Australia - Measures Affecting Importation of Salmon Report of the Panel (Continued) OIE procedures and recommendations Question 20. How are members of the FDC selected? Is membership of the FDC limited? How many, and which, OIE members are represented on the FDC? Is a quorum needed for FDC recommendations? How are members views taken into account? 6.134 Dr. Winton indicated that Members of the OIE Fish Diseases Commission were elected by formal vote of the delegates of OIE Member Countries at the annual General Session. They served 3-year terms and could be reelected. Candidates were nominated solely on the basis of their scientific expertise and were expected to be completely free from the influence of either national or commercial interests. There were currently 5 (formerly 3) elected members, listed below. Each was an internationally recognized authority in diseases of aquatic animals and all of them worked at national laboratories where they were either a senior researcher or program director. In addition, the FDC typically invited from 1-3 other participants. For example at the last FDC meeting in October 1997, Dr. R. Subasinghe, Director of the International Fish Health Programs for the FAO in Rome attended by formal agreement between FAO and OIE, and Dr. F. Berthe, research scientist from the national shellfish laboratory in Tremblade, France (IFREMER), attended by invitation of the FDC in order to provide added expertise in shellfish pathology. There were no formal procedures for voting or for establishment of a quorum. In the years he had been a member, all elected members attended every meeting. Decisions were reached by consensus of the members after examination of scientific evidence. The list of Members of the OIE Fish Diseases Commission at the 29 September-1 October 1997 meeting was the following: Prof. T. Hästein (President) Superintending Veterinary Officer in Fish Diseases Central Veterinary Laboratory Norway Dr. C. Michel (Vice President) Laboratoire de Virologie et d'Immunologie moléculaires Centre de Recherches de Jouy-en-Josas France Prof. B.J. Hill (Secretary General) Centre for Environment, Fisheries and Aquaculture Science (CEFAS) United Kingdom Dr. J.R. Winton Research Team Leader Western Fisheries Research Center United States Dr. K. Nakajima Director of Pathogen Division Fish Pathology Department National Research Institute of Agriculture - Fisheries Agency Japan Question 21. Australia states that detailed minutes are not kept of meetings of the FDC where the categorization of measures to be applied for a particular disease are discussed. Does the FDC produce summary reports of these meetings? Are the FDC recommendations on disease guidelines based on scientific evaluations or assessments? What is the scientific content of FDC reports/records? What processes are under way in regard to the categorization or classification of fish diseases? 6.135 Dr. Winton replied that while detailed minutes regarding each decision were not kept, summary minutes of each meeting were prepared and distributed to the delegates from each OIE Member Country by mail. A synopsis of the activities of the FDC was also presented orally by the President of the FDC to delegates at the OIE General Session for approval. Due to a lack of any formal method for evaluation of disease risk, disease assessments were based on knowledge of the peer-reviewed literature or experience of the members of the FDC (which was quite extensive due to the large network of colleagues and the frequent contacts needed to prepare the OIE FDC annual report on the epidemiological situation for aquatic animal diseases worldwide). The scientific content of the FDC epidemiological report was high because information was gleaned from the peer-reviewed literature or from direct reports provided by fish disease experts and reference laboratories around the world who submitted information on the aquatic animal disease situation in their area. The annual epidemiological report and report of the meeting of the Fish Diseases Commission were occasionally cited. 6.136 There was no formal process for categorization of fish diseases and, in fact, there were no formal mechanisms for categorization of other animal diseases and only limited examples existed for human diseases. Development of such methods was a task for one of the Specialist Commissions of the OIE which produced an early draft that apparently failed to gain approval from the delegates of Member Countries. If approved for other animals, the FDC would attempt to adapt it to diseases of aquatic animals, but to date, efforts to construct a method that worked well in all cases had remained elusive. Recently, Australia provided a draft of a proposed mechanism for categorization of fish diseases. It was discussed at the most recent meeting of the FDC. While it seemed to perform reasonably well for some of the notifiable diseases, other diseases of aquatic animals either lacked sufficient information or differed too greatly in their worldwide distribution, host range, or severity to allow a single method to be applied globally. Question 22. Which of the 24 disease agents listed in the 1996 Final Report have been considered by the OIE and what were the conclusions for each? Which of the 24 diseases were considered but had no recommendation? (For a list of the 24 diseases of concern, see Australia's response to Question 1 of 7 October.) Is this documented in FDC/OIE records? When no recommendation is made, does it mean that after consideration the disease was found not to be of serious epidemiological or economic concern? 6.137 Dr. Winton stated that virtually all the 24 listed diseases and several others had, at one time or another, been considered by the FDC. In general, those diseases having worldwide distribution, limited impact, or which were readily controllable by drugs, vaccines or management strategies had received less emphasis. Typically, the FDC placed the greatest emphasis on uncontrollable diseases of proven etiology having a limited geographic distribution and for which robust diagnostic methods were available. This information was gleaned from the scientific literature and personal knowledge of the FDC members. Detailed records of the factors involved in each decision were not available. A lack of listing as notifiable did not mean the FDC considered the disease to be of low priority. It might be, for example, that a new and very severe disease lacked standard diagnostic methods and could not be listed as no adequate inspection methods existed. Question 23. To what extent does the FDC factor take into consideration whether a disease is widespread in concluding whether diseases should be reported or whether guidelines should be established? Does the FDC consider the impact on trade when categorizing diseases or in developing guidelines. 6.138 Dr. Winton responded that distribution of diseases was very important in determining categorization as indicated above. The impact on trade was not, per se, a separate factor, but was included in the concept of the level of damage that could be expected if the disease were introduced. If a disease was uncontrollable, whether in wild fish or commercial fish, the FDC tended to rate it as having more effect. Question 24. Does an OIE recommendation stating that dead fish be eviscerated before transit mean that OIE considers that the eviscerated product is sufficiently "safe" in terms of the specific fish disease under consideration? Do the OIE recommendations for the "Other Significant Diseases" of concern in this dispute, which only deal with uneviscerated fish, imply that the OIE considered eviscerated fish sufficiently "safe" in terms of the specific fish disease under consideration? Are such recommendations based on scientific principles? Please clarify what you mean by the term "safe" in your response. 6.139 Dr. Burmaster recommend that the WTO and the parties avoid the word "safe" because most people understand the word to imply a condition of "zero risk". He believed that conditions of "zero risk" never occurred in the world. Every plan or proposal, including the "do nothing" alternative, had (i) non-zero probabilities of adverse consequences (broadly called the "risks" of the plan or proposal) and, simultaneously, (ii) non-zero probabilities of favourable consequences (broadly called the "benefits" of the plan or proposal). Each possible plan or proposal had both risks and benefits. No single plan or proposal had just risks; no single plan or proposal had just benefits. 6.140 In some situations, there were only two possible plans or proposals, which could be called "Plan Yes" and "Plan No". Each of these choices had risks and benefits. In other situations, there might be more than two competing plans or proposals, perhaps called Plan A, Plan B, ... , and the "Do Nothing" Plan. Each of these choices had risks and benefits. The risks and benefits of the competing, alternative plans or proposals might be measured in a variety of units, including economic or monetary units. 6.141 In a first step sometimes called "risk assessment", scientists, engineers, statisticians, and other professionals estimated the risks and benefits associated with each of the competing, alternative plans or proposals. 6.142 In a second step sometimes called "risk communication", the risk assessors conveyed their findings, complete with descriptions of the variabilities and the uncertainties in their findings, to the risk managers. 6.143 Then, in a third step sometimes called "risk management", government officials (including, possibly, judges and juries) and/or other groups of citizens chose the option from among the competing, alternative plans and proposals that had the most attractive combination of risks and benefits. Since all of the options had both risks and benefits, none could be called "safe". 6.144 Dr. Winton replied that the FDC had considered this point carefully and was unanimous in the opinion that evisceration of fin fish (e.g. salmonids in this case) provided a very high level of safety against transmission of disease and that none of the notifiable or other significant diseases were likely to be transported with such products. Thus, the FDC had judged that eviscerated products fell outside the concern of the FDC. In fact, a paragraph in the first edition of the Aquatic Animal Code (Article 1.5.5.2, paragraph 3) was specifically deleted in the current edition to clarify this point because the former language provided an option for countries to require inspections of any fish products (even eviscerated fish) that were, in the opinion of the importing country capable of introducing a disease of concern. Members of the FDC had reviewed the scientific evidence and were not aware of a known expansion of range for a fish pathogen due to the movement of eviscerated fish; conversely, there were many cases of disease transmission associated with shipment of infected live fish, live eggs, or even uneviscerated fish used to feed other aquatic animals that were documented in the scientific literature. Question 25. To what extent do the OIE recommendations take into account the differing health situations or potential vulnerabilities of importing member governments? 6.145 Dr. Winton observed that the differing health conditions in various member countries (both exporting and importing) were a concern; however, it was impractical to have different recommendations for each country. This was why the FDC had tried to set minimum standards that could be applied worldwide, but encouraged countries to engage in bilateral negotiations where there were differences of opinion regarding quality of fish health services, presence of other pathogens of concern, etc. This flexibility, however, extended only to live fish, live gametes, and uneviscerated fish. As stated above, the FDC currently regarded eviscerated fish to represent a minimal risk that did not warrant restriction of trade. Question 26. Could application of OIE guidelines by an importing country be considered to provide some sense of "safety" with regard to the particular fish disease addressed in the guideline (please clarify what you mean by the term "safe" in your response)? What is the "level of risk" implicit in OIE recommendations? Is this a quantifiable risk level (i.e., one in a million chance that ...) or can it be described in other terms (i.e., "negligible", "unmeasurable", "highly unlikely", etc.)? Is this (implicit) level of risk the same for all OIE recommendations regarding fish diseases? 6.146 Dr. Burmaster stated that he did not know the OIE's or FDC's policies and procedures with regard to this question, but terms such as "negligible", "unmeasurable", "highly unlikely", etc. often caused great confusion in risk assessment, risk communication, and risk management. These words had no common meaning; different people using the same word could and did have entirely different meanings in mind when using such terms. 6.147 For example, he noted that Professor M. Granger Morgan recently reported his findings from an expert elicitation of senior scientists serving on the Science Advisory Board (SAB) of the US Environmental Protection Agency (Morgan, 1997; see also: Morgan & Henrion, 1990; and Cooke, 1991). In this paper, Morgan worked with 14 members of one of the US EPA's SAB panels - mostly full professors of science or engineering at major universities - to quantify each individual's definition of three phrases: "likely", "something between likely and not likely", and "not likely". Morgan found that: - some of the 14 SAB members use the word "likely" to mean the probability range from 80 per cent to 100 per cent, while other SAB members use the same word to mean the probability range from 0.1 per cent to 100 per cent chance of occurring; and - some of the 14 SAB members use the words "not likely" to mean the probability range from 0 per cent to 10 per cent, while other SAB members use the same phrase to mean the probability range from 0 per cent to 0.001 per cent chance of occurring; and - all of the 14 SAB members identified a probability range to describe "something between likely and not likely". For one of the SAB members, this intermediate condition had a wide range, 0.0003 < probability < 0.8, showing that the terms "likely" and "not likely" are not logical complements of each other as one might expect. Professor Morgan concluded, and Dr. Burmaster agreed, that these words had such large differences in meanings - even among senior scientists - that the words created more misunderstanding than they did enlightenment. When a lay person heard these words spoken by a full professor from a major university, what conclusion should he or she draw? 6.148 Dr. Winton believed the OIE guidelines, if properly applied by competent personnel, represented a very significant level of safety against importation of the listed diseases. He knew of no procedures that would offer improvements in safety sufficient to justify the added expense or effort. He was not aware of any examples of importation of disease in groups of live fish or eggs nor in uneviscerated fish when imported in accordance with these or similar (US, Canadian, EU) procedures, while there were many cases where fish diseases had been imported through movement of both live and uneviscerated fish in the absence of these methods. Question 27. What are the criteria used by OIE to decide whether or not a particular disease/disease agent should be included in the Code? Are OIE member governments permitted or expected to request consideration by the OIE of fish diseases which they have identified as being of concern? 6.149 Dr. Winton responded that the criteria are stated in the Aquatic Animal Health Code. These were: proven etiology, limited geographic distribution, untreatable, and of severe impact. Member countries were encouraged and expected to review the Code and Manual and to propose the addition or deletion of aquatic animal diseases or to suggest modifications in wording, diagnostic methods, etc. based upon scientific evidence. In fact, several countries (including both Canada and Australia) had been rather diligent in doing so on a regular basis. The FDC had both added and deleted diseases based upon scientifically-constructed arguments from several member countries. In some cases, the FDC had received conflicting opinions from countries (some wanting to add diseases and others wishing to delete the same diseases). In these cases, the scientific evidence and opinions of the members of the FDC were used. Question 28. Are OIE guidelines primarily directed at eliminating or reducing disease transmission? Do they also address the spread or management of diseases? Are some diseases considered sufficiently capable of being managed so as not to warrant controls on transmission in all circumstances? 6.150 Dr. Winton indicated that ultimately, the OIE guidelines sought to prevent international shipment of disease agents. Because there could be no absolute guarantee that transmission would not occur unless no trade were allowed, the guidelines were, in fact, designed to reduce the risk to sufficiently low levels that international trade could proceed in a safe manner. It was up to the member countries to control or restrict the distribution of diseases within their country and to maintain information about this status for the OIE. Several diseases of aquatic animals could be adequately managed and were thus not included on the OIE list. These diseases could be subjects for bilateral negotiations if they could be shown to be of legitimate concern to the importing country and trade were anticipated in live or uneviscerated fish. Question 29. Have, from a technical/scientific point of view, the risk assessment techniques and guidelines contained in Section 1.4 of the OIE Code been taken into account in Australia's 1996 Final Report? Do these OIE techniques and guidelines impose a separate risk assessment for each individual disease of concern to the country imposing the sanitary measure and for each sanitary measure that country decides to consider? Alternatively, do these OIE techniques and guidelines impose the necessity to assess within a risk assessment, the likelihood of establishment and consequences of each disease as well as the effects of each sanitary measure on the likelihood and consequences of disease establishment? When a country finally chooses one of these options, do the OIE techniques and guidelines on risk assessment require that country to justify or explain why that particular option has been preferred, i.e. does that country need to establish a causal link between the option chosen and the reduction of risks allegedly identified in its risk assessment? Do the OIE techniques and guidelines require a country to quantify (i.e. to state the probability of), or use expressions which qualify, the risk which allegedly justifies its sanitary measure? 6.151 Dr. Wooldridge replied that Section 1.4 of the OIE Code was at present undergoing a re-writing process in order to update, expand upon, and clarify the guidelines in the code. The basic premise was that the guidelines for import risk analysis and assessment should reflect the best methodology available. 6.152 The version currently in use stated in the Introduction that: "Import risk analysis is preferable to a zero-risk approach because it provides a more objective decision" and the section entitled "Guidelines for Risk Assessment" focused on the probability of disease agent entry and exposure rather than just the relevant possibilities. In addition it advised that "Because of the multiplicity of disease agents it may be necessary to carry out multiple risk estimates for any commodity considered for importation", and "If information on the probability of the presence or survival of a particular agent following application of a risk reduction option is not available, documented experience could be an alternative source of information". All of these basic guidelines were still valid. The OIE Code did require an evaluation of probability (either qualitatively or quantitatively) rather than merely possibility of a given outcome or consequence even if, given current knowledge levels, the confidence limits on that probability are wide. 6.153 The failure to consider the probability of the various outcomes in the 1996 Final Report rather than just their possibility meant that, in her opinion, the guidelines given in Section 1.4 of the OIE Code had not been properly taken into account. 6.154 Whether one considered that a separate risk assessment was undertaken for each disease, or whether within a single risk assessment each disease was considered separately was, in Dr. Wooldridge's view, merely a case of semantics; the OIE guidelines did not impose either of the suggested alternatives. The fact was that, in considering any particular product for import, and in undertaking a risk assessment for that product, each potential disease hazard identified had to be separately assessed. The potential consequences might be different for each disease. The effect of any particular sanitary measure would affect the pathway from hazard to outcome for each disease, and might affect it differently for different diseases. Thus the initial assessments, and any re-assessments considering the application of any risk reduction measures would need to consider each disease separately. Performance of the necessary number of individual assessment procedures for any particular product was part of the full risk analysis process and depended upon the commodity. 6.155 Dr. Wooldridge stated that, in her opinion, once a particular set of sanitary measures had been chosen by a particular country, transparency in the rationale for that choice was required to demonstrate that there was a reasonable basis in the case in question for expecting that the risk reduction measure would have the desired effect. 6.156 Dr. Winton noted that the risk assessment guidelines of Australia or New Zealand had been read with interest by members of the FDC, but had not been formally taken into account. He believed the FDC would support the concept of individual risk assessment for each listed disease because important epidemiological features (presence of susceptible hosts, temperatures, etc.) would vary with each country. That was why the notifiable disease list was relatively short. Those diseases considered notifiable were ones that almost everyone could agree upon would be very harmful to the importing country if it were presently free of them. Other aquatic animal diseases could be added by bilateral agreement if the importing country could make a good case based upon its unique situation. The FDC did not anticipate this would be done for eviscerated or processed fish products destined for human consumption unless a human pathogen was involved. Question 30. Australia seems to contend that a separate risk analysis may be necessary for each aquatic animal or animal product. What are the reasons behind the OIE's adoption of recommendations on a disease-by-disease basis (not on a product-by-product basis)? 6.157 Dr. Winton replied that the notifiable diseases in the OIE Code probably did not need a case-by-case analysis as this list represented the most significant diseases of aquatic animals and virtually all cases of movement of infected live aquatic animals or uneviscerated fish were judged to present risk. In the case of other diseases of concern, bilateral agreements between countries regarding live fish, live eggs, or uneviscerated fish should take into account the volume of trade, anticipated use of the product, presence of different strains of the pathogen, etc. that might require a product-by-product or case-by-case analysis. VII. INTERIM REVIEW 192 7.1 On 7 April 1997, Canada and Australia requested the Panel to review, in accordance with Article 15.2 of the DSU, precise aspects of the interim report that had been issued to the parties on 26 March 1997. Australia also requested the Panel to hold a further meeting with the parties. We met with the parties on 21 April 1998. 7.2 Following comments by Canada and Australia on the descriptive part of our report, we modified paragraphs 2.8, 2.27, 2.28, 4.4, 4.22, 4.26, 4.51, 4.56-4.64, 4.66, 4.71 and 4.175. We considered that several of the additions sought by Australia were already addressed, particularly in paragraphs 4.29, 4.30 and 4.35. 7.3 Australia requested a "whole of report review" of the interim report. In so doing, it referred to Article 11 of the DSU setting out the function of a panel and requiring that it "should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements". Australia argued that a large part of the legal reasoning of the interim report was not based on an objective assessment of the matter before the Panel and submitted that the interim report contained a number of factual inaccuracies and assertions not supported by evidence before the Panel. At the interim review meeting, Canada objected to Australia's request for "a whole of report review". Canada referred to Article 15.2 of the DSU which provides an opportunity for parties to request the panel to "review precise aspects of the interim report". According to Canada, it is not open to the Panel to consider anything other than comments dealing with "precise aspects" of the interim report. We agree with Canada and have therefore only reviewed our interim report in light of the comments made by the parties which relate to "precise aspects" of the interim report. 7.4 Australia submitted a series of comments on the definition of the measure at issue and the product coverage of the dispute as set out in the interim report. Australia argued that the 1988 Conditions - which, according to Australia, are only guidelines and not comprehensive - only apply to products imported in heat-treated form and have no application to fresh, chilled and frozen product; that substantial quantities of commercially canned salmon are imported into Australia and that these imports are not covered by the 1988 Conditions; that the Panel re-interpreted its terms of reference and was inconsistent in its definition of the measure at issue; and that heat-treated and fresh, chilled or frozen salmon are not the same products. We adopted some of Australia's arguments and clarified our rejection of others. We accordingly redefined and specified both the Australian measures and the salmon products at issue and ensured a consistent approach to the measure and products in dispute. These modifications are reflected in paragraphs 8.7-8.21, 8.24, 8.29, 8.95-8.101, 8.167-8.169, 8.173-8.179 and 8.182 and in the deletion of paragraph 8.23 in the interim report. 7.5 Australia provided factual clarifications as to the status of several reports and studies we referred to in our report. In response, we made modifications to paragraphs 8.130, 8.132 and 8.136. We recall, in particular, that for purposes of our examination, the scientific and technical content of these reports and studies is relevant, not their administrative status (i.e., whether they are official government reports or not). 7.6 Following Australia's more detailed objections to take into account evidence submitted by Canada after the 7 October 1997 deadline we imposed, we modified paragraph 8. and added paragraph 8.5. 7.7 Canada requested us to review our finding in paragraph 8. that steelhead/rainbow trout falls outside our terms of reference because, Canada submitted, the measure subject to the terms of reference applies to all salmonids, not only to salmon. Canada further indicated that some debate exists as to whether steelhead/rainbow trout is a salmon or only a salmonid and that practice in North America considers it to be a salmon. We recall that in paragraph 8. we stated that "steelhead/rainbow trout ... is - according to the experts advising the Panel on this issue - not a "salmon" species but only part of the wider "salmonid" family". We also stated that "the Panel request, which defines our terms of reference, only refers to "salmon", not to the wider category of "salmonid" " and thus found that "steelhead/rainbow trout falls outside our terms of reference". In our view Canada did not bring forward evidence which overrides the general validity of the scientific opinions we received from the experts advising the Panel. Nor do we consider that the measure at issue in this dispute - which is, according to the Panel request, only before us in so far as it applies to a specific category of "salmon" - should be broadened in product coverage to all "salmonids" because the measure referred to in the Panel request in principle applies to all salmonids. In the Panel request Canada not only limited the scope of this dispute to a specific measure, but also to specific products (a category of "salmon"). We therefore did not incorporate Canada's suggested change to paragraph 8.20. In response to a comment by Australia that the genus Oncorhynchus is but one genus in the family Salmonidae, we rephrased paragraph 8.20. 7.8 Australia claimed that paragraph 8.22 is an inaccurate rendition of the situation. Australia submits that it should have been given the opportunity to rebut the "fundamental changes" introduced by Canada through a formal written submission, not through a written comment limited to certain matters. We confirm that paragraph 8.22 is an accurate reflection of what happened and what Australia agreed upon. Whether the additional opportunity we granted to the parties to submit arguments resulted in a formal written submission or a written comment is in our view irrelevant. 7.9 Both Canada and Australia provided comments on paragraphs 8.34 to 8.37 of our findings relating to the question of which definition of "sanitary measure" (as provided in paragraphs 1(a) and (b) of Annex A to the SPS Agreement) applies to the measure at issue in this dispute. We redrafted these paragraphs to accommodate most of the parties' concerns. However, with respect to Canada's argument that the definition in paragraph 1(b) of Annex A does not apply to this dispute, we recall that we stated that "both definitions of a "sanitary measure" invoked by Australia might be applicable to the measure in dispute", without deciding whether they are. We only found that (1) the definition in paragraph 1(a) covers the measure at issue and (2) even in the event the definition in paragraph 1(b) would also cover to the measure at issue, "the objectives for which that measure is being applied are more appropriately covered by the definition in paragraph 1(a)". The four elements referred to in paragraphs 8.35 and 8.36 indicate the validity of the last statement. They are not, as submitted by Canada, "reasons ... as to why paragraph 1(b) does not apply in this case". On that basis, we maintain our finding that "in the specific circumstances of this case we need to examine this measure as a [sanitary] measure ... in the sense of paragraph 1(a)". 7.10 With respect to paragraph 8.46, Australia stated that the OIE Code does not set adequate international guidelines since it is under substantial revision, not representative of global conditions, not grounded on a scientific basis and the result of nontransparent decision-making. Canada responded that the OIE Code is a "finalised document" adopted in 1995 and that the fact that it has been revised in 1997 does not make the guidelines it contains any less legitimate, but to the contrary ensures that these guidelines reflect advances in scientific knowledge. According to Canada, it is disingenious for Australia as an active participant in the OIE to suggest that the OIE process ignores southern hemisphere concerns or lacks transparency. To the extent we refer to the OIE Code in our report, we recall that the SPS Agreement (paragraph 3(b) of Annex A) explicitly directs us to the OIE and the standards, guidelines and recommendations it develops. Article 5.1 also refers us to "risk assessment techniques developed by the relevant international organizations". The fact that the OIE Code is subject to revision or the way it has been adopted in our view does not change its validity for our purposes. 7.11 On several occasions Australia referred to Article 5.3, which it invoked for the first time at the interim review stage. It submitted that the Panel "ignored the right of WTO Members to take into account the factors referred to in Article 5.3". When addressing this provision in paragraph 8.50 we noted the following: "Canada does not challenge the measure at issue under Article 5.3 (elaborating on the "relevant economic factors" to be taken into account in a risk assessment) nor do we see any reason to further examine this provision". Indeed, Article 5.3 is a provision imposing an obligation on Australia to take into account certain economic factors in assessing risk. It is, therefore, a provision - we would expect - to be invoked by Canada. However, by not addressing this provision we do by no means ignore the right of Australia to take into account these factors. The definition of risk assessment we applied, for example, refers to "economic consequences" and we have addressed such consequences consistently in, e.g., paragraphs 8.72 and following and 8.121 and following. 7.12 With respect to paragraph 8.60, Canada submitted that the Panel should not have limited its findings under Articles 5.5 and 5.6 of the SPS Agreement to adult, wild, ocean-caught Pacific salmon. Canada argued that we thus make a distinction "not among claims but among categories of products covered by the same claims". For Canada, the Appellate Body Report on United States - Measures Affecting Imports of Woven Wool Shirts and Blouses - to which we refer in support of the principle of judicial economy - only allows Panels to dispense with addressing only particular claims. We changed paragraphs 8.60, 8.102 and 8.104 to clarify some of the concerns raised by Canada but maintained our position in applying the principle of judicial economy with respect to the salmon products at issue other than those from adult, wild, ocean-caught Pacific salmon for our examination under Articles 5.5 and 5.6. We recall that we found an inconsistency with Article 5.1 of the SPS Agreement with respect to all salmon products at issue (including those other than from adult, wild, ocean-caught Pacific salmon). In principle we might thus have stopped our examination there. However, we considered it appropriate to also address in the alternative (i.e., in case we were to have found that the measure at issue is consistent with Article 5.1) Articles 5.5 and 5.6 but limited our examination under these provisions to the salmon products at issue specifically addressed by the Australian risk assessment, i.e., those from adult, wild, ocean-caught Pacific salmon. Whether one considers this limitation to imply a distinction between claims or a distinction between categories of products covered by one and the same claim does not in our view preclude us from adhering to the prudential dictates of judicial economy as we did in this dispute. 7.13 Australia referred to, inter alia, paragraphs 8.68 and following and argued that they do not address differences between additives, contaminants or toxins on the one hand (for which only the definition in paragraph 1(b) of Annex A to the SPS Agreement applies) and naturally occurring diseases on the other hand (for which several definitions in paragraph 1 of Annex A might apply). We consider that this issue is sufficiently covered in paragraphs 8.34 and following and paragraphs 8.68 and following. 7.14 With respect to paragraph 8.96, Australia submitted - for the first time during our proceedings - that the heat treatment requirements it currently imposes are based on a risk assessment, reflecting the scientific knowledge of the 1980s, in accordance with assessments and practices that predate the entry into force of the SPS Agreement. However, Australia never provided us any such risk assessment. We therefore decided not to change that part of our report. 7.15 With respect to paragraph 8.107, Canada - for the first time in this dispute - invoked paragraph 3(c) of Annex B to the SPS Agreement (referred to in Article 7 of that Agreement) in support of its claim under Article 5.5 that there rests an obligation on Australia to identify or quantify its appropriate level of protection. We note that claims under Article 7 - which is not mentioned in the Panel request setting out our terms of reference - fall outside our mandate. Moreover, even in so far as paragraph 3(c) of Annex B is part of the context in which the wording of Article 5.5 should be read, we do not consider that it imposes a substantive obligation on Members to identify or quantify their appropriate level of protection. In our view, paragraph 3(c) of Annex B imposes a mainly procedural obligation to provide "answers to all reasonable questions from all interested Members" as well as "relevant documents" regarding "the determination of the appropriate level of sanitary protection". We therefore kept our position in paragraph 8.107 unchanged. We did rephrase part of that paragraph to avoid some further misunderstandings hinted at by Canada. 7.16 Canada further commented on paragraphs 8.127 and 8.128. We took this comment into account and accordingly made some changes in paragraphs 8.120, 8.127 and footnote 335 to clarify that Canada not only forwarded the four comparisons we further examined under Article 5.5 but also referred to others. 7.17 We incorporated changes suggested by Canada in paragraph 8.144 specifying that the arguments contained in that paragraph predate the circulation of the Appellate Body Report on EC - Hormones. 7.18 In the context of paragraph 8.154, Australia submitted that our legal reasoning and reference to the difference in conclusions reached by the 1995 Draft Report and the 1996 Final Report will discourage Members from issuing draft reports for domestic public comment and for comments from other Members. We recall, however, that in our view risk communication is an important aspect of a risk analysis. Nowhere should our report be interpreted as discouraging risk communication. All we refer to in this respect is (as stated in paragraph 8.154) that Australia did not explain why the risk communication exercise - conducted between the two reports - brought about the change in recommendations between the 1995 Draft Report and the 1996 Final Report. We accept, of course, that changes are made between draft reports sent out for public comment and final reports. However, one may reasonably expect that substantial changes in the recommendations contained in these reports can be explained and justified in terms of Members' commitments under the WTO agreements. 7.19 With respect to paragraph 8.185, Canada requested the Panel to also find a violation of Article XI of GATT 1994 since we "already made the findings necessary to support" such finding. Even if this were the case, in our view a finding that the measure at issue also violates Article XI of GATT 1994 would not contribute to the resolution of the matter at issue in this dispute nor, in terms of Article 11 of the DSU "assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements". Indeed, if we were to find that Article XI of GATT 1994 is violated, we would not be able to stop our examination there. The issue would then arise whether such violation could not be justified under Article XX of GATT 1994 which, in turn, would lead us to the SPS Agreement under which we already found inconsistencies. We therefore maintained our position of applying the principle of judicial economy in this respect. 7.20 The comments made by Canada on paragraphs 8.73, 8.74, 8.75, 8.80, 8.105 and 8.107 are explicitly addressed or have been incorporated in these paragraphs. Canada also provided some technical corrections - to which Australia did not object - which we took into account in finalizing our report. These dealt in particular with the technical distinction to be made between a "disease" and a "disease agent", a distinction to which, in this report, no substantial legal consequence is attached. 7.21 The comments made by Australia on paragraphs 8.30, 8.53, 8.54, 8.55, 8.57, 8.58, 8.67, 8.81, 8.83, 8.90, 8.98, 8.106, 8.118, 8.128, 8.129, 8.140, 8.145, 8.147, 8.148 and 8.163 are explicitly addressed or have been incorporated in these paragraphs. We also modified paragraphs 8.72, 8.93, 8.107, 8.121, 8.126, 8.137, 8.139, 8.149-8.156, 8.171 and 8.180; added paragraphs 8.40 and 8.135; and deleted paragraphs 8.98, 8.117 and 8.152 in the interim report, to accommodate or respond to some of Australia's concerns. To continue with Australia - Measures Affecting Importation of Salmon: Chapter VIII. Findings 192 According to Article 15.3 of the DSU, "the findings of the final report shall include a discussion of the arguments made at the interim review stage". The following section entitled "Interim Review" is therefore part of the findings of our report.

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