Fisheries; Coastwise Transportation; 46 U.S.C. §§ 108, 12113, 55102

HQ H105735 May 27, 2010 VES-3-02-OT:RR:BSTC:CCI H105735 WRB CATEGORY: Carriers Leonard W. Langer, Esq. Tompkins, Clough, Hirshon & Langer, P.A. Three Canal Plaza Post Office Box 15060 Portland, Maine 041 12-50 RE: Fisheries; Coastwise Transportation; 46 U.S.C. §§ 108, 12113, 55102 Dear Mr. Langer: This letter is in response to your correspondence dated May 12, 2010, requesting a ruling on whether the use of a foreign-flag vessel to treat farm-raised fish for parasites violates the Jones Act, 46 U.S.C. § 55102; or constitutes and engagement in the fisheries pursuant to 46 U.S.C. § 108. Our ruling on your request follows. FACTS Cooke Aquaculture, Inc., is a Canadian company headquartered in Blacks Harbour, New Brunswick, Canada (hereinafter “Cooke”). A number of Cooke's United States-based affliliates and subsidiaries own and operate salmon raising pens located off the coast of Maine. Cooke is currently considering chartering the M/V RONJA CARRIER, a Norwegian-flagged vessel, to treat the salmon in the pens for sea lice. The M/V RONJA CARRIER is a 133.2 foot (40.6 M) steel hulled vessel built in Canada in 2003. Although she currently carries the Norwegian flag, it is anticipated that she will be re-flagged as a Canadian vessel prior to her initial entry into the United States. The M/V RONJA CARRIER will carry a Canadian crew of 4-5, and possibly one or two Norwegians with expertise in the operation of the vessel's pumping equipment. The M/V RONJA CARRIER is equipped to remove live fish from Cooke's pens located along the coast of the State of Maine, treat them for sea lice, and then return them to the pens. The pens in the United States, which would be serviced by the M/V RONJA CARRIER, are located off the coast of Hancock County and Washington County in the State of Maine. The pens are located in the territorial waters of the United States pursuant to permits issued by the State of Maine. It is anticipated that the vessel would enter the United States at Eastport, Maine, then proceed directly to the various fish pens, undertake the necessary medication of the salmon in the pens, and then return to Canadian waters. The medication would be provided to the vessel at the various pen sites, having been transported from shore to the pen sites in a coastwise-qualified vessel. To remove the fish from the pens, the M/V RONJA CARRIER would pull alongside a salmon pen, lower two 14-inch intake hoses into the pen and then start pumping fish into the vessel's tanks. Recirculation pumps in the tanks would be operated at all times to keep water flows constant, and oxygen levels would be continuously monitored to assure 80 - 100% saturation until the fish were discharged back into the pens. Total time for the salmon onboard the vessel would vary from 2 hours to 2 hours and 40 minutes, depending on the stress level of the fish. Each treatment would last no more than 40 minutes. The balance of the time would be used to de-stress the fish once brought onboard, and then to prepare them to be returned to the same pen from which they were originally taken. The vessel would remain stationary during the process, and at no time would the vessel carry or transport fish from one pen to another. The medication would be discharged with the fish back into the pens located in Maine waters pursuant to the Maine Department of Environmental Protection (“MDEP”) discharge permit. ISSUES Whether the proposed operation constitutes an engagement in coastwise trade for purposes of 46 U.S.C. § 55102? Whether the proposed use of a foreign-flag vessel to treat farm-raised fish for parasites constitutes an engagement in the fisheries within the meaning of 46 U.S.C. § 108? LAW AND ANALYSIS: COASTWISE TRANSPORTATION: You state that the EXCIS medication would be provided to the vessel at the various pen sites, having been transported from shore to the pen sites in a coastwise-qualified vessel. The Jones Act, former 46 U.S.C. App. § 883 recodified as 46 U.S.C. § 55102, pursuant to P.L. 109-304 (October 6, 2006), provides, in pertinent part, that “a vessel may not provide any part of the transportation of merchandise by water, or by land and water, between points in the United States to which the coastwise laws apply, either directly or via a foreign port” unless the vessel was built in and documented under the laws of the United States and owned by persons who are citizens of the United States. See also 19 C.F.R. §§ 4.80, 4.80b. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise-qualified.” The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline. Pursuant to section 4.80(a)(2), Customs and Border Protection (CBP) Regulations (19 CFR 4.80(a)(2)), no foreign-built vessel, regardless of its tonnage, may engage in the coastwise trade. Section 4.80b(a), CBP Regulations (19 CFR 4.80b(a)) provides, in pertinent part: A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise laden at a point embraced within the coastwise laws (“coastwise point”) is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise. Accordingly, the EXCIS medication would be considered “merchandise.” However, its transportation from shore to the fish pens (both coastwise points) aboard a coastwise-qualified vessel, and not aboard the M/V RONJA CARRIER, would not implicate the coastwise laws. In summary, we find that the engagement in the proposed activity will not result in a violation of 46 U.S.C. § 55102. FISHERIES: 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 Exclusive Economic Zone (EEZ), as well as the catching-related activities provided for in the former definition. Accordingly, the definition of fisheries, now recodified pursuant to Public Law 109-304, enacted October 6, 2006, set forth in 46 U.S.C § 108, 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. We agree that there appear to be no statutory definitions of the pertinent statutory terms, including “catching,” “processing,” or “taking.” Absent statutory definitions, we are compelled to interpret the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987 under the plain meaning rule of statutory interpretation, which dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. Black’s Law Dictionary defines “catchings” as, “things caught (e.g. fish) and in the possession, custody, power, and dominion of the party, with a present capacity to use them for his own purpose.” Blacks’s Law Dictionary, 6th Ed. (1990), p.219. While the word “take” is susceptible of many shades of meaning in the law with the precise meaning