Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a

HQ H056574 April 17, 2009 VES-3-02-OT:RR:BSTC:CCI H056574 JLB CATEGORY: Carriers Mr. Hiroko Yamagishi NYK Cruises Co. Operations Division Yusen Building 3-2, Marunouchi 2-chome Chiyoda-Ku, Tokyo100-0005 Japan RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a Dear Mr. Yamagishi: This letter is in response to your correspondence dated April 3, 2009, in which you request a ruling on whether passengers temporarily leaving a non-coastwise-qualified vessel and rejoining the vessel at a different port 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 MS ASUKA II (“the vessel”). The proposed cruise itinerary is as follows: June 6, 2009: Bergen, Norway June 11-12, 2009: Reykjavik, Iceland June 19-20, 2009: New York, United States June 24, 2009: Cozmel, Mexico June 26, 2009: Grand Cayman, Cayman Islands July 2, 2009: Acapulco, Mexico July 7, 2009: San Francisco, United States July 12-13, 2009: Honolulu, United States NYK Cruises Co. has planned a few overland shore excursions which will cause passengers to leave the vessel at one port and re-board at another port. Under the first scenario, the passengers will embark at Bergen, Norway on June 6, 2009 and then leave the vessel at the first stop of Reykjavik, Iceland to fly from Iceland to NY. Then the individuals will re-board the vessel at New York and disembark in San Francisco, California on July 7, 2009. Under the second scenario, the individuals will once again embark in Bergen, Norway and leave the vessel at the first stop of Reykjavik, Iceland on June 11, 2009 to fly from Iceland to NY. Then the individuals will re-board the vessel at New York on June 19, 2009 and leave the vessel in San Francisco, California on July 7, 2009 in order to take part in a San Francisco to Honolulu tour. Finally, the individuals will travel from San Francisco to Honolulu by air, re-board the vessel in Honolulu and disembark in Japan. ISSUE Whether the use of a non-coastwise-qualified vessel in the cruise itineraries described above constitutes an engagement in coastwise trade in violation of 46 U.S.C. § 55103? 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). 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). 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. The CBP Regulations promulgated pursuant to 46 U.S.C. § 55103 are found at 19 C.F.R. § 4.80a. These regulations provide guidelines for determining whether the movement of passengers between two coastwise points is considered coastwise trade. Section 4.80a(b)(2), Customs Regulations (19 C.F.R. § 4.80a(b)(2)), provides that if a passenger is on a voyage to one or more coastwise ports and a nearby foreign port or ports (but at no other foreign port) and the passenger disembarks at a coastwise port other than the port of embarkation, there is a violation of the coastwise law. A nearby foreign port is defined as "any foreign port in North America, Central America, the Bermuda Islands, or the West Indies (including the Bahama Islands, but not including the Leeward Islands of the Netherlands Antilles, i.e., Aruba, Bonaire, and Curacao)." Under the facts presented, the threshold question is whether the passengers who temporarily leave the vessel in Reykjavik, Iceland and rejoin the vessel in New York will be considered to have “disembarked” the vessel in Reykjavik and “embarked” the vessel in New York, as those terms are defined in the relevant U.S. Customs and Border Protection (“CBP”) regulations. Additionally, under the second scenario, the question is whether the passengers who temporarily leave the vessel in Reykjavik, Iceland, rejoin the vessel in New York, then temporarily leave the vessel again in San Francisco and rejoin the vessel in Honolulu will be considered to have “disembarked” the vessel in either Reykjavik or San Francisco. “Embark” is defined as a “passenger boarding a vessel for the duration of a specific voyage.” A passenger does not "disembark" if they merely go ashore temporarily at a coastwise port so long as they re-board the vessel before it leaves for a foreign port. A passenger only "disembarks" from the vessel if the passenger “finally and permanently" leaves the vessel at the conclusion of the specific voyage. See 19 C.F.R. § 4.80a(a)(4). In the normal context the words do not contemplate temporarily being ashore for a 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. See 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. In fact, CBP has held that, “...passengers temporarily leaving the vessel at one intermediate United States port for a brief tour of a few days duration and rejoining the vessel at another intermediate United States port will not have ‘disembarked’ from the vessel.” See Headquarters Ruling Letter 115106, dated September 27, 2000. Thus, based on the regulatory history to 19 C.F.R. § 4.80a, a passenger is considered "disembarked" from a vessel only when the passenger "finally and permanently" leaves the vessel at the conclusion of the specific voyage. Accordingly, under the first scenario, although the passengers will be leaving the vessel in Reykjavik, Iceland, they will be rejoining the vessel in New York to continue the voyage. Under the second scenario, the passengers will be leaving the vessel in San Francisco, but will be once again rejoining the vessel in Honolulu to continue the voyage. As such, the passengers will not be considered to be disembarked in either Reykjavik or in San Francisco because they will not be “finally and permanently” leaving the vessel. Consequently, under the first scenario the passengers rejoining the vessel in New York, and under the second scenario, Honolulu, would not be considered embarked in New York or Honolulu. Therefore, the itineraries will not be in violation of 46 U.S.C. § 55103 insofar as the transportation does not involve embarkation and disembarkation at a coastwise port. HOLDING The use of the non-coastwise-qualified vessel in the cruise itineraries described above do not constitute an engagement in coastwise trade in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch