CSMS Message: 96-000357

TO : ALL ABI BROKERS.

FROM : LEO WELLS

SUBJECT : OGA-SHRIMP EMBARGO

DATE : 05/02/96

6121111
MAY 1, 1996

RES-1-FO:TC:I:E LW

CATEGORY: RES

TO: ALL PORT AND AREA DIRECTORS OF CUSTOMS

FROM: DIRECTOR, TRADE COMPLIANCE DIVISION

RE: SHRIMP TRADE EMBARGO

PASS TO: ALL NATIONAL IMPORT SPECIALISTS, IMPORT SPECIALISTS,
ENTRY OFFICERS, INSPECTORS, FP AND F OFFICERS AND
IMPORTER AND BROKER ASSOCIATIONS

SECTION 609 OF PUBLIC LAW 101-162 PROVIDES THAT SHRIMP HARVESTED
WITH TECHNOLOGY THAT MAY ADVERSELY AFFECT CERTAIN 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 OF THE
INCIDENTAL TAKING OF SEA TURTLES. THE DEPARTMENT OF STATE HAD
PREVIOUSLY DETERMINED THAT CONGRESS INTENDED SECTION 609 TO APPLY
ONLY TO CERTAIN NATIONS IN THE WIDER CARIBBEAN/WESTERN ATLANTIC
REGION. HOWEVER, ON DECEMBER 29, 1995, JUDGE THOMAS J. AQUILINO,
JR., OF THE U.S. COURT OF INTERNATIONAL TRADE, ISSUED AN ORDER IN
EARTH ISLAND INSTITUTE V. CHRISTOPHER (CIT 94-06-00321) REQUIRING
THAT SECTION 609 APPLIES TO SHRIMP HARVESTED IN ALL FOREIGN
NATIONS. IN THIS REGARD, THE STATE DEPARTMENT ISSUED A FEDERAL
REGISTER NOTICE (VOL. 61, NO. 77, DATED APRIL 19, 1996, AT PAGES
17342-17344) CONCERNING THIS MATTER AS WELL AS A SEPARATE WRITTEN
LETTER TO CUSTOMS HEADQUARTERS AS FURTHER IMPLEMENTATION GUIDANCE
IN THIS REGARD, THE FOLLOWING PROCEDURES WILL BE IMPLEMENTED.

ACTIONS:

1. COUNTRIES CERTIFIED BY STATE DEPARTMENT AS UTILIZING ACCEPTABLE
METHOD OF SHRIMP HARVESTING

THESE COUNTRIES (WHICH ARE NON-EMBARGOED COUNTRIES) ARE AS
FOLLOWS:

ARGENTINA BAHAMAS BELGIUM BELIZE
BRUNEI CANADA CHILE COLOMBIA
COSTA RICA DENMARK DOMINICAN REPUBLIC ECUADOR
EL SALVADOR GERMANY GUATEMALA GUYANA
HAITI ICELAND INDONESIA IRELAND
JAMAICA MEXICO NETHERLANDS NEW ZEALAND
NICARAGUA NORWAY OMAN PANAMA
PERU RUSSIA SRI LANKA SWEDEN
TRINIDAD/TOBAGO UNITED KINGDOM URUGUAY VENEZUELA

2. PROHIBITED IMPORTATION OF SHRIMP/SHRIMP PRODUCTS FROM OTHER
COUNTRIES (UNLESS MEETING ONE OF IMPORT EXCEPTIONS)

A. SHRIMP/SHRIMP PRODUCT EMBARGO

IMPORTATION OF SHRIMP AND PRODUCTS OF SHRIMP HARVESTED
(CAUGHT) IN ALL OTHER COUNTRIES (OTHER THAN THOSE LISTED IN
ITEM 1 ABOVE) IS PROHIBITED UNLESS QUALIFYING FOR AN IMPORT
EXCEPTION AS NOTED IN ITEM 2(C) BELOW OR COVERED BY ITEM 5
BELOW. IMPORTS FROM SURINAME AND FRENCH GUIANA PREVIOUSLY
BANNED (SURINAME SINCE MAY 1, 1993 AND FRENCH GUIANA SINCE
MAY 1, 1992) REMAIN IN EFFECT (EXCEPT THAT SHRIMP HARVESTED
IN THESE COUNTRIES MAY STILL BE IMPORTED IF THEY MEET ONE OF
THE EXCEPTIONS IN ITEM 2(C)).

B. EFFECTIVE DATE OF EMBARGO/APPLICABLE HTS TARIFF NUMBERS

UNLESS OTHERWISE EXCEPTED AS NOTED IN ITEM 2(C) BELOW OR
HARVESTED IN A CERTIFIED COUNTRY AS NOTED IN ITEM 1 ABOVE
OR OTHERWISE EXCEPTED UNDER ITEM 5 BELOW, THIS SHRIMP
EMBARGO APPLIES TO ALL IMPORTED SHRIMP AND SHRIMP PRODUCTS
EXPORTED FROM ANY FOREIGN COUNTRY ON OR AFTER MAY 1, 1996.

SHRIMP AND SHRIMP PRODUCTS CLASSIFIED UNDER THE FOLLOWING
HTS TARIFF NUMBERS ARE COVERED BY THIS EMBARGO:

0306.13.00 0306.23.00
1605.20.05 1605.20.10

C. EXCEPTIONS TO SHRIMP EMBARGO (SHRIMP HARVESTED IN
COUNTRIES NOT CERTIFIED BY STATE DEPARTMENT)

THIS EMBARGO DOES NOT APPLY TO SHRIMP/SHRIMP PRODUCTS FROM
OTHERWISE EMBARGOED COUNTRIES (WHERE SHRIMP HARVESTING IN
SUCH COUNTRIES DOES NOT ADVERSELY AFFECT SEA TURTLES) IF
ONE OF THE FOLLOWING SHRIMP HARVESTING EXCEPTIONS IS
INVOLVED:

- IMPORTED SHRIMP HARVESTED IN AN AQUACULTURE FACILITY IN
WHICH THE SHRIMP SPEND AT LEAST 30 DAYS IN PONDS PRIOR THE
BEING HARVESTED.

- IMPORTED SHRIMP HARVESTED BY COMMERCIAL SHRIMP TRAWL
VESSELS USING TEDS (TURTLE EXCLUDER DEVICES) COMPARABLE
EFFECTIVENESS TO THOSE REQUIRED IN THE UNITED STATES.

- IMPORTED SHRIMP HARVESTED EXCLUSIVELY BY MEANS THAT DO NOT
INVOLVE THE RETRIEVAL OF FISHING NETS BY MECHANICAL DEVICE
OR BY VESSELS USING GEAR THAT, IN ACCORDANCE WITH THE U. S.
SEA TURTLE PROTECTION PROGRAM, WOULD NOT REQUIRE TEDS.

- SPECIES OF SHRIMP, SUCH AS THE PANDALID SPECIES, HARVEST
IN AREAS IN WHICH SEA TURTLES DO NOT OCCUR.

D. DEFINITION OF COUNTRY OF ORIGIN FOR PURPOSES OF IMPLEMENTING
SHRIMP EMBARGO

FOR PURPOSES OF IMPLEMENTING THIS SHRIMP EMBARGO, THE
COUNTRY OF ORIGIN SHALL BE DEEMED TO BE THE COUNTRY IN WHOSE
WATERS THE SHRIMP IS HARVESTED, WHETHER OR NOT THE HARVEST
VESSEL IS FLYING THE FLAG OF ANOTHER NATION.

3. SHRIMP EXPORTER'S/IMPORTER'S DECLARATION REQUIRED FOR ENTRY OF
NON-EMBARGOED IMPORTED SHRIMP/SHRIMP PRODUCTS

- ALL NON-EMBARGOED SHIPMENTS OF SHRIMP AND SHRIMP PRODUCTS,
WHETHER FROM A CERTIFIED COUNTRY (SEE ITEM 1 ABOVE) OR FROM
A NON-CERTIFIED COUNTRY MEETING ONE OF ALLOWABLE EXCEPTIONS
(SEE ITEM 2(C) ABOVE) MUST BE ACCOMPANIED BY A STATE
DEPARTMENT FORM DSP-121, "SHRIMP EXPORTER'S/IMPORTER'S
DECLARATION" WHICH IS TO BE KEPT ON FILE BY THE IMPORTER IN
CASE CUSTOMS OR THE STATE DEPARTMENT WISHES TO VERIFY IT FOR
ENFORCEMENT PURPOSES (ALSO NOTE THIS NEED FOR U.S. HARVESTED
SHRIMP CITED IN ITEM 5 BELOW). THIS DECLARATION SHOULD HAVE
THE ORIGINAL SIGNATURE OF THE EXPORTER, IMPORTER OR BROKER
WITH POWER OF ATTORNEY AS WELL AS A RESPONSIBLE FOREIGN
GOVERNMENT OFFICIAL OF THE HARVESTING NATION WHERE BOX 7(A)
OF THE FORM (NON-CERTIFIED COUNTRY HARVESTING EXCEPTIONS) IS
APPLICABLE.

IT IS THE IMPORTER'S OBLIGATION TO HAVE ON FILE A COMPLETED
FORM DSP-121 BEFORE MAKING A CUSTOMS ENTRY OF SHRIMP OR
SHRIMP PRODUCTS FROM ANY COUNTRY (INCLUDING U.S. HARVESTED
SHRIMP EXPORTED FOR PROCESSING AND LATER RETURNED TO THE
U.S.).

- THE FORM DSP-121 IS TO BE PREPARED IN TWO COPIES: THE ORIGINAL
WITH ORIGINAL SIGNATURES TO ACCOMPANY THE SHIPMENT TO THE U.S.
AND THE OTHER ONE TO BE RETAINED BY THE EXPORTER IF NO FOREIGN
GOVERNMENT CERTIFICATION IS REQUIRED. WHERE SUCH FOREIGN
GOVERNMENT CERTIFICATION IS REQUIRED, AN EXTRA COPY SHOULD
PREPARED TO BE FURNISHED TO THE FOREIGN GOVERNMENT FOR THEIR
FILES.

STATE DEPARTMENT REQUIRES THAT THE DECLARATION BE RETAINED
FILE BY THE IMPORTER FOR A PERIOD OF 3 YEARS WHEREAS CUSTOMS
RECORDKEEPING REQUIREMENT FOR THIS DOCUMENT IS A TOTAL OF 5
YEARS.

- THE SHRIMP DECLARATION MUST ACCOMPANY THE SHIPMENT THROUGH
ALL STAGES OF THE EXPORT PROCESS, INCLUDING IN THE COURSE OF
ANY TRANSSHIPMENTS AND OF ANY TRANSFORMATION OF THE ORIGINAL
PRODUCT.

- THE DEPARTMENT OF STATE WILL MAKE COPIES OF THE SHRIMP DECLA-
RATION READILY AVAILABLE. LOCAL REPRODUCTION OF THIS FORM IS
FULLY ACCEPTABLE. IMPORTERS NEEDING A COPY OF THIS DECLA-
RATION MAY CONTACT THE STATE DEPARTMENT AT (202)647-2335 OR
(202) 647-2337.

- WHERE THE SHRIMP/SHRIMP PRODUCTS ARE TRANSSHIPPED THROUGH
INTERMEDIARY COUNTRIES OR IN WHICH SUCH GOODS ARE PROCESSED
IN AN INTERMEDIARY COUNTRY FOR RE-EXPORT TO THE U.S., THE
FORM DSP-121 MUST REMAIN WITH THE SHIPMENT UNTIL ENTRY INTO
THE U.S. (AT WHICH TIME THE IMPORTER SHOULD RETAIN SUCH FOR
ON FILE). IN THE EVENT THAT A SHIPMENT CONTAINS SHRIMP FROM
TWO OR MORE COUNTRIES, A PROPERLY EXECUTED FORM DSP-121 FROM
EACH HARVESTING COUNTRY MUST ACCOMPANY THE MULTIPLE-SOURCE
SHIPMENT (HOWEVER, THIS FORM IS TO BE KEPT ON FILE BY THE
IMPORTER).

4. DENIAL OF ENTRY FOR SHRIMP SHIPMENTS UNACCOMPANIED BY SHRIMP
EXPORTER'S/IMPORTER'S DECLARATION

A. IMPORTS FROM CERTIFIED COUNTRIES AND NON-CERTIFIED COUNTRIES
MEETING ITEM 2(C) HARVESTING EXCEPTIONS UNACCOMPANIED BY
FORM DSP-121

IN THESE CASES, CUSTOMS ENTRY IS NOT PERMITTED. ATTEMPTED
ENTRY BY IMPORTERS IN THESE CASES MAY SUBJECT THE IMPORTER
TO POSSIBLE SEVERE CUSTOMS PENALTIES AND/OR OTHER CUSTOMS
ENFORCEMENT MEASURES.

B. EXPORTATION OF SHRIMP IMPORTATIONS DENIED ENTRY

THE STATE DEPARTMENT ADVISES THAT THESE SHIPMENTS MAY BE RE-
EXPORTED TO ANOTHER COUNTRY IF ENTRY IS NOT AUTHORIZED.
MOVEMENT UNDER CUSTOMS BOND FROM A U.S. PORT TO ANOTHER U.S.
PORT IN ORDER TO FACILITATE EXPORTATION OF THE GOODS IS
ALLOWED IN THIS SITUATION. UNDER THESE CIRCUMSTANCES OF
DENIAL OF ENTRY, NO SEIZURE OF THE SHRIMP/SHRIMP PRODUCTS
SHOULD BE UNDERTAKEN BY CUSTOMS OFFICERS.

5. U.S. HARVESTED SHRIMP/SHRIMP PRODUCTS EXPORTED FOR PROCESSING
AND SUBSEQUENTLY RETURNED TO U.S.

- SHRIMP AND SHRIMP PRODUCTS HARVESTED IN THE UNITED STATES
WHICH ARE THEN EXPORTED THEREFROM TO ANOTHER COUNTRY FOR
PROCESSING AND SUBSEQUENTLY REIMPORTED INTO OUR COUNTRY IS
PERMITTED (PROVIDING SUCH SHRIMP/SHRIMP PRODUCTS INVOLVE
AN EXPORT OF U.S. HARVESTED SHRIMP TO AN UNCERTIFIED COUNTRY
OR TO ANY CERTIFIED COUNTRY). FOR THESE REIMPORTATIONS, THE
FORM DSP-121 SHOULD BE COMPLETED AS MUCH AS POSSIBLE AND IT
SHOULD ACCOMPANY THE U.S. EXPORT AND LATER RETURN TO THE U.S.
TO INDICATE TO THE DEGREE FEASIBLE THE ORIGIN OF THE GOODS.

IN THESE CASES, A COPY OF THE "SHIPPER'S EXPORTATION DECLA-
RATION" AND A COPY OF THE FOREIGN CUSTOMS ENTRY SHOULD BE
FURNISHED TO CUSTOMS FOR VERIFICATION PURPOSES WHEN THE LOCAL
CUSTOMS OFFICER DEEMS IT APPROPRIATE IN ORDER TO SUBSTANTIATE
THE CLAIM OF U.S. HARVESTED SHRIMP HAVING BEEN EXPORTED FOR
PROCESSING AND LATER REIMPORTATION INTO THE U.S.

6. QUESTIONS CONCERNING THIS ISSUANCE

QUESTIONS BY THE IMPORTING TRADE CONCERNING THIS ISSUANCE SHOULD
BE DIRECTED TO THE DEPARTMENT OF STATE, BUREAU OF OCEANS AND
INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS AT (202)
647-2335/2337. QUESTIONS BY CUSTOMS OFFICERS SHOULD BE REFERRED
TO CUSTOMS HEADQUARTERS, COMMERCIAL ENFORCEMENT, AT (202) 927
0771.

PHILIP METZGER