Enforcement of Copyrights and the Digital Millennium Copyright Act

As Enacted ( Federal Register)

Cited in

Published date	16 October 2019
Citation	84 FR 55251
Record Number	2019-21980
Section	Proposed rules
Court	U.s. Customs And Border Protection

55251

Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules

state law must be determined by the

juvenile court based on applicable state

law.

•Clarify that DHS consent to the

grant of SIJ classification is only

warranted when the petitioner

demonstrates that the state court order

was sought primarily for the purpose of

obtaining relief from abuse, neglect,

abandonment or some similar basis

under state law and not primarily for

the purpose of obtaining lawful

immigration status; and that the

evidence otherwise demonstrates that

there is a bona fide basis for granting SIJ

classification.

•Clarify that USCIS may seek or

consider additional evidence if the

evidence presented is not sufficient to

establish a reasonable basis for DHS

consent.

•Remove automatic revocation under

8 CFR 205.1(a)(3)(iv)(A) and (C) to the

extent that they pertain to a juvenile’s

age and are inconsistent with age-out

protections under TVPRA 2008.

•Implement statutory revisions

exempting SIJ adjustment-of-status

applicants from four additional grounds

of inadmissibility and clarify grounds of

inadmissibility that cannot be waived.

•Improve the application process by

clearly listing required initial evidence

that must accompany Form I–360 and

amend what constitutes supporting

documentation; and

•Make technical and procedural

changes; and conform terminology.

DHS is reopening the comment period

to refresh this proposed rule and allow

interested persons to provide up-to-date

comments in recognition of the time

that has lapsed since the initial

publication of the proposed rule. Both

the public and the Government will

benefit from clarifications regarding

eligibility and procedures for the SIJ

classification. Due to the lapse in time

since the NPRM was issued, DHS seeks

to reengage the public and allow further

input on the proposed changes.

Kevin K. McAleenan,

Acting Secretary.

[FR Doc. 2019–22570 Filed 10–15–19; 8:45 am]

BILLING CODE 9111–97–P

DEPARTMENT OF HOMELAND

SECURITY

U.S. Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Parts 113, 133, 148, 151 and

177

[USCBP–2019–0037]

RIN 1515–AE26

Enforcement of Copyrights and the

Digital Millennium Copyright Act

AGENCY

: U.S. Customs and Border

Protection, Department of Homeland

Security; Department of the Treasury.

ACTION

: Notice of proposed rulemaking.

SUMMARY

: This document proposes to

amend the U.S. Customs and Border

Protection (CBP) regulations pertaining

to importations of merchandise that

violate or are suspected of violating the

Millennium Copyright Act (DMCA), in

accordance with Title III of the Trade

Facilitation and Trade Enforcement Act

of 2015 (TFTEA). The proposed

amendments set forth in this document

are intended to clarify the definition of

‘‘piratical articles,’’ simplify the

detention process involving goods

suspected of violating the copyright

laws, and prescribe new regulations

enforcing the DMCA.

DATES

: Comments on the proposed rule

must be received on or before December

16, 2019.

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–2019–0037.

•Mail: Trade and Commercial

Regulations Branch, Regulations and

Rulings, Office of Trade, U.S. Customs

and Border Protection, 90 K Street NE,

10th Floor, Washington, DC 20229–

1177.

Instructions: All submissions received

must include the agency name and

docket number for this proposed

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 proposed 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,

Regulations and Rulings, Office of

Trade, U.S. Customs and Border

Protection, 90 K Street NE, 10th 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

: Alex

Bamiagis, Intellectual Property Rights

Branch, Regulations and Rulings, Office

of Trade, U.S. Customs and Border

Protection, (202) 325–0415.

SUPPLEMENTARY INFORMATION

Public Participation

Interested persons are invited to

participate in this rulemaking by

submitting written data, views, or

arguments on all aspects of the

proposed rule. CBP also invites

comments that relate to the economic,

environmental, or federalism effects that

might result from this proposed rule. If

appropriate to a specific comment, the

commenter should reference the specific

portion of the proposed rule, explain the

reason for any recommended change,

and include data, information, or

authority that support such

recommended change.

Background

I. Purpose of Proposed Amendments

U.S. Customs and Border Protection

(CBP) has responsibilities for border

enforcement of intellectual property

rights (IPR) laws and regulations. The

majority of the CBP regulations

regarding these efforts are found in part

133 of title 19 of the Code of Federal

Regulations (19 CFR part 133). Part 133

provides for the recordation of

trademarks, trade names, and copyrights

with CBP and prescribes the

enforcement procedures applicable to

suspected infringing merchandise. Part

133 also sets forth procedures for the

seizure and disposition of articles

bearing prohibited marks or names, and

piratical articles, including release to

the importer in appropriate

circumstances.

CBP is proposing amendments to part

133 of the CBP regulations pursuant to

Title III of the Trade Facilitation and

Trade Enforcement Act of 2015 (Pub. L.

114–125; 130 Stat. 122; Section 628a of

the Tariff Act of 1930 (19 U.S.C. 1628a),

as amended) (TFTEA). Among the

changes made by TFTEA are certain

provisions regarding enforcement of the

Digital Millennium Copyright Act (Pub.

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L. 105–304, 112 Stat. 2860, as amended

by Pub. L. 106–113, 113 Stat. 1536,

(codified at 17 U.S.C. 1201)) (DMCA).

Among other things, the DMCA

prohibits the importation of devices

used to circumvent the technological

measures used by certain copyright

owners to protect their works

(‘‘copyright protection measures’’).

Section 303(a) of TFTEA specifically

provides that CBP may seize

merchandise containing a

circumvention device violating the

DMCA.

TFTEA requires CBP to make certain

pre-seizure disclosures to right holders

if CBP determines that these disclosures

would assist the agency in determining

whether imported merchandise violates

the copyright laws, including the

DMCA. These disclosures assist CBP in

determining whether certain goods are,

in fact, in violation of the copyright

laws, including the DMCA.

The proposed amendments to part

133 of the CBP regulations provide for

such disclosures upon detention of

merchandise suspected of violating the

accordance with TFTEA, these pre-

seizure disclosures may only be made

where the copyright has been recorded

with CBP. In accordance with TFTEA,

CBP will not provide these disclosures

when doing so would compromise an

ongoing law enforcement investigation

or national security.

As noted above, TFTEA provides for

seizure of merchandise containing a

circumvention device in violation of the

DMCA. TFTEA directs CBP to disclose

to persons injured by merchandise

seized for violation of the DMCA

information equivalent to the

information disclosed to copyright

owners when merchandise is seized for

violation of the copyright laws. To

identify those persons eligible to receive

these post-seizure disclosures, TFTEA

directs CBP to create a list of persons

eligible to receive disclosures when

injured by violations of the DMCA

resulting in seizure of the violative

merchandise. Section 133.47 of the

proposed regulations provide for such

disclosures and the establishment of the

list. CBP will publish a notice in the

Federal Register when the list is

established, and again any time the list

is revised.

On October 5, 2004, CBP published a

proposed rulemaking in the Federal

amendments to part 133 of 19 CFR to set

forth changes to CBP’s enforcement

procedures, including enhanced

disclosure provisions and provisions to

enforce the DMCA. Although comments

were solicited and received from the

public on the proposed amendments,

CBP did not publish a final rule

adopting the proposal. Due to the

passage of time since the publication of

the 2004 proposed rulemaking, CBP is

proposing new amendments to part 133

of the CBP regulations.

II. Disclosure of Information Pertaining

to Certain Intellectual Property Rights

Enforced at the Border

A. The Trade Secrets Act and Disclosure

Under the Current Regulations

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 ‘‘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.’’ 18 U.S.C. 1905.

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 Trade Secrets Act, however,

permits those covered by the Act to

disclose protected 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). For

example, the current CBP regulations set

forth in 19 CFR 133.21 allow disclosure

to a right holder of certain information

that may comprise information

otherwise protected by the Trade

Secrets Act for the purposes of

assisting CBP in determining whether

merchandise bears a counterfeit mark.

See CBP Dec. 15–12, published in the

Federal Register (80 FR 56370) on

September 18, 2015, effective October

19, 2015, for background information.

B. Statutory Analysis Concerning

Disclosure of Commercial or Financial

Information

The Secretary of the Treasury 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. Chrysler, 441 U.S. at 294–96 and

301–03. Various provisions in titles 15

and 19 of the United States Code

authorize CBP to promulgate regulations

to prohibit the importation of

merchandise that infringes intellectual

property rights. Among these, TFTEA

provides statutory authority for

information disclosure, amending

provisions in title 19 of the United

States Code (U.S.C.) to permit, and in

some instances require, CBP to provide

information otherwise protected under

the Trade Secrets Act to IPR owners

under specified conditions.

Title III of TFTEA permits, and in

some instances requires, CBP to disclose

information to IPR owners, to allow

them to assist with enforcement. CBP

enforces statutes prohibiting the

importation of infringing merchandise.

Specifically, 19 U.S.C. 1526 prohibits

the importation of merchandise that

infringes a trademark, 17 U.S.C. 602

prohibits the importation of

merchandise that infringes a copyright

under that title, and lastly, 17 U.S.C.

1201 prohibits the importation of

devices that circumvent copyright

protection systems. In order to aid CBP

in enforcing these prohibitions, 17

U.S.C. 602(b) permits the Secretary of

the Treasury to prescribe a procedure by

which CBP will notify an interested

party (which CBP has defined as the

owner of the copyright) of the

importation of articles that appear to be

copies or phonorecords of a copyrighted

work. See Copyright Act of 1976, Public

Law 94–553, 90 Stat. 2541 (Oct. 19,

1976). The disclosure of information

mandated by TFTEA is only available

where the underlying trademark or

Section 302 of TFTEA amended the

Tariff Act of 1930 by inserting section

628a (19 U.S.C. 1628a) after section 628

(19 U.S.C. 1628), requiring CBP to

provide IPR owners with information

appearing on imported articles or their

packaging and labels, including

unredacted images of those articles, if

the examination of the merchandise by

the IPR owner would assist CBP in

determining if those articles violate IPR

laws enforced by CBP. Section 302 of

TFTEA also permits CBP to provide to

the IPR owner unredacted samples of

the merchandise, subject to applicable

bonding requirements, if the IPR

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owner’s help would assist CBP in

determining if the importations

occurred in violation of 17 U.S.C. 602

(copyright), 17 U.S.C. 1201

(circumvention devices), or 19 U.S.C.

1526 (trademark). The information may

only be released where the underlying

trademark or copyright has been

recorded with CBP. CBP may not

disclose information, photographs, or

samples when such disclosure would

compromise an ongoing law

enforcement investigation or national

security.

In 2015, CBP finalized new

regulations for trademark enforcement,

providing for disclosure of information

to mark owners. CBP has proposed to

update 19 CFR 133.21 to include

updated bond provisions in keeping

with the TFTEA disclosures, to limit

disclosure of information to owners of

properly recorded trademarks, as

required by 19 U.S.C. 1628a(c), and to

conform 19 CFR 133.21 to the copyright

and DMCA provisions proposed in 19

CFR 133.42 and 133.47, respectively.

For more information on prior changes

to trademark enforcement, see CBP Dec.

15–12, published in the Federal

18, 2015, effective October 19, 2015.

Section 303(a) of TFTEA amended

section 596(c)(2) of the Tariff Act of

1930 (19 U.S.C. 1595a(c)(2)) by adding

subparagraph G (19 U.S.C.

1595a(c)(2)(G)), which provides for the

seizure of articles containing

circumvention devices imported in

violation of the DMCA (17 U.S.C. 1201).

Correspondingly, section 303(b) of

TFTEA requires that when merchandise

containing a circumvention device is

seized pursuant to 19 U.S.C.

1595a(c)(2)(G), CBP must disclose to the

parties injured by that circumvention

device information regarding the seized

merchandise that is equivalent to

information that CBP currently provides

to copyright owners upon seizure of

merchandise for violation of the

regarding the information provided to

133.42(e) in this document.) Section

303(b)(2) of TFTEA directs CBP to

establish and maintain a list of persons

eligible to receive such disclosures, and

section 303(b)(3) of TFTEA requires the

Secretary of the Treasury to prescribe

regulations establishing procedures to

implement these practices. Section 624

of the Tariff Act of 1930 (19 U.S.C.

1624), as amended, also authorizes the

Secretary of the Treasury to promulgate

regulations to carry out the provisions of

the Tariff Act of 1930, as amended, and

provides authority for further

regulations implementing the changes

directed by TFTEA.

This proposed rule is intended to

authorize, and in some cases require,

CBP personnel to disclose, either at the

time of detention of suspect

merchandise or after seizure of violative

merchandise, information that might

reveal commercial or financial

information otherwise protected by the

Trade Secrets Act. The proposed rule

replicates the procedural safeguards

implemented in the trademark

regulations at 19 CFR 133.21 to mitigate

potential risks from the disclosure of

protected information. For more

information on these safeguards, see

CBP Dec. 15–12, published in the

Federal Register (80 FR 56370) on

September 18, 2015, effective October

19, 2015.

III. Description of Proposed

Amendments to Part 133

CBP is proposing changes to part 133

of the CBP regulations to implement

certain provisions of TFTEA. First, CBP

is proposing to amend the scope

provision at § 133.0 to include TFTEA-

mandated disclosures. Next, CBP is

proposing to amend subpart E of part

133 regarding detention of merchandise

suspected of violating the copyright

laws, seizure of such violative

merchandise, and disclosure of

information to right holders. The

proposed changes are intended to

require pre-seizure disclosure of certain

information to right holders if review of

the information, or examination or

testing of the imported merchandise, by

the right holder would assist CBP in its

determination as to whether suspect

merchandise does, in fact, violate the

amendments to subpart E also provide

procedural safeguards to limit the

release of information concerning non-

violative shipments and simplify the

detention process relative to goods

suspected of violating the copyright

laws.

Also, CBP is proposing a new subpart

F to part 133 (existing subpart F is

proposed to be redesignated as new

subpart G). Proposed subpart F

prescribes the disclosure of information,

and potential provision of samples,

upon detention or seizure of goods

suspected of violating the DMCA to

enhance CBP’s ability to prohibit

circumvention devices from being

entered into the United States. Prior to

seizure, CBP will disclose information

appearing on the imported merchandise

to the owner of the recorded copyright

who employs the copyright protection

measure that the imported merchandise

is suspected of circumventing, if it will

assist CBP in determining whether the

merchandise is violative. Similarly,

when CBP seizes violative merchandise,

it will disclose information appearing

on the imported merchandise, as well as

information received in connection with

the importation, to certain right holders.

A. Subpart E to Part 133: Importations

Violating Copyright Laws

CBP is proposing several amendments

to subpart E of part 133 of the CBP

regulations. The proposed changes

would simplify procedures and

strengthen CBP’s ability to enforce the

against the importation of piratical

articles.

1. Definition of ‘‘Piratical Articles’’

Section 133.42(a) currently provides

that ‘‘[i]nfringing copies or

phonorecords are ‘piratical’ articles.’’ To

more accurately define ‘‘piratical

articles’’ for enforcement purposes, CBP

is proposing to amend paragraph (a) of

§ 133.42 to define ‘‘piratical articles’’ as

those that constitute unlawful (made

without the authorization of the

phonorecords of a recorded copyright.

Eligible copyrights may be recorded

with CBP using the Intellectual Property

Rights e-Recordation (IPRR) application

found at https://iprr.cbp.gov/.

2. Procedures on Suspicion of Piratical

Copies

Existing § 133.43 sets forth the

procedures CBP employs when it

suspects that imported articles may be

infringing copies or phonorecords of

recorded copyrights and provides for:

(1) Notice of detention of suspected

articles to the importer and to the

disclosure of certain information; (2) the

release of redacted samples of suspected

articles to the copyright owner; (3) the

release of the goods in the case of

inaction by the copyright owner; (4) in

cases where the copyright owner makes

a written demand for the exclusion of

the suspected articles, a bonding

requirement and exchange of briefs

process culminating in submission to

CBP for administrative review; and (5)

alternative procedures to the

administrative process (court action).

CBP believes that the procedure

requiring a copyright owner to file a

written demand for exclusion of the

suspected infringing copies, and

requiring an exchange of additional

evidence, briefs, and other pertinent

material to substantiate a claim or

denial of piracy between the parties is

ineffective for enforcing the Copyright

Act of 1976 and is inconsistent with

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TFTEA. CBP believes that these

procedures are an outdated and

inefficient mechanism to address

situations where CBP has a suspicion

that certain goods may be piratical.

These provisions are rarely used and

unduly burdensome on CBP and all

other parties involved. Essentially, these

procedures limit CBP’s ability to

conduct the required examination and

render its decision in a timely and

efficient manner. The related provision,

§ 133.44, prescribes the actions to be

taken when CBP sustains or denies a

claim of piracy under § 133.43.

Accordingly, CBP is proposing to

remove §§ 133.43 and 133.44 in their

entirety from title 19 of the CFR.

However, CBP proposes to retain the

procedures regarding detention of

suspected infringing copies or

phonorecords of recorded copyrights,

notice of such detention to the importer

and to the copyright owner, and the

disclosure of certain information and

release of redacted samples to the

in § 133.43 in a revised §133.42. Section

133.42 currently provides that the

importation of infringing copies or

phonorecords of works copyrighted in

the United States is prohibited and sets

forth provisions regarding the seizure

and forfeiture of such infringing works.

CBP proposes to amend and expand

§ 133.42 as follows to provide more

comprehensive regulations on the

manner in which it detains suspected

piratical articles, seizes piratical

articles, and exchanges information

with affected parties:

•Proposed § 133.42(a) sets forth

definitions for purposes of part 133.

•Proposed § 133.42(b)(1) prescribes

that CBP may detain imported articles

suspected of constituting a piratical

copy of a copyrighted work for which a

claim to copyright has been recorded

with CBP.

•Proposed § 133.42(b)(2)(i)(A)

specifies that, pursuant to 19 CFR

151.16(c) and 19 U.S.C. 1499(c)(2), a

notice of detention is issued to the

importer within five business days from

the date of CBP’s decision to detain

suspect merchandise. CBP will also

inform the importer that certain

information may already have been

disclosed to the owner of the recorded

disclose such information to the owner

no later than the date of issuance of the

detention notice.

•Proposed § 133.42(b)(2)(i)(B) sets

forth that CBP may disclose to the

owner of the recorded copyright

information that appears on the

detained merchandise and/or its retail

packaging, including unredacted

photographs, images, or samples, as

described in proposed paragraph (b)(3)

of this section, unless the importer

provides information within seven

business days of issuance of the

detention notice that is sufficient for

CBP to determine that the detained

merchandise is not piratical.

•Proposed § 133.42(b)(2)(ii) provides

that if the importer does not provide

information to CBP within seven

business days of issuance of the

detention notice that is sufficient for

CBP to determine that the detained

merchandise is not piratical, and CBP

still suspects the merchandise to be

violative, CBP will proceed with

disclosure to the owner of the recorded

paragraph (b)(3) of this section, if CBP

concludes that disclosure would assist

CBP in determining whether the

merchandise is piratical, and such

disclosure would not compromise an

ongoing law enforcement investigation

or national security.

•Proposed § 133.42(b)(3) sets forth

the information CBP will disclose to the

owner of the recorded copyright

pursuant to paragraph (b)(2)(ii) if CBP

concludes that disclosure would assist

CBP in determining whether the

merchandise is piratical, and such

disclosure would not compromise an

ongoing law enforcement investigation

or national security. This includes

information appearing on the goods and

their retail packaging and unredacted

images or photographs of the

merchandise. Proposed § 133.42(b)(3)

also provides that CBP may release a

sample to the owner of the recorded

return requirements of proposed

§ 133.42(c).

•Proposed § 133.42(b)(4) describes

the basic importation information to be

disclosed to the owner of the recorded

•Proposed § 133.42(b)(5) provides for

disclosure of redacted photographs or

images, or the provision of redacted

samples, including retail packaging or

labels, to the owner of the recorded

redacted would include 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 markings that

could reveal the name or address of the

manufacturer, exporter, or importer of

the merchandise. CBP may release the

sample identified in this paragraph

when the owner of the recorded

form and amount specified by CBP. CBP

may demand the return of the sample at

any time.

•Proposed § 133.42(c) pertains to the

disclosure of unredacted photographs or

images, or the provision of unredacted

samples, including retail packaging or

labels, to the owner of the recorded

section. Paragraph (c) provides that,

with the disclosure of the photographs

or images, or provision of the sample,

CBP will notify the owner of the

recorded copyright that some or all of

the information it receives may be

subject to the protections of the Trade

Secrets Act, is being issued to the owner

of the recorded copyright by CBP under

an exception to the Trade Secrets Act,

and is not to be used by the owner of

the recorded copyright (nor by parties

related to the owner of the recorded

purpose other than to assist CBP in

determining whether the merchandise

described in the notice of detention is

piratical. CBP will release the sample

identified in this paragraph when the

owner of the recorded copyright

furnishes to CBP a bond in the form and

amount specified by CBP. CBP may

demand the return of the sample at any

time.

•Proposed § 133.42(d) provides for

disclosure of unredacted photographs or

images, including photographs or

images of retail packaging or labels, to

the importer any time after presentation

of the suspect goods to CBP for

examination. Proposed § 133.42(d) also

provides that, upon the importer’s

request, CBP will provide samples to the

importer, including samples of retail

packaging or labels, any time after

presentation of the suspect goods to CBP

for examination.

•Proposed § 133.42(e) provides that,

in cases involving the seizure of

piratical articles, CBP will disclose to

the owner of the recorded copyright

certain limited information pertaining to

the attempted importation.

