NOAA Applies Strict Dolphin-Safe Tuna Importer Labeling Requirements to All Tuna
The National Oceanic and Atmospheric Administration imposed tougher certification requirements on dolphin-safe tuna importers in a July 9 final rule. The new requirements are being put in place to implement an adverse World Trade Organization decision from May 2012 that found U.S. dolphin-safe tuna labeling regulations discriminate against Mexican tuna products. Beginning on the rule’s July 13 effective date, NOAA will require all tuna labeled as dolphin-safe to meet strict “captain’s statement” requirements that were formerly applicable only to tuna caught in the Eastern Tropical Pacific region. Fisheries Certificate of Origin (FCO) accompanying tuna imports will accordingly have to reflect the new certifications for the tuna to be labeled dolphin-safe. The new requirements will not apply to tuna caught on fishing trips that began before July 13.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
Tuna From Latin American Coast Faced Special Requirements
Standards for labeling tuna as dolphin-safe were first established in a 1990 law meant to combat tuna fishing practices in the Eastern Tropical Pacific that “frequently killed” dolphins. For Commerce Department purposes, the Eastern Tropical Pacific encompasses an area between California and Chile, and west to about Hawaii. In that region, Yellowtail tuna swim together with dolphins, so fishermen would follow the dolphins and use the “purse seine fishing” technique to surround with the schools of tuna with nets and catch the tuna and dolphin together. The practice resulted in the suffocation of the dolphins when they were unable to come up for air.
Under current regulations, in order for tuna caught using large purse seine vessels in the Eastern Tropical Pacific to be labeled as dolphin safe, it must be accompanied by a captain’s statement and an observer’s statement that no dolphins were intentionally encircled with nets during the trip and no dolphins were killed or seriously injured. For tuna caught by purse seine vessels outside the Eastern Tropical Pacific, the captain’s statement only need to say no dolphins were intentionally encircled. But In June 2012, the World Trade Organization said U.S. dolphin-safe tuna labeling regulations violate the principle of national treatment, because they focus on a specific method of tuna fishing used in the Eastern Tropical Pacific, to the exclusion of other types of tuna fishing used elsewhere that may harm the fish (see 12051633).
NOAA Applies Stringent Standards Elsewhere
Rather than loosen requirements for Eastern Tropical Pacific tuna, NOAA will attempt to comply with the WTO ruling by tightening requirements elsewhere. To be labeled as dolphin-safe, all imported tuna will now have to be accompanied by an FCO that includes a certification from the captain (and an observer if applicable) that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught. And imported tuna caught using purse seine vessels outside the Eastern Tropical Pacific will require a captain’s (and possibly observer’s) certification that no dolphins were killed or seriously harmed. Requirements for Eastern Tropical Pacific tuna will remain in place. So in effect, the new regulations harmonize requirements for dolphin-safe labeling to require certifications for all tuna that no dolphins were injured or seriously harmed, and that dolphins were not intentionally encircled by purse seine nets if that method was used.
The final rule also mandates dolphin-safe and non-dolphin safe tuna be stored separately. The storage requirement would apply not only to vessels, but also to trucks, storage facilities, and carrier vessels.
Mexico Said Proposal Didn’t Comply; No Substantial Changes
The Mexican government did not immediately comment on the NOAA’s new dolphin-safe requirements. But in comments on the proposed rule, which was finalized mostly unchanged, Mexico said the new dolphin-safe labeling requirements would not bring the U.S. into compliance. “The United States could have sought amendments to the statute that would have given consumers more information and allowed them to decide for themselves which tuna products are really dolphin-safe and sustainable for the environment,” Mexico said in May. “Instead, the proposed rule perpetuates the already-existing problems with the current statute and regulations,” it said. “Mexico is analyzing all the available legal mechanisms to achieve effective compliance … and an appropriate remedy that provides to the Mexican producers the same conditions of competition as the United States provides to its own producers and to producers from third countries,” it had said.