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 H295848 April 27, 2018 VES-3-02 OT:RR:BSTC:CCR HQ H295848 ASZ CATEGORY: Carriers Ms. Jessica Ashe Holland America Group Media Production Department 24305 Town Center Drive Santa Clarita, California 91355 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b). Dear Ms. Ashe: This is in response to your correspondence of April 4, 2018, in which you inquire about the coastwise transportation of the one individual mentioned therein aboard the M/S ZANDAAM. Our decision follows. FACTS The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/S ZANDAAM (“the vessel”). The individual will embark the vessel in Ketchikan, Alaska on or about May 9, 2018 and will disembark in Juneau, Alaska on or about May 25, 2018. You state that the individual will direct the video production for “Alaska Shore Excursions” and that the captured footage will be used to promote “shore excursions for all [Holland America Line] vessels.” ISSUE Whether the individuals described in the FACTS section 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. 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. 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. Section 4.80(b)(2) of the CBP Regulations provides: The penalty imposed for the unlawful transportation of passengers between coastwise points is $300 for each passenger so transported and landed on or before November 2, 2015, and $762 for each passenger so transported and landed after November 2, 2015 (46 U.S.C. § 55103, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). 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 onboard to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are onboard because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see HQ 116721 (Sept. 25, 2006)(quoting HQ 101699). Furthermore, the shipboard activities engaged in by such aforementioned individuals while traveling on a non-coastwise-qualified vessel between coastwise ports must be “directly and substantially” related to the operation, navigation, ownership, or business of the vessel itself in order for such individuals to not be considered as passengers under these provisions of law.  In the present case, you state that the individual will direct the video production for “Alaska Shore Excursions” and that the captured footage will be used to promote “shore excursions for all [Holland America Line] vessels.” We have historically held that individuals, cruise line employees or contractors, transported solely for the promotional purpose of the cruise line, are passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). See Bureau Letter dated July 3, 1957, MA 212 (movie making); HQ 109695 (Nov. 3, 1988) (camera crew carried aboard to film a promotional video); HQ 116668 (July 25, 2006) (camera crew and company employees engaged in promotional filming for cruise line); HQ H008038 (Mar. 9, 2007) (holding that two marketing employees of the cruise line and independent contractors, who were shooting, producing, and performing in a promotional video cruise line were passengers); and HQ H020448 (Dec. 13, 2008) (holding that sales and marketing cruise line employees and contractors conducting an "industrial show" for travel agencies were passengers). CBP’s reasoning in the holdings in the foregoing cases is that none of those activities are “directly and substantially” related to the operation or business of the vessel itself. Although transporting the video production director aboard the vessel would foster the business interests of the cruise line, it would not connect the video production director “directly and substantially” with the business of the vessel itself. To the extent that the subject individual would not 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 of the vessel itself, such individual would be considered a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). HOLDING The individual described in the FACTS section above is 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 would be 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 Trade, Regulations and Rulings