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Federated States of Micronesia Arrangement for Regional Fisheries Access [1994] PITSE 19 (30 November 1994)

FEDERATED STATES OF MICRONESIA ARRANGEMENT FOR REGIONAL FISHERIES ACCESS

(Honiara, Solomon Islands, 30 November 1994)

ENTRY INTO FORCE : 23 SEPTEMBER 1995

Summary :

To cooperate to secure, for the mutual benefit of the Parties, the maximum sustainable economic benefits from the exploitation of the tuna resources of the Central and Western Pacific; to promote greater participation by nationals of the Parties in fisheries and assist in the development of national fisheries industries of the Parties; to establish a licensing regime under which fishing vessels of the Parties may gain access to the waters within the Arrangement Area on terms and conditions no less favourable than those granted by the Parties to foreign fishing vessels under bilateral and multilateral access arrangements; to establish and enforce agreed criteria to ensure that only those fishing operations which are capable of providing genuine and quantifiable economic benefits to the Parties, are eligible for licences pursuant to this Arrangement; to allow access to the exclusive economic and fisheries zones of the Parties by purse seine fishing vessels on terms and conditions which are consistent with the provisions of the Palau Arrangement for the Management of the Western Purse Seine Fishery; and to further the objectives of the Nauru Agreement Concerning Cooperation in the Management of Fisheries Common Interest.

THE PARTIES TO THIS ARRANGEMENT,

RECALLING that, in accordance with international law, each of the Parties has established an exclusive economic or fisheries zone which extends up to two hundred nautical miles from the baseline from which their respective territorial seas are measured and within which they respectively and separately exercise sovereign rights for the purposes of exploring, exploiting, conserving and managing all living marine resources;

HAVING REGARD to the objectives of the South Pacific Forum Fisheries Convention 1979 and the Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest 1982 and in particular the promotion of regional cooperation and coordination of fisheries policies and the need for implementation of these objectives through regional and sub-regional arrangements;

NOTING the decision of the thirteenth annual meeting of the Parties to the Nauru Agreement held at Honiara on 29 April 1994 to effectively manage and control the purse seine fishery in the Central and Western Pacific region by a scheduled reduction in the number of foreign purse seine fishing vessels to be allowed access to fish;

CONSCIOUS of the need for greater participation by their nationals fisheries for highly migratory fish stocks in the Central and Western Pacific region and the need to develop and promote their own national fisheries industries;

COMMITTED to cooperating to secure for their nationals and for the region as a whole the maximum sustainable economic benefits from the tuna resources of the Central and Western Pacific;

DESIRING to establish terms and conditions under which fishing vessels which provide long-term sustainable and quantifiable economic benefits to the Parties may be granted preferential access to the exclusive economic and fisheries zones of the Parties;

HAVE AGREED AS FOLLOWS:

PART 1 - DEFINITIONS AND OBJECTIVES

Article 1

Definitions

In this Arrangement:

"Administrator" means the Administrator prescribed under Article 7;

"applicable national law" means any provision of a law, however described, of a Party which governs the fishing activities of fishing vessels, being a law identified in Schedule 1 of Annex V;

"Arrangement Area" means the exclusive economic or fisheries zones of the Parties to this Arrangement except for waters closed to fishing in accordance with Schedule 2 of Annex V;

"eligibility criteria" means the criteria set out in Annex III;

"eligible fishing vessel" means a fishing vessel of the Parties which has been duly entered on the Register of Eligible Fishing Vessels maintained by the Administrator pursuant to Article 3 of this Arrangement;

"fishing" means:

searching for, catching, taking or harvesting fish;

attempting to search for, catch, take or harvest fish;

engaging in any other activity which can reasonably be expected to result in the locating, catching, taking or harvesting of fish;

placing, searching for or recovering fish devices or associated electronic equipment such as radio beacons;

any operations at sea directly in support of, or in preparation for, any activity described in this paragraph;

use of any other vehicle, air or sea-borne, for any of the activities described in this paragraph except for emergencies involving the health and safety of any person or, board a vessel or the safety of a vessel; or

any related activity;

