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
Sec. 655.510 of this part, to ETA at the address set forth at
Sec. 655.510(b) of this part. If ETA accepts the attestation for filing,
pursuant to Sec. 655.510 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 Sec. 655.533 of this
part, to ETA at the address of the Seattle regional office as set forth
at Sec. 655.532 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 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.
