Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); "Cruise-to-Nowhere"; 19 C.F.R. § 4.80a; HQ H014892 (Aug. 17, 2007); HQ 113379 (Mar. 23, 1995); Sales Representatives; HQ 116659 (May 19, 2006); HQ 116668 (July 25, 2006); HQ H020448 (Dec. 13, 2008); HQ H023116 (Feb. 22, 2008); HQ H013701 (July 10, 2007); HQ H002925 (Nov. 8, 2006); HQ 109695 (Nov. 3, 1988); HQ H008038 (Mar. 9, 2007).

HQ H039535 October 23, 2008 VES-3-02 OT:RR:BSTC:CCI H039535 LLB Category: Carriers Mr. Leon Sutcliffe Director, Port Operations Carnival Cruise Lines 3655 NW 87 Avenue Miami, Florida 33178-2428 Re: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); "Cruise-to-Nowhere"; 19 C.F.R. § 4.80a; HQ H014892 (Aug. 17, 2007); HQ 113379 (Mar. 23, 1995); Sales Representatives; HQ 116659 (May 19, 2006); HQ 116668 (July 25, 2006); HQ H020448 (Dec. 13, 2008); HQ H023116 (Feb. 22, 2008); HQ H013701 (July 10, 2007); HQ H002925 (Nov. 8, 2006); HQ 109695 (Nov. 3, 1988); HQ H008038 (Mar. 9, 2007). Dear Mr. Sutcliffe: This letter is in response to your correspondences of September 23, and October 15 and 16, 2008, in which you inquire about the coastwise transportation of Carnival Cruise Lines' (CCL) sales team, aboard the M/S CARNIVAL SPLENDOR. Our decision follows. FACTS The voyage in question involves the transportation of the subject individuals, CCL's sales team, aboard the non-coastwise-qualified M/S CARNIVAL SPLENDOR (the "vessel") from San Francisco, California to San Pedro, California. You have provided the following itinerary: March 21, 2009 CCL sales team embarks in San Francisco March 22, 2009 First group of travel agents embark for "Fun Day" at sea-- vessel transits to a point at least 12 miles off the coast of San Francisco. March 23, 2009 First group of travel agents disembark at the same point where they embarked in San Francisco--vessel transits to San Pedro. March 24, 2009 Vessel arrives San Pedro. Second group of travel agents embark for "Fun Day" at sea--vessel transits to a point at least 12 miles off the coast of San Pedro. March 25-26, 2009 At sea March 27, 2009 Second group of travel agents disembark at the same point where they embarked in San Pedro. CCL sales team disembarks. As indicated above, the sales team is expected to embark in San Francisco on March 21, 2009 and disembark in San Pedro on or about March 27, 2009. The general purpose stated for the transportation of the sales team is to host two travel agent promotional cruises for the vessel in which CCL will have a “cruise-to-nowhere”. In addition, sales training sessions will be conducted during the transit to San Pedro. The two separate groups of travel agents will transit according to the itinerary above. ISSUES 1. Whether the use of a non-coastwise qualified vessel for the cruise itinerary as it relates to the transportation of the travel agents described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. 2. Whether the CCL sales team described in the FACTS section above are “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)(2008). The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 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). Issue 1 Although not specifically made a subject of the ruling request, we recognize the potential for certain issues to arise regarding the transportation of the travel agents during the proposed voyage. In its administration of 46 U.S.C. § 55103, U.S. Customs and Border Protection has ruled that the carriage of passengers entirely within territorial waters, even though the passengers disembark at their point of embarkation and the vessel touches no other coastwise point, is considered coastwise trade subject to the coastwise laws. However, the transportation of passengers to the high seas (i.e. beyond U.S. territorial waters) and back to the point of embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point, often called a "voyage-to-nowhere", is not considered coastwise trade. See HQ H014892 (Aug. 17, 2007); HQ 113379 (Mar. 23, 1995); and 29 Opinions of the Attorney General 318. In this regard, we note that the terms “embark” and “disembark” for purposes of § 4.80a, are defined in paragraph (a)(4) of that section, which provide: Embark means a passenger boarding the vessel for the duration of a specific voyage and disembark means a passenger leaving a vessel at the conclusion of a specific voyage. The terms embark and disembark are not applicable to a passenger going ashore temporarily at a coastwise port who reboards the vessel and departs with it on sailing from