[Code of Federal Regulations]

[Title 19, Volume 2]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 19CFR151.16]



[Page 188-190]

 

                        TITLE 19--CUSTOMS DUTIES

 

   CHAPTER I--BUREAU OF CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF 

        HOMELAND SECURITY; DEPARTMENT OF THE TREASURY (CONTINUED)

 

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



[[Page 189]]



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 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.



[[Page 190]]



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.

    (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]