[Federal Register Volume 64, Number 130 (Thursday, July 8, 1999)]
[Notices]
[Pages 36946-36952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17330]
[[Page 36946]]
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DEPARTMENT OF STATE
[Public Notice 3086]
Revised Guidelines for the Implementation of Section 609 of
Public Law 101-162 Relating to the Protection of Sea 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
species of sea turtles may not be imported into the United States. This
import prohibition does not apply if the Department of State certifies
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. On
March 25, 1999, in response to recommendations of the Dispute
Settlement Body of the World Trade Organization, the Department of
State published a notice in the Federal Register (Public Notice 3013,
64 FR 14481) proposing several revisions to the guidelines issued by
the Department on August 28, 1998 for use in making such
certifications. In that Federal Register Notice, the Department also
requested public comment on certain aspects of those proposals, in
accordance with provisions of the Uruguay Round Trade Agreements Act,
16 U.S.C. 3533. This notice reviews and responds to the comments
received and provides the current version of the guidelines, which
include a number of modifications made pursuant to those comments.
EFFECTIVE DATE: July 8, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. David Hogan, Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs, Department of State, Washington D.C., telephone
number (202) 647-2335.
I. SUPPLEMENTARY INFORMATION:
A. Section 609
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. law and regulations may not
be imported into the United States. This import prohibition does not
apply if 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 (Eretmochelys
imbricata).
B. Summary of Comments Received and Responses to Those Comments
The Department of State received 11 sets of comments on the Federal
Register notice issued March 25, 1999. The Department received 5 sets
of comments from governments (or government agencies): Agriculture,
Fisheries and Forestry Australia; India; Malaysia; Thailand; and the
U.S. Fish and Wildlife Service. The Department also received 6 sets of
comments from non-governmental organizations and individuals: A
coalition of environmental organizations, including the Caribbean
Conservation Corporation, Center for Marine Conservation, Consumers
Choice Council, Defenders of Wildlife, Earthjustice Legal Defense Fund,
Humane Society of the United States, National Wildlife Federation,
Natural Resources Defense Council, Sea Turtle Restoration Project,
Sierra Club, World Wildlife Fund; Australian Prawn Promotion
Association; Center for Marine Conservation; National Fisheries
Institute; Sea Turtle Restoration Project; and J. Frazier, D. PhIL.
The Federal Register notice issued March 25, 1999 presented a
review of the WTO decision and the steps being proposed and/or taken by
the United States to implement that decision. However, the notice
sought public comments on those aspects of the WTO decision that were
intended to be addressed through the proposed changes to the
guidelines, as set forth in Sections II and III of that notice.
Section II of the notice proposed an amendment to the list of
exemptions for methods of harvesting shrimp that do not pose a threat
to sea turtles and are thus outside the scope of any embargo under the
Section 609. Section II also described in more specific terms the types
of information that foreign governments may provide and the manner in
which the Department will review such information in making
determinations under Section 609.
Section III of the notice proposed certain changes to the criteria
that the Department will use in making certification decisions, with
the intent of introducing greater flexibility in considering the
comparability of foreign programs and the U.S. program. Section III
also laid out an elaborated ``timetable and procedures'' for
certification decisions, including an expedited timetable to apply in
1999 only. The intent of these proposed changes is to increase the
transparency and predictability of the certification process and to
afford foreign governments seeking certification a greater degree of
due process.
The governments and organizations that submitted comments did not
limit those comments to Sections II and III of the Federal Register
notice. Instead, many of those comments responded to other parts of the
notice, particularly to the current policy of permitting importation of
shrimp harvested by vessels equipped with turtle excluder devices
(``TEDs'') in uncertified nations, for which the Department proposed no
change.
The following material summarizes, and responds to, all comments
received.
(1) General Comments: A number of comments received were general in
nature and did not relate to any particular proposal for revision of
the guidelines. Several comments simply praised the effort of the
Department of State to comply with the WTO ruling. Three comments,
however, took the position that, in order to comply with the WTO
decision, the United States must lift the import prohibition required
by Section 609 immediately and that mere revisions in the
implementation of Section 609 are insufficient.
Response. The WTO decision did not require a change to Section 609
itself or require that the import prohibitions set forth in Section 609
be otherwise lifted across-the-board. Rather, the WTO decision found
that several aspects of the implementation of Section 609, in their
cumulative effect, amounted to a violation of the obligations of the
United States under the WTO Agreement. The modifications to the
guidelines set forth in this notice, together with the other measures
described in the Federal Register notice issued March 25, 1999, are
intended to address the rulings and
[[Page 36947]]
recommendations set forth in the WTO decision.
(2) Comments on Section II: With respect to the proposed amendment
to the list of exemptions for harvesting methods that do not harm sea
turtles, one comment simply supported the new wording. Another comment
suggested that the conditions and criteria upon which determinations
will be made under the proposed amendment should be clearly identified
and that there should be a definite time-frame regarding publication
and notification of the results of such determinations.
Response. The proposed amendment is designed to cover situations
not presently known to the Department of State in which shrimp may be
harvested in ways that do not adversely affect sea turtle species. As
such, it is difficult to specify the conditions and criteria upon which
such determinations will be made. Instead, in keeping with the spirit
of the WTO decision, the intent is to provide for the flexibility
necessary to assess each situation on its own merits, taking into
account differences that may exist in the shrimp harvesting conditions
in different nations. For similar reasons, it is hard to specify a
single time-frame that would be appropriate for all such
determinations. Nevertheless, the section of the proposed guidelines
entitled ``Review of Information'' provides that the Department of
State will make such determinations within 120 days from the date on
which a foreign government submits the necessary information.
A final comment suggested that the term ``incidental mortality''
should be used instead of ``incidental capture.''
Response. The proposed guidelines actually use the term
``incidental taking,'' which covers both incidental mortality and
incidental capture. In the view of the Department of State, the term
``incidental taking'' is the most appropriate term since, in addition
to being the term used in Section 609 itself, it is well-established in
U.S. law and practice regarding the protection of endangered and
threatened sea turtles.
Several comments supported the proposed changes regarding review of
information, particularly the new language requiring ``empirical data
supported by objective scientific studies'' and the proposed timeline
for response. Once comment suggested the deletion of the phrase
``available biological and commercial data,'' on grounds that such data
are not relevant to the determination of whether the fishing
environment of a harvesting nation is likely to pose a threat to sea
turtles.
Response. The term ``available biological and commercial data''
refers to two separate sets of information. ``Biological data'' refers,
e.g., to data and information on the resources in question, both the
shrimp that is being targeted by the fisheries and the sea turtles that
might be caught incidental to those fisheries. ``Commercial data''
refers, in this case, to information relating to the operation of the
fleet in a particular fishery (areas of operation, fishing depth,
length of trawls, etc.). Both sets of information are relevant to
determining of whether the fishing environment in a particular country
or fishery is likely to pose a threat to sea turtles. To be clearer on
this point, the final version of the guidelines replaces the term
``biological and commercial data'' with ``biological data regarding the
resources in question and operational information relating to
activities of the fishing fleet''.
(3) Comments on Section III: With respect to the proposed changes
intended to introduce greater flexibility in the making of
certification decisions, several comments supported the changes on
grounds that they would encourage nations to adopt innovative methods
for protecting sea turtles. Another comment emphasized that, because
properly installed TEDs release 97 percent of sea turtles captured in
shrimp trawl nets, other approaches to protecting sea turtles in the
course of shrimp trawl fishing cannot be considered comparable unless
they are 97 percent effective.
Response: As recognized in the WTO decision, Section 609 requires,
as a condition for certification, that a foreign program for protecting
sea turtles in the course of shrimp trawl fishing be comparable to the
U.S. program. If a foreign nation adopts a program that seeks to
protect sea turtles by modifications to the gear used for shrimp
trawling, it may be appropriate to compare, in a numerical sense, the
success of such gear modifications in protecting sea turtles to the
success achieved through the mandatory use of TEDs. If, by contrast, a
foreign nation seeks to protect sea turtles from the effects of shrimp
trawl harvesting through other means, e.g., through time and area
closures or other non-gear related measures, it may not be appropriate
to make the comparison to the U.S. program on a strictly numerical
basis.
A further comment argued that the criteria on which certifications
are made should be more clearly identified. Certain elements should be
more clearly defined, including ``comparably effective regulatory
program'', ``sufficient duration'' and ``information from other
sources''.
Response: The term ``comparably effective regulatory program''
derives its meaning from Section 609 itself; i.e., ``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.'' By contrast, the term ``sufficient duration'' is
difficult to specify precisely, due to the fact that the duration of a
scientific study necessary to make a reliable determination may vary
considerably, depending on the nature of the inquiry. As provided in
the section of the guidelines entitled ``Review of Information,'' the
United States will, upon request ``review and provide comments on a
planned or existing study with respect to sample size, scientific
methodology and other factors that affect whether such a study provides
a sufficient basis for making a reliable determination.'' It is the
intention of the Department of State to work cooperatively with foreign
nations seeking certification in considering the scientific bases on
which such determinations are to be made.
Finally, the section of the guidelines entitled ``Review of
Information'' also makes clear that the term ``information from other
sources'' includes, but is not limited to ``academic and scientific
organizations, intergovernmental organizations and non-governmental
organizations with recognized expertise in the subject matter.''
The same comment added that the proposed revisions have not
sufficiently taken into account the issue of predictability.
Response: The Department of State is not certain what is meant by
this comment. To the extent that the comment suggests the need for a
foreign government seeking certification to anticipate the result of a
determination before it is made, the section of the guidelines entitled
``Timetable and Procedures for Certification Decisions'' provides,
inter alia, for the considerable information exchange that is intended
to allow the foreign government to predict the likely result. In
particular, the guidelines stipulate that, ``By March 15, the
Department of State will notify in writing through diplomatic channels
the government of each nation that, on the basis of available
information * * * does not appear to qualify for certification. Such
notification will explain the reasons for this preliminary assessment,
suggest steps that the government of the harvesting nation can take in
order to receive a certification and invite the government of the
harvesting nation to provide, by April
[[Page 36948]]
15, any further information. If the government of the harvesting nation
so requests, the Department of State will schedule face-to-face
meetings between relevant U.S. officials and officials of the
harvesting nation to discuss the situation.'' Through these procedures,
the Department of State intends that the certification determinations
will be both more predictable and transparent.
With one exception, all other comments that addressed the proposals
for new timetables and procedures supported the proposals, on grounds
that they would ensure transparency and equitableness and will improve
predictability, due process and procedural fairness. However, one
comment stated that the proposed date of September 1, 1999, by which
foreign governments seeking certifications under the revised guidelines
must submit information, is not acceptable due to such factors as the
availability of resources, capacity, skills, technologies, etc.
Response: The Department of State recognizes that a government
seeking certification on the basis of the revised guidelines may not,
by September 1, 1999, be able to gather sufficient information
necessary to support such a request. To meet this concern, and in
accordance with its existing practice, the Department will accept
requests for certification at any time in the year and will undertake
to process them as expeditiously as possible. However, the Department
can only commit to making a certification determination by December 6,
1999 if it has received the necessary information by September 1, 1999.
Language to this effect has been added to the guidelines.
(3) Comments on Other Issues. Despite the fact that the Federal
Register notice issued March 25, 1999 only sought comments on the
issued discussed above, by far the most comments pertained to the
policy of the Department of State relating to the importation of shrimp
harvested by vessels equipped with TEDs in uncertified nations. The
current policy was set forth in the guidelines issued by the Department
of State on August 28, 1998, Public Notice 2876, 63 F.R. 167 (``the
current policy'').
In general, some comments actively supported the current policy,
while other comments strongly opposed it. Those comments in support of
the current policy argued that imports of shrimp caught by vessels
equipped with TEDs should not be excluded from the U.S. market,
regardless of the certification status of the nation involved. Allowing
such shrimp into the United States encourages foreign shrimpers to join
sea turtle conservation efforts. Another comment in support of the
current policy emphasized that, if shrimp is harvested by a vessel
using a TED, it should be allowed to enter the U.S. market whether or
not all vessels in the same nation are using TEDs.
Comments in opposition to the current policy argued that the policy
was inconsistent with Section 609, insofar as Section 609 provides for
certification of foreign nations, and does not allow for the
authorization of individual shipments of shrimp entering the United
States. Other comments also took the view that the current policy
undermines the goal of sea turtle conservation by creating a
disincentive for foreign nations that are maintaining, or may be
considering, a nation-wide program to require TEDs use. Still other
comments stated that the use of TEDs by only some vessels in a foreign
nation does not protect sea turtles overall, in that sea turtles that
escape from nets equipped with TEDs are subject to capture and drowning
in nets of other vessels that are not using TEDs.
Response. The Department of State recognizes the strongly held
views on all sides of this issue, and notes that the issue is also the
subject of on-going litigation before the U.S. Court of International
Trade. In light of these circumstances, the Department has determined
that it will make no change to the current policy at this time.
Several comments supported U.S. efforts, described in the Federal
Register notice issued March 25, 1999, to pursue negotiations toward a
comprehensive sea turtle agreement for the Indian Ocean region. One
comment, however, noted such an agreement ``should not include a WTO
escape clause, because this will negate the chance of any pro-
environment aspect of the treaty to survive if ever challenged.''
Response. The Department of State is not certain what is meant by
the term ``WTO escape clause.'' The Department would simply note that
the agreement we envision would deal with the protection of sea turtles
and would not deal with international trade issues except to reinforce
existing restrictions on international trade in sea turtles and sea
turtle parts.
Several comments addressed issues concerning the provision of
assistance by the United States Government to other governments to
promote TEDs use. One comment urged the United States Government to
offer assistance to other governments in developing effective
monitoring and enforcement programs. Another comment suggested that the
United States Government should give TEDs away for free or on a
subsidized basis, and that U.S. shrimp fishermen could take part in
training shrimp fishermen in other nations.
Response. The United States Government, primarily through the NMFS,
has offered assistance to other governments in the area of monitoring
and enforcing fishing rules, and shrimp fishing rules in particular. We
envision that, under the auspices of the Inter-American Sea Turtle
Convention and a comparable agreement that would cover the Indian Ocean
region, such assistance could also be made available from a variety of
sources.
Experience has shown that foreign governments can easily acquire
TEDs on the open market or by constructing TEDs themselves from
materials that are readily available. The costs of purchasing or
constructing a TED is modest when compared with other costs associated
with the operation of a commercial shrimp trawl vessel, such as fuel,
gear, etc. In our judgment, the resources of the United States
Government are better devoted to training foreign government officials
and shrimp fishermen in the proper design, construction, installation
and use of TEDs.
The Department of State would support initiatives by U.S. fishermen
familiar with TEDs to assist their foreign counterparts in acquiring
and using this technology.
Several comments addressed other exemptions pertaining to shrimp
harvested in ways not harmful to sea turtles. One comment noted that
the ecological effects of shrimp farming or aquaculture ultimately harm
sea turtles as they do other marine life. Another comment characterized
as ``meaningless and arbitrary'' the 30-day minimum that shrimp must
spend in an aquaculture pond before being harvested in order to qualify
for the aquaculture exemption. A final comment suggested a more precise
definition for the term ``mechanical devices'' with respect to the
exemption relating to artisanal means of shrimp harvesting.
Response. While the Department of State is aware of significant
ecological concerns with respect to the harvesting of shrimp by
aquaculture, those concerns do not relate to sea turtles specifically.
As such, the Department is of the view that Congress did not intend to
include the harvesting of shrimp by aquaculture within the meaning of
the term ``commercial fishing technology that may adversely affect''
sea turtle species. Regarding the 30-day minimum period, the Department
instituted this requirement to ensure that shrimp categorized as
qualifying for the
[[Page 36949]]
aquaculture exemption were not actually harvested in the wild and
merely placed in an aquaculture facility for a brief moment before
being processed for export. With respect to the term ``mechanical
devices,'' the Department has modified the language of the guidelines
to add specificity.
Another comment suggested that the DSP-121 forms be made available
for public inspection.
Response. The Department of State does not believe that this
suggestion is feasible, or that its adoption is necessary to achieve an
adequate system for monitoring imports of shrimp.
The guidelines contain numerous safeguards to ensure the proper
completion of the DSP-121 and to protect against fraud.
A final comment suggested that, to achieve effective sea turtle
conservation, the guidelines should cover all species of sea turtles,
despite the fact that Section 609 applies only to ``those species of
sea turtles the conservation of which is the subject of regulations
promulgated by the Secretary of Commerce on June 29, 1987.''
Response. The purpose of the guidelines is to assist in the
implementation of Section 609, which, as a technical matter, pertains
only to those species of sea turtles covered by the June 29, 1987
regulations promulgated by the Secretary of Commerce. However, the
Department of State notes that, as a practical matter, the requirements
relating to shrimp imports set in place by Section 609 and the
guidelines have the effect of extending protection to all endangered
and threatened species of sea turtles. There are few, if any, places in
the world where endangered or threatened sea turtle species falling
outside the technical scope of Section occur and that sea turtle
species covered by Section 609 do not.
Revised Guidelines
For the sake of clarity, the August 28, 1998 guidelines are
restated below as modified to reflect the changes proposed in the
Federal Register notice issued March 25, 1999, and the comments
received on those proposed changes.
I. Introductory Material
A. The U.S. Program
Since certification decisions under Section 609(b)(2)(A) and (B)
are based on comparability with the U.S. program governing the
incidental taking of sea turtles in the course of shrimp harvesting, an
explanation of the components of that program follows. The U.S. program
requires that commercial shrimp trawl vessels use 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 wing nets, skimmer trawls, and
pusher-head trawls when used in conjunction with certain restricted tow
times are not required to use TEDs because their operations do not pose
a threat to sea turtles. Vessels equipped with barred beam trawls and/
or barred roller trawls are not required to use TEDs. Single try nets
(with less than a twelve foot headrope and fifteen foot rope) are not
required to use 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 two periods of 30 days
each. 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 CFR 227.17 and 50 CFR 227.72(e).
B. Shrimp Harvested in a Manner Not Harmful to Sea Turtles
The Department of State has determined that the 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 turtle species:
a. Shrimp harvested in an aquaculture facility in which the shrimp
spend at least 30 days in pond 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, such as winches,
pulleys, power blocks or other devices providing mechanical advantage,
or by vessels using gear that, in accordance with the U.S. program
described above, would not require TEDs.
d. Shrimp harvested in any other manner or under any other
circumstances that the Department of State may determine, following
consultation with the NMFS, does not pose a threat of the incidental
taking of sea turtles. The Department of State shall publish any such
determinations in the Federal Register and shall notify affected
foreign governments and other interested parties directly.
C. Shrimp Exporter's/Importer's Declaration
The requirement that all shipments of shrimp and products of shrimp
imported into the United States must be accompanied by a declaration
(DSP-121, revised) became effective as of May 1, 1996 and remains
effective. The DSP-121 attests 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 declarations must be signed by the exporter. The declaration must
accompany the shipment through all stages of the export process,
including any transformation of the original product and any shipment
through any intermediary nation. As before, the Department of State
will make copies of the declaration readily available. Local
reproduction of the declarations is fully acceptable.
The requirement that a government official of the harvesting nation
not
[[Page 36950]]
currently certified pursuant to Section 609 must also sign the DSP-121
asserting that the accompanying shrimp was harvested under conditions
that do not adversely affect sea turtles species remains effective. In
order to protect against fraud, the Department will continue to conduct
periodic reviews of the systems that such foreign governments have put
in place to verify the statements made on the DSP-121 form.
Date of Export. 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.
E. Review of Information
The government of any harvesting nation may request that the
Department of State review any information regarding the particular
shrimp fishing environment and conditions in that nation, or within a
distinct geographic region of that nation, in making decisions pursuant
to Section 609. Such information may be presented to demonstrate, inter
alia:
(1) That some portion of the shrimp intended to be exported from
that nation to the United States is harvested under one of the
conditions identified above as not adversely affecting species of sea
turtles;
(2) That the government of that nation has adopted a regulatory
program governing the incidental taking of sea turtles in the course of
commercial shrimp trawl fishing that is comparable to the U.S. program
and, therefore, that the nation is eligible for certification under
Section 609(b)(2)(A) and (B); or
(3) That the fishing environment in that nation does not pose a
threat of the incidental taking of sea turtles and, therefore, that the
nation is eligible for certification under Section 609(b)(2)(C).
Such information should be based on empirical data supported by
objective scientific studies of sufficient duration and scope to
provide the information necessary for a reliable determination. In
addition, information submitted to support a request for any such
determination should include available biological data regarding the
resources in question and operational information relating to the
activities of the fishing fleet that are relevant to determining
whether or not the fishing environment of the harvesting nation is
likely to pose a threat to sea turtles. Studies intended to show the
rate of incidental taking of sea turtles in a given shrimp fishery
should, at a minimum, contain data for an entire fishing season. Upon
request, the United States will review and provide comments on a
planned or existing study with respect to sample size, scientific
methodology and other factors that affect whether such a study provides
a sufficient basis for making a reliable determination.
The Department will fully review and take into consideration all
such information and, in consultation with the NMFS, respond in writing
to the government of the harvesting nation within 120 days from the
date on which the information is received.
The Department, in consultation with the NMFS, will also take into
consideration information on the same subjects that may be available
from other sources, including but not limited to academic and
scientific organizations, intergovernmental organizations and non-
governmental organizations with recognized expertise in the subject
matter.
II. Guidelines for Making Certification Decisions
A. 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 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.
B. Certification Pursuant to Section 609(b)(2)(A) and (B)
Under Section 609(b)(2), the Department of State shall certify any
other harvesting nation by May 1st of each year if ``the government of
(that) 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 if ``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.''
a. Regulatory Program. The Department of State shall assess
regulatory programs, as described in any documentary evidence provided
by the governments of harvesting nations, for comparability with the
U.S. program.
Where standard otter trawl nets are used in shrimp fisheries in
waters where sea turtles are present, sea turtles will inevitably be
captured and drowned. The Department of State is presently aware of no
measure or series of measures that can minimize the capture and
drowning of sea turtles in such nets that is comparable in
effectiveness to the required use of TEDs.
1. If the government of the harvesting nation seeks certification
on the basis of having adopted a TEDs program, certification shall be
made if a program includes the following:
(i) 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
(ii) Enforcement--a credible enforcement effort that includes
monitoring for compliance and appropriate sanctions.
2. If the government of a harvesting nation demonstrates that it
has implemented and is enforcing a comparably effective regulatory
program to protect sea turtles in the course of shrimp trawl fishing
without the use of TEDs, that nation will also be eligible for
certification. As described above, such a demonstration would need to
be based on empirical data supported by objective scientific studies of
sufficient duration and scope to provide the information necessary for
a reliable determination. In reviewing any such information, the
Department of State will take fully into account any demonstrated
differences between the shrimp fishing conditions in the United States
and those in other nations, as well as information available from other
sources.
[[Page 36951]]
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 or, as described above,
otherwise demonstrates that it has implemented a comparably effective
program to protect sea turtles in the course of shrimp trawl fishing
without the use of TEDs.
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 non-compliance, and reliable 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 Sea Turtle Protection Measures--The Department of
State recognizes that sea turtles require protection throughout their
life cycle, not only when they are threatened during the course of
commercial shrimp trawl harvesting. In making certification
determinations, the Department shall also take fully 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. In assessing any information provided by the governments of
harvesting nations in this respect, the Department of State will rely
on the technical expertise of NMFS and, where appropriate, the US Fish
and Wildlife Service to evaluate threats to sea turtles and the
effectiveness of sea turtle protection programs.
4. Consultations--The Department of State will engage in ongoing
consultations with the governments of harvesting nations. The
Department recognizes that, as sea turtle protection programs develop,
additional information will be gained about the interaction between sea
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. These Guidelines may also be
revised as a result of pending domestic litigation. In addition, the
Department will continue to welcome public input on the best ways to
implement both these Guidelines and Section 609 as a whole and may
revise these guidelines in the future accordingly.
C. Timetable and Procedures for Certification Decisions
Each year the Department will consider for certification: (a) any
nation that is currently certified, and (b) any other shrimp harvesting
nation whose government requests such certification in a written
communication to the Department of State through diplomatic channels
prior to September 1 of the preceding year. Any such communication
should include any information not previously provided that would
support the request for certification, including the information
specified above under Review of Information.
Between September 1 and March 1, U.S. officials will seek to visit
those nations requesting certifications pursuant to Section
609(b)(2)(A) and (B). Each visit will conclude with a meeting between
the U.S. officials and government officials of the harvesting nation to
discuss the results of the visit and to review any identified
deficiencies regarding the harvesting nation's program to protect sea
turtles in the course of shrimp trawl fishing.
By March 15, the Department of State will notify in writing through
diplomatic channels the government of each nation that, on the basis of
available information, including information gathered during such
visits, does not appear to qualify for certification. Such notification
will explain the reasons for this preliminary assessment, suggest steps
that the government of the harvesting nation can take in order to
receive a certification and invite the government of the harvesting
nation to provide, by April 15, any further information. If the
government of the harvesting nation so requests, the Department of
State will schedule face-to-face meetings between relevant U.S.
officials and officials of the harvesting nation to discuss the
situation.
Between March 15 and May 1, the Department of State will actively
consider any additional information that the government of the
harvesting nation believes should be considered by the Department in
making its determination concerning certification.
By May 1 of each year the Department of State will make formal
decisions on certification. The governments of all nations that have
requested certification will be notified in writing of the decision
promptly through diplomatic channels. In the case of those nations for
which certification is denied, such notification will again state the
reasons for such denial and the steps necessary to receive a
certification in the future.
The government of any nation that is denied a certification by May
1 may, at any time thereafter, request reconsideration of that
decision. When the United States receives information from that
government demonstrating that the circumstances that led to the denial
of the certification have been corrected, U.S. officials will visit the
exporting nation as early as a visit can be arranged. If the visit
demonstrates that the circumstances that led to the denial of the
certification have indeed been corrected, the United States will
certify that nation immediately thereafter.
D. Special Timetable for 1999
The United States and the four nations that brought the WTO
complaint have agreed that the United States would implement the
recommendations and rulings of the DSB within 13 months of the adoption
of the WTO Appellate Body report by the DSB, i.e., by December 6, 1999.
Accordingly, the Department of State hereby establishes the
following timetable to apply in 1999 only:
After the date of publication of the revised guidelines, the
government of any harvesting nation that was denied certification by
May 1, 1999, may request to be certified in accordance with these
guidelines in a written communication to the Department of State
through diplomatic channels prior to September 1, 1999.
Not later than October 15, 1999, U.S. officials will seek to visit
to those nations requesting such certifications. Each visit will
conclude with a meeting between the U.S. officials and government
officials of the harvesting nation to discuss the results of the visit
and to review any identified deficiencies regarding the harvesting
nation's program to protect sea turtles in the course of shrimp trawl
fishing.
By November 1, 1999, the Department of State will notify in writing
through diplomatic channels the government of any nation that, on the
basis of available
[[Page 36952]]
information, including information gathered during such visits, does
not appear to qualify for certification. Such notification will explain
the reasons for this preliminary assessment, suggest steps that the
government of the harvesting nation can take in order to receive a
certification and invite the government of the harvesting nation to
provide, by November 15, 1999, any further information.
Between November 15 and December 6, 1999, the Department of State
will actively consider any additional information that the government
of the harvesting nation believes should be considered by the
Department in making its determination concerning certification.
By December 6, 1999, the Department of State will make formal
decisions on certification. The governments of all nations that have
requested certification under the special 1999 timetable will be
notified in writing of the decision promptly through diplomatic
channels. In the case of those nations for which certification is
denied, such notification will again state the reasons for such denial
and the steps necessary to receive a certification in the future.
The government of any nation that is denied a certification by
December 6, 1999, may, at any time thereafter, request reconsideration
of that decision. When the United States receives information from that
government demonstrating that the circumstances that led to the denial
of the certification have been corrected, U.S. officials will visit the
exporting nation as early as a visit can be arranged. If the visit
demonstrates that the circumstances that led to the denial of the
certification have indeed been corrected, the United States will
certify that nation immediately thereafter.
The Department of State recognizes that a government seeking
certification on the basis of the revised guidelines may not, by
September 1, 1999, be able to gather sufficient information necessary
to support such a request. To meet this concern, and in accordance with
its existing practice, the Department will accept requests for
certification at any time in 1999 and will process them as
expeditiously as possible. However, the Department can only commit to
making a certification determination by December 6, 1999 if it has
received the necessary information by September 1, 1999.
E. Related Determinations
As noted above, 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.
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: June 29, 1999.
Stuart E. Eizenstat,
Under Secretary of State for Economic, Business and Agriculture
Affairs.
[FR Doc. 99-17330 Filed 7-7-99; 8:45 am]
BILLING CODE 4710-09-U
