VES-7-03/7-05 CO:R:IT:C 111905 JBW
Mr. Elwood Peterson
International Shipping Services, Inc.
Market Place, Two
2001 Western Avenue, Suite 430
Seattle, Washington 98121
RE: Fishing; Landing of Catch; Transhipment; Foreign Vessel; 46
U.S.C. App. 251; 19 C.F.R. 4.96.
Dear Mr. Peterson:
This letter is in response to your request, dated September
17, 1991, for a ruling on the transportation to the United States
of frozen fish caught in foreign waters or on the high seas.
FACTS:
In your letter, you propose two scenarios regarding the
transportation to the United States of frozen fish caught in
foreign waters or on the high seas. The first scenario involves
fish caught and processed in Russian waters; a United States-flag
vessel then loads the fish in a Russian port onto a foreign-flag
cargo vessel for transportation to the United States. You ask
whether such a transportation violates either the Jones Act or
the Nicholson Act. You also ask whether the fish would be
considered to be of United States or foreign origin. The second
scenario involves the transhipment in United States waters to a
United States-flag cargo vessel of fish caught in Russian waters
by a United States-flag fish processor. In a subsequent
correspondence, dated November 20, 1991, you request that we
advise you whether fish caught by a Polish fishing vessel can be
transhipped outside of the United States exclusive economic zone
(EEZ) to a Japanese-flag vessel for transportation to the United
States.
ISSUES:
(1) Whether fish caught and processed in Russian waters by
a United States-flag fish processor may be loaded in a Russian
port onto a foreign-flag cargo vessel for transportation to the
United States.
(2) Whether fish caught by a Polish fishing vessel can be
transhipped outside of the United States EEZ to a Japanese-flag
vessel for transportation to the United States.
(3) Whether fish caught and processed in Russian waters by
a United States-flag fish processor may be transhipped in United
States waters to a United States-flag cargo vessel for
transportation to the United States.
LAW AND ANALYSIS:
The Nicholson Act (46 U.S.C.A. App. 251 (West Supp. 1991))
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, dated 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). Headquarter Ruling Letter 108405, dated 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 the Russian EEZ. Id.; see also 19 C.F.R. 4.96(f) (1991).
The Customs Regulations provide, however, that before such fish
may be landed by a nonconvention 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). Finally, because the fish are shipped from a
point outside of United States territorial waters, we find no
violation of the Jones Act (46 U.S.C.A. App. 883 (West Supp.
1991)).
The Commercial Fishing Industry Vessel Anti-Reflagging Act
of 1987, Pub. L. No. 100-239, 3, 101 Stat. 1778 (1988), defines
the term fisheries to include:
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.
46 U.S.C.A. 12101(a)(1) (West Supp. 1991). United States
statutory law limits, subject to other laws of the United States
regulating the fisheries, employment in the fisheries as defined
above to vessels issued certificates of documentation with
fishery endorsements. 46 U.S.C.A. 12108(b) (West Supp. 1991).
For a fishery endorsement, the vessel must be eligible for
documentation, that is, over five net tons and owned by a United
States citizen, and be built in the United States. 46 U.S.C.A.
12108(a) (West Supp. 1991).
The statute thus permits United States vessels documented
for the fisheries to take on fish outside the territorial waters
and to unload the fish in a United States port. See Headquarters
Ruling Letter 110133, dated August 28, 1989 (interpreting 46
U.S.C.A. App. 251(a); 46 U.S.C.A. 12101(a)(1) & 12108).
Moreover, the current position of the Customs Service is that a
United States-flag, foreign-built vessel, which cannot be
documented for the coastwise or fisheries trade, 46 U.S.C.A.
12106(a), 12108(a), is not prohibited from landing in a United
States port fish caught or received at a point outside of the
United States EEZ. Id.
From these principles, we conclude that fish caught by a
Polish fishing vessel cannot be transhipped outside of the
United States EEZ to a Japanese-flag vessel for transportation to
the United States, unless such fish are transhipped in the
territorial waters of another nation. We also conclude that fish
caught and processed in Russian waters by a United States-flag
fish processor may not be transhipped in United States waters,
both territorial and EEZ, to a United States-flag cargo vessel
for transportation to the United States, unless the receiving
vessel has a fisheries endorsement. If the fish are transhipped
in territorial waters, then the receiving ship must have a
coastwise endorsement in addition to a fisheries endorsement.
The question has arisen, however, whether a vessel not
documented for the fisheries may transport fish or fish products,
caught or processed outside of the EEZ, to a point within the
United States EEZ pursuant to 46 U.S.C.A. 12108. We call your
attention to a notice in the Federal Register in which the
Customs Service has solicited comments on the interpretation of
rules regarding the transshipment and transportation of tuna
caught outside the EEZ. 54 Fed. Reg. 36038 (Aug. 31, 1989). It
is currently the position of the Customs Service that vessels not
documented for the fisheries may transport or transship in the
United States EEZ fish caught outside of the United States EEZ.
Insofar as the final interpretive rule may affect your proposed
activities, we advise you to monitor future notices.
In regard to commercial fishing operations, the Customs
Service has held that the country of origin of fish caught
outside the territorial waters of the United States, whether or
not caught in a fisheries zone or EEZ, is considered to be that
of the flag of the catching vessel. Headquarters Ruling Letter
110343, dated September 20, 1989. Further questions regarding
the origin and dutiability of fish products are not within the
purview of this branch. Questions should be addressed to:
Director
Commercial Rulings Division
Office of Regulations and Rulings
United States Customs Service
Washington, D.C. 20229
HOLDINGS:
(1) A foreign-flag vessel may land in the United States
fish or fish products that it had received in Russian territorial
waters, but not the Russian EEZ, provided requirements
established under 19 C.F.R. 4.96(f) are met.
(2) Fish caught by a Polish fishing vessel cannot be
transhipped to a Japanese-flag vessel for transportation to the
United States, unless such fish are transhipped in the
territorial waters of another nation.
(3) Fish caught and processed in Russian waters by a United
States-flag fish processor may not be transhipped in United
States waters, both territorial and EEZ, to a United States-flag
cargo vessel for transportation to the United States, unless such
vessel has a fisheries endorsement. If the fish are transhipped
in territorial waters, then the receiving ship must have a
coastwise endorsement in addition to a fisheries endorsement.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch