FEDERATED STATES OF MICRONESIA
ANNOTATED CODE 2014
TITLE 35
COPYRIGHTS, PATENTS AND TRADEMARKS
CHAPTERS
1 Copyrights (§§ 101-126)
CHAPTER 1
Copyrights
SECTIONS
§ 101. Definitions.
§ 102. Subject matter of copyright—Generally.
§ 103. Subject matter of copyright—Compilations and
derivative works.
§ 104. Subject matter of copyright—National origin.
§ 105. Subject matter of copyright—FSM Government works.
§ 106. Exclusive rights in copyrighted works.
§ 107. Limitation on exclusive rights—Fair use.
§ 108. Limitations on exclusive rights—Reproduction by
libraries and archives.
§ 109. Other limitations on exclusive rights of specific works.
§ 110. Ownership of copyright.
§ 111. Ownership of copyright as distinct from ownership of
material object.
§ 112. Recordation of transfer.
§ 113. Duration of copyright—Works created on or after
effective date.
§ 114. Duration of copyright—Works created but not
published or copyrighted before effective date.
§ 115. Notice of copyright—Visually perceptible copies.
§ 116. Notice of copyright—Phonorecords of sound recordings.
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§ 117. Notice of copyright—Contributions to collective works.
§ 118. Deposit of copies or phonorecords for Library of the
Congress of the FSM.
§ 119. Copyright registration in general.
§ 120. Application for copyright registration.
§ 121. Registration of claim and issuance of certificate.
§ 122. Infringement—Civil remedies.
§ 123. Infringement—Criminal offense—Fraud.
§ 124. Responsibilities and duties of the Office of the Attorney
General.
§ 125. Regulations.
§ 126. Fees.
§ 101. Definitions.
As used in this chapter:
(1) "Anonymous work" means a work on the copies or
phonorecords of which no natural person is identified as the
author.
(2) "Attorney General's Office" means the Office of the Attorney
General of the National Government of the Federated States of
Micronesia.
(3) "Audiovisual works" means works that consist of a series of
related images which are intrinsically intended to be shown by the
use of machines or devices such as projectors, viewers, or
electronic equipment, together with accompanying sounds, if any,
regardless of the nature of the material objects, such as films or
tapes, in which the works are embodied.
(4) "Collective work" means a work, such as a periodical issue,
anthology, or encyclopedia, in which a number of contributions,
constituting separate and independent works in themselves, are
assembled into a collective whole.
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(5) "Compilation" means a work formed by the collection and
assembling of preexisting materials or of data that are selected,
coordinated, or arranged in such a way that the resulting work as a
whole constitutes an original work of authorship. "Compilation"
includes collective works.
(6) "Copies" means material objects, other than phonorecords, in
which a work is fixed by any method and from which can be
perceived, reproduced, or otherwise communicated, either directly
or with the aid of a device. "Copies" includes the material object,
other than a phonorecord, in which the work is first fixed.
(7) "Court" means the trial or appellate division of the Supreme
Court of the Federated States of Micronesia.
(8) "Created": A work is "created" when it is fixed in a copy or
phonorecord for the first time. Where a work is prepared over a
period of time, the portion of it that has been fixed at any particular
time constitutes the work as of that time, and where the work has
been prepared in different versions, each version constitutes a
separate work.
(9) "Derivative work" means a work based upon one or more
preexisting works, such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgement, condensation, or any
other form in which a work may be recasted, transformed, or
adapted. A work consisting of editorial revisions, annotations,
elaborations, or other modifications which, as a whole, represent
an original work of authorship, is a "derivative work."
(10) "Display": To "display" a work means to show a copy of it,
either directly or by means of a film, slide, television image, or any
other device.
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(11) "Fixed": A work is "fixed" in a tangible medium of
expression when its embodiment in a copy or phonorecord, by or
under the authority of the author, is sufficiently permanent or
stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration.
(12) "Literary works" means works, other than audiovisual works,
expressed in words, numbers, or other verbal or numerical symbols
or indicia, regardless of the nature of the material objects, such as
books, periodicals, manuscripts, phonorecords, film, tapes, or
cards, in which they are embodied.
(13) "Perform": To "perform" a work means to recite, render,
play, dance, or act, either directly or by means of any device or, in
the case of a motion picture or other audiovisual work, to show its
images in any sequence or to make the sounds accompanying it
audible.
(14) "Pictorial, graphic, and sculptural works" includes two-
dimensional and three-dimensional works of fine, graphic, and
applied art, photographs, prints and art reproductions, maps,
globes, charts, technical drawings, diagrams, and models.
(15) "Publication" means the distribution of copies or
phonorecords of a work to the public by sale or other transfer of
ownership or by rental, lease, or lending. The offering to distribute
copies or phonorecords to a group of persons, for purposes of
further distribution, public performance, or public display
constitutes publication.
Source: PL 2-29 § 101.
Cross-reference: FSM Const., art. IX, § 2(g). The
provisions of the Constitution are found in Part I of this
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code.
§ 102. Subject matter of copyright—Generally.
(1) Copyright protection subsists, in accordance with this chapter,
in original works of authorship fixed in any tangible medium of
expression from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a
device. Works of authorship include the following categories:
(a) literary works;
(b) musical works, including any accompanying words;
(c) dramatic works, including any accompanying music;
(d) pantomimes and choreographic works;
(e) pictorial, graphic, and sculptural works;
(f) motion pictures and other audiovisual works; and
(g) sound recordings.
(2) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method
of operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or embodied in
such work.
Source: PL 2-29 § 102.
§ 103. Subject matter of copyright—Compilations and
derivative works.
(1) The subject matter of copyright as specified by section 102 of
this chapter includes compilations and derivative works, but
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protection for a work employing preexisting material in which
copyright subsists does not extend to any part of the work in which
such material has been used unlawfully.
(2) The copyright in a compilation or derivative work extends
only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work,
and does not imply any exclusive right in the preexisting material.
The copyright in such work is independent of, and does not affect
or enlarge the scope, duration, ownership, or subsistence of any
copyright protection in the preexisting material.
Source: PL 2-29 § 103, modified.
§ 104. Subject matter of copyright—National origin.
(1) Unpublished works. The works specified by sections 102 and
103 of this chapter, while unpublished, are subject to protection
under this chapter without regard to the nationality or citizenship
of the author.
(2) Published works. The works specified by sections 102 and 103
of this chapter, when published, are subject to protection under this
chapter if:
(a) on the date of first publication, one or more of the
authors is a national or domiciliary of the Federated States
of Micronesia or is a national or a domiciliary of a country
that is a party to a copyright treaty to which the Federated
States of Micronesia is also a party; or
(b) the work comes within the scope of a Presidential
proclamation. Whenever the President of the Federated
States of Micronesia finds that a particular foreign nation
extends to works by authors who are nationals or
domiciliaries of the Federated States of Micronesia or to
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works that are first published in the Federated States of
Micronesia, copyright protection on substantially the same
basis as that on which the foreign nation extends protection
to works of its own nationals and domiciliaries and works
first published in that nation, the President may by
proclamation extend protection under this chapter to works
of which one or more of the authors are, on the date of first
publication, a national or domiciliary of that nation. The
President may revise, suspend, or revoke any such
proclamation, or impose any conditions or limitations on
protection under a proclamation.
Source: PL 2-29 § 104.
Cross-reference: FSM Const., art. IX, § 2(g). The
provisions of the Constitution are found in Part I of this
code.
The statutory provisions on the President and the Executive
are found in title 2 of this code.
§ 105. Subject matter of copyright—FSM Government works.
Copyright protection under this chapter is not available for any
work of the Federated States of Micronesia Government, but the
Federated States of Micronesia is not precluded from receiving and
holding copyrights transferred to it by assignment, or otherwise.
Source: PL 2-29 § 105.
§ 106. Exclusive rights in copyrighted works.
Subject to sections 107, 108, and 109 of this chapter, the owner of
copyright under this chapter has the exclusive rights to do and to
authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
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(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual
works, to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly.
Source: PL 2-29 § 106.
Cross-reference: FSM Const., art. IX, § 2(g). The
provisions of the Constitution are found in Part I of this
code.
§ 107. Limitation on exclusive rights—Fair use.
Notwithstanding the provisions of section 106 of this chapter, the
fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include:
(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
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(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of
the copyrighted work.
Source: PL 2-29 § 107.
§ 108. Limitations on exclusive rights—Reproduction by
libraries and archives.
Notwithstanding the provisions of section 106 of this chapter, it is
not an infringement of copyright for a library or archives to
reproduce no more than one copy or phonorecord, under the
conditions specified by this section, if:
(1) the reproduction or distribution is made without any purpose
of direct or indirect commercial advantage;
(2) the collections of the library or archives are open to the public;
and
(3) the reproduction or distribution of the work includes a notice
of copyright.
Source: PL 2-29 § 108.
Cross-reference: The statutory provisions on the Library
of the Congress of the FSM are found in chapter 5 of title
40 (Education).
§ 109. Other limitations on exclusive rights of specific works.
Other limitations on exclusive rights of specific works or
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exemptions of certain performances and displays may be
prescribed by the Attorney General in rules and regulations
consistent with sections 107 and 108 of this chapter.
Source: PL 2-29 § 109.
Cross-reference: The statutory provisions on the President
and the Executive are found in title 2 of this code.
§ 110. Ownership of copyright.
(1) Initial ownership. Copyright in a work protected under this
chapter vests initially in the author or authors of the work. The
authors of a joint work are co-owners of copyright in the work.
(2) Works made for hire. In the case of a work made for hire, the
employer is considered the author for purposes of this chapter and,
unless the parties have expressly agreed otherwise in a written
instrument signed by them, owns all of the rights comprised in the
copyright.
(3) Contributions to collective works. Copyright in each separate
contribution to a collective work is distinct from copyright in the
collective work as a whole, and vests initially in the author of the
contribution. In the absence of an express transfer of the copyright
or of any rights under it, the owner of copyright in the collective
work is presumed to have acquired only the privilege of
reproducing and distributing the contribution as part of that
particular collective work, any revision of that collective work, and
any later collective work in the same series.
(4) Transfer of ownership.
(a) The ownership of a copyright may be transferred in
whole or in part by any means of conveyance or by
operation of law or may be bequeathed by will; provided,
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that in the absence of the aforesaid means of transfer,
ownership of a copyright shall pass as personal property by
the customs of the State where the owner is domiciled.
(b) Any of the exclusive rights comprised in a copyright,
including any subdivision of any of the rights specified by
section 106 of this chapter, may be transferred as provided
by paragraph (a) of this subsection and owned separately.
The owner of any particular exclusive right is entitled, to
the extent of that right, to all of the protection and remedies
accorded to the copyright owner by this chapter.
Source: PL 2-29 § 201.
§ 111. Ownership of copyright as distinct from ownership of
material object.
Ownership of a copyright, or of any of the exclusive rights under a
copyright, is distinct from ownership of any material object in
which the work is embodied. Transfer of ownership of any
material object, including the copy or phonorecord in which the
work is first fixed, does not of itself convey any rights in the
copyrighted work embodied in the object; nor, in the absence of an
agreement, does transfer of ownership of a copyright or of any
exclusive rights under a copyright convey property rights in any
material object.
Source: PL 2-29 § 202.
Cross-reference: FSM Const., art. IX, § 2(g). The
provisions of the Constitution are found in Part I of this
code.
§ 112. Recordation of transfer.
(1) Any transfer of copyright ownership or other document
pertaining to a copyright may be recorded in the Office of the
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Attorney General if the document filed for recordation bears the
actual signature of the person who executed it, or if it is
accompanied by a sworn or official certification that it is a true
copy of the original, signed document.
(2) Recordation of a document in the Office of the Attorney
General gives all persons constructive notice of the facts stated in
the recorded document, but only if:
(a) the document, or material attached to it, specifically
identifies the work to which it pertains so that, after the
document is indexed by the Office of the Attorney General,
it would be revealed by a reasonable search under the title
or registration number of the work; and
(b) registration has been made for the work.
Source: PL 2-29 § 203.
Cross-reference: The statutory provisions on the President
and the Executive are found in title 2 of this code.
§ 113. Duration of copyright—Works created on or after
effective date.
(1) Copyright in a work created on or after the effective date of the
Act codified in this chapter subsists from its creation and, except as
provided by the following subsections, endures for a term
consisting of the life of the author and 50 years after the author's
death.
(2) In the case of a joint work prepared by two or more authors
who did not work for hire, the copyright endures for a term
consisting of the life of the last surviving author and 50 years after
such last surviving author's death.
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(3) In the case of an anonymous work, a pseudonymous work, or a
work made for hire, the copyright endures for a term of 75 years
from the year of its first publication, or a term of 100 years from
the year of its creation, whichever expires first. If, before the end
of such term, the identity of one or more of the authors of an
anonymous or pseudonymous work is revealed in the records of a
registration made for that work, the copyright in the work endures
for the term specified by subsections (1) and (2) of this section.
Source: PL 2-29 § 301.
§ 114. Duration of copyright—Works created but not
published or copyrighted before effective date.
Copyright in a work created before the effective date of the Act
codified in this chapter, but not theretofore in the public domain or
copyrighted, subsists beginning on the effective date of the Act
codified in this chapter and endures for the term provided by
section 113 of this chapter.
Source: PL 2-29 § 302.
§ 115. Notice of copyright—Visually perceptible copies.
(1) Whenever a work protected under this chapter is published in
the Federated States of Micronesia or elsewhere by authority of the
copyright owner, a notice of copyright as provided by this section
shall be placed on all publicly distributed copies from which the
work can be visually perceived.
(2) The notice appearing on the copies shall consist of the
following three elements:
(a) the symbol © (the letter C in a circle), or the word
"Copyright," or the abbreviation "Copr.";
(b) the year of first publication of the work; in the case of
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compilations or derivative works incorporating previously
published material, the year date of first publication of the
compilations or derivative work is sufficient. The year date
may be omitted where a pictorial, graphic, or sculptural
work, with accompanying text matter, if any, is reproduced
in or on greeting cards, postcards, or any useful articles;
and
(c) the name of the owner of copyright in the work, or an
abbreviation by which the name can be recognized, or a
generally known alternative designation of the owner.
(3) The notice shall be affixed to the copies in such manner and
location as to give reasonable notice of the claim of copyright.
Source: PL 2-29 § 401.
Cross-reference: FSM Const., art. IX, § 2(g). The
provisions of the Constitution are found in Part I of this
code.
§ 116. Notice of copyright---Phonorecords of sound
recordings.
(1) Whenever a sound recording protected under this chapter is
published in the Federated States of Micronesia or elsewhere by
authority of the copyright owner, a notice of copyright as provided
by this section shall be placed on all publicly distributed
phonorecords of the sound recording.
(2) The notice appearing on the phonorecords shall consist of the
following three elements:
(a) the symbol (the letter P in a circle);
(b) the year of first publication of the sound recording; and
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(c) the name of the owner of copyright in the sound
recording.
(3) The notice shall be placed on the surface of the phonorecord,
or on the phonorecord label or container, in such manner and
location as to give reasonable notice of the claim of copyright.
Source: PL 2-29 § 402.
§ 117. Notice of copyright—Contributions to collective works.
A single notice applicable to the collective work as a whole is
sufficient to satisfy the requirements of sections 115 and 116 of
this chapter, regardless of the ownership of copyright in the
contributions and whether or not they have been previously
published; provided, that the copyright of the owner in a separate
contribution that does not bear its own notice is not affected.
Source: PL 2-29 § 403.
Cross-reference: FSM Const., art. IX, § 2(g). The
provisions of the Constitution are found in Part I of this
code.
§ 118. Deposit of copies or phonorecords for Library of the
Congress of the FSM.
(1) Subject to exception under this section, the owner of copyright
or of the exclusive right of publication in a work published with
notice of copyright in the Federated States of Micronesia shall
deposit, within four months after the date of such publication:
(a) two complete copies of the best edition; or
(b) if the work is a sound recording, two complete
phonorecords of the best edition.
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(2) The required copies or phonorecords shall be deposited in the
Attorney General's Office for the use or disposition of the Library
of the Congress of the Federated States of Micronesia.
(3) The Attorney General may by regulation exempt any
categories of material from the deposit requirements of this section
or require deposit of only one copy or phonorecord with respect to
any categories.
Source: PL 2-29 § 404.
Cross-reference: The statutory provisions on the President
and the Executive are found in title 2 of this code. The
statutory provisions on the Library of the Congress of FSM
are found in chapter 5 of title 40 (Education).
§ 119. Copyright registration in general.
At any time during the subsistence of copyright in any published
or unpublished work, the owner of copyright or of any exclusive
right in the work may obtain registration of the copyright claim by
delivering to the Attorney General's Office the deposit required
and upon payment of fee as prescribed in regulations. The
Attorney General shall by rules and regulations prescribe the
material deposited for registration.
Source: PL 2-29 § 405.
Cross-reference: The statutory provisions on the President
and the Executive are found in title 2 of this code.
§ 120. Application for copyright registration.
The application for copyright registration shall be made on a form
prescribed by the Attorney General and shall include all
information as prescribed by rules and regulations.
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Source: PL 2-29 § 406.
Cross-reference: FSM Const., art. IX, § 2(g). The
provisions of the Constitution are found in Part I of this
code.
The statutory provisions on the President and the Executive
are found in title 2 of this code. The statutory provisions on
Administrative Procedure are found in title 17 of this code.
§ 121. Registration of claim and issuance of certificate.
(1) When, after examination, the Attorney General determines
that, in accordance with the provisions of this chapter, the material
deposited constitutes copyrightable subject matter and that the
legal requirements of this chapter have been met, he shall register
the claim and issue to the applicant a certificate of registration
under the seal of the Attorney General's Office. The certificate
shall contain the information given in the application, together with
the number and effective date of the registration.
