U.S. Customs and Border Protection (CBP) issued a February 22, 2011 60-Day Notice and Request for Comments regarding its use of a “Notice of Detention”. I know, a lot of you are saying to yourselves, “When did CBP starting using Notices of Detention,” and my response to you is “That’s a darn good question!”
The law, 19 U.S.C. 1499 and 19 CFR 151.16, allows CBP officers at the border to stop and search persons for merchandise. If the CBP officer discovers something suspicious, and takes it from you, then it has been “detained”. In exchange, the CBP officer is required to send to the importer or passenger a Notice of Detention form no later than 5 business days from the date of the examination, stating that: (1) the merchandise has been detained, (2) the reason for the detention, and (3) the anticipated length of the detention.
That all sounds reasonable, but the problem is that the legal requirement is often ignored by CBP. Often, a Notice of Detention is never issued by CBP to the importer, or is issued late or does not state the reason for the detained merchandise. I have seen a few hundred Notices of Detention over the past 21 years as a customs lawyer, but have never seen one that described “the anticipated length of detention.”
The Request for Comments asks the public for “ways to enhance the quality, utility, and clarity of the information to be collected.” I have a way to enhance the quality of the CBP Notice of Detention – follow the law and issue […]