STC Number - 217

Import restrictions on apples

Maintained by: Australia
Raised by: New Zealand
Supported by: Chile; European Union; United States of America
First date raised: June 2005 G/SPS/R/37/Rev.1, paras. 13-15
Dates subsequently raised: October 2005 (G/SPS/R/39, paras. 64-68)
March 2006 (G/SPS/R/40, paras. 38-40)
June 2006 (G/SPS/R/42, paras. 32-34)
October 2006 (G/SPS/R/43, paras. 30-32 )
February 2007 (G/SPS/R/44, paras. 21-24)
June 2007 (G/SPS/R/45, paras. 28-30)
Number of times subsequently raised: 6
Relevant documents: G/SPS/GEN/796, WT/DS367/1, WT/DS367/5
Products covered: 0808 Apples, pears and quinces, fresh.
Primary subject keyword: Plant Health
Keywords: Good Offices/Consultations/Dispute Settlement; Plant health; Risk assessment; Sufficiency of scientific evidence; Undue delays
Status: Not reported
Solution: DSU consultations requested on 31/08/2007 (WT/DS367/1). Panel established on 21/01/2008. Appellate Body report (WT/DS367/AB/R) and Panel report (WT/DS367/R) adopted on 17/12/2010. Reasonable period of time for implementation expired on 17/08/2011. Implementation notified by respondent on 02/09/2011. Agreed procedures (Sequencing agreement) notified on 13/09/2011 (WT/DS367/21).
Date reported as resolved:

Extracts from SPS Committee meeting summary reports

In June 2005, New Zealand explained that it had been actively pursuing access to the Australian apple market since 1986. Fresh apples were the second most significant horticultural export of New Zealand after kiwifruit. Australia's ban on New Zealand apples was based on the perceived risk of fire blight transmission, although science had clearly demonstrated that the risk of mature symptomless apples in trade being vectors for the transmission of fire blight was negligible. Since 1999, when New Zealand made its fourth application for regaining access to the Australian apple market, the Australian authorities had only released two draft risk analyses, systematically followed by a round of comments. This undue delay of six years was unacceptable
Chile, the European Communities and the United States indicated that they had experienced similar difficulties. The European Communities hoped that since Australia was reviewing the scientific justification of its 2004 risk assessment in light of the Panel findings in the Japan-Apples case, its phytosanitary import policy might improve. The United States recalled that the major plant pest of concern was fire blight. A WTO dispute settlement Panel had recently found that stringent control requirements were not justified on the basis of the available scientific evidence, which clearly demonstrated that mature symptomless apple fruit did not pose a risk of transmitting fire blight. It encouraged Australia to expeditiously modify its existing import prohibitions on apples and other fruits due to fire blight concerns. Chile requested to be kept informed of any progress on this issue.
Australia reminded the Committee that recent changes to Australia's biosecurity agency had caused some delays in the time taken to complete a number of risk analyses. Australia was committed to deliver a science-based risk assessment for New Zealand apples as soon as possible.
In February 2006, New Zealand informed the Committee that since June 2005, Australia had issued a new revised draft import risk analysis for New Zealand apples. This new revised draft allowed the import of New Zealand apples into Australia under certain conditions. Australia had already proposed a similar conditional access in response to previous requests without justifying the scientific basis of these conditions. Australia required not only that orchards be inspected by their own officials and found free of fire blight, but also that apples be immersed in chlorine prior to export. These measures were unjustified. Australia also prohibited imports of New Zealand apples into Western Australia because of apple scab disease, although another outbreak of apple scab had been reported in Western Australia at the time the revised draft import risk analysis had been released. New Zealand considered that Australia's biosecurity import risk analysis process, based on cycles of drafts and consultations, resulted in undue delays and constituted a disguised restriction on trade. These undue delays created uncertainty about whether and when the Australian Government would complete its import risk analysis.
