[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