WT/DS245/RW 
 Page 131 
 
 
 ANNEX 1 
 
JAPAN – MEASURES AFFECTING THE IM PORTATION OF APPLES (WT/DS245) 
 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE UNITED STATES 
 
Working Procedures for the Panel  
  
1. In its proceedings the Panel shall follow the relevant provisions of the Dispute Settlement 
Understanding (DSU).  In addition, the following working procedures shall apply. 
2. The Panel shall meet in closed session.  The parti es to the dispute, and interested third parties, 
shall be present at the meetings only when i nvited by the Panel to appear before it.   
3. The deliberations of the Panel and the documents  submitted to it shall be kept confidential. 
Nothing in the DSU shall preclude a party to a dis pute from disclosing statements of its own positions 
to the public.  Members shall treat as confidentia l information submitted by another Member to the 
Panel which that Member has designated as confid ential. Where a party to a dispute submits a 
confidential version of its written submissions to th e Panel, it shall also, upon request of a Member, 
provide a non-confidential summary of the informa tion contained in its subm issions that could be 
disclosed to the public. 
4. Before the substantive meeting of the Panel with  the parties, the parties to the dispute shall 
transmit to the Panel written submissions and subse quently written rebuttals in which they present the 
facts of the case, their arguments and their count er-arguments, respectively.  Third parties may 
transmit to the Panel written submissions after the rebuttals of the parties have been submitted. 
5. All third parties which have notified their inte rest in the dispute to the Dispute Settlement 
Body shall be invited in writing to present their views during a session of the substantive meeting of 
the Panel set aside for that purpose.  All such thir d parties may be present during the entirety of this 
session. 
6. At its substantive meeting with the parties, th e Panel shall ask the United States to present its 
case first.  Subsequently, and still at the same mee ting, Japan will be asked to present its point of 
view.  Third parties will be asked to present their views thereafter at a sep arate session of the same 
meeting set aside for that purpose.  The parties will then be allowed an opportunity for final 
statements, with the United States presenting its statement first. 
7. The Panel may at any time put questions to the parties and to the third parties and ask them 
for explanations either in the course of the substa ntive meeting or in writing.  Answers to questions 
shall be submitted in writing by the date specified by the Panel. 
8. In the interest of full transparency, the oral pres entations shall be made in the presence of the 
parties.  Moreover, each party's written submissions, including answers to questions put by the Panel, 
shall be made available to the other party.  Third pa rties shall receive copies of the parties' first written 
submissions and rebuttals.  Parties shall submit a ll factual evidence to the Panel as early as possible 
and no later than during the substantive meeting,  except with respect to  evidence necessary for 
purposes of rebuttals or answers to questions.  Ex ceptions will be grante d upon a showing of good 
cause.  In such cases, the other party shall be acco rded a period of time for comment, as appropriate. 
9. Within fifteen (15) days following the hearing w ith the Panel, each of the parties and third 
parties is invited to provide the Panel with an  executive summary of the factual and arguments WT/DS245/RW 
Page 132  
 
 sections contained in their written submissions a nd oral presentations, as applicable  These executive 
summaries will be used only for the purpose of assisting the Panel in  drafting a concise factual and 
arguments section of the Panel report so as to facilita te timely translation and circulation of the Panel 
report to the Members.  They shall not serve in any way as a substitute for the submissions of the 
parties.  The summary to be provided by each pa rty should not exceed 25 pages in length and shall 
summarize in separate sections the content of thei r first written submission, their rebuttal submission 
and their oral presentation.  The summary to be provided by each third party shall summarize in 
separate sections their written and oral submissions , as applicable, and should not exceed 3 pages in 
length. The Panel may, in light of further developm ents, allow the parties and third parties to submit 
longer summaries.  
10. To facilitate the maintenance of the record of  the dispute, and to maximize the clarity of 
submissions, in particular the refe rences to exhibits submitted by pa rties, parties shall sequentially 
number their exhibits throughout the course of the di spute.  For example, exhibits submitted by the 
United States could be numbered US-1, US-2, etc.  If the last exhibit in connection with the first 
submission was numbered US-5, the first exhibit of the next submission thus would be numbered US-
6. 
11. Following the issuance of the interim report, the parties shall have two weeks to submit 
written requests to review precise aspects of the in terim report.  Following receipt of any written 
requests for review, each party shall have one w eek to submit written comments on the other party's 
written request for review.  Such comments shall be strictly limited to commenting on the other 
party's written request for review. 
12. The parties and third parties to this proceeding have the right to determine the composition of 
their own delegations.  Delegations may include, as  representatives of the government concerned, 
private counsel and advisers.  The parties and third parties shall have responsibility for all members of 
their delegations and shall ensure that all member s of their delegations, as well as any other advisors 
consulted by a party or third pa rty, act in accordance with the ru les of the DSU and the working 
procedures of this Panel, particularly in regard to confidentiality of the proceedings.  Parties shall 
provide a list of the participants of their delegation before or at the beginning of any meeting with the 
Panel. 
13. Any request for a preliminary ruling (including rulings on jurisdictional issues) to be made by 
the Panel shall be submitted no later than in a pa rty's first written submission.  If the United States 
requests any such ruling, Japan shall submit its response to such a request in its first written 
submission.  If Japan requests any such ruling, the United States shall submit its response to such a 
request in its rebuttal submission.  Exceptions to  this procedure will be granted upon a showing of 
good cause. 
14. The following procedures regarding service of documents shall apply: 
(a) Each party shall serve its submissions directly on the other party.  Each party shall, in 
addition, serve its first written submission an d rebuttals on third parties.  Each third 
party shall serve its submissions on the parti es and other third parties.  Each party and 
third party shall confirm in writing, at the time it provides the submission to the Secretariat, that copies have been served as required. 
(b) The parties and the third parties should provide their written submissions by 5:00 
p.m. on the due dates established by the Panel, so that there is still time for 
distribution to the Panel on that date.  WT/DS245/RW 
 Page 133 
 
 
 (c) (The parties and the third parties shall provi de the Secretariat with 8 paper copies of 
their written submissions as well as an "electronic" copy of the submissions on a diskette or as an e-mail attachment, if possible in a format compatible with the 
Secretariat's software. Paper copies shall be delivered to the Dispute Settlement 
Registrar, Mr. Ferdinand Ferranco (Room 3154).  Electronic copies may be sent by e-
mail to Mr. Ferranco, Ms Serra Ayral, Ms Gretchen Stanton, Ms Kerry Allbeury and 
Mr. Yves Renouf.  
(d) Parties and third parties shall provide the S ecretariat with written copies of their oral 
statements no later than close of busin ess on the day following the date of the 
presentation.  Written replies to questions sh all be submitted at the date decided by 
the Panel. 
15. These working procedures may be modified by the Panel as appropriate, after having 
consulted the parties. 
 WT/DS245/RW 
Page 134  
 
 ANNEX 2 
 
ABBREVIATIONS USED FOR DISPUTE SETTLEMENT CASES  
REFERRED TO IN THE 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 
Australia – Salmon  Panel Report, Australia – Measures Affecting Importation of Salmon , WT/DS18/R and 
Corr.1, adopted 6 November 1998, as modified by the Appellate Body Report, 
WT/DS18/AB/R, DSR 1998:VIII, 3407 
Australia – Salmon (Article 21.5 – Canada)
  Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to 
Article 21.5 of the DSU by Canada , WT/DS18/RW, adopted 20 March 2000, 
DSR 2000:IV, 2031 
Canada – Aircraft 
(Article 21.5 – Brazil)  Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft – 
Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW, adopted 
4 August 2000, DSR 2000:IX, 4299 
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 – 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 
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , WT/DS146/R, 
WT/DS175/R and Corr.1, adopted 5 April 2002 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, 9 
Japan – Agricultural 
Products II  Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Apples  Appellate Body Report, Japan - Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003 
Japan – Apples  Panel Report, Japan – Measures Affecting the Importation of Apples , WT/DS245/R, 
adopted 10 December 2003, as upheld by the Appellate Body Report, 
WT/DS245/AB/R  
Japan – Leather II (US) GATT Panel Report, Panel on Japanese Measures on Imports of Leather , adopted 
15 May 1984, BISD 31S/94 
Mexico – Corn Syrup (Article 21.5 – US)
  Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU  by the 
United States , WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6675 
US – Lead and 
Bismuth II  Appellate Body Report, United States – Imposition of Countervailing Duties on 
Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom , WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2595 
US – Shrimp 
(Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain Shrimp and 
Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481 
US – Section 301 Trade 
Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974 , 
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815 
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, 323 
  WT/DS245/RW 
 Page 135 
 
 
 ANNEX 3 
 
TRANSCRIPT FROM PANEL MEETING WITH EXPERTS 
OF 12 JANUARY 2005 
  
Chair  
1. I would like to begin by welcoming the parti es and the panel's expert advisers, Doctors 
Geider, Hale, Hayward and Smith to this meeti ng of the Panel on Japan – Measures Affecting the 
Importation of Apples, Recourse to Article 21.5. 
2. The Panel has agreed to the Japanese delegation' s request for them to provide continuous and 
consecutive modes of translation between Japanese and English, and may I request that Japan confirm 
that all the necessary arrangement s are in place?  Thank you.  
3. Let me begin by introducing the Members of the Panel:  Dr Kathy-Ann Brown,  Mr Christian 
Haeberli and myself, Michael Cartland, who will be acting as Chair of the Panel.  I recall that the proceedings of this meeting are being recorded; therefore, when taking the floor, representatives are asked to use their microphones.  It is not only for the recording but also for the translation. 
4. I would like now to invite each of our expe rts to introduce themselves, beginning with 
Dr Geider. 
Dr Geider 
5. I am Professor of molecular genetics and phytopathology at the University of Heidelberg in 
Germany.  One thing which has changed after the last meeting two years ago is that I am now located at the BBA, which is the Federal Biological Research Organization, near Heidelberg too.  It is not 
actually the same place.  The BBA is dedicated to more applied science and they do research on fire blight.  They have an experimental orchard wher e they can do assays with the pathogen and they have 
S2 or L2 equipment, greenhouse facilities.  It is  a good environment for applied molecular science 
also connected to fire blight.  One thing I may mention too, which is a little bit personal, is that I am also a good friend of Cal Kado at the University of Davis and I got involved in the Lux Reporter 
System twenty years ago.  I was probably one of the first people who got these plasmids and I have 
been working with these genes for qu ite a bit of time. Later on in the meeting I may come back to that 
position that I am quite familiar with this signalling sy stem used in many bacteria and also in other 
systems like micro organisms, or in plants. 
Dr Hale 
6. I have recently retired over the last eighteen mont hs since we last had our meeting, and I am 
now a Consultant, specializing in plant protection.  I am an Honorary Research Fellow of the   Horticulture & Food Research Institute  of New Zealand, which means that  I still have an office in the 
Research Institute and still involved in some of the day-to-day laboratory work which is going on 
there.  I am a Fellow of the New Zealand Society fo r Horticulture Science and now the Vice-Chair of 
the Plant Protection Commission of the International Society for Horticultural Science.  Instead of 
being a practising scientist now, I wo rk more in the consulting area. 
Dr Hayward 
7. I am a retired academic from the University of Qu eensland in Australia.  I retired in July 1997 
and then I set myself up as a consultant on bacteria l plant diseases.  The only other current work I 
have is in relation to the application by the Philippi nes to export bananas to Australia, and that is the 
same situation as it was two years ago.   WT/DS245/RW 
Page 136  
 
 Dr Smith 
8. I am a plant pathologist, Ian Smith, but for the last twenty-five years I have been working for 
the European and Mediterranean Plant Protection Organization, which is a European organization 
concerned with plant quarantine and with the development of recommendations on technically 
justified phytosanitary measures for the European c ountries, and the pest risk analysis, which is done 
in support of this.  Although, I am familiar with the fire blight disease, my expertise lies rather more 
in the more general area of phytosanitary measures. 
Chair 
9. Turning now to the presentation of delegati ons, perhaps I could invite the Heads of 
Delegations to introduce themselves and the other Me mbers of their delegations.  If you have not yet 
done so, but I see that you have, please submit a lis t of your delegation's members to the Panel 
secretary.  I think that has already been taken car e of.  Perhaps I can begin with the United States. 
United States 
10. Good afternoon Mr. Chairman, members of the Panel.  My name is Jay Taylor, and I am an 
Assistant General Council with the Office of the Un ited States Trade Representative.  I was not so 
bold last time, but I will do my best to introduce my delegation to you today. 
Stephen Kho, from the US Mission, here in Geneva. 
Dr. Rodney Roberts, Research Plant Pathologi st from Wenatchee, Washington, USDA/ARS. 
Dr. Jay Norelli, Research Plant Pathologist fro m Kearneysville, West Virginia, USDA/ARS. 
Richard White, Director of Sanitary and Phyto sanitary Issues for the US Trade Representative's 
Office. 
Doreen Chen-Moulec, at the Japan and Vietnam Desk for the Foreign Agricultural Service in 
Washington DC. 
Mary Revelt from the US Mission here in  Geneva. George York, who is also with the US Mission here in Geneva. Lottie Erikson, who is with the Animal and Plant Health Inspection Service. Dr. Kenneth Vick, Senior Program Leader, Post Ha rvest Entomology, with the Agricultural Research 
Service, USDA. 
Japan  
11. Thank you Mr. Chairman and members of the Pa nel.  My name is Toyoharu Fukuda.  I am 
Director of Plant Protection Division, Food Safe ty and Consumer Affairs Bureau, Ministry of 
Agriculture, Forestry and Fisheries.  Now I woul d ask each of the Japanese delegation to introduce 
himself. 
Good afternoon.  Masaru Kitamura, Legal Advisor to the Ministry of Agriculture.  
Masao Goto, Plant Pathologist. 
Akira Uchida.  I am Deputy Director of the WTO Dispute Settlement Division, Ministry of Foreign 
Affairs.  WT/DS245/RW 
 Page 137 
 
 
  