•Proposed § 133.42(f) provides that,

after seizure, CBP will provide—upon

receipt of a request by the owner of the

recorded copyright and upon that owner

furnishing a bond to CBP in the form

and amount specified by CBP—

photographs, images, or samples,

including retail packaging or labels, to

the owner of the recorded copyright.

CBP may demand the return of the

sample at any time.

•Proposed § 133.42(g) provides for

the consent of the owner of the recorded

and forfeited merchandise, or other

disposition subject to the importer’s

right to petition for relief under § 171.

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B. New Re-Designated Subpart F to Part

133: Enforcement Provisions for the

Digital Millennium Copyright Act

(DMCA)

In 1998, Congress enacted the DMCA.

Among other things, the DMCA

prohibits the circumvention of

technological measures used by

Section 1201(a)(3)(B) of title 17 of the

United States Code (17 U.S.C.

1201(a)(3)(B)) provides that, ‘‘[a]

technological measure ‘effectively

controls access to a work’ if the

measure, in the ordinary course of its

operation, requires the application of

information, or a process or a treatment,

with the authority of the copyright

owner, to gain access to the work.’’

Section 1201(b)(2)(B) of title 17 of the

United States Code (17 U.S.C.

1201(b)(2)(B)) provides that ‘‘[a]

technological measure ‘effectively

protects a right of a copyright owner

under this title’ if the measure, in the

ordinary course of its operation,

prevents, restricts, or otherwise limits

the exercise of a right of a copyright

owner under this title.’’ Pursuant to

section 303(b)(3) of TFTEA, the

Secretary of the Treasury must prescribe

regulations establishing procedures

relative to the seizure of articles the

importation of which is prohibited by

and found to violate the DMCA.

Although the current CBP regulations

do not specifically provide for the

detention and seizure of articles that

constitute violations of the DMCA, CBP

has implemented the DMCA by

providing CBP personnel with internal

enforcement guidelines and advice on

how to enforce the DMCA. Where CBP

finds that certain devices violate the

DMCA by circumventing a recorded

measure, the goods are currently subject

to seizure and forfeiture under 19 U.S.C.

1595a(c)(2)(C) for a violation of the

DMCA (17 U.S.C. 1201). Section 303 of

TFTEA amended section 596(c)(2) of the

Tariff Act of 1930 (19 U.S.C.

1595a(c)(2)) by adding subparagraph G

(19 U.S.C. 1595a(c)(2)(G)) for DMCA

violations, which, in essence,

accomplishes the same enforcement as

that carried out under the internal

enforcement guidelines. However, the

current CBP internal enforcement

guidelines and advice on how to enforce

the DMCA include neither the post-

seizure DMCA disclosure to those

persons injured by DMCA violations nor

the establishment of a list of those

persons approved to receive information

post-seizure, as provided for in section

303 of TFTEA. When final, the proposed

regulations will replace the existing

internal enforcement guidelines.

Pursuant to 19 U.S.C. 1628a, CBP is

proposing to add regulatory provisions

for the detention and seizure of articles

that constitute violations under the

DMCA. Specifically, CBP is proposing

to re-designate existing subpart F in part

133, which contains regulations

pertaining to procedures following

forfeiture or assessment of liquidated

damages, as a new subpart G, and to add

a new subpart F with a new § 133.47,

setting forth regulatory provisions that

prescribe the detention and seizure of

certain articles that violate the DMCA.

The regulatory provisions proposed in

§ 133.47 closely mirror the comparable

provisions for trademark as laid out in

§ 133.21 and copyright as laid out in

proposed § 133.42, described above.

Pursuant to 19 U.S.C. 1499(c)(2), CBP

will issue a notice of detention to the

importer within five business days from

the date of CBP’s decision to detain

suspect merchandise. CBP will inform

the importer that the importer may

provide information within seven

business days of issuance of the

detention notice to help CBP to

determine whether the detained

merchandise violates the DMCA. After

that period, if CBP still suspects the

merchandise may be violative, CBP will

disclose information appearing on the

detained merchandise and/or its retail

packaging to the owner of the recorded

protection measure, if CBP concludes

that the disclosure would assist CBP in

its determination and disclosure would

not compromise and ongoing law

enforcement investigation or national

security. Disclosed information may

also include unredacted samples, if

necessary to assist CBP in determining

whether or not the detained

merchandise violates the DMCA. The

detention will be for a period of up to

30 days from the date on which the

merchandise is presented for

examination. In accordance with 19

U.S.C. 1499(c), if, after the detention

period, the article is not released, the

article will be deemed excluded for

purposes of 19 U.S.C. 1514(a)(4).

In the event that CBP determines that

such detained articles violate 17 U.S.C.

1201, CBP will seize the articles under

19 U.S.C. 1595a(c)(2)(G) and institute

forfeiture proceedings in accordance

with 19 CFR part 162. CBP will, within

30 business days of the seizure, notify

the person CBP determines is injured by

the violation of the DMCA and will

disclose certain information regarding

the shipment to such person, provided

that person meets the requirements

detailed below. In the event that articles

released from CBP custody are

determined to be violative, proposed

§ 133.48 provides for redelivery of the

articles. Articles determined by CBP not

to violate 17 U.S.C. 1201 will be

released. Importers may petition for

relief from the seizure and forfeiture

under the provisions of 19 CFR part 171.

Articles that have been seized and

forfeited to the U.S. Government under

part 133 will be disposed of in

accordance with 19 CFR 133.52(b).

The proposed regulations define

persons eligible for pre-seizure and

post-seizure DMCA disclosures. Under

the proposed regulations, a person

eligible for pre-seizure disclosures is the

owner of a recorded copyright who

employs a copyright protection measure

that may have been circumvented or

attempted to be circumvented by

articles that violate the importation

prohibitions of the DMCA. Likewise, the

proposed regulations define an injured

person authorized to receive post-

seizure DMCA disclosures as the owner

of a recorded copyright who employs a

been circumvented or attempted to be

circumvented by articles seized for

violation of the importation prohibitions

of the DMCA, and who has successfully

applied to CBP for DMCA protections.

Pursuant to section 303(b) of TFTEA,

CBP will establish and maintain a list of

the persons who have successfully

applied to CBP to receive disclosures

from CBP when injured by violations of

the DMCA. Under proposed

§ 133.47(b)(2)(iii), CBP will publish a

notice in the Federal Register

announcing the establishment of a list of

approved persons. Persons who believe

they have been injured by a DMCA

violation may request to be added to the

list through a separate application to the

IPR Branch supplemental to an

application to record a copyright. After

the list has been established, CBP will

publish a notice in the Federal Register

when the list is revised.

IV. Other Amendments

As a consequence of the proposed

removal of §§ 133.43 and 133.44, it is

also proposed to revise a related

provision in § 113.70, which sets forth

bond conditions to indemnify the

United States for detention of

copyrighted material. CBP proposes to

revise 19 CFR 113.70 to set forth, in one

centralized location, the bond

conditions for an IPR owner to obtain

samples of imported merchandise

suspected of being infringing. Currently,

there is bond language that pertains to

IPR sample bonds in various provisions

throughout 19 CFR part 133. To reduce

redundancy, CBP is proposing to add a

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Note that this rule does not alter CBP’s ability

to provide redacted samples of an import to a right

holder without prior notification to the importer.

cross reference to the new IPR sample

bond conditions set forth in § 113.70 in

proposed § 133.21(b)(5), (c)(2), and (f),

§ 133.25(c), §133.42(b)(5), (c)(2), and (f),

and § 133.47(b)(5), (c)(2), and (f), and to

consolidate duplicated bond condition

language from these provisions.

Accordingly, CBP is proposing to

remove references to § 133.43 in existing

§ 113.42.

As noted above, CBP is proposing

additional amendments to 19 CFR

133.21 to clarify the ‘‘identifying

information’’ that CBP will redact prior

to disclosing information pursuant to

§ 133.21(b)(5). Section 133.21(b)(5)

provides examples of information that

CBP would redact prior to disclosure

under this provision, including ‘‘any

mark that could reveal the name or

address of the manufacturer, exporter,

or importer of the merchandise.’’ CBP is

proposing to replace the word ‘‘mark’’

with the more general term ‘‘markings,’’

as ‘‘mark’’ is a more narrowly defined

term of art. CBP is proposing further

changes to conform § 133.21(b) and (f) to

the related copyright (§ 133.42(b) and

(f)) and DMCA (§ 133.47(b) and (f))

provisions proposed in this document.

In addition, CBP is proposing

conforming amendments to § 133.25.

These include replacing ‘‘trademark

owner’’ with ‘‘owner of the recorded

mark’’ and replacing references to the

legacy Customs Service with CBP. CBP

is proposing to amend § 133.51(a), to

reflect the addition of proposed

§ 133.48, which will provide for

redelivery of merchandise found to

violate the DMCA. Similarly, CBP is

proposing to amend § 133.52(b) to

account for the alternative dispositions

of seized merchandise reflected in

proposed §§ 133.42(g) and 133.47(g).

Section 151.16 of title 19 of the CFR

provides for the detention of

merchandise, and states that CBP will

make a final determination with respect

to the admissibility of detained

merchandise within 30 days after the

merchandise has been presented to CBP

for examination. Within § 151.16,

paragraph (a) identifies certain

categories of articles that are excepted

from this provision, including

detentions arising from ‘‘possibly

piratical copies (see part 133, subpart E,

of this Chapter).’’ The current detention

procedures in subpart E of 19 CFR part

133 allow up to 120 days for an

importer or right holder of a suspect

article to provide CBP with evidence,

briefs, or other pertinent information to

substantiate a claim or denial of

infringement, prior to CBP’s issuance of

an admissibility determination. Due to

the proposed amendments to § 133.42,

discussed above, which shorten many of

the data exchange time frames and

require CBP to issue a final

determination with respect to the

admissibility of detained merchandise

within 30 days after the merchandise

has been presented to CBP for

examination, there is no longer any

reason to exempt possibly piratical

copies or phonorecords from the 30-day

detention period set forth in § 151.16.

Accordingly, this document proposes to

amend 19 CFR 151.16(a) by removing

the reference to ‘‘possibly piratical

copies (see part 133, subpart E, of this

Chapter)’’ and by adding a cross-

reference to 19 CFR 151.16(c) to the

notice provisions set forth in

§§ 133.42(b)(2) and 133.47(b)(2). This

document also proposes non-

substantive editorial changes to

§ 151.16.

Likewise, this document proposes to

amend 19 CFR 177.0 by removing the

existing exception for copyright

determinations under part 133.

Currently, § 133.43 provides a unique

process for determinations of copyright

infringement, an exception to the

rulings process laid out in part 177. As

a consequence of the proposed changes

to §§ 133.42 and 133.43, that process

will be replaced. As a result, rulings

related to copyright determinations may

be requested pursuant to part 177, and

no longer constitute an exception to the

process laid out therein.

In addition, this document proposes

to augment the existing personal use

exemption in 19 CFR 148.55, and clarify

its application. Currently, this

exemption provides for the entry of

limited quantities of merchandise that

otherwise would be prohibited from

entry for trademark violations, when the

merchandise accompanies any

individual arriving in the United States.

However, 17 U.S.C. 602(a)(3)(B)

provides a similar personal use

exemption permitting the entry of

merchandise otherwise prohibited for

violating copyright law, under certain

conditions. CBP has proposed

amendments to § 148.55, to reflect this

statutory exemption. The conditions are

set forth in existing § 148.55(b), which

is not being proposed for amendment.

The conditions are that (1) the

exemption ‘‘shall not be granted to any

person who has taken advantage of the

exemption for the same type of article

within the 30-day period immediately

prior to his arrival in the United States,’’

and (2) ‘‘[i]f an article which has been

exempted is sold within one year of the

date of importation, the article or its

value (to be recovered from the

importer), is subject to forfeiture’’

(except in the case of a ‘‘sale subject to

judicial order or in the liquidation of an

estate’’).

This document also proposes

amendments to the general and specific

authority citations to part 133 to more

accurately reflect the statutory authority

that pertains to the part and that which

pertains more specifically to particular

sections within part 133.

Executive Orders 12866, 13563, and

13771

Executive Orders 12866 (‘‘Regulatory

Planning and Review’’) and 13563

(‘‘Improving Regulation and Regulatory

Review’’) direct agencies to assess the

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. Executive

Order 13771 (‘‘Reducing Regulation and

Controlling Regulatory Costs’’) directs

agencies to reduce regulation and

control regulatory costs and provides

that ‘‘for every one new regulation

issued, at least two prior regulations be

identified for elimination, and that the

cost of planned regulations be prudently

managed and controlled through a

budgeting process.’’

This rule is a significant regulatory

action under section 3(f) of Executive

Order 12866. Accordingly, OMB has

reviewed this regulation. As the impacts

of this rule are de minimis, this rule is

exempt from Executive Order 13771.

See OMB’s Memorandum, ‘‘Guidance

Implementing Executive Order 13771,

Titled ‘Reducing Regulation and

Controlling Regulatory Costs’ ’’ (April 5,

2017).

One of CBP’s roles is to safeguard the

U.S. economy from the importation of

goods that violate intellectual property

rights. Under current regulations, if CBP

suspects that a shipment may be

violative, it can share redacted samples

of the suspect imported good with a

right holder.

To implement TFTEA’s

intellectual property rights provisions,

CBP is proposing regulatory changes

that will, among other things, allow it to

share unredacted images of suspect

imports with right holders, if

examination by right holders would

assist CBP’s determination.

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Source: CBP’s IPRiS database. Sampling

methodology averaged five equally spaced dates in

every fiscal year to estimate the IPRiS live

recordations available for IPR seizures (95% CI, p

= 0.05) annually. CBP took several sample counts

per year as opposed to a single annual count to

ensure a representative measure as IPRiS

recordations enter and expire throughout the year.

Source: U.S. Bureau of Labor Statistics.

Occupational Employment Statistics, ‘‘May 2017

National Occupational Employment and Wage

Estimates, United States- Median Hourly Wage by

Occupation Code.’’ Updated March 30, 2018.

Available at https://www.bls.gov/oes/2017/may/

oes_nat.htm. Accessed June 11, 2018.

The total compensation to wages and salaries

ratio is equal to the calculated average of the 2017

quarterly estimates (shown under Mar., June, Sep.,

Dec.) of the total compensation cost per hour

worked for Office and Administrative Support

occupations ($26.2600) divided by the calculated

average of the 2017 quarterly estimates (shown

under Mar., June, Sep., Dec.) of wages and salaries

cost per hour worked for the same occupation

category ($17.7425). Source of total compensation

to wages and salaries ratio data: U.S. Bureau of

Labor Statistics. Employer Costs for Employee

Compensation. Employer Costs for Employee

Compensation Historical Listing March 2004–

March 2018, ‘‘Table 3. Civilian workers, by

occupational group: employer costs per hours

worked for employee compensation and costs as a

percentage of total compensation, 2004–2018 by

respondent type.’’ March 2018. Available at https://

www.bls.gov/web/ecec/ececqrtn.pdf. Accessed June

11, 2018.

CBP reserves the right to detain any imported

merchandise, even if an importer has previously

shown that its merchandise is admissible. This will

depend on the particulars of the importation.

Previous imporations are taken into account in the

risk profile, so having proven the authenticity of an

importation in the past makes it less likely that an

importer will receive a Notice of Detention for

subsequent importations.

Sharing these unredacted samples and

images with right holders may provide

access to information about the importer

protected by the Trade Secrets Act. The

proposed rule establishes a procedure

under which, following the notice to the

importer required by 19 U.S.C. 1499, the

importer has seven business days to

establish to CBP that the suspect

imports are not piratical and are instead

admissible. If the importer is unable to

demonstrate the admissibility of its

imports within this timeframe, CBP will

share information with the right holder

by disclosing or releasing unredacted

samples of the imports in question.

As CBP is establishing a new process

for copyrights, it does not have data on

the number of times CBP suspects

shipments are piratical. However, in

2012 CBP published an interim final

rule that established similar procedures

for trademarks. (77 FR 24375,

September 24, 2012). For analytical

purposes, CBP can assume that this rule

will have similar effects after adjusting

for the differing volumes. Between fiscal

years 2014 and 2018, CBP sent out an

average of 824 detention letters every

fiscal year for suspected trademark

infringements. Based on the proportion

of live trademark recordations

available to support the agency’s IPR

seizures every fiscal year, relative to the

an average of approximately 21,423

seizures based on trademark, 8,881

based on copyright, and 116 DMCA

seizures. If the number of detention

letters is proportional to the number of

seizures, CBP would estimate that this

rule will result in 345 more detention

letters for possible copyright infringing

importations.

CBP estimates that the procedure to

demonstrate that the imports are not

piratical will take two hours per affected

importer at a cost of $29.76 per hour.

This is based on the existing

information collection for the Notice of

Detention (OMB Control Number 1651–

0073), which is being updated for this

rulemaking. CBP estimates that

importers will bear an opportunity cost

as a result of the higher number of

detention notices caused by this rule.

CBP estimates that this opportunity cost

will total $20,534 (345 * 2 * $29.76) for

29.76) for DMCA detentions for a total

monetized cost of $20,534.

CBP is also proposing to formalize the

existing practices used to enforce the

DMCA. As discussed above, in 1998,

Congress enacted the DMCA. The

DMCA prohibits the importation of

devices used to circumvent the

owners use to protect their works.

Although current regulations do not

specifically provide for detention and

seizure of articles that constitute

violations of the DMCA, CBP has

enforced the DMCA by providing CBP

personnel with internal enforcement

guidelines and advice on how to enforce

DMCA violations. In FY 2016 there were

approximately 70 DMCA seizures. It is

possible that the provisions of this rule

that were already discussed will result

in a small increase in DMCA seizures.

TFTEA requires CBP to formalize the

foregoing processes with respect to the

DMCA. The formalization of these

existing practices in regulations does

not change current practice, so this

provision will not have additional

impacts if this rule is finalized.

In addition to the proposed use of

unredacted samples, CBP is proposing

to amend the detention procedures

applicable to imported articles that are

suspected of being a piratical copy or

phonorecord of a copyrighted work. The

current detention procedures in the

regulations allow up to 120 days for an

importer or right holder of a suspect

article to provide CBP with evidence,

briefs, or other pertinent information to

substantiate a claim or denial of

infringement, prior to CBP’s issuance of

an admissibility determination. To

expedite this process, CBP is proposing

to amend the regulations to require the

agency to render an admissibility

decision within 30 days from the date

the articles are presented to CBP for

examination. As the current detention

procedures are seldom used, according

to CBP subject matter experts, CBP does

not believe the proposed changes will

impose a significant effect on the public.

The Regulatory Flexibility Act

The Regulatory Flexibility Act (5

U.S.C. 601 et. seq.) (RFA), as amended

by the Small Business Regulatory

Enforcement and Fairness Act of 1996,

requires agencies to assess the impact of

regulations on small entities. A small

entity may be a small business (defined

as any independently owned and

operated business not dominant in its

field that qualifies as a small business

per the Small Business Act); a small not-

for-profit organization; or a small

governmental jurisdiction (locality with

fewer than 50,000 people). Section 604

of the RFA requires an agency to

perform a regulatory flexibility analysis

for a rule unless the agency certifies

under section 605(b) that the regulatory

action would not have a significant

economic impact on a substantial

number of small entities.

As described in the Executive Orders

12866, 13563, and 13771 analysis above,

CBP estimates that this rule will result

in the issuance of 345 additional notices

of detention. CBP’s current examination

policies, use of shared enforcement

systems, and targeting criteria that take

into account previous examinations

when determining risk make it unlikely

that an importer who receives a notice

of detention with this rule will be

required to repeatedly prove the

admissibility of their imports.

As such,

CBP assumes for the purposes of this

analysis that the number of affected

importers from this rule will be equal to

the number of additional detention

notices resulting from this rule—345—

with each importer receiving only one

detention notice. To the extent that an

importer must prove the admissibility of

their imports more than once with this

rule, the number of importers affected

by this rule would be lower and the cost

of this rule per affected importer would

be higher.

These importers are not centered in

any particular industy; any importer of

goods covered by a recorded copyright

may be affected by this rule if CBP has

a reasonable suspicion to believe their

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See ‘‘CBP Analysis of Small Importers,’’

November 2018. Available in the docket of this

rulemaking.

imported merchandise may constitute a

piratical copy and CBP cannot

determine if an import is a piratical

copy or prohibited circumvention

device without the use of the provisions

of this rule. CBP has conducted a study

of importers to determine how many are

small entities and has concluded that

the vast majority (about 88 percent) of

importers are small entities.

Therefore,

CBP believes this rule may affect a

substantial number of small entities.

Although the proposed rule, if

adopted, may affect a substantial

number of small entities, CBP believes

the economic impact would not be

significant. As described in the

Executive Orders 12866, 13563, and

13771 section of this document, CBP

estimates that it takes an importer two

hours to provide proof of the

admissibility of an import to CBP. CBP

estimates the average wage of an

importer is $29.76 per hour. Thus, CBP

estimates it will cost a small entity

$59.52 to prove the admissibility of its

import with this rule. CBP does not

believe $59.52 constitutes a significant

economic impact.

CBP recognizes that repeated

inquiries into the admissibility of an

importer’s imports could eventually rise

to the level of a significant economic

impact. However, it is unlikely that

importers will be repeatedly required to

prove the admissibility of their imports,

as previously mentioned. Additionally,

CBP does not anticipate law-abiding

importers to be subject to the provisions

in this rule on a repeated basis. Once

CBP has determined the admissibility of

an importation, it will record that

information in the system so it can be

viewed by CBP import specialists on

future importations and successful

previous imporations are a favorable

factor in the importation’s risk profile.

