HQ 0111905 - Fishing; Landing of Catch; Transhipment; Foreign Vessel; 46 U.S.C. App. 251; 19 C.F.R. 4.96. - United States International Trade Commision Rulings

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HQ 111905

April 28, 1992

VES-7-03/7-05 CO:R:IT:C 111905 JBW

CATEGORY: CARRIER

Mr. Elwood Peterson
International Shipping Services, Inc.
Market Place, Two
2001 Western Avenue, Suite 430
Seattle, Washington 98121

RE: Fishing; Landing of Catch; Transhipment; Foreign Vessel; 46 U.S.C. App. 251; 19 C.F.R. 4.96.

Dear Mr. Peterson:

This letter is in response to your request, dated September 17, 1991, for a ruling on the transportation to the United States of frozen fish caught in foreign waters or on the high seas.

FACTS:

In your letter, you propose two scenarios regarding the transportation to the United States of frozen fish caught in foreign waters or on the high seas. The first scenario involves fish caught and processed in Russian waters; a United States-flag vessel then loads the fish in a Russian port onto a foreign-flag cargo vessel for transportation to the United States. You ask whether such a transportation violates either the Jones Act or the Nicholson Act. You also ask whether the fish would be considered to be of United States or foreign origin. The second scenario involves the transhipment in United States waters to a United States-flag cargo vessel of fish caught in Russian waters by a United States-flag fish processor. In a subsequent correspondence, dated November 20, 1991, you request that we advise you whether fish caught by a Polish fishing vessel can be transhipped outside of the United States exclusive economic zone (EEZ) to a Japanese-flag vessel for transportation to the United States.

ISSUES:

(1) Whether fish caught and processed in Russian waters by a United States-flag fish processor may be loaded in a Russian port onto a foreign-flag cargo vessel for transportation to the United States.

(2) Whether fish caught by a Polish fishing vessel can be transhipped outside of the United States EEZ to a Japanese-flag vessel for transportation to the United States.

(3) Whether fish caught and processed in Russian waters by a United States-flag fish processor may be transhipped in United States waters to a United States-flag cargo vessel for transportation to the United States.

LAW AND ANALYSIS:

The Nicholson Act (46 U.S.C.A. App. 251 (West Supp. 1991)) provides:

(a) Except as otherwise provided by treaty or convention to which the United States is a party, no foreign-flag vessel shall, whether documented as a cargo vessel or otherwise, land in a port of the United States its catch of fish taken on board such vessel on the high seas or fish products processed therefrom, or any fish or fish products taken on board such vessel on the high seas from a vessel engaged in fishing operations or in the processing of fish or fish products.

For purposes of this statute, the high seas are those waters outside the territorial waters of the United States or the territorial waters of another nation. The territorial waters of the United States include the territorial sea, defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and points located in internal waters, landward of the territorial sea baseline, where the baseline and the coastline differ. See Headquarters Ruling Letter 111275, dated November 13, 1990.

Because the Nicholson Act prohibits the landing by a foreign-flag vessel in the United States of fish or fish products caught or received by the vessel on the high seas, the Customs Service has ruled that the prohibition does not apply to the landing in the United States of fish or fish products caught or received elsewhere than the high seas (i.e. foreign territorial waters). Headquarter Ruling Letter 108405, dated June 17, 1986. Thus, a foreign-flag vessel may land in the United States fish or fish products that it had received in Russian territorial waters, but not the Russian EEZ. Id.; see also 19 C.F.R. 4.96(f) (1991). The Customs Regulations provide, however, that before such fish may be landed by a nonconvention cargo vessel (as defined in the regulations, but including all non-Canadian cargo vessels), the master shall satisfy the district director of Customs that the fish were not taken on board on the high seas by presenting declarations of the master and two or more officers or members of the crew of the vessel, of whom the person next in authority to the master shall be one, or other evidence acceptable to the district director that establishes the place of lading. 19 C.F.R. 4.96(f). Finally, because the fish are shipped from a point outside of United States territorial waters, we find no violation of the Jones Act (46 U.S.C.A. App. 883 (West Supp. 1991)).

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.

46 U.S.C.A. 12101(a)(1) (West Supp. 1991). 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. 1991). 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. 1991).

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.

From these principles, we conclude that fish caught by a Polish fishing vessel cannot be transhipped outside of the United States EEZ to a Japanese-flag vessel for transportation to the United States, unless such fish are transhipped in the territorial waters of another nation. We also conclude that fish caught and processed in Russian waters by a United States-flag fish processor may not be transhipped in United States waters, both territorial and EEZ, to a United States-flag cargo vessel for transportation to the United States, unless the receiving vessel has a fisheries endorsement. If the fish are transhipped in territorial waters, then the receiving ship must have a coastwise endorsement in addition to a fisheries endorsement.

The question has arisen, however, whether a vessel not documented for the fisheries may transport fish or fish products, caught or processed outside of the EEZ, to a point within the United States 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). It is currently the position of the Customs Service that vessels not documented for the fisheries may transport or transship in the United States EEZ fish caught outside of the United States EEZ. Insofar as the final interpretive rule may affect your proposed activities, we advise you to monitor future notices.

In regard to commercial fishing operations, the Customs Service has held 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 EEZ, is considered to be that of the flag of the catching vessel. Headquarters Ruling Letter 110343, dated September 20, 1989. Further questions regarding the origin and dutiability of fish products are not within the purview of this branch. Questions should be addressed to:

Director
Commercial Rulings Division
Office of Regulations and Rulings
United States Customs Service
Washington, D.C. 20229

HOLDINGS:

(1) A foreign-flag vessel may land in the United States fish or fish products that it had received in Russian territorial waters, but not the Russian EEZ, provided requirements established under 19 C.F.R. 4.96(f) are met.

(2) Fish caught by a Polish fishing vessel cannot be transhipped to a Japanese-flag vessel for transportation to the United States, unless such fish are transhipped in the territorial waters of another nation.

(3) Fish caught and processed in Russian waters by a United States-flag fish processor may not be transhipped in United States waters, both territorial and EEZ, to a United States-flag cargo vessel for transportation to the United States, unless such vessel has a fisheries endorsement. If the fish are transhipped in territorial waters, then the receiving ship must have a coastwise endorsement in addition to a fisheries endorsement.

Sincerely,

B. James Fritz
Chief

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