State Department: Problems in Compiling List of Countries Restricting
Longshore Activities (Letter Report, 02/03/94, GAO/NSIAD-94-97).
Historically, U.S. immigration law has allowed the crewmembers of
foreign-owned and -registered ships to work aboard their vessels while
in U.S. ports or coastal waters. Since 1980, however, legislative
changes have prohibited these alien crewmembers from performing
longshore work either aboard their vessels or dockside. The law provides
for reciprocity between the United States and foreign countries that do
not restrict crewmembers aboard U.S. ships from doing longshore work in
their ports. In order to implement the reciprocity exemption, the State
Department is required to compile and maintain an annual list of
countries that prohibit crewmembers aboard U.S. ships from doing
specific types of longshore work. This report reviews the State
Department's criteria and methodology for compiling the list.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: NSIAD-94-97
TITLE: State Department: Problems in Compiling List of Countries
Restricting Longshore Activities
DATE: 02/03/94
SUBJECT: International relations
Sanctions
Harbors
Data collection operations
Information analysis operations
Foreign governments
Maritime law
Labor law
Employment of foreign nationals
IDENTIFIER: Bulgaria
Ethiopia
Ghana
Algeria
Germany
Venezuela
Guatemala
Madagascar
Philippines
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Cover
================================================================ COVER
Report to Congressional Requesters
February 1994
STATE DEPARTMENT - PROBLEMS IN
COMPILING LIST OF COUNTRIES
RESTRICTING LONGSHORE ACTIVITIES
GAO/NSIAD-94-97
State Department
Abbreviations
=============================================================== ABBREV
Letter
=============================================================== LETTER
B-256097
February 3, 1994
The Honorable Lee H. Hamilton
Chairman, Committee on Foreign Affairs
House of Representatives
The Honorable Olympia J. Snowe
Ranking Republican Member
Subcommittee on International Operations
Committee on Foreign Affairs
House of Representatives
Section 258 of the Immigration and Nationality Act of 1952, 8 U.S.C.
1288, as amended, places limitations on the performance of longshore
work by alien crewmembers.\1
Subsection 258(d) provides a reciprocity exception to the limitations
and requires the State Department to compile and annually maintain a
list of countries ineligible for the exception because they restrict
crewmembers aboard U.S. vessels from performing longshore activities
in their ports. In response to your request, we have reviewed
State's criteria and methodology for compiling the list.
--------------------
\1 This section was added by section 203 of the Immigration Act of
1990 (P.L. 101-649).
BACKGROUND
------------------------------------------------------------ Letter :1
Historically, U.S. immigration laws generally allowed the
crewmembers of foreign-owned and -registered ships to perform certain
work aboard their vessels while in U.S. ports or coastal waters.
However, the legislation, as amended in 1990, places limitations on
the type of work these alien crewmembers may perform. Specifically,
alien crewmembers are now prohibited from performing what the
legislation defines as longshore work either aboard their vessels or
dockside. Longshore work is defined in the legislation to include
any activity relating to the loading or unloading of cargo, the
operation of cargo-related equipment, and the handling of mooring
lines. The intent of the law is to provide greater protection for
U.S. workers from the loss of job opportunities that may otherwise
result from alien crewmembers performing longshore work.
The legislation permits an exception to the restriction to provide
for reciprocity between the United States and countries that do not
prohibit crewmembers aboard U.S. vessels from engaging in longshore
activities in their ports. In order to implement the reciprocity
exception, the Secretary of State is required to compile and annually
maintain a list of countries that prohibit--by law, by regulation, or
in practice--crewmembers aboard U.S. ships from performing specific
types of longshore activities. Crewmembers aboard ships registered
in or owned by nationals of countries on the list would be similarly
restricted from performing longshore work in U.S. waters.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :2
In December 1991, State published a list of 50 countries that
restrict longshore work by crewmembers aboard U.S. vessels.
Although State revised the list in 1992, adding 13 countries, the
revised list was not published until December 13, 1993. In general,
State's criteria and methodology have tended to limit the number of
countries placed on the list.
State determined that only countries with specific laws, regulations,
or government-imposed or -approved practices that restrict longshore
work would be placed on the list. Thus, countries with restrictive
practices that were not government sanctioned, such as collective
bargaining agreements between private parties, are not on State's
list. State also excluded from the list countries (1) that did not
enforce their restrictions on longshore work or (2) where there were
government-approved restrictive practices in place, but where no U.S.
ships had called during the past year.
State's interpretation of the law is more narrow than some proponents
of the legislation believe was intended. Regarding State's
determination not to consider as restrictive practices those
practices that are not government imposed or approved, we found that
the legislation is susceptible to varying interpretations but that
State's interpretation is legally supportable. However, State's
position on nonenforcement and ship calls is not supported by the
legislation or the legislative history.
To collect information, State requested that its overseas posts
provide information on host countries' laws, regulations, and
practices affecting longshore work, but did not specify what
information it needed to enable it to fairly apply its criteria for
placing countries on the list. For example, State did not ask its
overseas posts to report on whether restrictions were enforced or the
frequency of port calls by U.S. vessels. Moreover, State did not
specify a reporting format. Consequently, overseas posts reported
information in varying levels of detail and in differing formats.
The information collected was not uniform or comprehensive, making
consistent application of the criteria difficult. As a result, some
of State's decisions on individual countries appear arbitrary and not
fully and clearly supported. State officials acknowledged
difficulties in obtaining the necessary data, determining and
applying its criteria, and compiling the list.
DEVELOPMENT OF THE LIST
------------------------------------------------------------ Letter :3
The legislation requires the Secretary of State to compile and
annually maintain the list of restrictive countries through the
notice-and-comment rulemaking procedures of the Administrative
Procedures Act. State's Office of Maritime and Land Transport,
within the Bureau of Economic and Business Affairs, was responsible
for the list. It assigned an officer to work on developing the list
on a part-time basis.
In March 1991, State directed its overseas posts to determine,
through contact with host government authorities and other sources of
information, the laws, regulations, and practices regarding longshore
work by crews of U.S. vessels. The Office of Maritime and Land
Transport analyzed the information to determine which countries
should be placed on the list. In May 1991, a preliminary list of 47
countries, along with a description of their respective restrictions,
was published in the Federal Register. After receiving comments and
performing further analysis, State published an amended list in
December 1991, containing 50 countries.
In order to update the list annually, as required, State directed its
overseas posts in October 1992 to report on any changes since 1991.
In November 1992, State prepared an updated list. However, due to
personnel turnovers and other factors associated with the change of
administration at both State and the Office of Management and
Budget,\2 the updated list was not published until December 13, 1993.
The updated list contains
63 countries (see app. II). State did not ask its overseas posts to
provide additional information in 1993; thus, the current list is
based on 1992 information.
--------------------
\2 The Office of Management and Budget reviewed State's list prior to
its publication in the Federal Register.
STATE'S CRITERIA LIMITS NUMBER
OF COUNTRIES ON LIST
------------------------------------------------------------ Letter :4
State's criteria for placing a country on the list was that the
country's restrictions on longshore work by crewmembers aboard U.S.
ships must be imposed or approved by the government on a national
basis (1) by law or regulation, (2) through a collective bargaining
agreement directly negotiated by the foreign government with other
parties, or (3) through restrictions in private collective bargaining
agreements officially imposed or approved by the foreign government.
However, countries were not placed on the list if they did not
enforce their restrictions or their restrictions were imposed through
practices--not laws or regulations--and no U.S. ships had called on
their ports within the past year.\3 It was also State's policy to
omit countries from the list if the evidence of any restrictions was
inconclusive.
While representative industry groups and associations\4 have
expressed strong support for State's criteria, longshoremen's
unions\5 and some Members of Congress are critical of State's
criteria. They argue that the criteria are based upon a faulty
interpretation of the law, specifically, State's interpretation of
the term "in practice." The legislation states that the list should
include all countries that prohibit longshore work by crewmembers
aboard U.S. vessels by law, by regulation, or in practice. State
interpreted the term "in practice" as referring only to restrictive
practices imposed or approved by the foreign government.
State's interpretation of the term "in practice" results in a more
narrow application of the law than critics believe was intended.
Many countries in which there are restrictive practices did not meet
State's criteria and remain eligible for reciprocity. For example,
collective bargaining agreements in Barbados, Canada, Ireland,
Ecuador, and New Zealand prohibit crewmembers aboard U.S. vessels
from performing longshore work. These countries are not on the list,
however, because State determined that the agreements were not
government sanctioned or imposed. Critics of State's interpretation
argue that the intent of the law and the term "in practice" was to
encompass all restrictive practices that in fact exist.
Longshoremen's unions also question the basis of State's other
criteria--nonenforcement and ship calls--which further limit the
number of countries on the list. State officials said that support
for these criteria is implied in both the legislative history and
language of the law. A State official explained that the law and its
legislative history use the treatment of crewmembers aboard U.S.
vessels as a criterion for determining the reciprocity exception. If
countries do not enforce restrictions or U.S. vessels do not call on
a country, crewmembers aboard U.S. vessels have not been prohibited
from performing longshore work. According to State, the 1-year
criterion applied to U.S. ship calls parallels the time frame the
legislation requires State to consider when evaluating practices in
foreign countries. The legislation requires State to consider the
practices in effect in a foreign country during the 1-year period
preceding the arrival of such country's ship in the United States or
its coastal waters.
We found that the legislation is susceptible to differing
interpretations regarding the criteria used to determine whether
countries should be placed on the list. Regarding the issue of the
meaning and scope of the term "in practice," State's interpretation
is supportable from a legal standpoint. However, support can also be
found for opposing views. A more detailed discussion of the
legislation, together with State's and the opposing views, are
presented in appendix I.
Concerning State's views on nonenforcement and ship calls, neither
the legislation nor the legislative history provides support for
these views. Regarding a country's nonenforcement of a restriction,
the legislation refers only to the existence of any restrictive law,
regulation, or practice. Enforcement or nonenforcement of such a
restriction is immaterial.
On similar grounds we also question State's view on ship calls, in
that the existence of a covered restrictive practice in a foreign
country requires its placement on the list. While a U.S. ship may
not have called on a foreign country's port within the past year, the
restrictive practice nevertheless still exists that presumably could
be enforced when a U.S. ship does call at some future time.
Further, although there may be some parallel between the 1-year time
frame for U.S. ship calls and the 1-year time frame in evaluating a
country's restrictive practice, the express terms of the legislation
do not give State latitude to apply a 1-year criterion to U.S. ship
calls as a basis for excluding a country from the list.
--------------------
\3 The nonenforcement of restrictions criterion, according to State,
also applies to situations where the government permits crewmembers
to perform restricted longshore work if the local longshore workers
are compensated for their lost work, as in Cyprus. We also noted in
one instance that State interpreted nonenforcement to include a
situation where restrictions had never been enforced because there
had not been an opportunity to enforce them. Singapore, according to
the U.S. Embassy, has a general provision, with the force of law,
that requires persons working at the port to be licensed or
authorized for that purpose. Such a provision constitutes a
restriction on longshore work. Singapore was omitted from the list,
however, because the Embassy reported that the provision had never
been invoked. No one had requested permission for crewmembers to do
longshore work. Thus, according to State, Singapore did not enforce
its restrictions.
\4 The United States Members of the International Association of
Great Lakes Ports, the American Iron and Steel Institute, and the
Shippers for Competitive Ocean Transportation.
\5 The International Longshoremen's Association, AFL-CIO and the
International Longshoremen and Warehousemen's Union, AFL-CIO.
WEAKNESSES IN DATA COLLECTION
COMPLICATED ANALYSIS
------------------------------------------------------------ Letter :5
We reviewed the information provided by the overseas posts and
attempted to determine if the data supported State's decisions on
whether each country should be on the list. We found that there was
great variance in reporting styles and level of detail, and that for
some countries the information was unclear, incomplete, and
inconsistent. We found it difficult to analyze the information
systematically and, in some cases, to reconcile State's decisions
with available evidence.
State also experienced analysis difficulties. For example, on the
basis of information reported in 1991, State did not place Bulgaria,
Ethiopia, and Ghana on the list. However, after reexamining the same
information, State added the countries to the 1993 list. State
officials said comments submitted by the unions prompted some of the
reexaminations.
Data analysis was complicated for several reasons. First, according
to State, some foreign countries' laws and regulations are ambiguous
in how they pertain to longshore work, particularly when trying to
relate them to specific longshore activities, such as the handling of
containers or the rigging of ship's gear, as required for compiling
the list. Moreover, what constitutes longshore activities is not
universally agreed upon. Difficulties resulting from these factors
will continue despite State's efforts to improve its data collection
efforts. Second, the questions asked by State were not specific
enough to ensure that overseas posts would provide the detailed
information required to uniformly apply State's criteria to all
countries. Each overseas post answered the broad questions in its
own format, making it difficult to analyze and ensure consistent
decisions.
Following are some examples of problems we noted during our analysis
of reports from the overseas posts. These problems raise serious
doubts about whether the State Department could have consistently
applied its stated criteria.
State did not ask its overseas posts to determine whether countries
were enforcing their restrictions or to report on the frequency
of U.S. ship calls even though such information was a basis for
omitting countries from the list. Consequently, most overseas
posts did not report such information. We noted that Cyprus and
Singapore, which have restrictions on longshore work, were
omitted from the list because State determined that they did not
enforce their restrictions. Only one country, Liberia, was
identified by State as being omitted on the basis of no U.S.
ship calls.\6
State did not ask its overseas posts to specifically review
countries' labor laws to determine whether foreigners desiring
to work in the country must have government permission, such as
a work permit. Such a requirement, State determined, would
place the country on the list. Although reports from overseas
posts in Algeria, Germany, Venezuela, and some other countries
discussed labor law requirements, most post reports focused on
port laws, regulations, and practices and did not mention
whether labor laws were reviewed. We noted that Algeria and
Germany were placed on the list because of their work permit
requirements. Venezuela, however, was not placed on the list,
although the post's 1992 report mentioned that foreigners needed
an appropriate visa to work on a temporary basis in Venezuela.
State had no explanation for Venezuela's omission from the list.
U.S. posts in some countries did not report sufficient information
to determine whether restrictive practices were government
imposed or approved. Although in some cases State sought
clarifying information, overseas posts did not always respond to
State's request. We noted
13 countries for which we could not determine from the
information that State had whether the restrictive practices
were government sanctioned. Some of the countries, such as
Guatemala, Madagascar, and the Philippines, were placed on the
list, but others, such as Iceland, Ireland, Malaysia, and
Mexico, were not.
State's policy was to exclude countries from the list if there was
no conclusive evidence of restrictions. For example, Mexico was
omitted from the 1991 list, according to State, because the
information provided by the U.S. Embassy in Mexico City was
inconclusive. The Embassy provided several reports but was
unable to provide definitive information to determine if
restrictions existed, partially because Mexico was in the
process of privatizing its ports and changing the policies and
regulations governing them.
--------------------
\6 State cited this criteria as the basis for omitting Liberia from
the 1991 list. On the basis of subsequent embassy reports, State
determined in 1992 that Liberia did not have restrictive laws,
regulations, or practices.
STATE DID NOT OBTAIN
INFORMATION ON SOME
COUNTRIES
---------------------------------------------------------- Letter :5.1
State obtained information on only about 60 percent of the countries
with seaports. Lloyd's of London reports show that about 170
countries have seaports, but State received information on only 104
of these countries. Without information on the laws, regulations,
and practices of the other countries, State had no basis to conclude
that there were restrictions; thus, none of the countries were placed
on the list.
State provided the following reasons why it obtained no information
on some seaport countries:
U.S. posts in 27 countries did not provide reports in either 1991
or 1992. State explained that 21 of the nonreporting posts were
small posts and that because of their limited personnel, special
clearance was required before they could be tasked with the
reporting requirement. The Office of Maritime and Land
Transport did not seek such clearance for requesting reports on
longshore restrictions.
The United States does not have diplomatic relations with six
countries, such as Iran. Information on these countries would
be difficult to obtain. Moreover, ships from these countries do
not call at U.S. ports.
The United States does not have posts in seven small, independent
countries, such as the Maldive Islands, and therefore,
information would be difficult to obtain.
The United States does not have posts in 24 seaport countries that
are territories or possessions of other countries, such as the
Cayman Islands (United Kingdom), or are self-ruling countries
associated with another country, such as Greenland (Denmark).
State Department officials told us they are currently reviewing
the treatment of such countries for purposes of compiling the
list.
DESPITE SOME IMPROVEMENTS,
1992 DATA COLLECTION
REMAINED FLAWED
---------------------------------------------------------- Letter :5.2
State revised its 1992 information request to include additional
information regarding the type of practices and activities that
should be reported and more clearly explained its interpretation of
the term "in practice" and collective bargaining agreements--both
issues that generated the most comments from concerned parties. The
revised request, however, did not significantly improve the level of
detail reported nor ease the analysis difficulties. State again
asked broad questions, did not fully explain its analysis criteria,
and did not specify a reporting format.
Furthermore, State received information about fewer countries in 1992
than it received in 1991, 85 in 1992 versus 94 in 1991. Although 10
overseas posts reported for the first time in 1992, 19 posts that
reported in 1991 did not report in 1992.
RECOMMENDATIONS
------------------------------------------------------------ Letter :6
With relatively small changes in how it obtains information and
determines which countries to place on the list, State can
significantly improve its data collection and decision-making
procedures. These actions can help State compile a list that is more
complete and supportable. Therefore, we recommend that the Secretary
of State improve the methodology used to compile the list of
restrictive countries by tasking the Director of the Office of
Maritime and Land Transport to (1) clearly and thoroughly state the
criteria for determining which countries to place on the list, (2)
determine specific data requirements and develop appropriate
questions designed to solicit required information, (3) design a
standardized reporting format to facilitate analysis, (4) obtain
information on all seaport countries or clearly identify in the
Federal Register those countries for which no information was
obtained and the reason why, and (5) develop a follow-up procedure to
ensure that reports are received from all tasked overseas posts and
to obtain any necessary clarification.
We also recommend that the Secretary of State add to the list those
countries with restrictions on longshore work that were omitted on
the basis that no U.S. ships had called on their ports within the
previous year or that they did not enforce their restrictions.
MATTERS FOR CONGRESSIONAL
CONSIDERATION
------------------------------------------------------------ Letter :7
If the Congress does not believe a country's restrictive practices on
longshore activities should refer only to those that are approved or
sanctioned by the host country government, as State has determined,
then it may wish to amend section 258 of the Immigration and
Nationality Act of 1952, as amended, to indicate that all
practices--government approved or not--that have the effect of
restricting longshore activities by U.S. crewmembers require that
the country be included on the State Department's list of restrictive
countries.
VIEWS OF PROGRAM OFFICIALS
------------------------------------------------------------ Letter :8
Officials in the Office of Maritime and Land Transport believe that
State has carried out its responsibilities under this legislation in
a reasonable and responsible manner. They noted that many foreign
crewmembers who had been engaged in longshore activities prior to the
1990 legislation can no longer participate in longshore work, which
is now reserved for U.S. workers. They also noted that many of the
United States' major trading partners are among the 63 countries on
the list, including Japan, Korea, Germany, and France. Moreover,
they noted that many of the countries for which State did not obtain
longshore information do not have vessels that call at U.S. ports.
Regarding its interpretation of the legislation, State intends to
reexamine standards for the reciprocity exception as it updates the
list. State plans to seek public comment on the issue in a
forthcoming notice to be published in the Federal Register.
The officials said that State recognizes the importance of developing
more comprehensive data collection procedures and intends to utilize
suggestions in the report in future updates to the list. They agreed
with our recommendations to improve how State obtains information and
determines which countries to place on the list.
SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :9
We reviewed the language and legislative history of section 258 and
correspondence from longshore labor unions, the State Department, and
Members of Congress--both proponents and critics of State's
implementation of subsection 258(d)--to obtain their respective views
and arguments. We interviewed officials from the Department of
State's Office of Maritime and Land Transport to review the criteria
and methodology for compiling the list and met with longshore labor
union officials to discuss their concerns. We also reviewed
documentation used by State to decide whether to place a country on
the list. We did not attempt to evaluate the impact of the
reciprocity exception, as it is being implemented, on longshore work
in the United States.
We conducted our review between September and December 1993 in
accordance with generally accepted government auditing standards. As
you requested, we did not obtain formal agency comments on this
report. However, we discussed the contents of the report with
officials in State's Office of Maritime and Land Transport and have
incorporated their comments as appropriate.
---------------------------------------------------------- Letter :9.1
Unless you publicly announce this report's contents earlier, we plan
no further distribution until 30 days after its issue date. At that
time, we will send copies to interested congressional committees and
the Secretary of State. We will also make copies available to others
on request.
Please call me on (202) 512-4128 if you or your staff have any
questions concerning this report. Major contributors to this report
are listed in appendix III.
Joseph E. Kelley
Director-in-Charge
International Affairs Issues
INTERPRETATION OF SECTION 258 OF
THE IMMIGRATION AND NATIONALITY
ACT OF 1952, AS AMENDED
=========================================================== Appendix I
BACKGROUND
Historically, U.S. immigration laws have generally allowed alien
crewmembers, as a special class of nonimmigrant aliens, to perform
certain work aboard ships located in U.S. ports or coastal waters.\1
A crewmember is a person performing work required for the normal
operation and service of a vessel.
This changed in 1990 when the Congress enacted section 203 of the
Immigration Act of 1990. Section 203 added a new section, section
258, to the Immigration and Nationality Act of 1952, 8 U.S.C. 1288,
as amended, which restricts alien crewmembers from performing
longshore work in U.S. ports or coastal waters. The purpose of the
legislation is to protect U.S. longshore workers from the loss of
job opportunities that may otherwise result from alien crewmembers
performing longshore tasks.
The legislation establishes three exceptions to the restriction: (1)
for activities regulated by the Secretary of Transportation for
safety purposes and environmental protection, (2) for
well-established "prevailing practices" related to particular
longshore activities in particular ports, and (3) for reciprocal
treatment from another country.
