Words which are bold italics are my emphasis
My personal comments are in red italics
PART 141—PERSONNEL
Authority: 43 U.S.C. 1356; 49 CFR 1.46(z).
Source: CGD 78–160, 47 FR 9379, Mar. 4, 1982, unless otherwise noted.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. 8103 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. 7102 and 8103 for officers and crew on federally subsidized 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 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, development, or production of oil or gas in its offshore areas.
The term "right effectively control" is how the Norwegian owners of vessel like the OLYMPIC INTERVENTION IV, REM COMMANDER or SIEM SWORDFISH access for their vessels to work on the OCS on a quasi permanent basis. Although the vessels are on longterm time charter to companies like Oceaneering which are US companies, the owners are saying that because the vessels are only chartered and not owned by the US companies that they are not controlled by them. This is not the intent of what is meant by the term since the movements of the vessels, the jobs they do and the marketing of them to the industry is determined by the charterer not the owner. The owners and the masters of those vessels have turned effective control over to the charter.This term "right effectively control" is one which has not been defined in this CFR and needs to be through action taken in Federal Court if necessary because if effective control is determined to rest with the charterer, then in order to keep their vessels in the Gulf of Mexico, the owners of those vessels will have to replace their foreign mariners with Americans and that will mean hundreds of high paying jobs for US nationals! Money which will stay in the US as opposed as going back to Norway!
(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.
Here is the provision for someone (actually, anyone) to challenge what "effective control" means. Nobody has taken this step but it must be taken and soon.
(d) In determining whether ownership or a right effectively to control exists, the Commandant may consider operational control of a unit, management responsibility, title, lease and charter arrangements, and financial interests.
Right here is the provision which will define that effective control rests with a charterer!
(e) The owner or operator of any unit affected is notified of the Commandant's determination.
§ 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 company, 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 incorporated 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 company, or association, one in which more than 50% of 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 incorporated 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 majority 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 Nationality Act of 1952, as amended, 8 U.S.C. 1101(a)(20).
§ 141.15 Restrictions on employment.
(a) Each employer of personnel on any unit engaged in OCS activities 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 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 emergencies or other temporary operations; extra personnel 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 employ 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.
This one is being utterly abused by companies like Veolia who own the KINGFISHER operate her in the Gulf of Mexico but have a foreign crew running her. The level of proof to show that there is a lack of "qualified and available" mariners is so low as to be virtually non existant! These companies are running ads for positions they already have filled with foreign people and have no intention of replacing. Note on Rigzone the next time Veolia runs ads for all marine personnel...you will see that they do so just about every three months and you know that they are not replacing the entire crew of thier ship that often.
The standard used to determine that there are not enough qualified and available mariners must be made much harder for the vessel owners to meet!
(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 provision 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 positions sought to be exempted; or
(3) If under paragraph (a)(3) of this section, identify the unit involved and contain any information in support of the claim.
(c) Requests must be submitted to the Commandant (G-MOC), 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 qualified and available, the employer may be required to seek their employment before the request is approved.
There is absolutely no provision for public comment on the issuance of these letters. There must be some method put into place to publish their application in the Federal Register to allow outsiders the right to express that they are qualified and available. That would shut the issuance of these waiver letters down flat and thus many more positions will become available to US mariners,
(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 certification of the exemption. A certification issued under paragraph (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 necessary, 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:
(1) Are employed under the national registry manning requirements exception in paragraph (a)(1) of this section; 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.
I believe that everything needed is already in place to mount a legal challenge to the loopholes allowing all the waivers. All someone has to do is take that step and file a complaint in Federal Court!