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HQ H018859





November 13, 2007

VES-3-OT:RR:BSTC:CCI H018859 LLB

CATEGORY: CARRIER

Dr. Scott M. Gende
U.S. Department of the Interior
National Park Service
Glacier Bay Field Station
3100 National Park Road
Juneau, Alaska 99801

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

Dear Dr. Gende:

This is in response to your correspondences of October 15 and 24, and November 6, 2007, in which you inquire about the coastwise transportation of shipboard ecologists aboard non-coastwise qualified vessels. Our decision follows.

FACTS

The National Park Service, NOAA, and the National Fish and Wildlife Foundation are implementing a study to identify factors and conditions that result in cruise ships striking and killing humpback whales, specifically, in the region of the Glacier Bay National Park (GBNP). To implement the study, the ecologists would be positioned on the bows of vessels that are navigating through the GBNP to record separation distances between vessels and whales using laser rangefinder binoculars while simultaneously recording these conditions, including variability in vessel speed, associated with the whale fatalities. In addition, while the ecologists are positioned on the bows of the vessels, they will be communicating directly to the bridge via radio the locations of the whales so the pilots may determine the best course to avoid striking the whales.

The study would require the following. The proposed voyages in question involve the transportation of the foregoing shipboard ecologists aboard non-coastwise-qualified vessels, mostly, those operated by the Holland America cruise line. The ecologists would embark in Skagway, Alaska and disembark in Ketchikan, Alaska.

ISSUE

Whether the individuals described in the FACTS section above are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 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

Formerly 46 U.S.C. App. § 289. Recodified by Pub. L. 109-304 (Oct. 6, 2006). which provides:

(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- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) 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.

The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide:

A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business.

19 C.F.R. § 4.50(b).

To this end, most significantly, a legal notice published in the June 5, 2002, Customs Bulletin, in precise concert with the protectionist nature of section *46 U.S.C. § 55103, The June 5, 2002, notice was issued under the former codification of § 55103, 46 U.S.C. App. § 289. See n. 1, supra. imposed a circumscribed construction as to the meaning of the term "passenger" under the U.S. coastwise trade laws, including section 55103. Under this strict interpretation of the term “passenger,” as finalized in the June 5, 2002, Customs Bulletin notice, persons transported on a vessel are considered passengers unless they are "directly and substantially" connected with the operation, navigation, ownership or business of that vessel itself. See e.g., HQ 110967 (Apr.12, 1990) (finding that to the effect that persons on commercial (non-pleasure) vessels are considered passengers unless they enjoy some status which ties them "intimately" to the operation, navigation, ownership or business of the vessel itself).

In the present case, you propose to transport the subject individuals to collect data regarding the distance patterns of humpback whales in relation to cruise ships that navigate the Glacier Bay National Park. The foregoing research study in and of itself does not connect the individuals directly and substantially with the business, operation, or navigation of the vessel itself. Rather, it appears that the research activity is connected to the operation of all cruise line vessels that navigate the Glacier Bay National Park. However, because these shipboard ecologists will also be relaying the locations of the whales to the bridge of each vessel they embark, in real time during the course of the study, i.e. communicating to the pilot that a whale strike is imminent thereby allowing the pilot to decide on an alteration of course or speed (relative to other factors), we conclude that such activity directly and substantially connects these individuals to the navigation of the vessel itself.

To the extent that the subject individuals would be engaging in any shipboard activities while traveling on the foreign vessel between coastwise ports, that would be “directly and substantially” related to the operation or business of the vessel itself, such individuals would not be considered passengers within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b).

HOLDING

The individuals described in the FACTS section above 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 would not be in violation of 46 U.S.C. § 55103.

Sincerely,

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

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