Turtle Island Restoration Network v. Evans , 284 F.3d 1282 ( 2002 )

CLEVENGER, Circuit Judge.

This case concerns the implementation of section 609(b) of Public Law 101-162, which prohibits the import of shrimp which have been harvested with fishing technology that may harm sea turtles. Despite having ruled that the government’s regulations implementing section 609(b) were not in accordance with that statute, the Court of International Trade refused to enter an injunction directing the government to comply with the law. Plaintiffs, a coalition of environmental organizations and concerned citizens (“Turtle Island”), appeal the Court of International Trade’s decision to withhold both an injunction and attorney fees under the Equal Access to Justice Act. Defendants, government officials charged with implementing section 609(b), cross-appeal the judgment of the Court of International Trade that their regulations violate the statute. We hold that the government’s regulations are a permissible implementation of the statute and that Turtle Island is not entitled to injunctive relief or attorney fees.

BACKGROUND

Since 1987, United States regulations have required that shrimp trawlers generally install turtle excluder devices (“TEDs”) when operating in United States waters where sea turtles are to be found. 50 C.F.R. §§ 223.206, 223.207 (2001). Shrimpers sweep many other denizens of the sea (“bycatch”) into their nets when they trawl for shrimp. But unlike fish or shrimp, sea turtles are reptiles and must breathe air. While sea turtles can remain submerged for up to 90 minutes at a time, trawl nets typically are deployed for periods longer than 90 minutes before being hauled up. Sea turtles will drown if they are caught in shrimp nets and held underwater for long periods of time. When fitted into trawl nets, TEDs prevent sea turtles from being retained in the nets— typically by means of a metal grid barring entry to the closed end of the net. The grid bars are spaced so as to let shrimp pass through the grid into the closed end of the net, but the much larger sea turtles cannot pass through and are instead directed out an “escape hatch” above or below the grid.

The domestic shrimp industry strongly opposed the imposition of TED requirements in United States waters. See, e.g., State of Louisiana, ex rel. Guste v. Verity, 853 F.2d 322 (5th Cir.1988). However, the case before us concerns not domestic regulations, but arises instead from nearly a decade’s worth of litigation over the enforcement of a statute designed to impose TEDs on shrimping vessels of foreign nations: The Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990, Pub.L. 101-162, Title VI, § 609, 103 Stat. 1037 (1989) (codified at 16 U.S.C. § 1537 note (2000)) (“section 609”).

The full text of section 609 is as follows:

(a) The Secretary of State, in consultation with the Secretary of Commerce, shall, with respect 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—

(1) initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of such species of sea turtles;

(2) initiate negotiations as soon as possible with all foreign governments which are engaged in, or which have persons or companies engaged in, commercial fishing operations which, as determined by the Secretary of Commerce, may affect adversely such species of sea turtles, for the purpose of entering into bilateral and multilateral treaties with such countries to protect such species of sea turtles;

(3) encourage such other agreements to promote the purposes of this section with other nations for the protection of specific ocean and land regions which are of special significance to the health and stability of such species of sea turtles;

(4) initiate the amendment of any existing international treaty for the protection and conservation of such species of sea turtles to which the United States is a party in order to make such treaty consistent with the purposes and policies of this section; and

(5) provide to the Congress by not later than one year after the date of enactment of this section (Nov. 21, 1989)—

(A) a list of each nation which conducts commercial shrimp fishing operations within the geographic range of distribution of such sea turtles;

(B) a list of each nation which conducts commercial shrimp fishing operations which may affect adversely such species of sea turtles; and

(C)a full report on—

(i) the results of his efforts under this section; and

(ii) the status of measures taken by each nation listed pursuant to paragraph (A) or (B) to protect and conserve such sea turtles.

(b)(1) In General. — The importation of shrimp or products from shrimp which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited not later than May 1, 1991, except as provided in paragraph (2).

(2) Certification Procedure. — The ban on importation of shrimp or products from shrimp pursuant to paragraph (1) shall not apply if the President shall determine and certify to the Congress not later than 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 the 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.

Section 609 is divided into two parts, (a) and (b). Part (a) directs the Secretary of State to initiate international negotiations with the aim of protecting those species of sea turtles protected by the domestic TED requirements.¹ Part (b)(1) restricts the importation of shrimp which have been harvested in a manner that may endanger those species of sea turtles. Part (b)(2) establishes a certification procedure,² by which nations are exempted from the ban either if they have adopted regulatory measures reducing the incidental catch of sea turtles (e.g., a requirement that their shrimp fleets be equipped with TEDs), or if their operations do not pose any threat to sea turtles (e.g., no endangered turtles inhabit the waters fished by that nation).

