VES-3-02-OT:RR:BSTC:CCR H258352 KLQ
Mr. Peter Yoakum
Salish Sea Expeditions
647 Horizon View Place, NW
Bainbridge Island, WA 98110
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.80(b).
Dear Mr. Yoakum:
This letter is in response to your October 16, 2014, ruling request regarding the operation of the British-flagged vessel, M/V PACIFIC VOYAGEUR (“vessel”), in United States (“U.S.”) territorial waters. Our decision follows.
FACTS
The following facts are from the ruling request and emails to this office dated, October 20, 2014 and October 30, 2014. Salish Sea Expeditions (“Salish”) is a non-profit organization which, through hands on programs and teaching, instructs school age children in marine science and navigational practices, which will be discussed further in the LAW and ANALYSIS section below. Salish proposes to use the subject vessel throughout the year to offer school day trips and multiple day long summer camp experiences. The children will embark the vessel at a port, most likely in Seattle, and cruise within the Puget Sound before returning to the same point within that port at the conclusion of the excursion. The subject vessel will remain within the territorial sea for the duration of the voyage.
ISSUE
Whether the transportation of the subject individuals would be in violation 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 transportation 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.
The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, 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.”
You indicate that the subject non-coastwise-qualified vessel will transport passengers within the territorial sea. You further state that the passengers will embark and disembark the vessel from the same coastwise point, which will most likely be near Seattle. In its administration of 46 U.S.C. § 55103, CBP has ruled that the carriage of passengers entirely within territorial waters, even though the passengers disembark at their point of embarkation and the vessel touches no other coastwise point, is considered coastwise trade subject to the coastwise laws. Insofar as the subject vessel will transport passengers entirely within the territorial waters of the United States, the transportation would be considered coastwise trade. Pursuant to 46 U.S.C. § 55103, a vessel may not engage in coastwise trade unless it is coastwise qualified. The subject vessel is not coastwise qualified insofar as it is a British-flagged vessel. Therefore, it would be a violation of 46 U.S.C. § 55103 for the subject non-coastwise-qualified vessel to transport passengers within the territorial waters of the United States.
Salish argues that the vessel will be used as an “oceanographic research vessel” and therefore, the transportation of passengers within the territorial waters of the United States will not violate the coastwise laws. In its interpretation of the coastwise laws, CBP has long held that the use of a vessel solely to engage in oceanographic research is not considered a use in the coastwise trade.
CBP’s interpretation of the coastwise laws as it relates to oceanographic research, in part, has been in concert with the Oceanographic Research Vessel Act, as amended, and codified at 46 U.S.C. § 2101(18), which defines an “oceanographic research vessel” as:
[A] vessel that the Secretary finds is being employed only in instruction in oceanography or limnology, or both, or only in oceanographic or limnological research, including studies about the sea such as seismic, gravity meter, and magnetic exploration and other marine geophysical or geological surveys, atmospheric research, and biological research.
We note that prior CBP rulings do not determine whether the vessels themselves are oceanographic research vessels under 46 U.S.C. § 2101(18); however, the sole use of the vessel and the type of vessel have been considered in the determination as to whether the activities aboard those vessels constituted oceanographic research. The sole “use” of the vessel as interpreted in CBP rulings, considers the sole “use” of the vessel by persons being transported by the vessel.
In the present case, you indicate that the individuals onboard the vessel are school age children. As Salish admits, it plans to use the subject vessel to provide summer camps and school trips for children. Prior to boarding the vessel, the children participate in a classroom experience in which they craft preliminary scientific questions that they will explore during their activities onboard the vessel. Once on the vessel, the students: (1) investigate their classroom hypotheses; (2) learn how to pilot, maintain and navigate the vessel; (3) learn about maritime history, currents and tides; and (4) plan and prepare meals. In addition, the students have the opportunity to row to shore in the evening to set up a camp.
The sole use of the vessel is not oceanographic research. The use of the vessel in the present case is to provide school age children with an excursion that involves building foundational scientific, nautical, cooking and cleaning, and outdoorsman skills. Insofar as the vessel is not solely used for oceanographic research, the transportation of the subject individuals would constitute coastwise trade. As the vessel will be used in coastwise trade, it would be a violation of the coastwise laws for the subject non-coastwise-qualified vessel to transport the subject individuals within the territorial waters of the United States.
HOLDING
The transportation of the subject 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 International Trade, Regulations and Rulings
U.S. Customs and Border Protection