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

HQ H031835 June 26, 2008 VES-3-02-OT:RR:BSTC:CCI H031835 JLB CATEGORY: Carriers Ms. Nora Pasca Norton Lilly International 249 E. Ocean Blvd., Ste. 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 correspondence dated June 25, 2008, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the M/V APL PHILIPPINES constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified M/V APL PHILIPPINES (“the vessel”). The four individuals will embark on June 27, 2008 at Long Beach, California and will disembark at the port of San Francisco, California on June 29, 2008. The individuals will travel aboard the vessel, as part of APL, Ltd. management, to conduct security awareness and cargo control training. This 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. You state that 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. Additionally, you state that the vessel security topics addressed will 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. 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 strict 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 the present case, the four individuals would be traveling aboard the non-coastwise-qualified vessel to conduct security awareness and cargo control training as described above. CBP has previously held that, under the exact facts presented, the individuals are “directly and substantially” related to the operation and business of the vessel during the voyage and are not considered “passengers” under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). See Headquarters Ruling Letter H024344, dated March 10, 2008; Headquarters Ruling Letter H025430, dated April 3, 2008. Consequently, the coastwise transportation of the subject individuals is not 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