WT/DS447/R  
 
24 July 2015  
(15-3739) Page: 1/235  
  Original: English  
 
 UNITED STATES – MEASURES AFFECTING THE IMPORTATION 
OF ANIMALS, MEAT AND OTHER ANIMAL PRODUCTS 
FROM ARGENTINA 
REPORT OF THE PANEL 
 
 WT/DS447/R  
 
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  TABLE OF CONTENTS 
 
1  INTRODUC TION ................................................................................................ 20  
1.1  Complaint by Argentina ....................................................................................... 20 
1.2  Panel establishm ent and comp osition ..................................................................... 20 
1.3  Panel proceedings ............................................................................................... 20 
1.3.1  General ............................................................................................................. 20 
1.3.2  Consultati on of experts ........................................................................................ 21 
1.3.2.1  Expert selection .................................................................................................. 22 
2  FACTUAL ASPECTS ............................................................................................ 24  
2.1  The relevant disease: F oot-and-mouth di sease (F MD) .............................................. 24 
2.2  The measur es 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 Regulati ons, Part 94 ................................................... 25 
2.2.1.2  APHIS' 2001 Interim and Fi nal Rules amendi ng 9 CF R 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 Appropri ations Act ............................................... 29 
2.3  Products  at issue ................................................................................................ 30 
2.4  Relevant international standard s, guidelines, and recommendat ions ........................... 30 
2.4.1  The OIE and its mandate ...................................................................................... 30 
2.4.2  The Terrestrial Code ............................................................................................ 31 
2.4.2.1  Objectives and struct ure of the Terre strial Code ...................................................... 31 
2.4.2.2  Official recognit ion of diseas e status ...................................................................... 32 
2.4.3  Relevant standards, guidelines or  recommendations invo ked by the parties ................. 33 
2.5  The parties' dome stic FMD si tuations ..................................................................... 34 
2.5.1  Argentina ........................................................................................................... 34 
2.5.1.1  Northe rn Argentina ............................................................................................. 35 
2.5.1.2  Patagonia .......................................................................................................... 35 
2.5.2  United States ..................................................................................................... 35 
3  PARTIES' REQUESTS FOR FI NDINGS 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 WT/DS447/R 
 
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  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 Unit ed States ' ALOP ........................................................................ 42 
6.5  Special and differential treatment .......................................................................... 43 
6.6  Argentina's claims  under the GATT 1994 ................................................................ 44 
7  FINDIN GS ......................................................................................................... 44  
7.1  Order of analysis ................................................................................................. 44 
7.1.1  Main argument s 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 argument s 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 argume nts 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 argume nts 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 reques t for recognition of Pa tagonia 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  Harmon ization .................................................................................................... 94 WT/DS447/R  
 
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  7.4.1  Relevant legal provisions ...................................................................................... 94 
7.4.2  Whether the United States' measures are based on relevant international 
standards, guidelines or recommend ations ............................................................. 95 
7.4.2.1  Main argume nts 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 argument s of the pa rties ............................................................................ 113  
7.5.2.2  Main arguments of the third parties ..................................................................... 116  
7.5.2.3  Europe an Union ................................................................................................ 118  
7.5.2.4  Analysis by the Panel ......................................................................................... 119  
7.5.2.5  Conclusion ....................................................................................................... 122  
7.5.3  Whether the United States' measur es are based on a risk asse ssment ...................... 122  
7.5.3.1  Main argument s of the pa rties ............................................................................ 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 argument s of the pa rties ............................................................................ 131  
7.5.4.2  Main arguments of the third parties ..................................................................... 133  
7.5.4.3  Analysis by the Panel ......................................................................................... 133  
7.6  Appropriate leve l 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 argument s of the pa rties ............................................................................ 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 argument s of the pa rties ............................................................................ 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  Au stralia .......................................................................................................... 1 41 
7.6.5.2  Europe an Union ................................................................................................ 141  
7.6.6  Analysis by the Panel ......................................................................................... 141  
7.6.6.1  Conclusion ....................................................................................................... 143  WT/DS447/R 
 
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  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 argument s of the pa rties ............................................................................ 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 re striction on intern ational trade .................. 181  
7.7.1  Relevant legal provisions .................................................................................... 181  
7.7.2  Main argument s of the pa rties ............................................................................ 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 .............................................................................................................. 1 86 
7.7.3.2  Europe an 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 Patago nia, Santa Catari na, and Chile .................................. 194  
7.7.4.3  Discrimination between Northern Argentina, Patagonia, Japan, and the 
United Kingdom ................................................................................................ 197  
7.8  Adaptation to re gional conditions......................................................................... 199  
7.8.1  Relevant legal provisions .................................................................................... 199  
7.8.2  Main argument s of the pa rties ............................................................................ 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  Europe an 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 argument s of the pa rties ............................................................................ 211  
7.9.2.1  Argentina ......................................................................................................... 211  
7.9.2.2  United States ................................................................................................... 212  WT/DS447/R  
 
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  7.9.3  Main arguments of  the third parties ..................................................................... 212  
7.9.3.1  China .............................................................................................................. 2 12 
7.9.3.2  Europe an Union ................................................................................................ 213  
7.9.4  Analysis by the Panel ......................................................................................... 213  
7.9.4.1  Whether Article 10.1 is  a positive ob ligation .......................................................... 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 th e 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 argument s of the pa rties ............................................................................ 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 RE COMMENDATIO N(S) .................................................... 223  
APPENDIX  1 ................................................................................................................. 22 6 WT/DS447/R 
 
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  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 cons ultations 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 execut ive 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 ex ecutive summary of the arguments of the 
United States B-25 
Annex B-4 Second part of the integrated execut ive 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 summa ry of the arguments of China C-9 
Annex C-4 Integrated executive summary of the arguments of the European Union C-13 
 WT/DS447/R  
 
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  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 Affectin g 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 Affect ing Importation of Salmon , 
WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by 
Appellate Body Report WT/DS 18/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 Augu st 1999, DSR 1999:III, p. 1377 
Canada – Autos Appellate Body Report, Canada – Certain Meas ures 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 – Se cond 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 WT/DS447/R 
 
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  Short Title Full Case Title and Citation 
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 Di stribution 
Services for Certain Publications an d 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 – Measur es 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 Banana s, 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, Co mplaint 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 Bana nas, 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 2 011: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 WT/DS447/R  
 
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  Short Title Full Case Title and Citation 
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 it s 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 – Trad e Description of Sardines , 
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate Body Report WT/DS 231/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 2 011:I, p. 7 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dum ping 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 – Definiti ve 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 – Quantitati ve Restrictions Appellate Body Report, India – Quantitative Rest rictions on Imports of 
Agricultural, Textile an d 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 Me asures 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 WT/DS447/R 
 
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  Short Title Full Case Title and Citation 
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 th e 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 Safegu ard 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 Affect ing 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 – Countervai ling Duties on Certain 
Corrosion-Resistant Carbon Stee l 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 WT/DS447/R  
 
- 12 - 
 
  Short Title Full Case Title and Citation 
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 Carb on 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 – Transition al 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 Meas ures 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 – Custom s 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 Ce rtain 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 – Measur e 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 Augu st 2009, DSR 2009:VIII, p. 3441 
 
 WT/DS447/R 
 
- 13 - 
 
  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 Re gionalization Evaluation 
Services, Risk Analysis: Risk of Exporting Foot-and-Mouth Disease (FMD) in FMD-Susceptible 
Species from Argentina, South of the 42 Parall el (Patagonia South), to the United States: 
Evaluation of the FMD Status of Ar gentina, 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 St atus 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 an d 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 Fres h or Frozen Beef from Argentin a (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 & Qu ality 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 Administ rator, 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 re cognize Patagonia as a region free of foot-and-
mouth disease (22 January 2008) WT/DS447/R  
 
- 14 - 
 
  Panel Exhibit Title 
ARG-40 Letter from Senator Baucus et al. to Ed ward Schafer, Secretar y ,  U S  D e p a r t m e n t  o f  
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 Se nator 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 Administ rator, Veterinary Servic es, APHIS to Jorge N. 
Amaya, President, SE NASA (24 September 2010) 
ARG-48 Committee on Sanitary an d 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 Reco gnition of Argentina's Patagonia as a Region 
Comprised in Article 92.2, Title 9, Code Of Fe deral 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 Administra tor, 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 Administ rator, Veterinary Servic es, APHIS to Jorge N. 
Amaya, President, SENASA (27 April 2009) 
ARG-86 Further information requ ested by USDA-APHIS of the info rmation provided by SENASA to 
attain recognition of Argentina's Patagonia as a region, as define d 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 Jo hn Clifford, APHIS, concerning the eradication 
of the San Luis del Palmar (Corrientes) outbreak (26 July 2006)  WT/DS447/R 
 
- 15 - 
 
  Panel Exhibit Title 
ARG-98 Communication by Argentina to the Commit tee 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 diseas e 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 es trategia de vacunación en relación con la 
erradicación de la fiebre aftosa  
ARG-135 Resolución SENASA 540/2010. Créa se 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 antiaf tosa en la Zona Patagónica Norte A. 
Prohibición 
ARG-139 Resolución SENASA 385/2008. Es trategias 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 pa ís en cada establecimiento 
agropecuario. Apruébase el "Procedimien to para Reidentificación de Bovinos WT/DS447/R  
 
- 16 - 
 
  Panel Exhibit Title 
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 "Siste ma 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 proveed ores 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 bovino s para faena con destino a exportación 
ARG-146 Resolución SENASA 391/2003. Inscripción de "E stablecimientos Rurales de Origen", que 
provean bovinos nacidos y criados en los mism os 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. Ap ruébase 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. Re glaméntase 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 Gu ía 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 SE NASA to Attain Recognit ion of Argentina as a Region, as defined in 
Section 92.2, Title 9, of the Code of Federa l 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 Figh t 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 (USD A), 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 Di sease Status Evaluations, 
Regionalization, Risk Analysis, and Rulemaking  WT/DS447/R 
 
- 17 - 
 
  Panel Exhibit Title 
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 (U n i t e d  S t a t e s  D e p a r t m e n t  o f  A g r i c u l t u r e ,  A n i m a l  a n d  P l a n t  
H e a l t h  I n s p e c t i o n  S e r v i c e ,  U S D A ,  A P H I S )  t o  P h i l i p  S c h u l l  ( U . S .  E m b a s s y  i n  A r g e n t i n a )  ( 2 9  
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 Agricult ure, 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 Stat es 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, De puty Administrator) to Dr. Jorge N. Amaya 
(SENASA, President) (3 October 2003) 
U S A - 8 5  F a c s i m i l e  f r o m  T h o m a s  C .  S c h i s s e l  ( U n i t e d  S t a t e s  D e p a r t m e n t  o f  A g r i c u l t u r e ,  A n i m a l  a n d  
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 Departme nt of Agriculture, Animal 
and Plant Health Inspection Service, USDA , APHIS, Area Director) (18 February 2004) 
USA-87 Facsimile from SEN ASA to Theresa Boyle (United States De partment 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 De partment of Agriculture, Animal and Plant 
Health Inspection Service, USDA, APHIS, De puty 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, US DA, APHIS, Acting Associate Ad ministrator) to Marcelo S. 
Miguez (SENASA, President) (13 March 2013) 
USA-97 Letter from Kevin Shea (United States Depa rtment of Agriculture, Animal and Plant Health 
Inspection Service, USDA, APHIS, Administrato r) to Marcelo S. Miguez (SENASA, President) 
(15 July 2013) 
USA-98 Information Provided by SENASA to Attain Recognitio n 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, Ar ea 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  D e p a r t m e n t  o f  A g r i c u l t u r e ,  A n i m a l  a n d  P l a n t  
Health Inspection Service, USDA, APHIS) to Dr. Jorge Amaya (SENASA, President) 
(2 March 2004) WT/DS447/R  
 
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  Panel Exhibit Title 
USA-103 Further Information Requested by the United St ates Department of Ag riculture, 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 Astibi a (SENASA) to Yvette Perez (U SDA, 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 F oot-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, Nati onal 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) 
 WT/DS447/R 
 
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  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 Alimenta rius 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 Comm ission's Directorat e-General for Heal th 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 an d Phytosanitary Measures 
TBT Agreement Agreement on Technical Barriers to Trade  
Terrestrial Code Terrestrial Animal Health Code 
Terrestrial Manual Manual of Diagnostic Te st and Vaccines for Terrestrial Animals 
USC United States Code 
USDA United States Depa rtment 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 
 WT/DS447/R  
 
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  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 Rule s and Procedures Governing the Settlement of 
Disputes (DSU), Article XXIII of the General Ag reement on Tariffs and Trade 1994 (GATT 1994) 
and Article 11 of the Agreement on the Applicat ion 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 pr ovisions 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 
   M r  D a v i d  E v a n s  
 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 partie s, 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 See WT/DS447/1 and WT/DS447/1/Corr.1. 
2 WT/DS447/2. 
3 See WT/DSB/M/328. 
4 WT/DS447/3. 
5 See the Panel's Working Procedures in Annex A-1. WT/DS447/R 
 
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  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 modi fied 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 mand ate, and in accordance with Article 11.2 of the 
SPS Agreement and Article 13 of the DSU, the Pane l 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 area s 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 part ies, the Panel decided to seek advice from the 
                                               
6 In particular, the United States did not file the following documents by the 17:00 deadline specified in 
paragraph 23(e) of the Working Procedures: its first wr itten submission; its responses to Panel questions in 
connection with the first substantive meeting; its comments on the Working Procedures and revised timetable; its second written submission; and its responses to the Panel's communications of 3 April and 15 May 2014 concerning the selection of experts. Argentina filed a corrigendum to its responses to Panel questions in 
connection with the first substantive meeting after the 17:00 deadline specified in paragraph 23(e) of the 
Working Procedures. Australi a did not serve its third-party submission  on the parties and the third parties 
according to the requirements under paragraphs 23(d) and 23(e) of the Working Procedures, and did not meet 
the 17:00 deadline specified in paragraph 23(e) thereof. Finally, Brazil did not submit the final version of its third-party statement by the deadline specified in para graph 16(b) of the Working Pr ocedures. With regard to 
its first written submission, on 10 October 2013 the United States requested an extension of the filing date from 22 October 2013 to 5 November 2013 due to the unforeseen shutdown of the United States Government; the Panel acceded to the United States' request. Howeve r, in other instances the pa rties and third parties did 
not request an extension even though their filings were late. Although a sh ort grace period wa s applied to the 
various instances where filings were no t received on time, the delays rang ed from 30 minutes to several hours. 
On 20 May 2014, the Panel informed the parties that as a result of these la te filings, the Panel was going to 
amend its working procedures with respect to filings of contemporaneous submissions.  
7 See paragraph 23(d) of the modified Working Proc edures in Annex A-1, which provides that when 
submissions are to be filed contempora neously, each party shall file the documents only with the DS Registrar 
and the DS Registrar will serve the documents on the othe r party only after having received the submissions of 
both parties. 
8 Panel question No. 76 following the first substantive meeting. 
9 United States' response to Panel question No. 76 following the first substantive meeting. 
10 Argentina's response to Panel question No . 76 following the first substantive meeting. WT/DS447/R  
 
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  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 indi viduals 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 Wo rking Procedures, the Panel invited the parties to 
comment on the available potential experts id entified 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 prop osed 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 particul ar, 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 pr ovided 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 OI E 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 201 4. 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 
                                               
11 See Letter from the Panel to the parties (4 March 2014). 
12 Letter from the United States regarding proposed experts (15 April 2014). 
13 See Letter from the Panel to the parties selecting the experts (23 May 2014). Dr Howard Batho is a 
Member of the Royal College of Veterinary Surgeons. He retired from the European  Commission's  Directorate-
General for Health and Consumers (SANCO) where he was a principle administrator responsible for the 
coordination and requirements of import policy in the area of animal he alth. He served in a variety of capacities 
relating to veterinary services in the European Commission and the United Kingdom from 1997 until his retirement in 2010. Dr Batho participated in a number of field missions to South America on behalf of the OIE, 
 WT/DS447/R 
 
- 23 - 
 
  Dr Gonçalves by Argentina. The Panel contacted the four selected experts and informed them that 
upon receipt of their signed disclosure forms confir ming 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 Pa nel 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 acknow ledging 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 coul d 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 ques tions 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, knowledgeab le 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 lig ht of the OIE's assurances that the individual 
was an OIE employee in the sense that the in dividual 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 th e individual's attendance at the meeting. In this 
                                                                                                                                               
including to Argentina. Dr Etienne Bonbon served in the French Ministry of Agricultur e and Fisheries in a variety 
of capacities. He has also served as an advisor to the Director General of the OIE and the Vice President of the 
Terrestrial Animal Health Standard  Commission. He is currently a co unsellor with the European Union 
delegation to the OECD, UNESCO and international organi sations in Paris with particular responsibility for 
following the European Union and its Agencies' relations wi th the OIE. Dr Andrew Cupit is Assistant Secretary, 
Animal Biosecurity Branch, Animal Division, Department of Agriculture, Go vernment of Aust ralia. Dr Vitor 
Salvador Picão Gonçalves is associate professor at the Un iversity of Brasília, Brazil and lectures on "Veterinary 
Epidemiology", "Planning of Animal Health Policies", "Methods for Epidemiological Investigation" and "Risk Analysis in Animal Health". He also ac ts as an adviser to the Animal Health  Department, Ministry of Agriculture, 
in Brasilia, on a wide range of topics related to epidemiology and public policies, such as surveillance strategies, establishment of free zones and compartm ents, risk assessments, FM D and CSF eradication and 
control of endemic diseases.  
14 Dr Gonçalves stated that due to important and unforeseen personal reason s he would be unavailable 
to attend the meeting with the part ies and the experts on 2 September. 
15 Letter from the United States to the Panel (11 August 2014). 
16 Letter from the Director-General of the OIE (19 August 2014).  WT/DS447/R  
 
- 24 - 
 
  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 professi onal 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 fo r 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 indica ted 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 ma stitis (inflammation of mammary glands and 
u d d e r s ) .  A l t h o u g h  F M D  w a s  o n c e  f o u n d  w o r l d w i d e ,  i t  h a s  b e e n  e r a d i c a t e d  f r o m  s o m e  r e g i o n s  
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 infect ed animals. Given the virulence and the potential 
rapid spread of the disease, and the significant dire ct 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 
                                               
17 Communication from the United States to the Panel (1 September 2014). 
18 See e.g. website of the World Organiza tion for Animal Heal th (OIE website), Foot & Mouth Disease: 
Questions & Answers , http://www.oie.int/fileadmin/Home/eng/M edia_Center/docs/pdf /Disease_cards/Q_A-
FMD-EN.pdf (last accessed 21 February 2014). 
19 See e.g. OIE website, Foot & Mouth Disease: Questions & Answers , 
http://www.oie.int/fileadmin/Home/eng/Media_Center/docs/pdf/Disease_cards/Q_A-FMD-EN.pdf (last accessed 21 February 2014). WT/DS447/R 
 
- 25 - 
 
  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 fres h (chilled or frozen) beef from Northern 
Argentina and animals, meat and other anim al 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 Un ited 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 products22 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 th e World Organization for Animal 
                                               
20 See e.g. OIE website, Foot & Mouth Disease: Questions & Answers , 
http://www.oie.int/fileadmin/Home/eng/Media_Center/docs/pdf/Disease_cards/Q_A-FMD-EN.pdf (last accessed 21 February 2014). 
21 Rinderpest, Foot-and-Mouth Disease, Exotic New-Castle Disease, African Swine Fever, Swine Vesicular 
Disease, and Bovine Spongifo rm Encephalopathy: Prohibited  and Restricted Importations , 9 CFR 94 
(2013 version), (Exhibit ARG-64). 
22 We note, as will be discussed further below, that the measure at issue prohibits specifically ruminants 
and swine as these are the species that are susceptible to FMD. WT/DS447/R  
 
- 26 - 
 
  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 Anim al 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 
                                               
23 The Panel notes that the measure cited is the version of 9 CFR 94 that was in force on the date of 
establishment of the Panel (28 January 2013). 9 CFR 94.1( a) was slightly different at the time Argentina 
applied for authorization to import. It read as follows: 
 94.1 Regions where rinderpest or foot-and-mou th disease exists; importations prohibited.
  
 
(a)  Notice is hereby given that, in accord ance with the Animal Health Protection Act 
(7 USC 8301 et seq.), it has been determined, and official notice has been given to the Secretary of the Treasury that: 
 
(1)  Rinderpest or foot-and-mouth diseas e exists in all regions of the world, 
except those listed in paragraph (a)(2) or (a)(3) of this section; 
 
(2)  The following regions are declared to  be free of both rinderpest and foot-
and-mouth disease: Austra lia, Austria, The Bahamas, Barbados, Belgium, 
Bermuda, the Brazilian State of Santa Catarina, British Honduras (Belize), 
Canada, Channel Islands, Chile, Cost a Rica, Czech Republic, Denmark, 
Dominican Republic, El Salvador, Estonia, Fiji, Finland, France, Germany, Greece, Greenland, Guatemal a, Haiti, Honduras, Hung ary, Iceland, Ireland, 
Italy, Jamaica, Latvia, Liechtenstein, Lithuania, Luxembourg, Mexico, Namibia (excluding the region north of  the Veterinary Cordon Fence), The 
Netherlands, New Caledonia, New Zealand, Nicaragua, Norway, Panama, Papua New Guinea, Poland, Portugal, Sp ain, Territory of St. Pierre and 
Miquelon, Sweden, Switzerland, Trinidad  and Tobago, Trust Territory of the 
Pacific Islands, and the United Kingdom. 
 (3)  The following regions are declared to  be free of rinderpest: Japan, Namibia, 
the Republic of South Africa, and Uruguay. 
 
9 CFR 94 (2012 version), (Exhibit ARG-126). WT/DS447/R 
 
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  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 CF R 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 estab lishment 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 dela y in the application of the procedures set 
forth in 9 CFR 92.2 to Argentina's requests fo r imports of fresh (ch illed 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:  
                                               
24 9 CFR 94.1(b)(4) (2013 Version), (Exhibit ARG-64). 
25 Prohibition of Beef from Argentina , 66 Fed. Reg. 29897 (4 June 2001) (Interim Rule), (2001 Interim 
Rule on Argentina), (Exhibit ARG-29). 
26 Prohibition of Beef from Argentina , 66 Fed. Reg. 63911 (11 December 2001) (Final Rule), (2001 Final 
Rule on Argentina), (Exhibit ARG-30). 
27 See para. 2.7 above. 
28 As will be discussed further in section 7 below, APHIS did issue a Proposed Rule with respect to 
Patagonia in 2007, but this was never finalized.  
29 These regulations were amended effective August 27, 2012. (See Information From Foreign Regions 
Applying for Recognition of Animal Health Status: Final Rule , 77 Fed. Reg. 44107 (USDA/APHIS, 27 July 2012) 
(Final Rule), (Exhibit ARG-16)) 
30 9 CFR 92.1 (Exhibit USA-72). WT/DS447/R  
 
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  (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 separa ted 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 surveillan ce 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 co mpletion 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 a ppropriate 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 
                                               
31 See 9 CFR 92.2 (2002 version), (Exhibit ARG-118). We refer here to the version of 9 CFR 92.2 that 
was in force at the time of the filing  of Argentina's requests for authorizat ion of imports of fresh (chilled or 
frozen) beef and for the recognition of Patagonia as FMD-free. As a result of a 2012 amendment to 9 CFR 92.2, the 11 factors were consolidated into eight. However, we note that APHIS itself considers it appropriate to 
evaluate Argentina's requests in light of the pre-2012 version of 9 CFR 92.2. Indeed, the 2014 risk analyses for Northern Argentina and Patagonia both  refer to the 11-factor list rather  than the new 8-factor list. See 
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), (2014 Risk Analysis for Patagonia), 
(Exhibit USA-133), p. 9; APHI S, Veterinary Services, Nation al Import Export Services, Risk Analysis: Foot-and-
Mouth Disease Risk from Importation of Fresh (Chilled or Frozen), Ma tured, Deboned Beef from Northern 
Argentina into the United States (April 2014), (2014 Risk Analysis for Northern Argentina), (Exhibit USA-169), 
p. 9. 
32 See 9 CFR 92.2(e), (Exhibit ARG-69). 
33 See 9 CFR 92.2(f), (Exhibit ARG-69). WT/DS447/R 
 
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  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 limi t 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 
                                               
34 See 9 CFR 94.11(a)(2), (Exhibit ARG-64). 
35 See para. 2.7 above. We note that under APHIS' te rminology the definition of a "region" includes the 
entire territory of a country. 
36 See e.g. Argentina's first written submission, paras. 83, 607, 647, and 681. 
37 United States' first written submission, footnote 208 to para. 125. 
38 See Argentina's opening statement at the first meeting of the Panel, para. 57. 
39 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), (Information Provided by SENASA (November 2002)), (Exhibit USA-32). 
40 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), (Information Provided by SEN ASA (July 2003)), (Exhibit USA-98). 
41 See 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), (SENASA's letter of 17 
December 2008), (Exhibit ARG-59/USA-111); 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), (SENASA's letter of 30 Ja nuary 2009), (Exhibit  ARG-60/ USA-112). 
42 The Panel drafted the chronology based on the submissions of the partie s. Prior to the first 
substantive meeting, the Panel circulated a draft versio n of the chronology, and as ked the parties to comment 
on the document and provide supplemental information where relevant. The Panel incorporated the parties' comments into a revised version of the chronology an d asked the parties to prov ide any further comments. 
See Panel question No. 78 following the first substa ntive meeting and the parties' responses thereto. WT/DS447/R  
 
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  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 aspe cts of the pending proposal to allow the 
importation of such products into the Unit ed 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 standard s, 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 members50 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  
                                               
43 Omnibus Appropriations Act , 2009, Pub. L. No. 111-8, §737, 123 Stat. 524, 559, ( 2009 Omnibus 
Appropriations Act ), (Exhibit ARG-45/USA-95). 
44 The zoological suborder of "ruminants" (" Ruminantia ") consists of even-toed ungulate mammals that 
chew the cud regurgitated from their rumen. For purposes of the United States' regulations, these include "cattle, buffaloes, sheep, goats, deer, an telopes, camels, llamas and giraffes." 
45 Swine refers to any of the animals in the zoological genus " Sus", including the domestic pig. 
46 OIE website, About us , http://www.oie.int/about-us/ (last accessed 6 October 2014). 
47 OIE website, Objectives , http://www.oie.int/index.php?id=53#c201 (last accessed 6 October 2014). 
48 OIE website, Objectives , http://www.oie.int/index.php?id=53#c201 (last accessed 6 October 2014). 
49 OIE website, Objectives , http://www.oie.int/index.php?id=53#c201 (last accessed 6 October 2014). 
50 OIE website, The 180 OIE Members , http://www.oie.int/about-us/our -members/membe r-countries/ 
(last accessed 6 October 2014). 
51 OIE website, The World Assembly of Delegates , http://www.oie.int/about-us/wo/world-assembly/ 
(last accessed 6 October 2014). 
52 OIE website, OIE Regional Representations , http://www.oie.int/en/about-us/wo/regional-
representations/ (last accessed 6 October 2014). WT/DS447/R 
 
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  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 Assemb ly, 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 prev ent the introduction of infectious agents and 
diseases pathogenic to terrestrial animals and hum ans 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 us ed 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 reno wned 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-fir st 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 struct ure 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 veterina ry 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 I n  s u m ,  t h e  
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 
                                               
53 Annex A(3)(b) of the SPS Agreement . 
54 According to the document "International Trade: Rights and Obligations of  OIE Member Countries", 
referenced in the OIE's responses to the Panel's questions, the " OIE standards are contained in the Terrestrial 
Animal Health Code (Terrest rial Code) and Aquatic Animal Health Code  (Aquatic Code) and associated Manuals, 
for terrestrial and aquatic animals respectively, and in  Resolutions of the World Assembly of OIE delegates ." 
55 OIE website, International Standards , http://www.oie.int/international-standard-setting/overview/ 
(last accessed 23 October 2014). 
56 OIE, Terrestrial Animal Health Code  21st edn (2012), Vol. 1, p. v.  
57 In their submissions, the partie s have referred to different ve rsions of the Terrestrial Code 
interchangeably. Throughout this Report, the Panel will  use the twenty-first edition of the Terrestrial Code 
when referring to the parties' arguments. 
58 OIE, Terrestrial Animal Health Code  21st edn (2012), Vol. 1, p. v. 
59 OIE, Terrestrial Animal Health Code  21st edn (2012), Vol. 1, p. v. 
60 OIE, Terrestrial Animal Health Code  21st edn (2012), Vol. 1, p. v. WT/DS447/R  
 
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  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), contag ious 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 
                                               
61 OIE website, Final Report of the 76th General Session, Paris, 25-30 May 2008 , 
http://www.oie.int/fileadmin/Home/eng/About_ us/docs/pdf/A_RF_2008_webpub.pdf (last accessed 
7 October 2014). See discussion in section 2.4.2.2 below. 
62 OIE, Terrestrial Animal Health Code  21st edn (2012), Vol. 1, p. xvii. 
63 OIE, Terrestrial Animal Health Code  21st edn (2012), Vol. 1, p. xvii. 
64 See OIE website, Animal Health in the World – Overview , http://www.oie.int/animal-health-in-the-
world/ (last accessed 9 January 2015). Previously, the OIE also provided official recognitions for rinderpest. However, the world was officially declared free of rinderpest in 2011. See OIE website, Animal Disease 
Information Summaries – Rinderpest , 
http://www.oie.int/fileadmin/Home/eng/Media_Center /docs/pdf/Disease_cards/R INDERPEST-EN.pdf (last 
accessed 13 February 2015). 
65 OIE's response to Panel question No. 5 (emphasis omitted). 
66 OIE's response to Panel question No. 5. WT/DS447/R 
 
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  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 th e requirements set forth in Chapter 8.5 of the 
Terrestrial Code, and provides the OIE Scientific Commission70 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 Comm ission 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  
                                               
67 Article 1.6.4 of the Terrestrial Code. The inform ation requirements differ partially depending on 
whether a Member is applying for FMD-free status with  or without vaccination and whether its application 
covers its whole territory or only a zone therein.  
68 Transcript of the Panel's meeting with the scient ific experts on 2 September 2014 ("Transcript of the 
meeting"), para. 1.20. 
69 OIE's response to Panel question No. 13. 
70 OIE's response to Panel question No. 5. Founded in 1946, the Scientific Commission is elected by the 
World Assembly for a 3-year term. In addition to eval uating Members' dossiers fo r disease recognition, the 
Commission assists in identifying the most appropriat e strategies and measures for disease prevention and 
control. See OIE website, Specialist Commissions , http://www.oie.int/about-us/wo/commissions-master/ (last 
accessed 10 January 2015). 
71 OIE's response to Panel question No. 13. 
72 OIE's responses to Panel questions Nos. 5 and 13. Th e OIE explained that a list of those applications 
that do not meet the requirements se t forth in Chapter 8.5 of the Terrestri al Code is not circulated to the 
Members. (See Transcript of the meeting, para. 1.24) 
73 OIE's response to Panel question No. 5. See also OIE's response to Panel question No. 13. 
74 OIE's response to Panel question No. 13. 
75 OIE's response to Panel question No. 5. 
76 OIE's response to Panel question No. 13. 
77 OIE's response to Panel question No. 10. 
78 OIE's response to Panel question No. 13. 
79 OIE's response to Panel question No. 13. 
80 Argentina's response to Panel question No. 13 following the first substantive meeting.  WT/DS447/R  
 
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  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 differ ent regions of Argentina and the disease status 
thereof, we provide a map of Argentina and the neighbouring territories below.82 
 
                                               
81 United States' response to Panel question No. 13 following the first substantive meeting. Specifically, 
in comparing the procedures set forth in 9 CFR 92.2 and 9 CFR 92.4 with the Terrestrial Code, the United States refers to Articles 1.6.5, 8.5.2-8.5.5, 8.5.7, 8.5.9, 8.5.22, 8.5.23, 8.5.26, and 8.5.34 thereof. See United States' response to Panel question No . 13 following the first substantive meeting. 
82 The map is based on that provided by the United States in 2014 Risk Analysis for Northern Argentina, 
(Exhibit USA-169), p. 47. WT/DS447/R 
 
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  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 200184 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 200587 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 200789 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 FI NDINGS 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 Regula tions to importation of fresh (chilled or frozen) beef from 
Argentina: 
                                               
83 OIE International Committee, Resolution XII, Recognition of the Foot and Mouth Disease Status of 
Member Countries , 68th General Session (22-26 May 2000), http://www.oie.int/doc/ged/D7926.PDF (last 
accessed 8 October 2014). 
84 OIE International Committee, Resolution XVII, Recognition of the Foot and Mouth Disease Status of 
Member Countries , 69th General Session (27 May-1 June 2001), (OIE Resolution XVII of 2001), 
(Exhibit ARG-103). 
85 OIE Foot and Mouth Disease and Other Epizootics Commission, Report of the Meeting (16, 17, and 
22 May 2003), http://www.oie.int/fileadmin/Home/eng/Internatio na_Standard_Setting/docs/pdf/SCAD/A_SCFM2003M.pdf 
(last accessed 8 October 2014).  
86 Report of the Meeting of the OIE Scientific Commission for Animal Diseases (December 2003), 
(Exhibit USA-81). 
87 OIE World Assembly, Resolution XX, Recognition of the Foot and Mouth Disease Status of Member 
Countries , 73rd General Session (22-27 May 2005), (OIE Resolution XX of 2005), (Exhibit ARG-95). 
88 OIE, Final Report, 74th General Session (2006), (Exhibit USA-55). 
89 OIE World Assembly, Resolution XXI, Recognition of the Foot and Mouth Disease Status of Member 
Countries , 75th General Session (20-25 May 2007), (OIE Resolution XXI of 2007), (Exhibit ARG-10). 
90 OIE World Assembly, Resolution No. 14, Recognition of the Foot and Mouth Disease Status of 
Members , 79th General Session (22-27 May 2011), (OIE Resolution 14 of 2011), (Exhibit ARG-12). 
91 Argentina's first written submission, para. 3. 
92 OIE World Assembly, Resolution XVII, Recognition of the Foot and Mouth Disease Status of Member 
Countries , 70th General Session (26-31 May 2002) (OIE Resolution XVII of 2002), (Exhibit ARG-89). 
93 OIE Resolution XXI of 2007, (Exhibit ARG-10). 
94 United States' first written submission, para. 67. 
95 United States' first written submission, para. 105. WT/DS447/R  
 
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   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 conj unction 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 necessary98; 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 conj unction 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 
                                               
96 Argentina's first written submission, para. 164. 
97 Argentina's first written submission, paras. 655-656. 
98 Argentina's first written submission, paras. 657-658. 
99 Argentina's first written submission, paras. 659-660. 
100 Argentina's first written submission, paras. 687-688.  
101 Argentina's first written submission, para. 689. 
102 Argentina's first written submission, paras. 690-691. 
103 Argentina's first written submission, para. 699. WT/DS447/R 
 
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  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 explaine d 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  
                                               
104 Argentina's first written submission, para. 701. 
105 Argentina's first written submission, paras. 717 and 721. 
106 In particular, the Panel corrected the clerical erro rs Argentina identified in paras. 7.4, 7.94, 7.170, 
7.237 and footnote 654 thereto, 7.350, 7.482, 7.522, 7.534, 7.542, 7.555, 7.629, 8.1, and 8.3. Argentina's request for a correction of a clerical error in para. 7.168 is discussed in para. 6.9 below. The Panel did not make the correction Argentina requested in para. 7.491 because the language concerned is a direct quotation from the relevant exhibit. 
107 Argentina's request for review of the Interim Report, p. 2. 
108 United States' comments on Argentina's reques t for review of the Interim Report, para. 2. WT/DS447/R  
 
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  6.4.  The Panel does not agree with Argentina th at 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 no t publish a standard processing period, but may 
alternatively communicate the anticipated proce ssing 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' re view 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 re ject 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 agen cy 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 Pane l 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  
                                               
109 Argentina's request for review of the Interim Report, pp. 2-3. 
110 Argentina's request for review of the Interim Report, p. 3. 
111 Argentina's request for review of the Interim Report, p. 3. 
112 United States' comments on Argentina's reques t for review of the Interim Report, para. 4. 
113 Panel Report, US – Poultry (China) , para. 7.119.  
114 Argentina's request for review of the Interim Report, p. 9. WT/DS447/R 
 
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  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 th e 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 Patago nia 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, Argent ina 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 disa greement 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 Noti ce 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 document s 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 
                                               
115 United States' comments on Argentina's reques t for review of the Interim Report, para. 18. 
116 See para. 7.527 below. 
117 Argentina's request for review of the Interim Report, p. 8. 
118 United States' comments on Argentina's reques t for review of the Interim Report, para. 17. 
119 United States' request for review  of the Interim Report, para. 3. 
120 United States' request for review  of the Interim Report, para. 3. 
121 Argentina's comments on the Un ited States' request for review of the Interim Report, p. 2. WT/DS447/R  
 
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  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 No rthern 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 lega l 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 Secr etary 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 sh ould 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 th e 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 positi on, 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  
                                               
122 Argentina's comments on the Un ited States' request for review of the Interim Report, p. 4. 
123 Argentina's comments on the Un ited States' request for review of the Interim Report, p. 4. 
124 Argentina's comments on the Un ited States' request for review of the Interim Report, p. 4. 
125 See e.g. Appellate Body Report, US – Upland Cotton , para. 287. 
126 7 USC § 8303(a), (Exhibit USA-75).  
127 Argentina's request for review of the Interim Report, p. 3. 
128 Argentina's request for review of the Interim Report, pp. 3-4. 
129 United States' comments on Argentina's reques t for review of the Interim Report, para. 5. 
130 Argentina's request for review of the Interim Report, p. 4. 
131 Argentina's request for review of the Interim Report, p. 4. 
132 Argentina's request for review of the Interim Report, p. 4. WT/DS447/R 
 
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  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 necessar y". 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 a ccount the objective of minimizing negative 
trade effects when determining its approp riate level of sanitary protection  
6.30.  Argentina requests the Panel to "reconsider" its reasoning in paragraphs 7.405-7.408135 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 ad option 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.  
                                               
133 United States' comments on Argentina's request for review of the Interim Report, paras. 6-8. 
134 Argentina's request for review of the Interim Report, p. 4. 
135 Argentina's request for review of the Interim Report, p. 5. 
136 Argentina's request for review of the Interim Report, p. 5. 
137 Argentina's request for review of the Interim Report, p. 5. 
138 Argentina's request for review of the Interim Report, p. 5. 
139 United States' comments on Argentina's reques t for review of the Interim Report, para. 10. 
140 United States' comments on Argentina's reques t for review of the Interim Report, para. 11. WT/DS447/R  
 
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  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 applic ation 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 ar e 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 insu fficiency 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 proceed ings. 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 Arge ntina'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. Ar gentina 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 se cond substantive meeting, and thus is not a new 
                                               
141 United States' request for review  of the Interim Report, para. 4. 
142 Argentina's comments on the Un ited States' request for review of the Interim Report, p. 2. 
143 Argentina's comments on the Un ited States' request for review of the Interim Re port, pp. 2-3. 
144 United States' request for review  of the Interim Report, para. 5. 
145 Argentina's comments on the United States' request for review of the Interim Report, p. 3 (referring 
to United States' response to Panel question No. 53 following the second substantive meeting). WT/DS447/R 
 
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  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. Th erefore, 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 argu es that the Panel's reasoning would thus also 
implicitly undermine Article 9.
 151 
                                               
146 Argentina's request for review of the Interim Report, p. 6. 
147 United States' comments on Argentina's reques t for review of the Interim Report, para. 13. 
148 Argentina's request for review of the Interim Report, p. 6. 
149 United States' comments on Argentina's reques t for review of the Interim Report, para. 14. 
150 Argentina's request for review of the Interim Report, p. 7. 
151 Argentina's request for review of the Interim Report, p. 7. WT/DS447/R  
 
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  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 developi ng 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 7.730-7.7 32 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 prov iding 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 one155, 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 th e 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 th e 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 spec ific 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 Articl es 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. 
                                               
152 United States' comments on Argentina's reques t for review of the Interim Report, para. 15. 
153 Argentina's request for review of the Interim Report, p. 8. 
154 United States' comments on Argentina's reques t for review of the Interim Report, para. 16. 
155 We note that the panel in US – Poultry (China) dealt with claims and defences under the GATT 1994 
because there was a terms of reference issue with respect to the SPS claims. In that context, making findings 
on the GATT 1994 was relevant to providing a positive resolution to the dispute. 
156 Argentina's request fo r the establishment of a panel, pp. 4-5. WT/DS447/R 
 
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  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 be lieves concern the timeliness of APHIS' process – 
namely Annex C(1)(a) and Article 5.7.159  
7.6.  The United States argues that an examinat ion of these provisions is what is necessary to 
resolve this dispute160, 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 
                                               
157 United States' first written submission, paras. 2-3, 172; United States' response to Panel question 
No. 76 following the first substantive meeting. 
158 United States' first written submission, para. 172. 
159 United States' first written submission, para. 173. 
160 United States' first written submission, para. 173. 
161 United States' first written submission, para. 174. 
162 United States' first written submission, para. 174. We  note that in its submission the United States 
refers to Article 3.2. However, the United States does not claim that it s measures "conform" to international 
standards and thus benefit from the pres umption of consistency in Article 3.2. Therefore, we conclude that this 
was a typographical error and the United States was referring to Article 3.3.  
163 United States' first written submission, paras. 368-373. 
164 Panel Report, India – Autos , para. 7.154. WT/DS447/R  
 
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  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 – Salmon168, EC 
– Approval and Marketing of Biotech Products169, 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 
                                               
165 Panel Report, India – Autos , para. 7.161. Furthermore, we note that Article 2.4 of the 
SPS Agreement provides that SPS meas ures that conform to the provisions of the SPS Agreement shall be 
presumed to be in accordance with the provisions of the GATT 1994 that relate to the use of SPS measures, in particular the provisions of Article XX(b). Therefore, a finding that the United States' measures are consistent 
with the SPS Agreement would yield a presumption that  they are consistent with Article XX(b) of the 
GATT 1994, obviating the need for a substantive analysis of Argentina's claims under Articles I and XI of the GATT 1994, for they would in any event be presumed to be justified under Article XX.  
166 Appellate Body Report, EC – Bananas III , para. 204. 
167 Panel Reports, EC – Hormones (Canada) , paras. 8.44-8.45; EC – Hormones (US) , paras. 8.41-8.42. 
168 Panel Report, Australia – Salmon , para. 8.39.  
169 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1364. 
170 Panel Report, US – Poultry (China) , paras.7.67-7.68. 
171 Panel Report, India – Agricultural Products , paras. 7.115-7.120. We note that the Panel Report in 
India – Agricultural Products was circulated to Members on 14 October 2014 and was appealed on 
26 January 2015. Therefore, the report was not yet adopted at the time of the writing of this Report. Therefore, the parties did not themselves present argume nts referring to this Pane l Report. Nevertheless, we 
believe that the Panel should examine all relevant guid ance on the legal interpretation of the SPS Agreement 
and therefore will refer to th at report as appropriate.  
172 Appellate Body Report, EC – Bananas III , para. 204. 
173 Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 277. 
174 Appellate Body Report, Canada – Wheat Exports and Grain Imports , paras. 126-129. 
175 Appellate Body Reports, Canada – Autos , para. 151; and Canada – Wheat Exports and Grain 
Imports , para. 109. WT/DS447/R 
 
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  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 applicabilit y 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 part icular, 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 ar e 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 2.2178), appropriate level 
of protection (Articles 5.4 and 5.6,); discrimination (Article 2.3); adaptation to regional conditions 
                                               
176 See para. 7.11 above. Furtherm ore, a determination of whether the measures are SPS measures 
within the meaning of Annex A is rele vant for the determination of the ap plicable internatio nal standards for 
analysis of claims under Article 3 (Annex A(3)), as well as  the type of risk assessme nt required under Article 5 
(Annex A(4)). 
177 See Panel Report, US – Poultry (China) , para. 7.142 (where the panel found that, being entitled 
"Basic Rights and Obligations", Article 2 contains "overarching and encompassing" obligations which "inform all of the SPS Agreement"). 
178 We note that the Appellate Body has interpre ted Article 5.7 as bein g an exemption from the 
applicability of Articles 2.2 and 5.1. (See Appell ate Body Report, Japan – Agricultural Products II , para. 80) As 
Article 5.2 sets forth what a Member mu st take into account when assessing the risks, it is inextricably linked 
to Article 5.1. (See e.g. Appellate Body Report, Australia – Apples , para. 208) Therefore, the Panel will only 
address Argentina's claims under Articles 2.2, 5.1, and 5.2 if it finds that Article 5.7 is not applicable. WT/DS447/R  
 
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  (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, establis hment 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 la belling 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 WT/DS447/R 
 
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  risks arising from the entry, establishment and sp read 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 th e 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 becaus e 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 cons tituting 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 
                                               
179 Argentina's first written submission, para. 177. See also Argentina's response to Panel question No. 2 
following the first substantive meeting. 
180 Argentina's first written submission, paras. 179-180. 
181 Argentina's first written submission, para. 174. 
182 Argentina's first written submission, para. 184. 
183 Argentina's first written submission, paras. 413-414. 
184 Argentina's first written submission, paras. 413-414. 
185 Argentina's first written submission, para. 414. 
186 Argentina's first written submission, para. 606; Argentina's response to Panel question No. 1 
following the first substantive meeting; Argentina's second written submission, para. 80. 
187 Argentina's second written submission, para. 337. 
188 Argentina's second written submission, para. 337. 
189 Argentina's first written submission, para. 704. 
190 Argentina's first written submission, para. 711; Argentina's response to Panel question No. 2 
following the first substantive meeting. 
191 Argentina's first written submission, paras. 709-710; Argentina's response to Panel question No. 2 
following the first substantive meeting. 
192 United States' second written submission, Annex, para. 10. 
193 United States' response to Panel question No. 2 following the first substantive meeting. WT/DS447/R  
 
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  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 Ag reement 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 
o f  t h e  d e f i n i t i o n  o f  ' S P S  m e a s u r e '  s e t  o u t  i n  A n n e x  A ( 1 )  i s  t h a t  s u c h  a  m e a s u r e  m u s t  b e  o n e  
'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 clarifie d 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 pr ocedures". 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  i s  a  l i s t  o f  e x a m p l e s  o f  m e a s u r e s  t h a t  m a y  f a l l  w i t h i n  t h e  d e f i n i t i o n  o f  a n  
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 
                                               
194 United States' second written submission, Annex, para. 11. See also United States' response to Panel 
question No. 2 following the first substantive meeting. 
195 United States' response to Panel question No. 2 following the first substantive meeting. 
196 Panel Reports, EC – Hormones (United States) , para. 8.36; EC – Hormones (Canada) , para. 8.39. 
197 Appellate Body Report, Australia – Apples , para. 172. 
198 Appellate Body Report, Australia – Apples , para. 172. See also Panel Report, India – Agricultural 
Products , para. 7.139. 
199 Appellate Body Report, Australia – Apples , para. 172. See also Panel Report, India – Agricultural 
Products , para. 7.139. 
200 Appellate Body Report, Australia – Apples , para. 173. 
201 Appellate Body Report, Australia – Apples , para. 173. 
202 Appellate Body Report, Australia – Apples , para. 175. WT/DS447/R 
 
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  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 th e 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 author ized 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 mu st determine whether the measure "as applied" 
satisfies the definition in Annex A(1).  
                                               
203 Appellate Body Report, Australia – Apples , para. 176. 
204 We note that the measures coul d arguably also fall within the scope of Annex A(1)(d) given the 
potential economic ramifications of the entry of FMD into the United States that the United States presents in its first written submission. See United  States' first written submission, pa ras. 41-47. However,  Argentina need 
only establish that the measures are applied to protect against one of the risks set forth in Annex A(1).  
205 2001 Interim Rule on Argentina, (Exhibit ARG-29 ); 2001 Final Rule on Argentina, (Exhibit ARG-30). 
206 Although the terms are not identical, the Panel recognizes that preventi ng the "introduction or 
dissemination" of a disease falls within the scope of preventing its entry, establishment, and spread. WT/DS447/R  
 
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  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 import ation 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 Pr esident 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 Argent ina's applications to import, it does not dispute 
that the measures in place at the time of establis hment of the Panel were total import prohibitions 
on fresh (chilled or frozen) beef from Northern Argentina and on ruminant and swine products 
from Patagonia.  
                                               
207 Our understanding is confirmed by the findings of the panel in EC – Approval and Marketing of 
Biotech Products , which found that the application  of a general moratorium of approvals for placing GMOs on 
the market are inconsistent with Article 8 and Annex C(1)(a). (Panel Report, EC – Approval and Marketing of 
Biotech Products , paras. 7.1568-7.1569) 
208 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 81. 
209 See e.g. Appellate Body Reports, US – Oil Country Tubular Goods Sunset Reviews , paras. 167, 172; 
US – Carbon Steel , para. 171. 
210 Argentina's response to Panel question No . 2 following the first substantive meeting. 
211 Section 737 of the 2009 Omnibus Appropriations Act , (Exhibit ARG-45/USA-95). 
212 Panel Report, US – Poultry (China) , para. 7.119. 
213 Panel Report, India – Agricultural Products  para. 7.157. 
214 Panel Reports, EC – Hormones (United States) , para. 8.23; EC – Hormones (Canada) , para. 8.26. WT/DS447/R 
 
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  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, includ ing 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; … WT/DS447/R  
 
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  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 proced ures set forth in 9 CFR 92.2 to Argentina's 
requests falls within the scope of Articl e 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, acco rding 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 an d approval procedures' so narrowly qualified".222  
                                               
215 Argentina's response to Panel question No. 2 fo llowing the first substantive meeting; Argentina' 
second written submission, para. 341. 
216 Argentina's first written submission, para. 610. See also Argentina's opening statement at the first 
meeting of the Panel, para. 85; Argentin a's second written submission, para. 338. 
217 Argentina's first written submission, para. 610. See also Argentina's response to Panel question 
No. 58 following the first substantive meeting; Argentina's second written submission, para. 337. 
218 Argentina's first written submission, paras. 603-606; Argentina's response to Panel question No. 58 
following the first substantive meeting. 
219 Argentina's opening statement at the first meeting of the Panel, para. 84; Argentina's response to 
Panel question No. 58 following the first substantive meeting; Argentina's second written submission, para. 331. 
220 Argentina's response to Panel question No. 58 following the first substantive meeting; Argentina's 
second written submission, paras. 332-334 (referring to Panel Report, US – Poultry (China) , para. 7.363). 
221 Argentina's second written submission, para. 335 (referring to Appellate Body Report, Australia – 
Apples , paras. 438-440). 
222 Argentina's second written submission, para. 345. WT/DS447/R 
 
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  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 ex amples 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 desi gned 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 an y measures that impose conditions on import 
would make Annex C applicab le 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 Un ited States' contention that the rules against 
undue delay contained in Article 8 and Annex C of the SPS Agreement apply only to products and 
                                               
223 United States' first written submission, paras. 176-178; United States' opening statement at the first 
meeting of the Panel, para. 28; United States' response to Panel question No. 58 following the first substantive 
meeting; United States' second written submission, para s. 51-59; United States' re sponse to Panel question 
No. 50 following the second substantive meeting. 
224 United States' first written submission, para. 184. 
225 United States' first written submission, para.184. 
226 United States' first written submission, paras. 185-186. 
227 United States' first written submission, para. 181. United States' response to Panel question No. 58 
following the first substantive meeting; United States' second written submission, paras. 52-54. 
228 United States' first written submission, para. 178. 
229 Brazil's third-party response to Panel question No. 24. 
230 Brazil's third-party response to Panel question No. 24. 
231 China's third-party submission, para. 69. See also China's third-party statemen t, paras. 7-9; China's 
third-party response to Panel question No. 24. 
232 China's third-party submission, para. 69. See also China's third-party response to Panel question 
No. 24. 
233 China's third-party submission, para. 69. WT/DS447/R  
 
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  not to regions.234 In the European Union's view, the language of such provisions does not contain 
any limitation in this regard235 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 cons istent 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 "p rocedures" 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 products241, 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) impo ses 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 Un ited States argues. Rather, it is necessary to 
examine the text of the provision itself to determ ine its scope, and thereby the scope of Article 8.  
                                               
234 European Union's third-party submission, para. 106. See also European Union's third-party response 
to Panel question No. 24. 
235 European Union's third-party submission, para. 106. 
236 European Union's third-party submission, para. 107. 
237 Panel Report, US – Poultry (China) , para. 7.394. 
238 9 CFR 92.2, (Exhibit ARG-69). The United States itself describes such disciplines as a " Process  for 
Foreign Animal Disease Status Evaluations, Regionalization, Risk Analysis, and Rulemaking". (See 9 C.F.R. § 92.2 (2013), Process for Foreign Animal Disease Status Eval uations, Regionalizatio n, Risk Analysis, and 
Rulemaking , (Exhibit USA-76), p. 1 (emphasis added); see also e.g. United States' first written submission, 
paras. 334-335) 
239 See para. 7.37 above. 
240 Argentina's first written submission, para. 610; Argentina's opening statement at the first meeting of 
the Panel, para. 85; Argentina's resp onse to Panel question No. 58 following the first substantive meeting; 
Argentina's second written submission, paras. 337-338.  
241 United States' first written submission, para. 181. United States' response to Panel question No. 58 
following the first substantive meeting; United States' second written submission, paras. 52-54. 
242 United States' first written submission, paras. 176-178; United States' opening statement at the first 
meeting of the Panel, para. 28; United States' response to Panel question No. 58 following the first substantive 
meeting; United States' second written submission, para s. 51-59; United States' re sponse to Panel question 
No. 50 following the second substantive meeting. 
243 See Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1491; US – Poultry 
(China) , para. 7.352. WT/DS447/R 
 
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  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 phytosanit ary 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, prev ent, 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 'procedu res' 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 ambit248, 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 Bo dy 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 us e 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 previo us 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 region s 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 regi on, the ultimate effect of the process within 
APHIS' regulatory framework is to determine wh ether imports will be authorized. In our view, 
focusing solely on the immediate object of an im porting 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 
                                               
244 Panel Report, US – Poultry (China) , para. 7.363.  
245 Appellate Body Report, Australia – Apples , para. 438. 
246 Appellate Body Report, Australia – Apples , para. 438. 
247 Panel Report, US – Poultry (China) , para. 7.372.  
248 To recall, "national systems for approving the use of additives or for establishing tolerances for 
contaminants in foods, beverages or feedstuffs" (A rticle 8) and "procedures for sampling, testing and 
certification" (footnote 7 to Annex C). 
249 See, in the context of Annex A(1) of the SPS Agreement, Appellate Body Report, Australia – Apples , 
para. 176. 
250 For example, the panel in US – Poultry (China) found that equivalence determinations under Article 4 
of the SPS Agreement constitute approval procedures within the meaning of Annex C(1). Panel Report, US – 
Poultry (China) , para. 7.370. Similarly, the Appellate Body in Australia – Apples  intimated that, had Australia's 
risk assessment been challenged as one of the measures at issue, it might have violated Article 8 and Annex C(1) by virtue of the lengthy pe riod of time it took Australian auth orities to complete it. See Appellate 
Body Report, Australia – Apples , para. 441. WT/DS447/R  
 
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  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 "checkin g 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  
                                               
251 We find support for our interpretati on in the reasoning of the panel in US – Poultry (China) . That 
panel observed that the successful completion of the equivalence determination process undertaken by the United States' authorities was the only means by which any WTO Member had to export the products at issue 
into the United States. (Panel Report, US – Poultry (China) , para. 7.368) The panel attached relevance to this 
fact in dismissing the United States ' argument that Annex C does not cover equivalence determinations under 
Article 4 of the SPS Agreement. (Ibid. para. 7.359) 
252 Online Oxford English Dictionary , "check", 
http://www.oed.com/view/Entry/31082?rskey=V1iLGM&result=3#eid (last accessed November 2014). 
253 Online Oxford English Dictionary , "ensure", 
http://www.oed.com/view/Entry/62745?rskey=6qU6pb&result=2#eid (last accessed November 2014). See also Panel Report, India – Agricultural Products , para. 7.668. 
254 Appellate Body Report, US – COOL , para. 362 (referring to Panel Report, US – COOL , para. 7.692). 
255 Appellate Body Report, Australia – Apples , para. 172. 
256 Appellate Body Report, Australia – Apples , paras. 172-173. See also Panel Report, India – 
Agricultural Products , para. 7.139. 
257 See paras. 7.37-7.41 above. 
258 See paras. 7.37-7.41 above. We discuss the Unit ed States' ALOP for FMD more in detail in 
paras. 7.377-7.387 below. 
259 7 USC § 8303(a), (Exhibit USA-75). We will discuss 7 USC 8303(a) in section 7.6.2 below.  WT/DS447/R 
 
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  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 FM D-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 le gal 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 a pproval 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 
                                               
260 Argentina's first written submission, para. 596. 
261 Argentina's response to Panel question No . 68 following the first substantive meeting. 
262 Argentina's first written submission, para. 611 (citing Appellate Body Report, Australia – Apples , 
para. 437). 
263 Argentina's first written submission, para. 613 (citing Panel Report, EC – Approval and Marketing of 
Biotech Products , para. 7.1494). 
264 Argentina's first written submission, para. 617 (referring to Panel Report, EC – Approval and 
Marketing of Biotech Products , para. 7.1535).  
265 United States' first written submission, para. 202. WT/DS447/R  
 
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  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 fulfilled271; 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 requ est 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 cooper ating 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 Argentina277, especially as the request only sought to 
reinstate import rights previously granted during the period 1997-2001278 and APHIS had already 
reviewed the history of FMD outbreaks and othe r 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 
                                               
266 United States' first written submission, para. 189 (citing Panel Report, EC – Approval and Marketing 
of Biotech Products , para. 7.1497); United States' opening stat ement at the first meeting of the Panel, 
para. 46; United States' second written submission, para. 40. 
267 United States' response to Panel question No. 59 following the first substantive meeting. 
268 United States' first written submission, para. 190 (citing Panel Report, EC – Approval and Marketing 
of Biotech Products , para. 7.1495); United States' second written submission, para. 60. 
269 United States' first written submission, para. 244. 
270 United States' first written submission, para. 192 (citing Panel Report, EC – Approval and Marketing 
of Biotech Products , para. 7.1497). 
271 United States' first written submission, para. 194 (citing Panel Report, EC – Approval and Marketing 
of Biotech Products , para. 7.1498). 
272 United States' first written submission, para. 194 (citing Panel Report, EC – Approval and Marketing 
of Biotech Products , para. 7.1498). 
273 United States' second written submission, paras. 201, 320. 
274 United States' second written submission, para. 41. 
275 Argentina's first written submission, para. 620; Argentina's second written submission, para. 349. 
276 Argentina's first written submission, para. 632; Argentina's second written submission, para. 354. 
277 Argentina's first written submission, para. 639; Argentina's opening statement at the first meeting of 
the Panel, para. 80; Argentina's second written submission, para. 358. 
278 Argentina's first written submission, para. 639. 
279 Argentina's first written submission, para. 644. WT/DS447/R 
 
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  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 pr omptly reopened their markets to Argentine beef 
following the 2003 and 2006 FMD outbreaks is "indic ative 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, AP HIS 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 publish288, 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 requests293 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 
                                               
280 Argentina's first written submission, para. 639 (citing Articles 8.5.45 and 8.5.46 of the Terrestrial 
Code). See also Argentina's response to Panel ques tion No. 59 following the first substantive meeting. 
281 Argentina's first written submission, para. 640. 
282 Argentina's first written submission, para. 641; Argentina's opening statement at the first meeting of 
the Panel, para. 92; Argentina's second written submission, paras. 198, 364. 
283 Argentina's first written submission, para. 641; Argentina's opening statement at the first meeting of 
the Panel, para. 93. 
284 Argentina's response to Panel question No . 59 following the first substantive meeting. 
285 Argentina's second written submission, paras. 134, 197; Argentina's opening statement at the first 
meeting of the Panel, para. 86; Arge ntina's response to Panel question No. 68 following the first substantive 
meeting. 
286 Argentina's second written submission, para. 197. 
287 Argentina's second written submission, para. 262. 
288 Argentina's second written submission, para. 264. 
289 Argentina's second written submission, para. 264; Argentina's comments on the United States' 
response to Panel question No. 27 following the second substantive meeting. 
290 Argentina's second written submission, para. 265 (referring to Article 4 of the International Law 
Commission's Articles on the Responsibility of States  for Internationally Wrongf ul Acts (ILC Articles)). 
291 Argentina's first written submission, para. 642. Argentina's response to Panel question No. 68 
following the first substantive meeting; Argentina's second written submission, paras. 30, 32. 
292 Argentina refers, inter alia , to a piece of proposed legislation, the Foot and Mouth Disease Prevention 
Act of 2008, which was introduced in the United States' Congress in 2008 but never adopted, as evidence of 
alleged political interference in APHIS' approval process. (Argentina's first written submission, para. 633). 
293 Argentina's first written submission, paras. 634, 701. 
294 Argentina's first written submission, para. 701; Argentina's opening statement at the first meeting of 
the Panel, para. 18; Argentina's second written submission, paras. 385-389. WT/DS447/R  
 
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  Act295, 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 proc ess 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 informatio nal 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 Argentina301; 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 "signifi cant role" in APHIS' ve rification 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  
                                               
295 Argentina's first written submission, para. 702; Argentina's second written submission, 
paras. 390-392. 
296 Argentina's first written submission, para. 702. 
297 Argentina's second written submission, para. 357; Argentina's opening statement at the first meeting 
of the Panel, para. 81. 
298 United States' first written submission, para. 195. 
299 United States' first written submission, paras. 132-143, 197-199; United States' second written 
submission, paras. 42-43. 
300 United States' response to Panel question No. 62 following the first substantive meeting (underlining 
omitted). 
301 United States' first written submission, para. 140; United States' response to Panel question No. 62 
following the first substantive meeting. 
302 United States' first written submission, para. 200; United States' opening statement at the first 
meeting of the Panel, para. 14. 
303 United States' first written submission, para. 204; United States' opening statement at the first 
meeting of the Panel, para. 57; United States' response to Panel question No. 62 following the first substantive 
meeting.  
304 See United States' first written submission, para . 238; United States' response to Panel question 
No. 62 following the first substantive meeting. 
305 United States' response to Panel question No. 31 following the second substantive meeting. 
306 United States' response to Panel question No. 29 following the second substantive meeting. 
307 United States' response to Panel question No. 29 following the second substantive meeting. See also 
United States' first written submission, para. 204; United  States' response to Panel question No. 30 following 
the second substantive meeting. WT/DS447/R 
 
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  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
314, 
APHIS had not issued a final determination at the time of the establishment of the Panel.315 
Argentina notes that there has been no FMD outbreak in Patagonia South since 1976 and in 
Patagonia North B since 1994316, and that the OIE has continuously recognized Patagonia South as 
FMD-free where vaccination is not practised since 2002 and has extended the same recognition to Patagonia North B since 2007.
317 It also notes that APHIS published a favourable risk assessment 
for Patagonia South in July 2005 and a proposed rule to recognize Patagonia South as FMD-free in 
January 2007.318  
7.95.  Argentina points to several instances where it contends, APHIS' process incurred undue 
delays: (i) the two-year gap (2003-2005) between th e filing of its request and the publication of 
the risk assessment for Patagonia South; (ii) th e one-and-a-half year gap (2005-2007) between 
the publication of that risk assessment and the issu ance of the Proposed Rule for the recognition of 
Patagonia South; (iii) APHIS' failure to proceed with a Final Rule for Patagonia South after the 
issuance of the Proposed Rule; and (iv) APHIS' failure to proceed with a risk assessment and 
determination for the entire Patagonia region, comprising both Patagonia South and Patagonia North B, after 2009 (date of APHIS' site visit to the region).
319  
                                               
308 United States' response to Panel question No. 32 following the first substantive meeting. 
309 United States' response to Panel question No. 27 following the second substantive meeting. 
310 United States' first written submission, paras. 146, 223.  
311 United States' second written submission, Annex, para. 11. 
312 United States' response to Panel question No. 6 following the first substantive meeting. 
313 United States' first written submission, para. 226. See also United States' response to Panel question 
No. 2 following the first substantive meeting; United States' second written submission, Annex, para. 13. 
314 Argentina's first written submission, para. 672. 
315 Argentina's first written submission, para. 671. 
316 Argentina's first written submission, para. 671. See also Argentina's opening statement at the first 
meeting of the Panel, para. 94. 
317 Argentina's first written submission, para. 671. 
318 Argentina's first written submission, para. 664; Argentina's opening statement at the first meeting of 
the Panel, para. 94; Argentina's second written submission, paras. 367-368. 
319 Argentina's response to Panel question No . 68 following the first substantive meeting. WT/DS447/R  
 
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  7.96.  In this regard, Argentina submits that, afte r the 2009 site visit to Patagonia, APHIS did not 
request any further information from SENASA.320 Rather, Argentina remarks, in April 2009 APHIS 
confirmed that it currently had all the information required, and in September 2010 it stated that it had made significant progress towards the recognition of Patagonia as FMD-free.
321 This was 
confirmed, according to Argentina, by the Unit ed States' representative at the SPS Committee 
in June and October 2011.322 In Argentina's opinion, the ab ove statements by APHIS and the 
United States' representative at the SPS Committee indicate that, by 2009-2010, APHIS had 
already completed a risk assessment for Patagonia as a whole which it did not publish323, or, at 
least, that APHIS had all the information needed to complete one.324 
7.97.  As a benchmark for what constitutes a re asonable approval time, Argentina compares the 
duration of the recognition process for Patagonia with those for Japan, the United Kingdom, and 
Santa Catarina, which APHIS completed more expeditiously.325 Argentina contends that the Final 
Rule recognizing Santa Catarina as FMD-free in 2010 was part of an agreement reached between the United States and Brazil to settle the US – Upland Cotton  dispute.
326 
7.98.  As with the approval process for fresh (chilled or frozen) beef, Argentina claims that the 
cause of the delay in the recognition of Patagonia was not supported by scientific considerations327, 
but rather due to non-scientific factors.328 Argentina points, in particular, to Section 737 of the 
2009 Omnibus Appropriations Act  which, in its view, impeded the completion of APHIS' approval 
process for Patagonia.329  
7.99.  Finally, Argentina contends that the risk  assessment and the Proposed Rule for Patagonia 
issued by APHIS in January 2014 "do not change the parameters" of the dispute, as these 
documents post-date the establishment of the Panel.330 
7.3.3.3.2  United States 7.100.  The United States rejects Argentina's allegations of undue delay with respect to APHIS' 
review process for recognition of Patagonia as FMD-free. It asserts that, since the filing of 
Argentina's request concerning Patagonia South in July 2003, APHIS continuously engaged with SENASA by requesting supplemental informatio n and scheduling and conducting site visits.
331 
According to the United States, this process resulted in the publication, in June 2005, of APHIS' 
risk analysis for Patagonia South and, in January 2007, of a Proposed Rule to recognize Patagonia South as FMD-free within the meaning of 9 CFR 94.1(a).
332 The United States further observes 
that the Proposed Rule was conditional, given that "FMD continued to pose a risk to Patagonia 
South because of its geography and trading activity".333 It also explains that the one-and-a–half 
year gap between the publication of the risk asse ssment for Patagonia South and the publication of 
the Proposed Rule was due to APHIS' need to comp ly with the Regulatory Flexibility Act, Executive 
Order No. 12988, and the Paperwork Reduction Act.334 
                                               
320 Argentina's second written submission, paras. 270, 375; Argentina's response to Panel question 
No. 32 following the second substantive meeting. 
321 Argentina's second written submission, paras. 270, 375; Argentina's response to Panel question 
No. 32 following the second substantive meeting. 
322 Argentina's second written submission, paras. 271-273, 375. 
323 Argentina's first written submission, para. 689. 
324 Argentina's response to Panel question No . 24 following the first substantive meeting. 
325 Argentina's first written submission, para. 674; Argentina's second written submission, para. 379. 
326 Argentina's first written submission, para. 677; Argentina's second written submission, para. 225. 
327 Argentina's first written submission, para. 672. 
328 Argentina's first written submission, para. 682. Argentina refers, inter alia , to a letter from four 
United States senators to the Administ ration urging not to adopt the final rule for the recognition of Patagonia 
South as FMD-free until the rule has been reviewed by th e Office of Management and Budget. (Argentina's first 
written submission, para. 679; Argentina's opening stat ement at the first meeting of the Panel, para. 87). 
329 Argentina's first written submission, paras. 669, 701. 
330 Argentina's opening statement at the first meeting of the Panel, para. 98. 
331 United States' first written submission, paras. 150-153, 208-209. 
332 United States' first written submission, para. 209. 
333 United States' first written submission, para. 209. 
334 United States' response to Panel question No. 61 following the first substantive meeting. WT/DS447/R 
 
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  7.101.  The United States argues that any further delays in the processing of Argentina's request 
are not attributable to APHIS, but rather to changing FMD and regulatory conditions in Argentina throughout the review period, as well as to SE NASA's inaction in responding to requests for 
information.
335 In particular, the United States contends  that SENASA: (i) failed to provide some 
necessary information as part of its initial request for the recognition of Patagonia South 
in July 2003336; (ii) took almost one year to provide additional information requested by APHIS 
in March 2004 as a follow-up to its visit to Patagonia South337; and (iii) postponed APHIS' latest 
site visit to Patagonia, formally requested in March 2013338, until November 2013.339  
7.102.  Moreover, the United States stresses that Argentina extended its request for recognition to 
Patagonia North B in December 2008, i.e. more than five years after its original request for Patagonia South, without providing the necessary supporting information to address the factors 
listed under 9 CFR 92.2.
340 The United States submits that this restructuring of Argentina's initial 
request altered and delayed the process by requirin g APHIS to revise its evaluation to account for 
the distinct geographical differences between Patagonia South and Patagonia North B and to 
conduct a new site visit to Patagonia as a whole in February 2009.341  
7.103.  Finally, the United States points to Argentina's continuous "revisions to its surveillance 
regulations and slaughter establishment standards" throughout the approval process.342 In 
particular, it refers to Resolution No. 148/2008, which modified the conditions on transport of 
commercial goods into Patagonia South343, and Resolution No. 1282/2008, which "resulted in 
substantial changes to the methods of detectin g and preventing the spread of the disease".344 The 
United States claims that the modifications of border control measures such as those contained in 
Resolution No. 1282/2008, called into question SE NASA's ability to prevent FMD from penetrating 
its borders.345 Furthermore, the United States contends that at the time of APHIS' site visit to 
Patagonia in February 2009, Resolution No. 1282/2008 had not been fully implemented346; 
therefore, it could not adequately assess the impact of the revision on Patagonia's ability to control 
FMD.347 
7.104.  In light of the above, the United States maintains that APHIS did not have all the 
information necessary to complete its risk assessment for Patagonia as a whole (comprising both 
Patagonia South and Patagonia North B) until it conducted its site visit to the region in November 2013.
348 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.349 In this regard, the 
United States disagrees with Argentina's characterization of the statements by APHIS in September 2010 and by the United States' representative before the SPS Committee 
                                               
335 United States' first written submission, paras. 202, 217. 
336 United States' first written submission, paras. 151, 208; United States' response to Panel question 
No. 62 following the first substantive meeting. 
337 United States' first written submission, paras. 152, 208; United States' response to Panel question 
No. 62 following the first substantive meeting. 
338 We note that the United States refe rs to the fact that it orally ment ioned the possibility of a site visit 
during consultations with Argentina in November 2012. However, the formal written request was sent 
in March 2013. 
339 United States' first written submission, para. 216; United States' opening statement at the first 
meeting of the Panel, para. 14; United States' resp onse to Panel question No. 32 following the second 
substantive meeting. 
340 United States' first written submission, para. 215. 
341 United States' first written submission, para. 215. See also United States' response to Panel question 
No. 33 following the second substantive meeting. 
342 United States' first written submission, para. 213. 
343 United States' first written submission, para. 210. 
344 United States' first written submission, para. 210. 
345 United States' first written submission, para. 211. 
346 United States' first written submission, para. 212. United States' response to Panel question No. 34 
following the second substantive meeting. 
347 United States' first written submission, para. 212. United States' response to Panel question No. 34 
following the second substantive meeting. 
348 United States' response to Panel question No. 33 following the second substantive meeting. 
349 United States' response to Panel question No. 33 following the second substantive meeting. WT/DS447/R  
 
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  in June and October 2011. The United States asserts that, at the time such statements were 
made, APHIS did not have enough information to complete a risk assessment for Patagonia.350 
7.105.  Finally, for the same reasons outlined in paragraph 7.93 above, the United States 
disagrees that Section 737 of the 2009 Omnibus Appropriations Act  contributed to delays in APHIS' 
review processes of Argentina's request. 
7.3.3.4  Main arguments of the third parties 7.3.3.4.1  China 
7.106.  In China's view, Annex C(1)(a) is "essentia lly a good faith obligation requiring Members to 
proceed with their approval procedures as promptly as possible, taking account of the need to check and ensure the fulfilment of their relevant SPS requirements".
351 In addition, according to 
China, the terms "undertake and complete" in Anne x C(1) indicate that approval procedures are 
not only to be undertaken, but are also to be finished, or concluded without undue delay.352 
Moreover, China relies on the panel report in EC – Approval and Marketing of Biotech Products  in 
stating that an "undue delay" is determined not by the length of the delay, but by whether the 
delay is justified.353  
7.107.  China considers that a decade-long wait for approval "constitutes a delay" within the 
meaning of Annex C(1) of the SPS Agreement.354 Therefore, the focus of the dispute should be on 
whether such delay is justifiable or not.355 Furthermore, China takes the view that Section 737 of 
the 2009 Omnibus Appropriations Act  precluded the United States from issuing a risk assessment 
and from even initiating a rulemaking process to permit importation from Argentina.356 For these 
reasons, China considers that Argentina's claims with respect to undue delay should prevail. 
7.3.3.4.2  European Union 
7.108.  According to the European Union, the question arises whether a Member in receipt of an 
application that it does not yet find complete or convincing is necessarily required to adopt a 
negative decision or may rather postpone the decision until such time as it has established that 
products from the applicant Member are suitable for import.357 In the European Union's view, 
postponing the decision until it can be favourable to imports may curtail the complaining Member's 
possibility to benefit from a full representation of the matter in the framework of dispute 
settlement.358 Conversely, requiring the Member to adop t a negative determination would trigger 
the question as to when such a determination is due and would raise doubts as to its utility in case the circumstances subsequently change.
359 For the European Union, the answer to the question 
should depend on a case-by-case analysis by panels.360 
7.109.  The European Union takes the view that, especially in the absence of a specific negative 
decision, the complaining and defending Members should be expected to provide an exhaustive 
and duly evidenced description of any material re levant to the question of the passage of time.361 
Only then, the European Union argues, could a panel make an objective assessment of whether or not the passage of time is justified, based on all the facts and evidence.
362  
                                               
350 United States' response to Panel question No. 33 following the second substantive meeting. 
351 China's third-party submission, para. 70. 
352 China's third-party submission, para. 70. 
353 China's third-party submission, para. 71. 
354 China's third-party submission, para. 72. 
355 China's third-party submission, para. 72. 
356 China's third-party submission, para. 73. See also China's third-party statement, para. 10. 
357 European Union's third-party submission, para. 108. 
358 European Union's third-party submission, para. 109. 
359 European Union's third-party submission, para. 110. 
360 European Union's third-party submission, para. 111. 
361 European Union's third-party submission, para. 114. 
362 European Union's third-party submission, para. 114. WT/DS447/R 
 
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  7.3.3.5  Analysis by the Panel 
7.110.  Annex C(1)(a) of the SPS Agreement requires Members to ensure that control, inspection, 
and approval procedures are "undertaken and co mpleted without undue delay". We examine the 
meaning of each term of the provision in turn. 
7.3.3.5.1  "Undertaken and completed" 
7.111.  We note that Annex C(1)(a) requires that procedures be "undertaken and completed 
without undue delay". Prior panels have focused on each term separately and as distinct 
obligations. In the past the term "undertake" has been understood to refer to the beginning363 or 
commencement364 of the approval procedure. In turn, panels and the Appellate Body have stated 
that the term "complete" indicates that "approval  procedures are not only to be undertaken, but 
are also to be finished, or concluded".365 
7.112.  We agree with these interpretations. Moreover, we also believe that the term "undertaken 
and completed without undue delay" includes not only no undue delay in the commencement of the procedure and its completion, but also in the intervening process that leads from 
commencement to completion. We find support for this understanding from the definition of the 
verb "to undertake" which is "[t]o take upon onesel f; to take in hand[;] … [t]o take in charge; to 
accept the duty of attending to or looking after"
366, as well as in the reasoning of the panels in EC 
– Approval and Marketing of Biotech Products and US – Poultry (China) that "once an application 
has been received, approval procedures must be started and then carried out from beginning to end".
367 The requirement to carry out an approval procedure to the end should not be confused 
with an obligation for the importing Member to approve  the importation of the product(s) subject 
to the procedure. Pursuant to Annex C(1)(a), the importing Member is simply required to issue a 
final determination regardless of whether it be positive or negative.368  
7.3.3.5.2  "Without undue delay" 
7.113.  We now turn to the interpretation of wh at constitutes an undue delay within the meaning 
of Annex C(1)(a). In our view, not every lapse of time amounts to a delay, as a certain period of 
time is usually necessary for a Member to under take and complete a control, inspection or 
approval procedure. The panel in EC – Approval and Marketing of Biotech Products found that a 
"delay" is "(a period of) time lost by inaction or inability to proceed".369 The requirements in 
Annex C(1)(b) provide context for this interpretation, particularly the requirements for the competent authorities to "promptly examine[] th e completeness of the documentation" and to 
"inform[] the applicant in a precise and complete manner of all deficiencies". In our view, these 
requirements support an understanding that the no rmal course of a procedure requires competent 
authorities to actively engage with the applicant Member on the substance of its application. Thus, 
inaction or an inability to proceed on the substance of the application would constitute something 
                                               
363 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1494 (explaining that "[t]he 
verb 'undertake' makes clear that Members are required to  begin, or start, approval  procedures after receiving 
an application for approval "). See also Panel Report, EC – Seal Products , para. 7.562. The panel in EC – Seal 
Products  expressed its opinion in the context of Article 5.2.1 of the TBT Agreement. It also found that, "[g]iven 
the similarity in the text, we agree … that there are cert ain parallels in the terms an d scope of Article 5.2.1 of 
the TBT Agreement and Annex C(1)(a) of the SPS Agreement". (Panel Report, EC – Seal Products , para. 7.561) 
364 Appellate Body Report, Australia – Apples , para. 438. 
365 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1494. See also Panel 
Reports, US – Poultry (China) , para. 7.383; EC – Seal Products , para. 7.562; Appellate Body Report, Australia 
– Apples , para. 438. 
366 Online Oxford English Dictionary , "undertake", 
http://www.oed.com/view/Entry/212141?isAdvanced=false&result=2&rskey=s7YzPE& (last accessed November 2014). 
367 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1494;  US – Poultry (China) , 
para. 7.383. 
368 This interpretation finds support in the language of  Annex C(1)(b), in the part  where it requires that 
"the competent body transmit[] as soon as possible the results of the procedure in a precise and complete 
manner to the applicant so that correct ive action may be taken if necessary". 
369 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1495. See also Appellate 
Body Report, Australia – Apples , para. 437. WT/DS447/R  
 
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  outside the normal course of the procedure and sh ould be considered a delay within the meaning 
of Article 8 and Annex C(1)(a).  
7.114.  In our view, a determination of whether a delay exists should be made in light of the 
nature and complexity of the procedure to be undertaken and completed.370 In certain instances, 
the ordinary or expected time to carry out a procedure may not be easily ascertained. For 
example, the relevant regulations governing the procedure may not establish a precise time-frame 
within which each step has to be conducted. In our view, this is the case with 9 CFR 92.2. Indeed, 
as the United States explained, APHIS does not have a standard or average time-period required 
for the completion of its review processes.371 Rather, the length of time required for it to evaluate 
a request "depend[s] on the specific circumstances of each case", as applicant Members present different SPS circumstances that "may also affected by law, policy, governance, and veterinary 
infrastructures".
372 Therefore, in making our assessment of whether delays occurred with respect 
to Argentina's applications, the Panel cannot simply compare the time taken to review Argentina's applications to a standard processing time. Inst ead, the Panel must examine each of the time-
periods identified by Argentina as delays to determine whether they were periods when the 
procedure did not move forward because of inaction or inability to proceed.  
7.115.  We recall that the panel in EC – Approval and Marketing of Biotech Products  explained "not 
every delay in the undertaking or completion of approval procedures" is contrary to the provisions 
of Annex C(1)(a), but only one that is undue.
373 That panel found that the ordinary meaning of the 
term undue is "[g]oing beyond what is warranted" and "unjustifiable".374 The panel in US – Poultry 
(China)  similarly stated that the ordinary meaning of the phrase "without undue delay" requires 
that "approval procedures be undertaken and completed with no unjustifiable loss of time".375 In 
other words, what matters is whether there is a legitimate reason, or justification, for a given delay, not the length of a delay as such.
376 Therefore, the analysis of a claim under Article 8 and 
Annex C(1)(a) requires two steps. First, the complainant must establish that there has been a 
delay. Second, the complainant must establish that the delay was undue. 
7.116.  The panels in EC – Approval and Marketing of Biotech Products and US – Poultry (China)  
explained that the determination of what constitu tes an undue delay must be made "on a case-by-
case basis, taking account of relevant facts and circumstances".377 The panel in EC – Approval and 
Marketing of Biotech Products provided some guidance on the types of circumstances that might 
justify a delay taken in carrying out a procedure subject to the obligation in Annex C(1)(a). First, 
delays attributable to action or inaction of an applicant cannot be held against the Member 
carrying out the procedure.378 Second, delays which "are justified in their entirety" by the 
Members' need "to determine with adequate confidence whether their relevant SPS requirements 
are fulfilled" should not be considered undue.379 Third, if "new or additional information becomes 
available at a late stage in an approval procedure" and that information may reasonably be considered to "have a potential impact on a Member's determination", it "might be justifiable for 
                                               
370 In this regard, we note that, in determining an a ppropriate period of time for implementation of the 
DSB's recommendations or rulings under Article 21.3(c) of the DSU, the arbitrator in US – Hot-Rolled Steel 
(Article 21.3(c))  stated that "[t]he degree of complexity of the contemplated implementing legislation may … 
bear[] upon the length of time that may reasonably be allocated to the enactment of such legislation". (Award of the Arbitrator, US – Hot-Rolled Steel (Article 21.3(c)) , para. 30. See also Award of the Arbitrator, Canada – 
Pharmaceutical Patents (Article 21.3(c)) , para. 50) 
371 United States' response to Panel question No. 60 following the first substantive meeting. 
372 United States' response to Panel question No. 66 following the first substantive meeting. 
373 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1495. 
374 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1495. 
375 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1495;  US – Poultry (China) , 
para. 7.354. See also See also Appellate Body Report, Australia – Apples , para. 437. 
376 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1496;  US – Poultry (China) , 
para. 7.354. 
377 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1497. See also Panel 
Report, US – Poultry (China) , para. 7.354; Appellate Body Report, Australia – Apples , para. 437. 
378 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1497;  US – Poultry (China) , 
para. 7.354. 
379 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1498. WT/DS447/R 
 
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  the Member concerned to delay the completion of the procedure" in order to assess the 
information.380  
7.117.  Applying this reasoning to the present dispute, we consider that the period of 11 years 
following Argentina's requests during which APHIS was conducting the procedure is not, in and of 
itself, conclusive as to whether such procedures incurred undue delay inconsistently with Article 8 
and Annex C(1)(a). Rather, we shall conduct our analysis based on all the relevant facts and circumstances presented by the parties. That being said, it would be difficult for us to gauge the 
reasonableness of the length of time of APHIS' review processes in the absence of a point of 
reference. Therefore, we find it useful to rely on a number of indicators that, without being dispositive of our assessment, may nonetheless assist us in our analysis. Such indicators include the standard processing time reflected in APHIS' own policy and practice as well as guidelines 
provided by the OIE. 
7.118.  We note that a claim of undue delay necessarily refers to acts or omissions over a period 
of time. In order to precisely define the scope of our review, we consider it necessary to identify 
an end-date for the period of time we take into  account for the purpose of assessing the alleged 
undue delays in the conduct of APHIS' pr ocedures. The Appellate Body stated in EC – Chicken Cuts  
that, as a general rule, the measures subject to a panel's review "must be measures that are in 
existence at the time of the establishment of the panel".
381 Further, the panel in EC – Approval and 
Marketing of Biotech Products  conducted its analysis of the parties' claims and arguments under 
Article 8 and Annex C(1)(a) based on the situ ation that existed up to the date of its 
establishment.382 In light of the above, we take the view that the appropriate end-date of the 
p e r i o d  o f  t i m e  t o  b e  c o n s i d e r e d  i n  o r d e r  t o  e x a m i n e  A r g e n t i n a ' s  c l a i m s  i s  t h e  d a t e  o f  t h e  
establishment of the Panel, namely 28 January 2013.383 
7.119.  With these considerations in mind, we now turn to Argentina's claims that APHIS' review 
processes of its requests incurred undue delays inconsistently with Article 8 and Annex C(1)(a).  
7.3.3.5.3  APHIS' review process of Argent ina's request concerning imports of fresh 
(chilled or frozen) beef from Northern Argentina 
7.120.  We shall assess, first, whether APHIS' review process of Argentina's request concerning 
imports of fresh (chilled or frozen) beef from Northern Argentina incurred a delay. If so, we shall turn to determining whether such a delay was undue. For ease of reference, we include the events relevant to Argentina's request for market access including APHIS' review and the Panel 
proceedings in Table 1 below. We also refer to the more comprehensive chronology contained in 
Appendix 1 to this Report for further information. 
Table 1: Chronology of events relating to  APHIS' review of Argentina's request for 
imports of fresh (chilled or frozen) beef  from Northern Argentina and the Panel 
proceedings 
No. Event Date Interval 
(approx.) 
1.  SENASA submitted a request for authorization of 
imports of Argentine fresh (chilled or frozen) beef into the United States pursuant to 9 CFR 92.
384 Nov. 2002  
2.  Officials from the United St ates met with Argentina 
officials and requested technical documents to allow 
for the initiation of a risk analysis.385 16 Dec. 2002 1 month 
                                               
380 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1498. 
381 Appellate Body Report, EC – Chicken Cuts , para. 156. 
382 See Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.456. Indeed, the panel 
disregarded arguments put forward by the defendant in  justification for its delays when those arguments 
referred to events which occurred after its establishment. See Ibid. paras. 7.1034, 7.1081, 7.1083. 
383 WT/DS447/3. 
384 Information Provided by SENASA (November 2002), (Exh ibit USA-32). 
385 Letter from Dr. Bernardo Cane (SENASA, President) to APHIS (30 December 2002), (SENASA's letter 
of 30 December 2002), (Exhibit USA-79). In the communication, Argentina confirms that it submitted the technical documents the United States requested during the course of the 16 December meeting. WT/DS447/R  
 
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  No. Event Date Interval 
(approx.) 
3.  Officials from the United St ates and Argentina animal 
health officials met to discuss a range of issues.386 
During the meeting, the countries confirmed that a technical team would visit Argentina in September 2003 to discuss the status of FMD.
387 23 Apr. 2003 4 months 
4.  SENASA notified the OIE of the presence of animals 
with symptoms similar to FMD in the city of Tartagal, 
Department of San Martin, Province of Salta.388 28 Aug. 2003 4 months 
5.  Suspicion of an FMD outbreak in the city of Tartagal, 
Department of San Martin, Province of Salta.389 
SENASA notified APHIS of the situation on the same day.
390 29 Aug. 2003 1 day 
6.  Outbreak of Type "O" confirmed in the city of Tartagal, 
Department of San Martin, Province of Salta. A 
SENASA epidemiological report performed on pigs in 
the establishment concerned revealed that 16 pigs 
were infected, 2 of which died.391   2 Sep. 2003 4 days 
7.  APHIS arranged to perform a site visit 
in September 2003 to the Argentina region bordering Bolivia. However, the visit was cancelled by SENASA.
392  Sep. 2003 1 month 
8.  APHIS requested additional information from SENASA 
with respect to the FMD outbreak in Salta and notified 
SENASA of the model APHIS would use to assess the 
risk of FMD and the ensuin g requests fo r additional 
information to develop input parameters.393 3 Oct. 2003 1 month 
9.  An additional APHIS site visit was scheduled to occur 
on 6 October 2003; however,  SENASA notified APHIS 
of the FMD outbreak.394 APHIS cancelled the visit.395 6 Oct. 2003 3 days 
10. APHIS reiterated its desire to conduct the site review 
because the visit was im portant to further its 
evaluation of FMD in Argentina.396  14 Oct. 2003 8 days 
11. SENASA submitted its response to 
APHIS' October 2003 request for additional information in connection with Argentina's request for imports of fresh (chilled or frozen) beef.
397 Nov. 2004 11 months 
                                               
386 Facsimile from Rodolfo Acerbi (Uni ted States Department of Agricu lture, Animal and Plant Health 
Inspection Service, USDA, APHIS) to Philip Schull (U.S. Embassy in Argentina) (29 April 2003), (APHIS' facsimile of 29 April 2003), (Exhibit USA-80). 
387 APHIS' facsimile of 29 April 2003, (Exhibit USA-80). 
388 Argentina's first written submission, para. 112. 
389 Report of the Meeting of the OIE Scientific Commission for Animal Diseases (December 2003), 
(Exhibit USA-81). 
390 Letter from Miguel Santiago Campos (SENASA) to United States Department of Agriculture, Animal 
and Plant Health Inspection Service, USDA, APHIS (29 August 2003), (SENASA's letter of 29 August 2003), 
(Exhibit USA-83). 
391 Facsimile from Jose Molina, Minister Embassy  of Argentina, to Pe ter Fernandez, APHIS 
(5 September 2003), (Argentina's facsimile of 5 Se ptember 2003), (Exhibit USA-51); SENASA's letter of 
29 August 2003, (Exhibit USA-83). 
392 Letter from Pablo Kalnay (Unite d States Department of Agriculture, Animal and Plant Health 
Inspection Service, USDA, APHIS) to Dr. Jorge N. Amaya (SENASA, President) (14 October 2003), (APHIS' 
letter of 14 October 2003), (Exhibit USA-82). 
393 Letter from W. Ron DeHaven (United States Depart ment of Agriculture, An imal and Plant Health 
Inspection Service, USDA, APHIS, Deputy Administra tor) to Dr. Jorge N. Amaya (SENASA, President) 
(3 October 2003), (APHIS' letter of 3 October 2003), (Exhibit USA-84). 
394 SENASA's letter of 29 Augu st 2003, (Exhibit USA-83). 
395 APHIS' letter of 3 October 2003, (Exhibit USA-84). 
396 APHIS' letter of 14 October 2003, (Exhibit USA-82). 
397 Further information requested by  USDA-APHIS of the 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 
 WT/DS447/R 
 
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  No. Event Date Interval 
(approx.) 
12. Prior to the scheduled visit to Northern Argentina, 
APHIS requested additional information from SENASA 
to assist in compiling data to be used in the 
quantitative and qualitativ e risk analysis of the 
Argentine region north of the 42nd parallel.398 21 Apr. 2005 5 months 
13. APHIS conducted the scheduled site visit to the 
Argentina territory nort h of the 42nd parallel.399  30 May 2005- 
3 Jun. 2005 1 month 
14. APHIS requested additional information from SENASA 
in light of a strike by SENASA personnel.400  4 Aug. 2005 1 month 
15. SENASA sent a letter to APHIS reporting about 
SENASA strikes, and stating that such strikes did not affect emergency services.
401 5 Dec. 2005 5 months 
16. Two outbreaks of "type O" FMD occurred in San Luis 
del Palmar, Province of CORRIENTES.402 5 Feb. 2006 2 months 
17. The president of SENASA notified the FMD outbreaks 
in San Luis del Palmar, Province of CORRIENTES to the OIE.
403 
SENASA enacted Resolution 35/2006 establishing a sanitary alert which covere d a zone comprising the 
affected department i.e. San Luis del Palmar, and the seven neighbouring departments i.e.: Capital; San Cosme; Itatí; Berón de Astrada; General Paz; Mburucuya; and Empedrado.
404 8 Feb. 2006 3 days 
18. APHIS requested info rmation regarding the outbreak in 
the Province of CORRIENTES.405 10 Feb. 2006 2 days 
19. APHIS contacted SENASA in connection with 
Argentina's request for auth orization of imports of 
fresh (chilled or frozen) beef. APHIS informed SENASA 
that, in order to conclude its risk analysis, APHIS considered it necessary to arrange a visit to the Province of CORRIENTES to evaluate the area affected by the FMD outbreaks. APHIS proposed to conduct the visit in August.
406  27 Jun. 2006 1 month 
                                                                                                                                               
Foot and Mouth Disease (FMD) (November 2004), (Information on Northern Argentina provided by SENASA) 
(November 2004), (Exhibit ARG-86).  
398 Letter from Thomas C. Schissel (United States Department of Agri culture, Animal and Plant Health 
Inspection Service, USDA, APHIS) to Arturo Ortiz (S ENASA) (21 April 2005), (APHIS' letter of 21 April 2005), 
(Exhibit USA-91). 
399 Letter from John R. Clifford (Uni ted States Department of Agriculture, Animal and Plant Health 
Inspection Service, USDA, APHIS) to Jorge N. Amaya (SENASA, President) (7 July 2005), (APHIS' letter of 
7 July 2005), (Exhibit USA-92). 
400 Letter from John R. Clifford (Uni ted States Department of Agriculture, Animal and Plant Health 
Inspection Service, USDA, APHIS, Deputy Administra tor) to Dr. Jorge N. Amaya (SENASA, President) 
(4 August 2005), (APHIS' letter of 4 August 2005), (Exhibit USA-93). 
401 Letter from SENASA to APHIS reporting abou t SENASA strike, CRI 1968/05 (5 December 2005), 
(SENASA's letter of 5 December 2005), (Exhibit ARG-96). 
402 Veterinary Services (VS), Foot and Mouth Disease Argentina Impact Worksheet  (15 February 2006), 
(FMD Impact Worksheet), (Exhibit USA-54). See also OIE Disease Information, Vol. 19, No. 6, p. 96. 
403 OIE, Final Report, 74th General Session (2006), (Exhibit USA-55), pp. 45, 144.  
404 Argentina's first written submission, para. 117;  Resolución SENASA Nº 35/06, (Resolución SENASA 
35/2006), (Exhibit ARG-5).  
405 Letter from John R. Clifford, Deputy Administrator,  Veterinary Services, APHIS, to Jorge N. Amaya, 
President, SENASA (10 February 2006), (APHIS' le tter of 10 February 2006), (Exhibit ARG-38). 
406 Letter from Thomas Schissel (Uni ted States Department of Agricu lture, Animal and Plant Health 
Inspection Service, USDA, APHIS, Area Director) to  Jorge N. Amaya (SENASA, President) (27 June 2006), 
(APHIS' letter of 27 June 2006), (Exhibit USA-94). WT/DS447/R  
 
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  No. Event Date Interval 
(approx.) 
20. In response to APHIS' re quest for information of 10 
February 2006, SENASA submitted a report to APHIS 
detailing the actions taken by SENASA in response to 
the FMD outbreaks in the Province of CORRIENTES and 
to ensure the preservation of the FMD-free where 
vaccination is not practised status of Patagonia 
South.407 26 Jul. 2006 1 month 
21. APHIS visited the areas affected by the FMD outbreaks 
and performed an audit.408 6-8 Sep. 2006  1.5 months 
22. SENASA sent APHIS a letter detailing the information 
exchange with respect to  Argentina's request for 
authorization to import fresh (chilled or frozen) beef, 
highlighting its concern at APHIS not being able to 
reopen access to beef from Argentine territory located 
North of Rio Negro, and asking that the outcome 
foreseen for Argentina's request be elucidated in a 
timely fashion.409 19 Jul. 2010 4 years 
23. APHIS responded to SENASA's letter of 19 July 2010 
stating that APHIS was "currently drafting a proposed rule that would allow the im portation of fresh, chilled, 
or frozen Argentine beef under certain conditions".
410 24 Sep. 2010 2 months 
24. The United States stated before the SPS Committee 
that APHIS had "completed th e risk analysis regarding 
the region north of the 42nd parallel and would 
subsequently draft a proposal  to allow the importation 
of beef under certain conditions".411 30 Jun. 2011 9 months 
25. The United States reiterated before the 
SPS Committee that APHIS had "completed the assessment and was drafting a proposal to allow the importation of beef under ce rtain conditions. When the 
assessment and rules were completed in the near future, the United States would be able to provide market access for Argentine beef".
412 19 Oct. 2011 3.5 months 
26. Argentina requested consultations with the 
United States at the WTO.413 30 Aug. 2012 10 months 
27. The United States and Argentina met in Washington 
DC in the framework of the Consultations being held 
pursuant to Article 4 of the DSU.  28 Nov. 2012 3 months 
28. Argentina requested the establishment of a panel.414 6 Dec. 2012 8 days 
29. The DSB established the Panel with standard terms of 
reference.415 28 Jan. 2013 2 months 
                                               
407 Letter from Dr Jorge Amaya, SENASA, to Dr John C lifford, APHIS, concerning the eradication of the 
San Luis del Palmar (Corrientes) outbreak (26 July 2006), (SENASA's letter of 26 July 2006), (Exhibit ARG-97). 
408 Letter from Jorge N. Amaya, President, SENASA,  to John R. Clifford, Deputy Administrator, 
Veterinary Services, APHIS, Note No. 150/2010 (19 July 2010), (SENASA's letter of 19 July 2010, Note No. 150/2010), (Exhibit ARG-46). 
409 SENASA's letter of 19 July 2010, No te No. 150/2010, (E xhibit ARG-46). 
410 Letter from John R. Clifford, Deputy Administrator,  Veterinary Services, APHIS to Jorge N. Amaya, 
President, SENASA (24 Septembe r 2010), (APHIS' letter of 24 Se ptember 2010), (Exhibit ARG-47). 
411 Committee on Sanitary an d Phytosanitary Measures, Summary of the Meeting of 30 June-
1 July 2011 , Note by the Secretariat, G/SPS/R/63 (12 September 2011), (G/SPS/R/63), (Exhibit ARG-22), 
paras. 17-18.  
412 Committee on Sanitary an d Phytosanitary Measures, Summary of the Meeting of 19-
20 October 2011 , Note by the Secretariat, G/SPS/R/64 (17 January 2012), (G/SPS/R/64), (Exhibit ARG-48), 
paras. 96-97. 
413 Argentina's request for consultations, WT/DS447/1. 
414 Argentina's request for the establishment of a panel, WT/DS447/2. 
415 Argentina's first written submission, para. 21. WT/DS447/R 
 
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  No. Event Date Interval 
(approx.) 
30. APHIS wrote to SENASA summarizing the issues 
discussed in the Consultations on 28 November 2012 
between Argentina and United States officials, 
including APHIS' suggestion to conduct a new site visit 
to Northern Argentina and Patagonia. In the letter, 
APHIS formally requested permission from SENASA to 
conduct the site visit in order to progress with the 
review of Argentina's request.416 13 Mar. 2013 1.5 months 
31. SENASA agreed to the visit proposed by APHIS on 
13 March 2013, but stated that the sanitary situation in Argentina had not changed.
417 3 Jul. 2013 3.5 months 
32. APHIS replied to SENASA's 3 July 2013 letter stating 
that it was ready to schedule the agreed visit to 
Argentina as soon as possible. APHIS also stated its 
understanding that Argentina preferred that the site 
visit occur during the last week of October or the first 
week of November 2013.418  15 Jul. 2013 10 days 
33. The Panel was composed by the Director-General on 
8 August 2013. 8 Aug. 2013 Add time 
34. APHIS visited Argentina to co nduct the site review with 
regard to the approval of imports of Argentine fresh 
(chilled or frozen) beef under certain conditions.419 1st week of Nov. 2013 4 months 
35. The Panel held the first substantive meeting with the 
parties. 28-29 Jan. 2014 3 months 
36. APHIS published a risk assessment for Northern 
Argentina, dated April 2014, stating that the risk of 
introduction of FMD stemmi ng from imports of fresh 
(chilled or frozen) beef from the region was "low"420, 
as well as a Proposed Rule to allow imports of such 
product under the same protocols as those applied to 
fresh (chilled or frozen) beef from Uruguay.421 29 Aug. 2014 7 months 
37. The Panel held the meeting with the parties and the 
experts on 2 September 2014 and the second substantive meeting with the parties on 4-5 September 2014. 1st week of Sep. 2014 3 days 
 
7.3.3.5.3.1  Whether the procedure incurred delays 
7.121.  In order to determine whether APHIS' review of Argentina's request for authorization of 
imports of fresh (chilled or frozen) beef from Northern Argentina incurred a delay, we must 
conduct an assessment of the facts relevant to such procedure. We recall that a "delay" is a period of time lost by inaction or inability to proceed on the part of the authority carrying out the 
procedure.
422 
7.122.  The United States asserts, and Argentina does not disagree, that APHIS began its review 
process promptly upon receiving Argentina's request for imports of fresh (chilled or frozen) beef in 
                                               
416 Letter from Dr. Peter J. Fernandez (United States Department of Agri culture, Animal and Plant Health 
Inspection Service, USDA, APHIS, Acting Associate Admi nistrator) to Marcelo S. Miguez (SENASA, President) 
(13 March 2013), (APHIS' letter of 13 March 2013), (Exhibit USA-96). 
417 Letter from Dr Miguez, SENASA to Dr Peter Fernandez, APHIS (13 July 2013), (SENASA's letter of 
13 July 2013), (Exhibit ARG-99). 
418 Letter from Kevin Shea (United Stat es Department of Agri culture, Animal and Plant Health Inspection 
Service, USDA, APHIS, Administrator) to Marcelo S. Mi guez (SENASA, President) (15 July 2013), (APHIS' letter 
of 15 July 2013), (Exhibit USA-97). 
419 United States' first written submission, para. 162. 
420 2014 Risk Analysis for Northern  Argentina, (Exhibit USA-169). 
421 Importation of Beef From  a Region in Argentina , 79 Fed. Reg. 51508 (29 August 2014) (Proposed 
Rule), (2014 Proposed Rule on Northern Argentina), (Exhibit USA-168). 
422 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1495. See also Appellate 
Body Report, Australia – Apples , para. 437. WT/DS447/R  
 
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  November 2002.423 Indeed, the first meeting between the United States and Argentina with 
respect to Argentina's request took place one month after the application. At that meeting, APHIS requested SENASA to provide relevant documentat ion in order to initiate the risk analysis.
424 
7.123.  From that moment until September 2006, exchanges occurred between APHIS and 
SENASA. APHIS asked SENASA to provide further information concerning the FMD situation in 
Northern Argentina on several occasions, namely in October 2003, April 2005 and February 2006.
425 APHIS also conducted two site visits to Northern Argentina in May-June 2005 
and September 2006, in accordance with its approval practice.426 These follow-up requests for 
additional information and the two site visits were in the context of events subsequent to 
Argentina's initial application, including FMD outbreaks in different parts of Northern Argentina in September 2003 and February 2006
427 and a labour strike at SENASA in 2005. 428 The evidence 
on record shows that SENASA complied with APHI S' requests by submitting the additional 
information and by agreeing to the proposed site visits to Northern Argentina.429 On one occasion, 
SENASA took over one year (i.e. from October 2003 to November 2004) to answer additional 
questions posed by APHIS.430  
7.124.  Based on the foregoing, we consider that, at this stage of the procedure, matters 
progressed at a reasonable pace and the only delay between the initial application 
and September 2006 was the 13 months between APHIS' request in October 2003 and SENASA's 
answer in November 2004. 
7.125.  Following APHIS' site visit to Northern Argentina in September 2006, APHIS did not 
communicate with SENASA on the application for almost four years. In July 2010, SENASA sent a 
letter expressing concern regarding APHIS' silence and requesting that the "outcome foreseen for 
the request made by Argentina" be "elucidated in a timely time-frame."431 On 24 September 2010, 
APHIS replied that APHIS was "currently drafting a proposed rule that would allow the importation 
of fresh, chilled, or frozen Arge ntine beef under certain conditions".432 APHIS added that the time 
required to complete the procedure was necessary to ensure the thoroughness and transparency of APHIS' decision-making.
433 In June and October 2011, the United States' representative at the 
SPS Committee sessions, responding to a specific trade concern raised by Argentina, stated that 
APHIS had "completed the risk analysis regarding the region north of the 42nd parallel and would subsequently draft a proposal to allow the importation of beef under certain conditions".
434 Despite 
these statements concerning the progress on Argentina's request, APHIS did not issue a 
determination concerning imports of fresh (chilled or frozen) beef from Northern Argentina, nor did 
it request any further information from SENASA until it suggested a new site visit in November 2012 during the consultations related to these proceedings.  
7.126.  In March 2013, when these dispute settlement proceedings were already under way, 
APHIS formally requested permission from SENASA to conduct a new site visit to Northern Argentina in order to progress with the review of Argentina's request.
435 SENASA agreed that the 
                                               
423 See United States' first written submission, para. 197; Argentina's response to Panel question No. 68 
following the first substantive meeting. 
424 SENASA's letter of 30 Decemb er 2002, (Exhibit USA-79). 
425 SENASA's letter of 30 December 2002, (Exhibit  USA-79); APHIS' letter of 3 October 2003, 
(Exhibit USA-84); APHIS' letter of 21 April 2005, (E xhibit USA-91); APHIS' letter of 10 February 2006, 
(Exhibit ARG-38). 
426 APHIS' letter of 7 July 2005, (Exhibit USA-92 ); SENASA's letter of 19 July 2010, Note No. 150/2010, 
(Exhibit ARG-46). 
427 Argentina's facsimile of 5 Sept ember 2003, (Exhibit USA-51); SEN ASA's letter of 29 August 2003, 
(Exhibit USA-83); FMD Impact Worksheet, (Exhibit USA-54) . See also OIE Disease Information, Vol. 19, No. 6, 
p. 96. 
428 APHIS' letter of 4 August 2005, (Exhibit USA-93). 
429 APHIS' facsimile of 29 April 2003, (Exhibit USA-80); SENASA's letter of 5 December 2005, 
(Exhibit ARG-96); SENASA's letter of 26 July 2006, (Exhibit ARG-97). 
430 See APHIS' letter of 3 October 2003, (Exhibit US A-84); Information on Northern Argentina provided 
by SENASA (November 2004) , (Exhibit ARG-86). 
431 SENASA's letter of 19 July 2010, No te No. 150/2010, (E xhibit ARG-46). 
432 APHIS' letter of 24 September 2010, (Exhibit ARG-47). 
433 APHIS' letter of 24 September 2010, (Exhibit ARG-47). 
434 G/SPS/R/63, (Exhibit ARG-22), paras. 17-18. See also G/SPS/R/64, (Exhibit ARG-48), paras. 96-97. 
435 APHIS' letter of 13 March 2013, (Exhibit USA-96). WT/DS447/R 
 
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  site visit should take place in November 2013.436 APHIS conducted the site visit as scheduled. On 
29 August 2014, a few days before the second substantive meeting with the parties in these dispute settlement proceedings, APHIS published a risk analysis for Northern Argentina and a Proposed Rule to allow imports of fresh (chilled or frozen) beef from the region under protocols 
similar to those applied to fresh (c hilled or frozen) beef from Uruguay.
437  
7.127.  Based on the above, we consider that, during the course of APHIS' review of Argentina's 
request for authorization of imports of fresh (chilled  or frozen) beef from Northern Argentina, there 
were two periods of inaction which constitute delays within the meaning of Annex C(1)(a):  
a. one from October 2003 until November 2004; and  
b. the other from September 2006 until March 2013. However, as indicated in 
paragraph 7.118 above, the Panel will not consider the period after the date of 
establishment of the Panel in January 2013. T hus, for the purposes of this dispute, the 
second delay is from September 2006 until January 2013.  
7.128.  We shall now assess whether such delays are undue within the meaning of Annex C(1)(a). 
7.3.3.5.3.2  Whether the delays are undue 
7.129.  We recall that a delay is undue if it is "unwarranted, or otherwise excessive, 
disproportionate or unjustifiable".438  
7.130.  As noted in paragraphs 7.123-7.124 above, the delay from October 2003 to 
November 2004 was attributable to SENASA not providing APHIS with the additional information requested. APHIS had made such a request in connection with the FMD outbreak in the province of Salta in late August 2003 aimed at checking that the situation in the area had stabilized, that the 
disease had not spread, and that the outbreak  was adequately controlled or eliminated.
439 Given 
that the information requested from SENASA in this instance was reasonable under the circumstances, this delay cannot be attributed to the United States.
440  
7.131.  Therefore, we are left to assess whether the delay in APHIS' review process 
between September 2006 and January 2013 is undue.  Argentina relies on the statements from 
APHIS in its letters and of the United States' representative to the SPS Committee as evidence 
that there was no justifiable reason for the dela y. The United States, for its part, argues that 
Argentina misconstrues the statements and it offers  several justifications to explain the delay.  
7.132.  Specifically, the United States points to the outbreaks in Argentina in 2003 and 2006, the 
labour strike at SENASA in 2005, SENASA's alleged "history of intentional concealment" of 
outbreaks, and the need for additional information that was not received until the November 2013 
site visits. Argentina strongly disputes the United States' statements regarding the alleged history of intentional concealment and asserts that they are belied by the facts on record and APHIS' own 
conclusions.
441 
7.133.  With respect to the United States' argument that the 2003 and 2006 FMD outbreaks in 
Northern Argentina and the 2005 labour strike at SENASA raised concerns ab out Argentina's ability 
to prevent and control FMD442, we are persuaded that such occurrences reasonably justified APHIS' 
                                               
436 SENASA's letter of 13 July 2013, (E xhibit ARG-99); APHIS' letter of  15 July 2013, (Exhibit USA-97). 
437 2014 Risk Analysis for Northern Argentina, (E xhibit USA-169); 2014 Proposed Rule on Northern 
Argentina, (Exhibit USA-168). 
438 Appellate Body Report, Australia – Apples , para. 437 (referring to Panel Report, EC – Approval and 
Marketing of Biotech Products , para. 7.1495).  
439 See APHIS' letter of 3 October 2003, (Exhibit USA-84). 
440 See Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1498 (where the panel 
stated that if a request for informatio n is not justified by the importing Me mber's need to check and ensure the 
fulfilment of an SPS measure, that request may cause an  undue delay within the meaning of Annex C(1)(a)).  
441 Argentina's opening statement at the first meeting of the Panel, para. 3. 
442 United States' first written submission, paras. 204, 238; United States' opening statement at the first 
meeting of the Panel, para. 57; United States' response to Panel question No. 62 following the first substantive 
meeting.  WT/DS447/R  
 
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  requests for additional information and the need for APHIS to conduct two separate site visits to 
Northern Argentina in 2005 and 2006.443 We understand that, from an epidemiological perspective, 
after a region has experienced an FMD outbreak, time is required before the importing Member 
can reliably commence an evaluation of whether the region is free of FMD. According to 
Article 8.5.9(c) of the Terrestrial Code, such wait ing period is six months from the last outbreak 
where the authorities of the region affected adop ted a stamping-out policy, emergency vaccination 
and serological surveillance.444  
7.134.  APHIS itself recognized a general range of time from the last outbreak to when an 
evaluation is possible when it stated that it "[did] not consider a 3 to 5 year disease-free waiting period to be either necessary or required by international requirements or standards".
445 
Furthermore, APHIS noted in a policy document dating October 1997 that, in order to determine 
the level of risk presented by products originating from a given region, it takes into account a 
number of factors, including whether "[t]he restricted agent has not been diagnosed within the region for a period of time appropriate for that agent".
446 The length of that period of time varies 
according to the disease and the level of risk. In order to attribute a "negligible", "slight" or "low" 
level of risk to a region, the period of time for FMD is "1 year".447 We recognize that the policy 
document is from 1997 and that there have been advances in diagnostic and serological 
surveillance that have led the OIE to conclude a six-month waiting period between outbreak and 
consideration for re-gaining "free" status is suff icient. However, we note that the document in 
question still constitutes the basis on which APHIS operates in evaluating the FMD conditions of applicant countries or regions. Furthermore,  a s  w i l l  b e  s e e n  i n  m o r e  d e t a i l  b e l o w
448, the 
United States' claims that its ALOP for FMD is high er than that of the OIE. Therefore, we take the 
view that while a Member could begin a review within six months of an outbreak, APHIS' 1997 policy provides useful guidance as to the maximum  reasonable time for the United States to wait 
after an outbreak before commencing its review of whether the FMD situation in a country or 
region has changed. 
7.135.  Read together, the above indicators suggest that APHIS should have been able to 
commence its assessment of the FMD situation in Northern Argentina after waiting a period 
ranging from six months to one year following the 2006 outbreak, that is, by February 2007 at the latest. We observe that APHIS did not make an y requests for information from SENASA after 
the September 2006 outbreak and the process di d not move forward. Therefore, we are not 
convinced that the above factors justify APHIS' inaction after February 2007. 
7.136.  As to the United States' argument that SENASA's "history of intentional concealment and 
delayed reporting of outbreaks" justifies the 2007-2013 delay
449, we note that despite the 
United States' view that Argentina intentionally concealed the full extent of its FMD outbreaks in 
2000-2002450, the United States could not identify any subsequent instances in which SENASA 
failed to promptly notify the OIE and APHIS about FMD outbreaks in Argentina.451 Based on the 
evidence on record, we find that since Argentin a filed its request in November 2002, SENASA has 
been diligent and timely in disclosing the presence of FMD outbreaks in its territory.452 APHIS itself 
recognized SENASA's diligence when, in 2005, it ex pressed "confidence" that "delayed reporting" 
                                               
443 See para. 7.123 above. 
444 We note that Argentina's actions in response to the 2006 outbreak follow the recommendations of 
Article 8.5.9 of the Terrestrial Code. See Resolución  SENASA 35/2006, (Exhibit ARG-5); Resolución SENASA 
36/2006 (Exhibit ARG-6); SENASA's letter of 26 July 2006, (Exhibit ARG-97); 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), p. 24. 
445 Importation of Beef from Uruguay , 68 Fed. Reg. 31940 (USDA/APHIS May 29, 2003) (Final Rule), 
(2003 Final Rule on beef from Uruguay), (Exhibit ARG-8), p. 31946. 
446 APHIS Policy Regarding Importatio n of Animals and Animal Products , 62 Fed. Reg. 56027 
(USDA/APHIS, 28 October 1997) (Notice), (1997 APHIS Policy), (Exhibit ARG-63), p. 56029. 
447 1997 APHIS Policy, (Exhibit ARG-63), pp. 56029-56030. While the waiting period is the same for all 
three levels of risk, other factors, such as vaccination, movement and border controls, etc., justify APHIS' 
distinction between regions.  
448 See section 7.6.2 below. 
449 United States' response to Panel question No. 31 following the second substantive meeting. 
450 United States' first written submission, para. 204. 
451 See United States' response to Panel question No. 31 following the second substantive meeting. 
452 SENASA's letter of 29 August 2003,  (Exhibit USA-83); Argentina's facsimile of 5 September 2003, 
(Exhibit USA-51); OIE, Final Report, 74th General Session (2006), (Exhibit USA-55), pp. 45, 144. WT/DS447/R 
 
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  like that in 2001 would not happen again.453 Therefore, we do not consider that the United States 
can validly invoke SENASA's shortcomings – which the United States itself concluded were remedied prior to February 2007 – as a justification for APHIS' inaction after that date.  
7.137.  We next address Argentina's claim that Section 737 of the 2009 Omnibus Appropriations 
Act is a non-scientific and undue reason for the delay in the process.
454 In support of its argument, 
Argentina draws a parallel between Section 737 and the measure found to be inconsistent by the panel in US – Poultry (China), which prohibited the Secretary of  Agriculture from spending any 
budgetary resources towards the approval of Chinese poultry for import into the United States. 
The United States first argues that because Section 737 expired prior to the establishment of the Panel, it is outside the Panel's terms of reference. Substantively, the United States responds that Section 737 did not affect the Secretary of Agriculture's authority to review Argentina's 
requests.
455  
7.138.  We note that the panel in EC – Approval and Marketing of Biotech Products  took into 
account approval procedures relating to requests  that had been withdrawn at the time of its 
establishment, on the grounds that such procedures "constitute[d] factual evidence" which the 
panel was "not only entitled to take into account", but indeed "required to take into account in view of its obligation to make an objective assessment of the facts of the case".
456 In our view, 
this is the correct approach. Regardless of whether Section 737 is considered a "measure at issue" 
in that the Panel could make specific findings or recommendations on its consistency with Article 8 and Annex C – a matter we turn to below – it can serve as factual evidence as to whether the delay in the processing of Argentina's application was undue. Therefore, we find it useful to 
examine whether Section 737 had the impact Argentina alleges before turning to address the 
United States' arguments that the measure cannot be a measure at issue within the Panel's terms of reference. 
7.139.  Argentina claims that Section 737 is directly analogous to the legislative measure 
considered by the panel in US – Poultry (China). We do not agree with Argentina. Section 737 did 
not have the effect of completely blocking all progress on Argentina's application, as was the case 
for the measure at issue in US – Poultry (China) . Rather, Section 737 appears to permit the 
Secretary of Agriculture to move forward with a review of the "domestic animal health aspects" of Argentina's requests and to provide "a report on the findings to the Committees on Appropriations of the House and Senate".
457 A review of the impact of a potential entry or spread of FMD on 
domestic animal health is consistent with the requirements for a risk assessment set forth in the 
SPS Agreement. Indeed, the risk being protected against is a risk to the health of domestic 
animals. In particular, Annex A(4) refers to evaluating the "potential biological and economic 
consequences" of the entry, establishment or spread of a pest or disease, whereas Article 5.3 lists 
"the potential damage in terms of loss of prod uction or sales in the event of the entry, 
establishment or spread of a pest or disease" and "the costs of control or eradication in the 
territory of the importing Member" as factors that must be taken into account in assessing the risk 
to animal health. Therefore, given that Section 737 appeared to permit the conduct of such an 
analysis, the effect of the provision does not appear, in and of itself, to amount to an undue delay in an approval process. Furthermore, the United States argued that the failure of the Secretary of 
Agriculture to produce such a report was not due to any hindrance of authority brought about by 
Section 737;  according to the United States,  the report was not produced because the Secretary's 
review of Argentina's requests had not yet been finalized.
458  
7.140.  Based on the evidence before us, we are not convinced that completion of the evaluation 
required in Section 737 caused undue delay in the APHIS approval procedures. Having reached 
                                               
453 USDA, Veterinary Services, Nati onal Center for Import and Expo rt 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), (2005 Risk Analysis for Patagonia South), (Exhibit ARG-9), 
p. 23. 
454 Argentina's first written submission, para. 701; Argentina's opening statement at the first meeting of 
the Panel, para. 18; Argentina's second written submission, paras. 385-389. 
455 United States' first written submission, paras. 146, 223.  
456 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.548. 
457 2009 Omnibus Appropriations Act , (Exhibit ARG-45/USA-95). 
458 United States' response to Panel question No. 7 following the first substantive meeting. WT/DS447/R  
 
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  this conclusion, we need not determine whether Section 737, considered as a measure rather than 
relevant evidence, is within our terms of reference.459  
7.141.  We now turn to the United States' argument that APHIS did not have all the information 
necessary to complete its risk assessment for Northern Argentina until the site visit of November 
2013.460 This argument also raises the issue of the we ight to be placed on the statements in the 
letter from APHIS and those made to the SPS Co mmittee of the WTO. APHIS' letter to SENASA 
of September 2010461 and the United States' representative's statements before the 
SPS Committee in June and October 2011462 suggest that APHIS had enough information to 
progress with its risk assessment at the time those statements were made. Indeed, APHIS stated that it was "currently drafting a proposed rule that would allow the importation of fresh, chilled, or frozen Argentine beef under certain conditions"
463, while the United States' representative at the 
SPS Committee stated that APHIS had "completed th e risk analysis regarding the region north of 
the 42nd parallel and would subsequently draft a pr oposal to allow the importation of beef under 
certain conditions".464  
7.142.  The United States asserts that the above-mentioned statements should not be understood 
to suggest that APHIS was ready to finalize the process in 2010-2011.465 Accepting for the 
moment the United States' interpretation of such  statements, this does not deprive them of all 
value for our purposes. It seems to us that even if the statements in question should not be 
construed to imply that the risk analysis was complete, they may nevertheless serve as an indication that there was no reason for the continue d delay in the finalization of the procedure. The 
record shows that APHIS did not request SENASA to  provide any additional information concerning 
the FMD situation in Northern Argentina following its site visit of September 2006 
until March 2013. Moreover, the United States has not pointed to any specific information that APHIS was missing prior to the November 2013 visit, except for the need to "re-confirm and 
update" information already in its possession as the result of prior site visits.
466 Read together, 
these facts indicate to us that APHIS had collected sufficient information concerning the FMD situation in Northern Argentina well before the November 2013 site visit took place. If that 
were not the case, one would expect APHIS to have communicated to SENASA to request any 
missing information in order to progress towards the completion of the process. It did not do so.  
7.143.  Moreover, we disagree with the United St ates that the need to "re-confirm and update" 
pre-existing information constitutes, in and of itself, a justification for the delay in the completion 
of a control, inspection or approval procedure. We note that the panel in EC – Approval and 
Marketing of Biotech Products  found that when " new or additional " relevant information becomes 
available, a Member may reasonably "delay the completion of the procedure" in order to assess 
it.
467 However, taking time to assess relevant new or additional information is not the same as 
taking time to re-confirm and update information already received. It is inevitable that the situation in any Member or region will change and cannot remain static; the longer the evaluation 
process takes, the more likely the need to "re-co nfirm and update" the submitted information. In 
                                               
459 As we see it, this approach is consiste nt with that of the Appellate Body in US – Shrimp (Thailand) / 
US – Customs Bond Directive . In that dispute, the Appellate Body co nducted an analysis of whether a measure 
at issue was justified under Article XX(d) of the GATT 1994 on an arguendo  basis, i.e. assuming that the 
general exceptions under Article XX were available to th e defendant to vis-à-vis claim under Article 18.1 of the 
Anti-Dumping Agreement. (See Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive , 
para. 310) Having found that the measure was not justified under Article XX(d), the Appellate Body did not find it necessary to express a view on the question of whether a defence under Article XX was available to the defendant. (See Ibid. para. 319) 
460 United States' response to Panel question No. 29 following the second substantive meeting. 
461 APHIS' letter of 24 September 2010, (Exhibit ARG-47). 
462 G/SPS/R/63, (Exhibit ARG-22), paras. 17-18. See also G/SPS/R/64, (Exhibit ARG-48), paras. 96-97. 
463 APHIS' letter of 24 September 2010, (Exhibit ARG-47). 
464 G/SPS/R/63, (Exhibit ARG-22), paras. 17-18. See also G/SPS/R/64, (Exhibit ARG-48), paras. 96-97. 
465 See e.g. United States' response to Panel question No. 32 following the first substantive meeting. 
466 United States' response to Panel question No. 29 following the second substantive meeting. See also 
United States' response to Panel question No. 30 following the second substantive meeting. This is confirmed in the 2014 risk assessment for Northern Argentina that  the United States placed on the record on 
1 September 2014. A review of the document shows that the information APHIS collected during the 
November 2013 site visit was aimed at updating pre-existing information. (See e.g. 2014 Risk Analysis for Northern Argentina, (Exhibit USA-169), pp. 10, 30-33, 55, 74-75) 
467 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1498 (emphasis added). WT/DS447/R 
 
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  our view, to accept the United States' argument as justifying the delay in this case would seriously 
undermine the obligations in Annex C(1)(a), for if a WTO Member could indefinitely postpone the completion of a procedure by invoking the need to reconfirm information that had become outdated by virtue of its own inaction, this would create a dangerous loophole in the disciplines of 
that provision and would reward behaviour opposite to the diligence called for by Annex C(1). 
7.144.  Finally, we address the United States' argument that, by postponing APHIS' latest site visit 
to Northern Argentina until November 201 3, SENASA contributed to APHIS' delay.
468 We note that 
Argentina is not seeking to support its claim of  undue delay with the period between March and 
November 2013, but rather only up to the date of the establishment of the Panel (28 January 2013). Therefore, whether any delay in that period is attributable to either the United States or Argentina is immaterial to the task before us.  
7.145.  Based on the foregoing, we conclude that the United States did not undertake and 
complete the procedure to review Argentina's request for imports of fresh (chilled or frozen) beef from Northern Argentina without undue delay and has therefore acted in a manner inconsistent 
with Article 8 and Annex C(1)(a) of the SPS Agreement with respect to that request.
  
7.3.3.5.4  APHIS' review process of Argentin a's request for the recognition of Patagonia 
as FMD-free 
7.146.  As with our findings in the previous section, we shall assess, first, whether APHIS' review 
process of Argentina's request for the recognition of Patagonia as FMD-free incurred a delay. If so, we shall turn to determining whether such a dela y was undue. For ease of reference, we include 
the events relevant to APHIS' review and the Panel proceedings in Table 2 below. We also refer to 
the chronology contained in Appendix 1 to this Report for further information. 
Table 2: Chronology of events relating to APHIS' review of Argentina's request for the 
recognition of Patagonia as FMD-free 
No. Event Date Interval 
(approx.) 
1.  SENASA submitted a formal re quest to APHIS requesting the 
recognition of Patagonia as a region free of FMD.469  28 Aug. 2003 - 
2.  APHIS contacted SENASA regard ing a 1 December 2003 site 
visit to Patagonia.470 APHIS also requested additional 
information from SENASA regard ing the request for regional 
recognition of Patagonia as FMD-free.471 6 Nov. 2003 2 months 
3.  APHIS, together with the Canadian Food Inspection Agency, 
conducted a site visit to Patagonia South and the Patagonia buffer zone consisting of Patagonia North A and B to continue 
its assessment of the status of FMD in the area.
472  1-5 Dec. 2003 1 month 
4.  In a follow-up letter sent to SE NASA after APHIS' site visit to 
Patagonia of 1-5 December 2003, APHIS informed SENASA 
that it would need to provide additional information to allow 
APHIS to proceed with the risk assessment.473  2 Mar. 2004 3 months 
                                               
468 United States' first written submission, para. 200. 
469 Information Provided by SEN ASA (July 2003), (Exhibit USA-98). 
470 Facsimile from Theresa Boyle (United States Depart ment of Agriculture, An imal and Plant Health 
Inspection Service, USDA, APHIS, Area Director ) to Dr. Jorge N. Amaya (SENASA, President) 
(6 November 2003), (APHIS' facsimile of 6 November 2003), (Exhibit USA-99). 
471 United States first written submission, para. 151 (referring to Letter from W. Ron DeHaven 
(United States Department of Agricu lture, Animal and Plant Health Insp ection Service, USDA, APHIS) to 
Dr. Jorge N. Amaya (SENASA, President) (6 November 2003), (APHIS' letter of 6 November 2003), (Exhibit USA-100)). 
472 Letter from W. Ron DeHaven (United States Depart ment of Agriculture, An imal and Plant Health 
Inspection Service, USDA, APHIS) to Dr. Jorge Amaya (SENASA, President) (2 March 2004), (APHIS' letter of 2 March 2004), (Exhibit USA-102). 
473 APHIS' letter of 2 March 2004 (Exhibit USA-102). WT/DS447/R  
 
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  No. Event Date Interval 
(approx.) 
5.  SENASA responded to the 2 March 2004 letter, providing 
additional information concerning Patagonia in response to APHIS' request.
474  16 Nov. 2004 8 months 
6.  APHIS concluded and produced th e risk analysis evaluating 
Patagonia South as a region free of FMD.475  Jun. 2005 7 months 
7.  APHIS published a proposed rule  in the Federal Register to 
change the disease status of Patagonia South to FMD-free.476 
During the ensuing 60-day period, APHIS received comments on the proposed rule fro m interested parties.  5 Jan. 2007 1.5 years 
8.  The United States Cattlemen's Association, the National 
Farmers Union, and American Agri-Women sent a letter to the 
House Committee on Agriculture with regard to the 2007 
proposed rule for Patagonia Sout h, in which they called for 
further discussion on the matt er before APHIS finalize the 
process.477 22 Jan. 2008 1 year 
9.  The Embassy of Argentina in Washington sent a letter to US 
Senator Jon Tester expressing the view that the Proposed Rule recognizing Patagonia South as FM D-free should be finalized so 
that commercial relations between the region of Argentina and the United States could be normalized.
478 7 Mar. 2008 1.5 months 
10.SENASA introduced Resolution 148/2008 to authorize 
transport of FMD-susceptible animals into Patagonia South 
from Patagonia North B under additional traceability 
requirements, in connection with EU regulations recognizing 
Patagonia South, but not yet Patagonia North B, as FMD-free 
where vaccination is not practised.479  11 Mar. 2008 4 days 
11. Several US senators urged the Administration not to adopt the 
final rule for the recognition of Patagonia South as FMD-free 
until the rule has been reviewed by the Office of Management 
and Budget.480 14 Mar. 2008 3 days 
12.The Embassy of Argentina in Washington sent a letter to US 
Senator Max Baucus (insert what committee he chaired at 
time) expressing the view that the Proposed Rule recognizing 
Patagonia South as FMD-free should be finalized so that 
commercial relations between the region of Argentina and the 
United States could be normalized.481 20 Mar. 2008 6 days 
                                               
474 Further Information Requested by the United Stat es Department of Agricu lture, Animal and Plant 
Health Inspection Service (USDA, APHIS) of the Inform ation Provided by SENASA to Attain Recognition of 
Patagonia as a Region, as Defined in Section 92.2, Titl e 9 of the Code of Federal Regulations for Foot and 
Mouth Disease (FMD) (November 2004), (Information on Patagonia Provided by SENASA (November 2004)), (Exhibit USA-103). 
475 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 32.   
476 Change in Disease Status of the Patagonia South Re gion of Argentina With Regard to Rinderpest and 
Food- and-Mouth Disease, 72 Fed. Reg. 475 (5 January 2007) (Proposed Rule), (2007 Proposed Rule on 
Patagonia South), (Exhibit ARG-56/USA-104). 
477 Letter dated 22 January 2008 from various legislators of the Agriculture Commission of the House of 
Representatives, requesting a hearin g 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), (Exhibit ARG-39). 
478 Letter from Minister José Pérez Gabilondo to Sena tor Tester in response to his concern over the 
access of beef from Argentina (7 March 2008), (Exhibit ARG-41). 
479 Resolución SENASA 148/2008, (Exhibit USA-62). 
480 Letter from Senator Baucus et al. to Edward Scha fer, Secretary, US Depart ment of Agriculture and 
Jim Nussle, Director, Office of Mana gement and Budget regarding propos ed USDA rule on Patagonia South 
(14 March 2008), (Exhibit ARG-40). 
481 Letter from Ambassador Héctor Timerman to Sena tor Baucus in response to his 14 March 2008 letter 
(20 March 2008), (Exhibit ARG-42). WT/DS447/R 
 
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  No. Event Date Interval 
(approx.) 
13. APHIS contacted SENASA with a view to fixing the agenda for 
a site visit by APHIS, aimed at updating the assessment of the 
risk for Patagonia South in or der to respond to the comments 
received in connection with the 2007 Proposed Rule for Patagonia South.
482 15 Oct. 2008 7 months 
14.SENASA sent a letter to APHIS expressing displeasure with the 
duration of FMD assessment proc ess and noting that, because 
the situation in Patagonia South had not changed, SENASA did 
not consider that there were sufficient grounds to accept 
APHIS' proposed visit schedule for 15-18 December 2008.483 22 Oct. 2008 7 days 
15. SENASA sent a new letter to APHIS reiterating its statements 
of 22 October 2008.484  11 Nov. 2008 20 days 
16.SENASA introduced Resolution 1282/2008 as a consequence of 
the EU's recognition of Patagonia North B as FMD-free where 
vaccination is not practised. The resolution allowed the 
movement of FMD-susceptible animals from Patagonia North B 
into Patagonia South for any purpose, subject to strengthened 
measures on transport and traceability. The Resolution did not 
modify the pre-existing re quirements for entry of 
FMD-susceptible animals into the Patagonia region as a whole 
from FMD-free zones with vaccination.485  16 Dec. 2008 2 months 
17. SENASA also granted approval for APHIS to visit Patagonia 
South in February 2009.486 In granting the site visit request, 
SENASA also requested that APHIS extend the mission to cover Patagonia North B because the zone was recognized by 
the OIE as a region free of FMD where vaccination is not practiced.
487 For this purpose, SENASA updated the 
information concerning Patagonia with APHIS, including the data on Patagonia North B that had led to the international recognition of the zone as FMD-free where vaccination is not practised.
488  17 Dec. 2008 1 day 
18.APHIS conducted a site visit to Patagonia, including Patagonia 
South and Patagonia North B.489  23-26 Feb. 2009 2 months 
19. The US Congress passed the 2009 Omnibus Appropriations 
Act.490  26 Feb. 2009 0 days 
20.APHIS sent SENASA a letter stating that no additional 
information was currently required to proceed with APHIS' 
rule-making.491 27 Apr. 2009 2 months 
21. The 2009 Omnibus Appropriations Act  expired. 30 Sep. 2009 5 months 
                                               
482 Letter from Yvette Perez (Unite d States Department of Agricult ure, Animal and Plant Health 
Inspection Service, USDA, APHIS) to Oscar Astibia (SENASA) (15 October 2008), (APHIS' letter of 15 October 2008), (Exhibit USA-106). 
483 Facsimile from Oscar Astibia (SENASA) to Yvette Perez (USDA, APHIS) (22 October 2008), 
(SENASA's facsimile of 22 Octo ber 2008), (Exhibit USA-107). 
484 Facsimile from Oscar Astibia, SENASA, to Yvette Perez, USDA, APHIS (11 November 2008), 
(SENASA's facsimile of 11 November 2008), (Exhibit USA-108).  
485 Resolución SENASA 1282/2008, (Exhibit USA-109). 
486 SENASA's letter of 17 December  2008, (Exhibit ARG-59/USA-111). 
487 SENASA's letter of 17 December 2008, (Exh ibit ARG-59/USA-111); SENASA's letter of 
30 January 2009, (Exhibit ARG-60/USA-112). 
488 SENASA's letter of 17 December  2008, (Exhibit ARG-59/USA-111). 
489 SENASA's letter of 30 January 2009, (Exhibit ARG-60/USA-112).  
490 H.R. Res. 1226, 111th Cong. (2009); S. Res. 337, 111th Cong (2009), (Exhibit ARG-44).  
491 Letter from John R. Clifford, Deputy Administrator,  Veterinary Services, APHIS to Jorge N. Amaya, 
President, SENASA (27 April 2009), (APHIS' le tter of 27 April 2009) , (Exhibit ARG-79). WT/DS447/R  
 
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  No. Event Date Interval 
(approx.) 
22.SENASA sent APHIS a letter detailing the information 
exchange with regard to the recognition of Patagonia as 
FMD-free, highlighting its concerns over the fact that all the 
technical stages had been concluded on a scientific basis, and 
stating that there only remained to be completed the 
administrative procedures to  secure the recognition of 
Patagonia.492 19 Jul. 2010 10 months 
23. APHIS responded to SENASA's 19 July 2010 letter with respect 
to Argentina's application for th e recognition of Patagonia as 
FMD-free, stating that APHIS "h ad made significant progress 
towards recognizing the FMD- free status of southern 
Patagonia". APHIS further noted that because it needs to be thorough and transparent in its deliberations, the rule-making process could take time.
493 13 Sep. 2010 2 months 
24.Argentina presented a specific trade concern (STC) in the 
SPS Committee, expressing its concern that the United States 
failed to recognize Patagonia South as a FMD-free, despite the 
OIE recognition of Patagonia South as FMD-free where 
vaccination is not practised since 2002. 
 
The United States replied that APHIS "had made significant 
progress in recognizing the FMD- free status of South Patagonia 
and that, in light of the information Argentina provided in 
2009, which was used to update the 2005 risk analysis, it was 
able to conclude that the impo rt of ruminants and ruminant 
products from this region pres ented a negligible risk of 
FMD".494 30 Jun. 2011 2 years 
25. Argentina raised the same STC at the 52nd Meeting of the 
SPS Committee. The United States reiterated that APHIS "had made significant progress in recognizing the FMD free status of South 
Patagonia".
495 19 Oct. 2011 3.5 months 
26.Argentina requested consultations with the United States at 
the WTO.496 30 Aug. 2012 10 months 
27. The United States and Argentina met in Washington DC in the 
framework of the Consultations being held pursuant to Article 4 of the DSU.  28 Nov. 2012 3 months 
28.Argentina requested the establishment of a panel.497 6 Dec. 2012 8 days 
29. The DSB established the Panel with standard terms of 
reference.498 28 Jan. 2013 2 months 
30.APHIS wrote to SENASA summarizi ng the issues discussed in 
the Consultations on 28 November 2012 between Argentina 
and United States officials, including APHIS's desire to conduct 
a new site visit to Northern Argentina and Patagonia. APHIS 
formally requested permission  from SENASA to conduct the 
site visit in order to progress with the review of Argentina's 
request.499 13 Mar. 2013 1.5 months 
                                               
492 Letter from Jorge N. Amaya, President, SENASA to John R. Clifford, Deputy Ad ministrator, Veterinary 
Services, APHIS, Note No. 149/2010 (19 July 2010), (SENASA's letter of  19 July 2010, Note No. 149/2010), 
(Exhibit ARG-61/USA-56). 
493 Letter from John R. Clifford, Depu ty Administrator, APHIS, to Jo rge N. Amaya, President, SENASA 
(13 September 2010), (APHIS' letter of 13 September 2010), (Exhibit ARG-62). APHIS' letter refers to "southern Patagonia". We note, however, that by this time Argentina's request covered both Patagonia South 
and Patagonia North B. 
494 G/SPS/R/63, (Exhibit ARG-22), paras. 17-18.  
495 G/SPS/R/64, (Exhibit ARG-48), paras. 96-97. 
496 Argentina's request for consultations, WT/DS447/1. 
497 Argentina's request for the establishment of a panel, WT/DS447/2. 
498 Argentina's first written submission, para. 21. 
499 APHIS' letter of 13 March 2013, (Exhibit USA-96). WT/DS447/R 
 
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  No. Event Date Interval 
(approx.) 
31. SENASA agreed to the visit proposed by APHIS on 
13 March 2013, but stated that the sanitary situation in Argentina had not changed.
500 3 Jul. 2013 3.5 months 
32.APHIS replied to SENASA's 3 July 2013 letter stating that it 
was ready to schedule the agreed visit to Argentina as soon as 
possible. APHIS also stated its understanding that Argentina 
preferred that the site visit occur during the last week 
of October or the first week of November 2013.501  15 Jul. 2013 10 days 
33. The Panel was composed by the Director-General. 8 Aug. 2013 3 weeks 
34.APHIS visited Patagonia to conduct the site review with regard 
to the recognition of the region as FMD-free.502 1st week of 
Nov. 2013 4 months 
35. APHIS published a Proposed Rule for recognition of the 
Patagonia region (comprising both Patagonia South and Patagonia North B) as FMD-free, pursuant to an updated risk 
assessment completed in January 2014.
503 23 January 2014 2 months 
36.The Panel held the first substantive meeting with the parties. 28-29 Jan. 2014 5 days 
37. APHIS published a Final Ru le recognizing Patagonia 
(comprising both Patagonia South and Patagonia North B) as FMD-free within the meaning of 9 CFR 94.1(a)
504, entering into 
force as from 28 October 2014. 29 Aug. 2014 7 months 
38.The Panel held the meeting with the parties and the experts on 
2 September 2014 and the second substantive meeting with 
the parties on 4-5 September 2014. 1st week of 
Sep. 2014 3 days 
39. APHIS' Final Rule recognizing Patagonia as FMD-free within the 
meaning of 9 CFR 94.1(a)  entered into force. 28 Oct. 2014 2 months 
 
7.3.3.5.4.1  Whether the procedure incurred delays 
7.147.  Consistent with our approach in paragraph 7.121 above, we begin our assessment of 
Argentina's claim under Article 8 and Annex C(1 )(a) with a determination of whether APHIS' 
review of Argentina's request for the recognition of Patagonia as FMD-free incurred delays. We 
recall that a delay is a period of time lost by inaction or inability to proceed on the part of the authority carrying out the procedure.
505 
7.148.  At the outset, we note that Argentina's request for the recognition of Patagonia as 
FMD-free was filed in two distinct steps. In August 2003, Argentina filed a request for recognition 
limited to Patagonia South (the area of Patagonia located south of the 42nd parallel).506 In 
December 2008, Argentina extended the scope of it s original request to encompass the recognition 
of Patagonia North B (the area of Patagoni a between the 42nd parallel and the Rio Negro).507 As 
discussed in further detail below, the two-step nature of Argentina's request is relevant in assessing whether and to what extent APHIS'  review thereof incurred an undue delay. 
                                               
500 SENASA's letter of 13 July  2013, (Exhibit ARG-99). 
501 APHIS' letter of 15 July 2013, (Exhibit USA-97). 
502 United States' first written submission, para. 162. 
503 Notice of Availability of Evaluations of the Foot-a nd-Mouth Disease and Rinderpest Status of a Region 
of Patagonia, Argentina , 79 Fed. Reg. 3775 (23 January 2014) (Notice of availability), (2014 Notice of 
Availability of Risk Analysis for Patagonia), (Exhibit USA-132); 2014 Risk Analysis for Patagonia, (Exhibit USA-133). 
504 Notice of Determination of the Foot-and-Mouth Disease and Rinderpest St atus of a Region of 
Patagonia, Argentina , 79 Fed. Reg. 51528 (29 August 2914) (Notice), (2014 Notice of Determination on 
Patagonia), (Exhibit USA-167). 
505 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1495. See also Appellate 
Body Report, Australia – Apples , para. 437. 
506 Information Provided by SEN ASA (July 2003), (Exhibit USA-98). 
507 SENASA's letter of 17 December 2008, (Exh ibit ARG-59/USA-111); SENASA's letter of 
30 January 2009, (Exhibit ARG-60/USA-112). WT/DS447/R  
 
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  7.149.  The United States asserts, and Argentina does not disagree, that APHIS began its review 
process promptly upon receiving Argentina's request for recognition of Patagonia South in August 2003.
508 Indeed, APHIS and SENASA had a meeting on Argentina's request two months 
after it was filed. At that meeting, APHIS requested additional information from SENASA 
concerning the FMD situation in Patagonia South and requested to make a visit to the region to be 
conducted in December of that year.509 
7.150.  Throughout the period August 2003-No vember 2004, exchanges took place between 
APHIS and SENASA. As agreed by the two agencies , APHIS conducted its site visit to Patagonia 
South and Patagonia North A and B together with the Canadian Food Inspection Agency in December 2003.
510 Three months later, in March 2004, APHIS requested that SENASA provide 
additional information in order to progress on the risk analysis for Patagonia South.511 SENASA 
took approximately eight months, i.e. until 16 November 2004, to provide the additional 
information APHIS requested.512 In June 2005, i.e. approximately six months after SENASA 
submitted the additional information, APHIS pu blished a risk analysis for Patagonia South, 
concluding that imports of FMD-susceptible an imals and animal products from the region 
presented a "low" risk of introduction of FMD into the United States.513  
7.151.  Argentina claims that the two-year period between the filing of its request and the 
publication of the risk analysis for Patagonia South (2003-2005) constitutes an undue delay on the 
part of the United States.514 However, the evidence on the reco rd demonstrates that throughout 
that period APHIS had requested additional inform ation from SENASA, analysed that information, 
and conducted a site visit to Patagonia. Based on the evidence, there was a period of inaction 
between March and November 2004 while APHIS was awaiting SENASA's response to APHIS' 
request for additional information.515 Therefore, we disagree with Argentina that the whole 
2003-2005 period constitutes a delay. In our view, the only delay in the procedure during the 
period 2003-2005 was the eight months between March and November 2004. 
7.152.  The evidence on the record does not show any further exchanges between APHIS and 
SENASA from the publication of the June 2005 risk analysis for Patagonia South and APHIS' 
publication in January 2007 of a Proposed Rule to change the disease status of Patagonia South to 
FMD-free and as a consequence to permit imports.516 In Argentina's view, this one-and-a-half-year 
period of inactivity on APHIS' part constitutes a further undue delay in the approval procedure.517 
The United States claims that this was not a period of inactivity or inability to proceed, but rather 
during this period APHIS was taking steps to comp ly with the procedural obligations established in 
the Regulatory Flexibility Act, Executive Order No. 12988, and the Paperwork Reduction Act.518 We 
do not discount that compliance with domestic legal obligations, such as the ones referenced by 
the United States, can be part of an ordinary or expected time-period to conduct an approval 
procedure. However, the United States did not submit the above-mentioned domestic legal instruments as evidence in these proceedings. Nor did the United States provide any evidence of 
specific actions APHIS took to comply with the aforementioned domestic legal obligations 
between June 2005 and January 2007. Therefore, in  the absence of such evidence we can only 
conclude that there was inaction on the part of APHIS from June 2005 to January 2007 and hence a delay in the approval procedure. 
7.153.  The January 2007 Proposed Rule for Patagonia South provided for a 60-day period 
(i.e. until 6 March 2007) for comments to be submitted by interested parties.
519 During that 
                                               
508 See United States' first written submission, para. 208; Argentina's response to Panel question No. 68 
following the first substantive meeting. 
509 APHIS' facsimile of 6 November 2003, (Exhibit USA-99); United States first written submission, 
para. 151 (referring to APHIS' letter of 6 November 2003, (Exhibit USA-100)). 
510 APHIS' letter of 2 March 2004, (Exhibit USA-102). 
511 APHIS' letter of 2 March 2004, (Exhibit USA-102). 
512 Information on Patagonia Provided by  SENASA (November 2004) , (Exhibit USA-103). 
513 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 76-77. 
514 Argentina's response to Panel question No . 68 following the first substantive meeting. 
515 Information on Patagonia Provided by  SENASA (November 2004) , (Exhibit USA-103). 
516 2007 Proposed Rule on Patagonia South, (Exhibit ARG-56/USA-104). 
517 Argentina's response to Panel question No . 68 following the first substantive meeting. 
518 United States' response to Panel question No. 61 following the first substantive meeting.  
519 2007 Proposed Rule on Patagonia South, (Exhibit ARG-56/USA-104). WT/DS447/R 
 
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  period, APHIS received a total of 45 comments from the United States and the Argentine industries 
as well as from private citizens. Some of the comments expressed concerns as to whether Argentina was able to prevent and control FMD in Patagonia South and, therefore, about the risks to United States' livestock from allowing the importation of FMD-susceptible animals and products 
thereof from the region.
520 APHIS never finalized the approval for Patagonia South. Rather, almost 
two years after the publication of the 2007 Proposed Rule, in October 2008 APHIS contacted SENASA requesting a new site visit to Patagonia South.
521 The United States argues that the need 
for a new site visit was in response to the comments received.522 
7.154.  In our view, it is reasonable to expect that APHIS would need time to address the 
comments expressed during the 60-day period following the publication of the January 2007 Proposed Rule. However, we are not persuaded that responding to such comments would require 
over one and a half years (i.e. from March 2007 to October 2008). We recall that APHIS' reviews 
are case-specific and that there is no one particular time-frame in which comments must be analysed and acted upon. The time necessary w ill depend on the amount and nature of the 
comments. However, we note that during the co urse of these proceedings, APHIS published a 
Notice of availability of the evaluations of the FMD status of Patagonia (comprising both Patagonia 
South and Patagonia North B) in late January 2014.
523 The period for interested parties to submit 
comments on that document expired on 24 March 2014.524 APHIS addressed the 33 comments 
received and issued a final Notice of determination on Patagonia on 29 August 2014, that is, five months after the expiration of the comment period.
525 Further, in its approval processes with 
respect to Uruguay, Santa Catarina and Japan, it took APHIS between four and 13 months to 
address comments on its proposed rule and issue a final determination.526 The finalization of the 
proposed rule for the United Kingdom took approximately 28 months.527 We recognize that we do 
not have the information on the specific circumstances that led to the varying times in the 
above-mentioned procedures. While not dispositive, they do indicate that, generally, a period of 
over one and a half years is neither ordinary nor expected.528 Moreover, the United States has not 
provided evidence as to what, if anything, APHIS was doing with respect to Argentina's application 
during this time-period. In light of the above, we conclude that there was a delay in the procedure 
between the end of the comment period (6 March 2007) until APHIS wrote to SENASA in October 2008.  
7.155.  In December 2008, two months after APHIS requested a new site visit to Patagonia South, 
SENASA granted approval for the visit.
529 At the same time, Argentina extended its request for 
recognition to Patagonia North B. In making its request, Argentina noted that the OIE had recognized Patagonia North B as FMD-free where vaccination is not practised.
530 APHIS conducted 
the site visit to Patagonia as a whole (comprising both Patagonia South and Patagonia North B) in 
February 2009.531 On 27 April 2009, APHIS sent a letter to SENASA stating that no additional 
information was "currently required to proceed with APHIS' rulemaking".532 The letter also 
                                               
520 See United States' response to Panel question No. 63 following the first substantive meeting, 
para. 263. 
521 APHIS' letter of 15 October 2008, (Exhibit USA-106). 
522 See United States' response to Panel question No. 33 following the second substantive meeting.  
523 2014 Notice of Availability of Risk Analysis for Patagonia, (Exhibit USA-132). 
524 2014 Notice of Availability of Risk Analysis for Patagonia, (Exhibit USA-132), p. 3775. 
525 2014 Notice of Determination on Patagonia, (Exhibit USA-167). 
526 See United States' response to Panel question No. 36 following the second substantive meeting.  
527 See United States' response to Panel question No. 36 following the second substantive meeting. 
528 We wish to stress that we are considering the time APHIS took between the publication of the 2014 
Notice of Availability and the publication of the 2014 No tice of Determination only as a benchmark for what 
constitutes the ordinary or expected  timeframe for APHIS to review comm ents on a proposed determination. 
This is necessary because, as observed in para. 7.114 above, APHIS does not have an express standard or 
average time-period required for the completion of the steps of its review processes. We are not addressing 
the substantive conclusions in either of the 2014 documents or using them to evaluate Argentina's claims with respect to the sanitary conditions in Patagonia prior to the establishment of the Panel.  
529 SENASA's letter of 17 December  2008, (Exhibit ARG-59/USA-111). 
530 SENASA's letter of 17 December 2008, (Exhibit AR G-59/USA-111) and Letter from Mr Oscar Astibia, 
Coordinator of International and Institutional Relations, SENASA, to Ms Yvette Pérez, USDA/APHIS, Buenos Aires, URI No. 460/09 (30 January 2009), (Exhibit ARG-60). 
531 SENASA's letter of 30 January 2009, (Exhibit ARG-60/USA-112). 
532 APHIS' letter of 27 April 2009, (Exhibit ARG-79). WT/DS447/R  
 
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  established contact points for further discussions "if necessary".533 However, APHIS did not make 
any requests for additional information of SENASA concerning the FMD situation in Patagonia for another three years.  
7.156.  After Argentina inquired into the status of the approval process in July 2010, APHIS sent 
SENASA a letter dated 13 September 2010 in which it stated that "APHIS had made significant 
progress towards recognizing the FMD-free status of southern Patagonia".
534 In June 2011, the 
United States' representative at the SPS Committee, responding to a specific trade concern (STC) 
raised by Argentina, stated that APHIS had "mad e significant progress in recognizing the FMD-free 
status of South Patagonia and that, in light of the information Argentina provided in 2009, which was used to update the 2005 risk analysis, it was able to conclude that the import of ruminants and ruminant products from this region presented a negligible risk of FMD".
535 The United States 
delegate reiterated this statement before the SPS Committee in October 2011.536 However, APHIS 
did not issue a determination concerning the recognition of Patagonia as FMD-free, nor did it request any further information of SENASA, until after the Panel's establishment in 
January 2013.
537 
7.157.  In March 2013, when the current proceedings were already under way, APHIS formally 
requested SENASA to accept a new site visit to Pata gonia in order to progress with the review of 
Argentina's request.538 SENASA agreed that the site visit should take place in November 2013.539 
APHIS conducted the site visit as scheduled. On 23 January 2014, a few days before the first substantive meeting of the Panel, APHIS published a risk analysis for Patagonia in a Notice of Availability that recognized the region as FMD-free.
540 On 29 August 2014, a few days before the 
second substantive meeting of the Panel, APHIS published a Notice of Determination recognizing 
Patagonia as FMD-free, which entered into force two months later.541 
7.158.  The facts described above indicate a period  of inaction on the part of APHIS between the 
site visit to Patagonia in February 2009 and its formal request to conduct a new site visit 
in March 2013. Therefore, based on the evidence on the record, we take the view that such a 
period constitutes a delay in the procedure. As mentioned in paragraph 7.118 above, we will not 
consider time-periods after the Panel's establishment. Therefore, for the purposes of Argentina's 
claim, the delay is from February 2009 until 28 January 2013. 
7.159.  In sum, the facts outlined above indicate that, during the course of APHIS' review of 
Argentina's request for the recognition of Patagonia as FMD-free, there were a number of periods 
of inactivity which constitute "delays" within the meaning of Annex C(1)(a). In particular, with 
respect to the APHIS process for Patagonia South: 
a. there was a delay of eight months between March and November 2004, during which 
APHIS was waiting for SENASA to submit additional information; 
b. there was a one-and-a-half-year delay between the issuance of APHIS' risk analysis for 
Patagonia South in June 2005 and the publication of the Proposed Rule in January 2007; 
c. there was a delay between March 2007 – the expiration of the comment period for the 
January 2007 Proposed Rule for Patagonia South – and October 2008, when APHIS requested a new site visit to the region. 
                                               
533 APHIS' letter of 27 April 2009, (Exhibit ARG-79). 
534 APHIS' letter of 13 September 2010, (Exhibit ARG-62) . APHIS' letter refers to "southern Patagonia". 
We note, however, that by this time Argentina's request covered both  Patagonia South and Patagonia North B. 
535 G/SPS/R/63, (Exhibit ARG-22), paras. 17-18.  
536 G/SPS/R/64, (Exhibit ARG-48), paras. 96-97. 
537 On 13 March 2013 APHIS sent a letter to SENASA indicating that during the Consultations conducted 
between the parties in November 2012, APHIS had proposed that a new site visit be scheduled. The letter served as a formal written request to schedule the prev iously discussed site visit. (See APHIS' letter of 
13 March 2013, (Exhibit USA-96)) 
538 APHIS' letter of 13 March 2013, (Exhibit USA-96). 
539 SENASA's letter of 13 July 2013, (E xhibit ARG-99); APHIS' letter of  15 July 2013, (Exhibit USA-97). 
540 2014 Notice of Availability of Risk Analysis for Patagonia, (Exhibit USA-132); 2014 Risk Analysis for 
Patagonia, (Exhibit USA-133). 
541 2014 Notice of Determination on Patagonia, (Exhibit USA-167). WT/DS447/R 
 
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  7.160.  With respect to APHIS' process for Patagonia as a whole (comprising both Patagonia South 
and Patagonia North B), there was a delay between February 2009, when APHIS conducted a site visit to the region, and January 2013, when the Panel was established. Thus, for the purpose of this dispute, the delay amounted to almost four years. 
7.161.  We now turn to assess whether the above-mentioned delays in APHIS' approval process 
are undue within the meaning of Annex C(1)(a).  
7.3.3.5.5  Whether the delays are undue 
7.162.  In order to assess whether the delays in APHIS' review process outlined in the previous 
section are undue, we address the justifications offered by the United States to explain such delays. We recall that a delay is undue if it is "unwarranted, or otherwise excessive, disproportionate or unjustifiable".
542 
7.163.  We begin our analysis with the delays in APHIS' review of Argentina's original request with 
respect to Patagonia South.543 First, with respect to the delay between March and November 2004, 
we already found in paragraphs 7.150-7.151 above th at, during that period, APHIS was waiting for 
SENASA to submit the additional information requested.544 In turn, as explained by the 
United States, APHIS' request for additional information was justified by the deficiencies in SENASA's original request for Patagonia South of August 2003.
545 Given that the information 
requested of SENASA in this instance was reasonable in the circumstances, SENASA's delay in 
providing such information cannot be attributed to APHIS.546 Therefore, with respect to this initial 
stage of the procedure, we do not find an undue de lay that can be attributed to the United States.  
7.164.  Second, with respect to the delay between  the publication of the 2005 risk analysis and 
the publication of the 2007 Proposed Rule for Patagonia South, the United States once again seeks 
to justify the delay with reference to a variety of domestic legal obligations governing the promulgation of regulations. We have already found in paragraph 7.152 above that the 
United States did not provide evidence to demons trate that there was any activity during that 
period necessary for APHIS to comply with the ci ted legal instruments. Indeed, the evidence on 
the record only shows inactivity with no justificat ion. Therefore, we find that the one-and-a-half-
year delay is undue within the meaning of Annex C(1)(a). 
7.165.  Third, we address the delay between the expiration of the comment period for the 
January 2007 Proposed Rule for Patagonia South (March 2007) and APHIS' request to conduct a 
new site visit to the region (October 2008). The United States argues that the period in question 
was required for APHIS to address the 45 comments expressed by interested parties. In particular, 
according to the United States, such comments revealed that "the risk analysis underlying the proposed rule was missing current information and improperly relied on outdated information"
547, 
therefore "APHIS needed additional time to update and reconfirm its conclusions".548  
7.166.  We note that although the United States' asserts that it was the comments which 
precipitated the need for APHIS to seek additional information and reconfirm its conclusions, 
APHIS waited over one and a half years after the expiration of the comment period to request the 
new site visit to Patagonia. The United States has not offered any justification as to why this step of its review would require such a lengthy period of time. We have already found that the time it 
took APHIS to address the comments in question was longer than ordinarily expected.
549 We also 
took the view that, in the circumstances of th is case, the need to re-confirm and update 
                                               
542 Appellate Body Report, Australia – Apples , para. 437 (referring to Panel Report, EC – Approval and 
Marketing of Biotech Products , para. 7.1495).  
543 See para. 7.159 above. 
544 Information on Patagonia Provided by SENASA (November 2004) , (Exhibit USA-103). 
545 APHIS' facsimile of 6 November 2003, (Exhibit USA-99); United States first written submission, 
para. 151 (referring to APHIS' letter of 6 November 2003, (Exhibit USA-100)). 
546 See Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1498 (where the panel 
stated that if a request for informatio n is not justified by the importing Me mber's need to check and ensure the 
fulfilment of an SPS measure, that request may cause an undue delay within the meaning of Annex C(1)(a)). 
547 United States' response to Panel question No. 33 following the second substantive meeting. 
548 United States' response to Panel question No. 63 following the first substantive meeting. 
549 See para. 7.154 above. WT/DS447/R  
 
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  pre-existing information which became outdated be cause of APHIS' inaction does not constitute a 
justification for delay in the completion of a procedure.550 Therefore, we conclude that the delay 
between March 2007 – the expiration of the comment period for the January 2007 Proposed Rule – and October 2008 – when APHIS' requested a new site visit – is undue within the meaning of 
Annex C(1)(a).  
7.167.  We now turn to the delay in APHIS' review of Argentina's request concerning Patagonia as 
a whole (i.e. comprising both Patagonia South and Patagonia North B).
551 In Argentina's view, 
APHIS' failure to finalize the process by th e time of the establishment of the Panel 
(28 January 2013) constitutes an undue delay in the approval procedure.552 For its part, the 
United States asserts that APHIS' review of the request was delayed because Argentina: (i) revised 
the application to include Patagonia North B553; and (ii) repeatedly revised the regulatory 
conditions for FMD surveillance, movement control and slaughter procedures in Patagonia.554 As a 
result, according to the United States, APHIS did not have all the information necessary to complete its risk assessment for Patagonia prior to its site visit of November 2013.
555 
7.168.  We agree with the United States that the expansion, in December 2008, of Argentina's 
original request to encompass both Patagonia South and Patagonia North B is relevant to our assessment of whether the portion of APHIS' re view devoted to Patagonia incurred an undue 
delay. As to the changes in the regulatory framework for Patagonia, the United States argues that 
SENASA's new policy (Resolution 1282/2008) "posed potential obstacles to Argentina's ability to conform with APHIS' FMD sanitation requirements" and therefore justified APHIS' delay.
556 We 
note 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 
region557, following the OIE's recognition of Patagonia North B as FMD-free where vaccination is 
not practised – the status already enjoyed by Patagonia South at that time. Although we do not 
necessarily agree with the United States' characterization of the potential effects of 
Resolution 1282/2008558, we consider that it is reasonable that a change in the very borders of the 
region APHIS was being asked to recognize as FMD-free as well as the regulatory regime 
governing that region would require additional in quiries and hence additional time for evaluation. 
Thus, we find that it was reasonable for APHIS to conduct its site visit to Patagonia as a whole in 
February 2009 and that therefore, the delay between December 2008 and February 2009 was not 
undue. 
7.169.  However, we are not persuaded that the events referred to above justify APHIS' delay 
between the February 2009 site visit to Patagonia and the date of the establishment of the Panel. 
In particular, we are not convinced by the United States' argument that APHIS did not have all the 
information necessary to complete its risk assessment for Patagonia prior to November 2013. 
Indeed, we note the communications fr om APHIS to SENASA of 27 April 2009 and 
13 September 2010 and the statements by the United States' representative before the 
SPS Committee in June and October 2011, discussed in paragraphs 7.153-7.156 above. According 
to Argentina, such communications show that APHIS had already gathered sufficient information to complete the approval process for Patagonia as a whole as a result of its site visit of February 2009.  
                                               
550 See para. 7.143 above. 
551 See para. 7.160 above. 
552 Argentina's response to Panel question No. 68 following the first substantive meeting. In its 
submissions, Argentina refers to Section 737 of the 2009 Omnibus Appropriations Act  as a non-scientific reason 
for the delay in the process. (See e.g. Argentina's first written submission, para. 701; Argentina's opening statement at the first meeting of the Panel, para. 18; Argentina's second written submission, paras. 385-389) 
For the reasons set out in paragraphs 7.139 above, we are not convinced that Section 737 caused APHIS' delay. 
553 United States' first written submission, para. 215. See also United States' response to Panel question 
No. 33 following the second substantive meeting. 
554 United States' first written submission, para. 213. 
555 United States' response to Panel question No. 33 following the second substantive meeting. 
556 United States' first written submission, para. 159. 
557 Resolución SENASA 1282/2008, (Exh ibit USA-109), Article 1.5. 
558 See paras. 7.527-7.528 below. WT/DS447/R 
 
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  7.170.  We have taken note of the United States' argument that the letter from APHIS and the 
statements made to the SPS Committee should not be construed as an admission on the part of the United States that the risk analysis was in fact completed in 2009. Nevertheless, we do not think that the letter and statements are devoid of  value for the purposes of determining whether 
there has been undue delay in conducting the procedure. Moreover, the record shows that APHIS 
did not request SENASA to provide any additional  information concerning the FMD situation in 
Patagonia following its site visit of February 2009 until after the Panel was established. Finally, the 
United States has not pointed to any specific information that APHIS was missing prior to the 
November 2013 visit, except for the need to "re-confirm and update" information already in its possession as the result of prior site visits.
559 Based on an examination of the facts in their 
entirety, we conclude that APHIS had collected su fficient information concerning the FMD situation 
in Patagonia well before the November 2013 site vi sit took place. If that were not the case, one 
would expect APHIS to communicate to SENASA what  information was missing in order to progress 
towards the completion of the process. It did not do  so. Thus, we find that the delay subsequent to 
February 2009 was attributable to the United States. As we discussed in paragraph 7.143 above, 
circumstances such as those presented in this case, the need to "re-confirm and update" pre-existing information does not constitute, in and of itself, justification for delay in the 
completion of a procedure.  
7.171.  In light of the above, we find that APHIS' delay between the site visit to Patagonia in 
February 2009 and the date of the establishment of the Panel (28 January 2013) was undue within 
the meaning of Annex C(1)(a). 
7.172.  In sum, based on all the foregoing, we conclude that: 
a. The delay between March and November 2004 is not undue, therefore the United States 
did not act inconsistently with Article 8 and Annex C(1)(a); 
b. The delay between the issuance of APHIS' ri sk analysis for Patagonia South (June 2005) 
and the publication of the Proposed Rule (January 2007) is undue, therefore the United States acted inconsistently with Article 8 and Annex C(1)(a); 
c. The delay between the expiration of the comment period for the January 2007 Proposed 
Rule (March 2007) and APHIS' request for a new site visit (October 2008) is undue, therefore the United States acted inconsistently with Article 8 and Annex C(1)(a); 
d. The delay between the site visit to Patagonia in February 2009 and the date of the 
establishment of the Panel (28 January 2013) is undue, therefore the United States 
acted inconsistently with Article 8 and Annex C(1)(a). 
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 
7.3.4.1  Arguments of the parties  7.3.4.1.1  Argentina 
7.173.  Argentina claims that APHIS' review processes of its two requests are inconsistent with 
Article 8 in conjunction with Annex C(1)(b).  
7.174.  First, Argentina submits that APHIS did not publish the standard processing period of each 
procedure. According to Argentina, the application procedures set forth in 9 CFR 92.2 do not 
indicate APHIS' standard processing period of requests.
560 Moreover, Argentina contends, APHIS 
never communicated to Argentina the anticipated processing time for its requests, despite Argentina's "specific inquiries on this matter".
561 For instance, Argentina points out, APHIS' letter 
of 24 September 2010, concerning Argentina's reques t for imports of fresh (chilled or frozen) beef, 
                                               
559 United States' response to Panel question No. 33 following the second substantive meeting. 
560 Argentina's first written submission, paras. 655, 687. 
561 Argentina's first written submission, paras. 656, 688. WT/DS447/R  
 
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  merely stated that "it is important that APHIS follow the rulemaking process to ensure that our 
decision-making is thorough and transparent".562 Similarly, according to Argentina, APHIS' letter of 
13 September 2010, concerning Argentina's request for recognition of Patagonia as FMD-free, simply explained that "APHIS must be transparent and thorough in its deliberations, meaning that 
[its] rulemaking process can take time".
563 
7.175.  Second, Argentina submits that APHIS failed to transmit as soon as possible the results of 
the procedures in a precise and complete manner to Argentina so that corrective action could be 
taken if necessary. According to Argentina, APHIS' letters of 27 April 2009 and 
24 September 2010, coupled with the United States' representative's statements before the SPS Committee of June and October 2011, indicate  that APHIS had completed risk assessments for 
Northern Argentina and for Patagonia as a whole (comprising both Patagonia South and Patagonia 
North B), which it did not publish or otherwise communicate to Argentina.
564  
7.176.  Third, Argentina complains that APHIS did not inform Argentina of the stage of the 
procedures, explaining any delay, despite Argentina's "repeated inquiries" into the status of its 
requests.565 
7.3.4.1.2  United States 7.177.  The United States contends that out of the five obligations contained in Annex C(1)(b), 
only one was mentioned in Argentina's panel request and is therefore within the Panel's terms of 
reference: the obligation to inform the applicant of the stage of the procedure and to explain any delay upon request.
566  
7.178.  Further, according to the United States, Argentina's claims must fail because APHIS 
promptly examined the completeness of Argentina's requests upon receipt and notified SENASA of 
deficiencies in such requests on multiple occasion s, explaining that it would need to provide the 
necessary additional information.567 Moreover, according to the United States, APHIS proceeded as 
far as practicable with its evaluation of Argentina's requests even when SENASA's applications had 
deficiencies.568 Finally, the United States argues that Argentina's assertion that APHIS failed to 
transmit final results of the evaluation process must fail because there were no final "results" to 
transmit at the time Argentina requested them.569 In this regard, the United States relies on the 
panel report in EC – Approval and Marketing of Biotech Products  to state that the obligation to 
transmit the results of a procedure does not arise where there are no final results.570   
7.3.4.2  Main arguments of the third parties 
7.3.4.2.1  China 
7.179.  China observes that the panel in EC – Approval and Marketing of Biotech Products  found 
that the obligation to transmit the results of the procedure to an applicant under Annex C(1)(b) did 
not apply because there were no final results which could have been communicated to applicants. 
However, in China's view, certain intermediate results should also be transmitted to the applicant, namely those pertaining to the conclusion of each step of a control, inspection or approval 
procedure.
571  
                                               
562 Argentina's first written submission, para. 656. 
563 Argentina's first written submission, para. 688. 
564 Argentina's first written submission, paras. 657-658, 689. 
565 Argentina's first written submission, paras. 659-660, 690-691. 
566 United States' second opening statement, para. 76. 
567 United States' response to Panel question No. 56 following the first substantive meeting; 
United States' statement at the second meeting of the Panel, para. 77. 
568 United States' response to Panel question No. 56 following the first substantive meeting; 
United States' statement at the second meeting of the Panel, para. 77. 
569 United States' statement at the second meeting of the Panel, para. 78. 
570 United States' response to Panel question No. 55 following the first substantive meeting. 
571 China's third-party response  to Panel question No. 22. WT/DS447/R 
 
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  7.3.4.2.2  European Union 
7.180.  The European Union takes the view that if there is no "result" of the procedure, then the 
specific obligation to transmit such a result cannot arise. In its opinion, a "result" is a decision on a request, whether definitive or provisional.
572 
7.3.4.3  Analysis by the Panel 
7.181.  Annex C(1)(b) contains five procedural requirements to be observed by Members in 
carrying out control, inspection or approval procedures573: (i) that the standard processing period 
of each procedure be published or that the anti cipated processing period be communicated to the 
applicant upon request; (ii) that when receiving an application, the competent body promptly examine the completeness of the documentation and inform the applicant in a precise and complete manner of all deficiencies; (iii) that the competent body transmit 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; (iv) that even when the application has deficiencies, the competent body proceed as far as practicable with  the procedure if the applicant so requests; and 
(v) that upon request, the applicant be informed  of the stage of the procedure, with any delay 
being explained. 
7.182.  Argentina argues the United States did not comply with the first, third, and fifth 
requirements mentioned above. The United States asserts that Argentina's claims under the first 
and third requirements of Annex C(1)(b) are not within the Panel's terms of reference because they were not included in Argentina's request for the establishment of Panel.  
7.183.  First, we assess whether Argentina's claims under Article 8 and Annex C(1)(b) are within 
the terms of reference of the Panel. To the extent th ey are, we will then turn to assessing them on 
their merits. 
7.3.4.3.1  Whether Argentina's claims under Article 8 and Annex C(1)(b) are within the 
terms of reference of the Panel 
7.184.  Article 6.2 of the DSU provides, in relevant part: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly. 
7.185.  Article 6.2 sets out two key requirements that a complainant must satisfy in its panel 
request, namely, the "identification of the specific measures at issue, and the provision of a brief 
summary of the legal basis of the complaint (or the claims)".
574 Together, these two elements 
constitute the "matter referred to the DSB", so that, if either of them is not properly identified, the 
matter would not be within the panel's terms of reference.575 As the Appellate Body has noted, a 
panel request forms the basis for the terms of reference of panels, in accordance with Article 7.1 of the DSU.
576 Moreover, it serves the due process objective of notifying the respondent and third 
parties of the nature of the complainant's case.577 
                                               
572 European Union's thir d-party response to Pa nel question No. 22. 
573 Panel Reports,  EC – Approval and Marketing of Biotech Products , para. 7.1574; US – Poultry (China) , 
para. 7.357. 
574 Appellate Body Reports, US – Carbon Steel , para. 125 (emphasis omitted); China – Raw Materials , 
para. 219. 
575 Appellate Body Reports, US – Carbon Steel , para. 125;  China – Raw Materials , para. 219. 
576 Appellate Body Reports, Guatemala – Cement I , paras. 72-73; US – Carbon Steel , para. 125; US – 
Zeroing (Japan) (Article 21.5 – Japan) , para. 107; US – Continued Zeroing , para. 160; China – Raw Materials , 
para. 219. 
577 Appellate Body Reports, EC and certain member States – Large Civil Aircraft , para. 786; US – Carbon 
Steel, para. 126; Brazil – Desiccated Coconut , p. 22, DSR 1997:I, 167, at 186;  China – Raw Materials , 
para. 219. WT/DS447/R  
 
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  7.186.  In China – Raw Materials , the Appellate Body stated that "[i]n order to determine whether 
a panel request is sufficiently precise to comply with Article 6.2 of the DSU, a panel must scrutinize carefully the language used in the panel request".
578 A panel should read the request as 
a whole and "in light of attendant circumstances".579 The Appellate Body clarified that while the 
complainant's submissions "may be referenced in order to confirm the meaning of the words used 
in the panel request", the content of those submissions "cannot have the effect of curing the failings of a deficient panel request".
580 The Appellate Body also explained that, in order "to 
present the problem clearly", a panel request must "plainly connect the challenged measure(s) 
with the provision(s) of the covered agreements claimed to have been infringed, so that the respondent party is aware of the basis for th e alleged nullification or impairment of the 
complaining party's benefits."
581 As the Appellate Body has explained, only by such connection 
between the measure(s) and the relevant provision(s) can a respondent "know what case it has to 
answer, and … begin preparing its defence".582 We also note that the Appellate Body has clarified 
that in situations where "a provision contains not one single, distinct obligation, but rather multiple 
obligations, a panel request might need to specify which of the obligations contained in the 
provision is being challenged".583 
7.187.  We note that Section 3 of Argentina's panel request is entitled "Undue delays in approval 
procedures".584 In the text of the Section, Argentina claims that the United States' application of 
the procedures set forth in 9 CFR 92.2, as well as Section 737 of the 2009 Omnibus Appropriations 
Act, resulted in "undue delays".585 In addition, Argentina claims that "[t]he United States has also 
failed to explain the delays that have occurred".586 In connecting such omissions by the 
United States to specific provisions of the SPS Agreement, Argentina claims that the United States 
acted inconsistently with "Article 8, because the United States has not acted in accordance with the provisions of Annex C.1".
587  
7.188.  Annex C(1) of the SPS Agreement contains a wide array of obligations, contained in 
subparagraphs (a) through (i). In turn, subparagraph (b) contains five distinct requirements to be observed by Members in carrying out control, insp ection or approval procedures. Given the broad 
and diverse coverage of Annex C(1), we are of the vi ew that, in order to comply with Article 6.2 of 
the DSU, Argentina was required to specify in a sufficiently clear manner which of the obligations contained in the provision it was challenging.  
7.189.  In our view, given the specific reference to "undue delay" in Annex C(1)(a), the multiple 
references to "undue delays" in the title and text of Section 3 of Argentina's panel request make it 
clear that Argentina was challenging the United States' measures under Annex C(1)(a). We further consider that the sentence in Section 3 that "[t]he  United States has … failed to explain the delays 
that have occurred" clearly connects Argentina's claims to the fifth requirement of Annex C(1)(b), 
namely that "the applicant [be] informed of th e stage of the procedure, with any delay being 
explained". However, we fail to see in Argentina's panel request any language indicating that it 
was also challenging the United States' failure to comply with the first requirement of 
                                               
578 Appellate Body Report, China – Raw Materials , para. 220. See also Appellate Body Report, EC – 
Fasteners (China) , para. 562. 
579 Panel Report, China – Publications and Audiovisual Products , para. 7.53-7.60. That panel found that 
the complainant's panel request did not meet the precision requirement under Article 6.2, inter alia , because it 
contained language suggesting to the respondent that a certain measure was only being challenged under one 
set of provisions, but not under provisions of the covered agreements to which the United States subsequently referred in its submis sions. See Ibid. para. 7.60. See also Appellate Body Reports, Korea – Dairy , paras. 124-
127; US – Carbon Steel , para. 127. 
580 Appellate Body Report, China – Raw Materials , para. 220. See also Appellate Body Reports, EC – 
Fasteners (China) , para. 562; EC and certain member States – Large Civil Aircraft , para. 642; EC – Bananas 
III, para. 143; US – Carbon Steel , para. 127. 
581 Appellate Body Report, China – Raw Materials , para. 220. See also Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Reviews , para. 162. 
582 Appellate Body Report, Thailand – H-Beams , para. 88. See also Appellate Body Reports, US – Oil 
Country Tubular Goods Sunset Review , para. 162; Brazil – Dessicated Coconut , p.20, DSR 1997:I, 167 at 186. 
583 Appellate Body Report, China – Raw Materials , para. 220. See also Appellate Body Reports, Korea – 
Dairy , para. 124; EC – Fasteners (China) , para. 598. 
584 Argentina's request for the establishment of a panel, WT/DS447/2, p. 3. 
585 Argentina's request for the establishment of a panel, WT/DS447/2, pp. 3-4. 
586 Argentina's request for the establishment of a panel, WT/DS447/2, p. 4. 
587 Argentina's request for the establishment of a panel, WT/DS447/2, p. 5. WT/DS447/R 
 
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  Annex C(1)(b), namely that "the standard processi ng period of each procedure [be] published or 
that the anticipated processing period [be] communicated to the applicant upon request".  
7.190.  Nor do we consider that the language of Argentina's panel request clearly connects its 
claims to the third requirement of Annex C(1)(b), namely that "the competent body transmit[] 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". In this respect, we note that Argentina does 
allege in the panel request that the United States has admitted at the WTO that the risk 
assessments were complete. As the United St ates never published or transmitted a risk 
assessment, such a statement could, arguably , be related to the third requirement in 
Annex C(1)(b). However, we note that Argentina makes claims under Articles 5.1 and 5.2 that there are no risk assessments. We also note that the final results of the procedure in question may 
not simply be a risk assessment, but could also in clude a change in 9 CFR 94.1 to permit imports. 
Therefore, reading the request as a whole and in li ght of the attendant circumstances, we find that 
the third requirement in Annex C(1)(b) was not identified sufficiently in Argentina's panel request 
to present the problem clearly.  
7.191.  The Panel is not suggesting that Article 6.2 requires in every instance a recitation of every 
single phrase or term found in a provision. However, in this instance given the broad reference to 
Annex C(1) which contains a broad array of obligations, more specificity is required, given that one 
of the key purposes of the panel request is to adequately notify the respondent of the case it has to defend. Referring specifically to the language  in the fifth requirement in Annex C(1)(b) while 
omitting the language of the first and third requirements, Argentina was effectively notifying the 
United States that its claims concerned the fifth requirement, but that the other four requirements 
were not relevant.
588 Although Argentina may have formulated claims and arguments about the 
first and third requirements in its submissions, this will not assist Argentina, for it would be 
improper to allow Argentina to "cure" the deficiency in the specificity of its panel request through 
reference to additional requirements in its written submissions.589 
7.192.  Based on the foregoing, we find that, of Argentina's claims under Article 8 and 
Annex C(1)(b), only that relating to the fifth requ irement is within the Panel's terms of reference.  
7.3.4.3.2  Whether the United States inform ed SENASA, upon request, of the stage of 
APHIS' reviews of its requests, explaining any delay 
7.193.  The fifth requirement of Annex C(1)(b) obliges a Member carrying out an approval 
procedure to inform the applicant of the stage of the procedure and explain the reasons for any 
delay. This requirement is qualified by the words "upon request", which indicate that the applicant must have formally asked the Member to communicate the information before a claim can be 
brought alleging the Member's breach of the provision. 
7.194.  At the outset, we recall that APHIS' review processes of Argentina's requests for imports of 
fresh (chilled or frozen) beef from Northern Argentina and for the recognition of Patagonia as 
FMD-free incurred delays.
590 The evidence on the record shows that SENASA contacted APHIS on 
more than one occasion requesting explanations as to the state of progress of its two requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD-free. For instance, on 19 July 2010 SEN ASA sent APHIS two separate letters – one for 
each approval process – asking that the "outcomes foreseen for Argentina's request[s]" be 
"elucidated" in a timely fashion.
591 Thus, in our view, the United States was under an obligation to 
explain the delays in APHIS' approval processes upon Argentina's inquiries. 
7.195.  However, APHIS did not provide precise explanations as to the stage of the procedures or 
the reasons for the delays. Concerning the approval process for imports of fresh (chilled or frozen) beef, APHIS simply stated that it was "important  that APHIS follow the rulemaking process to 
                                               
588 See Panel Report, China – Publications an d Audiovisual Products , paras. 7.53-54. 
589 See Appellate Body Report, EC – Bananas III , para. 143. 
590 See paras. 7.127 and 7.159-7.160 above. 
591 SENASA's letter of 19 July 2010, Note No. 1 50/2010, (Exhibit ARG-46) ; SENASA's letter of 
19 July 2010, Note No. 149/2010, (Exhibit ARG-61/USA-56). WT/DS447/R  
 
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  ensure that [its] decisionmaking is thorough and transparent".592 Similarly, with respect to the 
approval process for Patagonia, APHIS stated that since it needs to be "transparent and thorough" in its deliberations, its rulemaking process "can take time".
593 Further, throughout the period 
2009-2011, a number of United States' officials made statements that suggested that APHIS had 
"made significant progress in reviewing Argentina's two requests".594 In our opinion, such 
indications do not satisfy the United States' obligation to inform SENASA of the stage of APHIS' reviews and explain the reasons for the delays incurred.  
7.196.  Based on the foregoing, we take the view th at the United States failed to inform Argentina, 
upon request, of the stage of APHIS' review pr ocesses of Argentina's request or to explain the 
delays incurred by such procedures. Therefore, we find that the United States has acted inconsistently with Article 8 and the fifth requirement of Annex C(1)(b). 
7.4  Harmonization 
7.4.1  Relevant legal provisions 7.197.  Article 3 of the SPS Agreement, entitled "Harmonization" reads in relevant part:
595 
1. To harmonize sanitary and phytosanitary measures on as wide a basis as 
possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as 
otherwise provided for in this Agreement, an in particular in paragraph 3. 
2. Sanitary or phytosanitary measures which conform to international standards, 
guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant 
provisions of this Agreement and of GATT 1994.  
3.  Members may introduce or maintain sanitary or phytosanitary measures which 
result in a higher level of sanitary or phytosanitary protection than would be achieved 
by measures based on the relevant international standards, guidelines or 
recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in 
accordance with the relevant provisions of paragraphs 1 through 8 of Article 5. 
Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards guidelines or recommendations shall not be 
inconsistent with any other provision of this Agreement. (footnote omitted) 
7.198.  Annex A(3)(b) sets forth that "for animal health and zoonoses, the standards, guidelines 
and recommendations developed under the auspices of the International Office of Epizootics (OIE)" 
shall be the source of the relevant international standards, guidelines and recommendations. 
                                               
592 APHIS' letter of 24 September 2010, (Exhibit ARG-47). 
593 APHIS' letter of 13 September 2010, (Exhibit ARG-62). 
594 See paras. 7.125 and 7.156 above. 
595 Article 3 includes two additional paragraphs: Articl e 3.4, which provides that  "Members shall play a 
full part, within the limits of their resources, in the relevant international organizations and their subsidiary bodies"; and Article 3.5, which reads that the WTO SPS Committee "shall develop a procedure to monitor the 
process of international harmonization and coordinate e fforts in this regard with the relevant international 
organizations". These paragraphs are not at issue in the present dispute. WT/DS447/R 
 
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  7.4.2  Whether the United States' measur es are based on relevant international 
standards, guidelines or recommendations 
7.4.2.1  Main arguments of the parties 7.4.2.1.1  Argentina 
7.199.  Argentina argues that the United States' measures are not based on the relevant 
international standards, guidelines or recommendations contained in the Terrestrial Code. In particular, Argentina identifies Articles 8.5.22 (containing recommendations for imports of fresh 
meat of FMD-susceptible animals from FMD-free countries or zones where vaccination is not 
practised) and 8.5.23 (containing recommendations for imports of fresh meat of cattle and buffaloes from FMD-free countries or zones where vaccination is practised) as the relevant standards to which the United States' measures should be compared.
596 Argentina also identifies 
the provisions on regionalization in Chapters 4.1 and 4.3 of the Terrestrial Code and Articles 8.5.4 
and 8.5.5 on FMD designations for zones and compartments with respect to its claims regarding the treatment of products from Patagonia.
597 Argentina further mentions Article 8.5.25, 
Chapter 4.4 and Sections 1-5 of the Terrestrial Code.598 In addition, Argentina argues that the 
OIE designations of particular FMD status for identified countries or regions constitute relevant standards, guidelines or recommendations, as they are "official recognition[s]" issued by the World 
Assembly of Delegates, the "highest authority of the organization".
599 In Argentina's opinion, this 
conclusion is supported by the ordinary meaning of the words "guidelines" and "recommendations".
600 Argentina finds support for this view in the OIE's statement, in response to 
a question from the Panel, that the disease status determinations are adopted in a manner that is 
directly comparable to those used in developing standards in the Terrestrial Code.601 Argentina 
argues that to conclude otherwise would have serious implications for Members who conform their measures to the OIE under Article 3.2. In its view, the necessary implication of the finding that the 
official recognitions of disease status are not guidelines or recommendations is that Members 
attempting to rely on the OIE official recognitions of disease status would not be protected by the presumption in Article 3.2 and would be subject to  challenge for imposing measures without, for 
instance, conducting an independent risk assessment.
602 
7.200.  Argentina approaches its claims from the standpoint that this is an "as applied" case rather 
than an "as such" one.603 In other words, according to Argentina, the issue is not whether the 
United States' regulatory framework established by APHIS is "as such" based on the Terrestrial 
Code. Argentina argues that its claim is that the specific import measures applied to fresh (chilled 
or frozen) beef from Northern Argentina and on all animals, meat and other animal products from Patagonia – i.e. prohibitions – are not based on the OIE's standards, guidelines or 
recommendations.
604  
7.201.  Argentina contends that the United States' measures are "almost entirely disconnected 
from" the Terrestrial Code605 and that APHIS' regulatory system is "structured in a fundamentally 
different manner" from the OIE Terrestrial Code.606 In particular, Argentina notes that while the 
OIE recognizes both regions where vaccination is practised and not practised as FMD-free, APHIS' 
                                               
596 Argentina's first written submission, paras. 185-206. See also Argentina's resp onse to Panel question 
No. 13 following the first substantive meeting; Argentina' s comments on the United States' response to Panel 
question No. 17 following the second substantive meeting. 
597 Argentina's first written submission, paras. 415-428. 
598 Argentina's response to Panel question No. 13 following the first substantive meeting.  
599 Argentina's response to Panel question No. 17 following the second substantive meeting.  
600 Argentina's response to Panel question No. 17 following the second substantive meeting. See also 
Argentina's second written submission, para. 96. 
601 Argentina's comments on the OIE's response to Panel question No. 12. 
602 Argentina's second written submission, para. 97. See also Argentina's response to Panel question 
No. 17 following the first substantive meeting. 
603 See e.g. Argentina's second written submission, para. 89; Argentina's opening statement at the 
second meeting of the Panel, para. 33; Argentina's re sponse to Panel question No. 12 following the second 
substantive meeting. 
604 Argentina's second written submission, para. 89. See also Ibid. para. 92; Argentina's response to 
Panel question No. 12 following the second substantive meeting. 
605 Argentina's first written submission, para. 197. 
606 Argentina's response to Panel question No . 13 following the first substantive meeting. WT/DS447/R  
 
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  classification does not recognize the former as being FMD-free.607 Further, Argentina argues that 
Articles 8.5.22 and 8.5.23 both allow the importation of the relevant products under certain mitigating protocols. In its view, the mitigation protocols imposed by APHIS on products originating from countries where vaccination is practised, set forth in 9 CFR 94.22 are similar to 
those that the OIE prescribes for FMD- infected  regions where a vaccination programme exists.
608 
Conversely, Argentina contends, the United States' measures applied to its imports constitute "simple prohibition[s]".
609 Therefore, according to Argentina, the United States' measures cannot 
be said to be based on the Terrestrial Code, because a measure "that has the opposite meaning 
and effect of an international standard cannot be said to be 'built upon' an international standard."
610 In its view, had the United States based its SPS measures on these standards in the 
Terrestrial Code, imports from Argentina would have been authorized subject to different 
mitigating protocols depending on whether they originated from Patagonia or the rest of 
Argentina.611 Similarly, Argentina argues that Articles 4.3.2 and 4.3.3 of the Terrestrial Code 
provide for regionalization decisions, but that as of the date of establishment of the Panel, the 
United States had not recognized Patagonia as a separate region nor applied import protocols 
specific to the region as foreseen in the Terrestrial Code.612 
7.202.  Addressing the relationship between Articles 3.1 and 3.3, Argentina argues that the Panel 
should not misinterpret the Appellate Body's reasoning in EC – Hormones to mean that Article 3.1 
covers SPS measures with more extensive requirements than those found in international standards, so long as the standard served as the "foundation" of the measures. In Argentina's 
view, the term "except" in Article 3.1, as referred "in particular [to] paragraph 3", constitutes an 
"exclusive limitation" to the requirement to base one's measure on an international standard, 
guideline or recommendation.
613 In Argentina's view the language in Article 3.1 indicates a "binary 
choice" whereby a measure cannot, at one and the same time, be based on an international 
standard, guideline or recommendation and achieve a higher ALOP.614 For Argentina, any other 
interpretation would render the term "except" me aningless, inconsistently with the principle of 
effective treaty interpretation.615 Indeed, in its view, it would render Articles 3.1 and 3.3 
"essentially redundant" and could lead to the result that "a Member could potentially establish 
higher standards without undertaking the rigors of a valid risk assessment pursuant to Article 5", which would be "an absurd reading of the treaty language".
616 Argentina notes that the 
United States claims to apply a higher ALOP than the Terrestrial Code. Pursuant to Argentina's 
understanding of Article 3, this means that the United States' measures are not consistent with 
Article 3.1 and must comply with Article 3.3, which in turn requires the United States to comply with the other provisions of the SPS Agreement.
617 Argentina contends that, because the 
United States' measures are inconsistent with Articles 5, 2, 6618 and 10, they are thereby 
inconsistent with Article 3.3.619 
7.203.  Nevertheless, Argentina also argues that even if the Panel were to find the United States' 
measures were based on the relevant international standards, guidelines or recommendations, this 
would not be dispositive of the Panel's analysis under the other provisions of the SPS Agreement. Argentina argues that its claims under the other provisions are autonomous and continue to stand. According to Argentina, "it would be an absurd re sult if a Member could meet the lower threshold 
of Article 3.1 and still have some sort of safe harbour or other release from the obligations of the 
                                               
607 Argentina's response to Panel question No. 13 fo llowing the first substantive meeting. See also 
Argentina's second written submission, para. 98. 
608 Argentina's response to Panel question No. 13 fo llowing the first substantive meeting. See also 
Argentina's second written submission, paras. 89-91. 
609 Argentina's first written submission, para. 198. See also Ibid. para. 427. 
610 Argentina's first written submission, paras. 197 an d 200. See also Argentina's opening statement at 
the second meeting of the Panel, para. 24. 
611 Argentina's first written submission, paras. 190-191. 
612 Argentina's first written submission, paras. 426-428. 
613 Argentina's response to Panel question No . 14 following the first substantive meeting. 
614 Argentina's response to Panel question No. 14 fo llowing the first substantive meeting. See also 
Argentina's opening statement at the first meeting of the Panel, paras. 33-34; Argentina's second written 
submission, para. 98; Argentina's opening statement at the second meeting of the Panel, para. 22. 
615 Argentina's response to Panel question No . 14 following the first substantive meeting. 
616 Argentina's first written submission, para. 196. 
617 Argentina's first written submission, para. 207. 
618 We recall that Argentina rais es claims under Article 6 only with respect to Patagonia.  
619 Argentina's first written submission, paras. 226-227, 229. WT/DS447/R 
 
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  remainder of the SPS Agreement."620 Argentina notes that the United States is not seeking the 
safe harbour of conformity with the international standards, guidelines or recommendations in Article 3.2. Therefore, in its view the United  States' measures must conform to the other 
provisions of the SPS Agreement, including Articles 2, 5, 6, 8 and 10. Argentina argues that 
"[t]here is not a single word or phrase in Article 3.1 that would remove this requirement from the 
United States' obligations."
621  
7.4.2.1.2  United States 
7.204.  The United States considers that Article 1.6.4 and Chapters 2.1 and 8.5 of the 
OIE Terrestrial Code constitute international standards, guidelines or recommendations relevant to this dispute within the meaning of  Article 3 of the SPS Agreement.
622 However, the United States 
argues that the disease status designations for FMD do not in themselves constitute relevant 
international standards, guidelines or recommendations, but rather an application of the 
OIE Terrestrial Code to specific factual situations.623 In particular, the United States takes issue 
with Argentina's claim that the term "reco mmendation" encompasses OIE FMD statuses and 
maintains that the word "recommendation" should be "read together with 'standard' and 
'guideline'", whose common denominator is that they are not applications of "country-specific facts to rules or norms".
624 Furthermore, the United States argues that the fact that official recognition 
of FMD disease status is issued in the form of a resolution by the World Assembly of Delegates 
does not, in and of itself, show that they are standards, guidelines or recommendations.625 
7.205.  The United States maintains that, with respect to imports of FMD-susceptible animals and 
animal products from other countries or regions, the Terrestrial Code "lays out a system that is 
fundamentally the same in structure and approach to that of the APHIS application system" and 
that the two "mirror each other", so that APHIS' system can be said to be based on the Terrestrial Code.
626 In support of this contention, the United States compares APHIS' procedures with those 
for the recognition or reinstatement of a region as FMD-free under the Terrestrial Code. It states 
that under both the Terrestrial Code and APHIS' procedures, a country or region is not considered to be free of FMD until an application is filed by the Member concerned and a determination of 
FMD-freedom is reached by the OIE or APHIS, respectively.
627 For the United States, the factors 
applicant Members have to address in support of their requests to APHIS mirror those that they have to address when applying for OIE recognition.
628 Further, the United States argues, both the 
Terrestrial Code and APHIS' system provide that an FMD-outbreak in a country or region 
recognized as FMD-free entails the suspension of such a status, which the country or region 
affected can recover if a new application is filed and a new determination is reached by the OIE or APHIS, respectively.
629 In light of the above, the United States contends that APHIS' regulatory 
system "incorporates a substantial portion" of the Terrestrial Code.630  
7.206.  The United States observes, however, that some "notable differences" exist between the 
two systems, which stem from the United States' higher ALOP for FMD.631 First, it contends, APHIS 
always performs site visits as part of its review process, whereas such a step is optional under the 
OIE system.632 Second, the United States maintains, the OIE's evaluation of the FMD-status of an 
applicant Member "often relies entirely" on the information contained in that Member's dossier, as stated in Article 1.6.4 of the Terrestrial Code.
633 Third, the United States asserts that, unlike 
APHIS' procedures, the OIE's designation process "d oes not involve the preparation of a full risk 
                                               
620 Argentina's response to Panel question No. 15 following the first substantive meeting.  
621 Argentina's response to Panel question No. 15 fo llowing the first substantive meeting. See also 
Argentina's opening statement at the first meeting of  the Panel, para. 36; Argentina's second written 
submission, para. 99. 
622 United States' response to Panel question No. 13 following the first substantive meeting. 
623 United States' response to Panel question No. 17 following the first substantive meeting. 
624 United States' second written submission, para. 90. 
625 United States' second written submission, para. 97. 
626 United States' first written submission, para. 321. 
627 United States' first written submission, paras. 333-334. 
628 United States' first written submission, para. 334. 
629 United States' first written submission, para. 335. 
630 United States' response to Panel question No. 13 following the first substantive meeting. 
631 United States' response to Panel question No. 13 following the first substantive meeting.  
632 United States' response to Panel question No. 13 following the first substantive meeting. 
633 United States' response to Panel question No. 13 following the first substantive meeting. WT/DS447/R  
 
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  assessment" taking into account "the particularized situation of both the exporting and importing 
Members".634 Fourth, in the United States' view, the process leading up to the FMD-status 
determination of a Member is not as transparent as APHIS', in that the OIE does not publish a "lengthy opinion" to the membership but simply informs the applicant Member of the outcome of 
the evaluation, with "a summary record" of the "reasons for a positive or negative outcome".
635 
Finally, according to the United States, APHIS' sy stem "diverges slightly from the OIE's approach" 
by not designating regions where vacci nation is practised as "FMD-free".636 However, according to 
the United States, the authorization of imports of fresh (chilled or frozen) beef from Uruguay under 
the protocols set forth in 9 CFR 94.22 shows that, in certain circumstances, APHIS authorizes imports from countries that are characterized by the OIE as FMD-free where vaccination is practised.
637 
7.207.  The United States asserts that an SPS measure can be based on the relevant international 
standards, guidelines and recommendations and at the same time achieve a higher level of protection.
638 The United States argues that, in EC – Hormones , the Appellate Body found that an 
SPS measure may be based on an international standard by adopting "some, not necessarily all, of 
the elements of [that] standard".639 For the United States, the "binary choice" between Articles 3.1 
and 3.3 of the SPS Agreement set forth by Argentina erroneously conflates the based on 
requirement in Article 3.1 with the "conform to" requirement in Article 3.2.640 Thus, the 
United States maintains that its measures are based on the Terrestrial Code even if APHIS reaches a different conclusion from the OIE on a particular application of the criteria for designating a country or zone disease free
641, or if the timing of the OIE designation of disease-free status is not 
"synchronized with the timeframes of the appropriate regulatory authorities in Member 
countries."642 
7.208.  The United States argues that even if the Panel were to find that its measures comply with 
Article 3.1, such a finding would not be dispositive of Argentina's other claims643, because a 
measure consistent with Article 3.1 "does not enjoy a presumption of consistency" with the rest of the SPS Agreement and the GATT 1994. However, the United States notes that if the Panel were 
to find that the United States' measures comply with the obligations in Article 5, and thus the 
exception in Article 3.3, they would not be inconsistent with Article 3.1.
644 The United States 
nevertheless also maintains that Article 3.3 of the SPS Agreement does not apply to the United States' measures because APHIS "has not concluded its regulatory process and issued a 
final determination on Argentina's requests", whereas the provision in question only applies "when 
an SPS measure has been 'introduced and maintained' in a particular manner".
645  
7.4.2.2  Main arguments of the third parties 
7.4.2.2.1  Australia 
7.209.  Relying on past Appellate Body reports, Australia notes that Article 3 of the 
SPS Agreement expressly recognizes the righ t of WTO Members to determine their own 
appropriate level of protection.646 Based on the reasoning of the Appellate Body in EC – Hormones , 
                                               
634 United States' opening statement at the second meeting of the Panel, para. 14 (underlining omitted). 
635 United States' second written submission, para. 109. 
636 United States' response to Panel question No. 13 following the first substantive meeting. 
637 United States' response to Panel question No. 13 following the first substantive meeting. 
638 United States' response to Panel question No. 14 following the first substantive meeting. 
639 United States' second written submission , para. 73 (quoting A ppellate Body Report, EC – Hormones , 
para. 171). See also United States' response to Panel qu estion No. 14 following the first substantive meeting. 
640 United States' response to Panel question No. 14 following the first substantive meeting (referring to 
Appellate Body Report, EC – Hormones , paras. 165-171). See also United States' second written submission, 
para. 73. 
641 United States' first written submission, para. 321. 
642 United States' first written submission, para. 339. 
643 United States' response to Panel question No. 16 following the first substantive meeting. 
644 United States' response to Panel question No. 15 following the first substantive meeting. 
645 United States' second written submission, para. 99. 
646 Australia's third-party submissi on, paras. 9-12; Australia's third-party statement, paras. 10-13. WT/DS447/R 
 
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  it also asserts that there is a distinction between the terms based on in Article 3.1 and "conform 
to" in Article 3.2, with the latter imposing a higher standard.647 
7.4.2.2.2  Brazil 7.210.  In Brazil's view, the architecture of Arti cle 3 of the SPS Agreement does not preclude the 
possibility that a measure be based on an internat ional standard and, at the same time, achieve a 
higher ALOP.
648 This is because, Brazil argues, the Appellate Body found that the words "based on" 
in Article 3.1 should be read differently from the words "conform to" in Article 3.2.649 However, 
even if the United States' measures were found to be based on the OIE standards, guidelines or 
recommendations, they should still "be duly justified by a scientific reason" in order to be consistent with Article 3.3.
650 Finally, Brazil observes that the OIE's FMD-status designations for 
specific countries or regions are issued "according to the procedures applicable to the adoption of 
standards and recommendations".651 
7.4.2.2.3  China 7.211.  In China's opinion, the two parties are arguing different things, in that Argentina claims 
that the United States' "import ban" on Argentine and Patagonian products is not based on an 
international standard, whereas the United States argues that APHIS' "application system" is based on the international standard.
652 According to China, the relevant question is whether the 
United States' prohibitions on imports from Argentina and Patagonia are based on the OIE's 
standards.653 In its view, the United States' measures are not based on the OIE standards 
because, unlike the APHIS regulatory scheme, the Terrestrial Code does not prohibit trade, but simply "require[s] the exporting country, transit country and importing countries to consider the 
animal health situation before determining the requirements for trade".
654 China further observes 
that, in EC – Hormones , the Appellate Body left open the question whether, for an SPS measure to 
be based on an international standard; the measure needs to reflect the same level of sanitary 
protection as the standard.655 In China's view, the references in Article 3.3 to "measures which 
result in a level of sanitary or ph ytosanitary protection different from that which would be achieved 
by measures based on international standards, guidelines or recommendations" suggests that a 
particular ALOP is implied or reflected in every given international standard, and that in order to be 
based on such international standard, an SPS measure should achieve the same ALOP.656  
7.212.  China agrees with the United States that the OIE's FMD-status determinations for specific 
countries or regions do not constitute standards, guidelines or recommendations, but rather an 
application thereof.657 However, China also submits that such determinations are "of value for an 
importing Member to develop an SPS measure" and "for a panel to evaluate whether the SPS measure is based on the OIE standard", in that they indicate that, in the OIE's view, the 
SPS characteristics of a specific country or  region meet the OIE's standard for FMD.
658 
7.4.2.2.4  European Union 7.213.  The European Union argues that Argentina ha s cited inapposite provisions of the Terrestrial 
Code in supporting its claims under Article 3.1. In particular, the European Union notes that 
                                               
647 Australia's third-party submission, para s. 14-17 (quoting Appellate Body Report, EC – Hormones , 
para. 163); Australia's third-pa rty statement, paras. 17-18. 
648 Brazil's third-party response to Panel question No. 1. 
649 Brazil's third-party response to Panel question No. 1. 
650 Brazil's third-party response to Panel question No. 2. See also Brazil's third-party-submission, 
paras. 5-11. 
651 Brazil's third-party response to Panel question No. 2. 
652 China's third-party submission, para. 15 (emphasis omitted). 
653 China's third-party submission, para. 15. 
654 China's third-party submission, para. 16 (emphasis original); China's third- party statement, para. 11 
(quoting Appellate Body Report, EC – Hormones , para. 163). 
655 China's third-party response to Panel question No. 1 (quoting Appellate Body Report, EC – 
Hormones , para. 168). 
656 China's third-party response  to Panel question No. 1. 
657 China's third-party response  to Panel question No. 3. 
658 China's third-party response  to Panel question No. 3. WT/DS447/R  
 
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  Argentina refers to the provisions of the Terrestrial Code dealing with countries that are FMD-free 
(either with vaccination or without), whereas th e challenged measure [9 CFR 94.1(b)] deals with 
countries that are not FMD-free.659 Furthermore, the European Union asserts that the two 
Articles of the Terrestrial Code to which Argentina refers (i.e. Articles 8.5.22 and 8.5.23) do not 
provide any recommendation as to the conditions that a country or region should fulfil in order to 
fall within one of the relevant FMD-free categories.660 The European Union also notes that 
Argentina does not refer to the Articles of the Terrestrial Code that address procedures to be 
followed in relation to imports of meat from  areas that are not considered to be FMD-free.661 
Therefore, the European Union contends that Argentina has not made a prima facie  case for its 
claims under Article 3.1.662 
7.214.  Moreover, the European Union argues that because Article 3.3 only applies if a measure is 
not based on the relevant international standards, to make a prima facie  case the complainant 
must show that the challenged measure is not based on the relevant identified international standard.
663 The European Union contends that the same deficiencies in Argentina's identification 
of the relevant international standards under Articl e 3.1 apply to its claims under Article 3.3; thus 
Argentina has also failed to make a prima facie  case under Article 3.3.664 
7.215.  The European Union notes that the Appellate Body in EC – Hormones  did not specify 
whether a measure achieving a higher ALOP than an international standard, guideline or 
recommendation may, nonetheless, be "based" thereupon.665 In the European Union's opinion, 
finding that a measure is based on an international standard, guideline or recommendation only where it achieves the same ALOP would conflate the words based on in Article 3.1 and "conform 
to" in Article 3.2, contrary to the decision in EC - Hormones .
666 Moreover, the European Union also 
believes that the words "based on" are not dependent on the "level of protection achieved" by a measure because: (i) Article 3.1 does not refer to the "level of protection achieved"
667 and (ii) the 
reference in Article 3.1 to "except as otherwise provided for in this Agreement  and in particular in 
paragraph 3" suggests that Article 3.3 is "just one of the possible legal bases that would allow a Member to adopt a measure that is not 'based on' an international standard".
668  
7.216.  For the European Union, an SPS measure that selectively incorporates certain aspects of 
an international standard, guideline or recommendation, and thus " re-casts  as a whole the balance 
of provisions" contained therein, does not "conform to" nor is it based on the international standard, guideline or recommendation in question.
669 In such a case, "Article 3.3 governs the 
entire measure".670  
7.4.2.3  Analysis by the Panel 7.217.  Article 3 specifies the path towards achieving one of the key purposes of the 
SPS Agreement as set forth in the Preamble of the SPS Agreement, which states that Members: 
Desir[e] to further the use of harmonized sanitary and phytosanitary measures 
between Members, on the basis of international standards, guidelines and 
recommendations developed by the relevant international organizations, including the 
Codex Alimentarius Commission, the International Office of Epizootics, and the relevant international and regional organizations operating within the framework of 
                                               
659 European Union's third-part y submission, paras. 32-33. 
660 European Union's third-pa rty submission, para. 34. 
661 European Union's third-pa rty submission, para. 35. 
662 European Union's third-pa rty submission, para. 37. 
663 European Union's third-pa rty submission, para. 40. 
664 European Union's third-part y submission, paras. 41-42. 
665 European Union's thir d-party response to Pa nel question No. 1. 
666 European Union's thir d-party response to Pa nel question No. 1. 
667 European Union's thir d-party response to Pa nel question No. 1. 
668 European Union's third-part y response to Panel question No. 1 (emphasis original). 
669 European Union's third-part y response to Panel question No. 1 (emphasis original). 
670 European Union's third-part y response to Panel question No. 1 (emphasis omitted). WT/DS447/R 
 
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  the International Plant Protection Conventi on, without requiring Members to change 
their appropriate level of protection of human, animal or plant life or health.671  
7.218.  Although only Articles 3.1 and 3.3 are raised in this dispute, we note that the Appellate 
Body set forth its understanding of the meaning of the term "based on" in Article 3.1 by 
contrasting it with the term "conform to" in Ar ticle 3.2. The Appellate Body recognized that a 
measure that "conforms to" and incorporates an international standard is, of course, based on that standard. However, the Appellate Body reasoned  that the two provisions must have some 
distinction between their scopes of application. T hus, while the Appellate Body found the ordinary 
meaning of "conform to" to mean "'comply with', 'yield or show compliance' with the latter," it 
explained that "[a] thing is commonly said to be 'based on' another thing when the former 'stands' or is 'founded' or 'built' upon or 'is supported by' the latter." Therefore, the Appellate Body also 
concluded that a measure might be based on a standard yet not conform to it if only some, not all, 
of the elements of the standard are incorporated into the measure.
672  
7.219.  As the panel in India – Agricultural Products  noted, the guidance from the Appellate Body 
implies that the "based on" threshold in Article 3.1 is lower than the "conform to" threshold in 
Article 3.2.673 However, knowing that "based on" is less than "conform to" is not sufficient for 
understanding the concept. We find merit in the approach of the panel in India – Agricultural 
Products  which found that an understanding of "based on" should be guided by the Appellate 
Body's interpretation of the term "as a basis for" in Article 2.4 of the TBT Agreement in EC – 
Sardines.674 In EC – Sardines, the Appellate Body upheld the panel's finding that the ordinary 
meaning of the term "basis" was "the principal constituent of anything, the fundamental principle 
or theory, as of a system of knowledge".675 The Appellate Body also concluded that there must be 
a very strong and very close relationship between two things in order to be able to say that one is "the basis for" the other.
676 Finally, while it declined to define "in general the nature of the 
relationship that must exist for an international standard to serve 'as a basis for' a technical 
regulation", the Appellate Body did note that "at a minimum … something cannot be considered a 'basis' for something else if the two are contradictory ."
677  
7.220.  Extrapolating from this reasoning, we find it equally viable to say that where an 
SPS measure and the relevant international standard, guideline or recommendation contradict each other, the SPS measure cannot be said to be based on that international standard, guideline or recommendation.
678  
7.221.  The Panel will first determine whether the United States' measures are based on the 
relevant international standards, guidelines or recommendations within the meaning of Article 3.1, before turning to a discussion of Argentina's claim under Article 3.3.  
7.222.  Pursuant to the text of the provision an d guidance from the Appellate Body, an assessment 
of consistency with Article 3.1 requires a two-st ep analysis. First, the Panel needs to determine 
whether one or more of the international standard-setting bodies identified in Annex A(3) have 
established standards, guidelines or recommendations relevant to the measure(s). If relevant 
international standards, guidelines or recommendations exist, the Panel must then compare the challenged measure(s) to the international standards, guidelines or recommendations and determine whether the measure(s) are based on the relevant international standard(s), 
guideline(s) or recommendation(s). 
                                               
671 Preamble to the SPS Agreement, para. 6. We recall that the Appellate Body has determined that 
harmonization of SPS measures of Members on the basis of international standards is projected in 
the Agreement, as a goal, yet to be realized in the future.  See Appellate Body Report, EC – Hormones , 
para. 165.  
672 Appellate Body Report, EC – Hormones , para. 163. 
673 Panel Report, India – Agricultural Products , para. 7.203. 
674 Panel Report, India – Agricultural Products , para. 7.266. 
675 Appellate Body Report, EC – Sardines , paras. 243-245. See also Panel Report, EC – Sardines , 
para. 7.110. 
676 Appellate Body Report, EC – Sardines , para. 245. 
677 Appellate Body Report, EC – Sardines , para. 248 (emphasis original). 
678 Panel Report, India – Agricultural Products , para. 7.269. WT/DS447/R  
 
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  7.223.  In making our determination, we will examine whether the United States' measures 
applicable to imports of fresh (chilled or frozen ) beef from Northern Argentina are based on the 
relevant provisions of the international standard, guideline or recommendation. Then we will turn to perform a similar analysis with respect to the United States' measures applicable to Patagonia. 
7.4.2.3.1  Fresh (chilled or frozen ) beef from Northern Argentina 
7.4.2.3.1.1  Whether a relevant internatio nal standard, guideline or recommendation 
exists 
7.224.  With respect to whether a relevant inte rnational standard, guideline or recommendation 
exists, we note that Annex A(3) of the SPS Agreement designates the OIE as the relevant source for standards, guidelines or recommendations for measures relating to animal health. Thus the relevant international standards, guidelines or recommendations for a measure taken pursuant to 
Annex A(1)(a) – that is, to protect animal health from the entry, establishment, or spread of a 
pest or disease – would be those promulgated by the OIE.
679 
7.225.   Both parties identify the Terrestrial Code as the relevant international standards, 
guidelines or recommendations for the purpose of this dispute.680 Both parties refer to Chapter 8.5 
of the Terrestrial Code681, which contains the specific provisions relating to FMD.682 Argentina also 
references Articles 4.3.2 and 4.3.3 with respect to regionalization.683 Furthermore, Argentina 
maintains that the OIE's official recognition of disease status is itself an international standard, 
guideline or recommendation.684 
7.226.  As noted in section 2.4.2.1, the Terrestrial Code is made up of numerous chapters. Some 
relate to general matters while others relate to specific diseases and the measures taken to 
combat them. Chapter 8.5 is the Chapter which specifically addresses FMD.  
7.227.  Articles 8.5.2 through 8.5.8 detail the different types of status available with respect to 
F M D  a n d  w h a t  i s  r e q u i r e d  o f  t h e  e x p o r t i n g  c o u n t r y  o r  z o n e  t o  a c h i e v e  o f f i c i a l  r e c o g n i t i o n  o f  a  
particular disease status.685 Articles 8.5.12 through 8.5.33 list various recommendations on how to 
safely import FMD-susceptible animals or various products derived from them depending on whether the exporting country or zone has one of the disease statuses.
686 
                                               
679 Although not directly relevant in  the SPS context, we note that a similar understanding is embodied 
in Annex 1.2 of the Agreement on Technical Barriers to  Trade which defines a "standard" as "a document 
approved by a recognized body  that provides for common and repeated us e, rules, guidelines  or characteristics 
for products or related processes and production methods, with which compliance is not mandatory." 
(emphasis added) In interpreting this provision and the ISO/IEC Guide, the Appellate Body reasoned in EC – 
Sardines  that the relevant issue is  whether the document is approved by the recognized body and not how that 
approval comes about (i.e. consensus, voting, etc.). 
680 This is supported by the finding of the panel in India – Agricultural Products  that the Terrestrial Code, 
in particular Chapter 10.4, contained relevant international st andards, guidelines or recommendations. (Panel 
Report, India – Agricultural Products , para. 7.206)  
681 We note that the chapter numbers for the FMD pr ovisions have changed from 8.5 in the 21st edition 
(2012) to 8.6 in the 22nd edition (2013) and now 8.7 in the 23rd edition (2014). The parties have cited various 
versions of the Terrestrial Code in th eir submissions. The Panel is aware that the latest edition of the Terrestrial 
Code is the one that contains the most up-to-date eval uation by the Code Commission reflecting the latest 
scientific knowledge. However, the text of the FMD prov isions has remained largely the same. Furthermore, the 
Panel is mindful of its duty to protect the due process rights of the parties and not have the respondent answering a case based on information that did not exist at the time of the establishment of the Panel. Therefore, we concur with the panel in India – Agricultural Products  that the appropriate version of the 
Terrestrial Code to serve as a reference point for analysing Argentina's cl aims under Article 3. 1 is the version in 
force on the date of establishment of the Panel, the 21st edition (2012). Therefore, the Panel will refer to 
Chapter 8.5 throughout its findings. See e.g. Panel Report, India – Agricultural Products , para. 7.211-7.213. 
682 The United States also refers to  Article 1.6.4 which sets forth the required information when applying 
for a status-designa tion for FMD.  
683 Argentina's first written submission, paras. 415-428. 
684 Argentina's response to Panel question No. 17 following the second substantive meeting. 
685 Article 8.5.5 details the criteria for achieving official recognition as an FMD-free zone where 
vaccination is practised. 
686 OIE's response to Panel question No. 10. WT/DS447/R 
 
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  7.228.  In order to determine the relevant provisions of the Terrestrial Code, we consider it useful 
to first recall the precise measures that are subject to Argentina's claims under Article 3.1. We note that Argentina has not claimed or argued that the APHIS' "application system" is not based on the Terrestrial Code. Indeed, Argentina argues that its claims under Article 3.1 do not relate to 
the United States' regulatory system "as such", but rather "as applied" to Northern Argentina for 
fresh (chilled or frozen beef).
687 Furthermore, our understanding is that Argentina is not 
challenging APHIS' application of the procedures in 9 CFR 92.2 to Northern Argentina under 
Article 3.1. Argentina only challenges the import measures imposed – i.e. a complete prohibition 
on imports of fresh (chilled or frozen) beef from Northern Argentina. Therefore, the United States' 
arguments that the application system that APHIS operates for authorization to import is based on the provisions of the Terrestrial Code related to granting a particular disease status because the 
two systems are "fundamentally the same in structure and approach"
688 is not relevant to the 
claims before us.  
7.229.  With respect to Argentina's claims, given that Northern Argentina is a zone that 
vaccinates689, the relevant articles of the Terrestrial Code are the product-specific import 
recommendations to be applied to shipments of fresh (chilled or frozen) beef from countries or zones that vaccinate. Article 8.5.23 is the recommendation for the import measures to apply to 
fresh meat of cattle and buffaloes (excluding feet, head and viscera) from FMD-free countries or 
zones where vaccination is practised. Article 8.5.25 sets forth the recommendations for import measures applying to fresh meat of cattle and buffaloes (excluding feet, head and viscera) from FMD-infected countries or zones, where an official control programme for FMD, involving 
compulsory systematic vaccination of cattle exists. 
7.230.  Argentina argues that, in light of the re lationship between the requirements for obtaining 
an official recognition of disease status described in Articles 8.5.4-8.5.8 and the import 
recommendations in Articles 8.5.23 and 8.5.25, the official recognitions of FMD disease status are 
themselves relevant international standards, guidelines or recommendations upon which the United States should base its measures. The United States counters that the official recognitions of 
disease status are not standards, guidelines or re commendations within the meaning of Article 3 of 
the SPS Agreement because they are not embodied in the Terrestrial Code
690 and they are not 
rules or norms, but rather the application of rules or norms to country- or region-specific facts.691 
7.231.  Annex A does not set forth a specific definition of any of the terms "standards", 
"guidelines", or "recommendations". No panel has yet been faced with determining the meaning of 
these terms in the context of the SPS Agreem ent. We agree with the parties that the 
SPS Agreement does not require a fine distinction between the three terms for its proper 
application.692 The OIE seems to use the terms interchangeably, labelling the Terrestrial Code as 
part of its standard-setting activities, while the individual provisions within the Terrestrial Code are 
                                               
687 Argentina's first written submission, paras. 185-206; see also Argentina's resp onse to Panel question 
Nos. 13(a) and (c) following th e first substantive meeting. 
688 United States' first written submission, para. 321. 
689 This is evidenced by the OIE official disease st atus recognition of Northe rn Argentina as FMD-free 
where vaccination is practised. (See OIE Resolution XXI of 2007, (Exhibit ARG-10)) We also note that the European Commission's risk assessment s of Northern Argentina refer to vacci nation practices. (See e.g. 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), (European Commission's 2006 Report), (Exhibit ARG-111), pp. 11-12) Furthermore, the 2005 APHIS risk assessment of Patagonia South refers to Northern Argentina as an area where systematic vaccination occurs. (See  generally 2005 Risk Analys is for Patagonia South, 
(Exhibit ARG-9))  
690 The United States only refers to the Terrestria l Code, but we note that the OIE also promulgates 
standards in the Aquatic Code as well as th e Terrestrial Manual and the Aquatic Manual. 
691 United States' response to Panel question No. 17 following the first substantive meeting. 
United States' second written submission, para. 88 citing Exhibit USA-152, Exhibit USA-130, and Exhibit USA-153.  
692 Argentina's response to Panel question No. 17 following the first substantive meeting; United States' 
response to Panel question No. 17 following the first substantive meeting. See also United States' second 
written submission, para. 87. WT/DS447/R  
 
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  entitled "recommendations".693 The Codex Alimentarius Commission adopts "standards", 
"guidelines" and "codes of practice".694 At the time the SPS Agreement was negotiated, the 
International Plant Protection Convention (IPPC) di d not yet develop international standards, and it 
was not yet clear how it would refer to their official documents.695 The practices of the three 
organizations identified in Annex A(3) lends support to our understanding. 
7.232.  With respect to the official recognition of disease status, we note that it does not have any 
particular effect in and of itself, but rather serves two purposes. First, it is an affirmation that the 
exporting country has been determined by the OIE to have complied with the relevant provisions 
of the Terrestrial Code. Second, it is an important component in determining which of the import recommendations in Articles 8.5.12 through 8.5.33 is applicable to products from a particular exporting country or zone. The OIE strongly encourages its Members to apply those articles 
according to the official recognition of disease status.
696 However, we note that the Terrestrial 
Code is structured in the same manner for other diseases for which the OIE does not provide official recognition of the disease status.
697 Furthermore, the Terrestrial Code provides for the 
possibility of "self-declaration" of status for countries or zones that have not achieved official 
recognition.698 It is also possible for an importing Member to make its own determination as to 
whether an exporting country or zone satisfies the criteria for a particular disease status.699 Given 
that the relevant provisions of the Terrestrial Code can operate independently of any OIE official 
recognition of disease status, we believe it that it makes sense to first consider whether the United States measures are based on either Article 8.5.23 or 8.5.25 of the Terrestrial Code.  
7.4.2.3.2  Whether the United States' import  prohibitions are based on the Terrestrial 
Code 
7.233.  As noted above, our task is to determine whether the challenged measures are "founded" 
or "built" upon or "supported by" the relevant standards, guidelines or recommendations in the 
Terrestrial Code such that they serve as a prin cipal constituent or fundamental principle of the 
United States' measures. Importantly, the United States' measures cannot be said to be based on the Terrestrial Code if they contradict it. 
7.234.  As noted above, the relevant provisions of the Terrestrial Code are Article 8.5.23 and 
Article 8.5.25. The recommended conditions for importation in both of these articles are compared to the provisions in 9 CFR 94 as applicable to fresh (chilled or frozen) beef from Northern Argentina in Table 3 below. 
                                               
693 The OIE notes that in its view "all resolutions adopted by its World Assembly (including those 
addressing the official recognition of disease status ) have the same status. See OIE's response to Panel 
question No. 12(a). See also G/SPS/GEN/1256. 
694 Codex website, Home , http://www.codexalimentarius.org/ codex-home/en/ (last accessed 
3 February 2015). 
695 IPPC website, History of the IPPC , https://www.ippc.int/about/history (last accessed 3 February 
2015), noting that the IPPC was designated in the draf t of the SPS Agreement in 1989, but did not begin its 
international standard-setting programme until the IPPC Secretariat was established in 1992. 
696 The OIE explains that the achievement of an OIE- recognized status whethe r for a zone or for an 
entire country with or without vaccination is a critically  important step on the path to disease eradication and 
supports safe trade in animals and animal products. (Tran script of the meeting, para. 1.8) Furtherm ore, in the 
OIE's view official recognition of a country or zone as FMD-free is an affirmation th at the country has satisfied 
the standards contained in the Terrestrial Code. OIE's response to Panel question No. 5. 
697 For example see Chapter 10.4 of the Terrestrial Code  on avian influenza which is fully discussed in 
Panel Report, India – Agricultural Products , paras. 7.228-7.253. 
698 Terrestrial Code Article 1.6.1. OIE's response to Panel question  No. 21 explaining that for over 100 
OIE listed diseases, freedom from disease in a country or zone is the subject of self -declaration. However, the 
OIE notes that the officially-granted disease free status has much greater weight than a self-declaration made 
by a Member country. OIE's response to Panel question No. 12(a). 
699 See Transcript of the meeting, para. 1.142.  WT/DS447/R 
 
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  Table 3: Comparison of Terrestrial Code to  US Code of Federal Regulations for fresh 
(chilled or frozen) beef 
Northern Argentina: Fresh (chilled or frozen) beef 
OIE Terrestrial Code 9 CFR 94 as applied 
FMD-free where vaccination is practised  FMD-infected 
8.5.23 (for fresh meat of cattle and buffaloes (excluding feet, head and 
viscera): Veterinary authorities should require the presentation of an international veterinary certificate attesting that that the entire consignment of meat comes from animals which: 1) have been kept in the FMD free country or zone where vaccination is practised, or which have been imported in accordance with 
Article 8.5.12, Article 8.5.13, or Article 8.5.14; 2) have been slaughtered in an approved abattoir and have been 
subjected to ante- and post-mor tem inspections for FMD with 
favourable results.  Imports are prohibited. 
FMD infected countries or zones, where an official control 
programme for FMD, involving compulsory systematic 
vaccination of cattle exists FMD-infected 
8.5.25 (for fresh meat of cattle and buffaloes (excluding feet, head and 
viscera): Veterinary authorities should require the presentation of an international veterinary certificate attesting that the entire consignment of meat: 1) comes from animals which:  a) have remained in the exportin g country for at least three months 
prior to slaughter;  b) have remained, during this peri od, in a part of the country where 
cattle are regularly vaccinated agai nst FMD and where official controls 
are in operation;  c) have been vaccinated at least twice with the last vaccination not more than 12 months and not less than one month prior to slaughters;  d) were kept for the past 30 days  in an establishment, and that 
FMD has not occurred within a ten-kilometre radius of the establishment during that period;  e) have been transported, in a vehicle which was cleansed and disinfected before the ca ttle were loaded directly from the establishment 
of origin to the approved abattoir without coming into contact with other animals which do not fulfil the required conditions for export;  f) have been slaughtered in an approved abattoir.   i) which is officially designated for export;   ii) in which no FMD has been detected during the period between the last disinfection carried out befo re slaughter and the shipment for 
export has been dispatched;  g) have been subjected to ante - and post-mortem inspections for 
FMD with favourable results within 24 hours before and after slaughter; 
 2) comes from deboned carcasses:  a) from which the major lymphati c nodes have been removed;  
 b) which, prior to deboning, have been submitted to maturation at a 
temperature above +2 ˚C for a minimum period of 24 hours following 
slaughter and in which the pH value was below 6.0 when tested in the middle of both the longissimus dorsi.  Imports are prohibited.  
 
7.235.  The United States argues that it need not apply Article 8.5.23 to Northern Argentina to 
have its measures be based on the Terrestrial Code, because the official disease status recognition 
of the OIE is not itself an international standard, guideline or recommendation. As discussed in paragraph 7.231 above, the issue before us is not whether the United States is required to follow the official recognition of disease status that th e OIE has granted Northern Argentina, but whether 
the import measures it applies in 9 CFR 94.1, as amended by the 2001 Regulations, are based on 
the Terrestrial Code.  
7.236.  The Terrestrial Code provides in Articles 8.5.23 and 8.5.25 that imports from countries or 
zones that vaccinate cattle can be safely traded an d should be permitted subject to the mitigating 
protocols set forth in those articles. It is undisputed that Northern Argentina vaccinates its WT/DS447/R  
 
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  cattle.700 Argentina maintains that Northern Argentina satisfies the criteria for the status of 
FMD-free region where vaccination is practised.701 The United States explains the distinction 
between its measures and those recommended by the Terrestrial Code by noting that under 9 CFR 94, the United States does not recognize regions where vaccination is practised as 
"FMD-free": rather it considers such countries or zone to be "FMD-infected".
702 However, as noted 
above, under the relevant international standards, guidelines or recommendations a country or zone that is FMD-infected and vaccinating would be subject to the protocols in Article 8.5.25, 
which allow trade in fresh (chilled or frozen) beef under certain conditions.
703  
7.237.  The United States applies neither Article 8.5.23 nor 8.5.25 to Northern Argentina: instead, 
it prohibits imports of fresh (chilled or frozen) beef.704 A measure that prohibits trade cannot be 
said to be based on a measure that allows trade under certain conditions. Indeed, in that sense, 
the two can be said to be contradictory . 
7.238.  We note that the United States argues that even though its measures diverge from the 
Terrestrial Code because the United States has a higher level of protection than that implicit in the 
relevant provisions of the Terrestrial Code, they are still based on the Terrestrial Code. In support 
of its understanding, the United States relies on the reasoning of the Appellate Body that a measure might be based on a standard "if only some , not all, of the elements of the standard are 
incorporated into the measure".
705  
7.239.  We agree that "based on" does not require the wholesale adoption of the international 
standard, guideline or recommendation into the measure of the importing Member. As the Appellate Body noted, this would wipe out any distinction between the scope of coverage of 
Articles 3.1 and 3.2. However, we do not believe that the Appellate Body's conclusion in EC – 
Hormones stands for the proposition that Members can contradict the international standard, 
guideline or recommendation and nevertheless be deemed compliant with Article 3.1.
706  
7.240.  We take note of the United States' argument that the difference between the measures 
that it applies to Northern Argentina and the OIE's standard, guidelines or recommendations is a result of its higher level of protection. We recognize that it is an open question whether a measure 
that achieves a higher level of protection could in some circumstances nevertheless be based on 
an international standard, guideline, or recommendation that embodies a lower level of protection.
707 It is not necessary for the Panel to answer this broader interpretative question. 
                                               
700 This is evidenced by the OIE official disease st atus recognition of Northe rn Argentina as FMD-free 
where vaccination is practised. (See OIE Resolution XXI of 2007, (Exhibit ARG-10)) We also note that the European Commission's risk assessments of Northern Argentina refer to vaccination practices. (See e.g. European Commission's 2006 Report, (Exhibit ARG-11 1), pp. 11-12) Furthermore, the 2005 APHIS risk 
assessment of Patagonia Sout h refers to Northern Argentina as an ar ea where systematic vaccination occurs. 
(See generally 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9)) 
701 See e.g. Argentina's first written submission, para. 191. The criteria for a zone or compartment that 
is FMD-free where vaccination is practised can be found in Article 8.5.5 of the Terrestrial Code. 
702 United States' response to Panel question No. 13 following the first substantive meeting. The 
United States notes that it does, in the unique circumstance of Uruguay, permit a country that has been 
recognized by the OIE as FMD-free where vaccination is practised to import under the protocols set forth in 
9 CFR 94.22. However, the United States argues that, cont rary to the position of Ar gentina the mere fact that 
the United States has accepted imports from one countr y that is recognized by the OIE as FMD-free where 
vaccination is practised cannot be dispositive of whether the measures the United States applies to Northern Argentina are based on the Terrestrial Code. 
703 The OIE noted that "in the situation of a coun try that has had a recognized status from the 
OIE which is based on compulsory systematic vaccination and it has an outbreak and it loses it status due to 
that outbreak it certainly continues its vaccination. So the Article 8.5.25 would apply." (Transcript of the 
meeting, para. 1.43) In our view, this confirms our understanding that if Argentina were considered to be "infected" – as the United States does – Article 8. 5.25 would be the applicable  import recommendation. 
704 See e.g. United States' first written submission, para. 299; United States' response to Panel question 
No. 19 following the first substantive meeting. 
705 Appellate Body Report, EC – Hormones , para. 163. 
706 In this sense, see Appellate Body Report, EC – Sardines , para. 248; Panel Report, India – 
Agricultural Products , para. 7.269. 
707 Appellate Body Report, EC – Hormones , para. 168 where the Appellate Body noted that the question 
of whether a measure needs to reflec t the same level of protection as the standard to be based on that 
standard was "to be left for an other day and an other case".  WT/DS447/R 
 
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  Irrespective of the appropriate level of protection, a measure that contradicts the international 
standard, guideline or recommendation cannot be said to be based on it.  
7.241.  As noted above, the OIE considers that fresh (chilled or frozen) beef from countries or 
zones which vaccinate can be safely traded subject to the specific recommendations in 
Articles 8.5.23 and 8.5.25.708 In our view, prohibiting trade in fresh (chilled or frozen) beef from a 
region that vaccinates contradicts these provisions of the Terrestrial Code.709 Therefore, we 
conclude that 9 CFR 94.1, as amended by the 20 01 Regulations, is not based on the relevant 
provisions of the Terrestrial Code and is thus inconsistent with Article 3.1 of the SPS Agreement. 
Having reached this conclusion, we need not decide whether the OIE's official recognition of Argentina as FMD-free where vaccination is practised is itself an international standard, guideline, or recommendation.  
7.4.2.3.3  FMD susceptible animals an d products thereof from Patagonia 
7.4.2.3.3.1  Whether a relevant internatio nal standard, guideline or recommendation 
exists 
7.242.  Argentina also identifies the Terrestrial Code as the source of the international standard, 
guideline or recommendation relevant to its claims with respect to animals, meat, and animal products from Patagonia. However, Argentina raises not only the specific import measures 
recommended for FMD-free zones where vaccination is not practised, but also the provisions on 
regionalization and on establishing an FMD-free zone where vaccination is not practised.  
7.243.  The general principles for regionalization – also referred to interchangeably in the 
Terrestrial Code with "zoning" – are set forth in Chapter 4.3 of the Terrestrial Code. With respect 
to its claims, Argentina argues that the United States' import prohibitions on animals, meat and 
animal products from Patagonia are not based on the general considerations set forth in Article 4.3.2 that: 
The exporting country should be able to demonstrate, through detailed documentation 
provided to the importing country that it has implemented the recommendations in the Terrestrial Code for establishing and maintaining such a zone or compartment. 
The importing country should recognise the existence of this zone or compartment 
when the appropriate measures recommended in the Terrestrial Code are applied and the Veterinary Authority of the exporting country certifies that this is the case. 
7.244.  Article 4.3.3 sets forth the principles that an exporting Member should apply when defining 
a zone or compartment. 
                                               
708 The United States has presented a variety of concerns about vaccination and the potential risks 
associated with it. Indeed, the United States has identified these as the reasons why it believes its ALOP is higher than the level of protection embodied in the Terrestrial Code. The OIE, for its part stresses the 
importance of vaccination as a tool in disease eradic ation campaigns and that the mitigating measures in 
Articles 8.5.23 (excluding feet, head  and viscera) and 8.5.25 (excluding feet, head and viscera and requiring 
deboning and maturation) render the products safe and that science does not justify banning these products. 
(See OIE's responses to Panel question Nos. 20 and 26; and Transcript of the meeting, paras. 1.8, 1.162-1.163) 
709 The panel in India – Agricultural Products  reach a similar conclusion wi th respect to Chapter 10.4 of 
the Terrestrial Code and India's prohibitio n on poultry products. (See Panel Report, India – Agricultural 
Products , paras. 7.270-7.272)  WT/DS447/R  
 
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  Article 4.3.3 of the Terrestrial Code in relevant part: 
1. The extent of a zone and its geog raphical limits should be establishe d by the Veterinary Authority on the 
basis of natural, artificial and/or legal boundar ies, and made public through official channels. 
  5. Animals and herds belonging to such subpopulations  need to be recognisable  as such through a clear 
epidemiological separation from other animals and all things presenting a disease risk. For a zone or 
compartment, the Veterinary Authority should document in detail the measures taken to ensure the identification of the subpopulation and the establishment and maintenance of its health status through a biosecurity plan. The measures used to establish and main tain the distinct animal he alth status of a zone or 
compartment should be appropriate to the particular ci rcumstances, and will depend on the epidemiology of 
the disease, environmental factors, the health status of animals in adjacent area s, applicable biosecurity 
measures (including movement controls, use of natural and artificial boundaries, the spatial separation of 
animals, and commercial management and husbandry practices), and surveillance. 
  6. Relevant animals within the zone or compartment should be identified in such a way that  their movements 
are traceable. Depending on the system of production, identification may be done at the herd, flock lot or 
individual animal level. Relevant an imal movements into and out of the zone or compartment should be well 
documented and controlled. The existence of a valid animal  identification system is a prerequisite to assess the 
integrity of the zone or compartment.   
 
7.245.  With respect to how to define a zone seeking the official recognition of its disease status as 
being FMD-free where vaccination is not practised, the relevant provision of the Terrestrial Code is 
Article 8.5.4.710 Article 8.5.4 provides that: 
Article 8.5.4 of the Terrestrial Code 
A zone seeking this status should 
1) have a record of regular and prompt animal di sease reporting; 
2) send a declaration to the OIE stating that within the proposed FMD free zone: a. there has been no outbreak of FMD during the past 12 months; b. no evidence of FMDV infection has been found during the past 12 months; 
c. no vaccination against FMD has been carried out during the past 12 months; d. no vaccinated animal has been introduced into th e zone since the cessation of vaccination, except in 
accordance with Article 8.5.10; 3) supply documented evidence that: a. surveillance for FMD and FMDV infection in accordan ce with Articles 8.5.42 to 8.5.47 and Article 8.5.49 
is in operation; b. regulatory measures for the earl y detection, prevention and contro l of FMD have been implemented; 
4) describe in detail and supply documented evidence  that these are properly implemented and supervised: 
c. the boundaries of the proposed FMD free zone; d. the boundaries and measures of a protection zone, if applicable; 
e. the system for preventing the entry of the virus (i ncluding the control of the movement of susceptible 
animals) into the proposed FMD free zone (in particul ar if the procedure described in Article 8.5.10 is 
implemented). The proposed free zone will be included in the list of  FMD free zones where vaccination is not practised only 
after the submitted evidence ha s been accepted by the OIE. 
The information required in points 2, 3 and 4b)-c) abov e should be re-submitted annually and changes in the 
epidemiological situation or other significant events including those relevant to points 3b) and 4 should be reported to the OIE according to the requirements in Chapter 1.1. 
 
7.4.2.3.3.2  Whether the United  States' prohibitions are ba sed on the Terrestrial Code 
7.246.  In Argentina's view, for an importing Member's measures to be based on the Terrestrial 
Code that Member must recognize that there can be a zone that is FMD-free where vaccination is not practised within a country that vaccinates and apply the relevant import recommendations for that disease status to that zone. Therefore, according to Argentina, the United States' country-
wide prohibition on products from Argentina, including those from Patagonia, cannot be said to be 
based on the Terrestrial Code. 
                                               
710 We note that Argentina also refers to Article 8.5.5 of the Terrestrial Code in its first written 
submission with respect to the Patagonia claim. See Argentina's first written submission, para. 423. However, as this article deals with the requirements for achieving recognition as an FMD-free zone where vaccination is practised we do not see the relevance to the Patagonia claim which is regarding an area where vaccination is not practised. WT/DS447/R 
 
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  7.247.  As noted above, Chapter 8.5 of the Terrestrial Code is based on the premise of 
differentiating the FMD status of a country, zone or compartment according to certain criteria. For a zone that is FMD-free where vaccination is not practised, the criteria are those described in Article 8.5.4. In addition to the general provisions on establishing disease status, Chapter 8.5 
contains numerous product-specific recommendations (Articles 8.5.12 through 8.5.33) foreseeing 
the measures to be applied by importing countri es depending on the FMD-status of the country, 
zone or compartment from which the products originate. The relevant one for fresh (chilled or 
frozen) beef from zones that are FMD-free where vaccination is not practised is Article 8.5.22.
711 A 
comparison between the conditions for importation set forth in Article 8.5.22 and those in 9 CFR 94.1 for Patagonia are set forth below: 
OIE Terrestrial Code 9 CFR 94.1 as applied 
8.5.22: Veterinary authorities should require the presentation of 
an international veterinary certificate attesting that the entire consignment of meat comes from animals which: 1) have been kept in the FMD free country or zone where vaccination is not practised or a FMD free compartment, or which 
have been imported in acco rdance with Article 8.5.12, 
Article 8.5.13, or Article 8.5.14; 2) have been slaughtered in an approved abattoir and have been 
subjected to ante- and post-mor tem inspections for FMD with 
favourable results. No separate zone recognized. Treatment 
is the same as for the rest of Argentina. Therefore, imports are prohibited.  
 
7.248.  The OIE explained that providing for zoni ng and compartmentalization is an important 
element in promoting the goal of the Terrestrial Code, which is to provide for safe trade while 
avoiding unjustified sanitary barriers to trade.712 The purpose of establishing zones is to maintain 
separation in terms of the health status of two distinct populations of animals so that the appropriate health measures can be ta rgeted to the appropriate population.
713 Zoning and 
compartmentalization accomplish this goal by recognizing that disease status may not be country-
wide and that the application of import measures should be tailored to the status of the exporting 
area. This general principle is embodied in Articles  4.3.2 and 4.3.3. Article 4.3.2 provides that the 
importing country should recognize the existenc e of a zone or compartment: (i) when the 
appropriate measures recommended in the Terrestri al Code are applied; and (ii) the Veterinary 
Authority of the exporting country certifies that this is the case. Furthermore, Article 4.3.3 sets forth principles for defining and establishing a zone or compartment. 
7.249.  In our view, the text of Chapter 8.5, read  in conjunction with the general obligations on 
zoning and compartmentalization in Article 4.3.2, indicates that the import recommendations contained therein are not only intended for country-wide purposes, but are intended to apply to zones and compartments. The application by an  importing Member of the product-specific 
recommendations to zones or compartments presupposes that the exporting Member has 
established such zones or compartments within its territory according to the Terrestrial Code (in this case Articles 4.3.3 and 8.5.4). If an export ing country does so, Article 8.5.22 envisages that 
the importing Member allow the importation from that zone or compartment subject to the specific 
recommendations therein. This means that the Terrestrial Code envisages that importing Members, when applying measures to address the ri sk of entry, establishment or spread of FMD, 
will recognize that if an exporting Member is not entirely free of FMD without vaccination, it may 
have zones or compartments that are FMD-free where vaccination is not practised.
714  
7.250.  We noted above that a Member is not necessarily bound to follow the official recognitions 
of disease status to be determined to have based its measures on the Terrestrial Code. This does 
not mean, however, that if a Member wishes to base its measures on the Terrestrial Code, it can 
                                               
711 We note that even though Argentina's request to  APHIS for authorization of imports from Patagonia 
includes all products of FMD susceptible animals, including the animals themselves, Argentina has not referenced the articles of th e Terrestrial Code that deal with products other than fresh (chill ed or frozen) beef 
in respect of its claim regarding Patagonia under Article 3.1. With respect to specif ic import recommendations, 
Argentina has only mentioned 8.5.22. 
712 Terrestrial Code, Foreword. 
713 Transcript of the meeting, para. 1.18. 
714 This approach is consistent with that taken by the panel in India – Agricultural Products with respect 
to Chapter 10.4 of the Terrest rial Code. See Panel Report, India – Agricultural Products , paras. 7.254-7.263. WT/DS447/R  
 
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  decline to recognize that an exporting Member has within it zones or compartments that may have 
a different FMD disease status than the rest of the exporting Member's territory.  
7.251.  Prior to the date of establishment of the Panel, the United States applied its measures to 
imports of animals, meat and other animal products from Argentina on a country-wide basis and 
did not apply the import conditions recommended in Article 8.5.22 for zones or compartments that 
are FMD-free where vaccination is not practised. As 9 CFR 94.1, as amended by the 2001 Regulations, prohibits imports of the relevant products from the entire territory of Argentina, 
thus not allowing importation of products from a zone (namely, Patagonia), we find that the 
measures are not based on the Terrestrial Code within the meaning of Article 3.1.  
7.252.  We understand that the United States has an established process pursuant to 9 CFR 92.2 
for the recognition of particular regions – even those within the territory of a country – as being 
FMD-free. Argentina submitted an application to achieve recognition of Patagonia South as 
FMD-free in 2003. Subsequently, in 2008, Argentina expanded its application to cover an enlarged region that includes both Patagonia South and Patagonia North B – the Patagonia region. As of the 
date of the establishment of the Panel, the United States had not completed its review of 
Argentina's applications. The United States is entitled to conduct its own risk analysis and reach its own conclusions as to whether the Patagonia region is a zone that is FMD-free where vaccination is 
not practised. However, if the United States applies the current measures on a country-wide basis 
without any recognition of a zone within Argentina that could be FMD-free where vaccination is not practised, it is not basing those measures on th e relevant provisions of the Terrestrial Code.  
7.4.2.3.4  Conclusion 
7.253.  We have found that the import prohibitions on fresh (chilled or frozen) beef from Northern 
Argentina contradict the Terrestrial Code. We have also found that the non-recognition of Patagonia as a zone that is FMD-free where vaccination is not practised and to prohibit imports of 
animals, meat and animal products from that zone also contradicts the Terrestrial Code. Therefore, 
both measures are not based on the relevant international standards, guidelines or recommendations within the meaning of Article 3.1. 
7.254.  Therefore, we now turn to the question of whether the United States' measures are 
consistent with Article 3.3. 
7.4.3  Whether the United States' measures are introduced or maintained consistently 
with Article 3.3 
7.255.  The United States argues that Article 3.3 is inapplicable in the present dispute because 
that provision only applies to the introduction or maintenance of SPS measures and APHIS has not yet finished its evaluation of either Northern Argentina or Patagonia.
715 The Panel asked the 
United States to clarify its argument in light of the text of Article 3.3716 and in particular with 
respect to the factual matter of whether 9 CFR 94.1, as amended by the 2001 Regulations, is an SPS measure that is currently being maintained.
717 In response, the United States, maintaining its 
position that the appropriate provision for examin ing its measures is Article 5.7, did not address 
the Panel's questions with respect to the nature of the obligation in Article 3.3 or the factual situation vis-à-vis the maintenance of the import prohibitions in 9 CFR 94.1, as amended by the 
2001 regulations.
718 Given that the United States cannot demonstrate the underlying premise of its 
                                               
715 United States' second written submission, para. 99.  United States' response to Panel question No. 17 
following the second substantive meeting. 
716 The Panel notes that Article 3.3 re fers generally to any provision of  this agreement, which includes 
Article 5.7. It also specifically refe rs to paragraphs 1 through 8 of Articl e 5 which also includes Article 5.7. 
717 Panel question No. 17 following the second substantive meeting. 
718 United States' response to Panel question No. 17 following the second substantive meeting. We also 
note that the United States seemed to have altered its understanding of Article 3.3 when it argued that "Article 3.3 is not itself an independent obligation. Rath er, Article 3.3 serves to foreclose a finding of a breach 
of Article 3.1 in circumstances in which an importing Member chooses not to base its SPS measures on an international standard."  WT/DS447/R 
 
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  own interpretation – i.e. the absence of an SPS measure – we see no need to substantively 
address this argument.719  
7.256.  We recall that Article 3.3 codifies Members' autonomous right to establish their own ALOP 
and to adopt SPS measures that achieve a higher level of protection than would be achieved by a 
measure based on international standards, guidelines or recommendations.720 In this case, the 
United States has asserted that its measures achieve a higher level of protection than would be achieved by application of the Terrestrial Code. Ho wever, the right under Article 3.3 is not absolute 
or unqualified.
721 Pursuant to Article 3.3 the United States' measures must not be inconsistent with 
any other provision of the SPS Agreement.722  
7.257.  We have already found that the United States has acted inconsistently with Article 8 and 
Annex C(1)(a) and (b). Therefore, we find that the United States has acted inconsistently with 
Article 3.3. However, we note that Argentina also argues that the United States measures are 
inconsistent with Article 3.3 because they are also inconsistent with Articles 5.1, 5.2, 5.4, 5.6, 2.2, 2.3, 6.1, 6.2 and 10 of the SPS Agreement.
723 Therefore, we will return to the issue of whether 
there are additional inconsistencies with Article 3.3 after we have concluded our analysis of the 
rest of Argentina's claims. 
7.5  Whether the United States' measures are based on scientific principles and 
maintained with sufficient scientific evidence 
7.5.1  Relevant legal provisions 7.258.  Article 2.2 of the SPS Agreement sets forth the basic obligation that: 
Members shall ensure that any sanitary or phytosanitary measure is applied only to 
the extent necessary to protect human, animal or plant life or health, is based on 
scientific principles and is not maintained without sufficient scientific evidence, except 
as provided for in paragraph 7 of Article 5. (emphasis added) 
7.259.  Article 5.7 reads: 
In cases where relevant scientific evidence is insufficient, a Member may provisionally 
adopt sanitary or phytosanitary measures on the basis of available pertinent 
information, including that from the relevant international organizations as well as 
from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure 
accordingly within a reasonable period of time. 
7.260.  Article 5.1 reads: 
Members shall ensure that their sanitary or phytosanitary measures are based on an 
assessment, as appropriate to the circumst ances, of the risks to human, animal or 
plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.  
                                               
719 While making no specific finding, the Panel does note that the implications of the United States' 
argument could be far reaching to a co herent application of the SPS Agreemen t. If accepted, it could mean that 
a Member could simply avoid the applicability of Articl e 3.3 and other provisions of the SPS Agreement (other 
than Article 8 and Annex C(1)(a)) by refusing to re ach a determination and finalize a measure, leaving 
exporting Members with no recourse to dispute settlement on the substantive obligations in the SPS Agreement while an import prohibition remained in place.  
720 Appellate Body Report, EC – Hormones , paras. 104 and 172. 
721 Appellate Body Report, EC – Hormones , para. 173. 
722 Appellate Body Report, EC – Hormones , paras. 175-177 finding that the requirement to comply with 
all the other provisions of the SPS Agreement (including Article 5) applies both to measures adopted either (a) 
if there is a scientific justification, or (b) as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriat e. See also Appellate Body Report, Canada/US – Continued Suspension , 
para. 685. 
723 Argentina's first written submission, paras. 227 and 449. WT/DS447/R  
 
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  7.261.  Articles 5.2 and 5.3 lists various factors that Members shall take into account when 
conducting risk assessments. In particular, Article 5.2 reads: 
In the assessment of risks, Members shal l take into account available scientific 
evidence; relevant processes and production methods; relevant inspection, sampling 
and testing methods; prevalence of specific diseases or pests; existence of pest- or 
disease- free areas; relevant ecological and environmental conditions; and quarantine 
or other treatment. 
7.262.  Article 5.3 provides that: 
In assessing the risk to animal or plant life or health and determining the measure to 
be applied for achieving the appropriate level of sanitary or phytosanitary protection from such risk, Members shall take into account as relevant economic factors: the 
potential damage in terms of loss of production or sales in the event of the entry, 
establishment or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative 
approaches to limiting risks.  
7.263.  Finally, Annex A(4) of the SPS Agreement defines "risk assessment" as: 
The evaluation of the likelihood of entry, es tablishment or spread of a pest or disease 
within the territory of an importing Member according to the sanitary or phytosanitary 
measures which might be applied, and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins 
or disease-causing organisms in food, beverages or feedstuffs. 
7.264.  The Appellate Body has observed that Ar ticle 2.2 informs, imparts meaning to, and is 
made operative in other provisions of the SPS Agreement including specific obligations set out in 
Article 5.
724 Thus, in EC – Hormones, the Appellate Body stated that "Articles 2.2 and 5.1 should 
constantly be read together. Article 2.2 informs Article 5.1: the elements that define the basic 
obligation set out in Article 2.2 impart meaning to Article 5.1."725 In Australia – Apples, the 
Appellate Body concluded that the same type of relationship exists between Articles 2.2 and 5.2.726 
Likewise, panels and the Appellate Body have examined the reference to Article 5.7 in Article 2.2 and reasoned that the ability to adopt measures as described in Article 5.7 is a "qualified exemption" to the obligation in Article 2.2.
727 The panel in EC – Approval and Marketing of Biotech 
Products  reached the conclusion that Article 5.7 is a "qualified right", finding that Article 5.7 
confers a right to maintain a measure otherwise inconsistent with Article 5.1.728 Regardless of the 
specific terminology, panels and the Appellate Body have consistently found that Article 5.1 is 
applicable only if Article 5.7 is not. Therefore, in analysing Argentina's claims and the 
United States' position that its measures fall within the scope of Article 5.7, we agree with the panel in EC – Approval and Marketing of Biotech Products that a panel is bound to examine 
                                               
724 See Appellate Body Report, EC – Hormones , para. 180 and Appellate Body Reports, US/Canada – 
Continued Suspension , para. 674. See also Appellate Body Report, Australia – Salmon , para. 138; Panel 
Report, Australia – Salmon  (Article 21.5 – Canada) , paras. 7.85 and 7.161; and Panel Report, EC – Approval 
and Marketing of Biotech Products , para. 7.3399; Panel Report, US – Poultry (China) , para. 7.157. 
725 Appellate Body Report, EC – Hormones , para. 180. 
726 Appellate Body Report, Australia – Apples , para. 339. 
727 Appellate Body Report, Japan – Agricultural Products II , para. 80; see also Panel Report, Japan – 
Apples , paras. 8.210-8.212 (referring to Article 5.7 as a "defence"). See also, the Appellate Body conclusion in 
US/Canada – Continued Suspension , that Article 2.2 excludes from its scope situations where relevant scientific 
evidence is insufficient and that the applicable provision is Arti cle 5.7. Appellate Body Report, US/Canada – 
Continued Suspension , para. 674. 
728 Panel Report, EC – Approval and Marketing of Biotech Products , paras. 7.2939, 7.2945 and 7.2969 
(finding that Article 5.7 is a "right" to maintain a measure otherwise inconsistent with Article 2.2) and paras. 7.2996-7.2998 and para. 7.3004. WT/DS447/R 
 
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  whether a measure falls within the scope of the exemption in Article 5.7 before  turning to an 
analysis of Article 5.1.729   
7.265.  Therefore, we will begin our analysis with Article 5.7 and only turn to Articles 5.1, 5.2, 
and 2.2 if necessary. 
7.5.2  Whether the United States' measures fall within the scope of the exemption in 
Article 5.7 
7.5.2.1  Main arguments of the parties 
7.5.2.1.1  Argentina 
7.266.  Argentina argues that the United States' measures are not justified by Article 5.7 of the 
SPS Agreement as they fail to meet at least three of the four cumulative steps required under that 
provision.730 Accordingly, Argentina contends, the Panel should analyse such measures within the 
framework of Articles 5.1 and 5.2 of the SPS Agreement.731 
7.267.  First, Argentina argues that 9 CFR 94. 1(b) is a permanent rather than provisional 
measure.732 According to Argentina, the application of the 2001 Regulations and the prohibitions 
under 9 CFR 94.1 was never provisional in nature, as  they would have been maintained indefinitely 
had Argentina not submitted its applications.733 In Argentina's view, an SPS measure adopted 
pursuant to Article 5.1 "cannot turn into a provisional measure as described in Article 5.7 "upon 
receipt of an application from the exporting Member.734 In its opinion, the adoption of a provisional 
measure under Article 5.7 "requires some vote or other formal approval process".735 Conversely, 
according to Argentina, a permanent measure adopted under Article 5.1 can only be maintained under the conditions set forth in that provision, "i.e. pursuant to a valid risk assessment".
736 For 
Argentina, the United States did not "adopt" any pr ovisional measures at the time of the filing of 
Argentina's applications, the only change in circumstances being the applications themselves.737 In 
its view, accepting the United States' interpretation would "completely writ[e] out" the words 
"provisionally adopt" from the text of Article 5.7.738 
7.268.  Second, Argentina maintains that, with respect to the sufficiency of relevant scientific 
evidence, Articles 5.1 and 5.7 are "mutually exclusive".739 Indeed, it maintains, if at the time of 
the adoption of a provisional measure there is suffi cient scientific evidence to conduct a valid risk 
assessment, then "by definition there cannot be the requisite lack of scientific evidence required to 
invoke Article 5.7".740 Argentina takes issue with the United States' argument that the 
2001 Regulations, through which APHIS imposed its prohibitions on imports of fresh (chilled or 
                                               
729 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.3005-7.3007. However, the 
panel then proceeded to begin its analysis with Article 5.1, because, in its view, "in the specific circumstances of [the] case, the critical legal issue [was] whether the relevant safeguard measures m[e]t the requirements set out in the text of Article 5.1, not whether they [were] consistent with Article 5.7. Ibid. para. 7.3006. 
730 Argentina's first written submission, paras. 282, 287 (referring to Appellate Body Report, Japan – 
Agricultural Products II , para. 89). 
731 Argentina's response to Panel question No. 24 following the second substantive meeting. 
732 Argentina's first written submission, para. 283; Argentina's response to Panel question No. 24 
following the first substantive meeting. 
733 Argentina's second written submission, para. 194; Argentina's response to Panel question No. 24 
following the first substantive meeting. 
734 Argentina's response to Panel question No . 29 following the first substantive meeting. 
735 Argentina's response to Panel question No. 18 follo wing the second substantive meeting (referring to 
Panel Report, EC – IT Products , paras. 7.1043 and 7.1048). 
736 Argentina's response to Panel question No . 29 following the first substantive meeting. 
737 Argentina's second written submission, paras. 115, 187. See also Argentina's response to Panel 
question No. 24 following the first substantive meeting; Argentina's responses to Panel questions Nos. 18, 24, and 25 following the second substantive meeting. 
738 Argentina's second written submission, para. 116. 
739 Argentina's response to Panel question No. 24 following the second substantive meeting. 
740 Argentina's response to Panel question No. 24 following the second substantive meeting. See also 
Argentina's second written submission, para. 117. Argent ina acknowledges that the terms "scientific evidence" 
in Article 5.7 are "broad enough to encompass evidence associated with products originating in a specific country". (Argentina's response to Panel question  No. 21 following the first substantive meeting) WT/DS447/R  
 
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  frozen) beef from Northern Argentina and of FM D-susceptible animals and animal products from 
Patagonia, were based on a risk assessment. In its view, if such regulations were really based on a risk assessment "then it necessarily follows that there was sufficient information to conduct such an assessment", this excluding the applicability of Article 5.7.
741  
7.269.  Third, Argentina argues that even assuming that relevant scientific information was 
insufficient in 2001, such insufficiency had ceased by the time of the establishment of the Panel in 
January 2013.742 In its view, SENASA has provided APHIS with all the scientific information 
necessary for the United States to complete its risk assessments. This, Argentina contends, is 
evidenced by the fact that APHIS has not requested any additional information of SENASA concerning the FMD situation in Northern Argentina since 2006
743, nor has it asked for any 
additional information concerning Patagonia since 2009.744 In light of the above, Argentina 
maintains that the United States failed to seek additional scientific information within a reasonable 
period of time.745 Moreover, according to Argentina, the United States' argument about the 
application of the exporting Member under Article 6.3 transforming the pre-existing measure into 
one covered by Article 5.7 improperly places the burden of providing additional information onto 
the exporting Member instead of placing the burd en of seeking additional information and to 
review an SPS measure on the importing Member.746  
7.270.  Fourth, Argentina argues that the United States failed to review its measures within a 
reasonable period of time. Specifically, Argentina argues, in 2009-2010 APHIS confirmed that it had all the information required to proceed with the risk assessments for Argentine fresh beef and Patagonian FMD-susceptible products.
747 In its view, throughout these proceedings, the 
United States failed to identify any pieces of  information that APHIS was still missing after 2006 
(concerning Northern Argentina) and 2009 (concerning Patagonia) in order to complete its risk assessments.
748 Argentina contends that the interpretation of "undue delay" under Article 8 and 
Annex C(1) of the SPS Agreement "should inform" the analysis of the reasonableness of the time 
taken by the importing Member to review a measure under Article 5.7.749 Argentina asserts that 
the United States maintained its measures for thirteen years without conducting a risk 
assessment, which cannot "be considered consistent with the requirement that it be done within a 
reasonable period of time".750 In support of its argument, Argentina compares the period during 
which its requests have been under review since it s last FMD outbreak with that of Uruguay, which 
re-gained access to the United States' market less than two years after its last outbreak.751 
Furthermore, Argentina cites APHIS' statement in the rulemaking for Uruguay that a three to five 
year waiting period is not necessary for reauthorizing imports after an FMD outbreak.752 Finally, 
Argentina refers to the Appellate Body's statement in Japan – Agricultural Products II  that a period 
of less than three years was reasonable under Article 5.7.753 
7.271.  Furthermore, Argentina does not agree with the United States' argument that when 
circumstances warrant a new risk assessment the measure must fall within the scope of Article 5.7 
to prevent the importing Member from being co nsidered inconsistent with Article 5.1. In 
Argentina's view, the requirement under Article 5.1 that an SPS measure be based on a risk assessment "as appropriate to the circumstances" encompasses the time flexibility needed for the 
                                               
741 Argentina's second written submission, para. 186. 
742 Argentina's response to Panel question No. 25 following the second substantive meeting. 
743 Argentina's second written submission, para. 197. 
744 Argentina's second written submission, paras. 195-196. 
745 Argentina's second written submission, para. 195. 
746 Argentina's second written submission, para. 194. See also Ibid. para. 190; Argentina's response to 
Panel question No. 25 following the second substantive meeting. 
747 Argentina's response to Panel question No. 48 following the first substantive meeting; Argentina's 
second written submission, paras. 196-197. 
748 Argentina's responses to Panel questions Nos. 22 and 48 following the first substantive meeting; 
Argentina's second written submission, paras. 196-197. 
749 Argentina's response to Panel question No . 24 following the first substantive meeting. 
750 Argentina's response to Panel question No . 24 following the first substantive meeting. 
751 Argentina's first written submission, paras. 282-287. 
752 Argentina's first written submission, paras. 282-287. 
753 Argentina's response to Panel question No . 24 following the first substantive meeting. WT/DS447/R 
 
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  importing Member to carry out such a risk assessment.754 Moreover, Argentina argues that the 
implication of the United States' interpretation would be that so long as the importing Member is conducting its review, the exporting Member "would be prohibited from access to the dispute settlement system"
755 and thus "a provisional measure would always be maintained indefinitely".  
7.5.2.1.2  United States 
7.272.  The United States argues that Article 5.7 is the relevant provision of the SPS Agreement 
applicable to the timeliness of APHIS' reviews of Argentina's requests, which, in its view, 
constitutes the core issue of this dispute.756 According to the United States, the disciplines of 
Article 5.7 are informed and complemented by the obligations under Article 6.3, according to which a Member asserting that all or part of its territory is free of a disease "is obligated to bring forth the necessary evidence to show that it is and is 'likely to remain' free of disease".
757 The 
United States contends that, upon receipt of a claim of disease freedom, the importing Member 
usually does not have all the scientific information it needs to review its existing measure758, and is 
therefore "provisionally permitted to maintain and adopt measures" pursuant to Article 5.7759, 
provided it seeks to obtain from the exporting Member the additional information necessary for a 
more objective risk assessment within a reasonable period of time.760 In turn, the United States 
argues, a determination of the "reasonableness" of th e period of time under Article 5.7 is similar to 
a determination of whether a delay is undue under Article 8 and Annex C(1)(a).  
7.273.  The United States takes the view that as long as the importing Member is engaged in the 
process of evaluating the exporting Member's application for recognition of its territory as a disease-free area within a reasonable period of time, "there is no legal basis for challenging the 
importing Member's decision to maintain its existing measure".
761 Moreover, it asserts that with 
"each change in circumstance" in the exporting Member in terms of its disease situation and regulatory regime, time is required for the importing Member to evaluate such change.
762 For the 
United States, any interpretation to the contrary would imply that "importing Members must 
modify their measures immediately upon an exporting Member's assertion" concerning its disease freedom or low disease prevalence
763, thereby bearing "the risk of disease transmission pending 
the completion of the risk assessment".764 In this respect, the United States disagrees with 
Argentina that Article 5.1 provides for reasonable time flexibility for an importing Member to conduct its risk assessment. In its opinion, such  "undefined 'reasonable man' standard" has "no 
apparent basis in the text of the SPS Agreement"
765; rather, the time for the importing Member to 
conduct its assessment resides in Article 5.7.766  
7.274.  With respect to the particular measures at issue in this dispute, the United States argues 
that the 2001 Regulations, which amended 9 CFR 94.1(b) and removed Argentina's authorization 
to import, were justified at the time of imposition and are currently justified under Article 5.7 
"while the United States' review of Argentina's requests for recognition as disease-free is 
                                               
754 Argentina's response to Panel question No. 24 following the second substantive meeting (citing 
Appellate Body Report, EC – Hormones , para. 129; Panel Reports, Australia – Salmon , para. 8.56; EC – 
Approval and Marketing of Biotech Products , para. 7.3031). 
755 Argentina's second written submission, para. 70. 
756 United States' first written submission, para. 228. 
757 United States' response to Panel question No. 22 following the first substantive meeting. See also 
United States' opening statement at the first meeting of the Panel, paras. 24-25; United States' second written submission, para. 10.  
758 United States' second written submission, para. 10. See also United States' response to Panel 
question No. 24 following the first substantive meeting. 
759 United States' second written submission, para. 13. 
760 United States' second written submission, para. 11.  
761 United States' opening statement at the first meeting of the Panel, para. 48. See also United States' 
response to Panel question No. 27 follo wing the first substantive meeting. 
762 United States' response to Panel question No. 26 following the first substantive meeting. 
763 United States' second written submission, paras. 13, 31. See also United States' opening statement 
at the second meeting of the Panel, para. 30; United States' response to  Panel question No. 21 following the 
first substantive meeting. 
764 United States' second written submission, paras. 14. See also Ibid. paras.  2, 13; United States' 
opening statement at the first meeting of the Panel, para. 25. 
765 United States' response to Panel question No. 20 following the second substantive meeting. 
766 United States' response to Panel question No. 20 following the second substantive meeting. WT/DS447/R  
 
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  ongoing."767 According to the United States, from the moment Argentina filed its applications for 
approval of imports of FMD-susceptible products, the pre-existing prohibition on such products 
"can be viewed as provisional until additional necessary information is gathered to accept or reject the application[s]", thereby falling within the purview of Article 5.7 of the SPS Agreement.
768 In 
that vein, the United States takes issue with Argentina's interpretation of the word "adopt" in 
Article 5.7 as requiring some explicit approval process, which it sees as unduly "formalistic".769 It 
also disagrees with Argentina's qualification of the June 2001 Interim Regulation as a "provisional 
measure" and the December 2001 Final Regulation as a "permanent ban" on imports of fresh 
(chilled or frozen) beef from Argentina.770 For the United States, Argentina's distinction is 
"misleading"771, because the qualification of the December  2001 Regulation as "final" is only 
relevant to United States' domestic law and does not imply that the United States is permanently 
prohibiting Argentina from regaining its import authorization.772 
7.275.  The United States argues that the requ irement that there be "insufficient scientific 
evidence to conduct a risk assessment" in Article 5.7 is satisfied, because the scientific evidence 
required to accept or reject Argentina's requests evolved over time773 and had to be evaluated by 
APHIS.774 In particular, the United States argues that at the time of the filing of Argentina's 
requests there was uncertainty as to the FMD situation in the country and SENASA's "ability to 
impose and maintain internal controls so as to prevent FMD incidents".775 At that time, the 
United States contends, APHIS "took action to choose to receive and review" Argentina's applications within a reasonable period of time
776, and "is seeking to obtain the additional 
information necessary".777 The United States considers that the time-length of APHIS' approval 
processes is due to the fact that it is "so thorough and deliberate".778 Moreover, it takes the view 
that the delay in the approval process is reason able given the delays in SENASA's responses to 
APHIS' requests for additional information, the FMD outbreaks that occurred in Northern Argentina 
in 2003 and 2006, and Argentina's intentional co ncealment of the full extent of the 2000-2002 
outbreaks.779  
7.276.  The United States also contends that the application of the review procedures under 
9 CFR 92.2 for Patagonia is also justified because, prior to the filing of Argentina's request, that 
region was treated as part of the Argentine territory as a whole. The United States maintains that it is undertaking the review and seeking additional information (such as the site visit in November 2013) to finish its review within a reasonable period  of time given the delays in granting access to 
that information from Argentina.
780 
7.5.2.2  Main arguments of the third parties 7.5.2.2.1  Brazil 
7.277.  In Brazil's opinion, the United States' prohibition on Argentine imports was not a measure 
based on Article 5.1 as "there was no risk assessment on which these SPS measures were based on".
781 Brazil maintains that while Article 5.7 establishes an exception to the rule in Article 5.1, 
international standards or recommendations regarding the same situation, together with available 
and completed risk assessments, may provide levels of scientific information sufficient to exclude 
                                               
767 United States' first written submission, para. 233. 
768 United States' opening statement at the first meeting of the Panel, para. 30. See also United States' 
response to Panel question No. 18 following the second substantive meeting. 
769 United States' opening statement at the second meeting of the Panel, para. 39. 
770 United States' first written submission, para. 254 (referring to Argentina's first written submission, 
paras. 250-252). 
771 United States' first written submission, para. 254. 
772 United States' first written submission, para. 255. 
773 United States' opening statement at the second meeting of the Panel, para. 30. 
774 United States' first written submission, para. 235. 
775 United States' second written submission, para. 26.  
776 United States' second written submission, para. 32.  
777 United States' first written submission, para. 237. See also United States' second written submission, 
heading 4.a; United States' opening statement at the second meeting of the Panel, paras. 41-42. 
778 United States' opening statement at the second meeting of the Panel, para. 48. 
779 United States' first written submission, paras. 238-240. 
780 United States' first written submission, paras. 242-244. 
781 Brazil's response to Panel question No. 6. WT/DS447/R 
 
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  the applicability of Article 5.7.782 Brazil further notes that case law concerning the allocation of the 
burden of proof under Article 5.7 is "divergent", depending on whether the provision in question is 
interpreted as a "qualified exemption" or as an "autonomous right" vis-à-vis Articles 2.2 and 5.1.
783  
7.278.  Finally, according to Brazil, the main provisions regulating the time required for an 
importing Member to complete its review of an exporting Member's applications for import are Article 8 in conjunction with Annex C(1) of the SPS Agreement. Read together, such provisions 
aim, in Brazil's view, "to prevent Members from us ing lengthy and unjustified SPS procedures as a 
trade barrier to other Members' imports".
784  
7.5.2.2.2  China 7.279.  China argues that Article 5.7 requires th at there be insufficient scientific evidence to 
conduct a risk assessment at the time of imposi tion of a measure. According to China, such 
information could not be sufficient at one point and insufficient at a later point. China contends that it is illogical to argue that a permanent measure becomes provisional because insufficient 
scientific evidence arose from the process of assessment under the exception rules.
785 
7.280.  China submits that Articles 5.1 and 5. 7 are "applied in a mutually exclusive manner, 
depending on whether the relevant scientific evidence is sufficient or not".786 China states that an 
overly broad application of Article 5.7 would render it meaningless.787 According to China, whether 
"relevant scientific evidence" is "insufficient" to  conduct a risk assessment should be determined 
on a case-by-case basis.788 China acknowledges that while the existence of international standards 
and/or other risk assessments may point to the "sufficiency" of relevant scientific evidence, it is 
not conclusive of the question whether a Member has enough information to conduct a risk 
assessment.789 For China, where a proposed SPS measure targets imports from a specific country 
or region, the underlying risk assessment must addr ess both the risk present in the disease itself 
and the potential risk that may be carried by the product originating from said country or 
region.790  
7.281.  China sees the United States' arguments as contradictory in that scientific information that 
was "sufficient" to conduct a risk assessment could not become "insufficient" when Argentina 
applied for re-authorization to export.791 For China, when a measure is provisionally adopted 
pursuant to Article 5.7 the scientific information must be in some aspects insufficient.792 China 
further notes that although there is no official definition of a "provisional measure" in the 
SPS Agreement, it should be interp reted to mean a temporary measure793 based on available, 
relevant information.794 China views the United States' argument that it had sufficient scientific 
evidence and made the appropriate risk assessment before adopting the import prohibition as 
suggesting that the United States' measures were not adopted temporarily.795 Thus, China 
suggests that the Panel evaluate the post-adoption actions of the United States to determine whether the United States' measures are provisional or not.
796 
                                               
782 Brazil's response to Panel question No. 8. 
783 Brazil's response to Panel question No. 9. 
784 Brazil's response to Panel question No. 7. 
785 China's third-party submission, para. 31. 
786 China's response to Panel question No. 10. 
787 China's third-party statement, para. 2. 
788 China's response to Panel question No. 4. 
789 China's response to Panel question No. 8. 
790 China's response to Panel question No. 5. 
791 China's third-party statement, para. 5. 
792 China's third-party statement, para. 6. See also China's response to Panel question No. 10. 
793 China's response to Panel question No. 6. 
794 China's response to Panel question No. 8. 
795 China's third-party statement, para. 6. See also China's response to Panel question No. 6. 
796 China's response to Panel question No. 10a. WT/DS447/R  
 
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  7.5.2.3  European Union 
7.282.  The European Union urges the Panel to search for a harmonious interpretation of the 
various provisions within the SPS Agreement in ge neral and Article 5 in particular. The European 
Union points out that the provisions inform each other.797  
7.283.  The European Union urges the Panel not to focus on distinctions between "definitive" and 
"provisional" measures, but rather to seek to answer the question of whether the information 
adduced supports the position of the importing or exporting Member.798 The European Union also 
argues that in dispute settlement, panels should take a "reasonably flexible approach to burden of 
proof and related issues" in this context as well as consider "early use of Article 13 of the DSU."799 
7.284.  With respect to the present dispute, th e European Union notes that the situation is 
different from other disputes – namely EC – Hormones, EC – Approval and Marketing of Biotech 
Products – where there was controversy about the science. Instead, the European Union notes that 
the dispute is rather about whether the particular facts in Argentina support or do not support the maintenance of the measure. The European Union does not suggest that Article 5.7 could not be 
invoked in this type of case, but does argue that  this distinction could affect the analysis of 
whether the measure has been reviewed in a reasonable period of time. In particular, the European Union notes that one might expect the situation of incomplete information to be rectified 
sooner rather than later when the issue does not relate to the science being insufficient.
800 
7.285.  The European Union submits that this dispute should not be decided based on the 
applicability of Article 5.1 or Article 5.7, but rath er on whether there is undue delay on the part of 
the United States and whether the maintenance of the measure against Argentina is justified or 
not.801 The European Union recognizes that there should be no undue delay on the part of the 
importing Member and that a reasonable period of time in conducting an assessment must be decided on an ad-hoc  basis.
802 However, it considers that a provisional measure in terms of 
Article 5.7 could last for many years or even indefinitely.803  
7.286.  According to the European Union, it would be erroneous to consider Article 5.7 as applying 
only when a risk assessment does not exist; ra ther, a risk assessment under Article 5.7 may be 
less objective than a risk assessment conducted under Article 5.1 owing to insufficient evidence.804 
For the European Union, the real difference betw een an Article 5.1 situation and an Article 5.7 
situation turns on the amount  of scientific information available to conduct a risk assessment805, 
meaning that Article 5.7 measures may be adop ted on the basis of a hypothesis based on 
insufficient, but still relevant, scientific evidence.806 For the European Union, a measure initially 
adopted under Article 5.1 can be withdrawn and immediately replaced with a measure under Article 5.7 if the initial scientific information about the underlying situation changes.
807 According 
to the European Union, the existence of informatio n from the relevant scientific organisations does 
not in and of itself exclude the possibility to  adopt an Article 5.7 measure, because such 
information may be insufficient for the purposes of adopting measures that achieve a higher 
ALOP.808 
                                               