"fishing vessel of the Parties" means any purse seine fishing vessel flying the flag of or based in a Party to this Arrangement;

"home Party" in respect of a fishing vessel means the Party which has issued a licence, permit or authorization to the vessel authorizing the vessel to fish in the exclusive economic or fisheries zone of that Party and through which the application for entry on the Register of Eligible Fishing Vessels pursuant to Article 3 is made, and the phrase "home Party of a vessel" shall be construed accordingly;

"operator" means any person who is in charge of, directs or controls a vessel, including the owner, charterer or master: means a State Party to this Arrangement and Parties means all such States from time to time;

"regional access licence" means a regional access licence issued to fishing vessels of the Parties pursuant to this Arrangement;

"related activities" in relation to fishing, means:

refuelling or supplying fishing boats, selling or supplying fishing equipment or other activities in support of fishing;

on-shore storing buying or processing of fish or fish products from the time they are first landed; or storing, buying, transhipping, processing or transporting fish or fish products taken from the Arrangement Area up to the time such fish or fish products are first landed;

"transhipment" means the transfer of any or all of the fish on board a vessel onto another vessel, either directly or by off-loading the fish from the vessel onto the shore and thence immediately onto another vessel for the purposes of transportating that fish elsewhere.

Article 2

Objectives of this Arrangement

The objectives of this Arrangement shall be:

to cooperate to secure, for the mutual benefit of the Parties, the maximum sustainable economic benefits from the exploitation of the tuna resources of the Central and Western Pacific;

to promote greater participation by nationals of the Parties in fisheries and assist in the development of national fisheries industries of the Parties;

to establish a licensing regime under which fishing vessels of the Parties may gain access to the waters within the Arrangement Area on terms and conditions no less favourable than those granted by the Parties to foreign fishing vessels under bilateral and multilateral access arrangements;

to establish and enforce agreed criteria to ensure that only those fishing operations which are capable of providing genuine and quantifiable economic benefits to the Parties, are eligible for licences pursuant to this Arrangement;

to allow access to the exclusive economic and fisheries zones of the Parties by purse seine fishing vessels on terms and conditions which are consistent with the provisions of the Palau Arrangement for the Management of the Western Pacific Purse Seine Fishery; and

to further the objectives of the Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest, 1982.

PART II - REGISTRATION AND LICENSING

Article 3

Register of Eligible Fishing Vessels

1. The Administrator shall, for the purposes of this Arrangement, maintain a Register of Eligible Fishing Vessels which shall contain the following information in respect of each vessel entered on the Register:

the name of the vessel;

international radio call sign;

country of registration;

regional registration number;

name and address of owner or owners;

name and address of operator (where different from the owner); and

the name of the home Party of the vessel.

2. Where a Party to this Arrangement is satisfied that a fishing vessel of that Party satisfies the eligibility criteria, that Party may apply to enter such fishing vessel on the Register of Eligible Fishing Vessels. Applications for registration shall be made in the form set out in Annex 1.

3. Upon receipt of a duly completed application the Administrator shall forthwith enter the vessel concerned on the Register of Eligible Fishing Vessels. The Administrator shall immediately notify the Parties, and the operator of the vessel, of the entry of a vessel onto the Register of Eligible Fishing Vessels and shall circulate the details of the vessel to all Parties.

4. It shall be a condition of entry onto the Register of Eligible Fishing Vessels that for each day that an eligible fishing vessel is:

in the Arrangement Area; or

on the high seas, during the course of a fishing trip involving fishing in the Arrangement Area; and

immediately following the off-loading of any fish from an eligible fishing vessel,

an entry or entries shall be completed in ink in the English language on the catch report form as set out in Annex 11. Such forms shall be posted by registered airmail to the Administrator within fourteen days following the date of completion of the off-loading operation.

5. The Administrator shall notify the Parties at three-monthly intervals of the name, call sign, registration number, home Party and Regional Register number of all fishing vessels of the Parties entered on the Register of Eligible Fishing Vessels.

Article 4

Voluntary Deletion

Where for any reason the licence issued by the home Party in respect of a vessel is cancelled, withdrawn, voluntarily relinquished or not renewed, or where the home Party is satisfied that the vessel concerned has not satisfied or no longer satisfies the eligibility criteria, that Party, shall forthwith request the Administrator to delete the vessel from the Register of Eligible Fishing Vessels. The Administrator shall comply with any such request by the home Party and shall immediately notify the Parties of the deletion of the vessel from the Register of Eligible Fishing Vessels and the reason for the deletion.

Article 5

Review and Evaluation

1. At least two months prior to the Annual Meeting of the Parties under Article 6, the Administrator shall, in respect of each registered vessel, or, as appropriate, the fishing enterprise under which such registered vessel operates, request, through the home Party of the vessel concerned, the information specified in paragraph 2 of this Article and shall compile a report on the operations of each vessel with respect to the eligibility criteria for consideration at the Annual Meeting of the Parties. The home Party of the vessel shall take such measures as may be necessary to ensure that the information specified in paragraph 2 of this Article is provided to the Administrator in a timely manner.

2. In compiling a report to the Parties pursuant to paragraph 1 of this Article the Administrator shall request the following information:

details of equity holdings;

number of nationals trained;

number and proportion of nationals employed and the total payroll to national employees;

details of onshore investments; details of local purchases made; and

any further information as may be necessary.

3. The Annual Meeting of the Parties shall consider the report of the Administrator in respect of each vessel, including any information supplied through the home Party by the operator of the vessel or the fishing enterprise pursuant to paragraphs 1 and 2 of this Article and shall review the operations of all vessels entered on the Register of Eligible Fishing Vessels and assess the extent to which the vessel, or the fishing enterprise, as has satisfied the eligibility criteria and fulfilled the objectives of this Arrangement.

4. The Annual Meeting of the parties may request the Administrator, the home Party of the vessel, or the operator, to provide such further information as may be necessary and may request an independent evaluation of the operations of the vessel or the fishing enterprise under which that vessel operates against the eligibility criteria. In such a case, the Administrator shall consult with the home Party of the vessel as to the appropriate method for conducting the independent evaluation and the home Party shall take all necessary steps to facilitate the evaluation, including by providing all relevant information to the Administrator.

5. Where, following the review and evaluation under paragraph 3 of this Article, and taking into account the findings of any independent review under paragraph 4 of this Article, the Parties determine, at the Annual Meeting or at a Special Meeting of the Parties, that the vessel, or the fishing enterprise under which that vessel operates, has not met the eligibility criteria and has not fulfilled the objectives of this Arrangement, or where insufficient information has been made available to enable any evaluation to take place, the Parties shall direct the Administrator to delete the vessel from the Register of Eligible Fishing Vessels.

Article 6

Access to the Arrangement Area

1. Before a fishing vessel of the Parties may be issued with a regional access licence pursuant to this Arrangement, the vessel must first be duly registered on the Register of Eligible Fishing Vessels.

2. Where a fishing vessel of the Parties is duly registered in accordance with the provisions of Article 3, the operator may apply, through the home Party of the vessel, to the Administrator, in accordance with the procedures set out in Annex IV, for a regional access licence authorizing the vessel to fish in the Arrangement Area.

3. It shall be a condition of any regional access licence issued pursuant to this Arrangement that the vessel in respect of which the regional access licence is issued is operated in accordance with the requirements of Annex V.

4. A regional access licence may be denied by the Administrator on the grounds set out in Annex IV.

5. Where a fishing vessel of the Parties is deleted from the Register of Eligible Fishing Vessels in accordance with the provisions of this Arrangement, any regional access licence issued in respect of that vessel shall, in the case of voluntary deletion from the register or non-renewal of registration, be cancelled thirty days following the deletion of the vessel from the Register of Eligible Fishing Vessels or upon the date of expiry of the licence, whichever is the sooner. In the case of deletion from the Register of Eligible Fishing Vessels for any other reason the regional access licence shall be cancelled immediately upon the deletion from the register.

