UNITED STATES – CERTAIN MEASURES AFFECTING IMPORTS OF POULTRY FROM CHINA
Document: Request for the Establishment of a Panel by China
Date: 30 June 2009
Document codes: WT/DS392/2
Complainant: China
Respondent: U.S.
Third parties: Brazil, EU, Guatemala, South Korea, Taiwan, Turkey
Dispute stage: Panel
Agreements cited: Art. I:1, XI:1  GATT 1994Art. 4.2  AgricultureArt. 2.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 8  Sanitary and Phytosanitary Measures (SPS)

UNITED STATES – CERTAIN MEASURES AFFECTING IMPORTS
OF POULTRY FROM CHINA

Request for the Establishment of a Panel by China

 The following communication, dated 23 June 2009, from the delegation of China to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes
("DSU"), Article XXII of the General Agreement on Tariffs and Trade ("GATT 1994"), Article 19 of
the Agreement on Agriculture (" Agriculture Agreement "), and Article 11 of the Agreement on the
Application of Sanitary and Phytosanitary Measures ("SPS Agreement "), with regard to certain
measures taken by the US affecting the import from the People's Republic of China ("China") of
poultry products.
1
2. Consultations were held on 15 May 2009, pursuant to each of the above-referenced provisions
and agreements, with a view to reaching a mutually satisfactory solution. These consultations failed
to settle the dispute.
3. Accordingly, China hereby requests that a pane l be established pursuant to Article 6 of the
DSU; Article XXIII:2 of the GATT 1994; Article 19 of the Agriculture Agreement; and Article 11 of
the SPS Agreement.
4. China challenges certain related measures that prevent the importation of poultry products
from China into the United States. First, various US laws, including, e.g., Section 727 of Division A
of the Omnibus Appropriations Act of 2009 ("Section 727") (signed into law as Public Law 111-8), as
such, prohibit the expenditure of any US Governme nt funds necessary to allow for the importation of
poultry products from China. Second, there is an ongoing US moratorium in the form of a suspension
of the (a) consideration of applications for th e approval of, (b) granting of approval of, and
(c) implementation of approvals of, the import of poultry products from China. This moratorium
results in a ban on the import of poultry produc ts into the US from China. These measures are
described in greater detail below.
5. The first set of measures challenged by Ch ina includes Section 727, any amendments or
replacement measures, any subsequent closely-re lated measures, and any future closely-related

1 WT/DS392/1. Pursuant to an exchange of le tters between the United States and China, on
27-28 April 2009, and prior to actual consultations, China confirmed that its request for consultations had been
made pursuant to all four of the agreements specified in the consultation request, i.e., the DSU, the GATT 1994,
the Agriculture Agreement, and the SPS Agreement.

measures.
2 Section 727 currently prohibits the US Department of Agriculture ("USDA") from taking
action, including expending funds, to: (1) establi sh or implement measures allowing for the
importation from China of poultry products, including those that the USDA has already determined
are eligible to be so imported under existing US measures, and (2) establish or implement measures
expanding the scope of poultry pr oducts that may be imported from China. The necessary
consequence of Section 727 (like its predecessor
3) is to compel and sustain a prohibition on the ability
of USDA to take those actions that are required by US law and regulations before the US can permit
the importation of poultry products from China. This results in a ban on the import of poultry
products from China into the US. This is inconsistent with the United States' WTO obligations.
6. Second, since at least December 2007, the US has imposed a moratorium in the form of a
suspension of (a) consideration of applications for the approval of, (b) granting of approval of, and (c)
implementation of approvals of, th e import of poultry products from China under the US system for
regulating the import of poultry products. This system includes the Poultry Products Inspection Act,
as amended (21 U.S.C. §§ 451-471) ("PPIA"), and the related regulations of the USDA's Food Safety
and Inspection Service (9 CFR Parts 300-592) ("FSI S Regulations"). This moratorium was initiated
by the predecessor to Section 727
4 and continued by Section 727, as it will be by any amendments or
replacement measures, any subsequent closely-re lated measures, and any future closely-related
measures. The moratorium is also effectuated by the deliberate failure of the US to follow and
implement the PPIA and the FSIS Regulations (e.g., for inspections, auditing, and evaluation) related
to the eligibility of countries and entities to import p oultry products, as applied to China. By contrast,
the US follows and implements such laws, regulations, and procedures for other WTO Members. The
effect of this moratorium has been to ban the im port of poultry products from China into the US. The
moratorium and resulting ban on the import of poultry products from China into the US are
inconsistent with the United States' WTO obligations.
7. The existence and operation of Section 727, an y amendments or replacement measures, any
subsequent closely-related measures, and any future closely-related measures,
5 as well as the
moratorium and resulting ban, on the importation of poultry products from China is illustrated by the
following example. Part 381 of Title 9 of the US Code of Federal Regulations ("9 CFR"), including
Section 381.196, identifies countries eligible to import poultry products into the United States.
Following a detailed review by the USDA of Chin a's poultry inspection system, including on-site
inspections in China, the United States determined in early 2006 that China is eligible to import
certain poultry products into the United States.
6 However, the USDA has not yet taken the necessary
action to allow for such importation, pursuant to th is determination of eligibility. Nor has the USDA
conducted the periodic reviews of China that it ge nerally relies upon when determining whether to
maintain the eligibility of a country to import poultry products into the US. Pu rsuant to Section 727,
any amendments or replacement measures, any sub sequent closely-related measures, and any future

2 China understands that Section 727 is included in an annual appropriations measure, and is closely-
related, in terms of nature and effects, to similar provisions included in previous appropriations measures,
including but not limited to Section 733 of Division A of the Omnibus Appropriations Act of 2008, P.L. 110-
161 ("Section 733"). Similarly, Section 727 would be closely-related to, and this request covers, any
subsequent, including future, measures that have the same substance, essence, and/or legal implications for
imports of poultry products from China, as the substance, essence, and/or legal implications for imports of
poultry products from China, of Section 727, as set out in paragraph 4 of this request. One such measure
appears to be included in an approp riations bill currently pending before Congress that would amend or replace
Section 727, namely the pending "Bill making appropriations for Agriculture, Rural Development, Food and
Drug Administration, and Related Agencies programs for the fiscal year ending September 30, 2010, and for
other purposes," including Section 723 of the 18 June 2009 Appropriations Committee Markup thereof.
3 See footnote 2.
4 See footnote 2.
5 See footnote 2.
6 71 Fed. Reg. 20867 (24 April 2006).

closely-related measures,7 as well as the moratorium, the USDA is prohibited from taking action to
establish or implement measures allowing for the importa tion into the US of poultry products that the
US has already determined are eligible for importa tion from China, pursuant to the explicit terms of 9
CFR § 381.196. 9 CFR § 381.196 is, therefore, one of several US regulations that, by virtue of
Section 727,8 the moratorium, and the resulting ban, cannot be implemented with respect to products
imported from China.
8. Moreover, Section 727, any amendments or re placement measures, any subsequent closely-
related measures, and any future closely-related measures,9 as well as the moratorium, prohibit USDA
from taking action to expand the class of poultry produc ts that could be eligible for import into the
United States from China. Expansion of eligibility would require the establishment and/or
implementation of measures that the USDA is prohi bited from establishing or implementing because
of these measures.
9. The US moratorium and resulting ban on the import of poultry products from China, as well
as Section 727, any amendments or replacement m easures, any subsequent closely-related measures,
and any future closely-related measures, 10 are in breach of its obligations under the GATT 1994 and
the Agriculture Agreement, including the following provisions thereof: Articles I:1 and XI:1 of the
GATT 1994; and, Article 4.2 of the Agriculture Agreement.
10. Section 727, any amendments or replacement measures, any subsequent closely-related
measures, and any future closely-related measures, 11 as well as the US moratorium, institute and
maintain a quantitative restriction and prohibition, contrary to Article XI:1 of the GATT 1994 and
Article 4.2 of the Agriculture Agreement. Moreover, by imposing these restrictions and prohibitions
with respect to imports from China, but not similarly restricting and prohibiting the import from other
Members of like products, the challenged measures re sult in the US failing to accord immediately and
unconditionally to China an advantage, favour, privil ege or immunity granted to other Members with
respect to rules and formalities in connection with importation in violation of Article I:1 of the
GATT 1994.
11. In addition, to the extent that some or all of the US measures at issue restricting imports of
poultry products from China constitute sanitary and phytosanitary measures within the meaning of the
SPS Agreement , the measures are inconsistent w ith the US obligations under the SPS Agreement ,
including Articles 2.1-2.3, 3.1, 3.3, 5.1-5.7, and 8 thereof.
12. To the extent that some or all of the US measures at issue constitute sanitary and
phytosanitary measures within the meaning of the SPS Agreement, the US measures violate Articles
2.1, 2.2, 5.1-5.4, and 5.6 of the SPS Agreement, because any SPS measure is not based on a proper
assessment of the particular risks presented and is not supported by sufficient scientific evidence.
Also, any such measure, to the extent not applied with respect to similarly situated imports from other
Members, violates Articles 2.3 and 5.5 of the SPS Agreement. Moreover, any SPS measure fails to
observe the provisions of Annex C of the SPS Agreement with respect to the operation of control,
inspection, and approval procedures, and th erefore would violate Article 8 of the SPS Agreement.
Additionally, any such US measure is not ba sed on international standards, guidelines, or
recommendations, or otherwise, consistently with Articles 3.1 and 3.3 of the SPS Agreement. Finally,
any such US measure is not justified by Article 5.7 of the SPS Agreement, if applicable.

7 See footnote 2.
8 See footnote 2.
9 See footnote 2.
10 See footnote 2.
11 See footnote 2.

13. China requests that the panel be established w ith the standard terms of reference, in
accordance with Article 7 of the DSU.
14. China asks that this request fo r the establishment of a panel be placed in the agenda for the
next meeting of the Dispute Settlement Body, which is scheduled to take place on 20 July 2009.