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AUSTRALIA - MEASURES AFFECTING IMPORTATION OF SALMON
The report of the Panel on Australia - Measures Affecting Importation of Salmon
- Recourse to Article 21.5 by Canada - is being circulated to all Members,
pursuant to the DSU. The report is being circulated as an unrestricted document
from 18 February 2000 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. There shall be no ex parte
communications with the Panel or Appellate Body concerning matters under
consideration by the Panel or Appellate Body.
(iii) The Tasmanian Import Ban
(b) The third requirement: "The evaluation of the likelihood � according to the
sanitary � measures that might be applied"
(a) No consumer-ready requirements (b) Different consumer-ready requirements
Annex 1 - Transcript of the Joint Meeting with Experts, held on 8 December 1999
Annex 2 - Revised Working Procedures
1.1 On 6 November 1998, the Dispute Settlement Body (DSB) adopted the Appellate
Body report on Australia - Measures Affecting Importation of Salmon
(WT/DS18/AB/R) and the panel report (WT/DS18/R), as modified by the Appellate
Body report, requesting that Australia bring its measures into conformity with
the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
Agreement). On 23 February 1999, the Arbitrator, appointed in accordance with
Article 21.3(c) of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), decided that the reasonable period of time to
implement the rulings and recommendations of the DSB in this case would expire
on 6 July 1999.
1.2 On 15 July 1999, Canada announced its intention to request authorization
from the DSB to suspend the application to Australia of tariff concessions and
related obligations under the General Agreement on Tariffs and Trade 1994,
pursuant to Article 22.2 of the DSU (WT/DS18/12).
1.3 At the meeting of the DSB held on 27 and 28 July 1999, Australia informed
the DSB that it had fully implemented the DSB's recommendations through an
Australian Quarantine and Inspection Service (AQIS) decision of 19 July 1999. At
the same meeting, Canada requested the establishment of a panel pursuant to
Article 21.5 of the DSU. The DSB agreed that the Article 21.5 request be
referred to the original Panel. The DSB also agreed, at the request of
Australia, that the matter would be referred to arbitration to determine the
level of suspension of concessions, pursuant to Article 22.6 of the DSU. Canada
and Australia agreed that the arbitration proceedings would be held in abeyance
until after the circulation of the panel report under Article 21.5. If the
Article 21.5 Panel found that Australia had acted inconsistently with its WTO
obligations, then Australia and Canada would request the immediate resumption of
the Article 22.6 arbitration, regardless of whether either party appealed the
Article 21.5 panel report.
1.4 The European Communities, Norway and the United States reserved their
third-party rights in the 21.5 panel proceedings.
A. TERMS OF REFERENCE
1.5 The following standard terms of reference applied to the work of the Panel: "To examine, in the light of the relevant provisions of the covered agreements
cited by Canada in document WT/DS18/14, 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".
B. PANEL COMPOSITION
1.6 The Panel was composed as follows:
Chairman:
Mr. Michael Cartland Members:
1.7 The Panel met with the parties, the third parties and the experts advising
the Panel on 8-10 December 1999. The Panel submitted its report to the parties
on 31 January 2000.
II. FACTUAL ASPECTS
A. GENERAL
1. Salmon
2.1 The product subject to the dispute is, as in the original case, fresh
chilled and frozen salmon product, from Canada, destined for human consumption.
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 "fresh chilled or frozen salmon".1
2.2 In Canada, there are five sources of uncooked salmon for export2: (i) adult, wild, ocean-caught Pacific salmon; (ii) adult, wild, freshwater-caught Pacific salmon; (iii) adult, Pacific salmon cultured in seawater on the Pacific coast; (iv) adult, Atlantic salmon cultured in seawater on the Pacific coast; and (v) adult, Atlantic salmon cultured in seawater on the Atlantic coast.
2.3 Australia has imposed restrictions on the importation of fresh chilled and
frozen salmon from Canada since 1975, on the basis that importation of Canadian
salmon could result in the introduction of exotic disease agents into Australia,
with negative consequences for the health of fish in Australia. In the original
dispute, Australia identified 24 disease agents of concern associated with the
importation of Canadian salmon. On the basis of the 1999 Import Risk Analysis on
Non-Viable Salmonids and Non-Salmonid Marine Finfish3 (hereafter the 1999 IRA),
Australia identified six disease agents associated with Canadian salmon as
requiring risk management measures in addition to evisceration (see paragraph
2.17)
2.4 With respect to international trade in fish, the OIE identifies three of the
diseases of concern to Australia as "notifiable diseases" (infectious
haematopoietic necrosis (IHN), viral haemorrhagic septicaemia (VHS), and
oncorhynchus masou virus), and five others as "significant diseases" (bacterial
kidney disease (BKD) or Renibacterium salmoninarum (R. salmoninarum); infectious
pancreatic necrosis (IPN); infectious salmon anaemia (ISA); Gyrodactylus salaris
and piscirickettsiosis (Piscirickettsia salmonis)). To avoid the introduction of
these disease agents with the importation of fresh chilled or frozen fish, the
OIE recommends that fish be eviscerated before importation.4
2.5 The disease agents at issue in this dispute are not of concern from a human
health perspective.
B. THE 1999 IMPORT RISK ANALYSES
2.6 Following the conclusions of the original dispute, AQIS undertook further
import risk analyses with respect to fresh chilled and frozen salmon for human
consumption ("non-viable salmonids"), other non-viable marine finfish, and,
separately, live ornamental fish. Drafts of the various chapters of the 1999 IRA
were published electronically and updated regularly on the AQIS home page. The
complete 1999 IRA was published in July 1999, and version published in book form
(also dated July 1999) was issued on 12 November 1999.
2.7 The 1999 IRA considers the animal health risks potentially associated with
the importation into Australia of non viable salmonids and other marine finfish
from any country. It is a generic import risk analysis, addressing all potential
relevant pests and diseases, for all members of the family Salmonidae, as well
as Ayu or sweetfish, and all other finfish species caught in marine or brackish
waters.
2.8 The 1999 IRA drew on information contained in the previous salmon import
risk analyses conducted by Australia5, as well as on the New Zealand salmon risk
analyses of 1994-97.
2.9 The base products considered in the 1999 IRA are eviscerated salmonids and
whole, not eviscerated (round) non-salmonid marine finfish. Whole, eviscerated
salmonids are sold for human consumption; non-viable, not eviscerated non-salmonid
marine finfish may be used for human consumption, as feed for fish, as fishing
bait or for further processing (e.g. for pet food).
2.10 The 1999 IRA first identifies the disease agents of concern requiring
further consideration. A disease agent is given specific consideration in the
1999 IRA if it is infectious, and either exotic to Australia or present in
Australia but subject to official control, and if the disease agent is OIE-listed
or would be expected to cause significant harm in Australia. On the basis of
these criteria, the disease agents of concern are categorized into those whose
consideration is of higher priority or lower priority.
2.11 For each of the 15 "higher priority" diseases (called Group 1 diseases),
the 1999 IRA identifies the factors affecting the probability of a disease agent
entering and becoming established in Australia - also called the release and
exposure assessments. The factors enumerated in this respect are: (a) The probability of the disease agent being present in the source
country/region of the commodity, and if present, its prevalence. The 1999 IRA
states that in examining the available data, account was taken of the extent of
surveillance and monitoring by competent authorities in the exporting countries. (b) The probability of the disease agent being present in an infective form in
the commodity on entering Australia. This includes consideration of lifecycle
stages (for example, the higher prevalence of disease agents in juvenile and/or
sexually mature fish); the origin of the fish (i.e. wild vs. farmed); local
dispersal of some disease agents, and time of the year, as well as of inspection
and grading of fish. Washing, cold storage or other handling procedures may
reduce some risks. Also relevant in this regard is the probability of a disease
agent being present in the particular tissues imported, including the blood,
skin, etc. (c) The probability of the disease agent in an infective form entering the
aquatic environment of Australia. This depends on the processing, end-use and
disposal of the commodity and the capacity of the disease agent to persist, in
an infective form, in the commodity after processing, use or disposal. The 1999
IRA details the possible pathways which might be followed by a product imported
for human consumption eventually reaching the aquatic environment. With regard
to salmon for human consumption, the 1999 IRA identifies as of greatest concern
the risks associated with disposal of wastes from the further commercial
processing of salmon within Australia. (d) The probability of the disease agent, having entered the aquatic
environment, establishing infection in susceptible hosts. This depends on the
capacity of the disease agent to survive in the aquatic environment, in an
infective form, and the ease of infection of susceptible hosts and subsequent
transmission of infection to others within a population. The 1999 IRA describes the probability of an event occurring as: high:
event would be expected to occur
moderate:
less than an even chance of the event occurring
low:
event would be unlikely to occur very low:
event would occur rarely extremely low: event would occur very rarely negligible:
chance of event occurring is so small that it can be ignored in
practical terms. The 1999 IRA notes that these categories are not equidistant from each other,
and that most fall into the range of being greater than zero but less than 50
per cent.
2.12 The 1999 IRA subsequently identifies the biological and consequential
effects of the establishment of a new disease agent on the affected fishery
industry and on the environment. In considering the "consequence assessment",
the 1999 IRA indicates that the effects of a disease can generally be
ameliorated by the adoption of methods for control or eradication, but that
these measures have associated costs which must also be taken into
consideration. The 1999 IRA notes that the biological effect of the
establishment of disease is normally evaluated in terms of morbidity and
mortality rates, and the costs associated with controlling or eradicating the
disease. The economic effect of the establishment of disease is normally
evaluated in terms of the costs arising from the biological effects and the
commercial implications for domestic and international marketing of affected
animals and products. The establishment of disease may also affect the
environment in ways which are not easily evaluated in economic terms.
2.13 The key factors used in the 1999 IRA to classify the significance of the
establishment of a disease are: (a) the biological effects on aquatic species; (b) the availability, cost and effectiveness of methods for control or
eradication; (c) the economic effects at the enterprise, industry or national level,
including the effects on the marketing of the product; and (d) the effects on native species and the environment, including any loss of
social amenity. The level of significance of the establishment of a disease is categorized as: catastrophic:
significant economic harm at the national level or serious,
irreversible harm high:
high mortality or morbidity rates for a prolonged period, not amenable to
moderate: significant economic harm at enterprise or regional level; diseases
may be amenable to control or of temporary effects low:
mild biological consequences, amenable to control; economic harm limited negligible: no significant biological consequences or transient.
2.15 After this consideration of the "higher priority" diseases (called the
Group 1 diseases), the 1999 IRA reviews the "lower priority" diseases (called
the Group 2 diseases). The 1999 IRA concludes that with the implementation of
measures required for Group 1 diseases, the risks associated with the Group 2
diseases will also meet Australia's appropriate level of protection and that no
additional measures are required to address risk related to Group 2 diseases.
2.16 The 1999 IRA also indicates that as the seven diseases of concern are
either not reported in New Zealand or (for whirling disease) occur at extremely
low prevalence in New Zealand Pacific salmon, the selected measures will not
apply to Pacific salmon from New Zealand.
2.17 The 1999 IRA concludes that there are seven disease agents requiring risk
management measures beyond evisceration: Infectious haematopoietic necrosis virus (IHNV); The seventh disease agent, whirling disease, is not known to occur in Canada and
is thus not at issue here. The further measures imposed on imports from Canada
are those described below.
C. MEASURES REGARDING IMPORTS OF FRESH CHILLED OR FROZEN SALMON FROM CANADA
2.18 Specific import restrictions on salmonid products were introduced by
Quarantine Proclamation No 86A of 21 February 1975. This and all other
Quarantine Proclamations were revoked by the Quarantine Proclamation 1998, on 7
July 1998. Section 43 of Quarantine Proclamation 1998 deals with the importation
of fish of the Salmonidae family. This Section was subsequently amended in May
1999 and in September 1999.6 With effect as of 28 September 1999, Section 43 now
reads as follows: "43 Importation of fish of family Salmonidae or Plecoglossidae (1) The importation into Australia of fish of the family Salmonidae or
Plecoglossidae, or any part of such a fish, in any form (including canned fish,
dried fish, processed fish and fish meal) is prohibited. (2) The importation into Australia of the roe or caviar of fish of the family Salmonidae or Plecoglossidae is prohibited. (3) However, subsections (1) and (2) are not taken to prohibit the importation
of: (a) canned fish, roe or caviar of fish of those families; or (b) smoked fish of those families: (i) accompanied into Australia by the person wishing to import it; and (ii) in an amount of up to 5 kilograms; and (iii) produced by a manufacturer approved by a Director of Quarantine; or (c) salmon oil, for the personal consumption or use of the person wishing to
import it, in a quantity of no more than 3 months' supply for that use. (4) Also, subsections (1) and (2) are not taken to prohibit the importation of
products of fish of those families otherwise permitted under item 1, 2 or 5 of
table 13. (5) Also, subsections (1) and (2) are not taken to prohibit the importation by a
person of fish, fish parts, roe or caviar of those families if a Director of
Quarantine has granted the person a permit to import the fish, fish parts, roe
or caviar into Australia." Quarantine Proclamation 1998 is implemented through various Animal Quarantine
Policy Memoranda (AQPM), as described below.
2.19 AQPM 1999/51, published and effective as of 19 July 1999, contains the
outcomes of the risk analyses and the criteria to be used when deciding whether
to grant import permits. Policies regarding salmonids as they apply to Canada
are detailed in attachment 1 of AQPM 1999/51: "Where delegates grant permits, under sub-section 43 of the Quarantine
Proclamation 1998, to import non-viable uncanned salmonid finfish, they should
apply the following policies: In recognition of the health status of New Zealand, salmonids other than rainbow
trout would be permitted import under the above policies, except that it would
not be required that the head and gills be removed. Product from countries other than New Zealand derived from non-viable salmonids
meeting these policies will be released from quarantine if imported in
consumer-ready form. For the purpose of these policies, consumer ready product
is product that is ready for the householder to cook/consume, such as cutlets,
fillets (without skin), skin-on fillets if less than 450g weight and headless
fish of 'pan-size' (i.e. less than 450g weight). Product that has been cooked
for human consumption (eg canned, hot smoked, flash fried) is also regarded as
consumer-ready product. Imported head-off, gilled and gutted salmonids of
greater than 450g weight (i.e. not consumer ready) should be processed to
consumer-ready form in premises approved by AQIS before release from
quarantine."
2.20 The conditions to be applied to processing plants were outlined in the 1999
IRA. This indicates that AQIS would address applications for approval of
premises on a case-by-case basis. Commercial processing would not be permitted
in regions where there are economically significant populations of salmonid
fish. AQIS would accept discharge of liquid waste into a municipal sewage
system, or treatment of waste on site, providing that processing and dilution
was judged to be sufficient to reduce risk to an acceptable level. Premises
approved for the further processing of imported salmonids would have to be
located so as to allow quarantine inspectors and auditors regular access. In
addition, AQIS would take into account, inter alia, the nature of imported
product, the intended processing and the volume and type of waste that would be
produced; control of scavengers and pests around the plant; competency of
management and availability of competent personnel to supervise
quarantine-approved processes; and systems of maintenance for appropriate
records of the processing of imported product and waste disposal. Individual
plants wishing to process imported product to consumer-ready stage or beyond
must enter into a compliance agreement with AQIS. Comments on proposed
compliance agreements were solicited on 2 August 1999, and a compliance manual
for incorporation into a compliance agreement was finalized and made publicly
available on 30 September 1999. To date, AQIS has not received any requests from
premises for approval to further process imported head-off, gilled and gutted
salmonids to consumer-ready form.
1 The importation of live salmonids is
not at issue.
2 Only adult salmon are harvested for
export.
3 Import Risk Analysis on Non-Viable
Salmonids and Non-Salmonid Marine Finfish, Australian Quarantine and
Inspection Service, July 1999 ("1999 IRA"). When referring to the "1999 IRA"
in this report, we mean the version that was submitted by Australia as
Exhibit A to its first submission. We note that a later and final version was
published in book form on 12 November 1999. At the request of the Panel,
copies of the 12 November version were submitted to the Panel at our meeting
with the parties on 10 December 1999.
4 OIE International Aquatic Animal
Health Code; OIE Code (1997).
5 Draft Import Risk Analysis - Disease
risks associated with the importation of uncooked, wild, ocean-caught Pacific
salmon product from the USA and Canada, Australian Quarantine and Inspection
Service, May 1995, (the "1995 Draft Report") and the Australian Salmon Import
Risk Analysis, Australian Quarantine and Inspection Service, Australian
Department of Primary Industries and Energy, December 1996, (the "1996 Final
Report").
6 Quarantine Amendment Proclamation
1999, gazetted on 4 May 1999, and Quarantine Amendment Proclamation 1999
(No.2), gazetted on 28 September 1999, respectively.
To continue with 2. Animal Quarantine Policy Memorandum 1999/69 (AQPM 1999/69) Importation of
Uncanned Salmonid Product |
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