Lesson 4: How the Process Works
Topic 5: Undergo Legal and Policy Review
In this topic, you will learn about step five of the U.S. market access process: Legal and policy review.
Objective:
- Describe three concerns that legal and policy reviewers might raise during their review
Once APHIS has drafted a risk analysis, a proposed rule or notice, and any necessary supporting documentation, the package of documents goes through a clearance process within the government before it is published for public review. This includes reviews, both within and outside of APHIS. We will discuss two major categories of review: legal review and policy review.
Review within APHIS has many goals. Reviewers ensure that the various documents that have been prepared for the action are consistent and that they comply with the requirements laid out in statutes and Executive Orders. We will discuss these further in Lesson 5. The reviewers also ensure that the action under consideration is consistent with similar actions that have been taken in the past, or that the variations are explained if a different approach is appropriate. Internal APHIS review gives scientific, technical, and operations specialists the chance to comment on the proposed requirements and their possible implementation.
Legal Review
Legal review focuses on ensuring that the action APHIS is taking is consistent with the statutes that authorize that action. APHIS has to accurately cite its authority under the Animal Health Protection Act (AHPA) or Plant Protection Act (PPA) for granting a market access request, and the terminology APHIS uses to describe the action that it is taking should also be consistent with the authorizing statute. The action must also be within the authority granted to APHIS by the AHPA or the PPA.
Like any OIE or IPPC member, APHIS has to be careful to make sure that its actions and terminology are consistent both with its authorizing statutes and with international standards that govern the market access process. For example, the important term used to describe pests, for which action is taken under the IPPC, is “quarantine pest.” However, the PPA grants APHIS broad statutory authority to regulate “plant pests”. While all quarantine pests are plant pests, an organism could be a plant pest but not a quarantine pest (because, for example, the pest is widely prevalent).
Consistent with its obligations under the SPS Agreement, APHIS has made a policy decision under its PPA authority to limit the pests it regulates to quarantine pests. The proposed rule or notice must accurately state APHIS’ authority over plant pests but also reflect the policy decision to concentrate on regulating quarantine pests.
Policy Review
Policy review focuses on how the proposed action fits into the overall goals of the U.S. Department of Agriculture and, sometimes, the Presidential administration as well. Sometimes, an action to allow the importation of a commodity, such as citrus or ruminant meat, might cause concern among domestic producers of that commodity. If these concerns are related to pest or disease risk, APHIS responds to them at a technical level. Sometimes, these concerns are about a wider range of issues, such as economic concerns, and non-technical policymakers will respond to them. Like all WTO members, APHIS is committed to fulfilling its SPS obligations, but, within the U.S. regulatory system, SPS obligations must be balanced with other interests.
One common concern when importation of a commodity is proposed is that the imported commodity will drive down prices for domestic producers of that commodity. However, other circumstances might come into play. For example, if imported fruits or vegetables come from the Southern Hemisphere, they are likely to be available for sale during the opposite season from U.S. produce. Grapes imported from Chile, for example, are available in the winter, when U.S. grape supplies are not available.
In addition, the amount of a product that a country plans to export to the United States might be commercially significant to that country but not as significant in the context of the U.S. economy. This is frequently the case because the United States has a large agricultural sector. Changing the disease status of a country to recognize the country as free of classical swine fever, for example, could potentially affect U.S. pork producers. However, the National Pork Producers Council estimates that, in 2011, total sales by the U.S. pork industry were $97 billion. Clearly, only exports of a very large amount of pork from this country would materially affect U.S. pork prices.
In this topic, you learned about legal and policy review of market access requests, and what kinds of concerns might be raised during that review.
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