Reform articles 1, 2, 4, 5, 6, 7, 8, 10, 12, 13, and 21 and Annex 1; and add a Sole Transitional Provision, Annex 2, and Annex 3 to Executive Decree No. 43373-MAG of December 21, 2021, published in Supplement No. 7 of Official Gazette La Gaceta No. 8 of January 14, 2022, so that henceforth they read as follows:
"Article 1- OBJECTIVE: The objective of this regulation is to regulate the assignment of the fishing capacity for its use by purse-seine tuna vessels, recognized to the State of Costa Rica in the resolution on the capacity of the tuna fleet operating in the Eastern Pacific Ocean, hereinafter fishing capacity, of the Inter-American Tropical Tuna Commission, hereinafter CIAT, as well as the creation of the assignment registry for this capacity and the nominal catch (captura nominal) generated.
The assignment of the fishing capacity recognized to the State of Costa Rica constitutes a sovereign right of Costa Rican participation in the fishery for tuna and related species in the area of the CIAT Convention and the Eastern Pacific Ocean, hereinafter EPO.
The assignment of fishing capacity by the State must seek to ensure the supply of raw material to the national industry, and to incentivize the creation of a national tuna fishing fleet.
"Article 2- ASSIGNMENT AUTHORITY. The Executive Branch, through the Ministry of Agriculture and Livestock, hereinafter MAG, shall have the authority to assign, through partial volumes, the fishing capacity indicated in article 1 of this regulation, to tuna purse-seine fishing vessels, which may not exceed the limit recognized by the CIAT to the Costa Rican State.
The assignment of capacity to the specific vessel requested may correspond to a portion or the entirety of the volume of its hold (bodega), estimated in cubic meters. In the case of partial assignments, said vessel may only have the capacity assigned by the State of Costa Rica and the capacity assigned by its flag country.
The MAG shall reserve a percentage of the capacity to be assigned to:
a.) National-flagged or foreign-flagged tuna purse-seine fishing vessels that are owned by or associated with tuna processing companies already established and in operation in Costa Rica as of the date this Decree enters into force, provided they reliably demonstrate the association with said industry, in order to guarantee the supply of raw material.
b.) National-flagged or foreign-flagged tuna purse-seine fishing vessels that are owned by or associated with new tuna processing companies that demonstrate they will establish themselves in the country, provided they reliably accredit the association with these.
c.) National-flagged or foreign-flagged tuna purse-seine fishing vessels.
The assignment applications shall always be made by the shipowner (armador) owner of the vessel or its legal representative, who shall indicate under which of the aforementioned conditions they are requesting an assignment of capacity from the Costa Rican State and their commitment to comply with all the provisions of the Inter-American Tropical Tuna Commission (CIAT) and current regulations.
"Article 4- PREVIOUS PROCEDURES: The MAG, prior to the assignment of fishing capacity to national or foreign-flagged purse-seine tuna fishing vessels, must carry out the following actions:
- a)It shall verify the availability of fishing capacity, according to the fishing capacity assignment registry established in article 15 of this regulation and in accordance with the market study prepared by Incopesca, determining the needs of the national industry.
- b)It shall determine, based on technical criteria, the assignment of total or partial volumes, based on the recommendation established in article 3 of this regulation.
- c)It shall issue an official communiqué, to be published in the Official Gazette La Gaceta, as well as on the MAG website; said communiqué shall establish the start and closing dates for receiving applications (the period may not be less than one calendar month), as well as the reserved percentages indicated in article 2 on the availability of the fishing capacity assignment.
- d)The MAG shall carry out the procedure for the assignment of the quota, established in accordance with the terms and conditions of this regulation." "Article 5- APPLICATION FOR ASSIGNMENT: After carrying out the actions indicated in the preceding article, the MAG shall receive the assignment application formulated by the interested shipowner (armador) or by their legal representative duly accredited, and shall proceed to verify the following requirements, which are of mandatory admissibility:
1. Submission of a Letter of Commitment (Anexo 1) for compliance with legal requirements for the application for assignment of tuna fishing capacity quota, indicating the following:
a. Addressed to the Minister of Agriculture and Livestock, indicating the interest in opting for the assignment of capacity, for which percentage of those indicated in article 2 the assignment is requested, and the express commitment to comply fully with the conditions that the Government of Costa Rica establishes for the granting or assignment of capacity.
