UNITED STATES – MEASURES AFFECTING THE IMPORTATION OF ANIMALS, MEAT AND OTHER ANIMAL PRODUCTS FROM ARGENTINA REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 24 July 2015
Document codes: WT/DS447/R
Complainant: Argentina
Respondent: U.S.
Third parties: Australia, Brazil, China, EU, India, South Korea
Dispute stage: Panel
Agreements cited: Art. 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 8, Annex C, 10.1  Sanitary and Phytosanitary Measures (SPS)Art. I:1, XI:1  GATT 1994Art. XVI:4, XXIII:1  Agreement Establishing the World Trade Organization

UNITED STATES – MEASURES AFFECTING THE IMPORTATION
OF ANIMALS, MEAT AND OTHER ANIMAL PRODUCTS
FROM ARGENTINA
REPORT OF THE PANEL

ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures on consultations with experts and the World
Organisation for Animal Health (OIE)
A-7
ANNEX B
ARGUMENTS OF THE PARTIES
ARGENTINA
Contents Page
Annex B-1 First part of the integrated 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

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, , adopted 17 December 2010,
DSR 2010:V, p. 2175
Australia – Apples Panel Report, Australia – Measures Affecting the Importation of Apples
from New Zealand, , adopted 17 December 2010, as modified
by Appellate Body Report , DSR 2010:VI, p. 2371
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of
Salmon, , adopted 6 November 1998, DSR 1998:VIII,
p. 3327
Australia – Salmon Panel Report, Australia – Measures Affecting Importation of Salmon,
WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by
Appellate Body Report WT/DS18/AB/R, DSR 1998:VIII, p. 3407
Australia – Salmon
(Article 21.5 – Canada)
Panel Report, Australia – Measures Affecting Importation of Salmon –
Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted
20 March 2000, DSR 2000:IV, p. 2031
Brazil – Aircraft Panel Report, Brazil – Export Financing Programme for Aircraft,
WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body
Report WT/DS46/AB/R, DSR 1999:III, p. 1221
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded
Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV,
p. 1527
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres,
WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body
Report WT/DS332/AB/R, DSR 2007:V, p. 1649
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian
Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1377
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the
Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted
19 June 2000, DSR 2000:VI, p. 2985
Canada – Continued Suspension Appellate Body Report, Canada – Continued Suspension of Obligations in
the EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November
2008, DSR 2008:XIV, p. 5373
Canada – Continued Suspension Panel Report, Canada – Continued Suspension of Obligations in the EC –
Hormones Dispute, WT/DS321/R, adopted 14 November 2008, as
modified by Appellate Body Report WT/DS321/AB/R, DSR 2008:XV,
p. 5757
Canada – Dairy
(Article 21.5 – New Zealand and
US II)
Panel Report, Canada – Measures Affecting the Importation of Milk and
the Exportation of Dairy Products – Second Recourse to Article 21.5 of the
DSU by New Zealand and the United States, WT/DS103/RW2,
WT/DS113/RW2, adopted 17 January 2003, as modified by Appellate Body
Report WT/DS103/AB/RW2, WT/DS113/AB/RW2, DSR 2003:I, p. 255
Canada – Pharmaceutical Patents
(Article 21.3(c))
Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical
Products – Arbitration under Article 21.3(c) of the DSU, WT/DS114/13,
18 August 2000, DSR 2002:I, p. 3
Canada – Renewable Energy /
Canada – Feed-in Tariff Program
Appellate Body Reports, Canada – Certain Measures Affecting the
Renewable Energy Generation Sector / Canada – Measures Relating to the
Feed-in Tariff Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted
24 May 2013
Canada – Wheat Exports and
Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat
and Treatment of Imported Grain, WT/DS276/AB/R, adopted
27 September 2004, DSR 2004:VI, p. 2739

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 Distribution
Services for Certain Publications and Audiovisual Entertainment Products,
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by
Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295
Dominican Republic – Import and
Sale of Cigarettes
Appellate Body Report, Dominican Republic – Measures Affecting the
Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted
19 May 2005, DSR 2005:XV, p. 7367
EC – Approval and Marketing of
Biotech Products
Panel Reports, European Communities – Measures Affecting the Approval
and Marketing of Biotech Products, WT/DS291/R / WT/DS292/R /
WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006,
DSR 2006:III, p. 847
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting
Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5
April 2001, DSR 2001:VII, p. 3243
EC – Bananas III Appellate Body Report, European Communities – Regime for the
Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted
25 September 1997, DSR 1997:II, p. 591
EC – Bananas III (Ecuador) Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas, Complaint by Ecuador, WT/DS27/R/ECU,
adopted 25 September 1997, as modified by Appellate Body Report
WT/DS27/AB/R, DSR 1997:III, p. 1085
EC – Bananas III (Guatemala and
Honduras)
Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas, Complaint by Guatemala and Honduras,
WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as
modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 695
EC – Bananas III (Mexico) Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas, Complaint by Mexico, WT/DS27/R/MEX,
adopted 25 September 1997, as modified by Appellate Body Report
WT/DS27/AB/R, DSR 1997:II, p. 803
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, Sale
and Distribution of Bananas, Complaint by the United States,
WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate
Body Report WT/DS27/AB/R, DSR 1997:II, p. 943
EC – Chicken Cuts Appellate Body Report, European Communities – Customs Classification of
Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R,
adopted 27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998,
DSR 1998:I, p. 135

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 its member States – Tariff
Treatment of Certain Information Technology Products, WT/DS375/R /
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III,
p. 933
EC – Sardines Appellate Body Report, European Communities – Trade Description of
Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p.
3359
EC – Sardines Panel Report, European Communities – Trade Description of Sardines,
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by
Appellate Body Report WT/DS231/AB/R, DSR 2002:VIII, p. 3451
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014
EC – Seal Products Panel Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/R / WT/DS401/R /
and Add.1, adopted 18 June 2014, as modified by Appellate Body Reports
WT/DS400/AB/R / WT/DS401/AB/R
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs
Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX,
p. 3791
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the
Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R,
adopted 20 April 2004, DSR 2004:III, p. 925
EC and certain member States –
Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States
– Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R,
adopted 1 June 2011, DSR 2011:I, p. 7
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation
Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted
25 November 1998, DSR 1998:IX, p. 3767
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000,
DSR 2000:XI, p. 5295
India – Agricultural Products Panel Report, India – Measures Concerning the Importation of Certain
Agricultural Products, WT/DS430/R and Add.1, circulated to WTO
Members 14 October 2014 [adoption/appeal pending]
India – Autos Panel Report, India – Measures Affecting the Automotive Sector,
WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002,
DSR 2002:V, p. 1827
India – Quantitative Restrictions Appellate Body Report, India – Quantitative Restrictions on Imports of
Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted
22 September 1999, DSR 1999:IV, p. 1763
Indonesia – Autos
(Article 21.3(c))
Award of the Arbitrator, Indonesia – Certain Measures Affecting the
Automobile Industry – Arbitration under Article 21.3(c) of the DSU,
WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12, 7 December
1998, DSR 1998:IX, p. 4029
Japan – Agricultural Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products,
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277

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 the Importation of Apples –
Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW,
adopted 20 July 2005, DSR 2005:XVI, p. 7911
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports
of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, p. 3
Korea – Various Measures on
Beef
Appellate Body Report, Korea – Measures Affecting Imports of Fresh,
Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10
January 2001, DSR 2001:I, p. 5
Mexico – Taxes on Soft Drinks Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other
Beverages, WT/DS308/AB/R, adopted 24 March 2006, DSR 2006:I, p. 3
Philippines – Distilled Spirits Appellate Body Reports, Philippines – Taxes on Distilled Spirits,
WT/DS396/AB/R / WT/DS403/AB/R, adopted 20 January 2012, DSR
2012:VIII, p. 4163
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland,
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701
Turkey – Textiles Panel Report, Turkey – Restrictions on Imports of Textile and Clothing
Products, WT/DS34/R, adopted 19 November 1999, as modified by
Appellate Body Report WT/DS34/AB/R, DSR 1999:VI, p. 2363
US – Anti-Dumping and
Countervailing Duties (China)
Appellate Body Report, United States – Definitive Anti-Dumping and
Countervailing Duties on Certain Products from China, WT/DS379/AB/R,
adopted 25 March 2011, DSR 2011:V, p. 2869
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
p. 3779
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale
of Clove Cigarettes, WT/DS406/R, adopted 24 April 2012, as modified by
Appellate Body Report WT/DS406/AB/R
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of
Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14
November 2008, DSR 2008:X, p. 3507
US – Continued Suspension Panel Report, United States – Continued Suspension of Obligations in the
EC – Hormones Dispute, WT/DS320/R, adopted 14 November 2008, as
modified by Appellate Body Report WT/DS320/AB/R, DSR 2008:XI,
p. 3891
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and
Application of Zeroing Methodology, WT/DS350/AB/R, adopted
19 February 2009, DSR 2009:III, p. 1291
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling
(COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted
23 July 2012, DSR 2012:V, p. 2449

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 Carbon Steel Flat Products from Japan,
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3
US – Cotton Yarn Appellate Body Report, United States – Transitional Safeguard Measure on
Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted 5
November 2001, DSR 2001:XII, p. 6027
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I,
p. 3
US – Hot-Rolled Steel
(Article 21.3(c))
Award of the Arbitrator, United States – Anti-Dumping Measures on
Certain Hot-Rolled Steel Products from Japan – Arbitration under
Article 21.3(c) of the DSU, WT/DS184/13, 19 February 2002,
DSR 2002:IV, p. 1389
US – Large Civil Aircraft
(2nd complaint)
Appellate Body Report, United States – Measures Affecting Trade in Large
Civil Aircraft (Second Complaint), WT/DS353/AB/R, adopted
23 March 2012, DSR 2012:I, p. 7
US – Oil Country Tubular Goods
Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of
Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V,
p. 1909
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain
Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998,
DSR 1998:VII, p. 2755
US – Shrimp
(Article 21.5 – Malaysia)
Appellate Body Report, United States – Import Prohibition of Certain
Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by
Malaysia, WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII,
p. 6481
US – Shrimp (Thailand) /
US – Customs Bond Directive
Appellate Body Report, United States – Measures Relating to Shrimp from
Thailand / United States – Customs Bond Directive for Merchandise
Subject to Anti-Dumping/Countervailing Duties, WT/DS343/AB/R /
WT/DS345/AB/R, adopted 1 August 2008, DSR 2008:VII, p. 2385 /
DSR 2008:VIII, p. 2773
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty
Determination with Respect to Certain Softwood Lumber from Canada,
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, p. 571
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the
Importation, Marketing and Sale of Tuna and Tuna Products,
WT/DS381/AB/R, adopted 13 June 2012
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of
Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted
23 May 1997, and Corr.1, DSR 1997:I, p. 323
US – Zeroing (EC)
(Article 21.5 – EC)
Appellate Body Report, United States – Laws, Regulations and
Methodology for Calculating Dumping Margins ("Zeroing") – Recourse to
Article 21.5 of the DSU by the European Communities, WT/DS294/AB/RW
and Corr.1, adopted 11 June 2009, DSR 2009:VII, p. 2911
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

EXHIBITS REFERRED TO IN THIS REPORT
Panel Exhibit Title
ARG-1 Commission Regulation (EU) N° 206/2010 of 12 March, 2010, laying down lists of third
countries, territories or parts thereof authorized for the introduction into the European Union
of certain animals and fresh meat and the veterinary certification requirements, 2010 O.J.
(L 073) 1-121
ARG-4
USA-37
Plan de Erradicación de la Fiebre Aftosa: Resolución SENASA 5/01
ARG-5 Resolución SENASA Nº 35/06
ARG-6 Resolución SENASA Nº 36/06
ARG-7 USDA/APHIS, Veterinary Services, APHIS Evaluation of the Status of the Brazilian State of
Santa Catarina Regarding Foot-and-Mouth Disease, Classical Swine Fever, Swine Vesicular
Disease, and African Swine Fever (revised 16 August 2010)
ARG-8 Importation of Beef from Uruguay , 68 Fed. Reg. 31940 (USDA/APHIS May 29, 2003) (Final
Rule)
ARG-9 USDA, Veterinary Services, National Center for Import and Export 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 Argentina, South of the 42 Parallel (June 2005)
ARG-10 OIE World Assembly, Resolution XXI, Recognition of the Foot and Mouth Disease Status of
Member Countries, 75th General Session (20-25 May 2007)
ARG-12 OIE World Assembly, Resolution No. 14, Recognition of the Foot and Mouth Disease Status of
Members, 79th General Session (22-27 May 2011)
ARG-15 Importation of Animals and Animal Products , 62 Fed. Reg. 56000 (USDA/APHIS October 28,
1997) (Final Rule)
ARG-16 Information From Foreign Regions Applying for Recognition of Animal Health Status: Final
Rule, 77 Fed. Reg. 44107 (USDA/APHIS, 27 July 2012) (Final Rule)
ARG-18 Resolución SENASA Nº 351/06
ARG-21 Changes in the Disease Status of the Brazilian State of Santa Catarina with Regard to Certain
Ruminant and Swine Diseases, 75 Fed. Reg. 69851 (USDA/APHIS November 16, 2010) (Final
Rule)
ARG-22 Committee on Sanitary 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 Fresh or Frozen Beef from Argentina (4 December 2000)
ARG-29 Prohibition of Beef from Argentina, 66 Fed. Reg. 29897 (4 June 2001) (Interim Rule)
ARG-30 Prohibition of Beef from Argentina, 66 Fed. Reg. 63911 (11 December 2001) (Final Rule)
ARG-31 Agri-Food Health & 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)

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, SENASA (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)

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 disease associated with international trade in deboned beef, OIE ad
hoc Group on Trade in Animal Products (October 2009)
ARG-133 USDA/APHIS, Site Visit Report: Uruguay – Foot and Mouth Disease (September 2002)
ARG-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-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
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
presuntamente infectadas, o deficiencias en la cobertura vacuna
ARG-143 Resolución SENASA 754/2006. Créase la Clave Unica de Identificación Ganadera, que

Panel Exhibit Title
ARG-144 Resolución SENASA 563/2012. Identificación de las especies Bovino y Bubalino. Deróganse
Ganadería, Pesca y Alimentos
ARG-145 Resolución SENASA 15/2003. Créase el "Siste ma de Identificación de Ganado Bovino para
el "Registro de Establecimientos Rurales proveed ores de ganado para Faena de Exportación"
Engorde a Corral proveedores de bovinos 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
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
ARG-151 SENASA Circular No. 3307 (30 July 1997)
1991/2000
ARG-153 Resolución SENASA 33/2002. Apruébase la Gu ía de Procedimientos para Planes de
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 Recognition 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

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)

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 (USDA, APHIS) (22 October 2008)
USA-108 Facsimile from Oscar Astibia, SENASA, to Yvette Perez, USDA, APHIS (11 November 2008)
USA-109 Resolución SENASA 1282/2008
USA-132 Notice of Availability of Evaluations of the 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)

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 Directorate-General for Health and Consumers
SENASA Servicio Nacional de Salud Animal (National Animal Health Service)
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
SPS Committee Committee on Sanitary and Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
Terrestrial Code Terrestrial Animal Health Code
Terrestrial Manual Manual of Diagnostic 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

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.

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 areas of scientific and/or technical expertise the Panel
should seek expert advice; (iv) how many experts the Panel should consult in each area of
expertise; and (v) whether the Panel should consult experts individually or as part of an expert
review group as contemplated in Article 13 and Appendix 4 of the DSU.
8 The Panel also
encouraged the parties to reach agreement on any specific scientific experts to be consulted by the
Panel.
1.13. In their responses to the Panel questions on these matters, both the United States and
Argentina responded that they did not consider it necessary for the Panel to consult individual
experts. As for consulting relevant international organizations – the OIE – the United States stated
that it was unable to see how the OIE would be able to assist the Panel.
9 Argentina indicated that
it would not object to the Panel seeking advice from the OIE concerning its processes and
decisions.10 The parties did not reach agreement on any specific experts to be consulted by the
Panel. After considering the responses of the 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 written 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. Australia 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 paragraph 16(b) of the Working Procedures. 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. However, in other instances the parties and third parties did
not request an extension even though their filings were late. Although a short grace period was applied to the
various instances where filings were not received on time, the delays ranged from 30 minutes to several hours.
On 20 May 2014, the Panel informed the parties that as a result of these late 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 Procedures in Annex A-1, which provides that when
submissions are to be filed contemporaneously, each party shall file the documents only with the DS Registrar
and the DS Registrar will serve the documents on the other 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.

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 Working 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 provided the names of two experts who they viewed
as appropriate to assist the Panel. The Panel contacted the 11 individuals to determine their
availability and willingness to assist the Panel. The Panel forwarded to the parties for their
comments in accordance with paragraph 23 of the Working Procedures the names and curricula
vitae of the available experts. The parties commented on the proposed experts on 19 May 2014.
1.19. On 9 May 2014, the Panel sent to the OIE questions concerning the operation and
interpretation of the OIE's standards, guidelines and recommendations as embodied in the
Terrestrial Code, as well as any other relevant 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 health. 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,

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 Agriculture 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 counsellor with the European Union
delegation to the OECD, UNESCO and international organisations in Paris with particular responsibility for
following the European Union and its Agencies' relations with the OIE. Dr Andrew Cupit is Assistant Secretary,
Animal Biosecurity Branch, Animal Division, Department of Agriculture, Government of Australia. Dr Vitor
Salvador Picão Gonçalves is associate professor at the University 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 acts 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 compartments, risk assessments, FMD and CSF eradication and
control of endemic diseases.
14 Dr Gonçalves stated that due to important and unforeseen personal reasons he would be unavailable
to attend the meeting with the parties 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).

regard, the Panel asked the OIE to confirm a number of matters relating to any potential conflict of
interest arising from the individual's private professional activities in Argentina, and that it confirm
that the individual as an OIE employee was governed by the OIE's Rules of Conduct and would
also be guided by the WTO's Rules of Conduct 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 direct and indirect costs associated with eradication
of an outbreak, most countries that have eradicated the disease impose strict sanitary measures
on imports of animal products. Countries that are not FMD-free are usually limited in international
markets to sales to other markets that are also not FMD-free or, in some cases, to exports of
specific types of meat products (for example, processed meat). These restrictions thus create a

17 Communication from the United States to the Panel (1 September 2014).
18 See e.g. website of the World Organization for Animal Health (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).
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).

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 animal products from the Patagonia region
2.2.1.1 Title 9 of the Code of Federal Regulations, Part 94
2.6. The first measure at issue is Title 9 of the United States' Code of Federal Regulations, Part 94
(9 CFR 94)
21, which, in its application, effectively prohibits the importation of fresh (chilled or
frozen) beef from Northern Argentina and animals, meat and other animal products 22 from the
Patagonia region. 9 CFR 94 reads, in relevant part:
94.1 Regions where rinderpest or foot-and-mouth disease exists; importations
prohibited.
(a) APHIS considers rinderpest or foot-and-mouth disease to exist in all regions of
the world except those declared free of one or both of these diseases by APHIS.
(1) A list of regions that APHIS has declared free of … foot and mouth
disease are maintained on the APHIS Web site at:
http://www.aphis.usda.gov/import_export/animals/animal_disease
_status.shtml. …
(2) APHIS will add a region to the list of those it has declared free of
rinderpest or foot-and-mouth disease, or both after it conducts an
evaluation of the region in accordance with §92.2 and finds that the
disease, or diseases, are not present. In the case of a region
formerly on this list that is removed due to an outbreak, the region
may be returned to the list in accordance with the procedures for
reestablishment of a region's disease-free status in §92.4 of this
subchapter. APHIS will remove a region from the list of those it has
declared free of rinderpest or foot-and-mouth disease upon
determining that the disease exists in the region based on reports
APHIS receives of outbreaks of the disease from veterinary officials
of the exporting country, from 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 Spongiform 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.

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: Australia, Austria, The Bahamas, Barbados, Belgium,
Bermuda, the Brazilian State of Santa Catarina, British Honduras (Belize),
Canada, Channel Islands, Chile, Costa Rica, Czech Republic, Denmark,
Dominican Republic, El Salvador, Estonia, Fiji, Finland, France, Germany,
Greece, Greenland, Guatemala, Haiti, Honduras, Hungary, 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, Spain, 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).

subject to the prohibitions under 9 CFR 94.1(b). At the time of the Panel's establishment, only
Uruguay was listed under this category, and was permitted to export fresh (chilled or frozen) beef
to the United States under the protocols contained in 9 CFR 94.22.
24
2.8. As discussed below, Argentina also challenges the Interim and Final Rules that repealed
9 CFR 94.21 and had the effect of making imports from Argentina subject to the general
prohibition in 9 CFR 94.1(b).
2.2.1.2 APHIS' 2001 Interim and Final Rules amending 9 CFR 94
2.9. Argentina experienced multiple FMD outbreaks between July 2000 and January 2002.
In March 2001 Argentina suspended its exports of fresh (chilled or frozen) beef to the
United States. Subsequently, APHIS issued: (a) an Interim Rule published in the Federal Register
on 4 June 2001
25 and (b) a Final Rule published in the Federal Register on 11 December 2001. 26
The Panel refers to these Rules collectively as the "2001 Regulations". The effect of the Interim
Rule was to amend 9 CFR 94 to prohibit the importation of fresh (chilled or frozen) beef from
Argentina by removing 9 CFR 94.21 (which, as noted above, had allowed such importation). This
amendment was maintained without change in the Final Rule. Thus, as a result of the adoption of
the 2001 Regulations, the prohibitions under 9 CFR 94.1(b), which had applied prior to 1997, once
again became applicable to FMD-susceptible animals and animal products from Argentina.
27
2.10. From 2001 until the date of the 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).

