us-cbp-cross-rulings-hq-109856•HQ 109856: Exemption from Vessel Entry and Clearance Requirements under 19 U.S.C. 1441(2) and 19 CFR 4.60(b)(3), Respectively.
HQ 109856: Exemption from Vessel Entry and Clearance Requirements under 19 U.S.C. 1441(2) and 19 CFR 4.60(b)(3), Respectively.
us-cbp-cross-rulings-hq-109856HQ 109856: Exemption from Vessel Entry and Clearance Requirements under 19 U.S.C. 1441(2) and 19 CFR 4.60(b)(3), Respectively.Guidance
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 109856
November 30, 1988
VES-5-07 CO:R:P:C 109856 PH
CATEGORY: Carriers
Mr. Ernie Gomez
Islander Cruises Ltd.
Post Office Box 158
Port Isabel, Texas 78578
RE: Exemption from Vessel Entry and Clearance Requirements under
19 U.S.C. 1441(2) and 19 CFR 4.60(b)(3), Respectively.
Dear Mr. Gomez:
This is with reference to your letter of November 1, 1988,
concerning Customs processing of the Panamanian-flag vessel LE
MISTRAL.
FACTS:
You state that Islander Cruises, Ltd., planned to begin
operation of day cruises by the Panamanian-flag vessel LE MISTRAL
from Port Isabel, Texas, on November 16, 1988. You state that
the vessel is to proceed to El Mesquital, Mexico, and return.
Upon arrival outside El Mesquital, the master of the vessel will
radio Mexican authorities and report arrival. At that point, the
Mexican authorities will determine if boarding is necessary or if
radio clearance will be granted. Nine cruises per week have been
scheduled for the vessel.
We understand from other sources that the vessel is a
passenger vessel with gambling facilities which are opened only
after the vessel has left United States territorial waters and
are closed before the vessel reenters United States territorial
waters. We also understand that although the vessel enters
Mexican waters, it may not be boarded by Mexican authorities, but
may be cleared by those authorities by radio. We assume that our
understanding, as related above, is correct for purposes of this
ruling.
ISSUE:
Whether a foreign-flag passenger vessel which makes more than
three cruises per week from a United States port to a point in
Mexican territorial waters and back to the United States port of
departure is subject to vessel entry and clearance requirements.
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LAW AND ANALYSIS:
Under 46 U.S.C. App. 91, any vessel bound to a foreign port
is required to obtain clearance from Customs (see 19 CFR 4.60-
4.75). Immediately upon the arrival in the United States of any
vessel from a foreign port or place, the vessel is required to
report arrival to Customs (19 U.S.C. 1433; 19 CFR 4.2 and 4.2a).
Within 48 hours of the arrival in the United States of a foreign
vessel, the vessel is required to make vessel entry (19 U.S.C.
1435; 19 CFR 4.3-4.9).
Exceptions from the vessel entry requirements are provided
for in 19 U.S.C. 1441. These exceptions are made applicable to
vessel clearance under section 4.60(b)(3), Customs Regulations
(19 CFR 4.60(b)(3)). Section 1441(2) of title 19, United States
Code, provides that:
The following vessels shall not be required to make entry at
the customhouse:
(2) Passenger vessels making three trips or oftener a
week between a port of the United States and a foreign
port, or vessels used exclusively as ferry-boats, car-
rying passengers, baggage, or merchandise: Provided,
That the master of any such vessel shall be required to
report such baggage and merchandise to the appropriate
customs officer within twenty-four hours after arrival.
The terms "foreign port" and "foreign port or place," when
used in the context in which they are used in the above
provisions, have been defined by the courts as "a port or place
exclusively within the sovereignty of a foreign nation (see The
ELIZA, 8 F. Cas. 445 (No. 4346) (C.C.D. Mass. 1813), and The
WINNIE, 65 F. 2nd 706 (3d Cir. 1933)).
On the basis of the foregoing, the vessel under consideration
would be required to obtain clearance when departing from the
United States and would be required to report arrival immediately
and make entry within 48 hours when returning to the United
States, unless exempt from any of these requirements. Assuming
that the vessel is a passenger vessel, it would be exempt from
clearance and entry under 19 U.S.C. 1441(2) and 19 CFR 4.60(b)(3)
if it makes three or more trips, as described above, per week.
The vessel would not be exempt from the immediate report of
arrival requirement in 19 U.S.C. 1333 and the master of the
vessel would be required to make the report provided for in 19
U.S.C. 1441(2).
For your information, the applicability to the described
operation of certain other laws administered and/or enforced by
Customs is briefly described below:
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1. The vessel would be exempt from the $397 fee provided for
in 19 CFR 4.22(b).
2. The passengers on the vessel would not be subject to the
$5 fee provided for in 19 CFR 24.22(g).
3. The vessel would be exempt from tonnage taxes (19 CFR
4.21(b)(9)).
4. Assuming that the vessel proceeds beyond United States
territorial waters (i.e., the belt 3 nautical miles wide,
adjacent to the coast of the United States and seaward of the
territorial sea baseline) and the vessel does not touch at
any United States point other than the point of embarkation
and disembarkation, the vessel would not violate the
passenger coastwise law (46 U.S.C. App. 289).
5. The vessel may be subject to the statutory provisions
concerning gambling ships (see 18 U.S.C. 1081-1083; see also,
15 U.S.C. 1175 and 18 U.S.C. 7). We are enclosing copies of
two Customs issuances on this subject (ruling dated October
19, 1979 (File: 104258/104086), and letter, dated November
28, 1988 (File: 109873)). As indicated in the November 28
letter, the currency reporting requirements may be applicable
to the vessel under consideration.
HOLDING:
A foreign-flag passenger vessel which makes more than three
cruises per week from a United States port to a point in Mexican
territorial waters and back to the United States port of depar-
ture is exempt from vessel entry and clearance under 19 U.S.C.
1441(2) and 19 CFR 4.60(b)(3) but, upon return to the United
States, is required to make the immediate report of arrival
required by 19 U.S.C. 1333 and the report of baggage and
merchandise required within 24 hours by 19 U.S.C. 1441(2).
Sincerely,
John E. Elkins
Acting Director, Regulatory
Procedures and Penalties Division
Enclosures
cc: Port Director, Brownsville (Attn: Ernest Tijerina)
Regional Commissioner, Southwest Region
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