HQ 113008: Coastwise transportation; Launch barge; Platform jacket; Outer continental shelf; 46 U.S.C. App. 883; Proviso

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.

                           June 6, 1994





                            HQ 113008


VES-3-CO:R:IT:C  113008 LLB

CATEGORY:  Carriers

Mr. Matthew D. Eisele
Vinson and Elkins
1001 Fannin
Houston, Texas 77002-6760

RE:  Coastwise transportation; Launch barge; Platform jacket;
     Outer continental shelf; 46 U.S.C. App. 883; Proviso

Dear Mr. Eisele:

     Reference is made to your ruling request regarding the
proposed transportation of a platform jacket from a coastwise
point to a point on the Outer continental shelf at which there is
a fixed installation as defined in law.  You request confirmation
that the proposed movement would not be in contravention of the
merchandise transportation statute, popularly known as the Jones
Act.

FACTS:

     It is proposed that a launch barge be employed in the
movement of a platform jacket from a point in the United States
to a point on the Outer continental shelf.  The platform jacket
is a deepwater type of new design, and its weight exceeds the
launch capacity of those coastwise-qualified launch barges which
have been identified by the Secretary of Transportation as
residing in the Inventory of U.S. Launch Barges.  The barges
available for the proposed movement each have a launch capacity
of 12,000 long tons or more, and all were built prior to June 7,
1988.  Each of the launch-capable barges either is or will be
documented under the laws of the United States.

ISSUE:

     Whether a platform jacket may be legally transported between
points embraced within the coastwise laws on a foreign-built,
United States-documented launch barge built before June 7, 1988,
and having a launch capacity of at least 12,000 long tons.




                           - 2 -                        


LAW AND ANALYSIS:

     The coastwise law pertaining to the transportation of
merchandise, section 27 of the Act of June 5, 1920, as amended
(41 Stat. 999; 46 U.S.C. App. 883, often called the Jones Act),
provides that:

          No merchandise shall be transported by water,
          or by land and water, on penalty of forfeiture
          of the merchandise (or a monetary amount up to
          the value thereof as determined by the Secretary
          of the Treasury, or the actual cost of the trans-
          portation, whichever is greater, to be recovered
          from any consignor, seller, owner, importer,
          consignee, agent, or other person or persons
          so transporting or causing said merchandise to 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 other           vessel than a vessel built in and documented
          under the laws of the United States and owned
          by persons who are citizens of the United         States... 
     
     The coastwise laws generally apply to points in the
territorial sea, defined as the belt, three nautical miles wide,
seaward of the territorial sea baseline, and to points located in
the internal waters, landward of the territorial sea baseline, in
cases where the baseline and the coastline differ.  These laws
have also been interpreted to apply to transportation between
points within a single harbor. 

     Under Section 4(a) of the Outer Continental Shelf Lands Act
of 1953, as amended (43 U.S.C. 1333(a) (OCSLA)), the laws of the
United States are extended to the subsoil and seabed of the Outer
Continental Shelf and to all artificial islands, and all
installations and other devices permanently or temporarily
attached to the seabed, which may be erected thereon for the
purpose of exploring for, developing, or producing resources
therefrom to the same extent as if the Outer Continental Shelf
were an area of exclusive Federal jurisdiction located within a
State.      
   








                              - 3 -


     Section 883 was amended by the Act January 11, 1988 (Pub. L.
100-239), to provide that:

          ...the transportation of any platform jacket
          in or on a launch barge between two points in
          the United States, at one of which there is
          an installation or other device within the
          meaning of section 1333(a) of Title 43, shall
          not be deemed transportation subject to this
          section if the launch barge has a capacity of
          12,000 long tons or more, was built as of
          June 7, 1988, and is documented under the
          laws of the United States, and the platform
          jacket cannot be transported on and launched
          from a launch barge of lesser capacity that
          is identified by the Secretary of
          Transportation and is available for such
          transportation.

     The factors presented in this matter satisfy all stated
statutory criteria for approval of the proposed transportation. 
As a starting point, it is clear that unless excepted by the law,
the use of a coastwise-qualified launch barge would be required. 
As previously stated, the necessary carrying capacity of the
barge exceeds that of any identified as required under law by the
Transportation Department, and those available as otherwise
unqualified substitute vessels meet all legal requirements. 
Absent other factors, there is no question that approval for the
transportation should be granted. 

     Additionally, however, Customs is requested to rule that
since the design of the platform jacket is dependent upon the
characteristics of the launch barge selected for transportation,
any barge identified as capable and available by the Department
of Transportation subsequent to the initiation of detailed design
work on the new platform jacket (identified either for the first
time or as a result of recalculation of carrying capacity),
should be considered as unavailable for this transportation.

     It is the position of Customs that the Department of
Transportation is charged under the law to make determinations as
to the availability of vessels.  It is not within the purview of
Customs to set the parameters for such determinations.  All we
will rule upon is, that if at the time the transportation is to
transpire it is determined by the Department of Transportation
that no fully qualified vessels are available, the use of an
alternative vessel as proposed above would not be a violation of
the Jones Act.




                              - 4 -


HOLDING:

     The use of a United States-flag, non-coastwise-qualified
launch barge to complete the transportation as described in the
Law and Analysis portion of this ruling is permissible under the
terms of 46 U.S.C. App. 883, as amended, so long as the requisite
statutory findings regarding vessel availability have been made
by the Department of Transportation.

                                  Sincerely,




                                  Arthur P. Schifflin
                                  Chief
                                  Carrier Rulings Branch