[Federal Register Volume 63, Number 48 (Thursday, March 12, 1998)]
[Rules and Regulations]
[Pages 11996-12000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6183]


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DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Part 133

[T.D. 98-21]
RIN 1515-AB28


Copyright/Trademark/Trade Name Protection; Disclosure of 
Information

AGENCY: Customs Service, Treasury.

ACTION: Final rule.

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SUMMARY: This document amends the Customs Regulations to allow Customs 
to provide to intellectual property rights (IPR) owners sample 
merchandise and to disclose to IPR owners certain information regarding 
the identity of persons involved with importing merchandise that is 
detained or seized for infringement of the IPR owner's registered 
copyright, trademark, or trade name rights. These amendments will 
assist Customs in making infringement determinations and enable 
concerned IPR owners to more expeditiously proceed to enforce their 
property rights by means of instituting appropriate judicial remedies 
against the parties identified as being involved with infringement of 
the rights of the IPR owner.

EFFECTIVE DATE: April 13, 1998.

FOR FURTHER INFORMATION CONTACT: The Intellectual Property Rights 
Branch, Office of Regulations and Rulings, (202) 927-2330.

SUPPLEMENTARY INFORMATION:

Background

    On August 23, 1993, the Customs Service published a Notice of 
Proposed Rulemaking in the Federal Register (58 FR 44476) regarding the 
disclosure to intellectual property rights (IPR) owners of sample 
merchandise and certain identifying information regarding the identity 
of persons involved with importing merchandise that is either detained 
or seized for infringing copyright, trademark, or trade name rights. 
Sixty-five comments were received pursuant to this notice.
    Thereafter, the United States, Canada, and Mexico entered into the 
North American Free-Trade Agreement (NAFTA) and, on December 8, 1994, 
the President signed the Uruguay Round Agreements Act (URAA) (Pub. L. 
103-465, 108 Stat. 4809), both of which contain provisions pertaining 
to the protection of IPR. The URAA contains the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPs) (19 U.S.C. 
3511) of the Uruguay Round of the General Agreement on Tariffs and 
Trade (GATT)--now the World Trade Organization (WTO).
    On July 14, 1995, Customs published its analysis of the 65 comments 
in a revised Notice of Proposed Rulemaking (60 FR 36249). The revised 
Notice, in addition to making changes in response to the comments 
received, proposed further regulatory changes to make the regulations 
consistent with certain provisions of the NAFTA and the URAA and to 
improve the clarity of the proposed regulations. Accordingly, the 
Background information contained in the revised Notice regarding these 
agreements remains applicable and is incorporated here by reference.
    The comments received in response to the revised Notice of Proposed 
Rulemaking published on July 14, 1995, and Customs responses to them 
are set forth below.

[[Page 11997]]

Analysis of Comments

    Twenty-two comments were received (21 in favor, including 8 with 
suggested changes to the revised proposal, and 1 against) that raised 7 
areas of concern:
    (1) Disclosure of confidential business information would violate 
both the Freedom of Information Act (FOIA) and the Trade Secrets Act;
    (2) Disclosure of confidential importer information to the IPR 
holder is contrary to the intent of both NAFTA and GATT;
    (3) The 30-day notification period does not allow the IPR owner to 
act expeditiously;
    (4) Disclosure should include country of origin information;
    (5) Disclosure should include the date(s) of importation, the port 
of entry, and a description of the merchandise;
    (6) Disclosure should include the identity of the importer; and
    (7) IPR owners should be allowed to retain samples sent for 
inspection, and Customs should clarify its position regarding the 
testing of samples, since testing may result in the destruction of a 
sample.

