COUNCIL DECISION

of 13 December 2010

on the signing, on behalf of the European Union, and the provisional application of the Protocol to the Partnership Agreement between the European Community and the Federated States of Micronesia on fishing in the Federated States of Micronesia

(2011/116/EU)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43 in conjunction with Article 218(5) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1) On 25 April 2006 the Council adopted Regulation (EC) No 805/2006 concerning the conclusion of the Partnership Agreement between the European Community and the Federated States of Micronesia on fishing in the Federates States of Micronesia(1) (hereinafter ‘the Partnership Agreement’).

(2) A Protocol setting out the fishing opportunities and financial contribution provided for in the Partnership Agreement (hereinafter ‘the previous Protocol’) was attached to the Partnership Agreement. The previous Protocol expired on 25 February 2010.

(3) The Union subsequently negotiated with the Federated States of Micronesia (hereinafter ‘Micronesia’) a new Protocol (hereinafter ‘the Protocol’) to the Partnership Agreement, providing EU vessels with fishing opportunities in the waters over which Micronesia has sovereignty or jurisdiction in respect of fisheries.

(4) On conclusion of those negotiations, the Protocol was initialled on 7 May 2010.

(5) According to Article 15 of the Protocol, it is to be applied provisionally from the date of its signing.

(6) In order to guarantee a rapid resumption of fishing activities by EU vessels, it is essential that the Protocol be applied as quickly as possible taking into account that the previous Protocol has already expired.

(7) The Protocol should be signed and should be applied on a provisional basis, pending the completion of the procedures for its conclusion,

HAS ADOPTED THIS DECISION:

Article 1

The signing of the Protocol setting out the fishing opportunities and financial contribution provided for in the Partnership Agreement between the European Community and Federated States of Micronesia on fishing in the Federated States of Micronesia (hereinafter ‘the Protocol’) is hereby approved on behalf of the Union, subject to the conclusion of said Protocol.

The text of the Protocol is attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the person(s) empowered to sign the Protocol on behalf of the Union, subject to its conclusion.

Article 3

The Protocol shall be applied on a provisional basis as from the date of its signature(2), in accordance with Article 15 thereof, pending the completion of the procedures for its conclusion.

Article 4

This Decision shall enter into force on the day of its adoption.

Done at Brussels, 13 December 2010.

For the Council

The President

K. PEETERS

(1)

OJ L 151, 6.6.2006, p. 1

(2) The date of the signature of the Protocol will be published in the

Official Journal of the European Union

by the General Secretariat of the Council.

25.2.2011

Official Journal of the European Union

L 52/3

PROTOCOL

setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community and the Federated States of Micronesia on fishing in the Federated States of Micronesia

Article 1

Period of application and fishing opportunities

1. FSM shall grant annual fishing opportunities to the European Union tuna fishing vessels pursuant to Article 6 of the Fisheries Partnership Agreement, in conformity with Title 24 of the Code of the FSM and within the limits established by the Western and Central Pacific Fisheries Commission (WCPFC) conservation and management measures (CMM) and in particular CMM 2008-01.

2. For a period of 5 years from the date of entry into force of this Protocol the fishing opportunities foreseen under Article 5 of the Fisheries Partnership Agreement shall provide annual fishing authorisations to fish within FSM EEZ for six purse seine vessels and 12 long-liners.

3. Paragraphs 1 and 2 shall apply subject to Articles 5, 6, 8 and 10 of this Protocol.

Article 2

Financial contribution — methods of payment

1. The financial contribution referred to in Article 7 of the Fisheries Partnership Agreement shall be EUR 559 000 per year for the period referred to in Article 1, paragraph 2:

2. This financial contribution shall comprise:

(a) an annual amount for the access to FSM EEZ of EUR 520 000 equivalent to a reference tonnage of 8 000 tonnes per year less EUR 111 800; and

(b) a specific amount of EUR 150 800 per year for the support and implementation of FSM sectoral fisheries policy.

3. Paragraph 1 of this Article shall apply subject to Articles 4, 5 and 6 of this Protocol and to Articles 13 and 14 of the Fisheries Partnership Agreement.

4. If the total quantity of tuna catches per year by European Union vessels in the FSM EEZ exceeds 8 000 tons, the total annual financial contribution shall be increased by EUR 65 per additional ton of tuna caught. However, the total annual amount to be paid by the European Union cannot exceed a sum more than double the amount of the financial contribution referred to in paragraph 2(a). Where the quantities caught by European Union vessels exceed the quantities corresponding to twice the amount indicated in paragraph 2(a), the Parties shall consult each other as soon as possible in order to establish the amount due for the quantity caught in excess of this limit.

5. Payment shall be made no later than 45 days after the entry into force of the Protocol to the Fisheries Partnership Agreement for the first year and no later than the anniversary date of this Protocol for the following years.

6. FSM shall have full discretion regarding the use to which the financial contribution as specified in Article 2, paragraph 2(a) is put.

7. The financial contribution shall be paid into the FSM National Government Account at the Bank of FSM Micronesia in Honolulu, Hawaii. The banking details are as follows:

— Bank of FSM Micronesia, Honolulu Hawaii

— ABA Number 1213-02373

— Credit to Bank of FSM account number 08-18-5018

— Account Holder: FSM National Government

8. Copies of payments or wire transfers shall be forwarded to FSM National Oceanic Resource Management Authority (NORMA) as evidence of payments made.

Article 3

Promotion of responsible fishing in FSM waters

1. As soon as this Protocol enters into force and no later than 3 months after that date, the European Union and FSM shall agree, within the Joint Committee provided for in Article 9 of the Fisheries Partnership Agreement, on a multiannual sectoral programme and detailed implementing rules covering, in particular:

(a) annual and multiannual guidelines for using the financial contribution referred to in Article 2 paragraph 2(b) for the initiatives to be carried out each year;

(b) the objectives, both annual and multiannual, to be achieved with a view to introducing and promoting, over the long term, responsible fishing and sustainable fisheries, taking account of the priorities expressed by FSM in its national fisheries policy and other policies relating to or having an impact on the enhancement of responsible fishing and sustainable fisheries;

2. Any proposed amendments to the multiannual sectoral programme must be approved by both parties within the Joint Committee.

3. Each year, FSM shall allocate, if appropriate, an additional amount to the financial contribution referred to Article 2 paragraph 2(b) with a view to implementing the multiannual programme. This allocation must be notified to the European Union. FSM shall notify the European Commission of the new allocation no later than 45 days before the anniversary date of this Protocol.

4. Where the annual evaluation of the progress made in implementing the multiannual sectoral programme so warrants, the European Commission may ask for the share of the financial contribution referred to in Article 2 paragraph 2(b) of this Protocol to be reduced with a view to bringing the actual amount of financial resources allocated to implementation of the programme into line with its results.

Article 4

Scientific cooperation for responsible fishing

1. Both Parties hereby undertake to promote responsible fishing in the FSM EEZ based on the principle of non-discrimination between the different fleets fishing in those waters.

2. During the period covered by this Protocol, the European Union and FSM shall ensure the sustainable use of the fishery resources in the FSM EEZ.

3. The parties undertake to promote cooperation at sub-regional level on responsible fishing and, in particular, within the WCPFC and any other sub-regional or international organisation concerned.

4. In accordance with Article 4 of the Fisheries Partnership Agreement, Article 4 paragraph 1 of this Protocol and in light of the best available scientific advice, the Parties shall consult each other within the Joint Committee provided for in Article 9 of the Fisheries Partnership Agreement and adopt, where appropriate, measures in respect of the activities of European Union vessels authorised by this Protocol and licensed according to the Annex to ensure sustainable management of the fishery resources in the FSM EEZ.

Article 5

Adjustment of fishing opportunities by mutual agreement

The fishing opportunities referred to in Article 1 of this Protocol may be adjusted by mutual agreement insofar as the recommendations of WCPFC corroborate that such an adjustment will secure the sustainable management of FSM resources. In this case the financial contribution referred to in Article 2 paragraph 2(a) of this Protocol shall be adjusted proportionately and pro rata temporis.

Article 6

New fishing opportunities

1. Should European Union vessels be interested in fishing opportunities which are not indicated in Article 1 of this Protocol, such interest should be made known to the FSM in the form of an expression of interest or request. The granting of such request will be made only in accordance with FSM Laws and Regulations and may be the subject of another agreement.

2. The Parties may carry out joint exploratory fishing surveys in FSM EEZ in accordance with FSM Laws and Regulations. To this end and subject to scientific assessment, they shall hold consultations whenever one of the Parties so request and determine, on a case-by-case basis, relevant new resources, conditions and other parameters.

3. The Parties shall carry out exploratory fishing activities in accordance with FSM Laws and Regulations by mutual agreement. The authorisations for exploratory fishing shall be granted for test purposes, for a duration and a starting date to be decided by mutual agreement between the two Parties.

4. Where the Parties conclude that the exploratory surveys have produced positive results, while preserving ecosystems and conserving living marine resources, new fishing opportunities may be awarded to European Union vessels following consultation between the two Parties.

Article 7

Conditions governing fishing activities — exclusivity clause

1. European Union vessels may fish in FSM EEZ only if they are in possession of a valid fishing authorisation issued by FSM NORMA under this Protocol.

2. For fishing categories not covered by the Protocol in force, and for exploratory fishing, the FSM NORMA may grant fishing authorisations to European Union vessels. However, the granting of these authorisations is subject to FSM Laws and Regulations and mutual agreement.

Article 8

Suspension and review of the payment of the financial contribution

1. The financial contribution referred to in Article 2 paragraphs 2(a) and 2(b) of this Protocol shall be reviewed or suspended if:

(a) unusual circumstances, other than natural phenomena, prevent fishing activities in FSM EEZ; or

(b) following significant changes in the policy guidelines which led to the conclusion of this Protocol, either one of the Parties requests a review of the provisions with a view to a possible amendment thereof; or

(c) the European Union ascertains a breach of essential and fundamental elements on human rights as laid out by Article 9 of the Cotonou Agreement, in FSM.

2. The European Union reserves the right to suspend, totally or partially, the payment of the specific contribution provided for in Article 2 paragraph 2(b) of this Protocol:

(a) where the results obtained are found to be inconsistent with the programming following the evaluation carried out within the Joint Committee; or

(b) in case FSM fails to execute this specific contribution.

3. Payment of the financial contribution shall recommence once the situation has returned to the status prior to the occurrence of the above mentioned circumstances and following consultation and agreement of the two Parties confirming that the situation is likely to allow a return to normal fishing activities.

Article 9

Suspension and reinstatement of fishing authorisation

FSM reserves the right to suspend fishing authorisations provided for in Article 1 paragraph 2 of this Protocol where:

(a) a specific vessel is in a serious violation as defined by FSM Laws and Regulations; or

(b) a court order issued in relation to a violation of a specific vessel has not been respected by the shipowner. Once the court order has been respected, the fishing authorisation for the vessel shall be reinstated for the remaining period of the fishing authorisation.

Article 10

Suspension of the implementation of the Protocol

1. Implementation of the Protocol shall be suspended at the initiative of either one of the Parties if:

(a) unusual circumstances, other than natural phenomena, prevent fishing activities in FSM EEZ; or

(b) the European Union fails to make the payments provided for in Article 2, paragraph 2(a) of this Protocol for reasons not covered by Article 8 of this Protocol; or

(d) either one of the Parties does not respect the provisions laid out by of this Protocol; or

(e) following significant changes in the policy guidelines which led to the conclusion of this Protocol, either one of the Parties requests a review of the provisions with a view to a possible amendment thereof; or

(f) either one of the Parties ascertains a breach of essential and fundamental elements on human rights as laid out by Article 9 of the Cotonou Agreement.

2. Implementation of the Protocol may be suspended at the initiative of one Party if the dispute between the Parties is deemed to be serious and if the consultations held between the two Parties have not resulted in an amicable settlement.

3. Suspension of implementation of the Protocol shall require the Party concerned to notify its intention in writing at least 3 months before the date on which suspension is due to take effect.

4. In the event of suspension of implementation, the Parties shall continue to consult with a view to finding an amicable settlement to their dispute. Where such settlement is reached, implementation of the Protocol shall resume and the amount of the financial contribution shall be reduced proportionately and pro rata temporis according to the period during which implementation of the Protocol was suspended.

Article 11

National laws and regulations

1. The activities of European Union fishing vessels when operating in FSM EEZ shall be governed by the applicable Laws and Regulations in FSM, unless otherwise provided for in the Agreement, this Protocol and the Annex and Appendices hereto.

2. FSM shall inform the European Commission of any changes or new legislation which is related to fisheries policy, at least 3 months before the entry into force of such changes or new legislation.

Article 12

Repeal of the previous Protocol

This Protocol and its annexes repeal and replace the Protocol setting out the fishing opportunities and financial contribution provided for in the Partnership Agreement between the European Community and the Federated States of Micronesia on fishing in the Federated States of Micronesia, which entered into force on 26 February 2007.

Article 13

Duration

This Protocol and the annexes hereto shall apply for a period of 5 years, unless notice of termination is given in accordance with Article 14 of this Protocol.

Article 14

Termination

1. In the event of termination of the Protocol, the Party concerned shall notify the other Party in writing of its intention to terminate it at least 6 months before the date on which such termination would take effect. Dispatch of the notification referred to in the previous paragraph shall open consultations by the Parties.

2. Payment of the financial contribution referred to in Article 2 of this Protocol for the year in which the termination takes effect shall be reduced proportionately and pro rata temporis.

Article 15

Provisional application

This Protocol shall be applied provisionally from the date of the signature.

Article 16

Entry into force

This Protocol with its Annex shall enter into force on the date on which the Parties notify each other of the completion of the procedures necessary for that purpose.

ANNEX

CONDITIONS GOVERNING FISHING ACTIVITIES BY EUROPEAN UNION VESSELS IN THE FSM

CHAPTER I

MANAGEMENT MEASURES

SECTION 1 Issue of fishing authorisations (licences)

Only authorised vessels may obtain a fishing authorisation to fish in the Exclusive Economic Zone of the Federated States of Micronesia (FSM EEZ).

For a vessel to be authorised, the owner and the master must have fulfilled all prior obligations arising from their fishing activities in the Federated States of Micronesia (FSM) under the Agreement. The vessel itself must be in good standing on the FFA Regional Register of Fishing vessels and WCPFC Record of Fishing Vessels.

All European Union vessels applying for a fishing authorisation must be represented by an agent resident in the FSM. The name, address and contact numbers of that agent shall be stated in the fishing authorisation application.

The European Commission shall present by e-mail (norma@mail.fm) to the Executive Director (Executive Director) of the National Oceanic Resource Management Authority (FSM NORMA) with copy to the Delegation of the European Union responsible for FSM (hereinafter ‘the Delegation’) an application for each vessel wishing to fish under the Agreement at least 30 days before the beginning of the requested term of validity.

Applications shall be submitted to the Executive Director on the appropriate forms as drawn up in accordance with the specimen in Appendix 1a in case of the first fishing authorisation application and Appendix 1b in case of fishing authorisation renewal.

FSM NORMA shall take all the necessary steps to ensure that the data received as part of the fishing authorisation application are treated as confidential. Those data shall be used exclusively in the context of the implementation of the Agreement.

All fishing authorisation applications shall be accompanied by the following documents:

(a) payment or proof of payment of the fee for the period of validity of the fishing authorisation;

(b) a copy of the tonnage certificate, certified by the Flag Member State, giving the tonnage of the vessel expressed in GRT or GT;

(c) a recent, certified colour photograph, of at least 15 cm x 10 cm, showing a side view of the vessel in its current state;

(d) any other documents or certificates required under the specific rules applicable to the type of vessel concerned pursuant to this Protocol;

(e) a certificate of good standing on the FFA Regional Register of Vessels and the WCPFC Record of Fishing Vessels;

(f) a copy of the Certificate of Insurance in English valid for the duration of the fishing authorisation;

(g) an application fee or proof of payment of EUR 460 per vessel;

(h) an observer contribution fee of EUR 1 500 per vessel.

All the fees shall be paid into the FSM National Government Account at the Bank of FSM Micronesia in Honolulu, Hawaii as follows:

— Bank of FSM Micronesia, Honolulu Hawaii

— ABA Number 1213-02373

— Credit to Bank of FSM account number 08-18-5018

— Account Holder: FSM National Government

The fees shall include all national and local charges except for port taxes, service charges and transhipment fees.

10.

Fishing authorisations for all vessels shall be issued both electronically and in paper form to ship-owners with an electronic copy to the European Commission and to the Delegation within 30 working days of receipt of all the documents referred to in Chapter I Section 1 paragraph 7 of this Annex by the Executive Director. The electronic copy will still have to be replaced by the paper form once received.

11.

Fishing authorisations shall be issued for a specific vessel and shall not be transferable.

12.

At the request of the European Union and where force majeure is proven, a vessel’s fishing authorisation shall be replaced by a new fishing authorisation for another vessel whose features are similar to those of the first vessel for the remaining period of the duration of the fishing authorisation, with no further fee due. The total catch by both vessels concerned will be taken into account when the level of catches by European Union vessels is taken into consideration to determine if any additional payments are to be made by the European Union according to Article 2 paragraph 4 of the Protocol.

13.

The owner of the first vessel shall return the fishing authorisation to be cancelled to the Executive Director via the Delegation.

14.

The new fishing authorisation shall take effect on the day the Executive Director issues the fishing authorisation and is valid for the remaining period for the duration of the first fishing authorisation. The Delegation shall be informed of the new fishing authorisation.

15.

The fishing authorisation must be kept on board at all times, prominently displayed in its wheelhouse, without prejudice to Chapter V Section 3 paragraph 1 of this Annex. For a reasonable period of time after issuance of the fishing authorisation, not to exceed 45 days, and pending receipt by the vessel of the original fishing authorisation, a document received electronically, or other documentation approved by the Executive Director, is a valid document and shall constitute sufficient evidence for purpose of surveillance, monitoring and enforcement of the Agreement. The document received electronically will still have to be replaced by the paper form once received.

16.

The two Parties shall seek agreement for the purposes of promoting the introduction of a fishing authorisation system based exclusively on the electronic exchange of all the information and documents described above. The two Parties shall seek agreement for the purposes of promoting the rapid replacement of the paper fishing authorisation by an electronic equivalent such as the list of vessels authorised to fish in FSM EEZ, as specified in paragraph 1 of this section.

SECTION 2 Fishing authorisation conditions – fees and advance payments

Fishing authorisations shall be valid for 1 year. They may be renewable. Renewal of fishing authorisations shall be subject to the number of available fishing opportunities established by the Protocol.

The fee shall be EUR 35 per tonne caught within the FSM EEZ.

Fishing authorisations shall be issued once the following standard amounts have been paid to the Account named in Chapter I, Section 1, paragraph 8 of this Annex:

(a) EUR 15 000 per tuna seiner vessel, equivalent to the fees due for 428 tonnes of tuna and tuna-like species caught per year. For the first year of implementation of this Protocol, the advance payment by the European Union ship-owners already paid in the previous Protocol shall apply; and

(b) EUR 4 200 per surface long-liner, equivalent to the fees due for 120 tonnes of tuna and tuna-like species caught per year.

The final statement of the fees due for the fishing year shall be drawn up by the European Commission by 30 June each year for the amounts caught during the year before and on the basis of the catch declarations made by each ship-owner. The data should be confirmed by the scientific institutes responsible for verifying catch data of the European Union (Institut de Recherche pour le Development (IRD), the Instituto Español de Oceanografía (IEO) or the Instituto Portugues de Investigaçao Maritima (IPIMAR).

The fee statement drawn up by the European Commission shall be transmitted to the Executive Director for verification and approval.

FSM NORMA may question the fee statement within 30 days from the invoice of the statement and, in case of disagreement, request the call of the Joint Committee.

If no objections are raised within 30 days from the invoice of the statement, the fee statement is considered to be accepted by FSM NORMA.

The final fee statement shall simultaneously be notified without delay to the Executive Director, the Delegation, and the ship-owners via their national administrations.

Any additional payments shall be made by the ship-owners to the FSM within forty-five (45) days from notification of the confirmed final statement into the Account named in Chapter I, Section 1, paragraph 8 of this Annex.

However, if the amount of the final statement is lower than the advance referred to in paragraph 3 of this Section, the resulting balance shall not be reimbursable to the ship-owner.

CHAPTER II

FISHING ZONES AND ACTIVITY

SECTION 1 Fishing zones

The vessels referred to in Article 1 of the Protocol shall be authorised to engage in fishing activities within FSM EEZ, except in the territorial waters and, named banks as depicted in charts: DMAHTC NO 81019 (2nd ed. March 1945; revised 7/17/72, corrected thru NM 3/78 of June 21, 1978, DMAHTC NO. 81023 (3rd ed. Aug. 7 1976) and DMAHATC NO 81002 (4th ed. Jan. 26, 1980 corrected thru NM 4/48). The Executive Director shall communicate to the European Commission any modification to the said closed areas at least 2 months before their application.

In any case, all fishing shall not be permitted within 2 nautical miles radius of any anchored fish-aggregating device of the Government of FSM, or any other citizen or entity for which notification of its location shall be given by geographical coordinates and 1 nautical mile from any submerged reef as depicted in the charts in paragraph 1 above.

SECTION 2 Fishing activities

Only fishing or tuna and tuna-like species shall be permitted by purse seine and longline vessels. Any incidental by-catch of a species of fish other than tuna shall be reported to FSM NORMA.

Fishing activities of the European Union vessels shall be done in accordance with the requirements of WCPFC conservation and management measures including CMM-2008-01.

No bottom fishing or coral fishing is permitted within the FSM EEZ.

European Union vessels shall be required to stow all fishing gear whenever such vessels are within the internal waters of each state, the Territorial Sea or within 1 mile of submerged reefs.

European Union vessels shall conduct all fishing activities in a manner which will not disrupt traditional, local-based fisheries, and shall release all turtles, marine mammals, seabirds and reef fish in a manner which will provide this miscellaneous catch with the greatest chance of survival.

European Union vessels, its master and operator shall conduct all fishing activities in a manner, which will not disrupt the fishing operations of other fishing vessels and shall not interfere with the fishing gear of other fishing vessels.

CHAPTER III

MONITORING

SECTION 1 Catch recording arrangements

Masters of vessels shall record in their fishing logsheet the information listed in Appendix 2a and 2b. Electronic submission of catch data/logsheet data should apply to vessels over 24 meters from 1 January 2010 and gradually to vessels over 12 meters as of 2012. The Parties shall seek agreement for the purposes of promoting the introduction of catch data on system based exclusively on the electronic exchange of all the information described above. The two Parties shall seek agreement for the purposes of promoting the rapid replacement of the paper logsheet formats by electronic formats.

If no sets were made by a vessel for a particular day, or if a set is made and no fish are caught, the vessel master shall be required to record this information on the daily logsheet form. On days when no fishing operations are conducted, before midnight local time of that day, the vessel must record on the logsheet the fact that no operations were conducted.

Time and date of entries in and departures from FSM EEZ shall be recorded in logsheet immediately after entry in and departure from FSM EEZ.

For incidental by-catch of species other than tuna, the European Union vessels shall record the species of fish taken and the size and quantity of each species by weight or number, as specified in the logsheet whether the catch is kept on board the vessel or was returned to the sea.

The logsheets shall be filled in legibly on a daily basis and signed by the master of the vessel.

SECTION 2 Catch communication arrangements

For the purposes of this Annex, the duration of a fishing trip by the European Union vessel shall be defined as follows:

(a) either the period elapsing between entering and leaving FSM EEZ;

(b) or the period elapsing between entering FSM EEZ and a transhipment;

All European Union vessels authorised to fish in the FSM EEZ under the Agreement shall communicate their catches in the FSM EEZ to the Executive Director in the following manner:

(a) all signed logsheet forms shall be sent through Fisheries Monitoring Centre of Flag Member States to the Fisheries Monitoring Centre of FSM and to the European Commission by electronic means, within 5 days after each landing or transhipment operation;

(b) master of vessel shall send weekly catch report with information listed in Appendix 3 Part 3 to the Executive Director and to the European Commission. Weekly positions and catch reports shall be kept on board until the end of landing or transhipment operations.

Entering and leaving the zone:

(a) European Union vessels shall notify the Executive Director at least 24 hours in advance of their intention to enter and immediately upon departure from the FSM EEZ. As soon as the vessels enter the FSM EEZ, they shall inform the Executive Director by fax or e-mail in accordance with the specimen provided in Appendix 3 or by radio;

(b) when notifying departure, vessels shall also communicate their position and the volume and species in catches kept on board in accordance with the specimen provided in Appendix 3. These communications shall be made preferably by fax, but failing this, in the case of vessels without a fax, by e-mail or by radio.

Vessels found to be fishing without having informed the Executive Director shall be regarded as vessels without a fishing authorisation.

Vessels shall also be informed of the fax and telephone numbers and e-mail address of FSM NORMA when the fishing authorisation is issued.

Each European Union vessel shall make the logsheets and Catch Reports immediately available for inspection by enforcement officers and other individuals and entities authorised by FSM NORMA.

SECTION 3 Vessel monitoring system

Each European Union vessel shall be required to comply with the FFA Vessel Monitoring System (FFA VMS) currently applicable in the FSM EEZ when operating in the FSM EEZ. Each European Union vessel shall have installed on board, maintained, and fully operational at all times a mobile transmission unit (MTU) approved by FFA. The vessel and the operator agree not to tamper with, remove or have removed any MTU from the vessel after installation, except for the purposes of maintenance and repair as required. The operator and each vessel shall be responsible for the purchase, maintenance and operational costs of the MTU, and shall cooperate fully with FSM NORMA in its utilisation.

Paragraph 1 above does not preclude the Parties from considering alternative VMS options compatible with the WCPFC VMS.

SECTION 4 Landing

European Union vessels wishing to land catches in the ports of FSM shall do so within FSM designated ports. A list of these designated ports is provided as Appendix 4.

The owners of such vessels must notify the following information to the Executive Director and to the FMC Flag Member State at least 48 hours in advance in accordance to the specimen provided in Appendix 3 Part 4. If landings occur in a port outside EEZ of FSM, notification shall be made on the same conditions previously referred, to the port State where landing will take place and the FMC of Flag Member State.

Captains of European Union fishing vessels engaged in landing operations in an FSM port shall allow and facilitate the inspection of such operations by FSM inspectors. Once the inspection has been completed, a certificate shall be issued to the Captain of the vessel.

European Union vessels shall not discharge fish or by-catch into any port or give away fish or by-catch to any persons or entities without prior written authorisation by the appropriate authority in the affected FSM State and prior written approval from FSM NORMA.

SECTION 5 Transhipment

European Union vessels wishing to tranship catches in the waters of FSM shall do so within FSM designated ports. A list of these designated ports is provided as Appendix 4.

The owners of such vessels must notify the following information to the Executive Director at least 48 hours in advance.

Transhipment shall be considered as an end of a trip. Vessels must therefore submit their catch declarations to the Executive Director and state whether they intend to continue fishing or leave the FSM EEZ.

European Union vessels fishing in the FSM EEZ shall not tranship their catch at sea under any circumstances.

Any transhipment of catches not covered above shall be prohibited in the FSM EEZ. Any person infringing this provision shall be liable to the penalties under the FSM Laws and Regulations.

Captains of European Union fishing vessels engaged in transhipment operations in an FSM port shall allow and facilitate the inspection of such operations by FSM inspectors. Once the inspection has been completed, a certificate shall be issued to the Captain of the vessel.

CHAPTER IV

OBSERVERS

At the time of lodging a fishing authorisation application, each European Union vessel concerned shall contribute an observer placement fee as specified in Chapter I Section 1 paragraph 7(h) into the Account named in Chapter I Section 1 paragraph 8 of this Annex, specifically for the observers programme.

European Union vessels authorised to fish in the FSM EEZ under the Agreement shall take on board observers on the terms set out below:

For purse seine vessels:

— European Union purse seine vessels shall carry at all times an observer appointed by either FSM Fisheries Observer Program or WCPFC Regional Observer Program (WCPFC ROP) while operating in the FSM EEZ.

For longline vessels:

(a) the Executive Director shall determine each year the scope of the programme for observation on board on the basis of the number of vessels authorised to fish FSM EEZ and the state of the resources targeted by those vessels. He/she shall determine accordingly the number or percentage of vessels which shall be required to take an observer on board;

(b) the Executive Director shall draw up a list of vessels designated to take an observer on board and a list of appointed observers. These lists shall be kept up to date. They shall be forwarded to the European Commission as soon as they have been drawn up and every 3 months thereafter where they have been updated;

(c) the Executive Director shall inform the ship-owners concerned, or their agents, of his intentions to take on board an appointed observer on their vessels at the time the fishing authorisation is issued, or no later than fifteen (15) days before the observer’s planned embarkation date and whose name shall be notified as soon as possible;

(d) the time spent on board by observers shall be fixed by the Executive Director but, as a general rule, it should not exceed the time required to carry out their duties. The Executive Director shall inform the ship-owners or their agents thereof when notifying them of the name of the observer appointed to be taken on board the vessel concerned.

Subject to the provisions of this Chapter, paragraph 2A, the ship-owners concerned shall make known at which FSM ports and on what dates they intend to take observers on board 10 days prior to the date intended to take on the observer at the commencement of a trip.

Where observers are taken on board in a foreign port, their travel costs shall be borne by the ship-owner. Should a vessel with an observer from FSM on board leave the FSM EEZ, all measures must be taken to ensure the observer’s return to the FSM as soon as possible at the expense of the ship-owner.

If the observer is not present at the time and place agreed and during the six (6) hours following the time agreed, ship-owners shall be automatically absolved of their obligation to take the observer on board.

Observers shall be treated as officers. They shall carry out the following tasks:

(a) observe the fishing activities of the vessels;

(b) verify the position of vessels engaged in fishing operations;

(d) note the fishing gear used;

(e) verify the catch data for FSM EEZ recorded in the logsheet;

(f) verify the percentages of by-catches and estimate the quantity of discards of species of marketable fin-fish, crustaceans, cephalopods and marine mammals;

(g) report fishing data once a week by radio, including the quantity of catches and by-catches on board.

Captains and masters shall permit authorised observers to board the authorised vessels operating within the FSM EEZ and shall do everything in their power to ensure the physical safety and welfare of observers during performance of their duties:

(a) the captain or master shall allow and assist such authorised observer to board the vessel for scientific, monitoring, and other functions;

(b) the captain or master shall assist the observer to have full access and to use facilities and equipment on board the vessel, which the authorised observer may determine necessary to carry out the observer’s duties;

(c) observers shall have access to the bridge, fish on board and areas, which may be used to hold, process, weigh and store fish;

(d) observers may remove a reasonable number of samples and shall have full access to the vessel’s records, including its logs, catch reports, and documentation for the purpose of inspection and copying; and

(e) observers shall be allowed to gather any other information relating to fisheries in the FSM EEZ.

While on board, observers shall:

(a) take all appropriate steps to ensure that their presence on the vessel does not interfere in the normal operation of the vessel; and

(b) respect the material and equipment on board and the confidentiality of all documents belonging to the said vessel.

