The text of the U.S. law states:
* the government of the harvesting nation [must provide] 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
* 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 in the United States.
More than 30 environmental organizations asked President Clinton to NOT allow the issuance of new regulations allowing a "shipment-by-shipment" approach. Nonetheless, the new rules allow importation of shrimp from a single vessel who claims to use TEDs vessels but is from a nation who has NOT adopted a regulatory program to import their shrimp.
What is the problem with the new guidelines?
1. Nations no longer have an incentive to pass regulations requiring the use of TEDs. Passage of such regulations have been the impetus for research and technical training programs for shrimp fishers in nations that have such regulations.
2. Laundering of non-TED caught shrimp becomes a cinch. All one has to do is claim that the shrimp came off a vessel using TEDs. How is it possible to monitor?
3. How can enforcement be accomplished? If a vessel is approached at sea by enforcement personnel, how is that enforcement agent to know if the vessel will claim use of TEDs two weeks later when it brings its shrimp to port?
4. The average rate of incidental take for a nation can not be comparable if only some vessels use TEDs.
For instance, if a nation has a capture rate of 1 turtle for every hundred hours of fishing, and its thousand vessels fish for 10,000 hours a week, 100 turtles per week would be captured without TEDs.
If TEDs were used on all vessels, the rate of capture is 3 percent or less (TEDs are 97+ percent effect at releasing turtles), and thus 3 or fewer turtles would be captured.
If that same nation had TEDs on only 10% of its vessels, the rate of capture would be 90 turtles for vessels with non-TED vessels and less than one turtle for TED-equipped vessels. Thus "the average rate of that incidental taking by vessels of the harvesting nation" is 30 times higher than the US rate. Thirty times higher is clearly not "comparable" as required by law.
US. federal Judge Thomas Aquilino of the US Court of International Trade recognized this and forbade the Department of State to use the new guidelines. The Department of State appealed the Judge's decision on June 4, 1998 in the Federal Court of Appeals, and won on a narrow procedural issue, not on the merits of the issue.
5. Imported shrimp will be accompanied by a form (DSP 121) signed by any government agent in the country of origin. How will Customs be able to recognize if such a person even had the authority to sign the document?
6. Form DSP 121 will not even be kept on file by US Customs, but only by the importers. Thus, there will be no way for third parties (such as the environmental community) to monitor and insure cheating is not occurring.
The decision to return to this clearly improper interpretation of the law is a serious mistake that will hurt sea turtle conservation. First, there will be much less incentive for nations to adopt TED use and more sea turtles will drown. Second, it will allow shrimp to be laundered into the US that has not been caught with TEDs. Third, it sends mixed messages to shrimp importing nations which will be used as an excuse for inaction and further can be used against the US in venues such as the World Trade Organization.
And lastly, the new guidelines will once again be challenged in Court, and the same Judge is likely to hear the case, and rule in the exact same way, forcing the Department of State to re-issue the original guidelines, causing additional confusion for nations wishing to abide by the U.S. law. The procedural technical error that allowed the overturning of the decision will not repeated.