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

HQ H027976 May 15, 2008 VES-3-02-OT:RR:BSTC:CCI H027976 JLB CATEGORY: Carriers Mr. Aaron D. Leatherwood Vessel Lifecycle Management Maersk Line, Ltd. One Commercial Place, 20th Floor Norfolk, Virginia 23510-2103 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Leatherwood: This letter is in response to your email correspondence dated May 9, 2008, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard a non-coastwise-qualified Maersk Line vessel constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS Maersk Line, Ltd. wishes to place four Department of Defense contractors aboard a Maersk vessel in order to conduct container tracking testing. The individuals will mainly be transported between Newark, Norfolk, Charleston, and Houston. While the embarkation and disembarkation dates have not yet been set, they will take place between May 18, 2008 and July 18, 2008 and will be reported in advance. Specifically, the Department of Defense contractors will be performing a maritime tracking concept study to determine the best communication solutions for container tracking. While the vessel is transiting the U.S. coast, the contractors will be conducting a two-part radio-frequency test to survey commercial transport procedures. The study will analyze existing maritime and terrestrial communication systems including reviewing GPS, and the radio-frequency performance of commercial wireless devices that use cellular, radio-frequency identification (“RFID”), wireless local-area network and satellite communications frequency signals. The contractors are analyzing these communication systems for existing solutions and new technologies to enable tracking of containers flowing into and out of areas of national security interest. 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 The coastwise passenger statute, former 46 U.S.C. App. § 289 recodified as 46 U.S.C. § 55103, pursuant to P.L. 109-304 (October 6, 2006), states that no foreign vessel shall transport passengers “between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port,” under a penalty of $300 for each passenger so transported and landed. See also 19 C.F.R. § 4.80(b)(2). 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. Under 46 U.S.C. § 55103, a “passenger” is any person carried aboard a vessel “who is not connected with the operation of the vessel, her navigation, ownership, or business.” See also 19 C.F.R. § 4.50(b). In this regard, U.S. Customs and Border Protection (“CBP”) provides a protectionist interpretation of “passenger” defining the term as persons transported on a vessel unless they are "directly and substantially" connected with the operation, navigation, ownership or business of that vessel itself. See Customs Bulletin of June 5, 2002, Vol. 36, No. 23, at pp. 50. Pursuant to Headquarters Decision 101699, dated November 5, 1975, it is well settled that "workmen, technicians, or observers transported by vessel between ports of the United States are not classified as ‘passengers’ within the meaning of section 4.50(b) and section 289 [now section 55103] 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." See also Headquarters Decision 116721, dated September 25, 2006. In Headquarters Ruling Letter H023315, dated February 14, 2008, CBP held that scientific technicians do not constitute “passengers” when they are traveling aboard to determine background radiation emitted by the vessel as part of a study performed to ascertain abnormal levels of radiation in the event of a terrorist attack involving the use of radioactive materials in accordance with a security contract with the Department of Defense. See also Headquarters Ruling Letter H020608, dated December 7, 2007. In the present case, you propose to transport the subject individuals coastwise to conduct a maritime tracking concept study. Specifically, the Department of Defense contractors will be collecting data by performing a two-part radio-frequency test on commercial shipping containers to ensure that containers can be tracked flowing into and out of areas of interest for national security purposes. These activities do connect the individuals “directly and substantially” with the business, operation, and navigation of the vessel itself. To the extent that the subject individuals would be engaging in any shipboard activities while traveling on the foreign vessel between coastwise ports, they would be "directly and substantially" related to the operation, business, or navigation of the vessel during the voyage and would not be considered passengers under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of these individuals would not be in violation of 46 U.S.C. § 55103. 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