HQ 111504: Pleasure Vessel; Undocumented Foreign Vessel; Alien ownership; State Registered

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 111504

                         October 9, 1991

VES--03-CO:R:IT:C  110504 BEW

Category:  Carriers

Barbara Ehrich Locke, Esquire
1200 Brickell Avenue
P. O. Box 015441
Miami, Florida 33101

Re:  Pleasure Vessel; Undocumented Foreign Vessel; Alien
     ownership; State Registered

Dear Ms. Locke:

     This is reference to your request for a ruling concerning
the use of a Canadian-built, undocumented 41' sailing vessel in
the waters of the United States, which is owned by a resident
alien.

FACTS:

     You state that the subject vessel is owned by Mr. Malcolm
Elliott, a U. K. citizen who has lived in the United States for
over thirty years.  You state that Mr. Elliott resides on his
boat which is docked at the Dinner Key Marina, Miami, Florida.
You state that the boat was purchased in 1987, transported into
the United States, and all duties required by Customs laws were
paid by Mr. Elliott.  You state that he also paid Florida sales
tax on the vessel and registered it in the State of Florida.  You
state that on September 22, 1990, when Mr. Elliott returned from
the Bahamas, and reported to Customs, he was issued an
Immigration clearance but was told to report to the Marine office
of Customs with his Florida State Registration Certification.
When he arrived at the Marine office, you state that he was told
that he had to fill out a "cargo and manifest sheet."  He
questioned this procedure, and was told by Customs that his
vessel is an undocumented U.K. vessel which is required to make
entry and clearance each time the vessel passes north of the
Haulover Inlet, or south of Key Largo.  The original State
Registration Certification was retained at the Marine office and
a copy was returned to Mr. Elliott.

     You state that the vessel is used exclusively for pleasure
purposes, and that it does not engage in any coastwise
transportation of passengers or merchandise.  You state that
Mr. Elliott recognizes the need to make entry when returning from
a foreign port, however, his primary area of concern lies in the
fact that he frequently travels in the area between Palm Beach
County and the Florida Keys to visit friends and relatives.  You
state that Mr. Elliot's understanding of the regulations is that
in order to visit his parents in Boca Raton on the weekends,
something he does routinely, the vessel would have to be cleared
on his outbound trip from Miami, and enter and clear at the next
designated port (possibly West Palm Beach) on his way up the
coast, and enter and clear again on the return trip.  Your
letter requests a clarification of the status of the subject
vessel, and the Customs requirements with respect to the type of
voyage outlined above.  You also inquire as to whether the
subject vessel may fly a flag, and if so which flag is
permissible.

ISSUE:

     Whether a "licensed yacht" or undocumented foreign-built
pleasure vessel" which is state registered, and owned by a
resident alien in the United States, is exempt from entry and
clearance within the meaning of the provisions in 19 U.S.C.
1441(3) and 46 U.S.C. App.  91.

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 under the provisions of title 19, United States Code,
section 1433 (19 U.S.C.  1433), to immediately report its
arrival.  Section 1433, provides in pertinent part, that
immediately upon the arrival at any port or place in the United
States or Virgin Islands of:  (1) any vessel from a foreign port
or place; (2) any foreign vessel from a domestic port; or (3) any
vessel of the United States carrying bonded merchandise, or
foreign merchandise for which entry has not been made, the master
of the vessel shall report the arrival at the nearest customs
facility or such other place as the Secretary may prescribe by
regulation.

     In addition, 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.  1435), 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.

     Paragraph (3) of 19 U.S.C.  1441, exempts from entry in
the United States licensed yachts or undocumented American
pleasure vessels not engaged in trade nor in any way violating
the Customs or navigation laws of the United States and not
having visited any hovering vessel.  The statute requiring vessel
clearance of a vessel bound to a foreign port or place (46 U.S.C.
 91) contains a similar provision 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.

     Customs interpretation of the term "licensed yacht or
undocumented American pleasure vessel" in 19 U.S.C.  1441(3) and
46 U.S.C. App.  91, under which such vessels are exempt from
vessel entry and clearance under the circumstances described
therein, is as follows:

     (1)  A "licensed yacht or undocumented American pleasure
          vessel" 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.

     Customs has held that an undocumented American pleasure
vessel must meet the same requirements as a documented American
pleasure vessel, except that for its tonnage 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).  There is no
residency requirement for United States vessel documentation.

     Customs has ruled that an undocumented pleasure vessel which
is numbered under a State numbering system may not be considered
an undocumented American pleasure vessel unless it qualifies,
except for tonnage, for documentation under 46 U.S.C. 12102.

     Consistent with this conclusion, a "licensed yacht or
undocumented American pleasure vessel" does not include 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 an undocumented pleasure vessel owned by a foreign
citizen, regardless of whether it is numbered under a State
numbering system.  The Customs Regulations provide under section
4.3, footnote 9 (19 CFR 4.3 n. 9) that, "Every undocumented
vessel of 5 net tons or over owned by an alien, whether or not
such alien is a resident of the United States is a foreign
vessel".  (Consistent with this position, see also 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 (These laws do not include
laws relating to Customs entry requirements)).  Generally, a
vessel such as the subject vessel, which is 41', will admeasure
over 5 net tons.

     With regard to state numbering, 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
jurisdiction of the state with certain exceptions (see 33 CFR
174.11(b)).

     A vessel with a state certificate or number is not
considered "a documented vessel" as that term is used under laws
and regulations administered by the Customs Service.  Since Mr.
Elliott is a citizen of the United Kingdom, until such time as
his vessel becomes documented in the United Kingdom or other
foreign country, Customs considers his vessel an undocumented
U.K. vessel.

     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.  Great Britain 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.  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).  If the subject vessel were
documented under the United Kingdom or another country which
extends reciprocal privileges to the United States, it would be
eligible for a cruising license.

     Finally, you should be aware that under the provisions of
section 4.2a of the Customs Regulations (19 CFR 4.2a), there are
special requirements for reporting of arrival from any foreign
port or place by small vessels whose intended destination is a
point within the jurisdiction of Miami, Florida.  Operators of
small vessels (i.e. any vessel of less that 5 net tons, and any
private vessel, regardless of displacement) shall immediately
report their arrival in the United States.  With regard to the
trip from Miami to Boca Raton and return, Mr. Elliot would have
to clear his vessel at the port of Miami for the outbound trip
and report his arrival, enter and clear the vessel at the port of
West Palm Beach for his return trip to Miami.  A permit to
proceed may be issued on either his outbound trip and/or his
inbound trip to other U.S. ports where he wishes to make stops.

     Section 4.61(d) of the Customs regulations provides that
clearance shall not be granted to any foreign vessel using the
flag of the United States or any distinctive signs or markings
indicating that the vessel is an American vessel (see 22 U.S.C.
454a).

     Information concerning the flying of flags on vessels may be
obtained from the U.S. Coast Guard, Seventh Coast Guard District,
Miami, Florida, telephone number 305-536-5651.  You may also wish
to refer to Chapman's Nautical Guides on boating etiquette.

HOLDING:

     An undocumented pleasure vessel owned by a resident alien
in the United States, whether state registered or not, is for
Customs purposes considered an undocumented foreign vessel; and
is not exempt from entry and clearance within the meaning of the
provisions in 19 U.S.C.  1441(3) and 46 U.S.C. App.  91.

                                     Sincerely,




                                     B. James Fritz
                                     Chief
                                     Carrier Rulings Branch