Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



C-TPAT Suspension and Appeal Process

One of the consistent criticisms of C-TPAT is there are no regulations that clarify what rules and procedures apply to the program. This has been especially troubling when it comes to those companies that are suspended or removed from the program, generally without advance notice. In seeking to mute that criticism, Customs has published procedures that state suspension or removal may result for reasons such as "narcotics seizures or other security related incidents such as human smuggling; failed validations or lack of compliance with C-TPAT requirements regarding supply chain or other security measures; failure to provide required information or filing false or misleading information; or actions or inaction that shows a lack of commitment to the program." The full notice can be found at:

 

The real corker is the last provision – "actions or inaction that show a lack of commitment to the program." What does that even mean? There have been recent cases involving suspension from the program for too many trademark infringement seizures, but what does that have to do with cargo security? What about the role of Regulatory Audit in asking security questions of non-C-TPAT members when conducting an audit? The stated "justification" for doing so is that, since the company is not a C-TPAT member, Customs does not know enough about its security measures. Given that non-C-TPAT members are supposedly subject to a higher inspection rate, just how is it that, in inspecting those shipments, Customs is not learning about supply chain security? While we might not know what security measures are in place at origin, isn’t inspecting the shipment supposed to tell Customs whether or not what is invoiced is shipped and that the shipment is in compliance with the law? Given the circumstances, there are many companies that look at this latest action as a sort of menacing threat because they have decided they are simply not going to join C-TPAT. The cost is too great and the return is too little, but that does not change the fact their goods are compliant. Since C-TPAT is stated to be a voluntary program, what sense can be made of these actions by Customs?

C-TPAT Appeal Process.

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