98-23121. Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Sea Turtles in Shrimp Trawl Fishing Operations  

  • [Federal Register Volume 63, Number 167 (Friday, August 28, 1998)]
    [Notices]
    [Pages 46094-46097]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-23121]
    
    
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    DEPARTMENT OF STATE
    
    [Public Notice 2876]
    
    
    Revised Notice of Guidelines for Determining Comparability of 
    Foreign Programs for 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 
    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 to the 
    incidental taking of sea turtles. This notice revises the April 19, 
    1996 guidelines used by the Department of State in making such 
    certification, in response to a decision made by the U.S. Court of 
    Appeals for the Federal Circuit on June 4, 1998.
    
    EFFECTIVE DATE: August 28, 1998.
    
    FOR FURTHER INFORMATION CONTACT: Mr. Bill Gibbons-Fly, Office of Marine 
    Conservation, Bureau of Oceans and International Environmental and 
    Scientific Affairs, Department of State, Washington DC 20520, telephone 
    number (202) 647-2335.
    
    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. 
    law 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 (Coretta 
    caretta), Kemp's ridley (Lepidochelys kempi), green (Chelonia mydas), 
    leatherback ((Dermochelys coriacea) and hawksbill (Erermochelys 
    imbricata).
        On October 8, 1996, the Court of International Trade held that 
    Section 609 could not be enforced by the Department of State so as to 
    allow entry into the United States of any shrimp or products from 
    shrimp harvested by citizens or vessels of nations which had not been 
    certified in accordance with Section 609. Earth Island Institute v. 
    Christopher, 942, F. Supp. 597 (CIT 1996).
        On November 25, 1996, the Court of International Trade issued an 
    opinion which clarified the October 1996 ruling and stated that the 
    State Department could allow entry into the United States of any shrimp 
    or products from shrimp harvested by citizens or vessels of nations 
    which have not been certified in accordance with Section 609 so long as 
    the harvest was accomplished in a manner which did not adversely affect 
    sea turtles (e.g. shrimp harvested in an aquaculture facility under 
    certain circumstances; shrimp harvested by manual rather than by 
    mechanical methods; or shrimp harvested in areas in which sea turtles 
    do not occur). However, shrimp and products from shrimp harvested with 
    turtle excluder devices (TEDs) could not be imported unless the 
    harvesting nation was certified in accordance with Section 609. Earth 
    Island Institute v. Christopher, 948 F. Supp. 1062 (CIT 1996).
        On June 4, 1998, the U.S. Court of Appeals for the Federal Circuit 
    vacated the trial court's October 8, 1996 and November 25, 1996 rulings 
    and held
    
    [[Page 46095]]
    
    that the trial court lacked jurisdiction because the plaintiffs had 
    previously withdrawn their motion on which the court based its 
    decisions.
        In response to the June 4, 1998 decision, the Department of State 
    takes this opportunity to reaffirm the guidelines issued on April 19, 
    1996 (FR Vo.l. 61, No. 77, April 19, 1996), except as modified herein.
        The Department of State reinstates its determination that the 
    harvesting of shrimp with TEDs does not adversely affect sea turtle 
    species and that TED-caught shrimp is therefore not subject to the 
    import prohibition created by Section 609(b)(1). As described below, 
    however, the Department of State has decided to establish several 
    conditions and incentives relating to the importation of such shrimp 
    that are intended to address concerns that have been raised about the 
    effect of this determination on the conservation of sea turtle species.
        These concerns are of two basic kinds. First, there is a concern 
    that foreign harvesters will fraudulently claim that shrimp has been 
    harvested with TEDs. To protect against such fraud, the guidelines 
    issued on April 19, 1996 already require every shipment of shrimp 
    entering the U.S. market to be accompanied by a completed DSP-121 form 
    indicating either that the shrimp was harvested in a certified nation 
    or was harvested in an uncertified nation under one of the conditions 
    that do not adversely affect sea turtles species. For shrimp harvested 
    in certified nations, only the exporter must certify that the shrimp 
    was harvested in the manner indicated on the form. For shrimp harvested 
    in uncertified nations, both the exporter and a government official in 
    the harvesting nation must so certify. The Department of State has 
    decided to add to these safeguards by undertaking regular examinations 
    of the procedures that governments of uncertified nations have put in 
    place for verifying the accurate completion of the DSP-121 forms. If, 
    upon our review, such governments do not demonstrate that they have 
    adequate procedures in place, the Department will instruct the Customs 
    Service not to permit the importation of TED-caught shrimp harvested in 
    that nation.
        Second, there is a concern that foreign nations that have 
    established regulatory programs governing the incidental taking of sea 
    turtles in the course of shrimp trawl harvesting that are comparable to 
    the U.S. program will abandon or limit those programs so that only 
    shrimp vessels harvesting shrimp for export to the U.S. market will 
    actually use TEDs. Similarly, a concern has been raised that other 
    nations that may be considering the adoption of such programs may 
    instead adopt a policy of using TEDs only on vessels harvesting shrimp 
    for export to the U.S. market.
        As a matter of policy, the Department of State is of the view that 
    foreign governments should require TEDs to be used on shrimp trawl 
    vessels wherever there is a likelihood of intercepting sea turtles. 
    Available evidence does not indicate that a decision to permit the 
    importation of TED-caught shrimp from uncertified nations will cause 
    foreign governments to abandon (or to refrain from adopting) regulatory 
    programs requiring TEDs to be used in this manner. During the earlier 
    period in which the United States permitted importation of TED-caught 
    shrimp from uncertified nations, no foreign nation that had established 
    such a program abandoned or limited its program. Indeed, some Central 
    American nations expanded their TEDs programs during that time to 
    include their Pacific as well as Caribbean coasts.
        Nevertheless, in order to ensure that a decision to permit the 
    importation of TED-caught shrimp from uncertified nations does not 
    undermine the establishment of such programs, the Department of State 
    will review the effects of the decision every six months for a three-
    year period beginning May 1, 1999. If evidence indicates that the 
    decision has adversely affected sea turtle species; e.g., by prompting 
    foreign governments to abandon or limit country-wide TEDs programs or 
    to fail to adopt such programs, the Department will reassess the 
    decision.
        The Department has further decided to increase its efforts to 
    protect and conserve sea turtles through the negotiation and 
    implementation of multilateral agreements. To this end, the Department 
    shall strive to secure the entry into force of the Inter-American 
    Convention for the Protection and Conservation of Sea Turtles 
    throughout the Western Hemisphere as early as possible. The Department 
    will also intensify efforts to negotiate comparable agreements for 
    other regions where sea turtles are at considerable risk, including 
    from shrimp trawl fishing, beginning with the Indian Ocean region.
        For the sake of clarity, the April 19, 1996 guidelines are restated 
    below with certain modifications.
        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 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 and deployed with certain restricted tow times 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 (with less than a twelve foot headrope and fifteen foot 
    rope) and 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 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).
    
    [[Page 46096]]
    
        Shrimp Harvested in a Manner Not Harmful to Sea Turtles. The 
    Department 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 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 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/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 requirement that a government official of the harvesting nation 
    not 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. Notice is hereby given that the Department intends to 
    conduct periodic reviews of the system that such foreign governments 
    have put in place to verify the statements made on the DSP-121 form in 
    order to protect against fraud. 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 country. As before, the Department of State will make 
    copies of the declaration readily available; local reproduction of the 
    declarations is fully acceptable.
        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.
    
    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 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 1st of each year 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 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 when they are threatened during 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. The Department of State relies on the technical expertise of 
    NMFS to evaluate threats to sea turtles and the sea turtle protection 
    programs of the harvesting nations in order to assist in making the 
    comparability determination.
    
    [[Page 46097]]
    
        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.
        In addition, the Department seeks public comment on the best ways 
    to implement both these guidelines and Section 609 as a whole and may 
    revise these guidelines in the future accordingly.
    
    III. Related Determination
    
        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: August 18, 1998.
    Stuart E. Eizenstat,
    Under Secretary for Economic, Business and Agricultural Affairs.
    [FR Doc. 98-23121 Filed 8-27-98; 8:45 am]
    BILLING CODE 4710-09-M
    
    
    

Document Information

Effective Date:
8/28/1998
Published:
08/28/1998
Department:
State Department
Entry Type:
Notice
Document Number:
98-23121
Dates:
August 28, 1998.
Pages:
46094-46097 (4 pages)
Docket Numbers:
Public Notice 2876
PDF File:
98-23121.pdf