Applicability of the Immigration and Nationality Act to Aliens Working on Drilling Rigs on the Outer Continental Shelf ( 1979 )

September 21, 1979
79-68 MEMORANDUM OPINION FOR THE
GENERAL COUNSEL, IMMIGRATION AND
NATURALIZATION SERVICE
Outer Continental Shelf—Drilling Rigs—Alien
Workers (43 U.S.C. § 1333)
We have your request for our views concerning the applicability o f the
Immigration and Nationality Act, 8 U .S.C . § 1101 et seq., to persons
working on drilling rigs on the O uter Continental Shelf. The question
arises in the context o f recent amendments to the Outer Continental Shelf
Lands Act, the increase in drilling activity on the Shelf, and protests by
various domestic groups that alien workers should not be employed on rigs
on the Shelf except in conform ance with immigration law requirements.
You have provided us with your m em orandum dated January 16, 1979,
which concludes that the immigration laws do not apply on the Outer C on­
tinental Shelf. We have reviewed that m em orandum and reach the same
conclusion as far as drilling rigs are concerned. O ur reasons, however, are
somewhat different and depend largely on an analysis o f the recent
amendments.
We understand that the immigration laws have never been applied to
drilling rigs on the O uter Continental Shelf. Furtherm ore, until recently
your agency has never had occasion to confront this question. In 1953
Congress enacted the O uter Continental Shelf Lands Act, 43 U.S.C. 1331
et seq., primarily for the purpose o f asserting Federal jurisdiction over the
minerals o f the Shelf. The original Act is basically a guide to the adminis­
tration and leasing o f offshore mineral-producing properties. Congress
adopted the following formula for borrowing domestic law for the Shelf
(43 U.S.C. § 1333(a)(1) ):
The C onstitution and laws and civil and political jurisdiction of
the United States are extended to the subsoil and seabed o f the
outer Continental Shelf and to all artificial islands and fixed
structures which may be erected thereon for the purpose o f ex­
ploring for, developing, removing, and transporting resources
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therefrom , to the same extent as if the outer Continental Shelf
were an area o f exclusive Federal jurisdiction located within a
State * * * .
As enacted in 1953, this language presented two questions of interpreta­
tion: whether drilling rigs were included as “ artificial islands and fixed
structures * * * for the purpose o f exploring etc., and whether the im­
migration laws were among the “ laws * * * extended * * * to the same
extent as if the outer Continental Shelf were an area o f exclusive Federal
jurisdiction located within a S tate.”
You note that the courts have concluded that a drilling rig is a vessel
rather than a “ fixed structure” within the meaning of § 1333(a)(1). E.g.,
Boatel, Inc. v. Delamore, 379 F.(2d) 850 (5th Cir. 1967), and cases col­
lected therein. This was because a rig was designed to float to the place
where it will be used and to be attached to the seabed in a relatively imper­
manent manner, permitting its later removal.
In 1978 Congress amended the O uter Continental Shelf Lands Act. Two
o f those amendments are crucial here. First, it eliminated the reference to
“ fixed structures” in § 1333(a)(1) and substituted a reference to “ all in­
stallations and outer devices permanently or temporarily attached to the
seabed.” O uter Continental Shelf Lands Act Amendments o f 1978, 92
Stat. 635, § 203(a). It is unquestioned therefore that drilling rigs are now
within the language o f § 1333(a)(1). See, e.g., H. Conf. Rept. 1474 at 80.
The question which remains, however, is whether the immigration laws are
adopted by the pertinent language o f this provision. That, in our view, re­
quires reconciling § 1333(a)(1) with another 1978 amendment that, with
certain exceptions, restricts crews o f drilling rigs to U.S. citizens or aliens
admitted for permanent residence. Section 30, O uter Continental Shelf
Lands Act, as added by § 208 o f the Outer Continental Shelf Lands Act
Amendments, 92 Stat. 669.
If § 1333(a)(1) were considered alone, there are arguments suggesting
that the immigration laws should be applied on drilling rigs. Based on a
literal reading o f that provision, it is certainly possible to conclude that the
immigration laws should apply. The 1953 law adopts Federal law “ to the
same extent as if the O uter Continental Shelf were an area o f exclusive
Federal jurisdiction located within a S tate.” The immigration laws apply,
o f course, to Federal enclaves within States. It appears that § 1333(a)(1)
was drafted so that it would include Federal laws which, read by them ­
selves, might be interpreted as being limited in their application to the con­
tinental United States. See W. M. Christopher, “ The Outer Continental
Shelf Act: Key to a New F rontier,” 6 Stan. L. Rev. 23, 42 (1953).'
