[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Proposed Rules]
[Pages 55332-55334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22877]


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DEPARTMENT OF JUSTICE

41 CFR Part 128-1

[Docket No. FBI 151]
RIN 1110-AA32


Federal Bureau of Investigation Anti-Piracy Warning Seal Program

AGENCY: Federal Bureau of Investigation (FBI), Justice.

ACTION: Proposed rule.

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SUMMARY: The Federal Bureau of Investigation (FBI) is proposing a new 
regulation providing a general authorization for use of the FBI Anti-
Piracy Warning Seal (APW Seal). The proposed rule will provide access 
to the APW Seal to all copyright holders, subject to specific 
conditions of use.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before November 7, 2011. Comments received by mail 
will be considered timely if they are postmarked on or before that 
date. The electronic Federal Docket Management System (FDMS) will 
accept comments until Midnight Eastern Time at the end of that day.

ADDRESSES: Comments may be mailed to the Access Integrity Unit, Attn: 
Lori L. Bokey c/o Federal Bureau of Investigation, CJIS Division, 
Module C-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306. 
To ensure proper handling, please reference Docket No. FBI 151 on your 
correspondence. You may submit comments electronically or view an 
electronic version of this proposed rule at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: John C. Allender, FBI Office of the 
General Counsel, telephone number 202-324-8088.

SUPPLEMENTARY INFORMATION: 
    Posting of Public Comments. Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov. Such information 
includes personal identifying information (such as your name and 
address) voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you want to submit 
personal identifying information (such as your name and address) as 
part of your comment but do not want it to be posted online, you must 
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You also must locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the paragraph above entitled FOR FURTHER INFORMATION 
CONTACT.
    The reason the Department is requesting electronic comments before 
Midnight Eastern Time at the end of the day the comment period closes 
is that the inter-agency Regulations.gov/Federal Docket Management 
System (FDMS), which receives electronic comments, terminates the 
public's ability to submit comments at that time. Commenters in time 
zones other than Eastern may want to take this fact into account so 
that their electronic comments can be received. The constraints imposed 
by the Regulations.gov/FDMS system do not apply to U.S. postal comments 
which, as stated above, will be considered as timely filed if they are 
postmarked before midnight on the day the comment period closes.
    Discussion. The FBI's Anti-Piracy Warning (APW) Seal is a modified 
image of the FBI's Official Seal with the words ``FBI Anti-Piracy 
Warning'' superimposed on it. On November 17, 2003, the Attorney 
General approved the APW Seal, then referred to as the ``FBI 
Intellectual Property Rights Seal,'' as an official insignia of the FBI 
to be used by the FBI and FBI-authorized entities as part of a 
copyright anti-piracy awareness campaign. This approval brought the APW 
Seal within the protection of Title 18 U.S. Code, Section 701, which 
provides criminal sanctions for the unauthorized uses of such insignia.
    The APW Seal was designed to graphically enhance the impact of 
language warning users of copyrighted media about the potential 
consequences of intellectual property crime, and the FBI's role in 
investigating such crime. It serves as a vivid and widely recognizable 
reminder of the FBI's authority and mission with respect to the 
protection of intellectual property rights.
    Beginning in December 2003, the FBI implemented a pilot program in 
which the FBI entered into separate Memoranda of Understanding with 
each of five entertainment and software industry associations. Members 
of these associations were able to request approval to use the APW Seal 
from the association, and the association administered the process and 
record-keeping. Largely as a result of this program, the APW Seal and 
its anti-piracy message have reached a large segment of the public. 
Unfortunately, the pilot program also had the effect of excluding non-
members of these five associations from being able to use the APW Seal 
on their works.
    In order to enhance the availability, use, and effectiveness of the 
APW Seal on lawful, copyright-protected works, this rule proposes to 
replace the pilot program with a regulation governing the use of the 
APW Seal. The image of the APW Seal will be made available on the FBI's 
website, and it may be downloaded for use on eligible works as 
specified in the text of the proposed regulation below. There will be 
no fee associated with using the APW Seal. This regulation will be a 
significant improvement over the current program, which has tended to 
limit the use of the APW Seal and requires each user to enter into a 
written agreement governing the use.

Regulatory Certifications

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this proposed rule and, by 
approving it, certifies that this rule will not have a

[[Page 55333]]

significant economic impact on a substantial number of small entities. 
Subject to the terms and conditions set forth, this rule merely allows 
copyright holders to use the APW Seal on copyrighted works to help 
detect and deter criminal violations of United States intellectual 
property laws by educating the public about the existence of these laws 
and the authority of the FBI to enforce them.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation and in accordance with Executive Order 13563 
``Improving Regulation and Regulatory Review'' section 1(b) General 
Principles of Regulation.
    The Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and accordingly this rule has not 
been reviewed by the Office of Management and Budget.
    Further, both Executive Orders 12866 and 13563 direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. The Department has assessed the costs and 
benefits of this regulation and believes that the regulatory approach 
selected maximizes net benefits.

