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Marine Resources, Foreign Fishing [Title 24

CODE OF THE FEDERATED STATES OF MICRONESIA

Title 24

CHAPTER 4

MARINE RESOURCES

Sections:

§ 401. Foreign fishing agreements-Required.
§ 402. Fees for foreign fishing permits.
§ 403. Allocation of allowable fishing among foreign fishing vessels.
§ 404. Foreign fishing agreements-Terms.
§ 405. Approval of foreign and domestic-based fishing agreements.
§ 406. Domestic-based fishing agreements.
§ 407. Allocation of allowable fishing between domestic-based fishing vessels.
§ 408. Agreements affecting State waters.

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§ 401. Foreign fishing agreements-Required.

No foreign fishing vessel shall be issued a permit to fish in the exclusive economic zone without having entered into a foreign fishing agreement.

Source: PL 6-11 § 30.

§ 402. Fees for foreign fishing permits.

Fees and other forms of compensation for the right to exploit marine resources within the exclusive economic zone by foreign fishing vessels shall be established in foreign fishing agreements entered into pursuant to Sections 401, 404 and 405 of this Title.

Source: PL 6-11 § 31.

Annotations

The following factors are relevant to determining whether fishing fees are taxes: 1) the source of the levy - whether the entity imposing the tax is legislative or administrative; 2) the effect of the levy on the general public - whether the assessment is imposed upon a broad or narrow class; 3) the means by which the levy is made - whether it is voluntary, and produces a benefit to the payor which is commensurate with the payment; and 4) the relationship between the levy and government costs - whether the revenue generated bears a relationship to the costs of the government in administering the particular program, Chunk v Secretary of Finance, 8 FSM Intrm 353, 382-83 (Pon 1998).

The MMA can establish fees and other forms of compensation in foreign fishing agreements, which can include compensation in the field of refinancing, equipment and technology relating to the fishing industry, but no particular measure is set for the fishing fee in the FSM Code. Chunk v Secretary of Finance, 8 FSM Intrm 353, 380 (Pon 1998).

The process of determining the appropriate level of the fishing fees, the best method to collect the fishing fees, and ultimately how to distribute the fishing fees, is indisputably of a national character. Thus the national government, not the states, has the power to collect and distribute the fishing fees. Chunk v Secretary of Finance, 8 FSM Intrm 353, 375 (Pon 1998).

§ 403. Allocation of allowable fishing among foreign fishing vessels.

(1) The Authority may determine the allocation among foreign parties of the total allowable level of foreign fishing which is permitted with respect to any stock of fish subject to the provisions of this Title.

(2) In determining the allocation among parties, the Authority shall take into consideration:

(a) the extent to which vessels of such parties have historically fished the particular regulated species;

(b) the extent to which vessels of such parties have complied with the laws of the Federated States of Micronesia and any relevant treaties, agreements, or arrangements;

(c) whether such parties or their national governments have cooperated with the Federated States of Micronesia in, and made substantial contributions to, the conservation, management and development of fisheries, fishery research and the identification of marine resources;

(d) whether such parties or their national governments have cooperated with the Federated States of Micronesia in enforcement of the provisions of this Title and the regulations issued under its authority, including flag State enforcement and provision of information required for the conservation and management of stocks of fish; and

(e) such other matters as it may deem appropriate.

Source: PL 6-11 § 32.

§ 404. Foreign fishing agreements - Terms.

