UNITED STATES – CERTAIN COUNTRY OF ORIGIN LABELLING (COOL) REQUIREMENTS
Document: ARB-2012-1/26 Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes
Date: 4 December 2012
Document codes: WT/DS384/24; WT/DS386/23
Complainant: Canada
Respondent: U.S.
Third parties: Argentina, Australia, Brazil, China, Colombia, EU, Guatemala, India, Japan, South Korea, Mexico, New Zealand, Peru, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 2.1, 2.2, 2.4  Technical Barriers to Trade (TBT)Art. 2, 5, 7  Sanitary and Phytosanitary Measures (SPS)Art. IX:2, IX, X:3(a)  GATT 1994Art. 2(b), 2(c), 2(e), 2(j)  Rules of Origin

UNITED STATES – CERTAIN COUNTRY OF ORIGIN
LABELLING (COOL) REQUIREMENTS

ARB-2012-1/26

Arbitration
under Article 21.3(c) of the
Understanding on Rules and Procedures
Governing the Settlement of Disputes

Award of the Arbitrator
Giorgio Sacerdoti

AWARD OF THE ARBITRATOR

Parties:

Canada
Mexico
 ARB-2012-1/26

 Arbitrator:

 Giorgio Sacerdoti

United States

I. Introduction
1. This arbitration under Article 21.3(c) of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (the "DSU") concerns the "reasonable period of time" for the
implementation of the recommendations and rulings of the Dispute Settlement Body (the "DSB") in
the disputes .
1 These
disputes concern certain US country of origin la belling ("COOL") requirements for beef and pork
when sold at the retail level.
2. On 23 July 2012, the DSB adopted the Appellate Body Reports 2 and the Panel Reports 3, as
modified by the Appellate Body Reports, in .4 The Panel and Appellate Body Reports found the "COOL measure"
(comprising the "COOL statute" 5 passed by the US Congress, and its implementing regulation, the
"2009 Final Rule"6 issued by the US Department of Agricultu re (the "USDA")), particularly in regard
to the muscle cut meat labels, to be inconsistent with Article 2.1 of the Agreement on Technical
Barriers to Trade (the " TBT Agreement ") because it accords less favourable treatment to imported

1WT/DS384 and WT/DS386.
2WT/DS384/AB/R and WT/DS386/AB/R, issued on 29 June 2012.
3WT/DS384/R and WT/DS386/R.
4WT/DSB/M/320.
5Agricultural Marketing Act of 1946, as amended by the "2002 Farm Bill" and the "2008 Farm Bill"
(60 Stat. 1087, United States Code, Title 7, section 1621 et seq., as amended). (See Appellate Body Reports, US
– COOL, para. 1(a) and footnote 4 thereto)
6Final Rule on Mandatory Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Wild
and Farm-Raised Fish and Shellfish, Perishable Agricultural Commoditie s, Peanuts, Pecans, Ginseng, and
Macadamia Nuts, published in United States Federal Register , Vol. 74, No. 10 (15 January 2009) 2704-2707,
codified as United States Code of Federal Regulations , Title 7, Part 65 – Country of Origin Labeling of Beef,
Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Macadamia Nuts, Pecans, Peanuts, and
Ginseng (Panel Exhibits CDA-5 and MEX-7). In its reports, the Appellate Body referred to the regulations as
the "2009 Final Rule (AMS)". (See Appellate Body Reports, US – COOL, para. 1(b) and footnote 6 thereto)

livestock than to like domestic livestock.
7 The Panel found the Vilsack letter 8 to be inconsistent with
Article X:3(a) of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994").9 The Panel
and the Appellate Body recommended that the DSB request the United States to bring its measures
into conformity with its WTO obligations.
3. In a letter addressed to the Chairman of the DSB, dated 21 August 2012 10, and at the meeting
of the DSB held on 31 August 2012 11, the United States signalled its intention to implement the
recommendations and rulings of the DSB, and stated that it would require a reasonable period of time
to do so.
4. On 13 September 2012, Canada and Mexico info rmed the DSB that consultations with the
United States had not resulted in an agreement on th e reasonable period of time for implementation.
Canada and Mexico therefore requested that such period be determined through arbitration pursuant to
Article 21.3(c) of the DSU. Since the two disputes were examined by the same panel and by the same
Division of the Appellate Body, both Canada and Mexico asked that their requests pursuant to
Article 21.3(c) of the DSU be dealt with by the same arbitrator in joint proceedings.
5. Canada, Mexico, and the United States were unabl e to agree on an arbitrator within 10 days
of the matter being referred to arbitration. Con sequently, by letters dated 26 September 2012, Canada
and Mexico requested that the Director-General of the World Trade Organization (the "WTO")
appoint an arbitrator pursuant to footnote 12 to Article 21.3(c) of the DSU. The Director-General
appointed me as arbitrator on 4 October 2012, after consulting with the parties.
12 I informed the
parties of my acceptance of the appointment by letter dated 5 October 2012 and undertook to issue the
award no later than 4 December 2012.
6. By letters dated 31 October 2012 (Canad a and Mexico) and 2 November 2012 (the
United States), the parties agreed that this awar d will be deemed to be an arbitration award under

7Canada Panel Report, US – COOL , paras. 7.548 and 8.3(b) and Mexico Panel Report, US – COOL ,
paras. 7548 and 8.3(b); Appellate Body Reports, US – COOL, para. 496(a)(iv).
8A letter dated 20 February 2009 from the US Secretary of Agriculture, Thomas J. Vilsack, to "Industry
Representative[s]". (See Appellate Body Reports, US – COOL, para. 1(c))
9Canada Panel Report, US – COOL, paras. 7.864 and 8.4(b); Mexico Panel Report, US – COOL, paras.
7.864 and 8.4(b). This finding was not appealed. Ac cording to the United States, the Vilsack letter was
withdrawn on 5 April 2012, while the appellate proceedings in these disputes were ongoing. (United States'
submission, footnote 2 to para. 3 (referring to Appellate Body Reports, US – COOL, footnote 228 to para. 141,
see also Appellate Body Reports, US – COOL, para. 251)).
10WT/DS/384/19 and WT/DS/386/18.
11WT/DSB/M/321.
12WT/DS384/21 and WT/DS386/20.

Article 21.3(c) of the DSU, notwithstanding th e expiry of the 90-day period stipulated in
Article 21.3(c).13
7. The United States filed its written submission on 12 October 2012. Canada and Mexico each
filed a written submission on 19 October 2012. An oral hearing was held on 1 November 2012.
II. Arguments of the Parties
A. United States
8. The United States contends that a change to the COOL measure could involve legislative
action followed by regulatory action, or could involve only regulatory action. 14 The United States
requests that I determine the "reasonable period of time" for implementation of the recommendations
and rulings of the DSB in these disputes to be no less than 18 months from the date of adoption by the
DSB of the Panel and Appellate Body Reports. Su ch a period is, according to the United States, the
minimum required to make a regulatory modification to the 2009 Final Rule. The United States also
outlines in its submission the necessar y steps to make legislative cha nges to the COOL statute, noting
that such a process would take "substantially more time" than the 18 months requested.
15
9. The United States notes that, as previous arbitrat ors have observed, the 15-month guideline in
Article 21.3(c) of the DSU is not "a fixed maximu m or outer limit for a reasonable period of time",
nor is it "a floor or inner limit".16 The United States further asserts that the word "reasonable" implies
a "degree of flexibility", which entails considerati on of all the circumstances of a particular case. 17
This, in turn, suggests that the reasonable period of time should be defined "on a case-by-case basis,
in the light of the specific circum stances of each investigation". 18 The United States points to the
following specific circumstances that have been iden tified in previous awards as relevant to the
arbitrator's determination of the reasonable period of time: (i) the legal form of implementation;

13WT/DS384/22; WT/DS386/21; WT/DS384/23 and WT/DS386/22. The 90-day period following
adoption of the Panel and Appellate Body Reports expired on 21 October 2012. By letters dated 31 October
2012, Canada and Mexico each confirmed their agreement th at an award issued later than 90 days after the date
of adoption of the recommendations and rulings by the DSB will be deemed to be an award of the arbitrator for
purposes of Article 21.3(c) of the DSU. By letter dated 2 November 2012, the United States also confirmed that
it will deem the award in these proceedings to be an award circulated pursuant to Article 21.3(c) of the DSU.
14United States' submission, para. 5.
15United States' submission, para. 7.
16United States' submission, para. 9 (quoting Award of the Arbitrator, US – Hot-Rolled Steel
(Article 21.3(c)), para. 25).
17United States' submission, para. 9 (quoting Award of the Arbitrator, US – Hot-Rolled Steel
(Article 21.3(c)), para. 25).
18United States' submission, para. 9 (quoting Award of the Arbitrator, US – Hot-Rolled Steel
(Article 21.3(c)), para. 25).

(ii) the technical complexity of the measure that must be drafted, adopted, and implemented; and
(iii) the period of time in which the implementi ng Member can achieve the proposed legal form of
implementation in accordance with its system of government.
19 In addition, the United States notes
that an implementing Member is not required to resort to extraordinar y procedures in achieving
implementation.20
10. At the oral hearing, the United States noted that it seeks to modify the COOL regulations in a
manner that comports with its WTO obligations, while still providing consumers valuable information
about the origin of beef and pork products, an objective that the Appellate Body agreed is legitimate.21
1. Regulatory Change
(a) Regulatory Process in the United States
11. The United States explains that, because the findi ngs of inconsistency relate to a measure
comprising a statute and its implementing regulations 22, it will "at a minimum" be necessary for the
USDA to issue new regulations, either as a stand-alone measure or as a result of statutory
modifications.
23 It notes, in this regard, that rulemaking in the United States "generally consists of at
least six specific steps" 24, and that delays are possible at each of them. It also adds that, in some

19United States' submission, para. 10 (re ferring to Award of the Arbitrator, Canada – Pharmaceutical
Patents (Article 21.3(c)), paras. 48-51).
20United States' submission, para. 10 (referring to Award of the Arbitrator, US – Section 110(5)
(Article 21.3(c)), para. 45, in turn quoting Award of the Arbitrator, Korea – Alcoholic Beverages
(Article 21.3(c)), para. 42)).
21United States' oral statement, referring to Appellate Body Reports, US – COOL, para. 453.
22The Panel and the Appellate Body examined the COOL statute and th e 2009 Final Rule together as
one "COOL measure", but the reports did not specify whether the United States was required to modify one or
both of these instruments in order to come into compliance. (United States' submission, para. 3)
23United States' submission, para. 12.
24United States' submission, para. 14. According to the United States, the six steps are the following:
(1) at least five months for the United States to determine how to
modify the regulations and for the USDA to draft and internally clear the
proposed rule and conduct the regulatory impact and other analyses required
by U.S. law and described by the Appellate Body in its report;
(2) up to 90 days for Office of Management and Budget ("OMB")
review and for interagency clearance of the proposed rule;
(3) publication of a proposed rule in the Federal Register, followed by
a 60 day notice and comment period;
(4) at least two months for USDA to review the comments, determine
how to respond to them, and revise the proposed rule, taking into account
the comments received;
(5) up to 90 days for OMB review and interagency clearance of the
final rule; and
(6) publication.
(Ibid, para. 15)

circumstances, it might be necessary to include additional steps, such as where comments received
during the rulemaking process merit changes that in turn require additional public input.25
12. The United States notes that any new regulations will be issued by the USDA pursuant to,
inter alia , the Administrative Procedure Act 26 (the "APA") and Executive Order 12866 27, which
together require agencies to undertake a "lengthy and multifaceted rulemaking process" in order to
modify federal regulations.28 According to the United States, ta king into account the requirements of
the APA and Executive Order 12866, and the particul ar complexities of compliance in this case, the
"quickest time-frame" within which the United States would normally be able to complete all of the
necessary steps to publish a modified final rule would be at least 12 months. 29 The United States
further submits, that because the COOL measure is a technical regulation within the meaning of
Annex 1.1 to the TBT Agreement, the United States would be required to provide at least six months
between the publication of the modified regulation a nd its entry into force, according to Article 2.12
of the TBT Agreement, as clarified by the Appellate Body in US – Clove Cigarettes.30 The 18-month
timetable suggested by the United States is summarized below.
13. First, the United States contends that it will need at least 12 months to complete the
US regulatory process. It notes, in this regard, that, given the technical complexities of the
COOL measure, it will require, at the outset, a peri od of at least five months to conduct discussions
and review options, to build and organize the broad support necessary for modifications to the
COOL regulations, and to prepare a draft rule for internal clearance. 31 In this respect, the
United States stresses that past Article 21.3(c) arbitral awards, such as in Canada – Autos or Canada –
Pharmaceutical Patents , have consistently recognized that the preparatory phase is essential for
successful compliance.32

25United States' submission, para. 14.
26United States Code, Title 5, section 551 et seq. (See Exhibits CDA-21 and MEX-1)
27Executive Order 12866 of 30 September 1993, United States Federal Register , Vol. 58, No. 190.
(Exhibit US-27).
28United States' submission, para. 13.
29United States' submission, para. 15.
30United States' submission, paras. 13 and 15 (referring to Appellate Body Report, US – Clove
Cigarettes, para. 288).
31United States' submission, para. 16.
32United States' submission, para. 17 (referring to Award of the Arbitrator, Canada – Autos
(Article 21.3(c)), paras. 18, 49, 50, and 56; and Award of the Arbitrator, Canada – Pharmaceutical Patents
(Article 21.3(c)), paras. 1, 14, and 62). The United States also referred to Awar d of the Arbitrator, US –
Hot-Rolled Steel (Article 21.3(c)) , para. 38; Award of the Arbitrator, Chile – Alcoholic Beverages
(Article 21.3(c)), para. 43.

14. Following the necessary preparatory work, the Un ited States would then begin the process of
modifying the 2009 Final Rule, which is governed by the APA and Executive Order 12866, among
others.
33 The APA outlines the basic requirements that agencies must respect when engaging in
rulemaking. It provides for the publication of proposed rules in the Federal Register and affords the
public at least 60 days to present comments on such rules. 34 According to the United States, the
USDA would require at least two months to revi ew those comments, determine how to respond to
them, and revise the proposed rule in the light of the comments received. 35 The APA also requires the
agency to publish the final rule in the Federal Register, providi ng for at least 30 days between its
publication and entry into force.36
15. The United States explains that, Executive Order 12866 governs the process of internal
governmental review of all regulations that have a significant economic impact, requiring that certain
steps be taken with respect to these regula tions. For instance, Executive Order 12866 requires
agencies to conduct a detailed regulatory impact analys is with regard to significant rules, and to
include this analysis in both the proposed and final rule. 37 It also requires agencies to submit
regulatory actions to the Office of Management an d Budget (the "OMB") for review, classification,
and/or clearance prior to their publication in the Federal Register. The OMB has up to 90 calendar
days to review each proposed rule. Once OMB and interagency clearance is obtained, the rule is
submitted for publication in the Federal Register.38
16. The United States further notes that agencies must also conduct a number of regulatory
analyses when promulgating economically significant rules.39 Under the Regulatory Flexibility Act 40,
for example, agencies contemplating rulemaking must evaluate the impact of a potential regulation on
small entities. The statute requires agencies to pr epare highly detailed analyses and to make them
available for public comment.41 The United States also stresses that economically significant rules are
subject to Congressional review unde r the Congressional Review Act 42 (the "CRA"). Indeed, the
CRA requires that agencies submit all final rul es to each House of Congress and the Comptroller

33United States' submission, para. 18.
34United States' submission, para. 19. This time period gives interested parties the opportunity to
participate in the rulemaking process by providing written data, views, or arguments. (Ibid.)
35United States' submission, para. 15(4).
36United States' submission, para. 19 (referring to APA, section 553(d)).
37United States' submission, para. 21.
38United States' submission, para. 22.
39The United States notes that the COOL regulations were classified as " economically significant"
because they have an annual effect on the economy of $100 million or more. (United States' submission,
footnote 28 to para. 23)
40United States Code, Title 5, sections 601-612 (Exhibit US-6).
41United States' submission, para. 23 (referring to Regulatory Flexibility Act (Exhibit US-6)).
42United States Code, Title 5, section 801 et seq. (Exhibit US-4).

General in the General Accounting Office (the "GAO") for review before such rules can take effect. 43
Moreover, any major rule44 may not enter into effect until 60 cal endar days after its publication in the
Federal Register in order to allow Congress suffici ent time to review and potentially invalidate a
regulation.45
17. During the oral hearing, the United States reject ed Canada's and Mexico's argument that the
United States could exercise the "good cause" excep tion under the APA and bring a regulation into
effect immediately using an interim final rule. First, the United States contended that arbitration
awards should not be based on extraordinary procedures. Second, it noted that the good cause
exception is only available where public procedur es are impracticable, unnecessary, or contrary to
public interest46, circumstances not present in this case. The United States also pointed out that the
2008 Interim Final Rule 47 for COOL was issued using the good cause exception because the
COOL statute established a specific effective date, which, absent any rulemaking, created significant
uncertainty that market participants could have been subject to potential sanctions despite the fact that
they had no way of knowing how to comply with the law.48
18. In addition, the United States recalls that th e COOL measure was found to be a technical
regulation within the meaning of Annex 1.1 to the TBT Agreement and, hence, subject to the
requirements set forth in Article 2 of the TBT Agreement.49 In this regard, it notes that Article 2 of the
TBT Agreement prescribes a number of obligations, notably in paragraphs 9.1, 9. 2, 9.3, and 9.4.
These provisions require Members adopting technical regulations where international standards do not
exist or in cases where a proposed regulation is no t in accordance with the technical contents of
relevant international standards to do the following 50: (i) publish a notice of the proposed regulation
at an early appropriate stage 51; (ii) provide notification to other Members through the Secretariat of
the products to be covered, together with a brief indication of its objective and rationale 52; (iii) upon

43United States' submission, para. 24 (referring to CRA Exhibit US-4)).
44The United States submits that the COOL regulations are both "economically significant" and
"major". (United States' submission, footnote 33 to para. 24)
45United States' submission, para. 24 (referring to CRA, section 801(a)(3)(A)(ii) (Exhibit US-4)).
46United States' oral statement, referring to APA, section 553(b).
47In its reports, the Appellate Body referred to the interim final rule as the "2008 Interim Final Rule
(AMS)".
48The United States added that interim final rules are not used, generally speaking, for significant
rulemaking, which raises important legal and policy issues, unless there is a statutory deadline.
49United States' submission, para. 25 (referring to Appellate Body Reports, US – COOL, para. 239 and
footnote 371 thereto; and Panel Reports, US – COOL, para. 7.216).
50Article 2.9 of the TBT Agreement further specifies that these requ irements apply "if the technical
regulation may have a significant effect on trade of other Members". (See United States' submission, footnote 36
to para. 25)
51Article 2.9.1 of the TBT Agreement.
52Article 2.9.2 of the TBT Agreement.

request, provide copies of the proposed regulation to other Members and, whenever possible, identify
the parts which in substance deviate from relevant international standards
53; and (iv) without
discrimination, provide the opportunity for inter ested Members to make comments in writing and
discuss them on request, as well as to take these wr itten comments and the results of the discussions
into account.54 These requirements, the United States submits, generally complement US domestic
requirements and "will be followed in the development of any regulation".55
19. Second, the United States observes that Article 2.12 of the TBT Agreement provides that,
"[e]xcept in those urgent circumst ances referred to in paragraph 10 [*], Members shall allow a
reasonable interval between the publication of technical regulations and their entry into force in order
to allow time for producers in exporting Members, and particularly in deve loping country Members,
to adapt their products or methods of productio n to the requirements of the importing Member". 56 In
this regard, the United States recalls that, in US – Clove Cigarettes , the Appellate Body found that
paragraph 5.2 of the Doha Minist erial Decision of 14 November 2001 57 "provides interpretative
clarification of the concept of a 'reasonable in terval' within the meaning of Article 2.12 by
establishing a rule that producers in exporting Members require a period of at least six months to
adapt their products or production methods to the requirements of the importing Member's technical
regulation".58 Thus, the United States contends that, cons istent with the Appellate Body's finding in
US – Clove Cigarettes, it will have to allow for an additional period of at least six months between the
publication and notification of the modified COOL regulations and their entry into force.59
20. In the light of the above, the United States contends that the legal form of implementation will
require a reasonable period of time of at least 18 months, which encompasses 12 months to complete
the US regulatory process in accordance with US la w and the obligations under Article 2.9 of the
TBT Agreement, plus another six months due to the proce dural requirement in Article 2.12 of the
TBT Agreement.

53Article 2.9.3 of the TBT Agreement.
54Article 2.9.4 of the TBT Agreement.
55United States' submission, para. 25.
56United States' submission, para. 27 and [*] original footnote 42, which reads:
Article 2.10 of the TBT Agreement provides that "… where urgent problems of
safety, health, environmental protection or na tional security arise or threaten to arise
for a Member, that Member may omit such of the steps enumerated in paragraph 9 as
it finds necessary…". None of these urgent circumstances are relevant in the context
of making modifications to the COOL regulations".
57Doha Ministerial Decision on Implementation- Related Issues and Concerns, Decision of
14 November 2001, WT/MIN(01)/17, para. 5.2.
58United States' submission, para. 27 (quoting Appellate Body Report, US – Clove Cigarettes ,
para. 288). (emphasis added by the United States)
59United States' submission, para. 28.

(b) Technical Complexity of the Measure
21. The United States further submits that the techni cal complexity of the measure that will be
taken to comply also supports a reasonable period of time of at least 18 months. In this regard, it first
stresses that the COOL implementing regulations "alone are 49 pages long" and contain "detailed
rules" regarding when, where, and how to labe l covered commodities, including certain exceptions
and flexibilities affecting entities throughout the entire supply chain. 60 The 2009 Final Rule also
includes record-keeping requirements, enforcemen t provisions, and a rigorous regulatory impact
analysis that examines the impact of the rule on various market actors and on the US economy as a
whole.61
22. Further, the United States recalls that the Appellate Body found the COOL measure to modify
the conditions of competition to the detriment of imported livestock. 62 The Appellate Body then
concluded that such a detrimental impact reflected discrimination, noting that "the informational
requirements imposed on upstream producers under the COOL measure are disproportionate as
compared to the level of information communica ted to consumers through the mandatory retail
levels".63 In making this determination, the Appella te Body cited numerous aspects of the COOL
measure, including: (i) the fact that labels do not precisely specify where the animals were born,
raised, and slaughtered; (ii) the commingling pr ovisions included in the 2009 Final Rule; (iii) the
flexibility provided between Category B and Category C labels; (iv) the record-keeping requirements;
(v) the exceptions for processed foods, restaurants, and small retailers; and (vi) the fact that Category
D labels must list only the country of import.
64 In the United States' view, a determination of whether
and how to modify each of these different aspects is necessary in order to draft a modified measure,
but it will be "a very difficult task requiring a significant amount of analysis".
65 In addition, the
United States maintains that it will need time to develop an approach that accounts for the Appellate
Body's "novel" test, which suggests that th e USDA will need to consider the overall
"evenhandedness" of any new measure, including whether the information requirements are
"proportional".66

60United States' submission, para. 29 (referring to 2009 Final Rule (Panel Exhibits CDA-5 and
MEX-7)).
61United States' submission, para. 29.
62United States' submission, para. 31 (referring to Appellate Body Reports, US – COOL, para. 292).
64United States' submission, para. 31 (referring to Appellate Body Reports, US – COOL , paras. 242-
244, 246, 260, 292, and 336-338).
65United States' submission, para. 32.
66United States' submission, para. 33.

(c) Additional Considerations
23. In the United States' view, additional consid erations support the granting of a reasonable
period of time of at least 18 months. First, the United States submits that the significant interest in
country of origin labelling that has historica lly been expressed—by, for instance, Members of
Congress, industry groups, and non-governmental organizations such as consumer advocacy groups—
"cannot be overstated".
67 It notes, in this respect, that th e COOL measure was enacted after a long
and involved legislative and regulatory process, which "spanned more than 10 years from the time
that Congress began considering the measure". 68 Second, the United States adds that, even in the
absence of legislation, the Administration will need to consult with Congress, which has a formal
review role under the CRA and the ability to i nvalidate regulations adopted by the Executive
Branch.69 Finally, the United States contends that th e elections to be held on 6 November 2012 may
also affect the time needed to comply. 70 With respect to these three c onsiderations, the United States
notes that, while the suggested 18-month timetable takes into consideration the volume of comments
expected in response to a proposed rule, it does not account for time needed to address actions that
Congress may wish to take while a rule is being de veloped, or for any additional time that may be
needed as a result of the elections.71
2. Legislative Change
24. The United States notes that, if it chooses to comply with the DSB's recommendations and
rulings by modifying the COOL statute, it would also need to modify the 2009 Final Rule
accordingly. Consequently, the overall time that it would need to comply would be "substantially
longer than 18 months". 72 The United States explains that, as a general matter, the US Constitution
confers the power to legislate on Congress, which is composed of the House of Representatives (the
"House") and the Senate. Both chambers must approve all legislation in identical form before it is
sent to the President of the United States for signature or other action.73
25. Turning to the legislative process, the United Stat es explains that a bill, after its introduction
in the House or the Senate by a member of Congr ess or by the Executive branch, is generally referred

67United States' submission, para. 35.
68United States' submission, para. 35 (referring to Un ited States' first written submission to the Panel,
paras. 26-33, 67, and 68).
69United States' submission, para. 36.
70United States' submission, para. 37.
71United States' submission, paras. 35-37.
72United States' submission, para. 38.
73United States' submission, para. 39 (referring to Exhibit US-16, sections 1 and 7, and Exhibit US-17,
p. 42).

to the committee or committees of jurisdicti on for consideration of the bill's merits. 74 Most bills are
then referred to a subcommittee, which will schedule public hearings to hear the opinions of interested
parties. If the subcommittee recommends that the legi slation move forward, it will then be to the full
committee for a vote on whether to re port the bill to the full House. 75 A bill that is finally adopted by
the full House must be referred to the Senate, a cham ber that proceeds according to its own legislative
process.76 In the Senate, debate is "rarely restricted " and an individual Senator may "filibuster" or
place a "hold" on legislation, which can prevent it from being considered. 77 The Senate will amend
the bill or pass its own version of it, in which case a "conference committee" must reconcile the
differences between the House and Senate versi ons. Once the bill proposed by the conference
committee is approved by both chambers, it can be sent to the President for approval.78
26. With regard to the timeline for legislation, the United States notes that the US Congress sets
its own procedures and timetable, over which the Executive branch has no control, and that the
process of obtaining the votes necessary to enact legislation is "difficult and time consuming". 79 As a
consequence, "only a small fraction of the thousa nds of bills introduced in each Congress become
law", and for those bills that do become la w, the time-frame "is generally very long". 80 T h e
United States further notes that the Congressional sc hedule is a relevant factor determining when a
bill becomes law. A Congress lasts two years, and meets in two sessions of one year each, beginning
in January. However, the adjournment date varies. 81 Moreover, because of the "intricate schedules
and calendars, as well as recesses", Congress is ofte n present and in session only three days a week.
In this regard, the United States refers to a past arbitrator's statement that, in the light of the
Congressional schedule, a reasonable period of time of 10 months was not sufficient. 82 Finally, the
United States highlights that the timing of a bill's introduction is also "critical". Indeed, legislation
introduced in the second session of Congress without passage "dies at the end of that session" and a
new bill will have to be reintroduced at the beginning of the next session. According to the
United States, this would be the case for a bill intr oduced in the next few months. Unless the new bill

74United States' submission, paras. 40 and 41.
75United States' submission, para. 41.
76United States' submission, paras. 42 and 43.
77United States' submission, para. 43.
78United States' submission, para. 44.
79United States' submission, para. 45.
80United States' submission, para. 45.
81For this year, the Senate has not yet announced its adjournment date, while the House has set a
tentative date of 14 December 2012. (United States' submission, para. 47 (referring to House Legislative
Calendar, 112th Congress, 2nd Session (Exhibit US-25)))
82United States' submission, para. 47 (referring to Award of the Arbitrator, US – Section 110(5)
(Article 21.3(c)), para. 45).

is passed before the end of December 2012, the United States contends that work will have to restart
from the beginning, when the 113th Congress convenes in January 2013.
83
3. Conclusion
27. The United States asserts that it intends to brin g the COOL measure into compliance with the
DSB's recommendations and rulings through either legislative action followed by regulatory action, or
through regulatory action alone. 84 In the latter scenario, "the shortest period of time" in which the
DSB's recommendations and rulings could be im plemented is, according to the United States,
18 months. This is so in the light of the "leg al form which modification will have to take, the
technical complexity of the measure itself, a nd the added procedural requirements for adopting
technical regulations". 85 In the United States' view, a shor ter period would be "inadequate and
unreasonable".86 If the United States makes statutory ch anges to bring the COOL measure into
compliance, the entire process would take "substantially longer than 18 months".87
B. Canada
28. Canada requests that I determine the "reasonabl e period of time" for implementation of the
recommendations and rulings of the DSB in this disp ute to be no more than six months from the date
of adoption of the Panel and Appellate Body Re ports by the DSB, comprising two months for
preparatory work and four months to put the measure into force.88
29. Canada submits that Article 21.3(c) of the DSU must be interpreted in its context and in the
light of the object and purpose of the DSU. 89 In this regard, Article 21.1 of the DSU states that
"prompt compliance with recommendations or rulings of the DSB is essential in order to ensure
effective resolution of disputes to the benefit of a ll Members"; Article 3.7 of the DSU provides that
"the first objective of the dispute settlement mech anism is usually to secure withdrawal" of WTO-
inconsistent measures; and Article 3.3 of the DSU likewise underscores the importance of swift
implementation for the settlement of WTO disputes.90 Canada also notes that Article 21.3 of the DSU
indicates that a "reasonable period of time" fo r implementation is available only if it is

83United States' submission, para. 48.
84United States' submission, para. 5.
85United States' submission, para. 49.
86United States' submission, para. 49.
87United States' submission, para. 6.
88Canada's submission, para. 3.
89Canada's submission, para. 4 (referring to Award of the Arbitrator, EC – Hormones (Article 21.3(c)),
para. 26).
90Canada's submission, paras. 4 and 5.

"impracticable" for a Member to comply immediat ely with the DSB's recommendations and rulings. 91
In Canada's view, the United States has failed to demonstrate why immediate compliance is
impracticable in this case.92
30. Canada recalls that previous arbitral awards have clearly established that, where immediate
compliance is impracticable, the implementing Member bears the burden of proving that its proposed
time for implementation constitutes a "reasonable period of time"
93, and that "the longer the proposed
period of implementation, the greater this burden will be". 94 Previous arbitrators have emphasized
that the reasonable period of time should be the "shor test period possible within the legal system of
the Member to implement the reco mmendations and rulings of the DSB"95, and that the implementing
Member must use whatever flexibility is available wi thin its legal system to implement promptly the
DSB's recommendations and rulings. 96 Further, although it is up to the United States to select the
means of implementation, Canada recalls that "this discretion is not unfettered". 97 Implementation
means "must be apt in form, nature , and content to effect compliance" 98 and must "fall[] within the
range of permissible actions that can be taken in order to implement the DSB's recommendations and
rulings".99 In addition, Canada notes that Article 21.3( c) of the DSU establishes that the reasonable
period of time for implementation should not exceed 15-month from the date of adoption of a panel or
Appellate Body report, and that it is therefore for the United States to show that the circumstances in
the present case are "so extraordinary" that they ju stify a deviation from the 15 months guideline. In
Canada's view, the circumstances of this disput e "do not justify the application of the maximum
period of time, let alone a longer period".100

91Canada's submission, para. 6 (quoting Award of the Arbitrator, Colombia – Ports of Entry
(Article 21.3(c)), para. 62).
92Canada's submission, para. 6.
93Canada's submission, para. 7 (referring to Award of the Arbitrator, Colombia – Ports of Entry
(Article 21.3(c)), para. 67, in turn quoting Award of Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) ,
para. 28, (in turn referring to Award of the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)) ,
para. 47; and Award of the Arbitrator, US – 1916 Act (Article 21.3(c)), para. 33)).
94Canada's submission, para. 7 (quoting Award of the Arbitrator, Canada – Pharmaceutical Patents
(Article 21.3(c)), para. 47).
95Canada's submission, para. 8 (quoting Award of the Arbitrator, EC – Hormones (Article 21.3(c)) ,
para. 26).
96Canada's submission, para. 8 (referring to Award of the Arbitrator, Colombia – Ports of Entry
(Article 21.3(c)), para. 65).
97Canada's submission, para. 9 (referring to Award of the Arbitrator, EC – Export Subsidies on Sugar
(Article 21.3(c)), para. 69).
98Canada's submission, para. 9 (quoting Award of the Arbitrator, Colombia – Ports of Entry
(Article 21.3(c)), para. 64).
99Canada's submission, para. 9 (quoting Award of the Arbitrator, Japan – DRAMs (Korea)
(Article 21.3(c)), para. 27).
100Canada's submission, para. 10.

31. Canada notes that the United States is still considering whether to implement the DSB's
recommendations and rulings through statutory or regulatory action, or through a combination of the
two.
101 Although Canada is of the view that regulat ory change alone is unlikely to suffice, it
acknowledges that "this arbitration is not the pro cedure to determine whether regulatory change can
end the violation" of Article 2.1 of the TBT Agreement . Canada considers, however, that the
United States could end such violation by means of new legislation, which can be passed within
six months and would make any regulatory change unnecessary under US law. Alternatively, if the
United States were to make regulatory changes only, Canada submits that such changes "could also be
accomplished within six months from 23 July 2012".102
1. Regulatory Change
(a) Regulatory Process in the United States
32. Canada asserts that a regulatory change can be implemented in the United States within six
months, and that the United States' submission fa ils to mention relevant flexibilities that are
available.103 Canada considers that a five-month peri od for preparatory work is "unreasonable". 104
Canada contends that, contrary to the United States' assertion that the technical complexities of the
COOL measure require a period of at least five months to conduct discussions and review options 105,
"there is little complexity involved" in withdrawing the measure at issue, which is "the first objective
of the [WTO's] dispute settlement mechanism". 106 Withdrawal would simply involve "removing
muscle cuts of pork and beef from the commodities covered by the COOL measure". 107 Canada also
submits that, since the five-month period for preparatory work is not fixed by either law or regulation,
the United States "bears a greater burden of proof in demonstrating this period's accuracy and
legitimacy".108 In Canada's view, the United States has failed to meet such a burden. Moreover,
according to Canada, the two arbitral awards relied upon by the United States in its submission do not
support the United States' request of five months for preparatory work. 109 In Canada's view, it is
appropriate to allot a period of 60 days from the da te of adoption of the Pa nel and Appellate Body

102Canada's submission, para. 20.
103Canada's submission, heading to section V.B.
104Canada's submission, heading to section III.A.
106Canada's submission, para. 11 (quoting Article 3.7 of the DSU).
107Canada's submission, para. 11.
108Canada's submission, para. 12 (referring to Award of the Arbitrator, Canada – Pharmaceutical
Patents (Article 21.3(c)), para. 55).
109Canada's submission, paras. 13 and 14 (referring to United States' submission, para. 17 (in turn
referring to Award of the Arbitrator, Canada – Autos (Article 21.3(c)), paras. 18, 49, 50, and 56; and Award of
the Arbitrator, Canada – Pharmaceutical Patents (Article 21.3(c)), paras. 1, 14, and 62)).

Reports for preparatory work. After this period, the United States "is expected to speedily proceed
with the legal process necessary to bring the measures found to be inconsistent into conformity".110
33. Canada notes that the United States describes the APA as "the primary source" governing the
US rulemaking process, affording the public at least 60 days to provide comments on the rules. 111
However, the United States fails to mention the possibility of introducing any required regulatory
change through an "interim final rule", which is also provided for in the APA. Canada contends that
interim final rules are commonly adopted by fede ral agencies and become effective without prior
notice or public comment. The public is invited to comment after the rules are published and become
operative.112 If the public comments persuade the agen cy that changes are n eeded, the agency may
revise the interim final rule and publish a final rule reflecting those changes. 113 Canada observes that
the APA establishes that a notice of proposed rulema king is to be published in the Federal Register
except "when the agency for good cause finds […] that notice and public procedure thereon are
impracticable unnecessary, or contrary to the public interest". 114 According to Canada, although there
is no explicit reference to interim final rulemaki ng in the APA, final rules are adopted under this
"good cause" exception. 115 Canada emphasizes that the C OOL regulations themselves initially
entered into force through the publication of in terim final rules pursuant to this exception. 116
Therefore, Canada contends that interim final ru les, which are frequently used by US agencies,
represent a "readily available means" through which regulatory action implementing the DSB's
recommendations and rulings can be put in place.
117
34. Canada recalls the United States' statement th at "Executive Order 12866 is another primary
source of domestic law governing the U.S. regulat ory process", which sets forth various requirements
that must be fulfilled. 118 Most of these "requirements", however, are only triggered if a regulation
qualifies as "significant regulatory action". 119 Although the United States seems to imply that,
because the regulations implementing the COOL measure were classified as "significant", a regulation
that implements the DSB's recommendations and ruli ngs will also be "significant", such reasoning is,

110Canada's submission, para. 14 (quoting Award of the Arbitrator, Colombia – Ports of Entry
(Article 21.3(c)), para. 81).
112Canada's submission, para. 49 (referring to Exhibit CDA-19, p. 704).
113Canada's submission, para. 49 (referring to Exhibit CDA-20, p. 7).
114Canada's submission, para. 50 (quoting APA, section 553(b)(3)(B) (Exhibit CDA-21)).
115Canada's submission, para. 50 (referring to Exhibit CDA-22).
116Canada's submission, para. 51 (referring to Panel Exhibit CDA-3).
117Canada's submission, para. 52.
118Canada's submission, para. 53 (quoting United States' submission, paras. 21 and 22).
119Canada's submission, para. 54 (quoting Executive Order 12866, section 6(a)(3)(B) (Exhibit US-27)).

in Canada’s view, "illogical".
120 A regulatory change to implement the DSB's recommendations and
rulings would only apply to rules on muscle cuts for beef and pork, hence "the scope of the rule would
be a small fraction of those earlier rules". 121 Even assuming that in this case the implementing
regulatory measure qualifies as a "significant rule" under Executive Order 12866, Canada stresses that
the Order contains significant flexibilities that can facilitate prompt compliance by the United
States.122 Canada notes that Executive Order 12866 urges agencies to develop their regulatory actions
in a timely manner 123, and explicitly authorizes the Administrator of the Office of Information and
Regulatory Affairs (the "OIRA") of the OMB to wa ive the steps that the United States inaccurately
describes as requirements. 124 Furthermore, the 90-day period that the OMB has to review each
proposed rule is, according to Canada, the maximum period.125 Therefore, these 90 days should be
disregarded for the purpose of establishing the reasonable period of time.
35. Canada further recalls the United Stat es' statement that under the CRA "any major rule may
not go into effect for 60 calendar days after its publ ication in the Federal Register in order to allow
Congress sufficient time to review and potentially invalidate a regulation". 126 However, according to
Canada, the United States has not demonstrated that the implementing measure is likely to be a
"major rule" under the CRA.
127 Even assuming that the implementing measure does qualify as a
major rule, Canada contends that the CRA's requirement that 60 days must elapse between publication
and entry into force does not warrant the addition of more than six months. 128 Further, Canada notes
that interim final rules seem to be exempt from the Regulatory Fl exibility Act's obligation to conduct
an initial regulatory flexibility analysis. 129 In addition, Canada submits, the requirements of the
Unfunded Mandates Reform Act of 1995 130 to make "qualitative and qua ntitative assessments of the
anticipated costs and benefits to State, local, and tribal governments" 131 appear to apply only to rules

120Canada's submission, para. 54 (referring to United States' submission, footnote 28 to para. 23).
121Canada's submission, para. 54.
122Canada's submission, paras. 56 and 59.
123Canada's submission, para. 57 (quoting Executive Order 12866, section 6(3) (Exhibit US-27)).
124Canada's submission, para. 57.
127Canada's submission, para. 62.
128Canada's submission, para. 64.
129Canada's submission, para. 66 (referring to Regulatory Flexibility Act (Exhibit US-6)).
130United States Code, Title 2, section 501 et seq. (Exhibit CDA-25).

that enter into force after the publication of a notice of a proposed rulemaking 132—a requirement from
which interim final rules are exempt.133
36. Finally, Canada notes that the Uruguay Round Agreements Act 134 (the "URAA") provides a
legal framework that imposes obligations under US law on the United States Trade Representative to
coordinate the implementation of WTO panel and Appellate Body reports that are adverse to
the United States.135 In this regard, Canada recalls that, in a previous arbitration, the United States
itself argued that the process under Section 123 of the URAA would require approximately
nine months, which would be reduced to seven m onths under normal circumstances, for example, in
a year without elections.136
37. Canada submits that the TBT Agreement does not require that additional time be added to the
reasonable period of time. According to Canada, "simply because part of the COOL measure was
found to be a technical regulation does not me an that the United States will pursue compliance
through a technical regulation". The preferred comp liance means would be to repeal those elements
of the COOL measure that violate Article 2.1 of the TBT Agreement .137 Even assuming that the
United States seeks implementation through a technical regulation, its reliance on Article 2 of the
TBT Agreement to support the granting of an extended reas onable period of time is, in Canada's view,
"misplaced".138
38. With respect to Article 2.9 of the TBT Agreement, Canada notes that this provision does not
specify any minimum period of time required to comply with the notification and transparency
obligations contained therein. Moreover, the United States has failed to show that the two criteria that
trigger such obligations—namely: (i) that no releva nt international standard exists or the technical
regulation is not in accordance with the relevant inte rnational standard; and (ii) that the technical
regulation may have a significant effect on trade of other Members—are likely to be met by the
implementing measure.
139

132Canada's submission, para. 67 (referring to Unfunded Mandates Reform Act of 1995
(Exhibit CDA-25)).
133Canada's submission, para. 67 (referring to Exhibit CDA-19).
134Public Law No. 103-465, 108 Stat. 4809 (1994), United Sates Code , Title 19, section 3501 et seq.
(Exhibit CDA-1).
135Canada's submission, para. 68 (referring to the Uruguay Round Agreements Act, sections 123(f) and
123(g) (Exhibit CDA-1)).
136Canada's submission, para. 68 (referring to Award of the Arbitrator, US – Stainless Steel (Mexico)
(Article 21.3(c)), para. 56).
137Canada's submission, para. 41.
138Canada's submission, para. 42.
139Canada's submission, para. 43.

39. As regards Article 2.12 of the TBT Agreement , Canada contends that the United States'
position reveals "a deeply flawed understa nding" of the Appellate Body report in US – Clove
Cigarettes.
140 There is no obligation to allow for a period of six months between the publication and
the entry into force of a technical regulation wh ere, as the case is here, producers in exporting
Members do not need to adapt their products or me thods of production to the technical regulation's
requirements.141 In Canada's view, since the COOL measure applies to retail outlets within the United
States, "any changes to the labelling requirement s of meat derived from cattle and hogs will not
require that producers adapt their production methods in foreign countries." 142 Lastly, Canada
submits that the notion that Article 2 of the TBT Agreement can be relied upon to frustrate the prompt
settlement of disputes required by Article 3.3 of the DSU may have "far reaching, systemic
implications" and hence should be "greeted with scepticism".143
(b) Additional Considerations
40. In Canada's view, the United States' argument th at stakeholders' significant interest in country
of origin labelling supports a reasonable period of time of at least 18 months should be rejected. 144
Canada submits that the history of the COOL meas ure's enactment is irrele vant for determining the
period of time for implementation, and adds that past arbitrators have not been persuaded that
"contentiousness" should be considered when determining a reasonable period of time. 145 Therefore,
Canada submits, the "interest in" or the "contentiousness of" the COOL measure should not factor into
the assessment of a reasonable period of time for implementation in the present case.
41. Canada also contends that the Unite d States' delay in implementing the
DSB's recommendations and rulings to date favours a short reasonable period of time. 146 Canada
notes that, according to previous arbitrators under Article 21.3(c) of the DSU, an implementing
Member's inaction or insufficient action in the fi rst months following adopti on of the panel and/or
Appellate Body report "bears on the analysis of the reasonable period of time". 147 In Canada's view,
the lack of any details regarding preparatory work in the United States' submission "gives reason for

140Canada's submission, para. 40.
141Canada's submission, paras. 44 and 45 (referring to Appellate Body Report, US – Clove Cigarettes ,
para. 282).
143Canada's submission, para. 46.
145Canada's submission, para. 18 (referring to Award of the Arbitrator, US – Gambling
(Article 21.3(c)), para. 48).
146Canada's submission, heading to section III.B.
147Canada's submission, para. 16 (referring to Award of the Arbitrator, Chile – Price Band System
(Article 21.3(c)), para. 43).

doubt that adequate implementation ef forts have been undertaken to date ". This in turn suggests that
a short reasonable period of time is appropriate in this case.148
2. Legislative Change
42. Canada contends that, contrary to what the United States argues, legislative and regulatory
changes do not have to occur sequentially. An ame ndment to the COOL statute could be drafted to
become effective immediately, and the amended statute would prevail over the conflicting COOL
regulations.149 Canada asserts that, under US law, stat utory amendments "have real and substantial
effect"150 and become enforceable laws either immediat ely upon passage or at the time specified by
Congress in the particular legislation. 151 Once enforceable or operational, the new statutory
provisions will prevail in case of conflict between the statute and existing agency regulations. 152
Accordingly, Canada submits, the United States' insistence that any legislative change must be
accompanied by a regulatory change "ignores the reality that an amended COOL statute would
necessarily trump the existing COOL regulations".
153
43. Canada also contends that the required legi slative change can be implemented within
six months. In its view, the United States' ar gument that the passage of any amendment would
necessarily involve a complex and lengthy legisl ative process lacks any basis, because the
US Congress can take the necessary legal steps within a short period of time. 154 Canada first notes
that the draft Federal Agricultural Reform and Risk Management Act of 2012 (the "2012 Farm Bill")
can serve as a suitable legislative vehicle to im plement statutory changes to the COOL statute. 155
According to Canada, the US Congress faces tremendous pressure either to pass a new Farm Bill or to
agree to extend the 2008 Farm Bill by the end of th is year, and a failure to do either will create
enormous repercussions in the market. 156 Irrespective of the route Congress chooses to take, Canada
considers that "substantive modifications to the COOL statute could be included."157
44. Canada points to two recent examples showing that the US Congress can pass legislation in a
short period of time. First, the legislation ame nding the Federal Food, Drug, and Cosmetic Act was

148Canada's submission, para. 16.
149Canada's submission, para. 21.
150Canada's submission, para. 22 (referring to Exhibit CDA-2, p. 397, and Exhibit CDA-3, p. 128).
151Canada's submission, para. 22 (referring to Exhibit CDA-4, sections 245 and 247).
152Canada's submission, para. 23 (referring to Exhibit CDA-6).
153Canada's submission, para. 24.
154Canada's submission, para. 27.
155Canada's submission, para. 28.
156Canada's submission, para. 29.
157Canada's submission, para. 29.

introduced in the Senate on 15 May 2012 and the Pr esident was able to sign it into law on 9 July
2012, which means that the bill was passed within two months.
158 Similarly, on 29 June 2012, the
Temporary Surface Transportation Extension Act of 2012 was introduced in the House and Senate,
passed by both chambers, and signed by the President all in the same day. 159 Canada recalls that, if
Congress passes a Farm Bill with properly-drafted am endments to the COOL statute, the USDA does
not need to modify the COOL regulations in order to comply with the recommendations and rulings
of the DSB, and that, in any event, regulatory modifications can be made after the statutory
amendments become effective.
160 In addition, Canada notes that previous arbitral awards have
recognized that the US legislative process lacks stringent timelines a nd has "great flexibility to pass
legislation in a rapid manner if there is political will to do so". 161 Bearing this in mind, Canada is of
the view that the kind of simple legislation required to implement the DSB's recommendations and
rulings in this dispute could be passed in Novemb er or December 2012, before the next session of
Congress starts its work in January 2013.162
45. Finally, Canada asserts that the draft 2012 Farm Bill currently before the US Congress is
"particularly suitable for the inclusion of statutor y changes" required by the DSB's recommendations
and rulings.163 Canada recalls that the House and Senate must agree on one identical bill before the
President is able to sign it into law. To reso lve their differences, members from both chambers enter
into a "conference", where they attempt to se ttle the "matter in disagreement between the
two chambers".164 Canada notes that Representative Rand y Neugebauer added an amendment to the
draft 2012 Farm Bill on 12 July 2012 regardi ng the COOL legislation (the "Neugebauer
amendment"), just three days before the House Agricultural Committee voted to report the Bill back
to the House.165 The Neugebauer amendment—now Section 12104 of the House version of the draft
2012 Farm Bill—creates a source of disagreement betw een the Senate's version of the Bill (which
does not contain any provision related to the COOL statute 166) and the House version of the Bill
(which calls for the USDA to submit a report deta iling the steps to modify the COOL statute in

158This Act revised and extended user-fee programs for prescription drugs and medical devices.
(Canada's submission, para. 30 (referring to Exhibits CDA-12 and CDA-13)).
159This Act kept student loan rates fixed at 3.4 per cent until 2013 and extended the federal funding for
highways. (Canada's submission, para. 31 (referring to Exhibit CDA-15)).
160Canada's submission, para. 32.
161Canada's submission, para. 33 (referring to Award of the Arbitrator, US – Gambling
(Article 21.3(c)), paras. 49 and 50; and Award of the Arbitrator, US – 1916 Act (Article 21.3(c)), para. 39).
162Canada's submission, para. 34.
163Canada's submission, heading to section IV.C.
164Canada's submission, para. 35 (referring to Exhibit CDA-8).
165Canada's submission, para. 36.
166Canada's submission, para. 38 (referring to Exhibit CDA-17).

compliance with the DSB's recommendations and rulings). 167 Therefore, Canada submits, the
inclusion of the Neugebauer amendment will a llow the two chambers to adopt substantive
modifications to the COOL statute during the conference, and, given the political pressure on
Congress to adopt a new Farm Bill in 2012, the Unite d States has the means, if it so chooses, to
comply promptly with the recommendations and rulings of the DSB.168
3. Conclusion
46. Canada concludes that, since there is ample fl exibility available to the United States to end
promptly the discriminatory effects on Canadian cattle and hogs caused by the COOL measure, the
United States can implement the DSB's recommendations and rulings within six months from the date
of the DSB adoption of the Panel and Appellate Body Reports on 23 July 2012, regardless of whether
it chooses to do so through legislative or regulatory means.
169
C. Mexico
47. Mexico requests that I determine the "reasonabl e period of time" for implementation of the
recommendations and rulings of the DSB in this di spute to be a maximum of eight months from the
date of the adoption by the DSB of the Panel and Appellate Body Reports. 170 Mexico understands
that Canada is asking for a shorter "reasonable peri od of time" and states that it would welcome that
result.171
48. Mexico notes, at the outset, that I should consider Article 21.3 of the DSU in its context.172 In
this regard, Article 21.1 of the DSU provides th at "[p]rompt compliance with recommendations or
rulings of the DSB is essential in order to ensure ef fective resolution of disputes to the benefit of all
Members", and Article 3.3 of the DSU emphasizes that "prompt settlement … is essential to the
effective functioning of the WTO". In Mexico's vi ew, therefore, time is of the essence in determining
the reasonable period of time for implementation. 173 Mexico also notes that past arbitral awards have
identified several guidelines for determining the reas onable period of time. Such guidelines include:
(i) that the reasonable period of time should be the "shortest period of time possible within the legal

167Canada's submission, para. 38.
168Canada's submission, para. 39.
169Canada's submission, para. 69.
170Mexico's submission, para. 10.
171Mexico's submission, para. 38.
172Mexico's submission, para. 24 (referring to Award of the Arbitrator, Canada – Patent Term
(Article 21.3(c)), para. 37).
173Mexico's submission, para. 24.

system" of the implementing Member
174; (ii) that the implementing Member "must utilize all the
flexibility and discretion available within its legal and administrative system in order to implement
within the shortest period possible"175; and (iii) that "the 'particular circumstances' of the case must be
taken into account in determini ng the reasonable period of time". 176 In addition, Mexico contends,
past decisions have held that the implementing Me mber bears the burden of proving that its proposed
schedule constitutes a reasonable period of time in the circumstances of the case. 177 However, in
Mexico's view, the United States has failed to meet its legal burden to de monstrate that it cannot
reasonably implement the DSB's recommendations and rulings " in a much shorter period than the one
it proposes".178
49. Mexico further considers that particular attenti on should be paid to the affected interest of
Mexico as a developing country. Pursuant to Article 21.2 of the DSU, arbitrators acting under
Article 21.3(c) must pay particular attention to matte rs affecting the interests of both an implementing
and complaining developing country Member. 179 As a developing country, Mexico requests that
I give special attention to how the reasonable period of time will affect its interests. In this respect,
Mexico recalls that, as a result of the COOL measure, Mexican cattle has been discriminated,
including through the discriminatory price reduction that US purchasers have been forcing on cattle
born in Mexico . 180 In addition, according to Mexico, the CO OL measure is specifically targeted at
Mexican cattle—thus, cattle from a developing country—and not at imports in general.
Consequently, the measure at issue has a "direct nexus to" and "directly affects" Mexico's interests.181
50. Mexico urges me to establish the shortest possible reasonable period of time in this case. 182
According to Mexico, eight months is a reasonable period of time for the United States to comply

174Mexico's submission, para. 25 (quoting Award of the Arbitrator, Brazil – Retreaded Tyres
(Article 21.3(c)), para. 51).
175Mexico's submission, para. 25 (quoting Award of the Arbitrator, EC – Export Subsidies on Sugar
(Article 21.3(c)), para. 61).
176Mexico's submission, para. 25 (quoting Award of the Arbitrator, EC – Export Subsidies on Sugar
(Article 21.3(c)), para. 61).
177Mexico's submission, para. 26 (referring to Award of the Arbitrator, Canada – Pharmaceutical
Patents (Article 21.3(c)), para. 47).
178Mexico's submission, para. 26.
179Mexico's submission, para. 30 (quoting Award of the Arbitrator, Colombia – Ports of Entry
(Article 21.3(c)), paras. 104-106).
180Mexico's submission, para. 33 (referring to Panel Reports, US – COOL , paras. 7.356, 7.357, 7.360,
7.361, and 7.372-7.381; and Appellate Body Reports, US – COOL, paras. 263, 264, 289, 292, 319, and 348).
 181Mexico's submission, para. 33. During the oral hearing, Mexico pointed out that a cattle market that
is integrated with that of the United States is extremel y important for the development of Mexico, and that this
particular livestock sector is respon sible for one million direct jobs and two million indirect jobs in Mexico.
Mexico also noted that it sends very young cattle to the United States' grasslands because livestock cannot be
fattened to the same extent domestically due to Mexican geographical conditions.
182Mexico's submission, paras. 38 and 39.

with its obligations in the present dispute. 183 Mexico recalls the United States' argument that the
reasonable period of time should encompass the time required to issue new regulations 184, which,
according to the United States, is 12 months, plus another six months to fulfil the United States'
obligations under the TBT Agreement. According to Mexico, however, the reasonable period of time
should be much shorter than 12 months and, "at th e very greatest", no longer than eight months.
Mexico further recalls that, although, according to the United States, legislative changes followed by
regulatory changes would take longer than 18 mont hs, the United States is not requesting that the
reasonable period of time be extended to account for the possibility of potential legislation. 185 In this
regard, while Mexico is "highly sceptical" that the COOL measure can be brought into compliance
without amending the COOL statute, it "takes no position" as to whether the United States may be
able to comply by issuing regulations without changing the statute.
186
1. Regulatory Change
(a) Regulatory Process in the United States
51. Mexico recalls that the United States describ es the steps involved in the issuance of new
regulations as requiring a "lengthy and multifaceted rulemaking process". 187 Mexico contends,
however, that the purported deadlines for actions listed by the United States are maximum, not
minimum, requirements, and that US regulations are regularly published and implemented much more
quickly.188
52. Mexico recalls the United States' argument that it needs five months for the preparatory phase
in addition to the time needed to issue new regulations. 189 Mexico notes that the United States refers
to examples in which past arbitrators granted approxi mately three months for preparatory work, but it
offers no reason why it should be allowed five months for preparation in this dispute. 190 In Mexico's
view, three months is more than sufficient for the United States to publish a proposed new regulation,
should it choose to follow this course of action.191

183Mexico's submission, heading to section V.
184Mexico's submission, para. 35 (referring to United States' submission, paras. 5 and 6).
185Mexico's submission, para. 36.
186Mexico's submission, para. 37 and footnote 30 thereto.
188Mexico's submission, para. 40.
190Mexico's submission, para. 46 (referring to United States' submission, para. 17, in turn referring to
Award of the Arbitrator, Canada – Autos (Article 21.3(c)) ; and Award of the Arbitrator, Canada –
Pharmaceutical Patents (Article 21.3(c))).
191Mexico's submission, para. 46.

53. Mexico also contends that, contrary to what the United States submits, the requirement to
allow 60 days for comments on proposed regulati ons is not mandatory, but rather a guideline.
192
Under the APA, the requirement to provide time for public comments before a rule is implemented is
optional.193 According to Mexico, the procedure to im plement regulations as "interim final rules",
soliciting comments after implementa tion to determine whether the rule should be modified, is
widespread in the United States. 194 Mexico emphasizes that the implementing regulations for the
COOL measure itself were published as an interim fi nal rule on 1 August 2008, just over two months
after the 2008 Farm Bill became law on 22 May 2008.195 Moreover, the OMB reviewed and approved
the regulations in "far less time than the 90 days" the United States submits is necessary.196
54. Mexico further notes that the United States refers to the APA in support of its claim that a
new regulation cannot enter into force prior than 30 days after its publication. But the provision
referred to by the United States—Section 553(d) of the APA—establishes that publication shall occur
not less than 30 days before its effective date "except … as otherwise provided by the agency for good
cause found and published with the rule".197 Thus, Mexico asserts, there is considerable flexibility for
agencies to bring a new rule into force more quickly.198
55. Turning to Articles 2.9 and 2.12 of the TBT Agreement , Mexico contends that, assuming
arguendo that Article 2.9 of the TBT Agreement is relevant in the present c ontext, "the United States
can provide notifications and opportunities for consultations with Mexico while the regulatory process
is pending".199 Mexico also characterizes as misplaced th e United States' argument that the Appellate
Body's findings with respect to Article 2.12 of the TBT Agreement in US – Clove Cigarettes allow the
United States to postpone implementation of a revised regulation for an additional six months after its
publication.200 In Mexico's view, Article 2.12 of the TBT Agreement is "irrelevant" to my analysis. 201
Mexico submits that the meaning of the term "rea sonable period of time" is the "shortest period of
time possible within the legal system" of the implementing Member 202, and that the TBT Agreement is

192Mexico's submission, para. 42 (referring to Executive Order 12866, section 6(a) (Exhibit US-27)).
193Mexico's submission, para. 42 (referring to APA, section 553(b) (Exhibit MEX-1)).
194Mexico's submission, para. 42 (referring to Exhibit MEX-3).
195Mexico's submission, para. 43.
196Mexico's submission, para. 43 (referring to Exhibit MEX-5).
197Mexico's submission, para. 41 (quoting APA, section 553(d) (Exhibit MEX-1)).
198Mexico's submission, para. 41.
199Mexico's submission, para. 50.
200Mexico's submission, para. 59.
201Mexico's submission, para. 60.
202Mexico's submission, para. 61 (quoting Award of the Arbitrator, Brazil – Retreaded Tyres
(Article 21.3(c)), para. 51). (underlining added by Mexico)

not within the legal system of the United States. Moreover, the URAA 203 excludes the possibility that
any aspect of the WTO covered agreements or panel or Appellate Body findings could be treated as
self-executing under US domestic law. Therefor e, Mexico asserts, since Article 2.12 of the
TBT Agreement is not within the US legal system, and does not have direct effect under US domestic
law, it cannot provide a justification for granting the United States extra time to bring the COOL
measure into compliance within the meaning of Article 21.3(c) of the DSU.204
56. Mexico further notes that the purpose of Article 2.12 of the TBT Agreement is to protect
producers in exporting Members from potential adver se impacts caused by new technical regulations.
In its view, the interpretation suggested by the United States would have the effect of prolonging a
measure already found to adversely impact Mexica n cattle in a discriminatory manner and to be
inconsistent with Article 2.1 of the TBT Agreement . This would directly contradict the goal of
Article 2.12.205 Mexico also stresses that, the fact that the COOL measure is a technical regulation
does not necessarily mean that compliance will be sought through another technical regulation, which
is "yet another reason why there is no basis to ground the determination of the [reasonable period of
time] on Article 2.12". 206 Finally, Mexico notes that, should the United States replace the COOL
measure with a measure that creates new burdensome and discriminatory restrictions that perpetuate
the disincentives for US producers to purchase Mexi can cattle, the inconsiste ncy of the new measure
with Article 2.1 of the TBT Agreement would not be eliminated, in any event, by delaying
implementation for an additional six months.207
57. According to Mexico, therefore, a reasonable timetable for regulatory implementation in the
present case would be seven months, distributed in the following manner: (i) three months for
preparation and publication of the proposed re gulations; (ii) two months for comments;
(iii) one month to review the comments and publish th e final regulations; and (iv) one month for the
regulations to enter into force. 208 In Mexico's view, this is a "v ery generous schedule", taking into
account that the solutions available to the Unite d States include making the rules simpler, less
complex, and less burdensome, and that only a smal l part of the COOL regulations are at stake. 209
Mexico also highlights that the original COOL regula tions were made effective just four months after
the enactment of the authorizing statute, the 2008 Farm Bill, and before public comments were

203Mexico's submission, para. 61 (referring to Exhibit MEX-17, p. 25).
204Mexico's submission, para. 62.
205Mexico's submission, para. 63.
206Mexico's submission, para. 63.
207Mexico's submission, para. 64.
208Mexico's submission, para. 47.
209Mexico's submission, para. 48.

submitted. This means that the United States "[c]learly … has the ability under domestic law to issue
regulations within a few months".
210 Furthermore, there is no identifiable standard practice under
which the United States must take 12 months to issu e new regulations. Mexico thus contends that,
even providing for a "cushion", eight months is "totally reasonable".211
(b) Technical Complexity of the Measure
58. Contrary to the United States' argument th at the COOL measure is "technical and
complex"212, Mexico contends that "[n]o scientific or engi neering analysis or testing is required" to
modify a requirement for country of origin labellin g that affects a limited group of products, namely
muscle cuts of beef. 213 Mexico notes that the aspects of the COOL statute and regulations relating to
the labelling of beef products account for only a sm all part of the law. In this regard, Mexico
contends that, when the United States submits that the COOL regulations are 49 pages long, it refers
to the Federal Register notice 214, most of which is devoted to e xplaining the procedural background
and the public comments, including with respect to the regulations affecting other covered
commodities like chicken, goat meat, seafood, perishable agricultural products, and nuts. 215
According to Mexico, excluding a list of definitions, th e regulations at issue in this case are contained
in only two pages of the notice. 216 Therefore, the scope of the ru les is much more limited than the
United States argues, and hence much faster action should be expected in the issuance of regulations
relating to beef products than in the promulgation of new COOL regulations as a whole.217
59. Mexico also notes that the United States attemp ts to justify the need for a longer period of
time by arguing that it will have to evaluate the numerous aspects of the COOL measure discussed by
the Appellate Body in finding that the me asure lacked even-handedness and resulted in
discrimination.218 Mexico submits, however, that such an approach would have systemic
consequences, since it would lead to the conclusion that "the more discriminatory and uneven-handed
a measure is, the more time would be needed" to bring it into compliance. 219 Mexico adds that, if

210Mexico's submission, para. 49.
211Mexico's submission, para. 49.
213Mexico's submission, para. 68.
214The Federal Register notice is entitled "Mandatory Country of Origin Labeling of Beef, Pork, Lamb,
Chicken, Goat Meat, Wild and Farm-R aised Fish and Shellfish, Perishable Agricultural Commodities, Peanuts,
Pecans, Ginseng, and Macadamia Nuts; Final Rule" (Mexic o's submission, para. 45 (ref erring to United States'
215Mexico's submission, para. 45 (referring to Exhibit MEX-7).
216Mexico's submission, para. 45.
217Mexico's submission, para. 45.
218Mexico's submission, para. 70 (referring to United States' submission, paras. 31-33).
219Mexico's submission, para. 70.

what the United States suggests is that it needs more time because it has many options to consider,
this would also be irrelevant to the determination of the reasonable period of time.220
(c) Additional Considerations
60. According to Mexico, the United States has fail ed to identify any special factors that would
justify the granting of a longer reasonable period of time. The United States specifically claims that
"[g]iven the … continued strong interest in this i ssue in the United States, the process of bringing the
COOL measure into compliance will be a challenging and multifaceted endeavour." 221 In Mexico's
view, however, it is neither unique to the COOL meas ure nor unusual for a law or regulation to be of
"continued strong interest" for the affected sectors. Moreover, Mexico asserts, "contentiousness" is
not relevant to the determination of a reasonable period of time.222
2. Legislative Change
61. Mexico recalls that, even though the United States submits that the reasonable period of time
should be based on the time needed to implem ent revised regulations, it nonetheless provides
comments on how long it would take to enact legislati on. Contrary to what the United States argues,
Mexico is of the view that the period of time required to amend the COOL statute could be even
shorter than the time needed to issue new regulations. 223 In this respect, Mexico notes that, since the
2008 Farm Bill expired on 30 September 2012 224, it is widely expected that the US Congress will
enact a new Farm Bill when it reconvenes after the US elections taking place in early November. 225
Mexico highlights, moreover, that the full Senate has already approved a version of the new 2012
Farm Bill legislation, whereas the House Committee on Agriculture has also approved its own draft
version.226 In Mexico's view, because the COOL me asure relates to agricultural products, the
amendment of the COOL measure as part of the new 2012 Farm Bill would be both procedurally
possible and substantively appropriate.227

220Mexico's submission, para. 70 (referring to Award of the Arbitrator, US – Offset Act (Byrd
Amendment) (Article 21.3(c)), para. 59).
222Mexico's submission, para. 67 (referring to Award of the Arbitrator, Canada – Pharmaceutical
Patents (Article 21.3(c)), para. 60).
223Mexico's submission, para. 51.
224Mexico's submission, para. 52. Mexico notes that the COOL measure itself did not expire, but a
number of US agricultural programs lapsed on that date. (Ibid.)
225Mexico's submission, para. 53.
226Mexico's submission, para. 53 (referring to Exhibit MEX-10).
227Mexico's submission, para. 53.

62. Mexico notes that Section 12104 of the House ve rsion of the 2012 Farm Bill approved by the
House Agriculture Committee on 12 July 2012 provides that "[n]ot later than 90 days after the date of
enactment of this Act, the Secretary of Agricu lture shall submit … a report detailing the steps the
Secretary will take so that the United States is in compliance" with the WTO decision in the US –
COOL disputes.
228 In Mexico's view this means that me mbers of the US Congress consider the new
2012 Farm Bill as an "appropriate vehicle" for d ealing with WTO compliance. Substantive changes
to the COOL measure can now be added to the House version (which has not yet been voted on by the
full House) and/or during the "conference committee " that would reconcile the differences between
the House and Senate versions of the new legislation. 229 Further, Mexico contends that Congress has
broad flexibility in determining how to implement changes to the COOL measure. It could, for
instance, repeal the measure entirely or change the origin rules to conform to those used for customs
purposes. In any event, if sufficient detail were provided in the statute, it would be unnecessary for
the USDA to issue implementing regulations 230 and, at the same time, any regulations inconsistent
with the amended statute would cease to be enforceable. 231 In Mexico's view, therefore, the COOL
measure could be amended, with immediate effect , within five months, this is, by the end of
December 2012 when the current session of the US Congress ends.232
63. Lastly, Mexico asserts that, even though the United States tries to make the legislative process
seem highly complicated and drawn out, the US Congr ess is able to enact legislation on a faster
schedule even in normal circumstances. 233 For instance, Mexico not es that the American Jobs
Creation Act of 2004 was introduced in the House on 4 June 2004 and became law about
five and a half months later. 234 Similarly, the American Recovery and Reinvestment Act of 2009
became law in three weeks 235, and the Homebuyer Assistance and Improvement Act of 2010 became
law three days after being introduced in the House. 236 Therefore, according to Mexico, the
United States would be able to enact new legisla tion revising the COOL measure even faster than it
could promulgate revised regula tions, and such legislation would not necessarily require immediate
implementing regulations.237

228Mexico's submission, para. 54 (referring to Exhibit MEX-11, p. 154).
229Mexico's submission, para. 54.
230Mexico's submission, para. 55 (referring to Exhibit MEX-12).
231Mexico's submission, para. 55 (referring to Exhibit MEX-13).
232Mexico's submission, para. 56.
233Mexico's submission, para. 57 (referring to United States' submission, paras. 40-48).
234Mexico's submission, para. 57 (referring to Exhibit MEX-14).
235Mexico's submission, para. 57 (referring to Exhibit MEX-15).
236Mexico's submission, para. 57 (referring to Exhibit MEX-16).
237Mexico's submission, para. 58.

3. Conclusion
64. For the above reasons, Mexico submits that a maximum of eight months as of the DSB
adoption of the Panel and Appellate Body Repor ts provides a reasonable period of time for the
United States to comply with the recommendations and rulings of the DSB in this dispute, and
therefore requests that I award a period of time no greater than eight months, ending on 23 March
2013.238
III. Reasonable Period of Time
A. Preliminary Matters
1. Mandate of the Arbitrator
65. The Appellate Body and Panel Reports in these disputes were adopted by the DSB on 23 July
2012. On 31 August 2012, the United States informed the DSB of its intention to comply with the
recommendations and rulings, but stated that it woul d need a reasonable period of time in which to do
so.239 As the parties failed to agree on a reasonabl e period of time for impl ementation, Canada and
Mexico requested that such period be determined through arbitration pursuant to Article 21.3(c) of the
DSU. Canada, Mexico, and the United States were una ble to agree on an arbitrator, thus the Director-
General, after consulting with the parties, appointed me as Arbitr ator on 4 October 2012 to determine
the reasonable period of time for implementation in these disputes. I accepted the appointment on
5 October 2012.
66. Article 21.3 of the DSU establishes that, if it is "impracticable" for a Member to comply
"immediately" with the recommendations and rulings of the DSB, then that Member "shall have a
reasonable period of time in which to do so". My task as Arbitrator in these proceedings is to
determine such reasonable period of time, taking due account of the relevant provisions of the DSU
and, specifically, of Article 21.3(c), which states that the "reasonable period of time" shall be:
 … a period of time determined through binding arbitration within
90 days after the date of adoption of the recommendations and
rulings. In such arbitration, a guideline for the arbitrator should
be that the reasonable period of time to implement panel or
Appellate Body recommendations should not exceed 15 months
from the date of adoption of a pa nel or Appellate Body report.
However, that time may be shor ter or longer, depending upon
the particular circumstances. (footnotes omitted)

238Mexico's submission, para. 72.
239WT/DSB/M/321, para. 58.

