*EPF409 04/13/00
Court Ruling Could Delay Change in Dolphin-Safe Tuna Labeling
(Decision undercuts lifting of embargo against Mexico) (800)
By Bruce Odessey
Washington File Staff Writer

Washington -- A federal court decision undercuts the lifting of a U.S. embargo on tuna from Mexico, according to Clinton administration officials.

The court decision, which rejects the Clinton administration's interpretation of a law to protect dolphins, could delay two years or more a change in definition for "dolphin-safe" labels on cans of tuna sold in U.S. markets, administration officials say.

The ruling by a U.S. district court in California could prove a source of irritation with Mexico and other parties to a multilateral agreement requiring strict conservation measures for dolphins during tuna harvest made in exchange for a U.S. commitment to change the label definition.

The U.S. Department of Commerce lifted a longtime embargo against tuna from Mexico just April 12.

That decision is likely to have little effect, however. Under the court ruling handed down April 11, the earlier label definition goes back into force, at least for now. Because Mexican tuna does not qualify as dolphin-safe under that earlier definition, U.S. canners are unlikely to import much, administration officials say.

In a related development, environmental and animal rights groups have asked the U.S. Court of International Trade in New York to issue a preliminary injunction against lifting of the embargo.

The judge in the New York court indicated she would rule the week of April 16 on granting the injunction.

At issue in these cases is the practice, long banned for U.S. boats, of fishermen setting nets on dolphins in the eastern tropical Pacific to harvest the yellowfin tuna that always travel with the dolphins.

Hundreds of thousands of dolphins were slaughtered this way each year until the U.S. Congress passed a law banning imports of yellowfin harvested by encirclement. U.S. law also allowed dolphin-safe labels to appear on tuna cans sold in U.S. markets for tuna that was not harvested by encirclement.

Mexico brought and won preliminary rulings against the U.S. law in the General Agreement on Tariffs and Trade (GATT) and the successor World Trade Organization (WTO).

In 1996 the United States and a number of harvesting countries made an agreement for reducing dolphin kills to near zero through safer encircling techniques enforced by onboard observers.

In exchange the United States agreed to change its definition of dolphin-safe to mean that the observer saw no dolphin killed or seriously injured in the harvest.

The agreement split the U.S. environmental community, but in 1997, after heated debate, Congress passed legislation implementing it. Secretary of Commerce William Daley effected the definition change just in February 2000.

U.S. District Court Judge Thelton Henderson in California ruled against Daley's decision, however. The judge's opinion said Daley acted before considering preliminary evidence from scientific research on the stress on dolphins from encirclement as mandated by the 1997 law.

The Commerce and Justice departments are considering whether to appeal the ruling.

Unless the ruling is stayed or overturned on appeal, administration officials say, compliance with the research mandate could delay the change in definition two years or more.

"The United States cannot unilaterally protect dolphins from fishing practices on the high seas," Daley said in an April 12 press release expressing disappointment with the ruling.

"The only incentive that the international fishing fleet has is access to our markets," he said. "If they can't sell their tuna here, they'll sell it to countries that do not require the same labeling standards.

"And the environmental groups that support us also understand this concern, saying that international problems demand international solutions," he said.

The department said that Daley acted on the best information available. According to the department's interpretation, the 1997 law required Daley to change the definition because the early research evidence did not demonstrate that encirclement caused harmful stress to dolphins.

The department said continuing research will inform the decision of the secretary of commerce on the final determination on changing the definition. That final determination is required under the law some time from July 2001 to December 2002.

The environmental groups that won the case hailed Judge Henderson's ruling.

"This is a tremendous rebuke to President Clinton, Vice President Gore, and the free-trade bureaucrats who sold out dolphin protections to accommodate a handful of foreign fishing companies who insist on killing dolphins in order to catch tuna," David Phillips of Earth Island Institute said in an April 11 press release.

Earth Island alleged that estimates of lower dolphin kills cited by the Clinton administration were "fabricated by observers who are either being bribed or intimidated aboard Mexican tuna vessels."

(The Washington File is a product of the Office of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
NNNN