[Federal Register Volume 78, Number 119 (Thursday, June 20, 2013)]
[Notices]
[Pages 37242-37243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14743]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF MANAGEMENT AND BUDGET


Request for Public Comments: Interagency Review of Exclusion 
Order Enforcement Process

AGENCY: Office of the U.S. Intellectual Property Enforcement 
Coordinator, Executive Office of the President, OMB.

ACTION: Request for written submissions from the public.

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

SUMMARY: The Executive Office of the President, through the U.S. 
Intellectual Property Enforcement Coordinator (``IPEC''), is beginning 
an interagency review directed at strengthening the procedures and 
practices used during enforcement of exclusion orders issued by the 
U.S. International Trade Commission (``ITC''). The interagency working 
group will review existing procedures that U.S. Customs and Border 
Protection (``CBP'') and the ITC use to evaluate the scope of exclusion 
orders and work to ensure the process and criteria utilized during 
exclusion order enforcement activities are transparent, effective, and 
efficient. Through this request for public comment, IPEC invites public 
input and recommendations in support of the Administration's 
interagency review of exclusion order enforcement processes called for 
by the 2013 Joint Strategic Plan on Intellectual Property Enforcement 
[and the White House Task Force on High-Tech Patents].

DATES: Submissions must be received on or before July 21, 2013, at 
11:59 p.m.

ADDRESSES: All submissions should be electronically submitted to http://www.regulations.gov. If you are unable to provide submissions to 
regulations.gov, you may contact the Office of the U.S. Intellectual 
Property Enforcement Coordinator at [email protected] 
using the subject line ``IPEC Review of Exclusion Order Enforcement 
Processes'' or (202) 395-1808 to arrange for an alternate method of 
transmission. The regulations.gov Web site is a Federal E-Government 
Web site that allows the public to find, review and submit comments on 
documents that have published in the Federal Register and that are open 
for comment. Submissions filed via the regulations.gov Web site will be 
available to the public for review and inspection. For this reason, 
please do not include in your comments information of a confidential 
nature, such as sensitive personal information or proprietary business 
information.

FOR FURTHER INFORMATION CONTACT: Office of the U.S. Intellectual 
Property Enforcement Coordinator, at [email protected] 
or (202) 395-1808.

SUPPLEMENTARY INFORMATION: Under Section 337 of the Tariff Act of 1930, 
the ITC investigates allegations regarding unfair practices in import 
trade, including allegations related to intellectual property 
infringement, as well as other forms of unfair competition. Once the 
ITC finds a violation of Section 337 and issues an exclusion order 
barring the importation of infringing goods, CBP and the ITC are 
responsible for determining whether imported articles fall within the 
scope of the exclusion order. Because of these shared responsibilities, 
it is critical that the ITC and CBP have clear communication on what 
the order means to improve the order's enforcement and prevent 
importation of infringing product. This determination can often be 
challenging, particularly in cases in which a technologically 
sophisticated product may have been redesigned so as to no longer fall 
within the scope of the existing exclusion order.
    IPEC will chair a new interagency effort directed at strengthening 
the processes that CBP uses with regard to enforcement of ITC exclusion 
orders pertaining to intellectual property. The working group will be 
comprised of representatives from the ITC; DHS, DOC, Treasury, and DOJ; 
offices within the Executive Office of the President including USTR, 
OSTP, NEC; and other relevant agencies as necessary.
    The interagency working group will review existing procedures that 
CBP and the ITC use to evaluate the scope of ITC exclusion orders and 
work to ensure the process and standards utilized during exclusion 
order enforcement activities are transparent, effective, and efficient. 
Among others, one focus of the interagency review will be on ensuring 
that CBP uses transparent and accurate procedures for determining 
whether an article is covered by the ITC exclusion order. Further, the 
working group will evaluate opportunities to improve the effectiveness 
of directions provided by the ITC to assist CBP with the challenges of 
enforcement.
    Important to the development of the Administration's exclusion 
order enforcement recommendations, is ensuring that any approaches that 
are considered to be particularly effective as well as any concerns 
with the present approach to exclusion order enforcement are understood 
by policymakers. As such, IPEC is seeking public input and 
recommendations through the questions set out below for

[[Page 37243]]

improvements to the process and criteria utilized during exclusion 
order enforcement activities. Recommendations should include, but need 
not be limited to: Changes to agency policies, practices or methods, 
guidance and regulation.
    Within six months of the issuance of the Administration's 2013 
Joint Strategic Plan on Intellectual Property Enforcement, the 
interagency working group will prepare recommendations.

Questions

    1. Please describe your, positive or negative, experience with the 
exclusion order enforcement processes.
    2. Are the procedures, criteria, and regulations utilized by CBP 
when enforcing exclusion orders clear, accessible, and understood?
    a. Please provide recommendations for enhancements to procedures, 
criteria, and regulations used during enforcement of exclusion orders?
    3. Are the procedures and criteria used by CBP to evaluate the 
scope of an exclusion order effective and clearly understood?
    a. If not, please provide a description of the problem experienced?
    b. What improvements could be made to the procedures and criteria 
used by CBP when evaluating the scope of an exclusion order to assist 
with the determining whether an import is covered by the claims of the 
infringing patent?
    c. Under CBP's current ruling request process, 19 CFR part 177, an 
importer may seek a prospective ruling on whether a redesigned or new 
product falls within the scope of an exclusion order. Determinations of 
this kind are often initiated at the request of the importer (typically 
the product manufacturer) and are conducted through ex parte 
proceeding. Would development of an inter partes proceeding involving 
relevant parties to the ITC investigation enhance the efficiency, 
transparency and efficacy of the exclusion order enforcement process 
with respect to determining the scope of the exclusion order?
    4. Are the processes used by CBP timely and effective in notifying 
interested parties, for example, ITC litigants, importers and the 
general public, of determinations made regarding the scope of an 
exclusion order and, in turn, applicability to the imported product?
    5. What further procedural changes or collaborative steps could be 
undertaken between the ITC and CBP to improve the efficacy of exclusion 
order enforcement efforts?
    6. Do exclusion orders currently provide sufficient level of detail 
and direction necessary to assist CBP with the challenges of 
enforcement?
    7. Please identify any additional areas of consideration regarding 
improvements that could be undertaken by CBP or the ITC to further 
improve upon the exclusion order enforcement processes?

Victoria A. Espinel,
United States Intellectual Property Enforcement Coordinator, Executive 
Office of the President .
[FR Doc. 2013-14743 Filed 6-19-13; 8:45 am]
BILLING CODE P