This case requires us to decide whether section 609(b)(2)’s certification procedure is the only way a foreign nation may comply with section 609(b). Under the State Department’s current regulations (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, 64 Fed.Reg. 36,946 (July 8, 1999) (“the 1999 Guidelines”)), shrimp may be imported into the United States under one of two conditions. If the exporter attests that the nation in which the shrimp originated (that is, in whose waters the shrimp were harvested) has been certified under section 609(b)(2), the shrimp may be imported without further ado. Alternatively, if the country of origin has not been certified under section 609(b)(2), shrimp harvested in its waters may still enter the United States if both the exporter and an official of the harvesting nation attest that the individual shipment of shrimp in question was harvested under conditions that do not adversely affect sea turtles. Shipments meeting these conditions include those of aquaculture-grown shrimp, hand-caught shrimp, and shrimp harvested by vessels equipped with TEDs.³ Thus, under the government’s interpretation of section 609, a country may export shrimp to the United States either by requiring its entire fleet to be equipped with TEDs (and becoming certified under section 609(b)(2)), or by requiring TEDs only on those vessels catching shrimp destined for the United States market.⁴

Turtle Island interprets section 609 somewhat differently. Turtle Island believes that section 609 requires the government to prohibit the importation of all shrimp from uncertified countries. Under Turtle Island’s interpretation of the statute, certification is the only way in which shrimp may be imported into the United States. In practice, this means that in countries where shrimp and endangered sea turtles frequent the same waters, all shrimping vessels must be equipped with TEDs if that country wishes to export shrimp to the United States.⁵ Turtle Island argues that this interpretation is mandated by the plain language, intent, and legislative history of the statute.

The contest between Turtle Island and the government over the interpretation of section 609 has a long and tortured history, chiefly marked by the government’s Protean efforts to escape the statutory interpretations being imposed upon it by the Court of International Trade. In the government’s initial implementation of section 609 (the 1991 and 1993 Guidelines), the embargo was imposed only against shrimp from the Gulf of Mexico Caribbean Western Atlantic Ocean sea areas, harvests in those areas being the apparent focus of section 609 when the statute was enacted. See Revised Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 58 Fed.Reg. 9015 (Feb. 18, 1993); Turtles in Shrimp Trawl Fishing Operations Protection; Guidelines, 56 Fed.Reg. 1051 (Jan. 10, 1991). But under the 1991 and 1993 Guidelines, national certification under section 609(b)(2) was the only way a harvesting nation could export shrimp to the United States. The import of shrimp from uncertified countries was prohibited, even if those particular shrimp had been caught using TEDs.

In 1992, the Earth Island Institute, a nonprofit environmental group and Turtle Island’s immediate predecessor, filed suit against the government in the Northern District of California. Earth Island sought to force the government to initiate negotiation of international agreements for sea turtle conservation as demanded by section 609(a), and sought to force the government to apply the embargo against all shrimp-exporting countries, not just those of the wider Caribbean area. Earth Island was rebuffed on both fronts. The Ninth Circuit refused to enforce the negotiation directives of section 609(a), reasoning that since the power to negotiate with foreign nations was committed to the executive branch, enforcement of section 609(a) would violate the constitutional separation of powers. Earth Island Inst. v. Christopher, 6 F.3d 648, 653 (9th Cir.1993). Furthermore, the Ninth Circuit ruled that because 28 U.S.C. § 1581 (i) vests exclusive jurisdiction over embargoes and other trade restrictions in the Court of International Trade, an action to compel enforcement of the import prohibitions of section 609(b) could lie only with that court. Id. at 652.

Earth Island proceeded to refile its suit in the Court of International Trade, seeking to force the government to apply section 609(b)’s import restrictions worldwide, not just against shrimp harvested in the wider Caribbean region. The Court of International Trade agreed with Earth Island that the embargo should be applied across the board. The Court of International Trade also made clear its view that the government had limited enforcement of section 609(b) to the Caribbean region not because the government genuinely believed the statute to be so limited, but because of the economic and political fallout that would ensue from targeting countries outside the wider Caribbean. See Earth Island Inst. v. Christopher, 913 F.Supp. 559, 576-77 (Ct. Int’l Trade 1995). Finding no geographical restrictions in the text of section 609, the Court of International Trade concluded that the government had not been properly enforcing section 609(b) and directed the government to prohibit the importation of shrimp— “wherever harvested in the wild” — that were harvested with commercial fishing technology that may adversely affect the species of sea turtles protected by section 609. Id. at 580.

In response to the Court of International Trade’s decision (and following the Court of International Trade’s refusal to grant a one-year extension of time for enforcement, Earth Island Inst. v. Christopher, 922 F.Supp. 616 (Ct. Int’l Trade 1996)), the' Department of State issued new regulations implementing section 609(b). Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Turtles in Shrimp Trawl Fishing Operations, 61 Fed.Reg. 17,342 (April 19, 1996). Complying with the Court of International Trade’s order in Earth Island, the 1996 Guidelines restricted imports of shrimp harvested from all waters inhabited by sea turtles, not just those of the wider Caribbean region. However, in contrast to the 1991 and 1993 Guidelines, the 1996 Guidelines permitted imports of shrimp from waters of uncertified nations-so long as the exporter presented a declaration (the DSP 12 form) attesting that the shrimp accompanying the declaration were harvested under conditions that did not adversely affect the protected species of sea turtles. Thus, under the 1996 Guidelines, a nation did not need to be certified under section 609(b)(2) in order to export shrimp to the United States. Instead, a nation could comply with section 609 simply by employing TEDs on those vessels harvesting shrimp bound for the United States market.

Earth Island was less than pleased with the government’s new interpretation of section 609. It filed with the Court of International Trade a “motion to enforce” the Court of International Trade’s 1995 judgment, on the grounds that permitting import of TED — caught shrimp from un-certified nations would not conform with the Court of International Trade’s 1995 order directing the State Department to implement section 609 world-wide.

The Court of International Trade agreed with Earth Island that section 609(b)(l)’s embargo should be applied on a nation-by-nation basis, rather than on a shipment-by-shipment basis. The Court of International Trade’s interpretation of section 609 rested on two grounds. First, the Court of International Trade refused to read the language of section 609(b)(1) in isolation. Reasoning that section 609(a) directed the Secretary of State to pursue negotiations with foreign nations, and that section 609(b)(2) required the President to determine whether a foreign nation’s regulatory programs met United States standards for protection of sea turtles, the Court of International Trade concluded that section 609(b)(2) should be read in pari materia with the other sections of section 609. As such, the import restrictions of section 609(b)(2) should be applied nation-by-nation, and not shipment-by-shipment. Earth Island Inst. v. Christopher, 942 F.Supp. 597, 603-04 (Ct. Int’l Trade 1996).

The Court of International Trade’s second rationale was based on its earlier conclusion that section 609 supplemented the Endangered Species Act (“ESA”) and should also be read in pari materia with the ESA. Earth Island Inst. v. Christopher, 890 F.Supp. 1085, 1092 (Ct. Int’l Trade 1995). The Court of International Trade took from the ESA the principle that “the plain intent of Congress in enacting this statute was to halt and reverse the trend towards species extinction, whatever the costs.” Earth Island, 942 F.Supp. at 606 (quoting Earth Island, 913 F.Supp. at 576, in turn quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)). Accepting (in the absence of contrary evidence from the government) Earth Island’s claim that the shipment-by-shipment approach would undermine the incentive for uncertified nations to become certified, the Court of International Trade agreed with Earth Island that the 1996 Guidelines would “evis-ceratfe] the goal of Congress in enacting section 609.” Earth Island, 942 F.Supp. at 604. Accordingly, the Court of International Trade prohibited the government from permitting the import of shrimp unless the harvesting nation had been certified under section 609(b)(2). Id. at 617.

There followed another ruling from the Court of International Trade, denying the government’s request for a stay of enforcement but clarifying that the embargo did not apply to aquacultured shrimp or hand-caught shrimp, as these fishing technologies would not adversely affect sea turtles and were exempted from section 609 from the start. Earth Island Inst. v. Christopher, 948 F.Supp. 1062, 1069 (Ct. Int’l Trade 1996). However, Earth Island had sought to withdraw its “motion to enforce” shortly before the Court of International Trade issued its first ruling on the 1996 Guidelines, leaving only its request for attorney fees before the Court of International Trade. Earth Island, 942 F.Supp. at 602 n. 7. The stated purpose of its attempted withdrawal was to preserve Earth Island’s right to gather additional evidence and to challenge the government’s revised guidelines in a separate action.⁶ Id.; Earth Island Inst. v. Al-bright, 147 F.3d 1352, 1355 (Fed.Cir.1998). The Court of International Trade denied Earth Island permission to withdraw, basing its refusal on the public interest at stake in proper enforcement of section 609. Earth Island, 942 F.Supp. at 602 n. 7.

Upon the government’s appeal to this court, we held that Earth Island “did not request permission to withdraw, but unilaterally and unconditionally withdrew its motion.” Earth Island, 147 F.3d at 1356. We further held that Earth Island’s unconditional withdrawal ended the controversy between the parties, thereby terminating the Court of International Trade’s jurisdiction over the case except for the matter of attorney fees. Id. Accordingly, we vacated the Court of International Trade’s orders that had directed the State Department to enforce section 609 on a nation-by-nation basis. Id. at 1358.

