HQ 112820: Cruising license; 19 U.S.C. app. 104; 19 C.F.R. 4.94; Pleasure

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 112820

                         September 14, 1993

VES-4-02-CO:R:IT:C  112820 DEC

CATEGORY:  Carriers

Mr. Bene Hoffman
Regional Manager
Stichting Marine Services, Washington
1436 U Street, N.W.
Washington, D.C.  20009

RE:  Cruising license; 19 U.S.C. app.  104; 19 C.F.R.  4.94;
     Pleasure

Dear Mr. Hoffman:

     This is in response to your July 26, 1993, letter seeking
reinstatement of the cruising license for the M/V GREENPEACE.  Our
ruling on this request is set out below.


FACTS:

     The M/V GREENPEACE is a Netherlands flag motor yacht which its
owner, Stichting Rubicon, is chartering to Stichting Marine Services
for the 1993 calendar year.  Greenpeace U.S.A. is currently
chartering the M/V GREENPEACE from Stichting Marine Services, but a
written charter contract does not exist.  Greenpeace U.S.A.
reimburses Stichting Marine Services for various costs such as fuel
for outboard engines and inflatables, communication used by the
campaigns, and rent of extra gangway for open boat events.  While
this list is not all inclusive, it is representative of the
reimbursable costs.

     The M/V GREENPEACE applied for and received a cruising license
on June 15, 1993 from the United States Customs Service in Key West,
Florida.  On July 1, 1993, the GREENPEACE arrived in Charleston,
South Carolina.  According to a Customs official in Charleston, the
visit of the vessel was a well publicized promotion of the
Greenpeace organization's stance on environmental issues.  The
public was invited to tour the vessel, voluntarily contribute to the
Greenpeace organization, attend workshops/seminars on various
environmental issues, and obtain various printed materials detailing
other environmental problems.

     On July 7, 1993, a Customs official boarded the GREENPEACE and
requested the surrender of their cruising permit.  Subsequently, the
master of the vessel made formal entrance and clearance under the
commercial procedures.


                                 -2-


ISSUE:

     Whether a motor yacht registered in a country contained in 19
C.F.R.  4.94 engaged in a multi-city tour promoting a particular
cause may be considered to be engaged exclusively for pleasure
making it eligible for a cruising license pursuant to 46 U.S.C.
 104.


LAW AND ANALYSIS:

     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.  The Netherlands is such a country.  Title
19, Code of Federal Regulations, section 4.94 (19 C.F.R.  4.94)
addresses the issuance of cruising licenses which exempt foreign
yachts from formal entry and clearance procedures.  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.  It
has long been Customs position that vessels operating with cruising
licenses are prohibited from engaging in foreign trade, the Great
Lakes trade, the fisheries, or any other type of trade, including
chartering.  Emphasis added.  More specifically, 46 U.S.C. app.  104
states that:

           the Commissioner of Customs may authorize and
           direct the customs authorities at the various
           ports of entry of the United States to allow
           yachts from such foreign port used and employed
           exclusively as pleasure vessels to arrive at
           and depart from any port of the United States . . .
           without the payment of any charges for entering 
           or clearing . . ..

46 U.S.C. app.  104 (1992).

     We cannot characterize the use of the M/V GREENPEACE in the
United States as a means to promote environmental awareness as a use
exclusively for pleasure.  The term pleasure is defined to be:

           1.  An enjoyable sensation or emotion; delight.
           2.  A source of enjoyment.  3.  Amusement,
           diversion, or worldly enjoyment.  4.  Sensual
           gratification or indulgence . . ..

The American Heritage Dictionary 951 (2d ed. 1985).

While we recognize that the participants of the voyage may derive
pleasure from their experiences, the purpose of the voyage and use
of the vessel is not exclusively for the pleasure of the
participants.  See Headquarters Ruling 111796 (Aug. 8, 1991).  The 
                                 -3-


voyage enjoys the financial sponsorship of the Greenpeace-related
organizations while its apparent goal is to promote Greenpeace's
fight against the world's numerous environmental hazards as
evidenced by the literature that was distributed, the
workshops/seminars  on current environmental issues, and the
requests for voluntary financial support of Greenpeace.

     The revocation of the GREENPEACE's cruising permit in
Charleston, South Carolina, was justified on the basis that the
vessel was not being used exclusively for pleasure.  In addition,
there is evidence in the record indicating that the vessel may have
been engaged in trade and violated the passenger coastwise law. 
Since the provisions of the cruising license explicitly forbid the
vessel from engaging in trade and from violating any United States
law, either of these violations may serve as an additional basis to
revoke the cruising license.  Customs is not relying on these two
potential violations in upholding the revocation of the GREENPEACE's
cruising license because there is a lack of conclusive evidence, but
offers them as potential alternate bases on which to uphold the
revocation.

     First, 19 C.F.R.  4.94(c) sets forth the qualifications for
eligible vessels wishing to obtain cruising licenses.  More
specifically, it provides that a cruising license shall be granted
subject to the condition that the vessel not engage in trade. 
Customs has consistently held that this provision forbids the vessel
from participating in foreign trade, the Great Lakes trade, the
fisheries, or any other type of trade, including chartering.
Headquarters Ruling 106247 (Nov. 9, 1983).  Since there is no
written charter agreement between Greenpeace U.S.A. and Stichting
Marine Services, the presumption is that it is a time or voyage
charter.  Consequently, the issue of whether the GREENPEACE is
engaged in chartering activities which constitutes an engagement in
trade is suspect.

     Second, 19 C.F.R.  4.94(c) states that a cruising license shall
not be granted to a vessel in violation of any law of the United
States.  Title 46, United States Code, appendix, section 289 (46
U.S.C. app.  289) expressly prohibits a foreign vessel from
transporting "passengers between ports or places in the United
states, either directly or by way of a foreign port . . .."  19
U.S.C. app.  289 (1992).  The Customs Regulations define "passenger"
for purposes of section 289 as "any person carried on a vessel who
is not connected with the operation of such vessel, her navigation,
ownership, or business."  19 C.F.R.  4.50(b)(1993).  Based on the
crew lists submitted, there is a potential passenger coastwise law
violation.  The names of Cece Fadope and Steve Shalhorn are listed
on the crew list upon departure from Charleston bound for Norfolk. 
The crew list upon departure from Norfolk bound for New York does
not include these two names.  More importantly, these two
individuals are identified in the crew list as campaigners.  It
appears that these individuals are in no way connected to the
operation, navigation, or business of the vessel.
                                 -4-


     Pending a Norfolk Customs investigation into whether these two
individuals are passengers rather than members of the vessel's crew,
a passenger coastwise penalty may issue.  A coastwise law violation
would be sufficient grounds to revoke a cruising license pursuant to
19 C.F.R.  4.94.


HOLDING:

     The M/V GREENPEACE is ineligible for a cruising license given
its current use as detailed in the Law and Analysis portion of this
ruling.  Therefore, it is not exempt from the entry and clearance
laws administered by the Customs Service.  The Customs Service in
Charleston, South Carolina properly revoked the M/V GREENPEACE's
cruising license.

                                Sincerely,




                                Stuart P. Seidel
                                Director, International Trade
                                Compliance Division