CATEORY: Carriers
VES-7-03:RR:BSTC:CCI 116537 CK
Mr. R. Shawn Griggs
Mundt MacGregor L.L.P.
999 Third Avenue
Suite 4200
Seattle, Washington 98104-4082
RE: Nicholson Act; 46 U.S.C. App. §251(a)
Dear Mr. Griggs:
This is in response to your ruling request dated August 19, 2005 on behalf of your client, Dulcich, Inc., d/b/a Pacific Seafoods Group. This ruling request, which you sent to the Service Port Director of Aberdeen, Washington was forwarded to the Office of Regulations and Rulings for disposition. Our response follows.
FACTS:
Dulcich, Inc., d/b/a Pacific Seafoods Group, purchases and processes various species of fish harvested off the coast of the Pacific Northwest, including Pacific hake/whiting.
Pacific Seafoods Group states that it purchases Pacific hake/whiting that has been harvested by Canadian-flag vessels operating off the coast of Canada under the regulation of the Canadian Department of Fisheries and Oceans. It also states that the fish is harvested by Canadian vessels operating between three and twelve miles off the Canadian coast. Pacific Seafoods Group states that it is then loaded onto Canadian-flag vessels within Canada’s twelve-mile territorial sea and landed at Westport, Washington, for processing and distribution to customers of Pacific Seafoods Group.
ISSUE:
Whether the use of a foreign-flag vessel to transport fish caught in Canadian territorial waters to an U.S. port where the fish are landed constitutes a violation of 46 U.S.C. App. § 251(a).
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. Under the Nicholson Act, no foreign-flag vessel shall land in a port of the United States its catch of fish taken on board the vessel on the high seas, or fish products processed therefrom, or any fish or fish products taken on board the vessel on the high seas from a vessel engaged in fishing operations or in the processing of fish or fish products. However, U.S. Customs and Border Protection (CBP) has held that the proscription against using a foreign-flag vessel set forth in 46 U.S.C. App. § 251(a) does not prohibit its landing in the United States of fish or fish products taken on board the vessel while the vessel is within the territorial jurisdiction of a foreign country, including its territorial sea, inland waters, and ports (see Treasury Decision (T.D.) 78-431, citing T.D. 54861(21)).
Accordingly, a foreign-flag vessel is not in violation of the Nicholson Act if it lands Pacific hake/whiting at an U.S. port and said Pacific hake/whiting was taken on board the vessel in Canadian territorial waters.
HOLDING:
The landing of hake/whiting at an U.S. port by a foreign-flag vessel does not constitute a violation of 46 U.S.C. App. § 251(a), provided the fish is taken aboard the vessel in Canadian territorial waters
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers & Immigration Branch