depending on the subject with respect to which it used, Black’s definition, which is most applicable to the given facts is, “To lay hold of; to gain or receive into possession; to seize,….” Id., p. 1453. Similarly, Black’s defines the word “process” as, “A series of actions, motions, or occurrences; progressive act or transaction; continuous operation; method, mode or operation, whereby a result or effect is produced; normal or actual course or procedure; regular proceeding, as, the process of vegetation or decomposition; a chemical process; processes of nature.” Id., p. 1205. The definition of “process” which appears most applicable to the facts as presented is a “method, mode or operation, whereby a result or effect is produced.” However, we disagree with your characterizations. Regarding “catching,” you state, “(C)ommon definitions of ‘catch’, however, make it clear that the term involves a capture or seizure, especially after a chase. This is consistent with the generally accepted commercial fishing process where a vessel either drags a net through the water to ‘catch’ fish, or lays nets or hooks in long lines in an attempt to ‘catch’ the fish.” Referring to the definition of Blacks’s Law Dictionary, it is apparent that the salmon are, in effect” “caught” when aboard the M/V RONJA CARRIER, as they are in the possession, custody, power, and dominion of the vessel, with a present capacity to use them for its own purpose. The fact that the purpose for which they are onboard is for medical treatment and subsequent release makes them no less “caught.” Similarly, you adapt the definition of “processing” from that of a “fish processing vessel” in 46 USC § 2101 (11b), defined as a vessel which “commercially prepares fish or fish products other than by gutting, decapitating, gilling, skinning, shucking, icing, freezing, or brine chilling.” You further state, “The suggestion is that the fish are being changed in some way in preparation for marketing them either at the wholesale or retail level. It is also suggested that the fish are either already dead, or will be shortly.” However, applying the ordinary meaning of the language as found in Black’s, “A series of actions, motions, or occurrences; progressive act or transaction; continuous operation; method, mode or operation, whereby a result or effect is produced;” it is clear that the salmon would, in fact, be processed aboard the vessel. In this case, the result or effect produced is the treatment of the fish with the EXCIS medication. Therefore, it can be readily seen that the vessel is “processing” the fish. Lastly, we disagree with your position that the definition of “taking” must suggest some finality to the manner in which fish are possessed. Black’s definition, which is most applicable to the given facts is, “To lay hold of; to gain or receive into possession; to seize,….” This definition contains no such requirement of temporal finality. Rather, it is clear from the facts as you have presented them that the salmon are clearly received into the possession of the vessel. The fact that the “taking” is for a limited period of time is of less significance than that the fish are received into the possession of the vessel. Accordingly, the vessel would be “taking” the fish. Your attention is directed to our ruling HQ 114460, dated September 3, 1998. That matter contemplated the use of a Canadian-flagged “well boat” to grade salmon held in fish pens along the Maine coast. The “well boat” was equipped with technology to handle the extraction of the salmon from various cages owned by the fish farms. Salmon were to be pumped into the well onboard, by a pump, or brail. Once contained in the onboard well, the salmon were to be fed into a large grader, distributed to a table and then into a piece of equipment which graded the fish by size. Salmon would then have been distributed into various holds with other fish which matched in size and then returned back to appropriate cages on site. In short, the vessel removed fish from farm-grown salmon pens, held them on board the vessel for a short period of time, and then returned them to the pens. In ruling HQ 114460, we determined that the proposed use of the Canadian well boat constituted an engagement in the fisheries, including catching or taking fish. We find your reliance upon our prior ruling in HQ 111615 inapposite. In that matter, we held that a foreign-built, stationary, floating platform operating exclusively as a net cleaning and repair facility in connection with a fisheries operation in U.S. waters was not engaged in the fisheries as defined in 46 U.S.C. § 12101(a) (now 46 U.S.C. § 108) and therefore was not in violation of 46 U.S.C. § 12108 (now 46 U.S.C. § 12113). While that matter did involve the use of a Canadian-built vessel to service salmon pens on the Maine coast, it involved a non-self-propelled platform, moored in a stationary position, for the purpose of serving as a net servicing platform. In HQ 111615, the vessel was undocumented, and equipped with a “Netmaster” heavy duty net washer, for the purpose of providing space to service nets. We are of the opinion that the proposed use of the M/V RONJA CARRIER in this matter is materially different. While the non-self-propelled platform in HQ 111615 served as a handling and maintenance facilty for nets, the proposed use of the M/V RONJA CARRIER is to take the fish themselves from the water; lade them onboard, treat them, and return them to the water, similar to the facts of HQ 114460, supra. Title 46, United States Code, section 12113 limits the employment in the fisheries to a vessel issued a certificate of documentation with a fishery endorsement. Under 46 U.S.C. § 12113, only a vessel eligible for documentation (i.e., at least 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. § 12113 only a vessel so endorsed may engage in the fisheries. It is apparent that the contemplated use of the subject vessel would render it to be engaged in the fisheries within the meaning of 46 U.S.C. 108. As it is foreign-built, regardless of its tonnage, it is not eligible for documentation for the fisheries under 46 U.S.C. § 12113. HOLDINGS The proposed operation described above does not constitute an engagement in the coastwise trade for purposes of 46 U.S.C. § 55102. The use of the M/V RONJA CARRIER as proposed constitutes an engagement in the fisheries within the meaning of 46 U.S.C. § 108, for which it must possess a certificate of documentation endorsed pursuant to 46 U.S.C. § 12113. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch