USTR Requests Consultations With Mexico Over Endangered Vaquita Porpoise

The U.S. is seeking formal consultations over how Mexico is enforcing laws aimed at protecting the endangered vaquita porpoise and the prohibition on the sale of the totoaba fish, after other discussions did not produce enough progress, officials from the Office of the U.S. Trade Representative said. These consultations are under the environmental chapter of the USMCA, not the dispute settlement chapter, but if the countries were not able to reach a negotiated settlement, the U.S. could table a dispute that could ultimately lead to tariffs, if the panel ruled against Mexico.

A senior official from USTR, speaking on a call with reporters Feb. 10, said it was premature to look at the possibility of tariffs.

Deputy USTR Jayme White, whose portfolio includes the Americas, said that the U.S. will be looking "to achieve a negotiated cooperative resolution with Mexico, if possible," on how Mexico is preventing illegal fishing, illegal trade in fish and protecting the vaquita. “Barring a good outcome in these discussions, the USMCA contains additional tools we can use to address these concerns, if needed, hopefully not. I expect our teams to engage effectively with each other in the coming weeks to address these concerns to find a durable solution,” he said during the phone call with reporters.

Environmental non-governmental organizations asked last August for the USTR to initiate a dispute over the issue (see 2108130052), saying that while Mexico has promised to get illegal gillnets out of the vaquita's habitat, they have failed to do so.

The U.S. has already tried to compel better enforcement of fishing laws through a ban on imported fish from an area of the Upper Gulf of California in Mexico. The National Resources Defense Council won a ban on imported fish from that region in 2018 from the Court of International Trade (see 1808140013); the ban was later broadened by the National Marine Fisheries Service (see 2004220030).

A senior USTR official said that whatever settlement that might be reached wouldn't end the import ban. She said the ban is based on the Marine Mammal Protection Act. "That is a separate process and that is something that is run through" the National Oceanic and Atmospheric Administration, she said.

USTR said the request for consultation is a result of "careful analysis of available reporting and observations, in addition to engagement with other U.S. Government agencies, stakeholders, and the Government of Mexico on fishing activities in Mexico’s waters in the Upper Gulf of California." It said scientists estimate there are between six and 18 vaquita left in the world, but that the species could still recover in the wild if protected. "Incidental bycatch from prohibited gillnets, primarily set to catch shrimp and totoaba, is the primary cause of vaquita mortality. CITES prohibits commercial trade in both the vaquita and totoaba. While the vaquita is not traded, there is a high demand for the swim bladder of the totoaba, which is traded illicitly," USTR said.