Public Law 18-108

CBL 18-133 EIGHTEENTH CONGRESS OF THE FEDERATED STATES OF MICRONESIA THIRD REGULAR SESSION, 2014 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 AN ACT To further amend chapters 1, 5, and 9 of title 24 of the Code of the Federated States of Micronesia, as amended, by adding “Shark” and “Shark Fin” to the Definition section in chapter 1; by adding a new section 503 and by renumbering existing sections 503 as section 504 in chapter 5, for the purpose of requiring that all vessels land their by catch at port; by amending sections 913 and 914 in chapter 9 to prohibit the practice of shark finning and extend civil penalties to apply to such violations, by modifying what is considered as destruction of evidence, and for other purposes.” BE IT ENACTED BY THE CONGRESS OF THE FEDERATED STATES OF MICRONESIA: Section 1. Section 102 of Title 24 of the Code of the 1 Federated States of Micronesia, as enacted by Public Law No. 2 12-34, is hereby amended to read as follows: 3 “Section 102. Definitions. In this subtitle, except 4 where otherwise specified, the following terms shall have 5 the meanings stated below: 6 (1) ‘Access agreement’ means a treaty, agreement or 7 arrangement entered into by the Authority pursuant to this 8 act in relation to access to the exclusive economic zone 9 for fishing by foreign fishing vessels, and includes 10 bilateral and multilateral instruments applicable at the 11 national, multilateral instruments applicable at the 12 national, sub regional, regional or international level. 13 (2) ‘Administrator’ means the director of a regional 14 fisheries agency or any other organization or person 15 authorized, pursuant to section 106 of chapter 1 of this 16 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 2 of 18 subtitle, to administer a fisheries access agreement or 1 fisheries management agreement to which the Federated 2 States of Micronesia is party. 3 (3) ‘Agent’ includes a person appointed or designated 4 by a foreign fishing company to act as the legal 5 representative of that company within the Federated States 6 of Micronesia, including acceptance of and response to 7 legal process, pursuant to section 404(4) (a) of chapter 4 8 of this subtitle. 9 (4) ‘Aircraft’ means any craft capable of self-sustained 10 movement through the atmosphere and includes helicopters. 11 (5) ‘Atoll’ means a naturally formed coral reef system 12 which has one or more islands situated on the reef system, 13 including, but not limited to, Ngulu, Ulithi, Sorol, 14 Eauripi, Woleai, Faraulep, Ifalik, Olaimarao, Elato, 15 Lamotrek, West Fayu, Puluwat, Pulap, Pulusuk, Nomonuito, 16 Kuop, Nomowin, Murilo, Losap, Namoluk, Satawan, Etal, 17 Lukunor, Minto Reef, Oroluk, Nukuoro, Kapingamarangi, 18 Pakin, Ant, Sapwuahfik, Mwoakilloa and Pingelap. 19 (6) ‘Authority’ means the National Oceanic Resource 20 Management Authority established by section 201 of chapter 21 2 of this subtitle. 22 (7) ‘Authority observer’ means any person authorized in 23 writing by the Authority to act as an observer on fishing 24 vessels for the purposes of this subtitle, including any 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 3 of 18 observer authorized pursuant to the provisions of an 1 access agreement or a fisheries management agreement. 2 (8) ‘Authorized officers’ means any person or category 3 of persons designated pursuant to section 602 of chapter 6 4 of this subtitle as an authorized officer. 5 (9) ‘Automatic location communicator’ or ‘transponder’ 6 means a device placed on a fishing vessel that transmits, 7 either in conjunction with another device or devices or 8 independently, information concerning the position, 9 fishing and other activities of the vessel. 10 (10) ‘Based in the Federated States of Micronesia’ means 11 using land-based facilities in the Federated States of 12 Micronesia to support fishing, including location of the 13 home port of a vessel in the Federated States of 14 Micronesia, landing or transshipping all fish harvested 15 within the exclusive economic zone and/or operating under 16 a joint venture arrangement in the Federated States of 17 Micronesia, or under arrangements where the operator of a 18 vessel is participating in shore-based developments or is 19 otherwise making a substantial contribution to the 20 development of the domestic tuna industry. 21 (11) ‘Buy’ includes: 22 (a) barter or attempt to barter’ 23 (b) purchase or attempt to purchase; 24 (c) receive on account or consignment; 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 4 of 18 (d) purchase or barter for future goods or for 1 any consideration of value; and 2 (e) purchase or barter as an agent for another 3 person, and ‘buyer’ shall have a corresponding meaning. 