CBP Enforcement Update – WPM

Dear Friends,

We wanted to take a break from Section 232/Section 301 issues (it is certainly an interesting time to be involved in international trade!) to let you know about a spike in certain types of U.S. Customs and Border Protection (“CBP”) enforcement actions we have been seeing recently. 

It seems that CBP is ramping up its enforcement of the rules involving the importation of non-compliant wood packaging material (“WPM”).  In the past month or so, CBP has issued sizeable penalties (i.e., hundreds of thousands of dollars) to several clients who sought to import merchandise on non-compliant WPM.  Given the amount of the penalties being assessed (which are for the full domestic value of the imported merchandise; not just for the value of the WPM) and the lack of clarity around how much mitigation CBP will ultimately afforded (if any), this is an issue that all importers should take additional steps to address.


Since 2005, U.S. Department of Agriculture (“USDA”) regulations have required that WPM (e.g., crates, pallets, boxes, and pieces of wood used to support or brace cargo) being imported into the United States be heat treated, or fumigated with methyl bromide, and include a visible, legible, and permanent mark certifying treatment.  These regulations implement certain international standards set forth by the International Plant Protection Convention (“IPPC”), to which the United States is a member, and are intended to protect domestic agriculture from the introduction of potentially injurious wood-boring pests (since untreated wood poses a risk of carrying such harmful pests).  CBP is responsible for enforcing these requirements at the border.

These requirements have been phased in over time and enforcement has been evolving.  Until recently, CBP’s position was that an importer had to have 5 documented violations before a penalty would be imposed.  Starting November 1, 2017, however, to motivate WPM compliance, CBP revised its position and now issues penalties for the first documented WPM violation. 

Enforcement Actions

An Emergency Action Notification (“EAN”) is issued to the importer when a WPM violation is discovered.  The EAN will usually demand that the WPM be re-exported within a certain period of time.  If the importer does not comply with the EAN, then CBP may impose liquidated damages up to the amount of the importer’s customs bond.  If the importer complies with the EAN, then liquidated damages will not be assessed.  In such a case, however, CBP may impose penalties.  Penalties are assessed at the domestic value of the merchandise.  We draw attention to “domestic value of the merchandise” because in the cases we have seen thus far have resulted in substantial penalties for seemingly minor violations (e.g., an improperly marked WPM (valued at $50), which is compliant in all other respects, results in a penalty assessment for the domestic value of the merchandise (valued at $500,000)).  Importers that receive penalty notices have the right to submit a petition for relief seeking mitigation. 


Generally, CBP treats importers as the responsible party with respect to WPM compliance (regardless of whether the importer is actually responsible for the WPM).  We, therefore, recommend that companies remind their foreign suppliers/carriers of these requirements and their responsibilities under your contract (i.e., your contracts with foreign suppliers should specify that the foreign supplier is required to supply IPPC-compliant WPM; your contract with the carriers should specify that they will confirm that only IPPC-compliant WPM is included in shipments to you, etc.).  This way, if you get hit with a significant penalty (and that penalty is not mitigated down to a de minimis level), you have some potential recourse.

We hope that this is helpful.  If you have any questions about CBP’s enforcement of this requirement, or how best to protect yourself commercially, please let us know.

Best regards,




Recent NAFTA Penalty Decision

Dear Friends,

We are writing to let you know about an all-too-common misunderstanding of the law by U.S. Customs and Border Protection that, as the attached penalty decision demonstrates, can be an expensive trap for the unwary.

The issue involves claims made under NAFTA that are later corrected/revoked by the importer after being informed by the exporter that the goods no longer qualify – and more specifically what the importer is liable for in such a situation.

In the situation involved in the attached decision, a U.S. company imported goods from a related party in Mexico and claimed NAFTA preference based on a NAFTA Certificates of Origin provided by the exporter/producer.  The NAFTA eligibility of the goods hinged on the fact that a key component was itself NAFTA originating.  The exporter/producer had a NAFTA Certificate of Origin covering this component from an unrelated supplier.  Based on the applicable rule of origin, the finished goods would originate, provided that this component originated.  Since it had a NAFTA Certificate of Origin from the unrelated component supplier, the exporter/producer certified that the finished goods were originating and the importer made claims based on the exporter/producer’s NAFTA Certificate of Origin.

Years after the claims were made, the unrelated component supplier advised that its component was actually of Chinese origin and revoked its NAFTA Certificates of Origin.  This resulted in the finished goods no longer qualifying for NAFTA.  After confirming this analysis, the exporter/producer notified the U.S. importer that the goods it had previously certified as being NAFTA originating no longer qualified.  The U.S. importer then filed a corrected declaration with CBP at the appropriate Port of entry pursuant to 19 C.F.R. §181.21(b).  The corrected declaration identified all of the effected entries over multiple years.  In terms of duties, however, the importer only tendered the duties and Merchandise Processing Fees on the unliquidated entries.  The importer’s position was that it had acted with reasonable care when it relied on the NAFTA Certificate of Origin voluntarily provided by the exporter/producer (and the exporter/producer acted reasonably when it relied on a facially valid NAFTA Certificate of Origin for the component voluntarily provided by the third-party supplier).  The fact that the supplier revoked its certification years after the fact does not make those claims negligent acts.  If the importer was not negligent, there was no basis to reopen the liquidated entries.

The Port disagreed and chose to treat the corrected declaration as a prior disclosure (i.e., an admission of a culpable violation of the law).  Since the importer did not tender all of the duties covered by the “prior disclosure,” it was deemed to be invalid and the Port initiated a penalty action.  The Port sought duties and MPF of approximately $400,000 and a penalty based on a claim of negligence of approximately $800,000.  After much back and forth, the importer was ultimately able to get the case referred to CBP Headquarters for a decision.  As you will see from the attached, CBP Headquarters confirmed that an importer that relies on a facially-valid NAFTA Certificate of Origin is exercising reasonable care and that, if that certificate is later revoked, the importer is not liable for the duties or MPF on the liquidated entries.  The Port’s $1.2 million demand was remitted in full.

This an issue that any company that imports under NAFTA should be aware of, as the approach taken by the Port involved here is not an isolated instance.  We have 3 similar cases currently pending at other Ports and are aware of at least one other situation handled by another firm.  Importers should remember (particularly since CBP seems not to) that NAFTA (unlike our more recent FTAs) is an exporter-based agreement, which means that an importer who relies on a facially-valid NAFTA Certificate of Origin voluntarily provided by the exporter has a good argument that it exercised reasonable care.  If that certificate later turns out to be incorrect, then the importer will be liable for the duties and fees on the unliquidated entries (i.e., the past 10 months or so), but not on the liquidated ones.  As demonstrated by the attached, remembering this can help ensure that the company does not tender monies to the government unnecessarily.

We hope you find this helpful.  If you have any questions, please let us know.

Best regards,