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HQ 116747

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October 25, 2006

VES-3-02:RR:BSTC:CCI 116747 IDL

CATEGORY: CARRIER

Rufus Flores
Operations Department
Transmarine Navigation Corporation
817 Southmore Avenue
Suite 205
Pasadena, Texas 77502-1129

RE: 46 U.S.C. App. § 289; 19 CFR § 4.50(b)

Dear Mr. Flores:

This is in response to your letter, dated October 25, 2006, concerning the Passenger Vessel Services Act. Our ruling on this matter is set forth below.

FACTS:

The M/T BIBI M, a foreign-flagged vessel, requires repair and testing of its radar system. Testing will be required while the vessel is in transit. A radio technician from Denak Ship Management is available to repair and test the radar system while riding the vessel from Houston, Texas to New Orleans, Louisiana.

ISSUE:

Whether the use of a foreign-flagged vessel in transporting a radio technician from one U.S. port to another U.S. port for the purpose of repair and testing of the vessel’s radar system during transit would constitute a violation of 46 U.S.C. App. § 289?

LAW AND ANALYSIS:

U.S. Customs and Border Protection (CBP) enforces various navigation laws that deal with the use of vessels in what is recognized as coastwise trade. Included among these laws is the Act of June 19, 1986, as amended (24 Stat. 81; 46 U.S.C. App. § 289, sometimes called the coastwise passenger law, or the Passenger Vessel Services Act (PVSA)), which provides that:

No foreign vessel shall transport passengers between ports or places in the United States either directly or by way of a foreign port, under a penalty of $300 for each passenger so transported and landed.

CBP has consistently interpreted the prohibition set forth in 46 U.S.C. App. § 289 to apply to all vessels except United States-built, owned, and properly documented vessels. See also 46 U.S.C. §§ 12106, 12110. Furthermore, CBP has promulgated regulations pursuant to 46 U.S.C. App. §289.

Section 4.50(b) of the CBP Regulations (19 CFR 4.50(b)) defines a “passenger” as “any person carried on a vessel who is not connected with the operation of such a vessel, her navigation, ownership, or business.” Any connection in this regard must be direct and substantial. (See Customs Bulletin and Decisions, Vol. 36, No. 23, June 5, 2002, at p. 50).

The coastwise laws generally apply to points in the territorial sea, 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, in cases where the baseline and coastline differ.

Pursuant to section 4.50(b), “[p]ersons carried on a vessel may be classified as passengers even though they are not carried for hire and though they are employed by or for the benefit of the [vessel] owner or operator In accordance with previous Headquarters rulings, 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 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” (emphasis added). We note that “[p]ersons who are on board a vessel solely to perform functions after the vessel’s arrival at its destination have consistently been held to be passengers within the meaning of section 4.50(b).” See HQ 116721 (September 25, 2006).

Accordingly, the subject radio technician is not a “passenger” within the meaning of 19 CFR 4.50(b).

HOLDING:

The use of a foreign- flagged vessel in transporting a radio technician from one U.S. port to another U.S. port for the purpose of repair and testing of the vessel’s radar system during transit would not constitute a violation of 46 U.S.C. App.

Sincerely,

Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch

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