Fisheries Amendment Act 1987

No. 177 of 1987

An Act to amend the Fisheries Act 1952 to give effect to certain obligations that Australia has as a party to the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America, and for other purposes

[Assented to 26 December 1987]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title etc.

1. (1) This Act may be cited as the Fisheries Amendment Act 1987.

(2) In this Act, “Principal Act” means the Fisheries Act 19521.

Commencement

2. (1) Sections 1 and 2, paragraph 15 (a) and section 16 shall come into operation on the twenty-eighth day after the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act shall come into operation on a day to be fixed by Proclamation.

Interpretation

3. Section 4 of the Principal Act is amended:

(a) by inserting in subsection (1) the following definitions in their respective appropriate alphabetical positions (determined on a letter-by-letter basis):

“ ‘Administrator’ means the person or organisation who or that is the Administrator within the meaning of the Treaty;

‘fishing vessel of the United States’ has the same meaning as it has when used in the Treaty;

‘licence’ means a licence granted under section 9;

‘observer’ means a person who is an observer within the meaning of Part 6 of Annex I to the Treaty;

‘Pacific Island party’, in relation to the Treaty, has the same meaning as it has when used in the Treaty;

‘Pacific Island party officer’ means a person (other than a person referred to in paragraph (a), (b), (c) or (d) of the definition of ‘officer’) who is authorised by or under the law of a Pacific Island party to perform the functions and duties of an observer on Treaty boats;

‘party’, in relation to the Treaty, has the same meaning as it has when used in the Treaty;

‘Treaty’ means the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America that was signed at Port Moresby on 2 April 1987, a copy of which is set out in the Schedule, and, subject to subsection (5), includes that Treaty as amended from time to time;

‘Treaty area’ has the same meaning as it has when used in the Treaty;

‘Treaty boat’ means a foreign boat that is a fishing vessel of the United States;

‘Treaty licence’ means a licence issued, for the purposes of the Treaty, by the Administrator in respect of a Treaty boat;

‘Treaty licensing area’ means the waters that are within both:

(a) the Australian fishing zone; and

(b) the Treaty area;

other than waters within an area that is a closed area in relation to Australia within the meaning of Annex I to the Treaty.”; and

(b) by adding at the end the following subsections:

“(4) A reference in this Act to a relevant Treaty purpose is a reference to the purpose of:

(a) performing the functions and duties of an observer in accordance with Part 6 of Annex I to the Treaty or an observer program conducted in accordance with the Treaty; or

(b) ascertaining whether the provisions of this Act have been or are being complied with on, or in relation to the use of, a Treaty boat while it is in the Australian fishing zone.

“(5) An amendment to the Treaty:

(a) does not have effect for the purposes of this Act unless the amendment is declared by the regulations to have effect for the purposes of this Act; and

(b) takes effect for the purposes of this Act on the day on which the regulations referred to in paragraph (a) take effect or such later day as is specified in those regulations.”.

4. After section 9d of the Principal Act the following section is inserted:

Treaty licences

“9e. (1) For the purposes of this Act, a Treaty licence shall be taken to be in force in respect of a boat at all times during the period of validity of the Treaty licence stated in the licence, except when the Treaty licence is suspended within the meaning of this section.

“(2) A Treaty licence issued in respect of a Treaty boat is suspended when:

(a) each party to the Treaty has been notified in writing by the Minister that an investigation is being conducted in relation to an alleged contravention specified in the notice by a person of a provision of the Treaty with the use of, or in relation to, the boat; or

(b) the Minister is notified in writing by the Administrator that the Treaty licence has been suspended in accordance with paragraph 8 of Article 5 of the Treaty.

“(3) A Treaty licence ceases to be suspended:

(a) where the Treaty licence is suspended at a particular time because paragraph (2) (a) applies to the Treaty licence—the Minister has, by writing, notified the Administrator that the investigation referred to in that paragraph has been completed; or

(b) where the Treaty licence is suspended at a particular time because paragraph (2) (b) applies to the Treaty licence—when the Minister is notified in writing by the Administrator that the Treaty licence is no longer suspended.”.

Powers of officers

5. Section 10 of the Principal Act is amended:

(a) by omitting paragraph (1) (g) and substituting the following paragraphs:

“(g) require the master of a boat to produce any licence or Treaty licence for or in respect of the boat;

(ga) take copies of, or extracts from, a licence or Treaty licence produced in accordance with a requirement under paragraph (g);”;

(b) by inserting in paragraph (1) (h) “or a Treaty boat in respect of which a Treaty licence has been issued” after “Act”;

(c) by omitting from paragraph (1) (i) “or is” and substituting “or a Treaty boat in respect of which a Treaty licence has been issued, or who is”; and

(d) by inserting after subsection (1) the following subsections:

“(1a) Subject to subsection (1b), a Pacific Island party officer may, for a relevant Treaty purpose, exercise any of the powers described in paragraphs (1) (a), (aa), (aaa), (ba), (c), (e), (ea), (g), (ga), (h), (ha) and (i) and, where a Pacific Island party officer exercises such a power, he or she shall, for the purposes of this Act, be taken to have exercised the power as an officer.

“(1b) Subsections (2) and (3) apply in relation to the exercise of powers under this section by Pacific Island party officers as if:

(a) references in those subsections to an officer were references to a Pacific Island party officer; and

(b) references in those subsections to an officer’s identity card were references to a document, issued to a person, being a Pacific Island party officer, by the Pacific Island party that authorised the person to perform the functions and duties of an observer on a Treaty boat, that identifies that person as a person so authorised.”.

Offences

6. Section 13 of the Principal Act is amended:

(a) by omitting paragraph (1) (a) and substituting the following paragraph:

“(a) in an area of proclaimed waters, be in charge of a boat that is being used for fishing unless:

(i) the person is the holder of a master fisherman’s licence that is in force in relation to the area; or

(ii) where the boat is a Treaty boat—a Treaty licence is in force in respect of the boat;”; and

(b) by omitting from paragraph (1) (b) all the words after “that boat; or” and substituting the following:

“(iv) have in the person’s possession or charge an Australian boat;

unless:

(v) the person is, or is acting on behalf of, the holder of a licence under subsection 9 (2) authorising the use of the boat in that area for taking fish; or

(vi) in the case of the use of a Treaty boat as described in subparagraph (i) or (ii)—a Treaty licence is in force in respect of the boat;”.

Having foreign boat equipped with nets etc.

7. Section 13ab of the Principal Act is amended:

(a) by omitting from subsection (1) all the words after “capturing fish” and substituting the following:

“unless:

(a) the use of the boat in that area is authorised by a licence in force under sub-section 9 (2); or

(b) a Treaty licence is in force in respect of the boat.”; and

(b) by omitting subsection (4) and substituting the following subsection:

“(4) In this section, ‘authorised area’, in relation to a boat means:

(a) where the use of the boat for taking, processing and carrying fish is authorised by a licence—an area within the Australian fishing zone within which the use of the boat is so authorised; or

(b) where the use of the boat for taking fish is authorised by a Treaty licence—the Treaty licensing area.”.

Using foreign boat for fishing in Australian fishing zone

8. Section 13b of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:

“(1) A person shall not, in an area of proclaimed waters comprised in the Australian fishing zone:

(a) use a foreign boat for taking fish; or

(b) use a foreign boat for processing fish that have been taken with the use of that boat;

unless:

(d) where the boat is a Treaty boat—a Treaty licence is in force in respect of the boat.”.

9. After section 13bb of the Principal Act the following section is inserted:

Foreign boats not to contravene condition of Treaty licence

“13bc. (1) A person shall not, in an area of the Australian fishing zone that is within the Treaty area:

(a) use a Treaty boat; or

(b) do an act or omit to do an act on or in relation to a Treaty boat;

in respect of which a Treaty licence is in force, in contravention of a requirement that is, under the Treaty, a condition of the Treaty licence.

“(2) A person who contravenes subsection (1) is guilty of an offence and is punishable:

(a) on summary conviction—by a fine not exceeding:

(i) if the person is a natural person—$5,000; or

(ii) if the person is a body corporate—$25,000; and

(b) on conviction on indictment—by a fine not exceeding:

(i) if the person is a natural person—$50,000; or

(ii) if the person is a body corporate—$250,000.

“(3) For the purposes of subsection (1), the use of an aircraft in association with the fishing activities of a Treaty boat shall be taken to be an action taken in relation to the Treaty boat.”.

Forfeiture

10. Section 13c of the Principal Act is amended by omitting from subsection (2) “or 13bb” and substituting “, 13bb or 13bc”.

Court may make certain orders

11. Section 13e of the Principal Act is amended by inserting in subsection (1) “or sub-section 13bc (1)” after “or (i)”.

Certain offences to be indictable offences

12. Section 15 of the Principal Act is amended by inserting in subsection (1) “, 13bc (2)” after “13bb (1)”.

13. After section 15 of the Principal Act the following section is inserted:

Certain prosecutions to require consent of Minister

“15aa. A prosecution for an offence against this Act or the regulations that is alleged to have been committed on, with the use of, or in relation to, a Treaty boat, shall not be instituted except with the consent in writing of the Minister.”.

Evidence

14. Section 16 of the Principal Act is amended:

(a) by inserting after subsection (1a) the following subsection:

“(1b) For the purposes of the application of subsection (1) or (1a) in relation to an offence alleged to have been committed on, or in relation to, a Treaty boat, a reference in those subsections to an officer includes a reference to a Pacific Island party officer.”;

(b) by inserting after paragraph (2) (dd) the following paragraphs:

“(de) that at a particular time specified in the certificate the Minister had notified all the parties to the Treaty that an

investigation of an alleged contravention of the kind referred to in paragraph 9e (2) (a) was being conducted in relation to a Treaty boat specified in the certificate in respect of which a Treaty licence was in force and that the Minister had not, at or before a particular time specified in the certificate, notified the Administrator that the investigation had been completed;

(df) that at a particular time specified in the certificate the Minister was notified in writing by the Administrator of the suspension, in accordance with the Treaty, of a Treaty licence issued in respect of a Treaty boat specified in the certificate and either:

(i) that at a particular time specified in the certificate the Minister was notified in writing by the Administrator that the Treaty licence was no longer suspended; or

(ii) that at a particular time specified in the certificate no such notification had been received by the Minister;

(dg) that the document that is attached to the certificate and states:

(i) the date on which a Treaty licence was issued by the Administrator, or if more than one such Treaty licence has been issued by the Administrator, the date on which the most recent Treaty licence was so issued, in respect of the boat specified in the document and the date at which that Treaty licence expires; or

(ii) that there has been no Treaty licence issued by the Administrator in respect of the boat specified in the document;

is a copy of a letter, facsimile transmission, telex or cablegram received by an officer or employee of the Commonwealth from the Administrator;

(dh) that the document that:

(i) is attached to the certificate; and

(ii) states that the person named in the document was, at the time or during the period specified in the document, authorised by or under the law of the Pacific Island party specified in the document to perform the functions and duties of an observer on Treaty boats;

is a copy of a letter, facsimile transmission, telex or cablegram received by an officer or employee of the Commonwealth from an authority of that Pacific Island party;”; and

“(4) In proceedings for an offence against this Act or the regulations, a certificate given under this section is:

(a) in all cases—prima facie evidence of the matters stated in the certificate; and

(b) in the case of a certificate of the kind referred to in paragraph (2) (dg) or (dh) given in respect of a particular document—prima facie evidence of the matters stated in that document.”.

Regulations

15. Section 17 of the Principal Act is amended:

(a) by inserting after paragraph (1) (ab) the following paragraph:

“(ac) for providing for the return to a person ascertained in accordance with the regulations or a plan of management of:

(i) licences, permits and other instruments granted or executed under this Act or the regulations; or

(ii) certificates and other documents issued to a person under a plan of management;

that have been cancelled;”;

(b) by omitting paragraph (1) (b) and substituting the following paragraph:

“(b) for prescribing signals and rules of navigation to be observed, in proclaimed waters, by masters of boats that are licensed under this Act or under the Treaty;”; and

16. After section 17 of the Principal Act the following section is inserted:

Orders

“18. (1) Subject to subsection (2), the regulations may make provision for or in relation to empowering the Minister to make orders, not inconsistent with this Act, with respect to any matter for or in relation to which provision may be made by the regulations.

“(2) An order shall not be made prescribing any penalty.

“(3) An order made with respect to a particular matter has the same consequences and effects as it would have if it were a regulation with respect to that matter.

“(4) Part XII of the Acts Interpretation Act 1901 applies to orders as if, in those sections, references to regulations were references to orders, references to a regulation were references to a provision of an order, references to repeal were references to revocation and references to an Act were references to regulations.

“(5) Orders are not statutory rules within the meaning of the Statutory Rules Publication Act 1903, but subsections 5 (3) to (3c) (inclusive) of that Act apply in relation to orders as they apply in relation to statutory rules.

“(6) For the purposes of the application of subsection 5 (3b) of the Statutory Rules Publication Act 1903 in accordance with subsection (5) of this section, the reference to the Minister referred to in the first-mentioned subsection shall be taken to be a reference to the Minister administering this Act.”.

Schedule

17. The Principal Act is amended by adding at the end the Schedule set out in the Schedule to this Act.

——————

SCHEDULE Section 17

SCHEDULE TO BE ADDED AT THE END OF THE FISHERIES ACT 1952

“SCHEDULE Section 4

TREATY ON FISHERIES

BETWEEN THE GOVERNMENTS OF CERTAIN PACIFIC ISLAND STATES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA

The Governments of the Pacific Island States party to this Treaty and the Government of the United States of America:

ACKNOWLEDGING that in accordance with international law, coastal States have sovereign rights for the purposes of exploring and exploiting, conserving and managing the fisheries resources of their exclusive economic zones or fisheries zones;

RECOGNISING the strong dependence of the Pacific Island parties on fisheries resources and the importance of the continued abundance of those resources;

BEARING IN MIND that some species of fish are found within and beyond the jurisdiction of any of the parties and range throughout a broad region; and

DESIRING to maximize benefits flowing from the development of the fisheries resources within the exclusive economic zones or fisheries zones of the Pacific Island parties;

HAVE AGREED AS FOLLOWS:

ARTICLE 1

DEFINITIONS AND INTERPRETATION

1.1 In this Treaty:

(a) “Administrator” means that person or organisation designated by the Pacific Island parties to act as such on their behalf pursuant to this Treaty and notified to the Government of the United States;

(b) “final judgment” means a judgment from which no appeal proceedings have been initiated within sixty days;

(i) searching for, catching, taking or harvesting fish;

(ii) attempting to search for, catch, take or harvest fish;

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

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

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

(vi) aircraft use, relating to the activities described in this paragraph except for flights in emergencies involving the health or safety of crew members or the safety of a vessel;

(d) “fishing vessel of the United States” or “vessel” means any boat, ship or other craft which is used for, equipped to be used for, or of a type normally used for commercial fishing, which is documented under the laws of the United States;

(e) “Licensing Area” means all waters in the Treaty Area except for:

(i) waters subject to the jurisdiction of the United States in accordance with international law; and

SCHEDULE—continued

(ii) waters closed to fishing by fishing vessels of the United States in accordance with Annex I;

(f) “operator” means any person who is in charge of, directs or controls a vessel, including the owner, charterer and master;

(g) “Pacific Island party” means a Pacific Island State party to this Treaty and “Pacific Island parties” means all such States from time to time;

(h) “Pacific Island State” means a party to the South Pacific Forum Fisheries Agency Convention, 1979;

(i) “party” means a State party to this Treaty, and “parties” means all such States, from time to time;

(j) “this Treaty” means this Treaty, its Annexes and Schedules; and

(k) “Treaty Area” means all waters north of 60 degrees South latitude and east of 90 degrees East longitude, subject to the fisheries jurisdiction of Pacific Island parties, and all other waters within rhumb lines connecting the following geographic co-ordinates, designated for the purposes of this Treaty, except for waters subject to the jurisdiction in accordance with international law of a State which is not a party to this Treaty:

2°35’39”S	141°00’00”E
1°01’35”N	140°48’35”E
1°01’35”N	129°30’00”E
10°00’00”N	129°30’00”E
14°00’00”N	140°00’00”E
14°00’00”N	142°00’00”E
12°30’00”N	142°00’00”E
12°30’00”N	158°00’00”E
15°00’00”N	158°00’00”E
15°00’00”N	165°00’00”E
18°00’00”N	165°00’00”E
18°00’00”N	174°00’00”E
12°00’00”N	174°00’00”E
12°00’00”N	176°00’00”E
5°00’00”N	176°00’00”E
1°00’00”N	180°00’00”
1°00’00”N	164°00’00”W
8°00’00”N	164°00’00”W
8°00’00”N	158°00’00”W
0°00’00”	150°00’00”W
6°00’00”S	150°00’00”W
6°00’00”S	146°00’00”W
12°00’00”S	146°00’00”W
26°00’00”S	157°00’00”W
26°00’00”S	174°00’00”W
40°00’00”S	174°00’00”W
40°00’00”S	171°00’00”W
46°00’00”S	171°00’00”W
55°00’00”S	180°00’00”
59°00’00”S	160°00’00”E
59°00’00”S	152°00’00”E

and north along the 152 degrees of East longitude until intersecting the Australian 200 nautical mile limit.

1.2 Nothing in this Treaty shall be deemed to affect the applicability of any provision of a Pacific Island party’s law which is not identified or otherwise described in this Treaty.

SCHEDULE—continued

ARTICLE 2

BROADER CO-OPERATION

2.1 The Government of the United States shall, as appropriate, co-operate with the Pacific Island parties through the provision of technical and economic support to assist the Pacific Island parties to achieve the objective of maximizing benefits from the development of their fisheries resources.

2.2 The Government of the United States shall, as appropriate, promote the maximization of benefits generated for the Pacific Island parties from the operations of fishing vessels of the United Sates licensed pursuant to this Treaty, including:

(a) the use of canning, transshipment, slipping and repair facilities located in the Pacific Island parties;

(b) the purchase of equipment and supplies, including fuel supplies, from suppliers located in the Pacific Island parties; and

ARTICLE 3

ACCESS TO THE TREATY AREA

3.1 Fishing vessels of the United States shall be permitted to engage in fishing in the Licensing Area in accordance with the terms and conditions referred to in Annex I and licences issued in accordance with the procedures set out in Annex II.

3.2 It shall be a condition of any licence issued pursuant to this Treaty that the vessel in respect of which the licence is issued is operated in accordance with the requirements of Annex I. No fishing vessel of the United States shall be used for fishing in the Licensing Area without a licence issued in accordance with Annex II or in waters closed to fishing pursuant to Annex I, except in accordance with paragraph 3 of this Article, or unless the vessel is used for fishing albacore tuna by the trolling method in high seas areas of the Treaty Area.

3.3 A Pacific Island party may permit fishing vessels of the United States to engage in fishing in waters under the jurisdiction of that party which are:

(a) within the Treaty Area but outside the Licensing Area; or

(b) except for purse seine vessels, within the Licensing Area but otherwise than in accordance with the terms and conditions referred to in Annex I,

in accordance with such terms and conditions as may be agreed from time to time with the owners of the said vessels or their representatives. In such a case, if the Pacific Island party gives notice to the Government of the United States of such arrangements, and if the Government of the United States concurs, the procedures of Articles 4 and 5.6 shall be applicable to such arrangements.

ARTICLE 4

FLAG STATE RESPONSIBILITY

4.1 The Government of the United States shall enforce the provisions of this Treaty and licences issued thereunder. The Government of the United States shall take the necessary steps to ensure that nationals and fishing vessels of the United States refrain from fishing in the Licensing Area and in waters closed to fishing pursuant to Annex I, except as authorised in accordance with Article 3.

4.2 The Government of the United States shall, at the request of the Government of a Pacific Island party, take all reasonable measures to assist that party in the investigation

SCHEDULE—continued

of an alleged breach of this Treaty by a fishing vessel of the United States and promptly communicate all the requested information to that party.

4.3 The Government of the United States shall ensure that:

(a) each fishing vessel of the United States licensed pursuant to this Treaty is fully insured against all risks and liabilities;

(b) all measures are taken to facilitate:

(i) any claim arising out of the activities of a fishing vessel of the United States, including a claim for the total market value of any fish taken from the Licensing Area without authorisation pursuant to this Treaty, and the prompt settlement of that claim;

(ii) the service of legal process by or on behalf of a national or the Government of a Pacific Island party in any action arising out of the activities of a fishing vessel of the United States;

(iii) the prompt and full adjudication in the United States of any claim made pursuant to this Treaty;

(iv) the prompt and full satisfaction of any final judgment or other final determination made pursuant to this Treaty; and

(v) the provision of a reasonable level of financial assurances, if, after consultation with the Government of the United States, all Pacific Island parties agree that the collection of any civil or criminal judgment or judgments or determination or determinations made pursuant to this Treaty has become a serious enforcement problem;

(c) an amount equivalent to the total value of any forfeiture, fine, penalty or other amount collected by the Government of the United States incurred as a result of any actions, judicial or otherwise, taken pursuant to this Article is paid to the Administrator as soon as possible following the date that the amount is collected.

4.4 The Government of the United States shall, at the request of the Government of a Pacific Island party, fully investigate any alleged infringement of this Treaty involving a vessel of the Unites States, and report as soon as practicable and in any case within two months to that Government on that investigation and on any action taken or proposed to be taken by the Government of the United States in relation to the alleged infringement.

4.5 In the event that a report provided pursuant to paragraph 4 of this Article shows that a fishing vessel of the United States:

(a) while fishing in the Licensing Area did not have a licence to fish in the Licensing Area, except in accordance with paragraph 2 of Article 3; or

(b) was involved in any incident in which an authorised officer or observer was allegedly assaulted with resultant bodily harm, physically threatened, forcefully resisted, refused boarding or subjected to physical intimidation or physical interference in the performance of his or her duties as authorised pursuant to this Treaty; or

that there was probable cause to believe that a fishing vessel of the United States:

(c) was used for fishing in waters closed to fishing pursuant to Annex I, except as authorised in accordance with paragraph 3 of Article 3;

(d) was used for fishing in any Limited Area as described in Annex I, except as authorised in accordance with that Annex;

(e) was used for fishing by any method other than the purse seine method, except in accordance with paragraph 2 of Article 3;

SCHEDULE—continued

(f) was used for directed fishing for Southern Bluefin Tuna or for fishing for any kinds of fish other than tunas, except that other kinds of fish may be caught as an incidental by-catch;

(g) used an aircraft for fishing which was not identified on a form provided pursuant to Schedule 1 of Annex II in relation to that vessel; or

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

and that such vessel has not submitted to the jurisdiction of the Pacific Island party concerned, the Government of the United States shall, at the request of that party, take all necessary measures to ensure that the vessel concerned leaves the Licensing Area and waters closed to fishing pursuant to Annex I immediately and does not return except for the purpose of submitting to the jurisdiction of the party, or after action has been taken by the Government of the United States to the satisfaction of that party.

4.6 In the event that a report provided pursuant to paragraph 4 of this Article shows that a fishing vessel of the United States has been involved in a probable infringement of this Treaty, including an infringement of an applicable national law as identified in Schedule 1 of Annex I, other than an infringement of the kind described in paragraph 5 of this Article, and that the vessel has not submitted to the jurisdiction of the Pacific Island party concerned, the Government of the United States shall, at the request of that party, take all necessary measures to ensure that the vessel concerned:

(a) submits to the jurisdiction of that party; or

(b) is penalised by the Government of the United States at such level as may be provided for like violations in United States law relating to foreign fishing vessels licensed to fish in the exclusive economic zone of the United States but not to exceed the sum of US$250,000.

4.7 Financial assurances provided pursuant to this Treaty may be drawn against by any Pacific Island party to satisfy any civil or criminal judgment or other determination in favour of a national or the Government of a Pacific Island party.

4.8 Prior to instituting any legal proceedings pursuant to this Article concerning an alleged infringement of this Treaty in waters within the jurisdiction, for any purpose, as recognised by international law, of a Pacific Island party, the Government of the United States shall notify the Government of that Pacific Island party that such proceedings shall be instituted. Such notice shall include a statement of the facts believed to show an infringement of this Treaty and the nature of the proposed proceedings, including the proposed charges and the proposed penalties to be sought. The Government of the United States shall not institute such proceedings if the Government of that Pacific Island party objects within 30 days of the effective date of such notice.

4.9 The Government of the United States shall ensure that an agent is appointed and maintained in accordance with the requirements of subparagraphs (a) and (b) of this paragraph, with authority to receive and respond to any legal process issued by a Pacific Island party in respect of an operator of any fishing vessel of the United States (identified in the form set out in Schedule 1 of Annex II) and shall notify the Administrator of the name and address of such agent, who:

(a) shall be located in Port Moresby for the purpose of receiving and responding to any legal process issued in accordance with this Article; and

(b) shall, within 21 days of notification that legal process has been issued in accordance with this Article, travel to any Pacific Island party, at no expense to that party, for the purpose of receiving and responding to that process.

SCHEDULE—continued

ARTICLE 5

COMPLIANCE POWERS

5.1 It is recognised that the respective Pacific Island parties may enforce the provisions of this Treaty and licences issued thereunder, including arrangements made pursuant to Artricle 3.3 and licences issued thereunder, in waters under their respective jurisdictions.

5.2 The Governments of the Pacific Island parties shall promptly notify the Government of the United States of any arrest of a fishing vessel of the United States or any of its crew and of any charges filed or proceedings instituted following the arrest, in accordance with this Article.

5.3 Fishing vessels of the United States and their crews arrested for breach of this Treaty shall be promptly released upon the posting of a reasonable bond or other security. Penalties applied in accordance with this Treaty for fishing violations shall not be unreasonable in relation to the offence and shall not include imprisonment or corporal punishment.

5.4 The Government of the United States shall not apply sanctions of any kind including deductions, however effected, from any amounts which might otherwise have been paid to any Pacific Island party, and restrictions on trade with any Pacific Island party, as a result of any enforcement measure taken by a Pacific Island party in accordance with this Article.

5.5 The Governments of the parties shall adopt and inform the other parties of such provisions in their national laws as may be necessary to give effect to this Treaty.

5.6 Where legal proceedings have been instituted by the Government of the United States pursuant to Article 4, no Pacific Island party shall proceed with any legal action in respect of the same alleged infringement as long as such proceedings are maintained. Where penalties are levied or proceedings are otherwise concluded by the Government of the United States pursuant to Article 4, the Pacific Island party which has received notice of such final determination shall withdraw any legal charges or proceedings in respect of the same alleged infringement.

5.7 During any period in which a party is investigating any infringement of this Treaty involving a fishing vessel of the United States, being an infringement which is alleged to have taken place in waters within the jurisdiction, for any purpose, as recognised by international law, of a Pacific Island party, and if that Pacific Island party so notifies the other parties, any licence issued in respect of that vessel shall, for the purposes of Article 3, be deemed not to authorise fishing in the waters of that Pacific Island party.

5.8 If full payment of any amount due as a result of a final judgment or other final determination deriving from an occurrence in waters within the jurisdiction, for any purpose, of a Pacific Island party, is not made to that party within sixty (60) days, the licence for the vessel involved shall be suspended at the request of that party and that vessel shall not be authorised to fish in the Licensing Area until that amount is paid to that party.

ARTICLE 6

CONSULTATIONS AND DISPUTE SETTLEMENT

6.1 At the request of any party, consultations shall be held with any other party within sixty (60) days of the date of receipt of the request. All other parties shall be notified of the request for consultations and any party shall be permitted to participate in such consultations.

SCHEDULE—continued

6.2 Any dispute between the Government of the United States and the Government of one or more Pacific Island parties in relation to or arising out of this Treaty may be submitted by any such party to an arbitral tribunal for settlement by arbitration no earlier than one hundred and twenty (120) days following a request for consultations under Article 6.1. Unless the parties to the dispute agree otherwise, the Arbitration Rules of the United Nations Commission on International Trade Law as at present in force, shall be used.

6.3 The Government or Governments of the Pacific Island party or parties to the dispute shall appoint one arbitrator and the Government of the United States shall appoint one arbitrator. The third arbitrator, who shall act as presiding arbitrator of the tribunal, shall be appointed by agreement of the parties to the dispute. In the event of a failure to appoint any arbitrator within the time period provided in the Rules, the arbitrator shall be appointed by the Secretary-General of the Permanent Court of Arbitration at The Hague.

6.4 Unless the parties to the dispute agree otherwise, the place or arbitration shall be Port Moresby. The tribunal may hold meetings at such other place or places within the territory of a Pacific Island party or elsewhere within the Pacific Islands region as it may determine. An award or other decision shall be final and binding on the parties to the arbitration, and, unless the parties agree otherwise, shall be made public. The parties shall promptly carry out any award or other decision of the tribunal.

6.5 The fees and expenses of the tribunal shall be paid half by the Government or Governments of the Pacific Island party or parties to the arbitration and half by the Government of the United States, unless the parties to the arbitration agree otherwise.

ARTICLE 7

REVIEW OF THE TREATY

7. The parties shall meet once each year for the purpose of reviewing the operation of this Treaty.

ARTICLE 8

AMENDMENT OF THE TREATY

8. The following procedures shall apply to the adoption and entry into force of any amendment to this Treaty.

(a) Any party may propose amendments to this Treaty.

(b) A proposed amendment shall be notified to the depositary not less than forty five (45) days before the meeting at which the proposed amendment will be considered.

(d) The parties shall consider proposed amendments to this Treaty at the annual meeting described in Article 7, or at any other time that may be agreed by all parties.

(e) Any amendment to this Treaty shall be adopted by the approval of all the parties, and shall enter into force upon receipt by the depositary of instruments of ratification, acceptance or approval by the parties.

(f) The depositary shall promptly notify all parties of the entry into force of the amendment.

SCHEDULE—continued

ARTICLE 9

AMENDMENT OF ANNEXES

9. The following procedures may apply to the adoption and entry into force of any amendment to an Annex of this Treaty, at the request of the party proposing the amendment, in lieu of the procedure set out in Article 8, unless otherwise provided in the Annex.

(a) Any party may propose amendment to an Annex of this Treaty at any time by notifying such proposal to the depositary, which shall promptly notify all parties of the proposed amendment.

(b) A party approving a proposed amendment to an Annex shall notify its acceptance to the depositary, which shall promptly notify all the parties of each acceptance. Upon receipt by the depositary of notices of acceptance from all parties, such amendment shall be incorporated in the appropriate Annex and shall have effect from that date, or from such other date as may be specified in such amendment. The depositary shall promptly notify all parties of the adoption of the amendment and its effective date.

ARTICLE 10

NOTIFICATION

10.1 The Administrator and each party shall notify the depositary of their current addresses for the receipt of notices given pursuant to this Treaty, and the depositary shall notify the Administrator and each of the parties of such addresses or any changes thereof. Unless otherwise specified in this Treaty, any notice given in accordance with this Treaty shall be in writing and may be served by hand or sent by telex or, where either method cannot readily be effected, by registered airmail to the address of the party or the Administrator as currently listed with the depositary.

10.2 Delivery by hand shall be effective when made. Delivery by telex shall be deemed to be effective on the business day following the day when the “answer back” appears on the sender’s telex machine. Delivery by registered airmail shall be deemed to be effective twenty-one (21) days after posting.

ARTICLE 11

DEPOSITARY

11. The depositary for this Treaty shall be the Government of Papua New Guinea.

ARTICLE 12

FINAL CLAUSES

12.1 This Treaty shall be open for signature by the Governments of all the Pacific Island States and the Government of the United States of America.

12.2 This Treaty is subject to ratification by the States referred to in paragraph 1 of this Article. The instruments of ratification shall be deposited with the depositary.

12.3 This Treaty shall remain open for accession by States referred to in paragraph 1 of this Article. The instruments of accession shall be deposited with the depositary.

12.4 This Treaty shall enter into force upon receipt by the depositary of instruments of ratification by the Government of the United States and by the Governments of ten Pacific Island States which shall include the Federated States of Micronesia, the Republic of Kiribati and Papua New Guinea.

SCHEDULE—continued

12.5 This Treaty shall enter into force for any State ratifying or acceding after the entry into force of this Treaty on the thirtieth day after the date on which its instrument of ratification or accession is received by the depositary.

12.6 This Treaty shall cease to have effect at the expiry of one year following the receipt by the depositary of an instrument signifying withdrawal or denunciation by the United States, any of the Pacific Island States named in Article 12.4, or such number of Pacific Island States as would leave fewer than ten such States as parties.

12.7 This Treaty shall cease to have effect for a party at the expiry of the sixth month following the receipt by the depositary of an instrument signifying withdrawal or denunciation by that party, except that where this Treaty would cease to have effect under the last preceding paragraph as the result of the receipt of the said instrument, it shall cease to have effect for that party in the manner provided in the last preceding paragraph.

12.8 Any licence in force pursuant to this Treaty shall not cease to have effect as a result of this Treaty ceasing to have effect either generally or for any party, and Articles 1, 3, 4 and 5 shall be regarded as continuing in force between the United States and the Pacific Island State party in respect of such licence until such licence expires in accordance with its terms.

