VES-3/7-CO:R:IT:C 112392 GEV
Lieutenant Commander Jeffrey D. Stieb
Staff Attorney, Vessel Documentation and
Tonnage Survey Section, Merchant Vessel
Inspection and Documentation Division
United States Coast Guard
2100 Second Street, S.W.
Washington, D.C. 20593-0001
RE: Fisheries; Coastwise Trade; U.S.-Flag Processor;
46 U.S.C. 12101(a); 46 U.S.C. App. 883
Dear Lieutenant Commander Stieb:
This is in response to your letter dated July 24, 1992 (your
file: G-MVI-5/13 16713/31/2, with enclosures) forwarding a
request for a ruling from the Seventeenth Coast Guard District in
Juneau, Alaska. Our ruling on this matter is set forth below.
FACTS:
The U.S. Coast Guard Cutter YOCONA boarded the vessel ALL
ALASKAN (Official No. 248773) on December 14, 1991, in position
56-37N 169-34W which is north of St. George Island, Alaska,
approximately 1400 yards from shore in the Bering Sea. The
vessel is a U.S.-flag 363' processor, documented only for the
fisheries. The vessel is currently restricted from engaging in
the coastwise trade due to too much foreign involvement in the
stock ownership.
The boarding officer provided a synopsis of the vessel's
movements and activities from November 1 - December 11, 1991, as
follows:
DATE POSITION ACTIVITY
1-17 Nov. Anchored 2.6NM On-loading crab at Port Moller
inside Doe Pt.
15 Nov. Same Off-loading crab to HAKUYO MARU
17-26 Nov. Anchored 0.75NM On-loading crab Port Moller
S. of Gravel Pt.
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26 Nov. Moved to 1.0NM unknown, possibly for repairs
W. of Entrance Pt.
27 Nov.- Anchored 0.75 S. On-loading crab Port Moller
8 Dec. of Entrance Pt.
4-8 Dec. Same Off-loaded crab to vessel JACHA
11 Dec. 56-37N 169-34W Anchored N. of St. George Island
Port Moller is located on the Alaska Peninsula and St.
George Island is approximately 300 nautical miles to the
northwest in the Bering Sea. In order to reach St. George Island
it is necessary to transit the high seas.
The vessel did not completely off-load crab on November 15,
1991. In fact, it moved three times prior to off-loading to the
JACHA from December 4-8, 1991.
In addition, records from the vessel also indicate that its
crew sold fuel, stores, food and bait to catcher vessels in Port
Moller. According to the master the bait was obtained from
Japanese trampers, the vessel's purser stated stores and food
were purchased in Seattle through the company purchasing agent,
and fuel was purchased at Port Moller from Petro Marine Barge
FNT-180.
Furthermore, copies of "Material Requisition" forms obtained
from the master indicate the vessel's crew sold bait, stores,
food and fuel to the ALASKA TRADER between November 14 - December
6, 1991 within the three mile U.S. territorial sea. As noted
above, the vessel moved at least three times within the Port
Moller area during this time period.
ISSUES:
1. Whether a U.S-flag processing vessel not eligible to
receive a coastwise endorsement pursuant to 46 U.S.C. 12106 is
engaged in the coastwise trade in violation of 46 U.S.C. App. 883
when it lades crab, processes it, then unlades the processed crab
at various locations entirely within the U.S. territorial sea.
2. Whether a U.S.-flag processing vessel not eligible to
receive a coastwise endorsement pursuant to 46 U.S.C. 12106 is
engaged in the coastwise trade in violation of 46 U.S.C. App. 883
when it lades crab, processes it, then unlades portions of the
processed crab at various locations entirely within the U.S.
territorial sea, then moves to another location within the U.S.
territorial sea after transiting the high seas to unlade the
remainder of the processed crab.
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3. Whether a U.S.-flag processing vessel not eligible to
receive a coastwise endorsement pursuant to 46 U.S.C. 12106 is
engaged in the coastwise trade in violation of 46 U.S.C. App. 883
when it lades bait, stores, food and fuel at either a U.S. port
or on the high seas, and transports those items for sale to
various locations within the U.S. territorial sea where they are
unladed.
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 new definition of fisheries, now 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.
The 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 above definition of fisheries supersedes the definition
of "fishing" found in section 4.96(a)(5), Customs Regulations (19
CFR 4.96(a)(5) which included the transportation of marine
products by a vessel other than the taking vessel under the
complete control and management of a common owner or bareboat
charterer. It should be noted that this superseded definition
was applicable only to the transportation of marine products
taken and transferred on the high seas and did not provide any
exception to the coastwise laws.
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
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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., over 5 net tons
and owned by a U.S. 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.
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 has been found to
apply even to the transportation of merchandise from point to
point within a harbor. Pursuant to 19 U.S.C. 1401(c), the word
"merchandise" means goods, wares and chattels of every
description and includes fish and fish products. We note,
however, that Public Law 97-389 (96 Stat. 1954) amended section
883 to exclude from its application "...supplies aboard United
States documented fish processing vessels, which are necessary
and used for the processing or assembling of fishery products
aboard such vessels..."
The coastwise laws generally apply to points in the
territorial sea, defined as the belt, three nautical miles wide,
seaward of the territorial sea baseline, and to points located in
internal waters, landward of the territorial sea baseline, in
cases where the baseline and the coastline differ. (It should be
noted that although Presidential Proclamation 5928 of December
27, 1988, extended the U.S. territorial sea to 12 miles, this
extension is only for international purposes. Thus, Customs
enforcement activities are not altered as a result of the
proclamation.)
In regard to Issues 1, 2 and 3 above, we note that the
operation of the vessel in question involved the transportation
of various articles between points within the U.S. territorial
sea. Counsel for the vessel owner contends, in part, that
although this transportation between coastwise points was done by
a vessel which did not meet the 75% U.S. ownership requirement
for corporate-owned vessels engaging in the coastwise trade
pursuant to 19 U.S.C. App. 802, it is nonetheless permissible in
view of the fact that the vessel in question is documented for
the fisheries and that such "...a vessel which engages in the
transportation only of fish does not require a coastwise trade
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license." (See page 1 of counsel's letter marked "Enclosure 2")
For the reasons set forth below, we are not in accord with this
position.
The legislative history of the Anti-Reflagging Act of 1987
indicates that one of the purposes of its enactment was to
reconcile differences between United States fisheries laws and
maritime law. In the House Report on this Act (H.R. Rep. No.
100-423, 100th Cong., 1st Sess. (1987); published at 1987
U.S.C.C.A.N. 3245), this is described as the "genesis of the
legislation." The aforementioned reconciliation, however, cannot
be construed as means of superseding or overriding the coastwise
laws. It should be noted that Customs, in rulings involving the
coastwise laws (specifically 46 U.S.C. App. 883), has stated that
there is no transportation in violation of section 883 unless
there is both a lading and an unlading at a coastwise point,
based on the precise reading that must be given to all punitive
statutes. (see 19 CFR 4.80b(a)) Section 883 provides, in
pertinent part, that "[n]o merchandise shall be transported by
water, or by land and water,...between points in the United
States...embraced within the coastwise laws." The clear language
of section 883 contemplates both a lading at a coastwise point
and an unlading at a coastwise point. This is the scenario set
forth in Issues 1 , 2 and 3 above. The definition of "fisheries"
in 46 U.S.C. 12101(a)(1) includes, inter alia, the transportation
of shellfish in the EEZ and the navigable waters of the United
States. It does not refer to a coastwise movement, merely a
transportation (see Customs rulings 111018, 111630, 111639 and
111760).
Accordingly, in regard to Issues 1 and 2, the transportation
by the processing vessel of crab from its point of lading in the
U.S. territorial sea to various locations within the U.S.
territorial sea where the crab is unladed after processing on
board the vessel constitutes coastwise trade pursuant to 46
U.S.C. App. 883. The fact that a vessel at some time during the
course of a coastwise movement transits the high seas is of no
consequence.
In regard to Issue 3, any article laded outside of U.S.
territorial waters and unladed within U.S. territorial waters is
not considered to have moved coastwise. Accordingly, the bait in
question, if laded from Japanese trampers outside the U.S.
territorial sea and subsequently unladed at a coastwise point,
would not be transported in violation of 46 U.S.C. App. 883. We
note, however, that the stores and food (purchased in Seattle)
and the fuel (purchased at Port Moller), all of which were sold
to the ALASKA TRADER within the U.S. territorial sea, do appear
to have been transported coastwise. Although these items would
not ordinarily be considered merchandise for purposes of 46
U.S.C. App. 883, the fact that they were not used by the ALL
ALASKAN but were being transported for sale renders
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applicable the restrictive provisions of that statute. This
rationale is supported by the Public Law 97-389, cited above,
wherein there exists an exclusion from the applicability of
section 883 for "...supplies aboard United States documented fish
processing vessels, which are necessary and used for the
processing or assembling of fishery products aboard such
vessels..." (emphasis added)
HOLDINGS:
1. A U.S.-flag processing vessel not eligible to receive a
coastwise endorsement pursuant to 46 U.S.C. 12106 is engaged in
the coastwise trade in violation of 46 U.S.C. App. 883 when it
lades crab, processes it, then unlades the processed crab at
various locations entirely within the U.S. territorial sea.
2. A U.S.-flag processing vessel not eligible to receive a
coastwise endorsement pursuant to 46 U.S.C. 12106 is engaged in
the coastwise trade in violation of 46 U.S.C. App. 883 when it
lades crab, processes it, then unlades portions of the processed
crab at various locations entirely within the U.S. territorial
sea, then moves to another location within the U.S. territorial
sea after transiting the high seas to unlade the remainder of the
processed crab.
3. A U.S.-flag processing vessel not eligible to receive a
coastwise endorsement pursuant to 46 U.S.C. 12106 is engaged in
the coastwise trade in violation of 46 U.S.C. App. 883 when it
lades bait, stores, food and fuel at a U.S. port and transports
those items for sale to various locations within the U.S.
territorial sea where they are unladed.
Sincerely,
B. James Fritz
Chief