What Bugs You?

By Lawrence W. Hanson

The Scene
• Containers of imported product that use wooden bracing, dunnage, support or other packaging.
• Bugs or pests, dead or alive
• At stake: expensive, time consuming and always inconvenient corrective action or significant ecological and agricultural disaster.

The Facts
Daily and throughout the U.S., Customs and Border Protection, or CBP, and Department of Agriculture, or USDA, inspectors select a container arriving at a port of entry for inspection of wooden products including, if not specifically, dunnage, wooden bracing, pallets or other wooden material necessary for shipment of imported goods.

This high-stakes inspection may result in the release of the goods. However, if pests are found, the inspection may result in the quarantine of the container and even a refusal of admission. U.S. authorities may require the exportation of the entire container, including its contents, even if the predominant imported product did not include pests. The risk of refusal exists even for goods that cannot themselves be infested, such as imports of tile, stone, marble or steel products.

These inspections are not without cause. Agricultural pests have caused and threaten to cause significant economic damage, and foreign-sourced pests arriving in dunnage, ballast water, or otherwise related to arriving in or with international products have been a source of these threats. On the other hand, the costs of treatment and, most importantly, the costs of exclusion are significant, especially if low-cost alternatives are available that would still achieve the shared goal of eliminating the threat of pests.

The Law
Federal law establishes the right and rationale for the inspection of wood packing materials. U.S. Code of Federal Regulations, 7 CFR § 319.40 regulates wood articles and defines “wood packaging material,” or WPM, as “wood or wood products (excluding paper products) used in supporting, protecting or carrying a commodity (includes dunnage).” Federal regulations similarly require “that all regulated wood packaging material shall be appropriately treated and marked.”

Examples of WPM include but are not limited to: pallets, skids, pallet collars, containers, crating/crates, boxes, cases, bins, reels, drums, load boards and dunnage.

Wood packaging made of exempt materials but combined with solid wood components must still be treated and marked. The USDA Plant and Inspection Service (APHIS) clarifies that “(a)ll wood packaging material entering or transiting the United States except wood of Canadian origin entering from Canada, must be heat-treated or fumigated and be marked with an approved logo certifying that it has been appropriately treated. Shipments containing noncompliant wood packaging material will not be allowed to enter the United States.”

Violations of the wood treatment and marking requirements occur in three circumstances:
• Wood that is treated but still infested.
• Wood that is treated but not marked.
• Wood that is neither treated nor marked, whether or not it is infested.

The consequences of an inspection that identifies a violation can lead to liquidated damages or penalties, but frequently the most onerous consequence is a requirement of re-exportation at the expense of the importer. In some ports where circumstances, facilities and situations allow, remedial action can be taken, but not all ports of entry, or all circumstances merit that accommodation.

Equally frustrating for importers faced with a denial of entry of wood products is the absence of due process procedures through which alleged mistakes in pest identification can be reviewed. APHIS inspectors have the options of taking samples or at least pictures of live or dead pests or other evidence of potential infestation that would confirm their conclusions. Yet all too often they close the container and create an Emergency Action Notice (EAN) that is not reviewable in any helpful context. The considerable burden on an importer for mistakes in pest identification could be, at least in part, addressed by examining the evidence collected by the inspector to independently evaluate, confirm or disprove the inspector’s conclusion.

Lessons Learned
The economic danger of unintentionally imported pests requires inspection, prevention and eradication of wood boring and other pests. On the other hand, the burden on importers is not insignificant if a claim of infestation is not true or if there are reasonable and effective alternatives to the exportation of the shipment as a whole. Importers into the U.S. that import wood, not only as the imported product but also with respect to bracing, dunnage, or other wood products, should address the following:

• Understand the legal requirements for heat treatment or fumigation of wood products as well as the labeling requirements for wood that has been treated. Ignorance of the requirements, whether feigned or actual, will not prevent the problems upon arrival in the U.S.

• Work with an effective heat treatment or fumigation vendor. Ineffective treatment that does not eradicate pests will not prevent the consequences sought to be avoided.

• Work with local CBP and APHIS personnel to develop procedures that confirm and document any alleged violation for your port and also provide a mutually agreeable solution that protects against the scourge of pest infestation with unnecessary burden on the
importer.  

Lawrence W. Hanson is the principal with the law office of Lawrence W. Hanson, P.C. located in Houston, Texas. Formerly a U.S. Customs attorney, his private practice focuses on U.S. import regulation, U.S. export controls and other matters relating to international trade.

Image credit: Kyle T. Ramirez via Wikimedia Commons