HQ 109856: Exemption from Vessel Entry and Clearance Requirements under 19 U.S.C. 1441(2) and 19 CFR 4.60(b)(3), Respectively.

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.














                                        - 2 -


          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:











                                        - 3 -


              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