COUNCIL DECISION

of 8 December 2005

on the approval on behalf of the European Community of the Agreement on the International Dolphin Conservation Programme

(2005/938/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 37 in conjunction with the first sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

Whereas:

(1) The Community is competent to adopt measures for the conservation and management of fishery resources and to enter into agreements with third countries and international organisations.

(2) The Community is a contracting party to the United Nations Convention on the Law of the Sea, which requires all members of the international community to cooperate in conserving and managing the sea's living resources.

(3) The Community is a contracting party to the Agreement on the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.

(4) In February 1998, the 35th Intergovernmental meeting on the conservation of tunas and dolphins in the Eastern Pacific Ocean adopted the Agreement on the International Dolphin Conservation Programme (hereinafter referred to as the Agreement). The Agreement was signed in Washington on 21 May 1998 and entered into force on 15 February 1999.

(5) At present there are 15 contracting parties to the Agreement these being Bolivia, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Spain, United States, Vanuatu and Venezuela.

(6) The objectives of the Agreement include the progressive reduction of incidental dolphin mortalities in the tuna purse-seine fishery in the Eastern Pacific Ocean to levels approaching zero, through the setting of annual limits and the long term sustainability of the tuna stocks in the Agreement Area.

(7) The Community recognises the importance of the Agreement in protecting sustainable fishing as a means of guaranteeing the ecological conservation of species, particularly dolphins.

(8) Community fishermen fish tuna stocks in the Agreement Area and it is in the Community's interest to play an effective role in the implementation of the Agreement.

(9) The Community signed (2) the Agreement, and decided to apply it provisionally (3) until completion of the required procedures for its official accession to the Inter-American Tropical Tuna Commission (IATTC).

(10) Under Article XIV of the Agreement, the IATTC is to have an integral role in coordinating the implementation of the Agreement and many implementing measures will be adopted within the framework of the IATTC.

(11) In parallel, the Kingdom of Spain was authorised to accede to the Convention establishing the IATTC on a temporary basis (4).

(12) The Kingdom of Spain has acceded to the IATTC on June 2003.

(13) The official accession of the Community to the IATTC will take place upon the entry into force of the Convention for the strengthening of the IATTC established by the 1949 Convention between the United States of America and the Republic of Costa Rica (the Antigua Convention), of which the Community is a signatory (5).

(14) Pending the entry into force of the Antigua Convention, the effective participation of the Community in the work of the IATTC and consequently, to all activities and measures decided under the Agreement, is ensured through the Kingdom of Spain's membership of the IATTC on behalf of the Community.

(15) The Community is now therefore in a position to approve the Agreement and fully assume its duties and responsibilities under both the Agreement and the Convention establishing the IATTC,

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement on the International Dolphin Conservation Programme is hereby approved on behalf of the Community.

The text of the Agreement is attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the person(s) empowered to deposit the instrument of approval with the Government of the United States of America as Depositary of the Agreement in Accordance with Article XXXII thereof.

Done at Brussels, 8 December 2005.

For the Council

The President

J. HUTTON

(1) Opinion of 9 June 2005 (not yet published in the Official Journal).

(2)

OJ L 132, 27.5.1999, p. 1

(3)

OJ L 147, 12.6.1999, p. 23

(4)

OJ L 155, 22.6.1999, p. 37

(5)

OJ L 15, 19.1.2005, p. 9

AGREEMENT

on the International Dolphin Conservation Programme

PREAMBLE

THE PARTIES TO THIS AGREEMENT,

AWARE THAT in accordance with the relevant provisions of international law, as reflected in the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, all States have the duty to take, or to cooperate with other States in taking, such measures as may be necessary for the conservation and management of living marine resources;

INSPIRED by the principles contained in the Rio Declaration on Environment and Development of 1992, as well as the wish to implement the principles and standards of the Code of Conduct for Responsible Fisheries adopted by the FAO Conference in 1995;

STRESSING the political will of the international community to contribute to enhancing the effectiveness of fisheries conservation and management measures, through the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, adopted by the FAO Conference in 1993;

TAKING NOTE that the 50th General Assembly of the United Nations, pursuant to resolution A/RES/50/24, adopted the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks (the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks);

REAFFIRMING the commitments established in the La Jolla Agreement of 1992 and in the Declaration of Panama of 1995;

EMPHASISING the goals of eliminating dolphin mortality in the purse-seine tuna fishery in the Eastern Pacific Ocean and of seeking ecologically sound means of capturing large yellowfin tunas not in association with dolphins;

CONSIDERING the importance of the tuna fishery as a source of food and income for the populations of the Parties and that conservation and management measures must address those needs and take into account the economic and social impacts of those measures;

RECOGNISING the dramatic reduction of incidental dolphin mortality achieved through the La Jolla Agreement;

CONVINCED that scientific evidence demonstrates that the technique of fishing for tuna in association with dolphins, in compliance with the regulations and procedures established under the La Jolla Agreement and reflected in the Declaration of Panama, has provided an effective method for the protection of dolphins and rational use of tuna resources in the Eastern Pacific Ocean;

REAFFIRMING that multilateral cooperation constitutes the most effective means for achieving the objectives of conservation and sustainable use of living marine resources;

COMMITTED to ensure the sustainability of tuna stocks in the Eastern Pacific Ocean and to progressively reduce the incidental dolphin mortalities in the tuna fishery of the Eastern Pacific Ocean to levels approaching zero; to avoid, reduce and minimise the incidental catch and the discard of juvenile tuna and the incidental catch of non-target species, taking into consideration the interrelationship among species in the ecosystem,

HAVE AGREED AS FOLLOWS:

Article I

Definitions

For the purposes of this Agreement:

‘tuna’ means the species of the suborder

Scombroidei

(Klawe, 1980), with the exception of the genus

Scomber

;

‘dolphins’ means species of the family

Delphinidae

associated with the fishery for yellowfin tuna in the Agreement Area;

‘vessel’ means a vessel that fishes for tuna with purse seines;

‘parties’ means the States or regional economic integration organisations which have consented to be bound by this Agreement and for which this Agreement is in force;

‘regional economic integration organisation’ means a regional economic integration organisation to which its Member States have transferred competence over matters covered by this Agreement, including the authority to make decisions binding on its Member States in respect of those matters;

‘IATTC’ means the Inter-American Tropical Tuna Commission;

‘La Jolla Agreement’ means the instrument adopted at the Intergovernmental Meeting held in June 1992;

‘International Dolphin Conservation Programme’ means the international programme established pursuant to this Agreement based on the La Jolla Agreement, as formalised, modified and enhanced in accordance with the Declaration of Panama;

‘On-Board Observer Programme’ means the programme defined in Annex II;

10.

‘Declaration of Panama’ means the Declaration signed in Panama City, Republic of Panama, on 4 October 1995;

11.

‘Director’ means the Director of Investigations of the IATTC.

Article II

Objectives

The objectives of this Agreement are:

to progressively reduce incidental dolphin mortalities in the tuna purse-seine fishery in the Agreement Area to levels approaching zero, through the setting of annual limits;

with the goal of eliminating dolphin mortality in this fishery, to seek ecologically sound means of capturing large yellowfin tunas not in association with dolphins; and

to ensure the long-term sustainability of the tuna stocks in the Agreement Area, as well as that of the marine resources related to this fishery, taking into consideration the interrelationship among species in the ecosystem, with special emphasis on,

inter alia

, avoiding, reducing and minimising by-catch and discards of juvenile tunas and non-target species.

