CBP Details 3-Phase Implementation Plan for APHIS' Sept 16th WPM Treatment and Marking Regulations

(The U.S. and other countries have committed to enforce the International Standards for Phytosanitary Measures (ISPM) 15 entitled, "Guidelines for Regulating Wood Packaging Material in International Trade." ISPM 15 calls for affected WPM to be either heat treated or fumigated with methyl bromide and marked in a certain way certifying treatment (with certain exemptions for most WPM from Canada and a limited exception for WPM from Mexican border states).

Affected WPM includes WPM other than manufactured wood material, loose wood packing materials, and wood pieces less than 6 mm thick in any dimension, that are used for or for use with cargo to prevent damage, including, but not limited to, dunnage, crating, pallets, packing blocks, drums, cases, and skids. See ITT's Online Archives or 07/08/05 news, 05070810, for BP reminder on these WPM treatment/marking requirements.)

Compliance Enforcement with APHIS' Regulations Will be Phased-In

CBP states that it conducted a special operation in July 2005 to determine the baseline level of WPM compliance. Based on examination results, CPB will perform phased-in compliance enforcement of the APHIS' WPM regulation, highlights of which are provided below:

Phase I - Informed Compliance (09/16/05 - 01/31/06)

Phase I of WPM implementation will consist of an informed compliance initiative. During Phase I, if CBP discovers WPM that are not properly marked (that is, lacking the proper IPPC (International Plant Protection Convention) logo) during the course of any visual examination of any cargo, a Notice of Violation will be posted in a prominent location on the goods. A copy will also be included in the entry packet where possible.

CBP states that the intent of these steps is to notify the broker and the recipient that a violation has occurred and that CBP has chosen to temporarily exercise its enforcement discretion. These discoveries are considered violations of the WPM rule.

CBP notes that the enforcement of WPM requirements is a separate process from the normal course of pest interdiction duties conducted by CBP Agriculture Specialists. In every case of the discovery of a pest infestation, the protocol associated with safeguarding or eradication of the pest threat will supersede WPM enforcement. Once a pest threat has been eliminated, the WPM enforcement will be applied.

National and port account managers will work with their accounts to answer questions and encourage compliance with the regulation.

Phase II - Enforcement for Wooden Pallets and Crates; Informed Compliance for Other WPM (02/01/06 - 07/04/06)

CBP states that Phase II continues informed compliance efforts started in Phase I. However, enforcement of the rule will begin to impact cargo shipments that have non-compliant wooden pallets or crates.

(According to CBP, the term "pallets", when used in this document, will include single wooden pallets and all pallets that are part of a unitized packaging container, such as wooden pallets that comprise the base of a carton or crate (for example, in shipments of motorcycles, machinery parts, pipe fittings, etc.) Wooden crates or lift vans constructed solely of manufactured wood (for example, plywood) are not regulated by the WPM rule. However, if other lumber is used in these crates, those pieces are covered by the WPM rule.)

Shipments containing non-compliant WPM other than pallets or crates.During Phase II, if CBP discovers WPM (other than pallets or crates) that are not properly marked (that is, lacking the proper IPPC logo) during the course of any visual examination of any cargo, a Notice of Violation will be posted in a prominent location on the goods. A copy will also be included in the entry packet where possible. The intent of these steps is to notify the broker and the recipient that a violation has occurred and that CBP has chosen to temporarily exercise its enforcement discretion. These discoveries are considered violations of the WPM rule.

Shipments containing non-compliant wood pallets or crates.CBP states that shipments containing non-compliant wood pallets or crates will be held and will not be released. Immediate Transportation (IT) and Transporation and Exportation (T&E) shipments found to contain violative WPM will not be permitted to transit. The Agriculture Specialist will complete a USDA Emergency Action (EAN) Notification (PPQ-523) on the violative materials.

The importer, or the importer's representative (if one is available), will be notified by CBP of the situation. The importer or other party of interest may request separation of the imported merchandise from the violative WPM.

If the Port Director determines that separation of the non-compliant crates from the cargo is not feasible, or if separation is not requested, then the entire shipment (violative WPM, compliant WPM, and merchandise) shall be ordered exported from the U.S. in accordance with APHIS' rule.

CBP states that the Port Director shall order the shipment to be exported from the U.S. at the importers' or party of interest's expense. It is irrelevant if the shipment contains a mixture of compliant and violative WPM.

If the entire shipment is ordered exported, any original entry must be cancelled and an Immediate Exportation entry (entry type 63) must be executed and provided to the Port Director to document the export movement.

If movement outside of the original U.S. port becomes necessary to cause the ordered exportation, it will be on a restrictive T&E entry (entry type 62) in conjunction with an appropriately executed USDA Emergency Action Notification (EAN) (PPQ-523). The EAN will provide and document restrictions as to routing, diversion and authorized timeframe to complete the restricted transportation and exportation movement.

In the event that the identity of the importer is unknown or otherwise not available to CBP, the importing carrier may be held liable for expenses related to the costs of exportation of the non-compliant WPM and associated cargo.

In the event that the merchandise is abandoned, the shipment will go to General Order (G.O.) and be handled under established procedures. If G.O. merchandise is ultimately auctioned, all noncompliant WPM must be exported at the expense of the successful bidder.

If the Port Director determines that separation of the violative WPM from the cargo is feasible, then the cargo will be separated at the importer's expense at a time and place determined by the Port Director.

After separation, the Port Director will order violative WPM to be exported per 7 CFR 319.40 at the importers' or party of interest's expense.

If only the violative WPM is to be exported, the importer or party of interest (working in conjunction with the exporting carrier) must supply evidence sufficient to Port Director's satisfaction that the non-compliant WPM will be removed from the U.S. This proof may include, but is not limited to, a bill of lading, statement on carrier letterhead, U.S. export or foreign entry documents, etc.

In the event that the identity of the importer is unknown or otherwise not available to CBP, the importing carrier may be held liable for expenses related to the costs of exportation of the non-compliant WPM.

Phase III - Full Enforcement (on/after 07/05/06)

During Phase III, all informed compliance efforts at the shipment level under the WPM rule will be discontinued and if CBP discovers any WPM that are not properly marked during the course of any visual examination of any cargo, the shipment will be considered in violation of the WPM rule.

All other operational elements of Phase II remain in effect.

Sample Notice of Violation

CBP has included in its plan, a sample Notice of Violation which will be provided for shipments that have been determined not to be in compliance with the WPM treatment and marking requirements during Phase I of its enforcement.

Procedures for Separation of Non-Compliant WPM

CBP's implementation plan provides detailed information on the procedures that should be followed in order to separate non-complaint WPM from compliant WPM or associated merchandise.

Specific Exemptions from WPM Treatment and Marking Requirements

In addition, CBP has included in its implementation plan details on the exemptions from APHIS' WPM treatment and marking requirements (e.g., manufactured wood material such as fiber board, plywood, whisky, and wine barrels, and veneer, etc.).

Procedures for Processing Returned U.S. Merchandise Containing WPM

CBP states that since the regulation of WPM is an international standard it is likely that some shipments of U.S. exports will contain WPM that are not compliant with the standard that may be detected by other countries. They may determine the WPM to be inadmissible and order that non-compliant WPM be re-exported to the U.S. (CBP notes that not all countries are phasing in their WPM requirements.)

CBP states that if CBP Officers or Agriculture Specialists encounter a shipment of returned U.S. merchandise that contains non-compliant WPM, CBP will provide a sectional release for the merchandise and WPM upon reasonable submission of proof that the merchandise did not enter the commerce of any other country as provided for under 19 CFR 4.35(g).

CBP also includes specific instructions for returns to or from Canada and Mexico.

(See ITT's Online Archives or 09/14/05 news, 05091405, for previous BP summary on the three-phase enforcement plan for WPM treatment and marking requirements.)

CBP WPM Implementation Plan (posted 09/12/05) available at http://www.cbp.gov/linkhandler/cgov/import/commercial_enforcement/wpm/Implementation_plan.ctt/implementation_plan.doc.