Coastwise Transportation; 46 U.S.C. §§ 55103, 55121

HQ H027836 May 16, 2008 VES-3-02-OT:RR:BSTC:CCI H027836 JLB CATEGORY: Carriers Ms. Judith Fleming General Manager Nautilus Explorer P.O. Box 97182 RMPO Richmond, BC V6X 8H3 Canada RE: Coastwise Transportation; 46 U.S.C. §§ 55103, 55121 Dear Ms. Fleming: This letter is in response to your correspondence dated April 18, 2008, in which you request a ruling on whether the coastwise transportation of passengers between ports in southeastern Alaska on the Canadian-flagged NAUTILUS EXPLORER constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS Your company, Icarus Aviation Ltd. which does business as Lever Diving, owns and operates a Canadian-flagged, 116’ dive live-aboard vessel, the NAUTILUS EXPLORER. You wish to embark passengers in Sitka, Alaska on June 24, 2008 and disembark those passengers in Ketchikan, Alaska on July 5, 2008. ISSUE Whether the use of a non-coastwise-qualified vessel in the voyage described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103? LAW AND ANALYSIS The coastwise passenger statute, former 46 U.S.C. App. § 289 recodified as 46 U.S.C. § 55103, pursuant to P.L. 109-304 (October 6, 2006), states that no foreign vessel shall transport passengers “between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port,” under a penalty of $300 for each passenger so transported and landed. See also 19 C.F.R. § 4.80(b)(2). 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 passenger statute does not apply in certain circumstances such as in former 46 U.S.C. App. § 289b recodified as 46 U.S.C. § 55121(b) pursuant to P.L. 109-304 (October 6, 2006). That statute, 46 U.S.C. § 55121(b), provides that until the Secretary of Transportation determines that service by vessels of the United States is available to provide the transportation described in paragraph (1) or (2), sections 55102 and 55103 of this title do not apply to the transportation on Canadian vessels of— passengers between ports in southeastern Alaska; or passengers or merchandise between Hyder, Alaska, and other points in southeastern Alaska or in the United States outside Alaska. In the present case, the passengers will be embarking a Canadian vessel in Sitka and disembarking in Ketchikan, both of which are in southeastern Alaska. Given that the Secretary of Transportation has not determined that vessels of the United States are available to provide transportation for passengers between the subject ports in southeastern Alaska, 46 U.S.C. § 55103 is inapplicable to the voyage pursuant to 46 U.S.C. § 55121(b). HOLDING The use of a non-coastwise-qualified vessel in the voyage described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch