Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)

HQ H106176 May 21, 2010 VES-3-02-OT:RR:BSTC:CCI H106176 CK CATEGORY: Carriers Mr. Thomas Lewis Inchcape Shipping Services 113 Arendell St., Suite 222 Morehead City, North Carolina 28557 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) Dear Mr. Lewis: This letter is in response to your correspondence dated May 18, 2010, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the MV PAC ALTAIR constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS: The voyage in question involves the transportation an individual aboard the non-coastwise-qualified MV PAC ALTAIR ("the vessel"). This individual will embark on or about May 28, 2010 in Morehead City, North Carolina and will disembark in New Orleans, Louisiana on or about June, 2, 2010. This individual will travel aboard the vessel to carry out an Environmental Compliance Program. The audit will include officer and crew interviews; observing all operating equipment while the vessel is underway; conducting performance testing on selected environmental equipment; inspecting drill safety requirements; inspecting maintenance and repair records, and conducting any other inspections deemed necessary. ISSUE: Whether the individual described above would be a "passenger" within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b)? 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. Under 46 U.S.C. § 55103, a "passenger" is any person carried aboard a vessel "who is not connected with the operation of the vessel, her navigation, ownership, or business." See also 19 C.F.R. § 4.50(b). In this regard, U.S. Customs and Border Protection ("CBP") provides a strict interpretation of "passenger" defining the term as persons transported on a vessel unless they are "directly and substantially" connected with the operation, navigation, ownership or business of that vessel itself. See Customs Bulletin of June 5, 2002, Vol. 36, No. 23, at pp. 50. Pursuant to Headquarters Decision 101699, dated November 5, 1975, it is well settled that "workmen, technicians, or observers transported by vessel between ports of the United States are not classified as 'passengers' within the meaning of section 4.50(b) and section 289 [now section 55103] if they are required to be on board to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage." See also Headquarters Decision 116721, dated September 25, 2006. In the present case, the individual will travel aboard the vessel to carry out an Environmental Compliance Program. Under the facts presented, the individual would be "directly and substantially" related to the operation and business of the vessel during the voyage and would not be considered "passengers" under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Consequently, the coastwise transportation of the subject individual is not in violation of 46 U.S.C. § 55103. HOLDING: The subject individual is not 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 an individual is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch