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 H301355 October 16, 2018 VES-3-02 OT:RR:BSTC:CCR H301355 TNA CATEGORY: Carriers Michael Lee Page & Jones Inc 52 N. Jackson St Mobile, AL 36602 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b). Dear Mr. Lee: This is in response to your correspondence of October 15, 2018, in which you inquire about the coastwise transportation of the individual mentioned therein aboard the M/V AFRICAN AVOCET. Our decision follows. FACTS: The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/V AFRICAN AVOCET (“the vessel”). The individual will embark the vessel in Mobile, Alabama on or about October 16, 2018, and will disembark in Gulfport, Mississippi on or about October 19, 2018. The individual will observe as divers perform an underwater survey on the vessel. ISSUE: Whether the individual described in the FACTS section 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 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 provides: 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 $778 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 the present case, you state that the individual will observe as divers perform an underwater survey on the vessel. In accordance with previous Headquarters rulings, workmen, or technicians 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 addition, CBP has held that shoreside employees transported for the purpose of observing onboard operations are passengers. In particular, CBP has held that although observing or familiarizing terminal operations managers with vessel operations may foster the business of the shipping company, it does not connect those individuals directly and substantially with the business of the vessel itself. To the extent that the subject individuals will 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, navigation, ownership or business of the vessel itself, such individuals would be considered passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). See HQ H019524 (Apr. 4, 2008); see also HQ H008510 (Mar. 22, 2007) and HQ H008513 (Mar. 23, 2007) (shipping agency trainees transported aboard a vessel to observe daily life on a vessel and gain better insight about what their colleagues that work on a vessel actually do and observe what goes on during a vessel’s voyage” were passengers within the meaning of 46 U.S.C. § 55103 insofar as the trainees were not “directly and substantially” connected with the operation, navigation, ownership or business of the vessel itself); see also HQ H100918 (April 20, 2010) (individual who observed the discharge and vessel operations was found to be a passenger); HQ H189956 (dated October 25, 2011) (individual aboard the vessel to observe the performance of the crew and ship and how the crew takes care of the vessel while at sea found to be a passenger). In the present case, the individual will observe as divers perform an underwater survey on the vessel. The individual will not be performing the inspection himself. Accordingly, the coastwise transportation of the individual in question would be in violation of 46 U.S.C. § 55103. 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 individuals 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