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U.S. Modifies Dolphin-Safe Tuna Labeling Rules; Change Could Avoid Mexico Sanctions

Wednesday, March 23, 2016
Sandler, Travis & Rosenberg Trade Report

The Department of Commerce’s National Marine Fisheries Service has issued an interim final rule revising its regulations concerning dolphin-safe labels on tuna products to bring the U.S. into compliance with its obligations as a member of the World Trade Organization. The rule appears to be an attempt to avoid the $472 million in sanctions Mexico is seeking WTO authorization to impose (in the form of higher duties on an as yet unidentified list of U.S. exports) after a WTO compliance panel found that U.S. dolphin-safe tuna labeling regulations revised in 2013 are still inconsistent with WTO rules.

The interim final rule took effect March 22 because NMFS said any delay could adversely affect the ability of the U.S. to respond to Mexico’s sanctions request. However, NMFS is accepting comments on the rule through April 22 and will consider any comments received before issuing a final rule. The WTO is scheduled to consider Mexico’s retaliation request March 23.

NMFS states that this interim final rule will enhance the requirements for documentation that demonstrates the accuracy of dolphin-safe labels on tuna products as follows.

Certification. NMFS has the authority to require, as a condition for labeling tuna product as dolphin-safe, that an onboard observer (in addition to the captain) certify that the tuna was caught in a manner that meets the dolphin-safe labeling requirements where NMFS has determined that a fishery has a regular and significant association between dolphins and tuna (similar to that found in the eastern tropical Pacific Ocean) and/or has a regular and significant mortality or serious injury of dolphins. This expanded authority applies equally to purse seine and other gear-type tuna fisheries other than the ETP large purse seine fishery (where an observer certificate is already required) and large-scale driftnet fisheries (which produce tuna that is ineligible for the dolphin-safe label).

When NMFS makes a determination that a tuna fishery has either a regular and significant association with dolphins or a regular and significant mortality or serious injury of dolphins it will also require a government certificate validating the catch documentation, whether the tuna or tuna products meet the dolphin-safe labeling standards, and the chain of custody information reported to the U.S. government or maintained by the importer of record or the U.S. processor, as applicable.

Use of Fishing Gear on Dolphins. Captains of all vessels in fisheries other than the ETP large purse seine fishery or a large-scale driftnet fishery must certify that no purse seine net or other fishing gear was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught and that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught. This revision makes clear that tuna does not meet the dolphin-safe standard if it is harvested by vessels that intentionally deploy fishing gear (regardless of the type) on dolphins. This revised certification will apply to tuna caught by a vessel on a fishing trip that begins on or after May 21.

Training. Captains of vessels operating in “other fisheries” must certify completion of an NMFS Tuna Tracking and Verification Program dolphin-safe training course. This requirement applies to all tuna product labeled dolphin-safe if it contains tuna harvested on a fishing trip that begins on or after May 21.

Chain of Custody. U.S. processors and importers of record must collect and retain for two years information on each point in the chain of custody regarding the shipment of the tuna or tuna product to the point of entry into U.S. commerce. Such information would include records regarding each custodian of the tuna or tuna product; e.g., transshippers, processors, storage facilities and wholesalers/distributors. The information must be maintained at the place of business or be accessible from that place of business through, for example, an Internet connection to an off-site server. It must be provided to NMFS upon request and be sufficient for NMFS to conduct a trace back to verify that the tuna product certified as dolphin-safe does in fact meets the dolphin-safe labeling requirements. NMFS expects that typical supply chain records that are kept in the normal course of business would meet this criterion.

In addition, the information maintained must be sufficient to trace any non-dolphin-safe tuna loaded onto the vessel back to one or more storage wells or other storage locations for a particular fishing trip to prove that such non-dolphin-safe tuna was kept physically separate from dolphin-safe tuna through unloading.

These chain of custody requirements will apply to all tuna product labeled dolphin-safe if the product contains tuna harvested on a fishing trip that begins on or after May 21.

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