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

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H279102 September 14, 2016 BOR-07-OT:RR:BSTC:CCR H279102 ASZ CATEGORY: Carriers William N. Myhre K&L Gates LLP 1601 K Street N.W. Washington, DC 20006 RE: Fisheries; Coastwise Transportation; 46 U.S.C. §§ 108, 12113 Dear Mr. Myhre: This letter is in response to your correspondence dated August 17, 2016, requesting a ruling on whether a stationary, unmanned barge used as a dock extension in connection with a fish processing facility is engaged in the fisheries as defined in 46 U.S.C. § 108 and is therefore in violation of 46 U.S.C. § 12113(b)(1). FACTS [] is considering time chartering a barge to be used as a dock extension in connection with a salmon processing facility in Alaska. The subject barge is a U.S. built tank barge measuring approximately 173 feet in length. [] intends to secure the barge adjacent to an existing dock so it can be used as a dock extension. Fish will be pumped directly from delivering tender boats through a hose that runs across the barge and the adjacent dock to a fish processing facility. A crane on the barge will maneuver the end of the hose to the delivering tender where the crane on the tender will support the end of the hose when the fish are pumped out of the vessel’s hold. The barge crane will also be used to load supplies, nets, etc. on the tenders. The barge will be stationary during the season and will not operate to process, store, transport, catch, take, or harvest fish. The subject barge is documented with a coastwise endorsement, but is ineligible for a fishery endorsement under 46 U.S.C. § 12113(d)(1)(A) because it is greater than 165 feet in registered length. The barge does not qualify for the grandfather provision in 46 U.S.C. § 12113(d)(2)(A) because it was not endorsed with a fishery endorsement that was effective on September 25, 1997. ISSUE Whether a barge that is exclusively used as a stationary dock extension over which fish will be pumped from delivering fish tender vessels to a shore-based processing facility is engaged in the fisheries as defined in of 46 U.S.C. § 108 and is therefore in violation of 46 U.S.C. § 12113(b)(1). LAW AND ANALYSIS Pursuant to 46 U.S.C. § 12113(b)(1), “a vessel for which a fishery endorsement is issued may engage in the 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. 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. In HQ 111615, we found 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. Although your proposed use of the subject barge involves the use of a hose that runs across the barge through which fish are pumped from tender vessels to an onshore fish processing facility, you state that the barge will remain stationary throughout the season and will not transport, store, catch, take, harvest, process, or treat the fish in any manner. In regard to the barge under consideration, it is apparent that its exclusive use as a stationary dock extension over which fish will be pumped through a hose from fish tender vessels to a shore-based processing facility does not fall within the definition of “fisheries” as set forth in 46 U.S.C § 108. HOLDING A barge that is exclusively used as a stationary dock extension over which fish will be pumped from delivering fish tender vessels to a shore-based processing facility is not engaged in the fisheries as defined in 46 U.S.C. § 108. Accordingly, the proposed use of this stationary, unmanned barge as a dock extension in connection with a fish processing facility would not violate 46 U.S.C. § 12113(b)(1). Sincerely, Lisa L. Burley Chief/Supervisory Attorney-Advisor Cargo Security, Carriers and Restricted Merchandise Branch Office of International Trade, Regulations and Rulings U.S. Customs and Border Protection