(a) The Administrator, through an investigation, shall determine
whether a basis exists to make a finding that:
(1) An attesting employer has--
(i) Failed to meet conditions attested to; or
(ii) Misrepresented a material fact in an attestation.
(Note: Federal criminal statutes provide penalties of up to $10,000
and/or imprisonment of up to 5 years for knowing and willful submission
of false statements to the Federal Government. 18 U.S.C. 1001; see also
18 U.S.C. 1546.); or
(2) In the case of an employer operating under the automated vessel
exception to the prohibition on utilizing alien crewmembers to perform
longshore activity(ies) at a U.S. port, the employer--
(i) Is utilizing alien crewmember(s) to perform longshore
activity(ies) at a port where the prevailing practice has not been to
use such workers for such activity(ies); or
(ii) Is utilizing alien crewmember(s) to perform longshore
activities:
(A) During a strike or lockout in the course of a labor dispute at
the U.S. port; and/or
(B) With intent or design to influence an election of a bargaining
representative for workers at the U.S. port; or
(3) An employer failed to comply in any other manner with the
provisions of subpart F or G of this part.
(b) Any aggrieved person or organization may file a complaint of a
violation of the provisions of subpart F or G of this part.
(1) No particular form of complaint is required, except that the
complaint shall be written or, if oral, shall be reduced to writing by
the Wage and Hour Division official who receives the complaint.
(2) The complaint shall set forth sufficient facts for the
Administrator to determine--
(i) Whether, in the case of an attesting employer, there is
reasonable cause to believe that particular part or parts of the
attestation or regulations have been violated; or
(ii) Whether, in the case of an employer claiming the automated
vessel exception, the preponderance of the evidence submitted by any
interested party shows that conditions exist that would require the
employer to file an attestation.
(3) The complaint may be submitted to any local Wage and Hour
Division office; the addresses of such offices are found in local
telephone directories. The office or person receiving such a complaint
shall refer it to the office of the Wage and Hour Division administering
the area in which the reported violation is alleged to have occurred.
(c) The Administrator shall determine whether there is reasonable
cause to believe that the complaint warrants investigation. If the
Administrator determines that the complaint fails to present reasonable
cause for an investigation, the Administrator shall so notify the
complainant, who may submit a new complaint, with such additional
information as may be necessary. There shall be no hearing pursuant to
Sec. 655.625 for the Administrator's determination not to conduct an
investigation. If the Administrator determines that an investigation on
the complaint is warranted, the investigation shall be conducted and a
determination issued within 180 calendar days of the Administrator's
receipt of the complaint, or later for good cause shown.
(d) In conducting an investigation, the Administrator may consider
and make part of the investigation file any evidence or materials that
have been compiled in any previous investigation regarding the same or a
closely related matter.
(e) In conducting an investigation under an attestation, the
Administrator shall take into consideration the employer's burden to
provide facts and evidence to establish the matters asserted. In
conducting an investigation regarding an employer's eligibility for the
automated vessel exception, the Administrator shall not impose the
burden of proof on the employer, but shall consider all evidence from
any interested party in determining whether the employer is not eligible
for the exception.
(f) In an investigation regarding the use of alien crewmembers to
perform longshore activity(ies) in a U.S. port (whether by an attesting
employer or by an employer claiming the automated vessel exception), the
Administrator shall accept as conclusive proof a previous Departmental
determination, published in the Federal Register pursuant to
Sec. 655.670, establishing that such use of alien crewmembers is not the
prevailing practice for the activity(ies) and U.S. port at issue. The
Administrator shall give appropriate weight to a previous Departmental
determination published in the Federal Register pursuant to
Sec. 655.670, establishing that at the time of such determination, such
use of alien crewmembers was the prevailing practice for the
activity(ies) and U.S. port at issue.
(g) When an investigation has been conducted, the Administrator
shall,
within the time period specified in paragraph (c) of this section, issue
a written determination as to whether a basis exists to make a finding
stated in paragraph (a) of this section. The determination shall be
issued and an opportunity for a hearing shall be afforded in accordance
with the procedures specified in Sec. 655.625(d) of this part.
