HQ 0109768 - Customs treatment of goods, including fish nets, fish processing supplies, and food, brought from abroad to a United States port in a foreign-flag vessel and there transshipped to a United States-flag vessel which transports them to a United States-flag fish catching and processing vessel in the United States EEZ. - United States International Trade Commision Rulings

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HQ 109768

December 2, 1988

VES-7-02 CO:R:P:C 109768/109572 PH

CATEGORY: CARRIER

Gregory K. McCall, Esq.
Perkins Coie
1201 Third Avenue
Fortieth Floor
Seattle, Washington 98101-3099

RE: Customs treatment of goods, including fish nets, fish processing supplies, and food, brought from abroad to a United States port in a foreign-flag vessel and there transshipped to a United States-flag vessel which transports them to a United States-flag fish catching and processing vessel in the United States EEZ.

Dear Mr. McCall:

This is with reference to your letters of June 10 and September 16, 1988, on behalf of AKC Corporation with regard to the operation of the fish catching and processing vessel ALASKAN HERO in the United States Exclusive Economic Zone (EEZ) in the Gulf of Alaska. Our letter of August 15, 1988 (File: 109572), also concerned this matter.

In addition to asking whether certain items may be entered as transit goods, you ask whether the items may be entered free of duty under some other procedure. As stated below, it is possible that the items could be entitled to drawback, under 19 U.S.C. 1313, or exempt from duties as supplies (not including equipment) of vessels of the United States employed in the fisheries, under 19 U.S.C. 1309. If you have any further questions about Customs treatment under these provisions, or about importation for imme- diate exportation, you may address those questions to the Entry Rulings Branch. The mailing address and telephone number of that branch are:

Mr. William Rosoff
Chief, Entry Rulings Branch
U.S. Customs Service
1301 Constitution Avenue, NW.
Washington, D.C. 20229
(Telephone: 202-566-5856)

FACTS:

You state that the ALASKAN HERO, a United States-built vessel documented for the fisheries and registry trades but not the coastwise trade, operates as a fish catching and processing vessel in the United States EEZ in the Gulf of Alaska. You state that the owners of the ALASKAN HERO are considering the following proposal for receipt and disposal by the vessel of certain items.

1. A Japanese-flag tramper will transport such items as Japanese-origin fish nets, cardboard boxes, food, and assorted miscellaneous supplies from Japan to Dutch Harbor, Alaska.

2. The Japanese tramper will offload the items to a United States-flag vessel in Dutch Harbor.

3. The United States-flag vessel will transport the items to the ALASKAN HERO in the EEZ.

4. Crew members of the ALASKAN HERO will consume the food. The boxes will be filled with fish caught and processed by the ALASKAN HERO. These boxes will then be placed on a United States-flag vessel which will come into Dutch Harbor, obtain a Shippers Export Declaration (SED) for the fish and subsequently transport the boxes of fish to Japan. (Alterna- tively, the ALASKAN HERO itself will return to Dutch Harbor, obtain the SED, and transport the boxes of fish to Japan.) The fish net, which is leased, will be used aboard the ALASKAN HERO. At the end of the lease term, the fish net will be returned to Japan and will never be landed on United States territory.

You go on to state that since many of the crewmen of the ALASKAN HERO are Japanese, food is sent from Japan for the vessel on a periodic basis. The boxes are loaned to the ALASKAN HERO by the Japanese purchaser of the fish and are replenished on a peri- odic basis. The nets, which are leased for a 2-year period, have a useful life of approximately 3 years.

You ask that we rule on the issues set forth in the ISSUES portion of this ruling.

ISSUES:

1. Are foreign-origin goods which arrive at a United States port aboard a foreign-flag vessel and are there loaded onto a United States-flag vessel bound for a United States-flag fishing vessel on the high seas imported for duty purposes?

2. If such goods are not imported for duty purposes, may they be entered as transit goods for immediate export or pursuant to some other procedure?

