348
The Biology of Sea Turtles, Vol. II
nations is prohibited unless the individual, clearly marked shipment meets special
criteria, such as harvested by aquaculture, in cold waters, or by techniques that do
not harm sea turtles (e.g., by nets using TEDs). Two nations, Brazil and Australia,
had demonstrated that they had an enforcement and catch segregation system in
place for making individual shipment certifications (Department of State, 2002).
One consideration in determining whether a sea turtle conservation program of
a nation is comparable to that of the U.S. is their TED design. Currently there are
two sets of regulations in the U.S. The required minimum size of the TED opening
differs in the Gulf of Mexico and the Atlantic; the allowed opening is smaller in the
Gulf (Department of Commerce, 1987b). It is the minimum regulation — the smaller
opening for TEDs used in the Gulf of Mexico — that the DOS uses as their standard
during comparisons, although there are situations where the leatherback modification
is required. As the U.S. considers changes to their regulations to increase the size
of the openings (Department of Commerce, 2000), it is with the knowledge that the
changes could have impact worldwide.
Section 609, although apparently intended to protect the U.S. domestic shrimp
industry rather than to protect sea turtles (U.S. Court of Appeals for the Federal
Circuit, 2002)*, has the potential to have a very significant positive impact on sea
turtle conservation worldwide. Section 609 was an innovative solution, using the
markets to apply pressure worldwide. There still are many countries that do not
export shrimp to the U.S., but do export them elsewhere, and some harvest shrimp
without TEDs in areas where turtles are known to occur. One such market is the
European Union, which currently does not have a law comparable to Section 609,
and accepts shrimp harvested without TEDs.
13.5.2.1 U.S. Court of International Trade**
The DOS originally interpreted PL101-162, Section 609 to apply only within the
Wider Caribbean and Western Atlantic region. Environmental and animal rights
groups filed suit in the U.S. Court of International Trade, primarily to overturn the
limited geographic scope of application of the law by the DOS. In December 1995
the Court ruled that Congress intended Section 609 to apply on a worldwide basis
and ordered the department to comply. A request by DOS for a 1-year delay was
denied by the Court. As a result, the importation of shrimp from many nations was
prohibited on May 1, 1996. The plaintiffs reopened the litigation to reverse one
aspect of the changes that DOS made — to allow an individual shipment from a
noncertified country, if that shipment could be certified to contain only shrimp
harvested under conditions that were not harmful to sea turtles. The plaintiffs argued
that unless there was a program nationwide, all shrimp imports from the country
should be prohibited according to Section 609. The Court originally ruled in favor
of the plaintiffs, but the decision was vacated in 1998 by the U.S. Court of Appeals
* The U.S. Court of Appeals for the Federal Circuit and the World Trade Organization reached different
conclusions about the purpose of the law. See discussion in Section 13.5.2.2.
** Information for this section is taken from U.S. Court of Appeals for the Federal Circuit. 2002. 001569, -1581, -1582, 36 pp. The full document can be viewed and downloaded at http://www.ll.georgetown.edu/Fed-Ct/Circuit/fed/opinions/00-1569.html.
1123 book.book Page 348 Thursday, November 14, 2002 11:50 AM
The Biology of Sea Turtles, Vol. II
nations is prohibited unless the individual, clearly marked shipment meets special
criteria, such as harvested by aquaculture, in cold waters, or by techniques that do
not harm sea turtles (e.g., by nets using TEDs). Two nations, Brazil and Australia,
had demonstrated that they had an enforcement and catch segregation system in
place for making individual shipment certifications (Department of State, 2002).
One consideration in determining whether a sea turtle conservation program of
a nation is comparable to that of the U.S. is their TED design. Currently there are
two sets of regulations in the U.S. The required minimum size of the TED opening
differs in the Gulf of Mexico and the Atlantic; the allowed opening is smaller in the
Gulf (Department of Commerce, 1987b). It is the minimum regulation — the smaller
opening for TEDs used in the Gulf of Mexico — that the DOS uses as their standard
during comparisons, although there are situations where the leatherback modification
is required. As the U.S. considers changes to their regulations to increase the size
of the openings (Department of Commerce, 2000), it is with the knowledge that the
changes could have impact worldwide.
Section 609, although apparently intended to protect the U.S. domestic shrimp
industry rather than to protect sea turtles (U.S. Court of Appeals for the Federal
Circuit, 2002)*, has the potential to have a very significant positive impact on sea
turtle conservation worldwide. Section 609 was an innovative solution, using the
markets to apply pressure worldwide. There still are many countries that do not
export shrimp to the U.S., but do export them elsewhere, and some harvest shrimp
without TEDs in areas where turtles are known to occur. One such market is the
European Union, which currently does not have a law comparable to Section 609,
and accepts shrimp harvested without TEDs.
13.5.2.1 U.S. Court of International Trade**
The DOS originally interpreted PL101-162, Section 609 to apply only within the
Wider Caribbean and Western Atlantic region. Environmental and animal rights
groups filed suit in the U.S. Court of International Trade, primarily to overturn the
limited geographic scope of application of the law by the DOS. In December 1995
the Court ruled that Congress intended Section 609 to apply on a worldwide basis
and ordered the department to comply. A request by DOS for a 1-year delay was
denied by the Court. As a result, the importation of shrimp from many nations was
prohibited on May 1, 1996. The plaintiffs reopened the litigation to reverse one
aspect of the changes that DOS made — to allow an individual shipment from a
noncertified country, if that shipment could be certified to contain only shrimp
harvested under conditions that were not harmful to sea turtles. The plaintiffs argued
that unless there was a program nationwide, all shrimp imports from the country
should be prohibited according to Section 609. The Court originally ruled in favor
of the plaintiffs, but the decision was vacated in 1998 by the U.S. Court of Appeals
* The U.S. Court of Appeals for the Federal Circuit and the World Trade Organization reached different
conclusions about the purpose of the law. See discussion in Section 13.5.2.2.
** Information for this section is taken from U.S. Court of Appeals for the Federal Circuit. 2002. 001569, -1581, -1582, 36 pp. The full document can be viewed and downloaded at http://www.ll.georgetown.edu/Fed-Ct/Circuit/fed/opinions/00-1569.html.
1123 book.book Page 348 Thursday, November 14, 2002 11:50 AM