The United States recalled that there was an outstanding US request for access to the Australian market. Given both the strong science and the legal record established by the WTO dispute settlement process with regard to the risk of transmitting fire blight via mature symptomless apples, Australia should remove its unjustified import prohibitions and ensure that its import requirements were based on science and consistent with the SPS Agreement.
The European Communities recalled that in June 2005, Australia had suspended its import risk assessment for New Zealand apples pending a review in the light of the Japan-Apples case. Then a new revised draft had been submitted for consideration, leading to more delays. The European Communities had similar experiences with Australia in trying to get access for chicken meat and pig meat.
Australia stressed that all the relevant scientific information, including that considered in the Japan-Apples case, had been taken into account in the assessment of the risks from New Zealand apples. The new draft report was available for comments until 30 March 2006. After consideration of comments received, a final review of the draft report would be undertaken by an eminent group of scientists. If this group confirmed that all relevant information has been taken into account in the analysis (including stakeholder comments), the report and its recommendations on import conditions would be transmitted to the Director of Animal and Plant Quarantine for a policy determination. The revised draft report took account of Australia?s level of protection (ALOP). Fire blight was one of a number of pest and diseases of quarantine concern dealt with in the revised draft report. The report appropriately took into account the variations in the phytosanitary status of different regions within Australia.
In June 2006, New Zealand reported that it had commented on a draft risk assessment. Contrary to evidence considered in the Japan-Apples case, Australia maintained that mature apples were a vector for fire blight. New Zealand was of the view that volume estimates in the risk assessment should contain only New Zealand exports. Biosecurity Australia had indicated that the process might conclude at the end of 2006. If this problem - which had existed for four years - could not be resolved bilaterally, New Zealand would not rule out other WTO actions.
The United States reiterated its request that Australia revise its approach in light of the scientific evidence and of WTO jurisprudence.
Australia indicated that 40 submissions commenting on the draft import risk assessment had been received, and that some technical exchanges were continuing. The draft import risk assessment took into account Australia's appropriate level of protection; fire blight was only one of the pests of concern. The final report would be reviewed by an eminent scientist group to ensure that stakeholder comments had been properly taken into account.
In October 2006, New Zealand recalled that in December 2005, Australia had released a third revised draft Import Risk Analysis (IRA) for New Zealand apples, and New Zealand, in consultation with their pip fruit industry, had provided a comprehensive submission to Biosecurity Australia on this revised draft. New Zealand noted that since June 2006, Biosecurity Australia had completed its consideration of stakeholder comments on the revised draft and a final draft report had been referred to Australia's Eminent Scientific Group (ESG), which had also finished its consideration of the draft final report and made recommendations to Biosecurity Australia. New Zealand had not received these recommendations and urged Australia to make them available in the interest of transparency. While New Zealand was reassured by the progress made in finalizing the issue with Australia, it still had concerns regarding the content and substance of the draft IRA. Australia still maintained that mature apples were a vector for fire blight disease, irrespective of the science considered in the Japan apples dispute which had demonstrated that the risk was negligible. New Zealand was also concerned about the pests and diseases addressed by Australia in the revised import risk analysis and hoped that the volume of imports assessed in the final IRA would take into account only trade from New Zealand. New Zealand indicated its commitment to resolving the issue bilaterally with Australia, but was prepared to explore other dispute settlement options under the WTO system if the issue was not resolved in the near future.
The United States shared the concerns of New Zealand and indicated that the United States had also provided a comprehensive submission to Biosecurity Australia on its revised draft IRA. The United States expected that Australia's final policy determination would be consistent with the wealth of scientific evidence available on the issue and the legal record established by the WTO dispute settlement process.
