[Federal Register Volume 84, Number 200 (Wednesday, October 16, 2019)]
[Proposed Rules]
[Pages 55251-55265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21980]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Parts 113, 133, 148, 151 and 177
[USCBP-2019-0037]
RIN 1515-AE26
Enforcement of Copyrights and the Digital Millennium Copyright
Act
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document proposes to amend the U.S. Customs and Border
Protection (CBP) regulations pertaining to importations of merchandise
that violate or are suspected of violating the copyright laws,
including the Digital Millennium Copyright Act (DMCA), in accordance
with Title III of the Trade Facilitation and Trade Enforcement Act of
2015 (TFTEA). The proposed amendments set forth in this document are
intended to clarify the definition of ``piratical articles,'' simplify
the detention process involving goods suspected of violating the
copyright laws, and prescribe new regulations enforcing the DMCA.
DATES: Comments on the proposed rule must be received on or before
December 16, 2019.
ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments via docket number
USCBP-2019-0037.
Mail: Trade and Commercial Regulations Branch, Regulations
and Rulings, Office of Trade, U.S. Customs and Border Protection, 90 K
Street NE, 10th Floor, Washington, DC 20229-1177.
Instructions: All submissions received must include the agency name
and docket number for this proposed rulemaking. All comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided. For detailed instructions on
submitting comments and additional information on the proposed
rulemaking process, see the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected during regular business days between the hours of
9 a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch,
Regulations and Rulings, Office of Trade, U.S. Customs and Border
Protection, 90 K Street NE, 10th Floor, Washington, DC. Arrangements to
inspect submitted comments should be made in advance by calling Joseph
Clark at (202) 325-0118.
FOR FURTHER INFORMATION CONTACT: Alex Bamiagis, Intellectual Property
Rights Branch, Regulations and Rulings, Office of Trade, U.S. Customs
and Border Protection, (202) 325-0415.
SUPPLEMENTARY INFORMATION:
Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. CBP also invites comments that relate to the economic,
environmental, or federalism effects that might result from this
proposed rule. If appropriate to a specific comment, the commenter
should reference the specific portion of the proposed rule, explain the
reason for any recommended change, and include data, information, or
authority that support such recommended change.
Background
I. Purpose of Proposed Amendments
U.S. Customs and Border Protection (CBP) has responsibilities for
border enforcement of intellectual property rights (IPR) laws and
regulations. The majority of the CBP regulations regarding these
efforts are found in part 133 of title 19 of the Code of Federal
Regulations (19 CFR part 133). Part 133 provides for the recordation of
trademarks, trade names, and copyrights with CBP and prescribes the
enforcement procedures applicable to suspected infringing merchandise.
Part 133 also sets forth procedures for the seizure and disposition of
articles bearing prohibited marks or names, and piratical articles,
including release to the importer in appropriate circumstances.
CBP is proposing amendments to part 133 of the CBP regulations
pursuant to Title III of the Trade Facilitation and Trade Enforcement
Act of 2015 (Pub. L. 114-125; 130 Stat. 122; Section 628a of the Tariff
Act of 1930 (19 U.S.C. 1628a), as amended) (TFTEA). Among the changes
made by TFTEA are certain provisions regarding enforcement of the
Digital Millennium Copyright Act (Pub.
[[Page 55252]]
L. 105-304, 112 Stat. 2860, as amended by Pub. L. 106-113, 113 Stat.
1536, (codified at 17 U.S.C. 1201)) (DMCA). Among other things, the
DMCA prohibits the importation of devices used to circumvent the
technological measures used by certain copyright owners to protect
their works (``copyright protection measures''). Section 303(a) of
TFTEA specifically provides that CBP may seize merchandise containing a
circumvention device violating the DMCA.
TFTEA requires CBP to make certain pre-seizure disclosures to right
holders if CBP determines that these disclosures would assist the
agency in determining whether imported merchandise violates the
copyright laws, including the DMCA. These disclosures assist CBP in
determining whether certain goods are, in fact, in violation of the
copyright laws, including the DMCA.
The proposed amendments to part 133 of the CBP regulations provide
for such disclosures upon detention of merchandise suspected of
violating the copyright laws, including the DMCA. In accordance with
TFTEA, these pre-seizure disclosures may only be made where the
copyright has been recorded with CBP. In accordance with TFTEA, CBP
will not provide these disclosures when doing so would compromise an
ongoing law enforcement investigation or national security.
As noted above, TFTEA provides for seizure of merchandise
containing a circumvention device in violation of the DMCA. TFTEA
directs CBP to disclose to persons injured by merchandise seized for
violation of the DMCA information equivalent to the information
disclosed to copyright owners when merchandise is seized for violation
of the copyright laws. To identify those persons eligible to receive
these post-seizure disclosures, TFTEA directs CBP to create a list of
persons eligible to receive disclosures when injured by violations of
the DMCA resulting in seizure of the violative merchandise. Section
133.47 of the proposed regulations provide for such disclosures and the
establishment of the list. CBP will publish a notice in the Federal
Register when the list is established, and again any time the list is
revised.
On October 5, 2004, CBP published a proposed rulemaking in the
Federal Register (69 FR 59562) proposing amendments to part 133 of 19
CFR to set forth changes to CBP's enforcement procedures, including
enhanced disclosure provisions and provisions to enforce the DMCA.
Although comments were solicited and received from the public on the
proposed amendments, CBP did not publish a final rule adopting the
proposal. Due to the passage of time since the publication of the 2004
proposed rulemaking, CBP is proposing new amendments to part 133 of the
CBP regulations.
II. Disclosure of Information Pertaining to Certain Intellectual
Property Rights Enforced at the Border
A. The Trade Secrets Act and Disclosure Under the Current Regulations
The Trade Secrets Act (18 U.S.C. 1905) bars the unauthorized
disclosure by government officials of any information received in the
course of their employment or official duties when such information
``concerns or relates to the trade secrets, processes, operations,
style of work, or apparatus, or to the identity, confidential
statistical data, amount or source of any income, profits, losses, or
expenditures of any person, firm, partnership, corporation, or
association.'' 18 U.S.C. 1905.
Specifically, the Trade Secrets Act protects those required to
furnish commercial or financial information to the government by
shielding them from the competitive disadvantage that could result from
disclosure of that information by the government. In turn, this
protection encourages those providing information to the government to
furnish accurate and reliable information that is useful to the
government.
The Trade Secrets Act, however, permits those covered by the Act to
disclose protected information when the disclosure is otherwise
``authorized by law,'' which includes both statutes expressly
authorizing disclosure and properly promulgated substantive agency
regulations authorizing disclosure based on a valid statutory
interpretation. See Chrysler v. Brown, 441 U.S. 281, 294-316 (1979).
For example, the current CBP regulations set forth in 19 CFR 133.21
allow disclosure to a right holder of certain information that may
comprise information otherwise protected by the Trade
Secrets Act for the purposes of assisting CBP in determining
whether merchandise bears a counterfeit mark. See CBP Dec. 15-12,
published in the Federal Register (80 FR 56370) on September 18, 2015,
effective October 19, 2015, for background information.
B. Statutory Analysis Concerning Disclosure of Commercial or Financial
Information
The Secretary of the Treasury has authority to disclose information
otherwise protected under the Trade Secrets Act when such disclosures
are authorized by law.
Disclosures meeting the ``authorized by law'' standard of the Trade
Secrets Act include those made under regulations that are: (1) In
compliance with the provisions of the Administrative Procedure Act (5
U.S.C. 551 et seq.); and (2) based on a valid statute. Chrysler, 441
U.S. at 294-96 and 301-03. Various provisions in titles 15 and 19 of
the United States Code authorize CBP to promulgate regulations to
prohibit the importation of merchandise that infringes intellectual
property rights. Among these, TFTEA provides statutory authority for
information disclosure, amending provisions in title 19 of the United
States Code (U.S.C.) to permit, and in some instances require, CBP to
provide information otherwise protected under the Trade Secrets Act to
IPR owners under specified conditions.
Title III of TFTEA permits, and in some instances requires, CBP to
disclose information to IPR owners, to allow them to assist with
enforcement. CBP enforces statutes prohibiting the importation of
infringing merchandise. Specifically, 19 U.S.C. 1526 prohibits the
importation of merchandise that infringes a trademark, 17 U.S.C. 602
prohibits the importation of merchandise that infringes a copyright
under that title, and lastly, 17 U.S.C. 1201 prohibits the importation
of devices that circumvent copyright protection systems. In order to
aid CBP in enforcing these prohibitions, 17 U.S.C. 602(b) permits the
Secretary of the Treasury to prescribe a procedure by which CBP will
notify an interested party (which CBP has defined as the owner of the
copyright) of the importation of articles that appear to be copies or
phonorecords of a copyrighted work. See Copyright Act of 1976, Public
Law 94-553, 90 Stat. 2541 (Oct. 19, 1976). The disclosure of
information mandated by TFTEA is only available where the underlying
trademark or copyright has been recorded with CBP.
Section 302 of TFTEA amended the Tariff Act of 1930 by inserting
section 628a (19 U.S.C. 1628a) after section 628 (19 U.S.C. 1628),
requiring CBP to provide IPR owners with information appearing on
imported articles or their packaging and labels, including unredacted
images of those articles, if the examination of the merchandise by the
IPR owner would assist CBP in determining if those articles violate IPR
laws enforced by CBP. Section 302 of TFTEA also permits CBP to provide
to the IPR owner unredacted samples of the merchandise, subject to
applicable bonding requirements, if the IPR
[[Page 55253]]
owner's help would assist CBP in determining if the importations
occurred in violation of 17 U.S.C. 602 (copyright), 17 U.S.C. 1201
(circumvention devices), or 19 U.S.C. 1526 (trademark). The information
may only be released where the underlying trademark or copyright has
been recorded with CBP. CBP may not disclose information, photographs,
or samples when such disclosure would compromise an ongoing law
enforcement investigation or national security.
In 2015, CBP finalized new regulations for trademark enforcement,
providing for disclosure of information to mark owners. CBP has
proposed to update 19 CFR 133.21 to include updated bond provisions in
keeping with the TFTEA disclosures, to limit disclosure of information
to owners of properly recorded trademarks, as required by 19 U.S.C.
1628a(c), and to conform 19 CFR 133.21 to the copyright and DMCA
provisions proposed in 19 CFR 133.42 and 133.47, respectively. For more
information on prior changes to trademark enforcement, see CBP Dec. 15-
12, published in the Federal Register (80 FR 56370) on September 18,
2015, effective October 19, 2015.
Section 303(a) of TFTEA amended section 596(c)(2) of the Tariff Act
of 1930 (19 U.S.C. 1595a(c)(2)) by adding subparagraph G (19 U.S.C.
1595a(c)(2)(G)), which provides for the seizure of articles containing
circumvention devices imported in violation of the DMCA (17 U.S.C.
1201). Correspondingly, section 303(b) of TFTEA requires that when
merchandise containing a circumvention device is seized pursuant to 19
U.S.C. 1595a(c)(2)(G), CBP must disclose to the parties injured by that
circumvention device information regarding the seized merchandise that
is equivalent to information that CBP currently provides to copyright
owners upon seizure of merchandise for violation of the copyright laws.
(For more information regarding the information provided to copyright
owners, see proposed 19 CFR 133.42(e) in this document.) Section
303(b)(2) of TFTEA directs CBP to establish and maintain a list of
persons eligible to receive such disclosures, and section 303(b)(3) of
TFTEA requires the Secretary of the Treasury to prescribe regulations
establishing procedures to implement these practices. Section 624 of
the Tariff Act of 1930 (19 U.S.C. 1624), as amended, also authorizes
the Secretary of the Treasury to promulgate regulations to carry out
the provisions of the Tariff Act of 1930, as amended, and provides
authority for further regulations implementing the changes directed by
TFTEA.
This proposed rule is intended to authorize, and in some cases
require, CBP personnel to disclose, either at the time of detention of
suspect merchandise or after seizure of violative merchandise,
information that might reveal commercial or financial information
otherwise protected by the Trade Secrets Act. The proposed rule
replicates the procedural safeguards implemented in the trademark
regulations at 19 CFR 133.21 to mitigate potential risks from the
disclosure of protected information. For more information on these
safeguards, see CBP Dec. 15-12, published in the Federal Register (80
FR 56370) on September 18, 2015, effective October 19, 2015.
III. Description of Proposed Amendments to Part 133
CBP is proposing changes to part 133 of the CBP regulations to
implement certain provisions of TFTEA. First, CBP is proposing to amend
the scope provision at Sec. 133.0 to include TFTEA-mandated
disclosures. Next, CBP is proposing to amend subpart E of part 133
regarding detention of merchandise suspected of violating the copyright
laws, seizure of such violative merchandise, and disclosure of
information to right holders. The proposed changes are intended to
require pre-seizure disclosure of certain information to right holders
if review of the information, or examination or testing of the imported
merchandise, by the right holder would assist CBP in its determination
as to whether suspect merchandise does, in fact, violate the copyright
laws. The proposed amendments to subpart E also provide procedural
safeguards to limit the release of information concerning non-violative
shipments and simplify the detention process relative to goods
suspected of violating the copyright laws.
Also, CBP is proposing a new subpart F to part 133 (existing
subpart F is proposed to be redesignated as new subpart G). Proposed
subpart F prescribes the disclosure of information, and potential
provision of samples, upon detention or seizure of goods suspected of
violating the DMCA to enhance CBP's ability to prohibit circumvention
devices from being entered into the United States. Prior to seizure,
CBP will disclose information appearing on the imported merchandise to
the owner of the recorded copyright who employs the copyright
protection measure that the imported merchandise is suspected of
circumventing, if it will assist CBP in determining whether the
merchandise is violative. Similarly, when CBP seizes violative
merchandise, it will disclose information appearing on the imported
merchandise, as well as information received in connection with the
importation, to certain right holders.
A. Subpart E to Part 133: Importations Violating Copyright Laws
CBP is proposing several amendments to subpart E of part 133 of the
CBP regulations. The proposed changes would simplify procedures and
strengthen CBP's ability to enforce the copyright laws and the
prohibition against the importation of piratical articles.
1. Definition of ``Piratical Articles''
Section 133.42(a) currently provides that ``[i]nfringing copies or
phonorecords are `piratical' articles.'' To more accurately define
``piratical articles'' for enforcement purposes, CBP is proposing to
amend paragraph (a) of Sec. 133.42 to define ``piratical articles'' as
those that constitute unlawful (made without the authorization of the
copyright owner) copies or phonorecords of a recorded copyright.
Eligible copyrights may be recorded with CBP using the Intellectual
Property Rights e-Recordation (IPRR) application found at https://iprr.cbp.gov/.
2. Procedures on Suspicion of Piratical Copies
Existing Sec. 133.43 sets forth the procedures CBP employs when it
suspects that imported articles may be infringing copies or
phonorecords of recorded copyrights and provides for: (1) Notice of
detention of suspected articles to the importer and to the copyright
owner, including the disclosure of certain information; (2) the release
of redacted samples of suspected articles to the copyright owner; (3)
the release of the goods in the case of inaction by the copyright
owner; (4) in cases where the copyright owner makes a written demand
for the exclusion of the suspected articles, a bonding requirement and
exchange of briefs process culminating in submission to CBP for
administrative review; and (5) alternative procedures to the
administrative process (court action).
CBP believes that the procedure requiring a copyright owner to file
a written demand for exclusion of the suspected infringing copies, and
requiring an exchange of additional evidence, briefs, and other
pertinent material to substantiate a claim or denial of piracy between
the parties is ineffective for enforcing the Copyright Act of 1976 and
is inconsistent with
[[Page 55254]]
TFTEA. CBP believes that these procedures are an outdated and
inefficient mechanism to address situations where CBP has a suspicion
that certain goods may be piratical. These provisions are rarely used
and unduly burdensome on CBP and all other parties involved.
Essentially, these procedures limit CBP's ability to conduct the
required examination and render its decision in a timely and efficient
manner. The related provision, Sec. 133.44, prescribes the actions to
be taken when CBP sustains or denies a claim of piracy under Sec.
133.43. Accordingly, CBP is proposing to remove Sec. Sec. 133.43 and
133.44 in their entirety from title 19 of the CFR.
However, CBP proposes to retain the procedures regarding detention
of suspected infringing copies or phonorecords of recorded copyrights,
notice of such detention to the importer and to the copyright owner,
and the disclosure of certain information and release of redacted
samples to the copyright owner currently provided for in Sec. 133.43
in a revised Sec. 133.42. Section 133.42 currently provides that the
importation of infringing copies or phonorecords of works copyrighted
in the United States is prohibited and sets forth provisions regarding
the seizure and forfeiture of such infringing works. CBP proposes to
amend and expand Sec. 133.42 as follows to provide more comprehensive
regulations on the manner in which it detains suspected piratical
articles, seizes piratical articles, and exchanges information with
affected parties:
Proposed Sec. 133.42(a) sets forth definitions for
purposes of part 133.
Proposed Sec. 133.42(b)(1) prescribes that CBP may detain
imported articles suspected of constituting a piratical copy of a
copyrighted work for which a claim to copyright has been recorded with
CBP.
Proposed Sec. 133.42(b)(2)(i)(A) specifies that, pursuant
to 19 CFR 151.16(c) and 19 U.S.C. 1499(c)(2), a notice of detention is
issued to the importer within five business days from the date of CBP's
decision to detain suspect merchandise. CBP will also inform the
importer that certain information may already have been disclosed to
the owner of the recorded copyright, and in any event, CBP will
disclose such information to the owner no later than the date of
issuance of the detention notice.
Proposed Sec. 133.42(b)(2)(i)(B) sets forth that CBP may
disclose to the owner of the recorded copyright information that
appears on the detained merchandise and/or its retail packaging,
including unredacted photographs, images, or samples, as described in
proposed paragraph (b)(3) of this section, unless the importer provides
information within seven business days of issuance of the detention
notice that is sufficient for CBP to determine that the detained
merchandise is not piratical.
Proposed Sec. 133.42(b)(2)(ii) provides that if the
importer does not provide information to CBP within seven business days
of issuance of the detention notice that is sufficient for CBP to
determine that the detained merchandise is not piratical, and CBP still
suspects the merchandise to be violative, CBP will proceed with
disclosure to the owner of the recorded copyright as described in
proposed paragraph (b)(3) of this section, if CBP concludes that
disclosure would assist CBP in determining whether the merchandise is
piratical, and such disclosure would not compromise an ongoing law
enforcement investigation or national security.
Proposed Sec. 133.42(b)(3) sets forth the information CBP
will disclose to the owner of the recorded copyright pursuant to
paragraph (b)(2)(ii) if CBP concludes that disclosure would assist CBP
in determining whether the merchandise is piratical, and such
disclosure would not compromise an ongoing law enforcement
investigation or national security. This includes information appearing
on the goods and their retail packaging and unredacted images or
photographs of the merchandise. Proposed Sec. 133.42(b)(3) also
provides that CBP may release a sample to the owner of the recorded
copyright, subject to the bonding and return requirements of proposed
Sec. 133.42(c).
Proposed Sec. 133.42(b)(4) describes the basic
importation information to be disclosed to the owner of the recorded
copyright.
Proposed Sec. 133.42(b)(5) provides for disclosure of
redacted photographs or images, or the provision of redacted samples,
including retail packaging or labels, to the owner of the recorded
copyright. Identifying information to be redacted would include serial
numbers; dates of manufacture; lot codes; batch numbers; universal
product codes; the name or address of the manufacturer, exporter, or
importer of the merchandise; or any markings that could reveal the name
or address of the manufacturer, exporter, or importer of the
merchandise. CBP may release the sample identified in this paragraph
when the owner of the recorded copyright furnishes to CBP a bond in the
form and amount specified by CBP. CBP may demand the return of the
sample at any time.
Proposed Sec. 133.42(c) pertains to the disclosure of
unredacted photographs or images, or the provision of unredacted
samples, including retail packaging or labels, to the owner of the
recorded copyright under paragraph (b) of this section. Paragraph (c)
provides that, with the disclosure of the photographs or images, or
provision of the sample, CBP will notify the owner of the recorded
copyright that some or all of the information it receives may be
subject to the protections of the Trade Secrets Act, is being issued to
the owner of the recorded copyright by CBP under an exception to the
Trade Secrets Act, and is not to be used by the owner of the recorded
copyright (nor by parties related to the owner of the recorded
copyright or agents thereof) for any purpose other than to assist CBP
in determining whether the merchandise described in the notice of
detention is piratical. CBP will release the sample identified in this
paragraph when the owner of the recorded copyright furnishes to CBP a
bond in the form and amount specified by CBP. CBP may demand the return
of the sample at any time.
Proposed Sec. 133.42(d) provides for disclosure of
unredacted photographs or images, including photographs or images of
retail packaging or labels, to the importer any time after presentation
of the suspect goods to CBP for examination. Proposed Sec. 133.42(d)
also provides that, upon the importer's request, CBP will provide
samples to the importer, including samples of retail packaging or
labels, any time after presentation of the suspect goods to CBP for
examination.
Proposed Sec. 133.42(e) provides that, in cases involving
the seizure of piratical articles, CBP will disclose to the owner of
the recorded copyright certain limited information pertaining to the
attempted importation.
Proposed Sec. 133.42(f) provides that, after seizure, CBP
will provide--upon receipt of a request by the owner of the recorded
copyright and upon that owner furnishing a bond to CBP in the form and
amount specified by CBP--photographs, images, or samples, including
retail packaging or labels, to the owner of the recorded copyright. CBP
may demand the return of the sample at any time.
Proposed Sec. 133.42(g) provides for the consent of the
owner of the recorded copyright to allow entry of the seized and
forfeited merchandise, or other disposition subject to the importer's
right to petition for relief under Sec. 171.
[[Page 55255]]
B. New Re-Designated Subpart F to Part 133: Enforcement Provisions for
the Digital Millennium Copyright Act (DMCA)
In 1998, Congress enacted the DMCA. Among other things, the DMCA
prohibits the circumvention of technological measures used by copyright
owners to protect their works. Section 1201(a)(3)(B) of title 17 of the
United States Code (17 U.S.C. 1201(a)(3)(B)) provides that, ``[a]
technological measure `effectively controls access to a work' if the
measure, in the ordinary course of its operation, requires the
application of information, or a process or a treatment, with the
authority of the copyright owner, to gain access to the work.'' Section
1201(b)(2)(B) of title 17 of the United States Code (17 U.S.C.
1201(b)(2)(B)) provides that ``[a] technological measure `effectively
protects a right of a copyright owner under this title' if the measure,
in the ordinary course of its operation, prevents, restricts, or
otherwise limits the exercise of a right of a copyright owner under
this title.'' Pursuant to section 303(b)(3) of TFTEA, the Secretary of
the Treasury must prescribe regulations establishing procedures
relative to the seizure of articles the importation of which is
prohibited by and found to violate the DMCA.
Although the current CBP regulations do not specifically provide
for the detention and seizure of articles that constitute violations of
the DMCA, CBP has implemented the DMCA by providing CBP personnel with
internal enforcement guidelines and advice on how to enforce the DMCA.
Where CBP finds that certain devices violate the DMCA by circumventing
a recorded copyright owner's copyright protection measure, the goods
are currently subject to seizure and forfeiture under 19 U.S.C.
1595a(c)(2)(C) for a violation of the DMCA (17 U.S.C. 1201). Section
303 of TFTEA amended section 596(c)(2) of the Tariff Act of 1930 (19
U.S.C. 1595a(c)(2)) by adding subparagraph G (19 U.S.C. 1595a(c)(2)(G))
for DMCA violations, which, in essence, accomplishes the same
enforcement as that carried out under the internal enforcement
guidelines. However, the current CBP internal enforcement guidelines
and advice on how to enforce the DMCA include neither the post-seizure
DMCA disclosure to those persons injured by DMCA violations nor the
establishment of a list of those persons approved to receive
information post-seizure, as provided for in section 303 of TFTEA. When
final, the proposed regulations will replace the existing internal
enforcement guidelines.
Pursuant to 19 U.S.C. 1628a, CBP is proposing to add regulatory
provisions for the detention and seizure of articles that constitute
violations under the DMCA. Specifically, CBP is proposing to re-
designate existing subpart F in part 133, which contains regulations
pertaining to procedures following forfeiture or assessment of
liquidated damages, as a new subpart G, and to add a new subpart F with
a new Sec. 133.47, setting forth regulatory provisions that prescribe
the detention and seizure of certain articles that violate the DMCA.
The regulatory provisions proposed in Sec. 133.47 closely mirror the
comparable provisions for trademark as laid out in Sec. 133.21 and
copyright as laid out in proposed Sec. 133.42, described above.
Pursuant to 19 U.S.C. 1499(c)(2), CBP will issue a notice of detention
to the importer within five business days from the date of CBP's
decision to detain suspect merchandise. CBP will inform the importer
that the importer may provide information within seven business days of
issuance of the detention notice to help CBP to determine whether the
detained merchandise violates the DMCA. After that period, if CBP still
suspects the merchandise may be violative, CBP will disclose
information appearing on the detained merchandise and/or its retail
packaging to the owner of the recorded copyright who employs a
copyright protection measure, if CBP concludes that the disclosure
would assist CBP in its determination and disclosure would not
compromise and ongoing law enforcement investigation or national
security. Disclosed information may also include unredacted samples, if
necessary to assist CBP in determining whether or not the detained
merchandise violates the DMCA. The detention will be for a period of up
to 30 days from the date on which the merchandise is presented for
examination. In accordance with 19 U.S.C. 1499(c), if, after the
detention period, the article is not released, the article will be
deemed excluded for purposes of 19 U.S.C. 1514(a)(4).
In the event that CBP determines that such detained articles
violate 17 U.S.C. 1201, CBP will seize the articles under 19 U.S.C.
1595a(c)(2)(G) and institute forfeiture proceedings in accordance with
19 CFR part 162. CBP will, within 30 business days of the seizure,
notify the person CBP determines is injured by the violation of the
DMCA and will disclose certain information regarding the shipment to
such person, provided that person meets the requirements detailed
below. In the event that articles released from CBP custody are
determined to be violative, proposed Sec. 133.48 provides for
redelivery of the articles. Articles determined by CBP not to violate
17 U.S.C. 1201 will be released. Importers may petition for relief from
the seizure and forfeiture under the provisions of 19 CFR part 171.
Articles that have been seized and forfeited to the U.S. Government
under part 133 will be disposed of in accordance with 19 CFR 133.52(b).
The proposed regulations define persons eligible for pre-seizure
and post-seizure DMCA disclosures. Under the proposed regulations, a
person eligible for pre-seizure disclosures is the owner of a recorded
copyright who employs a copyright protection measure that may have been
circumvented or attempted to be circumvented by articles that violate
the importation prohibitions of the DMCA. Likewise, the proposed
regulations define an injured person authorized to receive post-seizure
DMCA disclosures as the owner of a recorded copyright who employs a
copyright protection measure that has been circumvented or attempted to
be circumvented by articles seized for violation of the importation
prohibitions of the DMCA, and who has successfully applied to CBP for
DMCA protections.
Pursuant to section 303(b) of TFTEA, CBP will establish and
maintain a list of the persons who have successfully applied to CBP to
receive disclosures from CBP when injured by violations of the DMCA.
Under proposed Sec. 133.47(b)(2)(iii), CBP will publish a notice in
the Federal Register announcing the establishment of a list of approved
persons. Persons who believe they have been injured by a DMCA violation
may request to be added to the list through a separate application to
the IPR Branch supplemental to an application to record a copyright.
After the list has been established, CBP will publish a notice in the
Federal Register when the list is revised.
IV. Other Amendments
As a consequence of the proposed removal of Sec. Sec. 133.43 and
133.44, it is also proposed to revise a related provision in Sec.
113.70, which sets forth bond conditions to indemnify the United States
for detention of copyrighted material. CBP proposes to revise 19 CFR
113.70 to set forth, in one centralized location, the bond conditions
for an IPR owner to obtain samples of imported merchandise suspected of
being infringing. Currently, there is bond language that pertains to
IPR sample bonds in various provisions throughout 19 CFR part 133. To
reduce redundancy, CBP is proposing to add a
[[Page 55256]]
cross reference to the new IPR sample bond conditions set forth in
Sec. 113.70 in proposed Sec. 133.21(b)(5), (c)(2), and (f), Sec.
133.25(c), Sec. 133.42(b)(5), (c)(2), and (f), and Sec. 133.47(b)(5),
(c)(2), and (f), and to consolidate duplicated bond condition language
from these provisions. Accordingly, CBP is proposing to remove
references to Sec. 133.43 in existing Sec. 113.42.
As noted above, CBP is proposing additional amendments to 19 CFR
133.21 to clarify the ``identifying information'' that CBP will redact
prior to disclosing information pursuant to Sec. 133.21(b)(5). Section
133.21(b)(5) provides examples of information that CBP would redact
prior to disclosure under this provision, including ``any mark that
could reveal the name or address of the manufacturer, exporter, or
importer of the merchandise.'' CBP is proposing to replace the word
``mark'' with the more general term ``markings,'' as ``mark'' is a more
narrowly defined term of art. CBP is proposing further changes to
conform Sec. 133.21(b) and (f) to the related copyright (Sec.
133.42(b) and (f)) and DMCA (Sec. 133.47(b) and (f)) provisions
proposed in this document.
In addition, CBP is proposing conforming amendments to Sec.
133.25. These include replacing ``trademark owner'' with ``owner of the
recorded mark'' and replacing references to the legacy Customs Service
with CBP. CBP is proposing to amend Sec. 133.51(a), to reflect the
addition of proposed Sec. 133.48, which will provide for redelivery of
merchandise found to violate the DMCA. Similarly, CBP is proposing to
amend Sec. 133.52(b) to account for the alternative dispositions of
seized merchandise reflected in proposed Sec. Sec. 133.42(g) and
133.47(g).
Section 151.16 of title 19 of the CFR provides for the detention of
merchandise, and states that CBP will make a final determination with
respect to the admissibility of detained merchandise within 30 days
after the merchandise has been presented to CBP for examination. Within
Sec. 151.16, paragraph (a) identifies certain categories of articles
that are excepted from this provision, including detentions arising
from ``possibly piratical copies (see part 133, subpart E, of this
Chapter).'' The current detention procedures in subpart E of 19 CFR
part 133 allow up to 120 days for an importer or right holder of a
suspect article to provide CBP with evidence, briefs, or other
pertinent information to substantiate a claim or denial of
infringement, prior to CBP's issuance of an admissibility
determination. Due to the proposed amendments to Sec. 133.42,
discussed above, which shorten many of the data exchange time frames
and require CBP to issue a final determination with respect to the
admissibility of detained merchandise within 30 days after the
merchandise has been presented to CBP for examination, there is no
longer any reason to exempt possibly piratical copies or phonorecords
from the 30-day detention period set forth in Sec. 151.16.
Accordingly, this document proposes to amend 19 CFR 151.16(a) by
removing the reference to ``possibly piratical copies (see part 133,
subpart E, of this Chapter)'' and by adding a cross-reference to 19 CFR
151.16(c) to the notice provisions set forth in Sec. Sec. 133.42(b)(2)
and 133.47(b)(2). This document also proposes non-substantive editorial
changes to Sec. 151.16.
Likewise, this document proposes to amend 19 CFR 177.0 by removing
the existing exception for copyright determinations under part 133.
Currently, Sec. 133.43 provides a unique process for determinations of
copyright infringement, an exception to the rulings process laid out in
part 177. As a consequence of the proposed changes to Sec. Sec. 133.42
and 133.43, that process will be replaced. As a result, rulings related
to copyright determinations may be requested pursuant to part 177, and
no longer constitute an exception to the process laid out therein.
In addition, this document proposes to augment the existing
personal use exemption in 19 CFR 148.55, and clarify its application.
Currently, this exemption provides for the entry of limited quantities
of merchandise that otherwise would be prohibited from entry for
trademark violations, when the merchandise accompanies any individual
arriving in the United States. However, 17 U.S.C. 602(a)(3)(B) provides
a similar personal use exemption permitting the entry of merchandise
otherwise prohibited for violating copyright law, under certain
conditions. CBP has proposed amendments to Sec. 148.55, to reflect
this statutory exemption. The conditions are set forth in existing
Sec. 148.55(b), which is not being proposed for amendment. The
conditions are that (1) the exemption ``shall not be granted to any
person who has taken advantage of the exemption for the same type of
article within the 30-day period immediately prior to his arrival in
the United States,'' and (2) ``[i]f an article which has been exempted
is sold within one year of the date of importation, the article or its
value (to be recovered from the importer), is subject to forfeiture''
(except in the case of a ``sale subject to judicial order or in the
liquidation of an estate'').
This document also proposes amendments to the general and specific
authority citations to part 133 to more accurately reflect the
statutory authority that pertains to the part and that which pertains
more specifically to particular sections within part 133.
Executive Orders 12866, 13563, and 13771
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. Executive Order 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') directs agencies to reduce regulation
and control regulatory costs and provides that ``for every one new
regulation issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process.''
This rule is a significant regulatory action under section 3(f) of
Executive Order 12866. Accordingly, OMB has reviewed this regulation.
As the impacts of this rule are de minimis, this rule is exempt from
Executive Order 13771. See OMB's Memorandum, ``Guidance Implementing
Executive Order 13771, Titled `Reducing Regulation and Controlling
Regulatory Costs' '' (April 5, 2017).
One of CBP's roles is to safeguard the U.S. economy from the
importation of goods that violate intellectual property rights. Under
current regulations, if CBP suspects that a shipment may be violative,
it can share redacted samples of the suspect imported good with a right
holder.\1\ To implement TFTEA's intellectual property rights
provisions, CBP is proposing regulatory changes that will, among other
things, allow it to share unredacted images of suspect imports with
right holders, if examination by right holders would assist CBP's
determination.
---------------------------------------------------------------------------
\1\ Note that this rule does not alter CBP's ability to provide
redacted samples of an import to a right holder without prior
notification to the importer.
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[[Page 55257]]
Sharing these unredacted samples and images with right holders may
provide access to information about the importer protected by the Trade
Secrets Act. The proposed rule establishes a procedure under which,
following the notice to the importer required by 19 U.S.C. 1499, the
importer has seven business days to establish to CBP that the suspect
imports are not piratical and are instead admissible. If the importer
is unable to demonstrate the admissibility of its imports within this
timeframe, CBP will share information with the right holder by
disclosing or releasing unredacted samples of the imports in question.
As CBP is establishing a new process for copyrights, it does not
have data on the number of times CBP suspects shipments are piratical.
However, in 2012 CBP published an interim final rule that established
similar procedures for trademarks. (77 FR 24375, September 24, 2012).
For analytical purposes, CBP can assume that this rule will have
similar effects after adjusting for the differing volumes. Between
fiscal years 2014 and 2018, CBP sent out an average of 824 detention
letters every fiscal year for suspected trademark infringements. Based
on the proportion of live trademark recordations \2\ available to
support the agency's IPR seizures every fiscal year, relative to the
copyright recordations, CBP estimates an average of approximately
21,423 seizures based on trademark, 8,881 based on copyright, and 116
DMCA seizures. If the number of detention letters is proportional to
the number of seizures, CBP would estimate that this rule will result
in 345 more detention letters for possible copyright infringing
importations.
---------------------------------------------------------------------------
\2\ Source: CBP's IPRiS database. Sampling methodology averaged
five equally spaced dates in every fiscal year to estimate the IPRiS
live recordations available for IPR seizures (95% CI, p = 0.05)
annually. CBP took several sample counts per year as opposed to a
single annual count to ensure a representative measure as IPRiS
recordations enter and expire throughout the year.
---------------------------------------------------------------------------
CBP estimates that the procedure to demonstrate that the imports
are not piratical will take two hours per affected importer at a cost
of $29.76 per hour.3 4 This is based on the existing
information collection for the Notice of Detention (OMB Control Number
1651-0073), which is being updated for this rulemaking. CBP estimates
that importers will bear an opportunity cost as a result of the higher
number of detention notices caused by this rule. CBP estimates that
this opportunity cost will total $20,534 (345 * 2 * $29.76) for
copyright detentions and $238 (4 * 2 * 29.76) for DMCA detentions for a
total monetized cost of $20,534.
---------------------------------------------------------------------------
\3\ Source: U.S. Bureau of Labor Statistics. Occupational
Employment Statistics, ``May 2017 National Occupational Employment
and Wage Estimates, United States- Median Hourly Wage by Occupation
Code.'' Updated March 30, 2018. Available at https://www.bls.gov/oes/2017/may/oes_nat.htm. Accessed June 11, 2018.
\4\ The total compensation to wages and salaries ratio is equal
to the calculated average of the 2017 quarterly estimates (shown
under Mar., June, Sep., Dec.) of the total compensation cost per
hour worked for Office and Administrative Support occupations
($26.2600) divided by the calculated average of the 2017 quarterly
estimates (shown under Mar., June, Sep., Dec.) of wages and salaries
cost per hour worked for the same occupation category ($17.7425).
Source of total compensation to wages and salaries ratio data: U.S.
Bureau of Labor Statistics. Employer Costs for Employee
Compensation. Employer Costs for Employee Compensation Historical
Listing March 2004-March 2018, ``Table 3. Civilian workers, by
occupational group: employer costs per hours worked for employee
compensation and costs as a percentage of total compensation, 2004-
2018 by respondent type.'' March 2018. Available at https://www.bls.gov/web/ecec/ececqrtn.pdf. Accessed June 11, 2018.
---------------------------------------------------------------------------
CBP is also proposing to formalize the existing practices used to
enforce the DMCA. As discussed above, in 1998, Congress enacted the
DMCA. The DMCA prohibits the importation of devices used to circumvent
the copyright protection measures copyright owners use to protect their
works. Although current regulations do not specifically provide for
detention and seizure of articles that constitute violations of the
DMCA, CBP has enforced the DMCA by providing CBP personnel with
internal enforcement guidelines and advice on how to enforce DMCA
violations. In FY 2016 there were approximately 70 DMCA seizures. It is
possible that the provisions of this rule that were already discussed
will result in a small increase in DMCA seizures. TFTEA requires CBP to
formalize the foregoing processes with respect to the DMCA. The
formalization of these existing practices in regulations does not
change current practice, so this provision will not have additional
impacts if this rule is finalized.
In addition to the proposed use of unredacted samples, CBP is
proposing to amend the detention procedures applicable to imported
articles that are suspected of being a piratical copy or phonorecord of
a copyrighted work. The current detention procedures in the regulations
allow up to 120 days for an importer or right holder of a suspect
article to provide CBP with evidence, briefs, or other pertinent
information to substantiate a claim or denial of infringement, prior to
CBP's issuance of an admissibility determination. To expedite this
process, CBP is proposing to amend the regulations to require the
agency to render an admissibility decision within 30 days from the date
the articles are presented to CBP for examination. As the current
detention procedures are seldom used, according to CBP subject matter
experts, CBP does not believe the proposed changes will impose a
significant effect on the public.
The Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.) (RFA), as
amended by the Small Business Regulatory Enforcement and Fairness Act
of 1996, requires agencies to assess the impact of regulations on small
entities. A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business per the Small Business Act); a small
not-for-profit organization; or a small governmental jurisdiction
(locality with fewer than 50,000 people). Section 604 of the RFA
requires an agency to perform a regulatory flexibility analysis for a
rule unless the agency certifies under section 605(b) that the
regulatory action would not have a significant economic impact on a
substantial number of small entities.
As described in the Executive Orders 12866, 13563, and 13771
analysis above, CBP estimates that this rule will result in the
issuance of 345 additional notices of detention. CBP's current
examination policies, use of shared enforcement systems, and targeting
criteria that take into account previous examinations when determining
risk make it unlikely that an importer who receives a notice of
detention with this rule will be required to repeatedly prove the
admissibility of their imports.\5\ As such, CBP assumes for the
purposes of this analysis that the number of affected importers from
this rule will be equal to the number of additional detention notices
resulting from this rule--345--with each importer receiving only one
detention notice. To the extent that an importer must prove the
admissibility of their imports more than once with this rule, the
number of importers affected by this rule would be lower and the cost
of this rule per affected importer would be higher.
---------------------------------------------------------------------------
\5\ CBP reserves the right to detain any imported merchandise,
even if an importer has previously shown that its merchandise is
admissible. This will depend on the particulars of the importation.
Previous imporations are taken into account in the risk profile, so
having proven the authenticity of an importation in the past makes
it less likely that an importer will receive a Notice of Detention
for subsequent importations.
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These importers are not centered in any particular industy; any
importer of goods covered by a recorded copyright may be affected by
this rule if CBP has a reasonable suspicion to believe their
[[Page 55258]]
imported merchandise may constitute a piratical copy and CBP cannot
determine if an import is a piratical copy or prohibited circumvention
device without the use of the provisions of this rule. CBP has
conducted a study of importers to determine how many are small entities
and has concluded that the vast majority (about 88 percent) of
importers are small entities.\6\ Therefore, CBP believes this rule may
affect a substantial number of small entities.
---------------------------------------------------------------------------
\6\ See ``CBP Analysis of Small Importers,'' November 2018.
Available in the docket of this rulemaking.
---------------------------------------------------------------------------
Although the proposed rule, if adopted, may affect a substantial
number of small entities, CBP believes the economic impact would not be
significant. As described in the Executive Orders 12866, 13563, and
13771 section of this document, CBP estimates that it takes an importer
two hours to provide proof of the admissibility of an import to CBP.
CBP estimates the average wage of an importer is $29.76 per hour. Thus,
CBP estimates it will cost a small entity $59.52 to prove the
admissibility of its import with this rule. CBP does not believe $59.52
constitutes a significant economic impact.
CBP recognizes that repeated inquiries into the admissibility of an
importer's imports could eventually rise to the level of a significant
economic impact. However, it is unlikely that importers will be
repeatedly required to prove the admissibility of their imports, as
previously mentioned. Additionally, CBP does not anticipate law-abiding
importers to be subject to the provisions in this rule on a repeated
basis. Once CBP has determined the admissibility of an importation, it
will record that information in the system so it can be viewed by CBP
import specialists on future importations and successful previous
imporations are a favorable factor in the importation's risk profile.
Further, CBP notes that providing this information to CBP is optional
on the part of the importer. Therefore, CBP believes there will not be
a significant economic impact on small entities.
Accordingly, although this rule may have an effect on a substantial
number of small entities, as discussed above, CBP believes that an
estimated cost of $59.52 to an importer does not constitute a
significant economic impact. Thus, CBP certifies this regulation would
not have a significant economic impact on a substantial number of small
entities.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507), the collections of information for this document are included in
an existing collection for Notices of Detention (OMB control number
1651-0073). An agency may not conduct, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number assigned by OMB. The burden
hours related to the Notice of Detention for OMB control number 1651-
0073 are as follows:
Number of Respondents: 1,695.
Number of Responses: 1.
Time per Response: 2 hours.
Total Annual Burden Hours: 3,390.
Because CBP estimates that the availability of the procedures in
this proposed rule will increase the number of Notices of Detention
issued for IPR violations, there is an increase in burden hours under
this collection with this proposed rule.
Signing Authority
This rulemaking is being issued in accordance with 19 CFR
0.1(a)(1), pertaining to the authority of the Secretary of the Treasury
(or that of his or her delegate) to approve regulations concerning
copyright enforcement.
List of Subjects
19 CFR Part 113
Bonds, Customs duties and inspection, Imports, Surety bonds.
19 CFR Part 133
Bonds, Circumvention devices, Copy or simulating trademarks,
Copyrights, Counterfeit goods, Customs duties and inspection, Demand
for redelivery, Detentions, Disclosure, Labeling, Liquidated damages,
Piratical copies, Phonorecords, Recordation, Restricted merchandise,
Seizures and forfeitures, Trademarks, Trade names.
19 CFR Part 148
Copyright, Customs duties and inspection, Trademarks.
19 CFR Part 151
Customs duties and inspection, Examination, Imports, Penalties,
Reporting and recordkeeping requirements, Sampling and testing.
19 CFR Part 177
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements.
Proposed Amendments to the CBP Regulations
For the reasons stated above in the preamble, CBP proposes to amend
19 CFR parts 113, 133, 148, 151 and 177 as follows:
PART 113--CBP BONDS
0
1. The general authority citation for part 113 continues to read as
follows:
Authority: 19 U.S.C. 66, 1623, 1624.
* * * * *
0
2. Section 113.42 is revised to read as follows:
Sec. 113.42 Time period for production of documents.
Except when another period is fixed by law or regulations, any
document for the production of which a bond or stipulation is given
must be delivered within 120 days from the date of notice from CBP
requesting such document. If the period ends on a Saturday, Sunday, or
holiday, delivery on the next business day will be accepted as timely.
0
3. Section 113.70 is revised to read as follows:
Sec. 113.70 Bond conditions for owners of recorded marks or recorded
copyrights to obtain samples from CBP relating to importation of
merchandise suspected of infringing recorded marks or recorded
copyrights, or circumventing copyright protection measures.
Prior to obtaining samples of imported merchandise pursuant to
Sec. Sec. 133.21, 133.25, 133.42, or 133.47 of this chapter, for
suspected infringement of a recorded mark or recorded copyright, or
suspected circumvention of a protection measure safeguarding a recorded
copyright, the owner of the recorded mark or the recorded copyright
must furnish to CBP a single transaction bond in the amount specified
by CBP containing the conditions listed in this section.
Bond Conditions for Owners of Recorded Marks or Recorded Copyrights To
Obtain Samples From CBP Relating to Importation of Merchandise
Suspected of Infringing Such Recorded Marks or Recorded Copyrights, or
Circumventing Copyright Protection Measures
(a) Agreement to use sample for limited purpose of assisting CBP.
If CBP provides to an owner of a recorded mark or a recorded copyright
a sample of imported merchandise suspected of infringing the recorded
mark or copyright, or suspected of circumventing a copyright protection
measure, including samples provided pursuant to Sec. Sec. 133.21,
133.25, 133.42, or
[[Page 55259]]
133.47 of this chapter, the obligors (principal and surety) agree that
such samples may only be used for the limited purpose of providing
assistance to CBP in enforcing intellectual property rights.
(b) Agreement to indemnify--(1) Improper use of sample. If the
sample identified in paragraph (a) of this section is used by the owner
of the recorded mark or the recorded copyright for any purpose other
than to provide assistance to CBP in enforcing intellectual property
rights, the obligors (principal and surety) agree to indemnify the
importer or owner of the imported merchandise, in the amount specified
by CBP, against any loss or damage resulting from the improper use.
(2) Physical loss, damage, or destruction of disclosed sample. The
owner of a recorded mark or a recorded copyright must return any sample
identified in paragraph (a) of this section upon demand by CBP or at
the conclusion of any examination, testing, or similar procedure
performed on the sample. If the sample identified in paragraph (a) of
this section is lost, damaged, or destroyed as a result of CBP's
furnishing it to such owner, the obligors (principal and surety) agree
to indemnify the importer or owner of the imported merchandise, in the
amount specified by CBP, against any resulting loss or damage.
PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS
0
4. The general authority citation for part 133 is revised to read as
follows, the specific authority for Sec. Sec. 133.21 to 133.25 is
removed, and a specific authority citation for Sec. 133.47 is added to
read as follows:
Authority: 15 U.S.C. 1124, 1125, 1127; 17 U.S.C. 101, 104, 106,
601, 602, 603; 18 U.S.C. 1905; 19 U.S.C. 66, 1202, 1499, 1526,
1595a, 1623, 1624, 1628a; 31 U.S.C. 9701.
Section 133.47 also issued under 17 U.S.C. 1201.
* * * * *
Sec. 133.0 Scope.
0
5. In Sec. 133.0, revise the last sentence to read as follows:
* * * It also sets forth the procedures for the disposition,
including release to the importer in appropriate circumstances, of
articles bearing prohibited marks or names, piratical articles, and
prohibited circumvention devices, as well as the disclosure of
information concerning such articles when such disclosure would not
compromise an ongoing law enforcement investigation or national
security.
0
6. Amend Sec. 133.21 by:
0
a. Removing the words ``owner of the mark'' wherever they appear and
adding in their place the words ``owner of the recorded mark'';
0
b. Revising paragraphs (b)(2)(ii) and (b)(3) and the second sentence of
paragraph (b)(4) introductory text;
0
c. Removing the word ``mark'' and adding in its place the word
``markings'' in the second sentence of paragraph (b)(5);
0
d. Revising the third sentence of paragraph (b)(5) and the first
sentence of paragraph (c)(2) and paragraph (f).
The revisions read as follows:
Sec. 133.21 Articles suspected of bearing counterfeit marks.
* * * * *
(b) * * *
(2) * * *
(ii) Failure of importer to respond or insufficient response to
notice. Where the importer does not provide information within the
seven business day response period, or the information is insufficient
for CBP to determine that the merchandise does not bear a counterfeit
mark, CBP will proceed with the disclosure of information as described
in paragraph (b)(3) of this section to the owner of the recorded mark
if CBP concludes that the disclosure would assist CBP in its
determination, and provided that the disclosure would not compromise an
ongoing law enforcement investigation or national security. CBP will
notify the importer in case of any such disclosure.
(3) Disclosure to owner of the recorded mark of information
appearing on detained merchandise and/or its retail packaging,
including unredacted photographs, images or samples. CBP will disclose
information appearing on the merchandise and/or its retail packaging
(including labels) and images (including photographs) of the
merchandise and/or its retail packaging in its condition as presented
for examination (i.e., an unredacted condition) if CBP concludes that
the disclosure of information to the owner of the mark as described in
paragraph (b)(2)(ii) of this section would assist CBP in its
determination, and provided that disclosure would not compromise an
ongoing law enforcement investigation or national security. CBP may
also provide a sample of the merchandise and/or its retail packaging in
its condition as presented for examination to the owner of the recorded
mark. The release of a sample will be in accordance with, and subject
to, the bond and return requirements of paragraph (c) of this section.
The disclosure may include any serial numbers, dates of manufacture,
lot codes, batch numbers, universal product codes, or other identifying
markings appearing on the merchandise or its retail packaging
(including labels), in alphanumeric or other formats.
(4) * * * If the information is unavailable at the time the notice
of detention is issued, CBP may release the information after issuance
of the notice of detention. * * *
* * * * *
(5) * * * CBP may release a sample under this paragraph when the
owner of the recorded mark furnishes to CBP a bond in an amount
specified by CBP and containing the conditions set forth in Sec.
113.70 of this chapter. * * *
* * * * *
(c) * * *
(2) * * * CBP may release a sample under paragraphs (b)(2)(ii) and
(3) of this section when the owner of the recorded mark furnishes to
CBP a bond in an amount specified by CBP and containing the conditions
set forth in Sec. 113.70 of this chapter. * * *
* * * * *
(f) Disclosure to owner of the recorded mark, following seizure, of
unredacted photographs, images, and samples. At any time following a
seizure of merchandise bearing a counterfeit mark under this section,
and upon receipt of a proper request from the owner of the recorded
mark, CBP may provide, if available, photographs, images, or a sample
of the seized merchandise and its retail packaging, in its condition as
presented for examination, to the owner of the recorded mark. CBP may
release a sample under this paragraph when the owner of the recorded
mark furnishes to CBP a bond in an amount specified by CBP and
containing the conditions set forth in Sec. 113.70 of this chapter.
CBP may demand the return of the sample at any time. The owner of the
recorded mark must return the sample to CBP upon demand or at the
conclusion of the examination, testing, or other use. In the event that
the sample is damaged, destroyed, or lost while in the possession of
the owner of the recorded mark, the owner must, in lieu of return of
the sample, certify to CBP that: ``The sample described as [insert
description] and provided pursuant to 19 CFR 133.21(f) was (damaged/
destroyed/lost) during examination, testing, or other use.''
* * * * *
Sec. 133.25 [Amended]
0
7. Section 133.25 is amended:
0
a. By removing the word ``Customs'' wherever it appears, and in its
place adding the word ``CBP'';
[[Page 55260]]
0
b. In paragraph (b) by removing the words ``owner of the trademark''
wherever it appears, and adding in their place the words ``owner of the
recorded mark''; and
0
c. In paragraph (c):
0
i. By removing the words ``trademark or trade name owner'' and adding
in their place the words ``owner of the recorded mark or trade name''
in the paragraph heading;
0
ii. By removing the words ``owner of the trademark'' and adding in
their place ``owner of the recorded mark'' in the first sentence;
0
iii. By revising the second sentence; and
0
iv. By removing the words ``trademark or trade name owner'' and adding
in their place the words ``owner of the recorded mark or trade name''
in the fifth sentence.
The revision reads as follows:
Sec. 133.25 Procedure on detention of articles subject to
restriction.
* * * * *
(c) * * * CBP may release a sample under this paragraph when the
owner of the recorded mark or trade name furnishes to CBP a bond in an
amount specified by CBP and containing the conditions set forth in
Sec. 113.70 of this chapter. * * *
* * * * *
0
8. Section 133.42 is revised to read as follows:
Sec. 133.42 Piratical articles; Unlawful copies or phonorecords of
recorded copyrighted works.
(a) Definition. A ``piratical article,'' for purposes of this part,
is an unlawfully made (without the authorization of the copyright
owner) copy or phonorecord of a recorded copyrighted work, importation
of which is prohibited by the Copyright Act of 1976, as amended.
(b) Detention, notice, and disclosure of information--(1) Detention
period. CBP may detain any article of domestic or foreign manufacture
imported into the United States that is suspected of constituting a
piratical article in violation of a copyright recorded with CBP. The
detention will be for a period of up to 30 days from the date on which
the merchandise is presented for examination. In accordance with 19
U.S.C. 1499(c), if, after the detention period, the article is not
released, the article will be deemed excluded for purposes of 19 U.S.C.
1514(a)(4).
(2) Notice of detention to importer and disclosure to owner of the
recorded copyrighted work--(i) Notice and seven business day response
period. Within five business days from the date of a decision to detain
suspect merchandise, CBP will notify the importer in writing of the
detention as set forth in Sec. 151.16(c) of this chapter and 19 U.S.C.
1499. CBP will also inform the importer that for purposes of assisting
CBP in determining whether the detained merchandise is a piratical
article:
(A) CBP may have previously disclosed to the owner of the recorded
copyright, prior to issuance of the notice of detention, limited
importation information concerning the detained merchandise, as
described in paragraph (b)(4) of this section, and, in any event, such
information may be released to the owner of the recorded copyright, if
available, no later than the date of issuance of the notice of
detention; and
(B) CBP may disclose to the owner of the recorded copyright
information that appears on the detained merchandise and/or its retail
packaging, including unredacted photographs, images, or samples, as
described in paragraph (b)(3) of this section, unless the importer
provides information within seven business days of the notification
establishing that the detained merchandise is not piratical.
(ii) Failure of importer to respond or insufficient response to
notice. Where the importer does not provide information within the
seven business day response period, or the information provided is
insufficient for CBP to determine that the merchandise is not
piratical, CBP will proceed with the disclosure of information as
described in paragraph (b)(3) of this section to the owner of the
recorded copyright, if CBP concludes that the disclosure would assist
CBP in its determination, and provided that disclosure would not
compromise an ongoing law enforcement investigation or national
security. CBP will notify the importer in case of any such disclosure.
(3) Disclosure to owner of the recorded copyright of information
appearing on detained merchandise and/or its retail packaging,
including unredacted photographs, images, or samples. CBP will disclose
information appearing on the merchandise and/or its retail packaging
(including labels), and images (including photographs) of the
merchandise and/or its retail packaging in its condition as presented
for examination (i.e., an unredacted condition) if CBP concludes that
the disclosure of information to the owner of the recorded copyright as
described in paragraph (b)(2)(ii) of this section would assist CBP in
its determination, and provided that disclosure would not compromise an
ongoing law enforcement investigation or national security. CBP may
also provide a sample of the merchandise and/or its retail packaging in
its condition as presented for examination to the owner of the recorded
copyright. The release of a sample will be in accordance with, and
subject to, the bond and return requirements of paragraph (c) of this
section. The disclosure may include any serial numbers, dates of
manufacture, lot codes, batch numbers, universal product codes, or
other identifying markings appearing on the merchandise or its retail
packaging (including labels), in alphanumeric or other formats.
(4) Disclosure to owner of recorded copyright of limited
importation information. From the time merchandise is presented for
examination, CBP may disclose to the owner of the recorded copyright
limited importation information to obtain assistance in determining
whether an imported article is a piratical article. If the information
is unavailable at the time the notice of detention is issued, CBP may
release the information after issuance of the notice of detention. The
limited importation information CBP may disclose to the owner of the
recorded copyright consists of:
(i) The date of importation;
(ii) The port of entry;
(iii) The description of the merchandise, for merchandise not yet
detained, from the paper or electronic equivalent of the entry (as
defined in Sec. 142.3(a)(1) or (b) of this chapter), the CBP Form
7512, cargo manifest, advance electronic information or other entry
document as appropriate, or, for detained merchandise, from the notice
of detention;
(iv) The quantity, for merchandise not yet detained, as declared on
the paper or electronic equivalent of the entry (as defined in Sec.
142.3(a)(1) or (b) of this chapter), the CBP Form 7512, cargo manifest,
advance electronic information, or other entry document as appropriate,
or, for detained merchandise, from the notice of detention; and
(v) The country of origin of the merchandise.
(5) Disclosure to owner of recorded copyright of redacted
photographs, images and samples. Notwithstanding the notice and seven
business day response procedure of paragraph (b)(2) of this section,
CBP may, in order to obtain assistance in determining whether an
imported article is a piratical article and at any time after
presentation of the merchandise for examination, provide to the owner
of the recorded copyright photographs, images, or a sample of the
suspect merchandise or its retail packaging (including labels),
provided that identifying information has been
[[Page 55261]]
removed, obliterated, or otherwise obscured. Identifying information
includes, but is not limited to, serial numbers, dates of manufacture,
lot codes, batch numbers, universal product codes, the name or address
of the manufacturer, exporter, or importer of the merchandise, or any
markings that could reveal the name or address of the manufacturer,
exporter, or importer of the merchandise, in alphanumeric or other
formats. CBP may release a sample under this paragraph when the owner
of the recorded copyright furnishes to CBP a bond in an amount
specified by CBP and containing the conditions set forth in Sec.
113.70 of this chapter. CBP may demand the return of the sample at any
time. The owner of the recorded copyright must return the sample to CBP
upon demand or at the conclusion of any examination, testing, or
similar procedure performed on the sample. In the event that the sample
is damaged, destroyed, or lost while in the possession of the owner of
the recorded copyright, the owner must, in lieu of return of the
sample, certify to CBP that: ``The sample described as [insert
description] and provided pursuant to 19 CFR 133.42(b)(5) was (damaged/
destroyed/lost) during examination, testing, or other use.''
(c) Conditions of disclosure to owner of recorded copyright of
information appearing on detained merchandise and/or its retail
packaging, including unredacted photographs, images and samples--(1)
Disclosure for limited purpose of assisting CBP in piratical
merchandise determinations. In accordance with paragraphs (b)(2)(ii)
and (b)(3) of this section, when CBP discloses information to the owner
of the recorded copyright prior to seizure, CBP will notify the owner
of the recorded copyright that some or all of the information being
released may be subject to the protections of the Trade Secrets Act,
and that CBP is only disclosing the information to the owner of the
recorded copyright for the purpose of assisting CBP in determining
whether the merchandise is a piratical article.
(2) Bond. CBP may release a sample under paragraphs (b)(2)(ii) and
(3) of this section when the owner of the recorded copyright furnishes
to CBP a bond in an amount specified by CBP and containing the
conditions set forth in Sec. 113.70 of this chapter. CBP may demand
the return of the sample at any time. The owner of the recorded
copyright must return the sample to CBP upon demand or at the
conclusion of any examination, testing, or similar procedure performed
on the sample. In the event that the sample is damaged, destroyed, or
lost while in the possession of the owner of the recorded copyright,
the owner must, in lieu of return of the sample, certify to CBP that:
``The sample described as [insert description] and provided pursuant to
19 CFR 133.42(c) was (damaged/destroyed/lost) during examination,
testing, or other use.''
(d) Disclosure to importer of unredacted photographs, images, and
samples. CBP will disclose to the importer unredacted photographs,
images, or an unredacted sample of imported merchandise suspected of
being a piratical article at any time after the merchandise is
presented to CBP for examination. CBP may demand the return of the
sample at any time. The importer must return the sample to CBP upon
demand or at the conclusion of any examination, testing, or similar
procedure performed on the sample. In the event that the sample is
damaged, destroyed, or lost while in the possession of the importer,
the importer must, in lieu of return of the sample, certify to CBP
that: ``The sample described as [insert description] and provided
pursuant to 19 CFR 133.42(d) was (damaged/destroyed/lost) during
examination, testing, or other use.''
(e) Seizure and disclosure to owner of the recorded copyright of
comprehensive importation information. Upon a determination by CBP,
made any time after the merchandise has been presented for examination,
that an article of domestic or foreign manufacture imported into the
United States is a piratical article, CBP will seize such merchandise
and, in the absence of the written consent of the owner of the recorded
copyright (see paragraph (g) of this section), forfeit the seized
merchandise in accordance with the customs laws. When merchandise is
seized under this section, CBP will disclose to the owner of the
recorded copyright the following comprehensive importation information,
if available, within 30 business days from the date of the notice of
the seizure:
(1) The date of importation;
(2) The port of entry;
(3) The description of the merchandise from the notice of seizure;
(4) The quantity as set forth in the notice of seizure;
(5) The country of origin of the merchandise;
(6) The name and address of the manufacturer;
(7) The name and address of the exporter; and
(8) The name and address of the importer.
(f) Disclosure to owner of recorded copyright, following seizure,
of unredacted photographs, images, and samples. At any time following a
seizure of a piratical article under this section, and upon receipt of
a proper request from the owner of the recorded copyright, CBP may
provide, if available, photographs, images, or a sample of the seized
merchandise and its retail packaging, in its condition as presented for
examination, to the owner of the recorded copyright. CBP may release a
sample under this paragraph when the owner of the recorded copyright
furnishes to CBP a bond in the amount specified by CBP and containing
the conditions set forth in Sec. 113.70 of this chapter. CBP may
demand the return of the sample at any time. The owner of the recorded
copyright must return the sample to CBP upon demand or at the
conclusion of the examination, testing, or other use. In the event that
the sample is damaged, destroyed, or lost while in the possession of
the owner of the recorded copyright, the owner must, in lieu of return
of the sample, certify to CBP that: ``The sample described as [insert
description] and provided pursuant to 19 CFR 133.42(f) was (damaged/
destroyed/lost) during examination, testing, or other use.''
(g) Consent of the owner of the recorded copyright; failure to make
appropriate disposition. The owner of the recorded copyright, within
thirty days from notification of seizure, may provide written consent
to the importer allowing the importation of the seized merchandise in
its condition as imported or its exportation, entry after obliteration
of the recorded copyright, or other appropriate disposition. Otherwise,
the merchandise will be disposed of in accordance with Sec. 133.52,
subject to the importer's right to petition for relief from forfeiture
under the provisions of part 171 of this chapter.
Sec. Sec. 133.43 and 133.44 [Removed and Reserved]
0
9. Sections 133.43 and 133.44 are removed and reserved.
0
10. Redesignate subpart F as subpart G and add new subpart F,
consisting of Sec. Sec. 133.47 and 133.48, to read as follows:
Subpart F--Enforcement of the Prohibition on Importation of
Merchandise Capable of Circumventing Technological Measures for
Protection of Copyright
Sec. 133.47 Articles suspected of violating the Digital Millennium
Copyright Act
(a) Definitions--(1) Copyright protection measure. A technological
measure that effectively controls access
[[Page 55262]]
to a copyrighted work for which the copyright has been recorded with
CBP.
(2) Articles that violate the DMCA. Articles that violate the
importation prohibitions of the Digital Millennium Copyright Act
(DMCA), 17 U.S.C. 1201, consist of products, devices, components, or
parts thereof primarily designed or produced for the purpose of
circumventing a copyright protection measure, or which have only a
limited commercially significant purpose or use other than such
circumvention, or which are knowingly marketed by the manufacturer,
importer, consignee, or other trafficker in such articles, or another
acting in concert with the manufacturer importer, consignee, or
trafficker for use in such circumvention.
(3) Eligible person. The owner of a recorded copyright, who employs
a copyright protection measure that may have been circumvented or
attempted to be circumvented by articles that violate the importation
prohibitions of the DMCA.
(4) Injured person. The owner of a recorded copyright, who employs
a copyright protection measure that has been circumvented or attempted
to be circumvented by articles seized for violation of the importation
prohibitions of the DMCA, and who has successfully applied to CBP for
DMCA protections pursuant to paragraph (b)(2)(iii) of this section.
(b) Detention, notice, and disclosure of information--(1) Detention
period. CBP may detain any article of domestic or foreign manufacture
imported into the United States that it suspects is in violation of the
DMCA, as described in paragraph (a)(1) of this section. The detention
will be for a period of up to 30 days from the date on which the
merchandise is presented for examination. In accordance with 19 U.S.C.
1499(c), if, after the detention period, the article is not released,
the article will be deemed excluded for the purposes of 19 U.S.C.
1514(a)(4).
(2) Notice of detention to importer and disclosure to eligible
persons--(i) Notice and seven business day response period. Within five
business days from the date of a decision to detain suspect
merchandise, CBP will notify the importer in writing of the detention
as set forth in Sec. 151.16(c) of this chapter and 19 U.S.C. 1499. CBP
will also inform the importer that for purposes of assisting CBP in
determining whether the detained merchandise violates the DMCA:
(A) CBP may have previously disclosed to the eligible person, prior
to issuance of the notice of detention, limited importation information
concerning the detained merchandise, as described in paragraph (b)(4)
of this section, and, in any event, such information may be released to
the eligible person, if available, no later than the date of issuance
of the notice of detention; and
(B) CBP may disclose to the eligible person information that
appears on the detained merchandise and/or its retail packaging,
including unredacted photographs, images, or samples, as described in
paragraph (b)(3) of this section, unless the importer provides
information within seven business days of the notification establishing
that the detained merchandise does not violate the DMCA.
(ii) Failure of importer to respond or insufficient response to
notice. Where the importer does not provide information within the
seven business day response period, or the information provided is
insufficient for CBP to determine that the merchandise does not violate
the DMCA, CBP will proceed with the disclosure of information, as
described in paragraph (b)(3) of this section, to the eligible person
if CBP concludes that the disclosure would assist CBP in its
determination, and provided that the disclosure would not compromise an
ongoing law enforcement investigation or national security. CBP will
notify the importer in case of any such disclosure.
(iii) Request for DMCA protections and establishment of a list of
persons approved for post-seizure disclosures. Eligible persons may
apply to receive post-seizure disclosures from CBP by attaching a
letter requesting such disclosures to an application to record
copyright. CBP will add those persons CBP approves for such disclosures
to a list that CBP will maintain. CBP will provide the post-seizure
disclosures described in this section to injured persons, as defined in
this part, appearing on the list. CBP will publish notice of the
establishment of the list in the Federal Register. After the list has
been established, CBP will publish notice of revisions to the list in
the Federal Register.
(3) Disclosure to eligible persons of information appearing on
detained merchandise and/or its retail packaging, including unredacted
photographs, images or samples. CBP will disclose information appearing
on the merchandise and/or its retail packaging (including labels) and
images (including photographs) of the merchandise and/or its retail
packaging in its condition as presented for examination (i.e., an
unredacted condition) if CBP concludes that the disclosure of
information to the eligible person as described in paragraph (b)(2)(ii)
of this section would assist CBP in its determination, and provided
that the disclosure would not compromise an ongoing law enforcement
investigation or national security. CBP may also provide a sample of
the merchandise and/or its retail packaging in its condition as
presented for examination to the eligible person. The release of a
sample will be in accordance with, and subject to, the bond and return
requirements of paragraph (c) of this section. The disclosure may
include any serial numbers, dates of manufacture, lot codes, batch
numbers, universal product codes, or other identifying markings
appearing on the merchandise or its retail packaging (including
labels), in alphanumeric or other formats.
(4) Disclosure to eligible person of limited importation
information. From the time merchandise is presented for examination,
CBP may disclose to the eligible person limited importation information
in order to obtain assistance in determining whether an imported
article violates the DMCA. If the information is unavailable at the
time the notice of detention is issued, CBP may release the information
after issuance of the notice of detention. The limited importation
information CBP may disclose to the eligible person consists of:
(i) The date of importation;
(ii) The port of entry;
(iii) The description of the merchandise, for merchandise not yet
detained, from the paper or electronic equivalent of the entry (as
defined in Sec. 142.3(a)(1) or (b) of this chapter), the CBP Form
7512, cargo manifest, advance electronic information or other entry
document as appropriate, or, for detained merchandise, from the notice
of detention;
(iv) The quantity, for merchandise not yet detained, as declared on
the paper or electronic equivalent of the entry (as defined in Sec.
142.3(a)(1) or (b) of this chapter), the CBP Form 7512, cargo manifest,
advance electronic information, or other entry document as appropriate,
or, for detained merchandise, from the notice of detention; and
(v) The country of origin of the merchandise.
(5) Disclosure to eligible person of redacted photographs, images
and samples. Notwithstanding the notice and seven business day response
procedure of paragraph (b)(2) of this section, CBP may, in order to
obtain assistance in determining whether an imported article violates
the DMCA and at any time after presentation of the merchandise for
examination, provide to the eligible person photographs,
[[Page 55263]]
images, or a sample of the suspect merchandise or its retail packaging
(including labels), provided that identifying information has been
removed, obliterated, or otherwise obscured. Identifying information
includes, but is not limited to, serial numbers, dates of manufacture,
lot codes, batch numbers, universal product codes, the name or address
of the manufacturer, exporter, or importer of the merchandise, or any
markings that could reveal the name or address of the manufacturer,
exporter, or importer of the merchandise, in alphanumeric or other
formats. CBP may release a sample under this paragraph when the
eligible person furnishes to CBP a bond in an amount specified by CBP
and containing the conditions set forth in Sec. 113.70 of this
chapter. CBP may demand the return of the sample at any time. The
eligible person must return the sample to CBP upon demand or at the
conclusion of any examination, testing, or similar procedure performed
on the sample. In the event that the sample is damaged, destroyed, or
lost while in the possession of the eligible person, the eligible
person must, in lieu of return of the sample, certify to CBP that:
``The sample described as [insert description] and provided pursuant to
19 CFR 133.47(b)(5) was (damaged/destroyed/lost) during examination,
testing, or other use.''
(c) Conditions of disclosure to eligible person of information
appearing on detained merchandise and/or its retail packaging,
including unredacted photographs, images and samples--(1) Disclosure
for limited purpose of assisting CBP in DMCA determinations. In
accordance with paragraphs (b)(2)(ii) and (3) of this section, when CBP
discloses information to an eligible person prior to seizure, CBP will
notify the eligible person that some or all of the information being
released may be subject to the protections of the Trade Secrets Act,
and that CBP is only disclosing the information to the eligible person
for the purpose of assisting CBP in determining whether the merchandise
violates the DMCA.
(2) Bond. CBP may release a sample under paragraphs (b)(2)(ii) and
(3) of this section when the eligible person furnishes to CBP a bond in
an amount specified by CBP and containing the conditions set forth in
Sec. 113.70 of this chapter. CBP may demand the return of the sample
at any time. The eligible person must return the sample to CBP upon
demand or at the conclusion of any examination, testing, or similar
procedure performed on the sample. In the event that the sample is
damaged, destroyed, or lost while in the possession of the eligible
person, the eligible person must, in lieu of return of the sample,
certify to CBP that: ``The sample described as [insert description] and
provided pursuant to 19 CFR 133.47(c) was (damaged/destroyed/lost)
during examination, testing, or other use.''
(d) Disclosure to importer of unredacted photographs, images or
samples. CBP will disclose to the importer unredacted photographs,
images, or an unredacted sample of imported merchandise suspected of
violating the DMCA at any time after the merchandise is presented to
CBP for examination. CBP may demand the return of the sample at any
time. The importer must return the sample to CBP upon demand or at the
conclusion of any examination, testing, or similar procedure performed
on the sample. In the event that the sample is damaged, destroyed, or
lost while in the possession of the importer, the importer must, in
lieu of return of the sample, certify to CBP that: ``The sample
described as [insert description] and provided pursuant to 19 CFR
133.47(d) was (damaged/destroyed/lost) during examination, testing, or
other use.''
(e) Seizure and disclosure to injured person of comprehensive
importation information. Upon a determination by CBP, made any time
after the merchandise has been presented for examination, that an
article of domestic or foreign manufacture imported into the United
States violates the DMCA as described in paragraph (a)(1) of this
section, CBP will seize such merchandise and, in the absence of written
consent of the injured person (see paragraph (g) of this section),
forfeit the seized merchandise in accordance with the customs laws.
When merchandise is seized under this section, CBP will disclose to the
injured person the following comprehensive importation information, if
available, within 30 business days from the date of the notice of the
seizure:
(1) The date of importation;
(2) The port of entry;
(3) The description of the merchandise from the notice of seizure;
(4) The quantity as set forth in the notice of seizure;
(5) The country of origin of the merchandise;
(6) The name and address of the manufacturer;
(7) The name and address of the exporter; and
(8) The name and address of the importer.
(f) Disclosure to injured person, following seizure, of unredacted
photographs, images and samples. At any time following a seizure of
DMCA-violative merchandise under this section, and upon receipt of a
proper request from the injured person, CBP may provide, if available,
photographs, images, or a sample of the seized merchandise and its
retail packaging or labels, in its condition as presented for
examination, to the injured person. CBP may release a sample under this
paragraph when the injured party furnishes to CBP a bond in an amount
specified by CBP and containing the conditions set forth in Sec.
113.70 of this chapter. CBP may demand the return of the sample at any
time. The injured person must return the sample to CBP upon demand or
at the conclusion of the examination, testing, or other use. In the
event that the sample is damaged, destroyed, or lost while in the
possession of the injured person, the injured person must, in lieu of
return of the sample, certify to CBP that: ``The sample described as
[insert description] and provided pursuant to 19 CFR 133.47(f) was
(damaged/destroyed/lost) during examination, testing, or other use.''
(g) Consent of the owner of the recorded copyright; failure to make
appropriate disposition. The owner of the recorded copyright, within
thirty days from notification of seizure, may provide written consent
to the importer allowing the importation of the seized merchandise in
its condition as imported or its exportation, entry after obliteration
of the recorded copyright, or other appropriate disposition. Otherwise,
the merchandise will be disposed of in accordance with Sec. 133.52 of
this part, subject to the importer's right to petition for relief from
forfeiture under the provisions of part 171 of this chapter.
Sec. 133.48 Demand for redelivery of released articles
If it is determined that articles which have been released from CBP
custody are subject to the prohibitions or restrictions of this
subpart, an authorized CBP official will promptly make demand for
redelivery of the articles in accordance with Sec. 141.113 of this
chapter. If the articles are not redelivered to CBP custody under the
terms of the bond on CBP Form 301, containing the bond conditions set
forth in Sec. 113.62 of this chapter, a claim for liquidated damages
will be made in accordance with Sec. 141.113 of this chapter.
Sec. 133.51 [Amended]
0
11. Section 133.51 is amended in paragraph (a) by:
[[Page 55264]]
0
a. Adding the words '' including the DMCA,'' after the words
``trademark or copyright laws,''; and
0
b. Removing the phrase ``Sec. 133.24 or Sec. 133.46.'' and adding in
its place the phrase ``Sec. Sec. 133.24, 133.46, or 133.48 of this
part.''
Sec. 133.52 [Amended]
0
12. Section 133.52 is amended in paragraph (b) by adding the phrase
``except as provided in Sec. Sec. 133.42(g) and 133.47(g) of this
part'' after the word ``destroyed''.
PART 148--PERSONAL DECLARATIONS AND EXEMPTIONS
0
13. The general authority citation for part 148 continues and new
specific authority is added for Sec. 148.55, to read as follows:
Authority: 19 U.S.C. 66, 1496, 1498, 1624. The provisions of
this part, except for subpart C, are also issued under 19 U.S.C.
1202 (General Note 3(i), Harmonized Tariff Schedule of the United
States).
* * * * *
Section 148.55 also issued under 17 U.S.C. 602 and 19 U.S.C.
1526;
* * * * *
0
14. Amend Sec. 148.55 by revising the section heading and paragraphs
(a) and (c) to read as follows:
Sec. 148.55 Exemption for articles embodying American trademark or
copyright.
(a) Application of Exemption. An exemption is provided for articles
bearing a counterfeit mark (as defined in Sec. 133.21(a) of this
chapter) or piratical articles (as defined in Sec. 133.42(a) of this
chapter) accompanying any person arriving in the United States which
would be prohibited entry under 19 U.S.C. 1526, 15 U.S.C. 1124, or 17
U.S.C. 602. The exemption may be applied either to those piratical
articles or to those articles bearing a counterfeit mark that are of
foreign manufacture and bear a recorded mark owned by a citizen of, or
a corporation or association created or organized within, the United
States, when imported for the arriving person's personal use in the
quantities provided in paragraph (c) of this section.
* * * * *
(c) Quantities. Generally, every 30 days, persons arriving in the
United States may apply the exemption to the following: one piratical
article of each type, or one article of each type bearing a counterfeit
mark, and/or one piratical article of each type that is also an article
bearing a counterfeit mark. The Commissioner shall determine if more
than one article may be entered and, with the approval of the Secretary
of the Treasury, publish in the Federal Register a list of types of
articles and the quantities of each entitled to the exemption. If the
owner of a recorded mark or recorded copyright allows importation of
more than one article normally prohibited entry under 19 U.S.C. 1526,
15 U.S.C. 1124, or 17 U.S.C. 602, the total of those articles
authorized by the owner may be entered without penalty.
PART 151--EXAMINATION, SAMPLING, AND TESTING OF MERCHANDISE
0
15. The general authority citation for part 151 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 3(i) and (j),
Harmonized Tariff Schedule of the United States (HTSUS), 1624;
* * * * *
0
16. Amend Sec. 151.16 by:
0
a. Revising paragraphs (a), (b), and (c);
0
b. Removing the word ``Customs'' wherever it appears and adding in its
place the term ``CBP'', and removing the word ``shall'' wherever it
appears and adding in its place the word ``will'' in paragraph (d);
0
c. Removing the word ``Customs'' and adding in its place the term
``CBP'' in paragraph (e);
0
d. Removing the word ``Customs'' wherever it appears and adding in its
place the term ``CBP'', and removing the word ``shall'' and adding in
its place the word ``will'' in paragraph (f);
0
e. Removing the word ``shall'' and adding in its place the word
``will'' in paragraph (g);
0
f. Removing the word ``Customs'' and adding in its place the term
``CBP'' in paragraph (h);
0
g. Removing the word ``Customs'' and adding in its place the term
``CBP'', and removing the word ``shall'' and adding in its place the
word ``will'' in paragraph (i); and
0
h. Removing the word ``Customs'' and adding in its place the term
``CBP'' in paragraph (j).
The revisions read as follows:
Sec. 151.16 Detention of merchandise.
(a) Exemptions from applicability. The provisions of this section
are not applicable to detentions effected by CBP on behalf of other
agencies of the U.S. Government in whom the determination of
admissibility is vested.
(b) Decision to detain or release. Within five business days from
the date on which merchandise is presented for CBP examination, CBP
will decide whether to release or detain merchandise. Merchandise that
is not released within the five business day period will be considered
to be detained merchandise under 19 U.S.C. 1499(c)(1). For purposes of
this section, merchandise will be considered to be presented for CBP
examination when it is in a condition to be viewed and examined by a
CBP 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 CBP examination for purposes of this
section. Except when merchandise is examined at the public stores, the
importer must pay all costs relating to the preparation and
transportation of merchandise for CBP examination.
(c) Notice of detention. If a decision to detain merchandise is
made, or the merchandise is not released within the five business day
period described in paragraph (b) of this section, CBP will issue a
notice to the importer or other party having an interest in such
merchandise within five business days from such decision or failure to
release. Issuance of a notice of detention is not to be construed as a
final determination as to admissibility of the merchandise. The notice
will be prepared by the CBP officer detaining the merchandise and will
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 CBP, may
accelerate the disposition of the detention.
* * * * *
PART 177--ADMINISTRATIVE RULINGS
0
17. The general authority citation for part 177 continues to read as
follows:
Authority: 5 U.S.C. 301, 19 U.S.C. 66, 1202 (General Note 3(i),
Harmonized Tariff Schedule of the United States), 1502, 1624, 1625.
* * * * *
Sec. 177.0 [Amended]
0
18. In Sec. 177.0 remove the words ``part 133 (relating to disputed
claims of
[[Page 55265]]
piratical copying of copyrighted matter),''.
Robert E. Perez,
Deputy Commissioner, U.S. Customs and Border Protection.
Approved: October 2, 2019.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2019-21980 Filed 10-15-19; 8:45 am]
BILLING CODE 9111-14-P