THE IMPORTANCE OF THE CONVENTION ON THE LAW OF THE SEA TO THE MISSIONS OF THE U.S. COAST GAURD. Coast Guard Focus Issue

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1 Coast Guard Focus Issue The Summer 2008 edition of the ABA Homeland Security and National Defense newsletter highlights one of the unique federal agencies in the United States due in great part to its multifaceted mission areas that have historically, and continue, to evolve. Unlike most agencies which have specified roles and jurisdictions shared with other agencies shore side, the Coast Guard is the primary federal agency with a wide array of responsibilities in inland waterways regime and in the offshore maritime regime. Not only does it have broad maritime law enforcement authority to enforce almost any U.S. law offshore, but it also has primary jurisdictional authority in many mission areas beyond what the Coast Guard has traditionally been most famous for to the average American: its search and rescue capabilities. The Coast Guard's fundamental roles include: 1) safety: to minimize deaths, injuries and property damage associated with maritime transportation, fishing and recreational boating; 2) national defense: for years it has been one of the five armed forces of the United States and is often called in to support military operations worldwide; 3) maritime commerce: to facilitate maritime commerce and eliminate impediments to the efficient movement of goods and people; 4) protection of natural resources: minimizing environmental damage and the degradation of natural resources associated with maritime transportation, fishing and recreational boating; 5) maritime law enforcement and security: to protect America's maritime borders by halting the flow of illegal drugs, aliens and contraband into the United States; preventing illegal fishing, suppressing violations of federal law in the maritime arena; and after 9/11, protecting the United States against threats of terrorism at our maritime borders. The evolving operational and legal challenges facing the Coast Guard in carrying out its day-to-day activities are as challenging as any other agency, if not overwhelming at times. The articles contained in the Summer 2008 edition touch upon key legal issues in many of these important mission areas, including the Law of the Sea Convention, ports and waterways safety and environmental protection, abandoned seafarers and LNG imports. Indeed, we can all learn a little more about the legal challenges facing any of our activities in the offshore maritime environment. -- Jon K. Waldron, Washington, D.C., Blank Rome LLP. Inside: Where the U.S. Coast Guard Intersects with Immigration, by Jacquelyn P. Maroney, p. 2 Will We Continue to Abandon the Abandoned? by Captain Charles D. Michel, p. 2 Energy, Security and Environmental Law, by George Weller and Andrew Turner, p. 3 The Hawaii Superferry, by Commander Andrew Norris, p. 6 THE IMPORTANCE OF THE CONVENTION ON THE LAW OF THE SEA TO THE MISSIONS OF THE U.S. COAST GAURD JOHN T. OLIVER It is remarkable when such often divergent voices as the Bush Administration, virtually all congressional Democrats, environmental groups, the intelligence community, the fishing, shipping, and telecommunications industries, the Joint Chiefs of Staff, the oil and gas industry, the U.S. Chamber of Commerce, labor organizations, and nearly every international policy expert all come together to strongly support the United States becoming party to an international agreement. But that is the case with the 1982 U.N. Convention on the Law of the Sea (the Convention). The Convention is now in force for 155 States worldwide, but, unfortunately, not yet for the United States. However, there is now an open window of opportunity for the United States to regain its natural leadership position in the development of the international law of the sea while promoting many of our critical national security interests. This window has not always been open. When President Reagan considered the Convention in 1982, he wisely identified several unacceptable provisions concerning the new regime of deep seabed mining. However, he also stated that the United States would comply with the remaining provisions, because they reflected an appropriate balance of interests and clearly contributed to America s well being. Many of our allies agreed with this approach and, working together, in 1994, we were successful in correcting the objectionable provisions. However, despite President Clinton s forwarding to the Convention and Implementing Agreement to the Senate in 1994, a 19-0 vote of the Senate Foreign Relations Committee (SFRC) in (Continued on p. 9)

2 THE OUTER CONTINENTAL SHELF: WHERE THE U.S. COAST GUARD INTERSECTS WITH IMMIGRATION JACQUELYN P. MARONEY The U.S. Coast Guard s intersection with U.S. immigration law is not widely known outside the energy industry. The Coast Guard, however, rather than the U.S. Citizenship and Immigration Service, is the Department of Homeland Security agency involved in authorizing foreign citizens to work on the outer Continental Shelf (OCS) of the United States. The OCS is comprised of the submerged lands, subsoil, and seabed in a specified zone up to 200 nautical miles or more offshore from U.S. coasts. Although the Coast Guard controls whether foreign citizens may work on the OCS, foreign citizens wishing to travel to the United States to work on the OCS need a particular U.S. business visitor visa issued by the U.S. Department of State. The Department of State issues such visas only after the Coast Guard has determined that foreign citizens are authorized to engage in the specific OCS activities proposed by the visa applicant s employer. The OCS is subject to federal jurisdiction and control. 43 USC 1331(a); 43 USC 1332(1). The Immigration and Nationality Act, however, does not extend to the OCS. United Ass n of Journeyman AFL-CIO v. Reno, 73 F.3d 1134 (D.C. Cir. 1996). Instead, the Outer Continental Shelf Lands Act (OCSLA), as amended in 1978, provides a framework for who may work on the OCS and draws a distinction between U.S. citizens and U.S. legal permanent residents (i.e. green card holders) and foreign citizens. But for specified exceptions in the OCSLA, all units operating on the OCS must employ only U.S. citizens or U.S. legal permanent residents. 