6. If full payment of any amount due as a result of a final judgment or other final determination deriving from an occurrence relating to this Arrangement in waters within the jurisdiction of a Party, is not made to that Party within sixty days, the regional recess licence for the vessel involved shall be suspended at the request of that Party and that vessel shall not be authorized to fish in the Arrangement Area until that amount is paid to that Party. For the purposes of this Article "final judgment" means a judgment to a court of a Party from which no appeal proceedings have been initiated within sixty days.

7. The Administrator shall maintain a record of all regional access licences issued pursuant to this Arrangement, including the date of issue and expiry of such licences.

8. The Administrator shall notify the Parties each month of the name, call sign, registration number, regional access licence number and expiry date of such licence of all purse seine vessels licensed to fish in the Arrangement Area under this Arrangement.

PART III - ADMINISTRATION

Article 7

Administrator

1. The Administrator of this Arrangement shall be the Director of the South Pacific Forum Fisheries Agency.

2. The Administrator shall be responsible to the Parties for:

performing the functions required of the Administrator by this Arrangement;

receiving information, documents and payments in accordance with the terms of this Arrangement; convening meetings of the Parties;

coordinating the observer programme under this Arrangement; and

performing any other function in order to satisfy any requirement of this Arrangement.

3. The Administrator's functions prescribed in this Arrangement shall be performed consistently with any direction given by the Parties at the Annual Meeting or at a Special Meeting of the Parties.

4. In performing the Administrator's functions prescribed under this Arrangement, the Administrator shall consult with the Parties and shall take all necessary steps to ensure that all reports and other information required by the Parties are provided in a timely manner.

Article 8

Meetings of the Parties

1. The Parties agree to convene an Annual Meeting of the Parties. The Annual Meeting shall be convened immediately preceding or following the annual meeting of the Parties to the Nauru Agreement. The purposes of the Annual Meeting shall be:

to review the operations of all vessels entered on the Register of Eligible Fishing Vessels and assess the extent to which each vessel, or fishing enterprise, as appropriate, has satisfied the eligibility criteria and fulfilled the objectives of this Arrangement;

to review the eligibility criteria;

to adopt amendments to this Arrangement;

to review the level of fees for regional access licences to discuss cooperative enforcement measures;

to consider the effectiveness of the observer programme established pursuant to Article 17 and to adopt procedures for the implementation of the programme;

to consider and approve an administrative costs budget, which shall consist only of the direct costs of performing functions and providing services in accordance with this Arrangement;

to consider requests to accede to this Arrangement by member States of the Forum Fisheries Agency pursuant to Article 22(2); and

to perform any other functions to satisfy any requirement of this Arrangement or as are necessary to attain the objectives of this Arrangement.

2. The Administrator shall, upon request by any Party, and with the approval of at least two other Parties, convene a Special Meeting of the Parties at the date and place determined by the Administrator in consultation with the Parties.

3. Member countries of the South Pacific Forum Fisheries Agency, not Party to this Arrangement may attend, as observers, meetings of the Parties held pursuant to this Arrangement.

4. The Parties shall adopt and amend, as necessary, rules of procedure for the Annual Meeting and Special Meetings of the Parties. Pending agreement on such rules of procedure, the rules of procedure applicable to meetings of the Forum Fisheries Committee shall apply.

Article 9

Provision of Information

1. The Administrator shall provide all data received pursuant to this Arrangement to the Parties in a timely manner in accordance with this Arrangement, and in particular shall:

provide all data relating to fishing activities in waters under the jurisdiction of any Party to that Party;

provide all data relating to the fishing activities of an eligible fishing vessel to the home Party of that vessel; and

distribute such data, including high seas data, as may be agreed by the Parties.

2. The Administrator shall maintain the confidentiality of all data which is received pursuant to this Arrangement, unless:

this Arrangement provides otherwise.

the Parties agree otherwise;

the Administrator is authorized by a Party to release data relating to fishing activities in waters under that Party's jurisdiction; or

the Administrator is authorized by the home Party of a vessel to release data relating to the fishing operations of that vessel.

3. Each Party shall ensure that the confidentiality is maintained of any data received pursuant to this Arrangement concerning fishing activity in the exclusive economic or fisheries zone of any other Party.

4. For the purposes of this Arrangement, each Party shall provide to the Administrator, as early as practicable, a description of any area considered by its Government to be subject to its fisheries jurisdiction.

Article 10

Distribution of Payments

1. Any payment received by the Administrator pursuant to this Arrangement shall be deposited within one week of receipt in United States dollars in an insured or Government guaranteed bank account or accounts so that the deposits will earn the highest amount of interest reasonably available.

2. The Administrator shall distribute any amount received pursuant to this Arrangement in the manner described in Annex VI.

Article 11

Auditing of Accounts

1. The Administrator shall arrange for the auditor of the South Pacific Forum Fisheries Agency to audit any account in which amounts deposited in accordance with Article 10 are held, prior to the distribution of any amount in accordance with this Arrangement.

2. The Administrator shall permit each Party to inspect any raw data, books and accounts which relate to the Administrator's functions pursuant to this Arrangement.

PART IV - COMPLIANCE AND ENFORCEMENT

Article 12

Compliance Powers

1. Each Party shall ensure, to the fullest extent possible in accordance with its laws and regulations, that its fishing vessels shall not engage in fishing within the exclusive economic or fisheries zone of any other Party unless duly licensed under this Arrangement or under other licensing arrangements.

2. Nationals and fishing vessels of one Party which fail to comply with the provisions of this Arrangement or with the laws and regulations of any other Party relating to fisheries shall be dealt with in accordance with the relevant laws and regulations of that Party.

Article 13

Cooperation in Enforcement

1. Each Party shall, at the request of any other Party, take all reasonable measures to assist in the investigation of an alleged violation of this Arrangement.

2. Where a Party has probable cause to believe that a fishing vessel of the Parties, while within the waters under the jurisdiction of that Party:

did not have a licence to fish;

was involved in an infringement of an applicable national law;

was involved in any incident in which an authorized officer or observer was allegedly assaulted with resultant bodily harm, physically threatened, force-fully resisted, refused boarding or

subjected to physical intimidation or physical interference in the performance of his or her duties as authorized pursuant to this Arrangement;

transhipped or off-loaded catch otherwise than in accordance with Annex V;

was used for fishing, in waters closed to fishing pursuant to Annex V;

was used for fishing in any Limited Area as described in Annex V, except as authorized in accordance with that Annex;

was used for fishing for any kinds of fish other than tunas, except that other kinds of fish may be caught as an incidental by-catch;

was involved in an incident in which evidence which otherwise could have been used in proceedings concerning the vessel has been intentionally destroyed; or

was involved in a serious violation of any other provision of this Arrangement or of a law or regulation, other than a violation described in sub-paragraphs (a) to (h) of this paragraph, and such vessel has not submitted to the jurisdiction of the Party concerned, that Party may request the home Party of the vessel to fully investigate the alleged violation. whereupon the home Party shall investigate and report as soon as practicable and in any case within two months to the requesting Party and the Administrator on that investigation and on any action taken or proposed to be taken by the home Party in accordance with this Article in relation to the alleged violation.

3. In the event that a report provided pursuant to paragraph 2 of this Article establishes to the satisfaction of the Parties concerned that there are reasonable grounds to believe that the vessel concerned has been involved in a violation of this Arrangement as set out in paragraph 2, the home Party of the vessel shall, at the request of the Party, in whose waters the violation took place, in the case of a fishing vessel flying the flag of the home Party:

take all necessary measures to ensure that the vessel concerned submits to the jurisdiction of the requesting Party; or

take appropriate action against the vessel to the extent permitted by its national laws and regulations or otherwise to the mutual satisfaction of the Parties concerned,

in the case of any other fishing vessel:

use its best efforts to ensure that the operator of the vessel submits to the jurisdiction of the requesting Party; or

to the extent possible under its national laws and regulations, or under any agreement in force between the investigating Party and the flag State of the vessel concerned, take appropriate action against the vessel or the operator of the vessel.

Article 14

Arrest and Seizure

1. Where the authorities of one Party arrest or seize nationals or fishing vessels of another Party, the arresting Party shall promptly notify the other Party of the action taken. The arresting Party shall also notify the flag State of the vessel where the home Party of the vessel concerned is not also the flag State.