Article III

Area of application of the Agreement

The area of application of this Agreement (the Agreement Area) is defined in Annex I.

Article IV

General measures

The Parties shall, within the framework of the IATTC:

take measures to ensure the conservation of ecosystems as well as conservation and management measures to ensure the long-term sustainability of tuna stocks and other stocks of living marine resources associated with the tuna purse-seine fishery in the Agreement Area, based on the best scientific evidence available, and apply the precautionary approach, consistent with the relevant provisions of the FAO Code of Conduct for Responsible Fisheries and the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. Such measures shall be designed to maintain or restore the biomass of harvested stocks at or above levels capable of producing maximum sustainable yield, and with the goal of maintaining or restoring the biomass of associated stocks at or above levels capable of producing maximum sustainable yield; and

take measures, according to their capacities, to assess the catch and by-catch of juvenile yellowfin tuna and other stocks of living marine resources related to the purse-seine tuna fishery in the Agreement Area and establish measures in accordance with Article VI to,

inter alia

, avoid, reduce and minimise the by-catch of juvenile yellowfin tuna and by-catch of non-target species, in order to ensure long-term sustainability of all these species, taking into consideration the interrelationships among species in the ecosystem.

Article V

International Dolphin Conservation Programme

Pursuant to the International Dolphin Conservation Programme and in consideration of the objectives of this Agreement, the Parties shall,

inter alia

limit total incidental dolphin mortality in the purse-seine tuna fishery in the Agreement Area to no more than five thousand annually, through the adoption and implementation of relevant measures, which shall include:

(a) the establishment of a system that provides incentives to vessel captains to continue to reduce incidental dolphin mortality, with the goal of eliminating dolphin mortality in this fishery;

(b) the establishment within the framework of the IATTC of a system of technical training and certification for fishing captains and crews on the gear and its use, as well as the techniques for the rescue and safety of dolphins;

(c) within the framework of the IATTC, the promotion and support of research to improve gear, equipment, and fishing techniques, including those used in the fishery for tunas associated with dolphins;

(d) the establishment of an equitable system for the assignment of dolphin mortality limits (DMLs), consistent with the per-year dolphin mortality caps, in accordance with Annexes III and IV;

(e) requiring their respective vessels that have been assigned a DML, or that otherwise operate in the Agreement Area, to comply with the operational requirements set forth in Annex VIII;

(f) the establishment of a system for the tracking and verification of tuna harvested with and without mortality or serious injury of dolphins, based on the elements set forth in Annex IX;

(g) the exchange of scientific research data collected by the Parties pursuant to this Agreement on a full and timely basis; and

(h) the conduct of research for the purpose of seeking ecologically sound means of capturing large yellowfin tunas not in association with dolphins;

establish per-stock, per-year dolphin mortality caps, and review and assess the effects of these caps, in accordance with Annex III; and

review the measures at a meeting of the Parties.

Article VI

Sustainability of living marine resources

Pursuant to Article IV, the Parties commit to develop and implement, within the framework of the IATTC, measures to ensure the long-term sustainability of living marine resources associated with the purse-seine tuna fishery in the Agreement Area, taking into consideration the interrelationships among species in the ecosystem. To this end, the Parties shall,

inter alia

develop and implement a programme for assessing, monitoring and minimising by-catch of juvenile tuna and non-target species in the Agreement Area;

to the maximum extent practicable, develop and require the use of selective, environmentally safe and cost-effective fishing gear and techniques;

require that their vessels operating in the Agreement Area release alive incidentally caught sea turtles and other threatened or endangered species, to the maximum extent practicable; and

request the IATTC to initiate investigations to assess whether the fishing capacity of vessels fishing in the Agreement Area poses a threat to the sustainability of tuna stocks and other living marine resources associated with the fishery and, if so, examine possible measures and recommend their adoption whenever appropriate.

Article VII

Implementation at the national level

Each Party shall adopt, in accordance with its laws and procedures, the necessary measures to ensure the implementation of and compliance with this Agreement including, as appropriate, the adoption of relevant laws and regulations.

Article VIII

Meeting of the Parties

1. The Parties shall meet periodically to consider matters pertaining to the implementation of this Agreement and to make all decisions relevant thereto.

2. The ordinary meeting of the Parties shall take place at least once a year, preferably in conjunction with the IATTC meeting.

3. The Parties may also hold extraordinary meetings when deemed necessary. These meetings shall be convened at the request of any Party, provided that such request is supported by a majority of the Parties.

4. The meeting of the Parties shall be held when a quorum is present. Quorum is reached when a majority of the Parties are present. This rule shall also apply to meetings of subsidiary organs established under this Agreement.

5. The meetings shall be held in Spanish and English, and the documents of the meeting of the Parties shall be produced in both these languages.

Article IX

Decision making

All decisions made by the Parties at meetings convened pursuant to Article VIII shall be by consensus.

Article X

Scientific Advisory Board

The functions of the Scientific Advisory Board, established pursuant to the La Jolla Agreement, shall be those set forth in Annex V. The Scientific Advisory Board shall be composed and shall operate in accordance with the provisions of Annex V.

Article XI

National Scientific Advisory Committees

1. Each Party shall, in accordance with its laws and procedures, establish a National Scientific Advisory Committee (NATSAC) of qualified experts, operating in their individual capacities, from the public and private sectors, and from non-governmental organisations including,

inter alia

, qualified scientists.

2. The functions of the NATSACs shall be,

inter alia

, those set forth in Annex VI.

3. The Parties shall ensure that the NATSACs shall cooperate through regular and timely meetings in the review of data and the status of stocks, and in the development of advice for achieving the objectives of this Agreement. Such meetings shall take place at least once a year in conjunction with the ordinary meeting of the Parties.

Article XII

International Review Panel

The functions of the International Review Panel (IRP), established pursuant to the La Jolla Agreement, shall be those set forth in Annex VII. The IRP shall be composed and shall operate in accordance with the provisions of Annex VII.

Article XIII

On-Board Observer Programmes

The On-Board Observer Programme established pursuant to the La Jolla Agreement shall operate in accordance with Annex II.

Article XIV

Role of the IATTC

Envisioning that the IATTC shall have an integral role in coordinating the implementation of this Agreement, the Parties shall,

inter alia

, request the IATTC to provide secretariat support and to perform such other functions as are set forth in this Agreement or are agreed upon pursuant to this Agreement.

Article XV

Financing

The Parties shall contribute to the expenses necessary to achieve the objectives of this Agreement, through the establishment and collection of vessel fees, the level of which shall be determined by the Parties, without prejudice to other voluntary financial contributions.

Article XVI

Compliance

1. Each Party shall ensure with respect to vessels under its jurisdiction effective compliance with the measures set forth in this Agreement or adopted pursuant thereto. In particular, each Party shall ensure, through,

inter alia

, an annual certification and inspection programme, that vessels subject to its jurisdiction comply with:

(a) the operational requirements established in Annex VIII; and

(b) the on-board observer requirements established in Annex II.

2. In respect of violations, each Party, taking into consideration the recommendations of the IRP, shall apply, consistent with its national laws, sanctions of sufficient gravity as to be effective in securing compliance with the provisions of this Agreement and of measures adopted pursuant thereto and to deprive offenders of the benefits accruing from their illegal activities. Such sanctions shall, for serious offences, include refusal, suspension or withdrawal of the authorisation to fish.

3. The Parties shall establish incentives for the captains and crews of vessels, with the view to enhancing compliance with this Agreement and its objectives.

4. The Parties shall adopt cooperative measures to ensure compliance with this Agreement, building on decisions that have been taken under the La Jolla Agreement.

5. Each Party shall promptly inform the IRP of enforcement actions it has taken pursuant to this Agreement, and the results thereof.

Article XVII

Transparency

1. The Parties shall promote transparency in the implementation of this Agreement, including through public participation, as appropriate.

2. Representatives from intergovernmental organisations and representatives from non-governmental organisations concerned with matters relevant to the implementation of this Agreement shall be afforded the opportunity to take part in meetings of the Parties convened pursuant to Article VIII as observers or otherwise, as appropriate, in accordance with the guidelines and criteria set forth in Annex X. Such intergovernmental organisations and non-governmental organisations shall have timely access to relevant information, subject to procedural rules on access to such information that the Parties may adopt.

Article XVIII

Confidentiality

1. The meeting of the Parties shall establish rules of confidentiality for all bodies given access to information pursuant to this Agreement.

2. Notwithstanding any confidentiality rules which may be adopted in accordance with paragraph 1 above, any persons with access to such confidential information may disclose such information in connection with legal or administrative proceedings, if requested by a competent authority of the Party concerned.

Article XIX

Cooperation with other organisations or arrangements

The Parties shall cooperate with subregional, regional and global fishery conservation and management organisations and arrangements with the goal of promoting the achievement of the objectives of this Agreement.

Article XX

Settlement of disputes

1. The Parties shall cooperate in order to prevent disputes. Any Party may consult with one or more other Parties about any dispute related to the interpretation or application of the provisions of this Agreement to reach a solution satisfactory to all as quickly as possible.

2. If a dispute is not settled through such consultation within a reasonable period, the Parties in question shall consult among themselves as soon as possible in order to settle the dispute through any peaceful means they may decide upon in accordance with international law.

Article XXI

Rights of States

No provision of this Agreement may be interpreted in such a way as to prejudice or undermine the sovereignty, sovereign rights or jurisdiction exercised by any State in accordance with international law, as well as its position or views with regard to matters relating to the law of the sea.

Article XXII

Non-Parties

1. The Parties shall encourage all States and regional economic integration organisations referred to in Article XXIV of this Agreement that are not Parties to become Parties to this Agreement or to adopt laws and regulations consistent with it.

2. The Parties shall cooperate, in accordance with this Agreement and international law, to deter vessels flying the flags of States that are not Parties from carrying out activities that undermine the effectiveness of this Agreement. To this end, the Parties shall,

inter alia

, call to the attention of non-Parties such activities by their vessels.

3. The Parties shall exchange information among themselves, either directly or through the Director, with respect to activities of vessels flying the flags of non-Parties that undermine the effectiveness of this Agreement.

Article XXIII

Annexes

The Annexes form an integral part of this Agreement and, unless expressly provided otherwise, a reference to this Agreement includes a reference to the Annexes relating thereto.

Article XXIV

Signature

This Agreement is open for signature at Washington from 21 May 1998 until 14 May 1999 by States with a coastline bordering the Agreement Area and by States or regional economic integration organisations which are members of the IATTC or whose vessels fish for tuna in the Agreement Area while the Agreement is open for signature.

Article XXV

Ratification, acceptance or approval

This Agreement is subject to ratification, acceptance or approval by the signatories in accordance with their domestic laws and procedures.

Article XXVI

Accession

This Agreement shall remain open to accession by any State or regional economic integration organisation that meets the requirements in Article XXIV, or is otherwise invited to accede to the Agreement on the basis of a decision by the Parties.

Article XXVII

Entry into force

1. This Agreement shall enter into force upon deposit of the fourth instrument of ratification, acceptance, approval or accession with the depositary.

2. After the date referred to in paragraph 1, with respect to each State or regional economic integration organisation that meets the requirements of Article XXVI, the Agreement will enter into force for each State or regional economic integration organisation upon deposit of its instrument of ratification, acceptance, approval or accession.

Article XXVIII

Reservations

No reservations may be made to this Agreement.

Article XXIX

Provisional application

1. This Agreement shall be applied provisionally by a State or regional economic integration organisation which consents to its provisional application by so notifying the depositary in writing. Such provisional application shall become effective from the date of receipt of the notification.

2. Provisional application by a State or regional economic integration organisation shall terminate upon the entry into force of this Agreement for that State or regional economic integration organisation or upon notification by that State or regional economic integration organisation to the depositary in writing of its intention to terminate provisional application.

Article XXX

Amendments

1. Any Party may propose an amendment to this Agreement by providing to the depositary the text of a proposed amendment at least 60 days in advance of a meeting of the Parties. The depositary shall provide a copy of this text to all other Parties.

2. Amendments to this Agreement that are adopted by consensus at a meeting of the Parties shall enter into force on the date on which all Parties have deposited instruments of ratification, acceptance or approval with the depositary.

3. Unless the Parties decide otherwise, the Annexes to this Agreement may be amended, by consensus, at any meeting of the Parties. Unless otherwise agreed, amendments to an Annex shall enter into force for all Parties upon adoption.

Article XXXI

Withdrawal

Any Party may withdraw at any time after 12 months from the date on which this Agreement entered into force with respect to that Party by giving written notice of withdrawal to the depositary. The depositary shall inform the other Parties of the withdrawal within 30 days of receipt of such notice. The withdrawal shall become effective six months after receipt of such notice.

Article XXXII

Depositary

The original texts of this Agreement shall be deposited with the Government of the United States of America, which shall send certified copies thereof to the signatories and the Parties thereto, and to the Secretary-General of the United Nations for registration and publication, pursuant to Article 102 of the Charter of the United Nations.

IN WITNESS WHEREOF, the undersigned plenipotentiaries, having been duly authorised by their respective Governments, have signed this Agreement.

DONE AT Washington DC, on this twenty-first day of May 1998, in English and Spanish, both texts being equally authentic.

ANNEX I

AGREEMENT AREA

The Agreement Area comprises the area of the Pacific Ocean bounded by the coastline of North, Central and South America and by the following lines:

(a) the 40

N parallel from the coast of North America to its intersection with the 150

W meridian;

(b) the 150

W meridian to its intersection with the 40

S parallel;

S parallel to its intersection with the coast of South America.

ANNEX II

ON-BOARD OBSERVER PROGRAMME

The Parties shall maintain an On-Board Observer Programme in accordance with the provisions of this Annex. As a component of this Programme, each Party may also maintain its own national observer programme, in accordance with the provisions of this Annex.

Each Party shall require its vessels with a carrying capacity greater than 363 metric tonnes (400 short tonnes) and that operate in the Agreement Area, to carry an observer during each fishing trip in the Agreement Area. At least 50 % of the observers on the vessels of each Party shall be IATTC observers; the remainder may be from the Party's national observer programme, based on criteria set forth in this Annex as well as any other criteria established by the meeting of the Parties.

All observers must:

(a) have completed the technical training required by the guidelines that the Parties establish;

(b) be a national of one of the Parties or a member of the scientific staff of the IATTC;

(d) be included in a list of observers maintained by the IATTC or, if part of a national observer programme, by the Party maintaining such programme.

The duties of the observers shall be,

inter alia

(a) to gather all pertinent information on the fishing operations of the vessel to which the observer is assigned as is necessary for implementation of this Agreement;

(b) to make available to the captain of the vessel to which the observer is assigned all measures established by the Parties pursuant to this Agreement;

(c) to make available to the captain of the vessel to which the observer is assigned the record of dolphin mortality of that vessel;

(d) to prepare reports on information gathered in accordance with this paragraph, and provide the vessel captain with the opportunity to include in such reports any information the captain might deem to be relevant;

(e) to provide such reports to the Director or the pertinent national programme, to be used in accordance with Annex VII, paragraph 1, of this Agreement; and

(f) to perform such other functions as agreed by the Parties.

The observers shall:

(a) except to the extent required under paragraphs 4(d) and 4(e) of this Annex, treat as confidential all information with respect to the fishing operations of the vessels and of the vessel owners, and accept this requirement in writing as a condition of appointment as an observer;

(b) comply with requirements established in the laws and regulations of the Party which exercises jurisdiction over the vessel to which the observer is assigned, insofar as such requirements are not incompatible with the provisions of this Annex;

(c) refrain from issuing or endorsing any certificate or other documentation relating to the fishing operations of the vessel, except as may be approved by the Parties; and

(d) respect the hierarchy and general rules of behaviour which apply to all vessel personnel, provided such rules do not interfere with the duties of the observers described in this Annex and with the obligations of vessel personnel set forth in paragraph 6 of this Annex.

The responsibilities of the Parties and vessel captains regarding observers shall include the following,

inter alia

(a) observers shall be allowed access to vessel personnel and to the gear and equipment specified in Annex VIII;

(b) upon request, observers shall also be allowed access to the following equipment, if present on the vessel to which they are assigned, in order to facilitate the carrying out of their duties set forth in paragraph 4:

(i) satellite navigation equipment;

(ii) radar display viewing screens when in use;

(iii) high-powered binoculars including during the chase and encirclement of dolphins to facilitate identification, except when in use by vessel personnel; and

(iv) electronic means of communication;

(c) observers shall have access to the vessel working deck during net and fish retrieval and to any specimen, alive or dead, that is brought aboard the vessel during a set in order to collect biological samples in accordance with the On-Board Observer Programme or as otherwise required by competent national authorities as part of a national observer programme;

(d) observers shall be provided accommodations, including lodging, food, and adequate sanitary facilities equal to those of the crew;

(e) observers shall be provided with adequate space on the bridge or pilothouse for clerical work, as well as space on deck adequate for carrying out observer duties; and

(f) the Parties shall ensure that captains, crew, and vessel owners do not obstruct, intimidate, interfere with, influence, bribe, or attempt to bribe an observer in the performance of his or her duties.

The Parties shall:

(a) ensure that any observers from their respective national programmes collect information in the same manner as is required for IATTC observers; and

(b) provide to the Director copies of all raw data collected by observers from their respective national programmes in a timely manner upon the conclusion of the trip during which the data were collected, along with summaries and reports comparable to those provided by IATTC observers.

In a timely manner after each trip observed by an IATTC observer, the Director, in a manner consistent with any applicable confidentiality requirements, is requested to provide to the Party under whose jurisdiction the vessel fished, copies of all raw data, summaries, and reports pertaining to the trip.

Notwithstanding other provisions of this Annex, if the Director determines that the placement of an observer from the On-Board Observer Programme is not practical, a vessel subject to the jurisdiction of a Party that fishes in the Agreement Area without setting on dolphins may use a trained observer from another international programme, provided such programme is approved by the Parties, to collect pertinent information for the On-Board Observer Programme, and to confirm to the Director that such vessel does not set on dolphins.

10.

No observer shall be assigned to a vessel with a DML unless the vessel's fishing captain is on the list of qualified captains maintained in accordance with Annex VII, paragraph 1(e).

11.

Observers from the On-Board Observer Programme may be assigned to vessels of non-Parties at the discretion of the Director, provided the vessel and the vessel captain comply with all the requirements of this Annex, and all other applicable requirements of this Agreement. The Director is requested to inform the Parties of any such assignment in a timely manner.

12.

Fees

(a) The Parties shall establish the amount of the annual vessel fees to cover the costs of the On-Board Observer Programme. The fees shall be calculated on the basis of the carrying capacity of each vessel or any other standard specified by the Parties.

(b) At the time a Party submits to the Director the list of vessels under Annex IV to this Agreement, it shall also submit payment, in US dollars, for the fees established under paragraph 11(a) of this Annex, specifying which vessels the payment covers.

(c) No observer shall be assigned to a vessel for which the fees, as required under paragraph 11(b) of this Annex, have not been paid.

13.

Observer data

(a) Observer data shall be the basis to determine if:

(i) a vessel has met or exceeded its DML;

(ii) a Party has met or exceeded its national DML; or

(iii) the fleet has met or exceeded a per-stock, per-year dolphin mortality cap.

(b) Any Party wishing to object to the observer data must provide to the IRP the reasons for and the evidence to support such objection.

(c) The IRP will review the evidence provided by the Party and provide a recommendation to the meeting of the Parties for their consideration.

(d) The Parties will review the evidence and the recommendation of the IRP and make a decision as to the merits of the objection and whether the observer data should be modified.

ANNEX III

PER-STOCK, PER-YEAR DOLPHIN MORTALITY CAPS

The Parties shall establish, at a meeting convened pursuant to Article VIII of this Agreement, a per-stock, per-year dolphin mortality cap for each stock of dolphins, determined by the meeting of the Parties, based on the best available scientific evidence, of between 0,2 % and 0,1 % of the Minimum Estimated Abundance (N

min

) as calculated by the US National Marine Fisheries Service or equivalent calculation standard as might be developed or recommended by the Scientific Advisory Board but in no event shall the total annual incidental dolphin mortality exceed 5 000, consistent with the provisions of this Agreement. In the year 2001 and thereafter, the per-stock, per-year cap shall be 0,1 % of N

min

The Parties shall conduct in 1998, or as soon as possible thereafter, a scientific review and assessment of progress toward the year 2001 objective, and consider recommendations as appropriate. Up to the year 2001, in the event that annual mortality of 0,2 % of N

min

is exceeded for any stock of dolphins, all sets on that stock and on any mixed schools containing members of that stock shall cease for that year. Beginning in the year 2001, in the event that annual mortality of 0,1 % of N

min

is exceeded for any stock of dolphins, all sets on that stock and on any mixed schools containing members of that stock shall cease for that year. In the event that annual mortality of 0,1 % of N

min

is exceeded for either eastern spinner or north-eastern spotted dolphin stocks, the Parties shall conduct a scientific review and assessment and consider further recommendations.

For purposes of this Agreement, the Parties shall use the current estimate of absolute abundance for the dolphin stocks of the Eastern Pacific Ocean presented by Wade and Gerrodette to the International Whaling Commission in 1992, based on US National Marine Fisheries Service research vessel data for the period 1986 to 1990, until the Parties agree on an updated set of figures. Such updates could result from the analysis of data from future research cruises and indices of abundance and other relevant scientific data from the Parties, the IATTC and other scientific organisations.

The Parties shall establish a system, based on real-time observer reporting, to ensure effective implementation and compliance with the per-stock, per-year dolphin mortality cap.

Within six months of the entry into force of this Agreement, the Parties shall establish a system for the allocation of the per-stock, per-year dolphin mortality cap for each stock for the ensuing year and years thereafter. This system shall provide for the distribution of the mortality limits in paragraph 1 of this Annex among vessels of the Parties which are eligible for Dolphin Mortality Limits, in accordance with Annex IV. When establishing this system, the Parties shall consider the best available scientific evidence on the distribution and abundance of the stocks in question, and other variables which the meeting of the Parties shall define at a later date.

ANNEX IV

DOLPHIN MORTALITY LIMITS (DMLS)

I. ASSIGNMENT OF DMLS

(a) Each Party shall provide to the other Parties, through the Director, prior to 1 October of each year, a list of vessels under its jurisdiction of carrying capacity greater than 363 metric tonnes (400 short tonnes) that have requested a full-year DML for the following year, indicating those other vessels that are likely to be operating in the Agreement Area in the following year.

(b) Each Party shall provide to the other Parties, through the Director, prior to 1 April of each year, a list of vessels under its jurisdiction of carrying capacity greater than 363 metric tonnes (400 short tonnes) that have requested a second-semester DML for that same year.

The IRP shall, by 1 November of each year, or later if agreed by the IRP, provide to the Parties a list of qualified applicant vessels eligible to receive a full-year DML for the following year. For second-semester DMLs, the IRP shall, by 1 May of each year, or later if agreed by the IRP, provide to the Parties a list of qualified applicant vessels eligible to receive a second-semester DML for that same year.

For purposes of this Agreement, a vessel shall be considered qualified if:

(a) it has been certified by the relevant national authorities to be in possession of all of the dolphin safety gear and equipment required in Annex VIII;

(b) its captain and crew have received approved training in dolphin release and rescue techniques comparable to a standard established by the meeting of the Parties;

(d) it has a captain considered qualified due to his or her prior record of performance; and

(e) the vessel is not deemed to be disqualified under Section II of this Annex.

A vessel shall not be considered qualified under paragraph 2 if, on the date of the request pursuant to paragraph 1 of this Annex, the vessel is operating under the jurisdiction of a Party whose applicable laws and regulations prohibit vessels under its jurisdiction from fishing for tuna in association with dolphins; nor shall DMLs be assigned to any Party in order to provide permits for fishing in the Agreement Area to vessels flying the flag of another State whose applicable laws and regulations prohibit vessels under its jurisdiction from fishing for tuna in association with dolphins.

98 %, or such other unreserved portion as the Parties might determine, of the overall dolphin mortality limit for the fishery (5 000 or such other lower limit as the Parties might determine) shall be used to calculate into an average individual vessel DML (ADML) and distributed among the Parties for the succeeding year, as set forth in paragraph 5 of this section.

The ADML shall be calculated by dividing the unreserved portion of the overall DML for the fishery established under paragraph 4 by the total number of qualified vessels requesting full-year DMLs. The distribution of DMLs among Parties shall be determined by multiplying the ADML by the number of qualified vessels requesting full-year DMLs and operating under the jurisdiction of each Party.

The remaining 2 %, or such other portion as the Parties might determine, of the overall DML for the fishery shall be maintained as a separate Reserve DML Allocation (RDA), to be managed at the discretion of the Director. Any Party may request that the Director assign DMLs from such RDA to vessels fishing under its jurisdiction which do not normally fish for tuna in the Agreement Area but which may, from time to time, desire to participate in the fishery in the Agreement Area on a limited basis, provided that such vessels and their captains and crews meet the operational and training requirements set forth in Annex VIII of this Agreement and that the requirements set forth in paragraphs 2 and 3, of this section are met. Any accidental mortalities caused by vessels operating in the Agreement Area under the jurisdiction of any of the Parties that have not requested DMLs for their fleet shall also be deducted from this RDA.

No DML shall be assigned to a vessel unless, in the last year that it had a DML prior to the year in which it is applying for a DML, at least 5 % of the total number of the sets made by the vessel were on dolphins, and the average catch of yellowfin in its sets on dolphins was at least 3 metric tonnes per set. Otherwise, the vessel cannot receive a DML in the following year, unless there are reasons of force majeure, as agreed pursuant to Annex IV of this Agreement, that prevented it from complying with these requirements. A vessel applying for a DML for the first time shall not be subject to this provision.

No DML shall be assigned to a vessel which has been determined by the Parties to have engaged in a pattern of violations, as confirmed through enforcement actions taken against such vessel by the Party under whose jurisdiction it operates, which diminish the effectiveness of the International Dolphin Conservation Programme.

10.

The individual Parties with qualified vessels that will be fishing for tuna in association with dolphins shall manage their DMLs in a responsible manner, provided that no individual vessel shall receive a total annual DML in excess of the DML established for 1997 by the IRP, and reported in the minutes of the 14

meeting of the IRP, held on 19 and 20 February 1997, under the La Jolla Agreement. No Party shall allocate to the total of its qualified vessels a greater number of DMLs than those that such Party has been allocated under Sections I and III of this Annex. No initial assignment of DMLs may result in any vessel receiving a DML in excess of the ADML unless its performance in reducing dolphin mortalities, as measured by the IRP based upon the previous two years' data, is better than the average performance of the international fleet as a whole. No initial assignment of DMLs may result in any vessel receiving a DML in excess of the ADML if, during the previous two years, it has committed any of the infractions identified in Section III, paragraph 4 of this Annex, subject to the conditions established pursuant to that paragraph.

11.

Should the total mortalities of the fleet of any Party meet or exceed the total amount of DML distributed to it pursuant to this Annex, fishing for tuna in association with dolphins shall cease for all vessels operating under the jurisdiction of that Party.

12.

Each Party shall, no later than 1 February of each year, notify the Director of the initial allocation of its distributed DML among its fleet. No vessel may begin fishing for tunas associated with dolphins until the Director receives such notification.

II. UTILISATION OF DMLS

Any vessel which is assigned a full-year DML and does not set on dolphins prior to 1 April of that year, or which is assigned a second-semester DML and does not set on dolphins by 1 October of that year, or which is assigned a per-trip DML from the RDA and does not set on dolphins during that trip, unless as a result of force majeure or extraordinary circumstances, as agreed by the IRP, shall lose its DML and may not set on dolphins for the remainder of that year. Notwithstanding the provision in Annex VII, paragraph 9, regarding decision making by the IRP, a request by a Party, on behalf of any of its vessels, for an exemption due to force majeure or extraordinary circumstances, shall be considered to be agreed by the IRP unless a majority of the government members of the IRP supports any objection, made formally and with cause by any other Party, to any such request. All requests for exemption must be sent to the secretariat by 1 April, and any formal objections must be sent to the Secretariat by 20 April. Any such vessel that loses its DML on two consecutive occasions shall not be eligible to receive a DML for the following year.

