CBP Updates its 3-Phase Plan for Implementing the WPM Treatment and Marking Regulations (Second Phase Started Feb 1st)

This document contains detailed information on the 3-phase implementation plan for the Animal and Plant Health Inspection Service's (APHIS') wood packaging material (WPM) treatment and marking regulations which took effect September 16, 2005.

Phase I of the plan began September 16, 2005. Phase II recently began on February 1,2006, and Phase III, the last scheduled phase, begins on July 5, 2006.

Revisions Contained in Updated Version

In doing a side-by-side comparison, there appears to be at least three revisions of note between the initial plan and the revised plan:

Returns to or from Canada and Mexico. In the initial version of CBP's implementation plan, CBP stated that it was still in discussion with Canada and Mexico on the best way to implement returns of noncompliant WPM, and that the U.S. anticipated more instances of returned WPM on the U.S.' southern border.

In the revised version, CBP now states that Canada, Mexico, and the U.S. will allow their own origin shipments with non-compliant WPM to be returned providing the shipment did not leave the customs custody of the second country.

In addition, in cases of other country non-compliant WPM that have transited Canada or Mexico en route to the U.S. and are discovered at a U.S. port of entry, Canada or Mexico may allow the shipment to move in bond and under close scrutiny to an exit port.

The reciprocal is also true; that is, other country non-compliant WPM that have transited the U.S. en route to Canada or Mexico and are discovered at a Canadian or Mexican port of entry, may transit the U.S. on a T&E as long as any pest risk is mitigated and a PPQ Form 523 (clearly stating the transit and export conditions) accompanies the shipment. If there is a paper inbond CBP document, it must be marked to indicate the intended disposition of the shipment.

The "reexport" of violative WPM refers to IEs or T&Es under bond. The revised plan states that: "For purposes of CBP implementation of the USDA regulation, "reexport" will refer to the immediate exportation (IE) or transportation and exportation (T&E) of violative WPM under bond and, where the violative WPM cannot be separated from the accompanying merchandise, the IE or T&E of the violative WPM and any accompanying merchandise. By regulation, no treatment options for WPM being imported into the United States are available.

(The prior version used the term 'immediate export' rather than IE or T&E, and did not mention export under bond.)

IT or T&E shipments with violative WPM prohibited transit except under certain stringent conditions. For Phase II and Phase II, the revised plan states that IT (Immediate transportation) or T&E shipments found to contain violative WPM will not be permitted to transit except under certain stringent conditions.

(The prior version stated that IT or T&E shipments containing violative WPM will not be permitted transit.)

Reminder on Phase II Implementation

CBP states that Phase II is for the period of February 1, 2006 - July 4, 2006 and 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. (Note that the only revision to the Phase II instructions is the addition of certain text between the symbols.)

(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 Transportation and Exportation (T&E) shipments found to contain violative WPM will not be permitted to transit except under certain stringent conditions. 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.

(Note that besides detailing Phases 1 - III, CBP's plan contains a Sample Notice of Violation, the Procedure for the Separation of Non-Compliant WPM, a List of WPM Exemptions and Exceptions, the Procedures for Processing Returned WPM, and an Implementation Matrix for the three phases.)

(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's Revised WPM Implementation Plan (posting date of 02/01/06) available at http://www.cbp.gov/linkhandler/cgov/import/commercial_enforcement/wpm/phase2_implementation.ctt/phase2_implementation.doc

BP Note

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.