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DISPUTE SETTLEMENT: DISPUTE DS381
United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products

* Agreements cited:
 * Key facts
 * Short title: 	US — Tuna I, II (Mexico)
 * Complainant: 	Mexico
 * Respondent: 	United States
 * Third Parties: 	Argentina; Australia; Brazil; Canada; China; Ecuador; European Union; Guatemala; Japan; Korea, Republic of; New Zealand; Chinese Taipei; Thailand; Turkey; Venezuela, Bolivian Republic
 * (as cited in request for consultations) 	Technical Barriers to Trade (TBT): Art. 5, 6, 8, 2
 * GATT 1994: Art. I, III, XX(b), XX(g)
 * Request for Consultations received: 	24 October 2008
 * Panel Report circulated: 	15 September 2011

History of Dolphin Tuna I Case
The history of "purse seine" net fishing for yellowfin tuna has been the preferred fishing technology of choice for many parts

of the world over the last three decades. This type of fishing involves the use of two boats, the primary fishing vessel, and

the "seine skiff" motorboat. Once the school of fish is located, the seine skiff goes out and encircles the school and deploys a

net around the perimeter to capture the fish and returns to the main fishing vessel to complete the circle at the end of the net.

Once this happens the net is reeled in with cables and the entire contents are gathered into the fishing vessel for processing.

The problem with this type of fishing is the indirect catch and killing of many dolphins. This is due to the tendency of these

dolphins to swim above schools of yellowfin tuna which occurs in the ETP Eastern Tropical Pacific Ocean. In fact this tends

to be the way that many fishermen will locate schools of tuna, by simply observing the dolphins on the surface. So, the issue becomes

that in the ETP many fishermen are intentionally encircling these dolphins in order to get to the tuna below resulting in mass

casualties and drowning of dolphins. There are methods however which can reduce this bycatch of dolphins and reduce the mortality

rate for these animals. Dolphin casualties in the ETP Ocean have led to the initial ban on tuna imports from Mexico which have

been harvested using this controversial purse sein fishing technique. According to NOAA, since the 1950's there have been approximately 6 million incidental dolphin kills.

The controversy and initial ban of (Dolphin Tuna I case) on United States tuna imports from Mexico was based on the "taking"

prohibition in the "MMPA" Marine Mammal Protection Act of 1972. The MMPA of 1972 requires a general prohibition on "taking" and

importation into the United States of marine mammals including (harassment, hunting, killing, capture, or any attempts thereof)

unless explicitly authorized. The goal of this Act being that reducing incidental kill and injury rates of marine mammals by

commercial fishermen. The provisions in the MMPA are applicable to tuna caught in the ETP off the coast of North, Central and

South America. Specifically these rules apply to the taking of marine mammals incidental to the harvest of yellowfin tuna as well

as the importation of said yellowfin tuna harvested in the ETP. This rule is enforced by the NMFS National Marine Fisheries

Service, while the importation is enforced by the United States Custom Service.

As clearly stated in Section 101(a)(2) of the MMPA "The Secretary of Treasury shall ban the importation of commerical fish or

fish products which have been caught with commerical fishing technology which results in the incidental kill or serious injury of

ocean mammals in excess of United States standards". According to Section 101(a)(2)(B), the importation of yellowtail tuna

harvested using purse seine nets in the ETP is prohibited unless the government of the importing country can show that it has a

program comparable to the average rate of taking in United States for reducing marine mammal bycatch. It is on the burden of the

country requesting a finding and they must show through documentary evidence that taking rates are comparable. Under Section 101

(a)(2)(B) of MMPA there are special prerequisites for determining average incidental taking rates as comparable to those

subjected of the Unites States commercial fleets. The average incidental taking rate (meaning dolphins killed as purse sein nets

are deployed) for any country's tuna fleet may not exceed 1.25 the average taking rate of US vessels in the same period.

Furthermore species of Eastern Spinner Dolphins and coastal spotted dolphins for one year may

not exceed 15% and 2% for these species comparable to US fleets.

1990 US-Mexico Tuna Embargo
On August 28, 1990 pursuant to court orders, the US government imposes embargo on yellowfin tuna imports harvested with purse-

sein netting in the Eastern Tropical Pacific ocean. This remains in place until the Secretary of commerce can show compliance

with MMPA standards. This embargo initially affected Mexico, Venezuela, Vanuatu, Panama and Ecuador. On a revised embargo

effective March 26, 1991 yellowfin tuna and other "light meat" tuna that could potentially contain yellowfin, according to

harmonized system tariff headings are prohibited for import unless the imported can provide written evidence that no yellowfin

tuna were harvested using purse sein fishing techniques. This can be tracked by the NOAA Form 370-1 which is required

"Yellowfin Tuna certificate of origin" and it is required to submit by the country of origin. Since Mexico did not want to

comply with the new standards of modifying their fishing techniques, no products were accepted from origin of Mexico into the

United States.

Dolphin Protection Consumer Information Act
DPCIA, or Dolphin Protection Consumer Information Act was an amendment to the Marine Mammal Protection Act (MMPA) of 1972

which would support the International Dolphin Conservation Program and management of tuna in the Eastern Tropical Pacific

Ocean. Findings by Congress have shown that nations fishing for tuna in the ETP have achieved significant reductions in

dolphin mortality by participating countries. This Act lifts the ban on imports from countries that are participating in the

IDCP, and reductions have shown to be of great significance from hundreds of thousands of dolphin fatalities, to that of only

5,000 annually.

Dolphin Safe Labeling
Under section 5 of the Federal Trade Commission Act (15 U.S.C 45)it is a violation for any producer, importer, exporter, or

seller of any tuna product for sale in the US to include the labeling of "dolphin safe" unless it can be clearly shown that

this product was harvested under methods not harmful to dolphins. For vessels that are using purse sein nets under this

agreement, must meet certain requirements in order to be considered "dolphin safe"

1. Vessels cannot harvest tuna in the ETP without an observer on board from the DPCIA certifying that the practices were sound

in reducing dolphin mortality 2.There can be no harvesting on the open seas engaging in driftnet fishing where dolphins are purposely encircled.

MEXICO Response to Tuna import Ban: WTO/GATT response to the MMPA
Mexico brings the complaint through GATT (General Agreement on Tariffs and Trade) dispute resolution system utilizing the WTO

committee arguing that the US MMPA product ban on tuna imports was inconsistent with the provisions of GATT. Mexico argues

through WTO panel dispute resolution mechanism that the import prohibition was inconsistent with Article XI, Article XIII,

Article III of GATT. Mexico also claimed that the embargo did not meet the exceptions of Article XX. Article III refers to the

National treatment provision and the fact that countries must apply tariffs equally to similar products of all other

contracting parties. This also brings to debate the Product vs. process debate. Also known as PPM's (Process and Production

Methods), referring to desire of some countries to regulate international trade on like for like goods on the basis of their

process technologies or harvesting techniques in this case. Although the intention of the embargo is to bring to light the

externalities of dolphin casualties due to the purse sein harvesting techniques, the issue of PPMs is that the process is

irrelevant if the product is the same. Developing countries have historically been weary of including PPM's in the WTO. The

fear being that this will create an imposition of environmental, technological and other qualitative standards with high

thresholds set by industrialized countries thus creating a technical disadvantage for developing countries. Essentially what

Mexico argues is that MMPA is discriminating against like products based on a their production methods. Article XI addresses

the quantitative restriction provision which involves the dispute over embargoes vs. tariffs. Article XI says that a country

is permitted to impose tariffs as a trade restriction but prohibits any type of non-tariff restriction such as quotas or

limiting importing/ exporting licenses. Further, Mexico argues the Article XX provision of GATT is inconsistent with that of

the MMPA. Specifically Article XX(b) and XX(g) which refer to the allowance of trade restrictions when it is deemed "necessary

to protect human, animal or plant life or health" or "relating to the conservation of exhaustible natural resources". The

issue with Article XX is that even while it may be valid, it cannot be applied outside the jurisdiction of the United States,

hence making the argument in the favor of Mexico. The outcome of this challenge fell in the favor of Mexico however these

findings were not adopted formally due to the upcoming NAFTA negotiations, however the argument was revisited in the Dolphin

Tuna II case in 1992.

http://swfsc.noaa.gov/textblock.aspx?Division=PRD&ParentMenuId=228&id=1408