CBP and CPSC Describe Differences in Their Detention Notices

(In June 2010, CPSC began issuing its own detention notices for CPSC-regulated products, under similar but separate procedures. See ITT’s Online Archives or 04/12/11 news, 11041224, for the most recent BP summary of CPSC detention notices, in which CPSC said it was trying to mirror CBP’s detention timeframes but noted several differences.)

CBP Detentions

CBP Detention Regs, Including 30-Day Limit, do not Apply to OGAs

CBP explained that under its detention procedures in 19 CFR 151.16 (available here), it must make a final determination with respect to the admissibility of detained merchandise within 30 days after it is presented for examination or the merchandise will be automatically deemed excluded. However, this regulation, including the 30-day limit, does not apply to detentions issued by CBP on behalf of other government agencies (OGAs).

Nonetheless, CBP stated it makes an effort to notify the importer if a detention on behalf of an OGA will take longer than 30 days.

(See 19 CFR 151.16 for other exceptions, e.g. for trademarks, gray market goods, etc.)

CBP Provides Informal Notification of Seizure as Formal Notice May Take Time

If CBP decides to seize the merchandise, a CBP Officer will notify the importer informally and transfer the matter to the Fines, Penalties, and Forfeitures (FP&F) office which will provide the formal notification. However, formal notification can sometimes take time as FP&F has a large caseload. CBP explained that after the case gets transferred to FP&F, the CBP Officer will not be able to provide much information about the seizure.

Cannot Use Form 3499 to Manipulate Entry for CBP Detentions

According to the official, some people have asked CBP about using Form 3499 (Application and Approval to Manipulate, Examine, Sample or Transfer Goods) to manipulate an entry when CBP has detained or conditionally released a shipment. However, the instructions on the form (and CBP regulations) do not allow for manipulation for these purposes. The official stated that if CBP allowed that in the past, it was done in error, and it will not allow this in the future.

CPSC Detentions

The CPSC official described the detention notices CPSC has been issuing since June 2010 under its own authority. Though most of the information repeated previous presentations (e.g., that CPSC’s detention notices are generally in lieu of CBP-issued notices; they contain a CPSC contact and information on the potential violation; conditional release of the merchandise may be allowed while CPSC resolves the detention; that penalties apply for failure to redeliver, etc.), the official added details on the following:

Can Issue 30 Day Extension of Detention Period

CPSC’s policy is to try to resolve the detention within 30 days, but CPSC can issue an extension of another 30 days. This can occur especially with fireworks or chemicals which require longer lab analysis.

CPSC Can Only Be as Specific as Importer in Describing Detained Product

CPSC may only be interested in one particular item in a shipment, and will identify that item in its detention notice as specifically as possible. If it is only detaining a specific product within a shipment, the rest can be released into commerce. Therefore, the official urged importers to look closely at the item described for a style number or other identifier. However, CPSC can only be as precise as the information it is given, so importers should be as specific as possible in describing products.

CBP Will Act as Custodian of Merchandise if it Remains at CES

CBP will act as the custodian of any merchandise detained under CPSC authority as long as the merchandise remains detained at the Centralized Examination Station (CES). However, this would not be the case if CPSC conditionally releases the merchandise to the importer.

Merchandise Conditionally Released Should Not Be Manipulated or Opened

CPSC states that its determination to conditionally release merchandise is made on case by case basis, but it most often allows conditional release. However, CPSC urged importers not to manipulate or open the merchandise. Instead, they should leave it intact until the importer hears from CPSC.

Importer Will See CPSC Request for CBP Action on Redelivery, Seizure, Etc.

If merchandise is determined to violate CPSC statute subsequent to conditional release, CPSC will use Form 330 to request that CBP order redelivery of the merchandise. The importer and broker will see a copy of this. CPSC also uses this form to ask CBP to seize merchandise; to notify CBP if the merchandise should be refused admission; or to notify CBP of an agreement with the importer to export or destroy the merchandise.

Requests to Export Hazardous Products Will Most Likely Be Denied

Products that are refused admission for CPSC violations will be destroyed unless the trade makes a very compelling argument as to why they should be exported. If it is something that may be hazardous to the general public, it is highly unlikely CPSC will honor the request.

CPSC Compliance Investigators Can Visit Importers & Brokers, Request Docs.

According to the presenter, CPSC Compliance Investigators tasked with investigating imports also have the authority to visit importers, distributors and brokers and to request and get documentation.

(See ITT’s Online Archives or 10/27/10 news, 10102708, for BP summary of CBP official’s statement that other agencies are expected to follow CPSC’s lead and issue their own detention notices.

See ITT’s Online Archives or 07/13/10 news, 11071321, for BP summary of CPSC FAQ on its detention notices for imported products.)