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HQ 115140




September 5, 2000

VES-7-03-RR:IT:EC 115140 GEV

CATEGORY: CARRIER

Dave Rudie
Catalina Offshore Products, Inc.
5202 Lovelock Street
San Diego, California 92110

RE: Foreign-Flag Vessel; Nicholson Act; 46 U.S.C. App. § 251(a)

Dear Mr. Rudie:

This is in response to your letter dated August 28, 2000, requesting a ruling regarding the applicability of the Nicholson Act to the use of a Mexican-flag transport vessel. Our ruling on this matter is set forth below.

FACTS:

You would like to import fish from Mexico into San Diego Bay on a Mexican-flag transport vessel. The fish would come primarily from the Coronado Islands of Mexico. You currently import fish from Mexico by truck through Otay Mesa. The fishermen at the Coronado Islands would like to sell you fish if you can arrange for transportation to San Diego. The most convenient method for the Mexican fisherman is to transport the fish by water to San Diego.

ISSUE:

Whether the use of a Mexican-flag vessel to transport fish from the Coronado Islands of Mexico to San Diego constitutes a violation of 46 U.S.C. App. § 251(a).

LAW AND ANALYSIS:

The provision relating to the landing of fish or fish products in the United States in the Nicholson Act (the Act of September 2, 1950, as amended, Ch. 842, 64 Stat. 577; 46 U.S.C. App. § 251(a)) has not been changed since its enactment in 1950. Under the Nicholson Act, no foreign-flag vessel shall land in a port of the United States its catch of fish taken on board the vessel on the high seas, or fish products processed therefrom, or any fish or fish products taken on board the vessel on the high seas from a vessel engaged in fishing operations or in the processing of fish or fish products.

However, Customs has held that the proscription against using a foreign-flag vessel set forth in 46 U.S.C. App. § 251(a) does not prohibit its landing in the United States of fish or fish products taken on board the vessel while the vessel is within the territorial jurisdiction of a foreign country, including its territorial sea, inland waters, and ports (see Treasury Decision (T.D.) 78-431, citing T.D. 54861(21)).

Accordingly, a Mexican-flag vessel may land fish in San Diego that were loaded on board that vessel within the territorial jurisdiction of Mexico (i.e., the Coronado Islands) or any other foreign country, including its territorial sea, inland waters, and ports.

HOLDING:

The use of a Mexican-flag vessel to transport fish from the Coronado Islands of Mexico to San Diego does not constitute a violation of 46 U.S.C. App. § 251(a), provided such fish are loaded on board the vessel within the territorial jurisdiction of Mexico or any other foreign country, including its territorial sea, inland waters, and ports.

Sincerely,

Larry L. Burton

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