HQ 111353: Aquatic weed harvesting; Fisheries; Navigable waters;Coastwise transportation; Net tonnage; 46 U.S.C. 12101; 46 U.S.C. App. 883; T.D. 56382

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 111353

                         January 18, 1991


VES-3-CO:R:IT:C 111353 LLB

CATEGORY:  Carriers

Mr. Harlan M. Stein
The Houston Group
4550 Post Oak Place
Houston, Texas 77027

Re:  Aquatic weed harvesting; Fisheries; Navigable waters;
Coastwise transportation; Net tonnage; 46 U.S.C. 12101;
     46 U.S.C. App. 883; T.D. 56382

Dear Mr. Stein:

     This is in reference to your letter of October 12, 1990,
concerning the use of a foreign-built aquatic weed harvester in
certain canals and levees in South Florida.  You request that the
identity of the applicant remain confidential, and we acceed to
that request.

FACTS:

     It is proposed that a foreign-built vessel designed for the
harvesting of submerged hydrilla be brought into the United
States for the purpose of removal of hydrilla from canals "and
other similar waterways" located in the South Florida Water
Management District, Dade County, Florida.  The process involves
the severing of hydrilla from the waterway beds and the deposit
of the collected weeds onto a "transporter unit" which would
carry the severed hydrilla to a shore-side disposal site.  It is
stated that the management district classifies the bodies of
water in question as non-navigable.

ISSUE:

     1.   Whether the use of a vessel to harvest aquatic plants
constitutes an engagement in the fisheries within the meaning of
46 U.S.C. 12101(a)(1).

     2.   Whether the use of a vessel to transport aquatic plants
from the point of harvest to a shore-side disposal site
constitutes an engagement in the coastwise trade within the
meaning 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" to
include the "processing, storing, and transporting (except in
foreign commerce)" of fish and related fishery resources in the
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).  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, 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 (e.g., 46 U.S.C. App.
316(a)), 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.

     Assuming, arguendo, use on navigable waters, it is apparent
that an aquatic plant harvesting vessel is engaged in the
fisheries within the meaning of 46 U.S.C. 12101(a)(1).  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.

     In regard to the vessel used for transporting harvested
vegetation to shore, it is apparent that such 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 a non-qualified vessel on navigable
waters would constitute a violation of 46 U.S.C. App. 883.

HOLDING:

     1.  A vessel which harvests aquatic plants from United
States waters recognized as navigable is engaged in the fisheries
within the meaning of 46 U.S.C. 12101(a).  If the vessel is
foreign-built it is not eligible for documentation for the
fisheries under 46 U.S.C. 12108(a). 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.

     2.  A vessel, used on United States waters recognized as
navigable to transport harvested aquatic plants from their point
of harvest to a disposal point on shore is engaged in the
coastwise trade within the meaning of 46 U.S.C. App. 883.
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.

                                   Sincerely,




                                   B. James Fritz
                                   Chief
                                   Carrier Rulings Branch