[Federal Register Volume 77, Number 79 (Tuesday, April 24, 2012)]
[Rules and Regulations]
[Pages 24375-24380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9762]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Parts 133 and 151
[USCBP-2012-0011; CBP Dec. 12-10]
RIN 1515-AD87
Disclosure of Information for Certain Intellectual Property
Rights Enforced at the Border
AGENCIES: U.S. Customs and Border Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Interim rule; solicitation of comments.
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SUMMARY: This document amends, on an interim basis, the U.S. Customs
and Border Protection (CBP) regulations pertaining to importations of
merchandise bearing recorded trademarks or recorded trade names. The
interim amendments, effective upon publication in the Federal Register,
allow CBP, subject to limitations, to disclose to an intellectual
property right holder information appearing on merchandise or its
retail packaging that may comprise information otherwise protected by
the Trade Secrets Act, for the purpose of assisting CBP in determining
whether the merchandise bears a counterfeit mark. Such information will
be provided to the right holder in the form of photographs or a sample
of the goods and/or their retail packaging in their condition as
presented to CBP for examination and alphanumeric codes appearing on
the goods. The information will include, but not be limited to, serial
numbers, universal product codes, and stock keeping unit (SKU) numbers
appearing on the imported merchandise and its retail packaging, whether
in alphanumeric or other formats. These changes provide a pre-seizure
procedure for disclosing information about imported merchandise
suspected of bearing a counterfeit mark for the limited purpose of
obtaining the right holder's assistance in determining whether the mark
is counterfeit or not.
DATES: Effective April 24, 2012; comments must be received on or before
June 25, 2012.
ADDRESSES: You may submit comments, identified by docket number, by one
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments via docket number USCBP
2012-0011.
Mail: Trade and Commercial Regulations Branch, Office of
International Trade, Regulations and Rulings, U.S. Customs and Border
Protection, 799 9th Street NW. (Mint Annex), Washington, DC 20229-1179.
Instructions: All submissions received must include the agency name
and docket number for this interim rulemaking. All comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Submitted comments
may also be inspected during regular business days between the hours of
9 a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch,
Office of International Trade, Regulations and Rulings, U.S. Customs
and Border Protection, 799 9th Street NW., 5th Floor, Washington, DC.
Arrangements to inspect submitted comments should be made in advance by
calling Joseph Clark at (202) 325-0118.
FOR FURTHER INFORMATION CONTACT: Paul Pizzeck, Intellectual Property
Rights Branch, Regulations and Rulings, Office of International Trade,
(202) 325-0020.
SUPPLEMENTARY INFORMATION:
Public Participation
Interested persons are invited to participate in this rulemaking by
[[Page 24376]]
submitting written data, views, or arguments on all aspects of the
interim rule. CBP also invites comments that relate to the economic,
environmental, or federalism effects that might result from this rule.
If appropriate to a specific comment, the commenter should reference
the specific portion of the rule, explain the reason for any
recommended change, and include data, information, or authority that
support such recommended change.
Background
Purpose of the Interim Amendments
CBP is responsible for border enforcement of intellectual property
rights laws and regulations. One of the primary purposes of CBP's
efforts to interdict counterfeit imported goods is to protect the
public from unsafe and substandard products, which, in some cases, can
be a threat to public health and safety, and also a threat to the
national security. In particular, counterfeit integrated circuits and
electronic components can find their way into critical manufacturing,
military, infrastructure, and consumer product applications. In fact,
inquiries conducted by Congress and the Department of Defense (DoD)
have revealed that counterfeit electronic components, including
counterfeit integrated circuits, have entered military and government
supply chains, posing a serious threat to our military and government
personnel and infrastructure.
Due to the development of sophisticated techniques of some
counterfeiters and the highly technical nature of some imported goods,
it has become increasingly difficult for CBP to determine whether some
goods suspected of bearing counterfeit marks in fact bear counterfeit
marks. The current regulation pertaining to goods bearing counterfeit
marks does not provide a procedure for disclosing information to right
holders to assist CBP in its efforts to identify goods bearing
infringing marks, prior to CBP's making a determination to seize.
