HQ 0111062 - Fisheries; Guam; Northern Mariana Islands; American Samoa; Micronesia; Country of Origin; 46 U.S.C. 12108(c) - United States International Trade Commision Rulings

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HQ 111062

August 16, 1990

VES-7-CO:R:P:C 111062 GEV

CATEGORY: CARRIER

Mr. Edward Hong
President
Young Wood Inc.
1630 Liholiho St., Apt. 2208
Honolulu, Hawaii 96822

RE: Fisheries; Guam; Northern Mariana Islands; American Samoa; Micronesia; Country of Origin; 46 U.S.C. 12108(c)

Dear Mr. Hong:

This is in response to your letter dated May 12, 1990, regarding your proposed purchase and use of a Japanese fishing vessel. Our ruling is set forth below.

FACTS:

You are a U.S. citizen and plan to purchase a Japanese fishing vessel in Japan and bring it to Guam to engage in commercial fishing around Guam, Micronesia and the Northern Mariana Islands. You are planning to document the vessel under the U.S. flag. The U.S. Coast Guard documentation officer in Honolulu, after assuring you that the subject vessel could be documented under the laws of the United States, suggested that you write Customs to clarify the following questions:

1. Federal laws state that "a foreign-built vessel, which is documented under U.S. laws, may engage in fishing in the territorial sea and fishery conservation zone adjacent to Guam, American Samoa and the Northern Mariana Islands." Please clarify the word "adjacent." Does this mean that I will be prohibited to fish within Guam waters although the vessel will be documented under U.S. laws and permitted to engage in American Fisheries?

2. Can I ship my fish catches to the United States, such as California, New York and Hawaii, via air freight, without the fish considered to be of foreign origin?

3. Can I sell my fish catches to the fish canneries in Guam?

ISSUES:

1. Whether a foreign-built vessel documented under the laws of the United States pursuant to 46 U.S.C. 12108(c) is prohibited from engaging in the fisheries within the territorial sea and fishery conservation zone of Guam.

2. Whether fish caught by a foreign-built vessel documented under the laws of the United States pursuant to 46 U.S.C. 12108(c), landed foreign and then transported via air freight to the United States are considered to be of foreign origin for purposes of the Customs laws.

3. Whether fish caught by a foreign-built vessel documented under the laws of the United States pursuant to 46 U.S.C. 12108(c) may be sold to fish canneries in Guam.

LAW AND ANALYSIS:

Title 46, United States Code, section 12108(c), provides that a certificate of documentation with a fishery endorsement to engage in fishing in the territorial sea and fishery conservation zone adjacent to Guam, American Samoa, and the Northern Mariana Islands may be issued to a vessel that: (1) is less than two hundred gross tons; (2) was not built or rebuilt in the United States; (3) is eligible for documentation; and (4) otherwise qualifies under the laws of the United States to be employed in the fisheries.

Accordingly, vessels meeting the above four requirements are permitted to be documented under the laws of the United States pursuant to 46 U.S.C. 12108(c) and fish within the territorial sea and fishery conservation zone of Guam. The word "adjacent" as used in the above statute includes the territorial sea and fishery conservation zone of Guam and does not refer to waters beyond those specific limits.

In regard to commercial fishing operations it is the position of the Customs Service that the country of origin of fish caught outside the territorial waters of the United States, whether or not caught in a fisheries zone or an exclusive economic zone (EEZ), is considered to be that of the flag of the catching vessel. Accordingly, absent a foreign processing operation effecting a substantial transformation into a new and different product, fish caught by the subject vessel (U.S. documented pursuant to 46 U.S.C. 12108(c)) and transported via air freight to the United States are considered to be of United States origin.

In regard to your wish to sell your catch to fish canneries in Guam, no law administered by the Customs Service precludes such an activity. We suggest, however, that you contact the local authorities in Guam regarding their requirements, if any.

HOLDINGS:

1. A foreign-built vessel documented under the laws of the United States pursuant to 46 U.S.C. 12108(c) is not prohibited from engaging in the fisheries within the territorial sea and fishery conservation zone of Guam.

2. Absent a foreign processing operation which would effect a substantial transformation into a new and different product, fish caught by a foreign-built vessel documented under the laws of the United States pursuant to 46 U.S.C. 12108(c) and transported via air freight to the United States are not considered to be of foreign origin for purposes of the Customs laws.

3. No law administered by the Customs Service prohibits the sale of fish caught by a foreign-built vessel documented under the laws of the United States pursuant to 46 U.S.C. 12108(c) to fish canneries in Guam. We suggest, however, that local authorities in Guam be contacted as to their requirements, if any.

Sincerely,

B. James Fritz

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