| Module 8 National Phytosanitary Capacity for WTO Members and Contracting Parties to IPPCR. Griffin Plant Production and Protection Division |
To describe the complementary rights and responsibilities governments have under the SPS Agreement and the International Plant Protection Convention (IPPC) and indicate the national capacities that should be in place for governments to meet their obligations and fully realize their benefits under the agreement.
8.1 Introduction
8.2 Importing country rights and responsibilities under the SPS Agreement
8.3 Exporting country rights and responsibilities under the SPS Agreement
8.4 Specific obligations and commitments
8.5 National phytosanitary capacities
Focus is on responsibilities and capacities of national phytosanitary authorities
The GATT Uruguay Round negotiations resulted in the establishment of the World Trade Organization. The WTO was created to oversee implementation of its agreements, facilitate further trade-liberalizing discussions among member governments, and to administer the dispute settlement system. The negotiations also added a set of comprehensive trade agreements dealing with agriculture, including the Agreement on the Application of Sanitary and Phytosanitary Measures (herein referred to as the SPS Agreement).
The SPS Agreement establishes rules which countries must observe when formulating and adopting health measures that affect trade. It recognizes the right of governments to take phytosanitary measures, provided that these are necessary for the protection of plant health and are based on transparent and scientific principles and evidence. Its objective is to avoid unjustified restrictions on trade. This is consistent with the long-standing objectives of the IPPC concerning plant health requirements aimed at preventing the spread of plant pests in international trade.
In addition, the SPS Agreement gives the IPPC a significant role in collaborating with the WTO and member governments to promote the development and use of international standards for phytosanitary measures, exchange official information and provide technical expertise and advice to the WTO or individual member governments.
This document clarifies the responsibilities and necessary national capacities of phytosanitary authorities in their role as either importing or exporting countries under the provisions of the SPS Agreement and the IPPC.
Countries have the right to establish phytosanitary measures to protect plant health...
The SPS Agreement explicitly recognizes the right of countries to establish phytosanitary measures necessary to protect plant health. Furthermore, it is the sovereign right of each country to decide the extent to which it will adopt an IPPC standard in formulating its own phytosanitary requirements and measures. As such, a country's decision to adopt a particular IPPC standard does not imply IPPC liability of any adverse events which may occur as a result of developing and implementing a particular phytosanitary measure based on an IPPC standard, guideline or recommendation.
Countries may adopt phytosanitary measures that are more stringent than an existing standard. However, the phytosanitary authorities of that country must be prepared to provide a scientific justification for a deviation from a relevant standard. This rationale should also be indicated in a WTO-SPS notification. A scientific justification exists if, on the basis of an assessment of the available scientific evidence, a country determines that the relevant international standard is not sufficient to achieve the country's appropriate level of phytosanitary protection (footnote to Article 3.3).
Countries which adhere to IPPC standards, guidelines or recommendations will be presumed to meet their obligations under the SPS Agreement and will be safe from challenges regarding scientific justification. Non-use of an international standard alone is an insufficient basis for challenging another country.
...but they cannot be arbitrary...
If a WTO panel issues a finding that a country's phytosanitary measure is arbitrarily or unjustifiably non-compliant with an IPPC standard or in violation of the SPS Agreement, that country will be required to change the measure in question. Should it not be possible to make such a change within a reasonable period of time, the country must seek to compensate the complaining party by lowering trade barriers on other imported products of similar value to the ones impaired by the unacceptable phytosanitary measure. If a mutually acceptable compensation cannot be found, the complaining party can request WTO authorization to retaliate by suspending trade benefits of equivalent value.
...nor discrimin-atory...
Countries should ensure that their phytosanitary measures do not arbitrarily or unjustifiably discriminate between members where identical or similar conditions prevail, including between their own territory and that of other countries.
If a country chooses not to base its phytosanitary measures on a relevant standard or in cases where an applicable standard does not exist, that country is required to base its phytosanitary measures on an assessment, as appropriate to the circumstances, of the risks to plant health taking into account IPPC pest risk analysis guidelines (Article 5.1)1.
In conducting a risk assessment, the importing country is required to take into account available scientific evidence; prevalence of specific pests; existence of pest-free areas; relevant ecological and environmental conditions; and quarantine and other treatments. The importing country has an obligation to be transparent regarding the data and methodology used in conducting its risk assessment.
In cases where scientific evidence is insufficient, the importing country may provisionally adopt a phytosanitary measure on the basis of available pertinent information, including information from the IPPC, regional organizations and/or other countries. In these circumstances, the importing country should try to obtain the necessary information to complete the risk assessment within a reasonable period of time (Article 5.7).
In conducting a risk assessment and determining the measure to be applied to achieve the importing country's appropriate level of protection, countries may take into account relevant economic factors such as potential losses of production or sales in the event of a pest entry and establishment; costs of controlling or eradicating the pest if it entered and spread in the territory of the importing country; and the relative cost-effectiveness of alternative approaches to limiting pest risks (Article 5.3).
A country should avoid arbitrary or unjustifiable distinctions in the levels of protection it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade (Article 5.5).
...and shall be based on transparent risk assessment procedures
The importing country is required to notify other member countries of changes in its phytosanitary requirements, particularly those with trade effects, by providing official notification to the WTO-SPS Secretariat.
The importing country is also required to publish any changes in its phytosanitary measures in an official government publication and to share information regarding its regulations including the scientific basis of the regulation (e.g. the risk assessment data and methodology) upon request from any interested party.
The notification and publication should occur at least 60 days in advance of the date on which the phytosanitary measure goes into effect in order to allow interested parties to become acquainted with and to comment on the new phytosanitary requirements or change. Advance notification is not required for cases where an urgent problem arises or threatens to arise. However, the country must immediately notify the WTO Secretariat of such action.
An urgent problem of plant health protection is defined as the need for immediate action in response to a newly reported pest incident and where information about its nature, scope and the regulatory controls imposed to contain the pest is uncertain.
Exporting country responsibilities...
The exporting country is responsible for providing the necessary scientific evidence that may be required by an importing country to conduct a risk assessment.
The exporting country has the right to request from the importing country the scientific justification for a particular import measure or requirement, which may be affecting its trade, if it does not conform to a relevant IPPC standard, guideline or recommendation.
...and rights
The exporting country has a right to challenge another country if it believes that a particular phytosanitary measure is unjustified from a scientific standpoint. However, the complaining party should first discuss and seek to resolve the issue on a bilateral basis with the other country. Countries involved in the dispute may seek to obtain IPPC technical input, advice, or assistance relative to the issue. Dispute settlement processes associated with the IPPC are non-binding.
The complaining party has the right to raise the issue at the WTO SPS Committee level for consultations. The SPS Committee is charged under the SPS Agreement to facilitate consultations on the issue and may seek IPPC technical advice and expertise in helping to resolve the matter.
The complaining party has the right to formally challenge the other country using the WTO Dispute Settlement procedures. These mechanisms are detailed in the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes.
Under the SPS Agreement, signatory countries are committed to recognizing the concepts of pest-free areas and areas of low pest prevalence by adapting their phytosanitary requirements to the conditions of the area from which a product originates (Article 6.1).
Two specific issues are recognition of pest-free areas and areas of low pest prevalence...
The importing country is responsible for conducting a risk assessment, as appropriate to the circumstances, in order to make a determination regarding the recognition of a pest-free area or area of low pest prevalence.
The importing country must be transparent about the information and data it will need from the exporting country in order to assess the exporting country's situation, including its pest surveillance and monitoring capabilities. Such information is necessary to determine the exporting country's ability to maintain a pest-free area or area of low pest prevalence and assure the continued integrity of such an area.
Phytosanitary authorities conducting such risk assessments should take into account existing IPPC pest risk analysis methodologies and techniques; risk factors such as geography, ecosystems, epidemiological surveillance, the effectiveness of phytosanitary procedures for control (Article 6.3), and other factors deemed appropriate and justifiable by phytosanitary authorities of the importing country. Importing countries should be encouraged to take advantage of relevant risk assessments conducted by other countries.
It is the responsibility of the exporting country to provide:
a) the information which the importing country believes is necessary to demonstrate that an area is pest-free or is an area of low pest prevalence;
b) evidence as specified by the importing country which objectively demonstrates that such areas will be protected and remain pest-free or of low pest prevalence;
c) information which demonstrates its pest surveillance and monitoring capabilities, such demonstrations being necessary to validate the exporting country's ability to maintain the integrity of a pest-free area or area of low pest prevalence; and
d) reasonable access for the importing country's phytosanitary authorities to conduct the inspections, testing, and other reviews necessary to assess an area claimed to be either pest-free or an area of low pest prevalence.
...and equivalence recognition
Countries are encouraged to enter into bilateral and multilateral consultations on the recognition of the equivalence of specific phytosanitary measures.
The importing country is obliged to recognize the phytosanitary measures of an exporting country as equivalent, even if those measures differ from those used by the importing or other member countries, if the competent authorities of the exporting country objectively demonstrate to the importing country that its phytosanitary measure in question achieves the importing country's appropriate level of protection.
The exporting country seeking an equivalence recognition must provide reasonable access to the competent authorities of the importing country for inspections, testing, or other relevant information gathering activities.
National capacities checklist
The following is a summary of key national phytosanitary capacities organized into administrative, operational, and analytical elements.
Legal Authority - The existence and function of the National Plant Protection Organization (NPPO) should be clearly mandated in national legislation. At a minimum, authority must be provided for the administration of phytosanitary systems and control over import-export processes related to the application of phytosanitary measures, including the charge or authority to:
a) issue and require phytosanitary certificates;
b) become a contracting party to the International Plant Protection Convention (IPPC);
c) negotiate, establish, and comply with country-to-country agreements for programmes associated with phytosanitary issues;
d) implement survey and control, including emergency actions against plant pests;
e) supersede provincial, state, local, or other sub-national authority in phytosanitary issues of national or international concern;
f) quarantine, and require treatment or destruction for phytosanitary reasons;
g) enact and enforce administrative instructions and/or regulations;
h) require accountability from personnel and cooperators;
i) allow auditing and monitoring by foreign counterparts; and
j) perform permit and licensing functions.
The NPPO should be able to demonstrate a working relationship with sub-national authorities and other national agencies with similar, overlapping, or complementary authority to ensure the effective and timely execution of activities necessary to control processes associated with phytosanitary issues.
Funding - The government should ensure that adequate funding is devoted to critical functions and that dedicated funds are available for those functions required to effectively implement specific programme(s).
Structure - The government should maintain a national enquiry point and notification authority for the WTO-SPS. An official contact point in the NPPO is required by the IPPC. These offices or officials may be different or the same. In addition, the NPPO should clearly describe and make available its organizational structure, the delegation of authority, and the duties and responsibilities of its personnel.
Transparency and information exchange - Regulations and requirements should be publicly available to interested parties and the rationale for measures should be available through enquiry points. Proposed changes that are not based on international standards must be notified to the SPS and comments accepted from other WTO Members. Governments must cooperate with trading partners in the open and timely exchange of relevant official information such as pest status and risk assessment.
National quarantines - The NPPO should maintain scientifically and technically sound national regulations for the protection of that country's plant resources, and should have a system and organization devoted to monitoring and enforcement activities in this regard.
Domestic quarantines - The NPPO may maintain biologically based internal quarantines for the protection of plant resources within the country and a system and organization devoted to monitoring and enforcement activities in this regard.
Accountability and control - The NPPO should be able to demonstrate internal accountability and control for actions, decisions, and personnel associated with phytosanitary issues and activities, and that the same actions, decisions, and personnel are open for observation, review, or audit on a periodic or "as needed" basis. It is essential for the government to ensure that personnel devoted to phytosanitary programmes can function in an official capacity, unencumbered by the influences of over-riding political forces, commercial forces, or other factors outside the scope of duties and responsibilities defined for the position and the employing office or agency. Appropriate legal disciplinary provisions should be in place to dissuade departures from policy and illegal or inappropriate activities.
Technical assistance - Governments should assist other governments to the extent possible where technical assistance is needed to strengthen phytosanitary systems or to implement a particular programme.
Equipment and facilities - The government should ensure that the NPPO is provided with adequate equipment and facilities for essential functions and that other equipment and facilities are available for those functions required to effectively implement specific programme(s).
Training - Provision for adequate training is necessary to ensure a high level of technical competency. This should be supplemented by information such as manuals, guidelines, and job-aids provided by the NPPO. The NPPO should also ensure that timely and accurate summaries of the import requirements of trading partners are available where necessary and that phytosanitary officials understand and are fully aware of their government's obligations under the SPS Agreement and the IPPC.
Import clearance and export certification - Personnel must be technically qualified and duly authorized by the NPPO for inspection and other procedures required for import clearance and export certification.
Surveillance systems - The NPPO should have a system and organization devoted to performing field inspection and plant pest survey activities for the detection, delimitation, or monitoring of established pests, as well as a system and organization devoted to the detection of new pests that may be introduced. Specific systems may be required for pest free and low prevalence areas.
Diagnostic systems - A system and organization for plant pest identification is necessary. Systems implemented by the NPPO for officially recording and reporting pest status in an accurate and timely fashion are also required.
Treatment and pest control systems - The NPPO should have a system and organization for performing phytosanitary treatments and implementing plant pest suppression activities. This may include biologically based contingency plans for new pest introductions.
Monitoring and evaluation - The NPPO should have in place systems to monitor the implementation and effectiveness of phytosanitary measures to ensure their consistent application and to collect such information as may be needed to justify maintaining measures or modify them based on changing conditions.
Scientific support - The government should make provision for or arrangements with appropriate research institutions, experts, and facilities to provide adequate and timely scientific support for phytosanitary concerns.
Pest risk analysis - The government must ensure that systems are in place to assist the NPPO in determining the risk basis for phytosanitary measures using scientific principles and evidence. The NPPO must be able to demonstrate that phytosanitary requirements and actions are based upon sound scientific principles and evidence and that the decisions taken in this regard are consistent with the risk involved and with similar decisions taken for similar risks. This includes the means for documenting such procedures and the results of these procedures, and making these available as necessary.
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1 Note that the SPS Agreement uses the term "risk assessment" where the use of the term "risk analysis" or "pest risk analysis" (PRA) is more common in the IPPC.
