30 July 2015
A World Trade Organization ("WTO") dispute settlement panel has issued its report on United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, finding that the United States is in violation of its obligations under the relevant provisions of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement"). The panel concluded that the United States has acted inconsistently with various provisions of the SPS Agreement, leading to nullification or impairment of benefits accruing to Argentina, and recommended that the United States brings its measures into conformity with the SPS Agreement. As the United States has already lifted the ban on beef from Northern Argentina and recognized Pantagonia as foot-and-mouth (“FMD”)-free while the dispute was on-going, the panel decision may not have significant impact on Argentina's meat exports.
Pursuant to Title 9 of the US Code of Federal Regulations, Part 94, the United States prohibits the importation of animals and animal products from regions not included in the list of FMD-free regions maintained by the Animal and Plant Health Inspection Service ("APHIS"). However, a region or country can request to be recognized as FMD-free or can seek approval to export specific products to the United States under procedures set forth in 9 CFR 92.2.
Argentina alleged that the United States had unduly delayed the review of Argentina's requests for importation of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as free from FMD, and that this delay had resulted in the United States’ continued prohibition on importing fresh (chilled or frozen) beef from Northern Argentina and animals, meat and other animal products from the Patagonian region.
The panel first established that the US measures are SPS measures subject to the disciplines of the SPS Agreement. Notably, the panel found that the procedures in 9 CFR 92.2 are part of the process to determine whether products from a country or region pose a particular risk of introduction or dissemination of a pest or livestock disease into the United States and are, thus, "regulations, requirements and procedures" within the second sentence of Annex A(1). The panel further noted that, as the procedures are for the purpose of determining the disease status of a region in order to decide whether imports will be authorized, they are "control, inspection and approval procedures" within the scope of Article 8 and Annex C(1).
The panel acknowledged that "not every lapse of time amounts to a delay, as a certain period of time is usually necessary for a Member to undertake and complete a control, inspection or approval procedure." However, in examining all the facts and circumstances presented, and with references to the standard processing time reflected in APHIS' policy and practice and World Organization for Animal Health ("OIE") guidelines, the panel concluded that the United States' failure to act on Argentina's application was outside the normal course of the procedure and constituted undue delay within the meaning of Article 8 and Annex C(1)(a).
Argentina also alleged that the US measures are not based on the relevant international standards, guidelines or recommendations of the Terrestrial Code developed under the OIE. The panel agreed with Argentina, finding that the US measures contradict the Terrestrial Code's recommendations for import measures to apply (i) on product-specific basis to shipments of fresh (chilled or frozen) beef from countries or zones that vaccinate fresh meat of cattle and buffaloes (the United States considers such regions as "FMD-infected" and not "FMD-free"); and (ii) to zones or compartments that are FMD-free where vaccination is not practised (the United States applies on a country-wide basis). The panel further found that the United States did not maintain the measures based on risk assessment or scientific justification, and that the measures were more trade restrictive than necessary.
Finally, the panel found that the United States had discriminated against Argentina in prohibiting importation of the meat products; the United States had allowed the same meat products from Uruguay, which had similar conditions to Argentina, to be imported