Meanwhile, during the period that the Court of International Trade had enjoined the government from permitting the import of TED-caught shrimp from uncerti-fied nations, a group of such nations— India, Pakistan, Malaysia, and Thailand— brought a proceeding against the United States before the Dispute Settlement Body of the World Trade Organization (“WTO”), arguing that the enforcement of section 609 under the 1996 Guidelines violated certain provisions of the 1994 General Agreement on Tariffs and Trade (“GATT”). Ultimately, the WTO Appellate Body ruled that section 609 was a permissible conservation measure under GATT Article XX, but that the United States’ enforcement of section 609 was discriminatory. United States — Import Prohibition of Certain Shrimp and Shrimp Products, 1998 WL 720123 (Oct. 12, 1998). Specifically, the WTO pointed to the fact that shrimp caught using methods identical to those employed in the United States (ie., with TEDs) were embargoed solely because they were caught in the waters of uncerti-fied countries. Id. at *47. And while the statute itself might permit a flexible approach, the 1996 Guidelines demanded that a country adopt a regulatory regime identical to that of the United States as the only path to certification. Id. at *46. Furthermore, the failure of the United States to initiate serious international negotiations to protect sea turtles (as demanded by section 609(a)) supported a finding of unjustifiable discrimination. Id. at *51.

After this court vacated the Court of International Trade’s injunction against the government, the State Department issued new Guidelines reinstating importation of shrimp from uncertified countries. Revised Notice of Guidelines for Determining Comparability of Foreign Programs for the Protection of Sea Turtles in Shrimp Trawl Fishing Operations, 63 Fed.Reg. 46,094 (Aug. 28, 1998). Like the 1996 Guidelines, the 1998 Guidelines permitted import of shrimp from uncertified countries if the shipment was accompanied by a DSP 12 form attesting that the shrimp had been harvested by vessels equipped with TEDs. Its earlier victory having been negated for lack of jurisdiction, Earth Island again filed suit challenging the new regulations in the Court of International Trade, which (not surprisingly) again found that importation of shrimp from uncertified countries violated the provisions of section 609(b). Earth Island Inst. v. Daley, 48 F.Supp.2d 1064, 1081 (Ct. Int’l Trade 1999). Soon afterwards, the State Department issued its 1999 Guidelines. Designed to meet the WTO’s objections, the 1999 Guidelines took a more flexible stance on which regulatory programs would merit national certification, but the 1999 Guidelines continued to permit importation of TED-caught shrimp from uncertified countries. Accordingly, the Court of International Trade yet again held that the shipment-by-shipment approach violated section 609 and entered a final declaratory judgment in favor of Turtle Island — which by now had been spun off as an independent entity from the Earth Island Institute. Turtle Island Restoration Network v. Mallett, 110 F.Supp.2d 1005, 1018 (Ct. Int’l Trade 2000).

However, although the Court of International Trade concluded “without reservation that the plaintiffs have prevailed ” in their argument that the importation of TED-caught shrimp from uncertified nations violated the terms of section 609, id., the Court of International Trade denied Turtle Island injunctive relief. Moreover, the Court of International Trade refused to hold that the government’s legal position was not substantially justified, barring Turtle Island from collecting attorney fees under the Equal Access to Justice Act. The Court of International Trade appeared to base these conclusions on the fact that of all the countries exporting shrimp to the United States, only Brazil and Australia were not certified, suggesting that relatively few sea turtles were being harmed in the waters of uncertified nations that served the United States shrimp market. Id. at 1011-12. Moreover, no nation that had previously established a nation-wide TED program had limited its regulatory program in favor of equipping only those vessels that served the United States market with TEDs. Id. at 1013. Given the absence of proof that shrimp trawling by uncertified nations was currently contributing significantly to sea turtle mortality, and in apparent recognition of the traditional reluctance of courts to intrude into matters of foreign relations, the Court of International Trade concluded, somewhat cryptically:

given the facts and circumstances of this case, which obviously transcend purely domestic concerns, this court is unable to conclude that the government’s position currently is not substantially justified ....

The court’s inability means not only that plaintiffs application for any award of fees etc. cannot be granted, the motion for injunctive relief based upon the declaratory judgment in their favor must also be denied.

Id.