Akihito Furuta, International Economic Affairs Division, MAFF. 
Junichi Taniuchi, Deputy Director of Plant Protec tion Division, Food Safety  and Consumer Affairs 
Bureau, Ministry of Agriculture.  
Keiichi Higuchi.  I am with the Japanese Mission here in Geneva. 
Akifumi Mizuno, Ministry of Agriculture in Tokyo.  
Chair  
12. Thank you very much.  As a preliminary matter, I wish to recall that at its meeting of 30 July 
2004, the Dispute Settlement Body d ecided, in accordance with Article 21.5 of the Dispute Settlement 
Understanding, to refer to the original Panel th e matter raised by the United States in document 
WT/DS245/11.  I further recall that the Panel held a first substantive meeting with the parties on 28 
October 2004. 
13. In the light of the arguments submitted by the parties, the Panel decided to seek technical and 
scientific advice from experts in this compliance case, focusing on questions relating to relevant scientific developments since the original case and on Japan's new risk assessment.  The Panel invited 
the same experts who participated in the first  panel, Doctors Geider, Hale, Hayward and Smith, to 
serve as scientific experts in this compliance pane l.  The working procedures were communicated to 
the experts on 16 November 2004.   
14. In accordance with those working procedures, and after comments by the Parties, the Panel 
communicated questions to the parties.  The e xperts were requested to reply in writing by 
15 December 2004 and these replies were communicated to the parties and comments received from the parties on the expert replies were circulated to the experts.  
15. The purpose of today's meeting is for the expert s to meet with the Panel and the parties to 
discuss their written responses to the questions and to  provide further information.  Today's meeting 
will proceed in the following manner:  first, I would like to request the experts to make introductory 
or general remarks.  I will then open the floor for th e parties, followed by the Panel, to ask questions.  
The experts may wish, in particular, to address any point where they believe further clarification is 
needed in the light of the parties' comments on an  earlier response to a question, and finally, I will 
invite experts to make closing remarks.  
16. I would like to remind the parties that the mee tings of WTO panels are tape-recorded.  The 
tapes are part of the record of this Panel.  So  please be sure to use th e microphones when addressing 
the Panel. 
17. In addition, parties will recall the requirement s relating to confiden tiality provided for in 
Article 18 of the DSU. 
18. Unless there are any comments or questions, we  can now proceed to hear the experts' 
introductory remarks.   
United States  
19. Excuse me Mr. Chairman, the United States would like to make a brief comment.  We were 
concerned upon reading Japan's comments on the experts that it hoped to provide yet another scientific study or set of results in the context of th is meeting with the experts.  In light of Japan's 
request, the United States seeks confirmation from th e Panel of its statement in its 16 November WT/DS245/RW 
Page 138  
 
 letter, in which it restated the text of paragraph 8 of the Working Procedures, setting the time limit on 
a party's ability to present new evidence absent a fi nding of good cause by the Panel, and further 
stating that:  "The Panel considers it of particul ar importance that any evidence which the parties 
intend to submit during this proceeding, be made av ailable to the scientific experts at the time they 
received the questions from the Panel, i.e. 25 November 2004."  Thank you. 
Chair  
20. Does Japan have any comment on that statement? 
Japan  
21. No, we are not going to submit any evidence per se  at this time. 
Chair  
22. Thank you very much.  I think that answers the point.  Are there any other comments or 
questions at this stage?  Mr. Kho. 
Mr. Kho  
23. Some of us were talking earlier today and we  were wondering how the process of the experts 
would go. We know that last time you went alpha betical order as you just did now and requesting the 
experts to introduce themselves and poor Dr. Geider ha d unfortunately to go first all the time and for 
those of us who were here last time we thought maybe we could sp ice things up a little and maybe go 
reverse alphabetical order, or however you c hoose.  Just a suggestion.  Thank you. 
Chair  
24. That's fine by me if that is alright with th e experts.  We will do it in reverse alphabetical 
order.  If that is all at this stage, I will now invi te the experts, in particular, to comment on any point 
raised by the parties responses to the experts' writte n replies to questions, and in the context at the 
same time to make whatever introductory remarks they wish to make.  I suggest we hear from the 
experts in reverse alphabetical order, starting with Dr. Smith. 
Dr. Smith  
25. Thank you Mr. Chairman.  I would like to make a general comment, which is that what we 
have been asked to do as experts has proved for me rather difficult.  We are asked to consider new 
evidence, which was submitted to us in the form of  short papers which contain significant results, 
which suggest that maybe if more research were done  more substantial results could be obtained that 
might open some new areas of fire blight research.  But the possibilities for generating this new 
information, are limited in the short time span in which this whole operation takes place.  The 
question has been asked:  'Are these scientific pa pers that we read published?"  I feel in the 
circumstances those questions are hardly relevant.  There has not really been time for the information 
to reach the stage of publication and of a ppearance in a refereed scientific journal. 
26. And secondly, I would say that these papers, which are trying to address all the specific 
questions connected with the dispute, are not suit able for publication in scientific journals, and 
possibly would not be accepted for publication in journals  simply for that reason.  So that the criterion 
of the refereed article is a difficult one to apply in the circumstances.  We, as experts, have almost 
been asked to do our own refereeing process, indeed I think probably all of us have been referees for 
articles in journals, in time to judge what reliance we  can give to the results as reported.  This is an 
important general issue, because in plant protecti on there is a large body of scientific evidence on the 
biology of plant pests and on the economic importance of plant pests.  But when we come to information such as whether certain pathways for en try of pests are likely pathways on the one hand,  WT/DS245/RW 
 Page 139 
 
 
 and on the other hand, whether certa in measures taken are likely or not likely to be effective or how 
likely they are to be effective, we are significantl y lacking published information.  The only way this 
information can be obtained is for new research to be  done.  There is no doubt that the criterion, if it 
was strictly applied, that scientific information s hould come from a refereed scientific source is not a 
practical one in the circumstances.  I don't believe it is strictly applied.  I think that the information 
which has been provided to us for consideration, subject to the limitations that it has because it has 
been done rapidly and recently, does need to be ta ken seriously into consideration.  Thank you. 
Dr. Hayward  
27. Mr. Chairman, I would like to make two comments .  The first one is a minor correction in my 
answer to question 1.  I did look at the website of  the Journal of General Plant Pathology, published 
by Springer, Tokyo, and the associ ate editors are nineteen in number and twelve of them are from 
Japan.  There are seven non-Japanese and I omitted to include the one from Italy.  There are two from 
Korea, one from Thailand, three from the United States and one from Italy.  So that is a minor 
correction, but I apologise for the error, because I don' t think errors should be allowed to get through, 
no matter how minor. 
28. My other comments concern the questions regard ing "Potential pathways for transmission of 
fire blight via apple fruit" (Questions 19 to 24).  Over the past four years I have been very much 
concerned with a completion of the pathway from an imported commodity - tropical fruit, or 
temperate fruit like apple or pear - the potential fo r transmission from the imported fruit to a healthy 
host, whether an ornamental host or an economic hos t like apple, in the case of fire blight.  I have 
been giving a lot of thought to this question, and I must make the general comment that there is a 
remarkable lack of evidence.  Prior to the SPS Ag reement, very few people had done experiments in 
pathology orchards or any kind of field environment that looked at the possibility of transmission, in 
other words, the possibility of initiating an infection.  Plant pathologists are concerned with preventing 
epidemics from beginning.  So it is not surprising this  sort of question, which is now demanded, of the 
pest risk process after the SPS Agreement, has not been  addressed very often.  In fact there are very, 
very few studies, and of course the one study that is  relevant in this case is Taylor and Hale and their 
associates in New Zealand, who have looked at the orchard environment and the potential for spread 
from artificially infested apple fruit.  There is a gap there, so we are forced to the historical record. 
Briefly, Mr. Chairman, if I may, I would like to br ing up the question of citrus canker.  There is a 
message here which is of interest in this context.   In Australia we are surrounded by countries like 
Indonesia, Papua New Guinea, Fiji, many countries wh ich have citrus canker.  Australia has detected 
outbreaks and eradicated outbreaks since about 1912.   There have been about six of these outbreaks 
and there is a current outbreak in a production area.  The point of my comments is that all of these 
outbreaks as far as we can determine, have been  brought about by the introduction of planting 
material. 
29. Now, two years ago at a conference in Canberra, the Executive Director of the Citrus Growers 
of Australia, said that over the past three years in Australia, more than 300 interceptions of infested 
leaves and of individual fruit had been made at ports of entry into Australia.1  More than 300 of these, 
and no less than 10 per cent had been determined as havi ng citrus canker.  So the point is that we can 
guarantee that with sniffer dogs a nd the improved precision, which we have today at ports of entry 
(citrus canker specimens mostly picked up at airports),  we can assume that this is very close to 100 
per cent. But you cannot assume that that was the case ten years ago, or twenty years ago or thirty years ago.  With the large volume of traffic comi ng in, some must have dribbled through into the 
urban environment.  Infested fruit or leaves must have  come in at some stage, how much we cannot be 
sure, but at least there is no outbreak of citrus canke r in Australia which is referable to the importation 
                                                     
 
1 Damiani, J. p.69 In: Conference Proceedings Quarantine and Market Access Conference 2003, 
Canberra, ACT, Australian Government, Department of Agriculture, Fisheries and Forestry WT/DS245/RW 
Page 140  
 
 of such material that is coming illegally and which h as not been intercepted at the airport.  Thank you 
Mr. Chairman. 
Dr. Hale 
30. Thank you Mr. Chairman.  I have looked at this in perhaps a slightly different way.  What I 
want to do is to really summarize briefly my view s on where we are at on this whole topic.  First I 
want to state that I realize that the new studies co mmissioned by Japan have been carried out within a 
very restricted timeframe.  However, I still find it surprising that the new PRA is based on this new 
evidence, that in the main is s till in the process of being publishe d.  I find the extremely artificial 
conditions under which most of the new work was completed bear very little relationship to the 
natural conditions likely to be associated with co mmercial apple production and export.  I realize the 
constraints of carrying out research on E. amylovora  in countries without fire blight.  However, I think 
it would have been – this is as a general comment I think, that it would have been useful perhaps to 
have arranged for some collaborative research to go on in countries where the disease is endemic, and 
where the natural conditions could, in fact, prevail.   
31. I find that much of the new evidence under discussion is from work carried out under 
artificial conditions and this is a difficult thing for me to get my head around, but we do need to bear in mind that there is still no evidence of latently  infected mature symptomless fruit, and the new 
evidence that we have had in front of us does not really support this under natural conditions.  I think 
we perhaps would also need to go back and say to date there is no proven evidence of exported apples 
ever being implicated in fire blight outbreaks,  although there has been an enormous amount of 
movement of apples around the world. 
32. Just to move on a little bit to buffer zones, or border zones, as we seem to be calling them 
now.  These have been shown by Roberts to provide  no phytosanitary protection.  They may however, 
possibly be used to designate an export area, if th is is required.  However, there is no evidence 
whatsoever of E. amylovora  being disseminated by a mature, symptomless fruit, and if this is the case, 
then buffer zones are not really justified.  Any or chard inspection procedures, if deemed necessary, I 
think would need to be developed between the parties concerned.  There is no hard and fast rule as to 
how this could, in fact, be done. 
33. Just to say a word about severely blighted or chards.  By whatever definition, I think a 
severely blighted orchard would need very little in spection, unless a severely blighted orchard was 
defined as one which had any inf ection at all.  Small numbers of these orchards could possibly 
harbour the bacterium in the calyxes of the fruit.  We  have evidence of this, but there is no evidence 
of dissemination from discarded fruit to susceptible hosts under natural conditions. 
34. There is no evidence that postharvest treatment of fruit, other than that required for codling 
moth, and normal storage and shipping is really nece ssary in this disease situation.  The evidence of 
survival presented by Japan is under conditions th at do not really simulate normal procedures for 
commercial production storage and export of appl e fruit.  As far as potential pathways for 
transmission of the bacterium via apple fruit, again the experimental conditions imposed in the work 
that we have been looking at are completely artificial and are really not plausibly ecological 
conditions.  This has come through from each of the experts.  Conclusions drawn that contaminated 
flies, for example, could cause infection under na tural conditions are not necessarily substantiated by 
the data presented.  The probability estimates pr esented rely heavily on assumptions that latently 
infected, mature, symptomless apple fruit actually exist and the pathway can be completed and to date, neither is proven under natural conditions. 
35. As far as the pest risk assessment is concerne d, once again the new PRA relies very heavily 
on the as yet unsubstantiated assumption relating to la tent infection and completion of a pathway.   WT/DS245/RW 
 Page 141 
 
 
 There is no evidence in my mind that mature sympto mless apple fruit have ever been implicated in the 
introduction, establishment and spread of fire blight, despite the fact that millions of tonnes of apples 
have been shipped worldwide for many years.   
36. So that is a brief summary of the respon ses that I made.  Thank you Mr. Chairman. 
Dr. Geider  
37. Thank you Mr. Chairman.  Maybe I have to make a general remark about fire blight.  Looking 
back to the history there are only a very few events th at were really long-distance spread of fire blight:  
the first one in New Zealand and the next one w as in England and the next one was soon after in 
Egypt, and I may recall recent one in Australia, even if it's gone, although fire blight spread into a 
remote area.  So, I think from these data we ca nnot trace back events which occurred at that time, 
although we can make suggestions. When I talk to my colleagues from New Zealand, they would say:  
In the old times there was free trade of many plants  and that included fire blight host plants, and it 
happened'.  With England its still a little bit a matter of discussion which comes up from Eve Billling 
who is saying, I feel, that there was something wrong with fruit boxes.  I am not sure that she has seen 
these events and there was a documentation about that. I think this opinion recently came up and it was also published in one issue of "Acta Horticultur ae", in a way that there are speculations how fire 
blight could have come to Engl and.  Although there might be ma ny other sources and many other 
possibilities and I would still say that since the strain s in England are a little bit diverse, there could 
have been two or three induction events. 
38. The one in Egypt is open.  Nobody is discussing that, maybe it is not so in the trade politics.  
It is there and it was there for a long time.  Slowly it moved to Israel and Turkey and now it is in the 
Balkans, Iran.  It's still moving.  It is one wave. We think, at least from our data, that is PFGE 
analysis, that this event was also unique.  
39. The fourth one in Australia I have discussed many, many times.  Some people were asked by 
the press and by TV reporters how did it come that fi re blight arrived in Australia.  I said there is no 
real hint how it could happen, although, and this wa s actually one of the first statements I heard from 
Peter Merriman, the Botanical Gardens in Melbourne  are visited by 1.5 million visitors per year, 
which is a big impact to introduce something.  They are doing strange things.  One colleague was 
saying they are taking samples with knives which coul d be contaminated with something.  There are 
housing areas which grow a lot of fire blight host plants  and this is still the big risk:  that fire blight is 
introduced by those private activities into areas which can be damaged by the disease. 
40. This is just a summary of a very basic problem we are faced with.  Therefore I personally 
refuse a little bit to do risk assessment studies or to read them and say this is something meaningful, 
when we limit apple exports or imports to a certain amount then the risk is zero and then it is a bit 
higher.  We can never say how fire blight comes in to a country and it can happen all the time or it can 
still wait for many years but the chances are incr easing because all global activities are getting faster 
and more intensive.  I think, this is a very ge neral judgement, that you cannot completely protect a 
country from all these events.  I am always impressed when I come to Australia  that I'm really wiped 
out of all my vegetables and fruit and whatever I might have.  You can do that but there are boats 
coming to the shores and they will have something.  I think it is very difficult to get to a conclusion 
about how to keep a disease like fire blight out of a country.  But anyhow, I think we have to face the 
problems there is no fire blight in Australia, there is no fire blight in Japan and there is no fire blight, 
officially at least, in other countries. 
41. Now, one remark to the three papers, or four papers issued as the Progress in fire blight 
research.  I think, since I am also a little bit involved in researching what is E. amylovora  doing in 
apples, that I have to say basically there is not hing wrong in these two papers. When you inoculate WT/DS245/RW 
Page 142  
 
