United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2002 HQ Rulings > HQ 115630 - HQ 228011 > HQ 115666

Previous Ruling Next Ruling
HQ 115666





May 20, 2002

VES-3-24-RR:IT:EC 115666 GEV

CATEGORY: CARRIER

William N. Myhre, Esq.
Preston Gates Ellis & Rouvelas Meeds LLP
1735 New York Avenue NW, Suite 500
Washington, D.C. 20006-5209

RE: Fisheries; Coastwise Trade; Waste Sludge; American Samoa; 46 U.S.C. § 12101(a); 46 U.S.C. App. § 883

Dear Mr. Myhre:

This is in response to your letter dated April 29, 2002, with enclosures, on behalf of your client, Blue North Fisheries, Inc. (“Blue North”), of Seattle, Washington, requesting a ruling confirming your understanding of the applicable fisheries and coastwise laws regarding the transportation and dumping of waste sludge by a registry or foreign-flag vessel. The ruling you seek is set forth below.

FACTS:

Blue North is engaged in the business of transporting and dumping waste sludge

As defined herein, the term “waste sludge” means the “Dissolved Air Flotation Sludge, Cooker Juice and Press Liquor” (substantially contaminated waste water) as set forth in the Marine Protection, Research and Sanctuaries Act § 102 Ocean Dumping Permit (OD98-01 Special) issued to StarKist Samoa, Inc. incidentally generated by tuna processing plants in Pago Pago, American Samoa. These activities are conducted pursuant to valid Marine Protection, Research and Sanctuaries Act § 102 Ocean Dumping Permits (Exhibit 1 of your letter) issued by the Environmental Protection Agency (EPA) pursuant to the Marine Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. § 1401 et seq.) to StarKist Samoa, Inc. and Chicken of the Sea Samoa Packing Company.

Blue North now intends to purchase and operate another vessel to pick up, transport and dump waste sludge on trips originating from Pago Pago, American Samoa, to points between approximately four and seven nautical miles from the shore of American Samoa. At no time will the vessel transport any fish or fish products. The waste sludge is not disposed of at a fixed point; rather, pursuant to the EPA permit requirements, the waste sludge must be dispersed in the ocean from the vessel over an extended geographic area of several miles as the vessel travels at a maximum speed of 10 knots.

ISSUES:

1. Whether the transportation of waste sludge from a tuna processing facility in American Samoa to an area between approximately 4 –7 miles from the shore of American Samoa where it is to be dumped in the ocean constitutes an engagement in the “fisheries” as defined in 46 U.S.C. § 12101(a) for which a fisheries endorsement is required pursuant to 46 U.S.C. § 12108.

2. Whether the transportation of waste sludge from a tuna processing facility in American Samoa to an area between approximately 4 –7 miles from the shore of American Samoa where it is to be dumped in the ocean constitutes an engagement in the coastwise trade within the meaning of 46 U.S.C. App. § 883 for which a coastwise endorsement is required pursuant to 46 U.S.C. § 12106.

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 United States EEZ, as well as the catching-related activities provided for in the former definition. Accordingly, the definition of fisheries, now set forth in 46 U.S.C. § 12101(a), 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. (Emphasis added)

The U.S. EEZ is defined in Presidential Proclamation 5030 of March 10, 1983 (48 FR 10605), as extending outward for 200 nautical miles from the baseline from which the territorial sea is measured. The term “United States” is defined in 46 U.S.C. § 2101(44) as, “...the States of the United States, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Northern Mariana Islands, and any other territory or possession of the United States.”

Title 46, United States Code, § 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., the Magnuson Fishery Conservation and Management Act of 1976 (MFCMA), 16 U.S.C. 1801 et seq., administered by the Department of Commerce, NOAA, National Marine Fisheries Service (NMFS) under which a foreign vessel may obtain a permit from NMFS to engage in fishing in the EEZ). 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. Section 12108(c), provides that a certificate of documentation with a fishery endorsement to engage in fishing in the territorial sea and fishery conservation zone adjacent to Guam, American Samoa, and the Northern Mariana Islands may be issued to a vessel that: (1) is less than two hundred gross tons; (2) was not built or rebuilt in the United States; (3) is eligible for documentation; and (4) otherwise qualifies under the laws of the United States to be employed in the fisheries.

Accordingly, vessels meeting the above four requirements are permitted to be documented under the laws of the United States pursuant to 46 U.S.C. § 12108(c) and engage in the fisheries within the territorial sea and fishery conservation zone of American Samoa. The word "adjacent" as used in the above statute includes the territorial sea and fishery conservation zone of American Samoa and does not refer to waters beyond those specific limits.

With respect to the scenario under consideration, at the outset we note that the vessel in question will be acting solely as a conveyance for disposal purposes. No processing will be taking place aboard the vessel inasmuch as this waste sludge will be a by-product of the processing operations which will already have occurred at the shoreside processing plants in Pago Pago. Consequently,
whether the vessel would be considered to be engaging in an activity falling within the definition of “fisheries” thereby requiring a fisheries endorsement as discussed above is dependent upon whether the waste sludge to be transported constitutes “fish” for purposes of 46 U.S.C. § 12101(a). It is our position that it does not.

As noted above, the waste sludge in question is essentially contaminated wastewater that is an incidental, valueless, by-product of land-based processing plants. The fact that it is devoid of commercial worth is evidenced by its being discharged at sea. Such waste sludge does not constitute, nor can it be equated with, fish. Consequently, the vessel cannot be said to be “transporting...fish” within the meaning of 46 U.S.C. § 12101(a) and therefore is not required to be endorsed for the fisheries pursuant to 46 U.S.C. § 12108.

In regard to the second issue for our consideration, we note that title 46, United States Code Appendix, § 883 (46 U.S.C. App. § 883, the merchandise coastwise law 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 one that is coastwise-qualified (i.e., U.S.-built, owned and documented).

However, pursuant to 48 U.S.C. § 1664, the provisions of the coastwise laws, including 46 U.S.C. App. § 883, are inapplicable to American Samoa. Consequently, a vessel documented with a registry endorsement pursuant to 46 U.S.C. § 12105, or a foreign-flagged vessel, may engage in the transportation of waste sludge as proposed.

HOLDINGS:

1. The transportation of waste sludge from a tuna processing facility in American Samoa to an area between approximately 4 –7 miles from the shore of American Samoa where it is to be dumped in the ocean does not constitute an engagement in the “fisheries” as defined in 46 U.S.C. § 12101(a) for which a fisheries endorsement is required pursuant to 46 U.S.C. § 12108.

The transportation of waste sludge from a tuna processing facility in American Samoa to an area between approximately 4 –7 miles from the shore of American Samoa where it is to be dumped in the ocean does not constitute an engagement in the coastwise trade within the meaning of 46 U.S.C. App. § 883 for which a coastwise endorsement is required pursuant to 46 U.S.C. § 12106. Pursuant to 48 U.S.C. § 1664, the coastwise laws, including 46 U.S.C. App. § 883, are inapplicable to American Samoa.

Sincerely,

Jeremy Baskin

Previous Ruling Next Ruling