Further, CBP notes that providing this

information to CBP is optional on the

part of the importer. Therefore, CBP

believes there will not be a significant

economic impact on small entities.

Accordingly, although this rule may

have an effect on a substantial number

of small entities, as discussed above,

CBP believes that an estimated cost of

$59.52 to an importer does not

constitute a significant economic

impact. Thus, CBP certifies this

regulation would not have a significant

economic impact on a substantial

number of small entities.

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 Notice

of Detention for OMB control number

1651–0073 are as follows:

Number of Respondents: 1,695.

Number of Responses: 1.

Time per Response: 2 hours.

Total Annual Burden Hours: 3,390.

Because CBP estimates that the

availability of the procedures in this

proposed rule will increase the number

of Notices of Detention issued for IPR

violations, there is an increase in

burden hours under this collection with

this proposed rule.

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 copyright enforcement.

List of Subjects

19 CFR Part 113

Bonds, Customs duties and

inspection, Imports, Surety bonds.

19 CFR Part 133

Bonds, Circumvention devices, Copy

or simulating trademarks, Copyrights,

Counterfeit goods, Customs duties and

inspection, Demand for redelivery,

Detentions, Disclosure, Labeling,

Liquidated damages, Piratical copies,

Phonorecords, Recordation, Restricted

merchandise, Seizures and forfeitures,

Trademarks, Trade names.

19 CFR Part 148

inspection, Trademarks.

19 CFR Part 151

Customs duties and inspection,

Examination, Imports, Penalties,

Reporting and recordkeeping

requirements, Sampling and testing.

19 CFR Part 177

Administrative practice and

procedure, Government procurement,

Reporting and recordkeeping

requirements.

Proposed Amendments to the CBP

Regulations

For the reasons stated above in the

preamble, CBP proposes to amend 19

CFR parts 113, 133, 148, 151 and 177 as

follows:

PART 113—CBP BONDS

■1. The general authority citation for

part 113 continues to read as follows:

Authority: 19 U.S.C. 66, 1623, 1624.

* * * * *

■2. Section 113.42 is revised to read as

follows:

§ 113.42 Time period for production of

documents.

Except when another period is fixed

by law or regulations, any document for

the production of which a bond or

stipulation is given must be delivered

within 120 days from the date of notice

from CBP requesting such document. If

the period ends on a Saturday, Sunday,

or holiday, delivery on the next

business day will be accepted as timely.

■3. Section 113.70 is revised to read as

follows:

§ 113.70 Bond conditions for owners of

recorded marks or recorded copyrights to

obtain samples from CBP relating to

importation of merchandise suspected of

infringing recorded marks or recorded

copyrights, or circumventing copyright

protection measures.

Prior to obtaining samples of

imported merchandise pursuant to

§§ 133.21, 133.25, 133.42, or 133.47 of

this chapter, for suspected infringement

of a recorded mark or recorded

of a protection measure safeguarding a

recorded copyright, the owner of the

recorded mark or the recorded copyright

must furnish to CBP a single transaction

bond in the amount specified by CBP

containing the conditions listed in this

section.

Bond Conditions for Owners of

Recorded Marks or Recorded

Copyrights To Obtain Samples From

CBP Relating to Importation of

Merchandise Suspected of Infringing

Such Recorded Marks or Recorded

Copyrights, or Circumventing Copyright

Protection Measures

(a) Agreement to use sample for

limited purpose of assisting CBP. If CBP

provides to an owner of a recorded mark

or a recorded copyright a sample of

imported merchandise suspected of

infringing the recorded mark or

circumventing a copyright protection

measure, including samples provided

pursuant to §§ 133.21, 133.25, 133.42, or

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133.47 of this chapter, the obligors

(principal and surety) agree that such

samples may only be used for the

limited purpose of providing assistance

to CBP in enforcing intellectual property

rights.

(b) Agreement to indemnify—(1)

Improper use of sample. If the sample

identified in paragraph (a) of this

section is used by the owner of the

recorded mark or the recorded copyright

for any purpose other than to provide

assistance to CBP in enforcing

intellectual property rights, the obligors

(principal and surety) agree to

indemnify the importer or owner of the

imported merchandise, in the amount

specified by CBP, against any loss or

damage resulting from the improper use.

(2) Physical loss, damage, or

destruction of disclosed sample. The

owner of a recorded mark or a recorded

identified in paragraph (a) of this

section upon demand by CBP or at the

conclusion of any examination, testing,

or similar procedure performed on the

sample. If the sample identified in

paragraph (a) of this section is lost,

damaged, or destroyed as a result of

CBP’s furnishing it to such owner, the

obligors (principal and surety) agree to

indemnify the importer or owner of the

imported merchandise, in the amount

specified by CBP, against any resulting

loss or damage.

PART 133—TRADEMARKS, TRADE

NAMES, AND COPYRIGHTS

■4. The general authority citation for

part 133 is revised to read as follows,

the specific authority for §§ 133.21 to

133.25 is removed, and a specific

authority citation for § 133.47 is added

to read as follows:

Authority: 15 U.S.C. 1124, 1125, 1127; 17

U.S.C. 101, 104, 106, 601, 602, 603; 18 U.S.C.

1905; 19 U.S.C. 66, 1202, 1499, 1526, 1595a,

1623, 1624, 1628a; 31 U.S.C. 9701.

Section 133.47 also issued under 17 U.S.C.

1201.

* * * * *

§ 133.0 Scope.

■5. In § 133.0, revise the last sentence

to read as follows:

* * * It also sets forth the procedures

for the disposition, including release to

the importer in appropriate

circumstances, of articles bearing

prohibited marks or names, piratical

articles, and prohibited circumvention

devices, as well as the disclosure of

information concerning such articles

when such disclosure would not

compromise an ongoing law

enforcement investigation or national

security.

■6. Amend § 133.21 by:

■a. Removing the words ‘‘owner of the

mark’’ wherever they appear and adding

in their place the words ‘‘owner of the

recorded mark’’;

■b. Revising paragraphs (b)(2)(ii) and

(b)(3) and the second sentence of

paragraph (b)(4) introductory text;

■c. Removing the word ‘‘mark’’ and

adding in its place the word ‘‘markings’’

in the second sentence of paragraph

(b)(5);

■d. Revising the third sentence of

paragraph (b)(5) and the first sentence of

paragraph (c)(2) and paragraph (f).

The revisions read as follows:

§ 133.21 Articles suspected of bearing

counterfeit marks.

* * * * *

(b) * * *

(2) * * *

(ii) Failure of importer to respond or

insufficient response to notice. Where

the importer does not provide

information within the seven business

day response period, or the information

is insufficient for CBP to determine that

the merchandise does not bear a

counterfeit mark, CBP will proceed with

the disclosure of information as

described in paragraph (b)(3) of this

section to the owner of the recorded

mark if CBP concludes that the

disclosure would assist CBP in its

determination, and provided that the

disclosure would not compromise an

ongoing law enforcement investigation

or national security. CBP will notify the

importer in case of any such disclosure.

(3) Disclosure to owner of the

recorded mark of information appearing

on detained merchandise and/or its

retail packaging, including unredacted

photographs, images or samples. CBP

will disclose information appearing on

the merchandise and/or its retail

packaging (including labels) and images

(including photographs) of the

merchandise and/or its retail packaging

in its condition as presented for

examination (i.e., an unredacted

condition) if CBP concludes that the

disclosure of information to the owner

of the mark as described in paragraph

(b)(2)(ii) of this section would assist

CBP in its determination, and provided

that disclosure would not compromise

an ongoing law enforcement

investigation or national security. CBP

may also provide a sample of the

merchandise and/or its retail packaging

in its condition as presented for

examination to the owner of the

recorded mark. The release of a sample

will be in accordance with, and subject

to, the bond and return requirements of

paragraph (c) of this section. The

disclosure may include any serial

numbers, dates of manufacture, lot

codes, batch numbers, universal product

codes, or other identifying markings

appearing on the merchandise or its

retail packaging (including labels), in

alphanumeric or other formats.

(4) * * * If the information is

unavailable at the time the notice of

detention is issued, CBP may release the

information after issuance of the notice

of detention. * * *

* * * * *

(5) * * * CBP may release a sample

under this paragraph when the owner of

the recorded mark furnishes to CBP a

bond in an amount specified by CBP

and containing the conditions set forth

in § 113.70 of this chapter. * * *

* * * * *

(2) * * * CBP may release a sample

under paragraphs (b)(2)(ii) and (3) of

this section when the owner of the

recorded mark furnishes to CBP a bond

in an amount specified by CBP and

containing the conditions set forth in

§ 113.70 of this chapter. * * *

* * * * *

(f) Disclosure to owner of the recorded

mark, following seizure, of unredacted

photographs, images, and samples. At

any time following a seizure of

merchandise bearing a counterfeit mark

under this section, and upon receipt of

a proper request from the owner of the

recorded mark, CBP may provide, if

available, photographs, images, or a

sample of the seized merchandise and

its retail packaging, in its condition as

presented for examination, to the owner

of the recorded mark. CBP may release

a sample under this paragraph when the

owner of the recorded mark furnishes to

CBP a bond in an amount specified by

CBP and containing the conditions set

forth in § 113.70 of this chapter. CBP

may demand the return of the sample at

any time. The owner of the recorded

mark must return the sample to CBP

upon demand or at the conclusion of the

examination, testing, or other use. In the

event that the sample is damaged,

destroyed, or lost while in the

possession of the owner of the recorded

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(f) was (damaged/destroyed/lost)

during examination, testing, or other

use.’’

* * * * *

§ 133.25 [Amended]

■7. Section 133.25 is amended:

■a. By removing the word ‘‘Customs’’

wherever it appears, and in its place

adding the word ‘‘CBP’’;

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■b. In paragraph (b) by removing the

words ‘‘owner of the trademark’’

wherever it appears, and adding in their

place the words ‘‘owner of the recorded

mark’’; and

■c. In paragraph (c):

■i. By removing the words ‘‘trademark

or trade name owner’’ and adding in

their place the words ‘‘owner of the

recorded mark or trade name’’ in the

paragraph heading;

■ii. By removing the words ‘‘owner of

the trademark’’ and adding in their

place ‘‘owner of the recorded mark’’ in

the first sentence;

■iii. By revising the second sentence;

and

■iv. By removing the words ‘‘trademark

or trade name owner’’ and adding in

their place the words ‘‘owner of the

recorded mark or trade name’’ in the

fifth sentence.

The revision reads as follows:

§ 133.25 Procedure on detention of articles

subject to restriction.

* * * * *

under this paragraph when the owner of

the recorded mark or trade name

furnishes to CBP a bond in an amount

specified by CBP and containing the

conditions set forth in § 113.70 of this

chapter. * * *

* * * * *

■8. Section 133.42 is revised to read as

follows:

§ 133.42 Piratical articles; Unlawful copies

or phonorecords of recorded copyrighted

works.

(a) Definition. A ‘‘piratical article,’’ for

purposes of this part, is an unlawfully

made (without the authorization of the

of a recorded copyrighted work,

importation of which is prohibited by

the Copyright Act of 1976, as amended.

(b) Detention, notice, and disclosure

of information—(1) Detention period.

CBP may detain any article of domestic

or foreign manufacture imported into

the United States that is suspected of

constituting a piratical article in

violation of a copyright recorded with

CBP. The detention will be for a period

of up to 30 days from the date on which

the merchandise is presented for

examination. In accordance with 19

U.S.C. 1499(c), if, after the detention

period, the article is not released, the

article will be deemed excluded for

purposes of 19 U.S.C. 1514(a)(4).

(2) Notice of detention to importer

and disclosure to owner of the recorded

copyrighted work—(i) Notice and seven

business day response period. Within

five business days from the date of a

decision to detain suspect merchandise,

CBP will notify the importer in writing

of the detention as set forth in

§ 151.16(c) of this chapter and 19 U.S.C.

1499. CBP will also inform the importer

that for purposes of assisting CBP in

determining whether the detained

merchandise is a piratical article:

(A) CBP may have previously

disclosed to the owner of the recorded

of detention, limited importation

information concerning the detained

merchandise, as described in paragraph

(b)(4) of this section, and, in any event,

such information may be released to the

owner of the recorded copyright, if

available, no later than the date of

issuance of the notice of detention; and

(B) CBP may disclose to the owner of

the recorded copyright information that

appears on the detained merchandise

and/or its retail packaging, including

unredacted photographs, images, or

samples, as described in paragraph

(b)(3) of this section, unless the importer

provides information within seven

business days of the notification

establishing that the detained

merchandise is not piratical.

(ii) Failure of importer to respond or

insufficient response to notice. Where

the importer does not provide

information within the seven business

day response period, or the information

provided is insufficient for CBP to

determine that the merchandise is not

piratical, CBP will proceed with the

disclosure of information as described

in paragraph (b)(3) of this section to the

owner of the recorded copyright, if CBP

concludes that the disclosure would

assist CBP in its determination, and

provided that disclosure would not

compromise an ongoing law

enforcement investigation or national

security. CBP will notify the importer in

case of any such disclosure.

(3) Disclosure to owner of the

recorded copyright of information

appearing on detained merchandise

and/or its retail packaging, including

unredacted photographs, images, or

samples. CBP will disclose information

appearing on the merchandise and/or its

retail packaging (including labels), and

images (including photographs) of the

merchandise and/or its retail packaging

in its condition as presented for

examination (i.e., an unredacted

condition) if CBP concludes that the

disclosure of information to the owner

of the recorded copyright as described

in paragraph (b)(2)(ii) of this section

would assist CBP in its determination,

and provided that disclosure would not

compromise an ongoing law

enforcement investigation or national

security. CBP may also provide a sample

of the merchandise and/or its retail

packaging in its condition as presented

for examination to the owner of the

recorded copyright. The release of a

sample will be in accordance with, and

subject to, the bond and return

requirements of paragraph (c) of this

section. The disclosure may include any

serial numbers, dates of manufacture,

lot codes, batch numbers, universal

product codes, or other identifying

markings appearing on the merchandise

or its retail packaging (including labels),

in alphanumeric or other formats.

(4) Disclosure to owner of recorded

information. From the time merchandise

is presented for examination, CBP may

disclose to the owner of the recorded

information to obtain assistance in

determining whether an imported

article is a piratical article. If the

information is unavailable at the time

the notice of detention is issued, CBP

may release the information after

issuance of the notice of detention. The

limited importation information CBP

may disclose to the owner of the

recorded copyright consists of:

(i) The date of importation;

(ii) The port of entry;

(iii) The description of the

merchandise, for merchandise not yet

detained, from the paper or electronic

equivalent of the entry (as defined in

§ 142.3(a)(1) or (b) of this chapter), the

CBP Form 7512, cargo manifest,

advance electronic information or other

entry document as appropriate, or, for

detained merchandise, from the notice

of detention;

(iv) The quantity, for merchandise not

yet detained, as declared on the paper

or electronic equivalent of the entry (as

defined in § 142.3(a)(1) or (b) of this

chapter), the CBP Form 7512, cargo

manifest, advance electronic

information, or other entry document as

appropriate, or, for detained

merchandise, from the notice of

detention; and

(v) The country of origin of the

merchandise.

(5) Disclosure to owner of recorded

images and samples. Notwithstanding

the notice and seven business day

response procedure of paragraph (b)(2)

of this section, CBP may, in order to

obtain assistance in determining

whether an imported article is a

piratical article and at any time after

presentation of the merchandise for

examination, provide to the owner of

the recorded copyright photographs,

images, or a sample of the suspect

merchandise or its retail packaging

(including labels), provided that

identifying information has been

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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 markings that

could reveal the name or address of the

manufacturer, exporter, or importer of

the merchandise, in alphanumeric or

other formats. CBP may release a sample

under this paragraph when the owner of

the recorded copyright furnishes to CBP

a bond in an amount specified by CBP

and containing the conditions set forth

in § 113.70 of this chapter. CBP may

demand the return of the sample at any

time. The owner of the recorded

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 recorded

return of the sample, certify to CBP that:

‘‘The sample described as [insert

description] and provided pursuant to

19 CFR 133.42(b)(5) was (damaged/

destroyed/lost) during examination,

testing, or other use.’’

of recorded copyright of information

appearing on detained merchandise

and/or its retail packaging, including

unredacted photographs, images and

samples—(1) Disclosure for limited

purpose of assisting CBP in piratical

merchandise determinations. In

accordance with paragraphs (b)(2)(ii)

and (b)(3) of this section, when CBP

discloses information to the owner of

the recorded copyright prior to seizure,

CBP will notify the owner of the

recorded copyright that some or all of

the information being released may be

subject to the protections of the Trade

Secrets Act, and that CBP is only

disclosing the information to the owner

of the recorded copyright for the

purpose of assisting CBP in determining

whether the merchandise is a piratical

article.

(2) Bond. CBP may release a sample

under paragraphs (b)(2)(ii) and (3) of

this section when the owner of the

recorded copyright furnishes to CBP a

bond in an amount specified by CBP

and containing the conditions set forth

in § 113.70 of this chapter. CBP may

demand the return of the sample at any

time. The owner of the recorded

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 recorded

return of the sample, certify to CBP that:

‘‘The sample described as [insert

description] and provided pursuant to

19 CFR 133.42(c) was (damaged/

destroyed/lost) during examination,

testing, or other use.’’

(d) Disclosure to importer of

unredacted photographs, images, and

samples. CBP will disclose to the

importer unredacted photographs,

images, or an unredacted sample of

imported merchandise suspected of

being a piratical article at any time after

the merchandise is presented to CBP for

examination. CBP may demand the

return of the sample at any time. The

importer 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 importer, the importer

must, in lieu of return of the sample,

certify to CBP that: ‘‘The sample

described as [insert description] and

provided pursuant to 19 CFR 133.42(d)

was (damaged/destroyed/lost) during

examination, testing, or other use.’’

(e) Seizure and disclosure to owner of

the recorded copyright of

comprehensive importation

information. 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 is a piratical article,

CBP will seize such merchandise and,

in the absence of the written consent of

the owner of the recorded copyright (see

paragraph (g) of this section), 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 recorded

importation information, if available,

within 30 business days from the date

of the notice of the seizure:

(1) The date of importation;

(2) The port of entry;

(3) The description of the

merchandise from the notice of seizure;

(4) The quantity as set forth in the

notice of seizure;

(5) The country of origin of the

merchandise;

(6) The name and address of the

manufacturer;

(7) The name and address of the

exporter; and

(8) The name and address of the

importer.

(f) Disclosure to owner of recorded

unredacted photographs, images, and

samples. At any time following a seizure

of a piratical article under this section,

and upon receipt of a proper request

from the owner of the recorded

available, photographs, images, or a

sample of the seized merchandise and

its retail packaging, in its condition as

presented for examination, to the owner

of the recorded copyright. CBP may

release a sample under this paragraph

when the owner of the recorded

amount specified by CBP and

containing the conditions set forth in

§ 113.70 of this chapter. CBP may

demand the return of the sample at any

time. The owner of the recorded

CBP upon demand or at the conclusion

of the examination, testing, or other use.

In the event that the sample is damaged,

destroyed, or lost while in the

possession of the owner of the recorded

return of the sample, certify to CBP that:

‘‘The sample described as [insert

description] and provided pursuant to

19 CFR 133.42(f) was (damaged/

destroyed/lost) during examination,

testing, or other use.’’

(g) Consent of the owner of the

recorded copyright; failure to make

appropriate disposition. The owner of

the recorded copyright, 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 recorded copyright,

or other appropriate disposition.

Otherwise, the merchandise will be

disposed of in accordance with § 133.52,

subject to the importer’s right to petition

for relief from forfeiture under the

provisions of part 171 of this chapter.

§§ 133.43 and 133.44 [Removed and

Reserved]

■9. Sections 133.43 and 133.44 are

removed and reserved.

■10. Redesignate subpart F as subpart

G and add new subpart F, consisting of

§§ 133.47 and 133.48, to read as follows:

Subpart F—Enforcement of the

Prohibition on Importation of

Merchandise Capable of

Circumventing Technological

Measures for Protection of Copyright

§ 133.47 Articles suspected of violating

the Digital Millennium Copyright Act

(a) Definitions—(1) Copyright

protection measure. A technological

measure that effectively controls access

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to a copyrighted work for which the

(2) Articles that violate the DMCA.

Articles that violate the importation

prohibitions of the Digital Millennium

consist of products, devices,

components, or parts thereof primarily

designed or produced for the purpose of

circumventing a copyright protection

measure, or which have only a limited

commercially significant purpose or use

other than such circumvention, or

which are knowingly marketed by the

manufacturer, importer, consignee, or

other trafficker in such articles, or

another acting in concert with the

manufacturer importer, consignee, or

trafficker for use in such circumvention.

(3) Eligible person. The owner of a

recorded copyright, who employs a

have been circumvented or attempted to

be circumvented by articles that violate

the importation prohibitions of the

DMCA.

(4) Injured person. The owner of a

recorded copyright, who employs a

been circumvented or attempted to be

circumvented by articles seized for

violation of the importation prohibitions

of the DMCA, and who has successfully

applied to CBP for DMCA protections

pursuant to paragraph (b)(2)(iii) of this

section.

(b) Detention, notice, and disclosure

of information—(1) Detention period.

CBP may detain any article of domestic

or foreign manufacture imported into

the United States that it suspects is in

violation of the DMCA, as described in

paragraph (a)(1) of this section. The

detention will be for a period of up to

30 days from the date on which the

merchandise is presented for

examination. In accordance with 19

U.S.C. 1499(c), if, after the detention

period, the article is not released, the

article will be deemed excluded for the

purposes of 19 U.S.C. 1514(a)(4).

(2) Notice of detention to importer

and disclosure to eligible persons—(i)

Notice and seven business day response

period. Within five business days from

the date of a decision to detain suspect

merchandise, CBP will notify the

importer in writing of the detention as

set forth in § 151.16(c) of this chapter

and 19 U.S.C. 1499. CBP will also

inform the importer that for purposes of

assisting CBP in determining whether

the detained merchandise violates the

DMCA:

(A) CBP may have previously

disclosed to the eligible person, prior to

issuance of the notice of detention,

limited importation information

concerning the detained merchandise,

as described in paragraph (b)(4) of this

section, and, in any event, such

information may be released to the

eligible person, if available, no later

than the date of issuance of the notice

of detention; and

(B) CBP may disclose to the eligible

person information that appears on the

detained merchandise and/or its retail

packaging, including unredacted

photographs, images, or samples, as

described in paragraph (b)(3) of this

section, unless the importer provides

information within seven business days

of the notification establishing that the

detained merchandise does not violate

the DMCA.

(ii) Failure of importer to respond or

insufficient response to notice. Where

the importer does not provide

information within the seven business

day response period, or the information

provided is insufficient for CBP to

determine that the merchandise does

not violate the DMCA, CBP will proceed

with the disclosure of information, as

described in paragraph (b)(3) of this

section, to the eligible person if CBP

concludes that the disclosure would

assist CBP in its determination, and

provided that the disclosure would not

compromise an ongoing law

enforcement investigation or national

security. CBP will notify the importer in

case of any such disclosure.

(iii) Request for DMCA protections

and establishment of a list of persons

approved for post-seizure disclosures.

Eligible persons may apply to receive

post-seizure disclosures from CBP by

attaching a letter requesting such

disclosures to an application to record

CBP approves for such disclosures to a

list that CBP will maintain. CBP will

provide the post-seizure disclosures

described in this section to injured

persons, as defined in this part,

appearing on the list. CBP will publish

notice of the establishment of the list in

the Federal Register. After the list has

been established, CBP will publish

notice of revisions to the list in the

Federal Register.

(3) Disclosure to eligible persons of

information appearing on detained

merchandise and/or its retail packaging,

including unredacted photographs,

images or samples. CBP will disclose

information appearing on the

merchandise and/or its retail packaging

(including labels) and images (including

photographs) of the merchandise and/or

its retail packaging in its condition as

presented for examination (i.e., an

unredacted condition) if CBP concludes

that the disclosure of information to the

eligible person as described in

paragraph (b)(2)(ii) of this section would

assist CBP in its determination, and

provided that the disclosure would not

compromise an ongoing law

enforcement investigation or national

security. CBP may also provide a sample

of the merchandise and/or its retail

packaging in its condition as presented

for examination to the eligible person.

The release of a sample will be in

accordance with, and subject to, the

bond and return requirements of

paragraph (c) of this section. The

disclosure may include any serial

numbers, dates of manufacture, lot

codes, batch numbers, universal product

codes, or other identifying markings

appearing on the merchandise or its

retail packaging (including labels), in

alphanumeric or other formats.

(4) Disclosure to eligible person of

limited importation information. From

the time merchandise is presented for

examination, CBP may disclose to the

eligible person limited importation

information in order to obtain assistance

in determining whether an imported

article violates the DMCA. If the

information is unavailable at the time

the notice of detention is issued, CBP

may release the information after

issuance of the notice of detention. The

limited importation information CBP

may disclose to the eligible person

consists of:

(i) The date of importation;

(ii) The port of entry;

(iii) The description of the

merchandise, for merchandise not yet

detained, from the paper or electronic

equivalent of the entry (as defined in

§ 142.3(a)(1) or (b) of this chapter), the

CBP Form 7512, cargo manifest,

advance electronic information or other

entry document as appropriate, or, for

detained merchandise, from the notice

of detention;

(iv) The quantity, for merchandise not

yet detained, as declared on the paper

or electronic equivalent of the entry (as

defined in § 142.3(a)(1) or (b) of this

chapter), the CBP Form 7512, cargo

manifest, advance electronic

information, or other entry document as

appropriate, or, for detained

merchandise, from the notice of

detention; and

(v) The country of origin of the

merchandise.

(5) Disclosure to eligible person of

redacted photographs, images and

samples. Notwithstanding the notice

and seven business day response

procedure of paragraph (b)(2) of this

section, CBP may, in order to obtain

assistance in determining whether an

imported article violates the DMCA and

at any time after presentation of the

merchandise for examination, provide

to the eligible person photographs,

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images, or a sample of the suspect

merchandise or its retail packaging

(including labels), 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 markings that

could reveal the name or address of the

manufacturer, exporter, or importer of

the merchandise, in alphanumeric or

other formats. CBP may release a sample

under this paragraph when the eligible

person furnishes to CBP a bond in an

amount specified by CBP and

containing the conditions set forth in

§ 113.70 of this chapter. CBP may

demand the return of the sample at any

time. The eligible person 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 eligible

person, the eligible person must, in lieu

of return of the sample, certify to CBP

that: ‘‘The sample described as [insert

description] and provided pursuant to

19 CFR 133.47(b)(5) was (damaged/

destroyed/lost) during examination,

testing, or other use.’’

person of information appearing on

detained merchandise and/or its retail

packaging, including unredacted

photographs, images and samples—(1)

Disclosure for limited purpose of

assisting CBP in DMCA determinations.

In accordance with paragraphs (b)(2)(ii)

and (3) of this section, when CBP

discloses information to an eligible

person prior to seizure, CBP will notify

the eligible person that some or all of

the information being released may be

subject to the protections of the Trade

Secrets Act, and that CBP is only

disclosing the information to the eligible

person for the purpose of assisting CBP

in determining whether the

merchandise violates the DMCA.

(2) Bond. CBP may release a sample

under paragraphs (b)(2)(ii) and (3) of

this section when the eligible person

furnishes to CBP a bond in an amount

specified by CBP and containing the

conditions set forth in § 113.70 of this

chapter. CBP may demand the return of

the sample at any time. The eligible

person 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 eligible person, the

eligible person must, in lieu of return of

the sample, certify to CBP that: ‘‘The

sample described as [insert description]

and provided pursuant to 19 CFR

133.47(c) was (damaged/destroyed/lost)

during examination, testing, or other

use.’’

(d) Disclosure to importer of

unredacted photographs, images or

samples. CBP will disclose to the

importer unredacted photographs,

images, or an unredacted sample of

imported merchandise suspected of

violating the DMCA at any time after the

merchandise is presented to CBP for

examination. CBP may demand the

return of the sample at any time. The

importer 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 importer, the importer

must, in lieu of return of the sample,

certify to CBP that: ‘‘The sample

described as [insert description] and

provided pursuant to 19 CFR 133.47(d)

was (damaged/destroyed/lost) during

examination, testing, or other use.’’

(e) Seizure and disclosure to injured

person of comprehensive importation

information. 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 violates the DMCA as

described in paragraph (a)(1) of this

section, CBP will seize such

merchandise and, in the absence of

written consent of the injured person

(see paragraph (g) of this section), forfeit

the seized merchandise in accordance

with the customs laws. When

merchandise is seized under this

section, CBP will disclose to the injured

person the following comprehensive

importation information, if available,

within 30 business days from the date

of the notice of the seizure:

(1) The date of importation;

(2) The port of entry;

(3) The description of the

merchandise from the notice of seizure;

(4) The quantity as set forth in the

notice of seizure;

(5) The country of origin of the

merchandise;

(6) The name and address of the

manufacturer;

(7) The name and address of the

exporter; and

(8) The name and address of the

importer.

(f) Disclosure to injured person,

following seizure, of unredacted

photographs, images and samples. At

any time following a seizure of DMCA-

violative merchandise under this

section, and upon receipt of a proper

request from the injured person, CBP

may provide, if available, photographs,

images, or a sample of the seized

merchandise and its retail packaging or

labels, in its condition as presented for

examination, to the injured person. CBP

may release a sample under this

paragraph when the injured party

furnishes to CBP a bond in an amount

specified by CBP and containing the

conditions set forth in § 113.70 of this

chapter. CBP may demand the return of

the sample at any time. The injured

person must return the sample to CBP

upon demand or at the conclusion of the

examination, testing, or other use. In the

event that the sample is damaged,

destroyed, or lost while in the

possession of the injured person, the

injured person must, in lieu of return of

the sample, certify to CBP that: ‘‘The

sample described as [insert description]

and provided pursuant to 19 CFR

133.47(f) was (damaged/destroyed/lost)

during examination, testing, or other

use.’’

(g) Consent of the owner of the

recorded copyright; failure to make

appropriate disposition. The owner of

the recorded copyright, 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 recorded copyright,

or other appropriate disposition.

Otherwise, the merchandise will be

disposed of in accordance with § 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.

§ 133.48 Demand for redelivery of released

articles

If it is determined that articles which

have been released from CBP custody

are subject to the prohibitions or

restrictions of this subpart, an

authorized CBP official will promptly

make demand for redelivery of the

articles in accordance with § 141.113 of

this chapter. If the articles are not

redelivered to CBP custody under the

terms of the bond on CBP Form 301,

containing the bond conditions set forth

in § 113.62 of this chapter, a claim for

liquidated damages will be made in

accordance with § 141.113 of this

chapter.

§ 133.51 [Amended]

■11. Section 133.51 is amended in

paragraph (a) by:

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■a. Adding the words ’’ including the

DMCA,’’ after the words ‘‘trademark or

■b. Removing the phrase ‘‘§ 133.24 or

§ 133.46.’’ and adding in its place the

phrase ‘‘§§ 133.24, 133.46, or 133.48 of

this part.’’

§ 133.52 [Amended]

■12. Section 133.52 is amended in

paragraph (b) by adding the phrase

‘‘except as provided in §§ 133.42(g) and

133.47(g) of this part’’ after the word

‘‘destroyed’’.

PART 148—PERSONAL

DECLARATIONS AND EXEMPTIONS

■13. The general authority citation for

part 148 continues and new specific

authority is added for § 148.55, to read

as follows:

Authority: 19 U.S.C. 66, 1496, 1498, 1624.

The provisions of this part, except for subpart

C, are also issued under 19 U.S.C. 1202

(General Note 3(i), Harmonized Tariff

Schedule of the United States).

* * * * *

Section 148.55 also issued under 17 U.S.C.

602 and 19 U.S.C. 1526;

* * * * *

■14. Amend § 148.55 by revising the

section heading and paragraphs (a) and

§ 148.55 Exemption for articles embodying

American trademark or copyright.

(a) Application of Exemption. An

exemption is provided for articles

bearing a counterfeit mark (as defined in

§ 133.21(a) of this chapter) or piratical

articles (as defined in § 133.42(a) of this

chapter) accompanying any person

arriving in the United States which

would be prohibited entry under 19

U.S.C. 1526, 15 U.S.C. 1124, or 17

U.S.C. 602. The exemption may be

applied either to those piratical articles

or to those articles bearing a counterfeit

mark that are of foreign manufacture

and bear a recorded mark owned by a

citizen of, or a corporation or

association created or organized within,

the United States, when imported for

the arriving person’s personal use in the

quantities provided in paragraph (c) of

this section.

* * * * *

days, persons arriving in the United

States may apply the exemption to the

following: one piratical article of each

type, or one article of each type bearing

a counterfeit mark, and/or one piratical

article of each type that is also an article

bearing a counterfeit mark. The

Commissioner shall determine if more

than one article may be entered and,

with the approval of the Secretary of the

Treasury, publish in the Federal

quantities of each entitled to the

exemption. If the owner of a recorded

mark or recorded copyright allows

importation of more than one article

normally prohibited entry under 19

U.S.C. 1526, 15 U.S.C. 1124, or 17

U.S.C. 602, the total of those articles

authorized by the owner may be entered

without penalty.

PART 151—EXAMINATION,

SAMPLING, AND TESTING OF

MERCHANDISE

■15. 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;

* * * * *

■16. Amend § 151.16 by:

■a. Revising paragraphs (a), (b), and (c);

■b. Removing the word ‘‘Customs’’

wherever it appears and adding in its

place the term ‘‘CBP’’, and removing the

word ‘‘shall’’ wherever it appears and

adding in its place the word ‘‘will’’ in

paragraph (d);

■c. Removing the word ‘‘Customs’’ and

adding in its place the term ‘‘CBP’’ in

paragraph (e);

■d. Removing the word ‘‘Customs’’

wherever it appears and adding in its

place the term ‘‘CBP’’, and removing the

word ‘‘shall’’ and adding in its place the

word ‘‘will’’ in paragraph (f);

■e. Removing the word ‘‘shall’’ and

adding in its place the word ‘‘will’’ in

paragraph (g);

■f. Removing the word ‘‘Customs’’ and

adding in its place the term ‘‘CBP’’ in

paragraph (h);

■g. Removing the word ‘‘Customs’’ and

adding in its place the term ‘‘CBP’’, and

removing the word ‘‘shall’’ and adding

in its place the word ‘‘will’’ in

paragraph (i); and

■h. Removing the word ‘‘Customs’’ and

adding in its place the term ‘‘CBP’’ in

paragraph (j).

The revisions read as follows:

§ 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.

(b) Decision to detain or release.

Within five business days from the date

on which merchandise is presented for

CBP examination, CBP will decide

whether to release or detain

merchandise. Merchandise that is not

released within the five business day

period will be considered to be detained

merchandise under 19 U.S.C. 1499(c)(1).

For purposes of this section,

merchandise will be considered to be

presented for CBP examination when it

is in a condition to be viewed and

examined by a CBP officer. Mere

presentation to the examining officer of

a cargo van, container, or instrument of

international traffic in which the

merchandise to be examined is

contained will not be considered to be

presentation of merchandise for CBP

examination for purposes of this

section. Except when merchandise is

examined at the public stores, the

importer must pay all costs relating to

the preparation and transportation of

merchandise for CBP examination.

to detain merchandise is made, or the

merchandise is not released within the

five business day period described in

paragraph (b) of this section, CBP will

issue a notice to the importer or other

party having an interest in such

merchandise within five business days

from such decision or failure to release.

Issuance of a notice of detention is not

to be construed as a final determination

as to admissibility of the merchandise.

The notice will be prepared by the CBP

officer detaining the merchandise and

will advise the importer or other

interested party of the:

(1) Initiation of the detention,

including the date the merchandise was

presented for examination;

(2) Specific reason for the detention;

(3) Anticipated length of the

detention;

(4) Nature of the tests or inquiries to

be conducted; and

(5) Nature of any information which,

if supplied to CBP, may accelerate the

disposition of the detention.

* * * * *

PART 177—ADMINISTRATIVE

RULINGS

■17. The general authority citation for

part 177 continues to read as follows:

Authority: 5 U.S.C. 301, 19 U.S.C. 66, 1202

(General Note 3(i), Harmonized Tariff

Schedule of the United States), 1502, 1624,

1625.

* * * * *

§ 177.0 [Amended]

■18. In § 177.0 remove the words ‘‘part

133 (relating to disputed claims of

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E.O. 13272, Sec. 1, 67 FR 53461 (‘‘Proper

Consideration of Small Entities in Agency

Rulemaking’’).

Under the RFA, the term ‘‘small entity’’ has the

same meaning as ‘‘small business,’’ ‘‘small

organization,’’ and ‘‘small governmental

jurisdiction.’’ 5 U.S.C. 601(6).

5 U.S.C. 605(b).

5 U.S.C. 601.

Small Business Administration Office of

Advocacy, ‘‘A Guide for Government Agencies:

How to Comply with the Regulatory Flexibility

Act’’ (‘‘SBA Guide’’) at 18, https://www.sba.gov/

sites/default/files/advocacy/How-to-Comply-with-

the-RFA-WEB.pdf.

After a review of the comments, the Board may

elect to certify that the rule will not have a

significant economic impact on a substantial

number of small entities in the publication of the

final rule. 5 U.S.C. 605(b).

5 U.S.C. 603(b).

piratical copying of copyrighted

matter),’’.

Robert E. Perez,

Deputy Commissioner, U.S. Customs and

Border Protection.

Approved: October 2, 2019.

Timothy E. Skud,

Deputy Assistant Secretary of the Treasury.

[FR Doc. 2019–21980 Filed 10–15–19; 8:45 am]

BILLING CODE 9111–14–P

NATIONAL LABOR RELATIONS

BOARD

29 CFR Part 103

RIN 3142–AA15

Jurisdiction—Nonemployee Status of

University and College Students

Working in Connection With Their

Studies; Correction and Extension of

Comment Period

AGENCY

: National Labor Relations

Board.

ACTION

: Notice of proposed rulemaking;

Correction; extension of comment

period.

SUMMARY

: This document corrects the

preamble to a proposed rule published

in the Federal Register of September 23,

2019, regarding Nonemployee Status of

University and College Students

Working in Connection with Their

Studies. This correction revises the

Regulatory Flexibility Act section in the

preamble of the proposed rule to

substitute an Initial Regulatory

Flexibility Analysis. The date to submit

responses to the Notice of Proposed

Rulemaking is also extended for 60

days.

DATES

: The comment period for the

notice of proposed rulemaking

published at 84 FR 49691 is extended.

Comments must be received by the

Board on or before Monday, December

16, 2019. Comments replying to

comments submitted during the initial

comment period must be received by

the Board on or before Monday,

December 30, 2019.

FOR FURTHER INFORMATION CONTACT

Roxanne Rothschild, Executive

Secretary, National Labor Relations

Board, 1015 Half Street SE, Washington,

DC 20570–0001, (202) 273–1940 (this is

not a toll-free number), 1–866–315–6572

(TTY/TDD).

SUPPLEMENTARY INFORMATION

Correction

In proposed rule FR 2019–20510,

beginning on page 49691 in the issue of

September 23, 2019, make the following

correction, in the

SUPPLEMENTARY

INFORMATION

section. On page 49699, in

the 1st column, revise the text between

‘‘Regulatory Flexibility Act’’ and

‘‘Paperwork Reduction Act’’ to read as

follows:

A. Initial Regulatory Flexibility Analysis

The Regulatory Flexibility Act of 1980

(‘‘RFA’’), 5 U.S.C. 601, et seq., ensures

that agencies ‘‘review draft rules to

assess and take appropriate account of

the potential impact on small

businesses, small governmental

jurisdictions, and small organizations,

as provided by the [RFA].’’

It requires

agencies promulgating proposed rules to

prepare an Initial Regulatory Flexibility

Analysis (‘‘IRFA’’) and to develop

alternatives wherever possible, when

drafting regulations that will have a

significant impact on a substantial

number of small entities.

However, an

agency is not required to prepare an

IRFA for a proposed rule if the agency

head certifies that, if promulgated, the

rule will not have a significant

economic impact on a substantial

number of small entities.

The RFA does

not define either ‘‘significant economic

impact’’ or ‘‘substantial number of small

entities.’’

Additionally, ‘‘[i]n the

absence of statutory specificity, what is

‘significant’ will vary depending on the

economics of the industry or sector to be

regulated. The agency is in the best

position to gauge the small entity

impacts of its regulations.’’

As discussed below, the Board

believes its proposed rule will likely not

have a significant economic impact on

a substantial number of small entities

but is not certain. The Board assumes

for purposes of this analysis that a

substantial number of small employers

and small entity labor unions will be

impacted by this rule because at a

minimum, they will need to review and

understand the effect of the proposed

standard as it relates to undergraduate

and graduate students who perform

services for compensation in connection

with their studies. Additionally, there

may be compliance costs that are

unknown to the Board.

For these reasons, the Board has

elected to prepare an IRFA to provide

the public the fullest opportunity to

comment on the proposed rule.

IRFA describes why an action is being

proposed; the objectives and legal basis

for the proposed rule; the number of

small entities to which the proposed

rule would apply; any projected

reporting, recordkeeping, or other

compliance requirements of the

proposed rule; any overlapping,

duplicative, or conflicting Federal rules;

and any significant alternatives to the

proposed rule that would accomplish

the stated objectives, consistent with

applicable statutes, and that would

minimize any significant adverse

economic impacts of the proposed rule

on small entities.

An IRFA also

presents an opportunity for the public to

provide comments that will shed light

on impacted entities and potential

compliance costs that are unknown to

the Board or on any other part of the

IRFA.

Detailed descriptions of this proposed

rule, its purpose, objectives, and the

legal basis are contained in the

SUMMARY

and

SUPPLEMENTAL INFORMATION

sections

of the Notice of Proposed Rulemaking.

See 84 FR 49691. In brief, the proposed

rule states that students who perform

any services, including teaching or

research assistance, at a private college

or university related to their studies are

not statutory employees subject to

jurisdiction of the Board. The Board has

concluded that this rule—providing that

undergraduate and graduate students

performing services in connection with

their studies are not statutory

employees—is more consistent with the

purposes and policies of the National

Labor Relations Act (Act or NLRA),

which contemplates jurisdiction over

economic relationships not those that

are primarily educational in nature.

B. Description and Estimate of Number

of Small Entities to Which the Rule

Applies

To evaluate the impact of the

proposed rule, the Board first identified

the universe of small entities that could

be impacted by the determination that

students who perform services at a

private college or university in

connection with their studies are not

statutory employees. The United States

Census Bureau does not specifically

define ‘‘small business’’ but does break

down its data into firms with fewer than

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Why Sign-up to vLex?

Over 100 Countries

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

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Over 2 million registered users

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Over 100 Countries

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

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Over 2 million registered users