'This point is similarly argued by our L and and Natural Resources Division in a brief
(pp. 46-47) filed on behalf o f the Environm ental Protection Agency concerning the applica­
tion of the Clean Air Act to the O uter C ontinental Shelf. The m atter is pending in the U.S.
Court o f Appeals for the Ninth Circuit. Exxon Corp. v. E .P .A ., No. 78-1932 et a!.
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This conclusion is supported by the legislative history o f the 1953 Act.
The House had passed a bill that provided: “ Federal laws now in effect or
hereafter adopted shall apply to the entire area o f the outer continental
shelf.” H. 5134, § 9(a), reprinted in O uter Continental Shelf, Hearings
before the Senate Committee on Interior and Insular Affairs, 83d Cong.,
1st sess., p. 681 (1953). This Departm ent, writing to the Senate Commit­
tee, had commented on the House bill, as you note, and pointed out that it
was unclear how the bill would apply where Federal laws by their own
terms only applied to places other than the Shelf. Letter from Assistant
Attorney General Rankin o f May 26, 1953, reprinted in S. Rept. 411, 83d
Cong., 1st sess. 32 (1953). It appears that the am endment employing the
Federal enclave “ within a S tate” formula was substituted as a response to
this criticism, c f , id. 23; W. M. Christopher, op. cit. Furtherm ore, spe­
cific language dealing with employment o f aliens, which had appeared in
the original Senate bill,2 was deleted in committee with the explanation
that “ since all applicable Federal laws are extended to the seabed and sub­
soil o f the outer shelf, the specific provisions respecting aliens are believed
unnecessary.” S. Rept. 411, 83d Cong., 1st sess. 24 (1953). Thus, the fact
that the Immigration and Nationality Act defines “ United States” in a
m anner that does not include the Continental Shelf, 8 U.S.C.
§ 1101(a)(38), is not controlling.3
As you suggest, the 1953 Act imposed something less than complete
sovereignty over the Shelf. This is confirmed by the United Nations C on­
vention on the Continental Shelf, 15 U .S.T. 472, which entered into force
for the United States in 1964.4 See, Treasure Salvors v. Unidentified
Wrecked and A bandoned Sailing Vessel, 569 F.(2d) 330 (5th Cir. 1978) (ex­
tension o f jurisdiction over the O uter C ontinental Shelf Act not extension
for all purposes). The history o f the 1978 amendments suggests, however,
that, as a general m atter, § 1333(a)(1) should be given broad scope. Two
key committee reports state that “ Federal law is to be applicable to all ac­
tivities on all devices in contact with the seabed for exploration, develop­
ment, and production.” H. Conf. Rept. 1474, 95th Cong., 2d sess. 80
(1978); H. Rept. 590, 95th Cong., 1st sess. 128 (1977). The conference
report went on to emphasize that one o f the purposes o f the amendment
:S. 1901, 83d C ong., 1st sess., § 4(g), reprinted in O uter Continental Shelf Hearings,
supra, at 2. U nder this bill the A ttorney General was required to certify that aliens employed
on structures covered by the bill were lawfully adm itted under the Immigration and Na­
tionality Act.
’We cannot, therefore, accept the statem ent at p. 5 o f your m em orandum that the Senate
bill was reported “ notw ithstanding the Justice D epartm ent’s conclusion.” T he change, in
fact, appears to be a result o f the D epartm ent o f Justice comm ent.
‘The convention provides that “ The coastal State exercises over the continental shelf
sovereign rights for the purpose o f exploring it and exploiting its natural resources.” A rt. 2.
The D epartm ent o f State has expressed the view that immigration control over installations
exploiting the natural resources o f the Shelf would not violate the convention. Letter of
January 15, 1979, from Assistant Legal Adviser, Oceans, Environm ent and Scientific A f­
fairs, to you. In any event, as a m atter o f domestic law, the Act, if inconsistent with the con­
vention, would nevertheless prevail Reid v. Covert, 354 U .S. 1, 18 (1957).
364
and its legislative history was to make clear that the customs laws applied
to drilling platforms. The report asserted that this had, in fact, been the in­
tent of the original 1953 Act. H. Conf. Rept. 1474, at 80-81. Logically, it
may be observed that there would seem to be no reason why the customs
laws ought to apply on the Shelf while the immigration laws would not.
Having thus analyzed § 1333(a)(1) in both a textual and historical context,
it would be possible to conclude that, standing alone, it is broad enough to
require application o f the Immigration and Nationality Act to drilling rigs
on the Shelf.
