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

HQ H042296 October 30, 2008 VES-3-02-OT:RR:BSTC:CCI H042296 LLB CATEGORY: Carriers Mr. James Mills Operations Coordinator residenSea 14471 Miramar Parkway, Suite 401 Miramar, Florida 33027 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Mills: This letter is in response to your correspondence dated October 21 and 28, 2008, in which you inquire about the "coastwise clearance" of the two individuals mentioned therein aboard THE WORLD. We are construing your correspondence as a request for a ruling to determine whether the coastwise laws, specifically 46 U.S.C. § 55103, and the regulations promulgated under that statute, 19 C.F.R. § 4.50(b), apply to the factual scenario you present. Our decision follows. FACTS The voyage in question involves the transportation of the subject individuals, guest lecturers, aboard the non-coastwise-qualified THE WORLD (the “vessel”). The individuals will embark in Cape Canaveral, Florida on November 16, 2008 and disembark in Miami, Florida on November 19, 2008. The individuals will provide a lecture on the following subject matter: Towards a Sustainable Future The key to restoring and sustaining the earth’s environmental health lies in integrating and balancing the needs of both environmental and human systems through practical choices in pollution prevention, conservation, economic development and a societal shift towards preferences for sustainable products and services. Maps that change the world A new standard for assessing living marine resources and other critical habitats. Maps have played an important part in human history. In the past, maps have been made by different people with different scales and different levels of accuracy. Everyone has seen maps and many have experienced how difficult it is to compare different versions of a map showing the same area. We have overcome these limitations, can discern different habitat types on the smallest scale, analyze their spatial and temporal relationships, and identify minute changes and then return 3, 5 or 10 years from now and layer a new one on top of it. Dolphins – The Ultimate in Family Values This same Long term research on communities of wild dolphins has exposed complex societies with multiple levels of associations between residents. While maintaining long lasting family ties that have proven to be essential to the success of the species, dolphins also utilize defined gender specific strategies for survival and social acceptance. ISSUE Whether the individuals 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). In CBP Ruling HQ H011874 (May 31, 2007), CBP held that individuals transported aboard a vessel to “embark as clothing consultants and . . . give advice about fashion for the passengers onboard” were passengers within the meaning of 46 U.S.C. § 55103 insofar as these "fashion consultants" were not “directly and substantially” connected with the operation, navigation, ownership or business of the vessel itself. See also HQ H023376 (May 10, 2008) (holding that individuals transported for the purpose of providing a "lecture about New Orleans to the passengers onboard" were passengers within the meaning of 46 U.S.C. § 55103); HQ H027133 (May 5, 2008) (lecture on make up). Similarly, in the present case, you proposed to transport two individuals who will provide lectures about the environment, maps, and dolphins, as described above. Since the subject individuals will not be engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, that would be “directly and substantially” related to the navigation, 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). Accordingly, the coastwise transportation of these two individuals would be in violation of 46 U.S.C. § 55103. HOLDING The two individuals that will be providing lectures as described in the FACTS section herein, are 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 would be in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch