Chapter IH — Marine Mammal-Fisheries Interactions 



injunctions. Those preliminary injunctions concerned 

 domestic observer coverage (issued on 18 January 

 1989), 1989 foreign comparability findings (issued 28 

 August 1990), the 1990 reconsideration of the compa- 

 rability finding for Mexico (issued 19 October 1990), 

 and the 1990 foreign comparability findings (issued 26 

 March 1991). On 26 August 1991, plaintiffs fUed 

 another motion seeking (1) to compel the National 

 Marine Fisheries Service to issue regulations to 

 implement the Dolphin Protection Consumer Informa- 

 tion Act's ban on importing tuna and other fish 

 products harvested with large-scale driftnets and (2) to 

 broaden the scope of the intermediary nation tuna 

 embargoes that had been implemented by the Service 

 under the Marine Manmial Protection Act. 



The Court ruled on the motion to convert the 

 preliminary injunctions to permanent injunctions and 

 on the motion to compel issuance of regulations in a 

 13 November 1991 order. All of the preliminary 

 injunctions were converted into permanent injunctions. 

 Under the Dolphin Protection Consumer Information 

 Act, the Service was required to issue implementing 

 regulations by 28 May 1991. While these regulations 

 had not been issued when the plaintiffs filed their 

 motion on 26 August 1991, the Service issued final 

 interim regulations on 12 September 1991 . The Court 

 found the interim regulations sufficient to satisfy the 

 requirements of the Act and denied plaintiffs motion. 



Other than the matter of attorneys' fees, the only 

 issue in the case pending at the end of 1991 was the 

 breadth of the secondary embargoes required under 

 the intermediary nation provision of the Marine 

 Mammal Protection Act. Section 101(a)(2)(C) of the 

 Act requires that tuna imports from intermediary 

 nations be embargoed unless the government of the 

 intermediary nation that exports yellowfin tuna or tuna 

 products to the United States certifies that it has acted, 

 within 60 days of a U.S. embargo, to prohibit the 

 importation of such tuna from those nations that are 

 banned from directly exporting tuna to the United 

 States. Plaintiffs assert that a secondary embargo 

 under section 101(a)(2)(C) is broader than the under- 

 lying primary embargo and applies to all yellowfin 

 tuna and tuna products. Plaintiffs also maintain that 

 the Secretary of the Treasury is not obtaining the 

 required certifications from all intermediary nations 

 before allowing tuna from those nations to be import- 

 ed into the United States. The Service contends that 



the scope of the secondary embargo is the same as the 

 scope of the primary import ban. That is, a second- 

 ary embargo applies only to yellowfin tuna harvested 

 by embargoed fishing nations with purse seine nets in 

 the eastern tropical Pacific. Oral argument on this 

 issue was heard on 23 September 1991 . A decision is 

 expected early in 1992. 



General Agreement on Tariffs and Trade 



The General Agreement on Tariffs and Trade 

 (GATT) is an international agreement that sets forth 

 limitations on the use of international trade restric- 

 tions, such as taxes, duties, quotas, or unnecessarily 

 restrictive standards. The agreement was originally 

 drafted in 1947 and currently has over 100 contracting 

 parties, including the United States. Trade disputes 

 that may arise between contracting parties are settled 

 either by consultations between the parties or, if 

 consultations prove unsuccessfiil, by referral to a 

 formal dispute panel. 



On 5 November 1990, Mexico requested consulta- 

 tions with the United States concerning the imposition 

 of tuna import restrictions under the Marine Mammal 

 Protection Act. Consultations were held on 19 

 December, but failed to resolve the dispute. On 25 

 January 1991, Mexico requested that a panel be 

 established under the General Agreement to resolve 

 the dispute. 



The panel met three times in May and June 1991 

 to hear arguments from Mexico and the United States, 

 as well as from other interested parties. Mexico 

 asserted not only that the Marine Manmial Protection 

 Act's embargo provisions were inconsistent with the 

 General Agreement, but also challenged the possible 

 broadening of trade sanctions under the Pelly Amend- 

 ment, the intermediary nation tuna embargoes, and the 

 tuna labeling provisions of the Dolphin Protection 

 Consumer Information Act. 



The panel delivered its decision to the GATT 

 contracting parties on 3 September 1991. The panel 

 found the U.S. embargo of Mexican tuna to be 

 inconsistent with the General Agreement. The panel 

 rejected the U.S. position that the embargo was 

 consistent with General Agreement Article HI because 

 the Marine Mammal Protection Act constituted an 

 internal measure that treated foreign caught tuna no 



107 