4 (12) ‘Citizen’ means a person who is a citizen of the 5 Federated States of Micronesia. 6 (13) ‘Closed area’ means an area in which fishing is 7 prohibited. 8 (14) ‘Closed season’ means a period of time during 9 which fishing is prohibited. 10 (15) ‘Commercial fishing’ means any fishing resulting 11 or intending or appearing to result in the sale or trade 12 of any fish, which may be taken during the fishing 13 operation, and does not include subsistence fishing. 14 For the purposes of this act, the following shall be 15 presumed to be commercial fishing: 16 (a) use of a vessel for fishing, which measures 17 twenty seven (27) feet or more in overall length; 18 (b) use of more than one vessel for fishing which 19 is owned by a single person for the primary purpose of 20 selling or trading any fish. 21 (16) ‘Commercial pilot fishing’ means any fishing for 22 the purpose of testing the commercial viability of (a) 23 new fishing methods; 24 (b) developing new stocks of fish; or 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 5 of 18 (c) fishing in previously unexploited areas. 1 (17) ‘Court’ means the Supreme Court of the Federated 2 States of Micronesia. 3 (18) ‘Domestic fishing’ means any fishing by a local 4 fishing vessel longer than twenty-seven (27) feet in 5 overall length, but not including commercial pilot 6 fishing. 7 (19) (Reserved) 8 (20) (Reserved) 9 (21) ‘Drift net’ means a gillnet or other net or 10 arrangement of nets which is more than 2.5 kilometers 11 (1.56 miles) in length, the purpose of which is to 12 enmesh, entrap or entangle fish. 13 (22) ‘Drift net fishing activities’ includes fishing 14 with the use of a drift net and any related activities 15 including transporting, transshipping and processing any 16 drift net catch, and provisioning of food, fuel and 17 other supplies for vessels used or outfitted for drift 18 net fishing. 19 (23) ‘Exclusive economic zone’ means the exclusive 20 economic zone as defined in title 18 of the Code of the 21 Federated States of Micronesia. 22 (24) ‘Executive Director’ means the individual 23 appointed by the Authority to be in charge of the daily 24 activities and operation of the authority and to perform 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 6 of 18 such other functions as required by this subtitle. 1 (25) “Export’ means to: 2 (a) send or take out of the country; 3 (b) attempt to send or take out of the country; 4 (c) receive on account or consignment for 5 purposes of paragraph (a) or (b) above; 6 (d) act as an agent for another person for 7 purposes of (a) through (c) above; and 8 (e) carry or transport anything for purposes of 9 paragraphs (a) through (d) of this subsection, and 10 ‘exporter’ shall have a corresponding meaning. 11 (26) ‘Fish’ means any living marine resources. 12 (27) ‘Fish’ aggregating device’ means any man-made or 13 partly man-made floating or semi-submerged device, 14 whether anchored or not, intended for the purpose of 15 aggregating fish, and includes any natural floating 16 object on which a device has been placed to facilitate 17 its location. 18 (28) ‘Fish processing’ means the producing of any 19 substance or article from fish by any method and 20 includes the cutting up, dismembering, cleaning, 21 sorting, lining, freezing, canning, salting, preserving 22 and reduction of fish. 23 (29) ‘Fisheries management agreement’ means any 24 agreement, arrangement or treaty in force to which the 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 7 of 18 Federated States of Micronesia is a party, not including 1 any access agreement, which has as its primary purpose 2 cooperation in or coordination of fisheries management 3 measures in all or part of the region, or implementation 4 of a multilateral access agreement, including, but not 5 limited to, fisheries monitoring, control and 6 surveillance and establishing criteria or requirements 7 for fishing and fisheries access. 8 (30) ‘Fishery’ or ‘Fisheries’ means one or more stock 9 of fish or any fishing operation based on such stocks, 10 which can be treated as a unit for purposes of 11 conservation and management, taking into account 12 geographical, scientific, technical, recreational, 13 economic and other relevant characteristics. 14 (31) ‘Fishery waters’ means the exclusive economic 15 zone, the territorial sea and internal waters as 16 described in title 18 of the Code of the Federated 17 States of Micronesia, and any other waters over which 18 the Federated States of Micronesia claims sovereignty or 19 sovereign Rights. 20 (32) ‘Fishing’ means: 21 (a) the actual or attempted searching for, 22 catching, taking or harvesting of fish; 23 (b) any activity, which can reasonably be 24 expected to result in the locating, catching, taking or 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 8 of 18 harvesting of fish, 1 (c) the placing, searching for or recovering of 2 any fish aggregating device or associated electronic 3 equipment such as radio beacons; 4 (d) any operation at sea directly in support of 5 or in preparation for any activity described in this 6 subsection except for operations defined as related 7 activities in subsection (51) of this section; and 8 (e) the use of an aircraft in relation to any 9 activity described in this subsection except for flights 10 in emergencies involving the health or safety of crew 11 members or the safety of a vessel. 12 (33) ‘Fishing gear’ means any equipment, implement, or 13 other thing that can be used in the act of fishing, 14 including any fishing net, rope, line, float, trap, 15 hook, winch, boat, beacon or locating device, aircraft 16 or helicopter. 17 (34) ‘Fishing vessel’ means any vessel, boat, ship or 18 other craft, which is used for, equipped to be used for 19 or of a type that is normally used for fishing as the 20 terms fishing is defined in subsection (32) of this 21 section. 22 (35) ‘Flag fishing vessel’ means any foreign fishing 23 vessel that is registered in the Federated States of 24 Micronesia pursuant to title 18 of the Code of the FSM 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 9 of 18 and any domestic fishing vessel. 1 (36) ‘Foreign fishing’ means any fishing not defined as 2 domestic fishing, and not including commercial pilot 3 fishing or fishing from a local fishing vessel less than 4 or equal to twenty-seven (27) feet in overall length. 5 (37) ‘Foreign fishing vessel’ means any fishing vessel 6 other than a local fishing vessel. 7 (38) ‘Foreign party’ means a noncitizen party to an 8 access agreement or a party to an access agreement that 9 is at least twenty percent foreign-owned. 10 (39) ‘Foreign recreational fishing’ means fishing using 11 a foreign fishing vessel for recreational or sport 12 purposes. 13 (40) ‘High seas’ means all parts of the sea that are 14 not included in the exclusive economic zone, in the 15 territorial sea, or in the internal water of any nation, 16 or in the archipelagic waters of an archipelagic nation. 17 (41) ‘Internal waters’ means waters on the landward 18 side of the baseline of the territorial sea of any 19 island within the Federated States of Micronesia. 20 (42) ‘Island’ means a naturally formed area of land 21 surrounded by water, which is above water at high tide. 22 (43) ‘Local fishing vessel’ means any fishing vessel 23 wholly owned and controlled by: 24 (a) the Government of the Federated States of 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 10 of 18 Micronesia, any State government or any subdivision 1 thereof; 2 (b) one or more natural persons who are citizens 3 of the Federated States of Micronesia; 4 (c) any corporation, company, society, or other 5 association of persons incorporated or established under 6 the laws of the Federated States of Micronesia or of any 7 State and which is wholly owned and controlled by one or 8 more of the entities or persons described in paragraphs 9 (a) through (c) of this subsection. 10 (44) ‘Master’ in relation to any fishing vessel means 11 the person in charge or apparently in charge of that 12 vessel. 13 (45) ‘Multilateral access agreement’ means an access 14 agreement between a foreign party and one or more 15 regional parties, to which the Federated States of 16 Micronesia is a party. 17 (46) ‘Officer’ means any authorized officer or national 18 police officer, and includes any officer of a vessel or 19 aircraft used for the enforcement of this act, whether 20 or not such officers are official of the Government of 21 the Federated States of Micronesia or of one of the four 22 State governments. 23 (47) ‘Operator’ means any person who is in charge of or 24 directors or controls a fishing vessel, or for whose 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 11 of 18 direct economic or financial benefit a vessel is being 1 used, including the master, owner, and charterer. 2 (48) ‘Owner’ in relation to a fishing vessel means any 3 person exercising or discharging or claiming the right 4 or accepting the obligation to exercise or discharge any 5 of the powers or duties of an owner, whether on his own 6 behalf or on behalf of another, and includes a person 7 who owns the vessel jointly with any other person or 8 persons and any manager, director or secretary of any 9 corporate body or company that holds an ownership 10 interest in the vessel. 11 (49) ‘Permit’ means any permit issued under this 12 subtitle or under an access agreement entered into 13 pursuant to this subtitle. 14 (50) ‘Person’ means any natural person or business 15 enterprise and includes, but is not limited to, a 16 corporation, partnership, cooperative, association, the 17 government of any of the four States, or any political 18 subdivision thereof, and any foreign government, 19 subdivision of such government or other entity. 20 (51) ‘Port sampler’ means a category of authorized 21 observer who performs duties at a point of transshipment 22 or port Micronesia. 23 (52) ‘Recreational fishing’ means fishing for sport or 24 leisure. 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 12 of 18 (53) ‘Region’ means that area of land and ocean which 1 falls within the sovereignty and sovereign rights of the 2 member countries of the South Pacific Forum Fisheries 3 Agency, whose headquarters are located in Honiara, 4 Solomon Islands, and includes high seas within such 5 area, and for the purposes of data collection, includes 6 that area of the Western and Central Pacific Ocean which 7 falls within the jurisdiction and sovereign rights of 8 the member countries of the Secretariat of the Pacific 9 Community located in Noumea, New Caledonia, and 10 ‘regional’ shall have a corresponding meaning. 11 (54) ‘Regional access license’ means a regional access 12 license issued to any fishing vessel of a party to a 13 multilateral access agreement or fisheries management 14 agreement, in accordance with such agreement. 15 (55) ‘Related activities’ in relation to fishing means: 16 (a) transshipment; 17 (b) refueling or supplying fishing vessels, 18 selling or supplying fishing equipment, or performing 19 either activity in support of fishing; and 20 (c) on-shore storing, buying or processing fish 21 or fish products from the time they are first landed. 22 (57) ‘Secretary’ means the Secretary of the Department 23 of Justice. 24 (58) ‘Sell’ includes the exchange of any fish or fish 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 13 of 18 product or other thing for cash or for anything, which 1 has value or which can be exchanged for cash, and 2 includes any exchange by barter. 3 (59) ‘Shark’ means any fish of the taxon Elasmobranchii 4 (60) ‘Shark Fin’ means any fin of a shark including 5 caudal fins 6 (61) ‘Stock of fish’ means a species, subspecies or 7 other category of fish identified on the basis of 8 geographical, scientific, technical, recreational and 9 economic characteristics which can be treated as a unit 10 for purposes of conservation and management. 11 (62) ‘Subsistence fishing’ means fishing by a citizen 12 or a resident substantially for personal consumption, 13 and does not include any fishing resulting or intending 14 or appearing to result, directly or indirectly, in the 15 sale or trading of any fish which may be taken during 16 the fishing operations. 17 (63) ‘Transponder’ or ‘automatic location communicator’ 18 means a device placed on a fishing vessel that 19 transmits, either in conjunction with another device or 20 devices or independently, information concerning the 21 position, fishing and other activities of the vessel. 22 (64) ‘Transshipment’ means the transfer of any or all 23 fish or fish products to or from any vessel or aircraft 24 for the purposes of transporting such fish or fish 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 14 of 18 products elsewhere. 1 (65) ‘United Nations Agreement’ means the agreement for 2 the implementation of the provisions of the United 3 Nations Convention on the Law of the Sea of 10 December 4 1992 relating to the conservation and management of 5 straddling fish stocks and highly migratory fish stocks. 6 (67) ‘Vehicle’ means any car, truck, van, bus, trailer 7 or other powered land conveyance. 8 (68) ‘Vessel’ means any boat, ship, canoe or other 9 water-going craft.” 10 Section 2. Chapter 5 of title 24 of the Code of the 11 Federated States of Micronesia, as enacted by Public Law No. 12 12-34, is hereby amended by adding a new section 503 to read as 13 follows: 14 “Section 503. Compulsory landing of by-catch by fishing 15 vessels. 