VES-3-06-RR:IT:EC 113942 CC
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