Christopher Hannan

Since October 2011, when the Bureau of Safety and Environmental Enforcement (BSEE) issued its first-ever Incidents of Non-Compliance (INCs) against offshore contractors (Halliburton and Transocean) in the wake of the DEEPWATER HORIZON blowout, the offshore industry and BSEE have been engaged in a literal “war of words” over a simple question of statutory and regulatory construction: does BSEE’s authority under the Outer Continental Shelf Lands Act (OCSLA) and the regulations promulgated thereunder extend to offshore contractors?  This blog has followed the pitched battles along the way, from the first volley of BSEE’s initial issuance of the INCs to Halliburton/Transocean, through its continuing sorties under its self-proclaimed jurisdiction over contractors across the OCS, and (most recently) its checkered retreat into the appellate court after two different district courts rejected its positions and sided with offshore contractors. (more…)

Following up on its landmark 2014 decision in Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276 (5th Cir. 2014), previously reported here on Striding the Quarterdeck, which concerned the applicability to tankerman of the seaman exclusion to the overtime wage provisions of the Fair Labor Standards Act (29 U.S.C. §§201-21, “FLSA”), the Fifth Circuit has held in Halle v. Galliano Marine Serv., L.L.C., — F.3d —, 2017 WL 1399697 (5th Cir. Apr. 19, 2017) that remotely operated vehicle (ROV) technicians aboard offshore oilfield support vessels are not seaman for purposes of the FLSA, and thus are entitled to overtime pay as provided in the FLSA. Unlike the result in Coffin, in which tankerman (crew members responsible/trained for loading/unloading of liquid cargoes from tank barges) were held to be FLSA seaman and thus exempt from from the overtime coverage of the FLSA, the ROV technicians in Halle were held to be non-seaman and thus entitled to overtime. (more…)

Once your comrades have rowed you beyond those creatures I cannot advise you of the best course to take. I will tell you the choice, but you must decide. One leads to sheer cliffs, against which green-eyed Amphitrite hurls her vast roaring breakers, the blessed gods call them the Wandering Rocks. Not even birds can pass between them unscathed, not even the timorous rock-doves that bring ambrosia to Father Zeus. The slippery rock always takes one, and Zeus must send another to complete their number. Crews that reach the rocks can never escape, instead ships’ timbers and human corpses are tossed by the waves or in gushers of cruel fire.

-Homer, Odyssey Book XII, trans. A.S. Kline (more…)

In a sweeping move that has been widely and vociferously praised by supporters and passionately decried by opponents, the Customs and Border Patrol Agency (CBP) on the second-to-last day of the Obama administration’s tenure, issued a “General Notice” in its weekly “Customs Bulletins and Decisions” publication (dated January 18, 2017) proposing the in globo revocation of prior CBP (and/or its predecessor entities’) rulings – some specified in the Notice, others merely generally referenced – issued over the last nearly forty years concerning the coastwise carriage of oilfield equipment/materials (i.e. from U.S. ports to coastwise points on the Outer Continental Shelf (OCS)) by foreign-flagged, non-Jones Act/non-coastwise eligible vessels in the Gulf of Mexico oilfield. This proposed change, which hinges on whether such equipment/materials qualify as “vessel equipment” under applicable regulations and prior CBP rulings, would affect what has developed over the years into a niche fleet of specialized foreign flag vessels used in the Gulf of Mexico for deepsea and subsea construction and maintenance projects – i.e. pipelay vessels, heavy-lift vessels, and IRM (inspection/repair/maintenance) vessels used for construction/decommissioning of offshore facilities, laying/maintenance of pipelines, and similar deep-water projects. (more…)

Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the fourth, concerning safety systems.

Perhaps one of the most confounding and critical areas of overlap between the USCG and BSEE has been in the competing/complementary Safety and Environmental Management System (SEMS) regulations issued by BSEE at 30 C.F.R. Subchapter B, Subpart S and the USCG’s general vessel safety regulations throughout 46 C.F.R. and – more particularly – the Safety Management System regulations issued at 33 C.F.R. Subchapter F, which apply to many vessels operating on the OCS (pursuant to 46 U.S.C. §§3201 et seq.).  Whether a vessel operator might have to comply with both BSEE’s SEMS regulations and/or the USCG’s separate (potentially conflicting) safety regulations and/or SMS requirements has always presented a potential compliance conundrum.  In fact, the USCG has even formally suggested (via a notice of proposed rulemaking) simply adopting BSEE’s SEMS regulations for all “vessels engaged in OCS activities” in an effort to avoid this conundrum. (more…)

Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the third, concerning incident reporting.

Hand in glove with the civil penalties and SEMS/SMS MOUs (the latter to be discussed in the last post in this series) – each of which focuses on specifically divvying up the shared regulatory spaces between the USCG and BSEE – the agencies have made an effort in the third of the January 2017 MOUs to formalize the in-the-field application of these newly divvied-up responsibilities by formalizing each agency’s incident investigation responsibilities.  (more…)

Following on this week’s series regarding the new batch of four USCG-BSEE MOUs, this post will discuss the second, concerning oil spill planning, preparedness and response.

The second of the January 17, 2017 MOUs concerns oil spill response on the OCS, and in this regard supersedes a prior MOU entered in April 2012.  That said, the January 17, 2017 more or less tracks the April 2012 MOU, with various updates based on the agencies’ experiences since 2012 and with the most substantial updates appearing in a newly added section regarding “Oil Spill After Action Reviews.”

This PPP MOU sets up (yet another) matrix defining which agency has spill response authority for certain types of OCS assets (i.e. fixed v. floating facilities, MODUs, FPSOs, etc.) and for what phase of the response (i.e. planning, preparedness, response, source control). (more…)

For the past few years, this blog has attempted to chart the fraught and developing regulatory overlap between the United States Coast Guard (USCG) and Bureau of Environmental Enforcement (BSEE) in the fallout from the DEEPWATER HORIZON disaster and ensuing  ramped up regulatory action on the Outer Continental Shelf (OCS).  As part of these increased regulatory enforcement efforts, the USCG and BSEE entered a series of Memoranda of Understanding (MOUs) in the months and years following the April 2010 DEEPWATER HORIZON blowout in an attempt to circumscribe each agency’s distinct sphere of authority.  These MOUs, however, left many gray areas and blurred lines as to whether one entity – or both – may hold sway on certain enforcement issues, none of which is good for a technologically complex and constantly evolving industry that requires precision in order to ensure compliance.

As part of the continued effort toward the (arguably) “white whale” goal of establishing a “One Gulf, One Standard” approach to regulating the OCS, the USCG and BSEE recently entered four additional MOUs (effective January 10, 2017) in an effort to “increase collaboration, clarify responsibilities, and streamline information sharing.”  This post will be followed by a series in the coming days that will provide a brief discussion of each of these MOUs. (more…)

“And there’s a mighty difference between a living thump and a dead thump.”
Moby Dick, Herman Melville

In a dramatic reversal of a prior and equally dramatic, watershed administrative decision of the Interior Bureau of Land Appeals (IBLA) upholding the Bureau of Safety and Environmental Enforcement’s (BSEE) regulatory jurisdiction over offshore contractors on the Outer Continental Shelf, the United States District Court for the Western District of Louisiana has overturned the IBLA’s ruling and stripped BSEE of that jurisdiction.  Island Operating Co. v. Jewell et al., Case No. 16-145 (W.D. La. Dec. 23, 2016).  Thus, under the Island Operating decision, BSEE may no longer wield what this blog has previously described as “the universal thump [it has previously] passed around” on offshore contractors; it has been rendered, at least for now, a “dead thump.” (more…)