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 Sec. 655.510 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
Secs. 655.530 through 655.541 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 Sec. 655.510 of this part except
paragraph (d) of Sec. 655.510. In lieu of complying with Sec. 655.510(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
Secs. 655.530 through 655.541 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 self-unloading conveyor belt or
vacuum-actuated 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
non-reciprocity. 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 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
non-reciprocity 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 Sec. 655.510(c)(1) of
this part.
(Approved by the Office of Management and Budget under Control No. 1205-
0309)
Alaska Exception
