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HQ H023315




February 14, 2008

VES-3-02-OT:RR:BSTC:CCI H023315 LLB

CATEGORY: CARRIER

Mr. David Harriss
Maersk Line Limited
One Commercial Place
Norfolk, Virginia 23510-2103

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

Dear Mr. Harriss:

This letter is in response to your correspondence of February 14, 2008, in which you inquire about the coastwise transportation of the five individuals mentioned therein aboard the SEALAND MOTIVATOR. Our decision follows.

FACTS

The voyage in question involves the transportation of the five individuals, scientific technicians, therein aboard the non-coastwise-qualified SEALAND MOTIVATOR (the “vessel”) from Charleston, South Carolina to Houston, Texas. The individuals will embark on or about February 22, 2008, and will be determining background radiation emitted from the vessel as part of a security contract with the Department of Defense. Specifically, the individuals will determine normal levels of radiation aboard the vessel in order to ascertain abnormal levels of radiation in the event of a terrorist attack involving the use of radioactive materials. The subject individuals will disembark on or about February 29, 2008, in Houston.

ISSUE

Whether the individuals described in the FACTS section is 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. See 33 C.F.R. § 2.22(a)(2)(2007). The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103

Recodified by Pub. L. 109-304, enacted on October 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).

You state that the subject individuals will be transported on the vessel for the purpose of determining background levels of radiation emitted from the vessel as described in the “FACTS” section above. In this context, and 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 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. See also, HQ H020608 (Dec. 7, 2007) (holding that contractors for the Department of Homeland Security determining background radiation emitted from the vessel in order to ascertain abnormal radiation in the event of a terrorist attack were not passengers insofar as their activities were tied to the operation and business of the vessel itself); HQ H004502 (Dec. 15, 2006) (holding U.S. Department of Defense officials developing future security measures for a container vessel were not passengers).

In the present case, to the extent the individuals would be engaged 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 itself, as would be the case under the facts herein submitted, such individuals would not be considered passengers. See HQ 116721, supra; and see HQ 116659 (May 19, 2006) (referencing the “direct and substantial” test); see also, e.g., Customs telex 104712 (July 21, 1980) (finding that repairman were not passengers when carried aboard a foreign vessel between U.S. ports “for [the] purpose of repairing vessel en route between such ports.”).

We find that such individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103. We note that our determination is based only on the voyage as it is described in the “FACTS” section herein.

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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