OT:RR:BSTC:CCR H334180 AFM
Mr. Trygve Westergard
P.O. BOX 5775
Ketchikan, AK 99901
RE: Fisheries; Coastwise Transportation; FV OCEAN HARVESTER; 46 U.S.C. § 55102.
Dear Mr. Westergard:
This letter is in response to your correspondence dated August 16, 2023, requesting a ruling on whether the use of a U.S.-built vessel to transport seafood from a catching vessel to the dock would violate the Jones Act, 46 U.S.C. § 55102. For the reasons set forth below, we find that the proposed use of the subject vessel would not result in a violation of the Jones Act.
FACTS:
You inquire about the proposed use of a United States (U.S.) built fishing vessel, FV OCEAN HARVESTER (the “vessel”), that has received a certificate of documentation from the United States Coast Guard with endorsements for fishery, registry, and coastwise trade. The vessel was originally part of a National Oceanic and Atmospheric Administration (“NOAA”) Restricted Access Management (“RAM”) Program, in the trawl fleet fishery, but was recently withdrawn from this fishery to be replaced with another vessel. Accordingly, the vessel will lose its fishery and registry endorsements but will retain its coastwise endorsement.
You state that that the vessel will be used as a fish tender as well as engage in state waters fisheries. We are advised by NOAA that, as a condition of its participation in the RAM program and subsequent withdrawal therefrom, the FV OCEAN HARVESTER may no longer participate in federal fisheries, but may still fish in state waters. You intend to use this vessel in the territorial waters of the State of Alaska, and potentially Washington and Oregon state territorial waters. The vessel would primarily transport salmon in the summer and possibly cod in the winter from the catching vessel to the dock to unload and sell. You also note that sea cucumbers and geoducks may come aboard the vessel from state water fisheries.
ISSUE:
Whether the proposed use of a U.S.-built vessel to transport seafood caught in state territorial waters to shore constitutes an engagement in coastwise trade for purposes of 46 U.S.C. § 55102.
LAW AND ANALYSIS:
The 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, codified at 46 U.S.C. § 55102. 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.
Generally, the coastwise laws, including 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 law applicable to the transportation of merchandise is found at 46 U.S.C. § 55102, and provides 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.
The Jones Act sets forth that the term “merchandise” “includes … merchandise owned by the United States Government, a State, or a subdivision of a State” and “valueless material.” Additionally, pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “goods, wares, and chattels of every description, . . ..” As such, any cargo, regardless of value, is generally considered merchandise for the purpose of 46 U.S.C. § 55102. Accordingly, the caught seafood 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 seafood in Alaska state waters, and potentially Washington and Oregon state waters. Thus, we presume that the contemplated points of lading and unlading will be coastwise points for this purpose. The proposed use of the vessel to transport seafood from the catching vessel in Alaska, Washington, or Oregon state waters to shore constitutes a use as a fish tender vessel, and coastwise transportation. However, as the FV OCEAN HARVESTER is a U.S.-built, coastwise documented, and U.S. owned vessel, the coastwise transportation proposed would not be in violation of the Jones Act.
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 fish tendering activities is not prohibited from performing the described “coastwise” transportation under 46 U.S.C. § 55102.
Please note this ruling does not provide guidance on the state legal and regulatory requirements regarding the state waters in which the vessel may operate. We further note that we are advised by NOAA that there are restrictions on where cod may be fished and recommend confirming those parameters with NOAA and state authorities prior to engaging in the proposed activities.
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 solely within the territorial waters of the states of Alaska, Washington, or Oregon from a catching vessel to the shore would not violate 46 U.S.C. § 55102.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.” If the facts at hand vary from the facts stipulated to herein, this decision shall not be binding on CBP as provided for in 19 C.F.R. § 177.2(b)(1), (2) and (4), and § 177.9(b)(1) and (4).
W. Richmond Beevers, Chief
Cargo Security, Carriers & Restricted Merchandise Branch