WORLD TRADE
ORGANIZATIONWT/DS245/AB/R
26 November 2003
(03-6276)
Original:  English
JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
AB-2003-4
Report of the Appellate BodyWT/DS245/AB/R
Page i
I. Introduc tion ................................................................................................................. .1
II. Background .................................................................................................................. 4
A. The Disease at Issue .............................................................................................. 4
B. The Product at Issue .............................................................................................. 5
C. The Measure at Issue ............................................................................................. 7
III. Arguments of the Participants  and the Third Particip ants .................................................. 9
A. Claims of Error by Japan – Appellant ................................................................... 9
1. Article 2.2 of the  SPS Agreement ............................................................ 9
2. Article 5.7 of the  SPS Agreement ............................................................ 12
3. Article 5.1 of the  SPS Agreement ............................................................ 15
4. Article 11 of the DSU ............................................................................... 18
(a) The Panel's objective assessment under Article 2.2 of the
SPS Agreement ............................................................................. 18
(b) The Panel's objective assessment under Article 5.1 of the
SPS Agreement ............................................................................. 19
B. Arguments of the United States – Appellee ............................................................ 20
1. Article 2.2 of the  SPS Agreement ............................................................ 20
2. Article 5.7 of the  SPS Agreement ............................................................ 22
3. Article 5.1 of the  SPS Agreement ............................................................ 24
4. Article 11 of the DSU ............................................................................... 26
(a) The Panel's objective assessment under Article 2.2 of the
SPS Agreement ............................................................................. 26
(b) The Panel's objective assessment under Article 5.1 of the
SPS Agreement ............................................................................. 27
C. Claim of Error by the United States – Appellant ................................................... 28
D. Arguments of Japan – Appellee ............................................................................. 31
E. Arguments of the Third Participants ...................................................................... 33
1. Australia.................................................................................................... 33
2. Brazil......................................................................................................... 36
3. European Co mmunities............................................................................. 36
4. New Zealand............................................................................................. 38
IV. Preliminary Issue:  Sufficie ncy of the Notice of Appeal .................................................... 41
V. Issues Raised in This Appeal .............................................................................................. 45
VI. Claim on the "Author ity" of the Panel................................................................................ 46WT/DS245/AB/R
Page ii
VII. Article 2.2 of the  SPS Agreement ...................................................................................... 51
A. Apples Other Than Mature, Symptomless Apples .................................................. 54
B. Mature, Symptomless Apples ................................................................................. 59
VIII. Article 5.7 of the  SPS Agreement ...................................................................................... 62
A. The Insufficiency of Relevant Scientific Evidence .................................................. 63
B. Japan's Argument on "Scientific Uncertainty" ...................................................... 66
C. The Panel's Reliance on a "History of 200 Years of Studies and Practical
Experience" ............................................................................................................ 67
IX. Article 5.1 of the  SPS Agreement ...................................................................................... 68
A. Evaluating the Likelihood of Entry, Establishment or Spread of Fire Blight........ 71
B. Evaluating the Likelihood of Entry, Establishment or Spread of Fire Blight
"According to the Sanitary or Phytosanitary Measures Which Might BeApplied" ................................................................................................................. 76
C. Consideration of Scientific Evidence Arising Subsequent to the Risk
Assessment at Issue ................................................................................................ 77
X. Article 11 of  the DSU ........................................................................................................ .7 9
A. The Panel's Characterization of Experimental Evidence ...................................... 83
B. Evidence "Centered Around" Mature, Symptomless Apple Fruit .......................... 84
C. Experts' Statements of Caution .............................................................................. 86
D. Completion of the Pathway and "Theoretical Risk" .............................................. 89
XI. Findings and Conclusions................................................................................................... 9 1
ANNEX 1: Notification of an Appeal by Japan under paragraph 4 of Article 16 of
the  Understanding on Rules and Procedures Governing the Settlement
of DisputesWT/DS245/AB/R
Page iii
TABLE OF CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of
Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII,
3327
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated
Coconut , WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard
Measures Relating to Certain Agricultural Products , WT/DS207/AB/R,
adopted 23 October 2002
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting
Asbestos and Asbest os-Containing Products , WT/DS135/AB/R, adopted
5 April 2001
EC – Bananas III Appellate Body Report, European Communities – Regime for the
Importation, Sale and Di stribution of Bananas , WT/DS27/AB/R,
adopted 25 September 1997, DSR 1997:II, 591
EC – Bed Linen(Article 21.5 – India)
 Appellate Body Report, European Communities – Anti-Dumping Duties
on Imports of Cotton-Type  Bed Linen from India, Recourse to Article
21.5 of the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat
Products (Hormones) , WT/DS26/AB/R, WT /DS48/AB/R, adopted
13 February 1998, DSR 1998:I, 135
EC – Sardines Appellate Body Report, European Communities – Trade Description of
Sardines , WT/DS231/AB/R, adopted 23 October 2002
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties
on Malleable Cast Iron Tube or Pipe Fittings from Brazil ,
WT/DS219/AB/R, adopted 18 August 2003
India – QuantitativeRestrictions
 Appellate Body Report, India – Quantitative Restrictions on Imports of
Agricultural, Textile and Industrial Products , WT/DS90/AB/R, adopted
22 September 1999, DSR 1999:IV, 1763
Japan – AgriculturalProducts II
 Appellate Body Report, Japan – Measures Affecting Agricultural
Products , WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples ,
WT/DS245/R, 15 July 2003
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages ,
WT/DS75/AB/R, WT/D S84/AB/R, adopted 17 February 1999,
DSR 1999:I, 3
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on
Imports of Certain Dairy Products , WT/DS98/AB/R, adopted
12 January 2000, DSR 2000:I, 3
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on
Certain Corrosion-Resist ant Carbon Steel Flat Products from Germany ,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002WT/DS245/AB/R
Page iv
Short Title Full Case Title and Citation
US – Countervailing
Measures on Certain
EC Products Appellate Body Report, United States – Countervailing Measures
Concerning Certain Products from the European Communities ,
WT/DS212/AB/R, adopted 8 January 2003
US – Offset Act(Byrd Amendment
 )Appellate Body Report, United States – C ontinued Dumping and
Subsidy Offset Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R,
adopted 27 January 2003
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain
Shrimp and Shrimp Products , WT/DS58/AB/R, adopted
6 November 1998, DSR 1998:VII, 2755
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures
on Imports of Certain Steel Products , WT/DS248/AB/R,
WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R,WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R,
WT/DS259/AB/R, 10 November 2003
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures
on Imports of Wheat Gluten from the European Communities ,
WT/DS166/AB/R, adopted 19 January 2001
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of
Woven Wool Shirts and Blouses from India , WT/DS33/AB/R and
Corr.1, adopted 23 May 1997, DSR 1997:I, 323WT/DS245/AB/R
Page 1
WORLD TRADE ORGANIZATION
APPELLATE BODY
Japan – Measures Affecting the
Importation of Apples
Japan,  Appellant/Appellee
United States,  Appellant /Appellee
Australia, Third Participant
Brazil, Third Participant
European Communities, Third Participant
New Zealand, Third Participant
Separate Customs Territory of Taiwan,
Penghu, Kinmen, and Matsu, Third ParticipantAB-2003-4
Present:Lockhart, Presiding Member
Baptista, Member
Sacerdoti, Member
I. Introduction
1. Japan and the United States appeal certain issues of law and legal interpretations in the Panel
Report,  Japan – Measures Affecting the Importation of Apples   (the "Panel Report"). 1  The Panel was
established to consider a complaint by the United States concerning certain requirements and
prohibitions imposed by Japan with respect to the importation of apple fruit from the United States.
2. Following consultations that failed to resolve the dispute, the United States requested on
7 May 2002 that a panel be established to examine the matter on the basis of "measures" maintainedby Japan that "restrict[] the importation of US apples in connection with fire blight or the fire blightdisease-causing organism,  Erwinia amylovora ."
 2  On 3 June 2002, the Dispute Settlement Body (the
"DSB") established the Panel with the following terms of reference, in accordance with Article 7.1 ofthe  Understanding on Rules and Procedures Governing the Settlement of Disputes  (the "DSU"):
… To examine, in the light of the relevant provisions of the covered
agreements cited by the United States in document WT/DS245/2, the
matter referred to the DSB by the United States in that document and
to make such findings as will assist the DSB in making therecommendations or in giving the rulings provided for in those
agreements.
 3
                                                     
1WT/DS245/R, 15 July 2003.
2Request for the Establishment of a Panel by the United States, WT/DS245/2, 8 May 2002.
3Constitution of the Panel Established at the Request of the United States, WT/DS245/3, 17 July 2002,
para. 2.WT/DS245/AB/R
Page 2
Australia, Brazil, the European Communities, New Zealand, and the Separate Customs Territory of
Taiwan, Penghu, Kinmen, and Matsu reserved their right to participate before the Panel as thirdparties.
3. Before the Panel, the United States claimed that Japan was acting inconsistently with
Articles 2.2, 5.1, 5.2, 5.6, 5.7, and 7 of the  Agreement on the Application of Sanitary and
Phytosanitary Measures  (the " SPS Agreement ") and Annex B thereto;  Article 4.2 of the  Agreement
on Agriculture ;    and Article XI of the  General Agreement on Tariffs and Trade 1994
(the "GATT 1994").
 4  In the Panel Report, circulated to Members of the World Trade Organization
(the "WTO") on 15 July 2003, the Panel found that Japan's phytosanitary measure:
(i) is maintained "without sufficient scientif ic evidence", inconsistent with Japan's
obligation under Article 2.2 of the  SPS Agreement ;
(ii) does not qualify as a provisional measure under Article 5.7 of the  SPS Agreement
because it was not imposed in respect of a situation "where relevant scientific
evidence [was] insufficient";  and
(iii) is not based on a "risk assessment" within the meaning of Article 5.1 of the
SPS Agreement . 5
4. As to the claims of inconsistency with Article 7 of the  SPS Agreement  and Annex B thereto,
the Panel found that the United States had failed to establish a  prima facie  case under those
provisions.  Furthermore, having found the measure to be inconsistent with Japan's obligations underArticles 2.2, 5.7, and 5.1 of the  SPS Agreement ,  the Panel determined that resolution of several of the
remaining claims under other provisions was unnecessary, as such findings would not assist the DSB
in making its recommendations and rulings so as to allow for prompt compliance by Japan.
Therefore, in an exercise of judicial economy, the Panel declined to rule on the United States' claimsunder Articles 5.2 and 5.6 of the  SPS Agreement , Article 4.2 of the  Agreement on Agriculture , and
Article XI of the GATT 1994.
 6  In the light of its findings, the Panel recommended that "the Dispute
                                                     
4The United States had also raised claims under Articles 2.3, 5.3, 5.5, and 6.1-6.2 of the
SPS Agreement  in its request for the establishment of a panel.  The Panel observed, however, that the
United States did not pursue these claims in any of its submissions.  Accordingly, the Panel concluded that theUnited States had not made a  prima facie  case for any of these claims and therefore declined to make
corresponding findings. (Panel Report, para. 8.334)
5Ibid. , para. 9.1(a)-(c).
6Ibid. , paras. 8.292, 8.303, 8.328, and 8.332.WT/DS245/AB/R
Page 3
Settlement Body request Japan to bring the phytosani tary measure in dispute into conformity with its
obligations under the  SPS Agreement ." 7
5. On  28 August 2003, Japan notified the DSB of its intention to appeal certain issues of law
developed in the Panel Report and certain legal interpretations developed by the Panel, pursuant to
Article 16 of the DSU, and filed a Notice of Appeal pursuant to Rule 20 of the  Working Procedures
for Appellate Review  (the " Working Procedures "). 8  On 8 September 2003, Japan filed an appellant's
submission. 9  The United States filed an appellee's submission on 22 September 2003. 10  In addition
to Japan's appeal, the United States cross-appealed the Panel Report by filing an other appellant'ssubmission on 12 September 2003.
 11  With respect to this cross-appeal, Japan filed an appellee's
submission on 22 September 2003. 12  On that same day, Australia, Brazil, the European
Communities, and New Zealand filed third participants' submissions 13, and the Separate Customs
Territory of Taiwan, Penghu, Kinmen, and Matsu notified its intention to attend and make statementsat the oral hearing.
 14
6. The oral hearing in this appeal was held on 13 October 2003.  The participants and third
participants presented oral statements (with the exception of the Separate Customs Territory ofTaiwan, Penghu, Kinmen, and Matsu) and responded to questions put to them by the Members of theDivision hearing the appeal.
7. Our analysis in this Report proceeds as follows:  
• we begin with a brief factual background and an examination of the scope of the dispute,
including the nature and history of the plant disease at issue, the products addressed bythe Panel in its analysis, and the measure challenged by the United States
 15;
• we then set out the arguments of the participants and third participants on appeal;
                                                     
7Panel Report, para. 9.3.
8Notification of an Appeal by Japan, WT/DS245/5, 28 August 2003, attached as Annex 1 to this
Report.  Japan's Notice of Appeal challenges only certain findings made by the Panel in the course of its
analysis under the SPS Agreement ;  there are no issues on appeal related to the  Agreement on Agriculture   or to
the GATT 1994.
9Pursuant to Rule 21(1) of the Working Procedures .
10Pursuant to Rule 22(1) of the Working Procedures .
11Pursuant to Rule 23(1) of the Working Procedures .
12Pursuant to Rule 23(3) of the Working Procedures .
13Pursuant to Rule 24(1) of the Working Procedures .
14Pursuant to Rule 24(2) of the Working Procedures .
15Additional factual aspects of this dispute are set out in greater detail in paragraphs 2.1-2.32 of the
Panel Report.WT/DS245/AB/R
Page 4
• we next identify the issues raised before us on appeal and, in order to do so, consider the
United States' claim that one of the issues argued by Japan in its appellant's submission isnot properly before us because it was not identified in Japan's Notice of Appeal;
• we begin our assessment of the case by examining the United States' claim on appeal that
the Panel did not have the authority to issue findings with respect to apples other than
"mature, symptomless" apples.  Because this claim raises the question of whether thePanel was even permitted to pronounce on the subject of apples other than "mature,symptomless" apples", we address this claim as a logical antecedent to Japan's claims onthe merits of the Panel's findings;
• next, we consider Japan's claims challenging the Panel's findings that Japan's
phytosanitary measure at issue is inconsistent with Japan's obligations under Articles 2.2,5.7, and 5.1 of the  SPS Agreement ;  and
• finally, we evaluate Japan's claims under Article 11 of the DSU that the Panel failed to
make an "objective assessment of the facts of the case" in the course of its analysis of the
United States' claims under the  SPS Agreement.
II. Background
A. The Disease at Issue
8. The following summarizes "factual aspects" set out by the Panel in paragraphs 2.1–2.6 of the
Panel Report.  The disease 16 targeted by Japan's phytosanitary measure in this dispute is called "fire
blight", often referred to by the scientific name for its bacterium, Erwinia amylovora  or E. amylovora .
Fruits infected 17 by fire blight exude bacterial ooze, or inoculum 18, which is transmitted primarily
through wind and/or rain and by insects or birds to open flowers on the same or new host plants.
E. amylovora  bacteria multiply externally on the stigmas of these open flowers and enter the plant by
                                                     
16The Panel defined "disease" as "[a] disorder of structure or function in a plant of such a degree as to
produce or threaten to produce detectable illness or disorder … usually with specific signs or symptoms." (PanelReport, para. 2.9)
17"Infection" was defined by the Panel as "[w]hen an organism (e.g., E. amylovora ) has entered into a
host plant (or fruit) establishing a permanent or temporary pathogenic relationship with the host." ( Ibid.,
para. 2.12)  In contrast, the Panel noted that the term "infestation" would "[r]efer[] to the presence of the
bacteria on the surface of a plant  without any implication that infection has occurred ." (Ibid., para. 2.13
(emphasis added))
18The Panel defined "inoculum" as "[m]aterial consisti ng of or containing bacter ia to be introduced into
or transferred to a host or medium".  The Panel explained that "[i]noculation is the introduction of inoculum intoa host or into a culture medium.  Inoculum can also refer to potentially infective material available in soil, air orwater and which by chance results in the natural inoculation of a host." ( Ibid., para. 2.14)WT/DS245/AB/R
Page 5
various openings. 19  In addition to apple fruit, hosts of fire blight include pears, quince, and loquats,
as well as several garden plants. 20  Scientific evidence establishes, as the Panel found, that the risk of
introduction and spread of fire blight varies considerably according to the host plant. 21
9. The uncontested history of fire blight reveals significant trans-oceanic dissemination in
the 200-plus years since its discovery. 22   E. amylovora ,  first reported in New York State in the
United States in 1793, is believed to be native to North America. 23  By the early 1900s, fire blight had
been reported in Canada from Ontario to British Columbia, in northern Mexico, and in theUnited States from the East Coast to California and the Pacific Northwest.  Fire blight was reported inNew Zealand in 1919, in Great Britain in 1957, and in Egypt in 1964.  The disease has spread acrossmuch of Europe, to varying degrees depending on the country, and also through the Mediterraneanregion.  In 1997, Australia reported the presence of fire blight, but eradication efforts were successfuland no further outbreaks have been reported.  With respect to the incidence of fire blight in Japan, theparties disputed before the Panel whether fire blight had ever entered Japan; but the United States
assumed, for purposes of this dispute, that Japan was, as it claimed, free of fire blight and fire blight
bacteria.
 24
B. The Product at Issue
10. The United States argued before the Panel that the subject of the United States' challenge to
Japan's phytosanitary measure at issue is the sole apple product that the United States exports, that is,"mature, symptomless" apples.  The United States claimed that such apples constitute a separate,
identifiable category of apples and that its categorization is "scientifically supported".
 25  Japan did not
accept the United States' categorization, arguing that "mature" and "symptomless" are subjectiveterms and that the distinction has no scientific basis.
 26  Furthermore, Japan argued, its phytosanitary
measure addressed the risk arising, not only from mature, symptomless apples that develop and spreadfire blight, but also from the accidental introduction of infected or infested apples within a shipmentof what are thought to be mature, symptomless apples destined for Japan.
 27
                                                     
19Panel Report, para. 2.2.
20Ibid. , para. 2.5.
21Ibid. , para. 8.271.
22Ibid. , para. 2.6.
23Ibid. , paras. 2.1 and 2.6.
24Ibid. , paras. 4.25-4.26.
25Ibid. , para. 8.26.
26Ibid. , paras. 4.99 and 8.26.
27Ibid. , para. 8.28(b).WT/DS245/AB/R
Page 6
11. In the light of this disagreement about the product scope of the dispute, the Panel identified
the product that was subject to the measure at issue.   The Panel observed that, if it were to consider
the "product" to be limited to mature, symptomless apple fruit, as claimed by the United States, "manyaspects of the measure at issue might,  ipso facto ,  lose their  raison d'être  and may become
incompatible with the  SPS Agreement ."
 28  If, on the contrary, the Panel were to conclude that the
product at issue was "any apple" fruit exported to Japan from the United States, then it would need toaddress the justification of all the requirements imposed by Japan as a whole.
 29  The Panel also noted
that it would be "illogical" to accept the United States' characterization because it would prevent thePanel from examining certain aspects of the measure that could be relevant, even if not expresslyaddressing mature, symptomless apples.
 30
12. In addition, the Panel stated that the request for the establishment of a panel submitted by the
United States referred only to "US apples", which is less specific than mature, symptomless apples.The Panel said that the fact that the United Stat es intended to address "only" mature, symptomless
apples in its submission did not affect the Panel's mandate.
 31  Finally, the Panel observed that
scientific methods existed for distinguishing mature apples, and that an apple's susceptibility to fireblight was related to its maturity.
13. Considering the parties' arguments, as well as the experts' views
 32, the Panel determined that
the scope of the dispute should not, at a preliminary stage, be limited to mature, symptomless apples.The Panel considered it particularly inappropriate to limit the scope of the dispute before furtherconsideration of the merits of the case in the light of the two assumptions it found to underlie theUnited States' characterization of the product at issue:  (i) that mature, symptomless apple fruit is not a
"pathway"
 33 for fire blight and (ii) that shipments from the United States to Japan contain only
mature, symptomless apples. 34
                                                     
28Panel Report, para. 8.30.  As an example of aspects of the measure that might in this manner lose
their  raison d'être ,  the Panel refers to the requirements covering pre-harvesting actions to be undertaken with
respect to apples. ( Ibid.)
29Ibid.
30Ibid., para. 8.31.  Aspects of the measure that the Panel thought might be relevant, notwithstanding
the fact that they did not focus on mature, symptomless apple fruit, included requirements related to apples that cannot  be exported (that is, prohibitions). ( Ibid. )
31Ibid. , para. 8.32.
32The Panel engaged experts in consultation with the parties, as provided for in Article 11.2 of the
SPS Agreement  . (Ibid. , paras. 6.1-6.4)
33We understand the Panel to have used the term "pathway" to describe the steps through which a
disease must travel for successful transmission from one plant to a new host plant.  We employ the term in this
Report in the same manner.
34Panel Report, para. 8.33.WT/DS245/AB/R
Page 7
C. The Measure at Issue
14. The United States argued before the Panel that, through the operation of various legal
instruments 35, Japan maintains nine prohibitions or requirements imposed with respect to apple fruit
imported from the United States. 36  With respect to the United States' description of the requirements
for importation of apple fruit from the United St ates, Japan claimed that two such requirements
amounted merely to "procedural steps" common to all phytosanitary measures 37, and that one of them
should actually have been identified as two separate requirements. 38
                                                     
35The Panel identified the following means by which Japan imposed the prohibitions or requirements
relevant to this dispute:  (i) the Plant Protection Law (Law No. 151; enacted 4 May 1950), as amended;  (ii) thePlant Protection Regulations (Ministry of Agriculture,  Forestry, and Fisheries Ordinance No. 73, enacted 30
June 1950), as amended;  (iii) Ministry of Agricultur e, Forestry and Fisheries Notification No. 354 (dated 10
March 1997);  and (iv) related detailed rules and regulations, including Ministry of Agriculture, Forestry, andFisheries Circular 8103. (Panel Report, para. 8.7)
36Panel Report, para. 8.5, citing Request for the Establishment of a Panel by the United States,
WT/DS245/2, 8 May 2002;  United States' first written submission to the Panel, para. 19;  United States'
answers to the Additional Questions posed by the Panel, 28 January 2003, para. 2.  The nine requirements
identified by the United States are as follows:
(a) The prohibition of imported apples from US states other than
apples produced in designated areas in the states of Oregon or
Washington;
(b) the prohibition of imported apples from orchards in which any fire
blight is detected on plants or in which host plants of fire blight
(other than apple trees) are found, whether or not infected;
(c) the prohibition of imported apples from any orchard (whether or
not it is free of fire blight) should fire blight be detected within a
500-meter buffer zone surrounding such orchard;
(d) the requirement that export orchards be inspected three times
yearly (at blossom, fruitlet, and harvest stages) for the presence offire blight for purposes of applying the above-mentionedprohibitions;
(e) a post-harvest surface treatment of apples for export with chlorine;
(f) production requirements, such as chlorine treatment of containers
for harvesting and chlorine treatment of the packing facility;
(g) post-harvest separation of apples for export to Japan from fruits
destined to other markets;
(h) certification by US plant protection officials that fruits are free of
fire blight and have been treated post harvest with chlorine;  and
(i) confirmation by Japanese officials of the US officials' certification
and inspection by Japanese officials of disinfection and packagingfacilities.
(Panel Report, para. 8.5(a)-(i) (footnote omitted))
37The two requirements claimed to be "procedural" are items (h) and (i), supra , footnote 36.
38Panel Report, para. 8.6.  Japan claimed that item (f), supra , footnote 36, should be regarded as two
separate requirements:  one for the chlorine treatment of harvesting containers and one for the chlorine treatmentof packing facilities.WT/DS245/AB/R
Page 8
15. The Panel decided to regard the multiple requirements imposed on imported apple fruit from
the United States as a single measure to be reviewed under the  SPS Agreement . 39  With regard to the
precise requirements to be considered as the elemen ts of the single measure, the Panel found that the
two requirements claimed by Japan to be "procedural" nevertheless constituted "phytosanitary
measures" within the definition of the SPS Agreement  and formed part of the collective set of
conditions to be fulfilled for the importation of apple fruit from the United States. 40  The Panel also
appears to have agreed with Japan's claim that one of the requirements identified by the United Statesshould actually be understood as two separate requirements.  Therefore, the Panel identified the focusof this dispute to be  a  measure applied by Japan to the importation of apple fruit from the United
States, which measure consists of the following ten cumulatively-applied elements:
(a) Fruit must be produced in designated fire blight-free orchards.
Designation of a fire blight-free area as an export orchard ismade by the United States Department of Agriculture (USDA)
upon application by the orchard owner.  Any detection of a
blighted tree in this area by inspection will disqualify the
orchard.  For the time being, the designation is accepted only
for orchards in the states of Washington and Oregon;
(b) the export orchard must be free of plants infected with fire
blight and free of host plants of fire blight (other than apples),
whether or not infected;
(c) the fire blight-free orchard must be surrounded by a 500-meter
buffer zone.  Detection of a blighted tree or plant in this zonewill disqualify the export orchard;
(d) the fire blight-free orchard and surrounding buffer zone must be
inspected at least three times annually.  US officials will
visually inspect twice, at the blossom and the fruitlet stages, the
export area and the buffer zone for any symptom of fire blight.
Japanese and US officials will jointly conduct visual inspection
of these sites at harvest time.  Additional inspections arerequired following any strong storm (such as a hail storm);
(e) harvested apples must be treated with surface disinfection by
soaking in sodium hypochlorite solution;
(f) containers for harvesting  must be disinfected by a chlorine
treatment;
(g) the interior of the packing facility must be disinfected by a
chlorine treatment;
(h) fruit destined for Japan must be kept separated post-harvest
from other fruit;
                                                     
39Panel Report, para. 8.17.
40Ibid. , para. 8.24.WT/DS245/AB/R
Page 9
(i) US plant protection officials must certify that fruits are free
from fire blight and have been treated post harvest with
chlorine;  and
(j) Japanese officials must confirm the US officials' certification
and Japanese officials must inspect packaging facilities. 41
(footnote omitted)
16. At the oral hearing, neither participant disagreed that the measure identified by the Panel as
set out in the preceding paragraph, derived from the application of several legal instruments related toquarantine and other restrictions placed by Japan on imported agricultural products, is the measurebefore us on appeal.
 42
III. Arguments of the Participants and the Third Participants
A. Claims of Error by Japan – Appellant
1. Article 2.2 of the  SPS Agreement  
17. Japan argues that, when evaluating the United States' claim under Article 2.2 of the
SPS Agreement ,  the Panel erred in concluding that Japan's measure, as applied to infected apple fruit
and  to mature, symptomless apples, is maintained without sufficient scientific evidence.  In Japan's
view, the Panel failed to allocate properly the burd en of proof under Article 2.2 because it incorrectly
arrived at a conclusion on the United States' claim despite the fact that the United States had failed toestablish a  prima facie  case as to either infected apple fruit or mature, symptomless apples.
18. First, as to  infected   apple fruit, Japan claims that, to establish a  prima facie   case under
Article 2.2 with respect to the sufficiency of scientific evidence on the risk of completion of the
pathway for transmission of fire blight through infected apple fruit, the United States had to prove
either (i) that the pathway would not be completed even if infected apple fruit were exported toJapan,  or  (ii) that Japan's scientific evidence on this risk would nonetheless be insufficient for the
measure in question.  However, Japan argues, the United States limited its evidence on the issue ofpathways for fire blight to transmission of the disease through mature, symptomless apple fruit.Therefore, according to Japan, the United States advanced no factual claim or evidence with respect toinfected apple fruit.  Indeed, Japan claims, the United States "explicitly disavowed attempts or intent"to establish a  prima facie   case of insufficient scientific evidence on the risk posed by infected apple
                                                     