All foreign fishing agreements shall have the following minimum terms:

(1) The foreign party and the owner or operator of any fishing vessel shall acknowledge the exclusive fishery management authority of the Federated States of Micronesia within the Exclusive Economic Zone;

(2) The foreign party or the owner or operator of any fishing vessel fishing, as appropriate, pursuant to such agreement shall:

(a) comply with the requirements of this title, all regulations issued pursuant to this title and all other applicable laws and regulations;

(b) permit any officer authorized to enforce the provisions of this title to board and search or inspect any vessel at any time and make arrests and seizures provided for in section 508 of this title whenever such officer has reasonable cause to believe, as a result of such a search or inspection, that any such vessel or any person has committed an act prohibited by this title;

(c) permit such officer to examine and make notations on any permit issued pursuant to sections 109 through 111 of this title, or other documentation required under any applicable foreign fishing agreement;

(d) allow and assist any authorized officer to enforce the provisions of this title, regulations made thereunder and any other applicable laws or regulations;

(e) immediately comply with every instruction given by an authorized officer, facilitate safe boarding, and facilitate the inspection of the vessel, gear, equipment, records, fish and fish products;

(f) allow and assist authorized observers to board the vessel for scientific, monitoring, compliance and other functions, and have full access to, and the use of, facilities and equipment on board the vessel which the authorized observer may determine is necessary to carry out his duties; have full access to the bridge, fish on board and areas which may be used to hold, process, weigh and store fish; remove samples; have full access to the vessel's records, including its logs and documentation for the purpose of inspection and copying; and gather any other information relating to fisheries in the Exclusive Economic Zone;

(g) not assault, obstruct, resist, delay, refuse boarding to, intimidate, or interfere with an authorized officer or authorized observer in the performance of his duties;

(h) display any permit or permit number issued for any such vessel pursuant to sections 109 through 111 of this title or any documentation required to be displayed under foreign fishing agreements in the wheelhouse of such vessel;

(i) ensure that appropriate position-fixing and identification equipment shall be installed and maintained in working order on each such vessel;

(j) ensure that the vessel is marked in accordance with regulations issued by the Authority while within the Exclusive Economic Zone;

(k) require that the National Government of the Federated States of Micronesia shall be reimbursed for the cost of authorized observers;

(l) appoint and maintain an agent within the Federated States of Micronesia who is authorized to receive and respond to any legal process issued in the Federated States of Micronesia with respect to such owner or operator of such vessel;

(m) not, in any year, exceed such party's allocation of the total allowable level of foreign fishing, in the event allocations are established in accordance with this title; and

(n) use components of vessel monitoring systems as directed by the President of the Federated States of Micronesia.

(3) Foreign parties will:

(a) apply, pursuant to section 109 of this title, for any required permits;

(b) deliver promptly to the owner or operator of the appropriate fishing vessel any permit which is issued under that section for such vessel; and

(c) abide by the requirement that no foreign fishing will be permitted in the Exclusive Economic Zone without a valid and applicable permit, except as provided by foreign fishing agreements concluded pursuant to this chapter, and that all conditions and restrictions of the permit, or any applicable foreign fishing agreement, are complied with.

Source: PL 9-057 § 1.

Annotations

A fishing permits issued by the national government prohibiting fishing in state waters unless authorized by the state which has jurisdiction, does not constitute regulation of state waters by the national government because it merely tries to prevent a vessel that fishes illegally in state waters from continuing to fish in national waters. The national government might permit fishing within the exclusive economic zone on such terms and conditions and with such restrictions has deemed appropriate. FSM v Hai Hsain No. 63, 7 FSM Intrm 114, 115 (Chk 1995).

MMA cannot contract to insulate a foreign fishing agreement signatory from criminal liability because to do so would violate 24 F.S.M.C. 404. FSM v Ting Hong Oceanic Enterprises, 8 FSM Intrm 166, 181 (Pon 1997).

Section sets forth certain minimum terms that all foreign fishing agreements must contain. FSM v Ting Hong Oceanic Enterprises, 8 FSM Intrm 166, 172 (Pon 1997).

Section sets forth certain minimum terms that all foreign fishing agreements must contain. FSM v Ting Hone Oceanic Enterprises, 8 FSM Intrm 79, 84 (Pon 1997).

Congress has not unconstitutionally delegated its authority to define crimes by delegating to an executive agency the power to enter into fishing agreements because congressional approval is needed for these agreements to take effect. FSM v Cheng Chia-W(I), 7 FSM Intrm 124,127 (Pon 1995).