It is necessary, however, to consider the effect o f specific language on
immigration requirements enacted by Congress in 1978. Section 30 o f the
Outer Continental Shelf Act, as added by § 208 of the O uter Continental
Shelf Lands Act Amendments o f 1978, 43 U.S.C. § 1356 (1979 S upp.).5
These new requirements lead us to a contrary conclusion. In general, the
amendment requires that rigs be manned by U.S. citizens or aliens lawfully
admitted to the United States for permanent residence. 43 U.S.C.
’The full text o f this provision reads:
Sec. 30. DO CU M EN TA TIO N , REGISTRY A N D M A NNIN G R E Q U IR E M E N T S.—
(a) W ithin six m onths after the date o f enactm ent o f this section, the Secretary of the
Departm ent in which the Coast G uard is operating shall issue regulations which require
that any vessel, rig, platform , or other vehicle or structure—
(1) which is used at any time after the one-year period beginning on the effective
date o f such regulations for activities pursuant to this Act and which is built or rebuilt
at any time after such one-year period, when required to be docum ented by the laws
o f the United States, be docum ented under the laws of the United States;
(2) which is used for activities pursuant to this Act, comply, except as provided in
subsection (b), with such minimum standards o f design, construction, alteration, and
repair as the Secretary or the Secretary o f the D epartm ent in which the Coast G uard is
operating establishes, and
(3) which is used at any time after the one-year period beginning on the effective
date o f such regulations for activities pursuant to this Act, be m anned or crewed, ex­
cept as provided in subsection (c), by citizens o f the United States or aliens lawfully
adm itted to the United States for permanent residence.
(b) The regulations issued under subsection (a)(2) o f this section shall not apply to
any vessel, rig, platform , or other vehicle or structure built prior to the date o f enact­
ment o f this section, until such time after such date as such vehicle or structure is rebuilt.
(c) The regulations issued under subsection (a)(3) o f this section shall not apply—
(1) to any vessel, rig, platform , or other vehicle or structure if—
(A) specific contractual provisions or national registry m anning requirements
in effect on the date o f enactm ent o f this section provide to the contrary;
(B) there are not a sufficient num ber o f citizens o f the U nited States, or aliens
lawfully adm itted to the United States for perm anent residence, qualified and
available for such work; or
(C) the President makes a specific finding, with respect to the particular vessel,
rig, platform , or other vehicle or structure, that application would not be consist­
ent with the national interest; and
(2) to any vessel, rig, platform , or other vehicle or structure, over 50 percent of
which is owned by citizens o f a foreign nation or with respect to which the citizens of
a foreign nation have the right effectively to control, except to the extent and to the
degree that the President determines that the government o f such foreign nation or
any o f its political subdivisions has implemented, by statute, regulation, policy, or
practice, a national manning requirement for equipm ent engaged in the exploration,
developm ent, or production o f oil and gas in its offshore areas.
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§ 1356(a)(3) (1979 Supp.). Unlike the reference to the customs laws quoted
above, Congress made no assertion as to whether it thought that the Im­
migration and Nationality Act applied through the 1953 Act or the 1978
amendment to § 1333(a)(1).6 The only conclusion that makes sense,
however, is to assume that § 30 is intended to be a self-contained statement
o f the extent to which principles o f immigration control are to be applied.
The purpose o f the conference committee was to “ reconcile the dual con­
cerns o f providing the fullest possible employment for Americans in U.S.
Outer Continental Shelf activities and eliminating to the fullest possible
extent the likelihood o f retaliation by foreign nations against American
workers in foreign offshore activities.” In addition, exceptions were in­
cluded “ to avoid any disruption in OCS [Outer Continental Shelf] ac­
tivities by this manning requirem ent.” H. Conf. Rept. 1474 at 123-24. If
the Immigration and Nationality Act were assumed to be in force on drill­
ing rigs, then the exceptions found in the new controls would be mean­
ingless since the immigration laws do not include authority to create excep­
tions parallel to those in § 30, and the 1978 amendments do not purport to
modify the Immigration and Nationality Act. As a result the delicate
balance that Congress attem pted to strike in § 30 would be upset.
We cannot assume that Congress undertook such a meaningless exer­
cise. See 2A Sutherland, Statutory Construction § 46.06 (Sands, ed. 1973).
Thus, the specific coverage o f § 30 should be given precedence over the
more general application o f the provision for assimilating Federal law on
the Outer Continental Shelf. Id. at § 46.05 note l l . 7 The force o f this argu­
ment is emphasized by examining the exceptions in some detail.
