Appendix — United Ass'n of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry v. Reno

Supreme Court of the United States

OCTOBER TERM, 1995

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES

OF THE PLUMBING AND PIPE FITTING INDUSTRY, AFL-

CIO; and UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, AFL-CIO,

Petitioners,

V.

JANET RENO, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

JONATHAN P. HIATT STEPHEN P. BERZON

815 16th Street, N.W. (Counsel of Record)

Washington, D.C. 20006 MARSHA S. BERZON

JOHN T. DECARLO DANIEL T. PURTELL

500 South Virgil Avenue Scott A. KRONLAND

Fourth Floor 177 Post Street, Suite 300

Los Angeles, CA 90020 San Francisco, CA 94108

(415) 421-7151

BRIAN A. POWERS

4748 Wisconsin Avenue, N.W.

Washington, D.C. 20116

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

APPENDIX A Page

United States Court of Appeals for the District of

Columbia Circuit, Opinion, January 16, 1996 [re-

II 00 UIE EO occ aahs sh dcladpicinietnieomse la

APPENDIX B

United States District Court for the District of

Columbia, Memorandum Opinion, June 24, 1994

REL SIRES SS ES RONG ea OT SRE eee 24a

APPENDIX C

United States Court of Appeals for the District of

Columbia Circuit, Opinion, December 22, 1992

ipemorees 46 G61 F.Ba IBGG) ihc a. 38a

APPENDIX D

United States District Court for the District of

Columbia, Memorandum Opinion, August 7, 1991

[reported at 768 F.Supp. 375] -.................---..-..-.---. 50a

APPENDIX E

Outer Continental Shelf Lands Act of 1953, as

amended

ST ERR sR aaenk er eer i 65a

48 U.S.C. § 1882.............. LEE DREN Ue oot EET 65a

i 65a

aay a Re Se dae es SED 66a

APPENDIX F

Coast Guard Regulations

33 C.F.R. §§ 141.1-141.20 (1991)

APPENDIX G

Immigration and Nationality Act

Le BS RRS AEG SU rR RD epee oa ae 75a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 1995 Decided January 16, 1996

No. 94-5256

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES

OF THE PLUMBING AND PIPE FITTING INDUSTRY, AFL-

CIO, and UNITED BROTHERHOOD OF CARPENTERS AND

JOINERS OF AMERICA, AFL-CIO,

a APPELLANTS

JANET RENO, UNITED STATES ATTORNEY GENERAL,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(90cv02342)

Before: Epwarps, Chief Judge, WALD and RANDOLPH,

Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Chief Judge Epwarbs.

RANDOLPH, Circuit Judge: This case returns to us af-

ter proceedings on remand pursuant to our decision in

United Association of Journeymen y. Barr, 981 F.2d

1269 (D.C. Cir. 1992). As in the first appeal, the

principal question is whether aliens, operating from a

2a

foreign-owned derrick barge on the outer Continental

Shelf, may construct oil platforms for domestic companies

without complying with United States immigration laws.

I

Submerged lands on the outer Continental Shelf lying

three miles seaward of, and beyond, each State’s coast-

line generally “appertain” to the United States and hence

may be subjected to federal jurisdiction and control. 981

F.2d at 1270. In order to encourage the discovery and

development of oil reserves in the region, Congress en-

acted the Outer Continental Shelf Lands Act of 1953

(the OCSL Act), ch. 345, 67 Stat. 462 (codified as

amended, 43 U.S.C. § 1331 et seg.). In its original

form, § 1333(a)(1)—one of the provisions with which

we are concerned here—‘“extended’ the Constitution and

laws of the United States, “to all artificial islands and

fixed structures” erected for the development of natural

resources. § 4, 67 Stat. 462. In 1978 Congress amended

§ 1333(a)(1), deleting the phrase “fixed structures” and

replacing it with “all installations and other devices per-

manently or temporarily attached to the seabed.” OCSL

Act Amendments of 1978, Pub. L. No. 95-372, Staal

92 Stat. 629, 635.

The extent to which § 1331(a)(1), as amended, ren-

dered aliens working on the outer Continental Shelf sub-

ject to the Immigration and Nationality Act, 8 U.S.C.

§ 1101 et seg., might depend, we said in our first opinion,

on another provision of the OCSL Act also added in 1978

—43 US.C. § 1356, § 208, 92 Stat. 669. 981 F.2d at

1273-74. Section 1356 required the Coast Guard to issue

rules requiring that “any vessel, rig, platform, or other

vehicle or structure” used in regulated operations on the

outer Continental Shelf be “manned or crewed . . . by

citizens of the United States or aliens lawfully admitted

to the United States for permanent residence.” 43 U.S.C.

§ 1356(a) & (a)(3). To this nationality requirement,

alee

3a

§ 1356(c) made three exceptions pertinent to this case.

Americans would not have to man or crew any vessel,

rig, platform, or structure “over 50 percent of which is

owned by citizens of a foreign nation or with respect to

which the citizens of a foreign nation have the right

effectively to control.” 43 U.S.C. § 1356(c)(2). Nor

would American crews be necessary if “there are not a

sufficient number of citizens of the United States, or aliens

lawfully admitted to the United States for permanent

residence, qualified and available for such work” (43

U.S.C. § 1356(c)(1)(B)); or if “the President makes a

specific finding, with respect to the particular vessel, rig,

platform, or other vehicle or structure, that application

would not be consistent with the national interest.” 43

U.S.C. § 1356(c)(1)(B).

The events precipitating this lawsuit occurred in 1989,

when Heerema Marine Contractors, $.A., a Dutch-owned

Swiss company employing nonimmigrant aliens, performed

construction work for Exxon Company, U.S.A., on the

outer Continental Shelf off the coast of Santa Barbara,

California. Heerema installed platform “jackets”—that is,

pre-manufactured steel legs and infrastructure—to serve

as the foundations for two Exxon oil platforms. Heerema

transported the jackets to the outer Continental Shelf and

then secured them to the seabed, working from the

BALDER, a semisubmersible derrick barge owned by a

Heerema affiliate. The BALDER’s crew consisted of

aliens. Exxon owned the jackets, but Heerema had custody

and control of the jackets during the installation stage.

Two labor unions representing American construction

workers sued the Attorney General, the Secretary of State,

the Secretary of Transportation, the United States Coast

Guard, and the Immigration and Naturalization Service.

Citing § 1333(a)(1)-of the OCSL Act, as amended, the

unions claimed that the immigration laws barred alien

employees from installing oil platforms on the outer Con-

4a

tinental Shelf without first obtaining the appropriate immi-

gration visas.

Under the current version of the Immigration and

Nationality Act, a nonimmigrant alien may temporarily

enter the United States to perform construction work if

he possesses an H-2B visa. Before a consular officer may

issue an H-2B visa, the employer petitioning for the alien’s

admission must obtain “certification from the Secretary

of Labor stating that qualified workers in the United

States are not available and that the alien’s employment

will not adversely affect wages and working conditions of

similarly employed United States workers.” 8 C.F.R.

§ 214.2(h) (6) (iv) (1); see also 8 U.S.C. § 1101(a) (15)

(H) (ii) (b); Kooritzky v. Reich, 17 F.3d 1509 (D.C.

Cir. 1994).

In the first appeal we vacated the district court’s judg-

ment in favor of the unions. The court had ruled that the

immigration laws applied to the alien workers as a result

of § 1331(a), the general provision extending the laws

of the United States to the outer Continental Shelf. United

Ass'n of Journeymen v. Thornburgh, 768 F. Supp. 375

(D.D.C. 1991). We directed the court to determine—

in light of evidence regarding the construction of oil

platforms and in light of the Coast Guard’s interpreta-

tion of its regulations—whether the foreign ownership

exception in § 1356(c)(2) applied to vessels like the

BALDER. 981 F.2d at 1274. In a thorough and well-

reasoned opinion, the district court found that workers

on derrick barges engaged in installing oil platforms are,

under the Coast Guard’s regulations, manning and crew-

ing the foreign-owned vessel rather than the domestically-

owned platform, and therefore fall within the § 1356

(c)(2) exemption. The court further ruled that the im-

migration laws do “not govern non-immigrant alien con-

struction workers who are covered by the exceptions to

the manning and crewing requirements found in § 1356

5a

of the OCSL Act.” United Ass'n of Journeymen v. Reno,

Civ. Action No. 90-2342, slip op. at 27 (D.D.C. June 24,

1994).

Il

One of the principal issues raised in the first appeal

and decided on remand is no longer in controversy. The

unions do not now dispute what the district court identified

as the Coast Guard’s. “continuous and long-standing” view

—namely, that aliens such as those on the derrick barge

BALDER were manning and crewing the barge rather

than the oil platform, and were thus within the terms

of § 1356(c)(2). Slip op. at 21-23.

Although the issue is uncontested, it is important to

give a correct depiction of the facts relating to it. It is

not, for instance, accurate to say that all the work needed

to install an offshore oil platform is done on the platform

and that “there is no construction work being performed

on the barge” (Dissent at 2). For one thing crane oper-

ators and riggers remain on the barge throughout the in-

stallation phase. The district court so found. Slip op.

at 17. For another thing, considerable work must be done

before the oil platform is affixed to the ocean floor. That

work is necessarily done from the derrick barge. The

two main components of an oil platform are the “jacket”

or base and the deck sections of the platform. It is only

after the jacket is secured and the deck sections are

welded onto the jacket, that workers operate mainly from

the platform to complete the installation. Installation can

take as little as two weeks and as long as seven months.

The work may involve as many as 200 people engaged

in welding, rigging, piledriving, steamfitting, pipefitting,

painting, plumbing, and electrical work. During this final

phase, most of the workers sleep and eat on the barge

but perform no work there. -Jd. When installation is com-

plete, the workers are transported back to land by boat

6a

or helicopter’ and the barge departs with a skeleton

crew.

This method of operation did not, the district court

found, take the workers out of § 1356(c)(2). As used in

§ 1356(a)(3), “manned or crewed” refers—according to

the Coast Guard’s regulations (33 C.F.R. § 141.15(a))

—to the “regular complements of the unit.” There is

nothing “absurd” or “ridiculous” about the Coast Guard’s

view (Dissent at 1, 2) and, as we have said, it is un-

challenged on appeal. The “ ‘regular complement of the

unit’ means those personnel necessary for the routine func-

tioning of the unit.” 33 C.F.R. § 141.15(b). As a Coast

Guard Commander explained, construction workers on

derrick barges, “are engaged in the business of the vessel,

which is constructing offshore platforms; therefore, con-

struction workers would be the crew members or be part

of the complement of the vessel.” In statutory terms,

foreign-owned derrick barges are thus exempt from § 1356

(a)(3)’s requirement that any vessel, rig, platform or

structure used in regulated operations on the outer Con-

tinental Shelf be “manned or crewed . . . by citizens of

the United States or aliens lawfully admitted to the United

States for permanent residence.”

This brings us to the critical question: although foreign-

owned derrick barges and their workforces operating on

the outer Continental Shelf fit within the exception of

§ 1356(c)(2), and thus do not have to be manned or

crewed by American citizens or resident aliens, must the

aliens working on them nevertheless comply with the

1 This is doubtless why, despite the view of the Immigration and

Naturalization Service that the immigration laws do not apply on

the outer Continental Shelf, alien workers on the BALDER held

B-1 visas. This type of visa is available to a nonimmigrant alien

who is “visiting the United States tempurarily for business or

temporarily for pleasure.” 8 U.S.C. § 1101(a) (15) (B). (“Business”

does not include construction work. 8 C.F.R. § 214.2(b) (5).) See

United Ass’n of Journeymen v. Barr, 981 F.2d at 1272 n.2.

a al

7a

strict requirements of the Immigration and Nationality

Act?

Insisting that these workers must obtain visas, the

unions start from the premise that the OCSL Act’s original

extension of federal law to the outer Continental Shelf

rendered the Immigration and Nationality Act applicable

to aliens working from a derrick barge.’ Our dissenting

colleague embraces the same idea. Dissent at 3-4, 9.

Whether the 1953 version of the OCSL Act accomplished

as much is far from certain. We may be certain, how-

ever, that before 1978, the immigration laws were never

applied to workers on oil platforms on the outer Con-

tinental Shelf. This was apparently because the platforms

were not considered permanent, a condition some thought

necessary under the original § 1333(a)(1), which had ex-

tended federal law to “fixed structures.” See Memoran-

dum Opinion for the General Counsel, Immigration and

Naturalization Service, 3 Op. Off. Legal Counsel 362,

362-63 (1979). Given that view of the statute, it would

certainly have followed that derrick barges used tc build

the platforms were not covered either. And so a quarter

of a century after passage of the OCSL Act, the govern-

? Our first opinion explained why, in the absence of such an

extension, the immigrztion laws would not apply to the outer

Continental Shelf: nonimmigrant aliens arriving there would not

be entering the United States. 981 F.2d at 1271 n.1. “Entry” is a

term of art in the immigration laws. See, ¢.g., Rosenberg v. Fleuti,

374 U.S. 449 (1963) ; 1 CHARLES GORDON, ET AL., IMMIGRATION LAW

AND PROCEDURE § 11.01, at 11-1 (1995). The Immigration and

Nationality Act defines “entry” to mean “any coming of an alien

into the United States, from a foreign port or place... .” 8 U.S.C.

§ 1101(a) (13). “ ‘United States’... when used in a geographical

sense, means the continental United States, Alaska, Hawaii, Puerto

Rico, Guam, and the Virgin Islands of the United States.” 8 U.S.C.

§ 1101(a) (38). The term “continental United States” is defined as

follows: “Whenever the phrase ‘continental United States’ is used

in any law of the United States enacted after the date of enactment

of this Act [June 25, 1959], it shall mean the 49 States on the

North American Continent and the District of Columbia, unless

otherwise provided.” 1 U.S.C. §1 note.

8a

ment could report that “no attempt has ever been made

to enforce immigration laws on the Outer Continental

Shelf.” Oversight on the Outer Continental Shelf Lands

Act Amendments of 1978: Hearings Before the House

Select Comm. on the Outer Continental Shelf, 96th Cong.,

Ist Sess. 182 (1980) (testimony of Deputy General Coun-

sel Paul Schmidt, Immigration and Naturalization Serv-

ice), quoted in H.R. Rep. No. 1214, 96th Cong., 2d

Sess. 48 (1980).

The current § 1333(a)(1) is not as limited as the pre-

1978 version. As amended in 1978, the statute now

extends federal law to any installation or other device

permanently or temporarily attached to the seabed.* If

we looked only to § 1333(a)(1), the union’s case would

be a strong one.

The question therefore narrows to the effect of another

1978 amendment to the OCSL Act—the addition of

§ 1356, and particularly the foreign ownership provision

in § 1356(c)(2). The unions «deem this statute unim-

portant. They point out that the foreign ownership pro-

vision is not framed as an exception to the extension of

federal laws (including the immigration laws) to the

outer Continental Shelf. By its terms, § 1356(c)(2)

simply creates an exemption from § 1356(a)(3)’s require-

343 U.S.C. § 1833(a) now provides:

The Constitution and laws and civil and political jurisdiction of

the United States are hereby 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 produc-

ing resources therefrom, or any such installation or other

device (other than a ship or vessel) for the purpose of trans-

porting such resources, to the same extent as if the outer

Continental Shelf were an area of exclusive Federal jurisdic-

tion 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.

9a

ment that every “vessel, rig, platform, or other vehicle or

structure” have a crew consisting of citizens and resident

aliens. While a vessel like the BALDER may thereby

escape the manning and crewing strictures of § 1356

(a)(3), the unions believe its crew members would re-

main subject to the Immigration and Nationality Act,

about which § 1356 is silent.

The unions’ argument is plausible but not cogent and

we think the district court rightly rejected it. Section

1356 may be read as the unions read it, yet it may also

be read as the Justice Department and the State Depart-

ment have read it since its enactment nearly two decades

ago. To say that no vessel or structure may have a crew

of noncitizens or nonresident aliens unless it is foreign-

owned, is to say—or at least, to suggest, rather strongly

—that foreign-owned vessels and structures may have such

crews. Sixteen years ago, when the ink was scarcely dry

on the OCSL Act amendments, the Justice Department

carefully studied this issue at the request of the Immigra-

tion and Naturalization Service. The Justice Department

concluded that § 1356 is “a self-contained statement of

the extent to which principles of immigration control

are to be applied”: if the crew of a foreign-owned vessel

or structure need not consist of citizens or resident aliens,

the Immigration and Nationality Act imposes no further

restrictions. 3 Op. Off. Legal Counsel at 366. This

contemporaneous interpretation by the agency of govern-

ment responsible for administering the immigration laws

deserves considerable respect, not only because of the

Justice Department’s responsibilities and expertise, but

also because the reasons supporting its conclusion are

compelling. See, e.g., NationsBank of North Carolina,

N.A. v. Variable Annuity Life Ins. Co., 115 S. Ct. 810,

813 (1995); National Ass’n of Regulatory Util. Comm'rs

v. SEC, 63 F.3d 1123, 1126 (D.C. Cir. 1995).*

*The dissent finds “significant” several post-enactment state-

ments in a House committee report attesting to the personal

10a

Foremost among those reasons is that applying the

Immigration and Nationality Act despite § 1356 would

be treating that provision, and the exceptions written in

it, as nonsensical. Consider § 1356(c)(1)(A). This

states that if a contract in effect before September 1978

(the date of the amendments) required manning by aliens,

the vessel or structure could continue to be so manned.

The evident purpose was to “avoid any disruptions in

O[uter] C[ontinental] S[helf] activities.” H.R. REP No.

590, supra, at 176, 1978 U.S.C.C.A.N. at 1582; H.R.

ConF. REP. No. 1474, 96th Cong., 2d Sess. 124, re-

printed in 1978 U.S.C.C.A.N. 1674, 1723. Yet if one

accepted the unions’ position and the position of our

dissenting colleague, disruptions would have been inevi-

table: despite § 1356(c)(1)(A), the general immigration

law would have forced the owners of each vessel and

structure covered by such contracts to replace their crews

with American citizens and resident aliens (assuming

qualified domestic workers were available). The exemp-

tion granted in § 1356(c)(1)(A) would then, through

the interpretation of the unions and of the dissent, be

rendered essentially worthless.

The last clause of § 1356(c)(2) would also be drained

of meaning if we adopted the unions’ and the dissent’s

view. Whenever a foreign government imposes its own

opinions of the committee’s chairman about what he believed the

1978 amendments had accomplished. Dissent at 7-8. It is bad

enough to interpret a statute on the basis of what a later Congress

says about it. See United States v. Price, 361 U.S. 304, 318 (1960).

It is far worse to rely on the views—not of a later Congress—but

of a few members of a later Congress. During this committee’s

oversight hearing, a Justice Department representative, confronted

with statements similar to those contained in the dissent, gave the

proper response. The statements merely serve, he said, as “an

example of why you really cannot use the personal and anecdotal

experience of someone in the legislative process as part of statutory

interpretation.” Oversight on the Outer Continental Shelf Lands

Act Amendments of 1978, supra, at 177 (testimony of Jack M.

Goldklang).

lla

national manning requirements for the development of its

offshore oil and gas, § 1356(c)(2) permits the President

to respond by revoking the exemption for vessels and

structures owned by citizens of that foreign nation. But

if the unions and the dissent were right, the President’s

removal of the exemption would amount to an empty

gesture: for all practical purposes, the Immigration and

Nationality Act already would have forced the foreign

owners to employ American crews on their vessels and

structures. Much the same may be said of § 1356(c)

(1)(C), which allows the President to exempt even

American-owned vessels and structures from the manning

and crewing requirement if this would be in the national

interest. Through these provisions and through § 1356

in general, Congress sought to “reconcile the dual con-

cerns of providing the fullest employment for Americans

in U.S. [O]uter [C]ontinental [S]helf activities and elim-

inating to the fullest possible extent the likelihood of

retaliation by foreign nations against American workers

in foreign offshore activities.” H.R. CoNnr. Rep. No.

1474, supra, at 123, 1978 U.S.C.C.A.N. at 1722. The

district court put the point succinctly: “If alien workers

on the O[uter] C[ontinental] S[helf] were subject to both

§ 1356 and the [Immigration and Nationality Act], the

scales would invariably tip in favor of the first concern,

thereby disrupting the balance of interests Congress hoped

to create.” Slip op. at 27.

This conclusion gains further support from § 1356

(c)(1)(B), a provision exempting units from the man-

ning and crewing requirements when there are insufficient

citizens and permanent residents qualified and available

to perform the necessary work. The conference report

observed, correctly, that this exception incorporates “vir-

tually the present standard of the immigration law.” H.R.

ConFf. Rep. No. 1474, supra, at 124, 1978 U.S.C.C.A.N.

at 1723. “Implicit in that statement, however, appear[s]

to be the assumption that an exception, independent of

12a

the immigration laws, is being created.” 3 Op. Off. Legal

Counsel at 367.

It is true that the union’s interpretation would not

deprive § 1356 of all meaning: § 1356 would still operate

with respect to free floating vessels, which are not covered

by § 1333(a)(1) (it extends federal law to the seabed

and artificial islands and installations permanently or tem-

porarily attached to the seabed). But that is not exactly

a point in the unions’ favor. To say that § 1356 would

have some residual effect in one limited area, is to admit

that the statute is being stripped of any effect everywhere

else. Section 1356 applies to “any . . . rig, platform, or

other . . . structure,” not just to “vessels.” If, as the

unions suppose, the immigration laws govern the use of

nonimmigrant workers on the outer Continental Shelf

despite § 1356, then Congress acted nonsensically in sub-

jecting such installations and anchored vessels to the reg-

ulatory system, and the exceptions, set forth in § 1356. It

is, in short, not enough that the union’s position allows

one portion of § 1356(c)(2) to survive, the portion, that

is, dealing with free-floating vessels. The statute should

be read so that all of it has effect—so that, in other words,

the exemption for foreign-owned derrick barges is mean-

ingful. See, e.g., Gustafson v. Alloyd Co., 115 S. Ct.

1061, 1069 (1995); Railway Labor Executives’ Ass’n v.

National Mediation Bd., 29 F.3d 655, 665 (D.C. Cir.)

(in banc), amended, 38 F.3d 1224 (D.C. Cir. 1994),

cert. denied, 115 S. Ct. 1392 (1995); Abourezk vy.

Reagan, 785 F.2d 1043, 1054 (D.C. Cir. 1986), aff'd

by an equally divided court, 484 U.S. 1 (1987).

It is not accurate to describe, as the unions do, the

district court’s reading of the OCSL Act as a partial

repeal of § 1333(a)(1). See Morton v. Mancari, 417

U.S. 535, 549 (1974). Section 1356 and the amendment

to § 1333(a)(1) were enacted simultaneously. The dis-

trict court thus had to reconcile two seemingly incon-

13a

sistent provisions in the same legislation; the court was

not determining whether one provision “repealed” the

other. Furthermore, § 1333(a)(1) is written in general

terms. It does not expressly refer to nonimmigrant work-

ers or to the immigration laws. In contrast, § 1356 lays

out a detailed system governing who may work on vessels

and structures conducting regulated activities on the outer

Continental Shelf, a system drawing distinctions between

citizens and resident aliens and other workers and vesting

discretion in the President to restrict or relax § 1356's

rules on the composition of the workforce. The canon of

statutory construction dictating that specific statutory

provisions govern general ones would therefore lead us to

favor § 1356 over § 1331(a)(1). See, e.g., Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 384 (1992);

Techniarts Eng’g vy. United States, 51 F.3d 301, 304

(D.C. Cir. 1995). The Supreme Court has instructed

that if “there is no clear intention otherwise, a specific

statute will not be controlled or nullified by a general one,

regardless of the priority of enactment.” See, e.g., Craw-

ford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445

(1987) (internal quotations omitted). No such clear in-

tention emerges here.

Because we agree with the district court that the Immi-

gration and Nationality Act does not apply to those who

are manning or crewing foreign-owned derrick barges

qualifying for the exemption set forth in § 1356(c)(2),°

the judgment is affirmed.

5 Citing Montana v. United States, 440 U:S. 147, 154 (1978), and

United Ass’n of Journeymen, Local 342 v. Valley Eng’rs, 975 F.2d

611, 615 (9th Cir. 1992), the government claims that Piledrivers’

Local Union No. 2875 v. Smith, 695 F.2d 390, 393 (9th Cir. 1982) —

which decided the same legal issues as those raised here—collater-

ally estops the unions even though the unions were not named as

parties. Because our decision on the merits is the same as that in

Piledrivers’, we do not express any view on the preclusive effect of

the Ninth Circuit’s ruling.

l4a

Epwarps, Chief Judge, dissenting: The Outer Con-

tinental Shelf Lands Act (“OCSLA”), first enacted in

1953, explictly applies federal law to all structures per-

manently or temporarily attached to the seabed of the

Outer Continental Shelf (“OCS”). 43 U.S.C. § 1333(a)

(1) (1988). Thus, for purposes of federal immigration

law, stepping onto an oil platform on the OCS should be

no different from stepping ashore at any harbor on the

mainland: having set foot in United States territory, all

aliens become subject to United States immigration re-

strictions.

In defiance of the plain terms of the statute, the major-

ity holds that foreign workers who are on the OCS to

construct a domestically-owned oil platform are nonethe-

less exempt from United States immigration restrictions if,

under a Coast Guard regulation, they are found to “man

or crew” a foreign-owned vessel that provides them tempo-

rary quarters while they complete the construction project.

However, neither the statute nor good reason explains

why workers constructing a domestically-owned oil plat-

form on the OCS should be exempt from our nation’s im-

migration laws simply because they happen to sleep on a

foreign-owned barge anchored nearby. Indeed, such a

result turns section 1356 of OCSLA, which requires that

all OCS units be manned and crewed by United States

citizens or permanent resident aliens, on its head. Instead

of offering additional protection for American workers on

the OCS, the provision has now been transformed into

an enormous loophole by which United States corpora-

tions can employ foreign workers despite the ready avail-

ability of domestic labor. Because I find that today’s

decision perverts both the explicit language of section

1356 and the congressional intent behind the manning

and crewing requirements, I dissent.

* * * *

As an initial matter, it is worth noting that the Coast

Guard’s definition of the manning and crewing require-

15a

ments is both absurd and contrary to the statute. Accord-

ing to the Coast Guard, even though the workers in ques-

tion perform all of their construction work on the oil plat-

form itself, they are nevertheless deemed to man and crew

the derrick barge on which they eat and sleep. See United

Ass’n of Journeymen v. Reno, Civ. Action No. 90-2342,

slip op. at 5 (D.D.C. June 24, 1994), reprinted in Joint

Appendix 16. Yet, it is undisputed that there is no con-

struction work being performed on the barge. Under the

Coast Guard’s interpretation, then, had the workers pad-

died out to the platform in an inflatable raft that also

carried their food and a sleeping bag, they would be

manning and crewing the raft (rather than the oil plat-

form) for purposes of section 1356. This interpretation

of the statute is nonsensical and therefore not entitled to

this court’s deference. The manning and crewing require-

ments were obviously designed to apply to the place where

the workers work, not where they eat and sleep. Thus,

there is no reason that the section 1356(c)(2) exemption

regarding crew members on foreign-owned units should

be relevant to the workers in this case because it is un-

disputed that the platform (as opposed to the barge) is

not foreign-owned.

Moreover, even if one were to accept the Coast Guard’s

view that the workers should be considered part of the

regular complement of the derrick barge, such a deter-

mination tells nothing more than who is “manning and

crewing” a particular unit for purposes of section 1356.

It does not address who is working in the United States

pursuant to the Immigration and Nationality Act

(“INA”), as applicable to the OCS under section 1333.

There is no dispute that the oil platform is subject to the

INA. Thus, even if these foreign workers are exempt

from the INA while they float around on the barge, they

essentially enter the United States every single day to

come to work on the oil platform. The construction work-

ers should therefore be treated no differently from any

other crew memmber of a foreign ship who disembarks at

16a

a United States harbor and enters the country. It would

be ridiculous to say that, merely because such foreign

workers man and crew a foreign-owned vessel, they are

somehow exempt from this country’s immigration laws

while they are within United States borders.

Yet, the majority asserts not only that the workers

should be deemed to man and crew the derrick barge even

while working on the oil platform, but also that the ex-

emption from manning and crewing requirements found in

section 1356(c)(2) overrides all the regulations of the

INA. This argument makes no sense.

* * * *

It is undisputed that section 1333 of OCSLA explictly

applies all United States law, including the INA, to the

OCS. Under the INA, nonimmigrant aliens, who generally

consist of those seeking entry into the United States on a

temporary basis, may qualify for visas only if they meet

certain statutory criteria. See 8 U.S.C. § 1101(a)(15)

(1994).

Nothing about section 1356 of the OCSLA amend-

ments of 1978 evinces an intent to alter the INA’s general

application to the OCS, and neither the INA nor section

1333 is even mentioned in section 1356. Rather, section

1356(a) adds new manning and crewing requirements

that restrict employment on the OCS to either United

States citizens or permanent resident aliens. 43 U.S.C.

§ 1356(a) (1988). The effect of this provision is to pre-

vent those nonimmigrant aliens who could receive visas

under the INA from manning or crewing a vessel, rig, or

fixed structure on the OCS. Thus, section 1356(a) is best

read not as a replacement to the INA, but as a further

restriction on employment of foreign workers on the OCS.

Indeed, even with the provisions of the INA in effect, the

Committee that originally drafted the manning and crew-

ing requirements reported that it “was concerned .. . that

foreign workers on the U.S. Outer Continental Shelf have

17a

been increasing in recent years.” H.R. Rep. No. 590,

95th Cong., Ist Sess. 175 (1977).

Because section 1356(a), on its own, sweeps broadly

and requires anyone operating on the OCS to hire only

United States citizens or yermanent resident aliens, it is

not surprising that Congress carved out some exceptions,

including the one for foreign ownership. 43 U.S.C.

§ 1356(c)(2). However, the plain language of section

1356(c) indicates that its exceptions were intended only

as exemptions to the strict manning and crewing regula-

tions issued under subsection (a), and not to the general

application of the INA. Indeed, Congress could hardly

have been more clear in its intent. Section 1356(c) is

entitled, “Exceptions from manning requirements,” and ex-

plicitly provides that, if any of the enumerated exceptions

are applicable, “[t]he regulations under subsection (a)(3)

of this section shall not apply.” 43 U.S.C. § 1356(c)

(emphasis added). As the Supreme Court has stated,

where, as here, the statutory language is plain, “ ‘the sole

function of the courts is to enforce it according to its

terms.’” United States v. Ron Pair Enters., 489 U.S.

235, 241 (1989) (quoting Caminetti v. United States,

242 U.S. 470, 485 (1917)). Instead, the majority, with-

out any textual justification whatsoever, finds in section

1356(c) an implicit exemption, not only to the manning

requirements, but to the INA as well.

The only way the majority can justify this strained read-

ing of the clear language of the statute is to find that

section 1356 and the INA are “mutually repugnant” and

cannot logically coexist. However, although these pro-

visions overlap in some respects, there are also significant

areas in which they do not. Moreover, there is nothing to

indicate that Congress intended that section 1356 would

replace the INA with regard to employment on the OCS.

Indeed, the legislative history of the 1978 amendments

suggests that section 1356 was actually designed to close

certain regulatory gaps that existed despite application of

the INA to the OCS.

18a

In certain situations, section 1356 applies when the

INA does not. One such example is the regulation of free-

floating vessels. Prior to the 1978 amendments, if a

domestically-owned barge were performing work on the

OCS, it could hire an all-foreign crew because the INA

applies only to structures attached to the seabed, and not

to vessels. Section 1356 remedies this absence of regula-

tion by requiring that such a barge be manned and crewed

by United States citizens or permanent resident aliens. If

the barge were sold to a foreign-owned company, the

exemption found in section 1356(c)(2) would then

apply, and the barge would again face no labor restric-

tions.