Within six months following entry into force of this Agreement, the IRP, in cooperation with the scientific staff of the IATTC, shall develop and recommend a system by which to measure DML utilisation in order to deter frivolous requests for DMLs. Such recommended system shall be presented for consideration by the meeting of the Parties.

III. USE OF FORFEITED OR UNUTILISED DMLS

After 1 April of each year, any DMLs which the Director determines will not be utilised pursuant to Section II or which have otherwise been forfeited shall be reallocated to the Parties consistent with this Section.

No later than 1 May of each year, the full-year DMLs assigned to those vessels that have not utilised them, pursuant to Section II, or have otherwise forfeited them, shall be redistributed among the Parties by the Director, consistent with the formula established pursuant to Section I, paragraph 5, but after first adjusting such formula as set forth in subparagraphs (a), (b) and (c) below. Such additional DMLs may be reallocated by the individual Parties among qualified vessels under the jurisdiction of such Party, subject to limitations and conditions set forth in paragraphs 3, 4, 5, 6 and 7 of this section.

(a) In performing the reallocation, any vessels that may have lost or otherwise forfeited DMLs under this paragraph, and any vessels requesting second-semester DMLs after the deadline set forth in Section I, paragraph 1, shall not be considered;

(b) Prior to establishing the number of DMLs available for reallocation under this section, adjustment shall be made by subtracting from such number any observed dolphin mortalities caused by those vessels that lost their DMLs under Section II, paragraph 1.

(c) Prior to establishing the number of DMLs available for reallocation under this section, the Director shall deduct one third of the ADML calculated pursuant to Section I, paragraph 5, for allocation to each vessel requesting a second-semester DML prior to the deadline established pursuant to Section I, paragraph 1. Such second-semester DMLs shall be allocated by the Director to the Parties proportionately, based upon the jurisdiction of respective Parties over vessels covered under this subparagraph. The second-semester DMLs assigned to such vessels by the Parties under whose jurisdiction they operate shall not exceed one-third of the ADML calculated pursuant to Section I, paragraph 5. Such vessels may not begin setting on dolphins before 1 July of that year.

Any Party may adjust the DMLs of its qualified vessels which meet the criteria set forth in Section I, paragraph 2, of this Annex either upward or downward, provided that no vessel is assigned an adjusted DML in excess of 50 % above its initial DML, unless its performance in successfully reducing dolphin mortalities, as measured by the IRP, is in the upper 60 % of the performance of the international fleet as a whole, as determined by the IRP, based upon the prior year's data. A Party making such an adjustment shall so notify the Director no later than 20 May and no such adjustment shall take effect until the Director has been notified.

No vessel may have its initial DML adjusted upward by any Party if the IRP had determined, and the Party with jurisdiction over the vessel concurs, that during that year or the previous two years:

(a) the vessel fished without an observer;

(b) the vessel set on dolphins without a DML;

(d) the vessel knowingly set on a banned dolphin stock;

(e) the captain, crew, or the vessel owner committed any of the actions described in Annex II, paragraph 6(f) of this Agreement;

(f) the vessel made a sanctionable night set; or

(g) the vessel used explosives during any phase of a fishing operation involving dolphins.

For infractions described in (a), (b), (c), (d), (f), and (g), a Party will be deemed to have provided such concurrence if it does not object to the IRP within six months of a referral of a possible violation from the IRP. For the infraction described in (e), a Party will be deemed to have provided such concurrence if it does not object to the IRP within 12 months of such referral.

A notification by a Party that the possible infraction is being investigated shall be considered to be an objection for the purposes of this paragraph, provided that the notification is received by the secretariat prior to the expiration of the relevant 6 or 12 month period.

In such cases, a Party will be deemed to have provided its concurrence to the infraction if that Party does not conclude its investigation and report the final results to the IRP within a period of two years from the date on which the possible infraction was originally referred to the Party, except as provided in the following paragraph.

If it is not possible for the Party in question to complete the investigation within this two-year period, the Party shall provide an update to the IRP of the status of the investigation and its estimated date of completion. The Party shall provide such a report at each subsequent meeting of the IRP until the case is resolved. If a report is not made, that Party will be deemed to have concurred with the possible infraction. The secretariat shall inform the relevant Party about the cases for which the deadline is about to lapse and for which the information needs to be updated.

No vessel may be eligible to receive an additional allocation of DML by a Party unless it has on board all of the required dolphin safety gear and equipment throughout the year; and no such upward allocation may be made for a vessel which has exceeded its initial DML prior to 1 April, unless due to force majeure or extraordinary circumstances, as agreed by the meeting of the Parties, in consultation with the IRP.

For any vessel exceeding its DML, as it may be adjusted pursuant to this Annex, during a given year, the amount of such excess, plus an additional 50 % of that amount, unless the IRP recommends otherwise, shall be deducted from DMLs assigned to that vessel by a Party under whose jurisdiction the vessel operates over subsequent years in a manner prescribed by the IRP.

If at any time a vessel meets or exceeds its DML, as it may be adjusted pursuant to this Annex, that vessel shall immediately cease all fishing for tuna in association with dolphins.

IV. IMPLEMENTATION

The Parties shall ensure that in the implementation of the DML system established by this Annex, the per-stock, per-year dolphin mortality caps, as specified in Annex III, are not exceeded.

In cases involving unusual or extraordinary circumstances not foreseen in this Annex, the Parties, as recommended by the IRP, may take such measures as are necessary, consistent with the provisions of this Annex, in order to implement the DML system.

If the mortality in any given year increases above levels which the IRP considers to be significant, the IRP shall recommend that the Parties hold a meeting to review and identify the causes of mortality and formulate options to address such causes.

ANNEX V

SCIENTIFIC ADVISORY BOARD

The Parties shall maintain the Scientific Advisory Board of technical specialists established pursuant to the La Jolla Agreement to assist the Director in matters regarding research to:

(a) modify current purse-seine technology to make it less likely to cause dolphin mortality; and

(b) seek alternative means of capturing large yellowfin tuna.

The functions and responsibilities of the Board shall be to:

(a) meet at least once each year;

(b) review plans, proposals, and research programmes of the IATTC to seek to meet the objectives set forth in paragraph 1 above;

(c) provide advice to the Director concerning the design, facilitation, and guidance of research to achieve the objectives set forth in paragraph 1 above; and

(d) assist the Director in locating sources of funding to conduct such research.

The Board will consist of no more than 10 members, no more than two of whom shall be from any one country, selected from the international community of scientists, fishing gear experts, the fishing industry, and environmentalists. The members will be proposed by the Director on the basis of their technical expertise, and each one will be subject to approval by the Parties.

