VES-7-03 CO:R:P:C 110917 JBW
Mr. Charles C.H. Lee
6220 Bret Hills Drive
Paradise Valley, Arizona 85253
RE: Application of United States laws governing fishing to
the landing or transporting of fish caught in
international waters by a foreign-flag or a United
States-flag vessel
Dear Mr. Lee:
Your letter of January 23, 1990, addressed to the
United States Coast Guard, has been referred to this office for
reply concerning the application of the Nicholson Act, 46
U.S.C.A. App. 251 (West Supp. 1990), and other laws regulating
fishing to your proposed activities.
FACTS:
In your letter, you state that Japanese and Taiwanese
fishing vessels are fishing for tuna in international waters near
Hawaii. This tuna is transhipped on the high seas to a United
States vessel that lands the catch in Hawaii. The tuna in turn
is exported from Hawaii by airfreight. You state that the
Japanese and Taiwanese fishing vessels had, in the past, landed
their catches in United States ports, but were subsequently
prohibited from doing so.
ISSUES:
(1) Whether a foreign-flag vessel may land its catch,
which is destined for export, in a United States port.
(2) Whether a United States-flag vessel may land the
catch of a foreign-flag vessel in a United States port where the
catch was transshipped outside of United States territorial
waters.
LAW AND ANALYSIS:
United States law prohibits a foreign-flag vessel from
landing in a United States port its catch of fish taken on board
the vessel on the high seas. 46 U.S.C.A. App. 251(a). For
purposes of this statute, the high seas are those waters outside
the territorial waters of the United States or those of other
nations. The territorial waters of the United States consist of
the territorial sea, defined as the belt, three nautical miles
wide, adjacent to the coast of the United States and seaward of
the territorial sea baseline.
The statute prohibiting the landing of fish taken on
board by a foreign-flag vessel applies regardless of the intended
ultimate disposition of the fish, including the exportation of
the fish. 19 C.F.R. 4.96(b) (1989). Applying this rule to the
facts as you present them, the Japanese and Taiwanese vessels may
not land their tuna catches, even if the catches are intended for
export, in a United States port.
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 [EEZ].
46 U.S.C.A. 12101(a)(1) (West Supp. 1990). 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. 1990).
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. 1990).
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. The question has
arisen, however, whether a United States vessel not documented
for the fisheries may transport fish or fish products, caught or
processed outside of the EEZ, to a point within United States,
the United States territorial waters, or the 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). Insofar as the final
interpretive rule may affect your proposed activities, we advise
you to monitor future notices.
HOLDING:
United States law prohibits a foreign-flag vessel from
landing in a United States port its catch of fish taken on board
the vessel on the high seas, regardless of the intended ultimate
disposition of the catch. The current Customs Service position
is that a United States-flag vessel may land the catch of a
foreign-flag vessel in a United States port where the catch was
caught and transshipped outside of United States territorial
waters. However, the question of whether a vessel not documented
for the fisheries may transport fish caught outside of United
States territorial waters and the EEZ to points therein is under
review by the Customs Service.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch