UNITED STATES – MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS RECOURSE TO ARTICLE 22.2 OF THE DSU BY MEXICO
Document: Appellate Body report
Date: 11 March 2016
Document codes: WT/DS381/29
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
RECOURSE TO ARTICLE 22.2 OF THE DSU BY MEXICO
The following communication, dated 10 March 2016, from the delegation of Mexico to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 22.2 of the DSU.

Mexico requests that a meeting of the Dispute Settlement Body (DSB) be held on 23 March 2016
to consider the following agenda item:
United States – Measures Concerning the Importation, Marketing and Sale of Tuna
and Tuna Products (DS381)
- Recourse to Article 22.2 of the DSU by Mexico
Background of this request
On 13 June 2012, the DSB adopted the Appellate Body report and the Panel report as modified by
the Appellate Body report. In these reports, it was found that the tuna measure of the
United States was inconsistent with Article 2.1 of the Agreement on Technical Barriers to Trade
(TBT Agreement).
1 The DSB recommended that the United States bring the measure into
conformity with its obligations under the TBT Agreement.
The United States informed the DSB that it intended to implement the DSB recommendations and
rulings for which it required a reasonable period o f t i m e ( R P T ) . M e x i c o a n d t h e U n i t e d S t a t e s
agreed under Article 21.3(b) of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU) that the RPT for the United States to implement the
recommendations and rulings of the DSB in this dispute would expire on 13 July 2013.2
On 9 July 2013, the United States published in its Federal Register a legal instrument entitled
"Enhanced Document Requirements to Support Use of the Dolphin Safe Label on Tuna Products",
which the United States refers to as the "2013 Final Rule". The 2013 Final Rule made certain
changes to Sections 216.91 and 216.93 of CFR Title 50. Both the Dolphin Protection Consumer
Information Act and the Hogarth ruling remained unchanged. According to the United States, the
2013 Final Rule constituted the measure taken to comply with the DSB's recommendations and
rulings pursuant to Article 21.5 of the DSU. In Mexico's view, the amended tuna measure did not
bring the United States into compliance with the recommendations and rulings of the DSB.
By communication dated 2 August 2013, Mexico and the United States jointly informed the DSB of
"Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding," under

1 The measure at issue comprises:
a. United States Code, Title 16, Section 1385 (the "Dolphin Protection Consumer Information Act");
b. Code of Federal Regulations, Title 50, Section 216.91 ("Dolphin-safe labelling standards”) and Section
216.92 ("Dolphin-safe requirements for tuna harvested in the ETP [Eastern Tropical Pacific Ocean] by large
pursue seine vessels”);
c. The ruling in Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).
Panel Report, para. 2.1.
2 WT/DS381/17.

which the Parties agreed that Mexico would retain the right to challenge the amended tuna
measure under Article 21.5 of the DSU at any time. 3 The Parties also agreed that if the DSB ruled
that the amended tuna measure was inconsistent with a covered agreement further to proceedings
under Article 21.5, then Mexico would have reco urse to Article 22 of the DSU and could request
the DSB's authorization to suspend the application of concessions or other obligations under the
covered agreements. The United States affirmed that in such a situation, it would not assert that
Mexico was precluded from obtaining the DSB's au thorization on the grounds that the request was
made after the 30-day time-period specified in Article 22.6 of the DSU.
4
Mexico requested the establishment of a compliance panel, which was established on
22 January 2014. The compliance panel found that the amended tuna measure is inconsistent
with Article 2.1 of the TBT Agreement and Articles I:1 and III:4 of the General Agreement on
Tariffs and Trade 1994 (GATT 1994).
5 The Appellate Body report circulated to WTO Members on
20 November 2015 upheld the Panel's conclusions on Article 2.1 of the TBT Agreement and
Articles I:1 and III:4 of the GATT 1994.
6 On 3 December 2015, the DSB adopted the Article 21.5
Appellate Body report and the compliance panel report, as amended by the Appellate Body report.
Mexico's request under Article 22.2 of the DSU
Because the United States' Tuna measure is no t in compliance with the recommendations and
rulings of the DSB and is inconsistent with the covered Agreements, and in light of paragraph 6 of
the understanding reached between the Parties on Agreed Procedures under Articles 21 and 22 of
the DSU, Mexico is entitled to redress under Article 22 of the DSU.
In accordance with Article 22.2, Mexico reques ts authorization from the DSB to suspend the
application to the United States of tariff concessions and other related obligations in the goods
sector under GATT 1994 in an amount of USD $ 4 72.3 million annually. Mexico has applied the
principles and procedures of Article 22.3(a) of the DSU in considering what concessions and
obligations to suspend. As required by Articl e 22.4 of the DSU, the level of suspension of
concessions proposed by Mexico is equivalent on an annual basis to the level of the nullification or
impairment of benefits accruing to Mexico under the covered agreements due to the United States'
failure to bring its Tuna measure into compliance by 13 July 2013 or to otherwise comply with the
recommendations and rulings of the DSB in United States – Measures Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products.
Mexico will implement the suspension of tariff concessions and other related obligations by
imposing additional tariffs on a list of U.S. products to be established by Mexico in due course.