80_FR_56551 80 FR 56370 - Disclosure of Information for Certain Intellectual Property Rights Enforced at the Border

80 FR 56370 - Disclosure of Information for Certain Intellectual Property Rights Enforced at the Border

DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY

Federal Register Volume 80, Issue 181 (September 18, 2015)

Page Range56370-56381
FR Document2015-23543

This document adopts as a final rule, with changes, interim amendments to the U.S. Customs and Border Protection (CBP) regulations pertaining to importations of merchandise bearing suspected counterfeit trademarks or trade names that are recorded with CBP. Specifically, the amendments allow CBP, for the purpose of obtaining assistance in determining whether merchandise bears a counterfeit mark, to disclose to a trademark or other mark owner information appearing on merchandise or its retail packaging that may otherwise be protected by the Trade Secrets Act. This final rule also amends the CBP regulations to further enhance information-sharing procedures by requiring CBP to release to the importer an unredacted sample or image of the suspect merchandise or its retail packaging any time after presentation of the suspect goods for examination. This change is to reflect that an importer may not have complete information about the marks appearing on imported goods, and release of such unredacted information will assist the importer in providing CBP with a meaningful response to a detention notice. The amendments in this final rule also require CBP to release limited importation information to the mark owner no later than the time of issuance of the detention notice to the importer, rather than within 30 business days from the date of detention. Finally, these amendments require CBP to notify the mark owner that use of any information otherwise protected by the Trade Secrets Act that is disclosed by CBP to the mark owner is for the limited purpose of assisting CBP.

Federal Register, Volume 80 Issue 181 (Friday, September 18, 2015)
[Federal Register Volume 80, Number 181 (Friday, September 18, 2015)]
[Rules and Regulations]
[Pages 56370-56381]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-23543]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Parts 133 and 151

[Docket No. USCBP-2012-0011; CBP Dec. 15-12]
RIN 1515-AD87


Disclosure of Information for Certain Intellectual Property 
Rights Enforced at the Border

AGENCIES: U.S. Customs and Border Protection, Department of Homeland 
Security; Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document adopts as a final rule, with changes, interim 
amendments to the U.S. Customs and Border Protection (CBP) regulations 
pertaining to importations of merchandise bearing suspected counterfeit 
trademarks or trade names that are recorded with CBP. Specifically, the 
amendments allow CBP, for the purpose of obtaining assistance in 
determining whether merchandise bears a counterfeit mark, to disclose 
to a trademark or other mark owner information appearing on merchandise 
or its retail packaging that may otherwise be protected by the Trade 
Secrets Act. This final rule also amends the CBP regulations to further 
enhance information-sharing procedures by requiring CBP to release to 
the importer an unredacted sample or image of the suspect merchandise 
or its retail packaging any time after presentation of the suspect 
goods for examination. This change is to reflect that an importer may 
not have complete information about the marks appearing on imported 
goods, and release of such unredacted information will assist the 
importer in providing CBP with a meaningful response to a detention 
notice. The amendments in this final rule also require CBP to release 
limited importation information to the mark owner no later than the 
time of issuance of the detention notice to the importer, rather than 
within 30 business days from the date of detention. Finally, these 
amendments require CBP to notify the mark owner that use of any

[[Page 56371]]

information otherwise protected by the Trade Secrets Act that is 
disclosed by CBP to the mark owner is for the limited purpose of 
assisting CBP.

DATES: Effective on October 19, 2015.

FOR FURTHER INFORMATION CONTACT: Goli Gharib, Intellectual Property 
Rights Branch, Regulations and Rulings, Office of International Trade, 
(202) 325-0216.

SUPPLEMENTARY INFORMATION: 

Background

    On April 24, 2012, CBP published CBP Dec. 12-10 in the Federal 
Register (77 FR 24375), setting forth interim amendments to the CBP 
regulations that pertain to importations of merchandise bearing 
suspected counterfeit trademarks or trade names that are recorded with 
CBP. The interim regulation, which went into effect upon publication, 
made several changes to subpart C of part 133 of title 19 of the Code 
of Federal Regulations (19 CFR part 133) regarding the detention of 
suspect merchandise and the disclosure of information to mark owners 
during detention of goods bearing potentially counterfeit marks and 
after seizure of goods bearing counterfeit marks. These changes 
included a clarifying revision of the definition of ``counterfeit 
trademark'' and the addition of a 30-day detention period relative to 
goods suspected of bearing counterfeit marks.
    CBP Dec. 12-10 sets forth a detailed discussion of the statutory 
scheme pertaining to enforcement of the intellectual property laws and 
CBP's derived authority to promulgate the interim amendments whereby 
CBP officers may disclose certain information that might comprise 
otherwise confidential commercial or financial information in order to 
assist CBP in identifying merchandise bearing counterfeit marks at the 
time of detention. See National Defense Authorization Act for Fiscal 
Year 2012 (NDAA) (Public Law 112-81, 10 U.S.C. 2302); Trade Secrets Act 
(18 U.S.C. 1905); Administrative Procedures Act (5 U.S.C. 551 et seq.); 
Lanham Act (15 U.S.C. 1124, 1125, 1127); Tariff Act of 1930, as amended 
(19 U.S.C. 1526(e) and 1595a(c)). Interested parties may refer to CBP 
Dec. 12-10 for that background information.
    Although the interim regulatory amendments were promulgated without 
prior public notice and comment procedures and took effect on April 24, 
2012, CBP Dec. 12-10 provided for the submission of public comments 
which would be considered before adoption of the interim regulations as 
a final rule.

Discussion of Comments

    Twenty commenters responded to the interim rule's solicitation of 
public comment. Each submission consisted of multiple comments and 
several were submitted by or on behalf of associations. A majority of 
commenters expressed support for the interim rule's primary purpose of 
providing a procedure for the disclosure of information by CBP to mark 
owners for the purpose of determining whether imported goods bear 
counterfeit marks. Many of these commenters expressed the view that the 
interim rule does not go far enough to support CBP's enforcement 
efforts and made recommendations for improving the regulation.
    A minority of commenters opposed the rule. Some of these commenters 
expressed concern that the interim regulation may have unintended 
consequences on the flow of legitimate trade, such as by enabling mark 
owners to prevent competing legitimate goods from entering commerce, 
and may create administrative burdens for the agency. The comments, and 
CBP's analyses thereof, are set forth below.

A. Terminology

    For purposes of the comment discussion, the following terms are 
defined as set forth below:
     ``Section (b)(1) information'' refers to the specified 
information CBP is authorized to release under Sec.  133.21(b)(1) of 
the interim regulation: Information appearing on suspect goods or their 
retail packaging (including labels) and unredacted samples or images 
(photographs, etc.) of the suspect goods or their retail packaging. 
``Section (b)(1) information,'' in whatever form disclosed, may include 
manufacturer, shipper, exporter, or importer name and address when it 
appears on merchandise or its retail packaging, or serial numbers, 
dates of manufacture, lot codes, batch numbers, universal product 
codes, or other identifying marks, appearing on merchandise or its 
retail packaging in alphanumeric or other formats.
     The term ``unredacted sample'' refers to a sample 
(including its packaging) in its original condition as presented to CBP 
for examination.
     The term ``limited importation information'' refers to the 
basic information CBP releases under Sec.  133.21(b)(2) of the interim 
regulation (redesignated as Sec.  133.21(b)(4) in this final rule). 
Limited importation information consists of: Date of importation, port 
of entry, and description, quantity, and country of origin of the 
goods.
     The term ``redacted sample'' is used to describe samples 
of goods displaying information all of which or some of which has been 
removed, obscured, or obliterated. Such information may include the 
names and addresses of manufacturers, shippers, exporters, or importers 
that appear on merchandise or its retail packaging, or serial numbers, 
dates of manufacture, lot codes, batch numbers, universal product 
codes, or other identifying marks that appear on merchandise or its 
retail packaging in alphanumeric or other formats. Redacted samples may 
be photographed or otherwise reproduced for release to mark owners.
     ``Comprehensive importation information,'' released by CBP 
under Sec.  133.21(d) of the interim regulation (redesignated as Sec.  
133.21(e) in this final rule), includes limited importation information 
plus the following additional information: Name and address of the 
manufacturer, exporter, and importer.
     The terms ``goods'' and ``merchandise'' are used 
interchangeably.

B. Comments Concerning Legal Issues

1. Comments Concerning Applicability of the Trade Secrets Act (18 
U.S.C. 1905)
    Comment: One commenter contended that the Trade Secrets Act only 
prohibits unauthorized disclosures of personally identifiable 
information by a government official or employee who received the 
information in the course of his employment.
    CBP Response: CBP disagrees. The Trade Secrets Act applies to any 
information that ``. . . 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).
    Comment: Several commenters questioned CBP's interpretation of the 
Trade Secrets Act as set forth in the interim rule, which is that 
information appearing on imported articles and their retail packaging 
is information potentially covered by the Trade Secrets Act's 
protection against disclosure.
    CBP Response: CBP's view is that while the Trade Secrets Act 
protects from disclosure information that identifies persons, or which 
may lead to the identification of persons, the Act is not limited to 
such information. The Act also covers a comprehensive array of 
business, commercial, and financial information.

[[Page 56372]]

    Comment: Several commenters were of the view that CBP had changed 
its practice in 2008 to reflect that information appearing on imported 
articles and their retail packaging is information potentially covered 
by the Trade Secrets Act's protection against disclosure, and that 
subsequently CBP required that samples provided to mark owners be 
redacted.
    CBP Response: The agency has consistently interpreted the Trade 
Secrets Act as prohibiting its employees from the unauthorized 
disclosure of protected information received in the course of their 
employment. From calendar year 2000 to publication of the interim rule 
on April 24, 2012, CBP's written policy was to provide, prior to 
seizure of goods bearing counterfeit marks, only limited importation 
information and/or redacted samples to mark owners (Customs Directive 
2310-008A, April 7, 2000).
    Comment: Several commenters stated that tracking information and 
other product coding are generally visible to the public and that any 
proprietary interest in this information belongs to the shipper and/or 
mark owner, not to the importer. These commenters contended that the 
Trade Secrets Act does not prohibit disclosure of this information to 
the mark owner.
    CBP Response: As explained in the interim rule, markings, 
alphanumeric symbols, and other coding appearing on products or their 
retail packaging may reveal information regarding an importer's supply 
chain. This information is of the kind normally subject to Trade 
Secrets Act protection regardless of who may have applied the markings/
symbols/coding to the products or packaging. The Trade Secrets Act 
permits those covered by the Act to disclose protected information when 
the disclosure is otherwise ``authorized by law,'' which includes 
properly promulgated substantive agency regulations authorizing 
disclosure based on a valid statutory interpretation. See Chrysler v. 
Brown, 441 U.S. 281, 294-316 (1979). Therefore, the ``authorized by 
law'' exception of the Trade Secrets Act allows CBP to disclose this 
protected information to the mark owner for the limited purpose of 
obtaining the mark owner's assistance in determining whether goods bear 
a counterfeit mark.
    Comment: Some commenters stated that the interim regulation fails 
to safeguard the commercial and supply chain information that it 
purports to protect, as that information will inevitably become 
available to the public when the imported goods reach the market.
    CBP Response: The Trade Secrets Act prohibits government officials 
from disclosing protected information received during the course of 
their employment or official duties, unless disclosure is exempted from 
the prohibition, regardless of whether the owner of that information 
may eventually disclose it to the public. Importers of merchandise 
detained under the provisions of the interim regulation may ultimately 
choose not to put the goods on the market or may otherwise dispose of 
the goods in a manner in which the aforementioned information appearing 
on the goods and/or packaging would never be disclosed to the public. 
Importers who choose to disclose such information are not subject to 
the Trade Secrets Act as they are not government employees who have 
received information pursuant to their employment. CBP's release of 
this information under the interim regulation's procedure is allowed 
under the ``authorized by law'' exception to the Trade Secrets Act, 
discussed above.
2. Comments Concerning the NDAA
    Comment: One commenter stated that the NDAA is the sole authority 
for promulgating the interim regulation and requested that CBP clarify 
the legal basis for the regulation.
    CBP Response: CBP disagrees with the commenter's premise. As 
explained in the interim rule, the NDAA is not the sole source of 
authority for the interim regulation's information disclosure 
procedure. In fact, several statutes, including 15 U.S.C. 1124, 1125, 
and 1127 and 19 U.S.C. 1526(e) authorize CBP to disclose to mark 
owners, for purposes of obtaining the mark owners' assistance in making 
infringement determinations, information that CBP may disclose under 
the interim regulation.
    Comment: Several commenters contended that the NDAA only applies to 
products procured by the military and/or matters involving national 
defense concerns.
    CBP Response: Several statutes authorize CBP to disclose to the 
mark owner the information set forth in the interim regulation, none of 
which, including the NDAA, is limited to military procurements and/or 
importations raising national defense concerns. The NDAA language is 
unambiguous and applies to any product CBP suspects of ``being imported 
in violation of section 42 of the Lanham Act.'' Therefore, CBP declines 
to limit the interim regulation's applicability as suggested by the 
commenters.
3. Comments Raising Other Legal Concerns
    Comment: One commenter recommended that CBP amend the interim 
regulation to clarify that goods that are properly trademarked and that 
only use an additional protected trademark in a description of the 
product are not covered within the scope of this regulation.
    CBP Response: In many cases, using a trademark in the way described 
by the commenter is permissible as a ``fair use'' of the trademark. 
``Fair use'' is a well-established doctrine in trademark law that is 
recognized and honored by the courts. See section 33(b)(4) of the 
Lanham Act, 15 U.S.C. 1115(b)(4), which provides for a ``fair use'' 
defense when ``the use of the name, term, or device charged to be an 
infringement is a use, otherwise than as a mark, . . . or [use of] a 
term or device which is descriptive of and used fairly and in good 
faith only to describe the goods or services of such party.'' CBP 
honors the ``fair use'' doctrine, but does not believe it is necessary 
to include it in this CBP regulation.
    Comment: Several commenters recommended that CBP amend the interim 
regulation to modify its definition of ``counterfeit'' based on their 
concerns that CBP officers could detain goods that are genuine, albeit 
repaired or refurbished goods, or goods bearing genuine marks that are 
unrestricted parallel imports.
    CBP Response: The interim regulation employs the definition of 
``counterfeit'' provided by the Lanham Act at 15 U.S.C. 1127.
    Comment: Several commenters stated that the interim regulation 
should apply to other forms of intellectual property, such as suspected 
piratical or copyright infringing goods, and merchandise suspected of 
violating the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 1201.
    CBP Response: As the above comment concerns amendments to 
regulations concerning forms of intellectual property other than 
counterfeit marks, it falls outside the scope of this final rulemaking. 
CBP recognizes the concern that there be similar disclosure provisions 
relating to suspected piratical or copyright infringing goods and 
merchandise suspected of violating the Digital Millennium Copyright Act 
(DMCA), 17 U.S.C. 1201, and plans to address the issue through a 
separate proposed rulemaking.

C. Comments Concerning Action by Mark Owners

    Comment: Several commenters noted that the interim regulation 
provides an

[[Page 56373]]

opportunity for mark owners to potentially abuse the section (b)(1) 
information provided to them by CBP, and to disrupt or eliminate lawful 
parallel market competition. Several commenters recommended that CBP 
restrict mark owners' use of section (b)(1) information by placing 
conditions on the manner by which they may receive and use the 
information.
    CBP Response: The interim regulation allows CBP to release section 
(b)(1) information to a mark owner after an importer has been notified 
and has had the opportunity to establish that the suspect goods bear 
genuine marks. This regulation is not intended to impede the legal 
importation of parallel (gray market) goods. However, to address the 
concern of these commenters, and the concern of those suggesting that 
conditions and limitations be placed on mark owners receiving section 
(b)(1) information, CBP is amending the interim regulation at 19 CFR 
133.21(c) to include in the disclosure to the mark owner a statement 
that some or all of the information being disclosed may be information 
protected from disclosure by the Trade Secrets Act. The regulation 
provides that CBP is only disclosing the information to the owner of 
the mark for the purpose of assisting CBP in determining whether the 
merchandise bears a counterfeit mark. CBP will take into account, in 
deciding whether to make future disclosures to a mark owner, instances 
in which the mark owner has used the disclosed information for another 
purpose (i.e., other than for assisting CPB in making the infringement 
determination).
    Comment: Several commenters recommended that CBP amend the interim 
regulation to require mark owners receiving section (b)(1) information 
from CBP to provide certifications, under penalty of perjury, when 
reporting to CBP that goods are counterfeit and contain spurious 
versions of the specific marks recorded with CBP. One commenter 
contended that a certification would provide an assurance of veracity 
in a mark owner's response to CBP that the goods bear counterfeit 
marks.
    CBP Response: A certification step would add administrative 
complexity and impede CBP's ability to determine a suspect good's 
admissibility as quickly as possible. The responsibility for 
determining whether the goods bear counterfeit marks rests with CBP 
which routinely determines the admissibility of goods under numerous 
provisions of customs and other laws. In doing so, CBP considers and 
determines the veracity of information and the authenticity of 
documents presented by importers, mark owners, and others who 
participate in various procedures administered under the customs laws 
and regulations. CBP will not seize merchandise based solely on 
information provided by the mark owner when CBP deems such information 
to be insufficient or inconsistent with the facts of the case.
    Comment: One commenter expressed concern that mark owners will 
delay and/or fail to be responsive to CBP's inquiries regarding 
authenticity of marks appearing on suspect goods, thereby prejudicing 
the right of importers to an orderly and reasonably expeditious 
process.
    CBP Response: CBP believes the commenter's concern will be the 
exception, not the rule. The interim regulation's detention period 
extends for 30 days from the date goods are presented for examination, 
which CBP deems a reasonable time frame considering the potential 
urgency of the matter. Most cases will be resolved within the 30-day 
period. If detained articles are not released within the detention 
period, the articles are deemed excluded in accordance with 19 U.S.C. 
1499(c)(5) for purposes of 19 U.S.C. 1514(a)(4), which pertains to an 
importer's right to protest CBP's decisions. Therefore, delay by the 
mark owner, whatever the reason, will not deprive the importer of 
recourse to gain release of its merchandise where the facts warrant 
such release.

D. Comments Pertaining to the Interim Regulation's Procedure

1. Comments Concerning the Procedure Generally
    Comment: Some commenters noted that there could be a potential 
disruption to the flow of legitimate trade by the interim regulation's 
required procedures.
    CBP Response: CBP acknowledges that some goods initially suspected 
of bearing counterfeit marks will ultimately be determined to be 
genuine or otherwise non-violative and that the release of these 
genuine goods will be delayed to some extent. However, the interim 
regulation's procedure is structured to resolve these issues in a 
reasonably expedited manner, while giving appropriate notices to 
impacted parties. Suspect goods found to be genuine will be released 
expeditiously.
    Comment: One commenter, an importer, stated that the interim 
regulation's procedure prevents CBP from seeking assistance in 
determining whether the suspect goods bear counterfeit marks until CBP 
issues a notice of detention to the importer. The commenter contended 
that this procedure impedes CBP's enforcement effort.
    CBP Response: CBP disagrees with the commenter's characterization 
of the process. In order to seek assistance from a mark owner CBP may, 
at its discretion at any time after merchandise is presented for 
examination, disclose limited importation information and redacted 
samples (or photographs/images) to a mark owner.
    Comment: The same commenter stated that the interim regulation's 
procedure prevents CBP from seeking assistance from the mark owner 
within the seven business day period after issuance of the detention 
notice.
    CBP Response: Again, CBP disagrees with the commenter's 
characterization of the process. As stated above, CBP may, at its 
discretion at any time after merchandise is presented for examination, 
disclose limited importation information and redacted samples (or 
photographs/images) to a mark owner.
    Comment: One commenter recommended that CBP amend the regulation to 
require that a mark owner post a bond in order to receive a sample only 
when the value of the sample released to the mark owner is $500 or 
more.
    CBP Response: CBP believes that the bonding requirements set forth 
in this final rule are appropriate to indemnify the importer against 
any loss or damage resulting from the furnishing of a sample to the 
mark owner for purposes of assisting the government in making an 
infringement determination.
    Comment: Several commenters recommended that CBP provide in the 
regulation an opportunity for the importer to have a sample of the 
suspect goods tested by a qualified laboratory rather than providing a 
sample to the mark owner.
    CBP Response: CBP recognizes that laboratory analysis may, in 
certain instances, be a valuable tool in determining whether goods bear 
genuine marks. CBP will consider any information, including laboratory 
reports, provided by an importer to support the admissibility of goods 
detained under the interim regulation. While information from a 
laboratory may lead CBP to decide it is not necessary to provide a 
sample to a mark owner, that is not necessarily the case.
    Comment: One commenter, an association representing mark owners, 
stated that its members strongly oppose giving importers the principal 
role in authenticating detained products and requests that CBP provide 
right holders

[[Page 56374]]

with unredacted samples and a direct voice in determining authenticity.
    CBP Response: This final rule does not give importers the principal 
role in authenticating suspected counterfeit marks. Pursuant to 19 
U.S.C. 1499, CBP has the ultimate responsibility for determining 
whether a suspected mark is counterfeit. Moreover, this final rule 
provides the right holders with unredacted samples and photographs and 
an opportunity to provide CBP with input regarding whether the goods 
bear a counterfeit mark whenever CBP has an unresolved suspicion.
    Comment: Some commenters stated that allowing the importer an 
opportunity to establish that its imported goods are genuine invites 
fraud and questioned whether CBP would be able to determine the 
authenticity of documents and information provided by an importer.
    CBP Response: There is always a risk that CBP receives incorrect 
information, whether from an importer or another interested party. CBP, 
however, has extensive experience in determining the admissibility of 
goods under the numerous provisions of the customs laws and other laws 
it enforces and is well aware of the potential for fraud. CBP has 
developed expertise in determining the admissibility of goods presented 
for entry and routinely considers the veracity and authenticity of 
information and documents that importers (and others) present to CBP.
    Comment: One commenter recommended that CBP include a mechanism 
under the interim regulation's procedure by which mark owners may 
object to a determination by CBP that a suspected counterfeit mark is 
not counterfeit, after the mark owner receives either limited 
importation information or section (b)(1) information from CBP.
    CBP Response: As stated in CBP Dec. 12-10 and noted above, the 
objective of this rulemaking is to facilitate CBP's solicitation of 
information from both mark owners and importers to better enable CBP to 
determine a good's admissibility while safeguarding, to the greatest 
extent possible, information that is protected by the Trade Secrets 
Act. The mark owner receives more than limited importation information 
in that the right holder is provided with an unredacted sample or 
digital images containing information appearing on the suspect article. 
The disclosure of this information allows the right holder to provide 
CBP with the information necessary for making a determination relative 
to the suspect mark and for determining whether the article bears a 
counterfeit mark.
    Comment: One commenter noted with disapproval that the interim 
regulation provides for a 30-day window from the date of importation 
for CBP to make a determination of ``reasonable suspicion'' and 
requires CBP to issue a notice of detention to the importer within five 
business days of that determination.
    CBP Response: CBP disagrees with the commenter's reading of the 
regulation. Under 19 U.S.C. 1499, CBP must decide whether to release or 
detain merchandise within five business days following the date on 
which merchandise is presented for examination. Therefore, a five 
business day window exists within which CBP must make a reasonable 
suspicion determination, not a 30-day window. CBP is also required to 
issue a notice of detention to the importer no later than five business 
days after a decision to detain the merchandise is made. Therefore, the 
importer will learn of the detention within ten business days of the 
merchandise being presented for examination.
    Comment: Several commenters stated that CBP should be required to 
issue uniform notices of detention that specify the reason(s) for 
detention.
    CBP Response: CBP agrees as this requirement is mandated by 19 
U.S.C. 1499(c)(2)(B).
    Comment: One commenter, citing language from the interim rule's 
preamble, recommended that CBP amend the interim regulation to 
explicitly state that goods will be detained only when CBP ``reasonably 
suspects'' that they bear counterfeit marks.
    CBP Response: CBP believes that it is unnecessary to codify in the 
regulations factors, elements, and/or circumstances it must consider, 
on a case-by-case basis, in determining whether goods are subject to 
detention for a determination of violation of the intellectual property 
laws.
    Comment: A commenter recommended that CBP define the ``good cause'' 
an importer must show under the interim regulation to justify an 
importer's request for a 30-day extension of the detention period.
    CBP Response: CBP no longer believes that such a 30-day extension 
is warranted and has eliminated it in this final rule. In the past, 
extensions were granted to provide time to determine admissibility. CBP 
is confident that with the assistance and input of the right holder, 
admissibility determinations can be made within the 30-day period.
    Comment: One commenter stated that the interim regulation simply 
codifies in the regulations what, prior to the promulgation of the 
interim rule, had been the regulatory status quo inasmuch as mark 
owners may obtain unredacted samples only after CBP determines that the 
subject goods bear counterfeit marks and seizes them or formulates the 
intention to seize them.
    CBP Response: CBP disagrees with the commenter's reading of the 
interim regulation. CBP may, when necessary to determine whether 
suspect goods bear counterfeit marks, disclose unredacted samples to 
the owner of the mark in accordance with the interim regulation's 
notice (to the importer) provisions. This disclosure takes place after 
detention but before either seizure or the formulation of an intent to 
seize.
    Comment: One commenter objected to the interim regulation as not 
providing protection to importers against disclosure to mark owners of 
information protected by the Trade Secrets Act with respect to marks 
that are not recorded with CBP.
    CBP Response: The interim regulation does, in fact, require that a 
mark be registered with the U.S. Patent and Trademark Office and 
recorded with CBP as a prerequisite to the agency detaining goods it 
suspects bear a counterfeit version of the mark and disclosing 
information (or samples or photographs/images) to the mark owner under 
Sec.  133.21(b) of the interim regulation. CBP believes that this long-
standing requirement is warranted and will continue to impose it. 
Without it, CBP would lack information needed to enforce the 
prohibition against counterfeit marks, and the process would become 
more complex and significantly less workable.
    Comment: Several commenters stated that the interim regulation does 
not provide an objective standard for establishing the genuine nature 
of marks appearing on imported goods. These commenters recommended that 
CBP amend the interim regulation to include examples of the kind of 
information it will accept as tending to prove that marks are genuine.
    CBP Response: CBP believes that it is unnecessary to amend the 
regulation, as CBP will consider any document or information that is 
relevant to the question of the authenticity of the mark. Inevitably, 
some documents or information submitted to CBP by an importer or a mark 
owner will be less persuasive or probative. These decisions are case-
specific and depend on the circumstances involved. In this context, CBP 
finds little benefit to limiting the kinds of information it will 
consider.

[[Page 56375]]

2. Comments Concerning the Release of Information
    Comment: One commenter recommended that prior to CBP's disclosure 
of section (b)(1) information to the mark owner, the agency should 
provide the information to the importer for its consideration of the 
accuracy and veracity of that information. Several commenters 
recommended that CBP allow importers to obtain samples of suspect goods 
to assist them in responding to CBP's request for information regarding 
the goods. Some of these latter commenters also recommended that 
importers be permitted to receive samples of seized goods to enable 
them to respond to seizure and/or penalty notices.
    CBP Response: Inasmuch as an importer may not have complete 
information about the marks appearing on imported goods and/or their 
retail packaging, CBP finds merit in releasing this information to 
importers and is amending the interim regulation (see new Sec.  
133.21(d)) to provide release of an unredacted sample/packaging/image 
to the importer any time after presentation of the goods for 
examination. CBP believes that releasing this information to importers 
will assist them in providing CBP with a meaningful response before or 
within the seven business day response period. Under this amended 
provision, if an importer does not identify a need for a sample until 
after CBP seizes goods as bearing counterfeit marks the importer may 
request a sample at that time.
    Comment: Several commenters recommended that the interim 
regulation's procedure for issuing a notice of detention to the 
importer be expanded to provide, simultaneously rather than within 30 
business days of detention, the notice of the detention and limited 
importation information to the mark owner. This would eliminate 
unnecessary delay.
    CBP Response: CBP finds merit in this recommendation and is 
amending Sec.  133.21(b) of the interim regulation accordingly. The 
amended provision will no longer provide that CBP has 30 business days 
from the date of detention to release limited importation information 
to the mark owner; if available, such information will be released upon 
issuance of the detention notice to the importer (or as soon as 
possible thereafter if not immediately available). This simultaneous 
notice and release of limited importation information provision will 
apply in those instances where CBP has not already released limited 
importation information to the mark owner in accordance with its 
discretionary release authority under the same section of the interim 
regulation.
    Comment: Several commenters recommended that CBP amend the interim 
regulation to allow disclosure to another person in place of the mark 
owner, where there is an arrangement between the other person and the 
mark owner, such as an assignment, a license, or other agreement. Such 
other persons may be in a better position to assist CBP in identifying 
goods bearing counterfeit marks.
    CBP Response: CBP discloses such information to the person 
designated by the mark owner during the recordation process as the 
contact for enforcement of the mark (see Sec. Sec.  133.1 through 133.7 
of this part). However, due to the administrative difficulty in 
determining which additional persons may be entitled to receive such 
information, CBP is not amending the regulations in this regard.
    Comment: Several commenters recommended that CBP limit the 
circumstances in which unredacted samples are released to mark owners 
by first releasing a redacted sample to the mark owner. An unredacted 
sample can then be released when the redacted sample proves 
insufficient for the mark owner to assist CBP in determining whether 
the goods bear a counterfeit mark.
    CBP Response: CBP believes that the interim regulation adequately 
safeguards importers' interests and that it would be counter-productive 
and unduly burdensome administratively to impose additional procedural 
steps before releasing an unredacted sample to the mark owner. The 
result would be more instances where resolution of the matter would 
require all or nearly all of the 30-day detention period, which is 
contrary to CBP's goal to quickly resolve issues of admissibility so as 
to either enable lawful trade or to prevent violative goods from 
entering the commerce of the United States.
    Comment: Several commenters recommended that CBP make the interim 
regulation's disclosure provision mandatory rather than permissive, 
requiring CBP, in every case, to disclose section (b)(1) information, 
including unredacted samples.
    CBP Response: The interim regulation permits CBP to disclose to 
mark owners, prior to seizure, section (b)(1) information (including an 
unredacted sample) when CBP finds that obtaining a mark owner's 
assistance regarding the authenticity of a mark is warranted, subject 
to the notice and seven business day response period set forth in Sec.  
133.21(b)(2)(i). See Sec.  133.21(c). CBP will weigh the facts and 
circumstances before releasing section (b)(1) information (prior to 
seizure). CBP therefore does not agree with the commenters' 
recommendation to require the pre-seizure release of section (b)(1) 
information to the mark owner in every case. CBP believes that the 
interim regulation's procedure protects importers' interests in the 
confidentiality of their commercial and supply chain information while, 
at the same time, facilitating CBP's trademark enforcement at the 
border.
    Comment: One commenter recommended that CBP clarify that release of 
information is only authorized after detention, rather than at any time 
after importation.
    CBP Response: Although this comment is accurate regarding release 
of section (b)(1) information to the mark owner under the interim 
regulation, this final rule amends Sec.  133.21(b)(4), as explained 
above, to reflect that CBP may release limited importation information 
to the mark owner prior to issuance of a notice of detention to the 
importer and will release such information to the mark owner upon 
issuance of the notice of detention or as soon as possible after its 
issuance. This latter change removes the 30-business day window 
specified in the interim regulation and mandates that CBP will release 
this information, when available, contemporaneously with issuance of 
the detention notice to the importer.
    Comment: Some commenters recommended that the interim regulation be 
amended to permit CBP to disclose unredacted samples to the owner of 
the mark at any time after goods are presented for entry, without the 
seven business day response period. Some commenters recommended that 
this response period be eliminated, observing that applicable law does 
not require a role for the importer in the authentication process.
    CBP Response: CBP believes that the regulation strikes the 
appropriate balance between protecting importers' commercial 
information and allowing mark owners to assist CBP in enforcing 
prohibitions against counterfeit goods. Section 1499(a)(5) within 19 
U.S.C. specifies the manner in which an importer may provide 
information to CBP when information is required for the release of 
goods. Accordingly, importers have a statutorily prescribed role in 
establishing the admissibility of their goods. At any time after goods 
are presented for examination, CBP may solicit and receive information 
from the importer that may enable CBP to expeditiously release the 
goods. In cases

[[Page 56376]]

where information is not provided within five days or the information 
received is insufficient to enable CBP to release the goods, pursuant 
to 19 U.S.C. 1499, CBP may detain the goods to enable CBP to determine 
their admissibility. Should CBP require assistance from a mark owner to 
determine admissibility of the goods, it may seek assistance at various 
stages of the detention and may disclose section (b)(1) information, if 
necessary, after the seven business day response period. Under 19 
U.S.C. 1499, if CBP does not make a final determination regarding the 
admissibility of the goods within 30 days of presentation of the 
merchandise for examination, its failure to make such a determination 
is treated as a decision to exclude the merchandise for purposes of 19 
U.S.C. 1514(a)(4). CBP believes that the above process allows the mark 
owner adequate time to provide information to CBP when CBP requests 
such information while protecting importers' commercial information.
    Comment: One commenter suggested that CBP amend the interim 
regulation to require the importer to provide to the mark owner any 
information it submits to CBP within the seven business day response 
period. Another commenter suggested that CBP provide to the mark owner 
a non-proprietary version of the information the importer provided to 
CBP.
    CBP Response: It is CBP's role to determine whether, in light of 
the relevant laws and regulations, goods that are presented for 
examination are admissible. The interim regulation simply facilitates 
CBP's solicitation of information from both mark owners and importers 
to better enable CBP to determine a good's admissibility while 
safeguarding as much as possible information that is protected by the 
Trade Secrets Act.
3. Other Comments Concerning the Seven Business Day Response Period
    Comment: Several commenters recommended that CBP exempt certain 
industries from the interim regulation's seven business day response 
period, contending that some industries have special needs requiring 
information sharing with the mark owner, without delay, in every case.
    CBP Response: CBP believes that the interim regulation's procedure 
will operate effectively across all industries and sectors. Should CBP 
recognize a need to address a specific industry's circumstances in the 
future, CBP will consider amending the regulation at that time.
    Comment: One commenter expressed concern that the interim 
regulation's seven business day response period will impair a mark 
owner's ability to assist CBP in its efforts to curtail importation of 
restricted parallel imports or to assist CBP in identifying counterfeit 
goods that are commingled with unrestricted gray market goods.
    CBP Response: The interim regulation did not change the way CBP 
enforces restrictions on gray market goods. The seven business day 
response period neither impairs the mark owner's ability to make 
information available to CBP nor increases the risk of counterfeit 
goods being admitted. Unless CBP determined the goods are admissible, 
they are deemed excluded by operation of law. CBP is aware of the 
potential for these types of shipments and has developed expertise in 
identifying such activity.
    Comment: Some commenters stated that the interim regulation's seven 
business day response period makes the process for authenticating marks 
unduly burdensome and that officers charged with enforcing the 
intellectual property laws may therefore be deterred from taking 
action.
    CBP Response: CBP believes that the interim regulation's procedure 
will assist CBP officers in making determinations regarding counterfeit 
marks and is similar to various other provisions in the CBP regulations 
that require CBP to issue notice to an importer or other party of 
actions it is undertaking and/or receive information from an importer 
or other party before taking action. CBP is also confident that its 
officers will discharge their sworn duties efficiently, responsibly, 
and professionally at all times.
    Comment: Some commenters stated that the interim regulation's seven 
business day response period will result in the delayed release of 
legitimate goods. Several other commenters specified that the seven 
business day response period is too long and may result in the mark 
owner receiving information to determine authenticity of the mark(s) 
with as little as 11 days left in the 30-day detention period. These 
commenters contended that this is not enough time for mark owners to 
provide meaningful information and is prejudicial to mark owners' 
interests.
    CBP Response: CBP believes that, in the interest of due process, 
the seven business day response period is appropriate and that the 
regulation provides adequate time for both importers and mark owners to 
respond and does not prejudice their interests. CBP further notes that 
if CBP fails to make a determination within the 30-day detention period 
the merchandise is excluded by operation of law.
    Comment: Several commenters stated that the interim regulation's 
seven business day response period is too short, inasmuch as it may not 
provide enough time for an importer to provide information sufficient 
to establish to CBP's satisfaction that detained goods bear genuine 
marks.
    CBP Response: CBP disagrees. Although CBP may release section 
(b)(1) information to the mark owner after the seven business day 
response period, the importer has the option of submitting information 
to CBP up to the end of the detention period or until CBP determines 
that the goods bear counterfeit marks. CBP believes that this time 
frame is adequate to protect importers' interests.

E. Comments Concerning Information Released

    Comment: Several commenters objected to the disclosure of 
information provided in Sec.  133.21(b)(2) of the interim regulation 
whereby CBP may disclose to the mark owner, prior to CBP's seizure of 
the goods as bearing counterfeit marks, the quantity and description of 
merchandise involved in a suspect shipment.
    CBP Response: CBP can disclose the quantity and description of 
merchandise at any time after merchandise is presented for examination 
as CBP does not consider this information to be protected by the Trade 
Secrets Act. CBP articulated this position in T.D. 98-21, published in 
the Federal Register (63 FR 11996) on March 12, 1998. Nothing in the 
comments has persuaded CBP to change its view.
    Comment: Several commenters contended that the interim regulation 
is unclear as to the meaning of ``quantity'' and the manner by which 
CBP will provide the mark owner with a description of merchandise 
``from the entry.''
    CBP Response: CBP agrees that these provisions require more 
clarity. Accordingly, CBP is amending the regulation to provide that 
the quantity of merchandise involved in the detention and the 
description of detained merchandise will be drawn from CBP arrival or 
entry documents or their electronic equivalents, which could include, 
but will not be limited to, the CBP Form 3461, the CBP Form 7533, the 
CBP Form 7512 (if the detention is for merchandise moving in-bond), the 
cargo manifest (if no entry has yet been filed), or any other document 
or information, as applicable.
    Comment: One commenter requested that CBP reconsider the scope of 
information that it redacts when providing samples or photographs/

[[Page 56377]]

images to a mark owner under Sec.  133.21(b)(3) of the interim 
regulation. The commenter observed that determining whether suspect 
goods bear counterfeit marks may require a mark owner to review 
information such as product codes, packaging, and SKUs and that 
disclosing these marks and numbers does not violate the Trade Secrets 
Act as they may not necessarily identify the importer.
    CBP Response: CBP believes that in order to protect importers' 
interests, any identifying information such as serial numbers, dates of 
manufacture, lot codes, batch numbers, universal product codes, the 
name or address of the manufacturer, exporter, or importer of the 
merchandise, or any mark that could reveal the name or address of the 
manufacturer, exporter, or importer of the merchandise, in alphanumeric 
or other formats, should be redacted when CBP provides samples, 
photographs, or images prior to the running of the seven business day 
response period.
    Comment: One commenter stated that the interim regulation is 
deficient in that it provides for disclosure of only certain limited 
information appearing on the packaging of suspect merchandise. The 
commenter contended that the mark owner may need more information to 
provide meaningful assistance.
    CBP Response: CBP disagrees with the commenter's reading of the 
interim regulation. CBP is not limited to disclosing information 
appearing only on the packaging of suspect merchandise. Once the seven 
business day response period has expired without resolution of 
authenticity, CBP is authorized to disclose to the mark owner all 
information appearing on the goods as well as all information appearing 
on their retail packaging. The NDAA specifically authorizes CBP to 
disclose certain information to a mark owner, including unredacted 
samples and photographs/images of suspect merchandise (and its retail 
packaging). The interim rule is consistent with that grant of 
authority.

F. Comments Concerning Post-Seizure

    Comment: Several commenters recommend that CBP make the interim 
rule's post-seizure disclosure provision mandatory rather than 
discretionary, requiring CBP, in every case, to provide unredacted 
photographs/images or samples of the goods seized to the mark owner.
    CBP Response: CBP does not believe that post-seizure disclosure to 
mark owners needs to be made mandatory through regulations.
    Comment: One commenter recommended that CBP amend the interim 
regulation to require the retention of seized counterfeit goods for at 
least 60 days after CBP has provided the mark owner with formal notice 
of the seizure. The commenter stated that CBP often disposes of the 
goods before notice is given, depriving mark owners of the opportunity 
to request and obtain samples.
    CBP Response: The comment inaccurately reflects CBP's procedure 
regarding seizure, forfeiture, and destruction of goods bearing 
counterfeit marks. Generally, CBP retains seized merchandise for at 
least 90 days from the date of seizure, through completion of the 
forfeiture process, prior to destruction of the goods. Section 
133.21(d) of the interim regulation (redesignated in this final rule as 
Sec.  133.21(e)) requires CBP to disclose to the mark owner 
comprehensive importation information, if available, within 30 business 
days of the notice of seizure to the importer.
    Comment: Several commenters recommended that CBP commit to 
rendering determinations on 19 U.S.C. 1618 petitions (challenging the 
seizure or forfeiture or both) no later than 30 days after such 
petitions are filed.
    CBP Response: Part 171 of the CBP regulations governs the agency's 
handling of petitions for remission or mitigation of fines, penalties, 
and forfeitures filed pursuant to 19 U.S.C. 1618. CBP believes that the 
administrative procedure set forth in its existing regulations is 
adequate to protect importers' interests in matters involving seized 
merchandise and that an amendment to these regulations is unnecessary.

Conclusion and List of Changes

    Based on the foregoing analysis of the comments and CBP's further 
consideration of the matter, CBP is adopting the interim amendments to 
the CBP regulations published in the Federal Register (77 FR 24375) on 
April 24, 2012 as final with the exception of the amendments to 
Sec. Sec.  133.21 and 151.16 which are being adopted as final with the 
following modifications:
    CBP is amending Sec.  133.21 to enhance its readability and to 
reflect the clarifications, amendments and organizational changes 
discussed above. Specifically:
    1. CBP is amending Sec.  133.21(b) by eliminating the optional 30-
day extension of the detention period as CBP now believes that such an 
extension is unnecessary.
    2. CBP is reorganizing the text of Sec.  133.21(b) by redesignating 
the existing introductory text and paragraphs (b)(1), (b)(2), and 
(b)(3) as newly redesignated paragraphs (b)(1) through (b)(5). Within 
Sec.  133.21(b):
     Paragraph (b)(1) restates the 30-day detention period 
provided for in 1499(c).
     Paragraph (b)(2)(i) specifies that a notice of detention 
is issued to the importer pursuant to 19 CFR 151.16(c) and 19 U.S.C. 
1499(c), and that CBP will also inform the importer that certain 
information may already have been disclosed to the owner of the mark, 
or may be disclosed concurrent with the issuance of the notice of 
detention, and that the importer has seven business days from the date 
of the notice of detention to present information that establishes, to 
CBP's satisfaction, that the detained merchandise does not bear a 
counterfeit mark.
     New paragraph (b)(2)(ii) provides that 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 bear a counterfeit mark, CBP 
may proceed with the disclosure to the owner of the mark and will so 
notify the importer.
     Paragraph (b)(3) sets forth the information CBP may 
disclose to the mark owner (information appearing on goods and their 
retail packaging and unredacted samples, photographs/images, etc.).
     Redesignated paragraph (b)(4) (paragraph (b)(2) of the 
interim regulation) is amended to clarify that the ``description of the 
merchandise'' and the ``quantity involved'' that CBP releases to the 
mark owner (along with other data) prior to issuance of a detention 
notice is taken from the paper or electronic equivalent of CBP Forms 
3461, 7533, 7512, cargo manifest, advance electronic information, or 
other entry document as appropriate. After issuance of a detention 
notice, this information is taken from the notice of detention. CBP 
will release the information at the same time it issues the detention 
notice to the importer, or as soon afterward as possible.
     Paragraph (b)(5) provides for release of redacted 
photographs/images and samples to the mark owner.
    3. In Sec.  133.21(c), pertaining to release of unredacted 
photographs, images and samples to the mark owner under paragraph (b), 
CBP is:
     Clarifying the heading text to state that the provision 
pertains to conditions associated with the disclosure.
     Adding language to provide that, with the release of the 
information or the photographs, images or samples,

[[Page 56378]]

CBP will notify the mark owner that some or all of the information it 
is receiving may be subject to the protections of the Trade Secrets 
Act, and is only being provided to the mark owner to assist CBP in 
determining whether the merchandise described in the notice of 
detention bears counterfeit marks.
     Reorganizing the provision into two sub-paragraphs to 
enhance readability.
    4. Sections 133.21(b)(5), (c)(2),and (f), relating to the terms of 
the IPR sample bond, are amended to clarify that the IPR sample bond is 
posted to indemnify the importer or owner of the sample against any 
loss or damage resulting from the furnishing of the sample by CBP to 
the owner of the mark.
    5. CBP is adding a new paragraph (d) to Sec.  133.21 to provide for 
release of unredacted samples to the importer any time after 
presentation of the suspect goods to CBP for examination.
    6. Existing Sec.  133.21(d), pertaining to the seizure of goods and 
disclosure of comprehensive importation information to the mark owner, 
is re-designated as paragraph (e) in this final rule and clarified to 
reflect that the ``description'' and the ``quantity'' of the 
merchandise provided to the mark owner by CBP is taken from the notice 
of seizure (and intent to forfeit).
    7. Existing Sec.  133.21(e), pertaining to photographs/images and 
samples being made available to the mark owner after seizure, is re-
designated as paragraph (f) in this final rule.
    8. Existing Sec.  133.21(f), pertaining to consent of the mark 
owner, is re-designated as paragraph (g) in this final rule.
    This document amends the specific authority citation for Sec. Sec.  
133.21 through 133.25 to reflect 10 U.S.C. 2302.
    Lastly, this final rule amends Sec.  151.16(a) by removing the 
reference to ``imports of articles bearing counterfeit marks or 
suspected counterfeit marks.''
    CBP is adopting as final, with the clarifications and amendments 
discussed above, the interim amendments set forth in CBP Dec. 12-10 
that went into effect on April 24, 2012. The additional changes made to 
the interim regulation in this final rule include non-substantive 
editorial changes that improve readability, as well as logical-
outgrowth changes to the interim regulation's provisions, as described 
above. In an effort to provide the trade, if necessary, with the 
opportunity to make adjustments to their business practices, CBP has 
determined to delay the effective date of this final rule for a period 
of 30 days from the date of publication of this document in the Federal 
Register.

 Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been designated a ``significant regulatory action'' 
although not economically significant, under section 3(f) of Executive 
Order 12866. Accordingly, the rule has been reviewed by the Office of 
Management and Budget.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), 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).
    One of CBP's primary roles is to safeguard the U.S. economy from 
the importation of counterfeit goods. Prior to the publication of the 
interim final rule, if CBP needed assistance in determining whether an 
import bears counterfeit marks, the agency was restricted to only 
sharing redacted samples of the import in question with a right holder. 
However, due to the highly technical nature of some imports and the 
continuously increasing sophistication of counterfeiters, sharing 
redacted samples with right holders is no longer sufficient in certain 
circumstances. To broaden CBP's ability to identify counterfeit goods, 
Congress included a provision to the National Defense Authorization Act 
for Fiscal Year 2012 (NDAA) (Public Law 112-81, 10 U.S.C. 2303) that 
allows CBP to share unredacted samples of imports suspected of bearing 
counterfeit marks with the right holders of the trademarks in question 
in order to aid CBP in determining whether the suspect goods are 
violative.\1\
---------------------------------------------------------------------------

    \1\ Note that this rule does not alter CBP's ability to provide 
redacted photographs/images, samples, or retail packaging (including 
labels) of suspect merchandise to the right holder of the trademark 
without prior notification to the importer.
---------------------------------------------------------------------------

    By sharing unredacted samples of imports with mark owners, however, 
mark owners may gain access to some sensitive information about the 
importer, such as its supply chain and purchase price. To mitigate the 
potential unnecessary release of an importer's trade secrets to a mark 
owner, the interim final rule established a procedure to allow an 
importer seven business days to demonstrate to CBP that suspect marks 
are not violative. If the importer is unable to do so, CBP may seek 
assistance from the mark owner by releasing unredacted samples of the 
import(s) in question. As discussed earlier, during the comment period 
for the interim final rule CBP received comments regarding the possible 
misuse of trade secret information by mark owners when viewing 
unredacted samples. In order to address such misuses, and thus any 
potential business impacts to the importation of legitimate trade, CBP 
is amending the interim regulation to provide that the disclosure to 
the mark owner must include a statement informing the mark owner that 
some or all of the information being disclosed may be information 
protected from disclosure by the Trade Secrets Act (18 U.S.C. 1905).
    As described in the ``Paperwork Reduction Act'' section of this 
document, CBP estimates that it takes an importer two hours to provide 
proof to CBP that establishes that suspect goods do not bear 
counterfeit marks. CBP estimates the average wage of an importer to be 
$28.50 per hour. Thus, CBP estimates it will cost a small entity $57.00 
to demonstrate that its import does not bear counterfeit marks. CBP 
does not believe $57.00 constitutes a significant economic impact. CBP 
does recognize, however, that such repeated inquiries could eventually 
rise to the level of a significant economic impact. CBP lacks data on 
how often a particular importer would be affected by this regulation. 
CBP subject matter experts, however, are unaware of any instances where 
a particular importer was repeatedly requested to provide information 
to CBP for the purpose of establishing that an import does not bear 
counterfeit marks. Additionally, based on CBP's experience over the 
years (including in implementing the interim rule), CBP anticipates 
that law-abiding importers will not be subject to the provisions in 
this rule on a repeated basis. Further, we note that providing this 
information to CBP is optional on the part of the importer. CBP did not

[[Page 56379]]

receive any comments on the interim final rule regarding the cost to 
importers of providing proof to CBP that establishes that suspect goods 
do not bear counterfeit marks. Due to the harm that counterfeit goods 
pose to public health and safety, this rule went into effect as an 
interim final rule on the date of its publication on April 24, 2012. As 
discussed earlier, CBP lacks data on how many importers have been 
affected by the interim rule, and on how often any particular importer 
has been affected. As a general matter, any importer may be affected by 
this rule, and that is because the rule will be applied when CBP cannot 
make a determination--without the use of these regulatory provisions--
as to whether an import(s) bears a counterfeit mark. Because this rule 
could be applied to any importer, CBP believes that this rule will 
potentially have an effect on a substantial number of small entities.
    While this rule will potentially have an effect on a substantial 
number of small entities, CBP does not believe that an estimated cost 
to an importer of $57.00 per affected import constitutes a significant 
economic impact (also, as discussed above, providing this information 
to CBP is optional on the part of the importer). Thus, CBP certifies 
this regulation will 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: 1,350.
    Number of Responses: 1,350.
    Time per Response: 2 hours.
    Total Annual Burden Hours: 2,700.
    There is no change in burden hours under this collection with this 
rule.

Signing Authority

    This rulemaking is being issued in accordance with 19 CFR 
0.1(a)(1), pertaining to the authority of the Secretary of the Treasury 
(or that of his or her delegate) to approve regulations concerning 
trademark enforcement.

List of Subjects

19 CFR Part 133

    Copying or simulating trademarks, Copyrights, Counterfeit 
trademarks, Customs duties and inspection, Detentions, Reporting and 
recordkeeping requirements, Restricted merchandise, Seizures and 
forfeitures, Trademarks, Trade names.

19 CFR Part 151

    Customs duties and inspection, Examination, Imports, Penalties, 
Reporting and recordkeeping requirements, Sampling and testing.

Amendments to the CBP Regulations

    Accordingly, the interim rule amending parts 133 and 151 of title 
19 of the Code of Federal Regulations (19 CFR parts 133 and 151), which 
was published at 77 FR 24375 on April 24, 2012, is adopted as final 
with the following changes:

PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS

0
1. The general authority citation for part 133 continues, and the 
specific authority citation for Sec. Sec.  133.21 through 133.25 is 
added, to read as follows:

    Authority:  15 U.S.C. 1124, 1125, 1127; 17 U.S.C. 101, 601, 602, 
603; 19 U.S.C. 66, 1202, 1499, 1526, 1624; 31 U.S.C. 9701. Sections 
133.21 through 133.25 also issued under 18 U.S.C. 1905; Sec. 818(g), 
Pub. L. 112-81 (10 U.S.C. 2302);


0
2. In Sec.  133.21:
0
a. Paragraphs (b) and (c) are revised;
0
b. Paragraphs (d), (e), and (f) are redesignated as paragraphs (e), 
(f), and (g);
0
c. A new paragraph (d) is added; and
0
d. Redesignated paragraphs (e) and (f) are revised.
    The revisions and addition read as follows:


Sec.  133.21  Articles suspected of bearing counterfeit marks.

* * * * *
    (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 bears a mark suspected by CBP of 
being a counterfeit version of a mark that is registered with the U.S. 
Patent and Trademark Office and is recorded with CBP pursuant to 
subpart A of this part. The detention will be for a period of up to 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 owner of the 
mark--(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 Sec.  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 bears counterfeit marks:
    (A) CBP may have previously disclosed to the owner of the mark, 
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 
will be released to the owner of the mark, if available, no later than 
the date of issuance of the notice of detention; and
    (B) CBP may disclose to the owner of the mark 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 presents 
information within seven business days of the notification establishing 
that the detained merchandise does not bear a counterfeit mark.
    (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 bear a 
counterfeit mark, CBP may proceed with the disclosure of information 
described in paragraph (b)(3) of this section to the owner of the mark 
and will so notify the importer.
    (3) Disclosure to owner of the mark of information appearing on 
detained merchandise and/or its retail packaging, including unredacted 
photographs, images or samples. When making a disclosure to the owner 
of the mark under paragraph (b)(2)(ii) of this section, CBP may 
disclose information appearing on the merchandise and/or its retail 
packaging (including labels), images (including photographs) of the 
merchandise and/or its retail packaging in its condition as presented 
for examination (i.e., an unredacted condition), or a sample of the 
merchandise and/or its retail packaging in its condition as presented 
for examination. The release of a sample will be in accordance with, 
and subject to, the bond and return requirements of

[[Page 56380]]

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 marks appearing on the merchandise 
or its retail packaging (including labels), in alphanumeric or other 
formats.
    (4) Disclosure to owner of the mark of limited importation 
information. From the time merchandise is presented for examination, 
CBP may disclose to the owner of the mark limited importation 
information in order to obtain assistance in determining whether an 
imported article bears a counterfeit mark. Where CBP does not disclose 
this information to the owner of the mark prior to issuance of the 
notice of detention, it will do so concurrently with the issuance of 
the notice of detention, unless the information is unavailable, in 
which case CBP will release the information as soon as possible after 
issuance of the notice of detention. The limited importation 
information CBP will disclose to the owner of the mark 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 Sec.  142.3(a)(1) or (b) of this chapter), the CBP Form 
7512, cargo manifest, advanceelectronic 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 Sec.  
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 the mark 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 bears a 
counterfeit mark and at any time after presentation of the merchandise 
for examination, provide to the owner of the mark photographs, 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 
mark that could reveal the name or address of the manufacturer, 
exporter, or importer of the merchandise, in alphanumeric or other 
formats. CBP may release to the owner of the mark a sample under this 
paragraph when the owner furnishes to CBP a bond in the form and amount 
specified by CBP, conditioned to indemnify the importer or owner of the 
imported article against any loss or damage resulting from the 
furnishing of the sample by CBP to the owner of the mark. CBP may 
demand the return of the sample at any time. The owner of the mark must 
return the sample to CBP upon demand or at the conclusion of any 
examination, testing, or similar procedure performed on the sample. In 
the event that the sample is damaged, destroyed, or lost while in the 
possession of the owner of the mark, the owner must, in lieu of return 
of the sample, certify to CBP that: ``The sample described as [insert 
description] and provided pursuant to 19 CFR 133.21(b)(5) was (damaged/
destroyed/lost) during examination, testing, or other use.''
    (c) Conditions of disclosure to owner of the mark 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 counterfeit mark 
determinations. In order to obtain assistance in determining whether an 
imported article bears a counterfeit mark, CBP may disclose to the 
owner of the mark, prior to seizure, information appearing on the 
merchandise and/or its retail packaging (including labels), unredacted 
photographs or images of the merchandise and/or its retail packaging in 
its condition as presented for examination, or an unredacted sample of 
the imported merchandise and/or its retail packaging in its condition 
as presented for examination, in accordance with paragraphs (b)(2)(ii) 
and (3) of this section. Upon release of such information, photographs, 
images, or samples, CBP will notify the owner of the mark 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 mark for the purpose of assisting CBP 
in determining whether the merchandise bears a counterfeit mark.
    (2) Bond. CBP may release to the owner of the mark a sample under 
paragraphs (b)(2)(ii) and (3) of this section when the owner furnishes 
to CBP a bond in the form and amount specified by CBP, conditioned to 
indemnify the importer or owner of the imported article against any 
loss or damage resulting from the furnishing of the sample by CBP to 
the owner of the mark. CBP may demand the return of the sample at any 
time. The owner of the mark must return the sample to CBP upon demand 
or at the conclusion of any examination, testing, or similar procedure 
performed on the sample. In the event that the sample is damaged, 
destroyed, or lost while in the possession of the owner of the mark, 
the owner must, in lieu of return of the sample, certify to CBP that: 
``The sample described as [insert description] and provided pursuant to 
19 CFR 133.21(c) was (damaged/destroyed/lost) during examination, 
testing, or other use.''
    (d) 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 
bearing a counterfeit mark 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 133.21(d) was (damaged/destroyed/lost) during 
examination, testing, or other use.''
    (e) Seizure and disclosure to owner of the mark 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 bears a counterfeit mark, CBP will seize such merchandise and, 
in the absence of the written consent of the owner of the mark, forfeit 
the seized merchandise in accordance with the customs laws. When 
merchandise is seized under this section, CBP will disclose to the 
owner of the mark the following 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;

[[Page 56381]]

    (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 the 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 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 mark. To obtain a sample 
under this paragraph, the owner of the mark must furnish to CBP a bond 
in the form and amount specified by CBP, conditioned to indemnify the 
importer or owner of the imported article against any loss or damage 
resulting from the furnishing of the sample by CBP to the owner of the 
mark. CBP may demand the return of the sample at any time. The owner of 
the mark must return the sample to CBP upon demand or at the conclusion 
of the examination, testing, or other use in pursuit of a related 
private civil remedy for infringement. In the event that the sample is 
damaged, destroyed, or lost while in the possession of the owner of the 
mark, the owner must, in lieu of return of the sample, certify to CBP 
that: ``The sample described as [insert description] and provided 
pursuant to 19 CFR 133.21(f) was (damaged/destroyed/lost) during 
examination, testing, or other use.''
* * * * *

PART 151--EXAMINATION, SAMPLING, AND TESTING OF MERCHANDISE

0
3. 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;
* * * * *


Sec.  151.16  [Amended]

0
4. Section 151.16(a) is amended by removing the words, ``imports of 
articles bearing counterfeit marks or suspected counterfeit marks,''.

R. Gil Kerlikowske,
Commissioner, U.S. Customs and Border Protection.
    Approved: September 15, 2015.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2015-23543 Filed 9-17-15; 8:45 am]
BILLING CODE 9111-14-P



                                            56370            Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations

                                            Office of Management and Budget                         opportunity for public comment are not                  Dated: September 10, 2015.
                                            (OMB) Control Number. This rule                         required to be given for this rule under              Karen H. Nies-Vogel,
                                            contains a collection of information                    the Administrative Procedure Act or by                Director, Office of Exporter Services.
                                            subject to the requirements of the PRA.                 any other law, the analytical                         [FR Doc. 2015–23500 Filed 9–17–15; 8:45 am]
                                            This collection has been approved by                    requirements of the Regulatory                        BILLING CODE 3510–33–P
                                            OMB under Control Number 0694–0088                      Flexibility Act (5 U.S.C. 601 et seq.) are
                                            (Multi-Purpose Application), which                      not applicable. Therefore, this
                                            carries a burden hour estimate of 58                    regulation is issued in final form.                   DEPARTMENT OF HOMELAND
                                            minutes to prepare and submit form
                                                                                                    List of Subjects in 15 CFR Part 774                   SECURITY
                                            BIS–748. Send comments regarding this
                                            burden estimate or any other aspect of                    Exports, Reporting and recordkeeping                U.S. Customs and Border Protection
                                            this collection of information, including               requirements.
                                            suggestions for reducing the burden, to                   For the reasons stated in the                       DEPARTMENT OF THE TREASURY
                                            Jasmeet Seehra, Office of Management                    preamble, part 774 of the Export
                                            and Budget (OMB), and to the                            Administration Regulations (15 CFR                    19 CFR Parts 133 and 151
                                            Regulatory Policy Division, Bureau of                   parts 730–774) is amended as follows:
                                            Industry and Security, Department of                                                                          [Docket No. USCBP–2012–0011; CBP Dec.
                                            Commerce, 14th Street & Pennsylvania                    PART 774—[AMENDED]                                    15–12]
                                            Avenue NW., Room 2705, Washington,                                                                            RIN 1515–AD87
                                            DC 20230.                                               ■ 1. The authority citation for 15 CFR
                                              3. This rule does not contain policies                part 774 continues to read as follows:                Disclosure of Information for Certain
                                            with Federalism implications as that                      Authority: 50 U.S.C. app. 2401 et seq.; 50          Intellectual Property Rights Enforced
                                            term is defined in Executive Order                      U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C.        at the Border
                                            13132.                                                  7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et
                                              4. The provisions of the                              seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u);       AGENCIES:  U.S. Customs and Border
                                            Administrative Procedure Act (5 U.S.C.                  42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C.            Protection, Department of Homeland
                                            553) requiring notice of proposed                       1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22           Security; Department of the Treasury.
                                                                                                    U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O.
                                            rulemaking and the opportunity for                                                                            ACTION: Final rule.
                                                                                                    13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
                                            public participation are waived for good                228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
                                            cause because they are unnecessary and                                                                        SUMMARY:    This document adopts as a
                                                                                                    Comp., p. 783; Notice of August 7, 2015 (80
                                            contrary to the public interest. (See 5                                                                       final rule, with changes, interim
                                                                                                    FR 48233 (Aug. 11, 2015)).
                                            U.S.C. 553(b)(B)). The changes                                                                                amendments to the U.S. Customs and
                                                                                                    ■ 2. In Supplement No. 1 to Part 774                  Border Protection (CBP) regulations
                                            contained in this rule are non-                         (the Commerce Control List), Category
                                            substantive technical corrections of a                                                                        pertaining to importations of
                                                                                                    1— Special Materials and Related                      merchandise bearing suspected
                                            previously published rule that has
                                                                                                    Equipment, Chemicals,                                 counterfeit trademarks or trade names
                                            already been exempted from notice and
                                                                                                    ‘‘Microorganisms’’ and ‘‘Toxins,’’ ECCN               that are recorded with CBP. Specifically,
                                            comment. This rule is necessary to
                                                                                                    1C351 is amended under the ‘‘Items’’                  the amendments allow CBP, for the
                                            ensure clarity in the regulations and
                                                                                                    paragraph in the List of Items Controlled             purpose of obtaining assistance in
                                            accuracy regarding the scope of controls
                                                                                                    section by revising the Note                          determining whether merchandise bears
                                            in the Note to ECCN 1C351.a.4. If this
                                                                                                    immediately following paragraph a.4.b                 a counterfeit mark, to disclose to a
                                            rule were delayed to allow for notice
                                                                                                    to read as follows:                                   trademark or other mark owner
                                            and comment, it would result in further
                                            confusion caused by the incorrect cross-                Supplement No. 1 to Part 774—the                      information appearing on merchandise
                                            references in that ECCN. These changes                  Commerce Control List                                 or its retail packaging that may
                                            are also essential to ensuring the                                                                            otherwise be protected by the Trade
                                                                                                    *    *    *     *      *                              Secrets Act. This final rule also amends
                                            accurate and complete implementation                    1C351 Human and animal pathogens
                                            of the June 16, 2015, final rule.                                                                             the CBP regulations to further enhance
                                                                                                       and ‘‘toxins’’, as follows (see List of            information-sharing procedures by
                                              The provision of the Administrative
                                                                                                       Items Controlled).                                 requiring CBP to release to the importer
                                            Procedure Act (5 U.S.C. 553) requiring
                                            a 30-day delay in effectiveness is also                 *    *    *     *      *                              an unredacted sample or image of the
                                            waived for good cause. (5 U.S.C.                        List of Items Controlled                              suspect merchandise or its retail
                                            553(d)(3)). The corrections contained in                                                                      packaging any time after presentation of
                                            this final rule are non-substantive                     *      *    *        *       *                        the suspect goods for examination. This
                                                                                                    Items:                                                change is to reflect that an importer may
                                            technical corrections of a previously                      a. * * *
                                            published rule that has already been                       a.4. * * *                                         not have complete information about
                                            exempted from notice and comment. If                       a.4.b. * * *                                       the marks appearing on imported goods,
                                            this rule were delayed to allow for a 30-                                                                     and release of such unredacted
                                                                                                       Note: Avian influenza (AI) viruses of the          information will assist the importer in
                                            day delay in effectiveness, it would                    H5 or H7 subtype that do not have either of
                                            result in further confusion caused by the               the characteristics described in 1C351.a.4
                                                                                                                                                          providing CBP with a meaningful
                                            incorrect cross-references in the                       (specifically, 1C351.a.4.a or a.4.b) should be        response to a detention notice. The
                                            aforementioned ECCN. These changes                      sequenced to determine whether multiple               amendments in this final rule also
                                            are also essential to ensuring the                      basic amino acids are present at the cleavage         require CBP to release limited
                                            accurate and complete implementation                    site of the haemagglutinin molecule (HA0). If         importation information to the mark
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                                            of the June 16, 2015, final rule.                       the amino acid motif is similar to that               owner no later than the time of issuance
                                              Further, no other law requires that a                 observed for other HPAI isolates, then the            of the detention notice to the importer,
                                            notice of proposed rulemaking and an                    isolate being tested should be considered as          rather than within 30 business days
                                                                                                    HPAI and the virus is controlled under
                                            opportunity for public comment be                       1C351.a.4.
                                                                                                                                                          from the date of detention. Finally,
                                            given for this final rule. Because a                                                                          these amendments require CBP to notify
                                            notice of proposed rulemaking and an                    *      *      *      *       *                        the mark owner that use of any


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                                                             Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations                                         56371

                                            information otherwise protected by the                  Discussion of Comments                                   • The term ‘‘redacted sample’’ is used
                                            Trade Secrets Act that is disclosed by                     Twenty commenters responded to the                 to describe samples of goods displaying
                                            CBP to the mark owner is for the limited                interim rule’s solicitation of public                 information all of which or some of
                                            purpose of assisting CBP.                               comment. Each submission consisted of                 which has been removed, obscured, or
                                                                                                    multiple comments and several were                    obliterated. Such information may
                                            DATES:   Effective on October 19, 2015.
                                                                                                    submitted by or on behalf of                          include the names and addresses of
                                            FOR FURTHER INFORMATION CONTACT:     Goli               associations. A majority of commenters                manufacturers, shippers, exporters, or
                                            Gharib, Intellectual Property Rights                    expressed support for the interim rule’s              importers that appear on merchandise
                                            Branch, Regulations and Rulings, Office                 primary purpose of providing a                        or its retail packaging, or serial
                                            of International Trade, (202) 325–0216.                 procedure for the disclosure of                       numbers, dates of manufacture, lot
                                                                                                    information by CBP to mark owners for                 codes, batch numbers, universal product
                                            SUPPLEMENTARY INFORMATION:
                                                                                                    the purpose of determining whether                    codes, or other identifying marks that
                                            Background                                              imported goods bear counterfeit marks.                appear on merchandise or its retail
                                                                                                    Many of these commenters expressed                    packaging in alphanumeric or other
                                               On April 24, 2012, CBP published                                                                           formats. Redacted samples may be
                                                                                                    the view that the interim rule does not
                                            CBP Dec. 12–10 in the Federal Register                                                                        photographed or otherwise reproduced
                                                                                                    go far enough to support CBP’s
                                            (77 FR 24375), setting forth interim                                                                          for release to mark owners.
                                                                                                    enforcement efforts and made
                                            amendments to the CBP regulations that                                                                           • ‘‘Comprehensive importation
                                                                                                    recommendations for improving the
                                            pertain to importations of merchandise                                                                        information,’’ released by CBP under
                                                                                                    regulation.
                                            bearing suspected counterfeit                              A minority of commenters opposed                   § 133.21(d) of the interim regulation
                                            trademarks or trade names that are                      the rule. Some of these commenters                    (redesignated as § 133.21(e) in this final
                                            recorded with CBP. The interim                          expressed concern that the interim                    rule), includes limited importation
                                            regulation, which went into effect upon                 regulation may have unintended                        information plus the following
                                            publication, made several changes to                    consequences on the flow of legitimate                additional information: Name and
                                            subpart C of part 133 of title 19 of the                trade, such as by enabling mark owners                address of the manufacturer, exporter,
                                            Code of Federal Regulations (19 CFR                     to prevent competing legitimate goods                 and importer.
                                            part 133) regarding the detention of                    from entering commerce, and may                          • The terms ‘‘goods’’ and
                                            suspect merchandise and the disclosure                  create administrative burdens for the                 ‘‘merchandise’’ are used
                                            of information to mark owners during                    agency. The comments, and CBP’s                       interchangeably.
                                            detention of goods bearing potentially                  analyses thereof, are set forth below.
                                            counterfeit marks and after seizure of                                                                        B. Comments Concerning Legal Issues
                                            goods bearing counterfeit marks. These                  A. Terminology
                                                                                                                                                          1. Comments Concerning Applicability
                                            changes included a clarifying revision of                  For purposes of the comment                        of the Trade Secrets Act (18 U.S.C.
                                            the definition of ‘‘counterfeit                         discussion, the following terms are                   1905)
                                            trademark’’ and the addition of a 30-day                defined as set forth below:
                                            detention period relative to goods                         • ‘‘Section (b)(1) information’’ refers               Comment: One commenter contended
                                            suspected of bearing counterfeit marks.                 to the specified information CBP is                   that the Trade Secrets Act only prohibits
                                                                                                    authorized to release under                           unauthorized disclosures of personally
                                               CBP Dec. 12–10 sets forth a detailed                                                                       identifiable information by a
                                            discussion of the statutory scheme                      § 133.21(b)(1) of the interim regulation:
                                                                                                    Information appearing on suspect goods                government official or employee who
                                            pertaining to enforcement of the                                                                              received the information in the course
                                            intellectual property laws and CBP’s                    or their retail packaging (including
                                                                                                    labels) and unredacted samples or                     of his employment.
                                            derived authority to promulgate the                                                                              CBP Response: CBP disagrees. The
                                            interim amendments whereby CBP                          images (photographs, etc.) of the suspect
                                                                                                    goods or their retail packaging. ‘‘Section            Trade Secrets Act applies to any
                                            officers may disclose certain                                                                                 information that ‘‘. . . concerns or
                                            information that might comprise                         (b)(1) information,’’ in whatever form
                                                                                                    disclosed, may include manufacturer,                  relates to the trade secrets, processes,
                                            otherwise confidential commercial or                                                                          operations, style of work, or apparatus,
                                            financial information in order to assist                shipper, exporter, or importer name and
                                                                                                    address when it appears on                            or to the identity, confidential statistical
                                            CBP in identifying merchandise bearing                                                                        data, amount or source of any income,
                                            counterfeit marks at the time of                        merchandise or its retail packaging, or
                                                                                                    serial numbers, dates of manufacture,                 profits, losses, or expenditures of any
                                            detention. See National Defense                                                                               person, firm, partnership, corporation,
                                            Authorization Act for Fiscal Year 2012                  lot codes, batch numbers, universal
                                                                                                    product codes, or other identifying                   or association; . . . .’’ (18 U.S.C. 1905).
                                            (NDAA) (Public Law 112–81, 10 U.S.C.                                                                             Comment: Several commenters
                                            2302); Trade Secrets Act (18 U.S.C.                     marks, appearing on merchandise or its
                                                                                                    retail packaging in alphanumeric or                   questioned CBP’s interpretation of the
                                            1905); Administrative Procedures Act (5                                                                       Trade Secrets Act as set forth in the
                                            U.S.C. 551 et seq.); Lanham Act (15                     other formats.
                                                                                                       • The term ‘‘unredacted sample’’                   interim rule, which is that information
                                            U.S.C. 1124, 1125, 1127); Tariff Act of                                                                       appearing on imported articles and their
                                                                                                    refers to a sample (including its
                                            1930, as amended (19 U.S.C. 1526(e)                                                                           retail packaging is information
                                                                                                    packaging) in its original condition as
                                            and 1595a(c)). Interested parties may                   presented to CBP for examination.                     potentially covered by the Trade Secrets
                                            refer to CBP Dec. 12–10 for that                           • The term ‘‘limited importation                   Act’s protection against disclosure.
                                            background information.                                 information’’ refers to the basic                        CBP Response: CBP’s view is that
                                               Although the interim regulatory                      information CBP releases under                        while the Trade Secrets Act protects
                                            amendments were promulgated without                     § 133.21(b)(2) of the interim regulation              from disclosure information that
tkelley on DSK3SPTVN1PROD with RULES




                                            prior public notice and comment                         (redesignated as § 133.21(b)(4) in this               identifies persons, or which may lead to
                                            procedures and took effect on April 24,                 final rule). Limited importation                      the identification of persons, the Act is
                                            2012, CBP Dec. 12–10 provided for the                   information consists of: Date of                      not limited to such information. The Act
                                            submission of public comments which                     importation, port of entry, and                       also covers a comprehensive array of
                                            would be considered before adoption of                  description, quantity, and country of                 business, commercial, and financial
                                            the interim regulations as a final rule.                origin of the goods.                                  information.


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                                            56372            Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations

                                               Comment: Several commenters were                       CBP Response: The Trade Secrets Act                 3. Comments Raising Other Legal
                                            of the view that CBP had changed its                    prohibits government officials from                   Concerns
                                            practice in 2008 to reflect that                        disclosing protected information                         Comment: One commenter
                                            information appearing on imported                       received during the course of their                   recommended that CBP amend the
                                            articles and their retail packaging is                  employment or official duties, unless                 interim regulation to clarify that goods
                                            information potentially covered by the                  disclosure is exempted from the                       that are properly trademarked and that
                                            Trade Secrets Act’s protection against                  prohibition, regardless of whether the                only use an additional protected
                                            disclosure, and that subsequently CBP                   owner of that information may                         trademark in a description of the
                                            required that samples provided to mark                  eventually disclose it to the public.                 product are not covered within the
                                            owners be redacted.                                     Importers of merchandise detained                     scope of this regulation.
                                               CBP Response: The agency has                         under the provisions of the interim                      CBP Response: In many cases, using a
                                            consistently interpreted the Trade                      regulation may ultimately choose not to               trademark in the way described by the
                                            Secrets Act as prohibiting its employees                put the goods on the market or may                    commenter is permissible as a ‘‘fair use’’
                                            from the unauthorized disclosure of                     otherwise dispose of the goods in a                   of the trademark. ‘‘Fair use’’ is a well-
                                            protected information received in the                   manner in which the aforementioned                    established doctrine in trademark law
                                            course of their employment. From                        information appearing on the goods                    that is recognized and honored by the
                                            calendar year 2000 to publication of the                and/or packaging would never be                       courts. See section 33(b)(4) of the
                                            interim rule on April 24, 2012, CBP’s                   disclosed to the public. Importers who                Lanham Act, 15 U.S.C. 1115(b)(4),
                                            written policy was to provide, prior to                 choose to disclose such information are               which provides for a ‘‘fair use’’ defense
                                            seizure of goods bearing counterfeit                    not subject to the Trade Secrets Act as               when ‘‘the use of the name, term, or
                                            marks, only limited importation                         they are not government employees who                 device charged to be an infringement is
                                            information and/or redacted samples to                  have received information pursuant to                 a use, otherwise than as a mark, . . . or
                                            mark owners (Customs Directive 2310–                    their employment. CBP’s release of this               [use of] a term or device which is
                                            008A, April 7, 2000).                                   information under the interim                         descriptive of and used fairly and in
                                               Comment: Several commenters stated                   regulation’s procedure is allowed under               good faith only to describe the goods or
                                            that tracking information and other                     the ‘‘authorized by law’’ exception to                services of such party.’’ CBP honors the
                                            product coding are generally visible to                 the Trade Secrets Act, discussed above.               ‘‘fair use’’ doctrine, but does not believe
                                            the public and that any proprietary                                                                           it is necessary to include it in this CBP
                                            interest in this information belongs to                 2. Comments Concerning the NDAA
                                                                                                                                                          regulation.
                                            the shipper and/or mark owner, not to                     Comment: One commenter stated that                     Comment: Several commenters
                                            the importer. These commenters                          the NDAA is the sole authority for                    recommended that CBP amend the
                                            contended that the Trade Secrets Act                    promulgating the interim regulation and               interim regulation to modify its
                                            does not prohibit disclosure of this                    requested that CBP clarify the legal basis            definition of ‘‘counterfeit’’ based on
                                            information to the mark owner.                          for the regulation.                                   their concerns that CBP officers could
                                               CBP Response: As explained in the                                                                          detain goods that are genuine, albeit
                                            interim rule, markings, alphanumeric                      CBP Response: CBP disagrees with the
                                                                                                    commenter’s premise. As explained in                  repaired or refurbished goods, or goods
                                            symbols, and other coding appearing on                                                                        bearing genuine marks that are
                                            products or their retail packaging may                  the interim rule, the NDAA is not the
                                                                                                    sole source of authority for the interim              unrestricted parallel imports.
                                            reveal information regarding an                                                                                  CBP Response: The interim regulation
                                            importer’s supply chain. This                           regulation’s information disclosure
                                                                                                    procedure. In fact, several statutes,                 employs the definition of ‘‘counterfeit’’
                                            information is of the kind normally                                                                           provided by the Lanham Act at 15
                                            subject to Trade Secrets Act protection                 including 15 U.S.C. 1124, 1125, and
                                                                                                    1127 and 19 U.S.C. 1526(e) authorize                  U.S.C. 1127.
                                            regardless of who may have applied the                                                                           Comment: Several commenters stated
                                            markings/symbols/coding to the                          CBP to disclose to mark owners, for
                                                                                                    purposes of obtaining the mark owners’                that the interim regulation should apply
                                            products or packaging. The Trade                                                                              to other forms of intellectual property,
                                            Secrets Act permits those covered by the                assistance in making infringement
                                                                                                                                                          such as suspected piratical or copyright
                                            Act to disclose protected information                   determinations, information that CBP
                                                                                                                                                          infringing goods, and merchandise
                                            when the disclosure is otherwise                        may disclose under the interim
                                                                                                                                                          suspected of violating the Digital
                                            ‘‘authorized by law,’’ which includes                   regulation.
                                                                                                                                                          Millennium Copyright Act (DMCA), 17
                                            properly promulgated substantive                          Comment: Several commenters                         U.S.C. 1201.
                                            agency regulations authorizing                          contended that the NDAA only applies                     CBP Response: As the above comment
                                            disclosure based on a valid statutory                   to products procured by the military                  concerns amendments to regulations
                                            interpretation. See Chrysler v. Brown,                  and/or matters involving national                     concerning forms of intellectual
                                            441 U.S. 281, 294–316 (1979).                           defense concerns.                                     property other than counterfeit marks, it
                                            Therefore, the ‘‘authorized by law’’                      CBP Response: Several statutes                      falls outside the scope of this final
                                            exception of the Trade Secrets Act                      authorize CBP to disclose to the mark                 rulemaking. CBP recognizes the concern
                                            allows CBP to disclose this protected                   owner the information set forth in the                that there be similar disclosure
                                            information to the mark owner for the                   interim regulation, none of which,                    provisions relating to suspected
                                            limited purpose of obtaining the mark                   including the NDAA, is limited to                     piratical or copyright infringing goods
                                            owner’s assistance in determining                       military procurements and/or                          and merchandise suspected of violating
                                            whether goods bear a counterfeit mark.                  importations raising national defense                 the Digital Millennium Copyright Act
                                               Comment: Some commenters stated                      concerns. The NDAA language is                        (DMCA), 17 U.S.C. 1201, and plans to
                                            that the interim regulation fails to                    unambiguous and applies to any                        address the issue through a separate
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                                            safeguard the commercial and supply                     product CBP suspects of ‘‘being                       proposed rulemaking.
                                            chain information that it purports to                   imported in violation of section 42 of
                                            protect, as that information will                       the Lanham Act.’’ Therefore, CBP                      C. Comments Concerning Action by
                                            inevitably become available to the                      declines to limit the interim regulation’s            Mark Owners
                                            public when the imported goods reach                    applicability as suggested by the                       Comment: Several commenters noted
                                            the market.                                             commenters.                                           that the interim regulation provides an


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                                                             Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations                                      56373

                                            opportunity for mark owners to                          importers, mark owners, and others who                commenter contended that this
                                            potentially abuse the section (b)(1)                    participate in various procedures                     procedure impedes CBP’s enforcement
                                            information provided to them by CBP,                    administered under the customs laws                   effort.
                                            and to disrupt or eliminate lawful                      and regulations. CBP will not seize                      CBP Response: CBP disagrees with the
                                            parallel market competition. Several                    merchandise based solely on                           commenter’s characterization of the
                                            commenters recommended that CBP                         information provided by the mark                      process. In order to seek assistance from
                                            restrict mark owners’ use of section                    owner when CBP deems such                             a mark owner CBP may, at its discretion
                                            (b)(1) information by placing conditions                information to be insufficient or                     at any time after merchandise is
                                            on the manner by which they may                         inconsistent with the facts of the case.              presented for examination, disclose
                                            receive and use the information.                          Comment: One commenter expressed                    limited importation information and
                                               CBP Response: The interim regulation                 concern that mark owners will delay                   redacted samples (or photographs/
                                            allows CBP to release section (b)(1)                    and/or fail to be responsive to CBP’s                 images) to a mark owner.
                                            information to a mark owner after an                    inquiries regarding authenticity of                      Comment: The same commenter
                                            importer has been notified and has had                  marks appearing on suspect goods,                     stated that the interim regulation’s
                                            the opportunity to establish that the                   thereby prejudicing the right of                      procedure prevents CBP from seeking
                                            suspect goods bear genuine marks. This                  importers to an orderly and reasonably                assistance from the mark owner within
                                            regulation is not intended to impede the                expeditious process.                                  the seven business day period after
                                            legal importation of parallel (gray                       CBP Response: CBP believes the                      issuance of the detention notice.
                                            market) goods. However, to address the                  commenter’s concern will be the                          CBP Response: Again, CBP disagrees
                                            concern of these commenters, and the                    exception, not the rule. The interim                  with the commenter’s characterization
                                            concern of those suggesting that                        regulation’s detention period extends                 of the process. As stated above, CBP
                                            conditions and limitations be placed on                 for 30 days from the date goods are                   may, at its discretion at any time after
                                            mark owners receiving section (b)(1)                    presented for examination, which CBP                  merchandise is presented for
                                            information, CBP is amending the                        deems a reasonable time frame                         examination, disclose limited
                                            interim regulation at 19 CFR 133.21(c)                  considering the potential urgency of the              importation information and redacted
                                            to include in the disclosure to the mark                matter. Most cases will be resolved                   samples (or photographs/images) to a
                                            owner a statement that some or all of the               within the 30-day period. If detained                 mark owner.
                                            information being disclosed may be                      articles are not released within the                     Comment: One commenter
                                            information protected from disclosure                   detention period, the articles are                    recommended that CBP amend the
                                            by the Trade Secrets Act. The regulation                deemed excluded in accordance with 19                 regulation to require that a mark owner
                                            provides that CBP is only disclosing the                U.S.C. 1499(c)(5) for purposes of 19                  post a bond in order to receive a sample
                                            information to the owner of the mark for                U.S.C. 1514(a)(4), which pertains to an               only when the value of the sample
                                            the purpose of assisting CBP in                         importer’s right to protest CBP’s                     released to the mark owner is $500 or
                                            determining whether the merchandise                     decisions. Therefore, delay by the mark               more.
                                            bears a counterfeit mark. CBP will take                 owner, whatever the reason, will not                     CBP Response: CBP believes that the
                                            into account, in deciding whether to                    deprive the importer of recourse to gain
                                            make future disclosures to a mark                                                                             bonding requirements set forth in this
                                                                                                    release of its merchandise where the                  final rule are appropriate to indemnify
                                            owner, instances in which the mark                      facts warrant such release.
                                            owner has used the disclosed                                                                                  the importer against any loss or damage
                                            information for another purpose (i.e.,                  D. Comments Pertaining to the Interim                 resulting from the furnishing of a
                                            other than for assisting CPB in making                  Regulation’s Procedure                                sample to the mark owner for purposes
                                            the infringement determination).                                                                              of assisting the government in making
                                                                                                    1. Comments Concerning the Procedure                  an infringement determination.
                                               Comment: Several commenters
                                                                                                    Generally                                                Comment: Several commenters
                                            recommended that CBP amend the
                                            interim regulation to require mark                         Comment: Some commenters noted                     recommended that CBP provide in the
                                            owners receiving section (b)(1)                         that there could be a potential                       regulation an opportunity for the
                                            information from CBP to provide                         disruption to the flow of legitimate trade            importer to have a sample of the suspect
                                            certifications, under penalty of perjury,               by the interim regulation’s required                  goods tested by a qualified laboratory
                                            when reporting to CBP that goods are                    procedures.                                           rather than providing a sample to the
                                            counterfeit and contain spurious                           CBP Response: CBP acknowledges                     mark owner.
                                            versions of the specific marks recorded                 that some goods initially suspected of                   CBP Response: CBP recognizes that
                                            with CBP. One commenter contended                       bearing counterfeit marks will                        laboratory analysis may, in certain
                                            that a certification would provide an                   ultimately be determined to be genuine                instances, be a valuable tool in
                                            assurance of veracity in a mark owner’s                 or otherwise non-violative and that the               determining whether goods bear
                                            response to CBP that the goods bear                     release of these genuine goods will be                genuine marks. CBP will consider any
                                            counterfeit marks.                                      delayed to some extent. However, the                  information, including laboratory
                                               CBP Response: A certification step                   interim regulation’s procedure is                     reports, provided by an importer to
                                            would add administrative complexity                     structured to resolve these issues in a               support the admissibility of goods
                                            and impede CBP’s ability to determine                   reasonably expedited manner, while                    detained under the interim regulation.
                                            a suspect good’s admissibility as quickly               giving appropriate notices to impacted                While information from a laboratory
                                            as possible. The responsibility for                     parties. Suspect goods found to be                    may lead CBP to decide it is not
                                            determining whether the goods bear                      genuine will be released expeditiously.               necessary to provide a sample to a mark
                                            counterfeit marks rests with CBP which                     Comment: One commenter, an                         owner, that is not necessarily the case.
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                                            routinely determines the admissibility                  importer, stated that the interim                        Comment: One commenter, an
                                            of goods under numerous provisions of                   regulation’s procedure prevents CBP                   association representing mark owners,
                                            customs and other laws. In doing so,                    from seeking assistance in determining                stated that its members strongly oppose
                                            CBP considers and determines the                        whether the suspect goods bear                        giving importers the principal role in
                                            veracity of information and the                         counterfeit marks until CBP issues a                  authenticating detained products and
                                            authenticity of documents presented by                  notice of detention to the importer. The              requests that CBP provide right holders


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                                            56374            Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations

                                            with unredacted samples and a direct                       Comment: One commenter noted with                  been the regulatory status quo inasmuch
                                            voice in determining authenticity.                      disapproval that the interim regulation               as mark owners may obtain unredacted
                                               CBP Response: This final rule does                   provides for a 30-day window from the                 samples only after CBP determines that
                                            not give importers the principal role in                date of importation for CBP to make a                 the subject goods bear counterfeit marks
                                            authenticating suspected counterfeit                    determination of ‘‘reasonable suspicion’’             and seizes them or formulates the
                                            marks. Pursuant to 19 U.S.C. 1499, CBP                  and requires CBP to issue a notice of                 intention to seize them.
                                            has the ultimate responsibility for                     detention to the importer within five
                                            determining whether a suspected mark                                                                            CBP Response: CBP disagrees with the
                                                                                                    business days of that determination.
                                            is counterfeit. Moreover, this final rule                  CBP Response: CBP disagrees with the               commenter’s reading of the interim
                                            provides the right holders with                         commenter’s reading of the regulation.                regulation. CBP may, when necessary to
                                            unredacted samples and photographs                      Under 19 U.S.C. 1499, CBP must decide                 determine whether suspect goods bear
                                            and an opportunity to provide CBP with                  whether to release or detain                          counterfeit marks, disclose unredacted
                                            input regarding whether the goods bear                  merchandise within five business days                 samples to the owner of the mark in
                                            a counterfeit mark whenever CBP has an                  following the date on which                           accordance with the interim regulation’s
                                            unresolved suspicion.                                   merchandise is presented for                          notice (to the importer) provisions. This
                                               Comment: Some commenters stated                      examination. Therefore, a five business               disclosure takes place after detention
                                            that allowing the importer an                           day window exists within which CBP                    but before either seizure or the
                                            opportunity to establish that its                       must make a reasonable suspicion                      formulation of an intent to seize.
                                            imported goods are genuine invites                      determination, not a 30-day window.                     Comment: One commenter objected to
                                            fraud and questioned whether CBP                        CBP is also required to issue a notice of             the interim regulation as not providing
                                            would be able to determine the                          detention to the importer no later than               protection to importers against
                                            authenticity of documents and                           five business days after a decision to                disclosure to mark owners of
                                            information provided by an importer.                    detain the merchandise is made.
                                               CBP Response: There is always a risk                                                                       information protected by the Trade
                                                                                                    Therefore, the importer will learn of the
                                            that CBP receives incorrect information,                                                                      Secrets Act with respect to marks that
                                                                                                    detention within ten business days of
                                            whether from an importer or another                                                                           are not recorded with CBP.
                                                                                                    the merchandise being presented for
                                            interested party. CBP, however, has                     examination.                                            CBP Response: The interim regulation
                                            extensive experience in determining the                    Comment: Several commenters stated                 does, in fact, require that a mark be
                                            admissibility of goods under the                        that CBP should be required to issue                  registered with the U.S. Patent and
                                            numerous provisions of the customs                      uniform notices of detention that                     Trademark Office and recorded with
                                            laws and other laws it enforces and is                  specify the reason(s) for detention.                  CBP as a prerequisite to the agency
                                            well aware of the potential for fraud.                     CBP Response: CBP agrees as this                   detaining goods it suspects bear a
                                            CBP has developed expertise in                          requirement is mandated by 19 U.S.C.                  counterfeit version of the mark and
                                            determining the admissibility of goods                  1499(c)(2)(B).                                        disclosing information (or samples or
                                            presented for entry and routinely                          Comment: One commenter, citing                     photographs/images) to the mark owner
                                            considers the veracity and authenticity                 language from the interim rule’s                      under § 133.21(b) of the interim
                                            of information and documents that                       preamble, recommended that CBP                        regulation. CBP believes that this long-
                                            importers (and others) present to CBP.                  amend the interim regulation to
                                               Comment: One commenter                                                                                     standing requirement is warranted and
                                                                                                    explicitly state that goods will be                   will continue to impose it. Without it,
                                            recommended that CBP include a                          detained only when CBP ‘‘reasonably
                                            mechanism under the interim                                                                                   CBP would lack information needed to
                                                                                                    suspects’’ that they bear counterfeit
                                            regulation’s procedure by which mark                                                                          enforce the prohibition against
                                                                                                    marks.
                                            owners may object to a determination by                    CBP Response: CBP believes that it is              counterfeit marks, and the process
                                            CBP that a suspected counterfeit mark is                unnecessary to codify in the regulations              would become more complex and
                                            not counterfeit, after the mark owner                   factors, elements, and/or circumstances               significantly less workable.
                                            receives either limited importation                     it must consider, on a case-by-case                     Comment: Several commenters stated
                                            information or section (b)(1) information               basis, in determining whether goods are               that the interim regulation does not
                                            from CBP.                                               subject to detention for a determination              provide an objective standard for
                                               CBP Response: As stated in CBP Dec.                  of violation of the intellectual property             establishing the genuine nature of marks
                                            12–10 and noted above, the objective of                 laws.                                                 appearing on imported goods. These
                                            this rulemaking is to facilitate CBP’s                     Comment: A commenter                               commenters recommended that CBP
                                            solicitation of information from both                   recommended that CBP define the                       amend the interim regulation to include
                                            mark owners and importers to better                     ‘‘good cause’’ an importer must show                  examples of the kind of information it
                                            enable CBP to determine a good’s                        under the interim regulation to justify               will accept as tending to prove that
                                            admissibility while safeguarding, to the                an importer’s request for a 30-day                    marks are genuine.
                                            greatest extent possible, information                   extension of the detention period.
                                            that is protected by the Trade Secrets                     CBP Response: CBP no longer believes                 CBP Response: CBP believes that it is
                                            Act. The mark owner receives more than                  that such a 30-day extension is                       unnecessary to amend the regulation, as
                                            limited importation information in that                 warranted and has eliminated it in this               CBP will consider any document or
                                            the right holder is provided with an                    final rule. In the past, extensions were              information that is relevant to the
                                            unredacted sample or digital images                     granted to provide time to determine                  question of the authenticity of the mark.
                                            containing information appearing on the                 admissibility. CBP is confident that with             Inevitably, some documents or
                                            suspect article. The disclosure of this                 the assistance and input of the right                 information submitted to CBP by an
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                                            information allows the right holder to                  holder, admissibility determinations can              importer or a mark owner will be less
                                            provide CBP with the information                        be made within the 30-day period.                     persuasive or probative. These decisions
                                            necessary for making a determination                       Comment: One commenter stated that                 are case-specific and depend on the
                                            relative to the suspect mark and for                    the interim regulation simply codifies in             circumstances involved. In this context,
                                            determining whether the article bears a                 the regulations what, prior to the                    CBP finds little benefit to limiting the
                                            counterfeit mark.                                       promulgation of the interim rule, had                 kinds of information it will consider.


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                                                             Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations                                      56375

                                            2. Comments Concerning the Release of                   accordance with its discretionary                     § 133.21(b)(2)(i). See § 133.21(c). CBP
                                            Information                                             release authority under the same section              will weigh the facts and circumstances
                                               Comment: One commenter                               of the interim regulation.                            before releasing section (b)(1)
                                                                                                       Comment: Several commenters                        information (prior to seizure). CBP
                                            recommended that prior to CBP’s
                                                                                                    recommended that CBP amend the                        therefore does not agree with the
                                            disclosure of section (b)(1) information
                                                                                                    interim regulation to allow disclosure to             commenters’ recommendation to require
                                            to the mark owner, the agency should
                                                                                                    another person in place of the mark                   the pre-seizure release of section (b)(1)
                                            provide the information to the importer
                                                                                                    owner, where there is an arrangement                  information to the mark owner in every
                                            for its consideration of the accuracy and
                                                                                                    between the other person and the mark                 case. CBP believes that the interim
                                            veracity of that information. Several
                                                                                                    owner, such as an assignment, a license,              regulation’s procedure protects
                                            commenters recommended that CBP
                                                                                                    or other agreement. Such other persons                importers’ interests in the
                                            allow importers to obtain samples of
                                                                                                    may be in a better position to assist CBP             confidentiality of their commercial and
                                            suspect goods to assist them in
                                                                                                    in identifying goods bearing counterfeit              supply chain information while, at the
                                            responding to CBP’s request for                         marks.                                                same time, facilitating CBP’s trademark
                                            information regarding the goods. Some                      CBP Response: CBP discloses such                   enforcement at the border.
                                            of these latter commenters also                         information to the person designated by                  Comment: One commenter
                                            recommended that importers be                           the mark owner during the recordation                 recommended that CBP clarify that
                                            permitted to receive samples of seized                  process as the contact for enforcement                release of information is only authorized
                                            goods to enable them to respond to                      of the mark (see §§ 133.1 through 133.7               after detention, rather than at any time
                                            seizure and/or penalty notices.                         of this part). However, due to the                    after importation.
                                               CBP Response: Inasmuch as an                         administrative difficulty in determining                 CBP Response: Although this
                                            importer may not have complete                          which additional persons may be                       comment is accurate regarding release of
                                            information about the marks appearing                   entitled to receive such information,                 section (b)(1) information to the mark
                                            on imported goods and/or their retail                   CBP is not amending the regulations in                owner under the interim regulation, this
                                            packaging, CBP finds merit in releasing                 this regard.                                          final rule amends § 133.21(b)(4), as
                                            this information to importers and is                       Comment: Several commenters                        explained above, to reflect that CBP may
                                            amending the interim regulation (see                    recommended that CBP limit the                        release limited importation information
                                            new § 133.21(d)) to provide release of an               circumstances in which unredacted                     to the mark owner prior to issuance of
                                            unredacted sample/packaging/image to                    samples are released to mark owners by                a notice of detention to the importer and
                                            the importer any time after presentation                first releasing a redacted sample to the              will release such information to the
                                            of the goods for examination. CBP                       mark owner. An unredacted sample can                  mark owner upon issuance of the notice
                                            believes that releasing this information                then be released when the redacted                    of detention or as soon as possible after
                                            to importers will assist them in                        sample proves insufficient for the mark               its issuance. This latter change removes
                                            providing CBP with a meaningful                         owner to assist CBP in determining                    the 30-business day window specified
                                            response before or within the seven                     whether the goods bear a counterfeit                  in the interim regulation and mandates
                                            business day response period. Under                     mark.                                                 that CBP will release this information,
                                            this amended provision, if an importer                     CBP Response: CBP believes that the                when available, contemporaneously
                                            does not identify a need for a sample                   interim regulation adequately                         with issuance of the detention notice to
                                            until after CBP seizes goods as bearing                 safeguards importers’ interests and that              the importer.
                                            counterfeit marks the importer may                      it would be counter-productive and                       Comment: Some commenters
                                            request a sample at that time.                          unduly burdensome administratively to                 recommended that the interim
                                               Comment: Several commenters                          impose additional procedural steps                    regulation be amended to permit CBP to
                                            recommended that the interim                            before releasing an unredacted sample                 disclose unredacted samples to the
                                            regulation’s procedure for issuing a                    to the mark owner. The result would be                owner of the mark at any time after
                                            notice of detention to the importer be                  more instances where resolution of the                goods are presented for entry, without
                                            expanded to provide, simultaneously                     matter would require all or nearly all of             the seven business day response period.
                                            rather than within 30 business days of                  the 30-day detention period, which is                 Some commenters recommended that
                                            detention, the notice of the detention                  contrary to CBP’s goal to quickly resolve             this response period be eliminated,
                                            and limited importation information to                  issues of admissibility so as to either               observing that applicable law does not
                                            the mark owner. This would eliminate                    enable lawful trade or to prevent                     require a role for the importer in the
                                            unnecessary delay.                                      violative goods from entering the                     authentication process.
                                               CBP Response: CBP finds merit in this                commerce of the United States.                           CBP Response: CBP believes that the
                                            recommendation and is amending                             Comment: Several commenters                        regulation strikes the appropriate
                                            § 133.21(b) of the interim regulation                   recommended that CBP make the                         balance between protecting importers’
                                            accordingly. The amended provision                      interim regulation’s disclosure                       commercial information and allowing
                                            will no longer provide that CBP has 30                  provision mandatory rather than                       mark owners to assist CBP in enforcing
                                            business days from the date of detention                permissive, requiring CBP, in every                   prohibitions against counterfeit goods.
                                            to release limited importation                          case, to disclose section (b)(1)                      Section 1499(a)(5) within 19 U.S.C.
                                            information to the mark owner; if                       information, including unredacted                     specifies the manner in which an
                                            available, such information will be                     samples.                                              importer may provide information to
                                            released upon issuance of the detention                    CBP Response: The interim regulation               CBP when information is required for
                                            notice to the importer (or as soon as                   permits CBP to disclose to mark owners,               the release of goods. Accordingly,
                                            possible thereafter if not immediately                  prior to seizure, section (b)(1)                      importers have a statutorily prescribed
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                                            available). This simultaneous notice and                information (including an unredacted                  role in establishing the admissibility of
                                            release of limited importation                          sample) when CBP finds that obtaining                 their goods. At any time after goods are
                                            information provision will apply in                     a mark owner’s assistance regarding the               presented for examination, CBP may
                                            those instances where CBP has not                       authenticity of a mark is warranted,                  solicit and receive information from the
                                            already released limited importation                    subject to the notice and seven business              importer that may enable CBP to
                                            information to the mark owner in                        day response period set forth in                      expeditiously release the goods. In cases


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                                            where information is not provided                       seven business day response period will                 Comment: Several commenters stated
                                            within five days or the information                     impair a mark owner’s ability to assist               that the interim regulation’s seven
                                            received is insufficient to enable CBP to               CBP in its efforts to curtail importation             business day response period is too
                                            release the goods, pursuant to 19 U.S.C.                of restricted parallel imports or to assist           short, inasmuch as it may not provide
                                            1499, CBP may detain the goods to                       CBP in identifying counterfeit goods                  enough time for an importer to provide
                                            enable CBP to determine their                           that are commingled with unrestricted                 information sufficient to establish to
                                            admissibility. Should CBP require                       gray market goods.                                    CBP’s satisfaction that detained goods
                                            assistance from a mark owner to                            CBP Response: The interim regulation               bear genuine marks.
                                            determine admissibility of the goods, it                did not change the way CBP enforces                     CBP Response: CBP disagrees.
                                            may seek assistance at various stages of                restrictions on gray market goods. The                Although CBP may release section (b)(1)
                                            the detention and may disclose section                  seven business day response period                    information to the mark owner after the
                                            (b)(1) information, if necessary, after the             neither impairs the mark owner’s ability              seven business day response period, the
                                            seven business day response period.                     to make information available to CBP                  importer has the option of submitting
                                            Under 19 U.S.C. 1499, if CBP does not                   nor increases the risk of counterfeit                 information to CBP up to the end of the
                                            make a final determination regarding                    goods being admitted. Unless CBP                      detention period or until CBP
                                            the admissibility of the goods within 30                determined the goods are admissible,                  determines that the goods bear
                                            days of presentation of the merchandise                 they are deemed excluded by operation                 counterfeit marks. CBP believes that this
                                            for examination, its failure to make such               of law. CBP is aware of the potential for             time frame is adequate to protect
                                            a determination is treated as a decision                these types of shipments and has                      importers’ interests.
                                            to exclude the merchandise for purposes                 developed expertise in identifying such
                                                                                                                                                          E. Comments Concerning Information
                                            of 19 U.S.C. 1514(a)(4). CBP believes                   activity.
                                                                                                       Comment: Some commenters stated                    Released
                                            that the above process allows the mark
                                            owner adequate time to provide                          that the interim regulation’s seven                      Comment: Several commenters
                                            information to CBP when CBP requests                    business day response period makes the                objected to the disclosure of information
                                            such information while protecting                       process for authenticating marks unduly               provided in § 133.21(b)(2) of the interim
                                            importers’ commercial information.                      burdensome and that officers charged                  regulation whereby CBP may disclose to
                                              Comment: One commenter suggested                      with enforcing the intellectual property              the mark owner, prior to CBP’s seizure
                                            that CBP amend the interim regulation                   laws may therefore be deterred from                   of the goods as bearing counterfeit
                                            to require the importer to provide to the               taking action.                                        marks, the quantity and description of
                                            mark owner any information it submits                      CBP Response: CBP believes that the                merchandise involved in a suspect
                                            to CBP within the seven business day                    interim regulation’s procedure will                   shipment.
                                            response period. Another commenter                      assist CBP officers in making                            CBP Response: CBP can disclose the
                                            suggested that CBP provide to the mark                  determinations regarding counterfeit                  quantity and description of merchandise
                                            owner a non-proprietary version of the                  marks and is similar to various other                 at any time after merchandise is
                                            information the importer provided to                    provisions in the CBP regulations that                presented for examination as CBP does
                                            CBP.                                                    require CBP to issue notice to an                     not consider this information to be
                                              CBP Response: It is CBP’s role to                     importer or other party of actions it is              protected by the Trade Secrets Act. CBP
                                            determine whether, in light of the                      undertaking and/or receive information                articulated this position in T.D. 98–21,
                                            relevant laws and regulations, goods                    from an importer or other party before                published in the Federal Register (63
                                            that are presented for examination are                  taking action. CBP is also confident that             FR 11996) on March 12, 1998. Nothing
                                            admissible. The interim regulation                      its officers will discharge their sworn               in the comments has persuaded CBP to
                                            simply facilitates CBP’s solicitation of                duties efficiently, responsibly, and                  change its view.
                                            information from both mark owners and                   professionally at all times.                             Comment: Several commenters
                                            importers to better enable CBP to                          Comment: Some commenters stated                    contended that the interim regulation is
                                            determine a good’s admissibility while                  that the interim regulation’s seven                   unclear as to the meaning of ‘‘quantity’’
                                            safeguarding as much as possible                        business day response period will result              and the manner by which CBP will
                                            information that is protected by the                    in the delayed release of legitimate                  provide the mark owner with a
                                            Trade Secrets Act.                                      goods. Several other commenters                       description of merchandise ‘‘from the
                                                                                                    specified that the seven business day                 entry.’’
                                            3. Other Comments Concerning the                        response period is too long and may                      CBP Response: CBP agrees that these
                                            Seven Business Day Response Period                      result in the mark owner receiving                    provisions require more clarity.
                                               Comment: Several commenters                          information to determine authenticity of              Accordingly, CBP is amending the
                                            recommended that CBP exempt certain                     the mark(s) with as little as 11 days left            regulation to provide that the quantity
                                            industries from the interim regulation’s                in the 30-day detention period. These                 of merchandise involved in the
                                            seven business day response period,                     commenters contended that this is not                 detention and the description of
                                            contending that some industries have                    enough time for mark owners to provide                detained merchandise will be drawn
                                            special needs requiring information                     meaningful information and is                         from CBP arrival or entry documents or
                                            sharing with the mark owner, without                    prejudicial to mark owners’ interests.                their electronic equivalents, which
                                            delay, in every case.                                      CBP Response: CBP believes that, in                could include, but will not be limited
                                               CBP Response: CBP believes that the                  the interest of due process, the seven                to, the CBP Form 3461, the CBP Form
                                            interim regulation’s procedure will                     business day response period is                       7533, the CBP Form 7512 (if the
                                            operate effectively across all industries               appropriate and that the regulation                   detention is for merchandise moving in-
                                            and sectors. Should CBP recognize a                     provides adequate time for both                       bond), the cargo manifest (if no entry
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                                            need to address a specific industry’s                   importers and mark owners to respond                  has yet been filed), or any other
                                            circumstances in the future, CBP will                   and does not prejudice their interests.               document or information, as applicable.
                                            consider amending the regulation at that                CBP further notes that if CBP fails to                   Comment: One commenter requested
                                            time.                                                   make a determination within the 30-day                that CBP reconsider the scope of
                                               Comment: One commenter expressed                     detention period the merchandise is                   information that it redacts when
                                            concern that the interim regulation’s                   excluded by operation of law.                         providing samples or photographs/


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                                                             Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations                                        56377

