HQ 115151 - Nicholson Act; Foreign Fishing Vessels; 46 U.S.C. App. §251(a); Fish Products; Landing of Catch of fish; Vessels of United States; 19 C.F.R. §4.96(f) - United States International Trade Commision Rulings

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HQ 115151

January 3, 2001

VES-7-03:RR:IT:EC 115151 LLO

CATEGORY: FISHERIES

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

RE: Nicholson Act; Foreign Fishing Vessels; 46 U.S.C. App. §251(a); Fish Products; Landing of Catch of fish; Vessels of United States; 19 C.F.R. §4.96(f)

Dear Mr. Rudie:

We received your letter regarding your desire to import fish species from Mexico into San Diego Bay on a Mexican flag transport vessel. Our ruling on this matter follows.

FACTS:

Catalina Offshore Products, Inc., (hereinafter Catalina Offshore) wants to import fish species from Mexico into San Diego Bay, California on a Mexican - flag transport vessel. The fish would come primarily from the Coronado Islands. Currently, Catalina Offshore imports fish from Mexico by truck through Otay Mesa. The fisherman at the Coronado Islands would like to sell fish to Catalina Offshore if transportation to San Diego can be arranged. The most convenient method for the Mexican fishermen is to transport by water to San Diego.

ISSUES:

Whether the importation of fish and/or fish products caught from foreign territorial waters and brought into the United States by a foreign flag transport vessel is permissible under title 46 U.S.C. App. §251(a) and 19 C.F.R. §4.96(f).

LAW AND ANALYSIS:

Title 46 U.S.C. App. §251(a) provides:

Except as otherwise provided by treaty or convention to which the United States is 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 vessels on the high seas from a vessel engaged in fishing operations or in the processing of fish or fish products.

The “high seas” are those waters outside the territorial waters of the United States or the territorial waters of any nation. The territorial waters of the United States consist of the territorial sea, defined as the belt three (3) nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline.

Section 4311, Revised Statutes, which was the statute amended by the Nicholson Act in 1950 (Chapter 842, 64 Stat. 577, reserved the privilege of vessels employed in the American fisheries to properly documented vessels built in the United States and owned by United States citizens sections 4132 and 4312, Revised Statutes). The Nicholson Act was intended to strengthen the laws protecting the domestic fishing industry (House Report No. 2934, August 16, 1950, set forth at 1950 U.S.C.C.A.N. 3539). Specifically, it was intended to “make impossible the employment of the “device” under which “foreign fishing vessels without rights under international agreements are able, after making their catches, to obtain documentation as cargo vessels in their home or other foreign ports and, as such cargo vessels, may proceed to American ports and market their fish” (House Report No. 2934, supra). (HQ 109375)

If the Mexican flag transport vessel that Catalina Offshore wishes to use to import the fish qualifies as a non-convention vessel, in accordance with 19 C.F.R.§ 4.96 (a)(2), the Nicholson Act prohibition will not effect the importation of the fish. The Customs Service has ruled that the prohibition does not apply to the landing in the United States of non-convention vessels carrying fish or fish products caught or received someplace other than the high seas (i.e. foreign territorial waters). (HQ 108405)

However, before such fish may be landed by a non-convention cargo vessel, the master must satisfy the port 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 (one of whom must be the next person in authority) or other evidence acceptable to the port director that establishes the place of lading. See, 19 C.F.R. §4.96(f). (HQ 112287)

HOLDING:

Catalina Offshore may import fish and fish products received from the territorial waters (not the high seas) of the Coronado Islands in accordance with 19 C.F.R. §4.96(f). The Mexican flag transport vessel that Catalina Offshore intends to use for importing the goods to the United States must meet the prerequisites of 46 U.S.C. §4.96(a)(2), and land fish and fish products caught or received from foreign territorial waters in accordance with 19 C.F.R. §4.96(f). Additionally, the required crewmembers and master of the vessel must present the proper paperwork and/or evidence required for landing of fish and fish products as required under 19 C.F.R. §4.96(f).

Sincerely,

Larry L. Burton
Chief

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