Lacey ACT – Phase VII – Enforcement December 1, 2024!
UPDATE 9/5/2024:
USDA reminded importers that APHIS Lacey Act Phase VII enforcement begins Dec 1, 2024. The Federal Register Notice is posted with guidelines and the HTS code list.Background
The Lacey Act (“the Act”), first enacted in 1900, was originally designed to address the issue of bird poaching. In 2008, the Farm Bill included sizable amendments to the Act and extended the protections to a much larger group of plants and plant products. It also made it illegal to import certain products without a Lacey Act Import Declaration. The amendments focused on illegal logging and harvesting of wild plants, practices often linked to terrorist funding, political instability, deforestation, and unlawful trade. Importation of plants and plant products must be done in a manner that ensures they were harvested legally.
Current requirements
The Lacey Act requires a declaration “upon importation”. That means it is required at the time the shipment lands in United States’ jurisdiction. The vast majority of Importers will file their declarations in the US Customs & Border Protection (CBP) Automated Commercial Environment (ACE) system using the Lacey Act Message Set at or before the shipment arrival. Animal and Plant Health Inspection Service (APHIS) will also accept declarations at Cargo Release or when the Entry Summary 7501 if filed in ACE.
The Lacey Act declaration must be filed/signed by the Importer of Record, or their designated agent (e.g., Customs Broker), with the appropriate Power of Attorney.
Declarations can also be filed electronically via the Lacey Act Web Governance System (LAWGS). Until CBP implements a module in ACE for filing declarations for imports into Foreign Trade Zones (FTZs), LAWGS provides that capability. It will allow large uploads of Lacey Act declaration data using XML. The use of LAWGS for FTZs does require a serial number. This is also the APHIS web-based system for importers than may typically file a paper declaration. Although electronic submission is the preferred method, paper declarations (PPQ Form 505) are also still accepted by mail (typically only used for small volume importers).
In order to properly complete a declaration, the following information will be needed:
- Scientific plant names (including genus and species)
- Country of harvest
- Quantity of plant material in the shipment in metric units of measure
- Importer name/address
- HTSUS Code
- Bill of Lading
- Container Number
- Manufacturer Identification Code (MID)
- Description of Shipment
- Name/contact information of the importer of record or their agent who is certifying the accuracy of the information in the declaration
When the species of plant used to produce a product varies and exact species is unknown, the declaration should contain the name of each species of plant that may have been used to produce the good. When the species of plant are commonly taken from more than one country and the exact country is unknown, the declaration must show the name of each country from which the plant may have been taken.
If you are having trouble compiling the required data for filing for certain plant products, APHIS provides a list of special use designations (SUDs), that can provide some assistance in the following cases:
- Plant products that may be categorized by genus or species into common trade groups
- Plant products containing composite, recycled, reused, or reclaimed materials
- Plant products that were manufactured prior to the passage of the Lacey Act Amendments
Any exclusions?
The following items do not require a Lacey Act Import Declaration:
- Products free of plant material
- Common cultivars, except trees
- Common food crops
- A scientific specimen of plant genetic material used only for laboratory or field research
- Any plant that is to remain planted or will be replanted
- Packaging material such as wood crating, wood pallets, cardboard boxes, and packing paper used as cushioning or support unless the packaging material itself is the item being imported
- The plant material in a product represents no more than 5% of the total weight of the individual product unit, provided the total weight of the plant material in an entry of products in the same 10-digit tariff provision does not exceed 2.9 kilograms
- Informal Entry shipments
- Shipments that will not remain in the United States (in-bond movements and carnets)
- Products hand-carried in personal baggage or arriving via international mail
What is Phase VII?
In this phase, Lacey Act Import Declarations will be required for all remaining plant product Harmonized Tariff Schedule (HTS) codes that are not 100% composite materials. This will impact a wide array of imported products, such as furniture, essential oils, and cork – that in the past did not require a declaration, but now will need them.
Composite materials are plant products and plant-based components of products where the original plant material is mechanically or chemically broken down and subsequently re-composed or used as an extract in a manufacturing process. Examples of composite materials could include paper, paperboard, particleboard, and medium- and high-density fiberboard (MDF and HDF).
How to prepare
The list of additional HTSUS numbers has been provided in the Implementation of Revised Lacey Act Provisions Federal Register Notice. It will be important that you have a solid process in place for gathering necessary data and filing the declaration before the December 1, 2024, deadline.
Conduct outreach with your suppliers to the affected products to gather the necessary data points and update your product records, where appropriate (e.g., genus/species/country of harvest). Although the Lacey Act does not require any additional documentation outside of the Import Declaration, companies that are responsible for transporting, purchasing and processing regulated plant products are expected to know their supply chain. Exercising due diligence means knowing that your plants and plant products were not taken, transported, possessed or sold in violation of the Act. Supply chain visibility and mapping, along with supplier due diligence is a best practice.
Ensure that the IT system you are using, whether for self-filing or via a third party (e.g., Broker) is properly configured to capture the required data elements, validate for completeness/accuracy, and electronically file the required Lacey Act Import Declaration in ACE.
The ONESOURCE Global Classification solution streamlines and automates your product classification workflow, so you can reduce the time and resources spent on classification, increase accuracy, and improve collaboration across your organization, including storing of PGA data points for regulatory requirements such as the Lacey Act.
Additionally, the Import Management solution provides customs clearance control, allowing you to easily track your import clearance documents, and directly file with government agencies lowering your risk of non-compliance.
Should you need a tool to assist you with supplier outreach to gather the necessary date required for Lacey Act declarations, the ONESOURCE Supply Chain Compliance provides a solution.
Enforcement and penalties for non-compliance
Any person/company that violates the Lacey Act is potentially subject to civil or criminal penalties.
Civil Penalties | Criminal Penalties |
|---|---|
| If the offense involves:
If the offense does not involve these factors, the criminal penalties for an individual are not more than 1 year in prison and a fine of $100,000 or twice the gross gain or loss. For a corporation the criminal penalties in that circumstance are not more than 2 years of probation and a fine of $200,000 or twice the gross gain or loss. Restitution and forfeitures may also be imposed. |
Further resources for information can be found here:
For more information on how ONESOURCE Global Trade solutions can assist you on meeting Lacey Act regulatory requirements, please contact your Account Manager or Client Services Manager.