 apples with E .amylovora  we will find the pathogen.  It will persist.  It will even increase little bit 
depending on the storage conditions or it will just persis t for as long as the apple is suited for storage.  
So, this is trivial.  You can bring a pathogen to ot her surfaces like plastic bags, or paper or wood or 
something else - even to metal – it will persist for so me time.  Sometimes for a very long time.  On 
this basis the papers are not wrong.  But as I expres sed in my statements, they also do not say very 
much about distribution of fire blight.  The last paper, which is about the spread of fire blight by flies, 
is also not completely wrong.  In this respect fi re blight is actually initiated every spring by ooze 
coming out of infected trees.  This ooze is picked  up or insects are feeding on the ooze and then they 
visit flowers.  I think we should be honest.  This is the way fire blight is initiated in an orchard with 
fire blight.  Otherwise I think no flowers will surv ive in the winter but the pathogen survives in the 
stem sections and the stem sections are oozing.  As far as I recall there was an older, not well 
documented, but still somehow publis hed experiment of Tom Van der Zwet saying:  "When I remove 
all the cankers and I protect the whole tree agains t visiting insects then it will not develop any fire 
blight."  So, I agree with this statement, but I also  have to admit that ooze is the primary source to get 
fire blight into the trees in spring.  In this resp ect the paper is not wrong.  But it is wrong in this 
assumption that everything that looks like ooze on fruit is now a source to bring fire blight to other 
places.  There is no evidence that this can happen.  Although, and this is my scientific task, I cannot 
completely reject and deny that it can for all reas ons never happen, the chances are close to zero.  But 
what is zero mathematically?  It is a difficult num ber.  Of course I could also comment a little bit on 
the papers what they did and what are the pictures and the results.  Maybe at a later stage I will come 
back to this point.  Thank you. 
Chair  
42. Thank you Dr. Geider.  I wonder if, before I go on,  if I could just go back to Dr. Hayward.  
We heard Dr. Geider refer just now to an outbreak  in Melbourne, Australia.  I wonder if you had any 
more information about that that might be relevant to this case? 
Dr. Hayward  
43. Well I wouldn't call it an outbreak, Mr. Chairman.  It was a single plant of Cotoneaster, as I 
understand it.  There was no spread from that point s ource.  Because it was in that category of there 
having been no spread from point source, it has to be ca tegorized as an incursion, I think, isn't it?  If 
you have no spread, it's an incursion.  I have no more  information.  We have  the published record, and 
that is it. 
Chair  
44. There was no information about how it got there, or where it came from? 
Dr. Hayward  
45. No, I think Dr. Geider has made a number of s uggestions which are quite reasonable.  He had 
1.5 million people visiting the Melbourne Botanic Gard ens.  Human nature being what it is, various 
things might have happened.  It is all hypothetical and speculative. 
Chair  
46. Thank you very much.  Thank you to all the expert s for their pertinent remarks.  At this stage 
I would now like to ask the parties to pose questions to the experts.  I propose that the parties begin 
the opportunity to do so in alternate order, starting with the applicant, the United States.  The United 
States, you have the floor.  WT/DS245/RW 
 Page 143 
 
 
 United States  
47. Thank you Mr. Chairman.  The United States thanks the experts for the care they have taken 
in responding to the Panel's questions, and in pa rticular their efforts to respond to the Panel's 
questions in terms of the scientific evidence as it re lates to apple fruit and fire blight.  The experts' 
role in advising the Panel on the scientific evidence is an important component to an SPS proceeding.  
In light of the experts' role as advisers on the scientific evidence, the United States has only a few 
confirmatory questions, one of which we will ask now in light of the Chairman's suggestion of 
alternating questions, but both of wh ich I believe can be answered with  little more than a yes or a no 
response.   
48. The United States' first question to each of the experts is:  Does the scientific evidence 
relating to apple fruit and fire blight demonstrate that such a commodity as a mature, symptomless yet 
latently infected apple fruit exists? 
Dr.  Smith  
49. Well, Mr. Chairman, first of all I would say that I don't see how one can regard this as a 
commodity.  I think this is a misuse of language.  Apples are traded, or mature apples are traded, but 
latently infected apples are only unintentionally tr aded.  The purpose is to find measures to prevent 
this infection from happening if it is capable of doing so.  But I think I can answer the implied 
question that there is at the moment no evidence th at latent infections can be found in mature apple 
fruits.  But it is not a subject which has been ve ry much investigated.  There are possibilities for 
investigating it further, and I would hesitate to say that this cannot happen.  The paper which has been 
labelled as Azegami II, which shows that bacteria can apparently be recovered from fruits where the 
pedicel of the fruit was inoculated, or the twig was inoculated with bacteria, at some time earlier, 
seems to show that in that experiment you can obtain latent infection of an apple fruit.  But this work 
is very preliminary.  As the American comment say s, there are various controls that perhaps should 
have been done to make certain that that result is valid. Nevertheless that result is put before the 
Panel.   
50. So at an experimental level there are suggesti ons.  There are a few suggestions from the past.  
There is no convincing evidence that this happens naturally, but there is information that suggests 
there is still a phenomenon to be investigated. 
Chair  
51. Thank you very much Dr. Smith. 
Dr. Hayward  
52. Mr. Chairman, I have no evidence that there is such an entity as a mature symptomless 
latently infected fruit.  There are several papers which fail to detect E .amylovora  in mature 
symptomless fruit.  I guess that is all I would say , except that you could hypothesise that there was a 
latent infection which was below the level of detection by the earlier method.  But I think that is a bit 
doubtful. 
Chairman  
53. Thank you.  Dr Hale. 
Dr. Hale  
54. Thank you.  I would just like to say that I ag ree with what Dr. Hayward has just said.  I 
probably have to agree with what Dr. Smith says as well, because when you are dealing with 
biological entities and so on, it is very difficult for us to categorically say that it couldn't possibly WT/DS245/RW 
Page 144  
 
 happen.  All I can say is that at this stage there is no evidence.  No, I don't see any scientific evidence 
that this is happening under natural conditions. 
Chairman  
55. Thank you very much.  Dr. Geider. 
Dr. Geider  
56. Of course there are two ways to look at an apple.   One is the apple which is mature and looks 
healthy.  It is very difficult to find in those apples E. amylovora.  That means that you have to assay 
tons of apples to make a big survey to find out if  this can really happen or it cannot happen.  I think 
there are enough data from New Zealand that in ce rtain circumstances that apple can carry some 
E. amylovora  cells in the calyx.  This was supported and discussed a couple of times.  So I think this 
is about the present situation and that an apple is inte rnally infected and is healthy. To my opinion, it 
is very unlikely but it would take a lot of effort at least to disprove that and it is quite normal. So, I 
think my answer is no.  You can also ask about a pples which do not look healthy any more after some 
time.  They may be locally rotten or totally rotten.  My big concern on those apples is what do they 
say for fire blight?  It's a very difficult situa tion in terms of microbiology.  These apples usually are 
also infected with soft rot erwinias and with other things which just cause the rotten appearance.  It's 
now a task which nobody will easily do because it is a big effort to dissect those apples in terms of 
taxonomy, finding out what is causing the rot, what is causing other events and even what is causing 
oozing.  When ooze is coming out of a fruit it might not  be always fire blight.  When I look into one 
of these three or four recent Japanese papers, there are reports that these apples were not oozing, but 
they had some droplets of liquid at the outside.  Then they tried to isolate E. amylovora  out of these 
droplets, but in many cases they failed.  I think th ere were 146 droplets and in eleven of them they 
could detect E. amylovora .  So these droplets were not the typical fire blight ooze.  They were 
something else.  This means even ooze is not in terms of E. amylovora  bacterial ooze, just caused by 
the pathogen.  We have to be ve ry cautious on all these events to make a statement.  Is this a pure 
occurrence of fire blight or is it a mixed infection?  Is an apple rotten due to fire blight or by other 
events.  The last time the Japanese delegation ha d these intimate pictures from Canadian apples which 
were also oozing some how on the trees.  I felt this is complex.  It is not just fire blight.  It is more.  I might join the investigations to have a look at wh at is an apple which is appearing rotten and was 
infected, or at least challenged, with E. amylovora.  There is still a lot to do to find out what is going 
on in such apples, but it's certainly not as clear as  it is suggested by the Japanese investigations.  
Thank you. 
Chair  
57. United States.  I may have used an ambiguous term when I suggested that we took it in 
alternate orders.  What I meant was that we take a ll the US questions first and then all the Japanese 
questions.  I hope that's how it came... 
United States  
58. The next question for the experts is:  Does the available scientific evid ence relating to mature 
apple fruit and fire blight demonstrate that mature  apple fruit will serve as, or complete, the pathway 
for transmission or introduction of fire blight? 
Dr. Smith  
59. Well, Mr. Chairman, a pathway has to be comple ted from the very beginning to the very end 
to be effective.  Evidence is lacking at the moment  for the end of the pathway.  There is not clear 
evidence that even if a latently inf ected apple were to arrive in Japan, that there is a real possibility of 
transmission to susceptible apple trees.    WT/DS245/RW 
 Page 145 
 
 
 Dr. Hayward  
60. If I may go back to what I said at the beginning .  My comments about citrus canker aren't 
totally irrelevant because citrus canker is an exampl e of a disease which most manifestly is carried on 
the fruit.  The fruit are heavily infested, in fact that 's how they are identified, from the surface lesions 
on the fruit, after interception at ports of entry. 
61. With regard to fire blight, I can find no evidence at all.  I am not convinced by the work that 
has been reported from Japan that they have demons trated completion of the pathway.  This evidence 
is lacking.  We have one good study by Ta ylor and Hale (published in the periodical Crop 
Protection ).  Actually it is two papers reporting the first season's results and a second paper, on plant 
protection, reporting the second season's results.  I do think that this is only one study.  It is possible to conceive others which could address the same question.  (As I said in my first remarks, these questions have not been studied scientifically.  They  are the kinds of questions which were forced on 
plant pathologists by pest risk analysis in the post- 1995 era, and that is a relatively short period).  I 
have called it a model study, and I think it is.  I th ink it can be criticized for various reasons, but it was 
a good attempt.  There are other studies that could be considered, but they wouldn't necessary involve 
apple.  They would probably involve pear.  They would probably involve ornamentals.  The literature 
just is completely lacking in evidence about the completion of pathways.   
Dr. Hale  
62. I suppose I should defend myself.  What Dr. Ha yward said is absolutely correct.  There is 
very little evidence.  In our work which we published in 1996, we were unable to show that there was 
any completion of a pathway and certainly when we looked at this in a lot more detail, looking at 
insects and so on, and other possible ways of tr ansmitting the disease in the most recent papers.  
Again, we were unable to show that there was an y transmission from the calyx end of an infested 
fruit 
an infected fruit, or a latently infected fruit, if th ere is such a thing, because we never looked at that.  
We only looked at the possibility of transmissi on of the bacterium from the calyx end of fruit, 
infestation as opposed to infection of the fruit.  I th ink probably I can leave it at that.  So I have no 
scientific evidence of this happening.  I guess, as fa r as the people in the room are concerned here, and 
the experts, I am probably the one that has been most closely associated with some of this work 
actually in the field.  There is not a lot of eviden ce, it is purely the evidence that we have come up 
with.  Of course it is always difficult to prove a negative.  The fact that we didn't find any transmission doesn't mean to say that it couldn't possibly have happened, but we didn't get any 
transmission to susceptible hosts. 
Dr. Geider  
63. I think to answer that question, I agree with my colleagues that it is very difficult because to 
design the experiment to find out is not only tediou s but a little bit experimentally difficult.  Nobody 
will easily do it, but it can be done.  I think we c ould do that experiment probably in America, not in 
Japan.  In America it could be done in an experiment al orchard.  We could inoculate apples with fire 
blight, maybe with a strain which has some feat ures, not necessarily genetic, which can be traced 
back.  Then we can find out if bacteria of this strain  go into host plants.  I think this experiment is not 
too difficult but there must be some willingness and support to do it.  Right now, I think we have no evidence at all that this transmission per se , has ever occurred in a field or in an orchard. 
Chair  
64. Thank you.  Can I just come back to Dr. Hale for a moment, just on the remarks you made 
just now?  You mentioned work that you had done on the calyx end of the apple.  Did you choose that because you thought that was part of the apple that was most likely to be the source of transmission, or is there a higher probability the other way around, other parts? WT/DS245/RW 
Page 146  
 
 Dr. Hale  
65. The reason that we have done the work on the cal yx end of the fruit results from some earlier 
work in the 1980s which looked at apples, matu re symptomless apples ha rvested from a heavily 
infected, or severely blighted orchard with more th at 75 strikes per tree.  We were unable to pick up 
any bacteria on the surface of the fruit, of these mature , harvested fruit, but we did pick up bacteria in 
the calyx end of the fruit.  We have been consiste ntly able to do this from apples taken from severely 
infected orchards.  The fact that there has never been any evidence from any ot her work that has been 
done, which has shown that there is any latently in fected fruit, or any fruit – mature symptomless fruit 
which has bacteria which have moved through the tr ee, from the branch into the fruit.  This could 
possibly happen with immature fruit, very young i mmature fruits.  There is no evidence of mature 
symptomless fruits having been in fected internally. Th e work by Dueck and Roberts, and various 
other people over the years, where samples have b een taken from cores taken  directly through the 
fruit, which includes the flesh tissue, has not picked  up anything in that flesh tissue.  There was no 
latent infection in that flesh tissue.  Our work has always been directed at the calyx end of the fruit 
because we know that it is a possibility.  We  wanted to see whether there was any possible 
transmission from the calyx end of the fruit.  So t hose are the reasons why we have directed our 
research in that area.  
Chair  
66. Thank you very much.  If the experts have nothing more on that question, let's go back to the 
US for the next question. 
United States  
67. If I may take just one minute, Mr. Chairman.  Thank you. 
68. Mr. Chairman, that would conclude the US questions at the moment, thank you. 
Chair  
69. Thank you very much.  In that case, perhaps I could now invite the delegation of Japan to 
pose any questions, or make any comments they have for the experts. 
Japan  
70. Like the United States, we would like to tha nk deeply the experts we understand who have 
spent many hours and efforts into preparing these documents which we had visited previously.  And 
also I would like to thank particularly Dr. Haywar d for the encouraging words about the citrus canker, 
about which we are planning a different case against the United States. 
71. Now let me begin my question – very simply yes and no question – addressed to each of the 
experts.  That's about the completion of the pathway or specifically Tsukamoto II, as it is called.  So 
many questions have been raised by each of the experts about the results or the relevance to the 
natural environment in Tsukamoto II.  My question, very simply yes or no question – is:  Is it your 
opinion that Tsukamoto II has no scientific value?  Yes or no please. 
Dr. Smith  
72. Mr. Chairman, I think that in designing a series of experiments to determine which insects 
might carry bacteria from fruits to flowers, and cause new infections, you first have to set up a basic experimental design to get the thing to work.  Yo u design things in your favour.  You work with 
heavily infested fruit material.  You confine the insect s so they have really no choice but to walk on it.  
At the other extreme, you contaminate the insects di rectly and again, make sure that when these 
insects have the maximum possibility of doing so.  And when you have obtained those results, you  WT/DS245/RW 
 Page 147 
 
 
 say:  yes, we have a model to start with.  We can obtain a positive result, in the most favourable 
scenario.  Then you must go on, and you must investig ate scenarios that are more realistic.  I cannot 
be convinced by what I would call a kind of preliminary calibration of the experimental system, that transmission really happens with the insects which r eally visit rotting apple fruits in orchards under 
conditions which are reasonably close to those whic h are really required to complete the pathway. 
Dr. Hayward  
73. Mr. Chairman, we are talking about Tsukamoto II – transmission of E .amylovora  from 
blighted mature apple fruit host plants via flies.  To me it is quite remarkable this study could have 
been done at all.  I think the authors of the work  were severely constraine d by having to work under 
highly contained quarantine conditions.  But I wa s persuaded by the evidence, I think from New 
Zealand, about the nature of the fly and the fact th at the fly is not one which is necessarily one which 
could complete the pathway.  So you ask whether the work has any scientific merit.  I can only say 
that it is incredible to me that it was done at a ll, really, under the conditions, the severe constraints of 
the containment.  I don't know whether my colleagues agree with that. 
Dr. Hale  
74. Again, I think I probably have to agree with both Dr. Smith and Dr. Hayward in what they 
have said there.  This is a first part of an overall experiment, if you really want to find out what is 
going on, I think it is difficult to make the conclusi ons that the pathway is completed by carrying out 
work under extreme conditions with any sort of fly,  or any sort of insect, and also to make the 
conclusions on two separate parts of the experime nt.  If the whole thing had been done as one 
experiment so that the flies picked up the bacteria, a nd then those flies that had picked up the bacteria  
had actually infected other host material, then that is possibly the next  stage which could be looked 
at.  But to conclude that the pathway could possi bly be completed by the two separate experiments 
under those extremely artificial, no-choice conditions fo r those insects, just doesn't gel with me, I'm 
afraid. 
Dr. Geider  
75. I will certainly not now judge the value in these assays.  Actually there are other papers 
showing the same.  When I started with fire bli ght there was an old paper from Milton Schroth saying 
that an insect which was crawling on ooze was then  placed on a selective agar plate, and you could 
see the footprints of the insect.  Where the insect touched the agar you saw developing micro colonies.  It's certain that insects can carry the pathogen.  Y ou may also recall that we did that paper in 2001, 
Hildebrand et al., where we caught insects in a fi re blight orchard to find out which ones were 
carrying fire blight, that means which were contaminated with E. amylovora  and there was 
appreciable amount of insects carrying the pathogen.  I think this occurs and the fire blight orchard 
was not heavily oozing.  There was fire blight but only in minor twigs and not completely destroyed.  There are other reports and there is this report which is actually a very tough one just by constraining 
insects so heavily, and then putting them onto peeled pears.  It is known that a few cells of E. amylovora  can cause heavy symptoms on a wounded or sliced pear.  Fifty cells are enough to cause 
normal symptoms on a pear.  So I think it is no wonder that you can contaminate an insect, or you can 
even pick up a contaminated insects in an orchar d and then bring it on a wounded pear and it will 
cause fire blight symptoms.   
76. So, I think with all the knowledge we had before , this paper is not telling us a new aspect of 
how fire blight can spread under those conditions.  Fo r those reasons I agree with Doctors Smith, Hale 
and Hayward that it's an artificial experiment wh ich has to succeed because we know there are living 
cells and we know there is susceptible plant tissue.   For those reasons I would agree it is not too 
meaningful on completing a pathway of transmission of fire blight. WT/DS245/RW 
Page 148  
 
 Japan  
77. Thank you.  As a follow-up question to the same issue, of Tsukamoto II- completion of the 
pathway, certainly some expressed that the conditio ns are very extreme because it was done in very 
limited opportunities and very close lab situation.  We had to choose it, as Dr. Smith expressed, we 
really would have like to used the earth instead of the insects, but we didn't have a choice.  Now, is it 
fair to say that, assuming all the conditions are equal, every ecological conditions are equal, the 
presence of a certain amount of inoculum and co mmon flies and wounded pear, with these three 
elements present, isn't it more likely that the pa thway will be completed than in the absence of these 
three elements, assuming all the other conditions, ecol ogical factors, are identical?  And it seems to 
me that Tsukamoto II, too, had assumed all these combinations of these three elements, these three 
factors, it would be more likely that the pathway will be completed than otherwise, than in the 
absence of these elements.  Is it fair to say that, or no? 
Dr. Smith  
78. Well, I must reflect, Mr. Chairman.  One could sp eculate that if this line of investigation was 
continued, and the various experimental variables were changed to be clo ser to natural conditions 
(that would mean that perhaps the amount of in oculum from the fruit was brought down to a lower 
level, that the insects were freer to move and to decide for themselves whether they would or would 
not contact the fruit, that they had more time in whic h then to fly, disperse, to do various other things, 
before they would alight on other fruits and infect them).  It is perfectly possible in that case, that although there is a starting inoculum, and the insects do pick up some bacteria in the first instance, 
that the amount of bacteria picked up is quite small.  Even that it is undetectable.  I recall that in the 
studies in New Zealand, no bacteria were recovered from any insects which were associated with rotting fruit.  That is the behavioural pattern of th e insects.  Even if you could recover bacteria from 
the insects, they may hardly make contact with th e susceptible host issue, so that in practice, the 
pathway is not completed.  It is  a question of amount, intensity, how much inoculum, how well does it 
survive, how do the insects behave over the period of time?  And the outcome of such an experiment 
under realistic conditions could perf ectly well be that the disease is not transmitted in that scenario. 
Dr. Hayward  
79. Mr. Chairman, I don't really have anything much to  add to what Dr. Smith has put rather well.  
The only evidence we have, and this is our problem , concerns apples, and the experiments done in 
New Zealand over two seasons.  Insect transmission do es occur, in spite of the adverse environmental 
factors – drying, desiccation, UV irradiation – these are the kinds of environmental factors which will be inimical to the fire blight pathogen.  Insect transmission occurs, from oozing cankers to blossoms 
in fire blight of apple and pear.  It also occurs on banana.  In spite of the adverse environment, insect 
transmission does occur, but I really don't have a nything more to add to what Dr. Smith has said.  
Thank you. 
Dr. Hale  
80. It's quite correct of course that insects can transmit fire blight.  We know that insects do 
transmit ooze that can infect flowers.  What we are talking about here really is fruit which is 
symptomless, mature and as far as I can make out, are only likely to be carrying bacteria in the calyx 
end of the fruit.  How can we get those to be tr ansmitted by insects, even if those fruit are breaking 
down, as fruit will do if you just leave them on the ground or in a tree in an orchard?  How do those 
bacteria actually get to flowers and cause the sympto ms in the flowers?  Do the insects which are on 
the rotting fruit actually go to susceptible flower tissue?  I agree with Dr. Hayward.  The evidence that 
we have was only over a two-year period, althou gh there was an earlier reporting in 1996, where we 
actually did a similar experiment, but were not looking at whether insects were involved in the 
transmission.  We were just assuming that ther e could be a possibility of transmission from the 
surface of a fruit or from the calyx end of the fruit to a susceptible flower.  Now, the situation is that  WT/DS245/RW 
 Page 149 
 
 
 we have not been able to show that there is any tr ansmission.  Again I just want to reiterate that the 
information that we have is from trying to transmit bacteria from the calyx end of the fruit, which is a 
fairly protected area of a fruit, to a susceptible fl ower.  There are other possibilities that could be 
looked at.  But that is the evidence that we have at the moment under normal field climatic conditions, 
which takes into account a lot of the things that Dr. Hayward suggested, as being factors which might 
be involved in the survival of the bacteria and the possibility of their movement.   
81. We know that oozing cankers do provide bacter ia, which can be transmitted by insects to 
susceptible blossoms.  This is a basis of how fire blight actually starts in the orchard, but that's 
actually not what we are talking about right now.  We are talking about the possibility of the bacteria 
coming from discarded rotten fruit and being transm itted by insects to flowers, and we have no 
evidence of that under plausible ecological conditions.  Thank you. 
Dr. Geider  
82. Still, we are coming back to this problem:  Is  rotting fruit rotting because of fire blight?  And 
I think we should realize as bacteriologists that soft ro t is not fire blight.  Soft rot is also caused by 
fungal micro organisms and therefore it is a very comp lex situation in a fruit.  I am really cautious to 
say that a rotting fruit is a plain source for E .amylovora  , and all insects sitting on the fruit will then 
carry the pathogen to other locations .  For those reasons I still think and this has been said before, that 
this pathway is very unlikely.  As usual in th ese instances it cannot be completely ruled out because 
you can always say even that an event one to 1012, can occur once in the world.  I think this is so 
unlikely that we can discard this suggestion. 
Dr. Hayward  
83. I profoundly agree with what Dr. Geider said, I think it is very important.  The examples of 
insect transmission we have in banana, for example,  or in fire blight, are where insects with their 
limbs, pick up what is almost solidly a pure cultu re, almost a pure culture, of the specific pathogen 
causing that type of infection.  If you have a rotte n fruit, as Dr. Geider has referred to, you are picking 
up what is a mess, a succession of organisms, which have got nothing to do with fire blight.  And I 
think that is a very important distinction.  Ooze fro m a canker in fire blight, or ooze on a banana, these 
are almost pure populations of a specific pathogen. 
Japan  
84. Thank you.  With the consent of the Chairman, we would like to invite Dr. Goto to make a 
short remark about the responses we have had so far.  We invite reaction from each one of the experts.  
But since we have spent about over one hour, shoul d we break here for a moment, or just go on? 
Chair  
85. Not yet, but please invite Dr. Goto to put an y questions that he wants or to make any 
comments that you want him to, if that is what you would like to do. 
Dr. Goto  
86. Thank you Mr. Chairman, members of the Panel and all of the experts.  I would like to 
comment on the replies of the four experts to the Question 3 of the Panel on this opportunity. 
87. I consider from the following reasons that both Azegami Studies I and II clearly demonstrated 
that apple fruit can be latently infected with fire blight bacteria.  Some of the experts agree on the 
view that the invasion of the bacteria into the fruit from the pedicel is a consequence of transpiration 
without active colonization.  However, the activity  of the bioluminescence genes inserted into the 
bacteria might not be observed so clearly if only 10 to the fourth power (104) to 10 to the fifth power WT/DS245/RW 
Page 150  
 
 (10
5) bacteria of 1 to 2 micrometres transpired into the fruit.  Azegami described that they proved the 
presence of the pathogenic bacteria in the flesh at the level of colony formation units of 10 to the sixth 
power (106) to 10 to the eighth power (108) per 0.1 cubic centimetres.  Th is fact clearly indicates that 
the bacteria actively propagate in the fruit tissues. 
88. Since the growing stage from fruitlet to immatu re fruit, and further to mature fruit is a 
continuous process, I consider that  the notion, "infected apple fruit always develop visible symptoms, 
and thus symptomless fruit are always healthy and free from fire blight bacteria" has not yet been 
established.  On the contrary, both Azegami Studies  I and II seem to suggest that a possibility has 
become extremely high where apple fruit may become latently infected with the bacteria which exist 
inside a fruit-bearing twig and then invade throug h a pedicel into the fruit before completion of the 
formation of an abscission layer. 
89. Azegami Studies and Tsukamoto Study I also seem  to suggest that the current view that 
"mature apple fruit can not be infected or infested with fire blight bacteria" should be modified, and 
that latent infection should be furthe r confirmed under the natural conditions. 
90. In order to confirm this latent infection, scien tists, in impartial position, from both fire blight 
occurring countries and fire blight-free countries should jointly conduct experiments in a fire blight 
occurring country and to find conclusions.  I believe that the International Society of Plant Pathology 
(ISPP) would be the most appropriate organization to conduct such project. 
91. The necessity to confirm the results of Azegami Studies under natural conditions is also 
recognized by all of the four panel experts, a lthough their expression somewhat varies form one 
another.  I believe that there are still many im portant phenomena that we have overlooked on fire 
blight epidemiology.  The transmission by latently in fected fruit is one of the most important features 
to be reinvestigated immediately.  Thus, I believe that the research of fire blight epidemiology has 
entered into a new era, and we "plant pathologists" should seriously consider this situation in order to 
protect apple and/or pear orchards in the worl d from further spreading of fire blight disease. 
92. It is my view that the quarantine measures for fi re blight of apple fruit should be maintained 
until the results of the proposed research under the ISPP project research proves that the latent 
infection of apple fruit does not really occur under natural conditions, and latently infected fruit does 
not certainly relate with fire blight dissemination in  the natural world.  I thank you for your attention. 
Chair  
93. Thank you.  Can I ask if there is an English translation of that document, a written English 
document available?  Could it be circulated to the Pa nel and to the experts before we invite them to 
respond?   
United States  
94. Mr. Chairman, if it is possible, we would like a copy as well. 
Chair  
95. Yes, indeed I intended to include you in that. 
96. Can I ask the Japanese delegation if that will be the end of your questions and comments?  It 
will.  When we have dealt with this, depending how long it takes, it will then be the time for the Panel 
to ask questions to the experts.  We will have a br ief adjournment, after we have heard their responses 
to the Japanese document, and before we put our qu estions, because we want to put our questions in 
writing.  Not because we are expecting a written answ er, but so the experts have the chance to prepare  WT/DS245/RW 
 Page 151 
 
