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

Report of the Panel

CASES CITED IN THIS REPORT

Short TitleFull Case Title and Citation
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010, DSR 2010:V, p. 2175
Australia – Apples Panel Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/R, adopted 17 December 2010, as modified by Appellate Body Report WT/DS367/AB/R, DSR 2010:VI, p. 2371
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327
Australia – Salmon Panel Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by Appellate Body Report WT/DS18/AB/R, DSR 1998:VIII, p. 3407
Australia – Salmon (Article 21.5 – Canada) Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, p. 2031
Brazil – Aircraft Panel Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, DSR 1999:III, p. 1221
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 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, p. 1649
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1377
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, p. 2985
Canada – Continued Suspension Appellate Body Report, Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008, DSR 2008:XIV, p. 5373
Canada – Continued Suspension Panel Report, Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/R, adopted 14 November 2008, as modified by Appellate Body Report WT/DS321/AB/R, DSR 2008:XV, p. 5757
Canada – Dairy (Article 21.5 – New Zealand and US II) Panel Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/RW2, WT/DS113/RW2, adopted 17 January 2003, as modified by Appellate Body Report WT/DS103/AB/RW2, WT/DS113/AB/RW2, DSR 2003:I, p. 255
Canada – Pharmaceutical Patents (Article 21.3(c)) Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical Products – Arbitration under Article 21.3(c) of the DSU, WT/DS114/13, 18 August 2000, DSR 2002:I, p. 3
Canada – Renewable Energy / Canada – Feed-in Tariff Program Appellate Body Reports, Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013
Canada – Wheat Exports and Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004, DSR 2004:VI, p. 2739
China – Broiler Products Panel Report, China - Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States, WT/DS427/R and Add.1, adopted 25 September 2013
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/AB/R, adopted 16 November 2012, DSR 2012:XII, p. 6251
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/R and Add.1, adopted 16 November 2012, upheld by Appellate Body Report WT/DS414/AB/R, DSR 2012:XII, p. 6369
China – Publications and Audiovisual Products Panel Report, China –Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295
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, p. 7367
EC – Approval and Marketing of Biotech Products Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R / WT/DS292/R / WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847
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, p. 3243
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, p. 591
EC – Bananas III (Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Ecuador, WT/DS27/R/ECU, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:III, p. 1085
EC – Bananas III (Guatemala and Honduras) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Guatemala and Honduras, WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 695
EC – Bananas III (Mexico) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Mexico, WT/DS27/R/MEX, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 803
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by the United States, WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 943
EC – Chicken Cuts Appellate Body Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, p. 135
EC – Hormones (Canada) Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by Canada, WT/DS48/R/CAN, adopted 13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:II, p. 235
EC – Hormones (US) Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, WT/DS26/R/USA, adopted 13 February 1998, as modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 1998:III, p. 699
EC – Hormones (Article 21.3(c)) Award of the Arbitrator, EC Measures Concerning Meat and Meat Products (Hormones) – Arbitration under Article 21.3(c) of the DSU, WT/DS26/15, WT/DS48/13, 29 May 1998, DSR 1998:V, p. 1833
EC – IT Products Panel Reports, European Communities and its member States – Tariff Treatment of Certain Information Technology Products, WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933
EC – Sardines Appellate Body Report, European Communities – Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p. 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, p. 3451
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18 June 2014
EC – Seal Products Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R / WT/DS401/R / and Add.1, adopted 18 June 2014, as modified by Appellate Body Reports WT/DS400/AB/R / WT/DS401/AB/R
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, adopted 20 April 2004, DSR 2004:III, p. 925
EC and certain member States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7
Guatemala – Cement I Appellate Body Report, Guatemala – Anti‑Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, p. 3767
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti‑Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, DSR 2000:XI, p. 5295
India – Agricultural Products Panel Report, India – Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/R and Add.1, circulated to WTO Members 14 October 2014 [adoption/appeal pending]
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, p. 1827
India – Quantitative Restrictions Appellate Body Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, DSR 1999:IV, p. 1763
Indonesia – Autos (Article 21.3(c)) Award of the Arbitrator, Indonesia – Certain Measures Affecting the Automobile Industry – Arbitration under Article 21.3(c) of the DSU, WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12, 7 December 1998, DSR 1998:IX, p. 4029
Japan – Agricultural Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277
Japan – Agricultural Products II Panel Report, Japan – Measures Affecting Agricultural Products, WT/DS76/R, adopted 19 March 1999, as modified by Appellate Body Report WT/DS76/AB/R, DSR 1999:I, p. 315
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, p. 97
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report WT/DS245/AB/R, DSR 2003:IX, p. 4481
Japan – Apples (Article 21.5 – US) Panel Report, Japan – Measures Affecting the Importation of Apples – Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW, adopted 20 July 2005, DSR 2005:XVI, p. 7911
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, p. 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, p. 5
Mexico – Taxes on Soft Drinks Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, adopted 24 March 2006, DSR 2006:I, p. 3
Philippines – Distilled Spirits Appellate Body Reports, Philippines – Taxes on Distilled Spirits, WT/DS396/AB/R / WT/DS403/AB/R, adopted 20 January 2012, DSR 2012:VIII, p. 4163
Thailand – H‑Beams Appellate Body Report, Thailand – Anti‑Dumping Duties on Angles, Shapes and Sections of Iron or Non‑Alloy Steel and H‑Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701
Turkey – Textiles Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/R, adopted 19 November 1999, as modified by Appellate Body Report WT/DS34/AB/R, DSR 1999:VI, p. 2363
US – Anti-Dumping and Countervailing Duties (China) Appellate Body Report, United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, adopted 25 March 2011, DSR 2011:V, p. 2869
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain Corrosion‑Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, adopted 24 April 2012, as modified by Appellate Body Report WT/DS406/AB/R
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008, DSR 2008:X, p. 3507
US – Continued Suspension Panel Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/R, adopted 14 November 2008, as modified by Appellate Body Report WT/DS320/AB/R, DSR 2008:XI, p. 3891
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, p. 1291
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 2012, DSR 2012:V, p. 2449
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 2012:VI, p. 2745
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, p. 3
US – Cotton Yarn Appellate Body Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted 5 November 2001, DSR 2001:XII, p. 6027
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3
US – Hot‑Rolled Steel (Article 21.3(c)) Award of the Arbitrator, United States – Anti‑Dumping Measures on Certain Hot‑Rolled Steel Products from Japan – Arbitration under Article 21.3(c) of the DSU, WT/DS184/13, 19 February 2002, DSR 2002:IV, p. 1389
US – Large Civil Aircraft (2nd complaint) Appellate Body Report, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/AB/R, adopted 23 March 2012, DSR 2012:I, p. 7
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, p. 2755
US – Shrimp (Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481
US – Shrimp (Thailand) / US – Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from Thailand / United States – Customs Bond Directive for Merchandise Subject to Anti‑Dumping/Countervailing Duties, WT/DS343/AB/R / WT/DS345/AB/R, adopted 1 August 2008, DSR 2008:VII, p. 2385 / DSR 2008:VIII, p. 2773
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, p. 571
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, p. 323
US – Zeroing (EC) (Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS294/AB/RW and Corr.1, adopted 11 June 2009, DSR 2009:VII, p. 2911
US – Zeroing (Japan) (Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan, WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

ABBREVIATIONS

AbbreviationDescription
AHPA Animal Health Protection Act
ALOP Appropriate Level of Protection
APHIS Animal and Plant Health Inspection Service
CFR United States Code of Federal Regulations
Codex Codex Alimentarius Commission
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
Fed. Reg. United States Federal Register
FMD Foot-and-Mouth Disease
GATT 1994 General Agreement on Tariffs and Trade 1994
IPPC International Plant Protection Convention
OIE World Organization for Animal Health
SANCO European Commission's Directorate-General for Health and Consumers
SENASA Servicio Nacional de Salud Animal (National Animal Health Service)
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
SPS Committee Committee on Sanitary and Phytosanitary Measures
TBT Agreement Agreement on Technical Barriers to Trade
Terrestrial Code Terrestrial Animal Health Code
Terrestrial Manual Manual of Diagnostic Test and Vaccines for Terrestrial Animals
USC United States Code
USDA United States Department of Agriculture
VCLT Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679
WTO World Trade Organization

1 INTRODUCTION

1.1 COMPLAINT BY ARGENTINA

1.1.
On 30 August 2012, Argentina 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 XXIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) with respect to the measures and claims set out below.1
1.2.
Consultations were held on 18 and 19 October 2012.

1.2 PANEL ESTABLISHMENT AND COMPOSITION

1.3.
On 6 December 2012, Argentina requested the establishment of a panel pursuant to Article 6 of the DSU with standard terms of reference.2 At its meeting on 28 January 2013, the Dispute Settlement Body (DSB) established a panel pursuant to the request of Argentina in document WT/DS447/2, in accordance with Article 6 of the DSU.3
1.4.
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 Argentina in document WT/DS447/2 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those Agreements.4

1.5.
On 29 July 2013, pursuant to Article 8.7 of the DSU, Argentina requested the Director‑General to determine the composition of the panel. On 8 August 2013, the Director‑General accordingly composed the Panel as follows:

Chairperson: Mr Eirik Glenne

Members: Mr Jaime Coghi

Mr David Evans

1.6.
Australia, Brazil, China, the European Union, India, and the Republic of Korea notified their interest in participating in the Panel proceedings as third parties.

1.3 PANEL PROCEEDINGS

1.3.1 General

1.7.
After consultation with the parties, the Panel adopted its Working Procedures5 and timetable on 30 August 2013.
1.8.
The Panel held a first substantive meeting with the parties on 28 and 29 January 2014. A session with the third parties took place on 28 January 2014. The Panel held a meeting with the parties and the experts on 2 September 2014 and a second substantive meeting with the parties on 4 and 5 September 2014.
1.9.
On 4 November 2014, the Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 24 February 2015. The Panel issued its Final Report to the parties on 14 April 2015.
1.10.
In these panel proceedings, certain filings were not made in accordance with the Working Procedures and revised timetable adopted by the Panel.6 The Panel acknowledges that parties experience a variety of pressures in seeking to make timely filings. We also observe that no party claimed that its rights were affected in this case and we are not suggesting this occurred here. Nevertheless, we are mindful that failures to file submissions in accordance with the requirements of the Working Procedures could affect parties' rights, especially when submissions are to be filed simultaneously, and that delays can be detrimental to the orderly conduct of panel proceedings. Furthermore, abiding by the Working Procedures is important to guard against such occurrences. Therefore, on 23 May 2014 the Panel adopted modified Working Procedures incorporating changes to the requirements regarding simultaneous filing of submissions.7

1.3.2 Consultation of experts

1.11.
To facilitate the carrying out of its mandate, and in accordance with Article 11.2 of the SPS Agreement and Article 13 of the DSU, the Panel consulted with individual scientific experts and the World Organization for Animal Health (OIE).
1.12.
The initially-adopted Working Procedures and the Timetable of the proceedings were drafted with a view to leaving open the possibility for the Panel to consult scientific experts and/or international organizations. After the first substantive meeting, the Panel asked the parties to indicate their views on whether the Panel should seek scientific and technical advice from experts and/or international organizations. If they were of the view that the Panel should do so, the Panel asked for their views on the following matters: (i) from which international organizations the Panel should seek advice; (ii) from which international organizations the Panel should request suggestions of possible experts; (iii) in what areas of scientific and/or technical expertise the Panel should seek expert advice; (iv) how many experts the Panel should consult in each area of expertise; and (v) whether the Panel should consult experts individually or as part of an expert review group as contemplated in Article 13 and Appendix 4 of the DSU.8 The Panel also encouraged the parties to reach agreement on any specific scientific experts to be consulted by the Panel.
1.13.
In their responses to the Panel questions on these matters, both the United States and Argentina responded that they did not consider it necessary for the Panel to consult individual experts. As for consulting relevant international organizations – the OIE – the United States stated that it was unable to see how the OIE would be able to assist the Panel.9 Argentina indicated that it would not object to the Panel seeking advice from the OIE concerning its processes and decisions.10 The parties did not reach agreement on any specific experts to be consulted by the Panel. After considering the responses of the parties, the Panel decided to seek advice from the OIE with respect to the relevant provisions of the Terrestrial Animal Health Code (Terrestrial Code) as well as from individual experts with respect to, inter alia, risk assessment techniques, veterinary practices and surveillance.11 The Panel adopted the Working Procedures for the consultation of experts and amended its timetable to take into account the various steps in the process of consulting the OIE and the individual experts.

1.3.2.1 Expert selection

1.14.
Pursuant to the Working Procedures, on 6 March 2014 the Panel requested the OIE Secretariat to identify names of possible individual experts in the following fields: veterinary practice, surveillance, and risk assessment in the context of foot-and-mouth disease (FMD). At the same time, the Panel also informed the OIE that it might seek advice in writing from the OIE Secretariat with regard to the relevant provisions of the Terrestrial Code.
1.15.
On 7 March 2014, the OIE Secretariat responded and provided the WTO with eight names. The WTO Secretariat contacted each of the individuals recommended by the OIE to determine whether they were willing and available to assist the Panel. On 3 April 2014, the Panel forwarded to the parties for comments the names and curricula vitae of those experts who indicated that they were willing to assist the Panel. For reasons of transparency, the Panel informed the parties of all the names proposed by the OIE Secretariat.
1.16.
In accordance with paragraph 23 of the Working Procedures, the Panel invited the parties to comment on the available potential experts identified and to make known any compelling objections to any of the experts. The parties filed their comments on the proposed experts on 15 April 2014. Argentina considered the proposed experts to be well-suited for assisting the Panel, whereas the United States objected to all the proposed experts on the ground that each of them had been "closely involved in the OIE process for adopting Argentina's current OIE status".12
1.17.
On 29 April 2014, the Panel contacted the OIE for a second time expressing its wish to enlarge the pool of potential experts. In particular, the Panel asked the OIE to provide additional names of potential experts who had not directly participated in the evaluation of the sanitary situation in Argentina with respect to FMD. On the same day, the Panel invited the parties to identify any experts they considered would be suitable to assist in the proceedings.
1.18.
On 6 May 2014, the OIE Secretariat provided the names of another seven individuals. For reasons of transparency, the Panel informed the parties of the names of those seven additional experts. Argentina and the United States each provided the names of two experts who they viewed as appropriate to assist the Panel. The Panel contacted the 11 individuals to determine their availability and willingness to assist the Panel. The Panel forwarded to the parties for their comments in accordance with paragraph 23 of the Working Procedures the names and curricula vitae of the available experts. The parties commented on the proposed experts on 19 May 2014.
1.19.
On 9 May 2014, the Panel sent to the OIE questions concerning the operation and interpretation of the OIE's standards, guidelines and recommendations as embodied in the Terrestrial Code, as well as any other relevant OIE documents. The parties' written submissions, oral statements and responses to questions were also provided to the OIE. The OIE provided its responses to the Panel's questions on 23 June 2014. The parties' provided their comments on the OIE's responses on 17 July 2014.
1.20.
On 23 May 2014, the Panel informed the parties that it had selected the following experts to assist it: Dr Howard Batho, Dr Etienne Bonbon, Dr Andrew Cupit, and Dr Vitor Salvador Picão Gonçalves.13 Of the experts selected, Dr Cupit was proposed by the United States and Dr Gonçalves by Argentina. The Panel contacted the four selected experts and informed them that upon receipt of their signed disclosure forms confirming that they had no conflict of interest, the Panel would send them background material and a list of questions to which it wished to have written replies.
1.21.
The Panel received responses to its questions by 30 June from Dr Batho, Dr Bonbon, and Dr Cupit. On 3 July 2014, the Panel received a letter from Dr Gonçalves stating that he was no longer able to assist as an expert in the dispute.14 The parties' provided their comments on the individual experts' responses on 29 July 2014.
1.22.
On 4 August 2014, the OIE informed the Panel of the members of its delegation who would attend the 2 September expert hearing with the Panel and the parties. By letter dated 11 August 2014, the United States expressed concern with one member of the OIE's delegation, noting that it had objected to this person when proposed by the OIE as an individual expert. The United States' objections were based on the fact that the proposed expert was a private consultant based in Buenos Aires and that this could give rise to the "appearance that [the expert's] opinions could be influenced by the need to maintain relationships with potential sources of consulting work in South America".15 The United States also stated that as the individual was not an OIE employee, it was unclear how this person would be able to represent the OIE at the meeting.
1.23.
On 14 August 2014, the Panel contacted the OIE and informed it of the United States' concerns regarding the individual. While acknowledging that the individual had an in-depth knowledge of the Terrestrial Code, the OIE and its processes, the Panel indicated that it considered that the individual's work as a private consultant based in Argentina could give rise to doubts as to the individual's independence or impartiality if that individual were to participate in the 2 September meeting. The Panel, noting this could affect the parties' due process rights and its ability to rely on the OIE's responses at the meeting, accordingly asked the OIE to limit its delegation to the two other persons mentioned in the OIE's 4 August communication.
1.24.
On 19 August 2014, the OIE responded, clarifying that the member of its delegation had been continuously under contract with the OIE since 1 August 2012 for the performance of duties on behalf of the Organization. It also stated that as the majority of parties' comments on the responses submitted by the OIE to the Panel's questions were related to the OIE's interpretations, processes, procedures and transparency related to its standard setting, it had "an obligation to [its] 180 Member Countries who have adopted these procedures and norms that the OIE must be represented by the most qualified, knowledgeable and competent individuals at our disposal."16 In the OIE's view, the person best placed to properly represent the OIE and provide valuable assistance to the Panel was the individual they had chosen.
1.25.
On 26 August 2014, the Panel responded to the OIE's communication, emphasizing that it had an obligation to ensure that the parties' due process rights were respected at each stage and in every aspect of the proceedings. However, in light of the OIE's assurances that the individual was an OIE employee in the sense that the individual had been under contract with the OIE continuously since 1 August 2012 and in view of the comity owed to the OIE Secretariat, the Panel stated that it was prepared to reconsider the individual's attendance at the meeting. In this regard, the Panel asked the OIE to confirm a number of matters relating to any potential conflict of interest arising from the individual's private professional activities in Argentina, and that it confirm that the individual as an OIE employee was governed by the OIE's Rules of Conduct and would also be guided by the WTO's Rules of Conduct for the Settlement of Disputes. The Panel indicated that if it received the requisite assurances and the individual were to participate in the meeting, the parties would be given a period of time to question the individual about any professional affiliation with the OIE, any private consulting activities outside the OIE, and whether those activities would have a bearing on the individual's ability to be impartial and independent when answering questions on behalf of the OIE.
1.26.
On 28 August 2014, the Panel received the confirmation it was seeking with respect to the individual's private professional activities as well as the fact that although the individual was considered as a private consultant to the OIE, in the sense that the individual did not have the entitlements of an OIE staff member, the OIE Rules of Conduct and undertakings on confidentiality were explicitly stated in the individual's contract and were fully equivalent to those applicable to OIE staff.
1.27.
In the context of assisting the Panel in determining the proper allocation of time for statements at the meeting, the United States indicated that it did not wish to avail itself of the opportunity to pose questions at the meeting with the experts to the individual on the OIE's delegation on the matter of impartiality and independence.17

2 FACTUAL ASPECTS

2.1 THE RELEVANT DISEASE: FOOT-AND-MOUTH DISEASE (FMD)

2.1.
Foot-and-mouth disease (FMD) is a highly contagious viral disease that primarily affects cloven (divided)-hoofed livestock and wildlife. Although adult animals generally recover, the morbidity rate is very high in non-vaccinated populations, and significant pain and distress occur in some species. High mortality rates can be observed in non-vaccinated young animals. Complications or other pathological conditions resulting from FMD may include decreased milk yield, permanent hoof damage and chronic mastitis (inflammation of mammary glands and udders). Although FMD was once found worldwide, it has been eradicated from some regions including North America and most of Europe. Where it is endemic, this disease is a major constraint to the international livestock trade. Unless strict precautions are followed, FMD can be readily re-introduced into disease-free livestock. Once this occurs, the disease can spread rapidly through a region, particularly if detection is delayed.18
2.2.
The FMD virus survives in living tissue and in the breath, saliva, urine, and other excretions of infected animals. It can also survive in contaminated materials and the environment for several months under certain conditions. In cattle, the incubation period varies from two to fourteen days, depending on the dose of the virus and route of infection. FMD can spread when infected animals bring the virus into physical contact with susceptible animals (i.ecloven (divided) hoofed animals).19
2.3.
The virus has a variety of potential pathways for disease transmission including transmission through beef, offal, and hides derived from infected animals. Given the virulence and the potential rapid spread of the disease, and the significant direct and indirect costs associated with eradication of an outbreak, most countries that have eradicated the disease impose strict sanitary measures on imports of animal products. Countries that are not FMD‑free are usually limited in international markets to sales to other markets that are also not FMD‑free or, in some cases, to exports of specific types of meat products (for example, processed meat). These restrictions thus create a segmented market in which products from countries that are FMD‑free sell at a premium (10 to 50 per cent) over products that do not have this designation.20
2.4.
One of the tools countries or regions use to move towards eradication of the disease is to vaccinate cattle and other susceptible animals against FMD.

2.2 THE MEASURES AT ISSUE

2.5.
In the present dispute, Argentina challenges two sets of measures: (a) the United States' prohibition on importation of fresh (chilled or frozen) beef from the portion of the Argentine territory located north of the Rio Negro (Northern Argentina) and on the importation of animals, meat and other animal products from the Patagonia region as a consequence of the failure to recognize Patagonia as an FMD‑free region, contained in 9 CFR 94.1(b) and the 2001 Regulations, and in 9 CFR 94, respectively; and (b) the undue delay in the application of the procedures set forth in Title 9 of the United States' Code of Federal Regulations, Part 92.2 (9 CFR 92.2) to Argentina's requests for importation of fresh (chilled or frozen) beef from Northern Argentina and for the recognition of the Patagonia region as free from FMD.

2.2.1 Prohibition on importation of fresh (chilled or frozen) beef from Northern Argentina and animals, meat and other animal products from the Patagonia region

2.2.1.1 Title 9 of the Code of Federal Regulations, Part 94

2.6.
The first measure at issue is Title 9 of the United States' Code of Federal Regulations, Part 94 (9 CFR 94)21, which, in its application, effectively prohibits the importation of fresh (chilled or frozen) beef from Northern Argentina and animals, meat and other animal products22 from the Patagonia region. 9 CFR 94 reads, in relevant part:

94.1 Regions where rinderpest or foot-and-mouth disease exists; importations prohibited.

(a) APHIS considers rinderpest or foot-and-mouth disease to exist in all regions of the world except those declared free of one or both of these diseases by APHIS.

(1) A list of regions that APHIS has declared free of … foot and mouth disease are maintained on the APHIS Web site at: http://www.aphis.usda.gov/import_export/animals/animal_disease_status.shtml. …

(2) APHIS will add a region to the list of those it has declared free of rinderpest or foot-and-mouth disease, or both after it conducts an evaluation of the region in accordance with §92.2 and finds that the disease, or diseases, are not present. In the case of a region formerly on this list that is removed due to an outbreak, the region may be returned to the list in accordance with the procedures for reestablishment of a region's disease-free status in §92.4 of this subchapter. APHIS will remove a region from the list of those it has declared free of rinderpest or foot-and-mouth disease upon determining that the disease exists in the region based on reports APHIS receives of outbreaks of the disease from veterinary officials of the exporting country, from the World Organization for Animal Health (OIE), or from other sources the Administrator determines to be reliable.23

(b) The importation of any ruminant or swine or any fresh (chilled or frozen) meat of any ruminant or swine that originates in any region where rinderpest or foot-and-mouth disease exists, as designated in paragraph (a) of this section, or that enters a port in or otherwise transits a region in which rinderpest or foot-and-mouth disease exists, is prohibited …. (underlining added)

94.2 Fresh (chilled or frozen) products (other than meat), and milk and milk products of ruminants and swine.

(a)The importation of fresh (chilled or frozen) products (other than meat and milk and milk products) derived from ruminants or swine, originating in, shipped from, or transiting any region designated in §94.1(a) as a region infected with rinderpest or foot-and-mouth disease is prohibited, except as provided in §94.3 and parts 95 and 96 of this chapter.

(b)The importation of milk and milk products of ruminants and swine originating in, shipped from, or transiting any region designated in §94.1(a) as a region infected with rinderpest or foot-and-mouth disease is prohibited, except as provided in §94.16.

2.7.
As the language above indicates, the Animal and Plant Health Inspection Service (APHIS) maintains a list of regions that it has declared free of FMD. Imports into the United States of FMD‑susceptible animals and animal products from regions not included in the list are prohibited. Nevertheless, specific products originating in certain regions that do not appear on the list (i.eregions that APHIS has not declared to be free from FMD) may be eligible for import into the United States' territory provided that they comply with sanitary protocols agreed to with APHIS and set forth in other sections of 9 CFR 94. Argentine fresh (chilled or frozen) beef was imported pursuant to such a provision (former 9 CFR 94.21) between 1997 and 2001. In 2001, in response to FMD outbreaks in Argentina, 9 CFR 94.21 was repealed and Argentine products were made subject to the prohibitions under 9 CFR 94.1(b). At the time of the Panel's establishment, only Uruguay was listed under this category, and was permitted to export fresh (chilled or frozen) beef to the United States under the protocols contained in 9 CFR 94.22.24
2.8.
As discussed below, Argentina also challenges the Interim and Final Rules that repealed 9 CFR 94.21 and had the effect of making imports from Argentina subject to the general prohibition in 9 CFR 94.1(b).

2.2.1.2 APHIS' 2001 Interim and Final Rules amending 9 CFR 94

2.9.
Argentina experienced multiple FMD outbreaks between July 2000 and January 2002. In March 2001 Argentina suspended its exports of fresh (chilled or frozen) beef to the United States. Subsequently, APHIS issued: (a) an Interim Rule published in the Federal Register on 4 June 200125 and (b) a Final Rule published in the Federal Register on 11 December 2001.26 The Panel refers to these Rules collectively as the "2001 Regulations". The effect of the Interim Rule was to amend 9 CFR 94 to prohibit the importation of fresh (chilled or frozen) beef from Argentina by removing 9 CFR 94.21 (which, as noted above, had allowed such importation). This amendment was maintained without change in the Final Rule. Thus, as a result of the adoption of the 2001 Regulations, the prohibitions under 9 CFR 94.1(b), which had applied prior to 1997, once again became applicable to FMD‑susceptible animals and animal products from Argentina.27
2.10.
From 2001 until the date of the establishment of the Panel, APHIS had not issued any further regulations affecting the legal status of imports of fresh (chilled or frozen) beef from Argentina, or on animals, meat and other animal products from the Patagonia region.28 In other words, the version of the CFR in force on the date of establishment of the Panel reflects the amendments made as a result of the 2001 Regulations.

2.2.2 The United States' alleged undue delay in the application of the procedures set forth in 9 CFR 92.2 to Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as free from FMD

2.11.
APHIS' approval procedures, detailed in 9 CFR 92.2, entitled "Requests for recognition of a region or for approval to export animals or animal products…", set forth the terms under which a region or country can be recognized as FMD‑free or an authorization to import of FMD‑susceptible animal products can be obtained. The procedure in 9 CFR 92.2 is the only procedure that permits an applicant to obtain import approval for FMD purposes, whether for a region recognized by APHIS as FMD‑free or for a single commodity (i.ebeef) from a country or region.29 This procedure begins when a country submits an application to APHIS for recognition of its entire territory, or a region thereof, as an FMD‑free zone ("regionalization request"). 9 CFR 92.1 defines "region" as "[a]ny defined geographic land region identifiable by geological, political or surveyed boundaries". As such, a region for the purposes of APHIS' approval procedures may consist of: (a) a "national entity (country)"; (b) "[p]art of a national entity (zone, county, department, municipality, parish, Province, State, etc.)"; (c) "[p]arts of several national entities combined into an area"; or (d) a "group of national entities (countries) combined into a single area".30
2.12.
The application process requires the applicant country to provide information on the following eleven factors:

(1) The authority, organization, and infrastructure of the veterinary services organization in the region;

(2) Disease status—i.e., is the restricted disease agent known to exist in the region? If "yes," at what prevalence? If "no," when was the most recent diagnosis?

(3) The status of adjacent regions with respect to the agent;

(4) The extent of an active disease control program, if any, if the agent is known to exist in the region;

(5) The vaccination status of the region. When was the last vaccination? What is the extent of vaccination if it is currently used, and what vaccine is being used?

(6) The degree to which the region is separated from regions of higher risk through physical or other barriers;

(7) The extent to which movement of animals and animal products is controlled from regions of higher risk, and the level of biosecurity regarding such movements;

(8) Livestock demographics and marketing practices in the region;

(9) The type and extent of disease surveillance in the region—e.g., is it passive and/or active; what is the quantity and quality of sampling and testing?

(10) Diagnostic laboratory capabilities;

(11) Policies and infrastructure for animal disease control in the region—i.e., emergency response capacity.31

2.13.
After an application is filed, APHIS evaluates the likelihood of entry, establishment, or spread of the disease. As part of the evaluation, APHIS requests the applicant country to provide detailed scientific information as necessary, and typically conducts one or more visits to the region covered by the regionalization request. Upon completion of its evaluation, APHIS communicates the evaluation and its results to the applicant country and other potentially affected and interested parties by publishing a proposed regulatory document in the Federal Register.32 All potentially affected and interested parties are invited to respond to and submit comments on the proposed regulatory document. After the expiration of the public comment period, APHIS collects all the comments, reviews them, and prepares responses. It reviews the proposed regulatory document in light of these comments and revises it as appropriate.
2.14.
As the last step of the process, APHIS issues the final regulatory decision on regionalization in the United States' Federal Register. The final decision sets forth the conditions under which imports are authorized in order to meet the appropriate level of protection (ALOP) of the United States.33 The country or region thereof that is recognized as an FMD‑free zone is then added to the list of regions that are considered free of FMD under 9 CFR 94.1(a)(1) and thus authorized to import. Certain regions listed in 94.1(a)(1) are nevertheless subject to additional protocols set forth in 94.11 if they either (1) supplement their national meat supply through the importation of fresh, chilled or frozen meat of ruminants or swine from countries/regions that are not designated as free of FMD; or (2) they have a common land border with countries/regions that are not designated as free of FMD; or (3) they import ruminants or swine from countries/regions that are not designated as free of FMD.34
2.15.
APHIS' approval procedures also contemplate that regions not included in APHIS' list are nevertheless entitled to apply for the right to import a particular product into the United States.35 Until 27 August 2012, the application, evaluation, and approval process for the right to import a particular product into the United States was, mutatis mutandis, the same as that set forth for regionalization requests and described in paragraphs 2.11‑2.14 above. However, APHIS amended its regulations on 27 August 2012 so as to limit the scope of its application, evaluation, and approval process to regionalization requests, and removed references to requests for approval of imports of a particular type of animal or animal product into the United States.36 In its first written submission, the United States asserted that the changes to the regulations do not prevent product-specific requests and that "APHIS continues to work on and accept applications to permit product-specific requests".37
2.16.
Argentina does not challenge APHIS' approval procedures under 9 CFR 92.2 as such.38 Rather, Argentina takes issue with the alleged undue delay in the application of APHIS' approval procedures to its requests for authorization of imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free. Argentina filed its request to import fresh (chilled or frozen) beef in November 2002.39 It filed its request for the recognition of the portion of Patagonia located south of the 42nd parallel (Patagonia South) as FMD‑free within the meaning of 9 CFR 94.1(a) in August 2003.40 In December 2008, Argentina extended its request for the recognition of Patagonia as FMD‑free to the portion of Patagonia located between the 42nd parallel and the Rio Negro (Patagonia North B).41 As of the date of the establishment of the Panel (28 January 2013), APHIS had not issued a Proposed or Final Rule or Notice of Determination in either approval process.
2.17.
A chronology of the events relating to the sanitary situation for FMD in Argentina as well as the evaluation of that situation by the OIE and APHIS is attached as Appendix 1 to this Report.42

2.2.2.1 Section 737 of the 2009 Omnibus Appropriations Act

2.18.
As part of its arguments concerning alleged undue delays in APHIS' approval processes described in paragraphs 2.11-2.16 above, Argentina also takes issue with Section 737 of the 2009 Omnibus Appropriations Act adopted by the United States' Congress on 10 March 2009.43 Section 737 reads, in relevant part:

None of the funds made available by this Act may be used to pay the salaries and expenses of any individual to conduct any activities that would allow the importation into the United States of any ruminant or swine, or any fresh (including chilled or frozen) meat or product of any ruminant or swine, that is born, raised, or slaughtered in Argentina: Provided, That this section shall not prevent the Secretary from conducting all necessary activities to review this proposal and issue a report on the findings to the Committees on Appropriations of the House and Senate: Provided further, That this section shall only have effect until the Secretary of Agriculture has reviewed the domestic animal health aspects of the pending proposal to allow the importation of such products into the United States and has issued a report to the Committees on the findings of such review.

2.3 PRODUCTS AT ISSUE

2.19.
9 CFR 94 applies to ruminants44 and "swine"45 and products derived from ruminants and swine such as: (i) fresh (chilled or frozen) meat; (ii) milk; (iii) milk products; and (iv) fresh (chilled or frozen) products other than meat, milk, and milk products. The product of relevance to Argentina's claims for Northern Argentina is fresh (chilled or frozen) beef. The products relevant to Argentina's claims for Patagonia are fresh (chilled or frozen) beef, other products of ruminants and swine, as well as the live animals themselves.

2.4 RELEVANT INTERNATIONAL STANDARDS, GUIDELINES, AND RECOMMENDATIONS

2.4.1 The OIE and its mandate

2.20.
The OIE is an intergovernmental organization that was created through an international agreement signed on 25 January 1924, as a response to the need to fight animal diseases at a global level. In May 2003, the OIE changed its name from Office International des Epizooties to World Organisation for Animal Health, but kept its historical acronym.46 The OIE is tasked with improving animal health worldwide.47 One of its stated objectives is "sanitary safety" for "international trade in animals and animal products".48 The OIE's activities in this field focus on rules that OIE members "can use to protect themselves from the introduction of diseases and pathogens, without setting up unjustified sanitary barriers".49
2.21.
As of October 2014, the OIE had 180 members50 and their national delegates constitute a World Assembly of Delegates.51 Both Argentina and the United States are members, as are the third parties to this dispute. In addition to its headquarters in Paris, the OIE has regional and sub-regional offices on every continent.52

2.4.2 The Terrestrial Code

2.22.
The SPS Agreementdefines the international standards, guidelines, or recommendations of the OIE as the relevant ones for animal health and zoonoses.53 The international standards of the OIE are published in the form of the Terrestrial Code, the Aquatic Animal Health Code (the Aquatic Code), the Manual of Diagnostic Test and Vaccines for Terrestrial Animals (the Terrestrial Manual), and the Manual of Diagnostic Tests for Aquatic Animals (the Aquatic Manual). All new standards and revisions are adopted by the World Assembly, generally on a unanimous basis following consideration of proposals made by the relevant Specialist Commissions.54. Each OIE member casts one vote. The standard setting process of the OIE is driven by its Members and enables the continuous improvement of standards as new scientific information comes to light.55
2.23.
This dispute covers trade in FMD‑susceptible animals (i.eruminants and swine) and products thereof. Therefore, the relevant code is the Terrestrial Code, whichcontains standards, guidelines and recommendations designed to prevent the introduction of infectious agents and diseases pathogenic to terrestrial animals and humans into the importing country during trade in terrestrial animals, animal genetic material and animal products. It does this through recommendations on sanitary measures to be used by OIE members in establishing the health regulations applying to the import of animals, animal genetic material and animal products. Such recommendations are the result of the continuous work since 1960 of one of the OIE's Specialist Commissions, namely the OIE Terrestrial Animal Health Standards Commission. The Commission draws upon the expertise of internationally renowned specialists to prepare draft texts for new articles of the Terrestrial Code or to revise existing articles in the light of advances in veterinary science.56

2.4.2.1 Objectives and structure of the Terrestrial Code

2.25.
The aim of the Terrestrial Code is to set international "standards for the improvement of terrestrial animal health and welfare and veterinary public health worldwide, including through standards for safe international trade in terrestrial animals (mammals, birds and bees) and their products".58 According to the Terrestrial Code, these standards consist of health measures based on the latest available scientific evidence and "should be used" by the veterinary authorities of importing and exporting countries to, inter alia, prevent the transfer of agents pathogenic to terrestrial animals and/or humans via international trade in terrestrial animals and terrestrial animal products, while avoiding unjustified sanitary barriers to trade.59 In sum, the Terrestrial Code aspires to assure sanitary safety of international trade in terrestrial animals while avoiding unjustified sanitary barriers to trade.60
2.26.
The Terrestrial Code is divided into two volumes. Volume I, entitled "General provisions", contains horizontal standards that apply to a wide range of species, production sectors and diseases, organized into seven Sections. For instance, this volume includes rules on animal disease diagnosis, surveillance and notification (Section 1), risk analysis (Section 2), quality of veterinary services (Section 3), disease prevention and control (Section 4), trade measures, import/export procedures and veterinary certification (Section 5). The general principles and specific procedures for recognition of official disease status are set out in Chapter 1.6 of the Terrestrial Code, with consolidation and updating of the procedures as set out in Resolutions XXII and XXIII, adopted at the seventy-sixth World Assembly in May 2008.61
2.27.
Volume II, in turn, contains standards, guidelines and recommendations applicable to specific diseases, including the recommendations regarding disease surveillance, risk assessment, and zoning and compartmentalization. Specifically, Chapter 8.5 sets out international standards, guidelines and recommendations specific to FMD. It aims to provide for safe trade in FMD‑susceptible animals and products thereof by recommending particular mitigating measures for both exporting and importing Members to be adopted depending on the FMD‑status designation of the exporting country or zone.
2.28.
In the OIE context, the term "sanitary measure" means "a measure, such as those described in the various chapters of the Terrestrial Code, destined to protect animal or human health or life within the territory of the OIE Member from risks arising from the entry, establishment and/or spread of a hazard".62 According to the Terrestrial Code, "risk" refers to the likelihood of the occurrence and the likely magnitude of the biological and economic consequences of an adverse event or effect to animal or human health. "Risk analysis" means the process consisting of hazard identification, risk assessment, risk management and risk communication, while "risk assessment" means the evaluation of the likelihood and the biological and economic consequences of entry, establishment and spread of a hazard within a territory of an importing country.63

2.4.2.2 Official recognition of disease status

2.29.
In light of the standards set forth in the Terrestrial Code, since 1994 the OIE has been recognizing the status of specific countries or zones with respect to a number of animal diseases. As of 2014, the OIE provides official recognitions for six diseases: African horse sickness (AHS), bovine spongiform encephalopathy (BSE), contagious bovine pleuropneumonia (CBPP), classical swine fever (CSF), peste des petits ruminants (PPR), and FMD.64 The official recognition of the disease status of a country or zone is an "affirmation" that such country or zones "meets the standards set in the Terrestrial Code" with regard to the control of the disease concerned.65
2.30.
The procedures the OIE uses to issue official recognitions are embodied in Chapter 1.6 of the Terrestrial Code. With respect to FMD specifically, detailed procedures are contained in Article 1.6.4. As a first step in the FMD‑status recognition process, OIE members must apply for recognition for a country (i.ethe entire territory of a Member) or a zone as FMD‑free where vaccination is or is not practised. To do so, they must provide the OIE with a "dossier" containing the information specified in Article 1.6.4.66 Such information comprises, inter alia, detailed evidence concerning the following factors: geography of the country or zone concerned; livestock industry; organization of the veterinary system; FMD history and eradication strategies; vaccination; animal identification and movement controls; diagnostic capacity; FMD surveillance; prevention strategies, including at the international level; control measures and contingency planning; and compliance with the Terrestrial Code.67 The OIE does not initiate the recognition procedure on its own initiative. Therefore, Members which do not apply or fail to meet the requirements for recognition do not have an official FMD‑status determination.68
2.31.
The applicant Member's dossier is evaluated by an ad hoc expert Group, usually composed of 2 or 3 individuals covering a broad range of relevant expertise.69 The Group conducts an assessment of whether the Member complies with the requirements set forth in Chapter 8.5 of the Terrestrial Code, and provides the OIE Scientific Commission70 with a document summarising their findings and recommendations.71 In turn, the Scientific Commission reviews the ad hoc expert Group's document and issues a report listing the countries or zones that are proposed for official recognition of a particular disease status for consideration of OIE members at the annual World Assembly.72 A 60-day "comment period" is provided and the comments expressed by OIE members are considered by the Scientific Commission before finalizing the decision proposal.73 At any stage of the process, the Scientific Commission may ask the Director General to deploy a mission to the applicant Member.74 As the last step, the OIE World Assembly adopts a resolution which officially recognizes the applicant country or zone as FMD‑free where vaccination is or is not practised.75 Members who have an official recognition must submit an updated dossier annually and the decision on official recognition is re-evaluated.76
2.32.
When a country or zone previously recognized as FMD‑free where vaccination is or is not practised experiences an FMD outbreak, its official disease status is suspended immediately.77 In such a case, the Member concerned may apply for recovery of the status pursuant to the procedures set forth in Article 8.5.9 of the Terrestrial Code. The organ in charge of the recovery procedure is the Scientific Commission, which "has the mandate, on request, to reinstate official status" without "prior consultation with the World Assembly".78 In order to reach its determination on a recovery request, the Commission may call for a new evaluation by the ad hoc expert Group or undertake the assessment itself.79

2.4.3 Relevant standards, guidelines or recommendations invoked by the parties

2.33.
Argentina claims that the United States has acted inconsistently with Article 3.1 of the SPS Agreement because it has not based its measures on the following provisions of the OIE Terrestrial Code which it argues constitute relevant international standards, guidelines or recommendations: (a) Chapter 8.5 (in particular Articles 8.5.4, 8.5.5, 8.5.22, 8.5.23, and 8.5.25); (b) Chapters 4.1-4.4; and (c) Sections 1-5.80
2.34.
According to the United States, the relevant international standards, guidelines or recommendations in this dispute are contained in Article 1.6.5, Chapter 2.1, and Chapter 8.5 of the Terrestrial Code.81

2.5 THE PARTIES' DOMESTIC FMD SITUATIONS

2.5.1 Argentina

2.35.
To provide context for the various different regions of Argentina and the disease status thereof, we provide a map of Argentina and the neighbouring territories below.82

[SEE IMAGE IN SOURCE DOCUMENT]

2.5.1.1 Northern Argentina

2.36.
The OIE recognized the entire Argentine territory as FMD‑free where vaccination is not practised in 2000.83 This FMD‑status determination was suspended in May 200184 in light of multiple FMD outbreaks in the Argentine territory between July 2000 and April 2001. In July 2003, the OIE recognized the Argentine territory located north of the Rio Negro (Northern Argentina) as FMD‑free where vaccination is practised.85 In August 2003, the recognition was suspended as a result of an FMD outbreak in the Province of Salta.86 It was reinstated in 200587 and suspended again in 2006 as a result of one further FMD outbreak in the Province of Corrientes.88 Northern Argentina's disease status of FMD‑free where vaccination is practised was reinstated in 200789 and has been renewed annually thereafter. Finally, in 2011 the OIE recognized the border protection zone established along the Argentine border with Bolivia, Paraguay and Brazil as FMD‑free where vaccination is practised.90

2.5.1.2 Patagonia

2.37.
Patagonia South has not had an FMD outbreak since 1976, whereas Patagonia North B had its last outbreak in 1994.91 In 2002, the OIE recognized Patagonia South as FMD‑free where vaccination is not practised.92 In 2007, the same recognition was extended to Patagonia North B.93

2.5.2 United States

2.38.
The United States had its last FMD outbreak in 1929.94 The United States has been FMD‑free for over eighty years and does not vaccinate its cattle or other FMD‑susceptible species.95 The United States is designated by the OIE as an area that is FMD‑free where vaccination is not practised.

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

3.1.
Argentina argues that the measures at issue are SPS measures covered by Article 1.1 and Annex A(1)(a).
3.2.
Argentina requests the Panel to find that the application of the prohibitions contained in 9 CFR 94.1(b) and the 2001 Regulations to importation of fresh (chilled or frozen) beef from Argentina:

· is inconsistent with the United States' obligations under Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, and 10.1 of the SPS Agreement;

· is inconsistent with the United States' obligations under Articles I:1 and XI:1 of the GATT 1994.

3.3.
Argentina requests that, to the extent the Panel were to find that the application of the prohibitions contained in 9 CFR 94.1(b) to importation of Argentine fresh (chilled or frozen) beef is inconsistent with any of the provisions of the covered Agreements, it also find that the 2001 Regulations are, by implication, inconsistent with the same provisions because they bear an "instrumental relationship" with the prohibitions under 9 CFR 94.1(b).96
3.4.
Argentina further requests that the Panel find that the application of the prohibitions contained in 9 CFR 94 to importation of animals, meat and other animal products from the Patagonia region:

· is inconsistent with the United States' obligations under Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, and 10.1 of the SPS Agreement;

· is inconsistent with the United States' obligations under Articles I:1 and XI:1 of the GATT 1994.

3.5.
Argentina requests the Panel to find that the United States' application of the approval procedure detailed in 9 CFR 92.2 to imports of fresh (chilled or frozen) beef from Argentina was not undertaken and completed without undue delay and is thus inconsistent with the United States' obligations under Article 8 in conjunction with Annex C(1)(a) of the SPS Agreement. Argentina further requests the Panel to find that such an approval process is inconsistent with Article 8 in conjunction with Annex C(1)(b) of the SPS Agreement because the United States: (i) neither published the standard processing period of each procedure nor did it communicate the anticipated processing to Argentina upon request97; (ii) did not transmit as soon as possible the results of the procedures in a precise and complete manner to Argentina so that corrective action may be taken if necessary98; and (iii) did not inform Argentina, upon request, of the stage of the procedures, explaining any delay.99
3.6.
Argentina requests the Panel to find that the United States' application of the approval procedure detailed in 9 CFR 92.2 to the request to recognize the Patagonia region as FMD‑free was not undertaken and completed without undue delay and is thus inconsistent with the United States' obligations under Article 8 in conjunction with Annex C(1)(a) of the SPS Agreement. Argentina further requests the Panel to find that such an approval process is inconsistent with Article 8 in conjunction with Annex C(1)(b) of the SPS Agreement because United States: (i) neither published the standard processing period of each procedure nor did it communicate the anticipated processing to Argentina upon request100; (ii) did not transmit as soon as possible the results of the procedures in a precise and complete manner to Argentina so that corrective action may be taken if necessary101; and (iii) did not inform Argentina, upon request, of the stage of the procedures, explaining any delay.102
3.7.
Finally, Argentina requests the Panel to find that Section 737 of the 2009 Omnibus Appropriations Act contributed to the United States' undue delay in approving Argentina's requests by "effectively block[ing] any progress on [its] requests before APHIS"103 and "impeding the completion of the approval process on Argentina's two pending applications"104, inconsistently with Article 8 and Annex C(1)(a) of the SPS Agreement.105
3.8.
In light of the above, Argentina requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that the United States bring its measures into conformity with its WTO obligations.
3.9.
The United States requests that the Panel reject Argentina' claims in this dispute in their entirety.

4 ARGUMENTS OF THE PARTIES

4.1.
The arguments of the parties are reflected in their integrated executive summaries, provided to the Panel in accordance with paragraph 18 of the Working Procedures adopted by the Panel (see Annexes B-1, B-2, B-3 and B-4).

5 ARGUMENTS OF THE THIRD PARTIES

5.1.
The arguments of Australia, Brazil, China, and the European Union are reflected in their integrated executive summaries, provided in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see Annexes C-1, C-2, C-3 and C-4). Neither India nor the Republic of Korea submitted written or oral arguments to the Panel.

6 INTERIM REVIEW

6.1.
On 24 February 2015, the Panel issued its Interim Report to the parties. On 10 March 2015, Argentina and the United States each submitted written requests for the review of the Interim Report. Neither party requested an interim review meeting. On 24 March 2015, both parties submitted comments on the other's requests for review.
6.2.
In accordance with Article 15.3 of the DSU, this section of the Panel Report sets out the Panel's response to the parties' requests for review of precise aspects of the Report made at the interim review stage. The Panel modified aspects of its Report in the light of the parties' comments where it considered it appropriate, as explained below. In addition, the Panel also corrected a number of clerical and other non-substantive errors throughout the Report, including those identified by the parties.106

6.1 WHETHER APHIS' REVIEW PROCESSES OF ARGENTINA'S REQUESTS WERE UNDERTAKEN AND COMPLETED WITHOUT UNDUE DELAY

6.3.
Argentina requests that the Panel clarify its reasoning in paragraph 7,117 that some indicators may be used to gauge the reasonableness of the timing of APHIS' review processes. In Argentina's view, the Panel should expressly refer to the absence of a point of reference in APHIS' regulations, thus implying that APHIS acted improperly by not publishing a standard practice. Argentina suggests adding a footnote to APHIS' 1997 policy document, submitted as Exhibit ARG-129, which provides "an overview of the actual processing times experienced by APHIS" in applying Section 92.2 to other Members.107 The United States opposes Argentina's request because the timeframes of APHIS' review processes for countries or regions other than Northern Argentina and Patagonia, contained in Exhibit ARG-129, are "inapposite" to the question whether APHIS' processes incurred undue delays in this dispute.108
6.4.
The Panel does not agree with Argentina that the discussion about the absence of a point of reference should be altered to read "absence of a point of reference in APHIS' regulations." A determination of whether a procedure incurs an undue delay under Annex C(1)(a) is not necessarily limited to an assessment of the procedures adopted by the importing Member. This is why the Panel also referred to the guidelines of the OIE in the subsequent sentence. Furthermore, Annex C(1)(b) contemplates that a Member will not publish a standard processing period, but may alternatively communicate the anticipated processing period to an applicant upon request. Therefore, we do not see the relevance of whether APHIS has a standard processing period in its own regulations. Moreover, the Panel notes that this is a general introductory paragraph to the discussion. When the Panel discusses the indicators in more detail in paragraphs 7,134 and 7,154, we refer specifically to the relevant APHIS policies and processing times experienced by other applicants. We therefore see no need to make the change Argentina requests.
6.5.
Argentina also requests that the Panel revise its characterization of Section 737 of the 2009Omnibus Appropriations Act in paragraphs 7,139-7.140; to consider the measure's "dilatory effect" on APHIS' review processes of Argentina's requests, and to complete the analysis on Argentina's claims that Section 737 caused undue delay.109 In particular, Argentina argues that the Secretary of Agriculture's evaluation and report to Congress referred to in Section 737 constitute "supplementary requirements" outside APHIS' review processes under 9 CFR 92.2, which lack a scientific basis and are applied solely on imports from Argentina.110 Further, Argentina contends, the United States' representative at the SPS Committee repeatedly referred to the requirements in Section 737 to respond to Argentina's concerns concerning the timing of APHIS' review processes.111 In light of the above, Argentina maintains that Section 737 did contribute to the alleged undue delays in APHIS' review processes.
6.6.
The United States requests the Panel to reject Argentina's request, as the Panel's reasoning in paragraphs 7,139-7.140 accurately reflects the fact that Section 737 did not prevent APHIS from continuing with its risk assessments and, in any event, ceased to have legal force after 30 September 2009.112
6.7.
The Panel notes that the implication of Argentina's argument is that because Section 737 is a "supplementary" requirement to APHIS' processes, it somehow ipso facto creates a "dilatory" effect on the review of Argentina's requests in a manner inconsistent with Article 8 and Annex C(1)(a). We have found that Section 737 is an SPS measure in its own right. We concur with the panel in US – Poultry (China) that such a measure is "Congress' way of exerting control over the activities of an Executive Branch agency responsible for implementing substantive laws and regulations on SPS matters."113 We accept that in some cases the institution of such legislative review of administrative decisions could result in an undue delay. However, we do not consider that an undue delay occurs automatically whenever a legislature wishes to exert oversight authority over the executive.
6.8.
Although the United States' representative's statements regarding the need to comply with an expired law might have been expressed more clearly, the fact remains that the law ceased to have any legal effect at the end of the 2009 fiscal year. Furthermore, as the Panel concluded, on the face of the law itself the Department of Agriculture was not prevented from completing the review process of Argentina's requests – it simply had to provide a report to Congress on the requisite factors. Based on the above, the Panel declines to make the changes requested by Argentina.
6.9.
Further, Argentina asks the Panel to modify its description of SENASA Resolution 1282/2008 in paragraph 7,168 by stating that it "did not relax" the controls between Patagonia North B and Patagonia South.114
6.10.
The United States opposes Argentina's request on the ground that Resolution 1282/2008 did relax controls between Patagonia North B and Patagonia South as "part of the process of merging the two separate areas into one Patagonia region".115
6.11.
The Panel recognizes that the use of the term "relaxed" might cause confusion and imply that the border controls were somehow diminished in effectiveness. However, on its face, Resolution 1282/2008 did modify aspects of the controls between Patagonia North B and Patagonia South as part of the process of merging the two separate areas into one region.116 In an effort to provide more clarity, the Panel will change paragraph 7,168 to state that "Resolution 1282/2008 modified the regime of controls between Patagonia North B and Patagonia South as part of the process of merging the two separate areas into one Patagonia region …".
6.12.
Finally, Argentina requests that the Panel's analysis reflect Argentina's strong disagreement with the United States' reference to SENASA's "history of intentional concealment" of FMD outbreaks in paragraph 7.90. In particular, Argentina asks the Panel add language to the effect that Argentina considers the United States' allegations to be contradicted by the facts on record, statements made by APHIS before and after the initiation of the current proceedings, and the assessments made by the sanitary services of other Members. Furthermore, Argentina requests that the Panel add language from Argentina impugning the United States' motives in raising this issue.117
6.13.
The United States opposes Argentina's request. In its view, paragraph 7.90 correctly presents the United States' arguments. Further, in its opinion, the factual statements to which Argentina objects are documented in the United States' submissions and supported by the evidence on the record.118
6.14.
The Panel takes note of Argentina's disagreement with the characterizations made by the United States. In paragraph 7,136, the Panel has already found those characterizations to have no basis in the facts on the record. Similarly, the Panel does not believe there is a basis on the record for Argentina's characterization of the United States' motives. Furthermore, the Panel notes that paragraph 7.90 is a summary of the United States' arguments. It is not appropriate, in our view, to insert commentary from Argentina into this paragraph. However, in the interest of presenting a complete reflection of the views of the parties, the Panel will add language to paragraph 7,132 so as to reflect Argentina's strong disagreement.
6.15.
For its part, the United States requests the Panel to modify its description, in paragraph 7,157, of documents APHIS published in 2014 with respect to Argentina's request for the recognition of Patagonia under 9 CFR 94.1(a) so as to reflect their formal names.119 In particular, the United States asks the Panel to state that on 23 January 2014 APHIS "published a risk assessment for Patagonia in a Notice of Availability that recognized the region as FMD free", and that on 29 August 2014 "APHIS published a Notice of Determination recognizing Patagonia as FMD‑free".120
6.16.
Argentina asserts that the Panel should reject the United States' request, as the risk analysis is not "in" the Notice of Availability, but rather constitutes a "distinct and separate" document.121
6.17.
The Panel wishes to ensure that its Report is clear and in that sense agrees with the United States that it should refer to the relevant documents by their official titles as published. Therefore, the Panel will make the requested changes to paragraph 7,157.
6.18.
Further, the United States requests that the Panel modify entry 27 in Tables 1 and 2, contained in paragraphs 7,120 and 7,146 respectively, by adding that, during consultations carried out pursuant to Article 4 of the DSU, the United States informed Argentina that in order to move forward with APHIS' review processes of Argentina's requests, APHIS would need to schedule a new site visit to verify the FMD conditions in Northern Argentina and Patagonia. In the same vein, the United States requests that the Panel to modify entry 30 in Tables 1 and 2, contained in paragraphs 7,120 and 7,146 respectively, to the effect that on 13 March 2013 APHIS reiterated its request for authorization to conduct a site visit in Northern Argentina and Patagonia. The United States also asks the Panel to reflect such modifications in the chronology contained in Appendix 1 to the Report.
6.19.
Argentina disagrees with the United States' requests, which it sees as "a new argument on a matter previously considered settled when the Panel issued its final timeline".122 According to Argentina, the United States did not officially request a site visit during the consultations in November 2012, but rather did so in March 2013.123 Further, Argentina argues, Article 4.6 of the DSU prevents the United States from basing legal arguments on the exchange between the parties during consultations.124
6.20.
The United States' request entails that the Panel make a conclusion as to what took place during the consultations held pursuant to Article 4 of the DSU. We recall that, under Article 4.6 of the DSU consultations are confidential. A panel is not privy to the record of those discussions and should not attempt to create one.125 In light of the above, the Panel will not make the changes the United States requests.

6.2 THE UNITED STATES' APPROPRIATE LEVEL OF PROTECTION FOR FOOT-AND-MOUTH DISEASE

6.21.
Argentina disagrees with the Panel's conclusion in paragraphs 7,377-7.387 that the language of 7 USC 8303(a), which authorizes the Secretary of Agriculture to prohibit or restrict importation or entry "of animals, articles, or means of conveyance" when this is necessary to "prevent the introduction into or dissemination within the United States of any pest or disease of livestock"126, constitutes a valid ALOP.127 This is because, Argentina asserts, such a statutory authorization is too "vague, formless and implicitly arbitrary".128
6.22.
The United States observes that Argentina is not requesting any further review on the part of the Panel; therefore, the Panel should not change paragraphs 7,377-7.387.129
6.23.
The Panel notes that Argentina makes its statements without making a specific request for review of the Panel's finding. Furthermore, the Panel notes that its determination of the United States' ALOP is based on arguments put forward in the United States' first written submission, its later citation to 7 USC 8303(a) as the source of the language in its first written submission, as well as an examination of the United States' actual measures. Therefore, the Panel will make no changes with respect to its conclusions on the United States' ALOP.
6.24.
Next, Argentina requests that the Panel delete paragraph 7,383, which it considers as disconnected from the arguments of the parties and the facts in dispute.130 In its view, the Panel failed to properly characterize Argentina's position, as Argentina never argued that "the measures applied to different Members need to be identical".131 Moreover, according to Argentina, the Panel conflates the United States' lines of argument before and after the United States presented 7 USC 8303(a) as its ALOP.132
6.25.
The United States disagrees with Argentina and argues that the Panel's reasoning is correct and properly reflects Argentina's arguments.133
6.26.
The Panel fails to see how paragraph 7,383 is inapposite to the arguments Argentina adduced. The Panel never implied that Argentina argued that measures applied to different Members need to be identical. However, Argentina did argue that APHIS' identification of different levels of risk in different Member territories had some bearing on the determination of the appropriate level of protection. It is this argument that the Panel is addressing in paragraph 7,383. In that vein, we find the paragraph and its citation to the panel report in Australia – Salmon relevant to our analysis. The Panel will not delete the paragraph.
6.27.
Finally, Argentina requests that the Panel modify the language of footnote 919 (footnote 968 in the Final Report) in the part where it states that the Panel should take into account the guidance provided by the panel report in India – Agricultural Products on the legal interpretation of the SPS Agreement "as necessary". In particular, Argentina asks the Panel to replace the words "as necessary" with the words "as appropriate".134
6.28.
The United States does not comment on Argentina's request.
6.29.
The Panel agrees with Argentina with respect to the language used to refer to the panel report in India – Agricultural Products. However, upon review, the Panel feels it is appropriate to move this language to the first instance where we cite to that report. Therefore, we will delete the reference in footnote 968 and make the necessary change to footnote 171.

6.3 WHETHER THE UNITED STATES TOOK INTO ACCOUNT THE OBJECTIVE OF MINIMIZING NEGATIVE TRADE EFFECTS WHEN DETERMINING ITS APPROPRIATE LEVEL OF SANITARY PROTECTION

6.30.
Argentina requests the Panel to "reconsider" its reasoning in paragraphs 7,405-7.408135 that the United States has a right to impose a zero risk ALOP for FMD. Argentina maintains that the United States has explicitly rejected that it applies a general ALOP with zero risk; therefore, the Panel's reference is unnecessary.136 Further, in Argentina's opinion, any suggestion on the Panel's part that a Member may adopt different ALOPs for different Members would sit at odds with prior jurisprudence on Articles 2.3, 5.5, and 5.6 of the SPS Agreement.137 Finally, Argentina argues that the Appellate Body's finding in Australia – Salmon referred to by the Panel is a dictum that does not prevent a conclusion that a Member is required properly to articulate its ALOP under Article 5.4.138
6.31.
The United States disagrees with Argentina, which, it argues, misunderstands the Panel's discussion in paragraphs 7,405-7-408. According to the United States, the Panel's central point in those paragraphs is not that the United States does not apply an ALOP with zero risk, but rather that Argentina has not demonstrated that the United States failed to take into consideration the objective of minimizing negative trade effects when determining its ALOP.139 For the United States', the Panel correctly found that even the adoption of a zero ALOP is not sufficient to show that a Member failed to consider the objective of minimizing negative trade effects.140
6.32.
Argentina's request for review misconstrues the Panel's reasoning. We recognize that the reasoning of the Appellate Body in Australia – Salmon is written in the context of explaining an un-appealed portion of the panel report in that case. We nevertheless find value in the Appellate Body's clarification that the reasoning of that panel should not be construed to mean that a Member may not adopt a "zero risk" ALOP. In that light, we continue to find the reasoning persuasive.
6.33.
The reference to a Member's right to impose an ALOP with zero risk is not related specifically to the facts of this case or the United States' ALOP for FMD, which the Panel has concluded is not zero. Rather, the Panel is using this conclusion – the right of a Member to have a zero risk ALOP – as an interpretative tool to assist the Panel in understanding what is required to establish a prima facie case under Article 5.4. The Panel maintains its conclusion that, in light of the reasoning of the Appellate Body in Australia – Salmon, Argentina's allegation that the United States treats Argentina "as if" the United States' ALOP were zero is not sufficient, in and of itself, to establish a prima facie case of inconsistency with Article 5.4.
6.34.
Finally, the Panel can find nowhere in paragraphs 7,405-7.408 where it suggests that a Member may adopt different ALOPs for different Members. Indeed, it is Argentina who claims, in its arguments, that this is what the United States has done and that such conduct somehow relates to the obligation in Article 5.4. Argentina is correct that accepting such ability would depart from the interpretations of prior panels of Article 5.5 – which is the provision of the SPS Agreement that deals with the consistent application of the concept of the ALOP. We note that Argentina did not make a claim under Article 5.5.
6.35.
Based on the foregoing, the Panel will not reconsider its reasoning in these paragraphs.

6.4 WHETHER THE UNITED STATES' MEASURES ARE MORE TRADE-RESTRICTIVE THAN REQUIRED TO ACHIEVE THE UNITED STATES' ALOP

6.36.
The United States request that the Panel modify its description of the United States' argument in paragraph 7,421 with respect to the relationship between Articles 5.6 and 5.7 of the SPS Agreement. Specifically, it asks the Panel to specify that, in the United States' view, an assessment of a less trade-restrictive alternative under Article 5.6 could not be completed as of the date of the Panel's establishment due to the insufficiency of the scientific evidence available at that time, which made the United States' measures fall within the scope of Article 5.7.141
6.37.
Argentina opposes the United States' request on the ground that it contains "factually inaccurate statements and arguments … not previously made".142 For Argentina, the United States' argument that the insufficiency of the evidence concerning Argentina's ability to mitigate and control FMD at the time of the Panel's establishment justified the adoption of a "valid provisional measure" under Article 5.7 constitutes a new argument.143
6.38.
The Panel notes that the United States did make these arguments before the Panel and sees no reason not to include them in the summary of the United States' arguments. Therefore, we will make the requisite modifications to paragraph 7,421. The Panel takes no position on the United States' view.
6.39.
The United States also requests that the Panel modify its description of the United States' argument in paragraph 7,426 with respect to the 2014 risk evaluations for Northern Argentina and Patagonia submitted by APHIS during these proceedings. In particular, the United States asserts that it did not argue that the documents in question were outside the Panel's consideration, but rather that since the information contained therein postdates the date of the Panel's establishment, it cannot be used to support Argentina's argument that the scientific evidence was sufficient on that date.144
6.40.
Argentina requests that the Panel reject the United States' request, because the United States has not previously expressed that opinion. Argentina also notes that there is a great deal of information in those exhibits that pre-dated the Panel's establishment.145
6.41.
As we understand it, the requested change is to add a summary of the United States' response to Panel question No53 following the second substantive meeting, and thus is not a new argument raised during the Interim Review stage. Therefore, we see no reason not to include the response in the summary of the United States' arguments and will make the appropriate modification to paragraph 7,426.

6.5 SPECIAL AND DIFFERENTIAL TREATMENT

6.42.
Albeit agreeing with the Panel's conclusion in paragraphs 7,689-7.691 that Article 10.1 of the SPS Agreement imposes a positive obligation on Members, Argentina expresses the concern that the Panel's interpretation of said obligation "sets the bar so high" for a complaining Member that the provision may become de facto unenforceable.146
6.43.
The United States observes that Argentina does not make any request for review; therefore, the Panel should not change the paragraphs in question.147
6.44.
The Panel notes that Argentina makes no specific request for review with respect to these paragraphs. The Panel also recalls that it does not address the burden of proof under Article 10.1 in the paragraphs referred to by Argentina. Therefore, the Panel will not make any changes.
6.45.
Argentina requests that the Panel reconsider its finding in paragraphs 7,695-7.700 that the Appellate Body's interpretation of the word "consider" in China – GOES does not provide guidance as to the allocation of the burden of proof under Article 10.1 and "adopt the standard and approach found in the Appellate Body Report in China – GOES".148. For Argentina, the fact that the Panel did not follow the Appellate Body's approach and relied instead on the panel in EC – Approval and Marketing of Biotech Products risks "setting an evidentiary basis that cannot be met" by most complaining Members.
6.46.
The United States asks the Panel to reject Argentina's request, as it considers that the Panel properly relied on a "solidly reasoned panel report" relating to Article 10.1 instead of drawing upon "inapposite reasoning" in another report.149
6.47.
The Panel disagrees with Argentina and will not accede to its request. First, as explained in paragraph 7,697, the reasoning of the panel in EC – Approval and Marketing of Biotech Products is directly relevant. This cannot be said of an Appellate Body report dealing with similar language but within the very specific context of the Anti-Dumping and SCM Agreements. Second, the Panel specifically stated in paragraph 7,698that while the absence of documentation is not sufficient on its own to make a prima facie case of inconsistency with Article 10.1, it is relevant evidence and has probative value particularly when a developing country has brought its special need to the attention of the importing Member. The Panel does not view this as an insurmountable bar to establishing a claim under Article 10.1.
6.48.
Finally, Argentina requests that the Panel delete the last three sentences of paragraph 7,710, where it states that Article 10.1 imposes an obligation not only on developed country Members, but indeed on all Members. In Argentina's view, the Panel's reading of the provision at issue is not supported by the plain meaning of its terms read in their context. Moreover, Argentina contends that the effect of the Panel's interpretation would be to "engender broader support for eviscerating the effectiveness of the provision by scaring developing country Members into thinking it would imply fiscal and resource commitments beyond their means".150 Argentina accepts that the types of assistance it refers to might be "more of the nature" of what is covered by Article 9.2. However, Argentina argues that the Panel's reasoning would thus also implicitly undermine Article 9.151
6.49.
The United States opposes Argentina's request. In its view, the language of Article 10.1 does not limit the applicability of the obligations therein to developed country Members.152
6.50.
The Panel agrees with the United States that the language of Article 10.1 nowhere suggests that the obligations contained therein only attach to developed country Members. We disagree with Argentina's argument that it is the Panel's reading of the provision which would impose an obligation on developing countries to provide assistance to their trading partners. The Panel explicitly noted in paragraph 7,710 that "it would be difficult to find that Article 10.1 includes an obligation for the importing Member to take specific action such as correcting and overcoming failures of capacity in the exporting developing country." This language does not support Argentina's argument that the Panel's interpretation could lead to fiscal and resource commitments being imposed on developing and least developing country Members. However, in the interest of clarity the Panel will amend paragraph 7,710 to specify that the obligations relating to technical assistance fall under Article 9 and will delete the reference to which Members the obligation in Article 10.1 applies.

6.6 ARGENTINA'S CLAIMS UNDER THE GATT 1994

6.51.
Without making a specific request for review, Argentina expresses its strong disagreement with the Panel's decision in paragraphs 7,730-7.732 to exercise judicial economy on its claims under Article XI:1 of the GATT 1994. In Argentina's opinion, the "outright prohibition" maintained by the United States on imports of FMD‑susceptible animals and animal products constitutes a "flagran[t]" example of violation of Article XI:1.153
6.52.
The United States observes that Argentina does not make any request for review; therefore, the Panel should not change the paragraphs in question.154
6.53.
The Panel disagrees with Argentina that providing a finding on Articles I and XI of the GATT 1994 would aid in the resolution of this dispute. As noted in paragraph 7,730 of the Report, all prior panels, except one155, before which claims have been raised under the SPS Agreement as well as the GATT 1994 have declined to rule on the GATT 1994 claims. All those panels considered that such rulings would not add anything more to the positive resolution of the dispute. The rulings of those panels are consistent with Article 2.4 of the SPS Agreement which states that all SPS measures which conform to the provisions of the SPS Agreement shall be presumed to be in accordance with the obligations in the GATT 1994. We will modify paragraph 7,730 to further clarify our decision in this regard by making specific reference to Article 2.4 of the SPS Agreement.

7 FINDINGS

7.1 ORDER OF ANALYSIS

7.1.
Before commencing the analysis of Argentina's legal claims, we first consider the order in which we will address such claims.
7.2.
In this dispute, Argentina has made claims under Articles 1.1, 2.2, 2.3, 3.1, 3.3, 5.1, 5.2, 5.4, 5.6, 6.1, 6.2, 8, 10.1, and Annex C(1) of the SPS Agreement as well as under Articles I:1 and XI:1 of the GATT 1994.156 Furthermore, when responding to Argentina's claims under the SPS Agreement, the United States raises Articles 5.7 and 6.3. Additionally, in response to Argentina's claims under the GATT 1994, the United States invokes the General Exception in Article XX(b) of the GATT 1994.
7.3.
The Panel must decide in what order it will examine compliance with obligations under two separate covered agreements (SPS and GATT 1994) as well as the order in which it will examine the claims within the SPS Agreement and the GATT 1994.

7.1.1 Main arguments of the parties

7.4.
Argentina challenges under the SPS Agreement the United States' measures that impose a prohibition on all ruminant and swine products. In particular, Argentina challenges the imposition of the prohibition on fresh (chilled or frozen) beef from Northern Argentina and on ruminants, swine, and products thereof from the Patagonia region (both Patagonia South and Patagonia North B). With the exception of claims with respect to regionalization under Article 6, the claims are the same for both sets of products. Argentina presents them in the following order: Articles 1.1, 3.1, 3.3, 5.1, 5.2, 2.2, 5.7, 5.4, 5.6, 2.3, 6.1 and 6.2 (for Patagonia) and 10.1. Furthermore, Argentina challenges, under Article 8 and Annex C(1), the alleged "undue delay" by the United States in reviewing Argentina's requests with respect to both Northern Argentina and Patagonia.
7.5.
The United States, for its part, argues that the main point of Argentina's claims relates to the timeliness of APHIS' process for determining whether and under what conditions allowing imports from Argentina and/or Patagonia would satisfy the United States' ALOP for FMD.157 The United States maintains that Argentina does not dispute that the import prohibition on FMD‑susceptible animals and animal products from Argentina was warranted at the time of adoption.158 Therefore, the United States argues that the Panel should begin its analysis with the two provisions of the SPS Agreement that it believes concern the timeliness of APHIS' process – namely Annex C(1)(a) and Article 5.7.159
7.6.
The United States argues that an examination of these provisions is what is necessary to resolve this dispute160, and maintains that even if the Panel were to see the need to further address Argentina's other claims, these two provisions should be placed first in the analysis to avoid "contorting procedural concerns into substantive ones."161 Thus, the United States proposes the following order: Article 8 and Annex C(1), Article 5.7, if necessary Articles 5.1, 5.2, 2.2, 5.4, 5.6, 2.3, 3.1, 3.3, 6.1, 6.2, and 10.1, and GATT 1994 Articles I:1 and XI:1.162

7.1.2 Analysis by the Panel

7.2 WHETHER THE UNITED STATES' MEASURES ARE SPS MEASURES

7.2.1 Relevant legal provisions

7.21.
Article 1 of the SPS Agreement establishes the scope of application of the Agreement, and reads as follows:

1. This Agreement applies to all sanitary and phytosanitary measures which may, directly or indirectly, affect international trade. Such measures shall be developed and applied in accordance with the provisions of this Agreement.

2. For the purposes of this Agreement, the definitions provided in Annex A shall apply.

7.22.
In turn, Annex A(1) of the SPS Agreement sets forth the definition of an SPS measure as "[a]ny measure applied":

(a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms;

(b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;

(c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or

(d) to prevent or limit damage within the territory of the Member from the entry, establishment or spread of pests.

Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria, processes and production methods, testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; packaging and labelling requirements directly related to food safety.

7.2.2 Main arguments of the parties

7.2.2.1 Argentina

7.23.
Argentina argues that all the measures at issue in this dispute are sanitary measures within the meaning of Article 1.1 and Annex A of the SPS Agreement.
7.24.
In particular, Argentina claims the application of the prohibitions contained in 9 CFR 94.1(b) to imports of fresh (chilled or frozen) beef from Argentina, as well as the 2001 Regulations through which APHIS imposed such prohibitions, are applied to protect the health and life of animals from risks arising from the entry, establishment and spread of FMD within the United States territory.179 Moreover, Argentina argues that because the United States' market has been closed to Argentine fresh (chilled or frozen) beef for more than 11 years, this directly affects international trade.180 Accordingly, Argentina asserts that the measures at issue are sanitary measures covered by Article 1.1 and Annex A of the SPS Agreement.181 Argentina maintains that the measures in question are inconsistent with Article 1.1 of the SPS Agreement because they are not applied in accordance with the provisions of that agreement.182
7.25.
Further, in Argentina's opinion, the application of the prohibitions contained in 9 CFR 94 to imports of FMD‑susceptible animals and animal products from Patagonia is an SPS measure because such a measure is applied to protect the health and life of animals within the United States from the risks arising from the entry, establishment and spread of FMD183 and directly affects international trade in such products.184 Argentina claims that the measure at issue violates Article 1.1 of the SPS Agreement because it is not applied in accordance with the provisions of that agreement.185
7.26.
With respect to APHIS' application of the approval procedures set forth in 9 CFR 92.2 to Argentina's requests for importation of Argentine fresh (chilled or frozen) beef and for the recognition of Patagonia as FMD‑free, Argentina notes that successfully completing such procedures is a prerequisite for obtaining authorization to import the relevant products into the United States.186 In turn, Argentina argues, the procedures set forth in 9 CFR 92.2 are aimed at ensuring that the requirements under 9 CFR 94, which allow importation of animal and animal products only from those countries and regions that APHIS has declared free of FMD, are met.187 Therefore, according to Argentina, such procedures are SPS measures within the meaning of Article 1.1 and Annex A.188
7.27.
Argentina also claims that Section 737 of the 2009 Omnibus Appropriations Act contributed to the undue delays in APHIS' review processes of its two requests.189 For Argentina, the references in Section 737 to "domestic animal health aspects that are administered by APHIS" indicate that the stated objective of the Section is to protect animal life and health within the United States from the entry, establishment, or spread of FMD, thus constituting an SPS measure within the meaning of Article 1.1 and Annex A.190 In Argentina's view, this is buttressed by the textual similarities between Section 737 and Section 727 of the 2009 Omnibus Appropriations Act and by the fact that the latter was found to be an SPS measure under Article 1.1 and Annex A by the panel in US – Poultry (China).191

7.2.2.2 United States

7.28.
The United States does not disagree with Argentina that the measures at issue are SPS measures which fall within the ambit of the SPS Agreement.192 Indeed, the United States confirms that its measures "are taken for a purpose set forth in Annex A(1)(a) of the SPS Agreement".193
7.29.
The United States asserts that because Section 737 "ceased to exist before this dispute was initiated" it is not within the terms of reference of this dispute.194 In the United States' view, to be a measure subject to the Panel's terms of reference, "the measure must be in force when the [DSB] established the panel".195

7.2.3 Analysis by the Panel

7.2.3.1 Whether the United States' measures are SPS measures within the meaning of Annex A(1)

7.31.
The Appellate Body noted in its report in Australia – Apples that "[a] fundamental element of the definition of 'SPS measure' set out in Annex A(1) is that such a measure must be one 'applied to protect' at least one of the listed interests".197 The Appellate Body further explained that the word "applied" points to the application of a measure, suggesting that a relationship between the measure and one of the objectives identified in Annex A(1) must be present in the measure itself, or otherwise evident from circumstances related to the application of the measure.198 Consequently, the Appellate Body concluded by finding that "the purpose of a measure is to be ascertained on the basis of objective considerations"199 and a clear and objective relationship must exist between the measure in question and the purposes identified in Annex A(1).200 In particular, the Appellate Body clarified that whether a measure is "applied … to protect" in the sense of Annex A(1)(a) "must be ascertained not only from the objectives of the measure as expressed by the responding party, but also from the text and structure of the relevant measure, its surrounding regulatory context, and the way in which it is designed and applied."201

7.2.3.1.1 The 2001 Regulations and 9 CFR 94

7.34.
The 2001 Regulations and 9 CFR 94 as published in the Federal Register of the United States and the Code of Federal Regulations, respectively, fall within the types of measures included in the indicative list of sanitary and phytosanitary measures set forth in the second sentence of Annex A(1).
7.35.
Argentina has indicated, and the United States has not disagreed, that the purpose of the 2001 Regulations and of 9 CFR 94 is that identified in Annex A(1)(a) – i.e. to protect the health of susceptible animals (ruminants and swine) within the territory of the United States from risks arising from the entry, establishment or spread of FMD.204 This purpose can be derived from the text of the measures itself. The 2001 Regulations both refer specifically to the recent outbreak of FMD in Argentina and to the need to "protect the livestock of the United States from foot-and-mouth disease".205 Furthermore, the statutory authority for the Department of Agriculture to implement 9 CFR 94 derives from the permission to prohibit or restrict importation or entry "of animals, articles, or means of conveyance" set forth in 7 USC 8303(a) if such actions are necessary to prevent the introduction or dissemination of pests or diseases that affect livestock.206 Thus, the 2001 Regulations and 9 CFR 94 manifest a clear and objective relationship with the purpose set forth in Annex A(1)(a).
7.36.
As the 2001 Regulations and 9 CFR 94 fall within the indicative list of measures in the second sentence of Annex A(1) and are applied for the purpose described in Annex A(1)(a), we find that the 2001 Regulations and 9 CFR 94 are SPS measures as defined in Annex A(1).

7.2.3.1.2 Application of the procedures set forth in 9 CFR 92.2 to Argentina's requests

7.37.
The procedure in 9 CFR 92.2 is part of the process to determine whether products from a country or region pose a particular risk of introduction or dissemination of a pest or livestock disease into the United States. The procedure is set forth in the United States' Code of Federal Regulations and thus could fall within the reference to either "regulations" or "procedures" in the second sentence of Annex A(1).
7.38.
9 CFR 92.2 describes the information APHIS requires and the process APHIS follows to determine which countries or regions will be authorized to import (those listed in 9 CFR 94.1(a)) and which countries or regions are subject to the prohibition (9 CFR 94.1(b)). As we have concluded that 9 CFR 94 is applied for the purpose set forth in Annex A(1)(a), we likewise conclude that 9 CFR 92.2 also manifests a clear and objective relationship with that purpose. Thus, 9 CFR 92.2 is an SPS measure as defined in Annex A(1).
7.39.
However, although 9 CFR 92.2 is de jure applied to protect animal life or health from the entry, establishment or spread of FMD, we note that Argentina is not challenging the content of 9 CFR 92.2 "as such", but rather APHIS' application of these procedures to Argentina's requests for authorization to import. Therefore, the Panel must determine whether the measure "as applied" satisfies the definition in Annex A(1).
7.40.
In our view, the reference to "procedures" in the second sentence of Annex A(1) is broad enough to encompass both procedures of general application as well as the specific implementation of a procedure in a particular instance.207 Furthermore, we recall the consistent practice in WTO dispute settlement pursuant to Article 3.3 of the DSU that any act or omission attributable to a Member may be challenged as a "measure" for dispute settlement purposes.208 Panels and the Appellate Body have in many instances permitted Members to challenge the specific application of particular laws, regulations, procedures or practices as measures.209 We see no reason why this would be different in the context of the SPS Agreement.
7.41.
Therefore, we find that the application of 9 CFR 92.2 to APHIS' review of Argentina's requests for authorization to import is an SPS measure as defined in Annex A(1).

7.2.3.1.3 Section 737 of the 2009 Omnibus Appropriations Act

7.42.
Turning to Section 737 of the 2009 Omnibus Appropriations Act (Section 737), Argentina argued in its response to the Panel's questions that such provision is an SPS measure that falls within the scope of Annex A(1)(a).210 We note that Section 737 directly regulates the authority of the Secretary of Agriculture to approve the importation of the relevant products from Argentina and that it prevents him from taking such action until he has "reviewed the domestic animal health aspects of the pending proposal to allow the importation of such products into the United States and has issued a report to the Committees on the findings of such review."211 Thus, the purpose of Section 737 is directly linked to the risks to health of domestic animals in the United States from the potential importation of the relevant Argentine or Patagonian products pursuant to the proposal pending at the time, which was the Proposed Rule to designate Patagonia as FMD‑free and to permit importation according to certain protocols.
7.43.
With respect to the second sentence of Annex A(1), we note that Section 737 is a provision of a law enacted by Congress and signed by the President of the United States. As such, it falls within the scope of "laws, decrees, regulations, requirements and procedures" in Annex A(1).212 Given the relationship between the operation of Section 737 and the requirement that the Secretary of Agriculture assure Congress through a specific report on the animal health aspects of permitting importation of ruminant and swine products from Argentina, we find that a sufficient nexus exists between this law and the purpose set forth in Annex A(1)(a). Therefore, the Panel finds that Section 737 is an SPS measure as defined in Annex A(1).

7.2.3.2 Whether the United States' measures directly or indirectly affect international trade

7.45.
Although the United States argues that its measures are based on international standards and that it is diligently working to analyse Argentina's applications to import, it does not dispute that the measures in place at the time of establishment of the Panel were total import prohibitions on fresh (chilled or frozen) beef from Northern Argentina and on ruminant and swine products from Patagonia.
7.46.
In particular, we note that the 2001 Regulations and the current version of 9 CFR 94.1(b) specifically prohibit the importation of the relevant products from either Northern Argentina or Patagonia. Further, the application process in 9 CFR 92.2 specifically states that any existing prohibition remains in place unless and until the outcome of the process leads to a decision to authorize imports. Additionally, Section 737 prevents the Secretary of Agriculture from completing the process under 9 CFR 92.2 until he submits a report to Congress. Therefore, the extension of the time required for the review or the lack of any conclusion to the review of Argentina's applications for imports of fresh (chilled or frozen) beef from Northern Argentina and FMD‑susceptible animals and animal products from Patagonia has the effect of keeping the prohibition in place.
7.47.
Thus, consistent with the understandings of the panels in India – Agricultural Products and EC – Hormones,we conclude that the measures at issue directly or indirectly affect international trade.

7.2.4 Conclusion

7.48.
The Panel has determined that the United States' measures are applied to achieve the purpose set forth in Annex A(1)(a), that they take one of the forms listed in the main paragraph of Annex A(1), and that they directly or indirectly affect international trade. Therefore, the Panel finds that the United States' measures are SPS measures subject to the disciplines of the SPS Agreement.
7.49.
With respect to the consequential claim under Article 1.1, we will return to this after we have completed our analysis of Argentina's substantive claims.

7.3 CONTROL, INSPECTION AND APPROVAL PROCEDURES

7.3.1 Relevant legal provisions

7.50.
Article 8 of the SPS Agreement, entitled "Control, Inspection and Approval Procedures", reads as follows:

Members shall observe the provisions of Annex C in the operation of control, inspection and approval procedures, including national systems for approving the use of additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.

7.51.
In turn, Annex C(1) of the SPS Agreement, which is also entitled "Control, Inspection and Approval Procedures", reads, in relevant part:

1. Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:

(a) such procedures are undertaken and completed without undue delay … ;

(b) the standard processing period of each procedure is published or that the anticipated processing period is communicated to the applicant upon request; when receiving an application, the competent body promptly examines the completeness of the documentation and informs the applicant in a precise and complete manner of all deficiencies; the competent body transmits as soon as possible the results of the procedure in a precise and complete manner to the applicant so that corrective action may be taken if necessary; even when the application has deficiencies, the competent body proceeds as far as practicable with the procedure if the applicant so requests; and that upon request, the applicant is informed of the stage of the procedure, with any delay being explained; …

7.52.
Footnote 7 to Annex C(1) clarifies that "[c]ontrol, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification".
7.53.
As the United States has argued that the procedures at issue in this dispute are not of the type subject to the obligations in Article 8 and Annex C(1), the Panel will address, first, the question of whether Article 8 and Annex C(1) of the SPS Agreement are applicable to APHIS' review processes of Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free. If the provisions in question are applicable, the Panel will assess Argentina's claims that the United States' measures at issue are inconsistent with Article 8 and Annex C(1)(a) and C(1)(b).

7.3.2 Whether the application of the procedures set forth in 9 CFR 92.2 to Argentina's requests falls within the scope of Article 8 and Annex C(1) of the SPS Agreement

7.3.2.1 Main arguments of the parties

7.3.2.1.1 Argentina

7.54.
Argentina submits that the procedures set forth in 9 CFR 92.2 constitute an "approval procedure" within the meaning of Article 8 and Annex C of the SPS Agreement. It argues, in particular, that because imports of animals or animal products from a region or country are conditioned upon the evaluation of its FMD status under the procedures under 9 CFR 92.2215, such procedures are "analogous to the types of procedures specifically articulated in Annex C", especially procedures for "sampling, testing and certification" listed in footnote 7 to Annex C.216 Moreover, Argentina considers that the procedures set forth in 9 CFR 92.2 "are imposed to 'ensure'" compliance with the requirement under 9 CFR 94 that animal and animal products be imported "only from those countries and regions which APHIS has declared free of certain diseases, including FMD".217 Therefore, the application of those procedures to Argentina's requests are subject to the obligations in Article 8 and Annex C(1).218
7.55.
Argentina further argues that the reference in Annex C(1) to "any procedure", which aims to "check and ensure the fulfilment of sanitary and phytosanitary measures" suggests broad construction of the scope of coverage of Article 8 and Annex C.219 Moreover, in Argentina's view, the fact that the lists of measures enumerated in Article 8 and Annex C are introduced by the words "including" and "include, inter alia", respectively, indicates that such lists are indicative and not exhaustive.220 Moreover, Argentina observes that, according to the Appellate Body, "measures which are not, technically, 'procedures' but which impede the process of undertaking or completing procedures, may also give rise to a violation" of Annex C(1).221
7.56.
Finally, Argentina takes issue with the United States' argument that the obligations in Article 8 and Annex C are limited to procedures that govern products or substances, as opposed to determinations of the FMD status of countries or regions. For Argentina, "nowhere in the text of the treaty are the words 'control, inspection and approval procedures' so narrowly qualified".222

7.3.2.1.2 United States

7.57.
The United States argues that Article 8 and Annex C do not apply to processes carried out pursuant to 9 CFR 92.2 because the provisions in question do not govern the determination of disease status for geographical areas, but rather address control, inspection and approval procedures for specific products.223 In support of its contention, the United States points out that footnote 7 of Annex C makes no reference to examination of disease-free status.224 The United States also notes that the illustrative examples in Annex C of the types of procedures covered do not include disease-free status determinations.225 Finally, the United States argues that subparagraphs (a), (d), (e), (f), (g), and (h) of Annex C(1) provide support for its conclusion that the procedures covered by Annex C are those designed to check and ensure the fulfilment of SPS measures as applied to specific products rather than geographical areas.226
7.58.
Furthermore, the United States contends that Article 8 on its face applies only to control, inspection or approval procedures, and not all SPS measures.227 According to the United States, an understanding that Article 8 and Annex C govern any measures that impose conditions on import would make Annex C applicable to every SPS measure.228

7.3.2.2 Main arguments of the third parties

7.3.2.2.1 Brazil

7.59.
Relying on the panel report in Australia – Salmon (Article 21.5 – Canada), Brazil considers that Article 8 and Annex C(1) apply to procedures that have been implemented to ensure the fulfilment of SPS measures, but they do not cover the "substantive measures" themselves.229 In its view, determinations of disease status for geographical areas fall within the ambit of such provisions as they are "part of the procedures to ensure the fulfilment and application of an SPS measure".230

7.3.2.2.2 China

7.60.
In China's view, Article 8 and Annex C(1) of the SPS Agreement have broad coverage and do not specify or exclude any type of procedures from their application.231 Indeed, China observes, the panel in US – Poultry (China) considered that Annex C(1) covers any procedure that is aimed at checking and ensuring the fulfilment of SPS measures.232 China also notes that, according to the Appellate Body in Australia – Apples, Article 8 and Annex C(1) do not necessarily exclude measures other than control, inspection and approval procedures from their scope of application.233

7.3.2.2.3 European Union

7.61.
The European Union disagrees with the United States' contention that the rules against undue delay contained in Article 8 and Annex C of the SPS Agreement apply only to products and not to regions.234 In the European Union's view, the language of such provisions does not contain any limitation in this regard235 and indeed does not provide an exhaustive list of procedures that fall within their purview.236

7.3.2.3 Analysis by the Panel

7.64.
Therefore, the issue before us is whether the United States' application of 9 CFR 92.2 to Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free within the meaning of 9 CFR 94.1(a) constitutes one of the procedures falling within the scope of Article 8 and Annex C(1).

7.3.2.3.1 "Any" procedure

7.65.
Argentina maintains that the procedures set out in 9 CFR 92.2 fall within the scope of Article 8 and Annex C(1) because they are approval procedures and because they are aimed at checking and ensuring the fulfilment of an SPS measure.240 The United States responds that Article 8 and Annex C(1), on their face, apply only to control, inspection or approval procedures for specific products241, and do not govern the determination of the disease status of geographical areas.242

7.3.2.3.2 To "check and ensure" the "fulfilment" of an SPS measure

7.72.
The dictionary defines the verb "to check" as "[t]o control (a statement, account, etc.) by some method of comparison; to compare one account, observation, entry, etc., with another, or with certified data, with the object of ensuring accuracy and authenticity"; the related verb "to check on" is defined as "to examine carefully or in detail; to maintain a check on; to ascertain the truth about; … to check out, to investigate, examine for accuracy, authenticity, or a confirmation of fitness".252 The definition of the verb "to ensure" is "[t]o make certain the occurrence or arrival of (an event), or the attainment of (a result)".253 Finally, the verb "to fulfil" is defined as "[to p]rovide fully with what is wished for; satisfy the appetite or desire of; … Make complete, supply with what is lacking; replace (something); … Carry out, perform, do (something prescribed)".254 In turn, as observed in paragraph 7.31 above, the Appellate Body defined an SPS measure as one "applied … to protect" at least one of the interests listed in Annex A(1) of the SPS Agreement.255 According to the Appellate Body, the word "applied" suggests that a "clear and objective relationship" between the measure and one of the objectives identified in Annex A(1) must be present in the measure itself, or otherwise evident from circumstances related to the application of the measure, such as "its surrounding regulatory context", and the way in which it is designed and operates.256
7.74.
We have already found above that the procedures in 9 CFR 92.2 are part of the process to determine whether products from a specific country or region pose a particular risk of introduction or dissemination of FMD into the United States.257 Those procedures, in other words, are designed to ensure compliance with the requirement under 9 CFR 94 that FMD‑susceptible animals or animal products be imported into the United States only from countries or regions that APHIS has determined to be FMD‑free. We also found that such a requirement constitutes an SPS measure within the meaning of Annex A(1) of the SPS Agreement.258 In turn, we note that 9 CFR 94.1 is implemented for the purpose of achieving the objective set forth in 7 USC 8303(a), to "prevent the introduction into or dissemination within the United States of any pest or disease of livestock."259
7.75.
In light of the above, we take the view that procedures carried out under 9 CFR 92.2 are aimed at checking and ensuring the fulfilment of another SPS measure, namely 9 CFR 94, which, in turn, is intended to achieve the objective set forth in 7 USC 8303(a).

7.3.2.3.3 Conclusion

7.76.
Based on the foregoing, we conclude that the application of the disciplines of 9 CFR 92.2 to Argentina's requests for authorization to import fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free fall within the scope of Article 8 and Annex C(1) of the SPS Agreement. Having reached this conclusion, we move on to examine Argentina's claim that there was undue delay in the way the United States undertook and completed these processes contrary to the obligations in Article 8 and Annex (C)(1)(a).

7.3.3 Whether APHIS' review processes of Argentina's requests were undertaken and completed without undue delay

7.77.
Given the length and complexity of the legal and factual arguments made with respect to this claim, the Panel will first set out the general arguments of the parties and third parties on the interpretation of the obligation in Article 8 and Annex C (1)(a) and then move on to address the arguments with respect to the alleged undue delay in the approval processes for Argentina's applications for authorization to import fresh (chilled or frozen) beef from Northern Argentina and for the Patagonia region to be designated FMD‑free.

7.3.3.1 General arguments of the parties

7.3.3.1.1 Argentina

7.78.
Argentina claims that APHIS' application of the procedures under 9 CFR 92.2 to Argentina's requests for imports of fresh (chilled or frozen) beef from Northern Argentina and for recognition of Patagonia as FMD‑free incurred undue delays and is therefore inconsistent with the requirement under Article 8 and Annex C(1)(a) of the SPS Agreement that procedures under these provisions be "undertaken and completed without undue delay".260 In its responses to Panel questions, Argentina clarified that, in its view, such delays do not concern APHIS' initiation of the approval processes upon reception of the two requests, but rather the completion of such approval processes.261
7.79.
Argentina submits that, in determining whether a delay is undue, the Panel should examine the reasons for such a delay.262 Relying on the panel report in EC – Approval and Marketing of Biotech Products,Argentinamaintains that the relevant "delay" to be examined is not only one in undertaking an approval procedure, but also in finishing or concluding that procedure.263 Moreover, in Argentina's view, amendments to approval procedures during the pendency of a request do not erase the delay incurred until that point, nor do they require that undue delay be established prior to and following such amendment.264

7.3.3.1.2 United States

7.80.
The United States disagrees with Argentina's focus on the overall length of time of APHIS' approval processes of Argentina's requests rather than on specific periods of delay.265 Relying on the panel report in EC – Approval and Marketing of Biotech Products, the United States argues that an assessment of whether a delay is undue must be conducted on a case-by-case basis, taking into account all the relevant facts and circumstances.266 The United States asserts that the length of time of the approval processes of imports of Argentine products conducted by other WTO Members is not a reliable benchmark against which to gauge APHIS' reviews, as different Members may differ in terms of the specific information they require to reach a decision and the ALOP they have determined for the risk at issue.267
7.81.
In the United States' view, not every delay in undertaking or completing an approval procedure is contrary to the provisions of Annex C(1)(a), but only an unjustifiable one.268 The United States considers that this standard is equivalent in nature to that applied to assess what constitutes a "reasonable period of time" under Article 5.7 of the SPS Agreement.269 For the United States, possible factors justifying a delay include (i) delays attributable to the applicant itself rather than to the approving Member270; (ii) the necessity to reasonably determine with adequate confidence whether the relevant SPS requirements have been fulfilled271; and (iii) the submission or supervening availability of additional relevant information at a late stage of an approval procedure.272
7.82.
In the United States' opinion, APHIS had the difficult task of conducting a thorough examination of Argentina's ability to prevent and control FMD within its territory.273 It also stresses that obtaining the necessary information to proceed with the approval processes was not easy, as the data to be collected were (i) not in the United States; (ii) of substantial scope and breadth including geographical information, internal and cross-border animal movements, quarantine processes, and veterinary infrastructure; and (iii) only accessible with Argentina's cooperation.274

7.3.3.2 APHIS' review of Argentina's request for imports of fresh (chilled or frozen) beef from Northern Argentina

7.3.3.2.1 Argentina

7.83.
Argentina notes that it filed its request for imports of fresh (chilled or frozen) beef in November 2002275 and that at the time of the establishment of the Panel it had not received a decision on such request despite SENASA cooperating fully with all of APHIS' requests for information and site visits.276 Argentina argues that the United States could not need more than 11 years to evaluate the FMD status of Argentina277, especially as the request only sought to reinstate import rights previously granted during the period 1997-2001278 and APHIS had already reviewed the history of FMD outbreaks and other scientific evidence pertaining to Northern Argentina.279
7.84.
To provide a sense of what time-frame it views as reasonable for the conclusion of the process, Argentina refers to the Terrestrial Code, which provides that a period of 12 months since the most recent outbreak is a sufficient time, from an epidemiological perspective, to obtain FMD‑free status.280 Argentina also notes that the time it took to approve Uruguay from the time of its last outbreak was two years.281 Argentina also argues that the FMD situation in Northern Argentina is similar to Uruguay's in terms of the timing of the last outbreak and because both regions are recognized by the OIE as FMD‑free where vaccination is practised.282 In this regard, Argentina also notes that while it had been previously authorized to export fresh (chilled or frozen) beef to the United States, Uruguay had no such previous authorization.283 Argentina also considers that the fact that the European Union and Chile promptly reopened their markets to Argentine beef following the 2003 and 2006 FMD outbreaks is "indicative of the time reasonably necessary to conduct an evaluation for FMD".284
7.85.
Argentina contends that, after its site visit to Northern Argentina following the 2006 FMD outbreak in the Province of Corrientes, APHIS did not request any further information from SENASA, nor did it take any further action.285 It also submits that, in response to a letter from Argentina, APHIS stated in September 2010 that it was "currently drafting a proposed rule that would allow the importation of fresh, chilled or frozen Argentine beef under certain conditions".286 Similarly, Argentina observes, at the June and October 2011 sessions of SPS Committee, the United States' representative stated that APHIS had completed a risk analysis for Northern Argentina.287 In Argentina's view, the above statements by APHIS and the United States' representative at the SPS Committee indicate that, in September 2010, APHIS had already completed a risk assessment for Northern Argentina which it did not publish288, or, at least, that APHIS had all the information needed to complete one.289 In this regard, Argentina contends that, under the public international law rules on State responsibility, "the United States must be held to the evidence of statements" made by its officials.290
7.86.
In Argentina's view, the above events reveal that APHIS had no scientific rationale for waiting over six years after the 2006 FMD outbreak to proceed with the review of its request.291 Rather, in its view, the delay in APHIS' approval process is due to a number of elements extraneous to science.292 Argentina also argues that Section 737 of the 2009 Omnibus Appropriations Act contributed to the undue delay because it precluded any activity on APHIS' part in connection with Argentina's pending requests293 at least from March 2009 to September 2009, and deterred APHIS from moving forward even after its expiration.294 In this regard, Argentina also argues that Section 737 is very similar to Section 727 of the 2009 Omnibus Appropriations Act295, which the panel in US – Poultry (China) found to impose undue delay in approval procedures inconsistently with Article 8 and Annex C(1)(a).296
7.87.
Finally, Argentina maintains that APHIS' new request for a site visit to Northern Argentina in March 2013, followed by the actual visit in November 2013, "do not resolve a gap of six years during which there has been no progress on Argentina's application".297

7.3.3.2.2 United States

7.88.
The United States argues that Argentina fails to offer any factual support for its claim of undue delay with respect to APHIS' approval process of imports of fresh (chilled or frozen) beef.298 It maintains that, since the filing of Argentina's request in November 2002, APHIS engaged with SENASA by requesting information and conducting site visits to Northern Argentina.299
7.89.
The United States asserts that the delays in the approval process are not attributable to APHIS, but rather to a "lag in informational response time" on the part of SENASA.300 In particular, the United States observes that (i) SENASA took over one year to answer additional questions posed by APHIS in October 2003 concerning the FMD situation in Northern Argentina301; and (ii) when APHIS requested a new site visit to Northern Argentina in March 2013, SENASA delayed the visit until November 2013.302
7.90.
Further, the United States argues that APHIS' delay in processing Argentina's request is due to the changing FMD conditions in the country. The 2003 and 2006 FMD outbreaks in Northern Argentina, for instance, "raise[d] obvious serious concerns" with respect to SENASA's ability to prevent and control FMD and required revised analysis.303 Moreover, the United States asserts, SENASA suffered a labour strike in 2005, which gave rise to doubts as to its ability to control FMD.304 The United States also argues that Argentina's "history of intentional concealment and delayed reporting of outbreaks" played a "significant role" in APHIS' verification of SENASA's information and capability, as it "called for greater diligence, and for more time", to conduct such an evaluation.305
7.91.
The United States submits that, because the FMD situation on the ground kept evolving throughout the approval process, APHIS did not have all the information necessary to complete its risk assessment for Northern Argentina until it conducted its site visit to Northern Argentina in November 2013.306 Specifically, according to the United States, the November 2013 visit was aimed at "re-confirm[ing] and updat[ing]" information in possession of APHIS as a result of the 2006 site visit to Northern Argentina and the 2009 site visit to Patagonia.307
7.92.
In this regard, the United States disagrees with Argentina's characterization of the statements by APHIS in April 2009 and September 2010 and by the United States' representative before the SPS Committee in June and October 2011. The United States contends that, at the time such statements were made, APHIS had not completed a risk assessment for Northern Argentina308, nor did it have enough information to complete one.309
7.93.
Finally, the United States disagrees with Argentina that Section 737 of the 2009 Omnibus Appropriations Act contributed to delays in APHIS' review processes of Argentina's request. It contends that while Section 737 temporarily discontinued the funding necessary for authorizing meat imports from Argentina, it still preserved the Secretary of Agriculture's powers to review any requests to import meat from Argentina pursuant to 9 CFR 92.2.310 Moreover, the United States argues that Section 737, together with the whole 2009 Omnibus Appropriations Act, expired less than a year after it was adopted.311 It adds that to the extent that the United States' representative's statements before the SPS Committee could be understood to suggest that Section 737 had a lingering effect on APHIS after its expiration, those statements were incorrect.312 Hence, the United States takes issue with Argentina's assertion that Section 737 is similar to Section 727, which was found to be WTO-inconsistent by the panel in US – Poultry (China), because the latter provision "completely foreclosed the possibility for 'completion'" of approval process and "was still in effect" at the time of that dispute.313

7.3.3.3 APHIS' review of Argentina's request for recognition of Patagonia as FMD‑free

7.3.3.3.1 Argentina

7.94.
Argentina complains that, despite having filed its request for the recognition of Patagonia as FMD‑free in June 2003 and fully cooperating with APHIS throughout the approval process314, APHIS had not issued a final determination at the time of the establishment of the Panel.315 Argentina notes that there has been no FMD outbreak in Patagonia South since 1976 and in Patagonia North B since 1994316, and that the OIE has continuously recognized Patagonia South as FMD‑free where vaccination is not practised since 2002 and has extended the same recognition to Patagonia North B since 2007.317 It also notes that APHIS published a favourable risk assessment for Patagonia South in July 2005 and a proposed rule to recognize Patagonia South as FMD‑free in January 2007.318
7.95.
Argentina points to several instances where it contends, APHIS' process incurred undue delays: (i) the two-year gap (2003-2005) between the filing of its request and the publication of the risk assessment for Patagonia South; (ii) the one-and-a-half year gap (2005-2007) between the publication of that risk assessment and the issuance of the Proposed Rule for the recognition of Patagonia South; (iii) APHIS' failure to proceed with a Final Rule for Patagonia South after the issuance of the Proposed Rule; and (iv) APHIS' failure to proceed with a risk assessment and determination for the entire Patagonia region, comprising both Patagonia South and Patagonia North B, after 2009 (date of APHIS' site visit to the region).319
7.96.
In this regard, Argentina submits that, after the 2009 site visit to Patagonia, APHIS did not request any further information from SENASA.320 Rather, Argentina remarks, in April 2009 APHIS confirmed that it currently had all the information required, and in September 2010 it stated that it had made significant progress towards the recognition of Patagonia as FMD‑free.321 This was confirmed, according to Argentina, by the United States' representative at the SPS Committee in June and October 2011.322 In Argentina's opinion, the above statements by APHIS and the United States' representative at the SPS Committee indicate that, by 2009-2010, APHIS had already completed a risk assessment for Patagonia as a whole which it did not publish323, or, at least, that APHIS had all the information needed to complete one.324
7.97.
As a benchmark for what constitutes a reasonable approval time, Argentina compares the duration of the recognition process for Patagonia with those for Japan, the United Kingdom, and Santa Catarina, which APHIS completed more expeditiously.325 Argentina contends that the Final Rule recognizing Santa Catarina as FMD‑free in 2010 was part of an agreement reached between the United States and Brazil to settle the US – Upland Cotton dispute.326
7.98.
As with the approval process for fresh (chilled or frozen) beef, Argentina claims that the cause of the delay in the recognition of Patagonia was not supported by scientific considerations327, but rather due to non-scientific factors.328 Argentina points, in particular, to Section 737 of the 2009 Omnibus Appropriations Act which, in its view, impeded the completion of APHIS' approval process for Patagonia.329
7.99.
Finally, Argentina contends that the risk assessment and the Proposed Rule for Patagonia issued by APHIS in January 2014 "do not change the parameters" of the dispute, as these documents post-date the establishment of the Panel.330

7.3.3.3.2 United States

7.100.
The United States rejects Argentina's allegations of undue delay with respect to APHIS' review process for recognition of Patagonia as FMD‑free. It asserts that, since the filing of Argentina's request concerning Patagonia South in July 2003, APHIS continuously engaged with SENASA by requesting supplemental information and scheduling and conducting site visits.331 According to the United States, this process resulted in the publication, in June 2005, of APHIS' risk analysis for Patagonia South and, in January 2007, of a Proposed Rule to recognize Patagonia South as FMD‑free within the meaning of 9 CFR 94.1(a).332 The United States further observes that the Proposed Rule was conditional, given that "FMD continued to pose a risk to Patagonia South because of its geography and trading activity".333 It also explains that the one-and-a–half year gap between the publication of the risk assessment for Patagonia South and the publication of the Proposed Rule was due to APHIS' need to comply with the Regulatory Flexibility Act, Executive Order No12988, and the Paperwork Reduction Act.334
7.101.
The United States argues that any further delays in the processing of Argentina's request are not attributable to APHIS, but rather to changing FMD and regulatory conditions in Argentina throughout the review period, as well as to SENASA's inaction in responding to requests for information.335 In particular, the United States contends that SENASA: (i) failed to provide some necessary information as part of its initial request for the recognition of Patagonia South in July 2003336; (ii) took almost one year to provide additional information requested by APHIS in March 2004 as a follow-up to its visit to Patagonia South337; and (iii) postponed APHIS' latest site visit to Patagonia, formally requested in March 2013338, until November 2013.339
7.102.
Moreover, the United States stresses that Argentina extended its request for recognition to Patagonia North B in December 2008, i.emore than five years after its original request for Patagonia South, without providing the necessary supporting information to address the factors listed under 9 CFR 92.2.340 The United States submits that this restructuring of Argentina's initial request altered and delayed the process by requiring APHIS to revise its evaluation to account for the distinct geographical differences between Patagonia South and Patagonia North B and to conduct a new site visit to Patagonia as a whole in February 2009.341
7.103.
Finally, the United States points to Argentina's continuous "revisions to its surveillance regulations and slaughter establishment standards" throughout the approval process.342 In particular, it refers to Resolution No148/2008, which modified the conditions on transport of commercial goods into Patagonia South343, and Resolution No1282/2008, which "resulted in substantial changes to the methods of detecting and preventing the spread of the disease".344 The United States claims that the modifications of border control measures such as those contained in Resolution No1282/2008, called into question SENASA's ability to prevent FMD from penetrating its borders.345 Furthermore, the United States contends that at the time of APHIS' site visit to Patagonia in February 2009, Resolution No1282/2008 had not been fully implemented346; therefore, it could not adequately assess the impact of the revision on Patagonia's ability to control FMD.347
7.104.
In light of the above, the United States maintains that APHIS did not have all the information necessary to complete its risk assessment for Patagonia as a whole (comprising both Patagonia South and Patagonia North B) until it conducted its site visit to the region in November 2013.348 Specifically, according to the United States, the November 2013 visit was aimed at "re‑confirm[ing] and updat[ing]" information in possession of APHIS as a result of the 2006 site visit to Northern Argentina and the 2009 site visit to Patagonia.349 In this regard, the United States disagrees with Argentina's characterization of the statements by APHIS in September 2010 and by the United States' representative before the SPS Committee in June and October 2011. The United States asserts that, at the time such statements were made, APHIS did not have enough information to complete a risk assessment for Patagonia.350
7.105.
Finally, for the same reasons outlined in paragraph 7.93 above, the United States disagrees that Section 737 of the 2009 Omnibus Appropriations Act contributed to delays in APHIS' review processes of Argentina's request.

7.3.3.4 Main arguments of the third parties

7.3.3.4.1 China

7.106.
In China's view, Annex C(1)(a) is "essentially a good faith obligation requiring Members to proceed with their approval procedures as promptly as possible, taking account of the need to check and ensure the fulfilment of their relevant SPS requirements".351 In addition, according to China, the terms "undertake and complete" in Annex C(1) indicate that approval procedures are not only to be undertaken, but are also to be finished, or concluded without undue delay.352 Moreover, China relies on the panel report in EC – Approval and Marketing of Biotech Products in stating that an "undue delay" is determined not by the length of the delay, but by whether the delay is justified.353
7.107.
China considers that a decade-long wait for approval "constitutes a delay" within the meaning of Annex C(1) of the SPS Agreement.354 Therefore, the focus of the dispute should be on whether such delay is justifiable or not.355 Furthermore, China takes the view that Section 737 of the 2009 Omnibus Appropriations Act precluded the United States from issuing a risk assessment and from even initiating a rulemaking process to permit importation from Argentina.356 For these reasons, China considers that Argentina's claims with respect to undue delay should prevail.

7.3.3.4.2 European Union

7.108.
According to the European Union, the question arises whether a Member in receipt of an application that it does not yet find complete or convincing is necessarily required to adopt a negative decision or may rather postpone the decision until such time as it has established that products from the applicant Member are suitable for import.357 In the European Union's view, postponing the decision until it can be favourable to imports may curtail the complaining Member's possibility to benefit from a full representation of the matter in the framework of dispute settlement.358 Conversely, requiring the Member to adopt a negative determination would trigger the question as to when such a determination is due and would raise doubts as to its utility in case the circumstances subsequently change.359 For the European Union, the answer to the question should depend on a case-by-case analysis by panels.360
7.109.
The European Union takes the view that, especially in the absence of a specific negative decision, the complaining and defending Members should be expected to provide an exhaustive and duly evidenced description of any material relevant to the question of the passage of time.361 Only then, the European Union argues, could a panel make an objective assessment of whether or not the passage of time is justified, based on all the facts and evidence.362

7.3.3.5 Analysis by the Panel

7.110.
Annex C(1)(a) of the SPS Agreement requires Members to ensure that control, inspection, and approval procedures are "undertaken and completed without undue delay". We examine the meaning of each term of the provision in turn.

7.3.3.5.1 "Undertaken and completed"

7.111.
We note that Annex C(1)(a) requires that procedures be "undertaken and completed without undue delay". Prior panels have focused on each term separately and as distinct obligations. In the past the term "undertake" has been understood to refer to the beginning363 or commencement364 of the approval procedure. In turn, panels and the Appellate Body have stated that the term "complete" indicates that "approval procedures are not only to be undertaken, but are also to be finished, or concluded".365

7.3.3.5.2 "Without undue delay"

7.116.
The panels in EC – Approval and Marketing of Biotech Products and US – Poultry (China) explained that the determination of what constitutes an undue delay must be made "on a case-by-case basis, taking account of relevant facts and circumstances".377 The panel in EC – Approval and Marketing of Biotech Products provided some guidance on the types of circumstances that might justify a delay taken in carrying out a procedure subject to the obligation in Annex C(1)(a). First, delays attributable to action or inaction of an applicant cannot be held against the Member carrying out the procedure.378 Second, delays which "are justified in their entirety" by the Members' need "to determine with adequate confidence whether their relevant SPS requirements are fulfilled" should not be considered undue.379 Third, if "new or additional information becomes available at a late stage in an approval procedure" and that information may reasonably be considered to "have a potential impact on a Member's determination", it "might be justifiable for the Member concerned to delay the completion of the procedure" in order to assess the information.380
7.117.
Applying this reasoning to the present dispute, we consider that the period of 11 years following Argentina's requests during which APHIS was conducting the procedure is not, in and of itself, conclusive as to whether such procedures incurred undue delay inconsistently with Article 8 and Annex C(1)(a). Rather, we shall conduct our analysis based on all the relevant facts and circumstances presented by the parties. That being said, it would be difficult for us to gauge the reasonableness of the length of time of APHIS' review processes in the absence of a point of reference. Therefore, we find it useful to rely on a number of indicators that, without being dispositive of our assessment, may nonetheless assist us in our analysis. Such indicators include the standard processing time reflected in APHIS' own policy and practice as well as guidelines provided by the OIE.
7.119.
With these considerations in mind, we now turn to Argentina's claims that APHIS' review processes of its requests incurred undue delays inconsistently with Article 8 and Annex C(1)(a).

7.3.3.5.3 APHIS' review process of Argentina's request concerning imports of fresh (chilled or frozen) beef from Northern Argentina

7.120.
We shall assess, first, whether APHIS' review process of Argentina's request concerning imports of fresh (chilled or frozen) beef from Northern Argentina incurred a delay. If so, we shall turn to determining whether such a delay was undue. For ease of reference, we include the events relevant to Argentina's request for market access including APHIS' review and the Panel proceedings in Table 1 below. We also refer to the more comprehensive chronology contained in Appendix 1 to this Report for further information.

Table 1: Chronology of events relating to APHIS' review of Argentina's request for imports of fresh (chilled or frozen) beef from Northern Argentina and the Panel proceedings

No.EventDateInterval (approx.)
1. SENASA submitted a request for authorization of imports of Argentine fresh (chilled or frozen) beef into the United States pursuant to 9 CFR 92.384Nov. 2002
2. Officials from the United States met with Argentina officials and requested technical documents to allow for the initiation of a risk analysis.38516 Dec. 2002 1 month
3. Officials from the United States and Argentina animal health officials met to discuss a range of issues.386 During the meeting, the countries confirmed that a technical team would visit Argentina in September 2003 to discuss the status of FMD.38723 Apr. 2003 4 months
4. SENASA notified the OIE of the presence of animals with symptoms similar to FMD in the city of Tartagal, Department of San Martin, Province of Salta.38828 Aug. 2003 4 months
5. Suspicion of an FMD outbreak in the city of Tartagal, Department of San Martin, Province of Salta.389 SENASA notified APHIS of the situation on the same day.39029 Aug. 2003 1 day
6. Outbreak of Type "O" confirmed in the city of Tartagal, Department of San Martin, Province of Salta. A SENASA epidemiological report performed on pigs in the establishment concerned revealed that 16 pigs were infected, 2 of which died.3912 Sep. 2003 4 days
7. APHIS arranged to perform a site visit in September 2003 to the Argentina region bordering Bolivia. However, the visit was cancelled by SENASA.392Sep. 2003 1 month
8. APHIS requested additional information from SENASA with respect to the FMD outbreak in Salta and notified SENASA of the model APHIS would use to assess the risk of FMD and the ensuing requests for additional information to develop input parameters.3933 Oct. 2003 1 month
9. An additional APHIS site visit was scheduled to occur on 6 October 2003; however, SENASA notified APHIS of the FMD outbreak.394 APHIS cancelled the visit.3956 Oct. 2003 3 days
10. APHIS reiterated its desire to conduct the site review because the visit was important to further its evaluation of FMD in Argentina.39614 Oct. 2003 8 days
11. SENASA submitted its response to APHIS' October 2003 request for additional information in connection with Argentina's request for imports of fresh (chilled or frozen) beef.397Nov. 2004 11 months
12. Prior to the scheduled visit to Northern Argentina, APHIS requested additional information from SENASA to assist in compiling data to be used in the quantitative and qualitative risk analysis of the Argentine region north of the 42nd parallel.39821 Apr. 2005 5 months
13. APHIS conducted the scheduled site visit to the Argentina territory north of the 42nd parallel.39930 May 2005- 3 Jun. 2005 1 month
14. APHIS requested additional information from SENASA in light of a strike by SENASA personnel.4004 Aug. 2005 1 month
15. SENASA sent a letter to APHIS reporting about SENASA strikes, and stating that such strikes did not affect emergency services.4015 Dec. 2005 5 months
16. Two outbreaks of "type O" FMD occurred in San Luis del Palmar, Province of CORRIENTES.4025 Feb. 2006 2 months
17. The president of SENASA notified the FMD outbreaks in San Luis del Palmar, Province of CORRIENTES to the OIE.403 SENASA enacted Resolution 35/2006 establishing a sanitary alert which covered a zone comprising the affected department i.e. San Luis del Palmar, and the seven neighbouring departments i.e.: Capital; San Cosme; Itatí; Berón de Astrada; General Paz; Mburucuya; and Empedrado.4048 Feb. 2006 3 days
18. APHIS requested information regarding the outbreak in the Province of CORRIENTES.40510 Feb. 2006 2 days
19. APHIS contacted SENASA in connection with Argentina's request for authorization of imports of fresh (chilled or frozen) beef. APHIS informed SENASA that, in order to conclude its risk analysis, APHIS considered it necessary to arrange a visit to the Province of CORRIENTES to evaluate the area affected by the FMD outbreaks. APHIS proposed to conduct the visit in August.40627 Jun. 2006 1 month
20. In response to APHIS' request for information of 10 February 2006, SENASA submitted a report to APHIS detailing the actions taken by SENASA in response to the FMD outbreaks in the Province of CORRIENTES and to ensure the preservation of the FMD‑free where vaccination is not practised status of Patagonia South.40726 Jul. 2006 1 month
21. APHIS visited the areas affected by the FMD outbreaks and performed an audit.4086-8 Sep. 2006 1.5 months
22. SENASA sent APHIS a letter detailing the information exchange with respect to Argentina's request for authorization to import fresh (chilled or frozen) beef, highlighting its concern at APHIS not being able to reopen access to beef from Argentine territory located North of Rio Negro, and asking that the outcome foreseen for Argentina's request be elucidated in a timely fashion.40919 Jul. 2010 4 years
23. APHIS responded to SENASA's letter of 19 July 2010 stating that APHIS was "currently drafting a proposed rule that would allow the importation of fresh, chilled, or frozen Argentine beef under certain conditions".41024 Sep. 2010 2 months
24. The United States stated before the SPS Committee that APHIS had "completed the risk analysis regarding the region north of the 42nd parallel and would subsequently draft a proposal to allow the importation of beef under certain conditions".41130 Jun. 2011 9 months
25. The United States reiterated before the SPS Committee that APHIS had "completed the assessment and was drafting a proposal to allow the importation of beef under certain conditions. When the assessment and rules were completed in the near future, the United States would be able to provide market access for Argentine beef".41219 Oct. 2011 3.5 months
26. Argentina requested consultations with the United States at the WTO.41330 Aug. 2012 10 months
27. The United States and Argentina met in Washington DC in the framework of the Consultations being held pursuant to Article 4 of the DSU. 28 Nov. 2012 3 months
28. Argentina requested the establishment of a panel.4146 Dec. 2012 8 days
29. The DSB established the Panel with standard terms of reference.41528 Jan. 2013 2 months
30. APHIS wrote to SENASA summarizing the issues discussed in the Consultations on 28 November 2012 between Argentina and United States officials, including APHIS' suggestion to conduct a new site visit to Northern Argentina and Patagonia. In the letter, APHIS formally requested permission from SENASA to conduct the site visit in order to progress with the review of Argentina's request.41613 Mar. 2013 1.5 months
31. SENASA agreed to the visit proposed by APHIS on 13 March 2013, but stated that the sanitary situation in Argentina had not changed.4173 Jul. 2013 3.5 months
32. APHIS replied to SENASA's 3 July 2013 letter stating that it was ready to schedule the agreed visit to Argentina as soon as possible. APHIS also stated its understanding that Argentina preferred that the site visit occur during the last week of October or the first week of November 2013.41815 Jul. 2013 10 days
33. The Panel was composed by the Director-General on 8 August 2013. 8 Aug. 2013 Add time
34. APHIS visited Argentina to conduct the site review with regard to the approval of imports of Argentine fresh (chilled or frozen) beef under certain conditions.4191st week of Nov. 2013 4 months
35. The Panel held the first substantive meeting with the parties. 28-29 Jan. 2014 3 months
36. APHIS published a risk assessment for Northern Argentina, dated April 2014, stating that the risk of introduction of FMD stemming from imports of fresh (chilled or frozen) beef from the region was "low"420, as well as a Proposed Rule to allow imports of such product under the same protocols as those applied to fresh (chilled or frozen) beef from Uruguay.42129 Aug. 2014 7 months
37. The Panel held the meeting with the parties and the experts on 2 September 2014 and the second substantive meeting with the parties on 4‑5 September 2014. 1st week of Sep. 2014 3 days

7.3.3.5.3.1 Whether the procedure incurred delays

7.121.
In order to determine whether APHIS' review of Argentina's request for authorization of imports of fresh (chilled or frozen) beef from Northern Argentina incurred a delay, we must conduct an assessment of the facts relevant to such procedure. We recall that a "delay" is a period of time lost by inaction or inability to proceed on the part of the authority carrying out the procedure.422
7.122.
The United States asserts, and Argentina does not disagree, that APHIS began its review process promptly upon receiving Argentina's request for imports of fresh (chilled or frozen) beef in November 2002.423 Indeed, the first meeting between the United States and Argentina with respect to Argentina's request took place one month after the application. At that meeting, APHIS requested SENASA to provide relevant documentation in order to initiate the risk analysis.424
7.123.
From that moment until September 2006, exchanges occurred between APHIS and SENASA. APHIS asked SENASA to provide further information concerning the FMD situation in Northern Argentina on several occasions, namely in October 2003, April 2005 and February 2006.425 APHIS also conducted two site visits to Northern Argentina in May-June 2005 and September 2006, in accordance with its approval practice.426 These follow-up requests for additional information and the two site visits were in the context of events subsequent to Argentina's initial application, including FMD outbreaks in different parts of Northern Argentina in September 2003 and February 2006427 and a labour strike at SENASA in 2005.428 The evidence on record shows that SENASA complied with APHIS' requests by submitting the additional information and by agreeing to the proposed site visits to Northern Argentina.429 On one occasion, SENASA took over one year (i.efrom October 2003 to November 2004) to answer additional questions posed by APHIS.430
7.124.
Based on the foregoing, we consider that, at this stage of the procedure, matters progressed at a reasonable pace and the only delay between the initial application and September 2006 was the 13 months between APHIS' request in October 2003 and SENASA's answer in November 2004.
7.125.
Following APHIS' site visit to Northern Argentina in September 2006, APHIS did not communicate with SENASA on the application for almost four years. In July 2010, SENASA sent a letter expressing concern regarding APHIS' silence and requesting that the "outcome foreseen for the request made by Argentina" be "elucidated in a timely time-frame."431 On 24 September 2010, APHIS replied that APHIS was "currently drafting a proposed rule that would allow the importation of fresh, chilled, or frozen Argentine beef under certain conditions".432 APHIS added that the time required to complete the procedure was necessary to ensure the thoroughness and transparency of APHIS' decision-making.433 In June and October 2011, the United States' representative at the SPS Committee sessions, responding to a specific trade concern raised by Argentina, stated that APHIS had "completed the risk analysis regarding the region north of the 42nd parallel and would subsequently draft a proposal to allow the importation of beef under certain conditions".434 Despite these statements concerning the progress on Argentina's request, APHIS did not issue a determination concerning imports of fresh (chilled or frozen) beef from Northern Argentina, nor did it request any further information from SENASA until it suggested a new site visit in November 2012 during the consultations related to these proceedings.
7.126.
In March 2013, when these dispute settlement proceedings were already under way, APHIS formally requested permission from SENASA to conduct a new site visit to Northern Argentina in order to progress with the review of Argentina's request.435 SENASA agreed that the site visit should take place in November 2013.436 APHIS conducted the site visit as scheduled. On 29 August 2014, a few days before the second substantive meeting with the parties in these dispute settlement proceedings, APHIS published a risk analysis for Northern Argentina and a Proposed Rule to allow imports of fresh (chilled or frozen) beef from the region under protocols similar to those applied to fresh (chilled or frozen) beef from Uruguay.437
7.127.
Based on the above, we consider that, during the course of APHIS' review of Argentina's request for authorization of imports of fresh (chilled or frozen) beef from Northern Argentina, there were two periods of inaction which constitute delays within the meaning of Annex C(1)(a):

a. one from October 2003 until November 2004; and

b. the other from September 2006 until March 2013. However, as indicated in paragraph 7,118 above, the Panel will not consider the period after the date of establishment of the Panel in January 2013. Thus, for the purposes of this dispute, the second delay is from September 2006 until January 2013.

7.128.
We shall now assess whether such delays are undue within the meaning of Annex C(1)(a).

7.3.3.5.3.2 Whether the delays are undue

7.130.
As noted in paragraphs 7,123‑7,124 above, the delay from October 2003 to November 2004 was attributable to SENASA not providing APHIS with the additional information requested. APHIS had made such a request in connection with the FMD outbreak in the province of Salta in late August 2003 aimed at checking that the situation in the area had stabilized, that the disease had not spread, and that the outbreak was adequately controlled or eliminated.439 Given that the information requested from SENASA in this instance was reasonable under the circumstances, this delay cannot be attributed to the United States.440
7.131.
Therefore, we are left to assess whether the delay in APHIS' review process between September 2006 and January 2013 is undue. Argentina relies on the statements from APHIS in its letters and of the United States' representative to the SPS Committee as evidence that there was no justifiable reason for the delay. The United States, for its part, argues that Argentina misconstrues the statements and it offers several justifications to explain the delay.
7.132.
Specifically, the United States points to the outbreaks in Argentina in 2003 and 2006, the labour strike at SENASA in 2005, SENASA's alleged "history of intentional concealment" of outbreaks, and the need for additional information that was not received until the November 2013 site visits. Argentina strongly disputes the United States' statements regarding the alleged history of intentional concealment and asserts that they are belied by the facts on record and APHIS' own conclusions.441
7.133.
With respect to the United States' argument that the 2003 and 2006 FMD outbreaks in Northern Argentina and the 2005 labour strike at SENASA raised concerns about Argentina's ability to prevent and control FMD442, we are persuaded that such occurrences reasonably justified APHIS' requests for additional information and the need for APHIS to conduct two separate site visits to Northern Argentina in 2005 and 2006.443 We understand that, from an epidemiological perspective, after a region has experienced an FMD outbreak, time is required before the importing Member can reliably commence an evaluation of whether the region is free of FMD. According to Article 8.5.9(c) of the Terrestrial Code, such waiting period is six months from the last outbreak where the authorities of the region affected adopted a stamping-out policy, emergency vaccination and serological surveillance.444
7.134.
APHIS itself recognized a general range of time from the last outbreak to when an evaluation is possible when it stated that it "[did] not consider a 3 to 5 year disease-free waiting period to be either necessary or required by international requirements or standards".445 Furthermore, APHIS noted in a policy document dating October 1997 that, in order to determine the level of risk presented by products originating from a given region, it takes into account a number of factors, including whether "[t]he restricted agent has not been diagnosed within the region for a period of time appropriate for that agent".446 The length of that period of time varies according to the disease and the level of risk. In order to attribute a "negligible", "slight" or "low" level of risk to a region, the period of time for FMD is "1 year".447 We recognize that the policy document is from 1997 and that there have been advances in diagnostic and serological surveillance that have led the OIE to conclude a six-month waiting period between outbreak and consideration for re-gaining "free" status is sufficient. However, we note that the document in question still constitutes the basis on which APHIS operates in evaluating the FMD conditions of applicant countries or regions. Furthermore, as will be seen in more detail below448, the United States' claims that its ALOP for FMD is higher than that of the OIE. Therefore, we take the view that while a Member could begin a review within six months of an outbreak, APHIS' 1997 policy provides useful guidance as to the maximum reasonable time for the United States to wait after an outbreak before commencing its review of whether the FMD situation in a country or region has changed.
7.135.
Read together, the above indicators suggest that APHIS should have been able to commence its assessment of the FMD situation in Northern Argentina after waiting a period ranging from six months to one year following the 2006 outbreak, that is, by February 2007 at the latest. We observe that APHIS did not make any requests for information from SENASA after the September 2006 outbreak and the process did not move forward. Therefore, we are not convinced that the above factors justify APHIS' inaction after February 2007.
7.136.
As to the United States' argument that SENASA's "history of intentional concealment and delayed reporting of outbreaks" justifies the 2007-2013 delay449, we note that despite the United States' view that Argentina intentionally concealed the full extent of its FMD outbreaks in 2000-2002450, the United States could not identify any subsequent instances in which SENASA failed to promptly notify the OIE and APHIS about FMD outbreaks in Argentina.451 Based on the evidence on record, we find that since Argentina filed its request in November 2002, SENASA has been diligent and timely in disclosing the presence of FMD outbreaks in its territory.452 APHIS itself recognized SENASA's diligence when, in 2005, it expressed "confidence" that "delayed reporting" like that in 2001 would not happen again.453 Therefore, we do not consider that the United States can validly invoke SENASA's shortcomings – which the United States itself concluded were remedied prior to February 2007 – as a justification for APHIS' inaction after that date.
7.137.
We next address Argentina's claim that Section 737 of the 2009 Omnibus Appropriations Act is a non-scientific and undue reason for the delay in the process.454 In support of its argument, Argentina draws a parallel between Section 737 and the measure found to be inconsistent by the panel in US – Poultry (China), which prohibited the Secretary of Agriculture from spending any budgetary resources towards the approval of Chinese poultry for import into the United States. The United States first argues that because Section 737 expired prior to the establishment of the Panel, it is outside the Panel's terms of reference. Substantively, the United States responds that Section 737 did not affect the Secretary of Agriculture's authority to review Argentina's requests.455
7.138.
We note that the panel in EC – Approval and Marketing of Biotech Products took into account approval procedures relating to requests that had been withdrawn at the time of its establishment, on the grounds that such procedures "constitute[d] factual evidence" which the panel was "not only entitled to take into account", but indeed "required to take into account in view of its obligation to make an objective assessment of the facts of the case".456 In our view, this is the correct approach. Regardless of whether Section 737 is considered a "measure at issue" in that the Panel could make specific findings or recommendations on its consistency with Article 8 and Annex C – a matter we turn to below – it can serve as factual evidence as to whether the delay in the processing of Argentina's application was undue. Therefore, we find it useful to examine whether Section 737 had the impact Argentina alleges before turning to address the United States' arguments that the measure cannot be a measure at issue within the Panel's terms of reference.
7.139.
Argentina claims that Section 737 is directly analogous to the legislative measure considered by the panel in US – Poultry (China). We do not agree with Argentina. Section 737 did not have the effect of completely blocking all progress on Argentina's application, as was the case for the measure at issue in US – Poultry (China). Rather, Section 737 appears to permit the Secretary of Agriculture to move forward with a review of the "domestic animal health aspects" of Argentina's requests and to provide "a report on the findings to the Committees on Appropriations of the House and Senate".457 A review of the impact of a potential entry or spread of FMD on domestic animal health is consistent with the requirements for a risk assessment set forth in the SPS Agreement. Indeed, the risk being protected against is a risk to the health of domestic animals. In particular, Annex A(4) refers to evaluating the "potential biological and economic consequences" of the entry, establishment or spread of a pest or disease, whereas Article 5.3 lists "the potential damage in terms of loss of production or sales in the event of the entry, establishment or spread of a pest or disease" and "the costs of control or eradication in the territory of the importing Member" as factors that must be taken into account in assessing the risk to animal health. Therefore, given that Section 737 appeared to permit the conduct of such an analysis, the effect of the provision does not appear, in and of itself, to amount to an undue delay in an approval process. Furthermore, the United States argued that the failure of the Secretary of Agriculture to produce such a report was not due to any hindrance of authority brought about by Section 737;according to the United States,the report was not produced because the Secretary's review of Argentina's requests had not yet been finalized.458
7.140.
Based on the evidence before us, we are not convinced that completion of the evaluation required in Section 737 caused undue delay in the APHIS approval procedures. Having reached this conclusion, we need not determine whether Section 737, considered as a measure rather than relevant evidence, is within our terms of reference.459
7.141.
We now turn to the United States' argument that APHIS did not have all the information necessary to complete its risk assessment for Northern Argentina until the site visit of November 2013.460 This argument also raises the issue of the weight to be placed on the statements in the letter from APHIS and those made to the SPS Committee of the WTO. APHIS' letter to SENASA of September 2010461 and the United States' representative's statements before the SPS Committee in June and October 2011462 suggest that APHIS had enough information to progress with its risk assessment at the time those statements were made. Indeed, APHIS stated that it was "currently drafting a proposed rule that would allow the importation of fresh, chilled, or frozen Argentine beef under certain conditions"463, while the United States' representative at the SPS Committee stated that APHIS had "completed the risk analysis regarding the region north of the 42nd parallel and would subsequently draft a proposal to allow the importation of beef under certain conditions".464
7.142.
The United States asserts that the above-mentioned statements should not be understood to suggest that APHIS was ready to finalize the process in 2010-2011.465 Accepting for the moment the United States' interpretation of such statements, this does not deprive them of all value for our purposes. It seems to us that even if the statements in question should not be construed to imply that the risk analysis was complete, they may nevertheless serve as an indication that there was no reason for the continued delay in the finalization of the procedure. The record shows that APHIS did not request SENASA to provide any additional information concerning the FMD situation in Northern Argentina following its site visit of September 2006 until March 2013. Moreover, the United States has not pointed to any specific information that APHIS was missing prior to the November 2013 visit, except for the need to "re-confirm and update" information already in its possession as the result of prior site visits.466 Read together, these facts indicate to us that APHIS had collected sufficient information concerning the FMD situation in Northern Argentina well before the November 2013 site visit took place. If that were not the case, one would expect APHIS to have communicated to SENASA to request any missing information in order to progress towards the completion of the process. It did not do so.
7.144.
Finally, we address the United States' argument that, by postponing APHIS' latest site visit to Northern Argentina until November 2013, SENASA contributed to APHIS' delay.468 We note that Argentina is not seeking to support its claim of undue delay with the period between March and November 2013, but rather only up to the date of the establishment of the Panel (28 January 2013). Therefore, whether any delay in that period is attributable to either the United States or Argentina is immaterial to the task before us.
7.145.
Based on the foregoing, we conclude that the United States did not undertake and complete the procedure to review Argentina's request for imports of fresh (chilled or frozen) beef from Northern Argentina without undue delay and has therefore acted in a manner inconsistent with Article 8 and Annex C(1)(a) of the SPS Agreement with respect to that request.

7.3.3.5.4 APHIS' review process of Argentina's request for the recognition of Patagonia as FMD‑free

7.146.
As with our findings in the previous section, we shall assess, first, whether APHIS' review process of Argentina's request for the recognition of Patagonia as FMD‑free incurred a delay. If so, we shall turn to determining whether such a delay was undue. For ease of reference, we include the events relevant to APHIS' review and the Panel proceedings in Table 2 below. We also refer to the chronology contained in Appendix 1 to this Report for further information.

Table 2: Chronology of events relating to APHIS' review of Argentina's request for the recognition of Patagonia as FMD‑free

No.EventDateInterval (approx.)
1. SENASA submitted a formal request to APHIS requesting the recognition of Patagonia as a region free of FMD.46928 Aug. 2003 -
2. APHIS contacted SENASA regarding a 1 December 2003 site visit to Patagonia.470 APHIS also requested additional information from SENASA regarding the request for regional recognition of Patagonia as FMD‑free.4716 Nov. 2003 2 months
3. APHIS, together with the Canadian Food Inspection Agency, conducted a site visit to Patagonia South and the Patagonia buffer zone consisting of Patagonia North A and B to continue its assessment of the status of FMD in the area.4721-5 Dec. 2003 1 month
4. In a follow-up letter sent to SENASA after APHIS' site visit to Patagonia of 1‑5 December 2003, APHIS informed SENASA that it would need to provide additional information to allow APHIS to proceed with the risk assessment.4732 Mar. 2004 3 months
5. SENASA responded to the 2 March 2004 letter, providing additional information concerning Patagonia in response to APHIS' request.47416 Nov. 2004 8 months
6. APHIS concluded and produced the risk analysis evaluating Patagonia South as a region free of FMD.475Jun. 2005 7 months
7. APHIS published a proposed rule in the Federal Register to change the disease status of Patagonia South to FMD‑free.476 During the ensuing 60-day period, APHIS received comments on the proposed rule from interested parties. 5 Jan. 2007 1.5 years
8. The United States Cattlemen's Association, the National Farmers Union, and American Agri-Women sent a letter to the House Committee on Agriculture with regard to the 2007 proposed rule for Patagonia South, in which they called for further discussion on the matter before APHIS finalize the process.47722 Jan. 2008 1 year
9. The Embassy of Argentina in Washington sent a letter to US Senator Jon Tester expressing the view that the Proposed Rule recognizing Patagonia South as FMD‑free should be finalized so that commercial relations between the region of Argentina and the United States could be normalized.4787 Mar. 2008 1.5 months
10. SENASA introduced Resolution 148/2008 to authorize transport of FMD‑susceptible animals into Patagonia South from Patagonia North B under additional traceability requirements, in connection with EU regulations recognizing Patagonia South, but not yet Patagonia North B, as FMD‑free where vaccination is not practised.47911 Mar. 2008 4 days
11. Several US senators urged the Administration not to adopt the final rule for the recognition of Patagonia South as FMD‑free until the rule has been reviewed by the Office of Management and Budget.48014 Mar. 2008 3 days
12. The Embassy of Argentina in Washington sent a letter to US Senator Max Baucus (insert what committee he chaired at time) expressing the view that the Proposed Rule recognizing Patagonia South as FMD‑free should be finalized so that commercial relations between the region of Argentina and the United States could be normalized.48120 Mar. 2008 6 days
13. APHIS contacted SENASA with a view to fixing the agenda for a site visit by APHIS, aimed at updating the assessment of the risk for Patagonia South in order to respond to the comments received in connection with the 2007 Proposed Rule for Patagonia South.48215 Oct. 2008 7 months
14. SENASA sent a letter to APHIS expressing displeasure with the duration of FMD assessment process and noting that, because the situation in Patagonia South had not changed, SENASA did not consider that there were sufficient grounds to accept APHIS' proposed visit schedule for 15-18 December 2008.48322 Oct. 2008 7 days
15. SENASA sent a new letter to APHIS reiterating its statements of 22 October 2008.48411 Nov. 2008 20 days
16. SENASA introduced Resolution 1282/2008 as a consequence of the EU's recognition of Patagonia North B as FMD‑free where vaccination is not practised. The resolution allowed the movement of FMD‑susceptible animals from Patagonia North B into Patagonia South for any purpose, subject to strengthened measures on transport and traceability. The Resolution did not modify the pre‑existing requirements for entry of FMD‑susceptible animals into the Patagonia region as a whole from FMD‑free zones with vaccination.48516 Dec. 2008 2 months
17. SENASA also granted approval for APHIS to visit Patagonia South in February 2009.486 In granting the site visit request, SENASA also requested that APHIS extend the mission to cover Patagonia North B because the zone was recognized by the OIE as a region free of FMD where vaccination is not practiced.487 For this purpose, SENASA updated the information concerning Patagonia with APHIS, including the data on Patagonia North B that had led to the international recognition of the zone as FMD‑free where vaccination is not practised.48817 Dec. 2008 1 day
18. APHIS conducted a site visit to Patagonia, including Patagonia South and Patagonia North B.48923-26 Feb. 2009 2 months
19. The US Congress passed the 2009 Omnibus Appropriations Act.49026 Feb. 2009 0 days
20. APHIS sent SENASA a letter stating that no additional information was currently required to proceed with APHIS' rule-making.49127 Apr. 2009 2 months
21. The 2009 Omnibus Appropriations Act expired. 30 Sep. 2009 5 months
22. SENASA sent APHIS a letter detailing the information exchange with regard to the recognition of Patagonia as FMD‑free, highlighting its concerns over the fact that all the technical stages had been concluded on a scientific basis, and stating that there only remained to be completed the administrative procedures to secure the recognition of Patagonia.49219 Jul. 2010 10 months
23. APHIS responded to SENASA's 19 July 2010 letter with respect to Argentina's application for the recognition of Patagonia as FMD‑free, stating that APHIS "had made significant progress towards recognizing the FMD‑free status of southern Patagonia". APHIS further noted that because it needs to be thorough and transparent in its deliberations, the rule-making process could take time.49313 Sep. 2010 2 months
24. Argentina presented a specific trade concern (STC) in the SPS Committee, expressing its concern that the United States failed to recognize Patagonia South as a FMD‑free, despite the OIE recognition of Patagonia South as FMD‑free where vaccination is not practised since 2002. The United States replied that APHIS "had made significant progress in recognizing the FMD‑free status of South Patagonia and that, in light of the information Argentina provided in 2009, which was used to update the 2005 risk analysis, it was able to conclude that the import of ruminants and ruminant products from this region presented a negligible risk of FMD".49430 Jun. 2011 2 years
25. Argentina raised the same STC at the 52nd Meeting of the SPS Committee. The United States reiterated that APHIS "had made significant progress in recognizing the FMD free status of South Patagonia".49519 Oct. 2011 3.5 months
26. Argentina requested consultations with the United States at the WTO.49630 Aug. 2012 10 months
27. The United States and Argentina met in Washington DC in the framework of the Consultations being held pursuant to Article 4 of the DSU. 28 Nov. 2012 3 months
28. Argentina requested the establishment of a panel.4976 Dec. 2012 8 days
29. The DSB established the Panel with standard terms of reference.49828 Jan. 2013 2 months
30. APHIS wrote to SENASA summarizing the issues discussed in the Consultations on 28 November 2012 between Argentina and United States officials, including APHIS's desire to conduct a new site visit to Northern Argentina and Patagonia. APHIS formally requested permission from SENASA to conduct the site visit in order to progress with the review of Argentina's request.49913 Mar. 2013 1.5 months
31. SENASA agreed to the visit proposed by APHIS on 13 March 2013, but stated that the sanitary situation in Argentina had not changed.5003 Jul. 2013 3.5 months
32. APHIS replied to SENASA's 3 July 2013 letter stating that it was ready to schedule the agreed visit to Argentina as soon as possible. APHIS also stated its understanding that Argentina preferred that the site visit occur during the last week of October or the first week of November 2013.50115 Jul. 2013 10 days
33. The Panel was composed by the Director-General. 8 Aug. 2013 3 weeks
34. APHIS visited Patagonia to conduct the site review with regard to the recognition of the region as FMD‑free.5021st week of Nov. 2013 4 months
35. APHIS published a Proposed Rule for recognition of the Patagonia region (comprising both Patagonia South and Patagonia North B) as FMD‑free, pursuant to an updated risk assessment completed in January 2014.50323 January 2014 2 months
36. The Panel held the first substantive meeting with the parties. 28-29 Jan. 2014 5 days
37. APHIS published a Final Rule recognizing Patagonia (comprising both Patagonia South and Patagonia North B) as FMD‑free within the meaning of 9 CFR 94.1(a)504, entering into force as from 28 October 2014. 29 Aug. 2014 7 months
38. The Panel held the meeting with the parties and the experts on 2 September 2014 and the second substantive meeting with the parties on 4-5 September 2014. 1st week of Sep. 2014 3 days
39. APHIS' Final Rule recognizing Patagonia as FMD‑free within the meaning of 9 CFR 94.1(a) entered into force. 28 Oct. 2014 2 months

7.3.3.5.4.1 Whether the procedure incurred delays

7.147.
Consistent with our approach in paragraph 7,121 above, we begin our assessment of Argentina's claim under Article 8 and Annex C(1)(a) with a determination of whether APHIS' review of Argentina's request for the recognition of Patagonia as FMD‑free incurred delays. We recall that a delay is a period of time lost by inaction or inability to proceed on the part of the authority carrying out the procedure.505
7.148.
At the outset, we note that Argentina's request for the recognition of Patagonia as FMD‑free was filed in two distinct steps. In August 2003, Argentina filed a request for recognition limited to Patagonia South (the area of Patagonia located south of the 42nd parallel).506 In December 2008, Argentina extended the scope of its original request to encompass the recognition of Patagonia North B (the area of Patagonia between the 42nd parallel and the Rio Negro).507 As discussed in further detail below, the two-step nature of Argentina's request is relevant in assessing whether and to what extent APHIS' review thereof incurred an undue delay.
7.149.
The United States asserts, and Argentina does not disagree, that APHIS began its review process promptly upon receiving Argentina's request for recognition of Patagonia South in August 2003.508 Indeed, APHIS and SENASA had a meeting on Argentina's request two months after it was filed. At that meeting, APHIS requested additional information from SENASA concerning the FMD situation in Patagonia South and requested to make a visit to the region to be conducted in December of that year.509
7.150.
Throughout the period August 2003-November 2004, exchanges took place between APHIS and SENASA. As agreed by the two agencies, APHIS conducted its site visit to Patagonia South and Patagonia North A and B together with the Canadian Food Inspection Agency in December 2003.510 Three months later, in March 2004, APHIS requested that SENASA provide additional information in order to progress on the risk analysis for Patagonia South.511 SENASA took approximately eight months, i.euntil 16 November 2004, to provide the additional information APHIS requested.512 In June 2005, i.eapproximately six months after SENASA submitted the additional information, APHIS published a risk analysis for Patagonia South, concluding that imports of FMD‑susceptible animals and animal products from the region presented a "low" risk of introduction of FMD into the United States.513
7.151.
Argentina claims that the two-year period between the filing of its request and the publication of the risk analysis for Patagonia South (2003-2005) constitutes an undue delay on the part of the United States.514 However, the evidence on the record demonstrates that throughout that period APHIS had requested additional information from SENASA, analysed that information, and conducted a site visit to Patagonia. Based on the evidence, there was a period of inaction between March and November 2004 while APHIS was awaiting SENASA's response to APHIS' request for additional information.515 Therefore, we disagree with Argentina that the whole 2003‑2005 period constitutes a delay. In our view, the only delay in the procedure during the period 2003-2005 was the eight months between March and November 2004.
7.152.
The evidence on the record does not show any further exchanges between APHIS and SENASA from the publication of the June 2005 risk analysis for Patagonia South and APHIS' publication in January 2007 of a Proposed Rule to change the disease status of Patagonia South to FMD‑free and as a consequence to permit imports.516 In Argentina's view, this one-and-a-half-year period of inactivity on APHIS' part constitutes a further undue delay in the approval procedure.517 The United States claims that this was not a period of inactivity or inability to proceed, but rather during this period APHIS was taking steps to comply with the procedural obligations established in the Regulatory Flexibility Act, Executive Order No12988, and the Paperwork Reduction Act.518 We do not discount that compliance with domestic legal obligations, such as the ones referenced by the United States, can be part of an ordinary or expected time-period to conduct an approval procedure. However, the United States did not submit the above-mentioned domestic legal instruments as evidence in these proceedings. Nor did the United States provide any evidence of specific actions APHIS took to comply with the aforementioned domestic legal obligations between June 2005 and January 2007. Therefore, in the absence of such evidence we can only conclude that there was inaction on the part of APHIS from June 2005 to January 2007 and hence a delay in the approval procedure.
7.153.
The January 2007 Proposed Rule for Patagonia South provided for a 60-day period (i.euntil 6 March 2007) for comments to be submitted by interested parties.519 During that period, APHIS received a total of 45 comments from the United States and the Argentine industries as well as from private citizens. Some of the comments expressed concerns as to whether Argentina was able to prevent and control FMD in Patagonia South and, therefore, about the risks to United States' livestock from allowing the importation of FMD‑susceptible animals and products thereof from the region.520 APHIS never finalized the approval for Patagonia South. Rather, almost two years after the publication of the 2007 Proposed Rule, in October 2008 APHIS contacted SENASA requesting a new site visit to Patagonia South.521 The United States argues that the need for a new site visit was in response to the comments received.522
7.154.
In our view, it is reasonable to expect that APHIS would need time to address the comments expressed during the 60-day period following the publication of the January 2007 Proposed Rule. However, we are not persuaded that responding to such comments would require over one and a half years (i.efrom March 2007 to October 2008). We recall that APHIS' reviews are case-specific and that there is no one particular time-frame in which comments must be analysed and acted upon. The time necessary will depend on the amount and nature of the comments. However, we note that during the course of these proceedings, APHIS published a Notice of availability of the evaluations of the FMD status of Patagonia (comprising both Patagonia South and Patagonia North B) in late January 2014.523 The period for interested parties to submit comments on that document expired on 24 March 2014.524 APHIS addressed the 33 comments received and issued a final Notice of determination on Patagonia on 29 August 2014, that is, five months after the expiration of the comment period.525 Further, in its approval processes with respect to Uruguay, Santa Catarina and Japan, it took APHIS between four and 13 months to address comments on its proposed rule and issue a final determination.526 The finalization of the proposed rule for the United Kingdom took approximately 28 months.527 We recognize that we do not have the information on the specific circumstances that led to the varying times in the above‑mentioned procedures. While not dispositive, they do indicate that, generally, a period of over one and a half years is neither ordinary nor expected.528 Moreover, the United States has not provided evidence as to what, if anything, APHIS was doing with respect to Argentina's application during this time-period. In light of the above, we conclude that there was a delay in the procedure between the end of the comment period (6 March 2007) until APHIS wrote to SENASA in October 2008.
7.155.
In December 2008, two months after APHIS requested a new site visit to Patagonia South, SENASA granted approval for the visit.529 At the same time, Argentina extended its request for recognition to Patagonia North B. In making its request, Argentina noted that the OIE had recognized Patagonia North B as FMD‑free where vaccination is not practised.530 APHIS conducted the site visit to Patagonia as a whole (comprising both Patagonia South and Patagonia North B) in February 2009.531 On 27 April 2009, APHIS sent a letter to SENASA stating that no additional information was "currently required to proceed with APHIS' rulemaking".532 The letter also established contact points for further discussions "if necessary".533 However, APHIS did not make any requests for additional information of SENASA concerning the FMD situation in Patagonia for another three years.
7.156.
After Argentina inquired into the status of the approval process in July 2010, APHIS sent SENASA a letter dated 13 September 2010 in which it stated that "APHIS had made significant progress towards recognizing the FMD‑free status of southern Patagonia".534 In June 2011, the United States' representative at the SPS Committee, responding to a specific trade concern (STC) raised by Argentina, stated that APHIS had "made significant progress in recognizing the FMD‑free status of South Patagonia and that, in light of the information Argentina provided in 2009, which was used to update the 2005 risk analysis, it was able to conclude that the import of ruminants and ruminant products from this region presented a negligible risk of FMD".535 The United States delegate reiterated this statement before the SPS Committee in October 2011.536 However, APHIS did not issue a determination concerning the recognition of Patagonia as FMD‑free, nor did it request any further information of SENASA, until after the Panel's establishment in January 2013.537
7.157.
In March 2013, when the current proceedings were already under way, APHIS formally requested SENASA to accept a new site visit to Patagonia in order to progress with the review of Argentina's request.538 SENASA agreed that the site visit should take place in November 2013.539 APHIS conducted the site visit as scheduled. On 23 January 2014, a few days before the first substantive meeting of the Panel, APHIS published a risk analysis for Patagonia in a Notice of Availability that recognized the region as FMD‑free.540 On 29 August 2014, a few days before the second substantive meeting of the Panel, APHIS published a Notice of Determination recognizing Patagonia as FMD‑free, which entered into force two months later.541
7.158.
The facts described above indicate a period of inaction on the part of APHIS between the site visit to Patagonia in February 2009 and its formal request to conduct a new site visit in March 2013. Therefore, based on the evidence on the record, we take the view that such a period constitutes a delay in the procedure. As mentioned in paragraph 7,118 above, we will not consider time-periods after the Panel's establishment. Therefore, for the purposes of Argentina's claim, the delay is from February 2009 until 28 January 2013.
7.159.
In sum, the facts outlined above indicate that, during the course of APHIS' review of Argentina's request for the recognition of Patagonia as FMD‑free, there were a number of periods of inactivity which constitute "delays" within the meaning of Annex C(1)(a). In particular, with respect to the APHIS process for Patagonia South:

a. there was a delay of eight months between March and November 2004, during which APHIS was waiting for SENASA to submit additional information;

b. there was a one-and-a-half-year delay between the issuance of APHIS' risk analysis for Patagonia South in June 2005 and the publication of the Proposed Rule in January 2007;

c. there was a delay between March 2007 – the expiration of the comment period for the January 2007 Proposed Rule for Patagonia South – and October 2008, when APHIS requested a new site visit to the region.

7.160.
With respect to APHIS' process for Patagonia as a whole (comprising both Patagonia South and Patagonia North B), there was a delay between February 2009, when APHIS conducted a site visit to the region, and January 2013, when the Panel was established. Thus, for the purpose of this dispute, the delay amounted to almost four years.
7.161.
We now turn to assess whether the above-mentioned delays in APHIS' approval process are undue within the meaning of Annex C(1)(a).

7.3.3.5.5 Whether the delays are undue

7.162.
In order to assess whether the delays in APHIS' review process outlined in the previous section are undue, we address the justifications offered by the United States to explain such delays. We recall that a delay is undue if it is "unwarranted, or otherwise excessive, disproportionate or unjustifiable".542
7.163.
We begin our analysis with the delays in APHIS' review of Argentina's original request with respect to Patagonia South.543 First, with respect to the delay between March and November 2004, we already found in paragraphs 7,150‑7,151 above that, during that period, APHIS was waiting for SENASA to submit the additional information requested.544 In turn, as explained by the United States, APHIS' request for additional information was justified by the deficiencies in SENASA's original request for Patagonia South of August 2003.545 Given that the information requested of SENASA in this instance was reasonable in the circumstances, SENASA's delay in providing such information cannot be attributed to APHIS.546 Therefore, with respect to this initial stage of the procedure, we do not find an undue delay that can be attributed to the United States.
7.164.
Second, with respect to the delay between the publication of the 2005 risk analysis and the publication of the 2007 Proposed Rule for Patagonia South, the United States once again seeks to justify the delay with reference to a variety of domestic legal obligations governing the promulgation of regulations. We have already found in paragraph 7,152 above that the United States did not provide evidence to demonstrate that there was any activity during that period necessary for APHIS to comply with the cited legal instruments. Indeed, the evidence on the record only shows inactivity with no justification. Therefore, we find that the one-and-a-half-year delay is undue within the meaning of Annex C(1)(a).
7.165.
Third, we address the delay between the expiration of the comment period for the January 2007 Proposed Rule for Patagonia South (March 2007) and APHIS' request to conduct a new site visit to the region (October 2008). The United States argues that the period in question was required for APHIS to address the 45 comments expressed by interested parties. In particular, according to the United States, such comments revealed that "the risk analysis underlying the proposed rule was missing current information and improperly relied on outdated information"547, therefore "APHIS needed additional time to update and reconfirm its conclusions".548
7.166.
We note that although the United States' asserts that it was the comments which precipitated the need for APHIS to seek additional information and reconfirm its conclusions, APHIS waited over one and a half years after the expiration of the comment period to request the new site visit to Patagonia. The United States has not offered any justification as to why this step of its review would require such a lengthy period of time. We have already found that the time it took APHIS to address the comments in question was longer than ordinarily expected.549 We also took the view that, in the circumstances of this case, the need to re-confirm and update pre‑existing information which became outdated because of APHIS' inaction does not constitute a justification for delay in the completion of a procedure.550 Therefore, we conclude that the delay between March 2007 – the expiration of the comment period for the January 2007 Proposed Rule – and October 2008 – when APHIS' requested a new site visit – is undue within the meaning of Annex C(1)(a).
7.167.
We now turn to the delay in APHIS' review of Argentina's request concerning Patagonia as a whole (i.ecomprising both Patagonia South and Patagonia North B).551 In Argentina's view, APHIS' failure to finalize the process by the time of the establishment of the Panel (28 January 2013) constitutes an undue delay in the approval procedure.552 For its part, the United States asserts that APHIS' review of the request was delayed because Argentina: (i) revised the application to include Patagonia North B553; and (ii) repeatedly revised the regulatory conditions for FMD surveillance, movement control and slaughter procedures in Patagonia.554 As a result, according to the United States, APHIS did not have all the information necessary to complete its risk assessment for Patagonia prior to its site visit of November 2013.555
7.168.
We agree with the United States that the expansion, in December 2008, of Argentina's original request to encompass both Patagonia South and Patagonia North B is relevant to our assessment of whether the portion of APHIS' review devoted to Patagonia incurred an undue delay. As to the changes in the regulatory framework for Patagonia, the United States argues that SENASA's new policy (Resolution 1282/2008) "posed potential obstacles to Argentina's ability to conform with APHIS' FMD sanitation requirements" and therefore justified APHIS' delay.556 We note that Resolution 1282/2008 modified the regime of controls between Patagonia North B and Patagonia South as part of the process of merging the two separate areas into one Patagonia region557, following the OIE's recognition of Patagonia North B as FMD‑free where vaccination is not practised – the status already enjoyed by Patagonia South at that time. Although we do not necessarily agree with the United States' characterization of the potential effects of Resolution 1282/2008<