12.9 No reservations may be made to this Treaty.

12.10 Paragraph 9 of this Article does not preclude a State, when signing, ratifying or acceding to this Treaty, from making declarations or statements, provided that such declarations or statements do not purport to exclude or modify the legal effect of the provisions of this Treaty in their application to that State.

DONE at Port Moresby on the second day of April, 1987.

REPRESENTATIVES OF THE GOVERNMENTS OF:

John Kerin Edward Wolfe

AUSTRALIA John Negroponte

UNITED STATES OF AMERICA

Pupuke Ropati

COOK ISLANDS

Andon Amaraich

FEDERATED STATES OF MICRONESIA

Robin Yarrow

FIJI

Teewe Arobati

REPUBLIC OF KIRIBATI

Charles Dominick

REPUBLIC OF THE MARSHALL ISLANDS

Hammer De Roburt

REPUBLIC OF NAURU

Gerald McGhie

NEW ZEALAND

NIUE

REPUBLIC OF PALAU

SCHEDULE—continued

Edward Diro

PAPUA NEW GUINEA

Sir Peter Kenilorea

SOLOMON ISLANDS

KINGDOM OF TONGA

Lale Seluka

TUVALU

REPUBLIC OF VANUATU

Fuimaono Mimio

WESTERN SAMOA

ANNEX I

PART 1

INTRODUCTORY

1. In this Annex:

(a) “applicable national law” means any provision of a law, however described, of a Pacific Island party which governs the fishing activities of foreign fishing vessels, being a law identified in Schedule 1, and which is not inconsistent with the requirements of this Treaty and shall be taken to exclude any provision which imposes a requirement which is also imposed by this Treaty;

(b) “Closed Area” means an area of a Pacific Island party as described in Schedule 2;

(d) “the vessel” means the vessel in respect of which a licence is issued.

2. Schedule 1 may be amended from time to time by the inclusion by any Pacific Island party of any applicable national law and, for the purposes of this Treaty, except as provided in this paragraph, the amendment shall take effect from the date that the amended Schedule has been notified to the Government of the United States. For the purposes of any obligation on the United States pursuant to paragraphs 4 and 5 of Article 4, the amendment shall take effect sixty (60) days from the date that the amended Schedule has been notified to the Government of the United States. The Government of the Pacific Island party shall use its best endeavours to provide advance notice to the Government of the United States of the amendment.

3. Nothing in this Annex and its Schedules, nor acts or activities taking place thereunder, shall constitute recognition of the claims or the positions of any of the parties concerning the legal status and extent of waters and zones claimed by any party. In the claimed waters and zones, the freedoms of navigation and overflight and other uses of the sea related to such freedoms are to be exercised in accordance with international law.

PART 2

COMPLIANCE WITH APPLICABLE NATIONAL LAWS

4. The operator of the vessel shall comply with each of the applicable national laws, and shall be responsible for the compliance by the vessel and its crew with each of the applicable national laws, and the vessel shall be operated in accordance with those laws.

SCHEDULE—continued

PART 3

PROHIBITIONS

5. The vessel shall not be used for directed fishing for Southern Bluefin Tuna, or for fishing for any kinds of fish other than tunas, except that other kinds of fish may be caught as an incidental by-catch.

6. The vessel shall not be used for fishing by any method, except the purse seine method.

7. The vessel shall not be used for fishing in any Closed Area.

8. Except for circumstances involving force majeure and other emergencies involving the health or safety of crew members or the safety of the vessel, no aircraft may be used in association with the fishing activities of the vessel unless it is identified in item 6 or 7 of Schedule 1 of Annex II.

9. The vessel shall not be used for fishing in any Limited Area except in accordance with the requirements set out in Schedule 3, which are applicable to that Limited Area.

PART 4

REPORTING

10. Information relating to the position of and catch on board the vessel, as described in Part 1 of Schedule 4, shall be provided by telex to the Administrator at the following times:

(a) before departure from port for the purpose of beginning a fishing trip in the Licensing Area;

(b) each Wednesday while within the Licensing Area or a Closed Area; and

11. Information relating to the position of and catch on board the vessel, as described in Part 2 of Schedule 4, shall be provided to each Pacific Island party in the manner notified to the Government of the United States by that party as follows:

(a) at the time of entry into and of departure from waters which are, for any purpose, subject to the jurisdiction of the Pacific Island party;

(b) at least 24 hours prior to the estimated time of entry into any port of that party; and

12. At the end of each day that the vessel is in the Licensing Area, an entry or entries for that day shall be completed on the catch report form as set out in Schedule 5, in accordance with the requirements of that form, and such forms shall be posted by registered airmail to the Administrator within fourteen (14) days following the date of the next entry into a port for the purpose of unloading its fish catch.

13. Immediately following the unloading of any fish from the vessel, a report shall be completed in the form set out in Schedule 6 and shall be posted by registered airmail to the Administrator within fourteen (14) days following the date of the completion of that unloading operation, or, in the case of unloading by transshipment, within fourteen (14) days following unloading of that transshipment at the processing site.

SCHEDULE—continued

PART 5

ENFORCEMENT

14. The master and each member of the crew of the vessel shall immediately comply with every instruction and direction given by an authorised and identified officer of a Pacific Island party, including to stop, to move to a specified location, and to facilitate safe boarding and inspection of the vessel, gear, equipment, records, fish and fish products. Such boarding and inspection shall be conducted as much as possible in a manner so as not to interfere unduly with the lawful operation of the vessel. The operator and each member of the crew shall facilitate and assist in any action by an authorised officer of a Pacific Island party and shall not assault, obstruct, resist, delay, refuse boarding to, intimidate or interfere with an authorised officer in the performance of his or her duties.

15. The international distress frequency, 2.182 MHz, and 156.8 MHz (Channel 16, VHF) shall be monitored continuously from the vessel for the purpose of facilitating communication with the surveillance and enforcement authorities of the parties.

16. The international radio call sign of the vessel shall be painted in white on a black background, or in black on a white background, in the following manner:

(a) amidships on both sides immediately below the gunwale, and on a horizontal plane on the superstructure, in letters and figures 20 centimetres apart, with each letter and figure being at least one metre high and 50 centimetres wide and with each line at least 12.5 centimetres wide;

(b) if a helicopter is being carried, on the body of the helicopter in a place clearly visible from sea level, in letters and figures five centimetres apart, with each letter and figure being at least 25 centimetres high, 10 centimetres wide and with each line being at least 2.5 centimetres wide; and

(c) on any other equipment being carried by and intended to be separated from the vessel during normal fishing operations, in letters and figures clearly legible to the naked eye;

and at all times while the vessel is within the Licensing Area or a Closed Area, all parts of these markings shall be clear, distinct and uncovered.

17. The licence shall be carried on board the vessel and produced at the request of an authorised enforcement official of any of the parties. Prior to receipt of the licence, the correct citation of the licence number shall satisfy this requirement.

PART 6

OBSERVERS

18. The operator and each member of the crew of the vessel shall allow and assist any person identified as an observer by the Pacific Island parties to:

(a) board the vessel for scientific, compliance, monitoring and other functions at the point and time notified by the Pacific Island parties to the Government of the United States;

(b) have full access to and the use of facilities and equipment on board the vessel which the observer may determine is necessary to carry out his or her duties; have full access to the bridge, fish on board and areas which may be used to hold, process, weigh and store fish; remove samples; have full access to the vessel’s records, including its log and documentation for the purpose of inspection and copying; and gather any other information relating to fisheries in the Licensing Area; without interfering unduly with the lawful operation of the vessel;

SCHEDULE—continued

(d) carry out his or her duties safely;

and no operator or crew member of the vessel shall assault, obstruct, resist, delay, refuse boarding to, intimidate or interfere with an observer in the performance of his or her duties.

19. The operator shall provide the observer, while on board the vessel, at no expense to the Pacific Island parties, with food, accommodation and medical facilities of such reasonable standard as may be acceptable to the Pacific Island party whose representative is serving as the observer.

20. Any operator of the vessel from which any fish taken in the Licensing Area is unloaded shall allow, or arrange for, and assist any person authorised for this purpose by the Pacific Island parties to have full access to any place where such fish is unloaded, to remove samples and to gather any other information relating to fisheries in the Licensing Area.

21. An observer programme shall be conducted in accordance with this Treaty and provisions that may be agreed from time to time.

PART 7

MISCELLANEOUS REQUIREMENTS

22. At all times while the vessel is in a Closed Area, the fishing gear of the vessel shall be stowed in such a manner as not to be readily available for fishing. In particular, the boom shall be lowered as far as possible so that the vessel cannot be used for fishing but so that the skiff is accessible for use in emergency situations; the helicopter, if any, shall be tied down; and launches shall be secured.

