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HQ H017970





October 5, 2007

VES-3-02-OT:RR:BSTC:CCI H017970 JLB

CATEGORY: CARRIER

Ms. Carol-Beth Sheley
Senior Operations Vessel Manager
Quay Cruise Agencies U.S.A.
662 Switzer Street
10th Avenue Marine Terminal
San Diego, California 92101

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

Dear Ms. Sheley:

This letter is in response to your correspondence dated October 2, 2007, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the M/V SERENADE OF THE SEAS constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows.

FACTS

The voyage in question involves the transportation of the subject individuals aboard the non-coastwise-qualified M/V SERENADE OF THE SEAS (“the vessel”). One individual will embark on October 13, 2007 at Hilo, Hawaii while three other individuals will embark on October 14, 2007 at Honolulu, Hawaii. All four individuals will disembark at the port of San Diego, California on October 20, 2007. The cruise line’s agent has stated that the individuals will travel aboard the vessel in order to act as guest entertainers. Specifically, the individuals will perform, respectively, as a comedian, singer, and two will perform as jugglers.

ISSUE

Whether the individuals described above would be “passengers” 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, Customs Bulletin notice, dated June 5, 2002, 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 Headquarters Decision 116659, dated May 19, 2006; see also Headquarters Decision H005913, dated January 26, 2007.

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 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 116752, dated November 3, 2006, quoting HQ 116721.

In the present case, the individuals would be traveling aboard the non-coastwise-qualified vessel to act as entertainers. In Headquarters ruling letter H017032, dated September 14, 2007, Customs and Border Protection held that an individual traveling aboard a non-coastwise-qualified vessel as a comedian would not be a “passenger” within 46 U.S.C. § 55103. Therefore, as was the case in that ruling, under the facts presented, the individuals 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 individuals is not in violation of 46 U.S.C. § 55103.

HOLDING

The subject individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb, Chief

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