(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 surveillance in the region—e.g., is it passive and/or
active; what is the quantity and quality of sampling and testing?
(10) Diagnostic laboratory capabilities;
(11) Policies and infrastructure for animal disease control in the region—i.e.,
emergency response capacity.31
2.13. After an application is filed, APHIS evaluates the likelihood of entry, establishment, or
spread of the disease. As part of the evaluation , APHIS requests the applicant country to provide
detailed scientific information as necessary, and typically conducts one or more visits to the region
covered by the regionalization request. Upon 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 authorization 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; APHIS, Veterinary Services, National Import Export Services, Risk Analysis: Foot-and-
Mouth Disease Risk from Importation of Fresh (Chilled or Frozen), Matured, Deboned Beef from Northern
Argentina into the United States (April 2014), (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).

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' terminology 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 SENASA (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 January 2009), (Exhibit ARG-60/USA-112).
42 The Panel drafted the chronology based on the submissions of the parties. Prior to the first
substantive meeting, the Panel circulated a draft version of the chronology, and asked 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 and asked the parties to provide any further comments.
See Panel question No. 78 following the first substantive meeting and the parties' responses thereto.

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 standards, guidelines, and recommendations
2.4.1 The OIE and its mandate
2.20. The OIE is an intergovernmental organization that was created through an
international agreement signed on 25 January 1924, as a response to the need to fight animal
diseases at a global level. In May 2003, the OIE changed its name from Office International des
Epizooties to World Organisation for Animal Health, but kept its historical acronym.
46 The OIE is
tasked with improving animal health worldwide. 47 One of its stated objectives is "sanitary safety"
for "international trade in animals and animal products".48 The OIE's activities in this field focus on
rules that OIE members "can use to protect themselves from the introduction of diseases and
pathogens, without setting up unjustified sanitary barriers".
49
2.21. As of October 2014, the OIE had 180 members 50 and their national delegates constitute a
World Assembly of Delegates. 51 Both Argentina and the United States are members, as are the
third parties to this dispute. In addition to its headquarters in Paris, the OIE has regional and sub-
regional offices on every continent.52

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, antelopes, 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/member-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).

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 structure of the Terrestrial Code
2.25. The aim of the Terrestrial Code is to set international "standards for the improvement of
terrestrial animal health and welfare and 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 (Terrestrial 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 parties have referred to different versions 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.

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/RINDERPEST-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.

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 Commission 70 with a document summarising their
findings and recommendations. 71 In turn, the Scientific Commission reviews the ad hoc expert
Group's document and issues a report listing the countries or zones that are proposed for official
recognition of a particular disease status for consideration of OIE members at the annual World
Assembly.
72 A 60-day "comment period" is provided and the comments expressed by
OIE members are considered by the Scientific Commission before finalizing the decision proposal.73
At any stage of the process, the Scientific Commission may ask the Director General to deploy a
mission to the applicant Member.
74 As the last step, the OIE World Assembly adopts a resolution
which officially recognizes the applicant country or zone as FMD-free where vaccination is or is not
practised.75 Members who have an official recognition must submit an updated dossier annually
and the decision on official recognition is re-evaluated.76
2.32. When a country or zone previously recognized as FMD-free where vaccination is or is not
practised experiences an FMD outbreak, its official disease status is suspended immediately. 77 In
such a case, the Member concerned may apply for recovery of the status pursuant to the
procedures set forth in Article 8.5.9 of the Terrestrial Code. The organ in charge of the recovery
procedure is the Scientific Commission, which "has the mandate, on request, to reinstate official
status" without "prior consultation with the World Assembly".
78 In order to reach its determination
on a recovery request, the Commission may call for a new evaluation by the ad hoc expert Group
or undertake the assessment itself.79
2.4.3 Relevant standards, guidelines or recommendations invoked by the parties
2.33. Argentina claims that the United States has acted inconsistently with Article 3.1 of the
SPS Agreement because it has not based its measures on the following provisions of the
OIE Terrestrial Code which it argues constitute relevant international standards, guidelines or
recommendations: (a) Chapter 8.5 (in particular Articles 8.5.4, 8.5.5, 8.5.22, 8.5.23, and 8.5.25);
(b) Chapters 4.1-4.4; and (c) Sections 1-5.
80

67 Article 1.6.4 of the Terrestrial Code. The information 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 scientific 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 evaluating Members' dossiers for disease recognition, the
Commission assists in identifying the most appropriate 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. The OIE explained that a list of those applications
that do not meet the requirements set forth in Chapter 8.5 of the Terrestrial 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.

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.

2.5.1.1 Northern Argentina
2.36. The OIE recognized the entire Argentine territory as FMD-free where vaccination is not
practised in 2000. 83 This FMD-status determination was suspended in May 2001 84 in light of
multiple FMD outbreaks in the Argentine territory between July 2000 and April 2001. In July 2003,
the OIE recognized the Argentine territory located north of the Rio Negro (Northern Argentina) as
FMD-free where vaccination is practised. 85 In August 2003, the recognition was suspended as a
result of an FMD outbreak in the Province of Salta. 86 It was reinstated in 2005 87 and suspended
again in 2006 as a result of one further FMD outbreak in the Province of Corrientes. 88 Northern
Argentina's disease status of FMD-free where vaccination is practised was reinstated in 2007 89 and
has been renewed annually thereafter. Finally, in 2011 the OIE recognized the border protection
zone established along the Argentine border with Bolivia, Paraguay and Brazil as FMD-free where
vaccination is practised.
90
2.5.1.2 Patagonia
2.37. Patagonia South has not had an FMD outbreak since 1976, whereas Patagonia North B had
its last outbreak in 1994.
91 In 2002, the OIE recognized Patagonia South as FMD-free where
vaccination is not practised.92 In 2007, the same recognition was extended to Patagonia North B.93
2.5.2 United States
2.38. The United States had its last FMD outbreak in 1929. 94 The United States has been
FMD-free for over eighty years and does not vaccinate its cattle or other FMD-susceptible
species.
95 The United States is designated by the OIE as an area that is FMD-free where
vaccination is not practised.
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. Argentina argues that the measures at issue are SPS measures covered by Article 1.1 and
Annex A(1)(a).
3.2. Argentina requests the Panel to find that the application of the prohibitions contained in
9 CFR 94.1(b) and the 2001 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/Internationa_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.

 is inconsistent with the United States' obligations under Articles 1.1, 2.2, 2.3, 3.1, 3.3,
5.1, 5.2, 5.4, 5.6, and 10.1 of the SPS Agreement;
 is inconsistent with the United States' obligations under Articles I:1 and XI:1 of the
GATT 1994.
3.3. Argentina requests that, to the extent the Panel were to find that the application of the
prohibitions contained in 9 CFR 94.1(b) to importation of Argentine fresh (chilled or frozen) beef is
inconsistent with any of the provisions of the covered Agreements, it also find that the
2001 Regulations are, by implication, inconsistent with the same provisions because they bear an
"instrumental relationship" with the prohibitions under 9 CFR 94.1(b).
96
3.4. Argentina further requests that the Panel find that the application of the prohibitions
contained in 9 CFR 94 to importation of animals, meat and other animal products from the
Patagonia region:
 is inconsistent with the United States' obligations under Articles 1.1, 2.2, 2.3, 3.1, 3.3,
5.1, 5.2, 5.4, 5.6, 6.1, 6.2, and 10.1 of the SPS Agreement;
 is inconsistent with the United States' obligations under Articles I:1 and XI:1 of the
GATT 1994.
3.5. Argentina requests the Panel to find that the United States' application of the approval
procedure detailed in 9 CFR 92.2 to imports of fresh (chilled or frozen) beef from Argentina was
not undertaken and completed without undue delay and is thus inconsistent with the
United States' obligations under Article 8 in conjunction with Annex C(1)(a) of the SPS Agreement.
Argentina further requests the Panel to find that such an approval process is inconsistent with
Article 8 in conjunction with Annex C(1)(b) of the SPS Agreement because the United States: (i)
neither published the standard processing period of each procedure nor did it communicate the
anticipated processing to Argentina upon request
97; (ii) did not transmit as soon as possible the
results of the procedures in a precise and complete manner to Argentina so that corrective action
may be taken if necessary 98; and (iii) did not inform Argentina, upon request, of the stage of the
procedures, explaining any delay.99
3.6. Argentina requests the Panel to find that the United States' application of the approval
procedure detailed in 9 CFR 92.2 to the request to recognize the Patagonia region as FMD-free was
not undertaken and completed without undue delay and is thus inconsistent with the
United States' obligations under Article 8 in conjunction with Annex C(1)(a) of the SPS Agreement.
Argentina further requests the Panel to find that such an approval process is inconsistent with
Article 8 in conjunction with Annex C(1)(b) of the SPS Agreement because United States: (i)
neither published the standard processing period of each procedure nor did it communicate the
anticipated processing to Argentina upon request
100; (ii) did not transmit as soon as possible the
results of the procedures in a precise and complete manner to Argentina so that corrective action
may be taken if necessary
101; and (iii) did not inform Argentina, upon request, of the stage of the
procedures, explaining any delay.102
3.7. Finally, Argentina requests the Panel to find that Section 737 of the 2009 Omnibus
Appropriations Act contributed to the United States' undue delay in approving Argentina's requests
by "effectively block[ing] any progress on [its] requests before APHIS" 103 and "impeding the

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.

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 errors 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 request for review of the Interim Report, para. 2.

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 not 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 request 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.

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 documents by their official titles as published. Therefore,
the Panel will make the requested changes to paragraph 7.157.
6.18. Further, the United States requests that the Panel modify entry 27 in Tables 1 and 2,
contained in paragraphs 7.120 and 7.146 respectively, by adding that, during consultations carried

115 United States' comments on Argentina's request 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 request 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 United States' request for review of the Interim Report, p. 2.

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 legal arguments on the exchange between the parties
during consultations.124
6.20. The United States' request entails that the Panel make a conclusion as to what took place
during the consultations held pursuant to Article 4 of the DSU. We recall that, under Article 4.6 of
the DSU consultations are confidential. A panel is not privy to the record of those discussions and
should not attempt to create one.
125 In light of the above, the Panel will not make the changes the
United States requests.
6.2 The United States' appropriate level of protection for foot-and-mouth disease
6.21. Argentina disagrees with the Panel's conclusion in paragraphs 7.377-7.387 that the
language of 7 USC 8303(a), which authorizes the 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 should not change paragraphs 7.377-7.387.129
6.23. The Panel notes that Argentina makes its statements without making a specific request for
review of the Panel's finding. Furthermore, the Panel notes that its determination of the United
States' ALOP is based on arguments put forward in the United States' first written submission, its
later citation to 7 USC 8303(a) as the source of the language in its first written submission, as well
as an examination of the United States' actual measures. Therefore, the Panel will make no
changes with respect to its conclusions on the United States' ALOP.
6.24. Next, Argentina requests that the Panel delete paragraph 7.383, which it considers as
disconnected from the arguments of the parties and the facts in dispute.
130 In its view, the Panel
failed to properly characterize Argentina's 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 United States' request for review of the Interim Report, p. 4.
123 Argentina's comments on the United States' request for review of the Interim Report, p. 4.
124 Argentina's comments on the United 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 request 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.

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 appropriate 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 request for review of the Interim Report, para. 10.
140 United States' comments on Argentina's request for review of the Interim Report, para. 11.

6.33. The reference to a Member's right to impose an ALOP with zero risk is not related
specifically to the facts of this case or the United States' ALOP for FMD, which the Panel has
concluded is not zero. Rather, the Panel is using this conclusion – the right of a Member to have a
zero risk ALOP – as an interpretative tool to assist the Panel in understanding what is required to
establish a prima facie case under Article 5.4. The Panel maintains its conclusion that, in light of
the reasoning of the Appellate Body in Australia – Salmon , Argentina's allegation that the United
States treats Argentina "as if" the United States' ALOP were zero is not sufficient, in and of itself,
to establish a prima facie case of inconsistency with Article 5.4.
6.34. Finally, the Panel can find nowhere in paragraphs 7.405-7.408 where it suggests that a
Member may adopt different ALOPs for different Members. Indeed, it is Argentina who claims, in
its arguments, that this is what the United States has done and that such conduct somehow
relates to the obligation in Article 5.4. Argentina is correct that accepting such ability would depart
from the interpretations of prior panels of Article 5.5 – which is the provision of the
SPS Agreement that deals with the consistent application of the concept of the ALOP. We note that
Argentina did not make a claim under Article 5.5.
6.35. Based on the foregoing, the Panel will not reconsider its reasoning in these paragraphs.
6.4 Whether the United States' measures 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. Argentina also notes that there is a great deal of
information in those exhibits that pre-dated the Panel's establishment.145
6.41. As we understand it, the requested change is to add a summary of the United States'
response to Panel question No. 53 following the second substantive meeting, and thus is not a new

141 United States' request for review of the Interim Report, para. 4.
142 Argentina's comments on the United States' request for review of the Interim Report, p. 2.
143 Argentina's comments on the United States' request for review of the Interim Report, 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).

argument raised during the Interim Review stage. Therefore, we see no reason not to include the
response in the summary of the United States' arguments and will make the appropriate
modification to paragraph 7.426.
6.5 Special and differential treatment
6.42. Albeit agreeing with the Panel's conclusion in paragraphs 7.689-7.691 that Article 10.1 of
the SPS Agreement imposes a positive obligation on Members, Argentina expresses the concern
that the Panel's interpretation of said obligation "sets the bar so high" for a complaining Member
that the provision may become de facto unenforceable.
146
6.43. The United States observes that Argentina does not make any request for review; therefore,
the Panel should not change the paragraphs in question.147
6.44. The Panel notes that Argentina makes no specific request for review with respect to these
paragraphs. The Panel also recalls that it does not address the burden of proof under Article 10.1
in the paragraphs referred to by Argentina. Therefore, the Panel will not make any changes.
6.45. Argentina requests that the Panel reconsider its finding in paragraphs 7.695-7.700 that the
Appellate Body's interpretation of the word "consider" in China – GOES does not provide guidance
as to the allocation of the burden of proof under Article 10.1 and "adopt the standard and
approach found in the Appellate Body Report in China – GOES".148. For Argentina, the fact that the
Panel did not follow the Appellate Body's approach and relied instead on the panel in EC –
Approval and Marketing of Biotech Products risks "setting an evidentiary basis that cannot be met"
by most complaining Members.
6.46. The United States asks the Panel to reject Argentina's request, as it considers that the Panel
properly relied on a "solidly reasoned panel report" relating to Article 10.1 instead of drawing upon
"inapposite reasoning" in another report.149
6.47. The Panel disagrees with Argentina and will not accede to its request. First, as explained in
paragraph 7.697, the reasoning of the panel in EC – Approval and Marketing of Biotech Products is
directly relevant. This cannot be said of an Appellate Body report dealing with similar language but
within the very specific context of the Anti -Dumping and SCM Agreements. Second, the Panel
specifically stated in paragraph 7.698 that while the absence of documentation is not sufficient on
its own to make a prima facie case of inconsistency with Article 10.1, it is relevant evidence and
has probative value particularly when a developing country has brought its special need to the
attention of the importing Member. The Panel does not view this as an insurmountable bar to
establishing a claim under Article 10.1.
6.48. Finally, Argentina requests that the Panel delete the last three sentences of
paragraph 7.710, where it states that Article 10.1 imposes an obligation not only on developed
country Members, but indeed on all Members. In Argentina's view, the Panel's reading of the
provision at issue is not supported by the plain meaning of its terms read in their context.
Moreover, Argentina contends that the effect of the Panel's interpretation would be to "engender
broader support for eviscerating the effectiveness of the provision by scaring developing country
Members into thinking it would imply fiscal and resource commitments beyond their means".
150
Argentina accepts that the types of assistance it refers to might be "more of the nature" of what is
covered by Article 9.2. However, Argentina 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 request 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 request 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.

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 one 155, before which claims have been raised under the SPS Agreement as
well as the GATT 1994 have declined to rule on the GATT 1994 claims. All those panels considered
that such rulings would not add anything more to the positive resolution of the dispute. The rulings
of those panels are consistent with Article 2.4 of the SPS Agreement which states that all SPS
measures which conform to the provisions of 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 specific reference to Article 2.4 of the SPS Agreement.
7 FINDINGS
7.1 Order of analysis
7.1. Before commencing the analysis of Argentina's legal claims, we first consider the order in
which we will address such claims.
7.2. In this dispute, Argentina has made claims under Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2,
5.4, 5.6, 6.1, 6.2, 8, 10.1, and Annex C(1) of the SPS Agreement as well as under Articles I:1
and XI:1 of the GATT 1994.
156 Furthermore, when responding to Argentina's claims under the
SPS Agreement, the United States raises 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 request 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 request 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 for the establishment of a panel, pp. 4-5.

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 dispute 160, and maintains that even if the Panel were to see the need to further
address Argentina's other claims, these two provisions should be placed first in the analysis to
avoid "contorting procedural concerns into substantive ones." 161 Thus, the United States proposes
the following order: Article 8 and Annex C(1), Article 5.7, if necessary Articles 5.1, 5.2, 2.2, 5.4,
5.6, 2.3, 3.1, 3.3, 6.1, 6.2, and 10.1, and GATT 1994 Articles I:1 and XI:1. 162
7.1.2 Analysis by the Panel
7.7. With respect to the order between the claims under the GATT 1994 and the SPS Agreement,
we note that the parties did not provide particular argumentation as to this sequencing. We do
note that Argentina presented its claims under the SPS Agreement first and only then mentioned
the GATT 1994. Furthermore, we note that one of the United States' defences to the claim under
Articles I:1 and XI:1 of the GATT 1994 is that, in the light of Article 2.4 of the SPS Agreement, its
measures are consistent with the GATT 1994 by virtue of being consistent with the
SPS Agreement.
163
7.8. We concur with the panel in India – Autos that it is important to consider, first, if a particular
order of analysis is compelled by principles of valid interpretative methodology that, if not
followed, might constitute an error of law. 164 That panel also noted that in considering the order

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 its measures "conform" to international
standards and thus benefit from the presumption 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.

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 Products 169, US – Poultry (China) 170, and India – Agricultural
Products.171
7.11. The order of analysis of the claims before us therefore depends on whether the Panel finds
that the United States' measures are SPS measures within the meaning of Article 1 and Annex A of
the SPS Agreement. If so, pursuant to the reasoning in EC – Hormones and followed in Australia –
Salmon and other disputes , the SPS Agreement would be considered to constitute lex specialis as
it "deals specifically, and in detail" with the type of measure at issue and should thus be analysed
first.172
7.12. In light of these considerations, we will commence our analysis by determining whether the
United States' measures are SPS measures within the scope of the SPS Agreement. If they are, we
will proceed to examine Argentina's claims under that Agreement before then turning to its claims
under the GATT 1994.
7.13. With respect to the order of analysis of Argentina's claims under the SPS Agreement, the
Panel sees potential problems with the orders of analyses proposed by both parties. We
understand from the Appellate Body Report in US – Zeroing (EC) (Article 21.5 – EC) that in
fulfilling their duties under Article 11 of the DSU, panels may "depart from the sequential order
suggested by the complaining party, in particular, when this is required by the correct
interpretation or application of the legal provisions at issue." 173 Indeed, the Appellate Body has
stated that, as a general rule, panels are free to structure the order of their analysis as they see
fit
174, provided that their analysis is consistent with the "structure and logic" of the provisions at
issue in each dispute.175

165 Panel Report, India – Autos, para. 7.161. Furthermore, we note that Article 2.4 of the
SPS Agreement provides that SPS measures 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.
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 arguments referring to this Panel Report. Nevertheless, we
believe that the Panel should examine all relevant guidance on the legal interpretation of the SPS Agreement
and therefore will refer to that 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.

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 2.2 178), appropriate level
of protection (Articles 5.4 and 5.6,); discrimination (Article 2.3); adaptation to regional conditions

176 See para. 7.11 above. Furthermore, a determination of whether the measures are SPS measures
within the meaning of Annex A is relevant for the determination of the applicable international standards for
analysis of claims under Article 3 (Annex A(3)), as well as the type of risk assessment 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 interpreted Article 5.7 as being an exemption from the
applicability of Articles 2.2 and 5.1. (See Appellate Body Report, Japan – Agricultural Products II, para. 80) As
Article 5.2 sets forth what a Member must 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.

(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

risks arising from the entry, establishment and spread of FMD within the United States territory.179
Moreover, Argentina argues that because the United States' market has been closed to Argentine
fresh (chilled or frozen) beef for more than 11 years, this directly affects international trade.
180
Accordingly, Argentina asserts that the measures at issue are sanitary measures covered by
Article 1.1 and Annex A of the SPS Agreement. 181 Argentina maintains that the measures in
question are inconsistent with Article 1.1 of 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.

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.

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 could 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, paras. 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 preventing the "introduction or
dissemination" of a disease falls within the scope of preventing its entry, establishment, and spread.

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.

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; …

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 Article 8 and Annex C(1) of the SPS Agreement
7.3.2.1 Main arguments of the parties
7.3.2.1.1 Argentina
7.54. Argentina submits that the procedures set forth in 9 CFR 92.2 constitute an "approval
procedure" within the meaning of Article 8 and Annex C of the SPS Agreement. It argues, in
particular, that because imports of animals or animal products from a region or country are
conditioned upon the evaluation of its FMD status under the procedures under 9 CFR 92.2
215, such
procedures are "analogous to the types of procedures specifically articulated in Annex C",
especially procedures for "sampling, testing and certification" listed in footnote 7 to Annex C. 216
Moreover, Argentina considers that the procedures set forth in 9 CFR 92.2 "are imposed to
'ensure'" compliance with the requirement under 9 CFR 94 that animal and animal products be
imported "only from those countries and regions which APHIS has declared free of certain
diseases, including FMD".
217 Therefore, the application of those procedures to Argentina's requests
are subject to the obligations in Article 8 and Annex C(1).218
7.55. Argentina further argues that the reference in Annex C(1) to "any procedure", which aims to
"check and ensure the fulfilment of sanitary and phytosanitary measures" suggests broad
construction of the scope of coverage of Article 8 and Annex C.
219 Moreover, in Argentina's view,
the fact that the lists of measures enumerated in Article 8 and Annex C are introduced by the
words "including" and "include, inter alia", respectively, indicates that such lists are indicative and
not exhaustive.220 Moreover, Argentina observes that, 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 and approval procedures' so narrowly qualified".222

215 Argentina's response to Panel question No. 2 following 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; Argentina'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.

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 applicable to every SPS measure.228
7.3.2.2 Main arguments of the third parties
7.3.2.2.1 Brazil
7.59. Relying on the panel report in Australia – Salmon (Article 21.5 – Canada) , Brazil considers
that Article 8 and Annex C(1) apply to procedures that have been implemented to ensure the
fulfilment of SPS measures, but they do not cover the "substantive measures" themselves.
229 In its
view, determinations of disease status for geographical areas fall within the ambit of such
provisions as they are "part of the procedures to ensure the fulfilment and application of an
SPS measure".230
7.3.2.2.2 China
7.60. In China's view, Article 8 and Annex C(1) of the SPS Agreement have broad coverage and
do not specify or exclude any type of procedures from their application.231 Indeed, China observes,
the panel in US – Poultry (China) considered that Annex C(1) covers any procedure that is aimed
at checking and ensuring the fulfilment of SPS measures.232 China also notes that, according to the
Appellate Body in Australia – Apples , Article 8 and Annex C(1) do not necessarily exclude
measures other than control, inspection and approval procedures from their scope of
application.
233
7.3.2.2.3 European Union
7.61. The European Union disagrees with the 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, paras. 51-59; United States' response 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 statement, 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.

not to regions.234 In the European Union's view, the language of such provisions does not contain
any limitation in this regard 235 and indeed does not provide an exhaustive list of procedures that
fall within their purview.236
7.3.2.3 Analysis by the Panel
7.62. Article 8 requires Members to "observe the provisions of Annex C in the operation of control,
inspection and approval procedures", thereby incorporating the disciplines of Annex C into the
operative part of the SPS Agreement. This is 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 products 241, and do not govern the determination of the disease status of geographical
areas.242
7.66. We observe first, that while both Article 8 and Annex C are entitled "Control, Inspection and
Approval Procedures", the text of Annex C(1) imposes obligations on Members with respect to "any
procedure to check and ensure the fulfilment of sanitary or phytosanitary measures". 243 Thus in
our opinion, a plain reading of Annex C(1) suggests that the title, while illustrative, does not
confine the scope of the measures covered as the Un ited States argues. Rather, it is necessary to
examine the text of the provision itself to determine its scope, and thereby the scope of Article 8.

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 Evaluations, Regionalization, 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 response 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, paras. 51-59; United States' response 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.

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 ambit 248, they set forth lists introduced by the terms
"including" (Article 8) and "include, inter alia" (footnote 7 to Annex C). In the context of
Annex A(1) of the SPS Agreement, the Appellate 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 importing Member's procedures, while losing sight of
the ultimate effect of the completion of such procedures, might enable Members to avoid the
application of Article 8 and Annex C by simply parsing their regulatory processes between regional

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" (Article 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 period of time it took Australian authorities to complete it. See Appellate

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 interpretation 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 United 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.

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
265 United States' first written submission, para. 202.

into account all the relevant facts and circumstances. 266 The United States asserts that the length
of time of the approval processes of imports of Argentine products conducted by other WTO
Members is not a reliable benchmark against which to gauge APHIS' reviews, as different Members
may differ in terms of the specific information they require to reach a decision and the ALOP they
have determined for the risk at issue.267
7.81. In the United States' view, not every delay in undertaking or completing an approval
procedure is contrary to the provisions of Annex C(1)(a), but only an unjustifiable one. 268 The
United States considers that this standard is equivalent in nature to that applied to assess what
constitutes a "reasonable period of time" under Article 5.7 of the SPS Agreement. 269 For the
United States, possible factors justifying a delay include (i) delays attributable to the applicant
itself rather than to the approving Member
270; (ii) the necessity to reasonably determine with
adequate confidence whether the relevant SPS requirements have been fulfilled 271; and (iii) the
submission or supervening availability of additional relevant information at a late stage of an
approval procedure.
272
7.82. In the United States' opinion, APHIS had the difficult task of conducting a thorough
examination of Argentina's ability to prevent and control FMD within its territory.273 It also stresses
that obtaining the necessary information to proceed with the approval processes was not easy, as
the data to be collected were (i) not in the United States; (ii) of substantial scope and breadth
including geographical information, internal and cross-border animal movements, quarantine
processes, and veterinary infrastructure; and (iii) only accessible with Argentina's cooperation.
274
7.3.3.2 APHIS' review of Argentina's 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 Argentina 277, especially as the request only sought to
reinstate import rights previously granted during the period 1997-2001 278 and APHIS had already
reviewed the history of FMD outbreaks and 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 statement at the first meeting of the Panel,
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
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
278 Argentina's first written submission, para. 639.
279 Argentina's first written submission, para. 644.

FMD-free status.280 Argentina also notes that the time it took to approve Uruguay from the time of
its last outbreak was two years. 281 Argentina also argues that the FMD situation in Northern
Argentina is similar to Uruguay's in terms of the timing of the last outbreak and because both
regions are recognized by the OIE as FMD-free where vaccination is practised.
282 In this regard,
Argentina also notes that while it had been previously authorized to export fresh (chilled or frozen)
beef to the United States, Uruguay had no such previous authorization.283 Argentina also considers
that the fact that the European Union and Chile promptly reopened their markets to Argentine beef
following the 2003 and 2006 FMD outbreaks is "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 publish 288, or, at least, that
APHIS had all the information needed to complete one. 289 In this regard, Argentina contends that,
under the public international law rules on State responsibility, "the United States must be held to
the evidence of statements" made by its officials.290
7.86. In Argentina's view, the above events reveal that APHIS had no scientific rationale for
waiting over six years after the 2006 FMD outbreak to proceed with the review of its request. 291
Rather, in its view, the delay in APHIS' approval process is due to a number of elements
extraneous to science. 292 Argentina also argues that Section 737 of the 2009 Omnibus
Appropriations Act contributed to the undue delay because it precluded any activity on APHIS' part
in connection with Argentina's pending requests 293 at least from March 2009 to September 2009,
and deterred APHIS from moving forward even after its expiration. 294 In this regard, Argentina
also argues that Section 737 is very similar to Section 727 of the 2009 Omnibus Appropriations

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 question 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; Argentina'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 Wrongful 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.

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 process of imports of fresh (chilled or frozen) beef.
298
It maintains that, since the filing of Argentina' s request in November 2002, APHIS engaged with
SENASA by requesting information and conducting site visits to Northern Argentina.299
7.89. The United States asserts that the delays in the approval process are not attributable to
APHIS, but rather to a "lag in informational response time" on the part of SENASA.300 In particular,
the United States observes that (i) SENASA took over one year to answer additional questions
posed by APHIS in October 2003 concerning the FMD situation in Northern Argentina 301; and (ii)
when APHIS requested a new site visit to Northern Argentina in March 2013, SENASA delayed the
visit until November 2013.302
7.90. Further, the United States argues that APHIS' delay in processing Argentina's request is due
to the changing FMD conditions in the country. The 2003 and 2006 FMD outbreaks in Northern
Argentina, for instance, "raise[d] obvious serious concerns" with respect to SENASA's ability to
prevent and control FMD and required revised analysis. 303 Moreover, the United States asserts,
SENASA suffered a labour strike in 2005, which gave rise to doubts as to its ability to control
FMD.304 The United States also argues that Argentina's "history of intentional concealment and
delayed reporting of outbreaks" played a "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
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.

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 issuance 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
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.

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 publish 323, 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 assessment 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 Administration urging 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. (Argentina's first
written submission, para. 679; Argentina's opening statement 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.

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 South 337; 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 South 343, 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 implemented 346;
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 refers to the fact that it orally mentioned 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' response 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.

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.

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 beginning 363 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 and 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 corrective action may be taken if necessary".
369 Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1495. See also Appellate

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 constitutes 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 appropriate 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 –
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.

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' procedures. 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), (Exhibit 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.

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 (United States Department of Agriculture, 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 Peter Fernandez, APHIS
(5 September 2003), (Argentina's facsimile of 5 September 2003), (Exhibit USA-51); SENASA's letter of
29 August 2003, (Exhibit USA-83).
392 Letter from Pablo Kalnay (United States Department of Agriculture, Animal and Plant Health
Inspection Service, USDA, APHIS) to Dr. Jorge N. Amaya (SENASA, President) (14 October 2003), (APHIS'
letter of 14 October 2003), (Exhibit USA-82).
393 Letter from W. Ron DeHaven (United States Department of Agriculture, Animal and Plant Health
Inspection Service, USDA, APHIS, Deputy Administrator) to Dr. Jorge N. Amaya (SENASA, President)
(3 October 2003), (APHIS' letter of 3 October 2003), (Exhibit USA-84).
394 SENASA's letter of 29 August 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

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 north 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
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 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.
404
8 Feb. 2006 3 days
18. APHIS requested information 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 Agriculture, Animal and Plant Health
Inspection Service, USDA, APHIS) to Arturo Ortiz (SENASA) (21 April 2005), (APHIS' letter of 21 April 2005),
(Exhibit USA-91).
399 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), (APHIS' letter of
7 July 2005), (Exhibit USA-92).
400 Letter from John R. Clifford (United States Department of Agriculture, Animal and Plant Health
Inspection Service, USDA, APHIS, Deputy Administrator) to Dr. Jorge N. Amaya (SENASA, President)
(4 August 2005), (APHIS' letter of 4 August 2005), (Exhibit USA-93).
401 Letter from SENASA to APHIS reporting about 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' letter of 10 February 2006), (Exhibit ARG-38).
406 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),
(APHIS' letter of 27 June 2006), (Exhibit USA-94).

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 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".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 certain 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 Clifford, 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, Note No. 150/2010, (Exhibit ARG-46).
410 Letter from John R. Clifford, Deputy Administrator, Veterinary Services, APHIS to Jorge N. Amaya,
President, SENASA (24 September 2010), (APHIS' letter of 24 September 2010), (Exhibit ARG-47).
411 Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 30 June-
1 July 2011, Note by the Secretariat, G/SPS/R/63 (12 September 2011), (G/SPS/R/63), (Exhibit ARG-22),
paras. 17-18.
412 Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 19-
20 October 2011, Note by the Secretariat, G/SPS/R/64 (17 January 2012), (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.

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 conduct 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 Agriculture, Animal and Plant Health
Inspection Service, USDA, APHIS, Acting Associate Administrator) 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 States Department of Agriculture, Animal and Plant Health Inspection
Service, USDA, APHIS, Administrator) to Marcelo S. Miguez (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

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 documentation 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 December 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, (Exhibit 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 September 2003, (Exhibit USA-51); SENASA'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 USA-84); Information on Northern Argentina provided
by SENASA (November 2004), (Exhibit ARG-86).
431 SENASA's letter of 19 July 2010, Note No. 150/2010, (Exhibit 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).

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 (chilled 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 about 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, (Exhibit ARG-99); APHIS' letter of 15 July 2013, (Exhibit USA-97).
437 2014 Risk Analysis for Northern Argentina, (Exhibit 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
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 information is not justified by the importing Member'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.

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 adopted 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 Importation 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.

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

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 2011 462 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 continued 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 consistent with that of the Appellate Body in US – Shrimp (Thailand) /
US – Customs Bond Directive. In that dispute, the Appellate Body conducted 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 the 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).

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 SENASA 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 SENASA (July 2003), (Exhibit USA-98).
470 Facsimile from Theresa Boyle (United States Department of Agriculture, Animal and Plant Health
Inspection Service, USDA, APHIS, Area Director) to Dr. Jorge N. Amaya (SENASA, President)
(6 November 2003), (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 Agriculture, Animal and Plant Health Inspection 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 Department of Agriculture, Animal 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).

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 the 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 from 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 FMD-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 States Department of Agriculture, Animal and Plant
Health Inspection Service (USDA, APHIS) of the Information Provided by SENASA to Attain Recognition of
Patagonia as a Region, as Defined in Section 92.2, Title 9 of the Code of Federal Regulations for Foot and
Mouth Disease (FMD) (November 2004), (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 Region 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 hearing review into the proposed rule of the United States Department of
Agriculture to recognize Patagonia as a region free of foot-and-mouth disease (22 January 2008),
(Exhibit ARG-39).
478 Letter from Minister José Pérez Gabilondo to Senator 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 Schafer, Secretary, US Department of Agriculture and
Jim Nussle, Director, Office of Management and Budget regarding proposed USDA rule on Patagonia South
(14 March 2008), (Exhibit ARG-40).
481 Letter from Ambassador Héctor Timerman to Senator Baucus in response to his 14 March 2008 letter
(20 March 2008), (Exhibit ARG-42).

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 (United States Department of Agriculture, 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 October 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, (Exhibit 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' letter of 27 April 2009), (Exhibit ARG-79).

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 import of ruminants and ruminant
products from this region presented 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 Administrator, 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, Deputy Administrator, APHIS, to Jorge 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).

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 its 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-and-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 Status 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
506 Information Provided by SENASA (July 2003), (Exhibit USA-98).
507 SENASA's letter of 17 December 2008, (Exhibit ARG-59/USA-111); SENASA's letter of
30 January 2009, (Exhibit ARG-60/USA-112).

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).

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 Notice of Determination only as a benchmark for what
constitutes the ordinary or expected timeframe for APHIS to review comments 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 ARG-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).

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 previously 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, (Exhibit 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).

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 that, 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 delay 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
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 information is not justified by the importing Member'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.

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 B 553; 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, (Exhibit USA-109), Article 1.5.
558 See paras. 7.527-7.528 below.

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 request 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.

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.

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 procedures 573: (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 they 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 third-party response to Panel 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.

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 submissions. 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
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 –
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.

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 light 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 requirement 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 and 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. 150/2010, (Exhibit ARG-46); SENASA's letter of
19 July 2010, Note No. 149/2010, (Exhibit ARG-61/USA-56).

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 that 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: Article 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 efforts in this regard with the relevant international
organizations". These paragraphs are not at issue in the present dispute.

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 Code 605 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 response 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 response 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.

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, 6 618 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 following the first substantive meeting. See also
Argentina's second written submission, para. 98.
608 Argentina's response to Panel question No. 13 following the first substantive meeting. See also
Argentina's second written submission, paras. 89-91.
610 Argentina's first written submission, paras. 197 and 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 following 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 raises claims under Article 6 only with respect to Patagonia.
619 Argentina's first written submission, paras. 226-227, 229.

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 following 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.

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 claims 643, 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 Appellate Body Report, EC – Hormones,
para. 171). See also United States' response to Panel question 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 submission, paras. 9-12; Australia's third-party statement, paras. 10-13.

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 phytosanitary 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 has 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, paras. 14-17 (quoting Appellate Body Report, EC – Hormones,
para. 163); Australia's third-party 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.

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-party submission, paras. 32-33.
660 European Union's third-party submission, para. 34.
661 European Union's third-party submission, para. 35.
662 European Union's third-party submission, para. 37.
663 European Union's third-party submission, para. 40.
664 European Union's third-party submission, paras. 41-42.
665 European Union's third-party response to Panel question No. 1.
666 European Union's third-party response to Panel question No. 1.
667 European Union's third-party response to Panel question No. 1.
668 European Union's third-party response to Panel question No. 1 (emphasis original).
669 European Union's third-party response to Panel question No. 1 (emphasis original).
670 European Union's third-party response to Panel question No. 1 (emphasis omitted).

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 and 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.

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 use, 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 standards, guidelines or recommendations. (Panel
681 We note that the chapter numbers for the FMD provisions 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 their submissions. The Panel is aware that the latest edition of the Terrestrial
Code is the one that contains the most up-to-date evaluation by the Code Commission reflecting the latest
scientific knowledge. However, the text of the FMD provisions 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 claims 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-designation 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.

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 recommendations 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 response to Panel question
Nos. 13(a) and (c) following the first substantive meeting.
688 United States' first written submission, para. 321.
689 This is evidenced by the OIE official disease status recognition of Northern 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. 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 Analysis for Patagonia South,
(Exhibit ARG-9))
690 The United States only refers to the Terrestrial Code, but we note that the OIE also promulgates
standards in the Aquatic Code as well as the 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.

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) did 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 draft 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 whether 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. (Transcript of the meeting, para. 1.8) Furthermore, in the
OIE's view official recognition of a country or zone as FMD-free is an affirmation that 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.

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-mortem 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 exporting country for at least three months
prior to slaughter;
 b) have remained, during this period, in a part of the country where
cattle are regularly vaccinated against 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 cattle 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 before 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 lymphatic 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

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 status recognition of Northern 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-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 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, contrary to the position of Argentina the mere fact that
the United States has accepted imports from one country 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 country 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 reflect the same level of protection as the standard to be based on that
standard was "to be left for another day and another case".

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 and 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 eradication 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 with respect to Chapter 10.4 of
the Terrestrial Code and India's prohibition on poultry products. (See Panel Report, India – Agricultural
Products, paras. 7.270-7.272)

Article 4.3.3 of the Terrestrial Code in relevant part:
1. The extent of a zone and its geographical limits should be established by the Veterinary Authority on the
basis of natural, artificial and/or legal boundaries, 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 maintain the distinct animal health status of a zone or
compartment should be appropriate to the particular circumstances, and will depend on the epidemiology of
the disease, environmental factors, the health status of animals in adjacent areas, 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 animal 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 disease 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 control 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 particular 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 has been accepted by the OIE.
The information required in points 2, 3 and 4b)-c) above 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 based 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.

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 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-mortem 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 the Terrestrial Code that deal with products other than fresh (chilled or frozen) beef
in respect of its claim regarding Patagonia under Article 3.1. With respect to specific import recommendations,
Argentina has only mentioned 8.5.22.
712 Terrestrial Code, Foreword.
714 This approach is consistent with that taken by the panel in India – Agricultural Products with respect
to Chapter 10.4 of the Terrestrial Code. See Panel Report, India – Agricultural Products, paras. 7.254-7.263.

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 the 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 3.3 716 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 refers generally to any provision of this agreement, which includes
Article 5.7. It also specifically refers to paragraphs 1 through 8 of Article 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. Rather, 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."

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. However, 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 coherent application of the SPS Agreement. If accepted, it could mean that
a Member could simply avoid the applicability of Article 3.3 and other provisions of the SPS Agreement (other
than Article 8 and Annex C(1)(a)) by refusing to reach 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 appropriate. See also Appellate Body Report, Canada/US – Continued Suspension,
para. 685.
723 Argentina's first written submission, paras. 227 and 449.

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 Article 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.

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 following 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. Argentina 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)

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 its 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.

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 5.7 759,
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 the 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 following 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.

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 time 773 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.

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 measure 793 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.

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 assessment 805,
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-party submission, paras. 60-62.
798 European Union's third-party submission, para. 61.
799 European Union's third-party submission, paras. 64-65. Article 13 of the DSU refers to the panel's
right to seek information from experts and others.
800 European Union's third-party 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.

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 with 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 inconsistent 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.

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 each of the four cumulative requirements have been
satisfied.
817
7.5.2.4.1 "Members shall seek to obtain the 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 procedure 819, 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 discussed Article 5.7 of the SPS Agreement. The Appellate Body in EC – Tariff
Preferences stated that where the permissive provision constitutes 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 behaviour". 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.") (Appellate 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.

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 faith 823 and mutual cooperation 824, 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 justifiable 829 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' response 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.

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 period 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' measures 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 reference for our analysis under this requirement.
834 Information Provided by SENASA (July 2003), (Exhibit USA-98).
835 SENASA's letter of 17 December 2008, (Exhibit ARG-59/USA-111); SENASA's letter of
30 January 2009, (Exhibit ARG-60/USA-112).
836 We note that the parties have provided argumentation 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 another 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.

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 December 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.

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 its 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.

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 Panel 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-party submission, para. 48.
868 European Union's third-party submission, para. 46.
869 European Union's third-party 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.
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)
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

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

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 Member 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 aspect" 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 "determined by assessing the relationship between the
conclusions of the risk assessor and the relevant available scientific evidence." (Appellate Body Report,
Australia – Apples, para. 208)

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 assessment 887 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 2001 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 warrant – 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 carried out its own risk assessment … [t]he SPS measure

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).
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 effectiveness of certain control measures).
899 2001 Interim Rule on Argentina, (Exhibit ARG-29).

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 obligations 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 clarified that Articles 2.2 and 5.1 must constantly be
read together 904, 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.
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.

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 from 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 agree 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 being relied upon. Therefore, that panel concluded that, for
the purposes of the dispute, it would examine any risk assessment existing prior to the establishment of the
panel for conformity with Article 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 States 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 recognizing territories as disease-free do not fall within the
scope of such a provision. In paras. 7.69-7.70 above, we disagreed with the United States' argument.

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 Annex 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).

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 available 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 rulemaking 926 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.

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 the 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 United 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,
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.

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.
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 Article 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,
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.

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 obligation 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 analysing 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 Articles 2.2 and 5.6 had not been 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)

"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 for 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 the first substantive meeting.
959 7 USC § 8303(a), (Exhibit USA-75).
960 United States' response to Panel question No. 42 after the first substantive meeting.
961 United States' first written submission, para. 125 (citing 7 USC § 8303(a), (Exhibit USA-75)).

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 experts' 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 adulterated, and contain no dye, chemical, preservative 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 agency of the United States' Department of Agriculture (in that case the
Food Safety Inspection Service) making specific determinations about the admissibility of products from
particular countries or regions.

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 products 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 described 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),
975 We note that it is unremarkable that three countries 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 trade-restrictive measures that Argentina proposes the
United States could apply to its products.

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 achieve 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.

978 Appellate Body Report, Australia – Salmon, para. 203 (emphasis omitted).
979 Similarly a claim that the United States was applying more than one level of protection would be the
subject of a claim under Article 5.5. However, Argentina 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 situation the Appellate Body warned
about in its report in Australia – Salmon. See Appellate Body Report, Australia – Salmon, para. 203.

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
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 and/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 following 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.

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-party 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 negative trade effects is nonetheless to be taken into
account in the interpretation of other provisions of the SPS Agreement.
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

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.
1007 Appellate Body Report, US – Tuna II (Mexico), para. 313
1008 Article 5.5 provides:
With the objective of achieving consistency in the 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 exceptional character of human health risks to which
people voluntarily expose themselves. (emphasis added)
1009 Article 5.6 provides:
…Members shall ensure that such measures are not more trade-restrictive than required to achieve their
appropriate level of sanitary or phytosanitary protection, taking into account technical and economic
feasibility. (footnote omitted, emphasis added)

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 negative 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 effects 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 effects 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,

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 contains 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

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 importation 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 Argentina. Our understanding finds support in Argentina's
second written submission, where Argentina clarifies that the provision of the 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.

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 States' 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 question 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 arguments 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. 312-316; Argentina's opening statement at the first
meeting of the Panel, para. 46; Argentina'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.

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 assessment, 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 assessment 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 ALOP 1042, 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.

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.

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.
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 third-party response to Panel question No. 14.
1067 European Union's third-party response to Panel question No. 14.
1068 European Union's third-party submission, para. 55.

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 contends 1076, and the United States does not disagree 1077, 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.

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).

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.
1089 2014 Risk Analysis for Patagonia, (Exhibit USA-133).
1090 2014 Risk Analysis for Northern Argentina, (Exhibit 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.

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 parties – or to develop its own legal reasoning – to support its own findings
and conclusions on the matter under its consideration.") (quoting Appellate 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 request 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.

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 responses 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, contaminants, 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 health "from risks arising from the entry, establishment or spread of pests,
diseases, disease-carrying organisms or disease-causing organisms". (See Panel Report, Australia – Apples,
1103 Appellate Body Report, Australia – Apples, para. 356.

(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 United 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 include: (i) geographical
factors; (ii) livestock industry; (iii) relevant veterinary legislation; (iv) veterinary services; (v) the role of
farmers, industry, private veterinarians and other relevant groups in FMD 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; (xii) serological surveillance; (xiii) slaughterhouses and
markets; (xiv) coordination with neighbouring countries; (xv) controls in place for swill feeding; (xvi) import
control procedures; and (xvii) control 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)

(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 programs 1111; enhanced internal
monitoring, accountability, and compliance with national policies 1112; 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 region 1114; 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 Argentina, (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 Argentina, (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.

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 premises and the census of FMD-susceptible animals by
SENASA had not essentially changed 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 between 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, (Exhibit USA-169), pp. 18-19, 52-54. 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.
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 Argentina, (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 Argentina, (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.

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 controls 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 status 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 partners 1154 and immediately took action by adopting

1141 See Dr Batho's response to Panel question No. 57. Dr Bonbon added that, in light of such
improvements, the risk of FMD-transmission from imports 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 Argentina, (Exhibit USA-169), p. 16.
1143 2014 Risk Analysis for Northern Argentina, (Exhibit USA-169), p. 16.
1144 Resolución SENASA 754/2006. Créase la Clave Unica de Identificación Ganadera, que identificará
"Procedimiento para Reidentificación de Bovinos, (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. (DG(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 European 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, (Exhibit USA-51); SENASA's letter of 29 August 2003,
(Exhibit USA-83).
1153 See FMD Impact Worksheet, (Exhibit USA-54).
1154 OIE, Final Report, 74th General Session (2006), (Exhibit USA-55), pp. 45, 144.

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 2007 1160 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); Resolución SENASA Nº 36/06, (Resolución SENASA
36/2006), (Exhibit ARG-6).
1156 Resolución SENASA 35/2006, (Exhibit ARG-5); Resolución 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 Swine 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 Argentina, (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).

Table 4: Overview of the regulations in force 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-susceptible 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, (Resolución SENASA 25/2001), (Exhibit ARG-92).
1166 Resolución SENASA 58/2001, (Exhibit USA-59).
1167 Resolución SENASA Nº 112/02, (Resolución 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).
1174 Resolución SENASA 385/2008. Estrategias de Vacunación Antiaftosa para bovinos/bubalinos en todo
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); Resolución 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); Resolución SENASA 540/2010,
(Exhibit ARG-135).
1183 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, (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); Resolución 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).
(Exhibit ARG-152).

Action by SENASA Relevant regulations on the record
Slaughterhouse practices (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 contact 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 contain 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 categories of cattle, as well as buffaloes.1213

1189 Resolución SENASA 37/2002. Establécense medidas de prevención de difusión de la fiebre aftosa
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
inscriban en el "Registro de Establecimientos Pecuarios de Engorde a Corral proveedores de bovinos para faena
con destino a exportación, (Resolución SENASA 15/2003), (Exhibit ARG-145).
1192 Resolución SENASA 391/2003. Inscripción de "Establecimientos Rurales de Origen", que provean
bovinos nacidos y criados en los mismos con destino a "Establecimientos Rurales Proveedores de Ganado para
Faena de Exportación". Requisitos, (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 Certificado Unico de Lavado y Desinfección de Vehículos
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 July 1997), (Exhibit ARG-151).
1202 Resolución SENASA 15/2003, (Exhibit ARG-145).
1203 Resolución SENASA 391/2003, (Exhibit ARG-146).
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, (Exhibit ARG-148).
1205 SENASA Notice No. 4056 informing the minimum frequency of supervisory visits to all types of
authorized establishments (4 January 2013), (Exhibit ARG-124).
1207 SENASA, Aprueba el Programa para Investigaciones Epidemiológicas 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 Contención 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.

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 C3/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 committee 1219, 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 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), (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 Argentina, (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 the World Health Organization. It was established in 1951
with a view to developing a programme for the control 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)
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.

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 bovine population in the region.
7.474. As to the effectiveness of vaccination in reducing 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 adjacent 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 Argentina, (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 Disease, 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 farmers, 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.
1234 Dr Cupit's response to Panel question No. 6.

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 Argentina, (Exhibit USA-169), p. 27.
1240 2014 Risk Analysis for Northern Argentina, (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)
1245 OIE's response to Panel question No. 19.
1246 Terrestrial Code, Foreword. See also OIE's response to Panel question No. 10.
1247 2014 Risk Analysis for Northern Argentina, (Exhibit USA-169), p. 27.
1248 See APHIS website, Foot-And-Mouth and Rinderpest, available at
http://www.aphis.usda.gov/import_export/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 Argentina, (Exhibit USA-169), p. 42.
1253 2014 Risk Analysis for Northern Argentina, (Exhibit USA-169), p. 42.

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 which movement of animals and animal products is controlled
from regions of higher risk, and the level 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 vaccination 1265, 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 regional 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.

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 evidence 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 and 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 Argentina, (Exhibit USA-169), p. 27.
1269 2014 Risk Analysis for Northern Argentina, (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 (referring 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 Argentina, (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, (Exhibit 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 Cupit, 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 transmission through aerosols or
direct or indirect contacts". (Dr Bonbon's response to Panel question No. 1)

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 requirements 1289 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 Patagonia", 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 Argentina, (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-mortem. In 2014, conversely, APHIS found that veterinarians
specifically check the feet, muzzle, and tongue for vesicular 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

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, serological 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, (Exhibit 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 Argentina, (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 European 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.

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 diagnostic capabilities to adequately test 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 infrastructure 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 animals 1319, 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 scientific 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 Argentina, (Exhibit USA-169), p. 76.
1312 2014 Risk Analysis for Northern Argentina, (Exhibit USA-169), p. 76.
1313 2005 Risk Analysis for Patagonia South, (Exhibit ARG-9), pp. 66-67.
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, for the most part, its findings made in 2005. (See
2014 Risk Analysis for Northern Argentina, (Exhibit USA-169), pp. 78-82)
1323 European Commission's 2006 Report, (Exhibit ARG-111), p. 20.

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, recalling that we have found that the 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 applied 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 the 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 Protection" 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.

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 (chilled 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 therefrom 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 their 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 the region constituting the
object of the exporting Member's request.
This requirement reduces the 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. 312-316; Argentina's opening statement at the first
meeting of the Panel, para. 46; Argentina'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

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 bovines that received ante-
mortem and post-mortem veterinary 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 inside 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 the 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 reduces 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 through 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 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.
1340 OIE's response to Panel question No. 26.
1341 Argentina's response to Panel question No. 9 following the first substantive meeting; United States'
response to Panel question No. 8 following 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 factor for spread of foot-and-mouth disease associated with international
trade in deboned beef, OIE ad hoc Group on Trade in Animal Products (October 2009), (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.

