HQ 116623 - 46 U.S.C. § 12101; 46 U.S.C. § 12108; 46 U.S.C. App. § 883; 19 U.S.C. § 1401; 19 CFR § 4.80; Fisheries; Aquatic Plant Harvesting Vessel; Coastwise Trade - United States International Trade Commision Rulings

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HQ 116623

May 3, 2006

VES-3/7-01-RR:BSTC:CCI 116623 IDL

CATEGORY: CARRIER

Ronald H. Smith
Buyer
Huron-Clinton Metropolitan Authority
13000 High Ridge Drive
Brighton, Michigan 48114-9058

RE: 46 U.S.C. § 12101; 46 U.S.C. § 12108; 46 U.S.C. App. § 883; 19 U.S.C. § 1401; 19 CFR § 4.80; Fisheries; Aquatic Plant Harvesting Vessel; Coastwise Trade

Dear Mr. Smith:

This is in response to your letter, dated March 6, 2006, and a supplemental letter submitted by your counsel, dated April 26, 2006, concerning the provisions of the Jones Act as they pertain to the use of a vessel that skims floating weeds. Our ruling on this matter is set forth below.

FACTS:

The Huron-Clinton Metropolitan Authority (“HCMA”) administers thirteen “Metroparks.” The HCMA is contemplating a purchase of a Canadian-built vessel to control the floating weeds within the confines of a marina at the Lake Erie Metropark, located on the U.S.-side of Lake Erie, at the mouth of the Detroit River.

The weed skimmer is “designed to skim floating weeds, store the weeds on the deck, and off-load onto a trailer or loader to be deposited on a small section of the marina parking lot to dry and compost.” The size of the vessel is 36’ overall, with 10’ maximum operating width. The vessel weighs approximately 10,000 pounds, with a carrying capacity of 200 cubic feet or 3,500 pounds.

You inquired whether the vessel would require a coastwise endorsement, and also raised questions concerning manufacturer requirements for the vessel.

ISSUE:

Whether the harvesting and transportation of aquatic plants by a foreign-built vessel constitutes an engagement in the fisheries within the meaning of 46 U.S.C. § 12101(a) or in the coastwise trade within the meaning of 46 U.S.C. App. § 883?

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 Exclusive Economic Zone (EEZ), as well as the catching-related activities provided for in the former definition. Accordingly, the definition of fisheries, set forth in 46 U.S.C § 12101(a)(1) 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]

With regard to an aquatic plant harvesting vessel, U.S. Customs and Border Protection (CBP) has long-held that such a vessel is engaged in the fisheries within the meaning of 46 U.S.C. § 12101(a)(1) (see C.S.D. 89-85 and rulings 110104 (April 19, 1989) and 110613 (April 5,1990)).

Title 46, United States Code, section 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., 16 U.S.C. § 1801, et seq., under which a foreign vessel may obtain a permit from the National Marine Fisheries Service to engage in fishing in the EEZ). Pursuant to 19 U.S.C. § 1401(a), the word "vessel" includes every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft.

Under 46 U.S.C. § 12108(a), only a vessel eligible for documentation (i.e., at least 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), only a vessel so endorsed may engage in the fisheries. With regard to vessels of less than 5 net tons, CBP has long held that such vessels, if owned by United States citizens or by resident aliens and numbered pursuant to 46 U.S.C. § 12301 et seq., may engage in the fisheries even if foreign-built (see e.g., Treasury Decision (T.D.) 56382(6)). Legislative support for this provision may be found in 16 U.S.C.

Further, Title 46, United States Code Appendix, section 883 (46 U.S.C. App. 883), the coastwise merchandise statute 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 a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States (i.e., a coastwise-qualified vessel). This statute applies even to the transportation of merchandise from point to point within a harbor. (See 19 CFR 4.80(a)). Pursuant to 19 U.S.C. § 1401(c), the word "merchandise" means goods, wares and chattels of every description and includes merchandise the importation of which is prohibited. Furthermore, Public Law 100-329 (102 Stat. 588) amended section 883 to apply to the transportation of "valueless material..."

It is apparent that the subject vessel is engaged in the fisheries within the meaning of 46 U.S.C. § 12101(a)(1). If it is foreign-built, regardless of its tonnage, it is not eligible for documentation for the fisheries under 46 U.S.C. § 12108(a). We note, however, that if it is less than 5 net tons and numbered pursuant to 46 U.S.C. § 12301 et seq. it is considered a vessel of the United States pursuant to 16 U.S.C. § 1802(43)(B) and may engage in the fisheries provided it is owned by United States citizens or by resident aliens.

In regard to any vessel (other than a harvesting vessel) used in U.S. territorial waters solely for transporting harvested vegetation to shore, it is apparent that such a vessel is engaged in the coastwise trade. Pursuant to section 4.80(a)(2), Customs Regulations (19 CFR 4.80(a)(2)), no foreign-built vessel, regardless of its tonnage, may engage in the coastwise trade.

Finally, your questions concerning the manufacturing of the vessel should be directed to the U.S. Coast Guard, at the following address:

U.S. Coast Guard
National Vessel Documentation Center
2039 Stonewall Jackson Drive
Falling water, West Virginia 25419

HOLDING:

The harvesting and transportation of aquatic plants by a foreign-built vessel constitutes an engagement in the fisheries within the meaning of 46 U.S.C. § 12101(a), and is prohibited pursuant to 46 U.S.C. § 12108(a), unless the vessel is less than 5 net tons, is numbered pursuant to 46 U.S.C. § 12301 et seq. and is owned by United States citizens or resident aliens. The use of a foreign-built vessel for the sole purpose of transporting aquatic plants constitutes an engagement in the coastwise trade within the meaning of 46 U.S.C. App. § 883, and is prohibited.

Sincerely,

Glen E. Vereb
Chief

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