VES-7-03 CO:R:P:C 109375/109383 PH
Myron H. Nordquist, Esq.
Kelley, Drye & Warren
1330 Connecticut Avenue, NW.
Washington, D.C. 20036
RE: Applicability of 46 U.S.C. App. 251(a) to the
transshipment in territorial waters of fish products received
on the high seas by the transshipping vessel as whole fish
and processed on board that vessel
Dear Mr. Nordquist:
This in response to your letters of February 19, 1988, in
which you request a ruling on the applicability of the
Nicholson Act to certain described fishing operations.
FACTS:
You state that your client plans to enter into a fishery
joint venture. In this joint venture, your client will
organize United States-flag fishing vessels to catch fish and
transfer them while still in the cod end to a foreign-flag
processing ves- sel in the United States exclusive economic
zone (EEZ) off the East Coast of the United States. Once
aboard the foreign-flag processing vessel, the transferred
whole fish will be processed into various fishery products,
including fish oil.
You state that your client wishes to transport this
processed fish to one of two locations: (1) a sheltered
area that is with- in United States territorial waters but is
not a "port" in any physical sense whatsoever; or (2) a
United States port as that term is commonly understood. At
one of these locations your client plans to have the
processing vessel transfer the fish oil to a foreign-flag
transport vessel which would then depart for an overseas port
with the fish oil as cargo. During the course of this
transfer of the fish oil, you state that the processing
vessel would not touch "United States territory" in any way.
For purposes of this inquiry, you ask that we assume that
the joint venture complies with all requirements of United
States law other than the provisions of the Nicholson Act.
ISSUES:
1. Is the transshipment at a point in United States
territorial waters which is not a "port" in any physical
sense whatsoever of fish products from a foreign-flag vessel
to another vessel for transportation abroad a "landing in a
port of the United States," as that phrase is used in 46
U.S.C. App. 251(a)?
2. Does 46 U.S.C. App. 251(a) prohibit the landing by a
foreign-flag vessel in a port of the United States of fish
prod- ucts processed on that vessel from fish it received
whole from catching vessels on the high seas?
LAW AND ANALYSIS:
Under the Act of September 2, 1950, as amended (chapter
842, 64 Stat. 577; 46 U.S.C. App. 251(a), often called the
Nicholson Act):
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
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.
For purposes of this statute, the high seas are those
waters outside the territorial waters of the United States or
those of any other nation. The territorial waters of the
United States consist of the territorial sea, defined as the
belt, 3 nautical miles wide, adjacent to the coast of the
United States and seaward of the territorial sea baseline.
The Customs Service has consistently held that the
transshipment in United States territorial waters of fish or
fish products caught or taken on board on the high seas,
including the EEZ of the United States, from the foreign-flag
vessel which caught or took on board the fish or fish
products to another ves- sel, whether or not the fish or fish
products are to be exported, is a landing of the fish or fish
products prohibited by 46 U.S.C. App. 251(a). We have so
held regardless of whether the point in territorial waters
where transshipment occurs is what you describe as a "port"
in a "physical sense" (see, e.g., our ruling dated January
26, 1981, file number 104779, copy enclosed for your
convenience).
Title 46, United States Code Appendix section 251(a),
prohibits the landing by a foreign-flag vessel in a port of
the United States of: (1) its catch of fish taken on board
such ves- sel on the high seas, (2) fish products processed
from its catch of fish taken on board such vessel on the high
seas, or (3) fish or fish products taken on board such vessel
(the landing vessel) on the high seas from a vessel engaged
in fishing operations or in the processing of fish or fish
products. In the operation un- der consideration, a
foreign-flag fish processing vessel would receive whole fish
from catching vessels on the high seas and, after processing
on board the processing vessel, transship the product of that
processing (fish oil) to another vessel for transportation
abroad. In such an operation, the processing ves- sel is
clearly not: (1) landing its catch of fish taken on board
the processing vessel on the high seas, or (2) landing fish
prod- ucts processed from its catch of fish taken on board
the process- ing vessel on the high seas. Nor, you contend,
is it landing "fish ... taken on board such vessel on the
high seas ..." or "fish products taken on board such vessel
on the high seas ...." Instead, you state, the processing
vessel is transshipping the products of whole fish taken on
board the vessel on the high seas.
After thoroughly reviewing the history of 46 U.S.C. App.
251(a), we have concluded that the interpretation of section
251(a) you suggest is incorrect. Section 4311, Revised
Statutes, which was the statute amended by the Nicholson Act
in 1950 (Chapter 842, 64 Stat. 577), reserved the privileges
of vessels employed in the American fisheries to properly
documented vessels built in the United States and owned by
United States citizens (see sections 4132 and 4312, Revised
Statutes). Before enactment of the Nicholson Act, it was the
understanding of Congress that this statute and section
4.96(a), Customs Regulations of 1943, "prohibit the landing
of fish by foreign fishing vessels coming directly to United
States ports from the fishery banks (Report No. 2364, August
15, 1960, of the Senate Committee on Interstate and Foreign
Commerce). The Nicholson Act was intended to strengthen the
laws protecting the domestic fishing industry (House Report
No. 2934, August 16, 1950, set forth at 1950 U.S.C.C.A.N.
3539). Specifically, it was intended to "make impossible the
employment" of the "device" under which "foreign fishing
vessels without rights under international agreements are
able, after making their catches, to obtain documentation as
car- go vessels in their home or other foreign ports and, as
such car- go vessels, may proceed to American ports and
market their fish" (House Report No. 2934, supra).
Under the interpretation of 46 U.S.C. App. 251(a) you
suggest, a foreign-flag vessel could avoid the prohibitions
of section 251(a) by processing whole fish received on the
high seas. Clearly, this is antithetical to the purpose of
the Nicholson Act and would result in a more egregious
weakening of the protection intended under the fisheries laws
than the device the employment of which the Nicholson Act was
intended to make impossible. Consistent with the intent of
the Nicholson Act, we interpret section 251(a) to prohibit
the landing in the United States by a foreign-flag vessel of
fish products (including fish oil) that vessel has processed
from whole fish it received on the high seas. This follows
our past rulings on this issue (see, e.g., our ruling to you
dated July 20, 1983, file number 106191, copy enclosed for
your convenience).
We are, as you request, assuming that the joint venture
you describe complies with all requirements of law other
than 46 U.S.C. App. 251(a). However, we note, as you may
already be aware, that the laws relating to the United States
documentation of vessels for the fisheries have recently been
amended (see Pub- lic Law 100-239). Under this amendment,
"fisheries" is defined in 46 U.S.C. 12101 to include, in
addition to the activities formerly listed in 46 U.S.C.
12101(6), the processing, storing, and transporting (except
in foreign commerce) of fish and other listed marine life in
the navigable waters of the United States or the exclusive
economic zone.
HOLDING:
1. The transshipment anywhere in United States
territorial waters of fish products from a foreign-flag
vessel to another vessel for transportation abroad is a
"landing in a port of the United States," as that phrase is
used in 46 U.S.C. App. 251(a).
2. The landing by a foreign-flag vessel in a port of the
United States of fish products processed on that vessel from
fish it received whole from catching vessels on the high seas
is prohibited by 46 U.S.C. App. 251(a).
Sincerely,
Edward T. Rosse
Acting Director, Regulatory
Procedures and Penalties Division