Protocols under 9 CFR 94.221331 Effectiveness in reducing risk
The beef has not been in contact with meat from
regions other than those listed in 9 CFR 94.1(a)(2).
This requirement reduces the likelihood that, after
slaughter, fresh beef destined for export to the
United States is commingled with beef from other
regions that are FMD-infected, 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 correctness 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 the 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.

7.6.7.4.1.15 Conclusions on whether 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 regulations 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 SENASA had not essentially changed since the 2005 risk
assessment. (See Ibid. p. 41) Moreover, SENASA provided information to APHIS covering the period between
2003 and 2007, which indicated that movement controls in Argentina remained essentially unchanged since
the 2005 risk assessment. (See Ibid. pp. 43-44) Finally, APHIS' 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)

"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 prevent 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 status 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 Panel question No. 57. Dr Bonbon added that, in light of such
improvements, the risk of FMD-transmission from imports 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, (Exhibit 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 which 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 Patagonia South prior to August 2003. See Argentina's
response to Panel question No. 25 following 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.

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 adjacent 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 which movement of animals and animal products is controlled
from regions of higher risk, and the level 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.

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 (vi) 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).
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.

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 and 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 requirements 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.

maturation of fresh meat are not practised in Patagonian slaughterhouses. In this respect,
Dr Batho observed that the European Union does not 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

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 Argentina, (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.

7.537. APHIS concluded that "Argentina has the diagnostic capabilities to adequately test 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 infrastructure 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 scientific 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 inspections, 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.
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.

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 protocols. Our findings in this section are without prejudice to any general
requirements concerning the importation of live animals 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.

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.

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, inconsistently 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 FMD 1439,
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 submission, 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.

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.

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 interests 1460, 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 between 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.

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 with 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.
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.

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 Panel 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 distinction 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).

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 2.3 1511, 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-party submission, para. 68.
1505 European Union's third-party submission, para. 68.
1506 European Union's third-party submission, para. 69.
1507 European Union's third-party submission, paras. 69 and 70.
1508 European Union's third-party 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),
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.

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 our interpretation of the terms of Article 2.3.
7.571. With respect to the obligation in the first sentence 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 similar 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.merriam-webster.com/dictionary/condition (last 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
1523 Appellate Body Report, US – Shrimp, para. 165. See also Panel Report, India – Agricultural
1524 Appellate Body Report, US – Shrimp, para. 160.

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', whatever 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 –
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.

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 the 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.

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 Panel 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.

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.

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 favourable 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.

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' response 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 stated, that "[i]f the OIE grants a status to a
country or a zone, that is an evaluation of the probability of the virus being present. Having granted that status
the appropriate measures to be applied 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.

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 requirement of Article 2.3 of the SPS Agreement.
7.7.4.2 Discrimination between Patagonia, 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 the 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 its territory and to ensure that the region remains

1565 United States' first written submission, para. 296.

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 State 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.

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.
1580 See paras. 7.167-7.168 above.
1581 See paras. 7.169-7.170 above.
1582 See para. 7.528 above.

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 requirement 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.

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 the 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.

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 identified 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.

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 1994 1602; the "exemplary
eradication and control program" SENASA put in place, whose adequacy has been acknowledged
by APHIS on several occasions 1603; 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 Patagonia 1606, 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 Corrientes 1608; 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.

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 following 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 following 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.

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 meeting 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' response 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.

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 Annex 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-party statement, para. 24.
1633 European Union's third-party statement, para. 25.
1634 European Union's third-party 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>).

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 "region" 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 the 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 possibility that an importing Member could adapt its
SPS measures to regional conditions even in the absence 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).

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 their measures with sufficient scientific evidence under
Articles 2.2, 5.1 and 5.2, and thus in some circumstances, under Article 5.7.

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 6.1 1654, 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 area 1658, 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 Article 5.1. Therefore, if an exporting Member claims
disease-freedom for a portion of its territory under Article 6.3 and provides all relevant information such that
there is no insufficiency of the scientific evidence, Article 5.7 would not be applicable. Rather, the importing
Member would simply review and update its risk 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 following 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 which a product is destined.
1659 See para. 7.642 above.
1660 Panel Report, India – Agricultural Products, para. 7.671.

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

Member does so, it is required, under Article 6.3 to "provide the necessary evidence" to the
importing Member to "objectively demonstrate" its claim 1670 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 the 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 particular, 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 Article 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)

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 Recognition of Argentina's Patagonia as a Region
Comprised in Article 92.2, Title 9, Code Of Federal Regulations in Regard to Foot and Mouth Disease –
FMD (July 2003), (Exhibit ARG-50).
1678 2001 Interim Rule on Argentina, (Exhibit ARG-29); 2001 Final Rule on Argentina, (Exhibit ARG-30).

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 information 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 measure 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.

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 phytosanitary protection allows scope for the phased
introduction of new sanitary or phytosanitary 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.

United States has failed to accord Argentina special and differential treatment in the preparation
and application of its SPS measures as required 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 following 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 economic assistance in building veterinary infrastructure. We note that
some of this assistance took place in the 1960s.

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-party submission, para. 74.
1701 European Union's third-party 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 thereto (equating the term
"consider" in Article 3.2 of the Anti-Dumping Agreement to "take into account").

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 special 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 minimize 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 Article 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.
1707 Additionally, we note that in the arbitration 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 considered 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).

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 must 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 document 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;
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.
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.

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 not 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 Member. However, as will be
discussed further below, the importing Member does need to be aware that 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 identifies significant difficulties with the proposed measure, that
Member may, in its comments, request an opportunity 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 concern, 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 addressed to take into account the special needs of
the interested exporting developing 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 necessary; even when the application has deficiencies, the competent body
proceeds as far as practicable with the procedure if the applicant so requests; and that upon request, the
applicant is informed of the stage of the procedure, with any delay being explained.

7.700. 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 identified 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 products 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 capacity". 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.

of this lack of capacity can be a special need that 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 deficiencies identified pursuant 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.

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 explaining 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.

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 other 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 Agreement 1738 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 Article 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 unqualified 1742 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-party 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 the 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. Countervailing duties may only be imposed pursuant to investigations initiated and conducted
in accordance with the provisions of this Agreement and the Agreement 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.

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.

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.

[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 reason 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 contribute 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,
Australia – Salmon, para. 8.185; and EC – Approval and Marketing of Biotech Products, para. 7.3429.

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.

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 benefits 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.

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 submission, 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).

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 districts 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 2001 28
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 2001 30

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 risk to the United States (US) of importing Foot and Mouth
Disease (FMD) Virus in Fresh or Frozen Beef from Argentina (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, (Exhibit 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 (November 2002), (Exhibit USA-32), p. 16.
28 Information Provided by SENASA (November 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).

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 2001 34
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 2001 40, 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 2001 43
July 2001 324 outbreaks of FMD reported in July 2001 44
August 2001 68 outbreaks of FMD reported in August 2001 45
September 2001 17 outbreaks of FMD reported in September 2001 46
October 2001 1 outbreaks of FMD reported in October 2001 47
November 2001 7 outbreaks of FMD reported in November 2001 48
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), (Exhibit USA-32), p.16. See 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), (Exhibit USA-32), p.16. See 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 (November 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 (November 2002), (Exhibit USA-32), p. 16.
44 Information Provided by SENASA (November 2002), (Exhibit USA-32), p. 16.
45 Information Provided by SENASA (November 2002), (Exhibit USA-32), p. 16.
46 Information Provided by SENASA (November 2002), (Exhibit USA-32), p. 16.
47 Information Provided by SENASA (November 2002), (Exhibit USA-32), p. 16.
48 Information Provided by SENASA (November 2002), (Exhibit USA-32), p. 16.
49 2001 Final Rule on Argentina, (Exhibit ARG-30).

Date Event
December 2001 2 outbreaks of FMD reported in December 2001 50
18 January 2002 SENASA adopted Resolution 112/02, which prohibited the entry of
FMD-vaccinated animals into Patagonia 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 the 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 FMD-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), (Exhibit 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 (November 2002), (Exhibit USA-32), p. 14.
53 Argentina's first written submission, para. 133.
54 Information Provided by SENASA (November 2002), (Exhibit USA-32).
55 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), (Exhibit USA-78).
56 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.
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 Epizootics Commission (Paris, 16,
17 and 22 May 2003), (Exhibit ARG-119).
62 Information Provided by SENASA (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 August 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.

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, the 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 information 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 proceed 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 letter, 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 August 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 August 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 Agriculture, 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 Boyle (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 Boyle (United States Department of Agriculture, Animal and Plant
Health Inspection Service, USDA, APHIS, Area Director) (30 July 2004), (Exhibit USA-87).
82 Report of the Meeting of the OIE Ad Hoc Group for 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).

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 Argentine 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 analysis 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 for Evaluation of Country Status for Foot and Mouth
Disease (October 2004), (Exhibit USA-88).
86 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), (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 December 2005, (Exhibit ARG-96).
99 FMD Impact Worksheet, (Exhibit USA-54). See also OIE Disease Information, Vol. 19, No. 6, p. 96.

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 the 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, Note No. 150/2010, (Exhibit 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 Animal 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 hearing review into the proposed rule of the United States Department of
Agriculture to recognize Patagonia as a region free of foot-and-mouth disease (22 January 2008),
(Exhibit ARG-39).

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 Senator 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 Schafer, Secretary, US Department of Agriculture and
Jim Nussle, Director, Office of Management and Budget regarding proposed USDA rule on Patagonia South
(14 March 2008), (Exhibit ARG-40).
116 Letter from Ambassador Héctor Timerman to Senator 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 October 2008, (Exhibit USA-107).
120 SENASA's facsimile of 11 November 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, (Exhibit ARG-59/USA-111); SENASA's letter of 30
January 2009, (Exhibit ARG-60/USA-112).
124 SENASA's letter of 17 December 2008, (Exhibit ARG-59/USA-111); SENASA's letter of 30
January 2009, (Exhibit ARG-60/USA-112).

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 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 río Negro, and asking that the outcome foreseen
for Argentina's request be elucidated 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, highlighting 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-making 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 provide 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 pursuant 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, Note No. 150/2010, (Exhibit ARG-46).
129 SENASA's letter of 19 July 2010, Note No. 149/2010, (Exhibit 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 and 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.

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 Northern Argentina, dated April 2014, stating
that the risk of introduction of FMD stemming 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 applied 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.

Patagonia (Exhibit USA-133).
145 2014 Risk Analysis for Northern Argentina, (Exhibit USA-169).
146 2014 Proposed Rule on Northern Argentina, (Exhibit USA-168).