[House Report 105-650]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-650
_______________________________________________________________________


 
                TRADEMARK ANTICOUNTERFEITING ACT OF 1998

_______________________________________________________________________


 July 28, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Coble, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3891]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3891) to amend the Trademark Act of 1946 to prohibit 
the unauthorized destruction, modification, or alteration of 
product identification codes, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.


                           TABLE OF CONTENTS

                                                                   Page
The Amendment..............................................           2
Purpose and Summary........................................           5
Background and Need for the Legislation....................           5
Hearings...................................................           6
Committee Consideration....................................           6
Committee Oversight Findings...............................           6
Committee on Government Reform and Oversight Findings......           6
New Budget Authority and Tax Expenditures..................           6
Congressional Budget Office Cost Estimate..................           7
Constitutional Authority Statement.........................           8
Section-by-Section Analysis and Discussion.................           8
Changes in Existing Law Made by the Bill, as Reported......          10
Dissenting Views...........................................          16
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Trademark Anticounterfeiting Act of 
1998''.

SEC. 2. PROHIBITION AGAINST UNAUTHORIZED ALTERATION OF PRODUCT 
                    IDENTIFICATION CODES.

    (a) In General.--Title VIII of the Act entitled ``An Act to provide 
for the registration and protection of trade-marks used in commerce, to 
carry out the provisions of certain international conventions, and for 
other purposes.'', approved July 5, 1946 (commonly referred to as the 
``Lanham Act'' and the ``Trademark Act of 1946'') is amended by 
inserting after section 43 (15 U.S.C. 1125) the following:
      ``unauthorized modifications of product identification codes
    ``Sec. 43A. (a) Definitions.--In this section--
            ``(1) the term `consumer'--
                    ``(A) means--
                            ``(i) the ultimate user or purchaser of a 
                        good; or
                            ``(ii) any hotel, restaurant, or other 
                        provider of services that must remove or alter 
                        the container, label, or packaging of a good in 
                        order to make the good available to the 
                        ultimate user or purchaser; and
                    ``(B) does not include any retailer or other 
                distributor who acquires a good for resale;
            ``(2) the term `good' means any article, product, or 
        commodity that is customarily produced or distributed for sale, 
        rental, or licensing in interstate or foreign commerce, and any 
        container, packaging, label, or component thereof;
            ``(3) the term `manufacturer' includes the original 
        manufacturer of a good and a duly appointed agent or 
        representative of that manufacturer acting within the scope of 
        its agency or representation;
            ``(4) the term `product identification code'--
                    ``(A) includes any number, letter, symbol, marking, 
                date (including an expiration date), code, software, or 
                other technology that is affixed to or embedded in any 
                good, by which the manufacturer of the good may trace 
                the good back to a particular production lot or batch 
                or date of removal, or otherwise identify the source of 
                the good, the date of manufacture, the date of 
                expiration, or other comparable critical data; and
                    ``(B) does not include copyright management 
                information conveyed in connection with copies or 
                phonorecords of a copyrighted work or any performance 
                or display of a copyrighted work;
            ``(5) the term `Universal Product Code' refers to the 
        multidigit bar code and number representing goods in retail 
        applications; and
            ``(6) the term `value' means the face, par, or market 
        value, whichever is the greatest.
    ``(b) Prohibited Acts.--Except as otherwise authorized by Federal 
law, it shall be unlawful for any person, other than the consumer or 
the manufacturer of a good, knowingly and without authorization of the 
manufacturer--
            ``(1) to directly or indirectly alter, conceal, remove, 
        obliterate, deface, strip, or peel any product identification 
        code affixed to or embedded in that good;
            ``(2) to directly or indirectly affix or embed a product 
        identification code to or in that good which is intended by the 
        manufacturer for a different good, such that the code no longer 
        accurately identifies the source of the good;
            ``(3) to directly or indirectly affix to or embed in that 
        good any number, letter, symbol, marking, date, code, or other 
        technology intended to simulate a product identification code; 
        or
            ``(4) to import, export, sell, distribute, or broker that 
        good, the product identification code for which has been 
        altered, concealed, removed, obliterated, defaced, stripped, 
        peeled, affixed, or embedded in violation of paragraph (1) or 
        (2), or that bears an unauthorized number, letter, symbol, 
        marking, date, or other code in violation of paragraph (3).
    ``(c) Applicability.--The prohibitions set forth in subsection (b) 
shall apply to product identification codes (or simulated product 
identification codes in a case to 
which subsection (b)(3) applies) affixed to, or embedded in, any good 
held for sale or distribution in interstate or foreign commerce or 
after shipment therein.
    ``(d) Exclusion.--
            ``(1) UPC codes.--Nothing in this section prohibits a 
        retailer from affixing a Universal Product Code or other 
        electronic pricing code to a good if that code does not (or can 
        be removed so as not to) permanently alter, conceal, remove, 
        obliterate, deface, strip, or peel any product identification 
        code.
            ``(2) Repackaging for resale.--(A) Nothing in this section 
        prohibits a distributor from removing an article, product, or 
        commodity of retail sale from a shipping container and placing 
        such article, product, or commodity in another shipping 
        container for purpose of resale in a quantity different from 
        the quantity originally provided by the manufacturer or from 
        replacing a damaged shipping container, if, except as provided 
        in paragraph (1), such article, product, or commodity of retail 
        sale retains its original product identification code, without 
        any obstruction or alteration, and if--
                    ``(i) such distributor is registered with all 
                applicable Federal and State agencies;
                    ``(ii) such distributor repackages the article, 
                product, or commodity in full compliance with all 
                applicable State and Federal laws and regulations; and
                    ``(iii) the act of repackaging does not result in a 
                prohibited act under section 301 of the Federal Food, 
                Drug, and Cosmetic Act or violate any other applicable 
                State or Federal law or regulation.
            ``(B) As used in this paragraph, the term `shipping 
        container' means--
                    ``(i) a container or wrapping used for the 
                transportation of any article, product, or commodity in 
                bulk or in quantity to manufacturers, packers, or 
                processors, or to wholesale or retail distributors 
                thereof; and
                    ``(ii) containers or wrappings used by retailers to 
                ship or deliver any article, product, or commodity to 
                retail customers, if such containers and wrappings bear 
                no printed matter pertaining to any particular article, 
                product, or commodity.
    ``(e) Criminal Penalties.--Any person who willfully violates this 
section shall be punished as provided in section 1365A of title 18.
    ``(f) Civil Remedies.--
            ``(1) In general.--Any person who is injured by a violation 
        of this section, or threatened with such injury, may bring a 
        civil action in an appropriate United States district court 
        against the alleged violator.
            ``(2) Injunctions and impounding and disposition of 
        goods.--In any action under paragraph (1), the court may--
                    ``(A) grant 1 or more temporary, preliminary, or 
                permanent injunctions on such terms as the court 
                determines to be reasonable to prevent or restrain the 
                violation;
                    ``(B) at any time while the action is pending, 
                order the impounding, on such terms as the court 
                determines to be reasonable, of any good that is in the 
                custody or control of the alleged violator and that the 
                court has reasonable cause to believe was involved in 
                the violation; and
                    ``(C) as part of a final judgment or decree--
                            ``(i) order the destruction of any good 
                        involved in the violation that is in the 
                        custody or control of the violator or that has 
                        been impounded under subparagraph (B); or
                            ``(ii) if the court determines that any 
                        good impounded under subparagraph (B) is not 
                        unsafe or a hazard to health, dispose of the 
                        good by delivery to such Federal, State, or 
                        local government agencies as, in the opinion of 
                        the court, have a need for such good, or by 
                        gift to such charitable or nonprofit 
                        institutions as, in the opinion of the court, 
                        have a need for such good, if such disposition 
                        would not otherwise be in violation of law, and 
                        if the manufacturer consents to such 
                        disposition and is given the opportunity to 
                        reapply a product identification code to the 
                        good.
            ``(3) Damages.--
                    ``(A) In general.--Subject to subparagraph (B), in 
                any action under paragraph (1), the plaintiff shall be 
                entitled to recover the actual damages suffered by the 
                plaintiff as a result of the violation, and any profits 
                of the violator that are attributable to the violation 
                and are not taken into account in computing the actual 
                damages. In establishing the violator's profits, the 
                plaintiff shall be required to present proof only of 
                the violator's sales, and the violator shall be 
                required to prove all elements of cost or deduction 
                claimed.
                    ``(B) Statutory damages.--In any action under 
                paragraph (1), the plaintiff may elect, at any time 
                before final judgment is rendered, to recover, instead 
                of actual damages and profits described in subparagraph 
                (A), an award of statutory damages for any violation 
                under this section in an amount equal to--
                            ``(i) not less than $500 and not more than 
                        $100,000, with respect to each type of goods 
                        involved in the violation; and
                            ``(ii) if the violation threatens the 
                        health and safety of the public, as determined 
                        by the court, not less than $5,000 and not more 
                        than $1,000,000, with respect to each type of 
                        goods involved in the violation.
            ``(4) Costs and attorney's fees.--In any action under 
        paragraph (1)--
                    ``(A) in addition to any damages recovered under 
                paragraph (3), a prevailing plaintiff may recover the 
                full costs of the action; and
                    ``(B) the court, in its discretion, may also award 
                reasonable attorney fees to the prevailing party.
            ``(5) Repeat violations.--
                    ``(A) Treble damages.--In any case in which a 
                person violates this section within 3 years after the 
                date on which a final judgment was entered against that 
                person for a previous violation of this section, the 
                court, in an action brought under this subsection, may 
                increase the award of damages for the later violation 
                to not more than 3 times the amount that would 
                otherwise be awarded under paragraph (3), as the court 
                considers appropriate.
                    ``(B) Burden of proof.--A plaintiff that seeks 
                damages as described in subparagraph (A) shall bear the 
                burden of proving the existence of the earlier 
                violation.
            ``(6) Limitations on actions.--No civil action may be 
        commenced under this section later than 3 years after the date 
        on which the claimant discovers the violation.
            ``(7) Innocent violations.--In any action under paragraph 
        (1), the court in its discretion may reduce or remit the total 
        award of damages in any case in which the violator sustains the 
        burden of proving, and the court finds, that the violator was 
        not aware and had no reason to believe that the acts of the 
        violator constituted a violation.
    ``(g) Enforcement.--The Attorney General shall enforce this 
section.''.
    (b) Conforming Amendment.--The heading for title VIII of the Act of 
July 5, 1946, is amended by striking ``AND DILUTION'' and inserting 
``DILUTION, AND ADULTERATION OF PRODUCT CODES''.

