(a) The Act establishes a rebuttable presumption that the prevailing
practice in U.S. ports is for automated vessels (i.e., vessels equipped
with automated self- unloading conveyor belts or vacuum-actuated
systems) to use alien crewmembers to perform longshore activity(ies)
through the use of the self-unloading equipment. An employer claiming
the automated vessel exception does not have the burden of establishing
eligibility for the exception.
(b) In the event of a complaint asserting that an employer claiming
the automated vessel exception is not eligible for such exception, the
Administrator shall determine whether the preponderance of the evidence
submitted by any interested party shows that:
(1) It is not the prevailing practice at the U.S. port to use alien
crewmember(s) to perform the longshore activity(ies) through the use of
the self-unloading equipment; or
(2) The employer is using alien crewmembers to perform longshore
activity(ies)--
(i) During a strike or lockout in the course of a labor dispute at
the U.S. port; and/or
(ii) With intent or design to influence an election of a bargaining
representative for workers at the U.S. port.
(c) In making the prevailing practice determination required by
paragraph (b)(1) of this section, the Administrator shall determine
whether, in the 12-month period preceding the date of the
Administrator's receipt of the complaint, one of the following
conditions existed:
(1) Over fifty percent of the automated vessels docking at the port
used alien crewmembers for the activity (for purposes of this paragraph
(c)(1) of this section, a vessel shall be counted each time it docks at
the particular port); or
(2) Alien crewmembers made up over fifty percent of the workers who
performed the activity with respect to such automated vessels.
(d) An interested party, complaining that the automated vessel
exception is not applicable to a particular employer, shall provide to
the Administrator evidence such as:
(1) A written summary of a survey of the experience of masters of
automated vessels which entered the local port in the previous year,
describing the practice in the port as to the use of alien crewmembers;
(2) A letter, affidavit, or other written statement from an
appropriate local port authority regarding the use of alien crewmembers
to perform the longshore activity at the port in the previous year;
(3) Written statements from collective bargaining representatives
and/or shipping agents with direct knowledge of practices regarding the
use of alien crewmembers at the port in the previous year.
