Customs blocked from implementing mandatory contactless clearance policy next week

Dubbing the Jamaica Customs Agency's (JCA) new Contactless Clearance policy illegal and unconstitutional, the Customs Brokers & Freight Forwarders Association of Jamaica believes it will be victorious in getting the Supreme Court to quash the agency’s decision to institute the policy, which is reportedly the first of its kind in the world.

The new policy, which will see inspection of non-commercial cargo being done by the warehouse operators, in the absence of importers or agents, was expected to start officially in the island on April 2, following a pilot, which took place from October 2022 to January 2023.

However, the association successfully got the court to delay the start of the policy.

Justice Lorna Shelly Williams yesterday granted the association an injunction, restraining the agency from implementing the Customs Contactless Clearance Process (CCCP) pending the hearing of an application for permission to apply for Judicial Review, set for April 25.

The implementation of the policy shift has been a bone of contention for the association since July 2022, when it learnt of Custom’s plans.

The association, which maintained that it had been in the dark about the policy and was never consulted, had objected, forcing a postponement of the policy, resulting in a pilot.

CBFFAJ President Clive Coke said then that his association was not aware of the rationale for the policy shift and warned that Customs’ deployment of warehouse operators could wipe out hundreds of jobs for freight forwarders and customs brokers.

Speaking with The Gleaner yesterday, Coke again highlighted why the association was opposing the move.

“This is not a best practice, it doesn’t protect the interest of importers and of traders because there will be nobody there, based on what they have proposed, to look out for the interest of the traders and it is not supported by the Customs Act,” he declared.

As a member of the International Federation of Customs Brokers Association, Coke said he has had dialogue with his colleagues and the process is unprecedented.

“There is no evidence that anything similar to this, where you can remove the importer and the agent completely out of the process, is happening elsewhere in the world."

Coke said his association would have supported the policy once an agent for the importer would have been allowed to witness the inspection.

According to Coke, the policy will confuse rather than improve efficiency in the process.

“There is really nothing contactless about the process. Customs still intends to check 100 per cent. The only thing which we notice that would have changed is that they want to remove a licensed customs broker who is a trained professional with the warehouse handlers,” he added, noting that globally only five per cent is checked.

Asked about the response he had received from stakeholders about the pilot, Coke said, “I have never heard positive feedback from any of the persons who took part in the pilot. It is all negative.”

In a statement yesterday, the JCA said the CCCP will remain optional, notwithstanding the previously announced April 2 mandatory implementation date.

"The Contactless Clearance Process remains an option when clearing personal (non-commercial) shipments at the seaports, with a CIF value of less than US$5,000.00," the JCA said. "The Agency will continue to review the programme and engage with stakeholders, to ensure that it is implemented in a manner that continues to safeguard the rights of importers, remains consistent with international best practices, and upholds the Agency’s mandate with respect to trade facilitation and border protection.

"The Agency is aware that there is misinformation in the public domain, regarding the Contactless Clearance Process. Therefore, in the coming weeks, we will continue to share information regarding how the process works, how to access it and its benefits.

"For further details our customers may visit https://www.jacustoms.gov.jm/contactless-clearance. Customers may also email: contactlessclearance@jca.gov.jm or call 876-922-5140-8. The JCA's Contactless Clearance Process is convenient, efficient and secure."

In the meantime, Coke said he was happy about yesterday’s ruling and is feeling optimistic about the judicial review.

“We have been patiently advocating with Customs since 2021, over two years now, to have a serious dialogue with us on how we can move the industry forward and, looking at the material which we have put forward, the court will be able to see that what they are proposing, it just won’t work, it’s going to create a lot of chaos and we have no doubt about it.”

The association is seeking, among its relief, an order to prevent the JCA from implementing the policy on the basis that it is inconsistent with the Customs Act, the Customs Regulations, the Revised Kyoto Convention and the Charter of Fundamental Rights and Freedoms or, in its alternative, an order quashing the decision to effect the policy.

Among the association's grounds is that approximately 3,000 jobs will be lost if the policy is implemented and that customs brokers and freight forwarders will suffer irreparable harm with some losing their businesses.

The association is further contending that a system of appointments will assist with improved security, congestion and wait time, rather than excluding the importers or licensed custom brokers.

tanesha.mundle@gleanerjm.com