Customs Detentions
While a wide variety of federal agencies regulate the import and export of goods into the United States, such as the Food and Drug Administration (FDA) and the Federal Communications Commission (FCC), the goods crossing our borders are monitored and actually examined by the U.S. Customs and Border Patrol as it enforces federal trade laws, rules, and regulations as part of the Department of Homeland Security.
19 U.S.C §1499-- Examination of Merchandise
Importers are well aware that U.S. Customs has been given broad authority to examine all merchandise entering the United States. Pursuant to 19 U.S.C §1499, Customs has five (5) business days from the date on which the merchandise is presented for examination to decide whether or not to detain the merchandise or to allow its release.
Customs inspectors, at the port of entry, examine import/export documents, invoices, airway bills, as well as the commodity itself. This single inspector makes the initial and far-reaching determination on whether or not to detain the goods.
If he decides to detain merchandise, the inspector first notifies the appropriate regulatory agency, such as the Drug Enforcement Administration (DEA), the Bureau of Alcohol Tobacco and Firearms (ATF), or the Department of Commerce. He must also provide the importer with a formal Notice of Detention within five (5) days, and legally, this notice must be specific.
Notices of Detention Must Contain Specific Information
Every Notice of Detention must provide the following information under the law:
- That the goods have been placed under detention;
- The precise reason for their detention;
- The estimated length of time that they will be detained;
- A description of any inquiries being conducted or tests to be made (legally, test results also must be promptly provided to the importer) regarding the goods; and
- Any additional information that may assist in the prompt disposition of the detention.
Pursuant to 19 U.S.C §1514(a)(4), Customs has thirty (30) days to make a final determination regarding the detained merchandise, unless a longer time period has been specifically authorized for the particular situation.
If no final determination is reached at the end of this 30-day period, the merchandise is automatically considered excluded for purposes of protest. In other words, the longest delay an importer will face in challenging a detention is 30 days under federal law.
Fight a Detention by Filing Suit
Should the Customs’ action be unfavorable, the importer can fight the initial decision to detain the merchandise. A company may well choose to fight the decision of that single, and powerful, customs inspector.
The protest is a formal lawsuit, filed of public record. The relief sought includes not only the cancellation of the detention but a physical release of the merchandise to the importer. During the proceedings, the burden of proof will be placed upon U.S. Customs to establish -- by a preponderance of evidence, or a “more likely than not” standard -- that its determination is based on good cause. If Customs cannot meet its burden, the importer wins.
What companies or goods are more likely to face detention? There are no set guidelines. Custom examinations are random; however, importers with years in the business are less likely to face detention problems than those new to the industry.
Fuerst Ittleman Helps Clients Facing Detention Issues and Those Proactively Avoiding Them
Fuerst Ittleman represents a wide variety of clientele who have dealt with Customs detention issues, as well as those who proactively plan against this possibility. Fuerst Ittleman assists clients in avoiding examination problems by determining the state of the shipment, forecasts any possible detention process problems that may exist, and counsels clients on how best to avoid an unfavorable inspection. To the extent necessary, Fuerst Ittleman also fights against unfavorable detention determinations including filing of formal lawsuits in protest.
Fuerst Ittleman’s customs professionals are well versed in the latest laws and regulations as they apply to U.S. Customs’ detention policies and practices.
For example, on November 13, 2007, the U.S. Customs and Border Protection issued transmittal 07--021, changing the current detention policy for certain apparel goods imported by companies that participate in an import self-assessment (ISA) program. The policy now allows conditional release of the goods with their documents being verified post-release, instead of the prior practice of the goods being detained upon importation to await production inspection of the documents themselves.
Knowing the correct procedure (was the notice legally proper?) as well as the current applicable detention policies (was the good properly detained?) can make all the difference in proactively preventing a detention problem as well as fighting a detention determination.
For Your Information:
Shown below, the actual language of 19 U.S.C §1499, entitled “examination of merchandise”:
(a) Entry examination
(1) In general
Imported merchandise that is required by law or regulation to be inspected, examined, or appraised shall not be delivered from customs custody (except under such bond or other security as may be prescribed by the Secretary to assure compliance with all applicable laws, regulations, and instructions which the Secretary or the Customs Service is authorized to enforce) until the merchandise has been inspected, appraised, or examined and is reported by the Customs Service to have been truly and correctly invoiced and found to comply with the requirements of the laws of the United States.
(2) Examination
The Customs Service -
(A) shall designate the packages or quantities of merchandise covered by any invoice or entry which are to be opened and examined for the purpose of appraisement or otherwise;
(B) shall order such packages or quantities to be sent to such place as is designated by the Secretary by regulation for such purpose;
(C) may require such additional packages or quantities as the Secretary considers necessary for such purpose; and
(D) shall inspect a sufficient number of shipments, and shall examine a sufficient number of entries, to ensure compliance with the laws enforced by the Customs Service.
(3) Unspecified articles
If any package contains any article not specified in the invoice or entry and, in the opinion of the Customs Service, the article was omitted from the invoice or entry -
(A) with fraudulent intent on the part of the seller, shipper, owner, agent, importer of record, or entry filer, the contents of the entire package in which such article is found
shall be subject to seizure; or
(B) without fraudulent intent, the value of the article shall be added to the entry and the duties, fees, and taxes thereon paid accordingly.
(4) Deficiency
If a deficiency is found in quantity, weight, or measure in the examination of any package, the person finding the deficiency shall make a report thereof to the Customs Service. The Customs Service shall make allowance for the deficiency in the
liquidation of duties.
(5) Information required for release
If an examination is conducted, any information required for release shall be provided, either electronically or in paper form, to the Customs Service at the port of examination. The absence of such information does not limit the authority of the Customs Service to conduct an examination.
(b) Testing laboratories
(1) Accreditation of private testing laboratories
The Customs Service shall establish and implement a procedure, under regulations promulgated by the Secretary, for accrediting private laboratories within the United States which may be Used to perform tests (that would otherwise be performed by Customs Service laboratories) to establish the characteristics, quantities, or composition of imported merchandise. Such regulations -
(A) shall establish the conditions required for the laboratories to receive and maintain accreditation for purposes of this subsection;
(B) shall establish the conditions regarding the suspension and revocation of accreditation, which may include the imposition of a monetary penalty not to exceed $100,000 and
such penalty is in addition to the recovery, from a gauger or laboratory accredited under paragraph (1), of any loss of revenue that may have occurred, but the Customs Service -
(i) may seek to recover lost revenue only in cases where the gauger or laboratory intentionally falsified the analysis or gauging report in collusion with the importer; and
(ii) shall neither assess penalties nor seek to recover lost revenue because of a good faith difference of professional opinion; and
(C) may provide for the imposition of a reasonable charge for accreditation and periodic reaccreditation.
The collection of any charge for accreditation and reaccreditation under this section is not prohibited by section 58c(e)(6) of this title.
(2) Appeal of adverse accreditation decisions
A laboratory applying for accreditation, or that is accredited, under this section may contest any decision or order of the Customs Service denying, suspending, or revoking accreditation, or imposing a monetary penalty, by commencing an action in accordance with chapter 169 of title 28 in the Court of International Trade within 60 days after issuance of the decision or order.
(3) Testing by accredited laboratories
When requested by an importer of record of merchandise, the Customs Service shall authorize the release to the importer of a representative sample of the merchandise for testing, at the expense of the importer, by a laboratory accredited under paragraph (1). The testing results from a laboratory accredited under paragraph (1) that are submitted by an importer of record with respect to merchandise in an entry shall, in the absence of
testing results obtained from a Customs Service laboratory, be accepted by the Customs Service if the importer of record certifies that the sample tested was taken from the merchandise in the entry. Nothing in this subsection shall be construed to limit in any way or preclude the authority of the Customs Service to test or analyze any sample or merchandise independently.
(4) Availability of testing procedure, methodologies, and information
Testing procedures and methodologies Used by the Customs Service, and information resulting from any testing conducted by the Customs Service, shall be made available as follows:
(A) Testing procedures and methodologies shall be made available upon request to any person unless the procedures or methodologies are -
(i) proprietary to the holder of a copyright or patent related to such procedures or methodologies, or
(ii) developed by the Customs Service for enforcement purposes.
(B) Information resulting from testing shall be made available upon request to the importer of record and any agent thereof unless the information reveals information which is -
(i) proprietary to the holder of a copyright or patent; or
(ii) developed by the Customs Service for enforcement purposes.
(5) Miscellaneous. provisions
For purposes of this subsection -
(A) any reference to a private laboratory includes a reference to a private gauger; and
(B) accreditation of private laboratories extends only to the performance of functions by such laboratories that are within the scope of those responsibilities for determinations of the elements relating to admissibility, quantity, composition, or characteristics of imported merchandise that are vested in, or delegated to, the Customs Service.
(c) Detentions
Except in the case of merchandise with respect to which the determination of admissibility is vested in an agency other than the Customs Service, the following apply:
(1) In general
Within the 5-day period (excluding weekends and holidays) following the date on which merchandise is presented for customs examination, the Customs Service shall decide whether to release or detain the merchandise. Merchandise which is not released
within such 5-day period shall be considered to be detained merchandise.
(2) Notice of detention
The Customs Service shall issue a notice to the importer or other party having an interest in detained merchandise no later than 5 days, excluding weekends and holidays, after the decision to detain the merchandise is made. The notice shall advise the importer or other interested party of -
(A) the initiation of the detention;
(B) the specific reason for the detention;
(C) the anticipated length of the detention;
(D) the nature of the tests or inquiries to be conducted; and
(E) the nature of any information which, if supplied to the Customs Service, may accelerate the disposition of the detention.
(3) Testing results
Upon request by the importer or other party having an interest in detained merchandise, the Customs Service shall provide the party with copies of the results of any testing conducted by the Customs Service on the merchandise and a description of the
testing procedures and methodologies (unless such procedures or methodologies are proprietary to the holder of a copyright or patent or were developed by the Customs Service for enforcement purposes). The results and test description shall be in
sufficient detail to permit the duplication and analysis of the testing and the results.
(4) Seizure and forfeiture
If otherwise provided by law, detained merchandise may be seized and forfeited.
(5) Effect of failure to make determination
(A) The failure by the Customs Service to make a final determination with respect to the admissibility of detained merchandise within 30 days after the merchandise has been
presented for customs examination, or such longer period if specifically authorized by law, shall be treated as a decision of the Customs Service to exclude the merchandise for purposes of section 1514(a)(4) of this title.
(B) For purposes of section 1581 of title 28, a protest against the decision to exclude the merchandise which has not been allowed or denied in whole or in part before the 30th day after the day on which the protest was filed shall be treated as having been denied on such 30th day.
(C) Notwithstanding section 2639 of title 28, once an action respecting a detention is commenced, unless the Customs Service establishes by a preponderance of the evidence that an admissibility decision has not been reached for good cause, the court shall grant the appropriate relief which may include, but is not limited to, an order to cancel the detention and release the merchandise.
