Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)

HQ H009551 April 12, 2007 VES-3-02-OT:RR:BSTC:CCI H009551 LLB CATEGORY: Carriers Mr. Ricky Foster Texas Marine Agency, Inc. 1820 Houston Avenue Houston, TX 77007 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Foster: This letter is in response to your correspondence of April 10, 2007, in which you inquire about the coastwise transportation of the individual mentioned therein aboard the PANAM CELESTE. Our decision follows. FACTS The voyage in question involves the transportation of the subject individual, who is currently aboard the non-coastwise-qualified PANAM CELESTE (the “vessel”), from Lake Charles, Louisiana to Port Arthur, Texas and from Port Arthur to Houston, Texas. The subject individual is a Technical Superintendent for Executive Shipping for the owners of the vessel who will be conducting an inspection of the crew and their duties. At the conclusion of the inspection, the subject individual will disembark in Houston on April 14, 2007. ISSUE Whether the individual is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b) LAW AND ANALYSIS The coastwise passenger statute, 46 U.S.C. § 55103 (recodified from former 46 U.S.C. App. § 289; Pub. L. 109-304, October 6, 2006), provides that no vessel may transport passengers between ports or places in the United States either directly or by way of a foreign port, upon a penalty of $300 for every passenger so transported and landed, unless it: (1)is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and (2)has been issued a certificate of documentation with a coastwise endorsement under chapter 121 of Title 46, United States Code, or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. Under the regulations promulgated under the authority of 19 U.S.C. § 55103, a “passenger” is defined as it is under 19 C.F.R. § 4.50(b), which provides that a passenger is “any person carried aboard a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.” See 19 C.F.R. § 4.80a(a)(5). In this regard, persons transported on a vessel would be passengers unless they were “directly and substantially” connected with the operation, navigation, ownership, or business of that vessel itself. See Cust. Bull., Vol. 36, No. 23, p. 50 (June 5, 2002). Customs and Border Protection (CBP) has ruled that if any persons are transported coastwise who are bona fide agents of the line or officers of companies acting as such agents and if such persons while on the voyage are concerned with observing and appraising the facilities offered, such persons…are not ‘passengers’ under section 289 [55103] and § 4.50(b). See HQ 103410 (May 5, 1978)(holding that operations manager of freight line transported coastwise aboard freight line’s vessel to observe vessel’s operational pattern thereby deemed connected with operation and business of vessel so as not to be a passenger when being transported for this purpose); HQ 116752 (Nov. 3, 2006)(executive chef); HQ H004493 (Dec. 20, 2006)(executive vice president of operations). To the extent that the individual would be engaged in any shipboard activities while traveling on the foreign-flagged vessel between coastwise ports that would be "directly and substantially" related to the operation or business of the vessel itself, such individual would not be considered to be a passenger. See HQ 116659 (May 19, 2006)(referencing the "direct and substantial" test). The aforementioned activities satisfy the requisite criteria in this regard. Accordingly, the coastwise transportation of the subject individual for the purposes stated above would not violate 46 U.S.C. § 55103. HOLDING The subject individual is not a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch