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United States — Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina

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United States — Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina UNITED STATES — MEASURES AFFECTING THE IMPORTATION OF ANIMALS, MEAT AND OTHER ANIMAL PRODUCTS FROM ARGENTINA (WT/DS447) FIRST WRITTEN SUBMISSION OF THE UNITED STATES OF AMERICA November 5, 2013 United States – Measures Affecting First Written Submission of the United States the Importation of Animals, Meat, and Other November 5, 2013 Animal Products from Argentina (DS 447) Page i TABLE OF CONTENTS I. INTRODUCTION............................................................................................................. 1 II. PROCEDURAL HISTORY ............................................................................................. 3 III. FACTS ............................................................................................................................... 3 A. Foot and Mouth Disease is a Highly Contagious and Economically Devastating Animal Disease ................................................................................. 4 1. Biology of Foot and Mouth Disease ......................................................... 6 2. Devastating Economic and Social Effects of Foot and Mouth Disease ................................................................................................................... 10 3. National and International Control of FMD ........................................ 15 B. Argentina’s Record of FMD Exposure and Infection ..................................... 18 1. FMD Historically Endemic in Argentina .............................................. 18 2. Argentina’s Short Respite from FMD between 1995 and 1999 .......... 19 3. Argentina’s Widespread FMD Outbreaks 2000-2002 ......................... 20 4. Argentina Experiences Another FMD Outbreak in 2003 ................... 28 5. Argentina Experiences Another FMD Outbreak in 2006 ................... 28 6. Patagonia Reorganization ...................................................................... 31 C. Foot and Mouth Disease Eradication and Prevention in the United States .. 33 1. The United States Maintains a Sophisticated FMD Prevention and Response System ..................................................................................... 33 2. United States Supports FMD Control Efforts in Other Countries .... 35 D. United States System for Protection from Foot and Mouth Disease .............. 37 1. The U.S. Regulatory Approach to FMD Control ................................. 37 2. APHIS Legal and Regulatory Framework for Authorizing Import of FMD-Susceptible Animal and Animal Products .................................. 37 3. Argentina’s Recent Applications for Authorization to Import Beef and to Be Recognized as FMD-free ....................................................... 41 IV. LEGAL CLAIMS ........................................................................................................... 50 A. Measure at Issue, Relevant Disciplines, and Order of Analysis ..................... 50 1. Measure at Issue ...................................................................................... 50 2. Relevant Disciplines and Order of Analysis ......................................... 51 B. Argentina Has Not Shown that the United States Breached Article 8 and Annex C(1) of the SPS Agreement with Respect to Argentina’s Requests for United States – Measures Affecting First Written Submission of the United States the Importation of Animals, Meat, and Other November 5, 2013 Animal Products from Argentina (DS 447) Page ii The Recognition of Argentina and Patagonia as Independent FMD-free Regions ................................................................................................................. 52 1. Article 8 Does Not Apply to Determinations Under Section 92 .......... 53 2. The United States Did not Engage in Undue Delay in Evaluating the Argentina Applications ........................................................................... 55 3. Argentina has Failed to Show that the United States Acted Inconsistently with ”Undue Delay” in the Evaluation of Argentina’s Application for the Recognition of Argentina as Region Free of FMD ................................................................................................................... 57 4. Argentina has Failed To Show that the United States Acted with “undue delay” in the Evaluation of Argentina’s Application for the Recognition of Patagonia as Region Free of FMD ............................... 59 5. Argentina has Failed to Show that Section 737 of 2009 Omnibus Appropriations Act or Any Other Proposed Legislation has Resulted in an Undue Delay under Annex C (1)(a), First Clause, and Article 8 ................................................................................................................... 63 C. U.S. Measures with Respect to Argentina Are Justified Under Article 5.7 ... 66 1. Application of the APHIS System to Argentina with Respect to Fresh, Chilled, and Frozen beef was proper under Article 5.7 ...................... 66 2. The Review of Argentina’s Application with Respect to Patagonia South was Proper Under Article 5.7 ..................................................... 68 D. U.S. Actions with Respect to Argentina’s Importation of Beef Are Consistent with Articles 5.1 and 5.2 of the SPS Agreement ............................................... 69 1. The 2001 Regulations Removing Argentina’s Authorization to Export Fresh, Chilled, and Frozen Beef Is Consistent with Articles 5.1 and 5.2 ................................................................................................................... 70 2. The 2001 Regulations Are Consistent with Articles 5.1 and 5.2 with Respect to Argentina’s Request to Export Fresh, Chilled, and Frozen Beef ........................................................................................................... 72 3. The 2001 Regulations with Respect to Patagonia Are Consistent with Articles 5.1 and 5.2 .................................................................................. 73 E. U.S. Measures with Respect to Argentina’s Importation of Beef Are Consistent with Article 2.2 of the SPS Agreement ........................................... 75 1. Because U.S. Measures are Consistent with Article 5.7, They are Consistent with Article 2.2 ..................................................................... 75 2. Argentina Has Not Met its Burden of Proof to Show that the United States Is Taking Measures Inconsistent with Article 2.2..................... 75 3. U.S. Measures are Consistent with Article 2.2’s Obligation to be Applied Only to the Extent Necessary to Protect Animal Health ...... 76 4. U.S. Measures Are Based and Maintained on Scientific Principles ... 76 United States – Measures Affecting First Written Submission of the United States the Importation of Animals, Meat, and Other November 5, 2013 Animal Products from Argentina (DS 447) Page iii 5. U.S. Measures Are Consistent with Article 2.2 for Argentina’s Application Regarding Authorization for Importation of Fresh, Chilled, or Frozen Bovine Meat ............................................................. 76 F. Measures Taken by the United States Are Consistent with Article 5.4 ......... 78 1. Article 5.4 Does Not Impose Affirmative Obligations on Members ... 78 2. Measures Taken by the United States Take Into Account the Objective of Minimizing Negative Trade Effects ................................. 78 G. Measures Taken by the United States Are Consistent with Article 5.6 ......... 80 1. The U.S. Review of Argentina’s Requests for Recognition of Disease- Free Status Will Identify Terms and Conditions under which Animal and Animal Products from Argentina can Enter the United States, Consistent the SPS Agreement and OIE Approach............................. 80 2. Argentina Merely Asserts that Measures that Apply to Uruguay and Santa Catarina are Applicable to Itself ................................................ 82 3. OIE Guidelines for FMD-Free with Vaccination Status are not Applicable Because the United States ALOP is Higher ...................... 82 H. Measures Taken by the United States Are Not Inconsistent with Article 2.3 Because Argentina Is Not Being Arbitrarily or Unjustifiably Discriminated Against ................................................................................................................. 83 1. Argentina Fails to Establish That It Meets the Article 2.3 Criteria for Arbitrary or Unjustifiable Discrimination ........................................... 83 2. Argentina Fails to Establish that the APHIS Application System Is A “Disguised Restriction” .......................................................................... 88 I. U.S. Application System to Prevent FMD Is Consistent with Article 3 of the Agreement on Sanitary and Phytosanitary Measures ..................................... 88 1. The APHIS Application System is Based On International Standard and Consistent with Article 3.1 .............................................................. 88 2. The U.S. Application System Is Not Inconsistent with Article 3.3 ..... 94 J. The APHIS Application System Permits Adaptation of Measures to the Sanitary or Phytosanitary Characteristics of an Area Consistent with Article 6.1.......................................................................................................................... 95 K. The APHIS Application System Recognizes the Concepts of Pest- or Disease- free Areas Consistent with Article 6.2 ............................................................... 99 L. The United
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