FSMC, TITLE 24.  MARINE RESOURCES
 
 
 
Chapter 5:  Violations and Penalties

501.    Prohibited acts.
502.    Civil penalties.
503.    Criminal penalties.
504.    Forfeitures Liability.
505.    Forfeitures Jurisdiction.
506.    Forfeitures Seizures.
507.    Forfeitures Disposition of property.
508.    Forfeitures Temporary disposition of property; Security.
509.    Forfeitures Disposition of perishable articles.
510.    Revenues from fines and forfeitures.
511.    Jurisdiction of Courts.
512.    Enforcement responsibility.
513.    Enforcement authority.
514.    Enforcement of regulations and permits.
515.    Presumption of location of fishing.
516.    Immunities.
 
      501.  Prohibited acts.

   (1)   It is unlawful for any person:

   (a)   to violate any provision of a fishing permit, license, agreement, arrangement, treaty, or regulation issued pursuant to this title;

   (b)   to refuse to permit any authorized officer to board a fishing vessel for purposes of conducting any search or inspection in connection with the enforcement of this title or any regulation, permit, or foreign or domestic-based fishing agreement or any applicable fishing treaty, agreement or arrangement;

Case annotations:  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).

   (c)   to assault, obstruct, resist, delay, refuse boarding to, intimidate, or interfere with any authorized officer or authorized observer in performance of his duties, including in the conduct of any search or inspection described in paragraph (b) of this subsection; and for the purposes of this paragraph, any person who refuses to allow any authorized officer or observer, or any person acting under his order or in his aid, to exercise any of the powers conferred on an authorized officer or observer by this title or any regulations made under this title shall be deemed to be obstructing that officer, observer, or person;

Case annotations:  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).

   (d)   to fail to comply with the lawful requirements of any authorized officer or observer;

   (e)   to furnish to any authorized officer any particulars which, to his knowledge, are false or misleading in any respect;

   (f)   being on board any vessel being pursued or about to be boarded by any authorized officer, to throw overboard or destroy any fish, fishing gear, explosive, poison, or other noxious substance or thing or to avoid the detection of any offense under this tile or the regulations made under this title;

   (g)   to resist a lawful arrest for any act prohibited by this section;

   (h)   to provide information required to be recorded, notified or communicated pursuant to any requirement of the provisions of this title or the regulations, knowing or having reasonable cause to believe that it is false, incomplete or misleading;

   (i)   to knowingly ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of any fish taken or retained in violation of this title or any regional fishing treaty, regulation, permit, foreign or domestic-based fishing agreement or any applicable law;

Case annotations:  A defendant may be held criminally liable for knowingly shipping, transporting, or having custody, control, or possession of any fish taken or retained in violation of Title 24 or any regulation, permit, or foreign fishing agreement or any applicable law even when the vessel is operating under a valid permit.  FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205, 216 (Pon. 1995).

   (j)   to interfere with, delay, or prevent, by any means, the apprehension or arrest of another person, knowing that such person has committed any act prohibited by this section;

   (k)   to violate any provision of, or regulation under, any applicable agreement to implement a regional fisheries treaty, or any other treaty, agreement or arrangement having effect in the Federated States of Micronesia, entered into pursuant to section 106 of this title; or

   (l)   to use any foreign fishing vessel for fishing within one mile from submerged reefs within the EEZ, or within a two-mile radius of any fish aggregating device of the Government, a citizen, or any other body established under the laws of the Federated States of Micronesia;

   (m)   being a fishing vessel entitled to fly the national flag of the Federated States of Micronesia, to fish in waters under the national jurisdiction of a foreign nation unless duly authorized by the competent authorities of the foreign nation or nations concerned;

   (n)   to engage in driftnet fishing activities in the fishery waters;

   (o)   being a fishing vessel entitled to fly the national flag of the Federated States of Micronesia, to engage in driftnet fishing activities in the waters under the national jurisdiction of a foreign nation, in the high seas, or in an enclosed or semi-enclosed seas as defined in the United Nations Convention on the Law of the Sea of December 10, 1982; or

   (p)   to violate any provision of this title.

