Source: 60 FR 3956, 3976, Jan. 19, 1995, unless otherwise noted.
General Provisions
(a) Purpose. (1) Section 258 of the Immigration and Nationality Act
(``Act'') prohibits nonimmigrant alien crewmembers admitted to the
United States on D-visas from performing longshore work at U.S. ports
except in five specific instances:
(i) 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 (or countries) 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, as determined by the
Secretary of State (henceforth referred to as the ``reciprocity
exception'');
(ii) 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, and each permitting the activity to be performed
under the terms of such agreement(s);
(iii) Where there is no collective bargaining agreement covering at
least thirty percent of the longshore workers at the particular port and
an attestation with accompanying documentation has been filed with the
Department of Labor attesting that, among other things, the use of alien
crewmembers to perform a particular activity of longshore work is
permitted under the prevailing practice of the particular port
(henceforth referred to as the ``prevailing practice exception'');
(iv) 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 with the Department of Labor attesting
that, among
other things, before using alien crewmembers 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,
labor organizations recognized as exclusive bargaining representatives
of United States longshore workers, and private dock operators
(henceforth referred to as the ``Alaska exception''); or
(v) Where the longshore work involves an automated self-unloading
conveyor belt or vacuum-actuated system on a vessel and the
Administrator has not previously determined that an attestation must be
filed pursuant to this part as a basis for performing those functions
(henceforth referred to as the ``automated vessel exception'').
(2) 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. The Department
of Justice, through the Immigration and Naturalization Service (INS),
determines whether an employer may use alien crewmembers for longshore
work at U.S. ports. In those cases where an employer must file an
attestation in order to perform such work, the Department of Labor shall
be responsible for accepting the filing of such attestations. Subpart F
of this part sets forth the procedure for filing attestations with the
Department of Labor for employers proposing to use alien crewmembers for
longshore work at U.S. ports under the prevailing practice exception,
the Alaska exception, and where it has been determined that an
attestation is required under the automated vessel exception listed in
paragraph (a)(1)(iv) of this section. Subpart G of this part sets forth
complaint, investigation, and penalty provisions with respect to such
attestations.
(b) Procedure. (1) Under the prevailing practice exception in sec.
258(c) of the Act, and in those cases where it has been determined that
an attestation is required under the automated vessel exception for
longshore work to be performed at locations other than in the State of
Alaska, the procedure involves filing an attestation with the Department
of Labor attesting that:
(i) The use of alien crewmembers for a particular activity of
longshore work is the prevailing practice at the particular port;
(ii) The use of alien crewmembers is not during a strike or lockout
nor designed to influence the election of a collective bargaining
representative; and
(iii) Notice of the attestation has been provided to the bargaining
representative of longshore workers in the local port, or, where there
is none, notice has been provided to longshore workers employed at the
local port.
(2) Under the automated vessel exception in sec. 258(c) of the Act,
no attestation is required in cases where longshore activity consists of
the use of an automated self-unloading conveyor belt or vacuum-actuated
system 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 at the particular port,
that it is during a strike or lockout, or that it is intended or
designed to influence an election of a bargaining representative for
workers in the local port.
(3) Under the Alaska exception in sec. 258(d) of the Act, and in
those cases where it has been determined that an attestation is required
under the automated vessel exception consisting of the use of such
equipment for longshore work to be performed in the State of Alaska, the
procedure involves filing an attestation with the Department of Labor
attesting that:
(i) The employer will make a bona fide request for United States
longshore workers who are qualified and available in sufficient numbers
to perform the activity at the particular time and location from the
parties to whom notice has been provided under paragraph (b)(3)(iv) (B)
and (C) of this section, except that:
(A) Wherever two or more contract stevedoring companies which meet
the
requirements of section 32 of the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 932) have signed a joint collective
bargaining agreement with a single labor organization recognized as an
exclusive bargaining representative of United States longshore workers
within the meaning of the National Labor Relations Act (29 U.S.C. 141 et
seq.), the employer may request longshore workers from only one such
contract stevedoring company, and
(B) A request for longshore workers to an operator of a private dock
may be made only for longshore work to be performed at that dock and
only if the operator meets the requirements of section 32 of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 932);
(ii) The employer will employ all United States longshore workers
made available in response to the request made pursuant to paragraph
(b)(3)(i) of this section who are qualified and available in sufficient
numbers and who are needed to perform the longshore activity at the
particular time and location attested to;
(iii) The use of alien crewmembers for such activity is not intended
or designed to influence and election of a bargaining representative for
workers in the State of Alaska; and
(iv) Notice of the attestation has been provided to:
(A) Labor organizations which have been recognized as exclusive
bargaining representatives of United States longshore workers within the
meaning of the National Labor Relations Act (29 U.S.C. 141 et seq.) and
which make available or intend to make available workers to the
particular location where the longshore work is to be performed;
(B) Contract stevedoring companies which employ or intend to employ
United States longshore workers at that location; and
(C) Operators of private docks at which the employer will use
longshore workers.
(c) Applicability. Subparts F and G of this part apply to all
employers who seek to employ alien crewmembers for longshore work at
U.S. ports under the prevailing practice exception, to all employers who
seek to employ alien crewmembers for longshore work at locations in the
State of Alaska under the Alaska exception, to all employers claiming
the automated vessel exception, and to those cases where it has been
determined that an attestation is required under the automated vessel
exception.