ANNEX VI

NATIONAL SCIENTIFIC ADVISORY COMMITTEES

The functions of the National Scientific Advisory Committees (NATSACs), established in accordance with Article XI of this Agreement, shall be,

inter alia

, to:

— receive and review relevant data, including data provided to national authorities by the Director;

— advise and recommend to their governments measures and actions that should be undertaken to conserve and manage stocks of living marine resources in the Agreement Area;

— make recommendations to their governments regarding research needs, including research concerning ecosystems, the effects of climatic, environmental and socioeconomic factors, the effects of fishing as well as on measures contemplated in this Agreement, fishing techniques and practices, and gear technology research, including the development and use of selective environmentally safe and cost-effective fishing gear; and the coordination and facilitation of such research;

— conduct scientific reviews and assessments by the year 1998 or as soon as possible thereafter, regarding progress toward the year 2001 objective of achieving a per-stock, per-year cap of 0,1 % N

min

, and make appropriate recommendations to their governments concerning these reviews and assessments, as well as additional assessments in the year 2001 consistent with this Agreement;

— ensure the regular and timely full exchange of data among the Parties and the NATSACs on catch of tuna and associated species and by-catch, including dolphin mortality data, for the purposes of developing conservation and management recommendations to their governments as well as recommendations for enforcement and scientific research while not violating the confidentiality of business confidential data;

— consult with other experts as necessary for the purpose of gathering as much information as possible that might be useful for achieving the objectives of this Agreement; and

— perform such other functions as their respective governments might assign to them.

Reports of the NATSACs, including of their cooperative meetings, shall be made available to the Parties and the public, in a manner consistent with any applicable confidentiality requirements.

The Director may convene, in addition to the meetings pursuant to Article XI, paragraph 3, meetings with the purpose of facilitating consultation among the NATSACs.

The functions of the meetings of the NATSACs shall be to:

— exchange information;

— review IATTC research to achieve the objectives of this Agreement; and

— make recommendations to the Director concerning the future research programme to achieve the objectives of this Agreement.

The NATSAC members from any Party who attend the meeting shall be designated by that Party.

ANNEX VII

INTERNATIONAL REVIEW PANEL

In compliance with Article XII of this Agreement, the International Review Panel (IRP) shall have the following functions:

(a) each year compile a list of the vessels that qualify for DMLs as agreed in Annex IV;

(b) analyse the reports submitted to the IRP, regarding all tuna-fishing trips made by vessels covered by this Agreement;

(d) inform each Party, through the Director, of possible infractions committed by vessels flying its flag or operating under its jurisdiction, and receive from that Party information on the actions taken;

(e) maintain an updated report on the actions taken by the Parties to provide adequate training for fishing captains, and maintain a list of those fishing captains determined to be complying with established performance requirements, based on the information provided by each of the Parties;

(f) recommend to the meeting of the Parties pertinent measures for achieving the objectives of this Agreement, in particular those related to the use of gear, equipment and fishing techniques, considering improvements in technologies, as well as the adoption of appropriate incentives for captains and crews to meet the objectives of this Agreement;

(g) prepare and provide the meeting of the Parties an annual report on those aspects of the operation of the fleet relating to the implementation of this Agreement, including a summary of possible infractions identified and the actions taken by the Parties;

(h) recommend to the Parties ways to progressively reduce dolphin mortality incidental at the fishery in the Agreement Area; and

(i) perform other functions as assigned by the meeting of the Parties.

The IRP shall be made up of representatives of the Parties (governmental members), three representatives of non-governmental environmental organisations with recognised experience in matters pertaining to this Agreement and with offices in the territory of a Party, and three representatives from the tuna industry that operates under the jurisdiction of any of the Parties in the Agreement Area (non-governmental members).

The non-governmental members shall have a two-year term of membership, starting at the first meeting of the IRP immediately after their election.

The non-governmental members will be elected in accordance with the following procedure:

(a) prior to the expiration of the term of a non-governmental member, the relevant non-governmental organisations may present candidates' nominations 60 days before the expiration of the term to the Director. A curriculum vitae should accompany each nomination. The current non-governmental members may be nominated for additional periods;

(b) once the nominations are received, the Director shall transmit them in writing to the Parties within 10 days. The Parties should send their votes to the Director within 20 days of the transmittal of the nominations by the Director. In this election, the three nominees from each non-governmental sector who receive the most votes shall be elected; the nominee who receives the fourth largest number of votes shall be designated the alternate member. In the case of a tie, the Director should solicit a new vote from the Parties to determine the member and the alternate;

(c) if a non-governmental position becomes permanently vacant, because of death, resignation, or failure to participate in three consecutive meetings of the IRP, the alternate shall fill the position for the remainder of that position's term. The candidate who received the fifth largest number of votes in the elections referred to in paragraphs (a) and (b) shall be designated the alternate member. If additional vacancies occur, the Director shall inform the relevant non-governmental organisations so that new candidates may be submitted for an election process consistent with that described in paragraphs (a) and (b);

(d) each alternate may attend the meetings of the IRP, but shall have no speaking rights if all the members of his/her respective sector are present.

The IRP shall hold at least three meetings a year, one of which will preferably be held on the occasion of the ordinary meeting of the Parties.

The IRP may convene additional meetings at the request of at least two of the Parties, provided that a majority of the Parties support the request.

The IRP meetings shall be chaired by a Presider elected by the governmental members at the beginning of each meeting, who shall decide on matters of order. Any member shall have the right to ask that any decision made by the Presider be decided as specified in paragraph 9 of this Annex.

The meetings shall be in Spanish and English, and IRP documents shall also be produced in both languages.

The decisions at the meetings of the IRP shall be adopted by consensus among the governmental members.

10.

The following criteria shall be applied to attendance at IRP meetings:

(a) there shall be no restrictions on the number of persons a Party can include in its delegation to an IRP meeting;

(b) any IATTC Member State or signatory to this Agreement may be represented by an observer;

(c) any State not a member of the IATTC and any State or regional economic integration organisation not a signatory to this Agreement may be represented by an observer, with prior notification to IRP governmental members, unless any governmental member of the IRP objects in writing;

(d) the Director may invite representatives of intergovernmental organisations as observers, with prior notification to IRP members, unless any governmental member of the IRP objects in writing;

(e) in any cases referred to in (c) and (d) above, the Director shall not disclose the identity of the objecting Party;

(f) each observer is limited to two delegates, but may bring more with the approval of two-thirds of the governmental members of the IRP.

11.

In cases of urgency, and without prejudice to the provisions of paragraph 9 of this Annex, the IRP may take decisions by correspondence through a vote of the governmental members, under the following procedures:

(a) the proposal shall be circulated to all members of the IRP, in writing, with all pertinent documentation, at least 14 days before the proposed effective date of the resolution, action, or measure; the votes shall be transmitted to the Director no less than seven days before the proposed effective date;

(b) the proposal shall be considered urgent unless a simple majority of the governmental members objects in writing; the proposal shall be accepted unless any governmental member objects in writing; and

(c) the Director shall circulate the proposal as well as the accompanying documentation, receive and count the votes, and inform the IRP members of the results of a vote as soon as the voting closes.

12.

The Director will carry out the functions of the Secretary, which shall include:

(a) assisting in the convening and organisation of IRP meetings;

(b) presenting information required by the IRP for carrying out its functions and responsibilities, including observer IRP forms and field data forms providing information on the activities of the vessels, dolphin mortality, and the presence, condition, and use of the dolphin safety equipment and gear;

(d) providing to each Party, for its consideration, recommendations and information concerning possible infractions identified by the IRP for vessels under its jurisdiction;

(e) distributing to the IRP information received from Parties on the actions taken on possible infractions identified by the IRP;

(f) publishing the Annual Report of the IRP and making it available to the public, in accordance with the instructions given by the meeting of the Parties;

(g) presenting to the members of the IRP information received from the Parties referred to in paragraph 1(e) of this Annex; and

(h) carrying out other tasks necessary for the accomplishment of the IRP's functions, as assigned by the Parties.

