Applicability of Public Law 100-239, amending the definition of "fisheries" in 46 U.S.C. 12101, to foreign-built, foreign-flag fisheries support vessels

HQ 109391 March 17, 1988 VES-7-01 CO:R:P:C 109391 PH CATEGORY: Carriers Mr. Peter D. Strong President Coastal Transportation, Inc. Seattle, Washington 98107 RE: Applicability of Public Law 100-239, amending the definition of "fisheries" in 46 U.S.C. 12101, to foreign-built, foreign-flag fisheries support vessels Dear Mr. Strong: This in response to your letter of February 26, 1988, in which you request a ruling on the applicability of chapter 121 of title 46 of the United States Code, as recently amended by Public Law 100-239, to the use of foreign-built, foreign-flag fisheries support vessels operating in the United States exclusive economic zone off of Alaska. Your letter may raise questions concerning the documentation and inspection of vessels and the MFCMA. These subjects are within the jurisdiction of the United States Coast Guard and the National Marine Fisheries Service, respectively. If you wish to question either of these offices, the mailing addresses are: Mr. Thomas Willis Chief, Vessel Documentation U.S. Coast Guard (GMVI-6/13) 2100 Second Street, SW. (Room 1312) Washington, D.C. 20593-0001 Department of Commerce NOAA/National Marine Fisheries Service Fees, Permits and Regulations Division F/M12 Washington, D.C. 20235 - 2 - FACTS: You state that there are currently operating in Alaska a number of foreign-built, foreign-flag fisheries support vessels. These vessels depart Dutch Harbor, Alaska, with United States origin cargo into the exclusive economic zone. They discharge their cargo to foreign-built, foreign-flag fish processing ves- sels and United States-built, United States-flag fishing vessels. The vessels then return to Dutch Harbor and repeat this opera- tion. You request a ruling on the effect of the recently enacted Public Law 100-239 on these operations. ISSUE: In view of the recently enacted Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987, Public Law 100-239, may foreign-built, foreign-flag fisheries support vessels be used to transport cargo from a United States port to fish processing vessels and fishing vessels in the United States exclusive economic zone? LAW AND ANALYSIS: Under 46 U.S.C. 12106(b): Subject to the laws of the United States regulating the fisheries, only a vessel for which a fishery license or an appropriately endorsed registry is issued may be employed in the fisheries. A fishery license or an appropriately endorsed registry may, under paragraph (a) of 46 U.S.C. 12106, be issued for a vessel that-- (1) is eligible for documentation [i.e., meets the tonnage and United States ownership requirements in 46 U.S.C. 12102]; and (2)(A) was built in the United States .... This paragraph of section 12106 also provides for the issuance of a fishery license or an appropriately endorsed registry for a vessel in unusual circumstances such as when the vessel was cap- tured in war by citizens of the United States and lawfully con- demned as prize. Public Law 100-239 added to paragraph (a) of section 12106 the requirement that, if rebuilt, a vessel be re- built in the United States to qualify for issuance of a fishery license or an appropriately endorsed registry. - 3 - "Fisheries", when used in chapter 121 of title 46, is defined in section 12101, as amended by Public Law 100-239, as follows: "fisheries" includes processing, storing, transporting (except in foreign commerce), planting, cultivating, catching, taking, or harvesting fish, shellfish, marine animals, pearls, shells, or marine vegetation in the navigable waters of the United States or the exclusive economic zone. Public Law 100-239 changed the former definition of "fisheries," in 46 U.S.C. 12101(6), by the addition of the words "processing, storing, transporting (except in foreign commerce)." Even as amended by Public Law 100-239, "fisheries" includes only the processing, storing, transporting (except in foreign commerce), etc., of fish or similar marine life. "Fisheries" does not include the transportation of supplies to fishing ves- sels or fish processing vessels. Since such transportation is not included in "fisheries," the build and ownership restrictions applicable to vessels issued fishery licenses or appropriately endorsed registries would not be applicable to vessels used for such transportation. HOLDING: Foreign-built, foreign-flag fisheries support vessels may be used to transport cargo from a United States port to fish processing vessels and fishing vessels in the United States exclusive economic zone outside territorial waters because the recently amended definition of "fisheries" in 46 U.S.C. 12101 in- cludes only the processing, storing, transporting (except in for- eign commerce), planting, cultivating, catching, taking, or har- vesting of fish and other marine life listed in that definition in the navigable waters of the United States or in the exclusive economic zone (i.e., "fisheries" does not include the transport- ing, etc., of cargo other than fish and other marine life listed in the definition). Sincerely, Edward T. Rosse Acting Director, Regulatory Procedures and Penalties Division