43 USC The Coast Guard has issued regulations under the OCSLA requiring that vessels, rigs, platforms, or other vehicles or structures used in regulated OCS operations, such as exploration, development, and production of minerals, be manned or crewed only by U.S. citizens or U.S. legal permanent residents. (Continued on p. 12) WILL WE CONTINUE TO ABANDON THE ABANDONED? CAPTAIN CHARLES D. MICHEL Despite fifteen years of unprecedented prosperity in the shipping industry and the existence of international guidelines designed to prevent abandoning seafarers, ships crews are still abandoned in ports around the world. Between 1990 and 2006, approximately 1,000 ships with 150,000 crew members were reported abandoned. Just since 2004, more than fifty incidents of abandonment were reported to the International Maritime Organization (IMO) and International Labor Organization (ILO), and the actual number is widely believed to be substantially underreported. Crew members continue to be abandoned in foreign ports without food or water, the means to get home or their earned wages. Abandonment is often a calculated economic decision by a shipowner faced (Continued on p. 13) ABA Section of Administrative Law and Regulatory Practice Michael Asimow, Chairman Committee on Homeland Security and National Defense Lynne K. Zusman James P. Gerkins Jason Klitenic George A. Koenig James T. O Reilly Co chairs: Joe D. Whitley Vice-chairs: Laurence Storch Joel A. Webber Mary Kate Whalen Hon. Alexander P. White The Homeland Security and National Defense Newsletter is sponsored by the ABA Section of Administrative Law and Regulatory Practice, Committee on Homeland Security and National Defense. The views expressed in this publication are not necessarily those of the Committee, the Section, the ABA or any governmental agency or private enterprise. Correspondence regarding the newsletter should be addressed to the Editor: Laurence Storch, Fulbright & Jaworski L.L.P., 801 Pennsylvania Ave., NW, Washington, D.C., lstorch@fulbright.com Copyright 2008 American Bar Association, ISSN

3 LNG IMPORTS: A HOLISTIC APPROACH TO NAVIGATING THE INTERSECTION OF ENERGY, SECURITY AND ENVIRONMENTAL LAW GEORGE A. WELLER & ANDREW J. TURNER A significant and growing proportion of the U.S. energy supply arrives by vessel. The U.S. imports nearly 60% of the oil it uses. And while crude oil imports have increased by approximately 25% over the past decade, LNG deliveries have increased by 115% in just the last five years. 1 Multiple regulatory regimes apply with a view to ensuring LNG is imported safely, securely, and in an environmentally protective manner consistent with international law. The objectives and provisions of these regulatory regimes vary, but a comprehensive approach at the outset can simultaneously meet many of the requirements at substantial time and cost savings. For example, actions which protect a vessel from security risks can also carry safety and environmental protection benefits consistent with maritime and international law requirements. Key elements of a successful approach include early recognition of stakeholders and interests, active communication and coordination and identification and resolution of issues. This article briefly explores the intersection of these areas of regulatory law and opportunities for a comprehensive approach to one form of energy shipment: LNG. Background Liquefied natural gas (LNG) is natural gas cooled to a liquid state, which facilitates transport and storage by reducing the space the gas occupies by a factor of 600. About three-fourths of global natural gas reserves are located in the Middle East and Eurasia. LNG is shipped in large, specially designed tankers exceeding 900 feet in length. Upon an LNG vessel s arrival at a shore-side or offshore terminal, the LNG is typically regassifed and then delivered through a network of pipelines to local distribution companies or independent power plants. Growth in LNG demand is a result of, among other things, the relatively higher price of oil and the relatively lower CO2 emissions of LNG. Consequently, applications to build many new LNG onshore and offshore terminals have been received by the various federal regulatory agencies involved. Concerns are frequently voiced over the safety and security of LNG, however, by groups opposed to a proposed project or terminal in their neighborhood, the so-called not in my backyard (NIMBY) objection. The holistic approach outlined here can help overcome these objections and successfully navigate the jurisdiction of the several agencies involved in permitting, siting and regulating the safety, security and environmental protection of a proposed project. Interplay of the Agencies Regulatory Framework As a general matter, the Coast Guard regulates the operation of LNG vessels in U.S. waters, as well as the design, construction and manning of those vessels. The offshore approaches are subject to regulation by the Coast Guard and International Maritime regimes, while inland waterways are generally regulated by the Coast Guard and the Corps of Engineers. Once an LNG vessel reaches its destination within the U.S., jurisdiction over subsequent LNG operations is divided among several agencies including the Coast Guard, the Maritime Administration (MARAD) (for deepwater ports), the Federal Energy Regulatory Commission (FERC) (for shoreside terminals), and the Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA) (for pipelines). The various federal agencies coordinate their regulation of LNG facilities under memoranda of understanding. The construction and operation of LNG import facilities, and the site of their location, require approval by FERC under the Natural Gas Act. 2 The 1 See generally MARAD, U.S. Water Transportation Statistical Snapshot (May 2007); After enactment of the Natural Gas Act in 1938, natural gas was regulated by both federal and state governments. The import and export of natural gas was regulated by the Federal Power Commission under the NGA. In 1977 the functions of the FPC transferred to the Department of Energy, and regulatory authority 3

4 safety and security of the movement of hazardous materials by pipeline is regulated by PHMSA. For shoreside facilities that receive LNG imports, PHMSA generally has responsibility for the shoreside portion of the facility, while the Coast Guard has responsibility for the facility s waterside marine transfer area. 3 LNG may also be delivered to deepwater ports beyond state waters. The Coast Guard and MARAD share regulatory jurisdiction over deepwater ports under the Deepwater Port Act. MARAD is the license issuing authority. MARAD and the Coast Guard work jointly on the development of environmental reviews, and the Coast Guard has primary jurisdiction over design, equipment, operations and security requirements. 4 The Coast Guard, MARAD, FERC, the Corps of Engineers, NOAA, the EPA and other agencies have entered an MOU on review of deepwater port applications. Coast Guard regulations governing the design, construction, manning and operation of vessels that deliver LNG closely parallel international requirements, but are more stringent in certain areas (such as allowable stress factors for certain types of tanks). 5 LNG vessels in international service must comply with the major maritime treaties adopted by the IMO. 6 LNG vessels are also subject to specific over imported gas was delegated to the Federal Energy Regulatory Commission. 3 Coast Guard regulation of the marine transfer area under 33 C.F.R. Part 127 includes electrical power systems, lighting, communications, transfer hoses and piping systems, gas detection systems and alarms, firefighting equipment, and operations and emergency procedures. 4 Coast Guard regulations for Deepwater Ports are at 33 C.F.R. Part Before operating in the United States, foreign flag LNG carriers must submit detailed vessel plans and other information to the Coast Guard to establish that the vessels have been constructed to the standards required by Coast Guard regulations. After plan review and on-site verification by Coast Guard marine inspectors, the vessel is issued a Certificate of Compliance indicating it has been found in compliance with applicable design, construction and outfitting requirements. The vessel will then be subject to annual examination by Coast Guard marine inspectors for regulatory compliance. 6 Examples include the International Convention for the Safety of Life at Sea (SOLAS), the International Convention for the Prevention of Pollution from Ships (MARPOL), and the security requirements implemented under the Magnuson Act 7 and the Ports and Waterways Safety Act, 8 such as special vessel traffic control measures implemented during port transits or approaches, safety zones to prevent other vessels from approaching nearby, escorts by patrol craft, and coordination with other federal, state and local agencies. Federal actions involving the delivery of LNG by vessel are also subject to the interplay of multiple environmental laws. For example, a vessel calling at an East Coast LNG terminal will likely pass through waters home to species protected under the Endangered Species Act, such as the North Atlantic right whale. 9 LNG and other vessels are subject to multiple forms of protection designed to prevent ship strikes of right whales, including a 500-yard approach restriction and reporting requirements. Vessels transiting right whale areas are advised by NOAA and the Coast Guard via broadcast Notice to Mariners to proceed at a slow, safe speed, and NOAA has proposed a rule that would require ships over 65 feet in length (subject to certain exceptions) to slow to 10 knots or less consistent with safety of navigation. Marine facilities, vessels and maritime personnel are also subject to security requirements implemented by the Coast Guard under the Maritime Transportation Security Act of 2002 (MTSA). In contrast to Coast Guard safety jurisdiction, which extends to the marine transfer area of a facility, Coast Guard security regulation can encompass an entire facility. The Coast Guard facility regulations promulgated under MTSA require LNG terminal operators to conduct a facility security assessment and develop a security plan that addresses the risks identified in the assessment. 10 Coast Guard security regulations for International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code) U.S.C. 191 et seq U.S.C et seq. 9 The slow-moving right whale occurs in coastal waters along the Atlantic seaboard, and ship strikes are considered one of the two primary threats to the species posed by man. 10 The facility security plan establishes access control measures, security measures for cargo handling and delivery, surveillance and monitoring, security communications, security incident 4

5 LNG vessels parallel the International Ship and Port Facility Security (ISPS) Code, adopted by the International Maritime Organization (IMO) under the SOLAS Convention. 11 Under the ISPS Code, an LNG vessel must have an International Ship Security Certificate (ISSC) issued by or on behalf of its flag state. To receive an ISSC, the vessel must develop and implement a security plan that, among other things, establishes access control measures, security measures for cargo handling and delivery, surveillance and monitoring, security communications, security incident procedures and training and drill requirements. On-shore facilities receiving LNG vessels are subject to FERC approval of siting, construction and operation. FERC approval, like many of the described regulatory actions, is subject to environmental review. One element of reviewing an application to place or expand an LNG terminal is the environmental impact of associated LNG vessel traffic. There, as in many instances, the respective roles of the agencies are critical. FERC regulates the construction and operation of LNG import facilities, and the site of their location; conducts environmental, safety and security reviews of LNG facilities; and is the Lead Federal Agency for environmental review purposes. FERC does not, however, regulate the vessels calling on those facilities. Prior to submitting an application to FERC, applicants submit to the Coast Guard a letter of intent and a waterway suitability assessment outlining impacts of LNG operations on the port, including transportation of LNG to the receiving facility and LNG transfer operations at the facility, identifying security threats and safety hazards to LNG transportation to the facility, and listing risk management measures. The Coast Guard then issues Letters of Recommendation on the suitability of the waterways for LNG vessel traffic. 12 Beyond issuing Letters of Recommendation, the Coast Guard is authorized by law to establish measures for limited, controlled or conditional access and activity. When the Coast Guard exercises such authorities, its actions may be separately subject to review under the National Environmental Policy Act, the Endangered Species Act and the Coastal Zone Management Act commensurate with the scope of that action. Finally, as a cooperating agency for NEPA purposes and an advisor on safety and security matters, the Coast Guard provides input to FERC on environmental impacts and safety and security matters related to waterway use by LNG vessels. Ultimately, it is FERC that determines whether to grant a license to construct and operate an LNG facility. The interplay of Coast Guard, MARAD, Corps of Engineers, PHMSA and FERC authorities are just a few examples of the types of safety, security and environmental issues that arise in the connection with LNG imports. However, it is obvious to even the casual observer that navigating that framework calls for a synergistic approach. Opportunities for Synergy Opportunities for taking an effective holistic approach are greatest at the outset of project design and regulatory review. Waters and maritime activities often fall under overlapping, bordering and/or sequential jurisdictions. Understanding jurisdictional interrelationships can be key to developing effective strategies. Different issues call for different approaches. For example, addressing endangered species affected by transiting vessels has significant national and international components, while addressing transit impacts on nearby wetlands would be primarily a matter of local concern. A successful approach will include: (a) ensuring relevant agencies and stakeholders are communicating and coordinating their efforts early; (b) identifying broader strategies that may satisfy procedures and training and drill requirements. See 33 C.F.R. Part C.F.R. Part Notably, a Coast Guard LOR is a recommendation. It is not directed to the LNG vessel owners or operators that would transit the waterway at issue, but instead provides a recommendation to the owner or operator of the facility and to the state and local government agencies having jurisdiction, as to the suitability of the waterway for LHG or LNG marine traffic. The purpose of an LOR is to inform broader siting determinations by the applicant and agencies with jurisdiction from the standpoint of waterway suitability. 5

6 multiple objectives, such as vessel transit plans that account for security, safety and environmental concerns of various federal agencies and other interests; and (c) identification of the interrelationship of international, federal, state and local requirements. George A. Weller, senior counsel, Office of Maritime & International Law, United States Coast Guard, Washington, D.C. Andrew J. Turner, Chief of General Law, United States Coast Guard, Washington, D.C. The views expressed herein are solely those of the authors and should not be construed as those of the United States Coast Guard or any other entity. THE HAWAII SUPERFERRY: CONSTERNATION, AGITATION AND LITIGATION COMMANDER ANDREW J. NORRIS The Story* *Much of this section is taken from the affidavit of Captain Charles Ray, acting District Commander at the time of the incidents described. This affidavit was substantially drafted and/or edited by the author, and was attached to the government s brief in response to a lawsuit brought against the Coast Guard (discussed infra). The Hawaii Superferry ALAKAI is a 349-foot long passenger vessel documented by the U.S. Coast Guard with an endorsement for coastwise trade, certified for large passenger vessel service in the United States, and operated by Hawaii Superferry, Inc. (HSF). Built to provide Hawaii's first interisland vehicle-passenger service, the ALAKAI launched its inaugural service from Oahu to the islands of Maui and Kauai on August 26, Her voyage between Oahu and Maui on that initial date was uneventful. However, such was not the case with her later voyage between Oahu and Kauai. Upon arrival in Nawiliwili Harbor, Kauai, a federally maintained waterway, she was greeted by nearly 40 swimmers and demonstrators on kayaks and surfboards, who were blocking Nawiliwili Harbor s entrance in an effort to obstruct her passage into Kauai. Other demonstrators ashore on the harbor jetty threw rocks and bottles at Coast Guard personnel who were conveying detained protesters to shore. The Coast Guard was eventually able to clear the channel for the ALAKAI's arrival, permitting the ALAKAI to safely dock. On the following day, August 27, 2007, the ALAKAI again sailed to and from Maui without incident; but when she arrived at Kauai around 6:00 p.m., approximately 70 demonstrators again entered the water to obstruct the channel entrance, thereby preventing the ALAKAI from docking. Due to the difficulty of maneuvering in the small area of Nawiliwili Harbor, and in the interest of ensuring the safety of the protesters, the ALAKAI s master chose not to enter the channel until the Coast Guard cleared the channel of protesters. However, because the vessel remained outside the harbor, and because the protesters did not approach within 100 yards of the vessel, the existing security zone for large passenger vessels (see 33 C.F.R ) did not provide the Coast Guard with the authority to control protestor entry into Nawiliwili Harbor or clear the channel of protesters. After waiting for three hours, and with nearly 20 demonstrators still in the water actively blocking the ALAKAI, the ALAKAI s master made the decision to return to Oahu without mooring in Kauai. As a result of the events of the previous two days, and facing ongoing state court litigation over the ferry s ability to lawfully utilize state harbor improvements necessary for her operation, HSF voluntarily suspended service both to Maui and Kauai on August 28, HSF s goal, however, was to resume service between Oahu and Kauai as soon as possible. At the time, there were no state court injunctions or other legal devices preventing HSF from resuming operations between Oahu and Kauai. Responding to these unexpected events, the Coast Guard s District Commander in Hawaii issued a temporary fixed security zone in Nawiliwili Harbor on August 31, This emergency rulemaking designated significant portions of the waters of Nawiliwili Harbor as a security zone, activated for enforcement 60 minutes before the ALAKAI s arrival into the zone through 10 minutes after its departure from the zone. Entry into the security 6

7 zone, without permission to be there, was prohibited. Thus, while activated, this security zone provided the Coast Guard with the authority to prevent persons and vessels from endangering themselves and the ALAKAI s passengers and crew by attempting to impede the vessel s passage after it commenced the difficult transit into the harbor. The security zone extended to certain land areas around Nawiliwili Harbor, including the jetty from which obstructers had entered the water and assaulted Coast Guard personnel on August 26th. Not included in the waters of the security zone were two regions of the harbor, including one region immediately adjacent to the harbor entrance that was accessible from the most popular beach in Nawiliwili Harbor. These areas of the harbor which were not included in the security zone were completely accessible to anyone who desired to enter the water, and were fully visible to observers ashore, at the ALAKAI mooring facility, aboard the ALAKAI while she transited the harbor, and from the air. The Litigation On September 19, 2007, while the ALAKAI continued to remain idle after HSF s August 28th suspension of operations, a diverse group of 22 plaintiffs filed a Complaint for Declaratory Relief, Temporary Restraining Order, Preliminary Injunction and Permanent Injunction in the District Court of Hawaii against George W. Bush, Michael Chertoff (Secretary of the Department of Homeland Security), Admiral Thad Allen (Commandant of the Coast Guard) and Rear Admiral Sally Brice-O Hara (Commander, Fourteenth Coast Guard District). In supporting affidavits, the plaintiffs alleged that they would experience harm if the ALAKAI was to resume operations to Kauai, mostly in the nature of non-specific environmental harm the ALAKAI would cause, and non-specific effects she would have on the island. As grounds for their requested relief, the plaintiffs asserted the following challenges to the emergency security zone that was issued on August 31, 2007: The Coast Guard had no authority to issue a security zone in this case, since the waterborne obstruction tactics did not endanger national security, constitute a terrorist act or otherwise trigger Magnuson Act authority; The Coast Guard violated the Administrative Procedure Act (APA) by adopting a rule without first providing notice and an opportunity to comment, and by making the rule effective immediately upon publication in the Federal Register; The rule was fatally defective because there was no effective date within the rule itself; The rule impermissibly impacted the First Amendment rights of superferry protesters; and The Coast Guard violated the National Environmental Protection Act (NEPA) by categorically excluding the rule from the requirement of conducting an environmental assessment. The government responded with a brief of its own that contested the assertions made by the plaintiffs, and also argued that none of the plaintiffs had standing. Oral arguments were scheduled for, and held on, October 5, 2007, before Chief United States District Judge Helen Gillmor. The Judge s Ruling After hearing oral arguments, the judge issued a written order on October 9, 2007, denying plaintiffs motion for a temporary restraining order. The judge ruled that plaintiffs lacked standing to sue, and also failed to show a likelihood of success on the merits of their claims, or of the possibility of irreparable injury. In determining that plaintiffs lacked standing, the court noted that 14 of the 22 named plaintiffs did not claim to be recreational users of Nawiliwili Harbor, nor did they assert any other direct harm that they might experience if the security zone was to be activated. With regard to the eight plaintiffs who did claim to be recreational users of Nawiliwili Harbor, whose ability to recreate might be affected if the zone was activated and certain waters of the harbor thereby placed off limits, the judge noted that none of these plaintiffs alleged that they had availed themselves of the opportunity provided for in the regulation to request individual approval to use the 7

8 waters of the security zone when the zone was activated. Thus, the judge ruled that none of the plaintiffs had standing to sue. In an abundance of caution, however, the court reviewed the merits of plaintiffs claims, as they raise important Constitutional questions. With regard to the merits of the case, the judge ruled as follows: The Magnuson Act (50 U.S.C. 191 et seq) permitted the Coast Guard to adopt a security zone in Nawiliwili Harbor under the circumstances of this case, since the act authorized adoption of regulations... to safeguard against destruction, loss or injury from sabotage or other subversive acts, accidents or other causes of similar nature, vessels, harbors, ports and waterfront facilities in the United States. Despite the lack of standard notice and comment, the rule survived an APA challenge, since the Coast Guard had good cause to issue the regulation at issue on an emergency basis namely the avowed intention of the company to resume service to Kauai as soon as possible, and the avowed intention of would-be obstructers to take to the waters if and when the ALAKAI sailed to the island. The security zone survived First Amendment challenge, as it was content neutral; narrowly tailored, both in terms of geographic extent and period of activation and provided ample opportunity for effective expression through its designation of two areas of the harbor waters that were open for free use by anyone, at any time. The Coast Guard correctly determined that the regulation at issue was categorically excluded from the need for additional NEPA analysis, since the litany of potential harmful consequences cited by plaintiffs humpback whale strikes, introduction of invasive species, etc. are all products of superferry operation, the independent acts of a private The Aftermath company, and not of the creation and enforcement of the regulation. It is impossible to over-emphasize the importance of this case, and of this favorable decision at the trial court level, to the Coast Guard. This legal challenge went directly to the heart of some of the service s basic authorities and tools tools that are used hundreds of times per year to ensure, for example, that high value vessels navigating in our waters are shielded by protective no-entry zones; that boater safety is safeguarded through the creation of no-entry zones in the vicinity of firework displays, air shows and the like; and that vessels of all types are prohibited from approaching