HQ 0110288 - Eligibility of vessels rebuilt outside the United States to engage in tuna fishing - United States International Trade Commision Rulings

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HQ 110288

August 23, 1989

VES-7-01/03-CO:R:P:C 110288 GV

CATEGORY: CARRIER

E. Alex Blanton, Esq.
Dyer, Ellis, Joseph & Mills
Watergate - Suite 1000
600 New Hampshire Avenue, NW.
Washington, D.C. 20037

RE: Eligibility of vessels rebuilt outside the United States to engage in tuna fishing

Dear Mr. Blanton:

This is in reference to your letter dated May 31, 1989, on behalf of your client, Bender Shipbuilding Company ("Bender") requesting a ruling as to whether certain activities constitute engaging in the fisheries and whether U.S.-documented vessels engaged in those activities must have a fishery license or endorsement issued under 46 U.S.C. 12108.

FACTS:

Your client, "Bender", is currently considering whether several tuna vessels should be rebuilt in the United States or in a foreign country. The proposed use of the subject vessels includes the catching of tuna within the United States Exclusive Economic Zone (EEZ) and the landing of such catches, wherever caught, in the United States.

ISSUES:

1. Whether the catching of tuna within the EEZ by a vessel that has been rebuilt in a foreign country constitutes an engagement in the fisheries within the meaning of 46 U.S.C. 12101(a)(1) and/or 16 U.S.C. 1801 et seq.

2. Whether the landing of tuna caught within and/or without the EEZ by a vessel that has been rebuilt in a foreign country is prohibited by 46 U.S.C. App. 251(a).
2

LAW AND ANALYSIS:

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 new definition of fisheries, now set forth in 46 U.S.C. 12101(a)(1) 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 Exclusive Economic Zone (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.

Title 46, United States Code, section 12108(b) limits the employment in the fisheries to a fishery-documented vessel, "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 form the National Marine Fisheries Service (NMFS) to engage in fishing in the EEZ). Under 46 U.S.C. 12108(a), only a vessel eligible for documentation (i.e., over 5 net tons and owned by a citizen) which was built in the United States may be documented for the fisheries. Pursuant to 46 U.S.C. 12108(b), subject to the laws of the United States regulating the fisheries, only a vessel so documented may engage in the fisheries. Further in this regard, we refer to the letter from Mr. Thomas L. Willis, Chief, Vessel Documentation Branch, United States Coast Guard (USCG), dated June 27, 1989, (1673/31- 4) in response to your letter of May 31, 1989, confirming the above information regarding this matter.

The Magnuson Fishery Conservation and Management Act of 1976 (MFCMA, 16 U.S.C. 1801 et seq.) was enacted, in pertinent part, to conserve and manage the fishery resources found off the coasts of the United States, and the anadromous species and Continental Shelf fishery resources of the United States by establishing (A) a fishery conservation zone within which the United States will assume exclusive fishery management authority over all fish, except highly migratory species, and (B) exclusive fishery management authority beyond such zone over such anadramous 3
species and Continental Shelf fishery resources (16 U.S.C. 1801(b)(1)). Although the MFCMA is administered by NMFS which is under the authority of the National Oceanic and Atmospheric Administration (NOAA) it is our understanding that the MFCMA does not cover most species of tuna (16 U.S.C. 1802(14), 1813).

Accordingly, although it would appear that most species of tuna do not come within the purview of the MFCMA, a vessel engaged in the catching of tuna within the EEZ is considered to be engaged in the fisheries within the meaning of 46 U.S.C. 12101(a)(1) and must be issued a fishery license or a properly endorsed registry. Pursuant to the aforementioned letter from the USCG on this matter, a vessel which has been rebuilt in a foreign country may not obtain a fisheries license.

The provision relating to the landing of fish in the United States in the Nicholson Act (the Act of September 2, 1950, as amended, Ch. 842, 64 Stat. 577; 46 U.S.C. App. 251(a)) has not been changed since its enactment in 1950. Under the Nicholson Act, no foreign-flag vessel shall land in a port of the United States its catch of fish taken on board the vessel on the high seas, or fish products processed therefrom, or any fish or fish products taken on board the vessel on the high seas from a vessel engaged in fishing operations or in the processing of fish or fish products. Since this prohibition is directed against foreiqn-flag vessels, a United States-flag, foreign-built vessel (which usually could not be documented for the coastwise or fisheries trade and therefore could not engage in the fisheries within the EEZ) could land in the United States fish (including those species of tuna not covered by the MFCMA) it had caught or received on the high seas outside the EEZ without violating the Nicholson Act.

Accordingly, the landing in a port of the United States of tuna caught outside the EEZ by a U.S.-flag vessel that has been rebuilt foreign would not violate 46 U.S.C. 251(a).

It should be noted however, that in view of the new definition of fisheries set forth in 46 U.S.C. 12101(a)(1) which now includes the transportation of fish and related fishery resources in the EEZ, it is possible that the transportation in a U.S.-flag, non-fisheries-qualified vessel from a point outside the EEZ to the U.S. is prohibited under 46 U.S.C. 12108 notwithstanding the foregoing interpretations of the Nicholson Act. In this regard Customs is preparing a notice for publication in the Federal Register which will allow all interested parties to comment on several issues concerning this matter among them the issue as to whether the transportation, by a vessel not documented for the fisheries (whether under foreign or American documentation) of fish caught on the high seas outside the EEZ by that vessel, through the EEZ and territorial waters, constitutes an engagement in the fisheries. Until such 4
time as we thoroughly review all comments received and issue a final ruling on this matter, our position remains as stated above.

HOLDINGS:

1. The catching of tuna within the EEZ by a vessel that has been rebuilt in a foreign country constitutes an engagement in the fisheries within the meaning of 46 U.S.C. 12101(a)(1) and is prohibited inasmuch as such a vessel cannot be documented for the fisheries under 46 U.S.C. 12108(b) notwithstanding the provisions of the MFCMA (16 U.S.C. 1801 et seq.)

2. The landing of tuna caught outside the EEZ by a U.S.- flag vessel that has been rebuilt in a foreign country is not prohibited by 46 U.S.C. App. 251(a).

Sincerely,

B. James Fritz

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