VES-3/7-01-CO:R:IT:C 112244 GEV
Laurie L. Crick, Esq.
Dyer, Ellis, Joseph & Mills
Watergate - Suite 1000
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037
RE: Aquatic Plant Harvesting Vessels; Fisheries; Coastwise
Trade; 46 U.S.C. 12101(a), 12108(b); 46 U.S.C. App. 883
Dear Ms. Crick:
This is in response to your letter dated May 19, 1992, on
behalf of your client, Ecomarine, Inc., requesting a ruling
regarding possible coastwise trade and fisheries implications in
the proposed use of a foreign-built vessel. Our ruling is set
forth below.
FACTS:
Ecomarine, Inc., is contemplating the purchase of an
Italian-built, multi-purpose vessel to be used solely in Lake
Cibra, Puerto Rico, for the purpose of removing aquatic
vegetation from channels and marinas. Pursuant to a request from
counsel for Ecomarine, Inc., the Commanding Officer, Marine
Safety Office, U.S. Coast Guard (USCG), San Juan, Puerto Rico,
has provided a letter, dated May 12, 1992, stating that Lake
Cibra is not considered to be navigable waters of the United
States for purposes of the laws and regulations administered by
that agency (see section 2.05-25(a), USCG Regulations (33 CFR
2.05-25(a), defining navigable waters).
ISSUE:
1. Whether the use of a foreign-built vessel to harvest
aquatic vegetation from Lake Cibra, Puerto Rico, is considered an
engagement in the fisheries within the meaning of 46 U.S.C
12101(a) so as to constitute a violation of 46 U.S.C. 12108(b).
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2. Whether the use of a foreign-built vessel to harvest
aquatic vegetation from Lake Cibra, Puerto Rico, is considered an
engagement in the coastwise trade in violation of 46 U.S.C. App.
883.
LAW AND ANALYSIS:
The Commercial Fishing Industry Vessel Anti-Reflagging Act
of 1987 (the "Act", Pub. L. 100-239; 101 Stat. 1778) amended 46
U.S.C. 12101(6) by changing the definition of "fisheries" set
forth therein to include the "processing, storing, and
transporting (except in foreign commerce)" of fish and related
fishery resources in United States navigable waters and the
Exclusive Economic Zone (EEZ), as well as the catching-related
activities provided for in the former definition. Accordingly,
the new definition of fisheries, now set forth in 46 U.S.C.
12101(a)(1) reads as follows:
"fisheries" includes 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 above definition of fisheries supersedes the definition
of "fishing" found in section 4.96(a)(5), Customs Regulations (19
CFR 4.96(a)(5)) which included the transportation of marine
products by a vessel other than the taking vessel under the
complete control and management of a common owner or bareboat
charterer. It should be noted that this superseded definition
was applicable only to the transportation of marine products
taken and transferred on the high seas and did not provide any
exception to the coastwise laws.
Title 46, United States Code, section 12108(b) limits the
employment in the fisheries to a vessel issued a certificate of
documentation with a fishery endorsement, "subject to the laws of
the United States regulating the fisheries" (see e.g., 16 U.S.C.
1801, et seq., under which a foreign vessel may obtain a permit
from the National Marine Fisheries Service to engage in fishing
in the EEZ). Pursuant to 19 U.S.C. 1401(a), the word "vessel"
includes every description of water craft or other contrivance
used, or capable of being used, as a means of transportation in
water, but does not include aircraft. Under 46 U.S.C. 12108(a),
only a vessel eligible for documentation (i.e., over 5 net tons
and owned by a citizen) which was built in the United States may
be endorsed for the fisheries. Pursuant to 46 U.S.C. 12108(b),
subject to the laws of the United States regulating the
fisheries, only a vessel so endorsed may engage in the
fisheries. With regard to vessels of less than 5 net tons,
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Customs has long held that such vessels, if owned by United
States citizens or by resident aliens, may engage in the
fisheries even if foreign-built (see e.g., Treasury Decision
(T.D.) 56382(6)). Legislative support for this provision may be
found in 16 U.S.C. 1802(27)(B).
