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 the requirement set forth at Sec. 655.537 of this part
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 (b) of this section. Once an attestation is
accepted for filing, ETA shall then follow the procedures set forth in
paragraph (a)(1) of this section. Upon acceptance of the employer's
attestation by ETA, the attestation and accompanying documentation shall
be forwarded to and be available for public examination at the ETA
national office in a timely manner. 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 a 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.
(a) Acceptance. (1) If the attestation is properly filled out and
includes accompanying documentation for the requirement set forth at
Sec. 655.537, and does not fall within one of the categories set forth
at paragraph (b) of this section, ETA shall accept the attestation for
filing, provide notification to the INS office having jurisdiction over
the location 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. Before using alien crewmembers to perform
the longshore work attested to on Form ETA 9033-A, the employer shall
make a bona fide request for and employ United States longshore workers
who are qualified and available in sufficient numbers pursuant to
Secs. 655.534 and 655.535. Where such a request for dispatch of United
States longshore workers is unsuccessful, either in whole or in part,
any use of alien crewmembers to perform longshore activity shall be in
accordance with INS regulations.
(2) DOL is not the guarantor of the accuracy, truthfulness or
adequacy of an attestation accepted for filing.
(b) 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 any one of
the following conditions exists:
(1) When the Form ETA 9033-A is not properly filled out. Examples of
improperly filled out Form ETA 9033-A's include instances where the
employer has neglected to check all the necessary boxes, where the
employer has failed to include the name of any port, city, or other
geographical reference point where longshore work is to be performed, or
where the employer has failed to sign the attestation or to designate an
agent in the United States.
(2) When the Form ETA 9033-A with accompanying documentation is not
received by ETA at least 30 days prior to the first performance of the
longshore activity, unless the employer is claiming that it could not
have reasonably anticipated the need to file the attestation for that
location at that time, and has included documentation which supports
this contention, and ETA has found the claim to be valid.
(3) When the Form ETA 9033-A does not include accompanying
documentation for the requirement set forth at Sec. 655.537.
(4) When the accompanying documentation submitted by the employer
and required by Sec. 655.537, on its face, is inconsistent with that
section. Examples of such a situation include an instance where the Form
ETA 9033-A indicates that the longshore work will be performed at a
particular private dock and the documentation required under the notice
attestation element indicates that notice was provided to an operator of
a different private dock, or where the longshore work is to be performed
at a particular time and location in the State of Alaska and the notice
of filing provided to qualified labor organizations and contract
stevedoring companies indicates that the longshore work is to be
performed at a different time and/or location.
(5) When the Administrator, Wage and Hour Division, has notified
ETA, in writing, after an investigation pursuant to subpart G of this
part, 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
longshore work at a particular location in the State of Alaska, in
violation of a previously accepted attestation.
(6) 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.
(7) 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.
(c) Resubmission. If the attestation is not accepted for filing
pursuant to paragraph (b) 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 paragraph (b) (1), (2), (3), or (4) of this
section, the employer may resubmit the corrected attestation with the
proper documentation. When an attestation is found to be unacceptable
pursuant to paragraph (b) (5), (6), or (7) of this section and returned,
such action shall be the final decision of the Secretary of Labor.
