[Federal Register Volume 69, Number 155 (Thursday, August 12, 2004)]
[Notices]
[Pages 49942-49943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18457]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket No. WTO/DS-245]


WTO Dispute Settlement Proceeding Regarding Japanese Measures 
Affecting the Importation of Apples

AGENCY: Office of the United States Trade Representative.

ACTION: Notice; request for comments.

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SUMMARY: The Office of the United States Trade Representative 
(``USTR'') is providing notice that on July 30, 2004, at the request of 
the United States, the Dispute Settlement Body (DSB) of the World Trade 
Organization (WTO) established a dispute settlement panel under the 
Marrakesh Agreement Establishing the WTO to examine whether Japan has 
implemented the recommendations and rulings of the DSB in a dispute 
involving Japanese phytosanitary measures restricting the importation 
of U.S. apples. Japan justifies the measures as relating to the plant 
disease fire blight and the fire blight-causing organism, Erwinia 
amylovora. On December 10, 2003, the DSB adopted the findings of the 
panel and Appellate Body in this proceeding, which found that Japan's 
apple import regime was maintained in breach of various provisions of 
the WTO Agreement on the Application of Sanitary and Phytosanitary 
Measures (``SPS Agreement''). Japan issued revised measures on June 30, 
2004 in response to the DSB's recommendations and rulings. The United 
States subsequently requested the establishment of the dispute 
settlement panel because it believes that Japan's revised measures do 
not comply with the DSB's recommendations and rulings or the SPS 
Agreement. USTR invites written comments from the public concerning the 
issues raised in this dispute.

DATES: Although USTR will accept any comments received during the 
course of the dispute settlement proceedings, comments should be 
submitted on or before September 1, 2004 to be assured of timely 
consideration by USTR.

ADDRESSES: Comments should be submitted (i) electronically, to 
[email protected], Attn: ``Japan Apples'' in the subject line, or (ii) by 
fax, to Sandy McKinzy at (202) 395-3640, with a confirmation copy sent 
electronically to the email address above.

FOR FURTHER INFORMATION CONTACT: Jay T. Taylor, Assistant General 
Counsel, Office of the United States Trade Representative, 600 17th 
Street, NW., Washington, DC 20508, (202) 395-3150.

SUPPLEMENTARY INFORMATION: Section 127(b) of the Uruguay Round 
Agreements Act (``URAA'') (19 U.S.C. Sec.  3537(b)(1)) requires that 
notice and opportunity for comment be provided after the United States 
submits or receives a request for the establishment of a WTO dispute 
settlement panel. If a dispute settlement panel is established pursuant 
to the WTO Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), the panel, which would hold its meetings 
in Geneva, Switzerland, would be expected to issue a report on its 
findings and recommendations within approximately three months of the 
date it is established.

Prior WTO Proceedings

    On December 10, 2003, the WTO DSB adopted the reports of a dispute 
settlement panel and the WTO Appellate Body in a dispute brought by the 
United States challenging Japanese phytosanitary restrictions on the 
import of U.S. apples in connection with fire blight or the fire 
blight-causing organism, Erwinia amylovora. The panel found, and the 
Appellate Body confirmed, that Japan's restrictions were not consistent 
with its obligations under the SPS Agreement. The DSB recommended that 
Japan revise its measure accordingly. The dispute settlement panel and 
Appellate Body reports are publicly available in the USTR reading room 
and on the WTO Web site http://www.wto.org.

Article 21.5 Proceeding

    The United States and Japan agreed that Japan would have until June 
30, 2004 as the reasonable period of time to implement the DSB's 
recommendations and rulings. The United States and Japan met several 
times during that period in an attempt to reach an agreement regarding 
Japan's restrictions on U.S. apples, but were unable to agree on a 
satisfactory result. Japan issued revised measures on June 30, which 
the United States believes fail to comply with the DSB's 
recommendations and rulings and the SPS Agreement. Accordingly, the 
United States requested the establishment of an Article 21.5 compliance 
panel to determine the WTO-consistency of Japan's revised measures. The 
DSB established the panel on July 30, 2004.
    The European Communities, New Zealand, Chinese Taipei, and 
Australia have indicated their interest to participate in the dispute 
as third parties.
    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: the prohibition of imported 
apples other than those produced in designated orchards in the U.S. 
States of Washington and Oregon; the prohibition of imported apples 
from orchards in which any fire blight is detected; 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; the requirement that export orchards be inspected for the 
presence of fire blight for purposes of applying the above-mentioned 
prohibitions; a post-harvest surface treatment of exported apples with 
chlorine; production requirements, such as chlorine treatment of the 
interior of the packing facility; post-harvest separation of apples for 
export to Japan from those apples for other destinations; a requirement 
that U.S. plant protection officials certify or declare that the apples 
are free of quarantine pests, not infected/infested with fire blight, 
and have been treated with chlorine; and a requirement that Japanese 
officials confirm that the certification, orchard designation and 
chlorine treatment have been properly administered and inspect the 
disinfestation and packing facilities. The United States believes that 
Japan's revised measures are inconsistent with Articles 2.2, 2.3, 5.1, 
5.2, 5.3, 5.5, 5.6, 6.1 and 6.2 of the SPS Agreement, Article XI of the 
General Agreement on Tariffs and Trade 1994 and Article 4.2 of the 
Agreement on Agriculture.

Public Comment: Requirements for Submissions

    Interested persons are invited to submit written comments 
concerning the issues raised in this dispute. Persons submitting 
comments may either send one copy by fax to Sandy McKinzy at (202) 395-
3640, or transmit a copy electronically to [email protected], with 
``Japan Apples (DS245)'' in the subject line. For documents sent by 
fax, USTR requests that the submitter provide a confirmation copy to 
the electronic mail address listed above.
    USTR encourages the submission of documents in Adobe PDF format, as 
attachments to an electronic mail. Interested persons who make 
submissions by electronic mail should not provide separate cover 
letters; information that might appear in a cover

[[Page 49943]]

letter should be included in the submission itself. Similarly, to the 
extent possible, any attachments to the submission should be included 
in the same file as the submission itself, and not as separate files.
    A person requesting that information contained in a comment 
submitted by that person be treated as confidential business 
information must certify that such information is business confidential 
and would not customarily be released to the public by the submitter.
    Confidential business information must be clearly designated as 
such and the submission must be marked ``BUSINESS CONFIDENTIAL'' at the 
top and bottom of the cover page and each succeeding page of the 
submission.
    Information or advice contained in a comment submitted, other than 
business confidential information, may be determined by USTR to be 
confidential in accordance with section 135(g)(2) of the Trade Act of 
1974 (19 U.S.C. 2155(g)(2)). If the submitting person believes that 
information or advice may qualify as such, the submitting person--
    (1) Must clearly so designate the information or advice;
    (2) Must clearly mark the material as ``SUBMITTED IN CONFIDENCE'' 
at the top and bottom of each page of the cover page and each 
succeeding page; and
    (3) Is encouraged to provide a non-confidential summary of the 
information or advice.
    Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR 
will maintain a file on this dispute settlement proceeding, accessible 
to the public, in the USTR Reading Room, which is located at 1724 F 
Street, NW., Washington, DC 20508. The public file will include non-
confidential comments received by USTR from the public with respect to 
the dispute; if a dispute settlement panel is convened, the U.S. 
submissions to that panel, the submissions, or non-confidential 
summaries of submissions, to the panel received from other participants 
in the dispute, as well as the report of the panel; and, if applicable, 
the report of the Appellate Body. An appointment to review the public 
file (Docket No. WT/DS-245, Japan--Apples) may be made by calling the 
USTR Reading Room at (202) 395-6186. The USTR Reading Room is open to 
the public from 9:30 a.m. to noon and 1 p.m. to 4 p.m., Monday through 
Friday.

Daniel E. Brinza,
Assistant United States Trade Representative for Monitoring and 
Enforcement.
[FR Doc. 04-18457 Filed 8-11-04; 8:45 am]
BILLING CODE 3190-W4-P