[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.

-----------------------------------------------------------------------

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.


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    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