Coastwise; Foreign-Built; Pile Driving; Derrick Barge; 46 U.S.C. App. 883; 46 U.S.C. App. 289; 46 U.S.C. App. 316(a).

HQ 111412 November 28, 1990 VES-3-07 CO:R:P:C 111412 JBW CATEGORY: Carriers Mr. David S. Berry Caicos Corporation 528 Winslow Way West Bainbridge Island, WA 98110 RE: Coastwise; Foreign-Built; Pile Driving; Derrick Barge; 46 U.S.C. App. 883; 46 U.S.C. App. 289; 46 U.S.C. App. 316(a). Dear Mr. Berry: This letter is in response to your request, dated November 19, 1990, for a ruling on the application of the coastwise laws to the use of a non-coastwise-qualified derrick barge in United States waters. FACTS: The Caicos Corporation is a marine general contractor operating in the Puget Sound area of Washington State. Caicos wishes to use a Canadian-built derrick barge as a pile-driver at different points in United States waters. You stated by telephone that the barge, while operating, will be secured to the seabed either by anchors or otherwise. Transportation of workers to and from the barge will likely be made by skiffs under five net tons. ISSUE: Whether the coastwise laws prohibit the use of a foreign- built derrick barge as a pile-driver 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 (Supp. III 1985)(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 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 pile driving operations does not appear to 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 pile driving 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 (1982 & Supp. III 1985). Furthermore, 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. Finally, 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) (West Supp. 1990). You stated that transportation of the work crew will likely be transported from shore to the barge by a power skiff measuring less than five net tons. These vessels would be ineligible for coastwise documentation by the Coast Guard. 46 U.S.C.A. 12102 (West Supp. 1990). Vessels of less than five net tons, however, are not precluded from engaging in the coastwise trade simply because they are ineligible for documentation provided they are otherwise coastwise qualified--that is, United States built and owned. 19 C.F.R. 4.80(a)(2) (1990). HOLDING: The coastwise laws do not prohibit the use of a non- coastwise-qualified barge for pile-driving operations 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. While being moved from work site to work site, the barge may not transport passengers or merchandise. Finally, coastwise-qualified vessels must be used to tow the barge between coastwise points. Sincerely, Harvey B. Fox Director Office of Regulations and Rulings