Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); HQ H020051 (Dec. 4, 2007).

HQ H087535 January 7, 2010 VES-3-OT:RR:BSTC:CCI H087535 LLB CATEGORY: Carriers Mr. Mugurel Calin Norton Lilly International 1201 First Avenue South, Suite #330 Seattle, Washington 98134 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); HQ H020051 (Dec. 4, 2007). Dear Mr. Calin: This is in response to your correspondence of December 10, 2009, in which you request “formal permission” for two individuals to be transported aboard the M/V AL RICKMERS. 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, employees of the National Oceanographic and Atmospheric Administration (NOAA), aboard the non-coastwise-qualified M/V AL RICKMERS (the “vessel”). Both individuals will embark in Seattle, Washington on January 15, 2010. One individual will disembark in Long Beach, California on January 20, 2010 and the other individual will disembark in Sydney, Australia on February 9, 2010. You state that both individuals will install and test oceanographic systems which will be testing the C02, salinity, temperature, and dissolved oxygen of the waters in the Pacific Ocean. You further state that the foregoing data is used for climate modeling and the proper operation of the foregoing systems upon the vessel is the responsibility of the NOAA scientists and not the vessel’s crew. ISSUE Whether the use of a non-coastwise-qualified vessel to transport the subject individuals, as stated in the FACTS section above, is permissible under the coastwise laws. LAW and ANALYSIS 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)(2009). 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. 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)(2009). With regard to the individual that is disembarking in Sydney, Australia, the coastwise laws are inapplicable to that subject individual’s voyage. Although the subject individual will embark the vessel at Seattle, Washington, a U.S. port, the individual will disembark at a foreign port, i.e., Sydney, Australia. Therefore, that individual will not be in violation of the coastwise laws insofar as his transportation does not involve disembarkation at a coastwise port. With regard to the other individual that will be disembarking in Long Beach, a legal notice published in the June 5, 2002, Customs Bulletin, in precise concert with the protectionist nature of section 46 U.S.C. § 55103, imposed a circumscribed construction as to the meaning of the term "passenger" under section 55103. Under this strict interpretation of the term “passenger,” as finalized in the June 5, 2002, Customs Bulletin notice, persons transported on a vessel are considered passengers unless they are "directly and substantially" connected with the operation, navigation, ownership or business of that vessel itself. See e.g., HQ 110967 (Apr.12, 1990) (finding that persons on commercial (non-pleasure) vessels are considered passengers unless they enjoy some status which ties them "intimately" to the operation, navigation, ownership or business of the vessel itself). In addition, in HQ H020051 (Dec. 4, 2007), CBP held that individuals transported between coastwise points to engage in removing and maintenance of scientific equipment for the purpose of a research project which involved collecting data that is used for marine forecasting, climate modeling, and safety at sea were passengers. CBP reasoned that those activities did not connect the individuals directly and substantially with the business, operation, or navigation of the vessel itself. Similarly, you propose transporting an individual between coastwise points that will be conducting activities identical to those set forth in HQ H020051. Accordingly, we find that the individual that will disembark in Long Beach, is a passenger and therefore, his transportation would be in violation of 46 U.S.C. § 55103. HOLDING The transportation of the individual that will be embarking in Seattle, Washington and disembarking in Sydney, Australia is not an engagement in coastwise trade. The individual that will embark in Seattle, Washington and disembark in Long Beach, California is a “passenger” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individual would be in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch