Top-ranking members of the U.S. House Committee on Transportation are asking Canada to allow technical stops.

[mianmike]

It will be interesting to see if Canada allows technical stops.  A couple of CC posters have stated technical stops are not permitted by U.S. Customs.  I have not been able to find that law or regulation.  I hope there is a solution. 

 

If technical stops do not come about Rep. Don Young this week introduced the Alaska Tourism Recovery Act, asking for a temporary "workaround" of the PVSA.

 

As someone who has an Alaska cruise in August, I hope they are successful.  

 

 https://www.travelweekly.com/Cruise-Travel/Congress-proposes-a-solution-to-Canadas-big-ship-cruise-ban

[njhorseman]

5 hours ago, mianmike said:

It will be interesting to see if Canada allows technical stops.  A couple of CC posters have stated technical stops are not permitted by U.S. Customs.  I have not been able to find that law or regulation.  I hope there is a solution. 

 

If technical stops do not come about Rep. Don Young this week introduced the Alaska Tourism Recovery Act, asking for a temporary "workaround" of the PVSA.

 

As someone who has an Alaska cruise in August, I hope they are successful.  

 

 https://www.travelweekly.com/Cruise-Travel/Congress-proposes-a-solution-to-Canadas-big-ship-cruise-ban

I have seen the regulatory change that disallowed technical stops and I can assure you it exists. The regulation was adopted about 10 or 12 years ago because NCL objected to cruise lines being able to make round trip cruises from the West Coast to Hawaii and back without making a true foreign port call. The ships would make a brief technical stop in Ensenada to satisfy the PVSA  foreign port call requirement . NCL wanted to force them to make an actual port call and their request was successful.

 

Even if Canada were to allow technical stops during its current cruise ship ban such cruises would still be in violation of the PVSA so any legislator making that request of the Canadian government is either ignorant of US law or just trying to make political hay by fooling their constituents who don't know any better.

 

Nor could an executive order be used as a PVSA workaround as as the law only permits such an order for national security reasons.

 

Legislation granting a PVSA waiver is the only possible solution to the problem.

 

[mianmike]

1 minute ago, njhorseman said:

I have seen the regulatory change that disallowed technical stops and I can assure you it exists.

 

Legislation granting a PVSA waiver is the only possible solution to the problem.

 

 

I keep hearing a technical stop is not allowed; yet no one can locate the regulation.  Weird.  I would really like to read this published regulation.  I have never had such a hard time locating a specific C.F.R..  Where did they "hide" it? 

 

A PVSA waiver via legislation is the cleanest option. 

[njhorseman]

11 minutes ago, mianmike said:

 

I keep hearing a technical stop is not allowed; yet no one can locate the regulation.  Weird.  I would really like to read this published regulation.  I have never had such a hard time locating a specific C.F.R..  Where did they "hide" it? 

 

A PVSA waiver via legislation is the cleanest option. 

Apparently the cruise lines affected by the regulation had no difficulty finding it because they all discontinued the technical stop in Ensenada and started making it an actual port call that most consider rather unattractive. 

Perhaps later today when I'm actually awake I'll try to dig up CFR reference again...but only if I've totally lost my mind.

 

[njkate]

6 hours ago, njhorseman said:

I have seen the regulatory change that disallowed technical stops and I can assure you it exists. The regulation was adopted about 10 or 12 years ago because NCL objected to cruise lines being able to make round trip cruises from the West Coast to Hawaii and back without making a true foreign port call. The ships would make a brief technical stop in Ensenada to satisfy the PVSA  foreign port call requirement . NCL wanted to force them to make an actual port call and their request was successful.

 

Even if Canada were to allow technical stops during its current cruise ship ban such cruises would still be in violation of the PVSA so any legislator making that request of the Canadian government is either ignorant of US law or just trying to make political hay by fooling their constituents who don't know any better.

 

Nor could an executive order be used as a PVSA workaround as as the law only permits such an order for national security reasons.

 

Legislation granting a PVSA waiver is the only possible solution to the problem.

 

And now it has come back to bite right in the ass

[coastcat]

I found the Federal Register entry for what looks like the initial request for action:

 

https://www.govinfo.gov/content/pkg/FR-2007-11-21/pdf/E7-22788.pdf

 

From reading the initial responses, it looks like NCL America (aka NCL’s Hawaii operations) wanted to require foreign port stops of 48 hours in order to meet PVSA law. As you might imagine, the West Coast ports were not happy about this because it would impact Alaska and Mexican Riviera cruises as well as the LA/SF-to-Hawaii routes. 

Edited February 26, 2021 by coastcat

[farmersfight]

1 hour ago, coastcat said:

I found the Federal Register entry for what looks like the initial request for action:

 

https://www.govinfo.gov/content/pkg/FR-2007-11-21/pdf/E7-22788.pdf

 

From reading the initial responses, it looks like NCL America (aka NCL’s Hawaii operations) wanted to require foreign port stops of 48 hours in order to meet PVSA law. As you might imagine, the West Coast ports were not happy about this because it would impact Alaska and Mexican Riviera cruises as well as the LA/SF-to-Hawaii routes. 

 

Thanks for posting. Yeah, requiring foreign flagged cruise ships to call at a foreign port for at least 48 hrs (2 days!) and more than 50% of the time at the other U.S. ports plus allow passengers to go ashore, took care of the practice of "technical stops" in Ensenada, MX.

 

I wonder about the closed loop (round trip) cruises out of Seattle, to Alaskan ports that stop in Victoria, BC. They obviously don't spend 48 hrs in port in Victoria but I'm sure passengers are allowed to go ashore. Maybe the 48 hr port stay requirement was relaxed?

[mianmike]

3 hours ago, coastcat said:

I found the Federal Register entry for what looks like the initial request for action:

 

https://www.govinfo.gov/content/pkg/FR-2007-11-21/pdf/E7-22788.pdf

 

From reading the initial responses, it looks like NCL America (aka NCL’s Hawaii operations) wanted to require foreign port stops of 48 hours in order to meet PVSA law. As you might imagine, the West Coast ports were not happy about this because it would impact Alaska and Mexican Riviera cruises as well as the LA/SF-to-Hawaii routes. 

 

Yes, that Federal Register proposal has been posted before.  It obviously was never codified.  Given no one can seem to find a published regulation prohibiting technical stops, I can't help but wonder if that Federal Register proposal has confused people into thinking there is a regulation.  I'll keep looking for proof of life for this illusive mystical technical stop regulation.  I'll also keep waiting/looking for a U.S. Customs' press release giving clarification regarding the Congressional member's efforts to  persuade Canada to allow technical stops.  If there is a regulation prohibiting technical stops I would expect U.S. Customs to chime in soon and tamp down any false hope over the possibility of technical stops.   Hopefully we'll have clarification soon. 

Edited February 26, 2021 by mianmike

[chengkp75]

As njhorseman correctly states, it was NCL's original request to ban technical stops in Mexico, that led the MARAD (the US Maritime Administration) to question CBP about enforcement of the PVSA, and it was CBP alone (or perhaps with MARAD's assistance) that came up with the time limits on ports, etc, not NCL.  When CBP posted their proposed rule change, even NCL saw that it would preclude any Alaskan cruises, and requested that CBP scale back to the original request, simply that technical stops were not allowed.

11 minutes ago, mianmike said:

 

Yes, that Federal Register proposal has been posted before.  It obviously was never codified.  Given no one can seem to find a published regulation prohibiting technical stops, I can't help but wonder if that Federal Register proposal has confused people into thinking there is a regulation.  I'll keep looking for proof of life for this illusive mystical technical stop regulation.  I'll also keep waiting/looking for a U.S. Customs' press release giving clarification regarding the Congressional member's efforts to  persuade Canada to allow technical stops.  If there is a regulation prohibiting technical stops I would expect U.S. Customs to chime in soon and tamp down any false hope over the possibility of technical stops.   Hopefully we'll have clarification soon. 

You will note that CBP made this an "interpretive rule", which does not need to be "finalized" according to the Federal Register's website:

 

"Interpretive
 rules, 
policy 
statements,
 and
 other
 guidance
 documents
 may
 be
 issued 
any time
 after
 a
final 
rule
 is 
published 
to 
help 
the 
public 
understand
 to 
how 
a 
regulation 
applies 
to 
them
 and 
affects
their 
interests.


 An 
agency
 may 
explain 
how 
it 
interprets 
an 
existing 
regulation 
or
 statute, 
how 
a 
rule
may 
apply 
in 
a 
given 
instance, 
and
 what 
things 
a
 person 
or 
corporation
 must
 do 
to 
comply.

 There 
is 
a
key 
distinction 
between 
an 
interpretive 
rule 
and 
a 
final 
“legislative” 
or 
“substantive”
 rule. The
interpretive 
rule 
or 
policy 
statement 
must 
not 
set 
new
 legal 
standards 
or 
impose 
new
 requirements.

Guidance
 documents 
do 
not 
contain 
amendments 
to 
the
 CFR 
and 
are 
not
 subject 
to 
the 
notice and comment 
process. 


But 
in 
some 
cases, 
agencies
 choose 
to 
request
 comments 
on 
interpretive  
rules
and 
other 
guidance 
documents 
to 
improve 
the 
quality 
and
 clarity 
of 
the 
material. 


Interpretive 
rules
and 
policy 
statements 
that 
have 
broad
 applicability
 are 
often 
published
 in 
the 
Federal 
Register, 
but
some
 may 
only 
appear 
on 
agency 
websites.

"

[njhorseman]

4 hours ago, njkate said:

And now it has come back to bite right in the ass

Just as the cruise lines' business model of incorporating in foreign countries and registering their ships under foreign flags of convenience in order to avoid paying federal income taxes on their profits and avoid US wage and labor laws came back to bite them by making them ineligible for federal pandemic aid . If the industry wants to know why they don't get a lot of support in Washington they just have to look in the mirror.

 

While I have compassion for everyone in the industry and associated businesses who lost their jobs or may lose them in the future, as far as the cruise lines themselves are concerned, they've made their bed and now are forced to lie in it. 

[mianmike]

4 minutes ago, chengkp75 said:

As njhorseman correctly states, it was NCL's original request to ban technical stops in Mexico, that led the MARAD (the US Maritime Administration) to question CBP about enforcement of the PVSA, and it was CBP alone (or perhaps with MARAD's assistance) that came up with the time limits on ports, etc, not NCL.  When CBP posted their proposed rule change, even NCL saw that it would preclude any Alaskan cruises, and requested that CBP scale back to the original request, simply that technical stops were not allowed.

You will note that CBP made this an "interpretive rule", which does not need to be "finalized" according to the Federal Register's website:

 

"Interpretive
 rules, 
policy 
statements,
 and
 other
 guidance
 documents
 may
 be
 issued 
any time
 after
 a
final 
rule
 is 
published 
to 
help 
the 
public 
understand
 to 
how 
a 
regulation 
applies 
to 
them
 and 
affects
their 
interests.


 An 
agency
 may 
explain 
how 
it 
interprets 
an 
existing 
regulation 
or
 statute, 
how 
a 
rule
may 
apply 
in 
a 
given 
instance, 
and
 what 
things 
a
 person 
or 
corporation
 must
 do 
to 
comply.

 There 
is 
a
key 
distinction 
between 
an 
interpretive 
rule 
and 
a 
final 
“legislative” 
or 
“substantive”
 rule. The
interpretive 
rule 
or 
policy 
statement 
must 
not 
set 
new
 legal 
standards 
or 
impose 
new
 requirements.