Thus, section 1356 functions as an important supple-

ment to the INA, rather than a replacement. Indeed, the

legislative history indicates that section 1356 was, from

the very beginning, an attempt to remedy the fact that

free-floating vessels were not subject to any of the pro-

visions of the INA that are designed to protect domestic

jobs. At congressional hearings regarding the OCSLA

amendments, the Seafarers International Union first pro-

posed the manning and crewing requirements in order to

fill the “major regulatory gap” that existed because the

INA did not apply to free-floating vessels. Outer Con-

tinental Shelf Lands Act Amendments of 1977: Hearings

on H.R. 1614 Before the House Ad Hoc Select Committee

On the Outer Continental Shelf, 95th Cong., Ist Sess.

1258 (1977). In its statement, the union noted that

[cJurrent U.S. law does not prevent foreign-flag and

foreign crewed drilling rigs from operating on the

U.S. Outer Continental Shelf. As a result, increasing

numbers of aliens are being employed for extended

periods in our OCS areas. In view of the large avail-

able pool of skilled U.S. construction and drilling

trades and related service workers, we feel that the

use of any foreign crews on these rigs is totally un-

necessary.

19a

Id. at 1302. According to the union, because the laws

that were then applicable to the OCS did not prevent

such foreign crews, further congressional action was neces-

sary. See generally id. at 1258-1307.

The majority points out that section 1356 refers to

fixed structures as well as free-floating vessels on the

OCS. Because there is no question that the INA also

applies to fixed structures, the question becomes whether

both provisions can logically apply to one area. For ex-

ample, a domestically-owned platform must be manned

and crewed by United States citizens or permanent resi-

dent aliens pursuant to section 1356, but the platform

(because it is attached to the seabed) is also subject to

the INA’s provision that nonimmigrant alien workers ap-

plying for so-called “H-2B” visas cannot enter the country

if American workers are available. See 8 U.S.C. § 1101

(a)(15)(H)(i1)(b). In such a situation, the two pro-

visions are duplicative. The majority stops there, assum-

ing, solely because there is some overlap, that section

1356 must therefore be read to replace the INA alto-

gether.

However, H-2B visas are not the only visas available

to nonimmigrant aliens seeking to work on the OCS. The

INA offers many other visa categories, and none of the

other ways in which one can enter the country are subject

to the labor-protecting provisions applicable to H-2B

visas.. See 8 U.S.C. § 1101(a)(15). Thus, prior to the

1 Indeed, these non-H-2B visa categories could well include

significant numbers of technical, executive, and managerial employ-

ees who are part of the regular complement of units operating

on the OCS. For example, the INA permits entry into the

United States of nonimmigrants engaged in certain “specialty oc-

cupations” requiring at least a bachelor’s degree, 8 U.S.C.

§ 1101 (a) (15) (H) (i) (b), as well as nonimmigrants who have been

employed outside the United States and then seek to enter the

country temporarily in order to continue to render services to the

same employer “in a capacity that is managerial, executive, or

involves specialized knowledge,” 8 U.S.C. § 1101(a) (15) (L).

20a

1978 amendments, a foreign citizen who could qualify for

entrance into the United States under any visa provision

other than H-2B would have been free to work on a

domestically-owned oil platform in the OCS regardless of

the availability of United States labor. After the passage

of section 1356, the owners of such an oil platform would

be forced to hire only domestic labor despite the fact

that they were not forced to do so under the INA. And

again, if the platform were sold to a foreign-owned cor-

poration, the 1356(c)(2) exemption would then apply,

and the new owners would again be free to employ any

non-H-2B aliens they wished. Thus, even on fixed struc-

tures, the two provisions can both be meaningfully en-

forced according to their terms.’

It is also implausible for the majority to assért that the

manning and crewing requirements and their exceptions

supplant the INA, because the INA is a broad statute

that regulates all types of alien entry into the United

States, whereas section 1356 only addresses the question

of employment while in the country. Following the logic

of the majority’s view, workers falling under section

1356(c)(2)’s exception are subject to no immigration

restrictions at all. For example, the INA provides that

aliens who have communicable diseases, who have Seen

convicted of a crime, or who have engaged in terrorist

activity are inelligible to receive visas. See 8 U.S.C.

§ 1182(a). Surely it cannot be that Congress meant to

foreclose the Immigration and Naturalization Service from

2 The majority argues that applying the INA along with section

1356 to the OCS is nonsensical because section 1356(c) (1) (A)

permits aliens employed under contracts entered into prior to the

effective date of the statute to remain on the OCS. According to

the majority, such a provision would be useless if the provisions of

the INA could be applied to exclude those same aliens. But this

argument ignores all those aliens who might be employed on the

OCS under visas other than H-2B visas. For those aliens, the

“grandfathering” provision would have the important consequence

of allowing them to remain on the OCS even though section 1356

would, for the first time, forbid their presence.

2la

regulating the presence of known terrorists who are work-

ing in United States territory merely because those ter-

rorists have been deemed to “man and crew” a foreign

vessel.°

Finally, it is significant, I think, that the very same

committee that drafted the 1978 amendments subse-

quently rejected the reading of section 1356 that the

majority adopts today. While post-enactment pronounce-

ments are ordinarily not dispositive regarding congres-

sional intent, see, e.g., Cipollone v. Liggett Group, Inc.,

505 U.S. 504, 520 (1992), in this case, the Select Com-

mittee on the Outer Continental Shelf was specifically

charged with overseeing and evaluating the Government's

implementation of the new statutory provisions. H.R.

Rep. No. 1214, 96th Cong., 2d Sess. iii (1980). In its

final oversight report, issued in 1980, the Committee,

in no uncertain terms, flatly rejected the Government’s

position regarding section 1356, calling it “a blatant ex-

ample of misinterpretation of the OCS Act on the part

of an executive branch agency.” Jd. at 98. Further, the

Report notes that “[Committee} Chairman John®M. Mur-

phy, who was intimately involved in negotiating the Sec-

tion [1356] language in the OCS conference Committee

disagrees with [the government’s position], and views

Section [1356] as a supplement to rather than a replace-

ment of the provisions [of the INA].” /d. at 68. The

report also quotes Chairman Murphy directly:

8 The majority also points to a clause in section 1356(c) (2) that

permits the President to revoke the exemption for foreign-owned

units whenever a foreign government imposes its own national

manning requirements to its offshore oil and gas operations. Ac-

cording to the majority, such an action would be an “empty gesture”

if the INA already forced foreign owners to employ American

crews. However, as described supra, the INA would not apply to

workers on free-floating vessels, nor would it restrict workers who

had entered the United States under visas other than H-2B visas.

Therefore, there is no reason to assume that presidential action

under section 1356(c) (2) would be devoid of practical] effect.

22a

As Chairman of both the House-Senate Conference

and the House Select Committee on the OCS, I am

quite familiar with the language . . . and I can em-

phatically state Congressional intent in this instance.

Federal law is to be applicable to all activities

on all devices in contact with the seabed for explora-

tion, development and production.

Id. (internal quotation omitted).

Although this report, in and of itself, would not be

enough to overturn clear statutory language to the con-

trary, it further supports the view that, in this case, the

most obvious reading of the statute is, in fact, the read-

ing Congress intended. Cf. Cannon v. University of

Chicago, 441 U.S. 677, 687 n.7 (1979) (“Although we

cannot accord [post-enactment] remarks the weight of

contemporary legislative history, we would be remiss if

we ignored these authoritative expressions concerning the

scope and purpose of [the statute]. . . .”). Given that

section 1356 and the INA can both be enforced accord-

ing to their terms without any mutual repugnancy, there

is absolutely no justification for the majority to overturn

the plain language of the statute and the clearly ex-

pressed legislative intent of Congress.*

* * * *

* The Government also claims in its brief that the two appellant

unions are precluded from litigating the statutory construction issue

in this case because of a previous Ninth Circuit decision rendered

against a local affiliate union. See Piledrivers’ Local Union No.

2375 v. Smith, 695 F.2d 390 (9th Cir. 1982). Because issue preclu-

sion cannot be applied against a litigant who was not a party to the

prior adjudication, see 18 CHARLES A. WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 4449 (1981), the Government argues

that the United Brotherhood of Carpenters and Joiners, as the

parent of the piledrivers’ local, effectively controlled the first litga-

tion and is therefore precluded from relitigating the issue under the

Supreme Court’s decision in Montana v. United States, 440 U.S.

147 (1979). See id. at 154-55 (The Court ruled that if a party were

“the laboring oar” in a previous litigation, even if not a named

party, preclusion is appropriate.). Although I am unconvinced that

23a

The bottom line is that, by first enacting section 1333

(a)(1) in 1953, Congress made a clear policy choice

to extend all federal law, including the INA, to the

OCS. There is absolutely no indication that, in enacting

section 1356 some 25 years later, Congress silently re-

versed that choice. As a result of the majority’s errone-

ous interpretation, United States workers will lose job

opportunities on the OCS, the very harm Congress sought

to prevent by enacting section 1356. Domestic corpora-

tions wishing to construct oil platforms can now entirely

avoid the labor-protecting provisions of the INA simply

by using foreign-owned derrick barges to shelter the work-

ers while they sleep. Because such a result makes a

mockery of both the plain language of the statute and

the congressional intent behind it, I dissent.

the mere parent/affiliate relationship, by itself, is sufficient to show

that the parent union controlled the litigation and should be pre-

cluded, that question is irrelevant because it is undisputed that the

other union appellant in this case, the Association of Journeymen

and Apprentices of the Plumbing and Pipefitting Industry, has no

affiliation with the local union plaintiff in Piledrivers’. Thus, even

under the Government’s theory, this union would not be precluded

from bringing the present clair.

24a

APPENDIX B

[Filed Jun. 24, 1994]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 90-2342 (TAF)

UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES

OF THE PLUMBING & PIPE FITTING INDUSTRY, ef al.,

Plaintiffs,

Vv.

JANET RENO, et al.,

Defendants.

MEMORANDUM OPINION

This matter comes before the Court on cross motions

for summary judgment filed by the parties in this case.

After consideration of said motions, all responsive memo-

randa thereto, and the entire record herein, and after

hearing the argument of counsel in open court on May

13, 1994, the Court for the reasons stated herein will

grant the defendants’ motion and deny the plaintiffs’

motion.

I. INTRODUCTION

The central issue in this case is whether non-immigrant

alien workers are subject to the visa requirements of the

Immigration and Nationality Act, (“INA”) 8 U.S.C.

§ 1101 et seqg., when performing oil platform construction

work on the Outer Continental Shelf (“OCS”). Plain-

tiffs, the United Association of Journeymen and Appren-

tices of the Plumbing and Pipefitting Industry, AFL-CIO

and the United Brotherhood of Carpenters and Joiners

ENON IN NNN EseNaerer Seer

25a

of America, AFL-CIO, contend that these workers are so

subject. The Defendants, the Attorney General of the

United States, the Immigration and Naturalization Service

(“INS”), the Secretary of State, the Secretary of Trans-

portation and the United States Coast Guard, argue that

they are not.

... an earlier ruling granting summary judgment in

favor of the plaintiffs on this issue, the Court found that

the INA, like all federal law, extends to the subsoil and

seabed of the outer Continental Shelf under § 1333(a)

(1) of the Outer Continental Shelf Lands Act of 1953

(“OCSL Act”). United Ass'n of Journeymen v. Thorn-

burgh, 768 F.Supp. 375, 380 (D.D.C. 1991). That rul-

ing went to the Court of Appeals, which in turn re-

manded the case after finding that a factual record needed

to be developed on the question of whether § 1356 of the

OCSL Act applied to the construction work done by the

alien workers at issue here. United Ass’n of Journeymen

v. Barr, 981 F.2d 1269, 1273-1275. The Court of Ap-

peals reasoned that if the section did apply, the issue in

this case would not be whether the immigration laws ap-

ply generally to the OCS, but whether aliens who fell

within this section “were exempted from the immigration

laws even if these laws otherwise applied”. Jd. at 1273.

Section 1356(a)(3), which is a 1978 amendment to

the 1953 OCSL Act, directs the Coast Guard to issue

rules requiring that “any vessel, rig, platform, or other

vehicle or structure” used in regulated operations on the

OCS be “manned or crewed . . . by citizens of the United

States or aliens lawfully admitted to the United States

for permanent residence”. 42 U.S.C. § 1356(a) & (a)

(3); Barr, 981 F.2d at 1273. Section 1356(c) contains

a number of exceptions to this requirement, one of them

being for any vessel or structure “over 50 percent of

which is owned by citizens of a foreign nation or with

respect to which the citizens of a foreign nation have the

right effectively to control”. 43 U.S.C. § 1356(c)(2);

26a

981 F.2d at 1273. It is undisputed in this case that if

the manning and crewing requirements of § 1356(a) (3)

apply to the alien workers, so does this exception.

The Coast Guard regulations which grew out of § 1356

(a)(3) describe “manning and crewing” as referring to

the “regular complement of a unit”, which in turn “means

those personnel necessary for the routine functioning of

the unit”. 33 C.F.R. § 141.15(a) & (b). In its earlier

ruling this Court found § 1356(a)(3) inapplicable based

upon the fact that the alien workers at issue were “not

employees necessary for the routine functioning” of the

oil production facilities they helped construct. United

Ass'n of Journeymen v. Thornburgh, 768 F.Supp. 375,

381 (D.D.C. 1991). On appeal the Circuit Court as-

sumed this to be true, but raised the issue of wheher

these workers “could nevertheless be considered within

§ 1356 because they are manning the crane ship’ from

which they conduct their operations?”. 981 F.2d at 1273.

The Court of Appeals raised two sets of question it in-

dicated needed to be answered before this issue could

be determined. It first inquired into how the Coast

Guard interprets its own regulations in regard to con-

struction workers on the OCS. It noted that in the pre-

amble to these regulations, the Coast Guard referenced a

comment suggesting that “construction workers building

a platform be considered part of the regular complement

of the construction barge from which they work, if that

vessel’s primary purpose is construction, fabrication, or

alteration of structures attached to the Outer Continental

Shelf.” It also pointed out that the Coast Guard re-

sponded to this comment by stating that “the language of

141.15”, the regulation in question, “already permits such

a conclusion and no change has been made”. 47 Fed.

Reg. 9366, 9370 (1982); 981 F.2d at 1274.

1The term used by the parties in the case on remand is not

“erane ship” but “derrick barge”. The Court will use the latter

term in this memorandum.

27a

The Court of Appeals then stated:

It may be that the explanation in the Federal Reg-

ister, although framed in terms of what would be

a permissible reading of a regulation, reflects the

Coast Guard’s interpretation that section 1356(c)’s

exemption for foreign-owned vessels and structures

applies to construction workers engaged in the build-

ing of platforms on the outer Continental Shelf. But

we remain uncertain whether, in general, the Coast

Guard adheres to this position and, if so, why.

981 F.2d 1274.

The second set of questions the Court of Appeals

mentioned regarded the actual type of work which was

performed by the alien workers. Specifically, it wanted

to know how the oil platforms were erected; the extent

to which the workers moved back and forth from the

ship to the structure while they were installing the

jackets;* and what type of work was involved after the

jackets were in place. Id. at 1274.

On remand, the defendants have presented the position

of the Coast Guard principally through the December 8,

1993 deposition testimony of Michael P. De Cesare, a

commander in the Coast Guard in charge of the Vessel

Manning Branch, Coast Guard Headquarters, Washing-

ton, D.C. In the deposition, De Cesare made clear that

the preamble does in fact express the Coast Guard’s in-

terpretation of its regulations as they relate to the workers

at issue here:

[I]n the preamble to the regulations, the issue of

construction workers was specifically addressed and

the conclusion was that construction workers aboard

vessels principally involved in the construction of

offshore platforms are a part of the regular comple-

ment of the vessel.

2 The “jackets” are premanufactured steel legs and infrastruc-

ture used to serve as foundations for the oil platforms.

28a

De Cesare dep. at p. 29, 11. 15-19. He also explained

the reasoning behind this conclusion by stating that be-

cause these construction workers “are engaged in the busi-

ness of the vessel, which is constructing offshore plat-

forms”, they would be considered “the crew members

or part of the complement of that vessel”. De Cesare

dep. at p. 22, 11. 7-11; see also 33 C.R.R. section

141.15(b). Defendants argue that Commander De .

Cesare’s interpretation deserves deference under Chevron

U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984).

Plaintiffs, on the other hand, have on remand focused

upon the nature of the work the aliens actually do on the

outer Continental Shelf. In that regard, they have sub-

mitted the affidavits of Joel Harzan and James Lee Helms,

who together have a combined experience of over thirty

years of work on offshore oil platforms. These affidavits

state that virtually all of the construction work involved

in installing an oil platform occurs on the platform it-

self, after the jacket has been set on the ocean floor.

During the installation process, construction workers

sleep and eat on the derrick barge but, aside from crane

operators and a few riggers, perform no work on that

barge. Moreover, these affidavits indicate that construc-

tion workers are not treated as “crew” of derrick barges

for documentation purposes.

Plaintiffs cite these facts and argue that the construc-

tion workers cannot “man” or “crew” vessels they do

not even work upon. They argue alternatively that, even

if these workers could be considered part of the regular

complement of the derrick barges when they are on them,

that doesn’t mean § 1356 should apply in regard to the

work they perform on the platform itself.

The parties have also raised the issue of whether, as-

suming the alien workers are covered by § 1356(c)(2),

they should still be subject to the visa requirements of the

INA. Plaintiffs argue that the plain language of the ex-

ceptions to § 1356(a)(3) show they apply only to the

29a

manning and crewing requirements themselves. They ar-

gue that the Court should not read an additional excep-

tion regarding the provisions of the INA into this sec-

tion when none exists within the language of the pro-

vision. Defendants argue that this Court is precluded

from determining this question under the doctrine of is-

sue preclusion. They state that the Ninth Circuit in

Piledrivers’ Local Union No. 2375 v. Smith, 695 F.2d

390 (9th.Cir. 1982) has already found that the INA is

modified by § 1356, and argue that this Court is bound

by that decision. They also argue that if the Court is

not so bound, it should nevertheless reach the same con-

clusion as the Piledrivers’ Court.*

II. DISCUSSION

A. The Applicability of § 1356 to the Alien Construc-

tion Workers

The deference due an agency’s interpretation of its own

regulations “exceeds even the deference (due) to ‘an

agency’s construction of a federal statute that it adminis-

ters’. United States of America v. Shaw, No. 93-3193

slip op. at 6 (D.C.Cir. 1994) (quoting Stinson v. United

States, 113 S.Ct. 1913, 1918 (1993)) (parenthesis

added). If the interpretation “does not violate the Con-

stitution or a federal statute, it must be given ‘controlling

weight unless it is plainly erroneous or inconsistent with

the regulations’”. Stinson, 113 S.Ct. at 1919 (quoting

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414

(1945)).

3 Defendants have also raised an issue regarding the Court’s

power to issue plaintiffs’ proposed order, which seeks to have the

Court order defendants to determine or redetermine the proper

visa classifications of all aliens who are engaged in construction

work or other temporary work on the OCS and revoke all B-1

visas granted in violation. of the INA. The Court need not ad-

dress this issue because, as noted, supra, it denies plaintiffs’ mo-

tion for summary judgment in toto, and will therefore have no

occasion to enter such an order.

30a

Plaintiffs do not argue that Commander De Cesare’s

interpretation of the Coast Guard’s manning and crewing

regulations violates any of these principles. Rather, they

argue that his deposition testimony is not sufficient in and

of itself to constitute the official position of the Coast

Guard. In this regard they point to the case of Caiola v.

Carroll, 851 F.2d 395 (D.C.Cir. 1988), in which the

Court of Appeals gave a “modicum of respect” but not

“dispositive weight” to a decision reached by a debarring

official for the Defense Logistics Agency (DLA), an

agency of the Department of Defense (DOD), in a de-

barment case that had come before the official. Caiola,

851 F.2d at 399.*

_ Caiola, though, involved one agency official’s interpre-

tation of a regulation in a specific case under a specific

set of facts. Commander De Cesare, on the other hand,

did something much different than simply express his opin-

ion on how § 1356(a)(3) of the OCSL Act should be

applied to construction workers involved in the building

of offshore oil platforms. He confirmed for the record,

as the Court of Appeals had suspected, that the discussion

of this issue found in the preamble to the manning and

crewing regulations does in fact reflect the Coast Guard’s

4“Debarment” is an administrative action which excludes non-

responsible contractors from government contracting. The Federal

Acquisition Regulation (FAR), codified at 48 C.F.R. Chapter 1,

authorizes a debarring official, when it is “in the public interest’,

to “debar a contractor for any of the causes in 9.406-2 (of the

FAR), using the procedures in 9.406-3”. 48 C.F.R. 9.406-1(a) ;

Caiola, 851 F.2d at 397. In Caiola, the plaintiffs were officers of

Murdock Webbing, a Rhode Island corporation which manufactured

military supplies for the federal government. Both Murdock and

plaintiffs were debarred from further government work after it was

discovered that Murdock had illegally fabricated certain test re-

sults regarding the equipment it manufactured. The issue in

Caiola regarded the propriety of the debarring official’s finding

that plaintiffs had “reason to know”, within the meaning of FAR

9.406-5(b), of Murdock’s illegal conduct. Jd. at 396-397.

3la

official position on the subject. See Barr, 981 F.2d at

1274.°

Moreover, an April 3, 1989 State Department Cable

submitted by defendants states:

Department (of State) has received further clarifica-

tion from the Coast Guard on this matter. State ref

(previous cable referenced) mistakenly states that

crew involved in the initial construction of a rig

should be considered part of the complement of the

rig and therefore subject to the manning requirements

of the (OCSL Act) Amendments. The Coast Guard

has now stated that until the rig or platform is

operational it has no complement and therefore the

crew will continue to be viewed as crew of the barge

exempt from the manning provisions of the act pro-

vided that the barge is foreign owned or controlled.

April 3, 1989 State Department Cable No. 102429, at-

tached as exhibit 1 to Defendant’s Motion for Summary

Judgement (emphasis and parenthesis added). This cable

shows that Commander De Cesare’s deposition testimony

is not a post hoc rationalization of the preamble; it is an

explanation of the continuous and long-standing interpre-

tation the Coast Guard has given its manning and crewing

regulations on the issue of how construction workers

5 There are other significant differences between Caiola and the

case at bar. For instance, the regulation in question in Caiola

was written and promulgated not only by the DOD, but by the

General Services Administration and the National Aeronautics and

Space Administration as well. “The diffusion of interpretive au-

thority among several agencies, and the possibility of inconsistent

interpretations, weaken(ed) the case for deference”. Id. at 399.

In this case the regulation in question was promulgated by the

Coast Guard only. Moreover, the Court of Appeals in Caiola found

that the debarring official was inconsistent in the way he inter-

preted the regulation. /d. Plaintiffs, though, have produced no

evidence which suggests that the Coast Guard has ever taken a

position different from the one espoused in the case at bar.

32a

doing offshore oil platform work should be treated under

these regulations. That being the case, the Court will

review the Coast Guard’s position under the deferential

standards set forth by the Supreme Court in Stinson and

Bowles.

The regulations in question describe workers who “man”

or “crew” a vessel, rig, platform, or other vehicle or

structure under § 1356(a)(3) as being “members of the

regular complement of the unit”. 33 C.F.R. §§ 141.15(a)

(1990). The “regular complement of a unit” in turn

means “those personnel necessary for the routine func-

tioning of the unit .. .” Jd. at 141.15(b). The Coast

Guard views the construction workers as necessary for the

“routine functioning” of the derrick barges because they

carry out the business of the barges, which is the build-

ing of oil platforms on the outer Continental Shelf.

Plaintiffs assert that the phrase “regular function”

should not be interpreted in terms of the mission of the

unit, but in terms of the unit’s physical ability to operate.

Since the construction workers in question perform no

part in either maintaining the barges or in helping them

run, plaintiffs argue, they should not be considered mem-

bers of the barges’ regular complement. However, plain-

tiffs offer nothing to suggest that the Coast Guard’s view

is unreasonable. They simply argue that theirs is the

more reasonable approach. The Court, though, is not

free to pick and choose which interpretation it finds pref-

erable. See Orengo Caraballo v. Reich, 11 F.3d 186, 193

(D.C.Cir. 1993). It must limit its focus to whether the

Coast Guard's position is either “plainly erroneous” or

“inconsistent with the regulation”. Stinson, 113 S.Ct. at

414; Bowles, 325 US. at 414.

The Court finds that the Coast Guard’s interpretation

violates neither of these two standards. Certainly, there

is nothing either unreasonable or irrational about defining

a vessel or rig’s “function” by the work it is engaged in

33a

rather than by the work that is done upon it. Moreover,

the Coast Guard regulations were issued pursuant to the

directives of § 1356 of the OCSL Act, which Congress

created to “reconcile the dual concerns of providing the

fullest possible employment for Americans in U.S. (OCS)

activities and eliminating to the fullest possible extent the

likelihood of retaliation by foreign nations against Amer-

ican workers in foreign offshore activities”. H.R.Conf.

Rep. N. 1475, 95th Cong., 2d Sess. 123 (1978), reprinted

in U.S. Code Cong. & Adm. News 1450, 1674, 1722.

The Coast Guard has done nothing to undermine these

goals by finding the construction workers at issue to be

members of the regular complement of the derrick barges

from which they work. The Court will therefore uphold

the Coast Guard’s position.

Plaintiffs argue alternatively that, even if the Court finds

the construction workers to be part of the regular com-

plement of the derrick barges as requested by defendants,

that does not mean § 1356 of the OCSL Act should apply

to them in regard to the work they do on the oil plat-

forms. To this end, they point to language from the

Coast Guard’s commentary to the manning and crewing

regulations which states that “a position may be part of the

regular complement on one unit but not on ancther”.

47 Fed.Reg. at 9370. The Court finds no merit to this

assertion, though, because as discussed, supra, the Coast

Guard defines the relationship between the construction

workers and the derrick barges in terms of the labor these

workers perform on the oil platforms. These workers

are part of the regular complement of the barges because

the work they do on the platforms is necessary to carry

out the business of the barge. It is impossible to separate

the work from the barge without disregarding the under-

lying rationale of Coast Guard’s position. For that rea-

son, the Court rejects plaintiffs’ argument on this point.

34a

B. The Interplay Between § 1356 and the INA

Under the INA, nonimmigrant aliens are precluded from

entering the United States to perform skilled or unskilled

labor, including construction work, unless persons willing

and able to perform the work cannot be found in the

United States and employing such aliens will not adversely

affect the wages and working conditions of American

workers. See 8 U.S.C. § 1101(a)(15)(H) (ii) (b). Visas

issued under section 1101(a)(15)(H)(ii)(b) are known

as “H-2B” visas.

Defendants argue that these provisions of the INA

should not be applied in addition to the exceptions in

§ 1356(a)(3) of the OCSL Act, because those exceptions

would then be rendered virtually meaningless. Plaintiffs

argue that the unambiguous language of the exceptions

shows they apply only to the manning and crewing re-

quirements of § 1356, and that the Court should not go

beyond this plain language and exclude the visa require-

ments of INA when no such exclusion exists on the face

of the statute. They also argue that the exceptions would

be rendered meaningless if the INA were applied. The

Court agrees with the defendants and finds that the visa

requirements of the INA do not govern workers who are

within the parameters of § 1356(a)(3) of the OCSL Act

and the exceptions thereto.°

Plaintiffs’ argument is based largely on the fact that

neither § 1356(a)(3) nor its exceptions expressly super-

sede the INA. They argue that, since the Court has al-

ready found that the INA applies generally to the outer

Continental Shelf, any finding that § 1356 modifies or

supersedes the INA would fly in the face of the wide

® Defendants also argue that this Court is bound by the Pile-

drivers’ decision on this question under the doctrine of issue

preclusion. Since the Court’s own conclusion is consistent with

that reached by the Ninth Circuit in Piledrivers’, the Court will

not address this issue.

35a

judicial reluctance to effect “repeals by implication”.’

They argue that the visa requirements of the INA and

the exceptions in § 1356 of the OCSL Act must be “mu-

tually repugnant” * before the former should fall, and

that in construing the two the Court should not assume

mutual repugnance but must attempt to give “effect to

each while preserving their sense and purpose”.’ Plain-

tiffs assert that there is no such mutual repugnancy, so no

repeal is necessary.

The Court disagrees with plaintiffs for a number of

reasons. First, the iNA itself does not extend its pro-

visions to the outer Continental Shelf. It reaches off-

shore activities through the operation of § 1333(a)(1)

of the OCSL Act, which applies all federal law to the

OCS. By finding that the INA does not govern workers

covered by § 1356(a)(3), then, the Court has effected

7 Quoting from Morton v. Mancari, 417 U.S. 535, 549 (1974).

8 Quoting from United States v. Borden, 308 U.S. 188, 198-99

(1939).

* Quoting from Watt v. Alaska, 451 U.S. 259, 367 (1981).

10 As the Court of Appeals noted in this case, under the INA

nonimmigrant aliens:

“must comply with the immigration laws in order to enter

the United States. “Entry” is a term of art in immigration

law. See, e.g., Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804,

10 L.Ed.2d 1000 (1968); C. Gordon & S. Mailman, Immigra-

tion Law and Procedure § 11.10, at 11-1 (1992). The Immi-

gration and Nationality act defines “entry” to mean “any

coming of an alien into the United States, from a foreign port

or place...” 8 U.S.C. § 1101(a) (13). “ ‘United States’, when

used in a geographical sense, means the continental United

States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin

Islands of the United States”. 8 U.S.C. §1101(a) (38). The

term “continental United States” is defined as follows: “When-

ever the phrase ‘continental United States’ is used in any law

of the United States enacted after the date of enactment of

this Act (June 25, 1989), it shall mean the 49 States on the

North American Continent and the District of Columbia, un-

less otherwise provided” 1 U.S.C. § 1 note.

981 F.2d at 1271 n.1.

36a.

no “implied repeal” of the INA or any section thereof.

It has merely found a discrete, narrowly tailored excep-

tion to the broad pronouncements of § 1333(a)(1) of the

OCSL Act. Second, as plaintiffs themselves acknowledge,

§ 1356(a)(3) places restrictions upon alien workers which

are in many aspects different from those found in the

INA. Congress thus recognized with this section that the

outer Continental Shelf has immigration concerns unique

to it, concerns not adequately addressed by the INA.

That this evidences a congressional intent to replace,

rather than add to, existing immigration law on the OCS

is clear from the fact that, contrary to plaintiffs’ asser-

tions, § 1356 of the OCSL Act and the visa requirements

of the INA are mutually repugnant. In arguing that they

are not, Plaintiffs note that § 1333(a)(1) of the OCSL

Act, and thus the INA, does not apply to free floating

vessels." Both section 1356(a)(3) and its exceptions,

though, do apply to such vessels. Plaintiffs point out that

aliens who man or crew free floating vessels on the OCS,

and who fall within one of the exceptions to § 1356(a)

(3), are thus able to work unencumbered by the visa

requirements of the INA. Therefore, plaintiffs argue, ap-

plication of the INA does not render the exceptions mean-

ingless.

The flaw in plaintiffs’ argument, though, is that §§ 1356

(a)(3) and (c) apply not only to free floating vessels,

but to “any vessel, rig, platform, or other vehicle or

11 That section states in relevant part that the constitution and

all federal law extend 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, develop-

ing, or producing resources therefrom, or any such installa-

tion or other device (other than a ship or vessel) for the pur-

pose of transporting such resources, to the same extent as if

the outer Continental Shelf were an area of exclusive Fed-

eral jurisdiction located within a State...

