VES-7-03/7-05 CO:R:IT:C 112287 GFM
Mr. Douglas M. Fryer, Esq.
Mikkelborg, Broz, Wells & Fryer
1001 Fourth Avenue Plaza, Suite 3300
Seattle, Washington 98154
RE: Fishing; Landing of Catch; Transshipment; Foreign Port;
Foreign Vessel; Russian Waters; Duty-Free; Entry; Surimi;
46 U.S.C. App. 251; 19 C.F.R. 4.96(f).
Dear Mr. Fryer:
This letter is in response to your request, dated April 28,
1992, for a ruling on the transportation to the United States of
surimi made from pollock caught in Russian waters.
FACTS:
In your letter, you state that the subject vessel, the F/V
ALASKA OCEAN, which currently holds a fisheries license and a
certificate of registry from the United States Coast Guard,
intends to engage in direct fishing for pollock within the
Russian Exclusive Economic Zone. While on board the vessel, said
pollock are to be processed into surimi and then off-loaded at a
Russian port. At said Russian port, the product will be loaded
aboard a foreign-flag vessel for transportation to, and landing
at, a United States port. You request a ruling to establish
whether such a transportation would violate the coastwise laws
and whether such products are subject to duty upon importation
into the United States.
ISSUES:
(1) Whether fish caught and processed in Russian waters by
a United States-flag fish-processing vessel may be off-loaded at
a Russian port and subsequently loaded aboard a foreign-flag
vessel for transportation to, and landing at, a United States
port.
(2) Whether fish caught and processed by a United States-
flag vessel in Russian waters and landed at a Russian port
without a change in condition will be afforded duty-free status
upon importation from that Russian port to the United States.
LAW AND ANALYSIS:
The Nicholson Act (46 U.S.C. App. 251) provides:
(a) Except as otherwise provided by treaty
or convention to which the United States is a
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 vessel 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.
For purposes of this statute, the high seas are those waters
outside the territorial waters of the United States or the
territorial waters of another nation. The territorial waters of
the United States include the territorial sea, defined as the
belt, three nautical miles wide, seaward of the territorial sea
baseline, and points located in internal waters, landward of the
territorial sea baseline, where the baseline and the coastline
differ (see, Headquarters Ruling Letter 111275, November 13,
1990).
Because the Nicholson Act prohibits the landing by a
foreign-flag vessel in the United States of fish or fish products
caught or received by the vessel on the high seas, the Customs
Service has ruled that the prohibition does not apply to the
landing in the United States of fish or fish products caught or
received elsewhere than the high seas (i.e. foreign territorial
waters) (Headquarters Ruling Letter 108405, June 17, 1986).
Thus, a foreign-flag vessel may land in the United States fish or
fish products that it had received in Russian territorial waters,
but not fish or fish products that it had received in the Russian
Exclusive Economic Zone (Headquarters Ruling Letter 112715,
supra; Headquarters Ruling Letter 108405, supra; see also, 19
C.F.R. 4.96(f).
Customs Regulations provide, however, that before such fish
may be landed by a non-convention cargo vessel (as defined in the
regulations, but including all non-Canadian cargo vessels), the
master shall satisfy the district 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 of the vessel, of whom the person next in authority to
the master shall be one, or other evidence acceptable to the
district director that establishes the place of lading (19 C.F.R.
4.96(f)). In the present case, as the fish products in question
are to be received not on the high seas, but at a Russian port,
provided the above requirements are satisfied, the contemplated
shipment of said fish products would not constitute a violation
of the Nicholson Act or the coastwise laws.
You also inquire as to whether the fish products in question
would be allowed to forego formal entry and be afforded duty-
free status upon importation into the United States. Section
10.78(d) of the Customs Regulations states that "[p]roducts of an
American fishery shall be entitled to free entry although
prepared, preserved, or otherwise changed in condition, provided
the work is done at sea by the master or crew of the fishery or
by persons employed by and under the supervision of the master or
owner of the fishery." An "American fishery" is defined in 19
C.F.R. 10.78(b) as "a fishing enterprise conducted under the
American flag by vessels of the United States on the high seas or
in foreign waters in which such vessels have the right by treaty
or otherwise, to take fish or other marine products and may
include a shore station operated in conjunction with such vessels
by the owner or master thereof." In the present case, the United
States flag processing vessel qualifies as an "American fishery."
Provided all fish-processing aboard this fishery occurs prior to
its arrival at the Russian port, the conditions of 19 C.F.R.
10.78(d) would be satisfied and free entry would be granted.
HOLDINGS:
(1) The transportation of fish caught and processed by a
United States-flag fish-processing vessel in Russian waters which
are subsequently off-loaded at a Russian port and loaded aboard a
foreign-flag vessel for landing at a United States port does not
constitute a violation of the coastwise laws.
(2) Fish products caught and processed by a United States-
flag vessel in Russian waters which are landed at a Russian port
without a change in condition will be accorded duty-free status
provided formal entry is made at the time of importation from
that Russian port to the United States.
Sincerely,
B. James Fritz
Chief