JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
Document: Recourse to Article 22.2 of the DSU by the United States
Date: 20 July 2004
Document codes: WT/DS245/12
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 22.2 of the DSU by the United States

 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 22.2 of the DSU.

 Pursuant to Article 22.2 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), the United States requests authorization from the Dispute Settlement
Body ("DSB") to suspend concessions and other oblig ations with respect to Japan under the covered
agreements at a level of US $ 143.4 million on an annu al basis. This level of suspension is equivalent
to the level of nullification or impa irment of benefits accruing to the United States that results from
Japan's failure to bring its phytosanitary measure concerning imported US apples into compliance, by
30 June 2004, with the Agreement on the Application of San itary and Phytosanitary Measures
("SPS Agreement") or to otherwise comply with the recommendations and rulings of the DSB in
Japan - Measures Affecting the Importation of Apples (WT/DS245).

 On 3 June 2002, the DSB established a panel at the request of the United States to examine
Japan's phytosanitary measure concerning imported US apples. Both the Panel and the Appellate
Body in this dispute found Japan's measure to be inconsistent with its obligations under the SPS
Agreement. On 10 December 2003, the DSB adopte d the Appellate Body report and the report of the
Panel, as upheld by the Appellate Body report . The DSB recommendations and rulings include, inter
alia, the recommendation that Japan bring its measure into conformity with its obligations under the
SPS Agreement (; , para. 244; , para. 9.3).

 Pursuant to Article 21.3(b) of the DSU, the Un ited States and Japan agreed that the reasonable
period of time for Japan to implement the DSB's recommendations and rulings would expire on
30 June 2004 (WT/DS245/9). In the view of the United States, Japan failed to comply with the
recommendations and rulings of the DSB by the end of the reasonable period of time. Therefore, the
United States is entitled to redress under Article 22 of the DSU.

 In considering what concessions to suspend, the United States followed the principles and
procedures set forth in Article 22.3 of the DSU. As required by Article 22.4 of the DSU, the level of
suspension proposed is equivalent on an annual basis to the level of nullification or impairment of
benefits accruing to the United States resultin g from Japan's failure to bring its measure into
compliance or otherwise comply with the DSB's recommendations and rulings.

 The suspension of concessions and other obligations would occur in one or more of the
following:

 1. tariff concessions and re lated obligations under the General Agreement on Tariffs and
Trade 1994 on a list of products to be drawn from the list attached to this request;

 2. concessions and other obligations under the SPS Agreement; and

 3. concessions and other obligations under the Agreement on Agriculture.

ATTACHMENT

Note: The product descriptions supplied below for the items of the Harmonized Tariff Schedule of
the United States (HTSUS) are only for the convenience of the reader and are not intended to delimit
in any way the scope of the products contained in the chapter specified.

Chapter 1 Live animals
Chapter 2 Meat and edible meat offal
Chapter 3 Fish and crustaceans, molluscs and other aquatic invertebrates
Chapter 4 Dairy produce; birds eggs; natural honey; edible products of animal origin, not elsewhere
specified or included
Chapter 5 Products of animal origin, not elsewhere specified or included
Chapter 6 Live trees and other plants; bulbs, root s and the like; cut flowers and ornamental foliage
Chapter 7 Edible vegetables and certain roots and tubers
Chapter 8 Edible fruit and nuts; peel of certain fruit or melons
Chapter 9 Coffee, tea, mate and spices
Chapter 10 Cereals
Chapter 11 Products of milling industry; malt, starches, inulin, wheat gluten
Chapter 12 Oil seeds and oleaginous fruits; mis cellaneous grains, seeds and fruits; industrial o r
medicinal plants; straw and fodder
Chapter 13 Lac; gums, resins and other vegetable saps and extracts
Chapter 14 Vegetable plaiting materials; vegetabl e products not elsewhere specified or included
Chapter 15 Animal or vegetable fats and oils and their cleavage products prepared edible fats; animal
or vegetable waxes
Chapter 16 Preparations of meat, of fish or of cr ustaceans, molluscs or other aquatic invertebrates
Chapter 17 Sugars and sugar confectionery
Chapter 18 Cocoa and cocoa preparations
Chapter 19 Preparations of cereals, flour, starch or milk; bakers' wares
Chapter 20 Preparations of vegetables, fruit, nuts or other parts of plants
Chapter 21 Miscellaneous edible preparations
Chapter 22 Beverages, spirits and vinegar
Chapter 23 Residues and waste from the food industries; prepared animal feed
Chapter 24 Tobacco and manu factured tobacco substitutes
Chapter 33 Essential oils and resinoids; pe rfumery, cosmetic or toilet preparations
Chapter 35 Albuminoidal substances; modified starches; glues; enzymes
Chapter 38 Miscellaneous chemical products
Chapter 41 Raw hides and skins (other than fur skins) and leather
Chapter 42 Articles of leather; saddlery and harnes s; travel goods, handbags and similar containers;
articles of animal gut (other than silkworm gut)
Chapter 43 Furskins and artific ial fur; manufactures thereof
Chapter 44 Wood and articles of wood; wood charcoal
Chapter 45 Cork and articles of cork
Chapter 46 Manufactures of straw, of esparto or of other plaiting materials; basketware and
wickerwork
Chapter 50 Silk
Chapter 51 Wool, fine or coarse animal hair; horsehair yarn and woven fabric
Chapter 52 Cotton