INDIA –MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS
Document: Request for the Establishment of a Panel by the United States
Date: 14 May 2012
Document codes: WT/DS430/3
Complainant: U.S.
Respondent: India
Third parties: China, Colombia, Ecuador, EU, Guatemala, Japan, Vietnam, Argentina, Australia, Brazil
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B  Sanitary and Phytosanitary Measures (SPS)Art. XI  GATT 1994

INDIA –MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS

Request for the Establishment of a Panel by the United States

 The following communication, dated 11 May 2012, from the delegation of the United States
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

On March 6, 2012, the United States requested c onsultations with the Government of India
("India") pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), Article 11 of the Agreement on the Application of Sanitary and
Phytosanitary Measures ("SPS Agreement"), and Article XXII of the General Agreement on Tariffs
and Trade 1994 ("GATT 1994"), concerning measures that India imposes on the importation of
various agricultural products from the United States purportedly because of concerns related to avian
influenza. The United States and India held such consultations on April 16 and 17, 2012.
Unfortunately, those consultations were unsuccessful in resolving this dispute.
India's avian influenza measures prohibit the im portation of various agricultural products into
India from those countries reporting Notifiable Av ian Influenza (both Highly Pathogenic Notifiable
Avian Influenza and Low Pathogenic Notifiable Avian Influenza). India maintains its avian influenza
measures through the following legal instruments:
– the Indian Livestock Importation Act, 1898 (9 of 1898) ("Livestock Act"); and
– orders issued by India's Department of Animal Husbandry, Dairying, and Fisheries
("DAHD") pursuant to the Livestock Act, most recently S.O. 1663(E), which was
published in the Gazette of India on July 19, 2011,
as well as amendments, related measures, or implementing measures in force as of the date of this
request.
Legal instrument S.O. 1663(E) imposes import restrictions on the following products:
(a) domestic and wild birds (including poultry and captive birds);
(b) day old chicks, ducks, turkey, and other newly hatched avian species;
(c) un-processed meat and meat products from Avian species, including domesticated,
wild birds and poultry;
(d) hatching eggs;

(e) eggs and egg products (except Specific Pathogen Free eggs);
(f) un-processed feathers;
(g) live pigs;
(h) pathological material and biological products from birds;
(i) products of animal origin (from birds) intended for use in animal feeding or for
agricultural or industrial use; and
(j) semen of domestic and wild birds including poultry.
India's measures have adversely affected expor ts of these products from the United States to
India. The United States considers that India's measures are inconsistent with India's commitments
and obligations under the following provisions of the SPS Agreement and the GATT 1994:
SPS Agreement
1. Article 2.2, because India's avian influe nza measures are not applied only to the
extent necessary to protect human or an imal life or health, are not based upon
scientific principles, and are maintained without sufficient sci entific evidence.
Further, India's measures are not provisional measures within the scope of Article 5.7.
2. Article 2.3, because India's avian influen za measures arbitrarily or unjustifiably
discriminate between Members where similar conditions prevail, including between
India's own territory and that of other Members. For example, while India applies the
avian influenza measures at issue here to imported products, India does not apply
similar avian influenza related controls w ith respect to like domestic products and
their internal movement within India. Fu rther, India has applied its measures in a
manner that constitutes a disguised restriction on international trade.
3. Article 3.1, because India's measures are not based on the relevant international
standards, guidelines, or recommendations of the World Animal Health Organization
("OIE"), nor are India's measures in accordance with Article 3.3 of the SPS
Agreement.
4. Article 5.1, because India's avian influe nza measures, which are not based on the
relevant international standards, are not based upon an assessment, as appropriate to
the circumstances, of the risks to human, an imal, or plant life or health, taking into
account risk assessment techniques devel oped by the relevant international
organizations.
5. Article 5.2, because in failing to make an assessment of risks as appropriate to the
circumstances, India failed to take into a ccount available scientific evidence; relevant
processes and production methods; the prev alence of different types of avian
influenza; the existence of notifiable-avia n-influenza-free areas and high-pathogenic-
notifiable avian-influenza-free areas; relevant ecological and environmental
conditions, and other potential options besides those imposed by its measures.
6. Article 5.5, because India is maintaining arb itrary or unjustifiable distinctions in its
appropriate levels of sanitary protection in different situations, and these distinctions
result in discrimination or a disguised restri ction on international trade. For example

– to the extent transmission of avian influen za by way of U.S. agricultural products is
considered a "different situation" than th e transmission of avian influenza by way of
India's domestic agricultural products – India is maintaining arbitrary or unjustifiable
distinctions in its appropriate levels of san itary protection in different situations, and
these distinctions result in discrimination or a disguised restriction on international
trade.
7. Article 5.6, because India's avian influenza measures are more trade-restrictive than
required to achieve its appropriate level of sanitary protection.
8. Articles 6.1, because India's avian influen za measures are not adapted to the sanitary
characteristics of the area from which U.S. imports originated, and in failing to assess
the sanitary characteristics of particular U.S. areas from which U.S. imports
originated, India has not taken into acco unt disease-free areas or areas of low disease
prevalence, or the existence of eradication or control programs. Moreover, India has
not taken into account the relevant guidelines of the OIE in assessing the sanitary
characteristics of a region.
9. Article 6.2, because India's avian infl uenza measures do not recognize disease-free
areas or areas of low disease prevalence.
10. Article 7, and Annex B, paragraphs 2 and 5(a)-(d), because India has not provided the
information on its avian influenza measur es in accordance with the provisions of
Annex B. India has not notified its avia n influenza measures until well after these
measures have entered into force, to the extent any notification was made whatsoever,
despite the fact that India's avian influen za measures are not substantially the same as
the content of an international standard , guideline, or recommendation and have a
significant effect on the trade of other Members.
India failed to notify other Members, through the Secretariat, of the products to be
covered by the measures along with the objectiv e and rationale of the measures, at an
early stage where amendments could be introduced and comments taken in to
account.
India failed to identify the parts of its avian influenza measures which in substance
deviate from international standards, guidelines, or recommendations.
India failed to publish its avian influenza measures at an early stage in such manner to
enable interested Members to become acquainted with the proposal.
India also failed to allow a reasonable interval between the publication of its
measures and their entry into force.
Further, India's failure to comply with A nnex B, paragraph 5 is not justified by any
urgent problem of health protection that has arisen or threatened to arise for India,
and India has in any event failed to comply with the requirements of Annex B,
paragraph 6.
GATT 1994
11. Article XI, because India's measures constitu te import prohibitions or restrictions
other than duties, taxes, or other charges.

India's measures also appear to nullify or impair the benefits accruing to the United States
directly or indirectly under the cited agreements.
Therefore, the United States respectfully requests, pursuant to Article 6 of the DSU, that the
Dispute Settlement Body establish a panel to examine this matter, with standard terms of reference as
set out in Article 7.1 of the DSU.