too close to sunken wrecks, floating debris, dangerous cliffs or any other of the myriad hazards to marine safety that can and do arise. The ability to create and enforce security zones and closely related safety zones, often on very short notice in response to emergency events, is essential to the Coast Guard s mission of promoting the safety of life at sea. On October 9, 2007, plaintiffs filed a Notice of Appeal to the Ninth Circuit Court of Appeals. That court, in an order dated January 4, 2008, construed the issue before it as an appeal of the trial judge s denial of a preliminary injunction. Despite the fact that the security zone at issue expired on October 31, 2007, without ever actually having been activated, the fact that the Coast Guard issued substantially similar successor temporary security zones in Nawiliwili Harbor and indicated its intent to do so again should the superferry ever attempt to sail to Kauai, led the court not to dismiss the appeal on mootness grounds. Both sides have submitted briefs and oral argument before the Ninth Circuit has not yet been scheduled. With regard to the superferry itself, state court issues kept the ferry idle from August 28 until mid- December. Operations to Maui resumed on December 13, 2007, and, with various interruptions due to weather, vessel repairs and the like, the ALAKAI has sailed to Maui on a daily basis without incident since then. Twice-daily rounds trips to Maui on certain days of the week began on May 9, HSF is constructing a second superferry, which it 8

9 intends to operate between Oahu and the Big Island of Hawaii. Delivery of this vessel is scheduled for There are no plans yet for a return to Kauai. The new chief executive officer of HSF has indicated that the superferry would only resume service to the island if it was invited to do so by community leaders there. If an invitation was issued, and the superferry again sailed to Kauai in response to the invitation, it is not clear at this point whether all potential obstructers would accept or feel bound by the invitation. New security zones and waterborne obstructions may yet occur; if they do, there may well be a need for a rest of the story article in the future! Commander Andrew J. Norris, United States Coast Guard, Staff Judge Advocate, Fourteenth Coast Guard District, Honolulu, Hawaii. THE IMPORTANCE OF THE CONVENTION ON THE LAW OF THE SEA TO THE MISSIONS OF THE U.S. COAST GAURD (Continued from p. 1) 2004, President Bush s emphatic call to join the Convention in May 2007, and the 17-4 vote of the SFRC in October 2007, the full Senate has not yet voted on the Convention. For many reasons, the time has now come for the United States to accede to this foundational Convention. This article will focus on how the Convention will better enable the Coast Guard to carry out its many critical missions. Becoming a party to the Convention would greatly enhance the functioning of our national security apparatus. U.S. military forces, including Coast Guard units, rely heavily on the freedom of navigation and overflight principles codified in the Convention. Under the current legal regime, the United States is not guaranteed such rights. While there is a strong argument that transit passage and archipelagic sealanes passage have become established rights under customary international law, not all States agree. Moreover, neither of these critical navigational rights exists under any of the four 1958 Geneva conventions on the law of the sea, to which the United States continues to be bound. Becoming a party to the 1982 Convention will supersede our obligations under the 1958 conventions and will ensure our global mobility rights. The navigation principles in the Convention would allow U.S. and allied forces to use the world s oceans to meet challenging national security requirements, including those necessary to fight the Global War on Terrorism. Stephen J. Hadley, President Bush s National Security Advisor, wrote to the Senate last year to request that it take positive action on the Convention as soon as possible, arguing, among other things, that the Convention s navigational provisions were essential to the effective implementation of the National Strategy for Maritime Security. The Joint Chiefs of Staff wrote the Senate Foreign Relations Committee in June 2007: From sustaining forward deployed military forces, to ensuring the security of our ports and waters as well as advancing our most important economic and foreign policy objectives, it is important that the United States becomes a party to the Convention. Our national maritime strategy has long required world-wide mobility. Such global outreach requires undisputed access through, under, and over international straits, such as the Strait of Malacca, and archipelagic waters, such as Indonesia. The Convention guarantees each of these critically important concepts. Likewise, the ability to operate and conduct exercises in international waters beyond the territorial sea is a great benefit to our global mobility. Coast Guard units patrol the Persian Gulf, the Caribbean Sea, and every ocean. The Convention provides a legal and policy framework for the Coast Guard to interdict maritime terrorists, pirates, illicit drug traffickers, and illegal immigrants, both in our own waters and in the seas beyond. The Convention also ensures that our warships and Coast Guard cutters will enjoy sovereign immune status wherever in the world they may be operating. The Convention also directly promotes the mission of the U.S. Coast Guard to protect and manage the living and non-living resources of those portions of the ocean in which the Convention recognizes the sovereign rights of the United States. Consistent with our long-standing negotiating goals, the Convention maintains the right balance between the exclusive 9

10 interests of all countries to exercise sovereign rights over the economic resources and activities off their coasts with the inclusive interests of all countries to ensure freedom of navigation, military operations and exercises, and overflight in international waters. The Convention gives coastal States the right to manage their fisheries and off-shore oil and gas resources within the 200-nautical mile exclusive economic zone (EEZ), and secure sovereign rights over resources on and under an extended continental shelf beyond 200 miles. The United States has the largest and richest EEZ in the world. Moreover, our extended continental shelf has enormous potential in yet-to-be-discovered oil and gas reserves, particularly in the Gulf of Mexico, Bering Sea, and Arctic Ocean. Recent discoveries last summer by the USCG icebreaker Healy reveal that the U.S. continental shelf in the Arctic Ocean is much more extensive than originally thought. Only by becoming party to the Convention and participating in its processes can the United States obtain secure title to these vast resources. Moreover, no American business enterprise is likely to invest the many billions of dollars necessary to develop an off-shore oil or gas field, no matter how rich it might be, unless it has an undisputed right to do so under both domestic and international law. The Convention s deep seabed mining provisions, as amended in 1994, allow American businesses to pursue free-market-oriented approaches to seabed mining. As a result, the offshore oil and gas and mining industries strongly support the Convention. The Convention also directly promotes the key mission of the U.S. Coast Guard to help protect and preserve the marine environment. In negotiating Part XII, the U.S. delegation achieved the best possible conventional framework to enable cooperative measures to protect the oceans from all sources of marine pollution. The Convention wisely apportions appropriate rights and responsibilities among flag States, port States, and coastal States. It also provides for measures to combat illegal, unreported, and unregulated (IUU) fishing. It permits coastal and flag States, acting in conjunction with the International Maritime Organization (IMO) and other competent groups, to take positive steps to control pollution without adverse impacts on global navigation. The Convention represents an extraordinary negotiating success by the United States and its allies. As a result, a broad range of environmental groups are now calling for immediate accession to the Law of the Sea Convention by the United States. The Convention would also promote the Coast Guard s law-enforcement mission. Excessive territorial sea claims interfere with narcotics interdiction efforts. Several critical non-party States claim territorial seas of 200 nautical miles, in violation of the Convention s 12-nm limit. These countries see our law-enforcement operations in their claimed territorial seas as violations of their sovereignty and are either reluctant or refuse to cooperate with proposed actions against vessels interdicted in these disputed areas. Since we are not party to the Convention, it is very difficult for us to argue that they must abide by the Convention and give up these excessive claims. The net result is that counter-drug bilateral agreements with these nations are difficult, interdiction efforts in their claimed territorial seas are hampered, and our negotiating ability to change the situation is compromised. Admiral Thad Allen, the Commandant of the Coast Guard, and the four previous Commandants have strongly advocated becoming party to the Convention, largely because it would promote the Coast Guard s law-enforcement mission. Another mission of the Coast Guard is to promote safe and secure international trade. The Convention promotes the freedom of navigation and overflight by which international shipping and transportation help supercharge the global economy. Ninety-five percent of global trade travels on and over the world s oceans and seas. By guaranteeing merchant vessels and aircraft their right to navigate on, over, and through international straights, archipelagic waters, and coastal zones, the Convention promotes dynamic international trade. It reduces costs and eliminates delays that would occur if coastal States were able to impose the restrictions on such navigational rights that existed prior to the Convention. At the same time, the Convention encourages international cooperation to enhance the safety and security of all ocean-going ships. Whether it involves lumber and winter wheat en route from the Pacific Northwest to Japan, high-quality, low-cost goods shipped from 10

11 Singapore to Long Beach, or oil from the Persian Gulf to Europe, free, safe, and secure commercial navigation provides great benefits to all of us. That is the key reason the U.S. Chamber of Commerce, shipping industry, and other trade groups have called for accession to the Convention. The Convention would greatly enhance the global leadership position of the United States in maritime affairs, an area in which the Coast Guard plays a vital role. Many States have excessive claims with respect to baselines, bays, territorial seas, straits, and navigational restrictions which, in the opinion of the United States, are not permissible under the Convention. As a non-party, our ability to dispute or adjudicate these excessive claims is severely inhibited. Failure to accede to the Convention will materially interfere with our ability to improve maritime governance, a major part of our Strategy for Maritime Safety, Security, and Stewardship. Our non-party status is an obstacle that we must overcome in developing virtually any new multilateral maritime instrument. For example, States seeking to join the Proliferation Security Initiative (PSI) often question our non-party status. Likewise, while the United States has long played a key role in the IMO to promote maritime safety and efficiency and to protect the marine environment, our leadership position is being undermined by our current outsider status. As a non-party, the United States has no seat at the table in matters concerning the Convention. The United States does not have a judge on the Law of the Sea Tribunal nor a decision maker on the Continental Shelf Committee. And despite the fact that the 1994 Agreement guarantees the United States a permanent seat on the International Seabed Authority (ISA) and a veto on all key decisions of that body, as a nonparty, we cannot play that role. In article after article, the Convention reflects diplomatic victory after victory for the United States. However, as a nonparty, we cannot take advantage of these benefits. One of the key reasons that the congressionally mandated U.S. Commission on Ocean Policy unanimously called for the United States to accede to the Convention was to regain its ocean policy leadership position. In contrast to the nearly unanimous support from the nation s military and intelligence leaders, ocean policy experts, business, trade, oil and gas and mining industries, environmental groups, and legal associations, a small coterie of strident opponents have echoed a number of badly flawed arguments against the Convention. In responding to those arguments, John Norton Moore, who served as ambassador for the law of the sea negotiations under Presidents Nixon and Ford, and Lawrence Eagleburger, Secretary of State under President Reagan, recently co-authored an article in support of the Convention that responded to and rejected these myths. They concluded: Foreign policy issues deserve debate, but not shameful distortions. Rather than diminishing U.S. sovereignty, the Convention would greatly expand it. Rather than restricting our ability to operate at sea, the Convention would guarantee it. Rather that constraining the development of oil, gas, and other minerals from the continental shelf and deep seafloor, the Convention would encourage and protect such investments. Critics have alleged that the Convention would restrict our military and intelligence operations. After conducting several classified and unclassified hearings from intelligence and legal experts, the Senate s Select Committee on Intelligence concluded in a letter to the SFRC in September 2007 that the Convention would have no adverse impact on American intelligence collection or other intelligence activities. As Senator Lugar, ranking minority member of the Foreign Relations Committee, recently argued, it would be unprecedented for the Senate to deny to our nation s national security leadership a tool that they have unanimously claimed that they need, especially during a time of war. The Coast Guard has many critical missions to perform in ocean space. If the United States were to join the Convention, it could complete these important missions better. The window of opportunity to accede to the Convention is now wide open let s us, as a nation, recognize the wisdom of becoming a party to the Convention and seize the benefits that will accrue. 11

12 John T. Oliver, Attorney-Advisor, Office of Maritime and International Law, Headquarters, United States Coast Guard. THE OUTER CONTINENTAL SHELF: WHERE THE U.S. COAST GUARD INTERSECTS WITH IMMIGRATION (Continued from p. 2) 43 USC 1356(a). There are three pertinent exceptions to these manning requirements. The manning requirements do not apply if the Coast Guard determines that (i) there are insufficient U.S. citizens and U.S. legal permanent residents qualified and available for such work; (ii) the President of the United States makes a specific finding, with respect to a particular vessel, rig, platform, vehicle or structure, that the application of the manning requirements in such instance is inconsistent with national interest; or (iii) the vessel, rig, platform, vehicle or structure is over 50% owned or effectively controlled by foreign citizens and the nations of those foreign citizens do not implement national manning requirements in their offshore areas. 43 USC 1356(c). In practice, Coast Guard exemptions from the OCS manning requirements commonly arise in connection with foreign-owned or controlled vessels. The energy industry s wish to efficiently move vessels and personnel from prospect-to-prospect across international boundaries frequently gives rise to the request for foreign vessels and foreign citizens to work on the OCS. If a vessel is over 50% owned or effectively controlled by foreign citizens, and the nations of those foreign citizens do not implement national manning requirements in their offshore areas, then the vessel is prospectively eligible for an exemption from the OCS manning requirements. With a valid exemption from the Coast Guard, an exempt vessel may utilize foreign citizens as part of the regular complement of the unit when operating on the OCS. 43 USC 1356(c)(2); 33 CFR 141.5(b)(3). In this manner, the Coast Guard essentially makes immigration-related determinations in authorizing foreign citizens to work offshore U.S. coasts. An applicant seeking a foreign ownership or control exemption from the OCS manning requirements must submit its request to the Coast Guard s headquarters in Washington, D.C. 33 CFR 141.5(c). The exemption request must demonstrate to the satisfaction of the Commandant of the Coast Guard that the subject vessel is over 50% owned or effectively controlled by foreign citizens and is otherwise statutorily eligible for the exemption. U.S. Coast Guard Navigation and Vessel Inspection Circular No (Aug. 7, 1984). In evaluating whether applicants satisfy these requirements, the Coast Guard considers operational control of the unit, management responsibility, title, lease and charter arrangements, and financial interest. 33 CFR 141.5(d). Although there is no application form or filing fee, there is an informal Coast Guard checklist that serves as a guide in analyzing eligibility for an exemption. An adequately documented exemption request typically contains information and documentation including the following: OCS project scope; personnel list(s); vessel information; agreements regarding the chain of vessel ownership and control; public trading and registration documents for companies in the chain of ownership; and an affidavit stating the identity and nationality of the officers and directors of companies in the chain of ownership and control. Applicants should also research and include a statement disclosing any offshore national manning requirements implemented by the nations of the foreign citizens that own and/or effectively control the vessel. 43 USC 1356(a)(3). As vessel ownership and control can be complex and involve foreign citizens and entities from numerous nations, the information and documentation supporting a request can take considerable time to gather. The Coast Guard typically indicates that its processing time on an exemption request is sixty days, but in practice the Coast Guard often analyzes requests and issues determinations more quickly. Exemptions granted by the Coast Guard based on a vessel s foreign ownership or control are valid to the extent the information and materials submitted regarding the vessel ownership and control and pertinent national manning laws remain unchanged. The Coast Guard must be notified immediately if there is a change in ownership or control of a vessel, so that the Coast Guard can determine whether the change alters the applicability of the exemption. 12