43 U.S.C. § 1888 (a) (1).

37a

structure’. Id. (emphasis added) Under plaintiffs’

theory, all non-immigrant alien construction workers who

fell within the parameters of § 1356(a)(3) would be

subject to that provision’s requirements, while only those

who manned or crewed free floating vessels or rigs would

be able to benefit from the exceptions to those require-

ments, Nothing in either the face of § 1356 or in its

statutory history suggests that Congress intended such an

anomalous result.

Moreover, as defendants point out and as noted, supra,

in enacting the manning and crewing requirements Con-

gress sought not only to provide and preserve employment

opportunuities for Americans pursuing work on the U.S.

controlled OCS, but also to reduce the threat of foreign

retaliation against American workers in foreign offshore

activities. H.R.Conf.Rep. N. 1475, 95th Cong., 2d Sess.

123 (1978), reprinted in U.S. Code Cong. & Adm. News

1450, 1674, 1722. If alien workers on the OCS were sub-

ject to both § 1356 and the INA, the scales would in-

variably tip in favor of the first concern, thereby disrupt-

ing the balance of interests Congress hoped to create.

The Court therefore finds that the INA does not govern

non-immigrant alien construction workers who are cov-

ered by the exceptions to the manning and crewing re-

quirements found in § 1356 of OCSL Act.

Ill. CONCLUSION

For the reasons expressed, supra, the Court finds that

non-immigrant alien construction workers engaged in the

building of oil platforms on the outer Continental Shelf

are members of the “crew” of the derrick barges from

which they work within the meaning of § 1356(a)(3) of

the OCSL Act; the Court finds further that the provisions

of the INA do not apply to these workers. Plaintiffs’

motion for summary judgement is therefore denied, and

defendants’ motion for summary judgement is granted.

/s/ Thomas A. Flannery

United States District Judge

38a

mane APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 27, 1992 Decided December 22, 1992

No. 91-5337

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES

OF THE PLUMBING AND PIPE FITTING INDUSTRY OF

THE UNITED STATES AND CANADA, AFL-CIO, LOCAL

UNION No. 412, et al. e

V.

WILLIAM P. BARR, et al.,

Appellants

Appeal from the United States District Court

for the District of Columbia

(Civil Action No. 90-02342)

Before: Mrkva, Chief Judge, SENTELLE and RAN-

DOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: Stated in its broadest terms,

the issue presented is whether aliens, in order to perform

work installing oil rigs on the outer Continental Shelf,

must obtain visas of the type issued to nonimmigrant

aliens entering the United States to perform temporary

service or labor. Two federal statutes are involved: the

Outer Continental Shelf Lands Act of 1953 (“OCSL

Act”), 67 Stat. 462, as amended, 43 U.S.C. § 1331 et

seq.; and the Immigration and Nationality Act, 8 U.S.C.

39a

§ 1101 et seg. As suggested by the “Lands” in its title,

the OCSL Act applies to “the subsoil and seabed of the

outer Continental Shelf, and artificial islands and fixed

structures erected thereon.” 43 U.S.C. § 1333(a)(2)

(A). One of its provisions, the meaning of which the

parties dispute, extends federal law to these structures.

43 U.S.C. § 1333(a)(1). We are urged to decide

whether § 1333(a)(1) requires alien construction work-

ers to comply with United States immigration laws. For

the reasons given below, we believe an important threshold

issue, not addressed by the district court, must be decided

first. We therefore vacate the judgment and remand.

I

A.

In 1945, President Truman issued an executive order

announcing that the United States “regards the natural

resources of the subsoil and sea bed of the continental

shelf beneath the high seas contiguous to the coasts of the

United States and appertaining to the United States, sub-

ject to its jurisdiction and control.” Proclamation 2667,

10 Fed. Reg. 12,303, reprinted in 59 Stat. 884. The

Geneva Convention of the Outer Continental Shelf later

recognized the claim. 3 U.N. Doc. A/Conf. 13/L.55,

T.LA.S. No. 5578. In the meantime, jurisdictional con-

troversies arose between the federal government and sev-

eral coastal States, culminating in Supreme Court opin-

ions holding that the federal government had “para-

mount” rights over the area three miles seaward, and

beyond, of each State’s coastline. United States v. Cali-

fornia, 332 U.S. 19 (1947); United States v. Louisiana,

339 U.S. 699, 704 (1950); United States v. Texas, 339

U.S. 707 (1950). While the States therefore could not

grant oil and gas leases with respect to the submerged

lands off their coasts, there was doubt whether the federal

government could do so under the Mineral Leasing Act

of 1920, ch. 85, 41 Stat. 437.

40a

Congress intervened in 1953 with two major pieces of

legislation. The Submerged Lands Act, 43 U.S.C.

§§ 1301-1315, relinquished all federal interest in the sub-

merged lands within three geographic miles of the coast.

Maryland v. Louisiana, 451 U.S. 725, 730 (1981). Later

in the year, Congress enacted the Outer Continental Shelf

Lands Act, reiterating that the “subsoil and seabed of the

outer Continental Shelf”’—which consists,with certain ex-

ceptions (H.R. Rep. No. 590, 95th Cong., Ist Sess. 54

(1977)), of the submerged lands on the Shelf lying sea-

ward of the three mile belt, 43 U.S.C. §§ 1331(a), 1301

(a) (2)—“appertain to the United States and are subject

to its jurisdiction, control, and power of disposition. . . .”

43 U.S.C. § 1332(1).

In choosing a body of law to govern leasing and other

activities on the outer Continental Shelf, Congress ulti-

mately settled on a combined federal-state regime. See

W. Christopher, The Outer Continental Shelf Lands Act:

Key to a New Frontier, 6 STAN. L. REv. 23, 37-43

(1953). Section 1333(a)(2) applies the civil and crim-

inal laws of adjacent States, except their tax laws, “[t]o

the extent that they are applicable and not inconsistent

with . . . other Federal laws and regulations.” Section

1333(a)(1), the provision the parties focus on here,

States:

The Constitution and laws and civil political jurisdic-

tion of the United States are hereby 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 pur-

pose of exploring for, developing, or producing re-

sources 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 exclu-

sive Federal jurisdiction located within a state: Pro-

ee -

4la

vided, however, That mineral leases on the outer

Continental Shelf shall be maintained or issued only

under the provisions of this subchapter.

B.

The events apparently precipitating this lawsuit oc-

curred in 1989, when Heerema Marine Contractors, S.A.,

a Dutch-owned Swiss company employing nonimmigrant

aliens, started construction work for Exxon Company,

U.S.A., on the outer Continental Shelf off the coast of

Santa Barbara, California. The district court, in its opin-

ion, offers little in the way of detail about Heerema’s

activities. (Heerema is not a party; the company’s United

States affiliate appeared as an amicus curiae.) We gather

from the record that Heerema’s contract was limited to

installing platform “jackets,” ‘hat is, pre-manufactured

steel legs and infrastructure, to serve as the foundations

for two Exxon oil platforms—the Heritage and the Har-

mony. Heerema transported the jackets to the outer Con-

tinental Shelf and then secured them to the seabed, work-

ing from the BALDER, a semisubmersible crane vessel

owned by a Heerema affiliate. The BALDER’s crew con-

sisted of aliens. Exxon owned the jackets, but according

to Heerema’s counsel, Heerema had custody and control

of the jackets during the installation period.

Two labor unions representing American construction

workers, the United Association of Journeymen and Ap-

prentices of the Plumbing and Pipefitting Industry of the

United States and Canada, AFL-CIO, and the United

Brotherhood of Carpenters and Joiners of America, AFL-

CIO, sued the Attorney General, the Secretary of State,

the Secretary of Transportation, the United States Coast

Guard, and the Immigration and Naturalization Service.

Citing § 1333(a)(1) of the OCSL Act, the unions

claimed that the immigration laws barred alien employees

from performing construction work on the Continental

Shelf without first obtaining the appropriate visas. In

42a

their complaint, the unions mentioned the two Exxon

“platforms” as examples. Complaint 4 26.

Under the current version of the Immigration and Na-

tionality Act, a nonimmigrant alien may temporarily enter

the United States* to perform construction work if he

possesses an H-2B visa. Before a consular officer may

issue an H-2B visa, the employer petitioning for the alien’s

admission must obtain “certification from the Secretary of

Labor stating that qualified workers in the United States

are not available and that the alien’s employment will not

adversely affect wages and working conditions of similarly

employed United States workers.” 8 C.F.R. § 214.2(h)

(6)(iv)(1); see also 8 U.S.C. § 1101(a)(15)(H)(ii)

(b).2. The basic 1952 Immigration and Nationality Act

1 Nonimmigrant aliens must comply with the immigration laws in

order to enter the United States. “Entry” is a term of art in the

immigration laws. See, e.g., Rosenberg v. Fleuti, 874 U.S. 449

(1963); C. GoRDON & S. MAILMAN, IMMIGRATION LAW AND PRO-

CEDURE § 11,10, at 11-1 (1992). The Immigration and Nationality

Act defines “entry” to mean “any coming of an alien into the United

States, from a foreign port or place... .” 8 U.S.C. § 1101(a) (18).

“ ‘United States’... when used in a geographical sense, means the

continental United States, Alaska, Hawaii, Puerto Rico, Guam, and

the Virgin Islands of the United States.” 8 U.S.C. § 1101(a) (38).

The term “continental United States” is defined as follows: ‘“When-

ever the phrase ‘continental United States’ is used in any law of the

United States enacted after the date of enactment of this Act [June

25, 1959], it shall mean the 49 States on the North American

Continent and the District of Columbia, unless otherwise provided.”

1 U.S.C. §1 note.

2 The Immigration Service does not believe the immigration laws

apply on the outer Continental Shelf. Nevertheless, alien workers

on the BALDER apparently held B-1 visas, which are available to

nonimmigrant aliens who are “visiting the United States tempo-

rarily for business or temporarily for pleasure.” 8 U.S.C.

§ 1101(a) (15) (B). (“Business” does not include construction work.

8 C.F.R. § 214.2(b) (5).) The government explains that these par-

ticular workers probably obtained the B-1 visas in order to visit the

United States before proceeding to the outer Continental Shelf.

Reply Brief for Appellants at 9. “[T]hose alien construction work-

ite Saree. Oe oe oh ae eee

oO

43a

contained similar provisions, §§ 101(a)(15), 212(a)

(14), 66 Stat. 163, 167, 183, which trace their lineage to

the anti-“coolie” act of 1875 and the Chinese Exclusion

Acts, beginning in 1882. C. GORDON & S. MAILMAN,

IMMIGRATION LAW, AND PROCEDURE § 20.03[1], at 20-

11 to 20-12 (1992).

With the district court’s approval, the parties agreed

to stay all discovery. On cross-motions for summary

_ judgment, the court ruled in favor of the unions, reject-

ing the government’s position that aliens performing tem-

porary construction work on the outer Continental Shelf

were not required to obtain H-2B visas. The Immigra-

tion and Nationality Act applied to these workers, the

court held, as a result of § 1333(a)(1) of the OCSL |

Act. United Ass'n of Journeymen v. Thornburgh, 768

F. Supp. 375 (D.D.C. 1991).

II

If we confined our attention to the activities of Heerema,

as best we can discern them from the sparse record be-

fore us, one problem immediately presents itself. Installa-

tion of jackets takes but a short time. When Heerema’s

United States affiliate sought leave to file an amicus brief

in the district court, it reported that the jackets already

were in place. Heerema’s crane ship BALDER, we may

assume, is therefore no longer operating off the coast

of Santa Barbara. The Ninth Circuit confronted a similar

situation in Piledrivers’ Local Union No. 2375 v. Smith,

695 F.2d 390 (1982), a mandamus action against the

Attorney General and the Immigration Service to compel

enforcement of the Immigration and Nationality Act on

the outer Continental Shelf. There, “Heerema installed

an offshore platform for Texaco using the foreign crew

on the Challenger I,” a foreign-owned heavy lift crane

ship. Id. at 392. The installation, which took less than

ers who proceed to the OCS without entering the United States,”

the government adds, “do not require any visa.” Jd.

44a

a month, had been completed. Jd. Although Heerema

was no longer working on the outer Continental Shelf,

the court of appeals found the case “ripe for adjudica-

tion” because the company shortly would be working

there again: it had entered into a contract with Chevron

to install another platform using the crew of the Chal-

lenger I. Id. The case before us differs from Piledrivers

in the respect that Heerema has not entered into another

contract to install jackets, or at least the record does not

show as much. While this cuts against finding a live con-

troversy, another difference points in the opposite direc-

tion. Unlike Piledrivers, the union’s complaint here is

general; Heerema’s work for Exxon is cited by way of

illustration. The basic challenge is to an ongoing practice

of the federal government, permitting aliens not holding

H-2B visas to perform the kind of work Heerema did for

Exxon, work that members of the unions allegedly could

undertake. The government has admitted that it treats

aliens performing construction work on offshore oil plat-

forms on the outer Continental Shelf as exempt from the

immigration employment restrictions of the Immigration

and Nationality Act. Even if the unions’ action forcussed

solely on Heerema’s work for Exxon, the case would ap-

pear to fall within the exception to the mootness doctrine

for issues “capable of repetition, yet evading review.”

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498,

515 (1911); see Christian Knights of the Ku Klux Klan

v. District of Columbia, 972 F.2d 365, 369-71 (D.C.

Cir. 1992). Since installation work on oil platforms is

completed so quickly, there would not be suffiicent time

for appellate review in the case of any one project.

We therefore turn to the merits. The unions frame

the question as “whether the Immigration and Nationality

Act applies to oil rig construction on the” outer Con-

tinental Shelf (Brief at 10) and assume the case depends

entirely on the effect of § 1333(a)(1) of the OCSL Act.

We think this formulation misses a preliminary point of

significance.

45a

Section 1356 of the OCSL Act, added in 1978, Pub. L.

No. 95-372, tit. II, § 208, 92 Stat. 669, requires the Coast

Guard to issue rules requiring that “any vessel, rig, plat-

form, or other vehicle or structure” used in

operations on the outer Continental Shelf be “manned or

crewed . . . by citizens of the United States or aliens

lawfully admitted to the Unted States for permanent resi-

dence.” 43 U.S.C. § 1356(a) & (a)(3). To this re-

quirement, § 1356(c) makes an exception for any vessel

or structure “over 50 percent of which is owned by citi-

zens of a foreign nation or with respect to which the

citizens of a foreign nation have the right effectively to

control.” 43 U.S.C. § 1356(c)(2).° According to the

conference committee, § 1356 was intended to “reconcile

the dual concerns of providing the fullest possible employ-

ment for Americans in U.S. Outer Continental Shelf ac-

tivities and eliminating to the fullest possible extent the

likelihood of retaliation by foreign nations against Ameri-

can workers in foreign offshore activities.” H.R. Rep.

No. 1474, 95th Cong., 2d Sess. 123 (1978); see also id.

at 124-26. See also Department of Justice, Office of Legal

Counsel, Memorandum Opinion for the General Counsel,

Immigration and Naturalization Service, No. 79-68, 3 Op.

Attorney General John M. Harmon agreed with the Im-

migration Service that the immigration laws do not apply

on the outer Continental Shelf because § 1356 was “in-

8 Section 1856(c) (1) contains two other exceptions. The require-

ments of § 1356(a) do not apply if:

(B) there are not a sufficient number of citizens of the United

States, or aliens lawfully admitted to the United States for

permanent 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 consistert with the national

interest.

46a

When construction workers erect the foundation for an

oil platform on the outer Continental Shelf are they man-

ning or crewing « vessel, rig, platform, or other vehicle or

structure, and thus within § 1356? If they are covered,

the issue raised by this case is far narrower than the

unions suppose. Rather than deciding whether the immi-

gration laws generally apply—the issue considered by the

Office of Legal Counsel—we would need to determine

only whether aliens manning or crewing foreign-owned

facilities, and thus within the § 1356(c)(2) exception,

were exempted from the immigration laws even if these

laws otherwise applied. The district court never reached

this issue because it found § 1356 inapplicable: Coast

Guard regulations say that manning and crewing refers

to the regular complement of a unit (33 C.F.R. § 141.15

(a) & (b)); in the court’s words, “temporary construction

workers are not employees necessary for the routine func-

tioning of an oil production facility”; therefore, “tempo-

rary construction workers are not encompassed by the

manning and crewing requirement of § 1356(a)(3).”

768 F. Supp. at 381. But if, as the district court said,

employees are not part of the regular complement of the

oil platform they are constructing, should they neverthe-

less be considered within § 1356 because they are man-

ning or crewing the crane ship from which they conduct

their operations in installing the jacket? Section 1356

covers not only those working on platforms but also

those working on “vessels” performing regulated activities

on the outer Contirfental Shelf. This is the point of the

Ninth Circuit’s decision in Piledrivers, holding that the

aliens working for Heerema on the foreign-owned ship

Challenger I were covered by the exception in § 1356(c)

(2). 695 F.2d at 393-94. The district court’s interpre-

tation may also be at odds with the Coast Guard’s read-

ing of its regulations cited by the court. In discussing

its final rule implementing § 1356, promulgated several

months before the Piledrivers decision, the Coast Guard

mentioned one comment suggesting “that construction

47a

workers building a platform be considered part of the

regular complement of the construction barge from which

they work, if that vessel’s primary purpose is construc-

tion, fabrication, or alteration of structure attached to the

Outer Continental Shelf.” The Coast Guard responded:

“The language of 141.15”—-on which the district court

relied—‘“already permits such a conclusion and no change

has becy made.” 47 Fed. Reg. 9366, 9370 (1982).

On this record we cannot determine the applicability of

§ 1356. The Coast Guard enforces this provision. It may

be that the explanation in the Federal Register, although

framed in terms of what would be a permissible reading

of a regulation, reflects the Coast Guard’s interpretation

that § 1356(c)’s exemption for foreign-owned vessels and

structures applies to construction workers engaged in the

building of platforms on the outer Continental Shelf. But

we remain uncertain whether, in general, the Coast Guard

adheres to this position and, if so, why. The district court,

as we have said, did not mention the subject. The record

contains little information about how platforms are

erected. It does not reveal, for instance, the extent to

which workers move back and forth from the ship to the

structure while they are installing a jacket.* We cannot

tell what the situation is after a jacket is in place. It is

obvious that additional construction work must be done

4 If the alien construction workers man or crew the vessel rather

than the jacket, there may be some doubt whether § 1333 (a) (1)

would have any application to them, wholly apart from the exception

in §1856(c) (2). Unlike § 1356, which applies to “any vessel,

rig, platform, or other vehicle or structure,” § 1883(a) (1) does

not expressly mention “vessels” except by way of exclusion:

§ 1888 (a) (1) extends federal law to “artificial islands, and all in-

stallations and other devices permanently or temporarily attached

to the seabed” and to “any such installation or other device (other

than a ship or vessel) for the purpose of transporting” resources

from the seabed and subsoil of the outer Continental Shelf. On the

other hand, § 1883(a)(1) might be considered applicable on the

basis that these employees are engaging in an “installation,” re-

gardless of whether they are accomplishing the task from a vessel

not otherwise included within the terms of the provision.

a

48a

in order to make the platform operational. Yet there is

nothing before us to indicate whether this type of work is

customarily performed by nonimmigrant aliens tempo-

rarily stationed on American-owned platforms rather than

by members of the platforms’ regular complement, who

would all be citizens or permanent resident aliens as

§ 1356 requires. With respect to the BALDER, the

Coast Guard wrote in April 1989 that because the ship

was foreign owned, it was “exempt under 43 U.S.C. 1356

from manning by U.S. citizens. . . .” Congressman Berman

thereafter inquired “whether workers who are construct-

ing and installing an offshore platform are technically

‘manning or crewing’ the platform rather than the con-

struction barge, for the purpose of” § 1356. The Coast

Guard replied without directly answering the inquiry. It

simply quoted the portion of the Federal Register set

out in the preceding paragraph. We therefore cannot

even be sure how the Coast Guard viewed the situation

with respect to the BALDER and its foreign crew, or

why.

The short of the matter is that the broad question

whether the Immigration and Nationality Act generally

applies on the outer Continental Shelf should not be de-

cided while § 1356’s applicability remains unresolved.

The government argued here and in the district court that

the Heerema’s alien workers were within § 1356(c)’s ex-

ception for crews of foreign-owned vessels® and that to

require them nevertheless to qualify for H-2B visas would

“render the manning and crewing requirements and their

exceptions virtually meaningless.” Brief for Appellants at

18. Before granting summary judgment in favor of the

unions, the district court should have ruled on the gov-

5 The government also contended that § 1856(c) exempted these

workers because, during construction, the jackets were under the

control of Heerema. Brief for Appellants at 18-19. Section

1356 (c) (2) exempts from § 1356(a)’s employment restrictions, any

platform or other structure “with respect w which the citizens of a

foreign nation have the right effectively to control... . .”

49a

ernment’s contentions or required further development of

the pertinent facts despite the agreement of the parties

to stay all discovery. We therefore vacate the district

court’s judgment and remand for further proceedings con-

sistent with this opinion.

So Ordered.

4 50a

APPENDIX D

[Filed Aug. 7, 1991]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 90-2342

Judge Flannery

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES

OF THE PLUMBING AND PIPEFITTING INDUSTRY,

AFL-CIO, et al.,

Plaintiffs,

Vv.

RICHARD THORNBURGH, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs, two labor unions representing American con-

struction workers, bring this action challenging certain

practices of the defendant executive branch officials and

agencies involving employment of nonimmigrant aliens to

perform construction work on oil rigs located on the

United States’ Outer Continental Shelf (“OCS.”) At issue

is which set of statutes and regulations governs the chal-

lenged practices. Plaintiffs contend that the employment

of nonimmigrant aliens is subject to the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101 et seg., and

its accompanying regulations, which allow work to be per-

formed by nonimmigrant aliens only when no American

workers are available and when the wages and working

conditions of American workers will not be adversely

affected. Defendants argue that the 1978 amendments

GEM AO me EEL

, =?

S5la

to the Outer Continental Shelf Lands Act (“OCSLA”),

43 U.S.C. § 1331 ef seq., contain provisions pertaining

to the employment of nonimmigrant aliens that preclude

application of the INA on the OCS. As discussed below,

the Court finds that the INA applies to the employment

of nonimmigrant construction workers on oil rigs located

on the OCS.

I. Statutory and Regulatory Background

A. The Immigration and Nationality Act

The INA defines an “alien” as “any person not a Citi-

zen or national of the United States.” 8 U.S.C. § 1101

(a)(3). Aliens are divided into two groups: “immi-

grants” and “nonimmigrants.” For purposes of this liti-

gation, an immigrant may be defined as an alien entering

the United States with the intention of establishing per-

manent residence. See id. § 1101(a)(15). The INA

specifies several categories of aliens who shall be con-

sidered nonimmigrants, including “an alien having resi-

dence in a foreign country which he has no intention of

abandoning . . . who is coming temporarily to the United

States . . . to perform . . . temporary service or labor. . .”

Id. § 1101(a)(15)(H)(ii)(b). The latter category of

aliens may be admitted to the United States only “if un-

employed persons capable of performing such service or

labor cannot be found in this country...” 7d.

Immigration and Naturalization Service (“INS”) regu-

lations provide that nonimmigrants entcring the United

States pursuant to § 1101(a)(15)(H) (ii) (b) of the INA

are granted “H-2B” visas. 8 C.F.R. § 214.2(h)(1),

(h) (1) (ii) (B) (2) (1991). An H-2B visa may be issued

only upon

(1) A certification from the Secretary of Labor

stating that qualified workers in the United States

are not available and that the alien’s employment

52a.

will not adversely affect wages and working condi-

tions of similarly employed United States workers; or

(2) A notice detailing the reasons why such cer-

tification cannot be made. Such notice shall address

the availability of U.S. workers in the occupation

and the prevailing wages and working conditions of

U.S. workers in the occupation.

Id, § 214.2(h) (6) (iv) (1991).

B. The Outer Continenial Shelf Lands Act

Congress enacted the OCSLA in 1953 in order “to

assert the exclusive jurisdiction and control of the Federal

Government of the United States over the seabed and

subsoil of the outer Continental Shelf, and to provide for

the development of its vast mineral resources.” S. Rep.

No. 411, 83d Cong., Ist Sess. 2 (1953).? Section

1333(a)(1) of the OCSLA provides:

The Constitution and laws and civil and political

jurisdiction of the United States are hereby extended

to the subsoil and seabed of the outer Continental

Shelf and to all artificial islands, and to all installa-

tions and other devices permanently or temporarily

attached to the seabed, which may be erected thereon

1In their pleadings, the unions cite to the 1990 version of the

certification requirement, found at 8 C.F.R. § 214.2(h) (4) (1990).

This version is substantively the same as the 1991 certification

requirement, although the 1991 regulation has been renumbered

and contains slightly different language. Because the unions seek

prospective injunctive relief, it is proper to consider the 1991

version of the regulation rather than the version in effect at the

time this lawsuit was filed. Because the 1990 and 1991 certifica-

tion requirements are substantively identical, this action is not

rendered moot by the amendment and reissuance of the INS

regulations.

2 The Outer Continental Shelf is defined as “all submerged lands

lying seaward and outside” the three-mile area extending from the

United States coastline. 43 U.S.C. §§ 13801(a) (2), 1831(a).

53a

for the purpose of exploring for, developing, or pro-

ducing 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...

43 U.S.C. § 1333(a)(1)8

In 1978, Congress amended the OCSLA by adding

§ 1356(a)(3) and (c). Outer Continental Shelf Lands

Act Amendments of 1978, Pub. L. No. 95-372, § 30,

92 Stat. 629, 669-70. This section, applicable to the

OCS, provides:

3In 1978, Congress enacted certain amendments to § 4(a) (1)

(a) Regulations

Within six months after September 18, 1978, the

Secretary of the Department in which the Coast

Guard is operating shall issue regulations which re-

quire that any vessel, rig, platform, or other vehicle

or structure—

* * *

(3) . . . be manned or crewed, except as

provided in subsection (c) of this section, by

citizens of the United States or aliens lawfully

admitted to the United States for permanent

residence.

* * *

of the OCSLA of 1953, codified at 48 U.S.C. § 1833(a) (1), intended

to make

clear that Federal law is to be applicable to all activities on

all devices in contact with the seabed for exploration, delevop-

ment, and production. . . . [including] activities on drilling

ships, semi-submersible drilling rigs, and other watercraft,

when they are connected to the seabed by drillstrings, pipes,

or other appurten[an]ces, on the OCS for exploration, develop-

ment, or production purposes.

H.R. Rep. No. 95-590, 95th Cong., 2d Sess. 128 (1977), reprinted

in 1978 U.S. Code Cong. & Admin. News 1450, 1534.

54a

(c) Exceptions from manning requirements

The regulations issued under subsection (a) (3)

of this section shall not apply—

(1) to any vessel, rig, platform, or other

vehicle or structure if—

(A) specific contractual provisions or

national registry manning requirements

provide to the contrary;

(B) there are not a sufficient number

of citizens of the United States or aliens

lawfully admitted to the United States for

permanent residence, qualified and avail-

able for such work; or

(C) the President makes a _ specific

finding, with respect to the particular ves-

sel, rig, platform, or other vehicle or struc-

ture, that application would not be consist-

ent with the national interest; and

(2) to any vessel, rig, platform, or other

vehicie or structure, over 50 percent of which

is owned by citizens of 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 of such foreign

nation or any of its political subdivisions has

implemented, by statute, regulation, policy, or

practice, a national manning requirement for

equipment engaged in the exploration, develop-

ment, or production of oil and gas in its off-

shore areas.

43 U.S.C. § 1356(a) (3), (c).

Il. Factual Background

Defendants are various executive branch officials and

agencies (hereinafter “the government”) charged with

se sf

MRPs

es te a aa bal ee NS a

PO Ge RT ORO LEI TES SYS, ety RE AS FOE

55a

administering the INA and the OCSLA. The unions have

identified two oil rig construction projects located on the

OCS in which they alleged that the government has

allowed employment of nonimmigrants in violation of the

INA. These oil platforms—the Heritage and Harmony

platforms located off the coast of Santa Barbara, Califor-

nia—are being constructed by Heerema Marine Contrac-

tors S.A., a Dutch-owned company.

The unions allege that the government has issued non-

immigrant construction workers “B-1” visas,* which, un-

like H-2B visas, do not require a certification from the

Secretary of Labor regarding the unavailability of Ameri-

can workers or the effect of nonimmigrant labor on

American wages and working conditions.° The govern-

ment admits that nonimmigrants who present themselves

for admission at a United States Port of Entry must

4B-1 visas are issued to nonimmigrants entering the United

States “temporarily for business or temporarily for pleasure.” 8

U.S.C. §1101(a) (15) (B). B-1 visas are not available to non-

immigrants entering the United States to perform temporary

“skilled or unskilled labor,” id., or “to perform building or con-

struction work.” 8 C.F.R. § 214.2(b) (5) (1991).

5 The unions rely upon published INS Operating Instructions

in arguing that the government has a practice or policy of issuing

B-1 visas to nonimmigrants destined for the OCS. Operations

Instruction 214.2(b) provides that

Persons engaged in activities on the outer continental shelf

are under the jurisdiction of the United States Coast Guard.

Any person inquiring about his or her right to engage in

employment on the outer continental shelf should be referred

to the Coast Guard. Nonimmigrants destined to the outer

continental shelf normally will be classified B-1, and the con-

sular officers will annotate such visas “OCS[.]”

INS Operations Instruction 214.2(b); see also INS Operations

Instruction 235.1 (same).

The INS operations Instructions do not specify which classes

of nonimmigrants are to be issued B-1 visas. To the extent that

these Operations Instructions are relevant to the Court’s decision,

the Court must assume that they express a policy of issuing B-1

visas to all nonimmigrants destined for employment on the OCS.

56a

possess a visa in order to enter the United States prior

to proceeding to the OCS. The government also admits

that these nonimmigrants are issued B-1 visas, but it

contends that such visas are required solely for the pur-

pose of entering the United States and not for the purpose

of performing work on the OCS. The government claims

that no visa of any type need be issued if the nonimmi-

grant proceeds directly to the OCS work site without

first entering the mainland United States.

Ill. Discussion

This case is not the first attempt to reconcile the visa

requirements of the INA with § 1356 of the OCSLA.

In 1982, the Ninth Circuit considered the relationship

between these two statutes in Piledrivers’ Local Union

No. 2375 v. Smith, 695 F.2d 390 (9th Cir. 1982). In

Piledrivers, the Circuit considered whether the visa re-

quirements of the INA applied to nonimmigrant workers

employed as crew members on foreign-owned heavy lift

crane ships in constructing offshore drilling and pro-

duction platforms. Id. at 391. The Court began its

analysis by noting that Congress, in enacting the OCSLA

in 1953, intended that the INA apply to employment of

aliens on the OCS. Id. at 393 (quoting S. Rep. No. 411,

83d Cong., Ist Sess. 24 (1953)). The Court also found

that Congress intended the 1978 amendments to “restate

and clarify and not change existing law.” Jd. (quoting

H.R. Conf. Rep. No. 1474, 95th Cong., 2d Sess. 80

(1978), reprinted in 1978 U.S. Cong. Code & Admin.

News 1450, 1674, 1679). Having found that Congress

in 1978 did not intend to repeal application of the INA

to the OCS, and “see[ing] no irreconcilable conflict be-

tween section 1356 and the I.N.A.,” the Ninth Circuit

ruled that “the I.N.A. applies to the outer continental

Shelf except as modified by 43 U.S.C. § 1356.” Td.

Turning to the facts of the case before it, the Piledriv-

ers Court found that employment of nonimmigrants on

the foreign-owned crane ship Challenger I fell within the

57a

“foreign ownership exception” of § 1356(c)(2) of the

OCSLA. 695 F.2d at 394. The Court’s entire discussion

of this holding is as follows:

Challenger I is owned by foreign citizens. We,

therefore, hold that the foreign ownership exception

is applicable here, and that the crew of Challenger I

is exempt from the certification requirements of the

I.N.A.

Id.

Neither party urges the Court to adopt the decision in

Piledrivers, and, in any event, the Court does not find

Piledrivers to be binding or persuasive precedent on the

issue raised by this litigation. In addition to the brevity

of the Circuit’s reasoning, which provides little guidance

on this difficult issue of statutory interpretation, the Court

finds that Piledrivers ignores the plain language of § 1356.

By its very terms, § 1356(c) sets forth exceptions to

“(tlhe regulations issued under subsection (a)(3) of this

section . . .” 43 U.S.C. § 1356(c) (emphasis added).

Nowhere does § 1356(c) purport to create exceptions to

application of the INA, as held by the Piledrivers Court.

Courts are obligated to give effect to the plain and un-

ambiguous meaning of a statute, and exceptions to clearly

delineated statutes will be implied only when the plain

language would give rise to absurd results or to conse-

quences obviously at odds with the underlying statutory

scheme. United States v. Rutherford, 442 U.S. 544, 551-

52 (1979) (citing cases). The Piledrivers Court not

only ignored the plain language of § 1356(c), which ex-

pressly limits application of its exceptions to the Coast

Guard regulations promulgated pursuant to § 1356(a)(3),

but it also read § 1356(c) to imply an exception to a

wholly independent statute, the INA, without providing

any legal support or detailed discussion of its rationale

for deciding upon such an unusual statutory construction.

Thus, the Court declines to follow Piledrivers.

Reconciliation of the provisions of the INA and the

OCSLA was also attempted by the Office of Legal Coun-

58a

sel (“OLC”) shortly after passage of the 1978 OCSLA

amendments. See Memorandum Opinion for the General

Counsel, Immigration and Naturalization Service, No.

79-68, 3 Op. Off. Legal Counsel 362 (1979). Upon re-

viewing the statutory language and legislative history, the

OLC concluded that § 1333(a)(1) of the OCSLA,

“standing alone, is broad enough to require application

of the Immigration and Naturalization Act to drilling rigs

on the Shelf.” Jd. at 365. Upon consideration of the

eflect of § 1356’s specific language, however, the OLC

found that “[t]he only conclusion that makes sense. . .

is to assume that § [1356] is intended to be a self-

contained statement of the extent to which principles of

immigration control are to be applied.” Jd. at 366.

The OLC gave two reasons for its conclusion that

§ 1356 displaces the INA. First, the OLC found that

the immigration laws do not include the authority to

create exceptions parallel to those of § 1356, “and [that]

the 1978 amendments do not purport to modify the Im-

migration and Naturalization Act.” 3 Op. Office Legal

Counsel at 366. Second, the OLC raised the pragmatic

concern that giving effect to both statutes on the OCS

would have the undesirable effect of vesting jurisdiction

to enforce similar statutory provisions in two agencies,

the INS and the Coast Guard. Jd. n. 7. The OLC be-

lieved that this would result in inconsistent application

of the laws and duplication of agency efforts. /d.

The Court disagrees with the OLC’s conclusion that

§ 1356 of OCSLA precludes application of the INA on

the OCS. It is a “ ‘cardinal rule’” of statutory interpre-

tation “‘that repeals by implication are not favored.’ ”

Morton v. Mancari, 417 U.S. 535, 549 (1974) (quoting

Posadas v. National City Bank, 296 U.S. 497, 503

(1936)). The intention of the legislature to repeal the

earlier statute must be clear and manifest. Tennessee

Valley Auth’y v. Hill, 437 U.S. 153, 189-90 (1979)

(citing cases). “[R]Jepeals [by implication] are strongly

TIE RAR EA HRTEM AAR RUN Rtn sgl oe A SHY RHEIY an AINE Beans pone CASTLES

59a

disfavored on the ground that Congress is normally ex-

pected to be aware of its previous enactments and to pro-

vide a clear statement of repeal . . .” Samuels v. District

of Columbia, 770 F.2d 184, 195 (D.C. Cir. 1985).

An intent to repeal an earlier statute may be found in

one of two ways. The Court first must look for some

indication of an intent to repeal in the statutory language

and in the legislative history of the statute. See Morton,

417 U.S. at 550. “In the absence of some affirmative

showing of an intention to repeal, the only permissible

justification for a repeal by implication is when the earlier

and later statutes are irreconcilable.” /d. (citing Georgia

v. Pennsylvania R. Co., 324 U.S. 439, 456-57 (1945)).

The language of the OCSLA reveals no express intent

to repeal the INA.* Likewise, the legislative history of the

OCSLA contains no indication of a congressional intent

to preclude application of the INA on the OCS. Cer-

tainly in 1953 Congress believed that the INA should

apply to the OCS. See 3 Op. Off. Legal Counsel at 364-

65. Prior to pasage of the original OCSLA, Congress de-

leted from the Senate bill specific language dealing with

the employment of aliens, explaining that “since all ap-

plicable Federal laws are extended to the seabed and

subsoil of the outer shelf [by § 1333(a)(1)], the specific

provisions respecting aliens are believed unnecessary.”

S. Rep. No. 411, 83d Cong., Ist Sess. 24 (1953).

When Congress amended § 1333(a)(1) of the OCSLA

in 1978, it noted that the changes were merely technical

in nature, intended to clarify the applicability of federal

law to oil production facilities located on the OCS, and

that the amendments were “meant to restate and clarify

6 Quite to the contrary, the plain language of the OCSLA indi-

cates an intention to make all federal laws applicable to the OCS.

See 48 U.S.C. $ 1333(a) (1); see also id. § 1833(f) (“The specific

application by this section of certain provisions of law to the [OCS]

... Shall not give rise to any inference that the application . . . of

any other provision of law is not intended.”).

Ce

60a

and not change existing law. Under the conference re-

port language, Federal law is to be applicable to all activ-

ities on all devices in contact with the seabed for explora-

tion, development, and production.” H.R. Conf. Rep. No.

1474, 95th Cong., 2d Sess. 80 (1978), reprinted in 1978

U.S. Code Cong. & Admin. News 1674, 1679; see alsv

H.R. Rep. No. 590, 9th Cong., 2d Sess. 128, reprinted in

1978 U.S. Code Cong. & Admin. News at 1534. Thus,

the Court finds that Congress in 1953 intended that the

INA be applicable to the OCS, and that Congress in the

1978 amendments to the OCSLA did not clearly express

an intention to repeal application of the INA on the OCS.

Absent an express indication of congressional intent to

repeal the INA, “the only permissible justification for a

repeal by implication is when the earlier and later statutes

are irreconcilable.” Morton, 417 U.S. at 550 (citation

omitted). The Court does not find the INA and the

OCSLA to be irreconcilable as applied to the facts of this

case. Section 1356(a)(3) directs the Coast Guard to

issue regulations requiring that, subject to the exceptions

set forth in subsection (c), oil production facilities be

“manned or crewed” by United States citizens or immi-

grants. 43 U.S.C. § 1356(a)(3). Unfortunately, the

OCSLA does not define the phrase “manned or crewed.”

The Court finds that the meaning of this phrase is deter-

mined by reference to two non-statutory sources.

In the legislative history to the 1978 amendments, Con-

gress indicated that “[t]he provision as to use of citizens

and permanent resident aliens applies only to ‘manning’ or

‘crewing.’ Thus, specialists, professionals, or other tech-

nically trained personnel called in to handle emergencies

or other temporary operations would not be included.”

H.R. Conf. Rep. No. 1474, 95th Cong., 2d Sess. 125,

reprinted in 1978 U.S. Cong. Code & Admin. News at

1724 (emphasis added); see also H.R. Rep. No. 590,

95th Cong., 2d Sess. 177, reprinted in 1978 U.S. Cong.

Code & Admin. News at 1582 (“specialist called in to

handle an emergency situation would not be included”

in “ ‘manning’ or ‘crewing’ ” provision of § 1356(a)(3)).

ee

6la

The meaning of OCSLA’s manning or crewing require-

ment may be further discerned by reference to the Coast

Guard regulations promulgated pursuant to § 1356(a).

See 33 C.F.R. §§ 141.1-.35 (1990). These regulations,

which mirror the statutory restrictions on employment of

nonimmigrants contained in § 1356, provide that

(a) On or after April 5, 1983, each employer

of personnel on any unit engaged in OCS activity

that is subject to this part must employ, as members

of the regular complement of the unit, only citizens

of the United States or resident aliens except as

provided by § 141.20.

(b) As used in paragraph (a) of this section,

“regular complement of a unit” means those per-

sonnel necessary for the routine functioning of the

unit . . . The term does not include specialists,

professionals, or other technically trained personnel

called in to handle emergencies or other temporary

operations; extra personnel on a unit for training:

and other personnel temporarily on a unit for spe-

cialized operations, such as construction, alteration,

well logging, or unusual repairs or emergencies.

Id. § 141.15 (emphasis added) .”

Based upon the legislative history of § 1356 and the

regulations promulgated pursuant to that section, the

Court finds that temporary construction workers are not

employees necessary for the routine functioning of an oil

production facility, and, thus, that temporary construction

workers are not encompassed by the manning and crew-

ing requirement of § 1356(a)(3). Because § 1356 does

not purport to apply immigration restrictions to the types

of nonimmigrant employees subject to this litigation, the

7 The Coast Guard regulations also provide for exceptions to the

employment restrictions of 33 C.F.R. § 141.15(a) which are sub-

stantially the same as the exceptions to the manning or crewing

requirement found in 48 U.S.C. § 1856(c). See 33 C.F.R. § 141.20.

RE NS LH Ee LEON LLIN NEL I NHR I ANE RRR hs FOS eda et Cor

62a

Court finds that, on the facts of this case, there is no

conflict between § 1356 of the OCSLA and the general

immigration provisions of the INA. Because the INA

and the OCSLA are not irreconcilable, there can be no

finding by the Court that the OCSLA repeals by impli-

cation the INA. See Morton, 417 U.S. at 550. The

Court having found that the 1978 OCSLA amendments

did not effect a general repeal of application of the INA

to the OCS, and the Court now finding that § 1356

(a)(3) does not repeal by implication application of the

INA to nonimmigrant construction workers on the OCS,

the Court concludes that the INA applies to these work-

ers and that the government must comply with the rele-

vant visa provisions of the INA.*

IV. Conclusion

For the foregoing reasons, the Court finds that the

employment of nonimmigrant construction workers on the

OCS is subject to the requirements of the INA. The

Court declares the government’s practice of allowing non-

immigrants to perform such work on the INA without

complying with the relevant provisions of the INA and

its accompanying regulations to be illegal. The Court

enjoins the government from continuing these illegal prac-

tices in the future, and the Court further directs the

government to immediately undertake steps to ensure

compliance wih the visa requirements of the INA and

relevant administrative regulations. An appropriate Order

accompanies this Memorandum Opinion.

/s/ Thomas A. Flannery

United States District Judge

8 The Court’s finding is limited to the facts of this case. The

Court does not decide whether the 1978 amendments to the OCSLA

modify or repeal the INA as applied to the employment of workers

other than those hired to perform temporary construction work on

the OCS. Specifically, the Court does not decide whether the OCSLA

repeals application of the INA to employees who are encompassed

by the manning and crewing requirement of § 1356(a) (3).

63a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 90-2342

Judge Flannery

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES

OF THE PLUMBING AND PIPEFITTING INDUSTRY,

AFL-CIO, et al.,

: Plaintiffs,

RICHARD THORNBURGH, ef al.,

Defendants.

ORDER

For the reasons set forth in the accompanying Memo-

randum Opinion, it is by the Court this 6th day of

August 1991

ORDERED that plaintiffs’ motion for summary judg-

ment be, and it hereby is, GRANTED in accordance

with this Order and the accompanying Memorandum

Opinion; and it is further

ORDERED that defendants’ motion to dismiss or for

summary judgment be, and it hereby is, DENIED; and

it is further

DECLARED that defendants Richard L. Thornburgh,

the Immigration and Naturalization Services, James A.

Baker III, Samuel K. Skinner, and the United States

Coast Guard have violated Sections 101(a)(15)(B) and

101(a)(15)(H) (ii) of the Immigration and Nationality

Act, 8 U.S.C. §§ 1101(a)(15)(B) and 1101(a)(15)

(H)(ii), and the regulations promulgated thereunder,

8 C.F.R. § 214.2(h) (6) (iv) (1991); by permitting non-

immigrant aliens to perform construction work or other

similar skilled or unskilled labor of a temporary nature

on the United States Outer Continental Shelf without

64a

complying with the Labor Department certification pro-

cedures in 8 C.F.R. § 214.2(h)(6)(iv) (1991); and it

is further

ORDERED that the defendants, their successors, em-

ployees, agents and assigns, and all persons acting in

concert with them, be, and they hereby are, ENJOINED

to:

(a) cease enforcing or giving effect to any and

all rules, regulations, policies, and practices pursuant

to which nonimmigrant aliens are permitted to per-

form construction work or other similar skilled or

unskilled labor of a temporary nature on the United

States Outer Continental Shelf without the labor

certification procedures required by 8 C.F.R. § 214.2

(h) (6) (iv) (1991);

(b) determine or redetermine the proper visa

classifications, if any, of all nonimmigrant aliens who

are currently engaged in construction work or other

similar skilled or unskilled labor of a temporary

nature on the United States Outer Continental Shelf

and who have not previously been issued visas in

accordance with the labor certification procedures

required by 8 C.F.R. § 214.2(h) (6) (iv) (1991);

(c) comply with Sections 101(a)(15)(B) and

101(a)(15)(H) (ii) of the Immigration and Nation-

ality Act, 8 U.S.C. §§ 1101(a)(15)(B) and 1101

(a)(15)(H) (ii), and 8 C.F.R. § 214.2(h) (6) (iv)

(1991) in future determinations of the proper visa

classifications of nonimmigrant aliens admitted to the

United States for purposes of performing construc-

tion work or other similar skilled or unskilled labor

of a temporary nature.

/s/ Thomas A. Flannery

United States District Judge

65a

APPENDIX E

OUTER CONTINENTAL SHELF LANDS

43 U.S.C. § 1331 et seq.

§ 1331. Definitions

When used in this subchapter—

(a) The term “outer Continental Shelf” means all sub-

merged lands lying seaward and outside of the area of

lands beneath navigable waters as defined in section 1301

of this title, and of which the subsoil and seabed appertain

to the United States and are subject to its jurisdiction and

control:

* Ke K *

§ 1332. Congressional declaration of policy

It is hereby declared to be the policy of the United

States that—

(1) the subsoil and seabed of the outer Continen-

tal Shelf appertain to the United States and are sub-

ject to its jurisdiction, control, and power of disposi-

tion as provided in this subchapter; . . . .

* * * *

§ 1333. Laws and regulations governing lands

(a) Constitution and United States laws; laws of adjacent

States; publication of projected State lines; interna-

tional 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 arti-

ficial islands, and all installations and other devices per-

manently or temporarily attached to the seabed, which

may be erected thereon for the purpose of exploring for,

66a

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... .

* ok co *

§ 1356. Documentary, registry and manning requirements

(a) Regulations

Within six months after September 18, 1978, the Secre-

tary of the Department in which the Coast Guard is oper-

ating 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 of such regula-

tions for activities pursuant to this subchapter and

which is built or rebuilt at any time after such one-

year period, when required to be documented by the

laws of the United States, be documented under the

laws of the United States;

(2) which is used for activities pursuant to this

subchapter, comply, except as provided in subsection

(b) of this section, with such minimum standards of

design, construction, alteration, and repair as the

Secretary or the Secretary of the Department in which

the Coast Guard is operating establishes; and

(3) which is used at any time after the one-year

period beginning on the effective date of such regula-

tions for activities pursuant to this subchapter, be

manned or crewed, except as provided in subsection

(c) of this section, by citizens of the United States

or aliens lawfully admitted to the United States for

permanent residence.

