HQ 0111354 - Reporting Procedures for Vessels Under 5 Net Tons in the Great Lakes Area; 19 U.S.C. 1433, 1436 - United States International Trade Commision Rulings

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HQ 111354

November 19, 1990

VES-5-CO:R:P:C 111354 GEV

CATEGORY: CARRIER

Mr. Kevin P. Cummings
Director
Project North Star
6 Fountain Plaza, Suite 300
Buffalo, New York 14202

RE: Reporting Procedures for Vessels Under 5 Net Tons in the Great Lakes Area; 19 U.S.C. 1433, 1436

Dear Mr. Cummings:

This is in reference to your memorandum dated October 10, 1990 (your ref: INS-1-PNS PFM), with attachments, requesting a ruling as to the reporting procedures for vessels under 5 net tons in the Great Lakes area. Our ruling on this matter is set forth below.

FACTS:

While in Blaine, Washington, the staff of Project North Star, a task force initiated by the Department of Treasury and consisting of Customs, the U.S. Immigration and Naturalization Service (INS), and military personnel, observed a small vessel reporting system database which tracked pleasure craft and associated user fee payments between the United States and Canada in the Washington/Victoria area. Customs plans to implement this system as a pilot program in the Buffalo/Ft. Erie area during fiscal year 1991.

In regard to the implementation of the above program, some confusion has arisen concerning the reporting procedures for vessels under 5 net tons in the Great Lakes area. Section 123.1(c)(1), Customs Regulations (19 CFR 123.1(c)(1)), requires the master of every vessel of less than 5 net tons arriving from Canada or Mexico otherwise than by sea, if carrying baggage or other merchandise, to immediately report arrival to the Customs officer at the nearest port of entry or customhouse. However, 19 U.S.C. 1433 provides for the immediate report of arrival regardless of tonnage, the carriage of baggage or merchandise, or
port of departure. In addition, INS Form I-68 (Canadian Border Boat Landing Permit) allows persons entering the United States in small pleasure craft of less than 5 net tons to do so under very limited conditions without reporting their arrival.

ISSUE:

Whether vessels under 5 net tons arriving in the Great Lakes area of the United States are required to report their arrival to Customs immediately pursuant to 19 U.S.C. 1433.

LAW AND ANALYSIS:

The Anti-Drug Abuse Act of 1986 (Pub. L. 99-570) amended the Tariff Act of 1930 relating to the arrival in the United States and the reporting to Customs by persons and of transportation conveyances. Specifically, section 433, Tariff Act of 1930, as amended (19 U.S.C. 1433(a)(1)) provides, in pertinent part that the masters of the following vessels arriving at any port in the United States shall immediately report the vessel's arrival to Customs at the nearest Customs facility: (A) any vessel from a foreign port or place; (B) any foreign vessel from a domestic port; or (C) any vessel of the United States carrying bonded merchandise, or foreign merchandise for which entry has not been made.

Pursuant to a document published in the Federal Register on November 3, 1988 (53 FR 44459) and in the Customs Bulletin of November 16, 1988, Customs proposed to amend the Customs Regulations to implement the above legislative changes. The proposed amendments however, did not address section 123.1(c)(1), Customs Regulations (19 CFR 123.1(c)(1)) which provides that the master of every vessel of less than 5 net tons arriving from Canada or Mexico otherwise than by sea, if carrying baggage or other merchandise, shall immediately report arrival to the Customs officer at the port of entry or customhouse nearest the point at which the vessel entered the territorial waters of the United States and shall not proceed until permission to proceed is granted.

In addition, the proposed amendments did not address section 123.2(b), Customs Regulations (19 CFR 123.2(b)) regarding vessels of less than 5 net tons which provides that the penalty imposed by 19 U.S.C. 1460 for failure to report or for proceeding inland without a permit applies only when such vessels are carrying baggage or merchandise.

The omission of proposed amendments to sections 123.1(c)(1) and 123.2(b) was an oversight in the drafting of the aforementioned document. We note, however, that the proposed changes were never adopted as final.

Accordingly, notwithstanding the requirements of the INS, in view of the amendments to the Tariff Act of 1930 by Pub. L. 99- 570, as set forth in 19 U.S.C. 1433, the provisions of section 123.1(c)(1) are superseded and any vessel, regardless of its tonnage, or whether it is operating in the Great Lakes area, or whether it is carrying baggage or merchandise, must immediately report its arrival to Customs. Furthermore, we note that Pub. L. 99-570 repealed 19 U.S.C. 1460 (referenced in section 123.2(b) as discussed above) which contained the penalty for failure to comply with the provisions of section 123.1(c)(1). Pursuant to Pub. L. 99-570, the assessment of civil and criminal penalties for violations of arrival, reporting, and entry requirements are now set forth in 19 U.S.C. 1436, as amended.

HOLDING:

Vessels under 5 net tons arriving in the Great Lakes area of the United States are required to report their arrival to Customs immediately pursuant to 19 U.S.C. 1433.

Sincerely,

B. James Fritz

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