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HQ 114273

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March 3, 1998

VES-3-RR-IT-EC 114273 GEV

CATEGORY: CARRIER

Gordon C. Gardner II
Contracts Manager
West Coast Cleaning and Preservation
South Bay Sandblast and Tank Cleaning, Inc. 1920 Una Street
San Diego, California 92113

RE: Coastwise Trade; Stationary Barge; 46 U.S.C. App. ? 883

Dear Mr. Gardner:

This is in response to your letter dated March 3, 1998, regarding the proposed use of your barge KC-251. Our ruling on this matter is set forth below.

FACTS:

The barge KC-251 is a U.S.-flag, registry-endorsed, non-self-propelled barge your company uses for the transferring of slops from a ship. You state that during such an operation, slops are transferred from a ship to the barge and then from the barge to your company's trucks which transport them for disposal. While the transferring operations are taking place, the barge is tied to a pier and only used as a holding tank from which to off-load the slops to the aforementioned trucks.

ISSUE:

Whether the use of a non-coastwise-qualified barge as a stationary holding tank within U.S. territorial waters as described above constitutes a violation of 46 U.S.C. App. ? 883.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, ? 883 (46 U.S.C. App. 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 one that is coastwise-qualified (i.e., U.S.-built, owned and documented). Pursuant to title 19, United States Code, ? 1401(c) (19 U.S.C.?1401(c)), the word "merchandise" is defined as "...goods, wares and chattels of every description, and includes merchandise the importation of which is prohibited."

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 internal waters, landward of the territorial sea baseline, in cases where the baseline and the coastline differ.

With respect to the use of barge KC-251 as described above, we note that the Customs Service has consistently held that a non-coastwise-qualified vessel used as a moored facility within territorial waters is not considered to be engaged in the coastwise trade and consequently does not violate the coastwise laws, or any other navigation law administered by the Customs Service, provided it remains stationary. (See e.g., C.S.D. 89-107, 23 Cust. B. & Dec., No. 44, 8, 9 (1989). If, however, the vessel is not stationary while in use, then such operations would be prohibited by the coastwise laws.

Accordingly, the barge KC-251 may be used during the slop transfer operations you propose without running afoul of the coastwise laws.

HOLDING:

The use of a non-coastwise-qualified barge as a stationary holding tank within U.S. territorial waters described above does not constitute a violation of 46 U.S.C. App. ? 883.

Sincerely,

Jerry Laderberg

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