WORLD TRADE  
ORGANIZATION  G/SPS/W/163 
21 October 2004 
 (04-4461) 
Committee on Sanitary a nd Phytosanitary Measures Original:   English 
  
 
 
REVIEW OF THE AGREEMENT ON TH E APPLICATION OF SANITARY AND 
PHYTOSANITARY MEASURES - PROPOSAL FOR CONSIDERATION 
 
Submission by the United States
 
 
 
 The following communication, received on 19 Octo ber 2004, is being circulated at the request 
of the Delegation of the United States.  
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 1. The United States takes note of and supports the Decision on Implementation-Related 
Issues and Concerns of the Fourth Session of the Ministerial Conference (WT/MIN(01)/17).  
With specific reference to the decision contained in paragraph 3.4 pertaining to the review and 
implementation of the WTO SPS Agreement, the United States submits the following for 
consideration by the Committee. 
2. The United States would like to commend the Secretariat and express appreciation for 
preparing the Review of the Operation and Implementation of the SPS Agreement  
(G/SPS/GEN/510) for the Committee.  We believe  the document provides a solid basis for the 
Committee's review of the operation and implementation of the Agreement.  The United States finds 
GEN/510 to be an accurate summary of most of the Committee's activities and deliberations since 1999.  We propose that two additional sections be added to GEN/510: one to summarize the 
Committee's discussion of specific trade concerns; and a second section to describe the work program or issues the Committee intends to address at future meetings.  
Summary of Discussions of Specific Trade Concerns 
 
3. While we believe GEN/510 provides an extens ive review of many of the Committee's 
activities, the United States proposes the inclusion of  two additional topics in GEN/510.  First, we 
propose expanding the section of the paper on specific trade concerns (paragraph 51).   In the view of the United States, the discussions in the Committee under the agenda item of specific trade concerns 
have made significant and meaningful contributions  to the operation and implementation of the SPS 
Agreement.  We believe these discussions demonstr ate Member's increasing knowledge of the rights 
and obligations under the Agreemen t and show that the SPS Committee is a useful forum to address 
SPS-related issues among Members.  The United States believes a short summary of major SPS-
related trade issues, such as FMD, BSE and Avian In fluenza (AI), would be beneficial for all Member 
countries and can help to demonstrate the Committee' s role in the implementa tion and operation of the 
Agreement.  In this regard, the Committee may wish  to consider the summary material prepared by 
the Secretariat in G/SPS/GEN/204/Rev.4, as a basi s for a report on the Co mmittee's discussions on 
specific trade concerns in the context of the review.    G/SPS/W/163 
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 Work Plan   
 
4. The United States proposes that the review report include a section that identifies issues that 
the Committee may discuss at future meetings.  Me mbers have submitted a number of proposals for 
the Committee's consideration and these submissions  will be discussed by the Committee in the near 
future.  In the view of the United States, there is not sufficient time to evaluate properly each of these 
proposals and for the Committee to determine what action, if any, might be taken before the Committee completes the review as directed by paragr aph 3.4 of the Ministerial Decision.  Therefore, 
the United States suggests that the Committee disc uss each of these submissions from Members to 
determine which of these issues will be the subject of  more in-depth consideration.  These identified 
issues would constitute the Committee's future work plan.  We believe it woul d be helpful to inform 
Ministers of the Committee's future delibera tions in the review of the Agreement.  
Proposals for the Committee's Work Plan    
 
5. The United States is pleased to submit the follo wing proposals for consideration as part of the 
Committee's future work plan. 
A. Implementation and relationship of Articles 2.1 and 5.6   
 
6. A review of the SPS Agreement should ensure that Members are meeting their commitments 
and working together to enhance trade.  There ar e two interrelated principles within the Agreement 
that deserve further attention by the Committee.   The United States proposes the Committee review 
Members' experiences regarding the interrelated prin ciples of Articles 2.1 and 5.6 of the Agreement. 
7. Article 2.1 states that  "Members have the ri ght to take sanitary and phytosanitary measures 
necessary for the protection of human, animal or plan t life or health, provided that such measures are 
not inconsistent with the provisions of this Agreem ent".  The United States fully supports this right 
and encourages all Members to notify the Comm ittee of their SPS proposals on a timely basis. 
8. The second principle is contained in Article 5.6.  It reads as follows:  "… When establishing 
or maintaining sanitary or phytosanitary measures to achieve the appropriate level of sanitary or 
phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than 
required to achieve their appropriate level of sanitary  or phytosanitary protection, taking into account 
technical and economic feasibility".  
9. The Agreement goes on in Footnote 3 to explain that under Article 5.6, "a measure is not 
more trade restrictive than required unless there is  another measure, reasonably available taking into 
account technical and economic feasibility, that achieves the appropriate level of sanitary or 
phytosanitary protection and is significantly less restrictive to trade".   
10. While important for full implementation of the Agreement, it is not clear that Members have 
forged a common understanding and application of th ese concepts in practice.  The United States 
believes the implementation of the Agreement co uld be enhanced through a discussion and the 
identification of good practices regarding the implem entation of these principles.  We suggest that the 
best way to approach such a discussion is for the Committee to invite Members from different regions 
and economic circumstances to present information and discuss how their regulatory regimes implement Articles 2.1 and 5.6 and the phrase "not more trade-restrictive than required".   
B. Consultations Under Article 12.2 
 
11. The United States believes Article 12.2 provides Members with a useful opportunity to assist 
in the resolution of SPS issues that disrupt trade and which would enhance the full implementation of  G/SPS/W/163 
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 the Agreement.  However, the framework of the consultations provided for in Article 12.2 has not 
been developed into an operational mechanism with established procedures and processes.  As a 
result, the provisions of Article 12.2 have been significantly under utilized.   
12. There are a variety of possible alternative appr oaches regarding the consultations described in 
Article 12.2 of the Agreement which could be used  to enhance the implementation and operation of 
the provisions of Article 12.2.  For example, the Committee could discuss the following options:  
(a) Members could make themselves available to  facilitate ad hoc consultations and to 
arrange for input from the standard-setti ng bodies and other technical experts, as 
appropriate.  This could allow a larger numbe r of issues to be the subject of ad hoc 
consultations without over-burdening the Chair or the Secretariat;  
(b) The Committee could identify more general tr ade issues that have been raised by 
several Members and which are disrupting tr ade.  In such cases, the Committee could 
facilitate a session during which the relevant  international standards and scientific 
opinions were presented;  or  
(c) Members could discuss how implementation of Article 12.2 could result in the 
creation of a new mechanism for resolving SPS trade disputes that is considerably 
less resource-intensive than a dispute pane l.  A mechanism created under Article 12.2 
may appeal to developing countries, as this  mechanism may involve fewer resources 
than those necessary to pursue other disput e settlement procedures, such as those of 
the WTO, IPPC or OIE.   
13. These options are presented to initiate a discussi on regarding Article 12.2.  The United States 
believes that the specific outcomes regarding und erstandings or procedures to implement the 
provisions of Article 12.2 s hould depend upon the delibera tions of the Committee.  
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