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

HQ H103483 May 14, 2010 VES-3-02-OT:RR:BSTC:CCI H103483 LLB CATEGORY: Carriers Mr. Dave Featherstonhaugh NovaTec Consultants Inc. 101-2415 Columbia Street Vancouver, British Columbia V5Y 3E7 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Featherstonhaugh: This letter is in response to your correspondence of April 27, and 29, 2010, in which you inquire about coastwise transportation of the individuals mentioned therein. Our decision follows. FACTS The voyages in question involve the transportation of the subject individuals, marine engineers, aboard non-coastwise-qualified cruise line vessels (the “vessels”) between the Alaskan ports of Juneau, Ketchikan, and Skagway. The individuals will embark and disembark these vessels starting on or about May 18, 2010 and ending on or about August 19, 2010, according to a schedule that will be provided to and coordinated with, the Customs and Border Protection's (CBP) port in Anchorage, Alaska. The cruise line is required by the State of Alaska to report wastewater plant discharge from their vessels pursuant to the cruise line’s permit to operate in Alaskan waters. Accordingly, the subject individuals will collect and analyze wastewater plant discharge samples while the vessel is underway. 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)(2010). 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). You state that the subject individuals will be transported on the vessels for the purpose of collecting and analyzing wastewater plant discharge samples from the vessels while they are underway so that the cruise line may report these findings to the State of Alaska as described in the FACTS section above. In this context, and in accordance with previous Headquarters’ rulings, workmen, technicians, or observers transported by vessel between ports of the United States are not classified as “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation or business of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. In the present case, to the extent that the subject individuals would be 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 itself, as would be the case under the facts herein submitted, the subject individuals would not be considered passengers. The subject individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise travel, as described above, 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