8 U.S.C. § 1288 - Limitations on performance of longshore work by alien crewmen
|Cite as:||8 U.S.C. § 1288|
|Currency:||Current through P.L. 116-135 (03/26/2020)|
(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)), except as provided under subsection (c), (d), or (e).
(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.
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-
(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.
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