13.

The rules of procedure of the IRP may be modified by the meeting of the Parties. Modifications may be recommended by the IRP.

14.

The members of the IRP and any other participants invited to attend IRP meetings as observers shall treat all the information presented at such meetings in accordance with the provisions of confidentiality set forth in Article XVIII of this Agreement.

ANNEX VIII

OPERATIONAL REQUIREMENTS FOR VESSELS

For the purposes of this Annex:

(a) ‘strip’ means a section of net that is approximately 6 fathoms deep;

(b) ‘backdown’ means the procedure for releasing captured dolphins by shifting the vessel's engine(s) into reverse during net retrieval, causing the net remaining in the water to form a channel, and the corkline at the apex of the channel to submerge;

(d) ‘sack-up’ means that part of the fishing process when the catch is concentrated near the surface for loading aboard the vessel.

Dolphin safety gear and equipment requirements

A vessel with a carrying capacity of more than 363 metric tonnes (400 short tonnes) operating in the Agreement Area shall:

(a) have a purse seine equipped with a dolphin safety panel (DSP) with the following characteristics:

(i) a minimum length of 180 fathoms (as measured before installation), except that the minimum length of the DSP in nets deeper than 18 strips must be determined in a ratio of 10 fathoms in length for each strip of net depth. The DSP must be installed so as to cover the backdown channel along the corkline, beginning at the outboard end of the last bow bunch pulled and continuing to at least two-thirds the distance from the apex of the backdown channel to the point where the net is secured at the stern. The DSP shall consist of small-mesh webbing not to exceed 1 1/4 inches (3,2 cm) stretched mesh, extending downward from the corkline to a minimum depth of two strips;

(ii) each end shall be identified with a highly visible marker;

(iii) any space between the corks or the corkline and the small mesh shall not exceed 1 3/8 inches (3,5 cm) in diameter;

(b) have at least three operable speedboats equipped with operable towing bridles or posts, and tow lines;

(d) have at least two operable facemasks suitable for underwater observation; and

(e) have an operable long-range floodlight with a minimum output of 140 000 lumens.

Dolphin protection and release requirements and prohibitions

A vessel with a carrying capacity of more than 363 metric tonnes (400 short tonnes) operating in the Agreement Area shall:

(a) perform backdown during every set in which dolphins are captured, until it is no longer possible to remove live dolphins from the net by this procedure. At least one crewman shall be deployed during backdown to aid in the release of dolphins;

(b) continue efforts to release any live dolphins remaining in the net after backdown, so that all live dolphins are released prior to the initiation of the sack-up procedure;

(d) avoid injuring or killing dolphins captured in the course of fishing operations;

(e) complete backdown no later than 30 minutes after sunset, as determined by an accurate and reliable source approved by the Parties. A set that does not meet this requirement is termed a ‘night set’;

(f) not use any type of explosive during any phase of a fishing operation involving dolphins (underwater flares are not considered to be explosives);

(g) cease setting on dolphins when its DML has been reached;

(h) not intentionally set on dolphins if the vessel does not have a DML; and

(i) perform a periodic net alignment to ensure the proper location of the dolphin safety panel during the backdown procedure, based on criteria established by the IRP.

It is emphasised that the above requirements should not lead to crewmen being placed in situations that present unnecessary risks to their personal safety.

Exceptions

(a) A vessel without a DML is exempt from the requirements of paragraph 2 of this Annex and from the obligation of carrying out the backdown manoeuvre mentioned in paragraph 3 of this Annex unless the Party with jurisdiction over that vessel determines otherwise.

(b) Any such vessel that captures dolphins accidentally shall attempt to release the dolphins, using every means at its disposal, including aborting the set, and taking into consideration the requirements set forth in paragraph 3 of this Annex.

Treatment of observers

Captains, crew, and other personnel shall comply with their responsibilities regarding the presence of observers aboard their vessels, as specified in Annex II, paragraph 6.

Vessels under 363 metric tonnes (400 short tonnes)

No vessel with a carrying capacity of 363 metric tonnes (400 short tonnes) or less may intentionally set on dolphins.

ANNEX IX

ELEMENTS OF A TUNA TRACKING AND VERIFICATION PROGRAMME

Pursuant to Article V, paragraph 1(f), the Parties shall establish a programme to track and verify tuna harvested by vessels in the Agreement Area, based on the following elements:

(a) the use of weight calculation for the purposes of tracking tuna caught, landed, processed and exported;

(b) additional measures to enhance current observer coverage, including the establishment of criteria for training and for improving monitoring and reporting capabilities and procedures;

(c) the designation of well location, procedures for sealing holds, procedures for monitoring and certifying both above and below deck, or through equally effective methods;

(d) the reporting, receipt, and database storage of radio and facsimile transmittals from vessels containing information related to the tracking and verification of such tuna;

(e) the shore-based verification and tracking of such tuna throughout the fishing, transhipment, and canning process by means of On-board Observer Programme trip records;

(f) the use of periodic audits and spot checks for caught, landed, and processed tuna products; and

(g) the provision of timely access to relevant data.

Each Party shall implement this programme in its respective territory, on vessels subject to its jurisdiction and in marine areas with respect to which it exercises sovereignty or sovereign rights and jurisdiction.

ANNEX X

GUIDELINES AND CRITERIA FOR THE PARTICIPATION OF OBSERVERS AT A MEETING OF THE PARTIES

The Director shall invite to meetings of the Parties convened pursuant to Article VIII intergovernmental organisations whose work is relevant to the implementation of this Agreement, as well as non-Parties whose participation may promote implementation of this Agreement.

Non-governmental organisations (NGOs) with recognised experience in matters pertaining to this Agreement shall be eligible to participate as observers in all meetings of the Parties convened pursuant to Article VIII except meetings held in executive session or meetings of Heads of Delegation.

Any NGO desiring to participate as an observer in a meeting of the Parties shall notify the Director of its desire to participate at least 50 days in advance of the meeting. The Director shall notify the Parties of the names of such NGOs at least 45 days prior to the beginning of the meeting.

If a meeting of the Parties is held with less than 50 days notice, the Director shall have greater flexibility concerning the timing of the sending of the invitations.

An NGO desiring to participate as an observer may do so unless a majority of the Parties formally objects for cause in writing at least 30 days prior to the beginning of the meeting in question.

Any participating observer may:

(a) attend meetings, subject to paragraph 2 of this Annex, but not vote;

(b) make oral statements during the meetings upon the invitation of the chairman;

(d) engage in other activities, as appropriate and as approved by the chairman.

The Director may require NGO observers to pay reasonable fees, and to cover costs attributable to their attendance (e.g. copying expenses).

All observers admitted to a meeting of the Parties shall be sent or otherwise provided the same documentation generally available to Parties, except documentation containing business-confidential data.

All observers admitted to a meeting of the Parties shall comply with all rules and procedures applicable to other participants in the meeting.