1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

BIMINI SUPERFAST OPERATIONS LLC, et 

al, 

Plaintiffs, 

v. 

THOMAS WINKOWSKI, Acting 

Commissioner of U.S. Customs and Border 

Protection, et al 

Defendants. 

Civil Action No. 13-1885 (CKK) 

MEMORANDUM OPINION 

(January 10, 2014) 

Plaintiffs Bimini Superfast Operations LLC, Bimini Superfast Limited, and Bimini 

Superfast Charter Limited (“Plaintiffs”) have filed suit against Defendant Thomas Winkowski in 

his official capacity as Acting Commissioner of the United States Customs and Border 

Protection agency and U.S. Customs and Border Protection (“Defendants” or “CBP”), 

challenging under the Administrative Procedures Act (“APA”) CBP’s November 2013 decision 

prohibiting Plaintiffs from operating their evening “cruise to nowhere” with crewmembers who 

hold a D-1 nonimmigrant visa. Presently before the Court is Plaintiffs’ [13] Motion for a 

Preliminary Injunction and Defendants’ [18] Motion to Dismiss or, in the alternative, for 

Summary Judgment. Upon consideration of the pleadings1

, the relevant legal authorities, and the 

                                                             1

 Pl.’s Mot. for Prelim. Inj., ECF No. [13]; Def.’s Opp’n. to Pl.’s Mot. for Prelim. Inj. and 

Def.’s Mot. to Dismiss or for Summ. J., ECF No. [18] (“Def.’s Mot.”); Def.’s Stmt. of Material 

Facts Not in Dispute, ECF No. [18-4] (“Def.’s Stmt.”); Pl.’s Reply to Opp’n to Mot. for Prelim. 

Inj. and Pl.’s Opp’n to Def.’s Mot. to Dismiss, ECF No. [20] (“Pl.’s Opp’n.”); Def.’s.Reply to 

Opp’n to Mot. to Dismiss or for Summ. J., ECF No. [25] (Def.’s Reply); Def.’s Supp. Response 
2

record as a whole, the Court finds that CBP’s November 2013 determination was a final agency 

action, but not an action that violated notice and comment rulemaking procedures under the APA 

nor an agency action that was arbitrary, capricious, or contrary to the law. Accordingly, 

Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment is DENIED on the 

basis that CBP’s November 2013 determination was a final agency action, but GRANTED in 

that, on the merits, the November 2013 determination did not violate APA notice and comment 

procedures nor was it arbitrary, capricious, or contrary to the law. In light of this decision on the 

merits, Plaintiffs’ Motion for a Preliminary Injunction is DENIED AS MOOT. The Court shall 

not address Plaintiffs’ Motion for Preliminary Injunction in its Memorandum Opinion, but only 

the Defendants’ Motion to Dismiss or, in the alternative, for Summary Judgment. 

I. BACKGROUND 

As a preliminary matter, the Court notes that it shall cite to Defendants’ Statement of 

Material Facts not in Dispute, ECF No. [18-4], as these facts were conceded by Plaintiffs.2

 

Although Plaintiffs included a footnote in their Opposition to Defendants’ Motion to Dismiss or, 

in the alternative, for Summary Judgment stating that these facts “are very much in dispute,” see 

Pl.’s Opp’n, at 5 n. 9, this gesture is insufficient to actually dispute the facts. Plaintiffs were 

required to respond to Defendants’ Statement of Material Facts not in Genuine Dispute as set 

forth in the rules of the U.S. District Court for the District of Columbia. Plaintiffs did not do so. 

See LCvR 7(h)(1) & (2) (“An opposition to such a motion [for summary judgment] shall be 

accompanied by a separate concise statement of genuine issues setting forth all material facts as 

                                                                                                                                                                                               

to Order of Court, ECF No. [26]; Pl.’s Supp. Response to Order of Court, ECF No. [27]; 

Administrative Record, ECF No. [29]. 

2

 When a document is part of the administrative record, ECF No. [29], the Court will also 

cite to the administrative record (“AR”). 
3

to which it is contended there exists a genuine issue necessary to be litigated, which shall include 

references to the parts of the record relied on to support the statement.”). In any event, the facts 

presented in Defendants’ Statement of Material Facts not in Dispute and relied upon by the Court 

are either not actually disputed by Plaintiffs or are supported by exhibits provided by both parties 

along with their pleadings. 

A. Factual Background 

In 2013, Plaintiffs began a high-speed cruise business using a vessel called “Resorts 

World Bimini Superfast” that operated out of the Port of Miami. See Def.’s Stmt. ¶ 1. Between 

July 20, 2013, and September 15, 2013, Plaintiffs operated two daily cruises between Miami and 

Bimini where passengers would disembark at the foreign port of Bimini in the Bahamas. Id. ¶ 3, 

6. On August 23, 2013, a representative of Plaintiffs emailed CBP asking whether it could 

“confirm (in writing if possible) that if we [Plaintiffs] go for the closed loop cruise to Bimini, 

without any movement of passengers off or on the ship, an ID will be enough for CBP and they 

will not process the passengers?” Id. ¶ 8; AR 31. CBP responded that this itinerary was a 

“cruise to nowhere,” meaning a cruise that departs a U.S. port of entry, enters international 

waters without touching a foreign place, and returns to the same U.S. port of entry with no 

passengers or crew boarding or departing the vessel, and that this type of cruise would not 

require CBP processing of passengers. Id. ¶ 9; AR 30-31. Subsequently, on or around 

September 21, 2013, Plaintiffs began operating “cruises to nowhere” that departed Miami in the 

evening, sailed out into international waters, and returned to the port of Miami in the early 

morning hours. Id. ¶ 10. Plaintiffs used the same crewmembers to operate the day cruises to 

Bimini and the evening “cruises to nowhere.” Compl. ¶ 70. 

On October 23, 2013, Plaintiffs approached the Port Everglades Seaport in Ft. 

Lauderdale, Florida to inquire about beginning a “cruise to nowhere” that would begin and end at 
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that port. Def.’s Stmt. ¶ 11. Plaintiffs subsequently informed CBP that they sought to operate a 

“cruise to nowhere” out of Fort Lauderdale and had been operating the Miami cruise with 

crewmembers holding D-1 visas. Id. ¶ 12. Shortly thereafter, CBP officials requested a meeting 

to explain to Plaintiffs that if they wished to continue operating “cruises to nowhere,” they must 

employ persons legally authorized to work in the United States since such cruises did not touch a 

foreign port making the voyage entirely domestic and rendering it ineligible to be crewed by 

individuals with D-1 visas. Id. ¶ 13. CBP officials met with Plaintiffs on October 28, 2013, and 

communicated this information to Plaintiffs in person. Id. ¶ 14. 

B. Procedural History 

On October 30, Bill Olejasz, CBP Port Director of the Port of Miami, sent Plaintiffs a 

letter indicating that the crewmembers on Plaintiffs’ evening “cruise to nowhere” who possessed 

D-1 visas were not in compliance with Immigration and Nationality Act (“INA”) Section 

101(a)(15)(D)(i), which defines a nonimmigrant alien as: 

An alien crewman serving in good faith as such in a capacity required for normal 

operation and service on board a vessel . . . who intends to land temporarily and 

solely in the pursuit of his calling as a crewman and to depart from the United 

States with the vessel or aircraft on which he arrived or some other vessel or 

aircraft. 

Compl., Ex. B; AR 13-14 (October 30, 2013 CBP letter) (emphasis added). The October 2013 

letter explained that crewmembers on Plaintiffs’ “cruise to nowhere” fail to satisfy the 

“departure” element of INA § 101(a)(15)(D)(i) because, pursuant to a 1955 Board of 

Immigration Appeals (“BIA”) opinion, “one does not depart the United States until one has been 

admitted into a foreign country or enters foreign territory without inspection.” Id. As the 

crewmembers on the evening excursions “will not depart the United States and do not land 

temporarily and solely in pursuit of their calling as a crewmen [sic],” the crewmembers were not 

in compliance with the D-1 visa requirements. Id. The letter noted that “the CBP has 
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consistently determined that crewmembers who possess D-1 visas are not eligible to work aboard 

vessels operating as a cruise to nowhere.” Id. The letter concluded that “in order to operate a 

cruise to nowhere, the alien crewmembers must be replaced with U.S. citizens and/or lawful 

permanent residents in order to continue to operate lawfully.” Id. The CBP granted Plaintiffs a 

“grace period” until November 3, 2012, “to comply with these requirements” and indicated the 

contact information of the Miami Director of Field Operations, Vernon Foret, in the event 

Plaintiffs “wish[ed] to appeal this decision.” Id. 

 On November 4, 2013, Plaintiffs sent a letter of appeal to Mr. Foret, which included five 

pages of legal argument as to why Plaintiffs’ “cruise to nowhere” was operating in compliance 

with United States law. See Compl. Ex. C; AR 15-19 (November 4, 2013 Plaintiffs’ Appeal 

Letter). Plaintiffs essentially made two arguments. First, Plaintiffs argued that CBP agency 

decisions have long held that “cruises to nowhere” are not coastwise trade subject to coastwise 

laws and thus do not “trigger any U.S. citizen crewing requirement.” Id. at 3; AR 17. Second, 

Plaintiffs argued that the D-1 crewmembers are in compliance with the requirements of the INA 

because the crewmembers “do intend and in fact depart daily [on the cruise to Bimini], enter a 

foreign port, and enter the U.S. temporarily and solely for the purpose of performing their duties 

on board the vessel.” Id. at 4-5; AR 18-19. 

Miami Director of Field Operations Vernon Foret denied Plaintiffs’ appeal in a letter 

dated November 7, 2013 (“November 2013 determination”). See Compl. Ex. E; AR 22-23 

(November 7, 2013 CBP Letter). In his letter, Mr. Foret explained that Plaintiffs’ evening 

“cruise to nowhere” is a “separate, revenue-generating cruise, with its own manifest of paying 

passengers. . . . It is a distinct voyage of a type that consistently has been denied permission to 

operate in the Miami Field Office area of responsibility without United States Citizen (USC) or 
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Lawful Permanent Resident (LPR) crewmen.” Id. at 1; AR 22. Mr. Foret conceded that “cruises 

to nowhere” are not considered coastwise trade and that, therefore, requirements imposed by the 

coastwise laws [which include certain immigration requirements] are not applicable. Id. 

However, Mr. Foret stated that “immigration laws are indeed relevant and applicable to cruises 

to nowhere.” Id. Mr. Foret noted that while Plaintiffs’ “D-1 crewmen depart the United States 

foreign each day on the international cruise and are in compliance to operate as crewmen 

involved in international cruises to and from the Bahamas . . . the D-1 crewman visa status does 

not allow for these crewmen to operate a separate, revenue-generating cruise to nowhere 

excursion” and reiterated the reasons set forth in the October 2013 CBP letter. Id. at 2; AR 23. 

In addition, Mr. Foret noted that the applicable regulations, specifically, 8 C.F.R. § 214.2(d)(1), 

stated that “[a]n alien in this status [D-1 crewman] may be employed only in a crewman capacity 

on the vessel or aircraft of arrival, or on a vessel or aircraft of the same transportation company, 

and may not be employed in connection with domestic flights or movements of a vessel.” Id. 

Mr. Foret explained “that the cruise to nowhere is a domestic movement of its vessel” and that 

Plaintiffs’ “crewmen are working in the United States, not as crewmen but as employees of a 

vessel providing entertainment within the United States.” Id. Mr. Foret found that Plaintiffs’ 

own position that their evening “cruise to nowhere” did not need to comply with manifest and 

inspections requirements as the vessel and crew were not arriving in the United States because 

the vessel did not depart the United States supported CBP’s position. Id. Mr. Foret concluded: 

For these reasons [Plaintiffs’] cruise to nowhere voyages contravene the INA, and 

these operations must cease until such time as USC or LPR employees are 

retained to operate those voyages. This office will grant [Plaintiffs] a grace 

period until November 28, 2013, to comply with these requirements. 

Id. 
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On November 22, 2013, Plaintiffs requested and were granted a meeting with senior CBP 

officials in Washington, D.C. Compl. ¶ 11; Def.’s Stmt. ¶ 22. At the meeting, the CBP officials 

reiterated to Plaintiffs the position that federal law prevented individuals lacking authorization to 

work in the United States from operating “cruises to nowhere.” Compl. ¶ 11; Def.’s Stmt. ¶ 23. 

One day before the end of the grace period, Plaintiffs filed suit in this Court against CBP 

seeking injunctive and declaratory relief under the Administrative Procedures Act (“APA”). In 

their Complaint, Plaintiffs alleged that CBP’s “newfound position [interpreting INA Section 

101(a)(15)(D)(1) and 8 C.F.R. § 214.2(d)(1)] is arbitrary, capricious, and contrary to law” and 

was issued without an opportunity for notice or comment in violation of the APA. Compl. ¶ 43-

44, 76. On December 13, 2013, Plaintiffs filed a Motion for Preliminary Injunction to Preserve 

the Status Quo Pending Judicial Review and requested that the Court stay the effectiveness of the 

November 2013 CBP determination pending the outcome of the underlying suit. See Preliminary 

Injunction, ECF No. [13]. On December 20, 2013, in addition to filing their opposition to 

Plaintiffs’ Motion for a Preliminary Injunction, Defendants filed a Motion to Dismiss or, in the 

Alternative, for Summary Judgment. See Defendants’ Motion, ECF No. [18]. The original 

briefing schedule established by the parties and the Court contemplated a decision from the 

Court by January 6, 2014. However, additional briefing was required from the parties on a 

discrete issue. In addition, it came to the Court’s attention that the Defendant-Government had 

not filed the administrative record. The Court received the administrative record on January 7, 

2014. See Administrative Record, ECF No. [29]. On January 10, 2014, the Court issued an 

Order and Memorandum Opinion explaining the proper scope of the administrative record and 

approving the record submitted by Defendants on January 7, 2014. See Jan. 10, 2014 Order & 

Mem. Op., ECF Nos. [34], [35]. Accordingly, this matter is now ripe for review. 
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II. DISCUSSION 

Defendants move the Court to dismiss Plaintiffs’ case or, in the alternative, grant 

summary judgment in Defendants’ favor on two bases. First, Defendants argue that CBP’s 

November 2013 decision did not constitute “final agency action” and thus the Court is without 

subject matter jurisdiction to hear Plaintiffs’ claims or, alternatively, must dismiss Plaintiff’s 

case for failure to state a claim under the APA. Second, Defendants argue that Plaintiffs’ 

complaint cannot survive because it is predicated on the assumption that U.S. immigration 

officials have allowed “cruises to nowhere” to be operated with foreign crewmembers holding 

only D-1 visas for over 20 years, when in fact CBP has consistently stated the opposite. The 

Court addresses each basis for Defendants’ Motion in turn. 

