Green_Earth
United States - Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina - Report of the Panel
日期:2015/07/24
作者:The Panel
文件編號:WT/DS447/R
附件下載:WTDS447R.doc
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UNITED STATES – MEASURES AFFECTING THE IMPORTATION
OF ANIMALS, MEAT AND OTHER ANIMAL PRODUCTS
FROM ARGENTINA

report of the panel

 

 


TABLE OF CONTENTS

 

1           Introduction........................................................................................................ 20

1.1         Complaint by Argentina............................................................................................... 20

1.2         Panel establishment and composition........................................................................ 20

1.3         Panel proceedings....................................................................................................... 20

1.3.1      General....................................................................................................................... 20

1.3.2      Consultation of experts............................................................................................... 21

1.3.2.1   Expert selection.......................................................................................................... 22

2           Factual aspects................................................................................................... 24

2.1         The relevant disease: Foot-and-mouth disease (FMD)................................................ 24

2.2         The measures at issue................................................................................................ 25

2.2.1      Prohibition on importation of fresh (chilled or frozen) beef from Northern Argentina and animals, meat and other animal products from the Patagonia region................................................ 25

2.2.1.1   Title 9 of the Code of Federal Regulations, Part 94...................................................... 25

2.2.1.2   APHIS' 2001 Interim and Final Rules amending 9 CFR 94............................................ 27

2.2.2      The United States' alleged undue delay in the application of the procedures set forth in 9 CFR 92.2 to Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as free from FMD.................................................................. 27

2.2.2.1   Section 737 of the 2009 Omnibus Appropriations Act................................................. 29

2.3         Products at issue........................................................................................................ 30

2.4         Relevant international standards, guidelines, and recommendations......................... 30

2.4.1      The OIE and its mandate............................................................................................. 30

2.4.2      The Terrestrial Code.................................................................................................... 31

2.4.2.1   Objectives and structure of the Terrestrial Code......................................................... 31

2.4.2.2   Official recognition of disease status........................................................................... 32

2.4.3      Relevant standards, guidelines or recommendations invoked by the parties............. 33

2.5         The parties' domestic FMD situations.......................................................................... 34

2.5.1      Argentina.................................................................................................................... 34

2.5.1.1   Northern Argentina..................................................................................................... 35

2.5.1.2   Patagonia.................................................................................................................... 35

2.5.2      United States.............................................................................................................. 35

3           Parties' requests for findings and recommendations.......................... 35

4           Arguments of the parties................................................................................. 37

5           Arguments of the thiRd parties..................................................................... 37

6           Interim review..................................................................................................... 37

6.1         Whether APHIS' review processes of Argentina's requests were undertaken and completed without undue delay................................................................................................................ 37

6.2         The United States' appropriate level of protection for foot-and-mouth disease.......... 40

6.3         Whether the United States took into account the objective of minimizing negative trade effects when determining its appropriate level of sanitary protection.............................................. 41

6.4         Whether the United States' measures are more trade-restrictive than required to achieve the United States' ALOP..................................................................................................... 42

6.5         Special and differential treatment............................................................................... 43

6.6         Argentina's claims under the GATT 1994..................................................................... 44

7           Findings................................................................................................................. 44

7.1         Order of analysis......................................................................................................... 44

7.1.1      Main arguments of the parties.................................................................................... 45

7.1.2      Analysis by the Panel................................................................................................... 45

7.2         Whether the United States' measures are SPS measures.......................................... 48

7.2.1      Relevant legal provisions............................................................................................. 48

7.2.2      Main arguments of the parties.................................................................................... 48

7.2.2.1   Argentina.................................................................................................................... 48

7.2.2.2   United States.............................................................................................................. 49

7.2.3      Analysis by the Panel................................................................................................... 50

7.2.3.1   Whether the United States' measures are SPS measures within the meaning of Annex A(1)   50

7.2.3.2   Whether the United States' measures directly or indirectly affect international trade 52

7.2.4      Conclusion.................................................................................................................. 53

7.3         Control, inspection and approval procedures.............................................................. 53

7.3.1      Relevant legal provisions............................................................................................. 53

7.3.2      Whether the application of the procedures set forth in 9 CFR 92.2 to Argentina's requests falls within the scope of Article 8 and Annex C(1) of the SPS Agreement..................................... 54

7.3.2.1   Main arguments of the parties.................................................................................... 54

7.3.2.2   Main arguments of the third parties............................................................................ 55

7.3.2.3   Analysis by the Panel................................................................................................... 56

7.3.3      Whether APHIS' review processes of Argentina's requests were undertaken and completed without undue delay................................................................................................................ 59

7.3.3.1   General arguments of the parties............................................................................... 59

7.3.3.2   APHIS' review of Argentina's request for imports of fresh (chilled or frozen) beef from Northern Argentina.................................................................................................................... 60

7.3.3.3   APHIS' review of Argentina's request for recognition of Patagonia as FMD‑free........... 63

7.3.3.4   Main arguments of the third parties............................................................................ 66

7.3.3.5   Analysis by the Panel................................................................................................... 67

7.3.4      Whether APHIS' review processes of Argentina's requests met the procedural requirements set forth in Annex C(1)(b) of the SPS Agreement...................................................................... 89

7.3.4.1   Arguments of the parties............................................................................................ 89

7.3.4.2   Main arguments of the third parties............................................................................ 90

7.3.4.3   Analysis by the Panel................................................................................................... 91

7.4         Harmonization............................................................................................................. 94

7.4.1      Relevant legal provisions............................................................................................. 94

7.4.2      Whether the United States' measures are based on relevant international standards, guidelines or recommendations...................................................................................................... 95

7.4.2.1   Main arguments of the parties.................................................................................... 95

7.4.2.2   Main arguments of the third parties............................................................................ 98

7.4.2.3   Analysis by the Panel................................................................................................. 100

7.4.3      Whether the United States' measures are introduced or maintained consistently with Article 3.3................................................................................................................................. 110

7.5         Whether the United States' measures are based on scientific principles and maintained with sufficient scientific evidence.................................................................................................... 111

7.5.1      Relevant legal provisions........................................................................................... 111

7.5.2      Whether the United States' measures fall within the scope of the exemption in Article 5.7     113

7.5.2.1   Main arguments of the parties.................................................................................. 113

7.5.2.2   Main arguments of the third parties.......................................................................... 116

7.5.2.3   European Union........................................................................................................ 118

7.5.2.4   Analysis by the Panel................................................................................................. 119

7.5.2.5   Conclusion................................................................................................................ 122

7.5.3      Whether the United States' measures are based on a risk assessment................... 122

7.5.3.1   Main arguments of the parties.................................................................................. 122

7.5.3.2   Main arguments of the third parties.......................................................................... 124

7.5.3.3   Analysis by the Panel................................................................................................. 125

7.5.4      Article 2.2 of the SPS Agreement.............................................................................. 131

7.5.4.1   Main arguments of the parties.................................................................................. 131

7.5.4.2   Main arguments of the third parties.......................................................................... 133

7.5.4.3   Analysis by the Panel................................................................................................. 133

7.6         Appropriate level of protection.................................................................................. 134

7.6.1      Relevant legal provisions........................................................................................... 134

7.6.2      The United States' appropriate level of protection for foot-and-mouth disease........ 135

7.6.2.1   Main arguments of the parties.................................................................................. 135

7.6.2.2   Analysis by the Panel................................................................................................. 137

7.6.3      Whether the United States took into account the objective of minimizing negative trade effects when determining its appropriate level of sanitary protection............................................ 140

7.6.4      Main arguments of the parties.................................................................................. 140

7.6.4.1   Argentina.................................................................................................................. 140

7.6.4.2   United States............................................................................................................ 140

7.6.5      Main arguments of the third parties.......................................................................... 141

7.6.5.1   Australia.................................................................................................................... 141

7.6.5.2   European Union........................................................................................................ 141

7.6.6      Analysis by the Panel................................................................................................. 141

7.6.6.1   Conclusion................................................................................................................ 143

7.6.7      Whether the United States' measures are more trade-restrictive than required to achieve the United States' ALOP................................................................................................... 144

7.6.7.1   Relevant legal provisions........................................................................................... 144

7.6.7.2   Main arguments of the parties.................................................................................. 144

7.6.7.3   Main arguments of the third parties.......................................................................... 148

7.6.7.4   Analysis by the Panel................................................................................................. 149

7.7         Whether the United States' measures arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail or are applied in a manner which constitutes a disguised restriction on international trade............................................................................... 181

7.7.1      Relevant legal provisions........................................................................................... 181

7.7.2      Main arguments of the parties.................................................................................. 182

7.7.2.1   Argentina.................................................................................................................. 182

7.7.2.2   United States............................................................................................................ 184

7.7.3      Main arguments of the third parties.......................................................................... 186

7.7.3.1   China......................................................................................................................... 186

7.7.3.2   European Union........................................................................................................ 187

7.7.4      Analysis by the Panel................................................................................................. 187

7.7.4.1   Discrimination between Northern Argentina and Uruguay......................................... 190

7.7.4.2   Discrimination between Patagonia, Santa Catarina, and Chile.................................... 194

7.7.4.3   Discrimination between Northern Argentina, Patagonia, Japan, and the United Kingdom. 197

7.8         Adaptation to regional conditions.............................................................................. 199

7.8.1      Relevant legal provisions........................................................................................... 199

7.8.2      Main arguments of the parties.................................................................................. 200

7.8.2.1   Argentina.................................................................................................................. 200

7.8.2.2   United States............................................................................................................ 201

7.8.3      Main arguments of the third parties.......................................................................... 202

7.8.3.1   Brazil......................................................................................................................... 202

7.8.3.2   European Union........................................................................................................ 203

7.8.4      Analysis by the Panel................................................................................................. 203

7.8.4.1   The obligations under Article 6.1............................................................................... 203

7.8.4.2   The obligations under Article 6.2............................................................................... 204

7.8.4.3   The obligations under Article 6.3............................................................................... 205

7.8.4.4   The relationship between the obligations contained in the three paragraphs of Article 6  206

7.8.4.5   Whether the United States recognized the concept of FMD‑free areas and adapted its measure to the SPS characteristics of Patagonia................................................................................ 209

7.9         Special and differential treatment............................................................................. 211

7.9.1      Relevant legal provisions........................................................................................... 211

7.9.2      Main arguments of the parties.................................................................................. 211

7.9.2.1   Argentina.................................................................................................................. 211

7.9.2.2   United States............................................................................................................ 212

7.9.3      Main arguments of the third parties.......................................................................... 212

7.9.3.1   China......................................................................................................................... 212

7.9.3.2   European Union........................................................................................................ 213

7.9.4      Analysis by the Panel................................................................................................. 213

7.9.4.1   Whether Article 10.1 is a positive obligation............................................................. 213

7.9.4.2   Shall take account of special needs of developing country Members....................... 214

7.9.4.3   Burden of proof......................................................................................................... 215

7.9.4.4   Whether the United States took account of Argentina's special needs..................... 217

7.9.4.5   Conclusion................................................................................................................ 219

7.10       Consequential violations........................................................................................... 219

7.10.1    Argentina's claims under Article 1.1 of the SPS Agreement...................................... 219

7.10.1.1 .................................................................................................. Relevant legal provision  219

7.10.1.2 ........................................................................................ Main arguments of the parties  219

7.10.1.3 ................................................................................ Main arguments of the third parties  220

7.10.1.4 ...................................................................................................... Analysis by the Panel  220

7.10.2    Argentina's claims under Article 3.3 of the SPS Agreement...................................... 220

7.11       Argentina's claims under the GATT 1994................................................................... 221

7.11.1    Main arguments of the parties.................................................................................. 221

7.11.1.1 ........................................................................................................................ Argentina  221

7.11.1.2 .................................................................................................................. United States  222

7.11.2    Analysis by the Panel................................................................................................. 222

8           Conclusions and Recommendation(s)........................................................ 223

APPENDIX 1.......................................................................................................................... 226


ANNEX A

Working Procedures of The Panel

Contents

Page

Annex A-1

Working Procedures of the Panel

A-2

Annex A-2

Additional Working Procedures on consultations with experts and the World Organisation for Animal Health (OIE)

A-7

ANNEX B

Arguments Of The Parties

ARGENTINA

Contents

Page

Annex B-1

First part of the integrated executive summary of the arguments of Argentina

B-2

Annex B-2

Second part of the integrated executive summary of the arguments of Argentina

B-14

 

 

UNITED STATES

Contents

Page

Annex B-3

First part of the integrated executive summary of the arguments of the United States

B-25

Annex B-4

Second part of the integrated executive summary of the arguments of the United States

B-37

ANNEX C

Arguments of the Third Parties

Contents

Page

Annex C-1

Integrated executive summary of the arguments of Australia

C-2

Annex C-2

Integrated executive summary of the arguments of Brazil

C-6

Annex C-3

Integrated executive summary of the arguments of China

C-9

Annex C-4

Integrated executive summary of the arguments of the European Union

C-13

 


CASES CITED IN THIS REPORT

Short Title

Full Case Title and Citation

Australia – Apples

Appellate Body Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010, DSR 2010:V, p. 2175

Australia – Apples

Panel Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/R, adopted 17 December 2010, as modified by Appellate Body Report WT/DS367/AB/R, DSR 2010:VI, p. 2371

Australia – Salmon

Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327

Australia – Salmon

Panel Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by Appellate Body Report WT/DS18/AB/R, DSR 1998:VIII, p. 3407

Australia – Salmon
(Article 21.5 – Canada)

Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, p. 2031

Brazil – Aircraft

Panel Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, DSR 1999:III, p. 1221

Brazil – Desiccated Coconut

Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167

Brazil – Retreaded Tyres

Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527

Brazil – Retreaded Tyres

Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body Report WT/DS332/AB/R, DSR 2007:V, p. 1649

Canada – Aircraft

Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1377

Canada – Autos

Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 2000:VI, p. 2985

Canada – Continued Suspension

Appellate Body Report, Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008, DSR 2008:XIV, p. 5373

Canada – Continued Suspension

Panel Report, Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/R, adopted 14 November 2008, as modified by Appellate Body Report WT/DS321/AB/R, DSR 2008:XV, p. 5757

Canada – Dairy
(Article 21.5 – New Zealand and US II)

Panel Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/RW2, WT/DS113/RW2, adopted 17 January 2003, as modified by Appellate Body Report WT/DS103/AB/RW2, WT/DS113/AB/RW2, DSR 2003:I, p. 255

Canada – Pharmaceutical Patents
(Article 21.3(c))

Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical Products – Arbitration under Article 21.3(c) of the DSU, WT/DS114/13, 18 August 2000, DSR 2002:I, p. 3

Canada – Renewable Energy /
Canada – Feed-in Tariff Program

Appellate Body Reports, Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013

Canada – Wheat Exports and Grain Imports

Appellate Body Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004, DSR 2004:VI, p. 2739

China – Broiler Products

Panel Report, China - Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R and Add.1, adopted 25 September 2013

China – GOES

Appellate Body Report, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/AB/R, adopted 16 November 2012, DSR 2012:XII, p. 6251

China – GOES

Panel Report, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/R and Add.1, adopted 16 November 2012, upheld by Appellate Body Report WT/DS414/AB/R, DSR 2012:XII, p. 6369

China – Publications and Audiovisual Products

Panel Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261

China – Raw Materials

Appellate Body Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295

Dominican Republic – Import and Sale of Cigarettes

Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19 May 2005, DSR 2005:XV, p. 7367

EC – Approval and Marketing of Biotech Products

Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R / WT/DS292/R / WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847

EC – Asbestos

Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos‑Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 3243

EC – Bananas III

Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, p. 591

EC – Bananas III (Ecuador)

Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Ecuador, WT/DS27/R/ECU, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:III, p. 1085

EC – Bananas III (Guatemala and Honduras)

Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Guatemala and Honduras, WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 695

EC – Bananas III (Mexico)

Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Mexico, WT/DS27/R/MEX, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 803

EC – Bananas III (US)

Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by the United States, WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 943

EC – Chicken Cuts

Appellate Body Report, European Communities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157

EC – Fasteners (China)

Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, adopted 28 July 2011, DSR 2011:VII, p. 3995

EC – Hormones

Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, p. 135

EC – Hormones (Canada)

Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, WT/DS48/R/CAN, adopted 13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, p. 235

EC – Hormones (US)

Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, WT/DS26/R/USA, adopted 13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:III, p. 699

EC – Hormones (Article 21.3(c))

Award of the Arbitrator, EC Measures Concerning Meat and Meat Products (Hormones) – Arbitration under Article 21.3(c) of the DSU, WT/DS26/15, WT/DS48/13, 29 May 1998, DSR 1998:V, p. 1833

EC – IT Products

Panel Reports, European Communities and its member States – Tariff Treatment of Certain Information Technology Products, WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933

EC – Sardines

Appellate Body Report, European Communities – Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p. 3359

EC – Sardines

Panel Report, European Communities – Trade Description of Sardines, WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate Body Report WT/DS231/AB/R, DSR 2002:VIII, p. 3451

EC – Seal Products

Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18 June 2014

EC – Seal Products

Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R / WT/DS401/R / and Add.1, adopted 18 June 2014, as modified by Appellate Body Reports WT/DS400/AB/R / WT/DS401/AB/R

EC – Selected Customs Matters

Appellate Body Report, European Communities – Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791

EC – Tariff Preferences

Appellate Body Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, adopted 20 April 2004, DSR 2004:III, p. 925

EC and certain member States – Large Civil Aircraft

Appellate Body Report, European Communities and Certain Member States
– Measures Affecting Trade in Large Civil Aircraft
, WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7

Guatemala – Cement I

Appellate Body Report, Guatemala – Anti‑Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, p. 3767

Guatemala – Cement II

Panel Report, Guatemala – Definitive Anti‑Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, DSR 2000:XI, p. 5295

India – Agricultural Products

Panel Report, India – Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/R and Add.1, circulated to WTO Members 14 October 2014 [adoption/appeal pending]

India – Autos

Panel Report, India – Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, p. 1827

India – Quantitative Restrictions

Appellate Body Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, DSR 1999:IV, p. 1763

Indonesia – Autos (Article 21.3(c))

Award of the Arbitrator, Indonesia – Certain Measures Affecting the Automobile Industry – Arbitration under Article 21.3(c) of the DSU, WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12, 7 December 1998, DSR 1998:IX, p. 4029

Japan – Agricultural Products II

Appellate Body Report, Japan – Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277

Japan – Agricultural Products II

Panel Report, Japan – Measures Affecting Agricultural Products, WT/DS76/R, adopted 19 March 1999, as modified by Appellate Body Report WT/DS76/AB/R, DSR 1999:I, p. 315

Japan – Alcoholic Beverages II

Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97

Japan – Apples

Appellate Body Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391

Japan – Apples

Panel Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report WT/DS245/AB/R, DSR 2003:IX, p. 4481

Japan – Apples
(Article 21.5 – US)

Panel Report, Japan – Measures Affecting the Importation of Apples – Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW, adopted 20 July 2005, DSR 2005:XVI, p. 7911

Korea – Dairy

Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, p. 3

Korea – Various Measures on Beef

Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, p. 5

Mexico – Taxes on Soft Drinks

Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, adopted 24 March 2006, DSR 2006:I, p. 3

Philippines – Distilled Spirits

Appellate Body Reports, Philippines – Taxes on Distilled Spirits, WT/DS396/AB/R / WT/DS403/AB/R, adopted 20 January 2012, DSR 2012:VIII, p. 4163

Thailand – H‑Beams

Appellate Body Report, Thailand – Anti‑Dumping Duties on Angles, Shapes and Sections of Iron or Non‑Alloy Steel and H‑Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701

Turkey – Textiles

Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/R, adopted 19 November 1999, as modified by Appellate Body Report WT/DS34/AB/R, DSR 1999:VI, p. 2363

US – Anti-Dumping and Countervailing Duties (China)

Appellate Body Report, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, adopted 25 March 2011, DSR 2011:V, p. 2869

US – Carbon Steel

Appellate Body Report, United States – Countervailing Duties on Certain Corrosion‑Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779

US – Clove Cigarettes

Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, adopted 24 April 2012, as modified by Appellate Body Report WT/DS406/AB/R

US – Continued Suspension

Appellate Body Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008, DSR 2008:X, p. 3507

US – Continued Suspension

Panel Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/R, adopted 14 November 2008, as modified by Appellate Body Report WT/DS320/AB/R, DSR 2008:XI, p. 3891

US – Continued Zeroing

Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, p. 1291

US – COOL

Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 2012, DSR 2012:V, p. 2449

US – COOL

Panel Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 2012:VI, p. 2745

US – Corrosion‑Resistant Steel Sunset Review

Appellate Body Report, United States – Sunset Review of Anti‑Dumping Duties on Corrosion‑Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3

US – Cotton Yarn

Appellate Body Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted 5 November 2001, DSR 2001:XII, p. 6027

US – Gasoline

Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3

US – Hot‑Rolled Steel (Article 21.3(c))

Award of the Arbitrator, United States – Anti‑Dumping Measures on Certain Hot‑Rolled Steel Products from Japan – Arbitration under Article 21.3(c) of the DSU, WT/DS184/13, 19 February 2002, DSR 2002:IV, p. 1389

US – Large Civil Aircraft (2nd complaint)

Appellate Body Report, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/AB/R, adopted 23 March 2012, DSR 2012:I, p. 7

US – Oil Country Tubular Goods Sunset Reviews

Appellate Body Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, p. 3257

US – Poultry (China)

Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909

US – Shrimp

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, p. 2755

US – Shrimp
(Article 21.5 – Malaysia)

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481

US – Shrimp (Thailand) /
US – Customs Bond Directive

Appellate Body Report, United States – Measures Relating to Shrimp from Thailand / United States – Customs Bond Directive for Merchandise Subject to Anti‑Dumping/Countervailing Duties, WT/DS343/AB/R / WT/DS345/AB/R, adopted 1 August 2008, DSR 2008:VII, p. 2385 / DSR 2008:VIII, p. 2773

US – Softwood Lumber IV

Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, p. 571

US – Tuna II (Mexico)

Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012

US – Upland Cotton

Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3

US – Wool Shirts and Blouses

Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, p. 323

US – Zeroing (EC)
(Article 21.5 – EC)

Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS294/AB/RW and Corr.1, adopted 11 June 2009, DSR 2009:VII, p. 2911

US – Zeroing (Japan) (Article 21.5 – Japan)

Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan, WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

 

 


EXHIBITS REFERRED TO IN THIS REPORT

Panel Exhibit

Title

ARG-1

Commission Regulation (EU) N° 206/2010 of 12 March, 2010, laying down lists of third countries, territories or parts thereof authorized for the introduction into the European Union of certain animals and fresh meat and the veterinary certification requirements, 2010 O.J. (L 073) 1-121

ARG-4
USA-37

Plan de Erradicación de la Fiebre Aftosa: Resolución SENASA 5/01

ARG-5

Resolución SENASA Nº 35/06

ARG-6

Resolución SENASA Nº 36/06

ARG-7

USDA/APHIS, Veterinary Services, APHIS Evaluation of the Status of the Brazilian State of Santa Catarina Regarding Foot-and-Mouth Disease, Classical Swine Fever, Swine Vesicular Disease, and African Swine Fever (revised 16 August 2010)

ARG-8

Importation of Beef from Uruguay, 68 Fed. Reg. 31940 (USDA/APHIS May 29, 2003) (Final Rule)

ARG-9

USDA, Veterinary Services, National Center for Import and Export Regionalization Evaluation Services, Risk Analysis: Risk of Exporting Foot-and-Mouth Disease (FMD) in FMD‑Susceptible Species from Argentina, South of the 42 Parallel (Patagonia South), to the United States: Evaluation of the FMD Status of Argentina, South of the 42 Parallel (June 2005)

ARG-10

OIE World Assembly, Resolution XXI, Recognition of the Foot and Mouth Disease Status of Member Countries, 75th General Session (20-25 May 2007)

ARG-12

OIE World Assembly, Resolution No. 14, Recognition of the Foot and Mouth Disease Status of Members, 79th General Session (22-27 May 2011)

ARG-15

Importation of Animals and Animal Products, 62 Fed. Reg. 56000 (USDA/APHIS October 28, 1997) (Final Rule)

ARG-16

Information From Foreign Regions Applying for Recognition of Animal Health Status: Final Rule, 77 Fed. Reg. 44107 (USDA/APHIS, 27 July 2012) (Final Rule)

ARG-18

Resolución SENASA Nº 351/06

ARG-21

Changes in the Disease Status of the Brazilian State of Santa Catarina with Regard to Certain Ruminant and Swine Diseases, 75 Fed. Reg. 69851 (USDA/APHIS November 16, 2010) (Final Rule)

ARG-22

Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 30 June‑1 July 2011, Note by the Secretariat, G/SPS/R/63 (12 September 2011)

ARG-23

Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 10‑11 July 2012, Note by the Secretariat, G/SPS/R/67 (11 September 2012)

ARG-26

Importation of Beef from Argentina, 62 Fed. Reg. 34385 (USDA/APHIS June 26, 1997) (Final Rule)

ARG-27

USDA/APHIS, Risk Assessment: Argentine Beef (June 1997)

ARG-28

USDA/APHIS, Risk Analysis: Evaluation of risk to the United States (US) of importing Foot and Mouth Disease (FMD) Virus in Fresh or Frozen Beef from Argentina (4 December 2000)

ARG-29

Prohibition of Beef from Argentina, 66 Fed. Reg. 29897 (4 June 2001) (Interim Rule)

ARG-30

Prohibition of Beef from Argentina, 66 Fed. Reg. 63911 (11 December 2001) (Final Rule)

ARG-31

Agri-Food Health & Quality National Service, Information provided by SENASA for the recognition of Argentina as a Region comprised in Article 92.2 Title 9, Code of Federal Regulations in regards to FMD (August 2002)

ARG-37

Letter from Hon. José O. Bordón, Ambassador of Argentina to Hon. Mike Johanns, US Secretary of Agriculture (30 November 2005)

ARG-38

Letter from John R. Clifford, Deputy Administrator, Veterinary Services, APHIS, to Jorge N. Amaya, President, SENASA (10 February 2006)

ARG-39

Letter dated 22 January 2008 from various legislators of the Agriculture Commission of the House of Representatives, requesting a hearing review into the proposed rule of the United States Department of Agriculture to recognize Patagonia as a region free of foot-and-mouth disease (22 January 2008)

ARG-40

Letter from Senator Baucus et al. to Edward Schafer, Secretary, US Department of Agriculture and Jim Nussle, Director, Office of Management and Budget regarding proposed USDA rule on Patagonia South (14 March 2008)

ARG-41

Letter from Minister José Pérez Gabilondo to Senator Tester in response to his concern over the access of beef from Argentina (7 March 2008)

ARG-42

Letter from Ambassador Héctor Timerman to Senator Baucus in response to his 14 March 2008 letter (20 March 2008)

ARG-44

H.R. Res. 1226, 111th Cong. (2009); S. Res. 337, 111th Cong (2009)

ARG-45
USA-95

Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, §737, 123 Stat. 524, 559

ARG-46

Letter from Jorge N. Amaya, President, SENASA, to John R. Clifford, Deputy Administrator, Veterinary Services, APHIS, Note No. 150/2010 (19 July 2010)

ARG-47

Letter from John R. Clifford, Deputy Administrator, Veterinary Services, APHIS to Jorge N. Amaya, President, SENASA (24 September 2010)

ARG-48

Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 19-20 October 2011, Note by the Secretariat, G/SPS/R/64 (17 January 2012)

ARG-50

Information provided by SENASA for the Recognition of Argentina's Patagonia as a Region Comprised in Article 92.2, Title 9, Code Of Federal Regulations in Regard to Foot and Mouth Disease – FMD (July 2003)

ARG-56
USA-104

Change in Disease Status of the Patagonia South Region of Argentina With Regard to Rinderpest and Food- and-Mouth Disease, 72 Fed. Reg. 475 (5 January 2007) (Proposed Rule)

ARG-59
USA-111

Letter from Oscar Astibia, Coordinator of International and Institutional Relations, SENASA, to Yvette Pérez, USDA/APHIS, Buenos Aires, CRI No. 7103/08 (17 December 2008)

ARG-60
USA-112

Letter from Oscar Astibia, Coordinator of International and Institutional Relations, SENASA, to Yvette Pérez, USDA/APHIS, Buenos Aires, URI No. 460/09 (30 January 2009)

ARG-61
USA-56

Letter from Jorge N. Amaya, President, SENASA to John R. Clifford, Deputy Administrator, Veterinary Services, APHIS, Note No. 149/2010 (19 July 2010)

ARG-62

Letter from John R. Clifford, Deputy Administrator, APHIS, to Jorge N. Amaya, President, SENASA (13 September 2010)

ARG-63

APHIS Policy Regarding Importation of Animals and Animal Products, 62 Fed. Reg. 56027 (USDA/APHIS, 28 October 1997) (Notice)

ARG-64

Rinderpest, Foot-and-Mouth Disease, Exotic New-Castle Disease, African Swine Fever, Swine Vesicular Disease, and Bovine Spongiform Encephalopathy: Prohibited and Restricted Importations, 9 C.F.R. § 94

ARG-65

USDA/APHIS, Risk assessment: Importation of fresh (chilled or frozen) beef from Uruguay (November 2002)

ARG-69

Application for recognition of the animal health status of a region, 9 C.F.R. § 92.2 (a)-(f)

ARG-79

Letter from John R. Clifford, Deputy Administrator, Veterinary Services, APHIS to Jorge N. Amaya, President, SENASA (27 April 2009)

ARG-86

Further information requested by USDA-APHIS of the information provided by SENASA to attain recognition of Argentina's Patagonia as a region, as defined in Section 92.2, title 9, of the Code of Federal Regulations for Foot and Mouth Disease (FMD) (November 2004)

ARG-89

OIE World Assembly, Resolution XVII, Recognition of the Foot and Mouth Disease Status of Member Countries, 70th General Session (26-31 May 2002)

ARG-92

Resolución SENASA Nº 25/01

ARG-94

Resolución SENASA Nº 112/02

ARG-95

OIE World Assembly, Resolution XX, Recognition of the Foot and Mouth Disease Status of Member Countries, 73rd General Session (22-27 May 2005)

ARG-96

Letter CRI 1968/05, 5 December 2005, reporting APHIS about SENASA strike (5 December 2005)

ARG-97

Letter from Dr Jorge Amaya, SENASA, to Dr John Clifford, APHIS, concerning the eradication of the San Luis del Palmar (Corrientes) outbreak (26 July 2006)

ARG-98

Communication by Argentina to the Committee on Sanitary and Phytosanitary Measures: Foot And Mouth Disease Situation, G/SPS/GEN/868 (21 July 2008)

ARG-99

Letter from Dr Miguez, SENASA to Dr Peter Fernandez, APHIS (13 July 2013)

ARG-100

OIE World Assembly, Resolution XX, Recognition of the Foot and Mouth Disease Status of Member Countries, 71st General Session (18-23 May 2003)

ARG-101

OIE World Assembly, Resolution XX, Recognition of the Foot and Mouth Disease Status of Member Countries, 72nd General Session (23-28 May 2004)

ARG-102

OIE World Assembly, Resolution XXVI, Recognition of the Foot and Mouth Disease Status of Member Countries, 74th General Session (21-26 May 2006)

ARG-103

OIE World Assembly, Resolution XVII, Recognition of the Foot and Mouth Disease Status of Member Countries, 69th General Session (27 May-1 June 2001)

ARG-107

Final Report Of A Mission Carried Out In Argentina From 18 To 29 November 2002 In Order To Evaluate The Controls In Place Over Foot And Mouth Disease And To Assess Public Health Controls Over The Production Of Fresh Meat. (DG(SANCO)/8715/2002 – MR Final)

ARG-108

Decision of the European Commission No. 2002/68/EC (30 January 2002)

ARG-109

Decision of the European Commission No. 2002/198/EC (7 March 2002)

ARG-110

Final Report Of A Mission Carried Out In Argentina From 19 To 30 April 2004 In Order To Evaluate Animal Health Controls In Place In Particular Over Foot And Mouth Disease, Public Health Control Systems And Certification Procedures. (DG(SANCO)/7184/2004 – MR Final)

ARG-111

Final Report Of A Mission Carried Out In Argentina From 3 To 13 July 2006 In Order To Evaluate Animal Health Controls In Place In Particular Over Foot And Mouth Disease, Public Health Control Systems And Certification Procedures. (DG(SANCO)/8203/2006 – MR Final)

ARG-114

Decision of the European Commission No. 2002/45/EC (22 January 2002)

ARG-118

2002 edition of 9 C.F.R. § 92.2

ARG-119

Report of the Meeting of the OIE Foot and Mouth Disease and Other Epizootics Commission (Paris, 16, 17 and 22 May 2003)

ARG-120

Decision of the European Commission No. 2008/642/EC (31 July 2008), amending Annex II to Council Decision 79/542/EEC as regards the entries for Argentina, Brazil and Paraguay in the list of third countries and parts thereof from which imports into the Community of certain fresh meat are authorized

ARG-124

SENASA Notice No. 4056 informing the minimum frequency of supervisory visits to all types of authorized establishments (4 January 2013)

ARG-126

9 C.F.R. § 94.1 (1-1-2012 ed.)

ARG-128

D.J. Paton, M. Sinclair, R. Rodríguez, Qualitative assessment of the commodity risk factor for spread of foot-and-mouth disease associated with international trade in deboned beef, OIE ad hoc Group on Trade in Animal Products (October 2009)

ARG-133

USDA/APHIS, Site Visit Report: Uruguay – Foot and Mouth Disease (September 2002)

ARG-134

Resolución SENASA 181/2010. Modificación de la estrategia de vacunación en relación con la erradicación de la fiebre aftosa

ARG-135

Resolución SENASA 540/2010. Créase el Sistema de Registro y Notificación de Enfermedades Denunciables de los Animales

ARG-136

Resolución SENASA 3/2007. Plan Nacional de Contención de la Fiebre Aftosa

ARG-137

Manual de Procedimientos para la Atención de un Foco. SENASA (October 2001)

ARG-138

Resolución SENASA 82/2013. Vacunación antiaftosa en la Zona Patagónica Norte A. Prohibición

ARG-139

Resolución SENASA 385/2008. Estrategias de Vacunación Antiaftosa para bovinos/bubalinos en todo el Territorio Nacional

ARG-142

Resolución SENASA 37/2002. Establécense medidas de prevención de difusión de la fiebre aftosa ante la aparición de casos clínicos de la enfermedad, o ante la existencia de factores de riesgo tales como el ingreso de animales, productos o fómites desde zonas infectadas o presuntamente infectadas, o deficiencias en la cobertura vacuna

ARG-143

Resolución SENASA 754/2006. Créase la Clave Unica de Identificación Ganadera, que identificará individualmente a cada productor pecuario del país en cada establecimiento agropecuario. Apruébase el "Procedimiento para Reidentificación de Bovinos

ARG-144

Resolución SENASA 563/2012. Identificación de las especies Bovino y Bubalino. Deróganse los Artículos 2°, 3° y 4° de la Resolución N° 370/2006 de la ex Secretaría de Agricultura, Ganadería, Pesca y Alimentos

ARG-145

Resolución SENASA 15/2003. Créase el "Sistema de Identificación de Ganado Bovino para Exportación", que deberá ser aplicado en forma obligatoria en todos los campos inscriptos en el "Registro de Establecimientos Rurales proveedores de ganado para Faena de Exportación" y por los Establecimientos que se inscriban en el "Registro de Establecimientos Pecuarios de Engorde a Corral proveedores de bovinos para faena con destino a exportación

ARG-146

Resolución SENASA 391/2003. Inscripción de "Establecimientos Rurales de Origen", que provean bovinos nacidos y criados en los mismos con destino a "Establecimientos Rurales Proveedores de Ganado para Faena de Exportación". Requisitos

ARG-147

Decreto 4238/68. Reglamento de Inspección de Productos, Subproductos y Derivados de Origen Animal

ARG-148

Resolución SAGPYA 310/2004. Exigencias a las que deberán ajustarse todos los establecimientos de faena y/o proceso y/o depósito interesados en exportar carnes frescas y/o menudencias. Deróganse las Resoluciones Nros. 1/2003 y 339/2003 – SENASA

ARG-149

Resolución SENASA 810/2009. Apruébase el Certificado Unico de Lavado y Desinfección de Vehículos para el Transporte de Animales Vivos

ARG-151

SENASA Circular No. 3307 (30 July 1997)

ARG-152

Resolución SENASA 178/2001. Reglaméntase el procedimiento que garantiza la identificación del origen de los animales que se movilicen con cualquier destino. Derógase la Resolución Nº 1991/2000

ARG-153

Resolución SENASA 33/2002. Apruébase la Guía de Procedimientos para Planes de Vacunación y el Formulario para la Auditoría de Planes de Vacunación

USA-25

Dr. Alberto E. Pecker, SENASA, Fiebre Aftosa: Su Paso Por La Argentina (October 2007)

USA-30

Certification of Beef from Argentina, 65 Fed. Reg. 82894 (29 December 2000)

USA-32

Information Provided by SENASA to Attain Recognition of Argentina as a Region, as defined in Section 92.2, Title 9, of the Code of Federal Regulations for Foot and Mouth Disease (FMD) (November 2002)

USA-33

SENASA, National FMD Eradication Plan April, 2001: Report of 2000-2001 FMD Outbreaks, Actions adopted and Contingency Program in Case of FMD Risks (February 2002)

USA-42

General Auditing Office of Argentina, SENASA Program for the Fight Against Foot and Mouth Disease (22 August 2003)

USA-49

"Cane Returns to Lead SENASA", La Nación (30 March 2001)

USA-50

SENASA Decreto 394/2001

USA-51

Facsimile from Jose Molina, Minister Embassy of Argentina, to Peter Fernandez, APHIS (5 September 2003)

USA-54

Veterinary Services (VS), Foot and Mouth Disease Argentina Impact Worksheet (15 February 2006)

USA-55

OIE World Assembly, 74th General Session, Final Report (2006)

USA-57

Report of the Meeting of the OIE Scientific Commission for Animal Diseases (February 2007)

USA-58

United States Department of Agriculture (USDA), Veterinary Services, National Center for Import and Export Regionalization Evaluation Services, Risk Analysis: Risk of Exporting Foot-and-Mouth Disease (FMD) in FMD‑Susceptible Species from Argentina, South of the 42 Parallel (Patagonia South), to the United States (June 2005), p. 32

USA-59

Resolución SENASA 58/2001

USA-60

Resolución SENASA 1051/2002

USA-61

Resolución SENASA 725/2005

USA-62

Resolución SENASA 148/2008

USA-72

9 C.F.R. § 92.1 (2013)

USA-75

7 U.S.C. §8303 (2012)

USA-76

9 C.F.R. § 92.2 (2013), Process for Foreign Animal Disease Status Evaluations, Regionalization, Risk Analysis, and Rulemaking

USA-78

Facsimile from Donald Wimmer (United States Department of Agriculture, Animal and Plant Health Inspection Service (USDA, APHIS) Buenos Aires, Argentina Area Director) to Dr. Bernardo Cane (SENASA, President) (6 November 2002)

USA-79

Letter from Dr. Bernardo Cane (SENASA, President) to APHIS (30 December 2002)

USA-80

Facsimile from Rodolfo Acerbi (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS) to Philip Schull (U.S. Embassy in Argentina) (29 April 2003)

USA-81

Report of the Meeting of the OIE Scientific Commission for Animal Diseases (December 2003)

USA-82

Letter from Pablo Kalnay (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS) to Dr. Jorge N. Amaya (SENASA, President) (14 October 2003)

USA-83

Letter from Miguel Santiago Campos (SENASA) to United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS (29 August 2003)

USA-84

Letter from W. Ron DeHaven (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Deputy Administrator) to Dr. Jorge N. Amaya (SENASA, President) (3 October 2003)

USA-85

Facsimile from Thomas C. Schissel (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Assistant Area Director) to Jorge N. Amaya (SENASA, President) (23 October 2003)

USA-86

Facsimile from SENASA to Theresa Boyle (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Area Director) (18 February 2004)

USA-87

Facsimile from SENASA to Theresa Boyle (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Area Director) (30 July 2004)

USA-88

Report of the Meeting of the OIE Ad Hoc Group for Evaluation of Country Status for Foot and Mouth Disease (October 2004)

USA-90

Letter from John R. Clifford (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS) to Dr. Jose Molina (SENASA, Minister) (17 March 2005)

USA-91

Letter from Thomas C. Schissel (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS) to Arturo Ortiz (SENASA) (21 April 2005)

USA-92

Letter from John R. Clifford (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS) to Jorge N. Amaya (SENASA, President) (7 July 2005)

USA-93

Letter from John R. Clifford (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Deputy Administrator) to Dr. Jorge N. Amaya (SENASA, President) (4 August 2005)

USA-94

Letter from Thomas Schissel (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Area Director) to Jorge N. Amaya (SENASA, President) (27 June 2006)

USA-96

Letter from Dr. Peter J. Fernandez (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Acting Associate Administrator) to Marcelo S. Miguez (SENASA, President) (13 March 2013)

USA-97

Letter from Kevin Shea (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Administrator) to Marcelo S. Miguez (SENASA, President) (15 July 2013)

USA-98

Information Provided by SENASA to Attain Recognition of Patagonia as a Region, as Defined in Section 92.2, Title 9 of the Code of Federal Regulations for Foot and Mouth Disease (FMD) (July 2003)

USA-99

Facsimile from Theresa Boyle (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS, Area Director) to Dr. Jorge N. Amaya (SENASA, President) (6 November 2003)

USA-100

Letter from W. Ron DeHaven (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS) to Dr. Jorge N. Amaya (SENASA, President) (6 November 2003)

USA-102

Letter from W. Ron DeHaven (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS) to Dr. Jorge Amaya (SENASA, President) (2 March 2004)

USA-103

Further Information Requested by the United States Department of Agriculture, Animal and Plant Health Inspection Service (USDA, APHIS) of the Information Provided by SENASA to Attain Recognition of Patagonia as a Region, as Defined in Section 92.2, Title 9 of the Code of Federal Regulations for Foot and Mouth Disease (FMD) (November 2004)

USA-105

OIE World Assembly, 75th General Session, Final Report (20-25 May 2007)

USA-106

Letter from Yvette Perez (United States Department of Agriculture, Animal and Plant Health Inspection Service, USDA, APHIS) to Oscar Astibia (SENASA) (15 October 2008)

USA-107

Facsimile from Oscar Astibia (SENASA) to Yvette Perez (USDA, APHIS) (22 October 2008)

USA-108

Facsimile from Oscar Astibia, SENASA, to Yvette Perez, USDA, APHIS (11 November 2008)

USA-109

Resolución SENASA 1282/2008

USA-132

Notice of Availability of Evaluations of the Foot-and-Mouth Disease and Rinderpest Status of a Region of Patagonia, Argentina, 79 Fed. Reg. 3775 (23 January 2014) (Notice of availability)

USA-133

USDA/APHIS, Risk Analysis: Risk of Importing Foot-and-Mouth Disease in Susceptible Species and Products from a region of Patagonia, Argentina (updated January 2014)

USA-149

Dr. Alberto E. Pecker, SENASA, Fiebra Aftosa: Su Paso Por La Argentina (October 2007)

USA-151

Final Report Of A Mission Carried Out In Argentina From 3 To 13 July 2006 In Order To Evaluate Animal Health Controls In Place In Particular Over Foot And Mouth Disease, Public Health Control Systems And Certification Procedures (DG(SANCO)/7590/2005 – MR Final)

USA-167

Notice of Determination of the Foot-and-Mouth Disease and Rinderpest Status of a Region of Patagonia, Argentina, 79 Fed. Reg. 51528 (29 August 2914) (Notice)

USA-168

Importation of Beef From a Region in Argentina, 79 Fed. Reg. 51508 (29 August 2014) (Proposed Rule)

USA-169

APHIS, Veterinary Services, National Import Export Services, Risk Analysis: Foot-and-Mouth Disease Risk from Importation of Fresh (Chilled or Frozen), Matured, Deboned Beef from Northern Argentina into the United States (April 2014)

 


ABBREVIATIONS USED IN THis REPORT

Abbreviation

Description

AHPA

Animal Health Protection Act

ALOP

Appropriate Level of Protection

APHIS

Animal and Plant Health Inspection Service

CFR

United States Code of Federal Regulations

Codex

Codex Alimentarius Commission

DSB

Dispute Settlement Body

DSU

Understanding on Rules and Procedures Governing the Settlement of Disputes

Fed. Reg.

United States Federal Register

FMD

Foot-and-Mouth Disease

GATT 1994

General Agreement on Tariffs and Trade 1994

IPPC

International Plant Protection Convention

OIE

World Organization for Animal Health

SANCO

European Commission's Directorate-General for Health and Consumers

SENASA

Servicio Nacional de Salud Animal (National Animal Health Service)

SPS Agreement

Agreement on the Application of Sanitary and Phytosanitary Measures

SPS Committee

Committee on Sanitary and Phytosanitary Measures

TBT Agreement

Agreement on Technical Barriers to Trade

Terrestrial Code

Terrestrial Animal Health Code

Terrestrial Manual

Manual of Diagnostic Test and Vaccines for Terrestrial Animals

USC

United States Code

USDA

United States Department of Agriculture

VCLT

Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679

WTO

World Trade Organization

 


1  Introduction

1.1  Complaint by Argentina

1.1.  On 30 August 2012, Argentina requested consultations with the United States pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) with respect to the measures and claims set out below.[1]

1.2.  Consultations were held on 18 and 19 October 2012.

1.2  Panel establishment and composition

1.3.  On 6 December 2012, Argentina requested the establishment of a panel pursuant to Article 6 of the DSU with standard terms of reference.[2] At its meeting on 28 January 2013, the Dispute Settlement Body (DSB) established a panel pursuant to the request of Argentina in document WT/DS447/2, in accordance with Article 6 of the DSU.[3]

1.4.  The Panel's terms of reference are the following:

To examine, in the light of the relevant provisions of the covered Agreements cited by the parties to the dispute, the matter referred to the DSB by Argentina in document WT/DS447/2 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those Agreements.[4]

1.5.  On 29 July 2013, pursuant to Article 8.7 of the DSU, Argentina requested the Director‑General to determine the composition of the panel. On 8 August 2013, the Director‑General accordingly composed the Panel as follows:

Chairperson:   Mr Eirik Glenne

 

Members:               Mr Jaime Coghi

                       Mr David Evans

 

1.6.  Australia, Brazil, China, the European Union, India, and the Republic of Korea notified their interest in participating in the Panel proceedings as third parties.

1.3  Panel proceedings

1.3.1  General

1.7.  After consultation with the parties, the Panel adopted its Working Procedures[5] and timetable on 30 August 2013.

1.8.  The Panel held a first substantive meeting with the parties on 28 and 29 January 2014. A session with the third parties took place on 28 January 2014. The Panel held a meeting with the parties and the experts on 2 September 2014 and a second substantive meeting with the parties on 4 and 5 September 2014.

1.9.  On 4 November 2014, the Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 24 February 2015. The Panel issued its Final Report to the parties on 14 April 2015.

1.10.  In these panel proceedings, certain filings were not made in accordance with the Working Procedures and revised timetable adopted by the Panel.[6] The Panel acknowledges that parties experience a variety of pressures in seeking to make timely filings. We also observe that no party claimed that its rights were affected in this case and we are not suggesting this occurred here. Nevertheless, we are mindful that failures to file submissions in accordance with the requirements of the Working Procedures could affect parties' rights, especially when submissions are to be filed simultaneously, and that delays can be detrimental to the orderly conduct of panel proceedings. Furthermore, abiding by the Working Procedures is important to guard against such occurrences. Therefore, on 23 May 2014 the Panel adopted modified Working Procedures incorporating changes to the requirements regarding simultaneous filing of submissions.[7]

1.3.2  Consultation of experts

1.11.  To facilitate the carrying out of its mandate, and in accordance with Article 11.2 of the SPS Agreement and Article 13 of the DSU, the Panel consulted with individual scientific experts and the World Organization for Animal Health (OIE).

1.12.  The initially-adopted Working Procedures and the Timetable of the proceedings were drafted with a view to leaving open the possibility for the Panel to consult scientific experts and/or international organizations. After the first substantive meeting, the Panel asked the parties to indicate their views on whether the Panel should seek scientific and technical advice from experts and/or international organizations. If they were of the view that the Panel should do so, the Panel asked for their views on the following matters: (i) from which international organizations the Panel should seek advice; (ii) from which international organizations the Panel should request suggestions of possible experts; (iii) in what areas of scientific and/or technical expertise the Panel should seek expert advice; (iv) how many experts the Panel should consult in each area of expertise; and (v) whether the Panel should consult experts individually or as part of an expert review group as contemplated in Article 13 and Appendix 4 of the DSU.[8] The Panel also encouraged the parties to reach agreement on any specific scientific experts to be consulted by the Panel.

1.13.  In their responses to the Panel questions on these matters, both the United States and Argentina responded that they did not consider it necessary for the Panel to consult individual experts. As for consulting relevant international organizations – the OIE – the United States stated that it was unable to see how the OIE would be able to assist the Panel.[9] Argentina indicated that it would not object to the Panel seeking advice from the OIE concerning its processes and decisions.[10] The parties did not reach agreement on any specific experts to be consulted by the Panel. After considering the responses of the parties, the Panel decided to seek advice from the OIE with respect to the relevant provisions of the Terrestrial Animal Health Code (Terrestrial Code) as well as from individual experts with respect to, inter alia, risk assessment techniques, veterinary practices and surveillance.[11] The Panel adopted the Working Procedures for the consultation of experts and amended its timetable to take into account the various steps in the process of consulting the OIE and the individual experts.

1.3.2.1  Expert selection

1.14.  Pursuant to the Working Procedures, on 6 March 2014 the Panel requested the OIE Secretariat to identify names of possible individual experts in the following fields: veterinary practice, surveillance, and risk assessment in the context of foot-and-mouth disease (FMD). At the same time, the Panel also informed the OIE that it might seek advice in writing from the OIE Secretariat with regard to the relevant provisions of the Terrestrial Code.

1.15.  On 7 March 2014, the OIE Secretariat responded and provided the WTO with eight names. The WTO Secretariat contacted each of the individuals recommended by the OIE to determine whether they were willing and available to assist the Panel. On 3 April 2014, the Panel forwarded to the parties for comments the names and curricula vitae of those experts who indicated that they were willing to assist the Panel. For reasons of transparency, the Panel informed the parties of all the names proposed by the OIE Secretariat.

1.16.  In accordance with paragraph 23 of the Working Procedures, the Panel invited the parties to comment on the available potential experts identified and to make known any compelling objections to any of the experts. The parties filed their comments on the proposed experts on 15 April 2014. Argentina considered the proposed experts to be well-suited for assisting the Panel, whereas the United States objected to all the proposed experts on the ground that each of them had been "closely involved in the OIE process for adopting Argentina's current OIE status".[12]

1.17.  On 29 April 2014, the Panel contacted the OIE for a second time expressing its wish to enlarge the pool of potential experts. In particular, the Panel asked the OIE to provide additional names of potential experts who had not directly participated in the evaluation of the sanitary situation in Argentina with respect to FMD. On the same day, the Panel invited the parties to identify any experts they considered would be suitable to assist in the proceedings.

1.18.  On 6 May 2014, the OIE Secretariat provided the names of another seven individuals. For reasons of transparency, the Panel informed the parties of the names of those seven additional experts. Argentina and the United States each provided the names of two experts who they viewed as appropriate to assist the Panel. The Panel contacted the 11 individuals to determine their availability and willingness to assist the Panel. The Panel forwarded to the parties for their comments in accordance with paragraph 23 of the Working Procedures the names and curricula vitae of the available experts. The parties commented on the proposed experts on 19 May 2014.

1.19.  On 9 May 2014, the Panel sent to the OIE questions concerning the operation and interpretation of the OIE's standards, guidelines and recommendations as embodied in the Terrestrial Code, as well as any other relevant OIE documents. The parties' written submissions, oral statements and responses to questions were also provided to the OIE. The OIE provided its responses to the Panel's questions on 23 June 2014. The parties' provided their comments on the OIE's responses on 17 July 2014.

1.20.  On 23 May 2014, the Panel informed the parties that it had selected the following experts to assist it: Dr Howard Batho, Dr Etienne Bonbon, Dr Andrew Cupit, and Dr Vitor Salvador Picão Gonçalves.[13] Of the experts selected, Dr Cupit was proposed by the United States and Dr Gonçalves by Argentina. The Panel contacted the four selected experts and informed them that upon receipt of their signed disclosure forms confirming that they had no conflict of interest, the Panel would send them background material and a list of questions to which it wished to have written replies.

1.21.  The Panel received responses to its questions by 30 June from Dr Batho, Dr Bonbon, and Dr Cupit. On 3 July 2014, the Panel received a letter from Dr Gonçalves stating that he was no longer able to assist as an expert in the dispute.[14] The parties' provided their comments on the individual experts' responses on 29 July 2014.

1.22.  On 4 August 2014, the OIE informed the Panel of the members of its delegation who would attend the 2 September expert hearing with the Panel and the parties. By letter dated 11 August 2014, the United States expressed concern with one member of the OIE's delegation, noting that it had objected to this person when proposed by the OIE as an individual expert. The United States' objections were based on the fact that the proposed expert was a private consultant based in Buenos Aires and that this could give rise to the "appearance that [the expert's] opinions could be influenced by the need to maintain relationships with potential sources of consulting work in South America".[15] The United States also stated that as the individual was not an OIE employee, it was unclear how this person would be able to represent the OIE at the meeting.

1.23.  On 14 August 2014, the Panel contacted the OIE and informed it of the United States' concerns regarding the individual. While acknowledging that the individual had an in-depth knowledge of the Terrestrial Code, the OIE and its processes, the Panel indicated that it considered that the individual's work as a private consultant based in Argentina could give rise to doubts as to the individual's independence or impartiality if that individual were to participate in the 2 September meeting. The Panel, noting this could affect the parties' due process rights and its ability to rely on the OIE's responses at the meeting, accordingly asked the OIE to limit its delegation to the two other persons mentioned in the OIE's 4 August communication.

1.24.  On 19 August 2014, the OIE responded, clarifying that the member of its delegation had been continuously under contract with the OIE since 1 August 2012 for the performance of duties on behalf of the Organization. It also stated that as the majority of parties' comments on the responses submitted by the OIE to the Panel's questions were related to the OIE's interpretations, processes, procedures and transparency related to its standard setting, it had "an obligation to [its] 180 Member Countries who have adopted these procedures and norms that the OIE must be represented by the most qualified, knowledgeable and competent individuals at our disposal."[16] In the OIE's view, the person best placed to properly represent the OIE and provide valuable assistance to the Panel was the individual they had chosen.

1.25.  On 26 August 2014, the Panel responded to the OIE's communication, emphasizing that it had an obligation to ensure that the parties' due process rights were respected at each stage and in every aspect of the proceedings. However, in light of the OIE's assurances that the individual was an OIE employee in the sense that the individual had been under contract with the OIE continuously since 1 August 2012 and in view of the comity owed to the OIE Secretariat, the Panel stated that it was prepared to reconsider the individual's attendance at the meeting. In this regard, the Panel asked the OIE to confirm a number of matters relating to any potential conflict of interest arising from the individual's private professional activities in Argentina, and that it confirm that the individual as an OIE employee was governed by the OIE's Rules of Conduct and would also be guided by the WTO's Rules of Conduct for the Settlement of Disputes. The Panel indicated that if it received the requisite assurances and the individual were to participate in the meeting, the parties would be given a period of time to question the individual about any professional affiliation with the OIE, any private consulting activities outside the OIE, and whether those activities would have a bearing on the individual's ability to be impartial and independent when answering questions on behalf of the OIE.

1.26.  On 28 August 2014, the Panel received the confirmation it was seeking with respect to the individual's private professional activities as well as the fact that although the individual was considered as a private consultant to the OIE, in the sense that the individual did not have the entitlements of an OIE staff member, the OIE Rules of Conduct and undertakings on confidentiality were explicitly stated in the individual's contract and were fully equivalent to those applicable to OIE staff.

1.27.  In the context of assisting the Panel in determining the proper allocation of time for statements at the meeting, the United States indicated that it did not wish to avail itself of the opportunity to pose questions at the meeting with the experts to the individual on the OIE's delegation on the matter of impartiality and independence.[17]

2  Factual aspects

2.1  The relevant disease: Foot-and-mouth disease (FMD)

2.1.  Foot-and-mouth disease (FMD) is a highly contagious viral disease that primarily affects cloven (divided)-hoofed livestock and wildlife. Although adult animals generally recover, the morbidity rate is very high in non-vaccinated populations, and significant pain and distress occur in some species. High mortality rates can be observed in non-vaccinated young animals. Complications or other pathological conditions resulting from FMD may include decreased milk yield, permanent hoof damage and chronic mastitis (inflammation of mammary glands and udders). Although FMD was once found worldwide, it has been eradicated from some regions including North America and most of Europe. Where it is endemic, this disease is a major constraint to the international livestock trade. Unless strict precautions are followed, FMD can be readily re-introduced into disease-free livestock. Once this occurs, the disease can spread rapidly through a region, particularly if detection is delayed.[18]

2.2.  The FMD virus survives in living tissue and in the breath, saliva, urine, and other excretions of infected animals. It can also survive in contaminated materials and the environment for several months under certain conditions. In cattle, the incubation period varies from two to fourteen days, depending on the dose of the virus and route of infection. FMD can spread when infected animals bring the virus into physical contact with susceptible animals (i.e. cloven (divided) hoofed animals).[19]

2.3.  The virus has a variety of potential pathways for disease transmission including transmission through beef, offal, and hides derived from infected animals. Given the virulence and the potential rapid spread of the disease, and the significant direct and indirect costs associated with eradication of an outbreak, most countries that have eradicated the disease impose strict sanitary measures on imports of animal products. Countries that are not FMD‑free are usually limited in international markets to sales to other markets that are also not FMD‑free or, in some cases, to exports of specific types of meat products (for example, processed meat). These restrictions thus create a segmented market in which products from countries that are FMD‑free sell at a premium (10 to 50 per cent) over products that do not have this designation.[20]

2.4.  One of the tools countries or regions use to move towards eradication of the disease is to vaccinate cattle and other susceptible animals against FMD.

2.2  The measures at issue

2.5.  In the present dispute, Argentina challenges two sets of measures: (a) the United States' prohibition on importation of fresh (chilled or frozen) beef from the portion of the Argentine territory located north of the Rio Negro (Northern Argentina) and on the importation of animals, meat and other animal products from the Patagonia region as a consequence of the failure to recognize Patagonia as an FMD‑free region, contained in 9 CFR 94.1(b) and the 2001 Regulations, and in 9 CFR 94, respectively; and (b) the undue delay in the application of the procedures set forth in Title 9 of the United States' Code of Federal Regulations, Part 92.2 (9 CFR 92.2) to Argentina's requests for importation of fresh (chilled or frozen) beef from Northern Argentina and for the recognition of the Patagonia region as free from FMD.

2.2.1  Prohibition on importation of fresh (chilled or frozen) beef from Northern Argentina and animals, meat and other animal products from the Patagonia region

2.2.1.1  Title 9 of the Code of Federal Regulations, Part 94

2.6.  The first measure at issue is Title 9 of the United States' Code of Federal Regulations, Part 94 (9 CFR 94)[21], which, in its application, effectively prohibits the importation of fresh (chilled or frozen) beef from Northern Argentina and animals, meat and other animal products[22] from the Patagonia region. 9 CFR 94 reads, in relevant part:

94.1   Regions where rinderpest or foot-and-mouth disease exists; importations prohibited.

(a)     APHIS considers rinderpest or foot-and-mouth disease to exist in all regions of the world except those declared free of one or both of these diseases by APHIS.

(1)     A list of regions that APHIS has declared free of … foot and mouth disease are maintained on the APHIS Web site at: http://www.aphis.usda.gov/import_export/animals/animal_disease_status.shtml. …

(2)     APHIS will add a region to the list of those it has declared free of rinderpest or foot-and-mouth disease, or both after it conducts an evaluation of the region in accordance with §92.2 and finds that the disease, or diseases, are not present. In the case of a region formerly on this list that is removed due to an outbreak, the region may be returned to the list in accordance with the procedures for reestablishment of a region's disease-free status in §92.4 of this subchapter. APHIS will remove a region from the list of those it has declared free of rinderpest or foot-and-mouth disease upon determining that the disease exists in the region based on reports APHIS receives of outbreaks of the disease from veterinary officials of the exporting country, from the World Organization for Animal Health (OIE), or from other sources the Administrator determines to be reliable.[23]

(b)    The importation of any ruminant or swine or any fresh (chilled or frozen) meat of any ruminant or swine that originates in any region where rinderpest or foot-and-mouth disease exists, as designated in paragraph (a) of this section, or that enters a port in or otherwise transits a region in which rinderpest or foot-and-mouth disease exists, is prohibited … . (underlining added)

94.2        Fresh (chilled or frozen) products (other than meat), and milk and milk products of ruminants and swine.

(a)    The importation of fresh (chilled or frozen) products (other than meat and milk and milk products) derived from ruminants or swine, originating in, shipped from, or transiting any region designated in §94.1(a) as a region infected with rinderpest or foot-and-mouth disease is prohibited, except as provided in §94.3 and parts 95 and 96 of this chapter.

(b)     The importation of milk and milk products of ruminants and swine originating in, shipped from, or transiting any region designated in §94.1(a) as a region infected with rinderpest or foot-and-mouth disease is prohibited, except as provided in §94.16.

2.7.  As the language above indicates, the Animal and Plant Health Inspection Service (APHIS) maintains a list of regions that it has declared free of FMD. Imports into the United States of FMD‑susceptible animals and animal products from regions not included in the list are prohibited. Nevertheless, specific products originating in certain regions that do not appear on the list (i.e. regions that APHIS has not declared to be free from FMD) may be eligible for import into the United States' territory provided that they comply with sanitary protocols agreed to with APHIS and set forth in other sections of 9 CFR 94. Argentine fresh (chilled or frozen) beef was imported pursuant to such a provision (former 9 CFR 94.21) between 1997 and 2001. In 2001, in response to FMD outbreaks in Argentina, 9 CFR 94.21 was repealed and Argentine products were made subject to the prohibitions under 9 CFR 94.1(b). At the time of the Panel's establishment, only Uruguay was listed under this category, and was permitted to export fresh (chilled or frozen) beef to the United States under the protocols contained in 9 CFR 94.22.[24]

2.8.  As discussed below, Argentina also challenges the Interim and Final Rules that repealed 9 CFR 94.21 and had the effect of making imports from Argentina subject to the general prohibition in 9 CFR 94.1(b).

2.2.1.2  APHIS' 2001 Interim and Final Rules amending 9 CFR 94

2.9.  Argentina experienced multiple FMD outbreaks between July 2000 and January 2002. In March 2001 Argentina suspended its exports of fresh (chilled or frozen) beef to the United States. Subsequently, APHIS issued: (a) an Interim Rule published in the Federal Register on 4 June 2001[25] and (b) a Final Rule published in the Federal Register on 11 December 2001.[26] The Panel refers to these Rules collectively as the "2001 Regulations". The effect of the Interim Rule was to amend 9 CFR 94 to prohibit the importation of fresh (chilled or frozen) beef from Argentina by removing 9 CFR 94.21 (which, as noted above, had allowed such importation). This amendment was maintained without change in the Final Rule. Thus, as a result of the adoption of the 2001 Regulations, the prohibitions under 9 CFR 94.1(b), which had applied prior to 1997, once again became applicable to FMD‑susceptible animals and animal products from Argentina.[27]

2.10.  From 2001 until the date of the establishment of the Panel, APHIS had not issued any further regulations affecting the legal status of imports of fresh (chilled or frozen) beef from Argentina, or on animals, meat and other animal products from the Patagonia region.[28] In other words, the version of the CFR in force on the date of establishment of the Panel reflects the amendments made as a result of the 2001 Regulations.

2.2.2  The United States' alleged undue delay in the application of the procedures set forth in 9 CFR 92.2 to Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as free from FMD

2.11.  APHIS' approval procedures, detailed in 9 CFR 92.2, entitled "Requests for recognition of a region or for approval to export animals or animal products …", set forth the terms under which a region or country can be recognized as FMD‑free or an authorization to import of FMD‑susceptible animal products can be obtained. The procedure in 9 CFR 92.2 is the only procedure that permits an applicant to obtain import approval for FMD purposes, whether for a region recognized by APHIS as FMD‑free or for a single commodity (i.e. beef) from a country or region.[29] This procedure begins when a country submits an application to APHIS for recognition of its entire territory, or a region thereof, as an FMD‑free zone ("regionalization request"). 9 CFR 92.1 defines "region" as "[a]ny defined geographic land region identifiable by geological, political or surveyed boundaries". As such, a region for the purposes of APHIS' approval procedures may consist of: (a) a "national entity (country)"; (b) "[p]art of a national entity (zone, county, department, municipality, parish, Province, State, etc.)"; (c) "[p]arts of several national entities combined into an area"; or (d) a "group of national entities (countries) combined into a single area".[30]

2.12.  The application process requires the applicant country to provide information on the following eleven factors:

(1) The authority, organization, and infrastructure of the veterinary services organization in the region;

(2) Disease status—i.e., is the restricted disease agent known to exist in the region? If "yes," at what prevalence? If "no," when was the most recent diagnosis?

(3) The status of adjacent regions with respect to the agent;

(4) The extent of an active disease control program, if any, if the agent is known to exist in the region;

(5) The vaccination status of the region. When was the last vaccination? What is the extent of vaccination if it is currently used, and what vaccine is being used?

(6) The degree to which the region is separated from regions of higher risk through physical or other barriers;

(7) The extent to which movement of animals and animal products is controlled from regions of higher risk, and the level of biosecurity regarding such movements;

(8) Livestock demographics and marketing practices in the region;

(9) The type and extent of disease surveillance in the region—e.g., is it passive and/or active; what is the quantity and quality of sampling and testing?

(10) Diagnostic laboratory capabilities;

(11) Policies and infrastructure for animal disease control in the region—i.e., emergency response capacity.[31]

2.13.  After an application is filed, APHIS evaluates the likelihood of entry, establishment, or spread of the disease. As part of the evaluation, APHIS requests the applicant country to provide detailed scientific information as necessary, and typically conducts one or more visits to the region covered by the regionalization request. Upon completion of its evaluation, APHIS communicates the evaluation and its results to the applicant country and other potentially affected and interested parties by publishing a proposed regulatory document in the Federal Register.[32] All potentially affected and interested parties are invited to respond to and submit comments on the proposed regulatory document. After the expiration of the public comment period, APHIS collects all the comments, reviews them, and prepares responses. It reviews the proposed regulatory document in light of these comments and revises it as appropriate.

2.14.  As the last step of the process, APHIS issues the final regulatory decision on regionalization in the United States' Federal Register. The final decision sets forth the conditions under which imports are authorized in order to meet the appropriate level of protection (ALOP) of the United States.[33] The country or region thereof that is recognized as an FMD‑free zone is then added to the list of regions that are considered free of FMD under 9 CFR 94.1(a)(1) and thus authorized to import. Certain regions listed in 94.1(a)(1) are nevertheless subject to additional protocols set forth in 94.11 if they either (1) supplement their national meat supply through the importation of fresh, chilled or frozen meat of ruminants or swine from countries/regions that are not designated as free of FMD; or (2) they have a common land border with countries/regions that are not designated as free of FMD; or (3) they import ruminants or swine from countries/regions that are not designated as free of FMD.[34]

2.15.  APHIS' approval procedures also contemplate that regions not included in APHIS' list are nevertheless entitled to apply for the right to import a particular product into the United States.[35] Until 27 August 2012, the application, evaluation, and approval process for the right to import a particular product into the United States was, mutatis mutandis, the same as that set forth for regionalization requests and described in paragraphs 2.11‑2.14 above. However, APHIS amended its regulations on 27 August 2012 so as to limit the scope of its application, evaluation, and approval process to regionalization requests, and removed references to requests for approval of imports of a particular type of animal or animal product into the United States.[36] In its first written submission, the United States asserted that the changes to the regulations do not prevent product-specific requests and that "APHIS continues to work on and accept applications to permit product-specific requests".[37]

2.16.  Argentina does not challenge APHIS' approval procedures under 9 CFR 92.2 as such.[38] Rather, Argentina takes issue with the alleged undue delay in the application of APHIS' approval procedures to its requests for authorization of imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free. Argentina filed its request to import fresh (chilled or frozen) beef in November 2002.[39] It filed its request for the recognition of the portion of Patagonia located south of the 42nd parallel (Patagonia South) as FMD‑free within the meaning of 9 CFR 94.1(a) in August 2003.[40] In December 2008, Argentina extended its request for the recognition of Patagonia as FMD‑free to the portion of Patagonia located between the 42nd parallel and the Rio Negro (Patagonia North B).[41] As of the date of the establishment of the Panel (28 January 2013), APHIS had not issued a Proposed or Final Rule or Notice of Determination in either approval process.

2.17.  A chronology of the events relating to the sanitary situation for FMD in Argentina as well as the evaluation of that situation by the OIE and APHIS is attached as Appendix 1 to this Report.[42]

2.2.2.1  Section 737 of the 2009 Omnibus Appropriations Act

2.18.  As part of its arguments concerning alleged undue delays in APHIS' approval processes described in paragraphs 2.11-2.16 above, Argentina also takes issue with Section 737 of the 2009 Omnibus Appropriations Act adopted by the United States' Congress on 10 March 2009.[43] Section 737 reads, in relevant part:

None of the funds made available by this Act may be used to pay the salaries and expenses of any individual to conduct any activities that would allow the importation into the United States of any ruminant or swine, or any fresh (including chilled or frozen) meat or product of any ruminant or swine, that is born, raised, or slaughtered in Argentina: Provided, That this section shall not prevent the Secretary from conducting all necessary activities to review this proposal and issue a report on the findings to the Committees on Appropriations of the House and Senate: Provided further, That this section shall only have effect until the Secretary of Agriculture has reviewed the domestic animal health aspects of the pending proposal to allow the importation of such products into the United States and has issued a report to the Committees on the findings of such review.

2.3  Products at issue

2.19.  9 CFR 94 applies to ruminants[44] and "swine"[45] and products derived from ruminants and swine such as: (i) fresh (chilled or frozen) meat; (ii) milk; (iii) milk products; and (iv) fresh (chilled or frozen) products other than meat, milk, and milk products. The product of relevance to Argentina's claims for Northern Argentina is fresh (chilled or frozen) beef. The products relevant to Argentina's claims for Patagonia are fresh (chilled or frozen) beef, other products of ruminants and swine, as well as the live animals themselves.

2.4  Relevant international standards, guidelines, and recommendations

2.4.1  The OIE and its mandate

2.20.  The OIE is an intergovernmental organization that was created through an international agreement signed on 25 January 1924, as a response to the need to fight animal diseases at a global level. In May 2003, the OIE changed its name from Office International des Epizooties to World Organisation for Animal Health, but kept its historical acronym.[46] The OIE is tasked with improving animal health worldwide.[47] One of its stated objectives is "sanitary safety" for "international trade in animals and animal products".[48] The OIE's activities in this field focus on rules that OIE members "can use to protect themselves from the introduction of diseases and pathogens, without setting up unjustified sanitary barriers".[49]

2.21.  As of October 2014, the OIE had 180 members[50] and their national delegates constitute a World Assembly of Delegates.[51] Both Argentina and the United States are members, as are the third parties to this dispute. In addition to its headquarters in Paris, the OIE has regional and sub-regional offices on every continent.[52]

2.4.2  The Terrestrial Code

2.22.  The SPS Agreement defines the international standards, guidelines, or recommendations of the OIE as the relevant ones for animal health and zoonoses.[53] The international standards of the OIE are published in the form of the Terrestrial Code, the Aquatic Animal Health Code (the Aquatic Code), the Manual of Diagnostic Test and Vaccines for Terrestrial Animals (the Terrestrial Manual), and the Manual of Diagnostic Tests for Aquatic Animals (the Aquatic Manual). All new standards and revisions are adopted by the World Assembly, generally on a unanimous basis following consideration of proposals made by the relevant Specialist Commissions.[54]. Each OIE member casts one vote. The standard setting process of the OIE is driven by its Members and enables the continuous improvement of standards as new scientific information comes to light.[55]

2.23.  This dispute covers trade in FMD‑susceptible animals (i.e. ruminants and swine) and products thereof. Therefore, the relevant code is the Terrestrial Code, which contains standards, guidelines and recommendations designed to prevent the introduction of infectious agents and diseases pathogenic to terrestrial animals and humans into the importing country during trade in terrestrial animals, animal genetic material and animal products. It does this through recommendations on sanitary measures to be used by OIE members in establishing the health regulations applying to the import of animals, animal genetic material and animal products. Such recommendations are the result of the continuous work since 1960 of one of the OIE's Specialist Commissions, namely the OIE Terrestrial Animal Health Standards Commission. The Commission draws upon the expertise of internationally renowned specialists to prepare draft texts for new articles of the Terrestrial Code or to revise existing articles in the light of advances in veterinary science.[56]

2.24.  The first edition of the Terrestrial Code was published in 1968. The Terrestrial Code is reviewed on an annual basis, with new editions adopted by the World Assembly of Delegates of OIE members each year in May. The twenty-first edition of the Terrestrial Code, which was adopted by the OIE International Committee at the eightieth General Assembly Session in May 2012, was the version in effect at the time of the establishment of the Panel, and thus is the version that the Panel will refer to in this report.[57]

2.4.2.1  Objectives and structure of the Terrestrial Code

2.25.  The aim of the Terrestrial Code is to set international "standards for the improvement of terrestrial animal health and welfare and veterinary public health worldwide, including through standards for safe international trade in terrestrial animals (mammals, birds and bees) and their products".[58] According to the Terrestrial Code, these standards consist of health measures based on the latest available scientific evidence and "should be used" by the veterinary authorities of importing and exporting countries to, inter alia, prevent the transfer of agents pathogenic to terrestrial animals and/or humans via international trade in terrestrial animals and terrestrial animal products, while avoiding unjustified sanitary barriers to trade.[59] In sum, the Terrestrial Code aspires to assure sanitary safety of international trade in terrestrial animals while avoiding unjustified sanitary barriers to trade.[60]

2.26.  The Terrestrial Code is divided into two volumes. Volume I, entitled "General provisions", contains horizontal standards that apply to a wide range of species, production sectors and diseases, organized into seven Sections. For instance, this volume includes rules on animal disease diagnosis, surveillance and notification (Section 1), risk analysis (Section 2), quality of veterinary services (Section 3), disease prevention and control (Section 4), trade measures, import/export procedures and veterinary certification (Section 5). The general principles and specific procedures for recognition of official disease status are set out in Chapter 1.6 of the Terrestrial Code, with consolidation and updating of the procedures as set out in Resolutions XXII and XXIII, adopted at the seventy-sixth World Assembly in May 2008.[61]

2.27.  Volume II, in turn, contains standards, guidelines and recommendations applicable to specific diseases, including the recommendations regarding disease surveillance, risk assessment, and zoning and compartmentalization. Specifically, Chapter 8.5 sets out international standards, guidelines and recommendations specific to FMD. It aims to provide for safe trade in FMD‑susceptible animals and products thereof by recommending particular mitigating measures for both exporting and importing Members to be adopted depending on the FMD‑status designation of the exporting country or zone.

