Chapter 1: General
Provisions
§ 101. Statement of purpose.
§ 102. Definitions.
§ 103. Fishing permits required — Commercial.
§ 104. Fishing permits required — Noncommercial.
§ 105. Stowage of fishing gear.
§ 106. Authority to enter into regional, bilateral, and multilateral fisheries agreements.
§ 107. Authority to enter into domestic-based and foreign fishing agreements.
§ 108. Allowable levels of fishing.
§ 109. Application for permit — Contents.
§ 110. Application for permit — Review.
§ 111. Application for permit — Issuance and denial.
§ 112. Suspension, revocation, or imposition of restrictions on a permit.
§ 113. Fees for scientific research, training, commercial pilot, and foreign recreational fishing permits.
§ 114. Rebate of fees.
§ 115. Division of fees received as goods and services.
§ 116. Reporting requirements.
§ 117. Authority to issue State permits.
§ 118. Authority to appoint observers.
§ 119. Application of other laws.
§ 120. Severability.
The resources of the sea around the Federated States of Micronesia are a finite but renewable part of the physical heritage of our people. As the Federated States of Micronesia has only limited land-based resources, the sea provides the primary means for the development of economic viability which is necessary to provide the foundation for political stability. The resources of the sea must be managed, conserved, and developed for the benefit of the people living today and for the generations of citizens to come. For this reason the harvesting of this resource, both domestic and foreign, must be monitored, and when necessary, controlled. The purpose of this title is to promote conservation, management, and development of the marine resources of the Federated States of Micronesia, generate the maximum benefit for the Nation from foreign fishing, and to promote the development of a domestic fishing industry.
Source: COM PL 7-71 § 1; TT Code 1980, 52 TTC 1; PL 6-11 § 1.
Editor’s note: The provisions of this chapter apply to sections 101 through 107 of title 18 of this code, which were enacted as part of PL 7-71.
As used in this title the
term:
(1) “Administrator” means the director of a regional fisheries agency or any other organization or person authorized, pursuant to section 106 of this title, to administer a regional fisheries treaty.
(2) “Applicable laws” means those laws affecting marine resources from time to time identified by the Authority by regulation.
(3) “Atoll” means a naturally formed coral reef system which has one or more islands situated on the reef system, including Ngulu, Ulithi, Sorol, Eauripik, Woleai, Faraulep, Ifalik, Olaimarao, Elato, Lamotrek, West Fayu, Polowat, Pulap, Houk, Namonuito, Kuop, Nomowin, Murilo, Losap, Namoluk, Satawan, Etal, Lukunor, Minto Reef, Oroluk, Nukuoro, Kapingamarangi, Pakin, Ant, Sapwuahfik, Mwoakiloa, and Pingelap.
(4) “Authority” means the Micronesian Fisheries Authority established by section 301 of this title.
(5) “Authorized observer” means any person authorized in writing by the Authority to act as an observer on foreign fishing vessels, including any observer authorized pursuant to a regional fisheries treaty to be an authorized observer for purposes of this title.
(6) “Authorized officer” means any officer of the Division of Security and Investigation of the Government of the Federated States of Micronesia or any other person authorized in writing by the Secretary of Justice to be an authorized officer for the purposes of this title.
(7) “Based in the Federated States of Micronesia” means using land-based facilities in the Federated States of Micronesia to support fishing, including location of the home port of a vessel in the Federated States of Micronesia, selling all fish for processing within the Federated States of Micronesia, transshipping all fish harvested within the Exclusive Economic Zone, and basing operations in the Federated States of Micronesia while operating in the Exclusive Economic Zone.
(8) “Commercial pilot fishing” means any fishing for the purpose of testing the commercial viability of:
(a) new fishing methods;
(b) developing new stocks of fish; or
(c) fishing in previously unexploited areas.
(9) “Court” means the Supreme Court of the Federated States of Micronesia.
(10) “Drift net” means a gillnet or other net or a combination of nets which is more than 2.5 kilometers in length the purpose of which is to enmesh, entrap or entangle fish by drifting on the surface of or in the water.
(11) “Drift net fishing activities” means:
(a) catching, taking or harvesting fish with the use of a drift net;
(b) attempting to catch, take or harvest fish with the use of a drift net;
(c) engaging in any other activity which can reasonably be expected to result in the catching, taking or harvesting of fish with the use of a drift net, including searching for and locating fish to be taken by that method;
(d) any operations at sea in support of, or in preparation for any activity described in this paragraph, including operations of placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons;
(e) aircraft use, relating to the activities described in this paragraph, except for flights in emergencies involving the health or safety of crew members or the safety of a vessel; or
(f) transporting, transhipping and processing any drift net catch, and cooperation in the provision of food, fuel and other supplies for vessels equipped for or engaged in drift net fishing.
(12) “Domestic-based fishing” means any fishing by foreign fishing vessels based in the Federated States of Micronesia, but not including commercial pilot fishing.
(13) “Domestic-based fishing agreements” means an agreement between the Government of the Federated States of Micronesia and one or more persons to permit domestic-based fishing within the Exclusive Economic Zone.
(14) “Domestic-based party” means a party to a domestic-based fishing agreement other than the Government of the Federated States of Micronesia or a State.
(15) “Domestic fishing” means any fishing by local fishing vessels longer than twenty-seven feet in overall length, but not including commercial pilot fishing.
(16) “Exclusive Economic Zone” means the exclusive economic zone defined in title 18 of the Code of the Federated States of Micronesia.
(17) “Executive director” means the executive director of the Micronesian Fisheries Authority.
(18) “Fish” means any living marine resource.
(19) “Fish aggregating device” means any manmade or partly manmade floating device, whether anchored or not, intended for the purpose of aggregating fish, and includes any floating object on a device which has been placed to facilitate its location.
(20) “Fishery” means any fishing for stocks of fish.
(21) “Fishery waters” means the Exclusive Economic Zone, the Territorial Sea, and internal waters as described in title 18 of the Code of the Federated States of Micronesia, and any other waters within the jurisdiction of the Federated States of Micronesia.
(22) “Fishing” means:
(a) the actual or attempted searching for, catching, taking, or harvesting of fish;
(b) any other activity which can reasonably be expected to result in the locating, catching, taking, or harvesting of fish;
(c) the placing, searching for, or recovery of fish aggregating devices or associated electronic equipment such as radio beacons;
(d) aircraft use relating to the activities described in this subsection, except for flights in emergencies involving the health or safety of crew members or the safety of a vessel;
(e) transshipping fish to or from any vessel;
(f) storing, processing or transporting fish harvested within the fishery waters;
(g) refueling or supplying fishing vessels; or
(h) any operations at sea in support of or in preparation for any activity described in this subsection.
(23) “Fishing gear” means any equipment, implement or other thing that can be used in the act of fishing, including any fishing net, rope, line, float, trap, hook, winch, boat carried on board a fishing vessel, aircraft or helicopter.
(24) “Fishing vessel” means any vessel, boat, ship, or other craft which is used for, equipped to be used for, or of a type that is normally used for:
(a) fishing;
(b) aiding or assisting one or more vessels at sea in the performance of any activity related to fishing, including, but not limited to preparation, supply, storage, refrigeration, transportation, or processing.
(25) “Foreign fishing” means
any fishing not defined as domestic fishing or domestic-based fishing, but
not including commercial pilot fishing or fishing from a local fishing
vessel less than or equal to twenty-seven feet in overall
length.
(26) “Foreign fishing agreement” means an agreement between the Authority on behalf of the Government of the Federated States of Micronesia and one or more foreign fishing interests to permit foreign vessels to harvest fish within the Exclusive Economic Zone.
(27) “Foreign fishing vessel” means any fishing vessel not defined as a local fishing vessel.
(28) “Foreign party” means a party to a foreign fishing agreement other than the Authority, the Government of the Federated States of Micronesia or a State government.
(29) “Foreign recreational fishing” means fishing by a foreign fishing vessel for recreational or sport purposes.
(30) “Island” means a naturally formed area of land surrounded by water, which is above water at high tide.
(31) “Living marine resource” means all forms of marine animal and plant life other than marine birds and includes, finfish, mollusks, and crustaceans.
(32) “Local fishing vessel” means any fishing vessel wholly owned and operated by one or more of the following:
(a) the Government of the Federated States of Micronesia, any State government or any subdivision thereof;
(b) any citizen of the Federated States of Micronesia;
(c) any corporation or cooperative established under the laws of the Federated States of Micronesia or of any State which is wholly owned and controlled by one or more of the persons described in paragraphs (a) and (b) of this subsection;
(d) any combination of persons described in paragraphs (a) through (c) of this subsection.
(33) “Operator” means any person who is in charge of, directs, or controls a vessel, including the owner, charterer, or the master.
(34) “Pacific Island States” means the parties to the South Pacific Forum Fisheries Agency Convention, 1979.
(35) “Permit” means the document authorizing fishing within all or part of the Exclusive Economic Zone issued pursuant to section 111 of this title or pursuant to a treaty, or any agreement or arrangement entered into pursuant to section 106 of this title.
(36) “Person” means any individual, corporation, partnership, association, or other entity, the Government of the Federated States of Micronesia or any of the States, or any political subdivision thereof, and any foreign government, subdivision of such government, or entity thereof.
(37) “Regional fisheries treaty” means a treaty between the governments of certain Pacific Island States and governments, bodies or organizations of foreign States other than Pacific Island States that relates to fishing in the waters of the Pacific Island States and has entered into force according to its terms, and has been ratified by the Congress of the Federated States of Micronesia.
(38) “Regional fishing license” means a regional fishing license issued to a foreign fishing vessel pursuant to a regional fisheries treaty.
(39) “State” means any of the States of the Federated States of Micronesia.
(40) “Stock of fish” means a species, subspecies, or other category of fish identified on the basis of geographical, scientific, technical, recreational, and economic characteristics which can be treated as a unit for purposes of conservation and management.
Source: COM PL 7-71 § 1; PL IC-3 §§ 1-4; TT Code 1980, 52 TTC 2; PL 1-34 § 1; PL 5-37 § 1; PL 6-11 § 2; PL 9-47 § 1; PL 11-57 § 1, modified.
Editor’s note: Subsections (2) through (38) were misnumbered in PL 6-11. They were subsequently renumbered in PL 9-47 § 1.
No domestic, domestic-based,
commercial pilot, or foreign fishing is permitted in the exclusive
economic zone except:
(1) By a valid and applicable permit issued under authority conferred by this title; or
(2) By a regional or multilateral license issued pursuant to a treaty or agreement entered into under the authority provided in section 106 of this chapter.
Source: PL 6-11 § 4.
Case annotations: Conditions on commercial fishing permits issued by the Micronesian Maritime Authority need not be “reasonable” as with recreational permits.FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).
No scientific research, training, or
foreign recreational fishing is permitted in the exclusive economic zone
except by a valid and applicable permit issued by the Authority on such
reasonable terms and conditions as it shall require.
Source: PL 6-11 § 5.
Case annotations: Conditions on commercial fishing permits issued by the Micronesian Maritime Authority need not be “reasonable” as with recreational permits.FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).
All fishing gear aboard a fishing
vessel in the exclusive economic zone shall be stowed in such a manner
that it is not readily available for use in fishing, except when such
fishing vessel is in an area in which it is authorized to fish in
accordance with this title.
Source: PL 6-11 § 6.
Case annotations: A defendant cannot be held criminally liable for failure to properly stow all fishing gear aboard a vessel in such a manner that it would not be readily available for use in fishing when the vessel was in an area in which it was authorized to fish. FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205, 215 (Pon. 1995).
(1) Notwithstanding any other provisions of this title, the Authority may enter into agreements or arrangements, pursuant to a regional, bilateral, or multilateral fisheries treaty, agreement or arrangement with other governments to provide for:
(a) authorization of a person, body or organization to perform functions required by such a treaty, agreement or arrangement, including but not limited to, the issuance of regional fishing licenses; and
(b) an observer program.
(2) For the purpose of giving effect to a regional, bilateral, or multilateral fisheries treaty, agreement or arrangement, the Authority may adopt regulations to:
(a) exempt any foreign fishing vessel holding a valid regional, multilateral, or bilateral fishing license issued pursuant to a regional, bilateral, or multilateral fisheries treaty, agreement, or arrangement from any requirements of this title which are inconsistent with the terms of such treaty, agreement or arrangement;
(b) prescribe the conditions to be observed by operators of foreign fishing vessels exempted under paragraph (a) of this subsection; and
(c) authorize observers designated and pursuant to an
observer program entered into pursuant to subsection (1)(b) of this
section to:
(i) enforce the provisions of this title and any regional fisheries treaty, agreement or arrangement on behalf of the Federated States of Micronesia; and
(ii) perform such duties and responsibilities as may be required by such agreement.
(3) With respect to any observer program entered into pursuant to subsection (1)(b) of this section, standing in the Supreme Court of the Federated States of Micronesia shall be afforded to any authorized observer or the Federated States of Micronesia to bring action against any person or fishing vessel for any act or offense that is actionable under the law of the Federated States of Micronesia or is a violation of the treaty, agreement or arrangement pursuant to which the observer was authorized, which has occurred on the high seas, notwithstanding the nationality of the observer.
Source: PL 6-11 § 7.
Cross-reference: The statutory provisions on Foreign Relations are found in title 10 of this code.
The Authority is authorized to
negotiate and enter into such domestic-based and foreign fishing
agreements as may be required to implement this title. Such
agreements may, at the Authority’s discretion, include a provision to
rebate fees under such circumstances as are consistent with this title and
the Authority deems appropriate.
Source: PL 6-11 § 8.
Case annotations: A vessel defined as a foreign fishing vessel for permitting purposes must enter into a foreign fishing agreement prior to receiving any fishing permits. Katau Corp. v. Micronesian Maritime Auth., 6 FSM Intrm. 621, 623 (Pon. 1994).
Because the Micronesian Maritime Authority has discretion in negotiating and entering into foreign fishing agreements and because statutorily a fishing permit cannot be issued without a signed agreement a court cannot issue a writ of mandamus to compel issuance of a fishing permit because it cannot order performance of a statutorily forbidden act. Katau Corp. v. Micronesian Maritime Auth., 6 FSM Intrm. 621, 624 (Pon. 1994).
(1) The Authority may determine the total allowable level of fishing with respect to any stock of fish subject to the provisions of this title, and shall set such level in accordance with requirements of optimum sustainable yield as determined by:
(a) the scientific evidence available, including statistical and other information concerning such stocks of fish; and
(b) conservation, management and development measures contained in management plans relating to such stocks of fish.
(2) Allocations of the total allowable level of fishing with respect to any stock of fish shall be made first to domestic fishing vessels seeking permits, then to domestic-based fishing vessels, with any remaining allowable level of fishing allocated to foreign fishing vessels.
(3) Allocations issued pursuant to this title may include restrictions as to vessel type, gear type, seasons of operations, areas in which the fishing can take place, or any other restriction relevant to conservation, management, and development.
Source: PL 6-11 § 9.
(1) Each party entitled to apply for a permit under this title shall make application on prescribed forms specifying:
(a) the name, official number, and other identification of each fishing vessel for which a permit is sought, together with the name and address of the owner and operator thereof;
(b) the tonnage, capacity, processing equipment, and such other pertinent information with respect to characteristics of each such vessel as the Authority may require;
(c) the country of registration of the vessel; and
(d) if applicable, the foreign fishing agreement or domestic-based fishing agreement under which such permit is sought.
(2) The Authority may require, by regulation, such additional information for permit applications by foreign parties or domestic-based parties as is necessary to implement and enforce the provisions of this title.
Source: PL 6-11 § 10.
Case annotations: A party entitled to apply for a fishing permit must file an application on prescribed forms; otherwise the Micronesian Maritime Authority cannot issue a fishing permit. An applicant may be given an opportunity to cure any defects in a filed permit application. Katau Corp. v. Micronesian Maritime Auth., 6 FSM
Intrm. 621, 625 (Pon. 1994).
The Authority, or such person as it
may designate by regulation, shall review each application submitted
pursuant to section 109 of this chapter, and may, in its discretion
solicit views from appropriate persons in the States and hold public
hearings where necessary.
Source: PL 6-11 § 11, modified.
(1) The Authority shall notify the applicant of the decision to issue or deny a permit within 30 days of the date of receipt of the application. If no such notification is given within 30 days, the request for a permit is deemed granted.
(2) The Authority may approve the application on such terms and conditions and with such restrictions as it deems appropriate.
(3) A permit may be denied:
(a) where the application is not in accordance with the requirements of this title;
(b) where the application is made in respect of a foreign fishing vessel, and such vessel does not have good standing on the Regional Register of Foreign Fishing Vessels maintained by the South Pacific Forum Fisheries Agency;
(c) where the owner or charterer is the subject of proceedings under the bankruptcy laws of any jurisdiction and reasonable financial assurances have not been provided;
(d) where there has been a failure to satisfy a judgment or other determination for breach of this title or an agreement entered into pursuant to this title by the operator of the vessel in respect to which application for a permit has been made, until such time as the judgment or other determination is satisfied;
(e) where an operator of the vessel has contravened, or the vessel has been used for contravention of a fishing agreement, or has committed an offense against the laws of the Federated States of Micronesia; or
(f) where the Authority determines that the issuance of a permit would not be in the best interests of the Federated States of Micronesia.
(4) A permit shall be denied:
(a) where the Authority determines that the permit would authorize foreign fishing or domestic-based fishing on, over, or within one nautical mile of the edge of a coral reef that is wholly submerged at mean high tide within the exclusive economic zone; or
(b) where the Authority determines that the permit would authorize fishing on, over, or within one nautical mile of the edge of a coral reef that is wholly submerged at mean high tide within the exclusive economic zone, and that subsection (a) of this section does not apply to the permit application; and
(i) the Authority has submitted a copy of the application to the State, to the customary inhabitants of which, the authority to control the fishing over such reef has been traditionally ascribed. The Authority shall have the power to prescribe by regulation the ascription of such reefs to each of the States. For the purposes of this subsection (b), the State shall mean the Governor thereof, and the councils of traditional leaders established by law having the constitutional authority to affect the enactment of State legislation; and
(ii) within 30 days of such submission, the State, or any constituent part thereof, has communicated in writing to the Authority its objection to the issuance of the permit with respect to the reef or reefs traditionally ascribed to its customary inhabitants.
(c) where the Authority determines that the permit would authorize fishing with or by means of the use of a drift net or gill net or other substantially similar method of catching fish.
(5) If the Authority denies an application submitted by an applicant, the Authority shall notify such applicant of the disapproval and the reasons therefore. The applicant may then submit a revised application taking into consideration the reasons for disapproval.
Source: PL 6-11 § 12, PL 7-22 § 1.
If any fishing vessel for which a
permit has been issued pursuant to section 111 of this chapter has been
used in the commission of any act prohibited by this title or other
applicable law, an applicable domestic-based or foreign fisheries
agreement or any permit issued in accordance with this title, or if any
civil penalty or criminal fine imposed under this title has not been paid
within 30 days, the Authority shall:
(1) Revoke such permit with or without prejudice to the right of any party involved to be issued a permit for such vessel in any subsequent year;
(2) Suspend such permit for the period of time deemed appropriate; or
(3) Impose additional conditions and restrictions on any permit issued pursuant to this title.
Source: PL 6-11 § 13, modified.