   (2)   It is unlawful for any fishing vessel, and for the crew, owner, or operator of any fishing vessel, to engage in fishing in the Exclusive Economic Zone without a valid and applicable fishing permit issued pursuant to this title or after revocation, or during the period of suspension of a permit issued pursuant to this title, where such permit is required by sections 103 and 104 of this title, and unless such fishing is permitted pursuant to section 106 of this title.

Source:  COM PL 7-71 1; PL IC-3 14; TT Code 1980, 52 TTC 201; PL 1-34 14; PL 5-37 6; 6-11 38; PL 9-47 1; PL 9-69 1, modified.

Case annotations:  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 defendant may be held criminally liable for failure to have a radio capable of monitoring VHF channel 16, the international safety and calling frequency, as required under the terms of its foreign fishing agreement.  FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205, 213-14 (Pon. 1995).

A defendant may be held criminally liable for exceeding the crew size authorized under the terms of its foreign fishing permit which is a term that the permit holder cannot unilaterally alter by use of the notification of changes provision in the permit.FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205, 214 (Pon. 1995).

A defendant may be held criminally liable for knowingly shipping, transporting, or having custody, control, or possession of any fish taken or retained in violation of Title 24 or any regulation, permit, or foreign fishing agreement or any applicable law even when the vessel is operating under a valid permit.  FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205, 216 (Pon. 1995).

      502.  Civil penalties.

   (1)   Any person who is found by the Supreme Court of the Federated States of Micronesia in a civil proceeding to have committed an act prohibited by section 501 of this chapter shall be liable to the Federated States of Micronesia for a civil penalty.

   (2)   The amount of the civil penalty shall not exceed $5,000,000 for each violation, except as otherwise provided herein.  Each day of a continuing violation shall constitute a separate offense.  The Supreme Court of the Federated States of Micronesia may impose a penalty in excess of $5,000,000 provided, in its review of the factors set forth in subsection (3) of this section, the Supreme Court finds that the defendant has committed a gross violation.

   (3)   In determining the amount of such penalty, the Supreme Court of the Federated States of Micronesia shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, and whether any other civil or criminal fine or any imprisonment has been imposed as a result of the specific conduct which has given rise to this action, and such other matters as justice may require.

   (4)   The Attorney General of the Federated States of Micronesia is authorized to initiate all proceedings under this section and to recover the amount assessed as a civil penalty.

   (5)   The proceeds of civil penalties shall be deposited into the General Fund of the Federated States of Micronesia.  Fifty percent of these proceeds from civil penalties shall then be distributed to the State affected.

Source:  COM PL 7-71 1, PL IC-3 15, TT Code 1980, 52 TTC 202; PL 3-9 1; PL 3-80 1; PL 6-37 1; PL 9-47 3.

      503.  Criminal penalties.

   (1)   A person is guilty of an offense if he commits any act prohibited by section 501 of this chapter.

   (2)   Unless another and different penalty is specifically provided by a law enacted by Congress for an offense, any offense described as a prohibited act by subsections (1)(a), (1)(i), (1)(k), or (1)(l) of section 501 of this chapter is punishable by a fine of not less than $10,000 and not to exceed $500,000.

   (3)   Unless another and different penalty is specifically provided by a law enacted by Congress for an offense, any offense described as a prohibited act by subsections (1)(b), (1)(c), (1)(d), (1)(e), (1)(f), (1)(g), (1)(h), or (1)(j) of section 501 of this chapter is punishable by a fine of not less than $100,000, or imprisonment for not more than two years, or both; PROVIDED that if in the commission of any such offense the person uses a dangerous weapon, engages in conduct that causes bodily injury to any officer authorized to enforce the provisions of this title, or threatens any such officer with bodily injury, the offense is punishable by a fine of not less than $500,000, or imprisonment for not more than ten years, or both; and PROVIDED FURTHER that where a regional fisheries treaty so requires, persons arrested for violating any provisions of, or regulations under, such treaty shall not be subject to imprisonment.