The "reciprocity exception" contained in the legislation states:
"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.
"The Secretary of State shall . . . compile and annually
maintain a list, of longshore work by particular activity, or
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 . . . .
"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."
STATE DEPARTMENT INTERPRETATION
Pursuant to subsection 258(d), in May 1991 the State Department
issued an interim rule containing a list of foreign countries where
the performance of particular types of longshore work is prohibited
by law, by regulation, or in practice.\2 A foreign country's
inclusion on this list meant that the reciprocity exception would not
be available to the extent of such restrictions, and therefore, alien
crewmembers on vessels registered in or owned by nationals of that
country would not be allowed to perform comparable longshore work in
the United States. Conversely, foreign countries that were not
listed would be eligible for a reciprocity exception, and alien
crewmembers on board their vessels\3 would be allowed to perform
longshore work in the United States.
In December 1991, State issued its explanation regarding the scope of
the reciprocity exception.\4 The Department stated:
"The Department is listing those countries where restrictions on
longshore activities by crewmembers of U.S. ships are imposed
or approved by the foreign government on a national basis:
-- By law or regulation,
-- Through a collective bargaining agreement directly
negotiated by the foreign government with other parties, or
-- Through restrictions in private collective bargaining
agreements imposed or approved
by the foreign government."
Thus, State views the reciprocity exception as not applying to those
situations where the foreign government imposed or approved
restrictions, by means of a law, regulation, or "in practice" through
the operation of a collective bargaining agreement. That is, even if
restrictive practices exist, the Department takes the view that the
exception will still be available if the foreign government has not
played an active role in imposing such restrictions.
In support of its position, State pointed to the language in the
legislation, the related conference report, and a colloquy between
Senators Edward Kennedy and Brock Adams. The conference report made
the following statement regarding the reciprocity exception:\5
"The section provides three exceptions to its definition of
longshore work: for cargo regulated by the Secretary for safety
purposes and environmental protection; for well-established
prevailing practices of using alien crewmen to perform
particular longshore activities in particular ports; and for
international reciprocity between the United States and
countries that do not prohibit crewmen from performing
particular longshore activities aboard U.S. vessels in their
respective ports."
[Text omitted.]
"The exception for reciprocity requires a foreign vessel to be
registered in a country, and owned by nationals of a country,
each of which does not prohibit by law, regulation, or general
practice crewmen from performing longshore activities aboard
U.S. vessels in its ports. The provision would require the
Secretary of State to survey foreign laws and practices to
compile annually and, after a notice and comment, it would
maintain a list by particular activity of countries where
performance of such a particular activity of longshore work is
prohibited by law, regulation, or in practice."
The pertinent parts of the colloquy between Senators Adams and
Kennedy, discussing the reciprocity exception, are as follows:\6
"Mr. ADAMS . . . I want to confirm the conference
committee's agreement on the degree of protection this provision
provides for U.S. longshoremen. It is my understanding that
another country's prohibition in practice of U.S. or other
foreign crewmen performing longshore work is to consist of any
effective restriction imposed or sanctioned by the other
country's government. Such a restriction could take the form of
a collective bargaining agreement protecting longshore work for
domestic longshoremen or an industry contract or agreement that
effectively imposes any restriction on U.S. crewmen performing
longshore work in that country. Any such prohibition by the
other country on any particular longshore activity would be
listed by the Secretary of State for the purpose of limiting the
rights of alien crewmen to perform longshore work in U.S.
ports.
"Mr. KENNEDY. The Senator is correct. A prohibition in
practice could include any type of restriction you described.
The list of countries imposing such prohibitions, compiled by
the Secretary of State, is to record every such prohibition
wherever it may be found, so that vessels owned and registered
in other countries will only be allowed to have their crew do
longshore work in the United States to the actual extent that
those countries allow U.S. crewmen to do exactly the same work
in those countries."
On the above grounds the State Department commented:\7
"The Department agrees with the comment that Congress does not
want to grant an exception to crews of countries that do not
accord U.S. crews the same treatment. Subsection 258(d)(1),
however, only refers to restrictions in which the government has
an active role. The conference report uses the same
construction. Moreover, the colloquy explicitly refers to
restrictions sanctioned or imposed by a country's government.
The Department has therefore concluded that a reasonable
interpretation of the Act would only apply to restrictions
actively imposed or sanctioned by a foreign government."
Regarding restrictive collective bargaining agreements in foreign
countries, the Department stated that such agreements
"duly negotiated under a foreign country's labor law should not
affect that country's eligibility for reciprocal exemption
unless the country's government imposes or sanctions the
agreements. The mere existence of agreements restricting
longshore activities does not mean that the government supports
or requires such restrictions. As in the U.S., the labor laws
of many countries guarantee the right of collective bargaining
but do not dictate the terms of collective bargaining
agreements."\8
State has also argued that subsection 258(b)(3) recognizes collective
bargaining activities as a distinct sphere of activity not subject to
the act. That section provides that:
"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."
The conference report commented as follows:\9
"This section affects only 8 U.S.C. 1101(a)(15)(D)(i) [part of
the immigration laws]. It does not affect labor-management
relations, and it does not authorize the Attorney General or the
Secretary of State to take any action which would supersede or
abrogate any U.S. collective bargaining agreement or any other
law or agreement."
State's argument is that because this provision protects the sanctity
of privately negotiated collective bargaining agreements in the
United States, State would have great difficulty in justifying to
other countries that their private collective bargaining agreements
are restrictive practices under the law while U.S. collective
bargaining agreements are unaffected. State believes that such an
interpretation would not be considered equitable or reciprocal.\10
Representative industry groups and associations have expressed strong
support for State's view.\11
OPPOSING VIEWS
State's interpretation has created sharp disagreement among affected
groups and organizations, generally with industry representatives
agreeing with State's position and union representatives in
opposition. Various Members of Congress have disagreed with the
Department's views, arguing that the term "in practice" in the
reciprocity exception includes all forms of restrictive practices,
including those maintained by the private sector through the use of
collective bargaining agreements. Some of these opposing views are
contained in the comments section of the pertinent Federal
Register.\12 Following is a representative comment submitted by the
labor unions:
"In the view of International Longshoremen's Association and the
International Longshoremen and Warehousemen's Union (the
longshoremen's unions), the Department's standards for
reciprocity exception articulated in the interim final rule are
not consistent with the guidelines set by Congress in the Act.
The longshoremen's unions hold that the Act has the objective of
preserving longshore work in the U.S. for U.S. longshoremen.
The unions believe that alien longshoremen are doing such work
in U.S. ports while U.S. nationals are not able to perform the
same activities in foreign countries."
Specifically, the unions observe that the statute refers to
activities prohibited by law, regulation, or practice in the country.
The unions believe that this construction applies to any private
agreement that prohibits U.S. mariners from carrying out longshore
work in a foreign country.
Several Members of Congress, one of whom was the original sponsor of
the legislation, also submitted a joint statement calling upon the
Department to modify its interpretation:\13
"The Congressmen advise that subsection 258(d) of the Act only
provides a narrow exception from an otherwise broad and
deliberate effort to stop foreign mariners from doing longshore
work. The Congressmen do not accept the Department's
interpretation of the term `in practice' as it relates to
private collective bargaining agreements. They note that
Congress neither explicitly stated nor implicitly inferred that
a private agreement would have to be imposed or approved by the
government in order to disqualify a country from receiving a
reciprocal exemption."
Regarding the State Department's reliance on the colloquy between
Senators Adams and Kennedy, both these Senators have disagreed with
State's interpretation. In a joint letter to the Secretary of State
dated June 3, 1992, the senators questioned the State Department's
regulations, commenting that State misinterpreted their remarks. The
Senators said that in speaking of practices "imposed or sanctioned"
by foreign governments, their "intent was to preclude from the
reciprocity exemption those practices which may exist despite a
foreign government's best efforts to eliminate them."
Senators Adams and Kennedy further stated that where "a foreign
government takes no effective action to preclude its ports from
barring American crewmen from longshore work, we believe the
Department should conclude that such government has sanctioned this
practice." Finally, the Senators emphasized that in their colloquy,
they noted that collective bargaining agreements and other contracts
that may limit the longshore activities of U.S. crewmen in a foreign
port should cause a country to appear on the State Department's list.
Finally, in a jointly signed letter dated June 16, 1992, to the
Secretary of State, 27 Members of Congress expressed the opinion that
the State Department's regulations do not fully comply with the
letter, spirit, or expressed intent of the new law. The Members
questioned State's interpretation of the "in practice" clause and
pointed out that many foreign countries have private traditional
practices or industry agreements that have the effect of prohibiting
U.S. crewmen from performing longshore work, but are not on the
State Department's list. The Members stated that this situation will
result in a loss of employment opportunities for U.S. labor.
GAO COMMENTS
We found that subsection 258(d), based on its language and
legislative history, is susceptible to differing interpretations.
Both the State Department and its opponents therefore can point to
various legislative references as providing support for their views.
Specifically, the State Department's interpretation of the
reciprocity exception--that the exception is not available only in
those cases where a foreign country has actively imposed or approved
restrictions on longshore work by U.S. crewmen by law, by
regulation, or in practice through the operation of a collective
bargaining agreement--is legally supportable. The language of
subsection 258(d)(1), the conference report, and the colloquy, which
refer to restrictions imposed by a foreign country, provide the
support for the Department's views.
On the other hand, the language and legislative history provide
support for the opposing view that the exception should not be
available when restrictions are imposed in a foreign country through
a privately negotiated collective bargaining agreement. Of
particular importance is the language in the law referring to
restrictive practices in a foreign country and the statutory
definition of the term "in practice" that refers to an activity that
is normally performed in a foreign country. However, the courts have
typically accorded deference to an executive agency's interpretation
of a statute that it is charged with administering.
--------------------
\1 Section 101(a)(15)(D)(i) of the Immigration and Nationality Act of
1952, as amended, 8 U.S.C. 1101(a)(15)(D)(i).
\2 56 Fed. Reg. 24,338 (1991).
\3 The vessels must be registered in and owned by nationals of such
countries.
\4 56 Fed. Reg. 66,970-973 (1991). The list containing restrictive
foreign countries is now codified in
22 C.F.R. Part 89 (1993).
\5 H.R. Rep. No. 101-955 at 124-125 (1990).
\6 136 Cong. Rec. S17,115 (daily ed. Oct. 26, 1990) (statements
of Sen. Adams and Sen. Kennedy).
\7 56 Fed. Reg. 66,973 (1991).
\8 Id.
\9 H.R. Rep. No. 101-955 at 124 (1990).
\10 These statements were made in separate letters dated July 20,
1992, from the Assistant Secretary of State for Legislative Affairs
to Senator Kennedy and Congressman DeFazio.
\11 The United States Members of the International Association of
Great Lakes Ports, the American Iron and Steel Institute, and the
Shippers for Competitive Ocean Transportation.
\12 56 Fed. Reg. 66,971-72 (1991).
\13 56 Fed. Reg. 66,972 (1991).
STATE DEPARTMENT'S LIST OF
COUNTRIES WITH RESTRICTIVE LAWS,
REGULATIONS, OR PRACTICES (AS OF
DECEMBER 13, 1993)
========================================================== Appendix II
The following list identifies 63 countries where, according to the
State Department, longshore work by crewmembers aboard U.S. vessels
is prohibited by law, by regulation, or in practice with respect to
particular activities. Crewmembers aboard ships registered in or
owned by nationals of these countries are similarly restricted from
performing longshore work in U.S. ports or coastal waters. The list
published in the Federal Register identifies the particular
restricted activities for each country.
1. Algeria 33. Korea\a
2. Argentina 34. Kuwait\a
3. Australia 35. Madagascar
4. Belgium 36. Mauritania
5. Belize 37. Mauritius\a
6. Brazil 38. Morocco
7. Bulgaria\a 39. Mozambique
8. Burma 40. Namibia
9. Chile 41. Nicaragua\a
10. China, Peoples Republic of 42. Oman
11. Colombia 43. Pakistan
12. Congo 44. Philippines
13. Costa Rica 45. Portugal
14. Cote d'Ivoire 46. Qatar\a
15. Dominica\a 47. Romania
16. Egypt 48. St. Lucia
17. El Salvador 49. St. Vincent and the
18. Ethiopia\a Grenadines\a
19. France 50. Saudi Arabia\a
20. Germany 51. Sierra Leone
21. Ghana\a 52. South Africa
22. Guatemala 53. Spain
23. Guinea 54. Sri Lanka
24. Honduras 55. Sudan\a
25. India 56. Taiwan
26. Indonesia 57. Thailand
27. Israel 58. Togo
28. Italy 59. Trinidad and Tobago
29. Jamaica 60. Tunisia
30. Japan 61. Turkey
31. Jordan\a 62. Uruguay
32. Kenya 63. Yemen
\a Countries not on the 1991 list.
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix III
NATIONAL SECURITY AND
INTERNATIONAL AFFAIRS DIVISION,
WASHINGTON, D.C.
John Brummet, Assistant Director
Susan Gibbs, Evaluator-in-Charge
Jean Fox, Evaluator
OFFICE OF GENERAL COUNSEL
Raymond J. Wyrsch, Senior Attorney