After the Court of International Trade issued its final judgment in Turtle Island Restoration Network v. Mallett, Malaysia renewed its challenge to the United States over enforcement of section 609 before a panel of the Dispute Settlement Body of the World Trade Organization. However, the panel ruled, and the Appellate Body affirmed, that the enforcement of section 609 under the State Department’s 1999 Guidelines was justified under Article XX of GATT. These conclusions were based in part on the Court of International Trade’s refusal to grant Turtle Island an injunction against the government, since under that ruling the United States continued to permit the import of TED-caught shrimp from uncertified countries. United States—Import Prohibition of Certain Shrimp and Shrimp Products, 2001 WL 671012, at *101 (Jun. 15, 2001). Moreover, the United States had initiated serious international negotiations for sea turtle protection, and now required nations to establish for certification a sea turtle program comparable in effectiveness to that of the United States — not necessarily one identical to that of the United States. United States — Import Prohibition of Certain Shrimp and Shrimp Products, 2001 WL 126572, at *38-49; *51-54 (Oct. 22, 2001). Consequently, the enforcement of section 609 was ruled a permissible conservation measure and not discriminatory under Article XX of GATT.

Turtle Island now appeals the Court of International Trade’s denial of an injunction and attorney fees. The government appeals the judgment of the Court of International Trade that the importation of TED-caught shrimp from uncertified countries as permitted by the 1999 Guidelines violates section 609. We exercise appellate jurisdiction over'the final decision of the Court of International Trade under 28 U.S.C. § 1295(a)(5).

I

We first consider whether the Court of International Trade reached the proper construction of section 609, as the propriety of the Court of International Trade’s denial of injunctive relief and attorney fees will hinge on whether Turtle Island or the government has advocated the appropriate interpretation of the statute. We must therefore decide whether section 609(b)(1) of Pub.L. 101-162 prohibits importation of all shrimp or shrimp products from a country not certified under section 609(b)(2), or whether the government may permit the import of individual shipments from uncertified countries if exporters represent that those particular shipments were caught without the use of commercial fishing technology that may adversely affect those species of sea turtles protected by domestic law. Statutory interpretation is a matter of law that we review without deference to the interpretation reached by the Court of International Trade. SKF USA Inc. v. United States, 263 F.3d 1369, 1378 (Fed.Cir.2001).

A

We begin, as in all questions of statutory interpretation, with the plain words of the law, and in this case those words weigh heavily in the government’s favor. The operative language of the embargo is found in section (b)(1), which prohibits importation of shrimp, “which have been harvested with commercial fishing technology” that may harm sea turtles, except as provided in (b)(2). The clause “which have been harvested” modifies “shrimp.” “Shrimp” are discrete objects, each of which has either been harvested with technology harmful to sea turtles or not. The statute distinguishes between the former shrimp, which are embargoed, and the latter shrimp, which are not. The plain language of the statute provides no basis for embargoing shipments of shrimp which have not been harvested with commercial fishing technology that may harm sea turtles. Because TED-caught shrimp have not been harvested with commercial fishing technology that may harm sea turtles, the statutory language does not support embargoing TED-caught shrimp from uncertified countries. Moreover, if certification under (b)(2) was the only way shrimp could be imported into the United States, then “which have been harvested with commercial fishing technology which may affect adversely such species of sea turtles” in (b)(1) is largely superfluous language. We cannot see how the “harvested with commercial fishing technology” language could consistently be interpreted to permit import of some shrimp that have been harvested without adverse effect on sea turtles — such as aquacultured or hand-caught shrimp from uncertified countries — but to ban the import of other shrimp that have been harvested without adverse effect on sea turtles — such as TED-caught shrimp from uncertified countries.

Recognizing the primacy of the plain language in the hierarchy of statutory interpretation, Turtle Island tries to advance several arguments under that rubric. It argues that its interpretation is consistent with congressional intent, with other portions of the statute, and with the law’s ultimate purpose — all of which might be true but none of which states an argument based on the plain language of the statute. Turtle Island cannot escape the fact that it seeks to interpolate words into the plain language of the statute, reading 609(b)(1) as an embargo on “shrimp which have been harvested from a nation that employs commercial fishing technology which may affect adversely said species of sea turtles.” While the text might not absolutely bar such an interpolation, this interpretation does not comport with the most direct reading of the law’s words.

In any event, we do not find persuasive the argument based on conformity with the remaining sections of section 609. Turtle Island points to section 609(a), which directs the Secretary of State to negotiate with foreign nations to protect sea turtles, and to section 609(b)(2), which establishes a procedure for nations to be certified as exempt from the embargo of section 609(b)(1). The Court of International Trade drew from this structure the conclusion that, reading those sections of the law in pari materia with the embargo provisions, the embargo provisions must refer to other nations, and not to individual shipments of shrimp. Earth Island, 942 F.Supp. at 603-604. We cannot agree with this reasoning. The fact that other portions of the statute direct the Secretary of State to negotiate with and certify nations does not demand that the Secretary apply the embargo to entire nations as well. One negotiates with nations and imports shrimp, not vice versa. Congress drafted sections 609(a) and 609(b)(2) to refer to nations because the negotiation and certification provisions could not have been drafted in any other way — not because Congress made a conscious choice to focus them on nations rather than shipments. An embargo provision, on the other hand, might be drafted either to apply to shipments or to nations, and we do not think Congress was foreclosed from embargoing individual shipments of shrimp simply because it included the embargo provisions in a law that also speaks of nations. We find nothing inherently insensible about applying the negotiation and certification provisions to nations on the one hand, and the embargo provisions to particular shipments of shrimp on the other.

B

Both sides also lay claim to the legislative history of section 609. The State Department finds some congressional intent to delegate the definition of which shrimp should be embargoed, while Turtle Island finds both the nation-by-nation principle and the conclusion that section 609’s principal goal is the protection of endangered sea turtle species worldwide. We cannot find support for the State Department’s position. While Congress may have intended the administering agency to define which methods of harvesting shrimp may adversely affect sea turtles, we find no intent to delegate the power to define the scope of the embargo itself. But our disagreement with Turtle Island’s view of the legislative history is more profound and more damaging to its case. For we find nothing in the legislative history to mandate a nation-by-nation approach, and we find little, if any, indication that minimizing sea turtle drownings was Congress’s main concern when it enacted section 609.

The extant legislative history of section 609 consists mostly of speeches on the Senate floor. Turtle Island emphasizes portions of this record in which Senators speak of “other nations” and “countries” to support its position that section 609(b)(1) was intended to operate nation-by-nation. We are not inclined to assign much weight to these excerpts. Although the Senators spoke more in terms of nations than of shipments or vessels, their usage was not consistent. For example, Appropriation Chairman Hollings described the provision when brought to the Senate floor as:

It calls for a ban on imports of shrimp from any nation that: First, fails to adopt a regulatory program for turtle protection which is comparable to that of the United States; and second, has higher incidental catches of sea turtles than U.S. shrimpers.

135 Cong. Rec. 22,493-94 (1989) (emphasis added), but described the final version after conference with the House as follows:

At the request of the House managers we approved an addition on the ban on imported shrimp not harvested by vessels using TED’s shall not apply [sic] if 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.”

135 Cong. Rec. 26,613 (1989) (emphasis added). The relevant provisions of the bill had not changed; Senator Hollings’s shift simply indicates how loosely Senators described the bill. Given the imprecision and informality of the floor comments, we are loath to assemble congressional intent from such scraps of casual word choice.

Furthermore, most of the comments marshaled by Turtle Island do not reflect the Senate’s interpretation of the embargo provisions of section 609(b)(1), because those comments were made in support of a bill that lacked any embargo provisions at all. As first introduced by Senator Breaux, “Amendment No. 365” included only the provisions now appearing as 609(a), requiring the Secretary to initiate negotiations for international sea turtle conservation and to -report on other nations’ efforts to protect sea turtles. See 135 Cong. Rec. 15,508 (1989). Apparently, an earlier measure had included some kind of embargo, but that measure was never brought to the floor because the Senate Finance Committee feared that such an embargo might violate the GATT. See id. at 15,509 (statements of Sens. Bentsen and Lott). The floor statements in support of the original bill refer to “other nations” and “countries” because international negotiations were the sole focus of the original bill. While the supporters of the original bill clearly hoped to induce foreign nations to adopt TED requirements, we cannot derive from their description of the negotiation provisions a nation-by-nation approach to the embargo.

The original “Amendment No. 365” was not brought to a vote, but soon resurfaced as a measure including the embargo provisions of 609(b) as well as the negotiation provisions of 609(a). We have no indication why the new embargo provisions did not provoke concerns about GATT violations. But what is unmistakably clear from the discussion on the Senate floor is that the primary purpose of the bill was to protect the domestic shrimping industry, and not the sea turtle. The advocates of the bill were Senators from Gulf states who had long opposed the domestic TED regulations because they believed that TEDs reduced shrimp catches. See 135 Cong. Rec. 22,554-55 (1989) (statements of Sens. Johnston and Breaux). The Senators who spoke in favor (none spoke against) feared that American shrimpers would be at a disadvantage competing in the domestic market with foreign shrimpers, who were not burdened with TED regulations. By imposing TED requirements on foreign shrimpers exporting to the United States, the sponsors of section 609 hoped to provide American shrimpers with a level playing field. Senator Shelby’s comments in support of the original version of the bill (lacking the embargo provisions) explain this reasoning well:

Shrimpers are having numerous problems in using the TED’s. It is my understanding that the Gulf of Mexico has been overwhelmed with seagrass in recent months causing the clogging of the openings of the TED’s. Consequently, shrimpers are losing considerable amounts of their catch, which translates into reductions in income. There has been little evidence to date to indicate that the use of TED’s will significantly affect the survival rate of sea turtles .... The U.S. shrimp industry is being treated unfairly in being asked to risk economic ruin while others are not required to do similarly. The burden of saving the sea turtles should be shared equally.... In addition, other countries have extensive commercial shrimp operations that are not subjected to turtle conservation. This places our shrimp industry in a noncompetitive situation because these countries still share the lucrative U.S. market with our domestic shrimpers. Our domestic shrimpers must have a level playing field.

135 Cong. Rec. 15,511 (1989).

Similar arguments were advanced by Senators Bentsen, id. at 15,509, Lott, id. at 15,509-10, Breaux, id. at 15,508-09, and Johnston, 135 Cong. Rec. 22,554 (1989). Each expressed his concern that the domestic shrimp industry was threatened because U.S. shrimpers, bearing the alleged increased costs of TEDs, would have to compete with foreign shrimpers not so burdened. By requiring or encouraging other nations to catch shrimp bound for the United States market with TEDs, imported shrimp would cost more and be less competitive with domestic shrimp. Alternatively, if foreign shrimp was embargoed, the price of shrimp would rise, also benefiting the domestic shrimp industry. Id. (statement of Sen. Johnston).

Thus, to the extent legislative history is available, we find that Congress with remarkable unanimity was focused on protecting the domestic shrimp industry, not the sea turtle, when it enacted section 609. Many of the comments made on the Senate floor reflected deep skepticism about the effectiveness of TED requirements, and about the wisdom of placing sea turtle conservation above the economic well-being of domestic shrimpers. We therefore cannot agree with Turtle Island that the fidelity of the government’s implementation of section 609 should be measured solely by how effectively the measures protect endangered sea turtles.

Nor can we agree with Turtle Island that requiring foreign nations to install TEDs on vessels not serving the United States market would advance Congress’s aim of achieving parity for the domestic shrimp industry. Congress did not seem to foresee that a nation might equip vessels serving the United States market with TEDs but forego TEDs on its other vessels. Turtle Island argues that requiring such nations to equip their entire fleets with TEDs would benefit the United States shrimp industry, because it would place domestic shrimpers exporting shrimp to overseas markets on an equal footing with foreign shrimpers exporting shrimp to the same markets. But coursing through the legislative history is an unswerving focus on the United States market, not overseas markets. There is no indication from the legislative history, and no evidence in the record, that domestic shrimpers compete in foreign markets.

Whether or not Congress was correct that the domestic TED requirements handicapped domestic shrimpers, Congress was concerned with the effects of TEDs on the United States market alone. Congress enacted a measure applicable to only those sea turtles encountered by American shrimpers,⁷ and Congress enacted the embargo to protect what it saw as unfair competition in the American market. As such, Congress was concerned with those foreign vessels harvesting shrimp for the United States market, not foreign vessels harvesting shrimp for foreign markets. We find Congress’s intent met by the State Department’s current system of enforcing section 609(b), which regulates all imports of shrimp into the United States market. The contemporary legislative history provides no basis for extending section 609(b)’s reach in an attempt to control how shrimp bound for foreign markets are harvested.

C

We And further indication that section 609(b)(1) refers to shipments, not nations, when we compare it to similar statutes.⁸ Congress has drafted other statutes with explicit nation-by-nation embargoes, but did not do so in the case of section 609(b). Congress has enacted nation-by-nation embargoes triggered by foreign restrictions on fishing rights of U.S. vessels:

the Secretary of the Treasury shall immediately take such action as may be necessary and appropriate to prohibit the importation into the United States ... fish or fish products, from any fishery of the foreign nation concerned, which the Secretary of State finds to be appropriate....

16 U.S.C. § 1825(b)(2) (2000) (emphasis added); by nations conducting large-scale driftnet fishing outside their exclusive economic zones:

The President ... shall direct the Secretary of the Treasury to prohibit the importation into the United States of fish and fish products ... from that nation.

16 U.S.C. § 1826a(b)(3)(A) (2000) (emphasis added); and by fishing operations or other trade threatening endangered species:

the President may direct the Secretary of the Treasury to prohibit the bringing or the importation into the United States of any products from the offending country for any duration as the President determines appropriate and to the extent that such prohibition is sanctioned by the World Trade Organization ....

22 U.S.C. §. 1978(a)(4) (Supp. V 1999) (emphasis added).

When Congress omits from a statute a provision found in similar statutes, the omission is typically thought deliberate. See, e.g., I.N.S. v. Phinpathya, 464 U.S. 183, 190, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984). In very similar instances, Congress has explicitly embargoed all imports from the offending nation, regardless of whether any particular shipment was taken in a manner that would threaten endangered species. The fact that Congress declined to include such language in section 609(b) suggests that Congress did not intend to impose a similar embargo there.

D

Turtle Island also argues that allowing an exporting nation to equip only those vessels serving the United States market will undo the ends of section 609, since those turtles escaping from the TED-equipped trawl nets “inevitably will die” in the nets of other vessels trawling the same waters that are not equipped with TEDs. As we state above, section 609 was not enacted with the primary goal of minimizing sea turtle deaths. But as a matter of pure logic, we cannot agree with Turtle Island’s predictions. Assuming sea turtles obey the laws of terrestrial probability, then a fleet partially equipped with TEDs will kill fewer sea turtles than a comparable fleet without any TEDs (so long as there are a finite number of trawling vessels and some sea turtles survive⁹). A fleet fully equipped with TEDs would likely save more turtles, but equipping only a portion of a fleet with TEDs is not entirely futile. Moreover, if Turtle Island’s view is correct, then permitting the import of aquacultured or hand-caught shrimp from uncertified nations may also frustrate the purpose of section 609-because nations may export such shrimp to the United States but still harvest shrimp bound for other markets with trawl nets lacking TEDs.

Turtle Island also argues that permitting uncertified nations to export shrimp to the United States will lower the incentive for uncertified nations to become certified. But even if we thought that Turtle Island’s approach would encourage more nations to enact certification programs, or save more sea turtles, we cannot give weight to such considerations if the will of Congress is dispositive. To quote Turtle Island’s own argument, a court’s “individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress” simply is not relevant; “[o]nce the meaning of an enactment is discerned ... the judicial process comes to an end.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Because we find that the combination of plain language, legislative history, and comparison with other statutory provisions decisively establishes the meaning of section 609(b), we need not consider more attenuated arguments on the wisdom of the government’s implementation of section 609.

Likewise, because the meaning of section 609 is clear, we need not reach the question of how much deference we ought to accord the State Department’s interpretation of section 609, or whether the State Department’s interpretation would minimize potential conflicts with international trade agreements. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The intent of Congress is clear and the government’s current implementation of section 609(b) carries out that intent.

CONCLUSION

However much we may respect Turtle Island’s long struggle on behalf of the Earth’s endangered sea turtles, we cannot find that Congress shared Turtle Island’s current position when it enacted section 609 of Pub.L. 101-162. Having concluded that the State Department’s interpretation of section 609 is the correct one, we must also hold both that Turtle Island is not entitled to an injunction, and that the government’s legal position was substantially justified within the meaning of the Equal Access to Justice Act. We therefore reverse the Court of International Trade’s judgment that the government’s decision to permit the importation of TED-caught shrimp from uncertified nations is not in accordance with section 609(b) of Pub.L. 101-162, and affirm the Court of International Trade’s denial of injunctive relief and attorney fees.

COSTS

No costs.

REVERSED-IN-PART AND AFFIRMED-IN-PART

1 . These species are the loggerhead (Car&tta caretta), Kemp’s ridley (Lepidochelys kempi), green (Chelonia mydas), leatherback (Der-mochelys coriácea) and hawksbill (Erer-mochelys imbricata).

2 . The President has delegated his authority to certify nations under 609(b)(2) to the Secretary of State. Delegation of Authority Regarding Certification of Countries Exporting Shrimp to the United States, 56 Fed.Reg. 357 (Jan. 4, 1991).

3 . Each shipment must be accompanied by a "DSP 12" form, which attests either that the shipment was harvested in the waters of a certified country or that the shipment was harvested by one of the permissible methods.

4 .In practice, TED-equipped vessels and non-TED-equipped vessels do not seem to fish side by side in the waters of uncertified countries. Currently, uncertified countries that export shrimp to the United States enforce TED requirements on vessels plying certain fisheries but not in other fisheries. Turtle Island Restoration Network v. Mallett, 110 F.Supp.2d 1005, 1011-13 (Ct. Int'l Trade 2000).

5 . Turtle Island apparently does not object to permitting import of aquacultured shrimp or hand-caught shrimp from uncertified countries.

6 . Apparently, Earth Island lacked confidence that its challenge to the 1996 Guidelines could be resolved in its favor on the basis of the evidence in record. The decision of the Court of International Trade proved those fears groundless.

7 . Section 609(a) specifies “those species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of Commerce on June 29, 1987”— that is, the domestic TED regulations.

8 . We note in passing that section 609(b)(1) seems clearly patterned after the text of the Marine Mammal Protection Act of 1972, 16 U.S.C. § 1371(a)(2), as that statute stood when section 609 was enacted in 1989. However, neither party submitted an argument in their briefs based on this resemblance.

9 . If the depredations of that portion of the fleet not equipped with TEDs were so great as to drown all the turtles in the area, then both fleets would drown the same number of turtles-that is, all of them. However, not even Turtle Island makes such an allegation.