Guidance
 documents 
do 
not 
contain 
amendments 
to 
the
 CFR 
and 
are 
not
 subject 
to 
the 
notice and comment 
process. 


But 
in 
some 
cases, 
agencies
 choose 
to 
request
 comments 
on 
interpretive  
rules
and 
other 
guidance 
documents 
to 
improve 
the 
quality 
and
 clarity 
of 
the 
material. 


Interpretive 
rules
and 
policy 
statements 
that 
have 
broad
 applicability
 are 
often 
published
 in 
the 
Federal 
Register, 
but
some
 may 
only 
appear 
on 
agency 
websites.

"

 

As usual you provide much appreciated clarity Chief.  The problem I have is as you posted above: "The
 interpretive 
rule 
or 
policy 
statement 
must 
not 
set 
new
 legal 
standards 
or 
impose 
new
 requirements.

  Guidance
 documents 
do 
not 
contain 
amendments 
to 
the
 CFR 
and 
are 
not
 subject 
to 
the 
notice and comment 
process."  Thus, given there is no hard regulation against technical stops, only interpretation by CBP that technical stops are prohibited I wonder if CLIA and cruise line attorneys feel CBP is on shaky legal ground and they could challenge the interpretation and possibly win.  As someone who spent 37 years enforcing U.S.C. and C.F.R.'s I know federal agencies have very little to no latitude in unilaterally broadening the scope of a regulation.  For clarification we look to the Federal Register or the verbiage in the original Congressional bill which enacted a law.  I'm having a hard time finding anything definitive.  I'll keep looking, I'm too deep down the rabbit hole to stop now.      

 

[chengkp75]

Well, 46 CFR 42.05-45 states that an "international voyage" is defined by Article 2(4) of the International Convention on Load Lines, 1966:

 

(4) " International voyage " means a sea voyage from a country to which the present Convention applies to a port outside such country, or conversely. For this purpose, every territory for the international relations of which a Contracting Government is responsible or for which the United Nations are the administering authority is regarded as a separate country.

 

So, the CBP ruling is merely "interpreting" what "to a port outside such country" means.  CBP chose to interpret the definition as not allowing "technical port calls", because while they meet the "letter" of the law, they do not meet the "intent" of the law, and anyone who knows the PVSA and why it was enacted (the real reason) and what it actually does, would have no argument with what the "intent" of the PVSA is.

 

This ruling has been around since 2007, forcing actual stops in Ensenada for Hawaii cruises, and CLIA has not felt it worth the time and effort to try to get it changed back.  As noted, CBP could just as easily  adopt the 48 hours in a port and majority of port time in foreign ports interpretation that they wanted back in 2007.

[coastcat]

1 hour ago, mianmike said:

 

Yes, that Federal Register proposal has been posted before.  It obviously was never codified.  Given no one can seem to find a published regulation prohibiting technical stops, I can't help but wonder if that Federal Register proposal has confused people into thinking there is a regulation.  I'll keep looking for proof of life for this illusive mystical technical stop regulation.  I'll also keep waiting/looking for a U.S. Customs' press release giving clarification regarding the Congressional member's efforts to  persuade Canada to allow technical stops.  If there is a regulation prohibiting technical stops I would expect U.S. Customs to chime in soon and tamp down any false hope over the possibility of technical stops.   Hopefully we'll have clarification soon. 

I haven't been able to find anything beyond the proposal and responses from interested parties. And yet it seems like the industry has been following this non-existent regulation? I can't imagine that the competing cruise lines would oblige NCL's request without an official ruling. Well, we'll see how CBP responds. I'm still not sure how Rep. Young's proposed exemption is even feasible - IIRC, PVSA exemptions are only to be considered in the support of national security

 

Mind you, I'd love it if we could have Alaska cruises this year. Seattle is my home port and I'm ready to hop onboard ASAP.

[mianmike]

2 hours ago, chengkp75 said:

Well, 46 CFR 42.05-45 states that an "international voyage" is defined by Article 2(4) of the International Convention on Load Lines, 1966:

 

(4) " International voyage " means a sea voyage from a country to which the present Convention applies to a port outside such country, or conversely. For this purpose, every territory for the international relations of which a Contracting Government is responsible or for which the United Nations are the administering authority is regarded as a separate country.

 

So, the CBP ruling is merely "interpreting" what "to a port outside such country" means.  CBP chose to interpret the definition as not allowing "technical port calls", because while they meet the "letter" of the law, they do not meet the "intent" of the law, and anyone who knows the PVSA and why it was enacted (the real reason) and what it actually does, would have no argument with what the "intent" of the PVSA is.

 

This ruling has been around since 2007, forcing actual stops in Ensenada for Hawaii cruises, and CLIA has not felt it worth the time and effort to try to get it changed back.  As noted, CBP could just as easily  adopt the 48 hours in a port and majority of port time in foreign ports interpretation that they wanted back in 2007.

 

Given what you are saying, the intent of the PVSA seems to be the way CBP has legal leg to stand on.  

 

The enforcement of an subjective interpretive rule rather than a substantive or Final Rule would be unworkable for me though.  Given the current pandemic situation, in the future CBP could remove ambiguity and propose a regulation and open to public comment to disallow technical stops.   A published Final Rule would be a much needed update and I'm sure the cruise lines would appreciate the clarity.  Although I'm sure cruise lines will adhere to interpretive rules as they don't want to bite the hand that regulates them. 

[Named-Tawny]

It's so strange to me that the US is lobbying Canada to change our rules when the US could just... change its rules.

[RD64]

Named-Tawny that is the most sensible post I have seen in weeks! Your fellow Canadian salutes you!!!

[ilovetotravel1977]

But Canada also doesn't want ships in their waters. Even if the US didn't have the PSVA, how would they pass through?

[All-ready2cruise]

NM, there will always be a reason.  US VS Canada... who will win the battle? 

Canada has a reason but US has the law. 

Edited February 28, 2021 by All-ready2cruise

[chengkp75]

8 hours ago, ilovetotravel1977 said:

But Canada also doesn't want ships in their waters. Even if the US didn't have the PSVA, how would they pass through?

The actual order signed by the Minister of Transport is somewhat different from the press release.  It recognizes the concept of "innocent passage", which is from a maritime concept codified in the International Convention on Load Lines, to which Canada is a signatory, and signatory nations must pass "enabling legislation" codifying the  language of the Convention into law in that country.  "Innocent passage" is the ability of any ship, of any nation to "transit" the "territorial" waters (the ocean's coastal waters, not "inland" waters) of any nation, provided they do not engage in any "non-innocent" activities.  "Non-innocent" activities include: stopping for any reason (except force majeure (a situation outside the ship's control like an emergency)), anchoring, docking, fishing, etc, etc.  So, a cruise ship leaving from Seattle is still, even with the MOT ban, allowed to pass through Canadian waters, provided she does not stop, and is merely using Canadian waters to get from point A to point B.

[roger001]

And as the virus situation continues to unfold, if it is a very positive direction, Canada may very well look at the situation again and adjust their decisions accordingly.  The virus is a continually changing issue.  

[mianmike]

Still unanswered for me: Does any current U.S. law or regulation specifically prohibit a technical stop in Canada?  I still cannot find any evidence of this reported reg. and I’m beginning to wonder if it exists given the Federal Register is web searchable.  I suppose I could be using search terms different than were used in the rule.  If there is a regulation hopefully someone can provide a link.  Any federal regulation that carries a penalty must be published in the Federal Register. 

