Foreign Fishing

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

Cross-reference: For the definition of “foreign fishing,” see section 102(23) of this title; for provisions on the exclusive economic zone, see section 104 of title 18.

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 article IV, sections 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).

Negotiations between FSM Nat’l Government and a U.S. owned fishing vessel reflect the new role of the national government and the methods by which the people of the Federated States of Micronesia govern their relations with other members of the community of nations. In this context, it is entirely appropriate to draw on principles of common law for guidance. FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987).

Regulation of the Exclusive Economic Zone rests exclusively with the Micronesian Maritime Authority, 24 FSMC 301-02. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 69 (Pon. 1993).

To the extent that the state is unable to police its waters and enforce its fishing regulations of its own, the national government has an obligation to provide assistance. However, to the extent that the national government must provide assistance, the power to regulate state waters is beyond the state’s control and is in fact a concurrent national power. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).

The issue of whether all vessels in a purse seiner group can be held liable for the illegal fishing of one of the vessels inside the twelve mile territorial sea is not reached when there is insufficient evidence to prove by a preponderance of the evidence that one vessel was searching for fish inside the twelve mile limit. FSM v. Kotobuki Maru No. 23 (II), 6 FSM Intrm. 159, 165 (Pon. 1993).

The regulation of foreign commercial fishing in state waters — within a limit of 12 miles, is a matter of state law. Pohnpei v. M/V Zhong Yuan Yu #606, 6 FSM Intrm. 464, 465 (Pon. 1994).

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 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).

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).

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 chapter.

(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 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.

(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: COM PL 7-71 § 1; TT Code 1980, 52 TTC 152(2); PL 1-34 § 11; PL 3-10 § 6; PL 6-11 § 33; PL 9-57 § 1.

Case annotations: A condition on an MMA fishing permit which prohibits fishing within 12 miles of the FSM unless authorized by the state which has jurisdiction is an exercise of the national government’s unexpressed concurrent national power. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993).

(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 IC-3 § 1; TT Code 1980, 52 TTC 152(10); PL 1-34 § 1; PL 3-10 § 7; PL 6-11 § 34; PL 10-75 § 1.

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 chapter.

§ 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

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 the exclusive fishery zone of any State which does not approve the appropriate foreign fishing agreement or agreements.

	FSMC, TITLE 24. MARINE RESOURCES
	Chapter 4: Foreign Fishing § 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. § 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: COM PL 7-71 § 1; TT Code 1980, 52 TTC 152(1); PL 6-11 § 30. Cross-reference: For the definition of “foreign fishing,” see section 102(23) of this title; for provisions on the exclusive economic zone, see section 104 of title 18. 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 article IV, sections 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). Negotiations between FSM Nat’l Government and a U.S. owned fishing vessel reflect the new role of the national government and the methods by which the people of the Federated States of Micronesia govern their relations with other members of the community of nations. In this context, it is entirely appropriate to draw on principles of common law for guidance. FSM v. Ocean Pearl, 3 FSM Intrm. 87, 91 (Pon. 1987). Regulation of the Exclusive Economic Zone rests exclusively with the Micronesian Maritime Authority, 24 FSMC 301-02. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 69 (Pon. 1993). To the extent that the state is unable to police its waters and enforce its fishing regulations of its own, the national government has an obligation to provide assistance. However, to the extent that the national government must provide assistance, the power to regulate state waters is beyond the state’s control and is in fact a concurrent national power. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993). The issue of whether all vessels in a purse seiner group can be held liable for the illegal fishing of one of the vessels inside the twelve mile territorial sea is not reached when there is insufficient evidence to prove by a preponderance of the evidence that one vessel was searching for fish inside the twelve mile limit. FSM v. Kotobuki Maru No. 23 (II), 6 FSM Intrm. 159, 165 (Pon. 1993). The regulation of foreign commercial fishing in state waters — within a limit of 12 miles, is a matter of state law. Pohnpei v. M/V Zhong Yuan Yu #606, 6 FSM Intrm. 464, 465 (Pon. 1994). 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 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). 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). § 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 chapter. Source: PL 6-11 § 31. § 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 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: COM PL 7-71 § 1; TT Code 1980, 52 TTC 152(2); PL 1-34 § 11; PL 3-10 § 6; PL 6-11 § 33; PL 9-57 § 1. Case annotations: A condition on an MMA fishing permit which prohibits fishing within 12 miles of the FSM unless authorized by the state which has jurisdiction is an exercise of the national government’s unexpressed concurrent national power. FSM v. Kotobuki Maru No. 23 (I), 6 FSM Intrm. 65, 73 (Pon. 1993). § 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 IC-3 § 1; TT Code 1980, 52 TTC 152(10); PL 1-34 § 1; PL 3-10 § 7; PL 6-11 § 34; PL 10-75 § 1. § 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 chapter. Source: PL 6-11 § 35, modified. § 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 the exclusive fishery zone of any State which does not approve the appropriate foreign fishing agreement or agreements. Source: PL IC-3 § 13, TT Code 1980, 52 TTC 155; PL 6-11 § 37. Cross-reference: FSM Const., art. IX, § 2(m).