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12 June 1998
Australia - Measures Affecting Importation of Salmon
Report of the Panel
The report of the Panel on Australia - Measures Affecting Importation of Salmon - is being circulated to all Members, pursuant to the DSU. The report is being circulated as an unrestricted document from 12 June 1998 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only parties to the dispute may appeal a panel report, an appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel, and that there shall be no ex parte communications with the panel or Appellate Body concerning matters under consideration by the panel or Appellate Body.
Note by the Secretariat: This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date of its circulation unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report. If the Panel Report is appealed to the Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal. Information on the current status of the Panel Report is available from the WTO Secretariat.
TABLE OF CONTENTS
2. Australia's current provisions relating to the importation of salmonid product
3. International recommendations - the OIE
4. Australia's import risk analysis
2. Australia's claims
2. Relationship between GATT 1994 and the SPS Agreement
3. The SPS Agreement
(b) The measure at issue
(c) The disease agents at issue
(d) Article 1.1
(e) Article 2.2
(f) Article 2.3
(g) Article 3.1
(h) Article 3.3
(i) Article 5.1
(j) Articles 5.2, 5.3 and 5.4
(k) Article 5.5
(l) Article 5.6
5. Article XXIII of GATT 1994
Questions to the experts - Compiled Responses
Risk assessment procedures
The distribution and transmission of fish diseases
OIE procedures and recommendations
B. ORGANIZATIONAL ISSUES
C. GENERAL INTERPRETATIVE ISSUES
2. The "fundamental changes" introduced by Canada in its oral statement at the second substantive meeting
3. Canada's claim under Article XXIII:1(b) of GATT 1994
4. Application of GATT 1994 and the SPS Agreement
5. Relationship between the SPS Agreement and GATT 1994
2. Sequence of claims to be addressed
3. Canada's claims under Articles 5.1 and 5.2: Sanitary measures are to be based on a risk assessment
(b) Salmon products in dispute from adult, wild, ocean-caught Pacific salmon
(ii) The applicable definition of "risk assessment"
(iii) Is the 1996 Final Report a risk assessment in accordance with Articles 5.1 and 5.2?
(iv) Is the sanitary measure at issue "based on" a risk assessment as required in Article 5.1?
(b) Arbitrary or unjustifiable distinctions in levels of sanitary protection which result in discrimination or a disguised restriction on trade
(ii) "Arbitrary or unjustifiable" differences in levels of protection
(iii) Distinctions in levels of protection which result in "discrimination or a disguised restriction on international trade"
(b) an alternative measure which "achieves [Australia's] appropriate level of sanitary ... protection"
(c) an alternative measure which is "significantly less restrictive to trade" than the sanitary measure contested
E. ARTICLE XI OF GATT 1994
ANNEX 1 - The Four Comparisons under Article 5.5
ANNEX 2 - Transcript of the Joint Meeting with Experts
1.1 On 5 October 1995, Canada requested consultations with Australia in accordance with Article 4.4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), pursuant to Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994") and Article 11.1 of the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement"), regarding the Government of Australia's prohibition on the importation of untreated fresh, chilled or frozen salmon from Canada under Quarantine Proclamation No. 86A, dated 19 February 1975. In the request for consultations, the Government of Canada expressed the view that the application of the import prohibition in question was inconsistent with the obligations of the Government of Australia under GATT 1994 and the SPS Agreement. The provisions of these Agreements with which the import prohibition was inconsistent included, but were not limited to: (i) Articles XI and XIII of GATT 1994; and (ii) Articles 2 and 5 of the SPS Agreement. The import prohibition nullified or impaired benefits accruing to Canada under the Marrakesh Agreement Establishing the World Trade Organization ("WTO Agreement").1
1.2 Australia accepted Canada's request and consultations were held on 23 and 24 November 1995, in Geneva, with a view to reaching a satisfactory resolution of the matter. These consultations failed to settle the dispute. Following the conclusion of the "Australian Salmon Import Risk Analysis", on 20 December 1996 the Government of Australia announced that it would maintain the measure in force. 2 Canada did not request further consultations.
1.3 On 7 March 1997, pursuant to Article XXIII of GATT 1994, Article 11 of the SPS Agreement, and Articles 4 and 6 of the DSU, Canada requested that the Dispute Settlement Body ("DSB") establish a panel with standard terms of reference. Canada requested that the panel consider and find that the Australian measure was inconsistent with (i) the SPS Agreement, and in particular Articles 2, 3 and 5 thereof; (ii) GATT 1994, and in particular Articles XI and XIII thereof; and (iii) that the application of the Australian measures nullified or impaired benefits accruing to Canada pursuant to the WTO Agreement.
1.4 On 10 April 1997, the DSB established a panel pursuant to the request of Canada, in accordance with Article 6 of the DSU. 3 The parties agreed that the panel should have standard terms of reference:
"To examine, in the light of the relevant provisions of the covered agreements cited by Canada in document WT/DS18/2, the matter referred to the DSB by Canada in that document and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."
1.5 The European Communities, India, Norway and the United States reserved their right to participate in the Panel proceedings as third parties.
1.6 On 28 May 1997, the Panel was constituted with the following composition:
1.7 The Panel met with the parties on 9 and 10 September 1997. It met with third parties on 10 September 1997. The Panel consulted scientific and technical experts and met with them on 4 February 1998. The Panel held a second meeting with the parties on 5-6 February 1998.
1.8 On 24 November 1997, the Chairman of the Panel informed the DSB that the Panel would not be able to issue its report within six months. The reasons for that delay were stated in document WT/DS18/4.
1.9 The Panel issued its interim report on 26 March 1998. At the request of Australia, an interim review meeting was held on 21 April 1998. The final report was provided to the parties on 5 May 1998.
2.1 The product subject to the dispute is fresh, chilled and frozen salmon product destined for human consumption that has not been subject to heat treatment according to certain prescribed durations and temperatures, prior to importation into Australia (paragraph ). Fresh, chilled and frozen salmon comes within Codes 0302 to 0304 of the Harmonized System of tariff classification. Hereafter this product is referred to as "uncooked salmon" or "fresh, chilled or frozen salmon". 4 The family Salmonidae includes a number of species groups, such as salmon, trout, charr, grayling and whitefish. Salmonidae is the scientific name and "salmonid" is a common name for this family.
2.2 In Canada, there are five sources of uncooked salmon for export5:
The Canadian salmon farming industry is mainly located in the provinces of New Brunswick and British Columbia.
2.3 Canadian exports of salmon have grown from 30,653 tons in 1969 to 66,234 tons in 1996. The proportion of fresh and frozen salmon during this period has increased significantly: exports of fresh and frozen salmon were 14,683 tons in 1969 (48 per cent of total exports) and 50,838 tons in 1996 (77 per cent).
2.4 "Canadian salmon" is all salmon landed by Canadian vessels. All such salmon is harvested in Canadian waters as no Canadian vessels harvest salmon on the high seas or in foreign waters. This may include salmon that have spawned in the United States and that are intercepted by Canadian fishermen as they pass through Canadian waters on their return migration to the United States.
2.5 The following are considered to be Pacific salmon species:
2.6 Commercial salmon production in Australia is based on the Atlantic salmon. Atlantic salmon was first imported to Australia in 1864 and last imported live for the establishment of domestic populations in the early 1960s. Until the 1960s, the farming of salmonids was predominantly conducted by government bodies for the purpose of stocking recreational fisheries.
2.7 There are five introduced salmonid species in Australia6:
In addition, native salmoniforms, or galaxids, are found in south eastern Australia (principally in the States of New South Wales, Victoria and Tasmania) and the south west of the State of Western Australia.
2.8 The first commercial production of Atlantic salmon in Australia took place in Tasmania in 1986-87. Salmonid production in Australia operates at the edge of the climatic range for salmonid survival, and for this reason commercial salmonid aquaculture operations in Australia are concentrated in Tasmania and, to a lesser extent, in the alpine and sub alpine regions of north east Victoria and south east New South Wales. Tasmania continues to supply the bulk of Australian commercial production. Sea-cage farming of Atlantic salmon and rainbow trout is a major part of the Tasmanian aquaculture industry. 7 Atlantic salmon is produced in Victoria and South Australia. 8
2.9 Production grew from about 20 tons in 1986-87 to around 6,192 tons in 1994-95, with further growth anticipated. 9 Output for 1995-96 was valued at $A 63 million. Australia exports about 40 per cent of its production volume, mainly to Japan. Of the remaining domestic market share, about 60 per cent is sold fresh and one third is smoked. Consumption of Atlantic salmon has increased significantly in Australia during the 1990s. Aside from the salmon industry, salmonids are used in recreational fisheries in Australia.
2.10 The major producers of farmed Atlantic salmon in the world are Norway, Chile and Scotland, jointly accounting for 80 per cent of world supply of Atlantic salmon in the early 1990s. 10
Diseases of salmon
2.11 In the dispute at issue, Australia has identified 24 disease agents of concern associated with the importation of Canadian salmon. The identified disease agents are listed in Table 3. The Australian Salmon Import Risk Analysis of December 1996 (hereafter "the Final Report") considered the importation of uncooked, adult, wild, ocean-caught Pacific salmonid product from the United States and Canada (the first category in paragraph ). The Final Report also identifies 24 disease agents of concern; these are identical to those identified in the dispute at issue with the exception of Kudoa thyrsites and the addition of Infectious salmon anaemia. 11
2.12 According to the Office international des épizooties, a disease means the "... clinical or non-clinical infection with one or more of the aetiological agents of the disease ...". A disease agent is "... an organism which causes or contributes to the development of a disease ...". 12 A disease agent may have several strains with varying degrees of harmfulness.
2.13 The disease agents at issue in this dispute are not of concern from a human health perspective.
2. Australia's current provisions relating to the importation of salmonid product
2.14 Australian Quarantine Proclamation 86A ("QP86A"), dated 19 February 1975, made under the Quarantine Act 1908, states the following in relation to importation of dead salmon13:
"NOW THEREFORE I, Sir John Robert Kerr, the Governor-General of Australia, acting with the advice of the Executive Council, 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; 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 within the meaning of the Customs Act 1901-1974 or to a quarantine officer."
Proclamation 86A delegates authority to the Director of Quarantine to determine the conditions of entry in accordance with part (d) referred to above. The Director of Quarantine is the Secretary of the Department of Primary Industries and Energy or his or her nominee.
2.15 Before the promulgation of QP86A on 30 June 1975, Australia imposed no restrictions on the importation of products derived from salmonids. At the time of proclamation, QP86A primarily had application to the protection of the animal health status of trout recreational fisheries in Australia from disease introduction and, potentially, for the purposes of protecting the animal health status of any future commercial salmonid industry which might be developed in Australia. Australia has noted that the Proclamation also has application to the animal health status of native salmoniforms. Australia has advised that the term "introduction" is applied and interpreted in Australia in the same sense as "entry, establishment or spread" referred to in the text of the SPS Agreement.
2.16 In accordance with the delegated authority, pursuant to QP86A, the Director of Quarantine has permitted the entry of commercial imports of heat-treated salmon product for human consumption together with non-commercial quantities of other salmon (primarily for scientific purposes) subject to prescribed conditions. The Director of Quarantine, in accordance with the same delegated authority, has decided that imports of uncooked salmon should be restricted. Specifically, the following requirements have been issued in relation to salmon imports:
(i) "Guidelines for the Importation of Smoked Salmon and Trout into Australia" (the "1983 Guidelines"). Effective 1 September 1983, imports of salmon other than canned salmon were only allowed subject to an assessment that the treatment under which the salmon had been processed was sufficient to prevent the entry of disease. With immediate effect, "cold smoked" salmon was not allowed to be imported, unless evidence was produced that it had been processed in such a way as to inactivate the causative organisms of diseases of salmonids. 14
(ii) "Conditions for the Importation of Salmonid Meat and Roe into Australia", of December 1986. This circular required an import permit for all uncanned salmon and trout meat and salmon roe to enter Australia. Among other requirements, it listed the major diseases of concern and established the minimum temperature requirements for heating. 15
(iii) "Conditions for the Export of Salmonid Meat and Roe to Australia", dated May 1987. This Circular dealt with non-commercial importation of salmonid meat and roe in response to difficulties arising in certification requirements for individual consignments (under 5kg. in weight) accompanied by passengers entering Australia. 16 "Revised conditions for the importation of salmonid meat and roe into Australia" were issued in June 1987. 17
(iv) "Conditions for the Importation of Salmonid Meat and Roe into Australia", issued in June 1988. This circular modified the oven temperatures and time relationships for heating of salmon for importation. Under the new requirements, the minimum processing that salmonid meat would be allowed to undergo was at a temperature of 35ÿC for a period of not less than 7 hours. This circular replaced the 1983 guidelines and are hereafter referred to as the "1988 Conditions". 18 Since the issuance of these 1988 Conditions, there have been no new treatment specifications to date. The term "uncanned heat-treated salmon" and "salmon treated with the 1988 Conditions" are the same.
(v) "Importation of Salmonid Meat in Retortable Pouches", dated in April 1990. This circular announced the approval of the importation of salmonid meat in retortable pouches under certain conditions. 19
(vi) "Requirements for the Importation of Individual Consignments of Smoked Salmonid Meat", dated in January 1996. This notice by AQIS set new import requirements for individual consignments (under 5kg. in weight). These are hereafter referred to as the "1996 Requirements". 20
To continue with Australia - Measures Affecting Importation of Salmon: Section 2.17
4 The importation of live salmonids is not at issue.
5 Only adult salmon are harvested for export.
6 Australian Salmon Import Risk Analysis, Final Report, December 1996, p.19.
7 Ibid., p.93
8 Australian Atlantic Salmon: Effects of Import Competition, p.5, Industry Commission, Research Project, 20 December 1996. See also Final Report, p.20.
9 Final Report p.93.
10 Australian Atlantic Salmon: Effects of Import Competition, p.5, Industry Commission, Research Project, 20 December 1996.
11 Final Report, p.133.
12 OIE International Aquatic Animal Health Code; OIE Code (1995), p.6.
13 Quarantine Proclamation No. 86A, Australian Government Gazette, No. S33, 21 February 1975.
14 Chief Quarantine Officer (Animals) Circular Memorandum 82/83, dated 25 July 1983.
15 Chief Quarantine Officer (Animals) Circular Memorandum 399/86.
16 Chief Quarantine Officer (Animals) Circular Memorandum 121/87, dated 29 May 1987.
17 Chief Quarantine Officer (Animals) Circular Memorandum 122/87.
18 Chief Quarantine Officer (Animals) Circular Memorandum 166/88, dated 9 June 1988.
19 Chief Quarantine Officer (Animals) Circular Memorandum 93/90, April 1990.
20 AQIS Quarantine Operational Notice 1996/022, 24 January 1996.