Phytosanitary Controls: Discretion and Abuse

The business sector in Nicaragua believes that the bill under discussion in the Assembly, which empowers the government to fine agricultural producers if they fail to comply with approved phytosanitary standards, has excessive discretion.

Friday, March 6, 2020

A few days ago, a bill called the "Plant Protection Law" was submitted to the National Assembly. This is a legal framework that empowers the Institute of Protection and Health (IPSA) to impose sanctions ranging from $100 to $700 on any producer that does not comply with the requirements at the time the government carries out an inspection.

According to the National Assembly, after a day of consultations with the agricultural, forestry, exporting and importing sectors on March 4, the Environment and Natural Resources Commission together with the Production, Economy and Budget Commission ruled favorably on the Plant Protection Law Initiative.

Guillermo Jacoby, president of the Association of Producers and Exporters of Nicaragua, told that "... 'The initiative is totally arbitrary in every way, and the problem with the fine that is established is that it is left to the discretion of the IPSA, of the person who carries out the inspection, so when these fines are discretionary, the discretion goes together with the corruption, but in addition they are high fines."

According to article 78 of the bill, when plants or regulated articles that are infected with a pest are traded, fail to comply with phytosanitary requirements, or for failing to declare the entry into the national territory of products of sanitary risk, "... They will be sanctioned with fines of $5,001 to $7,000 ... or with the definitive suspension of the registration or definitive closure of the establishment."

On March 5, the Superior Council of Private Enterprise referred to the issue in a statement, assuring that the proposed project has excessive discretion, since the "... IPSA cannot become judge and party regarding the presentation of complaints 'before the competent authority, due to the probable existence of a crime'. The initiative leaves the organization, structure and functions of the Plant Protection Council to the regulations and therefore to the discretion of the Executive, which could be modified at any time. In addition, it is not clear what criteria are to be used to determine authorized third parties, since they are not subject to regulations allowing the submission of such services".

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