HQ 109391: Applicability of Public Law 100-239, amending the definition of "fisheries" in 46 U.S.C. 12101, to foreign-built, foreign-flag fisheries support vessels

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 109391

                                   March 17, 1988

          VES-7-01 CO:R:P:C  109391 PH

          CATEGORY:  Carriers

          Mr. Peter D. Strong
          President
          Coastal Transportation, Inc.
          Seattle, Washington 98107

          RE:  Applicability of Public Law 100-239, amending the definition
          of "fisheries" in 46 U.S.C. 12101, to foreign-built, foreign-flag
          fisheries support vessels

          Dear Mr. Strong:

              This in response to your letter of February 26, 1988, in
          which you request a ruling on the applicability of chapter 121 of
          title 46 of the United States Code, as recently amended by Public
          Law 100-239, to the use of foreign-built, foreign-flag fisheries
          support vessels operating in the United States exclusive economic
          zone off of Alaska.

              Your letter may raise questions concerning the documentation
          and inspection of vessels and the MFCMA.  These subjects are
          within the jurisdiction of the United States Coast Guard and the
          National Marine Fisheries Service, respectively.  If you wish to
          question either of these offices, the mailing addresses are:

                    Mr. Thomas Willis
                    Chief, Vessel Documentation
                    U.S. Coast Guard (GMVI-6/13)
                    2100 Second Street, SW. (Room 1312)
                    Washington, D.C. 20593-0001

                    Department of Commerce
                    NOAA/National Marine Fisheries Service
                    Fees, Permits and Regulations Division F/M12
                    Washington, D.C. 20235






















                                        - 2 -


          FACTS:

              You state that there are currently operating in Alaska a
          number of foreign-built, foreign-flag fisheries support vessels.
          These vessels depart Dutch Harbor, Alaska, with United States
          origin cargo into the exclusive economic zone.  They discharge
          their cargo to foreign-built, foreign-flag fish processing ves-
          sels and United States-built, United States-flag fishing vessels.
          The vessels then return to Dutch Harbor and repeat this opera-
          tion.  You request a ruling on the effect of the recently enacted
          Public Law 100-239 on these operations.

          ISSUE:

              In view of the recently enacted Commercial Fishing Industry
          Vessel Anti-Reflagging Act of 1987, Public Law 100-239, may
          foreign-built, foreign-flag fisheries support vessels be used to
          transport cargo from a United States port to fish processing
          vessels and fishing vessels in the United States exclusive
          economic zone?

          LAW AND ANALYSIS:

              Under 46 U.S.C. 12106(b):

                    Subject to the laws of the United States regulating the
                    fisheries, only a vessel for which a fishery license or
                    an appropriately endorsed registry is issued may be
                    employed in the fisheries.

          A fishery license or an appropriately endorsed registry may,
          under paragraph (a) of 46 U.S.C. 12106, be issued for a vessel
          that--

                    (1) is eligible for documentation [i.e., meets the
                    tonnage and United States ownership requirements in
                    46 U.S.C. 12102]; and

                    (2)(A) was built in the United States ....

          This paragraph of section 12106 also provides for the issuance of
          a fishery license or an appropriately endorsed registry for a
          vessel in unusual circumstances such as when the vessel was cap-
          tured in war by citizens of the United States and lawfully con-
          demned as prize.  Public Law 100-239 added to paragraph (a) of
          section 12106 the requirement that, if rebuilt, a vessel be re-
          built in the United States to qualify for issuance of a fishery
          license or an appropriately endorsed registry.













                                        - 3 -


              "Fisheries", when used in chapter 121 of title 46, is defined
          in section 12101, as amended by Public Law 100-239, 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 the exclusive
                    economic zone.

          Public Law 100-239 changed the former definition of "fisheries,"
          in 46 U.S.C. 12101(6), by the addition of the words "processing,
          storing, transporting (except in foreign commerce)."

              Even as amended by Public Law 100-239, "fisheries" includes
          only the processing, storing, transporting (except in foreign
          commerce), etc., of fish or similar marine life.  "Fisheries"
          does not include the transportation of supplies to fishing ves-
          sels or fish processing vessels.  Since such transportation is
          not included in "fisheries," the build and ownership restrictions
          applicable to vessels issued fishery licenses or appropriately
          endorsed registries would not be applicable to vessels used for
          such transportation.

          HOLDING:

              Foreign-built, foreign-flag fisheries support vessels may be
          used to transport cargo from a United States port to fish
          processing vessels and fishing vessels in the United States
          exclusive economic zone outside territorial waters because the
          recently amended definition of "fisheries" in 46 U.S.C. 12101 in-
          cludes only the processing, storing, transporting (except in for-
          eign commerce), planting, cultivating, catching, taking, or har-
          vesting of fish and other marine life listed in that definition
          in the navigable waters of the United States or in the exclusive
          economic zone (i.e., "fisheries" does not include the transport-
          ing, etc., of cargo other than fish and other marine life listed
          in the definition).

                                        Sincerely,




                                        Edward T. Rosse
                                        Acting Director, Regulatory
                                        Procedures and Penalties Division