World Trade
Organization
|
WT/DS76/R
27 October 1998
(98-4093)
Original: English |
Japan � Measures Affecting Agricultural Products
Report of the Panel
The report of the Panel on Japan � Measures Affecting Agricultural
Products is being circulated to all Members, pursuant to the DSU. The
report is being circulated as an unrestricted document from 27 October
1998 pursuant to the Procedures for the Circulation and Derestriction of
WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance
with the DSU only parties to the dispute may appeal a panel report. An
appeal shall be limited to issues of law covered in the Panel report and
legal interpretations developed by the Panel. There shall be no ex
parte communications with the Panel or Appellate Body concerning
matters under consideration by the Panel or Appellate Body.
Note by the Secretariat: This Panel Report shall
be adopted by the Dispute Settlement Body (DSB) within 60 days after the
date of its circulation unless a party to the dispute decides to appeal or
the DSB decides by consensus not to adopt the report. If the Panel Report
is appealed to the Appellate Body, it shall not be considered for adoption
by the DSB until after the completion of the appeal. Information on the
current status of the Panel Report is available from the WTO Secretariat.
Table of Contents
I. Introduction
II. Factual Aspects
A. General
1. Codling moth
2. Methyl bromide
3. Technical and scientific terms used in the parties'
submissions
B. Japan's Plant Protection Law and the
Enforcement Regulation
1. General
2. Initial lifting of prohibition
3. Lifting of prohibition for additional
varieties
C. Relevant International Standards, Guidelines
and recommendations - the IPPC
1. General
2. Guidelines for Pest Risk Analysis
III. Claims of the Parties
IV. Arguments of the Parties
A. The scope of the Dispute
B. The measure at issue
C. Application of the SPS Agreement
D. Burden of Proof
E. Articles 2.2, 5.1 and 5.2
1. General
2. Article 2.2
a. General
b. Probit 9, dose-mortality tests and
confirmatory tests
i. Nectarines
ii. Cherries
c. CxT Values
d. Comparison with other products
3. Article 5.1
4. Article 5.2
F. Article 5.6
G. Article 5.7
H. Article 7 (Annex B)
I. Article 8 (Annex C)
V. Summary of Third Party Submissions
A. Brazil
B. European Communities
C. Hungary
VI. Panel's Consultation with Scientific Experts
A. Panel's procedures
B. Questions to the Experts and their Compiled
Responses (Summarized)
C. Additional written questions sent to the
experts advising the Panel
1. Additional question on walnuts
2. Confirmation of the Panel's understanding
of scientific evidence and opinions
VII. Interim Review
A. Comments by the United States
B. Comments by Japan
VIII. Findings
A. Claims of the parties
B. Japan's plant protection regime
C. The panel's preliminary ruling of 2 april
1998
D.The scope of the measure in dispute
E. Matters not in dispute
F. Scientific basis and risk assessment
(articles 2.2, 5.1, 5.2 and 5.7)
1. The SPS provisions invoked and their
relationship
2. Scientific basis
a. Claims and arguments by the Parties
i. The United States
ii. Japan
b. Is the varietal testing requirement
maintained without "sufficient scientific evidence" in the
sense of Article 2.2?
i. The meaning of a measure
"maintained without sufficient scientific evidence"
ii. The opinions of the scientific
experts advising the Panel
iii. Evaluation by the Panel
c. Is the varietal testing requirement a
provisional measure under Article 5.7?
i. Arguments by the parties
ii. Evaluation by the Panel
d. The Panel's conclusion under Article
2.2
3. Risk assessment
G. Measures not more trade-restrictive than
required (article 5.6)
1. Arguments by the parties
2. Elements under Article 5.6
3. Alternative measures before the Panel
a. Testing by product
b. Alternatives derived from the testing
of possible differences in sorption
i. Monitoring a predetermined CxT
value during commercial treatment
ii. Determine whether the sorption
level of additional varieties differs from that of the already
approved variety
4. Does any alternative meet all of the
elements in Article 5.6?
a. Testing by product
b. Alternatives derived from the testing
of possible differences in sorption
i. Monitoring a predetermined CxT
value during commercial treatment
ii. Determine whether the sorption
level of additional varieties differs from that of the already
approved variety
c. The Panel's conclusion under Article
5.6
H. Transparency of phytosanitary measures
(Article 7 and Annex B of the SPS Agreement)
1. Arguments by the parties
2. Evaluation by the Panel
3. The Panel's conclusion under Article 7
I. Obligations with respect to control,
inspection and approval procedures (Article 8 and Annex C of the SPS
Agreement)
J. Concluding Remark
IX. Conclusions
X. Annex A - Transcript of the Joint Meeting
with Experts
I. Introduction
- In a communication dated 7 April 1997, the United States requested
consultations with Japan pursuant to Article 4 of the Understanding on
Rules and Procedures Governing the Settlement of Disputes
("DSU"), Article 11 of the Agreement on the Application of
Sanitary and Phytosanitary Measures ("SPS Agreement"),
Article XXIII of the General Agreement on Tariffs and Trade 1994
("GATT 1994"), and Article 19 of the Agreement on
Agriculture regarding the prohibition by Japan of imports of certain
agricultural products.
1
- The United States specifically alleged that, for each agricultural
product for which Japan required quarantine treatment, Japan
prohibited the importation of each variety of that product until the
quarantine treatment had been tested for that variety, even though the
treatment had proven effective with respect to other varieties of the
same product. The United States claimed that Japan's prohibition
adversely affected exports of US agricultural products, and,
furthermore, that Japan's measure appeared to be inconsistent with the
obligations of Japan under the SPS Agreement, the GATT 1994 and the
Agreement on Agriculture. The provisions of these agreements with
which these measure appeared to be inconsistent included, but were not
limited to: (i) SPS Agreement, Articles 2, 4, 5 and 8; (ii) GATT 1994,
Article XI; and, (iii) the Agreement on Agriculture, Article 4. The
measures also appeared to nullify or impair benefits accruing to the
United States directly or indirectly under the cited agreements.
Consultations were held on 5 June 1997, but failed to settle the
dispute.2
- In a communication dated 3 October 1997, the United States requested
the Dispute Settlement Body ("DSB") to establish a panel
with standard terms of reference as set out in Article 7 of the DSU. 3
The US claims of inconsistency in their Request for the Establishment
of a Panel were identical to those set out in their request for
consultations, except for an additional claim of inconsistency under
Article 7 of the SPS Agreement.
- On 18 November 1997, the DSB established a panel pursuant to the
request of the United States, in accordance with Article 6 of the DSU.
4 In accordance with
Article 7.1 of the DSU, the terms of reference of the Panel were:
"To examine, in the light of the relevant provisions of the
covered agreements cited by the United States in document WT/DS76/2,
the matter referred to the DSB by the United States in that document
and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those
agreements."
- On 18 December 1997, the Panel was constituted with the following
composition:
Chairman: |
Mr. Kari Bergholm |
Panelists: |
Mr. Germain Denis |
|
Mr. Eir�kur Einarsson |
- The European Communities, Hungary and Brazil reserved their right to
participate in the Panel proceedings as third parties.
- The Panel met with the parties on 2 and 3 April 1998. It met with
third parties on 3 April 1998. The Panel consulted scientific and
technical experts and met with them on 23 June 1998. The Panel held a
second meeting with the parties on 24 June 1998.
- On 3 July 1998 the Chairman of the Panel informed the DSB that the
Panel had not been able to issue its report within six months. The
reasons for that delay were stated in document WT/DS76/4.
- The Panel issued its interim report on 6 August 1998. On 21
September 1998, on request by Japan, an interim review meeting was
held with the parties. The Final Report was circulated to the parties
on 6 October 1998. The report was circulated to Members in all three
languages on [27 October 1998].
II. Factual Aspects
A. General
1. Codling moth
- Codling moth (Cydia pomonella) is a pest which invades
apples, cherries, nectarines and other fruit crops. Newly-hatched
larvae of codling moth are known to enter into the fruit. In the
United States, the codling moth is a pest of apples and walnuts; it is
also known, on occasion, to infest nectarines and cherries. Other
hosts of codling moth include apricots, plums, pears and quinces.
- There are four identifiable life stages of the codling moth: egg,
larva, pupa and adult. Mated female adults lay their eggs on a
suitable substrate such as leaves, nuts or fruit. All life stages are
highly dependent upon temperature for development; the higher the
temperature, the more rapid the development. After the eggs hatch,
newly hatched first stage (instar) larvae find a suitable host to
complete their development. They usually burrow into the host. The
larvae will molt (shed their skin) four times thereafter inside the
fruit, thus producing five larval growth phases called instars. When
mature, the fifth instar larvae will exit the host to form a pupae
within a silken cocoon. The cocoon is usually formed on the bark of
the tree or in the litter at the base of the host plant.
- The next generation of adult moths will exit from the pupae in 1-2
weeks. Depending on temperature, emergence may take longer. Under
optimum conditions, developmental time from egg to adult is about
30-40 days. As daylight hours become shorter (10 hours light; 14 hours
dark) during the late summer and fall, mature fifth instar larvae will
exit the host, but hibernate through the winter as mature larvae
within cocoons on bark or litter at the tree base. This larval
hibernation (diapause) is a mechanism for survival through the winter.
The diapausing larvae will form pupae in the spring when daylight
hours and temperature begin to increase toward 14 daylight hours or
more. Depending upon temperature, moths will emerge in three to four
weeks after the pupae are formed.
- The seasonality of host fruits is important vis-�-vis what life
stages of the codling moth might be expected to occur at harvest. In
the United States, walnuts are harvested after diapause has been
induced in mature larvae. Thus the quarantine treatment for codling
moth in walnuts is more severe (using comparatively higher levels of
fumigant) than that required for fruits such as cherries and
nectarines.
- The fruit development of apples coincides with the time, mid-to-late
summer, during which the codling moth is numerous. Severe economic
losses can occur if codling moth is not adequately controlled in the
field. The quarantine treatment applied to harvested apples is a
multiple treatment involving cold temperature and a methyl bromide
treatment. The cold treatment destroys most of the codling moth eggs
and the fumigation destroys any remaining larvae.
- In contrast to walnuts and apples, cherries are an early
spring/early summer crop and only eggs or non-diapausing larvae would
be expected to be found. With regard to nectarines, the harvest of
nectarines in the United States begins in May and ends in late July to
early August, before diapause is induced.
- The Japanese archipelago forms a chain spreading across 3,000 km.
from the north to the south between the latitudes 20 to 45 degrees
north. Although most of Japan belongs to the temperate monsoon zone,
the northern island of Hokkaido lies in a sub-arctic zone and a
subtropical climate prevails in the southern edge of the South-western
and Ogasawara islands. Ocean currents and prevailing westerly winds
contribute to a diversity of climatic conditions. While codling moth
is prevalent throughout the temperate zone, the pest has not been
discovered in Japan.
- There is no dispute between the parties that Japan is free of
codling moth and that it is a pest of quarantine significance to
Japan.
2. Methyl bromide
- The Montreal Protocol on Substances that Deplete the Ozone Layer
(the "Montreal Protocol") requires developed countries to
phase-out the production and importation of methyl bromide beginning
in 1999 and ending, with a total phase-out, on 1 January 2005.
Developing countries will freeze the production and importation of
methyl bromide as of 1 January 2002 and begin a step-down reduction in
2005, with total phase-out by 2015. US law currently calls for a
phase-out of methyl bromide production and importation by 1 January
2001.
- Notwithstanding the above, the use of methyl bromide for quarantine
and pre-shipment applications is exempted from the phase-out schedule.
5 The US Administration
has expressed willingness to consult with the US Congress on changes to
US law if alternatives do not exist for control of key pests as the 2001
phase-out date approaches.
3. Technical and scientific terms used in the parties' submissions
CxT value (Concentration times time)
- The CxT value for a fumigation is an expression of the relationship
between fumigant gas concentration and time in the fumigation
enclosure or chamber. It is an expression of the active gas dosage to
which the pest or test organism is exposed during the time of the
treatment. Because the concentration decays during the fumigation
time, "concentration" is an average value derived from a
number of measurements and requires temperature, load and humidity to
be specified for proper definition.
