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HQ 116568

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November 18, 2005

VES-5-RR:IT:EC 116568 GOB

CATEGORY: CARRIER

Frank J, Chmelik, Esq.
Chmelik Sitkin & Davis
1500 Railroad Avenue
Bellingham, WA 98225

RE: Vessel Entry and Clearance; 19 U.S.C. 1434; 46 U.S.C. App. 91

Dear Mr. Chmelik:

This letter is in reply to your letter of September 24, 2005, which this office received on November 1, 2005, on behalf of your client, Jim Jorgensen. You request a ruling with regard to charter fishing vessels that enter, fish and return from British Columbia waters. Our ruling follows.

FACTS:

You describe certain of the facts as follows:

My client, Mr. Jim Jorgensen, has been running a salmon fishing charter business out of Blaine, Washington for thirty eight (38) years. He regularly takes up to six (6) fishers from Blaine to troll in the waters in and around the United States San Juan Islands and the Canadian Gulf Islands. As one might imagine, the exact daily itinerary varies with the location or presumed location of the salmon species. As part of the salmon charters, Mr. Jorgensen is a Canadian registered business and is authorized to sell Canadian tidal water fishing licenses to his customers. As far as Mr. Jorgensen knows, his is the only fishing charter business out of Northwestern Washington that plies both United States and Canadian waters. The only other vessels and businesses that are similarly situated to Mr. Jorgensen’s are whale watching charters and self-guided charters that leave from Whatcom County, Washington and ply the waters of the United States and Canada to locate Orca whales for their passengers’ viewing. ISSUE:

The application of the vessel entry and clearance laws and regulations to the facts presented.

LAW AND ANALYSIS:

Title 19, United States Code, section 1433 (19 U.S.C. 1433) provides in pertinent part:

Immediately upon the arrival at any port or place within the United States or the Virgin Islands of –
any vessel from a foreign port or place;
. . . the master of the vessel shall report the arrival at the nearest customs facility or such other place as the Secretary may prescribe by regulations.

Title 19, United States Code, section 1434(a) (19 U.S.C. 1434(a)) provides in pertinent part:

Within 24 hours (or such other period of time as may be provided under subsection (c)(2) of this section) after the arrival at any port or place in the United States of –
any vessel from a foreign port or place;
. . .
the master of the vessel shall, unless otherwise provided by law, make formal entry at the nearest customs facility or such other place as the Secretary may prescribe by regulation.

Section 4.3(a), Customs and Border Protection (“CBP”) Regulations (19 CFR 4.3(a)) provides in pertinent part:

Unless specifically excepted by law, within 48 hours after the arrival at any port or place in the United States, the following vessels are required to make formal entry:

Any vessel from a foreign port or place;
. . .
Thus, the master of a vessel arriving in the U. S. from a foreign port or place must make formal entry within 48 hours after the arrival of the vessel at any port or place in the U.S.

Title 46, United States Code Appendix, section 91 (46 U.S.C. App. 91) provides in pertinent part:

Except as otherwise provided by law, any vessel of the United States shall obtain clearance from the Customs Service [now CBP] before proceeding from a port or place in the United States-
for a foreign port or place;
. . .

Section 4.60, CBP Regulations (19 CFR 4.60) provides in pertinent part:

Unless specifically excepted by law, the following vessels must obtain clearance from the Customs Service [now CBP] before departing from a port or place in the United States:

(1) All vessels departing for a foreign port or place; . . .

Title 19, United States Code, section 1441 (19 U.S.C. 1441) contains certain exceptions to vessel entry and clearance requirements. None of these exceptions is applicable in this case.

In HQ 115321 dated April 16, 2001, we stated:

It is Customs position, based on judicial interpretation, that the term “foreign port or place” means “ a port or place exclusively within the sovereignty of a foreign nation.” (see The Winnie, 65 F.2d 706,707)

In HQ 115169 dated October 26, 2000, we held:

Vessels leaving San Diego for the Coronado Islands of Mexico and the Mexican territorial waters adjacent thereto, and returning, are subject to the requirements imposed by 19 U.S.C. §§ 1433, 1434, and 46 U.S.C. App. § 91, unless exempted from the latter two pursuant to 19 U.S.C. § 1441(4).

It is the position of CBP that vessels which travel to the territorial waters of a foreign country, and have engaged in an activity such as charter party fishing in those waters, have gone to a foreign place for the purpose of the vessel entry and clearance laws and regulations. This position is consistent with previous issuances on this issue, e.g., HQ 111707 dated January 7, 1992, wherein we stated:

The Customs Service [now CBP] considers an American vessel which comes to rest in or engages in an activity in foreign waters to have been in a foreign place for purposes of section 1433.

Therefore, we find that Mr. Jorgenson is required to obtain vessel clearance prior to traveling to Canada and to make formal entry of his vessel upon his return from Canada.

We regret to inform you that we have no authority to waive any applicable fees.

HOLDING:

Pursuant to the applicable laws and regulations, as described above, vessels, such as the one under consideration, which travel to the waters of a foreign country, come to rest or engage in an activity in foreign waters, and return to the U.S. are required to obtain vessel clearance, report arrival, and make formal vessel entry.

Sincerely,

Glen E. Vereb
Chief

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