1. Before Drafting Legislation
The IPPC Secretariat
With the financial support of the STDF project 401
Phytosanitary Capacity Evaluation (PCE) facilitators training

2. Drafting Legislation requires combined technical and legal expertise

3. Before drafting legislation Preliminary assessment
Conduct detailed analysis of:
Legal structure and traditions
Existing regulatory frameworks
Institutional structure
Administrative structure
Additional considerations in decentralized or federal States.

4. Regulatory reform must be based on the deep knowledge of the national legal framework
Phytosanitary Legislation
Laws governing agriculture
Laws governing plant protection
Laws governing other relevant areas
Laws governing trade/customs
Laws governing biosafety
Constitutional division (central/decentralized)

5. Preliminary assessment Legal structure and traditions
Areas that will often vary between country include:
Law adoption processes
Institutional structures
Powers and duties of regional authorities
Provisions on offences
Enforcement systems
Legal presumptions
Principles of interpretation
Also identify obligations assumed at an international or bilateral level.

6. Preliminary assessment Existing regulatory frameworks
Conduct a legislative analysis to research and compile existing legislation in all related areas (not solely areas under review).
Laws that may contain relevant provisions include:
Agricultural laws
Plant protection laws
Custom
Other (seed, nurseries)
Issues to identify:
Gaps
Overlap
Inconsistency
Weaknesses
Potential areas of conflict with proposed legislation

7. Simplified steps for a gap analysis of legislation
Preliminary assessment Existing regulatory frameworks
Simplified steps for a gap analysis of legislation
Identify the national legislation directly or indirectly related to phytosanitary legislation.
2. Assess how closely the measures in the statutory instruments match the IPPC and the ISPMs
3. List the gaps in the legislation and incorporate them into a report explaining the differences.
4. Make recommendations for legal reform

8. Preliminary assessment Existing regulatory frameworks
If proposed legislation will replace an existing system, preliminary assessment must consider:
Content and provisions of existing law.
AND application of the law and its effect in practice.
Existing problems may not be due to legislation. In such cases, new legislation may not help.

9. Preliminary assessment Institutional structure
Identify key relevant institutions and actors.
Map out institutional mandates to search for areas of overlap or gaps.
Gaps can render mechanisms ineffective.
Overlaps increase cost, bureaucracy, and cause confusion.

10. Federal and decentralized States
Where do legislative competences lie? E.g.:
It is frequent that regulatory powers lie at the central level and implementation powers at the decentralized level.
It is frequent that the central power keeps the audit of the health status and the right to intervene at the local level in case of risk.
It is frequent that import/export is at the central level.
Central/Federal
Government
List of regulated pests
Export certification
Regional/State
Control plans?
Monitoring and implementation
Import measures

11. Exercise
Utopia is a Federal State composed of autonomous regions. Regions can approve their own legislation in a number of areas, including agriculture.
The legislation of one region includes (i) the power to declare infected areas as long as they are within the borders of the State; (ii) the power to approve measures and undertake sanitary action. There is no reference to the central-level measures or coordination.
Discuss in groups of 4 (including a lawyer) what can be the potential drawbacks and how these could be addressed in legislation.

12. Thank you very much Legal Officers -FAO Development Law Service
Carmen Bullon -
Lalaina Ravelomanantsoa –
Legal Officers -FAO Development Law Service
FAO Legal Office