Nov. 4, 2005 — Homeland Security regulations, enforced by US Customs and Border Protection, are unintentionally, but undeniably, wreaking havoc with the territory's charter boat industry.
And more than 100 people turned out Thursday night to hash out a plan to mitigate the damage done by the newly implemented regulation that requires any boating companies that take money for carrying passengers to submit passenger and crew information to a Customs Web site. The Advanced Passenger Information System, as the process is known, was "Established for commercial airline and vessel operators, APIS enhances border security by providing officers with pre-arrival and departure manifest data on all passengers and crew members," the CBP Web site says.
Because of successful lobbying on the part of the ferry boat industry in the northeastern and northwestern U.S. ferry boats are at least for now — exempt from the requirement.
The regulations were established primarily to monitor larger commercial vessels operating between foreign ports.
But the V.I. got caught in the bureaucratic mire of the regulations. William P. Westman, chief of Seaport Operations for Customs in the V.I., was clear Thursday night that the regulations were not directed at the territory. He was also clear that it is his job to enforce the regulation whether he likes it or not.
"Until something changes you guys have to comply and I have to enforce it."
The V.I., because of its unique proximity to the British Virgin Islands, is the only jurisdiction in the U.S. where small day trip operators are faced with the task of meeting these regulations.
The rules were phased in over a period of four years. They were made part of the Homeland Security Act, implemented in the weeks following the 9/11 attacks on Washington and New York City. The larger vessels, including cruise ships, were the first to face the changes. The rules affecting the smaller vessels went into effect Oct. 4 of this year. Those who don't comply with the regulations face significant fines–$5,000 for the first offense, and $10,000 for each subsequent violation.
The regulations do not, however, apply to bare boats unless a captain is hired.
Westman said the V.I. small boating businesses were far more impacted than anyone else. "You don't have an IT department with 1,000 clerks who can input the data for you," he said.
Lynn Dohm, owner of Dohm Water Taxi said it took her and another person one hour and 45 minutes to input six people into the Web site. "We're not an Internet kind of business," Dohm said. "As a small business I would have to set up a whole new office," and even after that, she said, "I don't even know if there would be enough hours in the day to comply."
Dohm said she has had to turn away a substantial amount of last minute business because she couldn't keep up with the new regulation. Dohm ferries private clients to and from destinations in the U.S. and British Virgin Island.
Last month, Delegate Donna M. Christensen applied for a waiver to exempt the V.I. from the rules, but was told by Assistant Homeland Security Secretary Pamela J. Turner that once implemented, federal laws cannot be waived. Instead, Turner said Homeland Security would be pushing for a formalized amendment reducing transmittal time to 60 minutes prior to departure.
However, Westman said that 60 minute filing was part of the original regulation. He explained how it works: If you have a voyage that is more than 96 hours, the filing has to be done 96 hours before departure; if the trip is less than 96 hours the filing must be done 24 hours in advance of departure and arrival. If the round trip is less than 24 hours the filing is done 60 minutes before departure and arrival. Westman said he has and is using the "prosecutorial discretion" to waive the 60 minute rule, making the filing requirement 15 minutes prior to departure.
Either way, serious objections to the regulation are being voiced by members of the territory's charter yacht industry, who say it is unduly cumbersome to make the filing when carrying passengers on quick trips from the territory to the BVI and back.
They also pointed out and Westman acknowledged the unique problems with dealing with an Internet form that face local business owners like phone lines that don't work, power that goes off regularly, and no widely available or affordable high speed Internet access.
Furthermore, stakeholders said, business is lost because, the Customs Web site is not user friendly; and most boats are not equipped with the technology to submit the forms. One of the solutions discussed Thursday was to push for an amendment exempting day charter boats from the regulations. It was repeatedly pointed out that charter boaters leave from and return to the U.S. with the same passengers, making the regulation unnecessary where the day trippers are concerned.
Tour operator Judy Reeve, said a terrorist would be unlikely to make a day sail trip "Instead they might rent a boat, or take a bare boat charter, where the rules don't apply," she said.
Christiansen, residents said, recently sent down a petition to the local boating industry calling for the amendment. Once all signatures are collected, Christensen will be re-submitting the proposal to Homeland Security.
Attorney Adriane Dudley, a member of the St. Thomas-St. John Chamber of Commerce Board which sponsored the meeting along with the V.I. Hotel and Tourism Association, said stakeholders should also engage the V.I. government's Washington lobbyists Winston and Strawn, in the battle.
Sen. Lorraine Berry said she was going to draft and introduce a resolution at the next full Senate session decrying the regulations and suggesting legislation to change the rule for the V.I.
However, Westman said after the meeting it is unlikely that the Homeland Security regulations will be changed. . Westman said during the meeting that while boaters' concerns are valid, the regulations were implement after the 9/11 attacks to prevent terrorists from coming into the U.S. by boat or airplane.
Kenny Klein, Captain of the Lady Lindsay at the Ritz Carlton Hotel, said day sail boat operators have their eyes on passengers at all times. "In most cases, the passengers are U.S. residents who just take the quick trip to the BVI and back," he said. "We see them when they're picked up, when they're taken out, and when we bring them back." Westman agreed, stating that passengers aboard the day sail boats are low-risk individuals.
Keeping that in mind, Westman said, Customs will use a little "common sense" when enforcing the regulations. "If a boater has been working on submitting the passenger lists for two hours, and the power shuts off, we're not going to penalize them for that," he said.
However, Westman said if stakeholders wished to continue in their efforts to change the regulations, they should contact their public officialssuch as Berry, and Tourism Commissioner Pamela Richards, both of whom spoke at Thursday's meeting.
Richards said there are a few things which boaters could do locally in order to make things easier, or gain support for their case. Tourism, for example, could supply software to the V.I. Charteryacht League which allows boaters to more easily complete the forms. This software costs about $200.
Richards added boaters could also form an alliance with the ferry boat industry. However, while ferry boats currently have an exemption from the regulations, Westman said it is only a matter of time before their exemption is rescinded.
Richards further said Tourism can launch an ad campaign to prevent charter boats companies from taking their business to the BVI, which has no such regulations. Richards said she heard BVI businesses have been trying to persuade USVI charter boat companies to come there — a practice which Richards said she will try to deal with imm
ediately, but a practice long in existence. The BVI has successfully lured much of what was formerly the U.S.V.I. boating industry to its shores.
Klein added boaters could emulate efforts made in the BVI, where airlines and boating companies worked with Customs to consolidate all information forms into one single form. "That will definitely make everything a lot easier," Klein said.
The group decided Thursday to take two tacks first, get as many people as possible to sign a petition and second, to work on legislation to exempt the V.I. from the regulations that would eventually be submitted to the U.S. Congress.
"That's the way to do it," Judi Nagelberg, one of the meeting's organizers, said. "We're all in this togetherand it's going to be hard to get people to visit us if we don't get these rules relaxed. It's up to us to change our destiny."
Editor's note: Here is the petition for anyone who wishes to print it and obtain signatures. Completed petitions can be dropped off at the V.I. Hotel and Tourism Association office at Al Cohen's Mall on Raphune Hill, the St. Thomas-St. John Chamber of Commerce office on Main Street, or at the V.I. Charter League office in Crown Bay Marina.
The petitions can be mailed to VICL, 3801 Crown Bay, Suite 203, St. Thomas, VI 00802.
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