   (4)   Any offense described as a prohibited act by subsection (1)(m) of section 501 of this chapter is punishable by a fine not to exceed $5,000.

   (5)   Any offense described as a prohibited act by subsection (1)(n) or (1)(o) of section 501 of this chapter is punishable by a fine of not less than $1 million.

   (6)   Any offense described as a prohibited act by subsection (2) of section 501 of this chapter is punishable by a fine of not less than $500,000.  Each day of continuing violation shall be considered a separate offense.

   (7)   A violation of any provision of this title for which no other punishment is prescribed by law enacted by Congress is punishable by a fine not to exceed $5,000.

   (8)   In determining the amount of any fine and the length of any imprisonment, the Court shall take into account those factors set forth in section 502(3) of this chapter.

Source:  COM PL 7-71 1; TT Code 1980, 52 TTC 203; PL 1-34 15; PL 3-34 1; PL 5-37 7; 6-11 39; PL 9-47 1; 9-69 1, modified.

Case annotations:  A person may be held criminally liable for violating any provision of Title 24 or of any regulation or permit issued pursuant to Title 24, or any provision of, or regulation under, an applicable domestic-based or foreign fishing agreement entered into pursuant to Title 24, or any condition of any permit issued in accordance with Title 24 and any regulations made under Title 24, respectively.  FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205, 211 (Pon. 1995).

Congress, by prescribing a mandatory minimum penalty, has determined that the penalty is proportionate to the nature of the crimes involved.  FSM v. Cheng Chia-W (II), 7 FSM Intrm. 205, 219 (Pon. 1995).

      504.  Forfeitures Liability.

   (1)   Any fishing vessel involved in the commission of any act prohibited by section 501 of this chapter shall, along with its fishing gear, furniture, appurtenances, stores, or cargo used, be forfeited to the Federated States of Micronesia.
 
   (2)   Any fish taken or retained, in any manner, in connection with or as a result of the commission of any act prohibited by section 501 of this chapter shall be forfeited to the Federated States of Micronesia upon the commission of the act giving rise to forfeiture under this section.

   (3)   Any action for forfeiture pursuant to subsections (1) or (2) of this section shall be a civil proceeding.

Source:  COM PL 7-71 1; TT Code 1980, 52 TTC 204(1); PL 6-11 40.

Case annotations:  Any attempt to grant statutory authority to permit seizure of a fishing vessel upon a lesser standard than probable cause would raise serious questions of compatibility with art. IV, 3 and 4 of the Constitution.  Such an interpretation should be avoided unless clearly mandated by statute.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

Seizure under the FSM and Pohnpei Foreign Fishing statutes must be based upon probable cause, that is, grounds to believe it is more likely than not that a violation of the act has occurred and that the vessel was used in that violation.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

The fact that a fishing vessel approaches a reef is by itself some basis for some suspicion that it may intend to engage in fishing.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 78 (Pon. 1985).

A fishing vessel involved in criminal violations of FSM fishing laws is subject to forfeiture to the government in a civil proceeding against the vessel itself.  FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 587 (Pon. 1994).

      505.  Forfeitures Jurisdiction.
     The Supreme Court of the Federated States of Micronesia shall have jurisdiction, upon application by the Attorney General or the executive director on behalf of the Federated States of Micronesia, to order any forfeiture authorized under section 504 of this chapter.

Source: COM PL 7-71 1; PL IC-3 16; TT Code 1980, 52 TTC 204(2); PL 6-11 41.

      506.  Forfeitures Seizures.
     If a judgment is entered for the Federated States of Micronesia in a civil forfeiture proceeding under sections 504 through 509 of this chapter, the Attorney General shall seize any property or other interest declared forfeited to the Federated States of Micronesia, which has not previously been seized pursuant to this title.

Source:  COM PL 7-71 1; TT Code 1980, 52 TTC 204(3); PL 6-11 42.

      507.  Forfeitures Disposition of property.
     The forfeited vessel, gear, furniture, appurtenances, stores, cargo, and fish may be sold and the proceeds deposited into the General Fund of the Federated States of Micronesia and distributed in accordance with section 510 of this chapter.