A. Final Agency Action 

Under the APA, only “[a]gency action made reviewable by statute and final agency 

action for which there is no adequate remedy in a court” is subject to judicial review. 5 U.S.C. § 

704. In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court held that two conditions must 

be satisfied for a plaintiff to make the threshold showing of final agency action: 

First, the action must mark the “consummation” of the agency’s decision making 

process – it must not be of a merely tentative or interlocutory nature. And second, 

the action must be one by which “rights or obligations have been determined,” or 

from which “legal consequences will flow.” 

Id. at 177-78. In evaluating the finality of a pre-enforcement agency decision, such as the one 

presently at issue, courts in the D.C. Circuit often evaluate three additional factors set forth in 

Ciba-Geigy Corp. v. U.S. E.P.A., 801 F.2d 430 (D.C. Cir. 1986) as a complement to the Bennett

analysis. See CSI Aviation Services, Inc. v. U.S. Dept. of Transp., 637 F.3d 408, 411 (D.C. Cir. 

2011). These factors are: (1) whether the agency has “taken a ‘definitive’ legal position 

concerning its statutory authority”; (2) whether “the case presented ‘a purely legal’ question of 
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‘statutory interpretation’”; and (3) whether “the agency’s letter imposed an immediate and 

significant practical burden on [Plaintiff].” Id. at 412 (quoting Ciba-Geigy, 801 F.2d at 435-37). 

Defendants argue that CBP’s November 2013 determination satisfies none of these conditions. 

There is little question that the November 2013 determination met the second Bennett 

condition in so far as it “determined” “rights or obligations” of the Plaintiffs. Based on the 

specific facts of Plaintiffs’ case, the letter clearly made a legal determination that Plaintiffs’ 

“cruise to nowhere voyages contravene the INA” and ordered that “these operations must cease

until such time as USC or LPR employees are retained to operate those voyages.” Compl. Ex. E, 

at 2; AR 22-23 (emphasis added). The letter also gave a grace period for Plaintiffs to come into 

compliance with this legal order strongly implying that the agency would bring an enforcement 

action. In Sackett v. E.P.A., 132 S.Ct. 1367 (2012), the Supreme Court recently found an agency 

decision to “determine” “legal obligations” in a similar set of circumstances. In Sackett, the 

E.P.A. had sent plaintiffs a pre-enforcement compliance order stating that plaintiffs had violated 

the Clean Water Act by discharging fill material on their property and directing plaintiffs to 

“immediately [] undertake activities to restore [their property] in accordance with a Restoration 

Work Plan” and to “provide and/or obtain access to the Site . . . to EPA employees. . . .” Id. at 

1371. The Court found the E.P.A. order determined legal obligations because “by reason of the 

order,” plaintiffs were required to “restore” their property and give the E.P.A access to their 

property even though the E.P.A. had not taken steps to actually enforce the order.3

 Id. See also 

                                                             3

 Defendants attempt to distinguish this case from Sackett on the basis that penalties do 

not immediately flow from the November 2013 letter. In Sackett, the Court noted that the 

E.P.A’s compliance order had legal consequences because the order itself exposed Plaintiffs to 

double penalties in a future enforcement proceeding, among other things. Sackett, 132 S.Ct. at 

1371-2. While this fact was relevant to the Court’s analysis, it was not dispositive, which is 

consistent with the language found in Bennett: the agency action must be one by which “rights or 
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CSI Aviation Services, 637 F.3d at 412 (finding Department of Transportation letter to Plaintiff 

“imposed an immediate and significant burden” on plaintiff on the basis that it informed plaintiff 

that it had been acting as an unauthorized indirect air carrier in violation of the Federal Aviation 

Act, “warned” Plaintiff to “cease and desist from any further activity that would result in it 

engaging in indirect air transportation,” and gave Plaintiff a 180-day grace period to comply); cf. 

Holistic Candlers and Consumers Ass’n v. Food & Drug Admin., 664 F.3d 940, 944 (D.C. Cir. 

2012) (agency letter did not determine legal obligations where agency letter “requested” that 

plaintiffs take prompt voluntary action, which, if not promptly taken, “may” lead to enforcement 

actions). Accordingly, the Court finds the November 2013 determination satisfies the second 

Bennett prong. 

It is a far closer question, however, as to whether the November 2013 letter marked the 

“consummation” of the CBP’s decision making process. Defendants argue that the November 

2013 letter cannot constitute a final agency action because “even if the letters contemplated 

enforcement actions, CBP has not initiated any such enforcement actions, which would be 

initiated by a Notice of Intention to Fine [pursuant to 8 C.F.R. § 280.1] (which could be 

challenged before the BIA), or discretionary determinations by CBP officers regarding the 

issuance of conditional landing permits.” Def.’s Mot. at 14. While the facts of this case do not 

allow for a clear cut answer on this issue, the Court is persuaded that the Ciba-Geigy factors 

weigh in favor of treating the letter as a final agency action and granting judicial review. 

Although Defendants attempt to convince the Court of their position with a lengthy 

discussion of the several different types of enforcement actions the agency could bring and the 

                                                                                                                                                                                               

obligations have been determined,” or from which “legal consequences flow.” Bennett, 520 U.S.

at 177-78 (emphasis added).
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further administrative review attached to certain of those actions, the Court still finds that CBP 

has “taken a ‘definitive’ legal position concerning its statutory authority” that is not subject to 

“further agency consideration or modification.” Ciba-Geigy, 801 F.2d at 436-37. Here, upon 

learning of Plaintiffs’ activities, CBP contacted Plaintiffs at the end of October 2013 to inform 

them that they were unlawfully operating the “cruise to nowhere” with crewmembers holding 

only D-1 visas. The CBP then sent a formal letter to Plaintiffs outlining the agency’s legal 

position, giving Plaintiffs a three-day grace period in which to comply with the law, and 

indicating how Plaintiffs could “appeal this decision” to a higher official within CBP in Miami. 

In response, Plaintiffs sent a five-page appeal letter with legal argument to the Miami Director of 

Field Operations who denied the appeal in a November 2013 letter and in no uncertain terms 

reiterated at length CBP’s position that Plaintiffs had violated the law and were continuing to do 

so. The November 2013 letter further ordered Plaintiffs to “cease” operations until they were in 

compliance with immigration law and gave Plaintiffs a twenty-one-day grace period in which to 

comply. Plaintiffs then met with senior CBP officials in Washington, D.C. who confirmed the 

agency’s position. These facts are similar to the facts on which the Court of Appeals for the 

D.C. Circuit relied in the case of CSI Aviation Services when the appellate court found that the 

Department of Transportation (“DOT”) had issued a “definitive” statement of the agency’s legal 

position. CSI Aviation Services, 637 F.3d at 412 (quoting Ciba-Geigy, 801 F.2d at 437). In CSI 

Aviation Services, the DOT sent CSI a letter indicating that it had been acting as an unauthorized 

indirect air carrier in violation of the Federal Aviation Act. Id. at 410. The agency “warned” 

CSI to “cease and desist” from any further activity that would result in engaging in indirect air 

transportation” and gave CSI a grace period to bring their activities into compliance with the law. 

Id. CSI submitted a petition to DOT for an exemption from the certification requirement and 
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presented legal arguments as to why DOT’s interpretation of the law was misguided. Id. DOT 

granted CSI a temporary exemption, but indicated in the exemption order that DOT retained the 

same legal view. Id. at 411. CSI then filed suit in district court prior to the expiration of the 

temporary exemption. Id. In finding DOT to have taken a final action, the appellate court relied 

upon the fact that DOT had issued a “definitive” statement when it “declared in no uncertain 

terms” that CSI had violated the law in its initial warning letter and reiterated that position after 

CSI protested and presented its legal argument as to why DOT was misinterpreting the law. Id. 

at 412. The appellate court found that the warning letter and exemption order “gave no 

indication that [the agency’s legal position] was subject to further agency consideration or 

possible modification.” Id. 

Likewise here, CBP’s November 2013 letter did not simply make a “preliminary 

determination” that Plaintiffs conduct was unlawful, see Reliable Automatic Sprinkler Co., Inc. 

v. Consumer Product Safety Commission, 324 F.3d 726, 730 (D.C. Cir. 2003), or suggest that 

further information and agency deliberation was required before the agency could definitively 

determine the conduct was unlawful, see Holistic Candlers, 664 F.3d at 944. Instead, CBP, in its 

communications with Plaintiffs, repeatedly stated “in no uncertain terms” that Plaintiffs’ conduct 

violated federal immigration laws. CSI Aviation Services,637 F.3d at 412. See also City of 

Dania Beach v. FAA, 485 F.3d 1181, 1188 (D.C. Cir. 2007) (finding an agency letter to 

constitute final agency action where “[n]othing in the letter indicate[d] that the [agency’s] 

statements and conclusions [were] tentative, open to further consideration, or conditional on 

future agency action.”). Accordingly, as the Court of Appeals did in CSI Aviation Services Inc., 

this Court finds that CBP has given a “definitive” legal position. Ciba-Geigy, 801 F.2d at 437. 
13

Defendants argue, however, that CBP’s position is subject to further agency 

consideration because Plaintiffs “have administrative remedies and an administrative appeal 

process available to them.” Def.’s Reply at 7 (emphasis added). Specifically, Defendants cite to 

8 C.F.R. § 280.12, which states that within thirty days of receiving a Notice of Intention to Fine, 

any person upon whom such a notice has been served “may file” a “written defense setting forth 

the reasons why a fine should not be imposed,” and § 1280.1(b), giving the Board of 

Immigration Appeals “appellate authority to review DHS decisions involving fines.” However, 

the facts relevant to CBP’s position are undisputed and thus CBP’s position represents a “purely 

legal” question of “statutory interpretation”—the second Ciba-Geigy factor to consider. Thus, 

even if Plaintiffs “may” file a written defense after receiving a Notice of Intention to Fine, “in 

the absence of disputed facts that would bear on the statutory question, there [is] no benefit in 

waiting for the agency to develop a record for granting judicial review.” CSI Aviation Services, 

637 F.3d at 411; cf. Reliable Automatic Sprinkler, 324 F.3d at 734 (finding no final agency 

action in part because the question whether the statutory term ‘consumer product’ included 

plaintiff’s sprinkler heads, and thus gave the Commission statutory authority to regulate plaintiff, 

was not a purely legal one, since the application of the statutory term to the sprinkler heads 

would “clearly involve the resolution of factual issues and the creation of a record”). 

Furthermore, in this case, any review or appeal under these regulations would presumably 

focus on the grounds for imposing a specific fine, not the legal question at issue here. Cf. 

Reliable Automatic Sprinkler, 324 F.3d at 733 (“a hearing before the Commission will not be an 

idle gesture, because the agency has made it clear that the interpretation of “consumer product” 

with respect to sprinkler heads remains to be determined.”). Indeed, the further agency action 

available here is distinct from the type of agency action that courts have found to preclude a 
14

finding that the agency decision making process has been “consummated.” For example, in 

Holistic Candlers, the Court of Appeals for the D.C. Circuit found the FDA’s letter was not a 

final agency action because the agency “may only ban devices after going through a formal 

process that it has not undertaken here.” 664 F.3d at 945. Likewise, in Reliable Automatic 

Sprinkler, the Court of Appeals found no final agency action where the Consumer Product Safety 

Commission issued a preliminary determination that plaintiff’s sprinklers violated the law, but 

was required by statute to bring a formal, on-the-record adjudicative administrative proceeding 

before it could make any legally binding determination. 324 F.3d at 731-32. Importantly, even 

though plaintiff in that case sought a declaratory judgment that the Commission was acting 

outside its jurisdiction—a largely legal question—the appellate court found that the Commission 

had “not as yet made a record determination that it has jurisdiction over [plaintiff’s] sprinkler 

heads,” which it could only do by filing an administrative complaint. Id. at 730. In these cases, 

further agency procedures were required before the agency could even make a definitive decision 

about the legality of the plaintiffs’ actions. Here, CBP’s declarations of Plaintiffs unlawfulness 

are not conditioned on further agency action. Having definitively declared the illegality of 

Plaintiffs’ activities, any further agency action—if Plaintiff chooses to engage in it—comes at 

the enforcement stage. There is no indication that any such enforcement process would change 

CBP’s legal position or require that an agency record be developed given the purely legal nature 

of CBP’s position. 

Defendants also argue that “other enforcement options are available under the statute,” 

such as “simply ordering the crew to be detained on board or removed [under 8 U.S.C. §§ 1282, 

1284(a)(2)] without ever issuing any penalties” and thus Plaintiffs do not necessarily face any 

imminent penalties from CBP’s November 2013 letter. Def.’s Reply at 7. As an initial matter, 
15

the Court fails to see how 8 U.S.C. § 1284(a)(2) and § 1282(b) do not penalize the employer 

since both provisions require an employer to detain an employee on board and the latter requires 

the master or commanding officer of the vessel on which the illegal crewman arrived to, in 

addition, “remove[] [the crewman] from the United States at the expense of the transportation 

line which brought him to the United States” and bear “the expenses of his detention” until 

removed. Furthermore, if Defendants choose to take this enforcement action against Plaintiffs, it 

is unclear to the Court, and the Defendants have not indicated, what administrative review, if 

any, would occur before the CBP took that action. In any event, as described above, the CBP has 

definitively stated its statutory authority for determining that Plaintiffs are employing illegal 

crewman, and that position is based on undisputed facts and a statutory interpretation which will 

not be aided by any further administrative deliberations.4

 

The Supreme Court in Bennett “highlight[ed] the importance of avoiding disruption of 

the administrative decisionmaking process, but it d[id] not foreclose all pre-enforcement 

challenges.” CSI Aviation Services, 637 F.3d at 411. Where, as here, CBP has taken an action 

which imposes a clear legal obligation on Plaintiffs to cease their operations until their 