In this document, CBP is making several changes to subpart C of
part 133 of the CBP regulations (19 CFR part 133) regarding the
detention of suspect merchandise and the disclosure of information to
right holders during detention of goods bearing potentially counterfeit
marks and after seizure of goods bearing counterfeit marks. These
changes, made on an interim basis and effective on the date of their
publication in the Federal Register, include a clarifying revision of
the current regulation's definition of ``counterfeit trademark'' and an
addition of a 30-day detention period relative to goods suspected of
bearing counterfeit marks. These changes will enhance CBP's enforcement
capability against increasingly sophisticated counterfeit products that
threaten the public health and safety and national security.
The Trade Secrets Act and Disclosure Under the Current Regulation
The Trade Secrets Act (18 U.S.C. 1905) bars the unauthorized
disclosure by government officials of any information received in the
course of their employment or official duties when such information
(also referred to collectively as ``protected information'') ``concerns
or relates to the trade secrets, processes, operations, style of work,
or apparatus, or to the identity, confidential statistical data, amount
or source of any income, profits, losses, or expenditures of any
person, firm, partnership, corporation, or association.'' Case law
interpreting the statute states that the Act ``appears to cover
practically any commercial or financial data collected by any Federal
employee from any source'' and that the ``comprehensive catalogue of
items'' listed in the Act ``accomplishes essentially the same thing as
if it had simply referred to `all officially collected commercial
information' or `all business and financial data received.' '' See CNA
Fin. Corp. v. Donovan, 830 F.2d 1132, 1140 (D.C. Cir. 1987).
Specifically, the Trade Secrets Act protects those required to
furnish commercial or financial information to the government by
shielding them from the competitive disadvantage that could result from
disclosure of that information by the government. In turn, this
protection encourages those providing information to the government to
furnish accurate and reliable information that is useful to the
government.
The protection afforded by the Trade Secrets Act, however, must be
balanced against the important and legitimate interests of government.
The Trade Secrets Act permits those covered by the Act to disclose
confidential information when the disclosure is otherwise ``authorized
by law,'' which includes both statutes expressly authorizing disclosure
and properly promulgated substantive agency regulations authorizing
disclosure based on a valid statutory interpretation. See Chrysler v.
Brown, 441 U.S. 281, 294-316 (1979).
The National Defense Authorization Act for Fiscal Year 2012
Section 818(g) of the National Defense Authorization Act for Fiscal
Year 2012 (NDAA) (Pub. L. 112-81) provides:
If United States Customs and Border Protection suspects a
product of being imported in violation of section 42 of the Lanham
Act, and subject to any applicable bonding requirements, the
Secretary of the Treasury may share information appearing on, and
unredacted samples of, products and their packaging and labels, or
photographs of such products, packaging, and labels, with the
rightholders of the trademarks suspected of being copied or
simulated for purposes of determining whether the products are
prohibited from importation pursuant to such section.
The NDAA enhances CBP's capability to enforce laws protecting marks
by authorizing the agency to disclose certain information to right
holders to assist CBP officers in determining whether suspect
merchandise bears counterfeit marks.
Further Statutory Analysis Concerning Disclosure of Commercial
Information
Under the NDAA, CBP is authorized by law to make certain
disclosures. One reading of the language of the NDAA, however, is that
disclosure is limited to trademarks and does not include other marks
noted under the Lanham Act (certification, collective, and service
marks). Moreover, some have suggested that the legislative history of
the Act indicates that certain legislators intended that the exception
to the Trade Secrets Act created by the NDAA is to apply only to
military sales.
Consequently, CBP, in publishing this interim rule, is exercising
regulatory authority to remove any ambiguity about CBP's authority to
disclose information with regard to certification, collective, and
service marks, as well as trademarks, and to further clarify that the
disclosure authority extends to all imports and not just those
associated with military sales.
As noted above, the Secretary of the Treasury (the Secretary) has
authority to disclose information otherwise protected under the Trade
Secrets Act when such disclosures are authorized by law. Disclosures
meeting the ``authorized by law'' standard of the Trade Secrets Act
include those made under regulations that are (1) in compliance with
the provisions of the Administrative Procedure Act (5 U.S.C. 551 et
seq.) and (2) based on a valid statute. Regarding CBP's statutory
authority to disclose certain importation information to right holders,
various provisions in titles 15 and 19 of the United States Code
(U.S.C.) authorize
[[Page 24377]]
CBP to promulgate regulations to enforce prohibitions against the
importation of merchandise that infringes intellectual property rights.
Section 42 of the Lanham Act (15 U.S.C. 1124) prohibits the
importation of merchandise bearing a mark which copies or simulates a
registered mark. In order to aid CBP in enforcing this prohibition,
section 42 provides for the recordation of registered marks under such
regulations as the Secretary of the Treasury shall prescribe. Sections
526(e) and 595a(c) of the Tariff Act of 1930, as amended (19 U.S.C.
1526(e), and 19 U.S.C. 1595a(c)), prohibit the importation of
merchandise bearing a counterfeit mark and the introduction or
attempted introduction into the United States of merchandise or
packaging in which, inter alia, trademark or trade name protection
violations are involved, including, but not limited to violations of
sections 1124, 1125 and 1127 of Title 15 (sections 42, 32 and 45 of the
Lanham Act). Moreover, section 526(e) of the Tariff Act of 1930, as
amended, (19 U.S.C. 1526(e)) requires CBP to notify the owner of the
trademark when merchandise bearing a counterfeit mark within the
meaning of section 1127 of Title 15 and imported in violation of
section 1124 of Title 15 is seized. Section 624 of the Tariff Act of
1930, as amended (19 U.S.C. 1624), authorizes the Secretary of the
Treasury to promulgate regulations to carry out the provisions of the
Tariff Act of 1930, as amended. Collectively, these statutes authorize
the Secretary of the Treasury, in instances where identification of
suspected violative merchandise requires the assistance of right
holders for the specific and limited purpose of determining whether
imported merchandise bears a counterfeit mark, to provide for the
disclosure of certain information to right holders upon importation.
The interim rule is intended to support the statutory enforcement
scheme discussed above and to allow CBP officers, without violating the
Trade Secrets Act, to disclose information that might reveal otherwise
confidential commercial or financial information in order to assist CBP
in identifying merchandise bearing counterfeit marks at the time of
detention.
Notice Provision To Prevent Economic Harm to Legitimate Importers
In addition, CBP is putting in place a procedure that provides the
importer the opportunity to demonstrate to CBP, within seven (7) days
(exclusive of weekends and holidays) of a notice of detention, that the
article in question does not bear a counterfeit mark, before releasing
information to the right holder. Only absent such a demonstration by
the importer will information, images, or samples be shared with the
right holder. This procedural safeguard is intended to achieve the
policy goals of the NDAA in a manner consistent with maintaining the
flow of information to the government, fostering competition, keeping
prices low, and maintaining consumer choice.
Information that is covered by the Trade Secrets Act and obtained
from an importer, including the importer's name and place of business,
manufacturer's identity, supply chain, and other confidential
commercial or financial information, if disclosed, could provide
insights into the importer's business operations, processes, style of
work, and income, all inuring to the importer's competitive
disadvantage. For example, product coding, such as serial numbers, and
SKUs often incorporates information about where and when a product was
manufactured, as well as other information that could allow one to
identify information about the manufacture of the product. It is
likewise possible that such information could directly or indirectly
reveal the identity of wholesalers, exporters, or other parties in the
importer's supply chain and the timing and pricing of the transactions
involving those entities. Such confidential commercial or financial
information, if not properly protected, could be used by competitors to
an importer's economic disadvantage, potentially resulting in reduced
competition and consumer choice with attendant increases in prices.
Interim Amendments Concerning Pre-Seizure Disclosure of Information
This document is amending the CBP regulations to allow CBP to
provide right holders, for the limited purpose of assisting CBP in
making infringement determinations, with any information appearing on
merchandise and/or its retail packaging, or a sample of the merchandise
including its retail packaging, when CBP reasonably suspects that such
merchandise and/or packaging may bear a counterfeit mark (see Sec.
133.21(b)(1) of this rule). This disclosure of information, which
includes images (photographs) or samples, as appropriate, could
potentially disclose confidential commercial or financial information
otherwise protected under the Trade Secrets Act. The interim regulation
also includes a procedure that allows an importer, prior to release of
the information, the opportunity to establish, within seven (7) days
(excluding weekends and holidays) of a notice of detention, that the
marks are not counterfeit. Only absent such a demonstration by the
importer will the disclosure be made to the right holder.
In conjunction with the interim rule's procedure outlined above,
CBP is adding to the regulation a 30-day period (and an extension, if
requested by the importer for good cause) to commence upon presentation
of the goods for examination, within which a determination with respect
to admissibility will be made (see Sec. 133.21(b) of this rule). Under
the interim regulation, CBP will issue the notice of detention within
five days of its detention decision, starting the seven-day period
within which the importer may demonstrate that the goods do not bear a
counterfeit mark. Only if such demonstration is untimely or
insufficient will CBP release information to the right holder.
In brief summation, this change to the regulations concerning
counterfeit marks, in principal part, allows CBP, prior to seizure, to
release to right holders information appearing on goods (and/or their
retail packaging), and on images and samples, that are not redacted,
i.e., images showing the merchandise (and/or its retail packaging) in
its condition as presented for examination and samples (and/or its
retail packaging) in their condition as so presented. This allows the
right holder to assist CBP in its enforcement effort to prevent the
entry of goods bearing counterfeit marks. However, in certain
circumstances, DHS criminal investigators may provide right holders
such information or samples without notifying the importer, for example
to obtain from the right holder evidence that will assist the
investigators in demonstrating probable cause when they seek a judicial
order in the course of a criminal or national security investigation.
Other Interim Amendments To Clarify and Maintain Consistency With the
Current Regulations
As mentioned previously, CBP is also making a clarifying amendment
to the definition of ``counterfeit trademark.'' The amended definition
of ``counterfeit mark'' uses the term ``mark'' instead of ``trademark''
(see Sec. 133.21(a) of this rule).
In addition, CBP is amending the regulations pertaining to goods
bearing copying or simulating marks and restricted gray market goods to
correct an inconsistency in the regulatory scheme for such goods (19
CFR 133.22(f)
[[Page 24378]]
and 133.23(f), respectively). The 30-day detention period for these
goods is set forth in Sec. 133.25 of the CBP regulations, and this
procedure provides for extension of the detention period applicable to
these goods upon good cause shown. Therefore, CBP is removing from
Sec. Sec. 133.22(f) and 133.23(f) inconsistent language that appears
to restrict the respective detention periods to only 30 days.
Lastly, CBP is amending the provisions of 19 CFR 151.16(a)
regarding detention of merchandise to make them consistent with the
interim regulations in this rulemaking. The regulations pertaining to
detention of merchandise exclude from their applicability imported
articles suspected of being infringing copies or phonorecords, imported
goods bearing marks which are confusingly similar to recorded
trademarks, and imported restricted gray market merchandise. The
interim amendment to section 151.16(a) excludes imports of goods
suspected of bearing counterfeit marks from the applicability of the
regulations pertaining to detention of merchandise.
Inapplicability of Notice and Delayed Effective Date Requirements
As explained previously in this document (see ``Purpose of the
Interim Amendments'' subsection in the Background section), CBP is
responsible for enforcement of intellectual property rights laws and
regulations at the border. An important goal of CBP efforts to
interdict counterfeit imported goods is to protect the public from
unsafe and substandard counterfeit products. In addition, counterfeit
goods present a threat to national security and our critical
infrastructure. Counterfeit integrated circuits and electronic
components can be used in critical manufacturing, military,
infrastructure, and consumer product applications. Inquiries conducted
by Congress and the DoD have revealed that counterfeit electronic
components, including counterfeit integrated circuits, have entered
military and government supply chains, posing a serious threat to our
military and government personnel and infrastructure. Moreover,
interdiction of counterfeit goods has been made increasingly difficult
due to the development of sophisticated techniques used by some
counterfeiters and the highly technical nature of some imported goods.
Because this rule addresses an immediate need to address without
delay vulnerabilities in our military and government procurement
processes, as well as an immediate need to interdict goods bearing
counterfeit marks that pose health and safety risks to the American
public, CBP has determined that it would be contrary to the public
interest to delay the effective date of this rule. Therefore, CBP has
determined that in accordance with the sections 553(b)(B) and 553(c) of
the Administrative Procedure Act (5 U.S.C 553), good cause exists to
dispense with the prior comment requirement and delayed effective date
requirement. Subsection 818(g) of the NDAA was effective upon
enactment, but the authority it provides the Secretary is discretionary
and not mandatory. Accordingly, although some may interpret the statute
to allow the Secretary to exercise his discretionary authority without
amending CBP's existing regulations, CBP believes that amending the
existing, more restrictive regulations is consistent with the
requirements of the Administrative Procedure Act and will eliminate any
legal ambiguity. The interim regulations also promote transparency and
provide an important opportunity to gather feedback and input from
stakeholders regarding implementation of Sec. 818(g) of the NDAA.
Executive Orders 12866 and 13563
Executive Orders 13563 and 12866 direct agencies to assess 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.
This rule has been designated a ``significant regulatory action''
although not economically significant, under section 3(f) of Executive
Order 12866. Accordingly, the rule has been reviewed by the Office of
Management and Budget.
Regulatory Flexibility Act
Because a notice of proposed rulemaking is not required under
section 553(b)(3)(B) of the APA for the reasons described in the
Inapplicability of Notice and Delayed Effective Date Requirements
section of this document, the provisions of the Regulatory Flexibility
Act, as amended (5 U.S.C. 601 et seq.), do not apply to this
rulemaking. Accordingly, this interim rule is not subject to the
regulatory analysis or other requirements of 5 U.S.C. 603 and 604.
Signing Authority
This rulemaking is being issued in accordance with 19 CFR
0.1(a)(1), pertaining to the authority of the Secretary of the Treasury
(or that of his or her delegate) to approve regulations concerning
trademark enforcement.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507), the collections of information for this document are included in
an existing collection for Notices of Detention (OMB control number
1651-0073). An agency may not conduct, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number assigned by OMB.
The burden hours related to the Notices of Detention for OMB
control number 1651-0073 are as follows:
Number of Respondents: 1,350.
Number of Responses: 1,350.
Time per Response: 2 hours.
Total Annual Burden Hours: 2,700.
There is no change in burden hours under this collection with this
rule.
List of Subjects
19 CFR Part 133
Copying or simulating trademarks, Copyrights, Counterfeit
trademarks, Customs duties and inspection, Detentions, Reporting and
recordkeeping requirements, Restricted merchandise, Seizures and
forfeitures, Trademarks, Trade names.
19 CFR Part 151
Customs duties and inspection, Examination, Imports, Penalties,
Reporting and recordkeeping requirements, Sampling and testing.
Amendments to the CBP Regulations
For the reasons stated above in the preamble, CBP is amending parts
133 and 151 of title 19 of the Code of Federal Regulations (19 CFR
parts 133 and 151) to read as follows:
PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS
0
1. The general authority citation for part 133 and the specific
authority citation for Sec. 133.21 through 133.25 are revised, to read
as follows:
Authority: 15 U.S.C. 1124, 1125, 1127; 17 U.S.C. 101, 601, 602,
603; 19 U.S.C. 66, 1202, 1499, 1526, 1624; 31 U.S.C. 9701;
* * * * *
Sections 133.21 through 133.25 also issued under 18 U.S.C. 1905;
Sec. 818(g), Pub. L. 112-81.
* * * * *
[[Page 24379]]
0
2. The heading for subpart C is revised to read as follows:
Subpart C--Importations Bearing Recorded Marks or Trade Names
0
3. Section 133.21 is revised to read as follows:
Sec. 133.21 Articles suspected of bearing counterfeit marks.
(a) Counterfeit mark defined. A ``counterfeit mark'' is a spurious
mark that is identical with, or substantially indistinguishable from, a
mark registered on the Principal Register of the U.S. Patent and
Trademark Office.
(b) Detention. CBP may detain any article of domestic or foreign
manufacture imported into the United States that bears a mark suspected
of being a counterfeit version of a mark that is registered with the
U.S. Patent and Trademark Office and is recorded with CBP pursuant to
subpart A of this part. The detention will be for a period of up to
thirty days from the date on which the merchandise is presented for
examination. The 30-day time period may be extended for up to an
additional thirty days for good cause shown by the importer. In
accordance with 19 U.S.C. 1499, if after the detention period and any
authorized extensions the article is not released the article will be
deemed excluded for the purposes of 19 U.S.C. 1514(a)(4).
(1) Notice to importer of detention and possible disclosure. Within
five days (excluding weekends and holidays) from the date of a decision
to detain, CBP will notify the importer in writing of the detention.
The notice will inform the importer that a disclosure of information
concerning the detained merchandise may be made to the owner of the
mark to assist CBP in determining whether any marks are counterfeit,
unless the importer presents information within seven days of the
notification (excluding weekends and holidays) establishing to CBP's
satisfaction that the detained merchandise does not bear a counterfeit
mark. CBP may disclose information appearing on the merchandise and/or
its retail packaging, images (including photographs) of the merchandise
and/or its retail packaging in its condition as presented for
examination, or a sample of the merchandise and/or its retail packaging
in its condition as presented for examination. The release (disclosure)
of a sample is subject to the bond and return requirements of paragraph
(c) of this section. Where the importer does not timely provide
information or the information provided is insufficient for CBP to
determine that the merchandise does not bear a counterfeit mark, CBP
may proceed with the disclosure to the owner of the mark, and will so
notify the importer. Disclosure under this section may include any
serial numbers, dates of manufacture, lot codes, batch numbers,
universal product codes, or other identifying marks appearing on the
merchandise or its retail packaging, in alphanumeric or other formats.
(2) Notice to owner of the mark and disclosure of information. From
the time merchandise is presented for examination until the time a
notice of detention is issued, CBP may disclose to the owner of the
mark any of the following information in order to obtain assistance in
determining whether an imported article bears a counterfeit mark. Once
a notice of detention is issued, CBP will disclose to the owner of the
mark the following information, if available, within thirty days
(excluding weekends and holidays) from the date of detention:
(i) The date of importation;
(ii) The port of entry;
(iii) The description of the merchandise from the entry;
(iv) The quantity involved; and
(v) The country of origin of the merchandise.
(3) Redacted images and samples made available to the owner of the
mark. Notwithstanding the notice and seven-day response procedure of
paragraph (b)(1) of this section, CBP may, at any time after
presentation of the merchandise for examination, provide to the owner
of the mark images or a sample of the detained merchandise or its
retail packaging, provided that identifying information has been
removed, obliterated, or otherwise obscured. Identifying information
includes, but is not limited to, serial numbers, dates of manufacture,
lot codes, batch numbers, universal product codes, the name or address
of the manufacturer, exporter, or importer of the merchandise, or any
mark that could reveal the name or address of the manufacturer,
exporter, or importer of the merchandise, in alphanumeric or other
formats. CBP will release to the owner of the mark a sample under this
paragraph when the owner furnishes CBP 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 to the sample resulting from
the furnishing of a sample by CBP to the owner of the mark. CBP may
demand the return of the sample at any time. The owner of the mark must
return the sample to CBP upon demand or at the conclusion of any
examination, testing, or similar procedure performed on the sample. In
the event that the sample is damaged, destroyed, or lost while in the
possession of the owner of the mark, the owner must, in lieu of return
of the sample, certify to CBP that: ``The sample described as [insert
description] and provided pursuant to 19 CFR 133.21(b)(3) was (damaged/
destroyed/lost) during examination, testing, or other use.''
(c) Unredacted samples made available to the owner of the mark
prior to seizure. A sample of the imported merchandise may be released
prior to seizure to the owner of the mark in accordance with paragraph
(b)(1) of this section. CBP will release to the owner of the mark a
sample under this paragraph when the owner furnishes CBP 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 to the sample
resulting from the furnishing of a sample by CBP to the owner of the
mark. CBP may demand the return of the sample at any time. The owner of
the mark must return the sample to CBP upon demand or at the conclusion
of any examination, testing, or similar procedure performed on the
sample. In the event that the sample is damaged, destroyed, or lost
while in the possession of the owner of the mark, the owner must, in
lieu of return of the sample, certify to CBP that: ``The sample
described as [insert description] and provided pursuant to 19 CFR
133.21(c) was (damaged/destroyed/lost) during examination, testing, or
other use.''
(d) Seizure. Upon a determination by CBP, made any time after the
merchandise has been presented for examination, that an article of
domestic or foreign manufacture imported into the United States bears a
counterfeit mark, CBP will seize such merchandise and, in the absence
of the written consent of the owner of the mark, forfeit the seized
merchandise in accordance with the customs laws. When merchandise is
seized under this section, CBP will disclose to the owner of the mark
the following information, if available, within thirty days (excluding
weekends and holidays) from the date of the notice of seizure:
(1) The date of importation;
(2) The port of entry;
(3) The description of the merchandise from the entry;
(4) The quantity involved;
(5) The name and address of the manufacturer;
[[Page 24380]]
(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 made available to the owner of the mark after seizure.
At any time following a seizure of merchandise bearing a counterfeit
mark under this section, CBP may provide a sample and its retail
packaging, in its condition as presented for examination, to the owner
of the mark for examination, testing, or other use in pursuit of a
related private civil remedy for trademark infringement. To obtain a
sample under this paragraph, the owner of the mark must furnish CBP 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 to
the sample resulting from the furnishing of a sample by CBP to the
owner of the mark. CBP may demand the return of the sample at any time.
The owner of the mark must return the sample to CBP upon demand or at
the conclusion of the examination, testing, or other use in pursuit of
a related private civil remedy for infringement. In the event that the
sample is damaged, destroyed, or lost while in the possession of the
owner of the mark, the owner must, in lieu of return of the sample,
certify to CBP that: ``The sample described as [insert description] and
provided pursuant to 19 CFR 133.21(e) was (damaged/destroyed/lost)
during examination, testing, or other use.''
(f) Consent of the mark owner; failure to make appropriate
disposition. The owner of the mark, within thirty days from
notification of seizure, may provide written consent to the importer
allowing the importation of the seized merchandise in its condition as
imported or its exportation, entry after obliteration of the mark, or
other appropriate disposition. Otherwise, the merchandise will be
disposed of in accordance with Sec. 133.52 of this part, subject to
the importer's right to petition for relief from forfeiture under the
provisions of part 171 of this chapter.
Sec. 133.22 [Amended]
0
4. Section 133.22(f), first sentence, is amended by removing the words
``within the 30-day period of detention'' and adding in their place the
words ``within the period of detention as provided in Sec. 133.25 of
this subpart''.
Sec. 133.23 [Amended]
0
5. Section 133.23(f), first sentence, is amended by removing the words
``within the 30-day period of detention'' and adding in their place the
words ``within the period of detention as provided in Sec. 133.25 of
this subpart''.
Sec. 133.26 [Amended]
0
6. Section 133.26 is amended by removing from the first sentence the
words ``subject to the restrictions of Sec. 133.22 or Sec. 133.23 of
this subpart'' and adding in their place the words ``subject to the
restrictions of Sec. 133.21, Sec. 133.22 or Sec. 133.23 of this
subpart''.
PART 151--EXAMINATION, SAMPLING AND TESTING OF MERCHANDISE
0
7. The general authority citation for part 151 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 3(i) and (j),
Harmonized Tariff Schedule of the United States (HTSUS), 1624;
* * * * *
0
8. Section 151.16(a) is revised to read as follows:
Sec. 151.16 Detention of merchandise.
(a) Exemptions from applicability. The provisions of this section
are not applicable to detentions effected by CBP on behalf of other
agencies of the U.S. Government in whom the determination of
admissibility is vested and to detentions arising from possibly
piratical copies (see part 133, subpart E, of this Chapter), imports of
articles bearing counterfeit marks or suspected counterfeit marks,
goods bearing marks which are confusingly similar to recorded
trademarks, or restricted gray market merchandise (see part 133,
subpart C, of this chapter.)
* * * * *
David V. Aguilar,
Acting Commissioner, U.S. Customs and Border Protection.
Approved: April 18, 2012.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2012-9762 Filed 4-23-12; 8:45 am]
BILLING CODE 9111-14-P