 
 themselves and to have the questions in front of th em.  We will take a fifteen minute break after we 
have dealt with the response.  I don't suppose it will take too long for them to run off a few copies, 
will be back in a minute. 
Dr. Hayward 
97. Chairman, may I ask a question?  May I ask the Japanese delegation if the Azegami I study 
scheduled for publication in the December issue of the Journal of General Plant Pathology is already 
out.  It has been published? 
Japan 
98. Azegami I  has been published. Tsukamoto I is going to be published in February. 
Chair 
99. I'll just give a moment or two for the experts to read through the documents from Japan and 
Dr Smith are you prepared now, thank you.   Dr Smith you have the floor. 
Dr Smith 
100. Mr Chairman, I am sorry, I am not prepared.  Can I pause while  you ask someone else? 
Chair  
101. You can come back, yes 
Dr. Hayward 
102. Thank you Mr Chairman.  I'll go through questi ons one, two, three, etc.  The Azegami I 
studies involve inoculation of bacterial suspensions  onto the pedicel.  I accept the evidence that there 
has been some proliferation of th e bacteria because the data given in paragraph 2 do show that you get 
an increase in numbers.  That's done by plating, that has nothing to do with the luminology, the bioluminescence.  Azegami II studies involve application of inoculum to a scalpel incision.  The exact numbers I don't recall but they were fairly high number s.  This was in periods of 15-30 days prior to 
maturation.  22 October was the date of harvest, the inoculation into the fruit bearing twig had been 
up to 30 more days prior to 22 October.  Now in or der for these results to have any relevance to real 
world conditions you have to postulate that there is some injury event which is equivalent to a scalpel 
incision into a twig.  You have to ask how is that wound going to occur equivalent to the incision of a 
scalpel to a certain depth into a twig. It won’t be anything equivalent to what was used under artificial 
conditions. 
103. I have to come back to the fact that latently  infected mature symptomless fruit have not been 
demonstrated by previous studies.  This has not b een established by previous studies.  So, with respect 
to 5 and 6, the idea of an internationally-sponsor ed fire blight epidemiology experiment involving 
countries with and without fire blight in theory might sound fine but I think it will be very difficult to 
implement in practice.  And as Dr Smith said, how do you, in fact, replicate conditions where your are 
going to generate injury to a twig that is equivalent  to a scalpel incision to a certain depth?   You can 
have wind blasting experiments.  I am not sure that I do agree with 5 and 6.  I agree with the desire to 
keep fire blight disease of apple and pear out of countries that don't have the disease but I am not sure that paragraphs 5 and 6 take us in a useful dir ection.  Simply because we don't have enough impetus 
from what has been done so far to say this needs to be done. 
Chair 
104. Thank you very much.  Dr Hale. WT/DS245/RW 
Page 152  
 
 Dr Hale 
105. If I could just go on to numbers 5 and 6.  In theory, it sounds great.  But I find that it could be 
fraught with all sorts of problems in being able to do  a piece of work like that.  As far as number 7 is 
concerned, I agree entirely that we should try to keep  fire blight out of countries which don't have fire 
blight.  As a plant pathologist, or plant protection pe rson, of course that is what we would like to do. 
106. As for the inoculation studies of Azegami.  It  does seem to show that if you inoculate a cut 
pedicel you can get bacteria transmitted into the fruit, whether they be transmitted by sucking in 
through transpiration or active movement of the bact eria.  The suggestion that the bacteria do increase 
in numbers is not to be denied.  The data are ther e.  Again, as far as the movement of  bacteria from 
the stem or twigs through into the fruit is concer ned, I still have my doubts that this has actually 
happened.    I feel that if this had happened much of the work that has been  done by earlier workers, 
such as Dueck and various other people, and the work that Rodney Roberts did many years ago, 
would have shown that some bacter ia would have been detected in fruit tissue if that was actually 
happening.  Hypothetically, of course, we could say, it could possibly happen. 
107. But just going back to what Dr Hayward said.  We  have got to look at what the real situation 
would be. I am not sure that the experiments that were done by Azegami actually do have a 
relationship to what could happen in a real life situ ation.  Again, as Dr Hayward clearly pointed out, 
you have got to have some method of getting the b acteria through the twig and into the pedicel.  
While this could possibly happen through storms and wi nds and so on, this is a possibility.  But where 
are these bacteria actually going to come from?  Ther e is no evidence that bact eria within the tree are 
moving through the tree into twigs and into mature fruit.  If this was something that was happening 
then I am sure that some of the detailed studies th at have been done in the past on fruit would have 
been able to detect some bacteria in that fruit. 
Dr Geider 
108. I agree with some part of these studies and I disag ree with other parts.  I think that when you 
artificially inoculate apples with E. amylovora  they will not only persist – they will also multiple to a 
very low extent.  I mentioned in my abstract, which was added at the end of my comments, that its an 
increase of ten.  When you do a similar experiment with immature pears you will get a multiplication 
which is 10
4 to 106 above the level of inoculation.  So I thi nk there is a clear difference. When I read 
these numbers that in these apples there was 108 bacteria per 0.1 ml that sounds incredibly high.  I 
cannot imaging that a mature apple inoculated with bacteria 104 also will develop such a high 
population of  E. amylovora .  Though there are objections coming up with the papers. 
109. I told you in the beginning that I have quite a bit of experience with bioluminescence.  I 
started with Cal Kado in '85 and we found that bact eria which produce light have to have an active 
cell metabolism.  And the reason is that the light substrate which is a decanal has to be recycled by the consumption of ATP.  And whenever the bacteria grow to a stationary phase and they don't multiply 
anymore, or they don't grow at all that means at  low temperatures they do not produce light.  You can 
easily show that when you take bacteria and cool it down.  Next week we will have a student course 
doing the same reaction:  dump in a little bit of antib iotic and the bacteria will produce no light within 
five or ten minutes.  So, whenever the cell metabol ism is disturbed the light production is zero.  For 
those reasons, I am really wondering that there is a st atement in the papers saying that "I can see even 
light production in the dark by naked eye".  I wonder that in an apple, with bacteria which are at the 
intermediate to lower level and apples are stored up to five months, although I think this is a record, 
then there is still an appreciable  high amount of light production. 
110. I don't know about the second paper – I think the name is Tsukamoto – that if these apples 
were somehow pre-treated before the pictures were ta ken, that means when you take them out of the 
cold room they had to recover Cal Kado showed me that.  Many times he took plates of the cold room  WT/DS245/RW 
 Page 153 
 
 
 and I had to wait two hours until I saw light.  I think this is very obvious.  Bacteria with slow 
metabolism do not produce light.  For those reason,  I appreciate the high technology of Japan in 
developing cameras which amplify single photons wit hout any background.  Still when I look to the 
conditions in the first paper its one  minute exposure, it's a very short time.  I think these cameras must 
be extremely powerful to see all that light from these few non-metabolising bacteria. 
111. We did many experiments showing whenever tho se bacteria go into a stationary culture the 
light production is so low that it is hard to detect  it, even in a dense culture.  I am wondering what 
these pictures and what these observations mean.  I don't know the camera and I don't know the light 
detecting system.  I know that a colleague of mine  was cited before, Sherm Thompson, tried similar 
experiments (in cooperation with NASA) in Utah, that  he had a camera which was amplifying light to 
a million fold or so and they could see a few dots.  There was a lot of background and it was difficult.  
I think it is a very difficult system in biology, in biochemistry, of light production, and also in physical arrangement – how to pick up the light.  For those reasons, I severely have objections if these 
papers are really producing a message.  I would ha ve expected that these methods which are attractive 
(and Dr Smith, I think, said in his comments) that it s an advancement in biology  to do that, that there 
are basic publications telling about the circumstance of light production, how was a mutant created,  
in which gene is a transposon inserted?  In that it must be a strong promoter, it must work continuously, otherwise it would shut off the light immediately if the promoter was not working.  So we did similar experiments.  We used that transpos on and, of course, you can get strains which have a 
high life production with insertion of a transposon as a chromosome.  It might happen that it's not a 
relevant gene affected, so there still can be virulence.   I think I agree to this extent but with the other 
things that the light production is continuing in statio nary cells and in cells wh ich are in apples cooled 
for so long time, I am wondering.... 
Dr Smith 
112. Well, the point I want to make is that under na tural conditions, not after artificial inoculation, 
you are dealing with much smaller bacterial populations .  Whether they are sucked in by transpiration 
or whether they go in through some wound that you could imitate by mimicking storm damage or 
hail, or some other kind of damage.  This research would be interesting to do, but what is the likely 
outcome?  The likely outcome is that you would fi nd that you can get, under some circumstances, 
bacteria getting into fruit under very unfavourable c onditions when the plant is highly infected and 
you design the experiment appropriately.  You can r ecover fruit that have some latent bacteria in 
them, not only in the calyx but also in the flesh of  the fruit.  But is that important?  And is that 
dangerous?  Probably not.  The amounts of bacteria involved would be really rather small.  And the 
past work that has been done shows that attempts  to recover large numbers of bacteria from fruits 
have not found them.  And if one can never find fruits  with large numbers of bacteria then where is 
the inoculum to complete the pathway. So these sep arate parts of these experiments can be analyzed 
separately but in the end everything has to work at  a sufficiently high level for the whole thing to 
function. 
113. A final comment I would make is that I don't know whether this needs some international 
collaborative effort.  I would have thought that if such a research programme is interesting for Japan 
then it should be possible, through international ci rcles, to negotiate laboratories where experiments 
can be done.  I don't see any fundamental reason why such a thing could not be arranged, without 
having to call on any international organization. 
Dr Goto, simultaneously translated 
114. Thank you very much for all the comments and opinions raised by the experts.  However, I 
have noticed some misunderstanding among some of  those comments and opinions we have heard 
from the experts.  I would like to comment on each one of those points. WT/DS245/RW 
Page 154  
 
 115. First of all, about the comment made by Dr Smith.  Dr Smith stopped in the middle of his 
comments, however, I heard that he said that the in oculum level or density was quite high and I have 
also seen they say this expression in some of the repor ts made by the experts.  However, this level of 
inoculum we are talking about is 10
4 or 105.  This is not high at all.  This  is very natural.  This is the 
level of inoculum we can easily  find out in natural conditions. 
116. As for the comments made by Dr Geider on the issue of light.  Azegami carried out our 
research on the issue of light and also on the number of  bacterium at the same time.  He looked at the 
two issues at the same time.  He did not look at the light issue only.  This is the very reason why this 
is one of the misunderstandings we can find among th e people. This is one of the very reasons why 
we are asking for international co llaborative research on this issue. 
117. The next point I would like to talk about is the role played by the abscission layer.  People 
tend to say that the abscission layer does not work as a barrier to prevent the invasion or invasion or 
introduction of the bacteria into the fruit, but Azeg ami continued his study or research on this point.  
He has already produced some data about this. He found out that the bacteria can actually infect the fruit itself through the abscission layer, even on the mature fruits. 
118. I wanted to touch on the comments made by Dr Hayward.  He said he was quite doubtful 
whether the same kind of wound made by the scalpel in the Azegami research can really happen in 
natural conditions or not.  He did not really look at the possibility whether the bacteria in the fruit 
bearing twig can actually go into the flesh or the fr uit of the mature apple.  We can say that some 
bacteria which already exists with in a twig can actually be increased in the natural conditions.  Then 
they can actually go into the fruit bearing twig, and then into the pedicel and into the flesh, and then 
they can become the primary infection source. 
119. Many of the experts said that we have already observed such and such data and the results in 
the previous research and in experiments which were  carried out in the past, but any progress made in 
the scientific field is based on the denial of made in  the past, and if we stick to the result found in the 
past we cannot made any progress in the scientific field.   Over the last two years we have made such a 
great progress in this field.  We are living in a world with high speed and if we really identify the core 
problem we can make great progress in this field.  Therefore, we should not stick to data produced in 
the past.  If we keep doing so we cannot make any pr ogress in the field.  This is one of the reasons 
why I am advocating for the establishment of joint resear ch – collaborative research – in this field.  So 
that we can make more progress. 
Chairman 
120. Can I ask the experts whether they wish to say  anything further in response to that.  There 
were a  number of different points there.  Dr Smith?  Nothing to say.  
Dr Hayward 
121. I would only refer to Azegami II study; entry of E. amylovora  into apple fruit from fruit 
bearing twig, through abscission layer prior to fruit maturation.  The experiment was done as follows.  
Fruit bearing twigs on trees were injured by cutting; a width of 2 mm to a depth of about 2 mm, with a 
surgical knife or scalpel, 1 to 7 centimetres from the abscission layer between fruit pedicel and porse  
and a five micro-litre drop of inoculum, about 10
7 CF counted, for me it's units per ml., was deposited 
in each cut.  Now, Azegami and co-workers showed that they could get transmission of that inoculum 
into the fruit in order to show, they believe, that it could occur.   But it has never been demonstrated 
under natural conditions.  Isn't that the point?  We have no supporting evidence of such an infected 
fruit, a latently infected fruit under natural conditions.  WT/DS245/RW 
 Page 155 
 
 
 Chairman 
122. Thank you. Dr Hale? 
Dr Hale 
123. I am interested in what Professor Goto has ju st said because from what I just heard, Azegami 
has shown that the bacteria can actually go through the abscission layer into the mature fruit.  Now, 
we haven't seen that evidence anywhere.  We have n't seen the paper which says anything about that.  
The only evidence that we have is with Azegami II , where the bacteria from inoculated twigs were 
then found in the fruit.  But that could well have been before any abscission layer had been produced.  
So, are we now being asked to comment on some evid ence or some data that we haven't seen?  I don't 
need to comment on the other things, but I am conf used at the moment as to what we are actually 
talking about.  Is this some new in formation that we have not seen yet? 
Japan 
124. It's new information, not in Azegami II.  It’s a different study.   
Dr Hale 
125. Well, then I have no comment to make on it. 
Dr Geider 
126. To start with the last words of Dr Goto, I agree that past and present are not always 
comparable.  Of course, its dangerous  to cite papers from  1926 and this year's and to refer that these 
people have seen or not seen something.  Of cour se, including your papers, progress is made.  I think 
we should be open to new methodologies and to new ways to answer questions.   
127. On the other hand, there are also biological requirements and just biological facts which 
cannot really be changed.  One fact is that light  production and cell number are not in a ratio.  The 
light is dependent on the ATP content of the cells and not so much of the cell number.  By having few 
cells with high ATP and having many cells with low ATP you can get the same light production.  This 
is an example where we cannot proceed.  We can proceed on technology; that better cameras with 
better background sensitivity will pick up other signals, but there are al so some biological facts that 
cannot be changed.   
128. This other fact that was the answer to Dr Hayward's that the bacteria were used as a low 
group density and they multiplied quite a bit.  I ca nnot confirm that.  I told you in our hands they 
multiplied by a factor of ten.  The only thing we can discuss is if we used the wrong cultivar.  We 
used Braeburn and, as far as I understand in the Jap anese experiments, 'Rome Beauty' was used and 
Jonagold.  So, 'Rome Beauty' is considered to be most susceptible.  I don't know if we can get to this 
cultivar easily in Germany but we can, of course, tr y to answer the same questions with other fruits, 
other cultivars and find out if there is a difference.   We have to be a little cautious that we are not 
doing all our lab work  looking for these minor di fferences and minor changes which might occur or 
may not occur.  At the end, the qu estion is:  does what we are finding in artificially inoculated fruits, 
where ever its coming from a pedicel or even from the stem section, say something about distribution 
of fire blight.  I agree, somehow, that whatever we  know – and I think this was published earlier – that 
fire blight is moving from the tip, from the shoot, dow n eventually to the root.  This is the proposed 
way to move down and up again to the twigs with fruit bearing twigs. I cannot really say if on a 
natural tree fire blight is coming from the top and is di stributed in all parts.  I think I mentioned that in 
my comments.  Pears have a tendency to be more systemic in the distribution of E. amylovora  within 
the tree.  For those reasons, pears can get systemic ally infected and the whole tree can die.  With 
apples, I don't know if there are cultivars which migh t have the same feature but, is it possible that WT/DS245/RW 
Page 156  
 
 apples can systemically be destroyed by single inf ection?  [....Yes, it is possible....]  But I don't know 
if this is the case for the apples which are thought to  be exported.  Do we have cultivars that are so 
highly susceptible that they can be destroyed systemi cally – that the whole tree is affected at the end 
and everything that is on the tree might bear the pa thogen?  That is a question, I may give to the 
American delegation if they have these sort of observa tions.  At least, in general, heavily blighted tree 
will be destroyed and removed by the owner of th e orchard.  We are now thinking about very 
hypothetical assumptions which may not really be realistic. 
129. You objected that three experts were referring to soaking up bacteria just by water 
evaporation.  You can always say that this is not true in all cases or its not exclusively this mechanism.  I still think it is rare that a cut wound in the plant will take up water and when there are 
bacteria in the water they will be soaked up.  There is another earlier experiment (after so many years, 
its historical, but we are talking about the past, t oo) with Bob Goodman who took EPS preparations he 
called  amylovorin  showing that they cause wilt in cut apple branches.  These ESP preparations clog 
the vessels and the plant wilts.  When there are ba cteria which do not clog the vessels they will be 
soaked up and disappear in the plant tissue.  For thos e reason, I think it's natura l to show that an apple 
will take up liquid from outside, which disappears within the fruit. 
Dr Smith 
130. I would like, finally, to make a comment which is that the significance of the results also 
depends on the kind of circumstances in which fruits  might become latently infected.  We could 
imagine, in theory, that a new field of fire blight epidemiology can be discovered which has not yet been appreciated, which is that even in trees that are not very heavily infected there may be a 
movement of bacteria into fruit establishing latent in fections. But, that doesn't seem likely.  It seems 
much more likely that the circumstances of latent  infection will be when you have a very severely 
blighted twig.  We then have to bring it back to  the scenario of exporting apples and say:  are apples 
taken from severely infected orchards?  And, they aren't.  It may imply that certain phytosanitary 
measures have to be taken to make sure that this  doesn't happen.  But we are still talking about a 
scenario that doesn't correspond to normal commercial practice. 
Chairman 
131. Thank you very much.  Now, if the experts have nothing more to say.  Does that conclude the 
Japanese presentation?  Good.  In that case, it now co mes to the time for the Panel to put its questions 
to the experts and I propose to adjourn for 15 minut es while we prepare a written version of those 
questions. Some of our questions have already been c overed to some extent so we will have to edit it 
as well.  We will resume here in 15 minutes time. 
132. Let's resume.  We were at the point where the Panel was going to put questions to the experts 
and these questions are now in writing.  I hope ever yone has got them including the interpreters, yes I 
see the interpreters have.  I am going to put these qu estions one at a time and then offer each of the 
experts the opportunity to respond to them.  
133. The Panel wants to ensure it clearly understands  the responses of the experts with regard to 
the scientific relevance of the fire blight status of  an orchard.  In particular the Panel notes that: 
Dr Hale stated that "harvesting of mature symptomless fruit from severely infected orchards 
is unlikely"(answer to Q4).   
 
Dr Hayward indicated that "the available scientific evidence does not demonstrate that 
imports of mature apple fruit from severely b lighted orchards could complete a pathway 
for introduction of fire blight in to an orchard"(answer to Q13). 
  WT/DS245/RW 
 Page 157 
 
 
 Dr Smith stated that whether the requirement fo r a pest free place of production or a pest free 
production site is an effective phytosanitary  measure, is a technical question depending 
primarily on the biology of the pests and also  on the management of the crop".(answer to 
Q10). 
 
Dr Geider stated that "there should be no sever ely blighted commercial orchards.  In that case 
the orchard is not suited for fruit production and the trees have to be removed.  An 
orchard with only one fire blight strike - is a blighted orchard and should be handled with 
care for fruit trade to fire blight free countries". (answer to Q12). 
 
(a) given the available scientific evidence regarding the biology of E.amylovora  and 
commercial apple crop management in the United States, is there any scientific justification for requiring that apple fru it be sourced from an orchard free of fire 
blight  irrespective of how an orchard is defined?  Let me stress here that I am 
interested only in the scientific basis, if any, for such a requirement.  I'm not asking 
whether there is a common practice or policy in this regard. 
(b) if there is scientific justification for requiring that apple fruit is sourced from an 
orchard free of fire blight, is there any scientific justification for distinguishing between a severely blighted orchard and one in which a limited number of strikes 
occurs? 
(c) if there is justification for requiring that apple fruit is sourced from an orchard free of 
fire blight, can this freedom be maintained without requiring that the orchard be 
surrounded by a fire blight free buffer zone. 
Chair 
134. I'll follow the order that we followed before a nd invite Dr Smith to address this question. 
Dr Smith  
135. Well, Mr Chairman, the justification of requiri ng that fruits should come from a fire blight-
free site is that it solves all your problems.  All th e other questions about transmission, about latency, 
about completion of pathway and everything else.  Provided that the fruit is taken in the first place 
from a fire blight free orchard, you are not going to have any contamination of the fruit and if you 
have no contamination of the fruit then you're safe.   I don't know whether I have produced a scientific 
argument or if that is a technical argument.  You are asking to limit ourselves to strictly scientific 
arguments.  It is notable in a case like fire blight  in apple fruits that th e inspection of the fruit 
themselves will not necessarily tell you very much.  Y ou can't inspect them all, you can only inspect 
samples.  If you are going to inspect anything, it is  the orchard which would make sense to inspect.  
Now the question remains whether as an expert I am completely convinced that there is no risk at all 
that fruits will become contaminated provided that they satisfy the commercial requirements of being 
mature and symptomless.  Because if that were so, (as in the American submission), the fruit would 
indeed only need to meet technical standards a nd perhaps not even need to be accompanied by a 
phytosanitary certificate.  I've advanced similar ar guments in the last discussion.  I still have a doubt 
about this, and  feel that there is technical justifi cation for taking what appears to be a very effective 
measure.  Thank you. 
136. Regarding questions (b) and (c), I think the poin t is debatable.  Question (b) is, I think, a 
question which can only be subject to detailed nego tiation.  There is no firm scientific basis for 
deciding where to set the limit between severe and light  infection.  These things have to be solved 
pragmatically.  Concerning the question of the buffe r zone, I don't believe there is any necessity for a WT/DS245/RW 
Page 158  
 
 buffer zone except to the extent that it separates the production site from which the export is coming 
from other production sites around it and they must be physically distinct.   
Chair  
137. Thank you.  Dr Hayward 
Dr Hayward  
138. Well, my understanding is or my reading of the literature indicates to me that the scientific 
study most relevant to questions (a), (b) and (c ) is that of Roberts in 2002 I think I accept that 
scientific evidence as a thorough study.  So in answ er to question (a) I would say that there is no 
scientific justification for requiring an apple fruit be  sourced from an  orchard free of fire blight.  I 
think my answer to (b) would be similar to Dr Smith's in that I am not very happy about sourcing fruit 
from a severely blighted orchard, but in saying that I am contradicting my acceptance of the work of 
Roberts in 2002.  With regard to buffer zones, coming  back to Roberts, the buffer zone of any size did 
not provide any additional help.  I think again w ith (c) I would say there's no justification for 
requiring that apple fruit be sourced from an orchard free of fire blight. 
Chair  
139. Thank you very much.  Dr Hale. 
Dr Hale  
140. My comment would be very similar to Dr Hayward's, and the only extra information that I 
can add is that in work that I did with Professor Sherman Thomson in 1987, shows that we did harvest 
some fruit from an orchard which was severely infected .  The only bacteria that we found associated 
with that fruit was in the calyx end of the fruit and that was only in a small proportion of the fruit, a very small percentage of the fruit, and from the re search that we have done recently that's already 
being discussed today, I still feel that we are not getting bacteria transmitted from the calyx end of the fruit to the susceptible host tissue.   So I don't think that there really is any justification for buffer 
zones.  I think this is borne out by the work of Roberts in 2002 which was a very extensive study 
where apples were taken from orchards where ther e was infection and there were no bacteria found 
associated with any of those fruit even from adjacent to where the in fection sources were.  Really I 
guess that by saying that there is no justification, I don't really have to answer (b) and (c).  I did mention, I think, in my initial comments that a bu ffer zone or at least something which separates the 
production site could be quite  useful, but this does not have to necessarily be a buffer zone.  It could 
be a marked area and as Roberts pointed out no further phytosanitary protection is provided by a 
buffer zone.  Thank you. 
Chair 
141. Thank you very much.   Dr Geider 
Dr Geider  
142. I think we are now going into definitions which can be seen that or this way.  I think the 
question about severely blighted orchards and blighted  orchards is maybe a little bit academic here. I 
think for research purposes you might define some thing severely blighted but it is not widely 
accepted.  It came up in New-Zealand for some reasons.  In general the question is, anyhow, what effort is applied in orchards, and as far as I understand it is not easy to say if there is no strike at all in 
a big orchard.  There are of course necrotic branches .  There is something which could be fire blight.  
I think it is very difficult to define a fire blight free orchard anyhow and one in which fire blight has 
occurred. Of course to trace events back that can  be extended indefinitely, like agreement between 
Japan and Australia with apples when this affair came up and Tasmania was suddenly involved in fire  WT/DS245/RW 
 Page 159 
 
 
 blight.  There was no fire blight but at first we di d not do a complete survey.  Still I think having fire 
blight in one place in a continent like Australia, c ould affect other apple producing areas.  They were 
considering it to be very dangerous.  I think this is an extreme.   
143. On the other hand going back to orchards, it’ s a matter of negotiation.  You can make a 
requirement that an orchard has to be free of fire blight for five years and subject to careful 
inspections held by qualified people which can iden tify or detect the pathogen unambiguously.  There 
are many things in between when you ask me for my personal opinion.  The risk even when food is 
picked from a papaya plant orchard is low that this will spread fire blight.  I think we discussed that 
issue many times in the last and in this meeting.   But politically it might not be so easy.  People say 
you have fire blight and there might be fruit with  fire blight, so it's dangerous.  I think these 
negotiations have to be done between the parties and scientifically it might be difficult to define fire 
blight in a large orchard because it's hard to detect  when its occurring.  I know from the institute I am 
with now, usually there are 10-20 strikes per year in an orchard, maybe two hectares, which is not that 
big but still its not easy to look at everything.  Is that a fire blight orchard or not?  Of course the people say that they will remove the branches and the people are wondering where the fire blight is 
coming from.  They always blame the hawthorn hedges and something else outside.  This is of course 
the discussion we are not really having.  When infe sted host plants are not in the orchards they are 
somewhere else.  Back to the answer , I think the chance for blighted orchards to introduce fire blight 
by a fruit is low. 
Chair 
144. Thank you very much.  So can we go on to the second question ? 
145. In its comments on the experts replies to the ques tions Japan indicates in paragraph 9 that in 
light of the Japanese environment the most likely pathway scenario will be in surburban areas where 
most of the population live but not inside the orch ards.  Does this statement by Japan alter your 
previous replies regarding the likelihood of comple tion of the pathway for the introduction of fire 
blight into Japan through importation of mature symptomless apple fruit from the United States. 
Dr Smith 
146. Well Mr Chairman, first of all, I would say that  this most likely scenario is one which applies 
not only in Japan, but almost in every case  where fire  blight has spread from one country to another.  
Although the authorities have tried to monitor the situ ation in orchards and detect the first signs in 
orchards, it's not in the orchards that they were found.  They were found in gardens, parks, along 
motorways.  These places are not normally inspected.  It is easier for fire blight to appear and to start 
multiplying to form quite an outbreak without bein g noticed under those conditions.  But this, I must 
say, applies to a situation where fire blight is spr eading naturally by insect or by wind over a relatively 
short distances from infected plants.  In that resp ect it is not the same scenario as the introduction 
from fruits entering by intercontinental trade.  I don't think that the basic question whether an infected 
fruit provides inoculum which a vector could transfer  to a susceptible host is much altered by the 
question whether that susceptible host is an apple tr ee in an orchard or whether it is a Cotoneaster 
growing in a garden. 
Chair 
147. Thank you very much.  Dr Hayward. 
Dr Hayward 
148. Mr Chairman, well first of all I think I agree al most entirely with what Dr Smith has said.  I 
recall in 1964 around Kew Gardens, Richmond and the Hampton Court Gardens there was a lot of fire 
blight on Cotoneaster in private gardens.  I don't thi nk that will be much different from the situation in WT/DS245/RW 
Page 160  
 
 the Japanese environment, so I wonder whether th e Japanese environment is quite as unique as is 
being presented to us.  Regarding the previous st atement by Japanese or to your previous replies 
regarding the likelihood of completion of the path way for the introduction of fire blight to Japan 
through importation of mature symptomless apple fruit from the United States, I don't think I would alter my conclusion.  The completion of the pathwa y has not been demonstrated from discarded fruit. 
Chair 
149. Thank you very much.  Dr Hale. 
Dr Hale  
150. I really have very little to add to that b ecause I think the key thing there is mature 
symptomless apple fruit.  We do not at this poi nt have any evidence to suggest that mature 
symptomless apple fruit from the Unite d States or from anywhere will in fact complete a pathway for 
the disease. 
Chair 
151. Thank you.  Dr Geider 
Dr. Geider 
152. I think basically the Japanese concern is somehow justified.  There is actually spreading of 
fire blight from urban areas, private home gardens, or parks with ornamental orchards.  We have that 
in Heidelberg.  It was known that there are areas in  parks with fire blight which are the source for 
infection to orchards.  Now the next question is how does fire blight come to these places.  I would, of 
course, agree with Dr Hale in saying that there is  a very low risk of adding a little bit more.  That 
means that we are not only considering the fruit.  If an  insect is going into a flower or an apple or pear 
tree, it can also go to a flower of Cotoneaster or something else.  All fire blight host plants are 
exposed to this risk, but I think we still have this agreement about the risk of these apples, especially 
since we are saying that mature symptom-less apples  are not defined and not known, the risk in this 
case is extremely low. 
Chair  
153. Thank you very much.  Now we shall go on to the next one. 
154. Does available scientific evidence demonstrate that in order to control the accidental 
contamination of harvested apples by E. amylovora , processing facilities must be able to reliably 
identify the origin of apples. 
Dr Smith 
155. Well, Mr Chairman, the International Plant Pr otection Convention requires that the integrity 
and security of consignments subject to a phytosan itary certificate should be assured by the National 
Plant Protection Organization of the exporting country.  What do we mean by the accidental 
contamination of harvested apples?  The objec tive is to prevent the mixing of uncertified 
contaminated fruit into batches of uncontaminated cer tified fruit.  This is not a question of movement 
from fruit to fruit, but of the presence of contaminated  fruit.  If contaminated fruits, which would have 
to be immature, could accidentally enter consignmen ts for export, then they would pose a problem.  
Then the consignment would not be composed of ma ture symptomless fruits, as it is  supposed to be.  
To avoid this,  you have to be able to reliably identify the correct origin of every part of the 
consignment, or in other words,  the integrity of the consignment.  WT/DS245/RW 
 Page 161 
 
 
 Chair 
156. Thank you.  Dr Hale 
Dr Hale 
157. Mr Chairman, again, I think that has been expr essed very well.  I find this question rather  
difficult to answer to be perfectly frank.  I woul d have thought that processing facilities do in fact 
have an identification system for the origin of  fruit which they process.  Whether the available 
scientific evidence shows that this is necessary is another question.  I would have thought that the 
practice is needed for other reasons as well, a nd I frankly find this question rather outside my 
experience.  I can only talk from experience w ithin New Zealand and the processing facilities do 
reliably identify the origin of apples.  In fact, every case of apples, and in many cases each apple is 
identified and can be identified back to an orchard.  If you look at a lot of New Zealand apples in the 
market place, they will have a sticker on them wh ich has a number on which actually relates back to 
the orchard from where those apples came.  I thi nk that the processing facilities do reliably identify 
the origin of apples and I'm sure that in most cases the US has a similar system.  I'm certain that US 
apples which come to New Zealand, for example, can  be identified back to the processing facility and 
the orchard involved.  This is not to do with disease situ ations in particular, but it  is usually to do with  
supermarket traceability of those particular items of fruit.  
Dr. Smith 
158. The need to maintain the integrity of consignm ents does not, of course, necessarily relate only 
to one pest, fire blight, and whether the apples ar e going to New Zealand, Japan or wherever.  They 
are not being certified only for one pest.  The whole procedure of phytosanitary certification is, in any 
case, required for exported apples.  I don't see any alternative. 
Chair 
159. Dr Geider, do you have anything to add ? 
Dr Geider  
160. The question reminds me about BSE habits deve loped in Europe and especially in Germany 
that you can trace back all meat to the farmer.  Even  if that can be done, what does it help ?  Will you 
say we are now proving that we somehow got fire  blight out of one apple or detected a few 
E. amylovora  cells in an apple are now doing something to the orchard ?  Do you want to prove that 
they have fire blight and they are not allowed to export anymore or what would be the consequence ?  
The question is a little bit difficult scientifically.  Pr obably things can be traced back but even if you 
do that there are very rare occasions that an  apple can be associated with fire blight. 
Chair  
161. Thank you very much. 
162. In Japan's written response to a question posed by the Pane l on post harvest requirements 
Japan states that it has been susp ected, for a long time, th at healthy fruit can be infected with fire 
blight bacteria from contact with infected fruit (a ) are you aware of scientific evidence demonstrating 
that healthy apples can be infected through contact with infected fruit,  (b) if such evidence exists does 
it suggest that all apples could become infected  or that only damaged apples are susceptible to 
infection through contact with infected fruit and (c) is  there any evidence that such spread of infection 
has occurred through trade in apple fruit. WT/DS245/RW 
Page 162  
 
 Dr. Smith 
163. I am not aware of any scientific evidence demonstrating that healthy apples can be infected 
with fireblight if in contact with infected fruit.  If it is possible, I would think that for biological reasons which have been well demonstrated in a number of studies, damaged fruits are much more 
likely to be infected than undamaged ones.  I don't think there is any evidence at all that there has 
been a spread of infection through trade in apple fruit. 
Chair  
164. Thank you very much.  Dr Hayward. 
Dr Hayward  
165. Mr Chairman, if this question had been concer ned with pears rather than apples then the 
answers might be different.  (c) is there any evid ence that such spread of infection has occurred 
through trade in apple fruit, I have no evidence that th at spread has occurred.  (a) are you aware of any 
scientific evidence demonstrating that healthy apples can be infected through contact within infected 
fruit, I am not aware of any such evidence.   So the answer to (b) is not necessary. 
Chair  
166. Thank you very much Dr Hayward. 
Dr. Hale  
167. I think that Dr Hayward has a very good point there.  We are not talking about pears, we are 
actually talking about apples in this case.  If we were talking about pears we may be looking at 
something quite different.  I am not aware of any scientific evidence demonstrating that healthy apples can be infected through contact with infected fru it, and therefore my answer to (c) is no, I have 
no evidence that such spread of infectio n has occurred through trading apple fruit. 
Chair  
168. Thank you.  Dr Geider 
Dr Geider  
169. Well at least I would say that if this is a probl em, this experiment could easily be done in the 
lab.  Just take an apple which is not artificially inoculated and just bring it into contact with other 
apples.  Then you could find out whether you could spread it on to the next apple.  From my point of view apples for export are not really in contact with  each other, they are separ ately packed into paper 
pouches.  If there is little risk that this can theore tically or even experimentally happen it might not 
occur in practice. 
Dr. Smith  
170. Mr Chairman, on this point I am not quite sure about commercial practice in apple packing 
houses.  The question relates to contact with infe cted fruit, and for me contact means one apple 
touching another apple.  Another  scenario is when both those ap ples are immersed in a liquid, such as 
a disinfectant or a fungicide dip. There are, in packing houses treatments, in which either apples are 
immersed or alternatively they are misted with  a spray of water.  Then the possibility of 
contamination is obviously greater.  We come back to the fact that we are talking about the movement 
from the surface of one apple to the surface of anot her.  The evidence for movement of epiphytic 
populations surviving on one apple to the surface of  another apple is pretty small.  The more 
important pathway is for bacteria to move from inside  one apple to the inside of another apple.  That 
pathway is normally closed, unless the apples are damaged.  WT/DS245/RW 
 Page 163 
 
 
 Chair  
171. In that case I will go on to the last question.  Th e Panel recalls that the scientific experts have 
previously been asked to comment on the availa bility of scientific evidence supporting post harvest 
treatment of apple fruit.  The Panel notes that Japan  has asserted that Japan's post harvest requirement 
such as packing facilities, disinfection requirements are normal requirements in any process.  To what 
extent do Japanese post harvest treatments e.g. surface disinfestations, disinfection of packing facilities, separation of fruit destined for Japan represent commonly accepted commercial practice.  
To what extent are these types of treatment nor mally identified in phyto sanitary certificates 
accompanying apple exports. If apples were sourced from a severely blighted orchard would this alter 
your responses to previous questions related to scien tific evidence supporting post harvest treatment.  
Dr Smith I think this is probably more in your field. 
Dr Smith  
172. Surface disinfestation of apples is not worldwide, I would say, a regularly accepted 
commercial practice.  It's not quite clear what is meant by disinfection of packing facilities and how 
this is distinct from just normally keeping them cl ean and in good condition.  Do you have to disinfect 
them after every batch of fruit goes through them or do you have to disinfect them once a month?  There are many possible options as to how and when packing facilities are disinfected.  Separation of 
fruit destined for export is  a common practice, not necessarily for commercial reasons, but because 
it's required for phytosanitary certification  It is no rmal to require treatments to be identified on 
phytosanitary certificates accompanying exports, tho ugh this is more often for fumigations than for 
disinfections. The question about  apples sourced from a severely blighted orchard makes no sense. 
You should never take apples from a severely blighted orchard.  It is simply not a feasible commercial practice. 
Chair  
173. Dr Hayward 
Dr Hayward  
174. Mr Chairman I am not competent to answer question (b).  I am simply not sufficiently 
familiar with phytosanitary certificates which accompan y apple exports.  To go back to the beginning 
the preamble, packing facilities and disinfection requ irements, I would have thought that all packing 
facilities expect a certain level of sanitation and this would be a normal requirement.  Now that's a 
pretty vague statement but I would have thought that some level of sanitation is a normal requirement.  
(a) Why would we treat mature symptomless apple fr uit by any disinfestation process, say a chlorine 
solution or something of that nature?  There is no evidence of an epiphytic population, even less after 
storage at low temperature following the work of Hale.  The only site on the apple fruit, mature 
symptomless fruit which Dr Hale has identified, is the calyx.  The calyx is a protected site and a 
surface disinfestation process is not going to be effective because the calyx will not be reliably 
penetrated by the solution you are using to treat it. 
Dr Hale 
175. I would agree entirely with that.  That is ex actly what I was going to say.  I was going to 
mention that surface disinfestation does not remove E. amylovora  from the calyx of the fruit.  It is  a 
protected site and it is very difficult to actually wet that site with any surface disinfestation.  We have 
tried that and it just doesn't work.  We did some  work on surface disinfestation which has actually not 
been published but was done with one of our Japanese colleagues who came  to work with us in New 
Zealand. Putting fruits which had been surface inoculated with E. amylovora  through water was just 
as good as putting it through chlorinated water in removing any bacteria from the surface of the fruit.  
However, it does not represent commonly accepted commercial practice to attempt to surface disinfest WT/DS245/RW 
Page 164  
 
 fruit.  Disinfection of packing facilities, whilst th is is normal practice – certainly in the packing 
facilities within New Zealand – I don't believe it needs to be made a mandatory situation or 
regulation. Separation of fruit destined for Japan is not a major problem at all.  Certainly within the 
packing facilities that I have been involved with in  New Zealand, we can separate fruit destined for 
just about any market anywhere in the world.  Ninety five per cent of the apple fruit which is 
produced in New Zealand is in fact exported to mark ets all over the world.  It is separated in the 
process of packing for the destination by requirement s which may be "small fruit", "large fruit", the 
colour and type of fruit, the variety and so on.  That is not a major issue.   
176. To what extent are the treatments normally identified in phytosanitary certificates 
accompanying apple exports?  I believe that there is some identification in phytosanitary certificates 
for exports of apple fruit for treatments for insect pests, but I am not aware of any necessarily for 
diseases.  As for apples sourced from a severely bli ghted orchard-  our experience is that  surface 
contamination is not a problem.  The only area where the bacteria would reside would be in the calyx and that would not be affected by any of the disinfestation treatments. 
Chair  
177. Thank you very much.  Dr Geider. 
Dr Geider  
178. I think I pointed out last time that I am personally a little bit concerned about chlorine 
treatment of apples because chlorine has certainly other effects including some effects on human 
health.  I agree with the others that it might not help to get sterile surface of apples where everything 
is fine.  I think it is a goodwill action that you sa y "I have done something and you should feel safe 
now", and for those reasons we shoul d seriously consider if this is by legal requirements like for peas 
where there is a certificate describing certain measur ements for treatments if this is good for the 
consumption and if this is good for the apples. For those reasons I would even say that Japan should 
be cautious in not asking too much to do with the apples otherwise there will be other problems.  Of 
course, we should not take suspici ous apples and use them for export. 
Chair  
179. Well thank you very much.  That completes the questions from the Panel for the experts.  
Thank you for your replies and your patience in deal ing with that.  Before proceeding further I would 
like to know whether either of the parties would lik e to ask any additional questions to the experts.  
United States. 
United States  
180. Mr Chairman, if it would be alright with the Panel we would request just a few minutes to 
digest what the experts have said in response to yo ur questions in order to determine whether and if 
we would ask some follow-up questions.  
Chair  
181. Just a few minutes.  We'll remain in the room. 
United States  
182. Thank you Mr Chairman.  The United States has one follow-up question which we would like 
to address to Drs Geider and Smith.  While we unde rstand from a policy perspective the answer that 
you have given regarding severely blighted orchards  and the harvesting of the apple fruit from those 
orchards, we were hoping that you could discuss the scientific evidence as it re lates to mature apple  WT/DS245/RW 
 Page 165 
 
 
 fruit harvested from severely blighted orchards and discuss how your opinion is based on that 
evidence. 
Dr Smith  
183. Mr Chairman, I am not quite sure how I understand that question.  I can take it by analogy 
with Europe.  Apples are freely traded  between European countries and so are pears, and fire blight is 
widespread in many European countries but fire blig ht is also controlled in commercial orchards.  The 
level of commercial fireblight control does not assure complete freedom from fire blight, and some 
infection most probably persists wh ich is not seen.  It would not be possible to market successfully 
apples or pears from severely blighted orchards.  I think it is simply not realistic to address the 
question of fruits from severely bl ighted orchards.  I'm not sure that it is even necessary.  The key 
question is just how little fire  blight it is advisable to have in pr oduction orchards.   I don't think that it 
is easy to give a scientific answer to this ques tion, because as with all questions of setting a tolerance 
in relation to regulated pests and international trade,  tolerance is mathematically linked to the level of 
protection that the country wants.   A country which sets a relatively low level of protection will 
accept a high tolerance and vice versa.  It's negotiable. 
Dr Hayward 
184. I think the question, Mr Chairman, was to Dr Smith and Dr Geider. 
Chair  
185. Well that's true but you will certainly be given the opportunity to comment. 
United States  
186. My question Dr Geider was in light of your statement that you did not believe that 
commercial apple fruit should be taken from a severely  blighted orchard.  I was hoping to get a sense 
of what scientific evidence vis-à-vis the completi on of the pathway from mature apple fruit harvested 
from orchards or on what scientific basis you woul d premise a conclusion that mature apple fruit 
should not come from a severely blighted orchard. 
Dr Geider  
187. There is maybe no strict scientific basis to say that this is something that you should not do.  
On the other hand there are practical reasons.  I th ink it is what we say a good practice so its good 
orchard practice not doing that, and its also in te rms of practical approaches in harvesting fruits, a 
very common practice not to take the apples fro m severely damaged trees.  I understand in New 
Zealand, there are cases where so called severely bli ghted orchards occur.  It is not worthwhile the 
effort to go for the fruits and first you can always  say that a farmer who is really willing to sell 
everything to make a little bit of money, will do th at.  I think in this big commercial activities this 
might not really be the case, but it can happen.  Of course when you ask me as a scientist if there are really limits that so many strikes would prevent any apples to take them to export, it's hard to say.  I think I have no experience seeing these apples but ther e is some experience saying they are, in some 
cases, more infected in the calyx than apples from other orchards without fire blight.  That would of 
course be very biased to have this precaution not to  take the apples from the blighted orchards, but 
maybe this is the only reason I have.  It's good co mmercial practice to obey limits of phytosanitary 
ordinance. 
Dr Hale  
188. I would like to make a small comment.  I don' t want people here, from Japan or the United 
States to think that New Zealand has a large number of severely infected orchards.  In the commercial 
production of apples we perhaps see severe infection maybe in half a dozen orchards over a period of WT/DS245/RW 
Page 166  
 
 ten years.  The orchards are usually those which have  been neglected by growers.  The situation really 
is that a number of exporting companies now have  their own representatives that are inspecting 
orchards all the time during the year, not only for fire blight but for anything.  There are spray diaries which have to be kept up to date  to show that all the fungicides, insecticides and so on have been 
applied only when required, because we operate unde r an integrated fruit production system.  We are 
not using the old conventional cal endar spray programs so the growers and the representatives of the 
export companies are very closely monitoring all orch ards all the time.  Now that's the situation in 
New Zealand.  I don't know how that relates to other pa rts of the world, but I'm sure that in the major 
apple producing countries that's the case.  I just wanted to make sure that you didn't think that we in New Zealand have severely infected orchards and that we are harvesting fruit from them.  In most 
cases, the severely infected orchards where we di d experimental work, were neglected orchards and 
the numbers of mature symptomless fruit were very sm all.  As Dr Geider has just pointed out I would 
suggest that it would not be economic to even harvest those fruits, never mind export them. 
Chair  
189. Thank you.  Do you have any comments Dr Hayward? 
Dr Hayward  
190. Not much.  If we accept all si des of the evidence about ma ture symptomless fruit it should 
still be possible to harvest fruit from a severely bli ghted orchard without risk.  It's a matter of 
definition how to define a severely blighted orchard.   Does that mean every tree with 75 strikes per 
tree or does it mean an orchard in which there are some trees which have 75 strikes per tree? 
Dr Hale  
191. Can I give a quick answer to that as I am pr obably the culprit at suggesting that a severely 
blighted orchard had 75 plus strikes on average, 75 plus strikes per tree.  I would blame my colleague, 
Professor Sherman Thomson actually for coming up with  that, but because I was the senior author on 
the paper it's been put down to me.  It was a defi nition that we came up with for the purposes of our 
work  just to show a relative sort of figure.  It isn' t really a definition at all, so we don't want to get to 
hung up on that situation. 
Chair 
192. Can I just seek some clarification.  You suggest ed that the severely blighted orchards were 
neglected orchards, does that mean that given a b it of attention they can become again productive less 
severely infected.   
Dr Hale  
193. For the pear orchard I would say no.  If it was an  apple orchard, yes they can be brought back 
into production again.  So if it’s a neglected orchar d it usually means that the treatment will be the use 
of a chainsaw. 
Dr Smith  
194. I would like to add the point; Mr Chairman, th at a neglected orchard is neglected not only 
with respect to fire blight, it's also neglected with  respect to codling moth and everything else.  So 
fruits for export cannot be taken from such orchards.  This is an academic argument.  WT/DS245/RW 
 Page 167 
 
 
 Chair 
195. Does that respond to the US question. 
US 
196. Yes Mr Chairman.  Thank you. 
Chair  
197. Do you have any other questions. 
US 
198. We do not have any more questions. 
Chair 
199. Thank you very much.  Can I ask Japan if you have any final questions for the experts. 
Japan  
200. Just one question.  We understand that all th e experts agree to some extent that mature, 
symptomless or mature healthy apples are the ones to  be exported to Japan, and there is an issue of 
export control, or quality control, or export insp ection, how tight it is, and without tight exporting 
inspection or tight export control we may never be getting what we want.  You might recall the last 
time we met, we presented the fact that some Amer ican apples were found to have a codling moth 
larva in Taiwan, and you might also recall that th e discussion took for the first time in the past 25 
years.  So now we have discovered in 2004 once again some of the American apples were found to 
have a codling moth larvae destined to Taiwan.  Those shipments definitely have been exports 
certified as well as inspected by the United States.  That took place in 2004 and that previous case was in 2002.  Therefore it is not in a once in a twenty-five experience but taking place once in two years or maybe every year – I am just guessing. 
201. Obviously I think the experts have put much em phasis on the quality of export control so that 
counts out any immature apples or infested appl es or whatever which may cause problems.  My 
questions are directed to Dr Hayward and Dr Hale in particular.  The level of security or the cruelty of 
export inspections and the management, or more  generally quality control as a whole in the 
production site or post harvest management will be a very important factor as phytosanitary measure 
against the introduction of fire blight.  Would you agree with me from a scientific point of view ?  
Dr Hayward  
202. Chairman, I can't accept that there is such an entity as a mature symptomless infected fruit.  I 
can't accept that that's been proven, I can't accept th at there is anything more than an extremely low 
probability that the pathway from that hypothetically la tently infected fruit, that the pathway could be 
completed from that entity to a Cotoneaster, a quince or to  a pear or to an apple.  That's the part I find 
difficult.  The overall probability is the product of  the two probabilities.  The probability of the 
infected fruit and then the probability of the completi on of the pathway, and the product of those is to 
me, it is vanishingly low. 
Dr Hale  
203. I have nothing more to add to that.  I think you've summed it up perfectly.  You have the two 
parts to the argument, one of which is the latently  infected fruit and mature, symptomless, infected 
fruit which I don't believe that there's any proof that th is actually happens in nature.  Then there is no 
proof of a completion of a pathway.  Export quality controls ensure that the consignments of apples WT/DS245/RW 
Page 168  
 
 you are dealing with are mature and symptomless and w ithout controls you can't be sure of that.  So 
that if you are relying on the idea that they sh ould be mature and symptomless, that has to be 
established, it has to be verified.  It is an exempl ary measure in itself ensuring that they are mature 
and symptomless.  The simplest phytosanitary measu re of all is a phytosanitary inspection of an 
exported consignment to determine whet her or not the fruit are symptomless. 
Chair 
204. Very good.  In that case I believe we may c onclude our question and answer session.  The 
secretary of the Panel will prepare a summary of al l the information provided by the experts both in 
written responses to the questions and oral responses in  today's meeting.  Each of the experts will be 
asked to review this summary and to confirm that it accurately reflects his views.  The summary will 
be part of the Panel's report on this dispute.  
205. Before closing our proceedings I would like to invite the experts to make any final comments 
if they so wish. 
Dr Smith  
206. I will just reassert what I said a moment ago, whic h is that  the experts conclude  that there is 
a low probability that any mature symptomless fruit exported from the United States should be 
latently infected with fire blight.  There is a lo w probability that even if such fruit (even for that 
matter fruit that showed symptoms) reached Japan, that fire blight will be transmitted to hosts.  If that 
is so, the main risk and the main phytosanitary c oncern is to ensure that only mature symptomless 
fruits are exported.  Adequate phytosanit ary measures to ensure that are needed. 
Chair 
207. Thank you.  Dr Hayward do you have any final comments. 
Dr Hayward  
208. Mr Chairman, possibly a couple of comments.  I would have liked a little more time to think 
about the Panel's questions but I guess that the circum stances meant that we had to do it this way.  To 
go back to question 1 I am not entirely clear about the publications of Azegami I and II, Tsukamoto I 
and II, but perhaps this is not a critical issue.  Pub lications have the greatest impact when they are put 
out into the international arena.  An internationa l journal will have 50-100 or even more associate 
editors.  I am not meaning to diminish the stat us and quality of the Journal of General Plant 
Pathology, but if you can get your work accepted by an international journal with the widest spectrum 
of referees from the widest range of background, then you really have something which you can show 
to the world and say "this is our work and it sta nds up no matter who judges it".  Mr Chairman I've 
probably said too much. 
Chair 
209. Thank you very much.  Dr Hale. 
Dr Hale  
210. Just before I sum up, I would just like to add to what Dr Hayward has just said and the fire 
blight community worldwide is a very strong communi ty.  There's a lot of work that has been going 
on regarding fire blight for  many years.  It's th e most studied bacterial disease and on a three yearly 
basis we have an international workshop on fire bl ight.  The eleventh one will be coming up in the 
year 2007 to be held in Portland, Oregon, and the last one was last year in July in Bologna, Italy.  I 
would like to encourage the researchers from Japan  to  actually present the work that they are doing at 
future workshops.  There was one of your collea gues from Japan at the meeting but there was no  WT/DS245/RW 
 Page 169 
 
 
 presentation of any of the work that had been going on.  I think it is very important that we as research 
workers in the area of plant pathology and in particul ar fire blight,  exchange our views, and have the 
opportunity to exchange our views not only on a form al but on an informal basis by posters and by 
oral presentations at these international workshops whic h are held on a three year basis.  I would like 
to really encourage you in future to  make sure that the sort of work that you have been talking about, 
and you're starting to publish now, is in fact ai red at these international workshops.  We are not 
talking about a disease which comes up and appear s on an irregular basis.  This disease has been 
around for a long time, and we have a lot of people who are actively working in this area.  I would 
really just like to thank the Panel for inviting me , and of course the other experts as well, to this 
meeting so that we can, in fact, hear the views on a personal basis particularly from Japan and also 
from the United States.  For me, it really has not ch anged my views from those of two years ago, but I 
think we should not neglect the fact that there is  some good research work which is going on in Japan 
and elsewhere in the world as well.  If we can possi bly get some collaborative work on some of these 
areas, I don't think it has to be under the auspices of  ISPP, as  I am sure that there is enough goodwill 
within various communities working on fire blight to be able to continue and perhaps do some further 
work in these areas.  However, at  this stage, my feeling is that we have no proof that mature 
symptomless apple fruit can be latently infected.  We have no proof that a pathway can actually be 
completed.  So, just as Dr Geider and the Japan ese delegation mentioned, research is an ongoing 
process.  I agree with that, but agai n the research work must be criti cally peer reviewed before it can 
actually stand up and persuade us, the experts, to star t to change our minds.  That's all I have to say. 
Chair  
211. Thank you very much.  Dr Geider. 
Dr Geider  
212. Just to catch up with the last point of course I personally agree with the opinion of Dr Hale 
and Dr Hayward that all papers s hould be peer reviewed and try to submit it to high quality journals.  
Of course it does not guarantee that the value of the c ontent is therefore the truth in science.  It is a 
small selection but it is not that it is the end of the story.  I think the reason that we are here is the 
concern from Japan to catch fire blight in the count ry and I think there was one point made - maybe it 
was in the New Zealand statement – although it is a little bit risky to do this research in Japan of 
course you can never say I don't know whether there are high risk facilities with labs completely 
isolated and then whatever.  However on the othe r hand we are humans, we carry bacteria on our 
hands even if we wash them.  There is always th e risk that you can carry some out.  Therefore I am 
not completely in agreement with your opinion that the Japanese should join the fire blight 
community by presenting a lot of old research.  This is  a little bit too far and too risky.  Of course, I 
said in my comments there should be cooperation w ith other countries which have fire blight and 
which have facilities that can do many experiments wit hout a risk level because the fire blight is there 
anyhow.  We should keep in contact to discuss at least projects, and finally we might even get to some 
joint venture in doing something against fire blight.  So this is possible, although we should not be 
urged to do fire blight research by all means,  including for political and scientific means. 
213. Another point is to summarise quickly th e scientific background we have discussed. 
E. amylovora  is an arial pathogen which means it can only survive in certain areas of plants and it 
does not survive in soil or in other environments. Even on surfaces of fruits and plants it's really  
epiphytic.  For those reasons it's a very special pa thogen.  I wonder how it still survived so long in 
nature, but it has ways this is of course what Dr Go to was referring to.  The research is not finished 
we still have a lot of questions re garding pathogens and we may answer  some of them.  Back to the 
purpose of the meeting, I think we agree in some point that the contamination of fruit especially of apples for export is low to zero, but of course this could still mean something, when it's not zero.  
However on the other hand if deposited fruit is a sour ce of fire blight bacteria it can be asked further 
and can be experimentally answered to some extent.  I was referring to at least a lot of practical WT/DS245/RW 
Page 170  
 
 concerns to dissect the fruit for all pathogens and to fi nd out what is going on in rotting fruit.  It is a 
lot of things.  It starts with a pathogen and then othe rs come up.  Then at the end its an array of micro 
organisms.  I think this could happen with fire b lighted rotting fruit.  It's difficult to describe what 
cannot be easily resolved.  There could at least be some attempts to dissect the micro organisms and to 
find out how does E. amylovora  propagate in this environment if  it is removed by others, and my 
opinion is it is probably replaced by many other bacter ia like in the leaf spots of soybeans.  At the end 
of course as always in science there is no absolute  zero statement that nothing can happen and we 
really have to think that fire blight can be spread  by many other events and whatever you do you can 
import wood with just some sort of bacteria, although I think that treated wood can also be contaminated, but my most concern is about pe rsonal imports which could carry the disease and 
finally it could even be things in parcels or what we did in the old days of bacteriophages we extracted 
letters from colleagues to get the bacteriophages.  So there are sources and there are fruits, pears and 
especially apples is one of them but there are many others. 
Chair  
214. Thank you very much.  On behalf of the Panel may I now thank our four experts, Drs Geider, 
Hale, Hayward and Smith for agreeing to serve as the experts on this Panel and for giving us the 
benefit of your wisdom and expertise.  The Pa nel has benefited greatly from your written answers , 
the oral replies that you have given today, and the other comments that you have given us.  So before 
closing I would just like to remind the parties that  we will be meeting separately with them on 
Thursday of this week in Room F.  It will be in the afternoon at 15.30 in this room – that's half an 
hour later than we had originally envisaged – 15.30 fo r the final meeting.  Are there any other matters 
to consider?  I don't see that anyone is rushing to take  the floor.  I would just finally like to thank our 
experts once again and wish them Bon Voyage.  The meeting is now closed. 
__________