(a) The second attestation element shall be satisfied when the
employer signs Form ETA 9033-A, attesting that during the validity
period of the attestation, the employer will employ all United States
longshore workers made available in response to the request for dispatch
who, in compliance with applicable industry standards in the State of
Alaska, including safety considerations, are qualified and available in
sufficient numbers and are needed to perform the longshore activity at
the particular time and location attested to.
(1) In no case shall an employer filing an attestation be required
to hire less than a full work unit of United States longshore workers
needed to perform the longshore activity nor be required to provide
overnight accommodations for the longshore workers while employed. For
purposes of this section, ``full work unit'' means the full complement
of longshore workers needed to perform the longshore activity, as
determined by industry standards in the State of Alaska, including
safety considerations. Where the makeup of a
full work unit is covered by one or more collective bargaining
agreements in effect at the time and location where longshore work is to
be performed, the provisions of such agreement(s) shall be deemed to be
in conformance with industry standards in the State of Alaska.
(2) In no case shall an employer be required to provide
transportation to the vessel where the longshore work is to be
performed, except where:
(i) Surface transportation is available; for purposes of this
section, ``surface transportation'' means a tugboat or other vessel
which is appropriately insured, operated by licensed personnel, and
capable of safely transporting U.S. longshore workers from shore to a
vessel on which longshore work is to be performed;
(ii) Such transportation may be safely accomplished; and
(iii)(A) Travel time to the vessel does not exceed one-half hour
each way; and
(B) Travel distance to the vessel from the point of embarkation does
not exceed 5 miles; for purposes of this section, ``point of
embarkation'' means a dock or landing at which U.S. longshore workers
may be safely boarded for transport from shore to a vessel on which
longshore work is to be performed; or
(C) In the cases of Wide Bay, Alaska, and Klawock/Craig, Alaska,
travel time does not exceed 45 minutes each way and travel distance to
the vessel from the point of embarkation does not exceed 7.5 miles,
unless the party responding to the request for dispatch agrees to lesser
time and distance specifications.
(3) If a United States longshore worker is capable of getting to and
from the vessel where longshore work is to be performed when the vessel
is beyond the time and distance limitations specified in paragraph
(a)(2)(iii) of this section, and where all of the other criteria
governing the employment of United States longshore workers under this
subpart are met (e.g., ``qualified and available in sufficient
numbers''), the employer is still obligated to employ the worker to
perform the longshore activity. In such instance, however, the employer
shall not be required to provide such transportation nor to reimburse
the longshore worker for the cost incurred in transport to and from the
vessel.
(4) Where an employer is required to provide transportation to the
vessel because it is within the time and distance limitations specified
in (a)(2)(iii) of this section, the employer also shall be required to
provide return transportation to the point of embarkation.
(b) Documentation. To substantiate the requirement in paragraph (a)
of this section, an employer shall develop and maintain documentation to
meet the employer's burden of proof. Such documentation shall include
records of payments to contract stevedoring companies or private dock
operators, payroll records for United States longshore workers employed,
or other documentation to show clearly that the employer has met its
obligation to employ all United States longshore workers made available
in response to a request for dispatch who are qualified and available in
sufficient numbers. The documentation shall specify the number of full
work units employed pursuant to this section, the composition of such
full work units (i.e., number of workers by job title), and the date(s)
and location(s) where the longshore work was performed. The employer
also shall develop and maintain documentation concerning the provision
of transportation from the point of embarkation to the vessel on which
longshore work is to be performed. Each time one or more United States
longshore workers are dispatched in response to the request under
Sec. 655.534, the employer shall retain a written record of whether
transportation to the vessel was provided and the time and distance from
the point of embarkation to the vessel.
