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U.S. Moves to Comply with WTO Ruling on Dolphin-Safe Tuna Labeling

Friday, April 05, 2013
By Shawn McCausland
Sandler, Travis & Rosenberg Trade Report

In an effort to comply with a May 2012 decision by the World Trade Organization’s Appellate Body against U.S. rules for labeling imported tuna as dolphin-safe, the National Marine Fisheries Service is proposing to make various amendments to its regulations under the Dolphin Protection Consumer Information Act. This proposed rule would modify the requirements for the certifications that must accompany the fisheries certificate of origin; change storage requirements related to dolphin-safe and non-dolphin-safe tuna on board fishing vessels; create new requirements for processors, other than tuna canners, of tuna product labeled dolphin-safe; and modify the reporting requirements associated with tracking domestic tuna canning and processing operations. Comments on this proposed rule are due no later than May 6.

NMFS prohibits tuna from being labeled as dolphin-safe if it is harvested (a) in the eastern tropical Pacific Ocean by purse seine vessels unless the captain and an observer certify that no dolphins were intentionally encircled with purse seine nets during the trip and no dolphins were killed or seriously injured during the sets in which the tuna were caught or (b) outside the ETP by purse seine vessels unless the captain certifies that no dolphins were intentionally encircled with purse seine nets during the trip in which the tuna were caught. Some years ago NMFS sought to weaken this standard with respect to the ETP, reportedly under pressure from Mexico and other Latin American countries that engage in tuna fishing operations in that region, so that tuna harvested by encircling them with purse seine nets could be labeled dolphin-safe as long as no dolphins were killed or seriously injured. Federal courts overturned this effort in 2004 and 2007, finding that it was based more on politics than scientific evidence. Mexico then took the issue to the WTO, where the Appellate Body determined that the U.S. rules are “not even-handed” because they address the adverse effects of setting on dolphins in the ETP but do not address the risks to dolphin mortality from other fishing methods in other areas.

While the Appellate Body decision was decried by some as improper interference in U.S. policymaking, it left the door open for the existing rules to remain in place if the U.S. modified them to address the risks to dolphins from all types of tuna fishing. That appears to be the aim of the NMFS proposal, which would expand the current certification requirement so that it applies to all tuna, not just tuna harvested by large purse seine vessels in the ETP. In addition, tuna caught in sets or other gear deployments designated as dolphin-safe would have to be stored separately from other tuna from the time of capture through unloading, and once offloaded would have to be loaded onto another conveyance or stored in such a way as to maintain and safeguard that identification. Any producer, importer, exporter, distributor or seller of tuna product labeled as dolphin-safe that does not meet the proposed standards would be subject to enforcement under section 5 of the Federal Trade Commission Act.

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