[Federal Register Volume 61, Number 77 (Friday, April 19, 1996)]
[Notices]
[Pages 17342-17344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9604]
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DEPARTMENT OF STATE
[Public Notice 2368]
Revised Notice of Guidelines for Determining Comparability of
Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing
Operations
SUMMARY: Section 609 of Public Law 101-162 (``Section 609'') provides
that shrimp harvested with technology that may adversely affect certain
sea turtles may not be imported into the United States unless there is
an annual certification to Congress that the harvesting nation has a
regulatory program and an incidental take rate comparable to that of
the United States, or, alternatively, that the fishing environment in
the harvesting nation does not pose a threat of the incidental taking
of sea turtles. This notice revises guidelines used by the Department
of State in making such certifications, in accordance with an order
issued by the U.S. Court of International Trade on December 29, 1995.
EFFECTIVE DATE: May 1, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Hollis Summers, Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs, Department of State, Washington, DC 20520,
telephone number (202) 647-3940.
SUPPLEMENTARY INFORMATION: Section 609 provides that shrimp or products
from shrimp harvested with commercial fishing technology that may
adversely affect certain species of sea turtles protected under U.S.
laws and regulations may not be imported into the United States unless
the President certifies to Congress by May 1, 1991, and annually
thereafter, that:
a. The government of the harvesting nation has provided documentary
evidence of the adoption of a regulatory program governing the
incidental taking of such sea turtles in the course of such harvesting
that is comparable to that of the United States; and
b. The average rate of that incidental taking by vessels of the
harvesting nation is comparable to the average rate of incidental
taking of sea turtles by United States vessels in the course of such
harvesting; or
c. The particular fishing environment of the harvesting nation does
not pose a threat of the incidental taking of such sea turtles in the
course of such harvesting.
The President has delegated to the Secretary of State the authority
to make certifications pursuant to Section 609 (Memorandum of December
19, 1990; 56 FR 357; January 4, 1991).
The relevant species of sea turtles are: loggerhead (Caretta
caretta), Kemp's ridley (Lepidochelys kempi), green (Chelonia mydas),
leatherback (Dermochelys coriacea) and hawksbill (Erermochelys
imbricata).
The Department of State had previously determined that Congress
intended Section 609 to apply only to certain nations in the wider
Caribbean/
[[Page 17343]]
western Atlantic region. However, on December 29, 1995, Judge Thomas J.
Aquilino, Jr., of the U.S. Court of International Trade, issued an
order in Earth Island Institute v. Christopher (CIT 94-06-00321)
requiring that Section 609 applies to shrimp harvested in all foreign
nations.
The U.S. program. The foundation of the U.S. program governing the
incidental taking of sea turtles in the course of shrimp harvesting is
the requirement that commercial shrimp trawl vessels use turtle
excluder devices (TEDs), approved in accordance with standards
established by the U.S. National Marine Fisheries Service (NMFS), in
areas and at times when there is a likelihood of intercepting sea
turtles. The goal of this program is to protect sea turtle populations
from further decline by reducing the incidental mortality of sea
turtles in commercial shrimp trawl operations.
The commercial shrimp trawl fisheries in the United States in which
there is a likelihood of intercepting sea turtles occur in the
temperate waters of the Gulf of Mexico and the Atlantic Ocean from
North Carolina to Texas. With very limited exceptions, all U.S.
commercial shrimp trawl vessels operating in these waters must use
approved TEDs at all times and in all areas. The only exceptions to
this requirement are as follows:
a. Vessels equipped exclusively with the following special types of
gear are not required to use TEDs because the nature of their
operations does not pose a threat of the incidental drowning of sea
turtles: barred beam trawls and/or roller trawls, wing nets, skimmer
trawls, and pusher-head trawls. Single try nets are test nets, used
briefly to test for shrimp concentrations, need not have TEDs.
b. Vessels whose nets are retrieved exclusively by manual rather
than mechanical means are not required to use TEDs because the lack of
a mechanical retrieval system necessarily limits tow times to a short
duration so as not to pose a threat of the incidental drowning of sea
turtles. This exemption applies only to vessels that have no power or
mechanical-advantage trawl retrieval system.
c. In exceptional circumstances, where NMFS determines that the use
of TEDs would be impracticable because of special environmental
conditions such as the presence of algae, seaweed, or debris, or that
TEDs would be ineffective in protecting sea turtles in particular
areas, vessels are permitted to restrict tow times instead of using
TEDs. Such exceptions are generally limited to 30 days. In practice,
NMFS has permitted such exceptions only rarely.
With these limited exceptions, all other commercial shrimp trawl
vessels operating in waters subject to U.S. jurisdiction in which there
is a likelihood of intercepting sea turtles must use TEDs at all times.
For more information on the U.S. program governing the incidental
taking of sea turtles in the course of commercial shrimp trawl
harvesting, see 50 C.F.R. 227.17 and 50 C.F.R. 227.72(e).
Shrimp Harvested in a Manner Not Harmful to Sea Turtles. The
Department of State has determined that import prohibitions imposed
pursuant to Section 609 do not apply to shrimp or products of shrimp
harvested under the following conditions, since such harvesting does
not adversely affect sea turtles:
a. Shrimp harvested in an aquaculture facility in which the shrimp
spend at least 30 days in ponds prior to being harvested.
b. Shrimp harvested by commercial shrimp trawl vessels using TEDs
comparable in effectiveness to those required in the United States.
c. Shrimp harvested exclusively by means that do not involve the
retrieval of fishing nets by mechanical devices or by vessels using
gear that, in accordance with the U.S. program described above, would
not require TEDs.
d. Species of shrimp, such as the pandalid species, harvested in
areas in which sea turtles do not occur.
Shrimp Exporter's Declaration. The Department of State has
determined that, in order to achieve effective implementation of
Section 609 on a world-wide basis, beginning May 1, 1996, all shipments
of shrimp and products of shrimp into the United States must be
accompanied by a declaration (DSP-121, revised) attesting that the
shrimp accompanying the declaration was harvested either under
conditions that do not adversely affect sea turtles (as defined above)
or in waters subject to the jurisdiction of a nation currently
certified pursuant to Section 609. All declaration must be signed by
the exporter of the shrimp. A government official of the harvesting
nation must also sign those declarations asserting that the
accompanying shrimp was harvested under conditions that do not
adversely affect sea turtles. The declaration must accompany the
shipment through all states of the export process, including in the
course of any transshipments and of any transformation of the original
product. The Department of State will make copies of the declaration
readily available; local reproduction of the declarations is fully
acceptable.
Date of Export. The Department of State has further determined that
import prohibitions imposed in 1996 pursuant to Section 609 shall not
apply to shipments of shrimp and products of shrimp with a date of
export prior to May 1, 1996. In subsequent years, import prohibitions
shall not apply to shipments of shrimp and products of shrimp with a
date of export falling at a time in which the harvesting nation is
currently certified pursuant to Section 609.
Country of Origin. For purposes of implementing Section 609, the
country of origin shall be deemed to be the nation in whose waters the
shrimp is harvested, whether or not the harvesting vessel is flying the
flag of another nation.
Guidelines For Determining Comparability
I. Certification Pursuant to Section 609(b)(2)(C)
Section 609(b)(2)(C) authorizes the Department of State to certify
a harvesting nation if the particular fishing environment of the
harvesting nation does not pose a threat of incidental taking of sea
turtles in the course of commercial shrimp trawl harvesting.
Accordingly, the Department of State shall certify any harvesting
nation meeting the following criteria without the need for action on
the part of the government of the harvesting nation:
a. Any harvesting nation without any of the relevant species of sea
turtles occurring in waters subject to its jurisdiction;
b. Any harvesting nation that harvests shrimp exclusively by means
that do not pose a threat to sea turtles, e.g., any nation that
harvests shrimp exclusively by artisanal means;
c. Any nation whose commercial shrimp trawling operations take
place exclusively in waters subject to its jurisdiction in which sea
turtles do not occur.
II. Other Certifications
The Department of State shall certify any other harvesting nation
by May 1, 1996, and annually thereafter, only if the government of that
nation has provided documentary evidence of the adoption of a
regulatory program governing the incidental taking of sea turtles in
the course of commercial shrimp trawl harvesting that is comparable to
that of the United States and if the average take rate of that
incidental taking by vessels of the
[[Page 17344]]
harvesting nation is comparable to the average take rate of incidental
taking of sea turtles by United States vessels in the course of such
harvesting.
a. Regulatory Program. The Department of State shall assess
regulatory programs, as described in the documentary evidence provided
by the governments of harvesting nations, for comparability with the
U.S. program. Certification shall be made if a program includes the
following:
1. Required Use of TEDs--a requirement that all commercial shrimp
trawl vessels operating in waters in which there is a likelihood of
intercepting sea turtles use TEDs at all times. TEDs must be comparable
in effectiveness to those used in the United States. Any exceptions to
this requirement must be comparable to those of the U.S. program
described above; and
2. Enforcement--a credible enforcement effort that includes
monitoring for compliance and appropriate sanctions.
b. Incidental Take. Average incidental take rates will be deemed
comparable if the harvesting nation requires the use of TEDs in a
manner comparable to that of the U.S. program described above.
c. Additional Considerations.
1. Form--A regulatory program may be in the form of regulations
promulgated by the government of the harvesting nation and having the
force of law. If the legal system and industry structure of the
harvesting nation permit voluntary arrangements between government and
the fishing industry, such an arrangement may be acceptable so long as
there is a governmental mechanism to monitor compliance with the
arrangement and to impose penalties for noncompliance, and confirmation
that the fishing industry is complying with the arrangement.
2. Documentary Evidence--Documentary evidence may be in the form of
copies of the relevant laws, regulations or decrees. If the regulatory
program is in the form of a government-industry arrangement, then a
copy of the arrangement is required. Harvesting nations are encouraged
to provide, to the extent practicable, information relating to the
extent of shrimp harvested by means of aquaculture.
3. Additional Turtle Protection Measures--The Department of State
recognizes that sea turtles require protection throughout their life
cycle, not only in the course of commercial shrimp trawl harvesting. In
making the comparability determination, the Department shall also take
into account other measures the harvesting nation undertakes to protect
sea turtles, including national programs to protect nesting beaches and
other habitat, prohibitions on the directed take of sea turtles,
national enforcement and compliance programs, and participation in any
international agreement for the protection and conservation of sea
turtles.
4. Consultations--The Department of State will engage in ongoing
consultations with harvesting nations. The Department recognizes that,
as turtle protection programs develop, additional information will be
gained about the interaction between turtle populations and shrimp
fisheries. These Guidelines may be revised in the future to take into
consideration that and other information, as well as to take into
account changes in the U.S. program.
IV. Related Determinations
a. Any harvesting nation that is not certified on May 1 of any year
may be certified prior to the following May 1 at such time as the
harvesting nation meets the criteria necessary for certification.
Conversely, any harvesting nation that is certified on May 1 of any
year may have its certification revoked prior to the following May 1 at
such time as the harvesting nation no longer meets those criteria.
b. These Guidelines, as revised, do not represent any substantive
change in criteria for certification of harvesting nations, previously
determined to be covered by Section 609, that do not have waters
subject to their jurisdiction outside the wider Caribbean/western
Atlantic region. For harvesting nations that have waters subject to
their jurisdiction both in the wider Caribbean/western Atlantic region
and elsewhere (e.g., in the Pacific ocean), certification will depend
on application of the criteria in Sections II and III above in relation
to all waters subject to their jurisdiction.
As a matter relating to the foreign affairs function, these
guidelines are exempt from the notice, comment, and delayed
effectiveness provisions of the Administrative Procedures Act. This
action is exempt from Executive Order 12866, and is not subject to the
requirements of the Regulatory Flexibility Act.
Dated: April 9, 1996.
For the Secretary of State.
Eileen B. Claussen,
Assistant Secretary for Oceans and International Environmental and
Scientific Affairs.
[FR Doc. 96-9604 Filed 4-18-96; 8:45 am]
BILLING CODE 4710-09-M