Dose-mortality test (DMT)
- The dose-mortality test is an experimental procedure in which the
response of an organism is estimated for a series of
mortality-inducing doses of a specified treatment. Where possible,
individual dose-mortality tests target a specific stage of an organism
as the susceptibility to a treatment can vary between life stages. The
main purposes of dose-mortality testing are to produce data for
analysis used for the determination of parameters categorizing the
response of an organism, and the comparisons of efficacies of
different treatments. In developing quarantine treatments against
codling moth for products exported to Japan, dose-mortality testing is
used to produce data for analysis for the determination of the least
vulnerable stage of the pest and the prediction of a treatment dose to
meet a required level of efficacy. The target organism test unit is
usually a sub-sample of 20 � 50 insects; the test is typically
replicated three times, at each dose level. For a satisfactory result,
five or more dose levels are usually required, evenly spaced between 0
and 100 per cent mortality.
Fumigation
- To kill pathogens or insects by using gas or fumes. A fumigant is a
pesticide which acts upon the target pest as a gas. For the purposes
of this report, the fumigant is methyl bromide (MB), and "MB
treatment" refers to fumigation with methyl bromide.
Probit analysis, LD (lethal dose) and probit 9
- Probit analysis is a biometrical technique for analysis of
experimental data in which the quantitative response of an organism,
usually expressed as mortality, is subjected to regression analysis
with respect to treatment dose. Mathematical transformation of
mortality to probability units, termed "probits", assists in
conversion of the normal distribution (curve) of the response data to
a linear distribution to facilitate analysis. Dose data is frequently,
but not invariably, logarithmically transformed for the same purpose
of linearity. The outcomes of probit analysis are values such as LD
(lethal dose), LC (lethal concentration) or LT (lethal time) for a
nominated proportion of the population (for example, 50 per cent or
99.99 per cent), together with nominated confidence or fiducial
intervals (for example, 95 per cent).
6
The main purposes of probit analysis are (i) to define susceptibility of
a population of target organisms to a treatment in terms of LD, LC or LT
values; (ii) subsequent comparisons of susceptibility of populations of
target organisms, varying response according to substrates, or
treatment; and, (iii) the prediction of the dose required for a specific
level of treatment efficacy.
- Probit 9 is equivalent to a target level of mortality, or level of
treatment efficacy, of 99.9968 per cent mortality.
Sorption
- The sum of adsorption, absorption and chemisorption. Adsorption is a
physical surface effect and results from the attraction of molecules
to the surface of products 7
and other materials in the fumigation chamber. Absorption is also a
physical process whereby the chemical enters into the product and
other materials in the fumigation chamber. Chemisorption is an
irreversible reaction in which residues are left in the fumigated
products and materials. When the pest takes in the fumigant while in a
product, or takes in the fumigant while on the surface of the fruit,
it may die.
Variety
- A category within a species, based on some hereditary difference. 8
To continue with Japan's Plant Protection Law and
the Enforcement Regulation
1 WT/DS76/1 (Request for
Consultations by the United States).
2 WT/DS76/2 (Request for
the Establishment of a Panel by the United States).
3 WT/DS76/2 (Request for
the Establishment of a Panel by the United States).
4 WT/DS76/3 (Constitution
of a Panel Established at the Request of the United States).
5 Article 2H:6 of the
Montreal Protocol.
6 Dr. Heather referred to:
Steel, R.G.D. and Torrie, J.H., Principles and Procedures of Statistics
with Special Reference to the Biological Sciences, McGraw-Hill (1960)
p.22.
7 In this report the word
"product" is used instead of "commodity" or
"species".
8 Webster's Encyclopaedic
Unabridged Dictionary of the English Language, 1996 Random House. The
International Convention for the Protection of New Varieties of Plants of
2 December 1961, Article 1, (vi) defines "variety" as: "[A]
plant grouping within a single botanical taxon of the lowest known rank,
which grouping, irrespective of whether the conditions for the grant of a
breeder�s right are fully met, can be � defined by the expression of
the characteristics resulting from a given genotype or combination of
genotypes, - distinguished from any other plant grouping by the expression
of at least one of the said characteristics and � considered as a unit
with regard to its suitability for being propagated unchanged �
.".