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

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H253005 May 5, 2014 VES-3-02-OT:RR:BSTC:CCR HQ H253005 KLQ CATEGORY: Carriers Ms. Marcia Chandler Holland America, Inc. 300 Elliott Avenue West Seattle, WA 98119 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Ms. Chandler: This letter is in response to your correspondence of April 29, 2014, with respect to the coastwise transportation of one individual. Our ruling is set forth below. FACTS: The National Park Service is re-commencing a study to identify factors and conditions that result in cruise ships striking and killing humpback whales, specifically, in the region of the Glacier Bay National Park (“GBNP”). To implement the study, the subject ecologist will be positioned on vessels that are navigating through the GBNP to observe the whales and their movements. The ecologist will be communicating directly to the bridge via radio the locations of the whales, so the pilots may determine the best course to avoid vessel collisions that could result from striking the whales. The study would require the following. The proposed voyages in question involve the transportation of the foregoing subject ecologist aboard non-coastwise-qualified vessels operated by the Holland America Cruise Line. The ecologist will either embark in Skagway, Alaska and disembark in Ketchikan, Alaska, or embark in Juneau, Alaska, and disembark in Ketchikan, Alaska, from on or about June 3, 2014 through on or about August 11, 2014. ISSUE: Whether the subject individual is a “passenger” 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. 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: (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 the coastwise trade; and (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. Section 4.50(b), Customs and Border Protection (“CBP”) Regulations (19 C.F.R § 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, navigation, ownership, or business of the vessel. In the present case, you propose to transport the subject ecologist to collect data regarding the distance patterns of humpback whales in relation to cruise ships that navigate the Glacier Bay National Park. While onboard, the subject ecologist will also be relaying the locations of the whales to the bridge of each vessel, in real time during the course of the study, i.e. communicating to the pilot that a whale strike is imminent thereby allowing the pilot to decide on an alteration of course or speed (relative to other factors). We conclude that such activity directly and substantially connects the individual to the navigation of the vessel itself. To the extent that the subject individual would be engaging 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 of the vessel itself, such individual would not be considered a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). HOLDING: The subject individual is not 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 is not in violation of 46 U.S.C. § 55103. Sincerely, Lisa L. Burley Chief/Supervisory Attorney-Advisor Cargo Security, Carriers and Restricted Merchandise Branch Office of International Trade, Regulations & Rulings U.S. Customs and Border Protection