8 U.S.C. § 1288 : US Code - Section 1288: Limitations on performance of longshore work by alien crewmen

Search 8 U.S.C. § 1288 : US Code - Section 1288: Limitations on performance of longshore work by alien crewmen

(a) In general
For purposes of section 1101(a)(15)(D)(i) of this title, the term
"normal operation and service on board a vessel" does not include
any activity that is longshore work (as defined in subsection (b)
of this section), except as provided under subsection (c), (d), or
(e) of this section.
(b) "Longshore work" defined
(1) In general
In this section, except as provided in paragraph (2), the term
"longshore work" means any activity relating to the loading or
unloading of cargo, the operation of cargo-related equipment
(whether or not integral to the vessel), and the handling of
mooring lines on the dock when the vessel is made fast or let go,
in the United States or the coastal waters thereof.
(2) Exception for safety and environmental protection
The term "longshore work" does not include the loading or
unloading of any cargo for which the Secretary of Transportation
has, under the authority contained in chapter 37 of title 46
(relating to Carriage of Liquid Bulk Dangerous Cargoes), section
1321 of title 33, section 4106 of the Oil Pollution Act of 1990,
or section 5103(b), 5104, 5106, 5107, or 5110 of title 49
prescribed regulations which govern - 
(A) the handling or stowage of such cargo,
(B) the manning of vessels and the duties, qualifications,
and training of the officers and crew of vessels carrying such
cargo, and
(C) the reduction or elimination of discharge during
ballasting, tank cleaning, handling of such cargo.
(3) Construction
Nothing in this section shall be construed as broadening,
limiting, or otherwise modifying the meaning or scope of
longshore work for purposes of any other law, collective
bargaining agreement, or international agreement.
(c) Prevailing practice exception
(1) Subsection (a) of this section shall not apply to a
particular activity of longshore work in and about a local port if -

(A)(i) there is in effect in the local port one or more
collective bargaining agreements each covering at least 30
percent of the number of individuals employed in performing
longshore work and (ii) each such agreement (covering such
percentage of longshore workers) permits the activity to be
performed by alien crewmen under the terms of such agreement; or
(B) there is no collective bargaining agreement in effect in
the local port covering at least 30 percent of the number of
individuals employed in performing longshore work, and an
employer of alien crewmen (or the employer's designated agent or
representative) has filed with the Secretary of Labor at least 14
days before the date of performance of the activity (or later, if
necessary due to an unanticipated emergency, but not later than
the date of performance of the activity) an attestation setting
forth facts and evidence to show that - 
(i) the performance of the activity by alien crewmen is
permitted under the prevailing practice of the particular port
as of the date of filing of the attestation and that the use of
alien crewmen for such activity - 
(I) is not during a strike or lockout in the course of a
labor dispute, and
(II) is not intended or designed to influence an election
of a bargaining representative for workers in the local port;
and
(ii) 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 of the attestation has been provided to longshore
workers employed at the local port.
In applying subparagraph (B) in the case of a particular activity
of longshore work consisting of the use of an automated self-
unloading conveyor belt or vacuum-actuated system on a vessel, the
attestation shall be required to be filed only if the Secretary of
Labor finds, based on a preponderance of the evidence which may be
submitted by any interested party, that the performance of such
particular activity is not described in clause (i) of such
subparagraph.
(2) Subject to paragraph (4), an attestation under paragraph (1)
shall - 
(A) expire at the end of the 1-year period beginning on the
date of its filing with the Secretary of Labor, and
(B) apply to aliens arriving in the United States during such 1-
year period if the owner, agent, consignee, master, or
commanding officer states in each list under section 1281 of this
title that it continues to comply with the conditions in the
attestation.
(3) An owner, agent, consignee, master, or commanding officer may
meet the requirements under this subsection with respect to more
than one alien crewman in a single list.
(4)(A) The Secretary of Labor shall compile and make available
for public examination in a timely manner in Washington, D.C., a
list identifying owners, agents, consignees, masters, or commanding
officers which have filed lists for nonimmigrants described in
section 1101(a)(15)(D)(i) of this title with respect to whom an
attestation under paragraph (1) or subsection (d)(1) of this
section is made and, for each such entity, a copy of the entity's
attestation under paragraph (1) or subsection (d)(1) of this
section (and accompanying documentation) and each such list filed
by the entity.
(B)(i) The Secretary of Labor shall establish a process for the
receipt, investigation, and disposition of complaints respecting an
entity's failure to meet conditions attested to, an entity's
misrepresentation of a material fact in an attestation, or, in the
case described in the last sentence of paragraph (1), whether the
performance of the particular activity is or is not described in
paragraph (1)(B)(i).
(ii) Complaints may be filed by any aggrieved person or
organization (including bargaining representatives, associations
deemed appropriate by the Secretary, and other aggrieved parties as
determined under regulations of the Secretary).
(iii) The Secretary shall promptly conduct an investigation under
this subparagraph if there is reasonable cause to believe that an
entity fails to meet conditions attested to, an entity has
misrepresented a material fact in the attestation, or, in the case
described in the last sentence of paragraph (1), the performance of
the particular activity is not described in paragraph (1)(B)(i).
(C)(i) If the Secretary determines that reasonable cause exists
to conduct an investigation with respect to an attestation, a
complaining party may request that the activities attested to by
the employer cease during the hearing process described in
subparagraph (D). If such a request is made, the attesting employer
shall be issued notice of such request and shall respond within 14
days to the notice. If the Secretary makes an initial determination
that the complaining party's position is supported by a
preponderance of the evidence submitted, the Secretary shall
require immediately that the employer cease and desist from such
activities until completion of the process described in
subparagraph (D).
(ii) If the Secretary determines that reasonable cause exists to
conduct an investigation with respect to a matter under the last
sentence of paragraph (1), a complaining party may request that the
activities of the employer cease during the hearing process
described in subparagraph (D) unless the employer files with the
Secretary of Labor an attestation under paragraph (1). If such a
request is made, the employer shall be issued notice of such
request and shall respond within 14 days to the notice. If the
Secretary makes an initial determination that the complaining
party's position is supported by a preponderance of the evidence
submitted, the Secretary shall require immediately that the
employer cease and desist from such activities until completion of
the process described in subparagraph (D) unless the employer files
with the Secretary of Labor an attestation under paragraph (1).
(D) Under the process established under subparagraph (B), the
Secretary shall provide, within 180 days after the date a complaint
is filed (or later for good cause shown), for a determination as to
whether or not a basis exists to make a finding described in
subparagraph (E). The Secretary shall provide notice of such
determination to the interested parties and an opportunity for a
hearing on the complaint within 60 days of the date of the
determination.
(E)(i) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that an entity has failed to meet a
condition attested to or has made a misrepresentation of material
fact in the attestation, the Secretary shall notify the Attorney
General of such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties in an
amount not to exceed $5,000 for each alien crewman performing
unauthorized longshore work) as the Secretary determines to be
appropriate. Upon receipt of such notice, the Attorney General
shall not permit the vessels owned or chartered by such entity to
enter any port of the United States during a period of up to 1
year.
(ii) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that, in the case described in the last
sentence of paragraph (1), the performance of the particular
activity is not described in subparagraph (B)(i), the Secretary
shall notify the Attorney General of such finding and, thereafter,
the attestation described in paragraph (1) shall be required of the
employer for the performance of the particular activity.
(F) A finding by the Secretary of Labor under this paragraph that
the performance of an activity by alien crewmen is not permitted
under the prevailing practice of a local port shall preclude for
one year the filing of a subsequent attestation concerning such
activity in the port under paragraph (1).
(5) Except as provided in paragraph (5) of subsection (d) of this
section, this subsection shall not apply to longshore work
performed in the State of Alaska.
(d) State of Alaska exception
(1) Subsection (a) of this section shall not apply to a
particular activity of longshore work at a particular location in
the State of Alaska if an employer of alien crewmen has filed an
attestation with the Secretary of Labor at least 30 days before the
date of the first performance of the activity (or anytime up to 24
hours before the first performance of the activity, upon a showing
that the employer could not have reasonably anticipated the need to
file an attestation for that location at that time) setting forth
facts and evidence to show that - 
(A) 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 clauses (ii) and (iii) of subparagraph (D), except that - 
(i) wherever two or more contract stevedoring companies have
signed a joint collective bargaining agreement with a single
labor organization described in subparagraph (D)(i), the
employer may request longshore workers from only one of such
contract stevedoring companies, and
(ii) 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 932 of title 33;
(B) the employer will employ all those United States longshore
workers made available in response to the request made pursuant
to subparagraph (A) who are qualified and available in sufficient
numbers and who are needed to perform the longshore activity at
the particular time and location;
(C) the use of alien crewmembers for such activity is not
intended or designed to influence an election of a bargaining
representative for workers in the State of Alaska; and
(D) notice of the attestation has been provided by the employer
to - 
(i) 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. 151 et seq.] and which make available or intend to
make available workers to the particular location where the
longshore work is to be performed,
(ii) contract stevedoring companies which employ or intend to
employ United States longshore workers at that location, and
(iii) operators of private docks at which the employer will
use longshore workers.
(2)(A) An employer filing an attestation under paragraph (1) who
seeks to use alien crewmen to perform longshore work shall be
responsible while at (!1) the attestation is valid to make bona
fide requests for United States longshore workers under paragraph
(1)(A) and to employ United States longshore workers, as provided
in paragraph (1)(B), before using alien crewmen to perform the
activity or activities specified in the attestation, except that an
employer shall not be required to request longshore workers from a
party if that party has notified the employer in writing that it
does not intend to make available United States longshore workers
to the location at which the longshore work is to be performed.
(B) If a party that has provided such notice subsequently
notifies the employer in writing that it is prepared to make
available United States longshore workers who are qualified and
available in sufficient numbers to perform the longshore activity
to the location at which the longshore work is to be performed,
then the employer's obligations to that party under subparagraphs
(A) and (B) of paragraph (1) shall begin 60 days following the
issuance of such notice.
(3)(A) In no case shall an employer filing an attestation be
required - 
(i) to hire less than a full work unit of United States
longshore workers needed to perform the longshore activity;
(ii) to provide overnight accommodations for the longshore
workers while employed; or
(iii) to provide transportation to the place of work, except
where - 
(I) surface transportation is available;
(II) such transportation may be safely accomplished;
(III) travel time to the vessel does not exceed one-half hour
each way; and
(IV) travel distance to the vessel from the point of
embarkation does not exceed 5 miles.
(B) In the cases of Wide Bay, Alaska, and Klawock/Craig, Alaska,
the travel times and travel distances specified in subclauses (III)
and (IV) of subparagraph (A)(iii) shall be extended to 45 minutes
and 7 1/2  miles, respectively, unless the party responding to the
request for longshore workers agrees to the lesser time and
distance limitations specified in those subclauses.
(4) Subject to subparagraphs (A) through (D) of subsection (c)(4)
of this section, attestations filed under paragraph (1) of this
subsection shall - 
(A) expire at the end of the 1-year period beginning on the
date the employer anticipates the longshore work to begin, as
specified in the attestation filed with the Secretary of Labor,
and
(B) apply to aliens arriving in the United States during such 1-
year period if the owner, agent, consignee, master, or
commanding officer states in each list under section 1281 of this
title that it continues to comply with the conditions in the
attestation.
(5)(A) Except as otherwise provided by subparagraph (B),
subsection (c)(3) of this section and subparagraphs (A) through (E)
of subsection (c)(4) of this section shall apply to attestations
filed under this subsection.
(B) The use of alien crewmen to perform longshore work in Alaska
consisting of the use of an automated self-unloading conveyor belt
or vacuum-actuated system on a vessel shall be governed by the
provisions of subsection (c) of this section.
(6) For purposes of this subsection - 
(A) the term "contract stevedoring companies" means those
stevedoring companies licensed to do business in the State of
Alaska that meet the requirements of section 932 of title 33;
(B) the term "employer" includes any agent or representative
designated by the employer; and
(C) the terms "qualified" and "available in sufficient numbers"
shall be defined by reference to industry standards in the State
of Alaska, including safety considerations.
(e) Reciprocity exception
(1) In general
Subject to the determination of the Secretary of State pursuant
to paragraph (2), the Attorney General shall permit an alien
crewman to perform an activity constituting longshore work if - 
(A) the vessel is registered in a country that by law,
regulation, or in practice does not prohibit such activity by
crewmembers aboard United States vessels; and
(B) nationals of a country (or countries) which by law,
regulation, or in practice does not prohibit such activity by
crewmembers aboard United States vessels hold a majority of the
ownership interest in the vessel.
(2) Establishment of list
The Secretary of State shall, in accordance with section 553 of
title 5, compile and annually maintain a list, of longshore work
by particular activity, of countries where performance of such a
particular activity by crewmembers aboard United States vessels
is prohibited by law, regulation, or in practice in the country.
By not later than 90 days after November 29, 1990, the Secretary
shall publish a notice of proposed rulemaking to establish such
list. The Secretary shall first establish such list by not later
than 180 days after November 29, 1990.
(3) "In practice" defined
For purposes of this subsection, the term "in practice" refers
to an activity normally performed in such country during the one-
year period preceding the arrival of such vessel into the United
States or coastal waters thereof.