WT/DS381/AB/RW/USA/Add.1  
WT/DS381/AB/RW2/Add.1  
 
14 December 2018  
(18-7849) Page: 1/36 
    
 
  
 
 
UNITED  STATES – MEAS URES CONCERNING THE IMPORTATION, 
MARKETING AND SALE O F TUNA AND TUNA PROD UCTS  
RECOURSE TO ARTICLE  21.5 OF THE DSU BY T HE UNITED  STATES  
UNITED  STATES – MEAS URES CONCERNING THE IMPOR TATION, 
MARKETING AND SALE O F TUNA AND TUNA PROD UCTS  
SECOND RECOURSE TO A RTICLE  21.5 OF THE D SU BY MEXICO  
AB-2017-9 
Report of the Appellate  Body 
Addendum  
This Addendum contains Annexes A to E to the Report of the Appellate Body  circulat ed as  document  
WT/DS381/AB/RW/USA, WT/DS381/AB/RW2 . 
 
The Notice of Appeal and the executive summaries of written submissions contained in this 
Addendum are attached as they were received from the participants and third participants. The 
content has not bee n revised or edited by the Appellate Body, except that paragraph and footnote 
numbers that did not start at one in the original may have been re -numbered to do so, and the text 
may have been formatted in order to adhere to WTO style. The executive summarie s do not serve 
as substitutes for the submissions of the participants and third participants in the Appellate Body's 
examination of the appeal.  
 
 
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 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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LIST OF ANNEXES  
ANNEX A  
NOTICE OF APPEAL  
Contents  Page  
Annex  A-1 Mexico's  Notice of Appeal  4 
ANNEX B  
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Mexico's  appellant's submission  8 
Annex  B-2 Executive summary of the United States ' appellee's  submission  17 
ANNEX C  
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Australia's  third participant's submission  29 
Annex  C-2 Executive summary of Brazil's  third participant's submission  30 
Annex  C-3 Executive summary of the European Union's  third participant's submission  31 
Annex  C-4 Executive summary of Japan's  third participant's submission  32 
ANNEX D  
PROCEDURAL RULING  
Contents  Page  
Annex  D-1 Procedural Ruling of 20 December 2017  regarding Japan's request for an 
extension to the deadline for filing the third participants' submissions and 
executive summaries   34 
ANNEX E 
COMMUNICATION FROM T HE APPELLATE BODY  
Contents  Page  
Annex  E-1 Communication of 29 January 201 8 from the Appellate Body Chair to the 
Chair of the Dispute Settlement Body  36 
 
 
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  ANNEX  A 
NOTICE  OF APPEAL  
Contents  Page  
Annex  A-1 Mexico's  Notice of Appeal  4 
 
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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ANNEX  A-1 
MEXICO 'S NOTICE OF APPEAL1*
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (DSU) and Rule 20(1) of the Working Procedures for Appellate Review , the 
United Mexican States (Mexico) hereby notifies its decision to appeal to the Appellate Body certain 
issues of law and certain legal interpretations developed by the Panels in United States – Measures 
Concerning the Importation, Marketing and Sale of Tuna and Tuna Products – Recourse to 
Article 21.5 of the DSU by the United States  – United States - Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products – Second recourse to article 21.5 of the DSU by 
Mexico  (Reports of the Panels).  
2. Mexico is restricting its appeal to those errors that it believes constitute serious errors of law 
and legal interpretation that need to be corrected. Where Mexico has not appealed an issue relating 
to the findings or the reasoning of the Panels, this does not signify agreement therewith or constitute 
any admission on the part of Mexico.  
3. Pursuant to Rule 21(1) and 21(2) of the Working Procedures, Mexico is simultaneously filing 
this Notice of Appeal and its Appellant 's Submission with the Appellate Body Secretariat.  
4. The measure at issue in this dispute concerns the amended tuna measure, which comprises 
the following elements  (referred to collectively as the "2016 tuna measure "): (i) Section 1385 
("Dolphin Protection Consumer Information Act ") (DPCIA), as contained in Subchapter II 
("Conservation and Protection of Marine Mammals ") of Chapter 31 ( "Marine Mammal Protection "), 
in Title 16 of the U.S. Code; (ii) U.S. Code of Federal Regula tions, Title 50, Part 216, Subpart H 
("Dolphin Safe Tuna Labeling "), as amended in March 2016; and (iii) the court ruling in Earth  Island 
Institute v. Hogarth , 494 F.3d 757 (9th Cir. 2007).  
5. Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appel late Review , this Notice of 
Appeal includes an indicative list of the paragraphs of the Panel Reports containing the alleged errors, 
without prejudice to Mexico 's ability to refer to other paragraphs of the Panel Report in the context 
of this appeal.  
I. The Panels Erred in their Interpretation of the Applicable Legal Analysis in the 
Second Step of the Assessment of "Treatment No Less Favourable " under Article  2.1 
of the TBT Agreement  
6. Mexico seeks review by the Appellate Body of, and requests the Appellate B ody to reverse, 
the findings and conclusions of the Panels with respect to the interpretation and application of the 
legal analysis in the second step of the assessment of whether the 2016 tuna measure accords 
"treatment no less favourable " to Mexican tuna  products within the meaning of Article 2.1 of the 
Agreement on Technical Barriers to Trade (TBT Agreement).  
7. In determining whether the detrimental impact caused by the 2016 tuna measure stems 
exclusively from a legitimate regulatory distinction, the Panels made errors in interpreting and 
applying the analytical methodology for assessing whether the regulatory di stinctions giving rise to 
the detrimental impact are designed and applied in an even -handed manner. In particular, the Panels 
erred in: interpreting how the objectives pursued by the 2016 tuna measure are taken into account 
in the assessment of whether the  relevant regulatory distinctions are "calibrated" to the overall 
relative risks to dolphins arising from different tuna fishing methods in different areas of the oceans, 
and failing to include an inquiry into the nexus between the relevant regulatory dist inctions and the 
objectives of the measure, including consideration of whether the differences in regulatory 
treatment, and the resulting detrimental impact, are disproportionate  in the light of the objectives 
pursued; and in determining and comparatively analyzing the risk profile of the AIDCP -compliant 
                                                
1 * This notification, dated 1 December 2017, was circulated to Members as document WT/DS381/45.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  dolphin encirclement fishing method in the ETP and risk profiles of the other fishing methods for the 
purposes of the "calibration" test.  
8. The Panels ' errors are based on erroneous findings on issues of law and legal interpretation, 
including the following:  
a. The findings and conclusions of the Panels with respect to the relevance and the 
consideration of the risks to dolphins associated with inaccurate labelling information, 
including in relation to the absenc e of sufficient regulatory oversight, the reliability of 
reporting, the existence of illegal, unreported and unregulated ( IUU) fishing, and the 
existence of transshipment and catch consolidation at sea in different areas of the oceans . 
In particular, the Panels erred in finding that the risks to dolphins associated with 
inaccurate dolphin -safe labelling are not relevant to the determination and comparative 
analysis of the risk profiles of the different fishing methods in different areas of the 
oceans.1 
b. The findings and conclusions of the Panels in determining and comparatively analyzing the 
respective risk profiles (i.e., the overall relative risks or levels of harm to dolphins) of 
different fishing methods in different areas of the oceans. In particular, th e Panels erred 
in drawing conclusions on risk profiles relating to different fishing methods rather than risk 
profiles relating to different fisheries (i.e., different fishing methods in different areas of 
the oceans).2 
c. The findings and conclusions of the Panels relating to the standards and benchmarks used 
for determining and comparing the respective risk profiles. In particular, the Panels erred 
in primarily using a "per 1,000 set " standard to determine and compare risk profiles, 
rejecting the use of "Potential Biological Removal " (PBR) data or absolute levels of adverse 
effects to supplement the analysis, using a qualitative description of the characteristics of 
the AIDCP -compliant dolphin encirclement method for the purposes of determining its risk 
profile, and using the risk profile of the AIDCP -compliant dolphin encirclement fishing 
method in the ETP as the benchmark for the comparative analysis of all risk profiles and 
the assessment of whether the tuna measure is "calibrated " to the different risk pro files.3 
II. The Panels Erred in their Findings when Assessing whether the Relevant Regulatory 
Distinctions in the Labelling Conditions of the 2016 Tuna Measure are Consistent 
with Article 2.1 of the TBT Agreement on the Basis that they are "Calibrated " to the 
Different Risk Profiles  
9. Mexico seeks review by the Appellate Body of, and requests the Appellate Body to reverse, 
the findings and conclusions of the Panels that the 2016 tuna mea sure is consistent with Article  2.1 
of the TBT Agreement on the basis  that the relevant regulatory distinctions in the labelling conditions 
are "calibrated " to the different risk profiles. The Panels ' findings and conclusions are in error and 
based on incorrect findings of law and legal interpretations, including the follow ing: 
a. The findings and conclusion of the Panels with respect to the eligibility criteria in assessing 
the consistency of the 2016 tuna measure with Article 2.1 of the TBT  Agreement. 
In particular, the Panels erred in finding that the eligibility criteria ar e "calibrated " to the 
overall relative risks to dolphins arising from different fishing methods in different ocean 
areas.4 
b. The findings  and conclusion of the Panels with respect to the certification criteria in 
assessing the consistency of the 2016 tuna me asure with Article 2.1 of the TBT  Agreement. 
In particular, the Panels erred in finding that the certification criteria are "calibrated " to 
                                                
1 The Panels'  errors in law are contained, inter alia , in paragraphs  7.102, 7.104 -7.105, 7.107 -7.127.  
2 The Panels'  errors in law are contained, inter alia , in paragraphs  7.169 -7.170, 7.283 -7.285, 7.310, 
7.400 -7.402, 7.450, 7.457, 7.475, 7.481, 7.494, 7.511, 7.517 -7.525, 7.539, 7.541 -7.542, 7.571.  
3 The Panels'  errors in law are contained, inter alia , in paragraphs  7.169 -7.170 , 7.185 -7.186, 
7.188 -7.192, 7.195, 7.204 -7.206, 7.211 -7.214, 7.279 -7.280, 7.281, 7.285, 7.329 , 7.339, 7.345, 7.336, 
7.373 -7.374, 7.384 -7.385, 7.89 -7.90, 7.397 -7.398, 7.419 -7.420, 7.469 -7.471,  7.473-7.475, 7.518 -7.524 . 
4 The Panels'  errors in law are contained, inter alia , in paragraphs 7.539 -7.547.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  the overall relative risks to dolphins arising from different fishing methods in different 
ocean areas.5  
c. The findin gs and conclusion of the Panels with respect to the tracking and verification 
criteria in assessing the consistency of the 2016 tuna meas ure with Article 2.1 of the 
TBT Agreement. In particular, the Panels erred in finding that the certification criteria a re 
"calibrated " to the overall relative risks to dolphins arising from different fishing methods 
in different ocean areas.6 Mexico also requests the Appellate Body to find that the Panels 
failed to make an objective assessment of the facts, as required by Article 11 of the DSU, 
with respect to their findings and conclusion regarding the tracking and verification criteria. 
In particular, the Panels erred in expressly refusing to give any consideration to evidence 
adduced by Mexico that was directly relevant and material to the outcome of the legal 
analysis.7 
d. The findings and conclusions of the Panels with respect to the "overall assessment of the 
consistency of the 2016 tuna measure with Article 2.1 of the TBT Agreement ". 
In particular, the Panels erred in fi nding that the 2016 tuna measure, as a whole, is 
"calibrated " to the risks to dolphins arising from the use of different fishing methods in 
different areas of the ocean.8 
III. The Panels Erred in their Findings when Assessing whether the 2016 Tuna Measure 
is Consistent with the Chapeau of Article XX of the GATT 1994  
10. Mexico also seeks review by the Appellate Body of, and requests the Appellate Body to reverse, 
the findings and conclusions of the Panels that the 2016 tuna measure, although inconsistent with 
Articles I:1 and III:4 of the GATT 1994, is exempt from those obligations on the basis that it is 
justified under Article XX of the GATT 1994.  This conclusion is an error and is based on erroneous 
findings on issues on law and legal interpretation.9 Mexico requests that the Appellate Body modify 
the reasoning of the Panel and find that the 2016 tuna measure is applied in manner that constitutes 
arbitrary and unjustifiable discrimination between countries where the same conditions prevail.  
IV. The Panels Erred in their Finding that they had the Authority to Conduct a Partially 
Open Meeting  
11. Mexico  also seeks review by the Appellate Body of, and requests the Appellate Body to reverse, 
the findings and conclusion of the Panels that they had the authority to c onduct a partially open 
meeting of the parties without the consent of both Parties.  
 
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5 The Panels'  errors in law are contained, inter a lia, in paragraphs 7.571 -7.573, 7.600 -7.611.  
6 The Panels'  errors in law are contained, inter alia , in paragraphs 7.650, 7.652, 7.671 -7.676.  
7 The Panels'  errors in law are contained, inter alia , in paragraphs 6.57 and 7.656.  
8 The Panels'  errors in law ar e contained, inter alia , in paragraphs 7.703 -7.717, 8.2, 8.6.  
9 The Panels'  errors in law are contained , inter alia , in paragraphs  7.739 -7.740, 8.3, 8.7 . WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  ANNEX B  
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Mexico's  appellant's submission  8 
Annex  B-2 Executive summary of the United States ' appellee's  submission  17 
 
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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ANNEX  B-1 
EXECUTIVE SUMMARY OF  MEXICO'S  APPELLANT'S SUBMISS ION 
I. INTRODUCTION  
1. This dispute concerns the long -standing consumer labelling regime of the United States that 
prohibits virtually all Mexican tuna products from being labelled "dolphin -safe", while permitting all 
tuna and tuna products from the United States and virtually a ll other countries to be labelled as 
dolphin -safe without assurances that they are so. In this way, the U.S. measure, including the 
combined operation of its dolphin -safe labelling conditions and requirements, modifies the conditions 
of competition in the U.S. market to the detriment of Mexican tuna and tuna products vis-à-vis like 
products from the United States and other countries in a manner that is not consistent with the 
United States' commitments under the WTO Agreements.  
2. Mexican tuna products contai n tuna caught by the Mexican fleet in the Eastern Tropical Pacific 
Ocean (ETP) using a fishing method is certified as "dolphin -safe" under the Agreement on the 
International Dolphin Conservation Program (AIDCP), a multilateral environmental agreement to 
which the United States is a party. The AIDCP is an award -winning environmental agreement that 
is an unqualified success and has enormously reduced dolphin mortality to statistically insignificant 
levels while promoting sustainable fishing practices. When ad opting the AIDCP, the Parties 
recognized that the scientific evidence demonstrated that such fishing practices are an effective 
method for the protection of dolphins and rational use of tuna resources in the ETP. The AIDCP's 
objectives are to minimize to t he greatest extent possible dolphin mortality in the ETP while, at the 
same time, ensuring the sustainability of tuna stocks and associated species in the ETP pelagic 
ecosystem. Maintaining these dual goals of protecting dolphins as well as other species i n the 
ecosystem is crucially important.  
3. Meanwhile, notwithstanding the extensive evidence that there are substantial adverse effects 
on dolphins in tuna fisheries throughout the world, little, if anything, has been done to protect 
dolphins in those other fisheries. Yet the U.S. tuna measure allows tuna products from those fisheries 
to be freely labelled "dolphin -safe", while prohibiting use of the label for Mexican tuna products.  
4. It is the combined granting and denial of dolphin -safe label under the measu re that upsets 
the balance of competitive opportunities between Mexican tuna products and tuna products from the 
United States and other countries. These actions, in particular the large supply of purportedly 
dolphin -safe products permitted by the measure,  have artificially shaped the U.S. market for tuna 
products into what it is today. This situation would be drastically altered if tuna products from 
U.S. and other sources were truly dolphin -safe. Dolphins would be better protected, the supply of 
dolphin -safe tuna products would be reduced to the correct levels, and an incentive would be created 
for all participants in the U.S. market to reconsider the dolphin -safe issue and the broader issue of 
fisheries sustainability.  
5. Mexico disagrees with the prior find ings that tuna caught by AIDCP -compliant setting on 
dolphins in the ETP can be ineligible for the dolphin -safe label. However, this appeal does not focus 
on the denial of the label for Mexican tuna products. Rather, this appeal focuses on the granting of 
access to the label for tuna products containing tuna that is not dolphin -safe. The measure does this 
in a manner that is inconsistent with the objective of protecting dolphins and inconsistent with the 
Agreement on Technical Barriers to Trade (TBT Agreemen t) and the General Agreement on Tariffs 
and Trade, 1994 (GATT 1994). The Panels erred in finding that the measure is consistent with these 
Agreements.  
II. GROUNDS FOR APPEAL  
6. The focus of this appeal is on the interpretation and application of the legal tests f or 
determining whether the detrimental impact caused by the tuna measure stems exclusively from a 
legitimate regulatory distinction under Article 2.1 of the TBT Agreement and whether the tuna 
measure is applied in a manner that constitutes a means of arbit rary or unjustifiable discrimination 
between countries where the same conditions prevail under the chapeau of Article XX of the WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  GATT  1994. Specifically, the central issue is whether the differences in the labelling conditions for 
tuna products containing t una caught by setting on dolphins in the ETP and for tuna products 
containing tuna caught by other fishing methods in ocean areas outside the ETP are "calibrated" and 
otherwise designed and applied in an even -handed manner such that the tuna measure is in 
compliance with the requirements of Article 2.1 of the TBT Agreement and the chapeau of Article  XX 
of the GATT 1994.  
A. The Panels Erred in Finding that the Tuna Measure is Consistent with 
Article  2.1 of the TBT Agreement  
1. Errors in the Panels' Legal Interpret ation of the Even -Handedness Test  
7. The Panels erred in their legal interpretation of the calibration test and the overall assessment 
of even -handedness in the second part of the "treatment no less fav ourable" analysis under 
Article  2.1 of the TBT Agreement.   
8. First, the Panels erred by not reflecting the objectives of the measure in the substantive 
criteria for assessing whether the measure's regulatory distinctions are designed and applied in an 
even-handed manner, including on the basis of calibration.  
9. Second, in determining the risk profiles for their calibration assessment, the Panels failed to 
recognize that the risks to dolphins are inextricably linked to the characteristics of ocean areas and 
fisheries that impact the accuracy of the dolphin -safe la bel. These characteristics include the absence 
of sufficient regulatory oversight, the reliability of reporting, the existence of illegal, unreported, and 
unregulated ( IUU) fishing, and the existence of transshipment at sea. The Panels erroneously 
interpreted the applicable "calibration" assessment to focus solely on the impact of fishing methods 
in terms of observable and unobservable mortality and serious injury caused to dolphins. This 
interpretation is too narrow, incomplete, and is legally erro neous. This is particularly so for the 
certification requirements and the tracking and verification requirements, which are directly aimed 
at ensuring label accuracy. The very purpose and function of these requirements is to ensure that 
the information pro vided to consumers on the dolphin -safe label accurately reflects that the product 
contains no tuna that was caught in a manner that adversely affects dolphins.  
10. Third, the Panels erred by interpreting "risk of inaccuracy" narrowly to relate to the symptom 
or outcome (i.e., an inaccurate label) rather than the risk factors that cause the symptom or outcome 
(e.g., the absence of sufficient regulatory oversight, the reliability of reporting, the existence of 
IUU fishing, and the existence of transshipment at se a). As a result of this error, the Panels 
concluded that in every  fishery outside the ETP, the label could have a "margin of error", without 
regard to the actual differences among fisheries in the reliability of their certification, tracking and 
verificati on systems. By taking this approach, fishing areas that are known to have insufficient 
regulatory oversight, to have unreliable reporting, significant IUU fishing and transshipment are 
treated the same as fishing areas that do not have these problems. Cons equently, the Panels failed 
to properly assess the relevant differences between fisheries and therefore did not take into account 
the risk factors that exist in the different ocean areas.  
11. Finally, the Panels erred by not interpreting Article 2.1 in its con text, including the sixth recital 
of the preamble to the TBT Agreement and the chapeau of Article XX of the GATT 1994, so as to 
ensure symmetry in the interpretation of arbitrary and unjustif iable discrimination in the 
two provisions and include under both  provisions an assessment of the nexus between the regulatory 
distinctions and the objectives of the measure.  
2. Errors in the Application of Calibration to the Facts  
12. The Panels' errors in the interpretation of Article 2.1 led the Panels to err in their esta blishment 
and assessment of the risk profiles of the different fishing methods and ocean areas. These risk 
profiles are central to the calibration assessment because they set out the factors that will be used 
to assess whether the tuna measure's regulatory  distinctions are appropriately calibrated to the 
overall relative risks arising from the use of different fishing methods in different areas of the oceans.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  a. The Panels Erred by Failing to Include Calibration Criteria on Ocean Areas  
13. Apart from AIDCP -compli ant dolphin encirclement in the ETP, the Panels did not draw any 
conclusions on the risk profiles of fishing methods in different ocean areas . The risk profiles of the 
different fishing methods were assessed on a worldwide basis, without consideration of i ndividual 
fisheries, particularly those in which a fishing method is causing significant adverse effects on 
dolphins. The Panels' analysis consisted of a comparative assessment of the risk profiles of the 
AIDCP -compliant dolphin encirclement fishing method  in the ETP to each of the other six fishing 
methods throughout the world. For each of these other six fishing methods, the Panels effectively 
averaged or sampled the overall relative risks or levels of harm over all of the fisheries that use the 
method. A s a consequence of the Panels' approach, ocean areas in which the evidence demonstrates 
that a fishing method is causing significant adverse effects on dolphins are "masked" or "hidden" 
within the worldwide risk profile for that method. The Panels' conclus ions erroneously reflect a 
comparison of risk profiles of different fishing methods, rather than a comparison of the risk profiles 
of different fishing methods in different ocean areas (i.e., fisheries). It is clear from the design, 
architecture, and revea ling structure of the measure and from the prior rulings of the Appellate Body 
that a calibration analysis in this instance requires the comparison of the risk profiles of the different 
fishing methods in different areas of the oceans. The Panels did not u ndertake this.  
14. Failing to assess both fishing methods and ocean areas contradicts the two objectives of the 
measure: ensuring that consumers are not misled or deceived about whether tuna products contain 
tuna that was caught in a manner that adversely affe cts dolphins, and, contributing to the protection 
of dolphins by ensuring that the U.S. market is not used to encourage fishing fleets to catch tuna in 
a manner that adversely affects dolphins. While the Panels stated that they were conducting an 
"assessme nt of the overall levels of relative risks posed to dolphins by different fishing methods in 
different areas of the ocean", they actually undertook only a partial assessment of certain risks 
averaged across all areas of the oceans.  
b. The Panels Erred by Usin g a Sing le Benchmark Based on the 
AIDCP -Compliant Setting on Dolphins  
15. The Panels used the risks of harm posed by the AIDCP -compliant dolphin encirclement method 
in the ETP as the benchmark for the purposes of conducting their risk profile assessment of all  tuna 
fisheries. The use of such a benchmark is erroneous for three reasons.  
16. Under the Panels' approach, the benchmark against which the risk profiles of all other fishing 
methods and ocean areas are compared is the risk profile of the very fishing method and ocean area 
that is the subject of to the discrimination being challenged.  Using the dolphin set fishery in the ETP 
as the benchmark for determining the even -handedness of the regulatory distinctions giving rise to 
the detrimental impact renders inutile  the second step of the analysis. This is because, by definition, 
the risk profile of the fishery targeted by the measure can n ever better such a benchmark. 
A benchmark cannot be used to objectively assess the circumstances that constitute the benchmark 
itself. 
17. The benchmark must be an independent and objective standard or point of reference against 
which the overall relative risks or levels of harm arising from each of the different fishing methods 
in different areas of the oceans must be assessed, includi ng those that are prohibited and those that 
are permitted under the tuna measure (i.e., both sides of the relevant regulatory distinctions). The 
benchmark should correspond to the specific issue or circumstance that the relevant regulatory 
distinctions are  meant to address in the light of the objectives of the measure. In this case, the 
relevant regulatory distinctions are meant to address the adverse effects — that is, the mortalities 
and serious injuries — that caused to dolphins by different fishing meth ods in different areas of the 
oceans.  
18. Due to the differences in adverse effects that a given fishing method can cause in different 
ocean areas, it is impossible to apply a single benchmark across all fisheries for this calibration 
assessment. Each fishing method and fishing area must be assessed for its different relative risks 
that dolphins will be adversely affected in the course of tuna fishing operations.  
19. The Panels focused on distinguishing Mexico's fishing method in the ETP from all other fishing 
methods and, in doing so, the Panels did not assess whether tuna caught by other fishing methods WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  in other ocean areas should also be excluded from access to the label. The Panels' approach 
erroneously examined only one side of the relevant regulatory distincti on. 
20. At most, the Panels' approach encompasses how the relevant regulatory distinctions address 
the relative risks or levels of harm associated with AIDCP -compliant dolphin sets in the ETP. The 
Panels erred because their approach did not assess whether the risks or levels of harm associated 
with other fishing methods in other fisheries are addressed, commensurately with their respective 
risk profiles, in the labelling conditions that apply in respect of tuna caught in such other fisheries.  
21. The risk profile c riteria used by the Panels focused on qualitative attributes that are unique to 
the AIDCP -compliant dolphin encirclement method in the ETP, further ingraining this single 
benchmark into the Panels' calibration analysis.  
22. The Panels' analytical approach cau sed them to disregard the Appellate Body's direction to 
take into account the overall effects of each fishing method. Rather than determining the overall 
relative risks or levels of harm attributable to different fisheries, "including both observed and 
unobserved harms", the Panels analysis created distinctions between (i) different "kinds" of 
unobservable harms and (ii) the "nature and extent of the interactions with dolphins" of different 
fishing methods in different areas of the oceans. The practical eff ect of these distinctions in the 
Panels' analyses was to exclude certain kinds of harms and certain harmful fishing methods from a 
direct comparison with the relative overall risks or levels of  harm associated with the 
AIDCP -compliant dolphin encirclement fishing method in the ETP.  
23. The Panels' approach means that mortalities and serious injury can be inflicted on dolphins as 
long as they do not constitute the same "kinds" of harm that ha ve been attributed to the 
AIDCP -compliant dolphin encirclement method in the ETP.  
c. The Panels Erred by Relying on Measurements of Risk to Dolphins that were 
Incomplete  
24. The Panels identified as relevant to the "risk profile": (i) the number of observed mortalities 
and serious injuries per 1,000 sets; (ii) the existence of unob servable mortalities and serious injuries 
of the "kinds" it found exist for AIDCP -compliant setting on dolphins in the ETP; (iii) the necessity 
for a particular method to interact with dolphins; and (iv) the level of interactions with dolphins, 
although th e latter two factors were treated as a proxy for estimating unobservable mortalities and 
serious injuries, rather than as distinct factors.  The Panels rejected to use of other measurement 
methodologies based on the Potential Biological Removal (PBR) method ology and the absolute levels 
of dolphin mortalities and serious injuries.  
25. The Panels erred in failing to address the deficiencies in their measurement approach, 
including the improper narrowing of the "risk profiles" of the different fishing methods and f ishing 
areas to be assessed and compared in a manner that omitted important risk factors. The Panels' 
approach omits from the risk assessment of fishing methods and ocean areas:  
• The impact of tuna fishing methods on the sustainability of dolphin stocks, allowing the 
dolphin -safe label to be used on tuna caught in a manner that jeopardizes the 
sustainability of dolphin stocks in at least three ocean areas.  
• The absolute dolphin mor talities and serious injuries in ocean areas, allowing the dolphin 
safe label to be used on tuna caught in ocean areas where thousands of dolphins are 
killed on an annual basis by tuna fishing.  
• The risks created in certain ocean areas by insufficient regul atory oversight, unreliable 
reporting, significant IUU fishing and/or significant transshipment at sea.  
26. In reviewing potential alternative methods for evaluating the risk profiles of different fishing 