Title 46, United States Code Appendix, section 883 (46
U.S.C. App. 883), the coastwise merchandise statute often called
the "Jones Act", provides, in part, that no merchandise shall be
transported between points in the United States embraced within
the coastwise laws, either directly or via a foreign port, or for
any part of the transportation, in any vessel other than a vessel
built in and documented under the laws of the United States and
owned by persons who are citizens of the United States (i.e., a
coastwise-qualified vessel). This statute has been found to
apply even to the transportation of merchandise from point to
point within a harbor. Pursuant to 19 U.S.C. 1401(c), the word
"merchandise" means goods, wares and chattels of every
description and includes merchandise the importation of which is
prohibited. Furthermore, Public Law 100-329 (102 Stat. 588)
amended section 883 to apply to the transportation of "valueless
material..."
The provisions of title 46, United States Code, relating to
the fisheries and the coastwise laws, as well as other navigation
laws administered by the Customs Service are applicable only to
those vessels engaged in activities in the navigable waters of
the United States, and the navigable waters of its territories
and possessions. The U.S. Coast Guard determines whether a
particular body of water is deemed navigable waters of the United
States in order to ascertain its jurisdiction to enforce the laws
it administers. The U.S. Customs Service, in ascertaining its
own jurisdiction to enforce the navigation laws it administers,
is strongly disposed to follow the determinations of the U.S.
Coast Guard in the absence of Federal judicial decisions or
explicit Congressional enactment, although it is not required to
do so.
In regard to an aquatic plant harvesting vessel, Customs
has ruled that such a vessel is engaged in the fisheries within
the meaning of 46 U.S.C. 12101(a)(1) (see C.S.D. 89-85 and
rulings 110104 and 110613). If it is foreign-built, regardless
of its tonnage it is not eligible for documentation for the
fisheries under 46 U.S.C. 12108(a). We note, however, that if it
is less than 5 net tons and numbered pursuant to 46 U.S.C. 12301
et seq. it is considered a vessel of the United States pursuant
to 16 U.S.C. 1802(27)(B) and may engage in the fisheries provided
it is owned by United States citizens or by resident aliens.
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In regard to any vessel (other than a harvesting vessel)
used in U.S. territorial waters solely for transporting harvested
vegetation to shore, it is apparent that such a vessel is engaged
in the coastwise trade. Pursuant to section 4.80(a)(2), Customs
Regulations (19 CFR 4.80(a)(2)), no foreign-built vessel,
regardless of its tonnage, may engage in the coastwise trade.
Accordingly, the use of such a vessel as described above on
navigable waters would constitute a violation of 46 U.S.C. App.
883.
As discussed above, it is proposed to operate the Italian-
built vessel under consideration on Lake Cibra, Puerto Rico, a
body of water the U.S. Coast Guard has deemed not to be navigable
waters of the United States for the purpose of ascertaining
jurisdiction to enforce the laws it administers. Upon reviewing
this matter, Customs will follow this determination in
ascertaining its own jurisdiction in enforcing the navigation
laws it administers.
Accordingly, the proposed use of the Italian-built vessel to
harvest aquatic vegetation would not constitute an engagement in
the fisheries for purposes of 46 U.S.C. 12101(a) and 12108(b) in
view of the fact that Lake Cibra is not considered navigable
waters of the United States. The same rationale renders the
provisions of 46 U.S.C. App. 883 inapplicable as well, although
assuming arguendo the navigability of Lake Cibra, its use in
harvesting aquatic vegetation (as opposed to use solely for
transporting such vegetation or any other merchandise) would not
be considered an engagement in the coastwise trade within the
meaning of 46 U.S.C. App. 883.
HOLDINGS:
1. The use of a foreign-built vessel to harvest aquatic
vegetation from Lake Cibra, Puerto Rico, a body of water not
deemed navigable waters of the United States for purposes of
applying Federal law, is not considered an engagement in the
fisheries within the meaning of 46 U.S.C. 12101(a) so as to
constitute a violation of 46 U.S.C. 12108(b).
2. The use of a foreign-built vessel to harvest aquatic
vegetation from Lake Cibra, Puerto Rico, a body of water not
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deemed navigable waters of the United States for purposes of
applying Federal law, is not considered an engagement in the
coastwise trade in violation of 46 U.S.C. App. 883.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch