
the Department which states that the use of alien crewmembers to
perform longshore work is permitted under the prevailing practice of
the port, that the use of alien crewmembers is not during a strike or
lockout, that such use is not intended or designed to influence the
election of a collective bargaining representative, and that notice has
been provided to longshore workers at the port; and (d) where the
activity is performed with the use of automated self-unloading conveyor
belts or vacuum-actuated systems; provided that, the Secretary of Labor
(Secretary) has not found that an attestation is required because it
was not the prevailing practice to utilize alien crewmembers to perform
the activity or because the activity was performed during a strike or
lockout or in order to influence the election of a collective
bargaining representative. For this purpose, the term ``longshore
work'' does not include the loading or unloading of hazardous cargo, as
determined by the Secretary of Transportation, for safety and
environmental protection and no attestations were or are necessary for
the loading and unloading of such cargo.
The Department published final regulations in the Federal Register
on September 8, 1992 (57 FR 40966), to implement the prevailing
practice exception under IMMACT '90. The fishing industry and the
carriers worked together to comply with the law by
[[Page 46989]]
filing the necessary attestations to qualify under the prevailing
practice exception. The International Longshore and Warehousemen's
Union responded to protect the jurisdiction of U.S. longshore workers
by filing complaints pursuant to the attestations and seeking cease and
desist orders to halt the performance of longshore work by the
carrier's alien crewmembers.
The basic problem was that the prevailing practice exception was
apparently designed for established port areas. A lack of flexibility
in the remote areas of Alaska where the longshore work needed to be
performed, in some cases, prevented carriers from complying with
Departmental regulations. As a result, even where there were no U.S.
longshore workers available for the particular employment, employers in
some of these remote areas were prohibited from performing the
necessary longshore work, resulting in potential adverse impacts on the
Alaskan fishing industry including the loss of American jobs. In order
to remedy the situation, Congress consulted with representatives of the
longshoremen's unions and the carriers and enacted special provisions
recognizing the unique character of Alaskan ports.
The Coast Guard Act amended the INA by establishing a new Alaska
exception to the general prohibition on the performance of longshore
work by alien crewmembers in U.S. ports. The Alaska exception provides
that the prohibition does not apply where the longshore work is to be
performed at a particular location in the State of Alaska and an
attestation with accompanying documentation has been filed by the
employer with the Department of Labor. The INA provides, however, that
longshore work consisting of the use of an automated self-unloading
conveyor belt or vacuum-actuated system on a vessel shall continue to
be governed by section 258(c) of the INA (8 U.S.C. 1288(c)), even at
locations in the State of Alaska. If, however, it is determined that an
attestation is required for longshore work at locations in the State of
Alaska consisting of the use of automated equipment, i.e., because the
Administrator has determined, pursuant to a complaint, that it is not
the prevailing practice to use alien crewmembers to perform the
longshore activity(ies) through the use of the automated equipment, or
was during a strike or lockout or intended to influence an election of
a bargaining representative for workers in the local port, or if the
Administrator issues a cease and desist order against use of the
automated equipment without such attestation, the required attestation
shall be filed by the employer under the Alaska exception and not under
the prevailing practice exception. The amended INA provides that the
prevailing practice exception no longer applies in case of longshore
work to be performed at a particular location in the State of Alaska.
As a result, U.S. ports in the State of Alaska which were previously
listed in Appendix A, ``U.S. Seaports,'' were removed from the Appendix
in the interim final rule.
The Alaska exception is intended to provide a preference for hiring
United States longshoremen over the employer's alien crewmembers. The
employer must attest that, before using alien crewmen to perform the
activity specified in the attestation, the employer will make a bona
fide request for and employ United States longshore workers who are
qualified and available in sufficient numbers from contract stevedoring
companies and private dock operators. The employer must also provide
notice of filing the attestation to such contract stevedoring companies
and private dock operators, and to labor organizations recognized as
exclusive bargaining representatives of United States longshore
workers. Finally, the employer must attest that the use of alien
crewmembers to perform longshore work is not intended or designed to
influence the election of a bargaining representative for workers in
the State of Alaska.
III. Analysis of Comments on the Interim Final Rule
Comments regarding the January 19, 1995, interim final rule were
received from 3 entities; a member of the general public through a U.S.
Senator; a law firm; and a Federal government agency. None of the 3
comments received concerned the same issue so each will be discussed in
turn.
A law firm submitted a comment on behalf of certain foreign
carriers involved in longshore operations in Alaska. The firm's comment
concerned the reporting and recordkeeping burden of the Department's
Attestation by Employers Using Alien Crewmembers for Longshore
Activities at Locations in the State of Alaska (Form ETA 9033-A).
The firm proposed that the Form ETA 9033-A be amended to allow
employers to file attestations with multiple validity periods and to
further amend the attestation to add a new box ``(e)'' to Item 8, to be
entitled ``Supplemental Attestation.'' If adopted, in the event of a
change in circumstances, an existing attestation would be photocopied,
box ``(e)'' checked, and a narrative description of the changed
circumstances attached, rather than the employer having to file a new
attestation.
With regard to the first suggestion, section 258(d)(4) of the INA
(8 U.S.C. 1288) provides that ``attestations filed under [the Alaska
exception] shall expire at the end of the 1-year period beginning on
the date the employer anticipates the longshore work to begin, as
specified in the attestations filed with the Secretary of Labor.'' We
believe that this statutory provision would preclude the Department
from incorporating the suggested change. Further, ETA, the agency which
will process such attestations, indicates that allowing multiple
validity periods to apply to a single attestation would be extremely
burdensome to administer. In the interim final rule, and continued here
in the final rule, the regulations provided that an employer may file a
single attestation for multiple locations in the State of Alaska,
unlike attestations under the prevailing practice exception which are
filed for a particular port. The Department believes this provision is
a reasonable accommodation to employers of alien crewmembers and feels
the suggested change would render this accommodation unpalatable.
The Department also opposes the second proposed change. First, it
is not clear what a ``change in circumstances'' means. The Department
believes that the example provided by the commenter, which concerned
the opening of a new dock or facility in a new location, should
necessitate filing of a new attestation by the employer. The fourth
attestation element under the INA, provision of notice, is based upon
actions taken by an employer to comply with the terms of the
attestation on or before the date the attestation is filed. Therefore,
if a new private dock opened in a new location, an employer should be
required to submit a new attestation, attesting that notice of filing
has been provided to the operator of the new private dock. The
requirement that an employer provide notice of filing and request
confirmation of coverage under the Longshore and Harbor Workers'
Compensation Act is the only pre-filing requirement contained in the
regulation, the other three attestation elements being prospective in
nature. Since an employer must provide the required notice to the
operator of the new private dock, whether the suggestion is adopted or
not, we believe that the burden incurred by filing a new attestation,
as compared to filing an amendment to an existing attestation with a
narrative description of the change, is a nominal one. It should be
noted that, as a matter of enforcement policy, an employer will
[[Page 46990]]
not be required to submit a new attestation in the event that a new
private dock opened in a previously disclosed location. In that event,
an employer will be considered to be in compliance as long as the
required notice is provided to the operator of the new private dock and
such is properly documented by the employer.
The second comment, filed by a member of the general public through
the office of U.S. Senator Ted Stevens (R-AK), concerned longshore work
performed by Greek and Russian vessels operating in the Aleutian
Islands off Alaska under the reciprocity exception. See 8 U.S.C.
1288(e). The Department has no role in administering the reciprocity
exception, which allows employers to use alien crewmembers to perform
longshore activities in U.S. ports if the vessel is registered in a
country which by law, regulation, or in practice does not prohibit such
activity by crewmembers aboard U.S. vessels, and nationals of such a
country own a majority of the ownership interest in the vessel.
The final comment received was from the Chief Counsel for Advocacy,
Small Business Administration, who expressed concern that the
regulations governing the Alaska exception may indeed have a
significant economic impact on a substantial number of small
businesses, contrary to the Department's certification under 5 U.S.C.
605(b). Further, the Chief Counsel questioned the Department's
authority to publish the regulation as an interim final rule without a
prior notice of proposed rulemaking.
As described above, due to a lack of flexibility in the remote
areas of Alaska under the pre-existing ``prevailing practice
exception'' to the general prohibition, representatives of the
longshoremen's unions and the carriers, working in concert with the
Alaskan Congressional delegation, enacted special provisions
recognizing the unique character of Alaskan sea ports. The statute was
a direct result of these negotiations between the affected parties.
Departmental officials worked closely with all relevant parties in
drafting the rule, both union and carrier representatives, including
meeting on two separate occasions to discuss implementation of the
statutory provisions.
