VES-3-02
OT:RR:BSTC:CCR
H324053 SMS
Mr. Trygve Westergard
PO BOX 5775
Ketchikan, AK 99901
RE: Fisheries; Coastwise Transportation; 46 U.S.C. § 55102
Dear Mr. Westergard:
This letter is in response to your correspondence dated March 18, 2022, requesting a ruling on whether the use of a U.S.-built vessel to transport fish from a catching vessel to the dock would violate the Jones Act, 46 U.S.C. § 55102. For the reasons set forth below, we do not find that the proposed use of the subject vessel would result in a violation of the Jones Act.
FACTS:
You inquire about purchasing a United States (U.S.) built vessel, FV PERSEVERANCE, that has received a certificate of documentation from the United States Coast Guard with an endorsement for coastwise trade. You state that that the vessel will be used as a fish tender. Specifically, the vessel was originally part of a National Oceanic and Atmospheric Administration (“NOAA”) Restricted Access Management (“RAM”) Program, but was recently replaced with a new vessel. Now, per the advice of NOAA, the FV PERSEVERANCE may not fish in federal fisheries, but may still fish in state waters. You intend to use this vessel only in the territorial waters of the State of Alaska, to transport salmon and other seafood, from the catching vessel to the dock to unload and sell. You also wish to use the vessel to crab fish and in dive fisheries in the coastal waters of Alaska. The vessel will measure 46 net tons.
ISSUE:
Whether the proposed use of a U.S.-built vessel to transport fish caught in state territorial waters to shore constitutes an engagement in coastwise trade for purposes of 46 U.S.C. § 55102.
LAW AND ANALYSIS:
Federal laws protecting U.S. shipping date back to the First Congress in 1789. American shipping in the U.S. coastwise trade has long been protected from foreign competition, to encourage the development of a U.S. merchant marine, for both national defense and commercial purposes. As a result, all vessels engaged in U.S. coastwise trade have been required to be U.S.-built and U.S.-owned. U.S. Customs and Border Protection (“CBP”), previously the U.S. Customs Service, has always enforced the coastwise laws, which have developed over time since 1789. The current coastwise law governing the transportation of merchandise, was established by Section 27 of the Merchant Marine Act of 1920, sponsored by Senator Wesley L. Jones and it revamped several U.S. shipping laws.
Generally, the coastwise laws under 46 U.S.C. § 55102 (commonly known as the “Jones Act”), prohibit the transportation of merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.” The coastwise laws generally apply to points in the territorial sea, which is 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.
Pursuant to 46 U.S.C. § 55102, in pertinent part:
Except as otherwise provided in this chapter or chapter 121 of this title [46 U.S.C. §§ 55101 et seq. or 12101 et seq.], a vessel may not provide any part of the transportation of merchandise by water, or by land and water, between points in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel—
(1) is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and
(2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 [46 U.S.C. §§ 12101 et seq.] or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.
The CBP Regulations promulgated under the authority of the Jones Act provide, in pertinent part:
A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise laden at a point embraced within the coastwise laws (“coastwise point”) is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise.
Thus, no foreign-built vessel, regardless of its tonnage, may engage in the coastwise trade.
Additionally, pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “goods, wares, and chattels of every description, . . ..” Accordingly, the caught fish sought to be transported ashore by the subject vessel would be considered “merchandise.”
Here, you state that you intend to use the subject vessel to transport fish in Alaska state waters. Thus, we presume that the contemplated points of unlading will be coastwise points for this purpose. The proposed use of the vessel to transport seafood from the catching vessel in Alaska state waters to shore constitutes a use as a fish tender vessel, and coastwise transportation. However, as the FV PERSEVERANCE is a U.S.-built, coastwise registered, and U.S. owned vessel, the coastwise transportation proposed would not be in violation of the Jones Act. Specifically, as discussed supra, the Jones Act is in place to protect the domestic U.S. industry, such as the proposed use of the vessel as a fish tender, from foreign competition.
We note that the Anti-Reflagging Act, as amended, 46 U.S.C § 108, defines “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. The primary purpose of this legislation was to “harmonize” fisheries and maritime law, by imposing similar requirements on the documentation and construction of fish processing and fish tender vessels operating in the fisheries trade “as are imposed on vessels engaged in coastwise transportation under the shipping laws.” In harmonizing fisheries law with the prevailing requirements concerning coastwise transportation under the shipping laws, it is clear that there was no legislative intent to undermine or interfere with the continued application of the coastwise laws in this regard. The legislative history of the Anti-Reflagging Act expressly confirmed this intent, saying, “(f)urther, the Committee does not intend, by inclusion of fish tender operations within the definition of fisheries, to eliminate any requirements that are applicable under the coastwise laws to fish tender vessels engaged in the coastwise trade.”
However, a U.S.-built, U.S.-owned, coastwise-qualified vessel, engaged in fishery activities, is not prohibited from performing any “coastwise” transportation under 46 U.S.C. § 55102.
HOLDING:
The use of the subject U.S.-built, U.S.-owned, coastwise-qualified vessel as a fish tender to transport fish and other seafood within the territorial waters of the State of Alaska from a catching vessel to the dock would not violate 46 U.S.C. § 55102.
W. Richmond Beevers, Chief
Cargo Security, Carriers & Restricted Merchandise Branch