JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
Document: Recourse to Article 21.5 of the DSU by the United States Report of the Panel
Date: 23 June 2005
Document codes: WT/DS245/RW
Complainant: U.S.
Respondent: Japan
Third parties: Australia, Brazil, China, Taiwan, EU, New Zealand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. XI  GATT 1994Art. 2.2, 2.3, 5.1, 5.2, 5.3  Sanitary and Phytosanitary Measures (SPS)Art. 4.2  AgricultureArt. 5.5, 5.6, 6.1, 6.2, 7, Annex B  Sanitary and Phytosanitary Measures (SPS)

JAPAN – MEASURES AFFECTING
THE IMPORTATION OF APPLES

Recourse to Article 21.5 of the DSU by the United States

Report of the Panel

I. INTRODUCTION
1.1 On 10 December 2003, the Dispute Settlement Body ("DSB") adopted its recommendations
and rulings in the dispute Japan - Measures Affecting the Importation of Apples (the "Japan – Apples
Panel Report"). 1 Having found Japan's phytosanitary measure for imported US apples to be
inconsistent with its obligations under the Agreement on the Application of Sanitary and
Phytosanitary Measures ("SPS Agreement"), the DSB recommended that Japan bring its measure into
conformity with that agreement. On 30 January 2004, the United States and Japan concluded an
agreement pursuant to Article 21.3(b) of the U nderstanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") 2 that the reasonable period of time available to Japan to implement
the DSB's recommendations and rulings would expire on 30 June 2004.
1.2 On 19 July 2004, the United States requested authorization from the DSB to suspend tariff
concessions and other related obligations with r espect to Japan under the General Agreement on
Tariffs and Trade 1994 (GATT 1994), pursuant to Article 22.2 of the DSU.3
1.3 At the meeting of the DSB held on 30 July 2004, Japan informed the DSB that it had
amended its measures on 30 June 2004 to implemen t the DSB's recommendations and rulings within
the reasonable period of time. At the same meeti ng, the United States requested the establishment of
a panel pursuant to Article 21.5 of the DSU. The DS B agreed that the Article 21.5 request be referred
to the Original Panel. The DSB also agreed, at th e request of Japan, that the matter would be referred
to arbitration to determine the level of suspension of concessions, pursuant to Article 22.6 of the DSU.
Japan and the United States agreed that the arbitra tion proceedings would be suspended until after the
adoption of the panel report under Article 21.5. If the Article 21.5 Panel found that Japan had acted
inconsistently with its WTO obligations, then the Article 22.6 arbitrator would automatically resume
its work.
1.4 Australia, Brazil, China, the European Commun ities, New Zealand and the Separate Customs
Territory of Taiwan, Penghu, Kinmen and Matsu reserv ed their third-party rights to participate in the
Article 21.5 proceedings.
A. TERMS OF REFERENCE
1.5 The following standard terms of reference applied to the work of the Panel:
"To examine, in the light of the relevant pr ovisions of the covered agreements cited by
the United States in document WT/DS245/11, the matter referred to the DSB by the
United States in that document and to ma ke such findings as will assist the DSB in
making the recommendations or in giving the rulings provided for in those
agreements."4

B.
PANEL COMPOSITION
1.6 The Panel was composed as follows:
 Chairman: Mr Michael Cartland

1 WT/DS/245.
2 WT/DS245/9.
3 WT/DS245/12.
4 WT/DS245/14.

 Panelists: Mr Christian Häberli
 Ms Kathy-Ann Brown

1.7 The Panel met with the parties and third par ties on 28 October 2004. The Panel consulted
scientific and technical experts and met with th em on 12 January 2005. The Panel held a second
meeting with the parties on 13 January 2005.
1.8 The Panel issued its interim report on 10 March 2005. The Final Report was circulated to the
parties on 21 April 2005. The report was circulated to Members in all three languages [15 June
2005].

II. FACTUAL ASPECTS
5
A. THE DISEASE
1. Fire blight (Erwinia amylovora)
2.1 Erwinia amylovora (E. amylovora), the scientific name for the fire blight bacterium, was first
reported in 1793. Symptoms of infection of host plan ts with fire blight depend on the parts infected.
Infected flowers, shoots and twigs wither, darken, and die. As shoots and twigs wither, they bend
downwards resembling a shepherd's crook. Infected leaves take on a curled , scorched appearance.
Infected fruit do not develop fully, turning brown to black, shrivelling, and becoming mummified,
frequently remaining attached to the limb. Li mbs and trunks of trees may also develop cankers,
which, if disease development is severe, may result in plant death.
2.2 The most serious primary infection with fire blight is an over-wintering canker developed in
the previous season. Fire blight bacteria over-win ter exclusively in infected host plants. In the
presence of warm, wet conditions in spring, the dise ase cycle begins when cankers on infected hosts
exude a bacterial-laden ooze or inoculum. This inoculum is transmitted primarily through wind
and/or rain and by insects or birds to open flowers on the same or new host plants. The bacteria may
spread within the host plant, causing disease in bl ossoms and fruiting spurs, twigs, branches, or
leaves.
2.3 The fire blight disease affects numerous host plants of the Rosaceae family, including both
cultivated and native wild plants. Fr uit tree hosts include apples (genus Malus), pears (genus Pyrus),
quince (genus Cydonia), and loquats (genus Eriobotrya). Important host plants used in hedges and
gardens include genera Cotoneaster, Crataegus (hawthorn), Pyracantha (firethorn), and Sorbus
(mountain ash), although individual species may not serve as hosts.
2. Relevant technical and scientific terms
Abscission layer

2.4 The barrier of cells that develops across the stem at the base of a fruit as it approaches the
time of falling from a plant. This specialized layer acts as the breaking point for separating the plant
from its fruit.

5 The following description of the disease and list of defined terms has been adapted from the Original
Panel report on Japan – Apples (WT/DS245/R).

Bioluminescence

2.5 The emission of light by living organisms.
Buffer zone

2.6 An area in which a specific pest does not occur or occurs at a low level and is officially
controlled, that either encloses or is adjacent to an infested area, an infested place of production, a
pest free area, a pest free place of production or a pest free production site, and in which phytosanitary
measures are taken to prevent spread of the pest.
Canker

2.7 A lesion on the bark of a tree or shrub caused by infection. Fire blight cankers on limbs,
stem, and trunks appear as sunken, discoloured areas th at often exhibit deep cracks in the bark at the
margins of the canker. A hold-over canker is one in which the pathogen may survive the winter and,
if survival occurs, from which the inoculum for primary infections the following spring originate.
Desiccation

2.8 The process of becoming dried up.
Disease (of plant)

2.9 A disorder of structure or function in a plant of such a degree as to produce or threaten to
produce detectable illness or disorder; a definable va riety of such a disorder, usually with specific
signs or symptoms.
Endophytic and epiphytic

2.10 With respect to E. amylovora, the term endophytic is used when the bacterium occurs inside a
plant or apple fruit in a non-pathogenic relationship. The term epiphytic is used when the bacterium
occurs on the outer surface of a plant or fruit in a non-pathogenic relationship.
Entry, establishment and spread (of a pest)

2.11 Entry refers to the movement of a pest into an area where it is not yet present, or present but
not widely distributed and being officially controlle d. Establishment means the perpetuation, for the
foreseeable future, of a pest within an area after entry. Spread refers to the expansion of the
geographical distribution of a pest within an area.
Infection

2.12 When an organism (e.g., E. amylovora) has entered into a host plant (or fruit) establishing a
permanent or temporary pathogenic relationship with the host.
Infestation

2.13 Refers to the presence of the bacteria on the su rface of a plant without any implication that
infection has occurred.

Inoculum

2.14 Material consisting of or containing bacteria to be introduced into or transferred to a host or
medium. Inoculation is the introduction of inoculum into a host or into a culture medium. Inoculum
can also refer to potentially infec tive material available in soil, air or water and which by chance
results in the natural inoculation of a host.
Pathogen

2.15 Micro-organism causing disease.
Pedicel

2.16 A short, thin stalk often associated with a stalk that supports a single flower.
Scion

2.17 A detached shoot or twig of a plant used for grafting.
Spur

2.18 A short branch of the tree that flowers and produces fruit.
Transpiration

2.19 The evaporation of water from plants.
Vector

2.20 An organism able to transport and transmit a pathogen.
B.
JAPAN'S FIRE BLIGHT MEASURES
2.21 The following pieces of Japanese legislation are relevant to this dispute:
• Plant Protection Law No. 151 enacted on 4 May 1950 (and specifically Article 7 thereof);

• Plant Protection Law Enforcement Regulations enacted on 30 June 1950 (and specifically
Article 9 and Annexed table 2 thereof);

• Ministry of Agriculture, Forestry and Fisheries (MAFF) Notification No. 354 dated 10 March
1997; and

• MAFF Administrative Directive, "Detailed Rules for Plant Quarantine Enforcement
Regulation Concerning Fresh Fruit of Apple Produced in the United States of America " dated
30 June 2004 ("Detailed Rules"). This re placed the MAFF Directive "Detailed Rules for
Plant Quarantine Enforcement Regulation Concer ning Fresh Fruit of Apple Produced in the
United States of America " dated 29 January 2002.6

2.22 Japan's conditions for the importation of apple fruit from the United States are as follows:

6Detailed Rules for Plant Quarantine Enforcement Regulation Concerning Fresh Fruit of Apple
Produced in the United States of America (June 30, 2004) (Exhibit JPN-1).

(a) Fruit must be produced in designated fire blight-free orchards. Designation of a fire
blight free-area as an export orchard is made by the United States Department of
Agriculture (USDA) upon application by the orchard owner. Currently, the
designation is accepted only for orchards in the states of Washington and Oregon;
(b) The export orchard must be free of plants with fire blight symptoms;
(c) The fire blight-free orchard must be surrounded by a buffer zone (or border zone) of
around ten-meters, free of fire blight symptoms;
(d) The orchard and surrounding buffer zone must be inspected once per year at early
fruitlet stage. Detection of a blighted tr ee in this area by inspection will disqualify
the orchard;
(e) Harvested apples must be treated with surface disinfection by soaking in sodium
hypochlorite solution;
(f) The interior of the packing facility must be disinfected by a chlorine treatment;
(g) Fruit destined for Japan must be kept separate post-harvest from other fruit;
(h) US plant protection officials must certify that fruits are free from fire blight and have
been treated post-harvest with chlorine; and
(i) Japanese officials must confirm the US offi cials' certifications and inspect packing
facilities.
C.
INTERNATIONAL STANDARDS, GUIDELINES AND RECOMMENDATIONS
2.23 As in the Original Panel, the parties referred specifically to the International Standard for
Phytosanitary Measures (ISPM) 11 on Pest Risk An alysis for Quarantine Pests, adopted in 2004. 7
ISPM 11 describes the PRA process as consisting of three stages. Stage one involves (a) the
identification of a pathway, usually an imported product, that may allow the introduction and/or
spread of quarantine pests, and (b ) the identification of a pest that may qualify as a quarantine pest.
Stage two considers the identified pests individual ly and examines, for each one, whether the criteria
for quarantine pest status are satisfied, that is, that the pest is of "potential economic importance to the
area endangered thereby and not yet present there, or present but not widely distributed and being
officially controlled". Based on the informati on gathered under stages one and two, stage three
determines the appropriate phytosanitary measure(s ) to be adopted. The three stages are summarized
in the PRA Guideline as: "initiating the process for analysing risk", "assessing pest risk" and
"managing pest risk", respectively.
III. CLAIMS OF THE PARTIES
3.1 The United States recalled that on 10 December 2003, the DSB adopted its recommendations
and rulings in the dispute Japan – Apples and found that Japan's phytosanitary measure on imported
US apples was inconsistent with Articles 2.2 and 5.1 of the SPS Agreement. Two sets of conclusions
about the scientific evidence had been central to these findings. First, the DSB concluded that the
scientific evidence did not establish that mature, symptomless apple fruit:

7 International Standard for Phytosanitary Measures No.11: Pest Risk Analysis for Quarantine Pests
including Analysis of Environmental Risks and Living Modified Organisms, FAO, Rome 2004.

(a) would be infected by fire blight;
(b) would harbour endophytic populations of the fire blight-causing bacteria,
E. amylovora; or
(c) would harbour epiphytic populations of bacteria capable of transmitting fire blight.
Second, the DSB concluded that the scientific ev idence did not establish that apple fruit – whether
mature or immature – would serve as a means or pathway of introduction of fire blight to a fire blight-
free area.

3.2 The United States claims that Japan had not brought its phytosanitary measure into
conformity with the DSB's recommendations and rulings by 30 June 2004 when the reasonable period
of time for Japan to comply with its obligations ha d expired. To the contrary, Japan had issued a set
of phytosanitary measures remarkably similar to the elements of its previous WTO-inconsistent apple
import regime.
3.3 The United States claims that Japan's revised measures on the importation of apple fruit fail to
comply with the DSB recommendations and ruli ngs and with Japan's obligations under the SPS
Agreement in that:
• Japan has failed to ensure that its fire blight measures are not maintained without
sufficient scientific evidence and these me asures are therefore inconsistent with
Article 2.2 of the SPS Agreement;

• Japan has failed to ensure that its fire blight measures are based on an assessment of
the risks to plant life or health and ther efore these measures are inconsistent with
Article 5.1 of the SPS Agreement; and

• Japan has failed to ensure that its fire b light measures are not more trade-restrictive
than required to achieve its appropriate leve l of phytosanitary protection, taking into
account technical and economic feasibility, and these measures are therefore
inconsistent with Article 5.6 of the SPS Agreement.

3.4 The United States further claims that Japan has acted inconsistently with its obligations under
Article XI of GATT 1994 and under Article 4.2 of the Agreement on Agriculture.
3.5 Japan argues that the United States has not established a prima facie case in respect of the
claims it has made. Amendments to Japan's import regime for US apple fruit as compared to the
measures in place at the time of the Original Panel had resulted in
• a reduction of inspection from three inspections to one inspection;
• a reduction of buffer zone (or border zone) from 500 to ten meters; and
• the elimination of the requirement that crates be disinfected.

3.6 Japan claims its measure is fully consistent with Articles 2.2, 5.1, and 5.6 of the SPS
Agreement. In addition, Japan claims that given the consistency with the relevant articles of the SPS
Agreement, its measure is also consistent with Ar ticle XI of GATT 1994 and Article 4.2 of the
Agreement on Agriculture.

IV. ARGUMENTS OF THE PARTIES
A. THE SCOPE OF THE DISPUTE
1. Operational Criteria8
4.1 On 27 September 2004, the United States requested that the Panel make a preliminary ruling
that Japan's Operational Criteria were not a measur e taken to comply and were therefore not within
the terms of reference of this Article 21.5 proceeding. In addition, the United States requested that the
Panel not consider the Operational Criteria in dete rmining whether Japan's measures taken to comply
with the DSB's recommendations and rulings were co nsistent with Japan's WTO obligations. Neither
a WTO panel, nor the Appellate Body had issued findings on a proposed measure. The DSU did not
give authority to a panel to make "advisory rulin gs". The United States stressed that the purpose of
this proceeding was not to consider whether poten tial future measures might comply with Japan's
WTO obligations; it was to determine whether the me asures Japan had already taken to comply were
consistent with the provisions of the WTO Agreements cited in the US request for a panel.
4.2 Japan emphasized that the Operational Criteria had all the characteristics of a "measure"
under the SPS Agreement. These Criteria were a "supplementary guideline" setting forth methods to
implement the Detailed Rules although they did not ta ke the form of an enforceable regulation. The
Operational Criteria addressed in particular the matt er of orchard inspection. These specifics of the
Operational Criteria had been arranged with the Unite d States in the form of a "Work Plan," and took
the form of administrative criteria of the Japanese Go vernment. Japan argued that if the Panel did not
consider the Operational Criteria it would be forced to either accept, or reject, the Detailed Rules
without information relevant to its interpretation.
4.3 The Operational Criteria described the following procedures:
(a) The objectives of the border zones of around 10 -meter width were two-fold. First, it
was designed to prevent branches of trees in side the "free area of fire blight" (as
provided for by the Detailed Rules, hereinaf ter "orchard") from overlapping, or being
in direct contact, with plants outside the orchard. The second objective was to
delineate the boundary of the export orchar d for which both authorities will ensure
the absence of fire blight symptoms acco rding to these criteria. The requirement
would be automatically met when the orchard was surrounded by passageways,
waterways or other equivalent zones of an around ten-meter width, as is normally the
case. Consequently, if there were zones of the equivalent width inside one orchard at
a certain location, each of the sections (b locks) surrounded by the zones would be
considered an independent orchard.
(b) No inspection of the border zone would be done as long as the border zone was not
used as cultivating grounds of host plants of the disease. This requirement would also
be met automatically when the orch ard was surrounded by passageways or
waterways.
(c) The annual inspection by the US (including confirmation by the US and Japanese
authorities) would be done only once, visually, by officials driving through an
orchard using a buggy car, inspecting the exterior of apple trees inside the orchard.

8 Operational Criteria for the Exportation of US Apples to Japan (Exhibit JPN-2).

(d) Inspection under (c) above was designed to detect only typical symptoms on large
branch(es). Suspected symptoms would then be laboratory-tested before they are
found positive.
(e) When a heavily blighted tree was found, only the particular section (block) within the
orchard would be disqualified, as long as the around 10-meter "border zone" (e.g., a
passageway or a waterway) surrounded the section. The rest of the orchard would
retain the status of a qualified export orchar d and would be treated equally with other
export orchards where no such tree was found.
(f) As long as a particular growing lot was su rrounded by a "border zone" of around 10
meters within an orchard, each such lot of any size would be considered an
"independent orchard" or a "section" for the purpose of determination under
(e) above, except for those varieties designate d as "least resistant" to the fire blight
disease by the USDA.
9 Sections for these varieties would have to be surrounded by
either a passageway, a waterway, a cliff or other natural barriers of around ten meters
in width.
4.4 The Detailed Rules had been formulated acco rding to the Japanese administrative law
practice. The Japanese laws and regulations s tipulated a general regulative mechanism, and
government authorities stipulated rules, guidelines and directives within their mandate. In this
respect, the Japanese laws and regulations were as consistent with the WTO Agreements, as those of
the United States, or of any other Member, which contained similar generic provisions.
4.5 The United States argued that since the Criteria was not currently in effect, it had not been
"taken" by the time of the establishment of the Pane l and so could not be within the Panel's terms of
reference.
4.6 Japan claimed that the Operational Criteria was a specific irrevocable offer and noted that if
the United States consented to these criteria Japan would be obliged to implement them. Japan argued
that the Operational Critieria was therefore a "draft measure" already offered to the United States, and
had therefore been "taken". Japan noted that a mere possibility of inconsistency with the WTO
Agreements of a measure did not make a prima facie case under the DSU; the "nullification and
impairment" requirement could not be pr esumed without the presence of violation. 10 If the
government authorities in charge of the matter expressed their intent to implement the measure only in
a manner consistent with the Agreements, the measure would be presumed to be consistent with them.
In this case, as noted above, Japan had irrevocably expressed its intent to follow the Operational
Criteria in relation to implementing the Detailed Rules.
4.7 The United States noted that the Operational Criteria were not among the "measures taken to
comply with the recommendations and rulings" wh ich Japan notified to the WTO, nor had Japan
referred to them in its 29 July request for arbitra tion under Article 22.6 of the DSU nor in its 30 July
statement to the DSB. Although Japan indicated that it had intended to discuss and agree to the
Criteria with the United States, the United States had first learned of the Operational Criteria when it
received Japan's first submission.
4.8 Japan responded that Operational Criteria we re a supplementary guideline, not an
independent legal instrument. Although the preci se wording, documentation and dissemination of the
Operational Criteria were completed as of the date of signature by the Director on 13 September 2004,

9 van der Zwet & Beer (1999). Disease cycle-Fire b light – Its nature, prevention and control. the US
Government Printing Office, Washington D.C., at. 41.
10 DSU, Article 3.8.

the Operational Criteria should be considered the embodiment and elaboration of the Detailed Rules,
which had been notified to WTO Members on 29 June 2004. Moreover, there was no issue of
transparency, because (i) the United States should have expected to see guidelines equivalent to the
previous Work Plan, and (ii) a summary of the Operational Criteria had been introduced at two
discussions held in March and May 2004 between Japan and the United States.
4.9 The United States recalled that bilateral discussions were undertaken on a confidential basis
and should not be disclosed in the context of the Panel proceedings.
2. Scientific Experts
4.10 The United States argued that experts need not be c onsulted in this proceeding because the
science relating to fire blight and apple fruit had not amended, clarified or altered the scientific
evidence at issue in this dispute si nce it had been evaluated by the Or iginal Panel. The United States
claimed that Japan's four new studies relating to appl e fruit and fire blight had failed to introduce any
new scientific evidence relating to either fire bli ght disease or to mature, symptomless apple fruit
exported from the United States.
4.11 Japan countered that Azegami et al. (2005) and Tsukamoto et al. (2005a) had presented a
new discovery relating to a possibl e infection route, and Tsukamoto et al. (2005b) had demonstrated,
under favorable ecological conditions, that the path way for transmission of fire blight would be
completed. The work of Kimura et al. (2005) had offered a fresh estimate of the probability of
introduction and establishment of the disease in Japan.
4.12 The United States argued that if the Panel were to decide to consult experts in this
proceeding, any such consultation should be limited to an evaluation of Japan's new studies rather
than a re-evaluation of science previously review ed. The United States noted that Japan's argument
hinged entirely on this new "science" rather than on the extensive scientific record and the Original
Panel's findings on that evidence
4.13 Japan noted that the revised PRA had taken into account evidence which had been available
before the Original Panel, as well as the new pieces of evidence. Japan argued that the Panel must
examine whether the evidence available at the time of the Original Panel as well as the new scientific
evidence had a rational relationship with the new measure taken by Japan.
B. THE MEASURE (OR MEASURES) AT ISSUE
4.14 Japan stated that Japanese law and other Minister ial regulations delegated authority to the
Director-General of the Ministry of Agriculture, Forestry and Fisheries (MAFF) in charge of food
safety and consumer affairs to create phytosanitary rules which would apply to apples from the United
States. In response to the recommendations and rulings of the DSB, the Director-General had
modified the Detailed Rules, and, through the Director of the Plant Protection Division, had
established the Operational Criteria. Modifications of other laws and regulations had not been
necessary since the parties' disagreement focused on the Detailed Rules and the Operational Criteria.
4.15 Japan presented its revised measure as consisting of six elements: (a) designation of an
export orchard; (b) a ten-meter border zone surrounding the orchard; (c) one annual inspection of the
orchard and the border zone; (d) surface sterilization of fruit; (e) sterilization of packing facilities;
and (f) sampling and export/import inspection.
4.16 The United States noted that Japan's original, WTO-inconsistent measure consisted of ten
elements. The United States noted that the only element that had been entirely eliminated from
Japan's import regime was the requirement that pack ing materials be sterilized, thereby leaving nine

of the ten elements of the original measure in place. The United States also noted that Japan's
assessment of the number of elements of the measure at issue in this proceeding was inconsistent with
the actual amendments it had made to its import regime for US apple fruit.
4.17 The United States noted that Japan had failed to include the requirement that apple fruit
destined for Japan be segregated from other fruit post-harvest in its description of the elements
included in its measure. The United States observed that by failing to address post-harvest separation
of apple fruit in its submission, Japan had failed to rebut the prima facie case raised by the United
States that the post-harvest separation requirement was maintained withou t sufficient scientific
evidence for purposes of Article 2.2.
4.18 Japan argued that the United States had not made a case against the separation requirement,
other than in relation to the disinfestation treat ment. The separation requirement still applied,
although it was not specific to fire blight but a natu ral extension of the other control requirements
(i.e., the orchard requirement and the border zone re quirement against fire blight and the fumigation
requirement against codling moth).
4.19 The United States observed that Japan still maintained the requirement that a US Official
certify that the apple fruit had been treated post-harvest with chlorine, and that Japanese officials must
confirm that US official certification and inspect packing facilities.
4.20 Japan maintained that these requirements were normal administrative procedures and did not
impose any additional restrictions on US apple exports.
C.
ARTICLE 2.2
1. General – Four new studies
4.21 In its first submission, the United States claimed that it was unaware of any scientific
evidence regarding apple fruit and fire blight that altered the evidence examined by the Panel two
years previously, or the conclusions drawn from that evidence. As before, the scientific evidence did
not establish that mature, symptomless apple fruit woul d either be infected with or harbor endophytic
populations of E. amylovora , nor did it establish that mature, symptomless apple fruit would be
epiphytically infested with populations of E. amylovora bacteria capable of transmitting fire blight. 11
Further, the scientific evidence did not establis h that apple fruit would serve as a pathway for
introduction of fire blight into Japan. 12 To the contrary, while the United States had shipped
approximately 53.5 billion apples world-wide over the last 37 years, there was no evidence of apple
fruit having introduced fire blight into a fire blight-free area.
13 Japan's revised measures were
maintained without sufficient scientific evidence in breach of Article 2.2.14
4.22 In its first submission Japan introduced four recently completed studies. The first study by
Azegami et al. (2005) had been commissioned in March 2003, initiated 7 August, 2003 and
completed 6 November, 2003. 15 The Journal of General Plant Pa thology had accepted this study on
11 August, 2004. The publication schedule had been changed from vol. 71, No.1, February 2005 to
vol. 70, No.6, December 2004.

11 Panel Report on Japan – Apples, paras. 8.136, and 8.171.
12 Panel Report on Japan – Apples, paras. 8.168, 8.171, and 8.176.
13 This statistic combines the last two years' apple exports from the US (572,258MT (2002),
528,309MT (2003)) with the 48.5 billion apple fruit fi gure presented by the United States in 2001 in the
Original Panel.
14 Panel Report on Japan – Apples, paras. 8.136, 8.168, 8.171, and 8.176.
15 Azegami et al. (2005). Invasion and colonization of mature apple fruit by E. amylovora tagged with
bioluminescence genes, J. Gen. Plant Pathol. (In press) (Exhibits JPN-6).

4.23 According to Japan the purpose of the Azegami study was to examine th e existing belief that
mature apples were immune from infection. Cont rary to the traditional view which focused on the
route through the calyx to the core, 16 Azegami et al. ( 2005) had found that mature, symptomless
apple fruit developed undetectable internal infec tion by the bacteria when inoculated with 10 4cfu or
105cfu of E. amylovora at pedicels and wounds. The bacteria spread and colonized along vascular
bundles a few days after inoculation.
4.24 The second study submitted by Japan, Tsukamoto et al. (2005a), had been commissioned in
March 2003, initiated 7 August 2003, and completed on 31 May 2004.17 This study had been received
by the Journal of General Plant Pathology on 23 August 2004 and was in the process of a second peer
review.
4.25 According to Japan, the Tsukamoto et al. (2005a) study examined the status of 142 apple fruit
infected through inoculation and held in storage at five degrees Celsius. All but two of the
142 infected fruit had been still infected after one mo nth of storage. Moreover, since the bacteria had
been found to survive in a latent state over six mont hs, survivability of the bacteria in mature apple
fruit during cold storage and shipment had been conclusively established.
4.26 The third study submitted by Japan, Tsukamoto et al. (2005b), had been commissioned in
March 2004, initiated 10 March 2004, and completed 31 May 2004. 18 The Research Bulletin of the
Plant Protection Service of Japan had accepted this study for publication on 21 October 2004.
4.27 According to Japan, in this laboratory study Japanese scientists had sought to find scientific
evidence of spread of the disease from the apple fru it. They had found that (i) normal flies fed on
apple fruit infected by fire blight bacteria and were later found to be contaminated by the bacteria, and
that (ii) flies contaminated by the bacterial suspen sion were able to cause fire blight on young pear
fruit and shoots through surface wounds.
4.28 The final study submitted by Japan, Kimura et al. (2005), had been commissioned in May
2004 and was composed of an overall review of the previous three studies rather than laboratory
experiments. The Journal of General Plant Pat hology had received this study on 8 September 2004
and it was currently undergoing its first peer review.
19
4.29 The United States claimed that the four new studies c ontained no new scientific evidence.
At best they repeated 50-year old results achieved under artificial conditions in Anderson et al.

16 Dueck (1974). Survival of E. amylovora in association with mature apple fruit, Can. J. Plant Sci. 54;
Roberts et al. (1989). Evaluation of mature apple fruit from Washington State for the presence of E. amylovora,
Plant Disease 73: 917-921; Roberts (2002). Evaluation of buffer zone size and inspection number reduction on
phytosanitary risk associated with fire blight and export of mature apple fruit, Acta Horticulture (Exhibit USA-
9). See also Hale et al. (1987). Occurrence of E. amylovora on Apple Fruit in New Zealand, Acta Horticulturae
217: 33-38 (Exhibit JPN-7).
17 Tsukamoto et al. (2005a). Infection frequency of mature apple fruit with E. amylovora deposited on
pedicel and its survival in the fruit stored at low temper ature, J. Gen. Plant Pathol. (forthcoming 2005) (Exhibit
JPN-8).
18 Tsukamoto et al. (2005b). Transmission of E. amylovora from blighted mature apple fruit to host
plants via flies, Res Bull. Plant Protection Service Japan 41 (forthcoming 2005) (Exhibit JPN-9).
19 Kimura et al. (2005). The probability of long-distance diss emination of bacterial diseases via fruit,
J. Gen. Plant Pathol. (forthcoming 2005) (Exhibit JPN-10).

(1952)
20, and were no more supportive of Japan's revised measure than the already extensive scientific
record examined by the Original Panel.
4.30 Japan maintained that Azegami et al. (2005) represented a clear departure from Anderson et
al. (1952), which had recovered fire blight bacteria from pear fruit which were inoculated over a
period of seven months. The Anderson study had conf irmed only that (i) pear could be infected with
a certain level of concentration of the bacteria and (ii) the bacteria could survive inside the host fruit
over the winter season. In contrast, Azegami et al. (2005) demonstrated that (i) mature apple fruit –
which were believed to be relatively resistant to the bacteria compared to pear fruit – could be easily
infected (ii) through pedicels which hitherto had not been consider ed an effective conduit of bacteria
into fruit.
4.31 The United States noted that the main conclusions claimed by the new studies were the
existence of: (1) mature, symptomless apple fruit latently infected with E. amylovora , and (2) a
pathway for introduction of fire blight into Japan fro m this latently-infected apple fruit. However, the
United States argued, the new studies failed to cont radict or amend the reams of peer-reviewed and
time-tested science on apple fruit and fire blight. As a result, they also
• failed to establish that there was such a th ing as a mature, symptomless yet latently
infected apple fruit or that a pathway for the introduction of fire blight via apple fruit
existed;

• failed to demonstrate that Japan's revised measures were not maintained without
sufficient scientific evidence; and

• failed to alter in any way the scientific evidence and previous findings on that
evidence.

4.32 Japan claimed that the new evidence not only reinfo rced Japan's position in this case, it also
pointed to a way to reconcile all available eviden ce and strengthen the findings and conclusions of the
Original Panel. The measure was designed to cope with the risk described by the experts advising the
Original Panel and more clearly identified by Japanese scientists. The evidence could not be found
insufficient unless the Panel required that a phytosanitary "risk" should be limited to those risks which
have been demonstrated to have occurred, desp ite the absence of supporting precedents and despite
the experts' caution against exportation from "(severely) blighted" orchards.
4.33 In addition, Japan contended that the United States had not made any attempt to establish how
the apple fruit produced and processed through its current practice (i.e., the commodity it calls
"mature, symptomless") would indeed meet the "mature, symptomless" apple fruit criteria of the
Original Panel. As Japan had basically accepted the findings and conclusions regarding "mature,
symptomless" apple fruit of the Original Panel, in this proceeding the fundamental factual claim the
United States should have made was that the US apple fruit as produced and processed under the
current US practice would indeed be "mature, symptomless." In the absence of such evidence, the
United States had neither established a prima facie case of violation of the SPS Agreement, nor
proven the presence of nullification or impairment of its interests.

20 Anderson, H.W., "Maintaining Virulent Cultures of Erwinia amylovora and Suggestion of
Overwinter Survival in Mummied Fruit", Plant Disease Reporter, Vol. 36, No. 7 (July 15, 1952) (Exhibit USA-
18).

(a) Mature, symptomless apples
4.34 The United States noted that in making its findings the Original Panel had analyzed the
scientific evidence relating to apple fruit and fire bli ght. Its analysis was based in part on the written
and oral statements of scientific experts on the scien tific evidence on fire blight and apple fruit. The
scientific experts had concluded that: there was no sc ientific evidence that mature apple fruit harbor
endophytic populations of fire blight bacteria 21 or that E. amylovora occurred as an endophyte in
healthy-looking fruit;22 scientific evidence did not establish that a mature apple fruit could be infected
with fire blight;23 scientific evidence demonstrated that even apple fruit that were harvested very close
to sources of inoculum were not infested with significant populations of epiphytic bacteria; 24 there
was no scientific evidence that, in the rare event that a mature fruit w as infested with bacteria in the
calyx that the inside of the apple fruit would subsequently be infected; 25 there was no scientific
evidence that calyx-infested apple fruit would transmit fire blight; 26 there was no scientific evidence
that mature apple fruit had ever been the means of introduction of fire blight into an area free of the
disease;27 and the scientific evidence did not establish that any pathway for introduction of fire blight
via apple fruit, whether mature or immature, would be completed.28
4.35 Japan claimed that the new evidence, which had not been available at the time of the Original
Panel, demonstrated that the probability of inf ection of mature apples was higher than expected,
because mature apple fruit were not physiologically immune from infection through the pedicels. The
probability of latent infection of mature apple fruit would depend on the phys iological conditions and
activities of the bacteria from August to the end of the maturing process. A ccording to the evidence
available, the physiological activity of the bacteria inside the trees did not appear to be declining
during this season. For example, Norelli et al. (2001) had reported that the inoculation of scions in
May resulted in recovery of the bacteria on 30 August from the internal tissue of the rootstock,
suggesting the bacterial activity was still recognizable during the late growing season.
29 This could
have explained recovery of E. amylovora from inside Utah apple fruit on 27 September.
4.36 The United States argued that Norelli et al. does not report the results relied on by Japan, and
that the Norelli study simply does not stand for or support the notion that E. amylovora is moving
about within the tree all year long. In fact, accordi ng to the United States, it is so well known that fire
blight activity slows down as the summer progresses that it is difficult to find literature to specifically
document the phenomenon. Primarily during discussions of the disease cycle, the authors mention,

21 Panel Report on Japan – Apples, para. 8.125; Panel Report on Japan – Apples, Transcript, Annex 3,
paras. 28, 29 (Dr Hale), 54 (Dr Smith), 57 (Dr Geider), 59 (Dr Hale), 63 (Dr Geider), 75, 76 (Dr Hayward), 80
(Dr Geider), 82 (Dr Hale), and 360-363 (Drs Geider, Hale, Hayward, and Smith).
22 Panel Report on Japan – Apples, para. 8.126; Panel Report on Japan – Apples, Transcript, Annex 3,
paras. 59 (Dr Hale), 76 (Dr Hayward), and 82 (Dr Hale).
23 Panel Report on Japan – Apples, paras. 8.138-8.139, and 8.171.
24 Panel Report on Japan – Apples, Transcript Annex 3, paras. 223-236 (Drs Hale, Geider, Smith, and
Hayward).
25 Panel Report on Japan – Apples, para. 8.117; Panel Report on Japan – Apples, Transcript Annex 3,
paras. 364-367 (Drs Geider, Hale, Hayward).
26 Panel Report on Japan – Apples, para. 8.147.
27 Panel Report on Japan – Apples , Transcript, Annex 3, paras. 382-385 (Drs Geider, Hale, and
Hayward), 332 (Dr Hayward); Panel Report on Japan – Apples , paras. 6.20-6.23, 6.31, and 6.37-6.40. The
Original Panel noted that the experts "categorically stated that there was no evidence to suggest that mature
apples had ever been the means of introduction (entry, establishment and spread) of fire blight into an area free
of the disease." Panel Report on Japan – Apples , para. 8.149. Further, the Panel points out, as noted by Dr
Smith, that "not only was there no evidence that fruits had ever introduced fire blight into an area, but there was
no necessity to invoke such an improbable pathway since there were much more probable alternatives." Panel
28 Panel Report on Japan – Apples, paras. 8.149, 8.166, 8.168, 8.171, and 8.176.
29 Norelli et al. (2000). Fire blight of apple rootstocks, New York Fruit Quarterly 8:1-5.

e.g., that " [r]enewal
of bacterial activity in the spring in the margins of indeterminate cankers ( i.e.,
cankers without pronounced margins) results in extension of the cankers".30 Japan's inference that fire
blight activity does not decline during the growing season is factually incorrect and unsupported by
the results of Norelli et al. (2001). Furthermore, the Momol/Norelli paper provides no data to support
an assertion that natural movement of E. amylovora into maturing apple fruit occurs in the later
phases of the growing season.
4.37 In addition, Japan argued that the risk of latent infection of "mature, symptomless" apple fruit
through pedicels was real, at least under experiment al conditions. If the phytosanitary measure were
to rely entirely on the inspection/sorting process of apple fruit, as the United States asserted, the risk
of detection error would be more seri ous than the Appellate Body had thought.
31 This finding of the
Appellate Body, highlighting the difficulty of detec ting every infection only from apparent symptoms
in apple fruits, supported Japan's position that controls were necessary at the orchard level to address
potential detection errors.
Azegami et al. (2005)

4.38 According to the United States, the fundamental flaw of the Azegami paper was its assertion
that the results of the experiment demonstrated that E. amylovora would invade and colonize mature
apple fruit. The Azegami study instead demonstrated that inoculation of (a) fruit pedicels that were
cut more than four days after harvest, or (b) fruit- bearing twigs with mature fruit still attached, and
therefore having uninjured fruit pedicels, did not result in the movement of E. amylovora into the
stems or fruit cortex of mature apples. Only by removing the abscission layer from the end of fruit
pedicels situated at the furthest point from the apple fruit and then placing high levels of inoculum on
the cut end of the pedicel were the researchers able to demonstrate bioluminescence, and therefore the
presence of the marked strain of E. amylovora , within the stem and fruit. The United States
concluded that the Azegami study appeared to confirm that it was only under the experimental
conditions of the study that E. amylovora bacteria could be isolated inside apple fruit.
4.39 Japan noted that Azegami et al. and the Tsukamoto et al. (2005a) studies did not use high
levels of inoculum but showed infecti on with the bacteria at the level of 10 4 or 10 5 cfu. In addition,
this was the level generally believed to be sufficient to infect pear flowers, least resistant hosts of the
bacteria.
4.40 The United States explained that the abscission layer act ed as a natural barrier to desiccation
and invasion of the fruit by micro-organisms. The effectiveness of the abscission layer as a barrier
had been demonstrated in the "Results and Discussi on" sections of the Azegami paper, where it had
been reported that, for the 60 fruit still attached to the (wound inoculated) fru iting spurs, "a luminous
area was observed on the abscission layer of one fruit eight days after inoculation but not on any fruit"
and that "pathogen progress stopped at this layer in the experiment." The United States concluded
from these results that, because the apple fruit had b een mature with intact abscission layers, the
abscission zone had acted as a physical barrier to the movement of E. amylovora into the apple fruit.
The Azegami paper's conclusion that "the possib ility that the pathogen may pass through the layer
cannot be excluded," was contradicted by the study's own data.
4.41 Japan explained that Azegami et al. (2005) showed that the water passed through vascular
tissue and that this potential infection route woul d remain active until the formation of the abscission
layer. Noting that the crucial issue therefore was the timing of formation of the layer, Japan referred

30 van der Zwet, T. and Beer, S.V., Fire Blight – Its Nature, Prevention, and Control: A Practical Guide
to Integrated Disease Management, USDA, Agriculture Information Bulletin No. 631. (Emphasis added).
31 Appellate Body Report on Japan – Apples (WT/DS245/AB/R), para. 160. This risk was found
"legitimate" by the Original Panel.

to studies which showed that the abscission layer w as formed and completed toward the final stage of
ripening of apple fruit and that the vascular tissue would remain an active conduit for introduction of
the bacteria into apple fruit until the very late stage.32 Japanese scientists conducted a further study on
this matter, and demonstrated that fire blight bacter ia can infect apple fruit latently from fruit bearing
twig through abscission layer at the time of fruit maturation.33
4.42 Japan also contended that contrary to the as sertion of the United States, the activity of the
bioluminescence genes inserted into E. amylovora had been observed inside the apple fruit after
inoculation through the pedicels in this study. Since the bioluminescence genes were known to be
active during the stage of logarithmic reproduction of the bacteria, this observation showed that the
bacteria were actively reproducing in their colonies.
4.43 The United States noted that the Azegami paper purported to demonstrate the "invasion" of
fire blight bacteria into the fruit. However Azeg ami had successfully introduced fire blight bacteria
into the apple fruit through the pedicel only when the pedicel and its abscission layer were severed
and a suspension of bacteria placed on the wound. US researchers had conducted an experiment
demonstrating that transpiration (rather than activ e invasion) could cause a suspension applied to the
severed pedicel to be sucked into the apple fruit. US researchers pl aced an inert dye (Methyl blue) on
the cut pedicel of a mature apple fruit. While this non-living dye was incapable of "invading" an
apple fruit, the dye, like the bioluminescence in Azegami et al. (2005), had entered the fruit and had
spread into the vascular bundles. This result could on ly have been attributable to the dye being drawn
into the fruit through transpiration, demonstrating th at spread of either bioluminescence or dye into
apple fruit was as likely a consequence of the cut- pedicel method and transpiration as a result of
active colonization and invasion by bacteria.
4.44 Japan described the US dye study as an example of an additional route for fire blight passage
into mature apple fruit, distinct from that observed in Azegami. Japan emphasized that Azegami et al.
(2005) showed isolation of a far higher number of bacteria colonies from the apple fruit infected by
this method and thus multiplication of the bacteria (infection).34
Tsukamoto et al. (2005a)

4.45 The United States commented that like the Azegami et al. study, the Tsukamoto et al.
(2005a) study had employed the cut-pedicel method to inoculate apple fruit. Although it cited
Azegami et al. in support of its findings and conclusions, Tsukamoto et al. (2005a) made repeated
reference to the inoculum being deposite d on the fruit pedicel in the Azegami study without
referencing the fact that the abscission layer of the pedicel had been artificially removed . The United
States argued that the conclusion of Tsukamoto et al. (2005a) that "[t]his investigation showed that E.
amylovora can infect mature apple fruit from pedicels and can survive more than six months at
5 degrees Celsius" was a misstatement.
4.46 Japan claimed that results from the Tsukamoto et al. (2005a) study showed that bacteria had
the ability to survive the period of a few months under cold conditions, which corresponded to the

32 Takishita et al. (1992). Effect of 2, 4-DP on the formation of the abscission layer in mature apple
pedicel. Bull. Fruit Tree Res. Stn. 23: 111-121 (in Japanese). Lang (1990). Xylem, phloem and transpiration
flows in developing apple fruits, J. Experimental Botany 41: 645-651. Lang & Ryan (1994). Vascular
development and sap flow in apple pedicels, Ann. Botany 74: 381-388. Oberly (1973). Effect of 2,3,5-
triiodobenzoic acid on bitter pit and calcium accumulation in ‘Northern Spy' apples, J. Amer. Soc. Hort. Sci. 98:
269-271.
33 Azegami et al. (2004). Entry of Erwinia amylovora into apple fruit from fruit-bearing twig through
abscission layer at the time of fruit maturation. Personal Communication (Exhibit JPN-16).
34 The level is 3.5 x 107 to 6.3 x 108 cfu per 1 cubic centimeter of apple fruit. And 1.1 x 105 to 5.8 x 108
cfu per 1 cubic centimeter of apple fruit.

period and temperature conditions of US apple fruit during handling, cold storage and shipment to
Japan.
4.47 The United States countered that in Tsukamoto et al. (2005a), the artificially inoculated fruit
had been held under conditions of high relative humidity (in enclosed steel or plastic boxes) for nine
days at 25 degrees Celsius before being placed under re frigeration at 5 degrees Celsius. It had long
been recognized that a delay in cooling of this ma gnitude would have a severe ly deleterious effect on
the quality and storability of commercial apple fruit.
35 The United States argued that the results of
Tsukamoto et al. (2005a) could not be presumed to pred ict what would happen under commercial
conditions because:
(a) Commercial apple fruit were not wounded and artificially inoculated after harvest.
(b) Commercial apple fruit were cooled to storage temperature (-1 to 4 degrees Celsius,
but more fruit were stored at 0 to 2 degrees Celsius) as quickly as possible, with
nearly all of the apple fruit being placed in to refrigerated storage within 24 hours of
harvest. In other words, they were not subjected to the nine-day incubation period as
was the case with the apple fruit in Tsukamoto et al. (2005a).
(c) Development of fire blight disease in mature, symptomless apple fruit was not known
to exist.
(d) Multiple scientific papers had reported the absence of E. amylovora inside thousands
of mature, symptomless apple fruit harvested from or adjacent to severely blighted
trees, indicating that the phenomenon of infection through the pedicel described in
Azegami et al. and Tsukamoto et al. (2005a) was an artifact of laboratory
experimentation.
36
4.48 Japan stated that Azegami et al. (2005) and Tsukamoto et al. (2005a) did not necessarily
contradict the results of Roberts (2002), which had not isolated any bacteria from 100 apple fruit
harvested from the blighted trees.
37 The results of the Roberts (2002) study showed that even apples
harvested from blighted trees did not necessarily show bacteria inside their core. However, according
to Japan, Roberts (2002) had not investigated the st em of apples, the likely part of infection when
bacteria enter through the pedicels. Moreover, since the study had focused on mature, symptomless
apple fruit, it had assumed that infection from surface wounds, a risk which would be more significant
in a blighted orchard, would be detected.
4.49 The United States countered that, contrary to Japan's argument, several previous studies,
including Roberts (2002), had in fact analyzed th e stems, calyx tissues and cortex (flesh) tissues of
mature apple fruit. Indeed, the Dueck and Robe rts studies explicitly note that these tissues were
analyzed.

35 Hardenberg, R.E. et al . (1986), The Commercial Storage of Fruits, Vegetables and Florist and
Nursery Stocks, Agriculture Handbook No. 66, United States Department of Agriculture.
36 Roberts, 1989, 2000; Dueck, 1974.
37 R.G. Roberts, Evaluation of buffer zone size and inspection number reduction on phytosanitary risk
associated with fire blight and export of mature apple fruit, Acta Horticulturae 590 (2002) (Exhibit USA-9).

(b) Pathway for transmission of the disease
Tsukamoto et al. (2005b)

4.50 Japan recalled that the Original Panel had conclude d, on the basis of the evidence before it at
the time, that it had not been established with suffici ent scientific evidence that the last stage of the
pathway (i.e. the transmission of fire blight to a host plant) would likely be completed (see paragraph
4.7). However Tsukamoto et al. (2005b) had demonstrated that the completion of the pathway in
Japan was more likely than thought at the time of the Original Panel. In the context of this
experiment, "mechanical injuries" of pear fru it represented normal scars or bruises resulting from
accidental damages possibly through being hit or touched by twigs or branches.
4.51 The United States responded that the Tsukamoto et al. (2005b) paper had not demonstrated
that: (1) greenbottle flies had acquired cells of E. amylovora from infected fruit of their own volition,
i.e., that they had acquired bacteria when not artific ially forced to associate wi th infected apple fruit;
(2) the flies directly or indirectly vectored E. amylovora from the infected fruit to the susceptible host
material; or (3) infection and disease development ha d been a result of a natural interaction between
the flies and the host material (i.e., feeding inju ry), and had not been dependent on artificial
mechanical injury. The methods employed in the study were so far removed from what might
actually take place under production orchard conditions that the resulting data was not useful in
assessing the risk of transmission of fire blight or determining a probabilistic estimate of a real world
event.
4.52 Japan countered that three elements of the Tsukamoto et al. (2005b) experiment
methodology captured natural ecological conditions. First, flies endemic to Japan were known
vectors of fire blight disease.
38 Second, Japanese pear fruit, which were highly susceptible to E.
amylovora, were cultivated in pergola training syst ems for commercial purposes and thus were
realistically representative of Japanese host plants. Moreover, the timing of apple fruit
importation/consumption and that of pear fruit growth coincided: US apple fruit were imported and
distributed from January to July, wh ile Japanese pears were either at the blossom stage, fruitlet stage
or shoot stage during April to July. Japan argued that it was plausible to assume that a certain
percentage of these fruits would be damaged durin g the growth phase, exposing the fruit juice which
would attract flies. The choice of wounded pear fruits as the host plant thus reflected plausible
ecological conditions prevailing in Japan. Finally, th e level of contamination of flies by the bacteria
in the second phase of the experiment was approxima tely equal to the level observed in insects found
in blighted orchards in natural conditions.
39
4.53 Japan further commented that the major discoveries of this study were that (i) flies had easily
fed on infected apple fruit and were subsequently contaminated by the bacteria at the level of 7.6 x
101 to 8.3 x 10 2 cfu, a level high enough for suitable host plants to be infected, and that
(ii) contaminated flies had fed on suitable host fruit and left a sufficient number of bacteria to infect
the new host. With these two discoveries, it was logical to conclude that the combination of
(i) infected apple fruit, (ii) flies and (iii) suitable host plants posed a risk of completion of a pathway
of the disease into Japan. In order to argue otherw ise, Japan claimed, the United States would need to
demonstrate that there was a methodological error in the experiment.

38 Thomson (1992). Fire blight of apple and pear, in "Plant diseases of international importance,
Diseases of fruit crops", vol. 3 (Kumar et al. ed), Thomson (2000). Epidemiology of fire blight, in Fire blight:
The disease and its causative agents, Erwinia amylovara (Vanneste, ed.). In Tsukamoto et al. (2005b), 5.0×101
to 5.5×102 cfu (2.6×102cfu on the average) of fire blight bacteria were recovered from flies using M-MS Plates,
and the colony formation unit on flies is estimated to be 7.6×101 to 8.3×102cfu (3.9×102cfu on the average).
39 Miller & Schroth (1972). Monitoring the epiphytic population of Erwinia amylovora on pear with a
selective medium, Phytopathology 62: 1175-1182.

4.54 Japan expressed confidence that additional experiments would show that flies would
successfully feed on infected apple fruit and subseq uently infect pear fruit. Japanese researchers had
replicated the second phase of the experiment three ti mes, and flies covered with bacterial suspension
had fed on pear fruit and infected the host each time . Japan argued that in the absence of unknown
intervening factors that would prevent flies from feeding on the pear fruit, the process of direct
infection via flies from infected apple fruit to pear would be completed.
4.55 Japan acknowledged that the US comments on experimental conditions might raise a valid
issue regarding the level of likelihood of occurrence of infec tion. However, the United States had
failed to challenge experiment's conclusion that in fection had occurred. Moreover, the possibility of
fire blight transmission via flies in natural cond itions had been suggested in numerous reports and
handbooks.
40
4.56 The United States argued that the Tsukamoto experime nt does not demonstrate that flies
contaminated with fire blight bacteria as a resu lt of contact with infected fruit will transmit the
bacteria to host materials. An assumption and ho pe that the desired results will eventually be
achieved through manipulation of methodologies and repeated attempts does not mean that, for
purposes of the evaluation at hand, those results have ev er or would ever occur. Japan's desire did not
amount to scientific evidence, and did not add anythi ng to the Panel's evaluation of Japan's measures
(other than to reiterate the fact that despite its hop es to eventually achieve this result, Japan fails to do
so). That Japan claims that the actual evidence (results) from the experiment (which were negative)
supports (or faith that future studies will support) the conclusion that the pathway will be completed is
completely outside the bounds of logic and the exercise of the scientific method.
Kimura et al. (2005)

4.57 The United States noted that the Kimura study ch aracterized Azegami's work as
demonstrating that mature apple fruit were easily infected through a "small bruise" or "minute scars"
on the fruit as well as "the possibility of infection of fruit from pedicels through fruit bearing
branches." In fact, Azegami's method had been to e ither cut off the abscission layer of the apple fruit
pedicel or to make multiple wounds on the shoulder or calyx in the presence of high inoculum doses.
Further, the Kimura paper concluded that "even at a stage where apple fruit get ripe, it is likely
enough that E. amylovora in fruit bearing branches will infect the inside of apples." This conclusion
clearly assumed that infection was occurring through the tissues of the pedicel. As noted above, the
Azegami paper had not demonstrated that such in fection (through the pedicel/abscission layer of a
mature apple fruit) was possible. In fact, the Azegami study appeared to demonstrate just the opposite
by noting that bioluminescence did not penetrate the pedicels of mature apple fruit.
4.58 Japan countered that the United States ' central critique of Kimura et al. (2005) rested on its
reliance on Azegami et al . (2005) and Tsukamoto et al. (2005a, b). As these studies were sound,
contrary to the United States' critique, Kimura's conc lusions remained valid to the extent they relied
on these pieces of new evidence. For example, the United States argued, "[t]he Azegami study
appears to demonstrate just the opposite by noting that bioluminescence did not penetrate the pedicels
of mature apple fruit."
41 On the contrary, the bioluminescence genes were observed to be active
inside the apple tissue in this study. The genes were active during the stage of logarithmic
reproduction, and this observation showed that the ba cteria were actively reproducing inside the apple
tissue. Similarly, the abscission layer was known to be formed and completed toward the final stage
of ripening of apple fruit and the vascular tissue would remain an active co nduit for introduction of
the bacteria into apple fruit until the very late stage.

40 van der Zwet & Keil (1979), Miller & Shroth (1972), Thomson (1992, 2000).

4.59 The United States further recalled that Kimura et al. cited Tsukamoto et al. (2005b) for the
proposition that E. amylovora had been recovered from the "flesh" of apple fruit and not from the
core, alleging that previous studies only sample d core tissues and therefore failed to identify
E. amylovora in the apple fruit. However the vascular bundles in which E. amylovora had been
detected in the Tsukamoto et al. (2005b) study were contiguous with the vascular tissues of the apple
fruit core. Furthermore, Kimura et al. mischaracterized the results of previous studies, as Roberts et
al. (1989) had in fact reported that "[c]ore and cortex [i.e., flesh] tissues, including the stem, if
present, and the entire calyx were removed by p assing an ethanol-flamed cork borer through the
vertical axis of each fruit." Theref ore, the studies described in Roberts et al. (1989) had examined a
portion of the apple fruit that included the "flesh" discussed in Azegami, Tsukamoto, and Kimura.
4.60 The United States claimed that results in Azegami et al. , which demonstrated that
E. amylovora did not move into mature apple fruit if the ab scission layer of the pedicel had been left
intact, unequivocally supported the results from Roberts et al. (1989), that E. amylovora were not
present in mature apple fruit even when harvested from branches or fruiting spurs with fire blight
disease.
4.61 Japan argued that Kimura et al. (2005) suggested an alternative explanation of the absence of
the bacteria in the core of 1,555 apples in Roberts et al. (1989) – the bacterial introduction to apple
fruit could be through pedicels, vascular tissue and cortex (flesh), rather than through calyx to the
core. While Roberts et al. (1989) had probably studied part of cortex, its methodology had clearly not
been designed to evaluate the potential introduction of bacteria from pedicels. There was no way to
tell whether or not the bacteria were indeed not prese nt inside the entire apple tissue. However, Japan
argued, to make that assertion without evidence did not add any scientific weight to the US argument.
Indeed, Kimura et al., using the results from Tsukamoto et al. (2005b), had found that the quantitative
risk of transmission of the disease by apple fruit was not insignificant.
4.62 The United States noted that Japan acknowledged that E. amylovora would not be isolated in
the cores of mature, symptomless apple fruit, but rath er in vascular bundles, or "flesh". At the same
time, the Kimura study argued that the pathway for in troduction of fire blight would consist of either
discarded apple cores or apple peels because Japan ese consumers consume the flesh (cortex) of the
apple fruit, thus contradicting its own findings.
4.63 Japan contended that the conclusion of Kimura et al. (2005) did not contradict its findings.
Both Azegami et al. (2005) and Tsukamoto et al. (2005a) showed a presence of the bacteria along the
internal surface of apple fruit. 42 It was customary in Japan to peel and eat apple fruit and discard the
peel and the core as garbage, leaving the inocul um for the environment to feed on. Tsukamoto et al.
(2005b) discussed the later stage of introduction a nd establishment in suitable hosts, with flies a
possible vector, successfully demonstrating that, under plausible ecological conditions, the pathway
would be completed.
4.64 The United States also claimed that Kimura et al. mischaracterized the results of Tsukamoto
et al. (2005b) by stating that greenbottle flies "gathere d" to blighted fruit. Rather, according to the
methodology described in Tsukamoto et al. (2005b), flies had been imprisoned with blighted fruit
inside a small enclosure, and were not allowed to forage freely. Kimura et al. further
mischaracterized the Tsukamoto et al. (2005b) study by noting that the greenbottle flies "feasted" on
infected apple fruit and then flew to pear fruitlets . Instead, greenbottle flies had been sedated and
immersed in a suspension of inoculum before be ing exposed to wounded pear fruitlets in a small,
enclosed space. Moreover, the fli es that were trapped in an enclo sed space with infected fruit had not
transferred bacteria to host tissue.

42 Azegami et al. (2005) figure 1. (Exhibit JPN-6); Tsukamoto et al. (2005a) (Exhibit JPN-8).

4.65 According to the study, 10 per cent of the total household garbage in Japan that is thrown out
of doors consists of apple cores. The United Stat es noted that this seemed to be a very high estimate
for a commodity that was not a staple of the Jap anese diet, but was instead considered a specialty
item. The United States further commented that th e Kimura study proposed a probability estimate for
introduction of fire blight into Japan via apple fruit that was almost four times greater than the risk
posed through importation of infected nursery stoc k (historically recognized as a potential pathway
for the disease). Kimura et al. estimated the risk of nursery/root stock introducing fire blight into
Japan at once every 1,898 years, once every 1,781 years in scions or buds, and "once every 565 years
or so in fruit." Not only did this probability estimate attempt to demonstrate that apple fruit presented
approximately four times the risk of introducing fire blight as nursery stock, it contradicted the study's
own conclusion that "[a]ccording to our estimation of probabilities of establishment of fire blight, the
descending order of magnitude is as follows. Nursery stock and/or rootstocks > Scions and/or buds >
Fruit." The United States questioned also the assu med infection rate of im ported apple fruit (100 per
cent) and the assumed number of apple cores discarded out of doors by Japanese consumers.
4.66 Japan countered that the study had not assumed that "10 per cent of the total household
garbage in Japan that was thrown out of doors consis ts of apple cores." The percentage used in the
multiplicative model represented the parametric assu mption that 10 per cent of the total households'
garbage disposed of by households would be th rown away outdoors. The scenarios of Kimura et al.
corresponded to the ones assumed by Roberts et al. (1998). In Kimura et al., the risk of establishment
of fire blight in Japan by apple fruit was once ever y 1,898 years or so in Scenario 1 (when the export
orchard was surrounded by a 500-meter buffer zone; orchard inspections were conducted three times
per a year, namely at the blossom season, the fr uitlet season and the harvest season; and the chlorine
treatment of fruit surface was conducted), once every 1, 781 years or so in Scenario 2 (when no buffer
zone was established; and one orchard inspection was conducted per year at the harvest season, and
the fire blight strikes might occur on 1 per cent or less of the trees in the orchard, but apples from
infected or adjacent trees could not be exported), and once every 565 years or so in Scenario 3 (no
phytosanitary requirement implemented for Erwinia amylovora).
4.67 In addition, Japan claimed, Tsukamoto et al. (2005b) and Kimura et al. (2005) showed that
completion of the pathway by flies was not a theoreti cal risk but a real one. The vector was capable
of carrying a significant amount of bacteria to Japanese pears, a host which is widespread in urban
areas, and the arrival and distribution of US apple fruit coincided with the flowering or fruitlet seasons
of these hosts. Notably, the process of infection from infected apple fruit to Japanese host plants was
the only part of the pathways, for which the Orig inal Panel found that Japan's evidence was not
sufficient to counter the argument of the United States. Japan argued it was the United States'
responsibility to establish, with further evidence, that the pathway would nevertheless not be
completed.
2. Scientific evidence and the components of Japan's measure
4.68 The United States claimed that in light of the scientif ic evidence and the DSB findings based
on that evidence, it was clear th at Japan's current measures on imported US apple fruit, whether
considered cumulatively or singly, were mainta ined without any scientific evidence, let alone
sufficient scientific evidence. Those findings indicat ed that the scientific evidence does not establish
that mature, symptomless apple fruit, the commodity exported by the United States, would be infected
by or harbour endophytic populations of fire blight bacteria, or infested with epiphytic populations of
fire blight capable of transmitting the disease. Fu rther, each of Japan's measures was premised on the
unscientific, hypothetical scenario that a pathway fo r introduction of fire blight via apple fruit
imported from the United States could be completed.
4.69 Japan noted that despite the strong rhetoric in the US submissions, the practical gap was not
as large as it appeared. In this context, Japan requested that, should the Panel find any part of the new

measure to be unsatisfactory, the Panel make a sp ecific ruling on what it finds unsatisfactory and how
that could be brought to its satisfaction in respect of Article 2.2, in accordance with Article 19.1 of the
DSU.
Pre-Harvest Requirements

(a) Fruit must be produced in designated fire bli ght-free orchards. Designation of a fire blight-
free area as an export orchard is made by the United States Department of Agriculture upon
application by the orchard owner. Currently, the designation is accepted only for orchards in
the states of Washington and Oregon
4.70 The United States argued that the scientific evidence relating to fire blight and apple fruit did
not establish that mature, symptomless fruit would be infected with, harbor endophytically, or be
epiphytically-infested with populations of E. amylovora capable of transmitting fire blight. The same
evidence did not establish that apple fruit would act as a pathway for introduction of fire blight. In
fact, there was no scientific evidence that even fruit fro m a tree infected with fire blight posed a risk
of transmission of fire blight if the fruit was mature (and therefore symptomless).
43 Therefore, the
United States concluded, there was no rational re lationship between the scientific evidence and
Japan's requirement that apples be sourced from fi re blight-free orchards. Accordingly, Japan's
measure requiring fire blight-freedom in export orch ards was maintained without sufficient scientific
evidence within the meaning of Article 2.2.
4.71 The United States noted that Japan had attempte d to include in its revised measures certain
Operational Criteria which ostensibly amended Japan 's "fire blight-free orchard" requirement to one
of disqualification of an export orchard if a severely blighted tree was identified in a visual inspection.
While the United States stressed that the Operational Criteria were not a part of the measure properly
before the Panel in this proceeding (as described above), the Operational Criteria did not change the
analysis of Japan's measure, becau se the inspection requirement set out by the Criteria essentially
became a requirement of a fire blight-free orchard.
4.72 The United States emphasized that the same scientific evidence that did not support a
requirement of fire blight-freedom in orchards did not support a measure restricting fruit from
severely blighted orchards.
44 For example, even if an apple fruit harvested from a severely blighted
orchard possessed epiphytic bacteria in its calyx, th e scientific evidence did not establish that those
bacteria would be present in populations capable of transmitting fire blight. Similarly, because the
apple fruit harvested from the orchard would be ma ture, symptomless fruit, the scientific evidence did
not establish that they would be infected with or harbour endophytic populations of E. amylovora.
4.73 Japan recognized that Azegami et al. (2005) and Tsukamoto et al. (2005a) did not establish
that all US apple fruit posed an equally significant risk. The studies showed that the probability of
infection from the pedicel or surface wounds of mature apple fruit depended on the conditions and
activities of fire blight bacteria during the late s eason. If activities of the bacteria, which were known
to peak during the flowering and fruitlet seasons, rema ined relatively dormant after the spring, apples
which harboured the bacteria at a certain level w ould be likely to develop symptoms well in advance
of maturity, as the Original Panel had noted.45 However, no evidence suggested that this was the case,

43 Panel Report on Japan – Apples , paras. 8.189, and 6.134-6.135 (Dr Hale noted that the 2000 joint
study conducted by the United States and Japan had shown that "fruit harvested from blighted trees or adjacent
to blighted trees had not harboured E. amylovora."). See R.G. Roberts, Evaluation of buffer zone size and
inspection number reduction on phytosanitary risk associated with fire blight and export of mature apple fruit ,
Acta Horticulturae 590 (2002) (Exhibit USA-9).
44 Dr Hale's study had defined an orchard with 75 infected strikes per tree as being "(severely)
infected".
45 Panel Report on Japan – Apples, para. 8.138.

and the question of whether or not bacteria could still infect the apple fruit through the pedicels or
wounds late in the season depende d on various conditions. Japan c oncluded that the potential of
infection of mature apple fruit through pedicels or surface wounds would be more pronounced when
the tree was severely blighted. Indeed, the Original Panel found:
[T]he experts considered, inter alia, that it would be appropriate not to export apples
from (severely) blighted orchards and that they would not be comfortable with a
complete and immediate removal of the phytosanitary measures imposed by Japan,
given the phytosanitary situation of that Member.
46 (footnotes omitted)

4.74 The United States commented that Japan's first written submission confirmed that its original
and revised measures had not been and were not s upported by the scientific ev idence as evaluated by
the Original Panel; Japan did not attempt to ju stify its measures based on the Original Panel's
findings and the scientific evidence examined in the Original Panel proceeding. Rather, Japan relied
on "new evidence" in the form of new studies in an attempt to show that its import regime for US
apple fruit was rationally or objectively related to the scientific evidence. The United States noted
that Japan stated that the new experiments provi ded "a scientific underpinning of the concern over
(severely) blighted orchards," which had been e xpressed by the Original Panel based on the experts'
opinions. The United States maintained that Japan needed to draw a clear distinction between the
experts' opinions expressed at the meeting and the "scientific evidence" as is generally known.
4.75 Japan argued that if the opinions of the experts of the Original Panel did not constitute
scientific evidence per se , they did reflect their interpretation of available scientific evidence. For
instance, when Dr Hale had stated that one inspection was a reasonable requirement,
47 he was not
talking about his personal preference but giving his scientist's judgment in the matter. Japan
contended that the common concern expressed by the scientific experts over shipment of apple fruit
from a (severely) blighted orchard indicated their common interpretation of the available evidence.
4.76 The United States argued that in conducting new studies on the scientific issues in this
dispute, Japan appeared to have directed its efforts at supporting the conclusion that apple fruit should
not be exported from severely blighted orchards . The United States noted that Japan referred to
statements by some of the experts as "advising" this result, ignoring the views of those very same
experts on the scientific evidence, and the ultimate pa nel findings on that evidence. Further, the
United States claimed, Japan had not apparently cite d the statements of some of the experts regarding
severely blighted orchards as themse lves constituting scientific evidence, 48 for indeed they are not –
nor did the experts claim they were. In fact, one of those experts stated, "I am not sure this is
something that has to be argued in scientific terms. It is a matter of public policy."
4.77 Japan countered that despite the US attempt to discount the experts' opinions regarding
protection against a (severely) blighted orchard, this did not undermine the value of their statements in
interpreting the available evidence. Japan emphasi zed that a measure would be scaled, under the SPS
Agreement, according to the level of protection of the importing country, and it was natural for the
experts to avoid judgment on a measure – as it could not be made on the basis of science alone.
4.78 Japan noted that since the findings of Azegami et al. (2005) and Tsukamoto et al. (2005a)
indicated the difficulty of detecting every infection only from apparent symptoms in apple fruits, these

46 Panel Report on Japan – Apples, para. 8.226.
47 Panel Report on Japan – Apples, Transcript, Annex 3, para. 414.
48 The Original Panel defined "scientific evidence" as "evidence gathered through scientific methods,
excluding by the same token information not acquired through a scientific method", and further excluding "not
only insufficiently substantiated information, but also such things as non-demonstrated hypothesis". Panel
Report on Japan – Apples, paras. 8.92, 8.93, and 8.101-8.103.

studies supported Japan's position that errors or in ability of detection would make it imperative to
control the risk at the orchard level. It was also evident that apples from such trees would more likely
contain something other than "mature, symptomless" apple fruit, leading to possible human errors in
sorting. Japan also noted that Professor Thomson's discovery of E. amylovora from inside apples late
during the maturing season in Utah was from a (severely) blighted tree. 49 Considered together, Japan
argued these results demonstrated that the risk of contamination or infection from the bacteria was
higher in a (severely) infected orchard.
4.79 Japan expressed concern that the US arguments had not demonstrated how the product the
United States would export in the absence of the orch ard requirement would indeed be identical to the
conceptual "mature, symptomless" apple fruit. No r had there been any discussion of effectiveness of
the quality controls currently in place at the relea se stage, even though there was direct evidence that
the quality control had failed at least once in the blighted pear shipment to Hawaii. 50 Rather, Japan
argued, the United States sought to have the Pane l endorse its current export practice, but without
production process controls.
4.80 The United States clarified that commercial controls on pear fruit, as well as apple fruit, had
evolved significantly since 1943 when the anecdotal shipment of pear fruit allegedly arrived in
Hawaii. In the 1940s, fruit, in particular pear fru it, was often packed directly in the orchard and
packing facilities were used simply for cold storag e purposes. Since that time, packing facilities had
evolved to play a much greater role vis-a-vis quality controls and quality controls themselves had
become much more sophisticated. For instance, s ophisticated equipment such as optical scanners had
only become available to the apple industry in the last decade.
4.81 The United States noted that no evidence existe d that quality controls for exported apple fruit
relating to fire blight had ever failed vis-a-vis sh ipments of mature, symptomless apple fruit, even in
the 1940s, when quality controls were less technologi cally advanced and sensitive. The United States
stated that neither relevant databases nor per tinent US Government and industry officials had
indicated that foreign importers had ever rejected US apple exports for reasons of immaturity or
infection/infestation with fire blight.
51
4.82 Japan noted that Chinese Taipei had tempor arily suspended imports of apples from
Washington and the rest of the United States after a codling moth larva was found in a shipment from
Oregon.52 Coddling moth larvae were intercepted at import inspection of US apple fruit four times in
2004 after the previous interception in 2002 at Chin ese Taipei. These repeat ed cases of failure
indicate that there exists a genuine cause of concer n over the quality of the export inspection by the
US authorities.

49 Letter from S.V. Thomson, Utah State University, to R.G. Roberts, USDA at 1 (August 23, 2002)
(Exhibit JPN-13).
50 University of California (1965). Do summer oil sp rays favor fire blight development in pear fruit?,
Calif Agric. Ext. Serv. Fruit Nut Grape Dis. Newsl. (Jan): 2; van der Zwet et al. (1990). Population of Erwinia
amylovora on External and Internal Appl e Fruit Tissues, Plant Disease 74: 711-716. (Exhibit JPN-11); van der
Zwet (1994). The various means of dissemination of the fire blight bacterium Erwinia amylovora , EPPO
Bulletin 24: 209-214.
51 The United States reviewed relevant databases and confirmed with relevant officials that no
shipments of US apple fruit had been rejected by foreign importers due to either immaturity or symptoms of fire
blight. Specifically, the United St ates performed a search of the Fo reign Notification of Non-compliance
database, containing non-compliance statements collected by the United States Department of Agriculture from
IPPC contact points, and checked with Federal, State and industry representatives responsible for overseeing
apple export programmes. The Foreign Notification of Non-Compliance database contains a limited time period
of electronic entries, and paper records of export non-compliance/rejection which date back to the 1950s.
52 The Seattle Post Intelligencer, Taiwan bans Washington apples. Dec. 22, 2004.

4.83 The United States countered that interception of codling moth in exported US apple fruit was
simply not pertinent to an evaluation of whether US commercial quality controls for fire blight in
apple fruit had ever failed, i.e., whether the US had ever shipped anything other than mature,
symptomless apple fruit. Japan's evidence regarding a detection of codling moth in exports to
Chinese Taipei did not provide an y evidence concerning export or quality controls on apple fruit and
fire blight. Japan had failed to present any evidence of the failure of US quality controls as they relate
to fire blight and apple fruit in this compliance proceeding or that a failure of maturity or fire
blight-related quality controls anywhere in the world had ever been responsible for the introduction of
fire blight.
53
4.84 The United States commented that fire blight was a plant disease, and the scientific evidence
demonstrated that mature apple fruit were not in fected Codling moth was a plant pest, known to
employ mature fruit as a potential pathway. The presence of codling moth in a fruit was much more
difficult to ascertain than fire blight because the exte rior of a codling moth infested fruit, for example,
might have only a pin-prick sized hole. In contrast, a hypothetically infected apple fruit would "fail to
develop fully, turning brown to black, shrivel[], and becom[e] mummified." 54 Thus, the discovery of
codling moth in apple fruit exported to Chinese Taip ei was irrelevant to the question of US quality
controls vis-a-vis fire blight.
4.85 The US Export Apple Act, in conjunction with overarching commercial considerations,
ensured that only mature apple fruit were exported from the United States. Apple fruit that fail to
meet the Act's requirements would not be issued an export certificate, and might not legally be
exported. Exported fruit would have to meet th e Act's criteria concerning, among other things,
maturity, color and firmness. Further, the hypoth etical shipment of immature apple fruit would be
extremely damaging to US export interests and the reputations of individual growers and inspectors,
as well as US apple fruit on the global marketplace.
4.86 Japan countered that possible liabilities arising from shipment of products other than "mature
and healthy" apple fruit were attributable to the sh ippers/growers. It was always in the shippers'
and/or growers' interest to disclaim any liability in their commercial contracts with importers. As a
result, their "commercial considerations" and pr actices would be only as good an incentive (to ship
healthy apple) as these potential (and limited) liabilities would require them to be. This incentive was
absent because neither the Department of Agriculture nor a shipper/grower were held accountable for
the consequences. The codling moth discovery tes tified to the lack of adequate precautions in
shipping the apple fruit to foreign countries or territories from the United States.
4.87 The United States claimed in its first submission that Japan's measure limiting imported
apple fruit to the US States of Washington and Or egon was maintained without sufficient scientific
evidence and bore no rational or objective relationship to the scientific evidence relating to apple fruit
and fire blight as analyzed by the Panel. It did not matter, for fire blight purposes, where the apple
fruit was grown. Nevertheless, MAFF Notificatio n No. 354 required that apple fruit be produced
"where US plant protection authority inspect for fire blight at proper times in the States of
Washington and Oregon, USA." Japan's measure limiti ng eligible apple fruit to those produced in
Washington and Oregon was maintained without suffi cient scientific evidence within the meaning of
Article 2.2.

53 To the contrary, in the Original Panel proceedin g, the Panel noted that the experts categorically
stated that there was no ev idence to suggest that mature apple fruit had ever been the means of introduction
(entry, establishment and spread) of fire blight into an area free of the disease." Panel Report on Japan –
Apples, para. 8.149. See also R.G. Roberts, et al . The potential for spread of Erwinia amylovora and fire
blight, Crop Protection 17: 19-28, 20-24, at 22 (1998).
54 Panel Report on Japan – Apples, para. 2.1.

4.88 In its first written submission, Japan argued that its geographical restriction on US apple
exports was consistent with the SPS Agreement be cause it was "based on a procedural requirement"
and that "[a]s long as the United States provides a ppropriate documentation of other quarantine pests
and diseases" for other US States, those States might begin exporting apple fruit to Japan.55
4.89 The United States noted there was no scientific evidence to support or justify a measure in
any way restricting the eligibility of growers or packers to those in Washington and Oregon based on
concerns regarding the hypothetical spread of fire blight. Japan might, in certain scenarios, have
legitimate reason to restrict exports from these st ates because of other plant diseases and quarantine
pests. However, Japan had no grounds to restrict those exports under the auspices of a fire blight-
specific measure. In light of th e scientific evidence, insofar as Japan's measures purported to mitigate
hypothetical fire blight concerns, they should permit apple growers and packers from every apple-
producing state to export mature, symptomless apple fruit to Japan.
4.90 Japan countered that the there would be no discr imination in treatment of apple fruit from
any State. The same measure would apply to any st ate consistently with the Detailed Rules and the
Operational Criteria. Japan noted that as long as the United States provided appropriate
documentation of other quarantine pests and di seases, MAFF Notification No.354 and the Detailed
Rules would be amended, and other States would be added to the eligib le exporting locations.
Alternatively, the United States could demonstrate that the environmental conditions of other States
were not different from those of Washington and Oregon and Japan would consider adding the entire
United States to the list.
(b) The export orchard must be free of plants infected with fire blight
(c) The fire blight-free orchard must be surrounded by an approximately ten-meter buffer zone
(or border zone) free of fire blight
4.91 The United States recalled the statements of the experts to the Original Panel with regard to
the two conditions. One expert noted that "in the c ase of fire blight the possibility that fire blight
should enter an orchard during a given growing season from outside the orchard . . . [and] infect fruit
is almost impossible. . . [s]o for that reason I doubt whether a buffer zone is really necessary in the
case of fire blight." 56 Another expert commented that the 2000 joint study conducted by the United
States and Japan "had shown conclusively that no bu ffer zone of any size was justified by the existing
scientific data, as fruit harvested from blighted trees or adjacent to blighted trees had not harboured
E. amylovora."57
4.92 The United States claimed that the unjustified and unscientific nature of Japan's measures was
further demonstrated by considering that a requireme nt of fire blight-freedom in a buffer zone meant
that trees tens, hundreds, or thousands of meters away from a potential source of inoculum would be
disqualified for export to Japan. In this resp ect, decreasing the size of the buffer zone from 500
meters to ten meters was a hollow gesture – fruit growing significant distances from a source of
inoculum was disqualified for export in both scenarios.
4.93 Japan argued that the introduction of a "border zone," replacing the previous buffer zone,
was a fundamental and substantial modification. Ja pan observed that, in contrast to Japan's revised
measure, the United States required Japanese unshu orange orchards to be surrounded by a 400 meters

56 Panel Report on Japan – Apples, Transcript, Annex 3, para. 314 (Dr Smith).
57 Panel Report on Japan – Apples , paras. 8.189, and 6.134-6.135 (Dr Hale, citing R.G. Roberts,
Evaluation of buffer zone size and inspection number reduction on phytosanitary risk associated with fire blight
and export of mature apple fruit, Acta Horticulturae 590 (2002) (Exhibit USA-9)).

buffer zone. The relaxation of the measure would be economically significant for American growers
who would subsequently be permitted to designate practically every orchard they owned. In addition,
Japan claimed that the buffer z one was necessary to (i) clearly delineate and define an "export
orchard," separate from the rest of the grounds and s ubject to phytosanitary requirements, and to (ii)
prevent branches of trees inside the orchard from overlapping, or being in direct contact, with plants
outside the orchard. The width of ten meters was not definitely required; the border zone requirement
would be automatically met when the orchard wa s surrounded by passageways, waterways or other
equivalent natural barriers or open sp ace of a width of about ten meters.
58 Japan noted that most
orchards were surrounded by driveways, wate rways or other non-cultivation zones, and the
requirement was not likely to impose an additional or unreasonable burden on producers.
4.94 Japan further noted that an exception to this ru le was established for the "least resistant"
varieties. Because fire blight was known to sp read widely within a block or section for these
varieties, sections for these varieties would need to be surrounded by a passageway, a waterway, a
cliff or other natural barriers of about ten meters, and simple ope n space between growing lots of
these varieties would not qualify as a border zone.
4.95 The United States countered that since neither mature fruit from resistant varieties nor
mature apple fruit from less-resistant varieties had ever been shown to contain internal populations of
E. amylovora despite extensive studies conducted for this purpose, scientific evidence did not support
either form of buffer zone. Japan's attempt to impose varying requirements depending on varieties
further complicated the export process and discouraged exports of apples.
4.96 Japan noted that its requirement barely met th e internationally recognized concept of a
"buffer zone," as defined by the International Pl ant Protection Convention (IPPC), which was "[a]n
area in which a specific pest does not occur or occurs at a low level and is officially controlled, that
either encloses or is adjacent to… a pest free pr oduction site, and in which phytosanitary measures are
taken to prevent spread of the pest." 59 Indeed, a non-cultivation zone of some width was the concept
that the experts referred to as a "buffer zone" at the meeting of the Original Panel.60
4.97 The United States noted that Japan's argument failed to rebut the prima facie case established
by the United States that a fire blight-free buffer/bor der zone requirement was not rationally related to
the scientific evidence. In additi on the United States noted that the requirement of a fire blight-free
buffer zone appeared to contradict Japan's argume nt that export orchards should be inspected for
severe or heavy blight. Without suggesting that th e scientific evidence justified either requirement,
the United States noted that it was impossible for th e scientific evidence to support both propositions,
by permitting a certain amount of fire blight in an export orchard, yet none in the zone surrounding
the orchard.
4.98 The United States noted that the Detailed Rul es defined the buffer/border zone as being ten
meters wide and possessing "[n]o tree with fire bli ght symptoms." Further, all buffer/border zones
would need to be inspected. Japan's first submission described border zones in greater detail, but only
in the context of the Operational Criteria. The United States also claimed that the Operational Criteria
required that least-resistant varieties be surrounded by "a passageway, a waterway, a cliff or other
natural barriers" of at least ten meters width. According to this interpretation of the Operational
Criteria, least-resistant varieties would not be eligible for an exception from the border zone
requirement, but rather would be subject to a tighten ing of the fire blight-free requirement. Under the

58 An example of a Commercial Orchard in Washington State (Exhibit JPN-4).
59 IPPC Guideline No. 5: Glossary of Phytosanitary Terms 2002, FAO, Rome 2002.
60Panel Report on Japan – Apples , Transcript, Annex 3 , para. 319. Dr Geider stated "… buffer zones
have to be really strictly defined and all host plan ts which could be eventually harbouring have to be
removed ..."

Operational Criteria, when a blight strike was discovered in an orchard or block containing least-
resistant varieties (thereby disqualifying the orchard), all adjoining orchards or blocks would similarly
be disqualified unless the border/buffer zone met the higher standard (i.e., that the zone be entirely
free of potential host materials). Conversely, should a blight strike be observed on a tree of a more-
resistant variety, adjacent blocks or orchards woul d not be disqualified if the disqualified block was
surrounded by a ten meter buffer zone free of fire blight.
4.99 Japan noted that Japan had never imposed require ments that the buffer zone be free of host
plants. Any host plant could exist in the buffer zone under the previous measure, as well as under the
new measure.
(d) The orchard and surrounding buffer zone must be inspected once per year at early fruitlet
stage
4.100 The United States argued that the unjustified and unscientific nature of Japan's measures was
further demonstrated by considering that the requirement of fire blight-freedom in orchards meant that
a single fire blight strike on a single tree in a large export orchard would disqualify all apple fruit in
the orchard, even those tens, hundreds, or thousands of meters away from the source of inoculum.
4.101 Japan countered that scientists recognized the risk of transmission of the disease from one
tree to another adjacent tree. Japan argued that its definition was equivalent to the "(severely)
blighted" condition referred to in the findings of the Original Pane l. It was not the case that a single
fire blight strike on a single tree in a large export orchard would disqualify all apple fruit in the
orchard.
4.102 Japan explained that for practical reasons, Japan's policy was to conduct inspection by the
officials in an inspection automobile (a "buggy"). Under the Operational Criteria of the new measure,
a tree would be presumed to be "(severely) infect ed" when readily observable symptoms were found
on the tree exterior, as seen from the official in the inspection automobile. If such tree was found, any
section, block or part of an orchard which was not surrounded by a "border zone" of an appropriate
size to prevent overlapping or direct contact with outside host plants would be presumed to disqualify
from exportation.
61
4.103 Japan noted that the Operational Criteria, which provided guidance on how orchard
inspections should be conducted, had been provisiona lly established in light of the scientific evidence
and the revised PRA. Japan's new measure was d esigned to prevent imports of US apple fruits from
(severely) blighted orchards, as advised by the ex pert who were consulted in the Original Panel
proceedings.62 Japan intended to modify the criteria de pending on further evidence and the results of
the present Panel.
4.104 The United States argued that the Operational Criteria, while not a measure taken to comply
for purposes of this proceeding, equated severely or "heavily blighted" with a scenario where "readily
observable symptoms were found on the tree exteri or, as seen from the official in the inspection
automobile." The United States noted that under th is standard, a single, "readily observable" fire
blight strike on a single tree which the inspection regime proposed in the Operational Criteria would
be no more relaxed than the fire blight-free inspect ion/disqualification proposed in Japan's Detailed
Rules of 30 June 2004 or fire blight-free inspecti ons conducted by Japanese inspectors in the past.
The Operational Criteria proposed the disqualifica tion of an orchard or export block when an
inspector, in a buggy car, observed "readily observable" fire blight symptoms on an apple tree.

61 Japan described this condition as most likely equivalent to Dr Hale's definition of "severe infection".
62 Panel Report on Japan – Apples, paras. 8.153 and 8.226.

4.105 Japan noted that in the two cases in which fire blight had been discovered by Japanese
officials at the harvest stage, the officials stated that they believed they would have discovered many
other symptoms of fire blight in the orchard.
63 As the inspection was conducted in limited period of
time, it only served to detect significant levels of fire blight, or a "(severely) infected" orchard. Japan
noted that there was no precise definition of a "(sev erely) blighted" orchard, but the inspection that
Japan was planning would not be substantially diffe rent from the level which would detect such an
orchard.
4.106 Japan argued that Japan's criteria did not define a "(severely) infected" orchard directly, but
rather defined the orchard indirectly by means of the stated methodology. Japan claimed that
testimonies of Japanese experts indicated that th e discovery of infection under the inspection
methodology included in the Operational Criteria would occur only when there were widespread
symptoms of fire blight in a given orchard. Thus, the Operational Criteria ensured that only a
(severely) blighted orchard would be detected.
4.107 Japan commented that an alternative definition would be to define a "(severely) blighted"
orchard directly according to Dr Ha le's definition, in which 75 in fected strikes per tree would be
found. Implementing this standard would require a close inspection of the entire orchard, and
additional time and resources. Japan argued that since the methodology of the Operational Criteria
employed observation from a running vehicle, it w ould only detect an orchard in the condition
Dr Hale would call severely blighted, and should be viewed as a functional equivalent of his standard.
The Operational Criteria codified this insp ection methodology which would be the minimum
necessary and sufficient to identify a "(severely) blighted" orchard, and ensure that no further survey
or no detailed inspection of the orchard (site) was required.
4.108 The United States noted that Dr Hale never spoke of inspections for severe blight on an
individual tree , rather he spoke of inspections for 75-100 strikes per tree in "severely blighted
orchards".64
4.109 The United States recalled that under the fire blight-free regime in 1995, experts conducted
buggy car inspections for visible signs of fire b light, and disqualified entire orchards on observation
of a single fire blight strike.
4.110 The United States claimed that the requirement for at least one inspection of both the orchard
and the buffer zone at the early fruitlet stage to ensu re that the orchard and buffer zone were free of
fire blight bore no rational or objective relationshi p to the scientific evidence relating to apple fruit
and fire blight.65 The Original Panel had summarized the views of the scientific experts on the subject
of inspections, noting that "[e]ven with uninspected orchards the experts thought the risk to Japan of
the entry, establishment or spread of fire blight was very low as surface E. amylovora was found only
rarely on apples even from severely infected orchards." 66 The experts' conclusion and the Panel's
finding that the scientific evidence did not establis h that calyx-infested apple fruit would harbour
populations of bacteria capable of transmitting fire blight, 67 confirmed that there was no rational
relationship between an orchard and buffer zone inspection and the scientific evidence.
4.111 The United States also contended that Japan's arguments regarding apple fruit infection
contradicted the proposed "early fruitlet" timing of the orchard and buffer zone inspections. In
support of its contention that mature apple fruit might become latently infected with fire blight, Japan

63 Observation by MAFF Plant Quarantine Officials (Exhibit JPN-15).
64 Panel Report on Japan – Apples, Transcript, Annex 3, para. 294.
65 Panel Report on Japan – Apples, paras. 8.168, 8.171, and 8.176.
66 Panel Report on Japan – Apples, para. 8.196.
67 Panel Report on Japan – Apples, paras. 8.171 and 8.176.

noted that "the probability of latent infec tion of mature apple fruit will depend on the physiological
conditions and activities of the bacteria from August to the end of the maturing process ."68 If Japan
was asserting that the proposed "risk" of apple fruit infection depended on the activity of bacteria until
the end of the growing season when apple fruit were completely mature, there could be no rational
relationship between that evidence and an "ear ly fruitlet" inspection, which would provide no
assurances regarding the "physiologi cal conditions and activities of the bacteria" at the "end of the
maturing process."
4.112 Japan countered that the fruitlet stage was the be st observation point for the fire blight
infection of an orchard, because at this stage th e bacteria were most active and the symptoms were
observable. If the orchard had already been (severel y) blighted during the fruitlet stage, the orchard
would likely produce a higher number of infected (imma ture) apples than otherwise. Similarly, the
level of bacterial presence in a (severely) blighted orchard at the fruitlet stage would likely have been
higher than other orchards, resulting in a higher pr obability of latent infection, if any, through
pedicels.
4.113 The United States further claimed that Japan's revised measures created ambiguity regarding
the number of inspections required. Whereas Japan 's 1997 Detailed Rules clearly stated that the
confirmatory inspection to be conducted by Japan w as to be "carried out at the same time with the
inspection of the American authorit ies for the designation of the orch ards prior to harvest," Japan's
revised 2004 Detailed Rules contained no such qualifyi ng statement, stating simply that a "Japanese
official shall confirm the designated orchards with the United States Authorities every year." 69 The
United States noted in its first submission that this lack of specificity and qualification for Japan's
revised confirmation inspection would necessitate an interpretation of Japan's 2004 Detailed Rules
and might permit Japan to conduct its confirmatory in spection at a later date than the US inspection,
effectively resulting in two inspections of the orchard.
4.114 Japan clarified that inspections occurred once at the fruitlet stage. The Original Panel had
found that three inspections would not be necessary, as the inspection at the fruitlet stage would be
most effective in detecting symptoms, and as the reliability of visual inspection of apple trees would
not be likely to increase by repetition.
Post-Harvest requirements

4.115 The United States recalled that Japan had argued that va rious post-harvest measures, namely
sterilization of packing facilities handling apples for export to Japan, and export and import inspection
were consistent with Article 2.2 based on the fact th at the Original Panel had not reached an analysis
of these measures due to its exercise of judicial economy. The absence of a finding by the Panel on
Japan's post-harvest measures did not, ipso facto, mean that the measures were maintained with
sufficient scientific evidence within the meaning of Article 2.2, and only highlighted the need for
findings on each of the specific elements of Japan's import regime for US apple fruit at issue in this
proceeding.
4.116 The United States noted that fruit boxes could not be infected with anything as they were not
living entities. Also, modern post-harvest handli ng procedures long ago aba ndoned wooden crates as
had used in the mid-20th century for new (unused ), disposable, assembled-as-needed boxes made of
cardboard which had no opportunity to become contaminated with E. amylovora. In light of the US
apple industry's use of new, disposable crates, there was no possibility of containers previously
contaminated by exposure to pears harvested from blighted orchards being re-used for harvesting
apple fruit for export to Japan.

68 First Written Submission of Japan, para. 39.
69 Detailed Rules (April 1, 1997), § 1(4); Detailed Rules (June 30, 2004), § 1(4).

4.117 Japan argued that Azegami et al. (2005) had corroborated the finding that mature,
symptomless apple fruit could be infected throug h artificial wounds using bacterial suspension.
Consequently, as long as apple fruit suffered from ex terior damages and there was sufficient number
of bacteria on the fruit boxes, there was a realistic likelihood that the fruit would be infected.
4.118 The United States noted that speculation and anecdotal postulations had been published
about the source of inoculum for the first outbreak of fire blight in England in the 1950s. The experts
confirmed the anecdotal and unsubs tantiated nature of the conclu sions in Lelliot, Billings and
Barrie.
70 Infected fruit and contaminated honey bees had been dismissed by Lelliot as being highly
improbable, while the re-use of contaminated boxe s or infected budwood/nursery stock seemed more
probable. There was no survivin g evidence that would ever allow confirmation of the means by
which fire blight was introduced into England, an d there would never be such evidence despite the
recent efforts of Billings and Barrie (2002) to discu ss purely conjectural and circumstantial evidence
that there was a "possibility that there was a greater risk than usua l in 1955 of blighted pears (and
hence, contaminated fruit boxes) being imported from the USA." 71 Billings and Barrie presented no
evidence that such an event occurred, and no ne w evidence was presented to facilitate evaluation of
any of the other suggested means of dissemination. The strongest statement the authors could make
about the "evidence" was "[t]he possibilities sugg ested rely heavily on circumstantial evidence but
they cannot be ruled out."
4.119 Japan argued that the US argument regarding post-harvest measures was incongruous with
its own "mature, symptomless" criteria – and curr ent export practice. Japan's new measure were
designed to address two sources of risk: (i) the risk of accidental shipment of observably infected
apple fruit and (ii) the risk of latent infection. Japan contended that inspections at export/import
stages would offer security for the former risk and inspections at the importation stage would be
beneficial for detecting symptoms which had developed during shipping.
4.120 The United States noted that the Export Apple Act and its grading standards were one of
numerous requirements and practices that assured that exported apple fruit were mature. For
example, commercial considerations require that growers, packers and shippers, through their pre- and
post-harvesting procedures, test apple fruit for ma turity and subject fruit to visual and sensitive
electronic scanning for grading and defects that would result in the culling of any hypothetically
immature fruit. In addition the United States obser ved that the information listed on phytosanitary
certificate addressed plant health concerns, and the specific requirements that had to be met on the
certificate were dictated by the importing country. Unlike quality requirements under the Export
Apple Act, the United States did not have a fixed, required form for a phytosanitary certificate.
Rather, these certificates will vary on both commodity-by-commodity and country-by-country bases.
4.121 The United States noted that in order to export apple fruit to Japan, US apple growers and
shippers had to satisfy each of the numerous requirements of Japan's import regime for US apple fruit.
Participation in this programme was complicated , burdensome and costly, ultimately exposing the
grower to the cost-prohibitive risk that a grower's harvest would be rejected or declared ineligible for
export to Japan due to a failure to meet any one of Japan's scientifically unjustified requirements.
Each element of Japan's import regime for US apple fruit imposed significant costs on the growers
and shippers. Against these costs, growers and shi ppers assumed the risk that their entire investment
would be lost as a result of a single fire blight detection that, given the nature of the programme,
might be on a plant that was not even within the grower's legal or physical control ( e.g., if he or she

70 The United States referred to Panel Report on Japan – Apples , paras. 6.33-35, 6.166, 6.168, and
6.169.
71 Billing, E. and Berrie, A.M. (2002), A Re-Examination of Fire Blight Epidemiology in England,
Proc. 9th Intl. Workshop on Fire Blight, Acta Horticulturae 590: 61-67.

did not own the area serving as the buffer zone) or other orchard inspection requirements that also
lacked a basis in the scientific evidence.
4.122 Japan countered that the costs to US apple grow ers of complying with Japan's import regime
had to be weighed against the possible costs of larg e-scale investigation and eradication costs, if fire
blight was detected in Japan. These cost s could be very high; for example, the E. amylovora
incursion in the Royal Botanic Gardens, Melbourne in autumn 1997 had cost the Australian pome and
nursery industries an estimated A$20 million in lost revenue and an estimated 10.7 million plants had
had to be surveyed between 1997 and 1999. Further, some apple orchards had been inspected in 2001
and were found qualified to export to Japan on the basis of three orchard inspections. For these
orchards potential benefits of participating in the apple export programme outweighed the expected
costs and risks. Japan was not aware of the reasons why apple fruit harvested from these orchards had
never been exported to Japan.
(e) Harvested apples must be treated with surface di sinfection by soaking in sodium hypochlorite
solution
4.123 The United States claimed that in the case of apple fruit and fire blight, the scientific
evidence did not establish that mature apple fruit would harbour epiphytic populations of bacteria
capable of initiating fire blight disease. Further, there was no scientific evidence that apple fruit
intended for export had ever been or were likely to be epiphytically contaminated with fire blight or
fire blight-causing bacteria in packing houses, much less that such contamination could then result in
the introduction of fire blight into Japan. Theref ore, a facility disinfestation requirement, enforced
under the auspices of preventing the hypothetical epip hytic spread of the disease, bore no rational or
objective relationship to the scientific evidence.
4.124 Japan argued that neither the experts nor the Orig inal Panel found surface disinfestations to
be inconsistent with the SPS Agreement. As epi phytic bacteria would not be removed by inspection
at the orchard, it was prudent to sterilize the surfa ce, even if the risk from these bacteria were not
high.72 This treatment would decrease the incidence of the bacteria from collected apple fruit which
might have been infected from surface wounds in a manner similar to that demonstrated by the
Azegami et al. (2005) and Tsukamoto et al. (2005a) studies. In addition, the washing process using
chlorine deactivated the bacteria. Japan indicated that washing of apple fruit was part of the normal
commercial pre-shipment treatment of US apples and hence posed no additional burden on US
exporters.
73
(f) The interior of the packing facility must be disinfected by a chlorine treatment
4.125 The United States claimed that there was no scientific evidence that apple fruit intended for
export could be epiphytically contaminated with fire blight-causing bacteria in packing houses, much
less that such contamination could then result in intr oduction of fire blight in Japan. Further, when
viewed in light of the statements of an expert that another required Japanese post-harvest treatment –
chlorine dip – alone would adequately remove a ny hypothetical risk of epiphytic contamination of
apple fruit, it was impossible to demonstrate a rational relationship between Japan's sterilization
measures and the scientific evidence. 74 Accordingly, the United States argued, Japan maintained its
additional post-harvest measures without sufficient scientific evidence in bre ach of its obligations
under Article 2.2.

72 Panel Report on Japan – Apples, para. 8. 136.
73 Oral presentation by Mr. P. McGowan, at the first substantive meeting of the Original Panel.
74 Panel Report on Japan – Apples , Transcript, Annex 3, para. 323 (Dr Smith) ("Indeed, it could be
argued that such a disinfection treatment is quite adequate to remove the phytosanitary risk by itself.").

4.126 Japan argued that this requirement was a normal requirement in any process in that it only
required a level of sanitation typical in a commerc ial food production line and could easily be met by
the use of normal detergents.
4.127 The United States noted that facility disinfestations were not standard in the US apple
industry. It was not, as Japan contends, a "normal re quirement" in the US apple industry, let alone "a
normal requirement in any process." Facility disinfest ations and chlorine dip were necessary in order
to meet the requirements of Japan's Detailed Rul es for apple exports. Moreover, even measures
alleged to be normal or standard industry practice had to be maintained with sufficient scientific
evidence within the meaning of Article 2.2.
(g) Fruit destined for Japan must be kept separate post-harvest from other fruit
(h) US plant protection officials must certify that fruits are free from fire blight and have been
treated post-harvest with chlorine; and
(i) Japanese officials must confirm the US officials' certifications and inspect packing facilities.
4.128 The United States maintained that in light of th e scientific evidence, there was no justification
for the requirement that apple fruit destined for expor t to Japan be kept physically separate from other
apple fruit. The United States observed that by fa iling to address post-harvest separation of apple
fruit in its submission, Japan had failed to rebut the prima facie case raised by the United States that
the post-harvest separation requirement was mainta ined without sufficient scientific evidence for
purposes of Article 2.2.
4.129 Japan argued that the United States had not made a case against the separation requirement,
other than in relation to the disinfestation treatme nt. The separation requirement was not specific to
fire blight but a natural extension of the other c ontrol requirements (i.e., the orchard requirement and
the border zone requirement against fire blight and the fumigation requirement against codling moth).
In addition, Japan recalled comments by Dr Hale, specifically that separation of fruit destined for
Japan would not be difficult given that many fruit ex porters already had the capacity to separate fruit
destined for different markets all over the world. Dr Hale had noted that in New Zealand fruit exports
were separated in the process of packing into cat egories based on size, colour, type of fruit, and
variety.
4.130 Japan noted furthermore that inspections at e xport/import stages would offer security for the
risk of accidental shipment of observably infected apple fruit and inspections at the importation stage
would be beneficial for detecting symptoms whic h had developed during shipping. These inspections
and the issuance of phytosanitary certificates were standard regulatory practice and did not result in
any burden to US exporters. As phytosanitary measu res, the requirement was necessarily procedural.
Moreover, Japan noted that the United States a nd other Members had a similar requirement for
quarantine pests and their host plants. Japanese pr e-shipment inspections were designed to counter
not only the risk of fire blight but also of c odling moth and other pests and diseases of quarantine
concern.

D. ARTICLE 5.1
1. General
4.131 The United States claimed that Japan's September 2004 PRA 75 had failed to propose a valid
scientific analysis of any "risk" of fire blight from the commodity exported by the United States -
mature, symptomless apple fruit. Instead, it had relied on the proposition that mature, symptomless,
yet latently infected fruit would somehow reach the Japanese market - a proposition unsupported by
Japan's studies, as they had not demonstrated that such a commodity could exist in the real world.
4.132 Japan argued that new evidence showed that the risk of completion of the pathway by US
(infected) apple fruit from a (severely) blighted orchar d was real, and even higher than thought at the
time of the Original Panel. Japan had undertaken revision of its 1999 PRA on possible introduction of
fire blight disease into Japan specifically through apple fruit from the United States. The revised PRA
was completed in June 2004 and further updated in September. The purpose of the revision was to
comply with the findings and/or conclusions of the Original Panel and to revise the measure by the
end of the reasonable period of time. The revi sed PRA considered and compared a variety of
phytosanitary measures to cope with the risk wh ich had been established through laboratory studies
and the findings and conclusions of the Original Pa nel. The revised PRA first considered if visual
export/import inspection would be sufficient to achi eve the appropriate leve l of protection (ALOP)
upon shipping and/or arrival at Japanese ports. Th e difficulty of detecting symptoms and errors was
considered. Since latent infection by E. amylovora inside apple fruit could not be detected by visual
export/import inspection alone, whether at the point s of exportation or importation, it was judged
insufficient to achieve the level of protection.
76
4.133 Japan maintained that the revision was done fully in accordance with the procedural
requirements as set out in ISPM 11. The revised PRA proceeded in three stages, namely:
Stage 1: Initiation of a PRA, which revi ewed and discussed biological evidence and
phytosanitary measures in foreign countries against the fire blight disease;
Stage 2: Pest Risk Evaluation. In this stage, the risk of introduction of the disease and
estimated damages were evaluated for US apple fruit; and
Stage 3: Pest Risk Management, discussing possible counter measures to shut down
pathways through (a) internally infected ma ture apple fruit, (b) infected immature
apple fruit and (c) wounded/decayed apple fruit infected with the bacteria.

4.134 Japan explained that in May 2004, Japanese e xperts met to discuss the 2004 PRA and on
15 June 2004 the PRA had been completed.
77 On 30 June 2004 Japan had adopted the Revised
Detailed Rules together with the Operational Crite ria. On 8 September 2004 the final PRA had been
issued. This revision reflected the publication stat us of new evidence, which had previously been
referred to just as personal communications.
2. Evaluation of the likelihood of entry, establishment or spread
4.135 Japan claimed that the revised PRA considered a ll of the issues raised by Dr Hale at the
Original Panel meeting with experts.78 The revised PRA showed that there was a rational relationship

75 Report on Pest Risk Analysis concerning Fire Blight Pathogen ( Erwinia amylovora ) (September
2004), Exhibit JPN-3; "the "revised PRA").
76 Revised PRA, Stage 2.
77 Report on Pest Risk Analysis concerning Fire Blight Pathogen ( Erwinia amylovora ) (June 2004)
(Exhibit JPN-17).
78 Panel Report on Japan – Apples, para. 8.279.

between the evidence and the measure, consistent with Article 2.2. In the PRA, Japan identified "US
apple fruit" as a possible pathway for introduction of fire blight. The revised PRA then examined the
probability of infection of US apple fruit, the survivability of E. amylovora during handling, storage
and shipment and finally the completion of the pathway.
4.136 The United States noted that the Original Panel had found that Japan's PRA failed to evaluate
the likelihood of introduction of fire blight into Japan . It had reached this conclusion in part because
Japan's 1999 PRA was "not sufficiently specific to the matter at issue" in failing to examine the risk
from apple fruit.
79 Japan's September 2004 PRA suffered from the same flaw by failing to address the
commodity actually exported by the United States – mature, symptomless apple fruit – and instead
relying on the existence of a commodity that did not exist in nature – mature, symptomless, yet
latently infected apple fruit.
4.137 Japan argued that the requirement of specificity of the risk assessment identified in the
Original Panel report (paragraph 8.271) had been fully met as indicated in the First Written
Submission of Japan. The revised PRA did address the risk from "the commodity actually exported
by the United States," which the United States had defined (but had not proved) to be "mature,
symptomless" apple fruit. Japan's PRA had taken in to account that such apple fruit under the current
US export practice might or might not be actually "mature" in the horticultural sense or "healthy" in
the pathological sense, and addressed these risks accordingly.
Probability of fire blight being associated with the pathway at origin

4.138 The United States commented that, in its 2004 PRA, Japan recognized that there was
"consensus among foreign fire blight experts that mature, symptomless ap ples are unlikely to be
infected by the disease. Since E. amylovora have not been detected from apple fruit which were
sampled from infected trees or orchard, Dueck 1974, Roberts et al. 1989 and Roberts (2002)
concluded that the mature apple fruit is not infected with E. amylovora . This conclusion was
additionally supported by the available literature th at the pathogen would infect (immature) apples at
an early stage of growth, preventing the normal deve lopment of infected apples, so that by the time
apples became mature, only healthy apples would remain at harvest time."
4.139 Japan claimed that the United States had mischar acterized Japan's argument by selectively
citing only one part of the PRA. In the subsequent sections the PRA stated that the risk of latent
infection might be higher than thought at the time of the Original Panel, and that inadvertent shipment
of infected apple fruit would pose a risk, as new ev idence demonstrated that the pathway could be
completed.
4.140 The United States noted that because Japan appeared to recognize that mature, symptomless
apple fruit did not pose a risk of introducing fire blight, the revised 2004 PRA instead examined the
risk from a non-existent commodity – mature, sympto mless, but latently infected fruit. The United
States commented that Japan relied on the contention that Azegami et al . refuted the previous
scientific evidence on apple fruit and fire blight. The United States had previously noted that the
Azegami study had not succeeded in refuting this evidence. As a result, the 2004 PRA failed to
examine the actual risk – as established by the scien tific evidence – from mature, symptomless apple
fruit.
4.141 Japan noted that apple fruit might be infected or infested by the bacteria in orchards. Though
the risk of surface contamination was relatively insi gnificant, potential/actual infection of apple fruit
posed a risk of introduction of the disease. Japan argued that since the new evidence indicated that
the risk of latent infection of mature, symptoml ess apple fruit from a "(severely) blighted orchard"

79 Panel Report on Japan – Apples, para. 8.271.

would be higher than previously believed potential e rror in fruit sorting and handling was relevant to
evaluating the risks.
4.142 The United States noted Japan's revised PRA was ostens ibly based on the four new studies
put forward by Japan. The first step in Japan's revised pathway assumed the harvest of "[m]ature,
apparently healthy apple fruit which have fire blight bacteria inside," and that the "latently infected"
fruit were then sold on the Japanese market. 80 The United States claimed that the four studies, and
most notably the study purporting to identify the existence of mature, symptomless, yet latently
infected fruit, did not alter the Original Panel's clear findings and the scientific evidence on apple fruit
and fire blight. The studies did not establish that such a thing as a latently-infected mature fruit
existed in nature or that a vector existed to comple te the pathway. In short, the studies and, as a result
the 2004 PRA, did not establish that a pathway for introduction of fire blight from mature apple fruit
exists.
Probability of survival during transport and storage

4.143 Japan claimed that Tsukamoto et al. (2005a) showed that when bacteria had been inoculated
at a concentration of 10,000 cells or higher, they su rvived inside apple fruit for up to six months at
5 degrees Celsius. These results appeared not inconsis tent with the results of a previous study that
investigated the survivability of the bacteria inoculated at the calyx part of apple fruit.
81 Japan argued
that the bacteria could, once inside the fruit at certain concentration, survive the cold storage treatment
and shipping and transportation.
4.144 The United States noted that the results of the experiments conducted in Tsukamoto et al.
(2005a) could not be presumed to predict what would happen under commercial conditions because in
the experiments fruit were subjected to high temperatures for long periods of time before being moved
to cool storage (see paragraph 4.46).
Probability of fire blight surviving existing pest management procedures

4.145 Japan noted that the revised PRA reviewed the b acteria's ability to survive existing pest
management measures. While the probability of the event might be "small," as the Original Panel had
noted, the sorting process of apple fruit could inadve rtently pass infected apple fruit. Moreover, the
new pieces of evidence showed that even apparently healthy apple fruit could be latently infected by
the bacteria, and these results were consistent with the findings of the Original Panel regarding the
exports from a "(severely) blighted" orchard.
4.146 The United States noted that Japan's 2004 PRA attempted to address the shortcomings of the
original PRA, particularly those concerning the path way for introduction of fire blight into Japan via
apple fruit, by relying on the four flawed scientific studies discussed in detail above. As a result, the
2004 PRA failed to provide any (new) evidence that the hypothetical pathway would be completed.
4.147 Japan contended that the United States had faile d to note that the revised PRA had addressed
two different risks: (i) the risk of erroneous shipment of infected apple fruit and (ii) apple fruit latently
infected. Even though a latently infected mature fruit is found only under experimental conditions,
Azegami et al. (2005) showed that apple fruit was not resist ant to the bacteria ev en when they were
mature and that the only protection against the in fection was the abscission layer, as the United States
argued. Completion of the pathway using infected apple fruit had also been demonstrated under
conditions consistent with the Japanese environment.

80 The United States referred to "An example of the pathways that Japan considers" (Exhibit JPN-12).
81 Hale and Taylor (1999). Effect of cold storage on survival of Erwinia amylovora in apple calyxes,
Acta Horticulturae 489: 139-143 (Exhibit USA-16).

4.148 The United States argued that there was no evidence that the United States had ever exported
anything other than mature, symptomless apple fruit. To the contrary, the United States had reviewed
relevant databases and confirmed with relevant officials that no shipments of US apple fruit had been
rejected by foreign importers due to either immaturity or symptoms of fire blight. Specifically, the
United States had performed a search of the Fore ign Notification of Non-compliance database,
containing non-compliance statements collected by the United States Department of Agriculture from
IPPC contact points, and checked with Federal, State and industry representatives responsible for
overseeing apple export programmes.
4.149 The United States noted that Japan had failed to present any evidence that an "erroneous
shipment" had or would occur. Japan apparently rested its argument on the Panel's statement that
errors of handling or illegal actions are risks that "may be, in principle, legitimately considered by
Japan," improperly inferring that this statement gr anted Japan the right to assume that US quality
controls would fail. In noting that it was a risk th at may be considered, however, neither the Original
Panel nor the Appellate Body absolved Japan from it s obligation to present evid ence that the risk of
failure of US apple fruit quality controls was more th an just hypothetical. In fact, the Appellate Body
had been careful to observe that the Original Pane l's and experts' discussion of export controls was a
discussion of those controls "in general," rather than an evaluation of the specific controls for apple
fruit in place in the United States.
Probability of transfer of fire blight to suitable host

4.150 Japan claimed that the revised PRA had reviewed the results of Tsukamoto et al. (2005b) and
found that this study confirmed the probability of infection by US apple fruit from a "(severely)
blighted orchard" of the suitable hosts in Japan thro ugh flies. It had also been found that flies could
carry bacteria to these hosts, which were widesp read in urban areas, and that the arrival and
distribution of US apple fruit coincided with the flowering or fruitlet seasons of these hosts.
4.151 The United States noted that although Azegami et al. (2005) purported to demonstrate the
existence of a mature, symptomless, yet latently infect ed fruit, it failed to establish that such a thing
exists. Similarly, while Tsukamoto et al. (2005b) concluded that flies are a vector of E. amylovora, it
only achieved this result by failing to address real world, and real orchard, conditions. In fact, the
flies inoculated with E. amylovora as a result of entrapment with blighted fruit failed to vector the
inoculum to host plants. Further, although Kimura et al. purported to illustrate the probability of
introduction of fire blight via apple fruit, it would only do so by relying on the Azegami and
Tsukamoto studies, and even then its results c ontradicted its conclusions. The United States
countered that Japan could not prove that the hypot hetical pathway would be completed by relying on
its new studies which neither augmented nor changed the conclusions of existing scientific evidence
on fire blight and apple fruit.
4.152 Japan noted that the argument of the United Stat es was based on categorical denial of the
new evidence. Azegami et al. (2005) did show that mature apple fruit were not immune from
infection of the bacteria, and Tsukamoto et al. (2005b) showed completion of a pathway from infected
(whether latently or not) apple fruit using common fli es as a vector in an environment consistent with
Japanese fauna. Kimura et al. (2005) discussed the probability of these events in a comprehensive
discussion of the risk of introduction and establishmen t of the disease into Japan. Japan noted further
that the US critique boiled down to rejection of the conclusion of the revised PRA, and was not a
valid critique of the methodology of the analysis, particularly since each of the requirements raised by
Dr Hale had been fully met.
82 The fact that the United States did not like the conclusion would never
make a prima facie case under Article 5.1.

82 Panel Report on Japan – Apples, para. 8.279.

3. Evaluation of risk according to the measures which might be applied
4.153 Japan noted that the revised PRA had review ed and assessed the necessity of individual
elements of the Systemic Approach. 83 The revised PRA had considered the efficacy of each of the
possible phytosanitary measures in thwarting the risk of the disease from a (severely) blighted
orchard. Then the revised PRA discussed possible application of a combination of measures, when
one measure was found inefficacious to prevent in troduction and establishment of the fire blight
through the pathways.
4.154 The revised PRA concluded that a zone that identified the orchard and provided security
against encroachment of the disease from overlapping outside host plants was necessary. In addition,
inspection needed to be held once a year at th e fruitlet stage in order to maintain a level of
phytosanitary security in the orchard. Japan emphasized that further inspection would be
unnecessary.84
4.155 Japan claimed that the availabl e evidence indicated that it was necessary to restrict export of
apples from orchards expressing severe symptoms. However, the evidence indicated that only the
section (block) in the orchard where one (severely) infected tree had been found needed to be
disqualified. Also the evidence supported the defin ition of a "(severely) blighted" orchard, as being
an orchard where an inspector would readily find typical symptoms on the tree exterior (or on large
branches) through visual inspection using an automob ile (a "buggy"), subject to confirmation of the
bacteria by an assay.
4.156 The United States argued that Japan's Pest Risk Analysis ignored US pre-harvest and post-
harvest procedures for quality control. The PRA summarized the controls as follows: "as apples are
generally judged ‘mature' or ‘symptomless' by visual sorting, there is always a risk that something
other than mature, symptomless apple fruit may be . . . present in the shipment." By failing to address
actual US practices and to dispute the effectiveness of those practices, Japan had failed to take into
account ISPM 11.
4.157 The United States recalled that the scientific evidence indicated that no border zone was
necessary because it "provides no additional phytosanitary protection". In addition, no fire blight had
been isolated from mature apples even when harvested from severely blighted orchards.85
4. Measures based on an assessment of risks
4.158 The United States argued that Japan could not claim its new measure in June 2004 was based
on a risk assessment dated September 2004.
4.159 Japan responded that the PRA was available in mid June, but the United States had never
requested it. Japan recalled that the only diffe rence between the June PRA and the September
revision was the reference to the status of studies which were more formally finalized after June.
4.160 The United States claimed that Japan's revised measures could not be "based on" its
September 2004 PRA within the meaning of Article 5.1. Measures premised on the existence of
"mature, symptomless but latently infected appl es" and a non-existent pathway for introduction,
establishment and spread of fire blight did not ra tionally relate to a risk assessment that failed to

83 Panel Report on Japan – Apples, para. 8.289.
84 Revised PRA, Stage 3.
85 The United States referred to R.G. Roberts, Evaluation of buffer zone size and inspection number
reduction on phytosanitary risk associated with fire blight and export of mature apple fruit, Acta Horticulturae
590 (2002).

identify any scientific evidence supporting these premis es. In the absence of any scientific evidence
of a fire blight-risk posed by mature, symptomless apple fruit, any risk analysis which concluded
otherwise would not "take into account available scientific evidence,"
86 and would not meet the
requirements for a risk assessment under Article 5.1. The United States claime d that since Japan had
failed to validate its revised measures through th e production of the new PRA, its revised measures
were not based on a risk assessment and were maintained in breach of Article 5.1.
4.161 The United States argued that the probability of introduction of fire blight via imported
mature US apple fruit was essentially zero because the scientific evidence did not demonstrate that
mature, symptomless apple fruit had ever introduced fire blight into a fire blight-free area, despite, in
many cases, unrestricted trade in apple fruit. The evidence did not establish that mature apple fruit
would harbour endophytic populations of fire blight b acterium or be infected by fire blight, or that
mature apple fruit would harbour epiphytic populati ons of bacteria capable of initiating the disease.
Because the scientific evidence confirmed that imported US apple fruit did not pose a risk to plant life
or health in Japan, and when that scientific ev idence failed to demonstrate a likelihood or probability
of introduction of fire blight via mature apple fruit, the result of the risk assessment could not
reasonably support, or sufficiently warrant, Japan's revised fire blight measures.
E. ARTICLE 5.6
4.162 The United States suggested that a measure restricting imports to mature US apple fruit
would more than meet Japan's ALOP for fire blig ht because the scientific evidence did not establish
that mature, symptomless apple fruit would be in fected with fire blight or harbor endophytic
populations of bacteria; that mature, symptomless, apple fruit would harbor epiphytic populations of
bacteria capable of transmitting fire blight; or that apple fruit, regardless of its maturity, would serve
as a pathway for introduction of fire blight.87
4.163 The United States noted that the Appellate Body in Australia – Salmon found that in order to
raise a successful claim under Article 5.6 of th e SPS Agreement, the complaining party must
demonstrate that (1) a measure exists that was "r easonably available taking into account technical and
economic feasibility"; (2) the measure must be able to achieve "the Member's appropriate level of
sanitary and phytosanitary protection"; and (3) the me asure must be "significantly less restrictive to
trade than the SPS measure contested." 88 The proposed alternative measure in an Article 5.6
argument was by necessity a measure to be implemented by the responding party due to the fact that
the WTO-consistency of the responding party's orig inal measure was being challenged. The United
States proposed that a Japanese measure requiring that imported apple fruit be mature, and therefore
symptomless was supported by both the Original Panel's findings and the voluminous scientific
evidence on fire blight and apple fruit, and would sa tisfy each of the conditions of this three-prong
test.
(a) Reasonably available taking into account technical and economic feasibility
4.164 The United States claimed that a measure restricting imports to Japan to mature US apple
fruit was reasonably available taking into account t echnical and economic feas ibility. US Federal
laws and regulations already ensured that export ap ple fruit were mature. In fact, almost all fire
blight-free areas to which the United States exporte d apple fruit imposed only a mature, symptomless
fruit requirement for apples, thereby allowing US apple fruit meeting US export standards to be
exported without the various pre-harvest restrictions or post-harvest treatments currently required for

86 SPS Agreement, Article 5.2.
87 Panel Report on Japan – Apples, paras. 8.168, 8.171, and 8.176.
88 Appellate Body Report on Australia –Salmon, (WT/DS18/AB/R), para. 194.

export to Japan. 89 US apple growers and packers had comp lied with these laws and regulations and
had met the standards of export markets by em ploying a series of effective commercial quality
controls that ensured apple fruit maturity. The hor ticulturalists, machinery, trained packing facility
workers and trained Federal and/or Federally-licensed State inspectors were available and used for US
exports to international markets. Because these measures were in eff ect and regularly applied to US
apple fruit exports, a measure restricting exports to mature fruit was reasonably available and
technically and economically feasible.
4.165 The US Export Apple Act required that exported fruit meet minimum Federal grade
standards.90 Exported apple fruit must have satisfied, at a minimum, the requirements for "US No. 1
grade",91 which required that apples were:
mature but not overripe, carefully hand-picked, clean, fairly-well formed; free
from decay, internal browning, internal breakdown, bitter pit, Jonathan spot,
scald, freezing injury . . . and broken skin or bruises except those which are
incident to proper handling and packing[;] free from damage caused by . . .
sunburn or sprayburn, limb rubs, hail, drought spots, scars, stem or calyx cracks,
disease, insects, [or] damage by other means.
92

4.166 The United States noted that violators of the provisions of the US Export Apple Act might be
debarred from receiving export certificates and fined.
93 Debarment would render a facility's apple
fruit ineligible for export, thereby placing the facility at dire economic risk in the event that its
commercial quality controls should hypothetically fa il. The United States emphasized that the risk of
failure of commercial quality controls was hypothetical.
4.167 Japan countered that the United States proposed th at products should meet "US No.1 Grade"
specifications but did not include specifics about test methods for verification. By failing to provide
test methods or ways to achieve the specification, the United States had not established any "measure"
worth considering. The concept failed to take into account (potential) risks associated with (i) failure
of the inspection mechanism at the shipping (rel ease) stage, or (ii) the new discovery of non-
observable potential infection inside the apple fruit. Japan claimed that the United States argued in
essence that the maturity of apple fruit was irrelevant and that the United States should be allowed to
ship whatever apple fruit it found fit for export under its current shipping practice.

89 The United States exports apple fr uit to 61 countries that impose no measures on US apple fruit for
fire blight, other than requiring a phytosanitary certificate indicating that the fruit is free from harmful
organisms, including fire blight.
90 US Export Apple Act, 7 USC. § 581 (Exhibit USA-11).
91 Apples and Pears Regulations, 7 C.F.R. § 33.10 (Exhibit USA-12).
92 United States Standards for Grades of Apples, 7 C.F.R. §§ 51.301, 51.302 (requirements for US No.
1 same as for "US Fancy," except for "color, russeting, and invisible water core"). (Exhibit USA-13). For
purposes of these Standards, "mature" means that "the apples have reached the stage of development which will
insure the proper completion of the ripening process." 7 C.F.R. § 51.312.
93 7 USC. § 586 ("After opportunity for hearing the Se cretary is authorized to refuse the issuance of
certificates ... for periods not exceeding ninety days to any person who ships or offers for shipment any apples in
foreign commerce in violation of any of the provisions of this chapter. Any person or any common carrier or
any transportation agency knowingly violating any of the provisions of this chapter shall be fined no less than
$100.00 nor no more than $10,000 by a court of competent jurisdiction.") (Exhibit USA-11); United States
Regulations for Fresh Fruits, Vegetables and Other Products (Inspection, Certification, and Standards), 7 C.F.R.
§ 51.46 ("Any or all benefits of the act may be denied any person for any of the following reasons: . . . (d) any
willful violation of the regulations in this subpart may be deemed sufficient cause for debarring the person found
guilty thereof from any or all benefits of the acts, af ter notice and opportunity for hearing has been accorded
him.") (Exhibit USA-15).

4.168 Japan highlighted that one branch science exis ted which dealt with how to address possible
human errors. Furthermore, Dr Smith had acknowle dged that the inspection by the authorities might
not provide adequate information about the quality of shipments due to the sampling protocol.
4.169 The United States countered that the application of US Federal Grade standards was only one
of the numerous layers of industry and regulat ory practices and requirements which US growers
applied when growing, harvesting, packing and exporting apple fruit. These practices and
requirements had assured that exported fruit was matu re. US quality control measures for apple fruit
involved several pre-harvest and post-harvest steps that ensured that the final exported product is
mature apple fruit. The measures included: pre-harvest testing of soluble solids, starch-iodine and/or
firmness to ensure that apple fruit meet requi rements for storage as well as consumer demands;
consultation with industry horticulturalists in maki ng harvesting decisions; storage on arrival at the
packing facility in regular cold rooms or cont rolled atmosphere ("CA") cold rooms; packing
according to one of two available protocols, "direct pack" or "pre-size"; and inspection by Federal
and/or Federally-licensed State inspectors.
94 US apple producers would not ship immature apple fruit
since this type of shipment would be rejected by the importer, result in economic loss for the exporter,
adversely affect the reputation of US apple fruit in export markets, as well as potentially run afoul of
the provisions of the US Export Apple Act. Indeed there was no evidence that the billions of apple
fruit shipped internationally (a vast number of which were shipped without SPS measures for fire
blight) have ever introduced fire blight into a fire blight-free area.95
4.170 Japan noted that the alternative measure proposed by the United States was nothing other
than the "current commercial practice" which the in dustry applied elsewhere. Not only was there no
evidence or assurance that the products from this process would be "mature, symptomless" in terms of
their quality, but there was no evidence that the process specifications would achieve Japan's ALOP.
4.171 Japan claimed that according to the United States the Authorized Certification Official (ACO)
used a sampling programme to eval uate whether a shipment of apples could obtain export certificate.
USDA had explicitly disclaimed any liability which mi ght arise from the export certification. Japan
argued that the incentive to comply with standards was absent if neither the ACO nor the shippers or
growers were held liable for errors relating to apple shipments.
4.172 Japan argued that the United States sought to rely on the previous export experience with
other countries to which the United States previously shipped apple fruit without any phytosanitary
measure and which did not suffer from the spread of fire blight from the shipments. Japan
emphasized that the natural environment of th ese areas (including Chinese Taipei) was significantly
different from that of Japan and therefore was not immediately applicable. Japan requested that the
United States disclose previous records of its export experience with these countries/areas and provide
information regarding any shipment rejected by the plant quarantine authorities or by recipients of the
shipments and the causes for the rejection.
4.173 The United States stressed that the scientific evidence established that billions of apple fruit
had never transmitted fire blight and mature, sy mptomless apple fruit were not a pathway for the
disease. There was no record of a US apple producer having shipped immature apple fruit.

94 "Pre-Harvest and Post-Harvest Storage, Grading, and Handling Practices of Apples" (Exhibit USA-
1).
95 Panel Report on Japan – Apples , para. 8.149. The United States has shipped approximately 53.5
billion apples world-wide over the last 37 years (this statistic combines the last two years' apple exports from the
US (572,258MT (2002), 528,309MT (2003)) with the 48.5 billion apple fruit figure presented by the United
States in 2001). See First Written Submission of the United States, September 4, 2002, para. 27.

(b) Appropriate level of sanitary and phytosanitary protection
4.174 The United States commented that a measure restricting imports to mature apple fruit
achieved Japan's appropriate level of phytosanitary protection – a level of protection that would allow
Japan to prevent the introduction of fire blight into Japan and maintain its fire blight-free status. This
level of protection might be achieved by a measure equivalent to an import prohibition. In light of the
scientific evidence relating to mature apple fruit and fire blight, a restriction of imported apple fruit to
mature apple fruit would be an equivalent measure to an import prohibition, thereby achieving Japan's
ALOP.
4.175 Japan commented that Japan's ALOP was the level of protection that would provide a
security level which would not compromise Japan's status as a fire blight-free country through
commercial shipment of fresh apple fruit, in the ab sence of illicit acts. Individual travellers carrying
small shipments (illegally) might pose a threat, but th e risk was insignificant and inevitable. Japan's
ALOP against fire blight had not changed even though the measure was changed: a level equivalent to
import prohibition.
4.176 The United States argued that a measure restricting a pple fruit imports to mature US apple
fruit would more than achieve Japan's ALOP beca use, as the Original Panel had found, scientific
evidence did not establish that mature, symptomless apple fruit would be infected with or harbor
endophytic populations of E. amylovora; that mature, symptomless apple fruit would be infested with
epiphytic populations of E. amylovora capable of transmitting fire blight; or that apple fruit,
regardless of its maturity, would serve as a pathwa y for the introduction of fire blight into Japan.
96
Therefore, a measure requiring shipments to be mature US apple fruit would meet Japan's ALOP
because mature apple fruit did not present a risk of introduction of fire blight into Japan.
4.177 The United States commented that scientific evidence and history supported the conclusion
that restricting import to mature US apple fruit satisfy Japan's ALOP. This conclusion stems from the
comprehensive and time-tested quality controls employed by the US apple industry and the absence of
evidence that the United States had shipped anything other than mature apple fruit. In addition, no
scientific evidence indicated that unrestricted trade in apple fru it had ever been the means of
introduction of fire blight.
97 Further, even if an immature fruit hypothetically had escaped US quality
controls, the scientific evidence did not establish that any pathway for introduction of fire blight into
Japan would be completed by apple fruit, regardless of its maturity. 98 Accordingly, Japan's ALOP
would still be met even in the event of a hypothetical breakdown of US quality controls.
4.178 Japan noted that the Original Panel's finding of completion of the pathway was made relative
to the measure then in place, and should not be in terpreted to imply a comprehensive denial of any
risk whatsoever. Moreover, Japan's new evidence, as interpreted togeth er with the previous evidence,
signalled a risk posed by apples from a (severely) b lighted orchard, which might not be healthy or
mature. The US proposal did not address the issu es arising from permitting exportation of US apple
fruit from a "(severely) blighted" orchard, or the ri sk of infection or sorting errors for apples from
such an orchard.
4.179 Japan claimed furthermore that the United States mischaracterized the finding of the Original
Panel, because the Original Panel's discussion of completion of the pathway was not limited to the

96Panel Report on Japan – Apples, paras. 8.136, 8.168, 8.171, and 8.176.
97 Regarding the potential for failure of quality controls in general, the panel of experts noted that the
risk was "remote", "very remote", "neg ligible" and "extremely low so I think altogether it is not an essential
question that we have to rely on." Panel Report on Japan – Apples , Transcript, Annex 3, paras. 329, 331
(Drs Smith and Hale), and para. 330 (Dr Geider), para. 332 (Dr Hayward.
98 Panel Report on Japan – Apples, paras. 8.168, 8.171, and 8.176.

mature, symptomless apple fruit.
99 If the finding would be interpre ted as endorsement of exportation
of any apple fruit, whether mature or immature, or healthy or infected, then there would not be any
justification for taking any measure, including the export/import inspection, or the proposed
restriction to mature, symptomless apples. The Un ited States could not rely solely on the finding of
the Original Panel on completion of the pathway, in its attempt to establish a prima facie Article 5.6
case.
4.180 The United States emphasized that there was no evidence that the United States had ever
exported anything other than mature, symptomless ap ple fruit, and there were numerous requirements
and practices in place which assured this. The US st atements referred to by Japan were only for the
purpose of making the point that, even if immature fruit were somehow, hypothetically exported, the
scientific evidence did not establish that the pathway would be completed.
4.181 Japan noted that the US claim that there was "no evidence that the United States has ever
exported anything other than mature, symptomless ap ple fruit." was an attempt to narrowly define the
relevant history. A shipment of pear fruit from continental United States had been discovered to be
heavily blighted at a port of Hawaii. 100 Whether it had been pear fruit or apple fruit was not material
in this context; the producer/shipper obviously had failed to control the quality of the fruit commodity
at the shipping/release stage.
4.182 The United States stressed that commercial controls on pear fruit, as well as apple fruit, had
evolved significantly since 1943 when the anecdotal shipment of pear fruit allegedly arrived in
Hawaii (see paragraph 4.79)
(c) Significantly less restrictive to trade
4.183 The United States argued that a restriction of imports to mature US apple fruit would be
significantly less trade-restrictive than the nine-measure import regime currently maintained by Japan.
The extremely low level of US apple fruit imports to Japan and the corresponding high-levels of
economic risk to which US apple growers were e xposed indicated the trade restrictive effect of
Japan's measures. The various elements of Japan's import regime, such as fire blight-free orchards,
inspections, fire blight-free buffer zones, and chlorine treatment restricted trade by eliminating mature
and therefore symptomless apple fruit from export to Japan. The United States concluded that under
Japan's system, a US apple grower placed himself at risk when he decided to plant an orchard for
export to Japan.
4.184 The United States further argued that under Japan's current regime, there were numerous
scenarios in which mature apple fruit – which would not present a risk of introduction of fire blight
into Japan – were nonetheless disqualified for export to Japan. For example, if a single fire blight
strike was detected in a grower's orchard, or in the buffer zone surrounding the orchard, the grower's
investment was lost as his apple fruit were no longer exportable to Japan. As a result of this risk,
Japan's trade-restrictive apple fruit import regime had, over time, eliminated the incentive for US
growers to attempt to export to Japan, and thus protected Japanese growers from competition.
4.185 The United States noted that the proposed alterna tive measure of restricting imports to mature
apple fruit was significantly less trade-restrictive. Under the proposed alternative, entire orchards
would no longer be disqualified for discovery of a single fire blight strike on a tree or in a buffer zone,
and all mature apple fruit would be eligible for export to Japan. If imports were restricted to mature
apple fruit, American apple growers would financially be able to compete to fill orders for export to
Japan.

99 Panel Report on Japan – Apples, para. 8.171.
100 University of California (1965).

4.186 The United States argued that a range of alternative measures existed that were both less
trade-restrictive and would more than achieve Jap an's ALOP. Alternatives could include requiring
that imported mature fruit be accompanied by a decl aration on the export certificate that, pursuant to
current sampling protocols, zero immature fruit were detected in the shipment. Or, apple fruit for
export to Japan could be subjected to additional ma turity testing, as proposed by the United States in
the negotiations with Japan that took place during th e during reasonable period of time. Pursuant to
this testing programme, should a hypothetical shrive lled fruit be detected in a lot for shipment to
Japan, the fruit would be subjected to starch/iodine testing to determine whether the shrivelling was
due to apple fruit immaturity. Should it be determ ined that the shrivelling was a result of apple fruit
immaturity, the lot would be disqualified for export to Japan. 101 In addition, an alternative might
include the import of mature apple fruit coupled with a phytosanitary certificate. Because the
scientific evidence did not establish that mature, sy mptomless apple fruit would be infected with, or
harbor endophytic populations of E. amylovora; that mature, symptomless apple fruit would harbor
epiphytic populations of bacteria capable of transm itting fire blight; that apple fruit would serve as a
pathway for introduction of fire blight; or that, despite billions of apple fruit shipped world-wide, 102
apple fruit had ever transmitted fire blight, all of th ese alternatives would by definition be less trade-
restrictive than Japan's current import regime and would more than meet Japan's ALOP.
4.187 However, because these alternative measures woul d not be scientifically justified, and would
more than achieve the level of protection, the United States was not suggesting that these measures
would be consistent with the SPS Agreement. Rath er, the United States was using them to illustrate
that Japan's measures were far more trade-restrictive than required.
4.188 Japan noted that the United States claimed that the "alternative measure" was the one which
would restrict importation to "mature, symptomless apple fruit." Even though the Original Panel
found that the "mature, symptomless" was a "relatively objective concept," 103 it never found that what
the US apple industry ships would be "mature, sympto mless" apple fruit. The issue of how to ensure
that quality, or the relevant specifications and t est methods, was therefore an entirely open issue in
this proceeding.
4.189 Japan stressed that "mature, symptomless a pple fruit" was a "product specification." These
types of specifications typically described (i) requi red qualities/parameters and (ii) test methods to
ensure the qualities together with acceptable allowances. 104 The United States had not provided the
"mature, symptomless" specifications. Instead, it described the "multiple processes" to ensure the
quality of apple fruit shipped by US growers and equated these processes with the specifications. The
United States was calling the apples produced thro ugh a process compliant with these specifications
as "mature, symptomless," without regard to their true quality. As such, the "mature, symptomless"
apples as defined by the United States might or might not match the definition of mature,
symptomless apple fruit.
4.190 Japan noted that whereas the United States s ought to rely on the security offered by the
industry practices taken at the harvest ("end of the line") stage, Japan sought to ensure the quality at
the orchard (production) level. Japan's approach was consistent with the caution expressed by the
experts of the Original Panel regarding apple fruit fr om a "(severely) blighted" orchard, while the US

101 The United States argued that th ese additional steps would be furthe r assurances that the exported
fruit would be mature apple fruit. The United States st ressed, however, that its curre nt industry practices were
such that we simply did not encounter shriveled or immature fruit at the "end of the line", i.e., once harvested
fruit had been subjected to the numerous quality controls currently utilized by the US apple industry.
102 Panel Report on Japan – Apples, paras. 8.136, 8.168, 8.171, and 8.176.
103 Panel Report on Japan – Apples, para. 8.113.
104 Japan referred to Standard for apples marked within the State of Washington
(http://www.leg.wa.gov/WAC/index.cfm?fuseaction=chapterdigest&chapter=16-403). The standard explicitly
accepts immature fruit up to 10 per cent.

alternative was not. There was an evident differen ce in the level of protection offered by Japan's
measure and the alternative proposed by the United States.
F.
ARTICLE XI OF GATT
4.191 The United States claimed that Japan's measures were not legitimate SPS measures. Instead,
they were non-tariff trade barriers in breach of Ar ticle XI of the General Agreement on Tariffs and
Trade 1994 ("GATT 1994"). The United States noted that Article XI of the GATT 1994 stated that
"[n]o prohibitions or restrictions other than duties, taxes or other charges, whether made effective
through quotas, import or export licenses or other measu res, shall be instituted or maintained by any
Member on the importation of any product of the territory of any other Member." There was no
dispute that Japan's measures restricted imports of apples through means othe r than duties, taxes or
other charges.
4.192 Japan commented that since the new measure was c onsistent with the relevant Articles of the
SPS Agreement, it was presumed to be covered by Article XX(b) of GATT1994, under Article 2.4 of
the SPS Agreement.
G.
ARTICLE 4.2 OF THE AGREEMENT ON AGRICULTURE
4.193 The United States claimed that Japan's measures were also non-tariff barriers in breach of
Article 4.2 of the Agreement on Agriculture which provided that "Members shall not maintain, resort
to, or revert to any measures of the kind which have been required to be converted into ordinary
customs duties, except as otherwise provided for in Article 5 and Annex 5." According to the
footnote to Article 4, measures required to be co nverted into ordinary customs duties "included
quantitative import restrictions, variable import le vies, minimum import prices, discretionary import
licensing, non-tariff measures maintained through state-trading enterprises, voluntary export
restraints, and similar border measures other than ordinary customs duties." Again, there was no
dispute that Japan's measures were restrictions on impor ts of apples and that these restrictions had not
been tariffied.
4.194 Japan noted that the new measure was consistent with Article 4.2 of the Agreement on
Agriculture, as it was a SPS measure fully consis tent with the SPS Agreement and thus was
maintained under "other general, non-agriculture-s pecific provisions of GATT 1994 or of the other
Multilateral Trade Agreements in Annex 1A of the WT O Agreement," as defined in footnote 1 to that
Article.
V. SUMMARY OF THIRD PARTY SUBMISSIONS
A. AUSTRALIA
5.1 Australia expressed a strong interest in the following areas:
• the nature of an Article 21.5 proceeding and the Panel's jurisdiction to examine certain
measures and claims;
• the relationship between Articles 2.2 and 5.1 of the SPS Agreement; and
• the Panel's consideration of scientific information and need to consult scientific experts.

5.2 Australia noted that the characterisation and in terpretation of the scientific material presented
by Japan was a strongly contested issue and stated that the Panel should have recourse to scientific
experts to assist it in relation to the material presen ted by Japan. Australia requested the Panel ensure

that all third parties be given an opportunity to respond in writing to all relevant written questions
presented to the parties in the proceedings, in line with Articles 10 and 13 of the DSU.
B. BRAZIL
1. Article 5.1
5.3 Brazil considered that, in order to determin e whether the measure adopted by Japan was in
fact a "measure taken to comply", the Panel s hould first determine whether the "new" evidence
brought by that country proves that a "mature, symp tomless apple fruit" was i ndeed a vector of fire
blight to a host plant and constitutes, therefor e, an adequate risk assessment for the purposes of
Article 5.1. If the revised SPS measure taken w as not supported by a PRA appropriate to the
circumstances, in accordance with the provisions of Ar ticle 5.1, it should not therefore be considered
as a "measure taken to comply". Brazil noted that even if the 2004 PRA was based on "new"
evidence, it could still not be deemed to be a valid "risk assessment", because Japan failed to
demonstrate that "mature, symptomless apple fruit" could be "latently infected" and that it could serve
as a "potential pathway" for the transmission of fire blight to host plants in Japan.
2. Article 2.2
5.4 Brazil observed that Japan's "new" scientific ev idence did not seem to prove that "mature,
symptomless apple fruit": (i) would be infected by fire blight; (ii) would harbour endophytic
populations of the fire blight-causing bacteria or epiphytic populations of bacteria capable of
transmitting fire blight; or (iii) would serve as a mean s or pathway of introduction of fire blight to a
fire blight-free area. As the United States and Ne w Zealand had noted the "new" evidence "failed to
contradict or amend the reams of peer-reviewed and time-tested science on apple fruit and fire blight".
The experimental processes used to reach these conc lusions, moreover, could hardly be expected to
occur under natural conditions.
5.5 Brazil questioned whether the new evidence had r eally informed or influenced the revised
measures by Japan, since the new evidence (which had not yet been published) had only been
completed after the 30 June Detailed Rules. The re vised measure taken by Japan apparently did not
fulfil the requirements of Article 2.2 because there was not a "rational or objective relationship
between each restriction and the scientific evidence".
C. C
HINA
1. Scientific experts
5.6 Because the new studies had played an important role in Japan's revised PRA, and formed the
foundation of Japan's revised measure, China believe d that Panel should consult experts on the new
scientific issues in order to evaluate whether four new studies introduced by Japan constituted
scientific evidence. In China's view, most elements of Japan's revised measures had also been
included in the original measure. China argued th at the scientific validity of the new studies would
determine whether Japan should further amend its SPS measures affecting the importation of apples
from the US.
2. Article 5.6 of the SPS Agreement
5.7 China believed that if (1) a measure could be identified; and (2) such a measure was under
implementation, the measure was reasonably ava ilable taking into account technical and economic
feasibility. The United States in its first written submission had defined its alternative measure as
restricting trade to mature US apple fruit. China noted that the US industry already employed a series

of quality controls on apple fruit that ensured their ma turity in order to meet the requirements of these
laws and regulations. The alternative measure intr oduced by the United States was also significantly
less restrictive to trade by eliminating Japan's requirement during the production and shipping
process.
5.8 China commented that since a Member had the right to determine its appropriate level of
protection, this dispute should examine whether the US proposed alternative measure could meet
Japan's level of protection. China argued that if the scientific evidence remained unchanged since the
Original panel proceeding, then the alternative me asure introduced by the United States could meet
Japan's level of protection.
D.
EUROPEAN COMMUNITIES
5.9 The European Communities noted that the DSU envisaged the possibility of dispute
settlement progressing in stages:
(a) an initial Panel proceeding;
(b) appeal to the Appellate Body;
(c) recommendations and rulings by the DSB;
(d) disagreement as to the existence or cons istency with a covered agreement of
"measures taken to comply" with the original recommendations and rulings;
(e) compensation or the suspension of concessions; and
(f) binding arbitration.
5.10 The European Communities noted that an Artic le 21.5 proceeding was subject to procedures
that were different from an Original Panel and brough t the Parties one step clos er to the possibility of
the suspension of concessions. Th e possibility that Parties could agree to continue to suspend
arbitration pending a second Article 21.5 DSU pane l would not in itself prevent one party from
proceeding to the arbitration stage, following a first Article 21.5 DSU proceeding.
5.11 A "measure taken to comply" could be att acked in the context of Article 21.5 DSU
proceedings even in relation to provisions of th e covered agreements not invoked in the original
proceedings.105 The need for prompt settlement of di sputes meant that a Member could not
indefinitely delay the progression foreseen in th e DSU towards the possibility of the suspension of
concessions by replacing one unlawful measure with another unlawful measure, albeit unlawful for
different reasons.106
5.12 On the other hand, a complaining Member could only move to the pre-suspension phase of an
Article 21.5 DSU procedure if it had first secured a DSB recommendation or ruling that the defending
Member must implement; and only insofar as ther e was disagreement as to the existence or
conformity of measures taken to comply. In this context, the Appellate Body had made it clear that
the question of what was the measure must be dis tinguished from the question of what was the claim,

105 Appellate Body Report on US-Shrimp (Article 21.5 - Malaysia) , paras. 84-86; Appellate Body
Report on Canada – Aircraft (Article 21.5 - Brazil), paras. 39-41.
106 Panel Report on Australia – Salmon (Article 21.5 – Canada), para. 7.10, point 9.

even if the two issues were "intertwined". 107 A central jurisdictional issue in such cases was therefore
what was the "measure taken to comply".
5.13 The European Communities claimed that if a Pa nel chose to exercise judicial economy in
respect to a claim regarding a measure, or if a Panel made a ruling on what is the measure at issue, in
principle, if a Member did not agree, it should a ppeal. The scope of any subsequent implementation
proceedings could be affected if there were no a ppeal. In particular if the complaining Member
wished to raise a matter again, it might have to do so in a fresh panel, rather than in the context of
Article 21.5 DSU proceedings.
1. United States request for preliminary ruling
5.14 The European Communities agreed with the United States in its request for a preliminary
ruling that draft or proposed measures were not "m easures taken to comply" within the meaning of
Article 21.5 DSU. However panels should take into account facts or measures that arose after their
establishment, when this was necessary to "secure a positive solution to the dispute" and if they might
inform the Panel's assessment of other matters. If the Operational Criteria had been adopted by the
end of these proceedings, and this Panel had fo und that those Operational Criteria brought the
measure into conformity with the covered agreem ents, then this Panel might find that Japan had
complied with the recommendations of the DS B and that no further recommendation was
necessary.108
5.15 The European Communities did not consider that such measures, even if un-adopted, should
necessarily be removed from the reco rd, or ignored by the Panel. Such documents might also shed
light on the good faith of the Parties in the context of implementation, which might also be relevant
this Panel's deliberations.
5.16 The sense in which the Operational Criteria were "irrevocable" was unclear, if the possibility
for modifying them remained, as long as they had not been "accepted" by the United States.
However, statements by a Member as to how certain measures would be interpreted or applied in the
future might be sufficient for the purposes of di spute settlement. The European Communities argued
that the United States was misguided in seeking a pre liminary ruling that would eliminate at this stage
of the proceedings the Operational Criteria from any further consideration by this Panel, given that the
Operational Criteria could be relevant for certain substantive issues.
2. Article 21.5 of DSU proceedings
(a) Submissions of the parties
5.17 The European Communities noted that the partie s' submissions were unclear on the question
of the scope of these Article 21.5 DSU proceedings. The United States particularly referred, as
"central to the DSB's findings", to conclusions in certain paragraphs 109 in sections D.4 and D.5 of the
Original Panel Report, namely: there was not suffi cient scientific evidence that mature, symptomless
apples were likely to harbour bacteria capable of transmitting fire blight; and it had not been
established with sufficient scientific evidence that the last stage of the pathway would likely be
completed; or that apple fruit were likely to serve as a pathway for the entry, establishment or spread
of fire blight in Japan.

107 Appellate Body Report on EC-Bed Linen (Article 21.5 – India), para. 78.
108 Appellate Body Report on Chile – Price Band System , paras. 126 to 144. See also Panel Report on
India-Autos, paras. 8.4-8.28.
109 Panel Report on Japan – Apples, paras. 8.136, 8.168, 8.171 and 8.176.

5.18 Japan referred to conclusions in section D.6 of the Panel Report: regarding the 500 meter
buffer zone and three times yearly inspection; and the absence or inadequacy of Japan's risk
assessment. Japan had asserted that this Panel shou ld "most appropriately and effectively" proceed
"by looking into the measure's compliance with these recommendations and rulings". It noted that the
Panel had not made findings or c onclusions in relation to the othe r provisions referred to by the
United States. However, conclusions sought by Japan in these proceedings, and the arguments
submitted in support of those conclu sions, extended to all the matters raised in the United States
submission.
110
5.19 Article 21.5 DSU provided that "Where there was disagreement as to the existence or
consistency with a covere d agreement of measures taken to co mply with the recommendations and
rulings such dispute shall be decided through recourse to these dispute settlement procedures,
including wherever possible resort to the Original Panel". Thus, in principle, this Panel should assess
the "measures taken to comply" by Japan with th e "recommendations and rulings" [of the DSB] in the
original dispute, for consistency with the provisi ons of the covered agreements invoked by the United
States in its request for the establishment of th is Panel, and in its first written submission. 111 T h e
European Communities suggested that Japan had waived its rights regarding consultation.112
(b) Recommendations and rulings, findings and conclusions
5.20 The words "recommendations and rulings" in Article 21.5 DSU referred to the
recommendations and rulings of the DSB in the original dispute. In the original dispute, by adopting
the Appellate Body Report and the Panel Report as upheld by the Appellate Body Report including
the Panel Report to the extent that it was not appealed, the DSB had accepted the recommendations
and rulings contained in those documents as its own.
5.21 Various provisions of the DSU confirm that "rulings" might also be "adopted" by the DSB, in
the same way that "recommendations" of a Panel or the Appellate Body might be adopted by the
DSB, providing strong contextual support for the proposition that Panel Re ports and Appellate Body
Reports might also contain "rulings" within the meaning of Article 21.5 DSU. 113 Various other
provisions of the DSU referred expressly to ruli ngs adopted by Panels or the Appellate Body. 114 The
European Communities argued that it was perfectly c onsistent with the DSU th at Panel and Appellate
Body Reports might also contain rulings, which, when adopted by the DSB, would become
recommendations and rulings of the DSB for the purposes of Article 21.5 DSU. Further confirmation
was provided by the fact that the "ruling" vocabul ary had been consistently used by the Appellate
Body in its original report in this case,
115 as in previous cases.
5.22 The words "find" and "conclude" in adopted reports might be generally considered
synonymous with the word "ruling". When the DSB adopted a Panel or Appellate Body finding or
conclusion, it became a DSB ruling. Thus, if th e Appellate Body upheld a finding by a Panel that a
Member had acted inconsistently with one of its obligations under the cove red agreements, and the
DSB adopted the Reports, then the DSB had, in eff ect, given a "ruling" that the Member had acted
inconsistently with its obligation, and accordi ngly also adopted the Panel and Appellate Body
recommendation that the Member be requested to bring its measure into conformity.

110 Japan First Written Submission, paras. 81 to 89.
111 Appellate Body Report on US – Shrimp (Article 21.5 - Malaysia) , paras. 84 to 86; Appellate Body
Report on Canada – Aircraft (Article 21.5 - Brazil), paras. 39-41.
112 Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US), para. 63.
113 DSU, Articles 21.3(b), 21.3(c) and 22.8.
114 DSU, Articles 26.1, and 26.2 (twice).
115 Appellate Body Report on Japan – Apples, paras. 4, 85, 92, 123, 128, 132, 136, 149, 159, 186, 217,
and 243.

5.23 The original Appellate Body Report recommended that "the Dispute Settlement Body request
Japan to bring its measure, found in this Report, an d in the Panel Report as upheld by this Report, to
be inconsistent with its obligations under th e SPS Agreement, into conformity with that
Agreement".116 For the purposes of implementation a nd Article 21.5 DSU proceedings, all the
recommendations of the Original Panel and Appe llate Body, including all the findings and
conclusions on which they are necessarily based , as adopted by the DSB, as DSB recommendations
and rulings, were relevant.117
(c) Judicial economy by the Original Panel and the original measure at issue
5.24 The Original Panel concluded that it should co nsider all the ten elements together as the
measure at issue in the original dispute, and this decision was not contested on appeal. With regard to
Article 2.2, the Panel reached findi ngs and conclusions in relation to certain elements (the 500 meter
buffer zone and three yearly inspection) of the m easure at issue that it had considered were "most
obviously maintained without scientific evidence". 118 It did not make any specific findings or
conclusions of inconsistency with Ar ticle 2.2 in relation to the other el ements of the measure at issue,
considered in isolation. Instead the Panel stated that its more general findings rendered the measure
as a whole inconsistent with the SPS Agreement.
5.25 The European Communities noted that neither the United States nor Japan had appealed either
on the question of what constituted the original me asure at issue, or on the absence of specific
determinations on individual elements of the measure. 119 Nevertheless, the European Communities
noted, the United States called for the compliance Pa nel to evaluate specific elements of Japan's
revised import regime on apple fruit to support a prompt and effective resolution of this dispute.
(d) Measures taken to comply
5.26 The European Communities noted that the Pa nel might need to make a preliminary
determination about what are the "measures taken to comply" in order to determine the scope of these
proceedings.120 Of the four original pieces of Japanese legislation, only the Detailed Rules, which
were modified by the 30 June Detailed Rules, ha d changed. The European Communities argued that
if this Panel found that the entirety of those parts of the 30 June Detailed Rules dealing with fire blight
were "measures taken to comply", then it would need to assess the entirety of that new measure for
consistency with the provisions of the covered agreements invoked by the United States in its request
for establishment of this Panel. If, on the other hand, this Panel found that the "measures taken to
comply" were only those elements of the 30 Ju ne Detailed Rules that were different from its
predecessor, then it would have to find that these pr oceedings were more limited in scope. In that
case, the United States should request a fresh panel to address those elements of the original measure
at issue for which judicial economy had been exercised, not an Article 21.5 DSU procedure.
5.27 The European Communities commented that absent any import restriction, the mere existence
of a risk assessment with which another Member disag reed would not, in itself, be sufficient for the

116 Appellate Body Report on Japan – Apples, para. 244.
117 As submitted by Canada in Australia - Salmon, with the implied agreement of the Appellate Body :
Appellate Body Report on Australia - Salmon, paras. 222-226.
118 Panel Report on Japan – Apples, paras. 8.123-8.176.
119 As Canada did, for example, in Australia - Salmon : Appellate Body Report, Australia - Salmon ,
paras. 217 and 279 (h); and as India failed to do in the EC-Bed Linen case : see Appellate Body Report, EC -
Bed Linen (Article 21.5 - India), paras. 71, 80, 81 and 92 to 96. See also Appellate Body Report, Mexico – Corn
Syrup (Article 21.5 – US), paras. 78 to 79.
120 Appellate Body Report, EC-Bed Linen (Article 21.5 - India) , para. 78: "If a claim challenges a
measure which is not a "measure taken to comply", that claim cannot properly be raised in Article 21.5
proceedings".

purposes of commencing dispute settlement proceedings . However, given that Article 5.1 required
SPS measures to be based on a risk assessment, it fo llowed that in circumstan ces where there was an
SPS measure, any risk assessment on which it was said to be based necessarily fell within the scope of
dispute settlement. Consequently, insofar as the DS B recommendations and rulings in the original
dispute concerned the original measure at issue, th ey might also concern the risk assessment on which
the original measure was purportedly based. It follo wed that when, in order to comply with the DSB
recommendations and rulings, the risk assessment w as changed or a new risk assessment was carried
out, and put forward as the basis for the "measures taken to comply", then the risk assessment was
also within the scope of subsequent Article 21.5 DSU proceedings.
5.28 The European Communities suggested that th e submission by Japan of allegedly new
scientific evidence could be handled in two ways. The first approach would treat the new scientific
evidence as facts not previously co nsidered by any Panel. In these circumstances, if a Member
adopted a new SPS measure based on new scientific evidence, it might not be taking a measure to
comply with DSB recommendations and rulings, bu t rather adopting a new measure in response to
new facts. In this case, if the original complain ing Member wished to submit the new measure to
dispute resolution, it would need to do so via a fresh panel, and not via Article 21.5 DSU.
5.29 Alternatively, the new studies submitted by Jap an could be the subject of these Article 21.5
DSU proceedings. The Panel might reach this conclu sion on the basis that the 30 June Detailed Rules
was a measure taken to replace the original measure at issue, and to comply with the original DSB
rulings. The Panel might also take into account whether or not the defending Member had itself
undertaken or commissioned the research resulting in the new scientific evidence.
121 H o w e v e r ,
because of the nature of Article 21.5 DSU proceedings, this Panel should not simply assume that the
new scientific evidence submitted by Japan was within the scope of this Panel, but should make an
objective assessment of this issue, and explain the reasons for any findings or conclusions it reaches.
5.30 The European Communities also noted that it was not clear from the United States submission
whether it was alleging the non-existence of complia nce measures. If the United States would allege,
for example, the non-existence of measures taken to comply by Japan in relation to certain findings of
the Original Panel, such as the findings in paras 8.12 3 to 8.176 of the Original Panel Report, then that
might bring these matters within the scope of th ese Article 21.5 DSU proceedings. However, the
basic question would still remain: were the findings of the Original Panel on these points sufficiently
complete and precise to allow the process to move into the implementation phase?
(e) Final Dispute Resolution
5.31 According to Article 21.5 of the DSU proceeding, this Panel might not lawfully re-consider
findings or conclusions in the Original Panel Repor t upheld on appeal, or not appealed. The parties
could not make the same claim in respect of the sa me element of a measure taken to comply, if such
claim was disposed of in the original dispute by the Panel or Appellate Body.122
3. Article 2.2
5.32 This Panel must assess whether or not the new elements of the 30 June Detailed Rules
adopted by Japan are consistent with Article 2. 2. Depending on what was the "measure taken to
comply" this Panel might also need to assess whethe r or not elements of Japan's measure other than
those "most obviously" not based on sufficient scientific evidence were consistent with Article 2.2. In

121 Panel Report on Japan – Apples, para. 8.46.
122 Appellate Body Report on Canada - Aircraft (Article 21.5 – Brazil) , paras. 40 and 41; Appellate
Body Report on US - Shrimp (Article 21.5 - Malaysia) , paras. 84 to 110; Appellate Body Report on EC - Bed
Linen (Article 21.5 – India), paras. 79-99.

such assessment, this Panel must take into account the new scien tific evidence presented by Japan,
and weigh it together with old and new evidence.
5.33 The European Communities noted that Japan did not appear to have adopted provisional
measures within the meaning of Article 5.7. There might be circumstances in which the scientific
evidence was sufficient for a risk assessment, and any risk was below a Member's appropriate level of
protection. New scientific evidence then emerged suggesting that the risk was in fact higher than
previously thought. Typically, in these circumstances a Member might first adopt provisional
measures, pursuant to Article 5.7. The Member would then keep the situation under review and
eventually, as the science developed further, either convert the provisional measure into a definitive
measure, or remove it, reverting to the original situation. The European Communities contended that
in the case of revolutionary science new scientific ev idence could justify a swing from the perspective
that certain SPS measures were not justified to the perspective that a definitive measure was justified,
without passing through this intermediary stage of a provisional measure.
4. Article 5.1
5.34 If the Panel found the 2004 PRA to meet the requirements of a risk assessment within the
meaning of Article 5.1, the Panel would need to fu rther consider whether or not the "measures taken
to comply" are "based on" a risk assessment. In this respect, the European Communities observed
that the words "appropriate to the circumstances" made it clear that Members had a certain degree of
flexibility in meeting the requirements of Article 5.1. The term "risk assessment" in the SPS
Agreement had to be understood in the broad sense of "risk analysis" as defined by the Codex and
other international instruments. According to the definition of risk assessment given in paragraph 4 of
Annex A to the SPS Agreement and paragraphs 2 a nd 3 of Article 5, Members should take into
account not only scientific but also economic and regul atory considerations. The list of factors to be
taken into account in making an "assessment of the risks" was not exhaustive.
5.35 "Based on" does not mean the same thing as "conform to."
123 The same risk assessment
might "sufficiently warrant" more than one possi ble SPS measure, depending, inter alia, on the
specific circumstances of the legislator. Respons ible and representative governments might act on
mainstream scientific opinion as well as on divergent scientific views.
5. Article 5.6
5.36 The Original Panel exercised judicial econom y in respect of the United States claim under
Article 5.6.124 The words "and confirmed by the Appellate Body in this dispute" in paragraph 38 of
the United State first written submission were ther efore factually inaccurate. The United States had
not appealed the Original Panel's exercise of judicial economy in relation to Article 5.6.
5.37 A finding of inconsistency with Article 5.6 pr e-supposed that a complaining Member could
present prima facie evidence that at least one other measure existed that was less restrictive than the
measure at issue, and which achieved the Member's a ppropriate level of protection. Footnote 3 of the
SPS Agreement confirmed that a panel must find that "there was another measure" in order to find an
inconsistency with Article 5.6. Footnote 415 of the Original Pa nel Report did not change this
analysis.

123 Appellate Body Report on EC - Hormones, para. 166.
124 Panel Report on Japan – Apples , paras. 8.299-8.303; Appellate Body Report on Japan – Apples ,
para. 4.

6. Scientific experts
5.38 The European Communities consider ed that this Panel should have recourse to scientific and
technical advice from experts. This Panel should co nsider whether new facts might take a matter in
whole or in part outside the scope of Article 21. 5 DSU proceedings when deciding whether or not to
consult experts.
E.
NEW ZEALAND
1. Japan's original and revised measure
5.39 New Zealand noted that a number of factual findings made by the Original Panel underpinned
the DSB's ruling that Japan's original fire blight measure was WTO inconsistent. The Original Panel
concluded that there was a negligible risk of possi ble transmission of fire blight through apple fruit
and that there was not sufficient scientific evidence that apple fruit were likely to serve as a pathway
for the entry, establishment or spread of fire blight in Japan was central to the DSB's ruling.125
5.40 The revised measure presented to the DSB on 30 June 2004 was contained in the Detailed
Rules for Plant Quarantine Enforcement Regulation Concerning Fresh Fruit of Apple Produced in the
United States of America of 30 June 2004, whic h amended the 1997 document of the same name
("Detailed Rules of 30 June 2004"). 126 The adjustments to the rules re lated to three requirements.
First, the requirement for a 500 metre buffer zone had been reduced to a 10 metre buffer zone.
Second, the inspection requirement had been amende d from a requirement of three inspections to at
least one inspection per year at the early fruitlet stage. 127 And finally, the requirement that the
harvesting crates be disinfected had been dropped.
5.41 New Zealand argued that Japan's revised measure was substantially equivalent to the original
measures in that the changes were of a minor nature and all other trade restrictive and scientifically
unfounded aspects of the original measure had been left intact. This included the requirement for
certification of export orchards as fire blight-free, that designated export orchards be in Washington
and Oregon, for disinfection of apples and harvesti ng containers and post ha rvest separation of fruit
destined for Japan from other fruit, and the admi nistrative requirements regarding United States
official certification and Japanese confirmation of this certification.
5.42 Nothing about the revised measure addressed the point that apple fruit as commercially traded
did not pose a risk of transmission of fire blight. Therefore, the revised measure continued to breach
WTO obligations and could not be justified on the basis of the record of evidence before the Panel.
2. Japan's justification for the new measure
5.43 Japan had provided new scientific studies and a new risk assessment, which, it submitted, was
the basis of the revised measure. Japan did not a ttempt to justify its revised measure based on the
Panel findings and the scientific evidence before th e Original Panel proceedings. Instead it brought
forth "new evidence" in an endeavour to re-open the key factual findings of the Panel. However, New
Zealand contended that Japan had not demonstrated that the evidence was genuinely new or pertinent
to the key findings of the Panel. New Zealand agreed with the United States that the new studies
failed to contradict or to amend the reams of p eer-reviewed and time-tested science on apple fruit and

125 Panel Report on Japan – Apples, paras. 8.169-8.176.
126 New Zealand agrees with the United States' position set out in the Preliminary Request of the United
States of 27 September 2004 that the “Operational Criteria” cannot be considered part of the revised measure.
127 As noted by the United States, the Detailed Rules can be construed as also requiring a second
inspection by Japanese officials. See First Written Submission of the United States, page 9, footnote 16.

fire blight. The conclusions, derived from highly ar tificial experiments, did not alter the record of
scientific evidence or to challenge the key findi ngs of the Panel relating to the likelihood of
transmission of fire blight through trade in apples.
5.44 At most, the new studies could be said to demonstrate that
5.45 in a highly artificial laboratory environment it was possible to infect mature apples
with fire blight bacteria by doing things to them that would never occur in the natural environment
and would immediately render them commercially useless;128
5.46 it was possible, by confining surfaced ster ilised flies against the cut surface of fruit
artificially inoculated with high c oncentrations of fire blight bacteria for a period of six hours, to
extract a low concentration of bacteria from the body of the flies;129 and
5.47 it was possible to transmit fire blight bacteria to fruit and plant parts by dunking
surface sterilised flies in a high concentration of fire blight bacteria, and then leaving them in close
contact with a range of damaged immature apple a nd pear fruit and plant parts for an unspecified
period of time.130
5.48 New Zealand submitted that the record did not indicate that the new evidence informed the
development of the revised measure or that the re vised measure was based on it. The measure in
question was developed following the recommendati ons and rulings of the DSB in December 2003
and was notified to the DSB by the required timeframe of 30 June 2004. There was no mention of
new scientific evidence at the time of notification to the DSB. Although the measure was
implemented in June 2004, none of these studies were shared with the United States until the filing of
Japan's submission of 13 September 2004.
131 Even Japan acknowledged that the studies had not been
completed until September, which was after the meas ure had been implemented and before they had
to be formally published. All these factors rais ed serious concerns over the link between the new
evidence and the revised measure, and indicated th at the revised measure was not capable of being
based on scientific evidence as required by Article 2.2.
3. Article 2.2
5.49 Japan's new studies did not change the scientific evidence regarding fire blight and apples.
As the United States had pointed out, in putting forward these new studies Japan appeared to be trying
to establish two concepts: that mature, symptomless a pples could be latently infected with fire blight
bacteria and that a potential pathway existed for the introduction of fire blight into Japan from this
latently infected fruit. 132 New Zealand agreed with the United States that the new studies failed to
contradict or amend the established science on apple fru it and fire blight and thus the central findings
of the Panel outlined above had not been displaced by the new studies put forward by Japan.
(a) Azegami et al. (2005), "Invasion and colonization of mature apple fruit by Erwinia
amylovora tagged with bioluminescence genes" (Exhibit JPN-6).
5.50 Azegami et al. (2005) attempted to cast doubt on previ ous research by demonstrating that the
flesh of mature apples was capable of becoming infected with populations of E. amylovora after the
apple has become mature. They described a series of artificial laboratory interventions that resulted in

128 Exhibit JPN-6.
129 Exhibit JPN-9.
130 Exhibit JPN-9.
131 Second Written Submission of the United States, page 16, footnote 21.
132 Second Written Submission of the United States, para. 14 and Second Written Submission of Japan,
para. 52.

the detection of viable cultures of E. amylovora in the flesh of mature apples. The methods used to
achieve the infection were highly artificial and not reflective of natural conditions and the context for
the experiment was inconsistent with natural conditions in orchards.
5.51 Azegami et al. (2005) did not discuss normal movement of E. amylovora within plant tissue.
Rather they describe four methods of artificial inoculation of mature apple fruit with high
concentrations of bacteria (10
7, 108 CFUs/ml) that do not occur naturally in late summer when apples
are maturing:
• Through a cut pedicel (stalk);
• Direct inoculation to the depth of half a centimetre by a bundle of ten needles;
• Into surgical cuts in twigs near mature fruit; or
• Directly onto the cut surface of sliced mature fruit.

5.52 Experiments a), b), and d) which resulted in inoculation of mature apple fruit under laboratory
conditions did not take into acc ount the effect of the environment and the host on the ability of
E. amylovora to invade such tissue. All scientific descriptions of the progress of fire blight disease
under natural conditions described it as emanating at spring time from infected blossoms or from pre-
existing, overwintering, cankers. Leaves, flowers and actively growing shoot tips were the tissues
most vulnerable to natural infection. Secondary spread of fire blight was often concurrent with a flush
of new highly susceptible shoot growth. When the fr uit approached maturity in late summer, natural
populations of E. amylovora in apple tree tissue were in decline and had never been recorded as near
levels used by Azegami et al. (2005), and fruit tissues became less susceptible to E. amylovora as they
aged.
5.53 The scenario which the study sought to demonstr ate could only have occurred naturally when
fruit had been damaged by hail in close proximity to high levels of inoculum which were not available
in late summer. Damaged fruit were not export qu ality and were culled out of the harvest in the
orchard and packhouse.
5.54 Scientists were unable to infect a mature apple with E. amylovora using method c. Azegami
et al. (2005) were unable to demonstrate the movement of E. amylovora across the abscission layer
into the mature fruit. They tried to explain this im portant result by stating that the twigs were drying
out after they were taken from the tree and water flow across the layer became limited. In fact the
research actually confirmed the findings of Gowda and Goodman (1970)
133 that demonstrated that the
abscission layer acted as a natural barrier to desiccation and invasion of apple fruit by
microorganisms. The failure of Azegami et al. (2005) to infect mature apples through the abscission
layer in the third experiment was consistent w ith published scientific evidence that the pathogen
primarily moved in the phloem, downwards away from the fruit.
134 For example, infected scion wood
would readily infect associated rootstocks, 135 whereas infected rootstocks were slow to infect
associated scion wood and in such cases trees might not show symptoms of fire blight until the
following spring.136
5.55 For the circumstance hypothesised by Azegami et al. (2005) to occur outside of the
laboratory, the high levels of inoc ulum (that had never been demonstrated to occur in plant tissue in

133 Gonzalez-Carranza et al., 1998. Recent developments in abscission: shedding light on the shedding
process. Trends in Plant Science, Vol. 3, No. 1, pp. 10-14 (Exhibit NZ-1).
134 Gowda S.S. & Goodman R.N., 1970. Movement and persistence of Erwinia Amylovora in shoot,
stem and root of apple. Plant Disease Reporter 54, 7. 576-580 (Exhibit NZ-2).
135 Wilcox 2004: http://www.nysaes.cornell.edu/pp/extension/tfabp/firepm.shtml (Exhibit NZ-3).
136 Steiner 2004: http://www.caf.wvu.edu/kearneysv ille/disease_descriptions/omblight.html (Exhibit
NZ-4).

late summer) would have had to cross the abscission layer (which had never been demonstrated to
occur) in the two to three day period between the time the fruit became mature and was harvested.
The paper did not present evidence to challenge the fi ndings of the experts in the Original Panel that
"there was not sufficient scientific evidence to conclude that mature, symptomless apples would
harbour endophytic populations of bacteria".137
(b) Tsukamoto et al. (2005a) "Infection frequency of mature apple fruit with Erwinia amylovora
deposited on pedicel and its survival in the fruit stored at low temperature" (Exhibit JPN-9).
5.56 Tsukamoto et al. (2005a) sought to extend the hypothetical circumstances described by
Azegami et al. (2005). They suggested that, in the highl y unlikely event that a mature apple fruit
harbouring endophytic populations of E. amylovora was exported, the bacteria would survive the cool
chain process. Tsukamoto et al. (2005a) demonstrated that populations of E. amylovora could be
extracted from the artificially inoculated mature appl e fruit held at the atypical storage temperature of
5 degrees Celsius for up to six months. These results could not be extrapolated to commercial
circumstances and should be disregarded.
5.57 Once again scientists imposed a series of unnatura l circumstances. First, mature apples were
inoculated with high concentrations of bacter ia through a cut pedicel, thus circumventing the
abscission layer. Then, before being stored, the i noculated fruits were held at 25 degrees Celsius for
up to nine days giving the bacteria optimal conditions to multiply before being put into cool storage.
In contrast, in commercial circumstances, to ensure optimal fruit quality, fruit were cooled to remove
the field heat as quickly as possible after harvest. Harvested fruit were processed quickly through the
packhouse and rapidly placed in cool stores, or, if fruit could not be packed immediately, it was put
into the cool stores in field bins directly from the field until it could be packed.
5.58 Azegami et al. (2005) was the only research that purported to show that endophytic
populations of E. amylovora could be found in mature apple fruit. All published research
demonstrated that the only place where populations of E. amylovora had consistently been detected on
apples being prepared for commercial export was on the calyx. Despite strenuous efforts by many
scientists, endophytic populations had never been de tected naturally infecting mature apples, and
populations of E. amylovora had never been shown to survive for long on the surface of apples.
5.59 Taylor and Hale (2003)
138 demonstrated conclusively that populations of E. amylovora on the
calyx were in continuous decline and were co mmonly well below the numbers needed to initiate
infection in a susceptible host. Their research showed that even artificially inflated population levels
of 106 CFUs declined over a 20 day period of cool storage (2 degrees Celsius) to <10 2 CFUs, a level
insufficient for spread to a susceptible host and to initiate an infection.
5.60 Tsukamoto et al. (2005a) stated: "Therefore it is considered that if the migrating E. amylovora
in the tissues of apple tree can invade the fruit th rough pedicel, the fruit may become mature without
showing any symptoms on the tree. It is highly pos sible that the symptomless mature fruit harvested
from the blighted shoot is infected latently with E. amylovora." This statement contained two errors.
First, it implied that latently infected mature fruit were a common occurrence whereas they had never
been demonstrated other than in the laboratory of Tsukamoto et al. Secondly, all previous evidence
showed that if E. amylovora enters apple fruit before it becomes mature then the fruit does not mature.
5.61 Endophytic populations of E. amylovora capable of transmitting fire blight had never been
demonstrated in mature fruit and Azegami et al. (2005) failed to demonstrate that E. amylovora

137 Panel Report on Japan – Apples, para. 8.128.
138 Taylor, R.K. and Hale, C.N. (2003) Cold storage affects survival and growth of Erwinia amylovora
populations on the calyx of apple. Letters of Applied Microbiology. 37 (4): 340-343 pp (Exhibit NZ-5).

moved from an infected twig through the abscission la yer into the flesh of mature fruit. Whether or
not high concentrations of E. amylovora could survive in the flesh of artificially inoculated mature
fruit held at laboratory temperatures to promote in fection and then held at 5 degrees Celsius was only
theoretically interesting, and irrelevant to fru it produced under normal circumstances for commercial
trade.
(c) Tsukamoto et al. (2005b). "Transmission of Erwinia amylovora from blighted mature apple
fruit to host plants via flies" (Exhibit JPN-9).
5.62 Tsukamoto et al. (2005b) tried to further extend th e negligible probabilities proposed by
Azegami et al. (2005) and Tsukamoto et al. (2005a) by suggesting that endophytic populations of
E. amylovora in mature apples (that had never been demonstr ated to occur), had been able to move in
commercial trade then transferred to a susceptible host via the feet and mouth parts of common flies.
This contrasted with the results of Taylor et. al. (2003)
139 who demonstrated under natural orchard
conditions that transmission of E. amylovora from discarded infested fruit to a susceptible host had
not occurred.
5.63 Once again scientists used a series of unnatura l procedures to demonstrate that a highly
improbable event was possible under exceptional circumstances. The procedures involved:
• Inoculating mature fruit with high concentrations (10 8 CFUs/ml) of E. amylovora using a
hypodermic syringe;
• Holding the inoculated mature fruit at a constant 26 degrees Celsius for 38 days; and
• Confining twenty three surface sterilized fli es against the cut surface of the inoculated
fruit for six hours

5.64 Despite imposing such unnatural conditions Tsukamoto et al. (2005b) reported extracting
only an average of 2.6x10
2 CFUs from the entire body of the flies. This concentration was
insufficient to spread and initiate an infection in a susceptible host.140.
5.65 Undaunted by this result Tsukamoto et al. (2005b) then reported that surface sterilized flies
were soaked in a bacterial broth of E. amylovora at the unnaturally high concentration of 109 CFUs/ml
for ten minutes. Then these flies were confined with a range of damaged immature apple and pear
fruit and plant parts for an unspecified period. Unsurprisingly Tsukamoto et al. (2005b) reported that
these flies had been able to transmit E. amylovora bacteria to the damaged plant parts and immature
apple and pear fruit.
5.66 This approach suffered from a number of problems including:
• Concentrations of 109 CFUs/ml of E. amylovor a had never been reported in the field in
late summer. Populations of E. amylovora in ooze are short lived.
• When flies came into contact with ooze or ro tting fruit, they only contacted the material
with their feet and mouth parts.
• The exterior of flies were not sterile; in fact flies were well known to be infested with a
vast range of micoorganisms many of wh ich would have been antagonistic to
E. amylovora.

139 Taylor, R.K., Hale, C.N., Gunson, F.A. and Marshall, J.W. (2003) Survival of the fire bight
pathogen, Erwinia amylovora, in calyxes of apple fruit discarded in an orchard. Crop Protection 22 603-608
(Exhibit NZ-7).
140 Taylor, R.K., Hale, C.N., Henshall, A.J.L. and Marshall, J.W. (2003b) Effect of inoculum dose on
infection of apple ( Malus domestica ) flowers by Erwinia amylovora. New Zealand Journal of Crop and
Horticultural Science. 31 : 325-333 pp (Exhibit NZ-10).

• Typically species of flies that visit rotting fruit were not naturally attracted to flowers and
twigs, they might visit these occasionally to rest , but they did not remain for more than a
few seconds.
• Fly species that visit rotting fruit did so for th e nutrients released by the rotting process
whereas species of flies that visit flowers did so for the pollen and nectar. The
mouthparts of the different fly species were not the same. Mouthparts required to access
one food source were incapable of accessing the other.

5.67 The conditions described by Tsukamoto et al. (2005b) did not reflect the conditions
encountered in orchard environments. Levels of E. amylovora obtained from the flies confined with
cut inoculated fruit were too low to infect ma ture apples. Also the results from Tsukamoto et al.
(2005b) did not demonstrate transfer of E. amylovora from rotting fruit to a susceptible host since the
flies used had been first dipped in a concentrated broth of E. amylovora. Instead, by having to employ
these contrived mechanisms, the studies proved the im probability of the scenario they had set out to
prove.
5.68 In relation to whether apple fruit were a pathwa y for transmission of fire blight, Tsukamoto et
al. (2005b) did not in any way challenge the Original Panel findings that: with respect to mature,
symptomless apple fruits, the risk that the transmis sion pathway be completed was "negligible"; and
it had not been established with sufficient scientific evidence that the last stage of the pathway (i.e.
transmission of fire blight to a host plant) would likely be completed (for either mature or immature
fruit).
(d) Kimura et al. (2005). "The probability of long-distance dissemination of bacterial diseases via
fruit" (Exhibit JPN-10)
5.69 Kimura et al. (2005) attempted to use the unsubstantia ted and questionable findings of the
three papers presented by Azegami et al. (2005), Tsukamoto et al. (2005a) and Tsukamoto et al.
(2005b) and to validate them by quantifying them with probabilities. The paper first focussed on
substantiated research regarding the epidemiology of bacterial diseases, discussing well-documented
pathways for their entry and establishment in new areas. Kimura et al.(2005) then proceeded to try to
use the dubious results described by Azegami et al. (2005), Tsukamoto et al. (2005a) and Tsukamoto
et al. (2005b) to suggest that the probabilities of transm ission of fire blight by apple fruit were higher
than previously considered.
5.70 Given that, Azegami et al. (2005), Tsukamoto et al. (2005a) and Tsukamoto et al. (2005b)
failed to demonstrate their hypothesises, it was difficult to see how Kimura
et al.(2005) could assign
probabilities to these events. Nevertheless, the paper ascribed probabilities to these events while
interspersing these probabilities with bona fide probabilities for the movement of E. amylovora on
planting material, giving the estimated probabilities from Azegami et al. (2005), Tsukamoto et al.
(2005a) and Tsukamoto et al. (2005b) an aura of validity by association.
5.71 However, the contrived nature of the endeavour continued to be evident. For example,
Kimura et al. (2005) stated under "p5 = Probability that inf ected fruit are discarded", that "Japanese
people pare apples, remove cores and consume remaining flesh".141 Yet the hypotheses of Azegami et
al. (2005), Tsukamoto et al. (2005a) and Tsukamoto et al. (2005b) were that populations of
E. amylovora in artificially infected mature fruit were har boured only in the flesh and not in the core.
Thus, if the flesh of mature apples could harbour populations of E. amylovora, the remaining bacteria
would be destroyed when the flesh was consumed.

141 Exhibit JPN-10, Page 18, line 3.

5.72 Similarly, Kimura et al. (2005) used the laboratory studies in Tsukamoto et al . (2005b) to
estimate "p6 = Probability that E. amylovora adhere to one or more vector insects". Kimura et al.
(2005) completely ignored the findings of Taylor et al. (2003).
142 This latter paper used very sensitive
PCR technology (sensitive enough to detect 10CFUs of E. amylovora per insect sampled) to try to
detect populations of E. amylovora on the bodies of 177 insects of various types collected in an
orchard containing discarded infested apples. However, despite the sensitivity of the method E.
amylovora were not detected on any of the insects collected.
5.73 Further, Kimura et al. (2005) defined "p8 = Probability that host plants will be infected with
E. amylovora", using the results of Tsukamoto et al. (2005b) as if they applied to natural field
populations. Yet, as discussed, Tsukamoto et al. (2005b) had not demonstrated the transmission of
E. amylovora by flies from rotting fruit to susceptible hosts initiated infection. These results could
not generate probabilities that bear any relationshi p to natural conditions. The four new studies had
not establisheded with sufficient scien tific evidence that fire blight would be transmitted to a host
plant(for either mature or immature fruit).143
4. Japan's revised measure and scientific evidence
5.74 Given the failure to displace the record of sci entific evidence before the Original Panel,
Japan's revised measure continued to be maintain ed without sufficient scientific evidence. New
Zealand agreed with the United States that rega rdless of whether each requirement was considered
singly or the measure was examined as a cumulati ve whole, the revised measure was maintained
without scientific evidence in breach of Article 2.2. The scientific evidence demonstrated that mature,
symptomless apples, the commodity that was traded, we re not infected with fire blight and that there
was no vector for fire blight to be transmitted from infected apples to host plants.
(a) Prohibition of fruit from orchards in which fire blight is detected
5.75 New Zealand submitted that there was no sci entific evidence to support this element
regardless of whether this element was interpreted as a requirement of fire blight-free status or a
requirement that the orchard not be "severely b lighted". There was no rational and objective link
between the requirement and the scientific evidence. The established evidence did not support a link
between commercial trade in apples and the transmissi on of fire blight. The Original Panel had made
the conclusion that there was not sufficient scientific evidence that apple fruit were likely to serve as a
pathway for the entry, establishmen t or spread of fire blight. 144 This was because mature,
symptomless apples (i.e. the commodity that was tr aded) were not infected with fire-blight and
because even with regard to appl es other than mature, symptomless apples, there was not sufficient
scientific evidence that the last stage of the pathway would be completed.
(b) Prohibition of fruit from orchards in which fire b light is detected in a 10-metre buffer zone
surrounding the orchard
5.76 New Zealand submitted that there was even less scientific justification for the "buffer zone"
requirement than for the requirement that the export orchard to be fire blight-free. Further, as noted
by the United States in its second submission, there w as an inconsistency in requiring the buffer zone
to be blight-free while the export orchard must a void being "severely blighted". Japan seemed to
justify the buffer zone as a necessary requirement to "clearly delineate and define the export orchard",
and suggested that in many cases such buffer areas woul d already or naturally be present in orchards.

142 Taylor, R.K., Hale, C.N., Gunson, F.A. and Marshall, J.W. (2003) Survival of the fire bight
pathogen, Erwinia amylovora, in calyxes of apple fruit discarded in an orchard. Crop Protection 22 603-608.
143 Panel Report on Japan – Apples, para. 8.168.
144 Panel Report on Japan – Apples, para. 8.176.

However New Zealand emphasized that any requirement, onerous or not, must be based on the
scientific evidence.
(c) Requirement that export orchards be inspected at the early fruitlet stage
5.77 The established scientific evidence did not suppor t the idea that calyx infested apple fruit
would harbour populations of bacteria capable of transmitting fire blight. Thus the rational and
objective relationship between the scientific evidence and the requirement was missing. In addition,
if it was assumed that the point of the inspections was to identify "severely blighted" orchards, the
inspection requirement appeared flawed given the l ack of clarity around what a "severely blighted
orchard" might be.
(d) Requirement that surface of apple fruit be disinfested with sodium hypochlorite (chlorine)
5.78 The requirement that the apples be disinfected with a chlorine solution bore no rational or
objective relationship to the scientific evidence that mature, symptomless apples would not harbour
fire blight bacteria capable of transmitting fire b light. The suggestion that such chlorine treatments
might be an existing part of the United States e xport process did not obviate the need for Japan to
demonstrate a sound scientific basis for its required inclusion as part of the measure.
(e) Prohibition of imported apple fruit from US States other than Washington or Oregon
5.79 New Zealand submitted that this element of th e measure was self-evidently not based on
scientific evidence. In New Zealand's view, Japa n's claim that this was merely a procedural
requirement did not assist the Panel in considering whether or not the requirement was based on
sufficient scientific evidence, as required by Article 2.2.
(f) Prohibition of imported apples unless other production, harvesting, and importation
requirements are met
5.80 New Zealand submitted that the additional requirements of sterilising of the packing facility,
post-harvest separation of fruit destined for Jap an, and export and import inspections were not
maintained on the basis of suffici ent scientific evidence. A rational and objective link between the
SPS requirements and the scientific evidence was re quired. The established evidence was that apple
fruit did not transmit fire blight because mature, symptomless apples were not infected with fire blight
and because there was no vector for transmission of the disease to host plants. As the United States
claimed, mere assertions that the "requirements are e asily met" or are "procedural in nature" were not
enough to demonstrate this link.
145
5. Article 5.1
(a) 2004 Revised Pest Risk Analysis
5.81 New Zealand submitted that the Japan revised me asure continued to be in violation of the
requirement that SPS measures be based on a valid risk assessment for a number of reasons. It defied
logic and credibility to suggest that the revised measure notified to the DSB on 30 June 2004 had been
in fact based on a risk assessment not finalised until September 2004 and had been based on scientific
studies completed in September 2004, and prospectively dated for publication in 2005.
5.82 The revised PRA was little more than an amplifi cation of the Pest Risk Analysis presented to
the Original Panel in 2003 usin g the results presented in Azegami et al. (2005), Tsukamoto et al.

145 Second Written Submission of the United States, para. 48.

(2005a), Tsukamoto et al. (2005b) and Kimura et al. (2005) as the sole source of new information.
As set out above, New Zealand considered this researc h to be flawed. It failed to establish the results
which Japan set out to establish. Therefore, the PR A did not adequately evaluate the likelihood of
entry, establishment or spread of these diseases, as well as the associated potential biological and
economic consequences, as required by the SPS Agreement.
5.83 Second, New Zealand agreed with the United St ates that the revised Pest Risk Analysis
sufferred from the same deficiencies as the original Pest Risk Analysis. It was not sufficiently
specific to the matter at issue because it failed to address the commodity which was actually being
exported by the United States – mature, symptomless fruit - and instead concentrated on a commodity
that did not exist in nature – mature, symptomless, yet latently infected fruit.
5.84 The only justifiable conclusion of an objective risk assessment for fire blight was that the risk
of introduction of fire blight (i.e. entry and establishment) on apple fruit remained negligible. The
findings of the Panel remained unchanged and no phytosanitary measures were justified.

VI. PANEL'S CONSULTATION WITH SCIENTIFIC EXPERTS
A. P
ANEL'S PROCEDURES
6.1 The Panel recalled that paragraph 2 of Article 11 of the SPS Agreement provided that:
"In a dispute under this Agreement involving scientific or technical issues, a
panel should seek advice from experts cho sen by the panel in consultation with
the parties to the dispute. To this end, the panel may, when it deems it
appropriate, establish an advisory technical experts group, or consult the relevant
international organizations, at the request of either party to the dispute or on its
own initiative."

6.2 Noting that this dispute involved scientific or technical issues, the Panel consulted with the
parties regarding the need for expert advice. Neith er party objected to the Panel's intention to seek
advice from the experts who provided advice in the first Japan – Apples case. The Original Panel had
decided to appoint the following individuals as expe rts, pursuant to Article 13 of the DSU and Article
11.2 of the SPS Agreement:
 Dr Klaus Geider, Professor of Molecular Genetics and Phytopathology, Federal Biological
Research Organization, University of Heidelberg, Ladenburg, Germany;

 Dr Chris Hale, Consultant specializing in plant protection, Waitakere City, New Zealand;

 Dr Chris Hayward, Consultant on Bacter ial Plant Diseases, Indooroopilly, Queensland,
Australia; and,

 Dr Ian Smith, Director-General, European a nd Mediterranean Plant Protection Organization,
Paris, France.

6.3 After consultation with the parties, the Panel communicated the following working
procedures for consultations with scientific and te chnical experts on 18 October 2002 to the scientific
experts:
The parties are asked not to engage in any direct contact with the individuals
selected.

The experts shall be requested to act in their individual capacities and not as
representatives of any entity. They shall be subject to the DSB's Rules of
Conduct for the Understanding on Rules and Procedures Governing the
Settlement of Disputes (WT/DSB/RC1).

The Panel will prepare specific questions for the experts. The parties will have an
opportunity to comment on the proposed questions, or suggest additional ones,
before the questions are sent to the experts.

The experts will be provided with all releva nt parts of the parties' submissions on
a confidential basis.

The experts will be requested to provide responses in writing; copies of these
responses will be provided to the parties. The parties will have an opportunity to
comment on the responses from the experts.

A meeting with the experts will be held during which the experts will be invited
to present their replies to questions, co mplement these as necessary, and respond
to additional questions from the Panel and th e parties. The parties will be invited
to the meeting with the experts, and provided the opportunity to comment
immediately on the statements of the experts. Prior to said meeting, the Panel
will ensure that: (i) the parties' comm ents on the experts' written responses are
provided to the experts; and (ii) each expert is provided with the written
responses of the other experts to the Panel's questions. Parties are free to include
scientific experts in their delegations.

6.4 The United States informed the Panel that it cons idered its submissions to the Panel to be
public documents. The experts were invited to m eet with the Panel and the parties to discuss their
written responses to the questions and to provide further information on 12 January 2005.
6.5 As with the Original Panel, the Secretariat pr epared a summary of experts' written replies to
the Panel's questions, as well as a transcript of the meeting with the experts, for inclusion in the
Panel's report. The experts were given an opportunity to comment on the drafts of these texts before
they were finalized. A summary of the informa tion provided by the experts in writing is presented
below. A transcript of the meeting with the experts is included in Annex 3.
B.
SUMMARY OF THE WRITTEN RESPONSES BY THE EXPERTS TO THE PANEL'S QUESTIONS
General questions on new scientific studies presented by Japan

6.6 As general introductory comments, Dr Geider declared that some points and questions raised
by the panel touch experimental limits and face pr oblems to transpose results from the laboratory to
orchards and that after the hearing January 2003, it was difficult to dig still deeper into special points
and to expect now the clear answer lacking before . He pointed out in 2002/2003 that the presence of
a pathogen could be experimentally detected, but it was impossible to prove its absence. Steps of a
possible pathogen spread could be shown in the lab, but they might never occur naturally.
6.7 Dr Geider commented that the vast collection of data about strain patterns in Europe allowed
the conclusion of very rare dissemination of fire blight and the assumption that the disease was only
introduced once or at very few occasions (see Conclu sions). A considerable risk should be seen in
private activities of handling plants and plant tissue, which could not be completely eliminated for the
global activities in trade and tourism. Within Europe and the Mediterranean region these activities
did not result in a detectable translocation of pattern types.

Question 1: Do you consider that any or all of the new studies provided by Japan meet the
criteria usually applicable in the field (in term s of peer-review, publication, in depth-research
etc.) to be relevant scientific evidence? (See Japan's reply to Question 16 of the Panel.)

6.8 Dr Geider stated that since the last hearing 2002/03, he was not aware of peer-reviewed new
studies about spread of fire blight affecting the trad e issue and that his paper: S. Jock and K. Geider:
"Molecular distinction of American Erwinia amylovora strains and of two Asian pear pathogens by
analysis of PFGE patterns and hrpN genes. Environmental Microbiology 6 (2004) 480-490" could be
considered to contribute to that topic. The main m essage was the endemic persistence of fire blight in
North America for a long time, expressed in diverg ent PFGE patterns of American/Canadian strains
and conclusions about ra re primary introduction events of fi re blight into Europe and the
Mediterranean region. His recent paper by S. Jo ck, C. Langlotz, and K. Geider: <Survival and
possible spread of Erwinia amylovora and related plant-pathogenic bacteria exposed to environmental
stress conditions. Journal of Phytopa thology (2005), in press> (Abstract attached at the end of these
comments) might touch in part similar approaches as the preprints of Tsukamoto et al. and Azegami
et al.
6.9 Dr Geider added that the content of the manuscript also referred to survival of E. amylovora
in HR lesions of non-host plants, a topic, which might not apply for trade of apples. The two
unpublished Japanese studies relied on bioluminescence from the lux-operon, which depended on an
active cell metabolism to recycle the substrates for light production. The signals did therefore not
reflect cell density. According to his lab data, surface spread of lux-labeled E. amylovora cells, but
not of E. coli cells, could also be shown on freshly cut potato slices. E. amylovora might be able to
colonize several types of plant tissue. The pathogen could also grow in some non-host plants such as
apricots, but was unable to persist in the tissue for production of symptoms at a later stage.
6.10 Dr Hale noted that it was surprising that Japan's submissions and new Pest Risk Analysis
were based on new evidence from four research studies (Azegami et al . 2005; Tsukamoto et al .
2005a,b; and Kimura et al. 2005) that: a).which were still in the process of peer review; b). were, as
yet, unpublished; and c). contained conclusions that were not substantiated by the data contained in
the unpublished manuscripts. Information from a fift h study (Exhibit JPN-16) had been presented on
11 November 2004 together with "J apan's Replies to the Panel's Questions". As such, these
manuscripts did not meet the criteria usually applicab le in the field of science in providing relevant
scientific evidence.
6.11 Dr Hale added that in terms of peer review: the submissions and new Pest Risk Analysis
appeared to assume that the outco mes of the peer review would be favourable and that this was an
assumption that could not be made if the papers were being peer reviewed by international reviewers
who would undoubtedly question the experimental methodology and conclusions drawn from the
results presented. This was particularly so as it related to the highly artificial conditions imposed
experimentally and the outcomes suggested that differed markedly from previously published
information e.g. Thomson (2000), Taylor et al. (2003).
6.12 Dr Hale stated that in terms of publicati on: the submitted manuscripts would undoubtedly
require major revision and rigorous editing before they could be considered as acceptable by an
international journal. From the timetable submitte d relating to the manuscripts it appeared that only
the Azegami et al. (2005) manuscript had been accepted for publication. However, it could not be
assumed that publication of the information in the other manuscripts was inevitable.

6.13 Dr Hayward mentioned that there were five studies to consider:
(a) Exhibit JPN-6 Azegami et al. (2004) "Invasion and colonization of mature apple fruit
by Erwinia amylovora tagged with bioluminescence genes. Journal of General Plant
Pathology 70 (6) December 2004. (Azegami I)
(b) Exhibit JPN-8 Tsukamoto et al. (2005) "Infection frequency of mature apple fruit
with Erwinia amylovora deposited on pedicel and its survival in the fruit stored at
low temperature. Journal of General Plant Pathology (submitted). Undergoing peer
review. (Tsukamoto I).
(c) Exhibit JPN-9 Tsukamoto et al. (2005) "Transmission of Erwinia amylovora from
blighted mature apple fruit to host plants via flies." Research Bulletin Plant Protection
Service Japan." Accepted for publication. (Tsukamoto II).
(d) Exhibit JPN-10 Kimura et al. (2005) "The probability of long-distance dissemination
of bacterial diseases via fruit." Journal of General Plant Pathology (submitted).
Undergoing peer review.
(e) Exhibit JPN-16 Azegami et al. " Entry of Erwinia amylovora into apple fruit from
fruit-bearing twig through abscission layer at the time of fruit maturation" (Azegami
II).
6.14 Dr Hayward added that the fifth investigation (e ) had not been subjected to peer review; the
methods, results and conclusions had not been criti cally evaluated by an independent third party.
Accordingly these had to be regarded as prelim inary results in the category of a "personal
communication".
6.15 Dr Hayward stated that the first study a) had been peer-reviewed and was to appear in
December, 2004; the second and fourth studies b) and d) were still undergoing peer-review. The third
study had been accepted for publication in the Resear ch Bulletin Plant Protection Service Japan. He
did not know whether papers accepted for publica tion in this periodical were independently peer-
reviewed in addition to meeting acceptable editorial standards.
6.16 Dr Hayward commented that one of the five studies (Azegami I) met the criteria expected for
relevant scientific evidence in that there had b een independent peer review, presumably by two
referees; the other studies were either still being peer-reviewed, might in one case have been accepted
without any peer review and in the case of Azegami II consisted of a preliminary report not subjected
to any critical evaluation.
6.17 Dr Hayward noted in regard to Editorial/Refer eeing policy that the Journal of General Plant
Pathology published by Springer-Verlag Tokyo, ha d an Editor-in-Chief supported by 19 Associate
Editors of whom three are from the United States, two from Korea and one from Thailand, with the
remainder from the host country. For most papers in most scientific journals there would be two,
sometimes three, referees chosen at the discretion of the Editor, or by a desi gnated Associate Editor,
depending on the policy of the journal. In almo st all cases the Editor/Associate Editor would take
care to protect the anonymity of the referees and th e referees reports were regarded as confidential
information. There would be variation in the ri gour with which papers were reviewed between
scientific journals. A journal with a large editori al board and extensive international representation
was likely to be one in which papers were review ed by referees' selected from a wide catchment area,
and with the necessary expertise in the subject area of the paper under review.

6.18 Dr Smith explained that the studies had been commissioned in relation to the Dispute (which
was surely quite legitimate), and their progress through the process of submission, refereeing and
publication was necessarily constrained by the timetable of the Dispute. They would have gained in
authority if they had all been accepted for publication, but the fact that they were at different stages in
the process did not disqualify them as scientific ev idence. The main criticism that could be made of
the first three papers was that, in the conduct of a normal research programme, the questions which
they left open would have been further investigat ed, and more results obtai ned, before the overall
results were submitted for publication. The papers individually represented only a small volume of
research, and did not go into depth (but one understo od why this was so). The fourth paper was in a
different situation, because it was addressing a diffe rent question (providing specific input to the
PRA). It was debatable whether calculations of ri sks associated with different pathways in a PRA
needed to be published at all; they could be considered as an integral part of a PRA.
Question 2: Please comment on New Zealand's categorization of the new studies relied upon
by Japan in these proceedings (para. 20 of New Zealand third party Submission).

6.19 Dr Geider stated that direct or fly-mediated fruit contaminations could be done under
laboratory conditions and that they might even occur in orchards. He personally considered
accidental contamination during harvest of fruits mo st crucial. All arguments about disease carriers
such as flies might touch a minor impact. Insects might visit rotten fruits and carry bacteria to other
locations. These flies would not typically visit flow ers. To be safe, fruit processing for export had to
be reliable for the origin of apples and fruit inspections should confirm the good conditions of the
apples. The chance of fire blight dissemination by healthy looking fruits seemed to be extremely low
or even zero.
6.20 Dr Hale noted that under extremely artificial experimental conditions it might well be
possible to produce the results clai med in Japan's submission for apple infection, contamination of
flies, and transmission of bacteria in no choice situ ations. However, these conditions did not relate to
the real-life situations likely to be encount ered. It was unlikely that high levels of E. amylovora
inoculum were associated with mature apples at ha rvest time, there was no scientific evidence of high
concentrations of E. amylovora associated with flies, and the no choice situations imposed in the
experimentation did not relate in any way to nature . The results of the experiments reported did not
provide convincing scientific evidence that mature fruit could be infected, or that flies could complete
the disease pathway for introduction and establishment of fire blight under the normal environmental
conditions likely to be associated with commercial apple production.
6.21 Dr Hayward stated that he agreed with the New Zealand assessment of the Azegami I and
Tsukamoto II studies in paragraph 20 a), b) and c) of the Third Party New Zealand submission dated
October 19, 2004.
6.22 Dr Smith pointed out that the New Zealand categorization related to the significance and
relevance of the results of the new studies, whic h was covered by the questions under 3 below.
Implicitly, it also questioned whether the results were "new". However, the results were clearly new,
in any ordinary sense. What was in question was whether they shed new li ght on the risks associated
with importing mature, symptomless apples.
Infection of fruit

Question 3: With respect to the Azegami study (2005):

(a) Does the scientific evidence demonstrate that an intact abscission layer is
effective in preventing the spread of the bacteria into fruit?

(b) Are you aware of any scientific evidence or studies demonstrating that the
abscission layer of apple would be damaged or cut under natural conditions?
(c) Does the scientific evidence demonstrate the existence of latent infection
occurring in mature apple fruit under natural conditions?
(d) Does the scientific evidence demonstrate that bacteria which exist in a fruit
bearing twig could infect apple fruit in the United States during the period from
August until just prior to harvest?
In your reply, please address paras 17-21 of US oral statement, paras. 19-21 of US second
submission (including US Exhibit 21), US and Japan's replies to Question 8 of the Panel
(including Japan Exhibit 16), US reply to Quest ion 3 of Japan and US Comments on Japan's
Answer to Question 8 of the Panel
. Please also address New Zealand's comments on post-
maturity infection (para. 47 of New Zealand th ird party submission and replies to Questions 1
and 2 from Japan ).

6.23 For questions a and b, Dr Geider stated that he was not aware of scientific data addressing
the abscission layer of apples as a barrier for E. amylovora . As pointed out by others, it might
develop late in fruit ripe ning. Nevertheless, the abscission laye r could then reduce or even abolish
any transition of bacteria from the twig to the apple tissue. Damage of the layer was possible in heavy
wind when apples on trees were shaken.
6.24 For question c, Dr Geider noted that experime nts could not easily be designed to answer the
question. A mature apple with a low amount of E. amylovora might have been infected as a flower.
It was impossible to show absence of E. amylovora in an apple at one time and colonization by the
bacteria later, because the assays relied on destruction of the fruit.
6.25 Addressing question d, Dr Geider noted that ag ain this was experimentally difficult. The
sources of a fire blight infection in a narrow area could be multiple. Nevertheless, concerning
invasion of E. amylovora from a twig, several points about natu ral infections should be considered.
Fire blight was mostly established in a host plant by pathogen transmission to flowers. To a lesser
extent, young shoots could become infected by contaminated insects resting or feeding on the
succulent tissue. The disease then would migrate from th e infection site into lower parts of the plant.
It had not been clearly shown if the bacteria ac tively moved by swimming against the vascular water
flow or if they were absorbed when the flow was reversed in some situations during a day. This
might occur after environmental changes of temperature and humidity.
6.26 Dr Geider noted that with respect to host plant species, many cultivars of European pear could
develop systemic symptoms, ie. E. amylovora spread to most or all parts of the tree. For apple trees,
symptoms were mostly restricted to branches adjace nt to the infection site. At all times, pathogen
invasion was largely promoted by young plant tissue, with Spring as the shooting season. In late
Summer, the risk and occurrence of new fire blight incidence decline. Migration of E. amylovora
from an infested branch into a disease-free branch and then into apple fruits seemed unrealistic from
the known infection steps. Pears might be more open for wide pathogen invasion on trees, but
certainly not apple trees. Apples ripen on seasonally ol d twigs expanded in Spring. Late infection of
those branches from adjacent plant tissue was unlikely to occur in a late growth season.
6.27 Dr Hale noted that for question a, when fruit was mature the abscission layer was intact. In
Azegami et al. (2005) the evidence suggested that E. amylovora did not pass through the abscission
layer into the pedicels and into the mature fruit. Internal E. amylovora had only been isolated from
fruit when inoculations had been made on cut pedicels. Azegami et al. (Exhibit JPN-16) suggested
that E. amylovora could pass from twigs, through the abscission layer into pedicels, and into mature

fruit. However, fruit were inoculated on 22 and 27 September, and 5 October, and harvested at
maturity on 22 October. Consequently, at inoculation time they might not have been mature, in which
case the abscission layer was likely to have been in complete. There was no photographic evidence of
maturity provided in this Azegami et al. study. The evidence presented by Azegami et al. (2005) did,
in fact, suggest that the intact abscission layer effectively prevented spread of bacteria from inoculated
twigs via the pedicel into fruit at ma turity. The recent study of Azegami et al. (Exhibit JPN-16) was,
once again, unpublished information on a study carried out under artificial conditions.
6.28 Dr Hale noted for question b that it was possible that the abscission layer could have been
damaged under natural conditions. However, if this did occur then the fruit would likely fall from the
tree. It was also unlikely that there would be large populations of E. amylovora present in orchards
that could inoculate the pedicel side of the damaged abscission layer with concentrations of
E. amylovora great enough to cause infections. He w as unaware of any scientific evidence that
suggested that this occurs under natural conditions.
6.29 Dr Hale noted for question c that there was no published scientific evidence to suggest the
existence of latent infection with E. amylovora in mature, symptomless apple fruit under natural
conditions. Much had been made of the fact that van der Zwet et al. (1990) referred to E. amylovora
being found in mature, symptomless fruit. However, as pointed out and discussed at length at the
Original Panel proceeding, both Dr van der Zw et and Professor Thomson clarified in written
statements that the positive detections had been in immature fruit, with one possible exception. In this
single case, epiphytic bacteria had been detected in the calyx, not the flesh, of an apple from a
blighted tree in a severely blighted orchard (Exhibit JPN-13).
6.30 Dr Hale noted that for question d there did not appear to be any published scientific
information demonstrating that E. amylovora present in fruit bearing twigs could infect fruit during
the period from August until just prior to harvest. Roberts (2002) harvested apples from trees with
multiple fire blight strikes per tree and large ooz ing cankers on trunks suggesting that inoculum
sources in fruit bearing twigs might well be present. However, E. amylovora had not been isolated
from inside the fruit tissues tested. As apples would be immature in the United States in August, any
infection from fruit bearing twigs before the absci ssion layer was completely formed would not be
likely to result in mature, symptomless fruit. Any fruit infected through this route would be unlikely
to mature.
6.31 Dr Hayward replied that he was not aware of any ev idence that bacteria which existed in a
fruit bearing twig could infect apple fruit in the United States during the period from August until just
prior to harvest. The experiments described in A zegami II attempted to address this question. Four-
year-old Jonagold apple trees in a quarantine glasshou se were inoculated into fruit-bearing twigs 30,
25 and 17 days prior to harvesting of mature fruit. Erwinia amylovora was isolated from the interior
of about 10 per cent of outwardly healthy fruit. The results could not be interpreted to mean that the
pathogen penetrated through an intact abscission laye r, because penetration prior to formation of the
abscission layer could not be excluded.
6.32 Dr Smith noted initially that the Azegami study, by using a bioluminescent strain, was
making a distinct advance in the study of the movement of fire blight bacteria within host tissues.
This technique seemed promising for the examination of a number of hypotheses about latent
infection of apple fruits.
(a) No. It pointed to this question as a matter which might now be investigated, in
further research. It was a plausible presumption, but had not been proved.
(b) No. (but this was a specialist matter beyond his normal knowledge).

(c) No. It demonstrated the existence of latent infection in mature apples under unnatural
conditions. The observations on how the bacter ia spread within the flesh of the apple
could serve as a useful guide in seeking to detect latent infections under natural
conditions, but the study did not provide an y results on latent infection under natural
conditions. The fact that the spread in the flesh was a purely physical process and not
an active "invasion" did not alter the fact that bacteria entering through the pedicel
spread within the flesh. The Azegami study and the other infection study did usefully
confirm that bacteria latently (though unnaturally) present in fruits could remain there
alive for relatively long periods of storage.
(d) The only relevant experiment on this point in Azegami (I) had given a negative result.
Other experiments could be designed to investigate this point further, but the
scientific evidence presented in Japan's first submission did not demonstrate that
bacteria in a twig could infect mature fruits at any time. Azegami (II), introduced at a
later stage, was such an experiment. It cont radicted Azegami (I) in that bacteria were
found in the fruits, the main difference in th e experimental conditions being that the
fruits were examined 3-4 weeks after the tw igs were inoculated, not one week. The
US Comments on these results were pertinent, and the situation was now confused.
A more substantial study was needed to clarify what is going on.
Question 4: Does the scientific evidence, taking also into account the Azegami study, support
Japan's statement that "If activities of the bacteria, which are known to peak during the
flowering and fruitlet seasons, remain relativ ely dormant after the spring, apples which
harbour the bacteria at a certain level will be likely to develop symptoms well in advance of
maturity, as the Original Panel found. However , there is no evidence to suggest that this is the
case, and the question of whether or not bacteria will still infect the apple fruit through the
pedicels or wounds at the late season will depend on var ious conditions." (para. 14 of Japan oral
statement - emphasis added)

6.33 Dr Geider stated that he was not aware of such evidence, but fruits could become infected
late by wounding and that local necrosis devel oping into soft-rot predominantly be caused by
microorganisms other than E. amylovora. The experiments by Azegami et al. (2005) confirmed old
data of Dueck (1974) about persistence of E. amylovora in artificially inoculated apple tissue.
6.34 Dr Geider added that in the Azegami study apples were not only inoculated at the surface but
also applied to the apple stem. Twig inoculation might get closer to trees, but it should be realized
that bacteria brought to wounds of detached plant parts might become sucked into the tissue by the
water flow driven by evaporation on the large surface of the fruit. This passive movement of cells had
even been discussed for shoot tip inoculations. W ild type strains distributed differently from non-
pathogenic mutants or even latex particles, because virulent E. amylovora cells were able to grow in
young host tissue.
6.35 Dr Hale noted that the activities of E. amylovora were well known to peak during flowering
and fruitlet development periods (T homson 2000). The most probable origin of inoculum to enable
the fire blight cycle to commence in spring was th e spread of bacteria from overwintering cankers to
open flowers. Once flowers had been infected, inf ection of fruitlets could take place together with
secondary spread of the bacteria to give shoot infections during late spring and early summer. Further
secondary spread was from these in fected tissues providing inoculum for spread to other newly
emerging susceptible shoots. Fru itlets harbouring high levels of E. amylovora would develop
symptoms and were likely to abort or show abnor mal development resulting in shrivelling well before
maturity. It had been shown that very lightly in fected flowers might develop into mature fruit and
E. amylovora may survive in the calyxes of these fruit (Hale et al. 1987).

6.36 Dr Hale stated, however, until the new information provided by Azegami et al. (2005) there
had been no suggestion that apple fruit were infect ed late in the season when apples were mature and
ready to be harvested. Azegami et al. (2005) suggested that inoculation of cut pedicels resulted in
latent infection of mature apple fruit by active movement of E. amylovora through the vascular tissue
and into the fruit. However, it was possible that the bacteria applied to the cut surfaces of the pedicels
were drawn into the fruit by transpiration rather than by an active invasion of fruit tissues. Azegami
et al. (2005) also showed that mature fruit could be infected through wounds by artificial surface
inoculation. This had also been reported by Mc Larty (1923) and Anderson (1952). However, there
were no published scientific reports of natural infection of mature fruit through pedicels, and fruit
infection from surface inoculation did not appear to be a common phenomenon in mature fruit under
natural orchard conditions.
6.37 Dr Hale noted that in a severel y blighted orchard, infection of trees was most likely in the
spring as a result of flower and shoot infection. Fruit that were infected either through the pedicel in
the early part of the growing season, or from seconda ry spread in the orchard would be immature and
would not develop into mature fruit. Therefore harvesting of mature, symptomless fruit from severely
infected orchards was unlikely.
6.38 Dr Hayward replied that the available scientific evidence did not support the statement by
Japan. That there could be a late season infect ion event in a severely infected orchard as a
consequence of storm activity was a plausible hypothesis. Roberts (2002) had not provided any
evidence of such rare, hypothetical events. Storm activity sufficient to lead to infection through a
damaged fruit spur or abscission layer would probabl y also lead to damage to fruit which would be
culled out prior to export.
6.39 Dr Hayward commented that in general epidemiological studies on sources of inoculum and
modes of dissemination were best carried out unde r field conditions in countries or regions where a
disease was endemic. In a country where the disease did not occur work, if it was contemplated at all,
should be contained and limited to a PC3 laboratory or to a quarantine glasshouse, as in the case of
Azegami I and II and Tsukamoto I and II. Thei r studies were carried out under highly artificial
conditions. Fundamental questions about disease ep idemiology could be answered on an agreed
collaborative basis between countries affected or threatened by the disease.
6.40 Dr Smith noted that Japan's statements suggested th at apples might acquire bacteria early in
the season and, rather than develop symptoms, remain latently infected to maturity. There was,
however, a considerable body of evidence that E. amylovora was not isolated from mature apples.
This did not altogether exclude the possibility that a small number of such latent infections do occur,
but no new evidence was given on this point. The question whether mature apple fruits could be
infected at a late stage through the pedicels was a ddressed by the contradictory results of Azegami (I)
and Azegami (II) (cf. above). The evidence available still did not show that latently infected mature
fruits existed at all under natura l conditions, but the Azegami results provided a basis for further
research to determine this.
Question 5: Do you concur with the US stat ement that "if … the pedicel is a conduit for
entry of bacteria into maturing apple frui t, the numerous earlier studies on mature,
symptomless apple fruit harvested from severely blighted trees would have isolated bacteria
within the fruits' tissues"? (para. 18 of US oral statement)

6.41 Dr Geider stated it was thought that fruits get fire blight from flower infections followed by
bacterial migration into the developing fruit and not from stem infections.
6.42 Dr Hale noted that if E. amylovora enter fruit through the pedicel as they mature it was
almost certain that the detailed studies conducted (Roberts et al. 1989; Dueck 1974) would have

isolated E. amylovora from within the fruit cortex and stem tissues as well as from the core tissues of
apples from severely infected orchards. That E. amylovora was not isolated in these studies suggested
that the pathogen had not been present in the fru it tissues. However, the published scientific data
provided evidence of mature fruit be ing epiphytically infested when E. amylovora was found in the
calyx (Hale et al. 1987; Thomson (Exhibit JPN13)) as a result of flower infestation in the spring.
6.43 Dr Hayward replied that he agreed with the US statement. The work of Azegami I and II did
not prove the existence of mature, symptomless, latently infected apple fruit.
6.44 Dr Smith commented that it seemed unlikely that such bacteria would have been missed.
Question 6: Is there a clear physiological distin ction between the core and the cortex of an
apple? Please comment on Japan's arguments th at previous studies regarding the existence of
E. amylovora inside of apple fruit relied on examinatio ns only of the core of apples and not of
the cortex. Please comment on the relevance, if any, of the studies by Roberts (2002), Roberts
(1989) and Dueck (1974) in this regard. (See para. 27 of US second submission, US reply to
Question 5 of Japan and Japan's comment on the US reply.)

6.45 Dr Geider stated that the cortex of plants was defined as exodermis of tissue, such as the
cortex involved in water uptake of roots or the bark of stems. Core should be the center part of an
organ. The definition might be expanded to apples (skin/apple core). A gradient of E. amylovora
within inoculated fruits could be shown using gfp-labeled bacteria. A gradient would exist from the
inoculation site of E. amylovora to other parts of the apple tissue.
6.46 Dr Hale noted that there was a distinction between core and the cortex of an apple. However,
it should be noted that these two areas of the appl e fruit were connected by their vasculature as the
vascular bundles of the cortex and core tissues were contiguous.
6.47 Dr Hale commented that Roberts et al. (1989) had, in fact, examined both core and cortex
tissue, the stem, and calyx tissue of apple fruit from severely blighted trees and had been unable to
detect E. amylovora in any of these tissues. This confirmed the result of Dueck (1974) who had also
found that E. amylovora was not isolated from the internal tissues of mature apples harvested from
severely infected trees. Although Japan commented that both Dueck (1974) and Roberts et al. (1989)
had targeted the core tissue it seemed clear that ve rtical cores taken through the fruit included stem,
cortex, core, and calyx tissues. Although Roberts (2002) had examined mainly core tissue, cortex
tissue was likely to have been associated with the core tissues sampled.
6.48 Dr Hayward replied that insofar as the vascula r tissue of the apple fruit cortex was
contiguous with the vascular tissue of the apple fru it core there was no clear physiological distinction
between the core and cortex of the apple. It w as not possible to make a separate estimation of the
bacterial population of the core of the apple distinct from that of the apple cortex or "flesh", at least
not under routine conditions. In the work of Ro berts (2002) mature apple fruit had been surface
sterilized by immersion in hypochlorite, sonicated, rin sed in sterile water, and the core of the fruit
removed with a sterile cork borer. The stem and cal yx ends of the sample had been excised with a
sterile scalpel and discarded. The remainder of the core sample would have included a portion of the
cortex and "flesh" of the apple. The argumen t from Japan that previous studies regarding the
existence of E. amylovora inside of apple fruit were not comparable to Azegami I and Tsukamoto I,
because the latter studied only "flesh" populations and the earlier studies only core populations, was
not supported.
6.49 Dr Smith noted that there was a clear anatomical difference. It was not clear what was meant
by a physiological difference or why this should be relevant. Both Roberts (1989), and Dueck (1974)
explicitly referred to the sampling of cortex tissue. Roberts (2002) referred only to the sampling of

apple cores (but, by the method used, it seemed likel y that some cortex tissue would also have been
present in the samples). There seemed to be some verbal confusion concerning the use of the words
"cortex" and "flesh". "Cortex" tissue was "flesh" tissue.
Question 7: The US makes reference to "mature, therefore symptomless, apples" (see, e.g.
footnote 2 of US first submission). Do you concur that mature apples are necessarily
symptomless (with respect to fire blight)? Please explain.

6.50 Dr Geider stated that mature apples might have symptoms of soft-rot. These might be
initiated by E. amylovora and then colonized by rotting microorganisms. Again, mature fruits did not
develop typical disease symptoms of fire blight. There might be few data applying modern analyses
such as PCR showing that "healthy" apples from orchards could carry E. amylovora in the core part.
According to reports from New Zealand E. amylovora had been occasionally detected in the calyx.
6.51 Dr Hale noted that apples infected with E. amylovora during the immature stage of growth
did not develop to maturity. Despite the unpublished evidence of Azegami et al. (2005) that mature
fruit could be infected under artificial experimental conditions of inoculation of cut pedicels, there
was no evidence of infection of mature fruit occu rring naturally in orchards at harvest time.
Consequently, it was most likely that mature fruit would be symptomless as far as fire blight was
concerned. Immature fruit certainly became infect ed, probably from infected flower parts early in the
season, and from external sources during the season. Although infection of mature fruit in orchards
had not been documented, whenever this had been suggested, in depth analyses had confirmed that
fruit had been, in fact, immature.
6.52 Dr Hale commented that it was probably more co rrect to refer to "mature, symptomless fruit"
rather than to "mature, and therefore symptomless fr uit" as far as fire blight was concerned, although
equivalence was implied.
6.53 Dr Hayward replied that he accepted that the US exported mature apple fruit free of fire
blight symptoms. The weight of evidence was that if there was infection at the blossom stage the
immature fruit or fruitlet would not develop; and mature, symptomless fruit on the evidence available
were devoid of populations of E. amylovora. Apple fruit maturity was a relatively well defined
concept.
6.54 Dr Smith commented that this matter had been established in the Original Panel Proceedings.
Mature apples with external fire blight sympto ms had never been seen. The word "necessarily" was
not appropriate, in that it implied there should be an essential reason why mature apples were not
affected by fire blight. There was no very clear scientific explanation why this should be so; it just
was. Another possibility to be considered was that mature apples could show internal symptoms, not
visible externally. But there was no information in the literature to suggest that this ever happened,
and it seemed in principle unlikely since in several studies bacteria had not been recovered from the
internal tissues of fruits.
Question 8: In the light of the Azegami study or any other recent scientific developments,
would you wish to modify your reply to Questions 2 and/or 10 from the Original Panel
proceedings?

6.55 Dr Geider stated that artificial inoculation had to result in fruit with bacteria. Tissue of
apples was a sterile environment, suited for persistence of E. amylovora . No defense reactions of
fruits were known to quickly diminish the E. amylovora population as in HR lesions of non-host
plants

6.56 Dr Hale noted that the results of Azegami et al. (2005), although suggesting that mature fruit
could be invaded by E. amylovora after artificial inoculation of cut pedicels, did not provide
convincing evidence that mature fruit were likely to become infected under natural conditions in an
orchard. Low level flower infection could lead to E. amylovora infestations of calyx tissues (Hale et
al. 1987). However, this did not result in fruit in fection. As a consequence there was no published
evidence to suggest that mature apple fruit had been shown to be infected internally under natural
conditions, or that they had ever been implicated in the introduction and establishment of fire blight
in an area free of the disease.
6.57 Dr Hale commented that apart from the unpublished Azegami et al. (2005) study of cut
pedicel inoculations there was no evidence to suggest that mature, symptomless apple fruit had been
endophytically contaminated with E. amylovora. Consequently, endophytic E. amylovora were
extremely unlikely to be responsible for the establishment of new disease outbreaks.
6.58 Dr Hale concluded that the evidence provided di d not suggest that mature, symptomless fruit
were a source of endophytic E. amylovora in nature, or that they were involved in the spread of the
disease.
6.59 Dr Hayward replied that he had not been persuaded by the studies of Azegami I, Azegami II
or Tsukamoto I, or any other scientific developments , to change his answers to Questions 2 and 10 of
the Original Panel proceedings.
6.60 Dr Smith stressed that he stood by what he replie d in the Original Panel proceedings. The
suggested scenario of Japan was that bacteria might enter mature fruits, from infections on twigs,
through the pedicels, and be carried by the vascular system of the fruit to the cortex, where they might
persist as a latent infection. There was no direct evidence that this happened under natural conditions.
It seemed implausible that earlier studies on the isolation of bacteria from inside fruits, which
included cortex, somehow had failed to detect these infections.
Contamination in orchards

Question 9: In the September 2004 PRA, Section 2-3-1-1(2)(A) indicates that "...the
physiological activity of the bacteria inside the tr ees does not appear to be declining during the
seasons (sic)". However, the section then makes reference to Norelli et. al (2001) which
mentions that "... the bacterial activity is st ill recognizable during the late growing season".
That bacteria can still be found does not appear to confirm a statement of no decline in bacterial
activity. Please explain. (See Japan's reply to Question 23 of the Panel and US comments on
Japan's reply.)

6.61 Dr Geider clarified that due to the limited amount of data in his lab about events spreading
fire blight in orchards, he could only add a few personal remarks.
6.62 Dr Geider stated that usually, the most active st arters for fire blight in Spring were oozing
cankers on stems. There had been a claim that an E. amylovora population inside trees did not result
in spread of the fire blight provided that all cankers had been removed or protected against insects. It
could be asked how E. amylovora persisted in trees apart from tissu e with symptoms. Cankers were
oozing heavily in Spring and declin ed later in season with lower root pressure. Bacterial activity
could be defined as spread in plant tissue, which wa s associated with young shoots or leaves. Second
bloom of pears might have provided a boost of bact erial activity, but this might not have affected
invasion of fruits if any.
6.63 Dr Hale noted that there did appear to be some c onfusion in these statements. That bacterial
activity was still recognisable did not necessarily suggest that this was an important factor in the

possible spread of E. amylovora to mature fruit. Rather, as the Norelli et al. (2001) study suggested,
the movement of bacteria was from the scion to the rootstock i.e. downwards. There was no
suggestion in either of the detailed studies of movement of E. amylovora in apple trees by Norelli et
al. (2001) (also as Momol et al. 1998) or Gowda & Goodman (1970) that there was any movement of
E. amylovora into mature apple fruit at the end of the season.
6.64 Dr Hayward replied that the work of Norelli et al. (2001) was primarily concerned with the
movement of the fire blight pat hogen downwards from the shoots of the artificially inoculated scion
into the rootstock. Their paper did not provide data indicating that natural movement of the pathogen
into maturing apple fruit occured in the late r phases of the growing season. There was ample
evidence in the literature that a slowing down of fire blight activity occurred as the summer
progresses. Norelli and co-workers had inoculated th e shoots of scions in May, June and July, and
had found evidence of a relatively low incidence and rate of spread downwards of internal populations
of the pathogen when scions were inoculated in May or June and a relatively higher incidence and rate
of spread when inoculations were made in July. The work of Gowda and Goodman (1970) showed
that the movement and persistence of Erwinia amylovora within artificially inoculated plants was
discontinuous rather than continuous with a shar p decline in population of the pathogen at distance
from the point of inoculation. The pathogen had no t persisted in non-succulent stem tissue. This
evidence did not support the concept of continuous movement of the bacterium through the plant
throughout the growing season.
6.65 Dr Smith noted that "activity" of the bacteria was a vague concept. Here were some things
that bacteria could do: multiply; produce enzymes or other substances which damage the host tissues
and cause local symptoms; move within the plant; multiply to such an extent, with production of
extracellular polysaccharide, that a " bacterial ooz e" was secreted on the surface of the plant; be
carried to other plants; just survive. They coul d also die out. Most of these activities happened in
spring. Later, bacteria generally stopped cau sing damage and stopped oozing, and thus stopped
spreading to other plants, but they might still multiply to a certain extent, they might still move in the
plant, and they certainly survived (at least some of them). It was by no means clear what the PRA
meant by activity, or what Norelli et al. meant by activity. Hence the confusion.
Question 10: Japan contends that the fire blight freedom requirement is applicable not
necessarily at the orchard level but at a sub-orch ard (production site) level as long as this sub-
unit is surrounded by a fire blight-free border zo ne (para. 43 of Japan's second submission and
the Operational Criteria). How is an orchard defined for export purposes? Is this based on
international agreement(s) or common practice, or does it differ for different fruits, and/or
different countries? Please comment on any scien tific evidence or literature relating to border
zones and their effect on the fire blight status of an orchard (or sub-orchard). Does it depend on
the "varieties" of apple trees in terms of their susceptibility to fire blight? (See US and Japan's
replies to Question 5 of the Panel and Japan's comment on the US reply.)

6.66 Dr Geider stated freedom from fire blight could not be rigorously shown in an orchard.
Border zones were mostly connected with the dist ance of bee flight, but there were all kinds of
transitions possible including fire blight susceptibility of apple cultivars.
6.67 Dr Hale noted that there did not appear to be a clear definition of an orchard based on any
international agreement. The term orchard in common practice usually referred to a production area
under a single management structure. For export purposes in many countries orchards were registered
with a grower organisation with a number that appeared on packaging, and even on each piece of
fruit, that could be used for traceability purpos es by regulatory authorities, wholesalers, and
supermarkets. Within an orchard there were likely to be different fruits and different varieties of
fruits being grown. These were commonly designated as orchard blocks in many countries.

6.68 Dr Hale noted that buffer zones might be reco mmended for eradication purposes, particularly
around nurseries, rather than as a requirement ar ound a production site. There was very little
literature on the effects of buffer zones on the fire blight status of orchards. Clark et al. (1993)
reported that E. amylovora had not been detected in the calyxes of some 60000 fruit tested from
inspected orchards with 500 metre buffer zones. However, more recently Roberts (2002) had shown
conclusively that no buffer zone of any size was justified by existing scientific data to provide
phytosanitary protection, as mature, symptomless fruit, harvested from either blighted trees or
adjacent to blighted trees, did not harbour E. amylovora. In this study 30,900 mature, symptomless
fruit had been harvested from 0 –300 metres from fire bli ght inoculum sources. None of the fruit that
had been subsequently cool-stored had developed fire blight symptoms and E. amylovora had not
been detected in any of the fruit, even when harvested from blighted trees or in close proximity to fire
blight sources.
6.69 Dr Hale commented that as there was no p ublished scientific evidence that mature,
symptomless fruit from resistant or least resistant a pple varieties contained in ternal populations of
E. amylovora, even when harvested from blighted trees or from adjacent to inoculum sources, then
there would appear to be no justification for border zones at all. Consequently, there was no need to
distinguish between resistant and least resistant varieties in terms of their susceptibility to fire blight.
6.70 Dr Hayward replied that he was unable to comment on the question "How is an orchard
defined for export purposes" and that he did not know whether this was based on international
agreement(s) or common practice. There would be differences between different fruits and countries.
6.71 Dr Hayward commented that the field experiments of Roberts (2002), planned jointly
between Japan MAFF and the USDA-ARS, were most re levant to border zones and their effect on the
fire blight status of an orchard (or sub-orchard). At the first of the two sites chosen 'Gala' trees had
been used as the source of inoculum, at the second site susceptible infected pear trees had been
interplanted with apple trees including 'Fuji' and 'Gala' . 'Fuji' and 'Gala' were considered to be among
the least resistant of apple cultivars to fire bli ght disease. The results which Roberts had obtained
showed that a buffer zone of any size provide d no phytosanitary security. Apples examined
immediately after harvest or those cold stored for th ree months had been equally free of fire blight.
There had been no difference between fruit harvested from trees 0, 10, 25, 50, 100 or 300 meters from
the source of the fire blight inoculum.
6.72 Dr Smith highlighted that ISPM no. 5 Glossary of Phytosanitary Terms defined a "place of
production" as: "Any premises or collection of fields operated as a single produc tion or farming unit.
This may include production sites which are separ ately managed for phytosanitary purposes", and a
pest-free place of production as a "Place of production in which a specific pest does not occur as
demonstrated by scientific evidence and in which, where appropriate, this condition is being officially
maintained for a defined period." It defined a "pest-free production site" as: "A defined portion of a
place of production in which a specific pest does not occur as demonstrated by scientific evidence and in
which, where appropriate, this condition is being officially maintained for a defined period and that is
managed as a separate unit in the same way as a pest free place of production". An export orchard
might, accordingly, be a "place of production" or a "production site", and phytosanitary measures
might as appropriate apply to either. This termi nology was internationally agreed (though this did not
necessarily mean that all exporting contracting parties explicitly used these concepts). It was common
practice. The definitions did not limit in any way the terms' application to any kind of crop in any
country. However, whether the requirement for a pest-free place of production, or a pest-free
production site, was an effective phytosanitary meas ure was a technical question depending primarily
on the biology of the pest and also on the management of the crop. To make these measures effective,
it might be necessary to require freedom also for the immediate vicinity (a concept used by the
European Union), or to a defined buffer zone (a term in ISPM no 5). Or this type of measure might
simply not be effective at all (e.g. for an insect pest that readily flies hundreds of metres). Because

fire blight only spread to the surface of fruits ove r very short distances, it would have been perfectly
reasonable to propose that production sites within a place of production could be "managed as a
separate unit in the same way as a pest-free place of production" by being surrounded by a fairly
narrow border zone. The degree of susceptibility of the apple variety was not a point of major
importance (assuming that the width of the border zone must in any case be set in relation to a
susceptible variety).
Question 11: Is there a commonly accepted proced ure for the inspection of apple orchards for
fire blight symptoms? Please describe how such inspections are undertaken. How do they
compare with Japan's inspection methods? (See pa ras. 56-58 of Japan's first submission, the
Operational Criteria-Exhibit JPN-2, and US and Japan's replies to Question 7 of the Panel.)

6.73 Dr Geider stated that to his knowledge, there were differing demands for inspection. Fire
blight was best noticed in Spring/early Summer, tim es not close to fruit ripening. It was a rare event
and also difficult to detect new fire blight incidences at the harvesting period.
6.74 Dr Hale noted there did not appear to be a commonly accepted procedure for inspection of
apple orchards for the presence of fire blight symp toms. If an inspection was deemed to be required
as part of any operational procedures, then any me thodology needed to be agreed by the parties
concerned. The use of four-wheel motorcycles ha d been discussed at the time but had never been
employed when inspections had been done in New Zealand.
6.75 Dr Hayward replied that for first and second ques tions he had no comment. Concerning the
third question, he commented that the Operational Criteria for the Exportation of US Apples to Japan
(Exhibit JPN-2) proposed an annual inspection from a buggy car designed to scan the exterior of
apple trees inside the orchard for typical symptoms on large branch(es). The assumption was made
that identification of a single fire blight strike was predictive of severe fire blight throughout the entire
orchard. An orchard could not be designated as severely blighted without a thorough examination of
the orchard. It was entirely possible that an orch ard in which one infected tree had been identified
was lightly infected rather than severely blighted.
6.76 Dr Smith stated that such procedures certainly existed in Europe, since orchards falling
within fire blight buffer zones (for nurseries) had to be monitored. But he di d not have details. On
the whole, nurseries with fire blight host plants were not set up anywhere near orchards; it saved
trouble.
Question 12: Is there a commonly accepted definition in the scientific literature of what is a
"blighted" orchard with respect to fire blight? A "severely blighted" orchard? (See Japan's
reply to Question 14 of the Panel.)

6.77 Dr Geider stated that there should be no severely blighted commercial orchards. In that
case, the orchard was not suited for fruit production and the trees had to be removed. An orchard with
only one fire blight strike was a blighted orchard and should be handled with care for fruit trade to fire
blight-free countries.
6.78 Dr Hale noted that there did not appear to be co mmonly accepted definitions in the scientific
literature of "blighted" or "severely blighted" orchards. Hale et al. (1987) had used the term
"severely blighted" for orchards containing an averag e of 75+ fire blight strikes per tree. However,
the authors had not been specifically attempting to provide a definition of the severity of blight in an
orchard for inspection purposes. They had been pr oviding a numerical value to show the numbers of
strikes per tree in an orchard and the re lationship with the presence or absence of E. amylovora
associated with the surfaces and ca lyxes of mature, symptomless fruit. It should be noted that
E. amylovora had not been detected on the surfaces of an y fruit from an orchard with 75 fire blight

strikes per tree, and only from calyxes of <1 per cent of the mature, symptomless apples harvested.
E. amylovora had not been detected on the surfaces or in the calyxes of any of the fruit from orchards
with an average of 1-2 fire blight strikes per tree.
6.79 Dr Hale commented that it should be mentioned that an orchard with 75 strikes per tree
would, in fact, require very little inspection, as th is level of infection in trees would be very obvious
by even a cursory glance. Consequently, th e comments from the Japanese inspectors (Exhibit JPN-
15), who found orchards with "an apple tree with a symptom of fire blight" did not suggest that the
orchards would have been "severely infected (bli ghted)" - despite the lack of a commonly accepted
definition.
6.80 Dr Hayward replied that a severely blighted appl e orchard was one in which there are 75
infections per tree (Hale, McRae and Thomson, 1987) or 50-100 strikes per tree (Exhibit JPN-13
Letter from Sherman Thomson to Rodney Roberts, August 23, 2002). A lightly infected orchard
would be one in which there were 1-2 terminal s hoots infected per tree (H ale, McRae and Thomson,
1987).
6.81 Dr Smith stated that there were no such definitions (though Dr Hale had suggested one at the
time of the Original Panel). Simplistically, one could consider, since E. amylovora was a quarantine
pest, that a blighted orchard was one where any fire blight had been detected. A severely blighted
orchard could be one where symptoms of the disease could be found without di fficulty in any part of
the orchard. But these were just suggestions.
Question 13: Does the available scientific eviden ce demonstrate that imports of mature apple
fruit from severely blighted orchards could comple te a pathway for introduction of fire blight
into an orchard?

6.82 Dr Geider stated that due to a rare long distance sp read of fire blight, only plant trade could
be connected with the introduction of fire blight.
6.83 Dr Hale noted that the available published scientific evidence suggested that imports of
mature, symptomless apple fruit fro m "severely blighted" (75 strikes per tree) orchards would not
provide a pathway for the introduction of fire blight into an orchard. Hale et al. (1987) had shown
that E. amylovora had been isolated only from <1 per cent of the calyxes of mature, symptomless fruit
harvested from a "severely" blighted orchard. Hale et al. (1996) and Taylor et al. (2002, 2003) had
found no evidence that E. amylovora in the calyxes of mature, symptomless fruit could be
disseminated to susceptible host tissues in an orchard under natural conditions.
6.84 Dr Hayward replied that the available scientific evidence did not demonstrate that imports of
mature apple fruit from severely blighted orchards could complete a pathway for introduction of fire
blight into an orchard.
6.85 Dr Smith commented that in theory, the pathway as far as the entry into Japan of an apple
carrying living bacteria could be achieved in two wa ys: a) by bacteria being splashed onto the apple
from the severely blighted tree and then persisting epiphytically (which they would do for a limited
period only, and which coul d be prevented by surface disinfestation); b) by the establishment of a
latent internal infection (as noted above, it remain ed controversial whether th is could happen at all;
accumulated scientific evidence strongly suggested that, if it could, this remained a rare
phenomenon). The completion of the pathway into the orchard then depended on a succession of
conjectural events whose reality was still not demonstrated.

Question 14: In the light of recent scientific de velopments and/or the new scientific evidence
presented by Japan, would you wish to modify your response to Question 24 from the Original
Panel proceedings regarding buffer zones?

6.86 Dr Geider stated that he would not really modify his answer. Buffer zones sounded secure.
There were many examples that fire blight could quickly move into "clean" orchards, often after
persistence with unattended host plants such as hawthorn hedges in the neighborhood.
6.87 Dr Hale noted that the unpublished evidence pres ented by Japan did not alter the earlier
response to Question 24 from the Original Panel pr oceedings regarding buffer zones. There was no
scientific evidence that mature , symptomless apple fruit under natural conditions harboured
populations of E. amylovora that were capable of disseminating fire blight. The unpublished
information presented in Azegami et al. (2005) was from work carried out under artificial inoculation
conditions and could not be consider ed to be relevant to the issue under dispute. Finally there was no
scientific evidence that mature, sy mptomless apple fruit had ever been involved in the introduction
and spread of fire blight worldwide despite many decades of trade in the commodity. Consequently,
no buffer zones of any size were justified as a means of reducing the risk of fire blight transmission on
mature, symptomless apple fruit.
6.88 Dr Hayward replied that none of the new scientific evidence in his possession was sufficient
to change his answer to Question 24 from the Original Panel, or sufficient to discount the evidence of
Roberts (2002).
6.89 Dr Smith stated that he would not modify his answer. But it did seem that Japan had
responded to the experts' views on this point by re ducing the width of the buffer zones from 500 to 10
m. With the addition of the idea that the work ing unit was a production site within the place of
production (see 10 above), the area which was disqualified for export as a result of a single find of fire
blight was very much less in the new measure than in the old (contrary to the suggestions of the US
submission).
Post-harvest treatment of apple fruit

Question 15: According to Japan's MAFF Notification No. 354, US apples "must be treated
with pulp temperature at 2.2 degrees for 55 days in a cold treatment facility" (item 4(1)a, in
Exhibit USA-7). New Zealand contends (paras. 41-43 of its third party submission) that the
Tsukamoto study (2005a) is not representative of commercial circumstances since, in the
experiment, artificially infected apples were subject first to a temperature treatment of
25 degrees for up to 9 days before being stored at 5 degrees for up to 6 months. To what extent
are the results of the Tsukamoto study (2005a) relevant given Japan's post-harvest cold
treatment requirement? (See Japan's replies to Qu estions 9 and 17 of the Panel, US replies to
Question 9 of the Panel and Question 7 of Japan, and New Zealand's reply to Question 5 of the
Panel.)

6.90 Dr Geider stated that the preprints by Tsukamoto et al . and by Azegami et al . show
persistence of E. amylovora in artificially inoculated apples at various temperatures. If apples became
contaminated by chance, E. amylovora would survive for a long time. Too many requirements had to
be realized to establish fire blight from these fruits in an orchard. An example could be given from a
commercial apple orchard in the Heidelberg area of Germany. A small lot of quince trees had been
heavily fire-blighted. They had confirmed the presence of E. amylovora by several detection
methods, and could not find a difference to other "fru it tree" strains. The diseased lot had been kept
in this stage for several years due to labor shorta ge. The adjacent apple trees in 5 m distance had not
developed fire blight during that time or later, probably due to different blooming periods of apple and
quince.

6.91 Dr Hale noted that it was a fact that Japan requi red fruit to be stored at 2.2 degrees Celsius
for 55 days as a treatment for codling moth.
6.92 Dr Hale noted that there was probably not like ly to be much difference in survival of
E. amylovora between 2.2 degrees Celsius (Japan's require ment for codling moth treatment) and the
5 degrees Celsius used in the E. amylovora survival experiment (Tsukamoto et al. 2005a). However,
the important issues were those of experimental infe ction of mature fruit by artificial inoculation of
cut pedicels, and the incubation of the artificially inoculated fruit at 25 degrees Celsius for 9 days
before cool storing.
6.93 Dr Hale commented that there was no published scientific evidence to suggest that mature,
symptomless fruit were infected via the pedicel s under natural conditions. The incubation of
inoculated fruit at 25 degrees Celsius for 9 days prior to cool storage at 5 degrees Celsius was
certainly not a situation that would apply under norm al commercial condition of harvest, cool storage,
and export of apples. Consequently, the Tsukamoto et al. (2005a) study relating to the survival of
E. amylovora in inoculated and incubated fruit did not pr esent any useful information. The ability to
isolate E. amylovora from artificially inoculated fruit after several months was, in fact, not new
information as pointed out in the US response to Question 7 from Japan.
6.94 Dr Hayward replied that the apples used in the Tsukamoto I study had been artificially
inoculated through the pedicel. They had been incubated for 9 days at 25 degrees Celsius, a
temperature within the optimum range for grow th (25-27 degrees Celsius; J-P Paulin, 2000) for
E. amylovora in culture in the laboratory, then stored at 5 degrees Celsius for up to 6 months. The
minimum temperature for growth of E. amylovora was given as within the range of 3-5 degrees
Celsius (J-P Paulin, 2000) in culture, but was depe ndent on the substratum. For example, Taylor and
Hale (2003) had obtained growth in a 20 day period at a temperature of 2.2 degrees Celsius in a
nutrient medium but a decline at this storage temperature in populations of the pathogen in the apple
calyx after inoculation at high, medium and lo w inoculum levels of inoculum. The minimum
temperature for growth was likely to vary to a sm all degree with the natu re of the substratum,
particularly solid versus liquid nutrient medium. Populations of Erwinia amylovora declined on apple
stems and calyxes to an undetectable level when stor ed for six month at a temperature of 2-4 degrees
Celsius (Sholberg et al. 1988).
6.95 Dr Hayward noted that the treatment to which the artificially inoculated apples had been
subjected in the Tsukamoto I study had been unlike that used in commercial conditions. For example,
New Zealand held mature apples in cold store at temperatures ranging from 0.5 to 2.0 degrees Celsius
with a variation of +/- 0.5 degrees Celsius. Japan 's Detailed Rules on post-harvest treatment required
that harvested apples are kept at a pulp temperature of 2.2 degrees Celsius (+/- 0.6 degrees Celsius)
for 55 days as a measure against the codling moth (Exhibit JPN-1).
6.96 Dr Hayward noted that the apples subjected to the treatment in the Tsukamoto I study had
deteriorated and had developed fire blight symptoms during storage. The experiment did not relate to
normal commercial conditions. The experiment appear ed to relate to the assumption that there were
mature, symptomless, latently in fected fruit resulting from the hypothetical late infection event in
which bacteria pass through the fruit pedicel just pr ior to the formation of the abscission layer. There
was no evidence for this late infection event.
6.97 Dr Smith commented that the New Zealand remarks were pertinent. Tsukamoto (I) was the
weakest part of the "new studies". It would not have been difficult to conduct the study at more than a
single temperature. If it had been shown that latent infections of the kind artificially created in the
Azegami study did occur naturally, then it would ha ve been essential to broaden the Tsukamoto study
to include a variety of storage conditions, to determ ine how long these latent infections could really
persist.

Question 16: In the 2004 PRA (p. 19), Japan ma kes reference to potential contamination via
fruit boxes. Is there any scientific evidence demo nstrating that contaminated fruit boxes would
infect/infest apple fruit that is shipped in these boxes? Please comment in light of your response
to Question 31 from the Original Panel proceed ing. (See also US and Japan's replies to
Question 10 of the Panel.)

6.98 Dr Geider stated that it had been a guess of Eve Billing and co-worker that fire blight might
have been introduced to England via contaminated fru it boxes. It was not possible to trace this event
back to the 50's except by specula tion and circumstantial evidence. E. amylovora could survive
indeed for a long time in wood. They had found bact eria with infested apple stems after seven years
of storage in a cold room. Modern fruit packing often used paper boxes and circumvented thus the
use of wooden caskets.
6.99 Dr Hale noted that as pointed out by the United States in response to Question 10 from the
Panel, disposable cardboard boxes, rather than wooden or plastic crates, were now used in commercial
apple export systems. Mature, symptomless apple fru it would not pose any risk when shipped in this
type of container as there was no likelihood that the containers could become contaminated and
reused.
6.100 Dr Hayward replied that there was no new evidence showing that contaminated fruit boxes
would infect/infest apple fruit since the Original Panel proceeding; accordingly he saw no reason to
change his response to Question 31. Unused, dispo sable cardboard boxes were used by US industry.
Wooden crates had ceased to be used long ago. Th ere was still speculation about the involvement of
blighted pears and wooden crates in the first out break in the UK in 1955-57, but no new evidence
(Billing and Berrie, 2002).
6.101 Dr Smith noted that the 2004 PRA referred back to old ideas about fruit boxes. His reply to
Q 31 still applied: these ideas were conjectures in the first place, and had been in practice disregarded
ever since (except by repetition in reviews), sinc e practically no research has been done on this
possibility. It was not enough for PRAs to quote po ssibilities from old scientific literature; they also
had to be technically evaluated in the light of more recent information. Note that there was a recent
article - Ceroni et al. (2004), Survival of Erwinia amylovora on pears and on fruit containers in cold
storage and outdoors, Bulletin OEPP/EPPO Bulletin 34, 109-115 - on the duration of survival of
E. amylovora on wood and plastic containers and on packi ng materials. This gave a maximum figure
of 77 days survival on wooden boxes in cold store. The article did not investigate whether such
contamination can in fact lead to spread, or to the contamination of fruits.
6.102 Dr Smith added that in the present context, it was al so interesting to refer to the article of
Billing & Berrie (2002) A re-examination of fire blight epidemiology in England. Acta Horticulturae
no. 590, 61-67. Though the article was mainly concerned with how fire blight spread in England, it
also re-examined how it might have arrived, and raised several issues that were very relevant to the
points under discussion. The article suggested again that fruit boxes had been involved. However, it
further suggested that 1954 was a severe blight ye ar in California, leading to some post-harvest
rotting. It suggested that lots of pears imported into southern England included some rotting fruits, or
rotted in transit, that these lots had been discarded in rubbish dumps and that E. amylovora had then
spread to host plants by insects or birds. Thus, th e suggestion was that the pathway in question in this
Dispute had in fact been completed (at least on pear s) in the 1950s when fire blight first arrived in
England. However, the only new element in this suggestion was the fact of the severe fire blight
outbreak in California in 1954. It was only conjectured that: E. amylovora rotted the pears (though
E. amylovora was not normally understood to cause any pos t-harvest rotting, so other organisms had
presumably been responsible); that it had survived transit in rotted pears and discarding to rubbish
dumps; that such discarding actually took place to a significant and unusual extent; that there had
been then a pathway to hosts. Th e article also indicated that pears had been imported from USA to

England for many years before that, without fire blight having been introduced. The authors
considered this "surprising", but Dr Smith suggested that this only showed their preconceptions. On
the contrary, it was further evidence that fruits were not a pathway.
Question 17: Do you concur with Japan's assertion that the requirement of disinfestation of
packing facilities "is a normal requirement in any process"? (para. 25 of Japan's oral
statement) Is there any scientific evidence that E. amylovora has spread through
packing/sorting lines to non-contaminated fruit? Please comment in light of your responses to
Questions 26 and 27 from the Original Panel pro ceeding. (See also US and Japan's replies to
Question 11 of the Panel.)

6.103 Dr Geider stated that there was no evidence that E. amylovora had spread by fruit packing.
If there were contaminated fruits, healthy fruits would not become infected unless by wounding.
Again, there was little propagation of E. amylovora in mature apples and to his experience no ooze
formation had been caused by the fire blight path ogen. Disinfection of containers might have only
been needed in case of reuse, fru it treatment still seemed to be unn ecessary in respect to distribution
of fire blight and might cause a health risk for consumers.
6.104 Dr Hale noted that whilst a level of sanitation was likely to be the normal situation in most
packing/sorting facilities there was no reason for it to be a mandatory requirement as there was no
published scientific evidence to suggest that mature , symptomless apple fruit could be infected with
fire blight from contact with packing/sorting lines.
6.105 Dr Hale noted that it was possible that mature, symptomless apple fruit from "severely
blighted" orchards (75+fire blight strikes per tr ee) might be infested with small populations of
E. amylovora in calyxes (Hale et al. 1987). However, there was no scientific evidence of surface
contamination of fruit from these orchards. Co nsequently, there was very little likelihood of
contamination of packing/sorting lines or othe r fruit, and no likelihood of infection from these
sources.
6.106 Dr Hayward replied that he had no comment to the fi rst question. To the second, he had not
been able to find any scientific evidence that E. amylovora had been spread through packing/sorting
lines to non-contaminated fruit. Since the cardboa rd boxes used for pack ing apples in the United
States were being used for the first time there wa s no possibility of infestation/infection of apples
occurring through contact with the surface of the box.
6.107 Dr Hayward noted that upon rereading the evid ence on this subject, and the description of the
procedures used by the United States he would change the last two sentences in para. 6.151 of the
Original Panel proceedings to read as follows: If apples were harvested either from a disease-free
orchard or one in which there was a low level of in fection a post-harvest treatment should be avoided,
unless required for other reasons.
6.108 Dr Smith noted that he was not in detail familia r with the cleaning procedures of packing
facilities. Nor did the Japanese requirements seem ve ry specific (disinfection of the "interior" with
sodium hypochlorite prior to use and whenever n ecessary). Maybe this hardly went further than
normal good-practice cleaning. In the PRA, the pur pose and effectiveness of disinfection of facilities
was hardly touched on. The path from a contaminated fruit to a healthy one was not explored (in fact
mere contact seems insufficient; there would have to have been movement of liquid from one surface
to another, e.g. during washing). The problem in packing facilities was much more that fruits from an
uncertified source should accidentally be mixed with fru its for export, and exported (disinfection is of
no relevance to this). There was no scientific evidence that E. amylovora had spread to non-
contaminated fruits through packing/sorting lines.

Question 18: In the light of recent scientific de velopments and/or the new scientific evidence
presented by Japan, would you wish to modify your response to Question 30 from the Original
Panel proceedings, regarding the likelihood of bacteria on apple fruit surviving normal
commercial, shipping and export procedures?

6.109 Dr Geider stated E. amylovora cells on the fruit surface had a lo w chance to survive, when
brought into the fruit, they would most likely stay alive during normal commercial processing (see
also attached abstract).
6.110 Dr Hale noted that the only new evidence presented was the unpublished study of Tsukamoto
et al. (2005a) that suggests that E. amylovora could survive for up to six months in stored fruit after
artificial inoculation at cut pedicels. Inoculated fruit had been incubated for 9 days at 25 degrees
Celsius before being stored at 5 degrees Celsius until the E. amylovora isolations were carried out.
This situation did not simulate, in any way, the commercial conditions in which mature, symptomless
fruit, with no evidence of harbouring endophytic populations of E. amylovora , were cooled
immediately after harvest and cool stored immediately after packing. Any delays in cooling of apple
fruit after harvest could have a major impact on the storage life of cool stored fruit (Hardenberg et al.
(1986) – as suggested in the United States response to Question 9 from the Panel. In fact, Hale &
Taylor (1999) had showed that cool storage of mature, symptomless apple fruit reduced the survival
of E. amylovora in calyxes of both naturally infested and artificially infested fruit. Taylor & Hale
(2003) also had reported that, although E. amylovora had the ability, in nutrient media, to multiply at
low temperatures, populations of E. amylovora in the calyx tissue had declined with time spent in cold
storage.
6.111 Dr Hale commented that there was no scientific evidence presented that changed the response
to questions from the Original Panel proceeding relating to the likelihood of E. amylovora associated
with apple fruit surviving normal commercial shipping and export procedures.
6.112 Dr Hayward replied that Taylor and Hale (2003) ha d provided new evidence, to add to that
of Hale and Taylor (1999), that cool storage of mature, export quality apples in either the laboratory at
0 degrees +/- 0.5 degrees Celsius or a commercial pack house (2 degrees +/- 0.5 degrees Celsius)
reduced the survival of E. amylovora in calyxes of both inoculated and naturally infested fruit. The
new scientific evidence presented by Japan purport ed to show that there could be mature,
symptomless, latently infected fruit, but the occurre nce of such an entity under natural conditions was
unproven. The calyx of the fruit was the only known protected site for survival of residual low level
populations of the pathogen but these might have been eliminated during cold storage.
6.113 Dr Smith stated that it was no longer quite clear to him what was meant by "normal
commercial procedures" in this context, and whet her this involved any disinfection. But the new
evidence did not significantly cha nge the situation on survival of bacteria on fruit. The bacteria
survived a certain time but progressively died out, more quickly on the surf ace than when protected,
e.g. in the fruit calyx. The effect of temperature and of position in the fruit remained to be fully
explored.
Potential pathways for transmission of E. amylovora via apple fruit

Question 19: In paragraphs 30-31 of its second submission, referring to the Pathway Study
(Tsukamoto 2005b) Japan mentions that flies co ntaminated by bacteria in a beaker did not
directly become the source of infection. Ja pan then makes reference to the two major
discoveries of the study and concludes that the combination of infected apple fruit, flies and
suitable host plants pose a risk of completion of a pathway of the disease. Do you concur with
Japan's argument that this is the "logical" conclusion from the Pathway Study, and that this
identifies a scientifically probable risk? (See also Japan's reply to Question 19 of the Panel.)

6.114 Dr Geider stated that the proposed pathway needed a good inoculum source like oozing
apples exposed to flies, which then have to visit flow ers or young shoots of fire blight host plants. It
was almost impossible that inspected fruits would develop these heavy symptoms from fire blight and
flies would then spread the disease. The events might not practically occur and were scientifically
unlikely.
6.115 Dr Hale noted that it was difficult to concur with Japan's argument that from the results of the
experimental Pathway Study (Tsukamoto et al. 2005b) the "logical" conclusion was that the
combination of artificially infected apple fruit, flies, and suitable host plants poses a risk of
completion of the disease pathway.
6.116 Dr Hale noted that the experimental conditi ons imposed bore little resemblance to the real
world conditions likely to be found. The flies ha d been provided with no choice but to visit the
heavily infected apple fruit and it was quite understa ndable that, under the experimental conditions to
which they had been exposed, they co uld have become contaminated with E. amylovora from the
oozing apple. However, in a separate experiment, heavily contaminated flies had been then, again,
given no choice but to visit wounded susceptible pear and apple fruitlets and wounded shoots of pear
and apple. Again, under the no choice experiment al conditions imposed, it was understandable that
the flies had visited the wounded tissue in search of nutrients and moisture. It was important to note
that neither the apple fruitlets nor the apple shoots had become infected after visits from the heavily
infected flies. It was possible that the flies had not been attracted to the apple shoots and fruitlets.
6.117 Dr Hale noted that from the results of the Pathway Study (Tsukamoto et al. 2005b) it could
not be concluded that flies contaminated with E. amylovora from inoculated apples did, in fact, cause
infection in susceptible host tissues. This pathway had not been completed in the experiments. As
Japan admitted in its response to Question 19 fro m the Panel, "the issue of the probability of
completion of the pathway through infected apple fr uit has not been resolved by the experiment".
Consequently, there was no evidence of completion of a pathway of the disease even in the artificial
experimental conditions imposed in the study. Conclusions about how these conditions related to the
natural environmental situation, could only be conjecture.
6.118 Dr Hale highlighted that Miller & Schroth (1972) had shown that insects collected from a
blighted pear orchard carried E. amylovora and had been probably involved in secondary spread of
fire blight as they visited flowers in search of nectar. Taylor et al. (2003) had not found E. amylovora
contaminating trapped insects in a flowering orchard in which heavily infested mature apple fruit had
been discarded. Pollinating insects had been reporte d as major distributors of fire blight (Hildebrand
et al. 2000). However, these insects were unlikely to visit both infected fruit and susceptible plant
tissues such as blossoms.
6.119 Dr Hale noted that to date the available information could not be shown to support the
conclusion that there was a scientifically probable risk that a pathway could be completed.
6.120 Dr Hayward replied that the Pathway Study (Tsu kamoto II) had been carried out under
highly artificial laboratory conditions. E. amylovora was a bacterial pathogen which did not produce
resistant resting cells; the vegetative cells were subject to the effects of desiccation, and to the effects
of cyclical wetting/drying found in the natural e nvironment (which lead to deleterious changes in
water activity). UV irradiation and heat exposure and diurrnal temperature variation were other
adverse factors in the environment. There were also biotic factors involved including predation or
antagonism by other microorganisms. E. amylovora did not compete well with its saprophytic
relatives such as Erwinia herbicola (synonym: Pantoea agglomerans) which occurred commonly as
secondary invaders in moribund plant tissue. Insect species had characteristic patterns of behaviour,
substrate and host preference. The Tsukamoto II experiments eliminated all of the critical factors of

the natural environment. In view of the artific iality of the experiment he could not accept the
logicality of the conclusion that the pathway ap ple fruit, flies, suitable host plants had been
established.
6.121 Dr Hayward further noted that there was a very extensive literature on the role of insects in
secondary dissemination of fire bli ght from cankers to flower bl ossoms (Thomson, 2000; Schroth et
al. 1974).
6.122 Dr Smith commented that it was interesting to note that the mention of Japan ("that flies
contaminated by bacteria in a beaker did not directly become the source of infection") was not directly
supported by the reported results of the Pathway Stud y. There was no record in the Study that this
possibility had been investigated. One would certainly have expected this experiment to have been
done (and the reply to Question 19 suggested that it was, though it was not reported). In any case, the
lack of such a result much weak ened the claim that a pathway had been demonstrated. The two
discoveries were indeed new, but the results obtaine d were not altogether surprising. By suitable
adjustment of bacterial numbers, time of exposure, containers, etc., it was possible to recover bacteria
from flies which had been in contact with an infected fruit, and to transfer bacteria from a deliberately
contaminated insect to wounded fruits. These results we re what might be expected in the early stage
of an investigation which should go on to investig ate conditions more closely corresponding to those
of the hypothetical pathway.
Question 20: Do you concur with Japan's conten tion that the conditions to which the flies
were subjected to in the Tsukamo to study (2005b) relate to "pla usible ecological conditions"
(see paras. 32-33 of Japan's second written submission, Japan's reply to Question 18 of the
Panel and US comments on Japan's reply). Please explain.

6.123 Dr Geider stressed that it was a theoretical situati on and that even without phytosanitary fire
blight inspections in Germany, he had never seen an apple with fire blight symptoms in a local fruit
shop.
6.124 Dr Hale noted that the experimental conditions to which the flies had been subjected in the
Pathway study (Tsukamoto et al. 2005b) did not bear any relationship to "plausible ecological
conditions". (See also response to Question 19 of the Panel above).
6.125 Dr Hayward replied that he could not agree that the Tsukamoto II experiments were carried
out under "plausible ecological conditions" for the re asons given in the response to Question 19. In
the natural environment many biotic and abiotic fact ors interacted which would affect the survival of
the bacterial pathogen and the behaviour of the in sects. Because of the wide and random spatial
separation of the hypothetical oozing apple, flies and suitable host plants, there was time for the biotic
and abiotic factors to exert their effects. Th e Tsukamoto II experiments eliminated the spatial
separation of the elements but forced them together.
6.126 Dr Smith noted that the conditions used were not "plausible" because they did not allow at all
for the natural behaviour of the insects, which were put in a no-choice situation. They might just as
well have been dead insects, shaken in the respective containers w ith the fruits. More plausible
conditions could have been devised, even within a cage in a quarantine facility, allowing the insects to
choose to feed on the infected fruits and to choose to settle on the healthy ones.
Question 21: Do you concur with the US and New Zealand's statements regarding flies as
possible vectors for the spread of fire blight (p aras. 23-25 of US second submission; paras. 50-54
of New Zealand third party submission, New Zealand's replies to Question 4 of the Panel and
Question 3 of Japan, and US comments on Japan's reply to Question 19 of the Panel)? Please
comment on the article by Taylor et al. (2003) referenced in both submissions.

6.127 Dr Geider stated that it seemed reasonable to disti nguish the visiting behavior of fly species
(garbage/flowers). It was possible to establish an E. amylovora population with 10 CFU in a flower.
The bacteria could grow to a density exceedi ng 10 million CFU per flower provided favourable
climatic conditions and the absence of other bact eria to compete as antagonists in multiplication of
E. amylovora. Dense populations of E. amylovora would result in necrotic flowers.
6.128 Dr Hale noted that the Pathway Study (Tsukamoto et al. 2005b) did not provide convincing
scientific evidence that the flies used in the experiments were vectors for the spread of fire blight.
The experimental conditions to which the flies were subjected were far removed from natural
conditions. The situation relating to the possible transmission of E. amylovora from discarded,
infested, mature apple fruit to susceptible tissues, i. e. flowers and new shoots of host plants, had been
documented by Taylor et al. (2003). A number of insects, including flies, had been trapped in the
vicinity of susceptible host tissues. However, none of these had been contaminated with
E. amylovora from the infested, discarded, mature apples when highly sensitive molecular techniques
for detection in insect washings, including those from flies, had been used.
6.129 Dr Hayward agreed with the statements by New Zealand and the United States regarding
flies as possible vectors for the spread of fire blight.
6.130 Dr Hayward noted that the paper by Taylor et al. (2003) reported evidence of the viability,
persistence and possible spread of Erwinia amylovora in apples discarded in an orchard over a 20 day
period at flowering. They had used a strain of the pathogen selected for resistance to two antibiotics,
rifampicin and nalidixic acid; in this respect th eir methodology was similar to that used successfully
in many studies in soil microbiology and plant pa thology. The criticism could be made that the
doubly resistant mutants might be less fit for surviv al in the environment because of the physiological
"burden" of antibiotic resistance. He had not been able to find any evid ence in support of this
concept. He was not sure that there was an alternative method.
6.131 Dr Hayward further commented that Taylor et al. (2003) had showed that populations of the
mutant declined in the calyx of inoculated appl e fruit discarded in the orchard and they had been
unable to recover the mutant from insects trapped in the orchard, or find any evidence of transmission
from the calyx-infested apples to susceptible hosts . This was a good study which might serve as a
model for similar investigation in other countries where fire blight was endemic; one study was
probably not sufficient to give a definitive answer.
6.132 Dr Smith stated that as both the US and the New Zealand comments made clear, it was not
enough to work with any sort of "flies". The Japanese submission treated its Calliphorid experimental
flies on the same basis as Pegomya or Syrphids , which were quite different insects (though also
"flies", in that they are Diptera) with quite different feeding habits. Calliphorids have been reported to
feed on decaying vegetable matter, as well on the animal carcases on which they lay their eggs. It was
not at all clear that they would settle on, or feed on, relatively fresh fruits, on the ground or on the
tree, or whether E. amylovora would survive in fruits sufficiently decayed to attract Calliphorids.
Other lines of study could be envisaged, determinin g which insects were in the field attracted to
rotting apples, or were found around pear or apple fruits (cf. the results of Taylor et al., who caught
bees, muscid flies, ants, moths, aphids, mosquitoes , bumble bees and various beetles). Use of such
insects would much better satisfy the criteria of "p lausible ecological conditions", provided that the
experimental conditions allowed them some freedom to behave naturally. Relative to the present
study, the most significant result of Taylor et al. was that they were not able to recover the bacterium
at all, from any insect tested.
Question 22: Please comment on the probability estimates for long-distance dissemination of
E. amylovora presented in Kimura (2005) (Exhibit JPN-10). In your reply, please also comment

on paras. 26-32 of US second submission, paras. 56-62 of New Zealand's third party submission,
including the reference to Taylor et al. (2003) as well as on the US and Japan's replies to
Question 20 of the Panel.

6.133 Dr Geider stated that he had no objections to th e mathematics. Statistical considerations
depend on basic assumptions. Even Kimura et al. concluded there was a low probability to distribute
fire blight with fruits.
6.134 Dr Hale noted that evidence to date on long dist ance transmission of fire blight attached
significant importance to nursery stock, scions and buds as the likely causes of long distance
dissemination of the disease (Roberts et al. 1998). Despite this Kimura et al. (2005) estimated the
risk posed by the import of apple fruit to be si gnificantly greater than for the generally accepted
means of long distance dissemination. The corrige ndum to Exhibit JPN-10, supplied by Japan, did
not appear to alter the conclusions reached by Kimura et al. (2005). The probabilities estimated by
Kimura et al. (2005) appeared to rely heavily on the unpublished information in the Infection Study
(Azegami et al. (2005) and the Pathway Study (Tsukamoto et al. 2005a,b) that did not provide any
evidence that the pathway for disease, from infected fruit to susceptible host tissues, could be
completed under natural ecological conditions. The fact that Kimura et al. (2005) assumed that the
pathway could be completed by flies under natura l ecological conditions was not borne out by the
published information (Taylor et al. 2003) that insects did not become contaminated with
E. amylovora from infested fruit discarded in an orch ard when susceptible host tissue was in
abundance. Hale et al. (1996) had also reported that there was no detectable spread of E. amylovora
from heavily infested calyxes and fru it surfaces to blossom clusters, immature, or mature fruit. Taylor
et al. ( 2003a) also found that the population levels of E. amylovora required for infection of
susceptible host tissues under orchard conditions far exceeded the levels likely to be present in
infected apple calyxes at harvest and after cold storage.
6.135 Dr Hayward replied that Kimura et al. ( 2005) (Exhibit JPN-10) had concluded that the
probability of dissemination of E. amylovora via fruit was low but not negligible, in three scenarios
differing in stringency of inspection frequency and size of buffer zones. They had based their study in
part on the results and conclusions of Azegami I and II and Tsukamoto I and II. In view of the
artificiality of these experiments, as described a bove, he could not support th e change in probability
from negligible to low. Azegami II, a study in which the methodology and conclusions had not been
critically evaluated by an independent third party, claimed to show that infection could occur from an
injured fruit spur through the pedicel to the maturing fruit. There might be a window of opportunity
for a late infection event to occur if injury occurred to the spur ju st prior to completion of formation
of the abscission layer in the presence of available inoculum, but the probability of occurrence of such
a late infection event might be close zero.
6.136 Dr Hayward agreed with the statements in the US second submission and the New Zealand
third party submission on the Kimura study.
6.137 Dr Smith stated that the probability estimates of Kimura et al. (2005) were twofold. There
were those presented in section 2, which related to the probability that, from a single infected item
(rootstock, scion, or fruit) entering Japan, fire blight established in that country. These figures, for
fruit, were closely based on the r esults of the other New Studies. Then there were estimates made in
the discussion (section 3), based in addition on the probability that a single exported fruit had been
infected, as calculated by Roberts et al. (1998), adjusted according to Yamamura et al. (2001). The
three scenarios which had been comp ared in the latter case (as later indicated in Japan's corrected
sheet) related to three different types of measures applied to fruit orchards, and had nothing to do with
rootstocks or scions. The calculation of the latte r estimates was not presented in detail, so it was
difficult to make any judgements about it. To th e extent that the calculation took into account the
number of apple fruits shipped annually, and the probability of a fruit being infected, the figures

obtained were evidently of a different order fro m those for the likelihood of establishment from a
single infected fruit entering Japan. Since, as argue d elsewhere, the results of the other New Studies
were only of a preliminary nature, every probability estimate based on them was debatable. The text
made no allowance for the greater or lesser uncertain ty of these different estimates. It was indeed
desirable in PRA that an attempt should be made to estimate probabilities quantitatively. But the
uncertainty of these estimates was so high that it was misleading to combine them into an overall
probability estimate. In particular, the Pathwa y study provided no real basis for any quantitative
estimate of probability. It could only claim that the pathway was a possible one, whereas Taylor et al.
(2003), with completely negative results, lead to a b est estimate that the probability was zero. So the
argument returned to a yes/no qualitative basis.
Question 23: Is there any scientific evidence demo nstrating that crows or jungle crows serve
as vectors for the transmission of E. amylovora ? (See page 25 of Japan's September 2004 PRA
and para. 27 of US oral statement.)

6.138 Dr Geider commented that birds had been discussed as vectors to spread fire blight. In
particular, introduction of the disease to remote oases in Israel could have involved birds. There was
a report about survival of E. amylovora on the feet of birds. Long distance spread of fire blight by
birds seemed unlikely, because this flying vector wo uld have distributed the disease quickly all over a
country starting at narrow spots with fire blight. By experience, the disease had spread sequentially
from blighted orchards to other areas mainly by insects visiting flowers.
6.139 Dr Hale noted that there did not appear to be any scientific evidence that crows served as
vectors for the transmission of E. amylovora. There had been unsubstantiated reports that birds might
have been implicated in long-distance spread of fire blight in Europe (Meijneke 1974; Siedel et al.
1994 – cited in Thomson 2000). However, this evidence could only be considered to be
circumstantial.
6.140 Dr Hayward stated that he had been unable to find any evidence showing that crows or jungle
crows served as vectors for the transmission of E. amylovora. Billing and Berrie (2003) referred to
circumstantial evidence that migrant birds (star lings) might have served to spread the disease from
southern England to hawthorns on the continent in the mid-1960s.
6.141 Dr Smith stated that there was no evidence that crows themselves were vectors. Though they
might feed on discarded fruits, they did not behave in a way which would then transmit any acquired
bacteria to host trees. The argument that they scatterred garbage, making it accessible to other smaller
vectors (if any such exist), seemed reasonable. It was surprising that Japan had not rather drawn
attention to the possible role, presented by the PRA, of bulbuls and whiteyes, birds which were well
recognized in the ornithological literature to feed on fruit and to suck nectar from flowers. The PRA
asserted that these birds suck the nectar of fire b light host plants. He wondered if this was as
specifically known as it was written in the PRA. His impression from ornithological books was that
these birds feed on larger flowers. In any case, this particular pathway seemed to have the ecological
plausibility that some other suggested pathways lack, and might merit further investigation.
Question 24: In the light of the Pathway Study (Tsukamoto 2005b), would you modify your
reply to Questions 9 and/or 16 from the Original Panel proceedings regarding the completion of
the pathway?

6.142
 Dr Geider stated that the events were possible, but not realistic for fruit trade. Of course,
flies became contaminated crawling on blighted fruits. Pears, especially sliced, were very susceptible
to E. amylovora and developed symptoms with low amounts of bacteria. There was almost no chance
that the anticipated pathway will occur in orchards.

6.143 Dr Hale noted that there was no published scientif ic evidence to suggest that mature,
symptomless apple fruit could be infected with E. amylovora under natural conditions. The
unpublished data from the Pathway Study (Tsukamoto et al. 2005b) did not provide any scientific
evidence for the possible completion of the diseas e pathway. There was no published scientific
evidence to suggest that the path way for fire blight to infect susceptible host tissue from mature,
symptomless fruit could be completed. The only p ublished scientific evidence for contamination of
mature, symptomless fruit related to calyx infestation (Hale et al. 1987) and Taylor et al. (2003)
showed that there was a discontinuity in the pathway from infested fruit to susceptible host tissue, and
that the disease pathway was not completed under na tural environmental conditions. Finally there
was no reported evidence of mature, symptomless a pple fruit having ever been involved either in
dissemination of E. amylovora or in an outbreak of fire blight in a previously disease-free area.
6.144 Dr Hayward replied that there was no new scientific evidence which would persuade him to
change his responses to Questions 9 and 16 from the Original Panel proceedings.
6.145 Dr Smith commented that the situation has not chan ged from the Original Panel proceedings.
Studies had shown that trees did not become infected by spread from discarded fruits, under
reasonable experimental conditions. No study had sh own that such transfer occurred. Investigations
remained to be done on plausible vector species. In any case, it appeared that such transfer had to be
rare and difficult to demonstrate.
Japan's September 2004 Pest Risk Assessment

Question 25: How does Japan's September 2004 PRA compare with th e IPPC Pest Risk
Assessment standard of 2001 (attached)?

6.146 Dr Geider stated that he was not well acquainted with PRA considerations. Fire blight
seemed to be a one-hit event to become establis hed in a remote area, and a PRA might not be
applicable. All proposed measurements might decrease the risk further, but other events besides
official plant or fruit trade might be a more seri ous risk. Once established, it was very difficult to
interfere with sequential spread of fire blight to adjacent areas.
6.147 Dr Hale noted that the contents table of the IPPC Pest Risk Analysis for Quarantine Pests
standard of 2001 was identical to that of the St andards for Phytosanitary Measures – Pest Risk
Analysis for Quarantine Pests, Including Analysis of Environmental Risks and Living Modified
Organisms (ISPM 11) produced by IPPC in 2004. It was on the basis of this standard that the Japan
"Pest Risk Analysis Concerning Fire Blight Pathogen ( Erwinia amylovora) – Fresh Apples Produced
in the United States of America – September 2004" had been prepared.
6.148 Dr Hale noted that the Japan PRA had been revi sed to take into account the identification and
biology of E. amylovora, and Japan's views on the identification of a possible pathway for entry into
and establishment of E. amylovora in Japan, the economic consequences to Japan, and a review of
measures against E. amylovora related to apples from the United States. The PRA discussed the
probability of fire blight being associated with the pathway at origin, the probability of survival of the
pathogen during storage and transport, and the probabilit y of transfer to a suitable host. However, the
PRA was based on the assumptions that the export commodity is mature, sy mptomless apples that
were latently infected with E. amylovora, that decayed or damaged fruit harboured E. amylovora, that
the pathogen survived in latently infected fruit, and that a disease pathway from mature, symptomless,
latently infected apples actually existed. The ev idence presented to justify these assumptions was, as
yet, unpublished, and was not considered to be convincing scientific evidence as neither latent
infection, nor the suggested pathway involving decaying fruit, and transfer from this fruit to
susceptible hosts had ever been completed under natural environmental conditions. It should be noted
that there was little information on fruit rots in mature apples being caused by E. amylovora. With all

the research on fire blight internationally over many years, if rots in mature fruit had been of any
significance then it was certain that it would have b een documented. There we re many other causes
of rots in mature apples and E. amylovora did not survive well in the presence of other
microorganisms.
6.149 Dr Hale noted that the probability of establishment of E. amylovora in Japan and the
probability of spread of fire blight after establis hment were discussed in detail, as required for the
PRA. However, the relevance of these details wa s questionable as there was no convincing scientific
evidence that latently-infected, mature, symptomles s apples existed, would be exported, or that the
pathway for spread would be completed. Con sequently, although Japan had followed the IPPC
guidelines for preparing the PRA, it unjustifiably assumed both the existence of mature, symptomless,
latently-infected apples as the commodity at issue, and the presence of an unsubstantiated pathway for
introduction, establishment, and spread of the disease.
6.150 Dr Hayward commented that the IPPC document he had was ISPM No. 11, Pest Risk
Analysis for Quarantine Pests, Including Analysis of Environmental Risks and Living Modified
Organisms, dated April 2004. He further noted that Japan's September 2004 PRA (66 pages, 130
references cited) was a very thorough and valu able compilation of information from Japanese and
international sources, generally complete and up to date. The relevant paper by Taylor and Hale
("Cold storage affects survival and growth of Erwinia amylovora in the calyx of apple" Letters in
Applied Microbiology 37: 340-343, 2003) was not th ere. The paper by Taylor, Hale, Gunson and
Marshall (2003) published in Crop Protection was very similar work to that of Taylor, Hale and
Marshall in Acta Horticulturae 590: 153-156, 2003. Bo th papers were cited in the revised PRA. The
centre paragraph on p.29 of the revised PRA was a fair comment on these two studies and in accord
with his response to Question 21 (last sentence). The format of the revised PRA followed that of
ISPM 11 closely.
6.151 Dr Smith stated that the September 2004 PRA followed ISPM no 11 much more closely than
the earlier PRAs. In particular, pathways were evaluated separately and in detail, and so were
measures in the pest risk management. The possi bilities for use of the measures individually or in
combination were considered. The evaluation of pathways did not, however, sufficiently consider
how large an inoculum of E. amylovora was carried by the apple. Even if a pathway could be
completed, it would not function if the inoculum wa s too small (this point related particularly to the
possibility that fruits becoming contaminated by tran sfer from crates, facilities, etc). In a few minor
ways, the PRA did not quite correspond to the Standard . In particular, the rather full account of the
disease which appeared under Initiation was not stric tly needed at that point. Such an account
belonged either in an introduction, or else relevant elements from it should be cited in the risk
assessment. The PRA did not consider all possible pa thways. Strictly speaking, if another pathway
(such as plants for planting) was left open, the validity of the measures and the consistency of
protection could be called into qu estion (cf. Salmon case). Certainly, this pathway was not open in
the present case, but it was necessary to make this clear: see Section 2.2 of the ISPM, end of first
paragraph: "The probabilities for pest entry associated with other pathways need to be investigated as
well.". Also, the stage of risk assessment called "P est categorization" (section 2.1) was not explicitly
addressed (but could be considered superfluous). In general, it seemed desirable that PRAs should
follow fairly closely the structure of ISPM no 11, ma king it much simpler to justify that the Standard
had been followed.
Question 26: In light of the conclusions of the new scientific studies presented by Japan, does
Japan's September 2004 PRA identify various option s for reducing risks? Does it evaluate the
efficacy and impact of these options in reducing risk to an acceptable level? In your reply,
please also comment on Tables 7, 8 and 9 on pages 54 and 57 of the September 2004 PRA.

6.152 Dr Geider stated that some of the proposed precautions seemed to be reasonable, others
might put a heavy impact on fruit trade. As said above, global activities in trade and tourism might
surpass the risk of very low probability to introduce fire blight with fruits.
6.153 Dr Hale noted that the September 2004 PRA identified a number of measures for the
reduction of risks identified as a result of the c onclusions reached by the authors from the studies
presented by Japan. These included options to prevent entry of E. amylovora via internally infected
mature fruit from severely infected orchards, infect ed immature fruit, and infected wounded/decayed
fruit. The efficacy and impact of each of these opti ons for reducing risks to an acceptable level were
evaluated and discussed in detail and the effectiv eness of the suggested options for phytosanitary
measures against the identified pathways were pr esented in Tables 7 and 9 of the PRA, and the
difficulties associated with the implementation of th e options analysed in Table 8. However, the
options and measures suggested did not take in to account the overwhelming published scientific
evidence that there was no proven pathwa y for the long distance transmission of E. amylovora, and
hence the spread of fire blight, by mature, symptomless apple fruit, that was the commodity at issue in
this dispute. Infected, immature apple fruit woul d not be exported as the fruit was likely to be
shrivelled and unmarketable and, if harvested, would be eliminated before packing as a result of the
rigorous sorting procedures employed commercially. Mature fruit that had decayed as a result of
infection with E. amylovora had not been reported – fruit rots were far more likely to be caused by
numerous other pathogens including fungi, other bacteria, etc.
6.154 Dr Hayward replied that he had difficulty in accep ting section 3-2 of the PRA "Options for
phytosanitary measures against Erwinia amylovora related to US apple" pp. 47-59. The conclusions
depended upon the studies of Azegami I and II, and Tsukamoto I and II, purporting to demonstrate the
existence of "mature, symptomless, latently infected" fruit; for reas ons given earlier the existence of
such entities was unproven. Submissions from the Unite d States attested to the thoroughness of the
screening of harvested apples and the improbability th at an immature apple would pass screening.
There was a theoretical possibility of a late stage in fection event ( cf. responses to questions 3d, 4 and
15, last para), the probability of this occurring might be somewhere between negligible and zero.
Even if mature, symptomless, latently infected fruit exist (which was unproven), and if there were
immature fruit passing screening, which was highly un likely, these hypothetical entities had to be
subjected to cold storage which was inimical to the pest (Erwinia amylovora).
6.155 Dr Hayward did not accept that the work of Tsukamoto II demonstrated completion of the
pathway, transmission from discarded fruit by insects (or by birds or through the agency of wind and
rain) to a healthy host plant because of the artificiality of the in vitro studies.
6.156 Dr Hayward noted that it was extremely difficu lt to find evidence in the literature of
completion of the pathway imported infected/infested fruit to a healthy host, even in the case of
another bacterial disease, citrus canker, where infection of the fruit surface was well known and
commonplace. This was not to suggest that citrus canker and fire blight were closely similar in
epidemiology; they were not. Nevertheless outbr eaks of citrus canker had been associated with
budwood not with movement of fruit even though la rge quantities of infected fruit had been moved
around the world for decades.
6.157
 Dr Hayward commented that Tables 7, 8 and 9 represented a reasonable and logical approach,
including examination of the economic feasibility of the different risk management options, as
required by ISPM 11, but the conclusions c ould not be accepted because of the underlying
assumptions based on Azegami I and II and Tsukamoto I and II.
6.158 Dr Smith noted that broadly, the evaluation was done correctly. Problems arose,
nevertheless. First, the justification of the measu res lays in the real probability that the pathways
carried the bacterium as suggested. The focus of the measures was now on "internally infected

mature fruit", although the existence of this category was still scientifically disputed. It was also on
"Infected immature fruit" and "Infected wounded or decayed fruit". Assuring that the orchard was not
infected was certainly one way of reducing these last two risks, but there were surely other measures
which could be used, and which woul d have to be considered if the "internally infected mature fruit"
category was dismissed. Secondly, all the arguments in the PRA tended to show that bacteria on the
surface of the fruit were not important (in contrast to the discussion during the Original Panel
proceedings). Yet, the disinfection measures were ma intained (they were considered "not effective"
or "not applicable" in Tables 7-9).
Question 27: If less than 5 per cent of a shipment of apple fruit is damaged, and such a
shipment may contain infected/infested apples, is there any scientific evidence that this would
result in apple fruit from that shipment providing a pathway for the introduction, establishment
and spread of fire blight in Japan (pages 22-23 of September 2004 PRA).

6.159 Dr Geider stated that the events, which had establis hed fire blight in Europe or in New
Zealand, were hidden. The dominant or only source for spread of fire blight seemed to be
introduction by trade with infested host plants. It was unrealistic to assume a shipment of apples,
where 5 per cent of fruits were heavily contaminated with E. amylovora . European pears ( Pyrus
communis) had a tendency to rot quickly, in contrast to Asian (Nashi) pears ( P. pyrifolia ). Rot in
apple tissue was often localized. Still, E. amylovora had to be proven as the agent causing the rot by a
careful analysis of the bacterial and even f ungal populations of fruits with symptoms. Most
important, E. amylovora had a low capacity to survive in a "hostile " environment. In necrotic tissue,
it would be soon replaced by other bacteria, such as soft-rot Erwinias and Erwinia herbicola (syn.
Pantoea agglomerans). He did not know about publications describing the bacterial populations in
rotten apple tissue. From leaf spots caused by P. syringae, a continued change of bacterial species in
the necrotic leaf area had been described. A ge neral statement about "blighted fruits" as a major
source for E. amylovora seemed to be risky from a judgment of damaged pears or apples. Papers,
which deduced an infection by fire blight from the appearance of fruits, could deal with false
interpretations. Rottenness and even ooze could be produced by many microorganisms. In agreement
with Dueck (1974), E. amylovora could not be readily detected in symptomless fruit, even when
harvested from naturally infected trees.
6.160 Dr Hale noted that as discussed in the September 2004 PRA, no inspection process was likely
to detect E. amylovora associated with fruit. However, it was to be assumed that inspection
procedures for other diseases were considered to be adequate by importing countries, providing a
95 per cent confidence level that almost all fruit are fr ee from damage. To his knowledge there was
no scientific evidence to suggest that mature, symp tomless apples from a shipment with any damaged
fruit would contain apples infected with E. amylovora that would provide a pathway for, or have ever
been involved in the introduction, establishment, and spread of fire blight. In fact, there were no
specific pathways recorded that document movement of E. amylovora from fruit, either imported or
domestic in origin, to susceptible host tissues (Roberts
et al. 1998; Taylor et al. 2003).
6.161 Dr Hayward replied that he could not find any evid ence that the circumstances in Question
27 above would provide a pathway for the introduction, establishment and spread of fire blight in
Japan.
6.162 Dr Smith replied that it was not likely that E. amylovora would multiply or spread in store or
transit (provided that the apples remain under prope r storage conditions). All that could happen was
that small numbers of bacteria might be transferre d from the surface of apples carrying a few bacteria
to others which did not do so originally. This did not create a new pathway. If "internally infected
mature fruits" were present (the existence of such fruits being in any case disputed), there was no
pathway for these internal bacteria to infect other apples. In any case, the export phytosanitary
inspection was not the only check that consignments did not contain damaged fruits.

Conclusion

6.163 Dr Geider concluded that the primary events estab lishing fire blight in New Zealand, in
Europe and the Mediterranean region could not be recr eated. By the analysis of PFGE pattern of the
isolated strains, it could be concluded that fire bli ght originated from one or very few introductions of
the disease. In contrast to the North American divergent PFGE pattern types European and
Mediterranean E. amylovora strains were quite related in the restriction fragments obtained in an XbaI
digest. A change of one or two DNA fragments indicate allowed diversity of the highly related
E. amylovora genomes from isolates in these countries. The divergence could have been derived from
evolution of a single E. amylovora strain. In New Zealand, only pattern type Pt1 was found. From
Egypt fire blight had moved by sequential spread to the neighbouring countries of north-east, to
Turkey, the Balkans and Iran. All strains from thes e countries carried pattern type Pt2 except a few
strains from Israel and Bulgaria with the unusual patte rn type Pt5. From England, spread to Central
Europe (pattern type Pt1) and Western France (pa ttern type Pt 4) was observed. Pt3 could have
developed in Belgium/Northern France and had been transmitted to Northern Italy and Central Spain
most likely by import of infested plants to nurseries. In Northern Italy, no fire blight symptoms had
been found in the suspicious nursery at the time of the first outbreaks. Pt1 in Germany, Poland,
Austria, Switzerland and Eastern France was another example of sequential spread. Fruit trade in
Europe was not restricted by quarantine measures concerning fire blight. Nevertheless, the PFGE
pattern types seemed to be undisturbed. In summa ry, a novel establishment of fire blight was very
rare in spite of many human and environmental act ivities that were assumed to favour long distance
spread of the disease including the trade issues discussed here. May be, the parties could find
compromises about trade restrictions. It should be emphasized that with or without trade restrictions,
there was a permanent threat to establish fire blig ht in a remote clean area by many unpredictable
events of daily life.
VII. INTERIM REVIEW
A.
INTRODUCTION
7.1 On 24 March 2005, Japan and the United States re quested the Panel to review, in accordance
with Article 15.2 of the DSU, precise aspects of the interim report that had been issued to the parties
on 10 March 2005. Neither Japan nor the United Stat es requested a further meeting with the Panel.
On 31 March 2005, in accordance with our timetable, both parties submitted comments on each
other's communications of 24 March 2005.
7.2 What follows is a discussion of the arguments made at the interim review stage, in application
of Article 15.3 of the DSU.
7.3 The Panel has modified aspects of its report in light of the parties' comments where it
considered it appropriate, as explained below. Consequently, the findings of the Panel have to be read
in conjunction with this section.
7.4 The Panel has also made certain editorial modifi cations either at the suggestion of the parties
or of its own initiative for the purpose of clarity and accuracy.
7.5 References to paragraph numbers relate to those in this final report.
B. O
RIGINAL COMMENTS OF THE UNITED STATES AND COMMENTS BY JAPAN ON THE UNITED
STATES' ORIGINAL COMMENTS
7.6 The United States has requested us to modify the description of the nature of Japan's
Operational Criteria made in the second sentence of paragraph 8.19 in order to match the description

in paragraph 8.25, which the United States consider s reflects more accurately the nature of the
Operational Criteria. The United States considers th at the Operational Criteria implement rather than
interpret Japan's legislation.
7.7 The Panel agrees that, stricto sensu , the Operational Criteria may not be "interpretations",
even though they clarify how the authorities of Japan actually intend to implement the Detailed Rules.
However, in the absence of evidence to the contrary, they are an o fficial document issued by the
Government of Japan. As a result, the Pane l only deems it necessary to replace the term
"interpretation" with the more general term "state ment", since what ultimately matters is that the
United States and the Panel can "rely" upon the Opera tional Criteria as an official statement by Japan
of the way the Detailed Rules are applied.
7.8 The Panel further considers it appropriate to modify paragraph 8.25 so that it better
corresponds to the terms used in the second sentence of paragraph 8.19.
7.9 Having regard also to paragraphs 8.76 and 8.119, the United States requests the Panel to
clarify in paragraph 8.89 that, in light of its an alysis, Japan's requirement of orchard designation,
including its limitation of eligible orchards to those in the states of Washington and Oregon, and
Japan's requirement that export orchards be free of plants infected with fire blight, are also not
supported by sufficient scientific evidence.
7.10 Japan objects to this suggestion inter alia because there is no "measure" limiting production
sites to those located in the states of Oregon and Washington. The restriction is related to the fact that
the United States has not provided documentation re garding quarantine pests and diseases other than
fire blight in other states. Japan refers to the find ings of the Original Panel in this respect, claiming
that the situation has not changed.146
7.11 The comments of the United States in relation to paragraph 8.89 actually raise two issues.
The first one relates to the question whether a findi ng is necessary regarding the fact that currently
only orchards in the states of Oregon and Washington are eligible for designation as fire blight-free
for purposes of exports to Japan. It is correct that our findings in the interim report did not expressly
address that question. This is because we did not deem it necessary for two reasons.
(a) First, we recall that Japan stated that the exclusion of states other than Washington
and Oregon was because the United States has not provided documentation regarding
quarantine pests and diseases other than fire blight in relation to other states. We
agree with Japan that if apples from stat es other than Oregon and Washington cannot
be exported because the United States failed to comply with phytosanitary
requirements relating to diseases other than fire blight, the fact that those apples may
be free of fire blight will not make them exportable to Japan. Neither before this
Panel nor before the Original Panel, di d the United States demonstrate that Japan
imposes measures relating to fire blight in relation to other quarantine pests or
diseases. Since the restriction primarily relates to other pests or diseases, we see no
reason to make a finding on it. However, fo r the sake of transparency, we clarify this
aspect in a footnote to paragraph 8.89.
(b) Second, even if we were to assume that the restriction relates to fire blight, our
finding in paragraph 8.89 is that the require ment that each orchard be designated as
fire blight-free is not supported by suffici ent scientific evidence within the meaning
of Article 2.2 of the SPS Agreement. Our understanding of the relevant facts is that
the exclusion of states other than Oregon and Washington is not a specific

146 Panel Report on Japan – Apples, para. 7.25.

requirement but a factual consequence of the designation process. Indeed, Japan has
repeatedly stated that it could designate orchards in other states provided the
necessary information is given by the US authorities.
7.12 Finally, even if the exclusion of other stat es constituted a measure, since designation as such
is not scientifically justified, exclusions resulting from the existence of a designation process are also
not justified. No finding would be required in that case either.
7.13 The second issue raised by the United States in relation to paragraph 8.89 is that the US
comments reveal that our conclusions were probably not spelled out clearly enough. This is why we
modified the last sentence of paragraph 8.89.
C. O
RIGINAL COMMENTS BY JAPAN AND COMMENTS OF THE UNITED STATES ON THE ORIGINAL
COMMENTS BY JAPAN
7.14 Japan has requested that we delete paragraph 8. 90, raising an argument regarding other plant
diseases, including citrus cankers.
7.15 Paragraph 8.90 was designed to clarify that or chard inspection may be justified in other
circumstances than those relating to fire blight. Si nce it does not refer to any specific disease, we see
no reason to delete that paragraph.
7.16 Japan also suggests that we delete our refere nce to human health in paragraph 8.96 because
this case is not about human health . We agree that fire blight does not threaten human health.
However, we simply referred to a statement by one of the experts.
7.17 Japan has also requested that we modify paragraph 8.187. Japan considers that the measure at
issue is not the main reason why US apple grower s have ceased to export ap ples since 2002. Japan
argues that the insignificant demand for US apples r esults from the appearance, taste and quality of
the exported apples.
7.18 The United States argues that this is a tota lly new argument on which it was not given an
opportunity to comment and which, in any event, is not factually supported.
7.19 We note that, on the one hand, it is generally admitted that consumer demand in the context of
a market access restriction cannot be a reliable factor to assess actual demand, to the extent that it is
influenced by the availability (or lack ther eof) of the restricted product on the market. 147 On the other
hand, the United States has argued that the main re ason why exports did not take place were the costs
and commercial risks attached to the co mpliance with Japan's measure at issue. 148 Japan has argued
that the potential benefits for US exporters of participating in the expor t programme under Japan's
current import regime outweigh the expected costs and risks,149 thus implicitly acknowledging that the
exported apples will find clients to buy them at a re munerative price. This argument does not support
Japan's position at the interim review stage that Jap anese consumers are not attracted to US apples.
Furthermore, the fact that the costs of inspection are ultimately bo rne by the US exporters rather than
by the US Government confirms the argument of the United States that the measure at issue is
burdensome and costly for US exporters. We see no reason to modify our findings in this respect.
7.20 Finally, Japan makes comments of a much less specific nature in relation to our findings
under Article 2.2.

147 See also GATT Panel Report on Japan – Leather II (US), paras. 51-55.
148 United States reply to additional questions of the Panel, 25 January 2005.
149 Japan comments on the United States' answer to additional questions of the Panel, 1 February 2005.

7.21 We recall that, pursuant to Article 15.2 of the DSU, a party may request the Panel "to review
precise aspects of the interim report". We recall that a previous panel confronted with interim review
comments questioning large sections of the interim report refused to address comments which did not
relate to precise aspects of the interim report.
150 We note that Japan's comments regarding our finding
under Article 2.2 of the SPS Agreement do not identify specific paragraphs that should be modified.
7.22 On the contrary, Japan argues first that the Panel's findings can only be valid if exported
apples are indeed mature and symptomless. In this regard, Japan requests the Panel to examine
whether the United States may actually export only mature, symptomless apples pursuant to its own
legislation. We note that the question whether th e United States exports mature, symptomless apples
pursuant to its own legislation is discussed in our findings under Article 5.6 of the SPS Agreement.
Japan does not request us to review precise aspects of the section of our interim report relating to
Article 5.6 of the SPS Agreement. In particular, we note that neither during the proceeding, nor at the
interim review stage, did Japan provide evidence th at the United States ever exported to Japan apples
that were contaminated with E. amylovora. Nor did Japan submit convincing evidence that the US
quality control process contains flaws susceptible to lead to the exportation of apples contaminated
with E. amylovora in the future. We also note that the Or iginal Panel already discussed the possibility
of human errors.151
7.23 Second, Japan seems to suggest that we address at this stage the process of verification that
exported apples are mature and symptomless. We la rgely agree with the Unit ed States that Japan's
suggestion amounts to re-arguing the validity of th e measure at issue as a whole from a different
angle, by presenting the elements of the measur e at issue as a "production process control" necessary
to verify that the exported product is mature, symptomless apples. We believe that the interim review
is not the appropriate stage for rearguing the case on new grounds.
7.24 For these reasons, we are of the view that we should not address Japan's comments which do
not relate to specific paragraphs of our findings, since Japan failed to comply with the requirements of
Article 15.2 of the DSU in this respect.
7.25 Even if we were to consider those arguments, and even if we were to agree with Japan that we
should look at the measure from the angle it suggests, this would not affect our findings that most
elements of the measure at issue are maintained without sufficient scientific evidence, within the
meaning of Article 2.2 of the SPS Agreement.
7.26 We note that Japan relies on a statement made by Dr Smith in the course of our hearing of the
experts.
152 However, what Dr Smith said in the paragraph quoted by Japan was limited to a
requirement that orchards be blight-free. He did no t address other aspects of the measure at issue. In
addition, we did not quote Dr Smith's statement in the context of our analysis under Article 2.2
because, in this statement, Dr Smith explicitly avoi ds claims that his opinion is based on scientific
evidence. Rather, he acknowledg es that "I don't know whether I have produced a scientific argument
or if that is a technical argument."
7.27 Dr Smith's statement referred to by Japan does not affect our conclusion in paragraph 8.89
that available scientific evidence does not support the view that mature, symptomless apples harvested
from blighted orchards, whether severely blighted or not, would harbour populations of E. amylovora
capable of spreading fire blight disease.

150 Panel Report on Australia – Salmon, para. 7.3.
151 See, e.g., Panel Report on Japan – Apples, paras. 8.158-8.161.
152 Dr Smith, Transcript, para. 135.

7.28 At best, Dr Smith's suggestion could represent an alternative to Japan's current measure
within the meaning of Article 5.6 of the SPS Agre ement. We recall, however, that Japan does not
refer to Dr Smith in relation to our findings unde r Article 5.6, but in relation to our findings under
Article 2.2 of the SPS Agreement. Moreover, Japan never argued this point during the proceeding in
relation to Article 5.6 and it is not for us to make a case for Japan. We recall in this respect that the
United States proposed an alternative measure to the measure at issue, which we considered.
7.29 We note that the experts consulted by the Panel acknowledged that verification through
samples may not give full certainty that only mature, symptomless apples will be exported. We
nonetheless recall that there was not sufficient scien tific evidence that apple fruit can complete the
pathway for fire blight.
7.30 As a result, even if we were to admit Japan's comments regarding our findings under
Article 2.2 of the SPS Agreement, we would see no reason to modify those findings.
7.31 We also took into account the relevant editorial suggestions made by Japan.
VIII. FINDINGS
A. I
NTRODUCTORY REMARKS
8.1 The United States claims that Japan has failed to implement the Dispute Settlement Body's
(DSB) recommendations and rulings by failing to br ing its phytosanitary measures on imported US
apples, which restrict the import of such apples in connection with fire blight and the fire blight
disease-causing organism, Erwinia amylovora , into compliance with its obligations under the
Agreement on Sanitary and Phytosanitary Measures (SPS Agreement).153
8.2 The United States claims in substance that Jap an's phytosanitary measu res at issue are not
compatible with Articles 2.2, 5.1 and 5.6 of the SPS Agreement, as well as with Articles 4.2 of the
Agreement on Agriculture and Article XI of GATT 1994.
8.3 As a preliminary remark, we recall that Articles 2.2, 5.1 and 5.6 of the SPS Agreement are
interrelated and that our findings under one of these provisions would be of relevance to our findings
on the others.
8.4 We would also like to stress that the role of a panel under Article 21.5 of the DSU is, like that
of the Original Panel, limited to finding whether the party concerned failed to comply with its WTO
obligations. A panel may legitimately restrict its fi ndings to what is strictly necessary to determine
whether the measure at issue is in breach of the Member's WTO obligations. 154 It is for the party
found in breach of its obligations to make all the appr opriate changes to bring its legislation fully into
conformity with its obligations. However, we ar e mindful of the specific nature of Article 21.5
proceedings, which come after the party found in breach of its obligations in the original proceeding
has been given a reasonable period of time to bri ng its legislation into conformity and should have
normally taken measures to comply with the DSB recommendations and rulings.
8.5 Specific circumstances of non-compliance may dictate that an Article 21.5 panel should make
more exhaustive findings than the Original Panel so as to assist the party concerned. We recall in this
respect the comment of the Appellate Body in Australia – Salmon:

153 WT/DS245/11.
154 See Appellate Body Report on US – Wool Shirts and Blouses, pp. 339-340.

"[The aim of the dispute settlement system] is to resolve the matter at issue and 'to
secure a positive solution to a dispute'. To provide only a partial resolution of the
matter at issue would be false judicial economy. A panel has to address those claims
on which a finding is necessary in order to enable the DSB to make sufficiently
precise recommendations and rulings so as to allow for prompt compliance by a
Member with those recommendations and rulings 'in order to ensure effective
resolution of disputes to the benefit of all Members.'"
155
8.6 We do not believe that the Original Panel only provided a "partial resolution of the matter".
We recall, however, that the United States requests that we treat the phytosanitary requirements at
issue as several measures and make findings on the le gality of each of them. Japan, while holding to
the view that each requirement is part of a "syste m", also requests us to make specific findings on
each element of its revised measure. Under these circ umstances, we agree with the parties and decide,
as we are entitled to, not to exercise judicial economy 156 whenever we believe that making a specific
finding would facilitate prompt and full compliance by Japan at this stage.
8.7 In addition, the United States argues that the "Operational Criteria", i.e. administrative
instructions which Japan claims to apply as part of the actions it took to comply, are not within the
terms of reference of the Panel. The United States made a request for a preliminary ruling of the
Panel on this issue. We address this matter as part of our discussion of the scope of the measure taken
to comply.
8.8 Other issues of a procedural nature are addressed where necessary, as part of the discussion
on substantive provisions.
B. T
HE "MEASURE(S) TAKEN TO COMPLY"
1. Japan's legislation
(a) The legislation
8.9 The phytosanitary requirements subject to this recourse by the United States to Article 21.5 of
the DSU are based on the following legislation:
(a) Plant Protection Law No. 151 enacted on 4 May 1950 (and specifically Article 7
thereof);
(b) Plant Protection Law Enforcement Regula tions enacted on 30 June 1950 (and
specifically Article 9 and Annexed table 2 thereof);
(c) Ministry of Agriculture, Forestry and Fisheries (MAFF) Notification No. 354 dated
10 March 1997; and
(d) MAFF Administrative Directive, "Detailed Rules for Plant Quarantine Enforcement
Regulation Concerning Fresh Fruit of A pple Produced in the United States of
America " dated 30 June 2004 ("Detailed Rules"), amending the MAFF "Detailed
Rules for Plant Quarantine Enforcement Re gulation Concerning Fresh Fruit of Apple
Produced in the United States of America" dated 29 January 2002.

155 Appellate Body Report on Australia – Salmon, para. 223 (footnotes omitted).
156 See Appellate Body Report on US – Lead and Bismuth II, paras. 71 and 73.

(e) In addition, Japan claims to implement the Detailed Rules through administrative
instructions called "Operational Criteria". As mentioned above, the United States
claims that the Operational Criteria are not part of our mandate. We address this
claim hereafter.
(b) Treatment of the "Operational Criteria" by the Panel
(i) Introduction
8.10 On 27 September 2004, the United States requested that the Panel issue a preliminary ruling
to the effect that Japan's Operational Criteria were not a measure taken to comply within the meaning
of Article 21.5 of the DSU and were therefore not within the terms of reference of this proceeding. In
addition, the United States requested that the Pa nel not consider the Operational Criteria in
determining whether Japan's measures taken to co mply with the DSB's recommendations and rulings
were consistent with Japan's WTO obligations.
8.11 On 7 October 2004, we invited Japan to comme nt on the US request in its written rebuttals,
which Japan did. On 22 October, we informed the parties of the following:
"Having considered the views expressed by both parties, and without prejudice to
those views, the Panel concludes that it would be more appropriate to address the
issues raised by the United States in the context of its overall review of Japan's
compliance or otherwise with the covered ag reements referred to in the Panel's terms
of reference. As a result, parties should feel free to further express views on the
Operational Criteria in the course of the coming substantive hearing, if they so wish."
8.12 Parties subsequently argued the matter during the substantive meeting with the Panel.
(ii) Summary of the arguments of the parties
157
8.13 According to the United States, the DSU does not give authority to a panel to make "advisory
rulings" on a proposed or potential future measure. The Operational Criteria had not been "taken to
comply with the recommendations and rulings of the DSB" by the time of the establishment of the
Panel and so could not be within the Panel's terms of reference. Jap an had not notified them to the
WTO, nor had Japan referred to them in its 29 July request for arbitration under Article 22.6 of the
DSU or its 30 July statement to the DSB. Although Japan indicated that it had intended to discuss and
agree on the Operational Criteria with the United States, the United States had first learned of the
Operational Criteria when it received Japan's first submission.
8.14 Japan argues that the Operational Criteria have all the characteristics of a "measure" under the
SPS Agreement. These Criteria are a "supplementary guideline" setting forth methods to implement
the Detailed Rules although they do not take the fo rm of an enforceable regulation. They are
administrative criteria of the Japanese Government. The Operational Criteria are a specific irrevocable
offer which Japan would be obliged to implement if the United States agreed to them.
8.15 Japan argues that if the Panel did not consider the Operational Criteria it would be forced to
either accept, or reject, the Detail ed Rules without information relevant to their interpretation. The
Detailed Rules were formulated according to Japanese administrative law practice. Japanese laws and
regulations stipulate a general regulative mechan ism, and government authorities stipulate rules,
guidelines and directives within their mandate. Although the precise wording, documentation and

157 A more detailed account of the arguments of the parties can be found in paras. 4.1-4.9 of this
Report.

dissemination of the Operational Criteria were completed as late as 13 September 2004, the
Operational Criteria should be considered as the em bodiment and elaboration of the Detailed Rules,
which were notified to WTO Members on 29 June 2004.
(iii) Analysis of the Panel
8.16 We note that the Operational Criteria provide for a number of procedures which are not
otherwise specified in other parts of Japan's legislation:
(a) The objectives of the border zones of around 10-meter width are two-fold. The first
objective is to prevent branches of trees in side the "free area of fire blight" (as
provided for by the Detailed Rules, hereinaf ter "orchard") from overlapping, or being
in direct contact, with plants outside the orchard. The second objective is to delineate
the boundary of the export orchard for wh ich both authorities will ensure the absence
of fire blight symptoms according to these criteria. The requirement will be
automatically met when the orchard is surrounded by passageways, waterways or
other equivalent zones of an around 10-meter width, as is normally the case.
Consequently, if there are zones of the equivalent width inside one orchard at a
certain location, each of the sections (b locks) surrounded by the zones will be
considered an independent orchard.
(b) No inspection of the border zone will be done as long as the border zone is not used
as cultivating grounds of host plants of the disease. This requirement will also be met
automatically when the orchard is surrounded by passageways or waterways.
(c) The annual inspection by the US authoriti es (including confirmation by the US and
Japanese authorities) will be done only once, visually, by officials driving through an
orchard using a buggy car, inspecting the exterior of apple trees inside the orchard.
(d) Inspection under (c) above is designed to detect only typical symptoms on large
branch(es). Suspected symptoms will then be laboratory-tested before they are found
positive.
(e) When a heavily blighted tree is found, only the particular section (block) within the
orchard will be disqualified, as long as the around 10-meter "border zone" (e.g., a
passageway or a waterway) surrounds the section. The rest of the orchard will retain
the status of a qualified export orchard and will be treated equally with other export
orchards where no such tree was found.
(f) As long as a particular growing lot is su rrounded by a "border zone" of around 10
meters within an orchard, each such lo t of any size will be considered an
"independent orchard" or a "section" for the purpose of determination under
(e) above, except for those varieties designate d as "least resistant" to the fire blight
disease by the USDA. Sections for these varieties must be surrounded by either a
passageway, a waterway, a cliff or other na tural barriers of around 10 meters in
width.
8.17 As a preliminary remark, the Panel notes that the US request for a preliminary ruling was
made after its first written submission, whereas paragraph 13 of the Pane l working procedures
provides that any such request should be file d at the time of the first written submission.
158 However,
the United States claims that it became aware of th e existence of the Operational Criteria only when

158 See working procedures of the Panel, Annex I to this Report.

Japan filed its first written submission.
159 Japan alleges that the Un ited States was aware of the
substance of the Operational Criteria before that date. 160 However, we see no reason not to believe
that the United States was made aware of the decision of Japan to apply the above-mentioned
requirements through "Operational Criteria" only wh en Japan filed its written submission before the
Panel. Therefore, we consider the explanation given by the United States to be a showing of good
cause, within the meaning of paragraph 13 of our work ing procedures. As a result, we did not, and do
not now, find that the US request is inadmissible on ground of lateness.
8.18 The Panel recalls that a review under Article 21. 5 of the DSU applies to "measures taken to
comply with the recommendations and rulings" of the DSB. It notes the argument of the United
States that the Operational Criteria are not "measure s" and were apparently not even adopted at the
time the matter was referred to the Panel.
8.19 The Panel is not of the view that the binding or non-binding nature of the Operational Criteria
should play a role in determining whether they shoul d be reviewed in this proceeding. As soon as the
Operational Criteria were brought to the attention of the United States and the Panel, they became an
official statement of how Japan intended to impl ement its legislation on fire blight on which the
United States and the Panel could rely.
161 As such, the Operational Criteria are a fact. 162 The duty of
the Panel to make an objective assessment of the f acts pursuant to Article 11 of the DSU implies that
the Operational Criteria, as a fact, be taken into account by the Panel if they are properly before it.
8.20 The second and more important issue before us is whether a text dated 13 September 2004,
i.e. more than one month after the establishment of the Panel and more than two months after the end
of the reasonable period of time (30 June 2004), may be reviewed by the Panel.
8.21 Panels have dealt with events that occurred in the course of the proceedings and that had
affected the existence or persistence of a violation. 163 Previous Article 21.5 panels have been
confronted with measures adopted after the end of the reasonable period of time but before their
establishment, or measures adopted soon af ter the establishment of the panel. In Australia – Salmon
(Article 21.5 – Canada) , the complaining party requested that a measure not identified in the request
for establishment be nonetheless reviewed by the compliance panel. In its report, the panel said:
"We do not consider that measures taken s ubsequently to the establishment of an
Article 21.5 compliance panel should per force be excluded from its mandate. [...] In
compliance panels we are of the view that there may be different and, arguably, even
more compelling reasons [than before an original panel] to examine measures
introduced during the proceedings. As noted earlier, compliance is often an ongoing
or continuous process and once it has been id entified as such in the panel request, as
it was in this case, any 'measure taken to comply' can be presumed to fall within the
panel's mandate, unless a genuine lack of notice can be pointed to."
164
8.22 We consider that the approach of the Australia – Salmon (Article 21.5 – Canada) panel could
equally apply in this case.
8.23 We also note that in Japan – Agricultural Products II, the Panel found that Japan should have
notified a non-binding administrative practice pu rsuant to Article 7 and Annex B of the SPS

159 See para. 4.7, above.
160 See para. 4.2, above.
161 See Panel Report on US – Section 301 Trade Act, para. 7.124.
162 See Appellate Body Report on India – Patents (US) , para. 65, quoting the judgement of the
Permanent Court of International Justice in Certain German Interests in Polish Upper Silesia.
163 Panel Report on India – Autos, paras. 8.27- 8.28.
164 Panel Report on Australia – Salmon (Article 21.5 – Canada), para. 7.10.

Agreement. We believe that if the guidelines referred to in Japan – Agricultural Products II were
deemed to constitute "phytosanitary regulations" with in the meaning of Annex B, paragraph 1, of the
SPS Agreement, the Operational Criteria should a fortiori be considered to be "phytosanitary
regulations" which have to be "pub lished promptly in such a manner as to enable interested Members
to become acquainted with them."
8.24 Japan did not provide any reason why the Opera tional Criteria could not be notified to the
United States by the end of the reasonable period of time if they indeed, as Japan implies, had already
been prepared, although apparently in a different form. We deduce from the obligation of Members
to promptly publish their phytosanitary regulatio ns pursuant to Article 7 and Annex B of the SPS
Agreement that the United States was under no ob ligation to assume that Japan would adopt
additional implementing instruments, nor that these instruments would take the form of Operational
Criteria. Rather, it was for Japan to take appropriate steps to inform the United States.
8.25 However, totally disregarding the Operational Criteria in this case would go against the
principle of prompt settlement of disputes containe d in Article 3.3 of the DSU. The Operational
Criteria obviously provide a statement of how Japan intends to implement the recommendations and
rulings of the DSB at the time this Panel was called upon to review the "measures taken to comply"
by Japan.
8.26 As a result, the Panel will consider the Operational Crit eria to the extent that they inform an
objective assessment of the matter.
8.27 However, the Panel regrets Japan's practi ce in this case. The communication of the
Operational Criteria to the United States before the establishment of the Panel might well have
assisted the United States in determining whether a recourse to Article 21.5 of the DSU would be
fruitful. In particular, it would have allowed the United States to better assess the extent of Japan's
compliance with the recommendations and rulings of the DSB and facilitated a prompt settlement of
the dispute.
2. Scope of Japan's "measure(s) taken to comply"
(a) Whether the measure taken to comply should be treated as one measure composed of several
requirements or as separate measures
8.28 We note that, on the one hand, the United States has requested that we treat each requirement
imposed by Japan as a separate measure. On the ot her hand, Japan also requests us to make specific
findings on each of the requirements that it maintains.
8.29 We recall that the Original Panel treated the requirements imposed by Japan as several
elements of one single measure, essentially because all the requirements were presented as part of a
systemic approach. The parties gave us no substan tive reasons for us to treat the compliance measure
any differently than the original measure. The approach of the Original Panel was not reversed by the
Appellate Body and the same "systemic" approach as the one followed by Japan with respect to the
original measure seems to have prevailed with the compliance measure. However, as highlighted
above, the circumstances of this case may justify that we make specific findings on each of the
elements of the compliance measure, without having to treat each element as a separate measure. As
we will see below, many elements of the complia nce measure are interrelated and justified on the
basis of the same scientific evidence. Treating them as separate measures could give the impression
that they can apply independently of each other, which may not always be the case.

8.30 As a result, the Panel decides to treat all th e requirements imposed by Japan as elements of
one measure. However, we may make specific findings on the different elements of this measure if
we believe this will assist in the prompt resolution of the dispute.
(b) Identification of the measure taken to comply
8.31 We recall that, in Canada – Aircraft (Article 21.5 – Brazil) , the Appellate Body specified that
Article 21.5 proceedings are limited to those measures taken to comply with the recommendations and
rulings of the DSB. In the opinion of the Appellate Body:
"[...] the phrase 'measure taken to comply' refers to measures which have been, or
which should be, adopted by a Member to bring about compliance with the
recommendations and rulings of the DSB. In principle, a measure which has been
'taken to comply with the recomme ndations and rulings' of the DSB will not be the
same measure as the measure which was subject to the original dispute, so that, in
principle, there would be two separate and distinct measures [footnote omitted]: the
original measure which gave rise to the recommendations and rulings of the DSB,
and the 'measures taken to comply' which are – or should be – adopted to implement
those recommendations and rulings."
165
8.32 In its implementation process, Japan has ma de some changes to the original measure 166 and
has produced new studies to support its view that (a) mature, symptomless apples can be "latently"
infected and (b) infected apples could, once on the Japanese territory, contaminate host plants. On the
basis of these studies, Japan has ma intained many elements of the original measure in the measure
taken to comply. For this reason, we consider that all the elements of the measure currently in place
should be treated as the "measures taken to comp ly", even though many of those elements were
already found in the original measure.
8.33 As a result, we conclude that the "measure ta ken to comply" which this Panel should review
is composed of the following elements:
(a) Fruit must be produced in designated fire blight-free orchards. Designation of a fire
blight-free area as an export orchard is made by the United States Department of
Agriculture (USDA) upon application by the orchard owner. Currently, the
designation is accepted only for orchards in the states of Washington and Oregon;
(b) The export orchard must be free of plants with fire blight symptoms;
(c) The fire blight-free orchard must be surrounded by a buffer zone (or border zone) of
around ten meters, free of fire blight symptoms;
(d) The orchard and surrounding buffer zone must be inspected once per year at early
fruitlet stage. Detection of a blighted tr ee in this area by inspection will disqualify
the orchard;
(e) Harvested apples must be treated with surface disinfection by soaking in sodium
hypochlorite solution;
(f) The interior of the packing facility must be disinfected by a chlorine treatment;

165 Appellate Body Report on Canada – Aircraft (Article 21.5 – Brazil), para. 36.
166 See paras. 4.14-4.20, above.

(g) Fruit destined for Japan must be kept separate post-harvest from other fruit;
(h) US plant protection officials must certify that fruits are free from fire blight and have
been treated post-harvest with chlorine; and
(i) Japanese officials must confirm the US offi cials' certifications and inspect packing
facilities.
C. ARTICLE 2.2 OF THE SPS AGREEMENT
1. Approach of the Panel167
8.34 Article 2.2 of the SPS Agreement reads as follows:
"Members shall ensure that any sanitary or phytosanitary measure is applied only to
the extent necessary to protect human, animal or plant life or health, is based on
scientific principles and is not maintained without sufficient scientific evidence,
except as provided for in paragraph 7 of Article 5."
8.35 The United States claims that Japan has faile d to comply with the recommendations and
rulings of the Dispute Settlement Body and that Japan's compliance measure is not compatible with
Article 2.2 of the SPS Agreement. In this regard , the United States only claims that the compliance
measure is maintained without sufficient scientific evidence, within the meaning of Article 2.2.
8.36 Japan considers in substance that the new st udies referred to in its submissions provide
sufficient scientific evidence to justify all the elements of the compliance measure.
8.37 We recall that, in its report, the Original Pane l proceeded in two steps. First, it assessed to
what extent scientific evidence confirmed that appl e fruit could be contaminated and, if exported to
Japan, complete the pathway and contaminate host pl ants in Japan; secondly, it went on to assess to
what extent the measure as a whole was maintained with sufficient scientific evidence, i.e. whether it
bore any rational relationship with the scientific ev idence. The Appellate Body did not contest the
validity of this approach. We therefore consider th at we can follow the same approach as the Original
Panel, i.e.:
(a) first, determine whether the scientific ev idence in its present state confirms the
possibility for apple fruits to serve as a pathway for the entry, establishment and
spread of fire blight in Japan; and
(b) second, determine whether the elements of th e measure at issue are "not maintained
without scientific evidence", i.e. whether a sufficient or adequate relationship exists
between the scientific evidence and the elements of the compliance measure.
8.38 As an Article 21.5 compliance panel, we are required to look at the compliance measure as a
new measure subject to new claims. 168 We note that the United States considers that the new studies
submitted by Japan do not affect the body of scientifi c evidence relied upon by the Original Panel.
Nor does Japan claim that the scien tific evidence relied upon by the Original Panel is no longer valid.
Rather, it claims that its new studies complement the existing scientific evidence. We therefore
consider that the scientific evidence available to the Original Panel is still relevant to our examination

167 A detailed account of the arguments of the parties can be found in paras. 4.21-4.130 of this Report.
168 See, e.g., Appellate Body Report on Canada – Aircraft (Article 21.5 – Brazil), paras. 40-42.

of the compliance measure and we take as our starti ng point the conclusions reached by the Original
Panel with respect to that scientific evidence.
2. Existence of sufficient scientific evidence that apples can serve as a pathway for the
entry, establishment and spread of fire blight in Japan
(a) Introduction
8.39 The Original Panel concluded the following with respect to the scientific evidence regarding
entry, establishment and spread of fire blight in Japan through apple fruit:
"(a) If infection or infestation of immature apple fruit is not contested, infection of
mature, symptomless apples has not been established;
(b) the possible presence of endophytic bact eria in mature, symptomless apples is
not generally established;
(c) the presence of epiphytic bacteria in mature, symptomless apples is
considered to be extremely rare;
(d) assuming that either of the situations of infection or infestation listed above
would arise, the entry, establishment or spread of the disease as a result of the
presence of these bacteria in or on apple fruit would require the completion of an
additional sequence of events which is deemed unlikely, and which has not even been
experimentally established to date."
169
8.40 The Original Panel concluded that there was not sufficient scientific evidence that apple fruit
are likely to serve as a pathway for th e entry, establishment or spread of fire blight within Japan. The
Panel nonetheless made a number of qualifications to th is conclusion. It considered that the scientific
evidence "does suggest that some slight risk of contamination cannot be excluded." It nonetheless
stated that the experts all cate gorized this risk as 'negligible'" 170 but could not agree with the United
States that the scientific prudence displayed by th e experts should be completely assimilated to a
"theoretical risk".171
8.41 Japan claims that it has new scientific evidence of (i) possible infestation/infection of apple
fruits through the pedicel which could lead to late nt infection of otherwise mature and symptomless
apples; and (ii) possible completion of the pathway through transmission of bacteria by flies from
infected discarded apples to host plants in Japan.
8.42 The new studies relied upon by Japan are:
(a) Azegami, et al. (2005)
172 which purports to show that maturating or mature apple fruit
are not immune from infection by the bacteria.

169 Panel Report on Japan – Apples, para. 8.171.
170 Panel Report on Japan – Apples, para. 8.173.
171 Panel Report on Japan – Apples, para. 8.175.
172 Azegami et al., "Invasion and colonization of mature apple fruit by Erwinia amylovora tagged with
bioluminescent genes", Journal of General Plant Pathology 70(6) December 2004. In response to the US
submission regarding a US study on the possibility that transpiration could explain bacterial movement into fruit
(Exhibit USA-21), Japan also presented information on an additional study by Azegami (Azegami et al., "Entry
of Erwinia amylovora into apple fruit from fruit-bearing twig through abscission layer at the time of fruit
maturation", Exhibit JPN-16) regarding the potential movement of bacteria through the abscission layer after it

(b) Tsukamoto et al. (2005a)173 which purports to demonstrate that mature apples can be
infected through cut pedicels and that the b acteria can survive for several months in
the apple at low temperatures.
(c) Tsukamoto et al. (2005b),174 which purports to show co mpletion of a pathway from
infected (whether latently or not) appl e fruit by common flies as a vector in an
environment consistent with the Japanese fauna.
(d) Kimura et al. (2005) 175 which discusses the probability of the infection of mature
apples and completion of the pathway in a discussion of the risk of introduction and
establishment of the disease in Japan.
8.43 The submission of these new studies by Japan in support of its compliance measure requires
that we re-assess the scientific evidence so as to determine:
(a) whether sufficient scientific evidence supports the assertion that mature and
symptomless apples can nonetheless harbour endophytic bacteria; and
(b) whether sufficient scientific evidence supports the assertion that the pathway could be
completed between a discarded infested/infected apple and a host plant in Japan, so as
to lead to the establishment and spread of fire blight in Japan.
8.44 These are the two questions that we will successively address in this section.
8.45 Before proceeding with our review of those ques tions, we believe that we need to make the
following clarification with respect to the notion of sufficient scientific evidence. This Panel is
confronted with the situation where Japan claims that certain new pieces of scientific evidence
specifically support its measure. Thus the question be fore us in this proceeding is not so much
whether the evidence relied upon by Japan is "scientific"
176, but primarily whether it is "sufficient". In
Japan – Agricultural Products II , the Appellate Body presented "sufficiency" as a relational concept
between two elements: the scientific evidence and the measure at issue. The Original Panel stressed
that the scientific evidence relates to a risk and is supposed to confirm the existence of a given risk. 177
We note that the measure is supposed to address that risk. In other words, in order for scientific
evidence to support a measure sufficiently, it seems l ogical to us that such scientific evidence must
also be sufficient to demonstrate the existence of the risk which the measure is supposed to address.
As a result, it seems reasonable to consider the ex tent of the relationship between the scientific
evidence and the risk which this evidence is claimed to establish.
8.46 We also note that Japan claims that the studies it commissioned do not contradict the evidence
already available. Even if that were not the case, the fact that the studies relied upon by Japan may not
correspond to the prevailing view representing the "m ainstream" of international scientific opinion is

had been formed. This Azegami study was not referenced in Japan's 2004 risk assessment and had not been
published at the time of the Panel proceeding. In addition, neither party directly discussed the information
included in that study or otherwise indicated that it was essential to their arguments before the Panel.
173 Tsukamoto et al., "Infection frequency of mature apple fruit with Erwinia amylovora deposited on
pedicel and its survival in the fruit stored at low temperature", Journal of General Plant Pathology (submitted).
174 Tsukamoto et al ., "Transmission of Erwinia amylovora from blighted mature apple fruit to host
plants via flies", Research Bulletin Plant Protection Service Japan (accepted for publication).
175 Kimura et al., "The probability of long-distance dissemination of bacterial disease via fruit", Journal
of General Plant Pathology (submitted).
176 We asked the experts whether the new studies presented by Japan met the criteria usually applicable
in the field to be relevant scientific evidence. The replies of the experts are contained in paras. 6.8-6.18.
177 Panel Report on Japan – Apples, para. 8.104.

not as such a reason for us to deny any relevance to these studies.
178 Each of the studies relied upon
by Japan should be assessed on its own merits.
(b) Does the scientific evidence, and in particular Japan's new studies, support the assertion that
mature and symptomless apples can nonetheless harbour endophytic bacteria?
(i) Azegami et al. (2005) 179
8.47 Japan essentially claims that Azegami et al. (2005) shows that bacteria passes through
vascular tissues and that this potential infection r oute would remain active until the formation of the
abscission layer.
8.48 The United States argues that Azegami et al. (2005) successfully introduced fire blight
bacteria into apple fruit through the pedicel, only when the pedicel and its abscission layer were
severed. The spread of bioluminescence into apple fruit was as likely a consequence of the cut-pedicel
method and transpiration as a result of active colonization and invasion by bacteria.
8.49 Having considered the arguments of the parties and third parties on these two studies, we
have reached the conclusion that, for the purpo ses of the Panel's assessment, the main issue
concerning these studies was their relation to natural conditions in an orchard. We therefore sought
the views of the scientific experts on this issue.
8.50 The experts consulted by the Panel generally cons ider that the conclusion of latent infection
in Azegami, et al. (2005) did not provide any results on late nt infection under natural conditions. 180
Dr Geider stated that, in late summer, the risk a nd occurrence of new fire blight incidence decline.
Migration of E. amylovora from an infested branch into a di sease-free branch and then into apple
fruits seemed unrealistic from the known infection steps. 181Dr Hale noted that the results of Azegami
et al. ( 2005) did not provide convincing evidence that ma ture fruit were likely to become infected
under natural conditions in an orchard.182 Dr Smith stated that:
"The suggested scenario of Japan was that bacteria might enter mature fruits, from
infections on twigs, through the pedicels, and be carried by the vascular system of the
fruit to the cortex, where they might persist as a latent infection. There was no direct
evidence that this happened under natural conditions. It seemed implausible that
earlier studies on the isolation of bacteria from inside fruits, which included cortex,
somehow had failed to detect these infections."183
8.51 Dr Hayward was not persuaded by the Azegami et al. (2005) study.184
8.52 In light of the opinion of the experts, we conclude that the Azegami, et al. (2005) study does
not support the conclusion that apples would b ecome mature and symptomless and yet be latently
infected in the natural conditions of an orchard.

178 See Appellate Body on EC – Hormones, paras. 193-194.
179 For a description of the study, see paras. 4.38-4.44 above.
182 Dr Hale, paras. 6.56-6.58.
183 Dr Smith, para. 6.60.
184 Dr Hayward, para. 6.59.

(ii) Tsukamoto et al. (2005a)185
8.53 In essence, Japan claims that the Tsukamoto et al. (2005a) study shows that E. amylovora has
the ability to survive for a period of a few mont hs under cold conditions, which corresponds to the
period and temperature conditions applicable to US apple fruits during handling, cold storage and
shipment to Japan.
8.54 The United States replies that the artificially i noculated fruit were maintained in conditions
which favoured the development of the bacteria and were completely different from those applicable
to apples exported to Japan. The phenomenon of inf ection through the pedicel described in Azegami
et al. (2005) and Tsukamoto et al. (2005a) is an artefact of laboratory experimentation.
8.55 Having considered the arguments of the parties a nd third parties on this study, we considered
that, for the purposes of the Panel's assessment, the ma in issue arising from it related to the storage
conditions applied to the apple fruit after their inocula tion, in particular the fact that they seemed to
differ substantially from the usual commercial storag e conditions applied in the United States. We
therefore consulted the experts on the storage cond itions applied to inoculated apples in Tsukamoto et
al. (2005a).
8.56 Dr Hale recalled that there is no published scientific evidence to suggest that mature,
symptomless fruit were infected via the pedicel s under natural conditions. The incubation of
inoculated fruit at 25 degrees Celsius for nine days prior to cool storage at 5 degrees Celsius was
certainly not a situation that would apply under nor mal conditions of harvest, cool storage and export
of apples. Consequently, Dr Hale considered that the Tsukamoto et al. (2005a) study relating to the
survival of E. amylovora in inoculated and incubated fruit di d not present any useful information. 186
Dr Hayward also considered that the treatment applied to apples in Tsukamoto et al. (2005a) was
unlike that used in commercial conditions. Dr Ha yward added that the inoculated apples had been
incubated for nine days at 25 degrees Celsius, a te mperature within the optimum range for growth in
culture in the laboratory. 187 Dr Smith commented that Tsukamoto et al. (2005a) was the "weakest
part" of the new studies.188
8.57 We conclude from the above that the Tsukamoto et al. (2005a) study does not support the
view of Japan that E. amylovora inoculated in a mature apple woul d survive cold storage treatment in
real commercial conditions.
(c) Does the scientific evidence s upport the assertion that the pathway could be completed
between a discarded infested/infected apple and a host plant in Japan, so as to lead to the
establishment and spread of fire blight in Japan?
(i) Tsukamoto et al. (2005b)189
8.58 Japan essentially claims that Tsukamoto et al. (2005b) demonstrates that the completion of
the pathway is more likely than thought at the time of the Original Panel. Three elements of the
Tsukamoto et al. (2005b) experiment methodology capture d natural ecological conditions. Flies
endemic to Japan were known vectors of fire b light disease. Japanese pear fruit, which were highly
susceptible to E. amylovora, were realistically representative of Japanese host plants. Moreover, the
timing of apple importation/consumption and of p ear growth coincides. Finally, the level of

185 For a description of the study, see paras. 4.44-4.47 above.
186 Dr Hale, para. 6.93.
187 Dr Hayward, para. 6.94.
188 Dr Smith, para. 6.97.
189 For a description of the study, see paras. 4.50-4.56 above.

contamination of flies in the second phase of the e xperiment was approximately equal to the level
observed in insects found in blighted orchards in natural conditions. According to Japan, it was logical
to conclude that the combination of infected apple fruit, flies and suitable host plants posed a risk of
completion of a pathway of the disease into Japan.
8.59 The United States argues that the methods employed in the study were so far removed from
what might actually take place under orchard produc tion conditions that the resulting data is not
useful in assessing the risk of transmission of fire blight or determining a probabilistic estimate of a
real world event. In particular, acco rding to the United States, Tsukamoto et al. (2005b) did not
demonstrate that greenbottle flies acquired cells of E. amylovora from infected fruits of their own
volition (i.e. when not artificially forced to asso ciate with infected apple fruit). Tsukamoto et al.
(2005b) does not demonstrate that the flies had directly or indirectly carried E. amylovora from the
infected fruit to the susceptible host material. Finally, the study also does not demonstrate that
infection and disease development were a result of a natural interaction between the flies and the host
material and were not dependent on artificial mechanical injury.
8.60 Having considered the arguments of the parties and third parties on these studies, the Panel
sought the views of the scientific experts on three main issues:
190
(a) whether the Tsukamoto et al. (2005b) study logically supported a risk of completion
of the pathway;
(b) whether the conditions the flies were subjected to in the Tsukamoto et al. (2005b)
study related to "plausible ecological conditions"; and
(c) to what extent flies could operate as possible vectors for the spread of fire blight.
8.61 Regarding the first question, Dr Geider stated that the chain of events required might not
practically occur and was scientifically unlikely. 191 Dr Hale had difficulties agreeing with Japan's
argument that the logical conclusion from the results of that study, was that the combination of
artificially infected apple fruit, flies, and suitable host plants poses a risk of completion of the disease
pathway.192 Drs Hale and Hayward also noted that the experimental conditions imposed bore little
resemblance to real world conditions. The Tsukamoto et al. (2005b) study eliminated all of the critical
factors of the natural environment, such as desi ccation, cyclical wetting/drying, UV irradiation and
heat exposure, as well as biotic factors such as antagonism or predation of E. amylovora by other
micro-organisms.193 From the results of the study, it could not be concluded that flies contaminated
with E. amylovora from inoculated apples did, in fact, cause infection in susceptible host tissues. This
pathway had not been completed in the experiment. There was no evidence of completion of a
pathway of the disease even in the artificial e xperimental conditions imposed in the study.
Conclusions about how these conditions related to the natural envir onmental situation could only be
conjecture.194 Dr Smith considered that the lack of inv estigation of direct infection by flies much
weakened the claim that a pathway had been demonstrated. 195 Drs Geider, Hale and Hayward
considered that insects were unlikely to visit bot h infected fruit and susceptib le plant tissues such as
blossoms.196

190 See questions 19, 20 and 21 of the Panel to the scientific experts, Section VI of this Report.
191 Dr Geider, para. 6.114.
192 Dr Hale, para. 6.115.
194 Dr Hale, para. 6.117.
195 Dr Smith, para. 6.122.
characteristic patterns of behaviour, substrate and host preference."

8.62 The Panel further inquired whether, in the opinion of the experts, the conditions the flies were
subjected to related to "plausible ecological conditions", as stated by Japan.
8.63 Dr Hale confirmed that the experimental cond itions the flies had been subjected to did not
bear any relationship with "p lausible ecological conditions". 197 Drs Hayward and Smith expressly
concurred.198 Dr Smith in particular insisted that the insects had been placed in a no-choice
situation.199 while Dr Geider stressed that this was a theoretical situation.200
8.64 On the third question, Dr Geider stated that it seemed reasonable to distinguish the visiting
behaviour of fly species (garbage/flowers). 201 Dr Hale considered that the Tsukamoto et al. (2005b)
study did not provide convincing scientific evidence that the flies used in the experiments were
vectors for the spread of fire blight. Drs Hale and Hayward referred to Taylor et al. (2003), which
had documented the situation relating to the possible transmission of E. amylovora from discarded,
infested, mature apple fruit to susceptible host tissues. Taylor et al. (2003) had been unable to recover
the bacteria from insects trapped in the orchar d or find any evidence of transmission from calyx-
infested apples to susceptible hosts. Dr Haywar d emphasized the importance of studies in orchard
conditions and felt that more such studies should be carried out in these conditions. 202 For Dr Smith,
it was simply not enough to work with any sort of fly. Other lines of studies could be envisaged,
determining which insects in the field were attracted to rotten apples, or were found around pear or
apple fruits. Dr Smith also recalled that the most significant result of Taylor et al. (2003) was that
they were unable to recover the bacterium at all, from any insect tested.203
8.65 From the above, we conclude that the expe rts have confirmed the assertion of the United
States that the Tsukamoto et al. (2005b) study does not establish that flies would serve as a vector
which would complete the pathway. In particular , the conditions of the experiment are too removed
from natural conditions. Comparatively, we note that the study by Taylor et al. (2003), carried out in
natural conditions, did not recover bacterium from insects.
(ii) Kimura et al. (2005)204
8.66 Japan essentially claims that Kimura et al. (2005), using the results of Azegami et al. (2005)
and Tsukamoto et al. (2005b) found that the quantitative risk of transmission of the disease by apple
fruit was not insignificant. Kimura et al. (2005) also suggested an a lternative explanation to the
bacterial introduction to apple fruit. It could be through the pedicel, to the vascular tissue and the
cortex (flesh), rather than through the calyx to the core. Japan also claims that Kimura et al. (2005)
showed that the completion of the pathway by flies was not a theoretical risk but a real one.
8.67 The United States notes that Kimura et al. (2005) relied on Azegami and Tsukamoto's works.
However, Kimura et al. (2005) misrepresented Azegami et al. ( 2005) by concluding that "even at a
stage apple fruit gets ripe, it is likely enough that E. amylovora in fruit-bearing branches will infect
the inside of apples." According to the United States, the Azegami et al. (2005) paper does not
demonstrate that infection through the pedicel or ab scission layer of a mature apple fruit is possible.
Kimura et al. (2005) also cited Tsukamoto et al. (2005b) for the proposition that E. amylovora had
been recovered from the "flesh" of apple fruit and not from the core, alleging that previous studies
only sampled core tissues and therefore failed to identify E. amylovora in the apple fruit. However,

197 Dr Hale, para. 6.124.
199 Dr Smith, para. 6.126.
200 Dr Geider, para. 6.123.
201 Dr Geider, para. 6.127.
202 Dr Hayward, para. 6.131.
203 Dr Smith, para. 6.132.
204 For a description of the study, see paras. 4.57-4.67 above.

previous studies described in Roberts et al. (1989) had examined a portion of the apple fruit that
included the flesh discussed in Azegami et al. (2005), Tsukamoto et al. (2005b) and Kimura et al.
(2005).
8.68 Having reviewed the arguments of the parties a nd third parties, we consider that for the
purposes of the Panel's assessment, the main issue relating to the Kimura et al. (2005) study is the
reliance of this study on Azegami et al. (2005) and Tsukamoto et al. (2005b).
8.69 The experts consulted by the Panel considered that the Kimura et al. (2005) study depended
heavily on the validity of the basic assumptions.
205 Drs Hale and Hayward concurred in saying that
the Kimura et al. (2005) study relied heavily on the infection study made by Azegami et al. (2005)
and the pathway studies by Tsukamoto et al. (2005a, b) 206, which did not provide any evidence that
the pathway for disease, from infected fruit to susceptible host tissues, could be completed under
natural ecological conditions. The fact that Kimura et al. (2005) assumed that the pathway could be
completed by flies under natural ecological conditions was not supported by the published record.207
8.70 We conclude, in light of the arguments of the parties and the opinion of the experts that the
Kimura et al. (2005) study does not provide sufficient scientific support for the quantification of the
risk of completion of the pathway.
(d) Conclusion
8.71 From the above, we conclude that the new studies submitted by Japan do not provide
sufficient scientific evidence to establish, in natural conditions, the risks which Japan tries to support
with those studies that:
(a) mature and symptomless apples can nonethel ess harbour endophytic bacteria (latent
infection); and that
(b) the pathway would likely be completed be tween a discarded infested/infected apple
and a host plant in Japan, so as to lead to the establishment and spread of fire blight in
Japan.
8.72 Having reached that conclusion, we move to assess the existence of a rational relationship
between the scientific evidence and each element of the compliance measure.
3. Review of each element of the compliance measure
(i) Introductory remarks
8.73 We note that both the scientific evidence availa ble and the views of the experts consulted by
the Panel support the assertion of the United States th at mature, symptomless apples are unlikely to
transmit fire blight to host plants in Japan. The scientific evidence available and the experts consulted

205 Dr Geider, para. 6.133.
206 Dr Hale, para. 6.134; Dr Hayward, para. 6.135. Dr Smith judged the probability estimates in
Kimura et al. (2005) to be "debatable" (para. 6.137).
207 Dr Hale added that Taylor et al. (2003) had established that ins ects do not become contaminated
with E. amylovora from infested fruit discarded in an orchard wh en susceptible host tissue was in abundance.
Hale et al. (1996) had also reported that th ere was no detectable spread of E. amylovora from heavily infested
calyxes and fruit surfaces to blossom clusters , immature or mature fruits. Taylor et al. (2003a) also found that
the population levels of E. amylovora required for infection of susceptible host tissues under orchard conditions
far exceeded the levels likely to be present in infected apple calyxes at harvest and after cold storage
(para. 6.129).

by the Panel also concur on the view that the tran smission of fire blight to a host in Japan by an
infected apple is unlikely. As mentioned by Dr Sm ith before the Original Panel, "from a scientific
position, the logical conclusion of saying that there is an absolutely negligible risk of movement of
fire blight with fruits is in fact a completely unrestricted trade."208
8.74 However, we recall that, neither before the Or iginal Panel nor before this Panel, did the
United States request to be entitled to export appl es under whatever conditions it wants. Rather, the
United States has suggested that it should be entitled to export mature, symptomless apples. The
Original Panel concluded that the concepts of "mat ure" and "symptomless" were relevant in terms of
contamination of the fruit and scientifically pertinent. 209 This conclusion is not affected by the
evidence submitted before this Panel. Both the re levant scientific evidence and the opinions of the
experts consulted by the Panel support the view th at limiting exports of apples from the United States
to mature, symptomless fruits would ensure that such shipments do not cont aminate host plants in
Japan.
8.75 We note that the United States proposes to ex port only mature, symptomless apples, and has
also expressed its commitment, through its own legisl ation (the US Apple Export Act) to export only
mature, symptomless apples. Since scientific meanin g can be attached to the concepts of "mature"
and "symptomless" apples, we consider such a co mmitment to be, in principle, an objective and
verifiable one. We note that the experts stated th at export quality controls ha ve to be established and
also verified.210 We also note Japan's repeated concern that something other than mature, symptomless
apples could be exported by mistake. We further recall that the concept of mature, symptomless
apples is scientifically pertinent, 211 and therefore a verifiable one. However, whether the controls
currently in place to ensure that apples are mature and symptomless may be subject to discussion, as
evidenced by Japan's arguments. This said, we assume that if the United States is ready to export only
mature, symptomless apples and if, as evidenced by its position, the United States believes that
"mature" and "symptomless" are objective concepts , then the United States should have no objection
to measures necessary to control that shipments ar e actually composed only of mature, symptomless
apples. We therefore consider that we should carry out our review of the elements of the compliance
measure starting from the hypothesis that what is exported in principle is mature, symptomless apples.
8.76 In our examination of Japan's requirement, some elements of the measure will be reviewed
together, because they relate to different aspects of the same concern.
(ii) Requirement that: (a) fruit be produced in a designated fire blight-free orchard; (b) the
export orchard be free of plants infected w ith fire blight; (c) the orchard and surrounding
buffer zone be inspected once per year at early fruitlet stage; and (d) detection of a blighted
tree in this area by inspection will disqualify the orchard
Summary of the arguments of the parties212

8.77 The United States argues that there is no scientif ic evidence that a fruit from a tree infected
with fire blight poses a risk of transmission of fi re blight if the fruit is mature and symptomless.
Therefore, there is no rational relationship between the scientific evidence and Japan's requirement
that apples be sourced from fire blight-free orchards.

208 Panel Report on Japan – Apples, para. 8.173.
209 Panel Report on Japan – Apples, paras. 8.115 and 8.118.
211 See Panel Report on Japan – Apples, paras. 8.113 and 8.118.
212 A detailed account of the arguments of the parties can be found in paras. 4.70 to 4.114 of this
Report.

8.78 According to Japan, the experts before the Or iginal Panel expressed caution against exporting
apples from (severely) blighted orchards. In additi on, Japan considers that the potential of infection
of mature apple fruit through pedicels or surface wo unds would be more pronounced when the tree is
severely blighted.
8.79 The United States notes that there is no scientific evidence to justify a measure restricting the
eligibility of growers or packers based on concerns re garding spread of fire blight. Japan might have
legitimate reason to restrict exports from certain st ates because of other plant diseases and quarantine
pests. However, Japan has no grounds to restrict those exports under the auspices of a fire blight-
specific measure.
8.80 Japan counters that the same measure applies to any state consistently with the Detailed Rules
and the Operational Criteria. If the United Stat es provides appropriate documentation of other
quarantine pests and diseases, other states will be added to the eligible exporting locations.
8.81 The United States argues that the unjustified and unscientif ic nature of Japan's requirement is
further demonstrated by considering that the requireme nt that orchards be free of fire blight means
that a single fire blight strike on a single tree will disqualify all apple fruit in the orchard, even those
tens, hundreds, or thousands of meters away from the source of inoculum.
8.82 Japan replies that scientists have recognized the risk of transmission of the disease from one
tree to another adjacent tree. Japan argues that its de finition is equivalent to the "(severely) blighted"
condition referred to in the findings of the Original Panel.
8.83 The United States claims that the requirement for at least one inspection of both the orchard
and the buffer zone at the early fruitlet stage to ensure that the orchard and buffer zone are free of fire
blight bears no rational or objective relationship to the scientific evidence relating to apple fruit and
fire blight.
8.84 In response, Japan states that the fruitlet stage is the best observation point for the fire blight
infection of an orchard. If the orchard has already been (severely) blighted during the fruitlet stage,
the orchard will likely produce a higher number of in fected (immature) appl es than otherwise.
Similarly, the level of bacterial presence in a ( severely) blighted orchard at the fruitlet stage may
result in a higher probability of latent infection.
Analysis of the Panel

8.85 The four requirements referred to above are addressed together to the extent that they relate to
the question whether a mature, symptomless apple harv ested (a) from a blighted or severely blighted
orchard; or (b) from an orchard where other blighted plants can be found could pose a threat with
respect to the entry of fire blight into Japan.
8.86 We note that, before the Original Panel, the experts had expressed the opinion that "it would
be appropriate not to export apples from (severely) blighted orchards" 213 and the Panel had interpreted
this statement as evidence that some protection was jus tified by the state of the scientific evidence. In
this proceeding, the experts further elaborated on th e matter. Dr Smith noted that "it would not be
possible to market successfully apples or pears from severely blighted orchards." 214 Dr Geider said
"There may be no strict scientific basis to say that this is something that you should not do. On the

213 Panel Report on Japan – Apples, para. 8.226.

other hand there are practical reasons. I think this is what we say is good practice so it's good orchard
practice not doing that."215 Dr Geider added that:
"There is some experience saying [apples fro m blighted orchards] 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 th is precaution not to take the apples from the
blighted orchards, but maybe this is the only reason I have. It is good commercial
practice to obey limits of phytosanitary ordinance."
8.87 Dr Hale stated that "it would not be economic to even harvest [fruits from severely blighted
orchards], never mind export them."
216 He added that, in the case of a neglected orchard, "it usually
means that the treatment will be the use of the chainsaw."217 Dr Hayward concluded that "If we accept
all sides of the evidence about mature symptomles s fruit it should still be possible to harvest fruit
from a severely blighted orchard without risk", 218 and Dr Smith added, with respect to neglected
orchards which had been found to be severely blighted, that "a neglected orchard is neglected not only
with respect to fire blight, it is also neglected w ith respect to codling moth and everything else. So
that fruits cannot be taken from some orch ards. This is an academic argument." 219 Thus, the reason
for not exporting from a blighted orchard is essen tially one of good agricultural and commercial
practice. A severely blighted orchard will produce only a few mature, symptomless apples, and those
apples could also be infected by other pests or disease if, in addition, the orchard is neglected.
8.88 We conclude from the above that if a mature, symptomless apple is harvested from a blighted
orchard, even a severely blighted one, the likelihood that it will be infected has not been established.
Infestation is possible, though unlikely. Indeed, it was determined by the Original Panel and not
contested in this proceed ing, that any epiphytic E. amylovora that could be found on the surface of
mature, symptomless apples are unlikely to ha ve the capacity to contaminate host plants. 220 If neither
infection nor infestation by populations of E. amylovora is likely to be found in mature, symptomless
apples harvested from severely blighted orchards, it is even less likely to be found in apples from
lightly blighted orchards or non-blighted orchards where a fire blight-infected plant has been found.
8.89 We have determined that available scientific evidence does not support the view that mature
symptomless apples harvested from blighted orchards , whether severely blighted or not, or from non-
blighted orchards where other plants have been fo und to be infected, would harbour populations of
E. amylovora capable of spreading fire blight disease . It follows from this determination that the
requirements that apple fruit come from a designated orchard 221, that the orchard be free of apple trees
or other plants infected with fire blight, that the orchard and surrounding buffer zone be inspected
once per year at the early fruitlet stage, and that det ection of a blighted tree in this area by inspection

220 Panel Report on Japan – Apples, paras. 8.134-8.136.
221 We note that, for the time being, only orchards from the states of Washington or Oregon may be
designated. We do not consider it necessary to make a finding on this issue essentially because Japan stated that
the exclusion of states other than Washington and Oregon results from the failure of the United States to provide
documentation regarding quarantine pests and diseases other than fire blight in relation to other states. We note
that if apples from states other than Oregon and Washington cannot be exported because the United States failed
to comply with phytosanitary requirements relating to dis eases other than fire blight, the fact that those apples
may be free of fire blight will not make them exportable to Japan. Neither before this Panel nor before the
Original Panel, did the United States demonstrate that Ja pan imposes measures relating to fire blight in relation
to other quarantine pests or diseases. Since the restrictio n primarily relates to other pests or diseases, we see no
reason to make a finding on it in this case.

will disqualify the orchard as a whole, cannot be c onsidered to be supported by sufficient scientific
evidence.
8.90 However, the Panel notes that orchard inspection may be part of good agricultural practices or
even scientifically justified in relation to diseases other than fire blight.
(iii) The fire blight-free orchard must be surrounded by a ten-meter buffer zone (or border zone)
free of fire blight
8.91 The United States claims that the requirement of a buffer zone is not scientifically justified.
This is further demonstrated by considering that a fire blight-free requirement in a buffer zone means
that trees tens, hundreds, or thousands of meters away from a potential source of inoculum will be
disqualified for export to Japan.
8.92 Japan argues that the buffer zone is necessary to (i) clearly delineate and define an "export
orchard," separate from the rest of the grounds and s ubject to phytosanitary requirements, and to (ii)
prevent branches of trees inside the orchard from overlapping, or being in direct contact, with plants
outside the orchard.
8.93 It has been established before the Original Pa nel that no buffer zone or border zone of any
size was justified by the existing scientific data, as fruit harvested from blighted trees or adjacent to
blighted trees had not harboured E. amylovora .
222 Experts before this Panel have confirmed the
absence of scientific justification for imposing bu ffer zones or border zones. Referring to Roberts et
al. (2002), both Dr Hale and Dr Hayward confirmed that no buffer zone of any size was justified by
existing scientific data to provide phytosanitary protection, as mature, symptomless fruit, harvested
from either blighted trees, or adjacent to blighted trees, did not harbour E. amylovora .223 This
conclusion equally applied to resistant or least resistant varieties of apples.224
8.94 As mentioned above, our analysis is based on th e premise that the product to be exported by
the United States to Japan will be mature, symptomle ss apple fruit. If this is the case, i.e. apples are
not infected and do not harbour viable epiphytic populations of E. amylovora, irrespective of whether
they were harvested from a blighted tree or not, the requirement of a 10-meter border zone, to the
extent that it is supposed to avoid the spreading of fire blight to non infected apple trees, is not
supported by sufficient scientific evidence.
(iv) Harvested apples must be treated with surface di sinfection by soaking in sodium hypochlorite
solution
8.95 We note that Japan has asserted that the washing of apple fruit was part of the normal
commercial treatment of US apples and hence cau sed no additional burden on US exporters. The
United States argues that it applies surface disinfection as a result of Japan's requirement, as
evidenced by its phytosanitary certificate form for exports to Japan.
8.96 The experts have expressed the view that surface disinfection is not regularly accepted
commercial practice.225 It may even be harmful to human health.226 Moreover, Dr Hayward stated:

222 Panel Report on Japan – Apples, para. 8.189.
223 Dr Hale, paras. 6.68-6.69; Dr Hayward, para. 6.71.

"Why would we treat mature symptomless apple fruit by any disinfestation process,
say a chlorine solution or something of th at 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, ma ture 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 becau se the calyx will not be reliably penetrated
by the solution you are using to treat it."227
8.97 Having regard to the experts' opinions, we conclude that surface disinfection is not justified
by scientific evidence to the extent that the existence of an epiphy tic infestation of apple fruit by E.
amylovora in quantities capable of reproduction and ultimat ely of infecting a host plant has not been
established. Assuming that bacteria could be fo und in the calyx, the surface treatment required by
Japan would not be effective in removing them.
(v) The interior of the packing facility must be disinfected by a chlorine treatment
8.98 The United States claims that there is no sci entific evidence that apple fruit intended for
export could be epiphytically contaminated with fire blight-causing bacteria in packing houses, much
less that such contamination could then result in introduction of fire blight in Japan. Facility
desinfestation is not standard in the US apple industry.
8.99 Japan argues that the disinfection of packing facilities by a chlorine treatment is a normal
requirement in any process in that it only requir es a level of sanitation typical in a commercial food
production line.
8.100 The experts who expressed their views on the requirement that the interior of packing
facilities be disinfected by a chlorine treatment que ried how this requirement was different from the
normal requirement of a certain level of sanitation. 228 Moreover, Japan's legislation does not provide
any particular detail on the requirement (e.g., regarding the frequency of disinfection).
8.101 We note that sanitation of packing facilities seems to be an established commercial
practice.229 However, to the extent that the reason for such a requirement with respect to mature,
symptomless apples is to avoid the transmission of epiphytic populations of E. amylovora to those
apples during packing, there is no ev idence that such transmission has ev er occurred. Even if it were
to occur, there is no scientific evidence that populations of E. amylovora would survive commercial
handling and transport. 230 Even assuming they would, comple tion of the pathway would require the
completion of an additional sequence of events wh ich is deemed unlikely and which has not been
scientifically established to date.
8.102 As a result, we conclude that while prope r sanitation may be required and seems to be
established commercial practice, the scientific ev idence does not justify chlorine disinfection of
packing facilities in order to prevent contamination of mature, symptomless apples by E. amylovora.
(vi) Fruit destined for Japan must be kept separate post-harvest from other fruit
8.103 The United States argues that there is no scientific justification for the requirement that apple
fruit destined for export to Japan be kept physically separate from other apple fruit.

229 Dr Hale, Transcript, para. 175, regarding New Zealand.
230 See in this respect our conclusion regarding Tsukamoto et al. (2005a), para. 8.57 above.

8.104 According to Japan, the separation requirement is not specific to fire blight but a natural
extension of the other control requirements. Referring to a statement by Dr Hale
231, Japan also recalls
that separation of fruit destined for Japan would not be difficult given that many fruit exporters
already have the capacity to separate fruit destined for different markets all over the world.
8.105 Like the preceding elements of Japan's compliance measure, this requirement seems to derive
from the perceived risk that apples destined for Jap an could be contaminated by other apples. We
consider that, if it were to occur, such contamination would only a ffect the surface of the fruit and the
bacteria would be unlikely to survive commercial handling, storage and transportation in sufficient
number to contaminate host plants in Japan. Th e experts consulted by th e Panel have generally
considered that preserving the integrity and security of consignments may be necessary in relation to
pests or diseases other than fire blight. 232 However, there was no eviden ce that an apple fruit could
become infected by E. amylovora as a result of a contact with infected fruit.233
8.106 The same considerations that lead us to concl ude that the requirement of chlorine disinfection
of packing facilities was not scientifically supported w ould lead us to conclude that this requirement
also is not justified by sufficient scientific eviden ce. Indeed, since scientific evidence and the experts
have confirmed that mature, symptomless apples are unlikely to harbour viable populations of
epiphytic E. amylovora, we conclude that the requirement of sep aration of fruit destined for Japan is
not supported by sufficient scientific evidence.
(vii) US plant protection officials must certify that fruits are free from fire blight and have been
treated post-harvest with chlorine
8.107 Japan argues that the issuance of phytosanitary certificates is standard regulatory practice and
does not result in any burden to US exporters. As a phytosanitary measure, the requirement is
necessarily procedural. The United States argues th at Japan maintains its post-harvest measures
without sufficient scientific evidence.
8.108 This requirement relates to certification by US authorities. However, it relates to two separate
aspects (a) certification that fruits destined for Japan are free from fire blight and (b) certification that
the fruits destined for Japan have been treated post-harvest with chlorine. Accordingly, we will first
address the question of certification in general. Thereafter, we will determine whether these two
certification requirements in the present case are justified by sufficient scientific evidence.
8.109 We recall that the United States informed us that it had no fixed, required form for a
phytosanitary certificate and that certificates were adjusted to the requirements of the importing
countries. The United States provided us with c opies of phytosanitary certificates which confirmed
that certain treatments had been performed for cod ling moth (methyl bromide and cold storage) and
E. amylovora (chlorine disinfection). We also recall that export certificates submitted by the United
States certified that exported apples complied with the US Apple Export Act.
8.110 We first note that phytosanitary certificates are common procedural requirements. We agree
with Japan that the issuance of phytosanitary certificates is standard regulatory practice. 234 Second,
whether a certification will be justified by scientific evidence will, in our opinion, generally depend

231 Dr Hale, Transcript, Annex 3, para. 175, regarding New Zealand.
232 Dr Smith, Transcript, Annex 3, para. 155; Dr Hale, Transcript, Annex 3, para. 157; Dr Smith,
Transcript, para. 158.
233 Dr Smith, Transcript, paras. 163 and 170; Dr Hayward, Transcript, para. 165; Dr Hale, Transcript,
234 Moreover, they may be required in order to certify the performance of quality controls, including
those aimed at ascertaining that exported apples are mature and symptomless.

on whether the measure, treatment, or action the co mpletion of which has to be certified is itself
justified by scientific evidence.
- Certification that exported apples are free of fire blight

8.111 In respect of the requirement that US authorities certify that exported apples are free from fire
blight, we first recall that fire blight is a r ecognized disease with serious consequences. The United
States does not contest this. We also recall that fire blight does not currently o ccur in Japan. Japan is
therefore scientifically justified in requesting certifi cation that apples exported to its territory be free
from that disease. 235
- Certification that exported apples have b een treated post-harvest with chlorine

8.112 As far as certification of chlorine treatment is concerned, we recall our findings regarding the
scientific justification for chlorine treatment as such: 236 that this requirement is not scientifically
justified with respect to fire blight. In app lication of our reasoning in paragraph 8.110 above, we
conclude that a certification requirement relating to a requirement which is itself not scientifically
justified cannot be scientifically justified either.
(viii) Japanese officials must confirm the US officials' certifications and inspect packing facilities
8.113 We note that Japan argues that inspection at export/import stages would offer security for the
risk of accidental shipment of observably inf ected apple fruit and inspection upon importation would
be beneficial for determining symptoms which may have developed during shipping. The United
States claims that inspection is a costly process borne by US exporters.
8.114 We first note that this requirement contains two distinct aspects: (a) confirmation of US
official certifications by Japanese officials; a nd (b) inspection of packing facilities by Japanese
officials. We further recall that confirmation under item (a) applies to two elements: (i) certification
that exported apples are free from fire blight and ( ii) certification that chlorine treatment has been
applied to exported apples. We will address each of these elements individually hereafter.
8.115 We are of the view that, as for certification, whether confirmation or inspection in relation to
a particular measure, treatment or action will be sc ientifically justified la rgely depends on whether
such measure, treatment or action is itself scientifically justified. In other words, Japan is entitled to
apply confirmation procedures in relation to requirements that Japan is scientifically justified to apply.
Confirmation and inspection proce dures can be legitimate phytosanitary instruments if they support
measures necessary to address legitimate phytosanitary risks.
- Confirmation by Japanese officials of certification by US officials
Freedom from fire blight

8.116 Regarding the confirmation of the certification by US officials that exported apples are free
from fire blight, we believe that the same reasoning should apply as for the certification requirement.
We therefore conclude that Japan is entitled to have its officials confirm US official certifications that

235 We note in this respect that the United States al ready applies the requiremen t that export apples be
fire blight-free under its domestic legislation. We recall that the requirement und er US law is for exported
apples to comply with the US Apple Export Act No. 1 Grade standard. The US Apple Export Act requires that
exported apples be mature and symptomless, and free of disease.
236 See paras. 8.95-8.97 above.

apples are free from fire blight as long as it does so in a manner compatible with the SPS Agreement,
in particular Annex C thereof.
Chlorine treatment

8.117 In contrast, as far as the confirmation by Japan ese officials of the certification of chlorine
treatment of exported apples by US officials is concerned, we recall our findings regarding the
scientific justification for chlorine treatment as such:
237 this requirement is not scientifically justified.
In application of our reasoning in paragraph 8. 115 above, we conclude that a confirmation
requirement applicable to a requirement which is itself not scientifically justified cannot be
scientifically justified either.
- Inspection of packing facilities by Japanese officials

8.118 As far as the inspection of packing facilities is concerned, we also recall our findings
regarding chlorine washing of apples, disinfecti on of packing facilities and separation of apples
destined for Japan, which are to our knowledge the requirements that have to be complied with in the
packing facilities. 238 We recall that none of the above-mentioned requirements was found to be
scientifically justified in relation to fire blight. As a result, we can only conclude that, to the extent
that it relates to these requirements, inspection of packing facilities is not supported by scientific
evidence.
(ix) Summary of findings
8.119 In conclusion, our findings in paragraphs 8.89, 8.94, 8.97, 8.102, 8.106, 8.111, 8.112, 8.116,
8.117 and 8.118 are that each element of the measur e at issue, with the exception of the requirement
that US plant protection officials certify that fruits are free from fire blight, and the related
confirmation by Japanese officials, is not supported by sufficient scientific evidence.
4. Conclusion on Article 2.2 of the SPS Agreement
8.120 On the basis of the scientific ev idence made available to us an d the opinions of the experts,
we conclude that the United States has made a prim a facie case that the compliance measure at issue
is not supported by sufficient scientific evidence. Japan has not rebutted this prima facie case.
8.121 This does not mean that no phytosanitary measure is justified. On the contrary, the United
States claims to export mature, symptomless apples. To the extent that this constitutes a phytosanitary
requirement, Japan would be entitled to verify that this is actually the case. We note that the need for
verification that only mature, symptomless apples are exported has been confirmed by the experts.239
D. ARTICLE 5.1 OF THE SPS AGREEMENT
1. Approach of the Panel
8.122 Although the United States referred to paragraphs 1, 2, 3, 5 and 6 of Article 5 of the SPS
Agreement in its request for establishment of a panel240 it has, in the course of these proceedings, only
raised claims in relation to para graphs 1 and 6 of Article 5. Th e US claims under Article 5.6 are

237 See paras. 8.95-8.97 above.
238 See paras. 8.95-8.106 above.
240 WT/DS245/11.

addressed in the following section. In this section, we will address the US allegation exclusively in
relation to a violation of Article 5.1.
8.123 Article 5.1 reads as follows:
"Members shall ensure that their sanitary or phytosanitary measures are based on an
assessment, as appropriate to the circumstances, of the risk to human, animal or plant
life or health, taking into account risk assessment techniques developed by the
relevant international organizations."
8.124 We recall that, in our review of the measure at issue under Article 5.1, we need to take into
account the context of this provision, which includes Article 5.2. 241 We are also mindful of the
Appellate Body's observation that Article 2.2 inform s Article 5.1 and that they should "constantly be
read together".242
8.125 We also recall that the notion of risk assessment is defined in paragra ph 4 of Annex A of the
SPS Agreement. Paragraph 4 of Annex A of the SPS Agreement reads as follows:
"4. Risk assessment - The evaluation of the likelihood of entry, establishment or
spread of a pest or disease within the te rritory of an importing Member according to
the sanitary or phytosanitary measures which might be applied, and of the associated
potential biological and economic consequences; or the evaluation of the potential for
adverse effects on human or animal health arising from the presence of additives,
contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs."
8.126 As has been noted by previous panels, the gene ral obligation reflected in Article 5.1 contains
two elements:
(a) an assessment of risk; and
(b) that Members must ensure that their SPS measures are based on such an assessment.
8.127 We note that the United States claims that Japan's September 2004 risk assessement (hereafter
the "2004 PRA") had failed to propose a valid scientifi c analysis of any "risk" of fire blight from the
commodity exported by the United States: mature, symptomless apple fruit. Instead, it relied on the
proposition that mature, symptomless, yet latently infected fruit would somehow reach the Japanese
market; a proposition unsupported by Japan's studies, as they did not demonstrate that such a
commodity could exist in the real world.
8.128 Japan argues that new evidence shows that the risk of completion of the pathway by US
(infected) apple fruit from a (severely) blighted orchar d was real, and even higher than thought at the
time of the Original Panel. The 2004 PRA cons idered and compared a variety of phytosanitary
measures to cope with the risk which had been est ablished through laboratory studies and the findings
and conclusions of the Original Panel.
8.129 The Panel notes that the practice in previous di sputes, and indeed that which was followed by
the Original Panel, was to consider first whethe r there existed an assessment, as appropriate to the
circumstances, of the risk to plant health and, secondly, whether there was a rational relationship

241 Article 5.2 provided, inter alia, that "In the assessment of risks, Members shall take into account
available scientific evidence".
242 Appellate Body Report on EC – Hormones, para. 180. The text of Article 2.2 of the SPS Agreement

between the measure and the risk assessment. Th e consideration of whether there exists a risk
assessment appropriate to the circumstances is not limited to a procedural review as to whether the
risk assessment followed a certain form, in casu the IPPC Standards.
243 More importantly, the
substance of the PRA, that is the scientific ev idence which is being evaluated, must support the
conclusions of the PRA. This is particularly releva nt in this case, given our analysis under Article 2.2
and our remark above on the Appellate Body's observation that Article 2.2 informs Article 5.1.
8.130 In light of the above, we will first examine th e substantive validity of the 2004 PRA and, as
appropriate, whether the PRA complies with certain procedural requirements attached to risk
assessments. Second, we will determine whether the measure at issue is based on a valid risk
assessment, in the sense of whether there is a rati onal relationship between the measure and the risk
assessment.
244
2. Existence of an assessment, as appropriate to the circumstances, of the risk to plant life
or health
(a) Summary of the arguments of the parties245
8.131 Japan claims that the revised 2004 PRA considered all of the issues raised by Dr Hale at the
Original Panel meeting with experts. In the 2004 PRA, Japan identified "US apple fruit" as a possible
pathway for introduction of fire blight. The revised PRA then examined the probability of infection
of US apple fruit, the survivability of E. amylovora during handling, storage and shipment and finally
the completion of the pathway. The revised PRA also reviewed and assessed the necessity of
individual elements of Japan's Systemic Approach.
8.132 The United States considers that, like the 19 99 PRA, the 2004 PRA fails to address the
commodity actually exported by the United States – mature, symptomless apple fruit – and instead
relies on the existence of a commodity that does not exist in nature: mature, symptomless, yet latently
infected apple fruit. In the absen ce of any scientific evidence of a fire blight-risk posed by mature,
symptomless apple fruit, any risk analysis which concludes otherwise would not "take into account
available scientific evidence," and would not me et the requirements for a risk assessment under
Article 5.1.
8.133 Japan argues that the 2004 PRA meets the requireme nt of specificity of the risk assessment.
The 2004 PRA took into account that apple fruit under the current US export practice might or might
not be actually "mature" in the horticultural sen se or "healthy" in the pathological sense, and
addressed these risks accordingly.
8.134 The United States argues that Japan's 2004 PRA ignored US pre-harvest and post-harvest
procedures for quality control. By failing to address actual US practices and disputing the
effectiveness of those practices, Japan failed to take into account ISPM 11.
(b) Analysis of the Panel
8.135 We note that, in section 2-5, the 2004 PRA reaches the following conclusions:

243 See para. 2.23, Appellate Body Report on Australia – Salmon, para. 121; Appellate Body Report on
244 Appellate Body Report on EC – Hormones, paras. 193-194.
245 A more detailed account of the arguments of the parties can be found in paras. 4.140-4.142 and
4.160 of this Report.

"[w]hen an export orchard is severely blighted, it appears not prudent to ignore the
risk of E. amylovora entering Japan through: (A) mature apple fruit internally
affected with E. amylovora; (B) immature apple fruit infected with E. amylovora; (C)
wounded/decayed apple fruit infected with E. amylovora . Once the bacteria enters
Japan in significant populations, the bacteria will likely establish and spread in Japan,
and cause great damage with extremely high economic consequences."
8.136 As mentioned above, the Appellate Body in EC – Hormones agreed with the general
consideration of the panel in that case that "Article 5.1 may be viewed as a specific application of the
basic obligations contained in Article 2.2 of th e SPS Agreement", including the obligation not to
maintain a measure without sufficient scientific ev idence. We recall that the scientific evidence
which is being evaluated must suppor t the conclusions of the 2004 PRA. 246 Therefore, if the
conclusions of the risk assessment are not sufficien tly supported by the scientific evidence referred to
in the 2004 PRA, then there cannot be a risk assessment appropriate to the circumstances 247, within
the meaning of Article 5.1.
8.137 In doing so, we are mindful that we are not supposed to conduct our own risk assessment or to
impose any scientific opinion on Japan. Like the panels in Australia – Salmon and Japan –
Agricultural Products II , we will only examine and evaluate the evidence, including the information
we received from the experts advising the Panel, a nd the arguments put before us in light of the
relevant WTO provisions.
8.138 We note that neither the United States nor the experts consulted by the Panel contest the
conclusion in the 2004 PRA that immature apple fruit can be infected with E. amylovora and that
wounded/decayed apple fruit can be infected with E. amylovora. This is not contested either in the
relevant literature. The parts of the 2004 PRA conclusions contested by the United States are:
(a) that apples exported from a severely blighted orchard could be mature but
nonetheless internally affected with E. amylovora; and
(b) that once the bacteria enters Japan in significant populati ons, the bacteria will likely
establish and spread in Japan (completion of the pathway).
8.139 We note that Japan relies in the 2004 PRA on the very studies we reviewed under Article 2.2.
We therefore need to determine whether the conc lusions of the 2004 PRA are actually supported by
the scientific evidence already addressed in the context of Article 2.2. The fact that we have found
that the measure at issue was main tained without sufficient scientific evidence does not, in our view,
enable us to dispense with making findings on Articl e 5.1. It remains for us to ascertain to what
extent Japan actually relied, in the 2004 PRA, on the studies we considered in our review of the
measure at issue in the context of Article 2.2.
8.140 We have already found, in the context of our examination of Japan's compliance measure
under Article 2.2 of the SPS Agreement, that the studies relied upon by Japan do not support Japan's
allegation that mature, symptomless apples can be late ntly infected. As confirmed by the experts, the
studies relied upon by Japan do not demonstrate that such latent infection could occur in real orchard
conditions. Likewise, we have also found that the studies relied upon by Japan do not support the
view that apple fruit would be likely to complete the pathway and contaminate host plants in Japan
under non-laboratory conditions. We stress the importance of our reference to "real orchard
conditions" and "non-laboratory c onditions". Indeed, as recalle d by the experts, laboratory
experiments may not reflect natural conditions, wh ereas production and trade in apples take place in

246 See para. 8.124, above.
247 See Panel Report on Australia – Salmon, para. 8.57.

the real world. Even if the studies relied upon by Japan actually confirmed latent infection and
completion of the pathway, their relevance for th e 2004 PRA could still be questioned, to the extent
that the assessment must be appropriate to the circ umstances. In this case, this implies that the
assessment reflect the real production and trade conditions.
8.141 In Section 2-3-1-1(2)(A) of the 2004 PRA, Jap an acknowledges the existence of a consensus
among foreign fire blight experts that mature, symp tomless apples are unlikely to be infected by the
disease. However, Japan relies on Azegami et al. (2005) as conclusive demonstration that mature
apple fruit are not immune or resistant to infection by E. amylovora in a laboratory study.
8.142 The conclusions drawn from Azegami et al. (2005) have been considered by the experts as
not reflecting orchard conditions.
248
8.143 The 2004 PRA also relies on Tsukamoto et al. (2005a) to establish the probability that E.
amylovora will survive during transportation and stor age (2004 PRA, section 2-3-1-2). The United
States has argued and the experts have confirmed that the experimental conditions in Tsukamoto et al.
(2005a) did not reflect commercial practice.
8.144 On the probability of E. amylovora transferring to and infecting suitable host plants (2004
PRA, section 2-3-1-4), Japan relies on Tsukamoto et al. (2005b). The United States has argued and
the experts have confirmed that Tsukamoto et al. (2005b) did not reflect natural conditions.249
8.145 On the basis of the evidence before us, in cluding the comments of the scientific experts
consulted by the Panel 250, we conclude that the new studies relied upon by Japan do not support the
2004 PRA conclusions that mature apples could be la tently infected, nor the conclusion in the 2004
PRA that the pathway would likely be completed. Since the scientific evidence relied upon by Japan
does not support the conclusions reached by Japan in its 2004 PRA, we conclude that the 2004 PRA is
not an assessment, as appropriate to the circumstances, of the risks to plant life or health, within the
meaning of Article 5.1 of the SPS Agreement.
8.146 Our approach is consistent with the view of the Appellate Body in EC – Hormones, whereby
a WTO Member may choose to rely on a minority scientific opinion. The scientific studies relied
upon by Japan cannot be assimilated to a minority opinion. As confirmed by the experts, these studies
can be deemed to be scientific in nature. Howeve r, they do not objectively support what Japan would
like to demonstrate, i.e. that mature apples could be latently infected and that the pathway would
likely be completed in real conditions.
8.147 With respect to procedural requirements, we not e the views expressed by the experts that the
2004 PRA formally followed most of the steps in ISPM 11. 251 However, having concluded that the
2004 PRA does not amount to a risk assessment because the scientific evidence relied upon does not
support the conclusions drawn by Japan in the PRA, we see no need to make findings as to whether
the 2004 PRA followed the procedural requirements applicable under the circumstances.

248 See paras. 8.47-8.52 above.
249 See para. 8.65 above.
250 See paras. 6.148-6.158; Dr Hale, Transcript, Annex 3, para. 35.
251 See Dr Hale, para. 6.147; Dr Hayward, para. 6.150: "The format of the revised PRA followed that of

3. Is the measure at issue based on a risk assessment?
(a) Summary of the arguments of the parties252
8.148 The United States argues that Japan cannot claim that its new measure adopted in June 2004
is based on a risk assessment dated September 2004.
8.149 Japan responds that the PRA was available in mi d-June, but the United States never requested
it. Japan maintains that the only difference betwee n the June PRA and the September revision is the
reference to the status of studies which were more formally finalized after June.
8.150 The United States claims that Japan failed to validate its revised measures through the
production of the new PRA. Measures premised on the existence of "mature, symptomless but
latently infected apples" and a non-existent pathway for introduction, establishment and spread of fire
blight do not rationally relate to a risk assessme nt that failed to identify any scientific evidence
supporting these premises.
8.151 According to Japan, its 2004 PRA shows that there is a rational relationship between the
evidence and the measure, consistent with Article 2. 2. Potential/actual infection of apple fruit poses a
risk of introduction of the disease.
(b) Analysis of the Panel
8.152 We first address the argument of the United States that the measure at issue is not based on
the 2004 PRA because the 2004 PRA is dated September 2004 whereas the measure at issue itself
dates back to 30 June 2004.
8.153 We note the argument of Japan that the 2004 PR A was actually completed by mid-June and
that the only difference between the June versi on and the September version of the PRA was the
reference to the status of the studies which were finalized after June 2004.
8.154 We recall that the Panel in Australia – Salmon (Article 21.5 – Canada) rejected an argument
similar to that of the United States. In th at case, the new measures had been published on
19 July 1999, whereas the Australian risk assessme nt for these amended measures was only published
in its final form on 12 November 1999. The Panel noted in that case that the amendments made in the
final version of the risk assessment did not alter th e substance or the conclusions of the report as
announced on 19 July 1999.
253
8.155 In the present case, Japan produced two vers ions of its PRA, one in June 2004 254 and one in
September 2004.255 A review of the two documents shows no substantive difference between the two
texts. As stated by Japan, the differences are of an editorial nature. The fact that the final version of
the 2004 PRA is subsequent to the adoption of th e measure at issue does not preclude the measure
from being based on the 2004 PRA. All substantiv e elements and conclusions of the PRA were
already included in the June version of the 2004 PRA. Japan states that this version was completed in
mid-June, i.e. before the adoption of the new measu res. Even though the PRA was not published, we
have no reason to question Japan's statement.

252 A more detailed account of the arguments of the parties can be found in paras. 4.158 to 4.161 of this
Report.
253 Panel Report on Australia – Salmon (Article 21.5 – Canada), paras. 7.76-7.77.
254 Exhibit JPN-17.
255 Exhibit JPN-3.

8.156 Second, with respect to the argument of the Un ited States that there is no rational relationship
between the measure at issue and the 2004 PRA, we recall our finding above that the 2004 PRA does
not amount to a risk assessment appropriate to the circumstances. We conclude, as a consequence,
that Japan's compliance measure is not based on a risk assessment, within the meaning of Article 5.1.
4. Conclusion on Article 5.1 of the SPS Agreement
8.157 For the reasons mentioned above, we conclude that the United States has made a prima facie
case that the compliance measure at issue is not "based on an assessment, as appropriate to the
circumstances, of the risk to [...] plant life or health" in Japan, within the meaning of Article 5.1 of the
SPS Agreement. Japan has not rebutted that prima facie case.
E. A
RTICLE 5.6 OF THE SPS AGREEMENT
1. Introduction
8.158 Article 5.6 reads as follows:
"Without prejudice to paragraph 2 of Artic le 3, when establishing or maintaining
sanitary or phytosanitary measures to achieve the appropriate level of sanitary or
phytosanitary protection, Members shall en sure that such measures are not more
trade-restrictive than required to achieve their appropriate level of sanitary or
phytosanitary protection, taking into account technical and economic feasibility."
[Footnote 3]
8.159 Footnote 3 to Article 5.6 reads as follows:
"For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than
required unless there is another measure, reasonably available taking into account
technical and economic feasibility, that achie ves the appropriate level of sanitary or
phytosanitary protection and is significantly less restrictive to trade."
8.160 We recall that the Original Panel exercised judi cial economy with respect to the US claim of
violation of Article 5.6 of the SPS Agreement.
256
8.161 In these proceedings, we need to take into account the request of the parties for specific
findings257 as well as the fact that we are at the complia nce stage. Moreover, as mentioned above, we
have decided to assess the legality of each elemen t of the measure. A finding under Article 5.6
becomes useful to assess the extent to which Japan may still need to modify its legislation in order to
comply with the recommendations and rulings of the DSB.258
8.162 In doing this, we shall apply the three-pronged test confirmed by the Appellate Body in
Australia – Salmon, i.e. determine whether there is an alternative SPS measure which:
(a) is reasonably available taking into account technical and economic feasibility;
(b) achieves the Member's appropriate level of sanitary or phytosanitary protection; and
(c) is significantly less restrictive to trade than the SPS measure contested.

256 Panel Report on Japan – Apples, para. 8.303.
258 See Appellate Body Report on Australia – Salmon, para. 223.

8.163 We now proceed with the review of the argumen ts of the parties for each of these elements
which, as recalled by the Appellate Body, have to be applied cumulatively.
2. "Reasonably available taking into account technical and economic feasibility"
(a) Summary of the arguments of the parties259
8.164 The United States claims that a measure restricti ng imports to Japan to mature US apple fruit
is reasonably available taking into account technical and economic feasibility. US federal laws (the
US Export Apple Act) and regulations already ensu re that export apple fruit are mature. US quality
control measures for apple fruit involve several pre-ha rvest and post-harvest steps that ensure that the
final exported product is mature apple fruit. The measures include: pre-harvest testing of soluble
solids, starch-iodine and/or firmness to ensure that apple fruit meet requirements for storage as well as
consumer demands; consultation w ith industry horticulturalists in making harvesting decisions;
storage on arrival at the packing facility in regular cold rooms or controlled atmosphere cold rooms;
packing according to one of two available protocols, "direct pack" or "pre-size"; and inspection by
Federal and/or Federally-licensed State inspectors. US apple producers do not ship immature apple
fruit since this type of shipment would be rejected by the importer, result in economic loss for the
exporter, adversely affect the reputation of US apple fruit in export markets, as well as potentially run
afoul of the provisions of the US Export Apple Act.
8.165 The United States further argues that the risk of failure of commercial quality controls is
hypothetical. Indeed there was no evidence that the billions of apple fruit shipped internationally (a
vast number of which were shipped without SPS measu res for fire blight) have ever introduced fire
blight into a fire blight-free area.
8.166 Japan argues that the United States proposes that products should meet "US No.1 Grade"
specifications but does not include specifics about test methods for verification. By failing to provide
test methods or ways to achieve the specification, the United States has not established any "measure"
worth considering. The alternative measure proposed by the United States is nothing other than the
"current commercial practice" which the industry appl ies elsewhere. Not only is there no evidence or
assurance that the products from this process will be "mature [and] symptomless" in terms of their
quality, but there is no evidence that the process sp ecifications achieve Japan's appropriate level of
protection (ALOP).
8.167 According to Japan, the concept of the mature, symptomless appl e fails to take into account
(potential) risks associated with (i) failure of the inspection mechanism at the shipping (release) stage,
or (ii) the new discovery of non-observable potential infection inside the apple fruit.
8.168 Japan further argues that the Un ited States seeks to rely on the previous export experience
with other countries to which the United States previously shipped apple fruit without any
phytosanitary measure and which did not suffer from th e spread of fire blight from the shipments.
Japan emphasizes that the natural environment of these areas (including Chinese Taipei) was
significantly different from that of Japan. Japan also notes that US inspectors in charge of
certification incur no risk of liability. Finally, Japan refers to instances where codling moth was
identified in shipments of US apples to Chinese Ta ipei as an illustration of failure in the US apple
export control.

259 A more detailed account of the arguments of the par ties can be found in paras. 4.164-4.173 of this
Report.

(b) Analysis of the Panel
8.169 We understand that the alternative measure proposed by the United States would consist of
requiring that only mature, symptomless apples be exported to Japan.
260 Such a requirement is
undeniably "reasonably available taking into account technical and economic feasibility" since this is
the requirement already applied by the United Stat es under the US Apple Export Act for all exports
abroad.
8.170 We note Japan's argument that the requirement that apples be mature and symtomless is only
a quality standard and the result of "current commer cial practices". We first note that this is not
completely correct since the standards are specified in legislation and subject to control by duly
licensed government inspectors. We also note that , as currently applied, the alternative measure
proposed by the United States appears to be a comb ination of public and private interventions. We
see no reason to reject a priori the alternative measure proposed by the United States simply because
it is the result of commercial practices rather th an of administrative requirements or because it
involves private operators and not exclusively publ ic authorities. However, in any case, sufficient
guarantees must be in place to provide adequate assurances that such practices or requirements,
whether public or private, will be adhered to.
8.171 We are of the view that, when considering whether an alternative measure is reasonably
available taking into account technical and econom ic feasibility, we should determine whether the
alternative measure would constitute an option reas onably available taking into account technical and
economic feasibility in the real world. In our opinion, the risk of incorrect enforcement is part of the
technical feasibility of a measure.
8.172 We are mindful of Japan's argument according to which the requirement that apples be mature
and symptomless is simply a "product specificati on" and not a phytosanitary measure because it
provides for no test methods for verification or ways to achieve the specification.
8.173 We agree that the requirement that apples be mature and symtomless could appear not to
constitute a phytosanitary measure at a first sight. However, the United States has provided scientific
evidence, and the experts have confirmed that, mature, symptomless apples do not harbour endophytic
or epiphytic populations of E. amylovora (i.e. a quantity of bacteria capable of transmitting fire
blight). As a result, requiring that apples be ma ture and symptomless is a phytosanitary measure to
the extent that such requirement is based on the scientific evidence that mature, symptomless apples
will not contaminate host plants.
8.174 With regard to Japan's argument that the United States does not provide for any specifications
in relation to mature, symptomless apples, and that no test method is provided, we first note that the
United States has informed us of the requirement of the US Apple Export Act for "US No. 1 Grade",
according to which the apple must be:
"[m]ature but not overripe, carefully handpi cked, clean, fairly-well formed; free from
decay, internal browning, internal breakdown, bitter pit, Jonathan spot, scald, freezing
injury [...] and broken skin or bruises except those which are incident to proper
handling and packaging [;] free from damage caused by sunburn or sprayburn, limb
rubs, hail, drought spots, scars, stem or calyx cracks, disease, insects, [or] damage by
other means."
261

260 See para. 8.174 below description of apples meeting US "No. 1 Grade", United States Standards for
Grades of Apples, 7 C.F.R., §§ 51.301, and 51.302.
261 United States Standards for Grades of Apples, 7 C.F.R. §§ 51.301, and 51.302.

8.175 We also note that the US legislation defines maturity as:
"The apples have reached the stage of development which will insure the proper
completion of the ripening process."262
8.176 Finally, we recall that the United States has in formed us that quality controls for apple fruit
involve several pre-harvest and post-harvest steps wh ich, according to the United States, ensure that
the final exported product is mature apple fruit. Thes e controls include: pre-harvest testing of soluble
solids, starch-iodine and/or firmness to ensure that apple fruit meet requirements for storage as well as
consumer demands; consultation w ith industry horticulturalists in making harvesting decisions;
storage on arrival at the packing facility in regular cold rooms or controlled atmosphere ("CA") cold
rooms; packing according to one of two availabl e protocols, "direct pack" or "pre-size"; and
inspection by Federal and/or Federally-licensed State inspectors.
8.177 In light of the above, we consider that the United States has sufficien tly demonstrated that
such quality controls could provide sufficient gua rantees to reasonably ensure that the product
exported is mature, symptomless apples.
8.178 While we disagree with Japan, for the reasons given in our discussion of scientific evidence
under Article 2.2, that mature apples could be inte rnally yet not visibly infected, thus making the
maturity requirement and the external control for symptoms insufficient, we cannot exclude that the
inspection system put in place by the United States might, on some occasions, fail to guarantee that all
exported apples are mature and symptomless. However, we note that there is no evidence that this has
occurred in the past.263 In particular Japan, as the party claiming that such risk exists, did not provide
evidence that this has ever happened. Japan only refe rs to the failure of US export controls in relation
to codling moth presence in shipme nts to Chinese Taipei. However, we note that the Appellate Body
agreed in the original case that there was no reason for the Panel to infer from the examples relating to
codling moth that apples other than mature, sy mptomless ones had ever been exported from the
United States to Japan. 264 Finally, we note the difference between an apple infested by codling moth
and an apple infected by E. amylovora. One will simply show a pin hole whereas the other one will
be rotten or shrivelled.
8.179 We also note that Japan failed to provide suffi cient scientific evidence that a contaminated
apple was likely to complete the pathway and allow the establishment or spread of fire blight in Japan.
In other words, even if the controls set up by th e United States were to fa il on a given occasion, the
fact that the importation of something else than a mature, symptomless apple in a shipment destined
for Japan could lead to the establishment and spread of fire blight is unlikely.265
8.180 Finally, we note that Japan may establish mech anisms appropriate to the circumstances and
compatible with the SPS Agreement, to ensure th at only mature, symptomless apples are imported
into its territory.
8.181 For these reasons, we consider that the United St ates has demonstrated that the requirement
that apples imported into Japan be mature and sy mptomless is an alternative measure that is
reasonably available taking into account technical and economic feasibility.

262 7 C.F.R. § 51.312.
264 Appellate Body Report on Japan – Apples, footnote 289.

3. "Significantly less restrictive to trade"
(a) Summary of the arguments of the parties
266
8.182 The United States argues that a restriction of imports to mature US apple fruit would be
significantly less trade-restrictive than the nine-measure import regime currently maintained by Japan.
The extremely low level of US apple fruit imports to Japan and the corresponding high levels of
economic risk to which US apple growers are exposed as a result of the measure at issue is evidence
of its trade restrictive effect. For example, if a si ngle fire blight strike is detected in a grower's
orchard, or in the buffer zone surrounding the orchard, the grower's investment is lost as his apple
fruit are no longer exportable to Japan. As a result of this risk, Japan's trad e-restrictive apple fruit
import regime has, over time, eliminated the incentiv e for US growers to attempt to export to Japan,
thus protecting Japanese growers from competition.
8.183 The United States further notes that the proposed alternative measure of restricting imports to
mature apple fruit is significantly less trade-rest rictive. Under the proposed alternative, entire
orchards would no longer be disqualif ied upon discovery of a single fire blight strike on a tree or in a
buffer zone, and all mature apple fruit would be eligible for export to Japan. If imports were
restricted to mature apple fruit, US apple growers w ould financially be able to compete to fill orders
for export to Japan.
8.184 Japan recalls that even though the Original Panel found that "mature, symptomless" is a
"relatively objective concept," it never found that what the US apple industry ships would be "mature,
symptomless" apple fruit. The issue of how to ensure that quality, or the relevant specifications and
test methods, is therefore an entirely open issue in this proceeding.
8.185 Japan stresses that "mature, symptomless appl e fruit" is a "product specification." These
types of specifications typically describe (i) required qualities/parameters and (ii) test methods to
ensure the qualities together with acceptable allowances. The Unite d States has not provided the
"mature, symptomless" specifications. Instead, it describes the "multiple pr ocesses" to ensure the
quality of apple fruit shipped by US growers and equates these processes with the specifications. The
United States calls the apples produced through a process compliant with these specifications as
"mature, symptomless," without regard to their tr ue quality. As such, the "mature, symptomless"
apples as defined by the United States might or might not match the definition of mature,
symptomless apple fruit.
(b) Analysis of the Panel
8.186 We note that the United States not only states th at the requirement to export only "mature,
symptomless apples" would be significantly less tr ade restrictive, it also suggests to apply this
requirement in lieu of the measure at issue. We can infer from this that the measure would actually be
"significantly less trade restrictive", or at least that it would satisfy the United States as being
significantly less trade restrictive. We note that Japan does not contest this. Actually, Japan criticizes
the US proposal by stating that it would be allowi ng the United States to export whatever it wants.
The United States has also asserted that the curre nt measure entailed costs for apple growers and
exporters.
8.187 We note that a requirement that the United St ates do what it claims to be already doing under
its national legislation would certainly be significa ntly less trade restrictive than a combination of
requirements which undeniably impose constraints on US exporters, as evidenced by the fact that, in

266 A more detailed account of the arguments of the par ties can be found in paras. 4.183-4.190 of this
Report.

spite of their desire to export apples to Japan, which seems to be at the origin of this case, US growers
have not exported apples since 2002.
8.188 We conclude that the United States has dem onstrated that the requirement to import only
mature, symptomless apples would be "significantly less trade restrictive" than the measures at issue.
4. Achieving Japan's "appropriate level of [...] phytosanitary protection"
(a) Summary of the arguments of the parties267
8.189 The United States claims that, in light of the scientific evidence relating to mature apple fruit
and fire blight, a measure restricting imports to mature apple fruit would achieve Japan's appropriate
level of phytosanitary protection, a level of pr otection that would allow Japan to prevent the
introduction of fire blight into Japan and maintain its fire-blight-free status.
8.190 Japan argues that its ALOP is the level of prot ection that provides a security level which will
not compromise Japan's status as a fire blight-fr ee country through commercial shipment of fresh
apple fruit, in the absence of illicit acts. Individu al travellers carrying small shipments (illegally)
might pose a threat, but the risk is insignificant and inevitable. Japan's ALOP against fire blight has
not changed even though the measure has been changed.
8.191 The United States argues that, as the Original Panel has found, scientific evidence does not
establish that mature, symptomless apple fruit woul d be infected with or harbor endophytic
populations of E. amylovora; that mature, symptomless apple fruit would be infested with epiphytic
populations of E. amylovora capable of transmitting fire blight; or that apple fruit, regardless of its
maturity, would serve as a pathway for the introduction of fire blight into Japan. Therefore, a measure
requiring shipments to be mature US apple fruit w ould meet Japan's ALOP because mature apple fruit
did not present a risk of introduction of fire blight into Japan.
8.192 Japan notes that the Original Panel's finding of completion of the pathway was made relative
to the measure then in place, and should not be in terpreted to imply a comprehensive denial of any
risk whatsoever. Moreover, Japan's new evidence, as interpreted togeth er with the previous evidence,
signal a risk posed by apples from a (severely) blighted orchard, which might not be healthy or
mature. The US proposal does not address the issues arising from permitting exportation of US apple
fruit from a "(severely) blighted" orchard, or the ri sk of infection or sorting errors for apples from
such an orchard.
(b) Analysis of the Panel
8.193 We first recall that it is for Japan to determin e its ALOP, and that we should not question it.
We note that Japan describes its ALOP as equivalent to the one that would result from an import ban
on commercial apples. We have already addressed th e question of the latent infection of mature
apples and reached the conclusion that it had not b een sufficiently scientifically established. Since
there is no evidence that mature, symptomless appl e fruit will complete the pathway for the entry,
establishment or spread of fire bli ght into Japan, we agree that the requirement that apples be mature
and symptomless theoretically meets Japan's ALOP. We note that Japan insists in its argumentation
on the risk attached to inspection error or non-co mpliance with the US prescription that exported
apples be mature and symptomless. We have ment ioned above that Japan ha d failed to demonstrate
that such error had occurred. Japan also failed to demonstrate before the Original Panel that apples,
even if they were not mature or symptomless, woul d be likely to complete the pathway. We do not

267 A more detailed account of the arguments of the par ties can be found in paras. 4.174-4.182 of this
Report.

believe that the United States requests Japan to accept whatever it exports. The United States not only
claims to export mature, symptomless apples, it applie s standards and tests to ensure that only mature,
symptomless apples are exported. Japan is free to establish mechanisms, as appropriate to the
circumstances and compatible with the SPS Agreem ent, to ensure that apples imported from the
United States are mature and symptomless.
8.194 With respect to the effectiveness of a requi rement that export be limited to mature,
symptomless apples, we recall that the experts have confirmed their previous conclusions that mature,
symptomless apples are unlikely to complete the pathway and contaminate a host plant in Japan.
268 In
other words, we agree with the United States, on the basis of the scientific evidence available and
having regard to the opinions of the experts, th at restricting imports exclusively to mature,
symptomless apples could meet Japan's ALOP.
8.195 With respect to the implementation of the measu re, we agree with Japan that its ALOP may
not be met by the US requirement if sufficient guarantees are not obtained in terms of implementation.
However, this has nothing to do with the require ment that apples be mature and symptomless, but
with the controls necessary to enforce the requirement.
8.196 We therefore conclude that the United States has demonstrated that the requirement that
apples imported into Japan be mature and symptoml ess is an alternative measure that could meet
Japan's ALOP.
5. Conclusion on Article 5.6 of the SPS Agreement
8.197 We note that Japan is concerned about th e importation of other apples than mature,
symptomless apples. We note that the United Stat es does not claim that it wants to export anything
other than mature, symptomless apples. Thus, what we are looking at is a measure consisting of
exporting mature, symptomless apples. If the United States only exports mature, symptomless
apples, the alternative measure proposed by the Unite d States meets the requirements of Article 5.6 as
a substitute to Japan's current measure.
8.198 We therefore conclude that the United States h as made a prima facie case that the measure at
issue does not comply with the requirement of Artic le 5.6. Japan has not rebutted this prima facie
case.
8.199 Finally, the Panel would like to clarify that even though it chose to examine the measure
proposed by the United States as an alternative th at would be reasonably available, meet Japan's
appropriate level of phytosanitary protection and would be significantly less trade restrictive, this does
not mean that this measure is necessarily the only one meeting the requirements of Article 5.6 and
available to Japan. However, it is an indication of a solution which could be available, provided
appropriate means of control are put in place to give adequate assurances that apples exported from
the United States are mature and symptomless.
F. A
RTICLE XI OF GATT 1994
1. Summary of the arguments of the parties269
8.200 The United States claims that, since Japan's measures are not legitimate SPS measures, they
are non-tariff trade barriers breaching Article XI of GATT 1994. According to the United States,

269 A more detailed account of the arguments of the par ties can be found in paras. 4.191-4.192 of this
Report.

there is no dispute that Japan's measures restrict imports of appl es through means other than duties,
taxes or other charges.
8.201 Japan argues that since the new measure is cons istent with the relevant Articles of the SPS
Agreement, it is presumed to be covered by Artic le XX(b) of GATT 1994, pursuant to Article 2.4 of
the SPS Agreement.
2. Analysis of the Panel
8.202 We have found above that the measure taken by Japan to comply with the recommendations
and rulings of the DSB violates Article 2.2, 5.1 and 5.6 of the SPS Agreement. We recall that the
Original Panel exercised judicial economy with respect to the United States claims relating to
Article XI of GATT 1994, in line with other panel's ex ercise of judicial economy in similar situations
of violation of the SPS Agreement. We note that none of the parties contested the decision of the
Original Panel before the Appellate Body in th is respect and see no reason why we should follow a
different approach under Article 21.5 of the DSU. We therefore exercise judicial economy with
respect to the United States claim regarding Article XI of GATT 1994.
8.203 Since we have found that the phytosanitary measure at issue is inconsistent with the
requirements of the SPS Agreement, we see no need to further examine whether this measure is also
inconsistent with Article XI of GATT 1994.
G.
ARTICLE 4.2 OF THE AGREEMENT ON AGRICULTURE
1. Summary of the arguments of the parties270
8.204 The United States claims that Japan's measures are also non-tariff barriers in breach of
Article 4.2 of the Agreement on Agriculture. Ther e was no dispute that Japan's measures fall within
the scope of footnote 1 to Article 4 of the Agreem ent on Agriculture, that they are restrictions on
imports of apples and that these restrictions have not been tariffied.
8.205 Japan argues that the new measure is consis tent with Article 4.2 of the Agreement on
Agriculture, as it is a phytosanitary measure fully c onsistent with the SPS Agreement and thus is
maintained under "other general, non-agriculture-s pecific provisions of GATT 1994 or of the other
Multilateral Trade Agreements in Annex 1A of th e WTO Agreement," as defined in footnote 1 to
Article 4.2.
2. Analysis of the Panel
8.206 We have found above that the measure taken by Japan to comply with the recommendations
and rulings of the DSB violates Article 2.2, 5.1 and 5.6 of the SPS Agreement. We recall that the
Original Panel exercised judicial economy with respect to the US claims relating to Article 4.2 of the
Agreement on Agriculture. We note that none of th e parties contested the decision of the Original
Panel before the Appellate Body in this respect and see no reason why we should follow a different
approach under Article 21.5 of the DSU. We theref ore exercise judicial economy with respect to the
US claim regarding Article 4.2 of the Agreement on Agriculture.
8.207 Since we have found that the phytosanitary measure at issue is inconsistent with the
requirements of the SPS Agreement, we see no need to further examine whether this measure is also
inconsistent with Article 4.2 of the Agreement on Agriculture.

270 A more detailed account of the arguments of the par ties can be found in paras. 4.193-4.194 of this
Report.

H. O
THER CLAIMS INCLUDED IN THE REQUEST FOR THE ESTABLISHMENT OF THE PANEL
8.208 The United States request for establishment of a panel in the context of its recourse to
Article 21.5 of the DSU also alleged the inconsistenc y of the measure at issue with Articles 2.3, 5.2,
5.3, 5.5, 6.1 and 6.2 of the SPS Agreement. Technically, these claims are part of our terms of
reference. We note, however, that in order for us to make findings on these claims, the United States
should have made a prima facie case for each of them. The United States did not develop any
argumentation regarding these provisions in its subsequent submissions.
8.209 Under those circumstances, we refrain from ma king any finding regardi ng the consistency or
not of the measure at issue with Articles 2.3, 5.2, 5.3, 5.5, 6.1 and 6.2 of the SPS Agreement.
IX. CONCLUSION
9.1 In light of the findings above, we reach the following conclusions:
(a) Japan, by maintaining the phyt osanitary measure at issue, violates Article 2.2 of the
SPS Agreement not to maintain phytosanita ry measures "without sufficient scientific
evidence, except as provided for in paragraph 7 of Article 5";
(b) Japan, by reaching, in the 2004 PRA, conclusions that are not supported by the
scientific evidence relied upon by Japan is ma intaining a phytosanitary measure that
is not based on an assessment, as appropriate to the circumstances, of the risk to plant
life or health, contrary to Article 5.1 of the SPS Agreement.
(c) Japan breaches Article 5.6 of the SPS Agreemen t, to the extent that the measure at
issue is more trade-restrictive than requir ed to achieve Japan's appropriate level of
phytosanitary protection, taking into account technical and economic feasibility.
9.2 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement [including the SPS Agreement], the action is
considered prima facie to constitute a case of nullific ation or impairment". We note that Japan failed
to rebut this presumption. We conclude that, to the extent Japan has acted inconsistently with the SPS
Agreement, it has nullified or impaired the bene fits accruing to the United States under the SPS
Agreement.
9.3 We recommend that the Dispute Settlement Body request Japan to bring the phytosanitary
measure in dispute into conformity with its obligations under the SPS Agreement.