HQ 0111353 - Aquatic weed harvesting; Fisheries; Navigable waters; Coastwise transportation; Net tonnage; 46 U.S.C. 12101; 46 U.S.C. App. 883; T.D. 56382 - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1992 HQ Rulings > HQ 0111336 - HQ 0111554 > HQ 0111353

HQ 111353

January 18, 1991

VES-3-CO:R:IT:C 111353 LLB

CATEGORY: CARRIER

Mr. Harlan M. Stein
The Houston Group
4550 Post Oak Place
Houston, Texas 77027

RE: Aquatic weed harvesting; Fisheries; Navigable waters; Coastwise transportation; Net tonnage; 46 U.S.C. 12101; 46 U.S.C. App. 883; T.D. 56382

Dear Mr. Stein:

This is in reference to your letter of October 12, 1990, concerning the use of a foreign-built aquatic weed harvester in certain canals and levees in South Florida. You request that the identity of the applicant remain confidential, and we acceed to that request.

FACTS:

It is proposed that a foreign-built vessel designed for the harvesting of submerged hydrilla be brought into the United States for the purpose of removal of hydrilla from canals "and other similar waterways" located in the South Florida Water Management District, Dade County, Florida. The process involves the severing of hydrilla from the waterway beds and the deposit of the collected weeds onto a "transporter unit" which would carry the severed hydrilla to a shore-side disposal site. It is stated that the management district classifies the bodies of water in question as non-navigable.

ISSUE:

1. Whether the use of a vessel to harvest aquatic plants constitutes an engagement in the fisheries within the meaning of 46 U.S.C. 12101(a)(1).

2. Whether the use of a vessel to transport aquatic plants from the point of harvest to a shore-side disposal site constitutes an engagement in the coastwise trade within the meaning of 46 U.S.C. App. 883.

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" to include the "processing, storing, and transporting (except in foreign commerce)" of fish and related fishery resources in the United States navigable waters and the Exclusive Economic Zone (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 above definition of fisheries supersedes the definition of "fishing" found in section 4.96(a)(5), Customs Regulations (19 CFR 4.96(a)(5) which included the transportation of marine products by a vessel other than the taking vessel under the complete control and management of a common owner or bareboat charterer. It should be noted that this superseded definition was applicable only to the transportation of marine products taken and transferred on the high seas and did not provide any exception to the coastwise laws.

Title 46, United States Code, section 12108(b) limits the employment in the fisheries to a vessel issued a certificate of documentation with a fishery endorsement, "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 from the National Marine Fisheries Service 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 endorsed 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 endorsed may engage in the fisheries. With regard to vessels of less than 5 net tons, Customs has long held that such vessels, if owned by United States citizens or by resident aliens, may engage in the fisheries even if foreign-built (see e.g., Treasury Decision (T.D.) 56382(6)). Legislative support for this provision may be found in 16 U.S.C. 1802(27)(B).

Title 46, United States Code Appendix, section 883 (46 U.S.C. App. 883), the coastwise merchandise statute often called the "Jones Act", provides, in part, that no merchandise shall 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 and documented under the laws of the United States and owned by persons who are citizens of the United States (i.e., a coastwise-qualified vessel). This statute has been found to apply even to the transportation of merchandise from point to point within a harbor. Pursuant to 19 U.S.C. 1401(c), the word "merchandise" means goods, wares and chattels of every description and includes merchandise the importation of which is prohibited. Furthermore, Public Law 100-329 (102 Stat. 588) amended section 883 to apply to the transportation of "valueless material..."

The provisions of title 46, United States Code, relating to the fisheries and the coastwise laws, as well as other navigation laws administered by the Customs Service (e.g., 46 U.S.C. App. 316(a)), are applicable only to those vessels engaged in activities in the navigable waters of the United States, and the navigable waters of its territories and possessions. The U.S. Coast Guard determines whether a particular body of water is deemed navigable waters of the United States in order to ascertain its jurisdiction to enforce the laws it administers. The U.S. Customs Service, in ascertaining its own jurisdiction to enforce the navigation laws it administers, is strongly disposed to follow the determinations of the U.S. Coast Guard in the absence of Federal judicial decisions or explicit Congressional enactment, although it is not required to do so.

Assuming, arguendo, use on navigable waters, it is apparent that an aquatic plant harvesting vessel is engaged in the fisheries within the meaning of 46 U.S.C. 12101(a)(1). If it is foreign-built, regardless of its tonnage it is not eligible for documentation for the fisheries under 46 U.S.C. 12108(a). We note, however, that if it is less than 5 net tons and numbered pursuant to 46 U.S.C. 12301 et seq. it is considered a vessel of the United States pursuant to 16 U.S.C. 1802(27)(B) and may engage in the fisheries provided it is owned by United States citizens or by resident aliens.

In regard to the vessel used for transporting harvested vegetation to shore, it is apparent that such vessel is engaged in the coastwise trade. Pursuant to section 4.80(a)(2), Customs Regulations (19 CFR 4.80(a)(2)), no foreign- built vessel, regardless of its tonnage, may engage in the coastwise trade. Accordingly, the use of a non-qualified vessel on navigable waters would constitute a violation of 46 U.S.C. App. 883.

HOLDING:

1. A vessel which harvests aquatic plants from United States waters recognized as navigable is engaged in the fisheries within the meaning of 46 U.S.C. 12101(a). If the vessel is foreign-built it is not eligible for documentation for the fisheries under 46 U.S.C. 12108(a). If it is less than 5 net tons and numbered pursuant to 46 U.S.C. 12301 et seq. it is considered a vessel of the United States pursuant to 16 U.S.C. 1802(27)(B) and may engage in the fisheries provided it is owned by United States citizens or by resident aliens.

2. A vessel, used on United States waters recognized as navigable to transport harvested aquatic plants from their point of harvest to a disposal point on shore is engaged in the coastwise trade within the meaning of 46 U.S.C. App. 883. Pursuant to section 4.80(a)(2), Customs regulations (19 CFR 4.80(a)(2), no foreign-built vessel, regardless of its tonnage, may engage in the coastwise trade.

Sincerely,

B. James Fritz

Previous Ruling Next Ruling