Donations of Technology and Related Support Services To Enforce Intellectual Property Rights, 59511-59514 [2017-27065]
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Federal Register / Vol. 82, No. 240 / Friday, December 15, 2017 / Rules and Regulations
PART 1130—REQUIREMENTS FOR
CONSUMER REGISTRATION OF
DURABLE INFANT OR TODDLER
PRODUCTS
DEPARTMENT OF HOMELAND
SECURITY
3. The authority citation for part 1130
continues to read as follows:
DEPARTMENT OF THE TREASURY
U.S. Customs and Border Protection
■
19 CFR Part 133
Authority: 15 U.S.C. 2056a, 2065(b).
4. Amend § 1130.2 by revising
paragraph (a)(13) to read as follows:
■
§ 1130.2
[USCBP–2016–0076; CBP Dec. 17–21]
RIN 1515–AE21
Definitions.
Donations of Technology and Related
Support Services To Enforce
Intellectual Property Rights
*
*
*
*
*
(a) * * *
(13) Children’s folding chairs and
stools;
*
*
*
*
*
■ 5. Add part 1232 to read as follows:
PART 1232—SAFETY STANDARD FOR
CHILDREN’S FOLDING CHAIRS AND
STOOLS
Sec.
1232.1 Scope.
1232.2 Requirements for children’s folding
chairs and stools.
Authority: Sec. 104, Pub. L. 110–314, 122
Stat. 3016 (August 14, 2008); Pub. L. 112–28,
125 Stat. 273 (August 12, 2011).
§ 1232.1
Scope.
This part establishes a consumer
product safety standard for children’s
folding chairs and stools.
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BILLING CODE 6355–01–P
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Effective January 16, 2018.
FOR FURTHER INFORMATION CONTACT:
(a) Each children’s folding chair and
stool shall comply with all applicable
provisions of ASTM F2613–17a,
Standard Consumer Safety
Specification for Children’s Chairs and
Stools, approved on October 1, 2017.
The Director of the Federal Register
approves this incorporation by reference
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may obtain a copy
from ASTM International, 100 Bar
Harbor Drive, P.O. Box 0700, West
Conshohocken, PA 19428; https://
www.astm.org. You may inspect a copy
at the Office of the Secretary, U.S.
Consumer Product Safety Commission,
Room 820, 4330 East West Highway,
Bethesda, MD 20814, telephone 301–
504–7923, or at the National Archives
and Records Administration (NARA).
For information on the availability of
this material at NARA, call 202–741–
6030, or go to: https://www.archives.gov/
federal-register/cfr/ibr-locations.html.
(b) [Reserved]
[FR Doc. 2017–26997 Filed 12–14–17; 8:45 am]
This document amends the
U.S. Customs and Border Protection
(CBP) regulations relating to the
enforcement of intellectual property
rights. This final rule implements
section 308(d) of the Trade Facilitation
and Trade Enforcement Act of 2015
(TFTEA), which requires CBP to
prescribe regulatory procedures for the
donation of technologies, training, or
other related services for the purpose of
assisting CBP in intellectual property
enforcement.
SUMMARY:
DATES:
§ 1232.2 Requirements for children’s
folding chairs and stools.
Alberta E. Mills,
Acting Secretary, Consumer Product Safety
Commission.
U.S. Customs and Border
Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Final rule.
AGENCY:
Garrett D. Wright, Chief, Donations
Acceptance Program, Office of Field
Operations, U.S. Customs and Border
Protection, telephone (202) 344–2344.
SUPPLEMENTARY INFORMATION:
Background
The Trade Facilitation and Trade
Enforcement Act of 2015 (TFTEA),
Public Law 114–125, 130 Stat. 122 (19
U.S.C. 4301 note), was enacted on
February 24, 2016, and includes several
provisions regarding trade facilitation
and trade enforcement, some of which
deal with improving U.S. Customs and
Border Protection’s (CBP’s) intellectual
property rights (IPR) enforcement at the
border. Section 308(d) of the TFTEA
requires the Commissioner of CBP to
prescribe regulations to enable CBP to
receive donations of hardware, software,
equipment, and similar technologies,
and to accept training and other support
services, from private sector entities, for
the purpose of enforcing IPR.
Acceptance of such donations must
also be consistent with either section
482 of the Homeland Security Act of
2002, as amended by section 2 of the
Cross-Border Trade Enhancement Act of
2016 (Pub. L. 114–279), or section 507
of the Department of Homeland Security
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59511
(DHS) Appropriations Act of 2004 (Pub.
L. 108–90).
Section 482 of the Homeland Security
Act replaced section 559 of Title V of
Division F of the Consolidated
Appropriations Act, 2014 (Pub. L. 113–
76) and permits CBP, in consultation
with the General Services
Administration (GSA), to ‘‘enter into an
agreement with any entity to accept a
donation of personal property, money or
nonpersonal services’’ to be used for
certain CBP activities at most ports of
entry where CBP performs inspection
services. Pursuant to section 482(c)(3),
CBP in consultation with GSA will
establish criteria for evaluating donation
proposals under section 482 and make
such criteria publicly available.
If donations cannot be accepted under
section 482, they may be accepted under
section 507 of the DHS Appropriations
Act of 2004. Section 507 made the DHS
Gifts and Donations account ‘‘available
to the Department of Homeland Security
. . . for the Secretary of Homeland
Security to accept, hold, administer and
utilize gifts and bequests, including
property to facilitate the work of the
Department of Homeland Security.’’
Title V, Public Law 108–90, 117 Stat.
1153–1154. DHS policy on the
acceptance of gifts pursuant to section
507 is contained in DHS Directive 112–
02 and DHS Instruction 112–02–001.
The Secretary of DHS delegated the
authority to accept and utilize gifts to
the heads of certain DHS components,
including the Commissioner of CBP, in
DHS Delegation 0006.
This document implements section
308(d) of the TFTEA by promulgating a
new subpart H to part 133 of title 19 of
the Code of Federal Regulations (CFR)
which provides for the receipt and
acceptance by CBP of donations of
hardware, software, equipment, and
similar technologies, as well as training
and related support services, for the
purpose of assisting CBP in enforcing
IPR. New subpart H, as set forth in
§ 133.61, prescribes the methods by
which donations of IPR technology and
related support services may be made.
Specifically, 19 CFR 133.61(a) sets forth
the scope of this section and identifies
the authority to accept donations,
§ 133.61(b) describes the donation
process, and § 133.61(c) lays out the
elements of the written donation
agreement.
On January 17, 2017, CBP published
a Notice of Proposed Rulemaking
(NPRM) in the Federal Register (82 FR
4800) proposing to amend its
regulations pertaining to the
enforcement of intellectual property
rights in order to enhance CBP’s
intellectual property rights enforcement
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capabilities. The NPRM solicited for
public comments on the proposed
rulemaking. The public comment period
closed on March 3, 2017.
Discussion of Comments
Three commenters responded to the
solicitation of comments to the
proposed rule. A description of the
comments received, together with CBP’s
analysis, is set forth below.
Comment: One commenter, an
association dedicated to serving the
needs of the video game industry,
commended CBP’s efforts to enhance its
engagement with intellectual propertyintensive industries and border
enforcement needs, but also voiced
several concerns.
The first concern is related to
proposed § 133.61(b). The commenter
expressed concern with the procedure
laid out in paragraph (b) because this
‘‘formalized’’ process might interrupt
the dynamic nature of the relationship
between CBP and the video game
industry in providing training, as well
as the tools CBP needs in order to
accurately confirm the illegality of
suspected infringing imports.
CBP Response: CBP seeks to maintain
the dynamic relationship it has with the
video game industry and other
industries. The donation process that
CBP is creating is intended to be
streamlined, non-invasive, and flexible.
For example, in certain circumstances,
CBP and the industry partner may only
need to enter into one written
partnership agreement whereby any IPR
donation proposal made pursuant to
that agreement could be evaluated and,
if viable, accepted at the local level. In
addition, as explained below, the
donation process does not apply to
‘‘sample’’ products or stand-alone
training or educational seminars.
Comment: The commenter asked for
clarification on whether a single
donation offer, as envisioned by
§ 133.61(b), would cover a quantity or a
range of items, or whether a donation
offer must be submitted for each item
contemplated for donation.
CBP Response: In general, a single
donation offer could cover more than
one item and/or a range of items
assuming such items serve a similar IPR
enforcement purpose. Each donation
offer and each item, however, will be
considered on a case-by-case basis.
Comment: The commenter also
requested clarification on whether a
single, written donation offer would
encompass anticipated intermittent
donations of samples of infringing
products and circumvention devices.
The commenter explained that current
practice allows for video game
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companies to donate hardware,
software, samples of infringing
products, circumvention devices that
violate 17 U.S.C. 1201, and training
materials along with a request that CBP
seize like goods using a simple
transmittal letter to CBP’s Office of
Trade, Regulations and Rulings, IPR
Branch. Typically, these donations
comprise numerous identical or
comparable items, such as game copiers,
other circumvention devices, or memory
cards filled with pre-loaded games.
CBP Response: The process described
in the public comment with regard to
submissions of samples of genuine and
infringing articles will not be changed
with the new regulation. A distinction
needs to be made between ‘‘donations’’
covered under section 308(d) of the
TFTEA which are provided for the
regular use by CBP personnel assisting
with the enforcement of IPR, such as an
x-ray machine or a high magnification
microscope, and ‘‘samples’’ of
merchandise provided to the IPR Branch
for purposes of determining
admissibility. The furnishing of samples
of genuine and infringing articles is not
covered by the intended scope of the
Donations Acceptance Program under
§ 133.61. Rights owners, including the
video game industry, will be able to
continue to communicate and provide
samples to the IPR Branch and field
offices as the need for enforcement
arises. Accordingly, based on this
comment, CBP has amended the
regulatory text in § 133.61(a) to clarify
that articles provided to CBP as
‘‘samples,’’ as referenced in 19 CFR
151.10 and 177.2, are not included
within the scope of this rule.
