[Code of Federal Regulations]
[Title 19, Volume 2]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 19CFR151.16]

[Page 188-190]
 
                        TITLE 19--CUSTOMS DUTIES
 
  CHAPTER I--UNITED STATES CUSTOMS SERVICE, DEPARTMENT OF THE TREASURY
 
PART 151--EXAMINATION, SAMPLING, AND TESTING OF MERCHANDISE--Table of Contents
 
                           Subpart A--General
 
Sec. 151.16  Detention of merchandise.

    (a) Exemptions from applicability. The provisions of this section 
are not applicable to detentions effected by Customs on behalf of other 
agencies of the U.S. Government in whom the determination of 
admissibility is vested and to detentions arising from possibly 
piratical copies (see part 133, subpart E, of this chapter) or import of 
goods bearing marks which are confusingly similar to recorded trademarks 
or restricted gray market merchandise (see part 133, subpart C, of this 
chapter.)
    (b) Decision to detain or release. Within the 5-day period 
(excluding weekends and holidays) following the date on which 
merchandise is presented for

[[Page 189]]

Customs examination, Customs shall decide whether to release or detain 
merchandise. Merchandise which is not released within such 5-day period 
shall be considered to be detained merchandise. For purposes of this 
section, merchandise shall be considered to be presented for Customs 
examination when it is in a condition to be viewed and examined by a 
Customs officer. Mere presentation to the examining officer of a cargo 
van, container or instrument of international traffic in which the 
merchandise to be examined is contained will not be considered to be 
presentation of merchandise for Customs examination for purposes of this 
section. Except when merchandise is examined at the public stores, the 
importer shall pay all costs relating to the preparation and 
transportation of merchandise for examination.
    (c) Notice of detention. If a decision to detain merchandise is 
made, or the merchandise is not released within the 5-day period, 
Customs shall issue a notice to the importer or other party having an 
interest in such merchandise no later than 5 days (excluding weekends 
and holidays) after such decision or failure to release (see paragraph 
(b) of this section). Issuance of a notice of detention is not to be 
construed as a final determination as to admissibility of the 
merchandise. The notice shall be prepared by the Customs officer 
detaining the merchandise and shall advise the importer or other 
interested party of the:
    (1) Initiation of the detention, including the date the merchandise 
was presented for examination;
    (2) Specific reason for the detention;
    (3) Anticipated length of the detention;
    (4) Nature of the tests or inquiries to be conducted; and
    (5) Nature of any information which, if supplied to the Customs 
Service, may accelerate the disposition of the detention.
    (d) Providing testing results. Upon written request by the importer 
or other party having an interest in detained merchandise, Customs shall 
provide copies of the results of any testing conducted on the 
merchandise together with a description of the testing procedures and 
methodologies used (unless such procedures or methodologies are 
proprietary to the holder of a copyright or patent or were developed by 
Customs 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.
    (e) Final determinations. A final determination with respect to 
admissibility of detained merchandise will be made within 30 days from 
the date the merchandise is presented for Customs examination. Such a 
determination may be the subject of a protest.
    (f) Effect of failure to make a determination. The failure by 
Customs 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 by Customs to exclude 
the merchandise for purposes of section 514(a)(4) of the Tariff Act of 
1930, as amended (19 U.S.C. 1514(a)(4)). Such a deemed exclusion may be 
the subject of a protest.
    (g) Failure to decide protest. If a protest which is filed as a 
result of a final determination or a deemed exclusion of detained 
merchandise is not allowed or denied in whole or in part before the 30th 
day after the day on which the protest was filed, it shall be treated as 
having been denied on such 30th day for purposes of 28 U.S.C. 1581.
    (h) Decision before commencement of court action. Customs may at any 
time after a deemed denial of a protest as provided in paragraph (g) of 
this section, but before commencement of a court action as provided in 
paragraph (i) of this section, grant a protest and permit release of 
detained merchandise, or deny a protest in accordance with Sec. 174.30 
of this chapter.
    (i) Commencement of court action; burden of proof and decisions of 
the court. Once a court action respecting a detention is commenced, 
unless Customs 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.

[[Page 190]]

    (j) Seizure and forfeiture; denial of entry or exportation. If 
otherwise provided by law, detained merchandise may be seized and 
forfeited. In lieu of seizure and forfeiture, where authorized by law, 
Customs may deny entry and permit the merchandise to be exported, with 
the importer responsible for paying all expenses of exportation.

[T.D. 99-65, 64 FR 43611, Aug. 11, 1999]