[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