797 European Union's third-part y submission, paras. 60-62. 
798 European Union's third-pa rty submission, para. 61. 
799 European Union's third-party subm ission, paras. 64-65. Article 13 of  the DSU refers to the panel's 
right to seek informatio n from experts and others. 
800 European Union's third-part y submission, paras. 65-66.  
801 European Union's response to Panel question No. 6. 
802 European Union's response to Panel question No. 7. See also European Union's response to Panel 
question No. 10. 
803 European Union's response to Panel question No. 7. See also European Union's response to Panel 
question No. 10. 
804 European Union's response to Panel question No. 4. 
805 European Union's response to Panel question No. 4. 
806 European Union's response to Panel question No. 4. See also European Union's response to Panel 
question No. 5. 
807 European Union's response to Panel question No. 10. 
808 European Union's response to Panel question No. 8. WT/DS447/R 
 
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  7.5.2.4  Analysis by the Panel 
7.287.  The Appellate Body has explained that Article 5.7 operates as a "qualified exemption" from 
the obligation under Article 2.2 "not to maintain SPS measures without sufficient scientific evidence".
809 In turn, Article 5.1 is "a specific application of the basic obligations contained in 
Article 2.2".810 Thus, if a measure meets all the requirements of Article 5.7, Articles 2.2 and 5.1 do 
not apply. The requirements in question have been described by the Appellate Body as follows: 
Article 5.7 of the SPS Agreement sets out four requirements which must be met in 
order to adopt and maintain a provisional SPS measure. Pursuant to the first sentence 
of Article 5.7, a Member may provisionally adopt an SPS measure if this measure is: 
(1) imposed in respect of a situation where "relevant scientific information is 
insufficient"; and 
(2) adopted "on the basis of available pertinent information". 
Pursuant to the second sentence of Article 5.7, such a provisional measure may not be 
maintained unless the Member which adopted the measure: 
(1) "seek[s] to obtain the additional information necessary for a more objective 
assessment of risk"; and 
(2) "review[s] the … measure accordingly within a reasonable period of time". 
These four requirements are clearly cumula tive in nature and are equally important 
for the purpose of determining consistency wi th this provision. Whenever one of these 
four requirements is not met, the measure at issue is inconsistent with Article 5.7.811 
7.288.  The Appellate Body has explained that  the first two requirements relate to the adoption of 
the measure while the latter two requirements "relate to the maintenance  of a provisional 
SPS measure and highlight the provisional nature of measures adopted pursuant to Article 5.7."812 
7.289.  In this respect, we note that although the parties have addressed all four requirements in 
their arguments, Argentina's concerns relate fundamentally to the continued application, or 
maintenance, of the measure at issue. Therefor e, the Panel finds it appropriate to begin by 
examining the two requirements to seek to obta in additional information necessary for a more 
objective assessment of risk and to review the measure accordingly within a reasonable period of 
time.  
7.290.  As these requirements are cumulative, if we find that the United States has failed to 
comply with either of the latter two requirements it would be precluded from relying on Article 5.7 
to exclude the applicability of other provisions of the SPS Agreement.813 Therefore, we will only 
turn to the requirements related to the initial adoption of the measure if necessary. Our approach is consistent with the Appellate Body's finding in Japan – Agricultural Products II that it was proper 
for the panel to begin its evaluation with whet her the importing Member had complied with the 
requirements in the second sentence and, once it had concluded that the Member had not complied therewith, to decline to examine the other requirements.
814  
                                               
809 Appellate Body Report, Japan – Agricultural Products II , para. 80. We note that the panel in EC – 
Approval and Marketing of Biotech Products  referred to it as a "qualified right". Panel Report, EC – Approval 
and Marketing of Biotech Products , paras. 7.2939, 7.2945, and 7.2969 (finding that Article 5.7 is a "right" to 
maintain a measure otherwise inconsistent with Article 2.2) and paras. 7.2996-7.2998 (finding that Article 5.7 is a right to maintain a measure otherwise inco nsistent with Article 5.1), and para. 7.3004. 
810 Appellate Body Report, EC – Hormones , para. 180. 
811 Appellate Body Report, Japan-Agricultural Products II , para. 89; see also Appellate Body Report 
Japan – Apples , para. 179. 
812 Appellate Body Report, Japan – Apples , fn 318 to para. 176 (emphasis original). 
813 Appellate Body Report, Japan – Agricultural Products II , para. 91.  
814 Appellate Body Report, Japan – Agricultural Products II , para. 91.  WT/DS447/R  
 
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  7.291.  Before moving forward with our analysis, we must first address which party bears the 
burden of proof.  
7.292.  The panel in EC – Approval and Marketing of Biotech Products, operating under the 
premise that Article 5.7 is a "qualified right", concluded that because Article 5.1 is only applicable 
if Article 5.7 is not, "when a complaining party presents a claim of violation under Article 5.1, the 
burden is on the complaining party to establish a prima facie case of inconsistency with both Articles 5.1 and 5.7."
815 We observe, however, that nothing in the case law on Article 5.7 or other 
provisions which establish exemptions or provide the ability to derogate from certain WTO 
obligations supersedes the basic premise that the party asserting something bears the burden of proving it.
816  
7.293.  In light of the above, the Panel finds that the initial burden was on Argentina as part of its 
case under Article 5.1 to raise the inapplicability of Article 5.7 – which it did in its first written 
submission. As the United States has chosen to assert that its measures fall within the scope of Article 5.7, it carries the burden to prove that ea ch of the four cumulative requirements have been 
satisfied.
817 
7.5.2.4.1  "Members shall seek to obtain th e additional information necessary for a more 
objective assessment of risk"  
7.294.  Article 5.7 places the burden of seeking to obtain the additional scientific information 
necessary to perform a more objective risk assessment on the importing Member.818  
7.295.  Although Article 5.7 does not impose ex plicit prerequisites regarding the additional 
information to be collected or a specific collection procedure819, the Appellate Body has concluded 
that: 
the WTO Member adopting a provisional SPS measure should be able to identify the 
insufficiencies in the relevant scientific evidence, and the steps that it intends to take 
to obtain the additional information that will be necessary to address these 
deficiencies in order to make a more objective assessment and review the provisional measure within a reasonable period of time. The additional information to be collected 
must be "germane" to conducting the assessment of the specific risk.
820 
7.296.  As the Appellate Body stated in US/Canada – Continued Suspension , a Member 
maintaining a provisional measure under Article 5.7 has a duty to actively "make best efforts to remedy the insufficiencies in the relevant scientific evidence" with "additional scientific research" 
or "by gathering information from relevant international organizations or other sources".
821 
However, the Member "is not expected to guarantee specific results", nor "to predict the actual results of its efforts to collect additional information at the time when it adopts the 
                                               
815 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.3000. We note that the 
panel in EC – Approval and Marketing of Biotech Products  based its reasoning on the Appellate Body decision in 
EC – Tariff Preferences on similar language in the Enabling Clause, which was issued later in time than the 
Appellate Body decision that di scussed Article 5.7 of the SPS Agreement. The Appellate Body in EC – Tariff 
Preferences  stated that where the permissive provision cons titutes a right rather than an exception, "the 
complaining party bears the burden of establishing that a challenged measure is inconsistent with the provision permitting particular behavi our". Appellate Body Report, EC – Tariff Preferences , para. 88. 
816 See e.g. Appellate Body Report, Japan – Apples , para. 157 ("the party that asserts a fact is 
responsible for providing proof thereof."). Our view is confirmed by the Appellate Body in Canada – Renewable 
Energy / Canada – Feed-in Tariff Program (where the Appellate Body concluded that "the characterization of 
[a] provision as a derogation does not pre-determine the question as to which party bears the burden of proof 
with regard to the requirements stipulated in the provision.") (A ppellate Body Report, Canada –  Renewable 
Energy / Canada – Feed-in Tariff Program , para. 5.56 (referring to Appellate Body Report, China – Raw 
Materials , para. 334))  
817 We note that the United States argued that it bore the burden of proof to demonstrate the 
applicability of Article 5.7. See United States' response to Panel question No. 22 following the first substantive meeting. 
818 See e.g. Appellate Body Repot, US/Canada – Continued Suspension , para. 679. 
819 Appellate Body Report, Japan – Agricultural  Products II , para. 92. 
820 Appellate Body Report,  US/Canada – Continued Suspension , para. 679 (original footnote omitted). 
821 Appellate Body Repot, US/Canada – Continued Suspension , para. 679. WT/DS447/R 
 
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  SPS measure".822 Thus, the duty to seek additional information in order to review a provisional 
SPS measure constitutes an "obligation of means".  
7.297.  The United States seems to argue that the obligation in Article 6.3 on the exporting 
Member to "objectively demonstrate" its disease freedom would somehow trump the obligation in 
Article 5.7 to seek to obtain the additional in formation. Although the risk assessment process 
entails a dynamic exchange between the two Member s, in accordance with the general principles 
of good faith823 and mutual cooperation824, we do not believe that an application from the 
exporting Member can absolve the importing Me mber of the obligation to be "able to identify the 
insufficiencies in the relevant scientific evidence"825 and communicate them to the exporting 
Member. A plain reading of the provisions support s our view and the United States has not been 
able to persuade us of its approach.  
7.298.  Upon direct questioning from the Panel, the United States was unable to identify any 
specific deficiencies other than the need to update information that had become outdated due to the United States' own inaction.
826 We recall our finding in paragraph 7.127b above, that the 
United States made no efforts after its site visit in September 2006 to seek information from 
SENASA on the situation in Northern Argentina until after this Panel was established. We also recall our finding in paragraph 7.160 above that with respect to Patagonia (including both 
Patagonia South and Patagonia North B) the United States made no efforts to seek information 
after its site visit in February 2009 until after the establishment of this Panel.  
7.299.  In light of the above, we find that the United States has not sought to obtain the additional 
information necessary for a more objective assessment of the risk as required by Article 5.7.  
7.5.2.4.2  "… review the measure accordin gly within a reasonable period of time" 
7.300.  In Japan – Agricultural Products II , the Appellate Body stated that what constitutes a 
"reasonable period of time" within the meaning of Article 5.7 depends, inter alia , on the difficulty 
of obtaining the information necessary for a more objective assessment of risk.
827  
7.301.  The panel in EC – Approval and Marketing of Biotech Products  interpreted the terms 
"reasonable period of time" in Article 5.7 in a manner similar to the terms "undue delay" in 
Annex C(1)(a).828 We recall that this concept is not dependent on the length of the delay, but 
rather whether any delay was legitimate and justifiable829 as opposed to unwarranted or 
excessive.830 Additionally, in the context of Article 21.3(c) arbitrations – which determine the 
reasonable period of time for Members to impl ement the rulings and recommendations of the DSB 
– arbitrators have interpreted the term "reasonable period of time" to mean "the shortest period 
possible within the legal system of the [implementing] Member".831 While not directly applicable in 
these circumstances, it does suggest an understanding that when WTO Members must take 
legislative or regulatory actions involving complex legal processes to bring their measures into 
conformity with their WTO obligations reasonableness can be understood to mean as quickly as legally possible while accepting legitimate reasons for delay.  
7.302.  Furthermore, the panel in EC – Approval and Marketing of Biotech Products  explained that 
the review of the measure cannot be delayed simply because an assessment incorporating new information would not allow the importing Member to determine "with a sufficient degree of 
                                               
822 Appellate Body Repot, US/Canada – Continued Suspension , para. 679. 
823 See e.g., albeit in a different context, Panel Report, US/Canada – Continued Suspension , 
para. 7.357. 
824 Appellate Body Report, US/Canada – Continued Suspension , para. 310. See also Appellate Body 
Report, EC and certain member States – Large Civil Aircraft , para. 96. 
825 Appellate Body Report, US/Canada – Continued Suspension , para. 679 (emphasis added). 
826 See generally United States' resp onse to Panel question No. 26. 
827 Appellate Body Report, Japan – Agricultural Products II , para. 93. 
828 Panel Report, EC – Approval and Marketing of Biotech Products , paras. 7.1495-7.1497 (concerning 
Annex C(1)(a)) and 7.3245 (concerning Article 5.7). 
829 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1496. 
830 Appellate Body Report, Australia – Apples , para. 437. 
831 Award of the Arbitrator, EC – Hormones (Article 21.3(c)) , para. 26. WT/DS447/R  
 
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  precision" whether a measure different, and presumably less trade-restrictive, than its provisional 
measure would achieve its appropriate level of protection.832  
7.303.  With respect to whether the United States reviewed the measures within a reasonable 
period of time, we recall that the United States argues that the measure was "adopted" for 
purposes of Article 5.7 when Argentina initially filed its request for authorization to import fresh 
(chilled or frozen) beef from Northern Argentina in 2002.833 Accepting, for the sake of argument, 
that 2002 is the relevant date for the purpose of determining whether the United States reviewed 
the measure within a reasonable period of time, we recall our findings in paragraphs 7.131-7.145 
above, that APHIS incurred undue delays in its review of Argentina's application for Northern Argentina from September 2006 until the time the Panel was established (28 January 2013). We further recall that Argentina filed its request for recognition of Patagonia South as FMD-free in 
2003
834, and extended it to include Patagonia North B in 2008.835 In paragraphs 7.162-7.172 
above, we found that APHIS incurred undue delays in reviewing its measure as applied to Patagonia from June 2005 to January 2007, from March 2007 to October 2008, and from February 
2009 until the establishment of the Panel. We see no reason not to apply our reasoning and 
findings outlined above to our assessment here. Therefore, we find that the United States has not reviewed its measures within a reasonable peri od of time as required under Article 5.7. 
7.5.2.5  Conclusion 
7.304.  We have found that the United States did not seek to obtain additional information nor did 
it review the measure within a reasonable period of time. Having found that the United States did 
not satisfy either the third or the fourth requirem ent, there is no need to consider whether the 
measures were provisionally adopted based on available pertinent information in a case where 
relevant scientific evidence is insufficient.
836 On the basis of our findings with respect to the third 
and fourth requirements, the measures do not fall within the scope of Article 5.7 and the qualified 
exemption to the obligations in Articles 5.1, 5.2 and 2.2 is not available to the United States. Thus, 
we now turn to assess the conformity of the United  States' measures with Articles 5.1, 5.2 and 2.2 
of the SPS Agreement. 
7.5.3  Whether the United States' meas ures are based on a risk assessment 
7.5.3.1  Main arguments of the parties 7.5.3.1.1  Argentina 7.305.  Argentina claims that the United States' measures are inconsistent with Articles 5.1 and 
5.2 of the SPS Agreement because they are not based on a valid risk assessment.
837  
7.306.  Argentina argues that the 2001 Regulations,  withdrawing authorization of imports of fresh 
(chilled or frozen) beef from Northern Argentina and FMD-susceptible animals and animal products 
from Patagonia, do not contain a "risk assessment" within the meaning of Article 5.1, but rather 
"nothing more than a recitation of facts, as well as a statement of the potential negative economic impact of an FMD outbreak in the United States."
838 According to Argentina, this means that the 
prohibition as applied to Argentina is therefore inconsistent with Article 5.2, which requires a 
                                               
832 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.3245. 
833 Information Provided by SENASA (November 2002), (Exhibit USA-32).  The Panel takes no position 
on whether this constitutes "adoption" of a measure within the meaning of Article 5.7 of the SPS Agreement. We simply use this point as a point of refere nce for our analysis un der this requirement. 
834 Information Provided by SEN ASA (July 2003), (Exhibit USA-98). 
835 SENASA's letter of 17 December 2008, (Exh ibit ARG-59/USA-111); SENASA's letter of 
30 January 2009, (Exhibit ARG-60/USA-112). 
836 We note that the parties have provided argume ntation on these issues that raises important 
interpretative questions about when Article 5.7 is applicable and the scope of the qualified exemption in Article 5.7 – in particular in respect of the relationship between Article 5.7 and Article 6. However, given the circumstances of the present dispute these questions are better left for anothe r day and another case.  
837 Argentina's first written submission, paras. 231 and 255. 
838 Argentina's first written submission, para. 251; Argentina's response to Panel question No. 24 
following the second substantive meeting. WT/DS447/R 
 
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  Member to take into account inter alia  scientific evidence in the assessment of risk.839 Moreover, 
Argentina contends that even if the interim ru le adopted in June 2001 was a valid provisional 
measure, the final regulation adopted in Dece mber 2001 has been maintained for over 11 years.840 
For Argentina, "reliance on facts from more than eleven years ago does not suffice either as a 
provisional measure or as a valid risk assessment".841 
7.307.  Argentina notes that the panel in US – Poultry (China) reasoned that an analysis under 
Article 5.1 necessarily begins with a determination whether a risk assessment was conducted at 
all.842 Argentina argues that the United States cannot demonstrate that its measures are 
"rationally related to a risk assessment" because one does not exist.843  
7.308.  Regarding the United States' prohibition on imports of fresh (chilled or frozen) beef 
originating in the Argentine territory as a whole, Argentina states that "there is no current valid 
risk assessment" underlying the measure in question.844 According to Argentina, the only publicly 
available risk assessments regarding Argentina as a whole – from 1997 and 2000, respectively – and for Patagonia South specifically – from 2005 – were all favourable to imports of Argentine 
fresh (chilled or frozen) beef subject to certain mitigating protocols.
845  
7.309.  Argentina argues that the sanitary conditions in Argentina have improved radically since 
imposition of the prohibition in 2001 and thus even  if the measure was based on a risk assessment 
at the time or justified as an emergency measure, it no longer can be considered "appropriate to 
the circumstances" because it bears no rational or objective relationship to Argentina's current sanitary conditions.
 846  
7.310.  With regard to the United States' prohib ition on imports of FMD-susceptible animals and 
animal products from Patagonia, Argentina argues that, to the extent that APHIS consulted 
scientific evidence, "such evidence supported th e opposite conclusion from the prohibitive 
measure" actually applied.847 In Argentina's opinion, the United States' measures as applied to 
Patagonia South are "obvious[ly]" rationally disconnected from the favourable risk assessment 
conducted in the region, and are therefore inconsistent with Article 5.1.848 With respect to 
Patagonia North B, Argentina notes that "[t]here has never been a risk assessment publicly 
available" on Patagonia North B even though Arge ntina provided to APHIS the relevant scientific 
information in December 2008, prior to an APHIS fact-finding trip to the region in early 2009.849 
Therefore, Argentina concludes, the United States' measures as applied to imports from Patagonia North B are "not rationally and objectively related" to a risk assessment that "does not legally 
exist", and hence are inconsistent with Article 5.1.
850 Argentina maintains that the "rational 
disconnect" between the underlying scientific evidence and the prohibition imposed indicates that the United States' measures as applied to Patagonia are also inconsistent with Article 5.2.
851  
7.5.3.1.2  United States 
7.311.  The United States argues that the 2001 Regulations – through which it withdrew 
authorization of imports of fresh (chilled or frozen) beef from Argentina – were based on a risk 
                                               
839 Argentina's first written submission, paras. 253-256. 
840 Argentina's first written submission, para. 251. 
841 Argentina's first written submission, para. 251. 
842 Argentina's first written submission, para. 243 (referring to Panel Report, US – Poultry (China) , 
para. 7.174). 
843 Argentina's first written submission, para. 241. 
844 Argentina's first written submission, para. 234. 
845 Argentina's first written submission, paras. 237-239. 
846 Argentina's first written submission, paras. 244-246. To support its contention that Argentina's 
sanitary condition has "improved radically" since 2001, Argentina refers to the OIE designations of both 
Argentina and Patagonia, the time that has passed since the most recent outbreaks, and the limitation and quick containment and elimination of the last outbreak. 
847 Argentina's first written submission, para. 462. 
848 Argentina's first written submission, para. 454. 
849 Argentina's first written submission, para. 456. 
850 Argentina's first written submission, para. 457. 
851 Argentina's first written submission, para. 463. WT/DS447/R  
 
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  assessment as appropriate to the circumstances.852 According to the United States, the risk 
assessment in question was grounded on the "well- established body of scientific evidence" showing 
that FMD "is one of the most highly contagious and devastating animal disease[s]"853, as well as 
an evaluation of the dangers posed by Argentine products in light of the 2000-2001 FMD outbreaks 
in the country.854 In this regard, the United States observes that, at the time of the outbreaks, 
Argentina itself recognized the gravity of the situation by voluntarily ceasing exports and the OIE removed Argentina from it s list of FMD-free regions.
855  
7.312.  According to the United States, after APHIS withdrew import authorization from Argentina 
in 2001, "there was no reason to believe that it needed to actively revisit that decision"856 until 
Argentina filed its requests pursuant to the procedures set forth in 9 CFR 92.2. Since the filing of Argentina's requests, the United States argues that its prohibitions can be viewed as provisional 
measures falling within the scope of Article 5.7.
857 Indeed, the thrust of the United States' 
argument with respect to the maintenance of the measures at issue is that since such measures are justified under Article 5.7, they are also consistent with Articles 5.1 and 5.2.
858 
7.313.  According to the United States, APHIS is in the process of conducting a risk assessment 
that will take a substantial amount of time and that has been complicated by further FMD outbreaks in Argentina, delays in Argentina responding to requests for information, the 
changing nature of Argentina's application with respect to Patagonia
859, and Argentina's changing 
OIE status in the intervening years.860 In sum, the United States concludes, the perceived length 
of the rulemaking process is due to the fact that APHIS has been working "with a moving target on the Argentina side".
861  
7.5.3.2  Main arguments of the third parties 
7.5.3.2.1  Brazil 7.314.  In Brazil's opinion, the United States' prohibition on Argentine imports was not a measure 
consistent with Article 5.1 as "there was no risk assessment on which these SPS measures were 
based on".
862 Brazil maintains that while Article 5.7 establishes an exception to the rule in 
Article 5.1, international standards or recommendations regarding the same situation, together 
with available and completed risk assessments, may provide levels of scientific information 
sufficient to exclude the applicability of Article 5.7.863 
7.5.3.2.2  China 7.315.  China submits that Articles 5.1 and 5. 7 are "applied in a mutually exclusive manner, 
depending on whether the relevant scientific evidence is sufficient or not".
864 
7.316.  China points to the panel report in US – Poultry (China), which  set forth a two-step 
analytical process under Article 5.1 of the SPS Agreement. The report stated that a panel must 
assess whether: (a) a risk assessment, appropriate to the circumstances, takes into account risk 
                                               
852 United States' first written submission, para. 253; United States' response to Panel question No. 24 
following the first substantive meeting. 
853 United States' first written submission, para. 253. See also United States' response to Panel question 
No. 24 following the first substantive meeting. 
854 United States' first written submission, paras. 247, 262. See also United States' response to Panel 
question No. 24 following the first substantive meeting. 
855 United States' first written submission, para. 251. 
856 United States' response to Panel question No. 24 following the first substantive meeting.  
857 United States' opening statement at the first meeting of the Panel, para. 30. See also United States' 
response to Panel question No. 18 following the second substantive meeting. 
858 United States' first written submission, para. 246. For a more comprehensive account of the 
United States' arguments in connection with Article 5.7, see paras. 7.272-7.276 above. 
859 United States' first written submission, para. 263. 
860 United States' first written submission, paras. 258-260. 
861 United States' first written submission, para. 264. 
862 Brazil's response to Panel question No. 6. 
863 Brazil's response to Panel question No. 8. 
864 China's response to Panel question No. 10. WT/DS447/R 
 
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  assessment techniques developed by the relevant international organizations; and (b) whether the 
SPS measure at issue is based on that risk assessment.865 Further, China argues, relying on the 
Appellate Body report in Japan – Agricultural Products , that if the Panel were to find that Argentina 
established a presumption that no scientific evidence or valid risk assessment exists at all, 
Argentina should prevail unless the United States rebuts such a presumption.866  
7.5.3.2.3  European Union 7.317.  The European Union contends that the ge neral import prohibition on imports of animals 
and products thereof from FMD-infected regions is consistent with Article 5.1 of the 
SPS Agreement if, at the time of its adoption
867, it was supported by a risk assessment showing 
that: (i) FMD poses risks to human or animal health or life; and (ii) preventing the introduction of infected animals or products thereof is a proper response to the risks posed by FMD.
868 According 
to the European Union, the risk assessment need not include an analysis of which specific regions 
of the world are actually FMD-infected.869  
7.318.  For the European Union, the real difference between an Article 5.1 situation and an 
Article 5.7 situation turns on the amount  of scientific information available to conduct a risk 
assessment870, meaning that Article 5.7 measures may be adopted on the basis of a hypothesis 
based on insufficient, but still relevant, scientific evidence.871 For the European Union, a measure 
initially adopted under Article 5.1 can be withdrawn and immediately replaced with a measure 
under Article 5.7 if the initial scientific information about the underlying situation changes.872 
7.5.3.3  Analysis by the Panel 7.319.  In this dispute, Argentina has argued two independent reasons why the United States' 
measures are inconsistent with Article 5.1. First, that the measures adopted in 2001 that removed 
Argentina's authorization to import were not based on a risk assessment at the time of their adoption. Second, Argentina argues that even if  the measures were based on a risk assessment 
when they were adopted, they were not maintained based on a valid risk assessment as of the 
date of establishment of the Panel. The Pa nel will address each argument in turn. 
7.320.  Argentina has also argued that the United States has acted inconsistently with Article 5.2. 
The panel in Japan – Apples  clarified that the requirements in  Articles 5.1 and 5.2 inform the 
understanding of what is required for a risk assessment to be consistent with Article 5.1.
873 That 
panel explained that Articles 5.1 and 5.2 "directly inform each other, in that paragraph 2 sheds light on the elements that are of relevance in the assessment of risks foreseen in paragraph 1".
874 
The same panel  further explained that Article 5.2 "imparts meaning"875 to the general obligation in 
Article 5.1 to base measures on an "assessment … of risks". We agree with that panel and the panel in Australia – Apples which explained that Article 5.2 should be considered when looking at 
Article 5.1.
876 Therefore, we will conduct our analysis of Argentina's claims under Article 5.2 within 
the context of our analysis of its claims under Article 5.1. 
                                               
865 China's third-party submission, para. 34 (citing Panel Report, US – Poultry (China) , para. 7.173. 
866 China's third-party submission, paras.  35-36 (citing Appellate Body Report, Japan – Agricultural 
Products II , para. 137). 
867 European Union's third-pa rty submission, para. 48. 
868 European Union's third-pa rty submission, para. 46. 
869 European Union's third-pa rty submission, para. 47. 
870 European Union's response to Panel question No. 4. 
871 European Union's response to Panel question No. 4. See also European Union's response to Panel 
question No. 5. 
872 European Union's response to Panel question No. 10. 
873 Panel Report, Japan – Apples , para. 8.230. 
874 Panel Report, Japan – Apples , para. 8.230. Similarly, the panel in Australia – Applies  stated that 
"Article 5.2 is inextricably linked to Article 5.1" and that Article 5.2 should be "considered when looking at 
Article 5.1". (Panel Report, Australia – Apples , para. 7.211) 
875 Panel Report, Japan – Apples , para. 8.232. 
876 Panel Report, Australia – Apples , para. 7.211 (citing Panel Report in Japan – Apples , para. 8.230). 
See also Panel Report, US – Poultry  (China) , para. 7.172 WT/DS447/R  
 
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  7.321.  As we begin our analysis, we bear in mind that the Panel's role is not to conduct its own 
risk assessment based on scientific evidence gath ered by the Panel or submitted by the parties 
during the Panel proceedings.877 Similarly, the Panel will not impose its own scientific opinion on 
the United States.878 Our task is not to substitute our own judgement for that of the United States 
or determine whether the science relied upon was actually "correct".879 Instead, our task – 
pursuant to the clarification of the Appellate Body in US/Canada – Continued Suspension  – is to 
determine the following: (i) whether there is a risk assessment; (ii) if that risk assessment is 
"appropriate to the circumstances"; (iii) whether the science supports the conclusions in the risk 
assessment; and finally (iv) whether the importing Member's measures are based on that risk assessment.
880  
7.322.  Article 5.1 requires Members to base their measures on a risk assessment "appropriate to 
the circumstances". We understand that the first step of the analysis for determining whether the 
risk assessment is appropriate to the circumstance s is to decide which of the two types of risk 
assessment set forth in Annex A(4) should be conducted. Annex A(4) provides for two distinct 
types of risk assessment: (i) the evaluation of the likelihood of entry, establishment or spread of a 
pest or disease within the territory of an im porting Member according to the sanitary or 
phytosanitary measures which might be applied; and (ii) the evaluation of the potential for 
adverse effects on human or animal health arising from the presence of additives, contaminants, 
toxins, or disease-causing organisms in food, beverages or feedstuffs. While there is no explicit reference in Annex A(4) directing which types of me asures fit within which of the two types of risk 
assessment, concluding which is appropriate can be  deduced from the similarities in the texts of 
the subparagraphs of Annex A(1) and of Annex A(4). Moreover, in the past, panels examining 
measures taken pursuant to Annex A(1)(a) (such as the measures at issue in the present dispute) have stated that such measures must be based on the first type of risk assessment.
881 In Australia 
– Salmon,  the Appellate Body observed that the "likel ihood" type of risk assessment requires an 
analysis of the disease "according to the SPS measures which might be applied", and also requires an evaluation "of the associated potential biolog ical and economic consequences" of the entry, 
establishment or spread of the pest or disease.
882  
7.323.  Another element that should be considered when determining whether a risk assessment is 
"appropriate to the circumstances" is whether the requirement in Article 5.1 that Members "tak[e] 
into account risk assessment techniques developed by the relevant international organizations" 
has been adhered to.883 Additionally, whether the elements set forth in Articles 5.2 and 5.3884 were 
taken into account is also relevant to a determination of whether the risk assessment was "appropriate to the circumstances." The Panel is also mindful that the phrase "appropriate to the 
circumstances" provides some flexibility for Me mbers in the conduct of their risk assessments 
                                               
877 Panel Reports, EC – Hormones (Canada) , para. 8.104; EC – Hormones (US) , para. 8.101. 
878 Panel Report, Australia – Salmon , para. 8.41. See also Panel Report, Japan – Agricultural Products II , 
para. 8.32. 
879 Appellate Body Report, US/Canada – Continued Suspension , para. 590. 
880 In conducting this analysis, the Appellate Body has explained that the role of the Panel is to 
determine (a) whether the views upon which an SPS measure is based are from qualified and respected sources; (b) whether the reasoning articulated on the basis of scientific evidence is objective and coherent; (c) whether the particular conclusions drawn by the Memb er assessing the risk find  sufficient support in the 
scientific evidence relied upon; and (d) whether the results of the risk's assessment sufficiently warrant the SPS measure at issue. (Appellate Body Report, US/Canada – Continued Suspension , para. 591. See also 
Appellate Body Report, Australia – Apples , paras. 213–214) 
881 Appellate Body Report, Australia – Salmon , para. 120 and fns 67 and 69. 
882 Appellate Body Report, Australia – Salmon , para. 121 (emphasis omitted), and fn 69 to para. 123. 
883 We recall that the panel in Japan – Apples , in examining the obligation in 5.1, reasoned that the 
requirement to "take into account" risk assessment techniques developed by the relevant international 
organizations means that such techniques "should be considered relevant" for a Member's assessment, but 
that a "failure to respect every aspe ct" thereof "would not necessarily, per se , signal" an inconsistency with the 
SPS Agreement. (Panel Report, Japan – Apples , para. 8.241 (emphasis original). See also Panel Report, EC – 
Approval and Marketing of Biotech Products , para. 7.1620) 
884 In Australia – Apples , the Appellate Body stated that "[w]hether a risk assessor has taken into 
account the available scientific evidence" must be "d etermined by assessing the relationship between the 
conclusions of the risk assessor and the relevant av ailable scientific evidence." (Appellate Body Report, 
Australia – Apples , para. 208) WT/DS447/R 
 
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  without absolving them of their duty to base their measures on a risk assessment.885 The Appellate 
Body has also recognized that the appropriate le vel of protection of the importing Member may 
affect the scope or method of the risk assessment.886 
7.324.  To the extent the Panel is satisfied that a risk assessment exists and is appropriate to the 
circumstances, the Panel should next turn to addressing whether the scientific information taken 
into account by the United States supports the conclusions in its risk assessment887 and whether 
the resulting measures are based on that risk assessment. To that end, we recall that the 
Appellate Body has clarified that a "rational or objective relationship"888 that "persists and is 
observable"889 must exist between an SPS measure and a risk assessment. We also recall our 
conclusion in section 7.4.2.3 that the reasoning of the Appellate Body in EC – Sardines, that "at a 
minimum … something cannot be considered a 'basis' for something else if the two are 
contradictory"890 is equally applicable in the SPS context. In that vein, a measure that contradicts 
the conclusions of a risk assessment cannot be said  to be based upon it. However, the Appellate 
Body has clarified that while Article 5.1 requires that SPS measures be based on a risk 
assessment, this does not mean that the SPS measures have to "conform to" the risk 
assessment.891  
7.325.  In light of the above, the Panel will assess whether a rational or objective relationship that 
persists and is observable exists between, on the one hand, the United States' imposition and 
maintenance of its prohibition on the importation of Argentinian fresh (frozen or chilled) bovine meat and Patagonian ruminant and swine products and, on the other hand, the document or documents it has put forward as its "risk assessment". 
7.326.  As noted above, we will conduct this analysis for the 2001 Regulations amending 
9 CFR 94.1 at the time of adoption as well as for the maintenance of the measures. 
7.5.3.3.1  9 CFR 94.1 as amended by the 200 1 Regulations at the time of adoption 
7.327.  Our first task is to ascertain whether a risk assessment exists as a basis for the adoption of 
the prohibition on imports from Argentina, first on an interim basis in June 2001 and then as a final rule in December 2001. 
7.328.  Argentina argues that the 2001 Regulations are not based on a risk assessment primarily 
because they were adopted without the typical step  of the publication of a lengthy risk analysis 
document separate from the notice in the Federa l Register of the amendment of 9 CFR 94.1. We 
do not find this argument convincing. We recall the conclusion of the panel in Japan – Apples 
(Article 21.5 – United States) that the relevant consideration is not limited to a procedural review 
as to whether the risk assessment followed a certain form, but is more importantly focused on whether the substance of the risk assessment, th at is the scientific evidence which is being 
evaluated, supports the conclusions of the risk assessment.
892 In this instance, the United States 
has identified the June 2001 Interim Rule as containing both the measure and the risk assessment. We see nothing in the Agreement that would prohibit them from doing this.
893 Therefore, we 
                                               
885 Appellate Body Report, EC – Hormones , para. 129 and Panel Report, Australia – Salmon , para. 8.57. 
See also Appellate Body Reports, Australia – Salmon , para. 130; US/Canada – Continued Suspension , 
para. 562 and Australia – Apples , paras. 237 and 244. 
886 Appellate Body Report, US/Canada – Continued Suspension , para. 685. 
887 The Appellate Body in EC – Hormones  explained that "Article 5.1, when  contextually read as it should 
be, in conjunction with and as informed by Article 2.2 of the SPS Agreement , requires that the results of the 
risk assessment must sufficiently wa rrant – that is to say, reasonably support – the SPS measure at stake." 
(Appellate Body Report, EC – Hormones , paras. 193-194)  
888 Appellate Body Report, Japan – Agricultural Products II , para. 84. See also Appellate Body Report, 
Japan – Apples , paras. 162 and 163. We also recall that, in the context of its analysis of Article 3.1 of the 
SPS Agreement the Appellate Body stated that "a thing is commonly said to be 'based on' another thing when the former 'stands' or is 'founded' or 'built' upon or  'is supported by' the latter ." (Appellate Body Report, EC – 
Hormones , paras. 163, 189 and 193) 
889 Appellate Body Report, EC – Hormones , para. 189. 
890 Appellate Body Report, EC – Sardines , para. 248. 
891 Appellate Body Report, US/Canada – Continued Suspension , para. 528. 
892 Panel Report, Japan – Apples (Article 21.5 – United States) , para. 8.129. 
893 Indeed, the Appellate Body explained in EC – Hormones that "Article 5.1 does not insist that a 
Member that adopts a sanitary measure shall have ca rried out its own risk asse ssment … [t]he SPS measure 
 WT/DS447/R  
 
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  accept that the United States has identified the June 2001 Interim Rule as the risk assessment 
underpinning its measure.  
7.329.  On this basis we move on to examine the remaining three questions -if that risk 
assessment is "appropriate to the circumstances"; whether the science supports the conclusions in 
the risk assessment; and finally whether the importing Member's measures are based on that risk 
assessment.  
7.330.  With respect to the June 2001 Interim Rule we note that the document refers to 
Argentina's notification to the OIE and the United States of the confirmation of outbreaks of FMD in 
a number of Argentine provinces in March 2001. APHIS also notes that SENASA was investigating the outbreaks, conducting extensive serologica l surveillance and implementing a vaccination 
programme to attempt to confine the virus. APHIS notes that it is taking the action to prohibit 
imports "because the existence of FMD has been confirmed" in Argentina. APHIS concludes that 
"imports of infected animal products pose the greatest risk of entry for FMD into the United States." APHIS also notes that with the exception of North and Central America (north of 
Panama), Australia and New Zealand, FMD is still present in many areas of the world.
894 
7.331.  We note that these conclusions are consistent with the OIE's guidance in the Terrestrial 
Code, namely that once a country experiences an outbreak its disease status is suspended and it is 
treated as infected. In the case of  FMD, it is reasonable to conclude that the science on the disease 
is sufficiently settled and that the SPS measures applicable to a country or region can be determined on the basis of the existence of an ou tbreak without the need for additional extensive 
studies. As the OIE explained at the meeting with the Panel, "as soon as it has an outbreak [a 
country] can no longer qualify for being free from FMD" and suspension of the status is 
immediate.
895 Argentina itself seems to have recognized this when it suspended exports on its own 
initiative. Moreover, the OIE clarified that given the epidemiology of FMD, a "cut and dry" 
assessment of whether the country meets the conditions that are specified in the Terrestrial Code 
is what is appropriate.896 In particular, the OIE noted that "we all know that the impact of FMD is 
high, we are not really in any doubt about that. It is a high impact disease, a trans- boundary 
animal disease, highly contagious and has serious impact."897 Therefore, the relevant issue in 
assessing the FMD "risk" in a particular country or region relates to "the probability of the virus being present in the animals and their meat."
898  
7.332.  Furthermore, the June 2001 Interim Rule reaches conclusions about the economic impact 
of the entry, establishment or spread of the di sease and the impact of the SPS measures that 
might be applied. In particular, APHIS notes that after an outbreak of FMD "[p]roduction losses are 
substantial, and costs to eradicate the disease are high." APHIS concludes that "[a] single 
outbreak of FMD in the United States has the potential to close our major livestock export markets 
overnight. During the eradication process, most exports of meat, animals, and animal byproducts 
would be curtailed." APHIS also notes that if an outbreak were not immediately recognized 
"eradication could take years." APHIS contrasts the potential loss of export markets with the 
available data on total earnings from exports of live cattle, swine, beef and veal, pork and dairy 
products from the United States for the last year of available data (1999). APHIS also notes the limited market share of Argentine beef products in  the United States – 1.7 per cent of total beef 
imports and that the amount of imports had been declining. APHIS concludes that the prohibition 
will have little to no effect on supply or consumer prices.
899 
7.333.  The Panel finds that the June 2001 Interim Rule contains references to the standard 
scientific understanding of FMD as it was known at the time. It also contains information on the 
situation on the ground in Argentina as well as examines the economic impact of the measures 
                                                                                                                                               
might well find its objective justification in a risk  assessment carried out by  another Member, or an 
international organization." (Appellate Body Report, EC – Hormones , para. 190, followed by Panel Report, EC – 
Approval and Marketing of Biotech Products , para. 7.3024) 
894 2001 Interim Rule on Argentina, (Exhibit ARG-29). 
895 Transcript of the meeting, para. 1.16; see also Ibid.  para. 1.110. 
896 Transcript of the meeting, para. 1.107 (comparing  the evaluation for FMD to one for BSE that 
requires more of an analysis of the e ffectiveness of certain control measures). 
897 Transcript of the meeting, para. 1.128. 
898 Transcript of the meeting, para. 1.128. 
899 2001 Interim Rule on Argentina, (Exhibit ARG-29). WT/DS447/R 
 
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  that might be applied consistently with Annex A(4) and Article 5.3. Therefore, we conclude that 
the risk assessment contained in the June 2001 Interim Rule is "appropriate to the circumstances" within the meaning of Article 5.1.  
7.334.  We also find that the undisputed science supports the conclusion in the June 2001 Interim 
Rule that Argentine products posed a significant risk for introduction of FMD into the 
United States.
900 While the Terrestrial Code provides for continued trade in some products even 
after an outbreak, we recall our conclusion that the United States has a higher appropriate level of 
protection than that embodied in the Terrestrial Code. Therefore, we find that the 2001 
amendments to 9 CFR 94.1 to rescind Argentina's authorization to import and to prohibit the importation of animal, meat and animal products from Argentina was rationally related to the science and that the measure was based on the risk assessment. 
7.335.  Therefore, we find that, at the time they were adopted, the 2001 Regulations and the 
subsequent amendment to 9 CFR 94.1 were base d on a risk assessment "appropriate to the 
circumstances" in keeping with the obligatio ns of Article 5.1 of the SPS Agreement. 
7.5.3.3.2  The maintenance of the measures 
7.336.  Argentina argues that, even if a risk assessment had in fact been conducted for Argentina 
as a whole at the time of the imposition of the original prohibition, such risk assessment would 
bear no "rational or objective relationship" with the series of favourable changes in circumstances 
in Argentina. Furthermore, Argentina points to th e long periods without an outbreak in Patagonia 
(1976 for Patagonia South and 1994 for Patagonia North B) as well as APHIS' favourable risk assessment published in 2005 with respect to Patagonia South.
 901  
7.337.  The United States for its part does not seek to rebut Argentina's factual allegations, but 
rather argues that its prohibition "continue[s] to be justified by the assessment made at the time" of its adoption while APHIS "is in the process of reviewing and evaluating" Argentina's application 
for imports.
902 The United States also argues with respect to the risk assessment on the Patagonia 
region that it could not be completed because of the changing nature of Argentina's application and regulatory practice with respect to that region.
903  
7.338.  We recall that the Appellate Body has clarif ied that Articles 2.2 and 5.1 must constantly be 
read together904, including the obligation that measures not be maintained without sufficient 
scientific evidence. In light of that guidance, the Panel in Japan – Apples explained that: 
One must not lose sight of the purpose of a risk assessment, which is to serve as a 
basis for regulatory actions. If the scien tific evidence evolves, this may be an 
indication that the risk assessment should be reviewed or a new assessment undertaken. It would be also legally inconsistent to require, on the one hand, that 
phytosanitary measures not be maintained without sufficient scientific evidence 
pursuant to Article 2.2 while, on the other hand, accepting that risk assessments not be renewed in the face of new scientific evidence.
905  
7.339.  The obligation to "maintain" a measure based on scientific evidence has a continuing 
dimension. Indeed, the panel in EC – Approval and Marketing of Biotech Products  stated that, 
since "relevant circumstances may change over time", it follows that "at any given time, 
SPS measures must be based on an assessment of risks which is appropriate to the circumstances 
existing at that time".906 In other words, the ordinary variations in the underlying factual 
circumstances are to be taken into account by continuously updating the risk assessment and 
                                               
900 We note that at the time the measures were adopted the United States did not treat Patagonia as a 
separate region from the rest of Argentina and Argentina had not requested such treatment.  
901 Argentina's first written submission, para. 463. 
902 United States' first written submission, para. 257. 
903 United States' first written submission, para. 263. 
904 Appellate Body Report, EC – Hormones , para. 180. 
905 Panel Report, Japan – Apples , para. 7.12. 
906 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.3031; see also Panel Report, 
Japan – Agricultural Products II , paras. 8.28-8.31. WT/DS447/R  
 
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  reviewing the measure based thereon accordingly.907 The panel in EC – Approval and Marketing of 
Biotech Products reasoned that when the complainant is challenging the maintenance of a 
particular measure the relevant question becomes "whether on the date of establishment of this 
Panel, each [SPS] measure was based on an as sessment of risks which was appropriate to the 
circumstances existing at that time."908  
7.340.  The United States admits that it was provided with significant new scientific information 
about the sanitary situation in Argentina and the likelihood of the FMD virus being present in 
Patagonia and Northern Argentina in 2002 and in subsequent years until it ceased asking for new 
information in 2009. Therefore, as discussed by the panel in Japan – Apples, the scientific 
information indicates that the risk assessment fr om 2001 should be reviewed or a new assessment 
undertaken. The fact that the United States contends that APHIS is and has been in the process of 
conducting a new risk assessment indicates that it agrees.  
7.341.  According to the United States, if a Member is presented with new scientific evidence that 
justifies the updating of the risk assessment or the undertaking of a new procedure, the measure 
falls within the scope of Article 5.7 while that review  is taking place. The United States argues that 
its interpretation presents the only coherent approach to the SPS Agreement because otherwise an importing Member would be instantly in breach of Articles 2.2 and 5.1 any time new scientific 
information was put forward requiring a new risk assessment unless that measure falls within the 
scope of Article 5.7.  
7.342.  We recall that in the present case we have found that Article 5.7 is not applicable. 
However, we do not consider that it necessarily follows that there is an automatic and immediate 
breach of Article 2.2 and 5.1. In this regard, we ag ree with the United States that this would be an 
illogical reading of Articles 2.2, 5.1, 5.2, and 5.3. We note that the text of Article 5.1 states that what is required is a risk assessment that is "appropriate to the circumstances". We recall the 
guidance of the Appellate Body that "WTO rules are not so rigid or so inflexible as not to leave 
room for reasoned judgements in confronting the endless and ever-changing ebb and flow of real 
facts in real cases in the real world."
909 In our view, the language "appropriate to the 
circumstances" provides the flexibility referred to  by the Appellate Body. Furthermore, we find 
context for our interpretation in Article 8 and Annex C(1)(a). In particular, we recall our understanding in paragraph 7.68 above that Article 8 and Annex C(1) have a broad scope of application
910 and the guidance of the Appellate Body that the time taken to conduct a risk 
assessment could be challenged under Article 8 and Annex C(1).911 Thus, a finding of whether a 
measure is maintained based on a risk assessment pursuant to Article 5.1 could be informed by whether the risk assessment procedure had been undertaken and completed without undue delay.  
7.343.   In light of the above, we consider that a Member is not immediately in breach of the 
obligations in Articles 2.2 and 5.1 to maintain  a measure based on a risk assessment when new 
scientific information arises that requires a revision or updating of the risk assessment that the 
measure was based on at the time of adoption. In such a situation, an importing Member enjoys a 
certain reasonable margin of time to conduct the new analysis.  
7.344.  In the present case, we have determined that the United States had scientific information 
that warranted either a review of the pre-existing risk assessment or the conduct of a new one. 
                                               
907 Indeed, the panel in EC – Approval and Marketing of Biotech Products did recognize that a measure 
might be "maintained" on a different basis from the one originally imposed and therefore the appropriate point 
of analysis would be the risk assessment currently bein g relied upon. Therefore, that panel concluded that, for 
the purposes of the dispute, it woul d examine any risk assessment existing  prior to the establishment of the 
panel for conformity with Ar ticle 5.1. (Panel Report, EC – Approval and Marketing of Biotech Products , 
para. 7.3034) 
908 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.3034. 
909 Appellate Body Report, Japan – Alcoholic Beverages II , p. 34, DSR 1996:I, p. 97 at 122-123. 
910 Appellate Body Report, Australia – Apples , para. 438; see also Panel Report, US – Poultry (China) , 
paras. 7.370-7.378. 
911 Appellate Body Report, Australia – Apples , para. 441. The United Stat es acknowledges that, in 
certain circumstances, risk assessments could constitute a procedure covered by Annex C(1)(a). (See United States' response to Panel question No. 58 following the first substantive meeting) The United States, however, contends that risk assessments aimed at recogniz ing territories as disease-fr ee do not fall within the 
scope of such a provision. In pa ras. 7.69-7.70 above, we disagreed with the United States' argument. WT/DS447/R 
 
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  While we have determined that the United States' measures do not fall within the scope of 
Article 5.7, we have also found that the United States does enjoy a certain reasonable margin of time to review the pre-existing risk assessment or conduct a new one. However, we also found in paragraphs 7.145-7.172, that the delays incurre d in the reviews of Argentina's applications 
pursuant to 9 CFR 92.2 were undue within the mean ing of Annex C(1)(a). Therefore, even though 
the United States was still in the process of conducting its risk assessment as of the date of establishment of the Panel, this cannot excuse failure to comply with the obligation in 
Article 5.1.
912  
7.345.  In light of the scientific information av ailable to the United States on the sanitary 
conditions in Northern Argentina and Patagonia, which meant that the 2001 risk assessment was no longer sufficient to maintain the measures and the undue delay in APHIS' conclusion of the risk 
assessment, we find that the United States is maintaining the measures on fresh (chilled or frozen) 
beef from Northern Argentina and on animals, meat and animal products from Patagonia without basing them on a risk assessment. Therefore, the United States' measures are inconsistent with 
Article 5.1 of the SPS Agreement because they are maintained without being based on a risk 
assessment appropriate to the circumstances.  
7.346.  With respect to Argentina's claims under Article 5.2, we recall that Article 5.2 informs the 
requirements for a risk assessment under Article 5.1. Having concluded that the United States' 
measures are maintained without being based on a risk assessment, there is no basis to make any findings with respect to whether the United States could have taken into account in the assessment of the risks the factors set out in Article 5.2.  
7.5.3.3.3  Conclusion 
7.347.  The Panel finds that the June 2001 Interim Rule is a risk assessment "appropriate to the 
circumstances" within the meaning of Articles 5.1, 5.2, 5.3 and Annex A(4). The Panel also finds 
that at the time the measures were adopted in 2001 they were based on that risk assessment. 
With respect to the maintenance  of the measures, the Panel finds that the scientific evidence 
required a review or new risk assessment. As of the date of establishment of the Panel the 
United States had not completed that new risk assessment but was nevertheless maintaining the 
measures. Recalling that we found the United States to have acted inconsistently with Article 8 and Annex C(1)(a) in the conduct of the risk assessment in that the process incurred undue 
delays, we also conclude that the measures are not maintained based on a risk assessment as 
required by Article 5.1 of the SPS Agreement. 
7.5.4  Article 2.2 of the SPS Agreement 7.5.4.1  Main arguments of the parties 
7.5.4.1.1  Argentina 
7.348.  In Argentina's opinion, "where an SPS measure is not based on a risk assessment as 
required in Articles 5.1 and 5.2 of the SPS Agreement, this measure is presumed not to be based 
on scientific principles and to be maintained without sufficient scientific evidence."
913 Accordingly, 
Argentina asserts that the United States' violation of Articles 5.1 and 5.2 of the SPS Agreement entails an automatic violation of Article 2.2.
914 Alternatively, Argentina details its claim that the 
application of the United States' measures is not based on scientific principles and they are 
maintained without sufficient scientific evidence.  
                                               
912 As noted above, the findings under Article 8 and Annex C(1)(a) inform our finding under Article 5.1. 
We reached this conclusion based on the particular circumstances of this case. Our conclusion should not be interpreted to mean that every inconsistency with Anne x C(1)(a) would automatically imply a failure to comply 
with the obligation to maintain a measure based on a risk assessment in Article 5.1. 
913 Argentina's first written submission, para. 472 (citing Panel Report, US – Poultry (China) , 
para. 7.201). 
914 Argentina's first written submission, paras. 258-259 (referring to Appellate Body Report, Australia – 
Apples, para. 262, in turn referring to Appellate Body Report, Australia – Salmon , para. 138). WT/DS447/R  
 
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  7.349.  In particular, with regard to the United States' prohibition on imports of fresh (chilled or 
frozen) beef originating in the Argentine territory as a whole, Argentina refers again to the favourable risk assessments conducted in 1997 and 2000 and the statements of the United States' delegate to the SPS Committee in 2010 concerning the existence of a "recent favourable risk 
assessment."
915  
7.350.  Argentina states that the maintenance of such a prohibition is not based on a valid risk 
assessment.916 It observes that the two publicly availa ble risk assessments conducted with respect 
to Argentina in 1997 and 2000 both permitted imports of fresh (chilled or frozen) meat from 
Argentina under certain conditions.917 While recognizing that the 1997 and 2000 risk assessments 
were superseded by FMD outbreaks in 2001, Argentina notes that no risk assessment has been issued since 2001, when APHIS withdrew approv al to import Argentine fresh beef from the 
Argentine territory as a whole.
918 Finally, Argentina notes that certain statements made by the 
United States' delegate to the SPS Committee in 2011 suggested that "a recent favourable risk assessment might have been conducted (or at least information was collected and analyzed)", but 
not been made publicly available.
919 Further, Argentina claims that, while the United States 
"provided a roadmap of the scientific principles it purportedly relies on" in the policy implementation rulemaking of October 1997, it "has not articulated what scientific principles" 
underlie the "prohibition" as applied to Argentine fresh beef.
920  
7.351.  Argentina cites to the Appellate Body report in Japan – Agricultural Products II  and states 
that Article 2.2 of the SPS Agreement requires that  there be a "rational or objective" relationship 
between an SPS measure and the underlying scientific evidence.921 As for the meaning of 
"sufficient" as referred to evidence, Argentina posits  that "'[s]ufficiency requires the existence of a 
sufficient or adequate relationship" between an SPS measure and the scientific evidence.922 In its 
opinion, in order for a measure to be maintained with sufficient evidence, "there must be at least 
some  evidence (derived from the risk assessments)".923 Because the United States has maintained 
the "prohibition" on imports of Argentine fresh beef "without having a risk assessment at all", its measure is inconsistent with Article 2.2.
924 
7.352.  In light of the above, Argentina assert s that the 2001 Regulations repealing 9 CFR 94.21 
and hence withdrawing authorization of imports of  fresh (chilled or frozen) beef from Argentina 
are, by implication, inconsistent with Article 2.2.925 
7.353.  As for the United States' prohibition on imports of ruminants, swine and products thereof 
from Patagonia, Argentina refers to APHIS' fa vourable 2005 risk assessment for Patagonia South 
and the 2007 proposed rulemaking926 as well as the United States' suggestion that "there is a 
favorable risk assessment for Patagonia North B."927 Accordingly, Argentina contends that the 
United States' violation of Articles 5.1 and 5.2 with respect to Patagonia also entails an 
inconsistency with Article 2.2. 
7.5.4.1.2  United States 
7.354.  The United States argues that Argentina has not met its burden of establishing a prima 
facie case that the United States' measures prohibiting imports of Argentine fresh (chilled or 
                                               
915 Argentina's first written submission, para. 264. 
916 Argentina's first written submission, para. 263. 
917 Argentina's first written submission, para. 263. 
918 Argentina's first written submission, para. 264. 
919 Argentina's first written submission, para. 264. 
920 Argentina's first written submission, para. 272. 
921 Argentina's first written submission, para. 274 (citing Appellate Body Report, Japan – Agricultural 
Products II , para. 84). 
922 Argentina's first written submission, para. 275 (citing Appellate Body Report, Japan – Agricultural 
Products II , para. 73). 
923 Argentina's first written submission, para. 276 (emphasis original). 
924 Argentina's first written submission, para. 277. 
925 Argentina's first written submission, para. 289. 
926 Argentina's first written submission, para. 473. 
927 Argentina's first written submission, para. 473. WT/DS447/R 
 
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  frozen) beef are inconsistent with Article 2.2 of the SPS Agreement.928 In particular, Argentina 
"has presented no argument or evidence different" from that submitted under Articles 5.7, 5.1, and 5.2.
929 
7.355.  As to the requirement under Article 2.2 that an SPS measure be based and maintained on 
scientific principles, the United States maintain s that the 2001 Regulations and the requirement 
that Argentina re-apply for authorization for importation bear a "rational [and] objective relationship" to the scientific evidence. Firstly, all parties "agree with the OIE that FMD is an 
extremely dangerous, contagious and debilitating animal disease".
930 Secondly, the OIE Terrestrial 
Code provides that before trade in animals or their products may occur, "an importing country 
must be satisfied that its animal health status will be appropriately protected".931 Accordingly, 
maintaining the 2001 Regulations while conducting th e risk assessment on Argentine fresh beef "is 
based on scientific principles related to the transmissibility and consequences" of FMD.932 
7.356.  As to the requirement under Article 2.2 that an SPS measure not be maintained without 
sufficient scientific evidence, the United States refers back to its position that the measures are 
justified under Article 5.7 and thus Article 2.2 is inapplicable.933  
7.357.  With regard to the aspect of the United States' measures prohibiting imports of ruminants, 
swine and products thereof from Patagonia, the Unit ed States adds that Argentina has "altered the 
sanitary conditions in Patagonia South and Patagonia North B", thereby requiring APHIS to 
"reassess the situation"934 prior to completing its rulemaking process. In particular, the 2007 
proposed regulation was issued with respect to  Patagonia South based on information from 2003 
but, since 2008, Argentina started altering the sanitary conditions between that area and 
Patagonia North B. The United States argues that, because of the "many changing variables" with 
respect to Patagonia South and Patagonia North B, APHIS measures "were based and maintained on science".
935 
7.5.4.2  Main arguments of the third parties 
7.5.4.2.1  China 7.358.  China recalls that when an SPS measure is not based on a risk assessment as required 
under Article 5.1 of the SPS Agreement, that measure "can be presumed to be, more generally, 
neither based on scientific principles nor maintained with sufficient scientific evidence within the meaning of Article 2.2".
936 Further, China recalls that, according to the panel in EC – Approval and 
Marketing of Biotech Products , Article 2.2 requires that: (a) SPS measures be based on scientific 
principles; and (b) SPS measures not be maintained without sufficient scientific evidence.937 
7.5.4.3  Analysis by the Panel 7.359.  The Panel needs to determine whether the United States' measures are based on scientific 
principles and are not maintained without sufficient scientific evidence as required by Article 2.2 of 
the SPS Agreement. Argentina claims that a finding that Article 5.1 or 5.2 has been breached also entails an automatic violation of Article 2.2  of  the SPS Agreement. The United States disagrees 
and asserts that Argentina has not made a prima facie  case that the United States' measures are 
inconsistent with Article 2.2. 
                                               
928 United States' first written submission, para. 271. 
929 United States' first written submission, para. 274. 
930 United States' first written submission, para. 274. 
931 United States' first written submission, para. 274. 
932 United States' first written submission, para. 274. 
933 United States' first written submission, para. 275. 
934 United States' first written submission, para. 278. 
935 United States' first written submission, para. 280. 
936 China's third-party submission, para. 33 (referring to Appellate Body Report, Australia – Salmon , 
para. 138; and Panel Report, US – Poultry (China) , para. 7.201), and para. 38. 
937 China's third-party submission, para. 37 (referring to Panel Report, EC – Approval and Marketing of 
Biotech Products , para. 7.1424). No other third party argued specifically on this point. WT/DS447/R  
 
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  7.360.  As noted in paragraph 7.264 above, Articles 2.2 and 5.1 should constantly be read 
together938, because Article 5.1 constitutes "a specific application of the basic obligations contained 
in Article 2.2"939 of the SPS Agreement. The same relationship exists between Articles 2.2 
and 5.2.940 Furthermore, Article 5.7 serves as a "q ualified exemption" to the obligation in 
Article 2.2.941 
7.361.  Given the relationship between the specific  sub-paragraphs of Article 5 and the obligations 
in Article 2.2, the Appellate Body and prior panels have accepted that in the event an SPS measure 
is not based on a risk assessment as required in Articles 5.1 and 5.2 this measure can be 
presumed, more generally, not to be based on scientific principles or to be maintained without sufficient scientific evidence.
942  
7.362.  We have found that the United States' measures are not maintained based on a risk 
assessment and are inconsistent with Article 5. 1 of the SPS Agreement and are not within the 
scope of the qualified exemption in Article 5.7 of  the SPS Agreement. Therefore, we further find 
that the United States' measures are inconsistent with Article 2.2 of the SPS Agreement.  
7.6  Appropriate level of protection 
7.6.1  Relevant legal provisions  7.363.  Annex A(5) of the SPS Agreement defines the appropriate level of sanitary or 
phytosanitary protection (ALOP) as:  
The level of protection deemed appropriate by the Member establishing a sanitary or 
phytosanitary measure to protect human, animal or plant life or health within its territory. 
NOTE: Many Members otherwise refer to this concept as the "acceptable level of risk".  
7.364.  Argentina makes claims with respect to two of the three provisions in Article 5 of the 
SPS Agreement that relate to the ALOP: Articles 5.4 and 5.6.
943  
7.365.  Article 5.4 relates to the determination of the ALOP and states that: 
Members should, when determining the appropriate level of sanitary or phytosanitary 
protection, take into account the objective of minimizing negative trade effects. 
7.366.  Article 5.6 relates to the relationship between the measures applied and the achievement 
of the ALOP. In particular, Article 5.6 provides that: 
Without prejudice to paragraph 2 of Article 3, 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 achiev e their appropriate level of sanitary or 
phytosanitary protection, taking into account technical and economic feasibility. 
                                               
938 Appellate Body Report, EC – Hormones , para. 180. 
939 Appellate Body Reports, EC – Hormones , para. 180; and Australia – Apples , para. 209. 
940 Appellate Body Report, Australia – Apples , para. 339. 
941 Appellate Body Report, Japan – Agricultural Products II , para. 80; see also Panel Report, Japan – 
Apples , paras. 8.210-8.212 (referring to Article 5.7 as a "defence"). See also, the Appellate Body conclusion in 
US/Canada – Continued Suspension , that Article 2.2 excludes from its scope situations where relevant scientific 
evidence is insufficient and that the applicable provision is Arti cle 5.7. Appellate Body Report, US/Canada – 
Continued Suspension , para. 674. 
942 Appellate Body Report, Australia – Salmon , para. 138; Panel Report, Australia – Salmon (Article 21.5 
– Canada) , paras. 7.85 and 7.161; Panel Report, EC – Approval and Marketing of Biotech Products , 
para. 7.3399; India – Agricultural Products , para. 7.332. 
943 Argentina does not make a claim under Article 5.5 which relates to the objective of achieving 
consistency in the application of the concept of the ALOP. WT/DS447/R 
 
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  Footnote 3  For purposes of paragraph 6 of Article 5, 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.  
7.367.  The Appellate Body has found that the obligat ion in Article 5.6 is closely related to the first 
obligation set forth in Article 2.2
944 that "Members shall ensure that any sanitary or phytosanitary 
measure is applied only to the extent necessary to protect human, animal or plant life or health".  
7.368.  Argentina has made claims under both Articles 5.4 and 5.6 as well as under the first 
obligation in Article 2.2. An analysis of all these claims requires an identification of the level of protection that the United States has set as appropriate. With respect to a claim under Article 5.6, 
the Appellate Body has reasoned that when analysin g a claim under Article 5.6, a panel first has to 
identify the level of protection that the importing Member has set as appropriate.
945 Furthermore, 
the panel in EC – Approval and Marketing of Biotech Products explained that Articles 2.2 and 5.6 
are to be read together and that Article 5.6 is a specific application of the first obligation in 
Article 2.2.946 Therefore, an understanding of the ALOP is also required for an analysis of 
Argentina's claim under Article 2.2. Finally, it woul d be difficult to make a finding as to what the 
United States took into account in determining its ALOP if we do not know what the United States' 
ALOP is. 
7.369.  Therefore, before turning to the substance of Argentina's claims, the Panel will first identify 
the United States' ALOP. Subsequently, we will  examine whether Argentina has established the 
elements of each of its claims under Articles 5.4 and 5.6 and the first obligation in Article 2.2. 
7.6.2  The United States' appropriate level of protection for foot-and-mouth disease 
7.6.2.1  Main arguments of the parties 
7.6.2.1.1  Argentina 
7.370.  Argentina argues that the United States' ALOP is difficult to determine. Argentina cites an 
APHIS policy document that notes the purpose of the authorization process is "to determine on a 
case-by-case basis what import conditions will reduce the risk associated with importations from a 
particular region to a negligible level."947 Argentina argues that APHIS assigns a number of 
different risk levels to products or country/region and that the import measures associated with the different risk levels indicate an incoherent application of an ALOP. In particular, Argentina 
notes: 
In the June 1997 rulemaking allowing imports from Argentina, APHIS referred to low 
risk with the possibility to achieve a "negligible level of risk;"
948 the 2005 risk 
assessment by APHIS regarding Patagonia South stated that the risk level was 
                                               
944 Appellate Body Report, Australia  – Apples , para. 339. 
945 Appellate Body Report, Australia – Apples , para. 344 (citing  Appellate Body Report, Australia – 
Salmon , para. 208). 
946 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1433. In Australia – Apples , 
the Appellate Body noted that the relationship between Ar ticles 2.2 and 5.6 had not be en squarely decided, but 
noted that its ruling in Australia – Salmon  suggested such a relationship. In particular, the Appellate Body 
recalled: 
After pointing to the phrase 'only to the extent necessary' in Article 2.2 of the SPS Agreement , 
the Appellate Body observed, in a footnote in its report in Australia – Salmon , that: 
[t]he establishment or maintenance of an SPS measure which implies or reflects a higher level of protection than the appropriate level of protection determined by an importing Member, could constitute a violation of the necessity requirement of Article 2.2. (Appellate Body Report, Australia – Salmon , footnote 166 to para. 213)  
(Appellate Body Report, Australia – Apples , fn 504 to para. 340) 
947 Argentina's first written submission, para. 295 (citing Importation of Animals and Animal Products , 
62 Fed. Reg. 56000 (USDA/APHIS October 28, 1997) (Final Rule), (Exhibit ARG-15)). 
948 (footnote original) See the June 26, 1997 Final rulemaking at 62 FR 34385 at 34387 and 34389. 
(Exhibit ARG-26) WT/DS447/R  
 
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  "low."949 And yet low risk in 1997 meant imports were allowed, while low risk in 2005 
meant a continued ban even as applied to the FMD-free region of Patagonia. Moreover, the 2003 rulemaking for Uruguay did not mention a level of risk, while a 2002 risk analysis performed on Uruguay suggested a "low" risk rating.
950 The 
rulemaking regarding the Brazilian State of Santa Catarina considered the level risk to 
be "very low" and therefore acceptable for imports to commence,951 even though 
"very low" is not one of the levels identified in the rulemaking.952 
7.371.  Argentina disputes the United States' contention that its ALOP for FMD is expressed in 
7 USC 8303. In particular, Argentina argues that the section does not express an ALOP, but rather grants the Secretary of Agriculture unfettered di scretion to adopt whatever measures he deems 
necessary.
953  
7.372.  Furthermore, Argentina argues that regardless of whether the United States has a 
determined ALOP for FMD, it acts as if there is a unique ALOP for Argentine products which is 
zero.954 However, in the context of its arguments re lating to Article 5.6 of the SPS Agreement, 
Argentina argues that the United States' ALOP for fresh (chilled or frozen) beef can be derived 
from the measures that apply to Uruguay as well as the expected issuance of a proposed rule permitting imports from 13 Brazilian states that are FMD-free where vaccination is practised.
955 
Similarly, for its claim relating to all ruminant and swine products from Patagonia, Argentina 
derives the United States' ALOP by reference to the 2005 risk assessment of Patagonia and the treatment of the Brazilian state of Santa Catarina.
956  
7.6.2.1.2  United States 
7.373.  In its first written submission the United States argues that the goal of the authorization 
process set forth in 9 CFR 92.2 is "to prevent the introduction into or dissemination within the United States of FMD."
957 I n  r e s p o n s e  t o  a  s p e c i f i c  q u e s t i o n  a s  t o  i t s  A L O P  f o r  F M D ,  t h e  
United States replied that the ALOP of the United States is set out in the Animal Health Protection 
Act ("AHPA") in 7 USC 8303, which is the main statutory basis for 9 CFR 92 and 9 CFR 94.958  
7.374.  In particular, 7 USC 8303(a), provides:  
[T]he Secretary may prohibit or restrict - (1) the importation or entry of any animal, 
article, or means of conveyance, or use of any means of conveyance or facility, if the 
Secretary determines that the prohibition or restriction is necessary to prevent the introduction into or dissemination within the United States of any pest or disease of 
livestock … .
959 
7.375.  The United States argues that this ALOP requires that "[i]mports of FMD-susceptible 
animals and animal products into the United States must be safe."960 
7.376.  The United States maintains that APHIS' evaluation of a country's application is to 
determine "whether, and under what import conditions, if any, specified products from a particular region may be safely exported to the United States without introducing into or disseminating 
within the United States the FMD virus."
961 The United States also argues that its ALOP is higher 
                                               
949 (footnote original) Risk Assessment fo r Patagonia at pp 76-77. (Exhibit ARG-9) 
950 (footnote original) 68 Fed. Reg. 31940, May 29, 2003. 
951 (footnote original) 75 Fed. Reg. 69851, November 16, 2010; see 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, USDA APHIS Report, August 16, 2010. 
952 Argentina's first written submission, para. 222. 
953 Argentina's second written submission, paras. 153-154. 
954 Argentina's first written submission, paras. 223, 299. 
955 Argentina's first written submission, paras. 312-313. 
956 Argentina's first written submission, paras. 501-503.  
957 United States' first written submission, para. 120. 
958 United States' response to Panel question No. 42 after th e first substantive meeting. 
959 7 USC § 8303(a), (Exhibit USA-75). 
960 United States' response to Panel question No. 42 after th e first substantive meeting. 
961 United States' first written submission, para. 125 (citing 7 USC § 8303(a), (Exhibit USA-75)).  WT/DS447/R 
 
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  than that achieved by applying the OIE standards.  In particular, the United States focuses on the 
differences in its treatment of imports from countries that practice vaccination. In the United States' view, a country that vaccinates for FMD is not free of the disease.
 962 According to 
the United States, importation of beef from areas that are designated as FMD-free where 
vaccination is practised could result in importation of beef derived from infected animals, which 
"would not satisfy the United States' standard of safe importation."963 Therefore, the United States 
contends that the OIE guidelines for importation of products from countries or zones that are 
FMD-free where vaccination is practised do not meet its ALOP. 964 The United States also maintains 
that it is not seeking to achieve a zero ALOP—indeed, the United States argued in its comments on Dr Bonbon's answers that zero risk is not achievable.
965  
7.6.2.2  Analysis by the Panel 
7.377.  The Appellate Body explained in Australia – Salmon that there is an implicit obligation in 
the SPS Agreement for Members to determine their appropriate level of protection.966 The 
Appellate Body has confirmed that the ALOP need  not be determined in quantitative terms. 
However, the level of protection cannot be determined "with such vagueness or equivocation that 
the application of the relevant provisions of the SPS Agreement  … becomes impossible".967  
7.378.  The United States maintains that its ALOP for all animal diseases, including FMD, is set 
forth in 7 USC 8303(a). We disagree with Argentina that Section 8303(a) does not express an 
ALOP, but is merely a delegation of authority to th e Secretary of Agriculture. It is true that the 
provision provides the Secretary with the discretion to take all necessary measures, but only those measures necessary to  prevent the introduction into or dissemination within the United States of 
any pest or disease of livestock. It is this portion of Section 8303(a) that expresses the 
United States' ALOP for animal pests or diseases. We also note that the regulations in 9 CFR 94 and 9 CFR 92.2 specifically derive APHIS' authority from, among other sources, this statutory 
provision. We have no reason to disagree with the United States' assertion that this is its ALOP for 
animal pests and diseases, including FMD.  
7.379.  The panel in India – Agricultural Products recently held that a similarly expressed ALOP by 
India – the prevention of ingress of the disease in question – did not satisfy the definition in 
Annex (5), because it did not express a "level".
968 While acknowledging that a Member's ALOP 
need not be expressed in quantitative terms, that panel concluded that an ALOP will "express a certain threshold that denotes the position of the relevant Member in relation to the intensity, 
extent, or relative amount of protection or risk that the Member deems to be tolerable or 
suitable."
969  
7.380.  We recall that the Appellate Body in Australia – Salmon  reasoned that the ALOP "is an 
objective, and that the SPS measure is an instrument chosen to attain or implement that 
objective."970 As expressions of a general objective, ALOPs are often set forth in a qualitative and 
generic manner. The ALOP put forward by the United  States in this dispute is formulated in a 
similar qualitative manner to that accepted by the panel in US – Poultry (China).971 Furthermore, 
the OIE itself, an acknowledged expert in determining appropriate mitigating measures to respond to animal health risks, does not refer to the ALOP  achieved by the measures in the Terrestrial Code 
                                               
962 United States' first written submission, para.299. 
963 United States' first written submission, para.299.  
964 United States' first written submission, para.299. 
965 United States' comments on the expert s' responses to Panel question No. 12. 
966 Appellate Body Report, Australia – Salmon , para. 206. 
967 Appellate Body Report, Australia – Salmon , para. 203. 
968 Panel Report, India – Agricultural Products , para. 7.565.  
969 Panel Report, India – Agricultural Products , para. 7.562. 
970 Appellate Body Report, Australia – Salmon , para. 200. 
971 In that case the United States' ALOP for poultry products was accepted to be "healthful, wholesome, 
fit for human food, not adulte rated, and contain no dye, chemical, pr eservative or ingredient which renders 
them unhealthful, un wholesome,  adulterated, or unfit for human food." See Panel Report, US – Poultry 
(China) , para. 7.242 (citing Poultry Products Inspection Act 21 USC 466). We also note that the ALOP was 
implemented in a similar way – an agen cy of the United States' Department of Agriculture (in that case the 
Food Safety Inspection Service) making specific de terminations about the admissibility of products from 
particular countri es or regions. WT/DS447/R  
 
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  in terms of specific levels of tolerance. Indeed , in response to a question from the Panel, the 
OIE explained the level of protection achieved by  the measures in Chapter 8.5 of the Terrestrial 
Code as follows: 
The measures in Chapter 8.5 provide for safe international trade in animals and 
derived products. As stated in Part A point 2 of the User's Guide to the Terrestrial 
Code: "The recommendations in each of the disease chapters … are designed to 
prevent the disease in question being introduced into the importing country (emphasis 
added), taking into account the nature of the commodity and the animal health status 
of the exporting country. Correctly applied, OIE recommendations provide for trade in animals and animal products to take place with an optimal level of animal health 
security  (emphasis added), based on the most up to date scientific information and 
available techniques." This applies to all pr oducts and all measures in Chapter 8.5 and 
in other disease chapters. No attempt is made to quantify or differentiate the levels of protection provided in the disease chapters or in the horizontal texts of the Terrestrial 
Code.
972 
7.381.  That being said, the Appellate Body has concluded that if a Member determines its 
appropriate level of protection with insufficient prec ision, then "the appropriate level of protection 
may be established by [the panel] on the basis of the level of protection reflected in the 
SPS measure actually applied."973 This is consistent with the recognition of prior panels that "any 
sanitary measure applied to a given situation inherently reflects and achieves a certain level of protection."
974 In light of the findings of the panel in India – Agricultural Products and to confirm 
the threshold of risk the United States is prepar ed to accept, we will examine the measures the 
United States applies with respect to FMD as well  as compare these to the Terrestrial Code, which 
the United States argues achieves a lower ALOP with respect to FMD and the particular products at 
issue in this dispute.  
7.382.  The United States does not provide for a complete import prohibition on all livestock or 
products thereof. The United States permits imports from countries or regions that have had 
outbreaks in the past. As Argentina observes, AP HIS permits imports from several countries or 
regions whose products it has determined present a "low" or lower ("very low" or "negligible") risk.
975 Indeed, the United States even permits imports from one country that vaccinates against 
FMD under certain protocols. However, the United States does not determine who may import 
based on the official recognitions of disease status of the OIE. The United States does not 
recognize the disease status of "FMD-free wher e vaccination is practised". Furthermore, as 
discussed in section 7.4 above, the protocols the United States applies to imports are not based on 
and are more stringent than those set forth in the Terrestrial Code. In particular, the United States 
places additional mitigating measures in 9 CF R 94.11 on regions that border regions that are 
FMD-infected or that import products from such regions. Similarly in 9 CFR 94.22 the 
United States imposes mitigating protocols on one country that it determines to be FMD-infected, 
but that vaccinates.976 Therefore, it would be reasonable to conclude that the qualitative ALOP 
expressed in 7 USC 8303(a) can be approximately descr ibed as being higher than that achieved by 
the Terrestrial Code and somewhere between "low risk" and "zero".  
7.383.   Argentina refers to the varying manners in  which APHIS has characterized the risk 
associated with products from particular countries or regions. According to Argentina, the fact that APHIS determined that particular countries or regions had different risk levels but nevertheless 
allowed them to import products demonstrates that the United States' ALOP is confused. While we 
acknowledge that there may be more precise ways to express an ALOP than the one before us in 
                                               
972 OIE's response to Panel question No. 8(a).  
973 Appellate Body Report, Australia – Salmon , para. 207. 
974 Panel Report, Australia – Salmon , para. 8.107; see also Panel Reports, EC – Hormones  (US), 
para. 8.168; EC – Hormones (Canada) , para. 8.171; and Australia – Apples , para. 7.975. 
975 We note that it is unremarkable that three countr ies or regions presenting these differing levels of 
risk would all be allowed to import while achieving the same ALOP – this is because if the risk presented is 
negligible , then permitting those shipments would achieve an ALOP of "low". The same is true with products 
that present a "very low" risk.  
976 The protocols in 94.11 and 94.22 will be discussed in  greater detail in respect of Argentina's claims 
under Article 5.6 as they are the alternative, less tr ade-restrictive measures th at Argentina proposes the 
United States could apply to its products. WT/DS447/R 
 
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  the current case, we do not agree that the fact that APHIS uses different terms to identify the 
levels of risk posed by different products from different countries or regions, in and of itself, 
necessarily means that the appropriate level of protection being achieved is not sufficiently articulated, or that it is different from that expressed in 7 USC 8303(a). Rather, one must look at 
the level of risk identified in combination with the measures applied to determine the level of 
protection achieved. The panel in Australia – Salmon  explained that: 
[T]he level of protection achieved by a specific sanitary measure will also depend on 
the degree of risk against which that measure is intended to protect. In that sense,… 
imposing the same sanitary measure for different situations does not necessarily result in the same level of protection. Indeed, in many situations (e.g. situations 
representing different risks) the same sanitary measure might result in different levels 
of protection. On the other hand, different sanitary measures for different situations 
might ensure the same level of protection. Indeed, one given situation might only 
represent a small risk for which a lenient sanitary measure will achieve a high level of 
protection, whereas another situation might pose very high risks requiring a very 
s t r i c t  a n d  d i f f e r e n t  s a n i t a r y  m e a s u r e  i n  o r d e r  t o  m e e t  t h a t  s a m e  h i g h  l e v e l  o f  
protection.977 (emphasis added) 
7.384.  The reasoning of the panel is also confir med with reference to the Terrestrial Code which 
sets forth different mitigating measures depending on the disease status of an exporting country or zone, but maintains that all measures achiev e the same level of protection: "safe trade".  
7.385.  Finally, we address Argentina's argument that regardless of any statutory United States' 
ALOP for animal pests and diseases, the United States applies its measures as if it has a zero ALOP 
for products from Argentina. We understand Ar gentina's argument to be that because the 
measures currently applied – i.e. an import prohibition – achieve a zero level of protection this 
must be the United States' ALOP for Argentina. First, we note that ALOPs are applied to risks (such 
as pests, diseases, contaminants, toxins, zoonoses, etc.) that may be transmitted through particular products. ALOPs are not applied to countries or regions. We also recall that the Appellate 
Body has clarified that the establishment of the level of protection "is an element in the 
decision-making process which logically precedes  and is separate from the establishment or 
maintenance of the SPS measure."
978  
7.386.  It may or may not be the case that the United States applies measures to Argentine 
products that are more restrictive than necessary to achieve its ALOP; we address this possibility 
in the context of Argentina's claim under Article 5.6.979 However, accepting Argentina's argument 
that the measures applied to a particular product from a particular country determines a country 
specific ALOP for that product would be contrary to the guidance of the Appellate Body that the 
appropriate level of protection determines the SPS measure to be introduced or maintained, rather 
than the appropriate level of protection being determined by the SPS measure.980 In our view, 
assuming that the level of protection achieved by a challenged measure is always  the same as the 
appropriate  level of protection determined by the importing Member could have implications for a 
proper application of Article 5.6 and could thereb y increase the possibility for importing Members 
to evade their obligations.981 Therefore, we cannot agree that even  if the application of the import 
prohibition to Argentina  achieved a "zero" level of protection this should lead us to conclude that 
the United States' ALOP for FMD is zero.  
7.387.  For the reasons set forth above, we conclude that the United States ALOP is "to prevent 
the introduction or dissemination of foot-and-mouth disease within the United States", which can 
be described as being higher than that achieved  by the Terrestrial Code and somewhere between 
low and zero risk.  
                                               
977 Panel Report, Australia – Salmon , para. 8.123.  
978 Appellate Body Report, Australia – Salmon , para. 203 (emphasis omitted). 
979 Similarly a claim that the United States was applyi ng more than one level of protection would be the 
subject of a claim under Article 5.5. However, Ar gentina has not raised a claim under Article 5.5. 
980 Appellate Body Report, Australia – Salmon , para. 203. 
981 Such a manner for determining the ALOP is precisely the type of si tuation the Appellate Body warned 
about in its report in Australia – Salmon . See Appellate Body Report, Australia – Salmon , para. 203. WT/DS447/R  
 
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  7.6.3  Whether the United States took into account the objective of minimizing negative 
trade effects when determining its approp riate level of sanitary protection  
7.6.4  Main arguments of the parties  7.6.4.1  Argentina 
7.388.  Argentina argues that the application by the United States of the prohibition on imports of 
fresh (chilled or frozen) bovine meat from Argentina, as contained in 9 CFR 94.1(b), is inconsistent with the United States' obligations under Article 5.4 of the SPS Agreement. According to Argentina, 
this is because, in the imposition of the prohibition, the United States did not take into account the 
objective of minimizing negative trade effects. 
7.389.  Argentina acknowledges the conclusion of the only panel so far to have substantively 
considered this provision – EC – Hormones  – that Article 5.4 does not impose an affirmative 
obligation. In particular, Argentina accepts that the EC – Hormones panel focused on the use of 
the term "should" rather than "shall" in the provision and the reference to an "objective", but argues nonetheless that the drafters would not have inserted a paragraph in the middle of Article 5 
that had no operative effect.
982  
7.390.  According to Argentina, the United States  fails to meet the Article 5.4 requirement of 
taking into account the objective of minimizing negative trade effects because it does not establish 
its ALOP in a coherent manner.983 This is because, according to Argentina, it assigns one of five 
different categories of risk to a country/region an d/or product on the basis of a number of different 
factors.984  
7.391.  In addition, Argentina submits that the United States' ALOP process maximizes negative 
trade effects for Argentina because the United States singles out Argentine beef and imposes a 
zero risk ALOP just for Argentine beef985, whereas, the United States "has demonstrated by actions 
that it can take actual steps to reduce the negati ve trade effects of its approach by adopting an 
appropriate level of protection in regard to other countries in the region, such as Uruguay".986 
According to Argentina, the United States has assigned risk levels and protocols and provided Uruguay with permission to import, even though APHIS does not recognize Uruguay as FMD-free. 
All of this is despite the fact that the OIE has classified both Argentina and Uruguay as FMD-free 
where vaccination is practised which, in Argentina's view, means that their situations are similar.
987 As for the United States' ALOP – 7 USC 8303(a) – Argentina argues that this is not an 
ALOP, but rather a statute that accords "unfettered discretion" to the Secretary of Agriculture with 
respect to acceptable levels of FMD risk and its related ALOP.988  
7.6.4.2  United States  7.392.  The United States disagrees with Argentina's contention that Article 5.4 imposes an 
affirmative obligation.
989 First, it contends that the verb "should", unlike "shall", expresses 
exhortation and not an obligation.990 Second, "take into account" relates to a consideration and not 
an outcome of that consideration.991 Third, "should" "be take[n] into account" indicates a goal or 
aim and not an outcome.992  
                                               
982 Argentina's first written submission, paras. 292-293. 
983 Argentina's first written submission, para. 295. 
984 Argentina's first written submission, para. 295. 
985 Argentina's first written submission, para. 299. 
986 Argentina's first written submission, para. 300. 
987 Argentina's first written submission, para. 299. 
988 Argentina's response to Panel question No. 40 fo llowing the first substantive meeting. See also 
Argentina's second written submission, para. 153. 
989 United States' first written submission, para. 282. 
990 United States' first written submission, para. 283. 
991 United States' first written submission, para. 283. 
992 United States' first written submission, para. 283. WT/DS447/R 
 
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  7.393.  The United States also contends that Argentina's argument that Article 5.4 must have 
operative meaning993 and its consequent urging the Panel to disagree with the conclusions of the 
panel in EC – Hormones  is "mere assertion, without basis in reasoning or law".994 The 
United States dismisses Argentina's argument that review of regulations for economic effects in a 
rulemaking process makes it "susceptible to non-science-based political and economic 
pressures".995 The United States also maintains that Argentina has not connected its allegations to 
the purpose of Article 5.4: determining the ALOP.996  
7.6.5  Main arguments of the third parties 
7.6.5.1  Australia 7.394.  Australia agrees with the United States that Article 5.4 of the SPS Agreement does not 
impose an affirmative obligation.
997 
7.6.5.2  European Union 
7.395.  The European Union requests the Panel to reject the Article 5.4 claims, considering that 
the panel's conclusion in EC – Hormones  is correct, for the reasons discussed in that panel's 
report.998  
7.6.6  Analysis by the Panel 7.396.  Argentina claims that the United States failed to take into account the objective of 
minimizing negative trade effects when determining its ALOP and that this is inconsistent with 
Article 5.4 of the SPS Agreement. The Panel recalls that Article 5.4 provides that "Members should, 
when determining the appropriate level of sanitary or phytosanitary protection, take into account the objective of minimizing negative trade effects." 
7.397.  The only other panel to address a claim under Article 5.4 was the panel in EC – Hormones. 
That panel examined the language in Article 5.4 of the SPS Agreement and concluded that 
Article 5.4 does not impose an affirmative obligation on Members.
999 The panel's analysis was 
centred on the use of the words "should" (as opposed to "shall") and "objective"1000 in the 
provision. 
7.398.   Argentina contends that this Panel should depart from the reasoning of the panel in EC – 
Hormones because a proper interpretation of the word "should" would impart a stronger 
connotation and thus a positive obligation on the part of importing Members. In particular, Argentina relies on the Appellate Body Report in Canada – Aircraft, which was adopted after the 
panel report in EC – Hormones , in which the Appellate Body said that the word "should" is not 
always used to imply an exhortation, but can also be used "to express a duty [or] obligation".
1001 
In that case, the Appellate Body examined the wo rd "should" in the context of the whole of the 
provision at issue (Article 13 of the DSU) and concluded that it was used in a normative rather 
than exhortative sense. 1002 The Appellate Body reached a similar conclusion about the meaning of 
the word "should" in Article 11 of the DSU in its report on Mexico – Taxes on Soft Drinks . 1003 
                                               
993 Argentina's first written submission, para. 294. 
994 United States' first written submission, para. 284. 
995 United States' first written submission, para. 285, citing Argentina's first written submission, 
para. 297. 
996 United States' first written submission, para. 285. 
997 Australia's third-party submission, para. 21. 
998 European Union's third-pa rty submission, para. 51. 
999 Panel Reports, EC – Hormones (Canada) , para. 8.169; EC – Hormones (US) , para. 8.166. However, 
the panel explained that the objective of minimizing ne gative trade effects is nonetheless to be taken into 
account in the interpretation of othe r provisions of the SPS Agreement. 
1000 Panel Reports, EC – Hormones (Canada) , para. 8.169; EC – Hormones (US) , para. 8.166. 
1001 Appellate Body Report, Canada – Aircraft , para. 187. 
1002 Appellate Body Report, Canada – Aircraft , para. 187. 
1003 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 51 (citing Appellate Body Report, 
Canada – Aircraft , para. 187). See also Panel Report, Guatemala – Cement II , fn 854 to para. 8.196 ("Although 
 WT/DS447/R  
 
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  7.399.  The Appellate Body acknowledged in both of these reports that the word "should" may be 
used in either the exhortative or normative sense. Therefor e, just as the use of the word "should" 
is not always used to imply an exhortation, it is also not always used to express a duty or obligation. Indeed, in Canada – Aircraft, the Appellate Body explained that its conclusion as to the 
meaning of the word "should" in Article 13.1 was based on the context of Article 13 as a whole. 
7.400.  Applying the guidance of the Appellate Body from Canada – Aircraft and Mexico – Taxes on 
Soft Drinks does not mandate a conclusion that the panel in EC – Hormones was incorrect and that 
Article 5.4 imposes an affirmative obligation. Rather, the Panel must undertake a similar 
contextual analysis to the use of the word "should" in Article 5.4.  
7.401.  Article 5.4 states that WTO Members should  "take into account the objective of minimizing 
negative trade effects" when determining the ALOP. Prior panels and the Appellate Body have 
interpreted the phrase "take into account"
1004 to mean "take into consideration, notice"1005. The 
panel in US – COOL also clarified that an obligation to take something into account does not 
require any particular result of that consideration.1006 In the case of Article 5.4, it is the "objective 
of minimizing negative trade effects" that must be taken into account or considered. The Appellate 
Body in US – Tuna II (Mexico) noted that an "objective" is an aim or goal.1007  
7.402.  Following the guidance in Canada – Aircraft  and Mexico – Taxes on Soft Drinks , we 
examine the use of the word "should" in the context of Article 5.4 as a whole, a provision that 
refers to consideration of a goal without needing to arrive at a particular result. It is difficult in this light to conclude that the word "should" as used in Article 5.4 is intended to impose a positive obligation on Members.  
7.403.  This understanding is reinforced by ex amining the broader context of the rest of the 
SPS Agreement. The SPS Agreement contains five instances of the use the word "should", whereas 
the word "shall" is used 37 times, illustrating to us  that the use of "should" as opposed to "shall" in 
any particular provision of this Agreement was a deliberate choice. Moreover, the word "shall" 
appears in Article 5.5
1008 and Article 5.61009 – provisions immediately following Article 5.4 and also 
dealing with the ALOP. The decision of the negotiators to use the word "should" in Article 5.4 and 
then "shall" in Articles 5.5 and 5.6 must be given meaning. We consider that to impart the word 
"should" in this context with other than an exhortative meaning would frustrate the intention of the negotiators of the SPS Agreement and could result in the Panel adding to the rights and obligations provided in the covered agreements, cont rary to the requirements of Article 3.2 of the 
DSU.  
7.404.  In sum, having regard to the language of the whole provision as well as the context of the 
other provisions on the ALOP and the rest of th e SPS Agreement, the Panel concludes that the use 
of the word "should" cannot be read as imposing an affirmative obligation on WTO Members such 
that they must or shall take into account the objective of minimizing negative trade effects when 
                                                                                                                                               
the word 'should' is often used colloquially to imply an exhortation, it can also be used 'to express a duty [or] 
obligation.'") 
1004 Or similar phrases such as "taking into account" and "taking account of".  
1005 Appellate Body Report, Korea – Various Measures on Beef , para. 111; see also Panel Report, US – 
COOL , para. 7.776. 
1006 Panel Report, US – COOL , para. 7.776. 
1007 Appellate Body Report, US – Tuna II (Mexico) , para. 313 
1008 Article 5.5 provides:  
With the objective of achieving consistency in th e application of the concept of appropriate level 
of sanitary or phytosanitary protection against risks to human life or health, or to animal and 
plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it 
considers to be appropriate in different situations, if such distinctions result in discrimination or a 
disguised restriction on international trade. Members shall cooperate in the Committee, in 
accordance with paragraphs 1, 2 and 3 of Article 12, to develop guidelines to further the practical 
implementation of this provision. In developing the guidelines, the Committee shall take into 
account all relevant factors, including the except ional character of human health risks to which 
people voluntarily expose themselves. (emphasis added) 
1009 Article 5.6 provides: 
…Members shall ensure that such meas ures are not more trade-restrictive than required to achieve their 
appropriate level of sanitary or phytosanitary prot ection, taking into account technical and economic 
feasibility. (footnote omitted, emphasis added) WT/DS447/R 
 
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  determining their appropriate level of protection. Therefore, we see no compelling reasons to 
depart from the reasoning of the panel in EC – Hormones , and conclude that Article 5.4 does not 
impose a positive obligation. Thus, the Panel will  not make findings with respect to whether the 
United States has complied with Article 5.4. 
7.405.  Assuming, however, for the sake of argument that Article 5.4 does impose a positive 
obligation, in our view Argentina's claim must nevertheless fail because it has not made a prima 
facie case that the United States failed to consider the objective of minimizing negative trade 
effects when determining its ALOP.  
7.406.  In this regard, we recall that the Appellate Body has concluded that generally accepted 
canons of evidence (in civil law, common law, and, in fact, in most jurisdictions) apply in WTO dispute settlement, i.e. that the burden of proof rests upon the party, whether complaining or 
defending, who asserts the affirmative of a particular claim or defence.
1010 To make a prima facie  
case, a complaining party must present sufficien t evidence that, "in the absence of effective 
refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the 
complaining party presenting the prima facie case."1011 Pursuant to this understanding, it is 
Argentina that bears the burden of proving that the United States did not take into account the objective of minimizing nega tive trade effects when it determined its ALOP for FMD.
1012  
7.407.  In support of its claims, the only evidence Argentina offers with a view to proving that the 
United States failed to consider the objective of minimizing negative trade effects is to point out that the United States did not in fact adopt an ALOP that, in Argentina's view, actually minimizes negative trade effects.
1013 As noted above, we disagree with Argentina that the United States' 
ALOP for FMD is not sufficiently clear to apply the SPS Agreement, and that the United States 
applies an ALOP for Argentina that is "as if" it were zero. Even assuming that Argentina is correct that the United States' ALOP is "as if" it were zero, this is not sufficient to prove that the 
United States did not take into account the objective of minimizing negative trade effects when it 
determined that ALOP. The Appellate Body confirmed in Australia – Salmon that a WTO Member 
may set its ALOP at zero.
1014 As a zero ALOP would permit the most highly-trade restrictive 
measures possible, we do not see how a coherent reading of the SPS Agreement could permit a 
zero ALOP and yet allow another Member to use the adoption of that ALOP as the only evidence in 
support of a claim of violation of Article 5.4.  
7.408.  Furthermore, we recall that the concept of "take into account" does not mandate a 
particular result. Thus, the adoption of the least trade-restrictive ALOP is not required by 
Article 5.4. Our understanding is confirmed by the right of Members to determine their own ALOP, which has been re-affirmed by multiple panels and the Appellate Body.
1015 We find that Argentina 
has not made a prima facie  case that the United States failed to take into account the objective of 
minimizing negative trade effect s when determining its ALOP.  
7.6.6.1  Conclusion 
7.409.  In sum, the Panel agrees with the panel in EC – Hormones that Article 5.4 does not impose 
a positive obligation on Members. Our conclusion was reached following an analysis of the use of the term "should" in the context of Article 5.4 as  a whole and in the rest of the SPS Agreement. 
Even assuming, for the sake of the argument, that Argentina could raise a claim under Article 5.4, 
we find that it has not made a prima facie  case as the only evidence and argumentation it has put 
forward in support of its position is the deduction that because, in Argentina's view, the United States adopted a trade-restrictive ALOP, it must not have considered the objective of 
minimizing negative trade effect s when determining that ALOP. 
                                               
1010 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US II) , para. 66; see also 
Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323 at 335-337. 
1011 Appellate Body Report, EC – Hormones , para. 104. 
1012 Appellate Body Report, US – Wool Shirts and Blouses , p. 14. 
1013 Argentina's second written submission, para. 152; Argentina argues that "[t]he United States should 
have adopted an ALOP which minimizes negative trade effects". 
1014 Appellate Body Report, Australia – Salmon , para. 125. 
1015 See Appellate Body Reports, EC – Hormones , para. 172; US/Canada – Continued Suspension , 
para. 692; and Panel Report, US – Poultry (China) , para. 7.244. WT/DS447/R  
 
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  7.6.7  Whether the United States' measures ar e more trade-restrictive than required to 
achieve the United States' ALOP 
7.6.7.1  Relevant legal provisions  7.410.  The SPS Agreement contains two provisions that relate to the obligation of ensuring that 
SPS measures are applied only to the extent required to achieve the regulating Member's ALOP. 
Article 2.2 of the SPS Agreement, setting forth the basic obligation at issue, reads: 
Members shall ensure that any sanitary or phytosanitary measure is applied only to 
the extent necessary to protect human, animal or plant life or health, is based on 
scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5. 
7.411.  Article 5.6 of the SPS Agreement reads: 
Without prejudice to paragraph 2 of Article 3, 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 achiev e their appropriate level of sanitary or 
phytosanitary protection, taking into account technical and economic feasibility. 
7.412.  In turn, footnote 3 to Article 5.6 reads: 
For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than 
required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achi eves the appropriate level of sanitary or 
phytosanitary protection and is significantly less restrictive to trade. 
7.413.  As explained by the panel in EC – Hormones , Article 5.6 constitutes a "specific application" 
of the basic obligation provided in the first requirement of Article 2.2.
1016 Therefore, we first 
address whether the United States' measures at issue are consistent with Article 5.6 before 
moving to an analysis of such measures under the first requirement of Article 2.2. 
7.6.7.2  Main arguments of the parties 7.6.7.2.1  Argentina 
7.414.  Argentina claims that the United States' measures are inconsistent with Article 5.6 because 
alternative measures are reasonably available to the United States, taking into account technical and economic feasibility, which would achieve its ALOP for FMD while being significantly less trade restrictive than the measures in force as of the time of the establishment of the Panel.
1017  
7.415.  With respect to the United States' prohibition on imports of fresh (chilled or frozen) beef, 
Argentina identifies the following alternative measures: (i) the import protocols set forth in Article 8.5.23 of the Terrestrial Code, which cont ains recommendations concerning the importation 
of meat from countries or zones where vaccination is practised
1018; and (ii) the import protocols 
set forth in 9 CFR 94.22.1019  
                                               
1016 Panel Reports, EC – Hormones  (Canada) , para. 8.99; EC – Hormones  (US), para. 8.96. 
1017 Argentina's first written submission, para. 305.  
1018 Argentina's first written submission, para. 307. Argentina also refers to Article 8.5.22 of the 
Terrestrial Code, containing recommendations for im portation of meat from countries or zones where 
vaccination is not practiced. We understand that such a provision is not relevant to Argentina's claim, as 
vaccination against FMD is practised in Northern Arge ntina. Our understanding finds support in Argentina's 
second written submission, where Argentina clarifies that the provision of th e Terrestrial Code whose 
application it considers to be an alternative measure is  that "for imports of fresh beef from areas that are 
FMD-free with vaccination". (Argentina's second written submission, para. 155 (emphasis added))  
1019 Argentina's first written submission, para. 308. See also Argentina's second written submission, 
para. 155. WT/DS447/R 
 
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  7.416.  Argentina contends that both sets of protocols are reasonably available to the 
United States, as evidenced by the fact that the former are recommended by the OIE1020, while the 
latter are currently applied by APHIS to imports of fresh (chilled or frozen) beef from Uruguay and are similar to those APHIS applied to Argentine fresh beef in 1997.
1021 According to Argentina, the 
approval of imports of Argentine fresh (chilled or  frozen) beef under either set of mitigating 
protocols would be "far less restrictive" than the "total ban" currently in place.1022 As to the ability 
of the proposed alternatives to achieve the United States' ALOP, Argentina notes that the 
United States has "rejected" the protocols under Article 8.5.23 of the Terrestrial Code because it 
claims to have a higher ALOP.1023 However, according to Argentina, the application of the protocols 
under 9 CFR 94.22 would achieve the United States' ALOP. In its view, such protocols are similar to the protocols under Article 8.5.25 of the Terrestrial Code for fresh beef from FMD- infected  areas 
where vaccination is practiced
1024, and are therefore "safe and redundant" when applied to 
products originating from regions that, like Northern Argentina, are FMD-free where vaccination is practised.
1025 Moreover, Argentina contends, with respect to FMD, that Uruguay has essentially the 
same sanitary condition as Northern Argentina, as both regions share the same OIE designation as 
FMD-free regions where vaccination is practised.1026 Hence, Argentina argues, the same protocols 
applied to imports from Uruguay would achieve the United States' ALOP if extended to imports 
from Northern Argentina. 
7.417.  With respect to the United States' prohib ition on imports of FMD-susceptible animals and 
animal products from Patagonia, the alternative measure identified by Argentina is the addition of Patagonia to the list of FMD-free countries or regions under 9 CFR 94.1(a) and the consequent 
application of the general protocols under 9 CFR 94.11 for such countries or regions that share 
land borders with regions not included in the list.
1027  
7.418.  In Argentina's opinion, the fact that APHIS recognized Santa Catarina, which has "a 
sanitary situation similar to Patagonia", as FMD-free indicates that the measure in question is 
reasonably available to the United States.1028 Further, Argentina argues that the authorization of 
imports from Patagonia under the protocols in 9 CFR 94.11 would be significantly less trade-
restrictive than the "outright prohibitions" maintained by the United States.1029 As to the ability of 
the proposed alternative to achieve the United St ates' ALOP, Argentina maintains that APHIS' 2005 
favourable risk assessment and 2007 Proposed Rule for Patagonia South both indicate that allowing imports of FMD-susceptible animals and animal products from that region present a level 
of risk that meets the United States' ALOP.
1030 The same conditions, Argentina contends, prevail in 
Patagonia North B, as evidenced, inter alia , by the OIE's recognition of the region as FMD-free 
where vaccination is not practised in 2007 based on Chapters 4.3 and 8.5 of the Terrestrial 
Code.1031 Moreover, in Argentina's opinion, the fact that Patagonia and Santa Catarina have a 
                                               
1020 Argentina's first written submission, para. 307. 
1021 Argentina's first written submission, para. 308; Argentina's response to Panel question No. 44 
following the first substantive meeting; Argentina's second written submission, paras. 162, 164. 
1022 Argentina's first written submission, para. 320 (quoting Panel Report, Australia – Salmon , 
para. 8.182). See also Argentina's response to Panel qu estion No. 44 following the first substantive meeting; 
Argentina's second written submission, para. 164. 
1023 Argentina's second written submission, para. 155 (referring to United States' first written 
submission, para. 299). Argentina does not offer any argu ments concerning the ability of the recommendations 
under Article 8.5.23 of the Terrestrial Code to achieve the United States' ALOP. 
1024 Argentina's response to Panel question No. 44 following the first substantive meeting; Argentina's 
second written submission, paras. 156-161. 
1025 Argentina' first written submission, paras. 315-316; Argentina's second written submission, 
para. 177. 
1026 Argentina' first written submission, paras. 3 12-316; Argentina's opening statement at the first 
meeting of the Panel, para. 46; Argentin a's second written submission, para. 173. 
1027 Argentina's second written submission, para. 182. See also Argentina's first written submission, 
paras. 502-503; Argentina's response to Panel question No. 44 following the first substantive meeting. 
1028 Argentina's first written submission, para. 498. 
1029 Argentina's first written submission, para. 506 (quoting Panel Report, Australia – Salmon , 
para. 8.182). 
1030 Argentina's first written submission, para. 501; Argentina's second written submission, para. 182. 
1031 Argentina's first written submission, paras. 497, 501; see also Argentina's opening statement at the 
second meeting of the Panel, para. 93. WT/DS447/R  
 
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  similar sanitary situation and share the same OIE FMD-status designation indicates that imports 
from the two regions should be treated "in the same manner".1032  
7.419.  Argentina argues that APHIS' 2014 risk analyses for Patagonia and Northern Argentina 
submitted by the United States as Exhibits USA-133 and USA-169, respectively, "confirm" and 
"corroborate" its claims that the above-mentioned alternative measures would achieve the 
United States' ALOP if applied to imports of the relevant products from the two regions.1033 In 
Argentina's opinion, the Panel is "authorized to consider and rely upon this evidence to the extent 
it deems necessary to discharge its duty under Article 11 of the DSU".1034 
7.420.  Argentina takes issue with the United States' argument that if the importing Member has a 
higher ALOP than would be achieved by measures based on an international standard, a panel cannot conduct its own assessment of the level of protection achieved by an alternative measure 
unless the importing Member conducts its own risk assessment.
1035 According to Argentina, such 
an argument is "completely circular", in that it  allows the importing Member to eschew a panel 
r e v i e w  s i m p l y  b y  f a i l i n g  t o  c o n d u c t  a  r i s k  a ssessment, thus reading Article 5.6 out of the 
SPS Agreement.1036 Moreover, Argentina asserts that Article 5.7 of the SPS Agreement cannot be 
invoked as a qualified exemption to the obligations set forth in Article 5.6.1037 In its view, there is 
"no textual or conceptual reason" to consider that  the obligation to ensure that SPS measures are 
not more trade-restrictive than required to achieve the ALOP under Article 5.6 would apply only to 
measures based on risk assessments under Article 5.1 and not to provisionally adopted measures applied pursuant to Article 5.7.
1038 
7.6.7.2.2  United States 
7.421.  The United States submits that, because of the insufficiency of scientific evidence available 
at the time of the Panel's establishment, an asse ssment of a less trade restrictive alternative under 
Article 5.6 would not be possible to complete. The United States argues that its adoption of a valid 
provisional measure in accordance with Article 5.7 reflects the core issue of the insufficiency of 
scientific evidence in connection with Argentina’s ability to control and to mitigate FMD within its borders. The United States asserts that, because APHIS was still conducting its evaluation of the 
credibility of the sanitary structures in Northern Argentina and Patagonia, its measures should not 
be examined under Article 5.6, but rather under Article 5.7.
1039 In this regard, the United States 
disagrees with Argentina's depiction of APHIS' review of its requests as a "total ban" because, in its view, APHIS is simply "implementing due diligence" vis-à-vis Northern Argentina and Patagonia 
in light of their FMD history
1040, consistently with the OIE's approach.1041 The United States takes 
the view that a provisional measure validly ma intained by a Member under Article 5.7 while 
reviewing the level of risks posed by imports from another Member cannot be more trade-
restrictive than required to achieve that Member's ALOP1042, because the insufficiency of the 
evidence justifying the maintenance of such a me asure prevents a "full, scientific assessment of 
risks"1043 and thus leaves the determination of the level of risk an "open scientific question".1044 In 
the United States' opinion, it is incumbent upon the exporting Member seeking market access to 
submit the scientific evidence necessary for such a full assessment of risks, and a panel cannot fill 
any scientific lacunae left by that Member.1045 For this reason, the United States argues that even 
                                               
1032 Argentina's first written submission, para. 502. See also Argentina's second written submission, 
para. 182. 
1033 See Argentina's opening statement at the second meeting of the Panel, paras. 14, 93, 102; 
Argentina's response to Panel question No. 53 following the second substantive meeting. 
1034 Argentina's response to Panel question No. 53 following the second substantive meeting. 
1035 Argentina's second written submission, para. 167. 
1036 Argentina's second written submission, paras. 167-169; see also Argentina's opening statement at 
the second meeting of the Panel, para. 16. 
1037 Argentina's response to Panel question No. 39 following the second substantive meeting. 
1038 Argentina's response to Panel question No. 39 following the second substantive meeting. 
1039 United States' first written submission, para. 292.  
1040 United States' first written submission, para. 293. 
1041 United States' first written submission, para. 294. 
1042 United States' second written submission, para. 104. See also United States' response to Panel 
question No. 39 following the second substantive meeting.  
1043 United States' response to Panel question No. 39 following the second substantive meeting. 
1044 United States' response to Panel question No. 46 following the first substantive meeting. 
1045 United States' response to Panel question No. 39 following the second substantive meeting. WT/DS447/R 
 
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  if the Panel were to find that its measures are not covered by the disciplines of Article 5.7, it 
should refrain from making findings under Article 5.6, lest it rule on "complex regulatory issues without the benefit of a full record".
1046 
7.422.  Further, the United States argues that Argentina failed to demonstrate that the identified 
alternative measures would achieve the United States' ALOP.1047 In the United States' view, a 
determination of whether such alternatives would meet its ALOP depends not only on the geography and the OIE FMD-status of Northern Argentina and Patagonia, but also on the credibility 
of the sanitary measures in place in such regions to prevent and control FMD.
1048  
7.423.  With respect to Argentina's proposed alternatives to the United States' prohibition on 
imports of fresh (chilled or frozen) beef, the United  States argues, first, that the application of the 
protocols under Article 8.5.23 of the Terrestrial Code would not meet its ALOP, which is higher 
than that of the OIE.1049 In particular, the United States asserts that it does not accept the 
OIE category of FMD-free countries or region where vaccination is practised.1050 This is because, 
the United States explains, the vaccination of cattle against FMD "introduces risks related to the 
immunological response within the vaccinated herd", as "some individual animals in the herd may 
have a limited response" resulting in "partial or no immunity". In addition, the United States is concerned that current FMD vaccines may have residu al Non Structural Proteins (NSP) that "could 
result in the detection of NSP antibodies in vaccinated animals", thereby not allowing the 
differentiation between vaccinated and infected animals.
1051  
7.424.  The United States disagrees with Argentina that the protocols under 9 CFR 94.22 are 
similar to those recommended by the OIE for imports of meat from FMD-infected countries or 
regions, as the former are more stringent than the latter on several scores.1052 The United States 
also takes issue with Argentina's argument that because Northern Argentina and Uruguay have similar FMD situations, the protocols applied to Uruguay under 9 CFR 94.22 would achieve the 
United States' ALOP if applied to imports from Northern Argentina.
1053 For the United States, the 
fact that the two regions share the same OIE FMD-status designation is not dispositive of whether products therefrom pose the same level of risk
1054, because such designations only provide broad 
indications of the level of risk and the underlying process is mostly confidential and based on the 
applicant Member's dossier.1055 According to the United States, differences between Northern 
Argentina and Uruguay in terms of surface area, cattle population in relation to the number of veterinarians, borders with regions of higher FMD risk, and the credibility of sanitary authorities 
distinguish the FMD situations in the two regions.
1056 In its view, Argentina has not effectively 
addressed such factors, nor has it provided any sci entific evidence concerning similarities between 
Northern Argentina and Uruguay, thereby failing to meet the burden set forth by the Appellate 
Body in Australia – Apples .1057  
7.425.  Similarly, with respect to Argentina's proposed alternatives to the United States' 
prohibition on imports of FMD-susceptible animals and animal products from Patagonia, the 
United States argues that Argentina's claim must fail because Argentina failed to substantiate the 
underlying premise that Patagonia has a similar FMD situation as Santa Catarina.1058 In the 
United States' view, the "key differentiation" between Patagonia and Santa Catarina is the fact that APHIS was able to "draw a conclusion as to the appropriateness of the import authorization terms" 
                                               
1046 United States' response to Panel question No. 57 following the first substantive meeting. 
1047 United States' first written submission, paras. 297-298. 
1048 United States' first written submission, para. 296. 
1049 United States' first written submission, para. 299; United States' response to Panel question No. 45 
following the first substantive meeting; United States' second written submission, paras. 105-106. 
1050 United States' first written submission, para. 299. 
1051 United States' first written submission, para. 299. 
1052 United States' second written submission, paras. 112-114.  
1053 United States' first written submission, para. 297; United States' second written submission, 
para. 107. 
1054 United States' first written submission, para. 297; United States' second written submission, 
paras. 108-109. 
1055 United States' second written submission, paras. 109-110. See also Ibid. paras. 118-123. 
1056 United States' first written submission, para. 297 (referring to paras. 308-310). 
1057 United States' response to Panel question No. 44 following the first substantive meeting (quoting 
Appellate Body Report, Australia – Apples , para. 364). 
1058 United States' first written submission, para. 298. WT/DS447/R  
 
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  applied to imports from Santa Catarina, whereas at the time of the Panel's establishment it had 
not reached such a determination with respect to imports from Patagonia.1059 This is because, the 
United States contends, in 2008 SENASA extended its original request for the recognition of Patagonia South to Patagonia North B and introduced "changes to the sanitary boundaries" 
between the two areas.
1060  
7.426.  Finally, the United States asserts that the 2014 risk analyses for Patagonia and Northern 
Argentina, submitted as Exhibits USA-133 and USA-169 respectively, cannot cure Argentina's 
failure to meet its burden of providing sufficien t scientific evidence to show that its proposed 
alternatives would meet the United States' ALOP, as such documents were submitted after the Panel's establishment.
1061 In the United States' opinion, the information submitted reflects data 
collected by APHIS after the date of the Panel's establishment, and thus cannot be used by 
Argentina in an attempt to show that scientific evidence was sufficient on that date. The United 
States further asserts that the Panel may rely on such documents only for a finding as to "the significant effort and substantial work done by APHIS to ensure that its review of Argentina's 
application is thorough and well documented".
1062 
7.6.7.3  Main arguments of the third parties 7.6.7.3.1  China 
7.427.  In China's opinion, because the United States' claims that the Terrestrial Code is not 
sufficient to achieve its ALOP, it could be reasonably assumed that the measures currently applying to other WTO Members (such as Uruguay and Santa Catarina) have properly achieved the 
United States' ALOP. For China, the salient fact ual question centres on whether the sanitary 
situation of Northern Argentina and Patagonia is comparable to those of Uruguay and Santa 
Catarina.
1063 China notes the Appellate Body's statement in Australia – Apples  that, in conducting 
an analysis under Article 5.6, a panel must independently assess whether the less trade-restrictive 
alternatives proposed by the complainant would achieve the respondent's ALOP.1064 Accordingly, in 
China's opinion, this Panel should reach a determination based on the totality of scientific evidence identified by Argentina.
1065 
7.6.7.3.2  European Union 
7.428.  In the European Union's view, an SPS measure is more trade restrictive than necessary to 
achieve the importing Member's ALOP only "if there is another measure reasonably available taking into account technical and economic feasibility that achieves the ALOP and is significantly 
less restrictive of trade".
1066 The European Union notes that Argentina does not contest that the 
United States is FMD-free where vaccination is not practised; nor does Argentina challenge Section 94.1(a), which provides that Argentina is not a  r e g i o n  t h a t  i s  F M D - f r e e .  T h e  E u r o p e a n  
Union believes that Argentina bears the onus of  proving the existence of such an alternative 
measure by relying on "evidence that is scientific in nature, in keeping with the overall design and architecture of the SPS Agreement".
1067 The European Union further considers that the Panel 
should accept Argentina's claims under Article 5.6 only if the facts of the case establish that a 
prohibition on imports from territories where FMD exists is not an acceptable measure to prevent the introduction of FMD into the protected territories, taking into consideration the guidance provided by the recommendations in the Terrestrial Code.
1068 
                                               
1059 United States' first written submission, para. 298. 
1060 United States' first written submission, para. 318. See also Ibid. para. 298. 
1061 United States' opening statement at the second meeting of the Panel, para. 67. 
1062 United States' response to Panel question No. 53 following the second substantive meeting. 
1063 China's third-party submission, para. 45. 
1064 China's third-party response  to Panel question No. 14. 
1065 China's third-party response  to Panel question No. 14. 
1066 European Union's thir d-party response to Pa nel question No. 14. 
1067 European Union's thir d-party response to Pa nel question No. 14. 
1068 European Union's third-pa rty submission, para. 55. WT/DS447/R 
 
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  7.6.7.4  Analysis by the Panel 
7.429.  The issue before the Panel is whether the maintenance of the United States' prohibitions 
on imports of fresh (chilled or frozen) beef from Northern Argentina and of FMD-susceptible animals and animal products from Patagonia is more restrictive than required to achieve the 
United States' ALOP for FMD. 
7.430.  In Australia – Salmon , the Appellate Body confirmed the panel's reasoning that footnote 3 
to Article 5.6 provides a three-pronged test to esta blish a violation of Article 5.6. Specifically, the 
Appellate Body held that: 
[T]he three elements of this test under Ar ticle 5.6 are that there is an SPS measure 
which: 
(1) is reasonably available taking into account technical and economic feasibility; 
(2) achieves the Member's appropriate level of sanitary or phytosanitary protection; 
and 
(3) is significantly less restrictive to trade than the SPS measure contested.
1069 
7.431.  The burden rests on the complaining party to demonstrate that there is an alternative 
measure that meets all three requirements in Article 5.6.1070 In the Appellate Body's view, the 
above-mentioned elements "are cumulative in the sense that, to establish inconsistency with 
Article 5.6, all of them have to be met".1071 Therefore, "[i]f any of these elements is not fulfilled, 
the measure in dispute would be consistent with Article 5.6".1072 The panel in India – Agricultural 
Products  considered that the cumulative nature of the three elements entails that a panel may 
address them in any order it considers appropriate.1073  
7.432.  In this dispute, Argentina argues that alternative measures are reasonably available to the 
United States which would achieve the United States' ALOP for FMD and would be significantly less trade restrictive than the prohibitions in place as  of the time of the establishment of the Panel. 
With respect to the United States' prohibition on imports of fresh (chilled or frozen) beef from 
Northern Argentina, the alternative measures put forward by Argentina are: 
a. The OIE's recommendations for importation of fresh meat of cattle and buffaloes 
(excluding feet, head and viscera) from FMD- free countries or zones where vaccination is 
practised, contained in Article 8.5.23 of the Terrestrial Code; and  
b. The mitigating protocols contained in 9 CFR 94.22.
1074 
7.433.  With respect to the United States' prohib itions on imports of FMD-susceptible animals and 
animal products from Patagonia, the alternative measure identified by Argentina is the addition of 
the region to the list of FMD-free regions in 9 CFR 94.1(a), coupled with the application of the mitigating protocols set forth in 9 CFR 94.11 for regions included in that list that share a land 
border with a region not recognized by APHIS as FMD-free.
1075  
7.434.  Argentina contends1076, and the United States does not disagree1077, that the above-
mentioned measures are reasonably available to APHIS. Similarly, the United States does not 
                                               
1069 Appellate Body Report, Australia – Salmon , para. 194. 
1070 Appellate Body Report, Japan – Agricultural Products II , para. 126. See also Panel Report, India – 
Agricultural Products , para. 7.525. 
1071 Appellate Body Report, Australia – Salmon , para. 194. 
1072 Appellate Body Report, Australia – Salmon , para. 194. See also Appellate Body Report, Australia – 
Apples , para. 337. 
1073 Panel Report, India – Agricultural Products , para. 7.524. See also Panel Report, Australia – Apples , 
para. 7.1106. 
1074 Argentina's second written submission, para. 155. 
1075 Argentina's second written submission, para. 182. 
1076 See e.g. Argentina's first written submission, paras. 307-309, 496-499. WT/DS447/R  
 
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  contest that allowing imports of fresh (chilled or frozen) beef from Northern Argentina and of 
FMD-susceptible animals and animal products from Patagonia under certain mitigating protocols would be significantly less trade-restrictive than the challenged prohibitions. The element lying at the core of the parties' disagreement – and the cr ux of the matter before the Panel – is therefore 
whether the alternative measures identified by Ar gentina would meet the United States' ALOP for 
FMD.  
7.435.  In Australia – Apples , the Appellate Body explained that, in order to assess whether a less 
trade-restrictive alternative measure would meet an importing Member's ALOP, a panel must make 
a number of "factual findings".
1078 Specifically: 
[The] panel must identify both the level of protection that the importing Member has 
set as its appropriate level, and the level of protection that would be achieved by the 
alternative measure put forth by the complainant. Thereupon the panel will be able to 
make the requisite comparison between the level of protection that would be achieved by the alternative measure and the importing Member's appropriate level of 
protection. If the level of protection achi eved by the proposed alternative meets or 
exceeds the appropriate level of protection, then (assuming that the other two conditions in Article 5.6 are met) the importing Member's SPS measure is more trade 
restrictive than necessary to achieve its desired level of protection.
1079 
7.436.  In that dispute, the Appellate Body also clarif ied that Members' obligations under Article 5.6 
are distinct from those under Article 5.1.1080 Indeed, according to the Appellate Body, "Article 5.1 
seeks to ensure that a Member's SPS measure has an appropriate scientific basis, whereas 
Article 5.6 seeks to ensure that appropriate limits are placed on the trade-restrictiveness of a 
Member's SPS measure."1081 Thus, the Appellate Body found that it would not be appropriate for a 
panel to find a measure to be inconsistent of Article 5.6 solely on the ground that the same 
measure is in breach of Article 5.1.1082  
7.437.  Rather, according to the Appellate Body, Article 5.6 "requires the panel itself to objectively 
assess, inter alia , whether the alternative measure proposed by the complainant would achieve the 
importing Member's appropriate level of protection."1083 In the Appellate Body's view, such an 
assessment is to be conducted on the basis of the scientific evidence on the record.1084 Relevant 
evidence may include an exporting Member's "risk assessment …, if such a risk assessment exists".
1085 Moreover, "elements of the importing Members' risk assessment as well as other 
factual elements outside that risk assessment may be relevant in seeking to establish that an 
alternative measure meets the appropriate level of protection".1086 
7.438.  In light of the guidance from the Appellate Body set out above, we disagree with the 
United States that we are precluded from carrying out our assessment of Argentina's claims under 
Article 5.6 because, at the time of the establishment of the Panel, APHIS had not completed its own risk analyses for Northern Argentina and Patagonia. Whether the United States' measures are 
based on a risk assessment as appropriate to th e circumstances is a question distinct from 
whether the alternative measures identified by Argentina would achieve the United States' ALOP. We answered the former question in section 7.5.3.3 above, and we must now address the latter.  
                                                                                                                                               
1077 See e.g. United States' first written submission, para. 292. 
1078 Appellate Body Report, Australia – Apples , para. 368. 
1079 Appellate Body Report, Australia – Apples , para. 344 (referring to Appellate Body Report, Australia – 
Salmon , para. 208). 
1080 Appellate Body Report, Australia – Apples , para. 341 (referring to Appellate Body Report, Australia – 
Salmon , para. 224). 
1081 Appellate Body Report, Australia – Apples , para. 341. 
1082 Appellate Body Report, Australia – Apples , para. 358. 
1083 Appellate Body Report, Australia – Apples , para. 356. 
1084 Appellate Body Report, Australia – Apples , paras. 364-365 (referring to Appellate Body Report, 
Australia – Salmon , paras. 209-213). 
1085 Appellate Body Report, Australia – Apples , para. 365 (referring to Appellate Body Report, Australia – 
Salmon , paras. 209-213). 
1086 Appellate Body Report, Australia – Apples , para. 365 (referring to Appellate Body Report, Australia – 
Salmon , paras. 209-213). WT/DS447/R 
 
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  7.439.  We note the United States' argument that the maintenance of a provisional measure under 
Article 5.7 would preclude the applicability of Article 5.6 as well as of Article 5.1. In paragraph 7.304 above, we have concluded that the United States' measures are not covered by the exemption in Article 5.7. Therefore, we see no need to consider the United States' argument 
further, and find that Article 5.6 is applicable to the measures at issue. 
7.440.  According to the standard set forth by the Appellate Body, our first task is to determine the 
United States' ALOP with respect to FMD. In paragraph 7.387 above, we have already concluded 
that the United States' ALOP for FMD is to prevent the introduction into or dissemination of FMD in 
the United States' territory. We noted that the United States' ALOP is higher than that of the OIE and we have described this ALOP as being somewhere between low and zero risk.
1087   
7.441.  Next, we must assess the level of protection achieved by Argentina's alternative measures, 
with a view to determining whether such a level of protection is equal to, or higher than, the 
United States' ALOP. Before we undertake such an  assessment, we find it useful to make a few 
preliminary observations. 
7.442.  First, our determination as to the level of protection achieved by the alternative measures 
identified by Argentina should not be reached in the abstract, but rather proceed from the specific level of risk posed by imports of the relevant products from Northern Argentina and Patagonia. 
Indeed, according to the Appellate Body, "imposing the same sanitary measure for different 
situations does not necessarily result in the same level of protection", as in "situations representing different risks … the same sanitary measure might result in different levels of protection".
1088 Therefore, we must determine whethe r applying the alternative measures 
identified by Argentina to its products would achieve the United States' ALOP, in light of the level 
of risk posed by those products. 
7.443.  Second, as explained by the Appellate Body, we must conduct our assessment based on 
the relevant scientific evidence on the record. In th is respect, we note that, during the course of 
these proceedings, the United States placed on the record two documents containing scientific information with regard to the FMD situation in Northern Argentina and Patagonia. In particular, at 
the first substantive meeting of the Panel in January 2014, the United States submitted a risk 
analysis
1089 concerning the Patagonia region as a whole (comprising both Patagonia South and 
Patagonia North B), which is dated January 2014. Moreover, shortly before the Panel's meeting with the experts in September 2014, the United States published a risk analysis
1090 concerning 
Northern Argentina, which is dated 1 April 2014. The United States then submitted the risk 
analysis to the Panel. 
7.444.  The parties disagree as to the use the Panel should make of the above-referenced 
documents. According to Argentina, the documents in question are part of the evidence submitted 
to the Panel, and therefore the Panel should feel  "authorized to consider and rely upon this 
evidence to the extent it deems necessary to discharge its duty under Article 11 of the DSU".1091 
Conversely, according to the United States, Arge ntina did not meet its burden of proof, which 
requires it to show that its proposed alternatives would meet the United States' ALOP; and APHIS' production of the documents at hand after the Panel's establishment cannot cure such a deficiency.
1092 If anything, according to the United States, the Panel may rely on the documents 
for a finding as to "the significant effort and substantial work done by APHIS to ensure that its 
review of Argentina's application is thorough and well documented".1093 
7.445.  We note that a panel's functions under Article 11 of the DSU include the duty to make "an 
objective assessment of the facts of the case". As we see it, the only way a panel can properly 
                                               
1087 See para. 7.387 above.  
1088 Panel Report, Australia – Salmon , para. 8.123.  
1089 2014 Risk Analysis for Patagonia, (Exhibit USA-133). 
1090 2014 Risk Analysis for Northern Argentina, (Exhib it USA-169). We note that, although not published 
until 29 August 2014, this document has been in the United States' possession since April 2014 (see front-page). At that time, the Panel was preparing its written questions to the experts selected to assist it in this dispute.  
1091 Argentina's response to Panel question No. 53 following the second substantive meeting. 
1092 United States' opening statement at the second meeting of the Panel, para. 67. 
1093 United States' response to Panel question No. 53 following the second substantive meeting. WT/DS447/R  
 
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  discharge such a duty is by relying on the evidence  placed on the record by the parties – and, in 
certain circumstances, by exercising its powers under Article 13.1 of the DSU to "seek information and technical advice from any individual or body which it deems appropriate". We recall that, prior 
to the first substantive meeting, we asked the parties to provide any risk assessment in their 
possession that might be relevant to our assessment of Argentina's claims.
1094  
7.446.  We consider that once a piece of evidence has been placed on the record, it is a panel's 
duty to evaluate its content irrespective of which party has submitted it and determine whether 
that supports the claims or defences relevant to the legal provisions at issue. Doing so does not 
amount to a panel overstepping its authority to make a case for the complainant.1095 The practice 
of panels and the Appellate Body lends support to this interpretation. For instance, in Japan – 
Apples , the Appellate Body stated that a panel "has the authority to make findings and draw 
conclusions on arguments and allegations of fact that are made by the respondent and relevant  to 
a claim pursued by the complainant".1096 As another example, in India – Quantitative Restrictions , 
the Appellate Body did not object to the panel's reliance on the defendant's responses to the 
complainant's arguments in establishing whether the complainant had made a prima facie  case.1097  
7.447.  Further, the fact that the documents submitted by the United States post-date the 
establishment of the Panel does not, in our view, prevent us from evaluating their content. As the 
Appellate Body stated in Canada – Aircraft , "a panel is vested with ample and extensive 
discretionary authority to determine when it needs information to resolve a dispute and what 
information it needs".1098 More specifically, in EC – Selected Customs Matters , the Appellate Body 
explained that "[e]vidence in support of a claim challenging measures that are within a panel's 
terms of reference may pre-date or post-date the establishment of the panel", therefore a panel 
"is not precluded from assessing a piece of eviden ce for the mere reason that it pre-dates or 
post-dates its establishment".1099 That being said, as we discussed in paragraph 7.118 above, we 
consider that the appropriate point in time to be taken into account in assessing the sanitary 
situation in Argentina for purposes of evaluating  the consistency of the United States' measures 
with the covered agreements is the date of the establishment of the Panel. Therefore, in these 
circumstances, we do not consider it appropriate to consider factual evidence relating to the period 
post-dating the establishment of the Panel.  
7.448.  We are aware that the conclusions reached by APHIS in the risk analyses submitted by the 
United States concerning the FMD situation in Northern Argentina and Patagonia refer to the 
circumstances that existed at the time such analyses were completed, i.e. January and April 2014, 
respectively. However, they also refer to docume nts produced by Argentina that cover the time-
period from 2005 until APHIS' site visit in November 2013. Thus, the conclusions APHIS reached 
are based on information that both pre-dates and post-dates the establishment of the Panel. 
Therefore, APHIS' conclusions cannot be dispositiv e of our assessment of the situation in Northern 
Argentina and Patagonia as it existed at the time of the establishment of the Panel , i.e. 28 
January 2013. Consequently, in evaluating the content of the exhibits in question, it would not be 
appropriate for us to retrospectively apply the conclusions  APHIS reached to the question before 
us, namely whether, at the time of the Panel's establishment, Argentina's proposed alternative measures would achieve the United States' ALOP.
1100 However, to the extent that we are relying 
on the information that pre-dates the establishment of the Panel – such as citation to information 
submitted by Argentina on the sanitary situations in Northern Argentina or Patagonia - and not on 
                                               
1094 Panel question No. 27 in advance of the first substantive meeting. 
1095 See e.g. Appellate Body Report, Canada – Renewable Energy / Canada – Feed-in Tariff Program , 
para. 5.215 ("While a panel cannot make the case for a complainant, it has the competence 'freely to use arguments submitted by any of the part ies – or to develop its own legal reasoning – to support its own findings 
and conclusions on the matter under its consid eration.") (quoting A ppellate Body Report, EC – Hormones , 
para. 156). 
1096 Appellate Body Report, Japan – Apples , para. 135 (emphasis omitted). See also Appellate Body 
Report, US – Large Civil Aircraft (2nd complaint) , paras. 1138-1140, where the Appellate Body clarified that a 
panel may, and should, have recourse to its powers under Article 13.1 of the DSU to reques t relevant evidence 
in possession of the respondent that is necessary to objectively assess the complainant's claims. 
1097 Appellate Body Report, India – Quantitative Restrictions , para. 142. 
1098 Appellate Body Report, Canada – Aircraft , para. 192 (emphasis original). 
1099 Appellate Body Report, EC – Selected Customs Matters , para. 188. 
1100 See Appellate Body Report, US – Cotton Yarn , para. 78. WT/DS447/R 
 
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  the conclusions APHIS drew from that information, we see no problem in including that information 
in our analysis.  
7.449.  Third, we want to clarify the role of  individual experts in these proceedings. The 
United States refers to the Appellate Body's statement in US/Canada – Continued Suspension  that 
a panel's consultations with experts "should not seek to test whether the experts would have done 
a risk assessment in the same way and would have reached the same conclusions as the risk assessor".
1101 In our view, the situation in this dispute is different from that with which the 
Appellate Body was confronted in US/Canada – Continued Suspension and is directly comparable 
to that presented in Australia – Apples .1102 Indeed, the experts consulted by the Panel were not 
tasked with reviewing any risk analysis produced by APHIS with respect to the FMD situations in Northern Argentina and Patagonia for the purpose of evaluating the compliance of the 
United States' measures with Article 5.1. Rather, the role of the experts here is to assist us in our 
own assessment of the scientific evidence on the re cord, consistently with the guidance from the 
Appellate Body to panels under Article 5.6. In th is respect, the Appellate Body distinguished the 
obligation in Article 5.6 from that under Article 5.1 in the following terms:  
Caution not to conduct a de novo review is appropriate where a panel reviews a risk 
assessment conducted by the importing Member's authorities in the context of 
Article 5.1. However, the situation is different in the context of an Article 5.6 claim. 
The legal question under Article 5.6 is no t whether the authorities of the importing 
Member have, in conducting the risk assessment, acted in accordance with the obligations of the SPS Agreement . Rather, the legal question is whether the importing 
Member could have adopted a less trade-restrictive measure.
1103 
7.450.  Finally, we are mindful that the task befo re us, as described by the Appellate Body in 
Australia – Apples , is to determine whether the alternative measures identified by Argentina 
achieve the United States'  ALOP. Therefore, in carrying out our analysis, we find it useful to 
consider the 11 factors that APHIS takes into account when it makes its determinations pursuant to 9 CFR 92.2: 
(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?); 
(3) The extent of an active disease control program, if any, if the agent is known to 
exist in the region; 
(4) The vaccination status of the region; 
(5) The status of adjacent regions with respect to the agent; 
(6) The degree to which the region is separa ted from adjacent 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; 
                                               
1101 United States' comments on the experts response s to Panel questions, para. 3 (quoting Appellate 
Body Report, US/Canada – Continued Suspension , para. 592). 
1102 In US/Canada – Continued Suspension , the measure at issue was aimed at protecting human life or 
health "from risks arising from additives, contaminan ts, toxins or disease-causing organisms in foods, 
beverages or feedstuffs".  (See Panel Reports, US – Continued Suspension , para. 7.434; Canada – Continued 
Suspension , para. 7.425) Conversely, in both Australia – Apples  and the present dispute, the measures at 
issue aim to protect animal life or he alth "from risks arising from the entry,  establishment or spread of pests, 
diseases, disease-carrying orga nisms or disease-causing organisms". (See Panel Report, Australia – Apples , 
para. 7.139. See also para. 7.48 above) 
1103 Appellate Body Report, Australia – Apples , para. 356.  WT/DS447/R  
 
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  (8) Livestock demographics and marketing practices in the region; 
(9) The type and extent of disease surveillance in the region; (10) Diagnostic laboratory capacity; and (11) Policies and infrastructure for animal disease control in the region.
1104 
7.451.  We note that these factors are similar to those used by the OIE when it makes its 
determinations of official recognition of disease status.1105 
7.452.  Where relevant, we also find it useful to refer to the standards, guidelines and 
recommendations developed by the OIE and embodied  in the Terrestrial Code and the Terrestrial 
Manual. We note that this is consistent with the United States own view. In particular, we recall that APHIS attaches weight to the exporting country's compliance with the relevant provisions of the Terrestrial Code and Terrestrial Manual when reviewing requests filed under 9 CFR 92.2.
1106 
Finally, while our review is not bound by the discip lines of Article 5.1, we draw guidance from the 
requirement in that provision that the "risk a ssessment techniques developed by the relevant 
international organizations" be taken into account. 
7.453.  With these considerations in mind, we now turn to our assessment of whether the 
alternative measures identified by Argentina would have achieved the United States' ALOP for FMD as of the date of the establishment of the Panel. First, we examine the proposed alternatives 
for fresh (chilled or frozen) beef from Northern Argentina. Next, we turn to the proposed 
alternatives for FMD-susceptible animals and animal products from Patagonia. 
7.6.7.4.1  The proposed alternatives to the Un ited States' prohibition on imports of fresh 
(chilled or frozen) beef from Northern Argentina 
7.454.  To determine whether the mitigating effects of the proposed measures would permit fresh 
(chilled or frozen) beef from Northern Argentina to achieve the United States' ALOP, we find it useful to examine the evidence on the record in light of the 11 factors APHIS used to evaluate the 
FMD-status of an applicant country or region at the time Argentina filed its request.  
7.6.7.4.1.1  The authority, organization and infrastructure of the veterinary services 
organization in the region 
7.455.  In its 2005 risk analysis for Patagonia South, APHIS examined numerous aspects relating 
to SENASA's authority, organization, infrastructure and capacity to prevent and control FMD in the whole Argentine territory. With regard to these factors, APHIS' 2005 findings on SENASA are not limited to the Patagonia region but, cover SENASA's policies and actions in the whole Argentine 
territory. Further, in Drs Batho and Bonbon's views,  there is no reason to believe that SENASA's 
authority, organization and infrastructure in Nort hern Argentina would be different from those in 
Patagonia.
1107 Dr Cupit did note key relevant differences between SENASA's activities in the two 
regions in that vaccination of cattle, serological surveillance, and maturation and deboning of fresh 
                                               
1104 See e.g. 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 9. As discussed in fn 31 above, 
we refer here to the version of 9 CFR 92.2 that was in force at the time of the filing of Argentina's request for 
authorization of imports of fresh (chilled or frozen) beef, submitted as Exhibit ARG-118.  
1105 Such factors are enumerated in Articles 1.6.4 of the Terrestrial Code, and in clude: (i) geographical 
factors; (ii) livestock industry; (iii) relevant veterinary  legislation; (iv) veterinary  services; (v) the role of 
farmers, industry, private veterinari ans and other relevant groups in FM D surveillance and control; (vi) 
FMD history in the region; (vii) FMD control and eradication strategies; (viii) vaccines and vaccination; (ix) animal identification and movement controls; (x) FMD laboratory diagnosis carried  out in the region; (xi) 
organization and capacity of approved laboratories; (x ii) serological surveillance; (xiii) slaughterhouses and 
markets; (xiv) coordination with neighb ouring countries; (xv) controls in place for swill feed ing; (xvi) import 
control procedures; and (xvii) contro l measures and contingency planning. 
1106 United States' comment on the OIE's response to Panel question No. 31. 
1107 Dr Batho's response to Panel question No. 31; Dr Bonbon's response to  Panel question No. 31. 
Dr Cupit concurred that the 2005 risk assessment for Patagonia South "could form the basis of the risk assessment for the Argentine territory as a whole" with respect to SENASA's capacity. (Dr Cupit's response to 
Panel question No. 31) WT/DS447/R 
 
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  (chilled or frozen) beef are conducted only in Northern Argentina.1108 We specifically look at the 
evidence concerning vaccination (paragraphs 7.468-7.473), serological surveillance (paragraphs 7.489-7.491 and maturation and deboning (paragraphs 7.492-7.493 below. 
7.456.  APHIS reviewed the legal and administrative sources of SENASA's authority. It observed 
that a number of laws, decrees and resolutions from the period 1903-2001 enable SENASA to take 
action to prevent and control FMD.
1109 Most of APHIS' assessment in this regard focused on the 
reorganization of SENASA in 2001-2002, which was intended "to increase the efficiency of the 
existing geopolitical system and address inte rnational perception that SENASA had not been 
transparent with its trading partners about its FMD situation".1110 SENASA' reorganization included: 
the centralization of command and control of the animal health programs1111; enhanced internal 
monitoring, accountability, and compliance with national policies1112; an increased emphasis on 
border controls1113; the redefinition of the boundaries of regional units in order to achieve a more 
efficient distribution of personnel according to the level of activity occurring in each region1114; the 
repartition of tasks between SENASA's central and regional offices in terms of, inter alia , 
preventive, control, and eradication actions, monitoring of compliance with SENASA's policies, 
investigation of suspected outbreaks, movement controls, updating of registries and databases, assessment of field staff performance, inspection  of slaughtering and processing plants and 
storage facilities, and the establishment of the methods and test protocols used in laboratories.
1115 
The laws and regulations governing SENASA and it s structure have remained unchanged since the 
2005 risk assessment.1116 
7.457.  APHIS then reviewed SENASA's financial and human resources. It found that SENASA's 
2003 budget was of 117 million pesos (equivalent to approximately USD 39 million), and noted 
that, according to SENASA officials, the system wa s "self-sufficient" because of the fees required 
for SENASA's services.1117 It also found that, in 2005, SENASA employed 3,479 people, out of 
which 2,558 were permanent staff and 572 were veterinarians.1118 It also observed that SENASA 
could hire contract staff if need be.1119 In terms of the veterinarians' licensure and training, APHIS 
noted that official SENASA veterinarians must renew their professional registration on a yearly 
basis and must comply with training requirements in line with the main strategies of the 2001 
National Eradication Plan for FMD.1120 The laws and regulations governing the licensure, 
qualifications, and training of veterinarians are unchanged from the 2005 risk assessment.1121 
7.458.  Next, APHIS turned to the role of SENASA's field offices in the identification of premises 
and the census of FMD-susceptible animals. It found that all premises with agricultural animal 
production must register with the National Sanita ry Registry of Ag-Producers (RENSPA) and obtain 
an identification number.1122 Each RENSPA number provides information as to the location, 
ownership or rental status, and number of FMD-susceptible animals on the premises concerned.1123 
It also includes the name of a SENASA veterinarian, who, according to the law, is in charge of reporting problems that he or she may observe on the premises.
1124 Failure to report animal health 
problems observed on the premises entails a fine for the owner, the responsible veterinarian, or 
both, as well as the forfeiture of the indemnity normally paid by SENASA to cattle owners in case of stamping-out following an FMD outbreak.
1125 A centralized database containing information on 
the census of all animals on the premises and the FMD test status of each premise is maintained 
                                               
1108 See Dr Cupit's response to Panel question No. 31. 
1109 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 9-10. 
1110 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 10-11. 
1111 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 11. 
1112 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 11. 
1113 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 11. 
1114 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 11. 
1115 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 12-14. 
1116 2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), pp. 10-16.  
1117 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 15. 
1118 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 15. 
1119 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 15. 
1120 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 17. 
1121 2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), pp. 17-18.  
1122 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 18. 
1123 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 18-19. 
1124 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 18. 
1125 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 18. WT/DS447/R  
 
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  and updated by SENASA's field officials. Monthly statistical reports are generated from this 
database.1126 Argentina submitted information to APHIS covering the period between 2002 and 
2009, which indicated that identification of premis es and the census of FMD-susceptible animals by 
SENASA had not essentially change d since the 2005 risk assessment.1127 
7.459.  APHIS further reviewed the controls on the movement of FMD-susceptible animals 
throughout the Argentine territory. It observed th at a movement permit (DTA) is required when 
animals go to slaughter, go to market, cross prov incial lines or are exported internationally and, 
generally, if an animal is moved from one farm to another.1128 Movement permits record the 
RENSPA numbers of both the premises of origin and the premises of destination of every single 
animal, and allow SENASA to detect unlawful attempts to ship more animals than the census would predict.
1129 The animals being moved must carry visible identification marks and be 
transported in vehicles approved by SENASA upon checking compliance with the washing and 
disinfection requirements.1130 SENASA officials must inspect the animals concerned on the 
premises of origin and verify official documents before shipment.1131 When animals are shipped 
from farm to farm, the DTA must be returned within  15 days to the local office of destination, and 
that office will contact the local office of origin of the shipment arrival.1132 SENASA's staff, the 
owners of or persons responsible for the animals, the shippers and the slaughter plants are all 
jointly liable for failure to comply with the above-referenced requirements.1133 SENASA provided 
information to APHIS covering the period betw een 2003 and 2007, which indicated that movement 
controls in Argentina remained essentially unchanged since the 2005 risk assessment.1134 
7.460.  Finally, APHIS reviewed SENASA's regulati ons concerning swill feeding. It found that the 
only form of swill feeding permitted in Argentina is the feeding of pigs with leftovers of food 
substances of animal origin coming from stores approved by the competent authority to manufacture or sell food.
1135 Authorization is conditioned on compliance with the requirement that 
the swill be subjected to a cooking process guar anteeing destruction of pathogenic organisms.1136 
The laws and regulations governing swill feeding remain unchanged since 2005.1137 
7.461.  Based on all the foregoing, APHIS concluded in 2005 that "Argentina has the veterinary 
and regulatory infrastructure to adequately monitor and control any incursion of FMD into the 
country".1138 Specifically, APHIS considered that "[t]here is sufficient monitoring of animal 
premises and movements to permit effective surveillance and detection programs that would result in sufficient administration of eradication efforts, if needed".
1139 APHIS also "expressed confidence" 
that SENASA's delays in reporting the 2000-2001 FMD outbreaks would not occur again if 
analogous events were to occur today.1140 
7.462.  We do not see any evidence on the record indicating that, throughout the period leading 
up to the Panel's establishment, SENASA's authority, organization, infrastructure, and capacity to 
prevent and control FMD in the Argentine territo ry changed in a manner that would contradict 
APHIS' conclusions in 2005. Indeed, as Dr Ba tho noted, SENASA's infrastructure "improved 
                                               
1126 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 19. 
1127 2014 Risk Analysis for Northern Argentina, (Exh ibit USA-169), pp. 18-19, 52-54. Although APHIS 
also refers to some additional information SENASA pr ovided in November 2013, as stated in para. 7.447 
above, the Panel does not rely on this evidence. 
1128 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 21. 
1129 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 21.  
1130 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 21-22. 
1131 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 22. 
1132 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 22. 
1133 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 21. 
1134 2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), pp. 54-56.  
Although APHIS also refers to some additional information SENASA provided in November 2013, as 
stated in para. 7.447 above, the Panel does not rely on this evidence. 
1135 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 22-23. 
1136 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 23. 
1137 2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), pp. 18-19.  
1138 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 23. 
1139 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 23. 
1140 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 23. WT/DS447/R 
 
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  dramatically" during that period in several respects.1141 For instance, SENASA's 2013 annual 
budget was 1.3 billion pesos (equivalent to approximately USD 200 million)1142, i.e. over five times 
more than in 2005. Further, in 2013 SEN ASA employed 5,500 people, of which 1,054 are 
veterinarians.1143 Thus, SENASA's personnel doubled  from 2005 to 2013. Also, in order to improve 
animal tracking and movement controls thro ughout the Argentine territory, in 2006 SENASA 
instituted a compulsory cattle identification program, requiring that all calves born after September 2007 carry official tags.
1144 
7.463.  Other evidence on the record is consistent with APHIS' 2005 conclusions. The European 
Commission's most recent evaluation of the FMD situation in Argentina available on the record (dated 2006) concludes that the Argentine veterinary authority "is well organised".
1145 In its 
evaluations over the period 2002-2006, the Commissi on did identify some "deficiencies" with 
respect e.g. to animal identification and movement controls.1146 Despite such deficiencies, the 
Commission concluded that SENASA's ability to  prevent and control FMD was "satisfactory"1147 and 
progressively reopened its market to fresh (chilled or frozen) beef from Northern Argentina 
according to the disease history of each province.1148 In his responses to Panel questions, Dr Cupit 
confirmed that SENASA imposes "strict movement co ntrols that operate within Argentina especially 
between the FMD-free areas with and without vaccina tion and also the buffer/border region with 
Paraguay and Bolivia".1149 Further, in Dr Bonbon's view, the evidence on the record shows that 
"the capacities of the Argentinian veterinary services … have improved since 1997", when Argentina was authorized to export fresh (chilled or frozen) beef to the United States.
1150 
7.464.  The evidence on the record indicates that, at the time of the establishment of the Panel, 
SENASA had the necessary veterinary and regulato ry infrastructure to adequately monitor and 
control FMD in Northern Argentina. 
7.6.7.4.1.2  Disease st atus of the region 
7.465.  Northern Argentina experienced multiple outbreaks in several provinces throughout the 
period 2000-20011151 and an outbreak in the province of Salta in September 2003.1152 Further, in 
February 2006, a number of infected animals were de tected in a farm in the northern province of 
Corrientes1153, close to the border with Paraguay. SENASA promptly notified the outbreak to the 
OIE and to Argentina's trading partners1154 and immediately took action by adopting 
                                               
1141 See Dr Batho's response to Pa nel question No. 57. Dr Bonbon added that, in light of such 
improvements, the risk of FMD-transmission from import s of fresh (chilled or frozen) beef from Northern 
Argentina is "lower than it was in 1997". (Dr Bonbon's response to Panel question No. 57) 
1142 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 16. 
1143 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 16. 
1144 Resolución SENASA 754/2006. Créase la Clave Unica de Identificación Ganadera, que identificará 
individualmente a cada productor pe cuario del país en cada establecimiento agropecuario. Apruébase el 
"Procedimiento para Reidentificación de Bovino s, (Resolución SENASA 754/ 2006), (Exhibit ARG-143).  
1145 European Commission's 2006 Report, (Exhibit ARG-111), p. 21. 
1146 See e.g. 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. (D G(SANCO)/8715/2002 – MR Final),  (European Commission's 2002 Report), 
(Exhibit ARG-107), p. 27; European Commission's 2006 Report, (Exhibit ARG-111), p. 21. 
1147 Dr Cupit's response to Panel question No. 31. 
1148 See e.g. Decision of the European Commission No. 2002/45/EC (22 January 2002), 
(Exhibit ARG-114); Decision of the European  Commission No. 2002/68/EC (30 January 2002), 
(Exhibit ARG-108); Decision of the Europe an Commission No. 2002/198/EC (7 March 2002), 
(Exhibit ARG-109); 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, (Commission Regulation No. 206/2010), (Exhibit ARG-1). 
1149 Dr Cupit's response to Panel question No. 36.  
1150 Dr Bonbon's response to Panel question No. 44. 
1151 See United States' first written submission, paras. 78-80. 
1152 Argentina's facsimile of 5 September 2003, (Exh ibit USA-51); SENASA's letter of 29 August 2003, 
(Exhibit USA-83). 
1153 See FMD Impact Workshee t, (Exhibit USA-54).  
1154 OIE, Final Report, 74th General Session (2006), (Exhibit USA-55), pp. 45, 144.  WT/DS447/R  
 
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  Resolutions 35/2006 and 36/2006.1155 Measures adopted by SENASA included the stamping-out of 
the infected animals and susceptible species that had been in contact therewith, the imposition of movement restrictions in all the departments sharing borders with the department affected, the establishment of control and disinfection posts around the restricted areas, ring vaccination, and 
active surveillance of susceptible animals in an area of 13 kilometres surrounding the affected 
premises.
1156 According to APHIS, such measures were effective and the February 2006 outbreak 
was "quickly contained and eliminated".1157 These conclusions were shared by the European 
Commission which, in its 2006 evaluation of the FMD situation in Northern Argentina, stated that, 
overall, "the FMD outbreak in the province of Corrientes was controlled in a rapid, transparent and effective manner".
1158 There have not been any further FMD outbreaks in Northern Argentina 
since 2006 . 
7.466.  As part of the process for the reinstatement of Northern Argentina's status as FMD-free 
where vaccination is practised, the OIE conducted a site visit to the region in 2006.1159 The 
FMD-free where vaccination is practised status was reinstated in 20071160 and has been confirmed 
every year thereafter. In 2011, the OIE also recognized the border protection zone established 
along the Argentine border with Bolivia, Paraguay  and Brazil as FMD-free where vaccination is 
practised.1161 
7.6.7.4.1.3  The extent of an active disease control program, if any, if FMD is known to 
exist in the region 
7.467.  Numerous laws, decrees and regulations adopted between 1968 and 2013 establish a 
number of requirements and procedures aimed at  preventing outbreaks of FMD in Northern 
Argentina and at controlling the disease should an outbreak occur.1162 The National Eradication 
Plan for FMD adopted by SENASA in 2001 as a response to the multiple FMD outbreaks experienced throughout the period July 2000-April 2001 sets out SENASA's general objectives and 
the measures to be put in place in order to eradicate FMD from the Argentine territory.
1163 The 
Plan is complemented by a number of subsequent  regulations detailing SENASA's actions for the 
prevention and control of FMD. Table 4 below pr ovides an overview of  the content of such 
regulations by broad topic. 
                                               
1155 Resolución SENASA 35/2006, (Exhibit ARG-5); Re solución SENASA Nº 36/06, (Resolución SENASA 
36/2006), (Exhibit ARG-6). 
1156 Resolución SENASA 35/2006, (Exhibit ARG-5); Re solución SENASA 36/2006, (Exhibit ARG-6); 
SENASA's letter of 26 July 2006, (Exhibit ARG-97).  
1157 USDA/APHIS, Veterinary Services, APHIS Evaluation of the Status of the Brazilian State of Santa 
Catarina Regarding Foot-and-Mouth Disease, Classical Sw ine Fever, Swine Vesicular Disease, and African Swine 
Fever  (revised 16 August 2010), (2010 Risk Evaluation for Santa Catarina), (Exhibit ARG-7), p. 24. 
1158 European Commission's 2006 Report, (Exhibit ARG-111), p. 20. 
1159 OIE's response to Panel question No. 13.  
1160 OIE Resolution XXI of 2007, (Exhibit ARG-10). 
1161 OIE Resolution 14 of 2011, (Exhibit ARG-12). 
1162 2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), pp. 29-31. 
1163 Plan de Erradicación de la Fiebre Aftosa: Resolución SENASA 5/01, (Resolución SENASA 5/2001), 
(Exhibit ARG-4/USA-37). WT/DS447/R 
 
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  Table 4: Overview of the regulations in fo rce in Argentina to prevent and control FMD 
Action by SENASA Relevant regulations on the record 
Regionalization of the Argentine 
territory and implementation of 
domestic sanitary barriers 2001 National Eradication Plan1164; SENASA Resolution 25/20011165; 
SENASA Resolution 58/20011166; SENASA Resolution 112/20021167; 
SENASA Resolution 1051/20021168; SENASA Resolution 725/20051169; 
SENASA Resolution 148/20081170; SENASA Resolution 1282/2008.1171 
Strategic and systematic vaccination 2001 National Eradication Plan1172; SENASA Resolution 33/20021173; 
SENASA Resolution 385/20081174; SENASA Resolution 181/20101175; 
SENASA Resolution 82/2013.1176 
Epidemiological and serological 
surveillance  2001 National Eradication Plan1177; SENASA Resolution 540/2010.1178 
Vaccine quality control  SENASA Resolution 351/2006.1179  
Identification of premises and tracking 
of FMD-susceptible animals 2001 National Eradication Plan1180; SENASA Resolution 754/20061181; 
SENASA Resolution 540/20101182; SENASA Resolution 563/2012.1183 
Immediate and mandatory reporting 
of FMD cases by authorities and 
private citizens 2001 National Eradication Plan1184; SENASA Resolution 540/2010.1185 
International border controls on 
movement of FMD-susceptible animal 
and animal products 1968 Decree on the inspection of products and sub-products of 
animal origin1186; SENASA Resolution 58/20011187; SENASA 
Resolution 178/20011188; SENASA Resolution 37/20021189; SENASA 
Resolution 112/20021190; SENASA Resolution 15/2003 (imposing 
special requirements for export of  FMD-susceptible products to the 
European Union)1191; SENASA Resolution 391/2003 (imposing special 
requirements for export of FMD-susc eptible products to the European 
Union)1192; SENASA Resolution 725/20051193; SENASA 
Resolution 754/20061194; SENASA Resolution 148/20081195; SENASA 
Resolution 810/20091196; SENASA Resolution 563/20121197; SENASA 
Resolution 82/20131198; SENASA Resolution 238/2013.1199  
                                               
1164 Resolución SENASA 5/2001, (Exhibit ARG-4/USA-37). 
1165 Resolución SENASA Nº 25/01, (Resoluc ión SENASA 25/2001), (Exhibit ARG-92). 
1166 Resolución SENASA 58/2001, (Exhibit USA-59). 
1167 Resolución SENASA Nº 112/02, (Resol ución SENASA 112/2002), (Exhibit ARG-94). 
1168 Resolución SENASA 1051/2002, (Exhibit USA-60). 
1169 Resolución SENASA 725/2005, (Exhibit USA-61). 
1170 Resolución SENASA 148/2008, (Exhibit USA-62). 
1171 Resolución SENASA 1282/2008, (Exhibit USA-109). 
1172 Resolución SENASA 5/2001, (Exhibit ARG-4/USA-37). 
1173 Resolución SENASA 33/2002. Apruébase la Guía de Pr ocedimientos para Planes de Vacunación y el 
Formulario para la Auditoría de Planes de Vacunación, (Exhibit ARG-153). 
1174 Resolución SENASA 385/2008. Estrategias de Vacunaci ón Antiaftosa para bovinos/bubalinos en todo 
el Territorio Nacional, (Exhibit ARG-139). 
1175 Resolución SENASA 181/2010. Modificación de la es trategia de vacunación en relación con la 
erradicación de la fiebre aftosa, (Resolución SENASA 181/2010), (Exhibit ARG-134). 
1176 Resolución SENASA 82/2013. Vacunación antiaftosa en la Zona Patagónica Norte A. Prohibición, 
(Resolución SENASA 82/2013) , (Exhibit ARG-138). 
1177 Resolución SENASA 5/2001, (Exhibit ARG-4/USA-37). 
1178 Resolución SENASA 5/2001, (Exhibit ARG- 4/USA-37); Resoluci ón SENASA 540/2010, 
(Exhibit ARG-135) . 
1179 Resolución SENASA Nº 351/06, (Exhibit ARG-18). 
1180 Resolución SENASA 5/2001, (Exhibit ARG-4/USA-37). 
1181 Resolución SENASA 754/2006, (Exhibit ARG-143). 
1182 Resolución SENASA 5/2001, (Exhibit ARG- 4/USA-37); Resoluci ón SENASA 540/2010, 
(Exhibit ARG-135) . 
1183 Resolución SENASA 563/2012. Identificación de la s especies Bovino y Bu balino. Deróganse los 
Artículos 2°, 3° y 4° de la Resolución N° 370/2006 de la ex Secretaría de Agricultura, Ganadería, Pesca y Alimentos, (Resolución SENASA 563/2012), (Exhibit ARG-144). 
1184 Resolución SENASA 5/2001, (Exhibit ARG-4/USA-37). 
1185 Resolución SENASA 5/2001, (Exhibit ARG- 4/USA-37); Resoluci ón SENASA 540/2010, 
(Exhibit ARG-135) . 
1186 Decreto 4238/68. Reglamento de Inspección de Productos, Subproductos y Derivados de Origen 
Animal, (Decreto 4238/68), (Exhibit ARG-147). 
1187 Resolución SENASA 58/2001, (Exhibit USA-59). 
1188 Resolución SENASA 178/2001. Reglaméntase el proc edimiento que garantiza la identificación del 
origen de los animales que se movilicen con cualquier destino. Derógase la Resolución Nº 1991/2000, (Exhibit ARG-152). WT/DS447/R  
 
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  Action by SENASA Relevant regulations on the record 
Slaughterhouse prac tices (ante- and 
post-mortem inspections, deboning 
and maturation, disinfection 
requirements, etc.)  1968 Decree on the inspection of products and sub-products of 
animal origin1200; SENASA Circular No. 3307/19971201; SENASA 
Resolution 15/2003 (imposing special requirements for export of 
FMD-susceptible products to the European Union)1202; SENASA 
Resolution 391/2003 (imposing special requirements for export of 
FMD-susceptible products to the European Union)1203; SAGPYA 
Resolution 310/20041204; SENASA Notice No. 4056/2013.1205  
Sanitary steps concerning susceptible, 
infected, and contac t animals in case 
of an outbreak 2001 Manual of procedures for the handling of outbreaks1206; SENASA 
Resolution 35/20021207; SENASA Resolution 37/20021208; SENASA 
Resolution 35/2006 (setting forth measures to contain the outbreak in the Province of Corrientes)
1209; SENASA Resolution 36/2006 
(establishing stamping-out to contai n the outbreak in the Province of 
Corrientes)1210; 2007 National Plan for the Containment of FMD.1211 
 
7.6.7.4.1.4  The vaccination  status of the region 
7.468.  In Northern Argentina, the entire cattle population is currently required to be vaccinated 
on a yearly basis. Cattle between 6 and 24 mont hs of age and animals to be moved from one 
facility to another are vaccinated twice a year.1212 In the border protection zone, vaccination is 
conducted twice a year for all categori es of cattle, as well as buffaloes.1213 
                                                                                                                                               
1189 Resolución SENASA 37/2002. Establéc ense medidas de prevención de difusión de la fiebre aftosa 
ante la aparición de casos clínicos de la enfermedad, o an te 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, (Resolución SENASA 37/2002), (Exhibit ARG-142). 
1190 Resolución SENASA 112/2002, (Exhibit ARG-94). 
1191 Resolución SENASA 15/2003. Créase el "Sistema de Identificación de Ganado Bovino para 
Exportación", que deberá ser aplicado en forma obligato ria en todos los campos inscriptos en el "Registro de 
Establecimientos Rurales proveedores de ganado para Fa ena de Exportación" y por los Establecimientos que se 
inscriban en el "Registro de Establecimientos Pecuario s de Engorde a Corral proveedores de bovinos para faena 
con destino a exportación, (Resoluc ión SENASA 15/2003), (Exhibit ARG-145). 
1192 Resolución SENASA 391/2003. Inscripción de "Estab lecimientos 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, (Resolución SENASA 391/2003), (Exhibit ARG-146). 
1193 Resolución SENASA 725/2005, (Exhibit USA-61). 
1194 Resolución SENASA 754/2006, (Exhibit ARG-143). 
1195 Resolución SENASA 148/2008, (Exhibit USA-62). 
1196 Resolución SENASA 810/2009. Apruébase el Certificad o Unico de Lavado y Desinfección de Vehículos 
para el Transporte de Animales Vivos, (Exhibit ARG-149). 
1197 Resolución SENASA 563/2012, (Exhibit ARG-144). 
1198 Resolución SENASA 82/2013, (Exhibit ARG-138). 
1199 SENASA, Certificado Unico de Lavado y Desinfección. Resolución N° 810/2009. Modificación , 
Resolución 238/2013 (28 May 2013). 
1200 Decreto 4238/68, (Exhibit ARG-147). 
1201 SENASA Circular No. 3307 (30 Ju ly 1997), (Exhibit ARG-151). 
1202 Resolución SENASA 15/2003, (Exhibit ARG-145). 
1203 Resolución SENASA 391/2003, (Exhibit ARG-146). 
1204 Resolución SAGPYA 310/2004. Exigencias a las que deberán ajustarse todos los establecimientos de 
faena y/o proceso y/o depósito interesados en expo rtar carnes frescas y/o me nudencias. Deróganse las 
Resoluciones Nros. 1/2003 y 339/2003 – SENASA, (Exhibit ARG-148). 
1205 SENASA Notice No. 4056 informing the minimum frequ ency of supervisory visits to all types of 
authorized establishments (4 January 2013), (Exhibit ARG-124). 
1206 Manual de Procedimientos para la Atención de un Foco. SENASA (October 2001), (Exhibit ARG-137).  
1207 SENASA, Aprueba el Programa para Investigaciones Epid emiológicas y Acciones de Contención ante 
la Presencia de Sospecha de Foco de Fiebre Aftosa , Resolución 35/2002 (4 January 2002). 
1208 Resolución SENASA 37/2002, (Exhibit ARG-142). 
1209 Resolución SENASA 35/2006, (Exhibit ARG-5). 
1210 Resolución SENASA 36/2006, (Exhibit ARG-6). 
1211 Resolución SENASA 3/2007. Plan Nacional de Conten ción de la Fiebre Aftosa, (Exhibit ARG-136). 
1212 Resolución SENASA 181/2010, (Exhibit ARG-134); 2014 Risk Analysis for Northern Argentina, 
(Exhibit USA-169), pp. 32-33. 
1213 Resolución SENASA 181/2010, (Exhibit ARG-134). In its 2006 Report, the European Commission 
referred to the special vaccination regime in force in the border protection zone as "enhanced vaccination". 
(European Commission's 2006 Report, (Exhibit ARG-111), p. 12) See also, generally, 2014 Risk Analysis for Northern Argentina, (Exhibit USA-169), pp. 32-33. WT/DS447/R 
 
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  7.469.  Between 2001 and 2010, pursuant to the 2001 National Eradication Program for FMD, a 
nation-wide vaccination campaign was put in place and reflected differences between Argentine regions in terms of ecosystems, production systems, animal movement patterns, livestock population density and commercial circuits.
1214 In areas with higher livestock production, cattle 
density and animal movements, vaccination was undertaken twice a year for all age groups of the 
bovine population.1215 In "marginal areas", vaccination was undertaken once a year and a second 
annual vaccination was undertaken only in identified risk farms.1216  
7.470.  SENASA uses tetravalent vaccines covering serotypes O 1/Campos, A 24/Cruzeiro, 
A/Argentina/2001 and C 3/Indaial.1217 These serotypes are similar to those covered by the vaccines 
administered by Uruguayan authorities in 2002.1218 The vaccines produced and administered by 
SENASA are checked by a national biosafety committee1219, and comply with the safety and 
efficacy tests established by the OIE's Regional Reference Agency at the Centro Panamericano de 
Fiebre Aftosa  (PANAFTOSA).1220 The experts noted that the fact that Northern Argentina is 
recognized by the OIE as FMD-free where vaccination is practised means that the OIE has 
determined that the vaccines used are in compliance with the requirements set forth in the 
Terrestrial Manual.1221 Moreover, the fact that SENASA's Animal Laboratory is recognized as an 
OIE Reference Laboratory for FMD has been described  by the OIE as a "very positive factor" with 
respect to the "surveillance element [of] the vaccination campaign".1222  
7.471.  The United States has stated that one of the reasons it does not accept the 
OIE categorisation of FMD-free regions with vaccination is that current FMD vaccines may have residual Non Structural Proteins (NSP) that "could result in the detection of NSP antibodies in 
vaccinated animals", thereby not allowing the di fferentiation between vaccinated and infected 
animals.
1223 With respect to the likelihood that vaccines used by SENASA in Northern Argentina 
contain residual NSP, Dr Cupit stated that the evidence on the record is insufficient to draw 
conclusions as to the manufacture and quality assurance of such vaccines.1224 He added, however, 
that the fact that a country or region is recognized by the OIE as FMD-free where vaccination is practised means that the vaccines in use there m eet the requirement that they "be purified to 
reduce NSP content".
1225 Further, in his view, "[w]ith current manufacturing techniques it is 
possible to exclude the majority of NSPs so th at they induce little, if any, NSP-specific 
antibody".1226 Thus, Dr Cupit concluded that while the level of NSP in SENASA's vaccines cannot be 
assumed to be "zero", it is reasonable to expect that such vaccines contain "little" quantities of 
such proteins.1227 In Dr Batho's view, SENASA's current vaccines "would not cause problems for 
                                               
1214 Resolución SENASA 5/2001, (Exhibit ARG-4/USA-37). 
1215 Agri-Food Health & Quality National Service, Information provided by SENA SA 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), (Information provided by SENASA (August 2002)), (Exhibit ARG-31), pp. 25, 35; Information Provided 
by SENASA (November 2002), (Exhibit USA-32); Argentina' s response to Panel question No. 1 following the 
second substantive meeting,. 
1216 Information provided by SENASA (August 2002) , (Exhibit ARG-31), pp. 25, 35; Information 
Provided by SENASA (November 2002), (Exhibit USA-32 ); Argentina's response to Panel question No. 1 
following the second substantive meeting. 
1217 Argentina's response to Panel question No. 10, paras. 26-28; 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), p. 34.  
1218 USDA/APHIS, Risk assessment: Importation of fresh (chilled or frozen) beef from Uruguay  
(November 2002), (2002 Risk Assessment for Uruguay), (Exhibit ARG-65), p. 26. 
1219 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 34. 
1220 See Dr Cupit's response to Panel question No. 13, para. 120. PANAFTOSA is a regional scientific 
centre of the Pan-American Health Organization and th e World Health Organization. It was established in 1951 
with a view to developing a programme for the contro l and eradication of FMD in the region. See PANAFTOSA 
website, Acerca de PANAFTOSA-OPS/OMS , 
http://www.paho.org/panaftosa/index.php?option=com_content&view=article&id=24&Itemid=122 (last accessed 5 December 2014). 
1221 OIE's response to Panel question No. 11, pp. 11-12. This was confirmed by Dr Bonbon in his 
responses to Panel questions. (See Dr Bonbon's response to Panel question No. 13) 
1222 Transcript of the meeting, para. 1.62. 
1223 United States' first written submission, para. 299. 
1224 Dr Cupit's response to Panel question No. 13. 
1225 Dr Cupit's response to Panel question No. 13. 
1226 Dr Cupit's response to Panel question No. 13. 
1227 Dr Cupit's response to Panel question No. 13. WT/DS447/R  
 
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  differentiating between vaccinated and infected animals".1228 Dr Bonbon stated that he does not 
know the vaccines used in Northern Argentina, but expressed the view that the fact that the region is recognized by the OIE as FMD-free where vaccination is practised means that the vaccines used "allow for appropriate surveillance of viral circulation".
1229 
7.472.  The coverage of vaccination has consistent ly exceeded 97% of all the subject population 
since 2001, and was close to or greater than 99% from 2008 to 2012.1230 In Northern Argentina, 
only authorized staff trained, registered, accr edited, supervised and/or audited by SENASA can 
administer vaccines.1231  
7.473.  All of the evidence before us thus indicates that SENASA has systematic and compulsory 
vaccination practices, uses vaccines in line with the requirements of the Terrestrial Manual, and covers virtually all of the bovi ne population in the region.  
7.474.  As to the effectiveness of vaccination in re ducing the likelihood of transmission of FMD, the 
United States argues that the vaccination of cattle against FMD "introduces risks related to the immunological response within the vaccinated herd", as "some individual animals in the herd may 
have a limited response" resulting in "partial or no immunity".
1232 The experts consulted by the 
panel noted that imports of fresh meat derived from correctly vaccinated animals "have never caused a transmission of FMD in international trade".
1233 According to Dr Cupit, the chain of events 
that might, in theory, lead to FMD transmission from meat derived from vaccinated cattle is as 
follows: (a) a vaccinated animal is FMD-infected, but the disease is not detected through ante- and post-mortem inspections; (b) the amount of FMD virus in the animal's meat is sufficient to cause transmission; and (c) the meat is consumed by FMD-susceptible animals.
1234 In Dr Cupit's opinion, 
the likelihood that event (a) described above could occur in a region that, like Northern Argentina, 
has been vaccinating for a number of years without an FMD outbreak is "quite low, if not negligible".
1235 Dr Bonbon concurred that the likelihood of such an event occurring in Northern 
Argentina is "very, very, very low", as vaccination has been practiced in the region for a long 
time.1236 He added that the probability that the entire chain of events leading to FMD-transmission 
occur is "remote".1237 The OIE also indicated that vaccination is an effective tool for the 
prevention, control and eradication of FMD.1238 
7.475.  Based on the evidence, we consider that the systematic and compulsory vaccination 
programme in Northern Argentina effectively reduces the likelihood that an animal in Northern Argentina would become infected with FMD or that if an animal became infected it would transmit 
the disease to others. 
7.6.7.4.1.5  The status of adjace nt regions with respect to FMD 
7.476.  Northern Argentina shares borders with five regions that are recognized by the OIE as 
FMD-free where vaccination is practised: (i) 765 kilometres with Bolivia (last FMD outbreak in 
2007); (ii) 1,570 kilometres with Paraguay (FMD outbreaks in 2003 and 2011); (iii) circa 980 kilometres with the Brazilian States of Paraná (last FMD outbreak in 2005) and Rio Grande do Sul 
(last FMD outbreak in 2000); and (iv) 866 kilometres with Uruguay (last FMD outbreak in 
                                               
1228 Dr Batho's response to Panel question No. 13. 
1229 Dr Bonbon's response to Panel question No. 13. 
1230 2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), pp. 33-34. 
1231 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 Di sease, Public Health  Control Systems And 
Certification Procedures (DG(SANCO)/7590/2005 – MR Final), (Exhibit USA-151), pp. 10-11; European Commission's 2006 Report, (Exhibit ARG-111) p. 10; 2014 Risk Analysis for Northern Argentina, (Exhibit USA-169), p. 33. We note that this constitutes a significant difference vis-à-vis other regions, such as Uruguay in 2002, where vaccines were distributed free of charge to farmer s, who would then administer them 
directly. (See 2002 Risk Assessment for Uruguay, (Exhibit ARG-65), pp. 26-27) 
1232 United States' first written submission, para. 299. 
1233 Transcript of the meeting, para. 1.259. 
1234 Dr Cupit's response to Panel question No. 6. 
1235 Transcript of the meeting, para. 1.274. See also Ibid. para. 1.279. 
1236 Transcript of the meeting, para. 1.277. 
1237 Transcript of the meeting, para. 1.259. 
1238 Transcript of the meeting, para. 1.65. WT/DS447/R 
 
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  2001).1239 APHIS allows imports of fresh (chilled or frozen) beef from Uruguay into the 
United States under the protocols contained in 9 CFR 94.22. It also considers the area located in Paraguay near the Argentine border to be "endemic" with respect to FMD.
1240 In 2004, SENASA 
established a 25 kilometre-wide border protection zone (cordón fronterizo A) along the border with 
Bolivia and Paraguay. In 2006, it extended the zo ne to cover the entirety of the border with 
Paraguay and part of the border with Brazil (cordón fronterizo B).1241 The border protection zones 
are subject to special sanitary controls1242, described in more detail in paragraph 7.483 below, and 
are recognized by the OIE as FMD-free where vaccination is practised since 2011.1243 
7.477.  We are aware that the fact that Northern Argentina and the other regions mentioned 
above are all recognized by the OIE as FMD-free where vaccination is practised does not mean that the OIE conducted a comparative analysis between these regions when determining their 
FMD-statuses.
1244 However, the OIE expressed the view that regions that have the same officially 
recognized FMD status "should have the same ri sk mitigation requirements applied to them"1245 in 
order to achieve the level of protection achieved by the recommendations set forth in the 
Terrestrial Code, i.e. preventing the disease in question from being introduced into the importing 
country in light of the sanitary conditions in the exporting country – what the OIE describes as an "optimal level of animal health security".
1246  
7.478.  Northern Argentina also borders three regions that are recognized by the OIE as FMD-free 
where vaccination is not practised: (i) Chile; (ii) the Brazilian State of Santa Catarina; and (iii) Patagonia.
1247 At the time of the establishment of the Panel, APHIS recognized both Chile and 
Santa Catarina as FMD-free within the meaning of 9 CFR 94.1(a)1248 subject to the mitigation 
protocols under 9 CFR 94.11. APHIS has been applying the same treatment to Patagonia 
since October 2014.1249  
7.6.7.4.1.6  The degree to which the region is  separated from adjacent regions of higher 
FMD risk through physical or other barriers 
7.479.  As noted above, Argentina shares in total circa 4,180 kilometres of borders with regions 
that are considered by the OIE to be FMD-free where vaccination is practised.1250 Out of those, 
approximately 757 kilometres of borders are not ma rked by rivers: 380 kilometres with Bolivia, 
350 kilometres with Paraguay (deviated course of the Pilcomayo river), and 27 kilometres with the 
Brazilian State of Paraná.1251 APHIS observed that some of the rivers along the border with 
Paraguay and Bolivia are navigable; th erefore animals could be shipped across.1252 It also found 
that some other rivers are dry, so animals may cross on foot.1253 Finally, we note that Northern 
Argentina's other border is with Chile a country that is recognized as FMD-free where vaccination 
is not practised. Furthermore, the border with Chile runs along the Andes mountains, which 
constitute an effective natural barrier against the cross-border movement of cattle. 
                                               
1239 2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), p. 27.  
1240 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 23. 
1241 Argentina's first written submission, para. 52; SENASA Resolution 748/2004, referred to in 2014 
Risk Analysis for Northern Argentina, (Exhibit USA- 169), p. 23; 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), (European Commission's 2004 Report), (Exhibit ARG-110), pp. 14, 16; European Commission's 2006 Report, (Exhibit ARG-111), p. 12. 
1242 See European Commission's 2006 Report, (Exhibit ARG-111), p. 12. 
1243 OIE Resolution 14 of 2011, (Exhibit ARG-12) 
1244 Transcript of the meeting, para. 1.123. 
1245 OIE's response to Panel question No. 19. 
1246 Terrestrial Code, Foreword. See also OI E's response to Panel question No. 10. 
1247 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 27. 
1248 See APHIS website, Foot-And-Mouth and Rinderpest , available at 
http://www.aphis.usda.gov/import_exp ort/animals/animal_disease_status.shtml (last accessed 27 November 
2014), incorporated in 9 CFR 94.1(a), (Exhibit ARG-64). 
1249 2014 Notice of Determination on Patagonia, (Exhibit USA-167). 
1250 See para. 7.476 above. 
1251 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 28-30. 
1252 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 42. 
1253 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 42. WT/DS447/R  
 
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  7.480.  APHIS concluded in 2005 that "[m]ost of the Argentine border is adequately protected by 
effective natural barriers to reduce the unrestricted flow of animals and animal products from areas of higher risk".
1254 
7.6.7.4.1.7  The extent to wh ich movement of animals and animal products is controlled 
from regions of higher risk, and the leve l of biosecurity regarding such movements 
7.481.  Imports of FMD-susceptible animals and an imal products into Northern Argentina occur 
through 45 international authorized border stations, which include terrestrial, maritime and fluvial 
ports, and airports.1255 SENASA officials are assisted at border control points by various security 
forces, including the National Border Patrol, the Coast Guard, and the National Aeronautical Police.
1256 In total, some 14,000 agents are assigned to managing the international border 
stations.1257 
7.482.  APHIS also addressed the management of those entry points. It noted that Argentine 
authorities follow the OIE guidelines regarding imports of products of animal origin considered as possible carriers of FMD.
1258 In particular, they evaluate the level of risk posed by such products 
and impose mitigating measures accordingly.1259 In order to be lawfully imported into Argentina, 
all products derived from FMD-susceptible animals must meet the following requirements: (i) an import permit issued by Argentine authorities; (ii) verification of the health certificate issued by 
the country of origin; (iii) physical inspection, document control and verification identity of the 
imported products; (iv) a Restricted Transit Permit for shipments of animal products to processing plants with official SENASA veterinary inspection ; (v) quarantine of live animals; (vi) sampling of 
the products by the National Residue Control in Food Products and Hygiene.
1260 In turn, an import 
permit is issued upon an analysis of: (i) the type of product that will be imported; (ii) the health 
status of the exporting region; (iii) the conditions  of the slaughtering or processing plant in the 
region of origin; (iv) the type of shipment; (v ) the possible transit of products through other 
countries; (vi) the efficiency of the border posts at  the point of entry into Argentina; and (vii) the 
expected use of the products.1261 Inspections are carried out on all products under SENASA's 
jurisdiction, and consist of questioning, observation, manual inspection of luggage and vehicles.1262 
Auxiliary means such as organic material scanners and dog squads may also be used.1263 As for 
non-commercial traffic, travellers are checked at control posts, including airports. Penalties for non-compliance with luggage restrictions include the confiscation of property.
1264  
7.483.  With regards to Northern Argentina's shared borders with Bolivia and Paraguay, the 
evidence before us indicates that in the border protection zone additional measures are in force, 
including more frequent vaccination1265, enhanced surveillance, stricter movement controls, and 
cross-border audits and exchange of information.1266 Moreover, Argentina participates in bilateral 
cooperation with Bolivia and Paraguay and in region al efforts under the auspices of PANAFTOSA. In 
this framework, according to APHIS, "Argentina incorporated border programs, guaranteeing full notification of the epidemiological situation in the country, development of the vaccination 
campaigns, joint training and reciprocal guaran tees strengthening the Regional and National 
Epidemiological Surveillance Systems".
1267  
                                               
1254 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 30-31. 
1255 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 31-32. 
1256 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 32. 
1257 2005 Risk Analysis for Patagonia South, (Exhibit  ARG-9), p. 39; 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), p. 37. 
1258 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 33. 
1259 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 33. 
1260 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 34. 
1261 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 33-34. 
1262 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 34. 
1263 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 34. 
1264 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 35-39. 
1265 See para. 7.468 above. 
1266 See European Commission's 2006 Report, (Exhibit ARG-111), p. 12; 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), p. 45. 
1267 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 26. WT/DS447/R 
 
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  7.484.  SENASA adopted precautionary measures vis-à-vis FMD outbreaks in neighbouring 
countries a number of times over the last decade. For instance, in 2005, in response to an FMD outbreak in the Brazilian States of Paraná  and Mato Grosso do Sul, SENASA implemented a 
number of preventive measures, including a sanitary alert in the national territory, an import 
prohibition on FMD-susceptible products from all of Brazil, strengthened epidemiological 
surveillance, enhanced biosecurity measures, reinforced vaccination and increased border 
controls.
1268 Further, upon receiving notice of an FMD outbreak in Paraguay in 2001, SENASA 
"immediately mobilized into action declaring a state of animal health alert throughout the country 
and strengthening all existing border crossing po ints to prevent the entry of the FMD virus into 
Argentina."1269  
7.485.  In light of the above, Dr Batho expressed the view that shared borders with countries that 
had more recent FMD outbreaks are "well-managed".1270 Dr Cupit added that Northern Argentina 
has "strict movement controls" along the "buffer/border region with Paraguay and Bolivia".1271 
Dr Bonbon stated that, because Northern Argentina is recognized by the OIE as FMD-free where 
vaccination is practised, "one can assume" that its movement control measures are of an adequate 
efficacy.1272 In 2005, APHIS concluded that in those areas on the Argentine border "where natural 
barriers do not exist, government control measures compensate".1273 The evidence on the record 
shows that, during the period leading up to the Panel's establishment, the facts underlying APHIS' 
conclusions in 2005 have not changed to an extent that would warrant a reversal of such conclusions. Indeed, Argentina submitted eviden ce to APHIS dating between 2001 and 2012 which 
indicated that the administration of international land border controls and checks on non-
commercial traffic remained essentially the same since APHIS' 2005 risk analysis.
1274  
7.486.  Based on the evidence, we consider that the movement controls and other measures 
applied by the Argentine authorities to prevent the incursion of FMD into Northern Argentina 
effectively protect the region from ingress of animals and animal products from regions of higher 
FMD-risk. 
7.6.7.4.1.8  Livestock demographics an d marketing practices in the region 
7.487.  As the experts have indicated, concentration of cattle is a relevant factor for the risk of 
spread of FMD1275; the lower the density of the susceptible animal population, the lower the risk of 
spread of the disease.1276 Northern Argentina has a surface area of approximately 1,106,800 
square kilometres and a cattle population of circa 55,000,000.1277 Thus, the average density of 
cattle in Northern Argentina is about 49.6 animals per square kilometre. By comparison, Uruguay 
has a surface area of circa 176,200 square kilome tres and a cattle population of approximately 
10,400,000.1278 Thus, Uruguay has a cattle density of abou t 59 animals per square kilometre. The 
experts noted that Northern Argentina also has larger herds than Uruguay, meaning that cattle in 
the region are clustered in larger groups.1279 While the concentration of animals in a herd may 
make it easier for FMD to spread within that herd, a greater geographical dispersal of herds 
facilitates veterinary control and containment in the event of an FMD outbreak.1280 In light of the 
above, we consider that the cattle demographics in the region do not constitute a factor of increased risk of spread of FMD in and of themse lves or as compared to other regions such as 
Uruguay.  
                                               
1268 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 27. 
1269 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 82. 
1270 Dr Batho's response to Panel question No. 63. 
1271 Dr Cupit's response to Panel question No. 36. 
1272 Dr Bonbon's response to Panel question No. 36 (ref erring to his response to  Panel question No. 34). 
1273 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 30-31. 
1274 2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), p. 36-50. 
1275 Dr Bonbon's response to Panel question No. 63. 
1276 Dr Batho's response to Panel question No. 50. 
1277 2014 Risk Analysis for Northern Argentina, (Exh ibit USA-169), p. 51; Argentina's first written 
submission, para. 23. 
1278 United States' first written submission, para. 308. 
1279 Dr Batho's response to Panel question No. 63; Dr  Bonbon's response to Panel question No. 63.  
1280 For instance, as noted by Dr Cupi t, active surveillance is properly performed at the herd level. (See 
Dr Cupit's reponse to Panel question No. 27) Further, according to Dr Bonbon, containment measures in the case of an FMD outbreak are aimed, inter alia , at preventing "herd to herd tr ansmission through aerosols or 
direct or indirect contacts ". (Dr Bonbon's response to Panel question No. 1) WT/DS447/R  
 
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  7.488.  As to market practices in Northern Argentina, there are over 150 SENASA-approved 
slaughterhouses in Northern Argentina.1281 In 2005, APHIS reviewed the biosecurity controls 
established by SENASA in order to accredit a facility. Such controls include that: (i) animals be kept in pens and not be allowed to exit the facility once they have entered it; (ii) all effluent be 
treated by separating solids, fats, liquids, and ch lorinates out before releasing them to the general 
sewage system; (iii) effluents from the sanitary complex be individually treated by disinfection 
before being dumped with the rest of the common, treated effluents; and (iv) raw slaughter and 
slaughter pathology wastes be processed into nonedible by-products.
1282  
7.489.  APHIS further observed that all animals receive an ante-mortem inspection by a SENASA 
technician upon arrival at the slaughter facility, as well as a post-mortem inspection after slaughter by SENASA field veterinarians and plant staff.
1283 Further, all carcasses are subject to 
deboning, consisting of the removal of bone and blood clots, under the supervision of the quality 
control personnel.1284 They are then matured for a minimum of 24 hours at a temperature of 2 to 
10 C. In the event that, at the end of the process,  the pH is above 5.9, the carcass is separated 
from the export beef and only used for domestic consumption.1285 According to the European 
Commission's 2006 Report, "[t]he maturation of beef was correctly carried out and well 
documented in the establishments visited"1286, and "[t]he official controls and records for ante-
mortem, post-mortem and maturation were completed and adequate".1287 
7.490.  In its 1997 risk assessment for Argentina, APHIS assumed that fresh beef deboned and 
matured to pH 5.8 poses "negligible risk", as the FMD virus does not survive such processes.1288 
Dr Cupit observed that, based on the evidence on  the record, slaughterhouse procedures used in 
Northern Argentina, in particular requirements for deboning, maturation, and ante- and post-
mortem inspections, conform to OIE requirements1289 and "should be as efficacious today as they 
were in 1997".1290 Dr Batho stated that there is no reason  to believe that such procedures were 
any less effective at the time of the establishmen t of the Panel than they were in 1997, when 
Argentina was allowed to export fresh (chilled or frozen) beef to the United States.1291 Dr Bonbon 
took the view that the evidence on the record shows that "the capacities of the Argentinian 
veterinary services, includ[ing] at slaughterhouse[s], have improved since 1997".1292  
7.491.  We note that, as of 2005, deboned fresh (chilled or frozen) beef was being imported into 
Patagonia South from areas in Northern Argentina for local consumption. APHIS found that such 
beef presented "a low risk of introducing th e FMD virus into the export region" because, inter alia , 
"it must go through a maturation process that kills the FMD virus".1293 Dr Cupit observed that 
"matured, deboned fresh beef from [N]orthern Arge ntina [has] a very low risk of introducing the 
FMDV to other export markets as it does to Patago nia", and "would pose a similar or identical risk" 
irrespective of the market of destination.1294 This further supports a conclusion that 
                                               
1281 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 58. 
1282 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 46-47; 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), pp. 58-59. 
1283 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 47. In 2005, APHIS found that no one 
was specifically assigned to check the feet post-morte m. In 2014, conversely, APHIS found that veterinarians 
specifically check the feet, muzzle, and tongue for ve sicular lesions. (See 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), p. 60) 
1284 See Resolución SENASA 58/2001, (Exhibit USA-59),  Article 2.5. See also 2014 Risk Analysis for 
Northern Argentina, (Exhibit USA-169), p. 60. 
1285 See Resolución SENASA 58/2001, (Exhibit USA-59),  Article 2.5. See also 2014 Risk Analysis for 
Northern Argentina, (Exhibit USA-169), p. 60. 
1286 European Commission's 2006 Report, (Exhibit ARG-111), p. 15. See also European Commission's 
2004 Report, (Exhibit ARG-110), p. 27. 
1287 European Commission's 2006 Report, (Exhibit ARG-111), p. 16. See also European Commission's 
2004 Report, (Exhibit ARG-110), p. 27. 
1288 USDA/APHIS, Risk Assessment: Argentine Beef (June 1997), (Exhibit ARG-27), p. 5. 
1289 Dr Cupit's response to Panel question No. 44. 
1290 Dr Cupit's response to Panel question No. 44. 
1291 Dr Batho's response to Panel question No. 44. 
1292 Dr Bonbon's response to Panel question No. 44. 
1293 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 71. See also Dr Batho's response to 
Panel question No. 40. 
1294 Dr Cupit's response to Panel question No. 46. We do note that Dr Cupit was privy to both the 2005 
Risk Assessment for Patagonia South and the 2014 Risk Assessment for Patagonia when he answered this 
question. However, we also note that APHIS' findings from 2005 are identical to those in the 2014 document 
 WT/DS447/R 
 
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  slaughterhouse practices in Northern Argentina, and in particular deboning, maturation, and ante- 
and post-mortem inspections, are effective tools which significantly reduce of the risk of FMD-transmission from fresh (chilled or frozen) beef.  
7.6.7.4.1.9  The type and extent of  disease surveillance in the region 
7.492.  Since the July 2000 FMD outbreaks, serologi cal sampling (active surveillance) in Argentina 
has been conducted at least once a year, pursuant to the 2001 National Eradication Plan for FMD.
1295 The sampling is conducted according to a two-stage strategy at the herd level and the 
individual animal level, tailored to each regi on's number and type of herds, animal movement 
patterns, geographical and climatic conditions, and disease history.1296 The system allows the early 
detection of FMDV at a statistical confidence level of 95%.1297 In 2005, APHIS considered the 
sampling design to be "both valid and efficient".1298 Although, the objectives, approaches, and 
intensity may change slightly from year to year, the basic sampling approach is defined in the 
National Eradication Plan, which remains the same since it was adopted.1299  
7.493.  Dr Cupit observed that Argentina has "a well-developed passive and active surveillance 
plan for FMD that has been constantly developed and modified since the FMD outbreaks of 2000-
2002".1300 Further, according to Dr Cupit, "[t]he testing system and sampling design of Argentina's 
passive and active surveillance system for FMD appear to conform to the guidelines in the 
[Terrestrial] Code and Manual".1301 Indeed, the fact that the OIE recognized Northern Argentina as 
FMD-free where vaccination is practised means that the active and passive surveillance measures in force in the region meet the requirements set forth in Articles 8.5.42-8.5.47 and 8.5.49 of the Terrestrial Code.
1302 This was confirmed by Dr Bonbon in his responses to Panel questions.1303 
Other evidence on the record does not contradict such conclusions. The European Commission's 
reports from 2004-2006 noted some shortcomings in  the serological surveillance conducted by 
SENASA in Northern Argentina.1304 Despite such deficiencies, the Commission concluded that 
SENASA's ability to prevent and control FMD was "satisfactory"1305 and progressively reopened its 
market to imports of fresh (chilled or frozen ) beef from Northern Argentina according the 
FMD history of each region.1306 
7.6.7.4.1.10  Diagnostic laboratory capacity 
7.494.  In its 2005 risk assessment, APHIS reviewed a number of elements in connection with the 
organization, structure, and capacity of laboratories in Argentina. It found, inter alia , that 
Argentine laboratories use an information management system for recording samples and for 
typing laboratory results to be analysed by epidemiologists. APHIS described the system as 
"effective and adequate" and the staff as "very capable" in managing it.1307 It also observed that 
the National Reference Laboratory was, at that time, working towards accreditation under 
                                                                                                                                               
(see 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 71 and 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), pp. 30, 69.) Thus, we have no reason  to believe that Dr Cupit's evaluation would be any 
different for the period from 2005 up to the date of establishment of the Panel.  
1295 2005 Risk Analysis for Patagonia South, (Exh ibit ARG-9), p. 49; Resolución SENASA 5/2001, 
(Exhibit ARG-4/USA-37). 
1296 2005 Risk Analysis for Patagonia South, (Exhibit  ARG-9), p. 49; 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), p. 51. 
1297 2005 Risk Analysis for Patagonia South, (Exhibit  ARG-9), p. 49; 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), p. 64. 
1298 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 49. 
1299 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 64. 
1300 Dr Cupit's response to Panel question No. 34. 
1301 Dr Cupit's response to Panel question No. 34. 
1302 See OIE's response to Panel question No. 17.  
1303 See Dr Bonbon's response to Panel question No. 34, para. 280. 
1304 See e.g. European Commission's 2004 Report , (Exhibit ARG-110), pp. 13-16; European 
Commission's 2006 Report, (Exhibit ARG-111), p. 11. 
1305 Dr Cupit's response to Panel question No. 31. 
1306 See e.g. Decision of the European Commission No. 2002/45/EC (22 January 2002), 
(Exhibit ARG-114); Decision of the European  Commission No. 2002/68/EC (30 January 2002), 
(Exhibit ARG-108); Decision of the Europe an Commission No. 2002/198/EC (7 March 2002), 
(Exhibit ARG-109); Commission Regulation No. 206/2010, (Exhibit ARG-1). 
1307 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 65. WT/DS447/R  
 
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  international standard ISO 17025.1308 APHIS also reviewed the collection, treatment, and analysis 
of diagnostic samples, as well as the technological capability of the laboratories to conduct diagnostic tests.
1309  
7.495.  APHIS concluded that "Argentina has the di agnostic capabilities to adequately te st samples 
for the presence of the FMD virus", that "quality control activities within the laboratories are 
sufficient", that "laboratory equipment is routinely monitored and calibrated", that "sufficient staff is available", and that "there is an effective and efficient recordkeeping system for storage and 
retrieval of data".
1310 We do not see any evidence on the record indicating that the facts 
underlying APHIS' 2005 conclusions changed in a way that would warrant a reversal of such conclusions during the period leading up to the Panel's establishment. Rather, in 2006, the National Reference Laboratory was accredited under international standard ISO 17025
1311 and the 
laboratory network acquired the capacity to run Polymerase Chain Reaction (PCR) tests for FMD1312 
– the lack of which APHIS had found to be a gap in 2005.1313 Finally, the fact that SENASA's 
Animal Laboratory is recognized as an OIE Reference Laboratory for FMD has been described by 
the OIE as a "very positive factor".1314 Indeed, in the OIE's view, such a recognition entails that 
the laboratory "is capable of providing diagnostic services of a … world level" and to "provide a service at no charge to other countries".
1315 
7.6.7.4.1.11  Policies and infrastruc ture for animal disease control 
7.496.  Finally, in its 2005 risk assessment, APHI S reviewed several aspects of the regulatory 
framework in force in Northern Argentina to ensure disease surveillance and the ability to deal with possible FMD outbreaks in the region. It observed that the law requires immediate and mandatory 
reporting of FMD, under penalty of severe fines applied by SENASA to any individual or company 
that fails to comply.
1316 Producers, animal caretakers, transporters and other people observing 
animals on a daily basis were found to bewell aware of FMD symptoms and reporting 
requirements.1317 Veterinarians also take part in passive surveillance by conducting routine 
examinations of livestock during wool-industr y related tasks, fairs, and after slaughter.1318 APHIS 
then proceeded to review SENASA's authority to ta ke prompt action in case of an FMD outbreak, 
including stamping-out of all the affected and contact animals1319, as well as training of SENASA 
officials.1320  
7.497.  Based on the above, APHIS concluded th at SENASA "has the infrastructure and legal 
authority to declare an emergency and take appr opriate action in case of an [FMD] outbreak".1321 
We note that these conclusions mirror those reac hed by APHIS with respect to SENASA's capacity 
to prevent and control FMD discussed in paragraph 7.461 above.1322 Further, the European 
Commission's 2006 Report confirms that the procedures in place "permit[] a rapid and effective 
response to [an] FMD outbreak".1323  
7.6.7.4.1.12  Conclusions on the sc ientific evidence on the record 
7.498.  The evidence on the record demonstrates that Northern Argentina has the necessary 
veterinary capacity and infrastructure to prevent and control FMD in its own territory and the 
                                               
1308 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 65. 
1309 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 67. 
1310 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 68. 
1311 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 76. 
1312 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 76. 
1313 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 66-67. 
1314 Transcript of the meeting, para. 1.62.  
1315 Transcript of the meeting, para. 1.62.  
1316 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 68. 
1317 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 68. 
1318 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 68. 
1319 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 68-69. 
1320 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 70. 
1321 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 70. 
1322 APHIS' 2014 risk analysis updates and confirms, fo r the most part, its findings made in 2005. (See 
2014 Risk Analysis for Northern Arge ntina, (Exhibit USA-169), pp. 78-82) 
1323 European Commission's 2006 Report, (Exhibit ARG-111), p. 20. WT/DS447/R 
 
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  capacity to prevent incursions of the disease from  neighbouring regions. Such capacity stems from 
a panoply of interlocking and overlapping sanitary measures aimed at reducing the risk of entry of 
FMD in the region, including, inter alia : adequate active and passive surveillance programmes, 
systemic and compulsory vaccination, accurate tracking and identification of animals, effective 
controls on the movement of FMD-susceptible animals from regions of higher FMD risk, 
appropriate collection of samples and laboratory capacity, efficacious mitigating measures at slaughterhouses such as deboning and maturation, and comprehensive control policies in case of 
an outbreak.  
7.499.  We now turn to assessing whether the alternative measures identified by Argentina, if 
applied to imports of fresh (chilled or frozen) beef from Northern Argentina, would achieve the 
United States' ALOP for FMD, reca lling that we have found that th e ALOP is between low and zero. 
7.6.7.4.1.13  Whether the recommendations und er Article 8.5.23 of the Terrestrial Code 
would achieve the United States' ALOP if a pplied to imports from Northern Argentina 
7.500.  The first alternative measure identified by Argentina is the application of Article 8.5.23 of 
the Terrestrial Code, which recommends that for importation of fresh meat of cattle and buffaloes 
(excluding feet, head and viscera) from FMD- free countries or zones where vaccination is 
practised, the veterinary authorities of the importing Member: 
[R]equire the presentation of an international veterinary certificate attesting that the 
entire consignment of meat comes from animals which: 
(1) have been kept in the FMD free country or zone where vaccination is practised, 
or which have been imported in accordance with Article 8.5.12, Article 8.5.13 or 
Article 8.5.14; 
(2)  have been slaughtered in an approv ed abattoir and have been subjected to 
ante- and post-mortem inspections for FMD with favourable results. 
7.501.  As the language above indicates Article 8.5.23 recommends that imports of fresh (chilled 
or frozen) beef be allowed, subject to mitigating protocols centred on movement controls, the approval of slaughter facilities, and ante- and post-mortem inspections. 
7.502.  Argentina does not put forward any specific arguments supporting its position that the 
recommendations contained in Article 8.5.23, if applied to imports from Northern Argentina, would achieve the United States' ALOP.
1324 Moreover, Argentina itself appears to accept that the 
recommendations contained in Article 8.5.23 of the Terrestrial Code would not achieve the 
United States' ALOP when it states that the United States has rejected the alternative because it 
claims to apply a higher level ALOP and accepts th e United States' right to apply a higher standard 
that the OIE protocol for fresh beef from areas that are FMD-free where vaccination is 
practised.1325  
7.503.  To recall, the United States stated that its ALOP for FMD is higher than that achieved by 
the Terrestrial Code.1326 We concluded that the United States measures are not based on the 
Terrestrial Code precisely because the United States does not consider regions recognized by the 
OIE as FMD-free where vaccination is practised to be FMD-free within the meaning of 9 CFR 94.1(a), and therefore does not allow import s of fresh (chilled or frozen) beef from such 
regions.
1327 Although the United States makes an exception to this general rule for Uruguay, those 
imports are subject to the mitigating protocols under 9 CFR 94.22, which Argentina has raised as 
                                               
1324 Argentina's first written submission, paras. 310-317 in the section entitled "Alternative Measures 
Would Achieve the Appropriate Level of Sanitary Protecti on" contains no reference to  Article 8.5.23. See also 
Argentina's response to Panel question No. 44 following the first substantive meeting; and Argentina's second 
written submission, para. 156. 
1325 Argentina's second written submission, paras. 155 and 158. 
1326 See e.g. United States' first written submission, para. 299; United States' response to Panel 
question No. 19 following the first substantive meeting. 
1327 See para. 7.241 above.  
 WT/DS447/R  
 
- 170 - 
 
  its second proposed alternative measure. Furthe rmore, Argentina acknowledges that the protocols 
applied to Uruguay are more stringent than Article 8.5.23 and are substantively similar to the protocols in Article 8.5.25 for imports of fresh beef from areas that are FMD-infected but undergoing a vaccination program. Such measures are designed to mitigate a risk higher than that 
of products from an FMD-free region which practises vaccination.  
7.504.  In light of the above, and absent any specific arguments on Argentina's part, we consider 
that Argentina failed to demonstrate that such recommendations would achieve the United States' 
ALOP for FMD if applied to imports of fresh (chi lled or frozen) beef from Northern Argentina. 
7.6.7.4.1.14  Whether the miti gating protocols set forth in 9 CFR 94.22 would achieve 
the United States' ALOP if applied to imports from Northern Argentina 
7.505.  The second alternative measure Argentina identified is the application of the mitigating 
protocols set forth under 9 CFR 94.22 to its imports of fresh (chilled or frozen) beef. Argentina 
contends that because APHIS applies the protocols under 9 CFR 94.22 to imports of fresh (chilled or frozen) beef from Uruguay, the same protocols would achieve the United States' ALOP if applied 
to Northern Argentina, as the two regions have "essentially the same" FMD situation.
1328 The 
United States responds that the fact that the two regions share the same OIE FMD-status is not dispositive of whether products ther efrom pose the same level of risk.
1329  
7.506.  We agree with the United States that the mere fact that the OIE recognizes both Northern 
Argentina and Uruguay as FMD-free where vaccination is practised is not, in and of itself, dispositive as to whether the protocols applied to Uruguay under 9 CFR 94.22 would achieve the United States' ALOP if applied to Northern Argentina.
1330 Rather, mindful of the Appellate Body's 
guidance in Australia – Apples , we must conduct our own assessment of whether the protocols 
under 9 CFR 94.22 would bring the risk posed by im ports of fresh (chilled or frozen) beef from 
Northern Argentina down to a level that achieves the United States' ALOP.  
7.507.  Table 5 below lists the protocols under 9 CFR 94.22 and provides a description, based on 
the evidence on the record where relevant, of th e effectiveness of each mitigating measure in 
reducing the risk of FMD-introduction. 
Table 5: Protocols under 9 CFR 94.22 and thei r effectiveness in mitigating FMD risk 
Protocols under 9 CFR 94.221331 Effectiveness in reducing risk 
The meat is beef from bovines that have been born, 
raised, and slaughtered in th e region constituting the 
object of the exportin g Member's request. This requirement reduces th e likelihood of fresh beef 
from other regions that are FMD-infected being 
imported into the region subject to the exporting Member's request, and from the latter region into the United States.
1332 
Foot-and-mouth disease has not been diagnosed in in 
the region subject to the exporting Member's request 
within the previous 12 months.  This requirement reduces the likelihood of FMD being 
present in the territory of the region subject to the 
exporting Member's request, and therefore in animals 
slaughtered for the production  of fresh beef that is 
then exported to the United States.1333 
                                               
1328 Argentina' first written submission, paras. 3 12-316; Argentina's opening statement at the first 
meeting of the Panel, para. 46; Argentin a's second written submission, para. 173. 
1329 United States' first written submission, para. 297; United States' second written submission, 
paras. 108-109. 
1330 This is in line with our finding that the import  measures and mitigating protocols recommended by 
the Terrestrial Code exist and can operate independently of  the OIE's official recognition of disease status for a 
certain country or region. (See para. 7.238 above). 
1331 9 CFR 94.22, (Exhibit ARG-64). 
1332 Dr Cupit's response to Panel question No. 61; Dr Batho's response to Panel question No. 61, 
para. 488; Dr Bonbon's response to Panel question No. 61. 
1333 Dr Cupit's response to Panel question No. 61; Dr Bonbon's response to  Panel question No. 61 WT/DS447/R 
 
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  Protocols under 9 CFR 94.221331 Effectiveness in reducing risk 
The meat comes from bovines that originated from 
premises where foot-and-mouth disease has not been present during the lifetime of any bovines slaughtered for the export of beef to the United States. Provided that the surveillance system is appropriate 
to detect cases of FMD and accurate records are kept, this requirement reduces the likelihood of cattle being sourced from properties where FMD is present, thus reducing the risk that FMD-infected cattle be slaughtered for export to the United States.
1334 
The beef came from bovines that were moved directly 
from the premises of origin to the slaughtering 
establishment without any contact with other animals. This requirement reduces the likelihood of cattle 
destined to slaughter for export coming in contact 
with other cattle of higher potential risk, thus 
reducing the likelihood of FMD-infected beef being 
imported into the United States.1335 
The beef came from bovine s that received ante-
mortem and post-mortem ve terinary inspections, 
paying particular attention to the head and feet, at 
the slaughtering establishment, with no evidence found of vesicular disease. Ante-mortem inspections allow the detection of early 
FMD symptoms (such as dullness, poor appetite, a 
rise in temperature to 40-41° C, salivation, lethargy, and lameness) as well as advanced symptoms (such as vesicles appearing in side the mouth, on the 
tongue, cheeks, gums, lips, palate, between the claws of the feet and along the coronary band).
1336 Post-
mortem inspections at slaughterhouses provide further confidence that slaughtered animals do not present vesicular signs of FMD.
1337 However, ante- 
and post-mortem inspections are not likely to allow 
detection of FMD in asymptomatic animals.1338 
The beef consists only of bovine parts that are, by 
standard practice, part of th e animal's carcass that is 
placed in a chiller for maturation after slaughter. 
Bovine parts that may not be imported include all 
parts of bovine heads, feet, hump, hooves, and 
internal organs. The sites of localisation of the FMD virus in carrier 
animals are the feet, throat and viscera. Therefore, 
removing such tissues reduce s the risk that FMD virus 
will be present in exported fresh meat.1339 The 
removal of feet, head and viscera is a requirement 
under both Articles 8.5.23 and 8.5.25 of the 
Terrestrial Code.1340 
Deboning : All bone and visually identifiable blood 
clots and lymphoid tissue have been removed from the beef. 
Maturation : The beef came from bovine carcasses 
that were allowed to maturate at 40 to 50° F (4 to 10° C) for a minimum of 36 hours after slaughter and that reached a pH of 5.8 or less in the loin muscle at 
the end of the maturation period. Measurements for 
pH must be taken at the middle of both longissimus 
dorsi muscles. Any carcass in which the pH does not 
reach 5.8 or less may be allowed to maturate an additional 24 hours and be retested, and, if the carcass still has not reached a pH of 5.8 or less after 60 hours, the meat from the carcass may not be exported to the United States. The parties agree that, if properly conducted, 
deboning and maturation greatly reduce the risk of FMD being transmitted throug h trade of fresh (chilled 
or frozen) beef.
1341 The experts consider that the risk 
of FMD-introduction from imports of deboned and matured beef is negligible. According to Dr Cupit, deboning and maturation of beef is "extremely 
effective", as evidenced by the fact that, between 
2004 and 2013, the European Union imported 535,000 tonnes of such beef from Argentina with no FDM outbreaks.
1342 Drs Batho and Bonbon noted that, 
to their knowledge, there is no evidence that imports of deboned and matured fresh beef ever resulted in the transmission of FMD.
1343 In Dr Bonbon's view, 
deboning and maturation, if properly performed, are sufficient, in and of themselves, to "completely eliminate [the] virus from [the] meat of an infected animal".
1344 
                                               
1334 Dr Cupit's response to Panel question No. 61; Dr Bonbon's response to  Panel question No. 61. 
1335 Dr Cupit's response to Panel question No. 61; Dr Bonbon's response to  Panel question No. 61. 
1336 Dr Cupit's response to Panel question No. 9; Dr Bonbon's response to Panel question No. 61. 
1337 Dr Cupit's response to Panel question No. 61; Dr Bonbon's response to  Panel question No. 61. 
1338 Dr Cupit's response to Panel question No. 31; Dr Bonbon's response to  Panel question No. 16. 
1339 OIE's response to Panel question No. 26; Dr Cupi t's response to Panel question No. 61; Dr Batho's 
response to Panel question No. 61; Dr Bonb on's response to Panel question No. 61. 
1340 OIE's response to Panel question No. 26. 
1341 Argentina's response to Panel question No. 9 follo wing the first substantive meeting; United States' 
response to Panel question No. 8 follo wing the first substantive meeting. 
1342 Transcript of the meeting, para. 1.197. See also D. J. Paton, M. Sinclair, R. Rodríguez, Qualitative 
assessment of the commodity risk fact or for spread of foot-and-mouth di sease associated with international 
trade in deboned beef, OIE ad hoc Group on Trade in  Animal Products (October 2009), (Exhibit ARG-128), 
p. 19. 
1343 Dr Batho's response to Panel question No. 7; Dr Bonbon's response to Panel question No. 7. 
1344 Dr Bonbon's response to Panel question No. 41. WT/DS447/R  
 
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  Protocols under 9 CFR 94.221331 Effectiveness in reducing risk 
The beef has not been in contact with meat from 
regions other than those li sted in 9 CFR 94.1(a)(2). This requirement reduces the likelihood that, after 
slaughter, fresh beef dest ined for export to the 
United States is comming led with beef from other 
regions that are FMD-infe cted, thus reducing the 
likelihood of cross-contamination.1345 
An authorized veterinary official of the authorities of 
the region certifies on the foreign meat inspection 
certificate that the above conditions have been met. For Dr Cupit, this requirement is aimed at 
strengthening the oversight of control processes in 
order "to ensure compliance".1346 According to 
Dr Batho, the requirement is "normal practice" and is supported by the OIE, in that it "gives trust and confidence to the importing country".
1347 In 
Dr Bonbon's view, the requirement is aimed at "guaranteeing the correctne ss of certification and 
reducing the risk of non-implementation of the measures".
1348 
The establishment in which the bovines are 
slaughtered allows periodic  on-site evaluation and 
subsequent inspection of its facilities, records, and 
operations by an APHIS representative.  The possibility for the importing Member to conduct 
periodical audits ensures that the mitigating measures 
in force in the region of origin are properly 
implemented.1349 
 
7.508.  The protocols set forth in 9 CFR 94.22 provide several layers of mitigating measures covering virtually all the stages of the production of fresh (chilled or frozen) beef, from the birth 
and raising of cattle to the processing (deboning an d maturation) of the final product. If properly 
implemented by the authorities of  the exporting Member, such measures operate in concert to 
effectively minimize the risk of FMD-introduction fr om imports of fresh (chilled or frozen) beef into 
the territory of the United States.
1350 Indeed, according to the experts, some of the protocols 
under 9 CFR 94.22, most notably those relating to the deboning and maturation of carcasses in slaughterhouses, are highly effective in reducing th e risk of FMD-introduction from imports of fresh 
(chilled or frozen) beef even if considered  in isolation from the other measures.  
7.509.  In paragraph 7.498 above, we found, based on the evidence on the record, that Northern 
Argentina has the necessary veterinary capacity and infrastructure to prevent and control FMD in its own territory and the capacity to prevent incurs ions of the disease from neighbouring regions. 
Such capacity stems from a panoply of interlocking and overlapping sanitary measures, some of 
which mirror the protocols set forth in 9 CFR 94.22 (e.g. insulation of cattle from FMD-susceptible animals at a higher risk, ante- and post-mortem inspections, deboning and maturation). Given the 
credibility of Northern Argentina's sanitary structures, we see no evidence on the record indicating 
that SENASA would be unable to adopt and properly implement the protocols in question.  
7.510.  Based on the foregoing, we conclude, as a matter of fact, that applying the protocols in 
9 CFR 94.22, to imports of fresh (chilled or frozen) beef from Northern Argentina, would achieve 
the United States' ALOP for FMD, which we described as being between low and zero risk.
1351 
                                               
1345 Dr Cupit's response to Panel question No. 61; Dr Batho's response to Panel question No. 61; 
Dr Bonbon's response to Panel question No. 61. 
1346 Dr Cupit's response to Panel question No. 61. 
1347 Dr Batho's response to Panel question No. 61.  
1348 Dr Bonbon's response to Panel question No. 61. 
1349 Dr Cupit's response to Panel question No. 61; Dr Batho's response to Panel question No. 61; 
Dr Bonbon's response to Panel question No. 61. 
1350 In this respect, we note that  the protocols in 9 CFR 94.22 do not include requirements as to the 
vaccination of FMD-susceptible animals. This is because, the United States explained, vaccination alone is not sufficient to reduce  the risk of FMD-introduction from imports of  fresh (chilled or frozen) beef. (See e.g. 
United States' first written submission, para. 299; United  States' response to Panel question No. 19 following 
the first substantive meeting)  
1351 See para. 7.387 above. WT/DS447/R 
 
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  7.6.7.4.1.15  Conclusions on wh ether the United States' prohib itions on imports of fresh 
(chilled or frozen) beef from Northern Argentina are more re strictive than required to 
meet the United States' ALOP 
7.511.  The United States does not dispute that the protocols set forth in 9 CFR 94.22 are 
reasonably available to the United States taking into account technical and economic feasibility. 
There is also no dispute that they would be significantly less trade-restrictive than the United States' prohibitions in place at the time of  the establishment of the Panel. Furthermore, we 
have concluded that the application of the protocols set forth in 9 CFR 94.22 to imports of fresh 
(chilled or frozen) beef from Northern Argentina would achieve the United States' ALOP. Therefore, the United States' prohibitions challenged by Argentina are more restrictive than required to achieve the United States' ALOP, and thus are inconsistent with Article 5.6 of the SPS Agreement. 
7.6.7.4.2  The proposed alternatives to th e United States' prohibition on imports of 
FMD-susceptible animals and animal products from Patagonia 
7.512.  Similar to our approach in paragraph 7.454 above, we find it useful to begin our 
assessment of whether the mitigating effects of the proposed measures would permit imports of 
FMD-susceptible animals and animal products from Patagonia to achieve the United States' ALOP by reviewing the evidence on the record in ligh t of the 11 factors APHIS used to evaluate the 
FMD-status of an applicant country or region at the time Argentina filed its request.  
7.6.7.4.2.1  The authority, organization and infrastructure of the veterinary services 
organization in the region 
7.513.  As discussed in paragraphs 7.455-7.460 above, in its 2005 risk analysis for Patagonia 
South APHIS reviewed numerous aspects relating to SENASA's authority, organization, 
infrastructure and capacity to prevent and control FMD in the whole Argentine territory, including Patagonia. Its review focused, in particular, on the legal and administrative sources of SENASA's 
authority, SENASA's financial and human resources, the role of regional offices and local 
veterinarians in the identification of premises and the tracking of FMD-susceptible animals, the controls on the movement of FMD-susceptible animals throughout the Argentine territory, and 
SENASA's regulations concerning swill feeding.  
7.514.  Based on its analysis of such factors, APHIS concluded that "Argentina has the veterinary 
and regulatory infrastructure to adequately monitor and control any incursion of FMD into the country".
1352 Specifically, APHIS considered that "[t]here is sufficient monitoring of animal 
premises and movements to permit effective surveillance and detection programs that would result 
in sufficient administration of eradication efforts, if needed".1353 APHIS also "expressed confidence" 
that SENASA's delays in reporting the 2000-2001 FMD outbreaks would not occur again if 
analogous events were to occur today.1354 
7.515.  The facts underlying laws and regulati ons governing SENASA's authority, organization, 
infrastructure, and capacity to prevent and control FMD in the Argentine territory did not change 
from 2005 until the Panel's establishment.1355 Dr Batho noted, that SENASA's infrastructure 
                                               
1352 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 23. 
1353 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 23. 
1354 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 23. 
1355 APHIS' 2014 risk analysis for Patagonia as a whole (comprising of both Patagonia South and 
Patagonia North B) acknowledged that the laws and re gulations governing SENASA and its structure have 
remained unchanged since the 2005 risk assessment. (2014 Risk Analysis for Patagonia, (Exhibit USA-133), pp. 10-17) Further, APHIS noted that the laws and regulations governing the licensure, qualifications, and 
training of veterinarians are unchanged from the 2005 risk assessment. (See Ibid. pp. 19-20) Argentina also submitted information to APHIS dating between 2002 and 2009, which indicated that identification of premises and the census of FMD-susceptible animals by SE NASA had not essentially changed since the 2005 risk 
assessment. (See Ibid. p. 41) Moreov er, SENASA provided information to APHIS covering the period between 
2003 and 2007, which indicated that movement controls in Argentina remained es sentially unchanged since 
the 2005 risk assessment. (See Ibid. pp. 43-44) Finally, AP HIS' 2014 risk analysis for Patagonia indicates that 
the laws and regulations governing swill feeding are unchanged from the 2005 risk analysis. (See Ibid. 
pp. 21-22) WT/DS447/R  
 
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  "improved dramatically" since 2005 in several respects.1356 For instance, SENASA's 2013 annual 
budget was 1.3 billion pesos (equivalent to approximately USD 200 million)1357, i.e. over five times 
more than in 2005. SENASA's personnel doubled  from 2005 to 2013. 1358 Further, in 2006 SENASA 
instituted a compulsory cattle identification programme, requiring that all calves born 
after September 2007 carry official tags.1359 
7.516.  Other evidence on the record is consistent with APHIS' 2005 conclusions. The European 
Commission's most recent evaluation of the FMD situation Argentina available on the record (dated 
2006) concludes that the Argentine veterinary authority "is well organised".1360 In its evaluations 
over the period 2002-2006, the Commission did identify some "deficiencies" with respect e.g. to animal identification and movement controls.
1361 Despite such deficiencies, the Commission 
concluded that SENASA's ability to prev ent and control FMD was "satisfactory"1362 and reopened its 
market to imports of FMD-susceptible animals an d animal products from Patagonia North B in 
2008.1363 In his responses to Panel questions, Dr Cupit confirmed that SENASA imposes "strict 
movement controls that operate within Argentina especially between the FMD-free areas with and 
without vaccination"1364, i.e. Northern Argentina and Patagonia.  
7.517.  Thus, the evidence on the record indicate s that, at the time of the establishment of the 
Panel, SENASA had the necessary veterinary and regulatory infrastructure to adequately monitor 
and control FMD in the Patagonia region. 
7.6.7.4.2.2  Disease st atus of the region 
7.518.  The last FMD outbreak in Patagonia South occurred in 1976.1365 In 2002, the 
OIE recognized the region as FMD-free where vaccination is not practised.1366 The last 
FMD outbreak in Patagonia North B took place in 1994.1367 The region was recognized by the 
OIE as FMD-free where vaccination is not practised in 2007.1368  
7.6.7.4.2.3  The extent of an active disease control program, if any, if FMD is known to 
exist in the region 
7.519.  As FMD is not known to exist in Patagonia, there is currently no active disease control 
programme in the region.1369 Passive surveillance includes the obligation for any citizen to report 
an outbreak, compliance with which is incentivized through compensation in case of accurate 
reporting.1370 
                                               
1356 See Dr Batho's response to Pa nel question No. 57. Dr Bonbon added that, in light of such 
improvements, the risk of FMD-transmission from import s of fresh (chilled or frozen) beef from Northern 
Argentina is "lower than it was in 1997". (Dr Bonbon's response to Panel question No. 57) 
1357 2014 Risk Analysis for Patagonia, (Exhibit USA-133), p. 17. 
1358 2014 Risk Analysis for Patagonia, (Exhibit USA-133), p. 17. 
1359 Resolución SENASA 754/2006, (Exhibit ARG-143). 
1360 European Commission's 2006 Report, (Exhibit ARG-111), p. 21. 
1361 See e.g. European Commission's 2002 Report, (E xhibit ARG-107), p. 27; European Commission's 
2006 Report, (Exhibit ARG-111), p. 21. 
1362 Dr Cupit's response to Panel question No. 31. 
1363 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 whic h imports into the Community of certain fresh meat are authorized , 
(Exhibit ARG-120). We understand that the European Union had already reopened its market to imports of FMD-susceptible animals and animal products from Pa tagonia South prior to August 2003. See Argentina's 
response to Panel question No. 25 follo wing the first substantive meeting. 
1364 Dr Cupit's response to Panel question No. 36.  
1365 Argentina's first written submission, para. 3. 
1366 OIE Resolution XVII of 2002, (Exhibit ARG-89). 
1367 Argentina's first written submission, para. 3. 
1368 OIE Resolution XXI of 2007, (Exhibit ARG-10). 
1369 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 27; 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 26. 
1370 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 27; 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 26. WT/DS447/R 
 
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  7.520.  Most of the laws, decrees and regulations setting forth the measures to be put in place in 
order to eradicate FMD from the Argentine territory, discussed in paragraph 7.467 above, apply to Patagonia as well as to Northern Argentina.
1371 Since Patagonia as a whole has not had an 
FMD outbreak in about 20 years and does not vaccinate against the disease, the most relevant 
regulations applicable to the region are those aimed at implementing sanitary barriers and 
movement controls to insulate Patagonia from the entry of FMD-susceptible animals and animal products from regions of higher risk. We analyse such regulations more in detail in 
paragraphs 7.525-7.528 below. 
7.6.7.4.2.4  The vaccination  status of the region 
7.521.  Because FMD is not known to be present in Patagonia, no vaccination is practiced in the 
region.
1372 APHIS considered in 2005 that this being the case, "any cattle or swine in that region 
exposed to the FMD virus would act as good sentinels of an outbreak".1373 
7.6.7.4.2.5  The status of adjace nt regions with respect to FMD 
7.522.  Patagonia shares its Northern land border with one region recognized by the OIE as FMD- 
free where vaccination is practised, namely Northern Argentina. On the West, it borders a region 
recognized by the OIE as FMD-free where vaccination is not practised, i.e. Chile. On the East, the region is bordered by the Atlantic Ocean. 
7.6.7.4.2.6  The degree to which the region is  separated from adjacent regions of higher 
FMD risk through physical or other barriers 
7.523.  Patagonia is separated from Northern Argentina by the Rio Negro, a constantly flowing 
watercourse that "make[s] crossing difficult".
1374 The climate of the region is mostly dry and windy 
in the summer and cold, windy, and snowy in the winter.1375 In APHIS' view, "the terrain and 
desolate nature of the area act as an effective barrier to disease incursion through illegal trafficking of prohibited products".
1376 Dr Cupit confirmed that "climatic factors such as humidity, 
rainfall, temperature and prevailing winds" redu ce "the ability and rate of spread of FMD".1377 
Furthermore, the border with Chile runs along the Andes mountains, which constitute an effective natural barrier against the cross-border movement of cattle. 
7.524.  In light of the above, we agree with APHIS that Patagonia is "adequately protected by 
effective natural barriers to reduce the unrestricted flow of animals and animal products from areas of higher risk".
1378 
7.6.7.4.2.7  The extent to wh ich movement of animals and animal products is controlled 
from regions of higher risk, and the leve l of biosecurity regarding such movements 
7.525.  As discussed in paragraphs 7.481-7.485 above, in 2005 APHIS reviewed the movement 
controls and sanitary barriers in place in Argentina as a whole vis-à-vis incursions of FMD from the 
entry of susceptible animals and animal products from other countries. APHIS' findings concerned, 
inter alia : the management of international authorized border stations, which include terrestrial, 
maritime and fluvial ports, and airports; the conditions under which the relevant products may 
lawfully be imported into Argentina; inspections and controls carried out on the relevant products; 
and the special measures in force in the area bordering Bolivia, Paraguay, and Brazil. Based on the evidence on the record, we found that the move ment controls and other measures applied by 
                                               
1371 Amongst the regulations that do not apply to Patagonia are those relating to vaccination of 
FMD-susceptible species and vaccine quality control. See Table 5 above. 
1372 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 27; 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 26. 
1373 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 25. 
1374 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 30. 
1375 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 30. 
1376 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 30. 
1377 Dr Cupit's response to Panel question No. 50. 
1378 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 30. WT/DS447/R  
 
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  SENASA to prevent the incursion of FMD into Argentina effectively protect the region from ingress 
of animals and animal products from regions of higher FMD-risk. 
7.526.  We now turn to a more specific examination of the movement controls and sanitary 
barriers aimed at preventing the entry of FMD- susceptible animals and animal products into 
Patagonia. As a result of the multiple FMD outbreaks in Northern Argentina which occurred 
throughout 2000 and 2001, SENASA adopted a number  of resolutions creating a sanitary barrier 
aimed at insulating Patagonia South from entry of FMD from the rest of the national territory.1379 
In 2002, SENASA established a prohibition on the entry into Patagonia of FMD-susceptible animals 
except from regions recognized by the OIE as FMD-free where vaccination is not practised.1380 In 
2005, SENASA recognized Patagonia South and Patagonia North B as having the same FMD status, and imposed a number of traceability requir ements and controls on the movement of 
FMD-susceptible animals between the two areas. Specifically, in order to obtain authorization for 
movement from Patagonia North B to Patagonia South, FMD-susceptible animals: (i) had to remain in the premises of origin for at least 90 days prior to movement application; (ii) had to undergo 
two FMD serological tests (for cattle and sheep, also two Probang tests), during which they had to 
be kept in quarantine; (iii) could be moved to de stination on condition of obtaining an official 
dispatch; and (iv) had to be transported in sealed trucks which could not move through zones 
where FMD vaccination is practiced.
1381 
7.527.  The United States argues that a "key" factor casting doubts as to SENASA's capacity to 
prevent the ingress of FMD-susceptible animals into the region from Northern Argentina is the changes in the regulatory barriers between Patagonia South and Patagonia North B that occurred 
in 2008 through the adoption of SENASA Regulations Nos. 148 /2008 and 1282/2008.
1382 The 
resolutions in question were adopted in order to  meet the import protocols established by the 
European Union as part of its recognition of Patagonia North B as FMD-free where vaccination is 
not practised. Resolution 148/2008 imposed additional tracking requirements and movement 
controls between Patagonia North B and Patagonia South for animals destined to immediate slaughter, including the following: (i) that FMD-susceptible animals be transported in SENASA-
authorized trucks with a valid disinfection certificat e; (ii) that the owner of the premises of origin 
submit to SENASA the itinerary that the truck woul d follow; (iii) that truc ks be sealed and not 
move through zones where FMD vaccination is practiced; (iv) that if the animals are destined to slaughter, the shipment be authorized only to  slaughterhouses inspected and authorized by 
SENASA; (v) that the owner of the premises of  destination communicate the reception of the 
animals to SENASA within 48 hours of arrival; and (v i) that upon arrival at destination, the animals 
remain separated from all other animals of FMD susceptible species for 21 days, during which they 
may be sent to slaughter only if authorized by the local SENASA veterinarian.
1383 
Resolution 1282/2008 extended such requirements  to all movement of FMD-susceptible animals 
from Patagonia North B to Patagonia South for whatever destination and purpose.1384 
7.528.  Neither Resolution 148/2008 nor Resolution 1282/2008 modified the pre-existing 
prohibitions on movement of FMD-susceptible animals between Patagonia as a whole and Northern Argentina. Moreover, the Resolutions imposed a set of transportation, reporting, and traceability 
requirements that strengthened, rather than weakened, SENASA's pre-existing controls on 
movement of cattle throughout the Patagonia region. Our understanding finds support in the 
experts' responses to Panel questions. Accord ing to Dr Cupit, the movement controls and 
traceability requirements in Resolution 1282/2008 "s hould improve SENASA's FMD surveillance 
and control measures" in comparison to the situation that existed in 2000, when Argentina was 
allowed to export the relevant products to the United States.
1385 In his opinion, there are "strict 
movement controls" especially "between the FMD-free areas with and without vaccination"1386, 
i.e. Northern Argentina and Patagonia. Similarly, in Dr Bonbon's view, Resolutions 148/2008 and 
                                               
1379 See e.g. Resolución SENASA 5/2001, (Exhibit  ARG-4/USA-37); Resolución SENASA 25/2001, 
(Exhibit ARG-92); Resolución SENASA 58/2001, (Exhibit USA-59). See also 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 29. 
1380 Resolución SENASA 1051/2002, (Exhibit USA-60). 
1381 Resolución SENASA 725/2005, (Exhibit USA-61). 
1382 United States' first written submission, para. 318. See also Ibid. para. 298. 
1383 Resolución SENASA 148/2008, (Exhibit USA-62). 
1384 Resolución SENASA 1282/2008, (Exhibit USA-109). 
1385 Dr Cupit's response to Panel question No. 32. 
1386 Dr Cupit's response to Panel question No. 36.  WT/DS447/R 
 
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  1282/2008 "are examples of the improved legal capa city of SENASA" as compared to the situation 
in 2000.1387 More generally, Dr Batho stated that surveillance and movement controls "are much 
improved now" compared to 2000.1388 He added that, in his view, the adoption of 
Resolution 1282/2008 did not "create uncertainty over  the status of the different regions" because 
it did not alter the regulatory barriers between Nort hern Argentina, where vaccination is practiced, 
and Patagonia, where vaccination is not practiced.1389 
7.529.   The evidence on the record indicates that SENASA has adequate sanitary barriers and 
movement controls in place to prevent the ingress of FMD-susceptible animals and animal products 
into Patagonia from regions of higher FMD-risk, including Northern Argentina. 
7.6.7.4.2.8  Livestock demographics an d marketing practices in the region 
7.530.  Due to its cold and arid climate, the Patagonia region has low cattle density. Bovine 
production is secondary, and beef produced in the region is mostly consumed locally.1390 As noted 
in paragraph 7.491 above, Patagonia imports deboned and matured fresh (chilled or frozen) beef from Northern to meet its consumption demand.
1391 Conversely, Patagonia contains almost 60% of 
the entire sheep population of Argentina, with  an average population density of 14 sheep per 
square kilometre.1392 In 2005 Argentina was exporting 10,000 tons/year of sheep meat to the 
European Union, of which 90% came  from the Patagonia South region.1393  
7.531.  Movements of livestock within the Patagonia region are limited and there are no fairs or 
livestock concentration markets. Annual auctions for breeding rams occur once a year, each selling about 400 animals. Also, large farms carry ou t their annual breeder auctions on their own 
premises so breeding livestock transport is limited mainly from farm to farm. Trade in 
FMD-susceptible animal products is carried out directly from the farm to the slaughterhouse with 
direct selling of cull animals and lambs to coldstore plants. Lambs are usually destined for export.
1394 Animals are transported in special vehicles used for this purpose only. The vehicles 
must comply with SENASA Resolution 97/1999, which requires the official approval of the vehicle, 
and SENASA Resolution 809/1982, which prescribes, hygiene and sanitation requirements.1395 The 
transportation of FMD-susceptible animals from farm  to farm and to slaughterhouses is subject to 
the same traceability re quirements and movement controls discussed in paragraph 7.459 above. 
7.532.  As for slaughterhouse practices, there are 19 facilities in the Patagonia region that are 
approved by SENASA, three of which are approved  for export of sheep meat to the European 
Union.1396 In 2005, APHIS reviewed the biosecurity co ntrols established by SENASA in order to 
accredit a facility. Such controls include that: (i) animals be kept in pens and not be allowed to exit 
the facility once they have entered it; (ii) all effl uent be treated by separating solids, fats, liquids, 
and chlorinates out before releasing them to the general sewage system; (iii) effluents from the 
sanitary complex be individually treated by disinfection before being dumped with the rest of the 
common, treated effluents; and (iv) raw slaughter and slaughter pathology wastes be processed into nonedible by-products.
1397 APHIS further observed that all animals receive an ante-mortem 
inspection by a SENASA technician upon arrival at the slaughterhouse, as well as a post-mortem 
inspection after slaughter by SENASA field veterinarians and plant staff.1398 Deboning and 
                                               
1387 Dr Bonbon's response to Panel question No. 32. 
1388 Dr Batho's response to Panel question No. 32. 
1389 Dr Batho's response to Panel question No. 33. 
1390 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 44; 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 40.  
1391 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 44; 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 40. 
1392 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 44; 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 40. 
1393 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 44; 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 40. 
1394 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 45. 
1395 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 45. 
1396 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 46; 2014 Risk Analysis for Patagonia, 
(Exhibit USA-133), p. 44. 
1397 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 46-47; 2014 Risk Analysis for Northern 
Argentina, (Exhibit USA-169), pp. 58-59. 
1398 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 47.  WT/DS447/R  
 
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  maturation of fresh meat are not practised in Patagonian slaughterhouses. In this respect, 
Dr Batho observed that the European Union does no t require such processes to take place in order 
for the meat to be imported into its territory from Patagonia South.1399 
7.533.  Based on the foregoing, APHIS concluded in 2005 that "[t]he livestock industry in 
Patagonia South appears to be well-organized" and "aware of necessary biosecurity precautions", 
which in turn are "effective in the prevention of FMD outbreaks"1400. Specifically, with respect to 
sheep products, APHIS "did not identify significant risk pathways to consider commercial sheep 
operations as a likely source for introducing FMD into the United States".1401 We do not see any 
evidence on the record indicating that, througho ut the period between 2005 and the date of the 
Panel's establishment, the facts underlying APHIS' conclusions changed to an extent that would reverse such conclusions.  
7.6.7.4.2.9  The type and extent of  disease surveillance in the region 
7.534.  As discussed in paragraphs 7.492-7.493 above, in 2005 APHIS reviewed active and passive 
surveillance conducted by SENASA in the Argentine territory as a whole. This is because, already 
at that time, "[s]urveillance activities in the Patagonia Region [were] conducted only under the 
national surveillance design", and there were no  Patagonia-specific measures in place in that 
respect.
1402 This element had not changed by the time the Panel was established.1403 As discussed, 
APHIS considered that the two-stage sampling strategy at the herd level and the individual animal 
level allows the early detection of FMDV at a statistical confidence level of 95% and is "both valid and efficient".
1404 Although, the objectives, approaches, and intensity may change slightly from 
year to year, the basic sampling approach is de fined in the National Eradication Plan, which 
remains the same since it was adopted.1405  
7.535.  APHIS also reviewed several rounds of serological sampling conducted in the Patagonia 
region between 2001 and 2003, involving bovine, ovine, goats, farm deer, and wild 
biungulates.1406 It concluded that such sampling activities, as would "continue in the future", were 
"adequate to detect disease and/or identify  and measure viral activity in the area".1407 Further, 
APHIS stated that the fact that serological sampling in the area resulted in no animals ever testing 
positive to FMD and no viral activity ever found demonstrates "the absence of disease in 
Patagonia".1408 The Panel sees no evidence on the record  to indicate the situation changed from 
2005 until the date of the Panel's establishment.  
7.6.7.4.2.10  Diagnostic laboratory capacity 
7.536.  As discussed in paragraphs 7.494-7.495 above, in its 2005 risk assessment APHIS 
reviewed a number of elements in connection with  the organization, structure, and capacity of 
laboratories in Argentina. It found, inter alia , that Argentine laboratories use an information 
management system for recording samples and for typing laboratory results to be analysed by 
epidemiologists. APHIS described the system as "effective and adequate" and the staff as "very capable" in managing it.
1409 It also observed that the National Reference Laboratory was, at that 
time, working towards accreditation under international standard ISO 17025.1410 APHIS also 
reviewed the collection, treatment, and analysis of diagnostic samples, as well as the technological capability of the laboratories to conduct diagnostic tests.
1411  
                                               
1399 Transcript of the meeting, para. 1.287. 
1400 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 47. 
1401 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 47-48. 
1402 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 48. 
1403 2014 Risk Analysis for Northern Ar gentina, (Exhibit USA-169), p. 46. 
1404 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 49. 
1405 2014 Risk Analysis for Patagonia, (Exhibit USA-133), pp. 50-51. 
1406 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 55-63. 
1407 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 63. 
1408 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 63. 
1409 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 65. 
1410 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 65. 
1411 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 67. WT/DS447/R 
 
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  7.537.  APHIS concluded that "Argentina has the di agnostic capabilities to adequately te st samples 
for the presence of the FMD virus", that "quality control activities within the laboratories are sufficient", that "laboratory equipment is routinely monitored and calibrated", that "sufficient staff is available", and that "there is an effective and efficient recordkeeping system for storage and 
retrieval of data".
1412 We do not see any evidence on the record indicating that the facts 
underlying APHIS' 2005 conclusions changed in a way that would warrant a reversal of such conclusions during the period leading up to the Panel's establishment. Rather, in 2006, the 
National Reference Laboratory was accredited under international standard ISO 17025
1413 and the 
laboratory network acquired the capacity to run Polymerase Chain Reaction (PCR) tests for FMD1414 
– the lack of which APHIS had found to be a gap in 2005.1415 Finally, the fact that SENASA's 
Animal Laboratory is recognized as an OIE Reference Laboratory for FMD has been described by 
the OIE as a "very positive factor".1416 Indeed, in the OIE's view, such a recognition entails that 
the laboratory "is capable of providing diagnostic services of a … world level" and to "provide a service at no charge to other countries".
1417 
7.6.7.4.2.11  Policies and infrastruc ture for animal disease control 
7.538.  As discussed in paragraphs 7.496-7.497 above, in its 2005 risk assessment APHIS 
reviewed several aspects of the regulatory framew ork in force in Argentina as a whole to ensure 
disease surveillance and the ability to deal with possible FMD outbreaks in the region. It concluded 
that SENASA "has the infrastructure and lega l authority to declare an emergency and take 
appropriate action in case of an [FMD] outbreak".1418 The European Commission's 2006 Report 
confirms that the procedures in place "permit[] a rapid and effective response to [an] 
FMD outbreak".1419 
7.6.7.4.2.12  Conclusions on the sc ientific evidence on the record 
7.539.  The evidence on the record demonstrates that Patagonia has the necessary veterinary 
capacity and infrastructure to prevent and contro l FMD in its own territory and the capacity to 
prevent incursions of the disease from regions of  higher FMD-risk. Such capacity stems from a 
panoply of interlocking and overlapping sanitary me asures aimed at reducing the risk of entry of 
FMD in the region, including, inter alia : accurate tracking and identification of animals, effective 
controls on the movement of FMD-susceptible animals from regions of higher FMD risk, appropriate collection of samples and laboratory capacity, efficacious mitigating measures at slaughterhouses such as ante- and post-mortem insp ections, and comprehensive control policies in 
case of an outbreak. Such measures are effective tools to ensure that the region remains free of 
FMD as it has been since 1994. 
7.540.  We now turn to assessing whether the alternative measures identified by Argentina, if 
applied to imports of FMD-susceptible animals and animal products from Patagonia, would achieve 
the United States' ALOP for FMD, recalling that we have found that the ALOP is between low and zero. 
7.6.7.4.2.13  Whether the inclusion of Pata gonia in the list of FMD-free regions under 
9 CFR 94.1(a) and the application of the pr otocols in 9 CFR 94.11 to imports therefrom 
would achieve the United States' ALOP  
7.541.  In support of its Article 5.6 claim concerni ng the United States' prohibition on imports of 
FMD-susceptible animals and animal products from Patagonia, Argentina identified one alternative 
measure: namely, the inclusion of Patagonia to the list of FMD-free countries or regions under 9 CFR 94.1(a).
1420 Further, as Argentina observes, the mitigating protocols set forth in 
                                               
1412 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 68. 
1413 2014 Risk Analysis for Patagonia, (Exhibit USA-133), p. 62. 
1414 2014 Risk Analysis for Patagonia, (Exhibit USA-133), p. 63. 
1415 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 66-67. 
1416 Transcript of the meeting, para. 1.62.  
1417 Transcript of the meeting, para. 1.62.  
1418 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), p. 70. 
1419 European Commission's 2006 Report, (Exhibit ARG-111), p. 20. 
1420 Argentina's second written submission, para. 182. See also Argentina's first written submission, 
paras. 502-503; Argentina's response to Panel question No. 44 following the first substantive meeting. WT/DS447/R  
 
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  9 CFR 94.11 apply to imports of FMD-susceptible  animal products from some of the regions 
included in the list, namely regions which: (i) supplement their national meat supply through the importation of fresh, chilled, or frozen meat of ruminants or swine from regions that are not included in the list; (ii) have a common land border with regions that are not included in the list; 
or (iii) import ruminants or swine from regions that are included in the list under conditions less 
restrictive than would be acceptable for importation into the United States.
1421 Because Patagonia 
borders a region not included in the list, i.e. Northern Argentina, and imports deboned and 
matured fresh (chilled or frozen) beef therefrom, its inclusion to the list in 9 CFR 94.1(a) would be 
coupled with the application to imports of animal products therefrom of the general protocols under 9 CFR 94.11.
1422  
7.542.  In Argentina's view, the fact that Patagonia shares the same OIE status-recognition as 
Santa Catarina means that the two regions are in a similar sanitary situation.1423 Indeed, according 
to Argentina, both regions are FMD-free where vaccination is not practised, but border a region that is not included in APHIS' list under 9 CFR 94.1(a). Therefore, in Argentina' opinion, the fact 
that Santa Catarina is included in the list in 9 CFR 94.1(a) and is subject to the protocols under 
9 CFR 94.11 shows that the addition of Patagonia to  the same list and the application of the same 
protocols to imports from the region would achieve the United States' ALOP.
1424 The United States 
responds that Argentina failed to substantiate its claim that Patagonia has a similar FMD situation 
as Santa Catarina.1425  
7.543.  We consider that the mere fact that the OIE recognizes both Patagonia and Santa Catarina 
as FMD-free where vaccination is not practised is not, in and of itself, dispositive as to whether the 
inclusion of the former in the list under 9 CFR 94.1( a) and the application to products therefrom of 
the protocols under 9 CFR 94.11 would achieve the United States' ALOP.1426 Rather, mindful of the 
Appellate Body's guidance in Australia – Apples , we must conduct our own assessment of whether 
the application of such measures to Patagoni a would bring the risk posed by imports of 
FMD-susceptible animals and animal products from the region down to a level that achieves the United States' ALOP.  
7.544.  The protocols set forth in 9 CFR 94.11 impose a twofold certification requirement on 
imports of FMD-susceptible animal products into the United States. First, all meat or other animal product from the relevant region, whether in personal-use amounts or commercial lots, shall have been prepared only in an inspected establishment that is eligible to have its products imported into 
the United States under the relevant United States' regulations, and shall be accompanied by a 
Department-approved meat inspection certificate or similar certificate approved by the Administrator.
1427 Second, meat of ruminants or swine or other animal products from the relevant 
region must be accompanied by additional certification by a fulltime salaried veterinary official of 
the agency in the national government of origin. The certificate must give the name and official establishment number of the establishment where the animals were slaughtered, and shall state 
that: 
a. The slaughtering establishment is not permitted to receive animals that originated in, or 
have ever been in, or that have been aboard a means of conveyance at the time such means of conveyance called at, or landed at a port in, a region not included in the list 
under 9 CFR 94.1(a) and therefore considered to be FMD-affected; 
                                               
1421 9 CFR 94.11, (Exhibit ARG-64). 
1422 Argentina's second written submission, para. 182. See also Argentina's first written submission, 
paras. 502-503; Argentina's response to Panel question No. 44 following the first substantive meeting; 9 CFR 94.11, (Exhibit ARG-64). We note that under 9 CFR 94.11, imports of live FMD-susceptible animals are not subject to any restrictions or pr otocols. Our findings in this section are without prejudice to any general 
requirements concerning the importation of live an imals imposed under other relevant United States' 
regulations. 
1423 Argentina's first written submission, para. 502. See also Argentina's second written submission, 
para. 182. 
1424 Argentina's first written submission, para. 502. See also Argentina's second written submission, 
para. 182. 
1425 United States' first written submission, para. 298. 
1426 This is in line with our finding that the import  measures and mitigating protocols recommended by 
the Terrestrial Code can operate independently of the OIE' s official recognition of disease status for a certain 
country or region. (See para. 7.238 above). 
1427 Exhibit ARG-64. WT/DS447/R 
 
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  b. The slaughtering establishment is not permitted to receive meat or other animal 
products derived from ruminants or swine which originated in such a FMD-affected region, or meat or other animal products from an FMD-free region transported through an FMD-affected region except in containers sealed with serially numbered seals of the 
National Government of the non-affected region of origin; and 
c. The meat or other animal product covered by the certificate was derived from animals 
born and raised in the region of origin and the meat or other animal product has never 
been in any region in which FMD existed; and 
d. The meat or other animal product has been processed, stored, and transported to the 
means of conveyance that will bring the article to the United States in a manner to preclude its being commingled or otherwise in contact with meat or other animal 
products that do not comply with the conditions contained in this certificate.
1428 
7.545.  As the language above indicates, the protocols under 9 CFR 94.11 set forth a number 
additional guarantees for the United States' authorit ies that the measures in force in the region of 
origin in order to prevent and control FMD are prop erly implemented, thus reducing the risk that 
imports of FMD-susceptible animal products from that region cause the introduction of FMD into the United States' territory.  
7.546.  In paragraph 7.539 above, we found, based on the evidence on the record, that Patagonia 
has the necessary veterinary capacity and infrastructure to prevent and control FMD in its own territory and the capacity to prevent incursions of  the disease from regions of higher FMD-risk. We 
also noted that such capacity is adequate to en sure that Patagonia maintains its freedom from the 
disease. Given the credibility of the sanitary stru ctures of Patagonia, we see no evidence on the 
record indicating that SENASA would be unable to adopt and properly implement the protocols set forth in 9 CFR 94.11.  
7.547.  Based on the foregoing, we conclude, as a matter of fact, that the addition of Patagonia to 
the list of FMD-free countries or regions under 9 CFR 94.1(a), coupled with the application to imports of animal products therefrom of the protocols under 9 CFR 94.11, would achieve the 
United States' ALOP for FMD, which we described as being between low and zero risk.
1429 
7.6.7.4.2.14  Conclusions on whether the Un ited States' prohibitions on imports of 
FMD-susceptible animals and an imal products from Patagoni a are more restrictive than 
required to meet the United States' ALOP 
7.548.  Based on all the foregoing, we conclude that the addition of Patagonia to the list of 
FMD-free countries or regions under 9 CFR 94.1(a), coupled with the application to imports of animal products therefrom of the protocols set fort h in 9 CFR 94.11, (i) is reasonably available to 
the United States and technically and economically feasible; (ii) would achieve the United States' 
ALOP; and (iii) would be significantly less trade-restrictive than the United States' prohibitions in place at the time of the establishment of the Pa nel. Therefore, the United States' prohibitions 
challenged by Argentina are more restrictive than required to achieve the United States' ALOP, and 
thus are inconsistent with Article 5.6 of the SPS Agreement. 
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 
7.7.1  Relevant legal provisions 7.549.  Article 2.3 of the SPS Agreement reads, in relevant part: 
Members shall ensure that their sanitary and phytosanitary measures do not 
arbitrarily or unjustifiably discriminate be tween Members where identical or similar 
                                               
1428 Exhibit ARG-64. 
1429 See para. 7.387 above. WT/DS447/R  
 
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  conditions prevail, including between their own territory and that of other Members. 
Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade. 
7.550.  The Appellate Body has clarified that Article 2.3 of the SPS Agreement contains two 
primary obligations, each of which corresponds to one of the sentences of Article 2.3.
1430 The first 
obligation is contained in the first sentence: "Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where 
identical or similar conditions prevail ". The second obligation is contained in the second sentence: 
"Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade". 
7.7.2  Main arguments of the parties 
7.7.2.1  Argentina 
7.551.  Argentina claims that the United States' measures arbitrarily and unjustifiably discriminate 
between Members where identical or similar si tuations prevail and operate as a disguised 
restriction on international trade, inconsiste ntly with Article 2.3 of the SPS Agreement. 
7.552.  Beginning with arbitrary or unjustifiable discrimination, Argentina notes that the Appellate 
Body has found similarities between Article 2.3 and the chapeau of Article XX of the 
GATT 1994.
1431 Thus, in Argentina's view, the chapeau of Article XX constitutes relevant context 
for the interpretation of the phrase "arbitrary or unjustifiable discrimination" under Article 2.3.1432 
Relying on prior panel and Appellate Body reports on the chapeau of Article XX, Argentina argues that the discrimination stemming from the United States' measures "bears no rational connection" 
to their stated objective of protecting the United States' against the introduction, establishment or 
spread of FMD.
1433 Argentina claims that the United States' measures discriminate both 
substantively and procedurally.1434  
7.553.  As for "substantive discrimination"1435, Argentina submits, first, that by imposing a 
prohibition on imports of fresh (chilled or frozen) beef from Northern Argentina, while allowing imports of the same products from Uruguay under the mitigating protocols of 9 CFR 94.22, the 
United States discriminates between the two regions, which are "in essentially the same 
situation".
1436 In Argentina's view, the similarities between Northern Argentina and Uruguay are 
evidenced by the fact both regions had FMD outb reaks at roughly the same time and are both 
recognized by the OIE as FMD-free where vaccination is practised.1437 Moreover, Argentina relies 
on APHIS' statement that "Uruguay, Argentina and Brazil have an effective cooperative, regional 
approach to FMD surveillance and control programs".1438 Finally, Argentina claims that the two 
regions present similar physical situations and institutional structures for dealing with FMD1439, 
including "sampling methodologies", "procedural guidelines for handling outbreaks or suspected 
situations", regionally harmonized "border controls ", "vaccines", "registries/records of producers, 
                                               
1430 Appellate Body Report, Australia – Salmon , para. 252. See also Panel Report, India – Agricultural 
Products , para. 7.388. 
1431 Argentina' first written submission, para. 327 (citing Appellate Body Report, Australia – Salmon , 
para. 251). 
1432 Argentina' first written submissi on, para. 328 (citing Panel Report, US – Poultry (China) , 
para. 7.260). 
1433 Argentina' first written submission, paras. 329 and 522. 
1434 Argentina's second written submission, para. 205. 
1435 Argentina's second written submission, p. 60, subheading E.1. 
1436 Argentina's first written submission, para. 268.  See also Ibid. para. 326; Argentina's opening 
statement at the first meeting of the Panel, para. 51;  Argentina's second written submission, para. 206; 
Argentina's opening statement at the second meeting of the Panel, para. 97. 
1437 Argentina's first written submission, para. 330; Argentina's second written submission, para. 213; 
Argentina's response to Panel question No. 37 following the first substantive meeting. 
1438 Argentina's first written submission, para. 333; Argentina's opening statement at the first meeting 
of the Panel, para. 52; Argentina's response to Panel question No. 37 following the first substantive meeting; Argentina's second written submission, para. 206. 
1439 Argentina's first written submission, para. 334. WT/DS447/R 
 
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  vaccination and movement control", "sanitary services", and "programs for the eradication and 
control of FMD".1440  
7.554.  Second, Argentina claims that, by proh ibiting imports of FMD-susceptible animals and 
animal products from Patagonia, while recognizing Santa Catarina and Chile as FMD-free under 
9 CFR 94.1(a) and allowing imports therefrom under the mitigating protocols in 9 CFR 94.11, the 
United States discriminates between the two regions, which present a "high degree of similarity" in terms of sanitary conditions.
1441 In Argentina's view, the similarities between Patagonia and Santa 
Catarina are evidenced by the fact that the two regions have had their last FMD outbreaks around 
the same time1442, are recognized by the OIE as FMD-free where vaccination is not practised 1443, 
and are part of countries recognized as FMD-free where vaccination is practised.1444 Moreover, 
Argentina observes that the last FMD outbreak in Brazil occurred in 2006 and did not affect Santa 
Catarina, similar to the 2006 FMD outbreak in the Argentine province of Corrientes, which did not 
affect Patagonia.1445 Argentina further refers to APHIS' focus on regional efforts for the eradication 
a n d  c o n t r o l  o f  F M D ,  e s p e c i a l l y  i n  r e l a t i o n  t o  the risk of reintroducin g FMD from neighbouring 
countries.1446 With respect to Chile, Argentina refers to APHIS' 2007 statement that "the animal 
health status of Chile and Patagonia South are equivalent".1447 
7.555.  As for "procedural discrimination"1448, Argentina claims that United States' prohibitions as 
applied to the relevant products from Northern Argentina and Patagonia have been "maintained for 
more than a decade without any current valid risk assessment" taking into account "the radical improvement on Argentina's sanitary condition".
1449 Conversely, according to Argentina, other 
Members "were given risk assessments quite rapidly after significant outbreaks and were moved 
through the rulemaking process and given import permission accordingly".1450 For instance, 
Argentina observes that Uruguay, which had an FMD outbreak in 2001, was allowed to export fresh (chilled or frozen) beef to the United States again in 2003.
1451 Moreover, Argentina notes, 
the United Kingdom is included in APHIS' list of FMD-free regions under 9 CFR 94.1(a) despite 
having experienced a "truly massive" FMD outbreak in 2000-2001 and another outbreak in 2008.
1452 Similarly, Japan is back on APHIS' list despite having suffered an FMD outbreak in 2010, 
by virtue of a favourable risk assessmen t conducted "one year" after the outbreak.1453 Argentina 
concedes that the FMD situations in the United Kingdom and Japan are not necessarily identical to those in Northern Argentina and Patagonia.
1454 However, in its view, the condition that is relevant 
to its procedural discrimination claims is that all the above-mentioned regions "had 
FMD outbreaks" and have an interest in having "their export rights provided by the [United States] 
through full access to the United States' regulatory system".1455 In other words, Argentina claims 
that it "has been denied equal access to the US regulatory processes" enjoyed by other 
Members.1456 
7.556.  Next, Argentina claims that the United States measures are applied in a manner 
constituting a disguised restriction on internationa l trade. Indeed, it contends, "there could be no 
                                               
1440 Argentina's second written submission, para. 209.  
1441 Argentina's first written submission, para. 514. 
1442 Argentina's first written submission, para. 520; Argentina's second written submission, para. 223. 
1443 Argentina's first written submission, para. 509; Argentina's second written submission, para. 223. 
1444 Argentina's first written submission, para. 520. 
1445 Argentina's first written submission, paras. 509-510. 
1446 Argentina's second written submission, para. 224. See also Argentina's responses to Panel questions 
Nos. 11 and 37 following the first substantive meeting. 
1447 Argentina's first written submission, para. 512 (quoting 2007 Proposed Rule on Patagonia South, 
(Exhibit ARG-56/USA-104)). 
1448 Argentina's second written submission, p. 66, subheading E.2. 
1449 Argentina's first written submission, para. 336. 
1450 Argentina's first written submission, para. 344.  See also Ibid. para. 336; Argentina's opening 
statement at the first meeting of the Panel, paras. 54-55. 
1451 Argentina's second written submission, paras. 227-228. See also Ibid. para. 340. 
1452 Argentina's first written submission, paras. 342-344.  
1453 Argentina's first written submission, paras. 342-344.  
1454 Argentina's second written submission, para. 230. 
1455 Argentina's second written submission, para. 231. See also Argentina's response to Panel question 
No. 35 following the second substantive meeting.  
1456 Argentina's first written submission, para. 336. WT/DS447/R  
 
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  greater restriction on international trade than a measure banning imports"1457 continuously 
maintained "for eleven years" without any "rational, logical or scientific basis".1458 In particular, 
Argentina maintains that the treatment of Patagonia as opposed to that of Santa Catarina "is not based on sound science"
1459, but rather on non-scientific domestic interests1460, as evidenced in 
particular by the adoption of the ban in Section 737 of the 2009 Omnibus Appropriations Act  
"which restricted the ability of APHIS to proceed to a final rulemaking".1461 Moreover, Argentina 
asserts that the 2010 inclusion of Santa Catarina in APHIS' list under 9 CFR 94.1(a) was part of 
the "concessions in settlement of the wholly unrelated cotton subsidies dispute with the 
United States".1462 
7.7.2.2  United States 7.557.  The United States disagrees with Argentina that its measures arbitrarily and unjustifiably 
discriminate between Members where identical or similar situations prevail. In its view, APHIS' 
review of applications for the authorization of imports – that is, "the process of seeking additional information" – is not an SPS measure falling within the purview of Article 2.3 of the 
SPS Agreement.
1463 This is because SPS measures are "applied" to "protect animal … life or health" 
and may include "provisions on … methods of risk assessment"1464, whereas Argentina "is not 
challenging a method of risk assessment that discriminates against it", as "there is nothing in 
United States' law or regulations on risk assessment that discriminates".1465 For the United States, 
it is only the measure that will be adopted following APHIS' review of Argentina's requests that is "applied" to "protect animal … life or health".
1466  
7.558.  If the Panel were to find that Article 2.3 does, indeed, apply to APHIS' review processes, 
the United States maintains that Argentina failed to substantiate its discrimination claims.1467 In 
particular, the United States takes issue with Argentina's argument that, Northern Argentina and Uruguay on the one hand and Patagonia and Santa Catarina on the other, are identical or similar 
because they share the same OIE FMD disease status. In the United States' opinion, although 
APHIS considers the OIE's official recognitions of disease status in performing its own risk assessments, such recognitions are not, per se, sufficient to conclude that identical or similar 
FMD conditions prevail in two or more Members.
1468 This is because, the United States argues, the 
OIE official recognition of FMD disease status for a given region does not take into account important factors, including "whether the region accepts imports from FMD-infected regions", the 
region's "veterinary services' capacity to dete ct, prevent and control" FMD, and the specific 
SPS measures which are required to meet the United States' ALOP for that region.
1469  
7.559.  The United States highlights differences be tween the regions identified by Argentina which, 
in its view, exclude their identity or similarity under Article 2.3. Concerning Northern Argentina 
and Uruguay, the United States asserts that, at the time of the establishment of the Panel, APHIS 
had completed a risk analysis for Uruguay and co ncluded that imports of its products under the 
protocols in 9 CFR 94.22 would achieve the United States' ALOP.1470 Conversely, at that time 
APHIS had not yet concluded its risk analysis fo r Northern Argentina and thus had not reached 
                                               
1457 Argentina's first written submission, para. 345. 
1458 Argentina's first written submission, para. 350. 
1459 Argentina's first written submission, para. 530. 
1460 Argentina's first written submission, para. 528. 
1461 Argentina's first written submission, para. 525. Argentina also refers to a number of statements 
made by the United States before the SPS Committee that allegedly reveal the existence of non-scientific concerns with respect to imports from Patagonia. (Ibid. paras. 525-527 (referring to G/SPS/R/64, paras. 96-97; and G/SPS/R/67, para. 44). 
1462 Argentina's first written submission, para. 529. 
1463 United States' first written submission, para. 303. See also United States' opening statement at the 
second meeting of the Panel, para. 74. 
1464 United States' first written submission, para. 303. 
1465 United States' first written submission, para. 303. 
1466 United States' first written submission, para. 303. 
1467 United States' second written submission, para. 117; United States' opening statement at the first 
meeting of the Panel, para. 70; United States' second written submission, para. 123; United States' opening statement at the second meeting of the Panel, para. 72.  
1468 United States' second written submission, para. 119. 
1469 United States' second written submission, para. 121. 
1470 United States' response to Panel question No. 42 following the first substantive meeting. WT/DS447/R 
 
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  conclusions as to the appropriateness of the application of the same mitigating protocols to 
imports from Northern Argentina.1471 In the United States' view, the difference between the time 
taken to conduct the two reviews is justified by the fact that the two regions are not similarly situated in terms of geography and cross-border FMD introduction, populations of livestock 
susceptible to FMD, volume of veterinary resour ces, and recent FMD history. The United States 
notes that Uruguay is a "small country" and shares only two terrestrial borders with Brazil and Argentina; it has a "relatively small population of animals susceptible to FMD"; and "has 
infrastructure to carry out FMD control and eradication programs", with "105,051 heads of cattle 
for every veterinarian".
1472 Further, the United States argues, Uruguay did not have 
FMD outbreaks from 1990 to 2000-2001; it promptly reported the 2001 outbreak, which was "traceable to a strain of FMD virus in Argentin a", and "was transparent to APHIS authorities".
1473 
Conversely, the United States observes, Argentina is "15 times larger than Uruguay", and shares 
longer terrestrial borders with Chile, Bolivia, Paraguay, Brazil, and Uruguay; two of Argentina's neighbouring countries "have had recent FMD ou tbreaks"; Argentina has a livestock population 
"significantly larger" than does Uruguay, and is less equipped to carry out FMD control and 
eradication programs, with "221,519 heads of cattle for every veterinarian".
1474 Finally, according 
to the United States, the Argentine authorities intentionally kept the full extent of its 2000-2001 
FMD outbreaks confidential.1475 In its view, Argentina has not effectively addressed such factors, 
nor has it provided any scientific evidence concerning similarities between Northern Argentina and Uruguay.
1476 
7.560.  Similarly, the United States takes issue wi th the alleged similarities between the conditions 
prevailing in Patagonia, Santa Catarina, and Chile. It contends that the "key differentiation"1477 
between Patagonia and Santa Catarina is the fact that APHIS was able to "draw a conclusion as to the appropriateness of the import authorization terms" applied to imports from the latter region, 
whereas at the time of the Panel's establishment it had not reached such a determination with 
respect to imports from the former.
1478 This is because, the United States contends, in December 
2008 SENASA extended its original request for the recognition of Patagonia South to Patagonia 
North B.1479 Moreover, the United States maintains that while Santa Catarina "had no sanitary 
boundary changes" during APHIS' review of Brazil's application, Argentina "introduced new changes to the sanitary boundaries between Patagonia South and Patagonia North B in 2008".
1480 
In its view, such changes added a "confounding element" to APHIS' review, which was initially 
"premised on certain controls with Patagonia North B"1481, therefore explaining the "difference in 
review periods".1482 With respect to Chile, the United States maintains that APHIS' 2007 statement 
regarding its equivalence with Patagonia South simply referred to the fact that the two regions 
"had the same OIE animal health status recognition".1483 In its view, such a statement alone does 
not prove identity or similarity between the two regions "unless and until APHIS makes a final determination regarding Patagonia South".
1484 
7.561.  Concerning Argentina's allegations of procedural discrimination, the United States 
maintains that "differences in time" in APHIS' review of Argentina's requests as compared to the requests of other Members are "not a sufficient basis" to substantiate Argentina's claims.
1485 In its 
view, the process for reaching conclusions as to the FMD status of a region "depends upon a 
variety of factors"1486, including "the comprehensiveness of the submission of the applicant" and 
the applicant's "responsiveness" in "providing answers to follow up questions".1487 The 
                                               
1471 United States' response to Panel question No. 46 following the first substantive meeting. 
1472 United States' first written submission, para. 307. 
1473 United States' first written submission, para. 310. 
1474 United States' first written submission, para. 309. 
1475 United States' first written submission, para. 310. 
1476 United States' response to Panel question No. 44 following the first substantive meeting. 
1477 United States' first written submission, para. 318. 
1478 United States' first written submission, para. 298. 
1479 United States' first written submission, para. 318. See also Ibid. para. 298. 
1480 United States' first written submission, para. 318. 
1481 United States' first written submission, para. 318. 
1482 United States' first written submission, para. 318. 
1483 United States' response to Panel question No. 39 following the first substantive meeting. 
1484 United States' response to Panel question No. 39 following the first substantive meeting. 
1485 United States' first written submission, para. 304. 
1486 United States' first written submission, para. 304. 
1487 United States' first written submission, para. 305. WT/DS447/R  
 
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  United States maintains that the perceived length of the review of Argentina's requests was due to 
"individualized circumstances"1488, such as SENASA's delays in responding to APHIS' requests for 
information1489 and the 2003 and 2006 FMD outbreaks which occurred in Northern Argentina 
"during the course of the application process".1490 Accordingly, the United States concludes, 
Argentina "has not established, merely by asserting a difference in review time, that discrimination 
occurred in relation to any of its applications".1491  
7.562.  Moreover, the United States contends that, as admitted by Argentina, the substantive 
FMD conditions in Northern Argentina, Patagonia, Japan, and the United Kingdom "are [not] 
identical".1492 It notes that both Japan and the United Kingdom are island chains; therefore land 
crossing of FMD-infected animals over a long border "is not possible".1493 Further, it observes that 
Japan and the United Kingdom have a different FMD history from that of Argentina and 
Patagonia.1494 In light of the above, the United States  considers it "reasonable" that APHIS' 
assessment of regions such as Japan and the United Kingdom would be "less complex", and therefore would require less time than that of Argentina.
1495 
7.563.  Finally, the United States disagrees with Argentina that its measures are applied in a 
manner constituting a disguised restriction on international trade. In its view, the word "disguised" as referred to a restriction on international trade "may mean 'hidden' or 'dissimulated'". According 
to the United States, that "is not the case" wi th respect to APHIS' review of Argentina's 
applications,
1496 which took into account "objective concerns" such as "Argentina's FMD history, 
the series of outbreaks since 2000, the deliberate cover-up of outbreaks, and shifting sanitary 
boundaries within the country".1497 In its opinion, APHIS' review process, motivated by the fact 
that "an FMD outbreak in the United States would lead to severe economic and social damage", is 
i n  a c c o r d a n c e  w i t h  " t h e  p r i n c i p l e  o f  g o o d  f a i t h "1498 and consistent with the United States' 
obligations under the SPS Agreement. 
7.7.3  Main arguments of the third parties 
7.7.3.1  China 7.564.  China notes that the parties disagree as to  the measure at issue under Article 2.3 of the 
SPS Agreement. In its view, Argentina defines such a measure as an "import prohibition", whereas 
the United States defines it as its "regulatory process". For China, there is no doubt that the 
"import prohibition" is an SPS measure subject to the disciplines of Article 2.3, irrespective of whether the "regulatory process" is an SPS measure.
1499 
7.565.  China recalls that "the chapeau of Article XX of the GATT 1994 is relevant and provides 
guidance in interpreting the 'arbitrary or unjustifiable discrimination' under Article 2.3".1500 In 
particular, the analysis of whether the application of a measure results in arbitrary or unjustifiable 
discrimination "should focus on the cause of the discrimination, or the rationale put forward to 
explain its existence".1501 In other words, an assessment of whether discrimination is "arbitrary or 
                                               
1488 United States' first written submission, para. 306. 
1489 United States' first written submission, para. 305. 
1490 United States' first written submission, para. 305. 
1491 United States' first written submission, para. 306. 
1492 United States' first written submission, paras. 312, 314 (citing Argentina's first written submission, 
para. 344). See also United States' response to Pane l question No. 36 following the second substantive 
meeting. 
1493 United States' first written submission, paras. 313 and 315. 
1494 United States' first written submission, paras. 313 and 315. 
1495 United States' first written submission, paras. 313 and 316. 
1496 United States' first written submission, para. 320. 
1497 United States' first written submission, para. 320. 
1498 United States' first written submission, para. 320 (citing Panel Report, Brazil – Retreaded Tyres , 
para. 7.321). 
1499 We understand China to be referring to the distin ction between 9 CFR 94.1(b) and the application of 
the regulatory process under  9 CFR 92.2 to Argentina. 
1500 China's third-party submission, para. 51 (citing Panel Report, US – Poultry (China) , 
paras. 7.260-7.261). 
1501 China's third-party submission, para . 51 (citing Appellate Body Report, Brazil – Retreaded Tyres , 
para. 226). WT/DS447/R 
 
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  unjustifiable" should be made "in light of the objectives of the measure and whether the 
discrimination bears a rational connection to the stated objective of the measure".1502 Finally, 
China stresses that "not all discrimination in the application of measures is necessarily 'arbitrary or unjustifiable' and it is only the arbitrary or unjustifiable inconsistencies that are to be avoided".
1503 
7.7.3.2  European Union 
7.566.  The European Union notes that, when confronted with discrimination claims arising under 
the SPS Agreement, panels "have generally focused their analysis on Article 5.5, finding a violation 
of Article 2.3 only where there was also a violation of Article 5.5".1504 In the present dispute, 
Argentina "does not raise a claim under Article 5.5".1505  
7.567.  The European Union goes on to observe that the thrust of Argentina's claims under 
Article 2.3 is a "comparison of its own status" with "the status of other countries or regions" under 
United States' domestic rules.1506 However, 9 CFR 94.1(b) only contains a general prohibition of 
imports from regions that are not FMD-free, whereas the determination of whether a particular region is FMD-free or not is contained in 9 CFR 94.1(a), which Argentina does not challenge.
1507 
Accordingly, the European Union "does not see how Argentina's claims under Article 2.3 of the 
SPS Agreement could be successful".1508 
7.7.4  Analysis by the Panel 
7.568.  According to the Appellate Body, Article 2. 3 is a provision of "fundamental importance" in 
the context of the SPS Agreement.1509 Indeed, it is contained in Article 2, entitled "Basic Rights 
and Obligations", and mirrors the first recital in the Preamble of the SPS Agreement.1510 We note 
that Argentina links its claims under Article 2.3 to its claims under Article 5.6. Although the 
Appellate Body has considered that Article 5.5, "m ay be seen to be marking out and elaborating a 
particular route leading to the same destination" as Article 2.31511, no similar decision has been 
made with respect to Article 5.6. Furthermore, we note that the panel in India – Agricultural 
Products explained that Article 2.3 "is of a more general character" than the specific paragraphs of 
Article 5.1512  
7.569.  The Appellate Body noted that the language of Article 2.3 incorporates, inter alia,  part of 
the chapeau to Article XX of the GATT 1994.1513 The chapeau of Article XX of the GATT 1994 reads, 
in relevant part: 
Subject to the requirement that such measures are not applied in a manner which 
would constitute a means of arbitrary or unjustifiable discrimination  between countries 
where the same conditions prevail , or a disguised restriction on international trade , … 
nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures [enacted for the purposes listed in the 
subparagraphs of Article XX]. (emphasis added) 
                                               
1502 China's third-party submission, para . 51 (citing Appellate Body Report, Brazil – Retreaded Tyres , 
para. 227). 
1503 China's third-party submission, para . 51 (citing Appellate Body Report, EC – Hormones , para. 213). 
1504 European Union's third-pa rty submission, para. 68. 
1505 European Union's third-pa rty submission, para. 68. 
1506 European Union's third-pa rty submission, para. 69. 
1507 European Union's third-party submission, paras. 69 and 70. 
1508 European Union's third-pa rty submission, para. 71. 
1509 Appellate Body Report, Australia – Salmon , para. 251. 
1510 Appellate Body Report, Australia – Salmon , para. 251. 
1511 Appellate Body Report, EC – Hormones , para. 212. This approach was followed, inter alia , in Panel 
Reports, Australia – Salmon (Article 21.5 - Canada) , paras. 7.112-7.114; EC – Approval and Marketing of 
Biotech Products , paras. 7.1446-7.1448, 7.1765-7.1766 and 7.3405-7.3406; US – Poultry (China) , 
paras. 7.318-7.319; and Australia – Apples , para. 7.1095. 
1512 Panel Report, India – Agricultural Products , paras. 7.344-7.355. 
1513 Appellate Body Report, Australia – Salmon , para. 251. See also Panel Report, US – Poultry (China) , 
para. 7.260. WT/DS447/R  
 
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  7.570.  We agree that the language of the ch apeau of Article XX of the GATT 1994 presents a 
number of similarities with that of Article 2.3. As noted by the panel in India – Agricultural 
Products , both provisions speak of arbitrary and unjustifiable discrimination, and a comparison 
between the "conditions" prevailing in different Members.1514 We also observe that the last recital 
of the Preamble of the SPS Agreement states that the Agreement "elaborate[s] rules for the 
application of the provisions of GATT 1994 which relate to the use of [SPS] measures, in particular the provisions of Article XX(b)", which includes the chapeau.
1515 Therefore, we consider that the 
chapeau of Article XX provides useful context for ou r interpretation of the terms of Article 2.3.  
7.571.  With respect to the obligation in the first se ntence of Article 2.3, we recall that the panel in 
Australia – Salmon (Article 21.5 – Canada) found that three cumulative requirements must be met 
in order to establish a violation of that provision: (i) that identical or similar conditions prevail in 
the territory of the Members compared; (ii) that the measure discriminates between the territories 
of such Members; and (iii) that the discrimination is arbitrary or unjustifiable.1516 We address each 
of these requirements in turn. 
7.572.  As to the requirement that identical or si milar conditions prevail in the Members compared, 
we note that the term "identical" is defined as "designating a proposition whose terms express an identity or denote the same thing; of a thing or set of things viewed at different times – the very 
same; or of two or more separate things; agreeing in every detail".
1517 In turn, the term "similar" 
is defined as "of the same substance or structure throughout – homogenous; having a resemblance or likeness; of the same nature or kind".
1518 Finally, the term "condition" is defined as 
"a way of living or existing"; "the state of someth ing"; "the physical state of something"; and "the 
physical or mental state of a person or thing".1519 In the context of the ch apeau of Article XX, the 
Appellate Body stated in EC – Seal Products  that "only 'conditions' that are relevant  for the 
purpose of establishing arbitrary or unjustifiable discrimination in the light of the specific character 
of the measure at issue and the circumstances of a particular case" should be considered.1520 It 
further observed that the regulatory objective pu rsued by the measure at issue may also provide 
useful guidance on the question of which "conditions" prevailing in different Members are 
"relevant".1521  
7.573.  Turning to the requirement that the meas ures discriminate between Members that are in 
identical or similar conditions, the Appellate Body consistently stated that different treatment does not necessarily amount to discrimination. The focus of a discrimination analysis is whether the 
measure at issue alters the conditions of competition to the detriment of products originating in 
the territories of Members other than the Member  imposing the measure or between the territory 
of the Member imposing the measure and that of another Member.
1522 In US – Shrimp , the 
Appellate Body found that "discrimination" in the context of the chapeau of Article XX may result 
not only when Members in which the same conditions prevail are treated differently, but also where the application of the measure at issue does not allow for any inquiry into the 
appropriateness of the regulatory programme for the conditions prevailing in the exporting 
country.
1523 Further, according to the Appellate Body, discrimination may arise not only from "the 
detailed operating provisions" of a measure, but al so from the application of a measure "otherwise 
fair and just on its face".1524 Finally, the panel in US – Poultry (China)  stated that discrimination 
                                               
1514 Panel Report, India – Agricultural Products , para. 7.400. 
1515 See Panel Report, India – Agricultural Products , para. 7.400. 
1516 Panel Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.111. 
1517 Shorter Oxford English Dictionary on Historical Principles , 6th ed. (Oxford University Press, 2007) 
Vol. 1, p. 1319. 
1518 Shorter Oxford English Dictionary on Historical Principles , 6th ed. (Oxford University Press, 2007), 
Vol. 2, p. 2838. 
1519 Merriam-Webster , available at http://www.merri am-webster.com/dictionary/ condition (las t accessed 
9 December 2014).  
1520 Appellate Body Report, EC – Seal Products , para. 5.299 (emphasis added). 
1521 Appellate Body Report, EC – Seal Products , para. 5.300. 
1522 See e.g. Appellate Body Reports, EC – Asbestos , paras. 98-99; Dominican Republic  – Import and 
Sale of Cigarettes , para. 96; Philippines – Distilled Spirits , para. 256. 
1523 Appellate Body Report, US – Shrimp , para. 165. See also Panel Report, India – Agricultural 
Products , para. 7.400; Panel Report, US – Poultry (China) , para. 7.292. 
1524 Appellate Body Report, US – Shrimp , para. 160. WT/DS447/R 
 
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  may stem from both "'substantive' SPS measures" and "procedural and information 
requirements".1525 
7.574.  Finally, we turn to the requirement that di scrimination be "arbitrary or unjustifiable". The 
Appellate Body found in Brazil – Retreaded Tyres  that an analysis of whether discrimination is 
arbitrary or unjustifiable within the meaning of the chapeau of Article XX "should focus on the 
cause of the discrimination, or the ration ale put forward to explain its existence".1526 Relying on 
the Appellate Body's reasoning, the panel in US – Poultry (China) concluded that the meaning of 
"arbitrary or unjustifiable discrimination" in  Article 2.3 of the SPS Agreement involves a 
consideration of whether there is a "rational connection" between the reasons given for the discriminatory treatment and "the stated objective of the measure".
1527 
7.575.  Concerning the meaning of "disguised restriction on international trade", the Appellate 
Body in US – Gasoline  stated that such a notion, as contained in the chapeau of Article XX of the 
GATT 1994, "includes disguised discrimination in international trade".1528 More specifically, the 
Appellate Body found that "'disguised restriction', wh atever else it covers, may properly be read as 
embracing restrictions amounting to arbitrary or unjustifiable discrimination".1529 The panel in 
India – Agricultural Products  applied the same reasoning in its interpretation of "disguised 
restriction on international trade" in Article 2.3 of the SPS Agreement, and stated that such terms 
"encompass measures that constitute arbitrary or unjustifiable discrimination".1530 We see no 
reason to depart from the above-mentioned approa ch in our assessment of Argentina's claims in 
this dispute. We thus consider that a finding that the United States' measures result in arbitrary or unjustifiable discrimination would necessarily entail a finding that they are applied in a manner 
which would constitute a disguised restriction on international trade. 
7.576.  With these considerations in mind, we turn to Argentina's claims that the United States' 
measures arbitrarily and unjustifiably discrimin ate between Members where identical or similar 
conditions prevail. We recall that Argentina submits three distinct claims under the first sentence 
of Article 2.3, each concerning different regions. In particular, Argentina takes issue with three forms of alleged arbitrary or unjustifiable discrimination stemming from the United States' 
measures: 
a. Discrimination between Northern Argentina and Uruguay: The United States allows 
imports of fresh (chilled or frozen) beef from Uruguay whereas it does not allow imports 
of the same products from Northern Argentina, despite the fact that the two regions are 
in "essentially the same" FMD situation; moreover, the United States conducted a risk 
analysis and issued a positive determination for Uruguay within a reasonable period of time, whereas it has maintained its prohibition on imports of products from Northern 
Argentina without a risk assessment since 2001; 
b. Discrimination between Patagonia and Santa Catarina and Chile: The United States 
recognizes Santa Catarina and Chile as FMD-free within the meaning of 94.1(a) and 
therefore allows imports of FMD-susceptibl e animals and animal products therefrom 
under the mitigating protocols in 9 CFR 94.11, whereas it does not allow imports of the same products from Patagonia, despite the fact  that the three regions are highly similar; 
moreover, the United States conducted a risk analysis and issued positive determination 
for Santa Catarina within a reasonable period of time, whereas it has maintained its 
prohibition on imports of products from Patagonia without a risk assessment since 2001; and 
                                               
1525 Panel Report, US – Poultry (China) , para. 7.147. In the context of the chapeau of Article XX of the 
GATT 1994, see Appellate Body Reports, US – Shrimp , para. 160; EC – Seal Products , para. 5.302. 
1526 Appellate Body Report, Brazil – Retreaded Tyres , para. 226 (referring to Appellate Body Reports, US 
– Gasoline ; US – Shrimp ; and US – Shrimp (Article 21.5 – Malaysia) ). See also Appellate Body Report, EC – 
Seal Products , para. 5.303; and Panel Report, US – Poultry (China) , para. 7.261. 
1527 Panel Report, US – Poultry (China) , para. 7.261. See also Panel Report, India – Agricultural 
Products , para. 7.429. 
1528 Appellate Body Report, US – Gasoline , DSR 1996:I, 3,  p. 25. 
1529 Appellate Body Report, US – Gasoline , DSR 1996:I, 3,  p. 25. 
1530 Panel Report, India – Agricultural Products , para. 7.476. WT/DS447/R  
 
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  c. Discrimination between Northern Argentina, Patagonia, Japan and the United Kingdom: 
That United States conducted risk analyses and issued positive determinations on the 
applications for imports of Japan and the United Kingdom, whereas it maintained its prohibition on imports of products from Northern Argentina and Patagonia without a risk 
assessment since 2001. 
7.577.  We address each of Argentina's claims in turn. 7.7.4.1  Discrimination between Northern Argentina and Uruguay 
7.578.  First, we assess Argentina's claim that, by allowing imports of fresh (chilled or frozen) beef 
from Uruguay under the protocols in 9 CFR 94.22 and prohibiting imports of the same products from Northern Argentina, the United States arbitrarily or unjustifiably discriminates between the two regions, which it describes as "essentially the same". Pursuant to the guidance from the panel 
in Australia – Salmon (Article 21.5 – Canada)  we must answer the following questions in order to 
determine whether Argentina has established its claim: (i) Do similar or identical conditions prevail in Northern Argentina and Uruguay? (ii) If so, do the United States' measures discriminate 
between the two regions? and (iii) If so, is the discrimination arbitrary or unjustifiable? 
7.7.4.1.1  Do similar or identical conditions  prevail in Northern Argentina and Uruguay? 
7.579.  Beginning with the first question, we must determine what conditions prevailing in 
Northern Argentina and Uruguay are relevant for th e purposes of our comparison. As stated by the 
Appellate Body, the regulatory objective of the me asure, as well as its "design", "architecture", 
and "revealing structure", inform the interpretation of the relevant conditions prevailing in the territory of a Member.
1531 As noted above, APHIS' regulatory scheme, contained in 9 CFR 94 and 
9 CFR 92.2, is designed to ensure 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.
1532 In turn, we noted that the regulatory scheme in question is implemented for the 
purpose of achieving the objective set forth in 7 USC 8303(a), namely to "prevent the introduction 
into or dissemination within the United States of any pest or disease of livestock."1533 Finally, we 
note that APHIS allows imports of fresh (chille d or frozen) beef from Uruguay subject to the 
mitigating protocols in 9 CFR 94.22, despite the fact that Uruguay is not recognized as FMD-free 
within the meaning of 9 CFR 94.1(a). The United States describes the protocols applied to Uruguay as "scientifically justified" requirements without which "import of beef from Uruguay would not meet the United States' ALOP".
1534 
7.580.  Based on the above, we consider that APHIS' regulatory framework aims at ensuring that 
imports of FMD-susceptible animals and animal products into the United States are allowed only if the level of risk posed by such imports, possibl y after the application of certain scientifically 
justified mitigating protocols, achieves the United States' ALOP for FMD. Hence, we consider that 
the condition that must be identical or similar in Northern Argentina and Uruguay in order to meet the first prong of the test is the level of risk of FMD-introduction posed by imports of fresh (chilled 
or frozen) beef from the two regions, as well as their ability to meet the United States' ALOP if 
subjected to similar mitigating protocols. This is consistent with the findings of prior panels. For instance, the panel in Australia – Salmon (Article 21.5 – Canada)  concluded that similar or 
identical conditions did not prevail in the territo ries of the two Members it compared because of 
"substantial difference[s] of disease status" between the two.
1535 Similarly, the panel in India – 
Agricultural Products  considered that the relevant conditions in its analysis referred to the 
presence of a certain disease in the territories of the Members compared.1536  
7.581.  We are mindful that, in comparing the levels of FMD-risk posed by imports of fresh (chilled 
or frozen) beef from Northern Argentina and Uruguay, we are not simply required to assess whether FMD is present in the territory of either region or to take note of the OIE FMD-status 
                                               
1531 See para. 7.572 above. 
1532 See paras. 7.37-7.41 and 7.74 above. 
1533 7 USC § 8303(a), (Exhibit USA-75). 
1534 United States' response to Panel question No. 45 following the first substantive meeting. 
1535 Panel Report, Australia – Salmon (Article 21.5 – Canada) , paras. 7.113-7.114. 
1536 Panel Report, India – Agricultural Products , paras. 7.463 and 7.468. WT/DS447/R 
 
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  assigned to such regions. Indeed, as the United States correctly observes, the level of risk posed 
by imports from the two regions is not only a func tion of their disease-prevalence in a given point 
in time, but also, and most importantly, of the credibility of the sanitary measures in place in such regions to prevent and control FMD.
1537 Thus, our assessment must include a comparison of the 
effectiveness and credibility of the sanitary meas ures in place in the two regions to prevent and 
control FMD, as well as the ability of imports from the two regions to meet the United States' ALOP – with or without the application of certain mitigating protocols.  
7.582.  In section 7.6.7.4.1 above, we found that  Northern Argentina has the necessary veterinary 
capacity and infrastructure to prevent and control FMD in its territory and the capacity to prevent incursions of the disease from neighbouring regions, and concluded that, if applied to imports of fresh (chilled or frozen) beef from that region, the protocols set forth in 9 CFR 94.22 would 
achieve the United States' ALOP for FMD.  
7.583.  We are not in a position to make specific findings as to the FMD situation and the 
credibility of the sanitary structures in Uruguay, as the scientific evidence on the record, in 
particular APHIS' 2002 risk analysis
1538, does not allow us to conduct such an assessment. This 
understanding finds support in the opinions of the experts, who stated that the information contained in APHIS' 2002 risk analysis for Uruguay does not permit a proper comparison of the 
prevention and control measures in force in the two regions.
1539 We note, however, that upon 
concluding its risk analysis in 2002, APHIS was satisfied that the measures in place in Uruguay were adequate to prevent and control the disease, and concluded that imports of fresh (chilled or 
frozen) beef from that region would achieve the Un ited States' ALOP if the protocols set forth in 
9 CFR 94.22 were applied.
1540 APHIS thus decided to reopen its market to such imports.1541 
7.584.  Based on the foregoing, we take the view that imports of fresh (chilled or frozen) beef 
from both Northern Argentina and Uruguay, if subject to the protocols under 9 CFR 94.22, would 
achieve the United States' ALOP for FMD. In light of this similarity, the relevant conditions in 
Northern Argentina and Uruguay do have "a resemblance or likeness" and are "of the same nature or kind".
1542 Therefore, we conclude that the relevant conditions in the two regions are "similar" 
within the meaning of Article 2.3. 
7.7.4.1.2  Do the United States' measures  discriminate between the two regions? 
7.585.  Turning to the second prong of the test , we recall that discrimination may arise when 
Members in which the same conditions prevail are treated differently.1543 The Appellate Body 
found, in the context of Article 5.5 of the SPS Agreement, that one of the "warning signals" 
pointing to the existence of discrimination was the "rather substantial difference" between the "import prohibition" on the relevant products originating in the territory of one Member and the 
"tolerance for imports" of another product, presenting a similar level of risk, originating in the 
territory of another Member.
1544 We agree with the Appellate Body and consider that the same 
reasoning applies to the notion of discrimination under Article 2.3, of which Article 5.5 is a 
specification.  
7.586.  Both parties acknowledge, and we agree, that imports of fresh (chilled or frozen) beef from 
Uruguay are treated differently from imports of the same products from Northern Argentina. Indeed, the former are allowed into the United States under the mitigating protocols in 
9 CFR 94.22, whereas the latter are prohibited. As observed by the panel in Australia – Salmon , 
"even … the most stringent" import conditions "would still be significantly less restrictive to trade 
                                               
1537 United States' first written submission, para. 296. 
1538 2002 Risk Assessment for Uruguay, (Exhibit ARG-65). 
1539 See e.g. Dr Cupit's responses to  Panel questions Nos. 34, 35, 36, and 37; Dr Batho's responses to 
Panel questions Nos. 35 and 36; Dr Bonbon 's response to Pane l question No. 34. 
1540 2003 Final Rule on beef from Uruguay, (Exhibit ARG-8). 
1541 2003 Final Rule on beef from Uruguay, (Exhibit ARG-8). 
1542 Shorter Oxford English Dictionary on Historical Principles , 6th ed. (Oxford University Press, 2007), 
Vol. 2, p. 2838. 
1543 Appellate Body Report, US – Shrimp , para. 165. 
1544 Appellate Body Report, Australia – Salmon , para. 163. See also Panel Report, US – Poultry (China) , 
para. 7.285. WT/DS447/R  
 
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  than an outright prohibition".1545 We agree that the difference in treatment between Northern 
Argentine and Uruguayan products is "rather substantial". Therefore, we find that the United States' measures discriminate between Northern Argentina and Uruguay. 
7.7.4.1.3  Is the discrimination  arbitrary or unjustifiable? 
7.587.  Finally, we must assess whether the discrimination entailed by the United States' 
measures is arbitrary or unjustifiable. The dictionary definition of the term "arbitrary" is "based on mere opinion or preference as opp[osed] to the real nature of things, capricious, unpredictable, 
inconsistent".
1546 In turn, the term "unjustifiable" is defined as "not justifiable, indefensible"1547, 
with "justifiable" meaning "[c]apable of being legally or morally justified or shown to be just, righteous, or innocent; defensible" and "[c]apable of being maintained, defended, or made good".
1548 
7.588.  In US – Gasoline , US – Shrimp , US – Shrimp (Article 21.5 – Malaysia) , and Brazil – 
Retreaded Tyres , the Appellate Body explained that an analysis of whether discrimination is 
arbitrary or unjustifiable within the meaning of the chapeau of Article XX "should focus on the 
cause of the discrimination, or the ration ale put forward to explain its existence".1549 In particular, 
in Brazil – Retreaded Tyres  the Appellate Body focused its analysis on whether the measure at 
issue borne a "rational connection to" its stated objective of protecting human life or health under 
subparagraph (b) of Article XX.1550 This approach was adopted by the panel in US – Poultry (China)  
in its analysis under Article 2.3 of the SPS Agreement.1551 Finally, in the context of Article 5.5 of 
the SPS Agreement, which constitutes a specification of the basic obligation contained in Article 2.3, the Appellate Body upheld the panel's finding that the measure at issue was arbitrarily 
and unjustifiably discriminatory because it treated differently two products that presented the 
same level of risk.
1552 
7.589.  Based on the foregoing, we consider that, in our assessment of whether the discrimination 
between imports of fresh (chilled or frozen) beef from Northern Argentina and Uruguay stemming 
from the United States' measures is "arbitrary or unjustifiable", we must determine whether the regulatory distinction between the two sets of imports bears a rational connection to the stated 
objective of the measures. To recall
1553, the objective of the measures at issue is to ensure that 
imports of FMD-susceptible animals and animal products into the United States are allowed only if the level of risk posed by such imports, possibl y after the application of certain "scientifically 
justified" mitigating protocols, achieves the United States' ALOP for FMD. We already found that 
imports of fresh (chilled or frozen) beef from Northern Argentina have a similar ability to achieve 
the United States' ALOP as those from Uruguay, subject to the application of the protocols set forth in 9 CFR 94.22.
1554 We also found that, while imports from Uruguay are permitted under the 
protocols in question, imports from Northern Argentina are prohibited.1555  
7.590.  Taken together, these findings constitute strong indicators, or warning signals, that the 
United States' measures arbitrarily or unjustifiably discriminate between the two regions. However, 
before reaching our conclusions, we find it appropriate to consider the United States' explanations 
as to the rationale underlying the regulatory distinction between Northern Argentina and Uruguay. 
                                               
1545 Panel Report, Australia – Salmon , para. 8.182. 
1546 Online Oxford English Dictionary  (as quoted in Panel Report, US – Poultry (China) , para. 7.259). 
1547 Online Oxford English Dictionary  (as quoted in Panel Report, US – Poultry (China) , para. 7.259). 
1548 Online Oxford English Dictionary  (as quoted in Panel Report, US – Poultry (China) , para. 7.259). 
1549 Appellate Body Report, Brazil – Retreaded Tyres , para. 226 (in turn referring to Appellate Body 
Reports, US – Gasoline ; US – Shrimp ; and US – Shrimp (Article 21.5 – Malaysia) )). See also Appellate Body 
Report, EC – Seal Products , para. 5.303. See also Panel Report, US – Poultry (China) , para. 7.261. 
1550 Appellate Body Report, Brazil – Retreaded Tyres , para. 227. 
1551 Panel Report, US – Poultry (China) , para. 7.261. See also Panel Report, India – Agricultural 
Products , para. 7.429. 
1552 Appellate Body Report, Australia – Salmon , para. 158. Further, the Appellate Body suggested that 
product being accorded a more favo urable treatment could present a higher  level of risk than the product being 
treated less favourably. See ibid. 
1553 See para. 7.580 above. 
1554 See para. 7.584 above. 
1555 See para. 7.586 above. WT/DS447/R 
 
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  7.591.  The first reason adduced by the United States to justify the difference in treatment 
between imports from Northern Argentina and Uruguay is that, at the time of the establishment of the Panel, APHIS had completed a risk analysis for the latter region and concluded that imports therefrom under the protocols in 9 CFR 94.22 would achieve the United States' ALOP.
1556 
Conversely, the United States contends, at that time APHIS was still conducting a risk analysis 
with respect to Northern Argentina, therefore it s conclusions as to the appropriateness of the 
application of the same mitigating protocols on imports therefrom were still pending.1557  
7.592.  We are not convinced by the United States' argument. In section 7.3.3.5.3 above, we 
found that APHIS' review of the FMD situation in  Northern Argentina incurred an undue delay and 
that, at the time of the Panel's establishment, APHIS has all the necessary information to complete its evaluation with respect to Northern Argentina. In our view, a Member's failure to conduct a risk 
assessment and reach a final conclusion within a reasonable period of time cannot constitute an 
excuse for not complying with the non-discrimination obligation contained in Article 2.3 of the SPS Agreement. 
7.593.  Next, the United States submits that Argentina failed to show that Northern Argentina and 
Uruguay are in identical or similar conditions with respect to FMD.
1558 In its view, the fact that the 
two countries or regions share the same OIE FMD-status does not mean that imports of fresh 
(chilled or frozen) beef therefrom present the same  level of risk of FMD-introduction into the 
United States.1559 Rather, according to the United States, the differences between two regions in 
terms of surface area, cattle population in relation to the number of veterinarians, borders with regions of higher FMD risk, and the credibility of sanitary authorities distinguish the FMD situations 
in the two regions.
1560  
7.594.  We agree with the United States that the mere fact that two countries or regions share the 
same OIE disease status is not, in and of itself, dispositive of the level of risk posed by imports 
therefrom. Indeed, the OIE confirmed at the meetin g with the Panel that, in recognizing a region 
as FMD-free where vaccination is practised, it does not conduct a comparative analysis between that region and other regions that share the same FMD-status.
1561 We recall, however, that our 
assessment of the FMD conditions prevailing in Northern Argentina was not solely based on its 
OIE FMD-status, but rather on the scientific information on the record, in accordance with the Appellate Body' guidance in Australia – Apples .
1562 Moreover, our assessment took into account all 
the 11 factors considered by APHIS when reviewin g the FMD situation in an applicant country or 
region under 9 CFR 92.2, as well as the risk assessment techniques developed by the OIE.1563 In 
our assessment, we found that factors such as th e surface area of Northern Argentina, its cattle 
population in relation to the number of veterinarians, its borders with regions of higher FMD risk, 
and the credibility of its sanitary authorities did not undermine the ability of imports from that 
region to meet the United States' ALOP if the protocols in 9 CFR 94.22 were applied.1564 Therefore, 
we consider that the alleged differences between Northern Argentina and Uruguay pointed to by 
the United States are not sufficient to show that the two regions do not share similar conditions 
with respect to FMD. 
7.595.  In light of the above, we consider that the differential treatment between imports of fresh 
(chilled or frozen) beef from Northern Argentina and Uruguay is not rationally connected to the 
objective of APHIS' regulatory scheme for FMD, namely the need to ensure that imports of 
                                               
1556 United States' response to Panel question No. 42 following the first substantive meeting. 
1557 United States' response to Panel question No. 46 following the first substantive meeting. 
1558 See e.g. United States' second written submission, para. 117; United States' opening statement at 
the first meeting of the Panel, para. 70; United States' respon se to Panel question No. 44 following the first 
substantive meeting; United States' second written submission, para. 123; United States' opening statement at the second meeting of the Panel, para. 72.  
1559 See e.g. United States' second written submission, paras. 119-123. 
1560 United States' first written submission, para. 297 (referring to Ibid. paras. 308-310). 
1561 Transcript of the meeting, para. 1.123. The OIE st ated, that "[i]f the OIE grants a status to a 
country or a zone, that is an evaluati on of the probability of the virus bein g present. Having granted that status 
the appropriate measures to be applie d are those in the Code and, after that, we encourage the countries to 
use those measures because they are safe." See Transcript of the meeting, para. 1.129.  
1562 See paras. 7.440-7.449 above. 
1563 See paras. 7.450-7.452 above. 
1564 See section 7.6.7.4.1 above. WT/DS447/R  
 
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  FMD-susceptible animals and animal products into the United States are allowed only if the level of 
risk posed by such imports, possibly after the a pplication of certain "scientifically justified" 
mitigating protocols, achieves the United States' ALOP for FMD.  
7.596.  Based on all the foregoing, we conclude that, by importing fresh (chilled or frozen) beef 
from Uruguay under the protocols in 9 CFR 94.22 and prohibiting imports of the same product 
from Northern Argentina, the United States' measures arbitrarily or unjustifiably discriminate between Members where the same conditions prevail, inconsistently with the first requirement of 
Article 2.3 of the SPS Agreement.  
7.597.  Having made such a determination, we find that addressing Argentina's claim that, by 
conducting a risk analysis and issuing a positive determination for Uruguay within a reasonable period of time, while maintaining its prohibition on imports from Northern Argentina without a risk 
assessment since 2001, the United States further discriminates between the two regions in terms 
of access to APHIS' regulatory process would not aid in securing a positive resolution to this dispute. Therefore, we exercise judicial economy on Argentina's claim. 
7.598.  As discussed in paragraph 7.575 above, we consider that a finding that a measure results 
in arbitrary or unjustifiable discrimination necessarily entails a finding that it constitutes a disguised restriction on international trade. Therefore, we find that the United States' measures at 
issue are applied in a manner that constitutes a disguised restriction on international trade, 
inconsistently with the second requiremen t of Article 2.3 of the SPS Agreement. 
7.7.4.2  Discrimination between Pa tagonia, Santa Catarina, and Chile 
7.599.  We now turn to Argentina's claim that, by recognizing Santa Catarina and Chile as 
FMD-free within the meaning of 9 CFR 94.1(a) and applying the protocols under 9 CFR 94.11 to 
imports of FMD-susceptible animal products theref rom, while excluding from its market the same 
products from Patagonia, the United States arbitrarily or unjustifiably discriminates between the 
two regions. As stated in paragraph 7.578 above, our assessment will proceed in three steps: 
(i) Do similar or identical conditions prevail in Patagonia, Santa Catarina, and Chile?; (ii) If so, do the United States' measures discriminate betw een those regions?; and (iii) If so, is the 
discrimination arbitrary or unjustifiable? 
7.7.4.2.1  Do similar or identical conditio ns prevail in Patagonia, Santa Catarina, and 
Chile? 
7.600.  Beginning with the first question, we recall that, as discussed in paragraphs 7.579-7.580 
above, the relevant condition that must be identical or similar in two regions in light of the 
objective, design, architecture, and revealing struct ure of the United States' measures is the level 
of risk of FMD-introduction posed by imports of th e relevant products from the two regions, as well 
as their ability to meet the United States' ALOP with or without the application of certain mitigating 
protocols. We find it appropriate to use the same standard here.  
7.601.  We are mindful that, in comparing the levels of FMD-risk posed by imports of 
FMD-susceptible animals and animal products from Patagonia, Santa Catarina and Chile, we are 
not simply required to assess whether FMD is present in the territory of each region or to take note of the OIE FMD-status assigned to such regions. Indeed, as the United States correctly observes, the level of risk posed by imports from the two regions is not only a function of their 
disease-prevalence in a given point in time, but also, and most importantly, of the credibility of the 
sanitary measures in place in such regions to prevent and control FMD.
1565 Thus, our assessment 
must include a comparison of the effectiveness and credibility of the sanitary measures in place in 
the above-mentioned regions to prevent and control FMD, as well as the ability of imports from the 
two regions to meet the United States' ALOP – with or without the application of certain mitigating protocols.  
7.602.  In section 7.6.7.4.2 above, we found that Patagonia has the necessary veterinary capacity 
and infrastructure to prevent and control FMD in it s territory and to ensure that the region remains 
                                               
1565 United States' first written submission, para. 296. WT/DS447/R 
 
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  free from the disease, as it has been since 1994. We also found that, if Patagonia were added to 
the list of FMD-free regions in 9 CFR 94.1(a) and its imports of the relevant products were subject to the protocols set forth in 9 CFR 94.11, the United States' ALOP for FMD would be achieved.  
7.603.  We note that, in 2010, APHIS completed a favourable risk analysis for Santa Catarina.
1566 
Such an evaluation used a qualitative methodology and was based on the 11 factors set out in the 
pre-2012 version of 9 CFR 92.2, thus similar in method and scope to our assessment of Patagonia in paragraphs 7.512-7.539 above. Based on its analysis of the 11 factors, APHIS concluded that 
"Santa Catarina possesses the detection capabilities, reporting systems, and emergency response 
systems necessary to combat FMD".
1567 As a result, APHIS added the region to the list in 
9 CFR 94.1(a) and allowed imports of FMD-susceptible animal products therefrom subject to the protocols in 9 CFR 94.11.
1568 Similarly, APHIS has long recognized Chile as FMD-free within the 
meaning of 9 CFR 94.1(a) and allows imports of the relevant products therefrom under 
9 CFR 94.11.1569 
7.604.  Taken together, the findings above indicate that Patagonia, Santa Catarina, and Chile all 
possess the necessary veterinary capacity and infrastructure to prevent and control FMD. In their 
responses to Panel questions, the experts took the view that, based on the evidence on the record, 
several aspects of the sanitary measures in place in Patagonia and Santa Catarina to prevent and 
control FMD are comparable in terms of efficacy.1570 Moreover, imports of FMD-susceptible animals 
and animal products from all three regions present a level of risk that, if mitigated by the protocols in 9 CFR 94.11, would achieve the United States' ALOP for FMD. Based on the foregoing, we take the view that the relevant conditions in Patagonia, Santa Catarina and Chile do have "a 
resemblance or likeness" and are "of the same nature or kind"
1571, and are therefore similar within 
the meaning of Article 2.3. 
7.7.4.2.2  Do the United States' measur es discriminate between Patagonia, Santa 
Catarina, and Chile? 
7.605.  Turning to the second prong of the test , we recall that, as discussed in paragraph 7.585 
above, "discrimination" may arise when Members in which the same conditions prevail are treated 
differently.1572 Further, according to the Appellate Body, a warning signal of discrimination is the 
substantial difference in treatment between an import prohibition on products originating in the territory of one Member and the permission of imports of products presenting an equivalent level of risk originating in the territory of another Member.
1573 Indeed, the Appellate Body took the view 
that "even … the most stringent" import conditions "would still be significantly less restrictive to 
trade than an outright prohibition".1574 
7.606.  The parties acknowledge, and we agree, that imports of FMD-susceptible animals and 
animal products from Santa Catarina and Chile ar e treated differently from imports of the same 
products from Patagonia. Indeed, the former are allowed into the United States under the mitigating protocols in 9 CFR 94.11, whereas the latter are prohibited. We consider that this 
difference in treatment is substantial, and therefore find that it amounts to discrimination 
between, on the one hand, Patagonia and, on the other hand, Santa Catarina and Chile.  
                                               
1566 2010 Risk Evaluation for Santa Catarina, (Exhibit ARG-7). 
1567 2010 Risk Evaluation for Santa Catarina, (Exhibit ARG-7), p. 63. 
1568 Changes in the Disease Status of the Brazilian St ate of Santa Catarina with Regard to Certain 
Ruminant and Swine Diseases , 75 Fed. Reg. 69851 (USDA/APHIS November 16, 2010) (Final Rule), 
(Exhibit ARG-21). 
1569 See APHIS website, Foot-And-Mouth and Rinderpest , available at 
http://www.aphis.usda.gov/import _export/animals/animal_disease_status.shtml (last accessed 
23 January 2015), incorporated in 9 CFR 94.1(a), (Exhibit ARG-64). 
1570 See e.g. Dr Cupit's responses to Panel questions Nos. 38, 39, and 40; Dr Batho's responses to Panel 
questions Nos. 38, 39, and 40; Dr Bonbon's responses to Panel questions Nos. 38, 39, and 40. 
1571 Shorter Oxford English Dictionary on Historical Principles , 6th ed. (Oxford University Press, 2007), 
Vol. 2, p. 2838. 
1572 Appellate Body Report, US – Shrimp , para. 165. 
1573 Appellate Body Report, Australia – Salmon , para. 163. See also Panel Report, US – Poultry (China) , 
para. 7.285. 
1574 Panel Report, Australia – Salmon , para. 8.182. WT/DS447/R  
 
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  7.7.4.2.3  Is the discrimination  arbitrary or unjustifiable? 
7.607.  Finally, we must assess whether the discrimination entailed by the United States' 
measures is arbitrary or unjustifiable. As explained in paragraphs 7.587-7.589 above, we consider that, in assessing whether the United States' discrimination between imports of FMD-susceptible 
animals and animal products from Patagonia, Santa Catarina and Chile is "arbitrary or 
unjustifiable", we must determine whether the re gulatory distinction between the two sets of 
imports bears a rational connection to the stated objective of the measures. To recall
1575, the 
objective of the measures at issue is to ensure that imports of FMD-susceptible animals and animal 
products into the United States are allowed only if the level of risk posed by such imports, possibly after the application of certain "scientifically justified" mitigating protocols, achieves the United States' ALOP for FMD. We already found that imports of FMD-susceptible animals from 
Patagonia have a similar ability to achieve the United States' ALOP as those from Santa Catarina 
and Chile, subject to the application of  the protocols set forth in 9 CFR 94.11.
1576 We also found 
that, whereas imports from Santa Catarina and Chile are permitted under the protocols in 
question, imports from Patagonia are prohibited.  
7.608.  Taken together, these findings constitute strong indicators, or warning signals, that the 
United States' measures "arbitrarily or unjustifiably discriminate" between the above-mentioned 
regions. However, before reaching our conclusions, we find it appropriate to consider the 
United States' explanations as to the rationale underlying the regulatory distinction between, on 
the one hand, Patagonia and, on the other hand, Santa Catarina and Chile. 
7.609.  In the United States' view, the "key differentiation"1577 between Patagonia and Santa 
Catarina, justifying the difference in treatment between imports from the two regions, is the fact 
that, at the time of the establishment of the Panel, APHIS had drawn "a conclusion as to the appropriateness of the import authorization terms" applied to imports from Santa Catarina.
1578 
Conversely, it contends, at that time APHIS was st ill conducting a risk analysis with respect to 
Patagonia, and this delay was justified by the fact that, in 2008, SENASA extended its original request for the recognition of Patagonia South to include Patagonia North B and introduced 
"changes to the sanitary boundaries" between the two areas.
1579 
7.610.   We are not convinced by the United States' argument. In section 7.3.3.5.4 above, we 
found that APHIS' review of the FMD situation in  Patagonia incurred an undue delay and that, at 
the time of the Panel's establishment, APHIS ha d all the necessary information to complete its 
evaluation with respect to that region. In particul ar, while we agreed with the United States that 
Argentina's extension of its original request to include Patagonia North B and the changes in SENASA's regulatory framework for the Patagonia region justified APHIS' delay between 
December 2008 and February 2009
1580, we found that such occurrences could not justify APHIS' 
further delay between February 2009 and the date of the establishment of the Panel.1581 In our 
view, a Member's failure to conduct a risk assessment and reach a final conclusion within a 
reasonable period of time cannot constitute an excuse for not complying with the non-
discrimination obligation contained in Article 2.3 of the SPS Agreement. Moreover, we found that the enactment of SENASA Resolutions 148/2008 an d 1282/2008 did not create uncertainty as to 
SENASA's ability to control the ingress of FMD- susceptible animals and animal products from 
Northern Argentina into Patagonia, but rather reinforced traceability and animal movement 
controls within the Patagonia region.
1582 
7.611.  As for the discrimination between Patagonia and Chile, we note that the United States did 
not put forward any arguments as to differences that would warrant a regulatory distinction 
between such regions. Indeed, the only argument pr esented by the United States is that the fact 
that Patagonia and Chile share the same OIE FMD- status recognition is not, in and of itself, 
                                               
1575 See para. 7.580 above. 
1576 See para. 7.604 above. 
1577 United States' first written submission, para. 318. 
1578 United States' first written submission, para. 298. 
1579 United States' first written submission, para. 318. See also Ibid. para. 298. 
1580 See paras. 7.167-7.168 above. 
1581 See paras. 7.169-7.170 above. 
1582 See para. 7.528 above. WT/DS447/R 
 
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  dispositive of whether imports from the two regions should be treated similarly.1583 As noted in 
paragraph 7.601 above, we agree with the United States that sharing the same OIE FMD-status recognitions does not, in and of itself, constitute conclusive evidence of identity or similarity between two or more regions. However, since we found that imports from both Patagonia and 
Chile are able to meet the United States' ALOP if subjected to the protocols under 9 CFR 94.11. 
Moreover, we take the view that it was incumbent on the United States to provide a justification 
for its discriminatory treatment of such imports, but we find no such justification on the record. 
7.612.  In light of the above, we disagree that the elements referred to by the United States 
justify a regulatory distinction between, Patagonia – from which imports are prohibited – on the one hand, and Santa Catarina and Chile – from  which imports are permitted subject to the 
protocols in 9 CFR 94.11, on the other hand. Thus, we consider that the differential treatment 
between the above-mentioned regions is not rati onally connected to the objective of APHIS' 
regulatory scheme for FMD, namely the need to ensure that imports of FMD-susceptible animals 
and animal products into the United States are allowed only if the level of risk posed by such 
imports, possibly after the application of certain "scientifically justified" mitigating protocols, 
achieves the United States' ALOP for FMD.  
7.613.  Based on all the foregoing, we conclude that, by recognizing Santa Catarina and Chile as 
FMD-free within the meaning of 9 CFR 94.1(a) and applying the protocols in 9 CFR 94.11 to the 
relevant imports therefrom, while prohibiting imports from Patagonia, the United States' measures arbitrarily or unjustifiably discriminate between  Members where the same conditions prevail, 
inconsistently with Article 2.3 of the SPS Agreement. 
7.614.  Having reached such a conclusion, we are of the view that a finding on Argentina's claim 
that, by conducting a risk analysis and issuing a positive determination for Santa Catarina within a reasonable period of time, while maintaining its prohibition on imports from Patagonia without a 
risk assessment since 2001, the United States fu rther discriminates between the two regions in 
terms of access to APHIS' regulatory process would not aid in securing a positive resolution to this dispute. Therefore, we exercise judicial economy on this claim. 
7.615.  As discussed in paragraph 7.575 above, we consider that a finding that a measure results 
in arbitrary or unjustifiable discrimination necessarily entails a finding that it constitutes a disguised restriction on international trade. Therefore, we find that the United States' measures at issue are applied in a manner that constitutes a disguised restriction on international trade, 
inconsistently with the second requiremen t of Article 2.3 of the SPS Agreement. 
7.7.4.3  Discrimination be tween Northern Argentina, Patagonia, Japan, and the 
United Kingdom 
7.616.  Finally, we turn to Argentina's claims that the United States arbitrarily or unjustifiably 
discriminated between, on the one hand, Northern Argentina and Patagonia and, on the other hand, Japan and the United Kingdom. APHIS completed its risk analyses and issued favourable 
determinations vis-à-vis  imports of FMD-susceptible animals and animal products from Japan and 
the United Kingdom within approximately two to three years of the filing of the respective 
applications under 9 CFR 92.2.
1584 Conversely, as discussed in more detail in section 7.3.3 above, 
the United States has maintained its prohibitions on imports of fresh (chilled or frozen) beef from 
Northern Argentina and of FMD-susceptible anim als and animal products from Patagonia since 
2001. In Argentina's view, by doing so, APHIS granted "much greater and swifter access to its regulatory systems and processes" to Japan and the United Kingdom than to Argentina.
1585 The 
United States submits that Argentina's claim must fail because Argentina failed to show that 
similar or identical conditions with respect to FMD prevail in the regions to be compared.1586 
7.617.  Mindful of the test set forth by the panel in Australia – Salmon (Article 21.5 – Canada) , we 
must answer the following questions in order to determine whether Argentina has established its 
claim: (i) Do similar or identical conditions prevail in Northern Argentina, Patagonia, Japan and the 
                                               
1583 United States' response to Panel question No. 39 following the first substantive meeting. 
1584 See United States' response to Panel question No. 36 following the second substantive meeting.  
1585 Argentina's second written submission, para. 229. 
1586 See e.g. United States' second written submission, para. 122. WT/DS447/R  
 
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  United Kingdom? (ii) If so, do the United Stat es' measures discriminate between those regions? 
and (iii) If so, is the discrimination arbitrary or unjustifiable?  
7.618.  Beginning with the first prong of the test, in paragraphs 7.579-7.580 above we found that 
the relevant condition that must be "identical or similar" in two or more regions in light of the 
objective, design, architecture, and revealing struct ure of the United States' measures is the level 
of risk of FMD-introduction posed by imports of th e relevant products from the two regions, as well 
as their ability to meet the United States' ALOP with or without the application of certain mitigating 
protocols.  
7.619.  Argentina has presented no evidence that such a condition in Northern Argentina and 
Patagonia is identical or similar to the condition in Japan or the United Kingdom. Indeed, Argentina concedes that the substantive FMD situations of  Northern Argentina and Patagonia, on the one 
hand, and the United Kingdom and Japan, on the other, are not necessarily identical.
1587 However, 
in its view, the condition that is relevant to our assessment here is that all the above-mentioned regions "had FMD outbreaks" and have an interest in having "their export rights provided by the 
[United States] through full access to the United States' regulatory system".
1588 In other words, 
Argentina contends that the condition relevant to our assessment is the common desire of the regions at hand to have their market access requests under 9 CFR 92.2 reviewed by APHIS within 
a reasonable period of time. 
7.620.  We note that, according to the panel in US – Poultry (China) , discrimination may stem not 
only from "'substantive' SPS measures", but also from "procedural and information requirements".
1589 In that dispute, under the measure at issue, China was de jure  excluded from 
accessing the regulatory system of the United States, whereas other Members could access the 
system by submitting requests for imports of the relevant products.1590 In light of the specific facts 
of that case, that panel found that the relevant condition for the purpose of a comparison of 
"identical or similar conditions" was the desire to access the regulatory process of the importing 
Member for the purpose of gaining market access.1591 In this respect, the panel's reasoning is 
similar to that of the Appellate Body in US – Shrimp , where it stated that discrimination between 
two exporting countries stemmed from the fact that the measure at issue "[did] not allow for any 
inquiry into the appropriateness of the regulatory program for the conditions prevailing in those exporting countries".
1592  
7.621.  In our view, APHIS' regulatory framework for FMD differs from the measures at issue in US 
– Poultry (China)  and US – Shrimp . Under 9 CFR 92.2, any exporting Member may submit a 
request for recognition of a region as FMD-free within the meaning of 9 CFR 94.1(a). In other words, the only condition required to activate  APHIS' regulatory process is the interest to export 
FMD-susceptible animals or animal products into the United States, expressed by submitting a 
request. However, we consider that the conditions required for APHIS' review being completed  and 
a final determination being issued require something more than such an interest. Indeed, the 
timing and outcome of APHIS' review of a specific request do not depend simply on the desire of 
the applicant Member to access the United States ' market, but rather on the level of risk of 
FMD-introduction posed by imports of the relevant products from that Member. In other words, as 
we found above, the approval procedures set forth in 9 CFR 92.2 are part of the process to 
determine whether the relevant products from a specific country or region pose a particular risk of 
introduction or dissemination of FMD into the United States.
1593 As we see it, the design, 
architecture, and revealing structure of the United States' measure at issue indicate that the 
length of time APHIS' review of a request may vary considerably based on the complexity of the 
factual situation in the region being reviewed. 
                                               
1587 Argentina's second written submission, para. 230. 
1588 Argentina's second written submission, para. 231. See also Argentina's response to Panel question 
No. 35 following the second substantive meeting.  
1589 Panel Report, US – Poultry (China) , para. 7.147. In the context of the chapeau of Article XX of the 
GATT 1994, see Appellate Body Reports, US – Shrimp , para. 160; EC – Seal Products , para. 5.302. 
1590 See Panel Report, US – Poultry (China) , para. 7.233. 
1591 Panel Report, US – Poultry (China) , paras. 7.233-7.237.  
1592 Appellate Body Report, US – Shrimp , para. 165. 
1593 See paras. 7.37-7.41, 7.74 above. WT/DS447/R 
 
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  7.622.   Argentina has not presented any evidence that the specific factual circumstances in 
Northern Argentina and Patagonia are identical or similar to those in Japan and the United Kingdom in terms of the information presented to APHIS in support of the applications or the complexity of APHIS' evaluation in light of the specific sanitary conditions present in each region. 
Conversely, the United States pointed to a number of variables that, in its view, justified APHIS' 
swifter evaluation of the requests of Japan and the United Kingdom vis-à-vis Argentina's requests. 
Such variables include the fact that both Japan and the United Kingdom are island countries which 
do not share land borders with regions of higher FMD-risk.
1594 Argentina has not addressed these 
relevant factual differences between the situations  in Northern Argentina and Patagonia and those 
in Japan and the United Kingdom. Therefore, we  are not convinced that Argentina has made its 
case that the relevant conditions in the above-mentioned regions are identical or similar within the 
meaning of Article 2.3. 
7.623.  In light of the above, we find that Argentina failed to demonstrate that the United States' 
measures arbitrarily or unjustifiably discriminate between, on the one hand, Northern Argentina 
and Patagonia and, on the other hand, Japan and the United Kingdom. 
7.8  Adaptation to regional conditions 7.8.1  Relevant legal provisions 
7.624.  The text of Article 6 of the SPS Agreement, entitled "Adaptation to Regional Conditions, 
Including Pest- or Disease-Free Areas and Areas of Low Pest or Disease Prevalence", reads as follows: 
1. Members shall ensure that their sanitary or phytosanitary measures are adapted 
to the sanitary or phytosanitary characteristics of the area – whether all of a country, 
part of a country, or all or parts of several countries – from which the product originated and to which the product is destined. In assessing the sanitary or 
phytosanitary characteristics of a region, Members shall take into account, inter alia , 
the level of prevalence of specific diseases  or pests, the existence of eradication or 
control programmes, and appropriate criteria or guidelines which may be developed 
by the relevant international organizations. 
2.  Members shall, in particular, recognize the concepts of pest- or disease-free 
areas and areas of low pest or disease prevalence. Determination of such areas shall be based on factors such as geography, ecosystems, epidemiological surveillance, and 
the effectiveness of sanitary or phytosanitary controls. 
3.  Exporting Members claiming that areas within their territories are pest- or 
disease-free areas or areas of low pest or disease prevalence shall provide the 
necessary evidence thereof in order to objectively demonstrate to the importing 
Member that such areas are, and are likely to remain, pest- or disease-free areas or 
areas of low pest or disease prevalence, respectively. For this purpose, reasonable 
access shall be given, upon request, to the importing Member for inspection, testing 
and other relevant procedures. 
7.625.  Annex A(6) and A(7) set forth the definitions of "pest- or disease-free areas" and "areas of 
low pest or disease prevalence", respectively, as: 
6. Pest- or disease-free area  – An area, whether all of a country, part of a country, 
or all or parts of several countries, as identi fied by the competent authorities, in which 
a specific pest or disease does not occur.  
NOTE: A pest- or disease-free area may surround, be surrounded by, or be 
adjacent to an area – whether within part of a country or in a geographic region which includes parts of or all of several countries – in which a specific pest or disease is 
known to occur but is subject to regional control measures such as the establishment 
                                               
1594 United States' first written submission, paras. 313 and 315. WT/DS447/R  
 
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  of protection, surveillance and buffer zones which will confine or eradicate the pest or 
disease in question. 
7. Area of low pest or disease prevalence  – An area, whether all of a country, part 
of a country, or all or parts of several countries, as identified by the competent 
authorities, in which a specific pest or disease occurs at low levels and which is 
subject to effective surveillance, control or eradication measures. 
7.8.2  Main arguments of the parties 
7.8.2.1  Argentina 
7.626.  Argentina claims that the United States' prohibition on imports of FMD-susceptible animals 
and animal products from Patagonia has been maintained inconsistently with Articles 6.1 and 6.2 of the SPS Agreement. Argentina argues that Articles 6.1 and 6.2 impose "complementary" 
obligations
1595, contending that Article 6.2 "particularize[s] and supplement[s]" the broader 
obligations contained in Article 6.1.1596 Thus, according to Argentina, a measure inconsistent with 
Article 6.1 is, by implication, inconsistent with Article 6.2.1597 Further, Argentina considers that the 
factors listed in Articles 6.1 and 6.2 must be co nsidered by the authorities of a Member when 
evaluating the sanitary status of a region in the context of a risk assessment conducted under Articles 5.1 and 5.2 of the SPS Agreement.
1598 Therefore, in its view, a breach of Articles 6.1 or 
6.2 would necessarily lead to a violation of Articles 5.1 and 5.2.1599 
7.627.  Beginning with Article 6.1, Argentina submits that the provision in question requires an 
importing Member to adapt its measure(s) to the SPS characteristics of a region, taking into account the factors listed in the second sentence, including the "appropriate criteria or guidelines" 
developed by the relevant international organizations.
1600 In Argentina's view, the OIE's region-
specific disease status determinations are such criteria or guidelines.1601 Argentina claims that, in 
adopting and maintaining its measure, the United States failed to take into account: the "level of 
prevalence of specific diseases or pests" in Patagonia South, which has been free from FMD since 
1976, and in Patagonia North B, which has been free from FMD since 19941602; the "exemplary 
eradication and control program" SENASA put in place, whose adequacy has been acknowledged 
by APHIS on several occasions1603; and the "appropriate criteria or guidelines" developed by the 
OIE, which has recognized the FMD-free where vaccination is not practised status of Patagonia South in 2002 and of Patagonia North B in 2007.
1604  
7.628.  As for Article 6.2, Argentina does not express views as to whether APHIS' regulatory 
scheme set forth in 9 CFR 92.2 and 9 CFR 94, "as such", recognizes the concepts of disease-free 
areas and areas of low disease prevalence.1605 However, Argentina claims that, as applied to the 
relevant products originating in Patagonia1606, the maintenance of the United States' measure is 
"not based on the factors listed in Article 6.2".1607 Specifically, according to Argentina, the 
United States disregarded: the "geography" of Pata gonia, in particular its isolation from Northern 
Argentina and its distance from the 2006 FMD outbreak in the province of Corrientes1608; the 
                                               
1595 Argentina's second written submission, para. 238; Argentina's response to Panel question No. 45 
following the second substantive meeting. 
1596 Argentina's first written submission, para. 548. 
1597 Argentina's first written submission, para. 548. 
1598 Argentina's response to Panel question No. 49 following the first substantive meeting.  
1599 Argentina's response to Panel question No. 49 following the first substantive meeting.  
1600 Argentina's response to Panel question No . 53 following the first substantive meeting. 
1601 Argentina's response to Panel question No . 53 following the first substantive meeting. 
1602 Argentina's first written submission, para. 535. 
1603 Argentina's first written submission, paras. 539-541. 
1604 Argentina's first written submission, para. 542. 
1605 Argentina's response to Panel question No. 43 following the second substantive meeting. 
1606 Argentina's first written submission, para. 543; Argentina's opening statement at the first meeting 
of the Panel, para. 77. 
1607 Argentina's first written submission, para. 551. 
1608 Argentina's first written submission, para. 554. WT/DS447/R 
 
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  ecosystem of Patagonia, which is "naturally FMD-free"1609; and the FMD surveillance and control 
programs put in place by SENASA, whose adequacy was recognized by APHIS.1610  
7.629.  With respect to its own obligations under Article 6.3, Argentina acknowledges that, in 
principle, non-compliance with those obligations "stands as a potential affirmative defence by a 
respondent to claims under Articles 6.1 and 6.2".1611 It maintains, however, that the United States 
has "failed to substantiate its assertions"1612 that Argentina did not comply with its obligations to 
"objectively demonstrate" the disease-free status of Patagonia within the meaning of Article 6.3. 
Argentina submits that, in 2009, APHIS stated in a le tter that it had "all the information" required 
to "proceed favourably".1613 According to Argentina, this fact, coupled with the United States' 
representative's statements before the SPS Committee in 2010 and 2011, demonstrates that "Argentina had fulfilled its obligations under Article 6.3".
1614  
7.8.2.2  United States 
7.630.  The United States disagrees with Argentina that the prohibition on imports of 
FMD-susceptible animals and animal products from Patagonia is inconsistent with Articles 6.1 
and 6.2.  
7.631.  The United States argues that the thr ee paragraphs of Article 6 of the SPS Agreement 
"should be read together", as they provide "context for each other".1615 In its responses to Panel 
questions, the United States asserts that the recognition of the "concepts of pest- or disease-free 
areas and areas of low pest or disease prevalence" under Article 6.2 is a "particular step" towards a Member's fulfilment of its obligation to ensure that SPS measures are adapted to the characteristics of an area under Article 6.1.
1616 
7.632.  With respect to Argentina's claim under Article 6.1, the United States argues that the 
requirement for the importing Member to "adapt" an SPS measure to the sanitary characteristics of an area should be read in light of the requiremen t in Article 6.3 that the exporting Member "bring 
forth the necessary evidence to show that it is and is 'likely to remain' free of disease".
1617 The 
United States argues that Article 6.3 recognizes that, when confronted with an assertion that an 
exporting Member is free of a disease, the importing Member will not have sufficient relevant 
scientific evidence to evaluate that assertion.1618 The United States argues that Article 6 
contemplates "a dynamic process" whereby "information is brought to the attention of an importing Member" and the importing Member "engages in a process by which it evaluates the information and amends its measures" in light of the characteristics of that area.
1619 For the 
United States, such a claim of disease freedom  and the concomitant need to evaluate new 
information results in any existing measure becoming a provisional measure that falls within the scope of Article 5.7, which requires that an importing Member review its measure, including any 
adaptation to the sanitary characteristics of the exporting region, within a reasonable period of 
time.
1620  
                                               
1609 Argentina's first written submission, para. 557. However, we note that Argentina has not provided 
evidence to substantiate this statement. 
1610 Argentina's first written submission, paras. 558-565. 
1611 Argentina's response to Panel question No. 49 fo llowing the first substantive meeting. See also 
Argentina's second written submission, para. 242. 
1612 Argentina's response to Panel question No . 48 following the first substantive meeting. 
1613 Argentina's response to Panel question No . 48 following the first substantive meeting. 
1614 Argentina's response to Panel question No. 48 fo llowing the first substantive meeting. See also 
Argentina's opening statement at the second meeting of the Panel, para. 61. 
1615 United States' response to Panel question No. 49 following the first substantive meeting. 
1616 United States' response to Panel question No. 46 following the second substantive meeting. 
1617 United States' response to Panel question No. 22 following the first substantive meeting. See also 
United States' response to Panel question No . 49 following the first substantive meeting. 
1618 United States' response to Panel question No. 22 following the first substantive meeting. 
1619 United States' response to Panel question No. 54 following the first substantive meeting. See also 
United States' opening statement at the first meeting of the Panel, para. 56. 
1620 United States' response to Panel question No. 29 following the first substantive meeting. See also 
United States' response to Panel question No . 51 following the first substantive meeting. WT/DS447/R  
 
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  7.633.  The United States notes that "a process of information exchange" began when APHIS 
sought information from Argentina in response to Argentina's request.1621 It argues that because 
of the concerns raised by subsequent FMD outbreaks in Northern Argentina in 2003 and 2006 and Argentina's "shifting [of] sanitary conditions between Patagonia South and Patagonia North B", and 
the expansion of Argentina's request for recognition to include Patagonia North B, APHIS extended 
the time taken to conclude its review.
1622 The United States thus asserts that the fact that, at the 
time of the establishment of the Panel, APHIS was still in the process of "adapting" its measure to 
the SPS characteristics of Patagonia is not due to any inconsistency on its part with Article 6.1, but 
rather to APHIS' justified uncertainty as to whether Argentina objectively demonstrated that Patagonia was, and was likely to remain, FMD-free.
1623  
7.634.  Further, the United States asserts that, as OIE FMD-status determinations for specific 
countries or regions do not constitute "international standards, guidelines or recommendations for 
the purposes of Article 3, they also do not fall within the scope of "criteria or guidelines" under Article 6.1.
1624 In the United States' opinion, both the terms "criterion" and "guideline" refer to 
directing or standardizing principles, whereas the OIE's disease status designations constitute 
"conclusion[s]" or "outcome[s]" of the application of such principles to a specific situation.1625 
7.635.  As to Argentina's claim under Article 6.2, the United States argues that the measure at 
issue is consistent with the requirement to "recognize" or "acknowledge[e] the existence of the 
idea or notion  of pest- or disease-free areas".1626 Indeed, the United States observes, APHIS' 
regulatory framework set forth in 9 CFR 92.2 and 9 CFR 94 does, as such, "recognize the concepts" of FMD-free areas and areas of low FMD prevalence.
1627 
7.8.3  Main arguments of the third parties 
7.8.3.1  Brazil 7.636.  Brazil submits that
 Article 6.1 of the SPS Agreement sets forth a general obligation for 
Members to adapt their measures to the actual SPS characteristics of the "area" from which the 
product originated and to which the product is destined.1628 In turn, according to Brazil, Article 6.2 
details the obligations under Article 6.1 by requir ing that Members recognize the concepts of pest- 
or disease-free areas and areas of low pest or disease prevalence, where the exporting Member 
provides evidence for this claim.1629 Finally, for Brazil Article 6.3 requires the exporting Member to 
provide the necessary evidence in order to object ively demonstrate to the importing Member that 
certain areas of its territory are pest- or disease-free.1630  
7.637.  Brazil also observes that Article 6 should be read in the context of Articles 2.2 and 5.1. 
Accordingly, when considering the area of an expo rting Member that is considered a "disease-free 
area" in light of the evidence provided by that  Member under Article 6.3, the importing Member 
may refuse to recognize a pest- or disease-free area only on the basis of Article 5, especially 
Article 5.2, which establishes that "in the assessm ent of risks, Members shall take into account … 
existence of pest- or disease-free areas".1631  
                                               
1621 United States' opening statement at the first me eting of the Panel, para. 57. See also SENASA's 
letter of 30 December 2002, (Exhibit USA-79). 
1622 United States' opening statement at the first meeting of the Panel, para. 57. 
1623 United States' first written submission, para. 342. See also United States' opening statement at the 
first meeting of the Panel, paras. 56- 57; United States' respon se to Panel question No. 22 following the first 
substantive meeting; United States' response to Panel question No. 49 following the first substantive meeting. 
1624 United States' response to Panel question No. 53 following the first substantive meeting, para. 219; 
United States' response to Panel question No. 49 following the second substantive meeting. 
1625 United States' response to Panel question No. 53 following the first substantive meeting. 
1626 United States' response to Panel question No. 54 following the first substantive meeting. 
1627 United States' response to Panel question No. 54 following the first substantive meeting. See also 
United States' opening statement at the first meeting of the Panel, para. 61. 
1628 Brazil's response to Panel question No. 16. 
1629 Brazil's response to Panel question No. 16. 
1630 Brazil's response to Panel question No. 16. 
1631 See also Brazil's responses to Panel questions Nos. 16 and 17. WT/DS447/R 
 
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  7.8.3.2  European Union 
7.638.  The European Union takes the view that  the three paragraphs of Article 6 of the 
SPS Agreement, read together, "create a balance of rights and obligations between exporting and 
importing Members". In particular, according to th e European Union, the disciplines of Article 6.1 
and Article 6.2 apply to both importing and expo rting Members, as evidenced by the fact that 
Article 6.1 refers to both the area from which a product "originated" and the area to which the product "is destined".
1632  
7.639.  According to the European Union, Article 6.3 requires exporting Members wishing to show 
that certain parts of their territory "should not be subject to SPS measures" of importing Members to provide the authorities of the importing Memb ers with evidence necessary to "objectively 
demonstrate" that certain areas are, and are likel y to remain, free of the disease in the future.
1633 
Thus, for the European Union, the obligation of an importing Member to adapt its measure to the 
SPS characteristics of a particular area of the exporting Member is conditional upon the exporting Member's ability to objectively demonstrate that the specific area possesses those 
SPS characteristics and is likely to continue possessing them.
1634 
7.8.4  Analysis by the Panel 7.640.  We are faced with the need to resolve seve ral issues in connection with the interpretation 
of Article 6 before we can apply such a provision to Argentina's claims and the United States' 
defences. In particular, we shall elucidate the meaning of the obligations contained in Articles 6.1, 6.2, and 6.3, after which we will turn to an assessment of the interactions between the three 
paragraphs. 
7.8.4.1  The obligations under Article 6.1 
7.641.  The first sentence of Article 6.1 requires all Members to "ensure" that their SPS measures 
are "adapted" to the SPS characteristics of the area "from which the product originated and to 
which the product is destined". The term "area" is defined in the text of the provision as "all of a 
country, part of a country, or all or parts of several countries". We note that this definition closely mirrors the definition of "area" contained in Anne x A(6) and A(7) of the SPS Agreement. The panel 
in India – Agricultural Products, which was the first panel to examine Article 6, found that the 
dictionary definition of the word "ensure" is "[to] make certain the occurrence of [something]"
1635, 
whereas the word "adapt" means "[t]o make … suitable or fit for a purpose, or conformable to specified conditions, standards, or requirements; … to make suitable for a new purpose or to a 
different context or environment".
1636  
7.642.  In our view, the "adaptation" of a measur e entails that the measure in question must be 
tailored or calibrated to the specific SPS characteristics of the area concerned. If, for instance, the 
area from which a product originates presents a lower level of risk than the rest of the territory of 
an exporting Member, an importing Member would be required to impose less stringent conditions on imports of products therefrom. The contrary may also be true. If, indeed, the area from which a 
product originates presents a higher level of risk than the rest of the exporting Member's territory, 
such an SPS characteristic may warrant the imposition of particularly stringent import restrictions targeting that specific area. We also note that the first sentence of Article 6.1 refers to both the area "from which the product originated" and the area "to which the product is destined". This 
indicates that the regulating Member is required to adapt its measure not only to the area of 
origin, but also to the area of destination of a product. If, for instance, a particular area within the territory of an importing Member has a similar SPS status as the area of origin of a product (e.g. 
                                               
1632 European Union's third-pa rty statement, para. 24. 
1633 European Union's third-pa rty statement, para. 25. 
1634 European Union's third-part y statement, paras. 26-28. 
1635 Panel Report, India – Agricultural Products , para. 7.668 (quoting Shorter Oxford English Dictionary , 
6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. I, p. 840). 
1636 Panel Report, India – Agricultural Products , para. 7.668 (quoting The Oxford English Dictionary, OED 
Online, Oxford University Press, accessed 23 April 2014, 
<http://www.oed.com/view/Entry/2110?rskey=4XPehN&result=2&isAdvanced=false#eid>). WT/DS447/R  
 
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  has the same level of prevalence of a given disease), that Member may be required to tailor its 
measure by relaxing the restrictions on imports into that area. 
7.643.  We agree with the panel in India – Agricultural Products that the second sentence of 
Article 6.1 "presupposes that Members undertake an assessment of the SPS characteristics of a 
region" and contains "a list of factors that shall be taken into account by Members in undertaking 
such assessment".1637 The use of the words " inter alia " indicates that this is a non-exhaustive 
list.1638 The three factors listed in the provisions are: (i ) the level of prevalence of specific diseases 
or pests; (ii) the existence of eradication or control programmes; and (iii) appropriate criteria or 
guidelines developed by the relevant international organizations.  
7.644.  We recall our finding from paragraph 7. 408 above, that the requirement to "take into 
account" a particular factor requires consideration of the factor and does not mandate a particular 
result or determination. We note that the obligation to "take into account" the factors enumerated 
in the second sentence is intrinsically connected to the obligations relating to the assessment of risks under Article 5 of the SPS Agreement. In pa rticular, Article 5.2 requires Members conducting 
a risk assessment to "take into account", inter alia , the "prevalence of specific diseases or pests" 
and the "existence of pest- or disease-free areas" when assessing the risks as required by Article 5.1. Therefore, it is reasonable to conc lude that the assessment of the SPS characteristics 
of an area, taking into account the factors listed in the second sentence of Article 6.1 could be 
conducted as part of a Member's risk assessment.
1639 Therefore, we find some merit in Argentina's 
argument that, if a Member did not comply with the second sentence of Article 6.1, this would be relevant for a determination of whether the Member complied with Article 5.1 and had taken into 
account the factors in Article 5.2 as required.
1640  
7.645.  As to the meaning of the term "region" in  the second sentence of Article 6.1, the parties 
agree that, for the purposes of this dispute, the term can be used interchangeably with the term 
"area" in the first sentence.1641 Moreover, the OIE uses the terms "region", "zone" and "area" as 
referring to the same concept.1642 Accordingly, we do not consider it necessary to attribute 
different meanings to the words "area" and "r egion" for the purposes of this dispute. 
7.646.  Based on the foregoing, we consider that the two sentences of Article 6.1 set forth a logical 
progression that those Members adopting and a pplying SPS measures are required to follow. 
According to the second sentence, a Member mu st "assess" the SPS characteristics of a given 
area, taking into account, inter alia , the level of prevalence of specific diseases or pests, the 
existence of eradication or control programmes, and appropriate criteria or guidelines developed 
by the relevant international organizations. Once the SPS characteristics of the area have been assessed, the Member is required to "adapt" it's SPS measure to such characteristics.  
7.8.4.2  The obligations under Article 6.2 
7.647.  The first sentence of Article 6.2 requires that Members "recognize" the "concepts" of two 
specific types of areas: (i) "pest- or disease-free areas"; and (ii) "areas of low pest or disease 
prevalence".
1643 The panel in India – Agricultural Products  concluded that the ordinary meaning of 
the word "recognize" is "[a]cknowledge the existence,  legality, or validity of, [especially] by formal 
approval or sanction; accord notice or attention to; treat as worthy of consideration".1644 In turn, it 
found that the term "concept" means "an abstract idea" or "an idea of a class of objects; a general 
                                               
1637 Panel Report, India – Agricultural Products , para. 7.657.  
1638 Panel Report, India – Agricultural Products , para. 7.657.  
1639 Our statement should not be read to preclude th e possibility of other situations where Article 6.1 
could be applied in the absence of a risk assessment. 
1640 This understanding does not preclude the possibi lity that an importing Member could adapt its 
SPS measures to regional conditions even in the absenc e of a risk assessment, such  as in a situation where a 
measure falls within the scope of Article 5.7 or the Member is basing the measures on the Terrestrial Code. 
1641 See e.g. United States' response to Panel question No. 52 following the first substantive meeting; 
Argentina's response to Panel question No. 52 following the first substantive meeting. 
1642 See OIE's response to Panel question No. 21. 
1643 Panel Report, India – Agricultural Products , para. 7.659. 
1644 Panel Report, India – Agricultural Products , para. 7.668 (quoting Appellate Body Report, US – Tuna 
II (Mexico) , para. 361). WT/DS447/R 
 
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  notion or idea".1645 Read together, those terms indicate th at Members are required to accept the 
authority and validity of the general notions of "p est- or disease-free areas and areas of low pest 
or disease prevalence" and to treat them as worthy of consideration in the adoption and 
application of their SPS measures. The panel in India – Agricultural Products  found that because 
the first sentence of Article 6.2 simply requires Members to acknowledge particular abstract ideas , 
it sets forth "a less exigent obligation" than that of "ensuring" that a measure is "adapted" to the SPS characteristics of an area under Article 6.1.
1646  
7.648.  In turn, the second sentence of Article 6. 2 provides that the "determination" of pest- or 
disease-free areas and areas of low pest or disease prevalence "shall be based on factors such as geography, ecosystems, epidemiological surveillance, and the effectiveness of sanitary or phytosanitary controls". The list of factors that such a determination must be based on is non-
exhaustive, as indicated by the words "such as".
1647 We note that we have explained the meaning 
of the words "based on" in the context of Article 3.1 in paragraphs 7.218-7.220 above. We see no reason not to apply the same meaning to the terms "based on" in the second sentence of 
Article 6.2. Therefore, we conclude that an analysis of the factors listed therein must sufficiently 
warrant or reasonably support the determination of pest- or disease-free areas or areas of low pest or disease prevalence. 
7.8.4.3  The obligations under Article 6.3 
7.649.  We now turn to examining the content of  Article 6.3. As observed by the panel in India – 
Agricultural Products , Article 6.3 sets forth a number of obligations which, unlike those in 
Articles 6.1 and 6.2, are not addressed to WTO Members generally, but rather to exporting  
Members that claim to have areas within their territory that are pest- or disease-free areas or 
areas of low pest or disease prevalence.
1648 I n  p a r t i c u l a r ,  a n  e x p o r t i n g  M e m b e r  m a k i n g  s u c h  a  
claim must provide evidence to the importing Member to objectively demonstrate that its areas 
are, and are likely to remain, pest- or disease-fr ee or areas of low pest or disease prevalence. The 
Member shall also provide reasonable access to the importing Member for inspection, testing and other relevant procedures. As the plain language of  Article 6.3 indicates, the exporting Member is 
not only required to objectively demonstrate that areas within its territory are pest- or disease-
free or of low pest or disease prevalence at a given point in time, but also that such areas are "likely to remain" in the same pest- or disease-condition.  
7.650.  The United States argues that an exporting Member's claim that an area within its territory 
is pest- or disease-free or of low pest or di sease prevalence under Article 6.3 triggers the 
application of Article 5.7. In such a situation, according to the United States, the importing Member is allowed to maintain a provisional measure vis-à-vis the area concerned for the time 
reasonably necessary to evaluate the exporting Member's claim. 
7.651.  The implication of the United States' argument is that, so long as a measure falls within 
the scope of Article 5.7, they would not be incons istent with Article 6.1 and 6.2. In our view, an 
exporting Member's claim under Article 6.3 may, in certain circumstances, give rise to a situation 
whereby the importing Member does not have enough information to conduct a risk assessment taking into account whether the area subject to the claim is pest- or disease-free or of low pest or 
disease prevalence.
1649 This might be the case, for example,  where the exporting Member does not 
provide the scientific information necessary to substantiate its assertion. In such instances, if the 
other three requirements of Article 5.7 are also satisfied, then the measure governing the imports 
                                               
1645 Panel Report, India – Agricultural Products , para. 7.670 (quoting The Oxford Dictionaries Online , 
accessed 10 April 2014, <http://www.oxforddictionaries.com/definition/english/concept?q=concept> and The 
Oxford English Dictionary , OED Online, Oxford University Press, accessed 10 April 2014, 
<http://www.oed.com/view/Entry/38130?rskey=vaS8sT&result=1#eid>). 
1646 Panel Report, India – Agricultural Products , para. 7.670. 
1647 Panel Report, India – Agricultural Products , para. 7.663. 
1648 Panel Report, India – Agricultural Products , para. 7.674. 
1649 We note that Article 5.2 requires Members to take into account "…prevalence of specific diseases or 
pests; existence of pest- or disease-free areas…". Ther efore, the disciplines of Article 6.3 may be seen as 
informing the obligations of Members to maintain thei r measures with sufficient scientific evidence under 
Articles 2.2, 5.1 and 5.2, and thus in some circumstances, under Article 5.7. WT/DS447/R  
 
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  subject to the claim under Article 6.3 woul d fall within the scope of Article 5.7.1650 In that 
situation, a panel may have to determine whether the qualified exemption in Article 5.7 extends to the obligations in Articles 6.1 and 6.2. However, as noted in section 7.5.2.4 above, we have found that the United States' measures do not fall within the scope of Article 5.7 and do not benefit from 
the qualified exemption therein. Therefore, we  do not need to address the United States' 
arguments with respect to the relationship between Articles 6.3 and 5.7.
1651  
7.8.4.4  The relationship between the obliga tions contained in the three paragraphs of 
Article 6 
7.652.  The parties have offered claims, defences and arguments touching on the relationship 
between the obligations contained in Articles 6.1, 6.2, and 6.3. To recall, Argentina considers that Articles 6.1 and 6.2 establish "complementary obligations" with respect to the United States' 
measure at issue
1652, whereas Article 6.3 stands as a potential "affirmative defence" vis-à-vis 
claims put forward under Articles 6.1 and/or 6.2.1653 The United States, for its part, invokes 
Article 6.3 only in connection with Argentina's claim under Article 6.11654, stating that such 
provisions entail "a dynamic process" between the exporting and the importing Member aimed at 
determining the disease status of the area concerned.1655 The United States further contends that 
the claim under Article 6.2 must fail because the measure at issue does, "as such", recognize the 
concepts of disease-free areas and areas of low disease prevalence.1656 
7.653.  Article 6 does not provide an explicit indication of the manner in which its three 
paragraphs interact with one another.1657 In our view, such interactions must be discerned by 
means of an assessment of Article 6 as a whole. 
7.654.  As discussed in paragraph 7.641 above, Article 6.1 sets forth a general obligation for all 
Members to adapt their measures to the SPS characteristics of a given area1658, including but not 
limited to the prevalence of specific diseases or  pests. Meanwhile, Articles 6.2 and 6.3 both focus 
explicitly on "pest- or disease-free areas" and "areas of low pest or disease prevalence". 
Accordingly, we consider that, by its own terms, Article 6.1 has a broader scope of application than 
Articles 6.2 and 6.3, in that it covers not only pest- or disease-free areas or areas of low pest or 
disease prevalence, but indeed all potential SPS characteristics of areas that may warrant the 
"adaptation" of an SPS measure.1659 The reasoning of the panel in India – Agricultural Products  
supports our view that the scope of SPS characteri stics covered by Articles 6.2 and 6.3 is more 
limited than that of Article 6.1. Indeed, that panel found that the words "in particular" at the 
beginning of Article 6.2 indicate that pest- or disease-free areas and areas of low pest or disease 
prevalence constitute a subset of all  types of sanitary characteristics that are covered by 
Article 6.1660  
7.655.  Articles 6.2 and 6.3 set out in more detail the disciplines that must be followed in order to 
enable a Member to comply with the obligation to "adapt" its measure to such SPS characteristics as pest or disease freedom or low pest or disease prevalence. We note that the disciplines in 
                                               
1650 It may also be the case that an exporting Member's claim under Article 6.3 would not implicate 
Article 5.7 in any way.  
1651 For instance, Article 5.2 requires that the importing Member take into account the existence of pest- 
or disease-free areas in assessing the risks under Arti cle 5.1. Therefore, if an exporting Member claims 
disease-freedom for a portion of its territory under Articl e 6.3 and provides all relevant information such that 
there is no insufficiency of the scientific evidence, Ar ticle 5.7 would not be applic able. Rather, the importing 
Member would simply review and update its ri sk assessment pursuant to Article 5.1.  
1652 Argentina's second written submission, para. 238; Argentina's response to Panel question No. 45 
following the second substantive meeting. 
1653 Argentina's response to Panel question No. 49 fo llowing the first substantive meeting. See also 
Argentina's second written submission, para. 242. 
1654 See United States' first written submission, paras. 342-353. 
1655 United States' response to Panel question No. 54 following the first substantive meeting. See also 
United States' opening statement at the first meeting of the Panel, para. 56. 
1656 See United States' first written submission, paras. 354-358. 
1657 Panel Report, India – Agricultural Products , para. 7.665. 
1658 Furthermore, we note that Article 6.1 does not only address the sanitary status of the area from 
which a product originates, but also that of the area to wh ich a product is destined.  
1659 See para. 7.642 above.  
1660 Panel Report, India – Agricultural Products , para. 7.671. WT/DS447/R 
 
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  question contain obligations on both the importin g and the exporting Members. This indicates that 
Article 6 contemplates an interaction in good faith between the two Members, ultimately aimed at the "adaptation" of a measure under Article 6.1.  
7.656.  Specifically, the first sentence of Article 6.2 requires, first, that the importing Member 
"recognize" the concepts of "pest- or disease-free areas" and "areas of low pest or disease 
prevalence". This means that the Member must pr ovide for the possibility that certain areas be 
determined to be pest- or disease- free areas or areas of low pest or disease prevalence, as well 
as specify the requirements that an area has to meet in order to fall within one of those 
categories.
1661 This interpretation is confirmed by the Guidelines to Further the Practical 
Implementation of Article 6  (Article 6 Guidelines)1662 adopted by the SPS Committee in 2008, 
which, at paragraph 4, recommend that Members:  
[P]ublish the basis for recognition of pest- or disease-free areas and areas of low pest 
or disease prevalence and a description of the general process used, including the information generally required to evaluate such requests and a contact point 
responsible for requests for recognition of pest-or disease-free areas or areas of low 
pest or disease prevalence. 
7.657.  As we see it, the above requirement consti tutes a logical prerequisite to the "adaptation" 
of a measure under Article 6.1. Indeed, where th e general regulatory framework of the Member 
concerned does not permit the recognition of the general concepts of pest- or disease-free areas and areas of low pest or disease prevalence, the po ssibility to "adapt" its measures to the pest- or 
disease-freedom or low pest or disease prevalence  of a specific area may be precluded from the 
outset.
1663 In support of this interpretation, we observe that the panel in India – Agricultural 
Products  found that India's failure to set up a regulatory framework recognizing such concepts was 
inconsistent with Article 6.2 and, "consequentially", Article 6.1.1664 We note that Argentina is not 
arguing that the United States does not have an appropriate regulatory framework in place that 
"as such" does recognizes the concept of pest or disease free areas. Rather Argentina is making an 
"as applied" claim with respect to the recognition of Patagonia as a disease free area.1665 
7.658.  We recall the United States' argument that APHIS' general regulatory framework for 
FMD set forth in 9 CFR 92.2 and 9 CFR 94, as such, recognizes the concepts of FMD-free areas and areas of low FMD-prevalence.
1666 We agree. Indeed, 9 CFR 94.1(a) expressly refers to regions that 
APHIS has declared to be free of FMD, and which are therefore allowed to import ruminants, swine 
and fresh (chilled or frozen) meat thereof into the United States.1667 In turn, 9 CFR 94.0 defines 
"region" as "[a]ny defined geographic land area identifiable by geological, political, or surveyed boundaries", this comprising "[a] national entity (country); [p]art of a national entity (zone, 
county, department, municipality, parish, Province, State, etc.)[; p]arts of several national entities 
combined into an area; or [a] group of national  entities (countries) combined into a single 
area".
1668 As this language indicates, APHIS' regulatory framework allows for the consideration of 
the specific FMD situations of regions within or across the territories of WTO Members and for the 
adaptation of the import conditions to such characteristics.  
7.659.  Where the importing Member, such as the United States, has an appropriate regulatory 
framework in place, the exporting Member may submit a claim that specific  areas within its 
territory are pest- or disease-free or of low pest or disease prevalence.1669 When an exporting 
                                               
1661 See Panel Report, India – Agricultural Products , para. 7.698. 
1662 Guidelines to Further the Practical Implementation of Article 6 of the Agreement on the Application 
Of Sanitary and Phytosanitary Measures  adopted by the SPS Committee at its meeting of 2-3 April 2008, 
G/SPS/48 (16 May 2008). 
1663 See Panel Report, India – Agricultural Products , para. 7.680. 
1664 See Panel Report, India – Agricultural Products , para. 7.709. 
1665 Argentina's first written submission, para. 543; Argentina's opening statement at the first meeting 
of the Panel, para. 77. 
1666 United States' response to Panel question No. 54 following the first substantive meeting. See also 
United States' opening statement at the first meeting of the Panel, para. 61. 
1667 9 CFR 94.0, (Exhibit ARG-64). 
1668 9 CFR 94.0, (Exhibit ARG-64). 
1669 In this regard, the panel in India – Agricultural Products  stated that, logically, "the importing 
Member must have already recognized in its SPS measures  the concepts of pest- or disease-free areas or areas 
 WT/DS447/R  
 
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  Member does so, it is required, under Article 6.3 to "provide the necessary evidence" to the 
importing Member to "objectively demonstrate" its claim1670 and to give the authorities of the 
importing Member reasonable access for inspection, testing and other relevant procedures upon request. In other words, Article 6.3 contemplates an exchange of information between the 
exporting and the importing Members, whereby the former provides evidence concerning the pest- 
or disease status of areas located within its territory, and the latter evaluates such information with a view to adapting its measure to the SPS characteristics of the areas concerned.  
7.660.  Article 6.3 does not specify what constitutes the "necessary evidence" the exporting 
Member has to provide. However, as noted above
1671, the second sentence of Article 6.2 provides 
a non-exhaustive list of factors "such as geography, ecosystems, epidemiological surveillance, and the effectiveness of sanitary or phytosanitary controls" that the importing Member shall consider in 
reaching a determination concerning the area that is claimed to be pest- or disease-free or of low 
pest or disease prevalence. Thus, if an exporting Member wishes to "objectively demonstrate" the 
disease free status of an area the information submitted should address the factors listed in 
Article 6.2 in addition to any other information that would assist the importing Member in making 
its determination. The Article 6 Guidelines are also informative regarding the evidence that should be provided by the exporting Member, as well as th e factors that should normally be considered by 
the importing Member in such a situation.
1672  
7.661.  If, as a result of the interactive process outlined above, the importing Member determines 
that the area subject to the exporting Member's claim is, indeed, pest- or disease-free or of low 
pest or disease prevalence, it is required to "ada pt" its measure to the pest- or disease status of 
that area, for instance by imposing less stringent conditions on imports of products therefrom. In 
adapting its measure, the importing Member shall take into account, besides pest- or disease-prevalence, the other factors listed in the second sentence of Article 6.1, namely the existence of 
eradication or control programmes and appropriate criteria or guidelines developed by the relevant 
international organizations, as well as other relevant factors not specifically listed.  
7.662.  Article 6.3 does not expressly establish the consequences of the exporting Member's failure 
to "objectively demonstrate" its claim of pest- or disease-freedom or low pest or disease 
prevalence with respect to a given area. The panel in India – Agricultural Products  rejected the 
idea that such a failure may entail a bar of an exporting Member's claims before a panel under Articles 6.1 and/or 6.2. Indeed, the panel stated that Article 6.3 "is not directly linked to the first 
two paragraphs of Article 6, or to what Members must do generally with respect to adapting 
measures to SPS characteristics of certain areas, or in recognizing specific area concepts".
1673 It 
further observed that "[t]here is no conditional language" linking the obligations under Articles 6.1 
and 6.2 "to Article 6.3, to an extraneous event such as the request of an exporting Member to 
recognize an area, or to any other event or situation".1674 Thus, the panel concluded that 
Articles 6.1 and 6.2 "create free-standing obligations rather than obligations contingent upon a 
request from a Member claiming that areas within its territory are pest- or disease-free, pursuant 
to Article 6.3".1675 
7.663.  We agree that the obligations in 6.1 and 6.2 are not necessarily contingent on the actions 
of the exporting Member under Article 6.3. In partic ular, we note that Article 6.1 refers to adapting 
measures not only to the SPS characteristics of the area from which the product originates, but 
also the area to which the product is destined. In looking at the SPS characteristics of the area to which the product is destined, there is no need for a claim from the exporting Member or 
information from that Member. Similarly, if the Member can adapt the measure without a specific 
claim because it is applying the disease status designations of an international organization such as the OIE, then there would be no need for a claim under Article 6.3.  
                                                                                                                                               
of low pest or disease prevalence, as required under Ar ticle 6.2, in order for it to receive and consider a 
request for recognition under Article 6.3." (Panel Report,  India – Agricultural Products , para. 7.677) 
1670 Panel Report, India – Agricultural Products , para. 7.676. 
1671 See para. 7.648 above. 
1672 See Article 6 Guidelines, paras. 8-10. 
1673 Panel Report, India – Agricultural Products , para. 7.674. 
1674 Panel Report, India – Agricultural Products , para. 7.675. 
1675 Panel Report, India – Agricultural Products , para. 7.679. In that dispute, the panel rejected India's 
argument that the importing Member does not have to comply with Article 6.2 until it received a claim of pest- or disease-freedom or low pest or disease prevalence  under Article 6.3. (Ibid. paras. 7.698-7.707)  WT/DS447/R 
 
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  7.664.  However, we take the view that in some circumstances the ability of the importing Member 
to adapt a measure under Article 6.1 is dependent on the exporting Member's compliance with Article 6.3. Indeed, in our opinion, Article 6.3 recognizes that, in certain cases, exporting Members are well if not best placed to gather information about the SPS conditions of geographical areas 
located within their territories, and that, without their cooperation, the "objective demonstration" 
of the pest- or disease status of the areas concerned to the importing Member may prove impossible. Furthermore, it would not be logical to expect an importing Member to necessarily 
adapt its measures to the disease statuses of any and all areas, regions or parts of countries the 
world over absent solicitation or provision of relevant information on the part of exporting Members wishing to obtain market access. 
7.665.  The panel in India – Agricultural  products acknowledged this eventuality where it stated 
that, "under certain circumstances, a link may be  made" between the information required for the 
assessment of SPS characteristics of an area en visaged by Article 6.1 and the obligation of an 
exporting Member to provide "the necessary eviden ce" under Article 6.3 that an area within its 
territory is pest- or disease-free or is an area of low pest or disease prevalence.
1676 We note that, 
in this dispute, Argentina did file a request for the recognition of Patagonia as FMD-free within the 
meaning of 9 CFR 94.1(a).1677 I n  o t h e r  w o r d s ,  i t  c l a i m e d  t h a t  a n  a r e a  w i t h i n  i t s  t e r r i t o r y  i s  a  
disease-free area. In our view, this constitutes one of the "circumstances" linking the 
United States' obligations under Articles 6.1 and 6.2 and Argentina's obligations under Article 6.3. Therefore, we consider that Argentina's claim that the United States' prohibition on imports of FMD-susceptible animals, meat and animal products from Patagonia is inconsistent with 
Articles 6.1 and 6.2 is properly addressed in the light of our examination whether Argentina 
provided the necessary evidence to "objectively demonstrate" that Patagonia is, and is likely to remain, free of FMD pursuant to Article 6.3. Our analysis must also include an assessment of 
whether Argentina granted reasonable access, upon request, to APHIS for inspection, testing and 
other relevant procedures. 
7.666.  Given that Argentina did make the claim and its compliance with the obligation in 
Article 6.3 is linked to the United States' ability to adapt the measure pursuant to Article 6.1, we 
do not consider it necessary to settle the issue of whether the United States could have or should have invoked Article 6.3 as an affirmative defence against Argentina's claims under Articles 6.1 and 6.2. 
7.667.  In sum we are of the view that Article 6.1 sets forth the overarching obligation and the 
ability of a Member to implement that obligation may be dependent on its own compliance with Article 6.2 and the exporting Member's compliance wi th Article 6.3. Given the facts of the present 
dispute where the United States does have a regulatory system that recognizes the concept of 
disease free areas and Argentina has submitted a claim for disease freedom for Patagonia, the two relevant preconditions for the application of Article 6.1 exist and it is appropriate to begin our 
analysis with Argentina's claims under Article 6.1.  
7.8.4.5  Whether the United States reco gnized the concept of FMD-free areas and 
adapted its measure to the SPS characteristics of Patagonia 
7.668.  We now turn to Argentina's claims that the United States acted inconsistently with 
Article 6.1 by failing to adapt its measure to the FMD-free SPS characteristics of the Patagonia 
region. In our assessment, we find it useful to refer to the steps of the interactive process described in paragraphs 7.654-7.665 above.  
7.669.  At the time of the establishment of the Panel, APHIS had not yet recognized Patagonia as 
separate from the rest of the Argentine territo ry. Indeed, the 2001 Regulations, adopted in the 
aftermath of the FMD outbreaks in Northern Argentina during the period July 2000-March 2001, 
prohibited imports of all FMD-susceptible animals, meat and animal products from the entire 
Argentine territory, comprising of both Northern Argentina and Patagonia.
1678 The United States 
                                               
1676 Panel Report, India – Agricultural Products , para. 7.676. 
1677 See Information provided by SENASA for the Reco gnition of Argentina's Patagonia as a Region 
Comprised in Article 92.2, Title 9, Code Of Federal Regulations in Re gard to Foot and Mouth Disease – 
FMD (July 2003), (Exhibit ARG-50). 
1678 2001 Interim Rule on Argentina, (Exhibit ARG-29 ); 2001 Final Rule on Argentina, (Exhibit ARG-30). WT/DS447/R  
 
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  has maintained its prohibition for all the above-mentioned products, without distinguishing 
between products originating in Northern Argentina and products originating in Patagonia, from 2001 up to and including the date of establishment of the Panel.
1679  
7.670.  In order to determine whether the United States' omission to recognize Patagonia as 
separate from the rest of the Argentina territory amounts to a violation of its obligations under 
Articles 6.1 to adapt its measures to the SPS characteristics of the region, we must assess whether such an omission was justified by Argentina's failure to objectively demonstrate that, at the time 
of the Panel's establishment, Patagonia was and was likely to remain FMD-free.  
7.671.  We note that the primary argument of th e United States for why they have not adapted 
their measure is that APHIS has not yet determined that Patagonia is indeed disease-free. However , in our analysis under Article 8 and Annex C(1)(a) above
1680, we found that, at the time 
of the establishment of the Panel, APHIS itself was satisfied that it had sufficient information 
concerning the FMD situation in Patagonia to proceed with the finalization of its review of Argentina's request and the issuance of a determination thereon. This was evidenced, inter alia , by 
the fact that, after the 2009 site visit, APHIS did not request any additional information from 
SENASA concerning the FMD situation in Patagonia; that on 27 April 2009 APHIS sent a letter to SENASA stating that no additional information was currently required to proceed with APHIS' 
rulemaking
1681; and that in June and October 2011 the United States' representative to the 
SPS Committee stated that "in light of the inform ation Argentina provided in 2009, which was used 
to update the 2005 risk analysis , [APHIS] was able to conclude that the import of ruminants and 
ruminant products from th[at] region presented a negligible risk of FMD".1682 Moreover, in our 
analysis under Article 5.6 above, we concluded that , at the time of the establishment of the Panel, 
the information available to APHIS showed that Patagonia was free of FMD and that allowing imports of FMD-susceptible animals, meat and anim al products from that region subject to the 
general protocols set forth in 9 CFR 94.11 would achieve the United States' ALOP.
1683 Therefore, in 
our view, Argentina satisfied its obligation to "objectively demonstrate" that Patagonia is and is likely to remain FMD-free. 
7.672.  As to the issue whether, during the period leading up to the Panel's establishment, 
Argentina granted reasonable access, upon request, to APHIS for inspection, testing and other relevant procedures, we have already noted that  Argentina agreed to APHIS' site visits to 
Patagonia in December 2003 and February 2009.
1684 We also disagreed with the United States' 
argument that, until the November 2013 site visit, APHIS' review of Argentina's request for 
Patagonia was reasonably delayed because APHIS needed to ensure that the information in its possession as a result of the 2006 site visit to  Northern Argentina and the 2009 site visit to 
Patagonia was "current".
1685 
7.673.  In addition to our finding under Article 8 and Annex C(1)(a) that the United States had not 
undertaken and completed its review without undue delay, we also found that the United States 
had not reviewed the measure within a reasonab le period of time within the meaning of 
Article 5.7. The Panel is of the view that, in light of our prior findings, the fact that the United States had not yet completed its review of Patagonia, cannot serve to excuse it from its obligations under Article 6.1. We also recall our finding under Article 5.6 that the United States' 
measures are more trade-restrictive than required to achieve its ALOP because Patagonia is a 
region that has been FMD-free since 1994 and has the necessary veterinary capacity and infrastructure to prevent and control FMD in its own territory and the capacity to prevent 
incursions of the disease from regions of higher FMD-risk. 
                                               
1679 In particular, the United States published the 2014 Notice of Determination on Patagonia, 
(Exhibit USA-167). The Notice indicated that the me asure would take effect 60 days after publication. 
Therefore, as of 28 October 2014, imports of relevant products from Patagonia are authorized pursuant to the mitigating protocols in 9 CFR 94.11. 
1680 See paras. 7.169-7.170 above. 
1681 APHIS' letter of 27 April 2009, (Exhibit ARG-79). 
1682 G/SPS/R/63, (Exhibit ARG-22), paras. 17-18. See also G/SPS/R/64, (Exhibit ARG-48), paras. 96-97. 
1683 See section 7.6.7.4.2 above. 
1684 See paras. 7.150 and 7.155 above. 
1685 See para. 7.170 above. WT/DS447/R 
 
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  7.674.  Based on the foregoing, we consider that, at the time of the Panel's establishment, 
Argentina had met its burden of providing the evidence necessary to "objectively demonstrate" that Patagonia as a whole (comprising of both Patagonia South and Patagonia North B) was, and was likely to remain, FMD-free. Therefore, we fi nd that the United States' failure to recognize 
Patagonia as FMD-free is a failure to adapt its general prohibition on imports of FMD-susceptible 
animals and animal products from Argentina to the specific SPS characteristics of the Patagonia region and is thus inconsistent with Article 6.1 of the SPS Agreement.  
7.675.  We note that Argentina also makes an "as applied" claim under Article 6.2 because it 
argues the United States has not specifically applied its general regulatory framework for recognizing disease free areas, i.e. 9 CFR 92.2, to Patagonia. We recall our discussion in paragraph 7.658 above that APHIS' regulatory syst em generally recognizes the concept of disease 
free areas. In an "as applied" situation like that in  the present dispute, it is the Panel's view that 
any measures the United States takes to bring its measures into conformity with Article 6.1 would have the additional result of remedying any potential inconsistency with Article 6.2 if one were to 
exist. We do not see that a finding on Argentina's "as applied" claim under Article 6.2 would aid in 
providing a positive resolution to this dispute. Therefore, we exercise judicial economy on this 
claim. 
7.9  Special and differential treatment  
7.9.1  Relevant legal provisions 7.676.  Article 10.1 of the SPS Agreement sets forth that: 
In the preparation and application of sanitary or phytosanitary measures, Members 
shall take account of the special needs of developing country Members, and in 
particular of the least-developed country Members. 
7.9.2  Main arguments of the parties 
7.9.2.1  Argentina 
7.677.  Argentina argues that the purpose of the obligation in Article 10.1 is to maintain trade 
flows from developing country Members to the maximum extent possible. Argentina looks to 
Article 10.2 as context for the obligation in Article 10.1. In particular, Argentina argues that 
Article 10.2
1686 lends support to the view that the broa d and unqualified obligation in Article 10.1 
t o  t a k e  a c c o u n t  o f  t h e  s p e c i a l  n e e d s  o f  d e v e l o p i n g  c o u n t r y  M e m b e r s  s h o u l d  b e  w i t h  a  v i e w  t o  maintaining trade flows from developing country Members.
1687 Argentina claims that the 
United States has taken every effort to stop the flow of trade from Argentina, not maintain it. 
Argentina contrasts what it calls the denial of access for Argentina to the relevant administrative process, with the high level of access and speed accorded to developed country Members such as 
the United Kingdom and Japan.
1688 According to Argentina, the United States acted with alacrity in 
re-opening access to the United States' market for beef from the United Kingdom and Japan following FMD outbreaks in these countries and that these, among other developed countries, have 
returned to the permanent list of countries whic h the United States considers FMD-free. According 
to Argentina, they were given prompt risk asse ssments and, shortly thereafter, final rulemakings 
which put them back on the permissive list referenced in 9 CFR 94.1(a)(1).
1689  
7.678.  It is Argentina's view that developing country Members should be given priority and 
support for risk assessments and rulemakings, not pushed aside for years while developed country 
Members have their interests taken care of promptly. Consequently, Argentina argues that the 
                                               
1686 Article 10.2 of the SPS Agreement provides: 
Where the appropriate level of sanitary or phytos anitary protection allows scope for the phased 
introduction of new sanitary or phytosanitar y measures, longer time -frames for compliance 
should be accorded on products of interest to  developing country Members so as to maintain 
opportunities for their exports. 
1687 Argentina's first written submission, paras. 354, 355,567, and 568. 
1688 Argentina's first written submission, para. 357. 
1689 Argentina's first written submission, para. 356. WT/DS447/R  
 
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  United States has failed to accord Argentina special and differential treatment in the preparation 
and application of its SPS measures as requ ired by Article 10.1 of the SPS Agreement.1690  
7.679.  Furthermore, Argentina notes that the United States itself identified a "special need" – 
namely a lack of veterinary capacity in SENASA to control FMD. Argentina argues that, pursuant to 
Article 10.1, the United States was under an obligation to help remedy any deficiencies it found in 
Argentina's ability to satisfy United States' sanitary standards.1691 Argentina also argues, in this 
respect, that there is no qualification of the obligation in Article 10.1 based on which party 
identifies the special needs.1692  
7.9.2.2  United States 7.680.  The United States responds that, to the extent possible, it takes into account developing 
country Members' needs in meeting its obligations under the SPS Agreement. The United States 
notes that many countries at or even below Argentina's income level have been designated as 
FMD-free by APHIS and obtained import authorization.
1693 
7.681.  The United States recalls that "the obligation laid down in Article 10.1 is for the importing 
Member to 'take account' of developing country  Members' needs. The dictionary defines the 
expression 'take account of' as 'consider along with other factors before reaching a decision'". Consistent with this, the United States argues that Article 10.1 does not prescribe a specific result 
to be achieved."
1694  
7.682.  The United States also argues that Argentina has not adduced any arguments explaining 
the special needs related to its developing country status. In response to a question from the Panel, the United States clarifies that in its view:  
[T]he developing country Member claiming a breach of that obligation should show 
how it communicated its "special needs" to the other Member. Otherwise, the Member that is the subject of the claim would have no opportunity to "take account" of the 
developing country Member's "special need".
1695  
7.683.  At the second hearing of the Panel with the parties, the United States disputed that 
Article 10.1 obliges the importing Member to provide technical assistance or remedy the 
deficiencies in the developing country's ability to satisfy sanitary standards, arguing that there was 
no support in the text for Argentina's position. In any event the United States submits that it has provided support to Argentina in combatting FMD through technical assistance and other aid 
programmes.
1696  
7.9.3  Main arguments of the third parties 
7.9.3.1  China 7.684.  According to China, the burden of pr oof placed on developing country Members in 
Article 10.1 claims should be treated with special care. China argues that it is difficult to prove that 
a developed country Member has simply ignored its obligation under Article 10.1. It submits that such requirement would amount to asking a deve loping country Member to prove something that 
                                               
1690 Argentina's first written submission, para. 359. 
1691 Argentina's second written submission, para. 20. 
1692 Argentina's response to Panel question No. 52 after the second substantive meeting. 
1693 United States' first written submission, paras. 359, 361. The United States uses World Bank data to 
argue that based on GDP or GNI, the fo llowing countries that have the right to export to the United States are 
at or below Argentina's development level (i) Belize; (ii) Dominican Republic; (iii) El Salvador; (iv) Guatemala; (v) Haiti; (vi) Honduras; (vii) Jamaica; (viii) Namibia; and (ix) Nicaragua. 
1694 United States' first written submission, para. 360 (citing Panel Report, EC – Approval and Marketing 
of Biotech Products , para. 7.1620). 
1695 United States' response to Panel question No. 52 after the second substantive meeting. 
1696 United States' first written submission, para. 365. The United States refers to providing training to 
Argentinian veterinary services and ec onomic assistance in building veteri nary infrastructure.  We note that 
some of this assistance took place in the 1960s. WT/DS447/R 
 
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  does not exist and that requiring the developing country Members to make efforts to collect such 
non-existing evidence is logically unsustainable.1697  
7.685.  China submits that whenever an importing Member "takes account of" the special needs of 
a developing Member this should be reflected in relevant documentation.1698 In this context China 
refers to the Appellate Body finding in China – GOES , that "[t]he notion of the word "consider", 
when cast as an obligation upon a decision maker, is to oblige it to take something into account in reaching its decision". Although acknowledging th at the Appellate Body's finding was made in the 
context of Article 3.2 of the Anti-Dumping Agreem ent, China submits that it sheds light on the 
interpretation of take account of under Article 10. 1 of the SPS Agreement. This is especially so 
since the term "take account of" has been equated with consider by the Appellate Body.
1699 
7.9.3.2  European Union 
7.686.  The European Union expresses doubt whether the "vague" and non-specific language of 
Article 10.1 can serve as the basis for a claim in dispute settlement as it does not spell out any specific obligation on Members.
1700 
7.687.  The European Union argues that in any event Argentina's assertion that the United States 
failed to take account of the developing countries' special needs is contradicted by Argentina's own assertion that the United States' "application" of the SPS measure was more favourable to 
Uruguay and the Santa Catarina region of Brazil, which are both developing countries. According to 
the European Union, this shows that the United States does take account of the developing countries' special needs. Thus, there is "no breach of whatever obligation is embodied in Article 10.1 of the SPS Agreement."
1701 
7.9.4  Analysis by the Panel 
7.688.  The issue before the Panel is whether Argentina has demonstrated that the United States 
failed to take into account the special needs of Argentina as a developing country when preparing 
and applying its SPS measures as required by Article 10.1. To make such a determination, the 
Panel will need to first clarify the nature of the obligation in the provision and then apply that interpretation to the facts of the case. Before movi ng to the specific requirements in Article 10.1, 
we first address an important preliminary issue, namely whether Article 10.1 is a positive 
obligation that can be subject to dispute settlement. Second, we address the burden of proof when making an Article 10.1 claim. 
7.9.4.1  Whether Article 10.1 is a positive obligation 
7.689.  The European Union argued in its third-party submission that Article 10.1 is too vague to 
be the subject of dispute settlement. Neither Arge ntina nor the United States indicated that they 
shared this view. That being said, the Panel is nonetheless under an independent obligation 
pursuant to Article 11 of the DSU to make an objective assessment of the matter, including 
whether the provision can serve as the basis for a claim of violation. We do not agree with the 
European Union that the allegedly general and vague language of the provision does not set forth 
a specific obligation for positive action, thus removing it from the ambit of WTO dispute 
settlement.  
7.690.  First, many other provisions of the SPS Agreement – including Articles 5.1, 5.2 and 6.1 
which are also raised in this dispute – and of the other covered agreements contain requirements 
for Members to "take into account" certain techniques, factors, international standards, and so on, 
which have been interpreted by panels and the Appellate Body.
1702 Therefore, the use of the 
                                               
1697 China's third-party submission, para. 59. 
1698 China's third-party submission, para. 60. 
1699 China's third-party submission, para. 60. 
1700 European Union's third-pa rty submission, para. 74. 
1701 European Union's third-pa rty submission, para. 79. 
1702 See Panel Report, Japan – Apples , para. 8.230; Appellate Body Report, Australia – Apples , 
para. 207. See also Appellate Body Report, China – GOES , para. 130 and fn 216 ther eto (equating the term 
"consider" in Article 3.2 of the Anti-Dumping Agreement to "take into account").  WT/DS447/R  
 
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  phrase "shall take account of" in a provision does not make it so vague that it cannot constitute a 
positive obligation.1703 With respect to the term "special needs", the panel in EC – Approval and 
Marketing of Biotech Products  stated that Article 10.1 was "equivalent" to Article 12.3 of the 
TBT Agreement.1704 The panel in US – Clove Cigarettes,  although noting the vagueness of the 
expression "special development, financial and trade needs", nevertheless examined the specific 
socio-economic context of Indonesia and made a finding under Article 12.3 of the 
TBT Agreement.1705 We are aware that the panel in Brazil – Aircraft, in examining a claim under 
Article 27.4 of the SCM Agreement, which refers to a developing country Member's "development 
needs", found that an inquiry into what those needs are is "of a peculiarly economic and political nature, and notably ill-suited to review by a panel whose function is fundamentally legal."
1706 
However, we concur with the reasoning of the panels in EC – Approval and Marketing of Biotech 
Products and US – Clove Cigarettes that, such provisions impose positive obligations and must be 
subject to dispute settlement.1707 To do otherwise might render unenforceable many special and 
differential treatment provisions throughout the covered agreements and upset the balance of 
rights and obligations between developed and developing country Members.1708  
7.691.  Therefore, in our view Article 10.1 does impose a positive obligation that is subject to 
dispute settlement and we will turn to Argentina's claim that the United States did not act in 
conformity with that obligation. 
7.9.4.2  Shall take account of specia l needs of developing country Members 
7.9.4.2.1  Special needs of developing country Members 7.692.  With regard to the phrase "special needs of developing country Members", we find that the 
provision is written broadly so as to encompas s both the needs of developing country Members 
generally, and the needs of a particular developing country Member. We find support for this interpretation in the context provided by Article 10.2, which links special and differential treatment 
to particular ALOPs and "products of interest". In light of the wide varieties of products that 
developing countries produce and the equally wide variety of ALOPs that could be applied to those products, a reading that limited the scope of Article 10.1 to some generic need experienced by all 
developing countries would deprive the provision of  meaning. That being said, we note that the 
definition of an SPS measure is broad and also encompasses measures that are applicable to all products – such as sampling methods, testing, inspection, certification and approval procedures. 
Reading Article 10.1 as only applying to the needs of individual developing countries would remove 
the obligation for those SPS measures of general application and we see no basis for doing so.  
7.693.  The dictionary defines "special" as "disting uished from others of the kind by a particular 
quality or feature; distinctive in some way".
1709 The dictionary defines "need" as "a condition of 
lacking or requiring some special thing".1710 We recall that the panel in EC – Approval and 
                                               
1703 We note that in our determination under Article 5.4 we found that a provision which stated that a 
Member "should" take account of the objective to mini mize negative trade effects did not impose a positive 
obligation. That determination was made by evaluating all the phrases used in the provision as well as its 
overall context. Article 5.4 is distinguished from the Articl e 10.1 in that it says "should" rather than "shall" and 
is even more attenuated by requiring the taking into account of an "objective". 
1704 Panel Report, EC – Approval and Marketing of Biotech Products , fn 1330 to para. 7.1615. 
1705 Panel Report, US – Clove Cigarettes , para. 7.627.  
1706 Panel Report, Brazil – Aircraft , para. 7.89. 
1707 Additionally, we note that in the arbitrat ion over the reasonable period of time in Indonesia – Autos  
the arbitrator considered whether Indonesia's status as a "developing country … in a dire economic and 
financial situation" justified the awarding of an extended  period of time for compliance with the DSB's rulings 
and recommendations. The arbitrator observed that, under Article 21.2 of the DSU, "[p]articular attention should be paid to matters affecting the interests of developing country Members with respect to measures 
which have been subject to dispute settlement", and cons idered it "appropriate to give full weight to matters 
affecting the interests of Indonesia", thereby extending the reasonable period of time by an extra six months. See Award of the Arbitrator, Indonesia – Autos (Article 21.3(c)) , para. 24. 
1708 We are mindful of the requirement of Article 3.2 of the DSU that a panel should not add to nor 
detract from the obligations in the covered agreements. 
1709 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 1903). 
1710 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 2943). WT/DS447/R 
 
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  Marketing of Biotech Products  equated the term "special needs" in 10.1 with the term "special 
development, financial and trade needs of th e developing country" in Article 12.3 of the 
TBT Agreement. 1711  
7.9.4.2.2  Shall take account of 
7.694.  With regard to the requirement to take account of special needs the use of the word shall 
indicates a mandatory obligation.1712 The United States does not dispute the mandatory nature of 
the obligation. Furthermore, both parties agree that take account of requires the importing 
Member to consider the special needs of the developing country Member.1713 Prior panels and the 
Appellate Body have interpreted the phrase "take into account"1714 to mean "take into 
consideration, notice".1715 More specifically, the panel in US – COOL also clarified that an obligation 
to take something into account does not require any particular result of that consideration.1716 In 
the case of Article 10.1, it is the special needs of  developing country Members, and in particular of 
the least developed country Members that mu st be taken into account or considered. 
7.9.4.3  Burden of proof 
7.695.  In applying Article 10.1 to the facts of this case, it is necessary to first address the 
arguments of the Parties regarding burden of proof. The United States urges the Panel to adopt the approach taken by the panel in EC – Approval and Marketing of Biotech Products , which was 
made in the specific context of Article 10.1 of the SPS Agreement. That panel held that Article 10.1 
does not specifically require the importing Member to document how it has complied with Article 10.1 and the absence of references in the challenged measures to how developing country Members' needs were taken into account is not su fficient for the purposes of establishing a claim 
under Article 10.1.
1717  
7.696.  Argentina, for its part, argues that the Appellate Body's ruling in China – GOES , stands for 
the opposite principle to that set forth by the panel in EC – Approval and Marketing of Biotech 
Products. In particular, Argentina notes that the Appellate Body interpreted the term "consider" as 
being synonymous with "taking account of" and found that to comply with an obligation to consider a particular factor in an injury determination, the importing Member must document how it did so. 
Argentina asks the Panel to interpret the language in Article 10.1 in the same manner and also 
conclude that the absence of a risk assessment or a rulemaking notice from the United States means that it did not comply with the obligation in Article 10.1.
1718  
7.697.  We note that the Appellate Body's interpretation of "consider" in China – GOES, was made 
in the context of a dispute under the Anti-Dumpi ng and SCM Agreements. In particular, we note 
that the Anti-Dumping and SCM Agreements have  very specific obligations with respect to 
publication and documentation of decisions. Although the SPS Agreement does have some 
provisions that encourage transparency and communication to the interested Members and 
exporters, they are not as detailed as those in the Anti-Dumping and SCM Agreements. Therefore, 
we do not find it appropriate to simply transplant wholesale the Appellate Body's interpretation in 
China – GOES concerning a provision about how to determine injury into an SPS provision 
                                               
1711 Panel Report, EC – Approval and Marketing of Biotech Products , fn 1330 to para. 7.1615. 
1712 We note that a non-binding Secretariat docu ment entitled "Implementation of Special and 
Differential Treatment Provisions in WTO Agreements and Decisions, Mandatory and Non-Mandatory Special and Differential Treatment Provisions" classifies Article 10.1 as a mandatory provision, WT/COMTD/W/77/Rev.1/Add.1/Corr.1. The Appellate Body has commented on the mandatory nature of obligations containing the word "shall". (See e.g. Appellate Body Reports, EC – Fasteners (China) , para. 366; 
and EC – Tariff Preferences , para. 246) 
1713 United States' first written submission, paras. 344 and 360; see also United States' response to 
Panel question No. 34 following the first substantive meeting; and Argentina's response to Panel question No. 34 following the first substantive meeting. 
1714 Or similar phrases such as "taking into account" and "taking account of".  
1715 Appellate Body Report, Korea – Various Measures on Beef , para. 111; see also Panel Report, US – 
COOL , para. 7.776. 
1716 Panel Report, US – COOL , para. 7.776. 
1717 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1623. 
1718 Argentina's response to Panel question No . 34 following the first substantive meeting. WT/DS447/R  
 
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  concerning special and differential treatment that requires the importing Member "to take account 
of".  
7.698.  In the context of Article 10.1, we agree with the panel in EC – Approval and Marketing of 
Biotech Products  and find that the absence of documentation in the form of a risk assessment or 
final measure is not sufficient in itself for Argentina to establish a prima facie  case under 
Article 10.1. However, we are cognisant that in considering what is required to show an inconsistency with Article 10.1 we cannot create a potentially insurmountable burden on the 
complainant.
1719 This is all the more so in the context of the obligation in Article 10.1 which is 
aimed at protecting the interests of developing coun tries. Therefore, we want to clarify that we do 
not understand the panel's reasoning in EC – Approval and Marketing of Biotech Products  to stand 
for the proposition that there is no way to satisf y the burden of proof under Article 10.1. While the 
absence of documentation alone  will not suffice to establish a violation, the absence of such 
documentation is relevant evidence and will be particularly probative in a situation where a special need has been expressly identified and brought to the importing Member's attention. 
7.699.  In particular, it is our view that the burden of proof in Article 10.1 begins with a 
determination of whether a specific special need of a developing country Member has been identified.
1720 In that respect, we note that the United  States is of the view that the exporting 
Member must identify its special needs and that Argentina did not do so. Argentina argues that 
there is no qualification of the obligation in Article 10.1 based on which party identifies the special needs.
1721 According to Argentina it depends on the facts of the specific measure and the specific 
case. We agree with Argentina. In the Panel's view there are multiple ways in which a special need 
could be brought to the attention of the importing Member. It could be that the developing country 
knows of a need that it needs to remedy and should make that known to the importing country, this would make sense from a practical viewpoint as the developing country Member would be 
identifying its own special needs.
1722 Conversely, the importing country could identify a special 
need, for example while conducting its risk assessment, and convey that to the developing country Member.
1723 The Panel underlines however, that while we consider that an importing country may 
identify a special need, we do not consider that the burden is on the importing Member to 
necessarily  identify any such special need.  
                                               
1719 China's third-party submission, paras. 59-60. 
1720 We recall the reasoning of the panel in EC – Approval and Marketing of Biotech Products  that a 
developing country does no t have to specifically ask that its special needs be taken into account. The 
requirement to take into account the special needs of developing country Members is inherent in the obligation in Article 10.1 without any action required on the part of the developing country Me mber. However, as will be 
discussed further below, the importin g Member does need to be aware th at a special need exists. See Panel 
Report, EC – Approval and Marketing of Biotech Products , para. 7.1625. 
1721 Argentina's response to Panel question No. 52 after the second substantive meeting. 
1722 Such an understanding of the process would be  consistent with "The Procedure to Enhance 
Transparency of Special and Differential Treatment in Favour of Developing Country Members" developed by the SPS Committee. That Procedure provides: 
Step 5: If an exporting Member id entifies significant difficulties with the proposed measure, that 
Member may, in its comments, request an oppo rtunity to discuss and resolve the potential 
difficulty with the notifying Member ….  Step 6: If, following the entry into force of a new regulation (including an emergency measure), 
an exporting Member identifies significant difficulties which its exports face in complying with the new regulation, it may request an opportunity to discuss its difficulties with the importing 
Member to attempt to resolve the issue of concer n, especially where no time, or an insufficient 
period of time, has been provided for comments. In the case of such a request from an exporting 
developing country Member, the importing Member would, in any discussions, examine whether 
and how the identified problem could best be addr essed to take into account the special needs of 
the interested exporting develo ping country Member, so as to enable it to satisfy the 
requirements of the measure.  
1723 We note that with respect to all Members, Annex C(1)(b) provides that the importing Member: 
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 ne cessary; even when the application has deficiencies, the competent body 
proceeds as far as practicable with the procedure if th e applicant so requests; and that upon request, the 
applicant is informed of the stage of the procedure, with any delay being explained. WT/DS447/R 
 
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  7.700.  If a developing country Member can demonstrate that its special needs were expressly 
identified to or by the importing Member and can show a lack of documentation of the 
consideration that is likely enough to shift the burden on to the importing Member to show how it took account of those special needs. Conversely, if the importing Member was not made aware of 
the special needs of the developing country Member, we consider that it will be more difficult for 
the developing country Member to make its case. This is consistent with the reasoning of the panel in EC – Approval and Marketing of Biotech Products , that the European Communities could not 
have known that the products being reviewed we re those of a developing country, because the 
European Communities had not been made aware that any of the applicants seeking to place 
biotech products on the European market was an Argentine company or individual.
1724 
7.9.4.4  Whether the United States took  account of Argentina's special needs 
7.701.  Turning to Argentina's claims in this case, Argentina has argued that the United States did 
not take account of two special needs: first, its special need is for it to have full and speedy or priority access to the approval process at a level above that given to developed countries; and 
second, the special need it argues the United St ates identified namely SENASA's alleged lack of 
sufficient veterinary capacity to control FMD. We will consider each in turn. 
7.9.4.4.1  Priority access 
7.702.  Argentina submits that the special need it id entified was to have full and speedy or priority 
access to the approval process at a level above that given to developed countries. We recognize that, in a particular case, it may be that a product is so central to the economy of a developing country that its special need could be precisel y that the approval procedures need priority 
consideration. However, Argentina has expressed this concept of priority access in broad and 
general terms without making specific reference to pr oducts of particular interest to the developing 
country or other considerations.  
7.703.  The panel in EC – Approval and Marketing of Biotech Products  found that "Article 10.1 does 
not provide that the importing Member must invariab ly accord special and differential treatment in 
a case where a measure has led, or may lead, to a decrease, or a slower increase, in developing 
country exports".
1725 Indeed, that panel went on to note that "[t]here is nothing in Article 10.1 to 
suggest that in weighing and balancing the various interests at stake, the [importing Member] must necessarily give priority to the needs of Argentina as a developing country."
1726  
7.704.  We agree with this interpretation and believe it supports a conclusion that failure to give 
priority access as described by Argentina in this case does not constitute a violation of Article 10.1. 
We recall that the term "take account of" does not mandate any particular conclusion. Accepting Argentina's interpretation would mean that no weighing and balancing of various interests is 
involved and implies an automatic and mandatory response by the importing Member to put the 
developing country at the front of the line for risk assessments. We see nothing in the text of Article 10.1 that requires importing Members to always do risk assessments for products from 
developing countries first or faster.  
7.705.  Therefore, we find that with respect to the special need of priority access, Argentina has 
not established a violation of Article 10.1. 
7.9.4.4.2  Sufficient veterinary capacity 
7.706.  We now turn to consider Argentina's claim that the United States should have taken into 
account SENASA's alleged "insufficient veterinary capa city". As an initial point, the Panel notes that 
an adequate and efficient veterinary service is undoubtedly vital in enabling any country to 
maintain effective surveillance in its territory both  as regards vaccination, where applicable, and so 
as to enable the country to respond quickly to  any foot-and-mouth outbreak. Thus, a lack of 
veterinary capacity in a developing country may very well need to be addressed before it can have 
market access for products that are important to its development needs. Therefore, consideration 
                                               
1724 Panel Report,  EC – Approval and Marketing of Biotech Products , fn 1334. 
1725 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1620. 
1726 Panel Report, EC – Approval and Marketing of Biotech Products , para. 7.1621.  WT/DS447/R  
 
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  of this lack of capacity can be a special need th at a Member preparing or applying an SPS measure 
should take account of within the meaning of Article 10.1.1727  
7.707.  In light of the foregoing, we therefore conc lude that, in principle, the lack of veterinary 
capacity could be a special need within the meaning of Article 10.1. 
7.708.  However, in the context of discussing th e alleged special need of veterinary capacity, 
Argentina argues that pursuant to Article 10.1 if  there was any deficiency in SENASA's capacity, 
then the United States had an "obligation to provide the necessary assistance to correct and 
overcome such failures of capacity".1728 We see several problems with Argentina's position.  
7.709.  First and foremost, we believe Argentina misreads the obligation in Article 10.1 to take 
account of special needs and conflates it with an obligation to remedy any shortcomings of a developing country. We find no support for this conclusion in the text or context of Article 10.1. 
Indeed, any obligation to provide technical assistance of any kind is found in Article 9 entitled 
"Technical Assistance". The Panel specifically asked Argentina to provide a textual and interpretative basis for its reasoning. Argentina's response recognizes that Article 10.1 does not 
specify any particular form of assistance. However, Argentina argues that this is because 
Article 10.1 "focuses on measure-specific situations whereas Article 9 deals with technical assistance generally."
1729 We find this argument unpersuasive. Argentina cannot point to anything 
in the text of Article 10.1 to indicate that it applies to specific technical assistance while Article 9 
applies to general technical assistance. In our view, Article 9.2 refers to the product involved 
indicating that Article 9 covers general and specific technical assistance and that Article 10 relates to other subject matter.  
7.710.  In addition to the fact that any obligat ions with respect to the provision of technical 
assistance are covered by Article 9, we recall that an obligation to "take account of" mandates no particular conclusion or action. Therefore, we cannot conclude that Article 10.1 includes an 
obligation for the importing Member to provide technical assistance to correct or overcome failures 
of capacity in the exporting developing country that might also be considered special needs within the meaning of Article 10.1. For these reasons, we find that Article 10.1 does not require the 
United States to remedy any alleged lack of veterinary capacity in SENASA.  
7.711.  Nevertheless, Article 10.1 does impose an obligation to take account of special needs, 
including, potentially, a lack of veterinary capacity. In considering this issue we are cognisant that Argentina did not actually identify veterinary capacity as a special need either during the period its 
application was being considered by the United States, or during these proceedings. Rather, 
Argentina maintains that it is the United States  that identified this need and thus was required to 
take account of it in the preparation and application of its SPS measures. Argentina does not point 
to any APHIS documentation that states that APHIS views veterinary capacity to be lacking in 
Argentina. Rather, Argentina bases its argument that the United States identified lack of veterinary capacity as a special need on the United States' submissions to the Panel. In particular, in 
response to a question from the Panel, Argentina argues: 
[T]he United States points to technical assistance for training eight Argentine 
scientists in the decade from 1999-2009 and to financial assistance it provided Argentina in the 1960's .
1730 The US' own reference to technical and financial 
assistance provided to Argentina in the past in connection to imports susceptible to 
FMD is an admission by the United States that they are relevant to Argentina's special needs as a developing country. The only deficiency that the US has identified is 
alleged problems with SENASA. If that was the United States' reason for its inaction, 
then it could have addressed this "special need" by supporting SENASA.
1731 
                                               
1727 We discuss below in this section of our findings  whether there is any obligation on the importing 
Member to offer assistance to remedy any defi ciencies identified purs uant to Article 10.1. 
1728 Argentina's second written submission, para. 20. 
1729 Argentina's response to Panel question No. 51 following the second substantive meeting. 
1730 (footnote original) United States FWS at para. 113. 
1731 Argentina's response to Panel question No . 74 following the first substantive meeting. WT/DS447/R 
 
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  7.712.  Argentina further argues that the United States' defence of its failure to approve imports 
from Argentina is based on an attack on SENASA which "is inaccurate, unfair and indefensible."1732 
Nevertheless, Argentina contends that it is "important in the context of Article 10.1 to understand that, if the lack of capability of SENASA was, in fact, the reason for the US denial of Argentina's 
applications for the past 12 years, then the United States had an obligation under Article 10.1 to 
assist Argentina."
1733 Argentina does not provide specific citations or quotations from the 
United States' submissions that it believes support its contention that the United States has 
identified a lack of capacity at SENASA. As Argent ina admits, the identification of this special need 
is a supposition deduced from the United States arguments made to this Panel in the context of WTO dispute settlement and not from any identification by APHIS of a lack of veterinary capacity 
at SENASA in any documentation or communications.
1734 Indeed, at least since 2005, APHIS 
documentation tends to support the opposite conc lusion. Therefore, we find that veterinary 
capacity was not identified by either Argentina or the United States as a special need of Argentina. In these circumstances, we do not consider that Argentina has made a prima facie  case that the 
United States has acted inconsistently with Article 10.1 by failing to take account of an alleged lack 
of veterinary capacity at SENASA.  
7.9.4.5  Conclusion 
7.713.  For the reasons outlined above, we do not consider that Argentina has satisfied its burden 
of proof to establish that the United States did not take account of its special needs as required by Article 10.1. 
7.10  Consequential violations 
7.10.1  Argentina's claims under Article 1.1 of the SPS Agreement 
7.10.1.1  Relevant legal provision 7.714.  Article 1.1 of the SPS Agreement states: 
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. 
7.10.1.2  Main arguments of the parties 
7.10.1.2.1  Argentina 7.715.  Argentina notes that as 9 CFR 94.1(b) and the 2001 Regulations are SPS measures, they 
may only be applied to the extent that they are "in accordance with the provision of this 
[SPS] Agreement". Argentina submits that as the measures are inconsistent with the provisions of 
the SPS Agreement, as a consequence they are inconsistent with the requirements of Article 1.1.
1735 
7.10.1.2.2  United States 
7.716.  The United States presents no specific arguments with respect to this claim. 
                                               
1732 Argentina's second written submission, para. 279. Indeed, Part III of Argentina's second written 
submission is devoted to explaini ng the capabilities of SENASA. 
1733 Argentina's second written submission, para. 279. 
1734 Argentina's second written submission, paras. 20 and 279; Argentina's response to Panel question 
No. 51 following the second substantive meeting. Indeed, at the second substantive meeting with the parties, 
the United States stated that it had never said that  SENASA did not meet the United States' standards but 
rather that they were evaluating them and that APHIS has now concluded that SENASA does meet the 
United States' standards.  
1735 Argentina's first written submission, paras. 181, 184, and 414. WT/DS447/R  
 
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  7.10.1.3  Main arguments of the third parties 
7.10.1.3.1  European Union 7.717.  The European Union doubts whether Article 1.1 of the SPS Agreement, by itself, may serve 
as a legal basis for a claim in WTO dispute settlement proceedings, asserting that it serves merely 
to define the scope of the SPS Agreement. The Eu ropean Union submits that Article 1.1 does not 
contain any specific obligation for WTO Members, and is independent from the obligations contained in the other provisions of the SPS Agreement. It states that "a Member's potential non-
compliance with the general reference of Article 1.1 would always depend absolutely on non-
compliance with some other provision of the SPS Agreement". As a consequence, no legal claim 
can be based solely on Article 1.1 of the SPS Agreement.
1736 
7.10.1.4  Analysis by the Panel 
7.718.  We note that there are provisions in othe r covered agreements that are not dissimilar from 
the language in Article 1.1 of the SPS Agreement. In particular, Article 1 of the Anti-Dumping Agreement
1737 and Article 10 of the SCM Agreement1738 also call for all measures taken 
under each respective agreement to be consistent with the terms of that agreement. Panels 
regularly make findings of consequential violation of these provisions when complainants include them in their claims.
1739 The Appellate Body has explained that "to succeed in a claim under 
Article 1 of the Anti-Dumping Agreement or Ar ticle 10 of the SCM Agreement, a complaining 
Member need only establish that anti-dumping or countervailing duties were imposed and the 
imposing Member acted inconsistently with one of its obligations under the relevant Agreement."
1740 
7.719.  Although no complainant has previously raised a claim of consequential violation of 
Article 1.1 of the SPS Agreement, we see no reason why we should not consider this claim by Argentina. We note that we have found that 9 CFR 94.1, as amended by the 2001 Regulations, is 
inconsistent with Articles 3.1, 3.3, 5.1, 2.2, 5.6, 2.3, and with respect to Patagonia Article 6.1 of 
the SPS Agreement. Therefore, we find that it is also inconsistent with Article 1.1 of the 
SPS Agreement.  
7.10.2  Argentina's claims under Ar ticle 3.3 of the SPS Agreement  
7.720.  We recall that Article 3.3 codifies Members' autonomous right to establish their own ALOP 
and to adopt SPS measures that achieve a higher level of protection than would be achieved by a measure based on international standards, guidelines or recommendations.
1741 We also recall that 
the right under Article 3.3 is not absolute or unqualified1742 and to be consistent with Article 3.3 
the United States' measures must not be inconsistent with any other provision of the SPS Agreement.
1743  
                                               
1736 European Union's third-part y submission, paras. 22-25. 
1737 Article 1 of the Anti-Dumping Agreement provides : "An anti-dumping measure shall be applied only 
under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and 
conducted in accordance with the provisions  of this Agreement." (footnote omitted) 
1738 Article 10 of the SCM Agreement states: Members shall take all necessary steps to ensure that the 
imposition of a countervailing duty on any product of th e territory of any Member imported into the territory of 
another Member is in accordance with the provisions of Article VI of GATT 1994 and the terms of this Agreement. Countervaili ng duties may only be impo sed pursuant to investigations initiated and conducted 
in accordance with the prov isions of this Agreement and the Agreem ent on Agriculture. (footnotes omitted) 
1739 See e.g. Panel Report, China – Broiler Products , paras. 7.512-7.613; Panel Report, China – GOES , 
para. 7.681. 
1740 Appellate Body Reports, US – Anti-dumping and Countervailing Duties (China) , para. 358 and US – 
Softwood Lumber IV , para. 143. 
1741 Appellate Body Report, EC – Hormones , paras. 104 and 172. 
1742 Appellate Body Report, EC – Hormones , para. 173. 
1743 Appellate Body Report, EC – Hormones , paras. 175-177 (finding that the requirement to comply 
with all the other provisions of the SPS Agreement (including Article 5) applies both to measures adopted either (a) if there is a scientific justification, or (b) as a consequence of the level of sanitary or phytosanitary 
protection a Member determines to be appropriate). See also Appellate Body Report, Canada/US – Continued 
Suspension , para. 685. WT/DS447/R 
 
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  7.721.  We already found in paragraph 7.257 that the United States acted inconsistently with 
Article 3.3 because of its violation of Article 8 and Annex C(1)(a) and (b). We noted that we would return to Article 3.3 after we had completed our analysis of the rest of Argentina's claims. Having found that the United States measures are also inconsistent with Articles 5.1, 2.2, 5.6, 2.3, 6.1, 
and 1.1 of the SPS Agreement, we find that these are separate and additional bases for 
inconsistencies with Article 3.3.
1744  
7.11  Argentina's claims under the GATT 1994 
7.722.  Argentina also claims that the United States' measures are inconsistent with provisions of 
the GATT 1994, in particular Articles I:1 and XI:1. 
7.11.1  Main arguments of the parties 7.11.1.1  Argentina 
7.11.1.1.1  Article I: 1 of the GATT 1994 
7.723.  Argentina submits that the application of the United States' measures against Argentine 
beef and ruminant and swine products from Patagonia is inconsistent with Article I:1 of the 
GATT 1994 because the United States grants advantages to other WTO Members in respect of like 
products that are not immediately and unconditionally accorded to Argentina. Argentina relies on WTO case law in stating that there are three steps in determining whether there is a violation of 
the Article I MFN obligation: is there (i) an "advantage" offered (ii) on a "like product" of another 
Member that (iii) has not been offered "immediately and unconditionally" to the complaining Member?
1745  
7.724.  For the first step, Argentina argues that there are two "advantages" at issue. The first is 
the ability to export to the United States. Argentina states that this advantage was accorded to, 
for example, Uruguay, which is similarly situated to Argentina as an area that is FMD-free where vaccination is practised.
1746 With respect to Patagonia, Argentina argues that it is similarly situated 
to Santa Catarina, which is permitted to export to the United States.1747 The second type of 
"advantage" Argentina refers to is access to and the completion of APHIS' regulatory process for conducting a risk assessment and concluding a final rulemaking to permit imports. Argentina 
compares its situation to that of Uruguay, which had the advantage of a risk assessment 
conducted in 2003, two years after an outbreak, and compares Patagonia to Santa Catarina. Noting that while APHIS has never published either the risk assessment it carried out for Patagonia in 2005 or a final rulemaking, Argentina alleges that Santa Catarina has had a risk assessment 
completed and that it gained import rights pursuant to the settlement of the US – Upland Cotton 
dispute. 
7.725.  As for the requirement that the products be "like", Argentina submits that products are 
fresh (chilled or frozen) beef from Argentina and other WTO Members, including Uruguay, and 
ruminants and swine from Patagonia and other WTO Members, including Brazil (Santa Catarina), 
Chile, Japan, or the United Kingdom. Argentina argues that the products are "like" according to the 
four criteria of "likeness" first set forth by the GATT panel in Border Tax Adjustments. According to 
Argentina, the products are named similarly, physically identical, marketed in a similar way, have the same end-uses, and are perceived similarly by consumers.
1748  
7.726.  The third step requires the complainant to establish that the advantage on the like product 
has not been "immediately and unconditionally offered" to it. In this regard, Argentina asserts that 
it is unable to export the relevant products while other Members, like Uruguay and Brazil, can do 
                                               
1744 Argentina's first written submission, paras. 227 and 449. 
1745 Argentina's first written submission, para. 361. 
1746 Argentina's first written submission, para. 364. 
1747 Argentina's first written submission, para. 577. 
1748 Argentina's first written submission, paras. 369, 582-584. WT/DS447/R  
 
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  so. Argentina also submits that it has not been immediately accorded access to the United States' 
regulatory system in particular when compared with other WTO Members.1749  
7.11.1.1.2  Article XI:1 of the GATT 1994 7.727.  Argentina asserts that the relevant measures result in a prohibition on importation of fresh 
(chilled or frozen beef) from Argentina and all ruminant and swine products from Patagonia. 
According to Argentina, this constitutes a zero quot a and is thus clearly prohibited by Article XI:1 
of the GATT 1994.
1750  
7.11.1.2  United States 
7.11.1.2.1  Article I: 1 of the GATT 1994 
7.728.  The United States does not answer specifically the arguments made by Argentina in 
relation to the GATT 1994 Article I:1 three-step test. It asserts that its application system is 
necessary to protect animal life or health, cons istent with the SPS Agreement and Article XX(b). 
The United States notes that, pursuant to Articl e 2.4 of the SPS Agreement, if a measure complies 
with the SPS Agreement, then it is presumed to  comply with Article XX(b). The United States 
concludes by stating that because it has satisfied its obligations under the SPS Agreement and 
Article XX(b), it has not breached Article I:1.1751 
7.11.1.2.2  Article XI:1 of the GATT 1994 
7.729.  The United States does not answer specifically the arguments made by Argentina in 
relation to Article XI:1. Rather, it asserts that its application system is necessary to protect animal life or health, consistent with the SPS Agreement and Article XX(b) of the GATT 1994. The United States notes that pursuant to Article 2.4 of the SPS Agreement, if a measure complies with 
the SPS Agreement, then it is presumed to comply  with Article XX(b). The United States concludes 
by stating that because it has satisfied its obli gations under the SPS Agreement and Article XX(b), 
it has not breached Article XI:1.
1752 
7.11.2  Analysis by the Panel 
7.730.  We recall that a panel need only address those claims that must be addressed to resolve 
the matter at issue in the dispute. A finding of violation on the principal claim may make it 
unnecessary to continue and rule on alternative claims or on those made under other covered 
agreements.1753 In particular, with respect to disputes where claims are raised under the 
GATT 1994 and the SPS Agreement, panels often decide that it is not necessary to make findings under the GATT 1994.
1754 Prior panels have recognized that the relationship between the two 
agreements could lead to circular reasoning that does not aid in providing a positive resolution to 
the dispute. The panel in Australia – Salmon reasoned that where any findings of inconsistency 
with GATT 1994 provisions would also require an examination of whether the measure was 
justified under Article XX(b) of the GATT 1994, the Panel would be led back to the SPS Agreement, 
with which the panel had already found inconsistencies.1755 Such a conclusion is bolstered by 
Article 2.4 of the SPS Agreement, which states that:  
                                               
1749 Argentina's first written submission, paras. 371-374, 585-588. 
1750 Argentina's first written submission, paras. 379, 592. 
1751 United States' first written submission, para. 368. 
1752 United States' first written submission, para. 368.  
1753 Appellate Body Report, US – Wool Shirts and Blouses , pp. 17-20, DSR 1997:I, 323 at 339-340. 
1754 See e.g. Panel Reports, EC – Hormones (US) , para. 8.272; EC – Hormones (Canada) , para. 8.275; 
Australia – Salmon , para. 8.185; Japan – Apples , para. 8.328; EC – Approval and Marketing of Biotech 
Products , paras. 7.3422 and 7.3429; India – Agricultural Products , para. 7.803. 
1755 Panel Report, Australia – Salmon , para. 7.19. The panel in US – Poultry (China)  reached a similar 
conclusion when it determined that for an SPS measure to be justified under Article XX(b) of the GATT 1994, it 
must be in conformity with the SPS Agreement and thus  consideration of such a defence would lead the panel 
right back to its analysis of conformity with the SPS Agreement. See Panel Report, US – Poultry (China) , 
para. 7.481. WT/DS447/R 
 
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  [S]anitary or phytosanitary measures which conform to the relevant provisions of 
this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of the GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular Article XX(b).  
7.731.  In light of the above, the Panel considers that when the United States brings its measures 
into conformity with the SPS Agreement, any in consistency with the GATT 1994 will also be 
addressed. Under the circumstances, we see no reas on to disagree with the consistent approach of 
prior panels. 
7.732.  We recall our findings above that the United States' measures are inconsistent with 
Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.6, 6.1, 8 and Annex C(1)(a) and (b) of the SPS Agreement. Having made findings under the SPS claims, we conc lude that it is not necessary to make findings 
under the GATT 1994 claims as they would not cont ribute to a positive resolution of the matter.
1756 
Therefore, we consider it appropriate to exercise  judicial economy over Argentina's claims under 
Articles I:1 and XI:1 of the GATT 1994 and the United States' defence under Article XX(b). 
8  CONCLUSIONS AND RECOMMENDATION(S) 
8.1.  As described in greater detail above, the Panel finds in respect of Argentina's claims pursuant 
to the SPS Agreement that: 
a. The United States' measures (9 CFR 94.1, as amended by the 2001 Regulations, the 
application of 9 CFR 92.2 to Argentina's applications for authorization to import for fresh (chilled or frozen) beef from Northern Argentina, and FMD-susceptible animals and animal products from Patagonia, and Section 737) are SPS measures subject to the 
disciplines of the SPS Agreement. 
b. With respect to Article 8 and Annex C(1) the Panel finds that: 
i. 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 falls within the scope of Article 8 and Annex C(1) of the SPS Agreement.  
ii. That the United States has not undertaken and completed the procedure to review 
Argentina's request for imports of fresh (chilled or frozen) beef from Northern Argentina without undue delay and has therefore acted in a manner inconsistent with Article 8 and Annex C(1)(a) of the SPS Agreement. 
iii. That the United States has not undertaken and completed the review of Argentina's 
request for recognition of Patagonia as FMD-free without undue delay and it has thus acted inconsistently with Article 8 and Annex C(1)(a) of the SPS Agreement. 
iv. Argentina's claims under Article 8 and the first and third requirements of 
Annex C(1)(b) are outside the Panel's terms of reference. 
v. By failing to inform Argentina, upon request, of the stage of APHIS' review processes 
or to explain the delays incurred by such procedures, the United States acted 
inconsistently with Article 8 and the fifth requirement of Annex C(1)(b). 
c. The Panel finds that 9 CFR 94.1, as amended by the 2001 Regulations, is not based on 
the relevant provisions of the Terrestrial Code and is thus inconsistent with Article 3.1 of 
the SPS Agreement. 
                                               
1756 See e.g. Panel Reports, US/Canada – Continued Suspension , para. 7.853; Japan – Apples , 
para. 8.328; Japan – Apples (Article 21.5 – US) , paras. 8.202-8.203; EC–Hormones (US) , para. 8.272; 
Australia – Salmon , para. 8.185; and EC – Approval and Marketing of Biotech Products , para. 7.3429.  WT/DS447/R  
 
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  d. The Panel finds the United States did not seek to obtain additional information nor did it 
review the measures within a reasonable peri od of time. Therefore, the Panel finds that 
the measures do not fall within the scope of  Article 5.7 and the qualified exemption to 
the obligations in Articles 5.1, 5.2 and 2.2 is not available to the United States. 
e. With respect to Articles 5.1, 5.2, and 2.2 the Panel finds that: 
i. The June 2001 Interim Rule is a risk assessment "appropriate to the circumstances" 
within the meaning of Article 5.1, 5.2, 5.3 and Annex A(4). The Panel also finds that 
at the time the measures were adopted in 2001 they were based on that risk 
assessment. Therefore, at the time the measures were adopted they were consistent with Articles 5.1 and 5.2. 
ii. The Panel also finds that the scientific evidence required a review or new risk 
assessment, which the United States had not completed as of the date of 
establishment of the Panel. Therefore, the Panel finds that the measures are not maintained based on a risk assessment as required by Article 5.1 of the 
SPS Agreement. Such failure cannot be justified by the fact that the risk assessment 
process was ongoing because the United States acted inconsistently with Article 8 and Annex C(1)(a) in the conduct of the risk assessment in that the process incurred 
undue delays. Therefore, the maintenance of the measures is inconsistent with 
Article 5.1. Having found that there was no risk assessment, the Panel finds no basis to move forward with an analysis under Article 5.2. 
iii. As a consequence of the violation of Article 5.1, the Panel finds that the 
United States' measures are also inconsistent with Article 2.2. 
f. The Panel concludes that Article 5.4 does not impose a positive obligation on WTO 
Members. Even assuming, arguendo , that Argentina could raise a claim under 
Article 5.4, the Panel finds that it has not made a prima facie  case of inconsistency. 
g. With respect to Article 5.6 the Panel finds that: 
i. The United States' prohibitions on imports of fresh (chilled or frozen) beef from 
Northern Argentina are more trade-restrictive than required to achieve the 
United States' ALOP, and thus are inconsistent with Article 5.6. 
ii. The United States' prohibitions on imports of FMD-susceptible animals and animal 
products from Patagonia are more trade-restrictive than required to achieve the 
United States' ALOP, and thus are inconsistent with Article 5.6. 
h. With respect to Article 2.3 the Panel finds that: 
i. By allowing imports of fresh (chilled or frozen) beef from Uruguay under the 
protocols set forth in 9 CFR 94.22, while prohibiting imports of the same product 
from Northern Argentina, the United States arbitrarily or unjustifiably discriminates between Members where identical or similar conditions prevail, inconsistently with 
Article 2.3. 
ii. The Panel exercises judicial economy on Argentina's claim that, by conducting a risk 
analysis and issuing a positive determination for Uruguay within a reasonable period of time, while maintaining its prohibition on imports from Northern Argentina without 
a risk assessment since 2001, the United States discriminated between the two 
regions in terms of access to APHIS' regulatory process. 
iii. By recognizing Santa Catarina and Chile as FMD-free within the meaning of 
9 CFR 94.1(a) and allowing imports of FMD-susceptible animals and animal products 
therefrom under the protocols in 9 CFR 94.11, while prohibiting imports of the same products from Patagonia, the United States arbitrarily or unjustifiably discriminates 
between Members where identical or similar conditions prevail, inconsistently with 
Article 2.3. WT/DS447/R 
 
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  iv. The Panel exercises judicial economy on Argentina's claim that, by conducting a risk 
analysis and issuing a positive determination for Santa Catarina within a reasonable period of time, while maintaining its prohibition on imports from Patagonia without a risk assessment since 2001, the United States discriminated between the two regions 
in terms of access to APHIS' regulatory process. 
v. Argentina failed to demonstrate that the United States' measures arbitrarily or 
unjustifiably discriminate between, on the one hand, Northern Argentina and 
Patagonia and, on the other hand, Japan and the United Kingdom. 
i. With respect to Article 6 the Panel finds that: 
i. By failing to adapt its measures to the sanitary characteristics of Patagonia, the 
United States acted inconsistently with Article 6.1. 
ii. The Panel exercises judicial economy on Argentina's claim that, by failing to 
recognize the concepts of FMD-free areas or areas of low disease prevalence, the United States acted inconsistently with Article 6.2. 
j. Argentina has not established that the United States acted inconsistently with its 
obligations under Article 10.1 by failing to take account of Argentina's special needs.  
k.  Having found that the United States acted inconsistently with Article 8 and 
Annex C(1)(a) and (b), and Articles 5.1, 2.2, 5.6, 2.3, 6.1, and 1.1 of the 
SPS Agreement, the Panel finds that the United States has also acted inconsistently with Article 3.3. 
l. Having found that 9 CFR 94.1, as amended by the 2001 Regulations, is inconsistent with 
Articles 3.1, 3.3, 5.1, 2.2, 5.6, 2.3, and 6.1 of the SPS Agreement, we find that it is also 
inconsistent with Article 1.1 of the SPS Agreement. 
8.2.   In respect of the Argentina's claims under the GATT 1994, the Panel noted that it had 
already found that the United States' measures are inconsistent with Articles 1.1, 2.2, 2.3, 3.1, 
3.3, 5.1, 5.6, 6.1, 8 and Annex C(1)(a) and (b ) of the SPS Agreement. Therefore, the Panel 
exercised judicial economy over Argentina's claims under Articles I:1 and XI:1 of the GATT 1994 
and the United States' defence under Article XX(b) of the GATT 1994. 
8.3.  Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment of benefits under that agreement. Accordingly, we conclude that to the 
extent that the United States has acted inconsistently with the specified provisions of the 
SPS Agreement, it has nullified or impaired benefi ts accruing to Argentina under that agreement. 
8.4.  Pursuant to Article 19.1 of the DSU, having found that the United States acted inconsistently 
with its obligations under Articles 1.1, 2.2, 2.3 3.1, 3.3, 5.1, 5.6, 6.1, 8 and Annex C(1)(a) and (b) 
of the SPS Agreement, we recommend that the DSB request the United States to bring its measures into conformity with its obligations under the SPS Agreement.  
 
_______________ 
  WT/DS447/R  
 
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  APPENDIX  1 
CHRONOLOGY OF EVENTS RELATING TO  THE UNITED STATES' EVALUATION  
OF THE FOOT-AND-MOUTH DISEASE SITUATION IN ARGENTINA 
Type of Event  
Internal Argentine Event – including outbreaks and introduction of domestic regulations Bold 
OIE events Italics 
WTO notifications and current proceedings Plain 
US regulatory process – including communications with Argentina and site visits Shading 
 
 
Date Event 
1929 Last outbreak of FMD in the United States.1 
1964-1987 Continued FMD outbreaks in Argentina.2 
25 August 1997 The United States authorized the importation of fresh (chilled or frozen) beef from 
Argentina, following a risk assessment completed in June 1997.3  The authorization 
included a set of mitigating protocols to bring the imports of Argentine beef into 
compliance with the United States' ALOP. 
30 April 1999 Anti-FMD vaccination was suspended in all Argentine regions.4 
22 May 2000 OIE recognized Argentina as an FMD- free country where vaccination is not practised.5 
20 July 2000 Type O Outbreak in Clorinda, Province of FORMOSA.6 
22 July 2000 Cattle from a neighbouring country were illegally imported into Argentina.7 
27 July 2000 Type O Outbreak in Concepcion del Uruguay department of the Province of 
ENTRE RIOS.8 
28 July 2000 Type O Outbreak in Mercedes, Province of CORRIENTES.9 
2 August 2000 Type O Outbreak reported in the Pilagàs Department of the Province of 
FORMOSA.10 
4 August 2000 Type A Outbreak in Tercero Arriba, Province of CORDOBA.11 
9 August 2000 Type A Outbreak in Gral. Villegas district, Province of BUENOS AIRES.12  
9 August 2000 Out of concern for maintaining the international status of exports of 
FMD-susceptible products, SENASA decided to keep the FMD situation confidential until further data would permit a better evaluation of the situation.
13 
                                               
1 United States' first written submission, para. 106. 
2 Dr. Alberto E. Pecker, SENASA, Fiebre Aftosa : Su Paso Por La Argentina (October 2007), 
(Exhibit USA-149). 
3 Importation of Beef from Argentina , 62 Fed. Reg. 34385 (26 June 1997) (Final Rule), 
(Exhibit ARG-26). 
4 Argentina's first written submission, para. 103. 
5 Argentina's first written submission, para. 105. United States' first written submission, para. 71 
(referring to Dr. Alberto E. Pecker, SENASA, Fiebre Aftosa: Su Paso Por La Argentina (October 2007), (Exhibit USA-25)). 
6 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) (SENASA National FMD Eradication 
Plan 2001-2002), (Exhibit USA-33), p. 3.  
7 United States first written su bmission, para. 72 (referring to Certification of Beef from Argentina , 65 
Fed. Reg. 82894 (29 December 2000) (Exhibit USA-30)).  
8 SENASA National FMD Eradication Plan  2001-2002, (Exhibit USA-33), p. 3.  
9 SENASA National FMD Eradication Plan  2001-2002, (Exhibit USA-33), p. 3.  
10 SENASA National FMD Eradication Plan  2001-2002, (Exhibit  USA-33), p. 3. 
11 SENASA National FMD Eradication Plan  2001-2002, (Exhibit  USA-33), p. 4. 
12 SENASA National FMD Eradication Plan  2001-2002, (Exhibit USA-33), p. 4.  
13 United States' first written submission, para . 84; General Auditing Office of Argentina, SENASA 
Program for the Fight Against Foot and Mouth Disease  (22 August 2003), (Exhibit USA-42). WT/DS447/R 
 
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  Date Event 
10 August 2000 Argentina notified the OIE that it had detected FMD disease in animals that 
had illegally entered the North-easter n provinces of Argentina through the 
Northern border.14 
14 August 2000 Type A Suspect case reported in Rio Segundo (centre-north of the Province of 
CORDOBA).15 The district was located to the south of the Province of 
CORDOBA where the first outbreaks occurred. By mid - November, the epidemic had spread to the centre – west of the Province of CORDOBA and had entered San Luis. The first outbreaks in San Luis were reported in February 2001 and affected the distri cts of Dupuy and General Pedernera.
16   
16 August 2000 Argentina confirmed to APHIS that one of the animals imported on 22 July 2000 was 
infected with FMD.17 
21 August 2000 Type O Outbreak reported in the Las Palmas District, Bermejo County in 
Province of CHACO .18, 19 
27 September- 
6 October 2000 APHIS conducted a site visit to Argentina in conjunction with OIE staff, with a view to 
gathering information necessary to conduct a risk assessment for Argentina in 
connection with Argentina's report that FM D-infected bovines had been imported into 
Argentina illegally from Paraguay on 10 August 2000.20 
2 October 2000 Type O Outbreak reported in the Capital district of the Province of 
MISIONES.21 
Mid-November 2000 SENASA stated that, by mid-November 2000, the type "A" FMD epidemic had 
spread to the centre west of the Province of CORDOBA and had entered SAN LUIS.
22  
November 2000 The president of SENASA resigned.23 
4 December 2000 APHIS publishes a favourable ri sk analysis on fresh or frozen beef from Argentina. The 
risk identified was associated to Argentina' s report that 10 bovine s, 4 of which were 
FMD-infected, had been imported into Argentina illegally from Paraguay.24 
11 December 2000 Type O Outbreak reported in the Vera district of the Province of SANTA FE.25 
18 December 2000 Type O Outbreak reported in the San Christobal district of SANTA FE.26 
29 December 2000 APHIS published an interim rule allowing  the importation of beef imports from 
Argentina to resume under 9 CFR 94.21 and amended that section to add additional 
conditions on the importation. 
January 2001 65 outbreaks of FMD reported in January 2001.27 
February 2001 203 outbreaks of FMD reported in February 200128 
February 2001 The United States alleges that the FMD disease expanded into the Province of 
SAN LUIS during the month of February 2001, where a total of 12619 animals 
were affected by and 166278 were exposed to FMD.29 
March 2001 247 outbreaks of FMD reported in March 200130 
                                               
14 Argentina's first written submission, para. 106.  
15 SENASA National FMD Eradication Plan 2001-2002, (Exhibit USA-33), p. 4.  SENASA also mentions 
that seven outbreaks followed between 23 August 2000 and 25 September 2000 . SENASA also mentioned that 
the period between 21 August 2000 to 15 September 2000 was the first in which there were 4 outbreaks in General Roca and in Rio Segundo at the same time. 
16 SENASA National FMD Eradication Plan  2001-2002, (Exhibit  USA-33), p. 3. 
17 2001 Interim Rule on Argentina, (Exhibit ARG-29). 
18 SENASA National FMD Eradication Plan  2001-2002, (Exhibit  USA-33), p. 3. 
19 SENASA National FMD Eradication Plan  2001-2002, (Exhibit USA-33), p. 4.  
20 USDA/APHIS, Risk Analysis: Evaluation of ri sk to the United States (US)  of importing Foot and Mouth 
Disease (FMD) Virus in Fresh or Frozen Beef from Argentin a (4 December 2000), (2000 Risk Analysis for 
Argentina), (Exhibit ARG-28). 
21 SENASA National FMD Eradication Plan  2001-2002, (Exhibit  USA-33), p. 3. 
22 SENASA National FMD Eradication Plan 2001-2002, (E xhibit USA-33). 
23 United States' first written submission, para. 90. 
24 2000 Risk Analysis for Argentina, (Exhibit ARG-28). 
25 SENASA National FMD Eradication Plan  2001-2002, (Exhibit  USA-33), p. 4. 
26 SENASA National FMD Eradication Plan  2001-2002, (Exhibit  USA-33), p. 4. 
27 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16. 
28 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16. 
29 United States' first written submission, para. 78  (referring to Information Provided by SENASA 
(November 2002), (Exhibit USA-32), p. 16).  WT/DS447/R  
 
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  Date Event 
March 2001 SENASA introduced a new president, who resigned after 10 days, thus leading 
to the reappointment of a former president to head the agency.31 
12 March 2001 Argentina reported to the OIE and the US that they had detected an FMD outbreak in 
the Province of BUENOS AIRES. A few days  later Argentina informed the OIE and the 
US of outbreaks in four additional provinces.32   
12 March 2001 Argentina suspended its exports of fresh (chilled or frozen) beef to the US.33 
April 2001 359 outbreaks of FMD reported in April 200134 
1 April 2001 SENASA passed Decree 394/2001, through which it appointed a new 
president and vice-president of the agency and provided for the appointment of a new board of directors.
35 
6 April 2001 SENASA adopted Resolution 5/01, setting forth the National FMD Eradication 
Plan.36 
26 April 2001 Pursuant to the National FMD Eradication Plan, SENASA adopted 
Resolution 25/2001, through which it established the regionalization of the Argentine territory, including controls on movement of FMD-susceptible animals between regions.
37  This supersedes Resolution 9/2001 adopted on 
28 March 2001. 
24 May 2001 SENASA implemented Resolution No 58/2001.38 
30 May 2001 OIE removed Argentina from the list of countries free of FMD where vaccination is not 
practised.39 
May 2001 605 outbreaks of FMD reported in May 200140, 41 
4 June 2001 The United States published an interim rule on 4 June 2001, with retroactive effect as 
from February 19, 2001, which prohibited imports of fresh beef from Argentina, as an 
emergency measure following the outbreak.42 
June 2001 540 outbreaks of FMD reported in June 200143 
July 2001 324 outbreaks of FMD reported in July 200144 
August 2001 68 outbreaks of FMD reported in August 200145 
September 2001 17 outbreaks of FMD reported in September 200146 
October 2001 1 outbreaks of FMD reported in October 200147 
November 2001 7 outbreaks of FMD reported in November 200148 
11 December 2001 The interim rule of 4 June 2001 prohibiting import of fresh beef from Argentina was 
imposed as a final rule. Upon its publication in the Federal Register, the final rule 
terminated the authorization at 9 CFR 94.21 which had allowed access of fresh meat 
from Argentina.49   
                                                                                                                                               
30 Information Provided by SENASA (November 2002), (E xhibit USA-32), p.16. S ee also United States' 
first written submission, paras. 78-81. 
31 "Cane Returns to Lead SENASA", La Nación (30 March 2001), (Exhibit USA-49). 
32 2001 Interim Rule on Argentina, (Exhibit ARG-29), pp. 29897-29898. 
33 Argentina's first written submission, para. 107. 
34 Information Provided by SENASA (November 2002), (E xhibit USA-32), p.16. S ee also United States' 
first written submission, paras. 78-81. 
35 SENASA Decreto 394/2001, (Exhibit USA-50).  
36 Resolución SENASA 5/2001, (Exhibit ARG-4/USA-37). 
37 Resolución SENASA 25/2001, (Exhibit ARG-92). 
38 Resolución SENASA 58/2001, (Exhibit USA-59).  
39 OIE Resolution XVII of 2001, (Exhibit ARG-103). 
40 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16.  
41 United States' first written submission, para. 78 (referring to Information Provided by SENASA 
(November 2002), (Exhibit USA-32)). 
42 2001 Interim Rule on Argentina, (Exhibit ARG-29). 
43 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16. 
44 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16. 
45 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16. 
46 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16. 
47 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16. 
48 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 16. 
49 2001 Final Rule on Argentina, (Exhibit ARG-30). WT/DS447/R 
 
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  Date Event 
December 2001 2 outbreaks of FMD reported in December 200150 
18 January 2002 SENASA adopted Resolution 112/02, which prohibited the entry of 
FMD-vaccinated animals into Pata gonia North B and Patagonia South.51 
23 January 2002 Argentina reported an outbreak in the Province of CORDOBA.52 
May 2002 The OIE recognized Patagonia South as an FMD-free zone where vaccination is not 
practised.53  
November 2002 SENASA submitted a request for authorization of imports of Argentine fresh (chilled or 
frozen) beef into th e United States, pursuant to 9 CFR 92.54 
6 November 2002 APHIS sent a fax to SENASA proposing to arrange a meeting between SENASA and 
APHIS' area director in Colombia.55  
16 December 2002 Officials from the United States met with Argentina officials and requested technical 
documents to allow for the initiation of a risk analysis.56  
30 December 2002 SENASA passed Resolution 1051/2002, which repealed Resolution 112/2002 
and modified the precautions for the preservation of the FMD-free status of Patagonia South and Patagonia North B.
57   
23 April 2003 Officials from the United States and Argentina animal health officials met to discuss a 
range of issues.58 During the meeting, the countries confirmed that a technical team 
would visit Argentina in September 2003 to discuss the status of FMD.59 
18-23 May 2003 The OIE confirmed its recognition of Patagonia South as FMD-free without 
vaccination.60 
July 2003 The OIE recognized the Argentine territory located north of the 42nd parallel as an 
FMD-free zone where vaccination is practised.61 
28 August 2003 SENASA submitted a formal request to APHIS requesting the recognition of Patagonia 
as a region free of FMD.62   
28 August 2003  SENASA notified the OIE of the presence of animals with symptoms similar to FMD in 
the city of Tartagal, Department of San Martin, Province of Salta.63  
29 August 2003 Suspicion of an FMD outbreak in the city of Tartagal, Department of San 
Martin, Province of Salta.64  SENASA notified APHIS of the situation on the 
same day.65 
August 2003 The OIE responded to the outbreak repo rt in the Province of Salta by suspending 
Argentina’s status as FM D-free with vaccination.66   
2 September 2003 Outbreak of Type "O" confirmed in the city of Tartagal, Department of San 
Martin, Province of Salta.  A SENASA epidemiological report performed on pigs 
                                               
50 Information Provided by SENASA (November 2002), (Exh ibit USA-32), p. 16. See also United States' 
first written submission, paras. 78-81. 
51 Resolución SENASA 112/2002, (Exhibit ARG-94). 
52 Information Provided by SENASA (Novem ber 2002), (Exhibit USA-32), p. 14.  
53 Argentina's first written submission, para. 133. 
54 Information Provided by SENASA (N ovember 2002), (Exhibit USA-32).  
55 Facsimile from Donald Wimmer (Uni ted States Department of Agricu lture, Animal and Plant Health 
Inspection Service (USDA, APHIS) Buenos Aires, Arge ntina Area Director) to Dr . Bernardo Cane (SENASA, 
President) (6 November 2002), (Exhibit USA-78). 
56 SENASA's letter of 30 December 2002, (Exhibit U SA-79). In the communicati on, Argentina confirms 
that it submitted the technical documents the United States requested during the course of the 16 December meeting. 
57 Resolución SENASA 1051/2002, (Exhibit USA-60). 
58 APHIS' facsimile of 29 April 2003, (Exhibit USA-80). 
59 APHIS' facsimile of 29 April 2003, (Exhibit USA-80). 
60 OIE World Assembly, Resolution XX, Recognition of the Foot and Mouth Disease Status of Member 
Countries , 71st General Session (18-23 May 2003), (Exhibit ARG-100). 
61 Report of the Meeting of the OIE Foot and Mouth Disease and Other Epizootic s Commission (Paris, 16, 
17 and 22 May 2003), (Exhibit ARG-119). 
62 Information Provided by SEN ASA (July 2003), (Exhibit USA-98). 
63 Argentina's first written submission, para. 112. 
64 Report of the Meeting of the OIE Scientific Commission for Animal Diseases (December 2003), 
(Exhibit USA-81). 
65 SENASA's letter of 29 Augu st 2003, (Exhibit USA-83). 
66 Report of the Meeting of the OIE Scientific Commission for Animal Diseases (December 2003), 
(Exhibit USA-81). The OIE Scientific Commission also noted that the status of Patagonia as FMD-free without vaccination remained unaffected.  WT/DS447/R  
 
- 230 - 
 
  Date Event 
in the establishment concerned revealed that 16 pigs were infected, 2 of 
which died.67 68   
September 2003 APHIS arranged to perform a site visit in September 2003 to the Argentina region 
bordering Bolivia. However, th e visit was cancelled by SENASA.69   
3 October 2003 APHIS' requested additional information fro m SENASA with respect to the outbreak in 
Salta and notified SENASA of the model APHIS would use to assess the risk of FMD and 
the ensuing requests for additional in formation to develop input parameters.70  
6 October 2003 An additional APHIS site visit was scheduled to occur on 6 October 2003, however, 
SENASA notified APHIS of the FMD outbreak.71 APHIS cancelled the visit.72 
14 October 2003 APHIS reiterated its desire to conduct the site review because the visit was important 
to further its evaluation of FMD in Argentina.73   
30 October 2003 APHIS and SENASA arranged a bilateral meeting to convene in Buenos Aires.74  
6 November 2003 APHIS contacted SENASA regarding a 1 December 2003 site visit to Patagonia.75 APHIS 
also requested additional information from SENASA regarding the request for regional 
recognition of Patagonia as FMD-free.76 
1-5 December 2003 APHIS, together with the Canadian Food Inspection Agency, conducted a site visit to 
Patagonia South and the Patagonia buffer zo ne consisting of Patagonia North A and B 
to continue its assessment of the status of FMD in the area.77  
18 February 2004 SENASA responded to APHIS’ request for a second bilateral meeting to reconvene in 
Buenos Aires on 8 March 2004.78  
2 March 2004 In a follow-up letter sent to SENASA after the APHIS site visit between 1-5 December 
2003 to Patagonia, APHIS informed SENASA that it would need to provide additional 
information to allow APHIS to pr oceed with the risk assessment.79   
23-28 May 2004 The OIE confirmed the recognition of Patagonia South as FMD-free without 
vaccination.80 
28 July 2004 SENASA and APHIS had an additional bilateral meeting in Buenos Aires, as agreed on 
18 February 2004.81 
October 2004 The OIE Ad HOC Group evaluated SENASA's request to retain the status of FMD-free 
with vaccination for Argentina.82  
16 November 2004 SENASA responded to the 2 March 2004 le tter, providing additional information 
concerning Patagonia in response to APHIS' request.83   
November 2004 SENASA submitted its response to APHI S' October 2003 request for additional 
information in connection with Argentina's request for imports of fresh (chilled or 
frozen) beef.84 
                                               
67 Argentina's facsimile of 5 September 2003, (Exhibit USA-51). 
68 SENASA's letter of 29 Augu st 2003, (Exhibit USA-83). 
69 APHIS' letter of 14 October 2003, (Exhibit USA-82). 
70 APHIS' letter of 3 October 2003, (Exhibit USA-84). 
71 SENASA's letter of 29 Augu st 2003, (Exhibit USA-83). 
72 APHIS' letter of 3 October 2003, (Exhibit USA-84). 
73 APHIS' letter of 14 October 2003, (Exhibit USA-82). 
74 Facsimile from Thomas C. Schissel (United States Department of Agri culture, Animal and Plant Health 
Inspection Service, USDA, APHIS, Assistant Area Director) to Jorge N. Amaya (SENASA, President) 
(23 October 2003), (Exhibit USA-85).  
75 APHIS' facsimile of 6 November 2003, (Exhibit USA-99). 
76 APHIS' letter of 6 November 2003, (Exhibit USA-100). 
77 APHIS' letter of 2 March 2004, (Exhibit USA-102). 
78 Facsimile from SENASA to Theresa Bo yle (United States Department of  Agriculture, Animal and Plant 
Health Inspection Service, USDA, APHIS, Area Director) (18 February 2004), (Exhibit USA-86). 
79 APHIS' letter of 2 March 2004, (Exhibit USA-102). 
80 OIE World Assembly, Resolution XX, Recognition of the Foot and Mouth Disease Status of Member 
Countries , 72nd General Session (23-28 May 2004), (Exhibit ARG-101). 
81 Facsimile from SENASA to Theresa Bo yle (United States Department of  Agriculture, Animal and Plant 
Health Inspection Service, USDA, APHIS, Ar ea Director) (30 July 2004), (Exhibit USA-87). 
82 Report of the Meeting of the OIE Ad Hoc Group fo r Evaluation of Country Status for Foot and Mouth 
Disease (October 2004), (Exhibit USA-88).  
83 Information on Patagonia Provided by  SENASA (November 2004) , (Exhibit USA-103). 
84 Information on Northern Argentina provided  by SENASA (November 2004) , (Exhibit ARG-86).  WT/DS447/R 
 
- 231 - 
 
  Date Event 
January 2005 The OIE Ad HOC Group which had evalua ted SENASA's request to retain the status of 
FMD-free with vaccination for Argentina reco mmended that Argentina be recognized as 
FMD-free with vaccination.85 
17 March 2005 APHIS sent a letter to SENASA recalling that , in an earlier communication, APHIS had 
expressed its availability to conduct a visit to Argentina north of the 42nd parallel in 
June 2005. APHIS proposed to prepone the visit to 30 May 2005, and specified that the 
purpose of the visit was to gather information for the purposes of a quantitative risk 
assessment in order to determine whethe r Argentina may resume  imports of fresh 
(chilled or frozen) beef.86   
21 April 2005 Prior to the scheduled visit to Northern Argentina, APHIS requested additional 
information from SENASA to assist in compiling data to be used in the quantitative and 
qualitative risk analysis of the Arge ntine region north of the 42nd parallel.87 
24 May 2005  The OIE restored the FMD-free with vaccination status of Argentina's territory located 
north of the 42nd parallel.88 By the same Resolution, the OIE confirmed the recognition 
of Patagonia South as FMD-free without vaccination.89 
30 May-3 June 2005 APHIS conducted the scheduled site visit to the Argentina's territory north of the 42nd 
parallel.90  
June 2005 APHIS concluded and produced the risk an alysis evaluating Patagonia South as a 
region free of FMD.91   
7 July 2005 APHIS sent a follow-up letter to SENASA summarizing comments  and observations 
made by its veterinary services during the visit to the Argentina region north of the 
42nd parallel.92   
4 August 2005 APHIS requested additional information from SENASA in light of a strike by SENASA 
personnel.93   
15 November 2005 SENASA introduced Resolution No 725. 94 The Resolution qualified the 
equivalence requirements between the regions, Patagonia North B and Patagonia South by imposing traceability requirements
.95 Resolution No. 725 
maintained the general ban on transport to Patagonia South and Patagonia North B of animals susceptible to FMD; in addition, the resolution specified traceability requirements for animals traveling through the two zones.
96 
30 November 2005 The Argentine Ambassador in a letter to the Secretary for Agriculture in the United 
States requested the USDA to expedite the administrative procedures to allow access 
of fresh beef from Argentina to the United States market.97 
5 December 2005 SENASA sent a letter to APHIS reporting about SENASA strikes, and stating 
that such strikes did not affect emergency services.98 
5 February 2006 Two outbreaks of "type O" FMD occurred in San Luis del Palmar, Province of 
CORRIENTES.99 
                                               
85 Report of the Meeting of the OIE Ad Hoc Group fo r Evaluation of Country Status for Foot and Mouth 
Disease (October 2004), (Exhibit USA-88).  
86 Letter from John R. Clifford (Uni ted States Department of Agriculture, Animal and Plant Health 
Inspection Service, USDA, APHIS) to Dr. Jose Moli na (SENASA, Minister) (17 Ma rch 2005), (Exhibit USA-90). 
87 APHIS' letter of 21 April 2005, (Exhibit USA-91). 
88 OIE Resolution XX of 2005, (Exhibit ARG-95). 
89 OIE Resolution XX of 2005, (Exhibit ARG-95). 
90 APHIS' letter of 7 July 2005, (Exhibit USA-92). 
91 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9).   
92 APHIS' letter of 7 July 2005, (Exhibit USA-92). 
93 APHIS' letter of 4 August 2005, (Exhibit USA-93). 
94 Resolución SENASA 725/2005, (Exhibit USA-61). 
95 United States' first written submission, para. 101. 
96 United States' first written submission, para. 101. 
97 Letter from Hon. José O. Bordón, Ambassador of Argentina to Hon. Mike Johanns, US Secretary of 
Agriculture (30 November 2005), (Exhibit ARG-37). 
98 SENASA's letter of 5 Decemb er 2005, (Exhibit ARG-96). 
99 FMD Impact Worksheet, (Exhibit USA-54). See also OIE Disease Information, Vol. 19, No. 6, p. 96. WT/DS447/R  
 
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  Date Event 
8 February 2006 The president of SENASA notified the FMD outbreaks in San Luis del Palmar, 
Province of CORRIENTES to the OIE.100 
SENASA enacted Resolution 35/2006 establishing a sanitary alert which 
covered a zone comprising the affected  department i.e. San Luis del Palmar, 
and the seven neighbouring departments i. e.: Capital; San Cosme; Itatí; Berón 
de Astrada; General Paz; Mburucuya; and Empedrado.101 
10 February 2006 APHIS requested information regarding the outbreak in the Province of 
CORRIENTES.102 
May 2006 The OIE removed the Argentina region north of the 42nd parallel from the list of 
FMD-free zones with vaccination.103  The OIE, however, maintained the FMD-free 
without vaccination status of Patagonia South.104 
27 June 2006 APHIS contacted SENASA in connection with Argentina's request for authorization of 
imports of fresh (chilled or frozen) beef . APHIS informed SENASA that, in order to 
conclude its risk analysis, APHIS considered  it necessary to arrange a visit to the 
Province of CORRIENTES to evaluate the area affected by the FMD outbreaks. APHIS 
proposed to conduct the visit in August.105   
26 July 2006 In response to APHIS' request for inform ation of 10 February 2006, SENASA submitted 
a report to APHIS detailing the actions taken by SENASA in response to the FMD 
outbreaks in the Province of CORRIENTES and to ensure the preservation of the 
FMD-free without vaccination status of Patagonia South.106 
6-8 September 2006  APHIS visited the areas affected by th e FMD outbreaks and performed an audit.107 
5 January 2007 APHIS published a proposed rule in the Fede ral Register to change the disease status 
of Patagonia South to FMD-free.108  During the ensuing 60-da y period, APHIS received 
comments on the proposed rule  from interested parties.  
2007 SENASA redefined its regional units by issuing Resolutions 225/2006, 
335/2007, and 362/2007, and created a Regional Operative Unit (Unidad Regional Operative) (ROU) within the Central Unit (Vice-presidential Unit) to coordinate activities of the 14 Regional Operative Offices.
109  
22 February 2007 On 22 February 2007, after completing its evaluation, the OIE Ad Hoc Group submitted 
its recommendations to the Scientific Commission concerning the reinstatement of Argentina's disease-free with vaccination status and the enlargement of Argentina's FMD-free without vaccination area.
110 
22 May 2007 The OIE reinstated the FMD-free with vaccination status of Northern Argentina and 
extended the zone recognized as FMD-free without vaccination to include Patagonia 
North B.111   
22 January 2008 The United States Cattlemen's Association, the National Farmers Union, and American 
Agri-Women sent a letter to the House Committee on Agriculture with regard to the 
2007 proposed rule for Patagonia South, in which they called for further discussion on 
the matter before APHIS finalize the process.112 
                                               
100 OIE, Final Report, 74th General Session (2006), (Exhibit USA-55), pp. 45, 144.  
101 Argentina's first written submission, para. 117; Resolución SENASA 35/2006, (Exhibit ARG-5).  
102 APHIS' letter of 10 February 2006, (Exhibit ARG-38). 
103 OIE, Final Report, 74th General Session (2006), (Exhibit USA-55), pp. 45, 144.  
104 OIE World Assembly, Resolution XXVI, Recognition of the Foot and Mouth Disease Status of Member 
Countries , 74th General Session (21-26 May 2006), (Exhibit ARG-102). 
105 APHIS' letter of 27 June 2006, (Exhibit USA-94). 
106 SENASA's letter of 26 July  2006, (Exhibit ARG-97). 
107 SENASA's letter of 19 July 2010, No te No. 150/2010, (E xhibit ARG-46). 
108 2007 Proposed Rule on Patagonia South, (Exhibit ARG-56/USA-104). 
109 2014 Risk Analysis for Patagonia, (Exhibit USA-133), p. 14. 
110 Report of the Meeting of the OIE Scientific Commission for An imal Diseases (February 2007), 
(Exhibit USA-57). 
111 OIE Resolution XXI of 2007, (Exhibit ARG-10); OIE World Assembly, 75th General Session, Final 
Report (20-25 May 2007), (USA-105). 
112 Letter dated 22 January 2008 from various legislators of the Agriculture Commission of the House of 
Representatives, requesting a hearin g 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), (Exhibit ARG-39). WT/DS447/R 
 
- 233 - 
 
  Date Event 
7 March 2008 The Embassy of Argentina in Washington sent a letter to US Senator Jon Tester 
expressing the view that the Proposed Ru le recognizing Patagonia South as FMD-free 
should be finalized so that commercial relations between the region of Argentina and 
the United States could be normalized.113 
11 March 2008 SENASA introduced Resolution 148/2008 to authorize transport of 
FMD-susceptible animals into Patagonia South from Patagonia North B under additional traceability requirements, in connection with EU regulations recognizing Patagonia South, but not yet Patagonia North B, as FMD-free without vaccination.
114  
14 March 2008 Several US Senators urged the Administration not to adopt the final rule for the 
recognition of Patagonia South as FMD-free until the rule has been reviewed by the 
Office of Management and Budget.115 
20 March 2008 The Embassy of Argentina in Washington sent letter to US Senator Max Baucus 
expressing the view that the Proposed Ru le recognizing Patagonia South as FMD-free 
should be finalized so that the commercial relations between the region of Argentina 
and the United States could be normalized.116 
21 July 2008 Argentina submitted communication G/SPS/GEN/868 to the SPS Committee concerning 
its FMD situation.117 
15 October 2008 APHIS contacted SENASA with a view to fixi ng the agenda for a site visit by APHIS, 
aimed at updating the assessme nt of the risk for Patagonia South in order to respond 
to the comments received in  connection with the 2007 Pr oposed Rule for Patagonia 
South.118 
22 October 2008 SENASA sent a letter to APHIS expressing displeasure with the duration of FMD 
assessment process and noting that, because the situation in Patagonia South had not 
changed, SENASA did not consider that there were sufficient grounds to accept APHIS' 
proposed visit schedule for 15-18 December 2008.119 
11 November 2008 SENASA sent a letter to APHIS reiterating its statements of 22 October 2008.120  
16 December 2008 SENASA introduced Resolution 1282/2008 as a consequence of the EU's 
recognition of Patagonia North B as FMD-free without vaccination. The resolution relaxed the movement of FM D-susceptible animals from Patagonia 
North B into Patagonia South for any purpose subject to strengthened measures on transport and traceability. The resolution did not modify the pre-existing requirements for entry of FMD- susceptible animals into the Patagonia 
region as a whole from FMD-free zones with vaccination.
121  
17 December 2008 SENASA also granted approval for APHIS to visit Patagonia South in February 2009.122  
In granting the site visit request, SENASA also requested that APHIS extend the 
mission to cover Patagonia North B because the zone was recognized by the OIE as a 
region free of FMD where vaccination is not practiced.123 For this purpose, SENASA 
updated the information concerning Patagonia with APHIS, including the data on 
Patagonia North B that had led to the international recognition of the zone as FMD-free 
without vaccination.124   
                                               
113 Letter from Minister José Pérez Gabilondo to Sena tor Tester in response to his concern over the 
access of beef from Argentina (7 March 2008), (Exhibit ARG-41). 
114 Resolución SENASA 148/2008, (Exhibit USA-62). 
115 Letter from Senator Baucus et al. to Edward Scha fer, Secretary, US Depart ment of Agriculture and 
Jim Nussle, Director, Office of Mana gement and Budget regarding propos ed USDA rule on Patagonia South 
(14 March 2008), (Exhibit ARG-40). 
116 Letter from Ambassador Héctor Timerman to Sena tor Baucus in response to his 14 March 2008 letter 
(20 March 2008), (Exhibit ARG-42). 
117 Communication by Argentina to the Committee on Sanitary and Phytosanitary Measures: Foot And 
Mouth Disease Situation , G/SPS/GEN/868 (21 July 2008), (Exhibit ARG-98). 
118 APHIS' letter of 15 October 2008, (Exhibit USA-106). 
119 SENASA's facsimile of 22 Oc tober 2008, (Exh ibit USA-107). 
120 SENASA's facsimile of 11 Nove mber 2008, (Exhibit USA-108).  
121 Resolución SENASA 1282/2008, (Exhibit USA-109). 
122 SENASA's letter of 17 December  2008, (Exhibit ARG-59/USA-111). 
123 SENASA's letter of 17 December 2008, (Exhib it ARG-59/USA-111); SENASA's letter of 30 
January 2009, (Exhibit ARG-60/USA-112). 
124 SENASA's letter of 17 December 2008, (Exhib it ARG-59/USA-111); SENASA's letter of 30 
January 2009, (Exhibit ARG-60/USA-112). WT/DS447/R  
 
- 234 - 
 
  Date Event 
23-26 February 2009 APHIS conducted a site visit to Patagonia,  including Patagonia South and Patagonia 
North B.125  
26 February 2009 The US Congress passed the 2009 Omnibus Appropriations Act .126   
27 April 2009 APHIS sent SENASA a letter stating that no  additional information was currently 
required to proceed with APHIS' rulemaking.127 
30 September 2009 The 2009 Omnibus Appropriations Act  expired. 
19 July 2010 SENASA sent APHIS a letter detailing the information exchange with respect to 
Argentina's request for auth orization to import fresh (chilled or frozen) beef, 
highlighting its concern at APHIS not be ing able to reopen access to beef from 
Argentine territory located North of río Negr o, and asking that the outcome foreseen 
for Argentina's request be eluc idated in a timely fashion.128 
19 July 2010 SENASA sent APHIS a letter detailing the information exchange with regard to the 
recognition of Patagonia as FMD-free, highlighti ng its concerns over the fact that all the 
technical stages had been concluded on a scientific basis, and stating that only 
remained to be completed the administrative  procedures to secure the recognition of 
Patagonia.129 
13 September 2010 APHIS responded to SENASA's 19 July 2010 letter with respect to Argentina's 
application for the recognition of Patagonia as FMD-free, stating that APHIS "had made 
significant progress towards recognizing the FMD-free status of southern Patagonia". 
APHIS further noted that because it needs to be thorough and transparent in its 
deliberations, the rule-makin g process could take time.130  
24 September 2010 APHIS responded to SENASA's letter of 19 July 2010 stating that APHIS was "currently 
drafting a proposed rule that would allow the importation of fresh , chilled, or frozen 
Argentine beef under certain conditions".131 
30 June 2011 The United States stated before th e SPS Committee that APHIS had "completed the 
risk analysis regarding the region north of the 42nd parallel and would subsequently 
draft a proposal to allow the importation of beef under certain conditions".132 
19 October 2011 The United States reiterated before the SPS Committee that APHIS had "completed the 
assessment and was drafting a proposal to allow the importation of beef under certain 
conditions. When the assessment and rules were completed in the near future, the 
United States would be able to prov ide market access for Argentine beef".133 
10 July 2012 Argentina raised the same STC at the 53rd Meeting of the SPS Committee.134 
30 August 2012 Argentina requested consultations with the United States at the WTO.135 
28 November 2012 The United States and Argentina met in Washington DC in the framework of the 
Consultations being held pursua nt to Article 4 of the DSU.136   
6 December 2012 Argentina requested the establishment of a panel.137 
17 December 2012 The United States did not acce pt the request for establishment of a panel.138 
28 January 2013 The DSB established the Panel with standard terms of reference.139 
                                               
125 SENASA's letter of 30 January 2009, (Exhibit USA-112).  
126 H.R. Res. 1226, 111th Cong. (2009); S. Res. 337, 111th Cong (2009), (Exhibit ARG-44).  
127 APHIS' letter of 27 April 2009, (Exhibit ARG-79). 
128 SENASA's letter of 19 July 2010, No te No. 150/2010, (E xhibit ARG-46). 
129 SENASA's letter of 19 July 2010, Note No. 149/2010, (Exhib it ARG-61/USA-56). 
130 APHIS' letter of 13 September 2010, (Exhibit ARG-62). 
131 APHIS' letter of 24 September 2010, (Exhibit ARG-47). 
132 G/SPS/R/63, (Exhibit ARG-22), paras. 17-18.  
133 G/SPS/R/64, (Exhibit ARG-48), paras. 96-97. 
134 Committee on Sanitary an d Phytosanitary Measures, Summary of the Meeting of 10-11 July 2012 , 
Note by the Secretariat, G/SPS/R/67 (11 September 2012), (Exhibit ARG-23), para. 43. 
135 Argentina's request for consultations, WT/DS447/1. 
136 APHIS' letter of 13 March 2013, (Exhibit USA-96). 
137 Argentina's request for the establishment of a panel, WT/DS447/2. 
138 Argentina's first written submission, para. 20. 
139 Argentina's first written submission, para. 21. WT/DS447/R 
 
- 235 - 
 
  Date Event 
13 March 2013 APHIS wrote to SENASA summarizing the issu es discussed in the Consultations on 
28 November 2012 between Argentina and United States officials, including APHIS's 
desire to conduct a new site visit to Northern Argentina and Patagonia. APHIS formally 
requested permission from SENASA to conduct the site visit in order to progress with 
the review of Argentina's request.140 
3 July 2013 SENASA agreed to the visit proposed by APHIS on 13 March 2013, but stated that the 
sanitary situation in Argentina had not changed.141 
15 July 2013 APHIS replied to SENASA's 3 July 2013 lette r stating that it was ready to schedule the 
agreed visit to Argentina as soon as possible. APHIS also stated its understanding that Argentina preferred that the site visit occur during the last week of October or the first week of November 2013.
142   
8 August 2013 The Panel was composed by the Director-General. 
1st week of 
November 2013 APHIS visited Argentina to conduct the site review with regard to the approval of 
imports of Argentine fresh (chilled or frozen) beef under certain conditions.143 
23 January 2014 APHIS published a Proposed Ru le for recognition of the Pa tagonia region (comprising 
both Patagonia South and Patagonia North B) as FMD-free, pursuant to an updated risk 
assessment completed in January 2014.144 
28-29 January 2014 The Panel held the first substantive meeting with the parties. 
29 August 2014 APHIS published a risk assessment for Nort hern Argentina, dated April 2014, stating 
that the risk of introduction of FMD stemmi ng from imports of fresh  (chilled or frozen) 
beef from the region was "low",145 as well as a Proposed Rule  to allow imports of such 
product under the same protocols as those a pplied to fresh (chilled or frozen) beef 
from Uruguay. 146 
1st week of 
September 2014 The Panel held the meeting with the part ies and the experts on 2 September 2014 and 
the second substantive meeting with the parties on 4-5 September 2014. 
28 October 2014 APHIS' Final Rule recognizing Patagonia as FMD-free within the meaning of 
9 CFR 94.1(a) entered into force. 
 
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140 APHIS' letter of 13 March 2013, (Exhibit USA-96). 
141 SENASA's letter of 13 July  2013, (Exhibit ARG-99). 
142 APHIS' letter of 15 July 2013, (Exhibit USA-97). 
143 United States' first written submission, para. 162. 
144 2014 Notice of Availability of Risk Analysis for Patagonia, (Exhibit USA-132); 2014 Risk Analysis for 
Patagonia (Exhibit USA-133). 
145 2014 Risk Analysis for Northern  Argentina, (Exhibit USA-169). 
146 2014 Proposed Rule on Northern Argentina, (Exhibit USA-168).