CPSC to Begin Issuing Its Own Detention Notices June 14, 2010
On June 2, 2010 U.S. Customs and Border Protection held a webinar to discuss aspects of the detention notices that the Consumer Product Safety Commission will begin to issue starting June 14, 2010.
(CBP currently issues detention notices regarding possible CPSC violations. However, in April 2010, CPSC announced it was working with CBP on issuing its own such notices. See ITT’s Online Archives or 04/20/10 and 05/14/10 news, 10040000 and 10051458, for BP summaries.)
Though Roll-Out Starts June 14, 2010, May be Slow Process
CPSC states that while it will begin issuing its own detention notices on June 14, 2010, full roll-out may take some time and importers should not expect to immediately see such notices.
May Replace or Be in Addition to CBP Detention Notices
For products under CPSC’s jurisdiction, CPSC detention notices will generally be issued in lieu of CBP detention notices.
However, there may be instances in which both agencies have separate problems with a CPSC-regulated product. In this case, detention notices would be issued by both CPSC and CBP. If CBP resolves its detention first and decides there is no CBP violation, it will not release the merchandise until CPSC has resolved its detention. However, if CBP decides to seize the product, CPSC’s detention becomes moot (though CPSC may continue to pursue the suspected violation for penalty purposes, etc.).
Notices Will Include Suspected Violation, CPSC Contact Info
CPSC’s detention notices will describe the suspected violation and the statute governing the violation. It will also list the CPSC investigating officer and their contact information.
Detention Notice to be Sent to Importer, Copies to Broker & CBP
CPSC will send the detention notice to the importer and copies of it to CBP and the customs broker. CBP officials added that in the future, there will be an ABI message sent to the broker telling them of the detained merchandise.
All Communication Should be with CPSC Official
According to the CPSC presenters, all questions regarding the detained merchandise should be directed to the listed CPSC official, not CBP. They added that dealing directly with the person knowledgeable about the case will allow for more efficient “back and forth.”
CPSC to Try to Issue Notice of Detention in 5 Days, Importers Have 5 Days to Respond
CPSC expects to issue its detention notices within five business days after a product is presented for examination. However, unlike CBP, CPSC is not required to meet this 5 day timeframe.
The importer will then have five business days to provide information to help resolve the detention. This information could include test records which show that the products are compliant, etc.
Conditional Release of Merchandise May be Possible
After taking samples of the detained merchandise, CPSC may allow for the conditional release of the remaining merchandise while the testing takes place. However, conditional release can only occur under CBP bond and the goods cannot be distributed in commerce until approval to do so is received.
The decision on whether to allow conditional release will be made on a case-by-case basis, depending on the character of the possible violation, the availability of appropriate storage, etc. For example, CPSC would be more likely to allow the conditional release of children’s products that do not have the required tracking label than those which have very high lead levels; it may allow the conditional release of fireworks if a port does not have firework-appropriate storage facilities; etc.
Merchandise that is not approved for conditional release would remain in a bonded facility until the detention is resolved.
Failure to Redeliver Merchandise to CBP Would Result in Liquidated Damages
If the merchandise is conditionally released and the importer receives a redelivery notice from CBP, failure to redeliver the merchandise would result in liquidated damages assessed at three times the entered value of the merchandise.
Goal is to Have Detentions Resolved in 30 Days, No Ability to Protest
CPSC states that its goal is to have all detentions resolved within 30 calendar days. However, unlike CBP, CPSC is not bound by this requirement which means that importers will not be able to file protests for products detained more than 30 days.
Can Request that Products be Destroyed/Exported, Can Request Hearing
However, importers may request that products being detained for a possible CSPC violation be destroyed or exported before CPSC resolves the detention. The CPSC officials noted that this would be considered on a case-by-case basis and if approved, would be at the importer’s expense and under government supervision. They added that the Consumer Product Safety Improvement Act (CPSIA) requires CPSC to give preference to destruction over exportation.
In addition, importers have the right to request an Administrative Procedures Act (APA) hearing presided over by an Administrative Law Judge (ALJ). CPSC officials note, however, that this process is slow and that CBP will hold the merchandise at the importer’s expense while the ALJ makes a determination.
CPSC to Post FAQs, CBP to Post Webinar Presentation
CPSC stated that it is working on answers to frequently asked questions regarding the detention notices which it will soon post to its Website. CBP officials added that they will soon be posting the presentations from the Webinar.