                                                             4

 Defendants also argue that Plaintiffs fail to state a claim under the APA because the APA 

only allows review of final agency action “for which there is no adequate remedy in a court.” 5 

U.S.C. § 704. However, in making their argument, Defendants only argue that there are other 

administrative remedies available to Plaintiffs, apparently forgetting that the statutory language 

only speaks of “adequate remed[ies] in a court.” The Supreme Court has affirmed that the 

analysis of “adequate remedies” is limited to remedies in a court. See Bowen v. Massachusetts, 

487 U.S. 879, 903 (1988) (explaining that “[w]hen Congress enacted the APA to provide a 

general authorization for review of agency action in the district courts, it did not intend that 

general grant of jurisdiction to duplicate the previously established special statutory procedures 

relating to specific agencies,” such as statutes setting out that “Federal Trade Commission and 

National Labor Relations Board orders were directly reviewable in the regional courts of appeals, 

and Interstate Commerce Commission orders were subject to review in specially constituted 

three-judge district courts.”); see also Sackett, 132 S.Ct. at 1372 (finding that there was “no other 

adequate remedy in a court” because plaintiffs did not have alternative routes to “judicial 

review,” specifically they could not initiate a civil action in court under the Clean Water Act). 

Accordingly, Defendants’ argument on this point is unavailing. 
16

crewmembers are in compliance with federal immigration law, and expressed a definitive 

position that presents a legal question of statutory interpretation that is not conditioned on or 

subject to modification by further agency action, the Court is assured that it can treat this preenforcement agency action as final without disruption of the administrative decisionmaking 

process.5

B. Merits of CBP’s November 2013 Determination 

The Court now turns to Defendants’ Motion to Dismiss or, in the Alternative, for 

Summary Judgment on the merits of Plaintiffs’ underlying complaint. Although styled in the 

alternative as a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), 

both parties rely on materials, notably affidavits, that are outside the scope of the pleadings. 

Federal Rule of Civil Procedure 12(d) requires a motion to dismiss under Rule 12(b)(6) to be 

treated as a motion for summary judgment, “if matters outside the pleadings are presented to, and 

                                                             5

 Defendants argue that the Court should dismiss Plaintiffs’ action under either Fed. R. Civ. P 

12(b)(6), for failure to state a claim under the APA, which requires final agency action in order 

for a plaintiff to have a cause of action, or under Fed. R. Civ. P. 12(b)(1), because some panels in 

this Circuit have held that the issue of whether an agency action is final under the APA is 

jurisdictional. Indeed, from the 1980s to 2005, the Court of Appeals for the D.C. Circuit 

repeatedly held that the APA's reviewability provisions were jurisdictional notwithstanding a 

footnote in a Supreme Court opinion, Air Courier Conference v. Am. Postal Workers Union, 498 

U.S. 517, 523 n. 3 (1991), observing that the judicial review provisions of the APA are not 

jurisdictional. See, e.g., Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 

2001). However, since 2006, and the Court of Appeals’ decisions in Center for Auto Safety v. 

NHTSA, 452 F.3d 798, 805 (D.C. Cir. 2006), and Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 

2006), panels have held with increasing confidence that whether an agency action is final under 

the APA is not a jurisdictional question. See, e.g., Vietnam Veterans of America v. Shinseki, 599 

F.3d 654, 661 (D.C. Cir. 2010) (“We think the proposition that the review provisions of the APA 

are not jurisdictional is now firmly established.”). In any event, this distinction is irrelevant 

because the Court finds CBP’s November 2013 determination was a final agency action and 

grants Defendants’ Motion on their alternative basis—that CBP’s interpretation of federal 

immigration law did not violate notice and comment requirements and is not arbitrary and 

capricious. 
17

not excluded by the court.” Plaintiffs do not contend that there are any facts in material dispute 

and do not contest that Defendants’ Motion should not be treated as a motion for summary 

judgment. Accordingly, the Court shall treat Defendants’ Motion solely as one for summary 

judgment. 

1. Legal Standard 

Plaintiff’s Complaint challenges the CBP’s November 2013 determination as violating 

notice and comment procedures and as being “arbitrary, capricious, and contrary to the law.” 

Compl. ¶ 43-44, 76. 

a. Review of Agency Determinations under the APA 

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment 

if the movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” However, “when a party seeks review of agency action 

under the APA [before a district court], the district judge sits as an appellate tribunal. The ‘entire 

case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 

(D.C. Cir. 2001). Accordingly, “the standard set forth in Rule 56 does not apply because of the 

limited role of a court in reviewing the administrative record . . . Summary judgment is [ ] the 

mechanism for deciding whether as a matter of law the agency action is supported by the 

administrative record and is otherwise consistent with the APA standard of review.” Southeast 

Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C. 2010). 

A reviewing court can set aside agency action if it is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory right,” or “without observance of procedure 

required by law.” 5 U.S.C. §§ 706(2)(A), (C), (D). An agency's decision may be arbitrary or 
18

capricious if any of the following apply: (i) its explanation runs counter to the evidence before 

the agency or is so implausible that it could not be ascribed to a difference of view or the product 

of agency expertise; (ii) the agency entirely failed to consider an important aspect of the problem 

or issue; (iii) the agency relied on factors which Congress did not intend the agency to consider; 

or (iv) the decision otherwise constitutes a clear error of judgment. Motor Vehicle Mfrs. Ass'n of 

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); accord Jicarilla Apache 

Nation v. U.S. Dep't of Interior, 613 F.3d 1112, 1118 (D.C. Cir. 2010). 

In addition, “[a]s a general matter, an agency's interpretation of the statute which that 

agency administers is entitled to Chevron deference.” Fox v. Clinton, 684 F.3d 67, 75 (D.C. Cir. 

2012) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)). In the 

first step of the Chevron analysis, the Court reviews the statute de novo to determine whether or 

not the statute is ambiguous. Id. at 842–43. If the statute is ambiguous, the Court then must 

defer to the agency's interpretation of the statute unless it is “manifestly contrary to the statute.” 

Id. at 844. Thus, the inquiry for the Court under the second step of Chevron is whether the 

agency's interpretation of Congress' instructions is reasonable. The Court's inquiry under the 

second step of Chevron “overlaps with [the Court's] inquiry under the arbitrary and capricious 

standard.” Am. Fed'n of Gov't Employees, AFL–CIO, Local 446 v. Nicholson, 475 F.3d 341, 

345–46 (D.C. Cir. 2007). “Whether a statute is unreasonably interpreted is close analytically to 

the issue whether [sic] an agency's actions under a statute are unreasonable.” Gen. Instrument 

Corp. v. Fed. Commc'ns Comm'n, 213 F.3d 724, 732 (D.C. Cir. 2000). 

