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

HQ H117819 August 4, 2010 VES-3-02-RR:BSTC:CCI H117819 GOB CATEGORY: Carriers George Whitinger Norton Lilly International 249 E. Ocean Blvd. Suite 200 Long Beach, CA 90802 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR § 4.50(b) Dear Mr. Whitinger: This letter is in response to your letter of August 4, 2010, with respect to the coastwise transportation of an individual. Our ruling is set forth below. FACTS: You ask whether the spouse of a crew member may travel on the M/V PALMEAL on its voyage from San Diego, California to Los Angeles, California on August 6, 2010. ISSUE: Whether the subject individual is a “passenger” within the meaning 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 in 46 U.S.C. § 55103 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that: (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- is wholly owned by citizens of the United States for purposes of engaging in the coastwise traffic; and 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), Customs and Border Protection (“CBP”) Regulations (19 CFR § 4.50(b)) provides as follows: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business. It is CBP’s longstanding position that immediate family members (i.e., a spouse and children) of officers of the vessel are not considered “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). This position was first articulated in General Letter No. 117, dated May 20, 1916. That letter and position were cited with approval in Bureau Letter MA 212.1, dated December 9, 1958, as well as in a Customs Bulletin notice of February 20, 2002 (Volume 36, Customs Bulletin, No. 8, p. 50), pertaining to the modification and revocation of CBP ruling letters relating to who is considered a passenger for the purpose of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). However, CBP’s position extends to immediate family members of officers of the vessel. Our position does not extend to immediate family members of the crew of the vessel. Such individuals are considered “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). HOLDING: Immediate family members (i.e., a spouse and children) of crew of the vessel are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). Therefore, the coastwise transportation of the subject individual on the subject non-coastwise-qualified vessel would be in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch