Importers whose goods have been detained or seized are well advised to discuss the situation with an experienced Customs attorney.  Our customs lawyers navigate the complex administrative proceedings involving seizure on a daily basis.  We coordinate effectively with government officials, and our attorneys understand what is required in the petitions for expedited review, release, manipulation, and/or export, as may be required in a given case.  In certain matters, counsel may choose to demand a release from Customs, and if not granted, they might initiate a lawsuit to obtain a lawful release order from a federal District Court. A failure to timely appear in the administrative proceedings may result in a loss (forfeiture) of the goods to the government, and lead to civil penalties, and/or private lawsuits.

General Legal Information About Customs Seizures and Detentions

General Information

If a Customs examination is conducted for the purpose of trade compliance, the goods may be inspected for the following types of issues: (1) marks, trademarks and other intellectual property rights (IPR) issues, (2) proper origin claims, (3) proper labeling and marking of the goods, (4) the classification and valuation of the goods; (5) proper invoicing descriptions and quantity reporting; (6) compliance with the regulatory requirements of an alphabet soup of other federal agencies (e.g., ATF, CDRH, CPSC, DOC, DOT, EPA, FCC, FDA, FINCEN, F&WS, etc.) 

Some compliance issues are not a cause for a detention of the merchandise (for example, Customs may advance the valuation of goods, or reclassify merchandise into higher tariff provisions without issuing a detention).  However, certain issues that impact the admissiblity of the goods can require the agency to detain & possibly seize the merchandise - take for example, incorrect markings, IPR violations, or safety issues.  
 

Seizures

If unresolved, merchandise detentions typically evolve into seizure cases.  The government must formally undertake the legal forfeiture of the importer's goods by the issuance of a seizure notice.   After providing the importer with the opportunity for rebuttal (through administrative or judicial review) the goods may be sent for destruction or auction).  

Sometimes property other than shipped goods will be subject to seizure, such as a conveyance, currency or financial instruments.  Obviously, given the limited opportunity for rebuttal, it is important to respond effectively with experienced legal counsel.

In addition to the loss of its goods, the importer should be aware that U.S. law can provide for significant civil penalties for merchandise introduced, or attempted to be introduced, contrary to law or for bearing counterfeit marks.[2] 

Persons who have experienced a currency seizure may want to read our webpage on that topic. (here).

 

Detentions

Detained goods are typically detained within five days of arrival, following which the agency should issue a formal Notice of Detention within another five days (i.e., the importer should receive a formal detention notice within a total of 10 days after arrival, excluding weekends and holidays).  For various reasons, the government does not always abide by its own protocols.

The Notice of Detention is supposed to clearly set forth the specific reason(s) for Customs action, including the nature of any tests or inquiries to be conducted and the nature of any information that, if supplied to Customs, might accelerate the disposition of the detention.[1]  This protocol is not always followed, so it is usually helpful to have an attorney involved in the response process from the outset. 

The Notice of Detention provides an importer with a limited opportunity to respond directly to Customs; hence, it is a best practice for an importer to have ready access to all underlying documentation that supports the importation and admissibility of  its goods, and for the importer to respond in a clearly and cogently to the concerns raised by Customs.  

 

Complications

The detention and seizure process with U.S. Customs is unfortunately fraught with complications.

• Sometimes importers fail to receive timely mailed notices from U.S. Customs. If not resolved timely, forfeitures can result.

• Customs can lose track of paperwork or personnel changes can cause delays.

• Perishable goods can spoil

• Lab tests and paperwork may be discrepant, and erroneous

• Interim delays can cause expensive accruals of storage and/or demurrage fees.

• Unresolved exam flags may result in relentless delays and exam costs.

• Unresolved seizures can result in expensive civil penalty assessments.

• Redelivery Orders may also be issued by the government to reach back to shipments recently released from Customs custody.
  

  Reference Citations:
  
  [1]   19 USC § 1499(c)(2).
  
  [2]  19 U.S.C. § 1526(e); 19 U.S.C. § 1595a(c) and § 18 U.S.C. 2320.
  
  [3]  19 C.F.R. 141.113(g).
  
  [4]  19 C.F.R. 141.113(b). 

Curated News as to seizures:

August 12, 2021: DOJ: Press release: Four Defendants Arrested in Multimillion-Dollar Counterfeit Goods Trafficking Scheme including Fake UGG Boots, Nike Air Jordan Sneakers, Timberland Boots and Beats Headphones.

April 3, 2019: White House: Memorandum on Combating Trafficking in Counterfeit and Pirated Goods. Article summary.

April 3, 2019: Navarro: WSJ Op-Ed: Trump Has a Plan to Stop Fake Goods.

February 2, 2019: CBP: Enforcement statistics: FY 2019.

November 18, 2018: CBP: Webpage re: Fake Goods Real Dangers.

January 30, 2018: GAO Report: GAO-18-216: Agencies Can Improve Efforts to Address Risks Posed by Changing Counterfeits Market.

Our customs lawyers are known nationally and internationally for their work in customs and international trade law. 

The firm's offices are located in San Francisco, California, Seattle, Washington, and Los Angeles, California.

Release Procedures

For members of the trade in Long Beach, Customs set forth release procedures in Los Angeles Public Bulletin No. LA07-014.