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 CONSULTATIONS
Document: Appellate Body Report
Date: 19 May 2016
Document codes: WT/DS381/36
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
SECOND RECOURSE TO ARTICLE 21.5 OF THE DSU BY MEXICO
REQUEST FOR CONSULTATIONS
The following communication, dated 13 May 2016, from the delegation of Mexico to the delegation
of the United States and to the Chairperson of the Dispute Settlement Body, is circulated in
accordance with Article 21.5 of the DSU.

My authorities have instructed me to request consultations with the Government of the
United States ("United States") concerning th e most-recently amended Tuna Measure (the "2016
Tuna Measure") under Articles 21.5 and 4 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 XXII of the General Agreement on Tariffs and Trade, 1994
("GATT 1994").
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 U.S.
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 2013,
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 agreement of measures taken to

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).

comply with the recommendations and rulings" of the DSB in the dispute. On 15 November 2013,
Mexico therefore requested the establishment of an Article 21.5 panel on the basis that the 2013
Final Rule was inconsistent with Article 2.1 of the TBT Agreement 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 conce ssions, 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 Measure with the United States' obligations under
the TBT Agreement and the GATT 1994.
12 The United States' request was referred to the panel at
the 9 May 2016 meeting of the DSB.13
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.
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.
Mexico considers that the United States has failed to implement the DSB's recommendations
and rulings and that the 2016 Tuna Measure is inconsistent with the covered agreements:
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

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 the 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 Daily bulletin, WT/DAILYB(16)/36, 10 May 2016, and Proposed Agenda for the 9 May 2016 DSB
Meeting, WT/DSB/W/568, 4 May 2016.

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 United States' origin in respect of all laws, regulations and
requirements affecting their internal sale, offering for sale, purchase, transportation,
distribution or use.
We look forward to receiving your reply to this request and to fixing a mutually convenient
date for consultations.