us-cbp-cross-rulings-hq-109687•HQ 109687: Use of a Canadian-flag sailboat, owned by residents of the United States, in the waters of the United States
HQ 109687: Use of a Canadian-flag sailboat, owned by residents of the United States, in the waters of the United States
us-cbp-cross-rulings-hq-109687HQ 109687: Use of a Canadian-flag sailboat, owned by residents of the United States, in the waters of the United StatesGuidance
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.
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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
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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.
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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
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