b. Submitted and signed by both the legal representative of the company in Costa Rica and the owner or manager of the shipowning company (empresa armadora) or owner of the vessel.
c. Specify the cubic meters of hold (bodega) volume requested from the Government of Costa Rica, indicating whether the volume requested is partial or the entirety of the capacity of the vessel's fish holds (bodegas).
d. In the case of shipowners (armadores) who request an assignment of capacity that are associated with tuna processing companies already established and in operation in Costa Rica as of the date this Decree enters into force, and are not owned by said companies, they must provide documents that reliably demonstrate the association, whether rental contracts or operation agreements.
e. In the case of shipowners (armadores) who request an assignment of capacity that are associated with new tuna processing companies that demonstrate they will establish themselves in the country, provided, that they are not owned by said companies, they must provide documents that reliably demonstrate the association, whether rental contracts or operation agreements.
2. If the volume requested is a fraction of the vessel's total hold (bodega) capacity, indicate under which flag the rest of the vessel's capacity is authorized, and must, according to the regulations of the flag country that has conferred said capacity, provide the information duly certified to that effect.
3. Official document from the Flag State duly apostilled, in the case of foreign vessels, issued no more than three months prior to its presentation, demonstrating that the vessel and the shipowner (armador) are complying with the regulations agreed upon by the Flag State and that the requesting vessel is not on any illegal fishing list; said certification must contain the following information:
a. Name of the vessel and previous names if any, and port of registry (base port), photograph of the vessel with registry number.
b. Name of the shipowning company (empresa armadora), owner or owners, and contact details of the central offices and fleet manager or manager of the company or vessel.
c. Place and date of construction.
d. Current photos of the vessel.
e. Length, beam, and moulded depth.
f. Type of freezing plant and capacity of freezing plant in cubic meters.
g. Number and capacity of fish holds (bodegas) broken down by each hold (bodega). Tonnage measurement document for the fish holds (bodegas) capacity.
h. Gross tonnage.
i. Type of fishing method or methods.
j. Nature of the authorization or license to fish and authorized target fishing types.
k. Navigation or seaworthiness certificates.
l. Power of the main engine or engines.
m. Information on the satellite monitoring beacon, type of beacon, signal provider company, and signal frequency, which must be compatible with the satellite tracking system of INCOPESCA.
n. International Maritime Organization (IMO) identification number.
ñ. Skipper certifications: whether the skipper or skippers are certified for fishing.
4. The MAG in coordination with Incopesca shall verify with the Regional Fisheries Management Organizations that the requesting vessel is not on any of the lists of vessels presumed to be involved in Illegal, Unreported, Unregulated (IUU) Fishing, in the last five years, adopted by the tuna Regional Fisheries Management Organizations (RFMOs).
5. Certification duly apostilled by the competent authority of the foreign flag State of the vessel, guaranteeing that the flag country will respect the obligations derived from the agreement signed by the shipowner (armador) and that it waives any claim as a country for the fishing capacity that the Costa Rican State temporarily assigns, as well as to the historical record of catches that will be maintained for all purposes as part of Costa Rica's quota.
6. General power of attorney granted to the legal representative in Costa Rica, issued no more than three months prior, duly apostilled, in the case of foreign vessels.
In the event that said general power of attorney is duly registered in Costa Rica, this must be indicated in the application so that it can be verified by the MAG during the requirement verification.
7. Not have any type of debt pending with the Costa Rican State or state entities such as the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), the Ministry of Finance, or INCOPESCA, which will be verified by the MAG during the requirement verification.
8. Indicate a legal domicile duly established within the national territory, in accordance with Costa Rican legislation.
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4. The MAG in coordination with Incopesca shall verify with the Regional Fisheries Management Organizations that the requesting vessel is not on any of the lists of vessels presumed to be involved in Illegal, Unreported, Unregulated (IUU) Fishing, in the last five years adopted by the tuna Regional Fisheries Management Organizations (RFMOs).
5. Certification duly apostilled by the competent authority of the foreign flag State of the vessel, guaranteeing that the flag country will respect the obligations derived from the agreement signed by the shipowner (armador) and that it waives any claim as a country for the fishing capacity that the Costa Rican State temporarily assigns, as well as to the historical record of catches that will be maintained for all purposes as part of Costa Rica's quota.
6. General power of attorney granted to the legal representative in Costa Rica, issued no more than three months prior, duly apostilled, in the case of foreign vessels.
In the event that said general power of attorney is duly registered in Costa Rica, this must be indicated in the application so that it can be verified by the MAG during the requirement verification.
7. Not have any type of debt pending with the Costa Rican State or state entities such as the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), the Ministry of Finance, or INCOPESCA, which will be verified by the MAG during the requirement verification.
8. Indicate a legal domicile duly established within the national territory, in accordance with Costa Rican legislation.
"ARTICLE 6: BUSINESS PLAN AND INVESTMENT and RESEARCH DEVELOPMENT: Shipowners (armadores) who submit their applications according to subsection b of article 2 must present, within their applications, in addition to the admissibility requirements:
1. In the case of national or foreign-flagged tuna purse-seine fishing vessels that are owned by or associated with new tuna processing companies that demonstrate they will establish themselves in the country, they must present a business and investment plan (plan de negocios e inversión) to establish themselves in the national territory of Costa Rica, generating investment, employment, and the contribution that the shipowning company (empresa armadora) requesting capacity can make to the development of national tuna clusters and/or support for the Fisheries Authority Incopesca for the development and promotion of research; these will be considered according to the scoring values found in Annexes 2 and 3 of this regulation, which will be evaluated by the MAG and INCOPESCA or other respective competent bodies for the assignment of the requested capacity.
Said business plan (plan de negocios) shall be a document explaining the destination that the shipowning company (empresa armadora) or owner of the vessel will give to the catches made with the capacity quota assigned by Costa Rica, which must indicate:
- a)Target species of the fishery, the methods or fisheries in which it will operate, and projected annual catches per target species with its current capacity and that b) Base port from which it will operate.
- c)Companies with which it currently has and in the future considers it will maintain tuna supply contracts, and the country where it intends to land.
- d)Future supply agreements or contracts with national processing companies, providing evidence of these agreements or contracts including compliance deadlines.
- e)Commitment to hire Costa Rican personnel as part of the crew, and the positions it offers to hire and within what timeframe this will be done.
- f)Investment plans in fishing infrastructure in the country, including processing plants and logistics and provisioning (avituallamiento), and the level of association with national private companies or initiatives it plans to develop, and within what timeframes it plans to develop them.
Once the quota is assigned, it must pay the corresponding fee (canon) for the same, and within the period of six months, it must have at least formalized the start of investments in Costa Rica. If it fails to comply with the above, the MAG will cancel the quota assignment without any liability, nor any refund of the monies paid for the quota assignment.
In the event that an extension of the period granted in this article is required, the investor must duly justify that the delay is not for reasons attributable to them. In either case, an extension shall be granted for a single time for a period of six months.
2. Optionally, in all cases, additional points will be evaluated and assigned to vessels that proceed to:
Submit the research proposal to be carried out jointly with INCOPESCA for the purpose of developing management and ordering plans in some fishery of fishing and commercial interest for the country and the various national fishing subsectors; this proposal will be analyzed by INCOPESCA to verify its viability.
"Article 7- OF THE ASSIGNMENT OF CAPACITY: Once the period for submitting applications has concluded, the MAG, to determine to which vessels the capacity will be assigned, shall carry out the following stages:
A- QUALIFICATION - STUDY OF APPLICATIONS: Once the applications indicated in the preceding article have been submitted, the head (persona jerarca) of the MAG, within a period of 3 calendar days, shall request a legal opinion from the MAG Legal Advisory Office, a technical opinion from INCOPESCA, and jointly an evaluation report with the following:
1. LEGAL OPINION. The Legal Advisory Office of the MAG shall verify compliance with the legal requirements provided in article 5 of this regulation, which must be rendered within a period of 15 calendar days from its receipt. In the event that the application is incomplete or omits requirements, the Legal Advisory Office shall notify (prevendrá) the shipowner (armador) to present the missing information, so that they complete the requirements omitted in the application, within a period of 10 business days. Said notification suspends the deadline for issuing the opinion.
2. TECHNICAL OPINION. INCOPESCA, through the Directorate of Fisheries and Aquaculture Management (Dirección de Ordenamiento Pesquero y Acuícola), shall verify the availability of Costa Rica's fishing capacity assignment, as indicated in articles 3 and 4 of this regulation; additionally, it shall verify whether the vessel for which the assignment is requested has entered the Exclusive Economic Zone of Costa Rica and whether it has conducted fishing activity without the corresponding license.