Plaintiff, as the party challenging the agency action, bears the burden of proof. Abington 

Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 722 (D.C. Cir. 2009) (citing City of 

Olmsted Falls v. Fed. Aviation Admin., 292 F.3d 261, 271 (D.C. Cir. 2002)). In assessing the 
19

merits of Plaintiff's challenge, the Court begins with the presumption that the agency’s actions 

were valid. Grid Radio v. Fed. Commc'ns Comm'n, 278 F.3d 1314, 1322 (D.C. Cir. 2002). So 

long as the agency decision has some rational basis, the Court is bound to uphold it. Hosp. of 

Univ. of Penn. v. Sebelius, 634 F.Supp.2d 9, 13 (D.D.C. 2009) (citing Citizens to Preserve 

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). 

b. Notice and Comment Rulemaking Requirements 

Notice and comment rulemaking procedures are required under the APA when 

substantive rules are promulgated, modified, or revoked. American Tort Reform Ass’m v. OSHA, 

--- F.3d ---, 2013 WL 6818711, *6 (D.C. Cir. 2013) (citing 5 U.S.C. § 553) (emphasis added). 

The APA defines a “rule” as “an agency statement of general or particular applicability and 

future effect designed to implement, interpret, or prescribe law or policy or describing the 

organization, procedure, or practice requirements of an agency and includes . . . practices bearing 

on any of the foregoing.” 5 U.S.C. § 551(4). Substantive or legislative rules are those that 

“grant rights, impose obligations, or produce other significant effects on private interests,” 

Batterton v. Marshall, 648 F.2d 694, 701–02 (D.C. Cir. 1980) (citations omitted), or which 

“effect a change in existing law or policy,” Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984) 

(quotations omitted). Interpretative rules, general statements of policy, and rules of agency 

organization, procedure, or practice, however, are expressly excluded from the APA’s notice and 

comment requirements for rulemaking. See 5 U.S.C. § 553(b). 

2. Discussion 

Plaintiffs argue that in determining Plaintiffs’ “cruise to nowhere” could not be manned 

by foreign crewmembers holding only D-1 visas, CBP reversed its “longstanding administrative 

interpretation and practice” under the Passenger Vessel Services Act (“PVSA”) and the INA, 
20

permitting the operation of cruises to nowhere using foreign crews. Compl. ¶¶ 2-5; Pl.’s Opp’n. 

at 20. Plaintiffs allege that CBP’s decision to reverse its prior interpretation in the November 

2013 letter violated notice and comment rulemaking requirements and was arbitrary, capricious, 

and contrary to the law. Compl. ¶ ¶ 43-44, 76. As evidence that CBP’s November 2013 

determination represented a modification of CBP’s “longstanding interpretation and practice” 

regarding “cruises to nowhere,” Plaintiffs point to (1) United States Customs rulings interpreting 

the PVSA, and (2) CBP general practices and specific assurances suggesting that Plaintiffs could 

operate their “cruise to nowhere” with a foreign crew. Defendants respond that the November 

2013 determination “simply refined the contours of an already existing legal norm set forth in the 

[INA], [Immigration and Naturalization Service] General Counsel Opinions from 1989 and 

1991, BIA precedent from 1955, and the agency’s regulations,” which have consistently required 

that all “cruises to nowhere” abide by federal immigration law. Def.’s Mot. at 22, 27. The Court 

begins by considering the evidence presented by Plaintiffs before turning to Defendants’ 

evidence and determining whether CBP’s November 2013 determination violated notice and 

comment requirements or was arbitrary, capricious, or contrary to the law. 

a. CBP Interpretations of Coastwise Laws 

In arguing that CBP’s “longstanding position” has been to permit “cruises to nowhere” 

manned by foreign crewmembers, Plaintiffs rely primarily on United States Customs rulings 

holding that “cruises to nowhere” are “not considered coastwise trade” and thus non-coastwise 

qualified vessels are permitted to operate such cruises. Defendants concede in their November 

2013 determination that “cruises to nowhere” are not considered coastwise trade and “therefore, 

requirements imposed by coastwise laws are not applicable.” Compl. Ex. E; AR 22-23 

(November 7, 2013 CBP Letter), at 1. However, this concession and these specific U.S. 

Customs rulings are inapposite. The rulings on which Plaintiffs rely only answer the specific 
21

question of whether a “foreign-flagged vessel” can operate a “cruise to nowhere” in light of the 

PVSA’s prohibition of foreign vessels in coastwise trade. None of the rulings mention, much 

less opine, on the question of foreign crewmembers and their authorization to work on such 

cruises. See HQ 111490 (Feb. 27, 1991); HQ 112216 (May 20, 1992); HQ 113846 (May 5, 

1997); HQ HO55001 (March 20, 2009). Plaintiffs concede as much in their pleadings: “it is 

certainly true that the CBP prior rulings . . . do not opine specifically on the issue of D-1 

crewmembers.” Pl.’s Opp’n. at 28. Nevertheless, Plaintiffs argue that since the rulings “all 

concern non-coastwise qualified [i.e. foreign] vessels, which are commonly understood to have a 

crew that is primarily if not exclusively foreign” the rulings should be read as allowing foreigncrewed vessels to conduct “cruises to nowhere.” Id.; see also id. at 20 (“In each of these 

[rulings], CBP knew or should have known that the crews of those vessels were likely also 

foreign, without mentioning the latter fact.”). In essence, Plaintiffs argue that in repeatedly 

ruling pursuant to the coastwise statute that foreign-flagged vessels could operate “cruises to 

nowhere” CBP was actually “definitively” determining that foreign-crewed vessels could operate 

“cruises to nowhere” pursuant to all applicable laws. 

The Court finds that Plaintiffs’ argument, which is based on an alleged “common 

understanding,” is grossly insufficient to show that CBP has had a “longstanding” policy of 

allowing “cruises to nowhere” to be operated by foreign crews.6

 At most, one could infer from 

                                                             6

 To further support their reasoning, Plaintiffs point to remarks made by Congressman 

Gerry Studds in relation to a bill introduced in the 103rd Congress that Plaintiffs claim was 

“designed to amend the PVSA to bring cruises to nowhere within the definition of coastwise 

trade.” 

[U]nder an unusual interpretation by the Customs Service, if a vessel leaves a 

U.S. port, sails beyond the 3-mile territorial sea, and returns to the original port, 

then it can be foreign-flag, built in a subsidized foreign shipyard, owned by 

foreign citizens, and manned by low wage foreign personnel. 
22

the U.S. Customs rulings that by interpreting “cruises to nowhere” as non-coastwise trade, CBP 

has interpreted such cruises as being exempt from all coastwise trade laws including the 

coastwise laws that impose citizenship requirements on certain vessels. However, even if 

Plaintiffs can argue that the CBP has long held that “cruises to nowhere” are exempt from the 

citizenship requirements of coastwise trade laws, this does not mean that such cruises are exempt 

from federal immigration laws. The Court finds nothing in the U.S. Customs rulings that can be 

read as exempting “cruises to nowhere” from federal immigration laws. Moreover, Defendants 

present strong evidence that the CBP (and formerly the INS) has in fact long interpreted federal 

immigration laws to apply to “cruises to nowhere” and their crewmembers. See, e.g., M/V 

Southern Elegance, 1 Imm. & Natural. Serv. & Dep’t of Justice Legal Op. § 91-4 (Jan. 11, 1991)

(“Employment of aliens on board the Southern Elegance to conduct “cruises to nowhere” must 

be done in compliance with the immigration laws of the United States.”). As Plaintiffs cannot 

even point to a U.S. Customs ruling stating that “cruises to nowhere” can be manned by foreign 

crew, much less a ruling opining that federal immigration laws do not apply to “cruises to 

nowhere,” Plaintiffs cannot argue that CBP’s November 2013 determination applying federal 

immigration law to Plaintiffs’ “cruise to nowhere” represents a “significant revision” to the 

                                                                                                                                                                                               

139 Cong. Rec. H 10-391 (Nov. 20, 1993). Plaintiffs also point to similar remarks made by 

Congressman Jack Fields. See Pl.’s Opp’n. at 2 n. 4. The Court does not find these citations 

persuasive. These remarks occurred in the context of legislation that Congress considered but 

failed to enact. Furthermore, CBP is not bound by the opinions of a member of Congress on a 

statute; nor is the opinion of a Member of Congress authoritative as to the agency’s position. See 

United States v. Southwestern Cable Co., 392 U.S. 157, 170 (1994) (“[T]he views of one 

Congress as to the construction of a statute adopted many years before by another Congress have 

very little, if any, significance.”). Moreover, the Congressmen’s statements dealt with an 

interpretation of the PVSA and do not address any application of federal immigration law to 

“cruises to nowhere.” 
23

CBP’s prior interpretation of “cruises to nowhere” that requires notice and comment procedures. 

Cf. Alaska Professional Hunters Ass’n, Inc. v. F.A.A., 177 F.3d 1030 (D.C. Cir. 1999) (holding 

notice and comment procedures were required when FAA sent “Notice to Operators” that guide 

pilots were required to abide by FAA regulations applicable to commercial air operations when 

FAA had previously and consistently advised guide pilots that they were not governed by 

regulations dealing with commercial pilots). 

b. CBP Representations and Practice 

As part of their argument that CBP’s November 2013 letter represented a significant 

change in CBP’s policy regarding foreign crewmen on “cruises to nowhere,” Plaintiffs also 

suggest that throughout the business planning process, Plaintiffs “relied on CBP’s approval and 

acquiescence in structuring . . . its operations” to include “cruises to nowhere” manned by 

foreign crewmembers. Pl.’s Opp’n. at 6. Plaintiffs further state that “it is also common 

knowledge in the industry that CBP has for many years permitted non-coastwise vessels to 

operate cruises to nowhere with crews consisting of D-1 visa holders.” Lopez Affidavit, ECF 

No. [22], at ¶ 10. Essentially, Plaintiffs appear to be arguing that, in light of these assurances 

and practices, CBP cannot now enforce a contrary policy without complying with notice and 

comment procedures. The Supreme Court has repeatedly rejected such arguments admonishing 

for many years that “equitable estoppel will not lie against the Government as it lies against 

private litigants.” OPM v. Richmond, 496 U.S. 414, 419 (1990) (citing cases). “[A]lthough the 

Court has declined to hold that there are no circumstances in which estoppel may run against the 

government, it has made clear that the bar for succeeding on such a claim is high.” Millard 

Refrigerated Services, Inc. v. Secretary of Labor, 718 F.3d 892, 897-98 (D.C. Cir. 2013) (citing 

Richmond, 496 U.S. at 421-23); see also Richmond, 496 U.S. at 421-22 (noting that the Court's 

opinions have “mention[ed] the possibility, in the course of rejecting estoppel arguments, that 
24

some type of ‘affirmative misconduct’ might give rise to estoppel against the Government.”). 

Plaintiffs cannot reach this high bar because they offer no evidence that they requested prior 

permission to use a crew comprised of crewmembers holding D-1 visas—or even mentioned the 

status of the crew—and that CBP approved or acquiesced to that crew status. At most, the 

correspondence included in the administrative record shows Plaintiffs asked CBP officials about 

the agency’s need to inspect the passengers on a “cruise to nowhere,” for which CBP confirmed 

there was no need. AR 30-32; Def.’s Stmt. ¶ 8. However, CBP’s confirmation in no way 

addresses the vessel’s crew and is not inconsistent with the agency’s position that D-1 crewmen 

cannot be employed upon a “cruise to nowhere.” Plaintiffs also submitted with their pleadings 

an affidavit from Bimini SuperFast Operations Director of Security Jose Lopez in which he 

contends that “[t]here is no question that CBP knew that our crew was foreign because the CBP 

regularly conducted (and continues to conduct) inspections of the vessel and its crew where the 

crew must disembark and be interviewed prior to returning to the vessel.” Lopez Affidavit, at ¶ 

14. However, Mr. Lopez’s suggestion that CBP knowingly acquiesced to Plaintiffs’ employing 

foreign crewmembers on their “cruises to nowhere” is based on pure speculation and 

supposition. 

The same is true of Mr. Lopez’s assertion that it is “common knowledge in the industry 

that CBP has for many years permitted non-coastwise vessels to operate cruises to nowhere with 

crews consisting of D-1 visa holders.” Id. ¶ 10. Neither Mr. Lopez nor Plaintiffs offer any 

support for what ultimately remains a bald assertion by Mr. Lopez. In his affidavit, Senior Vice 

President of Bimini SuperFast Operations Gregory Karan states that he was general manager of 

another cruise vessel that operated “cruises to nowhere” manned by all foreign crew with D-1 

visas. Karan Supp. Affidavit, at ¶ 2. However, Mr. Karan’s assertion is also no more than a bald 
25

assertion based in part on hearsay and for which he offers no support. Furthermore, Mr. Karan’s 

affidavit offers no indication that his previous cruise line’s activities came to the attention of the 

CBP. In light of the fact that the Court has before it opinions where the INS did not allow D-1 

crewmen to operate “cruises to nowhere” when such operations came to the agency’s attention, 

the Court finds Mr. Karan’s assertion unpersuasive in establishing CBP policy or practice. 

Moreover, “unless Congress has indicated otherwise,” agencies charged with enforcing the law 

retain discretion not to prosecute every violation that comes to their attention. Millard 

Refrigerated Services, 718 F.3d at 898 (quoting Heckler v. Chaney, 470 U.S. 821, 838 (1985)). 

Accordingly, having presented no evidence that could give rise to estoppel against the 

government or otherwise establish a definitive practice by CBP, Plaintiffs have failed to show 

that the CBP’s November 2013 letter significantly revised its legal interpretation and thus 

required an opportunity for notice and comment. 

c. Interpretation of INA

As Plaintiffs’ arguments are unavailing that CBP’s November 2013 determination 

represents an abrupt departure from the CBP’s prior interpretations of the coastwise laws or from 

CBP’s prior immigration enforcement activities, Plaintiffs’ only remaining argument is that the 

November 2013 determination is a significant modification of CBP’s interpretation of the INA. 

In its November 2013 determination, CBP notes that it has “consistently taken the position that 

applicable [immigration] law allows for the operation of a cruise to nowhere from a United 

States port only when the crew consists of USC and/or LPR crewmen.” AR 22. CBP 

acknowledges that Plaintiffs’ crewmembers are in compliance to operate as D-1 crewmen on the 

daily cruise to Bimini, but not the “cruise to nowhere” which “is a separate, revenue-generating 

cruise, with its own manifest of paying passengers.” Id. at 22-23. CBP explains that the 
26

crewmen on this “distinct voyage” fail to satisfy the requirements of INA § 101(a)(15)(D)(i)—

which they must satisfy in order to be bona fide D-1 visa holders—because “the crewmen do not 

depart the United States and do not land temporarily and solely in pursuit of their calling as 

crewmen on this specific excursion.” Id. at 23. The CBP further notes that 8 C.F.R. § 

214.2(d)(1) does not permit an alien in D-1 status “to be employed in connection with domestic 

flights or movements of a vessel or aircraft.” Id. 

To support their argument that this position has consistently been applied, Defendants 

point to three INS General Counsel opinions holding that D-1 crewmen cannot operate “cruises 

to nowhere” because they do not “depart” from the United States. See AR 1-12 (Mistral II, 1 

Imm. & Natural. Serv. & Dep’t of Justice Legal Op. § 89-49 (June 21, 1989); M/V Southern 

Elegance, 1 Imm. & Natural. Serv. & Dep’t of Justice Legal Op. § 91-4 (Jan. 11, 1991); M/V 

Merchant Victor, Genco Op. No. 94-26, 1994 WL 1753130 (June 6, 1994)). Plaintiffs concede 

that these opinions all support the proposition that “foreign crewmembers cannot rely on cruises 

to nowhere alone to qualify for D-1 status.”7

 Pl.’s Opp’n. at 25. Consequently, the Court fails to 

see how the CBP’s November 2013 determination that a distinct “cruise to nowhere” cannot be 

operated by crewmen in D-1 status represents a significant “modification” to CBP’s longstanding 

position regarding “cruises to nowhere” operated by foreign crewmembers. Plaintiffs further 

argue that CBP’s reliance on 8 C.F.R. § 214.2(d)(1)’s prohibition of D-1 status crewmen 

operating the “domestic movements” of a vessel is clearly a modification of CBP’s longstanding 

position that “cruises to nowhere” are not coastwise trade. But, here again, Plaintiffs confuse 

                                                             7

 Technically, Plaintiffs only concede that the M/V Southern Elegance and Mistral II 

opinions support this proposition. However, Plaintiffs acknowledge that the M/V Merchant 

Victor opinion held that a vessel was allowed to operate with D-1 crewmen because it sailed to a 

foreign port. Plaintiffs only dismiss the opinion because it is based on the “narrow and esoteric 

ground that ports in the Virgin Islands may be treated as foreign ports under particularized 

circumstances.” See Pl.’s Opp’n. at 23. 
27

CBP’s interpretations of coastwise laws with the agency’s interpretation of distinct immigration 

laws which have their own distinct purposes. Accordingly, the Court finds that Plaintiffs have 

failed to present evidence that CBP has done anything but consistently interpret and apply the 

immigration statutes within its authority. The Court holds that CBP did not violate the APA’s 

notice and comment rulemaking requirements in issuing its November 2013 determination. See 

Alaska Professional Hunters Ass’n, 177 F.3d at 1034 (“When an agency has given its regulation 

a definitive interpretation, and later significantly revises that interpretation, the agency has in 

effect amended its rule, something it may not accomplish without notice and comment.” 

(emphasis added)); Shalala v. Guernsey Memorial Hosp., 115 S.Ct. 1232, 1239 (1995) 

(explaining that APA rulemaking is required where an interpretation “adopt[s] a new position 

inconsistent with . . . existing regulations.”).

Furthermore, based on the agency record, the Court finds that CBP’s November 2013 

determination was not arbitrary, capricious, or contrary to the law. Again, it is important to note 

that Plaintiffs do not dispute the CBP’s interpretation of INA 101(a)(15)(D)(i) as not permitting 

D-1 visa crewmen to operate “cruises to nowhere” because they do not “depart” the United 

States as required by the statute. See Pl.’s Opp’n. at 25. Likewise, Defendants do not dispute 

that Plaintiff’s crewmen properly hold D-1 visas for the daily cruise to Bimini because they 

actually depart the United States to a foreign port. See Pl.’s Ex. E (November 7, 2013, CPP 

letter). Plaintiffs argue, however, that because the crewmen operating the evening “cruises to 

nowhere” depart “virtually every single day” for the foreign port of Bimini they are in 

compliance with the D-1 visa’s requirement that the crewmen “intend to land temporarily” and 

“depart from the United States.” Pl.’s Opp’n. at 25. Essentially, Plaintiffs try to broaden the 

interpretation of the statutory term “depart” by attaching the separate “cruise to nowhere” 
28

operation onto the daily cruise to Bimini. Plaintiffs, however, offer no legal support for this 

analysis of their “cruise to nowhere.” Plaintiffs only argue that unlike the “cruise to nowhere” 

crew in M/V Southern Elegance who could not show they intended to remain in the United States 

only temporarily because they lived in apartments on shore and only departed to a foreign port 

once a month solely for the purpose of complying with the D-1 visa requirements, the crewmen 

on Plaintiffs’ vessel live onboard and genuinely intend to engage in foreign commerce by 

conducting daily cruises to Bimini. Pl.’s Opp’n. at 26. However, the M/V Southern Elegance 

opinion in no way affirmatively states that if crewmembers on a distinct “cruise to nowhere” 

voyage also operate a separate, legitimate daily foreign cruise they will be considered to be 

properly operating the “cruise to nowhere” on a D-1 visa. Indeed, this interpretation would 

appear to be contrary to 8 C.F.R. § 214.2(d)(1), which states that an alien who qualifies for INA 

section 101(a)(15)(D)(i) “may be employed only in a crewman capacity on the vessel or aircraft 

of arrival, or on a vessel or aircraft of the same transportation company, and may not be 

employed in connection with domestic flights or movements of a vessel or aircraft.” 

Nevertheless, even if the statute is ambiguous, under Chevron, the Court must defer to the 

agency interpretation unless it is “manifestly contrary to the statute.” Chevron, 467 U.S. at 844. 

Here, CBP’s view is not “manifestly contrary” to the provision of the statute at issue as the 

provision, which focuses on a crewman’s intent to “land temporarily” and “depart,” in no way 

precludes an interpretation of the landing and departure as applying to each distinct voyage of 

the vessel. Moreover, Plaintiffs’ interpretation would effectively allow alien crewmen to work in 

the United States without proper authorization so long as the vessel they operated occasionally 

departed on a legitimate foreign cruise, effectively skirting immigration employment laws. 

Accordingly, in light of the deference the Court must give the agency’s interpretation, Plaintiffs’ 
29

failure to point to any legal authority affirmatively supporting their analysis, and U.S. Custom’s 

consistent opinions holding that crewmembers are not in compliance with their D-1 visa status 

when they operate “cruises to nowhere,” the Court has no difficulty concluding that CBP’s 

November 2013 determination was not arbitrary, capricious, or contrary to law. 

III. CONCLUSION 

For the foregoing reasons, Defendants’ Motion to Dismiss or, in the Alternative, for 

Summary Judgment is DENIED in that CBP’s November 2013 determination was a final agency 

action, but GRANTED on the basis that the November 2013 determination did not violate notice 

and comment rulemaking procedures and was not arbitrary, capricious, or contrary to the law. 

Accordingly, Plaintiffs’ Motion for a Preliminary Injunction is DENIED AS MOOT. An 

appropriate Order accompanies this Memorandum Opinion.

____/s/________________________ 

COLLEEN KOLLAR-KOTELLY 

United States District Judge