Let's Talk About Bugs
The United States Department of Agriculture has the important obligation to protect American farms, orchards, forests, parks and backyards against the damage that can be caused by plant diseases and pests that enter the United States through our ports of entry. This is derived from the Plant Protection Act, 7 USC 7701. For commercial importers, the most common pest vector is the humble wooden pallet, which can house and transport a number of pests including horntails (AKA wood wasps).
The problem with these critters and many like them is that they bore into trees to lay eggs. That can result in bugs emerging from processed lumber or even from completed structures.
When pests are discovered by Agriculture Inspectors at port of entry, the USDA will issue an Emergency Action Notice. Generally, the EAN requires that the offending shipment be turned around and exported from the U.S. 7 CFR 319.40-3. To prevent that from happening, the USDA has adopted a system under which wood packing material may be imported if there is adequate evidence of it having been treated to prevent infestation. The required treatment must be consistent with the international ISPM-15 standard and the material must be marked accordingly.
There has been a lot of recent enforcement action on this of late. In September, CBP issued a notice stating that "to motivate" compliance, it was alerting the trade that CBP may issue penalties for single violations. This was a change from the prior practice of not issuing a penalty until there had been five violations. CBP further noted that there would be no yearly reset for calculating repeat violations. See CSMS #17-000612 (Sep. 26, 2017).
One company that ran afoul of the wood packing material ("WPM") rules is Andritz Sundwig GmbH. Andritz imported $39.5 million in machinery for the production of steel and aluminum in two shipments. For each shipment, it received an Emergency Action Notice demanding the exportation of the cargo. Rather than comply with the EAN, Andritz filed a protest challenging the exclusion and requested accelerated disposition to get the case before the U.S. Court of International Trade. The resulting case is Andritz Sundwig GmbH v. United States.
Andrtiz asked the Court to review the denial of the protest and the demand for immediate exportation. Andritz also asked for declaratory judgment that the EANs are invalid. Andrtiz wanted the Court to order CBP to permit the merchandise to be separated from the WPM and the WPM fumigated.
In response, the United States moved to dismiss the case on the grounds that the Court of International Trade lacked subject matter jurisdiction over the dispute.
In most cases, a denied protest is subject to review at the CIT. That is usually non-controversial. However, a protest of the exclusion of merchandise is slightly different than the typical protest over classification, value or rate of duty. Exclusion can only be protested when it is "under any provision of the customs laws." 19 USC 1514(a)(4).
The authority for the EAN, according to the CIT, is not the "customs laws." Rather, it is the Plant Protection Act. The EAN states that the Department of Agriculture is the supervisory agency involved. As a result, the CIT held the denied protest was not properly before it. Moreover, the case was not within the Court's residual jurisdiction, which also relates generally to tariffs, duties, quantitative restrictions (other than for public health and safety) and the administration thereof. The case belongs in the U.S. District Court for the Southern District of Texas, to which the case was transferred.
One thing to note is that the CBP administrative message notes that a penalty for an EAN would be issued pursuant to section 1592 or section 1595a of Title 19 of the U.S. Code. Title 19, as you likely know, is "Customs Duties," and penalty cases (at least under 1592) are routinely before the CIT. This makes me think that the CIT has not seen the last case involving an APHIS penalty.
Also, as a matter of grammar, I am not following the government's lead and stating that goods subject to an EAN must be re-exported. To me, that implies that they merchandise was previously exported from the U.S. I think the better usage is that the goods need to be exported, for the first time. Anyone have a reason why I am wrong about that?
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From http://mobugs.blogspot.com/
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When pests are discovered by Agriculture Inspectors at port of entry, the USDA will issue an Emergency Action Notice. Generally, the EAN requires that the offending shipment be turned around and exported from the U.S. 7 CFR 319.40-3. To prevent that from happening, the USDA has adopted a system under which wood packing material may be imported if there is adequate evidence of it having been treated to prevent infestation. The required treatment must be consistent with the international ISPM-15 standard and the material must be marked accordingly.
There has been a lot of recent enforcement action on this of late. In September, CBP issued a notice stating that "to motivate" compliance, it was alerting the trade that CBP may issue penalties for single violations. This was a change from the prior practice of not issuing a penalty until there had been five violations. CBP further noted that there would be no yearly reset for calculating repeat violations. See CSMS #17-000612 (Sep. 26, 2017).
One company that ran afoul of the wood packing material ("WPM") rules is Andritz Sundwig GmbH. Andritz imported $39.5 million in machinery for the production of steel and aluminum in two shipments. For each shipment, it received an Emergency Action Notice demanding the exportation of the cargo. Rather than comply with the EAN, Andritz filed a protest challenging the exclusion and requested accelerated disposition to get the case before the U.S. Court of International Trade. The resulting case is Andritz Sundwig GmbH v. United States.
Andrtiz asked the Court to review the denial of the protest and the demand for immediate exportation. Andritz also asked for declaratory judgment that the EANs are invalid. Andrtiz wanted the Court to order CBP to permit the merchandise to be separated from the WPM and the WPM fumigated.
In response, the United States moved to dismiss the case on the grounds that the Court of International Trade lacked subject matter jurisdiction over the dispute.
In most cases, a denied protest is subject to review at the CIT. That is usually non-controversial. However, a protest of the exclusion of merchandise is slightly different than the typical protest over classification, value or rate of duty. Exclusion can only be protested when it is "under any provision of the customs laws." 19 USC 1514(a)(4).
The authority for the EAN, according to the CIT, is not the "customs laws." Rather, it is the Plant Protection Act. The EAN states that the Department of Agriculture is the supervisory agency involved. As a result, the CIT held the denied protest was not properly before it. Moreover, the case was not within the Court's residual jurisdiction, which also relates generally to tariffs, duties, quantitative restrictions (other than for public health and safety) and the administration thereof. The case belongs in the U.S. District Court for the Southern District of Texas, to which the case was transferred.
One thing to note is that the CBP administrative message notes that a penalty for an EAN would be issued pursuant to section 1592 or section 1595a of Title 19 of the U.S. Code. Title 19, as you likely know, is "Customs Duties," and penalty cases (at least under 1592) are routinely before the CIT. This makes me think that the CIT has not seen the last case involving an APHIS penalty.
Also, as a matter of grammar, I am not following the government's lead and stating that goods subject to an EAN must be re-exported. To me, that implies that they merchandise was previously exported from the U.S. I think the better usage is that the goods need to be exported, for the first time. Anyone have a reason why I am wrong about that?
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