67. I am mindful of the context in which Article 21.3(c) appears. Article 21.1 of the DSU
provides that "prompt compliance" is essential fo r the effective resolution of WTO disputes.
Furthermore, the introductory paragraph of Article 21.3 indicates that a "reasonable period of time"
for implementation shall be available only if "it is impracticable to comply immediately" with the
recommendations and rulings of the DSB. I agree with previous arbitrators that these contextual
elements suggest that the "reasonable period of time" within the meaning of Article 21.3 of the DSU
"should be the shortest period possible within th e legal system of the [implementing] Member".
240
The implementing Member bears the burden of proving that the period it seeks for implementation is
"the shortest period possible" within its legal system. It is ultimately for the arbitrator to determine
the "shortest period possible" for implementation, on the basis of the evidence presented by all
parties.241
68. My mandate in these Article 21.3(c) proceedings is limited to determining the "reasonable
period of time" for implementation in the underlyi ng WTO disputes. Like previous arbitrators,
I consider that my mandate relates to the time by when the implementing Member must achieve
compliance, not to the manner in which that Member achieves compliance. 242 I am mindful that it is
beyond my mandate to determine the consistency with WTO law of the measure eventually taken to
comply. Should a dispute arise concerning the consistency of an implementing measure with
WTO law, this can only be assessed in proceedings pursuant to Article 21.5 of the DSU. Yet, when a
Member must comply cannot be determined in isol ation from the means used for implementation. In
order "to determine when a Member must comply, it may be necessary to consider how a Member
proposes to do so." 243 Thus, the means of implementation that are available to the Member
concerned, and that this Member intends to use, are relevant for a determination under
Article 21.3(c).244
69. The implementing Member has "a measure of discretion in choosing the means of
implementation, as long as the means chosen are c onsistent with the recommendations and rulings of

240Award of the Arbitrator, EC – Hormones (Article 21.3(c)), para. 26.
241Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)), para. 51 (referring to Award of
the Arbitrator, US – Offset Act (Byrd Amendment) (Article 21.3(c)), para. 44).
242See Award of the Arbitrator, Colombia – Ports of Entry (Article 21.3(c)), para. 63; Award of the
Arbitrator, US – Stainless Steel (Mexico) (Article 21.3(c)), para. 41; Award of the Arbitrator, Brazil –
Retreaded Tyres (Article 21.3(c)), para. 47; Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)),
para. 26; Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)), para. 49; and Award of the Arbitrator,
Canada – Pharmaceutical Patents (Article 21.3(c)), para. 41.
243Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 26. (original emphasis)
244Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 27.

the DSB and with the covered agreements". 245 As stated by previous arbitrators, "the implementing
Member does not have an unfettered right to choose any method of implementation." 246 I must
consider, in particular, "whether the implementing act ion falls within the range of permissible actions
that can be taken in order to implem ent the DSB's recommendations and rulings". 247 In other words,
the chosen method must be capable of placing th e implementing Member into compliance within a
reasonable period of time in accordance with the guidelines contained in Article 21.3(c).248 Moreover,
according to the last sentence of Article 21.3(c), the "particular circumstances" of a dispute may affect
the calculation of the reasonable period of time, making it "shorter or longer".249
70. As other arbitrators in the past, I also consider that the implementing Member is expected to
use whatever flexibility is available within its legal system to implement promptly the
recommendations and rulings of the DSB. 250 This is justified by the importance of fulfilling the
obligation to comply immediately with the recommend ations and rulings of the DSB, which will have
established that certain measures are inconsistent w ith a Member's WTO obligations. However, this
does not necessarily include recourse to "extraordinary" procedures.251

245Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)), para. 48 (original emphasis)
(quoting Award of the Arbitrator, EC – Hormones (Article 21.3(c)), para. 38). See also Award of the Arbitrator,
Japan – DRAMs (Korea) (Article 21.3(c)) , para. 25 (referring to Award of the Arbitrator, EC – Chicken Cuts
(Article 21.3(c)) , para. 49, in turn referring to Award of the Arbitrator, Canada – Pharmaceutical Patents
(Article 21.3(c)), paras. 41-43; Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)) , para. 32;
Award of the Arbitrator, EC – Tariff Preferences (Article 21.3(c)) , para. 30; Award of the Arbitrator, US – Oil
Country Tubular Goods Sunset Reviews (Article 21.3(c)) , para. 26; Award of the Arbitrator, US – Gambling
(Article 21.3(c)), para. 33; and Award of the Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)) ,
para. 69.
246Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)), para. 48 (quoting Award of the
Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)), para. 69).
247Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)), para. 48 (quoting Award of the
Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 27).
248See Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 27 (referring to Award
of the Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)), para. 69).
249Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) , para. 25 (referring to Award of
the Arbitrator, EC – Chicken Cuts (Article 21.3(c)), para. 49).
250See Award of the Arbitrator, US – Stainless Steel (Mexico) (Article 21.3(c)), para. 42; Award of the
Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)), para. 48; Award of the Arbitrator, Japan – DRAMs
(Korea) (Article 21.3(c)), para. 25 (referring to Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)) ,
para. 49, in turn referring to Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)) , para. 39);
Award of the Arbitrator, EC – Tariff Preferences (Article 21.3(c)), para. 36; and Award of the Arbitrator, US –
Offset Act (Byrd Amendment) (Article 21.3(c)), para. 64.
251See Award of th e Arbitrator, US – Stainless Steel ( Mexico) (Article 21.3(c)) , para. 42 (referring to
Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)), para. 48, in turn referring to Award of the
Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)) , para. 25; Award of the Arbitrator, EC – Chicken Cuts
(Article 21.3(c)), para. 49; Award of the Arbitrator, Korea – Alcoholic Beverages (Article 21.3(c)) , para. 42;
Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)), para. 51; and Award of the Arbitrator, US
– Offset Act (Byrd Amendment) (Article 21.3(c)), para. 74).

71. Finally, I am mindful that Article 21.2 of the DSU provides that "[p]articular attention should
be paid to matters affecting the interests of de veloping country Members with respect to measures
which have been subject to dispute settlement." Mo reover, it has been recognized in past arbitrations
that Article 21.2 directs the arbitrator acting pursuan t to Article 21.3(c) to pay particular attention "to
'matters affecting the interests' of both an implementing and complaining developing country Member
or Members".
252 Therefore, as in the present case Mexico is a complaining developing country
Member, the matters affecting its interests in this ar bitration should be the object of my "particular
attention".
72. At the oral hearing in this arbitration, Canada, Mexico, and the United States agreed that these
principles set out in previous arbitration awards ar e relevant for the determ ination of the reasonable
period of time in these disputes.
2. Measures to be Brought into Conformity
73. For the purposes of these Article 21.3(c) arbitr ation proceedings, I refer to the relevant
findings of the Appellate Body and of the Panel. The Appellate Body upheld:
… albeit for different reasons, the Pa nel's ultimate finding … that the
COOL measure, in particular in re gard to the muscle cut meat labels,
is inconsistent with Article 2.1 of the TBT Agreement because it
accords less favourable treatment to imported livestock than to like
domestic livestock …
253
74. The "COOL measure" comprises the COOL st atute passed by the US Congress, and its
implementing regulation, the "2009 Final Rule" 254 promulgated by the Secretary of Agriculture
through the United States Department of Agriculture 's (the "USDA") Agricultural Marketing Service
("AMS").255

252Award of the Arbitrator, EC – Export Subsidies on Sugar (Article 21.3(c)) , para. 99. (original
emphasis) Mexico submits that I should pay particular attention to the matters affecting its interests as a
complaining developing country Member in this dispute. (Mexico's submission, para. 30)
253Appellate Body Report, US – COOL (Canada) , para. 496(a)(iv) and Appellate Body Report, US –
254See Panel Exhibits CDA-5 and MEX-7.
255Appellate Body Reports, US – COOL, para. 239. The Panel had also found that "the Vilsack letter
violates Article X:3(a) [of the GATT 1994] because it does not constitute a reasonable administration of the COOL
measure." (Panel Reports, US – COOL , paras. 7.886 and 8.4(b)) This finding was not appealed. The "Vilsack
letter" was a letter dated 20 February 2009 from the US Secretary of Agriculture, Thomas J. Vilsack, to industry
representatives. (Appellate Body Reports, US – COOL, para. 1(c)) According to th e United States, the Vilsack
letter was withdrawn on 5 April 2012, while the appellate proceedings in th ese disputes were ongoing. (United
States' submission, footnote 2 to para. 3 (referring to Appellate Body Reports, US – COOL , footnote 228 to

75. I observe that the Appellate Body found that the COOL measure, which modifies the
conditions of competition in the US market to th e detriment of imported livestock, accords less
favourable treatment within the meaning of Article 2.1 of the TBT Agreement to imported livestock
than to domestic livestock because such detrimen tal impact "does not stem exclusively from a
legitimate regulatory distinction but, instead, reflects discrimination". 256 In particular, the Appellate
Body found that:
… examination of the COOL measure under Article 2.1 reveals that
its recordkeeping and verification requirements impose a
disproportionate burden on upstre am producers and processors,
because the level of information c onveyed to consumers through the
mandatory labelling requirements is far less detailed and accurate
than the information required to be tracked and transmitted by these
producers and processors. It is these same recordkeeping and
verification requirements that "necessitate" segregation, meaning that
their associated compliance costs are higher for entities that process
livestock of different origins. Given that the least costly way of
complying with these requirements is to rely exclusively on domestic
livestock, the COOL measure creates an incentive for US producers
to use exclusively domestic livestock and thus has a detrimental
impact on the competitive opportunities of imported livestock.
Furthermore, the recordkeeping and verification requirements
imposed on upstream producers and processors cannot be explained
by the need to convey to cons umers information regarding the
countries where livestock were born, raised, and slaughtered, because
the detailed information required to be tracked and transmitted by
those producers is not necessarily conveyed to consumers through the
labels prescribed under the COOL measure. This is either because
the prescribed labels do not expressly identify specific production
steps and, in particular for Labe ls B and C, contain confusing or
inaccurate origin information, or because the meat or meat products
are exempt from the labelling requirements altogether. Therefore,
the detrimental impact caused by the same recordkeeping and
verification requirements under the COOL measure can also not be
explained by the need to provide origin information to consumers.
Based on these findings, we consider that the regulatory distinctions
imposed by the COOL measure amount to arbitrary and unjustifiable
discrimination against imported livest ock, such that they cannot be
said to be applied in an even-hande d manner. Accordingly, we find
that the detrimental impact on imported livestock does not stem
exclusively from a legitimate regulatory distinction but, instead,
reflects discrimination in violation of Article 2.1 of the TBT
Agreement.
257

B. Factors Affecting the Determination of the Reasonable Period of Time
76. The United States requests a period of time of 18 months to bring itself into compliance with
the recommendations and rulings of the DSB. This 18-month period encompasses, according to the
United States, 12 months to complete the US regulat ory process, and six months to comply with the
procedural requirement under Article 2.12 of the TBT Agreement to allow a "reasonable interval"
between the publication of a modified C OOL measure and its entry into force.
258 The United States
highlights that the Appellate Body identified numerous aspects of the COOL measure in its
description of why the measure was inconsistent with Article 2.1 of the TBT Agreement , namely:
(i) the fact that the labels do not precisely identify the place of birth, raising, and slaughter of animals,
even though entities throughout the supply chain may need to keep track of this information; (ii) the
commingling provisions of the 2009 Final Rule; ( iii) the flexibility provided between Category B and
Category C labels; (iv) the recordkeeping require ments; (v) the exceptions for processed foods,
restaurants, and small retailers; and (vi) the fact that Category D labels must only list the country of
import.259 According to the United States, these findings "underscore the complexity of designing a
compliance measure in the instant case".260
77. Canada and Mexico contend that nothing makes the COOL measure distinctly complicated or
complex to withdraw. 261 According to Canada, withdrawal would simply require removing muscle
cuts of beef and pork from the commodities covered by the COOL measure. 262 I n m y v i e w ,
withdrawal, in the sense of repealing, is not the only way to comply with the DSB's recommendations
and rulings. I note that the arbitrator in Colombia – Ports of Entry observed that "withdrawal of the
inconsistent measures is the 'preferred' means of implementation", but that "modification [of the
inconsistent measure] is within the 'range of permissible actions ' available" to the implementing
Member.263 I agree that a Member whose measure has been found to be inconsistent with the covered
agreements may generally choose either to re peal or modify the inconsistent measure. 264 Therefore,

258United States' submission, para. 5. The United States notes that, in US – Clove Cigarettes , the
Appellate Body found that "[p]aragraph 5.2 of the Doha Ministerial Decision provides interpretative
clarification of the concept of a 'reasonable inte rval' within the meaning of Article 2.12 [of the TBT Agreement]
by establishing a rule that producers in exporting Members require a period of at least six months to adapt their
products or production methods to the requirements of the Member's technical regulation." (United States'
submission, footnote 3 to para. 5 (quoting Appellate Body Report, US – Clove Cigarettes, para. 288))
259United States' submission, para. 31 (referring to Appellate Body Reports, US – COOL , paras. 341-
350).
260United States' submission, para. 30.
262Canada's submission, para. 11.
263Award of the Arbitrator, Colombia – Ports of Entry (Article 21.3(c)), para. 77.
264Award of the Arbitrator, US – Offset Act (Byrd Amendment) (Article 21.3(c)) , para. 50; Award of
the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 37.

I consider that the reasonable period of time that I ha ve to determine in this arbitration should allow
the United States to comply with the DSB's reco mmendations and rulings either by modifying the
COOL measure, or by repealing it with regard to muscle cuts of beef and pork.265
78. In any event, Canada contends that the reas onable period of time for the United States to
implement the DSB's recommendations and rulings should not exceed six months from the date of
adoption of the Panel and Appellate Body Reports, comprising two months for preparatory work and
four months to make the implementing measure effective. 266 In Mexico's view, the United States
should be granted a maximum of eight months for implementation in the present case. 267 Both
Canada and Mexico consider that Article 2.12 of the TBT Agreement does not apply to the
determination of a reasonable period of time under Ar ticle 21.3(c) of the DSU and that, in any case, it
does not justify that the United States allows six mo nths between the publication and the entry into
force of the modified COOL measure. 268 In this regard, Canada and Mexico asserted at the oral
hearing that, since they export livestock to the Un ited States, their producers would not need any time
to adapt their products—that is, cattle and/or hogs —or methods of production to the requirements of a
modified COOL regulation.
79. I note that the United States' request for a peri od of 18 months is framed in two parts: (i) a
request for a 12-month period to complete domes tic implementation; and (ii) a request for a
six-month period to comply with the requirement of Article 2.12 of the TBT Agreement to allow a
"reasonable interval" between publication and entr y into force of the modified COOL measure .269
I will examine these two periods of time separately. First, I will address the reasonable period of time
necessary for the United States to im plement the COOL rulings within its legal system and according
to the rules and principles applicable therein. Then , I will consider the issue of whether an additional
six-month period is required for the United States to comply with Article 2.12 of the TBT Agreement.

265I note that, in the context of its analysis under Article 2.2 of the TBT Agreement, the Appellate Body
upheld the Panel's finding regarding the legitimacy of the objective pursued by the United States through the
COOL measure, namely, to provide consumers with information on the countries in which the livestock from
which the meat they purchase is produced were born, raised, and slaughtered. Accordingly, the Appellate Body
found that the Panel did not err in finding that the provision of consumer information on origin is a legitimate
objective within the meaning of Article 2.2 of the TBT Agreement. (Appellate Body Reports, US – COOL, para.
453)
266Canada's submission, para. 3.
267Mexico's submission, para. 38.
268Canada's submission, paras. 44-46; Mexico's submission, paras. 62, 63, and 65.
269United States' submission, para. 5.

1. Means of Implementation
80. The United States contends that a change to the COOL measure could involve either
legislative action followed by regulator y action, or regulatory action only. 270 Although the
United States submits that it has not yet decided which of these two means of implementation it will
choose, it is asking me to determine the reasonable period of time for implementation based on the
time it considers necessary to effect implementation through regulatory change. 271 I n t h e
United States' view, 12 months would be the mi nimum period required to complete all of the
necessary steps to put in place a modified COOL regulation. 272 I note that Canada and Mexico
consider that a regulatory change, without amending the COOL statute, is un likely to suffice to bring
the COOL measure into conformity with the DSB's recommendations and rulings. 273 I am mindful,
however, that my mandate relates to the time by which compliance must be achieved, not to the
manner in which the implementing Member achieves compliance. 274 Nevertheless, as I mentioned
earlier, when a Member must comply cannot be de termined in isolation from the chosen means of
implementation. Therefore, I start by consideri ng the period of time within which regulatory action
could be completed in the United States. I will then address the period of time within which a
legislative change could be accomplished.
(a) Regulatory Action
(i) Regulatory Process
81. The United States submits that any modified C OOL regulation will be issued by the USDA
pursuant to the Administrative Procedure Act 275 (the "APA") and Executive Order 12866 276, among

270United States' submission, para. 5. The United States never suggested, as potential means of
implementation, a stand-alone statutory change.
271United States' submission, para. 7. The United Stat es submits that it requires a reasonable period of
time "of at least 18 months to make any necessary regulatory modifications to bring the COOL measure into
compliance with the DSB's recommendations and rulings". ( Ibid., para. 5) In addition, the United States notes
that, if it "makes statutory changes to bring the COOL measure into compliance, the entire process will take
substantially longer than 18 months". ( Ibid., para. 6) In sum, the United States "focus[es] on explaining the
shorter process and time required solely to make a regulatory modification to the 2009 Final Rule" and, although
it "briefly outline[s] the steps necessary to make legislative changes to the COOL measure", it "is not asking for
[a reasonable period of time] longer than 18 months." (Ibid., para. 7)
272United States' submission, para. 15.
274Award of the Arbitrator, Colombia – Ports of Entry (Article 21.3(c)) , para. 63; Award of the
Arbitrator, US – Stainless Steel ( Mexico) (Article 21.3(c)) , para. 41; Award of the Arbitrator, Brazil –
Retreaded Tyres (Article 21.3(c)), para. 47; Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)),
para. 26; Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)) , para. 49; and Award of the Arbitrator,
Canada – Pharmaceutical Patents (Article 21.3(c)), para. 41.
275See Exhibits CDA-21 and MEX-1.
276See Exhibit US-27.

other legal instruments in US law.277 Canada notes that the United States fails to mention Section 123
of the Uruguay Round Agreements Act 278 (the "URAA"), which establishes a specific legal
framework imposing obligations on the United St ates Trade Representative to coordinate the
implementation of panel and A ppellate Body reports that are adverse to the United States. 279 At the
oral hearing, the United States explained that it did not focus on the requirements set forth in
Section 123 of the URAA in its written submission because these requirements can be satisfied as part
of the process the United States described for re gulatory action under the APA and Executive Order
12866. The United States further contends that th e shortest timeframe in which it would normally be
able to complete the regulatory process to publish a modified final rule would be 12 months. This
timeframe encompasses the following steps: (i) five months for the preparatory phase to determine
how to modify the regulation, to draft and internally clear the proposed rule, and to conduct regulatory
impact analyses; (ii) 90 days for the Office of Management and Budget's (the "OMB") review and
interagency clearance of the proposed rule; (iii) a 60-day notice and comment period after publication
of the proposed rule in the Federal Register; (i v) two months for the USDA to review the comments
and revise the rule accordingly; (v) 90 days for the OMB's review and interagency clearance of the
final rule; and (vi) publication.280 In addition, the United States explains that, while the APA requires
at least 30 days between the publication of the final rule and its entry into force 281, the Congressional
Review Act282 (the "CRA") requires that Congress be provided at least 60 days to review the final rule
before it enters into force.283
82. At the oral hearing, the United States stressed that, while all of the above steps are mandatory,
it has shown a great deal of flexibility by reducing the time period normally required for some of

277United States' submission, para. 13.
278See Exhibit CDA-1.
279Canada's submission, para. 68 (referring to URAA, Sections 123(f)(3) and 123(g) (Exhibit CDA-1))
Canada also observes that in the arbitration in US – Stainless Steel (Mexico) , the United States argued that the
process under Section 123 of the URAA would require approximately nine months, or seven months under
normal circumstances (for instan ce, in a year without elections). (Ibid., para. 68 (referring to Award of the
Arbitrator, US – Stainless Steel (Mexico) (Article 21.3(c)), para. 56)).
280United States' submission, para. 15. I note that the United States does not request any period of time
for the publication step alone. Furthermore, I note that the total of the time periods provided for each of the
steps described by the United States does not amount to 12 months, but to 15 months. As explained below,
however, at the oral hearing the United States acknowle dged the existence of certain flexibilities, and clarified
that it is requesting a total period of 90 days for the OMB's review and interagency clearance of both the
proposed rule (45 days) and the final rule (45 days). In the light of this response, the timeframe set out by the
United States indeed amounts to 12 months.
281United States' submission, para. 19 (referring to APA, section 553(d)).
282See Exhibit US-4.
283United States' submission, para. 24 (referring to CRA, section 801(a)(3)(A)(ii)). At the oral hearing,
the United States clarified that it is asking for 60 days between the publication of the modified COOL regulation
and its entry into force, and that this period is subsumed within the six months it is requesting pursuant to
Article 2.12 of the TBT Agreement.

these steps, for instance, the OMB's review and interagency clearance.
284 Canada and Mexico
consider, however, that the United States still omits re levant flexibilities that are available within its
domestic legal system to facilitate expeditious regu latory changes. Moreover, they observe that
US regulations are frequently published and im plemented much quicker than in 12 months. 285 I will
proceed to address each of the steps described by th e United States, and, in the light of the existence
of flexibilities or lack thereof, I will determine whether the amount of time the United States is
requesting for each stage—and in total—is the "shor test period possible within its domestic legal
system"286 to implement the COOL rulings at stake.
83. To begin with, the United States requests five months to complete the preparatory phase,
which, in its view, includes conducting discussions and reviewing options, building and organizing
the broad support necessary for modifications to the COOL regulation, and preparing a draft rule for
internal clearance. 287 I am mindful that "determin[ing] how to modify the regulations", "draft[ing]
and internally clear[ing] the proposed rule", and "conduct[ing] the regulatory impact and other
analyses"
288 are relevant to achieve successful compliance and can be time-consuming. Like past
arbitrators, I also generally agree that some time may be granted to complete preparatory steps289, and,
in the particular case at issue, the complexity of th e Appellate Body's rulings justifies, in my view, the
need for some time to conduct prep aratory work. As the United States recalls, in determining that the
detrimental impact on imported livestock reflected di scrimination in violation of Article 2.1 of the
TBT Agreement, the Appellate Body pointed to sev eral aspects of the COOL measure. 290 These are:
(i) the fact that the labels do not precisely specify where animals were born, raised, and slaughtered;
(ii) the commingling provisions of the 2009 Final Rule; (iii) the flexibility provided between
Category B and Category C labels; (iv) the recordk eeping requirements; (v) the existence of various
exceptions; and (vi) the fact that Category D labels must only list the country of import. 291 These
different features identified by the Appellate Body should be considered by the United States when
deciding how to achieve compliance. In this rega rd, I recognize that it is not self-evident from the
Appellate Body's findings how such features s hould be addressed to make the COOL regulation

284The United States contended at the oral hearing that the time it has required for the OMB's review
and interagency clearance is well below the OMB's averag e review time for rules issued by the USDA during
the past 12 months, which has been 96 days.
285Canada's submission, heading to section V.B.; Mexico's submission, para. 40.
286Award of the Arbitrator, US – Stainless Steel (Mexico) (Article 21.3(c)), para. 43.
287United States' submission, para. 16.
288United States' submission, para. 15(1).
289See, for instance, Awar d of the Arbitrator, US – Hot-Rolled Steel (Article 21.3(c)) , para. 38; and
Award of the Arbitrator, Chile – Alcoholic Beverages (Article 21.3(c)), para. 43.
290United States' submission, para. 31.
291United States' submission, para. 31 (referring to Appellate Body Reports, US – COOL , paras. 341-
350).

consistent with the United States' WTO obligations , while still providing consumers with information
on the origin of beef and pork products.292
84. The above notwithstanding, a period of five months for the preparatory phase, as requested by
the United States, is, in my view, not required. Having examined the parties' arguments, I am not
persuaded that the United States could not have co mpleted all the necessary preliminary steps by the
date of the oral hearing in this arbitration. 293 The United States submits that it has been conducting
internal discussions and engaging with stakeholde rs and Members of Congress since the adoption of
the DSB's recommendations and rulings on 23 July 2012. 294 In response to questioning at the oral
hearing, the United States added that it has al so been conducting an economic impact assessment. 295
However, the United States has not provided further details either on the outcome of those internal
discussions or on the progress made so far. Such in formation would have been very useful for me to
better understand and take into account the need for a longer preparatory phase. It would have also
constituted evidence of the fact that the United Stat es has not remained inactive during the more than
three months that have now elapsed following a doption of the Panel and A ppellate Body Reports on
23 July 2012. I note, in this regard, that an im plementing Member "must use the time after adoption
of a panel and/or Appellate Body report to begin to implement the recommendations and rulings of
the DSB". 296 It may also be recalled that the Appell ate Body Reports were published on 29 June
2012, almost one month before their adoption by th e DSB. Thus, it is reasonable to assume that,
already by the end of June 2012, interested stakehol ders in the United States were aware that some
form of action would need to be taken with respect to the COOL measure. Indeed, the introduction of
an amendment to the draft Farm Bill on 12 July 2012 in the House of Representatives (the "House"),
referring to compliance with the WTO decision in US – COOL (the "Neugebauer Amendment") 297,

292The United States emphasized at the oral hearing th at it continues to have a strong interest in
providing such information to its citizens and will continue to do so. In this regard, the United States
highlighted that the Appellate Body agreed that this is a legitimate objective. (United States' oral statement
(referring to Appellate Body Reports, US – COOL, para. 453)) See also supra, footnote 265.
293The oral hearing was held on 1 November 2012.
294United States' submission, para. 16.
295In response to questioning at the oral hearing, the United States contended that it had already taken
the following steps: conducting an economic impact assessment, consulting with Congress under the URAA,
and having discussions with stakeholders.
 296Award of the Arbitrator, US – Section 110(5) Copyright Act (Article 21.3(c)) , para. 46. The
Arbitrator in Chile – Price Band System also noted that "the implementation process should not be prolonged
through a Member's inaction (or insuffic ient action) in the first months following adoption. In other words,
whether or not a Member is able to complete implementation promptly, it must at the very least promptly
commence and continue concrete steps towards implementation." (Award of the Arbitrator, Chile – Price Band
System (Article 21.3(c)), para. 43 (original emphasis))
297On 12 July 2012, Representative Randy Neugebauer introduced an amendment to the 2012 Farm Bill
in the House. The so-called "Neugebauer Amendment", now Section 12104 of the House version of the draft
2012 Farm Bill, provides as follows:

suggests that there was awareness of the need to modify the COOL measure even before the DSB
adoption of the Panel and Appellate Body Reports on 23 July 2012. For the above reasons, I consider
that the preparatory phase does not require five mont hs, as suggested by the United States. Rather, in
my view, it could have been completed within a pproximately three months from the adoption of the
DSB's recommendations and rulings, that is, by the beginning of November 2012.
85. According to the United States, following the preparatory phase, the OMB has up to 90 days
for review and interagency clearance of the proposed rule.
298 Further, before the publication of the
final rule, the OMB has up to 90 days again to re view that rule and conduct the interagency
clearance.299 In response to questioning at the oral hearing, the United States confirmed that the
OMB's review and interagency clearance takes place in respect of both the proposed rules and final
rules.300 It recognized, however, that the review and interagency clearance at both stages could be
done faster, particularly, within 60 or even 45 days. 301 My understanding is that, in the present case,
the United States requests a total period of 90 days for the OMB's review and interagency clearance,
which encompasses 45 days to review the proposed rule, and 45 days to review the final rule.
86. In my view, however, a period of approximately 30 days could suffice at each stage of the
OMB's review for the following reasons. First, by recognizing that the original 90-day period could
be reduced to 60 or even 45 days, the United St ates itself acknowledged that there are flexibilities
available to make such review and interagency clearance happen faster. Notably, such flexibilities are
apparent from the very language of Executive Or der 12866, which provides for a review period of
45 days when the OMB's Office of Information and Regulatory Affairs (the "OIRA") has previously
reviewed the rule.302 Second, Canada notes, and the United States acknowledged at the hearing, that,

Not later than 90 days after the date of enactment of this Act, the Secretary
of Agriculture shall submit to the Committee on Agriculture, Nutrition, and
Forestry of the Senate and the Committee on Agriculture of the House of
representatives a report detailing the steps the Secretary will take so that the
United States is in compliance with the decision of the World Trade
Organization in United States – Certain Country of Origin Labeling
(COOL) Requirements (DS384, DS386).
(See Canada's submission, para. 36 (referring to Exhibit CDA-16); Mexico's submission, para. 54 (referring to
Exhibit MEX-11))
298United States' submission, para. 15(2).
299United States' submission, para. 15(5).
300In its written submission, the United States only developed arguments with respect to the OMB's
review and interagency clearance of proposed rules. (United States' submission, para. 22)
301The United States acknowledged that, although Executive Order 12866 provides for 90 days, in
some cases the OMB has completed its review faster and th at, in the present case, it could be able to expedite
the process to 60 or 45 days.
302Executive Order 12866, section 6(b)(2), provides:
OIRA shall waive review or notify the agency in writing of the results of its
review within the following time periods: […] (B) … within 90 calendar

even in the case of significant rules 303, the Administrator of the OIRA may waive the review
requirement.304 However, the United States emphasized th at a decision to waive the OMB's review
would be exceptional, and it would take ti me in any event. Although, according to
Executive Order 12866, the OIRA may indeed take time to issue such waiving decision, 305 nothing in
the language of Executive Order 12866 suggest s that such a deci sion is exceptional. 306 Third, I take
note of Mexico's point that the OIRA completed its review and interagency clearance of the
2008 Interim Final Rule
307 for COOL in 50 days, whereas it took only 39 days for the review of the
2009 Final Rule.308 This is 89 days in total. In my view, since a modified COOL regulation will have
a limited scope 309, it is reasonable to assume that the OIRA ma y review it in less than the 89 days it
took for the much longer and more comprehensive or iginal regulations. For all the above reasons,
I consider that the United States should be able to complete the OMB's review and interagency
clearance of the proposed and final rule in no more than 60 days.
87. According to the United States, after the publi cation of the proposed rule in the Federal
Register, a 60-day notice and comment period must be granted.310 The United States explains that this
time period provides interested parties with the oppor tunity to participate in the rulemaking process
by providing written data, views, or arguments. 311 Although Mexico submits that this 60-day

days after the date of submission of the information …, unless OIRA has
previously reviewed this information an d, since that review there has been
no material change in the facts and circumstances upon which the regulatory
action is based, in which case, OIRA shall complete its review within
45 days.
(See Exhibit US-27) (underlining added)
303The United States observes that the COOL regulati ons are economically "significant" because they
have an annual effect on the economy of $100 million or more, in accordance with the definition provided in
Executive Order 12866, section 3(f)(1). (See United States' submission, footnote 28 to para. 23 (referring to
Exhibit US-27)) Canada submits th at the United States seems to imply that, because the regulations
implementing the COOL measure were classified as "s ignificant", a regulation that implements the DSB's
recommendations and rulings will also be "significant", a fact that, according to Canada, the United States has
failed to prove. (Canada's submission, paras. 54 and 55)
304Canada's submission, para. 57 (referring to Exhibit US-27).
305See supra, footnote 302.
306Executive Order 12866, section 6(a)(3)(A) provides: "[t]he Administrator of OIRA may waive
review of any planned regulatory action designated by the agency as significant …" (Canada's submission,
para. 57 and footnote 101 thereto)
307See Panel Exhibits CDA-3 and MEX-4.
308Mexico's submission, para. 43 (referring to Exhibits MEX-5 and MEX-6).
309I recall that the modified COOL regulation would cover only muscle cuts of beef and pork , whereas
the 2009 Final Rule includes a wider range of covered commodities.
310United States' submission, paras. 15(3) and 19 (referring to APA, section 553(c)).
311United States' submission, para. 19 (referring to APA, section 553(c)). See Exhibits CDA-21 and
MEX-1.

requirement is not mandatory
312, it agrees that two months is an appropriate period for comments. 313
At the oral hearing, the United States stressed that it had received an average of 6,000 comments in
response to each of the three previous COOL notic es, and that it would almost certainly receive a
request for an extension of the 60-day comment peri od in the present case. It further observed that
such a 60-day period also serves the purpose of pr oviding the United States' trading partners with
sufficient notice and an opportunity to comment, in accordance with the obligations set forth in
Article 2.9 of the TBT Agreement.314 In this regard, my understanding of Canada's and Mexico's oral
responses is that they agree that this 60-day inte rval could allow the United States to receive both
"domestic" and "international" comments in parallel. Accordingly, I am satisfied that the importance
of the comment period warrants the two months suggested by the United States.
88. After the comment period, the USDA needs, according to the United States, at least
two months to review such comments, determin e how to respond to them, and revise the proposed
rule taking into account the comments received. 315 The APA also requires that agencies incorporate
in the rules a "concise general statement" of their basis and purpose 316, which US courts have
interpreted as providing detailed statements of reasons to justify agency action. 317 I observe that, in
Mexico's view, one month should suffice to re view comments and publish the final regulation. 318
However, at the oral hearing, the United States ch aracterized as unreasonable any suggestion that this
step could be expedited for a modified COOL regul ation that will potentially generate thousands of
comments.319 I am not persuaded, however, that the USDA could not review the comments, and
revise the modified regulation accord ingly, in a shorter period of time. First, as a general matter,
I note that the United States has provided neither a legal basis, nor evidence, supporting the assertion
that two months are required for the USDA's review. Second, the fact that arguably only part of the
original COOL regulation will be at issue suggests that the number of comments to be reviewed by

312I also note that the language of Executive Orders 12866 and 13563 is indeed quite flexible.
Executive Order 12866, section 6(a)(1 ) reads: "… each agency should afford the public a meaningful
opportunity to comment on any proposed regulation, which in most cases should include a comment period of
not less than 60 days". Executive Order 13563, section 2(b) reads: "… [t]o the extent feasible and permitted by
law, each agency shall afford the pu blic a meaningful oppor tunity to comment thro ugh the Internet on any
proposed regulation, with a comment period that should generally be at least 60 days". (Mexico's submission,
footnote 34 to para. 42 (quoting Exhibits US-27 and MEX-2, respectively (emphasis added by Mexico))).
313Mexico's submission, para. 47.
314The United States observed, in particular, that Mexico said it would welcome an early opportunity to
review the proposed new US measures in the context of the requirements under Article 2.9 of the
TBT Agreement. (United States' oral statement, referring to Mexico's submission, para. 50)
315United States' submission, para. 15(4).
316United States' submission, para. 19 (referring to APA, section 553(c)).
317United States' submission, para. 20 (referring to Exhibit US-22).
318Mexico's submission, para. 47.
319The United States further contended that the USDA had actually asked for three or four months to
conduct the revision of the COOL amendment.

the USDA will be also limited. This in turn should make revision of the modified regulation, taking
into account the comments received, easier and less time consuming. Third, the "concise general
statement" providing for the reasons justifying regu latory action could be similar to that of the
2009 Final Rule, which consisted of 50 pages of detailed background information and extensive
cost-benefit analyses that might well apply also to the modified rule. For these reasons, I consider
that the United States should allow approximately one month for the USDA to review the comments
received, and take them into account when revising the modified COOL regulation.
89. In addition, the United States submits that, in accordance with US law, a certain period of
time must elapse between the publication of a regulation and its entry into force. In this regard, the
parties agreed at the oral hearing that, in determ ining the reasonable period of time, I should keep in
mind that a Member can be considered to have complied with the DSB's recommendations and
rulings only when the implementing measure enters into force, and not when it is adopted and
published. The United States further explains that , while the APA requires at least 30 days between
publication of a final rule and its entry into force 320, the CRA requires that Congress be provided at
least 60 days to review a major rule before it enters into force. 321 Mexico argues that the APA
contains considerable flexibility allowing a rule to be made effective more quickly 322, but that a
one-month period between publication and entry in to force is, in any event, appropriate. 323 I note, at
this point, that the APA does not refer to major rules. At the oral hearing, the United States
emphasized that a modification of the COOL measure will likely raise novel legal or policy issues and
have an effect on the economy of more than $100 million, hence qualifying as a "significant rule"
under Executive Order 12866 and as a "major rule" under the CRA.
324 Accordingly, the United States
argued that the 60-day review period required by th e CRA for major rules should be granted in the
present case. Although I am aware of Canada's argument that it cannot be presumed that a

320United States' submission, para. 19 (referring to APA, section 553(d)).
321United States' submission, para. 24 (referring to CRA, section 801(a)(3)). The definition of "major"
rule is set forth in the Small Business Regulatory Enfo rcement Fairness Act of 1996, section 804(2)(A). It
provides for a definition essentially equivalent to that of "significant" rule in Executive Order 12866, section
3(f)(1), that is, having an annual effect on the economy of $100 million or more. (See United States' submission,
footnote 33 to para. 24 (referring to Exhibit US-9)) (see also supra, footnote 303)
322Mexico notes that the APA provides that: "[t]he requ ired publication or service of a substantive rule
shall be made not less than 30 days before its effective date, except […] (3) as otherwise provided by the agency
for good cause found and published with the rule". (Mexico's submission, para. 41 (quoting APA, section 553(d)
(Exhibit MEX-1) (emphasis added by Mexico))).
323Mexico's submission, para. 47.
324United States' oral statement (referring to Executive Order 12866, section 3(f)(1) and (4)). Executive
Order 12866 also qualifies as "significant" any regulatory action that is likely to result in a rule that may "[r]aise
novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in
this Executive order". (Executive Order 12866, section 3(f)(4) (Exhibit US-27))

modification to the COOL measure will be, by definition, a major rule
325, I also take note of the
United States' assertion at the oral hearing that, th e COOL regulation being "a $2.6 billion rule", any
modification will very likely exceed the $100 million threshold. On balance, there is a strong
possibility that a modified COOL regulation may be considered a major rule. Should it be the case,
I note that the CRA clearly establishes a 60-day pe riod for Congressional review, with no flexibility.
In the light of this, I consider that it is reasona ble to grant the United States 60 days between the
publication of the amended COOL regulation and its entry into force.
90. In sum, the United States submits that the re gulatory process in the United States consists of
several procedural steps326 that normally take to 12 months. 327 In addition, the United States requests
two months for Congressional review before a final rule enters into force. I have addressed each of
the steps described by the United States and the fl exibilities available within the US legal system
throughout the normal rulemaking process. As other arbitrators in the past, I consider that the
implementing Member is expected to use whatever fl exibility is available within its legal system to
implement promptly the recommendations and rulings of the DSB. In the light of the existence of
such flexibilities, if the United St ates decides to modify the COOL re gulation, I am confident that it
can adopt a modified COOL regulation in a period of approximately eight months from the date of
adoption of the DSB's recommendations and rulings. These eight months encompass:
(i) three months for the preparatory phase; (ii) one month for the OMB's review and interagency
clearance of the proposed rule; (iii) two months for comments; (iv) one month to review the
comments and revise the rule accordingly; and (v) one month for the OMB's review and interagency
clearance of the final rule before publication. In addition, I consider th at two months should be
allowed between the publication of the modified COOL regulation and its entry into force. At this
juncture, I note that particular steps may take longer than the periods I have considered above.
However, there are also flexibilities that would allow the United States to speed up the process in
other stages so that the overall period of time does not become longer.

325Canada submits that, as with the United States' implication that any modified COOL regulation
would constitute a "significant" rule for the purposes of Executive Order 12866, the United States' submission
does not support the assertion that the implementing measure is likely to be a "major" rule under the CRA.
(Canada's submission, para. 62) See also supra, footnote 303.
326United States' submission, para. 14.
327United States' submission, para. 15.

(ii) Interim Final Rule
91. Canada and Mexico submit that the most important flexibility available to the United States is
the possibility of introducing regulatory changes through "interim final rules". 328 Interim final rules
become effective without prior notice and a public comment period. Public comments are solicited
after the rules are published and become operative. If the comments persuade the agency that changes
are needed, the agency may revise the interim fina l rule and publish a final rule reflecting those
changes.329 The APA does not explicitly refer to interim final rules. However, Canada and Mexico
highlight that, according to the APA, the standard rulemaking procedure will apply except "when the
agency for good cause finds … that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest". 330 Canada and Mexico submit that the United States
routinely employs interim final rules using this "good cause" exception, and that, as a matter of fact, it
did so for the initial COOL regulation.331
92. Although the United States did not discuss interi m final rulemaking in its submission, it did
respond to Canada's and Mexico's arguments in this regard at the oral hearing. The United States
acknowledged that interim final rules speed up the rulemaking process, but argued that they deviate
from the normal US regulatory course of action and, t hus, constitute an extraordinary procedure. It
also contended that the "good cause" exception is only available where standard regulatory procedures
are "impractical, unnecessary, or contrary to the public interest" 332, and that the government's burden
to show that such a good cause exists is a heavy one. According to the United States, in practice, the
use of interim final rules is generally limited to t hose cases in which the statute establishes a specific
date for entry into force. This was the case, the United States noted , for the 2008 Interim Final Rule
implementing the COOL statute, which was issued using the "good cause" exception. The exception
was justified by the fact that the COOL statute est ablished a specific effective date and, absent any
rulemaking, market participants could have been s ubject to potential sanctions despite the fact that
they had no way of knowing how to comply with the law.

329Canada's submission, para. 49 (referring to Exhibit CDA-19, p. 704 and Exhibit CDA-20, p. 7);
Mexico's submission, para. 42.
330Canada's submission, para. 50 (quoting APA, section 553(b)(3)(B) (Exhibit CDA-21)); Mexico's
submission, para. 42 (quoting APA, section 553(b)(3)(B) (Exhibit MEX-1)).
332United States' oral statement (referring to APA, section 553(b)(3)(B)).

93. I am mindful of previous arbitrators' statemen ts that recourse to "extraordinary" procedures
cannot be expected.
333 However, in the light of the parties' arguments, I am not entirely persuaded
that interim final rules constitute the extraordinary procedure that the United States argues it to be. In
this regard, I find it illustrative that, in 1998, th e General Accounting Office (the "GAO") reported
that about half of the regulatory actions publishe d in the Federal Register during 1997 were published
without notice of proposed rulemaking 334, and that, in 2005, the GAO reported that "[d]irect and
interim final rules appear to account for hundred s of the final regulatory actions published each
year."335 Moreover, I have not been directed to any le gal basis providing that the use of interim final
rules should be generally limited to those cases in which the statute establishes a specific effective
date, as the United States suggests. In my view, given the fact that interim final rules enter into force
without prior notice and public comments, the Unite d States could bring itself into compliance with
the DSB's recommendations and rulings through an inte rim final rule reasonably faster than through a
rule adopted pursuant to the standard regulatory process.
(b) Legislative Action
94. The United States submits that if it made stat utory changes to bring the COOL measure into
compliance—a possibility that it has not ruled out 336—the entire process would take substantially
longer than 18 months, particularly considering that any such legislative changes would have to be
followed, in the United States' view, by regul ations adopted through the rulemaking process. 337
Canada asserts that legislative and regulatory change s do not have to occur sequentially, and that, in
any event, an amended COOL statute would prevail over the conflicting COOL regulation.338 Mexico
is of the view that if sufficient detail were provided in the COOL statute, it would be unnecessary for
the USDA to issue implementing regulations.
339 In addition, contrary to the United States' argument,
Canada and Mexico suggest that legislative change s could be implemented wi thin a relatively short

333Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)), para. 49 (referring to Award of the
Arbitrator, Korea – Alcoholic Beverages (Article 21.3(c)) , para. 42; Award of the Arbitrator, Chile – Price
Band System (Article 21.3(c)) , para. 51; and Award of the Arbitrator, US – Offset Act (Byrd Amendment)
(Article 21.3(c)), para. 74).
334Canada's submission, para. 50 (referring to US General Accounting Office, Federal Rulemaking:
Agencies Often Published Final Actions Without Proposed Rules , GAO/GGD-98-126, 31 August 1998 (Exhibit
CDA-23)).
335Mexico's submission, footnote 36 to para. 42 (re ferring to US Government Accountability Office;
Federal Rulemaking, GAO-06-228T, 6 November 2005, p. 10 (Exhibit MEX-3)).
337United States' submission, para. 6 and footnote 4 thereto. The United States never suggested, as
potential means of implementation, a stand-alone statutory change.
338Canada's submission, para. 21.
339Mexico's submission, para. 55 (referring to Exhibit MEX-12).

period of time.340 They both consider that the draft 2012 Fa rm Bill can serve as a suitable legislative
vehicle to implement statutory changes to the COOL statute 341, and argue that the Neugebauer
Amendment342 may allow the House and the Senate to adopt substantive modifications at the
"conference committee".343
95. Previous arbitrators have noted that "imple mentation through administrative action usually
takes a shorter period of time than impl ementation through legislative action." 344 However, past
arbitrators have also noted that the United States' legislative process is characterized by a considerable
degree of flexibility. 345 Canada and Mexico provide various examples of US legislation passed in
short periods of time. For instance, Canada observ es that the amendments to the Federal Food, Drug,
and Cosmetic Act were passed within less than two months, and that the Temporary Surface
Transportation Extension Act of 2010 was passed in one day. 346 Mexico highlights that the American
Jobs Creation Act of 2004 was passed in five an d one half months, the American Recovery and
Reinvestment Act of 2009 became law in thr ee weeks, and the Homebuyer Assistance and
Improvement Act of 2012 was passed in three days. 347 At the oral hearing, the United States stressed
that these statutes were mainly enacted either in re sponse to the financial crisis, or as a result of a
much longer process preceding the date in which the bill was introduced in Congress. 348 However,
the evidence suggests, and the United States implic itly acknowledged when repl ying to Canada's and

341Canada's submission, para. 28; Mexico's submission, paras. 52-54.
342See supra, footnote 297.
343Canada's submission, paras. 36-39; Mexico's submission, para. 54. The "conference committee"
must reconcile the differences between the House version and the Senate version of a bill. "If the conference
committee cannot reach agreement, the bill dies. If the conference committee reaches agreement, a conference
report is prepared, which then must be approved by both chambers, in identical form. Once the bill proposed by
the conference committee is approved by both chambers, it can be sent to the President for a pproval." (United
States' submission, para. 44 (referring to Exhibits US-17 and US-21))
344Award of the Arbitrator, US – Stainless Steel (Mexico) (Article 21.3(c)), para. 53 (referring to Award
of the Arbitrator, Australia – Salmon (Article 21.3(c)) , para. 38; Award of the Arbitrator, US – Section 110(5)
Copyright Act (Article 21.3(c)) , para. 34; Award of the Arbitrator, Canada – Pharmaceutical Patents (Article
21.3(c)), para. 49; Award of the Arbitrator, Canada – Patent Term (Article 21.3(c)) , para. 41; Award of the
Arbitrator, Chile – Price Band System (Article 21.3(c)) , para. 38; Award of the Arbitrator, US – Offset Act
(Byrd Amendment) (Article 21.3(c)) , para. 57; and Award of the Arbitrator, US – Oil Country Tubular Goods
345Award of the Arbitrator, US – 1916 Act (Article 21.3(c)) , para. 39; Award of the Arbitrator, US –
Gambling (Article 21.3(c)), para. 49.
346Canada's submission, paras. 30 and 31 (referring to Exhibits CDA-12, CDA-13, CDA-14, and
CDA-15).
347Mexico's submission, para. 57 (referring to Exhibits MEX-14, MEX-15, and MEX-16).
348The United States contended at the oral hearing th at Canada and Mexico simplistically use the date
when a particular bill is introduced on the floor of the House or the Senate as the beginning of the legislative
process. However, according to the Un ited States, this date is often not a particularly accurate indicator of the
actual start of the legislative process.

Mexico's examples, that the US Congress can indeed pass legislation within somewhat compressed
timeframes if it needs to do so.
96. The United States asks me to determine the reasonable period of time for implementation
through regulatory action, but it "has not ruled out the possibility of a statutory change as part of
bringing its measure into compliance".
349 Although it is not for an arbitrator acting pursuant to
Article 21.3(c) of the DSU to determine the manne r in which a Member should achieve compliance,
in the event that the United Stat es chose to pursue compliance through legislative action, I am not
persuaded that in the present case this should take longer than the period that is required for
implementation by standard regulat ory means, as set out above. I am not convinced that legislative
action would have to be followed by a standard re gulatory process, and I do not believe that the entire
process would take longer than 18 months, as the United States suggests. 350 I first note that there
appears to be enough flexibility in the US legislativ e process to allow for the approval of legislation
within short timeframes. The examples provided by Canada and Mexico are illustrative in this
respect. I also observe that, if a modified COOL statute established a sp ecific effective date, the
possibility to use an interim final rule would si gnificantly speed up the implementing regulatory
process. In this regard, I recall that the United St ates itself has acknowledged that interim final rules
are used, in practice, when there is a statutory deadline. It has also submitted that this was the case for
the 2008 Interim Final Rule implementing the COOL st atute. For these reasons, I consider that the
United States could bring itself into compliance w ith the DSB's recommendations and rulings through
legislative action followed by regulatory action with in the same period of time I have determined for
standard regulatory action.
2. Conclusion
97. The United States has not yet decided whet her it will seek compliance with the DSB's
recommendations and rulings through legislative action followed by regulatory action, or through
regulatory action alone, but has requested that I determine the reasonable period of time needed for
implementation through regulatory action. 351 With this in mind, I have first considered the period of
time within which regulatory action could be completed in the United States. Given the flexibilities
available in respect of the rulemaking process, I ha ve determined that eight months should suffice for
the United States to adopt a modified COOL regul ation. In addition, I have concluded that
two months should be allowed between the publicati on of the regulation and its entry into force.

350United States' submission, para. 6.
351United States' submission, para. 7. See supra, footnote 271.

Further, I have addressed the possibility of using an interim final rule, which enters into force without
prior notice and public comment. I have noted that , if the United States chooses to modify the COOL
regulation through an interim final rule, it should be able to comply with the DSB's recommendations
and rulings reasonably faster than if it chooses to follow the standard regulatory process. Finally,
with respect to legislative action, I have observed that the flexibilities available in the US legislative
process allow the passage of legislation in short tim eframes, whenever required. Moreover, should
regulatory action be needed in addition to legislativ e action, this could be done speedily through an
interim final rule. Accordingly, I consider that th e United States should be able to comply with the
DSB's recommendations and rulings through legislativ e action followed by regulatory action within
the same period of time in which it could complete standard regulatory action.
98. I am mindful that it is not for me to determine the manner in which the United States must
achieve compliance, and I acknowledge that the Unite d States has a measure of discretion in selecting
the means of implementation that it deems most appropriate. 352 My mandate is limited to determining
the "reasonable period of time" for implementation in the present WTO disputes. In this respect,
I conclude that, regardless of whether the Un ited States chooses to pursue implementation through
standard regulatory action, through an interim fina l rule, or through legislative action followed by
regulatory action, it can complete domestic im plementation of the DSB's recommendations and
rulings within 10 months from the date of adoption of the Panel and Appellate Body Reports in these
disputes, that is, by 23 May 2013.
99. At this juncture, I recall Mexico's assertion that the determination of the reasonable period of
time in this arbitration should be considered in the context of Article 21.2 of the DSU, which provides
that "[p]articular attention should be paid to matters affecting interests of developing country
Members."353 In Mexico's view, considering that Mexican cattle are being discriminated as a result of
the COOL measure, and that for every month that the United States delays implementation Mexican
cattle producers are being economically harmed, I shoul d give special attention to how the reasonable
period of time will affect Mexico's interests.
354 Mexico also notes that it is the only developing
country Member involved in the present case.355 As I mentioned earlier, the text of Article 21.2 of the
DSU requires consideration of the interests of both implementing and complaining developing
country Members.

352Award of the Arbitrator, Colombia – Ports of Entry (Article 21.3(c)), para. 63.
353Mexico's submission, para. 29.
354Mexico's submission, para. 33.
355Mexico's submission, para. 30.

100. At the oral hearing, Canada contended that there was no differentiation made by either the
Panel or the Appellate Body in terms of impact of the COOL measure on the Canadian cattle industry
and the Mexican cattle industry. It also highlight ed that the only differe nce between Canada and
Mexico as to the impact of the COOL measure is the fact that, while Mexico does not have a hog
industry, the Canadian hog industry is also affected by the COOL measure. I take note of Mexico's
argument, at the oral hearing, that the cattle sector is extremely important for its development, and
that it is responsible for one million direct jobs a nd two million indirect jobs in Mexico. However,
I consider that the period of time I have granted the United States to complete domestic
implementation of the DSB's recommendations and rulings is "the shortest period possible" within the
US legal system.
356 Therefore, I am not persuaded that Me xico's status as a developing country, and
the importance of the cattle sector to its economy, s hould change my final determination of the period
of time within which the United States can complete domestic implementation of the
recommendations and rulings adopted by the DSB.
3. Article 2.12 of the TBT Agreement
101. The United States recalls that the COOL measu re was found by the Appellate Body and by
the Panel to be a technical regulation w ithin the meaning of Annex 1.1 to the TBT Agreement, and
that, in US – Clove Cigarettes, the Appellate Body had found that Article 2.12 of the TBT Agreement,
as clarified by paragraph 5.2 of the Doha Ministerial Decision 357, requires that Members allow a
period of at least six months between the publication and the entry into force of technical
regulations.358 The United States contends that, consiste nt with the Appellate Body's finding in US –

356Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 51 (referring to Award of
the Arbitrator, US – Offset Act (Byrd Amendment) (Article 21.3(c)), para. 44).
357Article 2.12 of the TBT Agreement provides:
Except in those urgent circumstances referred to in paragraph 10, Members
shall allow a reasonable interval be tween the publication of technical
regulations and their entry into force in order to allow time for producers in
exporting Members, and particularly in developing country Members, to
adapt their products or methods of production to the requirements of the
importing Member.
Paragraph 5.2 of the Doha Ministerial Decision provides:
Subject to the conditions specified in paragraph 12 of Article 2 of the
Agreement on Technical Barriers to Trad e, the phrase 'reasonable interval'
shall be understood to mean normally a period of not less than 6 months,
except when this would be ineffective in fulfilling the legitimate objectives
pursued.
(Supra, footnote 57)
358United States' submission, para. 27 (referring to Appellate Body Report, US – Clove Cigarettes ,
para. 288).

Clove Cigarettes, it will have to allow for an additional pe riod of six months between the publication
and notification of the modified COOL regulation and its entry into force.359
102. Mexico submits that Article 2.12 of the TBT Agreement is "irrelevant" for my analysis,
considering that the meaning of the term "reasonabl e period of time" is the "shortest period of time
possible within the legal system" of the implementing Member, and that the TBT Agreement is not
within the legal system of the United States. 360 As such, Mexico argues, Article 2.12 of the
TBT Agreement cannot provide a justification for granting the United States additional time to bring
the COOL measure into compliance within the meaning of Article 21.3(c) of the DSU.361 Canada and
Mexico also contend that Article 2.12 of the TBT Agreement does not require a period of six months
between the publication and the entry into force of a technical regulation where, as is the case here,
producers in exporting Members do not need to adap t their products or methods of production to the
technical regulation's requirements.362
103. The United States requests that, due to the requirement of Article 2.12 of the TBT Agreement,
I add six months to the reasonable period of time that is necessary to publish an amended COOL
technical regulation in the United States. I recall that I have already granted the United States
two months between the publication of a modified COOL regulation and its entry into force, based on
the US domestic regulatory process.
363 Here, however, I am addressing the United States' request that
the time between publication and entry into force s hould be six months because of the requirement of
Article 2.12 of the TBT Agreement.
104. I begin by observing that the adoption of a modified technical regulation seems to be within
the range of possible means by which the United States could implement the DSB's recommendations
and rulings. In this respect, unless the United St ates decides to repeal the COOL measure, a
modification of the existing COOL regulation would most likely constitute a technical regulation.
Thus, if the United States chooses to implement the DSB's recommendations and rulings by adopting
a modified technical regulation, the request of the United States and the responses by Canada and
Mexico raise two distinct questions that I need to answer in order to determine whether Article 2.12 of
the TBT Agreement justifies the United States' request for si x months in addition to the time required
to adopt an amended COOL regulation. First, I should consider whether compliance with Article 2.12

359United States' submission, para. 28.
360Mexico's submission, paras. 60 and 61 (quoting Award of the Arbitrator, Brazil – Retreaded Tyres
(Article 21.3(c)), para. 51).
361Mexico's submission, para. 62.
363See supra, para. 89.

is a factor that I have to take into account in determining the reasonable period of time under
Article 21.3(c) of the DSU, when compliance involves the issuance of a technical regulation. Second,
assuming that compliance with another WTO obligation, such as Article 2.12 of the TBT Agreement,
is a relevant consideration under Article 21.3(c) of the DSU, I should determine whether Article 2.12
applies in this case so that compliance with it re quires that the United States be granted six months
between the publication and the entry into force of the amended COOL regulation.
105. I shall turn first to the relevance of other WTO obligations, such as Article 2.12 of the
TBT Agreement, to the determination of the reasonable period of time under Article 21.3(c) of the
DSU. I recall that according to Article 21 of the DSU "[p]rompt compliance with recommendations
or rulings of the DSB is essential in order to en sure effective resolution of disputes." If it is
impracticable to comply immediately, Members shall have a reasonable period of time to comply.
The arbitrator in EC – Hormones found that the reasonable period of time "should be the shortest
period possible within the legal system of the [implementing] Member".
364 Article 21.3(c) identifies a
maximum of 15 months as a guideline for arbitrator s acting under Article 21.3(c), but states that the
reasonable period of time may be longer or shorter depending on "the particular circumstances".
106. Article 21 of the DSU does not exclude that the requirement to comply with another
WTO obligation, which affects the time needed fo r implementation, may have to be taken into
account in the determination of the reasonable period of time. Indeed, Article 21.3(c) states that the
length of the reasonable period of time depends upon "the particular circumstances". I agree with the
arbitrator in EC – Hormones that the reasonable period of time s hould be the shortest period possible
within the legal system of the implementing Memb er. However, I am not convinced that this
excludes that other international obligations like, notably, WTO obligations, could be relevant for
implementation, and the period needed for it, in a given case.
107. I recall that the arbitrator in US – Offset Act (Byrd Amendment) stated that " [e]ach and every
piece of legislation enacted with a view to implementing recommendations and rulings of the
DSB must be designed and drafted in the light of the implementing Member's rights and obligations
under the covered agreements."365 I understand this statement to mean that a Member complying with
DSB recommendations and rulings must ensure that its implementing measures not only comply with
the WTO obligations that are the subject of the DS B's recommendations and rulings, but also with its
other obligations under the covered agreements. I also note that the arbitrator in Chile – Alcoholic

364Award of the Arbitrator, EC – Hormones (Article 21.3(c)), para. 26.
365Award of the Arbitrator, US – Offset Act (Byrd Amen dment) (Article 21.3(c)) , para. 60. (original
emphasis)

Beverages stated that "[t]he concept of reasonableness, which is, of course, built into the notion of 'a
reasonable period of time' for implementation, inhe rently involves taking into account the relevant
circumstances."366 This in my view includes circumstan ces where a Member's implementing measure
needs to conform to its other WTO obligations and this would affect the implementation process.
108. I note that the question of the relevance of other international ob ligations (even non-WTO
obligations) to the determination of the reasonable period of time has already arisen in previous
arbitrations. The arbitrators in EC – Chicken Cuts and in Brazil – Retreaded Tyres were asked to
consider whether a decision to be taken by the World Customs Organization and the negotiation of a
new import regime within MERCOSUR367 respectively, should factor as "particular circumstances" in
the determination of the reasonable period of time. In both instances, the arbitrators found that "an
arbitrator under Article 21.3(c) may reasonably e xpect that implementation would ordinarily be
achieved by means entirely within the implementing Member's lawmaking procedures"
368, while
"[r]ecourse to such external processes will not ordi narily form part of the implementation of the
recommendations and rulings of the DSB", and that recourse to external decision-making "is not
entitled to the same deference as in the case of an implementation procedure that is entirely within
that Member's domestic legal system". 369 These arbitrators considered moreover that "an
implementing Member seeking to go outside its domestic decision-making processes bears the burden
of establishing that 'this external element of its proposed implementation is necessary for, and
therefore indispensable to, that Member's full and effective compliance with its obligations under the
covered agreements'."370
109. Thus, the arbitrators in EC – Chicken Cuts and in Brazil – Retreaded Tyres did not exclude
that also external elements, such as decisions of ot her international organizations, may be relevant to
the determination of the reasonable period of time if the implementing Member can show that these
are indispensable for its full and effective compliance with its WTO obligations. I observe that, while
in those arbitrations the relevance of non-WTO ob ligations was at issue, in the present case a
WTO obligation is at issue, namely, Article 2.12 of the TBT Agreement. If non-WTO obligations may
be relevant to the determination of a reasonable period of time, I consider that other WTO obligations
would a fortiori be relevant for determining the length of the reasonable period.

366Award of the Arbitrator, Chile – Alcoholic Beverages (Article 21.3(c)), para. 39.
368Award of the Arbitrator, EC – Chicken Cuts (Article 21.3(c)), para. 51.
369Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 80 (quoting Award of the
Arbitrator, EC – Chicken Cuts (Article 21.3(c)), para. 52).
370Award of the Arbitrator, Brazil – Retreaded Tyres (Article 21.3(c)) , para. 80 (quoting Award of the
Arbitrator, EC – Chicken Cuts (Article 21.3(c)), para. 52).

110. In this respect, the Appellate Body has consiste ntly upheld the principle that the provisions in
the WTO covered agreements are all provisions of one treaty, the Marrakesh Agreement Establishing
the World Trade Organization (the "WTO Agreement") and that, therefore, they should be interpreted
in a coherent and consistent manner, giving mean ing to all applicable provisions harmoniously. The
Appellate Body also held that, since Members ha ve entered into cumulativ e obligations under the
covered agreements, they should be mindful of th eir actions under one agreement when taking action
under another.
371 Thus, a Member that is implementi ng DSB recommendations and rulings pursuant
to Article 21 of the DSU cannot ignore its other WT O obligations, even if taking into account these
other WTO obligations may in certain cases result in a longer period of implementation.
111. Having established that Article 2.12 of the TBT Agreement cannot be disregarded as a matter
of principle as a provision that may be relevant to the determination of the reasonable period of time
under Article 21.3(c) of the DSU, I now turn to the merit of the requirement of Article 2.12, in order
to determine if it justifies extending the reasonable period of time by six months, as the United States
requests me to do.
112. Article 2.12 of the TBT Agreement provides:
Except in those urgent circumstances referred to in paragraph 10,
Members shall allow a reasonable interval between the publication of
technical regulations and their entry into force in order to allow time
for producers in exporting Members, and particularly in developing
country Members, to adapt their products or methods of production
to the requirements of the importing Member.
113. Paragraph 5.2 of the Doha Ministerial Decision provides:
Subject to the conditions specified in paragraph 12 of Article 2 of the
Agreement on Technical Barriers to Trade, the phrase 'reasonable
interval' shall be understood to mean normally a period of not less
than 6 months, except when this would be ineffective in fulfilling the
legitimate objectives pursued.
114. In US – Clove Cigarettes, the Appellate Body upheld the Panel's finding that paragraph 5.2 of
the Doha Ministerial Decision constitutes a subseque nt agreement between the parties, within the

371Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 570; Appellate
Body Report, US – Upland Cotton , paras. 549 and 550; Appellate Body Report, Argentina – Footwear (EC) ,
para. 81 and footnote 72 thereto (referring, in turn, to Appellate Body Report, Korea – Dairy, para. 81;
Appellate Body Report, US – Gasoline, p. 23, DSR 1996:I, 3, at 21; Appellate Body Report, Japan – Alcoholic
Beverages II, p. 12, DSR 1996:I, 97, at 106).

meaning of Article 31(3)(a) of the Vienna Convention on the Law of Treaties 372, regarding the
interpretation of the term "reasonable interval" in Article 2.12 of the TBT Agreement.373 Accordingly,
the Appellate Body considered that, "taking into account the interpretative clarification provided by
paragraph 5.2 of the Doha Minister ial Decision, Article 2.12 of the TBT Agreement establishes a rule
that 'normally' producers in exporting Members require a period of 'not less than 6 months' to adapt
their products or production methods to the requi rements of an importing Member's technical
regulation."
374 The Appellate Body clarified that "the u se of the term 'normally' in paragraph 5.2
indicates that the rule establishing that forei gn producers require a minimum of 'not less than
6 months' to adapt to the requirements of a techni cal regulation admits of derogation under certain
circumstances."375
115. The Appellate Body observed that "Article 2.12 expressly states that the rationale for
providing a 'reasonable interval' between the publica tion and the entry into force of a technical
regulation is 'to allow time for producers in expo rting Members, and particularly in developing
country Members, to adapt their products or met hods of production' to the requirements of the
importing Member's technical regulation." 376 However, in cases wher e "producers can adapt their
products or production methods to the requirements of an importing Member's technical regulation in
less than six months, a period of six months or more cannot be considered to be a 'reasonable interval'
within the meaning of Article 2.12". 377 The Appellate Body further noted that paragraph 5.2 of the
Doha Ministerial Decision allows an importing Me mber to depart from the obligation to provide
six months between publication and entry into force, if this interval would be "ineffective in fulfilling
the legitimate objectives pursued".378
116. Thus, the Appellate Body did not consider that Article 2.12, as clarified by paragraph 5.2 of
the Doha Ministerial Decision, contains a rigid ru le that in all circumstances Members must allow
six months between the publication of a technical regulation and its entry into force. Rather, the
clarification in paragraph 5.2 of the Doha Minist erial Decision of the phrase "reasonable interval" in
Article 2.12 as meaning "[n]ormally a period of no l ess than 6 months" is explicitly made subject to
the conditions of Article 2.12, where the "reasona ble interval" is meant to allow producers in
exporting countries to adapt their products or me thods of production to the requirements of the

372Done at Vienna, 23 May 1969, UN Treaty Series, Vol. 1155. p. 331.
373Appellate Body Report, US – Clove Cigarettes, para. 268.
374Appellate Body Report, US – Clove Cigarettes, para. 272.
375Appellate Body Report, US – Clove Cigarettes, para. 273.
376Appellate Body Report, US – Clove Cigarettes, para. 282.
377Appellate Body Report, US – Clove Cigarettes, para. 282.
378Appellate Body Report, US – Clove Cigarettes, para. 282.

importing Member. Accordingly, the "normal" peri od of six months may be reduced in situations
where producers in exporting countries need less time or even no time at all to adapt to the technical
regulation. Moreover, an importing country may re duce the six-month period if this period would be
ineffective to fulfil the legitimate objectives pursued by the technical regulation.
117. I observe that, at the oral hearing in this arbitr ation, both Canada and Mexico stated that their
producers would not need any time to adapt thei r products or methods of production to the
requirements of a modified COOL regulation. In particular, they asserted that the products they
export to the United States are livestock, that is, liv e animals that will be raised and/or slaughtered
within the United States. Consequently, any adjustments required by the new COOL regulation
would affect US processors and retailers, rather th an Canadian and Mexican exporters. Canada and
Mexico further noted that if the United States a llowed six months between the publication of an
amended COOL regulation and its entry into fo rce—absent withdrawal of the existing COOL
regulation—this would have the effect of extending the application of the existing COOL regulation,
which was found to discriminate against imported liv estock from Canada and Mexico. I fail to see
how a provision such as Article 2.12 of the TBT Agreement, which is intended to protect producers in
exporting countries, can be used to prolong the app lication of an existing measure that has been found
to discriminate against the same producers.
118. In addition, I recall that, as the Appellate Body clarified in US – Clove Cigarettes ,
paragraph 5.2 of the Doha Ministerial Decision a llows an importing Member to depart from the
obligation to provide six months between publication an d entry into force, if this interval would be
"ineffective in fulfilling the legitimate objectives pursued".
379 If the United States chooses to
implement the DSB's recommendations and rulings in US – COOL by adopting a modified technical
regulation, such an implementing measure would be taken also with the objective to achieve prompt
compliance with the DSB's recommendations and ru lings. To allow six months between publication
and entry into force of the modified technical regulation, as the United States proposes, could not be
considered effective in fulfilling the legitimate objective of prompt compliance with the DSB's
recommendations and rulings. Thus, the need to co mply promptly with the DSB's recommendations
and rulings would allow the United States to depart from the rule that "normally" six months should
elapse between the publication and the entry into force of a technical regulation.
119. Finally, as I recalled above, the Appellate Body h as consistently upheld the principle that the
provisions of the WTO covered agreements are all provisions of one treaty, the WTO Agreement.

379Appellate Body Report, US – Clove Cigarettes, para. 282.

Therefore, they "should be interpreted in a cohe rent and consistent manner, giving meaning to all
applicable provisions harmoniously". 380 The Appellate Body has also held that "Members have
entered into cumulative obligations under the covered agreements and sh ould thus be mindful of their
actions under one agreement when taking action under another." 381 In the light of this, I have already
noted that a Member that is implementing DSB recommendations and rulings pursuant to Article 21
of the DSU cannot ignore its other WTO obligations, such as Article 2.12 of the TBT Agreement, even
if taking into account these other WTO obligations may in certain cases delay implementation. By the
same token, however, a Member that is under an obligation to comply should do so promptly, while
taking into account the requirement of Article 2.12 of the TBT Agreement. Thus, a coherent and
consistent interpretation of Article 21 of the DSU and of Article 2.12 of the TBT Agreement does not
lead to the conclusion that the reasonable peri od of time should automatically be extended by
six months if implementation involves passing or amending a technical regulation.
120. In the light of the above, I consider that the United States is not required in this case to wait
for six months before putting into force a modified COOL regulation if it enacts a technical regulation
in order to comply with the DSB's recommendati ons and rulings. Rather, Article 2.12 of the
TBT Agreement does not prevent the United States from putting the modified COOL regulation into
force within a shorter timeframe or even upon public ation, considering that Canada and Mexico have
stated that their producers would need no time to adapt their products and production methods to the
modified COOL regulation.
121. I, therefore, conclude that Article 2.12 of the TBT Agreement does not justify in the
circumstances of this case granti ng the additional period of time re quested by the United States under
that provision to implement the recommendations and rulings of the DSB in the US – COOL disputes.
IV. Award
122. In the light of the above considerations, I cons ider that the reasonable period of time should
be the period of time necessary for the United St ates to implement the DSB's recommendations and
rulings within its domestic legal system and that the requirement of Article 2.12 of the
TBT Agreement does not justify granting additional time in this case.

380Appellate Body Report, US – Upland Cotton, paras. 549 and 550; Appellate Body Report, Argentina
– Footwear (EC), para. 81 and footnote 72 thereto (referring, in turn, to Appellate Body Report, Korea – Dairy,
para. 81; Appellate Body Report, US – Gasoline, p. 23, DSR 1996:I, 3, at 21; Appellate Body Report, Japan –
Alcoholic Beverages II , p. 12, DSR 1996:I, 97, at 106; and Appellate Body Report, India – Patents (US) ,
para. 45).
381Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 570.

123. I, therefore, determine that the reasonable peri od of time for the United States to implement
the recommendations and rulings of the DSB in these disputes is 10 months from the date of adoption
of the Panel and Appellate Body Reports on 23 July 2012. The reasonable period of time will thus
end on 23 May 2013. In reaching this conclusion, I have considered that this period of time should
allow the United States to implement the recommendations and rulings of the DSB regardless of
whether it decides to do so by regulatory action alone or by legislative action followed by regulatory
action.
Signed in the original at Geneva this 22nd day of November 2012 by:

Giorgio Sacerdoti
Arbitrator