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Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products

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Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products: Recourse to Article 21.5 of the DSU by Mexico (DS381) Comments of the United States of America on Responses of Mexico to the Questions Posed by the Panel September 26, 2014 TABLE OF ACRONYMS Acronym Full Name AIDCP Agreement on the International Dolphin Conservation Program CCSBT Commission for the Conservation of Southern Bluefin Tuna C.F.R. Code of Federal Regulations DML Dolphin Mortality Limit DPCIA Dolphin Protection Consumer Information Act DSB Dispute Settlement Body Understanding on Rules and Procedures Governing the Settlement of DSU Disputes GATT 1994 General Agreement on Tariffs and Trade 1994 EPO Eastern Pacific Ocean ETP Eastern Tropical Pacific Ocean EEZ Exclusive Economic Zone FAD Fish Aggregating Device FCO or Form 370 NOAA Fisheries Certificate of Origin IATTC Inter-American Tropical Tuna Commission ICCAT International Commission for the Conservation of Atlantic Tunas IDCP International Dolphin Conservation Program IOTC Indian Ocean Tuna Commission MT Metric Ton NMFS National Marine Fisheries Service NOAA National Oceanic and Atmospheric Administration United States – Measures Concerning the Importation, U.S. Comments on Responses to Questions Marketing and Sale of Tuna and Tuna Products: September 26, 2014 Recourse to DSU Article 21.5 by Mexico (DS381) Page ii PIROP Pacific Islands Regional Observer Program PBR Potential Biological Removal RFMO Regional Fishery Management Organization SPC Secretariat of the Pacific Community SPS Sanitary and Phytosanitary Agreement on the Application of Sanitary and Phytosanitary SPS Agreement Measures TRP Take Reduction Plan TBT Agreement Agreement on Technical Barriers to Trade TTF Tuna Tracking Form U.S.C. United States Code WCPFC Western and Central Pacific Fisheries Commission WCPO Western and Central Pacific Ocean WTO World Trade Organization United States – Measures Concerning the Importation, U.S. Comments on Responses to Questions Marketing and Sale of Tuna and Tuna Products: September 26, 2014 Recourse to DSU Article 21.5 by Mexico (DS381) Page iii TABLE OF REPORTS Short Title Full Citation Canada – Aircraft (Article Appellate Body Report, Canada – Measures Affecting the 21.5 – Brazil) (AB) Export of Civilian Aircraft – Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/AB/RW, adopted 4 August 2000 Chile – Price Band System Appellate Body Report, Chile – Price Band System and (Article 21.5 – Argentina) Safeguard Measures Relating to Certain Agricultural (AB) Products – Recourse to Article 21.5 of the DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007 EC – Hormones (AB) Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998 EC – Seal Products (AB) Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18 June 2014 Korea – Various Measures on Appellate Body Report, Korea – Measures Affecting Imports Beef (AB) of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001 Thailand – Cigarettes Appellate Body Report, Thailand – Customs and Fiscal (Philippines) (AB) Measures on Cigarettes from the Philippines, WT/DS371/AB/R, adopted 15 July 2011 US – Clove Cigarettes (AB) Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 24 April 2012 US – COOL (AB) Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 2012 US – Gambling (AB) Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005 US – Gasoline (AB) Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996 United States – Measures Concerning the Importation, U.S. Comments on Responses to Questions Marketing and Sale of Tuna and Tuna Products: September 26, 2014 Recourse to DSU Article 21.5 by Mexico (DS381) Page iv US – Line Pipe (AB) Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, WT/DS202/AB/R, adopted 8 March 2002 US – Shrimp (Article 21.5 – Appellate Body Report, United States – Import Prohibition of Malaysia) (AB) Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21 November 2001 US – Shrimp (Article 21.5 – Panel Report, United States – Import Prohibition of Certain Malaysia) (Panel) Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/RW, adopted 21 November 2001 US – Tuna II (Mexico) (AB) Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012 US – Tuna II (Mexico) (Panel) Panel Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, adopted 13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R US – Wool Shirts and Appellate Body Report, United States – Measure Affecting Blouses (AB) Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr. 1 United States – Measures Concerning the Importation, U.S. Comments on Responses to Questions Marketing and Sale of Tuna and Tuna Products: September 26, 2014 Recourse to DSU Article 21.5 by Mexico (DS381) Page v TABLE OF EXHIBITS Exhibit Description Number Karin A. Forney, SFSC, Estimates of Cetacean Mortality and Injury in Two U.S. 231 Pacific Longline Fisheries, 1994-2002 (2004) Council Regulation (EC) No. 520/2007, laying down technical measures for the 232 conservation of certain stocks of highly migratory species and repealing Regulation (EC) No. 973/2001 (May 7, 2007) 233 NOAA Description of the Swordfish Large Mesh Drift Gillnet Fishery High Seas Driftnet Fishing Moratorium Protection Act; Identification and Certification Procedures To Address Illegal, Unreported, and Unregulated Fishing 234 Activities and Bycatch of Protected Living Marine Resources, 76 Fed. Reg. 2011 (January 12, 2011) High Seas Driftnet Fishing Moratorium Protection Act; Identification and 235 Certification Procedures To Address Shark Conservation, 78 Fed. Reg. 3338 (January 16, 2013) 236 Identification and Certification of Nations, 50 C.F.R. 300 subpart N WTO Committee on Trade and Environment, Report of the Meeting Held on 13 237 November 2012, WT/CTE/M/54 (March 15, 2013) 238 Intentionally Omitted 239 WCPFC, Tuna Fishery Yearbook 2012 COMMENTS ON RESPONSES TO THE PANEL’S QUESTIONS Claims under Article 2.1 of the TBT Agreement and the GATT 1994 5. To both Parties: a. What factors should the panel take into account in assessing whether the amended tuna measure is "even-handed"? Does the "even-handedness" test require the Panel to engage in a quantitative cost-benefit analysis? 1. As discussed previously, a regulatory distinction will not be found to be even-handed if it disadvantages one group in favor of another without any basis for doing so, as evidenced by the Appellate Body’s analysis in this very dispute.1 2. Mexico thus errs when it argues that one of the most important factors of the even- handed analysis is “whether the discrimination can be reconciled with, or is rationally related to the relevant policy objective of the measure.”2 Mexico cannot cite to even one paragraph of any of the Appellate Body reports in US – Tuna II (Mexico), US – Clove Cigarettes, or US – COOL for support, nor can it provide any explanation as to why the Appellate Body has taken a position so different from Mexico’s approach.3 3. Moreover, Mexico is also wrong that “a lack of even-handedness can result where the measure in question exhibits an ambiguity that creates the potential for its abuse and misapplication.”4 There is nothing in the text, which refers to “treatment no less favorable,” that refers to “ambiguity,” let alone “abuse” or “misapplication.” Mexico simply is seeking to import into the text words that are not there, and this is something the Appellate Body has explicitly stated cannot be done – “as we have said more than once, words must not be read into the Agreement that are not there.”5 Indeed, this is another instance in which Mexico seeks to have the Panel take on the role of the regulator and decide de novo whether the Panel would have preferred a particular, different regulatory approach. But that is not the role of a panel, and Mexico errs legally in urging this approach. b. Are the terms "calibrated" and "even-handed" synonymous? 1 U.S. Response to Question 5(a), paras. 20-29; U.S. Second Written 21.5 submission, paras. 79-85; U.S. First Written 21.5 Submission, paras. 182-184. 2 Mexico’s Response to Question 5(a), para. 4 (internal quotes omitted). 3 In any event, the United States has fully explained why the requirements of the amended measure is rationally related to its objective regarding the protection of dolphins. See U.S. Second Written 21.5 Submission, paras. 212-218. 4 Mexico’s Response to Question 5(a), para. 4. 5 US – Line Pipe (AB), para. 250 (citing various reports). United States – Measures Concerning the Importation, U.S. Comments on Responses to Questions Marketing and Sale of Tuna and Tuna Products: September 26, 2014 Recourse to DSU Article 21.5 by Mexico (DS381) Page 2 4. As the United States has explained, the United States used the term “calibrated” in the original proceeding to mean something akin to the term “narrowly tailored.”6 That is to say, the United States tailored the eligibility requirements for the label to the conditions prevailing in the relevant fishery, based in particular on the fact that there was a great amount of harm to dolphins inside the ETP and substantially less harm outside the ETP.
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