UNITED STATES – MEASURES AFFECTING THE IMPORTATION OF FRESH LEMONS
Document: Request for the Establishment of a Panel by Argentina
Date: 7 December 2012
Document codes: WT/DS448/2
Complainant: Argentina
Respondent: U.S.
Dispute stage: Panel
Agreements cited: Art. 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, 7, Annex B, 8, Annex C, 10.1  Sanitary and Phytosanitary Measures (SPS)Art. I:1, III:4, X:1, X:3, XI:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – MEASURES AFFECTING THE IMPORTATION
OF FRESH LEMONS

Request for the Establishment of a Panel by Argentina

 The following communication, dated 6 Decemb er 2012, from the delegation of Argentina to
the Chair of the Dispute Settlement Body, is circ ulated pursuant to Article 6.2 of the Dispute
Settlement Understanding (DSU).

My authorities have instructed me to request the establishment of a panel pursuant to Article 6
of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) of the
 (WTO) concerning US measures affecting the importation of fresh lemons
from the North-West region of Argentina (" United States - Measures Affecting the Importation of
Fresh Lemons" - DS448).

To this end, I should be grateful if this item could be placed on the agenda of the next regular
meeting of the Dispute Settlement Body (DSB) on the basis of the request set forth hereunder.

 On 3 September 2012, Argentina requested c onsultations with the United States pursuant
to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU), Article XXIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994)
and Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS Agreement) concerning US measures affecting the importation of fresh lemons
1 from
the North-West region 2 of Argentina. This request was circulated to WTO Members
on 5 September 2012 in document , " United States - Measures Affecting the Importation
of Fresh Lemons".

Consultations were held on 17 and 18 Oct ober 2012 in Geneva, Switzerland, with a view
to the satisfactory adjustment of the matter. These consultations unfortunately failed to resolve
the dispute.

 Argentina accordingly requests that a panel be established under Articles 4 and 6 of the DSU,
Article XXIII of the GATT 1994 and Article 11 of the SPS Agreement.

1 Citrus limon (L.) Burm. f. (Rutaceae).
2 The North-West region of Argentina comprise s the provinces of Catamarca, Jujuy, Salta
and Tucumán.

 Argentina contests the import prohibition contained in the regulations established
under Title 7, Part 319, Subpart 28(a) (1, 2 and 3) of the Code of Federal Regulations (CFR)
(7 CFR 319.28(a) (1, 2 and 3)) and imposed by the United States on fr esh lemons from the
North-West region of Argentina to prevent the intr oduction into the former of the following diseases:
citrus canker [ Xanthomonas campestris pv. citri (Hasse) Dye], sweet orange scab ( Elsinoe australis
Bitanc. and Jenkins) and cancrosis B.

 Argentina also contests the continuation, with no scientific justification, of the application to
fresh lemons from the North-West region of Argent ina of the general import prohibition contained in
Title 7, Part 319, Subpart 56-1(b) of the CFR (7 CFR 319.56-1(b)). The app lication of this general
prohibition to the importation of fresh lemons from the North-West region of Argentina appears to
ensue from the following:

(i) The Final Rule of the Animal and Pl ant Health Inspection Service (APHIS),
published in the Federal Register on 25 June 2003 (68 FR, 37904-37923), which,
on the basis of the judgement in the case " Harlan Land Company, et al. "
3, repeals
("removing and reserving ") the administrative instructions in 7 CFR 319.56–2f
governing the importation of lemons from Argentina; and

(ii) the failure by the United States to appr ove the importation of fresh lemons from the
North-West region of Argentina, as requested by our country in 2005, in the context
of the approval procedures under Title 7, Part 319, Subpart 56 "Fruits and
Vegetables" (7 CFR 319.56 to 319.56.56) and related provisions.

 The maintenance, in respect of fresh lemons from the North-West region of Argentina, of the
prohibition established in 7 CFR 319.28(a) (1, 2 and 3), as well as of the application of the general
import prohibition contained in 7 CFR 319.56-1(b), h as no scientific justification and constitutes an
import prohibition inconsistent with the rules of the SPS Agreement and the GATT 1994.

 The prohibition on the importation of fresh le mons from the North-West region of Argentina
constitutes a disproportionate measure in relation to the possible risk to the United States of the
above-mentioned diseases once the appropriate mitigation measures have been taken. In this regard,
the prohibition applied entails a greater degree of r estriction on trade than is necessary in respect of
the level of protection sought by the aforementioned US measures.

 Likewise, as far as certain pests are concer ned, the Animal and Plant Health Inspection
Service (APHIS) appears to make import approval for fresh lemons from the North-West region of
Argentina contingent upon certain requirements also lacking in scientific justification.

 Furthermore, by means of the import prohibition, the United States is unjustifiably
discriminating between fresh lemons from the North-West region of Argentina and those from other
WTO Members or originating in the United States.

3 Harlan Land Company, et al. vs. United States Department of Agriculture, et al. ,
Case #CV-F-00-6106-REC/LJO (D. Ariz. Sept. 27, 2001).

 In short, with regard to the prohibiti on on the importation of fresh lemons from the
North-West region of Argentina and the continued application of the general prohibition to import
these products, this panel request covers the fo llowing US measures which are contested by
Argentina, as well as any amendments thereto, related measures or implementation measures:

- The import prohibitions contained in 7 CFR 319.28(a) (1, 2 and 3);

- the application of the general import pr ohibition contained in 7 CFR 319.56-1(b);

- the Final Rule of the Animal and Pl ant Health Inspection Service (APHIS)
[Docket No. 02-026-4], published in the Federal Register on 25 June 2003
(68 FR, 37904-37923);

- the judgment in the case Harlan Land Company, et al. vs. United States Department
of Agriculture, et al., Case #CV-F-00-6106-REC/LJO (D. Ariz. Sept. 27, 2001).

 Furthermore, Argentina contests the undue de lays by the United States in applying the
approval procedures for the importation of fruit and vegetables into that country contained
in 7 CFR 319.56 to 319.56.56 and related provisions.

 These undue delays have occurred with regard to the import approval procedures for fresh
lemons from the North-West region of Argentina.

 Seven years have elapsed since these procedur es were initiated in accordance with the request
made by Argentina in 2005, but no action has even been taken to publish a proposal for amendment of
the relevant regulation in order to authorize th e importation of fresh lemons from the North-West
region of Argentina.

 These undue delays are inconsistent with the rules of the SPS Agreement.

 In short, Argentina contests the undue de lays in applying the procedures contained
in 7 CFR 319.56 to 319.56.56 and related provisions during the approval procedure relating to fresh
lemons from the North-West region of Argentina, initiated in 2005.

 Finally, through the aforementioned measures, the United States also discriminates against
fresh lemons from the North-West region of Argentina.

 In view of the foregoing, the US measures app ear to be inconsistent with that country's
obligations under the following rules of the covered agreements:

(i) Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, 7 and Annex B, 8 and Annex C.1 and
Article 10.1 of the SPS Agreement;

(ii) Articles I:1, III:4, X:1, X:3 and XI:1 of the GATT 1994;

(iii) Article XVI:4 of the Marrakesh Agreement.

 The US measures appear to nullify or impair the benefits accruing, directly or indirectly, to
Argentina under the covered agreements.

 Argentina requests that the panel be establis hed with the standard terms of reference,
in accordance with Article 11 of the SPS Agreement a nd Article 7.1 of the DSU. To that end, it asks
that this request be placed on the agenda of the me eting of the Dispute Settlement Body to be held
on 17 December 2012.