§ 113. Fees for
scientific research, training, commercial pilot, and foreign recreational
fishing permits.
Fees for scientific research,
training, commercial pilot, and foreign recreational fishing shall be
established pursuant to regulations issued by the
Authority.
Source: PL 6-11 § 14.
The Authority may accept all or a
portion of the fee paid under a domestic-based or foreign fishing
agreement pending rebate pursuant to the agreement. That portion of
a fee that is subject to rebate shall be held in a separate trust account
maintained by the Secretary of Finance until rebated to the foreign or
domestic-based fishing venture or paid into the General Fund, or its
successor, pursuant to the terms of the agreement.
Source: PL 6-11 § 15.
In the case of fees paid as goods or
services rather than money, the Authority shall submit a proposed division
of such goods or services to the Congress of the Federated States of
Micronesia for its approval by resolution while in session, and by the
Committee on Ways and Means of the Congress of the Federated States of
Micronesia between sessions. If the Congress does not approve a
division of such goods and services within 60 days of the submission of a
proposed division of such fees by the Authority, the proposed division
shall be deemed approved.
Source: PL 6-11 § 16.
(1) The master of each foreign fishing vessel issued a permit or which is permitted to fish pursuant to a treaty or any agreement or arrangement referred to in section 106 of this chapter shall at all times while the vessel is in the fishery waters, cause to be maintained in the English language a fishing log in a form supplied or approved by the Authority, and shall enter the following information relating to the activities of the vessel on a daily basis:
(a) The gear type used;
(b) The noon position of the vessel and, where applicable, the set location and time;
(c) The species of fish taken and the quantity of each species by weight or number as may be specified in the form;
(d) The species of fish returned from the vessel to the sea, the quantity of each species by weight or number as may be specified in the form, and the reasons for discard; and
(e) Such other information as the Authority may prescribe by regulation or as may be required by an applicable treaty, agreement, or arrangement.
(2) The original log form described in subsection (1) of this section shall be sent to the Authority by registered airmail within 30 days of entry of the vessel into port at the completion of the relevant trip, or as provided in the applicable treaty, agreement, or arrangement.
(3) The owner or operator of a local fishing vessel longer than 27 feet in overall length shall maintain a fishing log in a prescribed form issued by the Authority, in which he shall enter the following information relating to the activities of the vessel on each fishing day:
(a) the type of gear used;
(b) time and location where such fishing activities have taken place;
(c) species of fish taken and quantity of each species by weight and number as may be specified in a form issued by the Authority; and
(d) such other information as the Authority may require in a specified form.
(4) The owner or operator referred to in subsection (3) of this section shall send by registered mail or deliver such fishing logs to the Authority within seven days of the end of each calendar month’s activities, or within seven days of entry of the vessel into port at the completion of a trip lasting longer than 14 days.
(5) The Authority, by regulation, may prescribe such other reporting requirements as may be required for the conservation and management of marine resources and to enforce the provisions of this title.
Source: PL 6-11 § 17, modified.
If authorized by appropriate State
law, the Authority may issue permits for fishing in the Territorial Sea or
internal waters in accordance with State law. Any fees collected for
fishing within the Territorial Sea or internal waters shall be transferred
to the State for which the permit was granted.
Source: PL 6-11 § 18.
Pursuant to regulations issued by the
Authority, the executive director may appoint, in writing, any person to
be an authorized observer.
Source: PL 6-11 § 19.
No permit issued under this title
shall relieve any fishing vessel or its operator or crew of any obligation
or requirements imposed by other laws, including those concerning
navigation, customs, immigration, or health, unless so indicated in those
laws.
Source: PL 6-11 § 20.
If any provision of this title or
amendments or additions thereto, or the application thereof to any person,
thing, or circumstances is held invalid, the invalidity does not affect
the provisions or application of this title or the amendments or additions
that can be given effect without the invalid provisions or application,
and to this end the provisions of this title and the amendments and
additions thereto are severable.
Source: PL 7-71 §
5 (uncodified); PL 6-11 § 21.