Challenge of U.S. Forest Protection Rule (Asian Longhorned Beetles)

On November 11, 1998, Hong Kong filed a WTO complaint against the United States over a new Animal and Plant Health Inspection Service (APHIS) rule requiring solid wood packing materials from China and Hong Kong to be heat treated, fumigated or treated with preservatives before being exported to the U.S.(1) APHIS adopted the rule in response to recent infestations of the Asian Longhorned Beetle traced to pallets, crates, and other wooden packing materials from China and Hong Kong.(2)

The rule, which applies to shipments that leave China and Hong Kong after December 17, 1998, also requires shippers to certify that their wood packing materials have been treated.(3) The cost of treating wooden pallets for the beetles has been estimated at between $3 and $27 per pallet.(4)

The beetles, which face no natural predators in the U.S., cannot be eradicated by pesticides once they have infested a tree.(5) The only way to get rid of them is to uproot affected trees and burn them.(6) APHIS officials already have had to uproot and burn thousands of trees in the Brooklyn, New York area after discovering an infestation of the beetles.(7)

The beetles favor hardwood trees, including maples, poplars, elms, willows, evergreens and fruit trees.(8) APHIS officials estimate that if left unchecked, the beetles would cause damage exceeding $41 billion.(9) Besides such financial damage, APHIS officials also noted damage to the aesthetic value of street and backyard trees; however, they could not determine this value and, thus, did not include it in their total damage estimate.(10) U.S. Department of Agriculture officials predict that if the beetles begin to infest U.S. forests, the damages could be as high as $138 billion.(11)

The U.S. included Hong Kong in the ban, even though the Asian Longhorned Beetle is not native to Hong Kong, because "about half of the mainland's [China's] exports to the United States come through Hong Kong. . . ."(12) Hong Kong officials claim the ban is discriminatory because Chinese exports to the U.S. go through other nations that are not covered by the ban.(13) They also claim that the U.S. provided neither a scientific justification for the ban nor a risk assessment as required by WTO Sanitary and Phytosanitary rules.(14) Chinese officials have also criticized the rule, but China is not a member of the WTO, and thus cannot file or join in a complaint.(15) U.S. officials estimate that up to half of China's exports to the U.S., which totaled $62.6 billion in 1997, could be affected by the ban.(16) In fact, the U.S. is the biggest export market for China, accounting for 40 percent of all Chinese exports.(17) China maintains a trade surplus with the U.S., exporting to the U.S. five times more than it imports from the U.S.(18)

1. See Douglas P. Norlen, "Hong Kong Registers WTO Complaint Over U.S. Wood Crate Ban; Canada to Follow," Bureau of National Affairs, Nov. 18, 1998.

2. See 63 Fed. Reg. 50,099.

3. See Norlen, supra note 24.

4. See Tom Baldwin & P.T. Bangsberg, "USDA Acts Ahead of Pallet Ban," Journal of Commerce, Nov. 17, 1998.

5. See Tom Baldwin, "Bug Casts Giant Shadow," Journal of Commerce, Sep. 28, 1998.

6. See 63 Fed. Reg. at 50,101.

7. See id.

8. See Baldwin, supra note 28.

9. See 63 Fed. Reg. at 50,106.

10. See id.

11. See Baldwin & Bangsberg, supra, note 26.

12. 63 Fed. Reg. At 50,101.

13. See Norlen, supra note 24.

14. See id.

15. See P.T. Bangsberg, "China Criticizes 'Unfair' Beetle Ban," Journal of Commerce, Sep. 22, 1998.

16. See Baldwin & Bangsberg, supra note 26.

17. See Liz Sly, "China Calls U.S. Trade Restrictions Over Beetle Unfair, Might Retaliate," Chicago Tribune, Sep. 16, 1998.

18. See id.

Challenge of U.S. Forest Protection Rule (Asian Longhorned Beetles) -  is from the November 1998 Harmonization Alert