16 (1) By-catch caught by a fishing vessel may be landed 17 at a transshipment port in the Federated States of 18 Micronesia in accordance with any regulation promulgated 19 pursuant to this act. 20 (2) It shall be unlawful for fishing vessels to 21 retain, discard or otherwise dispose of by-catch in 22 contravention of this section. 23 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 15 of 18 (3) Any person who commits an act in violation of this 1 section shall be subject to a civil penalty of not less 2 than $100,000 and not more than $500,000. 3 (4) Any by-catch pursuant to this title may be 4 disposed of in such manner as prescribed by regulation.” 5 Section 3. Chapter 5 of title 24 of the Code of the 6 Federated States of Micronesia, as enacted by Public Law No. 12-7 34, is hereby amended by renumbering section 503 as section 504. 8 Section 4. Chapter 5 of title 24 of the Code of the Federated 9 States of Micronesia, as enacted by Public Law No. 12-34, is hereby 10 amended by renumbering section 504 as section 505. 11 Section 5. Section 913 of Chapter 9 of title 24 of the Code 12 of the Federated States of Micronesia, as enacted by Public Law 13 No. 12-34, is hereby amended to read as follows: 14 “Section 913. Possession, handling and sale of fish, 15 shark, or shark fin, unlawfully taken. 16 (1) No person shall knowingly capture ship, transport, 17 offer for sale sell, purchase, import, export or have 18 custody, control or possession of any fish taken or 19 retained in contravention of this subtitle or any access 20 agreement, permit or applicable law. 21 (2) It shall be unlawful to remove shark fins from 22 sharks on board fishing vessels, and to retain on board, 23 transship or land sharks or shark fins, subject to 24 subsections (4) and (6). 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 16 of 18 (3) It shall be unlawful for fishing vessels to possess 1 wire leaders, steel trace, or wire trace.” 2 (4) All sharks caught by a fishing vessel shall be 3 either: (a) if still alive, immediately released back 4 into the ocean. Fishing vessels must ensure that sharks 5 are released whole, and that sharks are not 6 unnecessarily harmed during the release process; or (b) 7 if dead, landed at a transshipment port in the Federated 8 States of Micronesia. Fishing vessels must ensure that 9 sharks are landed whole with all shark fins attached to 10 the carcass PROVIDED THAT Purse Seine vessels shall be 11 exempted from the application of subsection 913(4)(b) 12 for six months from the effective date of this act. 13 (5) It shall be unlawful to purchase, offer for sale 14 or sell sharks or shark parts, including shark fins 15 which have been removed on board a vessel, transshipped 16 or landed in contravention of this section. 17 (6) Any person who holds a license or permit from the 18 Authority to conduct scientific research on sharks and 19 carries out activities in accordance with that license 20 or permit shall not be held in contravention of this 21 section.” 22 (7) Any person who commits an act in violation of this 23 section shall be subject to a civil penalty of not less 24 than $50,000 and not more than $250,000. 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 17 of 18 (8) It shall be a rebuttable presumption that any 1 sharks caught or shark fins possessed by a fishing 2 vessel originated from the EEZ of the Federated States 3 of Micronesia. 4 (9) All shark or shark fins seized and forfeited shall 5 be destroyed by incineration.” 6 Section 6. Section 914 of chapter 9 of title 24 of the Code 7 of the Federated States of Micronesia, as enacted by Public Law 8 No. 12-34, is hereby further amended to read as follows: 9 Section 914. Destruction of evidence 10 (1) No person shall destroy, dispose of, conceal, 11 tamper with or abandon any fish, shark, shark fin, fish 12 product, fishing gear, net or other fish appliance, 13 record, document, electric shock device, explosive, 14 poison or other noxious substance, or any other thing 15 with intent to avoid seizure or the detection of an 16 offense against this subtitle. 17 (2) Any person who commits an act in violation of this 18 section is subject to a civil penalty of not less than 19 $100,000 and not more than $500,000.” 20 21 22 Section 7. This act shall become law upon approval by the 23 President of the Federated States of Micronesia or upon its becoming 24 law without such approval. 25 CONGRESSIONAL BILL NO. 18-134, C.D.1, C.D.2 P.C. NO. 18-454 PUBLIC LAW NO. 18-108 18 of 18 1 2 3 February 25 , 2015 4 5 6 7 /s/ Manny Mori 8 Manny Mori President 9 Federated States of Micronesia 10 11 12 13 14 15 16 17 18 19 20 21 22