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 ESTABLISHMENT OF A PANEL
Document: Appellate Body Report
Date: 10 June 2016
Document codes: WT/DS381/38
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 THE ESTABLISHMENT 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.

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).

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 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 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 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 Recourse to Article 21.5 of the DSU by the United States, Constitution of the Panel, WT/DS381/37,
2 June 2016.

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.