At the end of the observation period and after debriefing an activity report is drawn up to be signed in the presence of the master who may provide additional comments considered relevant, followed by the master’s signature. Copies of the report shall be provided to the master when the observer is put ashore and to the Delegation.

10.

Ship-owners shall bear the cost of accommodating observers in the same conditions as the officers on the vessel.

11.

The salary and social contributions of the observer shall be borne by FSM NORMA when the vessel is operating in the FSM EEZ.

CHAPTER V

CONTROL AND ENFORCEMENT

SECTION 1 Vessel identification

For fisheries and marine safety purposes, every vessel shall be marked and identified in accordance with the Food and Agricultural Organisation (FAO) approved standard specification for the marking and identification of fishing vessels.

The letter(s) of the port or district in which the vessel is registered and the number(s) under which it is registered shall be painted or displayed on both sides of the bow, as high above the water as possible so as to be clearly visible from the sea and the air, in a colour contrasting with the background on which they are painted. The name of the vessel and her registration port shall be painted also on the bow and stern of the vessel.

FSM and the European Union may require if necessary, that the international radio call sign (IRCS), the number of International Maritime Organisation (IMO), or the external registration letters and numbers, be painted on top of the wheelhouse, so as to be clearly visible from the air, in a colour contrasting with the ground on which it is painted:

(a) the contrasting colours shall be white and black; and

(b) the external registration letters and numbers painted or displayed on the hull of the vessel shall not be removable, effaced, altered, illegible, covered or concealed.

Any vessel not displaying its name and radio call sign or signal letters in the prescribed manner may be escorted to an FSM port for further investigation.

A vessel operator shall ensure the continuous monitoring of the international distress and calling frequency (2 182) kHz (HF), and/or the international safety and calling frequency (156.8) MHz (Channel 16, VHF-FM) to facilitate communication with the fisheries management, surveillance and enforcement authorities of the FSM Government.

A vessel operator shall ensure that a recent and up to date copy of the International code of Signals (Interco) is on board and accessible at all times.

SECTION 2 Communication with patrol vessels of Federated States of Micronesia

Communication between the permitted vessels and the patrol vessels of the Government shall be made by international signal codes as follows:

International Signal Code – Meaning:

L	Stop immediately
SQ3	Stop or slow down, I wish to board your vessel
QN	Lay your vessel along the star board side of our vessel
QN1	Lay your vessel along the port side of our vessel
TD2	Are you a fishing vessel?
C	Yes
N	No
QR	We cannot lay our vessel alongside your vessel
QP	We will lay our vessel alongside your vessel

FSM shall provide to the European Commission a list of all Patrol Vessels to be used for fisheries control purposes. This list shall include all the details related with those vessels, namely: Name, Flag, Type, photo, identification external marks, IRCS and communication capability.

Patrol Vessel shall be clearly marked and identifiable as being on government use/service.

SECTION 3 Vessel list

The European Commission shall keep an up-to-date list of the vessels to which a fishing authorisation has been issued under the Protocol. This list shall be notified to the FSM authorities responsible for fisheries inspection as soon as it is drawn up and each time it is updated.

SECTION 4 Applicable laws and regulations

The vessel and its operators shall strictly comply with this Annex and laws and regulations of the FSM and its States. They should also comply with international treaties, conventions, and fisheries management agreements to which both the FSM and the European Union are a party. Failure to comply strictly with this Annex and with the laws and regulations of the FSM and its States may result in substantial fines and other civil and criminal penalties.

SECTION 5 Control procedures

Captains or masters of European Union vessels engaged in fishing activities in the FSM EEZ shall allow and facilitate boarding and the discharge of their duties by any FSM authorised enforcement official responsible for the inspection and control of fishing activities at any time within the FSM EEZ or the Territorial Waters or internal waters of each State of the FSM.

In order to facilitate safer inspection procedures, boarding should be conducted with prior notice sent to the vessel, including the identity of the inspection platform and the name of the inspector.

Enforcement officials shall have full access to the vessel’s records, including its logsheets, Catch Reports, documentation and any electronic device used for recording or storing data, and the captain or master of the vessel shall permit such authorised officials to make notation on any permit issued by FSM NORMA or other documentation required under the Agreement.

The captain or master shall immediately comply with all reasonable instructions given by the authorised officials, and shall facilitate safe boarding, and facilitate the inspection of the vessel, gear, equipment, records, fish and fish products.

The vessel’s captain, master or crew shall not assault, obstruct, resist, delay, refuse boarding, intimidate, or interfere with an authorised official in the performance of duties.

These officials shall not remain on board for longer than is necessary for the discharge of their duties.

Where the provisions set out in this Chapter are not complied with, FSM reserves the right to suspend the fishing authorisation of the offending vessel until formalities have been completed and to apply the penalty laid down in applicable FSM laws and regulations. The European Commission shall be informed thereof.

Once the inspection has been completed, a certificate shall be issued to the master of the vessel.

FSM shall ensure that all staff involved directly in the inspection of fishing vessels covered by this agreement will have the necessary skills to conduct a fisheries inspection and are familiar with the fisheries concerned. During the inspection on board the fishing vessels covered by this agreement, the fisheries inspectors of FSM shall ensure that the crew, vessel and her cargo are treated with full respect for international provisions foreseen on the WCPFC Boarding and Inspection Procedures.