2.28.  In the OIE context, the term "sanitary measure" means "a measure, such as those described in the various chapters of the Terrestrial Code, destined to protect animal or human health or life within the territory of the OIE Member from risks arising from the entry, establishment and/or spread of a hazard".[62] According to the Terrestrial Code, "risk" refers to the likelihood of the occurrence and the likely magnitude of the biological and economic consequences of an adverse event or effect to animal or human health. "Risk analysis" means the process consisting of hazard identification, risk assessment, risk management and risk communication, while "risk assessment" means the evaluation of the likelihood and the biological and economic consequences of entry, establishment and spread of a hazard within a territory of an importing country.[63]

2.4.2.2  Official recognition of disease status

2.29.  In light of the standards set forth in the Terrestrial Code, since 1994 the OIE has been recognizing the status of specific countries or zones with respect to a number of animal diseases. As of 2014, the OIE provides official recognitions for six diseases: African horse sickness (AHS), bovine spongiform encephalopathy (BSE), contagious bovine pleuropneumonia (CBPP), classical swine fever (CSF), peste des petits ruminants (PPR), and FMD.[64] The official recognition of the disease status of a country or zone is an "affirmation" that such country or zones "meets the standards set in the Terrestrial Code" with regard to the control of the disease concerned.[65]

2.30.  The procedures the OIE uses to issue official recognitions are embodied in Chapter 1.6 of the Terrestrial Code. With respect to FMD specifically, detailed procedures are contained in Article 1.6.4. As a first step in the FMD‑status recognition process, OIE members must apply for recognition for a country (i.e. the entire territory of a Member) or a zone as FMD‑free where vaccination is or is not practised. To do so, they must provide the OIE with a "dossier" containing the information specified in Article 1.6.4.[66] Such information comprises, inter alia, detailed evidence concerning the following factors: geography of the country or zone concerned; livestock industry; organization of the veterinary system; FMD history and eradication strategies; vaccination; animal identification and movement controls; diagnostic capacity; FMD surveillance; prevention strategies, including at the international level; control measures and contingency planning; and compliance with the Terrestrial Code.[67] The OIE does not initiate the recognition procedure on its own initiative. Therefore, Members which do not apply or fail to meet the requirements for recognition do not have an official FMD‑status determination.[68]

2.31.  The applicant Member's dossier is evaluated by an ad hoc expert Group, usually composed of 2 or 3 individuals covering a broad range of relevant expertise.[69] The Group conducts an assessment of whether the Member complies with the requirements set forth in Chapter 8.5 of the Terrestrial Code, and provides the OIE Scientific Commission[70] with a document summarising their findings and recommendations.[71] In turn, the Scientific Commission reviews the ad hoc expert Group's document and issues a report listing the countries or zones that are proposed for official recognition of a particular disease status for consideration of OIE members at the annual World Assembly.[72] A 60-day "comment period" is provided and the comments expressed by OIE members are considered by the Scientific Commission before finalizing the decision proposal.[73] At any stage of the process, the Scientific Commission may ask the Director General to deploy a mission to the applicant Member.[74] As the last step, the OIE World Assembly adopts a resolution which officially recognizes the applicant country or zone as FMD‑free where vaccination is or is not practised.[75] Members who have an official recognition must submit an updated dossier annually and the decision on official recognition is re-evaluated.[76]

2.32.  When a country or zone previously recognized as FMD‑free where vaccination is or is not practised experiences an FMD outbreak, its official disease status is suspended immediately.[77] In such a case, the Member concerned may apply for recovery of the status pursuant to the procedures set forth in Article 8.5.9 of the Terrestrial Code. The organ in charge of the recovery procedure is the Scientific Commission, which "has the mandate, on request, to reinstate official status" without "prior consultation with the World Assembly".[78] In order to reach its determination on a recovery request, the Commission may call for a new evaluation by the ad hoc expert Group or undertake the assessment itself.[79]

2.4.3  Relevant standards, guidelines or recommendations invoked by the parties

2.33.  Argentina claims that the United States has acted inconsistently with Article 3.1 of the SPS Agreement because it has not based its measures on the following provisions of the OIE Terrestrial Code which it argues constitute relevant international standards, guidelines or recommendations: (a) Chapter 8.5 (in particular Articles 8.5.4, 8.5.5, 8.5.22, 8.5.23, and 8.5.25); (b) Chapters 4.1-4.4; and (c) Sections 1-5.[80]

2.34.  According to the United States, the relevant international standards, guidelines or recommendations in this dispute are contained in Article 1.6.5, Chapter 2.1, and Chapter 8.5 of the Terrestrial Code.[81]

2.5  The parties' domestic FMD situations

2.5.1  Argentina

2.35.  To provide context for the various different regions of Argentina and the disease status thereof, we provide a map of Argentina and the neighbouring territories below.[82]

2.5.1.1  Northern Argentina

2.36.  The OIE recognized the entire Argentine territory as FMD‑free where vaccination is not practised in 2000.[83] This FMD‑status determination was suspended in May 2001[84] in light of multiple FMD outbreaks in the Argentine territory between July 2000 and April 2001. In July 2003, the OIE recognized the Argentine territory located north of the Rio Negro (Northern Argentina) as FMD‑free where vaccination is practised.[85] In August 2003, the recognition was suspended as a result of an FMD outbreak in the Province of Salta.[86] It was reinstated in 2005[87] and suspended again in 2006 as a result of one further FMD outbreak in the Province of Corrientes.[88] Northern Argentina's disease status of FMD‑free where vaccination is practised was reinstated in 2007[89] and has been renewed annually thereafter. Finally, in 2011 the OIE recognized the border protection zone established along the Argentine border with Bolivia, Paraguay and Brazil as FMD‑free where vaccination is practised.[90]

2.5.1.2  Patagonia

2.37.  Patagonia South has not had an FMD outbreak since 1976, whereas Patagonia North B had its last outbreak in 1994.[91] In 2002, the OIE recognized Patagonia South as FMD‑free where vaccination is not practised.[92] In 2007, the same recognition was extended to Patagonia North B.[93]

2.5.2  United States

2.38.  The United States had its last FMD outbreak in 1929.[94] The United States has been FMD‑free for over eighty years and does not vaccinate its cattle or other FMD‑susceptible species.[95] The United States is designated by the OIE as an area that is FMD‑free where vaccination is not practised.

3  Parties' requests for findings and recommendations

3.1.   Argentina argues that the measures at issue are SPS measures covered by Article 1.1 and Annex A(1)(a).

3.2.  Argentina requests the Panel to find that the application of the prohibitions contained in 9 CFR 94.1(b) and the 2001 Regulations to importation of fresh (chilled or frozen) beef from Argentina:

·        is inconsistent with the United States' obligations under Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, and 10.1 of the SPS Agreement;

·        is inconsistent with the United States' obligations under Articles I:1 and XI:1 of the GATT 1994.

3.3.  Argentina requests that, to the extent the Panel were to find that the application of the prohibitions contained in 9 CFR 94.1(b) to importation of Argentine fresh (chilled or frozen) beef is inconsistent with any of the provisions of the covered Agreements, it also find that the 2001 Regulations are, by implication, inconsistent with the same provisions because they bear an "instrumental relationship" with the prohibitions under 9 CFR 94.1(b).[96]

3.4.  Argentina further requests that the Panel find that the application of the prohibitions contained in 9 CFR 94 to importation of animals, meat and other animal products from the Patagonia region:

·        is inconsistent with the United States' obligations under Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, and 10.1 of the SPS Agreement;

·        is inconsistent with the United States' obligations under Articles I:1 and XI:1 of the GATT 1994.

3.5.  Argentina requests the Panel to find that the United States' application of the approval procedure detailed in 9 CFR 92.2 to imports of fresh (chilled or frozen) beef from Argentina was not undertaken and completed without undue delay and is thus inconsistent with the United States' obligations under Article 8 in conjunction with Annex C(1)(a) of the SPS Agreement. Argentina further requests the Panel to find that such an approval process is inconsistent with Article 8 in conjunction with Annex C(1)(b) of the SPS Agreement because the United States: (i) neither published the standard processing period of each procedure nor did it communicate the anticipated processing to Argentina upon request[97]; (ii) did not transmit as soon as possible the results of the procedures in a precise and complete manner to Argentina so that corrective action may be taken if necessary[98]; and (iii) did not inform Argentina, upon request, of the stage of the procedures, explaining any delay.[99]

3.6.  Argentina requests the Panel to find that the United States' application of the approval procedure detailed in 9 CFR 92.2 to the request to recognize the Patagonia region as FMD‑free was not undertaken and completed without undue delay and is thus inconsistent with the United States' obligations under Article 8 in conjunction with Annex C(1)(a) of the SPS Agreement. Argentina further requests the Panel to find that such an approval process is inconsistent with Article 8 in conjunction with Annex C(1)(b) of the SPS Agreement because United States: (i) neither published the standard processing period of each procedure nor did it communicate the anticipated processing to Argentina upon request[100]; (ii) did not transmit as soon as possible the results of the procedures in a precise and complete manner to Argentina so that corrective action may be taken if necessary[101]; and (iii) did not inform Argentina, upon request, of the stage of the procedures, explaining any delay.[102]

3.7.  Finally, Argentina requests the Panel to find that Section 737 of the 2009 Omnibus Appropriations Act contributed to the United States' undue delay in approving Argentina's requests by "effectively block[ing] any progress on [its] requests before APHIS"[103] and "impeding the completion of the approval process on Argentina's two pending applications"[104], inconsistently with Article 8 and Annex C(1)(a) of the SPS Agreement.[105]

3.8.   In light of the above, Argentina requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that the United States bring its measures into conformity with its WTO obligations.

3.9.  The United States requests that the Panel reject Argentina' claims in this dispute in their entirety.

4  Arguments of the parties

4.1.  The arguments of the parties are reflected in their integrated executive summaries, provided to the Panel in accordance with paragraph 18 of the Working Procedures adopted by the Panel (see Annexes B-1, B-2, B-3 and B-4).

5  Arguments of the thiRd parties

5.1.  The arguments of Australia, Brazil, China, and the European Union are reflected in their integrated executive summaries, provided in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see Annexes C-1, C-2, C-3 and C-4). Neither India nor the Republic of Korea submitted written or oral arguments to the Panel.

6  Interim review

6.1.  On 24 February 2015, the Panel issued its Interim Report to the parties. On 10 March 2015, Argentina and the United States each submitted written requests for the review of the Interim Report. Neither party requested an interim review meeting. On 24 March 2015, both parties submitted comments on the other's requests for review.

6.2.  In accordance with Article 15.3 of the DSU, this section of the Panel Report sets out the Panel's response to the parties' requests for review of precise aspects of the Report made at the interim review stage. The Panel modified aspects of its Report in the light of the parties' comments where it considered it appropriate, as explained below. In addition, the Panel also corrected a number of clerical and other non-substantive errors throughout the Report, including those identified by the parties.[106]

6.1  Whether APHIS' review processes of Argentina's requests were undertaken and completed without undue delay

6.3.  Argentina requests that the Panel clarify its reasoning in paragraph 7.117 that some indicators may be used to gauge the reasonableness of the timing of APHIS' review processes. In Argentina's view, the Panel should expressly refer to the absence of a point of reference in APHIS' regulations, thus implying that APHIS acted improperly by not publishing a standard practice. Argentina suggests adding a footnote to APHIS' 1997 policy document, submitted as Exhibit ARG-129, which provides "an overview of the actual processing times experienced by APHIS" in applying Section 92.2 to other Members.[107] The United States opposes Argentina's request because the timeframes of APHIS' review processes for countries or regions other than Northern Argentina and Patagonia, contained in Exhibit ARG-129, are "inapposite" to the question whether APHIS' processes incurred undue delays in this dispute.[108]

6.4.  The Panel does not agree with Argentina that the discussion about the absence of a point of reference should be altered to read "absence of a point of reference in APHIS' regulations." A determination of whether a procedure incurs an undue delay under Annex C(1)(a) is not necessarily limited to an assessment of the procedures adopted by the importing Member. This is why the Panel also referred to the guidelines of the OIE in the subsequent sentence. Furthermore, Annex C(1)(b) contemplates that a Member will not publish a standard processing period, but may alternatively communicate the anticipated processing period to an applicant upon request. Therefore, we do not see the relevance of whether APHIS has a standard processing period in its own regulations. Moreover, the Panel notes that this is a general introductory paragraph to the discussion. When the Panel discusses the indicators in more detail in paragraphs 7.134 and 7.154, we refer specifically to the relevant APHIS policies and processing times experienced by other applicants. We therefore see no need to make the change Argentina requests.

6.5.  Argentina also requests that the Panel revise its characterization of Section 737 of the 2009 Omnibus Appropriations Act in paragraphs 7.139-7.140; to consider the measure's "dilatory effect" on APHIS' review processes of Argentina's requests, and to complete the analysis on Argentina's claims that Section 737 caused undue delay.[109] In particular, Argentina argues that the Secretary of Agriculture's evaluation and report to Congress referred to in Section 737 constitute "supplementary requirements" outside APHIS' review processes under 9 CFR 92.2, which lack a scientific basis and are applied solely on imports from Argentina.[110] Further, Argentina contends, the United States' representative at the SPS Committee repeatedly referred to the requirements in Section 737 to respond to Argentina's concerns concerning the timing of APHIS' review processes.[111] In light of the above, Argentina maintains that Section 737 did contribute to the alleged undue delays in APHIS' review processes.

6.6.  The United States requests the Panel to reject Argentina's request, as the Panel's reasoning in paragraphs 7.139-7.140 accurately reflects the fact that Section 737 did not prevent APHIS from continuing with its risk assessments and, in any event, ceased to have legal force after 30 September 2009.[112]

6.7.  The Panel notes that the implication of Argentina's argument is that because Section 737 is a "supplementary" requirement to APHIS' processes, it somehow ipso facto creates a "dilatory" effect on the review of Argentina's requests in a manner inconsistent with Article 8 and Annex C(1)(a). We have found that Section 737 is an SPS measure in its own right. We concur with the panel in US – Poultry (China) that such a measure is "Congress' way of exerting control over the activities of an Executive Branch agency responsible for implementing substantive laws and regulations on SPS matters."[113] We accept that in some cases the institution of such legislative review of administrative decisions could result in an undue delay. However, we do not consider that an undue delay occurs automatically whenever a legislature wishes to exert oversight authority over the executive. 

6.8.  Although the United States' representative's statements regarding the need to comply with an expired law might have been expressed more clearly, the fact remains that the law ceased to have any legal effect at the end of the 2009 fiscal year. Furthermore, as the Panel concluded, on the face of the law itself the Department of Agriculture was not prevented from completing the review process of Argentina's requests – it simply had to provide a report to Congress on the requisite factors. Based on the above, the Panel declines to make the changes requested by Argentina.

6.9.  Further, Argentina asks the Panel to modify its description of SENASA Resolution 1282/2008 in paragraph 7.168 by stating that it "did not relax" the controls between Patagonia North B and Patagonia South.[114]

6.10.  The United States opposes Argentina's request on the ground that Resolution 1282/2008 did relax controls between Patagonia North B and Patagonia South as "part of the process of merging the two separate areas into one Patagonia region".[115]

6.11.  The Panel recognizes that the use of the term "relaxed" might cause confusion and imply that the border controls were somehow diminished in effectiveness. However, on its face, Resolution 1282/2008 did modify aspects of the controls between Patagonia North B and Patagonia South as part of the process of merging the two separate areas into one region.[116] In an effort to provide more clarity, the Panel will change paragraph 7.168 to state that "Resolution 1282/2008 modified the regime of controls between Patagonia North B and Patagonia South as part of the process of merging the two separate areas into one Patagonia region …".

6.12.  Finally, Argentina requests that the Panel's analysis reflect Argentina's strong disagreement with the United States' reference to SENASA's "history of intentional concealment" of FMD outbreaks in paragraph 7.90. In particular, Argentina asks the Panel add language to the effect that Argentina considers the United States' allegations to be contradicted by the facts on record, statements made by APHIS before and after the initiation of the current proceedings, and the assessments made by the sanitary services of other Members. Furthermore, Argentina requests that the Panel add language from Argentina impugning the United States' motives in raising this issue.[117]

6.13.  The United States opposes Argentina's request. In its view, paragraph 7.90 correctly presents the United States' arguments. Further, in its opinion, the factual statements to which Argentina objects are documented in the United States' submissions and supported by the evidence on the record.[118]

6.14.  The Panel takes note of Argentina's disagreement with the characterizations made by the United States. In paragraph 7.136, the Panel has already found those characterizations to have no basis in the facts on the record. Similarly, the Panel does not believe there is a basis on the record for Argentina's characterization of the United States' motives. Furthermore, the Panel notes that paragraph 7.90 is a summary of the United States' arguments. It is not appropriate, in our view, to insert commentary from Argentina into this paragraph. However, in the interest of presenting a complete reflection of the views of the parties, the Panel will add language to paragraph 7.132 so as to reflect Argentina's strong disagreement.

6.15.  For its part, the United States requests the Panel to modify its description, in paragraph 7.157, of documents APHIS published in 2014 with respect to Argentina's request for the recognition of Patagonia under 9 CFR 94.1(a) so as to reflect their formal names.[119] In particular, the United States asks the Panel to state that on 23 January 2014 APHIS "published a risk assessment for Patagonia in a Notice of Availability that recognized the region as FMD free", and that on 29 August 2014 "APHIS published a Notice of Determination recognizing Patagonia as FMD‑free".[120]

6.16.  Argentina asserts that the Panel should reject the United States' request, as the risk analysis is not "in" the Notice of Availability, but rather constitutes a "distinct and separate" document.[121]

6.17.  The Panel wishes to ensure that its Report is clear and in that sense agrees with the United States that it should refer to the relevant documents by their official titles as published. Therefore, the Panel will make the requested changes to paragraph 7.157.

6.18.  Further, the United States requests that the Panel modify entry 27 in Tables 1 and 2, contained in paragraphs 7.120 and 7.146 respectively, by adding that, during consultations carried out pursuant to Article 4 of the DSU, the United States informed Argentina that in order to move forward with APHIS' review processes of Argentina's requests, APHIS would need to schedule a new site visit to verify the FMD conditions in Northern Argentina and Patagonia. In the same vein, the United States requests that the Panel to modify entry 30 in Tables 1 and 2, contained in paragraphs 7.120 and 7.146 respectively, to the effect that on 13 March 2013 APHIS reiterated its request for authorization to conduct a site visit in Northern Argentina and Patagonia. The United States also asks the Panel to reflect such modifications in the chronology contained in Appendix 1 to the Report.

6.19.  Argentina disagrees with the United States' requests, which it sees as "a new argument on a matter previously considered settled when the Panel issued its final timeline".[122] According to Argentina, the United States did not officially request a site visit during the consultations in November 2012, but rather did so in March 2013.[123] Further, Argentina argues, Article 4.6 of the DSU prevents the United States from basing legal arguments on the exchange between the parties during consultations.[124]

6.20.  The United States' request entails that the Panel make a conclusion as to what took place during the consultations held pursuant to Article 4 of the DSU. We recall that, under Article 4.6 of the DSU consultations are confidential. A panel is not privy to the record of those discussions and should not attempt to create one.[125] In light of the above, the Panel will not make the changes the United States requests.

6.2  The United States' appropriate level of protection for foot-and-mouth disease

6.21.  Argentina disagrees with the Panel's conclusion in paragraphs 7.377-7.387 that the language of 7 USC 8303(a), which authorizes the Secretary of Agriculture to prohibit or restrict importation or entry "of animals, articles, or means of conveyance" when this is necessary to "prevent the introduction into or dissemination within the United States of any pest or disease of livestock"[126], constitutes a valid ALOP.[127] This is because, Argentina asserts, such a statutory authorization is too "vague, formless and implicitly arbitrary".[128]

6.22.  The United States observes that Argentina is not requesting any further review on the part of the Panel; therefore, the Panel should not change paragraphs 7.377-7.387.[129]

6.23.  The Panel notes that Argentina makes its statements without making a specific request for review of the Panel's finding. Furthermore, the Panel notes that its determination of the United States' ALOP is based on arguments put forward in the United States' first written submission, its later citation to 7 USC 8303(a) as the source of the language in its first written submission, as well as an examination of the United States' actual measures. Therefore, the Panel will make no changes with respect to its conclusions on the United States' ALOP.

6.24.  Next, Argentina requests that the Panel delete paragraph 7.383, which it considers as disconnected from the arguments of the parties and the facts in dispute.[130] In its view, the Panel failed to properly characterize Argentina's position, as Argentina never argued that "the measures applied to different Members need to be identical".[131] Moreover, according to Argentina, the Panel conflates the United States' lines of argument before and after the United States presented 7 USC 8303(a) as its ALOP.[132]

6.25.  The United States disagrees with Argentina and argues that the Panel's reasoning is correct and properly reflects Argentina's arguments.[133]

6.26.  The Panel fails to see how paragraph 7.383 is inapposite to the arguments Argentina adduced. The Panel never implied that Argentina argued that measures applied to different Members need to be identical. However, Argentina did argue that APHIS' identification of different levels of risk in different Member territories had some bearing on the determination of the appropriate level of protection. It is this argument that the Panel is addressing in paragraph 7.383. In that vein, we find the paragraph and its citation to the panel report in Australia – Salmon relevant to our analysis. The Panel will not delete the paragraph.

6.27.  Finally, Argentina requests that the Panel modify the language of footnote 919 (footnote 968 in the Final Report) in the part where it states that the Panel should take into account the guidance provided by the panel report in India – Agricultural Products on the legal interpretation of the SPS Agreement "as necessary". In particular, Argentina asks the Panel to replace the words "as necessary" with the words "as appropriate".[134]

6.28.  The United States does not comment on Argentina's request.

6.29.  The Panel agrees with Argentina with respect to the language used to refer to the panel report in India – Agricultural Products. However, upon review, the Panel feels it is appropriate to move this language to the first instance where we cite to that report. Therefore, we will delete the reference in footnote 968 and make the necessary change to footnote 171.

6.3  Whether the United States took into account the objective of minimizing negative trade effects when determining its appropriate level of sanitary protection

6.30.  Argentina requests the Panel to "reconsider" its reasoning in paragraphs 7.405-7.408[135] that the United States has a right to impose a zero risk ALOP for FMD. Argentina maintains that the United States has explicitly rejected that it applies a general ALOP with zero risk; therefore, the Panel's reference is unnecessary.[136] Further, in Argentina's opinion, any suggestion on the Panel's part that a Member may adopt different ALOPs for different Members would sit at odds with prior jurisprudence on Articles 2.3, 5.5, and 5.6 of the SPS Agreement.[137] Finally, Argentina argues that the Appellate Body's finding in Australia – Salmon referred to by the Panel is a dictum that does not prevent a conclusion that a Member is required properly to articulate its ALOP under Article 5.4.[138]

6.31.  The United States disagrees with Argentina, which, it argues, misunderstands the Panel's discussion in paragraphs 7.405-7-408. According to the United States, the Panel's central point in those paragraphs is not that the United States does not apply an ALOP with zero risk, but rather that Argentina has not demonstrated that the United States failed to take into consideration the objective of minimizing negative trade effects when determining its ALOP.[139] For the United States', the Panel correctly found that even the adoption of a zero ALOP is not sufficient to show that a Member failed to consider the objective of minimizing negative trade effects.[140]

6.32.  Argentina's request for review misconstrues the Panel's reasoning. We recognize that the reasoning of the Appellate Body in Australia – Salmon is written in the context of explaining an un-appealed portion of the panel report in that case. We nevertheless find value in the Appellate Body's clarification that the reasoning of that panel should not be construed to mean that a Member may not adopt a "zero risk" ALOP. In that light, we continue to find the reasoning persuasive.

6.33.  The reference to a Member's right to impose an ALOP with zero risk is not related specifically to the facts of this case or the United States' ALOP for FMD, which the Panel has concluded is not zero. Rather, the Panel is using this conclusion – the right of a Member to have a zero risk ALOP – as an interpretative tool to assist the Panel in understanding what is required to establish a prima facie case under Article 5.4. The Panel maintains its conclusion that, in light of the reasoning of the Appellate Body in Australia – Salmon, Argentina's allegation that the United States treats Argentina "as if" the United States' ALOP were zero is not sufficient, in and of itself, to establish a prima facie case of inconsistency with Article 5.4.

6.34.  Finally, the Panel can find nowhere in paragraphs 7.405-7.408 where it suggests that a Member may adopt different ALOPs for different Members. Indeed, it is Argentina who claims, in its arguments, that this is what the United States has done and that such conduct somehow relates to the obligation in Article 5.4. Argentina is correct that accepting such ability would depart from the interpretations of prior panels of Article 5.5 – which is the provision of the SPS Agreement that deals with the consistent application of the concept of the ALOP. We note that Argentina did not make a claim under Article 5.5.

6.35.  Based on the foregoing, the Panel will not reconsider its reasoning in these paragraphs. 

6.4  Whether the United States' measures are more trade-restrictive than required to achieve the United States' ALOP

6.36.  The United States request that the Panel modify its description of the United States' argument in paragraph 7.421 with respect to the relationship between Articles 5.6 and 5.7 of the SPS Agreement. Specifically, it asks the Panel to specify that, in the United States' view, an assessment of a less trade-restrictive alternative under Article 5.6 could not be completed as of the date of the Panel's establishment due to the insufficiency of the scientific evidence available at that time, which made the United States' measures fall within the scope of Article 5.7.[141]

6.37.  Argentina opposes the United States' request on the ground that it contains "factually inaccurate statements and arguments … not previously made".[142] For Argentina, the United States' argument that the insufficiency of the evidence concerning Argentina's ability to mitigate and control FMD at the time of the Panel's establishment justified the adoption of a "valid provisional measure" under Article 5.7 constitutes a new argument.[143]

6.38.  The Panel notes that the United States did make these arguments before the Panel and sees no reason not to include them in the summary of the United States' arguments. Therefore, we will make the requisite modifications to paragraph 7.421. The Panel takes no position on the United States' view.

6.39.  The United States also requests that the Panel modify its description of the United States' argument in paragraph 7.426 with respect to the 2014 risk evaluations for Northern Argentina and Patagonia submitted by APHIS during these proceedings. In particular, the United States asserts that it did not argue that the documents in question were outside the Panel's consideration, but rather that since the information contained therein postdates the date of the Panel's establishment, it cannot be used to support Argentina's argument that the scientific evidence was sufficient on that date.[144]

6.40.  Argentina requests that the Panel reject the United States' request, because the United States has not previously expressed that opinion. Argentina also notes that there is a great deal of information in those exhibits that pre-dated the Panel's establishment.[145]  

6.41.  As we understand it, the requested change is to add a summary of the United States' response to Panel question No. 53 following the second substantive meeting, and thus is not a new argument raised during the Interim Review stage. Therefore, we see no reason not to include the response in the summary of the United States' arguments and will make the appropriate modification to paragraph 7.426.

6.5  Special and differential treatment

6.42.  Albeit agreeing with the Panel's conclusion in paragraphs 7.689-7.691 that Article 10.1 of the SPS Agreement imposes a positive obligation on Members, Argentina expresses the concern that the Panel's interpretation of said obligation "sets the bar so high" for a complaining Member that the provision may become de facto unenforceable.[146]

6.43.  The United States observes that Argentina does not make any request for review; therefore, the Panel should not change the paragraphs in question.[147]

6.44.  The Panel notes that Argentina makes no specific request for review with respect to these paragraphs. The Panel also recalls that it does not address the burden of proof under Article 10.1 in the paragraphs referred to by Argentina. Therefore, the Panel will not make any changes.

6.45.  Argentina requests that the Panel reconsider its finding in paragraphs 7.695-7.700 that the Appellate Body's interpretation of the word "consider" in China – GOES does not provide guidance as to the allocation of the burden of proof under Article 10.1 and "adopt the standard and approach found in the Appellate Body Report in China – GOES".[148]. For Argentina, the fact that the Panel did not follow the Appellate Body's approach and relied instead on the panel in EC – Approval and Marketing of Biotech Products risks "setting an evidentiary basis that cannot be met" by most complaining Members.

6.46.  The United States asks the Panel to reject Argentina's request, as it considers that the Panel properly relied on a "solidly reasoned panel report" relating to Article 10.1 instead of drawing upon "inapposite reasoning" in another report.[149]

6.47.  The Panel disagrees with Argentina and will not accede to its request. First, as explained in paragraph 7.697, the reasoning of the panel in EC – Approval and Marketing of Biotech Products is directly relevant. This cannot be said of an Appellate Body report dealing with similar language but within the very specific context of the Anti-Dumping and SCM Agreements. Second, the Panel specifically stated in paragraph 7.698 that while the absence of documentation is not sufficient on its own to make a prima facie case of inconsistency with Article 10.1, it is relevant evidence and has probative value particularly when a developing country has brought its special need to the attention of the importing Member. The Panel does not view this as an insurmountable bar to establishing a claim under Article 10.1.

6.48.  Finally, Argentina requests that the Panel delete the last three sentences of paragraph 7.710, where it states that Article 10.1 imposes an obligation not only on developed country Members, but indeed on all Members. In Argentina's view, the Panel's reading of the provision at issue is not supported by the plain meaning of its terms read in their context. Moreover, Argentina contends that the effect of the Panel's interpretation would be to "engender broader support for eviscerating the effectiveness of the provision by scaring developing country Members into thinking it would imply fiscal and resource commitments beyond their means".[150] Argentina accepts that the types of assistance it refers to might be "more of the nature" of what is covered by Article 9.2. However, Argentina argues that the Panel's reasoning would thus also implicitly undermine Article 9. [151]

6.49.  The United States opposes Argentina's request. In its view, the language of Article 10.1 does not limit the applicability of the obligations therein to developed country Members.[152]

6.50.  The Panel agrees with the United States that the language of Article 10.1 nowhere suggests that the obligations contained therein only attach to developed country Members. We disagree with Argentina's argument that it is the Panel's reading of the provision which would impose an obligation on developing countries to provide assistance to their trading partners. The Panel explicitly noted in paragraph 7.710 that "it would be difficult to find that Article 10.1 includes an obligation for the importing Member to take specific action such as correcting and overcoming failures of capacity in the exporting developing country." This language does not support Argentina's argument that the Panel's interpretation could lead to fiscal and resource commitments being imposed on developing and least developing country Members. However, in the interest of clarity the Panel will amend paragraph 7.710 to specify that the obligations relating to technical assistance fall under Article 9 and will delete the reference to which Members the obligation in Article 10.1 applies.

6.6  Argentina's claims under the GATT 1994

6.51.  Without making a specific request for review, Argentina expresses its strong disagreement with the Panel's decision in paragraphs 7.730-7.732 to exercise judicial economy on its claims under Article XI:1 of the GATT 1994. In Argentina's opinion, the "outright prohibition" maintained by the United States on imports of FMD‑susceptible animals and animal products constitutes a "flagran[t]" example of violation of Article XI:1.[153]

6.52.  The United States observes that Argentina does not make any request for review; therefore, the Panel should not change the paragraphs in question.[154]

6.53.  The Panel disagrees with Argentina that providing a finding on Articles I and XI of the GATT 1994 would aid in the resolution of this dispute. As noted in paragraph 7.730 of the Report, all prior panels, except one[155], before which claims have been raised under the SPS Agreement as well as the GATT 1994 have declined to rule on the GATT 1994 claims. All those panels considered that such rulings would not add anything more to the positive resolution of the dispute. The rulings of those panels are consistent with Article 2.4 of the SPS Agreement which states that all SPS measures which conform to the provisions of the SPS Agreement shall be presumed to be in accordance with the obligations in the GATT 1994. We will modify paragraph 7.730 to further clarify our decision in this regard by making specific reference to Article 2.4 of the SPS Agreement.

7  Findings

7.1  Order of analysis

7.1.  Before commencing the analysis of Argentina's legal claims, we first consider the order in which we will address such claims.

7.2.  In this dispute, Argentina has made claims under Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 8, 10.1, and Annex C(1) of the SPS Agreement as well as under Articles I:1 and XI:1 of the GATT 1994.[156] Furthermore, when responding to Argentina's claims under the SPS Agreement, the United States raises Articles 5.7 and 6.3. Additionally, in response to Argentina's claims under the GATT 1994, the United States invokes the General Exception in Article XX(b) of the GATT 1994.

7.3.  The Panel must decide in what order it will examine compliance with obligations under two separate covered agreements (SPS and GATT 1994) as well as the order in which it will examine the claims within the SPS Agreement and the GATT 1994.

7.1.1  Main arguments of the parties

7.4.  Argentina challenges under the SPS Agreement the United States' measures that impose a prohibition on all ruminant and swine products. In particular, Argentina challenges the imposition of the prohibition on fresh (chilled or frozen) beef from Northern Argentina and on ruminants, swine, and products thereof from the Patagonia region (both Patagonia South and Patagonia North B). With the exception of claims with respect to regionalization under Article 6, the claims are the same for both sets of products. Argentina presents them in the following order: Articles 1.1, 3.1, 3.3, 5.1, 5.2, 2.2, 5.7, 5.4, 5.6, 2.3, 6.1 and 6.2 (for Patagonia) and 10.1. Furthermore, Argentina challenges, under Article 8 and Annex C(1), the alleged "undue delay" by the United States in reviewing Argentina's requests with respect to both Northern Argentina and Patagonia.

7.5.  The United States, for its part, argues that the main point of Argentina's claims relates to the timeliness of APHIS' process for determining whether and under what conditions allowing imports from Argentina and/or Patagonia would satisfy the United States' ALOP for FMD.[157] The United States maintains that Argentina does not dispute that the import prohibition on FMD‑susceptible animals and animal products from Argentina was warranted at the time of adoption.[158] Therefore, the United States argues that the Panel should begin its analysis with the two provisions of the SPS Agreement that it believes concern the timeliness of APHIS' process – namely Annex C(1)(a) and Article 5.7.[159]

7.6.  The United States argues that an examination of these provisions is what is necessary to resolve this dispute[160], and maintains that even if the Panel were to see the need to further address Argentina's other claims, these two provisions should be placed first in the analysis to avoid "contorting procedural concerns into substantive ones."[161] Thus, the United States proposes the following order: Article 8 and Annex C(1), Article 5.7, if necessary Articles 5.1, 5.2, 2.2, 5.4, 5.6, 2.3, 3.1, 3.3, 6.1, 6.2, and 10.1, and GATT 1994 Articles I:1 and XI:1. [162]

7.1.2  Analysis by the Panel

7.7.  With respect to the order between the claims under the GATT 1994 and the SPS Agreement, we note that the parties did not provide particular argumentation as to this sequencing. We do note that Argentina presented its claims under the SPS Agreement first and only then mentioned the GATT 1994. Furthermore, we note that one of the United States' defences to the claim under Articles I:1 and XI:1 of the GATT 1994 is that, in the light of Article 2.4 of the SPS Agreement, its measures are consistent with the GATT 1994 by virtue of being consistent with the SPS Agreement.[163]

7.8.  We concur with the panel in India – Autos that it is important to consider, first, if a particular order of analysis is compelled by principles of valid interpretative methodology that, if not followed, might constitute an error of law.[164] That panel also noted that in considering the order selected for examination of the claims, a panel should be aware that the order of analysis may have an impact on the potential to apply judicial economy.[165]

7.9.  The Appellate Body enunciated in EC – Bananas III the test that should be applied to determine the proper order of analysis where two or more provisions from different covered Agreements appear a priori to apply to the measure in question. According to the Appellate Body, the provision from the Agreement that "deals specifically, and in detail" with the measures at issue should be analysed first.[166]

7.10.  In EC – Hormones, where claims under both the GATT 1994 and the SPS Agreement were raised by the complainant, the panel, in a finding not reviewed by the Appellate Body, considered that the SPS Agreement was to be addressed first because it "specifically addresses the type of measure in dispute".[167] This approach was also followed by the panels in Australia – Salmon[168], EC – Approval and Marketing of Biotech Products[169], US – Poultry (China)[170], and India – Agricultural Products.[171]

7.11.  The order of analysis of the claims before us therefore depends on whether the Panel finds that the United States' measures are SPS measures within the meaning of Article 1 and Annex A of the SPS Agreement. If so, pursuant to the reasoning in EC – Hormones and followed in Australia – Salmon and other disputes, the SPS Agreement would be considered to constitute lex specialis as it "deals specifically, and in detail" with the type of measure at issue and should thus be analysed first.[172]

7.12.   In light of these considerations, we will commence our analysis by determining whether the United States' measures are SPS measures within the scope of the SPS Agreement. If they are, we will proceed to examine Argentina's claims under that Agreement before then turning to its claims under the GATT 1994.

7.13.  With respect to the order of analysis of Argentina's claims under the SPS Agreement, the Panel sees potential problems with the orders of analyses proposed by both parties. We understand from the Appellate Body Report in US – Zeroing (EC) (Article 21.5 – EC) that in fulfilling their duties under Article 11 of the DSU, panels may "depart from the sequential order suggested by the complaining party, in particular, when this is required by the correct interpretation or application of the legal provisions at issue."[173] Indeed, the Appellate Body has stated that, as a general rule, panels are free to structure the order of their analysis as they see fit[174], provided that their analysis is consistent with the "structure and logic" of the provisions at issue in each dispute.[175]

7.14.  Argentina argues that the Panel should begin its analysis with Argentina's claims under Article 1.1. The Panel has already noted that it is crucial to begin the analysis with a determination of whether the SPS Agreement is applicable – and thus an examination of whether the challenged measures are SPS measures within the meaning of Article 1 must be the Panel's starting point.[176] However, Argentina focuses not on the applicability of the SPS Agreement set forth in the first sentence of Article 1.1, but rather on the obligation in the second sentence that SPS measures "shall be developed and applied in accordance with the provisions of this Agreement". As will be discussed further below, Argentina's claim under Article 1.1 can only be sustained if the challenged measures are found to be inconsistent with one of the provisions of the SPS Agreement. Therefore, it would make sense to address this claim after the Panel has completed its analysis of Argentina's other claims under the SPS Agreement.

7.15.  The United States, for its part, argues that the Panel should begin with Article 8 and Annex C and then move to Article 5.7, and then, only if necessary, the rest of the provisions. The United States argues that determinations under these three provisions could resolve the entire dispute, without the Panel having to address Argentina's other claims, because in the United States' view Argentina's complaint is essentially about the timeliness of the United States' regulatory decision-making rather than the content of the decision. According to the United States, this "timeliness" issue is properly addressed under Article 8 and Annex C and Article 5.7.

7.16.   We note that Argentina has challenged not only the length of the application process, but also the continued maintenance of the import prohibition itself. Furthermore, Argentina argues that the United States has discriminated between Argentina and other WTO Members with respect to the United States' processing of requests for authorization to import. Therefore, regardless of whether the United States' measures fall within the ambit of either Article 5.7 or Article 8 and Annex C, they would not be exempt from the other obligations cited by Argentina, including to apply those measures in a manner that does not arbitrarily or unjustifiably discriminate between Members[177], adaptation to regional conditions, and special and differential treatment. Under the circumstances, we cannot agree with the United States that the only provisions relevant to a positive resolution to this dispute are those that the United States identifies as the ones related to the "timeliness" of its review of Argentina's requests.

7.17.  At the same time, we recognize that the analysis under Article 8 will involve many factual determinations that are relevant to the Panel's analysis under a number of the other provisions cited by Argentina and the United States. In particular, in the context of Argentina's claim under Article 8 and Annex C(1)(a), the Panel will have to examine the length of time taken to complete the relevant United States' approval procedures to determine if they were undertaken and completed without undue delay. This will require an analysis of the entire evaluation process conducted by APHIS and the sufficiency of the information the Argentine authorities provided.

7.18.  In light of the above, the Panel will begin its analysis with whether the challenged measures are SPS measures within the meaning of Article 1 and thus subject to the disciplines of the SPS Agreement. If we find that the measures are subject to the SPS Agreement, we will then proceed to analyse Argentina's claims under Article 8 and Annex C(1)(a) and (b).

7.19.  Once we have concluded our analysis under Article 8 and Annex C, we will turn to Argentina's other claims in the following order: harmonization (Articles 3.1 and 3.3);scientific evidence (Article 5.7 and, if necessary, Articles 5.1 and 5.2, and Article 2.2[178]), appropriate level of protection (Articles 5.4 and 5.6,); discrimination (Article 2.3); adaptation to regional conditions (Articles 6.1 and 6.2); special and differential treatment (Article 10.1), and any consequential violations under Articles 1.1 and 3.3.

7.20.  With respect to the order of analysis of Argentina's claims under the GATT 1994, the Panel will address them in the in the order in which the provisions appear in the GATT 1994 as well as the defence raised by the United States under Article XX(b) to both claims.

7.2  Whether the United States' measures are SPS measures

7.2.1  Relevant legal provisions

7.21.  Article 1 of the SPS Agreement establishes the scope of application of the Agreement, and reads as follows:

1.    This Agreement applies to all sanitary and phytosanitary measures which may, directly or indirectly, affect international trade. Such measures shall be developed and applied in accordance with the provisions of this Agreement.

2.   For the purposes of this Agreement, the definitions provided in Annex A shall apply.

7.22.  In turn, Annex A(1) of the SPS Agreement sets forth the definition of an SPS measure as "[a]ny measure applied":

(a)     to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms;

(b)     to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;

(c)     to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or

(d)     to prevent or limit damage within the territory of the Member from the entry, establishment or spread of pests.

Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria, processes and production methods, testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; packaging and labelling requirements directly related to food safety.

7.2.2  Main arguments of the parties

7.2.2.1  Argentina

7.23.  Argentina argues that all the measures at issue in this dispute are sanitary measures within the meaning of Article 1.1 and Annex A of the SPS Agreement.

7.24.  In particular, Argentina claims the application of the prohibitions contained in 9 CFR 94.1(b) to imports of fresh (chilled or frozen) beef from Argentina, as well as the 2001 Regulations through which APHIS imposed such prohibitions, are applied to protect the health and life of animals from risks arising from the entry, establishment and spread of FMD within the United States territory.[179] Moreover, Argentina argues that because the United States' market has been closed to Argentine fresh (chilled or frozen) beef for more than 11 years, this directly affects international trade.[180] Accordingly, Argentina asserts that the measures at issue are sanitary measures covered by Article 1.1 and Annex A of the SPS Agreement.[181] Argentina maintains that the measures in question are inconsistent with Article 1.1 of the SPS Agreement because they are not applied in accordance with the provisions of that agreement.[182]

7.25.  Further, in Argentina's opinion, the application of the prohibitions contained in 9 CFR 94 to imports of FMD‑susceptible animals and animal products from Patagonia is an SPS measure because such a measure is applied to protect the health and life of animals within the United States from the risks arising from the entry, establishment and spread of FMD[183] and directly affects international trade in such products.[184] Argentina claims that the measure at issue violates Article 1.1 of the SPS Agreement because it is not applied in accordance with the provisions of that agreement.[185]

7.26.  With respect to APHIS' application of the approval procedures set forth in 9 CFR 92.2 to Argentina's requests for importation of Argentine fresh (chilled or frozen) beef and for the recognition of Patagonia as FMD‑free, Argentina notes that successfully completing such procedures is a prerequisite for obtaining authorization to import the relevant products into the United States.[186] In turn, Argentina argues, the procedures set forth in 9 CFR 92.2 are aimed at ensuring that the requirements under 9 CFR 94, which allow importation of animal and animal products only from those countries and regions that APHIS has declared free of FMD, are met.[187] Therefore, according to Argentina, such procedures are SPS measures within the meaning of Article 1.1 and Annex A.[188]

7.27.  Argentina also claims that Section 737 of the 2009 Omnibus Appropriations Act contributed to the undue delays in APHIS' review processes of its two requests.[189] For Argentina, the references in Section 737 to "domestic animal health aspects that are administered by APHIS" indicate that the stated objective of the Section is to protect animal life and health within the United States from the entry, establishment, or spread of FMD, thus constituting an SPS measure within the meaning of Article 1.1 and Annex A.[190] In Argentina's view, this is buttressed by the textual similarities between Section 737 and Section 727 of the 2009 Omnibus Appropriations Act and by the fact that the latter was found to be an SPS measure under Article 1.1 and Annex A by the panel in US – Poultry (China).[191]

7.2.2.2  United States

7.28.  The United States does not disagree with Argentina that the measures at issue are SPS measures which fall within the ambit of the SPS Agreement.[192] Indeed, the United States confirms that its measures "are taken for a purpose set forth in Annex A(1)(a) of the SPS Agreement".[193]

7.29.  The United States asserts that because Section 737 "ceased to exist before this dispute was initiated" it is not within the terms of reference of this dispute.[194] In the United States' view, to be a measure subject to the Panel's terms of reference, "the measure must be in force when the [DSB] established the panel".[195] 

7.2.3  Analysis by the Panel

7.30.  At the outset, we note that we bear an obligation, pursuant to Article 11 of the DSU, to make an objective assessment of the applicability of the relevant agreement. Thus, we proceed with an examination of Article 1 to establish whether we agree with the parties on this threshold issue. We concur with previous panels that Article 1 of the SPS Agreement provides for two requirements that must be fulfilled for the SPS Agreement to apply: (i) the measure at issue must be an SPS measure within the meaning of Article 1 and Annex A(1) of the SPS Agreement; and (ii) it must directly or indirectly affect trade.[196] The Panel will thus consider, in turn, whether the United States' measures comply with both requirements.

7.2.3.1  Whether the United States' measures are SPS measures within the meaning of Annex A(1)

7.31.  The Appellate Body noted in its report in Australia – Apples that "[a] fundamental element of the definition of 'SPS measure' set out in Annex A(1) is that such a measure must be one 'applied to protect' at least one of the listed interests".[197] The Appellate Body further explained that the word "applied" points to the application of a measure, suggesting that a relationship between the measure and one of the objectives identified in Annex A(1) must be present in the measure itself, or otherwise evident from circumstances related to the application of the measure.[198] Consequently, the Appellate Body concluded by finding that "the purpose of a measure is to be ascertained on the basis of objective considerations"[199] and a clear and objective relationship must exist between the measure in question and the purposes identified in Annex A(1).[200] In particular, the Appellate Body clarified that whether a measure is "applied … to protect" in the sense of Annex A(1)(a) "must be ascertained not only from the objectives of the measure as expressed by the responding party, but also from the text and structure of the relevant measure, its surrounding regulatory context, and the way in which it is designed and applied."[201]

7.32.  The second sentence of Annex A(1) sets forth that SPS measures may take the form of "laws, decrees, regulations, requirements and procedures". This list is modified by the terms "including" and "all relevant". The Appellate Body found that the use of these terms in the second sentence means that measures of a type not expressly listed may nevertheless constitute SPS measures when they are "'relevant', that is, when they are 'applied' for a purpose that corresponds to one of those listed in subparagraphs (a) through (d). Conversely, the fact that an instrument is of a type listed in the last sentence of Annex A(1) is not, in itself, sufficient to bring such an instrument within the ambit of the SPS Agreement."[202] With respect to the latter half of the second sentence, the Appellate Body concluded that:

[I]t is a list of examples of measures that may fall within the definition of an SPS measure, provided always that the measure manifests a clear and objective relationship with (is "applied" for) at least one of the purposes set out in subparagraphs (a) through (d). The list thus serves to illustrate, through a set of concrete examples, the different types of measures that, when they exhibit the appropriate nexus to one of the specified purposes, will constitute SPS measures and, accordingly, be subject to the disciplines set out in the SPS Agreement.[203]

7.33.  Therefore, the determination of whether a measure is an SPS measure requires an inquiry into whether the measure is of the type that may fall within the definition of an SPS measure and whether it exhibits an appropriate nexus to one of the specified purposes in subparagraphs (a) through (d). The Panel will thus examine each of the challenged measures for these elements.

7.2.3.1.1  The 2001 Regulations and 9 CFR 94

7.34.  The 2001 Regulations and 9 CFR 94 as published in the Federal Register of the United States and the Code of Federal Regulations, respectively, fall within the types of measures included in the indicative list of sanitary and phytosanitary measures set forth in the second sentence of Annex A(1).

7.35.  Argentina has indicated, and the United States has not disagreed, that the purpose of the 2001 Regulations and of 9 CFR 94 is that identified in Annex A(1)(a) – i.e. to protect the health of susceptible animals (ruminants and swine) within the territory of the United States from risks arising from the entry, establishment or spread of FMD.[204] This purpose can be derived from the text of the measures itself. The 2001 Regulations both refer specifically to the recent outbreak of FMD in Argentina and to the need to "protect the livestock of the United States from foot-and-mouth disease".[205] Furthermore, the statutory authority for the Department of Agriculture to implement 9 CFR 94 derives from the permission to prohibit or restrict importation or entry "of animals, articles, or means of conveyance" set forth in 7 USC 8303(a) if such actions are necessary to prevent the introduction or dissemination of pests or diseases that affect livestock.[206] Thus, the 2001 Regulations and 9 CFR 94 manifest a clear and objective relationship with the purpose set forth in Annex A(1)(a).

7.36.  As the 2001 Regulations and 9 CFR 94 fall within the indicative list of measures in the second sentence of Annex A(1) and are applied for the purpose described in Annex A(1)(a), we find that the 2001 Regulations and 9 CFR 94 are SPS measures as defined in Annex A(1).

7.2.3.1.2  Application of the procedures set forth in 9 CFR 92.2 to Argentina's requests

7.37.  The procedure in 9 CFR 92.2 is part of the process to determine whether products from a country or region pose a particular risk of introduction or dissemination of a pest or livestock disease into the United States. The procedure is set forth in the United States' Code of Federal Regulations and thus could fall within the reference to either "regulations" or "procedures" in the second sentence of Annex A(1).

7.38.  9 CFR 92.2 describes the information APHIS requires and the process APHIS follows to determine which countries or regions will be authorized to import (those listed in 9 CFR 94.1(a)) and which countries or regions are subject to the prohibition (9 CFR 94.1(b)). As we have concluded that 9 CFR 94 is applied for the purpose set forth in Annex A(1)(a), we likewise conclude that 9 CFR 92.2 also manifests a clear and objective relationship with that purpose. Thus, 9 CFR 92.2 is an SPS measure as defined in Annex A(1).

7.39.  However, although 9 CFR 92.2 is de jure applied to protect animal life or health from the entry, establishment or spread of FMD, we note that Argentina is not challenging the content of 9 CFR 92.2 "as such", but rather APHIS' application of these procedures to Argentina's requests for authorization to import. Therefore, the Panel must determine whether the measure "as applied" satisfies the definition in Annex A(1).

7.40.  In our view, the reference to "procedures" in the second sentence of Annex A(1) is broad enough to encompass both procedures of general application as well as the specific implementation of a procedure in a particular instance.[207] Furthermore, we recall the consistent practice in WTO dispute settlement pursuant to Article 3.3 of the DSU that any act or omission attributable to a Member may be challenged as a "measure" for dispute settlement purposes.[208] Panels and the Appellate Body have in many instances permitted Members to challenge the specific application of particular laws, regulations, procedures or practices as measures.[209] We see no reason why this would be different in the context of the SPS Agreement.

7.41.  Therefore, we find that the application of 9 CFR 92.2 to APHIS' review of Argentina's requests for authorization to import is an SPS measure as defined in Annex A(1).

7.2.3.1.3  Section 737 of the 2009 Omnibus Appropriations Act

7.42.  Turning to Section 737 of the 2009 Omnibus Appropriations Act (Section 737), Argentina argued in its response to the Panel's questions that such provision is an SPS measure that falls within the scope of Annex A(1)(a).[210] We note that Section 737 directly regulates the authority of the Secretary of Agriculture to approve the importation of the relevant products from Argentina and that it prevents him from taking such action until he has "reviewed the domestic animal health aspects of the pending proposal to allow the importation of such products into the United States and has issued a report to the Committees on the findings of such review."[211] Thus, the purpose of Section 737 is directly linked to the risks to health of domestic animals in the United States from the potential importation of the relevant Argentine or Patagonian products pursuant to the proposal pending at the time, which was the Proposed Rule to designate Patagonia as FMD‑free and to permit importation according to certain protocols.

7.43.  With respect to the second sentence of Annex A(1), we note that Section 737 is a provision of a law enacted by Congress and signed by the President of the United States. As such, it falls within the scope of "laws, decrees, regulations, requirements and procedures" in Annex A(1).[212] Given the relationship between the operation of Section 737 and the requirement that the Secretary of Agriculture assure Congress through a specific report on the animal health aspects of permitting importation of ruminant and swine products from Argentina, we find that a sufficient nexus exists between this law and the purpose set forth in Annex A(1)(a). Therefore, the Panel finds that Section 737 is an SPS measure as defined in Annex A(1).

7.2.3.2  Whether the United States' measures directly or indirectly affect international trade

7.44.  We now turn to whether the measures imposed by the United States constitute SPS measures that directly or indirectly affect international trade. As explained by the panel in India – Agricultural Products, an import ban, by its very nature, is intended to affect international trade.[213] The panels in EC – Hormones went further and concluded that "it cannot be contested that an import ban affects international trade".[214]

7.45.  Although the United States argues that its measures are based on international standards and that it is diligently working to analyse Argentina's applications to import, it does not dispute that the measures in place at the time of establishment of the Panel were total import prohibitions on fresh (chilled or frozen) beef from Northern Argentina and on ruminant and swine products from Patagonia.

7.46.  In particular, we note that the 2001 Regulations and the current version of 9 CFR 94.1(b) specifically prohibit the importation of the relevant products from either Northern Argentina or Patagonia. Further, the application process in 9 CFR 92.2 specifically states that any existing prohibition remains in place unless and until the outcome of the process leads to a decision to authorize imports. Additionally, Section 737 prevents the Secretary of Agriculture from completing the process under 9 CFR 92.2 until he submits a report to Congress. Therefore, the extension of the time required for the review or the lack of any conclusion to the review of Argentina's applications for imports of fresh (chilled or frozen) beef from Northern Argentina and FMD‑susceptible animals and animal products from Patagonia has the effect of keeping the prohibition in place.

7.47.  Thus, consistent with the understandings of the panels in India – Agricultural Products and EC – Hormones, we conclude that the measures at issue directly or indirectly affect international trade.

7.2.4  Conclusion

7.48.  The Panel has determined that the United States' measures are applied to achieve the purpose set forth in Annex A(1)(a), that they take one of the forms listed in the main paragraph of Annex A(1), and that they directly or indirectly affect international trade. Therefore, the Panel finds that the United States' measures are SPS measures subject to the disciplines of the SPS Agreement.

7.49.  With respect to the consequential claim under Article 1.1, we will return to this after we have completed our analysis of Argentina's substantive claims.

7.3  Control, inspection and approval procedures

7.3.1  Relevant legal provisions

7.50.  Article 8 of the SPS Agreement, entitled "Control, Inspection and Approval Procedures", reads as follows:

Members shall observe the provisions of Annex C in the operation of control, inspection and approval procedures, including national systems for approving the use of additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.

7.51.  In turn, Annex C(1) of the SPS Agreement, which is also entitled "Control, Inspection and Approval Procedures", reads, in relevant part:

1.   Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:

(a)     such procedures are undertaken and completed without undue delay … ;

(b)    the standard processing period of each procedure is published or that the anticipated processing period is communicated to the applicant upon request; when receiving an application, the competent body promptly examines the completeness of the documentation and informs the applicant in a precise and complete manner of all deficiencies; the competent body transmits as soon as possible the results of the procedure in a precise and complete manner to the applicant so that corrective action may be taken if necessary; even when the application has deficiencies, the competent body proceeds as far as practicable with the procedure if the applicant so requests; and that upon request, the applicant is informed of the stage of the procedure, with any delay being explained; …

7.52.  Footnote 7 to Annex C(1) clarifies that "[c]ontrol, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification".

7.53.  As the United States has argued that the procedures at issue in this dispute are not of the type subject to the obligations in Article 8 and Annex C(1), the Panel will address, first, the question of whether Article 8 and Annex C(1) of the SPS Agreement are applicable to APHIS' review processes of Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free. If the provisions in question are applicable, the Panel will assess Argentina's claims that the United States' measures at issue are inconsistent with Article 8 and Annex C(1)(a) and C(1)(b).

7.3.2  Whether the application of the procedures set forth in 9 CFR 92.2 to Argentina's requests falls within the scope of Article 8 and Annex C(1) of the SPS Agreement

7.3.2.1  Main arguments of the parties

7.3.2.1.1  Argentina

7.54.  Argentina submits that the procedures set forth in 9 CFR 92.2 constitute an "approval procedure" within the meaning of Article 8 and Annex C of the SPS Agreement. It argues, in particular, that because imports of animals or animal products from a region or country are conditioned upon the evaluation of its FMD status under the procedures under 9 CFR 92.2[215], such procedures are "analogous to the types of procedures specifically articulated in Annex C", especially procedures for "sampling, testing and certification" listed in footnote 7 to Annex C.[216] Moreover, Argentina considers that the procedures set forth in 9 CFR 92.2 "are imposed to 'ensure'" compliance with the requirement under 9 CFR 94 that animal and animal products be imported "only from those countries and regions which APHIS has declared free of certain diseases, including FMD".[217] Therefore, the application of those procedures to Argentina's requests are subject to the obligations in Article 8 and Annex C(1).[218]

7.55.  Argentina further argues that the reference in Annex C(1) to "any procedure", which aims to "check and ensure the fulfilment of sanitary and phytosanitary measures" suggests broad construction of the scope of coverage of Article 8 and Annex C.[219] Moreover, in Argentina's view, the fact that the lists of measures enumerated in Article 8 and Annex C are introduced by the words "including" and "include, inter alia", respectively, indicates that such lists are indicative and not exhaustive.[220] Moreover, Argentina observes that, according to the Appellate Body, "measures which are not, technically, 'procedures' but which impede the process of undertaking or completing procedures, may also give rise to a violation" of Annex C(1).[221]

7.56.  Finally, Argentina takes issue with the United States' argument that the obligations in Article 8 and Annex C are limited to procedures that govern products or substances, as opposed to determinations of the FMD status of countries or regions. For Argentina, "nowhere in the text of the treaty are the words 'control, inspection and approval procedures' so narrowly qualified".[222]

7.3.2.1.2  United States

7.57.  The United States argues that Article 8 and Annex C do not apply to processes carried out pursuant to 9 CFR 92.2 because the provisions in question do not govern the determination of disease status for geographical areas, but rather address control, inspection and approval procedures for specific products.[223] In support of its contention, the United States points out that footnote 7 of Annex C makes no reference to examination of disease-free status.[224] The United States also notes that the illustrative examples in Annex C of the types of procedures covered do not include disease-free status determinations.[225] Finally, the United States argues that subparagraphs (a), (d), (e), (f), (g), and (h) of Annex C(1) provide support for its conclusion that the procedures covered by Annex C are those designed to check and ensure the fulfilment of SPS measures as applied to specific products rather than geographical areas.[226]

7.58.  Furthermore, the United States contends that Article 8 on its face applies only to control, inspection or approval procedures, and not all SPS measures.[227] According to the United States, an understanding that Article 8 and Annex C govern any measures that impose conditions on import would make Annex C applicable to every SPS measure.[228]

7.3.2.2  Main arguments of the third parties

7.3.2.2.1  Brazil

7.59.  Relying on the panel report in Australia – Salmon (Article 21.5 – Canada), Brazil considers that Article 8 and Annex C(1) apply to procedures that have been implemented to ensure the fulfilment of SPS measures, but they do not cover the "substantive measures" themselves.[229] In its view, determinations of disease status for geographical areas fall within the ambit of such provisions as they are "part of the procedures to ensure the fulfilment and application of an SPS measure".[230]

7.3.2.2.2  China

7.60.  In China's view, Article 8 and Annex C(1) of the SPS Agreement have broad coverage and do not specify or exclude any type of procedures from their application.[231] Indeed, China observes, the panel in US – Poultry (China) considered that Annex C(1) covers any procedure that is aimed at checking and ensuring the fulfilment of SPS measures.[232] China also notes that, according to the Appellate Body in Australia – Apples, Article 8 and Annex C(1) do not necessarily exclude measures other than control, inspection and approval procedures from their scope of application.[233]

7.3.2.2.3  European Union

7.61.  The European Union disagrees with the United States' contention that the rules against undue delay contained in Article 8 and Annex C of the SPS Agreement apply only to products and not to regions.[234] In the European Union's view, the language of such provisions does not contain any limitation in this regard[235] and indeed does not provide an exhaustive list of procedures that fall within their purview.[236]

7.3.2.3  Analysis by the Panel

7.62.  Article 8 requires Members to "observe the provisions of Annex C in the operation of control, inspection and approval procedures", thereby incorporating the disciplines of Annex C into the operative part of the SPS Agreement. This is consistent with the language of Article 1.3, which states that "[t]he annexes are an integral part of th[e] Agreement". Hence, the non-observance of the obligations in Annex C(1) "implies a violation of Article 8".[237]

7.63.  The parties do not disagree that the disciplines set out in 9 CFR 92.2 constitute "procedures", as they establish a specific course of action that both the applicant country or region and APHIS are required to follow in order for the latter to proceed with the "recognition of the animal health status" of that country or region.[238] We have already found that such disciplines fall within the reference to either "regulations" or "procedures" in the second sentence of Annex A(1) of the SPS Agreement.[239]

7.64.  Therefore, the issue before us is whether the United States' application of 9 CFR 92.2 to Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free within the meaning of 9 CFR 94.1(a) constitutes one of the procedures falling within the scope of Article 8 and Annex C(1).

7.3.2.3.1  "Any" procedure

7.65.  Argentina maintains that the procedures set out in 9 CFR 92.2 fall within the scope of Article 8 and Annex C(1) because they are approval procedures and because they are aimed at checking and ensuring the fulfilment of an SPS measure.[240] The United States responds that Article 8 and Annex C(1), on their face, apply only to control, inspection or approval procedures for specific products[241], and do not govern the determination of the disease status of geographical areas.[242]

7.66.  We observe first, that while both Article 8 and Annex C are entitled "Control, Inspection and Approval Procedures", the text of Annex C(1) imposes obligations on Members with respect to "any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures".[243] Thus in our opinion, a plain reading of Annex C(1) suggests that the title, while illustrative, does not confine the scope of the measures covered as the United States argues. Rather, it is necessary to examine the text of the provision itself to determine its scope, and thereby the scope of Article 8.

7.67.  We note that the provision uses the word "any" to modify the word "procedure". "Any" has been interpreted as indicating that Annex C(1) "does not specify, nor exclude, any type of 'procedures'" from its scope of application, "so long as that 'procedure' is aimed at 'checking and ensuring the fulfilment of sanitary or phytosanitary measures', and is undertaken in the context of 'control, inspection, or approval'".[244] Further, the Appellate Body in Australia – Apples stated that while "procedures are the direct target" of Article 8 and Annex C(1), "it does not follow that other types of measures are precluded, a priori, from being an appropriate target of a claim of inconsistency" with such provisions.[245] According to the Appellate Body, the provisions in question "may be infringed through measures other than the control, inspection, and approval procedures themselves", such "as actions that prohibit, prevent, or impede undertaking and completing such procedures 'without undue delay', or omissions in the form of a failure to act 'without undue delay'".[246]

7.68.  Article 8 and Annex C "cover a broad array of procedures, as the drafters of the SPS Agreement did not limit the scope of those 'procedures' to any specific type of 'approval procedures'".[247] We also note that while Article 8 and Annex C enumerate certain types of procedures as expressly falling within their ambit[248], they set forth lists introduced by the terms "including" (Article 8) and "include, inter alia" (footnote 7 to Annex C). In the context of Annex A(1) of the SPS Agreement, the Appellate Body stated that the use of such terms indicates that the list of measures contained in such a provision "is only indicative".[249] In our opinion, the same holds true for Article 8 and Annex C. The use of such terms by the drafters shows that the lists of measures contained in the two provisions at issue are merely illustrative and not exhaustive.[250]

7.69.  Having determined, consistently with previous WTO adjudicators, that the drafters intended to include a broad variety of procedures under Annex C(1) and Article 8, we see no basis in the language of those provisions that would support the United States' argument that the covered procedures are limited to those addressing products, and thus that determinations of the disease status of certain geographic regions are excluded from the scope of Article 8 and Annex C. We consider that, by contrasting region-related and product-related determinations, the United States is attempting to make a distinction without a real difference. The ultimate effect of any procedure to designate a particular region with a "disease status" is to determine what SPS measures should be applied to the products originating from that region. We can see this in the link between the prohibition in 9 CFR 94 and the evaluation procedures set forth in 9 CFR 92.2. To recall, 9 CFR 94.1(b) and 9 CFR 94.2 expressly prohibit the importation of any FMD‑susceptible animals or animal products that originate in any region where FMD is deemed to exist. In turn, under 9 CFR 94.1, FMD is deemed to exist "in all regions of the world except those declared free" by APHIS. The only way to be declared "FMD‑free" by APHIS is to undergo the procedures set forth in 9 CFR 92.2.

7.70.  Although the immediate object of the process in 9 CFR 92.2 is related to making a determination about the disease status of the region, the ultimate effect of the process within APHIS' regulatory framework is to determine whether imports will be authorized. In our view, focusing solely on the immediate object of an importing Member's procedures, while losing sight of the ultimate effect of the completion of such procedures, might enable Members to avoid the application of Article 8 and Annex C by simply parsing their regulatory processes between regional determinations and approvals to import.[251] Therefore, we conclude that the procedures in 9 CFR 92.2 are "any procedures" that fall within the scope of Article 8 and Annex C(1).

7.71.  Having found that Article 8 and Annex C(1) do not exclude determinations of the disease status of certain geographic regions from their scope of application, we note that there is one express limitation on the type of procedures falling within the scope of Article 8 and Annex C(1) – that the procedures be ones aimed at "checking and ensuring the fulfilment of sanitary or phytosanitary measures". Therefore, we now turn to assess whether the procedures under 9 CFR 92.2 are such procedures.

7.3.2.3.2  To "check and ensure" the "fulfilment" of an SPS measure

7.72.  The dictionary defines the verb "to check" as "[t]o control (a statement, account, etc.) by some method of comparison; to compare one account, observation, entry, etc., with another, or with certified data, with the object of ensuring accuracy and authenticity"; the related verb "to check on" is defined as "to examine carefully or in detail; to maintain a check on; to ascertain the truth about; … to check out, to investigate, examine for accuracy, authenticity, or a confirmation of fitness".[252] The definition of the verb "to ensure" is "[t]o make certain the occurrence or arrival of (an event), or the attainment of (a result)".[253] Finally, the verb "to fulfil" is defined as "[to p]rovide fully with what is wished for; satisfy the appetite or desire of; … Make complete, supply with what is lacking; replace (something); … Carry out, perform, do (something prescribed)".[254] In turn, as observed in paragraph 7.31 above, the Appellate Body defined an SPS measure as one "applied … to protect" at least one of the interests listed in Annex A(1) of the SPS Agreement.[255] According to the Appellate Body, the word "applied" suggests that a "clear and objective relationship" between the measure and one of the objectives identified in Annex A(1) must be present in the measure itself, or otherwise evident from circumstances related to the application of the measure, such as "its surrounding regulatory context", and the way in which it is designed and operates.[256]

7.73.  As the above definitions indicate, Article 8 and Annex C cover any procedure to make certain that a measure applied to achieve one of the objectives in Annex A(1) is fully implemented.

7.74.  We have already found above that the procedures in 9 CFR 92.2 are part of the process to determine whether products from a specific country or region pose a particular risk of introduction or dissemination of FMD into the United States.[257] Those procedures, in other words, are designed to ensure compliance with the requirement under 9 CFR 94 that FMD‑susceptible animals or animal products be imported into the United States only from countries or regions that APHIS has determined to be FMD‑free. We also found that such a requirement constitutes an SPS measure within the meaning of Annex A(1) of the SPS Agreement.[258] In turn, we note that 9 CFR 94.1 is implemented for the purpose of achieving the objective set forth in 7 USC 8303(a), to "prevent the introduction into or dissemination within the United States of any pest or disease of livestock."[259]

7.75.  In light of the above, we take the view that procedures carried out under 9 CFR 92.2 are aimed at checking and ensuring the fulfilment of another SPS measure, namely 9 CFR 94, which, in turn, is intended to achieve the objective set forth in 7 USC 8303(a).

7.3.2.3.3  Conclusion

7.76.  Based on the foregoing, we conclude that the application of the disciplines of 9 CFR 92.2 to Argentina's requests for authorization to import fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free fall within the scope of Article 8 and Annex C(1) of the SPS Agreement. Having reached this conclusion, we move on to examine Argentina's claim that there was undue delay in the way the United States undertook and completed these processes contrary to the obligations in Article 8 and Annex (C)(1)(a).

7.3.3  Whether APHIS' review processes of Argentina's requests were undertaken and completed without undue delay

7.77.  Given the length and complexity of the legal and factual arguments made with respect to this claim, the Panel will first set out the general arguments of the parties and third parties on the interpretation of the obligation in Article 8 and Annex C (1)(a) and then move on to address the arguments with respect to the alleged undue delay in the approval processes for Argentina's applications for authorization to import fresh (chilled or frozen) beef from Northern Argentina and for the Patagonia region to be designated FMD‑free.

7.3.3.1  General arguments of the parties

7.3.3.1.1  Argentina

7.78.  Argentina claims that APHIS' application of the procedures under 9 CFR 92.2 to Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free incurred undue delays and is therefore inconsistent with the requirement under Article 8 and Annex C(1)(a) of the SPS Agreement that procedures under these provisions be "undertaken and completed without undue delay".[260] In its responses to Panel questions, Argentina clarified that, in its view, such delays do not concern APHIS' initiation of the approval processes upon reception of the two requests, but rather the completion of such approval processes.[261]

7.79.  Argentina submits that, in determining whether a delay is undue, the Panel should examine the reasons for such a delay.[262] Relying on the panel report in EC – Approval and Marketing of Biotech Products, Argentina maintains that the relevant "delay" to be examined is not only one in undertaking an approval procedure, but also in finishing or concluding that procedure.[263] Moreover, in Argentina's view, amendments to approval procedures during the pendency of a request do not erase the delay incurred until that point, nor do they require that undue delay be established prior to and following such amendment.[264]

7.3.3.1.2  United States

7.80.  The United States disagrees with Argentina's focus on the overall length of time of APHIS' approval processes of Argentina's requests rather than on specific periods of delay.[265] Relying on the panel report in EC – Approval and Marketing of Biotech Products, the United States argues that an assessment of whether a delay is undue must be conducted on a case-by-case basis, taking into account all the relevant facts and circumstances.[266] The United States asserts that the length of time of the approval processes of imports of Argentine products conducted by other WTO Members is not a reliable benchmark against which to gauge APHIS' reviews, as different Members may differ in terms of the specific information they require to reach a decision and the ALOP they have determined for the risk at issue.[267]

7.81.  In the United States' view, not every delay in undertaking or completing an approval procedure is contrary to the provisions of Annex C(1)(a), but only an unjustifiable one.[268] The United States considers that this standard is equivalent in nature to that applied to assess what constitutes a "reasonable period of time" under Article 5.7 of the SPS Agreement.[269] For the United States, possible factors justifying a delay include (i) delays attributable to the applicant itself rather than to the approving Member[270]; (ii) the necessity to reasonably determine with adequate confidence whether the relevant SPS requirements have been fulfilled[271]; and (iii) the submission or supervening availability of additional relevant information at a late stage of an approval procedure.[272]

7.82.  In the United States' opinion, APHIS had the difficult task of conducting a thorough examination of Argentina's ability to prevent and control FMD within its territory.[273] It also stresses that obtaining the necessary information to proceed with the approval processes was not easy, as the data to be collected were (i) not in the United States; (ii) of substantial scope and breadth including geographical information, internal and cross-border animal movements, quarantine processes, and veterinary infrastructure; and (iii) only accessible with Argentina's cooperation.[274]

7.3.3.2  APHIS' review of Argentina's request for imports of fresh (chilled or frozen) beef from Northern Argentina

7.3.3.2.1  Argentina

7.83.  Argentina notes that it filed its request for imports of fresh (chilled or frozen) beef in November 2002[275] and that at the time of the establishment of the Panel it had not received a decision on such request despite SENASA cooperating fully with all of APHIS' requests for information and site visits.[276] Argentina argues that the United States could not need more than 11 years to evaluate the FMD status of Argentina[277], especially as the request only sought to reinstate import rights previously granted during the period 1997-2001[278] and APHIS had already reviewed the history of FMD outbreaks and other scientific evidence pertaining to Northern Argentina.[279]

7.84.   To provide a sense of what time-frame it views as reasonable for the conclusion of the process, Argentina refers to the Terrestrial Code, which provides that a period of 12 months since the most recent outbreak is a sufficient time, from an epidemiological perspective, to obtain FMD‑free status.[280] Argentina also notes that the time it took to approve Uruguay from the time of its last outbreak was two years.[281] Argentina also argues that the FMD situation in Northern Argentina is similar to Uruguay's in terms of the timing of the last outbreak and because both regions are recognized by the OIE as FMD‑free where vaccination is practised.[282] In this regard, Argentina also notes that while it had been previously authorized to export fresh (chilled or frozen) beef to the United States, Uruguay had no such previous authorization.[283] Argentina also considers that the fact that the European Union and Chile promptly reopened their markets to Argentine beef following the 2003 and 2006 FMD outbreaks is "indicative of the time reasonably necessary to conduct an evaluation for FMD".[284]

7.85.  Argentina contends that, after its site visit to Northern Argentina following the 2006 FMD outbreak in the Province of Corrientes, APHIS did not request any further information from SENASA, nor did it take any further action.[285] It also submits that, in response to a letter from Argentina, APHIS stated in September 2010 that it was "currently drafting a proposed rule that would allow the importation of fresh, chilled or frozen Argentine beef under certain conditions".[286] Similarly, Argentina observes, at the June and October 2011 sessions of SPS Committee, the United States' representative stated that APHIS had completed a risk analysis for Northern Argentina.[287] In Argentina's view, the above statements by APHIS and the United States' representative at the SPS Committee indicate that, in September 2010, APHIS had already completed a risk assessment for Northern Argentina which it did not publish[288], or, at least, that APHIS had all the information needed to complete one.[289] In this regard, Argentina contends that, under the public international law rules on State responsibility, "the United States must be held to the evidence of statements" made by its officials.[290]

7.86.  In Argentina's view, the above events reveal that APHIS had no scientific rationale for waiting over six years after the 2006 FMD outbreak to proceed with the review of its request.[291] Rather, in its view, the delay in APHIS' approval process is due to a number of elements extraneous to science.[292] Argentina also argues that Section 737 of the 2009 Omnibus Appropriations Act contributed to the undue delay because it precluded any activity on APHIS' part in connection with Argentina's pending requests[293] at least from March 2009 to September 2009, and deterred APHIS from moving forward even after its expiration.[294] In this regard, Argentina also argues that Section 737 is very similar to Section 727 of the 2009 Omnibus Appropriations Act[295], which the panel in US – Poultry (China) found to impose undue delay in approval procedures inconsistently with Article 8 and Annex C(1)(a).[296]

7.87.  Finally, Argentina maintains that APHIS' new request for a site visit to Northern Argentina in March 2013, followed by the actual visit in November 2013, "do not resolve a gap of six years during which there has been no progress on Argentina's application".[297]

7.3.3.2.2  United States

7.88.  The United States argues that Argentina fails to offer any factual support for its claim of undue delay with respect to APHIS' approval process of imports of fresh (chilled or frozen) beef.[298] It maintains that, since the filing of Argentina's request in November 2002, APHIS engaged with SENASA by requesting information and conducting site visits to Northern Argentina.[299]

7.89.  The United States asserts that the delays in the approval process are not attributable to APHIS, but rather to a "lag in informational response time" on the part of SENASA.[300] In particular, the United States observes that (i) SENASA took over one year to answer additional questions posed by APHIS in October 2003 concerning the FMD situation in Northern Argentina[301]; and (ii) when APHIS requested a new site visit to Northern Argentina in March 2013, SENASA delayed the visit until November 2013.[302]

7.90.  Further, the United States argues that APHIS' delay in processing Argentina's request is due to the changing FMD conditions in the country. The 2003 and 2006 FMD outbreaks in Northern Argentina, for instance, "raise[d] obvious serious concerns" with respect to SENASA's ability to prevent and control FMD and required revised analysis.[303] Moreover, the United States asserts, SENASA suffered a labour strike in 2005, which gave rise to doubts as to its ability to control FMD.[304] The United States also argues that Argentina's "history of intentional concealment and delayed reporting of outbreaks" played a "significant role" in APHIS' verification of SENASA's information and capability, as it "called for greater diligence, and for more time", to conduct such an evaluation.[305]

7.91.  The United States submits that, because the FMD situation on the ground kept evolving throughout the approval process, APHIS did not have all the information necessary to complete its risk assessment for Northern Argentina until it conducted its site visit to Northern Argentina in November 2013.[306] Specifically, according to the United States, the November 2013 visit was aimed at "re-confirm[ing] and updat[ing]" information in possession of APHIS as a result of the 2006 site visit to Northern Argentina and the 2009 site visit to Patagonia.[307]

7.92.  In this regard, the United States disagrees with Argentina's characterization of the statements by APHIS in April 2009 and September 2010 and by the United States' representative before the SPS Committee in June and October 2011. The United States contends that, at the time such statements were made, APHIS had not completed a risk assessment for Northern Argentina[308], nor did it have enough information to complete one.[309]

7.93.  Finally, the United States disagrees with Argentina that Section 737 of the 2009 Omnibus Appropriations Act contributed to delays in APHIS' review processes of Argentina's request. It contends that while Section 737 temporarily discontinued the funding necessary for authorizing meat imports from Argentina, it still preserved the Secretary of Agriculture's powers to review any requests to import meat from Argentina pursuant to 9 CFR 92.2.[310] Moreover, the United States argues that Section 737, together with the whole 2009 Omnibus Appropriations Act, expired less than a year after it was adopted.[311] It adds that to the extent that the United States' representative's statements before the SPS Committee could be understood to suggest that Section 737 had a lingering effect on APHIS after its expiration, those statements were incorrect.[312] Hence, the United States takes issue with Argentina's assertion that Section 737 is similar to Section 727, which was found to be WTO-inconsistent by the panel in US – Poultry (China), because the latter provision "completely foreclosed the possibility for 'completion'" of approval process and "was still in effect" at the time of that dispute.[313]

7.3.3.3  APHIS' review of Argentina's request for recognition of Patagonia as FMD‑free

7.3.3.3.1  Argentina

7.94.  Argentina complains that, despite having filed its request for the recognition of Patagonia as FMD‑free in June 2003 and fully cooperating with APHIS throughout the approval process