UNITED STATES - DEFINITIVE SAFEGUARD MEASURES
   ON IMPORTS OF WHEAT GLUTEN FROM THE
   EUROPEAN COMMUNITIES
   
   
   
   AB-2000-10
   
   
   Report of the Appellate Body

(continued)

VI. Article 2.1 of the Agreement on Safeguards

93. Before the Panel, the European Communities claimed that the United States' treatment of imports of wheat gluten from Canada, its partner in the North American Free Trade Agreement ("NAFTA"), was inconsistent with Articles 2.1 and 4.2 of the Agreement on Safeguards .⁸⁹ On this issue, the Panel concluded that:

… in this case, the United States has acted inconsistently with Articles 2.1 and 4.2 SA by excluding imports from Canada from the application of the safeguard measure (following a separate and subsequent inquiry concerning whether imports from Canada accounted for a "substantial share" of total imports and whether they "contributed importantly" to the "serious injury" caused by total imports) after including imports from all sources in its investigation of "increased imports" of wheat gluten into its territory and the consequent effects of such imports on its domestic wheat gluten industry.⁹⁰ (emphasis in original)

94. On appeal, the United States challenges the Panel's interpretation of Articles 2.1 and 4.2 of the Agreement on Safeguards, and argues that the Panel failed to take sufficient account of the fact that, in this case, following its determination that imports from all sources were causing serious injury, the USITC conducted a "separate and subsequent examination"⁹¹ , as part of the same investigation, concerning Canadian imports alone. In that examination, the USITC found that, although "imports from Canada account for a substantial share of total imports", those imports were "not contributing importantly to the serious injury caused by imports".⁹² On the basis of this examination, the USITC recommended that imports from Canada be excluded from any safeguard measure adopted.⁹³ The United States considers that, for these reasons, it was justified in excluding imports of wheat gluten from Canada from the scope of application of the safeguard measure. The United States adds that the Panel erred in failing to assess the legal relevance of footnote 1 to the Agreement on Safeguards and Article XXIV of the GATT 1994 to this issue.

95. In considering the appeal of the United States on this point, we turn first to Article 2.1 of the Agreement on Safeguards, which provides that a safeguard measure may only be applied when "such increased quantities" of a "product [are] being imported into its territory … under such conditions as to cause or threaten to cause serious injury to the domestic industry". As we have said, this provision, as elaborated in Article 4 of the Agreement on Safeguards, sets forth the conditions for imposing a safeguard measure.⁹⁴ Article 2.2 of the Agreement on Safeguards, which provides that a safeguard measure "shall be applied to a product being imported irrespective of its source", sets forth the rules on the application of a safeguard measure.⁹⁵ 

96. The same phrase - "product … being imported" - appears in both these paragraphs of Article 2. In view of the identity of the language in the two provisions, and in the absence of any contrary indication in the context, we believe that it is appropriate to ascribe the same meaning to this phrase in both Articles 2.1 and 2.2. To include imports from all sources in the determination that increased imports are causing serious injury, and then to exclude imports from one source from the application of the measure, would be to give the phrase "product being imported" a different meaning in Articles 2.1 and 2.2 of the Agreement on Safeguards. In Article 2.1, the phrase would embrace imports from all sources whereas, in Article 2.2, it would exclude imports from certain sources. This would be incongruous and unwarranted. In the usual course, therefore, the imports included in the determinations made under Articles 2.1 and 4.2 should correspond to the imports included in the application of the measure, under Article 2.2.⁹⁶ 

97. In the present case, the United States asserts that the exclusion of imports from Canada from the scope of the safeguard measure was justified because, following its investigation based on imports from all sources, the USITC conducted an additional inquiry specifically focused on imports from Canada. The United States claims, in effect, that the scope of its initial investigation, together with its subsequent and additional inquiry into imports from Canada, did correspond with the scope of application of its safeguard measure.

98. In our view, however, although the USITC examined the importance of imports from Canada separately, it did not make any explicit determination relating to increased imports, excluding imports from Canada. In other words, although the safeguard measure was applied to imports from all sources, excluding Canada, the USITC did not establish explicitly that imports from these same sources, excluding Canada, satisfied the conditions for the application of a safeguard measure, as set out in Article 2.1 and elaborated in Article 4.2 of the Agreement on Safeguards. Thus, we find that the separate examination of imports from Canada carried out by the USITC in this case was not a sufficient basis for the safeguard measure ultimately applied by the United States.

99. Lastly, we note that the United States has argued that the Panel erred in failing to address Article XXIV of the GATT 1994, and in failing to set out a "basic rationale" for finding that footnote 1 to the Agreement on Safeguards did not affect its reasoning on this issue. In this case, the Panel determined that this dispute does not raise the issue of whether, as a general principle, a member of a free-trade area can exclude imports from other members of that free-trade area from the application of a safeguard measure.⁹⁷ The Panel also found that it could rule on the claim of the European Communities without having recourse to Article XXIV or footnote 1 to the Agreement on Safeguards.⁹⁸ We see no error in this approach, and make no findings on these arguments. 

100. We, therefore, uphold the Panel's finding, in paragraph 8.182 of the Panel Report, that the United States acted inconsistently with its obligations under Articles 2.1 and 4.2 of the Agreement on Safeguards.

VII. Articles 8 and 12 of the Agreement on Safeguards

101. The United States appeals the Panel's findings that the United States acted inconsistently with Articles 12.1(a), 12.1(b), 12.1(c), 12.3 and Article 8.1 of the Agreement on Safeguards. The United States contends that the Panel misinterpreted the requirement of "immediate" notification set forth in Article 12.1, erred in its analysis of the relationship between the various obligations set forth in Articles 12.1, 12.2, and 12.3 of the Agreement on Safeguards, and wrongly entwined the separate obligations set out in these provisions.

A. Article 12.1 of the Agreement on Safeguards

102. Article 12.1 of the Agreement on Safeguards provides:

A Member shall immediately notify the Committee on Safeguards upon:

(a) initiating an investigatory process relating to serious injury or threat thereof and the reasons for it;

(b) making a finding of serious injury or threat thereof caused by increased imports; and

(c) taking a decision to apply or extend a safeguard measure.

Thus, Article 12.1 of the Agreement on Safeguards sets out three separate obligations to make notification to the Committee on Safeguards, each of which is triggered "upon" the occurrence of an event specified in one of the three subparagraphs. The chapeau to Article 12.1 stipulates that the notifications must be made "immediately … upon" the occurrence of the triggering events. (emphasis added)

103. Before turning to the United States' appeal of the Panel's findings under each subparagraph of Article 12.1, we begin with the meaning of the word "immediately" in Article 12.1, since it governs timeliness under all three of these subparagraphs. The Panel found that the obligation to notify "immediately" precludes a Member from "unduly delaying the notification of the decisions or findings mentioned in Article 12.1(a) through (c) SA".⁹⁹ 

104. The United States argues, however, that "immediately" means "without any delay that would interfere with Members' ability to review the measure through the Safeguards Committee or would leave a Member insufficient time to decide whether to request consultations." ¹⁰⁰

105. As regards the meaning of the word "immediately" in the chapeau to Article 12.1, we agree with the Panel that the ordinary meaning of the word "implies a certain urgency".¹⁰¹ The degree of urgency or immediacy required depends on a case-by-case assessment, account being taken of the administrative difficulties involved in preparing the notification, and also of the character of the information supplied. As previous panels have recognized, relevant factors in this regard may include the complexity of the notification and the need for translation into one of the WTO's official languages.¹⁰² Clearly, however, the amount of time taken to prepare the notification must, in all cases, be kept to a minimum, as the underlying obligation is to notify "immediately".

106. "Immediate" notification is that which allows the Committee on Safeguards, and Members, the fullest possible period to reflect upon and react to an ongoing safeguard investigation. Anything less than "immediate" notification curtails this period. We do not, therefore, agree with the United States that the requirement of "immediate" notification is satisfied as long as the Committee on Safeguards and Members of the WTO have sufficient time to review that notification. In our view, whether a Member has made an "immediate" notification does not depend on evidence as to how the Committee on Safeguards and individual Members of the WTO actually use that notification. Nor can the requirement of "immediate" notification depend on an ex post facto assessment of whether individual Members suffered actual prejudice through an insufficiency in the notification period.

107. With this meaning of "immediately" in mind, we turn to the timeliness of the notifications made by the United States under subparagraphs (a) through (c) of Article 12.1. 

1. Notification pursuant to Article 12.1(a)

108. The United States appeals the Panel's finding that the United States did not notify its initiation of a safeguard investigation "immediately", as required by Article 12.1(a) of the Agreement on Safeguards.¹⁰³ 

109. The Panel found that the United States initiated a safeguards investigation regarding imports of wheat gluten on 1 October 1997, and notified the Committee of Safeguards on 17 October 1997 (that is, 16 days later)¹⁰⁴. The Panel noted the "minimal" information contained in that notification, and held that the United States had not acted consistently with its obligation under Article 12.1(a) to notify its initiation of a safeguard investigation "immediately".¹⁰⁵ 

110. On appeal, the United States argues that the notification was submitted "immediately" because it was sufficiently prompt as to allow Members concerned to review the notification and to exercise fully their rights under the Agreement on Safeguards. The United States does not argue that there were any particular reasons that a period of 16 days was needed to make this notification.

111. We recall our analysis of the word "immediately".¹⁰⁶ In this case, the United States' notification under Article 12.1(a) consisted of a single page form attaching a notice from the USITC that it had initiated a safeguard investigation concerning wheat gluten. The USITC notice was published in the United States Federal Register on 1 October 1997.¹⁰⁷ That same document was not notified to the Committee on Safeguards until 17 October 1997.

112. In these circumstances, we see no basis for concluding that the Panel erred in finding that a notification period of 16 days was not "immediate". We, therefore, uphold the Panel's finding that the United States' notification of its investigation of a safeguard measure did not satisfy the requirement of "immediate" notification under Article 12.1(a) of the Agreement on Safeguards.¹⁰⁸

 2. Notification pursuant to Article 12.1(b)

113. The United States appeals the Panel's finding that the United States did not notify its determination of serious injury "immediately", as required by Article 12.1(b) of the Agreement on Safeguards.

114. The Panel found that the USITC made a determination of serious injury caused by increased imports on 15 January 1998, and that the United States notified the Committee on Safeguards of this determination in a communication dated 11 February 1998 (that is, 26 days later).¹⁰⁹ In view of the 26-day time-period taken by the United States to make its notification under Article 12.1(b), the Panel concluded that the United States had not satisfied the requirement to notify its finding of serious injury "immediately".¹¹⁰ 

115. On appeal, the United States makes the same arguments with respect to this finding as it made with respect to the Panel's finding under Article 12.1(a), namely that the notification was submitted "immediately" because it was sufficiently prompt as to allow Members concerned to review the notification and to exercise fully their rights under the Agreement on Safeguards. Once again, the United States does not offer any particular justification for the time-period of 26 days.

116. We recall again our analysis of the word "immediately".¹¹¹ We also note that the 11 February 1998 notification submitted by the United States consisted, in its entirety, of a single page in which the United States indicated that the USITC Report would follow at a later date.¹¹² In these circumstances, we see no basis for concluding that the Panel erred in finding that notification in a period of 26 days was not "immediate". We, therefore, uphold the Panel's finding that the notification made by the United States on 11 February 1998 did not satisfy the requirement of "immediate" notification under Article 12.1(b) of the Agreement on Safeguards.¹¹³

 
3. Notification pursuant to Article 12.1(c)

117. The United States also appeals the Panel's finding that the United States did not notify its decision to apply a safeguard measure "immediately", as required by Article 12.1(c) of the Agreement on Safeguards.

118. The Panel found that, on 30 May 1998, the President of the United States decided to apply, effective 1 June 1998, a safeguard measure on imports of wheat gluten and that, on 4 June 1998 (that is, 5 days after the decision was taken), the United States notified the Committee on Safeguards of the decision to apply a safeguard measure.¹¹⁴ In assessing the timeliness of this notification, the Panel concluded that: 

… the United States notification of this decision after the measure had been implemented, violated the United States obligation under Article 12 SA to make timely notification under Article 12.1 (c) SA of its decision to apply a measure.¹¹⁵ (emphasis added)

119. The United States appeals this finding on the ground that the Panel erred by interpreting Article 12.1(c) of the Agreement on Safeguards as requiring notification of a "decision to apply or extend a safeguard measure" prior to implementation of that decision.

120. In examining the ordinary meaning of Article 12.1(c), we observe that the relevant triggering event is the "taking" of a decision. To us, Article 12.1(c) is focused upon whether a "decision" has occurred, or has been "taken", and not on whether that decision has been given effect. On the face of the text, the timeliness of a notification under Article 12.1(c) depends only on whether the notification was immediate.

121. The Panel considered that Article 12.2 of the Agreement on Safeguards, which, in its opening clause, specifically refers to notifications made pursuant to Articles 12.1(b) and 12.1(c), provides relevant context in determining the timeliness of notifications under Article 12.1(c). Article 12.2 provides:

In making the notifications referred to in paragraphs 1(b) and 1(c), the Member proposing to apply or extend a safeguard measure shall provide the Committee on Safeguards with all pertinent information, which shall include evidence of serious injury or threat thereof caused by increased imports, precise description of the product involved and the proposed measure, proposed date of introduction, expected duration and timetable for progressive liberalization. … (emphasis added)

122. The Panel deduced from this provision that a notification under Article 12.1(c) must be of a "proposed measure" and its "proposed date of introduction", and, on that basis, concluded that a notification under Article 12.1(c) must be made before implementation of the "proposed" safeguard measure.¹¹⁶ 

123. Article 12.2 is related to, and complements, Article 12.1 of the Agreement on Safeguards. Whereas Article 12.1 sets forth when notifications must be made during an investigation, Article 12.2 clarifies what detailed information must be contained in the notifications under Articles 12.1(b) and 12.1(c). We do not, however, see the content requirements of Article 12.2 as prescribing when the notification under 12.1(c) must take place. Rather, in our view, timeliness under 12.1(c) is determined by whether a decision to apply or extend a safeguard measure is notified "immediately". A separate question arises as to whether notifications made by the Member satisfy the content requirements of Article 12.2. Answering this separate question requires examination of whether, in its notifications under either Article 12.1(b) or Article 12.1(c), the Member proposing to apply a safeguard measure has notified "all pertinent information", including the "mandatory components"¹¹⁷ specifically enumerated in Article 12.2.

124. Thus, the obligations set forth under Articles 12.1(b), 12.1(c) and 12.2 relate to different aspects of the notification process. Although related, these obligations are discrete. A Member could notify "all pertinent information" in its Articles 12.1(b) and 12.1(c) notifications, and thereby satisfy Article 12.2, but still act inconsistently with Article 12.1 because the relevant notifications were not made "immediately". Similarly, a Member could satisfy the Article 12.1 requirement of "immediate" notification, but act inconsistently with Article 12.2 if the content of its notifications was deficient.

125. In our view, in finding that the United States acted inconsistently with Article 12.1(c) solely because the decision to apply a safeguard measure was notified after that decision had been implemented, the Panel confused the separate obligations imposed on Members pursuant to Article 12.1(c) and Article 12.2 and, thereby, added another layer to the timeliness requirements in Article 12.1(c). Instead of insisting on "immediate" notification, as stipulated by Article 12.1(c), the Panel required notification to be made both "immediately" and before implementation of the safeguard measure. We see no basis in Article 12.1(c) for this conclusion.

126. In consequence, we reverse the Panel's finding that:

… the United States notification of this decision after the measure had been implemented, violated the United States obligation under Article 12 SA to make timely notification under Article 12.1 (c) SA of its decision to apply a measure.¹¹⁸ 

127. Although we have reversed the Panel's finding on this issue, we believe that we should complete the legal analysis on the basis of the factual findings of the Panel or the undisputed facts in the Panel record.¹¹⁹ In examining the timeliness of the United States' notification under Article 12.1(c), we recall that the United States made the notification to the Committee on Safeguards in a communication dated 4 June 1998, or 5 days after the President of the United States had "taken the decision" to apply the safeguard measure. Although the Panel did not reach the issue of whether the 4 June notification had been submitted "immediately", it nevertheless stated:

We note in passing that the delay of 5 days between the decision to apply a safeguard measure and the notification thereof might well satisfy the requirement of immediate notification of Article 12.1 SA.¹²⁰ 

128. In response to questioning at the oral hearing, the European Communities also accepted that a delay of 5 days "could have been" consistent with the obligation of "immediate" notification under Article 12.1(c).

129. We believe that notification within 5 days was, in this case, consistent with the requirement of "immediacy" contained in Article 12.1(c) of the Agreement on Safeguards. In this regard, we consider it relevant that notification was made the day after the decision of the President of the United States was published in the United States Federal Register,¹²¹ and during the course of the fourth working day following the taking of the decision.¹²² 

130. In sum, as regards the findings made by the Panel under Article 12.1 of the Agreement on Safeguards, we uphold the Panel's findings, in paragraphs 8.197 and 8.199 of the Panel Report, that the United States did not satisfy the requirements of immediate notification set out in Articles 12.1(a) and 12.1(b); and we reverse the Panel's finding, in paragraph 8.207 of the Panel Report, that the United States failed to make timely notification under Article 12.1(c) of the Agreement on Safeguards of its decision to apply a safeguard measure.

B. Article 12.3 of the Agreement on Safeguards

131. The United States further appeals the Panel's findings that the United States acted inconsistently with Article 12.3 of the Agreement on Safeguards. Article 12.3 provides:

A Member proposing to apply or extend a safeguard measure shall provide adequate opportunity for prior consultations with those Members having a substantial interest as exporters of the product concerned, with a view to, inter alia, reviewing the information provided under paragraph 2, exchanging views on the measure and reaching an understanding on ways to achieve the objective set out in paragraph 1 of Article 8.

132. As regards the consistency of the actions taken by the United States with Article 12.3, the Panel stated:

We found above that the United States did not provide a timely notification under Article 12.1 (c) SA of its proposed final measure since the United States notified its decision to apply a measure three days after the measure had been implemented. For the same reason, we find that the United States violated the obligation of Article 12.3 SA to provide adequate opportunity for prior consultations on the measure.¹²³ (emphasis added)

133. It is clear from the above excerpt that the Panel's conclusion that the United States acted inconsistently with Article 12.3 flowed directly ("for the same reason") from its finding that the United States acted inconsistently with Article 12.1(c). In the previous section, we determined that the Panel erred in concluding that the United States acted inconsistently with Article 12.1(c) of the Agreement on Safeguards. Since we have found that the Panel erred in its interpretation of Article 12.1(c), we also believe that the Panel erred in concluding that the United States had "[f]or the same reason … violated the obligation of Article 12.3 SA".

134. The Panel, however, revisited the issue of the adequacy of consultations under Article 12.3 as part of its evaluation of the European Communities' claim under Article 8.1 of the Agreement on Safeguards. The Panel found that: 

While the parties have confirmed that consultations did take place on the basis of the United States notifications under Article 12.1(b) concerning the USITC's finding of serious injury and the USITC's recommendations on remedy, no consultations were held on the final proposed measure as approved by the United States President on 30 May 1998. Therefore, the Panel considers that, while consultations may have been held on the basis of the notifications made by the United States under Article 12.1(b) SA, the United States did not provide "an adequate opportunity for prior consultations" on this final proposed measure, within the meaning of Article 12.3 SA.¹²⁴ 

135. On appeal, the United States argues that it complied with Article 12.3 because, in its notifications under Article 12.1(b) of the Agreement on Safeguards, the United States supplied all the information required by Article 12.2 of that Agreement. As a result, the United States contends that, prior to consultations, the European Communities knew the precise product under consideration, the evidence of serious injury caused by increased imports, and all relevant details relating to the proposed measure. The United States concludes, therefore, that it provided the European Communities with an "adequate opportunity for prior consultations", as required by Article 12.3 of the Agreement on Safeguards.

136. We note, first, that Article 12.3 requires a Member proposing to apply a safeguard measure to provide an "adequate opportunity for prior consultations" with Members with a substantial interest in exporting the product concerned. Article 12.3 states that an "adequate opportunity" for consultations is to be provided "with a view to": reviewing the information furnished pursuant to Article 12.2; exchanging views on the measure; and reaching an understanding with exporting Members on an equivalent level of concessions. In view of these objectives, we consider that Article 12.3 requires a Member proposing to apply a safeguard measure to provide exporting Members with sufficient information and time to allow for the possibility, through consultations, for a meaningful exchange on the issues identified. To us, it follows from the text of Article 12.3 itself that information on the proposed measure must be provided in advance of the consultations, so that the consultations can adequately address that measure. Moreover, the reference, in Article 12.3, to "the information provided under" Article 12.2, indicates that Article 12.2 identifies the information that is needed to enable meaningful consultations to occur under Article 12.3. Among the list of "mandatory components"¹²⁵ regarding information identified in Article 12.2 are: a precise description of the proposed measure, and its proposed date of introduction. 

137. Thus, in our view, an exporting Member will not have an "adequate opportunity" under Article 12.3 to negotiate overall equivalent concessions through consultations unless, prior to those consultations, it has obtained, inter alia, sufficiently detailed information on the form of the proposed measure, including the nature of the remedy.

138. With these considerations in mind, we examine whether, in this case, the Panel erred in finding that the United States did not provide the European Communities with an "adequate opportunity for prior consultations" on the proposed safeguard measure, as required by Article 12.3 of the Agreement on Safeguards.

139. The Panel found that the United States and the European Communities held consultations on 24 April 1998 and 22 May 1998,¹²⁶ and that these consultations were held on the basis of the information provided by the United States in its notifications under Article 12.1(b),¹²⁷ that is, on the basis of the information contained in the USITC Report. The Panel also found, as a matter of fact, that no consultations were held on the final measure that was approved by the United States President on 30 May 1998.¹²⁸ 

140. We note that the USITC Report set out a number of "recommendations" to the President of the United States, including:

… that, within the overall quantitative restriction, the President allocate separate quantitative restrictions for the European Union, Australia, and "all other" non-excluded countries, taking into account the disproportional growth and impact of imports of wheat gluten from the European Union …¹²⁹ 

141. We note that the recommendations made by the USITC did not include specific numerical quota shares for the individual exporting Members concerned, and the recommendations imply, without providing details, that the individual quota shares could be less favourable to imports from the European Communities. We consider that these "recommendations" did not allow the European Communities to assess accurately the likely impact of the measure being contemplated, nor to consult adequately on overall equivalent concessions with the United States.

142. Accordingly, we see no error in the Panel's conclusion that the United States' notifications under Article 12.1(b) did not provide a description of the measure under consideration sufficiently precise as to allow the European Communities to conduct meaningful consultations with the United States, as required by Article 12.3 of the Agreement on Safeguards.¹³⁰ 

143. We, therefore, uphold the Panel's finding that the United States did not comply with its obligation under Article 12.3 of the Agreement on Safeguards to provide an adequate opportunity for prior consultations on the proposed safeguard measure.

89. Panel Report, paras. 8.155 and 8.156.

90. Ibid., para. 8.182.

91. Ibid., para. 8.161.

92. USITC Report, p. I-19.

93. Ibid., p. I-29.

94. See, supra, para. 76; Appellate Body Report, Argentina – Footwear Safeguards, supra, footnote 22, para. 112.

95. Ibid

96. The United States relies on Article 9.1 of the Agreement on Safeguards in support of its argument that the scope of the serious injury investigation need not correspond exactly to the scope of application of a safeguard measure. Article 9.1 is an exception to the general rules set out in the Agreement on Safeguards that applies only to developing country Members. We do not consider that it is of relevance to this appeal.

97. Panel Report, 8.183.

98. Ibid., para. 8.181.

99. Panel Report, para. 8.194.

100. United States' appellant's submission, para. 208.

101. Panel Report, para. 8.193.

102. Panel report, para. 7.128, Korea – Dairy Safeguard, WT/DS98/R, adopted, 12 January 2000, as modified by the Appellate Body Report, supra, footnote 29, quoted in para. 8.193 of the Panel Report.

103. Panel Report, para. 8.197.

104. Ibid., para. 8.191; G/SG/N/6/USA/4.

105. Ibid., para. 8.196.

106. Supra, paras. 103-106.

107. United States Federal Register, 1 October 1997 (Volume 62, Number 190), pp. 51488-51489.

108. Panel Report, para. 8.197.

109. G/SG/N/8/USA/2.

110. Panel Report, para. 8.199.

111. Supra, paras. 103-106.

112. G/SG/N/8/USA/2. Panel Report., para. 8.191. The USITC Report was sent to the President of the United States on 18 March 1998, and forwarded, along with a revised Article 12.1(b) notification, to the Committee on Safeguards on 24 March 1998. G/SG/N/8/USA/2/Rev.1.

113. Panel Report, para. 8.199.

114. G/SG/N/10/USA/2 and G/SG/N/11/USA/2.

115. Panel Report, para. 8.207.

116. Panel Report, paras. 8.202, 8.205 and 8.206.

117. Appellate Body Report, Korea – Dairy Safeguard, supra, footnote 29, para. 107.

118. . Panel Report, para. 8.207.

119. For example, in Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3, at 18 ff; Appellate Body Report, Canada – Certain Measures Concerning Periodicals, WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, 449, at 468 ff; Appellate Body Report, European Communities – Measures Affecting the Importation of Certain Poultry Products ("European Communities – Poultry"), WT/DS69/AB/R, adopted 23 July 1998, paras. 154 ff; Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, paras. 123 ff; and, Appellate Body Report, Australia – Measures Affecting Importation of Salmon ("Australia – Salmon"), WT/DS18/AB/R, adopted 6 November 1998, paras. 117 ff.

120. Panel Report, para. 8.207.

121. United States Federal Register, 3 June 1998 (Volume 63, Number 106), pp. 30363-30364.

122. The decision to apply the measure was taken by the United States President on 30 May, 1998, a Saturday. The measure came into effect on Monday, 1 June, and notification was made on the following Thursday, 4 June 1998.