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

HQ H111357 June 22, 2010 VES-3-02:OT:RR:BSTC:CCI H111357 ALS CATEGORY: Carriers Ms. Hiroko Yamagishi NYK Cruises Operations Division Yusen Building, 3-2 Marunouchi 2-chome Chiyoda-ku, Tokyo, Japan RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR 4.50(b) Dear Ms. Yamagishi: This letter is in response to your request of June 21, 2010, with respect to the coastwise transportation of nine individuals. Our ruling is set forth below. FACTS: You ask whether the individuals may be transported on the non-coastwise qualified M/S ASUKAII ("vessel"), from San Francisco, California to Juneau, Alaska. The individuals will embark on June 23, 2010 in San Francisco, and will disembark in Juneau on July 1, 2010. You state that the individuals will be onboard to perform as entertainers. ISSUE: Whether the subject individuals are "passengers" within the meaning of 46 U.S.C. § 55103 and 19 CFR 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. The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that: 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 is wholly owned by citizens of the United States for purposes of engaging in the coastwise traffic; and 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. Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed. Section 4.50(b), Customs and Border Protection (CBP) Regulations (19 CFR 4.50(b)) provides as follows: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business. You state that the subject individuals will be onboard to perform as entertainers. 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 CFR § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. CBP Ruling HQ 101699 (November 5, 1975); see also CBP Ruling HQ 116721 (September 25, 2006). Thus, in the present case, to the extent that the 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 business of the vessel itself, as would be the case under the facts herein submitted, such individuals would not be considered to be a passenger (see HQ 116721, supra; and CBP Ruling HQ 116659 (May 19, 2006), referencing the "direct and substantial" test). Furthermore, we have previously held that entertainers are not considered passengers because they are performing an activity directly related to the business of the vessel. See, e.g., CBP Ruling HQ H055498 (May 22, 2009). We find that the proposed activities in this case are directly and substantially connected with the business of the vessel. Therefore, we determine that the subject individuals are not "passengers" within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b). Accordingly, the coastwise transportation of such individuals 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 CFR 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