WT/DS381/38  
 
10 June 2016  
(16-3208)  Page: 1/3  
  Original: English  
 
 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 
REQUEST FOR THE ESTABL ISHMENT OF A PANEL 
The following communication, dated 9 June 2016,  from the delegation of Mexico to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU. 
 
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My authorities have instructed me to request the establishment of a panel concerning the most-
recently amended Tuna Measure (the "2016 Tuna Measure") under Articles 21.5 and 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), Article 14 
of the Agreement on Technical Barriers to Trade  ("TBT Agreement"), and Article XXIII of the 
General Agreement on Tariffs and Trade, 1994 ("GATT 1994"). 
A. Background 
On 13 June 2012, the Dispute Settlement Body (" DSB") adopted the Appellate Body Report on 
United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products  ("US – Tuna II (Mexico) ") and the Panel Report, as modified by the Appellate Body 
Report, which found that the U.S. "dolphin-safe" labelling measures are inconsistent with 
Article 2.1 of the TBT Agreement and recommended that the United States bring its measures into 
conformity with its obligations under that Agreement.
1  The dolphin-safe labelling measures 
(collectively the "Tuna Measure") are composed of the United States Code , Title 16, Section 1385 
(the "Dolphin Protection Consumer Information Act"); the Code of Federal Regulations , Title 50, 
Section 216.91 and Section 216.92 (the "implementing regulations"); and a ruling by a US federal appeals court in Earth Island Institute v. Hogarth , 494 F.3d 757 (9th Cir. 2007) (the "Hogarth 
ruling").
2 
In its statement at the meeting of the DSB held on 25 June 2012, the United States announced its 
intention to implement the DSB’s recommendations and rulings in this dispute and stated that it would need a reasonable period of time (RPT) to do so.
3  On 17 September 2012, Mexico and the 
United States informed the DSB that they had agreed that the RPT was 13 months from 
13 June 2012, the date of adoption of the DSB’s recommendations and rulings. The RPT expired on 13 July 2013.
4 
On 9 July 2013, the United States published in its Federal Register a revision to its regulations 
administering the Tuna Measure (the "2013 Rule").5 Mexico and the United States disagreed as to 
"the existence or consistency with a covered ag reement of measures taken to comply with the 
                                               
1 Appellate Body Report and Panel Report, Action by the Dispute Settlement Body, WT/DS381/15, 
15 June 2012. See  Appellate Body Report, US – Tuna II (Mexico) , WT/DS381/AB/R, 16 May 2012, and Panel 
Report, US – Tuna II (Mexico),  WT/DS381/R, 15 September 2011. 
2 Appellate Body Report, US – Tuna II (Mexico) , para. 172. 
3 Minutes of DSB Meeting held on 25 June 2012, WT/DSB/M/318, 27 August 2012, para. 51. 
4 Agreement under Article 21.3(b) of the DSU, WT/DS381/17, 19 September 2012. 
5 78 Federal Register 40997 (July 9, 2013). WT/DS381/38 
 
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  recommendations and rulings" of the DSB in the di spute. On 15 November 2013, Mexico therefore 
requested the establishment of an Article 21.5 pa nel on the basis that the 2013 Final Rule was 
inconsistent with Article 2.1 of the TBT Agr eement and Articles I:1 and III:4 of the GATT 1994.6 
On 20 November 2015, the Appellate Body circulated its report on the Article 21.5 proceedings, 
concluding that the United States has not brought its dolphin-safe labelling regime for tuna 
products into conformity with the recommendations and rulings of the DSB, and recommending that the DSB request the United States to bring its measure into conformity with its obligations 
under the TBT Agreement and the GATT 1994.
7 On 3 December 2015, the DSB adopted the 
Article 21.5 Appellate Body report and panel report, as modified by the Appellate Body report.8   
On 10 March 2016, Mexico requested authorization from the DSB to suspend concessions in the 
amount of US$ 472.3 million annually.9 On 22 March 2016, the United States objected to the level 
of Mexico’s proposed suspension of concessions, and the matter was referred to arbitration 
pursuant to Article 22.6 of the DSU.10 
On 23 March 2016, the United States published a notice in its Federal Register revising the 
implementing regulations (the "2016 Rule").11 On 11 April 2016, the United States – without first 
requesting consultations with Mexico – requeste d placement on the agenda of the 21 April 2016 
DSB meeting a request for the establishment of  another Article 21.5 panel to determine the 
consistency of the most recently revised Tuna Me asure with the United States'obligations under 
the TBT Agreement and the GATT 1994.12 The panel was established at the 9 May 2016 meeting of 
the DSB and was constituted on 27 May 2016.13 
On 13 May 2016, Mexico requested consultations with the United States pursuant to Articles 21.5 
and 4 of the DSU, Article 14 of the TBT Agreement and Article XX II of the GATT 1994, in relation 
to the 2016 Tuna Measure. Mexico held consultations with the United States on 2 June 2016. Unfortunately, these consultations failed to resolve the dispute. 
B. Measure 
The following measures comprise the 2016 Tuna Measure:  
i. Section 1385 ("Dolphin Protection Consumer Information Act"), as contained in 
Subchapter II ("Conservation and Protection of Marine Mammals") of Chapter 31 
("Marine Mammal Protection"), in Title 16 of the United States Code ; 
ii. Code of Federal Regulations , Title 50, Part 216, Subpart H ("Dolphin Safe Tuna 
Labeling"), as amended by the 2013 Rule and 2016 Rule; 
iii. The court ruling in  Earth Island Institute v. Hogarth , 494 F.3d 757 (9th Cir. 2007) (the 
"Hogarth ruling"); 
iv. Any implementing guidance, directives, policy announcements or any other document 
issued in relation to instruments (i) through (iii) above, including any modifications or 
amendments in relation to those instruments. 
                                               
6 Recourse to Article 21.5 of the DSU by Mexico, Request for the Establishment of a Panel, 
WT/DS381/20, 15 November 2013. 
7 Appellate Body Report, US – Tuna II (Article 21.5 – Mexico) , WT/DS381/AB/RW, 20 November 2015, 
para. 8.2. 
8 Appellate Body Report and Panel Report pursuant to Article 21.5 of the DSU, Action by the DSB, 
WT/DS381/28, 4 December 2015. 
9 Recourse to Article 22.2 of the DSU by Mexico, WT/DS381/29, 11 March 2016. 
10 Recourse to Article 22.6 of the DSU by th e United States, WT/DS381/30, 22 March 2016. 
11 81 Federal Register 15,444 (March 23, 2016). 
12 Recourse to Article 21.5 of the DSU by the United  States, Request for the Establishment of a Panel, 
WT/DS381/32, 12 April 2016. 
13 Recourse to Article 21.5 of the DSU by the United  States, Constitution of the Panel, WT/DS381/37, 
2 June 2016. WT/DS381/38 
 
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  The United States has made no changes to the Dolphin Protection Consumer Information Act or 
the Hogarth ruling, and those measures remain an integral part of the 2016 Tuna Measure. 
C. Claims There is a disagreement between Mexico and the United States as to "the existence or consistency 
with a covered agreement of the 2016 Tuna Measure with the recommendations and rulings" of 
the DSB in the US – Tuna II (Mexico – 21.5)  dispute. Mexico considers that the United States has 
not brought the dolphin safe labelling provisions into compliance with the DSB's recommendations 
and rulings. Moreover, the 2016 Tuna Measure is not consistent with the United States'obligations 
under the covered Agreements. 
The claims in respect of which Mexico is seeking the establishment of a panel include: 
i. The 2016 Tuna Measure is inconsistent with Article 2.1 of the TBT Agreement because it 
continues to accord Mexican tuna products treatment less favourable than that accorded 
to like tuna products of the United States and to like tuna products originating in any other country; 
ii. The 2016 Tuna Measure is inconsistent with Article I:1 of the GATT 1994 because it 
continues to confer on tuna products originating in other countries an advantage which is not accorded immediately and unconditionally to like tuna products originating in 
Mexico; 
iii. The 2016 Tuna Measure is inconsistent with Article III:4 of the GATT 1994 because it 
continues to accord Mexican tuna products treatment less favourable than that accorded to like tuna products of US origin in respect of all laws, regulations and requirements 
affecting their internal sale, offering for sale, purchase, transportation, distribution or 
use. 
Mexico asks that this request be placed on the agenda of the DSB meeting scheduled for 
22 June 2016. 
 
 
 
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