Specific language in the statute prohibited employers from filing
attestations for locations in the State of Alaska under the pre-
existing prevailing practice exception, resulting in an adverse impact
on the Alaskan fishing industry and potential loss of jobs and revenue
for both U.S. workers and employers. Further, some employers may have
been encouraged by economic exigencies to utilize foreign crewmembers
in longshore work illegally or to reflag their vessels to qualify for
the ``reciprocity exception.'' Either of these actions by shippers
would have diminished employment opportunities for Alaskan workers
seeking longshore work, contrary to the purposes of the Coast Guard
Act. The Department received evidence from union representatives that
delay in implementing the Alaska exception would indeed have had an
adverse impact on the employment opportunities of Alaskan workers
seeking longshore work. Consequently, at the time, the Department, for
good cause, determined that the potential harm made it impracticable
and contrary to the public interest to delay implementation by
publishing the rule as a proposed rule.
The Department believes the program and the regulations will in
fact have a positive economic impact on small businesses such as
contract stevedoring companies. These firms will benefit from an
increase in their business opportunities which would not occur but for
the Department's regulations to implement the Alaska exception. The
purpose of the Alaska exception is to insure that, to the extent
possible, U.S. contract stevedoring companies and private dock
operators, some of which may be small businesses, are given a chance to
compete for jobs which would otherwise go to foreign nationals. The
only burden imposed by the regulations will fall upon foreign shippers
who seek to employ alien workers in longshore work on foreign-flagged
vessels which are registered in countries that do not afford similar
work opportunities for U.S. longshoremen.
Finally, it is noted that other than the Chief Counsel's letter and
despite the fact that the Department notified all relevant parties of
the publication of the interim final rule in the Federal Register, the
two comments described above were the only others received, neither of
which concerned the economic impact of the rule on small businesses.
This is a new program and we believe that the paperwork burden will
be reduced in subsequent years due to increased familiarity with the
provisions contained in the regulations. The Department is very
concerned about the reporting and record keeping burden on the
regulated community, including small businesses, and is fully committed
to reducing this burden where appropriate. In the instant case,
however, we believe that the reporting and record keeping requirements
under the Alaska exception and contained herein are required to
maintain the program's integrity and to effectively carry out the
Secretary's responsibilities in protecting the wages and working
conditions of U.S. workers under the INA.
The regulations for the attestation program for employers using
alien crewmembers for longshore work in the United States are published
at 20 CFR part 655, subparts F and G, and 29 CFR part 506, subparts F
and G, 60 FR 3950 (January 19, 1995).
Regulatory Impact and Administrative Procedure
E.O. 12866
In accordance with Executive Order 12866, the Department of Labor
has determined that this is not a significant regulatory action as
defined in section 3(f) of the Order.
Regulatory Flexibility Act
The Department of Labor has notified the Chief Counsel for
Advocacy, Small Business Administration, and made the certification
pursuant to the Regulatory Flexibility Act at 5 U.S.C. 605(b), that the
rule does not have a significant economic impact on a substantial
number of small entities.
Catalog of Federal Domestic Assistance Number
This program is not listed in the Catalog of Federal Domestic
Assistance.
List Of Subjects
20 CFR Part 655
Administrative practice and procedure, Agriculture, Aliens,
Crewmembers, Employment, Enforcement, Fashion Models, Forest and Forest
products, Guam, Health professions, Immigration, Labor, Longshore work,
Migrant labor, Nurse, Penalties, Registered nurse, Reporting and
recordkeeping requirements, Specialty occupation, Students, Wages.
29 CFR Part 506
Administrative practice and procedures, Aliens, Crewmembers,
Employment, Enforcement, Immigration, Labor, Longshore work, Penalties,
Reporting and recordkeeping requirements.
Adoption of the Joint Final Rule
Accordingly, the interim final rule amending 20 CFR part 655,
subparts F and G, and 29 CFR part 506, subparts F and G, which was
published at 60 FR 3950 on January 19, 1995, is adopted as a final rule
without change.
[[Page 46991]]
Authority: 8 U.S.C. 1288(c) and (d).
Signed at Washington, DC, this 23rd day of August, 1996.
Robert B. Reich,
Secretary of Labor.
[FR Doc. 96-22510 Filed 9-4-96; 8:45 am]
BILLING CODE 4510-30-P; 4510-27-P