2. Nationals and fishing vessels, including members of the crew of such fishing vessels (whether or not such crew are nationals of a Party), of any Party arrested or seized pursuant to this Arrangement shall be promptly released upon the posting of reasonable bond or security as determined by the courts of the arresting Party. Penalties applied in accordance with this Arrangement for fishing violations may not include imprisonment or corporal punishment.

Article 15

Joint Surveillance

The Parties shall cooperate in the enforcement of the provisions of this Arrangement and their fisheries laws and regulations in accordance with the provisions of the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region and to this end shall cooperate to develop regionally agreed procedures for the conduct of fisheries surveillance and law enforcement in the Arrangement.

Article 16

Port State Enforcement

Whenever a fishing vessel of the Parties enters a port or offshore terminal of one of the Parties, the port State may inspect documents and catch on board such and, when such inspection discloses reasonable grounds for believing that the vessel has contravened the provisions of this Arrangement, may detain the vessel for such reasonable period as is necessary for the home Party, or, if the home Party is not the flag State of the vessel, the flag State, to take control of the vessel or otherwise lake responsibility for enforcement purposes.

Article 17

Observer Programme

1. The Parties shall establish an observer programme for the purposes of implementing and achieving the objectives of this Arrangement and shall establish appropriate administrative measures for the effective implementation of such a programme in accordance with the following principles:

Each fishing, vessel of the Parties licensed under this Arrangement shall, upon request by the Administrator, accept one observer of a Party other than the home Party of the vessel, under the conditions set out in Part 7 of Annex V. If such an observer is not available, the fishing vessel shall have on board one observer from the home Party.

Observers shall he trained and certified in accordance with the procedures to be agreed under the programme. Each of the Parties shall be entitled to have its nationals included in the programme.

The programme shall have as its objective a significant level of coverage by observers of the total number of trips by fishing vessels of the Parties licensed pursuant to this Arrangement and, unless otherwise agreed at the outset of the trip, observer operations will be based in the placement of observers at ports of trip origin for complete trips.

The activities of observers shall include monitoring the level of compliance with the provisions of this Arrangement and reporting of their findings to the Administrator and the home Party of the vessel.

The Parties shall facilitate the placing of observers, including the provision of visas, if required.

The Administrator shall ensure that a reasonable period of notice of the placement of an observer is given, which should, wherever practicable, be at least fourteen days.

The Administrator shall ensure that all reports received from observers placed under the provisions of this Arrangement are circulated widely, in a timely manner, to all Parties which may he affected by or have an interest in the reports.

2. The Administrator shall coordinate the observer programme.

PART V - SETTLEMENT OF DISPUTES

Article 18

Consultations

At the request of any Party, consultations on the interpretation or implementation of this Arrangement will be held with any other Party within sixty days of the date of receipt of the request. All other Parties will be notified by the requesting Party of such requests for consultations and, subject to the agreement of the Parties concerned. Any Party may be permitted to participate, as an observer, in such consultations.

Article 19

Dispute Settlement

1. The Parties shall settle any dispute between them concerning or arising out of the interpretation or implementation of this Arrangement by peaceful means of their own choice, including arbitration.

2. Where a dispute arises between Parties concerning or arising out of the interpretation or implementation of this Arrangement, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.

PART VI - FINAL PROVISIONS

Article 20

Signature

This Arrangement shall remain open for signature at the South Pacific Forum Fisheries Agency Headquarters by the Parties to the Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest 1982 for twelve months from the date of its adoption.

Article 21

Entry into Force

1. This Arrangement is not subject to ratification and will enter into force thirty days after signature by whichever is the last to sign of the Federated States of Micronesia, the Republic of Kiribati and the Independent State of Papua New Guinea. For each State acceding to this Arrangement after its entry into force, this Arrangement shall enter into force on the thirtieth day following the date that an instrument signifying accession by that State is received by the depositary.

Article 22

Accession

1. This Arrangement shall remain open for accession by Parties to the Nauru Agreement Concerning Cooperation in the Fisheries of Common Interest 1982.

Annexes omitted