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HQ 115862





November 19, 2002

VES-7-03-RR:IT:EC 115862 GEV

CATEGORY: CARRIER

Peter H. Flourney, Esq.
International Law Offices
740 North Harbor Drive
San Diego, California 92101

RE: Nicholson Act; Transshipment; 46 U.S.C. App. 251(a)

Dear Mr. Flourney:

This is in response to your letter dated July 5, 2002, on behalf of your client, the Western Fishboat Owners Association (“WFOA”), seeking our opinion with respect to the applicability of the Nicholson Act to their proposed operation. Our ruling on this matter is set forth below.

FACTS:

The WFOA consists of approximately 500 vessels which catch albacore tuna by trolling the surface. The vessels are home ported primarily in California, Oregon and Washington. Some of the vessels are smaller than 50 feet and do not fish at great distances from the West Coast. However, a great number of the vessels which are larger than 50 feet fish for albacore tuna on the high seas. The fishing begins in May or early June to the west of the dateline and then the vessels, following the fish as they head toward the West Coast of North America in August and September, eventually come close enough to the coast at the end of the season to land their fish in U.S. ports.

However, since these are small capacity vessels, rather than having to return to the West Coast, Hawaii, or American Samoa with their catch while fishing on the high seas earlier in the season, these vessels transship all or part of their catch on foreign refrigerated carriers. You state that this has been a long-standing practice since there are no U.S. carriers available for this work.

In past years as much as 85% of the fish caught by U.S.-flag vessels so transshipped has gone to canneries in American Samoa. More recently, however, a larger proportion of the 15,000 or so tons caught by U.S. albacore vessels in the North Pacific has been sold to European buyers. Some of this fish is landed on the West Coast by the U.S. vessel which caught the fish, loaded into containers, and then shipped to a country in the European Union. However, by the 2001 season 43% of the U.S. surface-caught albacore went to the export market, primarily the EU. Thus, with a greater amount of fish going not to American Samoa, but rather to Europe, it has recently been critical to WFOA members to find a way to transship fish caught on the high seas to the West Coast of the United States for subsequent transshipment to Europe.

You state that since there are no U.S. carriers who do this work, arrangements are being made for a foreign flag vessel, possibly from the Russian Commonwealth, to take U.S.-caught fish on board on the high seas and land them in Adak, Alaska.

ISSUE:

Whether the Nicholson Act (46 U.S.C. App. § 251(a)) prohibits a foreign-flag vessel, laden with fish caught by U.S.-flag vessels and fisherman and transferred to the foreign-flag vessel on the high seas, from landing that fish in a U.S. port.

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. It provides, in pertinent part, as follows:

“Except as otherwise provided by treaty or convention to which the United States is a party, no foreign-flag vessel shall,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.” (Emphasis added)

With respect to your client’s operations, at the outset we note your reference to American Samoa. In this regard you should know that the provisions of the Nicholson Act have long-been deemed inapplicable to American Samoa. (See Customs Marine Circular No. 124, dated June 12, 1953) Consequently, the landing of fish in American Samoa by foreign-flag vessels is not violative of that statute.

In regard to the treaty or convention exemption provision referenced above, only two such pacts currently exist, neither of which addresses your client’s concerns. One, the “Halibut Fishing Vessel Convention between the United States and Canada”, signed on March 24, 1950 (Treasury Decision (T.D.) 52862), only permits Canadian fishing vessels engaged in the North Pacific halibut fishery to land their catches of halibut and sablefish in United States ports. The other, “The Treaty Between the Government of the United States and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges”, signed on July 29, 1981 (T.D. 81-227), originally permitted Canadian fishing vessels to land their catches of albacore tuna only in those ports named in Annex B of the treaty (i.e., Astoria, Oregon; Bellingham, Washington; Coos Bay, Oregon; and Crescent City, California). On October 10, 1997, the Governments of the United States and Canada amended this treaty by adding the following United States ports to those listed in Annex B: Westport, Washington; Newport, Oregon; and Eureka, California, the latter of which replaced Crescent City, California. Although the scenario you proffer pertains to albacore tuna, the terms of this treaty are inapplicable to your client’s proposal as described herein.

The express language of the Nicholson Act, however, is controlling in this matter. It provides that absent the aforementioned treaty or convention exemption, fish taken on board a foreign-flag vessel on the high seas may not be landed in a U.S. port notwithstanding the fact that such fish were caught by, and transshipped from, a U.S.-flag vessel. Foreign-flag vessels would therefore be proscribed from operating in the manner your client proposes. This determination is reflective of Customs long-held position with respect to the administration of this law in the circumstances currently under consideration. (See Customs ruling letter 110637, dated April 9, 1990)

HOLDING:

The Nicholson Act (46 U.S.C. App. § 251(a)) prohibits a foreign-flag vessel, laden with fish caught by U.S.-flag vessels and fisherman and transferred to the foreign-flag vessel on the high seas, from landing that fish in a U.S. port.

Sincerely,

Georgina Grier

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