Executive Order 12988--Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13132--Federalism

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, and tribal governments (in the aggregate) or by the private 
sector of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
proposed rule will not result in an annual effect on the U.S. economy 
of $100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of U.S.-based companies to 
compete with foreign-based companies in domestic and export markets. 
Subject to the terms and conditions set forth, this rule merely allows 
copyright holders to use the APW Seal on copyrighted works to help 
detect and deter criminal violations of United States intellectual 
property laws by educating the public about the existence of these laws 
and the authority of the FBI to enforce them.

List of Subjects in 41 CFR Part 128-1

    Government property, Seals and insignia, Copyright, Intellectual 
property.

    Accordingly, for the reasons set forth in the preamble, part 128-1 
of chapter 128 of Title 41 of the Code of Federal Regulations is 
amended as follows:

PART 128-1--[AMENDED]

    1. The authority citation for part 128-1 is revised to read as 
follows:

    Authority:  5 U.S.C. 301, 40 U.S.C. 486(c), 41 CFR 101-1.108, 
and 28 CFR 0.75(j), unless otherwise noted.

    2. A new Sec.  128-1.5009 is added to read as follows:


Sec.  128-1.5009  Authorization for Use of the Federal Bureau of 
Investigation Anti-Piracy Warning Seal.

    (a) Purpose. The Federal Bureau of Investigation (FBI) Anti-Piracy 
Warning Seal (``APW Seal'') is an official insignia of the FBI and the 
United States Department of Justice. The purpose of the APW Seal is to 
help detect and deter criminal violations of United States intellectual 
property laws by educating the public about the existence of these laws 
and the authority of the FBI to enforce them.
    (b) The ``APW Seal'' is a modified image of the Official FBI Seal 
with the words ``FBI ANTI-PIRACY WARNING'' displayed horizontally 
across its center in an enclosed border, whether rendered in color, 
black and white, outline, or otherwise.
    (c) The APW Seal has been approved by the Attorney General as an 
official insignia of the FBI within the meaning of Title 18 United 
States Code, Section 701, which provides criminal sanctions for 
unauthorized uses of such insignia.
    (d)(1) The regulations in this section authorize use of the APW 
Seal by copyright holders on copyrighted works including, but not 
limited to films, audio recordings, electronic media, software, books, 
photographs, etc., subject to the terms and conditions set forth in 
this paragraph.
    (2) Use of the APW Seal or of the authorized warning language in a 
manner not authorized under this section may be punishable under Title 
18 United States Code, Sections 701, 709, or other applicable law.
    (e) Conditions regarding use of the APW Seal.
    (1) The APW Seal may only be used on works subject to protection as 
intellectual property under U.S. Criminal Code provisions such as those 
in Title 18 U.S. Code, Sections 2319, 2319A, and 2319B.
    (2) The APW Seal may only be used immediately adjacent to the 
authorized warning language. ``Authorized warning language'' refers to 
the language set forth in paragraph (e)(2)(A) of this section, or 
alternative language specifically authorized in writing for this 
purpose by the Director of the FBI or his or her designee and posted on 
the FBI's official public Internet Web site (http://www.fbi.gov).
    (A) ``The unauthorized reproduction or distribution of a 
copyrighted work is illegal. Criminal copyright infringement, including 
infringement without monetary gain, is investigated by the FBI and is 
punishable by fines and federal imprisonment.''
    (3) The APW Seal image must be obtained from the FBI's official 
public Internet Web site (http://www.fbi.gov). The APW Seal image may 
not be animated or altered except that it may be rendered in outline, 
black and white, or grayscale.
    (4) In programming or reproducing the APW Seal in or on a work, 
users are encouraged to employ industry-recognized copyright anti-
circumvention or copy protection

[[Page 55334]]

techniques to discourage copying of the FBI APW Seal, except that such 
techniques need not be used if no other content or advertising 
programmed into the same work on the same media utilizes such copyright 
anti-circumvention or copy protection techniques.
    (f) Prohibitions regarding use of the APW Seal.
    (1) The APW Seal may not be used in a manner indicating FBI 
approval, authorization, or endorsement of any communication other than 
the authorized warning language. No other text or image that appears on 
the same screen, page, package, etc., as the APW Seal or authorized 
warning language shall reference, contradict, or be displayed in a 
manner that appears to be associated with, the APW Seal or authorized 
warning language, except as authorized in writing by the Director of 
the FBI or his or her designee and posted on the FBI's official public 
Internet Web site (http://www.fbi.gov).
    (2) The APW Seal may not be used on any work whose production, 
sale, distribution by United States mail or in interstate commerce, or 
public presentation would violate the laws of the United States 
including, but not limited to, those protecting intellectual property 
and those prohibiting child pornography and obscenity.
    (3) The APW Seal may not be forwarded or copied except as necessary 
to display it on an eligible work.
    (4) The APW Seal shall not be used in any manner:
    (A) Indicating that the FBI has approved, authorized, or endorsed 
any work, product, production, or private entity, including the work on 
which it appears;
    (B) Indicating that the FBI has determined that a particular work 
or portion thereof is entitled to protection of the law; or,
    (C) Indicating that any item or communication, except as provided 
herein, originated from, on behalf of, or in coordination with the FBI, 
whether for enforcement purposes, education, or otherwise.

    Dated: August 29, 2011.
Lee J. Lofthus,
Assistant Attorney General for Administration.
[FR Doc. 2011-22877 Filed 9-6-11; 8:45 am]
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