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Lawyers, other representatives, expert(s), tribunal’s secretary

Final reports of the Panel

TABLE OF WTO AND GATT CASES CITED IN THIS REPORT

Short TitleFull case title and citation
Argentina – Hides and Leather Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished Leather, WT/DS155/R and Corr.1, adopted 16 February 2001, DSR 2001:V, 1779
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, 1527
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body Report WT/DS332/AB/R, DSR 2007:V, 1649
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 2000:VI, 2985
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry , WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, 3043
Canada – Pharmaceutical Patents Panel Report, Canada – Patent Protection of Pharmaceutical Products, WT/DS114/R, adopted 7 April 2000, DSR 2000:V, 2289
Chile – Alcoholic Beverages Appellate Body Report, Chile – Taxes on Alcoholic Beverages, WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, DSR 2000:I, 281
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R, adopted 12 January 2009
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry, WT/DS366/R and Corr.1, adopted 20 May 2009
Dominican Republic – Import and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19 May 2005, DSR 2005:XV, 7367
Dominican Republic – Import and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, 7425
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos‑Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243
EC – Approval and Marketing of Biotech Products Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, Corr.1, and Add.1 to Add.9, adopted 21 November 2006, DSR 2006:III-VIII, 847
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591
EC – Bananas III(Article 21.5 – US) Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas –Recourse to Article 21.5 of the DSU by the United States, WT/DS27/AB/RW/USA and Corr.1, adopted 22 December 2008
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 3791
EC – Sardines Appellate Body Report, European Communities – Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359
EC – Sardines Panel Report, European Communities – Trade Description of Sardines, WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate Body Report WT/DS231/AB/R, DSR 2002:VIII, 3451
EC – Trademarks and Geographical Indications Panel Report, European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WT/DS290/R (Australia), adopted 20 April 2005, DSR 2005:VIII, 3499 to DSR 2005: X, 4603
India – Autos Panel Report, India – Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 1827
India – Quantitative Restrictions Panel Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999, as upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, 1799
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179
Japan – Semi-Conductors GATT Panel Report, Japan – Trade in Semi-Conductors, L/6309, adopted 4 May 1988, BISD 35S/116
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3
Korea – Various Measures on Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, 5
Korea – Various Measures on Beef Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as modified by Appellate Body Report WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, 59
Mexico – Taxes on Soft Drinks Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/R, adopted 24 March 2006, as modified by Appellate Body Report WT/DS308/AB/R, DSR 2006:I, 43
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice, WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, 2151
US – Corrosion-Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations", WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 1619
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross‑Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475)
US – Stainless Steel (Korea) Panel Report, United States – Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea, WT/DS179/R, adopted 1 February 2001, DSR 2001:IV, 1295
US – Superfund GATT Panel Report, United States – Taxes on Petroleum and Certain Imported Substances, L/6175, adopted 17 June 1987, BISD 34S/136

ABBREVIATIONS

AbbreviationDescription
2002 Farm Bill The Farm Security and Rural Investment Act of 2002
2008 Farm Bill Food, Conservation, and Energy Act of 2008
2009 Final Rule (AMS) Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, published on 15 January 2009 as 7 CFR Part 65
BCI procedures Additional procedures for the protection of business confidential information
AMS Agriculture Marketing Service (of the United States Department of Agriculture)
APA Administrative Procedure Act
CBP US Customs and Border Protection
C.F.R Code of Federal Regulations
COOL Country of Origin Labelling
CUSTA Canada – United States Free Trade Agreement
DSB Dispute Settlement Body
DSU Dispute Settlement Understanding
FSIS Food Safety and Inspection Service (of the United States Department of Agriculture)
GATT 1994 General Agreement on Tariffs and Trade 1994
HFCS High-fructose corn syrup
Interim Final Rule (AMS) Interim Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, published on 1 August 2008 as 7 CFR Part 65
Interim Final Rule (FSIS) Interim Final Rule on Mandatory Country of Origin Labelling of Muscle Cuts of Beef (including Veal), Lamb, Chicken, Goat, and Pork, Ground Beef, Ground Lamb, Ground Chicken, Ground Goat, and Ground Pork, published on 28 August 2008 as 9 CFR Parts 317 and 381
JBS JBS USA, Inc.
NAFTA North American Free Trade Agreement
PACA Perishable Agricultural Commodities Act of 1930
R-CALF Ranchers-Cattlemen Action Legal Fund
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
U.S.C. United States Code
USDA United States Department of Agriculture
Vilsack letter Letter to "Industry Representative" from the United States Secretary of Agriculture, Thomas J. Vilsack, of 20 February 2009
WTO World Trade Organization

I. INTRODUCTION

A. COMPLAINTS OF CANADA AND MEXICO

1.1.
On 1 and 17 December 2008, respectively, Canada and Mexico independently requested consultations with the United States, pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXII of the General Agreement on Tariffs and Trade (GATT 1994), Article 14 of the Agreement on Technical Barriers to Trade (TBT Agreement), Article 11 of the Agreement of Sanitary and Phytosanitary Measures (SPS Agreement) and Article 7 of the Agreement on Rules of Origin, with respect to the measures and claims set out below.1 On 7 May 2009, Canada and Mexico each requested supplemental consultations with the United States.2
1.2.
Canada and Mexico requested, pursuant to Article 4.11 of the DSU, to join in each other's consultations.3 Nicaragua and Peru requested to join in the consultations requested by Canada, and Peru also requested to join in the consultations requested by Mexico.4 The United States informed the Dispute Settlement Body (DSB) that it accepted the requests of Canada and Mexico.5
1.3.
Consultations were held between each complaining party and the United States. The United States and Canada held their consultations on 16 December 2008 and 5 June 2009. The United States and Mexico held their consultations on 27 February 2009 and on 5 June 2009. None of these consultations led to a mutually satisfactory resolution.6

B. ESTABLISHMENT AND COMPOSITION OF THE PANEL

1.4.
On 7 and 9 October 2009, respectively, Canada and Mexico each requested the establishment of a panel, pursuant to Article 6 of the DSU, with standard terms of reference.7
1.5.
At its meeting on 19 November 2009, the DSB established a single panel, pursuant to the requests of Canada in document WT/DS384/8 and Mexico in document WT/DS386/7 and Corr.1, in accordance with Article 9.1 of the DSU.8
1.6.
At that meeting, the parties to the dispute agreed that the Panel should have standard terms of reference. The Panel's terms of reference are the following:

"To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by Canada in document WT/DS384/8 and Mexico in document WT/DS386/7 and Corr.1, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."9

1.7.
On 30 April 2010, Canada and Mexico requested the Director-General to determine the composition of the panel, pursuant to Article 8.7 of the DSU.
1.8.
On 10 May 2010, the Director-General composed the Panel as follows:

Chairman: Mr Christian Häberli

Members: Mr Manzoor Ahmad

Mr João Magalhães

1.9.
Argentina, Australia, Brazil, Canada (for WT/DS386), China, Colombia, the European Union, Guatemala, India, Japan, Korea, Mexico (for WT/DS384), New Zealand, Peru, and Chinese Taipei reserved their rights to participate in the Panel proceedings as third parties.

C. PANEL PROCEEDINGS

1.10.
The Panel held the first substantive meeting with the parties on 14-15 September 2010. The second substantive meeting with the parties was held on 1-2 December 2010. Enhanced third party rights granted by the Panel, after consultations with the parties, allowed the third parties to participate in both the first and second substantive meetings of the Panel. The sessions with third parties took place on 15 September 2010 and 2 December 2010. In light of the preference expressed by the parties during the organizational meeting with the Panel, and in accordance with the procedures adopted on 18 June 2010, the meetings with the parties were open to public viewing by means of simultaneous closed-circuit television broadcasting of the proceedings to a separate room.
1.11.
On 14 January 2011, the Panel issued the descriptive part of its Panel Reports. The Panel issued its Interim Reports to the parties on 20 May 2011. The Panel issued its Final Reports to the parties on 29 July 2011.

II. FACTUAL ASPECTS

A. MEASURES AT ISSUE10

2.1.
The claims brought by Canada and Mexico concern the United States' country of origin labelling (COOL) requirements for meat products.
2.2.
Canada submits that the COOL measure consists of the following provisions:11

(a) the Agricultural Marketing Act of 1946, as amended by the Farm Security and Rural Investment Act of 2002 ("2002 Farm Bill") and the Food, Conservation, and Energy Act of 2008 ("2008 Farm Bill");

(b) the Interim Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, published on 1 August 2008 as 7 CFR Part 65 ("Interim Final Rule (AMS)") and on Mandatory Country of Origin Labelling of Muscle Cuts of Beef (including Veal), Lamb, Chicken, Goat, and Pork, Ground Beef, Ground Lamb, Ground Chicken, Ground Goat, and Ground Pork, published on 28 August 2008 as 9 CFR Parts 317 and 381 ("Interim Final Rule (FSIS)");

(c) the Final Rule on Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts, published on 15 January 2009 as 7 CFR Part 65 (the "2009 Final Rule (AMS)");

(d) the letter to "Industry Representative" from the United States Secretary of Agriculture, Thomas J. Vilsack, of 20 February 2009 (the "Vilsack letter"); and

(e) any modifications, administrative guidance, directives or policy announcements issued in relation to items (a) through (d) above.

2.3.
Mexico submits that the measures relating to the COOL provisions adopted by the United States include the following:12

(a) the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq.), as amended by the Farm Security and Rural Investment Act of 2002 (Section 10816 of Public Law 107‑171) and the Food, Conservation, and Energy Act of 2008 (Section 11002 of Public Law 110‑246);

(b) Interim Final Rule – Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts (published in 73 Federal Register 45106, 1 August 2008);

(c) Final Rule – Mandatory Country of Origin Labelling of Beef, Pork, Lamb, Chicken, Goat Meat, Wild and Farm‑Raised Fish and Shellfish, Perishable Agricultural Commodities, Peanuts, Pecans, Ginseng, and Macadamia Nuts (7 CFR Parts 60 and 65);

(d) Interim Final Rule – Mandatory Country of Origin Labelling of Muscle Cuts of Beef (including Veal), Lamb, Chicken, Goat and Pork, Ground Beef Ground Lamb, Ground Chicken, Ground Goat, and Ground Pork (9 CFR Parts 317 and 381, published in 73 Federal Register 50710, 28 August 2008);

(e) the letter from Thomas Vilsack, Secretary of Agriculture (United States Department of Agriculture, USDA), to Industry Representatives (20 February 2009), cited in USDA News Release No. 0045.09, "Vilsack Announces Implementation of Country of Origin Labelling Law" (20 February 2009); and

(f) any modification or amendment to measures (i) through (v) above, including any further implementing guidance, directives or policy announcements or any other document issued in relation to those measures.

B. PROCEDURAL HISTORY

1. Additional procedures for the protection of business confidential information ("BCI procedures")

2.4.
At the organizational meeting held on 21 May 2010, Canada and Mexico mentioned the anticipated need for special working procedures to cover business confidential information. On 16 and 17 June 2010, Canada, having consulted with Mexico and the United States, submitted the parties' proposed text for BCI procedures. After considering the proposed text, the Panel adopted BCI procedures on 18 June 2010, thereby creating rights and obligations for all parties in these proceedings, including third parties. These procedures were adopted according to, and are an integral part of, the Panel's working procedures of 18 June 2010 as attached in Annex E.

2. Procedures for open hearings

2.5.
At the DSB meeting of 19 November 2009, the United States stated that it was the parties' agreed intention to have open hearings in these proceedings.13 Mexico, at the same meeting, did not object to open hearings specifically for these proceedings, without prejudice to its systemic views on open hearings. At the organizational meeting held on 21 May 2010, Canada indicated that it would submit the parties' proposed procedures for open hearings to the Panel for its consideration. Having received comments from the United States, Canada submitted their proposed text on 17 June 2010. Based on the proposed text, the Panel adopted procedures for open hearings on 18 June 2010. Mexico had an opportunity to comment on the procedures and accepted the procedures without any changes. A copy of the procedures for open hearings is attached in Annex F.

3. Enhanced third party rights

2.6.
On 12 May 2010, Australia sent a letter to the Panel requesting enhanced third party rights in these panel proceedings. At the organizational meeting of 21 May 2010, all parties commented on this request.
2.7.
Having carefully considered Australia's request and the parties' comments thereon, the Panel decided to grant the following enhanced rights to all third parties in these panel proceedings:

(a) participation in the first and second substantive meetings of the Panel;

(b) access to the parties' first and second written submissions; and

(c) the right in both the first and second substantive meetings to ask questions to the parties and other third parties without any obligation to respond on the part of the parties and other third parties.

2.8.
The Panel's working procedures and the procedures for open hearings reflect these enhanced third party rights. In addition to the above-listed enhanced third party rights adopted on 18 June 2010, the Panel, after having consulted the parties, allowed the third parties to receive copies of the parties' written responses to the Panel's questions following the first substantive meeting. The Panel considered that this would facilitate the third parties' participation in the second substantive meeting with the parties. The third parties were not, however, invited to submit a written submission prior to the second substantive meeting.

4. Amicus curiae briefs

2.9.
On 22 November 2010, the Panel received an unsolicited amicus curiae brief. On 26 November 2010, the Panel forwarded the amicus curiae brief to the parties, with a copy to the third parties. The Panel noted the information contained in the letter and that it was cited in the United States' second written submission.

5. Request for separate reports

2.11.
At the second substantive meeting on 1-2 December 2010, the United States requested, pursuant to paragraph 18 of the Panel's working procedures, that the Panel issue its findings in the form of a single document containing two separate reports with common sections on the Panel's findings and separate conclusions and recommendations for each complaining party. Canada agreed and Mexico did not object to the United States' request. The Panel has prepared its Reports accordingly.

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. CANADA

3.1.
Canada requests that the Panel find that:

(a) the COOL measure of the United States is inconsistent with its obligations under the TBT Agreement, in particular Articles 2.1 and 2.2; and

(b) the COOL measure of the United States is inconsistent with its obligations under the GATT 1994, in particular Articles III:4, X:3(a) and XXIII:1(b).

3.2.
Canada therefore requests that the Panel recommend that the United States bring the COOL measure into conformity with its obligations under the TBT Agreement and the GATT 1994, subject to the provision of Article 26.1 of the DSU in respect of GATT Article XXIII:1(b).

B. MEXICO

3.3.
Mexico requests that the Panel find that:

(a) the COOL measures are inconsistent with Articles III:4 and X:3 of the GATT 1994 and Articles 2.1, 2.2, 2.4 and 12 of the TBT Agreement; and

(b) the COOL measures nullify or impair benefits accruing to Mexico under the GATT 1994 within the meaning of Article XXIII:1(b) of the GATT 1994.

3.4.
Mexico requests that the Panel make such recommendations that are necessary for the United States to bring itself into conformity with these provisions.

C. UNITED STATES

3.5.
The United States requests that the Panel reject the claims made by Canada and Mexico in their entirety.

IV. ARGUMENTS OF THE PARTIES

4.1.
The arguments of Canada, Mexico and the United States, as set out in the executive summaries of their submissions provided to the Panel in accordance with paragraph 15 of the working procedures, are attached to these reports as annexes (see List of Annexes, pages vii-ix). They are also referred to later in these Reports in the context of the Panel's analysis of claims and defences.

V. ARGUMENTS OF THE THIRD PARTIES

5.1.
Argentina, Australia, Brazil, Canada (for WT/DS386), China, Colombia, the European Union, Guatemala, India, Japan, Korea, Mexico (for WT/DS384), New Zealand, Peru, and Chinese Taipei reserved their rights to participate in the Panel proceedings as third parties.
5.2.
The arguments of those third parties that provided to the Panel submissions14, executive summaries and oral statements are attached to these Reports as annexes (see List of Annexes, pages vi-viii). Argentina, India, Peru and Chinese Taipei did not present written submissions to the Panel. Argentina, India, and Chinese Taipei did not present oral statements at either substantive meeting of the Panel. Korea and China presented oral statements at the first and second substantive meetings respectively, but in closed session.

VI. INTERIM REVIEW

6.1.
On 20 May 2011, the Panel submitted its Interim Panel Reports to the parties. On 17 June 2011, Canada, Mexico and the United States each submitted written requests for the review of precise aspects of the Interim Reports. On 30 June 2011, Canada, and on 1 July 2011, Mexico and the United States submitted comments on a number of requests for review presented by the other parties. None of the parties requested an interim review meeting.
6.2.
In accordance with Article 15.3 of the DSU, this section of the Panel's reports sets out the Panel's response to the arguments made at the interim review stage, providing explanations where necessary. The Panel has modified aspects of its reports in the light of the parties' comments where it considered these appropriate, as explained below. The Panel has also made certain technical and editorial corrections and revisions to the Interim Panel Reports for the purposes of clarity and accuracy. References to sections, paragraph numbers and footnotes in this section relate to the Interim Panel Reports, except as otherwise noted.

A. MEASURES THAT FALL WITHIN THE PANEL'S TERMS OF REFERENCE

1. "USDA's clarification documents" (paragraphs 7.22, 7.23, and relevant parts of the Article X:3(a) section)

6.3.
The United States points out that, in its second written submission, it objected to the inclusion of USDA's clarification documents (Exhibits CDA-29, 30, 31), referenced by Canada in its oral statement in the first panel meeting, within the Panel's terms of reference.15 Accordingly, the United States submits that paragraph 7.22 is inaccurate in stating that the United States did not object to the inclusion of these clarification documents in the Panel's terms of reference.
6.4.
Furthermore, the United States argues that these clarification documents were neither identified in nor in effect at the time of the complainants' panel requests because they were superseded when the 2009 Final Rule (AMS) was published and became effective. For example, the United States argues, Mexico did not mention these documents until its second written submission.16 The United States also asserts that non-public pressure (Exhibits MEX-33, 55, 56, 57), as referenced by Mexico, is neither a measure nor within the Panel's terms of reference.
6.5.
Based on the above, the United States requests the Panel to modify paragraphs 7.22 and 7.23 and to change the reference in footnote 40 so as to refer to paragraph 28 of the United States' second written submission instead of paragraph 9 of the United States' first written submission. Further, consistent with this suggested modification, the United States requests that references to non-public pressure, implying that this constitutes a measure, be removed from the discussions of Article X:3(a) of the GATT 1994 in the Interim Reports, including paragraphs 7,813, 7,823, 7,836, 7,837, 7,839, and 7,841.
6.6.
Canada considers that these documents are covered by the terms "any modifications, administrative guidance, directives or policy announcements issued in relation to items (i) through (iv) above" in its panel request.
6.7.
Mexico argues that the United States' comments above are inaccurate. Mexico considers that the terms "any further implementing guidance, directives or policy announcements" in its panel request sufficiently cover the associated guidelines as well as the non-public pressure, as identified by Mexico in its written submissions. This, according to Mexico, encompasses the clarification documents referenced by the United States. Regarding the non-public pressure, Mexico argues that this was part of the US government guidance associated with the COOL measure and thus an integral part of the COOL measure. Mexico submits that it was evidence of the administration of the measure within the meaning of Article X:3(a) of the GATT 1994.
6.8.
The Panel considers that the United States' comments on the clarification documents referenced by Canada are moot as Canada did not pursue the position that "any modifications, administrative guidance, directives or policy announcements issued in relation to items (i) through (iv) above" form part of the COOL measure. Although Canada made a statement on the so-called "clarification documents" in its oral statement at the first substantive meeting, Canada, in response to a question from the Panel after that meeting, clarified its position by focusing only on the COOL statute, the 2008 Interim Final Rule (AMS), the 2009 Final Rule (AMS), and the Vilsack Letter, as instruments forming part of one single measure.17
6.9.
Regarding the United States' comments in respect of these documents referred to by Mexico in the context of its claim under Article X:3(a) of the GATT 1994, they are evidence submitted to establish the USDA's acts of administering the COOL measure, but not the measure itself.18 As such, documents provided as evidence to establish a claim need not be identified in the panel request. It is the measure at issue that needs to be identified in the panel request for it to fall properly within the Panel's terms of reference. Further, the so-called "non-public pressure" is simply Mexico's categorization of certain types of evidence submitted to prove the USDA's act of administering the measure at issue rather than the measure itself. To accept the United States' argument will result in conflating the underlying measure with the acts of administration of such underling measure. In light of this, and as the United States' comments are premised on a mistaken understanding that these documents form a measure at issue that Mexico pursues separately from other identified measures at issue, we reject the United States' request and delete paragraphs 7.21-7.24 to avoid confusion as to the scope of the measures at issue that were properly identified and actually pursed by the complainants in the proceedings. We also added a footnote to the last sentence of paragraph 7,836 to clarify the nature of the non-public pressure referenced by Mexico in the context of its claim under Article X:3(a) of the GATT 1994.

2. Paragraph 7.24

6.10.
Mexico suggests a modification to paragraph 7.24 of the Interim Panel Reports in order to avoid any further confusion regarding whether "any implementing guidance, directives or policy announcements" are within the Panel's terms of reference. The United States does not agree with Mexico's suggested modification to paragraph 7.24. The United States does not believe that "any further implementing guidance, directives, or policy announcements" are within the scope of the Panel's terms of reference for the reasons set forth above in paragraphs 6.3-6.5.
6.11.
The Panel need not make the change suggested by Mexico as the Panel has already modified relevant parts of the Interim Panel Reports, including paragraph 7.24, in the context of the United States' comments on the USDA's clarification documents.

3. "USDA's implementing guidance" (paragraphs 7.26, 7.27-7.38)

6.12.
The United States submits that, in addition to the 2008 Interim Final Rule (AMS) and the 2008 Interim Final Rule (FSIS), the USDA's guidance (also referred to as USDA's clarification documents) had expired at the time of the Panel's establishment. The United States suggests that the Panel modify paragraph 7.26 so as to include the implementing guidance as part of the expired measures; address this fact in paragraphs 7.27-7.38; and conclude that conducting a separate examination of these instruments would not contribute to resolving the current dispute between the parties. Mexico argues that the Panel should reject the United States' suggestion. Mexico takes the position that although some of the documents referred to by Mexico were issued before the Panel's establishment, this does not necessarily mean that they had already expired.
6.13.
The Panel rejects the United States' request because, as explained above in paragraph 6.9, the so-called implementing guidance in this case is referred to as evidence of an act of administering the measure at issue (i.e. COOL measure) under Article X:3(a) of the GATT 1994.19 According to the Appellate Body, evidence of acts of administration submitted in the context of a claim under Article X:3(a) is not subject to temporal limitations.20 In the context of its claim under Article X:3(a) of the GATT 1994 during the panel proceedings, Mexico referred to the USDA's guidance as evidence of the United States' act of administration, which is reflected in, inter alia, the associated guidelines issued by USDA (Exhibits CDA-29; MEX-83) and the non-public pressure by the US government on individual companies (Exhibits MEX-33, 56-57). In other words, these documents that Mexico categorize as "associated guidelines" and "non-public pressure" are evidence of the United States' act of administering the COOL measure (measure at issue) within the meaning of Article X:3(a), but are not the measures at issue themselves.

4. Other comments

(a) Paragraph 7.19

6.14.
The United States submits that the 2009 Final Rule (FSIS) did not affirm the 2008 Interim Rule (FSIS). It therefore requests the Panel to modify the second sentence of paragraph 7.19 to more accurately describe the 2009 Final Rule (FSIS).
6.15.
Mexico objects to the United States' suggestion. Mexico refers to the Federal Register publication of 20 March 2009 (i.e. the 2009 Final Rule (FSIS)), which explicitly describes its action as the "Affirmation of the interim final rule".
6.16.
Taking into account the parties' comments, the Panel amended the text of the second sentence of paragraph 7.19 by directly citing the language of the Federal Register publication of 20 March 2009.

(b) Paragraph 7.28

6.17.
The United States suggests a modification to the fourth sentence of paragraph 7.28 for greater accuracy. The United States highlights that the addition of commingling flexibility is only one change made to the 2008 Interim Final Rule (AMS). Canada and Mexico object to the United States' suggestion as the United States' position is already stated in the first sentence of the same paragraph and the suggested modification would confuse rather than increase the accuracy of the paragraph.
6.18.
The Panel slightly modified the text of the fourth sentence of paragraph 7.28 in light of the parties' comments.

B. FACTUAL BACKGROUND

1. Paragraph 7.85

6.19.
The United States requests a modification to the second sentence of paragraph 7.85 so as to add a phrase that the 2002 Farm Bill delegated to USDA the decision on how to define origin for meat products derived from mixed origin animals. Mexico objects to this suggestion because, in its view, this additional information is irrelevant to the content of the concerned paragraph.
6.20.
The Panel agrees with Mexico's view and declines the United States' request.

2. Paragraph 7.93

6.21.
Canada requests the Panel to modify the description of category D meat contained in paragraph 7.93 by deleting the words "born, raised, or" or to add a footnote to clarify the type of animal used to produce meat marked as Label D under the COOL measure. The United States objects to Canada's request as it believes the current language of paragraph 7.93, item (D) accurately reflects the COOL statute. Further, Canada's suggested footnote refers to the requirements of the 2009 Final Rule (AMS), which the United States does not understand to be within the intended scope of this paragraph.
6.22.
The Panel declines Canada's request because paragraph 7.93 describes relevant part of the COOL statute as the United States submits. We added quotation marks in the relevant parts of paragraph 7.93 to indicate that the descriptions for the items listed are quoted directly from the text of the COOL statute.

3. Paragraph 7.94

6.23.
The United States requests a modification to paragraph 7.94 to more accurately reflect the provisions of the COOL statute and USDA's task in the rulemaking process concerning the use of four categories of muscle cut labels.
6.24.
Canada and Mexico objects to the United States' request.
6.25.
The Panel declines the United States' request. As Canada points out, we consider that the description of the 2009 Final Rule (AMS) in paragraph 7.94, in combination with paragraphs 7.95 to 7,106, sufficiently explains the circumstances in which the labels can be interchangeably used.

4. Paragraph 101

6.26.
The United States suggests that paragraph 7,101 be modified for greater accuracy regarding the description of the commingling permitted under the 2009 Final Rule (AMS) of meat derived from different categories. Mexico disagrees with this suggestion because, inter alia, the concerned paragraph addresses a different issue and the suggested modification is confusing.
6.27.
The Panel rejects the United States' suggestion because, as Mexico points out, paragraph 7,101 addresses a different issue, and the United States' suggested change is already reflected in the chart provided in paragraph 7,104.

5. Paragraph 7.126 and footnote 179

6.28.
Mexico requests the Panel to modify paragraph 7,126 and add a new sentence at the end of footnote 179 to fully reflect Mexico's arguments on the penalties with which the COOL measure can be enforced. The United States does not object to Mexico's request, but suggests that the United States' position on this issue also be added.
6.29.
Taking into account the comments of Mexico and the United States, the Panel made slight adjustments to paragraph 7,126 and footnote 179.

6. Paragraphs 7.127-7.131

6.30.
Mexico requests the addition of a new paragraph describing a relevant paragraph of the Vilsack letter.
6.31.
Given that the requested additional paragraph is described in paragraph 7,182 of the Interim Panel Reports, the Panel declines Mexico's request.

C. CLAIMS UNDER THE TBT AGREEMENT

1. Technical regulation

(a) Paragraph 7.178

6.32.
Mexico requests that the first sentence of paragraph 7,178 be modified so as to avoid stating that, on its face, the Vilsack letter is clearly not mandatory. The United States disagrees, arguing that the Vilsack letter explicitly describes its recommendations as voluntary.
6.33.
The Panel rejects Mexico's request – both in light of the US arguments and given that the sentence in question starts with the phrase "[o]n its face".

(b) Paragraph 7.195

6.34.
The United States suggests modifying paragraph 7,195 because the Canadian exhibits referenced in that paragraph merely refer to the Vilsack letter without explicitly mentioning any of the three specific suggestions contained in this letter. Canada objects to these changes suggested by the United States, noting that the exhibits in question show that certain industry participants have responded to the Vilsack letter in a way that resulted in the rejection of Canadian-born livestock. Canada adds that paragraph 7,195 uses the word "might".
6.35.
In light of the arguments of the United States and Canada, the Panel has slightly modified paragraph 7,195, although to a lesser extent than requested by the United States.

2. Article 2.1

(a) Introduction and legal test under Article 2.1 of the TBT Agreement – Paragraph 7.223

6.36.
The United States suggests inserting the phrase "as a minimum" into the chapeau,to make sure that the three criteria of the Article 2.1 legal test are only "minimum" criteria. Canada and Mexico disagree with this suggested modification. Canada emphasizes that the chapeau of paragraph 7,223 uses the word "includes", which does not exclude additional criteria. Mexico adds that the proposed change would describe an agreement that does not exist, for neither complainant agrees with the United States that the three criteria are only minimum criteria.
6.37.
The Panel rejects the suggestion of the United States because the chapeau of paragraph 7,223 uses the word "includes", and it also reproduces the key term "essential" from the quote that follows in the same paragraph. Rather, the Panel has decided to extend footnote 294 to paragraph 7,223 to explain that, according to the United States, "[i]n addition to these three 'minimum' elements, the text of TBT Article 2.1 requires the complaining party to establish that such [less favourable] treatment is in respect of the technical regulation [at issue]."

(b) Whether the COOL measure is a technical regulation – Paragraph 7.242

6.38.
The United States suggests modifying paragraph 7,242 to better reflect the relevant arguments in paragraphs 196-199 of the United States' first written submission. Canada and Mexico oppose this suggested modification, arguing that paragraph 7,242 properly summarises the arguments in paragraphs 196-199 of the United States' first written submission. Mexico adds that the United States has never withdrawn this argument. At the same time, Mexico concedes that the United States made an additional argument in its opening oral statement at the Panel's first substantive meeting. Accordingly, Mexico does not exclude adding, with minor modifications, part of the text that the United States would insert into paragraph 7,242.
6.39.
The Panel has decided to follow largely the suggestion of Mexico, by inserting – with minor modifications – part of the text suggested by the United States at the end of paragraph 7,242.

(c) Whether imported products are accorded less favourable treatment than like domestic products

(i) Paragraph 7.264

6.40.
Canada points out that it has never argued that the COOL measure does not involve de jure discrimination. The referenced portion of its first written submission noted that the COOL measure "does not explicitly require" less favourable treatment of imports. The United States argues that the phrase "does not explicitly require" covers de jure discrimination, and it adds that country of origin labelling may be origin-neutral.
6.41.
Although the Panel does not consider it necessary to determine in the abstract whether country-of-origin labelling may be origin-neutral, it has decided to modify paragraph 7,264, to reflect Canada's arguments more faithfully.

(ii) Paragraph 7.267

6.42.
The United States requests deleting part of the last sentence of paragraph 7,267 and replacing it with language that would reflect more faithfully an argument made by the United States at various points in the dispute, in particular in paragraph 143 of its first written submission. Mexico disagrees. It argues that the last sentence of paragraph 7,267 is almost identical to the relevant portion of paragraph 143 of the United States' first written submission. Mexico requests that if any changes are made to paragraph 7,267, the same language as paragraph 143 of the United States' first written submission should be used.
6.43.
The Panel has modified paragraph 7,267 accordingly by keeping the original last sentence, and by adding a new sentence following the arguments referenced by the United States.

(iii) Paragraph 7.276

6.44.
Mexico requests the Panel to modify paragraph 7,276 by adding a sentence summarizing Mexico's response to the US argument that it is possible to comply with the COOL measure without any segregation.
6.45.
In light of the United States' silence on this Mexican request, the Panel has decided to introduce the language suggested by Mexico, although only at the end of paragraph 7,276 and with corrected paragraph numbers in the footnote inserted at the end of the new sentence.

(iv) Paragraph 7.290

6.46.
The United States requests modifying paragraph 7,290 to indicate that Label A is the only label with no foreign element and further that Label D is the only label with no domestic element. Canada and Mexico object to these suggested modifications. Canada argues that the United States itself recognizes that Label D does not need to list when processing steps occur in more than one country. Thus, Label D could refer to muscle cuts from livestock that are born and raised in the United States and thus have some domestic element, but slaughtered abroad. As also reflected in paragraph 7,663 of the Interim Reports, Mexico argues that the suggested modifications are inaccurate because Label D could involve some domestic elements.
6.47.
The Panel rejects the modification suggested by the United States as it would address an issue that is not indispensable for analysing the complainants' claims under Article 2.1 of the TBT Agreement.

(v) Paragraph 7.299

6.48.
The United States suggests modifying paragraph 7,299, to reflect the full extent of the commingling provisions and the differences between the 2008 Interim Rule (AMS) and 2009 Final Rule (AMS) described in paragraphs 7,294-7.298 of the Interim Reports. Canada and Mexico disagree with this suggested modification. The complainants argue that it is the 2009 Final Rule (AMS) together with the COOL statute that imposes the requirements summarised in paragraph 7,299. Mexico adds that modifying the second sentence of paragraph 7,299, as suggested by the United States, would incorrectly indicate that the 2009 Final Rule (AMS) is the basis of the ineligibility of imported livestock for Label A, whereas the correct basis is the 2008 Farm Bill.
6.49.
Although the Panel agrees with the complainants, it has decided to make one minor modification to paragraph 7,299 in light of one of the suggestions by the United States.

(vi) Paragraph 7.314

6.50.
The United States requests modifying paragraph 7,314, to better reflect the US arguments on the Informa Report. Canada objects to these suggested modifications, arguing that paragraph 7,314 is sufficiently clear.
6.51.
The Panel has slightly modified paragraph 7,314 in light of these comments.

(vii) Paragraph 7.329

6.52.
The United States suggests modifying paragraph 7,329, arguing that "US sources" in the first sentence is used inappropriately to refer to the Congressional Research Service, which is not part of the US executive branch, and to the Food Marketing Institute, which is a private organization. Canada and Mexico object to this suggested modification. The complainants point out that CRS is part of the US government for the purposes of WTO law. Mexico adds that a private organization representing three quarters of all retail food sales in the United States is also undoubtedly a "US source". Further, Mexico disagrees with the US suggestion to delete the phrase that indicates that the COOL measure implies segregation.
6.53.
The Panel has modified paragraph 7,329 along the lines of the language suggested by the United States. The Panel does not consider that this modification would alter the intended meaning of the relevant sentence, or of the paragraph as a whole.

(viii) Paragraph 7.340

6.54.
The United States suggests modifying the first two sentences of paragraph 7,340. According to the United States, some plants may not accept both domestic and imported livestock. Further, muscle cuts processed in the United States are not eligible for Label D because they necessarily derive from animals slaughtered in the United States. Canada and Mexico disagree with the first modification suggested by the United States. Mexico argues that sourcing only domestic or imported livestock is a form of segregation. Canada adds that the first sentence of paragraph 7,340 starts with the word "[t]his", which is a reference to the preceding paragraph. As regards the suggested modification to the second sentence, Mexico is silent and Canada does not disagree.
6.55.
The Panel agrees with Canada that the first modification suggested by the United States is redundant. Paragraph 7,340 starts with the word "[t]his", which refers to the phrase "processing domestic and imported livestock and meat solely according to the price and quality of the products" in paragraph 7,335 (emphasis added). This is also confirmed by the five scenarios outlined in paragraph 7,337. As regards the second modification suggested by the United States, in the absence of objections by the complainants, the Panel has decided to delete the phrase ", but possibly four" at the end of the second sentence in paragraph 7,340.

(ix) Paragraph 7.348

6.56.
The United States requests the Panel to delete paragraph 7,348, arguing that commingling may take place already before the processing stage, e.g. at feedlots, as also illustrated by Exhibit US‑101. Canada and Mexico disagree. The complainants argue that the commingling flexibility in the 2009 Final Rule (AMS) is limited to processing on a single production day. As regards Exhibit US-101, Canada argues that the affidavits signify that the feedlot somehow tracked the origin of each of its animals and ensured that on each processing day the processor received at least one Mexican-born or -raised, one Canadian-born or -raised, and one US-born or -raised animal. Canada refers to its explanation earlier in the dispute as to how this tracking would need to be accomplished. Mexico argues that the various affidavits contained in Exhibit US-101 do not provide the option to certify that livestock were of Mexican or Canadian origin.
6.57.
The Panel agrees with the complainants that the 2009 Final Rule (AMS) does not provide an explicit legal basis for commingling before the processing stage. At the same time, although the Panel is not certain what conclusions it may draw from Exhibit US‑101, the Panel considers it more appropriate to delete paragraph 7,348. Even without paragraph 7,348, paragraph 7,349 sufficiently justifies the statement made in paragraph 7,347.

(x) Paragraph 7.361

6.58.
Mexico points out that the double square brackets marking the figure in paragraph 7,361 as BCI are redundant as the same figure is contained in paragraph 51 of the executive summary of Mexico's first written submission, which is attached to the Interim Reports as Annex A-2. The United States and Canada do not comment on this request by Mexico.
6.59.
The Panel has removed the double square brackets from paragraph 7,361.

(xi) Paragraph 7.367

6.60.
The United States suggests adding a sentence at the end of paragraph 7,367 to qualify this paragraph. The United States points out that a similar qualifier ends paragraph 7,370. Canada and Mexico object to this suggested addition. Canada notes that the statements referenced in paragraph 7,367 were made after the 2008 Interim Final Rule (AMS) entered into force. Mexico argues that this qualifier might reflect the United States' views but the Panel should not agree with it.
6.61.
The Panel does not believe it is necessary to modify paragraph 7,367. Instead, the Panel has deleted the final sentence qualifying paragraph 7,370.

(xii) Paragraph 7.368

6.62.
The United States suggests deleting paragraph 7,368 altogether, pointing out that it has never argued that the evidence referenced in that paragraph was anecdotal. The United States used the term "anecdotal" to describe other evidence submitted by the complainants. Canada and Mexico disagree with this suggested deletion. Mexico suggests deleting only the first sentence of paragraph 7,368 instead. Canada also believes that there is no need to delete the whole paragraph. Canada quotes the relevant section of the United States' second oral statement, noting that this statement used the word "anecdotal" with an unqualified reference to "evidence and economic studies that Canada and Mexico submit[ted]."
6.63.
The Panel notes that, as footnote 513 to the word "anecdotal" in paragraph 7,368 indicates, the United States used this word four times in its opening oral statement at the second meeting. Further, as Canada points out, the United States used it rather vaguely. At the same time, the complainants' exhibits referenced in paragraph 7,368 are not specifically mentioned in the United States' second oral statement. Accordingly, the Panel has deleted the first sentence of paragraph 7,368 and kept the rest of the paragraph.

(xiii) Paragraph 7.368, footnote 515

6.64.
Mexico asks the Panel to modify footnote 515 to paragraph 7,368 by adding a reference to Exhibit MEX-111, because this latter also includes the market share information marked as BCI in paragraph 7,368. Canada and the United States do not comment on this Mexican request.
6.65.
The Panel notes that Exhibit MEX-111 includes the market share information marked as BCI in paragraph 7,368. Accordingly, the Panel has modified footnote 515 as requested by Mexico. In addition, the Panel has removed the brackets around the market share information in paragraph 7,368 as, in light of Exhibit MEX‑111, it no longer qualifies as BCI.

(xiv) Paragraph 7.371

6.66.
The United States suggests modifying paragraph 7,371, to reach the conclusion that a photo of a "Product of the US, Canada and Mexico" label (Exhibit US-95) actually proves that commingling has been taking place. Canada and Mexico disagree with the suggested changes, arguing that the resulting paragraph would make the Panel reverse its original conclusion about these photos. Mexico also argues that commingling applies to muscle cuts, not to livestock. Mexico adds that paragraph 7,371 addresses commingling of Label A and B meat, and the US comments bear no relation to this issue.
6.67.
The Panel rejects the suggested changes. The suggested changes would add detailed arguments to paragraph 7,371 as to why photographs of Label B prove commingling. The Panel does not consider it appropriate to modify paragraph 7,371 to reach the opposite conclusion on the basis of arguments made by the United States only at the interim review stage.

(xv) Paragraph 7.373

6.68.
The United States references Exhibit US-101, and suggests modifying paragraph 7,373 to reflect that commingling is possible at the feedlot level. Canada and Mexico object to this suggested modification. Canada argues that the first affidavit in Exhibit US-101 only attests to the origin of livestock when marketed to a slaughter house, rather than, as the United States suggests, that commingling is occurring in either a feedlot or a slaughter house. Mexico reiterates that the COOL measure does not explicitly provide for commingling prior to processing.
6.69.
The Panel notes that paragraph 7,373 references paragraph 57 of the United States' second written submission. As Canada points out, it is not clear that Exhibit US-101 proves what the United States claims in paragraph 57 of its second written submission, in particular that commingling is in fact taking place at the feedlot stage. Accordingly, the Panel has decided to maintain the original text of paragraph 7,373.

(xvi) Paragraph 7.375

6.70.
The United States suggests deleting the last sentence of paragraph 7,375, arguing that commingling involving up to 14% of category A beef and up to 20% of category A pork does not correspond to a relatively minor share of commingled meat. Mexico points out that the last sentence of paragraph 7,375 uses the words of the United States' response to Panel question No. 91.
6.71.
In light of Mexico's comment, the Panel has decided to keep the last sentence of paragraph 7,375, although with certain modifications to better reflect the United States' relevant response.

(xvii) Paragraph 7.375, footnote 527

6.72.
The United States suggests deleting the reference to Exhibit US-146 from footnote 527 for lack of relevance. According to the United States, this exhibit does not refer to the actual labels used in the market but to the US supply of meat.
6.73.
The Panel notes that the sentence of paragraph 7,375 in question refers to arguments by the complainants. Accordingly, the Panel has decided to delete the reference to Exhibit US-146 from footnote 527 to paragraph 7,375.

(xviii) Paragraphs 7.385 and 7.415

6.74.
The United States suggests deleting paragraphs 7,385 and 7,415, which address the exclusion of imported products from US premium beef programmes. According to the United States, at least two of the exhibits referenced in paragraph 7,385 pre-date the 2009 Final Rule (AMS). Further, the United States argues that none of the other Canadian and Mexican exhibits referenced in paragraph 7,385, support the claim that Canadian and Mexican beef are being excluded from US premium programmes. Canada and Mexico object to these suggested deletions. Canada argues that it is irrelevant that some exhibits pre-date the 2009 Final Rule (AMS) because the former flexibility permitted under the 2008 Interim Final Rule (AMS) was taken away by US governmental action at the end of September 2008. Canada also refers to Exhibit CDA-36, in which Tyson states that "[its] approach will be to use the 'U.S.' or Category A label on all of our premium beef programs beginning early 2009". According to Canada, the rest of the evidence referenced in paragraph 7,385 provides the basis for a reasonable inference that the producers in question were excluded from premium US programmes. Mexico, in turn, references Exhibit MEX-33, which is a brochure by Tyson dated April 2009, and which reproduces the October 2008 Tyson letter contained in Exhibit CDA-36.
6.75.
In light of the complainants' comments, the Panel hasdecided to keep paragraphs 7,385 and 7,415 unchanged.

(xix) Paragraph 7.392

6.76.
The United States suggests adding a sentence to the end of paragraph 7,392 to reflect that Canadian and Mexican livestock were discounted vis-à-vis US livestock even before the COOL measure. Canada and Mexico disagree with the suggested new sentence. Canada argues that neither of the paragraphs that would be referenced in the new footnote supports the statement in the new sentence that there were consistent discounts for Canadian livestock "as a result of comparatively higher transport costs and currency fluctuations". The "basis" or "spread" referenced in Canada's first written submission applies to both Canadian and US cattle. The relevant chart in Exhibit US-30, cited to support the United States' position that "prices are generally lower" for Canadian cattle, is a bare chart with no indication of who prepared it or what data were used. Canada adds that both first written submissions refer, in relevant part, to Canadian cattle and not to hogs or to Mexican cattle. Mexico argues that this is the first time that the United States has argued that Mexican cattle received lower prices than US cattle. The relevant portions of the US and Canadian written submissions do not address Mexican cattle. Mexico refers to its submissions arguing that the price of Mexican cattle was freely determined before the COOL measure. Mexico also notes that the United States has not contested this argument. Further, Mexico argues that currency fluctuation is irrelevant as the price of Mexican livestock for export is negotiated in US dollars. In fact, as Exhibit MEX-48 demonstrates, at times before the COOL measure Mexican cattle received higher prices than US cattle. There is also no reason to consider that transportation costs are any different for Mexican cattle than for US-born cattle located near the US-Mexican border.
6.77.
In light of the complainants' comments, the Panel has decided to keep paragraph 7,392 unchanged.

(xx) Paragraph 7.384, footnotes 556 and 557

6.78.
Mexico argues that two Mexican Exhibits should be added to footnote 556 as evidence for the statement in paragraph 7,384 that "[s]everal suppliers reported that the price difference between imported and domestic livestock has become larger to the detriment of the latter". Further, Mexico requests that footnote 557 reference two additional Mexican Exhibits to support the phrase in the same sentence of paragraph 7,384 that "discounts for imported livestock appeared or existing ones increased as a result of the COOL measure".
6.79.
The Panel notes that the sentence in question starts with "[s]everal suppliers reported that…"; however, none of the four exhibits mentioned by Mexico originate from "suppliers". Accordingly, the Panel has decided to reject Mexico's request for referencing these exhibits in footnotes 556 and 557.

(d) Actual trade effects

(i) Paragraph 7.443

6.80.
The United States requests modifying paragraph 7,443 because numerous aspects of the Panel's Article 2.1 analysis preceding paragraph 7,443 involve looking at the trade effects of the COOL measure. Canadaand Mexico object to this suggested modification. Canada argues that the evidence referenced by the United States is not evidence of trade effects but of the discriminatory impact of the COOL measure. Evidence that US industry changed their practices precisely because of the COOL measure demonstrates changes in the conditions of competition to the detriment of Canadian livestock – and not a neutral change in trade volumes that may be unconnected with the measure at issue. Mexico argues that it is important for the report to distinguish the analysis of competitive conditions from a detailed analysis of actual trade effects.
6.81.
In light of the complainants' comments and the use of the term "in detail" in paragraph 7,443, the Panel has decided to keep paragraph 7,443 unchanged.

(ii) Paragraph 7.462, footnote 632

6.82.
The United States proposes to indicate in footnote 632 that the figures of the table in Exhibit US-28 do not include breeding animals. Canada does not object to this additional phrase.
6.83.
Accordingly, the Panel has changed footnote 632 to paragraph 7,462 as suggested by the United States.

(iii) Paragraphs 7.464 and 7.468

6.84.
The United States requests including in the analysis 2010 data which covers the first nine months and which would suggest that Canadian feeder and slaughter cattle exports to the United States increased by 6.8% with respect to the same time period in 2009.21 According to the United States this is line with data provided by Canada and indicating that average Canadian exports per month were higher in 2010 compared with 2009. Accordingly, the United States suggests modifying paragraphs 7,464 and 7,468. Canada opposes the proposed modifications for two reasons. First, conclusions based only on partial or extrapolated data are speculative. Second, drawing a conclusion based only on data submitted by the United States, as does the additional sentence proposed at the beginning of paragraph 7,464, would be inappropriate.
6.85.
The Panel rejects the suggested modifications to paragraphs 7,464 and 7,468. Reaching a conclusion based on partial data would involve introducing additional assumptions, and would render the data comparison less objective.

(iv) Paragraph 7.478

6.86.
With regard to the graph in paragraph 7,478, Canada points out that the legend does not clearly show a dotted line for imports of slaughter hogs, and that the reference to "Series 1" and "Series 2" is unclear.
6.87.
The Panel has corrected the graph accordingly.

(v) Paragraph 7.480, footnote 669

6.88.
The United States argues that since the parties did not dispute the fact that BSE restrictions in 2005 limited Canadian exports, the word "probably" should be deleted from footnote 669. Canada does not object to the suggested deletion.
6.89.
The Panel has replaced "probably" with "mostly" in footnote 669 to paragraph 7,480, to reflect that other factors could have also affected imports of Canadian cattle.

(vi) Paragraphs 7.485-7.486

6.90.
The United States suggests moving to paragraph 7,523 the discussion in paragraphs 7,485‑7,486 on Canada's choice of denominator in the econometric model produced by Professor Sumner. Canada does not object to this suggestion.
6.91.
The Panel notes that footnotes 704-705 to paragraph 7,523 already reference paragraphs 7,485-7.486. Accordingly, the Panel does not consider it necessary to move paragraphs 7,485-7.486 to paragraph 7,523.

(vii) Paragraph 7.513

6.92.
The United States suggests changing paragraph 7,513, arguing that the effects of the COOL measure did not start in 2008. The 2009 Final Rule entered into force in March 2009, and there is no mention of the COOL measure in Exhibit US‑156, which is referenced in the footnote to paragraph 7,513. Canada disagrees with the suggested changes because the reference date is the end of September 2008, when the COOL legislation and the 2008 Interim Final Rule (AMS) came into effect.
6.93.
The Panel rejects the suggested modification. The United States considered, in its own econometric study, September 2008 as the starting date for the COOL measure. In addition, the United States never raised this issue when criticizing the Sumner Econometric Study.

(viii) Paragraph 7.514

6.94.
The United States suggests using the word "attempt" instead of "are able" in paragraph 7,514 to define the objective of econometric studies. According to the United States, econometric studies, such as the Sumner Econometric Study, frequently fail to isolate and quantify the factors at play. Canada opposes this change arguing that well-designed econometric studies, like the Sumner Econometric Study, are able to isolate and quantify the various factors.
6.95.
The Panel notes thatstatistics tests may be used to assess whether an econometric model is flawed. Accordingly, the Panel rejects the change to paragraph 7,514 suggested by the United States.

(ix) Paragraph 7.517

6.96.
The United States suggests modifying paragraph 7,517 to make clear that, unlike the Sumner Econometric Study, the USDA Econometric Study did not analyse the hog market. Canada recognizes that the USDA Econometric Study did not cover the hog market. However, Canada disagrees with the change suggested by the United States, which could imply that two econometric studies had been undertaken: one for cattle and another one for hogs. In Canada's view, any modification to paragraph 7,517 should reflect that Canada submitted only one econometric study, i.e. the Sumner Econometric Study.
6.97.
The Panel hasmodified paragraph 7,517 in line with both parties' requests.

(x) Paragraph 7.522

6.98.
The United States suggests modifying paragraph 7,522 to reflect that there was a COOL impact on the price effect only for fed cattle but not for all livestock. Canada opposes the additional wording on the ground that the current paragraph correctly reflects that none of the parties submitted evidence suggesting that there was no COOL impact on the price basis for feeder cattle or hogs.
6.99.
The Panel has modified paragraph 7,522 to clarify its language, but only to the extent that the changes do not involve factual errors or unsubstantiated conclusions.

(xi) Paragraph 7.523

6.100.
The United States suggests modifying paragraph 7,523 to reflect US concerns with Canada's econometric models. In particular, the United States questions whether it is appropriate to base a legal analysis under Article 2.1 of the TBT Agreement on the use of an econometric study that purports to show trade effects. The United States also wonders whether a reduced form model, such as Exhibit CDA-152, properly captures price and export effects in a highly complex market like the North American livestock market. Canada disagrees with the suggested changes. Canada argues inter alia that the objective of the Sumner Econometric Study is to assess the differential effect of the COOL measure and not its "trade effect".
6.101.
The Panel has slightly modified paragraph 7,523 in light of the parties' comments.

(xii) Paragraph 7.530

6.102.
The United States suggests deleting the last sentence of paragraph 7,530. The United States argues that it never proposed that Canada should use overall trade in agricultural commodities as a (continuous) measure of economic recession. Canada disagrees with this suggested deletion, pointing out that the United States did mention the use of overall trade in agricultural commodities in its comments on Canada's response to the Panel's questions following the second substantive meeting. Canada suggests including a footnote at the end of the paragraph with the proper reference.
6.103.
The Panel has inserted such a footnote into paragraph 7,530, and kept the last sentence of this paragraph as is.

(xiii) Paragraph 7.532

6.104.
The United States suggestsmodifying paragraph 7,532, to elaborate on its criticisms of the Sumner Econometric Study in line with its comment on paragraph 7,523. Canada disagrees with the suggested changes for the same reasons as the ones it raised in the context of paragraph 7,523.
6.105.
The Panel has added a reference to paragraph 7,523 in footnote 717.

(xiv) Paragraph 7.539

6.106.
The United States suggests changing a word in paragraph 7,539 because a reduced form model is obtained from a system of equations by "rewriting", not "solving" the system using algebra. Canada disagrees with the United States, and believes that the term "rewritten" would be less accurate than "solved".
6.107.
The Panel considers that, in the circumstances of the dispute, it is more appropriate to leave paragraph 7,539 unchanged.

(xv) Paragraph 7.548

6.108.
The United States suggests modifying the Panel's analysis of the econometric studies as regards the findings of the USDA Econometric Study. In particular, the United States suggests dropping the last sentence of paragraph 7,548, which explains that potential multicollinearity calls into question the validity of certain findings of the USDA Econometric Study. Canada disagrees with the proposed changes, arguing that these would make the paragraph less accurate.
6.109.
The Panel hasslightly modified, but has not deleted, the last sentence of paragraph 7,548.

3. Article 2.2

(a) Objective pursued by the United States through the COOL measure: paragraphs 7.593, 7.624, 7.625, and 7.676

6.110.
The United States submits that the objective pursued through the COOL measure, as identified by the Panel in its Interim Report, has two aspects – providing as much information about origin as possible and reducing compliance costs. According to the United States, it did clarify these two aspects of the objective in the panel proceedings.22 The United States therefore requests that both of these aspects of the objective be reflected in the Panel Report in order to accurately portray the United States' position throughout the dispute. Specifically, the United States suggests that the Panel add the fact that the United States took into account the reduction of compliance costs for the market participants as part of the objective in the above-mentioned paragraphs.
6.111.
Canada disagrees with the changes proposed by the United States. Canada asserts that the United States repeatedly argued throughout the panel proceedings that its objective for purposes of Article 2.2 of the TBT Agreement was consumer information.23 The United States, argues Canada, never referenced an objective related to costs on domestic industry participants. As a result, Canada was never in a position to address whether such an objective was legitimate under Article 2.2. Canada also points out that although the United States stated that the costs of compliance were taken into account "in deciding how to fulfil that objective", it failed to state that those costs of compliance formed part of the objective itself.
6.112.
Mexico also objects to the United States' proposal. Mexico argues that the consideration of reducing compliance costs on market participants is only a way in which the United States purportedly intended to achieve the objective, but was not part of the objective itself. In Mexico's view, the United States is confusing the objective of the measure (i.e. providing as much clear and accurate origin information as possible to consumers) with the implementation of that measure (i.e. reduced compliance costs).
6.113.
The Panel rejects the United States' request for the following reasons. Based on the United States' arguments in the panel proceedings, the Panel decided that the objective as identified by the United States was "to provide consumer information on origin".24 The Panel was not presented with the argument from the United States that the reduction of compliance costs for market participants also formed part of the objective pursued by the United States through the COOL measure. As Mexico points out, the United States submitted that reducing compliance costs was one of the factors that it considered in implementing the COOL measure to achieve the objective of providing consumer information on origin.25 Reducing compliance costs therefore cannot form part of the objective itself.

(b) Legal interpretative approach under Article 2.2 – paragraphs 7.673 and 7.674

6.114.
The United States submits that a discussion of the United States' position with regard to the relationship between Article 2.2 of the TBT Agreement and Article XX of the GATT 1994 should reflect its argument and evidence submitted in support of its position. The United States reiterates its arguments put forward in the panel proceedings that the Panel should apply the legal interpretative approach under Article 5.6 of the SPS Agreement, but not that of Article XX of the GATT 1994, to Article 2.2 of the TBT Agreement. The United States suggests that the Panel modify paragraphs 7,673 and 7. 674, and add a new footnote to paragraph 7,673.
6.115.
Canada and Mexico do not consider it necessary to include the additional detail as suggested by the United States in paragraph 7,673, including the addition of a new footnote. Canada and Mexico submit that the paragraph accurately summarizes the United States' position.
6.116.
The Panel considers that the current texts in paragraphs 7,673 and 7,674 and footnote 880 accurately summarize the United States' position. To further clarify the United States' position however, we made slight adjustments to the texts of the concerned paragraphs and moved footnote 880 to the end of the first sentence at paragraph 7,673. We also added a footnote to paragraph 7,675.

D. TYPOGRAPHICAL ERRORS AND CLERICAL OBSERVATIONS

6.117.
The Panel has worked from the original version of the Interim Panel Reports. Further, as noted above, the Panel has incorporated all other comments by the parties on typographical errors in the Interim Panel Reports and has modified the Reports to the extent it deemed necessary.

VII. FINDINGS

A. OVERVIEW OF THE MATTERS BEFORE THE PANEL

7.1.
In this dispute, Canada and Mexico advance claims against the United States' measures governing the country of origin labelling ("COOL") requirements with respect to meat products. The complainants claim that the measures are inconsistent with Articles 2.1 and 2.2 of the TBT Agreement, and Articles III:4 and X:3(a) of the GATT 1994. The complainants have also advanced a non-violation claim under Article XXIII:1(b) of the GATT 1994.
7.2.
The complainants argue that the measures accord imported livestock treatment less favourable than that accorded to like domestic livestock inconsistently with Article 2.1 of the TBT Agreement, as well as Article III:4 of the GATT 1994. The complainants assert that this is because complying with the COOL requirements results in higher segregation costs for imported livestock, which in turn affects the competitive conditions of imported livestock in the market.
7.3.
Furthermore, the complainants claim that the COOL requirements are inconsistent with Article 2.2 of the TBT Agreement. According to the complainants, the true objective of the COOL requirements is to protect domestic industry, not to provide consumer information on origin as stated by the United States, and that, in the circumstances of this dispute, the provision of consumer information is not legitimate. The complainants state that there are less trade restrictive alternatives and, in any event, the COOL requirements do not fulfil the objective of providing consumer information on origin because labels under the COOL requirements convey confusing and inaccurate information on the origin of meat products.
7.4.
Finally, the complainants allege that the United States administered the COOL requirements in a manner inconsistent with Article X:3(a) of the GATT 1994. Canada claims that the United States administered the COOL requirements in an unreasonable manner by issuing the Vilsack letter. Mexico submits that an unreasonable, non-uniform, and partial administration of the COOL requirements is shown by in the shifts in the guidance provided by USDA on the COOL requirements, as reflected in the associated guidelines issued by USDA, non-public pressure by the US government on individual companies, and the Vilsack letter.
7.5.
Separately, Mexico presents claims under Articles 2.4 and 12 of the TBT Agreement. Mexico submits that the COOL measure is inconsistent with Article 2.4 because the United States failed to base its regulation on the General Standard for the Labelling of Prepackaged Foods ("CODEX-STAN 1-1985"), which Mexico claims is an international standard that is an effective and appropriate means for the fulfilment of the legitimate objective pursued by the United States. Mexico also argues that the COOL measure is inconsistent with Articles 12.1 and 12.3 of the TBT Agreement. It claims that the United States did not take into account Mexico's special needs as a developing country when preparing and applying the COOL measure, with a view to ensuring that no unnecessary obstacles were created to Mexico's cattle exports to the United States.

B. PRELIMINARY MATTERS

1. Measures at issue

(a) Introduction

7.6.
The parties agreed to the standard of review by the Panel pursuant to Article 7.1 of the DSU.26 Accordingly, our terms of reference are defined by the complainants' respective requests for the establishment of a panel under Article 6.2 of the DSU. Canada27 and Mexico28 identified in their respective panel requests a number of measures allegedly pertaining to the mandatory country of origin labelling requirements imposed by the United States.29
7.7.
Whilst not challenging the adequacy of the complainants' panel requests under Article 6.2, the United States questions the necessity for the Panel to examine expired measures. The parties also dispute how the Panel should treat the measures at issue in examining the complainants' claims, namely whether to treat them collectively as a single measure or separately as individual measures.
7.8.
In light of the issues raised by the parties as well as the obligation imposed on us to make an objective assessment of the parties' claims based on the properly identified measures, we will examine in this section the following three matters:

· Which measures fall properly within the scope of our terms of reference;

· Whether we should examine the measures that were no longer in effect at the time of the Panel's establishment; and

· How we should treat the measures at issue in examining the complainants' claims, namely, whether to treat them collectively as a single measure or separately as individual measures.

(b) Measures that fall within the scope of the Panel's terms of reference

7.9.
We have already described the measures at issue as identified by the complainants in their panel requests.30 In the course of the Panel proceedings, the complainants further elaborated on the measures that they challenge in this dispute.31 The following are the "provisions"32 that both Canada and Mexico claim constitute the "COOL measure":

· the Agricultural Marketing Act of 1946, as amended by the 2002 Farm Bill and 2008 Farm Bill;

· the Interim Final Rule33 (AMS34);

· the 2009 Final Rule (AMS); and

· the Vilsack letter.

7.10.
In addition to the above listed "provisions", Mexico refers to three other measures:

· the Interim Final Rule (FSIS)35;

· the 2009 Final Rule (FSIS)36; and

· any further implementing guidance, directives or policy announcements.37

7.11.
As the measures identified above consist of, inter alia, statutory and regulatory instruments pertaining to the mandatory country of origin labelling requirements, we will first briefly review the legislative and rulemaking process in the United States.
7.14.
Further, the regulatory provisions implementing the COOL statute were introduced by the 2009 Final Rule (AMS). Most of the provisions in the 2009 Final Rule (AMS) were carried forward from those in the Interim Final Rule (AMS).39 These regulatory provisions are codified in 7 C.F.R. Parts 60 and 65. Our reference in these reports to the implementing regulations in relation to the COOL requirements means the 2009 Final Rule (AMS).
7.15.
To determine the scope of our terms of reference, we address, in turn, the measures identified by both Canada and Mexico and the three additional measures referred to only by Mexico.40
7.16.
Both Canada and Mexico presented the COOL statute, the 2009 Final Rule (AMS), the Interim Final Rule (AMS) and the Vilsack letter as the measures at issue. The complainants properly identified these measures in their panel requests within the meaning of Article 6.2 of the DSU. In this connection, we note that the parties have not contested that all these measures, including the Vilsack letter, qualify as measures subject to WTO dispute settlement. The Appellate Body stated that, "in principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings. The acts or omissions that are so attributable are, in the usual case, the acts or omissions of the organs of the state, including those of the executive branch".41
7.17.
Accordingly, we conclude that the COOL statute, the 2009 Final Rule, the Interim Final Rule (AMS) and the Vilsack letter are properly within the Panel's terms of reference.
7.18.
Turning now to the additional measures challenged only by Mexico (i.e. the Interim Final Rule (FSIS), the 2009 Final Rule (FSIS), and any further implementing guidance, directives or policy announcements), we first find the Interim Final Rule (FSIS)42 to be properly within the scope of our terms of reference as it is specifically identified in Mexico's panel request.
7.19.
Mexico has also invoked the 2009 Final Rule (FSIS). Mexico, however, did not identify the 2009 Final Rule (FSIS) in its panel request43, although Mexico mentions it in its first written submission as well as in its response to a question from the Panel.44 Through the 2009 Final Rule (FSIS), the FSIS "[affirmed], without change, its interim final rule requiring a country of origin statement on the label of any meat or poultry product that is a covered commodity, as defined by the [AMS], and that is to be sold by a retailer …"45 Mexico submitted its request for the establishment of a panel on 9 October 2009. As of the date of Mexico's panel request, therefore, the 2009 Final Rule (FSIS) had already been enacted (i.e. 15 January 2009). The 2009 Final Rule (FSIS) is therefore not a measure that was enacted subsequent to the date of Mexico's request for the establishment of a panel, which may have made it fall within the scope of the Panel's terms of reference should it be found, inter alia, sufficiently connected to the measures at issue identified in the panel request. We conclude that the 2009 Final Rule (FSIS) falls outside the scope of the Panel's terms of reference.46
7.20.
In addition, Mexico identified "any further implementing guidance, directives or policy announcements" in its panel request.47
7.21.
The table below summarizes the measures at issue that fall within the scope of the Panel's terms of reference for the disputes brought by Canada and Mexico, respectively:

CanadaMexico
The COOL statute
The 2009 Final Rule (AMS)
The Vilsack letter
The Interim Final Rule (AMS)
The Interim Final Rule (FSIS)
Any further implementing guidance, Directives or policy announcements

7.22.
Among these measures, the Interim Final Rule (AMS) and the Interim Final Rule (FSIS) had already expired at the time of the Panel's establishment. As explained in more detail below, the fact that a measure ceased to exist or expired at the time of the establishment of a panel does not a priorimake that measure fall outside the scope of the panel's terms of reference, insofar as the measure is specifically identified within the meaning of Article 6.2 of the DSU. Nonetheless, the question remains whether it is even necessary for us to examine the expired measures in pursuing the objective of bringing prompt resolution to the current dispute. We consider this question in the following section.

(c) Measures that were no longer in force at the time of the establishment of the Panel – Interim Final Rule (AMS) and Interim Final Rule (FSIS)48

(i) Main arguments of the parties

7.23.
The United States argues that both the Interim Final Rule (AMS) and the Interim Final Rule (FSIS) have no effect in US law because they were superseded by the 2009 Final Rule (AMS) on 16 March 2009 and the 2009 Final Rule (FSIS) on 20 March 2009, respectively, and did not exist at the time of the establishment of the Panel.49
7.24.
The United States asserts that an examination of the Interim Final Rule (AMS), which did not exist at the time of the establishment of the Panel, would not help achieve a satisfactory settlement of the matter at issue.50 The Interim Final Rule (AMS) does not provide evidence of the administration of the 2009 Final Rule (AMS) because of the substantive difference between these two instruments. Further, the United States submits that the differences between the 2009 Final Rule (AMS) and the Interim Final Rule (AMS) are significant. Among these differences, the United States highlights the flexibility provided under the 2009 Final Rule (AMS)51 with regard to the use of B and C labels that did not exist under the Interim Final Rule (AMS): (i) a C label can be used on meat derived from a B animal in any circumstances; and (ii) B and C labels can be used when meat pertaining to category A, B, or C is commingled within a single production day in any combination.52 The United States, however, agrees that the 2009 Final Rule (AMS) does not allow the use of B labels on category A meat when it is not commingled.53
7.25.
Regarding the Interim Final Rule (FSIS), the United States argues that Mexico has failed to make a prima faciecase.54 The United States also reiterates that the Interim Final Rule (FSIS) is no longer in force.
7.26.
Canada agrees that the Interim Final Rule (AMS) expired on 15 March 2009.55 Canada underlines, however, that the contents of the Interim Final Rule (AMS) were carried forward, with minor modifications, into the 2009 Final Rule (AMS), which became effective on 16 March 2009. In Canada's view, both the Interim Final Rule (AMS) and the 2009 Final Rule (AMS) implement the COOL statute.56 According to Canada, as the overall effect of the Interim Final Rule (AMS) was the same as that of the 2009 Final Rule (AMS), the Panel must take into account the effects of the Interim Final Rule (AMS) although it has expired.57
7.27.
Mexico also agrees that both the Interim Final Rule (AMS) and the Interim Final Rule (FSIS) have been superseded by the 2009 Final Rule (AMS) and the 2009 Final Rule (FSIS) respectively and therefore have no legal effect under US law.58 However, for the purposes of its challenge, Mexico submits that the Interim Final Rules are evidence of the implementation, operation and administration of the COOL measure in a manner that unjustifiably discriminates against and restricts imports of Mexican cattle into the United States. Specifically, Mexico refers to the decrease of Mexican feeder cattle imports into the United States59 and the increase in the average price differential between Mexican and like US cattle after the issuance of the Interim Final Rule (AMS).60 Mexico also points to announcements that were made at the end of 2008 concerning the reduction in plants accepting Mexican cattle.61

(ii) Analysis by the Panel

Interim Final Rule (AMS)

7.28.
We recall that the Interim Final Rule (AMS) was specifically identified in the complainants' panel requests and thus falls within the scope of the Panel's terms of reference.62 All parties also agree that the Interim Final Rule (AMS) had expired at the time of the establishment of the Panel and currently has no legal effect under US law.63 The complainants are not requesting us to make a finding or recommendation with regard to the Interim Final Rule (AMS). The contention between the complainants and the United States concerning this instrument is, therefore, whether the Panel should even examine it for the purpose of this dispute.
7.29.
Specifically, the complainants take the position that the Panel should consider the Interim Final Rule (AMS) regardless of its legal status under US law. In support of its position, Canada points to the similarities between the Interim Final Rule (AMS) and the 2009 Final Rule (AMS) in substance as well as in their overall effect: both sets of regulations implement the COOL legislation. Mexico alleges that the effect it had on imported livestock during the implementation period (i.e. September 2008–March 2009) forms evidence of its claim in respect of the COOL requirements.64
7.30.
The fact that a measure has already expired or ceased to exist at the time of a panel's establishment does not make it fall a priorioutside the scope of a panel's terms of reference.65 Insofar as a measure is clearly identified in the complainant's panel request in accordance with Article 6.2 of the DSU, such a measure falls within the scope of the panel's terms of reference. It is another matter, however, whether the panel should examine a measure that, although procedurally properly before it, had already expired at the time of the panel's establishment. A panel is called upon to consider the nature of the dispute before it to determine whether an examination of such a measure, despite its expired status, would still be necessary to assist the resolution of the dispute. We also find relevant the Appellate Body's clarification in EC – Selected Customs Matters that "evidence in support of a claim challenging measures that are within a panel's terms of reference may pre-date or post-date the establishment of the panel"66 and that "a panel is not precluded from assessing a piece of evidence for the mere reason that it pre-dates or post-dates its establishment".67
7.31.
In these circumstances and given the legal and substantive connection between the Interim Final Rule (AMS) and the 2009 Final Rule (AMS)68, as explained in paragraph 7.61, we will take into consideration the Interim Final Rule (AMS) in examining the measures at issue that are currently in force.
7.32.
We note the United States' argument that the Interim Final Rule (AMS) does not provide evidence of the administration of the 2009 Final Rule (AMS) because of what the United States alleges to be significant substantive differences between these two instruments. In our view, the substantive differences between these two instruments do not necessarily affect the conclusion that the Interim Final Rule (AMS) can be examined in the context of the complainants' arguments in respect of the instruments that are currently in force. Particularly, the evolution of the COOL implementing regulations, shown through the rulemaking process, can assist us in understanding the overall operation of the COOL requirements. We will therefore take the Interim Final Rule (AMS) into consideration in our examination of the instruments that are currently in force, bearing in mind its substantive similarities to, as well as differences from, the 2009 Final Rule (AMS).

The Interim Final Rule (FSIS)

7.33.
Our considerations above with respect to the Interim Final Rule (AMS) apply equally to the Interim Final Rule (FSIS). Therefore, we will consider the Interim Final Rule (FSIS), to the extent appropriate, in our examination of the COOL statute, the 2009 Final Rule (AMS), and the Vilsack letter.

Conclusion

7.34.
In light of the above considerations, among the five categories of measures that are within the scope of the Panel's terms of reference, namely the COOL statute, the 2009 Final Rule (AMS), the Vilsack letter, the Interim Final Rule (AMS), and the Interim Final Rule (FSIS), we will examine and make findings and recommendations with respect to the first three, namely the COOL statute, the 2009 Final Rule (AMS) and the Vilsack letter. We will not make findings or recommendations on the Interim Final Rule (AMS) and the Interim Final Rule (FSIS). However, we will consider them, where relevant, in the context of our examination of the parties' claims with regard to the measures that are currently in force. In the factual circumstances of this dispute, we do not consider that conducting a separate examination of these interim measures, or making a finding or recommendation with respect to such measures, would contribute to resolving the current dispute between the parties.

(d) Treatment of the measures at issue – as a single measure or as several distinct measures

(i) Main arguments of the parties

7.35.
Canada and Mexico argue that the Panel must consider the instruments at issue that fall within the Panel's terms of reference as a single measure consisting of various components, rather than as a series of independent measures.69
7.36.
Canada submits that, while the COOL statute, the 2009 Final Rule (AMS), and the Vilsack letter are separate instruments in US law that does not prevent the Panel from considering the different components, which operate in concert to achieve a common policy objective of the United States, as one measure. It would be a mistake to consider each component instrument as a separate measure.
7.37.
Mexico also submits that the COOL statute, the 2009 Final Rule (AMS), the Vilsack letter, and the administrative guidance, directives and policy announcements are elements or components of a single measure (i.e. the COOL measure).70 Mexico argues that the COOL measure comprises various closely connected instruments and that each instrument is dependent upon others, starting with the 2002 Farm Bill. It is the collection of instruments as a whole that creates the measure being challenged by Mexico. Mexico asserts that the Vilsack letter, administrative guidance, directives and policy announcements build on the 2009 Final Rules which in turn build on the relevant provisions of the 2008 and 2002 Farm Bills.71
7.38.
Mexico argues that Japan – Film and Turkey – Rice are not applicable to the facts of this dispute.72 According to Mexico, this is because, unlike the various instruments at issue in this dispute, each of the measures at issue in Japan – Film and Turkey – Rice had an autonomous existence and independent effect.
7.39.
The United States does not agree with Canada and Mexico that the various measures described above together form one single COOL measure. The United States submits that the Panel should reject the complainants' attempt to characterize all of the instruments at issue as a single COOL measure given, among other factors, the substantive differences between the various instruments challenged in this dispute.73 Moreover, the United States argues that combining separate instruments in a single measure has important implications for Canada's and Mexico's legal claims. For example, neither party's arguments address how the COOL statute, apart from the 2009 Final Rule, is inconsistent with the United States' obligations. Therefore, the United States contends that "each document cited by Canada and Mexico should be assessed on its own merits in relation to each of Canada and Mexico's claims, consistent with the approach used by panels in previous disputes".74
7.40.
In particular, concerning the Vilsack letter, the United States underlines that it is substantively different from the COOL statute and 2009 Final Rule (AMS). Further, unlike the COOL statute and 2009 Final Rule (AMS), the Vilsack letter, containing voluntary suggestions, is not mandatory and has no legal status under US law.75 Any review of Canada's and Mexico's claims with respect to the Vilsack letter would therefore need to take into account these differences in its status under US law. The United States submits that this, together with the letter's lack of substantive content, argue in favour of a separate examination altogether.
7.41.
The United States also points out that neither Canada nor Mexico attempt to explain how "the US instruments have operated and continue to operate in conjunction with each other".76 The United States argues that the complainants ignore the Interim Final Rule (AMS), the Interim Final Rule (FSIS), and the 2009 Final Rule (FSIS) altogether, failing to substantively address these instruments in any of their submissions. The complainants also fail to explain how the COOL statute breaches United States' WTO obligations alone or in conjunction with the 2009 Final Rule (AMS). This is particularly in light of the fact that the implementing regulations could have been designed in a manner that, as Canada appears to concede, would be WTO-consistent. Thus, according to the United States, Canada's and Mexico's arguments essentially boil down to arguments against the 2009 Final Rule (AMS) and the Vilsack letter.
7.42.
The United States further submits that the complainants have failed to demonstrate that the Vilsack letter operates in conjunction with the 2009 Final Rule (AMS). In light of this and given that the Vilsack letter has no operative effect at all, the 2009 Final Rule (AMS) and the Vilsack letter should be examined separately.77 The United States further argues for a separate examination because the Vilsack letter does not fall within the scope of the WTO provisions under which Canada and Mexico challenge the so-called "COOL measure". The Vilsack letter is not a technical regulation within the meaning of the TBT Agreement and it is not a "law, regulation, or requirement" within the meaning of the GATT 1994. Therefore, according to the United States, it does not make sense to examine this instrument under provisions that do not apply to it along with an instrument that falls within the scope of these provisions.
7.43.
The United States argues that the facts in this dispute must be distinguished from the facts in EC – Asbestos and Japan – Apples. Unlike in EC – Asbestos, the so-called measures at issue in this dispute are not contained in a single instrument. Further, contrary to Japan – Apples, the facts and applicable obligations in this dispute are not identical for each instrument.

(ii) Analysis by the Panel

7.44.
We concluded above that the measures at issue in this dispute comprise the COOL statute, the 2009 Final Rule (AMS), and the Vilsack letter. The parties disagree whether the Panel should treat and examine these measures collectively as one single measure or individually as separate measures.
7.45.
Specifically, while not disputing that these measures are formally separate instruments, the complainants assert that they should be examined as a single measure because they operate together as components constituting one single COOL measure. The complainants do not argue, however, that these measures, if considered individually, are not capable of violating relevant provisions of the WTO Agreements. In our understanding, their argument is that it would be more appropriate for the Panel to approach the examination of the instruments at issue in their entirety as one measure. This is because the instruments operate in conjunction with each other to achieve certain policy objectives, and because they depend on each other as elements or components of a single measure.
7.46.
The United States, however, emphasizes that the instruments must be considered as distinct measures because of their substantive and legal differences.
7.47.
In considering whether to examine the instruments at issue as one single measure or several distinct measures, we recall the panel's statement in Japan – Apples regarding the relevance of the question of how to treat measures: the objective of findings by panels and the Appellate Body is to "assist the DSB in making sufficiently precise recommendations and rulings so as to allow for prompt compliance, in order to ensure effective resolution of the dispute".78
7.48.
Our decision here will also affect how they are examined – as one single measure or individual separate measures – in respect of the parties' substantive claims under the TBT Agreement and the GATT 1994.79 Therefore, a proper characterization of the measures at issue will enable us to make findings that can assist the DSB in making "sufficiently precise recommendations and rulings" to ensure effective resolution of the dispute.
7.49.
Bearing the above in mind, we start our analysis by observing that questions relating to the characterization of measures have arisen in previous disputes. In particular, the complainants refer to disputes such as Japan – Apples, EC – Asbestos, and US – Export Restraints, where several legal requirements or legal provisions were treated as a single measure. The United States, on the other hand, refers to the disputes on Japan – Film and Turkey – Rice where several legal requirements were examined as separate individual measures.
7.51.
In the current dispute, Canada and Mexico, as the complainants, argue that the instruments must be examined as one single measure, whereas the United States, as the respondent, argues that they must be examined separately. In contrast, the panel in Japan – Apples followed the approach suggested by Japan, the respondent, that the numerous phytosanitary requirements presented in that dispute should be examined as a single phytosanitary measure.83 The panel noted, among other factors, that the United States, the complainant in that dispute, did not consider it inappropriate for the panel to treat the requirements the United States identified as one single measure, whereas Japan objected to the panel's reviewing each of these requirements separately.84 The panel therefore considered that there was no legal, logical or factual obstacle to treating the requirements as one single phytosanitary measure. The parties' starkly contrasting views on this matter in the present dispute, on the other hand, require us to make a critical review of the nature of the measures at issue.
7.52.
We will now examine whether and, if so, to what extent the measures operate, legally or substantively, in conjunction with each other or depend on each other. In doing so, we will not be addressing in detail the substantive country of origin requirements contained in these measures. Such an analysis is provided in Section VII.C.1.
7.53.
First, the legal status of the COOL statute and the 2009 Final Rule (AMS) under US law is distinguishable from that of the Vilsack Letter: the former are the instruments of statutory and regulatory authorities respectively, whereas the latter does not have such legal status. The complainants do not contest this aspect of the Vilsack letter. The parties, however, disagree on whether the measures, in particular, the Vilsack letter, should be examined as part of a single measure together with the COOL statute and the 2009 Final Rule (AMS).
7.54.
As explained in detail in paragraphs 7.83-7.86, the COOL statute forms the framework and foundation for the 2009 Final Rule (AMS). Following the completion of the legislative process for the COOL statute, the 2009 Final Rule (AMS) was subsequently adopted to implement the country of origin labelling requirements embodied in the COOL statute according to the authority granted to the Secretary of Agriculture.85 Legally, therefore, the 2009 Final Rule (AMS) does not have autonomous status; it lays out the specificities pertaining to the country of origin labelling requirements that are necessary to implement the contents of the COOL statute. The COOL statute and the Final Rule are thus closely connected to each other in terms of legal status. This has not been contested by the United States.86
7.55.
On the other hand, the Vilsack letter87 does not have a formal legal link to either the COOL statute or the 2009 Final Rule (AMS). In stating this, we are aware of the disagreement between the parties regarding the existence of a factual link between the Vilsack letter, on the one hand, and the COOL statute and the 2009 Final Rule (AMS) on the other, particularly based on the impact of the letter on the industry.88 The specific nature of the letter is examined in Section VII.D.1(a) in the context of the parties' substantive claims. What is relevant for the question we are addressing here is that the Vilsack letter does not have the same statutory or regulatory status as the COOL statute or the 2009 Final Rule (AMS).
7.56.
We now turn to the existence of a substantive connection among the instruments at issue. At the core of the complainants' cases are the United States' mandatory country of origin labelling requirements for meat products as contained in the framework of the COOL statute and the 2009 Final Rule (AMS).89 As described in Section VII.C.1, the provisions in the COOL statute and the 2009 Final Rule (AMS) are closely linked in the operation of the specific COOL requirements. For example, the basic framework relating to the COOL requirements laid out in the statute, including the scope of the specific categories of labels applied to meat products, remains the same in the 2009 Final Rule (AMS). The 2009 Final Rule (AMS) then further expands the rules on how these different categories can be flexibly used by entities subject to the COOL requirements through the so-called commingling provisions.90
7.57.
The panel's statement in US – Section 301 Trade Act is helpful in this relation:

"[i]n evaluating the conformity of Sections 301-310 with the relevant WTO provisions we must, thus, be cognizant of this multi-layered character of the national law under consideration which includes statutory language as well as other institutional and administrative elements [including regulations and administrative procedures]. The elements of this type of national law are, as is the case here, often inseparable and should not be read independently from each other when evaluating the overall conformity of the law with WTO obligations."91

7.58.
The panel further elaborated:

"Accordingly, in examining the relevant provisions of Sections 301-310 we first look at the statutory language itself, severed from all other elements of the law. We then look at the other elements of Sections 301-310 which, in our view, constitute an integral part of the Measure in question and make our final evaluation based on all elements taken together."92

7.59.
We consider the Panel's approach in US – Section 301 Trade Act to be equally applicable to the situation here. In our view, the COOL statute and the 2009 Final Interim Rule (AMS) are "inseparable and should not be read independently from each other" when evaluating the overall conformity of country of origin requirements, as applicable to meat products, with the United States' WTO obligations.
7.60.
We note that the United States emphasizes the differences in substance between the COOL statute and the 2009 Final Rule (AMS). In the United States' view, such differences necessitate an examination of the instruments as separate measures. The differences as pointed out by the United States, however, are those arising from their differing legal structure: one (the COOL statute) is the statutory legal authority and the other (the 2009 Final Rule (AMS)) is the regulation adopted to implement the statute. We do not find any significant difference between these two instruments in substance that could render them separate and distinct measures. They both pertain to the country of origin labelling requirements. The 2009 Final Rule (AMS) elaborates on the specific manner in which subject entities must comply with the labelling rules embodied in the COOL statute.
7.61.
Given the above considerations, in particular the close legal and substantive link between the COOL statute and the 2009 Final Rule (AMS), we consider it appropriate to examine the relevant elements of both the COOL statute and the 2009 Final Rule (AMS) pertaining to the COOL requirements for meat products "as an integral part" of one single COOL measure. In reaching this conclusion, we find sufficient "legal, logical and factual" bases to treat the COOL statute and 2009 Final Rule (AMS) as the COOL measure.93 In this connection, we observe the Appellate Body's statement in US – Gambling that "the 'total prohibition' described by Antigua does not, in itself, constitute a 'measure'.... the 'total prohibition' is the collective effect of the operation of several state and federal laws of the United States. And it is the 'total prohibition' itself – as the effect of the underlying laws – that constitutes the alleged impairment of Antigua's benefits under the GATS".94 Similarly, we consider that the so-called "COOL measure", although used as the term for referring to the COOL statute and 2009 Final Rule (AMS) in these reports, does not constitute a measure in itself, but reflects the collective effect of the operation of the COOL statute and the 2009 Final Rule (AMS) in respect of the country of origin labelling requirements contained in those instruments.
7.62.
On the other hand, the Vilsack letter's substantive connection to the COOL statute and 2009 Final Rule (AMS) is not clear. The Vilsack letter starts with the statement that it pertains to the implementation of the Final Rule (AMS).95 It also contains matters relating to the mandatory country of origin labelling requirements, including concerns of the Secretary of Agriculture himself regarding the contents of the Final Rule at issue. The fact that the letter was issued by the Secretary of Agriculture – the top authority heading the USDA – gives the letter a certain level of significance. There are therefore aspects of the letter, including its reference to implementation and the authority who issued the letter, that connect it to the COOL statute and 2009 Final Rule (AMS). However, we are not presented with any solid evidence showing that the Vilsack letter is connected to the COOL statute or the 2009 Final Rule (AMS) such that they, in combination, form the substantive legal basis for the country of origin labelling requirements as set out in the COOL measure.
7.63.
In light of its distinct legal and substantive nature, we consider that the Vilsack letter should be considered as a separate measure distinguishable from the COOL statute and the 2009 Final Rule (AMS). Despite this conclusion, we will be referring to the Vilsack letter to the extent relevant and necessary for the examination of the COOL statute and the 2009 Final Rule (AMS), and vice versa. Further, we do not exclude at this stage of the analysis the possibility that when examined on its own, the Vilsack letter could fall within the scope of the TBT Agreement or the GATT 1994.

2. Products at issue

7.64.
The complainants submit that the products at issue in this case are imported Canadian cattle and hogs and imported Mexican cattle, which are used in the United States to produce beef and pork, commodities covered by the COOL measure.
7.65.
Specifically, Canada submits that its complaint concerns the application of the COOL measure to "beef and pork produced in the United States from cattle and hogs imported from Canada".96 In response to a question from the Panel, Canada elaborates that this dispute concerns Canadian cattle and hogs, whether for immediate slaughter or for feeding in the United States, and not imports of Canadian beef or pork into the United States. Canada further defines the imported products at issue as cattle and hogs falling into one of the following categories: (i) born in Canada and raised in the United States; (ii) born and raised in Canada; or (iii) born in the United States and raised in Canada. Domestic cattle and hogs, argues Canada, are those born, raised and slaughtered in the United States.97
7.66.
Mexico also specifies that its claims relate to exports of Mexican live feeder cattle (i.e. cattle born in Mexico, and then raised and slaughtered in the United States, including cattle partially fed in Mexico and subsequently raised and slaughtered in the United States).98
7.67.
The fact that the COOL measure formally applies to commodities such as beef and pork, and not livestock (products at issue in this dispute) per se, is addressed in the context of our examination of the complainants' claim under Article 2.1 of the TBT Agreement.99

3. Order of analysis

7.68.
As indicated above100, Canada's and Mexico's claims relate to specific provisions of the TBT Agreement and the GATT 1994. In particular, both complainants make national treatment claims under Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994. They have also brought claims under Article 2.2 of the TBT Agreement, as well as Articles X:3(a) and XXIII:1(b) of the GATT 1994. In addition, Mexico advances claims under Articles 2.4, 12.1 and 12.3(a) of the TBT Agreement.
7.69.
In their first written submissions, the complainants addressed their claims in a slightly different sequence. Canada developed arguments for its claims in the sequential order of the relevant provisions of the TBT Agreement, followed by the GATT 1994. On the other hand, Mexico started with its claim under Article III:4 of the GATT 1994, followed by its claims under the relevant provisions of the TBT Agreement in sequential order, and by the remaining relevant provisions of the GATT 1994 also in sequential order. Mexico, however, stated in its first oral statement that it recognizes that it is accepted practice to first address claims under the TBT Agreement and then under the GATT 1994.101
7.70.
In their second written submissions, both complainants dealt with their national treatment claims under Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994 jointly, followed by their claims under the relevant provisions of the TBT Agreement and then the GATT 1994 in sequential order.
7.71.
For the reasons explained below, we will first address their claims under the provisions of the TBT Agreement, followed by the claims under the GATT 1994.
7.72.
In the appeals procedure in US – Zeroing (EC) (Article 21.5 – EC) the European Communities referenced the finding by the panel in EC – Sardines102 as well as the Appellate Body report on US – Shrimp103, arguing that the panel made an error by failing to analyse the European Communities' claims in the order set out in the European Communities' submissions. The Appellate Body, however, rejected the idea of panels having an obligation to follow the sequence in which complainants address their claims:

"In our view, these decisions do not support the proposition that panels are 'bound' by the order of claims made by the complaining party. To the contrary, they confirm that, although panels may decide to follow the particular order of legal claims suggested by the complaining party, they may also follow a different order of analysis so as to apply the correct interpretation of the WTO law at issue. Indeed, we consider that, in fulfilling its duties under Article 11 of the DSU, a panel may depart from the sequential order suggested by the complaining party, in particular, when this is required by the correct interpretation or application of the legal provisions at issue."104

7.74.
We will start our analysis of the claims under the TBT Agreement with the question of whether the COOL measure and the Vilsack letter qualify as technical regulations.107

C. FACTUAL BACKGROUND

1. The COOL measure

(a) Recent legislative history of the COOL measure

(i) The COOL statute

(ii) Regulations implementing the COOL statute

(b) Country of origin labelling requirements for meat products

(i) Main requirements

The COOL statute

The 2009 Final Rule (AMS)

(ii) Entities subject to the country of origin labelling requirements

(iii) Exemptions from the scope of the COOL requirements

Products exempted

Entities exempted

(iv) Other obligations

The methods of notification

The audit verification system

The certification of origin

The enforcement of the COOL requirements

2. The Vilsack letter

3. The North American livestock and meat industries and trade

(a) Stages of livestock and meat production

(i) Cattle and beef

(ii) Hogs and pork196

(b) Integrated nature of the North American livestock trade

D. CLAIMS UNDER THE TBT AGREEMENT

7.143.
Both Canada and Mexico have brought claims under Articles 2.1 and 2.2 of the TBT Agreement. In addition, Mexico has advanced claims under Articles 2.4, 12.1 and 12.3(a) of this Agreement. As indicated above, we deal with these claims in sequential order.
7.144.
We begin our analysis of the above-listed claims with an assessment of whether the COOL measure and the Vilsack letter qualify as technical regulations within the meaning of the TBT Agreement. As the Appellate Body explained, "if the measure... is not a 'technical regulation', then it does not fall within the scope of the TBT Agreement".213 Thus, the question of technical regulations is a threshold issue for all of the complainants' claims under the TBT Agreement.
7.145.
Specifically, Articles 2.1, 2.2 and 2.4 of the TBT Agreement apply only to "technical regulations". In turn, Article 12.3 applies to "technical regulations, standards and conformity assessment procedures". Since Mexico has not contended that the COOL measure or the Vilsack letter would qualify as standards or conformity assessment procedures, the COOL measure and the Vilsack letter need to qualify as technical regulations for Mexico's Article 12.3 claim to potentially succeed in this dispute. Article 12.1 of the TBT Agreement does not specifically mention technical regulations; however, Mexico explains that it does not claim an independent breach of that provision by the United States, but rather a consequential violation through the breach of Article 12.3.214 Hence, a successful Mexican claim under Article 12.1 of the TBT Agreement in this dispute also presupposes that the COOL requirements qualify as technical regulations.

1. Technical regulation

7.146.
The term "technical regulation" is defined by Annex 1.1 to the TBT Agreement as follows:

"Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method." (explanatory note omitted)

7.147.
Based on this definition, the Appellate Body developed the following three-pronged test to establish whether a document qualifies as a technical regulation:

"[There are] three criteria that a document must meet to fall within the definition of 'technical regulation' in the TBT Agreement. First, the document must apply to an identifiable product or group of products. The identifiable product or group of products need not, however, be expressly identified in the document. Second, the document must lay down one or more characteristics of the product. These product characteristics may be intrinsic, or they may be related to the product. They may be prescribed or imposed in either a positive or a negative form. Third, compliance with the product characteristics must be mandatory.... [T]hese three criteria are derived from the wording of the definition in Annex 1.1."215 (emphasis original)

7.148.
We apply this test in turn to the two categories of instruments potentially at issue in the context of the TBT Agreement: (i) the instruments we found constitute the COOL measure (i.e. the COOL statute and the 2009 Final Rule (AMS)); and (ii) the Vilsack letter. We concluded above that because of its distinctive nature, the Vilsack letter should be examined separately from the COOL measure.216

(a) Whether compliance with the COOL measure and the Vilsack letter is mandatory

7.149.
W