HQ 112905: Coastwise; Construction; Barge; Crane; Work Platform; 46 U.S.C. app. 883.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 112905

                        November 3, 1993

VES-3-06 CO:R:IT:C  112905 JBW

CATEGORY:  Carriers

William S. Magann
W. F. Magann Corporation
3220 Mariner Avenue
Portsmouth, Virginia 23703

RE:  Coastwise; Construction; Barge; Crane; Work Platform; 46
     U.S.C. app.  883.

Dear Mr. Magann:

     This letter is in response to your inquiry dated September
23, 1993, in which you request a ruling on the application of the
United States coastwise laws to the use of a foreign-built, United
States-flagged construction barge in Puerto Rico and in Guantanamo,
Cuba.

FACTS:

     In your letter, you state that your company is engaged in
marine construction.  You are currently bidding for jobs with the
United States Navy in Cuba and with the Army Corps of Engineers in
Puerto Rico.  Your company was recently awarded a contract to build
a rock breakwater in Aguadilla, Puerto Rico.  You state that you
intend to use in this project a foreign-built barge that is
documented with a United States registry.  While in use at the work
site, the barge will be used as a work platform.  The barge will
also be used to transport construction equipment from your
company's home port in Virginia to the work site and back.  The
barge will not be used to transport construction materials that
will be incorporated in the breakwater.

ISSUE:

     (1)  Whether the coastwise laws prohibit the use of a foreign-
built construction barge in United States waters. 

     (2)  Whether a foreign-built barge may transport construction
equipment between points in United States waters.

 LAW AND ANALYSIS:
     
     The coastwise laws of the United States prohibit the
transportation of merchandise between points in the United States
embraced within the coastwise laws in any vessel other than a
vessel built and documented under the laws of the United States 
and owned by persons who are citizens of the United States. 46
U.S.C. App.  883 (referred to as "the Jones Act").  Generally, the
coastwise laws apply to points within the territorial sea of the
United States, defined as the belt, three nautical miles wide,
seaward of the territorial sea baseline, and to points located in
internal waters, landward of the territorial sea baseline, in cases
where the baseline and the coastline differ.  Headquarters Ruling
Letter 111275, dated November 13, 1990.
The coastwise laws are applicable to the waters of Puerto Rico, 46
U.S.C. app.  877, but are not applicable to the waters of
Guantanamo Bay, Cuba.  Headquarters Ruling Letter 112538, dated
January 15, 1993. 

     The Customs Service has consistently held that a non-
coastwise-qualified vessel used as a moored facility within
territorial and internal waters does not engage in the coastwise
trade and consequently does not violate the coastwise laws, or any
other law administered by the Customs Service, provided that the
vessel remains stationary.  E.g., C.S.D. 89-107, 23 Cust. B. &
Dec., No. 44, 8, 9 (1989).  Thus, the use of a foreign-built,
moored, stationary barge for construction does not violate the
coastwise laws.  If, however, the vessel is not secured or attached
to the seabed while in use, then such operations would be
prohibited by the coastwise laws.

     We note that although the vessel under consideration may not
be engaging in the coastwise trade while in operation as a moored,
stationary construction facility, the vessel itself will become a
coastwise point if used as such.  C.S.D. 89-107.  Therefore, any
vessel moving merchandise or passengers between the stationary
platform and another coastwise point must be documented for the
coastwise trade.  46 U.S.C. App.   289 & 883.  Furthermore, United
States law requires that a coastwise-qualified vessel tow the
vessel under consideration between coastwise points.  46 U.S.C.A.
App.  316(a).

     The 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.  C.S.D.
89-107.  The term merchandise does not include legitimate equipment
and supplies of the barge.  C.S.D. 79-331, 13 Cust. B. & Dec. 1496,
1498 (1979).   The Customs Service has defined equipment to include
portable articles necessary or appropriate for the operation of the
vessel, but not permanently incorporated in or permanently attached
to its hull or propelling machinery.  Id.  We stress that equipment
must be used in conjunction with the barge; construction equipment
merely transported on the barge to the work site and is used
independently from the barge is merchandise subject to the
prohibition.

HOLDING:

     (1)  The coastwise laws do not prohibit the use of a non-
coastwise-qualified barge for construction activities provided that
the barge, while operating, is moored and remains stationary. 
Under such circumstances, the barge becomes a coastwise point
itself.  Transportation of passengers and merchandise to or from
the barge and other coastwise points must be by coastwise-qualified
vessels.  Coastwise-qualified vessels must be used to tow the barge
between coastwise points.  

     (2)  While being moved from the home port to the work site or
from work site to work site, the barge may not transport passengers
or merchandise.  The Customs Service has defined equipment to
include portable articles necessary or appropriate for the
operation of the vessel, but not permanently incorporated in or
permanently attached to its hull or propelling machinery.   
                              Sincerely,




                              Arthur P. Schifflin
                              Chief