VES-7-CO:R:IT:C 112849 LLB
Mr. Heung Y. Kim
Kim Marine Documentation, Inc.
720 Olive Way, Suite 1515
Seattle, Washington 98101
RE: Coastwise trade; Fisheries; Transportation of fish;
Territorial waters; Limited coastwise endorsement; 46 U.S.C.
App. 883; 46 U.S.C. 12101
Dear Mr. Kim:
Reference is made to your letter of August 13, 1993, which
requests that Customs consider the legality of a certain
contemplated transportation aboard a United States-flag vessel
with fisheries, registry, and limited coastwise endorsements.
FACTS:
The purchase of the vessel PACIFIC WARRIOR is being
contemplated by Royal Aleutian Seafoods, Inc. (RASI). The vessel
is documented under the laws of the United States and is endorsed
for fisheries, registry, and limited coastwise trade purposes.
The coastwise trade limitation states that the vessel, "...may
only transport valueless material in coastwise trade or dredged
material in accordance with the strictures of Pub. L. 100-329
(sec 5)."
It is proposed that the vessel operate in "Alaskan waters",
which we interpret to mean operation within the three-mile
territorial waters of the United States, where already-harvested
fish will be purchased and transported to a company-owned
processing plant at a shore point in Alaska. You posit that the
above-described activities will not constitute a violation of the
coastwise trade merchandise statute since the purchased fish will
be company property. You believe that the operation is
permissible since the vessel's document is endorsed for the
fisheries.
ISSUE:
Whether the transportation of fish from a point originating
within the territorial waters of the United States to another
coastwise point may be legally accomplished aboard a vessel with
fisheries and limited coastwise trade endorsements.
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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" 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.
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 fish and fish products.
The coastwise laws generally apply to points in the
territorial sea, 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, in
cases where the baseline and the coastline differ.
The legislative history of the Anti-Reflagging Act of 1987
indicates that one of the purposes of its enactment was to
reconcile differences between United States fisheries laws and
maritime law. In the House Report on this Act (H.R. Rep. No.
100-423, 100th Cong., 1st Sess. (1987); published at 1987
U.S.C.C.A.N. 3245), this purpose is described as the "genesis of
the legislation." The aforementioned reconciliation, however,
cannot be construed as a means of superseding or overriding the
coastwise laws. It should be noted that Customs, in rulings
involving the coastwise laws (specifically 46 U.S.C. App. 883),
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has stated that there is no transportation in violation of
section 883 unless there is both a lading and an unlading at a
coastwise point, based on the precise reading that must be given
to all punitive statutes. (see 19 CFR 4.80b(a)) Section 883
provides, in pertinent part, that "[n]o merchandise shall be
transported by water, or by land and water,...between points in
the United States...embraced within the coastwise laws." The
clear language of section 883, which contains no provision
excluding proprietary property from its application, contemplates
both a lading at a coastwise point and an unlading at a coastwise
point. The definition of "fisheries" in 46 U.S.C. 12101(a)(1)
includes the transportation of fish in the EEZ and the navigable
waters of the United States. It does not refer to a coastwise
movement, merely a transportation.
Accordingly, with the exception of a catching vessel
transporting its own catch, and any incidental movement of an
anchored vessel due to tides, high seas, etc., the transportation
by a vessel of fish and fish products from their point of lading
in the U.S. territorial sea to their point of unlading at another
coastwise point constitutes coastwise trade pursuant to 46 U.S.C.
App. 883. Vessels engaged in this activity would be required to
have both a fishery endorsement and a coastwise endorsement on
their certificate of documentation. In the case of the PACIFIC
WARRIOR, the endorsement issued for the coastwise trade is
specifically limited to the transportation of valueless material
and dredge spoil, and could not authorize the proposed
transportation of fish.
HOLDING:
The transportation of fish from one coastwise point (a point
within the territorial waters of the United States) to another
coastwise point is a movement in the coastwise trade requiring an
unrestricted endorsement for that trade. The same transportation
could be accomplished with the use of a fisheries endorsement if
the transportation were to originate at a point beyond the three-mile territorial waters and end at a coastwise point.
Sincerely,
Arthur P. Schifflin
Chief
Carrier Rulings Branch