Comment: The commenter also seeks
clarification on whether the proposed
donation offer requirements and process
would hinder the ability of CBP or other
DHS personnel, such as those of
Immigration and Customs Enforcement
(ICE), to request hardware or software
samples from private companies for the
purpose of conducting investigations.
CBP Response: The donation
requirements will not hinder the current
process of cooperation and informationsharing that regularly occurs between
rights holders and DHS personnel. The
regulations are not intended to affect the
processing of criminal investigations
into potential IPR violations within
other DHS agencies, such as DHS/
Homeland Security Investigations (HSI)
under DHS/ICE.
With regard to CBP’s civil
administrative enforcement authority of
IPR, if CBP makes a request to a rights
holder for information, software and/or
hardware, such request would not fall in
the ‘‘donation’’ category as
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contemplated by the regulations, but
would be considered a request for a
‘‘sample’’ of merchandise to be used by
CBP for authentication purposes with
regard to a specific matter. The current
process with CBP will continue
unaffected by the donation regulations
put in place.
Comment: The commenter is further
concerned with regard to the waiver
language in proposed § 133.61(c) (‘‘. . .
the service provider expressly waives
any future claims against the
government.’’). The commenter stated
that the proposed language is overbroad
and potentially captures all instances
where a donor of technology and
services pursues unrelated claims
against the U.S. government. The
commenter suggested that the waiver be
reasonably tailored to the donation in
question and not include ‘‘any claims
against the government.’’ Entering into a
donation agreement with CBP should
not foreclose any remedies against the
government in cases unrelated to the
donation agreement.
CBP Response: CBP agrees that a
clarification is appropriate and has
amended the regulatory text in 19 CFR
133.61(c) to address this concern.
Comment: Another commenter
expressed a concern with the proposed
rule. The commenter stated that it
appears that the proposed rule would
favor companies with more well-known
intellectual property and a larger market
share, undercutting the fundamental
purposes of intellectual property rights,
namely those which promote the
availability of new technologies and
competition in the market. The
commenter asked for clarification how
the proposed rule would benefit entities
other than those with a market incentive
to make donations.
CBP Response: The intent of the Act
is to enhance IPR enforcement.
Although enforcement of a particular
IPR right clearly benefits the rightholder, other parties also benefit from
IPR enforcement, in general.
Comment: The third commenter
commended CBP for its focus on the
implementation of section 308(d) of the
TFTEA and appreciated the opportunity
for CBP to accept technology to enrich
inspection activity at all U.S. ports of
entry. The commenter stated that the
equipment and technology that may be
used by agents will improve CBP’s
ability to identify counterfeits at even
earlier stages in the detection stage
process.
The commenter further stated that
under the TFTEA, CBP will now be able
to provide samples of counterfeits to
rights holders, and hopes that CBP will
share details, such as container number,
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customs broker, freight forwarders,
associated telephone numbers and email
addresses once the goods have been
deemed counterfeit. The sharing of this
additional information would enable
rights holders to analyze the data and
provide CBP with additional
information to identify illicit trade
patterns.
CBP Response: This comment falls
outside of the scope of 19 CFR 133.61.
The proposed regulation deals with
establishing a donation process so CBP
can receive donations of technologies,
equipment and other support services
for the purpose of detecting potentially
infringing articles and does not address
CBP sharing information or samples to
rights holders.
Other changes: CBP is adding the
word ‘‘related’’ before the words
‘‘support services’’ throughout the
regulatory text in order to clarify that
only training and support services
associated with a donation of hardware,
software, equipment or technology fall
within the scope of this regulation.
Training services that may be donated
pursuant to § 133.61 will be in the
context of donated technology or
equipment, in contrast to training
services provided to assist with CBP’s
general trade facilitation and trade
enforcement pursuant to section 104 of
the TFTEA.
CBP is also adding a reference to
‘‘hardware, software, equipment,
technologies’’ to § 133.61(c) to clarify
that a donation agreement may also
cover hardware, software, equipment,
and technologies, as well as training and
other related support services.
The email address in proposed
§ 133.61(b) to which donation offers
should be submitted has been updated
to dap@cbp.dhs.gov to reflect the
program’s current email address.
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Conclusion
After review of the comments, CBP
has decided to adopt as final the
proposed rule published in the Federal
Register on January 17, 2017, with the
changes described above.
Executive Orders 12866, 13563 and
13771
Executive Orders 13563 and 12866
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
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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 final rule is not a ‘‘significant
regulatory action,’’ under section 3(f) of
Executive Order 12866. Accordingly,
the Office of Management and Budget
has not reviewed this regulation. As this
rule is not a significant regulatory
action, this rule is exempt from the
requirements of Executive Order 13771.
See OMB’s Memorandum titled
‘‘Guidance Implementing Executive
Order 13771, Titled ‘Reducing
Regulation and Controlling Regulatory
Costs’ ’’ (April 5, 2017).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.), 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 notfor-profit organization; or a small
governmental jurisdiction (locality with
fewer than 50,000 people).
This rule will allow private sector
entities to voluntarily donate
technology, training, and other related
support services to improve CBP’s
ability to enforce intellectual property
rights potentially related to their goods.
As any entity with intellectual property
could make these donations, this rule
affects a substantial number of small
entities. However, this rule imposes no
new obligations on entities, including
those considered small. Any small
entity that chooses to make these
donations will presumably do so
because it believes the benefits of
donating exceed the costs. Therefore,
this rule will not have a significant
economic impact on small entities.
Given these reasons, CBP certifies that
this rule, will not have a significant
economic impact on a substantial
number of small entities.
59513
collection of information displays a
valid control number assigned by OMB.
OMB approved collection 1651–0123
has been revised to reflect this new
collection of information in this final
rule for written offers of donations to
CBP of technology, training, and other
related support services in accordance
with 19 CFR 133.61(b). The information
collection reflects the additional burden
hours for each written offer of donation
provided to CBP as follows:
Estimated number of annual
respondents: 50.
Estimated number of annual
responses: 50.
Estimated time burden per response:
2 hours.
Estimated total annual time burden:
100 hours.
Signing Authority
This document is being issued in
accordance with 19 CFR 0.1(a)(1)
pertaining to the Secretary of the
Treasury’s authority (or that of his
delegate) to approve regulations related
to certain customs revenue functions.
List of Subjects in 19 CFR Part 133
Circumvention devices, Copying or
simulating trademarks, Copyrights,
Counterfeit goods, Customs duties and
inspection, Detentions, Donations,
Reporting and recordkeeping
requirements, Restricted merchandise,
Seizures and forfeitures, Technology,
Trademarks, Trade names, Support
services.
Amendments to Part 133 of the CBP
Regulations
For the reasons set forth above, part
133 of title 19 of the Code of Federal
Regulations (19 CFR part 133) is
amended as set forth below.
PART 133—TRADEMARKS, TRADE
NAMES, AND COPYRIGHTS
1. The general authority citation for
part 133 continues, and the specific
authority for new subpart H is added 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.
*
*
*
*
*
Section 133.61 also issued under Sec.
308(d), Pub. L. 114–125; Sec. 507, Pub. L.
108–90; Sec. 2, Pub. L. 114–279.
Subpart G—[Reserved]
Paperwork Reduction Act
An agency may not conduct, and a
person is not required to respond to, a
collection of information unless the
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■
2. Reserved subpart G is added.
3. Subpart H, consisting of § 133.61, is
added to read as follows:
■
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Subpart H—Donations of Intellectual
Property Rights Technology and
Related Support Services
§ 133.61 Donations of intellectual property
rights technology and related support
services.
(a) Scope. The Commissioner of U.S.
Customs and Border Protection (CBP) is
authorized to accept donations of
hardware, software, equipment, and
similar technologies, as well as related
support services and training, from
private sector entities, for the purpose of
assisting CBP in enforcing intellectual
property rights. Such acceptance must
be consistent with the conditions set
forth in this section and section 308(d)
of the Trade Facilitation and Trade
Enforcement Act of 2015 (19 U.S.C.
4301 note), as well as either section 482
of the Homeland Security Act of 2002,
as amended by section 2 of the CrossBorder Trade Enhancement Act of 2016
(6 U.S.C. 301a), or section 507 of the
Department of Homeland Security
Appropriations Act of 2004 (Pub. L.
108–90). However, this section does not
apply to merchandise provided to CBP
as samples, e.g., as referenced in
§§ 151.10 and 177.2 of this chapter.
(b) Donation offer. A donation offer
must be submitted to CBP either via
email, to dap@cbp.dhs.gov, or mailed to
the attention of the Executive Assistant
Commissioner, Office of Field
Operations, or his/her designee. The
donation offer must describe the
proposed donation in sufficient detail to
enable CBP to determine its
compatibility with existing CBP
technologies, networks, and facilities
(e.g. operating system or similar
requirements, power supply
requirements, item size and weight,
etc.). The donation offer must also
include information pertaining to the
donation’s scope, purpose, expected
benefits, intended use, costs, and
attached conditions, as applicable, that
is sufficient to enable CBP to evaluate
the donation and make a determination
as to whether to accept it. CBP will
notify the donor, in writing, if
additional information is requested or if
CBP has determined that it will not
accept the donation.
(c) Agreement to accept donation. If
CBP accepts a donation of hardware,
software, equipment, technologies, or
related support services and training, for
the purpose of enforcing intellectual
property rights, CBP will enter into a
signed, written agreement with an
authorized representative of the donor.
The agreement must contain all
applicable terms and conditions of the
donation. An agreement to accept a
donation must provide that the
hardware, software, equipment,
technologies, or related support services
and training are offered without the
expectation of payment, and that the
donor expressly waives any future
claims, except those expressly reserved
in the agreement, against the
government related to the donation.
Kevin K. McAleenan,
Acting Commissioner, U.S. Customs and
Border Protection.
Approved: December 12, 2017.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2017–27065 Filed 12–14–17; 8:45 am]
BILLING CODE 9111–14–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
[Docket No. SSA–2017–0055]
RIN 0960–AI17
Extension of Expiration Dates for Four
Body System Listings
Social Security Administration.
Final rule.
AGENCY:
ACTION:
We are extending the
expiration dates of the following body
systems in the Listing of Impairments
(listings) in our regulations:
Musculoskeletal System, Cardiovascular
System, Digestive System, and Skin
Disorders. We are making no other
SUMMARY:
revisions to these body systems in this
final rule. This extension ensures that
we will continue to have the criteria we
need to evaluate impairments in the
affected body systems at step three of
the sequential evaluation processes for
initial claims and continuing disability
reviews.
DATES: This final rule is effective on
December 15, 2017.
FOR FURTHER INFORMATION CONTACT:
Cheryl A. Williams, Director, Office of
Medical Policy, 6401 Security
Boulevard, Baltimore, MD 21235–6401,
(410) 965–1020. For information on
eligibility or filing for benefits, call our
national toll-free number, 1–800–772–
1213, or TTY 1–800–325–0778, or visit
our internet site, Social Security Online,
at https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
We use the listings in appendix 1 to
subpart P of part 404 of 20 CFR at the
third step of the sequential evaluation
process to evaluate claims filed by
adults and children for benefits based
on disability under the title II and title
XVI programs.1 20 CFR 404.1520(d),
416.920(d), 416.924(d). The listings are
in two parts: Part A has listings criteria
for adults and Part B has listings criteria
for children. If you are age 18 or over,
we apply the listings criteria in part A
when we assess your impairment or
combination of impairments. If you are
under age 18, we first use the criteria in
part B of the listings when we assess
your impairment(s). If the criteria in
part B do not apply, we may use the
criteria in part A when those criteria
consider the effects of your
impairment(s). 20 CFR 404.1525(b),
416.925(b).
Explanation of Changes
In this final rule, we are extending the
dates on which the listings for the
following four body systems will no
longer be effective as set out in the
following chart:
Current expiration
date
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Listing
Musculoskeletal System 1.00 and 101.00 ..............................................................................................
Cardiovascular System 4.00 and 104.00 ...............................................................................................
Digestive System 5.00 and 105.00 .........................................................................................................
Skin Disorders 8.00 and 108.00 .............................................................................................................
1 We also use the listings in the sequential
evaluation processes we use to determine whether
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15:15 Dec 14, 2017
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January
January
January
January
26,
26,
26,
26,
a beneficiary’s disability continues. See 20 CFR
404.1594, 416.994, and 416.994a.
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2018
2018
2018
2018
...
...
...
...
Extended expiration
date
January
January
January
January
27,
27,
27,
27,
2020.
2020.
2020.
2020.
]]>Agencies
[Federal Register Volume 82, Number 240 (Friday, December 15, 2017)]
[Rules and Regulations]
[Pages 59511-59514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27065]
=======================================================================
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Part 133
[USCBP-2016-0076; CBP Dec. 17-21]
RIN 1515-AE21
Donations of Technology and Related Support Services To Enforce
Intellectual Property Rights
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Final rule.
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SUMMARY: This document amends the U.S. Customs and Border Protection
(CBP) regulations relating to the enforcement of intellectual property
rights. This final rule implements section 308(d) of the Trade
Facilitation and Trade Enforcement Act of 2015 (TFTEA), which requires
CBP to prescribe regulatory procedures for the donation of
technologies, training, or other related services for the purpose of
assisting CBP in intellectual property enforcement.
DATES: Effective January 16, 2018.
FOR FURTHER INFORMATION CONTACT: Garrett D. Wright, Chief, Donations
Acceptance Program, Office of Field Operations, U.S. Customs and Border
Protection, telephone (202) 344-2344.
SUPPLEMENTARY INFORMATION:
Background
The Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA),
Public Law 114-125, 130 Stat. 122 (19 U.S.C. 4301 note), was enacted on
February 24, 2016, and includes several provisions regarding trade
facilitation and trade enforcement, some of which deal with improving
U.S. Customs and Border Protection's (CBP's) intellectual property
rights (IPR) enforcement at the border. Section 308(d) of the TFTEA
requires the Commissioner of CBP to prescribe regulations to enable CBP
to receive donations of hardware, software, equipment, and similar
technologies, and to accept training and other support services, from
private sector entities, for the purpose of enforcing IPR.
Acceptance of such donations must also be consistent with either
section 482 of the Homeland Security Act of 2002, as amended by section
2 of the Cross-Border Trade Enhancement Act of 2016 (Pub. L. 114-279),
or section 507 of the Department of Homeland Security (DHS)
Appropriations Act of 2004 (Pub. L. 108-90).
Section 482 of the Homeland Security Act replaced section 559 of
Title V of Division F of the Consolidated Appropriations Act, 2014
(Pub. L. 113-76) and permits CBP, in consultation with the General
Services Administration (GSA), to ``enter into an agreement with any
entity to accept a donation of personal property, money or nonpersonal
services'' to be used for certain CBP activities at most ports of entry
where CBP performs inspection services. Pursuant to section 482(c)(3),
CBP in consultation with GSA will establish criteria for evaluating
donation proposals under section 482 and make such criteria publicly
available.
If donations cannot be accepted under section 482, they may be
accepted under section 507 of the DHS Appropriations Act of 2004.
Section 507 made the DHS Gifts and Donations account ``available to the
Department of Homeland Security . . . for the Secretary of Homeland
Security to accept, hold, administer and utilize gifts and bequests,
including property to facilitate the work of the Department of Homeland
Security.'' Title V, Public Law 108-90, 117 Stat. 1153-1154. DHS policy
on the acceptance of gifts pursuant to section 507 is contained in DHS
Directive 112-02 and DHS Instruction 112-02-001. The Secretary of DHS
delegated the authority to accept and utilize gifts to the heads of
certain DHS components, including the Commissioner of CBP, in DHS
Delegation 0006.
This document implements section 308(d) of the TFTEA by
promulgating a new subpart H to part 133 of title 19 of the Code of
Federal Regulations (CFR) which provides for the receipt and acceptance
by CBP of donations of hardware, software, equipment, and similar
technologies, as well as training and related support services, for the
purpose of assisting CBP in enforcing IPR. New subpart H, as set forth
in Sec. 133.61, prescribes the methods by which donations of IPR
technology and related support services may be made. Specifically, 19
CFR 133.61(a) sets forth the scope of this section and identifies the
authority to accept donations, Sec. 133.61(b) describes the donation
process, and Sec. 133.61(c) lays out the elements of the written
donation agreement.
On January 17, 2017, CBP published a Notice of Proposed Rulemaking
(NPRM) in the Federal Register (82 FR 4800) proposing to amend its
regulations pertaining to the enforcement of intellectual property
rights in order to enhance CBP's intellectual property rights
enforcement
[[Page 59512]]
capabilities. The NPRM solicited for public comments on the proposed
rulemaking. The public comment period closed on March 3, 2017.
Discussion of Comments
Three commenters responded to the solicitation of comments to the
proposed rule. A description of the comments received, together with
CBP's analysis, is set forth below.
Comment: One commenter, an association dedicated to serving the
needs of the video game industry, commended CBP's efforts to enhance
its engagement with intellectual property-intensive industries and
border enforcement needs, but also voiced several concerns.
The first concern is related to proposed Sec. 133.61(b). The
commenter expressed concern with the procedure laid out in paragraph
(b) because this ``formalized'' process might interrupt the dynamic
nature of the relationship between CBP and the video game industry in
providing training, as well as the tools CBP needs in order to
accurately confirm the illegality of suspected infringing imports.
CBP Response: CBP seeks to maintain the dynamic relationship it has
with the video game industry and other industries. The donation process
that CBP is creating is intended to be streamlined, non-invasive, and
flexible. For example, in certain circumstances, CBP and the industry
partner may only need to enter into one written partnership agreement
whereby any IPR donation proposal made pursuant to that agreement could
be evaluated and, if viable, accepted at the local level. In addition,
as explained below, the donation process does not apply to ``sample''
products or stand-alone training or educational seminars.
Comment: The commenter asked for clarification on whether a single
donation offer, as envisioned by Sec. 133.61(b), would cover a
quantity or a range of items, or whether a donation offer must be
submitted for each item contemplated for donation.
CBP Response: In general, a single donation offer could cover more
than one item and/or a range of items assuming such items serve a
similar IPR enforcement purpose. Each donation offer and each item,
however, will be considered on a case-by-case basis.
Comment: The commenter also requested clarification on whether a
single, written donation offer would encompass anticipated intermittent
donations of samples of infringing products and circumvention devices.
The commenter explained that current practice allows for video game
companies to donate hardware, software, samples of infringing products,
circumvention devices that violate 17 U.S.C. 1201, and training
materials along with a request that CBP seize like goods using a simple
transmittal letter to CBP's Office of Trade, Regulations and Rulings,
IPR Branch. Typically, these donations comprise numerous identical or
comparable items, such as game copiers, other circumvention devices, or
memory cards filled with pre-loaded games.
CBP Response: The process described in the public comment with
regard to submissions of samples of genuine and infringing articles
will not be changed with the new regulation. A distinction needs to be
made between ``donations'' covered under section 308(d) of the TFTEA
which are provided for the regular use by CBP personnel assisting with
the enforcement of IPR, such as an x-ray machine or a high
magnification microscope, and ``samples'' of merchandise provided to
the IPR Branch for purposes of determining admissibility. The
furnishing of samples of genuine and infringing articles is not covered
by the intended scope of the Donations Acceptance Program under Sec.
133.61. Rights owners, including the video game industry, will be able
to continue to communicate and provide samples to the IPR Branch and
field offices as the need for enforcement arises. Accordingly, based on
this comment, CBP has amended the regulatory text in Sec. 133.61(a) to
clarify that articles provided to CBP as ``samples,'' as referenced in
19 CFR 151.10 and 177.2, are not included within the scope of this
rule.
Comment: The commenter also seeks clarification on whether the
proposed donation offer requirements and process would hinder the
ability of CBP or other DHS personnel, such as those of Immigration and
Customs Enforcement (ICE), to request hardware or software samples from
private companies for the purpose of conducting investigations.
CBP Response: The donation requirements will not hinder the current
process of cooperation and information-sharing that regularly occurs
between rights holders and DHS personnel. The regulations are not
intended to affect the processing of criminal investigations into
potential IPR violations within other DHS agencies, such as DHS/
Homeland Security Investigations (HSI) under DHS/ICE.
With regard to CBP's civil administrative enforcement authority of
IPR, if CBP makes a request to a rights holder for information,
software and/or hardware, such request would not fall in the
``donation'' category as contemplated by the regulations, but would be
considered a request for a ``sample'' of merchandise to be used by CBP
for authentication purposes with regard to a specific matter. The
current process with CBP will continue unaffected by the donation
regulations put in place.
Comment: The commenter is further concerned with regard to the
waiver language in proposed Sec. 133.61(c) (``. . . the service
provider expressly waives any future claims against the government.'').
The commenter stated that the proposed language is overbroad and
potentially captures all instances where a donor of technology and
services pursues unrelated claims against the U.S. government. The
commenter suggested that the waiver be reasonably tailored to the
donation in question and not include ``any claims against the
government.'' Entering into a donation agreement with CBP should not
foreclose any remedies against the government in cases unrelated to the
donation agreement.
CBP Response: CBP agrees that a clarification is appropriate and
has amended the regulatory text in 19 CFR 133.61(c) to address this
concern.
Comment: Another commenter expressed a concern with the proposed
rule. The commenter stated that it appears that the proposed rule would
favor companies with more well-known intellectual property and a larger
market share, undercutting the fundamental purposes of intellectual
property rights, namely those which promote the availability of new
technologies and competition in the market. The commenter asked for
clarification how the proposed rule would benefit entities other than
those with a market incentive to make donations.
CBP Response: The intent of the Act is to enhance IPR enforcement.
Although enforcement of a particular IPR right clearly benefits the
right-holder, other parties also benefit from IPR enforcement, in
general.
Comment: The third commenter commended CBP for its focus on the
implementation of section 308(d) of the TFTEA and appreciated the
opportunity for CBP to accept technology to enrich inspection activity
at all U.S. ports of entry. The commenter stated that the equipment and
technology that may be used by agents will improve CBP's ability to
identify counterfeits at even earlier stages in the detection stage
process.
The commenter further stated that under the TFTEA, CBP will now be
able to provide samples of counterfeits to rights holders, and hopes
that CBP will share details, such as container number,
[[Page 59513]]
customs broker, freight forwarders, associated telephone numbers and
email addresses once the goods have been deemed counterfeit. The
sharing of this additional information would enable rights holders to
analyze the data and provide CBP with additional information to
identify illicit trade patterns.
CBP Response: This comment falls outside of the scope of 19 CFR
133.61. The proposed regulation deals with establishing a donation
process so CBP can receive donations of technologies, equipment and
other support services for the purpose of detecting potentially
infringing articles and does not address CBP sharing information or
samples to rights holders.
Other changes: CBP is adding the word ``related'' before the words
``support services'' throughout the regulatory text in order to clarify
that only training and support services associated with a donation of
hardware, software, equipment or technology fall within the scope of
this regulation. Training services that may be donated pursuant to
Sec. 133.61 will be in the context of donated technology or equipment,
in contrast to training services provided to assist with CBP's general
trade facilitation and trade enforcement pursuant to section 104 of the
TFTEA.
CBP is also adding a reference to ``hardware, software, equipment,
technologies'' to Sec. 133.61(c) to clarify that a donation agreement
may also cover hardware, software, equipment, and technologies, as well
as training and other related support services.
The email address in proposed Sec. 133.61(b) to which donation
offers should be submitted has been updated to [email protected] to
reflect the program's current email address.
Conclusion
After review of the comments, CBP has decided to adopt as final the
proposed rule published in the Federal Register on January 17, 2017,
with the changes described above.
Executive Orders 12866, 13563 and 13771
Executive Orders 13563 and 12866 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 final rule is not a ``significant regulatory action,'' under
section 3(f) of Executive Order 12866. Accordingly, the Office of
Management and Budget has not reviewed this regulation. As this rule is
not a significant regulatory action, this rule is exempt from the
requirements of Executive Order 13771. See OMB's Memorandum titled
``Guidance Implementing Executive Order 13771, Titled `Reducing
Regulation and Controlling Regulatory Costs' '' (April 5, 2017).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), 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).
This rule will allow private sector entities to voluntarily donate
technology, training, and other related support services to improve
CBP's ability to enforce intellectual property rights potentially
related to their goods. As any entity with intellectual property could
make these donations, this rule affects a substantial number of small
entities. However, this rule imposes no new obligations on entities,
including those considered small. Any small entity that chooses to make
these donations will presumably do so because it believes the benefits
of donating exceed the costs. Therefore, this rule will not have a
significant economic impact on small entities. Given these reasons, CBP
certifies that this rule, will not have a significant economic impact
on a substantial number of small entities.
Paperwork Reduction Act
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.
OMB approved collection 1651-0123 has been revised to reflect this
new collection of information in this final rule for written offers of
donations to CBP of technology, training, and other related support
services in accordance with 19 CFR 133.61(b). The information
collection reflects the additional burden hours for each written offer
of donation provided to CBP as follows:
Estimated number of annual respondents: 50.
Estimated number of annual responses: 50.
Estimated time burden per response: 2 hours.
Estimated total annual time burden: 100 hours.
Signing Authority
This document is being issued in accordance with 19 CFR 0.1(a)(1)
pertaining to the Secretary of the Treasury's authority (or that of his
delegate) to approve regulations related to certain customs revenue
functions.
List of Subjects in 19 CFR Part 133
Circumvention devices, Copying or simulating trademarks,
Copyrights, Counterfeit goods, Customs duties and inspection,
Detentions, Donations, Reporting and recordkeeping requirements,
Restricted merchandise, Seizures and forfeitures, Technology,
Trademarks, Trade names, Support services.
Amendments to Part 133 of the CBP Regulations
For the reasons set forth above, part 133 of title 19 of the Code
of Federal Regulations (19 CFR part 133) is amended as set forth below.
PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS
0
1. The general authority citation for part 133 continues, and the
specific authority for new subpart H is added 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.
* * * * *
Section 133.61 also issued under Sec. 308(d), Pub. L. 114-125;
Sec. 507, Pub. L. 108-90; Sec. 2, Pub. L. 114-279.
Subpart G--[Reserved]
0
2. Reserved subpart G is added.
0
3. Subpart H, consisting of Sec. 133.61, is added to read as follows:
[[Page 59514]]
Subpart H--Donations of Intellectual Property Rights Technology and
Related Support Services
Sec. 133.61 Donations of intellectual property rights technology and
related support services.
(a) Scope. The Commissioner of U.S. Customs and Border Protection
(CBP) is authorized to accept donations of hardware, software,
equipment, and similar technologies, as well as related support
services and training, from private sector entities, for the purpose of
assisting CBP in enforcing intellectual property rights. Such
acceptance must be consistent with the conditions set forth in this
section and section 308(d) of the Trade Facilitation and Trade
Enforcement Act of 2015 (19 U.S.C. 4301 note), as well as either
section 482 of the Homeland Security Act of 2002, as amended by section
2 of the Cross-Border Trade Enhancement Act of 2016 (6 U.S.C. 301a), or
section 507 of the Department of Homeland Security Appropriations Act
of 2004 (Pub. L. 108-90). However, this section does not apply to
merchandise provided to CBP as samples, e.g., as referenced in
Sec. Sec. 151.10 and 177.2 of this chapter.
(b) Donation offer. A donation offer must be submitted to CBP
either via email, to [email protected], or mailed to the attention of the
Executive Assistant Commissioner, Office of Field Operations, or his/
her designee. The donation offer must describe the proposed donation in
sufficient detail to enable CBP to determine its compatibility with
existing CBP technologies, networks, and facilities (e.g. operating
system or similar requirements, power supply requirements, item size
and weight, etc.). The donation offer must also include information
pertaining to the donation's scope, purpose, expected benefits,
intended use, costs, and attached conditions, as applicable, that is
sufficient to enable CBP to evaluate the donation and make a
determination as to whether to accept it. CBP will notify the donor, in
writing, if additional information is requested or if CBP has
determined that it will not accept the donation.
(c) Agreement to accept donation. If CBP accepts a donation of
hardware, software, equipment, technologies, or related support
services and training, for the purpose of enforcing intellectual
property rights, CBP will enter into a signed, written agreement with
an authorized representative of the donor. The agreement must contain
all applicable terms and conditions of the donation. An agreement to
accept a donation must provide that the hardware, software, equipment,
technologies, or related support services and training are offered
without the expectation of payment, and that the donor expressly waives
any future claims, except those expressly reserved in the agreement,
against the government related to the donation.
Kevin K. McAleenan,
Acting Commissioner, U.S. Customs and Border Protection.
Approved: December 12, 2017.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2017-27065 Filed 12-14-17; 8:45 am]
BILLING CODE 9111-14-P
