One our members brought to VIPCA’s attention the fact that some unidentified day charter operators (not necessarily VIPCA members) have been relying on a federal statute (19 U.S.C. Sec. 1441) to support their decision to not make entry with their passengers upon returning to the USVI from the BVIs. On its face, an amendment to 19 USC 1441 in 1984, which exempted excursion boats departing from the USVI from having to report arrival or make entry upon return, seemed intriguing and worth investigating further. On August 26, 2019 correspondence was sent to Director Todd Bellew, the CBP Area Port Director for the USVI. Promptly thereafter, VIPCA received both a telephone call from Director Bellew, as well as an email from Chief Supervisory CBP Office Allen Smith, regarding VIPCA’s inquiry.
As mentioned above, the amendment to 19 U.S.C. Sec. 1441 that was of particular concern to VIPCA was enacted in 1984 — and hence before the fateful 9/11/2001 attacks. Following those attacks, new laws were implemented in 2003 that did away with the separate agencies previously known as the “Immigration and Naturalization Service” and the “Customs Service” as both agencies were absorbed into the newly formed US Department of Homeland Security. A branch of the U.S. Department of Homeland Security, U.S. Customs and Border Protection is the single unified border and port of entry agency of the United States. The CBP joins together the Customs Inspector, the Immigration Inspector and the Agriculture Inspector at the nation’s points of entry — borders, airports, and seaports.
Importantly, 19 USC Sec. 1441 was a statute that applied solely to the Customs Service, not Immigration and Naturalization. So, while the statute may have exempted an excursion vessel from having to undergo clearance with Customs, it did not address the Immigration requirements at the time.
As Director Bellow explained to Oriel Blake, “formal clearance” is for vessels with cargo and that our members are exempt; however, member vessels still need to report at a CBP facility in person for acknowledgment of crew and passengers.
CBP Officer Smith also emailed as follows: “Customs and Border Protection was created in 2003 to merge the former US Immigration Service and US Customs Service. CBP not only enforces 19 CFR for Vessel entrance, also 8 CFR for Immigration affairs. [(§235.1 Scope of examination. (a) General. Application to lawfully enter the United States shall be made in person to an immigration officer at a U.S. port-of-entry when the port is open for inspection, or as otherwise designated in this section”.]
Officer Smith also offered these websites as a resource for our members:
https://www.govinfo.gov/content/pkg/CFR-2011-title8-vol1/pdf/CFR-2011-title8-vol1-sec235-1.pdf.
And
https://www.cbp.gov/travel/pleasure-boats-private-flyers
In summary, while it would have been quite advantageous for both term and day charter vessels to be exempted from making entry upon arrival back into the USVIs from the BVIs, given the departmental changes in 2003 and the creation of the Customs and Border Protection, 19 USC Sec. 1441 does not provide legal justification for failing to make entry upon return to the USVI. Notably, a failure to make such entry carries with it stiff penalties:
U.S. Customs and Border Protection Notice of Violation: Civil penalty: any master of a vessel who fails to report arrival is liable for a civil penalty of $5000 for the first violation and $10,000 for each subsequent violation, and any conveyance used in connection with any such violation is subject to seizure and forfeiture.[1][1]