SEC. 3. CRIMINAL PENALTIES.

    (a) In General.--Chapter 65 of title 18, United States Code, is 
amended by inserting after section 1365 the following:

``Sec. 1365A. Unauthorized modification of product identification codes

    ``(a) Criminal Penalties.--Any person who willfully violates 
section 43A of the Act of July 5, 1946 (commonly referred to as the 
`Trademark Act of 1946') shall--
            ``(1) be fined under this title, imprisoned not more than 1 
        year, or both;
            ``(2) if the total retail value of the good or goods 
        involved in the violation is greater than $5,000, be fined 
        under this title, imprisoned not more than 5 years, or both;
            ``(3) if the person acts with reckless disregard for the 
        risk that the health or safety of the public would be 
        threatened and under circumstances manifesting extreme 
        indifference to such risk, and the violation threatens the 
        health or safety of the public, be fined under this title, 
        imprisoned not more than 10 years, or both;
            ``(4) if the person acts with reckless disregard for the 
        risk that another person will be placed in danger of death or 
        bodily injury and under circumstances manifesting extreme 
        indifference to such risk and--
                    ``(A) serious bodily injury to any individual 
                results, be fined under this title, imprisoned not more 
                than 20 years, or both; or
                    ``(B) death of an individual results, be fined 
                under this title, imprisoned for any term of years or 
                for life, or both; and
            ``(5) with respect to any second or subsequent violation, 
        be subject to twice the maximum term of imprisonment that would 
        otherwise be imposed under this subsection, fined under this 
        title, or both.
    ``(b) Injunctions and Impounding, Forfeiture, and Disposition of 
Goods.--
            ``(1) Injunctions and impounding.--In any prosecution under 
        this section, upon motion of the United States, the court may--
                    ``(A) grant 1 or more temporary, preliminary, or 
                permanent injunctions on such terms as the court 
                determines to be reasonable to prevent or restrain the 
                alleged violation; and
                    ``(B) at any time during the proceedings, order the 
                impounding, on such terms as the court determines to be 
                reasonable, of any good that is in the custody or 
                control of the defendant and that the court has 
                reasonable cause to believe was involved in the 
                violation.
            ``(2) Forfeiture and disposition of goods.--Upon conviction 
        of any person of a violation of this section, the court shall--
                    ``(A) order the forfeiture of any good involved in 
                the violation that is in the custody or control of the 
                defendant or that has been impounded under paragraph 
                (1)(B); and
                    ``(B) either--
                            ``(i) order the destruction of each good 
                        forfeited under subparagraph (A); or
                            ``(ii) if the court determines that any 
                        good forfeited under subparagraph (A) is not 
                        unsafe or a hazard to health, dispose of the 
                        good by delivery to such Federal, State, or 
                        local government agencies as, in the opinion of 
                        the court, have a need for such good, or by 
                        gift to such charitable or nonprofit 
                        institutions as, in the opinion of the court, 
                        have a need for such good, if such disposition 
                        would not otherwise be in violation of law and 
                        if the manufacturer consents to such 
                        disposition and is given the opportunity to 
                        reapply a product identification code to the 
                        good.''.
    (b) Conforming Amendment.--The table of sections for chapter 65 of 
title 18, United States Code, is amended by inserting after the item 
relating to section 1365 the following:

``1365A. Unauthorized modification of product identification codes.''.

SEC. 4. ATTORNEY GENERAL REPORTING REQUIREMENTS.

    Section 2320(f) of title 18, United States Code, is amended--
            (1) by inserting ``unauthorized modification of product 
        identification codes under section 1365A,'' after ``involve''; 
        and
            (2) in paragraph (4), by inserting ``1365A,'' after 
        ``sections''.

                          Purpose and Summary

    The purpose of H.R. 3891, the ``Trademark 
Anticounterfeiting Act of 1998,'' is to safeguard the ability 
of manufacturers to control the use of their products with 
which valuable marks are associated by protecting the integrity 
of corresponding ``product identification codes'' contained in 
product packaging.

                Background and Need for the Legislation

    Manufacturers often require distributors to comply with 
detailed instructions as to how and where their product will be 
packaged, shipped, and sold. This is done for commercial or 
safety reasons, or both.
    For example, a brand manufacturer of perfume might want 
distributors to ship its product in green bottles to Latin 
America, and in blue bottles to the United States. The U.S.-
bound bottles would retail at a higher price and the blue 
packaging would, commercially speaking, project greater cachet 
in the collective mind of consumers. Under this scenario, the 
manufacturer would not want blue bottles diverted to Latin 
America where they might sell for less than the U.S. price but 
greater than that for (Latin market) green bottles.
    An illustration of why a manufacturer would want to control 
the ``routing'' of its product for safety reasons might involve 
expiration dates which are affixed to perishable items, such as 
pharmaceuticals or food. Any attempt to change or remove an 
expiration date for sale in a different market or to preserve 
shelf life in the manufacturer's designated market could lead 
to illness or death. Similarly, forensic investigator also rely 
on product coding when performing their work to solve crimes, 
including those related to terrorist acts.
    While existing law has enabled authorities to prosecute 
individuals who engage in trademark counterfeiting, 
counterfeiters have responded by becoming more organized, 
sophisticated, and aggressive. A favored tactic which they now 
employ is to form alliances among themselves, unscrupulous 
diverters at the wholesale or distributor level, and organized 
retail thieves. The alliances are symbiotic, since 
counterfeiters need the diverters who provide ``cover'' in the 
event an inappropriate diversion scheme is exposed. 
Specifically, a counterfeiter will ``salt'' a diverter's 
inventory with counterfeit goods, then argue that it never 
intended to defraud consumers as diversion is technically 
legal. Diverters, on the other hand, need the counterfeiters, 
particularly in cases of product decoding, because successful 
diversion often necessitates an effort to manipulate the 
product code and, occasionally, to counterfeit the product 
coding. As such, H.R. 3891 is a necessary complement to 
existing federal law on this subject.

                                Hearings

    The Committee's Subcommittee on Courts and Intellectual 
Property held a hearing on H.R. 3891 on May 21, 1998. Testimony 
was received from four witnesses, representing four 
organizations.

                        Committee Consideration

    On June 4, 1998, the Subcommittee on Courts and 
Intellectual Property met in open session and ordered reported 
the bill H.R. 3891, as amended, by voice vote, a quorum being 
present. On July 16, 1998, the Committee met in open session 
and ordered reported favorably the bill H.R. 3891 with an 
amendment, by voice vote, a quorum being present.

                      Committee Oversight Findings

    In compliance with clause 2(1)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(1)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(1)(3)(B) of rule XI of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(1)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 3891, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budge Act of 1974:
                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 22, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3891, the 
Trademark Anticounterfeiting Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman, who can be reached at 226-2860.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

    cc: Hon. John Conyers, Jr.,
         Ranking Minority Member.
H.R. 3891--Trademark Anticounterfeiting Act of 1998
    CBO estimates that enacting H.R. 3891 would not result in 
any significant cost to the federal government. Enactment of 
H.R. 3891 could affect direct spending and receipts, so pay-as-
you-go procedures would apply to the bill. However, CBO 
estimates that any impact on direct spending and receipts would 
not be significant. H.R. 3891 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no costs on state, local, or tribal 
governments.
    Enacting H.R. 3891 would make it a federal crime to alter 
or remove product identification codes on any goods or 
packaging sold in interstate or foreign commerce. Under current 
law, only certain goods, such as pharmaceuticals and medical 
devices, are protected from code tampering. The bill also would 
provide for criminal penalties, imprisonment, the seizure of 
certain goods, and civil remedies for those injured by such 
tampering.
    Because those prosecuted and convicted of altering a 
product identification code could be subject to fines, the 
government might collect additional fines if H.R. 3891 is 
enacted. Collections of such fines are recorded in the budget 
as governmental receipts (revenues), which are deposited in the 
Crime Victims Fund and spent in the following year. Any such 
collections and spending are likely to be negligible, however, 
because few cases are likely to arise under this bill. H.R. 
3891 would also result in little or no change in the amount of 
receipts deposited in the Assets Forfeiture Fund.
    Finally, CBO estimates that any additional burden placed on 
the federal court system or the federal prison system would not 
result in any additional significant costs. Any additional 
costs would be subject to the availability of appropriated 
funds.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman, who can be reached at 226-2860. This estimate was 
approved by Paul N. Van de Water, Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to rule XI, clause 2(1)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article One, clause eight, section eight of 
the Constitution.

               Section-By-Section Analysis and Discussion

                           General Discussion

    Representative Goodlatte introduced H.R.3891, the 
``Trademark Anticounterfeiting Act of 1998,'' on May 19, 1998. 
It is intended to safeguard the ability of a brand manufacturer 
to control, to some extent, the use of its product by 
protecting the integrity of corresponding ``product 
identification codes.'' These codes--a number, letter, symbol, 
or expiration marking that is affixed to a good--enable the 
manufacturer to trace a product back to its particular 
production lot, batch, or date of removal.

                           Sectional Analysis

    Section One. Short Title. Section One contains the short 
title of the bill, the ``Trademark Anticounterfeiting Act of 
1998.''
    Section Two. Alteration of Product Identification Codes. 
Section Two creates a new Sec. 43A of the Lanham Act \1\ which 
proscribes the unauthorized modification of product 
identification codes. More specifically, the section specifies 
that no person, other than the consumer or manufacturer of a 
good, may knowingly and without authorization of the 
manufacturer tamper with a product identification code affixed 
to that good. Examples of tampering include alteration, 
concealment, removal, or obliteration.
---------------------------------------------------------------------------
    \1\ 15 U.S.C. Sec. 1051, et seq.
---------------------------------------------------------------------------
    In addition, the section forbids anyone, knowingly and 
without authorization of the manufacturer, to switch a product 
identification code from one good to another; to produce fake 
product identification codes; or to sell, import, distribute, 
or broker a good that bears a tainted product identification 
code.
    The new Sec. 43A(d) of the Lanham Act created in Section 
Two establishes certain exclusions that are designed to protect 
retailers or distributors who repackage certain goods for 
resale. First, this provision enables a retailer or distributor 
to affix a Universal Product Code (UPC) or other electronic 
pricing code to a good so long as it does not (or can be 
removed so as not to) permanently alter, conceal, remove, 
obliterate, deface, strip, or peel any product identification 
code.
    Second, Representative Wexler offered an amendment, which 
the Committee adopted by voice vote, to protect the act of 
legitimate repackaging of goods for resale. More specifically, 
this exclusion states that a distributor may (1) remove a 
product from a shipping container and place the product in 
another shipping container for resale in a quantity different 
from that originally provided by the manufacturer, or (2) 
replace a damaged shipping container, so long as the product 
retains its original identification code without any 
obstruction or alteration. In addition, the distributor must be 
registered with all applicable state and federal agencies; 
comply with any applicable state and federal laws and 
regulations; and not engage in repackaging that results in 
violations of the Federal Food, Drug, and Cosmetic Act or other 
applicable law.
    Section Two also enumerates civil remedies for persons 
harmed by a third party who indulges in the conduct proscribed 
by the bill. An injured party is given the right to bring a 
suit for damages in the appropriate U.S. District Court. In 
such an action, the court may grant injunctive relief against a 
defendant and impound those goods under the custody or control 
of the defendant. As part of a final judgment, a court could 
order the destruction of the goods, and, if the plaintiff 
consents, donate the goods to charity.
    The section further prescribes compensatory and statutory 
damages available to an aggrieved plaintiff. These include 
actual damages, as well as any profits resulting from a 
violation that were not taken into account when computing 
actual damages. In lieu of such an award , a plaintiff may opt 
for statutory damages defined in the following amounts: (1) not 
more than $500 and not more than $100,000 with respect to each 
type of goods involved in a violation; and (2) not less than 
$5,000 and not more than $1,000,000 with respect to each type 
of goods involved in a violation which threatens the health and 
safety of the public as determined by the court.
    As noted, the Subcommittee on Courts and Intellectual 
Property passed amendments en bloc, which, among other things, 
created an innocent infringer exception to the bill. Pursuant 
to this provision, a court in its discretion may reduce or 
remit the total award of damages in any case in which the 
violator sustains the burden of proving (and the court finds) 
that the violator was not aware and had no reason to believe 
that the acts of the violator constituted a violation.
    Attorneys's fees are also recoverable under the bill, and a 
court may award treble damages in any case in which a violation 
occurs within three years of a final judgment in a previous 
case.
    The statute of limitations for bringing these actions is no 
later than three years after the date on which the claimant 
discovered the violation.
    Finally, Section Two authorizes the Attorney General to 
enforce the provisions of the section.
    Section Three. Criminal Penalties. Section Three prescribes 
criminal penalties for violations occurring under new Sec. 43A 
of the Lanham Act.\2\ Any person who willfully violates the new 
section shall--
---------------------------------------------------------------------------
    \2\ Id.
---------------------------------------------------------------------------
          1. be find under Title 18 of the U.S. Code, 
        imprisoned not more than one year, or both;
          2. if the total retail value of the goods involved in 
        the violation is greater than $5,000, be fined under 
        Title 18, imprisoned not more than five years, or both;
          3. if the person acts with reckless disregard, 
        thereby posing a risk to public health and safety, and 
        manifests extreme indifference to such risk, and the 
        violation threatens the public health and safety, be 
        fined under Title 18, imprisoned not more than 10 years 
        , or both;
          4. if the person acts with reckless disregard for the 
        risk that another person will be placed in danger of 
        death or bodily injury and under circumstances 
        manifesting extreme difference to such risk and (a) 
        serious bodily injury results, be fined under Title 18, 
        imprisoned not more than 20 years, or both; or (b) 
        death of an individual results, be fined under Title 
        18, imprisoned for any term of years or for life, or 
        both; and
          5. with respect to a second or any subsequent 
        violation, be subject to twice the maximum term of 
        imprisonment that would otherwise be imposed under this 
        subsection of the bill, fined under Title 18, or both.
    Section Three also expounds upon the authority of a U.S. 
District Court to offer injunctive relief, and to impound, 
destroy, or donate tainted goods to charity.
    Section Four: Attorney General Reporting Requirements. 
Section Four authorizes the Attorney General to add ``criminal 
tampering with product identification code'' as a new category 
of federal cases, the status of which are annually reported to 
Congress for review.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                          ACT OF JULY 5, 1946

  (Commonly referred to as the ``Lanham Act'' and ``Trademark Act of 
                                1946'')

 AN ACT To provide for the registration and protection of trade-marks 
used in commerce, to carry out the provisions of certain international 
conventions, and for other purposes.

           *       *       *       *       *       *       *


  TITLE VIII--FALSE DESIGNATIONS OF ORIGIN, FALSE DESCRIPTIONS, [AND 
DILUTION] DILUTION, AND ADULTERATION OF PRODUCT CODES FORBIDDEN

           *       *       *       *       *       *       *



       unauthorized modifications of product identification codes


    Sec. 43A. (a) Definitions.--In this section--
            (1) the term ``consumer''--
                    (A) means--
                            (i) the ultimate user or purchaser 
                        of a good; or
                            (ii) any hotel, restaurant, or 
                        other provider of services that must 
                        remove or alter the container, label, 
                        or packaging of a good in order to make 
                        the good available to the ultimate user 
                        or purchaser; and
                    (B) does not include any retailer or other 
                distributor who acquires a good for resale;
            (2) the term ``good'' means any article, product, 
        or commodity that is customarily produced or 
        distributed for sale, rental, or licensing in 
        interstate or foreign commerce, and any container, 
        packaging, label, or component thereof;
            (3) the term ``manufacturer'' includes the original 
        manufacturer of a good and a duly appointed agent or 
        representative of that manufacturer acting within the 
        scope of its agency or representation;
            (4) the term ``product identification code''--
                    (A) includes any number, letter, symbol, 
                marking, date (including an expiration date), 
                code, software, or other technology that is 
                affixed to or embedded in any good, by which 
                the manufacturer of the good may trace the good 
                back to a particular production lot or batch or 
                date of removal, or otherwise identify the 
                source of the good, the date of manufacture, 
                the date of expiration, or other comparable 
                critical data; and
                    (B) does not include copyright management 
                information conveyed in connection with copies 
                or phonorecords of a copyrighted work or any 
                performance or display of a copyrighted work;
            (5) the term ``Universal Product Code'' refers to 
        the multidigit bar code and number representing goods 
        in retail applications; and
            (6) the term ``value'' means the face, par, or 
        market value, whichever is the greatest.
    (b) Prohibited Acts.--Except as otherwise authorized by 
Federal law, it shall be unlawful for any person, other than 
the consumer or the manufacturer of a good, knowingly and 
without authorization of the manufacturer--
            (1) to directly or indirectly alter, conceal, 
        remove, obliterate, deface, strip, or peel any product 
        identification code affixed to or embedded in that 
        good;
            (2) to directly or indirectly affix or embed a 
        product identification code to or in that good which is 
        intended by the manufacturer for a different good, such 
        that the code no longer accurately identifies the 
        source of the good;
            (3) to directly or indirectly affix to or embed in 
        that good any number, letter, symbol, marking, date, 
        code, or other technology intended to simulate a 
        product identification code; or
            (4) to import, export, sell, distribute, or broker 
        that good, the product identification code for which 
        has been altered, concealed, removed, obliterated, 
        defaced, stripped, peeled, affixed, or embedded in 
        violation of paragraph (1) or (2), or that bears an 
        unauthorized number, letter, symbol, marking, date, or 
        other code in violation of paragraph (3).
    (c) Applicability.--The prohibitions set forth in 
subsection (b) shall apply to product identification codes (or 
simulated product identification codes in a case to which 
subsection (b)(3) applies) affixed to, or embedded in, any good 
held for sale or distribution in interstate or foreign commerce 
or after shipment therein.
    (d) Exclusion.--
            (1) UPC codes.--Nothing in this section prohibits a 
        retailer from affixing a Universal Product Code or 
        other electronic pricing code to a good if that code 
        does not (or can be removed so as not to) permanently 
        alter, conceal, remove, obliterate, deface, strip, or 
        peel any product identification code.
            (2) Repackaging for resale.--(A) Nothing in this 
        section prohibits a distributor from removing an 
        article, product, or commodity of retail sale from a 
        shipping container and placing such article, product, 
        or commodity in another shipping container for purpose 
        of resale in a quantity different from the quantity 
        originally provided by the manufacturer or from 
        replacing a damaged shipping container, if, except as 
        provided in paragraph (1), such article, product, or 
        commodity of retail sale retains its original product 
        identification code, without any obstruction or 
        alteration, and if--
                    (i) such distributor is registered with all 
                applicable Federal and State agencies;
                    (ii) such distributor repackages the 
                article, product, or commodity in full 
                compliance with all applicable State and 
                Federal laws and regulations; and
                    (iii) the act of repackaging does not 
                result in a prohibited act under section 301 of 
                the Federal Food, Drug, and Cosmetic Act or 
                violate any other applicable State or Federal 
                law or regulation.
            (B) As used in this paragraph, the term ``shipping 
        container'' means--
                    (i) a container or wrapping used for the 
                transportation of any article, product, or 
                commodity in bulk or in quantity to 
                manufacturers, packers, or processors, or to 
                wholesale or retail distributors thereof; and
                    (ii) containers or wrappings used by 
                retailers to ship or deliver any article, 
                product, or commodity to retail customers, if 
