HQ 111581: Application of the coastwise laws (46 U.S.C. App. 883) to the taking by a foreign-flag vessel of frozen fish products from a U.S. processing vessel in the territorial waters of the U.S. and the landing of the same in American Samoa.

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 111581

                          July 25, 1991


VES 7-03 CO:R:IT:C  111581 BEW

CATEGORY:  Carriers

Mr. Tom W. Rueter
Vice President/General Manager
North Star Maritime Agencies
Post Office Box 101019
Anchorage, Alaska 99510

RE:  Application of the coastwise laws (46 U.S.C. App. 883) to
     the taking by a foreign-flag vessel of frozen fish products
     from a U.S. processing vessel in the territorial waters of
     the U.S. and the landing of the same in American Samoa.

Dear Mr. Rueter:

     This is in reference to your letter of March 14, 1991, in
which you request a ruling as to whether American Samoa is
considered to be embraced with the coastwise laws of the United
States.

FACTS:

     You state that North Star Maritime Agencies has been a
steamship agent for 40 years in Alaska, handling various foreign
principals' vessels during their calls in Alaskan Waters.
Specifically you state that Taiyo Gyogyo Co. Ltd. charters
and/or operates numerous foreign-flag reefer cargo vessels as
common carriers between points throughout the world.  You state
that one aspect of their business is to transport frozen fish
products which are received from U.S.-flag processing vessels,
anchored in the U.S. territorial waters.  It appears from your
letter that the loading of the fish products takes place during
the outbound voyage of the vessel.  You state that all products
are slated for discharge at foreign ports.

     You ask the following questions:

          For the purpose of Coastwise Laws (Jones Act)
          and other regulations that may apply, is
          American Samoa considered to be embraced
          within the coastwise laws of the United
          States.  Can Foreign flag vessels load
          cargoes within the U.S. territorial waters of
          the Alaska region for discharge at ports in
          American Samoa?

ISSUE:

     Whether the coastwise laws are applicable to commerce
between the islands of American Samoa and other ports of the
United States?

LAW AND ANALYSIS:

     Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and
883, and 46 U.S.C. 12106 and 12110) prohibit the transportation
of merchandise or passengers between points in the United States
embraced within the coastwise laws 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.

     The coastwise law pertaining to the transportation of
merchandise, section 27 of the Act of June 5, 1920, as amended
(41 Stat. 999; 46 U.S.C. App. 883, often called the Jones Act),
provides that:

          No merchandise shall be transported by water,
          or by land and water, on penalty of
          forfeiture of the merchandise (or a monetary
          amount up to the value thereof as determined
          by the Secretary of the Treasury, or the
          actual cost of the transportation, whichever
          is greater, to be recovered from any
          consignor, seller, owner, importer,
          consignee, agent, or other person or persons
          so transporting or causing said merchandise
          to 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 other vessel 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 ....

     In interpreting the coastwise laws, Customs has ruled that a
point in United States territorial waters is considered a point
embraced within the coastwise laws.  The coastwise laws generally
apply to points in the territorial sea, defined as the belt,
three (3) nautical miles wide, adjacent to the coast of the
United States and 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.

     "Merchandise" is defined in section 1401(c) of title 19,
United States Code, to include goods, wares, and chattels of
every description, and includes fish, fish products, and fish
packing materials that are assembled into packages containing
fish.  Section 883 specifically provides that, for purposes of
its provisions, "merchandise" includes valueless material (Pub.L.
100-329; 102 Stat. 588).  The transportation of valueless
material, whether or not it has commercial value, from a point or
place in the United States or point or place on the high seas
within the Exclusive Economic Zone (EEZ) as defined in the
Presidential Proclamation of March 10, 1983, to another point or
place in the United States or a point or place on the high seas
within that EEZ would also be prohibited under the provisions of
section 883.

     Under the foregoing, frozen fish products are considered
merchandise for purposes of section 883.

     Title 48, United States Code, section 1664 (48 U.S.C. 1664)
provides:

          The provisions of law of the United States restricting
          to vessels of the United States the transportation of
          passengers and merchandise directly or indirectly from
          any port of the United States to another port of the
          United States shall not be applicable to commerce
          between1 the islands of American Samoa or between those
          islands and other ports under the jurisdiction of the
          United States.

          (1 So in original.  Probably should be between).

     A review of the Joint Resolution to harmonize the treaties
and statutes of the United States with reference to American
Samoa reveals that Article 3 of the Convention relating to the
Samoan Islands, signed by the United States, Great Britain, and
Germany in 1899 states:

          It is understood and agreed that each of the
          three signatory powers shall continue to
          enjoy, in respect to commerce and commercial
          vessels, in all of the islands of the Samoan
          group privileges and conditions equal to
          those enjoyed by the sovereign powers, in
          all ports which may be open to the commerce
          of either of them.

     On this basis it was resolved under the Joint Resolution
that the coastwise shipping laws of the United States are
inapplicable to American Samoa (48 U.S.C. 1664, June 14, 1934, c.