Australia reported that in accordance with its normal procedure, the draft final IRA was sent to the independent Eminent Scientific Group (ESG) on 1 August 2006 for review. That group had 60 days to conduct its review and as indicated by New Zealand, the ESG had completed the review and the report had been transmitted to Australia's Director of Animal and Plant Quarantine. Biosecurity Australia was expected to take into account any recommendations made by the ESG in producing its final IRA report and the report would be published. Australia further noted that the final IRA could be appealed on the basis of any problems with the process but not in terms of the actual science in the report. Once any appeal process had been completed, a final report and recommendations would be provided to the Director of Animal and Plant Quarantine for a final quarantine policy determination. The whole process was expected to be completed by the end of 2006 and Australia indicated that the recommendations made by the ESG would be conveyed in an appropriate fashion as determined by the Director of Animal and Plant Quarantine.
In February 2007, New Zealand recalled that this issue concerned restrictions that had been in place for over eight decades. New Zealand's experience had been one of frustration; since initiating a fourth request for access in 1999, they had waited for over eight years for Australia to complete its import risk analysis (IRA) process. While there had been some progress, the IRA had still not been completed before the end of 2006, as previously expected. Now the IRA process was nearing completion, and a final IRA had been issued. However, the conditions outlined in the final IRA were extensive, and it was doubtful that commercially meaningful trade would be possible under these conditions. The IRA proposed tougher requirements relating to fire blight, in contradiction to the conclusions of the Japan-Apples case, and clearly in contradiction to Australia's WTO obligations. There was no scientific or legal justification for the imposition of these measures relating to fire blight. Other proposed measures relating to other pests were also of concern, such as the requirement that Australian inspectors be present in orchards. New Zealand had demonstrated its willingness to work with Australia on this matter, and remained committed to resolving this issue. However, if no progress was made in the near future, New Zealand could not rule out dispute settlement options.
The United States recalled that her country shared the concerns of New Zealand, and that Chile and the European Communities had also raised similar difficulties with Australia. The major concern was fire blight, and the past dispute case found that stringent requirements, such as orchard inspections, were not justified. Mature apples do not pose a risk of spreading fire blight. Given the strength of the scientific and legal records, she urged Australia to remove its unjustified import restrictions without delay.
The European Communities observed that undue delays appeared to be a regular, most troublesome, feature of the Australian IRA process. The European Communities would address this concern in its comments on Australia's new IRA process.
Australia reported that there had been a number of actions taken since the last meeting, and the issue was close to finalization. At the end of November 2006, Biosecurity Australia had released the final IRA report on apples from New Zealand. Appeals from the final IRA report had been possible until 12 January 2007, on limited grounds. There had been three appeals, but all had been dismissed. The next step was for the Director of Quarantine to make a policy determination which would include any import requirements.
In June 2007, New Zealand stated that since Australia had concluded its import risk analysis process by issuing a Final Policy Determination on 27 March 2007, New Zealand had been closely engaged with Australian authorities in negotiating standard operating procedures to implement in practice the requirements prescribed by Australia. New Zealand considered that these requirements and measures were scientifically unjustified and inconsistent with the SPS Agreement, however New Zealand had been negotiating a work plan and standard operating procedures in good faith in order to determine precisely what the conditions would be for access of New Zealand apples into Australia. Whether or not these conditions would permit any commercially meaningful trade to occur remained to be seen, but the restrictions and costs imposed on the NZ industry were unjustified, and New Zealand would keep open its options for further action.
The United States noted that her country was disappointed by the March 2007 decision of Australia, which imposed more onerous restrictions on apples than could be scientifically justified. The United States found it particularly distressing that Australia failed to take account of the available scientific evidence and of the previous legal proceedings, and had decided to impose onerous requirements on apples from New Zealand. This decision undermined confidence in Australia's commitment to ensure that SPS measures were not maintained without sufficient scientific evidence.
Australia reported that considerable progress had been made, as the determination of March 2007 would permit the importation of apples under certain conditions. Australia was working to permit trade to commence in 2008. The relationship between Australia and New Zealand on SPS matters was much broader than just the apple issue, and Australia was committed to continue working with New Zealand on a wide range of concerns.