Source: COM PL 7-71 1; TT Code 1980, 52 TTC 204(4); PL 6-11 43.

      508.  Forfeitures Temporary disposition of property; Security.

   (1)   Pending completion of the civil forfeiture proceeding, the seized vessel, gear, furniture, appurtenances, stores, cargo, and fish, or any part thereof, may be discharged at the discretion of the Court upon deposit with the Court of a satisfactory bond or other security at least equal to the fair market value of the seized property.

   (2)   Such bond or other security shall be conditioned upon such person delivering such property to the appropriate Court upon order thereof, without any impairment of its value, or paying the monetary value of such property pursuant to an order of such Court.

   (3)   Judgement shall be recoverable on such bond or other security against both the principle and any sureties in the event that any condition thereof is breached, as determined by such Court.

Source:  COM PL 7-71 1; TT Code 1980 52 TTC 204(5).

      509.  Forfeitures Disposition of perishable articles.

   (1)   Any fish, fish products, or other perishable articles seized or taken pursuant to this title may be sold, subject to the approval and direction of the Court.  The proceeds of any such sale shall be deposited with such Court pending the disposition of the civil forfeiture proceeding.

   (2)   For purposes of this title, it shall be a rebuttable presumption that:

   (a)   All fish found on board a fishing vessel which is seized or taken in connection with an act prohibited by section 501 of this chapter were taken or retained in violation of this title; and

   (b)   All fish found on board a transiting fishing vessel which vessel has been used in the commission of an offense in the exclusive economic zone, shall be deemed to have been caught in the exclusive economic zone.

Source: COM PL 7-71 1; TT Code 1980 52 TTC 204(6), (7); PL 6-11 44.

Case annotations:  The fact that a fishing vessel approaches a reef is by itself some basis for some suspicion that it may intend to engage in fishing.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 78 (Pon. 1985).
 
      510.  Revenues from fines and forfeitures.
     All fines and the proceeds of sale of all forfeitures collected pursuant to the provisions of this title shall be deposited into the General Fund of the Federated States of Micronesia.  Fifty percent of these revenues from fines and forfeitures shall then be distributed to the State affected.

Source: COM PL 7-71 1; PL IC-3 17; TT Code 1980, 52 TTC 205; PL 2-28 1.

      511.  Jurisdiction of Courts.

   (1)   The Supreme Court of the Federated States of Micronesia shall have exclusive jurisdiction over any case or controversy arising under this title.

   (2)   The Court may at any time enter restraining orders or prohibitions; issue warrants, process in rem, or other processes; prescribe and accept satisfactory bonds or other security; and take such other actions as are in the interests of justice.

Source:  COM PL 7-71 1; TT Code 1980, 52 TTC 207; PL 1-34 17; PL 6-11 45.

      512.  Enforcement responsibility.
     The Office of the Attorney General of the Federated States of Micronesia has primary responsibility for the enforcement of this title, and may authorize other entities, officials or persons to perform enforcement functions.

Source:  COM PL 7-71 1; PL IC-3 19; TT Code 1980, 52 TTC 208(1); PL 1-34 18; PL 1-91 1; PL 1-104 1; PL 6-11 46.

      513.  Enforcement authority.

   (1)   For the purpose of ascertaining whether there is or has been any contravention of the provisions of this title or any regulations passed thereunder, any authorized officer may:

   (a)   Upon the issuance of a warrant, at all reasonable hours, enter any fish processing establishment and any premises other than premises used exclusively as a dwelling-house;

   (b)   Stop, board and search:

   (i)  Any foreign or domestic-based fishing vessel within the fishery waters, or

   (ii)   Any domestic fishing vessel, inside or outside the fishery waters;

   (c)   Stop and search any vessel or vehicle transporting, or reasonably suspected of transporting, fish or fish products;

   (d)   Make such examination and inquiry as may appear necessary to him concerning any premises, fish processing establishment, vessel or vehicle in relation to which any of the powers conferred by this section have been, or may be exercised and take samples of any fish, or fish products, found therein;

  (e)   Require any person to produce his permit or his authority if it appears to the authorized officer that such person is doing any act for which a permit or other authority is required under this title and take copies of any such license or other authority;

   (f)   Require any person to produce any logbook, record or other document required to be held by him under this title or any regulations made under this title and take copies of such logbook, record or other document.

