Australia - Measures Affecting Importation of Salmon Report of the Panel (Continued) VIII. FINDINGS A. CLAIMS OF THE PARTIES 8.1 Canada claims that certain Australian quarantine measures which, it alleges, effectively ban the importation of fresh, chilled and frozen salmon, are inconsistent with Article XI of GATT 1994 and Articles 2, 3 and 5 of the SPS Agreement. In the alternative, Canada claims that the Australian measures nullify or impair benefits accruing to it under the WTO Agreement within the meaning of Article XXIII:1(b) of GATT 1994. Australia rejects these claims and submits that its measures applying to fresh, chilled and frozen salmon are fully consistent with Australia's rights and obligations under both the SPS Agreement and GATT 1994. B. ORGANIZATIONAL ISSUES 8.2 At our first substantive meeting we decided to seek advice from individual scientific experts in accordance with Article 13 of the DSU and Article 11.2 of the SPS Agreement. The procedures we adopted for our consultation with the experts advising the Panel are set out in paragraphs 6.1-6.6. We first solicited advice from the experts advising the Panel on a series of scientific and technical questions. An overview of the experts' written answers to these questions can be found in paragraphs 6.7-6.157. The parties commented extensively on the experts' answers. We then held a meeting with the parties and the scientific experts advising the Panel to allow the experts to express their views orally and to enable both the Panel and the parties to ask additional questions. The verbatim transcript of this meeting is attached to our report as Annex 2 (and hereafter referred to as "transcript"). The meeting with experts advising the Panel took place the day before our second substantive meeting in order to allow the parties to incorporate - in their rebuttal statements - the comments and conclusions they might draw from the scientific evidence gathered by the Panel. On request by the parties, we delayed our second substantive meeting - and the meeting with experts advising the Panel - to 4 and 5 February 1998 to enable the parties to make their rebuttal statements in light of the Appellate Body Report on European Communities - Measures Concerning Meat and Meat Products (Hormones) (hereafter referred to as "EC - Hormones"). 8.3 To allow the experts advising the Panel to take into account all material evidence before the Panel when answering our questions, we requested the parties - at the end of our first substantive meeting - to submit any additional evidence they might have together with their rebuttal submission which was due on 7 October 1997. However, we also made clear that the parties would still be given the opportunity to comment on the experts' answers, both in writing until 18 December 1997 and at the meeting with the experts advising the Panel. 8.4 At our second substantive meeting, Australia requested us to exclude Annex K submitted by Canada as part of its comments on the experts' written answers, hereafter referred to as the "Vose Report"193, as well as Exhibit C-14 annexed by Canada to the oral statement it made at the second substantive meeting held after the meeting with experts advising the Panel. 194 Australia argues that for due process reasons documentary evidence needs to be provided at the earliest stage of the panel process and that both documents have been submitted after the 7 October 1997 deadline. Both the Vose Report and Exhibit C-14 were submitted after the 7 October 1997 deadline we imposed. Even though Canada transmitted the Vose Report before our meeting with the experts advising the Panel as an annex to its comments on the experts' written answers, it is unclear to us whether the Vose Report - given its complexity and length (it allegedly constitutes a complete alternative risk assessment commissioned by Canada) - can be qualified as a "comment" on the specific answers provided by the scientific experts advising the Panel which parties were allowed to make after the 7 October 1997 deadline. We recall, however, that - as is outlined in paragraph 8.22 - we granted Australia the one additional week it requested to respond, inter alia, to the Vose Report in a third written submission. Against this background and since, in our view, the Vose Report is in any event not crucial to our report, we shall not further consider it in our examination. With respect to Exhibit C-14, submitted by Canada at our second substantive meeting and thus after the meeting with the experts advising the Panel, we agree with Australia that the 7 October 1997 deadline applies and that it should, therefore, be rejected. The experts advising the Panel never received this document. The experts could thus not comment on it. We therefore exclude Exhibit C-14 from our examination. 8.5 Finally, at the interim review meeting Australia also pointed out that the risk assessment conducted by New Zealand in 1997 which Canada attached to its comments on the experts' written responses, hereafter "1997 New Zealand Risk Analysis". 195 should be excluded since it was submitted after the 7 October 1997 deadline. In one of our questions to the experts advising the Panel we inquired whether the risk assessment conducted by New Zealand in 1994 - and which had been submitted to us by Canada as an exhibit to its first submission - was scientifically relevant to this dispute. In response, one of the experts advising the Panel referred to and discussed the more recent 1997 risk assessment carried out by New Zealand. In its comments to this answer, Canada submitted this risk assessment. On this ground, we consider that we can take into account the 1997 New Zealand Risk Analysis in our further examination. C. GENERAL INTERPRETATIVE ISSUES 1. Scope of the Australian measures in dispute 8.6 Our terms of reference direct us to examine "in light of the relevant provisions of the covered agreements cited by Canada in document WT/DS18/2 [the request for establishment of this Panel], the matter referred to the DSB by Canada in that document". 196 8.7 In the Panel request Canada specified the contested measures as follows: "The Australian Government's measures prohibiting the importation of fresh, chilled or frozen salmon ... include Quarantine Proclamation 86A, dated 19 February 1975, and any amendments or modifications to it. The measures adversely affect the importation of Canadian salmon". 197 In its first submission to the Panel, Canada specifies that the Australian measures at issue are "Quarantine Proclamation 86A ("QP86A") and published requirements pursuant to QP86A that together require salmonid product to be heat treated for certain prescribed durations and temperatures, prior to importation into Australia". 198 Canada sums up the following Australian measures as published requirements pursuant to QP86A: (1) "Guidelines for the Importation of Smoked Salmon and Trout into Australia", issued in July 1983 by the Australian Department of Primary Industries and Energy ("1983 Guidelines"; these Guidelines are no longer in effect and we shall thus not further address them); (2) "Conditions for the Importation of Salmonid Meat and Roe into Australia", issued on 1 June 1988 by the same department and replacing earlier guidelines, including the 1983 Guidelines ("1988 Conditions"); (3) "Requirements for the importation of individual consignments of smoked salmon meat", issued by the Australian Quarantine and Inspection Service ("AQIS") on 24 January 1996 ("1996 Requirements"); and (4) the Decision of the Director of Quarantine, dated 13 December 1996, that a permit will not be issued for the importation into Australia of "uncooked, adult, wild, ocean-caught Pacific salmonid product from the Pacific rim of North America" ("1996 Decision"). 199 8.8 Australia submits that the measure at issue is the 1996 Decision. For Australia, QP86A is not at issue since it does not constitute an import prohibition but only provides the legal basis for conditions of entry of salmon. Australia submits that the fact that imports of appropriately heat-treated and canned salmon have been permitted, is evidence that QP86A does not constitute an import prohibition. If Australia is correct, the scope of this dispute would be limited to the specific category of salmon covered by the 1996 Decision. At the interim review stage, Australia further alleged that the 1988 Conditions only apply to products imported in heat-treated form and are not comprehensive since other products may enter Australia provided the decision-maker is satisfied that the risk is acceptable. Such other products which are allowed for importation are commercially canned salmon (according to Australia, not subject to formal guidelines) and material for scientific and research purposes. 8.9 Canada counters that it does not argue that QP86A is an import prohibition, but rather, that it has been applied as an import prohibition, by means of the published guidelines and conditions on heat treatment. For Canada, it is a fact that Canadian fresh, chilled and frozen salmon cannot enter Australia and that, therefore, the measures in question operate as an import prohibition. Furthermore, Canada notes that if the measure at issue would only be the 1996 decision by the Director of Quarantine, the scope of the measure would be limited to uncooked, adult, wild, ocean-caught Pacific salmon from Canada and the United States. However, according to Canada, the terms of reference of the Panel extend to all fresh, chilled and frozen salmon from Canada. 8.10 QP86A provides in relevant part: "NOW THEREFORE I, ..., the Governor-General of Australia, ..., hereby, ... (d) prohibit the importation into Australia of dead fish of the sub-order Salmonidae, or any parts (other than semen or ova) of fish of that sub-order, in any form unless (i) prior to importation into Australia the fish or parts of fish have been subject to such treatment as in the opinion of the Director of Quarantine is likely to prevent the introduction of any infectious or contagious disease, or disease or pest affecting persons, animals or plants; (underlining added) and (ii) the Director of Quarantine or a person authorized by him has, by instrument in writing, consented to the importation and the instrument is produced to a Collector ... or to a quarantine officer". 200 8.11 The 1988 Conditions, which replaced earlier guidelines (including the 1983 Guidelines) which we do not need to address, provide as follows: "CONDITIONS FOR THE IMPORTATION OF SALMONID MEAT AND ROE INTO AUSTRALIA 1. All uncanned salmon and trout meat and salmon roe will require a quarantine permit to enter Australia. ... 3. On current information approved temperature time relationships are as follows: 35° for 7 hours ) 40° for 5 1/2 hours ) 50° for 3 hours ) oven temperatures 60° for 1 hour ) 70° for 0.25 hour ) 120° for 0.2 hour ) ... 5. The Australian Quarantine and Inspection Service is willing to consider variations to the current requirements which could take into account the effects of the auxiliary processing such as "flash-baking", "par boiling", "gamma irradiation", "brining" or "freezing" where the effectiveness of this process in inactivating organisms can be demonstrated ... ... 12. These conditions valid at 1 June 1988, are subject to alteration at the discretion of the Director of Animal and Plant Quarantine (Australia) or if the fish disease status of any exporting country changes". 201 (underlining added) 8.12 The 1996 Requirements specify new requirements for the importation of individual consignments of smoked salmonid meat (under 5 kg in weight) accompanied by passengers. These consignments are: "exempt from the certification requirement of Condition Code 5055 in Volume 5 of the Quarantine Manual. However, treatment to the prescribed processing is still required". 202 8.13 The 1996 Decision of the Director of Quarantine reads in relevant part: "The [Chief Veterinary Officer] recommends "that the status quo for quarantine policies for uncooked salmon products continue" - i.e., that the requests from Canada and US for access for uncooked, adult, wild, ocean caught Pacific salmonid product not be approved. ... On the basis of these considerations I have decided that, having regard to Australian Government policy on quarantine and after taking account of Australia's international obligations, importation of uncooked, adult, wild, ocean-caught Pacific salmonid product from the Pacific rim of North America should not be permitted on quarantine grounds". 203 8.14 In addressing the argument raised by Australia - that QP86A is not an "import prohibition" and that the only "import prohibition" at issue is the 1996 Decision - we note that the argument relates primarily (and for the purpose of our present examination, exclusively) to the interpretation of our terms of reference (in particular, the terms "measures prohibiting the importation" in the Panel request). We, therefore, recall the Appellate Body's statement in its report on Brazil - Measures Affecting Desiccated Coconut: "A panel's terms of reference are important for two reasons. First, terms of reference fulfil an important due process objective - they give the parties and third parties sufficient information concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the complainant's case. Second, they establish the jurisdiction of the panel by defining the precise claims at issue in the dispute". 204 We note, however, that in this dispute Australia does not argue that either QP86A or any of the guidelines, conditions or requirements mentioned by Canada fall outside our terms of reference due to lack of specificity of the Panel request, in the sense of Article 6.2 of the DSU. 205 In line with this, Australia does not submit that the request for consultations or the Panel request did not give it adequate notice that Canada would also contest measures implementing QP86A. Australia only argues that none of the measures challenged by Canada, other than the 1996 Decision, can be considered as an "import prohibition", i.e., the kind of measure mentioned in the Panel request. 8.15 Considering, first, whether QP86A falls within our terms of reference, we note that our terms of reference are defined in the Panel request and that in this case the Panel request explicitly identifies QP86A. We find, therefore, that QP86A, irrespective of how Canada characterizes it (in casu, Canada considers it to be a measure "prohibiting the importation of fresh, chilled or frozen salmon"), falls within our terms of reference. In this respect, we note, moreover, that in 1975 a Chief Quarantine Officers (Animals) Conference decided that under QP86A "all fresh or frozen salmonid flesh is prohibited". 206 The 1996 Final Report as well stated unambiguously that under QP86A "commercial quantities of fresh, frozen and chilled salmon product are not permitted entry into Australia". 207 8.16 We next examine whether the published requirements pursuant to QP86A referred to by Canada (i.e., the 1988 Conditions, the 1996 Requirements and the 1996 Decision) fall within our terms of reference. We note that none of these requirements are explicitly mentioned in the Panel request. We recall, however, that the Panel request does refer to "measures prohibiting the importation of fresh, chilled or frozen salmon" and explicitly mentions QP86A as being one such measure. 8.17 The 1996 Decision is a decision taken by the Director of Quarantine on the basis of the authority delegated to him by QP86A. Following a recommendation of the Chief Veterinary Officer "that the status quo for quarantine policies for uncooked salmon products continue", it explicitly states that the "importation of uncooked, adult, wild, ocean-caught Pacific salmonid product from the Pacific rim of North America should not be permitted on quarantine grounds". It thus confirms the general prohibition in principle imposed by QP86A on the importation of all salmonid products (unless special authorization is granted) for a limited category of salmonid products. It confirms, more particularly, the decision taken by the Chief Quarantine Officers (Animals) Conference, referred to in paragraph 8., that "all fresh or frozen salmonid flesh is prohibited". We consider, therefore, that the 1996 Decision is a measure "prohibiting the importation of fresh, chilled or frozen salmon" as referred to in the Panel request and this even though it only prohibits importation of a specific category of "fresh, chilled or frozen salmon" (namely, "uncooked, adult, wild, ocean-caught Pacific salmonid product"). In our view, the 1996 Decision is, moreover, subsidiary and so closely related to QP86A that it can be said to be part of the application of QP86A. 208 On these grounds, we find that the 1996 Decision falls within our terms of reference. 8.18 In our view, the same reasoning applies to the 1988 Conditions. They impose - as the title of the 1988 Conditions reads - "conditions for the importation of salmonid meat and roe into Australia". They authorize - by decision of the Director of Quarantine who was granted the authority to do so in QP86A - the importation of salmonid meat and roe into Australia subject to heat treatment in accordance with certain approved temperature-time relationships. In that sense, they are - as the 1996 Decision is - subsidiary and so closely related to QP86A that they can also be said to be part of the application of QP86A. 209 Contrary to what Australia alleges, nothing in the 1988 Conditions implies that the 1988 Conditions only apply to heat-treated product. Only the actual requirement for importation imposed in the 1988 Conditions (not the scope of application of these conditions) refers to heat treatment. According to Australia, only two other categories of salmonid product (for which no formal guidelines exist) may enter Australia: canned salmon 210 (which, however, according to Australia will a fortiori meet the heat treatment requirements contained in the 1988 Conditions) and frozen, uncooked salmon tissue to be used for scientific purposes or for taxidermy. 211 Therefore, to the extent that the 1988 Conditions require salmon product to be heat-treated before they can enter Australia and given the fact that, according to Australia, only some minuscule quantities of salmon product not so heat-treated can enter Australia (namely, frozen, uncooked salmon tissue used for scientific purposes or taxidermy), we consider that the 1988 Conditions, read in that context, in effect deny the importation of commercial quantities of salmon product not heat-treated as prescribed. 212 The 1988 Conditions can, in that sense, also be said to constitute a measure "prohibiting the importation of fresh, chilled or frozen salmon" as referred to in the Panel request. 213 For the above reasons, we consider that also the 1988 Conditions fall within our terms of reference. Finally, with respect to the 1996 Requirements - which deal with the importation of individual consignments of salmonid meat and confirm that the heat treatment requirements imposed in the 1988 Conditions apply for such imports - we consider that the same reasoning as that developed above for the 1988 Conditions applies. We thus consider that the 1996 Requirements fall within our terms of reference. 8.19 For the above reasons, we consider that, according to our terms of reference, the measure we need to examine in this dispute is QP86A as implemented or confirmed by the 1988 Conditions, the 1996 Requirements and the 1996 Decision and this in so far as it prohibits the importation into Australia of fresh, chilled or frozen salmon. 8.20 In its first submission, Canada specifies certain limits on the scope of the dispute. Australia does not object to this and we see no reason to do so either. First, Canada limits its challenge to the treatment of Canadian salmon. Second, Canada further specifies that only salmon products for human consumption are at issue. Third, Canada also clarifies the notion of "fresh, chilled or frozen" salmon, the only category of salmon mentioned in the Panel request (also referred to by Canada as "uncooked salmon") to mean salmon which has not been heat treated as required by Australia prior to importation. Fourth, Canada identifies the Canadian salmon for which it seeks access to the Australian market to consist of the following seven species: (1) pink salmon; (2) chum salmon; (3) coho salmon; (4) sockeye salmon; (5) chinook or king salmon; (6) steelhead/rainbow trout; and (7) Atlantic salmon. The first five species are all Pacific salmon. The sixth species, steelhead/rainbow trout, differs from the other species referred to by Canada in that it is - according to the experts advising the Panel on this issue 214 - not a "salmon" species but only part of the wider "salmonid" family (including, inter alia, the genus Oncorhynchus). Since the Panel request, which defines our terms of reference, only refers to "salmon", not to the wider category of "salmonid", we find that steelhead/rainbow trout falls outside our terms of reference. 8.21 Considering our terms of reference as interpreted above and taking into account the further refinements provided in Canada's first submission, we shall, therefore, only examine Australian QP86A as implemented or confirmed by the 1988 Conditions, the 1996 Requirements and the 1996 Decision and this only in so far as it prohibits the importation of salmon products (i.e., dead salmon or any part thereof) (1) imported from Canada, (2) for human consumption, (3) which are "fresh, chilled or frozen" (i.e., which have not been heat-treated as required by Australia prior to importation) and (4) which originate from any of the species of salmon identified by Canada other than steelhead/rainbow trout. Hereafter we refer to this measure as "the measure in dispute" or "the measure at issue" and to the specific category of salmon products fulfilling all four above-mentioned conditions as "the salmon products in dispute" or "the salmon products at issue". 215 2. The "fundamental changes" introduced by Canada in its oral statement at the second substantive meeting 8.22 At our second substantive meeting, Australia raised a procedural claim related to Canada's oral statement made at that meeting. According to Australia, Canada's oral statement introduced fundamental changes in the nature of its specific legal claims which are of such significance that Australia should be allowed to rebut them through a formal written rebuttal submission. On this ground, Australia requested the Panel to give it more time - suggesting one extra week - to submit a third written rebuttal submission. The "fundamental changes" referred to by Australia are outlined in paragraphs 4.8-4.17. We consider that some of these changes - most of them inspired by the expert advice gathered by the Panel at the experts meeting and by the Appellate Body's Report on EC - Hormones - are, indeed, substantial and for reasons of due process warrant an additional rebuttal period for Australia. We thus granted Australia's request to submit a third written submission within one week after our second substantive meeting. We gave the same opportunity to Canada and specified that both third submissions had to be limited to the "fundamental changes" introduced by Canada as they were identified in an oral statement made by Australia at the second substantive meeting. On 13 February 1998, we received such third submission from both parties. 8.23 In its third submission Australia argues that some of these "fundamental changes" are "new claims". However, Australia does not submit that they are "new claims" in the sense that they fall outside our terms of reference. The document which defines our terms of reference is Canada's request for this Panel. In relevant part Article 6.2 of the DSU requires that "[t]he request for the establishment of a panel shall ... identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". Moreover, as noted by the Appellate Body in European Communities - Regime for the Importation, Sale and Distribution of Bananas: "There is no requirement in the DSU or in GATT practice for arguments on all claims relating to the matter referred to the DSB to be set out in a complaining party's first written submission to the panel. It is the panel's terms of reference, governed by Article 7 of the DSU, which set out the claims of the complaining parties relating to the matter referred to the DSB". 216 8.24 Canada's request for this Panel sufficiently identifies the measures at issue 217 and specifies, inter alia, that these measures "are inconsistent with (i) the Agreement on the Application of Sanitary and Phytosanitary Measures, and in particular Article 2, 3 and 5 thereof". We next address whether the, according to Australia, "new claims" made by Canada at our second substantive meeting fall within our mandate. First, Australia argues that Canada extended its claim under Article 5.1 to include claims in respect of heat-treated salmon and salmon not covered by the 1996 Final Report. This "new claim" remains a claim under Article 5.1, which falls within our terms of reference. The product coverage of this dispute, set out in the Panel request and specified by Canada in its first submission, has been determined in paragraph 8.18. It does not only include salmon products covered by the 1996 Final Report. It does exclude heat-treated product. Second, Australia alleges that Canada introduced a new specific claim under Articles 5.1, 5.2 and 2.2, on the basis that there was no rational relationship between the measure and the scientific evidence. We consider this "new claim" to be a new argument (put forward in support of claims under Articles 2 and 5 which do fall within our terms of reference), inspired by the Appellate Body Report on EC - Hormones, not a new claim. Third, in respect of Article 5.5, Australia submits that Canada had not previously made a legal claim that the measure resulted in a disguised restriction on international trade. We consider this "new claim" (which refers to one of the requirements under Article 5.5 and has been raised by Canada in its first submission) to be a claim under Article 5.5, which does fall within our terms of reference. Fourth, in regard to Article 3.3, Australia argues that Canada had not previously requested the Panel to make a finding of violation in respect of Article 3.3. Claims under Article 3, including Article 3.3 to which Article 3.1 explicitly refers, fall within our terms of reference. Moreover, in its first submission, Canada already submitted that Australia does not fulfil the conditions in Article 3.3. Fifth, in regard to Article 5.6, Australia argues that Canada introduced a new legal claim in respect of heat-treated product. As we found in paragraph 8.18, heat-treated product falls outside the product coverage of this dispute. However, as set out in paragraph 8.18, the 1988 Conditions - which impose specific heat-treatment requirements before importation is allowed - do fall within our terms of reference. 8.25 We thus consider that all of the "new claims" introduced by Canada at our second substantive meeting fall within our terms of reference and can be taken into account in our examination of this dispute. 3. Canada's claim under Article XXIII:1(b) of GATT 1994 8.26 Australia argues that Canada's claim under Article XXIII:1(b) of GATT 1994, i.e., its claim of non-violation nullification and impairment, falls outside our terms of reference since it was not identified in Canada's Panel request. Canada disagrees and submits that this claim was raised in its requests for consultations under GATT and the WTO and in its request for the establishment of this Panel. 8.27 Article 6.2 of the DSU provides in relevant part: "The request for the establishment of a panel shall ... identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". The Appellate Body Report on European Communities - Regime for the Importation, Sale and Distribution of Bananas noted the following: "Article 6.2 of the DSU requires that the claims ... must all be specified sufficiently in the request for the establishment of a panel in order to allow the defending party and any third parties to know the legal basis of the complaint. If a claim is not specified in the request for the establishment of a panel, then a faulty request cannot be subsequently "cured" by a complaining party's argumentation in its first written submission to the panel or in any other submission or statement made later in the panel proceeding". 218 In its Report on India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, the Appellate Body found: "In this case ... there is a failure to identify a specific provision of an agreement that is alleged to have been violated. This falls below the "minimum standards" [established by Article 6.2 of the DSU] that we were willing to accept in European Communities - Bananas". 219 8.28 Since in this dispute, Article XXIII of GATT 1994 is not mentioned by Canada in its request for this Panel as a legal basis for its complaint (only as a legal ground to obtain the establishment of the Panel) and the Panel request does not refer at all to the more specific and quite different non-violation provision of Article XXIII:1(b) (the Panel request only refers to the idea of "nullification and impairment" in the context of measures "inconsistent" with WTO rules in the sense referred to in Article XXIII:1(a)), we find that Canada's claim under Article XXIII:1(b) falls outside our terms of reference. To continue with Australia - Measures Affecting Importation of Salmon: Section 8.29 193 David Vose, "Quantitative analysis of the risk of establishment of Aeromonas salmonicida and Renibacterium salmoninarum in Australia as a result of importing Canadian ocean-caught salmon". 194 Lester and Sewell, "Checklist of Parasites from Heron Island, Great Barrier Reef". 195 Stone, MacDiarmid and Pharo, "Import Health Risk Analysis: Salmonids for Human Consumption, New Zealand, Ministry of Agriculture Regulatory Authority", 1997. 196 WT/DS18/3, 3 June 1997. 197 WT/DS18/2, 10 March 1997, p.1. 198 Canada, First Submission, para. 4. 199 The first three measures were referred to by Canada in its first submission, footnote 2, p.1. Later in the proceedings Canada also referred to the 1996 Decision. 200 Commonwealth of Australia Special Gazette No. S 33, 21 February 1975. 201 Department of Primary Industries and Energy ("DPIE"), Document T88/90, 1 June 1988. 202 AQIS, Quarantine Operational Notice 1996/022, 24 January 1996, p.2. 203 AQIS, Policy Decision, 13 December 1996, Australian Exhibit 33 to its First Submission. 204 Adopted 20 March 1997, WT/DS22/AB/R, p.22. See also Appellate Body Reports on EC - Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R, para. 142, and India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, paras. 87-88. 205 Article 6.2 of the DSU provides in relevant part: "The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". 206 Chief Quarantine Officers (Animals) Conferences 1975, (Canberra) 23-24 September, (Melbourne) 17 November, p.20. 207 1996 Final Report, p.4. 208 Panel Report on Japan - Measures Affecting Consumer Photographic Film and Paper, adopted on 22 April 1998, WT/DS44/R, para. 10.6-10.11, especially at para. 10.10: "In our view, "measures" that are subsidiary or closely related to specified "measures" can be found to be "adequately identified" as that concept was applied in the Bananas III case". 209 Ibid. 210 1996 Final Report, p.4: "commercially canned salmon products in hermetically sealed containers not requiring refrigeration may be imported". 211 Ibid., p.4: "small amounts [of fresh, frozen and chilled salmon product] have been permitted entry into approved premises for scientific purposes". 212 1996 Final Report, p.4: "commercial quantities of fresh, frozen and chilled salmon product are not permitted entry into Australia" and Chief Quarantine Officers (Animals) Conferences 1975, (Canberra) 23-24 September, (Melbourne) 17 November, p.20: "all fresh or frozen salmonid flesh is prohibited". 213 At our interim review meeting, Australia stated that it was reviewing its heat treatment requirements but that in the interim the 1988 Conditions are applied. 214 Rodgers, Transcript, para. 23 and Winton, Transcript, para. 46. 215 We note that we need not address in this dispute the importation of live salmon or salmon used as feedstuff or bait. 216 Op. cit., para. 145. 217 Paras. 8.6 ff. 218 Op. cit., para. 143, emphasis in original. 219 Adopted 16 January 1998, WT/DS50/AB/R, para. 91.

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