UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS
Document: Notification of an Appeal by the United States under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review
Date: 24 January 2012
Document codes: WT/DS381/10
Complainant: Mexico
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, Ecuador, EU, Guatemala, India, Japan, South Korea, New Zealand, Norway
Dispute stage: Implementation & Compliance
Agreements cited: Art. I:1, III:4  GATT 1994Art. 2.1, 2.2, 2.3, 2.4  Technical Barriers to Trade (TBT)

UNITED STATES – MEASURES CONCERNING THE IMPORTATION,
MARKETING AND SALE OF TUNA AND TUNA PRODUCTS

Notification of an Appeal by the United States under Article 16.4 and Article 17
of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), and under Rule 20(1)
of the Working Procedures for Appellate Review

 The following notification, dated 20 January 20 12, from the Delegation of the United States,
is being circulated to Members.

Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review , the
United States hereby notifies its decision to appeal to the Appellate Body certain issues of law
covered in the Report of the Panel in United States – Measures C oncerning the Importation,
Marketing and Sale of Tuna and Tuna Products () ("Panel Report") and certain legal
interpretations developed by the Panel.

1. The United States seeks review by the Appella te Body relating to the Panel's findings and
legal conclusion that the U.S. dolphin safe labeling provisions
1 constitute technical regulations within
the meaning of the Agreement on Technical Barriers to Trade ("TBT Agreement"). This conclusion
is in error and is based on erroneous findings on issues of law and legal interpretations of the
TBT Agreement, including:

(a) the Panel's interpretation and applicati on of the term "with which compliance is
mandatory" in the definition of a techni cal regulation in Annex 1.1 of the TBT
Agreement2; and

(b) the Panel's finding that U.S. dolphin safe labeling provisions are mandatory within
the meaning of Annex 1.1 of the TBT Agreement.3

As a result of the foregoing errors, the United Stat es requests the Appellate Body also to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

1 See Panel Report, para. 2.2. The U.S. dolphin safe labeling provisions include the Dolphin Protection
Consumer Information Act ("DPCIA"), regulations promulgated in accordance with the DPCIA, as codified in
Title 50, Section 216 of the Federal Regulations, and the ruling in Earth Island Institute v. Hogarth, 494 F.3d
757 (9th Cir. 2007).
2 See Panel Report, paras. 7.100-7.111.
3 See Panel Report, paras. 7.113-7.145.

2. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States requests the Appellate Body find that the Panel failed to make an objective assessment
of the matter before it as called for by Article 11 of the DSU by concluding that the U.S. measures
may only partially ensure that consumers are in formed about whether tuna was caught by using a
method that adversely affects dolphins.
4 The Panel drew this conclusion based on factual findings
that were without a sufficient evidentiary basis, without assessing the totality of the evidence, and
without adequate explanation, including:

(a) the Panel's conclusion that Mexico h as demonstrated that the use of fishing
techniques other than setting on dolphins outside of the Eastern Tropical Pacific
("ETP") may produce and has produced significant levels of dolphin bycatch
5;

(b) the Panel's finding that the U.S. provisions do not allow the consumer to accurately
distinguish between tuna caught in a manner that adversely affects dolphins and other
tuna6;

(c) that the threats faced by dolphins outsi de the ETP are not demonstrated to be lower
than similar threats faced by dolphins in the ETP7;

(d) that the differences with respect to the de pletion status of the dolphin stocks at issue
inside and outside of the ETP are not su fficient to justify the differences in
certification requirements under the U.S. provisions8; and

(e) that the requirements applicable in diffe rent fisheries under the U.S. provisions are
not calibrated to the likelihood of dolphins being killed or seriously injured.9

As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

3. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States requests the Appellate Body find that the Panel failed to make an objective assessment
of the matter before it as called for by Article 11 of the DSU by concluding that the U.S. measures
may only partially fulfill their stated objective of contributing to the protection of dolphins by
ensuring that the U.S. market is not used to encour age fishing fleets to catch tuna in a matter that
adversely affects dolphins.
10 The Panel drew this conclusion based on factual findings that were
without a sufficient evidentiary basis, without asses sing the totality of the evidence, and without
adequate explanation, including:

(a) the Panel's conclusions and findings as set forth in paragraphs 2(a)-(e) above11; and

(b) that the U.S. provisions do not calibrate the dolphin safe certification requirements to
the likelihood of interaction and harmful effects to dolphins.
12

4 See Panel Report, paras. 7.592, 7.599.
5 See Panel Report, paras. 7.517-7.531.
6 See Panel Report, paras. 7.542-7.545.
7 See Panel Report, para. 7.562.
8 See Panel Report, paras. 7.550.
9 See Panel Report, paras. 7.559-7.561.
10 See Panel Report, paras. 7.592, 7.599.
11 See Panel Report, para. 7.590.
12 See Panel Report, para. 7.600.

As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

4. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States seeks review by the Appellate Body of the Panel's legal conclusion Mexico identified a
reasonably available, less trade-restrictive alte rnative that would achieve a level of protection
equivalent to that achieved by the U.S. provisions.
13 This conclusion is in error and is based on
erroneous findings on issues of law and legal interpretations of the TBT Agreement, including:

(a) the conclusion that the ex tent to which consumer would be misled or deceived would
be no greater under the proposed alternative than under the U.S. measures14;

(b) that the proposed alternative would not create greater risks to dolphins in the ETP
than the U.S. provisions, and would fulfill the U.S. objectives at a level equivalent to
the U.S. provisions15;

(c) that significant dolphin mortality arises outside of the ETP from fishing techniques
other than setting on dolphins16;

(d) that the U.S. provisions do not address adverse impacts from fishing techniques other
than setting on dolphins outside the ETP17; and

(e) that at least some of the dolphin populations affected by fishing techniques other than
setting on dolphins are facing risks at least equivalent to those currently faced by
dolphin populations in the ETP under Agreement on International Dolphin
Conservation Program ("AIDCP") monitoring.
18

As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

5. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States seeks review by the Appellate Body of the Panel's legal conclusion that U.S. dolphin
safe labeling provisions are more trade-restrictive than necessary to fulfill th eir legitimate objectives,
taking account of the risks non-fulfilment would create. This conclusion is in error and is based on
erroneous findings on issues of law and legal interpretations of the TBT Agreement, including:

(a) the Panel's conclusions as set forth in paragraph 4; and

(b) that the proposed alternative would be less trade-restrictive than the U.S. provisions,
in that it would allow greater competitive opportunities on the U.S. market to
products with access to the AIDCP label.
19

13 See Panel Report, para. 7.578.
14 See Panel Report, paras. 7.573-7.574, 7.577, 7.618-7.619.
15 See Panel Report, para. 7.614, 7.617.
16 See Panel Report, para. 7.613.
17 See Panel Report, para. 7.613.
18 See Panel Report, para. 7.617.
19 See Panel Report, para. 7.568.

As a result of the foregoing errors, the United Stat es also requests the Appellate Body to reverse the
Panel's legal conclusion in para graph 8.1(b) of the Panel Report and its recommendation in
paragraph 8.3 of the Panel Report.

6. If the Appellate Body were to reject the U.S. appeal set out in paragraph 1, then the
United States requests the Appellate Body find that the Panel failed to make an objective assessment
of the matter before it as called for by Article 11 of the DSU by concluding that Mexico had identified
an alternative that is less trade restrictive than the U.S. provisions. The Panel drew this conclusion
based on factual findings that were without a sufficient evidentiary basis, without assessing the
totality of the evidence, and without adequate e xplanation, including that the proposed alternative
would allow greater competitive opportunities on the U.S. market to products with access to the
AIDCP label.
20 As a result of the foregoing errors, the United States also requests the Appellate Body
to reverse the Panel's legal conclusion in paragraph 8.1(b) of the Panel Report and its recommendation
in paragraph 8.3 of the Panel Report.

7. If the Appellate Body were to reject the U. S. appeal set out in paragraph 1, then the
United States seeks review by the Appellate Body of the Panel's finding that the AIDCP dolphin safe
definition and certification constitute a "relevant international standard" within the meaning of
Article 2.4 of the TBT Agreement. This conclusion is in error and is based on erroneous findings on
issues of law and legal interpretations of the TB T Agreement, including the Panel's finding that the
AIDCP is an international standardizing organiza tion for the purpose of Article 2.4 of the TBT
Agreement.
21 The United States requests the Appellate B ody find that the Panel failed to make an
objective assessment of the matter before it as called for by Article 11 of the DSU by concluding that
there are "institutional links" between the AI DCP and the Inter-American Tropical Tuna
Commission.22