VES-3-02-OT:RR:BSTC:CCI H098730 LLB
Ms. Hiroko Yamagishi
NYK Cruises, Operations Division
Yusen Building, 3-2, Marunouchi 2-chome
Chiyoda-ku, Tokyo, Japan
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)
Dear Ms. Yamagishi:
This letter is in response to your correspondence dated March 24, 2010 in which you inquire about the coastwise transportation of the individual mentioned therein aboard the M/S ASUKA II. Our decision follows.
FACTS
The voyage in question involves the transportation of the subject individual, aboard the non-coastwise-qualified M/S ASUKA II (the “vessel”). The subject individual, a tour operator, will embark in San Francisco, California on June 23, 2010 and disembark in Seward, Alaska on July 4, 2010 for the purpose of arranging shore excursions.
ISSUE
Whether the individuals described in the FACTS section above 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. See 33 C.F.R. § 2.22(a)(2)(2009). 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 traffic;
(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, 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.
19 C.F.R. § 4.50(b).
You state that the subject individual, a tour operator, will be arranging shore excursions. In HQ H030436, CBP held that a tour operator whose purpose was to provide shoreside activities and information to the passengers was a passenger within the meaning of 46 U.S.C. § 55103 insofar as the tour operator was not “directly and substantially” connected with the operation, navigation, ownership or business of the vessel itself. Similarly, you propose to transport a tour operator whose purpose is to arrange shore excursions for the passengers. To the extent that the subject individual would not have been 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). Accordingly, the coastwise transportation of the tour operator would be in violation of 46 U.S.C. § 55103.
HOLDING
The subject individual, a tour operator, that will be preparing shore excursions and port information, as described 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,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch