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Governance


WHAT GLOBAL TRADE PROFESSIONALS NEED TO KNOW ABOUT PHASE VII OF THE LACEY ACT

Karen Lobdell  Senior Manager / Product Management / Thomson Reuters

11 Oct 2023 · 5 minute read

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Karen Lobdell  Senior Manager / Product Management / Thomson Reuters

11 Oct 2023 · 5 minute read

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A new phase of the Lacey Act is on the horizon, and global trade professionals
will need to understand what new developments this entails

The Lacey Act was first enacted in the United States in 1900 and was originally
designed to address the issue of bird poaching. Then, the 2008 Farm Bill
included sizable amendments to the Act and extended the protections to a much
larger group of plants and plant products, also making it illegal to import
certain products without a Lacey Act Import Declaration.

These amendments focused on illegal logging and harvesting of wild plants,
practices often linked to terrorist funding, political instability,
deforestation, and unlawful trade, which are all important environmental
considerations for a corporate environmental, social & governance (ESG)
strategy. Indeed, importation of plants and plant products must be done in a
manner that ensures they were harvested legally.


NEW REQUIREMENTS AS PART OF PHASE VII

In Phase VII of the Lacey Act, Import Declarations will be required for all
remaining plant product Harmonized Tariff Schedule (HTS) codes that are not 100%
composite materials, which are plant products and plant-based components of
products in which 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 these composite materials could include
paper, paperboard, particleboard, and medium- and high-density fiberboard.

Phase VII will impact a wide array of imported products, such as furniture,
essential oils, and cork — products that in the past did not require a
declaration, but now will need them.

Animal and Plant Health Inspection Service (APHIS) is currently reviewing HTS
codes to determine the complete list of materials and products that will be
included in Phase VII. Later in 2023, APHIS will publish a list of the affected
HTS codes in the Federal Register and will require import declarations for those
products six months later.

Currently, the Lacey Act requires a declaration upon importation, meaning that
it is required at the time the shipment lands within U.S. jurisdiction. The vast
majority of importers will file their declarations in the U.S. Customs & Border
Protection Automated Commercial Environment (ACE) system using the Lacey Act
Message Set at or before the shipment arrival. The Lacey Act declaration must be
filed or signed by the Importer of Record, or their designated agent (such as a
Customs Broker), with the appropriate Power of Attorney. A current list of
products that require a Lacey Act Import Declaration can be found at the Lacey
Act Declaration Implementation Schedule.

Declarations can also be filed electronically via the Lacey Act Web Governance
System (LAWGS). Until the U.S. Customs and Border Protection (CBP) implements a
module in ACE for filing declarations for imports into Foreign Trade Zones
(FTZs), LAWGS provides that capability and allow large uploads of Lacey Act
declaration data using XML. The use of LAWGS for FTZs does require a serial
number, however.

There is also the APHIS web-based system for importers who may typically file a
paper declaration. Although electronic submission is the preferred method, paper
declarations (PPQ Form 505) are also still accepted by mail and are typically
only used for small-volume importers.


PREPARATION IS KEY

Although the list of additional HTS numbers has not yet been published, key
steps ensuring that importers and other users have a solid process in place for
gathering necessary data and filing the declaration is something that can be
done now. Some of these steps include:

 * * * Monitoring and auditing product database — Importers should continue to
       check the Federal Register for the publication of the additional HTS
       numbers that will be included in Phase VII. Once those are published,
       they should conduct a review of their product database to identify any
       products that will now require the declaration, especially if those
       products did not require that in the past.
     * Engaging suppliers — They also should conduct outreach with their
       suppliers to the affected products to gather the necessary data points
       and update product records, where appropriate (such as to genus, species,
       country of harvest, and more). 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.
     * Ensuring appropriate configuration of IT systems — Importers should
       ensure that the IT system they are using, whether for self-filing or via
       a third party (such as a Customs Broker) is properly configured to
       capture the required data elements, validate for completeness and
       accuracy, and electronically file the required Lacey Act Import
       Declaration in ACE.
     * Employing software — Global classification solutions streamline and
       automate your product classification workflow, so importers can reduce
       the time and resources spent on classification, while increasing accuracy
       and improving collaboration across their organization. Additionally,
       Global Trade Management (GTM) Import Management solutions provide customs
       clearance control, allowing users to easily validate and track import
       clearance documents and directly file with government agencies, thus
       lowering their risk of non-compliance. To assist in gathering the
       necessary data points from suppliers for filing purposes, third-party
       risk management solutions also are available.

Any individual importer or importing company that violates the Lacey Act is
potentially subject to civil or criminal penalties. Ensuring compliance with
these new requirements is key for importers to avoid any penalties.

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