23. The vessel shall be operated in such a way that the activities of traditional and locally based fishermen and fishing vessels are not disrupted or in any other way adversely affected.

24. Any information required to be recorded, or to be notified, communicated or reported pursuant to a requirement of this Treaty shall be true, complete and correct. Any change in circumstances which has the effect of rendering any such information false, incomplete or misleading shall be notified to the Administrator immediately.

—————

SCHEDULE 1

APPLICABLE NATIONAL LAWS

The following laws and any regulations or other instruments having the force of law which have been implemented pursuant to those laws, as amended at the time this Treaty enters into force, shall be considered as applicable national laws for the purposes of this Treaty.

Australia

Antarctic Marine Living Resources Conservation Act, 1981

Continental Shelf (Living Natural Resources) Act, 1968

Continental Shelf (Living Natural Resources) Regulations

Fisheries Act, 1952

Fisheries Regulations

Torres Strait Fisheries Act, 1984

Whale Protection Act, 1980

SCHEDULE—continued

Cook Islands

Cook Islands Commercial Fishing Regulations, 1951

Exclusive Economic Zone (Foreign Fishing Craft) Regulations, 1979

Fisheries Protection Act, 1976

Fishing Ordinance, 1950

Territorial Sea and Exclusive Economic Zone Act, 1977

Federated States of Micronesia

Titles 18 and 24 of the Code of the Federated States of Micronesia, as amended by Public Law Nos. 2-28, 2-31, 3-9, 3-10, 3-34, and 3-80

Fiji

Fisheries Act, 1942

Fisheries Ordinance (Cap 135)

Fisheries Regulations (Cap 135)

Marine Spaces Act, 1978

Marine Spaces (Foreign Fishing Vessels) Regulations, 1979

Kiribati

Fisheries Ordinance, 1979

Fisheries (Amendment) Act, 1984

Marine Zones (Declaration) Act, 1983

Marshall Islands

Marine Resources Jurisdiction Act, 1978

Marine Zones (Declaration) Act, 1984

Nauru

Interpretation Act, 1971

Interpretation Act, 1975

Marine Resources Act, 1978

New Zealand

Antarctic Marine Living Resources Act, 1981

Continental Shelf Act, 1964

Exclusive Economic Zone (Foreign Fishing Craft) Regulations, 1978

Fisheries Act, 1983

Marine Mammals Protection Act, 1978

Territorial Sea and Exclusive Economic Zone Act, 1977

Tokelau (Territorial Sea and Exclusive Economic Zone Act), 1977

Niue

Territorial Sea and Exclusive Economic Zone Act, 1978

Palau

Palau National Code, Title 27

Papua New Guinea

Fisheries Act (Cap 214)

Fisheries Regulations (Cap 214)

Fisheries (Torres Strait Protected Zone) Act, 1984

Tuna Resources Management (National Seas) Act (Cap 224)

Whaling Act (Cap 225)

SCHEDULE—continued

Solomon Islands

Delimitation of Marine Waters Act, 1978

Fisheries Act, 1972

Fisheries Limits Act, 1977

Fisheries Regulations, 1972

Fisheries (Foreign Fishing Vessels) Regulations, 1981

Tonga

Fisheries Protection Act, 1973

Fisheries Regulation Act, 1923

Whaling Industry (Amendment) Act, 1979

Tuvalu

Fisheries Act (Cap 45)

Foreign Fishing Vessel Regulations, 1982

Fisheries (Foreign Fishing Vessel) (Amendment) Regulations, 1984

Marine Zones (Declaration) Act, 1983

Vanuatu

Fisheries Act, 1982

Fisheries Regulations, 1983

Maritime Zones Act, 1981

Western Samoa

Exclusive Economic Zone Act, 1977

Fisheries Protection Act, 1972

Territorial Sea Act, 1971

—————

SCHEDULE 2

CLOSED AREAS

Australia. All waters within the seaward boundary of the Australian Fishing Zone (AFZ) west of a line connecting the point of intersection of the outer limit of the AFZ by the parallel of latitude 25°30’ South with the point of intersection of the meridian of longitude 151° East by the outer limit of the AFZ and all waters south of the parallel of latitude 25°30’ South.

Cook Islands. Territorial Sea.

Federated States of Micronesia. Three nautical mile territorial sea and nine nautical mile exclusive fishery zone and on all named banks and reefs as depicted on the following charts:

DMAHTC NO 81019 (2nd. ed., Mar. 1945; revised 7/17/72. corrected through NM 3/78 of June 21, 1978).

DMAHTC NO 81023 (3rd. ed., Aug. 7, 1976).

DMAHTC NO 81002 (4th. ed., Jan. 26, 1980; corrected through NM 4/80).

Fiji. Internal waters, archipelagic waters and territorial seas of Fiji and Rotuma and its Dependencies.

Kiribati. Within archipelagic waters as established in accordance with Marine Zones Declaration Act 1983; within 12 nautical miles drawn from the baselines from which the territorial sea is measured; within 2 nautical miles of any anchored fish aggregating device for which notification of its location shall be given by geographical coordinates.

SCHEDULE—continued

Marshall Islands. 12 nautical mile territorial sea and area within two nautical miles of any anchored fish aggregating device for which notification of its location shall be given by geographical coordinates.

Nauru. The territorial waters as defined by Nauru Interpretation Act, 1971, Section 2.

New Zealand. Territorial waters; waters within 6 nautical miles of outer boundary of territorial waters; all waters to west of New Zealand main islands and south of 39° South latitude; all waters to east of New Zealand main islands south of 40° South latitude; and in respect of Tokelau: areas within 12 nautical miles of all island and reef baselines; twelve and one half nautical miles either side of a line joining Atafu and Nukunonu and Faka’ofo; and coordinates as follows:

Atafu: 8°35’10”S, 172°29’30”W

Nukunonu: 9°06’25”S, 171°52’10”W

9°11’30”S, 171°47’00”W

Faka’ofo: 9°22’30”S, 171°16’30”W

Niue, Territorial sea and within 3 nautical miles of Beveridge Reef, Antiope Reef and Haran Reef as depicted by appropriate symbols on NZ 225f (chart showing the territorial sea and exclusive economic zone of Niue pursuant to the Niue Territorial Sea and Exclusive Economic Zone Act of 1978).

Palau. Within 12 nautical miles of all island baselines in the Palau Islands; within a SO nautical mile arc measured from the entrance to Malakal Harbour (7°16’44”N, 134°28’18”E) and extending from where the arc intersects the territorial sea limit to the northeast of Babelthuap Island to the 134° East meridian of longitude, southwest of Angaur Island then due north along the 134° East meridian of longitude to the intersection with the territorial sea limit.

Papua New Guinea. In addition to its territorial sea and internal waters, within the area bounded by the following parallels and meridians—from latitude 0°30’ South to latitude 3°30’ South, and from longitude 149° East to longitude 153” East.

Solomon Islands. All waters within the fishery limits of the Solomon Islands (including internal waters, territorial sea and archipelagic waters) except that part of the fishery limits east and north of the following lines: commencing at a point 161° East, 4°20’ South, then extending due south along 161° to a point 6°30’ South, then by a line extending due east to a point 165° East, then by a line due south to a point 8° South, then by a line due east to a point 169°55’ East.

Tonga. All waters with depths of not more than 1,000 metres, within the area bounded by the fifteenth and twenty third and one half degrees of south latitudes and the one hundred and seventy third and the one hundred and seventy seventh degrees of west longitudes; also within a radius of twelve nautical miles from the islands of Teleki Tonga and Teleki Tokelau.

Tuvalu. Territorial sea and waters within two nautical miles of all named banks, i.e. Macaw, Kosciusko, Rose, Bayonnaise and Hera, in Tuvalu EEZ, as depicted on the chart entitled “Tuvalu Fishery Limits” prepared by the United Kingdom Hydrographic Department, Taunton, January 11, 1981.

Vanuatu. Archipelagic waters and the territorial sea, and internal waters.

Western Samoa. Territorial sea; reefs, banks and areas bounded/enclosed by the following parallels and meridians to the extent such areas are within Western Samoa fisheries jurisdiction:

1. From latitude 12°58’ South to latitude 13°11.5’ South and Longitude 174° 5.5’ West to longitude 174° 26’ West.

SCHEDULE—continued

2. From latitude 12°12’ South to latitude 12° 38.5’ South and longitude 173° 47’ West to longitude 174° 25’ West.

3. From latitude 13° 7’ South to latitude 13° 19’ South and longitude 172° 59’ West to longitude 173° 38.5’ West.

4. From latitude 14° 51’ South to latitude 15° 3.4’ South and longitude 172° 10.7’ West to longitude 172° 19.1’ West.

5. From latitude 14° 20.5’ South to latitude 14° 28’ South and longitude 171° 8’ West to longitude 171° 17’ West.

and within 2 nautical miles of any anchored fish aggregating device within the EEZ for which notification of its location shall be given by geographical coordinates.

——————————

Only the Closed Areas, as described above, of Pacific Island States which are parties to this Treaty shall be applicable under the terms of this Treaty.

———

SCHEDULE 3

LIMITED AREAS

Solomon Islands

1. The Solomon Islands Limited Area is all of the Licensing Area within the fishery limits of Solomon Islands as described in the Fishery Limits Act 1977 of Solomon Islands.

2. “Fishing day” means any day or part of a day of the week in which a vessel is used for fishing in the Solomon Islands Limited Area.

3. There shall be no fishing in the Solomon Islands Limited Area after the expiry of the five hundredth fishing day from the earliest date on which any Licensing Period takes effect in any given year.

———

SCHEDULE 4

REPORTING DETAILS

PART 1

LICENSING AREA REPORTS TO THE ADMINISTRATOR

(a) Port departure and entry into port for unloading

(1) report type (LBEG for port departure to begin fishing and LFIN for port entry for unloading)

(2) date

(3) call sign

(4) port name

(5) catch on board by species (in short tons)

as: LBEG (or LFIN)/ddmmyy/CALL SIGN/PORT/SJ xxx YF yyy OTH zzz

(b) Weekly reports

(1) report type (WEEK)

(2) date

(3) call sign

SCHEDULE—continued

(4) position (to one minute of arc)

(5) catch on board by species

as: WEEK/ddmmyy/CALL SIGN/LA 1111/LO 11111/SJ xxx YF yyy OTH zzz

PART 2

REPORTS TO NATIONAL AUTHORITIES

(a) Zone entry and exit

(1) report type (ZENT for entry and ZEXT for exit)

(2) date

(3) call sign

(4) position (to one minute of arc)

(5) catch on board by species

as: ZENT (or ZEXT)/ddmmyy/CALL SIGN/TIME/LA 1111/LO 11111/ SJ xxx YF yyy OTH zzz

(b) Port entry reports

(1) report type (PENT)

(2) date

(3) call sign

(4) estimated time of entry into port (GMT)

(5) port name

as: PENT/ddmmyy/CALL SIGN/TIME/PORT NAME

PART 3

OTHER NATIONAL REPORTING REQUIREMENTS

1. Australia

(a) Report of position each two days while within the Australian Fishing Zone;

(b) 24 hours notice of intention to enter the Australian Fishing Zone; and

2. Fiji

(a) While in Fiji fisheries waters, daily position reporting of the name, call sign, and country of registration of the craft, and its position at that specified time; and

(b) While in Fiji fisheries waters, weekly report of catch by species.

3. Kiribati

While in the Kiribati exclusive economic zone, report on entry into or exit from Closed Areas.

4. New Zealand

(a) While in the New Zealand exclusive economic zone, notification of daily noon positions, to be received no later than noon on the following day;

(b) Notice of catch on board the vessel at the time of entry into the New Zealand exclusive economic zone;

(c) A weekly report of catch taken in the New Zealand exclusive economic zone to cover the period 0001 hours on a Monday to 2400 hours on the following Sunday and to be received by noon on the following Tuesday; and

(d) 24 hours notice of intention to enter the New Zealand exclusive economic zone.

SCHEDULE—continued

5. Solomon Islands

Report on:

(a) Expected vessel position, date and time of entry at least 24 hours before entry into the Solomon Islands Fishery Limits;

(b) Entry to or exit from Solomon Islands Limited Area together with the catch on board by weight and volume; and

(c) A weekly report of catch taken and fishing days in the Solomon Islands exclusive economic zone to cover the period 0001 hours on a Monday to 2400 hours on the following Sunday and to be received by noon on the following Tuesday.

6. Tonga

While in the Tonga exclusive economic zone, daily position report by radio or telex.

7. Tuvalu

(a) Report not less than 24 hours before entry into the Tuvalu fishery limits on:

(i) the name, call sign and country of registration of the vessel;

(ii) the licence number;

(iii) position on entry; and

(iv) catch by species.

SCHEDULE—continued

———

SCHEDULE—continued

SCHEDULE 6

PURSE SEINE UNLOADING LOGSHEET

Vessel Name..................... Radio Call Sign or Regional Register No.................

(1) Port..........................................................................................................................

or, If at sea, position: Lat.............................. Long ......................................................

(2) Dates

(a) At unloading point

Arrival................................. Departure........................................

(b) At unloading

Commencement .................. Completion.....................................

(3) Partial or complete unloading.................................................................................

(4) Unloading to............................................................................................................

(5) (a) Carrier Vessel Name..........................................................................................

and Radio call sign or regional Register No............................................................

(b) Name and address of company accepting fish...................................................

(6) Destination of fish...................................................................................................

.......................................................................................................................................

(7) Quantity unloaded

	Yellowfin	Skipjack	Bigeye	Marlin	Other	Unit of Measurement
Accepted	.............	.............	.............	.............	.............	.............
Rejected	.............	.............	.............	.............	.............	.............
Signatures
.................................................... Vessel Master			.................................................... Receiving Agent

ANNEX II

1. For the purposes of this Annex:

(a) “Licensing Period” means the period of validity of licences issued in accordance with this Treaty.

2. The Government of the United States shall make application for a licence in respect of any fishing vessel of the United States intended by the operator to be used for purse seine fishing in the Licensing Area at any time in the Licensing Period by providing to the Administrator a complete application form as set out in Schedule 1.

3. Licences issued pursuant to this Treaty shall not take effect until the Administrator has received payment, free of any charges whatsoever, of the amounts set out in Part 1 of Schedule 2 for that Licensing Period in the manner described in that Schedule. Other financial commitments shall be provided during the Licensing Period pursuant to Part 2 of Schedule 2.

4. Subject to paragraph 5, a licence may be denied:

(a) where the application is not in accordance with the requirements of paragraph 2;

SCHEDULE—continued

(b) where the owner or charterer is the subject of proceedings under the bankruptcy laws of the United States, unless reasonable financial assurances have been provided to the Administrator;

(c) where the vessel in respect of which application for a licence has been made does not have good standing on the Regional Register of Foreign Fishing Vessels, maintained by the South Pacific Forum Fisheries Agency, provided that:

(i) good standing is withdrawn only as a result of:

(a) the commission of a serious offence against fisheries laws or regulations of a Pacific Island State and the operator has not fully complied with any civil or criminal judgment rendered with respect to such an offence;

(b) evidence existing that gives reasonable cause to believe that the operator has committed a serious offence against the fisheries laws or regulations of any Pacific Island State and that it has not been possible to bring the vessel operator to trial; or

(c) the vessel operator has failed to comply with information requirements for registration as notified by the Administrator to the Government of the United States;

(ii) the Pacific Island party requesting withdrawal of good standing has first consulted the Government of the United States and has made all reasonable efforts to resolve the dispute in question before utilizing the procedures for withdrawal of good standing;

(iii) in the event of a request for withdrawal of good standing from the Regional Register of Foreign Fishing Vessels of a vessel licensed pursuant to this Treaty, the Pacific Island parties agree to take into consideration that vessel’s compliance with the terms of this Treaty in determining whether to approve such a request; and

(iv) following a withdrawal of good standing the Pacific Island party involved promptly advises the Government of the United States in writing of the reason for the withdrawal and the requirements which must be fulfilled to reinstate good standing;

(d) where there has been a failure to satisfy a final judgment or other final determination for a breach of this Treaty by the owner, charterer or master of the vessel in respect of which application for a licence has been made, until such time as the final judgment or other final determination is satisfied, and subsequent change in ownership of a vessel shall not affect the application of this provision; or

(e) where an operator has committed, or the vessel has been used for:

(i) a violation of this Treaty, providing that the Pacific Island parties, following consultation with the Government of the United States, determine that the violation is of a serious nature; or

(ii) any violation of this Treaty on more than one occasion, providing that the Pacific Island parties, following consultation with the Government of the United States, determine that such multiple violations constitute a serious disregard of this Treaty.

5. A maximum number of licences may be issued for any Licensing Period as set out in Schedule 2, and, upon request by the Government of the United States, the Pacific Island parties may agree to vary such number.

6. On receipt of an application for a licence in accordance with this Annex, the Administrator shall take the necessary steps to ensure that:

(a) a licence in the form set out in Schedule 3 in respect of the vessel identified in the application; or

SCHEDULE—continued

(b) a statement setting out the reasons that a licence in respect of the vessel identified in the application is denied together with a refund of the amount or amounts provided with the application;

is promptly provided to the Government of the United States.

———

SCHEDULE 1

TREATY ON FISHERIES BETWEEN THE GOVERNMENTS OF CERTAIN PACIFIC ISLAND STATES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA

APPLICATION FORM

Application is hereby made for a licence authorising the use of the vessel named in this application for fishing in the Licensing Area.

1. FULL NAME OF VESSEL: ....................................................................................

2. RADIO CALL SIGN OF VESSEL: ........................................................................

3. REGIONAL REGISTER NUMBER OF VESSEL: ................................................

4. FULL NAME AND ADDRESS OF EACH PERSON WHO IS AN OPERATOR OF THE VESSEL, AND STATE WHETHER OWNER, CHARTERER, MASTER OR OTHER. IF OTHER, SPECIFY DETAILS: ..............................................................................

.................................................................................................................................

5. FULL NAME AND ADDRESS OF INSURER FOR PURPOSES OF ARTICLE 4.3 (a) OF THE TREATY: ......................................................................................................

..............................................................................................................................

6. REGISTRATION NUMBER AND MAKE OF HELICOPTER, IF ANY, TO BE CARRIED ON VESSEL: .........................................................................................................

..............................................................................................................................

7. REGISTRATION NUMBER AND MAKE OF ANY AIRCRAFT TO BE USED IN ASSOCIATION WITH FISHING ACTIVITIES AND NAME AND ADDRESS OF OPERATOR: .........................................................................................................

..............................................................................................................................

8. STATE WHETHER OWNER OR CHARTERER IS THE SUBJECT OF PROCEEDINGS UNDER THE BANKRUPTCY LAWS OF THE UNITED STATES: .................................................................................................................................

..............................................................................................................................

9. STATE WHETHER OPERATOR OR VESSEL HAS BEEN INVOLVED IN A VIOLATION OF THIS TREATY. IF YES, SPECIFY DETAILS: .............................................

..............................................................................................................................

........................................................ ............................................................

Date of application Director of the Southwest Region National Marine Fisheries Service National Oceanic and Atmospheric Administration

———

SCHEDULE—continued

SCHEDULE 2

PAYMENTS

The following amounts are payable annually for a period of five (5) years pursuant to paragraph 3 of Annex II.

PART 1

1. The amounts payable as set forth in this paragraph.

(a) Annual industry payments shall be made as follows:

(i) for the first annual Licensing Period, a lump sum of US$1.75 million for 35 vessels, with the next five licences to be made available for the same pro-rata payment as the first 35 licences, and an additional 10 licences to be made available at US$60,000 per vessel;

(ii) for subsequent annual Licensing Periods, 40 vessel licences calculated on the same basis as the first 40 vessel licences in sub-paragraph (i) and indexed to the price of fish as set forth below, with 10 additional licences to be made available at US$60,000 per vessel and indexed to the price of fish as set forth below.

(b) The indexation shall be applied as follows:

(i) DEFINITIONS

A. Base Vessel Payment: The Base Vessel Payment is US$50,000 for the first 40 vessels to be licensed and US$60,000 for vessels to be licensed in excess of 40 vessels.

B. Adjusted Individual Vessel Payment: The Adjusted Individual Vessel Payment is the individual vessel payment of each annual Licensing Period after the first annual Licensing Period. The Adjusted Individual Vessel Payment will always apply to the Licensing Period immediately following its calculation.

C. Landed Price: The Landed Price is the published standard price per ton (American Tuna Sales Association) for fish delivered to American Samoa prevailing at the time a United States purse seine vessel arrives in port for the purpose of offloading its catch.

D. Average Landed Price: The Average Landed Price is calculated by averaging the established landed price categories for yellowfin and skipjack tuna in American Samoa. The landed price categories to be used are: over 7.5 pounds, 4 to 7.5 pounds and 3 to 4 pounds for skipjack; over 20 pounds, 7.5 to 20 pounds and 4 to 7.5 pounds for yellowfin.

E. Base Price: The Base Price is the Average Landed Price for the three months prior to the Treaty entering into force.

F. Estimated Landed Value: The Estimated Landed Value is the Average Landed Price in effect at the time of a vessel’s landing weighted by the yellowfin/skipjack mix ratio to be calculated from information on Schedule 6 for that vessel.

G. Average Estimated Landed Value: The Average Estimated Landed Value is the Estimated Landed Value for all landings by United States purse seine vessels in American Samoa in the four quarters preceding the final quarter of the applicable Licensing Period divided by the total number of those landings for the same period.

SCHEDULE—continued

(ii) CALCULATION AND APPLICATION OF INDEXING FACTOR

A. To obtain the indexing factor by which the Adjusted Individual Vessel Payment shall be calculated, divide the Average Estimated Landed Value for the preceding four quarters by the Base Price.

B. To obtain the Adjusted Individual Vessel Payment, multiply the Base Vessel Payment by the indexing factory obtained in Paragraph (ii) A.

C. In no case shall the Adjusted Individual Vessel Payment be less than the Base Vessel Payment.

(iii) NOTIFICATIONS

The established prices and any changes shall be supplied to the Administrator by the Government of the United States within ten (10) days of their publication. The Administrator shall notify the Government of the United States sixty (60) days before the start of each Licensing Period of the Adjusted Individual Vessel Payment along with the computation used to arrive at the Adjusted Individual Vessel Payment. The Adjusted Individual Vessel Payment shall become final thirty (30) days after receipt by the Government of the United States, unless the Government of the United States advises the Administrator otherwise, in which case consultations shall be held.

(iv) CONSULTATIONS

If the established price categories are revised, or if there is a change in the tuna industry structure which makes the price calculations as set forth above inappropriate, the Administrator may consult with representatives of the Government of the United States as necessary to revise the formula.

(c) There shall be no pro-ration of the Base Vessel Payment or the Adjusted Individual Vessel Payment. There shall be no refunds of the Base Vessel Payment or the Adjusted Individual Vessel Payment following licence issuance pursuant to Annex II.

2. Sums payable pursuant to the related Agreement between the South Pacific Forum Fisheries Agency and the Government of the United States.

PART 2

3. Technical assistance, including provision of assistance by technicians, by the United States tuna industry valued at US$250,000 annually in response to requests co-ordinated through the Administrator.

———

SCHEDULE—continued

SCHEDULE 3

TREATY ON FISHERIES BETWEEN THE GOVERNMENTS OF CERTAIN PACIFIC ISLAND STATES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA

LICENCE FORM

The vessel described in this licence is hereby authorised to engage in fishing in the Licensing Area for the period described in this licence, in accordance with the terms and conditions referred to in Annex I.

Full name of vessel: .....................................................................................................

Radio call sign of vessel: .............................................................................................

Regional register number of vessel: .............................................................................

Helicopter or other aircraft which may be used in association with the fishing activities of the vessel: .................................................................................................

Period of validity:

The period of validity of this licence shall be no longer than one year:

From........................................., 19..........

To........................................., 19..........

.........................................................................

For and on behalf of the Pacific Island parties

Date of issue: ..................................................

Licence number. .............................................

Warning: It is an offence against the laws of many nations, including the United States of America, to violate the requirements of Annex I. Penalties may include substantial fines and vessel forfeiture.”.

NOTE

1. No. 7, 1952, as amended. For previous amendments, see No. 3, 1953; No. 4, 1956; No. 48, 1959; No. 93, 1966; No. 116, 1967; No. 150, 1968; No. 93, 1970; No. 218, 1973 (as amended by No. 7, 1974); No. 3, 1975; No. 91, 1976; No. 99, 1978; No. 155, 1979; Nos. 70, 86 and 93, 1980; No. 181, 1981; No. 80, 1982; Nos. 22, 30 and 152, 1984; No. 29, 1985; and No. 176, 1987.

[Minister’s second reading speech made in—

House of Representatives on 28 October 1987

Senate on 24 November 1987]