Update on SAFE Port Act and the C-TPAT Program Requirements and Benefits

The Security and Accountability for Every Port Act of 2006 ("SAFE Port Act"), H.R. 4954, 109th Cong. § 211 (2006), signed into law on October 13, 2006 provides statutory recognition of the Customs Trade Partnership Against Terrorism, ("C-TPAT") and other security programs previously developed by the U.S. Bureau of Customs and Border Protection (“CBP”) in its efforts to secure international cargo from terrorist activities. The Act also specifically appropriates funds for C-TPAT and authorizes the hiring of additional program personnel.

The SAFE Port Act confirms the three tiers for C-TPAT participation currently recognized by CBP, and recognizes minimum standards and benefits for each tier. While C-TPAT maintains its status as a voluntary program, the Act recognizes that CBP may deny benefits to participants who fail to maintain the minimal standards and requires CBP to establish to protect C-TPAT participants before benefits are revoked.

Participant Eligibility and Requirements:
Under the Act entities eligible to participate in the C-TPAT program include importers, customs brokers, forwarders, air, sea, land carriers, contract logistics providers, and other entities in the international supply chain and intermodal transportation system. Id. at § 212. To meet the minimum requirements, an importer must:

While the Act does not substantially change the C-TPAT security criteria, it recognizes that these criteria will continue to evolve. Notably, the Act adds structure to program’s administration.

Tier 1 Participation
The Act provides that within 180 days of the bill’s enactment the Secretary is required to update the guidelines for certifying Tier 1 participants to include background investigation and extensive documentation review. The legislation also provides that, to the extent practicable, Tier 1 certification is to be completed within 90 days of the receipt of the application.

Tier 1 participants receive benefits that may include a reduction in the score assigned in the Automated Targeting System of not greater than 20 percent of the high-risk threshold.

Tier 2 Participation
Similar to current requirements, the SAFE Port Act requires a Tier 1 participant to be validated prior to advancing to Tier 2. The validation must include on-site assessments at appropriate foreign locations utilized by the Tier 1 participant in its supply chain. To the extent practicable, validations must be completed within 1 year of the participant’s certification at the Tier 1 level. Validations guidelines must be updated within 180 days of the bill’s enactment.

Tier 2 benefits may include:

• Reduced scores in the Automatic Targeting System
• Reduced examinations of cargo
• Priority searches of cargo.

Tier 3 Participation
A Tier 3 level participant must demonstrate a heightened level of commitment to maintaining security measures and supply chain security practices that exceed that of a Tier 2 participant. CBP must develop Tier 3 criteria within two years of the bill’s enactment. The criteria may include:

• compliance with any additional guidelines particularly with respect to controls over access to cargo throughout the supply chain;
• submission of additional information regarding cargo prior to loading;
• utilization of container security devices, technologies, policies, or practices; and
• compliance with any other cargo requirements established by the Secretary.

Tier 3 benefits may include:

• Expedited release of cargo during all threat conditions
• Further reduction in cargo examinations
• Priority for cargo examinations
• Further reduced scores in the Automatic Targeting System
• Inclusion in joint incident management exercises.

Consequences for Non-Compliance
The bill also sets forth consequences for failure to comply with the C-TPAT program, which may obviate the earlier criticisms of the program that it lacked enforcement authority. The Commissioner may deny benefits to C-TPAT participants who fail to meet the program’s requirements. However, the Commissioner must develop procedures that afford protections to C-TPAT participants before benefits are revoked. To the extent that members disagree with the Commissioner’s decision, the bill provides an opportunity and process for appeal with the Secretary.

For additional information contact

Robert Shapiro
202-585-6926
rshapiro@thompsoncoburn.com