41Panel Report, para. 8.25(a)-(j).
42Japan's and the United States' responses to questioning at the oral hearing.WT/DS245/AB/R
Page 10
fruit. 43  In the absence of such a  prima facie   case, Japan argues, the Panel was required to find that
Japan had not acted inconsistently with its obligations under Article 2.2.
19. Japan submits that, the Panel's finding that Japan had acted inconsistently with respect to the
application of its measure to infected apple fruit was premised on the Panel's view that Japan bore the
burden of proof as regards the risk posed by infected apple fruit.  Japan contends that, as the United
States had declined to assert and prove a  prima facie  case in respect of infected apple fruit, the
United States was not entitled to a presumption th at the measure is maintained without sufficient
scientific evidence.  Citing the Appellate Body Report in  EC – Hormones ,  Japan further argues that
the Panel's shifting of the burden of proof to Japan was "[p]remature" 44 because it occurred  before
the demonstration of a  prima facie  case by the United States.  Therefore, according to Japan, the
Panel erred in overlooking the absence of a  prima facie  case by the United States and thereby
shifting the burden of proof to Japan.
20. Japan refers to possible explanations that might justify a panel's finding made without the
establishment of a  prima facie   case.  Japan contends that these possible explanations are inapplicable
to the present case or have no merit in law.   First, Japan examines the possibility that a panel mightbe allowed to find a particular fact—not specifically asserted by the complainant—if the complainingparty made a general factual assertion under the pr ovision in question.  Japan argues, however, that, in
the present case, the United States not only failed to address a particular factual claim on infectedapple fruit, but consciously declined to make that factual claim and requested that the Panel delete thefinding.  Therefore, in Japan's view, there is no  general  factual argument of the complaining party
that could serve as an "umbrella" argument under which the Panel could have made a specific
finding.
 45
21. Japan also considers the possibility that a panel may be authorized to "distill" a generalized
case from the argumentation of the complaining party, regardless of whether that party in fact hasmade a particular claim.
 46  However, according to Japan, the Appellate Body " implicitly  rejected this
sort of arbitrary distillation of arguments" 47 in reversing the panel's finding under Article 5.6 of the
SPS Agreement   in  Japan – Agricultural Products II . 48
                                                     
43Japan's appellant's submission, para. 23.
44Ibid. , p. 7, subtitle  ii.
45Ibid. , para. 30.
46Ibid. , para. 32.
47Ibid.  (original italics)
48Appellate Body Report, para. 143(h).WT/DS245/AB/R
Page 11
22. Finally, Japan claims that the Panel's conclusion as to  infected   apple fruit could be
understandable if the risk of the spread of fire blight through infected apple fruit were a " defensive
plea", for which the defendant normally bears the burden of proof. 49  However, Japan argues,
Article 2.2 does not impose any requirement of proof on the importing Member.  As a result, in
Japan's view, it is the complainant's burden to prove th at there is not sufficient scientific evidence for
the measure in respect of a particular pathway, and not the respondent's burden to establish that suchevidence exists.
23. For Japan, the Panel's finding of inconsistency with Article 2.2 is based, in part, on the
erroneous finding of a  prima facie   case made with respect to  infected   apple fruit.  Therefore, Japan
requests the Appellate Body to reverse the Panel's finding that the measure at issue is maintained"without sufficient scientific evidence" w ithin the meaning of Article 2.2 of the  SPS Agreement .
24. Turning to Japan's claim as it relates to matu re, symptomless apple fruit, Japan claims the
Panel did not respect the discretion conferred by Article 2.2 on an importing Member in the
evaluation of the relevant scientific evidence.  Japan submits that misinterpretation of Article 2.2 led
the Panel to conclude, erroneously, that the United States had established a  prima facie   case under
Article 2.2 with respect to mature, symptomless apple fruit.
25. Japan asserts that Article 2.2 does not mandate any specific method for a Member to evaluate
scientific evidence.  Therefore, in Japan's submission, the provision should be interpreted and appliedto allow a "certain degree of discretion" on the part of the importing Member to determine how tochoose, weigh, and evaluate such scientific evidence.
 50  Japan argues that the Panel failed to accord
such discretion when considering the scientific evidence submitted by Japan, because "the Panel
evaluated the scientific evidence in accordance with the experts' view, despite the contrary view of an
importing Member (Japan)." 51  As an example of the Panel's improper approach, Japan notes that the
Panel found that "mature apples are unlikely to be  infected  by fire blight if they do not show any
symptoms", despite the fact that Japan had subm itted evidence of an experiment suggesting the
contrary. 52
26. Japan points out that the Panel's risk analysis differed from the risk assessment undertaken by
Japan.  According to Japan, the Panel:  divided the overall risk of apple fruit serving as a pathway forentry, establishment and spread of fire blight into  individual components;  identified the level of risk
                                                     
49Japan's appellant's submission, para. 38. (original italics)
50Ibid. , para. 76.
51Ibid. , para. 78.
52Ibid. , quoting Panel Report, para. 8.139. (original italics)WT/DS245/AB/R
Page 12
for each component;  and reviewed whether the corresponding risk for each component was
established with sufficient scientific evidence. 53  In contrast, Japan argues, Japan's assessment of the
risk reflects the historical facts of trans-oceanic spread of the bacteria, the rapid growth ofinternational trade, and the lack of knowledge on the pathways of transmission of fire blight.  Japan
contends that the Panel should not have discarded Japan's approach to risk assessment, which was
"reasonable as well as scientific" and derived from "prudence and precaution".
 54  Therefore,
according to Japan, the Panel's improper analysis of the scientific evidence underlying Japan'smeasure, failed to recognize the discretion conferred on an importing Member by Article 2.2.
27. Japan asserts that the Panel, as a result of its misinterpretation of Article 2.2, erroneously
found that the United States had established a  prima facie  case regarding mature, symptomless
apples.  Japan submits that the United States failed to "raise a presumption that there [were] norelevant   scientific studies or reports"
 55 supporting the measure at issue because it did not rebut the
following points established by Japan:  (i) the unknown cause of the trans-oceanic dissemination of
fire blight and (ii) the possibility of a physiologically mature apple being infected and shipped to
Japan before showing noticeable symptoms.  As a result, in Japan's view, the Panel could not haveconcluded properly that the measure was inconsistent with Japan's obligations under Article 2.2.
28. Accordingly, Japan requests the Appellate B ody to reverse the Panel's finding that the
measure at issue is maintained "without sufficie nt scientific evidence" within the meaning of
Article 2.2 of the  SPS Agreement .
2. Article 5.7 of the  SPS Agreement  
29. Japan challenges the Panel's overly "narrow" 56 interpretation of Article 5.7 of the
SPS Agreement   and its consequent finding that the risk of transmission of fire blight from United
States apples to plants in Japan does not constitute a "case[] where relevant scientific evidence isinsufficient", as required by Article 5.7.
30. Japan asserts that, according to the Panel, Artic le 5.7 does not apply to the present situation of
fire blight disease, where scientific studies as well as practical experience exist, because Article 5.7was designed for situations "where little, or no, reliable evidence was available on the  subject matter
                                                     
53Japan's appellant's submission, pa ra. 72, citing Panel Report, paras.  8.89, 8.122, 8.139, 8.153, 8.157,
and 8.161.
54Japan's appellant's submission, paras. 81-82.
55Ibid. , para. 83, quoting Panel Report, para. 8.106. (original italics)
56Japan's appellant's submission, para. 94.WT/DS245/AB/R
Page 13
at issue ." 57  In Japan's view, this reading of the provision is "far too narrow" because Article 5.7
should also be applied to a situation where, although much literature is found concerning a "certainphytosanitary phenomenon"
 58, there are particular aspects of that phenomenon as to which evidence is
not available, or questions remain unanswered. 59
31. Japan contends that the Panel's reliance on  Japan – Agricultural Products II  for its reading
of Article 5.7 is misplaced because the Appellate Body's decision in that case does not a priori  
exclude the application of Article 5.7 even where relevant scientific evidence is sufficient"in general
 ". 60  Japan asserts that the phrase "[w]here relevant scientific evidence is insufficient", in
Article 5.7, should be interpreted to relate to a " particular   situation" in relation to a " particular
measure" or a " particular   risk". 61  Therefore, Japan argues, different situations concerning the same
disease should be considered separately, not in general, for purposes of Article 5.7, because theymight involve "two separate sets of evidence or information that are materially different from eachother."
 62
32. Japan submits that the conclusion of the Panel in its analysis under Article 5.7 is premised on
its assessment that, as regards fire blight, "scientific studies as well as practical experience haveaccumulated for the past 200 years".
 63  Japan contends that the Panel was not authorized to base its
conclusion on the "history" of 200 years of studies and practical experience because the United Statesdid not claim that such "history" undermined Japan's adoption of the provisional measure pursuant toArticle 5.7.
 64  According to Japan, because the United States had itself not raised such an objection
based on the "history" of evidence and experience related to fire blight, the Panel could not draw aconclusion regarding Article 5.7 on the basis of this "history".
33. Japan further argues that the Panel's interpretation of Article 5.7 implicitly draws an
inappropriate distinction between what Japan identifies as "unresolved uncertainty" and "newuncertainty", and that such a distinction is inconsistent with the text of the  SPS Agreement .  Japan
employs the term "unresolved uncertainty" to refer to  uncertainty that the existing scientific evidence
                                                     
57Japan's appellant's submission, para. 93, quoting Panel Report, para. 8.219. (emphasis added by
Japan)
58Japan's appellant's submission, para. 94.
59Ibid.
60Ibid. , para. 95, quoting Panel Report, para. 8.218. (original italics)
61Japan's appellant's submission , para. 96. (emphasis added)
62Ibid., para. 96.
63Ibid. , para. 93, quoting Panel Report, para. 8.219;  and  para. 97.
64Japan's appellant's submission, para. 97.WT/DS245/AB/R
Page 14
is not able to resolve despite its accumulation over a long period of time. 65  "New uncertainty",
according to Japan, refers to cases where a new risk has been identified and little or no reliablescientific evidence is available on it.
 66
34. Japan claims that the Panel's interpretation of Article 5.7 would deny its applicability as long
as there had accumulated, over the years, scientific studies as well as practical experience on the risk
in general.  According to Japan, this implies that cases of "unresolved uncertainty" would not be
covered by Article 5.7;  Japan submits that such "inflexibility" is not based on the text or a properinterpretation of the provision.
 67  For Japan, Article 5.7 makes no distinction between "new
uncertainty" and "unresolved uncertainty", and thereby encompasses both types of uncertainty.
35. Japan asserts that the standard in Article 2.2 of "sufficient scientific evidence" requires a
rational relationship between the evidence and a  particular   measure.  Japan also notes the Appellate
Body's characterization in  Japan  –  Agricultural Products II   of Article 5.7 as a " qualified
exemption" 68 from the requirement of "sufficient scientific evidence" in Article 2.2.  Thus, Japan
claims, in the context of Article 2.2, the phrase "cases where relevant scientific evidence is
insufficient" in Article 5.7 should properly be understood as referring to "a particular situation inrespect of a particular  measure   to which Article 2.2 applies (or a particular risk), but not to a
particular  subject matter   in general, which Article 2.2 does not address."
 69
36. Because Article 5.7 is intended to cover situations of "unresolved uncertainty" as well as
"new uncertainty", Japan argues that the "unresolved uncertainty" in this case was improperlydiscounted by the Panel.  Japan asserts that, in the present case, the Panel found that "unresolved,scientific uncertainty" still remained as to the risk of shipment of infected apple fruit, notwithstanding
200 years of experience of fire blight.
 70  According to Japan, the experts themselves expressed the
need for caution with respect to unresolved uncertain ty, as they considered reasonable the continuing
requirement of a fire blight-free orchard, and as they voiced strong reservations about the possibilityof removing all elements of Japan's phytosanitary measure at once.  Japan further argues that a novelexperiment it introduced during the Panel proceedings to show the possibility of infection of theinside of apple fruit via pedicel was not challenged by any of the experts consulted by the Panel.  For
                                                     
65Japan's appellant's submission, para. 98.
66Ibid., and footnote 76 thereto.
67Ibid., para. 100.
68Ibid., para. 102, quoting Appellate Body Report, para. 80. (original italics)
69Japan's appellant's submission, para. 102. (original italics)
70Ibid., para. 106.WT/DS245/AB/R
Page 15
Japan, the results of the experiment indicate that the available information on fruit infection is far
from conclusive, contrary to the assertions of the United States.  Japan adds that the fact that othercountries do not impose phytosanitary measures in response to "unresolved uncertainty" regarding fireblight does not necessarily mean that such uncertainty does not exist or is negligible.  Instead,
according to Japan, it is the prerogative of each importing Member, corresponding to its appropriate
level of protection, to determine if it will accept such uncertainty.
37. Japan further contends that this case involves "new uncertainty"  as well as  "unresolved
uncertainty".  Referring to the testimony of the expert s, Japan argues that if it has to remove or modify
its phytosanitary measure to bring it into conformity with Article 2.2, the impact of this action willcreate "new uncertainty", as the change to the phytosanitary requirements will result in a new situationof risk, for which little, or no, reliable evidence is available.  Therefore, in Japan's view, even underthe Panel's unduly narrow interpretation of Article 5.7, this provision should be considered applicableto the present case.
38. Japan states that the Panel erred by concluding that the first of the four prerequisites for a
provisional measure under Article 5.7 (that is, the existence of a case where relevant scientificevidence is insufficient), as articulated by the Appellate Body in  Japan – Agricultural Products II ,
was not met.  Japan further asserts that the Panel should have examined whether Japan's measuresatisfied the remaining three requirements for a provisional measure.  Accordingly, Japan requeststhat the Appellate Body complete the legal analysis  with respect to the remaining three prerequisites
identified in  Japan – Agricultural Products II   for a provisional measure.
 71  In this respect, Japan
submits that it satisfies these three remaining requirements. 
39. Japan therefore requests the Appellate Body to reverse the Panel's finding under Article 5.7,
to complete the legal analysis, and to find that Japan's measure constitutes a provisional measurepursuant to Article 5.7 of the  SPS Agreement .
 72
3. Article 5.1 of the  SPS Agreement
40. Japan appeals the Panel's legal interpretation of Article 5.1 of the  SPS Agreement .  Japan
claims that the Panel's finding that Japan has acted inconsistently with Article 5.1 is premised on thiserroneous interpretation, in particular, on three legal errors perpetrated by the Panel when applying
                                                     
71See  infra , para. 60.
72Japan's appellant's submission, para. 121.WT/DS245/AB/R
Page 16
Article 5.1 in its examination of Japan's risk assessment (referred to by the Panel as the "1999
PRA"). 73
41. First, Japan claims that the Panel improperly interpreted Article 5.1 as requiring the risk
assessment to be "specific" to apple fruit.  In Japan's view, Article 5.1 requires a "risk assessment";
but does not speak to the precise  manner   in which that risk assessment must be conducted.  As such,
according to Japan, the requirement of "specificity", identified in  EC – Hormones ,  should be
understood as referring to the "[specificity of] th e risk" rather than to "how a risk assessment is
done". 74  On the basis of this understanding, Japan does not find legally significant the Panel's
observation that Japan's risk assessment was "conducted on the basis of a  general assessment  of
possibilities of introduction of fire blight into Japan, through a variety of hosts, including - but not
exclusively - apple fruit ". 75  Japan emphasizes the fact that it conducted the pest risk assessment for
fire blight in accordance with its own "methodolo gy", namely, one that considers "all importation of
plants and fruits which could be potential vectors of the bacteria". 76  Selection of such a methodology,
according to Japan, is well within the discretion accorded each importing Member by Article 5.1 in
the conduct of its risk assessment.  Therefore, Japan argues, it would be "erroneous to find the1999 PRA not specific enough".
 77
42. Secondly, Japan contends that the Panel read Article 5.1 improperly as requiring Japan to
"consider[] any alternative measures other than the[] existing measures." 78  Japan submits that the
consideration of alternative phytosanitary measures relates to the " methodology " of the risk
assessment, which is not addressed by Article 5.1. 79  Japan notes that under its risk assessment
methodology, when an exporting Member makes "a specific request and a proposal [for the lifting of
the default import prohibition], a risk assessment would have to be made in connection with that
                                                     
73The "1999 PRA" refers to the "Report on Pest Risk Analysis concerning Fire Blight Pathogen
(Erwinia amylovora ) - Fresh apples produced in the United States of America", Ministry of Agriculture,
Forestry and Fisheries, Plant Protection Division  (August 1999); Exhibit JPN-32, submitted by Japan to the
Panel.  This pest risk analysis follows an earlier such analysis deemed by the Panel to be relevant to the entryand spread of fire blight (Panel Report, para. 8.246) and identified by Japan as the "Pest Risk Analysisconcerning Fire Blight Pathogen ( Erwinia amylovora )" (1996); Exhibit JPN-31, submitted by Japan to the
Panel.  The Panel observed that "the parties agree that the 1999 PRA is the main relevant document" to beevaluated as Japan's risk assessment under Article 5.1 of the  SPS Agreement . (Panel Report, para. 8.247)   At
the oral hearing, both participants reaffirmed the focus of the Panel's Article 5.1 analysis to be the 1999 PRA.
74Japan's appellant's submission, para. 129.
75Panel Report, para. 8.270. (emphasis added)
76Japan's appellant's submission, para. 128.
77Ibid., para. 129.
78Ibid., para. 133, quoting Panel Report, para. 8.285.
79Japan's appellant's submission , para. 133. (emphasis added)WT/DS245/AB/R
Page 17
particular proposal." 80  Japan argues that its reliance on "cumulative measures" reflects not the
inadequacy of its risk assessment, as the Panel suggests, but the "high level of protection" sought to beachieved by Japan.
 81  Therefore, in Japan's view, Article 5.1 does not require Japan to have
considered alternative measures in its risk assessment.
43. Finally, Japan argues that the Panel improperly evaluated Japan's risk assessment in the
light of information that became available only subsequent to the risk assessment.  Japan draws adistinction between (i) compliance with Article 5.1 at the time of the "initial" risk assessment and(ii) "continu[ing]" compliance with Article 5.1 in the light of subsequent information.
 82  Japan argues
that, in the first case, the importing Member should "fully complete[]" a risk assessment, consistentwith the  SPS Agreement ,  and on the basis of "information available at [that] time".
 83  In the second
case, the requirement of a "full, formal risk assessment" 84 immediately after the discovery of
new evidence would be "unreasonable" 85 and, therefore, recently discovered evidence should be
considered only "in the context of investigating whether … the party  continues to comply   with
Article 5.1". 86
44. With regard to subsequent information, Japan advances three grounds for considering as
"unreasonable" the requirement of a "full" risk assessment.  First, Japan argues that the importingMember should be given an opportunity to consider whether the recent information necessarilywarrants a new risk assessment.  Secondly, as there is no requirement under the  SPS Agreement  that
a risk assessment be a formal process, and as Japan has already taken into account recent evidencefiled by the United States and New Zealand during the Panel proceeding, Japan submits that it hasalready "substantively fulfilled the risk assessment requirements" of Article 5.1.
 87  Finally, Japan
notes that a formal risk assessment process takes time to complete and that the review of newly
available information is an "on-going process". 88  Because such information comes to an importing
Member's knowledge in "piecemeal" fashion, Japan argues, that Member cannot be expected toconduct a "full risk assessment" for every new piece of evidence.
 89  Therefore, in Japan's view, "the
                                                     
80Japan's appellant's submission, para. 133.
81Ibid. , para. 134.
82Ibid., para. 136.
83Ibid., para. 135.
84Ibid., para. 136.
85Ibid., para. 138.
86Ibid., para. 136. (emphasis added)
87Ibid., para. 137.
88Ibid., para. 138.
89Ibid.WT/DS245/AB/R
Page 18
requirement of a formal risk assessment should mean that the assessment be performed in due
course." 90
45. Japan therefore requests the Appellate Body to reverse the Panel's findings with respect to
Article 5.1 of the  SPS Agreement .
4. Article 11 of the DSU
(a) The Panel's objective assessment under Article 2.2 of the
SPS Agreement
46. Japan challenges on appeal the Panel's analysis of the completion of the last stage of the
pathway for transmission of fire blight from "infected" apple fruit.  According to Japan, the errors ofthe Panel in this analysis constitute a failure to ma ke an "objective assessment of the facts of the case"
in accordance with Article 11 of the DSU.
47. First, referring to the Panel's reasoning in paragraph 8.166 of the Panel Report, Japan argues
that the evidence and experts' opinions relied upon by the Panel were focused on the pathway oftransmission of fire blight from mature, symptomless apples and did not take into consideration the
pathway from  infected   apple fruit.  Japan contends that the Panel failed to present how the evidence
related to  mature, symptomless   apple fruit should be applied to the issue of  infected   apples, and
therefore, the Panel erroneously relied on such evidence in arriving at a conclusion for  all  kinds of
apple fruit.
48. Secondly, Japan asserts that, in the same paragraph of the Panel Report, the Panel, when
considering evidence of experiments of inoculated apples, made a "factual error"
 91 in declaring that
"discarded apples have not led to any visible contamination,  even when ooze was reported to exist ". 92
According to Japan, this declaration is a mischaracterization of the underlying scientific studies,
which actually reported that no ooze was observed, and is inconsistent with other evidence in the
Panel record.  Such a "material error" in this finding, in Japan's view, "implies that this key paragraphon completion of the pathway was not given careful thought", and is therefore inconsistent with thestandard of review in Article 11 of the DSU.
 93
49. Thirdly, Japan notes that the Panel rejected the United States' argument that the caution
emphasized by the experts with respect to changes in Japan's measure should be equated to a                                                     
90Japan's appellant's submission, para. 138.
91Ibid. , para. 52.
92Ibid., quoting Panel Report, para. 8. 166. (emphasis added by Japan)
93Japan's appellant's submission, para. 54.WT/DS245/AB/R
Page 19
"theoretical risk", as such risk was described by the Appellate Body in  EC  –  Hormones . 94  In
rejecting this characterization, Japan argues, the Panel necessarily viewed the risk from infectedapples to be "real" and implicitly recognized that the pathway from infected apples could, in fact, becompleted.
 95  In Japan's view, the Panel's determination that the risk of transmission of fire blight
from infected apples was not "theoretical", cannot be  reconciled with its finding on the likelihood of
completion of the pathway.
50. Fourthly, Japan contends that the Panel failed in its analysis to take into account properly the
"precautionary principle" and the need for caution that was expressed by the experts.  Japan claimsthat, although the expressions of caution by the experts "do not identify a concrete path of thedissemination of the disease"
 96, the Panel's failure to accord them "greater weight" 97 in its evaluation
of the evidence is inconsistent with the Panel's dut y to make an "objective assessment of the facts of
the case" under Article 11 of the DSU.
51. In the light of these errors in the Panel's assessment of the facts of the case, Japan requests the
Appellate Body to find that the Panel failed to discharge its functions under Article 11 of the DSU
with respect to is evaluation of the United States' claim under Article 2.2 of the  SPS Agreement .
(b) The Panel's objective assessment under Article 5.1 of the
SPS Agreement  
52. Japan claims that the Panel failed to fulfill its obligations under Article 11 of the DSU when
evaluating the United States' claim under Article 5.1 of the  SPS Agreement .  In particular, Japan
contests the Panel's conclusions that Japan's risk assessment (the 1999 PRA) insufficiently analyzedthe "probability" and "pathways" when considering the likelihood of entry, establishment or spread of
fire blight.
53. Concerning the "probability" considered in the risk assessment, Japan challenges the Panel's
finding that the 1999 PRA does not provide any "quantitative or qualitative" assessment of the"probability" of entry, establishment or spread of fire blight in Japan.
 98  According to Japan, the Panel
reached this erroneous conclusion by "ignoring the clarifying material supplied by Japan" and relying
solely on its own understanding and interpretation of the risk assessment contained in the
                                                     
94Appellate Body Report, para. 186.
95Japan's appellant's submission, para. 61.
96Ibid., para. 68.
97Ibid., para. 69.
98Ibid., para. 130, quoting Panel Report, para. 8.275.WT/DS245/AB/R
Page 20
1999 PRA. 99  With regard to the risk assessment's examination of "pathways" of transmission, Japan
claims that the Panel again focused exclusively on the text of the 1999 PRA and overlooked Japan's
submissions and other explanatory material on the subject.  Such a "clear aversion" to considering theadditional evidence and explanations submitted by Japan, in Japan's view, constitutes a failure to
make an "objective assessment of the facts of the case".
 100
54. Japan therefore requests the Appellate Body to find  that the Panel acted inconsistently with its
obligations under Article 11 of the DSU when evaluating the United States' claim under Article 5.1 ofthe  SPS Agreement .
B. Arguments of the United States – Appellee
1. Article 2.2 of the  SPS Agreement
55. Because the United States agrees with Japan that the Panel erred in making findings as to
immature apples 101, the United States limits its discussion under Article 2.2 of the  SPS Agreement   to
"mature, symptomless" apples.  In this respect, the United States argues that Japan's arguments infavour of reversing the Panel's findings are based either on the re-weighing of evidence before thePanel, or on the imposition of legal standards that are "not found in the SPS Agreement".
 102
56. The United States first claims that Japan's allegations under Article 2.2  constitute a challenge
to the Panel's fact-finding.  These allegations, according to the United States, cover the Panel's
weighing of the significance of the 1990 van der Zwet study 103 and of the history of trans-oceanic
dissemination of fire blight, as well as the Panel's factual conclusions with respect to the possibility ofinfection of mature, symptomless apples.  The United States submits that such a challenge to thePanel's fact-finding may be raised on appeal only in the context of a claim under Article 11 of theDSU.  The United States notes that Japan does not allege a violation of Article 11 with respect tothese issues.  Therefore, in the view of the United States, Japan's allegations under Article 2.2 shouldbe rejected by the Appellate Body and the Panel's finding that Japan acted inconsistently withArticle 2.2 of the  SPS Agreement   should be upheld.
                                                     
99Japan's appellant's submission, para. 131.
100Ibid. , para. 132.
101United States' appellee's submission, para 5.  See also, infra , paras. 82 ff.
102United States' appellee's submission, para 15.
103T. van der Zwet  et al., "Population of  Erwinia amylovora   on External and Internal Apple Fruit
Tissues", Plant Disease  (1990), Vol. 74, pp. 711-716;  Exhibit JPN-7, submitted by Japan to the Panel.WT/DS245/AB/R
Page 21
57. The United States rejects Japan's arguments that the Panel failed to give appropriate weight to
Japan's interpretation of the evidence, and hence failed to accord the appropriate "discretion" to theimporting Member in the evaluation of scientific evidence and the consequent establishment of aphytosanitary measure.
 104  According to the United States, the "discretion" enjoyed by importing
Members should not prevent a panel from finding that a Members' judgement is unsupported by
scientific evidence.  In the United States' view, Japan's position is inconsistent with the AppellateBody's statement in  Australia – Salmon  that panels "are not required to accord to factual evidence of
the parties the same meaning and weight as do the parties."
 105  The United States submits that Japan's
position also "echoes" the interpretation proffered by Japan and rejected by the Appellate Body inJapan – Agricultural Products II .
 106
58. The United States contests Japan's argument that the United States failed to prove the absence
of scientific evidence concerning "mature, symptomless" apples serving as a pathway.  The UnitedStates asserts that Japan "distorts the applicable burden [of proof]":  it transforms the requirement of
"rais[ing] a presumption" that there was no relevant  scientific evidence supporting the measure, into
an obligation of "prov[ing] the absence of scientific evidence".
 107  The United States contends that the
SPS Agreement   cannot be interpreted as imposing upon the complaining Member the burden of either
proving a "negative" 108, or disproving "all speculation on hypothetical risks". 109  According to the
United States, Japan itself acknowledged that meeting this burden of proof would be an "impossible"task.
 110  In contrast to this impossibility, the United States argues, a complaining party must be given
the possibility of raising a presumption of the absence of relevant scientific evidence.
59. The United States recalls that Article 2.2 requires that a measure not be maintained "without
sufficient scientific evidence".  According to th e United States, this requirement does not mean that
"uncertainty" will be completely eradicated because  "uncertainty" is an inherent characteristic of
science, which cannot provide absolute certainty, as explained by the Appellate Body inEC – Hormones .
 111  In the light of this uncertainty that can never be eliminated, the United States
rejects as speculative Japan's suggestion that "apple fruit  may have been  the means by which trans-
oceanic dissemination of fire blight occurred in the past" or that " E. amylovora   bacteria  may  be
                                                     
104United States' appellee's submission,  para. 19, qu oting Japan's appellant's submission, para. 76.
105Appellate Body Report, para. 267.
106United States' appellee's submission, para 19, citing Appellate Body Report, para. 82.
107United States' appellee's submission, para. 21.
108Ibid., para. 22.
109Ibid., para. 20.
110Ibid., para. 22, quoting Japan's appellant's submission, para. 85.
111United States' appellee's submission, para. 23, quoting Appellate Body Report, para. 186.WT/DS245/AB/R
Page 22
present in physiologically mature apples". 112  These propositions, the United States claims, are based
respectively on allegations that the causes of trans-oceanic dissemination are still unknown, and thatthe moment of maturity is not precise.  Such "speculation", in the view of the United States, cannotconstitute "sufficient scientific evidence" in the face of research establishing that mature apples do not
serve as a pathway for transmission of fire blight.
60. Therefore, the United States requests the Appellate Body to uphold the Panel's finding that
Japan's measure, as applied to mature, symptomless apples, is maintained "without sufficientscientific evidence" and is therefore inconsistent with Japan's obligations under Article 2.2 of theSPS Agreement .
2. Article 5.7 of the  SPS Agreement  
61. The United States supports the Panel's interpretation and application of Article 5.7 of the
SPS Agreement .  It requests the Appellate Body to reject Japan's appeal in this regard and uphold the
Panel's findings accordingly.
62. The United States contends that the mere fact that some uncertainty exists in the evidence
before a panel, whether "unresolved" or "new", cannot justify the conclusion that relevant scientificevidence is insufficient.  According to the United States, such a conclusion must be based on anassessment of the evidence itself.  The United States adds, to illustrate its point, that the uncertainty asto the means by which trans-oceanic dissemination of fire blight occurred is not relevant to the issueof transmission of fire blight by mature apples in the face of "specific, direct, and voluminous"
evidence that mature apple fruit does not transmit fire blight.
 113
63. The United States further contends that the context of Article 5.7 clarifies the concept of
"sufficiency" under Article 5.7.  The United States notes that the second sentence of Article 5.7requires Members imposing provisional phytosanitary measures to "obtain  additional  information
necessary for a more objective assessment of risk."
 114  According to the United States, this provision
implies that information necessary for an objec tive risk assessment is lacking at the time the
provisional measure is adopted.  The United States finds this implication "logical" because, ifsufficient information existed for an objective risk assessment, a provisional measure would beunnecessary.
 115  As such, in the view of the United States, the "sufficiency" of evidence relevant to
                                                     
112United States' appellee's submission, para. 24. (original italics)
113Ibid. , para. 29.
114Ibid., para. 30, quoting Article 5.7 of the  SPS Agreement . (emphasis added by the United States)
115United States' appellee's submission, para. 31.WT/DS245/AB/R
Page 23
Article 5.7 should be defined in relation to the sufficiency of evidence for an objective risk
assessment.
64. With respect to the concept of "unresolved uncertainty", the United States claims that the
examples of "unresolved uncertainty" cited by Japan "do not even constitute relevant scientific
evidence." 116  The statements of caution by the experts, according to the United States, were based on
policy judgements rather than scientific considerations, as the experts themselves acknowledged.  Inthe view of the United States, these statements cannot be considered  scientific  evidence within the
meaning given by the Panel to this term.
 117  The United States also argues that the unpublished study
cited by Japan cannot constitute uncertainty that leads to a conclusion of insufficient relevantscientific evidence, because the experts did not agree with Japan as to the uncertainty identified by the
study.  Thus, according to the United States, Japan's purported uncertainties cannot overcome theextensive studies on fire blight on which the Panel relied to determine that relevant scientific evidencewas not insufficient.
65. The United States contests Japan's attempt to identify "new uncertainty" that would justify the
measure under Article 5.7.  The United States claims that uncertainties related to the possible removalof Japan's measure do not render the relevant scientific evidence "insufficient" within the meaning ofArticle 5.7.  Such uncertainties, in the view of the United States, constitute "[h]ypotheticalspeculation" that does not meet the requirements of Article 5.7, just as speculation cannot satisfy therequirements of Article 5.1.
 118  If Japan's interpretation were accepted, the United States contends,
"the exception in Article 5.7 would swallow the whole of the SPS Agreement." 119
66. The United States argues that, in any event, Japan does not meet the remaining three
requirements of Article 5.7 set out by the Appellate Body in  Japan – Agricultural Products II . 120
The United States claims that Japan's measure cannot be based on "available pertinent information",
as stated in Article 5.7, because Japan has not cited such information, nor does such information existgiven the evidence establishing that the pathway cannot be completed for mature apple fruit.  In
addition, the United States argues, Japan has not sought to obtain additional information for a moreobjective risk assessment, as Japan has "disregarded" the evidence on the lack of susceptibility of
                                                     
116United States' appellee's submission,  para. 34.
117The Panel stated that scientific evidence is "evi dence gathered through scientific methods" and that
it "excludes in essence not only insufficiently substantiated information, but also such things as a non-demonstrated hypothesis." ( Ibid. , para. 38, quoting Panel Report, paras. 8.92-8.93)
118United States' appellee's submission, para. 42, citing Appellate Body Report, EC – Hormones ,
para. 186.
119United States' appellee's submission, para. 42.
120Appellate Body Report, para. 89.WT/DS245/AB/R
Page 24
mature apples to fire blight infection and bacterial presence. 121  According to the United States, Japan
has also not reviewed the measure within a reasonable period of time, as Japan "has not examined, letalone sought, information" concerning the critical elements of the pathway for transmission of fireblight.
 122  Thus, in the view of the United States, Japan meets none of the requirements set forth under
Article 5.7.
67. Therefore, the United States requests the Appellate Body to uphold the Panel's finding that
Japan acted inconsistently with its obligations under Article 5.7 of the  SPS Agreement .
3. Article 5.1 of the  SPS Agreement  
68. The United States supports the Panel's interpretation of and analysis under Article 5.1 of the
SPS Agreement ,  and therefore requests the Appellate Body to reject Japan's appeal on this issue.
69. The United States argues first that the Panel properly applied the requirement of "specificity"
when evaluating Japan's risk assessment (the 1999 PRA).  The United States observes that Japanacknowledges that the 1999 PRA "did not specifically focus on a particular commodity" (in particular,on apple fruit).
 123  The United States contests Japan's claim, however, that the lack of a product-
specific focus in the risk assessment was only a ma tter of "methodology" in order to assess the risk of
multiple vectors, including that from apple fruit.  According to the United States, the Panel'sinterpretation properly required the assessment under Ar ticle 5.1 to be sufficiently specific to the risk
at issue.  The United States submits that, in order for a measure imposed on a particular product to be"rationally" related to, or based on, an assessment of risks, that measure must "specifically" focus on a
"product".
 124  That Japan characterizes the lack of such focus in the 1999 PRA as a "methodology"
does not, according to the United States, exempt the risk assessment from this specificity requirement.The United States asserts that Japan's risk assessment evaluated the risk related to several hosts butdid not sufficiently consider the risks "specifically associated with the commodity at issue:  US applefruit exported to Japan."
 125  Therefore, the United States contends, the 1999 PRA failed to meet the
requirement of specificity under Article 5.1, as correctly found by the Panel.
                                                     
121United States' appellee's submission, para. 46.
122Ibid. , para. 47.
123Ibid. , para. 50, quoting Japan's appellant's submission, para. 128.
124United States' appellee's submission, para. 51.
125Ibid., quoting Panel Report, para. 7.14.WT/DS245/AB/R
Page 25
70. Secondly, the United States challenges Japan's argument that, because its "methodology"
required a risk assessment in connection with a proposal from an exporting Member, Japan was not
bound to consider in the 1999 PRA any alternative measures to those already applied.  The UnitedStates claims that, as the Panel noted, "nothing in the text of Article 5.1 and Annex A, paragraph 4
suggests that alternative options have to be proposed by the exporting Member."
 126  Instead, the
United States notes, paragraph 4 of Annex A refers to "SPS measures which might be applied".  In theview of the United States, this text makes clear that it is the importing Member's obligation toconsider alternative measures to those that it actually applies.  In this regard, the United States drawsattention to the observations by Dr. Chris Hale  and Dr. Ian Smith that the 1999 PRA "appeared to
prejudge the outcome of its risk assessment" and that the 1999 PRA seemed to be primarily concernedwith showing that "each of the measures already in place was effective in some respect" in order toconclude that all were necessary.
 127
71. Finally, the United States takes issue with Japan's claim that it has satisfied the requirements
of Article 5.1 by conducting an "informal risk assessment" on mature, symptomless apples in the
course of the dispute settlement proceedings and has reached the conclusion that the latest datapresented by the United States and New Zealand are "not yet sufficient" to justify a modification ofthe current measure.
 128  Such a claim, the United States argues, reflects Japan's intention to maintain
its measure even in the face of an adverse ruling and, therefore, highlights the need for the AppellateBody to make clear legal findings rejecting Japan's "spurious legal theories".
 129  In this regard, the
United States submits that, although the Panel correctly found that Japan failed to meet therequirements of Article 5.1, this conclusion could have been reached on a "more fundamental basis":
in the United States' view, given the "close rela tionship" between Articles 5.1 and 2.2, and in the
absence of "sufficient scientific evidence" under Article 2.2, the relationship between the measure andthe risk assessment lacks the "rational" basis requir ed in order for the former to be "based on" the
latter.
 130
72. The United States therefore requests the Appellate Body to uphold the Panel's finding that
Japan's measure, with respect to mature, symptomless apples, is inconsistent with Japan's obligationsunder Article 5.1 of the  SPS Agreement .
                                                     
126United States' appellee's submission, para. 54, quoting Panel Report, para. 7.18.
127United States' appellee's submission, para. 55, quoting Panel Report, para.  8.289, in turn quoting
ibid., paras. 6.177 (Dr. Hale) and 6.180 (Dr. Smith).
128United States' appellee's submission, para. 56, qu oting Japan's appellant's submission, paras. 124
and 137.
129United States' appellee's submission, para. 59.
130Ibid., para. 60.WT/DS245/AB/R
Page 26
4. Article 11 of the DSU
(a) The Panel's objective assessment under Article 2.2 of the
SPS Agreement  
73. The United States understands Japan's argument under Article 11 of the DSU, with respect to
the Panel's fact-finding in paragraph 8.166 of the Panel Report, to challenge those conclusions only as
they apply to "immature apples". 131  The United States agrees with Japan that paragraph 8.166 of the
Panel Report should not be read to apply to "infected" apple fruit, but for reasons different from thoseproffered by Japan.
 132  The United States submits that the Panel was without authority to make any
finding on "immature apples" because the United States' claims and arguments were expressly limitedto "mature, symptomless" apples.
 133  Nevertheless, to the extent that Japan contests the Panel's
conclusions in paragraphs 8.166 and 8.168 in relation to mature apples, the United States contendsthat this claim is without merit.
74. The United States emphasizes that claims under Article 11 require a showing that the Panel
evinced "deliberate disregard" for evidence or "refuse[d] to consider", "willfully distort[ed]", or
"misrepresent[ed]" evidence.
 134  In the view of the United States, Japan has failed to meet this "high
standard". 135
75. First, the United States argues that the Panel had sufficient evidentiary basis for its fact-
finding in paragraph 8.166 of the Panel Report as to  mature, symptomless apples.  According to the
United States, the Panel cited studies that had found no vector for "calyx-infested discarded apples",in addition to the experts' statements that other means of completing the pathway were unsupportedby the available scientific evidence.
 136  In this regard, the United States submits that Japan's allegation
of a factual error in the Panel's reference to the existence of ooze as found by these studies, is
"irrelevant" to the Panel's finding as to mature, symptomless apples, because ooze can occur only in
"immature, infected" apples. 137
                                                     
131United States' appellee's submission, para. 8.
132Ibid. , para. 14.
133Ibid., para. 5.  See also, infra ,  paras. 82 ff.
134United States' appellee's submission, para. 10, citing Appellate Body Report, EC – Hormones ,
para. 133.
135United States' appellee's submission, para. 10.
136Ibid.
137Ibid., footnote 9 to para. 10.WT/DS245/AB/R
Page 27
76. Secondly, the United States argues that Japan's arguments regarding the "precautionary
principle" have already been rejected by the Appellate Body in  Japan – Agricultural Products II .
According to the United States, neither the text of the  SPS Agreement  nor the "precautionary
principle" compels a panel to find that a pathway for transmission of a disease exists where none of
the scientific evidence on record supports that conclusion.  This view, the United States claims, is
supported by the Appellate Body's discussion in  EC – Hormones  of the "precautionary principle".
Furthermore, the United States observes, Japan refers to the experts' statements of caution butacknowledges that "these expressions do not identify a concrete path of the dissemination of thedisease".
 138  Therefore, the United States concludes, the Panel properly refused to assume, on the
basis of generalized statements of "caution", that the pathway could be completed where no evidenceattests to that fact.
77. Finally, the United States challenges Japan's claim that the Panel considered the risk of
completion of the pathway to be more than theoretical.  The United States observes that the Panel
employed the term "unlikely" when characterizing the experts' views on the likelihood of completion
of the pathway, but claims that, in doing so, the Panel reflected the reality that science can never statewith certainty that an event will never occur.  In the view of the United States, this proper approach torisk analysis by the Panel should not be understood to suggest more than a theoretical risk oftransmission of fire blight from apple fruit.
78. The United States therefore requests the Appellate Body to find that the Panel properly
discharged its obligations under Article 11 of the DS U when finding that the last stage of the pathway
for transmission of fire blight from mature, symptomless apples would not be completed.
(b) The Panel's objective assessment under Article 5.1 of the
SPS Agreement  
79. The United States claims that Japan's challenges to the Panel's fact-finding in the course of its
Article 5.1 analysis are not properly before the Appellate Body.  The United States argues that, in
US – Countervailing Measures on Certain EC Products ,  the Appellate Body found that an appellant
raising an Article 11 claim must indicate such a claim in its Notice of Appeal.
 139  In the United States'
view, because Japan did not identify, in its Notice of Appeal, its Article 11 claim with respect to thePanel's findings under Article 5.1, Japan has not appealed this issue in accordance with Rule 20(2)(d)of the  Working Procedures .  Therefore, the United States contends, the Appellate Body should
decline to address this aspect of Japan's appeal.
                                                     
138United States' appellee's submission, para. 12, qu oting Japan's appellant's submission, para. 67.
139United States' appellee's submission, footnote 88 to para. 53.WT/DS245/AB/R
Page 28
80. Should the Appellate Body proceed to consider Japan's Article 11 claim with respect to the
Panel's analysis under Article 5.1, the United States argues, the Appellate Body should find that Japanhas not established the sort of "egregious errors" required to find that the Panel has not fulfilled therequirements under Article 11.
 140  In addition, according to the United States, Japan has not contested
other "deficiencies" identified in Japan's risk assessment by the experts and accepted by the Panel. 141
81. The United States thus requests the Appellate Body to dismiss Japan's claim that the Panel
failed to satisfy its obligations under Article 11 of the DSU in the course of evaluating the UnitedStates' claim under Article 5.1 of the  SPS Agreement .  Alternatively, the United States requests the
Appellate Body to find that these obligations were discharged properly by the Panel when it foundthat Japan's risk assessment did not evaluate adequately the likelihood of entry, establishment orspread of fire blight from apple fruit.
C. Claim of Error by the United States – Appellant
Claim on the "Authority" of the Panel
82. The United States argues that, because it presented claims relating only to "mature,
symptomless" apples, the Panel erred in analyzing the measure with respect to products other thanthose identified.  In particular, according to the United States, the Panel exceeded its authority by
making findings related to  immature   apples and to United States export control procedures.  The
United States requests the Appellate Body to "reverse the Panel's legal findings and declare thePanel's statements derived from those findings to be without legal effect."
 142
83. The United States asserts that the issue presented to the Panel was "whether Japan's
restrictions on mature, symptomless apples are consistent with the SPS Agreement, and not whetherJapan could maintain restrictions on any other product."
 143  The United States contends that it pursued
this approach because it was seeking to export only mature, symptomless apples to Japan, and that ithas laws and "extensive measures" to limit apple exports to apples with these characteristics.
 144
84. The United States notes that, although its claims were limited to mature apples, the Panel
concluded that the measure at issue should be evaluated in the light of its applicability to  all  apple
fruit, including immature apples.  As a result, according to the United States, the Panel also
                                                     
140United States' appellee's submission, para. 53, quoting Appellate Body Report, Japan – Agricultural
Products II ,  para. 141.
141United States' appellee's submission, para. 53, citing Panel Report, para. 8.279.
142United States' other appellant's submission, para. 3.
143Ibid., para. 6.
144Ibid., para. 7.WT/DS245/AB/R
Page 29
considered it appropriate to examine those issues related to "control procedures" and requirements for
the exportation of apples, because such measures affect whether apples exported to Japan couldinclude immature infected apples.
 145  The United States considers as flawed the rationale provided by
the Panel to justify its consideration of all apple fruit, and of United States export control procedures.
85. First, the United States contests the Panel's understanding that the reference in the United
States' request for the establishment of a panel to "apples" authorizes the Panel to make findings onapples other than "mature, symptomless" apples.  In particular, the United States challenges thePanel's reasoning that a request for the establishment of a panel "is not exclusively a limitation to [apanel's] jurisdiction, it defines it positively too."
 146  According to this logic, the United States argues,
panels may offer analysis and findings on  any  claims identified in the request for the establishment
of a panel, including those not pursued by the complaining party.  In the view of the United States,however, it is not the function of dispute settlement panels to conduct a  de novo  review and make
findings on claims not pursued, nor is it their function to "theorize" about arguments and evidence that
a complaining party  might   have advanced.
 147  Moreover, the United States contends that the Panel
ignored the limits of its investigative author ity recognized by the Appellate Body in  Japan –
Agricultural Products II ,  wherein the Appellate Body explained that "this authority cannot be used by
a panel to rule in favour of a complaining party which has not established a  prima facie  case  based
on specific legal claims asserted by it ." 148  The United States asserts that it made no  prima facie   case
with respect to immature apples, and that Japan offered no evidence that United States export controlprocedures would fail to ensure that only "mature, symptomless" apples were exported.  In the viewof the United States, therefore, the Panel had no basis to make findings  not  related to mature,
symptomless apples.
86. The United States also observes that the Panel's decision to make a finding based solely on
the wording of the claim in the United States' reque st for the establishment of a panel is inconsistent
with panel practice under the current dispute settlement mechanism.  The United States argues that,because panels have not made findings on abandoned claims, parties have been able to reasonablyassume that claims may be abandoned through lack of argumentation.  The Panel's reasoning in thiscase, according to the United States, "risks prejudicing one or both parties" because it "contravene[s]that assumption".
 149
                                                     
145United States' other appellant's submission, para. 8.
146Ibid. , para. 10, quoting Panel Report, para. 8.32.
147United States' other appellant's submission, para. 10.
148Ibid., para. 11, quoting Appellate Body Report, para. 129. (emphasis added by the United States)
149United States' other appellant's submission, para. 13.WT/DS245/AB/R
Page 30
87. Secondly, the United States challenges the Panel's claim that it had authority to make findings
related to immature apples on the basis of (i) the United States' evidence on its export controlprocedures and (ii) Japan's argument that the measure at issue would also address the entry ofimmature or infected apples due to possible lapses in those procedures.  The United States contends,
however, that it had made no  claim  with respect to immature apples and, as a result, the Panel had no
basis to review the measure in relation to immature apples.  Furthermore, in the view of the UnitedStates, Japan's concerns regarding the possible failure of United States export control procedurescould not justify the Panel's finding on immature apples because the sole question before the Panelrelated to the consistency of Japan's measure, as applied to "mature, symptomless" apples, withArticle 2.2.
88. Thirdly, the United States contends that the Panel erroneously asserted that the definition of
"sanitary measure" in paragraph 1 of Annex A to the  SPS Agreement   "does not limit the scope of
application of phytosanitary measures to the product that the exporting country claims to export.  In
order to be effective, a phytosanitary measure should cover all forms of a product that may actually be
imported."
 150  According to the United States, it is impossible to decide in the abstract what the
requirements may be for all phytosanitary measures that a Member might maintain on any product.  Inany event, the United States argues, the fact that a phytosanitary measure may address risks associatedwith  certain   types of a product does not mean that the measure conforms to a Member's obligations
under the  SPS Agreement   with respect to  all  types of a product.
89. Finally, because Japan's measure does not relate to export control procedure failures, the
United States claims that the Panel's findings on immature apples cannot be justified by reference to
the Appellate Body's acknowledgement in  EC – Hormones   that a risk assessment underlying a
measure may consider all scientific risks, whatever their origin, including risks from export controlprocedure failures.
90. Therefore, as the Panel exceeded its authority , in the view of the United States, in ruling on
matters beyond the scope of the dispute, the United States requests the Appellate Body to reverse thePanel's findings with respect to products other than "mature, symptomless" apples and to exportcontrol procedures, and to "declare the Panel's statements derived from those findings to be withoutlegal effect."
 151
                                                     
150United States' other appellant's submission, para. 16, quoting Panel Report, para. 8.119.
151United States' other appellant's submission, para. 3.WT/DS245/AB/R
Page 31
D. Arguments of Japan – Appellee
Claim on the "Authority" of the Panel
91. Japan claims that the Panel was, not only permitted to address the issue of "infected apple
fruit" on the basis of the scope of the Panel's terms of reference that cover Article 2.2 of theSPS Agreement  and United States apples "in general", but was also obligated to do so because the
issue of infected apple fruit was part of the  prima facie  case to be established by the United States.
 152
92. First, Japan disagrees with the United States' assertion that the Panel should not have
addressed the issue of "immature apples" based on the fact that a panel has authority to rule only on
specific claims made by the complainant. 153  Japan claims that this erroneous assertion involves two
legal principles that should not be confused.  The first principle, according to Japan, relates to the"scope of the dispute".
 154  Japan submits that the scope of the dispute is determined by the terms of
reference in the request for the establishment of a panel, such that a panel should not rule on mattersnot included in its terms of reference.  The second principle, in Japan's view, dictates the onus on thecomplaining party to establish a  prima facie   case within that scope of the dispute.
93. Regarding the "scope of the dispute" in the current case, Japan observes that Article 2.2 of the
SPS Agreement   is included in the Panel's terms of reference, and the United States' request for the
establishment of a panel makes reference to "US apples" generally, rather than specifically to "mature,
symptomless" apple fruit.  Japan submits that the Panel's discussion of infected apples underArticle 2.2 thus falls well within the scope of the dispute as defined by the request for theestablishment of a panel and the terms of reference.  According to Japan, addressing infected appleswas necessary in order for the Panel to achieve a "satisfactory settlement of the matter", as required inArticle 3.4 of the DSU;  the fact that the United States did not specifically mention "infected apples"does not deprive the Panel of its right to address this issue.
94. Concerning the second "principle", Japan asserts that the fact-finding authority of a panel
should not be confused with the requirement of establishing a  prima facie   case.  In Japan's view,
establishing a  prima facie   case is a "requirement of proof" imposed on the complaining party that
prevents a panel from finding facts in favour of the complaining party when that party has not assertedthose facts.
 155  Nevertheless, Japan argues, a panel may find facts not "asserted" by the complaining
                                                     
152Japan's appellee's submission, para. 2.
153Ibid. , para. 3.
154Ibid., para. 4.
155Ibid., para. 8.WT/DS245/AB/R
Page 32
party if those facts are "asserted" by the respondent. 156  Japan alleges that the assertion of a particular
factual claim, even if proven, may not be sufficient to establish a  prima facie   case under the relevant
provisions.  More specifically, Japan claims, "in order to establish a  prima facie   case of insufficient
scientific evidence under Article 2.2 of the SPS Agreement, the complaining party must establish that
there is not sufficient scientific evidence for  any  of the perceived risks underlying the measure, or
that the measure is otherwise not supported by sufficient scientific evidence." 157  Thus, in the present
case, Japan argues, because the issue of "infected apples" is related to the risk addressed in Japan'sphytosanitary measure, the United States should have established a  prima facie   case covering
infected apples  in addition to   mature, symptomless apples.
95. Japan further argues that, although the Panel acted properly in addressing infected apple fruit,
the Panel erred in shifting to Japan the burden of proof on the establishment of the risk of completionof the pathway through infected apple fruit.  In Japan's view, it was the United States' burden toestablish that it would ship only "mature, symptomless" apples.
 158  Japan contends that, because the
United States failed to discharge this burden, the only way for the United States to establish a  prima
facie   case would be to prove the insufficiency of scientific evidence supporting the view that the
pathway could be completed for  infected   apple fruit.  According to Japan, this had not been
demonstrated by the United States, and, therefore, the burden of proof should not have been shifted.
96. Japan contests the United States' claim that Japan failed to submit evidence on the
inappropriateness of the "U.S. [export] control procedures". 159  Japan submits that the United States,
not Japan, bore the obligation of proving the efficacy of United States export control procedures forapples.  Moreover, Japan observes, it did submit evidence on the failure of United States export
control procedures in one specific case, where apple fruit harbouring codling moth larvae was shipped
to the Separate Customs Territory of Taiwan, Pe nghu, Kinmen, and Matsu.  Japan submits that this
case is "[i]ndisputable evidence that the U.S. [export] control procedures are prone to failure and thatthey did fail."
 160  This evidence was not contested by the experts, nor was it rebutted by the United
States, even though it had "ample opportunities" to do so. 161  Notwithstanding these points, Japan
argues that the United States' claim regarding the adequacy of its export control procedures raises anissue of fact already decided by the Panel, and the claim should therefore be dismissed by theAppellate Body.
                                                     
156Japan's appellee's submission, para. 8 .
157Ibid., para. 9. (original italics)
158Ibid. , para. 12.
159Ibid., para. 14, quoting United States' other appellant's submission, para. 4.
160Japan's appellee's submission, para. 17.
161Ibid., paras. 21-22.WT/DS245/AB/R
Page 33
97. Japan therefore requests the Appellate Body to reject the United States' appeal on the findings
of the Panel under Article 2.2 of the  SPS Agreement .
E. Arguments of the Third Participants
1. Australia
98. Australia agrees with Japan that the Panel misinterpreted and misapplied Article 2.2 of the
SPS Agreement   and, in doing so, erred in law in finding that Japan acted inconsistently with its
obligations thereunder.  Concerning the interpretation of Article 2.2, Australia considers that the Panel
erred by introducing a requirement under this provision for a phytosanitary measure to be "justified"
by the relevant scientific evidence, and not to be "disproportionate" to the identified risk.  InAustralia's view, this requirement is not supported by the text of Article 2.2 and suggests that the
Panel incorporated improperly into that provision the substantive obligations set forth separately inArticles 5.1, 5.3, and 5.6.  In doing so, according to Australia, the Panel undermined the negotiatedbalance of rights and obligations in the  SPS Agreement .
99. Australia submits that "Article 2.2 operates to ensure that the body of available scientific
evidence related to the risk addressed by the measure is adequate for an assessment of risk requiredunder Article 5.1, but does not include a requirement for the actual measure applied by the Member to
be justified by the scientifically identified risk."
 162  According to Australia, to read Article 2.2 as
requiring a phytosanitary measure to be "justified" by sufficient scientific evidence, as the Panel did,converts impermissibly the phrase "not maintain ed without sufficient scientific evidence" in
Article 2.2 to the phrase "not supported by sufficient scientific evidence".
 163  Instead, Australia
argues, the issue of whether a phytosanitary measure is "justified" by scientific evidence should beevaluated under Articles 3 and 5 of the  SPS Agreement .
100. Regarding the application of Article 2.2, assuming the Panel's interpretation were correct,
Australia agrees with Japan that the Panel held implicitly that Japan should bear the burden of proof inestablishing that the last stage of the pathway through infected fruit would be completed.  Citing the
Appellate Body Reports in  US – Wool Shirts and Blouses  and  Japan – Agricultural Products II ,
Australia submits that the complaining party has the burden of establishing a  prima facie   case of
inconsistency with Article 2.2.  Although the United States could have satisfied this burden byestablishing a presumption that sufficient scientific evidence did not exist, according to Australia, thePanel failed to make any assessment of whether the United States had raised the necessary
                                                     
162Australia's third participant's submission, para. 28.
163Ibid., para. 30.WT/DS245/AB/R
Page 34
presumption with respect to the risk from  infected   apple fruit.  Australia notes that the United States
made no assertion and presented no evidence on  infected   apple fruit.  Therefore, Australia argues,
the Panel erred in law by making findings on claims concerning apples other than mature,symptomless apples in the absence of any legal arguments or evidence brought by the United States in
support of these claims.  In Australia's view, "the legal effect of a reversal of the Panel’s findings on
apples other than mature symptomless apples must lead to the conclusion that the United States failedto make a  prima facie  case in relation to the specific legal claim on the consistency of Japan’s
measures under Article 2.2."
 164
101. Australia also agrees with Japan that the Panel made errors of law and interpretation with
respect to Article 5.7 of the  SPS Agreement ,  but "does not share Japan's views on the interpretation
of Article 5.7." 165  Recalling the findings of the Appellate Body in  US – Wool Shirts and Blouses ,
EC – Hormones ,  and  EC – Sardines ,  Australia argues that a complaining Member bears the burden
of proof in establishing a measure's inconsistency with any provision that is a "fundamental part of the
rights and obligations of WTO Members". 166  In Australia's view, these cases also make clear that this
burden cannot be discharged merely by characterizing the relevant provision as an "exception"because certain exceptions may nevertheless constitute a "fundamental part of the rights andobligations of WTO Members".  In Australia's view, Article 5.7 of the  SPS Agreement  is such an
exception because the provision establishes an importing Member's right to impose provisionalphytosanitary measures, subject to certain conditions found by the Appellate Body in  Japan –
Agricultural Products II .
 167  Therefore, according to Australia, Article 5.7 does not stand in a "general
rule-exception" relationship with Article 2.2 that would warrant reversing the burden of proof
normally placed on the complaining Member. 168
102. Australia further submits that the Panel made several errors in its legal interpretation of
Article 5.1 of the  SPS Agreement .  First, Australia agrees with Japan that the Panel erred in its
interpretation of the definition of a risk assessment under Article 5.1 of the  SPS Agreement .  Australia
submits that the Panel misinterpreted the requirement of "specificity" as applying to the "product atissue" in the context of the risk assessment
 169, erroneously introducing a "new standard" 170 of
                                                     
164Australia's third participant's submission, para. 47.
165Ibid. , para. 48.
166Ibid., para. 55, quoting Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR 1997:I,
323, at 337.
167Australia's third participant's submission, para. 66, referring to Appellate Body Report, para. 89.
168Australia's third participant's submission, paras. 65 and 68, citing Appellate Body Report,
EC – Hormones , para. 104 and Appellate Body Report, EC – Sardines , para. 275.
169Australia's third participant's submission, para. 78.
170Ibid., para. 76.WT/DS245/AB/R
Page 35
"specificity" that is not warranted by the text of the  SPS Agreement .  In Australia's view, the
Appellate Body findings in  EC – Hormones ,  consequently applied by the panel in  Australia –
Salmon ,  discussed "specificity" in the context of requiring a risk assessment to be related to the "risk
at issue", not to the "product at issue". 171  Therefore, Australia agrees with Japan that the fact that the
1999 PRA assessed the probability of transmission by more than one vector is not a sufficient basis
alone  for determining that Japan did not assess properly the probability of transmission of fire blight
through apple fruit.
103. Secondly, Australia submits that the Panel "mistakenly" 172 relied on the phrase "as
appropriate to the circumstances" in Article 5.1 as context when interpreting "measures which mightbe applied" in paragraph 4 of Annex A to the  SPS Agreement .  According to Australia, whatever
flexibility may be afforded an importing Member in the conduct of its risk assessment by the phrase"as appropriate to the circumstances", such flexibil ity cannot be interpreted to "annul or supersede the
substantive requirements for a valid risk assessment."
 173
104. Thirdly, Australia submits that there is no legal or textual basis to impose a requirement on a
Member to update its completed risk assessment every time new scientific evidence becomesavailable or existing evidence is challenged.  In Australia's view, the obligation under Article 5.1 for aMember to ensure that its "measures are based on an assessment … of risks" is a constant andobjective requirement, which may be assessed by the Panel at the time of its inquiry.  However,concerning the conditions for a "risk assessment" under the  SPS Agreement ,  as identified by the
Appellate Body in  Australia – Salmon ,  Australia argues that once a risk assessment has met these
conditions, its validity is not subject to ongoing review.
 174  Thus, in Australia's view, new scientific
evidence is relevant under Article 5.1 for the purpose of determining whether a rational relationship
exists between the measure and the risk assessment, but not for determining whether a particular riskassessment continues to satisfy the definition of a "risk assessment" in Annex A to theSPS Agreement .  In the light of the Panel's errors in interpreting Article 5.1, Australia supports Japan's
request to reverse the Panel's findings accordingly.
105. Australia additionally claims that, with respect to the Panel's failure to make an "objective
assessment of the matter" before it, as required under Article 11 of the DSU, Japan's allegations "havemerit and deserve close attention".
 175  In particular, Australia agrees with Japan's allegation that the
                                                     
171Australia's third participant's submission, para. 77.
172Ibid. , para. 82.
173Ibid., para. 83.
174Ibid., para. 86.
175Ibid., para. 92.WT/DS245/AB/R
Page 36
Panel failed to make an objective assessment in its analysis under Article 5.1 because it failed to
consider all relevant evidence before it.  In Australia's view, despite the fact that the Panel indicatedthat it would consider other materials  in addition to   the 1999 PRA, the Panel does not appear to have
gone beyond the 1999 PRA in its examination of evidence.  Australia submits that the "Panel’s
decision to rely heavily on one piece of evidence in its Report, and not to refer to all relevant evidence
in its analysis, is a violation of Article 11."
 176  Moreover, Australia asserts, the Panel failed to meet
the criteria for an objective assessment described in previous Appellate Body Reports because of itsfailure to provide "adequate reasoning" to support its findings.
 177
2. Brazil
106. Brazil agrees with the interpretation given by th e Panel to Article 5.7 and its conclusion that
the measure at issue did not satisfy the first requirement of Article 5.7, namely that this be a case
"where relevant scientific evidence is insufficient".
3. European Communities
107. The European Communities agrees with the United States that the Panel should have
refrained from making findings with respect to "immature, possibly infected apples" 178, on which the
United States had not made any claim.  The European Communities asserts, however, that the Panel's
error should not affect merely the  scope   of the Panel's findings, but rather the Panel's findings on the
merits of the case.  The European Communities contends that, in the absence of a  prima facie  case
made out by the United States, which required the production of evidence related to  all  apples, the
Panel should have reached the conclusion that the United States had failed to prove theincompatibility of the measure at issue with the  SPS Agreement .
108. The European Communities argues that the Panel should have begun its analysis by focusing
on the risk sought to be addressed by the measure at issue.  Instead, in the European Communities'view, the Panel erroneously concluded that it was relevant to differentiate between the risks related tomature and apparently healthy apple fruit, and those related to other apples.  By drawing this
distinction and analyzing separately the case of apples other than mature, symptomless apples, the
European Communities submits, the Panel "made a case for the complainant".
 179  According to the
European Communities, the United States had argued that  mature, symptomless apple fruit representsno risk of fire blight transmission and hence presented a  prima facie  case only for this particular type
                                                     
176Australia's third participant's submission, para. 98. (footnotes omitted)
177Ibid. , para. 98.
178European Communities' third participant's submission, para. 4.
179Ibid., para. 10.WT/DS245/AB/R
Page 37
of apple, not for any other.  The European Co mmunities emphasizes that if the premise assumed in
any analysis of a phytosanitary measure is that only "hazard-free goods" are exported, then nodomestic measure will ever be found to be consistent with the  SPS Agreement .
 180  The European
Communities argues that if a complainant desires to base its claim on the fact that it exports solely
"hazard-free goods", it should bear the burden of presenting "convincing evidence showing that there
is no possibility of fraud or negligence or accident", particularly when there are large volumes ofexports of that commodity.
 181
109. Therefore, the European Communities submits that the United States should have established
a  prima facie  case showing that Japan's measure was not necessary or was disproportionate,
including with respect to the importation of  infected   fruit.  Alternatively, the European Communities
contends, the United States should have provided evidence establishing that  only non-infected   fruit
would be exported.  Because the United States failed  to make any claim or submit any evidence in this
respect, and as the Panel found on the basis of the experts' advice that there may be errors of handling
or illegal actions, the European Communities agrees with Japan that the Panel should have concluded
that the United States failed to make a  prima facie   case on the inconsistency of the measure at issue
with the  SPS Agreement.
110. The European Communities further disagrees wi th the Panel's allocation of the burden of
proof under Article 2.2.  In the European Communities' view, once the Panel found that the scientificevidence was not sufficient to justify the measure as applied to "mature, symptomless apples"
 182, it
allocated improperly to Japan the burden of proof as regards the risk of completion of the pathway inimmature, infected   apple fruit, for which the United States had submitted no evidence at all.  Because
the United States had not made a  prima facie   case with respect to apples other than mature,
symptomless apples, according to the European Communities, the Panel erred in prematurely shiftingthe burden of proof to Japan.
111. With respect to the Panel's analysis under Article 5.7 of the  SPS Agreement ,  the European
Communities argues that the Panel erred in treating Article 5.7 as an "affirmative defence to aviolation of Article 2.2" and in its interpretation of the term "insufficient".
 183  Citing the Appellate
Body Report in  EC – Hormones , the European Communities argues that Article 5.7 is not, by
its nature, an exception, despite the phrase "except as provided in Article 5.7 " at the end of
                                                     
180European Communities' third participant's submission, para. 11.
181Ibid.
182Ibid., para. 16.
183Ibid., paras. 14 and 21.WT/DS245/AB/R
Page 38
Article 2.2. 184  The European Communities submits that Article 5.7 contains its own set of obligations
and that it creates an "autonomous right" to take provisional measures. 185  The European
Communities claims that the autonomous nature of this right is confirmed in  Japan – Agricultural
Products II ,  wherein the Appellate Body explained how a measure may be inconsistent with
Article 5.7 in and of itself.  Accordingly, in the European Communities' view, it is for the
complaining   party to demonstrate an inconsistency with Article 5.7.  Therefore, the European
Communities contends that the Panel erred with respect to the allocation of the burden of proof underArticle 5.7.
112. As to the Panel's interpretation of Article 5.7, the European Communities argues that the
phrase "[i]n cases where relevant scientific evidence is insufficient" refers to precise occurrencesrather than general phenomena.  As a result, the European Communities submits that the applicationof provisional measures under Article 5.7 is permissible in situations where there is insufficientscientific evidence on a "specific issue" that is "key" to defining the nature or extent of a risk, despite
the existence of "general information on a given subject".
 186  Moreover, the European Communities
contends, the term "insufficient evidence" can cover evidence that is "incomplete" or "unconvincing",even if there is a large volume of such evidence.
 187  In this regard, the European Communities argues,
the sufficiency of the evidence may change over time, for example, as new research casts doubt on thecorrectness of previously sufficient studies.  Th us, according to the European Communities, the Panel
erred by interpreting "insufficient evidence" narrowly so as to examine the sufficiency of existingevidence solely on a quantitative rather than a qualitative basis.
4. New Zealand
113. New Zealand agrees with the United States that the Panel should not have made findings with
respect to immature apples.  In New Zealand's view, the United States' claims were related to theWTO-consistency of Japan's measure as that measure applied to  mature   apples, not to other
products, such as immature apples.  New Zealand asserts that the Panel acted contrary to "establishedWTO jurisprudence regarding the burden of proof" because it made findings as to issues on which aprima facie  case was not established by the complaining party.
 188  Accordingly, New Zealand
                                                     
184See  European Communities' third participant's submission, para. 22, citing Appellate Body Report,
para. 104.
185European Communities' third participant's submission, para. 24.
186Ibid. , para. 32.
187Ibid., para. 33.
188New Zealand's third participant's submission, para. 3.35.WT/DS245/AB/R
Page 39
submits that the Appellate Body should reverse the Pa nel's legal findings in respect of immature apple
fruit and "declare the Panel's statements derived from those findings to be without legal effect." 189
114. As to the interpretation of Article 2.2, New Zealand contests Japan's claim that Article 2.2
should be understood to "allow a certain degree of discretion ... on the part of an importing member to
determine the value of the evidence to it and to introduce a particular measure thereon." 190  N e w
Zealand argues that Article 2.2 provides no basis for such a "certain degree of discretion".  Instead,according to New Zealand, Article 2.2 requires a rational or objective relationship between thephytosanitary measure and the scientific evidence, and an importing Member's method of evaluatingscientific evidence must necessarily be consistent with this requirement of rationality.  In NewZealand's view, the "logical conclusion" of Japa n's argument is that importing Members would be
permitted to accord little weight to relevant scientific evidence and thereby impose phytosanitarymeasures that have no rational relationship with such evidence.
 191
115. With respect to the United States'  prima facie  case under Article 2.2 for mature apples, New
Zealand argues that Japan has failed to establish an error in the Panel's analysis.  First, New Zealand
rejects as a basis for error Japan's claim that the Panel evaluated improperly the scientific evidence onthe basis of the experts' statements rather than of the views of the importing Member in this case.  Notonly did the Panel discount the value of the evidence  cited by Japan, New Zealand claims, but Japan's
reasoning would preclude panels from ever considering scientific evidence that contradicts the viewsof the importing Member.  Such subjectivity accorded an importing Member, in the view of NewZealand, is inconsistent with the objective relationship that must exist between the phytosanitarymeasure and the scientific evidence under Article 2.2.
116. Secondly, New Zealand disagrees with Japan's claim that the United States failed to establish
the absence of scientific evidence on material aspects of the risk sought to be addressed by Japan.New Zealand claims that Japan "mischaracterises" the criteria set out by the Panel for a  prima facie
case to be made by the United States.
 192  New Zealand states that the Panel, after rejecting Japan's
claim that the United States was required to prove positively the insufficiency of the scientificevidence, relied on the Appellate Body Report in  Japan – Agricultural Products II  to find that a
prima facie  case would be made where the United States had raised a  presumption  that sufficient
scientific evidence did not exist.  Once the Panel found that the presumption had been raised,
                                                     
189New Zealand's third participant's submission, para. 3.36.
190Ibid., para. 3.09, quoting Japan's a ppellant's submission, para. 76.
191New Zealand's third participant's submission, para. 3.10.
192Ibid., para. 3.16.WT/DS245/AB/R
Page 40
New Zealand argues, the Panel weighed the evidence before it and found that Japan had not rebutted
the presumption.  Therefore, in New Zealand's view, the Panel properly found that a  prima facie  case
had been made by the United States on its claim in respect of mature apples under Article 2.2.
117. New Zealand agrees with the Panel's analysis relating to Article 5.7 of the  SPS Agreement ,
because the Panel found that the "wealth of scientific evidence"—either "in general"  or  in relation to
specific aspects of the risk—demonstrates that the issue of the risk of transmission of fire blightthrough mature apple fruit is not one upon which there is insufficient relevant scientific evidence asrequired under Article 5.7.
 193  In New Zealand's view, therefore, Japan is incorrect to suggest that the
Panel failed to consider the sufficiency of scientific evidence as to the particular elements of the riskat issue.  Moreover, concerning Japan's argument that the elimination of the measure would create"new uncertainty", New Zealand submits that this dispute is concerned with the measure at issue, notwith measures that may be in place in hypothetica l circumstances at some point in the future.  As
such, the possible uncertainty created by the development of a  new  phytosanitary measure cannot be
relied upon to cure the WTO-inconsistency of the  existing   measure.
118. New Zealand further submits that the Panel's findings in relation to Article 5.1 of the
SPS Agreement   are correct and should be upheld.  New Zealand agrees with the Panel that Japan's
risk assessment was not sufficiently specific to the matter at issue.  In New Zealand's view, theevaluation of the likelihood of entry, establishment and spread of the disease specifically from matureapple fruit is more than an issue of procedure or methodology, as Japan alleges, but a "substantiverequirement" of Article 5.1.
 194  This requirement, according to New Zealand, does not prevent an
importing Member's selection of methodology for conducting its risk assessment, nor does it prevent
importing Members from considering several possible hosts simultaneously, provided that aconclusion as to the risk is drawn with respect to the  particular commodity  at issue.
119. New Zealand also contests Japan's claim that it has conducted an appropriate risk assessment
"in the course of this proceeding".
 195  New Zealand finds it "astonishing" that Japan "essentially" asks
the Appellate Body to find that, on the basis of evidence and arguments advanced by Japan in thisdispute, Japan has conducted an "informal" risk assessment that satisfies the standard required by theSPS Agreement .
 196  In New Zealand's view, the requirement under Article 5.1 of basing measures on a
                                                     
193New Zealand's third participant's submission, para. 3.19.
194Ibid. , para. 3.30.
195Ibid., para. 3.25, quoting Japan's a ppellant's submission, para. 124.
196New Zealand's third participant's submission, para. 3.27.WT/DS245/AB/R
Page 41
risk assessment would be rendered "devoid of any meaning" because, according to Japan's rationale,
an importing Member could avoid conducting a risk assessment until challenged in a disputesettlement proceeding, at which point a " post  facto  risk assessment" would be found to satisfy
Article 5.1.
 197  Accordingly, New Zealand requests the Appellate Body to uphold the Panel's findings
under Article 5.1 of the  SPS Agreement .
IV. Preliminary Issue:  Sufficiency of the Notice of Appeal
120. We begin our analysis of this appeal with a preliminary issue related to the sufficiency of the
Notice of Appeal filed by Japan. 198  In its appellee's submission, the United States argues that Japan's
claim under Article 11 of the DSU, as it relates to the Panel's findings under Article 5.1 of theSPS Agreement ,  is not properly before us and requests that we dismiss this aspect of the appeal.
 199
According to the United States, Japan did not properly raise this Article 11 claim in its Notice of
Appeal, as required by Rule 20(2)(d) of the  Working Procedures   and in the light of the Appellate
Body's decision in  US – Countervailing Measures on Certain EC Products .  As a result, the United
States asserts, it did not receive the requisite notice of this issue on appeal.
121. Rule 20(2) of the  Working Procedures  sets forth the "information" that must be contained in
a Notice of Appeal:
Commencement of Appeal
…
A Notice of Appeal shall include the following information:
(a) the title of the panel report under appeal;
(b) the name of the party to the dispute filing the Notice
of Appeal;
(c) the service address, telephone and facsimile numbers
of the party to the dispute;  and
(d) a brief statement of the nature of the appeal,
including the allegations of errors in the issues of law
covered in the panel report and legal interpretationsdeveloped by the panel.
                                                     
197New Zealand's third participant's submission, para. 3.28.
198WT/DS245/5, supra , footnote 8, attached as Annex 1 to this Report.
199United States' appellee's submission, para. 53 and footnote 88 thereto.WT/DS245/AB/R
Page 42
The Appellate Body recognized, in  US – Countervailing Measures on Certain EC Products :
… the important balance that must be maintained between the right
of Members to exercise the right of appeal meaningfully andeffectively, and the right of appellees to receive notice through the
Notice of Appeal of the findings under appeal, so that they may
exercise their right of defence effectively.
 200
The Appellate Body observed in that case that the requirements identified in Rule 20(2) for inclusion
in a Notice of Appeal "serve to ensure that the appellee also receives notice, albeit brief, of the 'nature
of the appeal' and the 'allegations of errors' by the panel." 201  Thus, an evaluation of the sufficiency of
a Notice of Appeal must examine whether the appellee received notice therein of the issues to beargued on appeal.
122. In  US – Countervailing Measures on Certain EC Products ,  the Appellate Body considered
an appellee's challenge to the sufficiency of a Notice of Appeal on the basis that,  inter alia ,  the
Notice of Appeal had not provided the appellee with the requisite notice of the appellant's claim underArticle 11 of the DSU.  The appellant had alleged in its written and oral submissions that the Panelhad failed to make an "objective assessment of the matter before it", as required by Article 11.
 202
When considering whether the appellee had been given notice of the Article 11 challenge, the
Appellate Body reviewed the Notice of  Appeal and observed as follows:
We do not find any explicit reference to Article 11 of the DSU, or to
the language of Article 11 in the Notice of Appeal, or in the
attachment to the letter of 13 September 2002.  Nor can we discern in
either of them any suggestion that the United States was alleging that
the Panel failed to make an objective assessment of the matter before
it, or an objective assessment of the facts of the case. 203
123. The Appellate Body rejected in that case the appellant's submission that its Article 11
challenge was merely an  argument  supporting the broader  claim  raised on appeal with respect to
other WTO provisions and that, therefore, no further clarification was required in the Notice ofAppeal. 
204  In doing so, the Appellate Body acknowledged that claims on appeal under Article 11 of
the DSU are unique when compared with other claims of legal error committed by a panel:
                                                     
200Appellate Body Report, para. 62.
201Appellate Body Report, US – Countervailing Measures on Certain EC Products , para. 62.
202Ibid. , paras. 27 and 73.
203Ibid. , para. 72.
204Ibid. , paras. 73-74.WT/DS245/AB/R
Page 43
A  claim  of error by a panel under Article 11 of the DSU is possible
only in the context of an appeal.  By definition, this  claim  will not
be found in requests for establishment of a panel, and panels
therefore will not have referred to it in panel reports.  Accordingly, if
appellants intend to argue that issue on appeal, they must refer to it inNotices of Appeal in a way that will enable appellees to discern it
and know the case they have to meet. 
205 (original italics)
Therefore, the Appellate Body concluded that the appellee could not have had notice that the
appellant intended to challenge the consistency of the panel's evaluation with its obligations underArticle 11, and that the appellant sought to have the Appellate Body rule on that matter.
 206
124. We likewise examine in this case the Notice of Appeal filed by Japan to evaluate whether the
United States was on notice that Japan would make  claims on appeal unde r Article 11 of the DSU.
Japan claims to have raised on appeal two separate  challenges under Article 11 of the DSU:  one with
respect to the Panel's evaluation of the United States' claim under Article 2.2 of the  SPS Agreement ,
and one with respect to the Panel's evaluation of the United States' claim under Article 5.1 of thatagreement.
 207  Japan's Notice of Appeal identifies, in relevant part, the following alleged legal errors
as issues on appeal:
1. The Panel erred in law in finding that Japan acted
inconsistently with its obligations under Article 2.2 of the SPS
Agreement.  This finding reflects the Panel's erroneous interpretation
of the rule of burden of proof, and the Panel's failure to make an
objective assessment of the matter before it under Article 11 of theDSU.
…
3. The Panel erred in law in finding that Japan's phytosanitary
measure was not based on a risk assessment within the meaning of
Article 5.1 of the SPS Agreement.  This finding is based on an
erroneous interpretation of the requirements of a risk assessment
under Article 5.1.
125. Japan's intention to contest the Panel's analysis  under Article 2.2  as inconsistent with the
requirements of Article 11 of the DSU is set out clearly and unambiguously.  As to the Panel'sanalysis  under Article 5.1 ,  however, we note the conspicuous absence of any reference to Article 11
of the DSU, or to the standard of "objective assessment" established in that provision.  Indeed, wefind in the Notice of Appeal no reference to Article 11 or to the "objective assessment" standard set
out therein other than in the context of Article 2.2, quoted above.
                                                     
205Appellate Body Report, US – Countervailing Measures on Certain EC Products , para. 74.
206Ibid. , para. 75.
207Japan's appellant's submission, paras. 47-70 (Ar ticle 2.2) and paras. 130-132 (Article 5.1).WT/DS245/AB/R
Page 44
126. By referring to the Panel's alleged failure to comply with Article 11 of the DSU only in the
context of Article 2.2, Japan did not enable the United States to "know the case [it had] to meet" 208 as
to the Article 11 claim related to Article 5.1 of the  SPS Agreement .  The Appellate Body has
consistently emphasized that due process requires that a Notice of Appeal place an appellee on notice
of the issues raised on appeal. 209  It is this concern with due process, reflected in Rule 20 of the
Working Procedures ,  that underlay the Appellate Body's ruling on the sufficiency of the Notice of
Appeal in  US – Countervailing Measures on Certain EC Products .
127. Japan acknowledged during the oral hearing that it did not give the United States notice of its
Article 11 claim specifically with respect to the Panel's analysis under Article 5.1 of theSPS Agreement .
 210  Japan claimed, however, that "since we raised the claim under Article 5.1 of the
SPS Agreement ,  this naturally involved some factual issues and ... we can assume that the United
States was notified" as to the related Article 11 claim. 211  We disagree.  As noted above 212, the
Appellate Body determined in  US – Countervailing Measures on Certain EC Products  that
Article 11 claims are distinct from those raised under substantive provisions of other covered
agreements.  It follows from this distinction that notice of an Article 11 challenge cannot be"assumed" merely because there is a challenge to a panel's analysis of a substantive provision of aWTO agreement.  Rather, an Article 11 claim constitutes a "separate 'allegation of error'
 " 213 that must
be included in a Notice of Appeal.  We therefore reject Japan's assertion that an Article 11 challengeis only a "legal argument" underlying the issues raised on appeal.
 214
                                                     
208Appellate Body Report,  US – Countervailing Measures on Certain EC Products , para. 74.
209For example, Appellate Body Report, US – Offset Act (Byrd Amendment ), para. 195;  Appellate Body
Report,  US – Countervailing Measures on Certain EC Products , para. 62;  Appellate Body Report,
EC – Bananas III , para. 152;  and Appellate Body Report, US – Shrimp , para. 97.
210Japan's response to questioning at the oral hearing.
211Ibid.
212Supra , para. 123, quoting Appellate Body Report, US – Countervailing Measures on Certain EC
Products , para. 74.
213Appellate Body Report,  Chile – Price Band System , para. 182, quoting Rule 20(2)(d) of the  Working
Procedures .  In this respect, we note the distinction between  claims  and  arguments  in the context of
determining whether claims have been properly identified in the request for the establishment of a panel
(Appellate Body Report, EC – Bananas III , paras. 141-143;  Appellate Body Report, EC – Hormones ,
para. 156), and we affirm the Appellate Body's observation in  Chile – Price Band System  that "this distinction
between claims and legal arguments under Article 6.2 of the DSU is also relevant to the distinction between'allegations of error' and legal arguments as contemplated by Rule 20 of the  Working Procedures ." (Appellate
Body Report, para. 182)
214Japan's response to questioning at the oral hearing.  As discussed, supra , at paragraph 123, the
Appellate Body rejected a similar contention by the appellant in  US – Countervailing Measures on Certain EC
Products . (Appellate Body Report, paras. 73-74)  The Appellate Body made a similar observation in  US – Steel
Safeguards . (Appellate Body Report, para. 498)WT/DS245/AB/R
Page 45
128. Under these circumstances, we agree with the United States that it could not have been on
notice that Japan intended to raise an Article 11 challenge to the Panel's evaluation of the UnitedStates' Article 5.1 claim.  Accordingly, we find that the issue of the Panel's compliance withArticle 11 of the DSU, with respect to its analysis  of the United States' claim under Article 5.1 of the
SPS Agreement ,  is not properly before us in this appeal.  Consequently, we do not rule on this
issue.
 215
V. Issues Raised in This Appeal
129. Japan raises the following four claims, namely, that the Panel:
(i) erred in finding that Japan's phytosanitary measure is "maintained without sufficient
scientific evidence" and is therefore inconsistent with Japan's obligations underArticle 2.2 of the  SPS Agreement ;
(ii) erred in finding that Japan's phytosanitary measure is not a provisional measure under
Article 5.7 because the measure was not imposed in respect of a situation where"relevant scientific evidence is insufficient";
(iii) erred in finding that Japan's phytosanitary measure was not based on a risk
assessment, as defined in Annex  A to the  SPS  Agreement ,  and as required by
Article 5.1 thereof;  and
(iv) failed to comply with its duty under Article 11 of the DSU because it did not conduct
an "objective assessment of the facts of the case".
130. In addition to Japan's claims on appeal, the United States cross-appeals the Panel Report,
claiming that the Panel did not have the "authority" to make findings and draw conclusions withrespect to  immature   apples because the United States had limited its claims before the Panel to
mature  apples.
                                                     
