As I wrote in my blog in October, the Department of Homeland Security Bureau of Customs and Border Protection (CBP) has reversed a previous policy and now has the option to impose a financial penalty on importers when any of their shipments does not comply with the international standard for wood packaging (International Standard for Phytosanitary Measure Number 15 – or ISPM#15). The penalties are assessed under Custom’s authority per Title 19 United States Code (USC) § 1595a(b) or 19 USC § 1592.
The Department of Agriculture has its own legal authority to penalize shippers whose wood packaging violates regulations implementing ISPM#15. However, USDA not taken the equivalent step of using its own authority to crack down on violators. Why not?
APHIS’ legal authority stems from the Plant Protection Act of 2000 [7 U.S.C. §7701, et seq. (2000)] (The text is posted here)
This law provides broad authority to APHIS to penalize non-compliant importers, using both civil and criminal penalties. Under Section 7734 (b):
“Any person that violates this chapter … may, after notice and opportunity for a hearing on the record, be assessed a civil penalty by the Secretary…” The penalty can vary from $50,000 to $1 million, depending on whether the importer is an individual or a corporation; the number of violations adjudicated in the proceeding; the gravity of the violation; and the importer’s ability to pay. Civil penalties can be assessed regardless of whether the violation was intentional (in the language of the statute, “willful”).
Under Section 7734(a), the Department may seek criminal penalties in cases when the importer “knowingly” violated the law and its implementing regulations. Criminal penalties include both fines and imprisonment. To apply a criminal penalty, USDA must convict the importer in a trial – prove the violation beyond a reasonable doubt.
It is puzzling that USDA has not acted on this authority.
As we all know, the biological diversity of America’s forests’ is severely threatened by wood-borers that can enter the country in wood packaging. Tree mortality caused by non-native pests has been estimated to cost municipalities $1.7 billion per year (Aukema et al. 2011). For discussions of introduced pests’ impacts, see the sources listed at the end of this blog.
Nearly 12 years after APHIS adopted regulations implementing the formal International Standard for wood packaging, significant numbers of shipments that do not comply with the regulations continue to arrive. In the fiscal year that ended on September 30, Customs detected 2,000 shipments in which the wood packaging did not bear the mark certifying that the wood had been treated in accordance with ISPM#15. In nearly 900 additional shipments, CBP detected damaging pests in the wood packaging. (For more detail on this issue, see my blog from last February.) link. So, the need to improve compliance is manifest. Imposing a financial penalty strikes me as an available and useful strategy to achieve that improvement.
The new CBP policy is a much-needed step. Now USDA should reinforce that action by implementing its own enforcement powers. The USDA’s Office of General Counsel and APHIS should be asked what is preventing implementation and what can be done to move this forward. Effective action to interdict forest pests requires strong enforcement by both CBP and USDA. Right now, it looks like the Department of Homeland Security cares about U.S. forests more than the Department of Agriculture.
SOURCES
Aukema, J.E., B. Leung, K. Kovacs, C. Chivers, K. O. Britton, J. Englin, S.J. Frankel, R. G. Haight, T. P. Holmes, A. Liebhold, D.G. McCullough, B. Von Holle.. 2011. Economic Impacts of Non-Native Forest Insects in the Continental United States PLoS One September 2011 (Volume 6 Issue 9)
Background on forest pest damages:
Campbell and Schlarbaum, Fading Forest reports http://treeimprovement.utk.edu/FadingForests.htm
Lovett, G.M., M. Weiss, A.M. Liebhold, T.P. Holmes, B. Leung, K.F. Lambert, D.A. Orwig , F.T. Campbell, J. Rosenthal, D.G. McCullough, R. Wildova, M.P. Ayres, C.D. Canham, D.R. Foster, S.L. LaDeau, and T. Weldy. 2016. Nonnative forest insects and pathogens in the United States: Impacts and policy options. Ecological Applications, 0(0), 2016, pp. 1–19. DOI 10.1890/15-1176.1 Recommendations available at www.caryinstitute.org/tree-smart-trade
Posted by Faith Campbell
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