HQ 0110917 - Application of United States laws governing fishing to the landing or transporting of fish caught in international waters by a foreign-flag or a United States-flag vessel - United States International Trade Commision Rulings

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HQ 110917

June 20, 1990

VES-7-03 CO:R:P:C 110917 JBW

CATEGORY: CARRIER

Mr. Charles C.H. Lee
6220 Bret Hills Drive
Paradise Valley, Arizona 85253

RE: Application of United States laws governing fishing to the landing or transporting of fish caught in international waters by a foreign-flag or a United States-flag vessel

Dear Mr. Lee:

Your letter of January 23, 1990, addressed to the United States Coast Guard, has been referred to this office for reply concerning the application of the Nicholson Act, 46 U.S.C.A. App. 251 (West Supp. 1990), and other laws regulating fishing to your proposed activities.

FACTS:

In your letter, you state that Japanese and Taiwanese fishing vessels are fishing for tuna in international waters near Hawaii. This tuna is transhipped on the high seas to a United States vessel that lands the catch in Hawaii. The tuna in turn is exported from Hawaii by airfreight. You state that the Japanese and Taiwanese fishing vessels had, in the past, landed their catches in United States ports, but were subsequently prohibited from doing so.

ISSUES:

(1) Whether a foreign-flag vessel may land its catch, which is destined for export, in a United States port.

(2) Whether a United States-flag vessel may land the catch of a foreign-flag vessel in a United States port where the catch was transshipped outside of United States territorial waters.

LAW AND ANALYSIS:

United States law prohibits a foreign-flag vessel from landing in a United States port its catch of fish taken on board the vessel on the high seas. 46 U.S.C.A. App. 251(a). For purposes of this statute, the high seas are those waters outside the territorial waters of the United States or those of other nations. The territorial waters of the United States consist of the territorial sea, defined as the belt, three nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline.

The statute prohibiting the landing of fish taken on board by a foreign-flag vessel applies regardless of the intended ultimate disposition of the fish, including the exportation of the fish. 19 C.F.R. 4.96(b) (1989). Applying this rule to the facts as you present them, the Japanese and Taiwanese vessels may not land their tuna catches, even if the catches are intended for export, in a United States port.

The Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987, Pub. L. No. 100-239, 3, 101 Stat. 1778 (1988), defines the term fisheries to include:
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 [EEZ].

46 U.S.C.A. 12101(a)(1) (West Supp. 1990). United States statutory law limits, subject to other laws of the United States regulating the fisheries, employment in the fisheries as defined above to vessels issued certificates of documentation with fishery endorsements. 46 U.S.C.A. 12108(b) (West Supp. 1990). For a fishery endorsement, the vessel must be eligible for documentation, that is, over five net tons and owned by a United States citizen, and be built in the United States. 46 U.S.C.A. 12108(a) (West Supp. 1990).

The statute thus permits United States vessels documented for the fisheries to take on fish outside the territorial waters and to unload the fish in a United States port. See Headquarters Ruling Letter 110133, dated August 28, 1989 (interpreting 46 U.S.C.A. App. 251(a); 46 U.S.C.A. 12101(a)(1) & 12108). Moreover, the current position of the Customs Service is that a United States-flag, foreign-built vessel, which cannot be documented for the coastwise or fisheries trade, 46 U.S.C.A. 12106(a), 12108(a), is not prohibited from landing in a United States port fish caught or received at a point outside of the United States EEZ. Id. The question has arisen, however, whether a United States vessel not documented for the fisheries may transport fish or fish products, caught or processed outside of the EEZ, to a point within United States, the United States territorial waters, or the EEZ pursuant to 46 U.S.C.A. 12108. We call your attention to a notice in the Federal Register in which the Customs Service has solicited comments on the interpretation of rules regarding the transshipment and transportation of tuna caught outside the EEZ. 54 Fed. Reg. 36038 (Aug. 31, 1989). Insofar as the final interpretive rule may affect your proposed activities, we advise you to monitor future notices.

HOLDING:

United States law prohibits a foreign-flag vessel from landing in a United States port its catch of fish taken on board the vessel on the high seas, regardless of the intended ultimate disposition of the catch. The current Customs Service position is that a United States-flag vessel may land the catch of a foreign-flag vessel in a United States port where the catch was caught and transshipped outside of United States territorial waters. However, the question of whether a vessel not documented for the fisheries may transport fish caught outside of United States territorial waters and the EEZ to points therein is under review by the Customs Service.

Sincerely,

B. James Fritz
Chief

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