LIMITATIONS ON PERFORMANCE OF LONGSHORE WORK BY ALIEN CREWMEN (D NONIMMIGRANTS).

SEC. 203. LIMITATIONS ON PERFORMANCE OF LONGSHORE WORK BY ALIEN CREWMEN (D NONIMMIGRANTS). (a) Limitation on Aliens.— (1) In general.— Chapter 6 of title II is amended by adding at the end the following new section: “limitations on performance of longshore work by alien crewmen “Sec. 258. (a) In General.— For purposes of section 101(a)(15)(D)(i), the term ‘normal operation and service on board a vessel’ does not include any activity that is longshore work (as defined in subsection (b)), except as provided under subsection (c) or subsection (d). “(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, United States Code (relating to Carriage of Liquid Bulk Dangerous Cargoes), section 311 of the Federal Water Pollution Control Act (33 U.S.C. 1321), section 4106 of the Oil Pollution Act of 1990, or section 105 or 106 of the Hazardous Materials Transportation Act (49 U.S.C. App. 1804, 1805) 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) 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,104 STAT. 5016 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 such list under section 251 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 101(a)(15)(D)(i) with respect to whom an attestation under paragraph (1) is made and, for each such entity, a copy of the entity’s attestation under paragraph (1) (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). 104 STAT. 5017 “(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. 104 STAT. 5018 “(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). “(d) 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, United States Code, 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 the date of the enactment of this section, 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 the date of the enactment of this section. “(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.”. (2) No application to citizens or nationals of the united states.— This section does not affect the performance of longshore work in the United States by citizens or nationals of the United States. (3) Clerical amendment.—The table of contents is amended by inserting after the item relating to section 257 the following new item: “Sec. 258. Limitations on performance of longshore work by alien crewmen.”. (b) Penalties.— Section 251(d) (8 U.S.C. 1281(d)) is amended— (1) in the first sentence by striking “pay to” and all that follows through “$10” and inserting “pay to the Commissioner the sum of $200”; and (2) by inserting after the first sentence the following: “In the case that any owner, agent, consignee, master, or commanding officer of a vessel shall secure services of an alien crewman described in section 101(a)(15)(D)(i) to perform longshore work not included in the normal operation and service on board the vessel under section 258, the owner, agent, charterer, master, or commanding officer shall pay to the Commissioner the sum of $5,000, and such fine shall be a lien against the vessel.”. (c) Conforming Amendments.— Section 101(a)(15)(D)(i) (8 U.S.C. 1101(a)(15)(D)(i)) is amended— (1) by striking “any capacity” and inserting “a capacity”, and 104 STAT. 5019 (2) by inserting “, as defined in section 258(a)” after “on board a vessel”. (d) Effective Date.— The amendments made by this section shall apply to services performed on or after 180 days after the date of the enactment of this Act.