Section 337 of the Tariff Act of 1930: A Private Right-of-Action to Enforce Ocean Wildlife Conservation Laws?

• Date: 01 May 2010

5-2010 NEWS & ANALYSIS 40 ELR 10513

Section 337 of the

Tariff Act of 1930:

A Private Right-of-

Action to Enforce

Ocean Wildlife

Conservation

Laws?

by Jonathan J. Engler

Jonathan J. Engler is a counsel with Adduci Mastriani &

Schaumberg, LLP, an international trade law rm based in

Washington, D.C. He can be reached at engler@adduci.com.

Editors’ Summary

e Tari Act of 1930, one of the oldest U.S. interna-

tional trade statutes, has untapped potential to extend

the reach of U.S. environmental conservation laws.

Section 337 of the Act creates a private right-of-action

against imported goods produced or traded using

“unfair” methods as dened under U.S. domestic law.

Today, §337 is used primarily by technology compa-

nies to ght the importation of goods found to infringe

valid U.S. patents. But Congress always intended for

§337 to have broader application. For example, on the

environmental front, §337 would be a powerful weapon

in banning the importation of sh caught in interna-

tional waters using unsustainable shing methods that

are barred under U.S. law.

I. The Scenario

Imagine the following scenario:

A group of U.S. tuna shermen nd themselves at risk of

losing their livelihood, due in large pa rt to their compliance

with U.S. environmental laws. e shermen are obliged

to abide by U.S. regu lations that restrict the use of specic

shing practices which are very harmful to dolphins and

other marine species—when shing for bigeye tuna in inter-

national waters. e problem is that many shing eets in

other Pacic countries, often shing in international waters,

are not limited by these restrictions. Consequently, imported

tuna, caught using unfair a nd ecologically dama ging meth-

ods, enters the United States at prices far below those that

the U.S. shing eet can aord to charge, given compliance

with U.S. regu lation. ese imports of cheap tuna threaten

to destroy the U.S. tuna shing industry.

e U.S. tuna shermen, however, decide to ght back.

On behalf of an existing regional Tuna Cooperative, to which

they all belong, the  shermen bring a complaint to the U.S.

International Trade Commission (USITC) in Washington,

D.C. In that complaint, the Tuna Cooperative, joined by an

array of oceans conservation NGOs acting as friends of the

court, states that their industry is being injured by the unfair

acts of foreign tuna shing eets, which catch sh using spe-

cically identied environmentally harmful methods. e

complaint is accompanied by documents, adavits, and

other evidence that foreign eets are engaging in destructive

shing practices that are banned under U.S. law. e Tuna

Cooperative also submits, under seal, condential pricing

data that shows that the unfairly caught tuna is undercutting

the Cooperative’s prices and causing substantial nancial

distress. As relief, the Tuna Cooperative requests a general

exclusion order from the USITC, banning t he importation

of all tuna shipments—from whatever source—that cannot

demonstrate that they were c aught using sustainable meth-

ods. As defendants, the Tuna Cooperative names numer-

ous Asian companies that it believes to be engaging in these

unsustainable tuna shing methods in international waters.

e USITC reviews the Cooperative’s complaint and deter-

mines to initiate an investigation.

For the next 15 months, the Tuna Cooperative’s case

is litigated before an administrative law judge in a highly

publicized tria l. e Tuna Cooperative, assisted by numer-

ous national and international environmental organizations,

using live witnesses, physical evidence, and expert reports,

demonstrates t hat the defendants have engaged in a range

of unfair and ecologically devastating shing practices. e

defendants, particularly Japanese eets, backed by deep-

pocketed industrial shing interests, ght back in what

becomes a morality play about the intersection of money and

environmental degradation. e Tuna Cooperative, a long

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