methods, the Panels rejected the use of PBR levels. The  PBR level is the maximum number of 
animals, not including natural mortalities, that may be removed from an animal stock (such as 
dolphins) while allowing that stock to reach or maintain its optimum sustainable population. It 
provides a measurement of the magnitude of adverse effects on dolphins that is essential for a 
comparison between ocean areas. A small number of dolphin mortalities will have a much greater WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  comparative magnitude of adverse effects in ocean areas where dolphin stocks are endangered or 
low. By rejecting this measurement, the Panels erroneously rejected endangered and low dolphin 
stocks as a relevant risk factor for eligibility for the label. This contradicts the objective of the tuna 
measure to discourage fishing practices that are harmfu l to dolphins. Endangering dolphin stocks in 
an ocean area is clearly harmful by any measure.  
27. The Panels asserted that using the PBR methodology would not be useful, claiming that the 
tuna measure is concerned with the risks facing dolphins "at an individu al level, rather than at a 
population level". The Panels did not adequately explain, within the context of the design, structure 
and architecture of the tuna measure, how use of a fishing method in that is causing or threatening 
dolphin population collapse  in a region could be considered not to be adversely affecting dolphins. 
As Mexico argued, where mortalities could result in the extinction of a dolphin stock, such potential 
extinctions are encompassed by the concept of "adversely affecting" dolphins. The  Panels made no 
attempt to justify their overlooking of mortalities that endanger the population of dolphins in 
particular fisheries, such as the following:  
• Main Hawaii Island Insular Stock Longline fishery;  
• West North Atlantic Longline fishery;  
• Pelagic Ha waii Longline fishery.  
28. The Panels also rejected Mexico's alternative argument that, if the PBR method was not used, 
the absolute levels of adverse effects should be used.  
29. By dismissing the absolute level approach and adopting a per 1000 set metric (at lea st for 
some fisheries), the Panels missed the "big picture" regarding adverse effects on dolphins in a 
fishery. Where there is a high frequency of sets, the overall adverse effects will be masked. Thus, 
tuna caught in an ocean area where tuna fishing is ca using tens of thousands of deaths per year 
could be found eligible for the dolphin -safe label. The fact that certain sets do not cause dolphin 
deaths and serious injuries and the tuna from such sets would be eligible for the label, does not 
eliminate the f act that tens of thousands of dolphins are being killed in the fishery. These adverse 
effects are the "overall adverse effects on dolphins" for the fishing method/area. Such fishing 
practices in such ocean areas should be discouraged.  
30. Like the omission of the PBR, the omission of these overall adve rse effects contradicts the 
two objectives of the measure.  
31. Calibration involves the assessment of the relative risks of overall harms to dolphins posed by 
different fishing methods in different ocean regions. For a given fishing method that causes harms 
to dolphins, dolphins will be at a greater relative risk of harms from that fishing method in ocean 
areas that have insufficient regulatory oversight including unreliable reporting, significant IUU fishing 
and/or si gnificant transshipment at sea than in ocean areas that do not. Moreover, these risk factors 
are directly relevant to the calibration of the certification and tracking and verification labelling 
conditions. Stricter controls are needed in ocean areas that have these attributes compared to ocean 
areas that do not.  
32. The Panels rejected Mexico's argument that the reliability of the applicable systems in different 
fisheries for certification, tracking and verification are integral elements of the risk profile of  different 
fisheries that must be assessed and compared.  
33. The omission of the reliability of reporting as a criterion in the risk profiles of the fishing areas 
contradicts the objectives of the measure. There is a greater risk that adverse effects on dolphi ns 
will be unreported in unreliable fisheries than in reliable fisheries and, therefore, that actions that 
adversely affect dolphins in unreliable fisheries will not be discouraged by the measure. Given the 
importance of certification, tracking and verific ation to these objectives and to the measure as a 
whole, the reliability criterion should have been included in the risk profiles.  
34. By rejecting these risk factors in their risk assessment, the Panels erred because their risk 
analysis was incomplete, and th e gaps created in the risk profiles contradicted the objectives of the 
measure.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  d. The Panels Incorrectly Assessed the Calibration of each of the Three Labelling 
Conditions of the Tuna Measure  
35. For all three regulatory distinctions, the calibration assessment requires consideration of both 
fishing methods and ocean areas. The Panels' errors lie principally in their failure to account for 
differences between ocean areas related to adverse effects on dolphins, regulatory oversight, 
reliability of reporting, IUU f ishing and transshipment. These errors enable the dolphin -safe label to 
be used on tuna products that are not dolphin -safe, including products containing tuna that was 
caught using fishing methods in ocean areas where there are systematic and substantial d olphin 
mortalities and serious injury, in at least three instances where the sustainability of dolphin stocks 
is jeopardized, and where there is a lack of regulatory oversight, unreliable reporting, IUU fishing 
and transshipment. These deficiencies in the Panels' assessment enable the label to be used on tuna 
products when it should not be.  
(1) Eligibility Criteria  
36. The eligibility criteria determine which fishing methods in certain ocean areas are permitted 
and which fishing methods in certain ocean areas are prohibited from harvesting tuna to make tuna 
products that are eligible for the U.S. "dolphin -safe" label. These criteria disqualify tuna harvested 
using the AIDCP -compliant dolphin -encirclement method in the ETP large purse seine fi shery, 
non-AIDCP -compli ant purse seine sets or other gear deployments that intentionally encircle dolphins 
in all ocean areas, and large -scale driftnet fishing in the high seas ocean areas. All other fishing 
methods in all other ocean areas (including e.g., driftnet fishing with in exclusive economic zones) 
are permitted to harvest tuna to make products that are eligible for the "dolphin -safe" label in the 
U.S. market, despite the extensive factual evidence on the record that certain fishing methods in 
certain ocean areas have sub stantial adverse effects on dolphins that are equal to or greater than 
those of the disqualified methods. By permitting, rather than disqualifying, the use of such fishing 
methods in such ocean areas to make tuna products that are eligible for the "dolphin -safe" label, 
the regulatory distinction imposed by the eligibility criteria cannot be said to be calibrated – that is, 
appropriately tailored to, or commensurate with, the relative overall risks to dolphins posed by 
different fishing methods in different ocean areas.  
37. In particular, the Panels completely omitted from their assessment of the eligibility criteria 
any consideration of the following findings they made and evidence they cited regarding regular and 
significant mortalities and serious injuries of  dolphins from the following fishing methods in the 
following ocean areas:  
• Gillnet fishing in several ocean areas has killed cetaceans arising to the tens of thousands 
annually, potentially posing a risk to the sustainability of many cetacean stocks;  
• Gillnet fishing causes considerable observable harms to dolphins in different areas of the 
ocean;  
• Some tuna gillnet fisheries, particularly driftnets used in coastal areas, are "highly 
destructive" and represent one of "the greatest threats to populations of small cetaceans 
in certain areas of the world";  
• The significant numbers of dolphin mortalities in the Indian Ocean Mixed -Target Gillnet 
Fisheries which led NOAA to determine that the mortalities in such fisheries would 
surpass, many times over, the ETP "r egular and significant dolphin mortality or serious 
injury of dolphins" standard;  
• Gillnet fisheries, and driftnet fisheries in particular, have caused, in some circumstances 
and in certain regions, levels of observable harms greater than those caused by s etting 
on dolphins in the ETP;  
• It is estimated that over 18,000 dolphins are killed annually by longline fishing in the 
Pacific Ocean;  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  • At least in some fisheries (e.g., Main Hawaii Island Insular Stock Longline fishery, West 
North Atlantic Longline, Pelag ic Hawaii Longline fishery), longlining is having adverse 
effects on dolphins close to or in excess of the sustainability limits of dolphin populations;  
• In relation to trawl fishing, the Panels identified a North Atlantic fishery for which they 
calculated  a per 1,000 set figure of 450 – about five times higher than its figure for the 
dolphin set fishery in the ETP.  
• Gillnet and trawl fishing have caused massive absolute dolphin mortalities in, for example, 
the Sri Lankan and Indian gillnet fishery, the Chin ese Taipei offshore and distant -water 
gillnet fisheries, and the West African gillnet fishery, as well as the Moroccan driftnet 
fishery and the Eastern North Atlantic pair trawl fishery.  
38. The Panels did not mention these important facts in their assessment of the eligibility criteria. 
In their discussion of the risk profiles of fishing methods, the Panels disregarded this evidence on 
the bases, for example, that "while gillnet fishing may be harmful to dolphins, it does not necessarily  
cause such harms in ev ery area of the ocean"; trawl fishing "mortalities are very low in some fisheries 
and moderate in others"; and population sustainability is not relevant to assessing adverse effects 
on dolphins.  
39. A majority of the Panels' reasoning regarding the eligibility  criteria is grounded in the 
"unobserved" adverse effects caused by setting on dolphins, the finding that this fishing method 
"routinely and systematically interacts with dolphins" and the finding that other fishing methods "do 
not cause the same kinds  of unobservable harms". By limiting their assessment to these distinctions, 
the Panels excluded adverse effects caused by other fishing methods in other ocean areas, such as 
such as choking on pieces of gillnets, "ghost fishing" by lost and abandoned gear, an d maiming 
caused by longline hooks. This approach allows for regulatory distinctions that permit mortalities 
and serious injury of dolphins provided that they do not constitute the same "kinds" of adverse 
effects that have been attributed to the AIDCP -comp liant dolphin encirclement method in the ETP. 
The Panels' erred by omitting from their calibration assessment other adverse effects caused by 
other fishing methods in other ocean areas.  
40. By any measure, no matter how small on a per set basis, dolphin mortal ities and serious injury 
that threaten dolphin stock sustainability in an ocean area amount to "adverse effects on dolphins" 
that should be discouraged by the label. The Panels erred by explicitly dismissing these effects as 
irrelevant, allowing the label to be used for tuna caught in a manner that threatens dolphin stocks, 
and omitting this important measurement of adverse effects from their calibration assessment of 
the eligibility criteria.  
41. Finally, the Panels erred by omitting from their assessment fac tors related to the reliability of 
the ocean area. Dolphins are at a greater overall risk in ocean areas with insufficient regulatory 
oversight, unreliable reporting, IUU fishing and transshipment at sea than in ocean areas that do 
not have these attribute s. Tuna caught in such ocean areas by any fishing method that causes 
adverse effects to dolphins should be ineligible for the label and therefore discouraged.  
(2) Certification Requirements  
42. The "certification requirements" determine who must certify the initia l designation of the 
dolphin -safe status of a catch of tuna at the time of capture. The requirements mandate certification 
by an independent and qualified observer for tuna caught by large purse seine vessels in the ETP 
and for all fishing methods in seven  U.S. domestic fishery areas for which the Department of 
Commerce has determined that the U.S. observers are qualified to certify that no dolphins were 
killed or seriously injured in the sets or other gear deployments in which the tuna were caught. With 
respect to these seven fisheries, certification is required by an independent observer only when the 
observer is on board the vessel for other, unrelated reasons. The United States has also invoked the 
"determination provisions" in the tuna measure to impose  independent observer certification 
requirements on certain gillnet fisheries in the Indian Ocean on the basis that dolphin mortalities are 
greater in those fisheries than in the ETP, while simultaneously and contradictorily claiming that 
purse seine fishi ng with dolphin sets in the ETP is the only fishing method harmful to dolphins. For 
all other fishing methods and all other ocean areas captains are allowed to self -certify the dolphin -
safe status of tuna at the time of capture, even though the captain mig ht not be qualified to make WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  the designation, might not be directly involved in the capturing of the tuna, and might be operating 
in an ocean area that is not subject to sufficient regulatory oversight. By not requiring independent 
certification in such cir cumstances, the regulatory distinctions made by the certification requirements 
are not calibrated. The Panels erred by finding that such distinctions are calibrated and, therefore, 
erred in finding that the tuna measure is even -handed and consist ent with A rticle 2.1 of the 
TBT Agreement.  
43. The Panels erred by relying on their defective assessment of risk profiles of fishing methods, 
by relying exclusively on fishing methods while failing to conduct an analysis of ocean areas, and by 
inappropriately finding th at the measure could allow higher margins of error outside the ETP, The 
Panels also incorrectly found that the "determination provisions" resolved problems with the 
calibration of the certification requirements, without addressing that, as applied by the U nited States, 
a fishery can be designated under the determination provisions only if it has a much higher impact 
on dolphins that the ETP fishery.  
e. Tracking and Verification Requirements  
44. The "tracking and verification requirements" ensure that tuna caught by eligible fishing 
methods in eligible ocean areas that are properly certified as dolphin -safe at the time of capture are 
accurately tracked from the time of capture to the time of application of the dolphin -safe label on 
the tuna products that contain th e tuna. The tracking and verification requirements for tuna caught 
by large purse seine vessels inside the ETP are supervised by independent observers and 
governmental authorities, resulting in comprehensive and reliable documentation. For other fisheries 
(other than the Indian Ocean gillnet fisheries referenced above), U.S. producers and importers are 
simply directed to maintain the records they keep in the normal course of business, and the United 
States submitted no evidence that it had required or obtai ned fully verifiable tracking and verification 
documentation from any market participant. By not requiring comprehensive, reliable and accurate 
tracking and verification requirements for unreliable fisheries – including fisheries that are known to 
tolerate  or are unable to prevent IUU fishing – the regulatory distinctions made by the tracking and 
verification requirements are not calibrated. The Panels erred by finding that such distinctions are 
calibrated and, therefore, erred in finding that the tuna meas ure is even -handed and consistent with 
Article 2.1 of the TBT Agreement.  
45. In evaluating the tracking and verification requirements, the Panels again relied on their 
defective analysis of risk profiles, including by not taking into account differences among different 
fisheries outside the ETP, failing to take into account relevant factors such as the reliability of 
reporting and IUU fishing in particular areas, and applying a faulty analysis to conclude that the 
differences between the ETP large purse seine f ishery and other fisheries have been narrowed. The 
Panels also acted inconsistently with Article 11 of the DSU by expressly refusing to consider direct 
evidence that the major tuna products producers are unable to track the sources of their tuna from 
the W estern and Central Pacific and Indian Oceans. As a result of this error, the Panels' findings not 
only lack a proper basis in the evidence on the record but are contradicted by that evidence.  
B. The Panels Erred in Determining that the Tuna Measure Meets the 
Requirements of the Chapeau of Article XX of the GATT 1994  
46. The Panels erred in their reasoning and findings that the tuna measure is not applied in a 
manner that constitutes a means of arbitrary or unjustifiable discrimination, and is therefore justified 
under Article XX of the GATT 1994.  
47. The Panels erred by declining to conduct, either under Article 2.1 or the chapeau of Article  XX, 
a full assessment of whether the tuna measure is designed or applied in a manner that constitutes 
arbitrary or unjustifiable  discrimination by considering, inter alia , whether the detrimental impact 
caused by the tuna measure's regulatory distinctions can be reconciled with, or rationally connected 
to, the objectives pursued by the measure  that were provisionally found to justi fy the measure under 
a paragraph (g) of Article XX . Importantly, the Panels made no sub stantive findings under Article  2.1 
with respect to arbitrary or unjustifiable discrimination. Their assessment of the requirements of the 
chapeau was erroneously incomp lete. WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  C. The Panels Erred in Finding that They Have the Power to Authorize the 
Conduct of a Partially Open Meeting  
48. Based on a unilateral request from the United States that was opposed by Mexico, the Panels 
partially opened its meeting with the parties to the  public, allowing selective video recording and a 
public showing of the video several weeks after the hearing. This procedure imposed unnecessary 
burdens on Mexico and interfered with the smooth conduct of the hearing. Mexico seeks a ruling 
from the Appell ate Body, consistent with its prior rulings on this subject, that hearings may be 
opened only when there is agreement among all the disputing parties.   
III. CONCLUSIONS  
49. On the basis of the foregoing, Mexico respectfully requests that the Appellate Body fin d that 
the Panels erred in their interpretation and application of Article 2.1 o f the TBT Agreement and 
Article  XX of the GATT 1994 to the facts at issue, modify the Panels reasoning and reverse the 
Panels' findings that the 2016 tuna measure is consistent  with Article 2.1 and meets the 
requirements of the chapeau to Article XX.  
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  THE UNITED STATES ' APPELL EE'S SUBMISSION  
1. This is the third time this long -standing dispute over whether the U.S. dolphin safe labeling 
requirements discriminate against Mexican tuna and tuna product has come before the 
Appellate  Body. We believe it should be the last.  
I. THE PANELS DID NO T ERR IN FINDING THA T THE CHALLENGED MEA SURE IS 
CONSISTENT WITH ARTI CLE 2.1 OF THE TBT AGREEMENT  
A. Mexico's Claim that the Panels Erred in Their Interpretation of Article 2.1 Should be 
Rejected   
1. The Panels Correctly Found that the Risk Profiles Must Reflect the Risk of Mortality 
and Injury to Dolphins  
2. Mexico claims that the Panels erred in interpreting the calibration analysis by finding that the 
risk profiles of the different fishing methods should only reflect harms to dolphins – i.e., mortality 
and injury (both observed and unobserved) – and not the reliability of different systems for  
certification and tracking and verification. Mexico's appeal should be rejected.  
3. First, Mexico is wrong to claim that the Panels erred in strictly following the Appellate Body's 
guidance in the previous compliance proceeding. The Appellate Body set out c learly what it 
considered to be the appropriate calibration analysis. In doing so, the Appellate Body repeatedly 
referred to the risk profiles of the different fishing methods and that those risk profiles should reflect 
the relative risks of observed and u nobserved mortalities and injury. Second, Mexico's is premised 
on the insistence that the Panels should have subjected the eligibility criteria to one legal test and 
the certification and tracking and verification requirements to another. But in the previo us 
proceeding, the Appellate Body faulted the panel for applying different tests to the certification and 
tracking and verification requirements, on the one hand, and eligibility criteria, on the other, 
emphasizing that the same test  must be applied to the se "cumulative and highly interrelated" 
regulatory distinctions. The question, ultimately, is whether the measure  is even -handed. Finally, 
Mexico's appeal should be rejected because it has been put forward without any factual basis. Mexico 
never provided t o the Panels any evidence that "the reliability of applicable systems" is "inextricably 
linked" with actual, physical harm to dolphins, such that "dolphins will be at a greater relative risk 
of harms" where the "the reliability of applicable systems" is lo w. Mexico may not make new factual 
arguments on appeal.  
2. The Panels Correctly Assessed the 2016 Measure Based on Whether Its Distinctions 
Are Calibrated to the Relative Risks to Dolphins  
4. Mexico argues that the Panels erred in failing to assess the consi stency of the 2016 measure 
based on the "rational connection test." Mexico seems to raise eight separate arguments in this 
regard, all addressing the Panels' statement that the Appellate Body's use of the phrase "taking 
account of the objectives of the mea sure" means that the Panels were required to take into account 
that: "(a) the form and content of the calibration test must be appropriately informed by the 
objectives pursued by the measure, and (b) the calibration test should itself be applied taking 
account of the measure's objectives." Mexico's appeal should be rejected in its entirety.  
5. Mexico's first, third, and fourth arguments are redundant of arguments above and fail for the 
reasons already explained. Mexico's second argument – that the Panels' ana lysis tolerates less 
accurate labels for tuna caught outside the ETP large purse seine fishery than tuna caught 
inside  it – is wrong. The Panels correctly reasoned that: (1) they could not assume that the 
certifications from any fishery were perfectly corr ect; (2) the risk of inaccurate labeling is not a 
constant "will depend not only on the ... margin of error [of the certification], but also, and 
importantly, on the extent of events that require recording whether a dolphin mortality or serious 
injury was observed in a given fishery"; and (3) in order to determine whether the measure's WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  regulatory differences are consistent with its objectives, they needed to examine those differences 
"in the light of the relevant risk profiles in different fisheries" and de termine whether they are 
"calibrated to, tailored to, and commensurate with the different risk profiles in different fisheries." 
Mexico's fifth argument – that the Panels erred in relying on the concept of "margin of error" – fails. 
The Panels were correct  that "it is unlikely that any system could be completely error -proof" and 
that the measure need not "be completely error -proof in order to be calibrated" (and thus consistent 
with Article  2.1). The concept of a margin of error is consistent with the Appel late Body's instruction 
that a compliance analysis must assess all relevant aspects of the measure under the calibration 
analysis in order to determine whether the measure, as a whole, is calibrated to the risks of harms 
to dolphins occurring in different fisheries. Mexico's sixth argument – that the Panels "did not account 
for the variability in the risks to dolphins in particular fisheries outside the ETP" – is addressed below. 
Mexico's seventh argument – that the Panels misunderstood Mexico's argument re garding the 
relationship between the measure's two objectives – fails for not identifying a legal error. Mexico's 
eighth argument – that the Panels erred in not interpreting Article 2.1 to ensure "symmetry"  with 
Article XX of the GATT  1994 – fails; the Pan els' approach reflects that consideration, given that it 
adheres closely to the guidance of the Appellate Body in the previous proceeding.  
3. The Panels Correctly Assessed 2016 Measure Without Regard to the Objective of 
Sustainable Development  
6. Mexico's ap peal that the Panels erred in finding the 2016 measure consistent with Article 2.1 
because the measure "undermines the objective of sustainable development" should be rejected. As 
the Panels explained, Mexico's argument seeks to transform preambular langua ge regarding 
sustainable development into a substantive obligation that Members are required to further a 
sustainability objective pursuant to the TBT Agreement obligation regarding discrimination. There is 
simply no support for such an argument, and Mexic o provides none.  
B. Mexico's Claim that the Panels Erred in Their Application of Article 2.1 Should be 
Rejected  
1. The Panels Correctly Assessed the Different Risk Profiles of Different Fishing 
Methods in Different Ocean Areas  
7. Mexico's claims that the P anels erred by: (a) failing to include assessments of fisheries in their 
assessment of the risk profiles of different fishing methods; (b) using the harm to dolphins caused 
by setting on dolphins in the ETP large purse seine fishery as the "single benchmar k" for the 
calibration analysis; and (c) relying on measurements of risk to dolphins that Mexico alleges are 
deficient while omitting important risk factors should be rejected.  
a. Mexico's Claim that the Panels' Analysis of the Risk Profiles of Different Fishing 
Methods Did Not Encompass Assessments of Relevant Fisheries Should Be Rejected  
8. First, Mexico's argument that risk profiles must be assessed exclusively on a "fishery -by-
fishery basis," should be rejected because an exclusively fishery -by-fishery ap proach conflicts with 
the design, architecture, and revealing structure of the dolphin safe labeling measure. As is well 
established, the eligibility criteria draw distinctions on a fishing method -by-fishing method basis, not 
on a fishery -by-fishery basis.  Nowhere in the two sets of DSB recommendations and rulings is there 
any indication that addressing this issue on a fishing method -by-fishing method basis is inconsistent 
with Article 2.1. Further, this argument directly conflicts with the design of the de termination 
provisions.  
9. Second, Mexico's appeal should be rejected because the approach Mexico insists is required 
conflicts with the Appellate Body's analysis. There is no support in the Appellate Body's analysis in 
the previous two proceedings for what Mexico argues. Proof of this can be found in the Appellate 
Body's analysis of why it could not complete the analysis. In particular, the Appellate Body concluded 
that it could not complete the analysis not because the first compliance panel had failed to m ake 
ultimate findings on a fishery -by-fishery basis, but because the panel had not made an assessment 
of the overall risk  of harms to dolphins.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  10. Finally, Mexico is incorrect that the Panels' assessment did not reflect the risk profiles of fishing 
methods " in different areas of the ocean" but, rather reflected an "average" risk profile of the tuna 
fishing methods other than setting on dolphins in all ocean areas. In fact, the Panels considered and 
assessed the level of observable and unobservable harms to do lphins in each fishery for which there 
was probative evidence on the record.  
b. Mexico's Claim that the Panels Erred in Using a "Single Benchmark" in the 
Calibration Analysis Should be Rejected  
11. Mexico's claims that the Panels erred by analyzing  whether the regulatory distinctions are 
calibrated by comparing the risks of harms to dolphins from setting on dolphins inside the ETP large 
purse seine fishery to the risks of harms to dolphins from other fishing methods used in different 
areas of the oc ean fail.  
12. First, Mexico is wrong to argue that the Panels' approach "nullifies the calibration analysis." 
In fact, the Appellate Body explicitly – and repeatedly – called for the Panels to undertake this very 
analysis . In particular, the Appellate Body st ated that the comparison is between the "labelling 
conditions for tuna products containing tuna caught by large purse -seine vessels in the ETP, on the 
one hand, and for tuna products containing tuna caught in other fisheries, on the other hand." 
Further, n one of Mexico's explanations of why the Panels' analysis "nullifies the calibration analysis" 
has any basis. In particular, the question critical is whether the respective regulatory requirements 
that apply to all relevant groups  of products – i.e., tuna p roducts produced from setting on dolphins 
in the ETP large purse seine fishery and tuna products produced from other fishing methods in 
different parts of the ocean – address the respective risks to dolphins. It is not correct that the 
analysis the Panels undertook mandates a particular outcome for tuna product produced from setting 
on dolphins in the ETP.  
13. Second, Mexico is wrong to claim that the Panels "erroneously narrowed the risk profile 
criteria" in their assessment of the risk profile in its discuss ion of the "kinds of harm" caused by 
setting on dolphins. Mexico's assertion that the way the Panels grouped types of harm caused by 
fishing methods caused them to "disregard[]" the alleged effects of "ghost fishing" by gillnets and 
longline gear is incorr ect. In fact, the Panels found that Mexico's evidence on the risks of "ghost 
fishing" "[were] relevant to [their] assessment of the risk profile of gillnet fishing" but did not agree 
with Mexico as to what that evidence showed.  
c. Mexico's Claim that the Panels Relied on Deficient or Incomplete Risk Factors Should 
be Rejected  
14. Mexico appeals the paragraphs where the Panels: (1) accepted that it was appropriate to 
adopt a per set methodology to compare harms across different fisheries; (2) rejected Mexico's 
proposed PBR metric; (3) rejected Mexico's proposed "absolute levels of adverse effects" metric; 
and (4) rejected Mexico's argument that the "reliability" of other applicable certification and tracking 
systems are elements of the "risk profile of different  fisheries."  
 i. Mexico's Claim on Per Set Methodology Should be Rejected and is Not Properly 
Raised as a Legal Appeal  
15. First, Mexico's argument that the Panels erred in "relying on the per set methodology" to 
evaluate risk profiles while "ignoring the wea knesses" of that approach is wrong. With respect to the 
Panels' assessment of Exhibit US -179 Rev., Mexico identifies not a single criticism that the Panels 
"ignored." Indeed, Mexico concedes that "[t]he Panels rejected all of Mexico's arguments and found 
that every aspect of the U.S. chart was reliable." Mexico also fails to show that the Panels "ignored" 
Mexico's argument on cross -fishery comparison of per set data or that the argument established a 
"weakness" in the per set approach. As Mexico acknowledge s, the Panels fully addressed (and 
rejected) Mexico's argument. Second, Mexico is incorrect that the Panels "largely disregarded" a per 
set measurement in assessing the risk profile of gillnet and trawl fishing in different ocean areas. 
The Panels thorough ly examined trawl and gillnet fishing and relied on the evidence – both per set 
and general – that they found probative. Third, this challenge pertains to the Panels' appreciation of 
the facts and Mexico errs in circumventing the standard of DSU Article 11  of the DSU by claiming, 
without basis, that errors are legal.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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   ii. The Panels Were Correct Not to Rely on PBR to Evaluate Risk Profiles  
16. Mexico appeals paragraph 7.473 of the Reports, arguing that the Panels erred in "rejecting 
the use of PBR in evaluatin g risk profiles" of different fishing methods and fisheries.  
17. Mexico's first argument  – that the Panels' conclusion regarding the applicability of PBR is 
inconsistent with previous reports – lacks merit. Relying on a PBR metric is not compatible with 
addre ssing the "overall levels of relative risks" to dolphins  in different fisheries because it focuses 
on the effect that dolphin mortalities have on a dolphin stock, not on the "likelihood that dolphins 
would be adversely affected in the course of tuna fishin g operations." A PBR approach also is not 
compatible with the objective of the 2016 measure and "sits uncomfortably with [its] design and 
structure." The Panels' approach is consistent with that of the Appellate Body in the first  compliance 
proceeding, whi ch explained the critical inquiry as whether the distinctions of the measure are 
"calibrated to the likelihood  that dolphins would be adversely affected  in the course of tuna fishing 
operations." Mexico's claim that the Panels' reasoning is inconsistent wi th the original panel's 
analysis is incorrect. None of the paragraphs of the Appellate Body report Mexico cites support this 
argument, nor do the paragraphs of the original panel report.  
18. Mexico's second argument  – that not relying on a PBR methodology was  "arbitrary" in light of 
the objectives and structure of the 2016 measure and that the Panels' f ailed to explain their 
approach  – is also without merit. First, contrary to Mexico's argument, the Panels explained why the 
effect of mortalities on a dolphin s tock is distinct from "adverse effects on dolphins." Second,  Mexico 
is wrong that the Panels failed to explain they decided not to rely on a PBR metric to assess the 
Hawaii and Atlantic longline fisheries. The Panels' explanation that, where PBR for a part icular stock 
is very low the relationship between observable mortalities and PBR is "not necessarily indicative" 
of the level of dolphin mortality, related specifically to these fisheries (both of which have very low 
levels of observable dolphin mortality) . Third, Mexico is wrong that the Panels did not explain the 
relationship between declining to adopt a PBR approach and the objectives and structure of the 
measure.  
19. Mexico's third argument, that the Panels erred in "characterize[ing]" the objectives of the  
2016 measure in a manner that is "contradicted" by the measure itself, is wrong. Mexico makes this 
argument despite not choosing to appeal the substance of the Panels' finding that the measure is 
concerned with the risks facing dolphins "at an individual level, rather than at a population level." 
As Mexico has raised no such claim of appeal, there is no basis for the Appellate Body to reconsider 
this finding by the Panels. Further, the aspect of the measure Mexico raises does not undermine the 
Panels' find ing.  
 iii. The Panels Were Correct Not to Rely on "Absolute Effects" to Evaluate Risk 
Profiles  
20. In section V.C.1.c(3), Mexico claims that the Panels erred in rejecting the argument that, if 
the Panels did not rely on a PBR methodology, they should rely on "absolute levels of adverse 
effects." Mexico's argument should be rejected. The Appellate Body has made it clear that, in this 
dispute, the assessment under Article 2.1 requires an "evaluation of the overall levels of  relative  
risks attributable to differe nt fisheries, including in respect of both observable and unobservable 
harms." Thus, the analysis (1) must assess "observable and unobservable harms" ( i.e., "overall" 
harms), and (2) must be "relative" among the risks of different fisheries. Mexico's propo sed absolute 
effects metric is neither comprehensive nor relative. First, it considers only observable harms and 
therefore is incompatible with an "overall" assessment of risk. Second, it is incompatible with a 
"relative" assessment – and an assessment of the "likelihood" of harms in different fisheries – 
because it does on not "contextualize" the adverse effects on dolphins in different fisheries based on 
the different sizes and effort levels of fisheries.  
 iv. The Panels Were Correct Not To Rely on Alleg ed Differences in Accuracy to 
