(2) secure appropriate multilateral agreements to reduce, and eventually eliminate, the mortality referred to in paragraph (1); (3) ensure that the market of the United States does not act as an incentive to the harvest of tuna caught in association with dolphins or with driftnets; (4) secure appropriate multilateral agreements to ensure that United States tuna fishing vessels shall have continued access to productive tuna fishing grounds in the South Pacific Ocean and elsewhere; and (5) encourage observer coverage on purse seine vessels fishing for tuna outside of the eastern tropical Pacific Ocean in a fishery in which the Secretary has determined that a regular and significant association occurs between marine mammals and tuna, and in which tuna is harvested through the use of purse seine nets deployed on or to encircle marine mammals. SEC. 302. INTERNATIONAL AGREEMENTS TO ESTABLISH GLOBAL (a) IN GENERAL.-The Secretary of State, in consultation with the Secretary, may enter into international agreements which establish, in accordance with this title, a global moratorium of at least 5 years duration to prohibit harvesting tuna through the use of purse seine nets deployed on or to encircle dolphins or other marine mammals. (b) TERMS OF AGREEMENT.-Any agreement entered into under this section shall (1) establish a moratorium described in subsection (a) which takes effect on March 1, 1994; (2) include an international research program and, notwithstanding the moratorium, authorize harvesting of tuna under that program; (3) provide for reviews and reports in accordance with section 304 on results of research conducted under the research program; (4) require each country that is a party to the agreement to take all the necessary and appropriate steps to ensure compliance with the moratorium; and (5) encourage each country that is a party to the agreement to seek, through bilateral and multilateral negotiations, to encourage other countries that participate in fisheries to which the agreement applies to become parties to the agreement. (c) COMPLIANCE BY UNITED STATES WITH MORATORIUM.-The moratorium authorized under subsection (a) may be terminated prior to December 31, 1999, with respect to the United States for the harvesting of tuna in the eastern tropical Pacific Ocean only if (1) the Secretary submits to the Congress in accordance with section 304(b) a recommendation that the moratorium be terminated; and (2) the recommendation is approved by enactment of a joint resolution of approval. C. 1412. (4) 33 (A) Except as provided in subparagraphs (B) and (C), the provisions of this Act shall not apply to the use of meas ures (i) by the owner of fishing gear or catch, or an employee or agent of such owner, to deter a marine mammal from damaging the gear or catch; (ii) by the owner of other private property, or an agent, bailee, or employee of such owner, to deter a marine mammal from damaging private property; (iii) by any person, to deter a marine mammal from endangering personal safety; or (iv) by a government employee, to deter a marine mammal from damaging public property, so long as such measures do not result in the death or serious injury of a marine mammal. (B) The Secretary shall, through consultation with appropriate experts, and after notice and opportunity for public comment, publish in the Federal Register a list of guidelines for use in safely deterring marine mammals. In the case of marine mammals listed as endangered species or threatened species under the Endangered Species Act of 1973, the Secretary shall recommend specific measures which may be used to nonlethally deter marine mammals. Actions to deter marine mammals consistent with such guidelines or specific measures shall not be a violation of this Act. (C) If the Secretary determines, using the best scientific information available, that certain forms of deterrence have a significant adverse effect on marine mammals, the Secretary may prohibit such deterrent methods, after notice and opportunity for public comment, through regulation under this Act. (D) The authority to deter marine mammals pursuant to subparagraph (A) applies to all marine mammals, including all stocks designated as depleted under this Act. (5)(A) Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specified geographical region, the Secretary shall allow, during periods of not more than five consecutive years each, the incidental, but not intentional, taking by citizens while engaging in that activity within that region of small numbers of marine mammals of a species or population stock that 34 if the Secretary, after notice (in the Federal Register and in newspapers of general circulation, and through appropriate electronic media, in the coastal areas that may be affected by such activity) and opportunity for public comment (i) finds that the total of such taking during each fiveyear (or less) period concerned will have a negligible impact on such species or stock and 35 will not have an 33 Par. (4) was added by sec. 101(1XC) of Public Law 97-58 (95 Stat. 980), amended by sec. 411 of Public Law 99-659 (100 Stat. 3741), and further amended and restated by sec. 4(aX4) of Public Law 103-238 (108 Stat. 533). 34 Sec. 411 of Public Law 99-659 (100 Stat. 37441) struck out "that is not depleted" at this point. 36 The words beginning with "will" and ending with "impact" were added by sec. 411 of Public Law 99-659, (100 Stat. 3741), in lieu of "its habitat, and". unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b) or section 109(f) 36 or, in the case of a cooperative agreement under both this Act and the Whaling Convention Act of 1949 (16 U.S.C. 916 et seq.), pursuant to section 112(c); and (ii) prescribes regulations setting forth— (I) permissible methods of taking pursuant to such activity, and other means of effecting the last practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance; 37 and on the availability of such species or stock for substance uses; and (II) requirements pertaining to the monitoring and reporting of such taking. (B) The Secretary shall withdraw, or suspend for a time certain (either on an individual or class basis, as appropriate) the permission to take marine mammals under subparagraph (A) pursuant to a specified activity within a specified geographical region if the Secretary finds, after notice and opportunity for public comment (as required under subparagraph (A) unless subparagraph (C)(i) applies), that (i) the regulations prescribed under subparagraph (A) regarding methods of taking, monitoring, or reporting are not being substantially complied with by a person engaging in such activity; or (ii) the taking allowed under subparagraph (A) pursuant to one or more activities within one or more regions is having, or may have, more than a negligible impact on the species or stock concerned. (C)(i) The requirement for notice and opportunity for public comment in subparagraph (B) shall not apply in the case of a suspension of permission to take if the Secretary determines that an emergency exists which poses a significant risk to the well-being of the species or stock concerned. (ii) Sections 103 and 104 shall not apply to the taking of marine mammals under the authority of this paragraph. (D) 38 (i) Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specific geographic region, the Secretary shall authorize, for periods of not more than 1 year, subject to such conditions as the Secretary may specify, the incidental, but not intentional, taking by harassment of small numbers of marine mammals of a species or population stock by such citizens while engaging in that activity within that region if the Secretary finds that such harassment during each period concerned 38 The words from this point through "pursuant to section 112(c)" were added by sec. 411 of Public Law 99-659 (100 Stat. 3741). 37 The words from this point through "subsistence uses" were added by sec. 411 of Public Law 99-659. 38 Sec. 4(aX5) of ♪ 3238 (108 Stat. 533) added subparas. (D) and (E). (I) will have a negligible impact on such species or stock, and (II) will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b), or section 109(f) or pursuant to a cooperative agreement under section 119. (ii) The authorization for such activity shall prescribe, where applicable (I) permissible methods of taking by harassment pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b) or section 109(f) or pursuant to a cooperative agreement under section 119, (II) the measures that the Secretary determines are necessary to ensure no unmitigable adverse impact on the availability of the species or stock for taking for subsistence uses pursuant to subsection (b) or section 109(f) or pursuant to a cooperative agreement under section 119, and (III) requirements pertaining to the monitoring and reporting of such taking by harassment, including requirements for the independent peer review of proposed monitoring plans or other research proposals where the proposed activity may affect the availability of a species or stock for taking for subsistence uses pursuant to subsection (b) or section 109(f) or pursuant to a cooperative agreement under section 119. (iii) The Secretary shall publish a proposed authorization not later than 45 days after receiving an application under this subparagraph and request public comment through notice in the Federal Register, newspapers of general circulation, and appropriate electronic media and to all locally affected communities for a period of 30 days after publication. Not later than 45 days after the close of the public comment period, if the Secretary makes the findings set forth in clause (i), the Secretary shall issue an authorization with appropriate conditions to meet the requirements of clause (ii). (iv) The Secretary shall modify, suspend, or revoke an authorization if the Secretary finds that the provisions of clauses (i) or (ii) are not being met. (v) A person conducting an activity for which an authorization has been granted under this subparagraph shall not be subject to the penalties of this Act for taking by harassment that occurs in compliance with such authorization. (E) 38 (i) During any period of up to 3 consecutive years, the Secretary shall allow the incidental, but not the intentional, taking by persons using vessels of the United States or vessels which have valid fishing permits issued by the Secretary in accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.Č. 1824(b)), while engaging in commercial fishing operations, of marine mammals must be a fish and fish product category or categories with respect to which the articles classified thereunder and imported from that country in the base year had an aggregate customs valuation equal to 40 percent of the aggregate customs valuation of all articles classified under all fish and fish product categories that were imported from that country during the base year. (C) DEFINITION OF BASE YEAR.-For purposes of subparagraph (B), the term 'base year' means the calendar year immediately occurring before the calendar year in which the import ban under subparagraph (A) commences with respect to the country. (3) DURATION OF IMPORT BANS.-Bans on importation imposed under paragraphs (1) and (2) with respect to a country shall continue in effect until the Secretary determines that the country is implementing the commitments described in subsection (a). (4) IMPLEMENTATION OF IMPORT BANS.-The Secretary of the Treasury shall take such action as may be necessary or appropriate to implement importation bans imposed under paragraphs (1) and (2). (c) REVIEWS AND REPORTS.-The Secretary, in consultation with the Secretary of State, shall (1) periodically review the activities of countries which have transmitted to the Secretary of State formal communications expressing the commitments described in subsection (a), to determine whether those countries are complying with those commitments; and (2) include the results of those reviews in annual reports submitted to the Congress pursuant to section 304(a). SEC. 306.73 PERMITS FOR TAKING DOLPHINS. (a) ADDITIONAL RESTRICTIONS UNDER GENERAL PERMIT.-Notwithstanding section 104(h), the general permit issued to the American Tunaboat Association on December 1, 1980, shall be subject to the following additional restrictions: (1) Total dolphin mortalities (including mortalities resulting from research) authorized by the permit shall not exceed 1,000 during the period beginning January 1, 1992, and ending December 31, 1992, and 800 during the period beginning January 1, 1993, and ending March 1, 1994. (2) No purse seine net may be deployed under the permit on or to encircle any school of dolphins in which any eastern spinner dolphin (Stenella longirostris) or coastal spotted dolphin (Stenella attenuata) is observed prior to release of the net skiff. (3) The permit shall expire March 1, 1994, unless no major purse seine tuna fishing country enters into an agreement with the Secretary in accordance with section 302 before that date (notwithstanding any agreement under that section with a country that is not a major purse seine tuna fishing country). (4) If no major purse seine tuna fishing country enters into an agreement with the Secretary in accordance with section. 302 before March 1, 1994, and notwithstanding any agreement 73 16 U.S.C. 1416. |