Long Waits, Big Fines

San Diegans who cross into Mexico by car are used to waiting an hour and a half to clear customs when coming north But local fishermen, whale watchers, and sailboaters who have traveled by boat into Mexican waters have never been delayed upon entering our bays. That may soon change.

In January, Bryan Ballew, a 49-year-old resident of Lake Arrowhead who berths his 29-foot sportfisher in a Shelter Island marina, had just returned from an afternoon of whale watching and was tied up at the Harbor Police dock at the south end of Shelter Island when he was approached by a customs agent. "He told me, 'If you've been to Mexican waters, it's mandatory that you report to customs when you return,' " Ballew said.

It was the first time in six months of boating in and out of San Diego Bay that Ballew had heard of reporting to customs. Boaters who have sailed to and from Mexican waters for decades never heard of a requirement to report until a year ago, when word spread through the San Diego nautical community. "I've been fishing in San Diego waters for 35 years," said Pete Gray, co-host of the Let's Talk Hookup fishing show on XTRA Sports 690, "and the only time I have reported to customs is when I've made landfall in Ensenada or other ports. The understanding that [the fishing community] had was that you don't need to check in if you don't make landfall."

But in the last 12 months, anglers have called Gray's radio show with rumors of mandatory customs inspections. "And recently," Gray said, "some friends of mine were pulled in..."

After Ballew was told by a customs agent about the mandatory inspection, he went to the Internet and started what he estimates as more than 120 hours of research. After hitting a link titled "Bay Services" on the Harbor Police's Web page, Ballew found information that supported the customs agent's claim. Under the headline "San Diego Bay Customs Clearance Information," the passage stated, "Vessels entering San Diego Bay as their first point of call from an international voyage must submit to a Customs clearance inspection. All commercial vessels and recreational vessels greater than 100 feet must clear Customs at the west end 'B' Street Pier, San Diego. Recreational vessels less than 100 feet in length may clear Customs at the Shelter Island Harbor Police Dock. This dock is located at the south end of Shelter Island and is posted 'Pleasure Craft Clearance.' The dock is shared by the Harbor Police fleet."

However, no federal regulation or customs policy is cited on the Web link. So Ballew pressed on with his research until he found title 19, section 4.94 of the Code of Federal Regulations, which states, "Any documented vessel with a pleasure license endorsement...shall not transport merchandise nor carry passengers for pay. Such a vessel...may proceed from port to port in the U.S. or to foreign ports without clearing and is not subject to entry upon its arrival in...the U.S., provided it has not visited a hovering vessel...or received merchandise while on the high seas."

"I'm no lawyer," Ballew commented, "but that's pretty clear English. If you haven't visited a hovering vessel -- which means touching another vessel at sea -- or received any merchandise while at sea, you don't have to report for inspection."

Local customs officials disagree with Ballew's assessment. Vincent Bond, U.S. Customs public affairs agent, when presented with the two passages, said that the Harbor Police Web page information was "probably a paraphrasing of customs regulations" but not completely accurate. "The word that stuck out to us," Bond explained, "was international. International has a connotation that you're coming from the high seas. If you're coming from the high seas, such as from Hawaii to San Diego, you've been in international waters. But Hawaii is a state of the United States so you don't need to report upon arrival in San Diego. What we're trying to do is make a distinction between international waters and the territorial waters of Mexico."

Replace "international voyage" with "voyage into foreign territorial waters," and the passage from the Harbor Police Bay Services Web page is correct, Bond says, despite the apparent contradiction in 19CFR4.94. Ballew's interpretation of the latter passage, Bond says, "gets the words inspection, report, and entry all mixed up."

"They're not interchangeable," said a customs agent, "Agent Jones," who asked not to be named. "Entry has to do with making a formal marine entry."

Going on board a boat that has tied up at the police dock and looking in fish tanks and compartments is not considered entry, Agent Jones explained. As for the requirement to report, he pointed to a section of the United States Codes. Titled "Report of arrival of vessels, vehicles, and aircraft," the section states that a vessel must report "immediately upon arrival at any port or place within the United States...from a foreign port or place."

In the case of San Diego fishermen and pleasure boaters, that foreign place is the territorial waters of Mexico, which stretch from the Mexican coast 12 miles out to sea and from the Coronado Islands 12 miles west. If you've sailed into these waters, says Bond, "You've left the United States. You can say, 'We didn't stop at a port or set anchor or anything like that.' But you still went into a foreign place under 19USC1433."

According to Bond, the protocol for reporting after visiting Mexican waters is under review by customs. "But right now," Agent Jones said, "a vessel [that has been in Mexican waters] comes into the harbor and it goes to the San Diego Harbor Police dock as stated in the Harbor Police Bay Services section. The only person allowed on or off the vessel is the master. He makes contact with the [Harbor Police] mooring office. The mooring office will contact us, and we will dispatch an inspector. Everybody else must remain on the vessel until the inspector arrives and the vessel has been cleared. And say there's somebody in the parking lot expecting the vessel in; they cannot go down and get on the vessel until it is cleared."

On Sunday, March 18, Bryan Ballew went fishing at the Coronado Islands, where he saw "over 100 boats" fishing. "When I returned to port in the late afternoon," he said, "I did in fact report to the area designated because I want to be in compliance with the law. When I got to Shelter Island, I made an attempt to contact customs by phone, but the telephone number I had was not functional. So I walked to the San Diego Harbor Police Mooring Offices, and the clerk told me she would page the agent on duty. I returned to my boat and waited nearly one hour before the agent arrived."

After a brief inspection of the boat, the agent informed Ballew he had to pay a one-time $25 fee for an annual inspection decal. Ballew paid the fee, though he later found out that his boat is exempt because it is under 30 feet.

Local boaters are worried about the time it will take to clear customs upon returning to port. "I've had guys tell me they had to wait two, three hours for the customs guys to come to the dock," Pete Gray said.

But boaters also worry that, even if multiple agents were stationed on the dock full-time for the sole purpose of clearing boats, at certain times there could be a line of boats stretching from Shelter Island out into the shipping channel and past the harbor mouth, fighting the moving tide to hold their place in queue and disrupting navigation. "There's only about 60 feet of dock there when the police boats are tied up," Gray said. On a Saturday during the summer albacore season, he estimates that 200 to 300 boats depart from San Diego to the Coronado Islands and offshore banks, "and 98 percent of them travel into Mexican waters because that's where the hottest spots are. Think of all of them lining up in the afternoon to report. It would be a four-hour wait or something like that."

Bond says customs is aware of the potential for long waits, yet he and Agent Jones offer no alternatives to the problem. Bond would only reiterate, "Right now we're in the process of going through and finalizing and revising our policy on reporting requirements." The fine for not reporting is $5000 for a first-time violation and $10,000 for each subsequent violation. "Also," Bond said, "the conveyance used in connection with any such violation is subject to seizure and forfeiture," in other words, the boat can be confiscated.

To those who think, This requirement has been on the books for years and never been enforced so I'm not going to start now, Agent Jones says, "It will be enforced, sir."

It's not only San Diego Bay-based boats that must clear customs. The requirement to report also applies to boats out of Mission Bay and Oceanside Harbor. But because those harbors lack a facility for inspection, vessels that have departed from those locations and traveled through Mexican waters must also report to the Harbor Police dock in San Diego Bay before returning to their home ports.

The boating community has had a mixed response to the customs-clearance requirement, which they say is new to them, though Bond contests it has always been there. Gray says, "I know some guys who say, 'I'm going to stop. I don't want a $5000 fine.' But most everybody I know is saying, 'I'm not going to do anything about it until they make me.' I feel the same way. I'm not stopping until they say, 'Hey, you've got to stop.' I think it's a ridiculous law."

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