HQ 0111150 - Coastwise; Fisheries; Foreign-Built Vessel; Marine Vegetation; Harvesting; Navigable Waters; 46 U.S.C. App. 883; 46 U.S.C. 12101; 46 U.S.C. 12108. - United States International Trade Commision Rulings

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HQ 111150

July 25, 1990

VES-3/7-01 CO:R:P:C 111150 JBW

CATEGORY: CARRIER

Donald A. MacKinnon
Raw Material Manager
Protan Scotia Marine Canada Ltd.
P.O. Box 100
Lower Woods Harbour
Nova Scotia, CANADA BOW 2EO

RE: Coastwise; Fisheries; Foreign-Built Vessel; Marine Vegetation; Harvesting; Navigable Waters; 46 U.S.C. App. 883; 46 U.S.C. 12101; 46 U.S.C. 12108.

Dear Mr. MacKinnon:

This letter is in response to your letter, dated June 28, 1990, requesting a ruling regarding the proposed use of your company's aquatic plant harvesting vessel and supporting vessels in the United States.

FACTS:

You state that your company intends to enter a joint venture with North American Kelp - Atlantic Labs, a United States company based in Waldoboro, Maine, to engage in the experimental and commercial harvesting of brown algae seaweed (rockweed). The harvesting will take place in the intertidal zone in an area not to exceed one hundred nautical miles along the coast line from Waldoboro, Maine. The purpose of the experimental harvest is to demonstrate more efficient harvesting techniques, to establish a selective harvest plan based on a three year harvest rotation, to train Atlantic Lab personnel in the use of the machinery, and to develop a maintenance program for the equipment.

To accomplish these purposes, you may use up to use three vessels:

(1) Norwegian Suction Cutter Harvester: This vessel performs the harvesting of the rockweed. It was constructed in 1986 in Norway. Its gross weight is fifteen tons.

(2) Norwegian Power Skiff: This vessel tows the bags of harvested seaweed to a small transport barge anchored off shore. It was manufactured in Norway in 1978. Its gross weight is 8,000 pounds.

(3) Transport Barge Unit #15: The use of this vessel is optional. If used, it will transport the seaweed from the power skiff to the shore. No information was supplied regarding the place of manufacture or the tonnage of the vessel.

ISSUES:

(1) Whether the harvesting of aquatic plants by a foreign-built vessel constitutes an engagement in the fisheries within the meaning of 46 U.S.C. 12101(a)(1).

(2) Whether the transportation of aquatic plants by a foreign-built vessel constitutes an engagement in the coastwise trade.

LAW AND ANALYSIS:

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). However, if the vessel is less than five net tons, the Customs Service has held that such vessels, if owned by United States citizens or by resident aliens, may engage in the fisheries even if foreign-built. C.S.D. 89-85, 23 Cust. B. & Dec., No. 35, 10, 12 (1989), citing T.D. 56382(6), 100 Treas. Dec. 143, 145 (1965). Legislative support for this provision may be found in 16 U.S.C. 1802(27)(B)(1982).

The coastwise laws of the United States prohibit the transportation of merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States. 46 U.S.C.A. App. 883 (West Supp. 1990)(referred to as "the Jones Act"). Generally, the coastwise laws include points within the territorial waters of the United States, which consist of the territorial sea, defined as the belt, three nautical miles wide, adjacent to coast of the United States and seaward of the territorial sea baseline. The term merchandise is defined to includes goods, wares, and chattels of every description. 19 U.S.C.A. 1401(c)(West Supp. 1990).

The fisheries statute and the coastwise merchandise statute are applicable only to those vessels engaged in activities in the navigable waters of the United States, its territories and possessions. The United States Coast Guard determines whether a particular body of water is deemed to be navigable waters of the United States in order to ascertain its own jurisdiction to enforce the laws it administers. The Customs Service, in ascertaining its own jurisdiction to enforce the navigation laws it administers, is strongly disposed to follow determinations of the Coast Guard in the absence of United States judicial decisions or Congressional enactments. C.S.D. 89-85.

The test for navigability has been established by the federal courts through the years. This test consists of four essential elements that, when taken together, state that a navigable waterway of the United States must (1) be or have been (2) used or susceptible of use (3) in the customary modes of trade and travel on the water (4) as a highway for foreign or interstate commerce. See Headquarters Ruling Letter 110994, dated May 24, 1990, and cases cited therein; accord 33 C.F.R. 2.05-25(a)(3)(i) (Coast Guard regulations), 33 C.F.R. 329.4 (Army Corps of Engineers regulations). The proposed activity will take place in the intertidal zone along the coast of Maine. We conclude, from this description, that the activities will take place within navigable waters of the United States.

Applying these rules, we determine that the marine harvesting vessel is engaged in the fisheries within the meaning of 46 U.S.C. 12101(a)(1). Likewise, the transportation of the harvested seaweed by the power skiff would be an engagement in coastwise trade. The request for a ruling does not specify the net tonnage of the harvesting vessel. If the harvesting vessel exceeds five net tons, then it must be documented with a fisheries endorsement. However, the vessel, being foreign-built, would be ineligible for a fisheries endorsement. If the vessel is less than five net tons, it may be considered a vessel of the United States pursuant to 16 U.S.C. 1802(27)(B) provided it is numbered in accordance with the requirements of 46 U.S.C.A. 12301 et seq. (West Supp. 1990), and it is owned by United States citizens or resident aliens. The power skiff, also being foreign-built, would be ineligible for use in the coastwise trade.

HOLDINGS:

(1) The harvesting of marine vegetation by the harvester vessel is engaged in the fisheries within the meaning of 46 U.S.C. 12101(a)(1). The vessel, being foreign-built, is ineligible for a fisheries endorsement if over five net tons. If under five net tons, the vessel may be eligible for use in the fisheries if numbered pursuant to 16 U.S.C. 1802(27)(B) and owned by United States citizens or resident aliens.

(2) The power skiff is engaged in coastwise trade. Its use in the described harvesting operations is prohibited, for it is foreign-built.

Sincerely,

B. James Fritz
Chief

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