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

HQ H153958 April 6, 2011 VES-3-02-OT:RR:BSTC:CCI H153958 WRB CATEGORY: Carriers Mr. Kevin Lovejoy 206 Cross Roads Columbia, ME 04623 RE: Fisheries; Coastwise Transportation; 46 U.S.C. §§ 108, 12113, 55102 Dear Mr. Lovejoy: This letter is in response to your correspondence dated March 14, 2011, requesting a ruling on whether the use of a foreign-built vessel to transport fish from a catching vessel to the dock violates the Jones Act, 46 U.S.C. § 55102. Your request was forwarded to this office from the U.S. Customs and Border Protection Port of Lubec, Maine, for review. Our ruling is set forth below. FACTS: You inquire about purchasing a Canadian-built vessel for use as a fish carrier. You intend to use this vessel as a carrier in the herring fishery, transporting the herring from the catching vessel at sea to the dock to unload and sell. You state that you will catch the fish in the territorial waters of the State of Maine and Federal waters. The vessel would not be used as the catching vessel, but would rather be used essentially as a “truck on water” moving the caught fish from one point in United States waters to shore. The vessel will measure less than 5 net tons. ISSUE: Whether the proposed use of a foreign-built vessel to transport fish caught in state and Federal territorial waters to shore constitutes an engagement in coastwise trade for purposes of 46 U.S.C. § 55102? LAW AND ANALYSIS: 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.” You state that you intend to use the subject vessel to transport fish caught by a different vessel. Your letter of March 14, 2011 states that the fish will be caught “in Federal & State waters.” By your use of the term “Federal waters,” we presume you to mean the Exclusive Economic Zone (EEZ). We also presume that the point of unlading is a coastwise point for this purpose. 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 46 U.S.C. § 12102 and 4.80(a)(2), Customs and Border Protection (CBP) Regulations (19 C.F.R. 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 C.F.R. 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. Pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” Accordingly, the caught fish sought to be transported ashore in the subject vessel would be considered “merchandise.” Clearly, the proposed use of the foreign-built vessel to transport herring from the catching vessel to shore constitutes a use as a fish tender vessel. In HQ 116268, dated July 14, 2004, and HQ 116295, dated, September 20, 2004, we examined the application of the coastwise laws to fish tender vessels. In that matter, a Maine company operated two Canadian-built, state-registered vessels, each of which was under 5 net tons, in the lobster industry. The company purchased, laded and transported lobsters on these vessels from outlying Maine islands to the port of Rockland, Maine, where the lobsters were landed. We determined that the lading and transportation of its lobsters on foreign-built vessels constituted the unlawful coastwise transportation of merchandise which is prohibited to such vessels due to their foreign construction. 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 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. The 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. Under the Anti-Reflagging Act, supra, in harmony with the definition of “fishing vessel” in the Fishery Conservation and Management Act, 16 U.S.C. 1802(17)(B), the term “fisheries” was expanded beyond solely catching-related activities to include the processing, storing and transporting (except in foreign commerce) of fish and related fishery resources in the 3-mile territorial waters of the United States and in the EEZ. The primary purpose of this legislation was to “harmonize” fisheries and maritime law, by imposing similar requirements on the documentation and construction of fish processing and fish tender vessels operating in the fisheries trade “as are imposed on vessels engaged in coastwise transportation under the shipping laws” (See H. Rep. No. 100-423, reprinted in, 1987 U.S. Code Cong. & Admin. News 3245; and id., at 3248-3249). In harmonizing fisheries law with the prevailing requirements concerning coastwise transportation under the shipping laws, it is clear that there was no legislative intent to undermine or interfere with the continued application of the coastwise laws in this regard. The legislative history of the Anti-Reflagging Act expressly confirmed this intent, saying, “(f)urther, the Committee does not intend, by inclusion of fish tender operations within the definition of fisheries, to eliminate any requirements that are applicable under the coastwise laws to fish tender vessels engaged in the coastwise trade.” Id., at 3254 (emphasis supplied). Accordingly, even if the vessel were to be considered employed in the fisheries, the vessel would still be prohibited, in the course of such employment, from performing any “coastwise” transportation under 46 U.S.C. § 55102 (and see C.S.D. 82-144, 16 Cust. Bull. 966, 969 (1982) (should a foreign-built fish processing vessel engaged in processing crab transport the crab from a catching vessel in United States territorial waters to a United States port, this would violate the coastwise laws, notwithstanding that fish processing is “fishing.”) Consequently, absent the enactment of a private bill passed by Congress that would exempt the subject vessel from the provisions of 46 U.S.C. § 55102, the use of the subject vessel as discussed in the FACTS section supra is in violation of the coastwise laws. HOLDING: The use of the subject vessel as proposed constitutes an unlawful coastwise transportation of merchandise under 46 U.S.C. § 55102. Sincerely, George Frederick McCray Supervisory Attorney-Advisor/Chief Cargo Security, Carriers and Immigration Branch Office of International Trade, Regulations & Rulings U.S. Customs and Border Protection