Door open to protectionism

The USDA issued a final rule today that seems to open the door to state-sponsored protectionism in the trade of fruits and vegetables. Here is a summary of what the USDA did:

Special Need Requests Under the Plant Protection Act
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
SUMMARY: We are amending our domestic quarantine regulations to establish a process by which a State or political subdivision of a State could request approval to impose prohibitions or restrictions on the movement in interstate commerce of specific articles that are in addition to the prohibitions and restrictions imposed by the Animal and Plant Health Inspection Service. The Plant Protection Act provides that States or political subdivisions of States may make such special need requests, but there are currently no procedures in place for their submission or consideration. This action establishes a process by which States may make a special need request.

DATES: Effective Date: November 24, 2008.

Here is the background on the topic from the USDA rule....

U.S.C. 7701 et seq.) gives authority to the Secretary of Agriculture to prohibit or restrict the importation, entry, exportation, or movement in interstate commerce of any plant, plant product, biological control organism, noxious weed, article, or means of conveyance if the secretary determines that the prohibition or restriction is necessary to prevent the introduction of a plant pestor noxious weed into the United States, or the dissemination of a plant pest or noxious weed within the United States. The Secretary has delegated this authority to the Administrator of the Animal and Plant Health Inspection Service (APHIS). Under section 436 of the PPA (7 U.S.C. 7756), no State or political subdivision of a State may regulate the movement in interstate commerce of any article, means of conveyance, plant, biological control organism, plant pest, noxious weed, or plant product in order (1) to control a plant pest or noxious weed; (2) to eradicate a plant pest or noxious weed; or (3) to prevent the introduction or dissemination of a biological control organism, plant pest, or noxious weed if the Secretary has issued a regulation or order to prevent the dissemination of the biological control organism, plant pest, or noxious weed within the United States. The only exceptions to this prohibition are when a State or political subdivision of a State imposes regulations which are consistent with and do not exceed the regulations or orders issued by the Secretary, or when the State or political subdivision of a State demonstrates to the Secretary, and the Secretary finds, that there is a special need for additional prohibitions or restrictions based on sound scientific data or a thorough risk assessment. On April 4, 2006, we published in the Federal Register (71 FR 16711–16716, Docket No. APHIS–2005–0103) a proposal 1 to amend the regulations by adding a new ‘‘Subpart—Special Need Requests’’ (7 CFR 301.1 through 301.1– 3) in which we set out procedures forthe submission and handling of special need requests. We solicited comments concerningour proposal for 60 days ending June 5, 2006. We received 17 comments by that date. They were from representatives of State agriculture departments, environmental groups, industry organizations, and private citizens. While the majority of these commenters supported the establishment of criteria for the submission of special need requests, all of the commenters expressed some reservations, which are discussed below by topic. We are making only minor changes in response to those comments.

TK: Some comments said that the special needs request process would take too long to be of any value. Other stated the special needs request should have a two year sunset and the USDA agreed, stipulating that states who wished to continue impose restrictions on interstate movement of must prove their need again. The USDA said two commenters said the rule would contribute to economic protectionism. Here is what the USDA said:


We disagree that the proposed rule promotes economic protectionism. Our process for deciding to either grant or deny a special need request will be determined exclusively on the basis of the best available science and the need to take the least restrictive action. In addition, the decision to grant or deny a special need request will be based on several specific criteria and each of those criteria will need to be satisfied through the presentation of compelling, science-based evidence. However, we have revised our criteria in order to clarify that we will not grant a special need request based solely on economic factors.

TK: To me, this new authority seems like it would be too easily politicized. I hope I'm wrong, but it seems this will muddy the waters with science that is skewed toward self-interest.