Stationary barge; Coastwise trade; 46 U.S.C. App.  883

HQ 113942 June 27, 1997 VES-3-06-RR:IT:EC 113942 CC CATEGORY: Carriers Yader A. Bermudez Senior Construction Engineer Department of Transportation Toll Bridge Seismic Retrofitting Program 111 Grand Avenue P.O. Box 23660 Oakland, CA 94623-0660 RE: Stationary barge; Coastwise trade; 46 U.S.C. App.  883 Dear Mr. Bermudez: This letter is in response to your request of May 8, 1997, concerning the use of non-coastwise-qualified barges for construction activity. FACTS: You state that the California Department of Transportation has initiated a large construction program to "earthquake retrofit" all toll bridges in California. You anticipate a shortage of barges in the United States for use by contractors and subcontractors participating in this construction program. Consequently, contractors may need to use foreign barges as stationary construction staging, and use coastwise-qualified barges to transport construction materials between the stationary construction staging and designated available ports. ISSUE: Whether the coastwise laws are violated when non-coastwise qualified barges are used as stationary construction platforms in U.S. territorial waters. LAW AND ANALYSIS: 46 U.S.C. App.  883, the coastwise merchandise statute often called the "Jones Act," provides in part that no merchandise shall be transported between points in the United States embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. The Customs Service has held that the use of a non-coastwise-qualified vessel as a moored facility does not violate the coastwise laws, or any other law administered by the Customs Service, provided that the vessel remains stationary. If the vessel is not secured or otherwise moves while in use, then such operations would be a violation of the coastwise laws. Customs has held, however, there is no coastwise violation if the vessel is being loaded or unloaded and must be moved to another location because of stress of weather or other reason involving the vessel's safety, and is subsequently returned to the same point to continue its loading or unloading, and neither loads not unloads merchandise at any other point in the United States. See, e.g., C.S.D. 89-107, and Headquarters Ruling (HQ) 112695, dated August 31, 1993. Although the vessels will not be engaging in coastwise trade while in operation as stationary work facilities, such vessels, by being anchored within territorial waters, would themselves become coastwise points. Consequently, any vessel moving merchandise or passengers between a moored barge and another coastwise point (in either direction), must itself be documented for the coastwise trade. In addition, the stationary barge itself may not have any passengers or merchandise aboard during its initial movement to the work site, during its movement from work site to work site, or during its movement following the completion of the project, provided these sites are points subject to the application of the coastwise laws. See C.S.D. 89-107 and HQ 112695. HOLDING: A non-coastwise qualified barge may be used as a moored stationary work platform within the territorial waters of the United States without violating the coastwise laws, provided that it transports neither passengers nor merchandise while under tow between coastwise points. Sincerely, Jerry Laderberg Acting Chief Entry and Carrier Rulings Branch