Fisheries; Coastwise Transportation; 46 U.S.C. §§ 108, 12113, 55102, 55114

HQ H213537 April 20, 2012 VES-3-02-OT:RR:BSTC:CCI H213537 WRB CATEGORY: Carriers Mr. Kevin Lovejoy 206 Cross Roads Columbia, ME 04623 RE: Fisheries; Coastwise Transportation; 46 U.S.C. §§ 108, 12113, 55102, 55114 Dear Mr. Lovejoy: This letter is in response to your correspondence dated April 11, 2012, requesting a ruling regarding the use of a foreign-built, United States-registered vessel in coastal waters and the Exclusive Economic Zone (“EEZ”). Our ruling is set forth below. FACTS: You inquire about using a foreign-built vessel of less than five net tons for use as a fishing vessel. You state that you desire to use a Canadian-built, U.S. registered vessel of less than 5 net tons to fish and land its catch in either the coastwise waters or the EEZ, as well as to transport fish caught by another vessel in non-coastwise waters to the shore from a point more than three miles offshore. ISSUES: Whether the proposed use of a foreign-built vessel of less than 5 net tons to fish and land its catch in either the U.S. territorial sea or the EEZ constitutes a permissible engagement in the fisheries pursuant to 46 U.S.C. § 12113? Whether the proposed use of a foreign-built vessel of less than 5 net tons to transport fish caught by another vessel in the EEZ to the shore from a point more than three miles offshore constitutes an engagement in coastwise trade for purposes of 46 U.S.C. § 55102? LAW AND ANALYSIS: Fisheries: The Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987 (“the Act,” Pub. L. 100-239; 101 Stat. 1778) amended the definition of “fisheries” 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 currently 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. Title 46, United States Code, § 12113(b)(1) (46 U.S.C. § 12113(b)(1)) 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., 16 U.S.C. § 1801, et seq., under which a foreign vessel may obtain a permit from the National Marine Fisheries Service to engage in fishing in the EEZ). Under 46 U.S.C. § 12113(a), 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(b), only a vessel so endorsed may engage in the fisheries. With regard to vessels of less than 5 net tons, CBP has long held that such vessels, if owned by United States citizens or by resident aliens and numbered pursuant to 46 U.S.C. § 12301 et seq., may engage in the fisheries even if foreign-built. See C.S.D. 89-85, 23 Cust. B. & Dec., No. 35, 10, 12 (1989), citing T.D. 56382(6), 100 Treas. Dec. 143, 145 (1965). Legislative support for this provision may be found in 16 U.S.C. 1802(48)(B)(2007). See also HQ 111615, dated May 8, 1991; HQ 111150, dated July 25, 1990. It is apparent that the subject vessel would be engaged in the fisheries within the meaning of 46 U.S.C. § 108. As it is Canadian-built, regardless of tonnage, it would not be eligible for documentation for the fisheries under 46 U.S.C. § 12113. We note, however, that if it is less than 5 net tons and numbered pursuant to 46 U.S.C. § 12301 et seq., it could be considered a vessel of the United States as discussed above and may engage in the fisheries provided it is owned by United States citizens or by resident aliens. Furthermore, as a vessel of the United States it could land its catch of fish, as well as fish caught by another vessel and taken onboard on the high seas, without violating the Nicholson Act (46 U.S.C. § 55114). Transportation: Regarding your proposed use of the subject Canadian-built vessel to transport fish to shore from harvesting vessels at points in the EEZ, but outside the U.S. territorial sea, 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), states 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 U.S. Customs and Border Protection (“CBP”) Regulations, 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 46 U.S.C. § 55102(a), the term “merchandise” includes (1) merchandise owned by the United States Government, a State, or a subdivision of a State; and (2) valueless material. Custom and Border Protection regulations promulgated under the authority of 46 U.S.C. § 55102 provide that a coastwise transportation of merchandise takes place when merchandise laden at a coastwise point is unladen at another coastwise point, regardless of origin or ultimate destination. See 19 C.F.R. § 4.80b(a). In the present matter, the fish in question would not be laden at a coastwise point, but at a point outside the U.S. territorial sea. Accordingly, a transportation of merchandise between coastwise points would not occur and the subject vessel may transport the fish from the harvesting vessel to shore without violating 46 U.S.C. § 55102. See e.g. HQ H037523, dated September 11, 2008; and HQ 112849, dated September 24, 1993. HOLDING: The proposed use of the foreign-built vessel as described above to fish and land its catch in either the U.S. territorial sea or the EEZ constitutes a permissible engagement in the fisheries pursuant to 46 U.S.C. § 12113, provided it is less than 5 net tons, numbered pursuant to 46 U.S.C. § 12301 et seq., and owned by United States citizens or by resident aliens. The proposed use of the foreign-built vessel as described above to transport fish caught by another vessel in the EEZ to the shore from a point more than three miles offshore does not constitute an engagement in coastwise trade for purposes of 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