Title 8
SECTION 258.2
258.2 Exceptions.
§ 258.2 Exceptions.Any master or agent who uses nonimmigrant crewmen to perform longshore work at any United States port under the exceptions provided for in paragraphs (a)(2), (b), or (c) of this section must so indicate on the crew manifest and shall note under which exception the work will be performed.
(a) Hazardous cargo. (1) The term longshore work does not include the loading and unloading of any cargo for which the Secretary of Transportation has prescribed regulations under authority contained in chapter 37 of title 46, United States Code, section 311 of the Federal Water Pollution Control Act, section 4106 of the Oil Pollution Act of 1990, or section 105 or 106 of the Hazardous Materials Transportation Act.
(2) In order to invoke the hazardous cargo exception for safety and environmental protection, the master or agent shall note on the manifest that the vessel is a qualifying tanker or carries hazardous dry bulk cargo.
(i) All tankers qualify for the hazardous cargo exception, including parcel tankers, except for a tanker that has been gas-freed to transport non-hazardous dry bulk commodities.
(ii) In order for a vessel to qualify for the hazardous cargo exception as a dry bulk hazardous cargo carrier, the master or agent must show the immigration officer the dangerous cargo manifest that is required by Coast Guard regulation 46 CFR 148.02-3(a) to be kept near the bridge house.
(b) Prevailing practice exception. (1) Nonimmigrant crewmen may perform longshore work under this exception if:
(i) There is in effect in the local port one or more collective bargaining agreements, each covering at least 30 percent of the persons performing longshore work at the port, and each of which permits the longshore activity to be performed by the nonimmigrant crewman, or
(ii) There is no collective bargaining agreement in effect in the local port covering at least 30 percent of the persons performing longshore work at the port, and the employer of the crewmen has filed an attestation with the Secretary of Labor that the Secretary of Labor has accepted.
(2) Documentation to be presented under the prevailing practice exception. (i) If the master or agent states on the manifest, Form I-418, that nonimmigrant crewmen will perform longshore work at a port under the prevailing practice exception as permitted by all collective bargaining agreements covering 30 percent or more of the persons performing longshore work at the port, then the master or agent must present to the examining immigration officer an affidavit from the local stevedore. The stevedore or a union representative of the employees' association must state on the affidavit that all bargaining agreements covering 30 percent or more of the longshore workers at the port allow nonimmigrant crewmen either to perform all longshore work or to perform those specified longshore activities that crewmen on the vessel intend to perform.
(ii) Where there is no collective bargaining agreement in effect at a port covering at least 30 percent of the persons who do longshore work, and the master or agent states on the manifest that nonimmigrant crewmen will perform such work under the prevailing practice exception, then the master or agent shall present a copy of the notification received from the Secretary of Labor that the attestation required for this exception has been accepted.
(iii) When an unanticipated emergency occurs, the master or agent of a vessel may file an attestation with the Secretary of Labor up to the date on which crewmen perform longshore work.
(A) If, because of an unanticipated emergency, crewmen on a vessel perform longshore work under the prevailing practice exception at a port, a revised manifest shall be submitted together with complete documentation, as specified in paragraph (b)(2)(ii) of this section, within 14 days of the longshore work having been done. Failure to present the required documentation may result in a fine under section 251 of the Act.
(B) All documents submitted after inspection shall be sent to the Immigration and Naturalization Service seaport office that inspected the vessel.
(iv) Attestations are valid for one year from the date of filing and cover nonimmigrant crewmen landing during that period if the master or agent states on the manifest that the vessel's crew continue to comply with the conditions in the attestation. When the vessel's master or agent intends to use a previously accepted attestation that is still valid, the master or agent shall submit a copy of the notification from the Secretary of Labor that the attestation was accepted and shall note on the manifest that the vessel continues to comply with the conditions of the attestation.
(3) Use of automated self-unloading conveyor belt or vacuum-actuated system on a vessel. An automated self-unloading conveyor belt or a vacuum-actuated system may be operated by a nonimmigrant crewman under the prevailing practice exception when no collective bargaining agreement at the local port prevents it. The master or agent is not required to file an attestation for nonimmigrant crewmen to perform such activity in such a circumstance unless the Secretary of Labor has determined that such activity is not the prevailing practice at that port, and has publicized this finding. When invoking this exception, the master or agent of the vessel shall annotate the manifest that the longshore work consists of operating a self-unloading conveyor belt or a vacuum-actuated system on the vessel under the prevailing practice exception.
(4) Sanctions upon notification by the Secretary of Labor. If the Immigration and Naturalization Service is notified by the Secretary of Labor that an entity has either misrepresented facts in its attestation or has failed to meet a condition attested to, then the Immigration and Naturalization Service will take the necessary steps to prevent the landing of vessels owned or chartered by the offending entity in accordance with section 258(c)(E)(i) of the Act. The Service may also impose a sanction as provided in that section, including the prohibition of any vessel owned or chartered by the violating entity from landing at any United States port for up to one year.
(5) The three variations of the prevailing practice exception - collective bargaining agreement, attestation process, and automated equipment - are port specific. If a vessel is to use nonimmigrant crewmen to perform longshore work under the prevailing practice exception, the appropriate documentation required under paragraph (b)(2) of this section must be presented for each port at which the longshore work will be performed.
(c) Reciprocity exception. Nonimmigrant crewmen may perform longshore work in a United States port under this exception if:
(1) The vessel on which the crewmen serve is registered in a country that does not prohibit crewmen aboard United States vessels from performing longshore work, or a specified longshore activity, when United States vessels land in that country, as determined by the Secretary of State; and
(2) The master or agent presents an affidavit from the crewmen's employer or the vessel's owner that a majority of the ownership interest in the vessel is held by nationals of a country or countries that do not prohibit such longshore activity by crewmen aboard United States vessels when they land in those countries.
(d) Vessels that qualify for multiple exceptions. A vessel that qualifies for more than one exception under this section may invoke the exception that the master or agent chooses.
(e) Lack of documentation required by an exception. If a vessel invokes an exception to the prohibition against nonimmigrant crewmen performing longshore work, but lacks any documentation required to accompany the manifest when invoking the exception, then the vessel's crewmen shall not perform longshore work. If the longshore work is performed despite the lack of documentation that the immigration officer has noted on the Form I-410, then the vessel is subject to fine under section 251(d) of the Act.