(2) In any case in which the Attorney General determines that, in
accordance with the provisions of this chapter, the material
deposited does not constitute copyrightable subject matter or that
the claim is invalid for any other reason, he shall refuse registration
and notify the applicant in writing of the reasons for such refusal.
Source: PL 2-29 § 407.
Cross-reference: The statutory provisions on the President
and the Executive are found in title 2 of this code.
§ 122. Infringement—Civil remedies.
Anyone who violates any of the exclusive rights of the copyright
as provided under this chapter is an infringer of copyright and shall
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be liable:
(1) to an injunction restraining such infringement;
(2) to pay the copyright owner the actual damages suffered by the
owner and any profits of the infringer that are attributable to the
infringement and are not taken into account in computing the
actual damages; and
(3) to pay the copyright owner punitive damages, if imposed by
the court.
Source: PL 2-29 § 501.
Cross-reference: The statutory provisions on the President
and the Executive are found in title 2 of this code. The
statutory provisions on the FSM Supreme Court are found
in title 4 of this code.
§ 123. Infringement—Criminal offense—Fraud.
(1) Any person who infringes a copyright willfully and for
purpose of commercial advantage or private gain shall be fined
$10,000 or imprisoned for not more than one year, or both.
(2) When any person is convicted of any violation under
subsection (1) of this section, the court in its judgment of
conviction, in addition to the penalty therein prescribed, may order
the forfeiture and destruction or other disposition of all infringing
copies or phonorecords and devices used in the manufacture of
such infringing copies or phonorecords.
(3) Any person who, with fraudulent intent, places on any article a
notice of copyright or words of the same purpose that such person
knows to be false, or who, with fraudulent intent, publicly
distributes or imports for public distribution any article bearing
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such notice or works that such person knows to be false, shall be
fined not more than $2,500.
(4) Any person who, with fraudulent intent, removes or alters any
notice of copyright appearing on a copy of a copyrighted work
shall be fined not more than $2,500.
(5) Any person who knowingly makes a false representation of a
material fact in the application for copyright registration or in any
written statement filed in connection with the application shall be
fined not more than $2,500.
Source: PL 2-29 § 502.
Cross-reference: The statutory provisions on the President
and the Executive are found in title 2 of this code. The
statutory provisions on the FSM Supreme Court are found
in title 4 of this code.
The statutory provisions on Crimes are found in title 11 of
this code. The statutory provisions on Criminal Procedure
are found in title 12 of this code.
Case annotations: The term "counterfeit" has a specific
legal meaning: to forge; to copy or imitate, without
authority or right, and with a view to deceive or defraud, by
passing the copy or thing forged for that which is original
or genuine. Yang v. Western Sales Trading Co., 11 FSM R.
607, 616 (Pon. 2003).
Goods received through unauthorized distribution networks
often are referred to as "gray market" goods, or parallel
products. Gray market goods are genuine products
possessing a brand name protected by trademark or
copyright, which are typically manufactured abroad and
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then purchased and imported by third parties, bypassing
authorized distribution channels. Yang v. Western Sales
Trading Co., 11 FSM R. 607, 617 (Pon. 2003).
§ 124. Responsibilities and duties of the Office of the Attorney
General.
(1) Until the President of the Federated States of Micronesia,
through administrative directives, establishes a separate Copyright
Office, within or without the Attorney General's Office, the Office
of the Attorney General shall exercise all administrative functions
and duties under this chapter.
(2) The Office of the Attorney General shall adopt a seal to be
used to authenticate all certified documents issued by it.
(3) The Office of the Attorney General shall provide and keep
records of all deposits, registration, recordation, and other
activities as required by this chapter or rules and regulations later
issued.
(4) The Office of the Attorney General shall compile and publish
annually catalogs of all copyright registration.
Source: PL 2-29 § 601.
Cross-reference: The statutory provisions on the President
and the Executive are found in title 2 of this code.
§ 125. Regulations.
The Attorney General is authorized to establish regulations not
inconsistent with this chapter.
Source: PL 2-29 § 602.
Cross-reference: The statutory provisions on the President
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and the Executive are found in title 2 of this code. The
statutory provisions on Administrative Procedure are found
in title 17 of this code.
§ 126. Fees.
(1) Fees for registration, recordation, issuance of certificate, and
other services shall be prescribed in regulations issued by the
Attorney General.
(2) The Attorney General shall deposit all fees in the General
Fund of the Federated States of Micronesia.
Source: PL 2-29 § 603.
Cross-reference: FSM Const., art. IX, § 2(g). The
provisions of the Constitution are found in Part I of this
coded.
The statutory provisions on the President and the Executive
are found in title 2 of this code. The statutory provisions on
Administrative Procedure are found in title 17 of this code.