67a

(b) Exceptions from design, construction, alteration, and

repair requirements

The regulations issued under subsection (a)(2) of this

section shall not apply to any vessel, rig, platform, or other

vehicle or structure built prior to September 18, 1978

until such time after such date as such vehicle or structure

is rebuilt.

(c) Exceptions from manning requirements

The regulations issued under subsection (a) (3) of this

section shall not apply—

(1) to any vessel, rig, platform, or other vehicle

or structure if—

(A) specific contractual provisions or na-

tional registry manning requirements in effect on

September 18, 1978, provide to the contrary;

(B) there are not a sufficient number of citi-

zens of the United States, or aliens lawfully ad-

mitted to the United States for permanent resi-

dence, qualified and available for such work; or

(C) the President makes a specific finding,

with respect to the particular vessel, rig, plat-

form, or other vehicle or structure, that applica-

tion would not be consistent 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 of a foreign nation or with respect to which

the citizens of a foreign nation have the right effec-

tively to control, except to the extent and to the de-

gree that the President determines that the govern-

ment of such foreign nation or any of its political

subdivisions has implemented, by statute, regulation,

policy, or practice, a national manning requirement

68a

for equipment engaged in the exploration, develop-

ment, or production of oil and gas in its offshore

areas.

(Aug. 7, 1953, ch. 345, § 30, added Sept. 18, 1978, Pub.

L. 95-372, title II, § 208, 92 Stat. 669.)

69a

APPENDIX F

TITLE 33, C.F.R.

PART 141—PERSONNEL

Subpart A—Restrictions on Employment

§ 141.1 Purpose.

This subpart prescribes rules governing restrictions on

the employment of personnel on units engaged in OCS

activities.

$141.5 Applicability.

(a) This subpart applies to employment of personnel

on units engaged in OCS activities, except as provided in

paragraph (b) of this section.

(b) This subpart does not apply to employment of

personnel on any:

(1) Vessel subject to the citizenship requirements of

46 U.S.C. 672a for pilots, licensed officers, and unlicensed

crew when the vessel is transiting to or from an OCS

facility or a United States port;

(2) Vessel subject to the citizenship requirements of

46 U.S.C. 1132 for officers and crew on federally sub-

sidized or documented vessels; or

(3) Unit over 50 percent of which is owned by one

or more citizens of a foreign nation or with respect to

which one or more 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 govern-

ment of such foreign nation or any of its political sub-

divisions has implemented, by statute, regulation, policy,

or practice, a national manning requirement for equip-

ment engaged in the exploration, development, or pro-

duction of oil or gas in its offshore areas.

70a

(c) The Commandant may, upon request or upon that

person’s own initiative, determine whether over 50 percent

of a particular unit is owned by citizens of a foreign

nation or whether citizens of a foreign nation have the

right effectively to control the unit.

(d) In determining whether ownership or a right effec-

tively to control exists, the Commandant may consider

operational control of a unit, management responsibility,

title, lease and charter arrangements, and financial in-

terests.

(e) The owner or operaor of any unit affected is noti-

fied of the Commandant’s determination.

(Information collection requirements contained in para-

graph (c) were appraved by the Office of Management

and Budget under OMB control number 2130-0182)

§ 141.10 Definitions.

As used in this subpart:

“Citizens of the United States” means:

(1) In the case of an individual, one who is a native

born, derivative, or fully naturalized citizen of the United

States;

(2) In the case of a partnership, unincorporated com-

pany, or association, one in which 50% or more of the

controlling interest is vested in citizens of the United

States; or

(3) In the case of a corporation, one which is in-

corporated under the laws of the United States or of any

State thereof.

“Citizen of a foreign nation” means:

(1) In the case of an individual, one who is not a

citizen of the United States;

(2) In the case of a partnership, unincorporated com-

pany, or association, one in which more than 50% of

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the controlling interest is vested in citizens of a nation

other than the United States; or

(3) In the case of a corporation, one which is incor-

porated under the laws of a nation other than the United

States so long as (i) the title to a majority of the stock

thereof is free from any trust or fiduciary obligation in

favor of any citizen of the United States; (ii) the ma-

jority of the voting power in the corporation is not vested

in any citizen of the United States; (iii) through any

contract or understanding, the majority of the voting

power may not be exercised directly or indirectly on

behalf of any citizen of the United States; or (iv) by no

other means, control of the corporation is conferred upon

or permitted to be exercised by any citizen of the United

States.

“Resident alien” means an alien lawfully admitted to

the United States for permanent residence in accordance

with section 101(a)(20) of the Immigration and Na-

tionality Act of 1952, as amended, 8 U.S.C. 1101(a)(20).

§ 141.15 Restrictions on employment.

(a) On or after April 5, 1983, each employer of per-

sonnel on any unit engaged in OCS activities that is sub-

ject to this part must employ, as members of the regular

complement of the unit, only citizens of the United States

or resident aliens except as provided by § 141.20.

(b) As used in paragraph (a) of this section, “regular

complement of a unit” means those personnel necessary

for the routine functioning of the unit, including marine

officers and crew; industrial personnel on the unit, such

as toolpushers, drillers, roustabouts, floor hands, crane

operators, derrickmen, mechanics, motormen, and general

maintenance personnel; and support personnel on the

unit, such as cooks, stewards and radio operators. The

term does not include specialists, professionals, or other

technically trained personnel called in to handle emer-

gencies or other temporary operations; extra personnel

72a

on a unit for training; and other personnel temporarily

on a unit for specialized operations, such as construction,

alteration, well logging, or unusual repairs or emergencies.

(c) The Officer in Charge, Marine Inspection, may

determine whether a particular individual or position is

part of the regular complement of a unit. A copy of the

determination is provided to the owner or operator of

the unit affected.

§ 141.20 Exemptions from restrictions on employment.

(a) An employer may request an.exemption from the

restrictions on employment in § 141.15 in order to em-

ploy persons other than citizens of the United States or

resident aliens as part of the regular complement of the

unit under the following circumstances:

(1) When specific contractual provisions or national

registry manning requirements in effect on September 18,

1978 provide that a person other than a citizen of the

United States or a resident alien is to be employed on

a particular unit.

(2) When there is not a sufficient number of citizens

of the United States or resident aliens qualified and

available for the work.

(3) When the President determines with respect to a

particular unit that the employment of only citizens of

the United States or resident aliens is not consistent with

the national interest.

(b) The request must be in writing, identify the provi-

sion of paragraph (a) of this section relied upon, and:

(1) If involving specific contractual provisions under

paragraph (a)(1) of this section, list the persons claimed

exempt and contain a copy of the contract:

(2) If involving persons without an H-2 Visa under

paragraph (a)(2) of this section, list the persons or posi-

tions sought to be exempted; or

73a

(3) If under paragraph (a)(3) of this section, iden-

tify the unit involved and contain any information in sup-

port of the claim.

(c) Requests must be submitted to the Commandant

(G-MVP). U.S. Coast Guard Headquarters, 2100 2nd

Street, SW., Washington, D.C. 20593.

(d) Upon receipt of a request under paragraph (a) (2)

of this section, the Coast Guard seeks information from

the Department of Labor concerning whether there are

citizens of the United States or resident aliens qualified

and available for work. If information is provided that

citizens of the United States or resident aliens are quali-

fied and available, the employer may be required to seek

their employment before the request is approved.

(e) Upon receipt of a request under paragraph (a) (3)

of this section and after consulting with other Federal

agencies aS appropriate, the Commandant forwards the

request and the comments of the Coast Guard and other

interested agencies to the President for determination.

(f) Upon approval by the President for request under

paragraph (a)(3) of this section or by the Coast Guard

for all other requests, the Coast Guard issues a certifica-

tion of the exemption. A certification issued under para-

graph (a)(2) of this section is valid for one year from

the date of issuance.

(g) If, within 30 days of receipt by the Coast Guard

of a request under paragraph (a)(2) of this section, the

Coast Guard does not make a determination or advise

the employer that additional time for consideration is nec-

essary, the request is considered approved for a period

of 90 days from the end of the 30 day period.

(h) A request need not be submitted for persons who

are not citizens of the United States or resident aliens and

who:

T4a

(1) Are employed under the national registry manning

requirements exception in paragraph (a)(1) of this sec-

tion; or

(2) Have been classified and admitted to the United

States as temporary workers under 8 U.S.C. 1101(a)(15)

(H) (ii) for work in a position for which admitted.

75a

APPENDIX G

IMMIGRATION AND NATIONALITY ACT,

8 U.S.C. § 1101 et seq.

§ 1182. Excludable aliens

(a) Classes of excludable aliens

Except as otherwise provided in this chapter, the fol-

lowing describes classes of excludable aliens who are

ineligible to receive visas and who shall be excluded from

admission into the United States:

(1) Health-related grounds.—

(A) In general

Any Alien—

(i) who is determined (in accordance with

regulations prescribed by the Secretary of

Health and Human Services) to have a com-

municable disease of public health significance,

(ii) who is determined (in accordance with

regulations prescribed by the Secretary of Health

and Human Services in consultation with the

Attorney General )—

(1) to have a physical or mental dis-

order and behavior associated with the dis-

order that may pose, or has posed, a

threat to the property, safety, or welfare

of the alien or others, or

(II) to have had a physical or mental

disorder and a history of behavior associ-

ated with the disorder, which behavior

has posed a threat to the property, safety,

or welfare of the alien or others and which

behavior is likely to recur or to lead to

other harmful behavior, or

76a

(iii) who is determined (in accordance with

regulations prescribed by the Secretary of Health

and Human Services) to be a drug abuser or

addict,

is excludable.

ok * ok »

(2) Criminal and related grounds.—

(A) Conviction of certain crimes

(i) In general

Except as provided in clause (ii), any alien

convicted of, or who admits having committed,

or who admits committing acts which constitute

the essential elements of—

(I) a crime involving moral turpitude (other

than a purely political offense), or

(Il) a violation of (or a conspiracy to vio-

late) any law or regulation of a State, the United

States, or a foreign country relating to a con-

trolled substance (as defined in section 802 of

Title 21),

is excludable.

(ii) Exception

Clause (i)(I) shall not apply to an alien who

committed only one crime if—

(1) the crime was committed when the alien

was under 18 years of age, and the crime was

committed (and the alien released from any

confinement to a prison or correctional institu-

tion imposed for the crime) more than 5 years

before the date of_application for a visa or other

documentation and the date of application for

admission to the United States, or

caiman

77a

(II) the maximum penalty possible for the

crime of which the alien was convicted (or

which the alien admits having committed or of

which the acts that the alien admits having com-

mitted constituted the essential elements) did

not exceed imprisonment for one year and, if

the alien was convicted of such crime, the alien

was not sentenced to a term of imprisonment in

excess of 6 months (regardless of the extent to

which the sentence was ultimately executed).

(B) Multiple criminal convictions

Any alien convicted of 2 or more offenses (other

than purely political offenses), regardless of whether

the conviction was in a single trial or whether the

offenses arose from a single scheme of misconduct

and regardless of whether the offenses involved moral

turpitude, for which the aggregate sentences to con-

finement actually imposed were 5 years or more

is excludable.

(C) Controlled substance traffickers

Any alien who the consular or immigration officer

knows or has reason to believe is or has been an

illicit trafficker in any such controlled substance or

is or has been a know‘'ng assister, abettor, con-

spirator, or colluder with others in the illicit traffick-

ing in any such controlled substance, is excludable.

* x * cd

(3) Security and related grounds

(A) In general

Any alien who a consular officer or the Attorney

General knows, or has reasonable ground to believe,

seeks to enter the United States to engage solely,

principally, or incidentally in—

78a

(i) any activity (I) to violate any law of the

United States relating to espionage or sabotage

or (II) to violate or evade any law prohibiting

the export from the United States of goods,

technology, or sensitive information,

(ii) any other unlawful activity, or

(ili) any activity a purpose of which is the

opposition to, or the control or overthrow of,

the Government of the United States by force,

violence, or other unlawful means,

is excludable.

(B) Terrorist activities

(i) In general

Any alien who—

(I) has engaged in a terrorist activity, or

(If) a consular officer or the Attorney

General knows, or has reasonable ground to

believe, is likely to engage after entry in any

terrorist activity (as defined in clause (iii) ),

is excludable. An alien who is an officer, offi-

cial, representative, or spokesman of the Pales-

tine Liberation Organization is considered, for

purposes of this chapter, to be engaged in a

terrorist activity.

(ii) Terrorist activity defined

As used in this chapter, the term “terrorist ac-

tivity” means any activity which is unlawful under

the laws of the place where it is committed (or

which, if committed in the United States, would

be unlawful under the laws of the United States

or any State) and which involves any of the

following:

79a

(1) The highjacking or sabotage of any con-

veyance (including an aircraft, vessel, or

vehicle).

(II) The seizing or detaining, and threaten-

ing to kill, injure, or continue to detain, an-

other individual in order to compel a third per-

son (including a governmental organization) to

do or abstain from doing any act as an explicit

or implicit condition for the release of the in-

dividual seized or detained.

(III) A violent attack upon an internationally

protected person (as defined in section 116

(b) (4) of Title 18) or upon the liberty of such

a person.

(1V) An assassination.

(V) The use of any—

(a) biological agent, chemical agent, or

nuclear weapon or device, or

(b) explosive or firearm (other then for

more personal monetary gain),

with intent to endanger, directly or indirectly, the

safety of one or more individuals or to cause sub-

stantial damage to property.

(VI) A threat, attempt, or conspiracy to do

any of the foregoing.

(iii) Engage in terrorist activity defined

As used in this chapter, the term “engage in

terrorist activity” means to commit, in an indi-

vidual capacity or as a member of an organiza-

tion, an act of terrorist activity or an act which

the actor knows, or reasonably should know, af-

fords material support to any individual, organi-

zation, or government in conducting a terrorist

80a

activity at anytime, including any of the follow-

ing acts:

(1) The preparation or planning of a terrorist

activity.

(II) The gathering of information on poten-

tial targets for terrorist activity.

(IIL) The providing of any type of material

support, including a safe house, transportation,

communications, funds, false identification,

weapons, explosives, or training, to any indi-

vidual the actor knows or has reason to believe

has committed or plans to commit a terrorist

activity.

(IV) The soliciting of funds or other things

of value for terrorist activity or for any terrorist

organization.

(V) The solicitation of any individual for

membership in a terrorist organization, terrorist

government, or to engage in a terrorist activity.

(C) Foreign policy

(i) In general

An alien whose entry or proposed activities in

the United States the Secretary of State has rea-

sonable ground to believe would have potentially

serious adverse foreign policy consequences for

the United States is excludable.

(ii) Exception for officials

An alien who is an official of a foreign govern-

ment or a purported government, or who is a

candidate for election to a foreign government

office during the period immediately preceding

the election for that office, shall not be excludable

or subject to restrictions or conditions on entry

8la

into the United States under clause (i) solely

because of the alien’s past, current, or expected

beliefs, statements, or associations, if such beliefs,

statements, or associations would be lawful within

the United States.

(iii) Exception for other aliens

An alien, not described in clause (ii), shall

not be excludable or subject to restrictions or con-

ditions on entry into the United States under

clause (i) because of the alien’s past, current, or

expected beliefs, statements, or associations, if

such beliefs, statements, or associations would be

lawful within the United States, unless the Secre-

tary of State personally determines that the alien’s

admission would compromise a compelling United

States foreign policy interest.

(iv) Notification of determinations

If a determination is made under clause (iii)

with respect to an alien, the Secretary of State

must notify on a timely basis the chairmen of the

Committees on the Judiciary and Foreign Affairs

of the House of Representatives and of the Com-

mittees on the Judiciary and Foreign Relations of

the Senate of the identity of the alien and the

reasons for the determination.

* * * *