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 fi led 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 Bo rder Protection (“Defe ndants” or “CBP”), challenging under the Administrative Procedures Act (“APA”) CBP’s November 2013 decision prohibiting Plaintiffs from opera ting 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 cons ideration of the pleadings 1 , 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 Su mm. J., ECF No. [18] (“Def.’s Mot.”); Def.’s Stmt. of Material Facts Not in Dispute, ECF No. [18-4] (“Def.’s St mt.”); Pl.’s Reply to O pp’n to Mot. for Prelim. Inj. and Pl.’s Opp’n to Def.’s Mot. to Dismiss, ECF No. [20] (“Pl.’s O pp’n.”); Def.’s.Reply to Opp’n to Mot. to Dismiss or for Summ. J., EC F No. [25] (Def.’s Reply); Def.’s Supp. Response2 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, caprici ous, or contrary to the law. Accordingly, Defendants’ Motion to Dismiss or, in the Altern ative, 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 determin ation did not violate APA notice and comment procedures nor was it arbitrary, cap ricious, or contrary to the law. In light of this decision on the merits, Plaintiffs’ Motion for a Preliminary Inj unction is DENIED AS M OOT. 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 th e 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 genui ne 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 Reco rd, ECF No. [29].

2 When a document is part of the administrativ e record, ECF No. [29], the Court will also cite to the administrative record (“AR”).3 to which it is contended there exists a genuine is sue 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 di sputed by Plaintiffs or are supporte d 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 ope rated two daily cruises between Miami and Bimini where passengers would disembark at th e foreign port of Bimini in the Bahamas. Id. ¶ 3, 6. On August 23, 2013, a representative of Plai ntiffs emailed CBP as king whether it could “confirm (in writing if possible) that if we [Plaintiffs] go for th e closed loop crui se to Bimini, without any movement of passengers off or on th e ship, an ID will be enough for CBP and they will not process the passengers?” Id. ¶ 8; AR 31. CBP responded th at 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 re turns to the same U.S. port of entry with no passengers or crew boarding or departing the vesse l, 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 “cruis es to nowhere” that departed Miami in the evening, sailed out into international waters, a nd returned to the port of Miami in the early morning hours. Id. ¶ 10. Plaintiffs used the same crew members 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 nowher e” that would begin and end at4 that port. Def.’s Stmt. ¶ 11. Plaintiffs subseque ntly informed CBP that they sought to operate a

“cruise to nowhere” out of Fort Lauderdale a nd 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 ineligib le 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 crew members on Plaintiffs’ evening “cruise to nowhere” who possessed D-1 visas were not in complia nce with Immigration and Nati onality 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 wh ich he arrived or some other vessel or aircraft. Compl., Ex. B; AR 13-14 (October 30, 2013 CBP le tter) (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 Stat es 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 calli ng as a crewmen [sic],” the crewmembers were not in compliance with the D-1 visa requirements. Id. The letter noted that “the CBP has5 consistently determined that crewmembers who po ssess D-1 visas are not elig ible 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 argumen ts. First, Plaintiffs argued that CBP agency decisions have long held that “cruises to nowhe re” are not coastwise trad e 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 (“Nove mber 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-gener ating cruise, with its ow n manifest of paying passengers. . . . It is a distinctvoyage of a type that consisten tly has been denied permission to operate in the Miami Field Office area of responsi bility without United States Citizen (USC) or6 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 immi gration requirements] are not applicable. Id. However, Mr. Foret stated that “immigration laws are indeed rele vant 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 internat ional cruise and are in comp liance to operate as crewmen

involved in international cruises to and from the Bahamas . . . th e D-1 crewman visa status does not allow for these crewmen to operate a sepa rate, revenue-generating cruise to nowhere

excursion” and reiterated the reasons se t 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 cr ewman] may be employed only in a crewman capacity

on the vessel or aircraft of arrival, or on a vessel or aircraftof the same transportation company, and may not be employed in connection with do mestic flights or movements of a vessel.” Id. Mr. Foret explained “that the crui se to nowhere is a domestic move ment 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 nowher e” did not need to comply with manifest and inspections requirements as the vessel and crew were not arriving in th e 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. Th is office will grant [Plaintiffs] a grace period until November 28, 2013, to comply with these requirements.

Id.7 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, Plai ntiffs filed suit in this Court against CBP seeking injunctive and declarator y relief under the Administrative Pr ocedures Act (“APA”). In their Complaint, Plaintiffs alleged that CBP ’s “newfound position [int erpreting INA Section 101(a)(15)(D)(1) and 8 C.F.R. § 214.2(d)(1)] is arbitrary, capricious, and c ontrary to law” and

was issued without an o pportunity for notice or comment in vi olation of the APA. Compl. ¶ 43- 44, 76. On December 13, 2013, Plaintiffs filed a Mo tion for Preliminary Injunction to Preserve the Status Quo Pending Judicial Re view 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 th e 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 a ddition, it came to the Court’s attenti on that the Defendant-Government had

not filed the administrative reco rd. The Court received the admi nistrative record on January 7,

2014. See Administrative Record, ECF No. [29]. On January 10, 2014, the Court issued an Order and Memorandum Opinion e xplaining the proper scope of th e administrative record and approving the record submitted by Defendants on January 7, 2014. See Jan. 10, 2014 Order & Mem. Op., ECF Nos. [34], [35]. Accordin gly, this matter is now ripe for review.8 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’ cl aims or, alternatively, mu st dismiss Plaintiff’s

case for failure to state a claim under the AP A. Second, Defendants argue that Plaintiffs’ complaint cannot survive because it is predicat ed 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 cour t” is subject to judici al review. 5 U.S.C. §

704. In Bennett v. Spear , 520 U.S. 154 (1997), the Supreme Cour t 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 “consumma tion” of the agency’s decision making process – it must not be of a merely tent ative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal cons equences will flow.” Id. at 177-78. In evaluating the finality of a pr e-enforcement agency decision, such as the one presently at issue, courts in the D.C. Circuit of ten evaluate three addition al 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 agen cy has “taken a ‘def initive’ legal position concerning its statutory authority”; (2) whether “the case presente d ‘a purely legal’ question of9 ‘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 clear ly 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 em ployees 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 comp liance order stating that plaintiffs had violated the Clean Water Act by discharging fill material on their propert y and directing plaintiffs to “immediately [] undertake activities to restore [t heir 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 determinedlegal obligations because “by reason of the order,” plaintiffs were required to “restore” th eir property and give the E.P.A access to their property even though the E.P.A. had not ta ken steps to actually enforce the order. 3 Id. See also

3 Defendants attempt to di stinguish 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 be cause the order itself exposed Plaintiffs to double penalties in a future enforcem ent proceeding, among other things. Sackett , 132 S.Ct. at 1371-2. While this fact was releva nt 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 or10 CSI Aviation Services , 637 F.3d at 412 (finding Department of Transportation le tter to Plaintiff “imposed an immediate and signifi cant burden” on plaintiff on the ba sis that it informed plaintiff that it had been acting as an una uthorized indirect air carrier in violation of the Federal Aviation Act, “warned” Plaintiff to “ceas e and desist from any further ac tivity that would result in it engaging in indirect air transportation,” and gave Plaintiff a 1 80-day grace period to comply); cf. Holistic Candlers and Consumers Ass’n v. Food & Drug Admin. , 664 F.3d 940, 9 44 (D.C. Cir. 2012) (agency letter did not determine legal obligati ons where agency letter “requested” that plaintiffs take prompt voluntary action, which, if not promptly ta ken, “may” lead to enforcement actions). Accordingly, the Court finds the N ovember 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 a ny 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 i ssue, 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 differenttypes 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).11 further administrative review att ached 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 Pl aintiffs 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 decisi on” to a higher official within CBP in Miami. In response, Plaintiffs sent a five-page appeal le tter with legal argument to the Miami Director of Field Operations who denied th e appeal in a November 2013 lett er and in no uncertain terms reiterated at length CBP’s position that Plaintiffs had violated th e law and were continuing to do

so. The November 2013 letter further ordered Plain tiffs to “cease” operations until they were in compliance with immigration law and gave Plainti ffs 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 C ourt 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” st atement 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 violati on 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 and12 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 fina l 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 init ial 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 wa rning letter and exemption order “gave no indication that [the agency’s legal position] wa s subject to further agency consideration or possible modification.” Id. Likewise here, CBP’s November 2013 letterdid 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) (f inding an agency letter to constitute final agency action wh ere “[n]othing in the letter i ndicate[d] that the [agency’s] statements and conclusions [wer e] tentative, open to furthe r consideration, or conditional on future agency action.”). Accordingl y, as the Court of Appeals did in CSI Aviation Services Inc. , this Court finds that CBP has give n 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, Defe ndants cite to 8 C.F.R. § 280.12, which states that w ithin 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 im posed,” and § 1280.1(b), giving the Board of Immigration Appeals “appellate au thority to review DHS decisions involving fines.” However, the facts relevant to CBP’s position are undisput ed 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 th e statutory term ‘cons umer product’ included plaintiff’s sprinkler heads, and thus gave the Co mmission 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 resolu tion of factual issues and th e creation of a record”). Furthermore, in this case, any review or a ppeal 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 de termined.”). Indeed, the further agency action available here is distinct from the type of ag ency action that courts have found to preclude a14 finding that the agency decision making process has been “consummated.” For example, in Holistic Candlers , the Court of Appeals for the D.C. Ci rcuit 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 unde rtaken 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 thatplaintiff’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 dete rmination. 324 F.3d at 731-32. Importantly, even though plaintiff in that case sought a declarat ory judgment that the Commission was acting outside its jurisdiction—a largely legal quest ion—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 th e agency could even make a definitive decision about the legality of th e plaintiffs’ actions . Here, CBP’s declarations of Plaintiffs unlawfulness are not conditioned on further agency action. Ha ving 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 th at any such enforcement process would change CBP’s legal position or require that an agency re cord be developed given the purely legal nature of CBP’s position. Defendants also argue that “other enforcemen t options are available under the statute,” such as “simply ordering the crew to be deta ined 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 vesse l 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 ta ke this enforcement acti on against Plaintiffs, it is unclear to the Court, and th e 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 de termining that Plaintiffs are employing illegal crewman, and that position is based on undisputed facts and a statutory in terpretation which will not be aided by any further ad ministrative deliberations. 4 The Supreme Court in Bennett “highlight[ed] the importan ce of avoiding disruption of the administrative decisionmaking process, bu t 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 Plai ntiffs 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 agen cy action “for which there is no adequate remedy in a court.” 5 U.S.C. § 704. However, in making their argumen t, 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]he n Congress enacted the APA to provide a general authorization for review of agency action in the dist rict courts, it did not intend that general grant of jurisdiction to duplicate the previously establishe d 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 alternativ e 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 statutor y 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 di sruption 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 compla int. Although styled in the

alternative as a motion to dismiss for failure to st ate a claim pursuant to Fe d. R. Civ. P. 12(b)(6), both parties rely on materials, notably affidavits, that are outsid e 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 j udgment, “if matters outside the pleadings are presented to, and

5 Defendants argue that the Court should dismi ss Plaintiffs’ action under either Fed. R. Civ. P 12(b)(6), for failure to state a claim under the AP A, 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 th e issue of whether an agency action is final under the APA is jurisdictional. Indee d, 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 judi cial 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 C ourt 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 confiden ce that whether an agen cy 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 propos ition 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 co mment requirements and is not arbitrary and capricious.17 not excluded by the court.” Plaintiffs do not conte nd that there are any facts in material dispute

and do not contest that Defenda nts’ Motion should not be trea ted 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 dis pute as to any material fact and the movant is entitled to judgment as a matter of law.” Howeve r, “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 th e administrative record . . . Summary judgment is [ ] the mechanism for deciding whether as a matter of law the agency actio n is supported by the

administrative record and is otherwise consis tent 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, capr icious, an abuse of discretion, or otherwise not in accordance with law” or “in ex cess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or “without ob servance of procedure required by law.” 5 U.S.C. §§ 706( 2)(A), (C), (D). An agency's decision may be arbitrary or18 capricious if any of the following apply: (i) its explanation runs counter to the evidence before the agency or is so implausible th at 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 agen cy relied on factors which Congress did not intend the agen cy to consider; or (iv) the decision otherwise const itutes 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 “manif estly 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] inqui ry 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 unr easonably interpreted is close analytically to the issue whether [sic] an agency's ac tions 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 the19 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 rationa l 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 statemen t 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). S ubstantive or legislativ e 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 ex isting law or policy,” Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984) (quotations omitted). Interpretative rules, gene ral 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 Plaint iffs’ “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 rulemaki ng requirements and was arbitrary, capricious, and contrary to the law. Compl. ¶ ¶ 43-44, 76. As evidence that CBP’s November 2013 determination represented a m odification of CBP’s “longstanding interpretation and practice” regarding “cruises to nowhere,” Plaintiffs point to (1) United St ates Customs rulings interpreting the PVSA, and (2) CBP general practices and specifi c assurances suggesting that Plaintiffs could operate their “cruise to nowhere” with a foreig n crew. Defendants respond that the November 2013 determination “simply refined th e contours of an al ready existing legal no rm set forth in the [INA], [Immigration and Naturalization Servi ce] 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 immi gration law. Def.’s Mot. at 22, 27. The Court begins by considering the evidence presented by Plaintiffs before tu rning to Defendants’ evidence and determining whether CBP’s Novemb er 2013 determination violated notice and comment requirements or was arbitrary, cap ricious, 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 wh ich Plaintiffs rely only answer the specific21 question of whether a “foreign-flag ged vessel” can operate a “cruise to nowhere” in light of the PVSA’s prohibition of foreign ve ssels in coastwise trade. None of the rulings mention, much less opine, on the question of fo reign crewmembers and their au thorization 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 conc ede as much in their pleadings: “it is certainly true that the CBP prior rulings . . . do not opine specifical ly 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] vess els, which are commonly understood to have a crew that is primarily if not ex clusively foreign” the rulings s hould 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, Plaint iffs 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’ argumen t, which is based on an alleged “common understanding,” is grossly insufficient to show that CBP has had a “l ongstanding” policy of allowing “cruises to nowhere” to be operated by foreign crews. 6 At most, one could infer from

6 To further support their reas oning, Plaintiffs point to remarks made by Congressman Gerry Studds in relation to a bill introduced in the 103 rd Congress that Plai ntiffs 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 “cru ises 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 requirem ents 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 fe deral 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 boardthe Southern Elegance to conduc t “cruises to nowhere” must be done in compliance with the im migration laws of the United Stat es.”). As Plaintiffs cannot even point to a U.S. Customs ruling stating th at “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 ar gue that CBP’s November 2013 determination applying federal immigration law to Plaintiffs’ “cruise to nowhe re” 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 Cour t does not find these citations persuasive. These remarks occurr ed in the context of legislation that C ongress 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 be fore 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 Nove mber 2013 letter represented a significant change in CBP’s policy regarding foreign crewme n on “cruises to nowhere,” Plaintiffs also suggest that throughout the busines s planning process, Plaintiffs “relied on CBP’s approval and acquiescence in structuring . . . its operati ons” to include “cruises to nowhere” manned by foreign crewmembers. Pl.’s Opp’n. at 6. Plai ntiffs further state th at “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 hol ders.” Lopez Affidavit, ECF No. [22], at ¶ 10. Essen tially, Plaintiffs appear to be argui ng 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 rep eatedly rejected such arguments admonishing for many years that “equitable es toppel will not lie against the Government as it lies against private litigants.” OPM v. Richmond, 496 U.S. 414, 419 (1990) (citi ng 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, that24 some type of ‘affirmative misconduct’ might give rise to estoppel against the Government.”). Plaintiffs cannot reach this high bar because th ey offer no evidence that they requested prior permission to use a crew comprised of crewmemb ers holding D-1 visas—oreven mentioned the status of the crew—and that CBP approved or ac quiesced to that crew status. At most, the correspondence included in the admi nistrative record show s 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 c onfirmation 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 que stion that CBP knew that our cr ew was foreign because the CBP regularly conducted (and continue s to conduct) inspections of th e 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 CB P 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-coastwis e 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 Gregor y Karan states that he was general manager of another cruise vessel that ope rated “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 bald25 assertion based in part on hear say and for which he offers no s upport. Furthermore, Mr. Karan’s affidavit offers no indication that his previous crui se 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 su ch operations came to the agency’s attention, the Court finds Mr. Karan’s assertion unpersuasi ve in establishing CBP policy or practice. Moreover, “unless Congress has i ndicated otherwise,” agencies charged with enforcing the law retain discretion not to pros ecute 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 pr actice by CBP, Plaintiffs have failed to show

that the CBP’s November 2013 lette r significantly revi sed its legal interpretation and thus required an opportunity fo r 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 prio r 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 interp retation of the INA. In its November 2013 determination, CBP notes th at 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 manife st of paying passengers.” Id. at 22-23. CBP e xplains that the26 crewmen on this “distinct voyage” fail to satisf y the requirements of INA § 101(a)(15)(D)(i)— which they must satisfy in orde r to be bona fide D-1 visa hol ders—because “the crewmen do not depart the United States and do not land tempor arily 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 C ounsel 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 Ju stice 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 th at “foreign crewmember s cannot rely on cruises

to nowhere alone to qualify for D-1 status.” 7 Pl.’s Opp’n. at 25. Conseq uently, the Court fails to

see how the CBP’s November 2013 determination th at 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 modi fication 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. Howeve r, Plaintiffs acknowledge that the M/V Merchant Victor opinion held that a vessel was allowed to opera te 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 coastwis e laws with the agency’s interp retation of dis tinct immigration laws which have their own distinct purposes. Acco rdingly, the Court finds that Plaintiffs have failed to present evidence that CBP has done an ything 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 interp retation, and later significantly revises that interp retation, 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 wh ere 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 nowhe re” 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 properl y 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 ever y 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 separa te “cruise to nowhere”28 operation onto the daily cruise to Bimini. Pl aintiffs, however, offer no legal support for this analysis of their “cruise to nowhere.” Plainti ffs only argue that unlike the “cruise to nowhere”

crew in M/V Southern Elegance who could not show th ey intended to remain in the United States only temporarily because they lived in apartmen ts on shore and only departed to a foreign port once a month solely for the purpose of complyin g 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 fo reign 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 th e statute is ambiguous, under Chevron, the Court must defer to the agency interpretation unless it is “man ifestly 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” a nd “depart,” in no way precludes an interpretation of the landing and departure as applying to each distinct voyage of the vessel. Moreover, Plaintiffs’ interpretation w ould effectively allow alien crewmen to work in the United States without proper authorization so long as the ve ssel they operate d occasionally departed on a legitimate fore ign 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 arbitr ary, 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 N ovember 2013 determination was a final agency action, but GRANTED on the basis that the Novemb er 2013 determination did not violate notice and comment rulemaking procedures and was not arbi trary, capricious, or contrary to the law. Accordingly, Plaintiffs’ Motion for a Preliminary Injunction is DE NIED AS MOOT. An appropriate Order accompanies this Memorandum Opinion.

____/s/________________________ COLLEEN KOLLAR-KOTELLY United States District Judge