Fisheries; Foreign Commerce; 46 U.S.C. § 12108(a)

HQ 114704 August 17, 1999 VES-7-05-RR:IT:EC 114704 GEV CATEGORY: Carriers D.A. Hoffman Fourteenth Coast Guard District Prince Kalanianaole Federal Building 300 Ala Moana Blvd. Honolulu, Hawaii 96850-4982 RE: Fisheries; Foreign Commerce; 46 U.S.C. § 12108(a) Dear Mr. Hoffman: This is in response to your letter dated May 6, 1999, requesting a ruling regarding the transportation of fish. Our ruling on this matter is set forth below. FACTS: The U.S. Coast Guard has recently become aware of several U.S. documented vessels that are engaged in fishing beyond the U.S. Exclusive Economic Zone (“EEZ”), and are transporting their catches to Honolulu and American Samoa with the intent to further transport their catches to a foreign country (not necessarily by the same vessel). The vessels are not endorsed under 46 U.S.C. § 12108 to engage in the fisheries. ISSUE: Whether fish caught by U.S.-flag, non-fisheries endorsed vessels, outside of the EEZ and transported to a U.S. port for subsequent transportation to a foreign port (not necessarily by the same vessel) are being transported “in foreign commerce” for purposes of 46 U.S.C. § 12101(a)(1) thereby rendering inapplicable the requirement for such vessels to be endorsed for the fisheries pursuant to 46 U.S.C. § 12108.  - 2 - LAW AND ANALYSIS: The Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987 (the "Act", Pub. L. 100-239; 101 Stat. 1778) amended 46 U.S.C. § 12101(6) by changing the definition of "fisheries" set forth therein to include the "processing, storing, and transporting (except in foreign commerce)" of fish and related fishery resources in United States navigable waters and the United States EEZ, as well as the catching-related activities provided for in the former definition. Accordingly, the definition of fisheries, now set forth in 46 U.S.C. § 12101(a), reads 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 in the exclusive economic zone. (Emphasis added) The U.S. EEZ is defined in Presidential Proclamation 5030 of March 10, 1983 (48 FR 10605), as extending outward for 200 nautical miles from the baseline from which the territorial sea is measured. The term “United States” is defined in 46 U.S.C. § 2101(44) as, “...the States of the United States, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Northern Mariana Islands, and any other territory or possession of the United States.” Title 46, United States Code, § 12108(b) limits the employment in the fisheries to a vessel issued a certificate of documentation with a fishery endorsement, "subject to the laws of the United States regulating the fisheries" (see e.g., the Magnuson Fishery Conservation and Management Act of 1976 (MFCMA), 16 U.S.C. 1801 et seq., administered by the Department of Commerce, NOAA, National Marine Fisheries Service (NMFS) under which a foreign vessel may obtain a permit from NMFS to engage in fishing in the EEZ). Under 46 U.S.C. § 12108(a), only a vessel eligible for documentation (i.e., over 5 net tons and owned by a citizen) which was built in the United States may be endorsed for the fisheries. Pursuant to 46 U.S.C. § 12108(b), subject to the laws of the United States regulating the fisheries, only a vessel so endorsed may engage in the fisheries. Notwithstanding any authorization of foreign-flag vessels to engage in fishing activities in the EEZ, the provision relating to the landing of fish or fish products in the United States in the Nicholson Act (the Act of September 2, 1950, as amended, Ch. 842, 64 Stat. 577; 46 U.S.C. App. § 251(a)), provides that no foreign-flag vessel shall land in a port of the United States its catch of fish taken on board the vessel on the high seas, or fish products processed therefrom, or any fish or fish products taken on board the vessel on the high seas from a vessel engaged in fishing operations or in the processing of fish or fish products. Since this prohibition is directed against foreign-flag vessels, a U.S.-flag, foreign-built vessel (which usually could not be  - 3 - documented for the coastwise or fisheries trade and therefore could not engage in the fisheries within the EEZ) could land in the United States fish it had caught or received on the high seas without violating the Nicholson Act. We note that pursuant to Customs Marine Circular No. 24, dated June 12, 1953, the Nicholson Act is inapplicable to Guam or American Samoa. However, notwithstanding the lack of a Nicholson Act violation, the above-referenced U.S.-flag vessel would nonetheless be transporting fish in the EEZ. (Emphasis added) Pursuant to 46 U.S.C. § 12101(a), such transportation constitutes an engagement in the fisheries unless it is “in foreign commerce.” As discussed above, an engagement in the fisheries necessitates a fisheries endorsement pursuant to 46 U.S.C. § 12108(a) absent obtaining the aforementioned NMFS permit. Further in regard to the landing of fish, additional authority in support of the position that a U.S.-flag vessel transporting fish in the EEZ (not in foreign commerce) and landing them at a U.S. port must be fisheries endorsed is found at 46 CFR § 67.21(a) which provides, in pertinent part, that “[a] fishery endorsement entitles a vessel to land its catch, wherever caught, in the United States.” With respect to the U.S.-flag vessels under consideration, we note the following. Each such vessel is a “vessel of the United States” as defined in 46 U.S.C. § 2101(46). Furthermore, since the country of origin of fish caught on the high seas is that of the catching vessel, the country of origin of the fish caught by these particular vessels is the United States. (See Proctor & Gamble Mfg. v. United States, 60 Treas. Dec. 356, T.D. 45099 (1931), affirmed CCPA 415, C.A.D. 3488, cert. denied, 287 U.S. 629, 53 S.Ct. 82, 77 L.Ed. 546 (1932)). In regard to the term “foreign commerce”, it is defined as, “Trade between persons in the United States and those of a foreign country.” Black’s Law Dictionary, Fifth Edition, pp. 582, 583 (1979) (See also 46 U.S.C. App. § 1244(a), and Henderson v. Wickham, 92 U.S. 259, 270, 23, L.Ed. 543 (1876), citing U.S. v. Holliday, 3 Wall. 417, 18 L.Ed. 185). Accordingly, in view of the fact that the fish caught by the vessels in question are destined for foreign consumption, it is readily apparent that these vessels are transporting fish “in foreign commerce” regardless of whether such fish are subsequently transported foreign in a different vessel. Consequently, the requirement that these vessels be endorsed for the fisheries pursuant to 46 U.S.C. § 12108 is obviated. HOLDING: Fish caught by U.S.-flag, non-fisheries endorsed vessels outside of the EEZ and transported to a U.S. port for subsequent transportation to a foreign port (not necessarily by the  - 4 - same vessel) are being transported “in foreign commerce” for purposes of 46 U.S.C. § 12101(a)(1) thereby rendering inapplicable the requirement for such vessels to be endorsed for the fisheries pursuant to 46 U.S.C. § 12108. Sincerely, Jerry Laderberg Chief Entry Procedures and Carriers Branch