VES-3-02-OT:RR:BSTC:CCR HQ H311966 MNM
Mr. Mike Meighan Director – Seamester
1075 Central Avenue
Sarasota, Florida 34242
RE: Coastwise Transportation of Passengers; 46 U.S.C. §§ 55101 and 55103; 19 C.F.R. §§ 4.50(b) and 4.80a; sailing school; distant foreign port; U.S. Virgin Islands
Dear Mr. Meighan:
This letter is in response to your June 29, 2020 ruling request in which you inquire as to whether the operation of the non-coastwise-qualified vessel, the S/Y ARGO (the “vessel”), would constitute a violation of 46 U.S.C. § 55103. Our ruling is set forth below.
FACTS
The subject vessel is a 112-foot British Virgin Islands-flagged steel sailing schooner built in Thailand. You, as Director of the “Seamester” program, propose to use the vessel for a Seamester 90-day semester program to conduct courses on board with a focus on Nautical Science, Oceanography, Marine Biology, Professional Skipper Certification Training, Leadership, Basic Seamanship, and an Independent Study. Courses are accredited through the University Of South Florida (USF), Scuba certifications through PADI, and sailing training through International Yacht Training Worldwide (IYT).
You state that the students will embark the vessel on September 15, 2020 in Mystic, Connecticut and then remain in U.S. waters for a 14-day quarantine and training period while calling upon Boston, Massachusetts and Newport, Rhode Island; however, should a student test positive for COVID-19 during this quarantine period, you anticipate the possibility of being required to disembark them at a U.S. Port. Once the quarantine is complete, you plan to depart the U.S. for Europe, calling upon the ports of Azores, Madeira, Portugal, the Canary Islands, Spain, and Tenerife, Spain, before crossing back to the Caribbean Lesser Antilles. You intend for the students to temporarily leave the vessel and go ashore for scuba diving off the coast of Madeira and for tourism activities in Tenerife. You will repatriate your U.S. students by ending the trip in St. Thomas, U.S. Virgin Islands (USVI) where the students will disembark on December 13, 2020; however, should the USVI or international borders be closed due to the COVID-19 travel restrictions during the planned itinerary, the students would be disembarked in St. Petersburg, Florida.
ISSUES
Whether the proposed itinerary which includes transportation of individuals embarking at U.S. ports to Spain and Portugal, and disembarking in the U.S Virgin Islands as described in the FACTS section would constitute a violation of 46 U.S.C. § 55103 and 19 CFR § 4.50(b).
Whether transportation of individuals participating in a sailing program aboard the vessel constitutes a violation of 46 U.S.C. § 55103 and 19 CFR § 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 at 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.
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 further provide:
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 $798 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).
Section 4.80a provides:
(b) The applicability of the coastwise law (46 U.S.C. 55103) to a vessel not qualified to engage in the coastwise trade (i.e., either a foreign-flag vessel or a U.S.-flag vessel that is foreign-built or at one time has been under foreign-flag) which embarks a passenger at a coastwise port is as follows:
(1) If the passenger is on a voyage solely to one or more coastwise ports and the passenger disembarks or goes ashore temporarily at a coastwise port, there is a violation of the coastwise law.
…
(3) If the passenger is on a voyage to one or more coastwise ports and a distant foreign port or ports (whether or not the voyage includes a nearby foreign port or ports) and the passenger disembarks at a coastwise port, there is no violation of the coastwise law provided the passenger has proceeded with the vessel to a distant foreign port.
A “distant foreign port” is defined as any foreign port that is not a nearby port. 19 C.F.R. § 4.80a(a)(3). A nearby foreign port is defined as: any foreign port in North America, Central America, the Bermuda Islands, or the West Indies (including the Bahama Islands, but not including the Leeward Islands of the Netherlands Antilles, i.e., Aruba, Bonaire, and Curacao).
Issue 1
You state that the non-coastwise-qualified vessel will embark the students in Mystic, Connecticut, transport them to Spain and Portugal, and disembark them in the USVI; however, there is a possibility that once the vessel calls Spain and Portugal, the students may have to disembark in St. Petersburg, Florida should the USVI be closed to visitors due to the COVID-19 pandemic. Initially, we note that the original itinerary, embarking the students in Mystic, Connecticut and disembarking them in the USVI, does not violate the Passenger Vessel Services Act (“PVSA”), (codified at 46 U.S.C. § 55103), because the coastwise laws do not apply to the U.S. Virgin Islands. See 46 U.S.C. § 55101(b)(3); See also HQ H279098 (Sept. 13, 2016), HQ H006044 (Jan. 30, 2007) and HQ H137215 (Dec. 10, 2010).
Should the USVI remain closed to non-resident visitors beyond the planned disembarkation date resulting in transporting the students from Mystic, Connecticut via Spain and Portugal, to St. Petersburg, Florida, there would be no violation of the PVSA. Portugal and Spain are considered distant foreign ports within the meaning of 19 C.F.R. § 4.80a(a)(3) and as such, the coastwise laws would not apply to this itinerary. See HQ H247722 (Dec. 2, 2013), HQ H077619 (Oct. 6, 2009). Consequently, this itinerary would not be in violation of 46 U.S.C. § 55103.
Issue 2
You also state that there is a possibility that the vessel may be prohibited from calling Spain or Portugal, which may result in the students embarking the vessel in Mystic, Connecticut, and disembarking in St. Petersburg, Florida. Pursuant to 19 C.F.R. § 4.80a(b)(1), this would be a violation of the coastwise laws because it involves transportation of passengers between coastwise points. However, CBP has consistently held that “a person transported on a vessel as a student in bona fide instructional courses in oceanography or sailing and navigation/seamanship, when the presence of that person is required onboard the vessel as a part of his or her course of training, is not a passenger for purposes of the coastwise laws.” HQ H266819 (Aug. 4, 2015) (emphasis added); see also, e.g., HQ H261304 (May 21, 2015), HQ 115066 (Jun. 9, 2000).
You assert that the individuals will be transported onboard the vessel for the purpose of learning sailing, navigation, and seamanship skills. In support of this claim, you have provided the following documents: 1) a Student Orientation Manual outlining the roles and responsibilities students will be assuming as a crew member aboard the vessel; 2) Student Agreement Contracts setting sets forth the terms of the students’ enrollment in the Seamester program; 3) University of South Florida Memorandum of Understanding (“MOU”) in which USF and ActionQuest LLC (DBA Seamester) agree to offer USF college accredited classes as part of the students’ experience; 4) Student Academic Handbook giving a general description of what training you will conduct onboard the vessel; and 5) various links to the Seamester website detailing “Life Aboard,” “Academics,” and “Our Team.” Insofar as the subject individuals would not be considered passengers due to their enrollment and participation in a bona fide sailing program it would not be a violation of 46 U.S.C. § 55103 for the subject non-coastwise-qualified vessel to transport the subject individuals on the itinerary between Mystic, Connecticut and other coastwise points during the course of the sailing program.
HOLDING
The proposed transportation of individuals outlined above does not constitute a violation of 46 U.S.C. § 55103 or 19 CFR § 4.50(b) because the PVSA does not apply to the port of disembarkation at the USVI, which is not a coastwise point, and the itinerary’s calling upon several distant foreign ports removes the voyage from the PVSA. Alternatively, even if entry at distant foreign ports and USVI were prohibited, and therefore the vessel were to embark at Mystic, CT, and disembark at St. Petersburg, FL (transporting individuals between coastwise points), the students of the Seamester program aboard the vessel are not classified as passengers for the purposes of the PVSA because this transportation of individuals constitutes a bona fide instructional course in sailing and navigation/seamanship.
Sincerely,
Lisa L. Burley
Chief/Supervisory Attorney-Advisor
Cargo Security, Carriers and Restricted Merchandise Branch
Office of Trade, Regulations and Rulings