VES-3-02 OT:RR:BSTC:CCR H297185 ASZ
Ms. Naoko Tanimura
NYK Cruises Co. Ltd.
Landmark Tower 47F
2-2-1 Minatomirai
Nishi-ku, Yokohama
220-8147 Japan
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b).
Dear Ms. Tanimura:
This is in response to your correspondence of May 17, 2018, in which you inquire about the coastwise transportation of the one individual mentioned therein aboard the M/S ASUKA 2. Our decision follows.
FACTS
The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/S ASUKA 2 (“the vessel”). The individual will embark the vessel in San Diego, California on or about June 17, 2018 and will disembark in Honolulu, Hawaii on or about June 24, 2018. The individual is an employee of a land tour operator who will board the vessel to introduce Honolulu shore excursion tours and sightseeing information to passengers.
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 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 $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 is an employee of a land tour operator who will board the vessel to introduce Honolulu shore excursion tours and sightseeing information to passengers. 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 HQ H262745 (March 17, 2015) and in HQ H030436 (June 20, 2008), CBP held that a tour operator whose purpose was to prepare shore excursions for each port and provide information about the ports in which the vessel would stop was a passenger within the meaning of 46 U.S.C. § 55103 insofar as the tour operator would not have been engaged in any shipboard activities, while traveling on the non-coastwise-qualified vessel between coastwise points, that would be “directly and substantially” related to the operation or business of the vessel itself. Similarly, in HQ H098730 (Apr. 8, 2010), CBP ruled that a tour operator, who was to be carried onboard for preparing shore excursions and port information was a passenger within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b), insofar as the tour operator was not “directly and substantially” connected with the operation, navigation, ownership or business of the vessel itself.
In the present case, you propose to transport a tour operator whose purpose is to introduce shore excursion tours and sightseeing information to passengers. To the extent that the subject individual would not be engaged in any shipboard activities while traveling on the non-coastwise-qualified vessel between coastwise points 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). Accordingly, the coastwise transportation of the tour guide 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 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