CBP's 9th Update of its FAQ on APHIS' WPM Treatment and Marking Regulations

(CBP has previously stated that Phase II of CBP's enforcement began on February 1, 2006, under which shipments containing violative WPM pallets and crates must be exported (violative WPM, compliant WPM and merchandise) if the Port Director determines that it is not feasible to separate merchandise from the violative WPM or if such separation is not requested. If such separation is feasible and requested, the violative WPM will be exported after separation occurs. Also under Phase II, IT and T&E shipments found to contain violative WPM will not be permitted to transit except under certain stringent conditions.

Phase III enforcement begins July 5, 2006, under which all shipments containing violative WPM will be ordered exported if the Port Director determines that it is not feasible to separate merchandise from the violative WPM or if such separation is not requested. A new enforcement action also takes effect July 5, 2006 - see below.)

New Phase III Enforcement Action if Live Wood Boring Pests Found in WPM

According to CBP, effective with the implementation of Phase III on July 5, 2006, CBP will require the export of any marked or unmarked WPM determined to be infested with any live wood boring pest of the families Cerambycidae, Buprestidae, Siricidae, Cossidae, Curculionidae, Scolytidae, Platypodidae, or Sesiidae.

Under APHIS policy, CBP states that treatment in these cases will be conducted only as a safeguarding measure if it is required to minimize pest dispersal, and export will still occur.

(According to APHIS sources, prior to July 5, 2006, APHIS is allowing treatment (e.g., fumigation) of marked WPM that is found with these live wood boring pests.)

Four New FAQs Added

CBP states that additional questions have been raised, which are addressed below:

Definition of the 'United States'. CBP states that for purposes of importing WPM into the U.S., CBP uses the USDA definition of "United States," which consists of the 50 states, American Samoa, District of Columbia, Federated States of Micronesia, Guam, Northern Mariana Islands, Puerto Rico, and Virgin Islands of the United States. WPM traveling solely between ports in the above-listed areas will, for purposes of enforcement of the WPM regulation, be considered to be domestic WPM.

Note that CBP defines the "Customs territory of the United States" as the 50 states, District of Columbia, and Puerto Rico. Therefore, some goods coming from outside the Customs territory will be considered to be using domestic WPM.

Finally, other countries will use other definitions. Canada, for example, exempts only continental U.S. WPM. In other words, WPM from Hawaii or any U.S. territory or commonwealth will need to be treated and marked for transit into Canada; only WPM from the contiguous 48 states, Alaska, and the District of Columbia are exempt from marking when going directly to Canada. For questions about a particular country's implementation of the ISPM 15, contact the appropriate NPPO officer. A list of contacts is maintained at https://www.ippc.int/IPP/En/nppo.jsp

Separation of violative WPM from merchandise for a shipment that can beidentified by a separate bill as a part of NVOCC consolidated cargo. As is the case with any shipment held by CBP for non-compliance with the WPM rule, CBP states that the importer or other party of interest may request that CBP allow the separation of WPM from the imported commodities. The requesting party must submit a completed CBP 3499 with all evidentiary materials required by the Implementation Plan. Part of the required material is evidence of commitment to export the non-compliant WPM that is separated from the merchandise referenced in the CBP 3499. In the case of a consolidated shipment, any affected importer or other party of interest may make application for separation. Export of any shipment (and export of the violative WPM separated from any shipment) remains the responsibility of the importer or other party of interest.

After separation, the cargo and non-violative WPM will be released. Export of violative WPM will be at the expense of the importer or other party of interest and may be accomplished via any carrier. The importer or other party of interest responsible for the exportation is not limited to using the services of the importing carrier, whether VOCC or NVOCC. Ordinarily, this will mean that entry will be denied and an IE will be cut. If movement outside of the original U.S. port becomes necessary to cause the ordered exportation, it will be on a restrictive T&E 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 T&E movement.

IPPC mark is not visible on dunnage because of in-transit damage or on bracing ifsmaller pieces are cut from one 4x4. According to CBP, dunnage presents unique challenges. Often, pieces of dunnage are cut to fit a load and may, during that process, be separated from the IPPC marking. Other times, during the course of transit, dunnage is broken, crushed, abraded, or otherwise damaged; in these cases, too, pieces of dunnage will likely be separated from their compliance mark.

For purposes of enforcement of this regulation as it relates to dunnage, CBP intends to exercise its discretionary authority so that if CBP believes that cut or damaged pieces of dunnage are part of a larger piece of properly marked wood, CBP will determine that the unmarked dunnage has been treated and marked, and consider the unmarked dunnage to be non-violative.

Pallets from cruise ships that load stores in the U.S. before going foreign, andbring the empty pallets back to the U.S. CBP states that these pallets need to be properly marked. There is no special exception granted by USDA for cruise ships. Therefore, CBP views WPM from cruise ships to be the same as any other WPM. Empty pallets must be treated and marked when coming from foreign.

Answers to Three FAQs Amended

Level of compliance with the requirement to annotate shipping documents with a statement regarding Canada or U.S. origin wood, CBP states that not all shipments need a statement to be considered compliant under the Canada-U.S. exception. Only non-Canadian origin merchandise coming directly to the U.S. on Canadian-origin WPM needs a statement to be considered for the exception. CBP does not have data to indicate the number of shipping documents with statements. Overall, Canada is extremely compliant. For example, since February 1, 2006, examined lines of Canada origin merchandise have approached 100% compliance.

Taking advantage of the Canada origin exemption by maintaining a stockpile of Canada and U.S. origin WPM in the EU and using only that WPM for cargo to the U.S. and Canada. CBP states that the Canada and U.S. origin wood exception is based on a reciprocal agreement between these two countries only. The exception applies only to U.S. or Canada origin wood in commerce between the U.S. and Canada. In other words, the WPM need to be transiting directly into the U.S. from Canada or directly into Canada from the U.S.

What the approved mark looks like. According to CBP,marks will vary by country and treatment establishment, as well as size, shape, and color. What the mark must include is the IPPC trademarked graphic symbol, the ISO two-letter country code for the country that produced the wood packaging material, a unique number assigned by the national plant protection agency of that country to the producer of the wood packaging material, and an abbreviation disclosing the type of treatment. In addition to these four required components, marks may also include other information.

APHIS has stated that they recognize the Guatemalan "TT" and "BM" markings as being valid indicators of treatment type. Based on this, shipments with such markings from Guatemala will be considered compliant.

(See ITT's Online Archives or 02/03/06 news 06020310 for BP summary of CBP's8th update to this FAQ.See ITT's Online Archives or 10/26/05 news, 05102605, for BP summary of CBP's 7th update of the FAQ. See ITT's Online Archives or 10/20/05 news, 05102010 for BP summary of CBP's 6th update of the FAQ. See ITT's Online Archives or 10/13/05 news, 05101310, for BP summary of CBP's 5th update of FAQ. See ITT's Online Archives or 09/19/05 news, 05091910, for BP summary of CBP's 4th update of FAQ. See ITT's Online Archives or 09/15/05 news, 05091510, for BP summary of CBP's 3rd update of FAQ. See ITT's Online Archives or 09/12/05 news, 05091210, for BP summary of CBP's 2nd update of the FAQ. See ITT's Online Archives or 08/24/05 news, 05082405, for BP summary of CBP's 1st update to the FAQ. See ITT's Online Archives or 08/09/05 news, 05080905, for BP summary of CBP's initial FAQ.)

CBP's FAQ on its APHIS WPM Treatment and Marking Regulations (dated March 23, 2006) available at http://www.cbp.gov/linkhandler/cgov/import/commercial_enforcement/wpm/wpm_faq.ctt/wpm_faq.doc