HQ 109687: Use of a Canadian-flag sailboat, owned by residents of the United States, in the waters of the United States

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 109687
                                   October 11, 1988


            VES 4 011/02/03 CO:R:P:C    109687 BEW

            CATEGORY:  CARRIERS

            Mr. David J. Lyttle:
            122 Lockwood Road
            Syracuse, New York 12314

            RE:  Use of a Canadian-flag sailboat, owned by residents of the
                 United States, in the waters of the United States

            Dear Mr. Lyttle:

                 This is in reference to your undated letter, received on
            August 8, 1988, concerning the temporary importation of a
            Canadian sailboat into the United States for a trip of less
            than one year's duration.

            FACTS:

                 You state that you are a United States citizen who resides
            in Canada during the summer months, and in Syracuse, New York,
            during the rest of the year.  You state that in September of
            this year, you and your wife are planning to travel from
            Ontario, Canada, to the Florida Keys via the intercoastal
            waterway in a Canadian-built sailboat, and return to Canada
            next summer.  You state that the vessel was purchased in Canada
            and normally used and stored in Canada.  You state that if you
            were a resident of Canada, you would be eligible to apply for a
            cruising license under the provisions of section 4.94, Customs
            Regulations (19 CFR 4.94), and that with a cruising license the
            vessel would not be subject to entry and duty upon its arrival
            in a port of the United States.  You further state that since
            you are United States residents, under the provisions of
            section 4.94(a), the vessel is subject to duty when you make
            entry at the port of arrival in the United States.

                 You request an interpretation of 19 CFR 148.2(d), and ask
            that Customs rule that your trip of less than one year duration
            be considered a "short period of time" under sections 148.2(d)
            and 148.8 of the Customs Regulations in order that you may
            claim status as a nonresident and thus qualify for a cruising
            license under section 4.94.













                                         - 2 -


            ISSUES:

            1.  Whether a cruising license may be issued to a Canadian-flag
            pleasure boat, owned by a United States resident, when the
            vessel enters the United States for a temporary visit.

            LAW AND ANALYSIS:

                 The master of any foreign vessel arriving in a United
            States port, whether from a foreign port or another United
            States port, is required to make vessel entry under title 19,
            United States Code, section 1435 (19 U.S.C. 1453), and section
            4.3 of the Customs Regulations (19 CFR 4.3).  Such vessels are
            also required to clear when bound for a foreign port, and must
            have a permit to proceed from one United States port to
            another.

                 Title 46, United States Code, Appendix, section 104 (46
            U.S.C. App. 104), authorizes the issuance of cruising licenses
            to pleasure vessels of countries which extend reciprocal
            privileges to United States pleasure vessels.  Canada is such a
            country.  The determining factor as to whether a vessel is
            eligible for a cruising license is the documentation of the
            vessel and not the residency of the owner.  Section 4.94 of the
            Customs Regulations, concerns the issuance of cruising licenses
            which exempt foreign yachts from formal entry and clearance
            procedures.  Subsequent to the receipt of the cruising license,
            yachts may arrive and depart from the United States and cruise
            in specified waters of the United States without entering and
            clearing, without filing manifests and obtaining or delivering
            permits to proceed, and without the payment of entrance and
            clearance fees, or fees for receiving manifests and granting





























                                         - 3 -


            permits to proceed, duty on tonnage, tonnage tax, or light
            money.  The license is granted subject to the condition that
            the vessel will not engage in trade or violate the laws of the
            United States in any respect. (See 19 CFR 4.94(c), copy
            enclosed).  A cruising license does not exempt a vessel from
            the requirement to report its arrival in the United States to
            Customs immediately upon such arrival (see 19 U.S.C. 1433 and
            19 CFR 4.2, copy enclosed).  In addition, a yacht or pleasure
            boat owned by a resident of the United States or brought into
            the United States for sale or charter to a resident thereof is
            dutiable at the rate of 1.5 percent ad valorem, under item
            696.05 or 696.10, Tariff Schedules of the United States, copy
            enclosed.

                 We emphasize that although cruising licenses exempt yachts
            having them from the above described requirements while
            cruising in the United States, they are not required as a
            condition precedent to cruising in the United States or its
            waters.

                 Cruising licenses, as their name implies, are intended for
            the use of foreign vessels on relatively brief cruises in the
            United States and are not to be used as a form of permanent
            license to permit a foreign vessel to remain indefinitely in
            our waters.  A cruising license is not renewable.

                 Pursuant to 46 U.S.C. App. 104 and 19 CFR 4.94, an
            application for a cruising license is to be filed with Customs
            by the vessel owner or master.  Only yachts which are "used and
            employed exclusively as pleasure vessels" (see 46 U.S.C. App.
            104) may be granted cruising licenses.

                 For your information, 19 CFR 148.2 provides that citizens
            of the United States ... shall be deemed residents of the U.S.
            returning from aboard with the meaning of "residents" as used
            in schedule 8, part 2A. TSUS (19 U.S.C. 1202), in absence of
            satisfactory evidence that they have established a home
            elsewhere.ilable evidence presented to him.

                 Generally, if a returning person has been outside the
            United States for less than three years, a declaration by the
            person upon arrival that when he departed he intended never to
            return to the United States except for visits, will be
            considered, but will not be conclusive evidence of intent.

















                                         - 4 -


            Intent may be further examined by eliciting answers to such
            questions as:

                 (a)  the duration of your foreign stay; and

                 (b)  whether while aboard you maintained a home in the
                      United States.

                 If you meet the above stated conditions for nonresident
            Customs status, you will be accorded the exemptions from duty
            and tax available to a nonresident.

                 If you do not meet the above conditions, you are
            considered to be "returning resident to the United States".
            Generally, under the conditions set forth above a returning
            resident may be classified as a nonresident pursuant to section
            148.2(d) and 148.8, Customs Regulations, if your are entering
            the country for a "short visit".  If this is the case, the boat
            may be brought in free of duty under the provisions of items
            812.30, Tariff Schedules of the United States (TSUS), on
            condition that you will export the boat upon your departure
            from the United States.  Customs has held, however, that a stay
            in excess of 30 days raises a strong presumption that the visit
            does not fall into the category of a "short visit" within the
            meaning of section 148.2(d).

                 Contrary to the above, in Legal Determination 80-0153,
            dated October 28, 1980, the Customs Service ruled that a
            resident of the United States who resides seasonally in a
            contiguous foreign country (Canada and Mexico) and who returns
            to the United States on incidental trips may not claim optional
            nonresident Customs status for short visits in order to enter
            accompanying articles acquired aboard under the personal
            exemptions from duty and tax available to nonresidents.  The
            articles acquired abroad may be enter under the personal
            exemptions available to returning residents if they apply.  If
            duty is paid on the articles, the items may be entered duty
            free on subsequent importations upon satisfying Customs
            officers that duty has been paid.

            HOLDING:

                 1.  A cruising license may be issued to a Canadian-flag
                 pleasure boat, owned by a United States resident, when the
                 vessel enters the United States for a temporary visit.

                 2.  A returning resident of the United States may be claim
                 nonresident status when he is entering the United States













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                 for a short stay.  A stay in excess of 30 days gives rise
                 to a presumption that the visit does not fall into the
                 category of a "short visit" within the meaning of section
                 148.2(d).

                 3.  A resident of the United States who resides seasonally
                 in a contiguous foreign country (Canada and Mexico) and
                 who returns to the United States on incidental trips may
                 not claim optional nonresident Customs status for short
                 visits in order to enter accompanying articles acquired
                 aboard under the personal exemptions from duty and tax
                 available to nonresidents.  In addition, a Canadian-built,
                 Canadian-flag yacht or pleasure boat owned by a resident
                 of the United States which he sails into the United States
                 is dutiable at the rate of 1.5 percent ad valorem, under
                 item 696.05 or 696.10, Tariff Schedules of the United
                 States.  The owner of the vessel when traveling with the
                 vessel would be entitled to the personal exemption at the
                 time of entry, presently $400 per family member.

                                              Sincerely,




                                              B. James Fritz
                                              Chief
                                              Carrier Rulings Branch



















            CO:R:P:C:BEWhiting:10/4/88