Disclosure of Information for Certain Intellectual Property Rights Enforced at the Border, 24375-24380 [2012-9762]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• U.S. Customs and Border Protection
• DEPARTMENT OF THE TREASURY

[Federal Register Volume 77, Number 79 (Tuesday, April 24, 2012)]
[Rules and Regulations]
[Pages 24375-24380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9762]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Parts 133 and 151

[USCBP-2012-0011; CBP Dec. 12-10]
RIN 1515-AD87


Disclosure of Information for Certain Intellectual Property 
Rights Enforced at the Border

AGENCIES: U.S. Customs and Border Protection, Department of Homeland 
Security; Department of the Treasury.

ACTION: Interim rule; solicitation of comments.

-----------------------------------------------------------------------

SUMMARY: This document amends, on an interim basis, the U.S. Customs 
and Border Protection (CBP) regulations pertaining to importations of 
merchandise bearing recorded trademarks or recorded trade names. The 
interim amendments, effective upon publication in the Federal Register, 
allow CBP, subject to limitations, to disclose to an intellectual 
property right holder information appearing on merchandise or its 
retail packaging that may comprise information otherwise protected by 
the Trade Secrets Act, for the purpose of assisting CBP in determining 
whether the merchandise bears a counterfeit mark. Such information will 
be provided to the right holder in the form of photographs or a sample 
of the goods and/or their retail packaging in their condition as 
presented to CBP for examination and alphanumeric codes appearing on 
the goods. The information will include, but not be limited to, serial 
numbers, universal product codes, and stock keeping unit (SKU) numbers 
appearing on the imported merchandise and its retail packaging, whether 
in alphanumeric or other formats. These changes provide a pre-seizure 
procedure for disclosing information about imported merchandise 
suspected of bearing a counterfeit mark for the limited purpose of 
obtaining the right holder's assistance in determining whether the mark 
is counterfeit or not.

DATES: Effective April 24, 2012; comments must be received on or before 
June 25, 2012.

ADDRESSES: You may submit comments, identified by docket number, by one 
of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments via docket number USCBP 
2012-0011.
     Mail: Trade and Commercial Regulations Branch, Office of 
International Trade, Regulations and Rulings, U.S. Customs and Border 
Protection, 799 9th Street NW. (Mint Annex), Washington, DC 20229-1179.
    Instructions: All submissions received must include the agency name 
and docket number for this interim rulemaking. All comments received 
will be posted without change to https://www.regulations.gov, including 
any personal information provided. For detailed instructions on 
submitting comments and additional information on the 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 https://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, 
Office of International Trade, Regulations and Rulings, U.S. Customs 
and Border Protection, 799 9th Street NW., 5th 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: Paul Pizzeck, Intellectual Property 
Rights Branch, Regulations and Rulings, Office of International Trade, 
(202) 325-0020.

SUPPLEMENTARY INFORMATION: 

Public Participation

    Interested persons are invited to participate in this rulemaking by

[[Page 24376]]

submitting written data, views, or arguments on all aspects of the 
interim rule. CBP also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this rule. 
If appropriate to a specific comment, the commenter should reference 
the specific portion of the rule, explain the reason for any 
recommended change, and include data, information, or authority that 
support such recommended change.

Background

Purpose of the Interim Amendments

    CBP is responsible for border enforcement of intellectual property 
rights laws and regulations. One of the primary purposes of CBP's 
efforts to interdict counterfeit imported goods is to protect the 
public from unsafe and substandard products, which, in some cases, can 
be a threat to public health and safety, and also a threat to the 
national security. In particular, counterfeit integrated circuits and 
electronic components can find their way into critical manufacturing, 
military, infrastructure, and consumer product applications. In fact, 
inquiries conducted by Congress and the Department of Defense (DoD) 
have revealed that counterfeit electronic components, including 
counterfeit integrated circuits, have entered military and government 
supply chains, posing a serious threat to our military and government 
personnel and infrastructure.
    Due to the development of sophisticated techniques of some 
counterfeiters and the highly technical nature of some imported goods, 
it has become increasingly difficult for CBP to determine whether some 
goods suspected of bearing counterfeit marks in fact bear counterfeit 
marks. The current regulation pertaining to goods bearing counterfeit 
marks does not provide a procedure for disclosing information to right 
holders to assist CBP in its efforts to identify goods bearing 
infringing marks, prior to CBP's making a determination to seize.
    In this document, CBP is making several changes to subpart C of 
part 133 of the CBP regulations (19 CFR part 133) regarding the 
detention of suspect merchandise and the disclosure of information to 
right holders during detention of goods bearing potentially counterfeit 
marks and after seizure of goods bearing counterfeit marks. These 
changes, made on an interim basis and effective on the date of their 
publication in the Federal Register, include a clarifying revision of 
the current regulation's definition of ``counterfeit trademark'' and an 
addition of a 30-day detention period relative to goods suspected of 
bearing counterfeit marks. These changes will enhance CBP's enforcement 
capability against increasingly sophisticated counterfeit products that 
threaten the public health and safety and national security.

The Trade Secrets Act and Disclosure Under the Current Regulation

    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 
(also referred to collectively as ``protected 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.'' Case law 
interpreting the statute states that the Act ``appears to cover 
practically any commercial or financial data collected by any Federal 
employee from any source'' and that the ``comprehensive catalogue of 
items'' listed in the Act ``accomplishes essentially the same thing as 
if it had simply referred to `all officially collected commercial 
information' or `all business and financial data received.' '' See CNA 
Fin. Corp. v. Donovan, 830 F.2d 1132, 1140 (D.C. Cir. 1987).
    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 protection afforded by the Trade Secrets Act, however, must be 
balanced against the important and legitimate interests of government. 
The Trade Secrets Act permits those covered by the Act to disclose 
confidential 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).

The National Defense Authorization Act for Fiscal Year 2012

    Section 818(g) of the National Defense Authorization Act for Fiscal 
Year 2012 (NDAA) (Pub. L. 112-81) provides:

    If United States Customs and Border Protection suspects a 
product of being imported in violation of section 42 of the Lanham 
Act, and subject to any applicable bonding requirements, the 
Secretary of the Treasury may share information appearing on, and 
unredacted samples of, products and their packaging and labels, or 
photographs of such products, packaging, and labels, with the 
rightholders of the trademarks suspected of being copied or 
simulated for purposes of determining whether the products are 
prohibited from importation pursuant to such section.

    The NDAA enhances CBP's capability to enforce laws protecting marks 
by authorizing the agency to disclose certain information to right 
holders to assist CBP officers in determining whether suspect 
merchandise bears counterfeit marks.

Further Statutory Analysis Concerning Disclosure of Commercial 
Information

    Under the NDAA, CBP is authorized by law to make certain 
disclosures. One reading of the language of the NDAA, however, is that 
disclosure is limited to trademarks and does not include other marks 
noted under the Lanham Act (certification, collective, and service 
marks). Moreover, some have suggested that the legislative history of 
the Act indicates that certain legislators intended that the exception 
to the Trade Secrets Act created by the NDAA is to apply only to 
military sales.
    Consequently, CBP, in publishing this interim rule, is exercising 
regulatory authority to remove any ambiguity about CBP's authority to 
disclose information with regard to certification, collective, and 
service marks, as well as trademarks, and to further clarify that the 
disclosure authority extends to all imports and not just those 
associated with military sales.
    As noted above, the Secretary of the Treasury (the Secretary) 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. Regarding CBP's statutory 
authority to disclose certain importation information to right holders, 
various provisions in titles 15 and 19 of the United States Code 
(U.S.C.) authorize

[[Page 24377]]

CBP to promulgate regulations to enforce prohibitions against the 
importation of merchandise that infringes intellectual property rights.
    Section 42 of the Lanham Act (15 U.S.C. 1124) prohibits the 
importation of merchandise bearing a mark which copies or simulates a 
registered mark. In order to aid CBP in enforcing this prohibition, 
section 42 provides for the recordation of registered marks under such 
regulations as the Secretary of the Treasury shall prescribe. Sections 
526(e) and 595a(c) of the Tariff Act of 1930, as amended (19 U.S.C. 
1526(e), and 19 U.S.C. 1595a(c)), prohibit the importation of 
merchandise bearing a counterfeit mark and the introduction or 
attempted introduction into the United States of merchandise or 
packaging in which, inter alia, trademark or trade name protection 
violations are involved, including, but not limited to violations of 
sections 1124, 1125 and 1127 of Title 15 (sections 42, 32 and 45 of the 
Lanham Act). Moreover, section 526(e) of the Tariff Act of 1930, as 
amended, (19 U.S.C. 1526(e)) requires CBP to notify the owner of the 
trademark when merchandise bearing a counterfeit mark within the 
meaning of section 1127 of Title 15 and imported in violation of 
section 1124 of Title 15 is seized. Section 624 of the Tariff Act of 
1930, as amended (19 U.S.C. 1624), authorizes the Secretary of the 
Treasury to promulgate regulations to carry out the provisions of the 
Tariff Act of 1930, as amended. Collectively, these statutes authorize 
the Secretary of the Treasury, in instances where identification of 
suspected violative merchandise requires the assistance of right 
holders for the specific and limited purpose of determining whether 
imported merchandise bears a counterfeit mark, to provide for the 
disclosure of certain information to right holders upon importation.
    The interim rule is intended to support the statutory enforcement 
scheme discussed above and to allow CBP officers, without violating the 
Trade Secrets Act, to disclose information that might reveal otherwise 
confidential commercial or financial information in order to assist CBP 
in identifying merchandise bearing counterfeit marks at the time of 
detention.

Notice Provision To Prevent Economic Harm to Legitimate Importers

    In addition, CBP is putting in place a procedure that provides the 
importer the opportunity to demonstrate to CBP, within seven (7) days 
(exclusive of weekends and holidays) of a notice of detention, that the 
article in question does not bear a counterfeit mark, before releasing 
information to the right holder. Only absent such a demonstration by 
the importer will information, images, or samples be shared with the 
right holder. This procedural safeguard is intended to achieve the 
policy goals of the NDAA in a manner consistent with maintaining the 
flow of information to the government, fostering competition, keeping 
prices low, and maintaining consumer choice.
    Information that is covered by the Trade Secrets Act and obtained 
from an importer, including the importer's name and place of business, 
manufacturer's identity, supply chain, and other confidential 
commercial or financial information, if disclosed, could provide 
insights into the importer's business operations, processes, style of 
work, and income, all inuring to the importer's competitive 
disadvantage. For example, product coding, such as serial numbers, and 
SKUs often incorporates information about where and when a product was 
manufactured, as well as other information that could allow one to 
identify information about the manufacture of the product. It is 
likewise possible that such information could directly or indirectly 
reveal the identity of wholesalers, exporters, or other parties in the 
importer's supply chain and the timing and pricing of the transactions 
involving those entities. Such confidential commercial or financial 
information, if not properly protected, could be used by competitors to 
an importer's economic disadvantage, potentially resulting in reduced 
competition and consumer choice with attendant increases in prices.

Interim Amendments Concerning Pre-Seizure Disclosure of Information

    This document is amending the CBP regulations to allow CBP to 
provide right holders, for the limited purpose of assisting CBP in 
making infringement determinations, with any information appearing on 
merchandise and/or its retail packaging, or a sample of the merchandise 
including its retail packaging, when CBP reasonably suspects that such 
merchandise and/or packaging may bear a counterfeit mark (see Sec.  
133.21(b)(1) of this rule). This disclosure of information, which 
includes images (photographs) or samples, as appropriate, could 
potentially disclose confidential commercial or financial information 
otherwise protected under the Trade Secrets Act. The interim regulation 
also includes a procedure that allows an importer, prior to release of 
the information, the opportunity to establish, within seven (7) days 
(excluding weekends and holidays) of a notice of detention, that the 
marks are not counterfeit. Only absent such a demonstration by the 
importer will the disclosure be made to the right holder.
    In conjunction with the interim rule's procedure outlined above, 
CBP is adding to the regulation a 30-day period (and an extension, if 
requested by the importer for good cause) to commence upon presentation 
of the goods for examination, within which a determination with respect 
to admissibility will be made (see Sec.  133.21(b) of this rule). Under 
the interim regulation, CBP will issue the notice of detention within 
five days of its detention decision, starting the seven-day period 
within which the importer may demonstrate that the goods do not bear a 
counterfeit mark. Only if such demonstration is untimely or 
insufficient will CBP release information to the right holder.
    In brief summation, this change to the regulations concerning 
counterfeit marks, in principal part, allows CBP, prior to seizure, to 
release to right holders information appearing on goods (and/or their 
retail packaging), and on images and samples, that are not redacted, 
i.e., images showing the merchandise (and/or its retail packaging) in 
its condition as presented for examination and samples (and/or its 
retail packaging) in their condition as so presented. This allows the 
right holder to assist CBP in its enforcement effort to prevent the 
entry of goods bearing counterfeit marks. However, in certain 
circumstances, DHS criminal investigators may provide right holders 
such information or samples without notifying the importer, for example 
to obtain from the right holder evidence that will assist the 
investigators in demonstrating probable cause when they seek a judicial 
order in the course of a criminal or national security investigation.

Other Interim Amendments To Clarify and Maintain Consistency With the 
Current Regulations

    As mentioned previously, CBP is also making a clarifying amendment 
to the definition of ``counterfeit trademark.'' The amended definition 
of ``counterfeit mark'' uses the term ``mark'' instead of ``trademark'' 
(see Sec.  133.21(a) of this rule).
    In addition, CBP is amending the regulations pertaining to goods 
bearing copying or simulating marks and restricted gray market goods to 
correct an inconsistency in the regulatory scheme for such goods (19 
CFR 133.22(f)

[[Page 24378]]

and 133.23(f), respectively). The 30-day detention period for these 
goods is set forth in Sec.  133.25 of the CBP regulations, and this 
procedure provides for extension of the detention period applicable to 
these goods upon good cause shown. Therefore, CBP is removing from 
Sec. Sec.  133.22(f) and 133.23(f) inconsistent language that appears 
to restrict the respective detention periods to only 30 days.
    Lastly, CBP is amending the provisions of 19 CFR 151.16(a) 
regarding detention of merchandise to make them consistent with the 
interim regulations in this rulemaking. The regulations pertaining to 
detention of merchandise exclude from their applicability imported 
articles suspected of being infringing copies or phonorecords, imported 
goods bearing marks which are confusingly similar to recorded 
trademarks, and imported restricted gray market merchandise. The 
interim amendment to section 151.16(a) excludes imports of goods 
suspected of bearing counterfeit marks from the applicability of the 
regulations pertaining to detention of merchandise.

Inapplicability of Notice and Delayed Effective Date Requirements

    As explained previously in this document (see ``Purpose of the 
Interim Amendments'' subsection in the Background section), CBP is 
responsible for enforcement of intellectual property rights laws and 
regulations at the border. An important goal of CBP efforts to 
interdict counterfeit imported goods is to protect the public from 
unsafe and substandard counterfeit products. In addition, counterfeit 
goods present a threat to national security and our critical 
infrastructure. Counterfeit integrated circuits and electronic 
components can be used in critical manufacturing, military, 
infrastructure, and consumer product applications. Inquiries conducted 
by Congress and the DoD have revealed that counterfeit electronic 
components, including counterfeit integrated circuits, have entered 
military and government supply chains, posing a serious threat to our 
military and government personnel and infrastructure. Moreover, 
interdiction of counterfeit goods has been made increasingly difficult 
due to the development of sophisticated techniques used by some 
counterfeiters and the highly technical nature of some imported goods.
    Because this rule addresses an immediate need to address without 
delay vulnerabilities in our military and government procurement 
processes, as well as an immediate need to interdict goods bearing 
counterfeit marks that pose health and safety risks to the American 
public, CBP has determined that it would be contrary to the public 
interest to delay the effective date of this rule. Therefore, CBP has 
determined that in accordance with the sections 553(b)(B) and 553(c) of 
the Administrative Procedure Act (5 U.S.C 553), good cause exists to 
dispense with the prior comment requirement and delayed effective date 
requirement. Subsection 818(g) of the NDAA was effective upon 
enactment, but the authority it provides the Secretary is discretionary 
and not mandatory. Accordingly, although some may interpret the statute 
to allow the Secretary to exercise his discretionary authority without 
amending CBP's existing regulations, CBP believes that amending the 
existing, more restrictive regulations is consistent with the 
requirements of the Administrative Procedure Act and will eliminate any 
legal ambiguity. The interim regulations also promote transparency and 
provide an important opportunity to gather feedback and input from 
stakeholders regarding implementation of Sec.  818(g) of the NDAA.

Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 direct agencies to assess 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. 
This rule has been designated a ``significant regulatory action'' 
although not economically significant, under section 3(f) of Executive 
Order 12866. Accordingly, the rule has been reviewed by the Office of 
Management and Budget.

Regulatory Flexibility Act

    Because a notice of proposed rulemaking is not required under 
section 553(b)(3)(B) of the APA for the reasons described in the 
Inapplicability of Notice and Delayed Effective Date Requirements 
section of this document, the provisions of the Regulatory Flexibility 
Act, as amended (5 U.S.C. 601 et seq.), do not apply to this 
rulemaking. Accordingly, this interim rule is not subject to the 
regulatory analysis or other requirements of 5 U.S.C. 603 and 604.

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 
trademark enforcement.

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 Notices of Detention for OMB 
control number 1651-0073 are as follows:
    Number of Respondents: 1,350.
    Number of Responses: 1,350.
    Time per Response: 2 hours.
    Total Annual Burden Hours: 2,700.
    There is no change in burden hours under this collection with this 
rule.

List of Subjects

19 CFR Part 133

    Copying or simulating trademarks, Copyrights, Counterfeit 
trademarks, Customs duties and inspection, Detentions, Reporting and 
recordkeeping requirements, Restricted merchandise, Seizures and 
forfeitures, Trademarks, Trade names.

19 CFR Part 151

    Customs duties and inspection, Examination, Imports, Penalties, 
Reporting and recordkeeping requirements, Sampling and testing.

Amendments to the CBP Regulations

    For the reasons stated above in the preamble, CBP is amending parts 
133 and 151 of title 19 of the Code of Federal Regulations (19 CFR 
parts 133 and 151) to read as follows:

PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS

0
1. The general authority citation for part 133 and the specific 
authority citation for Sec.  133.21 through 133.25 are revised, to read 
as follows:

    Authority:  15 U.S.C. 1124, 1125, 1127; 17 U.S.C. 101, 601, 602, 
603; 19 U.S.C. 66, 1202, 1499, 1526, 1624; 31 U.S.C. 9701;
* * * * *
    Sections 133.21 through 133.25 also issued under 18 U.S.C. 1905; 
Sec. 818(g), Pub. L. 112-81.
* * * * *

[[Page 24379]]


0
2. The heading for subpart C is revised to read as follows:

Subpart C--Importations Bearing Recorded Marks or Trade Names

0
3. Section 133.21 is revised to read as follows:


Sec.  133.21  Articles suspected of bearing counterfeit marks.

    (a) Counterfeit mark defined. A ``counterfeit mark'' is a spurious 
mark that is identical with, or substantially indistinguishable from, a 
mark registered on the Principal Register of the U.S. Patent and 
Trademark Office.
    (b) Detention. CBP may detain any article of domestic or foreign 
manufacture imported into the United States that bears a mark suspected 
of being a counterfeit version of a mark that is registered with the 
U.S. Patent and Trademark Office and is recorded with CBP pursuant to 
subpart A of this part. The detention will be for a period of up to 
thirty days from the date on which the merchandise is presented for 
examination. The 30-day time period may be extended for up to an 
additional thirty days for good cause shown by the importer. In 
accordance with 19 U.S.C. 1499, if after the detention period and any 
authorized extensions the article is not released the article will be 
deemed excluded for the purposes of 19 U.S.C. 1514(a)(4).
    (1) Notice to importer of detention and possible disclosure. Within 
five days (excluding weekends and holidays) from the date of a decision 
to detain, CBP will notify the importer in writing of the detention. 
The notice will inform the importer that a disclosure of information 
concerning the detained merchandise may be made to the owner of the 
mark to assist CBP in determining whether any marks are counterfeit, 
unless the importer presents information within seven days of the 
notification (excluding weekends and holidays) establishing to CBP's 
satisfaction that the detained merchandise does not bear a counterfeit 
mark. CBP may disclose information appearing on the merchandise and/or 
its retail packaging, images (including photographs) of the merchandise 
and/or its retail packaging in its condition as presented for 
examination, or a sample of the merchandise and/or its retail packaging 
in its condition as presented for examination. The release (disclosure) 
of a sample is subject to the bond and return requirements of paragraph 
(c) of this section. Where the importer does not timely provide 
information or the information provided is insufficient for CBP to 
determine that the merchandise does not bear a counterfeit mark, CBP 
may proceed with the disclosure to the owner of the mark, and will so 
notify the importer. Disclosure under this section may include any 
serial numbers, dates of manufacture, lot codes, batch numbers, 
universal product codes, or other identifying marks appearing on the 
merchandise or its retail packaging, in alphanumeric or other formats.
    (2) Notice to owner of the mark and disclosure of information. From 
the time merchandise is presented for examination until the time a 
notice of detention is issued, CBP may disclose to the owner of the 
mark any of the following information in order to obtain assistance in 
determining whether an imported article bears a counterfeit mark. Once 
a notice of detention is issued, CBP will disclose to the owner of the 
mark the following information, if available, within thirty days 
(excluding weekends and holidays) from the date of detention:
    (i) The date of importation;
    (ii) The port of entry;
    (iii) The description of the merchandise from the entry;
    (iv) The quantity involved; and
    (v) The country of origin of the merchandise.
    (3) Redacted images and samples made available to the owner of the 
mark. Notwithstanding the notice and seven-day response procedure of 
paragraph (b)(1) of this section, CBP may, at any time after 
presentation of the merchandise for examination, provide to the owner 
of the mark images or a sample of the detained merchandise or its 
retail packaging, 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 
mark that could reveal the name or address of the manufacturer, 
exporter, or importer of the merchandise, in alphanumeric or other 
formats. CBP will release to the owner of the mark a sample under this 
paragraph when the owner furnishes CBP a bond in the form and amount 
specified by the port director, conditioned to hold the United States, 
its officers and employees, and the importer or owner of the imported 
article harmless from any loss or damage to the sample resulting from 
the furnishing of a sample by CBP to the owner of the mark. CBP may 
demand the return of the sample at any time. The owner of the mark 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 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(b)(3) was (damaged/
destroyed/lost) during examination, testing, or other use.''
    (c) Unredacted samples made available to the owner of the mark 
prior to seizure. A sample of the imported merchandise may be released 
prior to seizure to the owner of the mark in accordance with paragraph 
(b)(1) of this section. CBP will release to the owner of the mark a 
sample under this paragraph when the owner furnishes CBP a bond in the 
form and amount specified by the port director, conditioned to hold the 
United States, its officers and employees, and the importer or owner of 
the imported article harmless from any loss or damage to the sample 
resulting from the furnishing of a sample by CBP to the owner of the 
mark. CBP may demand the return of the sample at any time. The owner of 
the mark 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 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(c) was (damaged/destroyed/lost) during examination, testing, or 
other use.''
    (d) Seizure. 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 bears a 
counterfeit mark, CBP will seize such merchandise and, in the absence 
of the written consent of the owner of the mark, 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 mark 
the following information, if available, within thirty days (excluding 
weekends and holidays) from the date of the notice of seizure:
    (1) The date of importation;
    (2) The port of entry;
    (3) The description of the merchandise from the entry;
    (4) The quantity involved;
    (5) The name and address of the manufacturer;

[[Page 24380]]

    (6) The country of origin of the merchandise;
    (7) The name and address of the exporter; and
    (8) The name and address of the importer.
    (e) Samples made available to the owner of the mark after seizure. 
At any time following a seizure of merchandise bearing a counterfeit 
mark under this section, CBP may provide a sample and its retail 
packaging, in its condition as presented for examination, to the owner 
of the mark for examination, testing, or other use in pursuit of a 
related private civil remedy for trademark infringement. To obtain a 
sample under this paragraph, the owner of the mark must furnish CBP a 
bond in the form and amount specified by the port director, conditioned 
to hold the United States, its officers and employees, and the importer 
or owner of the imported article harmless from any loss or damage to 
the sample resulting from the furnishing of a sample by CBP to the 
owner of the mark. CBP may demand the return of the sample at any time. 
The owner of the mark must return the sample to CBP upon demand or at 
the conclusion of the examination, testing, or other use in pursuit of 
a related private civil remedy for infringement. In the event that the 
sample is damaged, destroyed, or lost while in the possession of the 
owner of the 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(e) was (damaged/destroyed/lost) 
during examination, testing, or other use.''
    (f) Consent of the mark owner; failure to make appropriate 
disposition. The owner of the mark, 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 mark, 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.  133.22  [Amended]

0
4. Section 133.22(f), first sentence, is amended by removing the words 
``within the 30-day period of detention'' and adding in their place the 
words ``within the period of detention as provided in Sec.  133.25 of 
this subpart''.


Sec.  133.23  [Amended]

0
5. Section 133.23(f), first sentence, is amended by removing the words 
``within the 30-day period of detention'' and adding in their place the 
words ``within the period of detention as provided in Sec.  133.25 of 
this subpart''.


Sec.  133.26  [Amended]

0
6. Section 133.26 is amended by removing from the first sentence the 
words ``subject to the restrictions of Sec.  133.22 or Sec.  133.23 of 
this subpart'' and adding in their place the words ``subject to the 
restrictions of Sec.  133.21, Sec.  133.22 or Sec.  133.23 of this 
subpart''.

PART 151--EXAMINATION, SAMPLING AND TESTING OF MERCHANDISE

0
7. 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
8. Section 151.16(a) is revised to 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 and to detentions arising from possibly 
piratical copies (see part 133, subpart E, of this Chapter), imports of 
articles bearing counterfeit marks or suspected counterfeit marks, 
goods bearing marks which are confusingly similar to recorded 
trademarks, or restricted gray market merchandise (see part 133, 
subpart C, of this chapter.)
* * * * *

David V. Aguilar,
Acting Commissioner, U.S. Customs and Border Protection.
    Approved: April 18, 2012.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2012-9762 Filed 4-23-12; 8:45 am]
BILLING CODE 9111-14-P