JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
Document: Recourse to Article 21.5 of the DSU by the United States Request for the Establishment of a Panel
Date: 20 July 2004
Document codes: WT/DS245/11
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

Request for the Establishment of a Panel

 The following communication, dated 19 July 2004, from the delegation of the United States
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.

 On 10 December 2003, the Dispute Settlement Body ("DSB") adopted its recommendations
and rulings in the dispute Japan - Measures Affecting the Importation of Apples (WT/DS/245).
Having found Japan's phytosanitary measure for impo rted 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 br ing its measure into conformity with that
agreement.

 On 10 February 2004, the United States and Japan concluded an agreement pursuant to
Article 21.3(b) of the Understanding on Rules and Procedures Governing the Settlement of Disputes
("DSU") () that the reasonable period of time available to Japan to implement the DSB's
recommendations and rulings would expire on 30 June 2004. Accordingly, Japan adopted new
measures, ostensibly to comply with the DSB's recommendations and rulings, on that date.

 The United States considers that Japan has failed to implement the DSB's recommendations
and rulings by failing to bring its phytosanitary me asure on imported US apples, which restricts the
import of such apples in connection with fire blig ht or the fire blight disease-causing organism,
Erwinia amylovara , into compliance with its obligations under the SPS Agreement. The United
States therefore requests that a panel be established pursuant to Article 21.5 of the DSU.

 Japan's new measures retain almost all of the phytosanitary restrictions of the original
measure, which was found by the Appellate Body and Panel to be inconsistent with Japan's
obligations under the SPS Agreement. The restrictions include:

 1. the prohibition of imported apples other than those produced in designated orchards
in the US States of Washington and Oregon;

 2. the prohibition of imported apples from orch ards in which any fire blight is detected;

 3. the prohibition of imported apples from any orchard (whether or not it is free of fire
blight) should fire blight be detected in a "buffer zone" surrounding the orchard;

 4. the requirement that export orchards be inspected for the presence of fire blight for
purposes of applying the above-mentioned prohibitions;

 5. a post-harvest surface treatment of exported apples with chlorine;

 6. production requirements, such as chlori ne treatment of the interior of the packing
facility;

 7. post-harvest separation of apples for export to Japan from those apples for other
destinations;

 8. a requirement that US plant protection offi cials certify or declare that the apples are
free of quarantine pests, not infected/infested with fire blight, and have been treated
with chlorine; and

 9. a requirement that Japanese official s confirm that the ce rtification, orchard
designation and chlorine treatment have be en properly administered and inspect the
disinfestation and packing facilities.

 The measures through which Japan now maintain s its restrictions on imported US apples are:

 1. the Plant Protection Law (Law No. 151; enacted 4 May 1950), as amended;

 2. the Plant Protection Law Enforcement Regulations (Ministry of Agriculture, Forestry
and Fisheries Ordinance No. 73; enacted 30 June 1950), as amended;

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

 4. related detailed rules and regulation s, including the "Detailed Rules for Plant
Quarantine Enforcement Regulation Concerning Fresh Fruit of Apple Produced in the
United States of America" (as amended on 30 June 2004).

 Japan's phytosanitary measures on imported US apples appear to be inconsistent with its
obligations under the SPS Agreement, the General Agreement on Tariffs and Trade 1994 , and the
Agreement on Agriculture . The provisions of these agreements with which Japan's measures appear
to be inconsistent include:

 1. Articles 2.2, 2.3, 5.1, 5.2, 5.3, 5.5, 5.6, 6.1 and 6.2 of the Agreement on the
Application of Sanitary and Phytosanitary Measures;

 2. Article XI of the General Agreement on Tariffs and Trade 1994; and

 3. Article 4.2 of the Agreement on Agriculture.

 Accordingly, there is "disagreement as to the existence or consistency with a covered
agreement of measures taken to comply with the recommendations and rulings" of the DSB between
the United States and Japan, within the terms of Arti cle 21.5 of the DSU. The United States therefore
seeks recourse to Article 21.5 of the DSU in this matter.