523, 48 Stat. 963).  Headquarters rulings issued prior to 1983
held that the coastwise laws do not apply to American Samoa.

     Revised Statute 4132 as amended (46 U.S.C. 11) provided that
a foreign built, United States-flag vessel which normally would
be proscribed from engaging in the coastwise trade, may engage in
trade between the United States mainland and American Samoa.
Section 11 was repealed by Public Law 96-594, Title 1, section
127, Dec. 24, 1980,  94 Stat. 3459.  Section 110(b) of Pub. L.
96-594 (46 U.S.C. 12105(b) provided as follows:

          A vessel for which a registry is issued may be employed
          in foreign trade or trade with Guam, American Samoa,
          Wake, Midway or Kingman Reef.

Section 12105(b) was amended in 1989 by adding the word
"endorsement" after the word "registry".

     Customs has long held that the coastwise laws are
inapplicable to American Samoa (48 U.S.C. 1664).  We have
reviewed the legislative history relating to the above stated
statutes, i.e., 48 U.S.C. 1664 and 46 U.S.C. 12105(b), and we do
not find any provisions in which Congress intended to repeal 48
U.S.C. 1664.   It appears that the purpose of enacting section
12105(b) is three-fold; to revise, consolidate and to enact into
positive law the existing maritime laws, to entitle certain
United States citizens or nationals domiciled in Guam, American
Samoa or the Northern Mariana Islands to register vessels under
United States shipping laws, and to allow citizens of American
Samoa, Guam, and the Northern Mariana Islands to use foreign-
built vessels in the coastwise trade and fishing within the
territorial seas adjacent to American Samoa, Guam, and the
Northern Mariana Islands.

     Sutherland Stat. Const S 23.09 and the cases cited therein,
held that:

          The legislature is presumed to intend to
          achieve a consistent body of law.  In accord
          with this principle subsequent legislation is
          not presumed to repeal the existing law in
          the absence of expressed intent.  Conversely,
          where a consistent body of laws cannot be
          maintained without the abrogation of a
          previous law, a repeal by implication of
          previous legislation or of the common law is
          readily found in the terms of a later
          enactment.

There is nothing in the enactment of section 12105(b) that
indicates that section 1664 is repealed.  Courts are reluctant to
find repeal by implication even when the later statute is not
entirely harmonious with the earlier one.   A recent case, United
States v. Barrett, 837 F2d 933 (CA10, 1988) held that if two
statutes conflict somewhat, the court must if possible read them
so as to give effect to both, unless the text or legislative
history of the later statute shows that Congress intended to
repeal the earlier one and simply failed to do so expressly.

     Under the foregoing, we find that the coastwise laws are
inapplicable to American Samoa.

     The Act of September 2, 1950, as amended (Chapter 842, 64
Stat. 577; 46 U.S.C. App. 251(a), often called the Nicholson Act)
provides:

          Except as otherwise provided by treaty or
          convention to which the United States is a party,
          no foreign-flag vessel shall, whether documented
          as a cargo vessel or otherwise, land in a port of
          the United States its catch of fish taken on
          board such vessels on the high seas or fish
          products processed therefrom, or any fish or fish
          products taken on board such vessel on the high
          seas from a vessel engaged in fishing operations
          or in the processing of fish or fish products.

     Under the Nicholson Act a foreign-flag vessel may not
land in a port of the United States its catch of fish taken
on board such vessel on the high seas.  Customs has held
that the Nicholson Act does not apply to prohibit a foreign-
flag vessel from landing in Guam, American Samoa, or the
Commonwealth of the Northern Mariana Islands (CNMI) fish or
fish products it has caught or taken on board on the high
seas.

     You should also be aware that under 46 U.S.C. 12108 and
12101 a vessel not documented for the fisheries is
prohibited from transporting the fish (except in foreign
commerce) within the United States EEZ unless it has
received a permit to do so under the Magnuson Fishery
Conservation and Management Act (MFCMA) (16 U.S.C. 1801 et
seq.).  The subject foreign vessels are precluded from
taking aboard any marine products whose destination,
immediately or otherwise, is a port subject to the coastwise
laws.

     Under the MFCMA, foreign-flag vessels may operate
within the EEZ under permits issued by the National Oceanic
and Atmospheric Administration (NOAA) pursuant to
International Fishery Agreements negotiated under the MFCMA.
The MFCMA excludes from its coverage "highly migratory
species", which include tuna.

     While Congress specifically vested in the NOAA the
responsibility for administering the MFCMA, Customs has been
given certain responsibility for regulating vessels in the
fishing trades (see Reorganization Plan No. 3 of 1946, 60
Stat. 1097).



HOLDING:

     The coastwise laws are inapplicable to the
transportation of passengers or merchandise directly or
indirectly between any port of the United States and the
islands of American Samoa or between the islands of American
Samoa.

                                     Sincerely,




                                     B. James Fritz
                                     Chief
                                     Carrier Rulings Branch