Operating Offshore
In an Evolving Security, Immigration and Regulatory Environment
By Jonathan K. Waldron & Tara L. Leiter
The September 11, 2001 terrorist attack on the United States and hurricanes Katrina and Rita in 2005 continue to have lasting effects on operations on the Outer Continental Shelf (OCS). Specifically, the terrorist attacks resulted in the tightening of U.S. borders with regard to visa requirements and related enforcement. Moreover, the hurricanes resulted in unprecedented damage offshore and the migration of qualified workers to other areas outside the Gulf of Mexico making it more difficult and time consuming for employers to crew vessels and man facilities operating on the OCS. Although it is difficult to forecast work offshore in 2008, it is reported, to date, that only half of the hurricane cleanup work related to damaged platforms and wells on the Gulf Coast OCS has been completed with the Minerals Management Service expecting work to continue until 2013. In addition, there is a continuing need for OCS deepwater offshore exploration and development.
Visa Requirements & Enhanced Enforcement
The U.S. Customs and Border Protection (CBP) is continuing to step-up enforcement of visa requirements related to foreign individuals working on vessels and platforms on the OCS. Historically, foreign individuals working on vessels and platforms were able to work offshore with a crewmember transit visa (C1/D visa) or no visa at all due to limited enforcement of the requirement to possess a B1 (OCS) visa. Soon after September 11, 2001, CBP started closely monitoring individuals that enter the United States to provide relief offshore and persons engaged in OCS activities offshore to ensure compliance with the B1 (OCS) requirement. CBP prohibits crewmembers from leaving a vessel and requires owners and operators of vessels to provide for armed guards ashore and to escort them to an airport for repatriation if a crewmember does not possess a valid B-1 (OCS) visa. In addition, although CBP has not histori24 MTR
cally pursued penalty action, owners and operators are subject to fines of $3,300 per crewmember for visa violations. Moreover, CBP has recently reported an increasing number of cases of deserters (those with a valid visa leaving the ship and disappearing into the United States). As a result, CBP is requiring owners and operators to ensure that a crewmember signing off a vessel has a scheduled departure flight without spending any time vacationing or otherwise delaying a departure from the United States. Of course, in a particular case, CBP may impose restrictions on the departure or arrival of a crewmember, including armed guard requirements, based on (1) intelligence information, (2) the past history of the vessel, owner, or operator, or (3) or the nationality of a crewmember. The processing and approval of citizenship exemption requests often takes up to 60 to 90 days from start to finish. A vessel or facility OCS exemption must first be obtained from the Coast Guard before an individual may obtain a B-1 (OCS) visa from an American embassy overseas. OCS exemptions can be obtained based on vessel foreign ownership, demise charter arrangements to a foreign entity, demonstration of the lack of qualified U.S. citizens, or specialty positions not considered part of the normal crew complement. Accordingly, companies operating offshore with foreign nationals must take proactive advance actions to ensure that its operations are not delayed by ensuring that B-1 (OCS) visas are obtained by crew members and relief crewmembers well in advance of operations and that advance reports and coordination efforts are taken with appropriate CBP and Coast Guard officials. Vessel owners and operators are strongly encouraged to seek U.S. legal counsel to assist in the process. Failure to secure not only the citizenship exemption, but also the proper B-1 (OCS) visas for a vessel's crew in a timely manner, may result in fines, penalties, lengthy operational delays and personnel issues such as refusal to allow crewmembers ashore, meet a vessel, or deportation under armed guard.
April 2008
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