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HQ 112244


June 10, 1992

VES-3/7-01-CO:R:IT:C 112244 GEV

CATEGORY: CARRIER

Laurie L. Crick, Esq.
Dyer, Ellis, Joseph & Mills
Watergate - Suite 1000
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037

RE: Aquatic Plant Harvesting Vessels; Fisheries; Coastwise Trade; 46 U.S.C. 12101(a), 12108(b); 46 U.S.C. App. 883

Dear Ms. Crick:

This is in response to your letter dated May 19, 1992, on behalf of your client, Ecomarine, Inc., requesting a ruling regarding possible coastwise trade and fisheries implications in the proposed use of a foreign-built vessel. Our ruling is set forth below.

FACTS:

Ecomarine, Inc., is contemplating the purchase of an Italian-built, multi-purpose vessel to be used solely in Lake Cibra, Puerto Rico, for the purpose of removing aquatic vegetation from channels and marinas. Pursuant to a request from counsel for Ecomarine, Inc., the Commanding Officer, Marine Safety Office, U.S. Coast Guard (USCG), San Juan, Puerto Rico, has provided a letter, dated May 12, 1992, stating that Lake Cibra is not considered to be navigable waters of the United States for purposes of the laws and regulations administered by that agency (see section 2.05-25(a), USCG Regulations (33 CFR 2.05-25(a), defining navigable waters).

ISSUE:

1. Whether the use of a foreign-built vessel to harvest aquatic vegetation from Lake Cibra, Puerto Rico, is considered an engagement in the fisheries within the meaning of 46 U.S.C 12101(a) so as to constitute a violation of 46 U.S.C. 12108(b).

2. Whether the use of a foreign-built vessel to harvest aquatic vegetation from Lake Cibra, Puerto Rico, is considered an engagement in the coastwise trade in violation 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" set forth therein to include the "processing, storing, and transporting (except in foreign commerce)" of fish and related fishery resources in 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). Pursuant to 19 U.S.C. 1401(a), the word "vessel" includes every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft. 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 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.

In regard to an aquatic plant harvesting vessel, Customs has ruled that such a vessel is engaged in the fisheries within the meaning of 46 U.S.C. 12101(a)(1) (see C.S.D. 89-85 and rulings 110104 and 110613). 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 any vessel (other than a harvesting vessel) used in U.S. territorial waters solely for transporting harvested vegetation to shore, it is apparent that such a 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 such a vessel as described above on navigable waters would constitute a violation of 46 U.S.C. App. 883.

As discussed above, it is proposed to operate the Italian- built vessel under consideration on Lake Cibra, Puerto Rico, a body of water the U.S. Coast Guard has deemed not to be navigable waters of the United States for the purpose of ascertaining jurisdiction to enforce the laws it administers. Upon reviewing this matter, Customs will follow this determination in ascertaining its own jurisdiction in enforcing the navigation laws it administers.

Accordingly, the proposed use of the Italian-built vessel to harvest aquatic vegetation would not constitute an engagement in the fisheries for purposes of 46 U.S.C. 12101(a) and 12108(b) in view of the fact that Lake Cibra is not considered navigable waters of the United States. The same rationale renders the provisions of 46 U.S.C. App. 883 inapplicable as well, although assuming arguendo the navigability of Lake Cibra, its use in harvesting aquatic vegetation (as opposed to use solely for transporting such vegetation or any other merchandise) would not be considered an engagement in the coastwise trade within the meaning of 46 U.S.C. App. 883.

HOLDINGS:

1. The use of a foreign-built vessel to harvest aquatic vegetation from Lake Cibra, Puerto Rico, a body of water not deemed navigable waters of the United States for purposes of applying Federal law, is not considered an engagement in the fisheries within the meaning of 46 U.S.C. 12101(a) so as to constitute a violation of 46 U.S.C. 12108(b).

2. The use of a foreign-built vessel to harvest aquatic vegetation from Lake Cibra, Puerto Rico, a body of water not
deemed navigable waters of the United States for purposes of applying Federal law, is not considered an engagement in the coastwise trade in violation of 46 U.S.C. App. 883.

Sincerely,

B. James Fritz

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