1. Disclosure of Confidential Business Information Would Violate Both 
the FOIA and the Trade Secrets Act

    Comment: Stating that commercial information is ``confidential'' 
and, therefore, not subject to public disclosure, one commenter asserts 
that the proposed disclosure of information would contravene both the 
Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Trade Secrets 
Act (18 U.S.C. 1905). Citing the FOIA as providing that confidential 
information is not subject to public disclosure if it would cause 
substantial harm to the competitive position of the source of the 
information and the Trade Secrets Act as providing that sensitive 
business information should not be disclosed unless otherwise provided 
by law, the commenter states that Customs is bound not to disclose such 
confidential information as the names and addresses of importers, 
exporters, and manufacturers, and recommends that Customs withdraw its 
revised notice.
    Customs' Response: Customs disagrees with these interpretations of 
the cited Acts.
    Regarding the FOIA, its basic objective is to disclose official 
information, making available to the public federal agency records (5 
U.S.C. 552(a)), except to the extent that such records (or portions 
thereof) are specifically exempt from disclosure (5 U.S.C. 552(b)). 
Thus, contrary to the commenter's position, the FOIA does not mandate 
nondisclosure, but rather seeks to establish workable standards for 
determining whether particular material may be withheld or must be 
disclosed.
    Regarding the Trade Secrets Act, this Act specifically prohibits 
the disclosure of confidential information, except as is authorized by 
law, under penalty of fine and/or imprisonment (see also, Sec. 103.34 
of the Customs Regulations (19 CFR 103.34)). As explained below, 
Customs has revised Sec. 133.22(b) so that no trade secret information 
will be disclosed at the detention stage. However, at the seizure 
stage, Customs believes that statutory authority exists to provide 
Customs with the authority to disclose the information specified. 
Therefore, Customs believes that substantive agency regulations, 
promulgated pursuant to such statutory authority and published in 
compliance with the Administrative Procedure Act (5 U.S.C. 551 et 
seq.), are not in conflict with the Trade Secrets Act.
    Concerning Customs' statutory authority to disclose certain 
importation information to IPR holders, numerous provisions in titles 
15, 17, and 19 of the U.S. Code authorize the Secretary of the Treasury 
(the Secretary) to promulgate regulations to enforce their prohibitions 
against the importation of IPR-infringing merchandise. The Copyright 
Act of 1976 (17 U.S.C. 602 et seq.) (the Copyright Act) prohibits the 
importation of infringing copies and authorizes the Secretary to 
prescribe a procedure whereby a person with an interest in the work may 
be entitled to notification of the importation. Further, section 603 of 
the Copyright Act authorizes the Secretary to enforce the Copyright 
Act's provisions by prohibiting such importations, and provides that 
(1) a court order may be obtained enjoining an importation and (2) a 
claimant seeking exclusion of an importation may establish proof that 
an importation would violate section 602. Such order or proof would 
necessarily entail the availability of certain transaction information 
to the person claiming an interest in the copyright.
    Under the Lanham Trademark Act (15 U.S.C. 1124), the Secretary is 
authorized to make regulations regarding trademarks and to aid Customs 
officers in enforcing theprohibitions against importation. Also, 
sections 526 and 595a(c) of the Tariff Act of 1930, as amended (19 
U.S.C. 1526 and 1595a(c)), prohibit the importation or introduction of 
merchandise with unauthorized trademarks or merchandise or packaging in 
which copyright, trademark, or trade name protection violations are 
involved and under the provisions of section 624 of the Tariff Act of 
1930, as amended (19 U.S.C. 1624), the Secretary is authorized to 
promulgate regulations to carry out those provisions. Section 526 of 
the Tariff Act of 1930, as amended, further provides for the 
notification of trademark owners when merchandise bearing a counterfeit 
mark is seized. Customs believes that these statutes may be reasonably 
interpreted to permit Customs to provide for the disclosure of certain 
import information, and where the identification of such violative 
merchandise requires the assistance of IPR owners, relevant information 
may be made available.
    Since the purpose of these disclosure regulations is to further the 
statutory enforcement scheme by allowing Customs to release certain 
commercial information so that Customs can more timely and accurately 
identify legitimate merchandise, pursuant to the regulations 
promulgated herein, Customs is authorized by law to disclose such 
information without violating the Trade Secrets Act. Accordingly, since 
the regulations do not provide for the disclosure of either the 
manufacturer's or importer's identity at the detention stage, no trade 
secrets are being divulged. As stated in the revised Notice of Proposed 
Rulemaking, it is Customs policy to avail itself of any opportunity to 
gather information quickly and accurately so that decisions concerning 
imported merchandise can be correctly and timely made. Accordingly, the 
provisions of Secs. 133.22 and 133.43, which pertain to detention, do 
not provide for the disclosure of any manufacturer or importer 
information, while the provisions of Secs. 133.23a and 133.42, which 
pertain to seizure, are revised to allow for the disclosure of the name 
and address information pertaining to the manufacturer and importer.
    Further, to make clear when Customs officers will be required to 
disclose importation information and provide sample merchandise to IPR 
owners and when Customs officers may, on an ad hoc basis, disclose such 
information, i.e., to solicit an IPR owner's assistance in determining 
whether a particular importation should be detained in the first 
instance, the provisions of Sec. 133.22(b) are revised to better 
reflect Customs detention notice policies. Accordingly, Sec. 133.22(b) 
has been amended to provide that once a notice of detention is issued, 
Customs officers are required to disclose the importation information 
to IPR owners, within the 30-day time limitation imposed by the 
detention statute, in order to more quickly determine whether the marks 
are restricted or prohibited. But during the time between presentation 
of the

[[Page 11998]]

goods for Customs examination and issuance of a formal detention notice 
Customs officers have the authority to disclose such importation 
information where the circumstances warrant. Customs expects that such 
disclosure will allow Customs officers, in many cases, to determine 
immediately whether a formal detention should be initiated or whether 
the goods should be released, thereby avoiding lengthy delays and 
demurrage charges.
    For the above reasons, Customs will not withdraw its revised 
notice.

2. Disclosure of Confidential Importer Information to the IPR Holder Is 
Contrary to the Intent of Both the NAFTA and the GATT

    Comment: The same commenter suggested that the proposed disclosure 
was contrary to the intent of both the NAFTA and the GATT. Citing the 
NAFTA as providing that it does not affect U.S. law or practice 
relating to parallel importation of products protected by intellectual 
property rights and the GATT as stating that measures and procedures to 
enforce property rights should not themselves become barriers to 
legitimate trade, the commenter states that the proposed changes cannot 
be said to be consistent with the stated objectives of these two 
agreements. The commenter states that Customs' proposal is principally 
directed at changing established law and practice relating to parallel 
imports and will inevitably serve as a barrier to legitimate trade. 
Accordingly, the commenter recommends that Customs withdraw its revised 
notice.
    Customs' Response: Inasmuch as the proposed regulations provide for 
disclosure as authorized by law, Customs does not believe that such 
disclosure is inconsistent with either the NAFTA or the GATT TRIPs 
Agreement. The border enforcement provisions of these Agreements 
contemplate the prosecution of suspect importations by IPR owners. To 
that end, each Agreement provides for the disclosure of information to 
IPR owners sufficient to substantiate claims of infringement. Article 
1718 of the NAFTA and Article 57 of the GATT TRIPs Agreement do not, as 
the commenter suggests, give blanket nondisclosure benefit to the 
importer. Customs believes that the references in these Agreements to 
the ``protection of confidential information'' require only that the 
disclosure of information comply with the respective signatory party's 
laws and regulations regarding disclosure. For the reasons discussed 
above in the previous response, the proposed regulations have been 
issued pursuant to valid statutory authority.
    Accordingly, Customs will not withdraw its revised notice.

3. The 30-day Notification Period Does Not Allow the IPR Owner To Act 
Expeditiously

    Comment: Another commenter urged that the 30-day notification 
period should be reduced to 10 days so that an IPR owner could be in a 
position to act more expeditiously, and recommends that Customs change 
the time period accordingly.
    Customs' Response: Aside from the permissive disclosure situation 
described above, Customs believes that the 30 business day time limit 
for required disclosure of importation information affords IPR owners 
sufficient time to act expeditiously. Customs must consider the 
workload placed on its employees and regulate manageable time frames 
for their compliance with the relevant disclosure rules.
    Accordingly, Customs will not change the time period as proposed in 
Secs. 133.22(b), 133.23(c), 133.42(d), and 133.43(b).

4. Disclosure Should Include Country of Origin Information

    Comment: Several comments were received noting that country of 
origin information should be included in the revision of 19 CFR 133.43, 
as it was in the other sections revised.
    Customs' Response: Customs agrees that the regulations should be 
consistent and has added country of origin information as information 
to be disclosed under 19 CFR 133.43.

5. Disclosure Should Include the Date(s) of Importation, the Port of 
Entry, and a Description of the Merchandise

    Comment: In the Background section of the revised Notice of 
Proposed Rulemaking Customs indicated that certain information, namely 
dates of importation, port of entry and description of the merchandise, 
would be included in every notification as a matter of course. One 
commenter requested that these items be specifically set forth to 
insure that this information is released.
    Customs' Response: Customs agrees and has added this information 
concerning the dates of importation, port of entry, and a description 
of the merchandise as information to be disclosed under 
Secs. 133.22(b), 133.23(c), 133.42(d), and 133.43(b).

6. Disclosure Should Include the Identity of the Importer

    Comment: Comments were received requesting that the identity of the 
importer be provided under 19 CFR 133.22 when goods are detained for 
suspicion of trademark counterfeiting. These commenters argue that such 
disclosure would then parallel the release of an importer's identity 
under 19 CFR 133.43 when goods are detained for suspicion of copyright 
counterfeiting.
    Customs' Response: The identity of an importer is provided under 
the provisions of 19 CFR 133.43 (suspected copyright counterfeiting) 
because of the broad bonding provisions contained in that section. The 
bonding requirements applicable to goods detained for suspicion of 
trademark counterfeiting are much narrower, only providing security for 
samples. Although the NAFTA and the GATT TRIPs Agreement each provides 
that the competent authorities may require such a security for all 
detentions of goods suspected of IPR infringement, Customs has not 
implemented such a requirement for trademarked goods.
    Customs' objective of making timely and accurate determinations on 
counterfeiting requires that the unauthorized application of a mark be 
readily ascertained. To that end, Customs has determined that the 
identity of the manufacturer is important because the mark is typically 
applied by the manufacturer. Until Customs institutes a similar, broad 
bonding procedure for suspected counterfeit trademark goods, it has 
decided that the importer's identity shall not be released at the time 
of detention.

7. IPR Owners Should Be Allowed To Retain Samples Sent for Inspection, 
and Customs Should Clarify Its Position Regarding the Testing of 
Samples, Since Testing May Result in the Destruction of a Sample

    Comment: A comment was received suggesting that IPR owners be 
permitted to retain samples forwarded by Customs for examination. 
Another comment noted that certain testing may result in the 
destruction or partial destruction of a sample, and requested 
clarification of Customs position on the testing of samples.
    Customs' Response: Customs recognizes that testing may be required 
to determine whether a sample bears a counterfeit trademark or 
constitutes a piratical copy. Customs' intention is to allow for the 
manipulation of samples provided to IPR owners, including the

[[Page 11999]]

destruction of the sample if required during the testing procedure. 
However, Customs has determined that samples may not be retained by IPR 
owners, and Customs will require either the return of samples, the 
remains of tested sample, or assurances to Customs' satisfaction that 
the article has been destroyed. Accordingly, the regulations as set 
forth below have been modified to provide that where Customs has 
provided sample merchandise to an IPR owner for examination, testing, 
or any other use in pursuit of a related private civil remedy, the IPR 
owner must return the sample to Customs upon demand or at the 
conclusion of the examination, testing, or use in pursuit of a related 
private civil remedy. In the event the sample is damaged, destroyed, or 
lost while in the custody of the IPR owner, the owner shall certify 
this fact to Customs. The regulations also require that the IPR owner 
post a bond conditioned to indemnify the importer and to hold harmless 
Customs, in the event that the sample is destroyed.
    In the August 23, 1993, notice of proposed rulemaking, and the July 
14, 1995, revised notice of proposed rulemaking on these regulations, 
Customs proposed furnishing samples of imported goods bearing 
trademarks to IPR owners to determine whether infringement has 
occurred. Customs has determined that in some instances samples may be 
furnished to IPR owners under the proposed rules where subsequently it 
is determined that no infringement has occurred. It logically flows 
that in some of these instances importers may suffer damages as a 
result of the furnishing of samples to the IPR owner (for example, 
samples may be lost or destroyed). To provide protection to importers 
in this eventuality, Customs has determined to require IPR owners to 
provide Customs with a bond as a precondition to obtaining samples. 
Specifically, Customs has revised Secs. 133.22(c), 133.23a(d), 
133.42(e), and 133.43(b) and (c) to require that a bond be posted by 
the IPR owner to indemnify the importer and hold-harmless Customs from 
any loss or damage resulting from Customs furnishing a sample to the 
IPR owner, in the event that the sample merchandise provided is 
subsequently determined not to bear an infringing mark.

Conclusion

    After analysis of the comments and further consideration of the 
matter, Customs has decided to adopt the proposed amendments to part 
133 of the Customs Regulations with the modifications discussed above 
in the analysis of comments.

The Regulatory Flexibility Act

    Based on the reasons set forth above and because the regulatory 
burden falls primarily on Customs to notify IPR holders of infringing 
imported merchandise, pursuant to the provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), it is certified that the 
amendments to the regulations will not have a significant economic 
impact on a substantial number of small entities. Accordingly, the 
amendments are not subject to the regulatory analysis or other 
requirements of 5 U.S.C. 603 and 604.

Executive Order 12866

    This document does not meet the criteria for a ``significant 
regulatory action'' as defined in E.O. 12866.

List of Subjects in 19 CFR Part 133

    Copyright, Counterfeit goods, Customs duties and inspection, 
Imports, Reporting and recordkeeping requirements, Restricted 
merchandise, Seizures and forfeitures, Trademarks, Trade names.

Amendments to the Regulations

    For the reasons stated above, part 133 of the Customs Regulations 
(19 CFR part 133), is amended as set forth below:

PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS

    1. The general authority citation for part 133 is revised to read 
as follows:

    Authority: 17 U.S.C. 101, 601, 602, 603; 19 U.S.C. 66, 1624; 31 
U.S.C. 9701.
* * * * *
    2. Section 133.22 is amended by revising the section heading; 
revising the text of paragraph (a); redesignating paragraphs (b) and 
(c) as paragraphs (d) and (e); adding new paragraphs (b) and (c); and 
revising the heading of newly redesignated paragraph (d). The additions 
and revisions are to read as follows:


Sec. 133.22  Procedure on detention of articles subject to restriction.

    (a) In general. Articles subject to the restrictions of Sec. 133.21 
shall be detained for 30 days from the date on which the merchandise is 
presented for Customs examination. The importer shall be notified of 
the decision to detain within 5 days of the decision that such 
restrictions apply. The importer may, during the 30-day period, 
establish that any of the circumstances described in Sec. 133.21(c) are 
applicable. Extensions of the 30-day time period may be freely granted 
for good cause shown.
    (b) Notice of detention and disclosure of information. From the 
time merchandise is presented for Customs examination until the time a 
notice of detention is issued Customs may disclose to the owner of the 
trademark or trade name any of the following information in order to 
obtain assistance in determining whether an imported article bears an 
infringing trademark or trade name. Customs shall disclose this same 
information (if available) to the owner of the trademark or trade name 
within 30 days (excluding weekends and holidays) of the date of 
detention:
    (1) The date of importation;
    (2) The port of entry;
    (3) A description of the merchandise;
    (4) The quantity involved; and
    (5) The country of origin of the merchandise.
    (c) Samples available to the trademark or trade name owner. At any 
time following presentation of the merchandise for Customs examination 
but prior to seizure, Customs may provide a sample of the suspect 
merchandise to the owner of the trademark or trade name for examination 
or testing to assist in determining whether the article imported bears 
an infringing trademark or trade name. To obtain a sample under this 
section, the trademark/trade name owner must furnish Customs a bond in 
the form and amount specified by the port director, conditioned to hold 
the United States, its officers and employees, and the importer or 
owner of the imported article harmless from any loss or damage 
resulting from the furnishing of a sample by Customs to the trademark 
owner. Customs may demand the return of the sample at any time. The 
owner must return the sample to Customs upon demand or at the 
conclusion of the examination or testing. In the event that the sample 
is damaged, destroyed, or lost while in the possession of the trademark 
or trade name owner, the owner shall, in lieu of return of the sample, 
certify to Customs that: ``The sample described as [insert description] 
and provided pursuant to 19 CFR 133.22(c) was (damaged/ destroyed/lost) 
during examination or testing for trademark infringement.''
    (d) Form of notice. * * *
* * * * *
    3. Section 133.23a is amended by redesignating paragraph (c) as 
paragraph (e); adding new paragraphs (c) and (d); and revising the 
heading and removing the first sentence of newly designated paragraph 
(e). The additions and revisions are to read as follows:


Sec. 133.23a  Articles bearing counterfeit trademarks.

* * * * *

[[Page 12000]]

    (c) Notice to trademark owner. When merchandise is seized under 
this section, Customs shall disclose to the owner of the trademark the 
following information, if available, within 30 days, excluding weekends 
and holidays, of the date of the notice of seizure:
    (1) The date of importation;
    (2) The port of entry;
    (3) A description of the merchandise;
    (4) The quantity involved;
    (5) The name and address of the manufacturer;
    (6) The country of origin of the merchandise;
    (7) The name and address of the exporter; and
    (8) The name and address of the importer.
    (d) Samples available to the trademark owner. At any time following 
seizure of the merchandise, Customs may provide a sample of the suspect 
merchandise to the owner of the trademark for examination, testing, or 
other use in pursuit of a related private civil remedy for trademark 
infringement. To obtain a sample under this section, the trademark/
trade name owner must furnish Customs a bond in the form and amount 
specified by the port director, conditioned to hold the United States, 
its officers and employees, and the importer or owner of the imported 
article harmless from any loss or damage resulting from the furnishing 
of a sample by Customs to the trademark owner. Customs may demand the 
return of the sample at any time. The owner must return the sample to 
Customs upon demand or at the conclusion of the examination, testing, 
or other use in pursuit of a related private civil remedy for trademark 
infringement. In the event that the sample is damaged, destroyed, or 
lost while in the possession of the trademark owner, the owner shall, 
in lieu of return of the sample, certify to Customs that: ``The sample 
described as [insert description] and provided pursuant to 19 CFR 
133.23a(d) was (damaged/destroyed/lost) during examination, testing, or 
other use.''
    (e) Failure to make appropriate disposition. * * *
    4. Section 133.42 is amended by redesignating paragraph (d) as 
paragraph (f) and adding new paragraphs (d) and (e) to read as follows:


Sec. 133.42  Infringing copies or phonorecords.

