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***OFFSHORE OPERATORS COMMITTEE***

September 18, 2006

Bureau of Customs and Border Protection

Office of Regulations and Rulings Branch

1300 Pennsylvania Ave., NW

Washington, DC 20229

Re: Passenger Manifests for Commercial Aircraft Arriving in and
Departing From the United States; Passenger and Crew Manifests for
Commercial Vessels Departing From the United States \[USCBP-2005-0033\]

To Whom It May Concern:

The Offshore Operators Committee (OOC) is a trade association of some
108 companies who conduct essentially all of the OCS oil and gas
exploration and production activities in the Gulf of Mexico. Our
membership represents approximately 95% of the oil and gas production in
the Gulf of Mexico as well as the majority of oil and gas service
providers engaged in support of the general membership. Comments made on
behalf of OOC are submitted without prejudice to any member\'s right to
have or express different or opposing views.

Our concerns relate specifically to the administration and enforcement
of the rule as it would be applied to operations in support of
exploration and production of the oil and gas resources of the Outer
Continental Shelf (OCS). It is our view that the current (and proposed)
APIS requirements do little to enhance maritime security with respect to
OCS activities and will, with the onset of enforcement, begin to hinder
oil and gas operations which are vital to our nation's security and
economy. We suggest consideration of an alternative approach, described
below, which we believe has the potential to provide the agencies
involved more appropriate information at an earlier time, with added
efficiencies for both industry and government.

Offshore oil and gas activities on the U.S. OCS are subject to the
exclusive jurisdiction and control of the United States. We ask that
Customs and Border Protection (CBP), along with other agencies with
responsibilities related to security affecting OCS operations, take a
fresh look at the nature of operations on the OCS and/or within the
Exclusive Economic Zone (EEZ) from the standpoint of security and their
authority to assert jurisdiction over such economic activity. These
agencies may then work with industry stakeholders to develop a
regulatory framework for security that is more fitting to the control of
activities that are subject to the exclusive jurisdiction and control of
the United States in a maritime domain that may extend more than 200
miles offshore.

The legal concept of the continental shelf has evolved continually since
President Truman's 1945 declaration of jurisdiction over all resources
on the United States' continental shelf. The sovereign rights of coastal
States with respect to exploration and exploitation of the natural
resources of the continental shelf are accepted under international law
under both the 1958 United Nations Convention on the Continental
Shelf[^1], to which the United States is a party, and the United Nations
Convention on the Law of the Sea, 1982 (UNCLOS).[^2] The latter also
establishes the concept of the Exclusive Economic Zone (EEZ) in which
the coastal State has sovereign rights over all living and non-living
resources. Presidential Proclamation 5030 (10 March 1983) established
the U.S. EEZ. Extending seaward 200 nautical miles from the territorial
sea baseline, the U.S. EEZ overlies much, but not all, of the U.S.
continental shelf.

Various statutes address activities on the continental shelf and within
the EEZ. With respect to the oil and gas activities on the continental
shelf with which OOC is concerned, the primary governing statute is the
Outer Continental Shelf (OCS) Lands Act of 1953, as amended. Section
4(a) of the Act (43 U.S.C. 1333(a)) provides, in part:

> "(a) Constitution and United States laws; laws of adjacent States;
> publication of projected State lines; international boundary disputes;
> restriction on State taxation and jurisdiction (1) The Constitution
> and laws and civil and political jurisdiction of the United States are
> extended to the subsoil and seabed of the outer Continental Shelf and
> to all artificial islands, and all installations and other devices
> permanently or temporarily attached to the seabed, which may be
> erected thereon for the purpose of exploring for, developing, or
> producing resources therefrom, or any such installation or other
> device (other than a ship or vessel) for the purpose of transporting
> such resources, to the same extent as if the outer Continental Shelf
> were an area of exclusive Federal jurisdiction located within a State:
> Provided, however, That mineral leases on the outer Continental Shelf
> shall be maintained or issued only under the provisions of this
> subchapter."

Customs and Border Protection (and prior to its establishment, the U.S.
Customs Service) have made numerous rulings or decisions with respect to
activities in the OCS for the purpose of interpreting and applying
various laws as they apply to the OCS and OCS activities. Almost all of
these decisions narrowly focused on issues relating to cabotage or
tariffs, but in doing so have also served to establish when formal entry
and clearance requirements apply, and by extension, the Advance
Passenger Information System (APIS) requirements and
soon-to-be-implemented passport requirements for Western Hemisphere
travel.

In highlighting certain such rulings and suggesting a fresh look at
operations on the OCS and/or within the EEZ it is not OOC's wish to
infer that these decisions were inappropriate or inaccurate within the
context they were made. Rather, we are suggesting that it may be
possible to develop an alternative approach that would strengthen the
security of the United States in general, and OCS facilities, in
particular, by improving information available to the Agencies having
security responsibilities, while reducing the operational burden imposed
on industry. Key issues associated with the present approach include:

1.  *Attached and engaged.* A central point in many of the rulings is a
    determination whether the vessel or device is "attached to the
    seabed" [and]{.underline} is in use for "exploring for, developing,
    or producing" OCS minerals under the Act. Despite numerous such
    decisions, there remain regional differences in interpretation of
    both what constitutes "attachment" and "exploration for, developing,
    or producing." While these are important decisions from the
    standpoint of cabotage and tariffs, it is OOC's view that they are
    of little relevance to security \-- since it is the simple presence
    of the vessel or device, not its "status" which is of concern. We
    would note that the actual "status" at any particular instant may
    only be known to the vessel's personnel. If one examines the
    operation of a self-elevating MODU (jackup), drilling a well on an
    existing fixed platform, when is it transformed from a foreign port
    or place to a port or place in the United States:

-   When it is placed under a contract, enforceable in a U.S. court, to
    undertake activities subject to the sovereign jurisdiction of the
    United States;

-   When it is moved within 500 meters (the distance at which a safety
    zone can be established in accordance with international law) of the
    fixed facility;

-   When one of its legs first touches the seabed at its intended
    operating position relative to the fixed facility;

-   When there is a physical attachment of the MODU to the fixed
    facility; or

-   When the MODU attaches to the wellhead?

> An argument can be made for each.
>
> While there are numerous rulings with respect to MODUs and their
> activities, the status of many other vessels and activities is less
> clearly defined; *e.g.*, well intervention from a surface vessel,
> construction, pipelaying, etc. Additionally, new and involving
> technology such as the use of Mobile Offshore Production Units
> (MOPUs), Floating Production and Offloading (FPO), Floating
> Production, Storage and Offloading (FPSO) facilities must be
> rationally addressed. Finally, what of the Alternative Energy
> facilities made subject to the OCS Lands Act under Section 388 of the
> Energy Policy Act of 2005? Certain rulings have relied on analysis of
> the language of the act regarding exploration, development and
> production of mineral resources -- How are these rulings to be
> extended to Alternative Energy facilities?

2.  *"Status" changes.* We are unaware of any guidance with respect to a
    change in status (attached or unattached / engaged or not engaged)
    of the offshore location while a vessel or aircraft is enroute to or
    from the location. The near-instantaneous transformation of a
    location from a port or place in the United States to a foreign
    location would seem to be unique to OCS activities. Does the change
    in status of the offshore location while a vessel or aircraft is
    enroute alter the APIS reporting requirements? If so, how is the
    reporting deficiency rectified? If not, why should the "status" be
    of any concern? From a practical standpoint, this would appear to be
    of little security importance; however, it raises significant
    concerns with respect to potential APIS enforcement.

3.  *Aircraft/Vessel terminology differences.* The vessel and aircraft
    provisions use differing terminology. Are the terms "foreign area"
    as used for aircraft and "foreign port or place" as used for vessels
    synonymous for purposes of APIS?

4.  *"Stacked" units.* MODUs which are not under contract (idled or
    "stacked") are often moved from their operating location to another
    offshore location where necessary repairs, maintenance, and
    inspections (including U.S. Coast Guard required inspections) can be
    accomplished. Under such conditions, the MODUs have generally been
    considered a "foreign port or place," irrespective of whether they
    are U.S. or foreign-flag, if located outside the "territorial sea."
    The term "territorial sea" has generally been determined to extend
    three (3) nautical miles from the territorial sea baseline. With
    respect to other vessels, the governing regulations also use the
    term "customs waters." This term is undefined; however, in view of
    Presidential Proclamation 7219 of 2 August 1999 it could possibly be
    considered to extend 24 miles from the territorial sea baseline. Is
    there a pragmatic and efficient way of facilitating transportation
    of personnel and materials between a "stacked" MODU located beyond
    the territorial sea and its supporting heliport / shore base?

5.  *Lack of entry procedures for personnel arriving from foreign
    locations.* As noted above, a MODU that moves from a foreign
    location and attaches to the OCS for purposes of exploration for,
    developing, or producing minerals governed by the OCS Lands Act is
    instantly transformed to a "port or place" in the United States.
    This creates potential difficulties as personnel moving from shore
    in the U.S. to such a unit are intermingled with personnel that may
    have arrived with the unit. Are there APIS reporting requirements
    for the personnel who arrived with the MODU when they are
    transported to shore even though it is now a "port or place" in the
    United States? If not, will such individuals be severely
    inconvenienced if they present themselves for entry into the U.S.
    without an associated APIS report?

6.  *Emergency operations.* With respect to MODU operations, the
    following is an illustrative example of a reasonably foreseeable
    situation where the application of these decisions (potentially
    coupled with either non-pragmatic enforcement or reticence to act
    for fear of enforcement) could pose difficulties:

> A hurricane is approaching a drillship located 180 miles offshore. The
> unit is expected to evacuate its non-essential personnel, disconnect
> the marine riser from the wellhead (*i.e.*, by most interpretations,
> becoming unattached), and proceed to a location away the path of the
> storm. Given the distance offshore, and the relative safety and
> stability of a large, ship-shaped vessel, it may also be expected to
> serve as a temporary refuge for personnel evacuated from nearby fixed
> facilities and to refuel the helicopters used for evacuation of these
> facilities. Strict adherence to the Advance Passenger Information
> System (APIS) reporting obligations could delay dispatch of vessels or
> aircraft (helicopters) to affect the timely evacuation and/or their
> return to shore, inhibit the unrestricted the use of responding
> helicopters or vessels to affect a staged evacuation of personnel, and
> delay the return of personnel to the unit and its resumption of
> operations.
>
> While authority exists for waiving entry and clearance and related
> requirements in emergency situations, can they be relied upon, or must
> they be offered in defense after enforcement action has been
> initiated?

Both the U.S. Coast Guard and the Minerals Management Service, in
regulations issued under the authority of the OCS Lands Act, assert some
level of jurisdiction over vessels which are not "attached and engaged."
For example, in 33 CFR 146.202 the Coast Guard requires information to
be provided by a MODU 14 days before its arrival on the OCS, and in 30
CFR 251 the Minerals Management Service asserts jurisdiction over, and
requires permits for, geological and geophysical explorations of the
OCS, even when conducted from a vessel that is not "attached." We would
note that on 7 December 1999[^3] the Coast Guard proposed comprehensive
amendments to its OCS Activities Regulations (33 CFR Subchapter N). One
of the proposed changes would require advance notice of arrival for
virtually all vessels intending to engage in OCS activities.
Unfortunately, this regulatory initiative has languished as the Coast
Guard has devoted its resources to other pursuits which it deems to be
of greater priority. It is our view this Proposed Rule could be amended
to address a myriad of security-related concerns including but not
limited to foreign vessels employed in OCS activities.

The exercise of sovereignty by the U.S. over activities within the EEZ
and/or on the OCS is tempered by the need to assure that the exercise of
such jurisdiction does not impede the recognized rights of freedom of
navigation (innocent passage). However, it is clear that the U.S. and
other coastal States have sovereign rights with respect to natural
resources and certain economic activities within the EEZ and / or on the
OCS.

In view of the above, we would suggest that Customs and Border
Protection and the Coast Guard, in consultation with the Department of
State, take a fresh look at the authorities for regulation of natural
resource development and other economic activities within the EEZ and /
or on the OCS with the view of establishing a system under which:

-   Any vessel, regardless of size, intending to engage in economic
    activities subject to the jurisdiction of the United States (e.g.,
    all OCS activities regulated under the OCS Lands Act) would provide
    advance notice of its intended arrival from a point seaward of the
    U.S. OCS, providing the information required by the Coast Guard's
    notice of arrival and departure requirements[^4] and APIS.

-   Procedures would be established for provisional entry of the
    vessel's personnel to the U.S. upon its attachment to the OCS and
    for their subsequent formal entry;

-   The master or person in charge of the vessel would acknowledge that
    the vessel was subject to the jurisdiction of the U.S. for the
    purpose of engaging in economic activities subject to the exclusive
    jurisdiction of the U.S., and would remain subject to such
    jurisdiction until a declaration, accepted by CBP, has been made to
    the contrary.

-   The Coast Guard would require that any such self-propelled vessels
    be equipped with Long Range Identification and Tracking (LRIT)[^5]
    or equivalent tracking system, and that the LRIT signal be provided
    to the United States Coast Guard.

-   Vessels or aircraft originating from places outside the United
    States would be prohibited from coming within 500 meters of vessels
    engaged in regulated OCS activities without prior authorization of
    CBP;

-   There would be no further restrictions on, or reports required of,
    the movement of personnel and materials between such vessels engaged
    in regulated OCS activities and/or shore bases and heliports; and

-   Coincidental to a vessel's declaration that it would no longer
    engage in regulated OCS economic activities, the vessel would
    provide the information required by the Coast Guard's notice of
    arrival and departure requirements and APIS.

Regardless of any decision made by CBP with respect to considering the
approach suggested above, we believe that it is imperative that CBP
develop and promulgate, clear policies regarding 'status' determinations
for vessels engaged in OCS activities and, in conjunction with the Coast
Guard, provide clear guidance to the public regarding associated
requirements for reporting movement of material, merchandise and
personnel during routine OCS activities. OOC is willing to assist both
agencies in an outreach campaign to inform companies and individuals
engaged in OCS activities of their responsibilities.

OOC is interested in joining with other interested industry stakeholder
groups to meet with CBP, Coast Guard, MMS and other stakeholder agencies
to discuss how U.S. security objectives can be met without further
hindrance of vital activities on the OCS.

I may be reached at (713) 960-7536 if you wish to discuss this matter
further. Additionally, my office address is: c/o Rowan Companies, Inc.,
2800 Post Oak Blvd., Suite 5450, Houston, Texas 77056.

Sincerely,

OFFSHORE OPERATORS COMMITTEE

William P. Hedrick

William P. Hedrick

Co-Chair

Marine Safety and Security Subcommittee

[^1]: The U.S. became party to the Convention on the Continental Shelf
    on 12 April 1961. It entered into force on 10 June 1964 and has 57
    ratifications.

[^2]: UNCLOS entered into force on 16 November 1994 and has 149
    ratifications. The United States is not presently a party.

[^3]: 64 FR 68415

[^4]: 33 CFR part 160

[^5]: Requirements under the Safety of Life at Sea Convention, including
    technical and performance standards for LRIT systems, are currently
    being developed by the International Maritime Organization.