the port. (emphasis in original). The regulatory history to 19 C.F.R. § 4.80a(a)(4), as amended provides, in pertinent part: The terms “embark” and “disembark” are trade words of art which normally mean going on board a vessel for the duration of a specific voyage and leaving a vessel at the conclusion of a specific voyage. In this normal context the words do not contemplate temporary shore leave for any specific number of hours during a voyage. It has been determined that the use of the terms in the statutory language “so transported and landed” means [] final and permanent disembarking . . . Customs Regulations Amendments Relating to Passengers on Foreign Vessels Taken on Board and Landed in the United States, 50 Fed. Reg. 26981 (July 1, 1985) (internal Attorney General Opinion citations omitted); Treas. Dec. 85-109. Thus, based on the regulatory history to 19 C.F.R. § 4.80a, a passenger is considered “disembarked” from a vessel when the passenger “finally and permanently” leaves the vessel at the conclusion of the specific voyage. Based on the facts you provided, the coastwise laws are inapplicable to the voyages of the travel agents. The proposed itinerary for the two different groups of travel agents, the first group beginning in San Francisco and ending at the same point, and the second group beginning in San Pedro and ending in the same point, does not violate section 55103 because it constitutes a voyage-to-nowhere and does not involve transportation between two coastwise points. Issue 2 In HQ 116659 (May 19, 2006), a cruise line proposed transporting employees and contractors that worked in the areas of North America Sales and Marketing and International Sales and Marketing for the purpose of strategizing on how to sell, market, and enhance the overall guest experience of the vessel. CBP held that the foregoing individuals were “passengers” within the meaning of 19 C.F.R. § 4.50(b) and the coastwise transportation of those passengers would be in violation of 19 U.S.C. § 55103. The holding in HQ 116659 was affirmed after reconsideration of the issue in HQ 116668 and has since been upheld in several rulings. See HQ H020448 (Dec. 13, 2008) (holding that sales and marketing cruise line employees and contractors conducting an "industrial show" for travel agencies were passengers); HQ H023116 (Feb. 22, 2008) (holding that sales account executive conducting sales training seminars to top producing travel agencies was a passenger); HQ H013701 (July 10, 2007) (holding that sales representatives are passengers); HQ H002925 (Nov. 8, 2006) (holding that key account representative is a passenger). In addition, we have historically held that individuals, cruise line employees or contractors, transported solely for the promotional purpose of the cruise line, are passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). See Bureau Letter dated July 3, 1957, MA 212 (movie making); HQ 109695 (Nov. 3, 1988) (camera crew carried aboard to film a promotional video); HQ 116668 (camera crew and company employees engaged in promotional filming for cruise line); HQ H008038 (Mar. 9, 2007) (holding that two marketing employees of the cruise line and independent contractors, that were shooting, producing, and performing in a promotional video cruise line were passengers). CBP’s reasoning in the holdings in the foregoing cases is that none of those activities are “directly and substantially” related to the operation or business of the vessel itself. Here, the purpose of transporting the CCL sales team between two coastwise points is to prepare for two "cruises to nowhere" in which they will expose travel agents to CCL products. Although the preparation for these "cruises-to-nowhere" may foster the business of CCL, it does not connect these individuals directly and substantially with the business of the vessel itself. To the extent that the subject individuals would not have been 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 of the vessel itself, such individuals would be considered passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). HOLDING 1. The use of a non-coastwise qualified vessel for the cruise itinerary as it relates to the transportation of the travel agents described above does not constitute engagement in the coastwise trade in violation of 46 U.S.C. § 55103. 2. The CCL sales team described in the FACTS section above are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of those individuals would be in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch