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

HQ H025430 April 3, 2008 VES-3-02-OT:RR:BSTC:CCI H025430 LLB CATEGORY: Carriers Ms. Nora Pasca Norton Lilly International 249 E. Ocean Blvd., Suite 200 Long Beach, California 90802 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Ms. Pasca: This letter is in response to your undated correspondence which this office received on March 31, 2008. In your correspondence, you inquire about the coastwise transportation of the two individuals mentioned therein aboard the M/V APL THAILAND. Our decision follows. FACTS The voyage in question involves the transportation of the subject individuals currently aboard the non-coastwise-qualified M/V APL THAILAND ("the vessel") from Long Beach, California to Oakland, California. The individuals are being transported aboard the vessel, as part of APL, Ltd. management, to conduct security awareness and cargo control training. The training constitutes a fulfillment of APL Ltd.'s obligations as a signatory to Customs-Trade Partnership Against Terrorism ("C-TPAT") and the Sea Carrier Initiative. The cargo monitoring/control training will include topics such as securing and monitoring above deck containers, cargo climate conditioning below decks including air changes and ventilation while underway, temperature monitoring, hazardous cargos and fire prevention. In addition, the vessel security topics that will be covered include access and restrictions to vessels and cargo areas of the vessel, sealing of containers, and inspections of the cargo and the vessel to identify nonconforming elements and TSA/TWIC access rules. The individuals are expected to disembark in Oakland on or about April 5, 2008. ISSUE Whether the individuals described above would be "passengers" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b)? LAW AND ANALYSIS Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be "coastwise qualified." The coastwise laws generally apply to points in the territorial sea, which is 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. See 33 C.F.R. § 2.22(a)(2)(2007). The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 551031 which provides: (a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. (b)Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed. The Customs and Border Protection ("CBP") Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business. 19 C.F.R. § 4.50(b). You state that the subject individuals are being transported on the vessel for the purpose of conducting a security awareness and cargo control training as described above. In this context, and in accordance with previous Headquarters' rulings, workmen, technicians, or observers transported by vessel between ports of the United States are not classified as "passengers" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. In the present case, to the extent the individuals are engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, that would be "directly and substantially" related to the operation or business itself, as would be the case under the facts herein submitted, such individuals would not be considered passengers.2 We find that such individuals are not "passengers" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103.3 HOLDING The subject individuals are not "passengers" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch 1 Recodified by Pub. L. 109-304, enacted on October 6, 2006. 2 See HQ 116721, supra; and see HQ 116659 (May 19, 2006) (referencing the "direct and substantial" test); see also, e.g., Customs telex 104712 (July 21, 1980) (finding that repairman were not passengers when carried aboard a foreign vessel between U.S. ports "for [the] purpose of repairing vessel en route between such ports."); see also, HQ H024344 (Mar. 10, 2008) (holding that individuals transported for the purpose of conducting security awareness and cargo control training were not passengers within the meaning of 46 U.S.C. § 55103). 3 We note that our determination is based only on the voyage as it is described in the "FACTS" section herein.