Enforcement of Copyrights and the Digital Millennium Copyright Act, 55251-55265 [2019-21980]

Download as PDF Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules state law must be determined by the juvenile court based on applicable state law. • Clarify that DHS consent to the grant of SIJ classification is only warranted when the petitioner demonstrates that the state court order was sought primarily for the purpose of obtaining relief from abuse, neglect, abandonment or some similar basis under state law and not primarily for the purpose of obtaining lawful immigration status; and that the evidence otherwise demonstrates that there is a bona fide basis for granting SIJ classification. • Clarify that USCIS may seek or consider additional evidence if the evidence presented is not sufficient to establish a reasonable basis for DHS consent. • Remove automatic revocation under 8 CFR 205.1(a)(3)(iv)(A) and (C) to the extent that they pertain to a juvenile’s age and are inconsistent with age-out protections under TVPRA 2008. • Implement statutory revisions exempting SIJ adjustment-of-status applicants from four additional grounds of inadmissibility and clarify grounds of inadmissibility that cannot be waived. • Improve the application process by clearly listing required initial evidence that must accompany Form I–360 and amend what constitutes supporting documentation; and • Make technical and procedural changes; and conform terminology. DHS is reopening the comment period to refresh this proposed rule and allow interested persons to provide up-to-date comments in recognition of the time that has lapsed since the initial publication of the proposed rule. Both the public and the Government will benefit from clarifications regarding eligibility and procedures for the SIJ classification. Due to the lapse in time since the NPRM was issued, DHS seeks to reengage the public and allow further input on the proposed changes. Kevin K. McAleenan, Acting Secretary. khammond on DSKJM1Z7X2PROD with PROPOSALS [FR Doc. 2019–22570 Filed 10–15–19; 8:45 am] BILLING CODE 9111–97–P VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury. ACTION: Notice of proposed rulemaking. AGENCY: 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 SUMMARY: PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 55251 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. E:\FR\FM\16OCP1.SGM 16OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 55252 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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 preseizure 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 VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 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 E:\FR\FM\16OCP1.SGM 16OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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 VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 § 133.0 to include TFTEAmandated 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 nonviolative 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 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 55253 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 § 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 § 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 E:\FR\FM\16OCP1.SGM 16OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 55254 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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, § 133.44, prescribes the actions to be taken when CBP sustains or denies a claim of piracy under § 133.43. Accordingly, CBP is proposing to remove §§ 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 § 133.43 in a revised § 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 § 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 § 133.42(a) sets forth definitions for purposes of part 133. • Proposed § 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 § 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 § 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 VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 § 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 § 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 § 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 § 133.42(c). • Proposed § 133.42(b)(4) describes the basic importation information to be disclosed to the owner of the recorded copyright. • Proposed § 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 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 may demand the return of the sample at any time. • Proposed § 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 § 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 § 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 § 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 § 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 § 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 § 171. E:\FR\FM\16OCP1.SGM 16OCP1 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 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 postseizure 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 VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 § 133.47, setting forth regulatory provisions that prescribe the detention and seizure of certain articles that violate the DMCA. The regulatory provisions proposed in § 133.47 closely mirror the comparable provisions for trademark as laid out in § 133.21 and copyright as laid out in proposed § 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 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 55255 released from CBP custody are determined to be violative, proposed § 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 postseizure 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 § 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 §§ 133.43 and 133.44, it is also proposed to revise a related provision in § 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 E:\FR\FM\16OCP1.SGM 16OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 55256 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules cross reference to the new IPR sample bond conditions set forth in § 113.70 in proposed § 133.21(b)(5), (c)(2), and (f), § 133.25(c), § 133.42(b)(5), (c)(2), and (f), and § 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 § 133.43 in existing § 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 § 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 § 133.21(b) and (f) to the related copyright (§ 133.42(b) and (f)) and DMCA (§ 133.47(b) and (f)) provisions proposed in this document. In addition, CBP is proposing conforming amendments to § 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 § 133.51(a), to reflect the addition of proposed § 133.48, which will provide for redelivery of merchandise found to violate the DMCA. Similarly, CBP is proposing to amend § 133.52(b) to account for the alternative dispositions of seized merchandise reflected in proposed §§ 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 § 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 § 133.42, discussed above, which shorten many of VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 § 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 crossreference to 19 CFR 151.16(c) to the notice provisions set forth in §§ 133.42(b)(2) and 133.47(b)(2). This document also proposes nonsubstantive editorial changes to § 151.16. Likewise, this document proposes to amend 19 CFR 177.0 by removing the existing exception for copyright determinations under part 133. Currently, § 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 §§ 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 § 148.55, to reflect this statutory exemption. The conditions are set forth in existing § 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 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 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. E:\FR\FM\16OCP1.SGM 16OCP1 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 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. 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 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. 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 VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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. 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 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. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 55257 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 notfor-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. 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 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. E:\FR\FM\16OCP1.SGM 16OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 55258 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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. 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. 6 See ‘‘CBP Analysis of Small Importers,’’ November 2018. Available in the docket of this rulemaking. VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 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 1. The general authority citation for part 113 continues to read as follows: ■ Authority: 19 U.S.C. 66, 1623, 1624. * * * * * 2. Section 113.42 is revised to read as follows: ■ § 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. ■ 3. Section 113.70 is revised to read as follows: § 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 §§ 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 §§ 133.21, 133.25, 133.42, or E:\FR\FM\16OCP1.SGM 16OCP1 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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 4. The general authority citation for part 133 is revised to read as follows, the specific authority for §§ 133.21 to 133.25 is removed, and a specific authority citation for § 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. * * § 133.0 * * * Scope. 5. In § 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. khammond on DSKJM1Z7X2PROD with PROPOSALS ■ VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 6. Amend § 133.21 by: a. Removing the words ‘‘owner of the mark’’ wherever they appear and adding in their place the words ‘‘owner of the recorded mark’’; ■ b. Revising paragraphs (b)(2)(ii) and (b)(3) and the second sentence of paragraph (b)(4) introductory text; ■ c. Removing the word ‘‘mark’’ and adding in its place the word ‘‘markings’’ in the second sentence of paragraph (b)(5); ■ 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: ■ ■ § 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 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 55259 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 § 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 § 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 § 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.’’ * * * * * § 133.25 [Amended] 7. Section 133.25 is amended: a. By removing the word ‘‘Customs’’ wherever it appears, and in its place adding the word ‘‘CBP’’; ■ ■ E:\FR\FM\16OCP1.SGM 16OCP1 55260 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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 ■ c. In paragraph (c): ■ 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; ■ ii. By removing the words ‘‘owner of the trademark’’ and adding in their place ‘‘owner of the recorded mark’’ in the first sentence; ■ iii. By revising the second sentence; and ■ 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: ■ § 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 § 113.70 of this chapter. * * * * * * * * ■ 8. Section 133.42 is revised to read as follows: khammond on DSKJM1Z7X2PROD with PROPOSALS § 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, VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 CBP will notify the importer in writing of the detention as set forth in § 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 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 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 § 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 § 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 E:\FR\FM\16OCP1.SGM 16OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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 § 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 § 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, VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 55261 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 § 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 § 133.52, subject to the importer’s right to petition for relief from forfeiture under the provisions of part 171 of this chapter. §§ 133.43 and 133.44 Reserved] [Removed and 9. Sections 133.43 and 133.44 are removed and reserved. ■ 10. Redesignate subpart F as subpart G and add new subpart F, consisting of §§ 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 § 133.47 Articles suspected of violating the Digital Millennium Copyright Act (a) Definitions—(1) Copyright protection measure. A technological measure that effectively controls access E:\FR\FM\16OCP1.SGM 16OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 55262 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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 § 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, VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 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 § 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 § 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, E:\FR\FM\16OCP1.SGM 16OCP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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 § 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 § 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 VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 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 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 55263 any time following a seizure of DMCAviolative 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 § 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 § 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. § 133.48 articles Demand for redelivery of released 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 § 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 § 113.62 of this chapter, a claim for liquidated damages will be made in accordance with § 141.113 of this chapter. § 133.51 [Amended] 11. Section 133.51 is amended in paragraph (a) by: ■ E:\FR\FM\16OCP1.SGM 16OCP1 55264 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules a. Adding the words ’’ including the DMCA,’’ after the words ‘‘trademark or copyright laws,’’; and ■ b. Removing the phrase ‘‘§ 133.24 or § 133.46.’’ and adding in its place the phrase ‘‘§§ 133.24, 133.46, or 133.48 of this part.’’ ■ § 133.52 [Amended] 12. Section 133.52 is amended in paragraph (b) by adding the phrase ‘‘except as provided in §§ 133.42(g) and 133.47(g) of this part’’ after the word ‘‘destroyed’’. ■ PART 148—PERSONAL DECLARATIONS AND EXEMPTIONS 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; * * * * * 14. Amend § 148.55 by revising the section heading and paragraphs (a) and (c) to read as follows: ■ khammond on DSKJM1Z7X2PROD with PROPOSALS § 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 § 133.21(a) of this chapter) or piratical articles (as defined in § 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, VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 PART 151—EXAMINATION, SAMPLING, AND TESTING OF MERCHANDISE 15. The general authority citation for part 151 continues to read as follows: ■ 13. The general authority citation for part 148 continues and new specific authority is added for § 148.55, to read as follows: ■ * 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. Authority: 19 U.S.C. 66, 1202 (General Note 3(i) and (j), Harmonized Tariff Schedule of the United States (HTSUS), 1624; * * * * * ■ 16. Amend § 151.16 by: ■ a. Revising paragraphs (a), (b), and (c); ■ 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); ■ c. Removing the word ‘‘Customs’’ and adding in its place the term ‘‘CBP’’ in paragraph (e); ■ 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); ■ e. Removing the word ‘‘shall’’ and adding in its place the word ‘‘will’’ in paragraph (g); ■ f. Removing the word ‘‘Customs’’ and adding in its place the term ‘‘CBP’’ in paragraph (h); ■ 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 ■ h. Removing the word ‘‘Customs’’ and adding in its place the term ‘‘CBP’’ in paragraph (j). The revisions read as follows: § 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 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 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 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. * * § 177.0 * * * [Amended] 18. In § 177.0 remove the words ‘‘part 133 (relating to disputed claims of ■ E:\FR\FM\16OCP1.SGM 16OCP1 Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules 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 NATIONAL LABOR RELATIONS BOARD 29 CFR Part 103 RIN 3142–AA15 Jurisdiction—Nonemployee Status of University and College Students Working in Connection With Their Studies; Correction and Extension of Comment Period AGENCY: National Labor Relations Board. Notice of proposed rulemaking; Correction; extension of comment period. ACTION: This document corrects the preamble to a proposed rule published in the Federal Register of September 23, 2019, regarding Nonemployee Status of University and College Students Working in Connection with Their Studies. This correction revises the Regulatory Flexibility Act section in the preamble of the proposed rule to substitute an Initial Regulatory Flexibility Analysis. The date to submit responses to the Notice of Proposed Rulemaking is also extended for 60 days. SUMMARY: The comment period for the notice of proposed rulemaking published at 84 FR 49691 is extended. Comments must be received by the Board on or before Monday, December 16, 2019. Comments replying to comments submitted during the initial comment period must be received by the Board on or before Monday, December 30, 2019. FOR FURTHER INFORMATION CONTACT: Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street SE, Washington, DC 20570–0001, (202) 273–1940 (this is not a toll-free number), 1–866–315–6572 (TTY/TDD). SUPPLEMENTARY INFORMATION: khammond on DSKJM1Z7X2PROD with PROPOSALS DATES: Correction In proposed rule FR 2019–20510, beginning on page 49691 in the issue of September 23, 2019, make the following VerDate Sep<11>2014 15:58 Oct 15, 2019 Jkt 250001 correction, in the SUPPLEMENTARY INFORMATION section. On page 49699, in the 1st column, revise the text between ‘‘Regulatory Flexibility Act’’ and ‘‘Paperwork Reduction Act’’ to read as follows: A. Initial Regulatory Flexibility Analysis The Regulatory Flexibility Act of 1980 (‘‘RFA’’), 5 U.S.C. 601, et seq., ensures that agencies ‘‘review draft rules to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by the [RFA].’’ 1 It requires agencies promulgating proposed rules to prepare an Initial Regulatory Flexibility Analysis (‘‘IRFA’’) and to develop alternatives wherever possible, when drafting regulations that will have a significant impact on a substantial number of small entities.2 However, an agency is not required to prepare an IRFA for a proposed rule if the agency head certifies that, if promulgated, the rule will not have a significant economic impact on a substantial number of small entities.3 The RFA does not define either ‘‘significant economic impact’’ or ‘‘substantial number of small entities.’’ 4 Additionally, ‘‘[i]n the absence of statutory specificity, what is ‘significant’ will vary depending on the economics of the industry or sector to be regulated. The agency is in the best position to gauge the small entity impacts of its regulations.’’ 5 As discussed below, the Board believes its proposed rule will likely not have a significant economic impact on a substantial number of small entities but is not certain. The Board assumes for purposes of this analysis that a substantial number of small employers and small entity labor unions will be impacted by this rule because at a minimum, they will need to review and understand the effect of the proposed standard as it relates to undergraduate and graduate students who perform services for compensation in connection with their studies. Additionally, there may be compliance costs that are unknown to the Board. 1 E.O. 13272, Sec. 1, 67 FR 53461 (‘‘Proper Consideration of Small Entities in Agency Rulemaking’’). 2 Under the RFA, the term ‘‘small entity’’ has the same meaning as ‘‘small business,’’ ‘‘small organization,’’ and ‘‘small governmental jurisdiction.’’ 5 U.S.C. 601(6). 3 5 U.S.C. 605(b). 4 5 U.S.C. 601. 5 Small Business Administration Office of Advocacy, ‘‘A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act’’ (‘‘SBA Guide’’) at 18, https://www.sba.gov/ sites/default/files/advocacy/How-to-Comply-withthe-RFA-WEB.pdf. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 55265 For these reasons, the Board has elected to prepare an IRFA to provide the public the fullest opportunity to comment on the proposed rule.6 An IRFA describes why an action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities.7 An IRFA also presents an opportunity for the public to provide comments that will shed light on impacted entities and potential compliance costs that are unknown to the Board or on any other part of the IRFA. Detailed descriptions of this proposed rule, its purpose, objectives, and the legal basis are contained in the SUMMARY and SUPPLEMENTAL INFORMATION sections of the Notice of Proposed Rulemaking. See 84 FR 49691. In brief, the proposed rule states that students who perform any services, including teaching or research assistance, at a private college or university related to their studies are not statutory employees subject to jurisdiction of the Board. The Board has concluded that this rule—providing that undergraduate and graduate students performing services in connection with their studies are not statutory employees—is more consistent with the purposes and policies of the National Labor Relations Act (Act or NLRA), which contemplates jurisdiction over economic relationships not those that are primarily educational in nature. B. Description and Estimate of Number of Small Entities to Which the Rule Applies To evaluate the impact of the proposed rule, the Board first identified the universe of small entities that could be impacted by the determination that students who perform services at a private college or university in connection with their studies are not statutory employees. The United States Census Bureau does not specifically define ‘‘small business’’ but does break down its data into firms with fewer than 6 After a review of the comments, the Board may elect to certify that the rule will not have a significant economic impact on a substantial number of small entities in the publication of the final rule. 5 U.S.C. 605(b). 7 5 U.S.C. 603(b). E:\FR\FM\16OCP1.SGM 16OCP1

Agencies

[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.

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

[[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.
---------------------------------------------------------------------------

    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