Evaluate Risk Profiles  
21. In section V.C.1.c(4), Mexico claims the Panels erred by "rejecting the risks created in certain 
ocean areas by insufficient regulatory oversight." Mexico's argument that "insufficient regulatory 
oversig ht" itself causes  greater risk of harm to dolphins and so must be included in the risk profiles 
of fisheries was addressed above. Mexico's argument that "insufficient regulatory oversight" must WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  be included in the risk profiles of fisheries because it can a ffect the reliability of reporting of harms 
to dolphins was fully considered and rejected by the Panels. As they explained, the risk of inaccurate 
certification or tracking "are not risks that affect dolphins themselves" and thus do not form part of 
the "r isk profile" for dolphins of tuna fishing in different fisheries, as described by the Appellate Body 
in the first compliance proceeding. Rather, the risk of inaccurate certification or tracking may be 
relevant to assessing whether the distinctions of the 2 016 measure are calibrated to the risk profiles 
of different fisheries.  
2. The Panels Correctly Found that the Eligibility Criteria, in Context as Part of the 
Whole Measure, are Calibrated  
22. In section V.C.2.a, Mexico appeals paragraphs 7.538 -547, which set out the Panels' legal 
analysis and finding that the eligibility criteria are calibrated to the risks to dolphins posed by 
"different fishing methods in different areas of the ocean." All of  Mexico's arguments lack merit.  
a. Mexico's Argument that the Panels' Assessment was Incomplete Should be Rejected  
23. Mexico claims that the Panels' assessment of whether the eligibility criteria are calibrated was 
"incomplete and limited to justifying the i neligibility of the AIDCP -compliant dolphin set method." 
However, it is clear that the Panels' analysis and conclusion was not limited to the ineligibility of 
setting on dolphins but also encompassed the conditional eligibility of tuna caught by the other 
fishing methods. First, the Panels' framing of their analysis in Section 7.8.2 shows that they were 
assessing all components o f the eligibility criteria. Second , the body of the Panels' analysis also 
makes this clear: the Panels continually emphasized that it was the comparison  between setting on 
dolphins and other fishing methods that rendered the eligibility criteria calibrated  to risk. Third, the 
Panels' subsequent analysis and descriptions of Section 7.8.2 confirm that their analysis and 
conclusions in that section covered both the prohibitive and permissive aspects of the eligibility 
criteria.  
b. Mexico's Argument that the Pa nels Failed to Assess the Risk Profiles of Different 
Ocean Areas Should be Rejected  
24. Mexico claims that, in their analysis of whether the eligibility criteria are calibrated, the Panels 
"failed to assess the risk profiles of different ocean areas." Mexico's  argument that properly 
calibrated eligibility criteria cannot  distinguish based on fishing method simply repeats arguments 
made earlier in Mexico's submission and addressed above. Mexico's second argument – that the 
Panels' conclusions on the eligibility criteria did not reflect, and indeed were inconsistent with, their 
findings on the risk profile of individual fisheries other than the ETP large purse seine fishery – is 
likewise incorrect.  
25. Mexico's argument that the Panels mentioned an "incomplete" selec tion of fisheries in their 
analysis of the eligibility criteria is misplaced because the Panels' analysis of risk profiles in 
Section  7.8.2 was based on their earlier factual findings and conclusions in Section 7.7.2. The Panels 
said so explicitly at the o utset of Section 7.8.2. Moreover, the three previous factual "conclusions" 
on which the Panels' finding that the eligibility criteria were calibrated is based are conclusions the 
Panels drew in Section 7.7.2, based on their extensive review of the factual record. Therefore, 
Mexico's argument that the Panels ignored certain "findings" or "ocean areas" in Section  7.8.2 is 
wrong. In Section 7.8.2, the Panels summarized the critical findin gs and conclusions from 
Section  7.7.2 and gave particular "instance[s]" o f relevant facts, but  they did not attempt – or need  – 
to reference every exhibit or fishery on the record on which their conclusions indirectly relied. Rather, 
as they explained, they relied on the "conclusions" from their previous analysis, which were based 
on all the relevant evidence on the record. (Also, Mexico misstates several of the "findings" and 
"evidence" it claims the Panels "ignored.")  
c. Mexico's Argument that the Panels' Assessment Omitted Relevant Factors Reflects 
Should be Rejected  
26. Mexico argues that the Panels analysis of whether the eligibility criteria are calibrated is in 
error because the Panels "failed to include relevant factors in the risk profiles of the fishing methods 
and ocean areas." The arguments repeat, without addition, argu ments Mexico raised in other WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  sections of its appellant submission that are addressed above. Thus, Mexico's argument that the 
Panels' analysis of the eligibility criteria is incomplete and in error should be rejected.  
3. The Panels Correctly Found that the Certification Requirements, in Context as Part 
of the Whole Measure, are Calibrated  
27. In section V.C.2.b, Mexico appeals paragraphs 7.571, 7.572 and 7.603, 7.607 -608, and 7.609 
and 7.710 of the Reports. These paragraphs are part of Section 7.8.3, in which th e Panels found 
that the certification requirements of the 2016 measure are "calibrated to the risks to dolphins 
arising from the use of different fishing methods in different areas of the ocean." All of Mexico's 
arguments should be rejected.  
a. Mexico's A rgument that the Panels Wrongly Relied on Their Evaluation of Risk 
Profiles Should be Rejected  
28. Mexico argues the Panels erred in relying in their analysis of the certification requirements on 
their "erroneous evaluation" of the "comparative risk profiles of the different fishing methods." This 
argument relies entirely on arguments that were addressed above.  
b. Mexico's Argument that the Panels Failed to Conduct an Appropriate Analysis of 
Ocean Areas Should be Rejected  
29. Mexico argues that the Panels failed t o analyze "the risk profiles of ocean areas" and, 
specifically, "to compare the ETP ocean area to other ocean areas." All of Mexico's arguments should 
be rejected.  
30. Mexico is wrong that the Panels' analysis of the risk profile of the ETP large purse seine fishery 
and other fisheries was based on global averages concerning different fishing methods and not a 
review of individual fisheries. In Section 7.7.2, the Panels thoroughly reviewed all the evidence on 
the record on the seven tuna fishing methods, inclu ding all the evidence on particular fisheries and 
drew conclusions about the risk profile of each of the tuna fishing methods, as used in each and all 
of the ocean areas for which there was evidence on the record. They concluded that setting on 
dolphins in  the ETP had a much higher risk profile than the other tuna fishing methods used inside 
and outside the ETP. These factual findings from Section 7.7.2 on the risk profile of different fishing 
methods in the ocean areas for which evidence was available were  the basis for the analysis of the 
certification requirements in Section 7.8.3.  
31. The three specific arguments Mexico advanced are also incorrect. First, Mexico is wrong that 
the Panels did not correctly analyze the risk profile of the ETP large purse seine  fishery because they 
did not account for vessels that may not set on dolphins. The Panels explicitly addressed this fact 
and explained that, while not all large purse seine vessels in the ETP "actually do set on dolphins," 
what gives the fishery "its spec ial risk profile" is the fact that only in that fishery is there a "technical 
and legal possibility of setting on dolphins" and only in that fishery does setting on dolphins "occur 
in a consistent and systematic manner." None of Mexico's assertions undermi ne this finding. Second , 
Mexico is wrong that the Panels failed to "consider" whether "particular non -ETP fisheries ... should 
be given different risk profiles" and that certain fisheries were classified as "low risk" based evidence 
on other fisheries usin g the same gear type. The Panels did analyze whether any "particular" fisheries 
should not be classified as "low risk" in Section 7.7.2 and in assessing the determination provisions 
and found that the only high risk fisheries shown by evidence on the recor d to exist today were 
gillnet fisheries in the Indian Ocean. Third, Mexico is wrong that the Panels erred in not addressing 
the observer certification requirements on the seven  U.S. domestic fisheries.  
c. Mexico's Argument that the Panels' Reasoning Conce rning Margins of Error 
Constituted Legal Error Should be Rejected  
32. Mexico claims that the Panels applied the wrong legal standard in assessing the certification 
requirements and that this led them to erroneously find that the measure can be calibrated "wher e 
it allows higher margins of error for certifications in all ocean areas other than the ETP." This 
argument is redundant of those advanced in previous sections of Mexico's submission and addressed 
above.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  d. Mexico's Argument on the Panels' Analysis and C onclusions Concerning the 
Determination Provisions Should be Rejected  
33. Mexico claims that the Panels erred in finding that "the determination provisions contribute to 
the calibration" of the certification requirements. Mexico's argument is in error.  
34. First, the Panels did not fail to take into account that the determination provisions are not 
based any of the three variables that Mexico raises. Rather, the Panels had already found that none 
of those variables was an appropriate basis to assess whether the mea sure, including the certification 
requirements, is calibrated to the risk profile for dolphins of tuna fishing by different fishing methods 
in different ocean areas. Mexico advances no additional arguments why the determination provisions 
should be based o n any of these variables.  
35. Second, there was no "inconsistency" between the Panels' analysis of the determination 
provisions and their reliance in other parts of their Reports on the level of observed dolphin 
mortalities for 2009 -2015. The Panels relied on the 2009 -2015 figure as pa rt of their assessment of 
the risk profile of setting on dolphins in the ETP. However, as the Panels noted, that level of dolphin 
mortalities reflects the decreases in observed deaths that have occurred since the 
La Jolla Agreement and AIDCP requirements i ncorporated by the U.S. measure went into effect. 
Therefore, they do not represent the level of "regular and significant" dolphin mortality that would 
justify additional requirements being imposed in the first place. However, by setting a lower 
benchmark t he measure takes a more dolphin -protective approach to fisheries not currently 
designated under the determination provisions. And even if the benchmark had been set at the 
2009-2015 level, the application of the measure would be unchanged.  
36. Finally, Mexico 's assertion that, under the Panels' approach, any fishery below the "regular 
and significant" dolphin mortality or serious injury threshold is "assumed" to pose no or a de minimis  
risk to dolphins is incorrect. The Panels explicitly recognized that such f isheries may pose some risk 
of harm to dolphins but found that the certification requirements of the 2016 measure "address" 
those risks to dolphins " in a way that is calibrated to, tailored to, and commensurate with the risk 
profiles of those fisheries." T hat conclusion is correct.  
4. The Panels Correctly Found that the Tracking and Verification Requirements, in 
Context as Part of the Whole Measure, are Calibrated  
37. The United States has addressed above: (1) Mexico's argument that the Panels erred in relying 
on their previous "erroneous evaluation of risk profiles"; (2) Mexico's argument that the Panels erred 
in not including in its assessment of the risk profiles of different fisheries criteria "related to the 
accuracy of the label," including the "sufficien[ cy] of regulatory oversight, the reliability of reporting, 
the existence of IUU fishing and the existence of transshipment"; and (3)  Mexico's argument that 
the Panels "reasoning regarding the determination provisions repeats the same errors discussed 
above  in relation to the Panels' reliance on the determination provisions to support the certification 
requirements."  
a. Mexico's Claim that the Panels' Applied the Wrong Analysis to Conclude that 
Differences Between the AIDCP and NOAA Regimes Have Been Narrow ed Should be 
Rejected  
38. Mexico's argument that the Panels' analysis of the tracking and verification requirements 
constitutes legal error because, while the Panels "stated they would apply the same analytical 
framework as had been applied in the first compli ance proceeding," the Panels "failed to consider all 
the relevant factors" fails.  
 i. Mexico's Claim Addresses the Panels' Appreciation of the Evidence  
39. All of Mexico's arguments in section V.C.2.c(4) appear directed at the Panels' appreciation of 
the fact s and evidence. Mexico's main arguments are that the Panels ignored the alleged "lack of 
evidence" on certain points, ignored evidence on transshipment, and weighed the evidence 
concerning certain U.S. laws and regulations differently than the first compli ance panel. All these 
arguments address whether the Panels made an objective assessment of the facts as to the depth, 
accuracy, and degree of government oversight of the NOAA regime and are aimed at undermining WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  the finding that the "differences between the  AIDCP and NOAA regimes 'have been considerably 
narrowed.'" On this basis, Mexico's argument should be rejected.  
 ii. Mexico Identifies No Legal Error  
40. To the extent that Mexico has raised a legal appeal, the argument seems to be that the 
"factors" that th e first compliance panel considered and the conclusions it drew were legally 
mandated by Article 2.1, such that there was no other way for the Panels to conduct a correct 
analysis of whether the tracking and verification requirements are consistent with th at provision. 
This argument is incorrect and should be rejected.  
41. The first compliance panel's analysis of the tracking and verification requirements under Article 
2.1 was focused on comparing the difference in relative "burdens" imposed by the NOAA and AID CP 
tracking and verification regimes. Thus, any differences between the regimes – regardless of whether 
they contributed to their ability to segregate and track dolphin safe tuna – were relevant to the 
panel's analysis if they made one more burdensome than  the other. The panel's analysis was 
reversed by the Appellate Body for that very reason. As the Appellate Body explained, the panel's 
analysis was incorrect because it focused on identifying and analyzing the difference in "burden" 
between the AIDCP and N OAA tracking and verification regimes, rather than whether the measure, 
including the tracking and verification requirements, was "calibrated to the risks to dolphins arising 
from different fishing methods in different areas of the oceans." Of course, once  the Panels in this 
proceeding adopted the correct legal analysis the relevant factors for the analysis did change 
somewhat, and the Panels did not err by assessing some factors differently, as they were doing so 
as part of different legal tests.  
 iii. The Panels Appropriately Assessed the Facts  
42. Finally, regardless of how Mexico's claim was raised, none of Mexico's arguments concerning 
the Panels' appreciation of the facts and evidence on the record have merit.  
43. As to the depth  of the AIDCP and NOAA regime s, Mexico is wrong to assert that the Panels 
"did not comment" on the U.S. evidence concerning the "actual practice of processors." In fact, the 
Panels explicitly addressed the finding from the previous compliance proceeding concerning 
traceability to the well. In response to "further explanations" by the United States, the Panels 
clarified the finding of the previous compliance panel regarding traceability to the well under the 
AIDCP regime. In fact, as the Panels found, under the AIDCP regime, while tuna can "potentially " be 
traced back to the well in which it was stored, the AIDCP requirement is that it be traced back to 
the group of dolphin -safe wells from that vessel trip (potentially all of the wells on the vessel). Under 
the NOAA regime, as amended by  the 2016 IFR, the requirement is the same: dolphin -safe tuna 
must be traceable to the "harvesting vessel" and to the group of storage locations in which dolphin -
safe tuna was stored (potentially the entire vessel). Thus, there is "no longer any meaningful  
difference" between the regimes in this regard. Therefore, it is appropriate that the Panels "did not 
comment" on whether the exhibits submitted by the United States (including Exhibit US -177, which 
was Exhibit US -192 in the first compliance proceeding) s howed that U.S.  processors necessarily 
track tuna to the well in which it was stored.  
44. As to the accuracy  of the AIDCP and NOAA regimes, Mexico is wrong that the Panels "did not 
say anything" about the "lack of evidence that processors and importers could actually provide 
reliable tracking documentation" or about the "problem of multiple intermediaries" before tuna 
reaches the processor. The Panels in this dispute noted the previous panel's findings and explained 
that the 2016 IFR imposed a new requirement that all U.S. processors and importers "collect and 
retain ... information on each point in the chain of custody" and that this information be 
"sufficient  ... to conduct a trace -back of any product marketed as dolphin safe to verify that the tuna 
product i n fact meets the dolphin -safe labelling requirements." Thus, the Panels' finding on the 
additional legal requirement imposed by the 2016 IFR covers both the completeness of the chain of 
custody documentation and its substantive truth and covers all relevan t intermediaries, both prior 
to the tuna reaching the cannery and afterwards. Consequently, it covers all of the statements of 
the first compliance panel cited by Mexico.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
- 25 - 
 
  45. Finally, as to government oversight , Mexico is wrong that the Panels "did not addres s the 
findings of the first compliance Panel regarding the lack of evidence that processors and importers 
could actually track tuna back to the well in which was stored, or ensure that certificates matched 
to specific lots of tuna." The Panels found that t he situation was different than the previous 
proceeding because there is now a legal requirement that canneries and importers "verify" the 
completeness and correctness of the chain of custody documentation and captain certification. 
Consequently, there are  no longer any "differences" between the AIDCP and NOAA regimes as to 
the chain of custody documentation to which the AIDCP "national and regional authorities" and 
NOAA, respectively, must have access. Given the symmetry of the legal requirements and the P anels' 
finding that both are meaningful and enforceable, there was no need for the Panels to compare the 
evidence concerning the implementation of the requirements, as the first compliance panel did after 
finding that the NOAA regime under the 2013 did not  require complete, accurate chain of custody 
documentation.  
46. Finally , Mexico's argument on the Panels' evaluation of the "enforcement penalty statutes" 
also lacks merit. The first compliance panel had concluded that there was no relevant legal 
requirement to collect and verify chain of custody documentation. In these proceedings, by contrast, 
the Panels found that there is such a requirement. Consequently, the existence of civil and criminal 
penalties for, inter alia , breaching the legal requirements of the  dolphin safe labeling regulations or 
submitting false documents to the U.S. government have a completely different relevance in this 
proceeding.  
b. The Panels Acted Consistently with Article 11 in their Treatment of Exhibit  MEX-127 
47. Mexico's argument that  the Panels acted inconsistently with Article 11 of the DSU by failing to 
cover Exhibit MEX -127 in their analysis of the tracking and verification requirements because this 
exhibit shows that "the tuna industry ... is not currently able to provide verifica tion of the catch to 
the individual vessel and throughout the supply chain" is incorrect.  
48. First, properly interpreted, Exhibit MEX -127 does not undermine the findings of the Panels. 
Mexico assumes that Exhibit MEX -127 refers to the "verification" required  under the measure's 
tracking and verification requirements, but, in fact, the exhibit refers to a different type of 
"verification" altogether. Thus, the statement that processor systems are not able to provide 
"verification of the catch to the individual vessel and throughout the supply chain" is not suggestive 
that processors do not meet the requirements of the AIDCP or NOAA regimes.  
49. Second, Mexico's argument is an inappropriate attempt to recast as a DSU Article 11 claim an 
argument that Mexico made bef ore the Panels and that the Panels rejected. Indeed, the arguments 
that Mexico puts forward are identical to those it put forward before the Panels in its comments on 
the U.S. response to question 46. The Panels rejected Mexico's interpretation of Exhibit MEX-127 
when they explained that it was "not directly relevant to [their] inquiry."  
50. Third, even if Mexico's interpretation of Exhibit MEX -127 were correct, it would not undermine 
the Panels' finding that the differences between the regimes had been "narro wed" because Mexico 
would not have identified any errors that undermine the findings that led to that conclusion, let alone 
that undermine the objectivity of the Panels' assessment of the facts. Mexico's arguments about 
Exhibit MEX -127 concern an argument Mexico made that the Panels did not accept or use as a basis 
for their analysis. They do not detract from the factual bases of the Panels' finding in the evidence 
on the record or introduce new evidence that "contradict[s]" those bases. Thus, Mexico's argu ments 
concerning Exhibit MEX -127, even if they reflected the correct interpretation of that exhibit, do not 
undermine the accuracy – let alone the objectivity – of the Panels' assessment that the differences 
in the tracking and verification requirements fo r tuna caught outside and inside the ETP large purse 
seine fishery have been narrowed.  
5. The Panels Correctly Found that the Measure is Calibrated  
51. In Section 7.8.6 of the Reports, the Panels analyzed whether the 2016 measure, as a whole, 
was "calibrated to the risks to dolphins arising from the use of different fishing methods in different 
areas of the ocean" and concluded that it was. Mexico argues that the Panels erred in so finding 
because their intermediate findings concerning the eligibi lity criteria, certification requirements, and 
tracking and verification requirements" "were the exclusive basis for this assessment" and, WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  accordingly, the alleged errors that Mexico identified in those assessments "flowed through" the 
Panels' assessment o f the measure as a whole.  
52. As shown in the preceding sections, the Panels' intermediate conclusions concerning the 
eligibility criteria, certification requirements, and tracking and verification requirements were correct 
and not in error. In addition, they were not the "exclusive basis" for the Panels' assessment. Contrary 
to Mexico's suggestion, the Panels did not simply refer to their previous intermediate conclusions. 
Rather, the Panels explained how the components of the measure "work together" to "achie ve the 
objectives of the 2016 Tuna Measure." In particular, the Panels found that certification requirements 
(including the determination provisions) effectively "work together with and reinforce the eligibility 
criteria" and thus enable U.S. consumers "kn ow whether tuna used in producing tuna products was 
obtained by fishing methods that harmed dolphins," and the tracking and verification requirements 
"reinforce" the eligibility criteria and certification requirements and "work together" with them by 
controlling "how the tuna caught by different fishing methods is stored on board the fishing vessels, 
unloaded and handed over to the canneries." Finally, the determinations provide the "necessary 
flexibility" that allows the measure to ensure that the same req uirements are imposed on situations 
that are "similar," with respect to the risk to dolphins.  
II. MEXICO'S APPEAL REGARDING ARTICLE XX  OF THE GATT 1994 SH OULD BE 
REJECTED  
53. Mexico appeals the Panels' finding that the 2016 measure "is not applied in a manner that 
constitutes a means of arbitrary or unjustifiable discrimination, and is th erefore justified under 
Article  XX of the GATT 1994. Mexico's arguments should be rejected.  
54. First, the Panels did not err in relying on their findings under Article 2.1.  
55. The Panels' Article XX analysis is entirely consistent with the Appellate Body's analysis of 
Article XX in the first compliance proceeding. The Appellate Body confirmed that the analysis of 
whether the dolphin safe labeling measure is calibrated to the risks t o dolphins posed by tuna fishing 
is as important to the analysis of "arbitrary or unjustifiable discrimination" under the chapeau of 
Article XX as to the assessment of even -handedness under Article 2.1. It explained: "In the 
circumstances of this dispute,"  "an assessment of whether the requirements of the amended tuna 
measure are calibrated to the likelihood that dolphins would be adversely affected in the course of 
tuna fishing operations in the respective conditions" is "relevant for an analysis of arbitr ary or 
unjustifiable discrimination under the chapeau of Article XX."  
56. Further, contrary to Mexico's arguments, the Panels' Article 2.1 analysis did encompass an 
assessment of whether the regulatory distinctions of the 2016 measure are rationally related t o its 
objectives. This is because the relevant nexus between the measure's distinctions and its objectives 
is inherent in the assessment of whether the measure is calibrated to the risks to dolphins of different 
tuna fishing methods in different ocean area s. As the Panels explained, the objectives of the measure 
inform both "the form and content of the calibration test" and its application. Thus, the "rational 
connection test" does not exist as a separate legal step or as a "constraint" on the calibration a nalysis 
but is assessed through the calibration analysis itself. The Panels' analysis is supported by the 
Appellate Body reports in previous proceedings.  
57. Second , Mexico's argument concerning US – Shrimp  lacks merit and should be rejected. The 
facts and co nclusions of US – Shrimp  are not applicable to this dispute. Unlike the measure in  
US – Shrimp , the 2016 measure does not direct NOAA to engage in negotiations to try to achieve 
the objectives of the measure by international agreement, and the United States did not engage in 
negotiations with some Members but not others. Also, Mexico is wrong that the United States has 
"never raised its concerns" concerning the unobservable harms caused by setting on dolphins in the 
IATTC fora. In fact, the United Stat es has made the unobservable harms caused by dolphin sets a 
central theme of its engagement in the AIDCP from the beginning. Indeed, there is an AIDCP/IATTC 
Scientific Advisory Board that studies and considers the unobservable harms caused by dolphin sets.  
The United States is instrumental in the group's operations and NMFS studies provide much of the 
research that the group considers.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  III. CONCLUSION  
58. The United States respectfully requests the Panels to find that the United States has brought 
itself into c ompliance with the DSB recommendations and rulings and the U.S. dolphin safe labeling 
measure is now consistent with the TBT Agreement and the GATT 1994.  
_______________  
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  ANNEX C  
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Australia's  third participant's submission  29 
Annex  C-2 Executive summary of Brazil's  third participant's submission  30 
Annex  C-3 Executive summary of the European Union's  third participant's submission  31 
Annex  C-4 Executive summary of Japan's  third participant's submission  32 
 
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
- 29 - 
 
  ANNEX  C-1 
EXECUTIVE SUMMARY OF  AUSTRALIA'S  THIRD PARTICIPANT'S  SUBMISSION1 
1. "Even -handedness" is a concept used to determine whether a measure's detrimental impact 
on imports stems exclusively from a legitimate regulatory distinction to assess a measure's 
consistency  with Article 2.1 of the TBT Agreement.  
2. Australia considers that an assessment of the legitimacy  of the regulatory distinctions imposed 
by a measure must be made in light of that measure's objectives . 
3. "Calibration" is a means of testing, in this particular  dispute, the even -handedness of the 
2016 Tuna Measure to determine whether its impact on Mexican imports stems exclusively from a 
legitimate regulatory distinction.  
4. In Australia's view, the calibration analysis adopted by the Panel – which assessed whethe r 
the measure is calibrated to the risks to dolphins arising from different fishing methods in different 
areas of the ocean – takes account of the measure's objectives. Mexico's contention that the Panel's 
analysis did not consider the objective of ensurin g accurate consumer information fails to recognise 
that this objective formed part of  the objective of protecting dolphins . 
5. Since the Panel's calibration analysis was based on the objectives of the measure, Australia 
considers the Panel did not err in its interpretation of the analysis required to determine the 
legitimacy of the regulatory distinctions imposed by the measure.  
 
                                                
1 Total number of words: 272.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  ANNEX C -2 
EXECUTIVE SUMMARY OF  BRAZIL 'S THIRD PARTICIPANT'S  SUBMISSION1 
1. Brazil deals with two main issues in its submission: (i) the scope of the even -handedness test 
under Article 2.1 of the TBT Agreement and the objectives of the Measure; and (ii) the reasoning 
behind the Panels' findings regarding the risks to dolphins.  
2. First, when reviewing the even -handedness t est in the present dispute, the Appellate Body 
should be guided by the level of adverse effects of the measure and not only by fishing methods, 
contrary to what was done by the Panels. The even -handedness of the measure should be assessed 
on the basis of p erformance requirements, not in relation to a specific technology. This is particularly 
important for developing members. In this regard, the adjudicating WTO bodies should be cautious 
concerning statements that could suggest that the only fishing methods that do not pose any harm 
to dolphins are those adopted by developed countries with ample means to purchase the most novel 
(and expensive) technologies. The mere reference to possible unobserved consequences of different 
fishing methods cannot justify less  favourable treatment.  
3. Second, due to the technical expertise demanded to perform a substantiated assessment of 
the risks to the dolphins associated with distinct fishing methods in different areas of the ocean, the 
Panels could have requested the assista nce of independent exp erts in accordance with Article  13.2 
of the DSU. In choosing not to do so, the Panels resorted to the evidence produced by the parties 
and to their own limited understanding of the subject in order to make their findings.  
 
                                                
1 Word count: 251.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  ANNEX C -3 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION'S  THIRD PARTICIPANT'S  SUBMISSION1 
1. Mexico's interpretation appeal concerns the proper role of the regulatory objective in the 
analysis under Article 2.1, and in particular the  "rational connection" between the regulatory 
objective and the detrimental impact, which should be taken into account in addition to the 
"calibration" test.  
2. The European Union considers that panels should not use a given regulatory objective as a 
benchmar k for second -guessing every single detail of a regulatory measure. Two objectives could 
be seen as complementary, without imposing on the regulating Member the burden of showing that 
the measure is perfectly coherent with two distinct objectives.  
3. "Calibrat ion" is not a treaty term, but merely a helpful concept developed in jurisprudence. 
Calibration is not a precise quantitative analysis, and panels should allow for a margin of error when 
conducting the assessment of even -handedness.  
4. Whether a rational rela tionship between the detrimental impact caused by the measure and 
its policy objective exists is a question that may be asked when applying Article 2.1. This is not an 
additional or distinct step to be applied in the Article 2.1 analysis.  
5. Whether the Pane ls actually properly took the regulatory objectives of the measure into 
account when applying their interpretation of Article 2.1 to the facts seems to be an issue of the 
application, as opposed to interpretation, of Article 2.1.  
6. Mexico considers that the Panels made no substantive findings under Article 2.1 with respect 
to arbitrary or unjustifiable discrimination and that their assessment of the requirements of the 
chapeau  was erroneously incomplete.  
7. The European Union notes that there are several differ ences between the analyses required 
under Article 2.1 and under the chapeau  of Article XX, including the fact that the legal standards 
applicable under the two provisions differ. However, the two analyses are not disconnected and 
benefit from each other.  
8. Article 2.1 of TBT Agreement, the chapeau  of Article XX of G ATT 1994 and Article 2.3 of 
SPS Agreement perform similar functions. The chapeau  of Article XX is ultimately an expression of 
the principle of good faith, which also applies in respect of Article 2 .1.  
9. The Panels did not err in the analysis of the concepts of "arbitrary and unjustifiable 
discrimination" under the chapeau  of Article XX by relying on their co nclusions reached under 
Article  2.1. 
 
 
                                                
1 Total length of the submission, excluding executive summary: 39 35. Length of the executive 
summary: 381.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  ANNEX C -4 
EXECUTIVE SUMMARY OF  JAPAN 'S THIRD PARTICIPANT'S SUBMISSION1 
1. The Appellate Body has applied an "even -handedness" test to determine whether a 
detrimental impact of a technical regulation on imports stems from a legitimate regulatory 
distinction , as a means of determining whether the  measure accords non -discriminatory treatment 
to imports as required under Article 2.1 of the TBT Agreement. In applying the "even -handedness" 
test, the Appellate Body has used a "calibration test" as an analytical tool.  It is Japan's view that the 
identif ication and assessment of the policy objective of the measure is a prerequisite to a proper 
calibration test. Clearly, it is the implementing Member that is in the best position to articulate and 
explain the policy objective, and how the regulatory distinctions in a measure achieve this policy 
objective.  
2. The "calibration test" must assess whether the regulatory distinctions are tailored to the 
specific level and nature of risk that exist under each scenario for which a regulatory distinction 
exists.  Thus, the different regulatory burdens that are imposed as a result of the regulatory 
distinctions in the 2016 Tuna Measure must be proportionate to the requirements necessary to 
achieve the level of dolphin safety that the United States seeks to achieve t hrough the "dolphin -safe" 
label.  
3. Japan views the consideration made under Article 2.1 of the TBT Agreement as informative in 
determining whether the 2016 Tuna Measure is consistent with the chapeau of Article XX of the 
GATT 1994. As such, the assessment of whether certain regulatory disti nctions are rationally related 
to a policy objective under the "calibration test" is relevant to the assessment of whether a 
discriminatory measure constitutes "arbitrary or unjustifiable discrimination" under the Article XX 
chapeau. As the 2016 Tuna Measu re restricts fishing not only in its domestic  territories  but also in 
foreign territories , the analysis should be undertaken  stringently . 
 
_______________  
 
 
                                                
1 295 words.  WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
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  ANNEX D  
PROCEDURAL RULING  
Contents  Page  
Annex  D-1 Procedural Ruling of 20 December 2017  regarding Japan's request for an 
extension to the deadline for filing the third participants' submissions and 
executive summaries  34 
 
 
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
- 34 - 
 
  ANNE X D-1 
PROCEDURAL RULING OF  20 DECEMBER 2017 
1. On 5 December 2017, the Appellate Body Division hearing  this appeal informed the participants 
and third participants of the Working Schedule for Appeal. According to the Working Schedule, the 
third participant s' submissions and executive summaries were due on Wednesday, 3 January 2018.  
2. On 19 December  2017, the Appellate Body received a communication from Japan requesting 
an extension to the deadline for filing the third participants' submissions and executiv e summaries 
due to the year -end closure of both the WTO Secretariat and Japanese governmental offices. In its 
letter, Japan requested that the Division allow Japan to file the third participant submission and 
executive summary via electronic mail on Thursd ay, 28 December 2017, and to submit these 
documents in paper form on Thursday, 4 January 2018. Japan indicate d, in its letter, that it d id not 
consider that its request  would unduly delay the se appellate  proceedings or would result in manifest 
unfairness.  
3. That same day, on behalf of the Division hearing this appeal, I invited Mexico, the Uni ted States, 
and the other third participants to comment, should they so wish, on Japan's request by 12 noon on 
20 December  2017. Comments were received from Mexico on  20 December 2017. Mexico had no 
objection to Japan's request, provided that it did not result in an undue delay to the proceedings.  
Neither the United  States nor other third participants commented on Japan's request.  
4. The Division considers the reasons  identified by Japan, and Mexico's comments, to be pertinent 
to its assessment of Japan's request. The Division also takes into account the fact that none of the 
participants or other third participants has objected to the request for changing the deadline  for 
filing the third  participants' submissions and executive summaries. The Division is cognisant of the 
logistical and administrative implications of having to make fi lings immediately after the 
WTO Secretariat and certain government offices reopen follo wing the year -end closure, and is keen 
to minimize any inconveniences resulting therefrom.  
5. Taking into account all of the foregoing, and in accordance  with Rule  16 of the 
Working  Procedures  for Appellate Review , on behalf of the Division hearing this appeal, I inform the 
third participants that the deadline for the third participants' submissions and executive summaries 
has been changed, for both submission in paper form and filing an electronic copy, to Thursday,  
4 January 2018 , by 5 p.m. Geneva time . 
_______________  
 
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
- 35 - 
 
  ANNEX E 
COMMUNICATION FROM T HE APPELLATE BODY  
Contents  Page  
Annex  E-1 Communication of 29 January 201 8 from the Appellate Body Chair to the Chair 
of the Dispute Settlement Body   36 
 WT/DS381/AB/RW/USA/Add.1 • WT/DS381/AB/RW2/Add.1  
 
- 36 - 
 
   
 
ANNEX E-1 
COMMUNICATION FROM THE APPELLATE B ODY1* 
I am writing to you pursuant to Article 17.5 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes (DSU), which stipulates that, as a general rule, the Appellate Body will 
circulate its Report no later than 60 days after the app ellant has formally notified the Dispute 
Settlement Body (DSB) of its decision to appeal. Article 17.5 states, furthermore, that when the 
Appellate Body considers that it cannot provide its Report within 60 days, it shall inform the DSB in 
writing of the r easons for the delay together with an estimate of the period within which it will submit 
its Report.  
 
Mexico notified the DSB on 1 December 2017 of its decision to appeal certain issues of law covered in 
the Panel Reports and legal interpretations develope d by the Panels in these cases, with the result that 
the 60 -day period expires on Tuesday, 30 January 2018. Due to the time required to hear and decide 
this appeal, the Appellate Body is not able to circulate its Report by this date.  
 
The Appellate Body f aces a substantial ly enhanced  workload in 2018 , with several appeals 
proceeding in parallel, and there is increasing overlap in the composition of the Divisions  hearing 
the different appeals  owing to the current vacancies on the Appellate Body . Due to the scheduling 
issues arising from these circumstances, the number and complexity of the issues raised in this and 
concurrent appellate proceedings, together with t he demands that these concurrent appeals place on 
the WTO  Secretariat's translation services, an d the shortage of staff in the Appellate Body Secretariat, 
the Appellate Body w ill not be able  to circulate its Report in this dispute within the 90 -day timeframe 
provided for in Article  17.5 of the DSU.  
 
The circulation date of the Appellate Body Report i n this appeal will be communicated to the 
participants and third participants after the oral hearing.  
 
__________  
 
                                                
* This notification, dated 29 January 2018 , was circulated to Mem bers as document WT/DS381/46 .