LAW & ANALYSIS:

"Importation" is generally defined as "the bringing of goods within the jurisdictional limits of the United States with the intention to unlade them" (Henry Hollander Co. v. United States, 22 C.C.P.A. 645, 648 (1935); see also, United States v. Field & Co., 14 Ct. Cust. App. 406 (1927), and 19 CFR 101.1(h)). "Ex- portation" is defined in 19 CFR 101.1(k) as "a severance of goods from the mass of things belonging to this country with the inten- tion of uniting them to the mass of things belonging to some foreign country ...."

In this case, the items brought by the Japanese-flag tramper to Dutch Harbor would be considered to be imported because they are brought into the jurisdictional limits of the United States with the intention to unlade them; in fact, they actually are unladen. The items are not exported when they are transported by the United States-flag vessel to the ALASKAN HERO in the EEZ and transferred to that vessel because they are neither severed from the mass of things belonging to this country (they are laden onto a United States-flag vessel) nor is there an intention to unite them with the mass of things belonging to some foreign country. Accordingly, the items under consideration would be considered imported, for duty purposes, when they are unladen in Dutch Harbor, and they may not be entered for immediate export, since they are not exported when they are taken to the ALASKAN HERO.

With regard to your question of whether the items may be entered as transit goods pursuant to some procedure other than immediate exportation, it is possible that the goods could be entitled to drawback, under 19 U.S.C. 1313, or exempt from duties as supplies (not including equipment) of vessels of the United States employed in the fisheries, under 19 U.S.C. 1309. We note, however, that fish nets are considered vessel equipment and would not be exempt from duty under section 1309. If you have any fur- ther questions about Customs treatment under these provisions, or importation for immediate exportation, we suggest that you in- quire of the Entry Rulings Branch (mailing address and telephone number given above).

We assume that you are aware of the possible applicability of the so-called Jones Act (46 U.S.C. App. 883), under which no mer- chandise may be transported between points in the United States embraced within the coastwise laws, either directly or via a
foreign port, or for any part of the transportation, in any vessel other than a vessel built in, owned by citizens of, and documented (for the coastwise trade) under the flag of, the United States. The items under consideration which are laden onto the United States-flag in Dutch Harbor would be prohibited from being transported in a non-coastwise-qualified vessel to another coastwise point and there being unladen, even if such unlading is only for transshipment and even if the non-coastwise- qualified vessel only performs part of the transportation. For example, food transported in a coastwise-qualified vessel from Dutch Harbor to the non-coastwise-qualified ALASKAN HERO in the EEZ and in the ALASKAN HERO to another coastwise point where it was transshipped to a third vessel would be transported in violation of section 883.

With regard to the applicability of section 883 to fish processing activities, your attention is directed to section 504 of the Act of December 29, 1982 (Public Law 97-389; 96 Stat. 1956), which added yet another proviso to section 883. Under this proviso, supplies aboard United States documented fish processing vessels, which are necessary and used for the processing or assembling of fishery products aboard such vessels, are considered ship's equipment and not merchandise.

We also assume that you are aware of the possible applicability of the so-called Nicholson Act (46 U.S.C. App. 251(a)) and the vessel documentation requirements in Chapter 121 of Title 46, United States Code, to the described operation. Under the Nicholson Act, very generally, a foreign-flag vessel may not land in the United States fish or fish products it has caught or received on the high seas (including the EEZ outside United States territorial waters). Under 46 U.S.C. 12108, sub- ject to the laws regulating the fisheries, only a vessel for which a fishery license or an appropriately endorsed registry is issued may be employed in the fisheries. "Fisheries" is defined, in 46 U.S.C. 12101(a) (as recently amended by the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987; Public Law 100-239), to include the processing, storing, and transporting (except in foreign commerce) of fish and fish products in United States navigable waters and the EEZ in addition to the fish catching and related activities formerly included within the definition of "fisheries."

HOLDINGS:

1. Foreign-origin goods which arrive at a United States port aboard a foreign-flag vessel and are there loaded onto a United States-flag vessel bound for a United States-flag fishing vessel on the high seas are imported for duty purposes.

2. Such goods may not be entered for immediate export because they are not considered to be exported when they are taken to the United States-flag fishing vessel on the high seas.

Sincerely,

B. James Fritz

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