The original Lacey Act dates back to 1900, and its purpose is to help prevent the trade of wildlife, plants, and plant products (including timber) that has been illegally taken, held, transported, or sold. The Lacey Act and its various amendments make it unlawful to import certain products without an import declaration.
What should importers know?
When you import plant products or items that contain plant products, you must provide an import declaration confirming that those plant products were legally harvested.
The import declaration must contain:
the scientific name of the plant
the value of the importation
quantity of the plant
the name of the country where the plant came from.
Since 2009, APHIS has been gradually phasing in the declaration requirements for more and more products, and is currently preparing for Phase VII. You can read about the latest Declaration Implementation here. There you can also find out which products currently require a declaration.
The following products do not require a Lacey Act declaration:
Common cultivars, except trees
Common food crops
Scientific specimens 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, unless the packaging material itself is the item being imported
A declaration is also not required if 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.
Note: Plants and plant products protected under U.S. laws or international agreements such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Endangered Species Act, or any state law that provides for the conservation of indigenous species under threat of extinction must always be accompanied by a declaration if listed on the implementation schedule.
How to submit a Lacey Act declaration
There are two ways to electronically file a declaration:
Automated Commercial Environment (ACE) – The primary method for filing Lacey Act declarations is through ACE. This automated system allows you to electronically file the data required by U.S. Customs and Border Protection (CBP) and its partner Government agencies, including the APHIS Lacey Act Program.
Lacey Act Web Governance System (LAWGS) – You can also file the Lacey Act declaration through LAWGS, APHIS’ web-based system for importers who would otherwise file a paper declaration. Importers who are using ACE to file customs information and LAWGS to submit a Lacey Act declaration must indicate in ACE that they are filing their Lacey Act declaration through another method.
Mail in a paper declaration – If necessary, you can file a paper declaration using PPQ Form 505.
Canada has filed a notice of intent to challenge the United States International Trade Commission’s (USITC’s) decision to maintain duties on Canadian softwood lumber products, under Chapter 10 of the United States–Mexico–Canada Agreement (USMCA).
In a statement, the Canadian Minister of Export Promotion, International Trade and Economic Development Mary Ng said that the duties impacted the Canadian softwood industry. “And with the significant current challenges in housing supply and affordability, these duties also harm U.S. consumers and businesses that need Canadian lumber.”
She underlined the need to find an acceptable resolution of this dispute that works for both countries and their businesses.
“Canada remains ready and willing to discuss a resolution that provides the stability and predictability the sector needs to ensure its continued growth and success.”
As part of the challenge, a binational panel will be established and tasked with determining whether the decision to maintain duties on Canadian softwood lumber products was reached in a manner consistent with U.S. law.
Since the most recent U.S. administrative review, U.S. softwood lumber duties have subjected most Canadian softwood lumber exports to the new combined duty rate of 7.99%.
The U.S. Food and Drug Administration (FDA) has announced that it will delay enforcing the new requirements for registering and listing cosmetics products for six months to make the transition easier for the industry.
MoCRA is the most significant expansion of the FDA’s cosmetics regulation efforts since the Federal Food, Drug, and Cosmetic Act of 1938. It gives the FDA new authority to access and copy certain records related to cosmetic products if certain conditions are met, and the authority to issue mandatory recalls on products if they violate health and safety standards.
MoCRA also establishes new requirements for the industry:
Facility Registration: Cosmetic product manufacturers and processors must register their facilities with FDA, update content within 60 days of any changes, and renew their registration every two years.
Product Listing: A “responsible person” (the manufacturer, packer, or distributor) must list each marketed cosmetic product with FDA, including product ingredients, and provide any updates annually.
Adverse Event Reporting: A responsible person is required to report serious adverse events (such as hospitalization) associated with the use of cosmetic products in the United States to the FDA within 15 business days
Safety Substantiation: Companies and individuals who manufacture or market cosmetics have a responsibility to ensure the safety of their products.
The requirements will apply to the following cosmetics categories:
Baby products, including shampoo, lotion, oil, creams, and baby wipes
Bath products, including bubble bath, bath oils, tablets, and salts
Eye makeup, including eyebrow pencils, eye shadow, and mascara
Childrens’ eye makeup
Fragrances, including perfume and cologne
Hair preparations, including conditioner, hair spray, and shampoo
Hair coloring preparations, including hair dye, tints, and coloring rinses
Non-eye makeup, including blush and rouge, face powder, foundation, and lipstick
Children’s makeup (non-eye), including face paint and lip gloss
Manicuring preparations, including nail polish, nail extenders, and cuticle softeners
Oral products, including mouthwash and toothpaste
Personal cleanliness products, including deodorant, soap, and body wash
Shaving preparations, including shaving cream and aftershave
Skin care preparations, including creams, lotions, powders, and sprays
Suntan lotions, creams, gels, etc.
Tattoo preparations, including permanent and temporary tattoo ink
FDA hosted a webinar that provides an overview of the Modernization of Cosmetics Regulation Act of 2022 and outlines the requirements mandated by the act and the current steps FDA is taking to implement the requirements, including an update on the Voluntary Cosmetic Reporting Program, and information about a public listening session on good manufacturing practices (GMPs).
The National Oceanic and Atmosphere Administration (NOAA) has updated the list of nations identified as being involved with illegal, unreported, and unregulated (IUU) fishing activities, bycatch, and shark catch.
A negative certification from the NOAA may result in fishing vessels of that nation being denied U.S. port access, and potential import restrictions on fish or fish products.
In its 2023 Report, the NOAA identified seven nations for IUU fishing: Angola, China, Gambia, Grenada, Mexico, Taiwan, and Vanuatu.
Additionally, China and Taiwan were identified for issues concerning the production of seafood-related goods through forced labor.
China and Vanuatu were called out for shark catch without regulations comparable to those of the United States.
The report also includes certification determinations for 31 nations and entities identified for IUU fishing and/or bycatch of protected marine life in the 2021 report.
IUU Fishing
Positive: Costa Rica, Guyana, Senegal, and Taiwan received positive certification determinations for taking actions to remedy the IUU fishing activities identified in the 2021 report.
Negative: Mexico, China, and Russia received negative certifications for failing to take actions to remedy their reported activities.
Protected Marine Life Bycatch
China, Croatia, Egypt, European Union, Grenada, Guyana, Japan, Mauritania, Morocco, Portugal, the Republic of Korea, Saint Vincent and the Grenadines, South Africa, and Taiwan received positive certifications for taking corrective actions to address their protected marine life bycatch activities identified in the 2021 Report.
Algeria, Barbados, Côte d’Ivoire, Cyprus, France, Greece, Italy, Malta, Namibia, Senegal, Spain, Trinidad and Tobago, Tunisia, and Turkey received negative certifications for not having a regulatory program comparable to that of the United States to reduce bycatch of sea turtles in pelagic longline fisheries in the International Commission for the Conservation of Atlantic Tunas waters beyond any national jurisdiction.
Additionally, Mexico has been negatively certified for its lack of a comparable regulatory program to reduce or minimize bycatch of endangered North Pacific loggerhead sea turtles.
What does this mean for importers?
Seafood importers should be aware of the risks associated with sourcing seafood from countries that have not received a positive NOAA certification.
US importers may need to conduct additional due diligence on their seafood suppliers to ensure that they are not sourcing from nations engaged in IUU fishing, forced labor, or unregulated bycatch and shark catch, and/or diversify their seafood supply chains to reduce their reliance on nations identified in the report.
The Consumer Product Safety Commission (CPSC) has issued two final rules to codify the bans on inclined sleeps for infants and crib bumpers that Congress established in the Safe Sleep for Babies Act.
The Act prohibits importing these products into the U.S., along with their sale, manufacture, and distribution.
The rules implement the statute, which went into effect on November 12, 2022.
The final rule for infant sleepers defines “inclined sleeper for infants” as a product with an inclined sleep surface greater than ten degrees that is intended, marketed, or designed to provide sleeping accommodations for an infant up to 1 year old.
Crib bumper is defined in that final rule as any material that is intended to cover the sides of a crib to prevent injury to any crib occupant from impacts against the side of a crib or to prevent partial or complete access to any openings in the sides of a crib to prevent a crib occupant from getting any part of the body entrapped in any opening; includes a padded crib bumper, a supported and unsupported vinyl bumper guard, and vertical crib slat covers; and does not include a non-padded mesh crib liner.
For example, manufacturers and importers of infant sleep products must certify in a Children’s Product Certificate (CPC) that their infant sleep products comply with the mandatory standard and any additional requirements, after the infant sleep products have been tested for compliance at an approved third-party laboratory.
The United States Department of Agriculture (USDA) and Agricultural Marketing Service have implemented a Final Rule strengthening the enforcement of the National Organic Program, which governs the production, handling, and sale of organic agricultural products.
The Final Rule, which came into effect earlier this year and will be implemented on March 19, 2024, is designed to protect the integrity of the organic supply chain and build consumer and industry trust in the USDA organic label.
Key action items include strengthening organic control systems, improving farm to market traceability, and providing robust enforcement of the USDA organic regulations.
You may be affected by this rule if you are involved in the organic industry, including the import, trade, retail, or brokering of organic products that currently certified under the USDA organic regulations.
According to the USDA, the organic market has grown considerably since its original organic regulations took effect in 2002. The Organic Trade Association reports that total U.S. organic sales grew from $3.4 billion in 1997 to $61.9 billion in 2020. That rapid growth has created challenges as the organic supply chains become more complex. Some segments of organic supply chains remain uncertified under current regulation, which created gaps in oversight, increased the opportunity for fraud, and complicated enforcement by the USDA and its partners.
Oversight and enforcement of organic supply chains are challenging because organic products are “credence goods,” meaning their authenticity is difficult to verify or guarantee on an individual basis; instead, it requires transparent supply chains, trusted interactions between businesses, and mechanisms to verify product legitimacy. The USDA concluded that this is best accomplished via certification, which requires operations to follow traceability and verification practices, and provides regular oversight in the form of audits and annual inspection.
This new Final Rule broadens the scope of who must be certified, opening more of the organic supply chain to oversight, reducing the types of uncertified entities in the organic supply chain that operate without USDA oversight (indulging brokers, traders, and importers), and mitigating the risks of noncertified businesses handling organic product.
The Final Rule also requires the use of NOP Import Certificates for all organic products entering the United States. This change expands the use of NOP Import Certificates to all organic products imported into the United States, improving the oversight and traceability of imported organic products.
The Transportation and Infrastructure Committee has voted to approve several measures to strengthen the country’s supply chain and guard against future supply chain disruptions.
The approved legislation includes:
The Soo Locks Security and Economic Reporting Act of 2023
Directs a federal study of potential security risks of the Soo Locks in Sault Ste. Marie, Michigan – a critical supply chain link between the U.S. and Canada – and the economic ramifications in the event of their operational failure.
The Ocean Shipping Reform Implementation Act of 2023
Builds upon the Ocean Shipping Reform Act of 2022, including by allowing the Federal Maritime Commission (FMC) to review complaints about market manipulation and anti-competitive operations of maritime exchanges, and strengthening the FMC’s authority to crack down on unfair trade practices.
The Truck Parking Improvement Act
Expanding access to parking options for commercial trucks by increasing resources for the construction of new Commercial Motor Vehicle (CMV) parking, adding additional parking at current CMV parking areas, and making improvements to existing CMV parking. It also requires CMV parking spaces constructed to be accessible to all CMVs without charge.
The Licensing Individual Commercial Exam-takers Now Safely and Efficiently (LICENSE) Act of 2023
Eliminates regulatory barriers and addresses truck driver shortages by making permanent two waivers issued by the Federal Motor Carrier Safety Administration (FMCSA) during the COVID-19 pandemic to allow for more efficient Commercial Driver’s License (CDL) testing.
H.R. 3318, establishing a 10% axle weight variance for dry bulk
Allows for a 10% axle variance for dry bulk, without any increase in the overall federal gross vehicle weight (GVW) limit. The bill makes an allowance for the fact that dry bulk – nonliquid cargos such as grains, plastic pellets, and aggregates – can shift during transportation and redistribute a truck’s weight. The bill ensures trucks don’t have to unnecessarily reduce their loads.
Streamlining the environmental review process for major projects
Extends One Federal Decision (OFD) environmental review streamlining provisions – such as combining environmental documents among agencies, concurrent agency reviews, creating reasonable page limits for documents, and reasonable time limits for reviews – to port, aviation, and pipeline projects, as applicable. OFD was already approved in law for highway projects under the Infrastructure Investment and Jobs Act.
The Supply Chain Improvement Act
Ensures that priority consideration is given to projects that would improve or build resiliency into the supply chain under the INFRA and MEGA discretionary grant programs, and prioritizes infrastructure projects that improve the supply chain for certain U.S. Department of Transportation grant programs.
The Intelligent Transportation Integration Act
Directs the Secretary of Transportation to create and implement a program to bolster transportation management and the efficiency of Federal-aid highways by leveraging third-party data.
The Motor Carrier Safety Selection Standard Act
Increases efficiency and highway safety in the supply chain network by requiring the Federal Motor Carrier Safety Administration (FMCSA) to develop a new Safety Fitness Determination process to change the way a motor carrier is rated.
The Rolling Stock Protection Act
Closes a legal loophole and prohibits four public transportation agencies from continuing to use Federal Transit Administration (FTA) funds to procure rolling stock from State Owned Enterprises (SOEs), including a Communist Chinese-controlled manufacturer.
Establishing a safety data collection program for certain 6-axle vehicles
Establishes a voluntary 10-year pilot program for states to increase truck weights on federal interstates up to 91,000 pounds on six axles.
The Carrying Automobiles Responsibly and Safely (CARS) Act
Allows automobile transporters to continue carrying the same number of vehicles as they currently do. The bill addresses the increasing weight of newer vehicles, allowing a 10% weight increase for certain types of automobile transporters.
U.S. Customs and Border Protection (CBP) has announced the latest set of updates that will be coming to the ACE reporting system over the next few months.
ACE, which stands for Automated Commercial Environment, is the platform used to report imports and exports so that the government can determine admissibility.
The deployment schedule is as follows:
Ace Portal Modernization
The third and fourth phases will transition more capabilities to the modernized ACE portal, including:
References tab updates
Edit functionality for Account Data for All Account Types
User access management
Document upload/management functionality for Facilities/Foreign Trade Zones (FTZ)
Blanket Declarations
New account type: Vessel Agent
Statements
Conveyance Template Upload
Change History
Aluminum Duty
Trade Remedy 232 for Aluminum will require a new declaration for Russian Smelt or Cast, which involves collecting five new data elements via ABI and updates to CBP internal user interfaces.
Automated Surety Interface (ASI) Seized Assets and Case Tracking System (SEACATS)
This will transition ASI-SEACATS from the Automated Commercial System (ACS) to ACE.
HTS Go-Live
The remaining HTS Admin User Interface, HTS Query and Data Conversion will be migrated.
Implement Mass Liquidation Functionality for Drawback Entry Type 47
ACE functionality will be expanded to allow for the mass liquidation of drawback entries/claims (entry type 47).
UFLPA Detentions Process Related to Forced Labor
This will create an automated process for Admissibility Reviews and Exception Requests. This will include automating the completion and issuance of the CBP 6051D and Attachment 2B. A public site for the trade to upload documentation and submit for CBP review. This new enhancement will allow CBP to track, review, and determine the final disposition from this site.
ACE Currency Exchange Rates
The ACS Currency Exchange Rates program will be implemented in ACE, giving CBP and Trade stakeholders clear concise daily exchange rates (“multipliers’) to use in converting invoice values (currency) to US Dollar value for entry summary and other purposes.
Ocean House Bill of Lading (OHBOL) Release
This enhancement will implement functionality within ACE to release ocean cargo at the lowest shipment level. A new User Interface will be provided for Container Freight Station (CFS) operators where they can view information as released at the lowest shipment level. The CFS UI will not have EDI impacts.
Enhancements to ACE Truck Manifest – Phase 4: Class of Admission
This enhancement will allow ACE Truck Manifest to infer Class of Admission (COA) based on travel documents that the Primary Inspection Process (PIP) returns for all crew members and passengers present in the conveyance at crossing. When the COA cannot be inferred by the travel document returned by PIP, the enhancement will also allow the officer examining the documents at the border to manually select the COA or create a referral.
This enhancement includes the development and integration of additional non-intrusive inspection (NII) capabilities including Artificial Intelligence (AI)/Machine Learning (ML) models for ACE Truck Manifest modernization.
Immediate Delivery
The Immediate Delivery (ID) enhancement will allow filers to transmit an ID request on an entry and the data would populate in ACE Cargo Release and Entry Summary, in line with 19 CFR 141,48(c).
Entry Summary Query Updates
This enhancement will incorporate data elements from Collections and move the query from Legacy ACE to New ACE.
Collections – Release 7*
This functionality will automate the Budget Clearing Account (BCA) process, enabling improved reconciliation of open receivables and reducing the time required to clear the BCA for CBP personnel. • This enhancement will also integrate the port collections process into ACE Collections and will enable the entry lifecycle to be contained in one system.
United States – Mexico – Canada Agreement (USMCA) – Retail Sales Indicator
This work creates a new indicator that filers will use to indicate if they are submitting a substitution claim, or a direct identification claim for Drawback provisions 56 and 70.
Broker Fee Automation
New capabilities: Broker License Application with interface to ACE, Broker Permit Application with interface to ACE, and Broker Annual Permit User Fee with interface to ACE. Deployment will commence once integration of Collections (Release 7) is complete.
Following a recent meeting between President Biden and Canadian Prime Minister Justin Trudeau, the US and Canadian governments released a joint statement reaffirming their commitment to a mutually beneficial partnership to support green energy trade initiatives.
Highlights include:
Introducing enhanced plans to support clean technology manufacturing and adoption.
Launching a one-year Energy Transformation Task Force to accelerate cooperation on critical clean energy opportunities and supply chains, including securing and strengthening renewable energy and electric vehicle supply chains, critical minerals and rare earths, grid integration and resilience, and nuclear energy.
Working towards net-zero greenhouse gas emissions by harmonizing charging standards and developing cross-border alternative fuel corridors, and building a network of electrical vehicle fast chargers and community charging options on both sides of the border.
Proposing regulations before this fall that will reduce greenhouse gas emissions from their respective sectors, which builds on commitments to achieve net-zero power grids by 2035
Working with other major energy importers and exporters to develop an internationally aligned approach to measurement, monitoring, reporting, and verification for lifecycle methane and CO2 emissions across the fossil energy value chain.
Work together to promote North American trade of low-emission goods, including green steel and aluminum
Coordinating efforts to develop secure and reliable North American nuclear fuel supply chains and build broader partnerships with allies and partners, which will help to ensure access to low enriched uranium.
Strengthening the resilience of critical mineral and semiconductor supply chains and diversifying supply chains that are essential to clean energy, electric vehicles, semiconductors, aerospace, and defense, among other sectors.
Continuing to impose economic sanctions on Russia due to the ongoing war against Ukraine.
The new requirements for customs brokers with power of attorney (POA) under 19 CFR 111.36(c)(3) established by the Modernization of the Customs Broker Regulations Final Rule (87 FR 63267) are now in effect.
A Power of Attorney agreement gives another party (either an individual or a company) the authority to make decisions on your behalf. The most common situations in which the average American will encounter a PoA agreement will likely be medical or legal. A Power of Attorney is also required if you want to work with a customs broker like Clearit.
Under the new regulations, a customs broker must execute a POA directly with an importer of record or drawback claimant (client) and not through a freight forwarder or other third party to transact customs business on behalf of the client.
According to U.S. Customs and Border Protection (CBP), the term “directly” means the client must execute and sign the POA in direct communication with the broker and cannot have an agent or third party sign or negotiate the POA in their stead.
However, the client may have an agent, or third party assist in executing the POA. For example, the client may have an agent provide translation services, provide counsel in reviewing the terms of a POA, or provide courier services to relay a written POA.
