HQ 113406 - Fisheries; Nicholson Act; Transshipment; Russian-flag vessels; Landing in Canada; 46 U.S.C. App. 251(a) - United States International Trade Commision Rulings

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HQ 113406

May 18, 1995

VES-7-R:IT:C 113406 LLB

CATEGORY: CARRIER

Mr. Charles Routh
Garvey, Schubert and Barer
1191 Second Avenue
Seattle, Washington 98101-2939

RE: Fisheries; Nicholson Act; Transshipment; Russian-flag vessels; Landing in Canada; 46 U.S.C. App. 251(a)

Dear Mr. Routh:

Reference is made to your letter of April 14, 1995, in which you request that this office rule upon certain issues relating to the catching, transportation, and landing of crabs and crab products. Our findings are set forth below.

FACTS:

A fishing cooperative organized under the laws of the Russian Federation owns two vessels known as trampers. The vessels primarily haul supplies and cargo, and also possess the capability of pulling crab pots. Neither vessel is capable of acting as a processor of crabs. In addition, the same Russian cooperative owns three crabber / processor vessels which are engaged exclusively in crabbing and crab processing operations in waters included within the Exclusive Economic Zone (EEZ) and outside the territorial waters of Russia. It is desired that one or more of the crabber / processors be utilized in fishing in what is described as "the Bering Sea area". The Bering Sea, of course, lies partially within the EEZ and territorial waters of the United States, and partially within such waters of Russia. It is proposed that one of the company tramper vessels would bring supplies to the fishing vessel from Seattle, Washington, and would thereafter receive processed crab from the fishing vessel for delivery to a port in Canada. The landed crab products would be subsequently transshipped from Canada to Ports in the United States and Japan.

ISSUE:

Whether the operation as described in the Facts portion of this ruling may be considered to be violative of the Nicholson Act, codified at 46 U.S.C. App. 251(a).

LAW AND ANALYSIS:

Title 46, United States Code Appendix, section 251(a), popularly known as the Nicholson Act, provides, in pertinent part:

(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 vessels 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.

There is no law administered by the Customs Service which prohibits a foreign-flag vessel from landing in the United States any fish or fish products taken on board the vessel while it is within the territorial jurisdiction of a foreign country (see T.D. 78-431, citing T.D. 54861 (21), wherein we ruled that a vessel which arrived in the United States to unlade fish which were not its own catch and which were laded at a foreign port and not on the high seas did not violate the Nicholson Act).

In the present matter, it is proposed that the vessel which ultimately delivers processed crab to a port in the United States will receive its cargo at a point in Canada. It is clear that the Nicholson Act prohibition concerns the direct transportation of fish or fish products from a point on the high seas to a port in the United States, either by the catching vessel or by a vessel which has received its cargo from the catching vessel. Since the vessel which will receive the processed crab on the high seas will transport that cargo to a point in Canada, there will be no violation of the provisions of the Nicholson Act.

HOLDING:

A vessel may receive a cargo of processed crab from a catching / processing vessel at a point on the high seas, and transport that cargo to a point of unlading located in Canada without violating the provisions of 46 U.S.C. App. 251(a), popularly known as the Nicholson Act. The fact that the cargo may subsequently be transported from Canada to a port in the United States by a different vessel does not impact upon this determination.

Sincerely,

Arthur P. Schifflin

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