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June 6, 1994

HQ 113008

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


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.


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.


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.


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.

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.


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.


Arthur P. Schifflin

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