A defendant may be held criminally liable for failure to maintain a daily English language catch log as required under the terms of its foreign fishing agreement and the Harmonized Minimum Terms and Conditions. FSM v Cheng Chia-W (II), 7 FSM Intrm 205, 211-12 (Pon 1995).

A party to a foreign fishing agreement voluntarily assumes primary liability and responsibility for its own failure to comply with the law, and for similar failures on the part of its fishing vessels and vessel operators within the FSM. Such a party also assumes a legal duty to ensure that the operators of its licensed vessels comply with all applicable provisions of FSM law. FSM v Cheng Chia-W (II), 7 FSM Intrm 205, 212 (Pon 1995).

A party's failure to "ensure" its vessel's compliance with FSM law constitutes a breach of its foreign fishing agreement. FSM v Tint Hong Oceanic Enterprises, 8 FSM Intrm 79, 86 (Pon 1997).

When a fishing boat captain knows that he has caught fish and retained possession of fish while he had not maintained the required daily catch log in English that knowledge is attributable, under agency law principles, to the foreign fishing agreement party through which the boat was authorized. FSM v Tint Hong Oceanic Enterprises, 8 FSM Intrm 79, 91 (Pon 1997).

When the fishing statute sets forth a list of prohibited acts in the disjunctive, commission of anyone of the listed acts is unlawful, and the government may pursue separate civil penalties for each. FSM v Ting Hong Oceanic Enterprises, 8 FSM Intrm 79, 90 (Pon 1997).

While 24 F.S.M.C. 116 places a duty to maintain the daily catch log upon the vessel master, the statute does not make the vessel master's liability for failure to maintain that log exclusive. Therefore when a party to a foreign fishing agreement that says that party ensures that its authorized vessels will properly maintain such a log that party may be held liable. FSM v Ting Hong Oceanic Enterprises, 8 FSM Intrm 166, 174 (Pon 1997).

§ 405. Approval of foreign and domestic-based fishing agreements.

(1) To take effect within the exclusive economic zone, a foreign fishing agreement or domestic-based fishing agreement shall require the approval of the Congress of the Federated States of Micronesia by resolution.

(2) When Congress is not in session, an agreement shall take effect if approved by both the Committee on Resources and Development and the Committee on Ways and Means.

Source: PL 10-075 § 1.

Annotations

Congress has not unconstitutionally delegated its authority to define crimes by delegating to an executive agency the power to enter into fishing agreements because congressional approval is needed for these agreements to take effect. FSM v Cheng Chia-W(I), 7 FSM Intrm 124, 127 (Pon 1995).

§ 406. Domestic-based fishing agreements.

No domestic-based fishing vessels shall be issued a permit to fish in the exclusive economic zone without having entered into a domestic-based fishing agreement. Such fishing agreement shall have the same minimum terms required of foreign fishing agreements by Section 404 of this Title.

Source: PL 6-11 § 35.

§ 407. Allocation of allowable fishing between domestic-based fishing vessels.

The portion of the optimum sustainable yield allocated to domestic-based fishing vessels shall be divided by the Authority among domestic-based fishing vessels, if necessary. In determining the allocation among domestic-based fishing vessels, the Authority shall take into consideration:

(1) The extent to which each vessel or operator of such vessel has historically fished for a particular regulated species;

(2) The extent to which each vessel or operator contributes to the economic growth of the Nation;

(3) The extent to which each vessel or operator of such vessel has provided information necessary for the conservation and management of stocks of fish; and

(4) Such other provisions as the Authority deems appropriate.

Source: PL 6-11 § 36.

§ 408. Agreements affecting State waters.

After the effective date of the Constitution of the Federated States of Micronesia, the provisions of this Chapter are not applicable in the internal waters, Territorial Sea, and exclusive fishery zone of any State which does not approve the appropriate foreign fishing agreement or agreements.

Source: FSM Code (1982) § 416, as renumbered by PL 6-11 § 37.

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