SECTION 6 Arrest procedure

1. Arrest of fishing vessels

(a) The Executive Director shall inform the Delegation, within 24 hours, of all arrests and penalties imposed on European Union vessels in the FSM EEZ.

(b) The Delegation shall at the same time receive a brief report of the circumstances and reasons leading to the arrest.

2. Statement of arrest

(a) After the inspection officer has drawn up a statement, the master of the vessel shall sign it.

(b) This signature shall not prejudice the rights of the master or any defence which he may make to the alleged infringement.

(c) The master shall take the vessel to a port designated by the inspection officer. In the case of minor infringements, the Executive Director may authorise the boarded vessel to continue its fishing activities.

3. Consultation meeting in the event of arrest

(a) Before any measures regarding the master or the crew of the vessel or any action regarding the cargo and equipment of the vessel are considered, other than those to safeguard evidence relating to the presumed infringement, a consultation meeting shall be held, within one working day of the receipt of the above information, between the Delegation and the Executive Director, possibly attended by a representative of the Flag Member States concerned.

(b) At the meeting, the Parties shall exchange any relevant documentation or information helping to clarify the circumstances of the established facts. The ship-owner or its agent shall be informed of the outcome of the meeting and of any measures resulting from the arrest.

4. Settlement of arrest

(a) Before any judicial procedure, an attempt shall be made to resolve the presumed infringement through a compromise procedure. This procedure shall end no later than four (4) working days after the arrest.

(b) In the event of an amicable settlement, the amount of the fine shall be determined in accordance with FSM laws and regulations.

(c) If the case cannot be settled by amicable procedure and has to be brought before a competent judicial body, a bank security set to take account of the arrest costs and the fines and compensation payable by the parties responsible for the infringement shall be paid by the ship-owner into the Account named in Chapter I, Section 1, paragraph 8 of this Annex.

(d) The bank security shall be irrevocable until the legal proceedings have been concluded. It shall be released once legal proceedings end without a conviction. Similarly, in the event of a conviction leading to a fine of less than the security lodged, the balance shall be released by the competent judicial body in charge of the legal proceedings.

(e) The vessel shall be released and its crew authorised to leave the port:

(1) once the obligations arising under the amicable settlement have been fulfilled; or

(2) when the bank security referred to in paragraph 4(c) has been lodged and accepted by the competent judicial body, pending completion of the legal proceedings.

CHAPTER VI

ENVIRONMENTAL RESPONSIBILITY

European Union vessels recognise the need to preserve the fragile (marine) environmental conditions of the lagoons and atolls of the FSM and the European Union vessels shall not discharge any substance that is likely to cause damage to, or deterioration in, the quality of marine resources.

Where bunkering, or any other transfer of any product included in the United Nations International Maritime Dangerous Goods (IMDG) code takes place during a fishing trip in the FSM EEZ, European Union vessels shall report such activity in accordance with the specimen provided in Appendix 3 Part 5.

CHAPTER VII

EMBARKING SEAMEN

Each European Union vessel fishing under the Agreement shall undertake to employ at least one (1) FSM seamen as a crew-member.

Ship-owners shall be free to select the seamen they take on board their vessels from the names on a list submitted by the Executive Director.

The ship-owner or agent shall inform the Executive Director of the names of FSM seamen taken on board the vessel concerned, mentioning their position in the crew.

The International Labour Organisation (ILO) Declaration on Fundamental Principles and Rights at Work shall apply as of right to seamen signed on by European Union vessels. This concerns in particular the freedom of association and the effective recognition of the right to collective bargaining, and the elimination of discrimination in respect of employment and occupation.

FSM seamen’s employment contracts, a copy of which shall be given to the signatories, shall be drawn up between the ship-owners’ agent(s) and the seamen and/or their trade unions or representatives in consultation with the Executive Director. These contracts shall guarantee the seamen the social security cover applicable to them, including life insurance and sickness and accident insurance.

FSM seamen’s wages shall be paid by the ship-owners. They shall be fixed, before fishing authorisations are issued, by mutual agreement between the ship-owners or their agents and the Executive Director. However, the wage conditions granted to FSM seamen shall not be lower than those applied to FSM crews and shall under no circumstances be below ILO standards.

All seamen employed aboard European Union vessels shall report to the master of the vessel designated on the day before their proposed embarkation date. Where a seaman fails to report at the date and time agreed for embarkation, ship-owners shall be automatically absolved of their obligation to take the seaman on board.

CHAPTER VIII

OPERATOR LIABILITY

The operator shall ensure that its vessels are seaworthy and contain adequate life safety equipment and survival gear for each passenger and member of the crew.

For the protection of the FSM, its States, and the citizens and residents thereof, the operator shall maintain adequate and complete insurance coverage on its vessel through an internationally recognised insurance carrier acceptable to FSM NORMA for FSM EEZ, including areas within the lagoons and atolls, the Territorial Sea and submerged reefs as evidenced by the Certificate of Insurance referred to in Chapter I Section 1 paragraph 7(f) of this Annex.

In the event a European Union vessel is involved in a maritime accident or incident in FSM EEZ (including internal waters and the Territorial Sea), resulting in damages of any kind to the environment, to property or to any person, the vessel and the operator shall immediately notify FSM NORMA and the FSM Secretary of the Department of Transportation, Communications and Infrastructure.

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