215Japan's allegations under Article 11 of the DSU, as they relate to the Panel's analysis of Article 2.2 of
the  SPS Agreement ,  are addressed  infra , at paragraphs 217-242.WT/DS245/AB/R
Page 46
VI. Claim on the "Authority" of the Panel
131. It is convenient to begin our analysis of the issues raised on appeal with the question of the
"authority" of the Panel raised by the United States. 216  In the course of its analysis of whether Japan's
measure is "maintained without sufficient scientific evidence" within the meaning of Article 2.2 of theSPS Agreement ,  the Panel sought to evaluate the risk that apple fruit exported by the United States
would serve as a pathway for the entry, establishment and spread of fire blight in Japan.  Although theUnited States claims that it exports only mature, symptomless apples to Japan, the Panel did not limitits examination to the risk related to mature, sy mptomless apples;  it also considered the risk
associated with apples other than mature, symptomless apple fruit.  It did so because Japan had arguedthat apples other than mature, symptomless apples could be imported as a result of human or technical
error, or illegal actions, and the Panel thought that such risks could be "legitimately considered" by
Japan.
 217  Thus, the Panel concluded that it was entitled to address Japan's assertion that a risk of
introduction of fire blight in Japan "could result from a malfunction in the sorting of apples or [from]illegal action in the country of exportation",
 218 and rejected the proposition that it should limit its
findings to mature, symptomless apples simply because "the United States apparently limits itsclaims, arguments and evidence to [such apples]."
 219
132. The United States contends on appeal that the Panel had no authority to make findings and
draw conclusions with respect to "immature apples" because the United States advanced no claimregarding such apples.
 220  In support of its assertion that a panel cannot rule on a claim that has not
been put forward by the complainant, the United States relies on the Appellate Body Report in  Japan
– Agricultural Products II ,  where the Appellate Body stated that a panel cannot use its investigative
authority "to rule in favour of a complaining party which has not established a  prima facie  case [of
inconsistency] based on specific legal claims asserted by it ." 221 The United States explains that it
                                                     
216We note that the United States argues that a panel cannot "offer analysis and findings" on a claim
that was not pursued by the complainant, even though the claim was initially raised in a panel request. (UnitedStates' other appellant's submission, para. 10)  In other words, the United States contends that a panel does not
have the "authority" to make findings and draw conclusions on such a claim. ( Ibid. )  In response to questioning
at the oral hearing, the United States indicated that it had not specifically made a "terms of reference claim".
We understand from the submissions of the United States that it does not challenge on appeal the "jurisdiction"
of the Panel, as defined by the terms of reference, to make findings and draw conclusions on apples exportedfrom the United States to Japan;  rather, the United States contends that the Panel did not have the "authority" tomake findings and draw conclusions with respect to a clai m that the United States did not pursue, that is, a claim
relating to apples other than mature, symptomless ones.
217Panel Report, paras. 8.85, 8.121, and 8.174.
218Ibid. , para. 7.31.
219Ibid.
220United States' other appellant's submission, paras. 3 and 15.
221Ibid. , para. 11, quoting Appellate Body Report, para . 129. (emphasis added by the United States)WT/DS245/AB/R
Page 47
exports only mature, symptomless apples to Japan and that it has both laws and extensive measures in
place to limit apple exports to mature, symptomless apple fruit. 222  The United States observes that
Japan offered no evidence, nor did the record otherwise contain any evidence, of the failure orlikelihood of failure of United States procedures to ensure compliance with United States control
requirements prohibiting the exportation of apples other than mature, symptomless apple fruit.  The
United States further notes that the measure under challenge in this appeal includes no such controlrequirements.
 223
133. In evaluating the "authority" of the Panel to make findings and draw conclusions with respect
to all apple fruit, including immature apples, we turn  first to the Panel's terms of reference.  A panel's
terms of reference perform a fundamental function as they "establish the jurisdiction of the panel" 224
and "define the scope of the dispute". 225  In the present case, the terms of reference of the Panel
include the following :
In accordance with Article 7.1 of the DSU, the terms of reference of
the Panel are the following:
"To examine, in the light of the relevant provisions of the covered
agreements cited by the United States in document WT/DS245/2, thematter referred to the DSB by the United States 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."
 226
Document WT/DS245/2, referred to therein, is the request of the United States for the establishment
of a panel.  That request refers to "measures restricting the importation of US apples in connectionwith fire blight or the fire blight disease-causing organism,  Erwinia amylovora ".  The request then
lists the restrictions with which the United States is concerned.  We note, first, that those restrictionsare applicable to apple fruit produced in the United States for exportation to Japan;  their scope is notrestricted to mature, symptomless apples.  Secondly, the United States' request refers to "US apples",an expression that in our opinion is broader than mature, symptomless apples.  For these two reasons,
we are of the view that the terms of reference did not limit the Panel to making findings and drawing
conclusions with respect to mature, symptomless apples.
                                                     
222United States' other appellant's submission, para. 7.
223Ibid. , para. 12.
224Appellate Body Report, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, 167, at 186.
225Appellate Body Report, US – Carbon Steel , para. 126.
226WT/DS245/3, supra , footnote 3, para. 2.WT/DS245/AB/R
Page 48
134. We examine next the United States' argument that the Panel had no authority to make findings
and draw conclusions with respect to immature apples, because the United States had made no claimregarding immature apples.  We are not persuaded by this argument.  Before the Panel, theUnited States claimed that Japan maintains "measures restricting the importation of US apples in
connection with fire blight or the fire blight disease-causing organism,  Erwinia amylovora ", and that
"[t]hese measures appear to be inconsistent with the commitments and obligations of Japan underArticle[] 2.2 … of the  Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS Agreement)."
 227  In seeking to establish its claim, the United States put forward arguments and
allegations of fact only with respect to mature, symptomless apples.  For its part, Japan argued, amongother things, that despite controls established by exporting countries, apples other than mature,symptomless apples could be exported to Japan as a result of human or technical errors or illegalactions, and that such apples could serve as a pathway for fire blight.
 228  In other words, even though
a country seeks to export only mature, symptomless apples, there is a risk that apples other than
mature, symptomless apples will be exported to Japan, be infected, and transmit fire blight to
Japanese host plants.
135. The Panel determined that it was "legitimate to consider" 229 the arguments and allegations of
fact regarding apples other than mature, symptomless apples put forward by Japan in response  to theclaim pursued by the United States under Article 2.2.  We agree with the Panel.  A panel has theauthority to make findings and draw conclusions on arguments and allegations of fact that are madeby the respondent and  relevant   to a claim pursued by the complainant.  The Panel's findings and
conclusions with respect to apples other than matu re, symptomless apples were in response to the
arguments and allegations of fact that were "legitimately" raised by Japan.  Therefore, when the Panel
made findings and drew conclusions on apples other than mature, symptomless apple fruit, it dulyacted within the limits of its authority.
 230
                                                     
227WT/DS245/2, supra , footnote 2.
228Panel Report, para. 8.28.
229Ibid. , para. 8.121.
230In support of the argument that the Panel had no authority to make findings and draw conclusions
with respect to immature apples, the United States relies on the finding of the Appellate Body in  Japan –
Agricultural Products II   that a panel should not use its investigative authority "to rule in favour of a
complaining party which has not established a  prima facie   case of inconsistency based on specific legal claims
asserted by it." (Appellate Body Report, para. 129)  The United States' reliance on  Japan – Agricultural
Products II   is misplaced, for the facts and circumstances that led to the Appellate Body's finding are not the
same as those present here.  In  Japan – Agricultural Products II ,  the Appellate Body found fault with the
panel's reliance on expert evidence to rule in favour of  the complainant in the absence of a case established by
the complainant itself.  The circumstances in the present case differ from those present in  Japan – Agricultural
Products II .  Indeed, in the present case, the Panel made findings and drew conclusions on apples other than
mature, symptomless apples in response to Japan's case.WT/DS245/AB/R
Page 49
136. In making this finding, we do not suggest that a panel should rule on claims that are not
before it;  nor do we disagree with the United States that a party may abandon claims in the course ofdispute settlement proceedings.  In other words, we see nothing wrong with the United Statesrestricting the scope of its claim subsequent to the issuance of the terms of reference or at any other
stage of the proceedings.  Undoubtedly, a party has the prerogative to pursue whatever legal strategy
it wishes in conducting its case.  However, that strategy must not curtail the right of other parties topursue strategies of their own;  nor can the strategic choices of the parties impose a straightjacket on apanel.  A respondent is entitled to answer the comp lainant's case and is not confined to addressing the
specific facts and arguments put forward by the complainant, provided that the response is  relevant
to the issues in dispute.  Also, a panel is entitled to consider such facts and arguments, provided that itdoes not exceed its terms of reference.  The Panel in this case considered relevant Japan's argumentsrelating to apples other than mature, symptomless apples, and nothing in the terms of referenceprevented the Panel from addressing them.  In doing so, the Panel did not rule on a claim that was not
before it;  rather, it ruled on the very claim it was mandated to address.
137. The United States points to the absence of evidence on the failure or likelihood of failure of
United States' procedures to ensure compliance with United States control requirements prohibitingthe exportation of apples other than mature, symptomless apple fruit.
 231  According to the United
States, the Panel "undertook an analysis of U.S. procedures … based on a record devoid of evidenceon those procedures."
 232  The United States also appears to suggest that, in the absence of evidence on
United States' export control procedures, the Panel was not entitled to conclude that it was legitimateto consider the risks inherent in errors in sorting apples, or of illegal actions, which might lead to the
importation into Japan of contaminated apples.
 233
138. We are not persuaded by this argument.  We point out first that, contrary to what the United
States contends, the Panel did not "undert[ake] an analysis" of the United States' export controlprocedures.  The subject matter of the Panel's analysis was the risk of transmission of fire blightthrough apple fruit.  The Panel carried out this analysis in order to evaluate whether Japan's measureis "maintained without sufficient scientific evidence" within the meaning of Article 2.2 of theSPS Agreement .  Japan had argued, in connection with the question of risk of transmission of fire
blight through apple fruit, that it must protect itself against failures in control systems of exportingcountries that could lead to the introduction of contaminated apples.
 234  In making this argument,
                                                     
231United States' other appellant's submission, para. 12.
232Ibid.
233Ibid. , para. 17;  Panel Report, paras. 8.121 and 8.161.
234Panel Report, para. 8.85(d).WT/DS245/AB/R
Page 50
Japan referred to export control systems in general, not the specific export control system of the
United States.  To substantiate the argument, Japan referred to opinions of the experts and to a case ofexport control failure that occurred in November  2002, involving codling moth larvae found in apples
shipped from the state of Washington to the Separate Customs Territory of Taiwan, Penghu, Kinmen,
and Matsu.
 235  After reviewing Japan's argument, the Panel found that errors of handling or illegal
actions were risks that could, in principle, legitimately be considered by Japan 236 and, consequently,
the Panel included these risks in the scope of the analysis. 237
139. Secondly, we note that, in justifying the finding that errors of handling or illegal actions may
legitimately be considered, the Panel also referred to opinions of the experts. 238  Therefore, the United
States' allegation that the Panel made its finding in the absence of evidence is incorrect.
140. Furthermore, contrary to what the United States  suggests, we consider that, in any event, the
Panel did not need specific evidence of failure or likelihood of failure of United States export controlprocedures to conclude that errors of handling or illegal actions are risks that may legitimately be
considered.  The Panel's determination does not relate to the  specific   export control procedures of the
United States and does not stem from an assessment by the Panel of such specific procedures.Instead, the Panel's conclusion applies  in general   to errors of handling and illegal actions;  it is based
on views on the nature of these risks and, in particular, on the opinion of one of the experts that, inplant quarantine, inspections are rarely 100 percent efficient.
 239
141. Finally, we note that the Panel did not examine the risk of errors of handling or illegal actions
in general   for the purpose of assessing the reliability of the United States' export control procedures
or of determining whether apples other than mature, symptomless apple fruit were actually exported
from the United States to Japan.  The examination by the Panel of the risk of errors of handling or
illegal actions  in general   had a more limited objective—that of appreciating the relevance of Japan's
allegations on apples other than mature, symptomless apple fruit.
                                                     
235Panel Report, para. 4.191.
236Ibid. , para. 8.161.
237Ibid. , para. 8.121.
238Ibid. , paras. 8.160-8.161, citing  ibid., paras. 6.15 and 6.71, and paras. 263, 266, 303, 327, 398, and
431 of Annex 3 thereto.
239Ibid. , para. 8.160.  The Panel refers to a comment made by Dr. Ian Smith, one of the experts retained
by the Panel.  We note that, in response to questioning at the oral hearing, the United States acknowledged thatthe conclusion in paragraph 8.161 of the Panel Report that errors of handling or illegal actions are risks that maybe legitimately considered is a "general statement" whic h refers to the efficiency of export control procedures in
general, not to the specific export cont rol procedures of the United States.WT/DS245/AB/R
Page 51
142. In the light of these considerations, we find that, contrary to the United States' claim, the
Panel had the "authority" to make findings and draw conclusions with respect to all apple fruit fromthe United States, including immature apples.
VII. Article 2.2 of the  SPS Agreement  
143. We proceed next to Japan's claim that the Panel erred in finding that the measure is
maintained "without sufficient scientific eviden ce" within the meaning of Article 2.2 of the
SPS Agreement .
144. As explained in the previous section of this Report, the Panel decided that it would not limit
its analysis to the risk of transmission of fire blight inherent in mature, symptomless apple fruit.
 240
Thus, the Panel also considered the risk associated with other apples (that is, immature apples, ormature but damaged apples)
 241 that might enter Japanese territory as a result of human or technical
errors, or of illegal actions.
145. In the course of its analysis as to whether Japan's measure is maintained without sufficient
scientific evidence within the meaning of Article 2.2 of the  SPS Agreement ,  the Panel, on the basis
of the information before it, made the following findings of fact:
• Infection 242 of mature, symptomless apples has not been established.  Mature apples are
unlikely to be infected by fire blig ht if they do not show any symptoms 243;
• The possible presence of endophytic 244 bacteria in mature, symptomless apples is not
generally established.  Scientific evidence does not support the conclusion that mature,symptomless apples could harbour endophytic populations of bacteria
 245;
                                                     
240See supra , para. 131.
241Panel Report, paras. 8.122 and 8.174.
242For the Panel's definition of the term "infection", see supra , footnote 17.
243Panel Report, paras. 8.139 and 8.171.
244The Panel defined "endophytic" as follows: "With respect to E. amylovora , the term endophytic is
used when the bacterium occurs inside a plant or apple fruit in a non-pathogenic relationship." ( Ibid., para. 2.10
(original boldface))
245Ibid. , paras. 8.128 and 8.171.WT/DS245/AB/R
Page 52
• The presence of epiphytic 246 bacteria in mature, symptomless apples is considered to be
very rare 247;
• It is not contested that immature apple fruit can be infected or infested 248 by  Erwinia
amylovora 249;
• Infected apples are capable of harbouring populations of bacteria that could survive
through the various stages of commercial handling, storage, and transportation 250;
• Scientific evidence does not support the conclusion that infested or infected cargo crates
could operate as a vector for fire blight transmission;  rather, the evidence shows thatErwinia amylovora  is not likely to survive on crates
 251;  and
• Even if infected or infested apples were exported to Japan, and populations of bacteria
survived through the various stages of commercial handling, storage, and transportation,the introduction of fire blight would require the transmission of fire blight from importedapples to a host plant through an additional sequence of events that is deemed unlikely,
and that has not been experimentally established to date.
 252
146. On the basis of these findings of fact, the Panel concluded that scientific evidence suggests a
negligible risk of possible transmission of fire blight through apple fruit 253, and that scientific
evidence does not support the view that apples are likely to serve as a pathway for the entry,
establishment or spread of fire blight within Japan. 254
147. For the Panel, a measure is maintained "without sufficient scientific evidence" within the
meaning of Article 2.2 of the  SPS Agreement   if there is no "rational or objective relationship"
between the measure and the relevant scientific evidence. 255  Given the negligible risk identified on
                                                     
246The Panel defined "epiphytic" as follows:  "With respect to E. amylovora , the term epiphytic  is used
when the bacterium occurs on the outer surface of a plant or fruit in a non-pathogenic relationship." (PanelReport, para. 2.10 (original boldface))
247Ibid. , paras. 8.142 and 8.171.
248For the Panel's definition of the terms "infection" and "infestation", see  supra , footnote 17.
249Panel Report, para. 8.171.
250Ibid. , para. 8.157.
251Ibid. , para. 8.143.
252Ibid. , paras. 8.168 and 8.171.
253Ibid. , para. 8.169.
254Ibid. , para. 8.176.
255Ibid. , paras. 8.101-8.103 and 8.180, relying on Appellate Body Report, Japan – Agricultural
Products II , paras. 73-74, 82, and 84.WT/DS245/AB/R
Page 53
the basis of the scientific evidence and the nature of the elements composing the measure, the Panel
concluded that Japan's measure is "clearly disproportionate" to that risk. 256  The Panel reasoned that
such disproportion implies that a rational or object ive relationship does not exist between the measure
and the relevant scientific evidence and, therefore, the Panel concluded that Japan's measure is
maintained "without sufficient scientific evid ence" within the meaning of Article 2.2 of the
SPS Agreement . 257
148. Japan challenges the Panel's conclusion, arguing that a  prima facie   case that infected apples
would not act as a pathway for fire blight was not made by the United States.  Japan contends that, inthe absence of such a  prima facie   case, it was not open to the Panel to find a violation of Article 2.2.
In addition, Japan argues that the Panel erroneously found that the United States had made aprima facie   case in respect of mature, symptomless apples.  According to Japan, this error resulted
from the Panel's improper approach to Japan's risk evaluation, based on a misinterpretation ofArticle 2.2 of the  SPS Agreement .
 258
149. With respect to infected apples, Japan submits that it was for the United States to establish a
prima facie   case that there was no risk that infected apples could serve as a vector for the introduction
of fire blight within Japan.  The United States did not do so, because it presented arguments andevidence relating only to mature, symptomless apples
 259, acknowledging explicitly during the Interim
Review that "there is no factual claim or evidence submitted by the United States" relating to the riskassociated with infected apple fruit.
 260  Absent a  prima facie   case by the United States that there was
insufficient scientific evidence on the risk posed by infected apples, the Panel, according to Japan,should have ruled in favour of Japan and found that infected apples could act as a pathway for fire
blight.
 261  In addition, Japan submits that, by finding that "Japan did not submit sufficient scientific
evidence in support of its allegation that the last step of the pathway had been completed or was likelyto be completed"
 262, the Panel shifted the burden of proof to Japan;  and that such a shift constituted
an error of law as it was made prematurely, before the demonstration of a  prima  facie   case by the
United States. 263  Finally, Japan argues that the Panel was not entitled to use its investigative authority
                                                     
256Panel Report, para. 8.198.
257Ibid. , para. 8.199.
258Japan's appellant's submission, para. 71.
259Ibid. , para. 22.
260Ibid. , para. 23.
261Ibid. , paras. 26, quoting Panel Report, paras. 7.31 and 8.154;  and para. 27.
262Panel Report, para. 8.167.
263Japan's appellant's submission, para. 33.WT/DS245/AB/R
Page 54
to make findings of fact on the risk relating to infected apples because the United States declined to
establish a  prima facie   case with respect to this issue. 264
150. Regarding mature, symptomless apples, Japan advances a distinct argument, namely, that the
Panel should have interpreted Article 2.2 in such a way that a "certain degree of discretion" 265 be
accorded to the importing Member as to the manner it chooses, weighs, and evaluates scientific
evidence. 266  Japan argues that the Panel denied such discretion, as it "evaluated the scientific
evidence in accordance with the experts' view, desp ite the contrary view of an importing Member". 267
Japan contends that its own approach to the risk  relating to mature, symptomless apples—an approach
that reflects "the historical facts of trans-oceanic expansion of the bacteria" and the rapid growth ofinternational trade, and which is premised on "the fact that the pathways of … transmission of thebacteria are still unknown in spite of several efforts to trace them"
 268—is reasonable as well as
scientific because it is derived from "perspectives of prudence and precaution". 269  Consequently, the
Panel should have accorded deference to Japan's approach and should have assessed whether the
United States had established a  prima  facie   case in the light of it.  Japan argues that the United
States did not establish a  prima facie   case in respect of mature, symptomless apples that reflected
Japan's approach.  In particular, Japan submits that the United States failed to prove that both thehistory of trans-oceanic dissemination of fire blight and, the fact that the cause of trans-oceanicdissemination is unknown, are irrelevant.
 270
151. We will examine successively these two arguments of Japan:  first, Japan's case relating to
apples other than mature, symptomless apples, and secondly, that regarding mature, symptomlessapples.
A. Apples Other Than Mature, Symptomless Apples
152. It is well settled that, in principle, it rests upon the complaining party to "establish a
prima facie   c a s e  o f   inconsistency with a particular provision  of the  SPS Agreement
 ". 271  A s  t h e
Appellate Body said in  EC – Hormones :
                                                     
264Japan's appellant's submission, paras.  18, quoting Appellate Body Report, Japan – Agricultural
Products II , para. 129;  and para. 36.
265Japan's appellant's submission, para. 76.
266Ibid. , para. 75.
267Ibid. , para. 78.
268Ibid. , para. 73.
269Ibid. , para. 81, quoting Appellate Body Report, EC – Hormones , para. 124.
270Japan's appellant's submission, para. 87.
271Appellate Body Report, EC – Hormones , para. 98. (emphasis added)WT/DS245/AB/R
Page 55
The initial burden lies on the complaining party, which must
establish a  prima facie  case of inconsistency with a particular
provision of the  SPS Agreement  on the part of the defending party,
or more precisely, of its SPS measure or measures complained about.
When that  prima facie  case is made, the burden of proof moves to
the defending party, which must in turn counter or refute the claimed
inconsistency. 272
153. In this case, the United States seeks a finding that Japan's measure is inconsistent with
Article 2.2 of the  SPS Agreement .  Therefore, the initial burden lies with the United States to
establish a  prima facie   case that the measure is inconsistent with Article 2.2.  In particular, the
United States must establish a  prima facie   case that the measure is "maintained without sufficient
scientific evidence" within the meaning of Arti cle 2.2.  Following the Appellate Body's ruling in
EC – Hormones ,  if this  prima facie   case is made, it would be for Japan to counter or refute the claim
that the measure is "maintained without sufficient scientific evidence".
154. That said, the Appellate Body's statement in  EC – Hormones   does not imply that the
complaining party is responsible for providing proof  of all facts raised in relation to the issue of
determining whether a measure is consistent with a given provision of a covered agreement.  In otherwords, although the complaining party bears the burden of proving its case, the responding party mustprove the case it seeks to make in response.  In  US – Wool Shirts and Blouses ,  the Appellate Body
stated:
… we find it difficult, indeed, to see how any system of judicial
settlement could work if it incorporated the proposition that the mere
assertion of a claim might amount to proof.  It is, thus, hardly
surprising that various international tribunals, including theInternational Court of Justice, have generally and consistently
accepted and applied the rule that  the party who asserts a fact,
whether the claimant or the respondent, is responsible for providing
proof thereof . 
273 (footnote omitted, emphasis added)
155. In this case, the United States made a series of allegations of fact relating to mature,
symptomless apples as a possible pathway for fire blight, and sought to substantiate these allegations.Japan sought to counter the case made by the United States, arguing that:
                                                     
272Appellate Body Report, para. 98.
273Appellate Body Report, p. 14, DSR 1997:I, 323, at 335.WT/DS245/AB/R
Page 56
• Japan must protect itself against failures in the control systems of exporting countries
that might result in the introduction of apples other than mature, symptomless apples 274;
• it is possible that apples other than mature, symptomless apples (namely, immature
apples or mature but damaged apples) could be infected by fire blight;  and
• infected apple fruit has the capacity to serve as a pathway for fire blight. 275
156. Japan was thus responsible for providing proof of the allegations of fact it advanced in
relation to apples other than mature, symptomless apples being exported to Japan as a result of errorsof handling or illegal actions.  We therefore disagree with Japan's contention that the Panel erredbecause it "shifted the burden of proof to Japan in respect of a factual point that the complainantexplicitly declined to prove"
 276 or that "the shift of the burden of proof to Japan was made
prematurely before   the demonstration of a  prima facie   case by the United States." 277
157. It is important to distinguish, on the one hand, the principle that the complainant must
establish a  prima facie   case of inconsistency with a provision of a covered agreement 278 from, on the
other hand, the principle that the party that asserts a fact is responsible for providing proof thereof. 279
In fact, the two principles are distinct.  In the present case, the burden of demonstrating a  prima facie
case that Japan's measure is maintained without sufficient scientific evidence, rested on the UnitedStates.  Japan sought to counter the case put forw ard by the United States by putting arguments in
respect of apples other than mature, symptomless apples being exported to Japan as a result of errorsof handling or illegal actions.  It was thus for Japan to substantiate those allegations;  it was not for theUnited States to provide proof of the facts asserted by Japan.  Thus, we disagree with Japan's assertionthat "the shift of the burden of proof to Japan was made prematurely  before   the demonstration of a
prima facie   case by the United States."
 280  There was no "shift of the burden of proof " with respect to
allegations of fact relating to apples other than mature, symptomless apples, for Japan was solelyresponsible for providing proof of the facts it had asserted.  Moreover, it was only after the UnitedStates had established a  prima  facie   case that Japan's measure is maintained without sufficient
scientific evidence, that the Panel had to turn to Japan's attempts to counter that case.
                                                     
274Panel Report, para. 8.85(d).
275Ibid. , para. 8.154.
276Japan's appellant's submission, para. 31.
277Ibid. , para. 33. (original italics)
278Appellate Body Report, EC – Hormones , para. 98.
279Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335.
280Japan's appellant's submission, para. 33. (original italics)WT/DS245/AB/R
Page 57
158. Japan also contends that the Panel did not have the authority to make certain findings of
fact 281 and, in support of this contention, refers  to the Appellate Body's statement in  Japan –
Agricultural Products II :
Article 13 of the DSU and Article 11.2 of the  SPS Agreement
suggest that panels have a significant investigative authority.
However, this authority cannot be used by a panel to rule in favour of
a complaining party which has not established a  prima facie  case of
inconsistency based on specific legal claims asserted by it. 282
We disagree with Japan.  We note first that we are not persuaded that the findings of the Panel,
identified by Japan in relation to this argument, re late specifically to, or address apples other than
mature, symptomless apples, as Japan seems to assume.  Also, the Appellate Body's finding in  Japan
– Agricultural Products II  does not support Japan's argument that the Panel was barred from making
findings of fact in connection with apples othe r than mature, symptomless apples.  Those findings
were relevant to the claim pursued by the United States under Article 2.2 of the  SPS Agreement ,  and
were responsive to relevant allegations of fact advanced by Japan in the context of its rebuttal of theUnited States' claim.  The Panel acted within the limits of its investigative authority because it didnothing more than assess relevant allegations of fact asserted by Japan, in the light of the evidence
submitted by the parties and the opinions of the experts.
159. Japan also submits that, "in order to establish a  prima facie  case of insufficient scientific
evidence under Article 2.2 of the SPS Agreement, the complaining party must establish that there isnot sufficient scientific evidence for  any  of the perceived risks underlying the measure".
 283
According to Japan, the Panel should not have concluded that this  prima facie   case had been
established unless the United States had first addressed  all  the possible hypotheses—including those
for which the likelihood of occurrence is low or rests upon theoretical reasonings—and had shown foreach of them that the risk of transmission of fire blight is negligible.  We find no basis for theapproach advocated by Japan.  As the Appellate Body stated in  EC – Hormones , "a  prima facie  case
                                                     
281Japan refers to the following findings of the Panel:
[W]e are of the opinion that the prohibition of imported apples from any
orchard (whether or not it is free of fire blight) should fire blight be detectedwithin a 500-meter buffer zone surrounding such orchard is not supportedby sufficient scientific evidence;  [and]
[W]e are of the opinion that the requirement that export orchards be
inspected at least three times yearly (at blossom, fruitlet, and harvest stages)for the presence of fire blight is not supported by sufficient scientificevidence. (footnotes omitted)
(Japan's appellant's submission, para. 35, qu oting Panel Report, paras. 8.185 and 8.195)
282Appellate Body Report, para. 129;  Japan' s appellant's submission, paras. 18 and 44.
283Japan's appellee's submission, para. 9. (original italics)WT/DS245/AB/R
Page 58
is one which, in the absence of effective refutation by the defending party, requires a panel, as a matter
of law, to rule in favour of th e complaining party presenting the  prima facie  case." 284  In  US – Wool
Shirts and Blouses ,  the Appellate Body stated that the nature and scope of evidence required to
establish a  prima facie   case "will necessarily vary from measure to measure, provision to provision,
and case to case." 285  In the present case, the Panel appears to have concluded that in order to
demonstrate a  prima  facie  case that Japan's measure is maintained without sufficient scientific
evidence, it sufficed for the United States to address only the question of whether mature, symptomless
apples could serve as a pathway for fire blight.
160. The Panel's conclusion seems appropriate to us for the following reasons.  First, the claim
pursued by the United States was that Japan's m easure is maintained without sufficient scientific
evidence to the extent that it applies to mature, symptomless apples exported from the United States to
Japan.  What is required to demonstrate a  prima facie   case is necessarily influenced by the nature and
the scope of the claim pursued by the complainant.  A complainant should not be required to prove a
claim it does not seek to make.  Secondly, the Panel found that mature, symptomless apple fruit is the
commodity "normally exported" by the United States to Japan. 286  The Panel indicated that the risk that
apple fruit other than mature, symptomless apples may actually be imported into Japan would seem to
arise primarily as a result of human or technical error, or illegal actions 287, and noted that the experts
characterized errors of handling and illega l actions as "small" or "debatable" risks. 288  G i v e n  t h e
characterization of these risks, in our opinion it was legitimate for the Panel to consider that the United
States could demonstrate a  prima facie   case of inconsistency with Article 2.2 of the  SPS Agreement
through argument based solely on mature, symptoml ess apples.  Thirdly, the record contains no
evidence to suggest that apples other than mature, symptomless ones have ever been exported to Japan
from the United States as a result of errors of handling or illegal actions. 289  Thus, we find no error in
the Panel's approach that the United States could establish a  prima facie   case of inconsistency with
Article 2.2 of the  SPS Agreement   in relation to apples exported from the United States to Japan, even
though the United States confined its arguments to mature, symptomless apples.
                                                     
284Appellate Body Report, para. 104.
285Appellate Body Report, p. 14, DSR 1997:I, 323, at 335.
286Panel Report, para. 8.141.  The Panel also found that "the importation of immature, infected apples
may only occur as a result of a handling error or an illegal action". ( Ibid. , footnote 275 to para. 8.121)
287Ibid. , para. 8.174.
288Ibid. , para. 8.161.
289In response to questioning at the oral hearing, Japan indicated that the only evidence relating to the
export control procedures of the United States that it submitted to the Panel related to a case of codling mothlarvae found in apples shipped from the United States to the Separate Customs Territory of Taiwan, Penghu,Kinmen, and Matsu.  In our view, there was no reason for the Panel to infer from this that apples other thanmature, symptomless ones have ever been exported from the United States to Japan.WT/DS245/AB/R
Page 59
B. Mature, Symptomless Apples
161. We turn now to Japan's arguments in respect of mature, symptomless apples.  As we indicated
above, Japan contends that the Panel erred in interpreting Article 2.2 of the  SPS Agreement  because
the Panel failed to accord a "certain degree of discretion" 290 to the importing Member in the manner
in which it chooses, weighs, and evaluates scientific evidence. 291  Japan submitted that, had the Panel
accorded such discretion to Japan as the importing Member, the Panel would not have focused on theexperts' views.  Rather, the Panel would have evalua ted the scientific evidence in the light of Japan's
approach, which reflects "the historical facts of trans-oceanic expansion of the bacteria" and the rapidgrowth of international trade, and which is premised on "the fact that the pathways of … transmissionof the bacteria are still unknown in spite of several efforts to trace them."
 292  Japan thus argues that
the Panel erred in the application of Article 2.2 of the  SPS Agreement ,   a s  i t  s h o u l d  h a v e  a s s e s s e d
whether the United States had established a  prima facie   case regarding the sufficiency of scientific
evidence, not from the perspective of the experts' view s, but, rather, in the light of Japan's approach to
scientific evidence.  According to Japan, had the Panel made such an assessment, it would have beenbound to conclude that the United States had not established a  prima facie   case that Japan's measure
is maintained without sufficient scientific evidence.
162. We disagree with Japan.  As the Panel correctly noted, the Appellate Body addressed, in
Japan – Agricultural Products II ,  the meaning of the term "sufficient", in the context of the
expression "sufficient scientific evidence" as found in Article 2.2.
 293  The Panel stated that the term
"sufficient" implies a "rational or objective relationship" 294 and referred to the Appellate Body's
statement there that:
Whether there is a rational relationship between an SPS measure and
the scientific evidence is to be determined on a case-by-case basis
and will depend upon the particular circumstances of the case,including the characteristics of the measure at issue and the quality
and quantity of the scientific evidence.
 295
The Panel did not err in relying on this interpretation of Article 2.2 and in conducting its assessment
of the scientific evidence on this basis.
                                                     
290Japan's appellant's submission, para. 76.
291Ibid. , paras. 75-76.
292Ibid. , para. 73.
293Panel Report, paras. 8.101-8.103 and 8.180.
294Ibid. , paras. 8.103 and 8.180.
295Ibid. , para. 8.103, quoting Appellate Body Report, Japan – Agricultural Products II , para. 84.WT/DS245/AB/R
Page 60
163. As we see it, the Panel examined the evidence adduced by the parties and considered the
opinions of the experts.  It concluded as a matter of fact that it is not likely that apple fruit wouldserve as a pathway for the entry, establishment or spread of fire blight in Japan.
 296  The Panel then
contrasted the extent of the risk and the nature of the elements composing the measure, and concluded
that the measure was "clearly disproportionate to the risk identified on the basis of the scientific
evidence available." 297  For the Panel, such "clear disproportion" implies that a "rational or objective
relationship" does not exist between the measure and the relevant scientific evidence, and, therefore,the Panel concluded that the measure is maintained "without sufficient scientif ic evidence" within the
meaning of Article 2.2 of the  SPS Agreement .
 298  We note that the "clear disproportion" to which the
Panel refers, relates to the application in this case of the requirement of a "rational or objectiverelationship between an SPS measure and the scientific evidence".
164. We emphasize, following the Appe llate Body's statement in  Japan – Agricultural
Products II ,  that whether a given approach or methodology is appropriate in order to assess whether a
measure is maintained "without sufficient scientif ic evidence", within the meaning of Article 2.2,
depends on the "particular circumstances of the case", and must be "determined on a case-by-casebasis".
 299  Thus, the approach followed by the Panel in this case—disassembling the sequence of
events to identify the risk and comparing it with the measure—does not exhaust the range ofmethodologies available to determine whether a meas ure is maintained "without sufficient scientific
evidence" within the meaning of Article 2.2.  Approaches different from that followed by the Panel inthis case could also prove appropriate to evaluate whether a measure is maintained without sufficientscientific evidence within the meaning of Article 2.2.  Whether or not a particular approach is
appropriate will depend on the "particular circumstances of the case".
 300  The methodology adopted
by the Panel was appropriate to the particular circumstances of the case before it and, therefore, wesee no error in the Panel's reliance on it.
165. Regarding Japan's contention that the Panel should have made its assessment under
Article 2.2 in the light of Japan's approach to risk and scientific evidence, we recall that, inEC – Hormones ,  the Appellate Body addressed the question of the standard of review that a panel
should apply in the assessment of scientific evidence submitted in proceedings under theSPS Agreement .  It stated that Article 11 of the DSU sets out the applicable standard, requiring panels
                                                     
296Panel Report, para. 8.176.
297Ibid. , para. 8.198.
298Ibid. , para. 8.199.
299Appellate Body Report, para. 84.
300Ibid.WT/DS245/AB/R
Page 61
to make an "objective assessment of the facts".  It added that, as regards fact-finding by panels and the
appreciation of scientific evidence, total deference to the findings of the national authorities would notensure an objective assessment as required by Article 11 of the DSU.
 301  In our view, Japan's
submission that the Panel was obliged to favour Japan's approach to risk and scientific evidence over
the views of the experts conflicts with the Appellate Body's articulation of the standard of "objective
assessment of the facts".
166. In order to assess whether the United States had established a  prima  facie   case, the
Panel was entitled to take into account the views of the experts.  Indeed, in  India – Quantitative
Restrictions ,  the Appellate Body indicated that it may be useful for a panel to consider the views of
the experts it consults in order to determine whether a  prima facie   case has been made. 302  Moreover,
on several occasions, including disputes involving the evaluation of scientific evidence, the AppellateBody has stated that panels enjoy discretion as the trier of facts
 303;  they enjoy "a margin of discretion
in assessing the value of the evidence, and th e weight to be ascribed to that evidence." 304  Requiring
panels, in their assessment of the evidence before them, to give precedence to the importing Member's
evaluation of scientific evidence and risk is not compatible with this well-established principle.
167. For these reasons, we reject the contention that, under Article 2.2, a panel is obliged to give
precedence to the importing Member's approach to scientific evidence and risk when analyzing andassessing scientific evidence.  Consequently, we disagree with Japan that the Panel erred in assessingwhether the United States had established a  prima facie   case when it did so from a perspective
different from that inherent in Japan's approach to scientific evidence and risk.  Thus, we are notpersuaded that we should revisit the Panel's conclusion that the United States established a
prima facie   case that Japan's measure is maintained without sufficient scientific evidence.
168. In the light of these considerations, we uphold the Panel's findings, in paragraphs 8.199
and  9.1(a) of the Panel Report, that Japan's phytosanitary measure at issue is maintained "withoutsufficient scientific evidence" within the meaning of Article 2.2 of the  SPS Agreement .
                                                     
301Appellate Body Report, EC – Hormones , para. 117.
302Appellate Body Report, para. 142.
303Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 170, 177, and 181;  Appellate
Body Report, EC – Sardines , para. 299;  Appellate Body Report, Korea – Alcoholic Beverages , paras. 161-162;
Appellate Body Report, EC – Hormones , para. 132;  and  Appellate Body Report, US – Wheat Gluten , para. 151.
See also, Appellate Body Report, Australia – Salmon , paras. 262-267;  Appellate Body Report, Japan –
Agricultural Products II , paras. 140-142;  and Appellate Body Report, Korea – Dairy , paras. 137-138.
304Appellate Body Report, EC – Asbestos , para. 161.WT/DS245/AB/R
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VIII.  Article 5.7 of the  SPS Agreement
169. We turn to the issue whether the Panel erred in finding that Japan's phytosanitary measure
was not imposed in respect of a situation where "relev ant scientific evidence is insufficient" within the
meaning of Article 5.7 of the  SPS Agreement .
170. Article 2.2 of the  SPS Agreement   stipulates that Members shall not maintain sanitary or
phytosanitary measures without sufficient scientific evidence "except as provided for in paragraph 7of Article 5".  Before the Panel, Japan contested that its phytosanitary measure is "maintained withoutsufficient scientific evidence" within the meaning of Article 2.2.  Japan claimed, in the alternative,that its measure is a provisional measure consistent with Article 5.7.
171. Article 5.7 of the  SPS Agreement   reads as follows:
Assessment of Risk and Determination of the Appropriate Level of
Sanitary or Phytosanitary Protection
…
In cases where relevant scientific evidence is insufficient, a Member
may provisionally adopt sanitary or phytosanitary measures on the
basis of available pertinent information, including that from the
relevant international organizations as well as from sanitary or
phytosanitary measures applied by other Members.  In such
circumstances, Members shall seek to obtain the additional
information necessary for a more objective assessment of risk and
review the sanitary or phytosanitary measure accordingly within areasonable period of time.
172. The Panel found that Japan's measure is not a provisional measure justified under Article 5.7
of the  SPS Agreement   because the measure was not imposed in respect of a situation where "relevant
scientific evidence is insufficient".
 305
173. The Panel identified the "phytosanitary question at issue" as the risk of transmission of fire
blight through apple fruit. 306  It observed that "scientific studies as well as practical experience have
accumulated for the past 200 years" 307 on this question and that, in the course of its analysis under
Article 2.2, it had come across an "important amount of relevant evidence". 308  The Panel observed
that a large quantity of high quality scientific evidence on the risk of transmission of fire blightthrough apple fruit had been produced over the years, and noted that the experts had expressed strong
                                                     
305Panel Report, paras. 8.221-8.222.
306Ibid. , para. 8.218.
307Ibid. , para. 8.219.
308Ibid. , para. 8.216.WT/DS245/AB/R
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and increasing confidence in this evidence.  Statin g that Article 5.7 was "designed to be invoked in
situations where little, or no, reliable evidence was available on the subject matter at issue" 309, the
Panel concluded that the measure was not imposed in respect of a situation where relevant scientificevidence is insufficient.
 310  The Panel added that, even if the term "relevant scientific evidence" in
Article 5.7 referred to a  specific aspect   of a phytosanitary problem, as Japan claimed, its conclusion
would remain the same.  The Panel justified its vi ew on the basis of the experts' indication that, not
only is there a large volume of general evidence, but there is also a large volume of relevant scientific
evidence on the specific scientific questions raised by Japan. 311
174. Japan challenges the Panel's finding that the measure is not imposed in respect of a situation
where "relevant scientific evidence is insufficient" within the meaning of Article 5.7 of theSPS Agreement .
 312  Moreover, Japan submits that its measure meets all the other requirements of
Article 5.7. 313  Accordingly, Japan requests us to reve rse the Panel's finding and to complete the
analysis regarding the consistency of its measure with the other requirements set out in Article 5.7. 314
A. The Insufficiency of Relevant Scientific Evidence
175. As noted above, Japan's claim under Article 5.7 was argued before the Panel in the
alternative. 315  Japan relied on Article 5.7 only in the event that the Panel rejected Japan's view that
"sufficient scientific evidence" exists to maintain the measure within the meaning of Article 2.2.  It is
in this particular context that the Panel assigned the burden of proof to Japan to make a  prima facie
case in support of its position under Article 5.7. 316
176. In  Japan – Agricultural Products II ,  the Appellate Body stated that Article 5.7 sets out four
requirements that must be satisfied in order to adopt and maintain a provisional phytosanitarymeasure.
 317  These requirements are:
                                                     
309Panel Report, para. 8.219.
310Ibid.
311Ibid. , para. 8.220.
312We note that Japan does not challenge the Panel's conclusion that in order to assess whether the
measure was imposed in respect of a situation where "relevant scientific evidence is insufficient", the Panel hadto consider "not only evidence supporting Japan's position, but also evidence supporting other views." ( Ibid. ,
para.8.216)
313Japan's appellant's submission, paras. 117-120.
314Ibid. , paras. 120-121.
315Panel Report, para. 4.202.
316The Panel's assignment of the burden of proof to Japan to make a  prima facie   case of consistency
with Article 5.7 is not challenged on appeal.
317Appellate Body Report, para. 89.WT/DS245/AB/R
Page 64
(i) the measure is imposed in respect of a situation where "relevant scientific evidence is
insufficient";
(ii) the measure is adopted "on the basis of available pertinent information";(iii) the Member which adopted the measure "seek[s] to obtain the additional information
necessary for a more objective assessment of risk";  and
(iv) the Member which adopted the measure "review[s] the  …  measure accordingly
within a reasonable period of time".
 318
These four requirements are "clearly cumulative in nature" 319;  as the Appellate Body said in  Japan –
Agricultural Products II ,  "[w]henever  one  of these four requirements is not met, the measure at
issue is inconsistent with Article 5.7." 320
177. The Panel's findings address exclusively the first requirement, which the Panel found Japan
had not met. 321  The requirements being cumulative, the Panel found it unnecessary to address the
other requirements to find an inconsistency with Article 5.7.
178. Japan's appeal also focuses on the first requirement of Article 5.7.  Japan contends that the
assessment as to whether relevant scientific evidence is insufficient should not be restricted toevidence "in general" on the phytosanitary question at issue, but should also cover a "particularsituation" in relation to a "particular measure" or a "particular risk".
 322  Hence, Japan submits that the
phrase "[w]here relevant scientific evidence is insu fficient", in Article 5.7, "should be interpreted to
relate to a particular situation in respect of a particular  measure   to which Article 2.2 applies (or a
particular risk), but not to a particular  subject  matter   in general, which Article 2.2 does not
address." 323  According to Japan, the Panel "erred by inte rpreting the applicability of [Article 5.7] too
narrowly" 324 and too "rigid[ly]". 325
                                                     
318Appellate Body Report, Japan – Agricultural Products II , para. 89.  The third and fourth
requirements relate to the  maintenance   of a provisional phytosanitary measure and highlight the  provisional
nature of measures adopted pursuant to Article 5.7.
319Appellate Body Report, Japan – Agricultural Products II , para. 89.
320Ibid.  (original italics)
321Panel Report, para. 8.222.
322Japan's appellant's submission, para. 102.
323Ibid. (original italics)
324Ibid. , para. 96.
325Ibid. , paras. 100-101.WT/DS245/AB/R
Page 65
179. It seems to us that Japan's reliance on the opposition between evidence "in general" and
evidence relating to specific aspects of a particular subject matter is misplaced.  The first requirementof Article 5.7 is that there must be insufficient scientific evidence.  When a panel reviews a measureclaimed by a Member to be provisional, that panel must assess whether "relevant scientific evidence is
insufficient".  This evaluation must be carried out, not in the abstract, but in the light of a particular
inquiry.  The notions of "relevance" and "insufficiency" in the introductory phrase of Article 5.7imply a relationship between the scientific eviden ce and something else.  Reading this introductory
phrase in the broader context of Article 5 of the  SPS Agreement ,  which is entitled "Assessment of
Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection", isinstructive in ascertaining the nature of the relationship to be established.  Article 5.1 sets out a keydiscipline under Article 5, namely that "Members shall ensure that their sanitary or phytosanitarymeasures are based on an assessment … of the risks to human, animal or plant life or health".
 326  This
discipline informs the other provisions of Article 5, including Article 5.7.  We note, as well, that the
second sentence of Article 5.7 refers to a "more objective assessment of risks".  These contextual
elements militate in favour of a link or relationship between the first requirement under Article 5.7and the obligation to perform a risk assessment under Article 5.1:  "relevant scientific evidence" willbe "insufficient" within the meaning of Article 5.7 if the body of available scientific evidence does notallow, in quantitative or qualitative terms, the performance of an adequate assessment of risks as
required under Article 5.1 and as defined in Annex A to the  SPS Agreement .  Thus, the question is
not whether there is sufficient evidence of a general nature or whether there is sufficient evidencerelated to a specific aspect of a phytosanitary problem, or a specific risk.  The question is whether the
relevant evidence, be it "general" or "specific", in  the Panel's parlance, is sufficient to permit the
evaluation of the likelihood of entry, establishment or spread of, in this case, fire blight in Japan.
180. The Panel found that, with regard to the risk of transmission of fire blight through apples
exported from the United States—"normally"
 327, mature, symptomless apples—"not only a large
quantity but a high quality of scientific evidence has been produced over the years that describes therisk of transmission of fire blight through apple fruit as negligible", and that "this is evidence in whichthe experts have expressed strong and increasing confidence."
 328
                                                     
326The risk assessment referred to in Article 5.1 is defined in Annex A to the  SPS Agreement .
327Panel Report, paras. 8.87 and 8.141.
328Ibid. , para. 8.219.WT/DS245/AB/R
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181. Japan also raised specific questions related to endophytic bacteria in mature apple fruit and
regarding the completion of contamination pathways. 329  In relation to these specific questions, the
Panel made the finding of fact, based on indications of the experts retained by the Panel, that there is alarge volume of relevant scientific evidence regarding these questions as well.
 330  Moreover, Japan
did not persuade the Panel that this scientific evidence is not conclusive or has not produced reliable
results. 331
182. These findings of fact by the Panel suggest that the body of available scientific evidence
permitted, in quantitative and qualitative terms, the performance of an assessment of risks, as requiredunder Article 5.1 and as defined in Annex A to the  SPS Agreement ,  with respect to the risk of
transmission of fire blight through apple fruit exported from the United States to Japan.  In particular,according to these findings of fact by the Panel, the body of available scientific evidence would allow"[t]he evaluation of the likelihood of entry, establishment or spread"
 332 of fire blight in Japan through
apples exported from the United States.  Accordingly, in the light of the findings of fact made by the
Panel, we conclude that, with respect to the risk of transmission of fire blight through apple fruit
exported from the United States to Japan ("normally", mature, symptomless apples), the "relevantscientific evidence" is not "insufficient" within the meaning of Article 5.7.
B. Japan's Argument on "Scientific Uncertainty"
183. Japan challenges the Panel's statement that Article 5.7 is intended to address only "situations
where little, or no, reliable evidence was available on the subject matter at issue"
 333 because this does
not provide for situations of "unresolved uncerta inty".  Japan draws a distinction between "new
uncertainty" and "unresolved uncertainty" 334, arguing that both fall within Article 5.7.  According to
Japan, "new uncertainty" arises when a new risk is identified;  Japan argues that the Panel'scharacterization that "little, or no, reliable evidence was available on the subject matter at issue" isrelevant to a situation of "new uncertainty".
 335  We understand that Japan defines "unresolved
uncertainty" as uncertainty that the scientific evid ence is not able to resolve, despite accumulated
scientific evidence. 336  According to Japan, the risk of transmission of fire blight through apple fruit
                                                     
329Panel Report, para. 8.220.
330Ibid. ,
331Ibid. , para. 7.9.  See also the Panel's findings of fact in paragraphs 8.128, 8.168, and  8.171 of the
Panel Report, made in the context of the Panel's analysis under Article 2.2 of the  SPS Agreement .
332Annex A to the  SPS Agreement , para. 4.
333Panel Report, para. 8.219.
334Japan's appellant's submission, para. 101.
335Ibid. , footnote 76 to para. 98.
336Ibid. , para. 98.WT/DS245/AB/R
Page 67
relates essentially to a situation of "unresolved uncertainty". 337  Thus, Japan maintains that, despite
considerable scientific evidence regarding fire blight, there is still uncertainty about certain aspects oftransmission of fire blight.  Japan contends that the reasoning of the Panel is tantamount to restrictingthe applicability of Article 5.7 to situations of "new uncertainty" and to excluding situations of
"unresolved uncertainty";  and that, by doing so, the Panel erred in law.
 338
184. We disagree with Japan.  The application of Article 5.7 is triggered not by the existence of
scientific uncertainty, but rather by the insufficiency of scientific evidence.  The text of Article 5.7 isclear:  it refers to "cases where relevant scient ific evidence is insufficient", not to "scientific
uncertainty".  The two concepts are not interchangeable.  Therefore, we are unable to endorse Japan'sapproach of interpreting Article 5.7 through the prism of "scientific uncertainty".
185. We also find no basis for Japan's argument that the Panel's interpretation of Article 5.7 is too
narrow for the reason that it excludes cases where the quantity of evidence on a phytosanitaryquestion is "more than little"
 339, but the available scientific evidence has not resolved the question.
The Panel's statement that Article 5.7 is intended to address "situations where little, or no, reliable
evidence was available on the subject matter at issue", refers to the availability of  reliable   evidence.
We do not read the Panel's interpretation as excluding cases where the available evidence is more thanminimal in quantity, but has not led to reliable or conclusive results.  Indeed, the Panel explicitlyrecognized that such cases fall within the scope of Article 5.7 when it observed, in the Interim Reviewsection of its Report, that under its approach, Article 5.7 would be applicable to a situation where a lotof scientific research has been carried out on a particular issue without yielding reliable evidence.
 340
C. The Panel's Reliance on a "History of 200 Years of Studies and Practical Experience"
186. Japan contends that the conclusion of the Panel regarding Article 5.7 is based on its
assessment that, as regards fire blight, "scientific studies as well as practical experience haveaccumulated for the past 200 years".
 341  Japan submits that the Panel was not authorized to rule on the
basis of a " 'history' of 200 year[s] of studies and practical experience" 342 because "the United States
did not raise any objection to application of Article 5.7 on the basis of [a] 'history' of 200 year[s] ofstudies and practical experience."
 343  In other words, according to Japan, the Panel was not entitled to
                                                     
337Japan's appellant's submission, paras. 105-110.
338Ibid. , para. 110.
339Panel Report, para. 7.8.
340Ibid. , para. 7.9.
341Ibid. , para. 8.219;  Japan's appellant 's submission, paras. 93 and 97.
342Japan's appellant's submission, para. 97.
343Ibid.WT/DS245/AB/R
Page 68
draw a conclusion regarding Article 5.7 on the basis of such "history" unless the United States had
raised an objection based on "history", something that the United States had not done. 344
187. In the course of its reasoning, the Panel mentioned that, as regards the risk of transmission of
fire blight through apple fruit, "scientific studies as well as practical experience have accumulated for
the past 200 years". 345  This statement was relevant to the debate under Article 5.7 and was based on
the evidence before the Panel. 346  Accordingly, it was appropriate for the Panel to make such a
statement irrespective of whether the United States had explicitly advanced an argument based on"history".
188. In the light of these considerations, we uphold the findings of the Panel, in paragraphs 8.222
and 9.1(b) of the Panel Report, that Japan's phytosanitary measure at issue was not imposed in respectof a situation "where relevant scientific evidence is insufficient", and, therefore, that it is not aprovisional measure justified under Article 5.7 of the  SPS Agreement .  We note that Japan requested
us, in the event we were to reverse the Panel's finding on Article 5.7, to complete the analysis in
respect of the other requirements set out in Article 5.7 of the  SPS Agreement .  Given our conclusion,
there is no need to do so.
IX. Article 5.1 of the  SPS Agreement
189. We turn now to Japan's allegations of error with respect to Article 5.1 of the  SPS Agreement .
The Panel began its evaluation of the United States' claim under Article 5.1 by noting that both partieseffectively identified a document referred to as the "1999 PRA" as the risk assessment to be analyzedin this evaluation.
 347  Japan, however, objected to the Panel's consideration of evidence arising
subsequent to the 1999 PRA when assessing the 1999 PRA's conformity with the requirements of
Article 5.1.  Despite this objection, the Panel concluded that it would "consider principally the1999 PRA as the relevant risk assessment in this case, but we do not exclude that other elements,including subsequent information, could also be of relevance."
 348
                                                     
344Japan's appellant's submission, para. 97.
345Panel Report, para. 8.219.
346We note that Dr. Chris Hale, one of the experts consulted by the Panel, referred to a historical
perspective when he stated that "fire blight had taken 220 years to spread from New York State, USA in 1780,to its latest geographic locations". ( Ibid., para. 6.28)
347Ibid. , para. 8.247.  In response to questioning at the oral hearing, both participants reaffirmed the
focus of the Panel's Article 5.1 analysis to be the 1999 PRA.
348Panel Report, para. 8.248.WT/DS245/AB/R
Page 69
190. On the substance of the claim, the Panel noted first that the United States did not contest the
fact that the 1999 PRA properly identified fire blight as the disease of concern. 349  The focus of the
United States' claim was that (i) the risk assessment did not sufficiently evaluate the likelihood ofentry, establishment or spread of fire blight, and (ii) this evaluation was not performed "according to
the SPS measures which might be applied".
 350
191. As to the first element of the claim, the Panel said that a risk assessment must be sufficiently
specific to the risk at issue.  In this regard, the Panel observed that the 1999 PRA studied severalpossible hosts of fire blight, including apple fruit.  Recognizing that the risk of transmission of fireblight could vary significantly from plant to plant, the Panel found that the risk assessment was not"sufficiently specific" because "the conclusion of the [1999] PRA [did] not purport to relate
exclusively to the introduction of the disease through apple fruit, but rather more generally,apparently, through any susceptible host/vector."
 351
192. The Panel similarly found the discussion of possible pathways to have "intertwined" the risk
of entry through apple fruit with that of other possible vectors, including vectors considered more
likely to be potential sources of contamination than apple fruit. 352  The Panel also determined that
those parts of the 1999 PRA that specifically addressed apple fruit, although noting the  possibility  of
entry, establishment or spread of fire blight through this vector, did not properly evaluate theprobability  of the occurrence of such events.  Finally, the Panel recalled the testimony of certain
experts, identifying several steps in the evaluation of the probability of entry that had been"overlooked" by the 1999 PRA.
 353  In the light of these shortcomings, the Panel concluded that
Japan's risk assessment did not properly evaluate the likelihood of entry, establishment or spread of
fire blight through apple fruit.
193. With respect to the second element of the United States' claim, the Panel observed that a risk
assessment, according to Annex A to the  SPS Agreement ,  requires an evaluation "according to the
sanitary or phytosanitary measures which might be applied".  From this language, the Paneldetermined that a risk assessment must not only consider the particular measure already in place, butalso other measures that " might " be applied.
 354  Because the 1999 PRA did not consider other risk-
mitigating measures, the Panel found the risk assessment inadequate for purposes of Article 5.1.
                                                     
349Panel Report, para. 8.252.
350Ibid. , para. 8.253.
351Ibid. , para. 8.271.
352Ibid. , para. 8.278.
353Ibid. , para. 8.279.
354Ibid. , para. 8.283. (original italics)WT/DS245/AB/R
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194. Reviewing Japan's evaluation of the measure that was already in place, the Panel
acknowledged that the 1999 PRA could be considered  to have provided "some" evaluation of the
likelihood of entry of the disease and possible miti gation through the existing measure.  The Panel
noted, however, that, in  Australia – Salmon , the Appellate Body found that "some" evaluation was
insufficient for purposes of Article 5.1 and that a comparison between Japan's evaluation and that of
the importing Member in that case reveals the 1999 PRA to be "considerably less substantial". 355  The
Panel also noted that the 1999 PRA assumes that the individual components of Japan's measure would
be applied cumulatively, without consideration as to their individual effectiveness.  The Panel found
that the required consideration of alternative measures included an obligation to evaluate whether theindependent elements needed to be applied cumulatively and to provide an explanation therefor.
 356
As a result, the Panel concluded that, in the 1999 PRA, Japan did not sufficiently conduct itsevaluation "according to the sanitary or phytosanitary measures which might be applied".
195. Japan challenges three specific aspects of the Panel's analysis of the 1999 PRA under
Article 5.1.  First, Japan contests the Panel's finding that the 1999 PRA is inconsistent with the
requirements of Article 5.1 because it did not focus its analysis on the risk of fire blight enteringthrough  apple fruit ,  in particular.  Japan contends that the Panel misinterpreted Article 5.1 and
misunderstood the Appellate Body's decision in  EC – Hormones  with respect to the requirement of
"specificity" of a risk assessment.
 357  Secondly, Japan argues that Article 5.1, contrary to the Panel's
interpretation, does not require a consideration of "alternative measures other than [the] existingmeasures."
 358  Finally, Japan claims that its risk assessment should be assessed in the light of
evidence available at the time of the assessment, not against evidence that has become available
subsequently. 359
196. We begin our analysis with the text of the relevant provision at issue, Article 5.1 of the
SPS Agreement :
Members shall ensure that their sanitary or phytosanitary measures
are based on an assessment, as appropriate to the circumstances, of
the risks to human, animal or plant life or health, taking into accountrisk assessment techniques developed by the relevant international
organizations.
                                                     
355Panel Report, para. 8.287.
356Ibid. , para. 8.288.
357Japan's appellant's submission, paras. 127-129.
358Ibid. , para. 133, quoting Panel Report, para. 8.285.
359Japan's appellant's submission, paras. 135-138.WT/DS245/AB/R
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The first clause of paragraph 4 of Annex A to the  SPS Agreement  defines the "risk assessment" for a
measure designed to protect plant life or health from risks arising from the entry, establishment orspread of diseases as follows:
Risk assessment  - The evaluation of the likelihood of entry,
establishment or spread of a pest or disease within the territory of an
importing Member according to the sanitary or phytosanitary
measures which might be applied, and of the associated potentialbiological and economic consequences … .
 360
Based on this definition, the Appellate Body determined in  Australia – Salmon  that:
… a risk assessment within the meaning of Article 5.1 must:
(1) identify   the diseases whose entry, establishment or spread a
Member wants to prevent within its territory, as well as the
potential biological and economic consequences associated
with the entry, establishment or spread of these diseases;
(2) evaluate the likelihood   of entry, establishment or spread of
these diseases, as well as the associated potential biological
and economic consequences;  and
(3) evaluate the likelihood of entry, establishment or spread of
these diseases  according to the SPS measures which might
be applied . 361 (original italics)
197. As the Panel noted, the United States does not claim that Japan's risk assessment failed to
meet the first of these conditions. 362  The Panel therefore limited its analysis of Japan's risk
assessment to the second and third conditions.  The Panel found that the 1999 PRA did not constitutea "risk assessment", as that term is defined in the  SPS Agreement ,  because it did not satisfy either of
those conditions.  Japan challenges aspects of the Panel's analysis with respect to both of these
conditions.  We consider each of these conditions before turning to Japan's argument regarding theevidence that may be relied upon by a panel when evaluating a risk assessment.
A. Evaluating the Likelihood of Entry, Establishment or Spread of Fire Blight
198. Japan challenges first the Panel's finding that the 1999 PRA was not sufficiently specific to
constitute a risk assessment under the  SPS Agreement   because it did not evaluate the risk in relation
                                                     
360The second clause in paragraph 4 of Annex A to the  SPS Agreement  addresses risk assessments
evaluating the "potential for adverse effects on human or animal health arising from the presence of additives,contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs."  As such, the second clausedoes not define the type of risk assessment relevant to this dispute involving the possibility of transmission offire blight to plants in Japan. (See Appellate Body Report, Australia – Salmon , footnote 67 to para. 120)
361Ibid. , para. 121.
362Panel Report, para. 8.252.WT/DS245/AB/R
Page 72
to  apple fruit ,  in particular.  In  EC – Hormones ,  in the context of evaluating whether a measure was
"based on" a risk assessment, the Appellate Body examined the specificity of the risk assessmentrelied upon by the importing Member.  In that case, the importing Member had referred to certainscientific studies and articles as the risk assessment underlying its measures.  In its Report, the
Appellate Body described the panel's finding that these materials:
… relate[d] to the carcinogenic potential of entire categories  of
hormones, or of the hormones at issue  in general .  …  [They did] not
evaluate[] the carcinogenic potential of those hormones when used
specifically  for growth promotion purposes .  Moreover, they [did]
not evaluate the specific potential for carcinogenic effects arising
from the presence  in "food" , more specifically, "meat or meat
products" of residues of the hormones in dispute.
 363 (original italics)
199. The panel in  EC – Hormones  concluded, as a result, that the studies cited by the importing
Member were insufficient to support the measures at issue.  The Appellate Body upheld thesefindings, stating that, although the studies cited by the importing Member:
… [did] indeed show the existence of a general risk of cancer … they
[did] not focus on and [did] not address the particular kind of risk
[t]here at stake - the carcinogenic or genotoxic potential of theresidues of those hormones found in meat derived from cattle to
which the hormones had been administered for growth promotion
purposes -- as is required by paragraph 4 of Annex A of the
SPS Agreement .
 364
The Appellate Body therefore concluded that the risk assessment was not "sufficiently specific to the
case at hand." 365
200. In this case, the Panel, relying on the Appellate Body's finding in  EC  –  Hormones ,
concluded that the 1999 PRA was not sufficiently specific to constitute a "risk assessment" inaccordance with the  SPS Agreement .
 366  The Panel based this conclusion on its finding that, although
the 1999 PRA makes determinations as to the entry, establishment and spread of fire blight through acollection of various hosts (including apple fruit), it failed to evaluate the entry, establishment or
spread of fire blight through apple fruit as a separate and distinct vector.
 367  As the Panel stated in
response to Japan's comments during the Interim Review, "Japan evaluated the risks associated with
                                                     
363Appellate Body Report, EC – Hormones , para. 199.
364Ibid. , para. 200.
365Ibid.
366Panel Report, paras. 8.267 and 8.271.
367Ibid. , paras. 8.268-8.271.WT/DS245/AB/R
Page 73
all possible hosts taken together, not sufficiently considering the risks specifically associated with the
commodity at issue:  US apple fruit exported to Japan." 368
201. Japan does not contest the Panel's characterization of the risk assessment as one that did not
analyze the risks of apple fruit separately from risks posed by other hosts. 369  Rather, Japan claims
that the Panel's reasoning relates to a "matter of methodology", which lies within the discretion of
the importing Member. 370  Japan contends that the requirement of "specificity" explained in
EC – Hormones  refers to the specificity of the risk and not to the methodology of the risk
assessment. 371
202. We disagree with Japan.  Under the  SPS Agreement ,  the obligation to conduct an assessment
of "risk" is not satisfied merely by a general discussion of the disease sought to be avoided by theimposition of a phytosanitary measure.
 372  The Appellate Body found the risk assessment at issue in
EC – Hormones  not to be "sufficiently specific" even though the scientific articles cited by the
importing Member had evaluated the "carcinogenic potential of entire  categories  of hormones, or of
the hormones at issue  in general ." 373  In order to constitute a "risk assessment" as defined in the
SPS Agreement ,  the Appellate Body concluded, the risk assessment should have reviewed the
carcinogenic potential, not of the relevant hormones in general, but of "residues of those hormonesfound in meat derived from cattle to which the hormones had been administered for growth promotionpurposes".
 374  Therefore, when discussing the risk to be specified in the risk assessment in
EC – Hormones ,  the Appellate Body referred in general to the harm concerned (cancer or genetic
damage)  as well as  to the precise agent that may possibly cause the harm (that is, the specific
hormones when used in a specific manner and for specific purposes).
203. In this case, the Panel found that the conclusion of the 1999 PRA with respect to fire blight
was "based on an overall assessment of possible modes of contamination, where apple fruit is only
                                                     
368Panel Report, para. 7.14.
369Japan's appellant's submission, pa ra. 128;  Japan's response to questioning at the oral hearing.
370Japan's appellant's submission, para. 127.
371Ibid. , para. 129.
372Indeed, we are of the view that, as a general matter, "risk" cannot usually be understood only in
terms of the disease or adverse effects that may result.  Rather, an evaluation of risk must connect the possibility
of adverse effects with an antecedent or cause.  For exampl e, the abstract reference to the "risk of cancer" has no
significance, in and of itself, under the  SPS Agreement ;   but when one refers to the "risk of cancer from
smoking cigarettes", the particular risk is given content.
373Appellate Body Report, para. 199. (original italics)  In other words, the risk assessment proffered
by the importing Member in  EC – Hormones  considered the relationship between the broad  grouping  of
hormones that were the subject of the measure and cancer.
374Ibid. , para. 200.WT/DS245/AB/R
Page 74
one of the possible hosts/vectors considered." 375  The Panel further found, on the basis of the
scientific evidence, that the risk of entry, establishment or spread of the disease varies significantlydepending on the vector, or specific host plant, being evaluated.
 376  Given that the measure at issue
relates to the risk of transmission of fire blight th rough apple fruit, in an evaluation of whether the risk
assessment is "sufficiently specific to the case at hand" 377, the nature of the risk addressed by the
measure at issue is a factor to be taken into account.  In the light of these considerations, we are of theview that the Panel properly determined that the 1999 PRA "evaluat[ion of] the risks associated withall possible hosts taken together"
 378 was not sufficiently specific to qualify as a "risk assessment"
under the  SPS Agreement   for the evaluation of the likelihood of entry, establishment or spread of fire
blight in Japan through apple fruit. 379
204. Japan contends that the "methodology" of the risk assessment is not directly addressed by the
SPS Agreement .  In particular, Japan suggests that, whether to analyze the risk on the basis of the
particular pest or disease, or on the basis of a particular commodity, is a "matter of methodology" not
directly addressed by the  SPS Agreement . 380  We agree.  Contrary to Japan's submission, however,
the Panel's reading of  EC – Hormones   does not suggest that there is an obligation to follow any
particular methodology for conducting a risk assessment.   In other words, even though, in a givencontext, a risk assessment must consider a specif ic agent or pathway through which contamination
might occur, Members are not precluded from organizing their risk assessments along the lines of thedisease or pest at issue, or of the commodity to be imported.  Thus, Members are free to consider intheir risk analysis multiple agents in relation to one  disease, provided that the risk assessment attribute
a likelihood of entry, establishment or spread of the disease to each agent specifically.  Members are
also free to follow the other "methodology" identifi ed by Japan and focus on a particular commodity,
subject to the same proviso.
                                                     
375Panel Report, para. 8.270.
376Ibid. , reads, in relevant part:
The scientific evidence submitted by both parties leaves no doubt that the
risk of introduction and spread of th e disease varies considerably according
to the host plant, with nursery stock and budding material identified asknown sources for the spread of fire blight in some cases.
377Appellate Body Report, EC – Hormones , para. 200.
378Panel Report, para. 7.14.
379We note our understanding that the Panel did not base its finding on, nor make any reference to,
whether the  SPS Agreement   requires a risk assessment to analyze the importation of products on a  country-
specific   basis.  Neither participant in this appeal has asked us to find that the definition of "risk assessment" in
the  SPS Agreement  mandates an analysis of risk specific to  each country  of exportation.  As a result, we make
no findings with respect to whether such a  country-specific  analysis is required in order to satisfy a Member's
obligations under Article 5.1 of the  SPS Agreement .
380Japan's appellant's submission, paras. 127-128.WT/DS245/AB/R
Page 75
205. Indeed, the relevant international standards, which, Japan claims, "adopt both
methodologies" 381, expressly contemplate examining risk in relation to particular pathways.  382  Those
standards call for that specific examination even when  the risk analysis is initiated on the basis of the
particular pest or disease at issue 383, as was the 1999 PRA.  Therefore, our conclusion that the Panel
properly found Japan's risk assessment not to be sufficiently specific, does not limit an importing
Member's right to adopt any appropriate "methodology", consistent with the definition of "riskassessment" in paragraph 4 of Annex A to the  SPS Agreement .
                                                     
381Japan's appellant's submission, para. 128, quo ting "Guidelines for Pest Risk Analysis", International
Standard for Phytosanitary Measures , No.2 (Rome 1996), Food and Agriculture Organization of the United
Nations; Exhibit JPN-30, submitted by Japan to the Panel; and "Pest Risk Analysis for Quarantine Pests",
International Standard for Phytosanitary Measures , No.11 (Rome 2001), Food and Agriculture Organization of
the United Nations; Exhibit USA-15, submitted by the United States to the Panel.
382For example, the  International Standard for Phytosanitary Measures , No.2, states at page 14:
The final stage of assessment concerns the introduction potential which
depends on the pathways from the exporting country to the destination, andthe frequency and quantity of pests associated with them. …
The following is a partial checklist that may be used to estimate the
introduction potential divided into those factors which may affect thelikelihood of entry and those factors which may affect the likelihood ofestablishment.
Entry:
-  opportunity for contamination of commodities or conveyances by the pest
…
Establishment:-  number and frequency of consignments of the commodity
…
-  intended use of the commodity
…
(Exhibit JPN-30, submitted by Japan to the Panel, supra , footnote 381)
Similarly, the  International Standard for Phytosanitary Measures , No.11, provides at pages 13-14:
All relevant pathways should be considered. …  Consignments of plants and
plant products moving in international trade are the principal pathways ofconcern and existing patterns of such trade will, to a substantial extent,determine which pathways are relevant.  Other pathways such as other typesof commodities … should be considered where appropriate. …
…
Factors to consider are:-  dispersal mechanisms, including vectors to allow movement from the
pathway to a suitable host
-  whether the imported commodity is to be sent to a few or many
destination points in the [pest risk analysis] area
…
-  intended use of the commodity
…
(Exhibit USA-15, submitted by the United States to the Panel, supra , footnote 381)
383See supra , footnote 382.WT/DS245/AB/R
Page 76
206. We therefore uphold the Panel's finding, in paragraph 8.271 of the Panel Report, that Japan's
1999 Pest Risk Analysis does not satisfy the definition of "risk assessment" in paragraph 4 ofAnnex A to the  SPS Agreement ,  because it fails to evaluate the likelihood of entry, establishment or
spread of fire blight specifically through apple fruit.
B. Evaluating the Likelihood of Entry, Establishment or Spread of Fire Blight
"According to the Sanitary or Phytosanitary Measures Which Might Be Applied"
207. Japan also challenges the Panel's finding that Japan "has not … properly evaluated the
likelihood of entry 'according to the SPS measures that might be applied'."
 384  According to the Panel,
the terms in the definition of "risk assessment" set out in paragraph 4 of Annex A to theSPS Agreement —more specifically, the phrase "according to the sanitary or phytosanitary measures
which might be applied"—suggest that "consideration should be given not just to those specificmeasures which are currently in application, but at least to a potential range of relevant measures."
 385
Japan acknowledged that it did not consider policies other than the measure already applied. 386
However, according to Japan, this "again relates to  the matter of methodology", which is left to the
discretion of the importing Member. 387
208. The definition of "risk assessment" in the  SPS Agreement  requires that the evaluation of the
entry, establishment or spread of a disease be conducted "according to the sanitary or phytosanitary
measures which might be applied". 388  We agree with the Panel that this phrase "refers to the
measures  which might  be applied, not merely to the measures which  are being  applied." 389  The
phrase "which might be applied" is used in the condi tional tense.  In this sense, "might" means:  "were
or would be or have been able to, were or wo uld be or have been allowed to, were or would
perhaps". 390  We understand this phrase to imply that a risk assessment should not be limited to an
examination of the measure already in place or favoured by the importing Member.  In other words,the evaluation contemplated in paragraph 4 of Annex A to the  SPS Agreement   should not be
distorted by preconceived views on the nature and the content of the measure to be taken;  nor should
it develop into an exercise tailored to and carried out for the purpose of justifying decisions  ex post
facto .
                                                     
384Panel Report, para. 8.285.  See Japa n's appellant's submission, para. 133.
385Panel Report, para. 8.285.
386Japan's response to questioning at the oral hearing.
387Japan's appellant's submission, para. 133.
388Annex A to the  SPS Agreement , para. 4.
389Panel Report, para. 8.283. (original italics)
390Shorter Oxford English Dictionary , 5th ed., W.R. Trumble, A. Stevenson (eds.) (Oxford University
Press, 2002), Vol. I, p. 1725.WT/DS245/AB/R
Page 77
209. In this case, the Panel found that the 1999 PRA dealt exclusively with the " 'plant quarantine
measures against  E. amylovora  concerning US fresh apple fruit', which have been taken by Japan
based on the proposal by the US government since 1994". 391  The Panel also found that, in the
1999 PRA, no attempts were made "to assess the 'relative effectiveness' of the various individual
requirements applied, [that] the assessment appears to be based on the assumption from the outset that
all these measures would apply cumulatively" 392, and that no analysis was made "of their relative
effectiveness and whether and why all of them in combination are required in order to reduce oreliminate the possibility of entry, establishment or spread of the disease."
 393  Moreover, the Panel
referred to "the opinions of Dr Hale and Dr Smith that the 1999 PRA 'appeared to prejudge theoutcome of its risk assessment' and that 'it was principally concerned to show that each of the
measures already in place was effective in some respect, and concluded that all should therefore beapplied'."
 394  In our opinion, these findings of fact of the Panel leave no room for doubt that the
1999 PRA was designed and conducted in such a manner that  no  phytosanitary policy other than the
regulatory scheme  already in place  was considered.  Accordingly, we uphold the Panel's finding, in
paragraph 8.285 of the Panel Report, that "Japan has not … properly evaluated the likelihood of entry'according to the SPS measures that might be applied'."
C. Consideration of Scientific Evidence Arising Subsequent to the Risk Assessment at
Issue
210. Finally, Japan argues that "Japan’s PRA  was  consistent with Article 5.1 of the SPS
Agreement at the time of the analysis, because conformity of a risk assessment with Article 5.1should be assessed against the information available at the time of the risk assessment."
 395  According
to Japan, a risk assessment should be evaluated solely against the evidence available at the time of therisk assessment, such that a Member that fulfils the requirement of a risk assessment when adopting ameasure is not held to have acted inconsistently with Article 5.1 upon the discovery of subsequently-published scientific evidence.
 396
211. During the oral hearing, we invited Japan to id entify what evidence, arising subsequent to the
1999 PRA, had been relied upon by the Panel in evaluating Japan's risk assessment under Article 5.1.Japan was unable to point to any such evidence.  We also asked the participants what the legal
                                                     
391Panel Report, para. 8.284, quoting 1999 PRA, § 3-1.  Japan confirmed, in response to questioning at
the oral hearing, that the 1999 PRA considered no phytosanitary measure other than the one in place.
392Panel Report, para. 8.288.
393Ibid.
394Ibid. , para. 8.289. (footnotes omitted)
395Japan's appellant's submission, para. 135. (original italics)
396Ibid. , para. 135.WT/DS245/AB/R
Page 78
consequence would be for the Panel's finding under Article 5.1 if we found, as Japan requests, that the
Panel was not permitted to examine evidence post-dating the 1999 PRA.  The United States suggestedthat there would be no consequence for this dispute because the risk assessment was "inadequate" atthe time it was completed.
 397  Nor did Japan identify any consequence of such a finding on our part.
212. The Panel concluded that Japan's measure could not be "based on" a risk assessment, as
required by Article 5.1, because the 1999 PRA did not satisfy the definition of "risk assessment" setout in paragraph 4 of Annex A to the  SPS Agreement .
 398  The Panel determined that the definition of
"risk assessment" was not satisfied because the 1999 PR A failed to meet the two elements discussed
above, namely, that a risk assessment (i) "evaluate the likelihood of entry, establishment or spread of "
the plant disease at issue, and (ii) conduct such evaluation "according to the SPS measures whichmight be applied".
 399
213. As we see it, Japan was unable to identify any scientific evidence relied upon by the Panel,
but published after the issuance of the 1999 risk assessment, because the Panel did not, in fact, base its
finding on such evidence.  The Panel's analysis focused almost exclusively on the risk assessment
itself to determine whether the 1999 PRA satisfied the legal requirements the Panel found in theSPS Agreement .  The Panel identified those requirements as the need to assess a risk with a certain
degree of "specificity", to evaluate probability rather than possibilities, and to evaluate the likelihoodof entry "according to the sanitary or phytosanitary measures which might be applied".
 400  Beyond the
text of the 1999 PRA, the only scientific information relied upon by the Panel relates to its finding on"specificity":  on this point, the Panel determined that "scientific evidence submitted by both partiesleaves no doubt that the risk of introduction and spread of the disease varies considerably according to
the host plant".
 401  From this finding of fact, the Panel concluded that Japan's risk assessment was not
"sufficiently specific to the matter at issue" because it did not examine the risk in relation to applefruit in particular.
 402
214. In stating that its finding of fact was based on "scientific evidence submitted by both parties",
the Panel did not cite those studies or provide any indication of whether those studies dated frombefore or after Japan's risk assessment.  Japan does not assert that this scientific evidence, or any otherscientific evidence underlying the Panel's conclusion with respect to Article 5.1, was not available to
                                                     
397The United States' response to questioning at the oral hearing.
398Panel Report, paras. 8.290-8.291.
399Ibid. , paras. 8.280, 8.285, and 8.288.
400See, for example, ibid., paras. 8.268, 8.270-8.271, 8. 274-8.278, 8.284, and 8.287-8.288.
401Ibid. , para. 8.271.
402Ibid.WT/DS245/AB/R
Page 79
Japan at the time of the risk assessment.  We also note that the Panel record includes relevant
scientific evidence adduced by both parties that arose  before  Japan's risk assessment. 403  S u c h
evidence could have reasonably formed the basis for the Panel's conclusion that the risk from fireblight varies according to the host plant.  Under these circumstances, we are not persuaded that, when
analyzing the conformity of the 1999 PRA with Japan's obligations under Article 5.1, the Panel relied
on scientific evidence that was not available to Japan at the time it conducted its risk assessment.
215. As Japan failed to establish that the Panel utilized subsequent scientific evidence in evaluating
the risk assessment at issue, it is not necessary for us to express views on the question whether theconformity of a risk assessment with Article 5.1 should be evaluated solely against the scientificevidence available at the time of the risk assessment, to the exclusion of subsequent information.Resolution of such hypothetical claims would not serve "to secure a positive solution" to thisdispute.
 404
216. Accordingly, we uphold the Panel's finding, in paragraph 8.290 of the Panel Report, that
Japan's 1999 Pest Risk Analysis does not satisfy the definition of "risk assessment" set out in
paragraph 4 of Annex A to the  SPS Agreement   because it (i) fails to "evaluate the likelihood of entry,
establishment or spread of " the plant disease at issue, and (ii) fails to conduct such an evaluation
"according to the SPS measures which might be applied".  Furthermore, as the 1999 PRA is not a"risk assessment" within the meaning of the  SPS Agreement ,  it follows, as the Panel found, in
paragraphs 8.291 and 9.1(c) of the Panel Report, that Japan's phytosanitary measure at issue is not"based on" a risk assessment, as required by Article 5.1 of the  SPS Agreement .
X. Article 11 of the DSU
217. Japan raises two challenges under Article 11 of the DSU related to the Panel's fact-finding:
one relates to the Panel's analysis under Article 2.2 of the  SPS Agreement ,  and the other relates to the
Panel's analysis under Article 5.1 of that Agreement.  In Section IV of this Report, we found that the
Article 11 challenge relating to the Panel's analysis under Article 5.1 was not sufficiently identified in
                                                     
403See, for example, R.G. Roberts et al ., "The potential for spread of  Erwinia amylovora   and fire
blight via commercial apple fruit; a critical review and risk assessment", Crop Protection  (1998), Vol. 17, No. 1,
pp. 19-28, at p. 24; Exhibit JPN-5, submitted by Japan to the Panel and Exhibit USA-4, submitted by the UnitedStates to the Panel;   T. van der Zwet  et al., "Population of Erwinia amylovora  on External and Internal Apple
Fruit Tissues", Plant Disease  (1990), Vol. 74, No. 9, pp. 711-716, at p. 711; Exhibit JPN-7, submitted by Japan
to the Panel;   and S.V. Thomson, "Fire blight of apple and pear", Diseases of Fruit Crops  (J. Kumar  et al .,
eds.), Vol. 3, pp. 32-65, § 2-1 at p. 32 and § 2-9-2 at p. 49; Exhibit USA-44, submitted by the United States to
the Panel.
404Article 3.7 of the DSU.WT/DS245/AB/R
Page 80
Japan's Notice of Appeal to place the United States on notice thereof. 405  We found that the challenge
relating to Article 5.1 was not properly before us, and we therefore declined to rule on it.  We thusexamine below only Japan's challenge to the Panel's fact-finding under Article 2.2 of theSPS Agreement .
218. With respect to Article 2.2 of the  SPS Agreement ,  Japan challenges the Panel's analysis of
the likelihood that the pathway of transmission for fire blight from apple fruit to other plants would becompleted.  In particular, Japan contests the Panel's finding that "it has not been established withsufficient scientific evidence that the last stage of the pathway (i.e. the transmission of fire blight to ahost plant) would likely be completed."
 406  The Panel made this finding of fact on the last stage of the
pathway with respect to apple fruit, which includes mature, symptomless apples as well as apples thatare not mature and symptomless.  According to Japan, the Panel, in its analysis, made certain errorswhen evaluating the relevant scientific evidence, each of which constitutes a failure on the part of thePanel to "make an objective assessment of the facts of the case" under Article 11 of the DSU.  The
errors alleged by Japan are the following:
(i) that the Panel made a "material" factual error in its characterization of the
experimental evidence underlying the Panel's conclusion that fire blight was not likelyto be transmitted to other plants
 407;
(ii) that the Panel arrived at a conclusion that covered infected apple fruit, when the
evidence before it "centered around" mature, symptomless apple fruit 408;
(iii) that the Panel failed to take into account the "precautionary principle", or the caution
emphasized by the Panel's experts, in arriving at its conclusion on the likelihood of
completion of the pathway 409;  and
(iv) that the Panel's conclusion on the likelihood of completion of the pathway is
inconsistent with the Panel's recognition that the risk identified by the experts was notmerely a "theoretical risk".
 410
                                                     
405See  supra , paras. 127-128.
406Panel Report, para. 8.168.
407Japan's appellant's submission, paras. 52-54.
408Ibid. , para. 51.
409Ibid. , paras. 64-70.
410Ibid. , paras. 60-63.WT/DS245/AB/R
Page 81
219. The United States disagrees with Japan's Article 11 challenge to the extent that it applies to
mature, symptomless apples, and contends that the Panel had no authority to make findings on applefruit other than mature, symptomless apples.  The United States argues that Japan essentiallychallenges the Panel's characterization and weighing of the evidence, effectively seeking to compel a
Panel finding on completion of the pathway where the record contains no evidence to support such a
finding.  In the light of the "high standard" that must be met to succeed on a claim under Article 11,the United States submits that Japan's claim should be rejected with respect to mature, symptomlessapples.
 411
220. We begin by noting that Article 11 of the DSU requires that a panel,  inter alia :
… make an objective assessment of the matter before it, including an
objective assessment of the facts of the case and the applicability of
and conformity with the relevant covered agreements, and make such
other findings as will assist the DSB in making the recommendations
or in giving the rulings provided for in the covered agreements.
221. In the first appeal presenting an Article 11 challenge to a Panel's fact-finding 412,
EC – Hormones ,  the Appellate Body identified the "duty to make an objective assessment of the facts
[as], among other things, an obligation to consider the evidence presented to a panel and to make
factual findings on the basis of that evidence." 413  In  EC – Hormones ,  the Appellate Body observed
further that the:
[d]etermination of the credibility and weight properly to be ascribed
to (that is, the appreciation of) a given piece of evidence is part and
parcel of the fact finding process and is, in principle, left to the
discretion of a panel as the trier of facts. 414
Since  EC – Hormones ,  the Appellate Body has consistently emphasized that, within the bounds of
their obligation under Article 11 to make an objective assessment of the facts of the case, panels enjoy
                                                     
411United States' appellee's submission, para. 10.
412Prior to  EC – Hormones , an Article 11 claim was raised on appeal in  US – Wool Shirts and Blouses ,
but that claim addressed solely "whether Article 11 of the DSU  entitles a complaining party to a finding on each
of the legal claims it makes to a panel". (Appellate Body Report, p. 17, DSR 1997:I, 323, at 338)  As such, the
claim did not challenge the panel's "assessment of the facts of the case".  In addition, in  Canada – Periodicals ,
the appellant raised Article 11 when challenging the panel's reliance on a "hypothetical example" to make adetermination of "like products" under Article III:2 of the GATT 1994. (Appellate Body Report, p. 5, DSR1997:I, 449, at 452)  The Appellate Body, however, made no ruling as to Article 11. ( Ibid., pp. 20-23, DSR
1997:I, 449, at 465-468)
413Appellate Body Report, para. 133.
414Ibid. , para. 132.WT/DS245/AB/R
Page 82
a "margin of discretion" as triers of fact. 415  Panels are thus "not required to accord to factual evidence
of the parties the same meaning and weight as do the parties" 416 and may properly "determine that
certain elements of evidence should be accorded more weight than other elements". 417
222. Consistent with this margin of discretion, the Appellate Body has recognized that "not every
error in the appreciation of the evidence (although it may give rise to a question of law) may be
characterized as a failure to make an objective assessment of the facts." 418  When addressing claims
under Article 11 of the DSU, the Appellate Body does not "second-guess the Panel in appreciatingeither the evidentiary value of … studies or the consequences, if any, of alleged defects in [theevidence]".
 419  Indeed:
[i]n assessing the panel's appreciation of the evidence, we cannot
base a finding of inconsistency under Article 11 simply on the
conclusion that we might have reached a different factual finding
from the one the panel reached.  Rather, we must be satisfied that the
panel has exceeded the bounds of its discretion, as the trier of facts,in its appreciation of the evidence.
 420
Where parties challenging a panel's fact-finding under Article 11 have failed to establish that a panel
exceeded the bounds of its discretion as the trier of facts, the Appellate Body has not "interfere[d]" 
with the findings of the panel. 421
                                                     
415Appellate Body Report, EC – Asbestos , para. 161.  See also, for example, Appellate Body Report,
EC – Tube or Pipe Fittings , para. 125;  Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 170,
177, and 181;  Appellate Body Report, EC – Sardines , para. 299;  Appellate Body Report, Korea – Alcoholic
Beverages , paras. 161-162;  Appellate Body Report, Japan – Agricultural Products II , paras. 141-142;  Appellate
Body Report, US – Wheat Gluten , para. 151;  Appellate Body Report, Australia – Salmon , para. 266;  and
Appellate Body Report, Korea – Dairy , para. 138.
416Appellate Body Report, Australia – Salmon , para. 267.
417Appellate Body Report, EC – Asbestos , para. 161.
418Appellate Body Report, EC – Hormones , para. 133.
419Appellate Body Report, EC – Asbestos , para. 177, quoting  Appellate Body Report, Korea –
Alcoholic Beverages , para. 161.
420Appellate Body Report, EC – Asbestos , para. 159, quoting Appellate Body Report, US – Wheat
Gluten , para. 151.
421Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 170;  Appellate Body Report,
US – Carbon Steel , para. 142, quoting Appellate Body Report, US – Wheat Gluten , para. 151.WT/DS245/AB/R
Page 83
A. The Panel's Characterization of Experimental Evidence
223. Japan first challenges a "factual error" in one of the statements offered as support for the
Panel's finding on the completion of the last stage of the pathway for apple fruit. 422  Japan points to
the following statement of the Panel:
We note that experiments trying to reproduce the conditions
applicable to discarded apples have not led to any visible
contamination, even when ooze was reported to exist. 423 (footnote
omitted)
According to Japan, the experiments referred to by  the Panel used inoculated apples, not naturally
infected apples.  Japan advances that ooze has not been reported in inoculated apples. 424  In Japan's
submission, therefore, the above statement is an erroneous characterization of the underlyingscientific studies.
 425
224. We observe that the Panel made this statement in support of its finding of fact that it has not
been established with sufficient scientific evidence that the last stage of the pathway (that is, thetransmission of fire blight from imported apples to a host plant) would likely be completed.
 426  The
Panel also formulated this finding of fact in these terms:
[A]ssuming that [a situation of infected apples or infested apples]
would arise, the entry, establishment or spread of the disease as a
result of the presence of these bacteria in or on apple fruit would
require the completion of an additional sequence of events which isdeemed unlikely, and which has not even been experimentally
established to date.
 427
In addition to the studies cited by the Panel, the characterization of which Japan contests, the Panel
referenced the following evidence to substantiate th is finding of fact:  (i) the "number of cumulative
conditions" identified by the experts for a successful completion of the pathway 428;   (ii) the
observation by the experts that contamination by birds had not been established 429;  (iii) to the extent
that the experts found "short distance communication" to be possible through rain or bees, this finding
                                                     
422Japan's appellant's submission, para. 52.
423Panel Report, para. 8.166.
424Japan's appellant's submission, para. 52.
425Ibid.
426Panel Report, para. 8.168.
427Ibid. , para. 8.171(d).
428Ibid. , para. 8.166, quoting  ibid., paras. 6.70 (Dr. Hayward) and 6.71 (Dr. Smith).
429Ibid. , para. 8.166, citing paras. 241 (Dr. Smith) and 263 (Dr. Geider) of Annex 3 thereto.WT/DS245/AB/R
Page 84
"related to contamination at the flowering stage, not to contamination from apple fruit" 430;   and
(iv) "[t]he evidence submitted by Japan was essentially circumstantial or deemed unconvincing by theexperts."
 431  In the light of the other factual material relied upon by the Panel, including its express
consideration and discounting of scientific evidence submitted by Japan, we cannot find that the Panel
has exceeded its "margin of discretion" 432 in evaluating the relevant evidence before it, to call into
question the Panel's finding in relation to the last stage of the pathway.  Accordingly, Japan has failedto establish that the Panel did not satisfy the obligations of Article 11 so as to justify our interferencewith a panel's finding of fact.
B. Evidence "Centered Around" Mature, Symptomless Apple Fruit
225. We turn now to the next aspect of Japan's claim under Article 11 of the DSU—that the Panel
acted inconsistently with its obligations thereunder in making findings that covered the completion of
the pathway for transmission of fire blight by "infected" apple fruit, because the evidence before thePanel "centered around" the pathway with respect to mature, symptomless fruit.
 433  In other words,
Japan submits that there is a lack of connection between the evidence considered by the Panel and itsfindings on the completion of the last stage of the pathway for transmission of fire blight.
226. As we have just observed, the Panel found that the additional sequence of steps required for
completion of the pathway from apple fruit to ot her host plants would be unlikely to occur.
 434  The
finding of the Panel covered both the pathway for mature, symptomless apples and that for applesother than mature, symptomless apple fruit.  In our view, the Panel did not err in making this finding.
However, the Panel's reasoning was perhaps not sufficiently explicit, with the result that Japan
deduced that the Panel had failed to make an objective assessment of the facts before it on completionof the last stage of the pathway.
227. Specifically, it might have been helpful had the Panel been more precise about the scope of its
factual analysis.  We recall that the Panel made the following findings:  (i) infection of mature,symptomless apples has not been established;  (ii) the presence of endophytic bacteria in mature,symptomless apples is not generally established;  (iii) the presence of epiphytic bacteria in mature,symptomless apples is not excluded, but is considered to be extremely rare;  and (iv) infection or
                                                     
430Panel Report, para. 8.166.
431Ibid. , para. 8.167.
432Appellate Body Report, EC – Sardines , para. 299, quoting Appellate Body Report, EC – Asbestos ,
para. 161.
433Japan's appellant's submission, para. 51.
434Supra , para. 224, quoting Panel Report, para. 8.171(d).WT/DS245/AB/R
Page 85
infestation of apples other than mature, symptomless apple fruit is not contested. 435  These findings
imply that the factual analysis as regards the comple tion of the last stage of the pathway with respect
to mature, symptomless apples does not need to include the hypothesis of the importation of infectedapples to Japan, as, according to the Panel, "infection of mature, symptomless apples has not been
established".
 436  By contrast, the factual analysis concerning the completion of the last stage of the
pathway with respect to apples other than mature, symptomless apple fruit,  is  required to address the
hypothesis of the importation of infected apples to Japan, as, in the view of the Panel, infection ofimmature apple fruit is not contested.
228. The Panel could also have been more precise about the respective responsibilities of the
parties for providing proof of a fact.  In connection with the  prima facie   case it had to establish, the
United States made allegations of fact that the last stage of the pathway would not be completed asregards mature, symptomless apples.
 437  The United States was responsible for proving these
allegations of fact by reason of the principle set out in  US – Wool Shirts and Blouses   that the party
"who asserts a fact … is responsible for providing proof thereof." 438  For its part, Japan, in the context
of its attempts to counter the case put forward by the United States, made allegations of fact relatingto the completion of the last stage of the pathway with respect to infected apples.
 439  Given the Panel's
finding of fact that it is unlikely that mature, symptomless apples would be infected, it can bereasonably assumed that any infected apples exported to Japan would be apples other than mature,symptomless apple fruit.  Under the principle set out in  US – Wool Shirts and Blouses ,  it was thus for
Japan, and not the United States, to provide proof of these allegations of fact relating to infectedapples.
229. Having said that the Panel could have been clearer on these two aspects of its reasoning, we
nevertheless disagree with Japan that the Panel acted inconsistently with its obligations underArticle 11 of the DSU in making a finding that covered the completion of the pathway fortransmission of fire blight by "infected" apple fruit, even though the evidence before the Panel"centered around" the pathway with respect to mature, symptomless apple fruit.
                                                     
435Panel Report, para 8.171.
436Ibid. , para 8.171(a).
437See, for example, Panel Report, paras. 4.82(d) and 4.83.
438Appellate Body Report, p. 14, DSR 1997:I, 323, at 335.
439See, for example, Panel Report, para. 4.84.WT/DS245/AB/R
Page 86
230. The Panel agreed with the United States that, as regards mature, symptomless apples, the
completion of the last stage of the transmission of fire blight is unlikely. 440  The Panel referred to
various pieces of evidence in support of this conclusion. 441  The evidence identified focused on
mature, symptomless apples and, therefore, supported the finding that completion of the last stage of
the transmission of fire blight was unlikely, to the extent that this finding concerns mature,
symptomless apples.
231. As regards apples other than mature, symptomless apple fruit, the Panel assumed, correctly,
that Japan had the responsibility of providing proof of its allegations of fact, namely that fire blightcould be transmitted from an infected apple to a host plant.  We understand the Panel to have dealtwith these allegations of fact from Japan when it said that "[t]he evidence submitted by Japan wasessentially circumstantial or deemed unconvincing by the experts", and that "Japan did not submitsufficient scientific evidence in support of its allegation that the last step of the pathway had beencompleted or was likely to be completed."
 442  We understand the Panel's conclusions to cover infected
apples, as Japan made allegations of fact and brought evidence on such apples. 443  Accordingly, we
see no lack of connection between the overall evidence that the Panel considered and the findings itmade with respect to the last stage of the pathway for transmission of fire blight.  Therefore, we are ofthe view that the Panel did not act inconsistently with its obligations under Article 11 of the DSU.
C. Experts' Statements of Caution
232. Japan's third challenge under Article 11 of the DSU is premised on the Panel's alleged failure
to take into account adequately the "precautionary principle".  Japan bases this challenge on the fact
that the Panel did not take into account "the need of caution emphasized by the experts" with respectto the phytosanitary measure aimed at preventing the entry of fire blight into Japan.
 444  Based on what
Japan understands to be the experts' recognition that the risk of harm from the introduction of fireblight results in a "general need [for] prudence", Japan argues that the Panel "should have recognizedthe risk of completion of the pathway from infected apple fruit."
 445
233. In  EC – Hormones ,  the Appellate Body noted that the "precautionary principle" had not yet
attained "authoritative formulation" outside the field of international environmental law 446, but that it
                                                     
440Panel Report, para. 8.171.
441Ibid. , para. 8.166.
442Ibid. , para. 8.167.
443Ibid. , para. 4.84.
444Japan's appellant's submission, paras. 64 and 70.
445Ibid. , paras. 68-69.
446Appellate Body Report, para. 123.WT/DS245/AB/R
Page 87
remained relevant in the context of the  SPS Agreement ,  particularly as recognized in certain
provisions of that Agreement. 447  However, the Appellate Body found that the "precautionary
principle" did not release Members from their WTO obligations and, as such, did not "override theprovisions of Articles 5.1 and 5.2 of the  SPS Agreement ."
 448
234. Japan does not argue that the Panel should have applied the "precautionary principle" as a
principle separate and distinct from the provisions of the  SPS Agreement .  Nor does Japan argue that
the "precautionary principle" should have been employed by the Panel as part of its interpretiveanalysis of the requirements of the  SPS Agreement .  Rather, we understand Japan to contend that the
"precautionary principle" was embodied in the opinions of the experts cautioning against eliminationof phytosanitary measures protecting Japan from fire blight;   and that, accordingly, such caution"should have been given greater weight in the conclusion of the Panel on completion of thepathway."
 449  Japan's argument, therefore, is aimed solely at the Panel's consideration of the evidence
before it.
235. As an initial matter, we note that Japan relies primarily on statements from two experts and on
the fact that the other experts did not object to these views. 450  The first expert cited by Japan
observed that:
… when the phytosanitary system is changed it should be changed
under circumstances that retain some degree of control on what is
happening and not in a single step that  removes control
altogether . 451 (emphasis added)
The second expert cited by Japan observed as follows:
[A] decision to  remove most restrictions  for importation of apples
from fire blight countries should consider that the Japanese apple
production is highly sophisticated following a demand for high
quality apples.  Import of any grade of apple quality to Japan such as
low quality at a cheap price could undermine the control of disease
problems regardless to the low risk to distribute fire blight withapples.
 452 (emphasis added)
                                                     
447Appellate Body Report, para. 124.
448Ibid. , para. 125.
449Japan's appellant's submission, para. 69.
450Ibid. , paras. 67-68.
451Ibid. , para. 67, quoting Annex 3 to the Panel Report, para. 423 (Dr. Smith).
452Japan's appellant's submission, para . 67, quoting Dr. Geider's written response to questions posed by
the Panel, 10 December 2002, p. 8.  See also, Panel Report, para. 6.175.WT/DS245/AB/R
Page 88
236. The concerns articulated by these experts thus address the consequences associated with
eliminating  all  or  most  controls over imports, combined with the importation of poor-grade apples.
These concerns do  not  speak about whether the pathway for transmission of fire blight could be
completed.  Indeed, the same experts cited by Japan as promoting a cautious approach 453,
Dr. Ian Smith and Dr. Klaus Geider, also expressed the opinion before the Panel that the completion
of the pathway was unlikely. 454  It is therefore difficult to see how the Panel's conclusion that
completion of the last stage of the pathway for apple fruit (whether "mature, symptomless" or
otherwise) would be unlikely, is necessarily inconsistent with or undermined by the caution expressedby the experts.
237. Furthermore, the Panel itself made reference to the experts' note of caution:
[W]e note that even if the scientific evidence before us demonstrates
that apple fruit is highly unlikely to be a pathway for entry,establishment and spread of fire blight within Japan, it does
suggest that some slight risk of contamination cannot be totally
excluded.  …  [N]one of the experts were comfortable with the
notion of eliminating "in one step" all phytosanitary controls, taking
into account Japan's island environment and climate.
 455 (footnote
omitted)
As such, contrary to Japan's assertion, the Panel did explicitly "tak[e] into account" 456 the experts'
cautionary statements, but understood properly that those statements focused on an issue differentfrom the likelihood of completion of the last stage of the pathway for transmission of fire blight fromapple fruit.  Accordingly, the Panel did not err in refusing to "recognize[] the risk of completion of thepathway from infected apple fruit"
 457 on the basis of the experts' statements of caution.
238. In any event, we note that Japan essentially disagrees with the Panel's appreciation of the
evidence, and in particular, its appreciation of the experts' expressions of caution.  As Japan states inits appellant's submission, "[t]he impact of these expressions of scientific caution, clearly on therecord,  should have been given greater weight  in the conclusion of the Panel on completion of the
pathway."
 458  In  EC – Sardines   and in  EC – Hormones ,  the Appellate Body said that:
                                                     
453Japan's appellant's submission, para. 67.
454Panel Report, para. 6.71, and paras. 241 (Dr. Smith) and 263 (Dr. Geider) of Annex 3 thereto.
455Ibid. , para. 8.173, citing paras. 386, 389, 409, 411, 413-414, 419, 423-424, 426, and 429 of Annex 3
thereto.
456Japan's appellant's submission, para. 70.
457Ibid. , para. 69.
458Ibid.  (emphasis added;  footnote omitted)WT/DS245/AB/R
Page 89
[d]etermination of the credibility and weight properly to be ascribed
to (that is, the appreciation of) a given piece of evidence is part and
parcel of the fact finding process and is, in principle, left to the
discretion of a panel as the trier of facts. 459
Although a panel's discretion is necessarily circumscribed by its duty to render an objective
assessment of the facts of the case, Japan has proffered no argument challenging the objectivity of thePanel's assessment.  Therefore, in our view, even if the Panel did not give as much weight as Japanwould have liked to the experts' statements of caution with respect to modifications to Japan'sphytosanitary measure, Japan has failed to establish that, in doing so, the Panel exceeded the boundsof its discretion as the trier of facts.
D. Completion of the Pathway and "Theoretical Risk"
239. Japan's final Article 11 claim alleges an inconsistency in the Panel's fact-finding that renders
its analysis of the pathway for transmission of fire blight through apple fruit inconsistent with itsobligation to make an "objective assessment of the facts of the case".  The Panel noted that "none ofthe experts were comfortable with the notion of eliminating 'in one step' all phytosanitary controls,taking into account Japan's island environment and climate."
 460  The United States had argued that the
experts' prudence in this regard amounted to a "theoretical risk", which, as the Appellate Body
observed in  EC – Hormones ,  was not intended to be the subject of a risk assessment under the
SPS Agreement . 461  The Panel disagreed with the United States, saying:
We do not agree with the United States that the scientific prudence
displayed by the experts should be completely assimilated to a
"theoretical risk" within the meaning given to that terms by the
Appellate Body in  EC – Hormones .  On the other hand, we can only
note that Japan did not submit "sufficient scientific evidence" in
support of its allegation that the pathway could be completed. 462
Japan contends that the Panel's rejection of the United States' argument that the experts' prudence
constituted a " 'theoretical risk' implies that the risk from infected apple fruit is  real,  and that the
                                                     
459Appellate Body Report, EC – Sardines , para. 300;  Appellate Body Report, EC – Hormones ,
para. 132.
460Panel Report, para. 8.173, quoting Annex 3 thereto,  para. 419, and citing paras. 386, 389, 409, 411,
413-414, 423-424, 426 and 429 thereof.
461Ibid. , para. 8.175.
462Ibid.WT/DS245/AB/R
Page 90
entire pathway could be completed". 463  As such, in Japan's view, this implicit finding is incompatible
with the Panel's ultimate finding that the pathway from apple fruit was unlikely to be completed. 464
240. The Panel made the finding of fact that "scientific evidence suggests a negligible risk of
possible transmission of fire blight through apple fruit." 465  On the basis of this finding of fact, the
Panel concluded that the measure is "clearly  disproportionate to the risk identified" 466 and,
consequently, that the measure is maintained without sufficient scientific evidence.  The conclusion ofthe Panel that the measure is maintained without sufficient scientific evidence rests on the finding offact of "a negligible risk of possible transmission of fire blight through apple fruit"
 467;  it has no
relation to the Panel's rejection of the United States' argument that the experts' prudence constituted a"theoretical risk".
241. The comments of the Panel in response to the argument of the United States on "theoretical
risk" should be viewed in their appropriate context.  In  EC – Hormones ,  the Appellate Body referred
to the notion of "theoretical uncertainty" in the context of Article 5.1 of the  SPS Agreement .  The
Appellate Body indicated that Article 5.1 does not address theoretical uncertainty, that is to say,
"uncertainty that theoretically always remains since science can  never   provide  absolute   certainty
that a given substance will not  ever  have adverse health effects."
 468  We understand that the
"scientific prudence" displayed by the experts in this case related to the risks that might arise fromradical changes in Japan's current system of phytosanitary controls, taking into account Japan's islandenvironment and climate.
 469  The scientific prudence displayed by the experts did not relate to the
"theoretical uncertainty" that is inherent in the scientific method and which stems from the intrinsiclimits of experiments, methodologies, or instruments deployed by scientists to explain a given
phenomenon.  Therefore, we agree with the Panel that the scientific prudence displayed by the experts
should not be "completely assimilated" to the "theoretical uncertainty" that the Appellate Bodydiscussed in  EC – Hormones   as being beyond the purview of risks to be addressed by measures
subject to the  SPS Agreement .  Nevertheless, contrary to Japan's understanding, that scientific
                                                     
463Japan's appellant's submission, para. 61 (origi nal italics), quoting Panel Report, para. 8.175.
464Japan's appellant's submission, paras. 60-61.
465Panel Report, para. 8.169.
466Ibid. , para. 8.198.
467Ibid. , para. 8.169.
468Appellate Body Report, EC – Hormones , para. 186. (original italics)
469We find support for this understanding of "scientific prudence" in the Panel's references to the
experts' views on the removal of controls, which references immediately precede the Panel's finding that theexperts' "scientific prudence" could not be "completely assimilated" to a "theoretical risk". (See Panel Report,
paras. 8.173-8.174)  These statements of the experts, therefore, are the same as those emphasized by Japan inour earlier discussion as statements of caution that should have been given greater weight in the Panel's analysis.(See supra , paras. 235-236)WT/DS245/AB/R
Page 91
prudence does not undermine the finding of negligibility of the risk of possible transmission of fire
blight through apple fruit:  indeed, the experts' scientific prudence is related to a different question,namely, the hypothetical scenario of future changes in Japan's regulatory environment.
 470
Accordingly, we disagree with Japan that the Panel's rejection of the United States' argument on
" 'theoretical risk' implies that the risk from infected apple fruit is  real,  and that the entire pathway
could be completed". 471  In our view, the Panel, in rejecting the United States' argument on
"theoretical risk", while at the same time finding that the risk of transmission of fire blight throughapple fruit is "negligible"
 472, did not act inconsistently with Article 11 of the DSU.
242. We therefore find that the Panel did not act inconsistently with Article 11 of the DSU, with
respect to its analysis of the United States' claim under Article 2.2 of the  SPS Agreement .
XI. Findings and Conclusions
243. For the reasons set out in this Report, the Appellate Body:
(a) finds that the Panel had the "authority" to make findings and draw conclusions with
respect to all apple fruit from the United States, including immature apples;
(b) upholds the Panel's findings, in paragraphs 8.199 and  9.1(a) of the Panel Report, that
Japan's phytosanitary measure at issue is maintained "without sufficient scientific
evidence" within the meaning of Article 2.2 of the  SPS Agreement ;
(c) upholds the Panel's findings, in paragraphs 8.222 and 9.1(b) of the Panel Report, that
Japan's phytosanitary measure at issue was not imposed in respect of a situation
"where relevant scientific evidence is insu fficient", and, therefore, that it is not a
provisional measure justified under Article 5.7 of the  SPS Agreement ;
(d) upholds the Panel's findings, in paragraphs 8.271, 8.285, and 8.290 of the Panel
Report, that Japan's 1999 Pest Risk Analysis does not satisfy the definition of "risk
assessment" set out in paragraph 4 of Annex A to the  SPS Agreement   because it
(i) fails to "evaluate the likelihood of entry, establishment or spread of " the plant
disease at issue, and (ii) fails to conduct such an evaluation "according to the SPS
                                                     
470We express no view on the changes to Japan's phytosanitary measure that might be required to bring
it into conformity with Japan's WTO obligations, nor do we speak to any other issue related to the means ofimplementation of the possible rulings and recommendations of the DSB in this dispute.
471Japan's appellant's submission, para. 61. (original italics)
472Panel Report, para. 8.169.WT/DS245/AB/R
Page 92
measures which might be applied".  Consequently, the Appellate Body upholds the
Panel's findings, in paragraphs 8.291 and 9.1(c) of the Panel Report, that Japan's
phytosanitary measure at issue is not "based on" a risk assessment, as required byArticle 5.1 of the SPS Agreement ;
(e) finds that the Panel did not act inconsistently with Article 11 of the DSU, with respect
to its analysis of the United States' claim under Article 2.2 of the  SPS Agreement ;
and
(f) finds that the issue of the Panel's compliance with Article 11 of the DSU, with respect
to its analysis of the United States' claim under Article 5.1 of the  SPS Agreement ,
was not raised by Japan in its Notice of Appeal and therefore is not properly beforethe Appellate Body in this appeal.  Conse quently, the Appellate Body does not rule on
this issue.
244. The Appellate Body therefore recommends that the Dispute Settlement Body request Japan to
bring its measure, found in this Report, and in the Panel Report as upheld by this Report, to be
inconsistent with its obligations under the  SPS Agreement ,  into conformity with that Agreement.WT/DS245/AB/R
Page 93
Signed in the original at Geneva this 12th day of November 2003 by:
_________________________
John Lockhart
Presiding Member
_________________________ _________________________
Luiz Olavo Baptista Giorgio Sacerdoti
Member MemberWT/DS245/AB/R
Page 94
ANNEX A
WORLD TRADE
ORGANIZATIONWT/DS245/5
28 August 2003
(03-4543)
Original:  English
JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
Notification of an Appeal by Japan
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
The following notification, dated 28 August 2003, sent by Japan to the Dispute Settlement
Body (the "DSB"), is circulated to Members.  This notification also constitutes the Notice of Appeal,
filed on the same day with the Appellate Body, pursuant to the  Working Procedures for Appellate
Review .
_______________
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, Japan
hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in the Panel
Report on Japan-Measures Affecting the Impor tation of Apples (WT/DS245/R, dated 15th July 2003)
and certain legal interpretations developed by the Panel.
Japan seeks review by the Appellate Body of the conclusions of the Panel that Japan’s
phytosanitary measure on the United States apples is inconsistent with the Agreement on the
Application of Sanitary and Phytosanitary Measures ("SPS Agreement").  These findings are in error,and are based on erroneous findings on issues of law and related legal interpretations.  The Appeal
relates to the following issues:
1. The Panel erred in law in finding that Japan acted inconsistently with its
obligations under Article 2.2 of the SPS Agreement.  This finding reflects the Panel’serroneous interpretation of the rule of burden of proof, and the Panel’s failure to make
an objective assessment of the matter before it under Article 11 of the DSU.
2. The Panel erred in law in finding that Japan’s phytosanitary measure was
inconsistent with the requirements under Article 5.7 of the SPS Agreement.  Thisfinding is based on an erroneous interpretation of the requirements under Article 5.7.
3. The Panel erred in law in finding that Japan’s phytosanitary measure was not
based on a risk assessment within the meaning of Article 5.1 of the SPS Agreement.
This finding is based on an erroneous interpretation of the requirements of a risk
assessment under Article 5.1.
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