Coastwise Transportation of Passengers; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a.

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H288325 August 4, 2017 VES-3-02-OT:RR:BSTC:CCR HQ H288325 ASZ CATEGORY: Carriers Mr. Guy Fournier 44 Longbourne Cres. Brampton, Ontario Canada L6S 2R9 RE: Coastwise Transportation of Passengers; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a. Dear Mr. Fournier: This letter is in response to your correspondence of July 19, 2017 with respect to the proposed coastwise transportation of two individuals. Our ruling is set forth below. FACTS Two passengers will be transported on a foreign-flag, non-coastwise-qualified vessel from Seattle, Washington to Vancouver, Canada, and then on to Los Angeles, California. The passengers intend to board the vessel in Seattle, Washington on September 30, 2017 and arrive in Vancouver, Canada on October 1, 2017. They will depart the vessel, clear Canadian customs, and enter Canada. Later in the same day, the passengers intend to re-board the same vessel in Vancouver, under a separate booking, and journey to Los Angeles, California where they will disembark on October 7, 2017. The purpose of this travel is for leisure. ISSUE Whether the transportation on a non-coastwise-qualified vessel, as described above, is violative of 46 U.S.C. § 55103? 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 at 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. The CBP Regulations promulgated pursuant to 46 U.S.C. § 55103 are found at 19 CFR §§ 4.80 and 4.80a. Section 4.80(a) provides, in pertinent part, that no vessel shall transport, either directly or by way of a foreign port, any passenger between points in the U.S. embraced within the coastwise laws, including points within a harbor, unless the vessel is coastwise-qualified. Section 4.80a(b), provides in pertinent part that: The applicability of the coastwise law (46 U.S.C. § 55103) to a vessel not qualified to engage in the coastwise trade (i.e., either a foreign-flag vessel or a U.S.-flag vessel that is foreign-built or at one time has been under foreign flag) which embarks a passenger at a coastwise port is as follows: (1) If the passenger is on a voyage solely to one or more coastwise ports and the passenger disembarks or goes ashore temporarily at a coastwise port, there is a violation of the coastwise law. (2) If the passenger is on a voyage to one or more coastwise ports and a nearby foreign port or ports (but at no other foreign port) and the passenger disembarks at a coastwise port other than the port of embarkation, there is a violation of the coastwise law. (3) If the passenger is on a voyage to one or more coastwise ports and a distant foreign port or ports (whether or not the voyage includes a nearby foreign port or ports) and the passenger disembarks at a coastwise port, there is no violation of the coastwise law provided the passenger has proceeded with the vessel to a distant foreign port. A coastwise port is a “port in the U.S., its territories, or possessions embraced within the coastwise laws.” 19 CFR § 4.80a(a)(1). A “nearby foreign port” is defined as “any port in North America, Central America, the Bermuda Islands, or the West Indies (including the Bahama Islands, but not including the Leeward Islands of the Netherlands Antilles, i.e., Aruba, Bonaire, and Curacao).” 19 CFR § 4.80a(a)(2). A “distant foreign port” is defined as “any foreign port that is not a nearby foreign port.” 19 CFR § 4.80a(a)(3). Section 4.80a(a)(4), CBP Regulations (19 CFR § 4.80a(a)(4)) provides that: Embark means a passenger boarding a vessel for the duration of a specific voyage and disembark means a passenger leaving a vessel at the conclusion of a specific voyage. (Emphasis in original.) In the present case, the individuals will embark the vessel in Seattle, Washington, a U.S. point, and disembark the vessel in Los Angeles, California, a different U.S. point. Vancouver, Canada is a nearby foreign port, as defined in 19 CFR § 4.80a(a)(2). Based on the facts as you present them, passengers on a voyage to one or more coastwise ports and a nearby foreign port or ports will disembark at a coastwise port other than the port of embarkation. This is exactly the scenario envisioned in Section 4.80a(b)(2). See HQ H141177 (Jan. 11, 2011) (holding that the proposed transportation of a passenger from San Francisco, California to Vancouver, Canada, where the passenger departs the vessel with his luggage in Vancouver in the morning and then re-boards the same vessel with his luggage in Vancouver in the afternoon, having purchased a separate ticket to provide transportation to Whittier, Alaska, the port of disembarkation, would be a violation of 46 U.S.C. § 55103). Therefore, based upon the fact that the passengers will embark and disembark the non-coastwise-qualified vessel at different U.S. points, the proposed transportation will result in a violation of 46 U.S.C. § 55103. HOLDING As described above, the proposed transportation will result in a violation of 46 U.S.C. § 55103. Sincerely, Lisa L. Burley Chief/Supervisory Attorney-Advisor Cargo Security, Carriers and Restricted Merchandise Branch Office of Trade, Regulations and Rulings