‘O ur attention has been directed to unpublished transcripts o f m ark-up sessions o f the
Conference Com mittee and the House Ad Hoc Select Com m ittee on the O uter Continental
Shelf which indicate that the applicability o f the immigration laws was briefly discussed. The
transcripts show that at the House Com m ittee m ark-up, committee counsel indicated that the
law was uncertain and that he could not say what it was. It does not appear that the members
expressed any views o f their own. House o f Representatives, Ad Hoc Select Committee on
the O uter C ontinental Shelf, M ark-up Session, H.R. 1614, July 26, 1977, Tr. 133-A, 133-H,
133-1. At a meeting o f the Conference Com m ittee, counsel advised that the immigration laws
applied only to American owned and operated platform s; Senator Johnston (La.) expressed a
similar view. Transcript o f July 20, 1978, Conference Com mittee on S. 9 at 9, 14-15. The lat­
ter interpretation presents difficulties o f its own since there seems to be no basis under
§ 1333(a)(1) or the immigration law for excluding foreign-owned operations taking place on
the O uter C ontinental Shelf from the broad scope o f the immigration laws, although § 30
makes such a distinction. U nder all the circumstances, we hesitate to interpret this uncertain
evidence as showing that Congress shared any com m on intent concerning applications o f the
immigration laws.
’Another interpretation might be to assume that the immigration laws apply but that ex­
ceptions have been impliedly authorized by § 30. It seems more logical, however, to assume,
as noted, that Congress, by passing § 30, gave it precedence over 43 U .S.C . § 1333(a)(1), than
to reason that Congress meant to alter provisions o f the immigration laws, a completely
separate statute. M oreover, the latter intepretation would create practical difficulties since
both your agency and the Coast G uard would be m andated to enforce essentially similar
regulations. This would create unnecessary duplication and give rise to the possibility o f in­
consistent interpretation and adm inistration. In addition, we do not believe that § 30 divests
your agency o f jurisdiction over the immigration laws and assigns it to the Coast G uard. If
this had been intended Congress would have so indicated, rather than direct the Coast G uard
to issue regulations implementing § 30, which makes no reference to the immigration laws.
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First, there is an 18-month delay in the effective date o f the restrictions
from the date o f enactm ent. The Coast Guard has 6 m onths to issue
regulations, which take effect 1 year later. 43 U.S.C. § 1356(a)(1) and (3);
H. Conf. Rept. 1474, p. 125.
Second, the restrictions do not apply at all to rigs that are foreign-
owned or foreign-controlled unless the President makes certain findings
based on lack o f reciprocity by other nations. 43 U .S.C . § 1356(c)(2).
Third, since the requirement only extends to “ m anning” or “ crewing,”
specialists, professionals, or other technically trained personnel who han­
dle temporary operations would not be included, H. Conf. Rept. 95-1474
at 125; 43 U.S.C. § 1356(a)(3). Fourth, existing contracts that provide for
foreign manning are preserved. 43 U.S.C. § 1356(c)(1)(A). Fifth, the
President may make a specific finding that application o f the amendment
to a particular rig is not in the national interest. 43 U.S.C. § 1356(c)(1)(C).
The only exception in the amendment that parallels the immigration
laws is for aliens performing services where there are not a sufficient
number of citizens or resident aliens available to perform such services. 43
U.S.C. § 1356(c)(1)(B). The conference report states: “ This is virtually the
present standard o f the immigration law.” H. Conf. Rept. 95-1474 at 124.
Compare 8 U.S.C. § 1101(a)(15)(H)(ii). Implicit in that statem ent,
however, appear to be the assumption that an exception, independent of
the immigration laws, is being created.8
In considering the effect o f the 1978 amendments on the O uter C on­
tinental Shelf Act, we must view the statute as a whole. See 2A Sutherland,
Statutory Construction, § 46.05 (Sands, ed. 1973). We conclude that C on­
gress, in enacting the 1978 amendments, did not intend the Immigration
and Nationality Act to apply to drilling rigs on the O uter Continental
Shelf.
John M . H arm on
Assistant A ttorney General
Office o f Legal Counsel
‘The fact that § 30 operates independently of the immigration laws is also supported by the
fact that § 30 appears to apply in some situations where the immigration laws would not.
Thus, § 30 directly covers “ any vessel, rig, platform , o r other vehicle or structure.” If the im­
migration laws were to apply, it would be only by incorporation through 43 U .S.C . § 1333(a)
(I), which, as noted, does not apply to “ vessels,” such as supply ships, but only to artificial
islands and installations and other devices “ permanently or temporarily attached to the
seabed.”
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