HQ 110288: Eligibility of vessels rebuilt outside the United States to engage in tuna fishing

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 110288

                         August 23, 1989

VES-7-01/03-CO:R:P:C 110288 GV

CATEGORY: Carriers

E. Alex Blanton, Esq.
Dyer, Ellis, Joseph & Mills
Watergate - Suite 1000
600 New Hampshire Avenue, NW.
Washington, D.C. 20037

RE:  Eligibility of vessels rebuilt outside the United States to
     engage in tuna fishing

Dear Mr.  Blanton:

     This is in reference to your letter dated May 31, 1989, on
behalf of your client, Bender Shipbuilding Company ("Bender")
requesting a ruling as to whether certain activities constitute
engaging in the fisheries and whether U.S.-documented vessels
engaged in those activities must have a fishery license or
endorsement issued under 46 U.S.C. 12108.

FACTS:

     Your client, "Bender", is currently considering whether
several tuna vessels should be rebuilt in the United States or in
a foreign country.  The proposed use of the subject vessels
includes the catching of tuna within the United States Exclusive
Economic Zone (EEZ) and the landing of such catches, wherever
caught, in the United States.

ISSUES:

     1. Whether the catching of tuna within the EEZ by a vessel
that has been rebuilt in a foreign country constitutes an
engagement in the fisheries within the meaning of 46 U.S.C.
12101(a)(1) and/or 16 U.S.C. 1801 et seq.

     2. Whether the landing of tuna caught within and/or without
the EEZ by a vessel that has been rebuilt in a foreign country is
prohibited by 46 U.S.C. App. 251(a).
                                2

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 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 Exclusive Economic Zone (EEZ) is defined in Presidential
Proclamation 5030 of March 10, 1983 (48 FR 10605), as extending
outward for 200 nautical miles from the baseline from which the
territorial sea is measured.

     Title 46, United States Code, section 12108(b) limits the
employment in the fisheries to a fishery-documented vessel,
"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 form the National Marine
Fisheries Service (NMFS) to engage in fishing in the EEZ).  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 documented 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 documented may engage
in the fisheries.  Further in this regard, we refer to the letter
from Mr. Thomas L. Willis, Chief, Vessel Documentation Branch,
United States Coast Guard (USCG), dated June 27, 1989, (1673/31-
4) in response to your letter of May 31, 1989, confirming the
above information regarding this matter.

     The Magnuson Fishery Conservation and Management Act of 1976
(MFCMA, 16 U.S.C. 1801 et seq.) was enacted, in pertinent part,
to conserve and manage the fishery resources found off the coasts
of the United States, and the anadromous species and Continental
Shelf fishery resources of the United States by establishing (A)
a fishery conservation zone within which the United States will
assume exclusive fishery management authority over all fish,
except highly migratory species, and (B) exclusive fishery
management authority beyond such zone over such anadramous
                                3

species and Continental Shelf fishery resources (16 U.S.C.
1801(b)(1)).  Although the MFCMA is administered by NMFS which is
under the authority of the National Oceanic and Atmospheric
Administration (NOAA) it is our understanding that the MFCMA does
not cover most species of tuna (16 U.S.C. 1802(14), 1813).

     Accordingly, although it would appear that most species of
tuna do not come within the purview of the MFCMA, a vessel
engaged in the catching of tuna within the EEZ is considered to
be engaged in the fisheries within the meaning of 46 U.S.C.
12101(a)(1) and must be issued a fishery license or a properly
endorsed registry.  Pursuant to the aforementioned letter from
the USCG on this matter, a vessel which has been rebuilt in a
foreign country may not obtain a fisheries license.

     The provision relating to the landing of fish in the United
States in the Nicholson Act (the Act of September 2, 1950, as
amended, Ch. 842, 64 Stat. 577; 46 U.S.C. App. 251(a)) has not
been changed since its enactment in 1950.  Under the Nicholson
Act, no foreign-flag vessel shall land in a port of the United
States its catch of fish taken on board the vessel on the high
seas, or fish products processed therefrom, or any fish or fish
products taken on board the vessel on the high seas from a vessel
engaged in fishing operations or in the processing of fish or
fish products.  Since this prohibition is directed against
foreiqn-flag vessels, a United States-flag, foreign-built vessel
(which usually could not be documented for the coastwise or
fisheries trade and therefore could not engage in the fisheries
within the EEZ) could land in the United States fish (including
those species of tuna not covered by the MFCMA) it had caught or
received on the high seas outside the EEZ without violating the
Nicholson Act.

     Accordingly, the landing in a port of the United States of
tuna caught outside the EEZ by a U.S.-flag vessel that has been
rebuilt foreign would not violate 46 U.S.C. 251(a).

     It should be noted however, that in view of the new
definition of fisheries set forth in 46 U.S.C. 12101(a)(1) which
now includes the transportation of fish and related fishery
resources in the EEZ, it is possible that the transportation in a
U.S.-flag, non-fisheries-qualified vessel from a point outside
the EEZ to the U.S. is prohibited under 46 U.S.C. 12108
notwithstanding the foregoing interpretations of the Nicholson
Act.  In this regard Customs is preparing a notice for
publication in the Federal Register which will allow all
interested parties to comment on several issues concerning this
matter among them the issue as to whether the transportation, by
a vessel not documented for the fisheries (whether under foreign
or American documentation) of fish caught on the high seas
outside the EEZ by that vessel, through the EEZ and territorial
waters, constitutes an engagement in the fisheries.  Until such
                                4

time as we thoroughly review all comments received and issue a
final ruling on this matter, our position remains as stated
above.

HOLDINGS:

     1. The catching of tuna within the EEZ by a vessel that has
been rebuilt in a foreign country constitutes an engagement in
the fisheries within the meaning of 46 U.S.C. 12101(a)(1) and is
prohibited inasmuch as such a vessel cannot be documented for the
fisheries under 46 U.S.C. 12108(b) notwithstanding the provisions
of the MFCMA (16 U.S.C. 1801 et seq.)

     2. The landing of tuna caught outside the EEZ by a U.S.-
flag vessel that has been rebuilt in a foreign country is not
prohibited by 46 U.S.C. App. 251(a).

                              Sincerely,




                              B. James Fritz
                              Chief
                              Carrier Rulings Branch