* * * * *
    (d) Disclosure. When merchandise is seized under this section, 
Customs shall disclose to the owner of the copyright the following 
information, if available, within 30 days, excluding weekends and 
holidays, of the date of the notice of seizure:
    (1) The date of importation;
    (2) The port of entry;
    (3) A description of the merchandise;
    (4) The quantity involved;
    (5) The name and address of the manufacturer;
    (6) The country of origin of the merchandise;
    (7) The name and address of the exporter; and
    (8) The name and address of the importer.
    (e) Samples available to the copyright owner. At any time following 
seizure of the merchandise, Customs may provide a sample of the suspect 
merchandise to the owner of the copyright for examination, testing, or 
any other use in pursuit of a related private civil remedy for 
copyright infringement. To obtain a sample under this section, the 
copyright owner must furnish to Customs a bond in the form and amount 
specified by the port director, conditioned to hold the United States, 
its officers and employees, and the importer or owner of the imported 
article harmless from any loss or damage resulting from the furnishing 
of a sample by Customs to the copyright owner. Customs may demand the 
return of the sample at any time. The owner must return the sample to 
Customs upon demand or at the conclusion of the examination, testing, 
or other use in pursuit of a related private civil remedy for copyright 
infringement. In the event that the sample is damaged, destroyed, or 
lost while in the possession of the copyright owner, the owner shall, 
in lieu of return of the sample, certify to Customs that: ``The sample 
described as [insert description] provided pursuant to 19 CFR 133.42(e) 
was (damaged/destroyed/lost) during examination, testing, or other 
use.''
* * * * *
    5. In Sec. 133.43, paragraphs (c) and (d) are redesignated as 
paragraphs (d) and (e), and paragraph (b) is revised and a new 
paragraph (c) is added to read as follows:


Sec. 133.43  Procedure on suspicion of infringing copies.

* * * * *
    (b) Notice to copyright owner. If the importer of suspected 
infringing copies or phonorecords files a denial as provided in 
paragraph (a) of this section, the port director shall furnish to the 
copyright owner the following information, if available, within 30 
days, excluding weekends and holidays, of the receipt of the importer's 
denial:
    (1) The date of importation;
    (2) The port of entry;
    (3) A description of the merchandise;
    (4) The quantity involved;
    (5) The country of origin of the merchandise; and
    (6) Notice that the imported article will be released to the 
importer unless, within 30 days from the date of the notice, the 
copyright owner files with the port director a written demand for the 
exclusion from entry of the detained imported articles.
    (c) Samples available to the copyright owner. At any time following 
presentation of the merchandise for Customs examination but prior to 
seizure, Customs may provide a sample of the suspect merchandise to the 
owner of the copyright for examination or testing to assist in 
determining whether the article imported is a piratical copy. To obtain 
a sample under this section, the copyright owner must furnish Customs a 
bond in the form and amount specified by the port director, conditioned 
to hold the United States, its officers and employees, and the importer 
or owner of the imported article harmless from any loss or damage 
resulting from Customs detention or seizure, or the furnishing of a 
sample by Customs to the trademark owner, in the event that the 
Commissioner of Customs, or his designee, or a federal court determines 
that the article does not bear an infringing mark. Customs may demand 
the return of the sample at any time. The owner must return the sample 
to Customs upon demand or at the conclusion of the examination or 
testing. In the event that the sample is damaged, destroyed, or lost 
while in the possession of the copyright owner, the owner shall, in 
lieu of return of the sample, certify to Customs that: ``The sample 
described as [insert description] provided pursuant to 19 CFR 133.43(c) 
was (damaged/destroyed/lost) during examination or testing for 
copyright infringement.''
* * * * *
Samuel H. Banks,
Acting Commissioner of Customs.

    Approved: February 17, 1998.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 98-6183 Filed 3-11-98; 8:45 am]
BILLING CODE 4820-02-P