us-cbp-cross-rulings-hq-109537•HQ 109537: Definition of the term "Licensed Yacht or Undocumented American Pleasure Vessel" for Purposes of 19 U.S.C. 1441(3) and 46 U.S.C. App. 91
HQ 109537: Definition of the term "Licensed Yacht or Undocumented American Pleasure Vessel" for Purposes of 19 U.S.C. 1441(3) and 46 U.S.C. App. 91
us-cbp-cross-rulings-hq-109537HQ 109537: Definition of the term "Licensed Yacht or Undocumented American Pleasure Vessel" for Purposes of 19 U.S.C. 1441(3) and 46 U.S.C. App. 91Guidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 109537
September 26, 1988
VES-4-01/VES-5-07 CO:R:P:C 109537 PH
CATEGORY: Carriers
Mr. Thomas Mattina
District Director of Customs
77 Southeast 5th Street
Miami, Florida 33131
RE: Definition of the term "Licensed Yacht or Undocumented
American Pleasure Vessel" for Purposes of 19 U.S.C. 1441(3)
and 46 U.S.C. App. 91
Dear Mr. Mattina:
This is with reference to your memorandum of May 11, 1988
(Your Reference: VES-5-DD:I:S AKL), concerning the status of
a state-numbered vessel owned and operated by a foreign
citizen who is a resident of the United States.
ISSUE:
What is a "licensed yacht or undocumented American
pleasure vessel," within the meaning of the provisions in
19 U.S.C. 1441(3) and 46 U.S.C. App. 91 exempting such
vessels from entry and clearance under certain
circumstances?
LAW AND ANALYSIS:
Section 441(3), Tariff Act of 1930, as amended (19 U.S.C.
1441(3)), provides, in pertinent part, that:
The following vessels shall not be required to make entry
at the customhouse:
(3) ... licensed yachts or undocumented American
pleasure vessels not engaged in trade: Provided, That
such vessels do not in any way violate the customs or
navigation laws of the United States and have not visited
any hovering vessel: Provided further, That the master
of any such vessel which has on board any article
required by law to be entered shall be required to report
such article to the appropriate customs officer within
twenty-four hours after arrival.
The statute requiring vessel clearance of a vessel bound to a
foreign port or place (46 U.S.C. App. 91) contains a similar
pro- vision under which "a licensed yacht or an undocumented
American pleasure vessel not engaged in any trade nor in any
way violating the customs or navigation laws of the United
States" is exempt from clearance.
In interpreting the meaning of the term "undocumented
American pleasure vessel," we have held that:
To be considered an undocumented American pleasure vessel
(see 19 U.S.C. 1441(3)), a vessel must be wholly owned by
a citizen and resident of the United States .... [A]n
undocu- mented pleasure vessel is not considered
"American" by the Customs Service merely because it
receives a state number
.... [Ruling letter dated April 22, 1982, File:
105332.]
More recently, we stated, in this regard, that:
For purposes of the navigation laws administered by the
Customs Service, a pleasure boat not documented by a
foreign nation which has been issued a state number is
considered to be an undocumented American pleasure
vessel, regardless of its ownership. [Ruling letter
dated August 29, 1986, File: 108354.]
You ask that we clarify these interpretations of the term
"undocumented American pleasure vessel" with regard to an
undocu- mented pleasure vessel numbered under a state
numbering system and owned by someone other than a United
States citizen.
Initially, we note that a pleasure vessel documented by
the United States Coast Guard under 46 U.S.C. Chapter 121
would be considered a "licensed yacht" under 19 U.S.C.
1441(3) and 46 U.S.C. App. 91 (see 46 U.S.C. 12109, providing
for the issuance of recreational vessel licenses, and 46
U.S.C. 2101(10), defining "documented vessel" as a vessel for
which a certificate of docu- mentation has been issued under
Chapter 121 of Title 46). A pleasure vessel documented under
a foreign flag would not be con- sidered a licensed yacht or
undocumented American pleasure vessel under sections 1441(3)
and 91 regardless of whether it was li- censed under a state
numbering system (see 46 U.S.C. 2101(12), defining "foreign
vessel" as a vessel of foreign registry or operated under the
authority of a country except the United States; see also,
Whiteman, Digest of International Law, vol. 9, pp. 25-27).
An undocumented pleasure vessel owned by a citizen and
resident of the United States would, of course, be considered
an undocumented American pleasure vessel under sections
1441(3) and 91 (see Whiteman, supra., Vol. 9, p. 37).
With regard to an undocumented pleasure vessel owned by a
citizen who is not a resident of the United States, we note
that we stated in the April 22, 1982, letter ruling quoted
above that "[t]o be considered an undocumented American
pleasure vessel ..., a vessel must be wholly owned by a
citizen and resident of the United States. (Emphasis
added.) (See also, ruling letter to the District Director of
Customs in Seattle, Washington, dated March 26, 1968, and
letter dated April 29, 1982, File: 105288.)
We have thoroughly considered this issue. It is not
apparent to us from the legislative history of the amendment
(section 501, Customs Simplification Act of 1954; 68 Stat.
1140) which added the provision regarding undocumented
American pleasure vessels to sections 1441(3) and 91 that
such vessels must be owned by a United States citizen and
resident (see Senate Report No. 2326, August 6, 1954, printed
at 1954 U.S.C.C.A.N. 3900; see also, the memorandum providing
the views of the Department of the Treasury on a similar
provision transmitted to the Chairman of the House Committee
on Ways and Means with a letter dated April 23, 1954, from
the Acting Secretary of the Treasury). Nor do our early is-
suances concerning this provision contain such an
interpretation (see, e.g., letter to Senator George Smathers
dated February 18, 1955, and Marine Circular No. 143, dated
May 19, 1955).
We believe that the most rational resolution of this
issue is to be found in the United States vessel
documentation require- ments. An undocumented American
pleasure vessel should be the same as a documented American
pleasure vessel except that it is not documented. To be
eligible for documentation, a vessel must be: (1) of at
least 5 net tons; (2) not registered under the laws of a
foreign country; and (3) owned by a citizen of the United
States (see 46 U.S.C. 12102; 46 CFR Subpart 67.03; see al-
so, 19 CFR 4.80(a)(2) and (3) in which allowance is made for
ves- sels which may not be documented because of their
tonnage). There is no residency requirement for United
States vessel docu- mentation. On this basis, we conclude
that an undocumented plea- sure vessel which is owned by a
United States citizen would be considered an undocumented
American pleasure vessel for purposes of sections 1441(3) and
91, regardless of whether or not that United States citizen
is a United States resident.
Consistent with this conclusion, we believe that an
undocumented pleasure vessel which is numbered under a State
num- bering system may not be considered an undocumented
American pleasure vessel unless it qualifies, except for
tonnage, for documentation under 46 U.S.C. 12102 (i.e., it
must be United States owned and may not be registered under
the laws of a foreign country). Thus, the August 29, 1986,
ruling letter (File: 108354), is modified. This position is
consistent with footnote 9 to section 4.3, Customs
Regulations, and other authorities on this subject (see The
Chiquita, 19 F.2d 417 (1927); Moore, International Law, vol.
2, pp. 1002-1009, cited in The Chiquita; and 80 Corpus Juris
Secundum 569, citing The Chiquita; but see, contra, 46
U.S.C. 2101(46) defining "vessel of the United States" to
include numbered vessels for purposes of 46 U.S.C. Subtitle
II).
With regard to the above determination, we note that
under the Coast Guard Regulations on state numbering, a
state numbering system may require the numbering of any
vessel subject to the ju- risdiction of the state, with
certain exceptions not applicable in this case (see 33 CFR
174.11(b)). Thus, the fact that an un- documented pleasure
vessel may be numbered under a state number- ing system is
not conclusive evidence that the vessel qualifies, except for
tonnage, for documentation under 46 U.S.C. 12102.
HOLDINGS:
1. A "licensed yacht or undocumented American pleasure
vessel," within the meaning of the provisions in 19 U.S.C.
1441(3) and 46 U.S.C. App. 91 exempting such vessels from
entry and clearance under certain circumstances, includes:
(a) A pleasure vessel documented by the United States
Coast Guard under 46 U.S.C. Chapter 121; and
(b) An undocumented pleasure vessel owned by a citizen
of the United States, regardless of whether the United
States citizen is a resident of the United States and
regardless of whether the vessel is numbered under a
state numbering system.
2. A "licensed yacht or undocumented American pleasure
vessel," within the meaning of the provisions in 19 U.S.C.
1441(3) and 46 U.S.C. App. 91 exempting such vessels from
entry and clearance under certain circumstances, does not
include:
(a) A pleasure vessel documented under a foreign flag,
regardless of whether it is owned by a citizen of the
United States and regardless of whether it is numbered
under a state numbering system; and
(b) An undocumented pleasure vessel owned by a foreign
citizen, regardless of whether it is numbered under a
state numbering system.
EFFECT ON OTHER RULINGS:
Ruling letter dated August 29, 1986 (File: 108354), is
modified.
Sincerely,
John E. Elkins
Acting Director, Regulatory
Procedures and Penalties Division
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