 

In 2007 U.S. Customs proposed in the Federal Register to amend the PVSA regulations to include a requirement that: “The passengers are permitted to go ashore temporarily at the foreign port.“  CBP said in their proposal that the regs were needed because: “Currently, these regulations do not contain specific criteria for non-coastwise-qualified vessels on itineraries including U.S. ports and either ‘‘nearby’’ or ‘‘distant’’ foreign ports in order for such foreign port calls to be compliant with the PVSA.”   This proposal was never codified into a final rule.  In 2008 the Office of Management and Budget rejected CBP's proposal.  https://www.reginfo.gov/public/return/DHS-CBP_Coastwise_Cruises_Return_Letter.pdf

 

CBP’s terminology is of interest and curiously they have been known to refer stopping at a nearby foreign port as “touching nearby foreign ports.”   Agencies choose their words very carefully when publishing a Final Rule in the Federal Register so the use of “touching nearby foreign ports” is interesting and possibly telling?

 

Excerpt from 1985 Final Rule in the Federal Register:

We do not believe that permitting foreign-flag foreign-built vessels on voyages touching nearby foreign ports to allow passengers who embarked at U.S. ports to go ashore temporarily at other U.S. ports will jeopardize any U.S.-flag U.S.-built vessels that will be built in the future.  First, we believe that a prohibition on such activity by foreign vessels would simply result in either the foreign vessels offering fly and sail packages so that American passengers would embark on foreign vessels in foreign ports or the foreign vessels dropping U.S. ports from their itineraries. The net result would be a great loss for American business at U.S. ports where American passengers now embark on foreign vessels or visit temporarily while a foreign vessel is in port. Second, we believe that if at some future date it was actually shown that U.S.-flag U.S.-built vessels were hurt by the amendment and Customs did not take remedial steps, the Congress would quickly take appropriate action.  https://www.govinfo.gov/content/pkg/FR-1985-07-01/pdf/FR-1985-07-01.pdf

 

The above reads to me that Customs realized there is no prohibition against a technical stop and they tried to add it but O.M.B shot it down. 

[julig22]

On 2/26/2021 at 8:05 PM, Named-Tawny said:

It's so strange to me that the US is lobbying Canada to change our rules when the US could just... change its rules.

I don't think it's a matter of one over the other.  It's a matter of what, if anything can be done to allow US based cruises. It never hurts to have multiple pathways to reach a desired goal.

[chengkp75]

9 hours ago, mianmike said:

Still unanswered for me: Does any current U.S. law or regulation specifically prohibit a technical stop in Canada?

While I admire your dogged research, I will go with the definition of an "interpretive" ruling that I posted earlier, and which states that these rulings do not need to be published in the Federal Register, and may only be available from the agency involved.  I would suggest you contact CBP to find your answer.

 

I will also point out that the cruise lines are abiding by the ruling for the Hawaii cruises for the last 13 years, and you would think their lawyers would have found out whether they needed to or not.

[d9704011]

7 hours ago, julig22 said:

I don't think it's a matter of one over the other.  It's a matter of what, if anything can be done to allow US based cruises. It never hurts to have multiple pathways to reach a desired goal.

OK.  Maybe it should be the cruise line operators doing the work instead of US legislators trying to convince a foreign, sovereign country to change its rules so people can take (currently illegal due to a long-existing US law) cruises out of the US to other parts of the US.

[farmersfight]

9 hours ago, julig22 said:

I don't think it's a matter of one over the other.  It's a matter of what, if anything can be done to allow US based cruises. It never hurts to have multiple pathways to reach a desired goal.

 

1 hour ago, d9704011 said:

OK.  Maybe it should be the cruise line operators doing the work instead of US legislators trying to convince a foreign, sovereign country to change its rules so people can take (currently illegal due to a long-existing US law) cruises out of the US to other parts of the US.

 

I think the snag is that the PVSA requirements can only be waived for national security. The PVSA could be amended to remove the requirement that any waivers must be for national security. A world-wide pandemic is imo, a justification for this amendment.

 

Then, the PVSA requirement that foreign flag cruise ship call at a nearby foreign port (i.e. Victoria, BC) on a closed loop cruise (i.e. Alaska R/T cruise out of Seattle) could be temporarily waived until Canada opens up their ports to cruise ships again.