(a) Who may submit attestations? An employer (or the employer's
designated U.S. agent or representative) seeking to employ alien
crewmembers for a particular activity of longshore work under the
prevailing practice exception shall submit an attestation, provided
there is not in effect in the local port any collective bargaining
agreement covering at least 30 percent of the longshore workers. An
attestation is required for each port at which the employer intends to
use alien crewmembers for longshore work. The attestation shall include:
A completed Form ETA 9033, which shall be signed by the employer (or the
employer's designated agent or representative); and facts and evidence
prescribed in paragraphs (d) through (f) of this section. This
Sec. 655.510 shall not apply in the case of longshore work performed at
a particular location in the State of Alaska. The procedures governing
the filing of attestations under the Alaska exception are set forth at
Secs. 655.530 through 655.541.
(b) Where and when should attestations be submitted? (1)
Attestations must be submitted, by U.S. mail, private carrier, or
facsimile transmission to the U.S. Department of Labor ETA Regional
Office(s) which are designated by the Chief, Division of Foreign Labor
Certifications, USES. Attestations must be received and date-stamped by
DOL at least 14 calendar days prior to the date of the first performance
of the intended longshore activity, and shall be accepted for filing or
returned by ETA in accordance with paragraph (g) of this section within
14 calendar days
of the date received by ETA. An attestation which is accepted by ETA
solely because it was not reviewed within 14 days is subject to
subsequent invalidation pursuant to paragraph (i) of this section. Every
employer filing an attestation shall have an agent or representative
with a United States address. Such address shall be clearly indicated on
the Form ETA 9033. In order to ensure that an attestation has been
accepted for filing prior to the date of the performance of the
longshore activity, employers are advised to take mailing time into
account to make sure that ETA receives the attestation at least 14 days
prior to the first performance of the longshore activity.
(2) Unanticipated Emergencies. ETA may accept for filing
attestations received after the 14-day deadline when due to an
unanticipated emergency, as defined in Sec. 655.502 of this part. When
an employer is claiming an unanticipated emergency, it shall submit
documentation to support such a claim. ETA shall then make a
determination on the validity of the claim, and shall accept the
attestation for filing or return it in accordance with paragraph (g) of
this section. ETA shall in no case accept an attestation received later
than the date of the first performance of the activity.
(c) What should be submitted? (1) Form ETA 9033 with accompanying
documentation. For each port, a completed and dated original Form ETA
9033, or facsimile transmission thereof, containing the required
attestation elements and the original signature of the employer (or the
employer's designated agent or representative) shall be submitted, along
with two copies of the completed, signed, and dated Form ETA 9033. (If
the attestation is submitted by facsimile transmission, the attestation
containing the original signature shall be maintained at the U.S.
business address of the employer's designated agent or representative).
Copies of Form ETA 9033 are available at all Department of Labor ETA
Regional Offices and at the National Office. In addition, the employer
shall submit two sets of all facts and evidence to show compliance with
each of the attestation elements as prescribed by the regulatory
standards in paragraphs (d) through (f) of this section. In the case of
an investigation pursuant to subpart G of this part, the employer shall
have the burden of proof to establish the validity of each attestation.
The employer shall maintain in its records at the office of its U.S.
agent, for a period of at least 3 years from the date of filing,
sufficient documentation to meet its burden of proof, which shall at a
minimum include the documentation described in this Sec. 655.510, and
shall make the documents available to Department of Labor officials upon
request.
Whenever any document is submitted to a Federal agency or retained
in the employer's records pursuant to this part, the document either
shall be in the English language or shall be accompanied by a written
translation into the English language certified by the translator as to
the accuracy of the translation and his/her competency to translate.
(2) Statutory precondition regarding collective bargaining
agreements. (i) The employer may file an attestation only when there is
no collective bargaining agreement in effect in the port covering 30
percent or more of the longshore workers in the port. The employer shall
attest on the Form ETA 9033 that no such collective bargaining agreement
exists at the port at the time that the attestation is filed.
(ii) The employer is not required to submit with the Form ETA 9033
documentation substantiating that there is no collective bargaining
agreement in effect in the port covering 30 percent or more of the
longshore workers. If a complaint is filed which presents reasonable
cause to believe that such an agreement exists, the Department shall
conduct an investigation. In such an investigation, the employer shall
have the burden of proving that no such collective bargaining agreement
exists.
(3) Ports for which attestations may be filed. Employers may file an
attestation for a port which is listed in appendix A (U.S. Seaports) to
this subpart. Employers may also file an attestation for a particular
location not in appendix A to this subpart if additional facts and
evidence are submitted with the attestation to demonstrate that the
location is a port, meeting all of the criteria as defined by
Sec. 655.502 of this part.
(4) Attestation elements. The attestation elements referenced in
paragraph (c)(1) of this section are mandated by sec. 258(c)(1)(B) of
the Act (8 U.S.C. 1288(c)(1)(B)). Section 258(c)(1)(B) of the Act
requires employers who seek to have alien crewmembers engage in a
longshore activity to attest as follows:
(i) The performance of the activity by alien crewmembers is
permitted under the prevailing practice of the particular port as of the
date of filing of the attestation;
(ii) The use of the alien crewmembers for such activity is not
during a strike or lockout in the course of a labor dispute, and is not
intended or designed to influence an election of a bargaining
representative for workers in the local port; and
(iii) Notice of the attestation has been provided by the owner,
agent, consignee, master, or commanding officer to the bargaining
representative of longshore workers in the local port, or, where there
is no such bargaining representative, notice has been provided to
longshore workers employed at the local port.
(d) The first attestation element: prevailing practice. For an
employer to be in compliance with the first attestation element, it is
required to have been the prevailing practice during the 12-month period
preceding the filing of the attestation, for a particular activity of
longshore work at the particular port to be performed by alien
crewmembers. For each port, a prevailing practice can exist for any of
four different types of longshore work: loading of cargo, unloading of
cargo, operation of cargo-related equipment, or handling of mooring
lines. It is thus possible that at a particular port it is the
prevailing practice for alien crewmembers to unload vessels but not the
prevailing practice to load them. An employer shall indicate on the
attestation form which of the four longshore activities it is claiming
is the prevailing practice for such work to be performed by alien
crewmembers.
(1) Establishing a prevailing practice.
(i) In establishing that a particular activity of longshore work 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 vessels docking at the port used alien
crewmembers for the activity; or
(B) Alien crewmembers made up over fifty percent of the workers in
the port who engaged in the activity.
(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 (d)(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 (d)(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).
(iii) For purposes of this paragraph (d)(1):
(A) ``Workers in the port engaged in the activity'' means any person
who performed the activity in any calendar day;
(B) Vessels shall be counted each time they dock at the particular
port):
(C) Vessels exempt from section 258 of the INA for safety and
environmental protection shall not be included in counting the number of
vessels which dock at the port (see Department of Transportation
Regulations); and
(D) Automated vessels shall not be included in counting the number
of vessels which dock at the port. For establishing a prevailing
practice under the automated vessel exception see Sec. 655.520 of this
part.
(2) Documentation. In assembling the facts and evidence required by
paragraph (d)(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. Such 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 in the local port 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 by paragraph (c)(1) of this section.
(e) The second attestation element: no strike or lockout; no
intention or design to influence bargaining representative election. (1)
The employer shall attest that, at the time of submitting the
attestation, there is not a strike or lockout in the course of a labor
dispute covering the employer's activity, and that it will not use alien
crewmembers during a strike or lockout after filing the attestation. The
employer shall also attest that the employment of such
aliens is not intended or designed to influence an election for a
bargaining representative for workers in the local port. Labor disputes
for purposes of this attestation element relate only to those involving
longshore workers at the port of intended employment. This attestation
element applies to strikes and lockouts and elections of bargaining
representatives at the local port where the use of alien crewmembers for
longshore work is intended.
(2) Documentation. As documentation to substantiate the requirement
in paragraph (e)(1) of this section, an employer may submit a statement
of the good faith efforts made to determine whether there is a strike or
lockout at the particular port, as, for example, by contacting the port
authority or the collective bargaining representative for longshore
workers at the particular port.
(f) The third attestation element: notice of filing. The employer of
alien crewmembers shall attest that at the time of filing the
attestation, notice of filing has been provided to the bargaining
representative of the longshore workers in the local port, or, where
there is no such bargaining representative, notice of the filing has
been provided to longshore workers employed at the local port through
posting in conspicuous locations and through other appropriate means.
(1) Notification of bargaining representative. No later than the
date the attestation is received by DOL to be considered for filing, the
employer of alien crewmembers shall notify the bargaining representative
(if any) of longshore workers at the local port that the attestation is
being submitted to DOL. The notice shall include a copy of the Form ETA
9033, shall state the activity(ies) for which the attestation is
submitted, and shall state in that notice that the attestation and
accompanying documentation are available at the national office of ETA
for review by interested parties. The employer may have its owner,
agent, consignee, master, or commanding officer provide such notice.
Notices under this paragraph (f)(1) shall include the following
statement: ``Complaints alleging misrepresentation of material facts in
the attestation and/or failure to comply with the terms of the
attestation may be filed with any office of the Wage and Hour Division
of the United States Department of Labor.''
(2) Posting notice where there is no bargaining representative. If
there is no bargaining representative of longshore workers at the local
port when the employer submits an attestation to ETA, the employer shall
provide written notice to the port authority for distribution to the
public on request. In addition, the employer shall post one or more
written notices at the local port, stating that the attestation with
accompanying documentation has been submitted, the activity(ies) for
which the attestation has been submitted, and that the attestation and
accompanying documentation are available at the national office of ETA
for review by interested parties. Such posted notice shall be clearly
visible and unobstructed, and shall be posted in conspicuous places
where the longshore workers readily can read the posted notice on the
way to or from their duties. Appropriate locations for posting such
notices include locations in the immediate proximity of mandatory Fair
Labor Standards Act wage and hour notices and Occupational Safety and
Health Act occupational safety and health notices. The notice shall
include a copy of the Form ETA 9033 filed with DOL, shall provide
information concerning the availability of supporting documents for
examination at the national office of ETA, and shall include the
following statement: ``Complaints alleging misrepresentation of material
facts in the attestation and/or failure to comply with the terms of the
attestation may be filed with any office of the Wage and Hour Division
of the United States Department of Labor.''
(3) Documentation. The employer shall provide a statement setting
forth the name and address of the person to whom the notice was provided
and where and when the notice was posted and shall attach a copy of the
notice.
(g) Actions on attestations submitted for filing. Once an
attestation has been received from an employer, a determination shall be
made by the regional Certifying Officer whether to accept the
attestation for filing or return it. The regional Certifying Officer may
request
additional explanation and/or documentation from the employer in making
this determination. An attestation which is properly filled out and
which includes accompanying documentation for each of the requirements
set forth at Sec. 655.510(d) through (f) shall be accepted for filing by
ETA on the date it is signed by the regional Certifying Officer unless
it falls within one of the categories set forth in paragraph (g)(2) of
this section. Once an attestation is accepted for filing, ETA shall then
follow the procedures set forth in paragraph (g)(1) of this section.
Upon acceptance of the employer's attestation by ETA, the attestation
and accompanying documentation will be forwarded and shall be available
in a timely manner for public examination at the ETA national office.
ETA shall not consider information contesting an attestation received by
ETA prior to the determination to accept or return the attestation for
filing. Such information shall not be made part of ETA's administrative
record on the attestation, but shall be referred to ESA to be processed
as a complaint pursuant to subpart G of this part if the attestation is
accepted by ETA for filing.
(1) Acceptance. (i) If the attestation is properly filled out and
includes accompanying documentation for each of the requirements at
Sec. 655.510(d) through (f), and does not fall within one of the
categories set forth at paragraph (g)(2) of this section, ETA shall
accept the attestation for filing, provide notification to the INS
office having jurisdiction over the port where longshore work will be
performed, and return to the employer, or the employer's agent or
representative at a U.S. address, one copy of the attestation form
submitted by the employer, with ETA's acceptance indicated thereon. The
employer may then use alien crewmembers for the particular activity of
longshore work at the U.S. port cited in the attestation in accordance
with INS regulations.
(ii) DOL is not the guarantor of the accuracy, truthfulness or
adequacy of an attestation accepted for filing.
(2) Unacceptable attestations. ETA shall not accept an attestation
for filing and shall return such attestation to the employer, or the
employer's agent or representative at a U.S. address, when one of the
following conditions exists:
(i) When the Form ETA 9033 is not properly filled out. Examples of
improperly filled out Form ETA 9033's include instances where the
employer has neglected to check all the necessary boxes, or where the
employer has failed to include the name of the port where it intends to
use the alien crewmembers for longshore work, or where the employer has
named a port that is not listed in appendix A and has failed to submit
facts and evidence to support a showing that the location is a port as
defined by Sec. 655.502, or when the employer has failed to sign the
attestation or to designate an agent in the United States;
(ii) When the Form ETA 9033 with accompanying documentation is not
received by ETA at least 14 days prior to the date of performance of the
first activity indicated on the Form ETA 9033; unless the employer is
claiming an unanticipated emergency, has included documentation which
supports such claim, and ETA has found the claim to be valid;
(iii) When the Form ETA 9033 does not include accompanying
documentation for each of the requirements set forth at Sec. 655.510 (d)
through (f);
(iv) When the accompanying documentation required by paragraph (c)
of this section submitted by the employer, on its face, is inconsistent
with the requirements set forth at Sec. 655.510 (d) through (f).
Examples of such a situation include instances where the Form ETA 9033
pertains to one port and the accompanying documentation to another;
where the Form ETA 9033 pertains to one activity of longshore work and
the accompanying documentation obviously refers to another; or where the
documentation clearly indicates that only thirty percent, instead of the
required fifty percent, of the activity attested to is performed by
alien crewmembers;
(v) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, after an investigation pursuant to subpart G of this
part, that the particular activity of longshore work which the employer
has attested is the prevailing practice at a particular port,
is not, in fact, the prevailing practice at the particular port;
(vi) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, that a cease and desist order has been issued pursuant
to subpart G of this part, with respect to the attesting employer's
performance of the particular activity and port, in violation of a
previously accepted attestation;
(vii) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, after an investigation pursuant to subpart G of this
part, that the particular employer has misrepresented or failed to
comply with an attestation previously submitted and accepted for filing,
but in no case for a period of more than one year after the date of the
Administrator's notice and provided that INS has not advised ETA that
the prohibition is in effect for a lesser period; or
(viii) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, that the employer has failed to comply with any
penalty, sanction, or other remedy assessed in a final agency action
following an investigation by the Wage and Hour Division pursuant to
subpart G of this part.
(3) Resubmission. If the attestation is not accepted for filing
pursuant to the categories set forth in paragraph (g)(2) of this
section, ETA shall return to the employer, or the employer's agent or
representative, at a U.S. address, the attestation form and accompanying
documentation submitted by the employer. ETA shall notify the employer,
in writing, of the reason(s) that the attestation is unacceptable. When
an attestation is found to be unacceptable pursuant to paragraphs (g)(2)
(i) through (iv) of this section, the employer may resubmit the
attestation with the proper documentation. When an attestation is found
to be unacceptable pursuant to paragraphs (g)(2) (v) through (viii) of
this section and returned, such action shall be the final decision of
the Secretary of Labor.
(h) Effective date and validity of filed attestations. An
attestation is filed and effective as of the date it is accepted and
signed by the regional Certifying Officer. Such attestation is valid for
the 12-month period beginning on the date of acceptance for filing,
unless suspended or invalidated pursuant to subpart G of this part or
paragraph (i) of this section. The filed attestation expires at the end
of the 12-month period of validity.
(i) Suspension or invalidation of filed attestations. Suspension or
invalidation of an attestation may result from enforcement action(s)
under subpart G of this part (i.e., investigation(s) conducted by the
Administrator or cease and desist order(s) issued by the Administrator
regarding the employer's misrepresentation in or failure to carry out
its attestation); or from a discovery by ETA that it made an error in
accepting the attestation because such attestation falls within one of
the categories set forth in paragraph (g)(2) of this section.
(1) Result of Wage and Hour Division action. Upon the determination
of a violation under subpart G of this part, the Administrator shall,
pursuant to Sec. 655.660(b), notify the Attorney General of the
violation and of the Administrator's notice to ETA.
(2) Result of ETA action. If, after accepting an attestation for
filing, ETA finds that the attestation is unacceptable because it falls
within one of the categories set forth at paragraph (g)(2) of this
section, and as a result, ETA suspends or invalidates the attestation,
ETA shall notify the Attorney General of such suspension or invalidation
and shall return a copy of the attestation form to the employer, or the
employer's agent or representative, at a U.S. address. ETA shall notify
the employer, in writing, of the reason(s) that the attestation is
suspended or invalidated. When an attestation is found to be suspended
or invalidated pursuant to paragraphs (g)(2) (i) through (iv) of this
section, the employer may resubmit the attestation with the proper
documentation. When an attestation is suspended or invalidated because
it falls within one of the categories in paragraphs (g)(2) (v) through
(viii) of this section, such action shall be the final decision of the
Secretary of Labor, except as set forth in subpart G of this part.
(j) Withdrawal of accepted attestations. (1) An employer who has
submitted an attestation which has been accepted
for filing may withdraw such attestation at any time before the 12-month
period of its validity terminates, unless the Administrator has found
reasonable cause under subpart G to commence an investigation of the
particular attestation. Such withdrawal may be advisable, for example,
when the employer learns that the particular activity(ies) of longshore
work which it has attested is the prevailing practice to perform with
alien crewmembers may not, in fact, have been the prevailing practice at
the particular port at the time of filing. Requests for such withdrawals
shall be in writing and shall be directed to the regional Certifying
Officer.
(2) Withdrawal of an attestation shall not affect an employer's
liability with respect to any failure to meet the conditions attested to
which took place before the withdrawal, or for misrepresentations in an
attestation. However, if an employer has not yet performed the
particular longshore activity(ies) at the port in question, the
Administrator will not find reasonable cause to investigate unless it is
alleged, and there is reasonable cause to believe, that the employer has
made misrepresentations in the attestation or documentation thereof, or
that the employer has not in fact given the notice attested to.
(Approved by the Office of Management and Budget under Control No. 1205-
0309)