   (2)   Where he has reasonable cause to believe that an offense against the provisions of this title or any regulations made under this title has been committed, any authorized officer may, with or without a warrant or other process:

   (a)   Following hot pursuit in accordance with international law and commenced within the fishery waters, stop, board and search inside or outside the fishery waters any fishing vessel which he believes has been used in the commission of that offense within the fishery waters or in relation to which he believes such offense has been committed and bring such vessel and all persons and things on board within the fishery waters;

   (b)   Within the fishery waters:

   (i)   Arrest any person if he has reasonable cause to believe that such person has committed an offense prohibited by this title or any regulations issued under this title;

   (ii)   Seize any fishing vessel used or employed in, or when it reasonably appears to have been used or employed in, the violation of any provision of this title or any regulations issued under this title;

   (iii)   Seize any fishing gear, furniture, appurtenances, stores, cargo, and fish in or on a fishing vessel seized pursuant to this section; and

   (iv)   Seize any fish which he reasonably believes to have been taken or fish products produced in violation of any provision of this title or any regulations issued under this title.

   (3)   Any authorized officer may execute any warrant or other process issued by any court of competent jurisdiction.

   (4)   Where following the commission of an offense under this title by a foreign fishing vessel, that vessel is pursued beyond the limits of the fishery waters, the powers conferred on authorized officers under this section shall be exercisable beyond the limits of the fishery waters in accordance with international law.

   (5)   Any authorized officer may exercise any other lawful authority for the enforcement of this title and any regulations issued under this title.

Source:  COM PL 7-71 1; PL IC-3 19; TT Code 1980, 52 TTC 208(2); PL 6-11 47.

Case annotations:  While the FSM and Pohnpei foreign fishing statutes pose no specific requirements as grounds for the search of a fishing vessel, the power to seize is carefully conditioned upon illegal use of the vessel.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (Pon. 1985).

Any attempt to grant statutory authority to permit seizure of a fishing vessel upon a lesser standard than probable cause would raise serious questions of compatibility with art. IV, 3 and 4 of the Constitution.  Such an interpretation should be avoided unless clearly mandated by statute.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

Seizure under the FSM and Pohnpei Foreign Fishing statutes must be based upon probable cause, that is, grounds to believe it is more likely than not that a violation of the act has occurred and that the vessel was used in that violation.  Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

The government has probable cause to detain a fishing vessel for illegal fishing when the evidence and information indicate that the vessel was conducting fishing operations within the FSM Exclusive Economic Zone, there was freshly caught fish aboard, and the permit provided to the officers contained a name different from the actual name of the vessel.  FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 590-91 (Pon. 1994).

      514.  Enforcement of regulations and permits.
     For purposes of this chapter the terms provisions of this title and violation of any provisions of this title include the provisions of any regulation or permit issued pursuant to this title.

Source:  COM PL 7-71 1; PL IC-3 19; TT Code 1980, 52 TTC 208(3).

      515.  Presumption of location of fishing.
     Where, in any legal proceedings instituted under this title or any regulations issued under this title, the place in which an event is alleged to have taken place is in issue, the place stated in a copy of the relevant entry in the logbook or other official record of an enforcement vessel or aircraft as being the place in which the event took place shall be presumed to be the place in which the event took place, unless the contrary is proved.

Source:  PL 6-11 48.

      516.  Immunities.
     No action shall lie against the Authority, any authorized officer or observer, or any other person appointed pursuant to this title in respect of anything done or omitted to be done by him in good faith in the execution or purported execution of his powers and duties under this title or regulations issued under this title.

Source: PL 6-11 49.
                                                                                                                                                                                                                                                                                                           
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