Coastwise Transportation; 46 U.S.C. § 55103; 46 U.S.C. § 55121; 19 C.F.R. § 4.50(b).

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H271440 January 6, 2016 VES 3-02-OT:RR:BSTC:CCR H271440 WRB CATEGORY: Carriers Mr. Given Davies Maple Leaf Adventures P.O. Box 8845, Stn. Central Victoria, BC V8W 3Z1 Canada RE: Coastwise Transportation; 46 U.S.C. § 55103; 46 U.S.C. § 55121; 19 C.F.R. § 4.50(b). Dear Mr. Davies: This is in response to your correspondence of December 7, 2015 in which you request a ruling on whether the coastwise transportation of passengers between ports in southeastern Alaska on the Canadian-flagged M/V SWELL constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS Your company, Maple Leaf Adventures, owns and operates a Canadian-flagged, 80-foot vessel, the M/V SWELL. You propose to transport passengers between Petersburg, Alaska; Ketchikan, Alaska; and Sitka, Alaska. ISSUE Whether the use of a non-coastwise-qualified vessel in the transportation described above constitutes an engagement in the coastwise trade in violation 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 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 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) of the Customs and Border Protection (“CBP”) Regulations 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. However, 46 U.S.C. § 55121 provides, in pertinent part: Until the Secretary of Transportation determines that service by vessels of the United States is available to provide the transportation described in paragraph (1) or (2), sections 55102 and 55103 of this title do not apply to the transportation on Canadian vessels of— (1) passengers between ports in southeastern Alaska; or (2) passengers or merchandise between Hyder, Alaska, and other points in southeastern Alaska or in the United States outside Alaska. In HQ H027836 (May 16, 2008), CBP ruled pursuant to the provisions of 46 U.S.C. § 55121 that the transportation of passengers between Sitka, Alaska and Ketchikan, Alaska aboard a Canadian-flagged, vessel did not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. Similarly, in HQ H145801 (Feb. 1, 2011), CBP determined that a Canadian-flagged vessel could transport passengers between Sitka, Alaska and Ketchikan, Alaska, without violating 46 U.S.C. § 55103, in accordance with 46 U.S.C. § 55121. In the present case, the passengers will be transported between Petersburg, Alaska; Ketchikan, Alaska; and Sitka, Alaska on a Canadian vessel. Petersburg, Ketchikan, and Sitka, are all located in southeastern Alaska. Inasmuch as the Secretary of Transportation has not determined that vessels of the United States are available to provide transportation for passengers between the subject ports in southeastern Alaska, 46 U.S.C. § 55103 is inapplicable to the subject transportation pursuant to 46 U.S.C. § 55121(b). HOLDING The use of a non-coastwise-qualified vessel in the voyage described above does not constitute an engagement in the coastwise trade 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 and Rulings