                such containers and wrappings bear no printed 
                matter pertaining to any particular article, 
                product, or commodity.
    (e) Criminal Penalties.--Any person who willfully violates 
this section shall be punished as provided in section 1365A of 
title 18.
    (f) Civil Remedies.--
            (1) In general.--Any person who is injured by a 
        violation of this section, or threatened with such 
        injury, may bring a civil action in an appropriate 
        United States district court against the alleged 
        violator.
            (2) Injunctions and impounding and disposition of 
        goods.--In any action under paragraph (1), the court 
        may--
                    (A) grant 1 or more temporary, preliminary, 
                or permanent injunctions on such terms as the 
                court determines to be reasonable to prevent or 
                restrain the violation;
                    (B) at any time while the action is 
                pending, order the impounding, on such terms as 
                the court determines to be reasonable, of any 
                good that is in the custody or control of the 
                alleged violator and that the court has 
                reasonable cause to believe was involved in the 
                violation; and
                    (C) as part of a final judgment or decree--
                            (i) order the destruction of any 
                        good involved in the violation that is 
                        in the custody or control of the 
                        violator or that has been impounded 
                        under subparagraph (B); or
                            (ii) if the court determines that 
                        any good impounded under subparagraph 
                        (B) is not unsafe or a hazard to 
                        health, dispose of the good by delivery 
                        to such Federal, State, or local 
                        government agencies as, in the opinion 
                        of the court, have a need for such 
                        good, or by gift to such charitable or 
                        nonprofit institutions as, in the 
                        opinion of the court, have a need for 
                        such good, if such disposition would 
                        not otherwise be in violation of law, 
                        and if the manufacturer consents to 
                        such disposition and is given the 
                        opportunity to reapply a product 
                        identification code to the good.
            (3) Damages.--
                    (A) In general.--Subject to subparagraph 
                (B), in any action under paragraph (1), the 
                plaintiff shall be entitled to recover the 
                actual damages suffered by the plaintiff as a 
                result of the violation, and any profits of the 
                violator that are attributable to the violation 
                and are not taken into account in computing the 
                actual damages. In establishing the violator's 
                profits, the plaintiff shall be required to 
                present proof only of the violator's sales, and 
                the violator shall be required to prove all 
                elements of cost or deduction claimed.
                    (B) Statutory damages.--In any action under 
                paragraph (1), the plaintiff may elect, at any 
                time before final judgment is rendered, to 
                recover, instead of actual damages and profits 
                described in subparagraph (A), an award of 
                statutory damages for any violation under this 
                section in an amount equal to--
                            (i) not less than $500 and not more 
                        than $100,000, with respect to each 
                        type of goods involved in the 
                        violation; and
                            (ii) if the violation threatens the 
                        health and safety of the public, as 
                        determined by the court, not less than 
                        $5,000 and not more than $1,000,000, 
                        with respect to each type of goods 
                        involved in the violation.
            (4) Costs and attorney's fees.--In any action under 
        paragraph (1)--
                    (A) in addition to any damages recovered 
                under paragraph (3), a prevailing plaintiff may 
                recover the full costs of the action; and
                    (B) the court, in its discretion, may also 
                award reasonable attorney fees to the 
                prevailing party.
            (5) Repeat violations.--
                    (A) Treble damages.--In any case in which a 
                person violates this section within 3 years 
                after the date on which a final judgment was 
                entered against that person for a previous 
                violation of this section, the court, in an 
                action brought under this subsection, may 
                increase the award of damages for the later 
                violation to not more than 3 times the amount 
                that would otherwise be awarded under paragraph 
                (3), as the court considers appropriate.
                    (B) Burden of proof.--A plaintiff that 
                seeks damages as described in subparagraph (A) 
                shall bear the burden of proving the existence 
                of the earlier violation.
            (6) Limitations on actions.--No civil action may be 
        commenced under this section later than 3 years after 
        the date on which the claimant discovers the violation.
            (7) Innocent violations.--In any action under 
        paragraph (1), the court in its discretion may reduce 
        or remit the total award of damages in any case in 
        which the violator sustains the burden of proving, and 
        the court finds, that the violator was not aware and 
        had no reason to believe that the acts of the violator 
        constituted a violation.
    (g) Enforcement.--The Attorney General shall enforce this 
section.

           *       *       *       *       *       *       *

                              ----------                              


TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *


PART I--CRIMES

           *       *       *       *       *       *       *


                     CHAPTER 65--MALICIOUS MISCHIEF

Sec.
1361.  Government property or contracts.
     * * * * * * *
1365A. Unauthorized modification of product identification codes.
     * * * * * * *

Sec. 1365A. Unauthorized modification of product identification codes

    (a) Criminal Penalties.--Any person who willfully violates 
section 43A of the Act of July 5, 1946 (commonly referred to as 
the ``Trademark Act of 1946'') shall--
            (1) be fined under this title, imprisoned not more 
        than 1 year, or both;
            (2) if the total retail value of the good or goods 
        involved in the violation is greater than $5,000, be 
        fined under this title, imprisoned not more than 5 
        years, or both;
            (3) if the person acts with reckless disregard for 
        the risk that the health or safety of the public would 
        be threatened and under circumstances manifesting 
        extreme indifference to such risk, and the violation 
        threatens the health or safety of the public, be fined 
        under this title, imprisoned not more than 10 years, or 
        both;
            (4) if the person acts with reckless disregard for 
        the risk that another person will be placed in danger 
        of death or bodily injury and under circumstances 
        manifesting extreme indifference to such risk and--
                    (A) serious bodily injury to any individual 
                results, be fined under this title, imprisoned 
                not more than 20 years, or both; or
                    (B) death of an individual results, be 
                fined under this title, imprisoned for any term 
                of years or for life, or both; and
            (5) with respect to any second or subsequent 
        violation, be subject to twice the maximum term of 
        imprisonment that would otherwise be imposed under this 
        subsection, fined under this title, or both.
    (b) Injunctions and Impounding, Forfeiture, and Disposition 
of Goods.--
            (1) Injunctions and impounding.--In any prosecution 
        under this section, upon motion of the United States, 
        the court may--
                    (A) grant 1 or more temporary, preliminary, 
                or permanent injunctions on such terms as the 
                court determines to be reasonable to prevent or 
                restrain the alleged violation; and
                    (B) at any time during the proceedings, 
                order the impounding, on such terms as the 
                court determines to be reasonable, of any good 
                that is in the custody or control of the 
                defendant and that the court has reasonable 
                cause to believe was involved in the violation.
            (2) Forfeiture and disposition of goods.--Upon 
        conviction of any person of a violation of this 
        section, the court shall--
                    (A) order the forfeiture of any good 
                involved in the violation that is in the 
                custody or control of the defendant or that has 
                been impounded under paragraph (1)(B); and
                    (B) either--
                            (i) order the destruction of each 
                        good forfeited under subparagraph (A); 
                        or
                            (ii) if the court determines that 
                        any good forfeited under subparagraph 
                        (A) is not unsafe or a hazard to 
                        health, dispose of the good by delivery 
                        to such Federal, State, or local 
                        government agencies as, in the opinion 
                        of the court, have a need for such 
                        good, or by gift to such charitable or 
                        nonprofit institutions as, in the 
                        opinion of the court, have a need for 
                        such good, if such disposition would 
                        not otherwise be in violation of law 
                        and if the manufacturer consents to 
                        such disposition and is given the 
                        opportunity to reapply a product 
                        identification code to the good.

           *       *       *       *       *       *       *


CHAPTER 113--STOLEN PROPERTY

           *       *       *       *       *       *       *


Sec. 2320. Trafficking in counterfeit goods or services

    (a) * * *

           *       *       *       *       *       *       *

    (f) Beginning with the first year after the date of 
enactment of this subsection, the Attorney General shall 
include in the report of the Attorney General to Congress on 
the business of the Department of Justice prepared pursuant to 
section 522 of title 28, an accounting, on a district by 
district basis, of the following with respect to all actions 
taken by the Department of Justice that involve unauthorized 
modification of product identification codes under section 
1365A, trafficking in counterfeit labels for phonorecords, 
copies of computer programs or computer program documentation 
or packaging, copies of motion pictures or other audiovisual 
works (as defined in section 2318 of title 18), criminal 
infringement of copyrights (as defined in section 2319 of title 
18), unauthorized fixation of and trafficking in sound 
recordings and music videos of live musical performances (as 
defined in section 2319A of title 18), or trafficking in goods 
or services bearing counterfeit marks (as defined in section 
2320 of title 18):
            (1)  * * *

           *       *       *       *       *       *       *

            (4) The number and outcome, including settlements, 
        sentences, recoveries, and penalties, of all 
        prosecutions brought under sections 1365A, 2318, 2319, 
        2319A, and 2320 of title 18.

           *       *       *       *       *       *       *


        Dissenting Views of Hon. Charles E. Schumer on H.R. 3891

    I strongly oppose H.R. 3891 as presently drafted, and I 
believe a majority of the Congress will oppose it once its 
effects on the retail sector become widely understood. In my 
view, this legislation would be devastating to consumers 
seeking quality products at discount prices.
    H.R. 3891 will have a substantial negative impact on the 
U.S. economy. It will preclude millions of dollars in 
legitimate sales. Numerous products presently available at 
discount prices will disappear from discount shelves. Consumer 
prices will rise and jobs will be lost among retailers, 
distributors and importers.
    Furthermore, H.R. 3891 will place additional burdens on law 
enforcement and on the courts. The legislation, however, 
provides no funding for these additional enforcement 
responsibilities.

          1. H.R. 3891 DOES NOTHING TO STOP COUNTERFEIT GOODS.

    H.R. 3891 is apparently intended to eliminate counterfeit 
goods from the marketplace. I support this objective, but find 
nothing in the bill to further that goal. Despite the fact that 
it is named the ``Trademark Anticounterfeiting Act,'' this 
legislation does not prohibit or discourage the manufacture, 
sale or distribution of counterfeit goods, nor does it punish 
the use of phony product identification codes. Instead, it 
prohibits the removal of genuine product identification codes 
from products. Because the bill deals only with the removal of 
genuine manufacturer codes, by definition it can have no effect 
on stopping or discouraging counterfeit goods.

    2. H.R. 3891 IS DIRECTED AT STOPPING SALES BY DISCOUNT RETAILERS

    The true effect of H.R. 3891 will be to limit the 
distribution of genuine goods in discount stores. Brand-name 
products are often sold in what is called the ``parallel 
market'' or the ``gray market.'' This legitimacy of this multi-
billion dollar market, which encompasses a wide variety of 
products (such as cameras, clothing, electronic products, 
perfume and watches) has been upheld by the federal courts on 
numerous occasions--most recently by the Supreme Court in March 
of this year.\1\ The parallel market results in savings to 
American consumers amounting to billions of dollars a year.\2\
---------------------------------------------------------------------------
    \1\ See Quality King Distributors, Inc. v. L'anza Research Int'l, 
Inc., 140 L. Ed. 2d 254 (1998) (rejecting challenge to parallel market 
under copyright law); see also Kmart v. Cartier, 486 U.S. 281 (1987) 
(rejecting challenge to parallel market under trademark law).
    \2\ See, e.g., Weigh Demanding Mandate for Imports, 62 Chain Store 
Age Executive 66 (Nov. 1986) (``[C]onsumers realize billions of dollars 
savings annually through the purchase of . . . `parallel imports'.''); 
There are Still Many Gray Areas with Parallel Importing, 31 Discount 
Store News, No. 10, at 16 (May 18, 1992) (``By preventing foreign 
manufacturers from monopolizing the distribution of their products to 
U.S. retailers, defenders of parallel or `gray market' imports were 
responsible for increasing the buying power of U.S. consumers by 
billions of dollars over the past decade.''); AGMC Takes `Gray Market' 
Offensive, 23 Discount Store News, 3 (Nov. 12, 1984); (``[Association 
of General Merchandise Chains] conceded that `parallel imports 
constitute at retail a multi-billion dollar industry'.''); K-Mart Asks 
the Supreme Court to Preserve the Gray Market, 25 Discount Store News 1 
(Oct. 27, 1986) (``[Kmart] warned that `American consumers will 
annually pay hundreds of millions of dollars in fixed retail price 
overcharges to foreign manufacturers' if the [parallel market] is 
closed.'').
---------------------------------------------------------------------------
    Even though the parallel market is completely legal and 
benefits consumers, some product manufacturers appear to 
believe that the parallel market is not in their interest. In 
an effort to keep their products out of discount stores, some 
manufacturers place codes on the products. These codes enable 
the manufacturer to trace the chain of distribution of a 
particular item; the manufacturer can then retaliate against 
distributors that sell goods into the parallel market.
    The ultimate goal of these manufacturers is to control the 
final retail price of their products. When done explicitly, 
this practice, known as ``resale price maintenance,'' has been 
plainly illegal under antitrust laws since 1908. The reason 
resale price maintenance is illegal is because we want retail 
outlets to compete on price--that competition yields the best 
deals for consumers. Manufacturers' use of product 
identification codes to cut off access to the parallel market 
is simply resale price maintenance in disguise. We should not 
change federal law to assist manufacturers in this anti-
consumer practice--yet that is precisely what H.R. 3891 would 
do.

                     3. H.R. 3891 IS FAR TOO BROAD

    The proponents of this bill have claimed that it will 
protect consumers by assisting in the recall of defective 
merchandise. If this is the purpose, the bill can easily be 
limited to products which implicate real public health and 
safety concerns, such as food, medicine and products for 
children (like car seats and baby pajamas). Alternatively (or 
in addition), parallel market resellers could be given some of 
the responsibility for enabling recalls. Both of these ideas 
are worth exploring.
    But instead of these sensible, targeted approaches, the 
bill as written is astonishingly sweeping. It covers any 
product sold in the U.S.--from books to clothing to furniture. 
No reason whatever has been articulated for including these 
everyday, non-danger-threatening products within the scope of 
the bill.
    The legislation also defines product identification codes 
very broadly to include ``any number, letter, symbol, mark, 
date (including an expiration date), code, software or other 
technology'' but fails to specify the quantity, placement or 
format of the product identification codes. As a result, the 
reseller will have no way to determine upon looking at a 
product which codes or markings constitute a product 
identification code. This will create a huge burden on the 
legitimate reseller to either reproduce every code or mark on a 
product in repackaging the product or to run the risk of being 
charged for civil and criminal violations. The language of H.R. 
3891 is far too vague and it needs to be refined.
    In addition, the bill addresses a problem that is already 
addressed by other, more comprehensive statutes. Numerous laws 
already regulate the marking of products which are of special 
concern for public safety. Some of these laws include:
          Federal Food, Drug & Cosmetic Act (21 U.S.C. 
        Sec. Sec. 301 et seq.) (particularly sections 
        331(adulteration and misbranding), 333 (provides for 
        seizure of adulterated drugs or cosmetics), 342 (false 
        or misleading labels), 350a (regulates infant formula), 
        351-352 (adulterated or misbranded drugs or devices), 
        361-362 (adulterated or misbranded cosmetics.)
          Federal Meat Inspection Act (21 U.S.C. Sec. Sec. 601 
        et. Sep.) Civil and criminal penalties for misbranding 
        or adulteration of foodstuff.
          Tariff Act of 1930 (19 U.S.C. Sec. Sec. 1300 et seq.) 
        Marking of imported articles.
          Lanham Act (15 U.S.C. Sec. Sec. 1051 et seq.) 
        Provides protection against unauthorized reproduction 
        or imitation of copyrighted works.
          Anticounterfeiting Consumer Protection Consumer 
        Protection Act of 1996 (15 U.S.C. Sec. Sec. 1116-1117; 
        18 U.S.C. Sec. 2320) Allows use of Racketeer Influenced 
        and Corrupt Organizations (RICO) remedies against 
        counterfeiters.
          Consumer Product Safety Act (15 U.S.C. Sec. Sec. 2051 
        et seq.) Particularly Sec. 2063 (governs consumer 
        safety certification and labeling).

                 4. H.R. 3891 BURDENS PUBLIC RESOURCES

    Finally, H.R. 3891 would impose broad new burdens on law 
enforcement and the judiciary. By failing to provide a 
transition period, this law would render billions of dollars 
worth of merchandise illegal overnight. The avalanche of 
litigation that is likely to follow between manufacturers and 
resellers and between retailers and their suppliers is likely 
to be enormous due to the broad impact of this bill on the U.S. 
marketplace.
    Further, the legislation criminalizes the act of decoding 
products and mandates the seizure and destruction of these 
decoded products. Presumably, the burden of investigating and 
prosecuting such acts of decoding will fall to our law 
enforcement agencies. No funding has been allocated to defray 
the extra burden on these agencies or to employ additional 
personnel.

                               Conclusion

    By ordering H.R. 3891 reported in its present form, the 
majority has failed to give adequate hearing to the many 
parties that will be affected by this bill. In its present 
form, the bill will result in serious unforeseen hardships to 
consumers and businesses alike.
    I strongly urge that this bill be amended to avoid the 
negative consequences I have described. If the bill is meant to 
avoid counterfeiting, then it should not apply to genuine 
products. If the bill seeks to address the issue of consumer 
protection in recalls, then it should do so without granting a 
limited group of product manufacturers broad anti-competitive 
powers.

                                   Charles E. Schumer.

                                
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