INCOPESCA, through the Directorate of Fisheries and Aquaculture Management (Dirección de Ordenamiento Pesquero y Acuícola), shall issue a technical opinion for each of the requesting vessels, within a maximum period of 20 calendar days from its receipt.
3. EVALUATION REPORT. The MAG, through the officials designated for this purpose by the head (persona jerarca) of the MAG, jointly with INCOPESCA, through the officials designated for this purpose by its Executive President, shall proceed to evaluate Annexes 2 and 3 and the requirements set forth in article 6 of this Regulation, and shall issue the evaluation report within a maximum period of 10 business days.
B- ASSIGNMENT BY THE MOST CONVENIENT OFFER FOR THE PUBLIC INTEREST: Once the previous stage is completed, having determined which applications meet the requirements, the Head (Persona Jerarca) of the MAG shall proceed to summon the shipowners (armadores) or their legal representative in Costa Rica at a specific date and time for their participation in the submission of offers, in which each offering shipowner (armador oferente) or their legal representative in Costa Rica must present their proposal in a sealed envelope, which shall contain the indication, pursuant to article 2, of the percentage for which they are participating and the price offered per cubic meter, based on the minimum price established according to article 21 of this regulation.
Offers that exceed the scheduled time and date shall be untimely and shall be rejected without any recourse whatsoever. Once the established time has passed, the envelopes shall be opened in the presence of the Head (Jerarca) of the MAG or their representative and the Head (Jerarca) of Incopesca or their representative, and at least one lawyer from the MAG Legal Advisory Office, who shall draw up minutes; the assignment shall proceed, taking into account the order from the highest price to the lowest, until the determined quota percentages are met. Once the submission of offers is concluded, an official communiqué of the result shall be issued on the MAG official website.
"Article 8- EXECUTIVE AGREEMENT: Once the assignment process defined in article 7 of this regulation is concluded, and all the indicated requirements are met, the head (persona jerarca) of the MAG shall proceed to issue an executive agreement for the procedure of assigning fishing capacity for its use by purse-seine tuna vessels; the term of said agreement shall be adjusted to the provisions of article 16 of this regulation. Likewise, the procedure for issuing this executive agreement shall be adjusted to the provisions of article 261 of the General Law of Public Administration, which establishes a period of two months following the petition of the administered party. Due to the subject matter and because this temporary quota assignment does not constitute a permit, a license, or an authorization, the positive silence (silencio positivo) stipulated in article 330 of the General Law of Public Administration does not apply.
Once the executive agreement is signed by the Executive Branch, it shall be forwarded to the shipowner (armador), who must publish it in the official gazette La Gaceta for its legal effectiveness.
In the event that the assignment application is rejected, an Administrative Resolution shall be issued, which shall be communicated to the applicant and shall have the corresponding recourse action." "Article 10- OBLIGATIONS OF THE SHIPOWNER (ARMADOR). The shipowner (armador) must comply with the following obligations, which shall be verified by the MAG as indicated in article 5 of this regulation:
- a)The VESSEL must be the sole and exclusive property of the SHIPOWNER (ARMADOR) during the entire period the assignment remains in effect, or failing that, demonstrate that it has a charter contract for the entire period the assignment remains in effect, in accordance with Resolution C-12-06 "Procedural Rules regarding capacity loans or grants and vessel chartering with temporary capacity transfer, of the Inter-American Tropical Tuna Commission (CIAT).
- b)The VESSEL must maintain the flag of the Republic of the country of origin during the entire period the assignment remains in effect.
Any change of flag must be previously approved by the MAG, complying with the procedure established in article 19 of this regulation.
- c)The SHIPOWNER (ARMADOR) is obligated to comply with all the maritime legislation of the Republic of the country of origin that regulates the activities of vessels, their registration, seaworthiness, reporting, and compliance with legislation, and that relating to tuna fishing in the Eastern Pacific Ocean.
- d)The SHIPOWNER (ARMADOR) undertakes that the VESSEL will be dedicated exclusively to legal fishing activities for permitted species in areas not prohibited by the different coastal states of the EPO and in strict compliance with closures (vedas), as well as any conservation or fisheries management measure in effect in relation to tuna catches agreed upon in the CIAT.
- e)The SHIPOWNER (ARMADOR) is obligated to carry out its activity in compliance with the national regulations of Costa Rica and other provisions established by the CIAT for the regulation and sustainable management of that fishery, as provided in Law No. 8712, regarding the use of fish aggregating devices, making the necessary efforts to participate in national programs or in the context of the CIAT, aimed at the sustainable management of the tuna fishery.
- f)THE SHIPOWNER (ARMADOR) acknowledges the right of the Government of Costa Rica to access the same operational information of the vessel to which the flag country is entitled; therefore, it is obligated to comply, at the request of the Government of Costa Rica, expressed directly by the Costa Rican Institute of Fisheries and Aquaculture (INCOPESCA), with the delivery of qualitative and quantitative operational information, according to the formats of the Republic of Costa Rica, with the maximum diligence that it would exercise before its Flag State and within the deadlines defined for it.
- g)The Shipowner (Armador) states their agreement that their history of tuna catches and related species in the EPO be recorded in the CIAT in favor of Costa Rica in proportion to the national capacity used." h) The Shipowner must maintain the demonstrated association with the national industry throughout the entire period that the allocation is in effect. Any change in this condition must be previously approved by the MAG, following the procedure established in Article 19 of these regulations.
"Article 12—ADVANCE PAYMENT: Once the executive agreement for the exercise of the rights it grants for the temporary use of the capacity allocation has been approved and published, the shipowner must proceed with the payment of the cost offered in the corresponding allocation proposal, for the first semester in advance, within a period of ten business days, in accordance with Article 21 of these regulations." "Article 13—COMMITMENT TO OFFER TO THE NATIONAL INDUSTRY: When the offer is made to the tuna processing companies operating in Costa Rica, as established in the Commitment Letter (Anexo 1) to Article 5 of these regulations, in the event that part or all of the offered catch is not purchased, or if there is no response from the National Industry within a maximum period of 3 calendar days after the offer is sent, the shipowner of the vessel shall be free to sell it to buyers from other countries.
To verify the offer, the shipowner commits to sending INCOPESCA the documentation related to the offer and the response from the companies to which the product was offered.
Once the documentation is received, INCOPESCA, within a maximum period of two calendar days, must verify it with the processing companies in order to confirm it; once the foregoing is completed, said verification shall be attached to the administrative registration file, and INCOPESCA shall notify the shipowner of the result regarding the availability of its catch." "Article 21—COST OF THE ALLOCATION: The use of the allocation regulated in these regulations shall be conditional upon the effective annual payment to INCOPESCA of the amount for which the applicant bid and for which the quota was assigned, with a minimum base sum of $330.00 (three hundred thirty United States dollars) per cubic meter of the assigned fishing capacity volume, taking as a reference the total volume of the vessel's fish hold with which it is registered in the CIAT Regional Register; in the case of vessels not registered in said Register, they must provide a certification of the total volume of the vessel's fish hold issued by the vessel's flag State.
The payment must be made per semester in advance. The annual amount to be charged considers the variables established in the methodology: cubic meters assigned by the CIAT to Costa Rica, conversion to metric tons, efficiency per fishing trip, the number of fishing trips, the estimated metric tons of catch, the average international price of whole yellowfin and skipjack tuna for the Eastern Tropical Pacific Ocean, and the usage factor.
INCOPESCA, through the Tariff Commission, shall review and update the methodology and the amount to be charged per cubic meter of volume every two years. The result of this study shall be communicated to the MAG and to the shipowners who have a fishing capacity allocation, and shall be applied automatically to extensions and new capacity allocations.
In the event of a breach of any of the obligations that the shipowner assumes under these regulations, the MAG may terminate the agreement immediately and without prior notice, notifying the shipowner, without prejudice to actions for liability and damages; in the event of revocation or termination of the agreement due to non-compliance, the respective shipowner shall not be entitled to a refund of the amount paid in advance for the fishing capacity allocation."
SINGLE TRANSITORY PROVISION— All applications related to the purse-seine tuna fishing capacity allocation recognized to Costa Rica within the Inter-American Tropical Tuna Commission, which were submitted prior to this reform to the Ministry of Agriculture and Livestock or INCOPESCA, shall not be processed and must fully comply with these regulations.