Customs & Border Protection Enforcement Update

As fall begins, the trade community is faced with increased enforcement by CBP in two important areas.

First, CBP Headquarters recently issued a Cargo Service Message (CSMS 17-000612) concerning potential penalties which may be assessed for “wood packaging materials” violations effective November 1, 2017.

As many companies know, nonexempt wood packaging material (WPM) imported into the United States must have been treated at approved facilities at places of origin to kill harmful timber pests that may be present. The WPM must display a visible, legible, and permanent mark certifying treatment, preferably in at least 2 sides of the article. The mark must be approved under the International Plant Protection Convention (IPPC) in its International Standards of Phytosanitary Measures (ISPM 15) Regulation of wood packaging material in international trade (https://www.ippc.int/en/publications/640/).

Any WPM from foreign origin found to be lacking appropriate IPPC-compliant markings or found to be infested with a timber pest is considered not properly treated to kill timber pests and in violation of the regulation. The responsible party (importer, carrier, or bonded custodian) for the violative WPM must adhere to the Emergency Action Notification stipulations and be responsible for any costs or charges associated with disposition.

The purpose of the WPM requirement is to prevent the introduction of exotic timber pests which can have devastating effects to trees if released into the U.S.

U.S. Customs and Border Protection is responsible for enforcing the regulation at ports of entry. To motivate WPM compliance, effective November 1, 2017, responsible parties with a documented WPM violation may be issued a penalty under Title 19 United States Code (USC) § 1595a(b) or under 19 USC § 1592. This is a change from the previous published threshold of 5 violations. There will be no yearly reset for calculating repeat violations as each WPM violation may incur a penalty.

Since 2005, the year the regulations went into effect, companies importing violative wood packaging materials have been provided options including re-exporting the imported goods or removing the violative wood packing materials prior to release. It appears that there may be an increase in the number of cases of violative WPM arriving in the U.S., thus CBP will now be allowed to assess penalties under either 19 USC 1595 or 19 USC 1592. Companies are urged to relay this information to their foreign suppliers and carriers to ensure that no violative wood packaging materials are being used.

Second, the port of Boston has issued a Public Information Notice addressing an increase in Importer Security Filing (ISF) violations, consisting mainly of late filings. Shipments which arrive in the port without an ISF transmission are automatically put on CBP hold until the ISF transmission is submitted. This increase in ISF holds and possible examinations has caused delays in the processing of other shipments, resulting in potential storage charges at the terminal. Due to the increased volume in late filed ISF submissions, Boston officials have advised the trade community that they may begin issuing liquidated damage claims when necessary in order to ensure compliance by importers. The port of Norfolk has also issued liquidated damage claims and it is likely that other ports will follow suit. Importers, customs brokers and freight forwarders should ensure that all ISF transmissions are timely filed in accordance with the applicable regulations in 19 CFR 149.

If you have questions or concerns please contact the Law Offices of Paula M. Connelly for additional information.

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