                                            images to a mark owner under                               Comment: One commenter                             introductory text and paragraphs (b)(1),
                                            § 133.21(b)(3) of the interim regulation.               recommended that CBP amend the                        (b)(2), and (b)(3) as newly redesignated
                                            The commenter observed that                             interim regulation to require the                     paragraphs (b)(1) through (b)(5). Within
                                            determining whether suspect goods bear                  retention of seized counterfeit goods for             § 133.21(b):
                                            counterfeit marks may require a mark                    at least 60 days after CBP has provided                  • Paragraph (b)(1) restates the 30-day
                                            owner to review information such as                     the mark owner with formal notice of                  detention period provided for in
                                            product codes, packaging, and SKUs                      the seizure. The commenter stated that                1499(c).
                                            and that disclosing these marks and                     CBP often disposes of the goods before                   • Paragraph (b)(2)(i) specifies that a
                                            numbers does not violate the Trade                      notice is given, depriving mark owners                notice of detention is issued to the
                                            Secrets Act as they may not necessarily                 of the opportunity to request and obtain              importer pursuant to 19 CFR 151.16(c)
                                            identify the importer.                                  samples.                                              and 19 U.S.C. 1499(c), and that CBP will
                                               CBP Response: CBP believes that in                      CBP Response: The comment                          also inform the importer that certain
                                            order to protect importers’ interests, any              inaccurately reflects CBP’s procedure                 information may already have been
                                            identifying information such as serial                  regarding seizure, forfeiture, and                    disclosed to the owner of the mark, or
                                            numbers, dates of manufacture, lot                      destruction of goods bearing counterfeit              may be disclosed concurrent with the
                                            codes, batch numbers, universal product                 marks. Generally, CBP retains seized                  issuance of the notice of detention, and
                                            codes, the name or address of the                       merchandise for at least 90 days from                 that the importer has seven business
                                            manufacturer, exporter, or importer of                  the date of seizure, through completion               days from the date of the notice of
                                            the merchandise, or any mark that could                 of the forfeiture process, prior to                   detention to present information that
                                            reveal the name or address of the                       destruction of the goods. Section                     establishes, to CBP’s satisfaction, that
                                            manufacturer, exporter, or importer of                  133.21(d) of the interim regulation                   the detained merchandise does not bear
                                            the merchandise, in alphanumeric or                     (redesignated in this final rule as                   a counterfeit mark.
                                            other formats, should be redacted when                  § 133.21(e)) requires CBP to disclose to                 • New paragraph (b)(2)(ii) provides
                                            CBP provides samples, photographs, or                   the mark owner comprehensive                          that where the importer does not
                                            images prior to the running of the seven                importation information, if available,                provide information within the seven
                                            business day response period.                           within 30 business days of the notice of              business day response period, or the
                                                                                                    seizure to the importer.                              information provided is insufficient for
                                               Comment: One commenter stated that
                                                                                                       Comment: Several commenters                        CBP to determine that the merchandise
                                            the interim regulation is deficient in
                                                                                                    recommended that CBP commit to                        does not bear a counterfeit mark, CBP
                                            that it provides for disclosure of only
                                                                                                    rendering determinations on 19 U.S.C.                 may proceed with the disclosure to the
                                            certain limited information appearing
                                                                                                    1618 petitions (challenging the seizure               owner of the mark and will so notify the
                                            on the packaging of suspect
                                                                                                    or forfeiture or both) no later than 30               importer.
                                            merchandise. The commenter
                                                                                                    days after such petitions are filed.                     • Paragraph (b)(3) sets forth the
                                            contended that the mark owner may
                                                                                                       CBP Response: Part 171 of the CBP                  information CBP may disclose to the
                                            need more information to provide
                                                                                                    regulations governs the agency’s                      mark owner (information appearing on
                                            meaningful assistance.
                                                                                                    handling of petitions for remission or                goods and their retail packaging and
                                               CBP Response: CBP disagrees with the                                                                       unredacted samples, photographs/
                                                                                                    mitigation of fines, penalties, and
                                            commenter’s reading of the interim                                                                            images, etc.).
                                                                                                    forfeitures filed pursuant to 19 U.S.C.
                                            regulation. CBP is not limited to                                                                                • Redesignated paragraph (b)(4)
                                                                                                    1618. CBP believes that the
                                            disclosing information appearing only                                                                         (paragraph (b)(2) of the interim
                                                                                                    administrative procedure set forth in its
                                            on the packaging of suspect                                                                                   regulation) is amended to clarify that
                                                                                                    existing regulations is adequate to
                                            merchandise. Once the seven business                                                                          the ‘‘description of the merchandise’’
                                                                                                    protect importers’ interests in matters
                                            day response period has expired                                                                               and the ‘‘quantity involved’’ that CBP
                                                                                                    involving seized merchandise and that
                                            without resolution of authenticity, CBP                                                                       releases to the mark owner (along with
                                                                                                    an amendment to these regulations is
                                            is authorized to disclose to the mark                                                                         other data) prior to issuance of a
                                                                                                    unnecessary.
                                            owner all information appearing on the                                                                        detention notice is taken from the paper
                                            goods as well as all information                        Conclusion and List of Changes                        or electronic equivalent of CBP Forms
                                            appearing on their retail packaging. The                   Based on the foregoing analysis of the             3461, 7533, 7512, cargo manifest,
                                            NDAA specifically authorizes CBP to                     comments and CBP’s further                            advance electronic information, or other
                                            disclose certain information to a mark                  consideration of the matter, CBP is                   entry document as appropriate. After
                                            owner, including unredacted samples                     adopting the interim amendments to the                issuance of a detention notice, this
                                            and photographs/images of suspect                       CBP regulations published in the                      information is taken from the notice of
                                            merchandise (and its retail packaging).                 Federal Register (77 FR 24375) on April               detention. CBP will release the
                                            The interim rule is consistent with that                24, 2012 as final with the exception of               information at the same time it issues
                                            grant of authority.                                     the amendments to §§ 133.21 and                       the detention notice to the importer, or
                                            F. Comments Concerning Post-Seizure                     151.16 which are being adopted as final               as soon afterward as possible.
                                                                                                    with the following modifications:                        • Paragraph (b)(5) provides for release
                                              Comment: Several commenters                              CBP is amending § 133.21 to enhance                of redacted photographs/images and
                                            recommend that CBP make the interim                     its readability and to reflect the                    samples to the mark owner.
                                            rule’s post-seizure disclosure provision                clarifications, amendments and                           3. In § 133.21(c), pertaining to release
                                            mandatory rather than discretionary,                    organizational changes discussed above.               of unredacted photographs, images and
                                            requiring CBP, in every case, to provide                Specifically:                                         samples to the mark owner under
                                            unredacted photographs/images or                           1. CBP is amending § 133.21(b) by                  paragraph (b), CBP is:
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                                            samples of the goods seized to the mark                 eliminating the optional 30-day                          • Clarifying the heading text to state
                                            owner.                                                  extension of the detention period as                  that the provision pertains to conditions
                                              CBP Response: CBP does not believe                    CBP now believes that such an                         associated with the disclosure.
                                            that post-seizure disclosure to mark                    extension is unnecessary.                                • Adding language to provide that,
                                            owners needs to be made mandatory                          2. CBP is reorganizing the text of                 with the release of the information or
                                            through regulations.                                    § 133.21(b) by redesignating the existing             the photographs, images or samples,


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                                            56378            Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations

                                            CBP will notify the mark owner that                     Executive Orders 13563 and 12866                          By sharing unredacted samples of
                                            some or all of the information it is                       Executive Orders 13563 and 12866                    imports with mark owners, however,
                                            receiving may be subject to the                         direct agencies to assess costs and                    mark owners may gain access to some
                                            protections of the Trade Secrets Act,                   benefits of available regulatory                       sensitive information about the
                                            and is only being provided to the mark                  alternatives and, if regulation is                     importer, such as its supply chain and
                                            owner to assist CBP in determining                      necessary, to select regulatory                        purchase price. To mitigate the potential
                                            whether the merchandise described in                    approaches that maximize net benefits                  unnecessary release of an importer’s
                                            the notice of detention bears counterfeit               (including potential economic,                         trade secrets to a mark owner, the
                                            marks.                                                  environmental, public health and safety                interim final rule established a
                                               • Reorganizing the provision into two                effects, distributive impacts, and                     procedure to allow an importer seven
                                            sub-paragraphs to enhance readability.                  equity). Executive Order 13563                         business days to demonstrate to CBP
                                               4. Sections 133.21(b)(5), (c)(2),and (f),                                                                   that suspect marks are not violative. If
                                                                                                    emphasizes the importance of
                                            relating to the terms of the IPR sample                 quantifying both costs and benefits, of                the importer is unable to do so, CBP
                                            bond, are amended to clarify that the                   reducing costs, of harmonizing rules,                  may seek assistance from the mark
                                            IPR sample bond is posted to indemnify                  and of promoting flexibility. This rule                owner by releasing unredacted samples
                                            the importer or owner of the sample                     has been designated a ‘‘significant                    of the import(s) in question. As
                                            against any loss or damage resulting                    regulatory action’’ although not                       discussed earlier, during the comment
                                            from the furnishing of the sample by                    economically significant, under section                period for the interim final rule CBP
                                            CBP to the owner of the mark.                           3(f) of Executive Order 12866.                         received comments regarding the
                                               5. CBP is adding a new paragraph (d)                                                                        possible misuse of trade secret
                                                                                                    Accordingly, the rule has been reviewed
                                            to § 133.21 to provide for release of                   by the Office of Management and                        information by mark owners when
                                            unredacted samples to the importer any                  Budget.                                                viewing unredacted samples. In order to
                                            time after presentation of the suspect                                                                         address such misuses, and thus any
                                            goods to CBP for examination.                           Regulatory Flexibility Act                             potential business impacts to the
                                               6. Existing § 133.21(d), pertaining to                  The Regulatory Flexibility Act (5                   importation of legitimate trade, CBP is
                                            the seizure of goods and disclosure of                  U.S.C. 601 et seq.), as amended by the                 amending the interim regulation to
                                            comprehensive importation information                   Small Business Regulatory Enforcement                  provide that the disclosure to the mark
                                            to the mark owner, is re-designated as                  and Fairness Act of 1996, requires                     owner must include a statement
                                            paragraph (e) in this final rule and                    agencies to assess the impact of                       informing the mark owner that some or
                                            clarified to reflect that the ‘‘description’’           regulations on small entities. A small                 all of the information being disclosed
                                            and the ‘‘quantity’’ of the merchandise                 entity may be a small business (defined                may be information protected from
                                            provided to the mark owner by CBP is                    as any independently owned and                         disclosure by the Trade Secrets Act (18
                                            taken from the notice of seizure (and                   operated business not dominant in its                  U.S.C. 1905).
                                            intent to forfeit).                                     field that qualifies as a small business                  As described in the ‘‘Paperwork
                                               7. Existing § 133.21(e), pertaining to               per the Small Business Act); a small not-              Reduction Act’’ section of this
                                            photographs/images and samples being                    for-profit organization; or a small                    document, CBP estimates that it takes an
                                            made available to the mark owner after                  governmental jurisdiction (locality with               importer two hours to provide proof to
                                            seizure, is re-designated as paragraph (f)              fewer than 50,000 people).                             CBP that establishes that suspect goods
                                            in this final rule.                                        One of CBP’s primary roles is to                    do not bear counterfeit marks. CBP
                                               8. Existing § 133.21(f), pertaining to               safeguard the U.S. economy from the                    estimates the average wage of an
                                            consent of the mark owner, is re-                       importation of counterfeit goods. Prior                importer to be $28.50 per hour. Thus,
                                            designated as paragraph (g) in this final               to the publication of the interim final                CBP estimates it will cost a small entity
                                            rule.                                                   rule, if CBP needed assistance in                      $57.00 to demonstrate that its import
                                               This document amends the specific                    determining whether an import bears                    does not bear counterfeit marks. CBP
                                            authority citation for §§ 133.21 through                counterfeit marks, the agency was                      does not believe $57.00 constitutes a
                                            133.25 to reflect 10 U.S.C. 2302.                       restricted to only sharing redacted                    significant economic impact. CBP does
                                               Lastly, this final rule amends                       samples of the import in question with                 recognize, however, that such repeated
                                            § 151.16(a) by removing the reference to                a right holder. However, due to the                    inquiries could eventually rise to the
                                            ‘‘imports of articles bearing counterfeit               highly technical nature of some imports                level of a significant economic impact.
                                            marks or suspected counterfeit marks.’’                 and the continuously increasing                        CBP lacks data on how often a particular
                                               CBP is adopting as final, with the                                                                          importer would be affected by this
                                                                                                    sophistication of counterfeiters, sharing
                                            clarifications and amendments                                                                                  regulation. CBP subject matter experts,
                                                                                                    redacted samples with right holders is
                                            discussed above, the interim                                                                                   however, are unaware of any instances
                                                                                                    no longer sufficient in certain
                                            amendments set forth in CBP Dec. 12–                                                                           where a particular importer was
                                                                                                    circumstances. To broaden CBP’s ability
                                            10 that went into effect on April 24,                                                                          repeatedly requested to provide
                                                                                                    to identify counterfeit goods, Congress
                                            2012. The additional changes made to                                                                           information to CBP for the purpose of
                                                                                                    included a provision to the National
                                            the interim regulation in this final rule                                                                      establishing that an import does not
                                                                                                    Defense Authorization Act for Fiscal
                                            include non-substantive editorial                                                                              bear counterfeit marks. Additionally,
                                                                                                    Year 2012 (NDAA) (Public Law 112–81,
                                            changes that improve readability, as                                                                           based on CBP’s experience over the
                                                                                                    10 U.S.C. 2303) that allows CBP to share
                                            well as logical-outgrowth changes to the                                                                       years (including in implementing the
                                                                                                    unredacted samples of imports
                                            interim regulation’s provisions, as                                                                            interim rule), CBP anticipates that law-
                                                                                                    suspected of bearing counterfeit marks
                                            described above. In an effort to provide                                                                       abiding importers will not be subject to
                                                                                                    with the right holders of the trademarks
                                            the trade, if necessary, with the                                                                              the provisions in this rule on a repeated
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                                                                                                    in question in order to aid CBP in
                                            opportunity to make adjustments to                                                                             basis. Further, we note that providing
                                                                                                    determining whether the suspect goods
                                            their business practices, CBP has                                                                              this information to CBP is optional on
                                                                                                    are violative.1
                                            determined to delay the effective date of                                                                      the part of the importer. CBP did not
                                            this final rule for a period of 30 days                   1 Note that this rule does not alter CBP’s ability
                                            from the date of publication of this                    to provide redacted photographs/images, samples,       merchandise to the right holder of the trademark
                                            document in the Federal Register.                       or retail packaging (including labels) of suspect      without prior notification to the importer.



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                                                             Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations                                        56379

                                            receive any comments on the interim                     List of Subjects                                      excluded for the purposes of 19 U.S.C.
                                            final rule regarding the cost to importers                                                                    1514(a)(4).
                                                                                                    19 CFR Part 133                                          (2) Notice of detention to importer
                                            of providing proof to CBP that
                                            establishes that suspect goods do not                     Copying or simulating trademarks,                   and disclosure to owner of the mark—
                                            bear counterfeit marks. Due to the harm                 Copyrights, Counterfeit trademarks,                   (i) Notice and seven business day
                                            that counterfeit goods pose to public                   Customs duties and inspection,                        response period. Within five business
                                            health and safety, this rule went into                  Detentions, Reporting and                             days from the date of a decision to
                                            effect as an interim final rule on the date             recordkeeping requirements, Restricted                detain suspect merchandise, CBP will
                                            of its publication on April 24, 2012. As                merchandise, Seizures and forfeitures,                notify the importer in writing of the
                                            discussed earlier, CBP lacks data on                    Trademarks, Trade names.                              detention as set forth in § 151.16(c) of
                                            how many importers have been affected                                                                         this chapter and 19 U.S.C. 1499. CBP
                                                                                                    19 CFR Part 151                                       will also inform the importer that for
                                            by the interim rule, and on how often
                                            any particular importer has been                          Customs duties and inspection,                      purposes of assisting CBP in
                                            affected. As a general matter, any                      Examination, Imports, Penalties,                      determining whether the detained
                                            importer may be affected by this rule,                  Reporting and recordkeeping                           merchandise bears counterfeit marks:
                                            and that is because the rule will be                    requirements, Sampling and testing.                      (A) CBP may have previously
                                            applied when CBP cannot make a                                                                                disclosed to the owner of the mark,
                                                                                                    Amendments to the CBP Regulations                     prior to issuance of the notice of
                                            determination—without the use of these
                                            regulatory provisions—as to whether an                    Accordingly, the interim rule                       detention, limited importation
                                            import(s) bears a counterfeit mark.                     amending parts 133 and 151 of title 19                information concerning the detained
                                            Because this rule could be applied to                   of the Code of Federal Regulations (19                merchandise, as described in paragraph
                                            any importer, CBP believes that this rule               CFR parts 133 and 151), which was                     (b)(4) of this section, and, in any event,
                                            will potentially have an effect on a                    published at 77 FR 24375 on April 24,                 such information will be released to the
                                            substantial number of small entities.                   2012, is adopted as final with the                    owner of the mark, if available, no later
                                                                                                    following changes:                                    than the date of issuance of the notice
                                               While this rule will potentially have                                                                      of detention; and
                                            an effect on a substantial number of                    PART 133—TRADEMARKS, TRADE                               (B) CBP may disclose to the owner of
                                            small entities, CBP does not believe that               NAMES, AND COPYRIGHTS                                 the mark information that appears on
                                            an estimated cost to an importer of                                                                           the detained merchandise and/or its
                                            $57.00 per affected import constitutes a                ■ 1. The general authority citation for               retail packaging, including unredacted
                                            significant economic impact (also, as                   part 133 continues, and the specific                  photographs, images, or samples, as
                                            discussed above, providing this                         authority citation for §§ 133.21 through              described in paragraph (b)(3) of this
                                            information to CBP is optional on the                   133.25 is added, to read as follows:                  section, unless the importer presents
                                            part of the importer). Thus, CBP certifies                Authority: 15 U.S.C. 1124, 1125, 1127; 17           information within seven business days
                                            this regulation will not have a                         U.S.C. 101, 601, 602, 603; 19 U.S.C. 66, 1202,        of the notification establishing that the
                                            significant economic impact on a                        1499, 1526, 1624; 31 U.S.C. 9701. Sections            detained merchandise does not bear a
                                            substantial number of small entities.                   133.21 through 133.25 also issued under 18            counterfeit mark.
                                                                                                    U.S.C. 1905; Sec. 818(g), Pub. L. 112–81 (10             (ii) Failure of importer to respond or
                                            Paperwork Reduction Act                                 U.S.C. 2302);                                         insufficient response to notice. Where
                                               In accordance with the Paperwork                     ■ 2. In § 133.21:                                     the importer does not provide
                                            Reduction Act of 1995 (44 U.S.C. 3507),                 ■ a. Paragraphs (b) and (c) are revised;              information within the seven business
                                            the collections of information for this                 ■ b. Paragraphs (d), (e), and (f) are                 day response period, or the information
                                            document are included in an existing                    redesignated as paragraphs (e), (f), and              provided is insufficient for CBP to
                                            collection for Notices of Detention                     (g);                                                  determine that the merchandise does
                                            (OMB control number 1651–0073). An                      ■ c. A new paragraph (d) is added; and                not bear a counterfeit mark, CBP may
                                            agency may not conduct, and a person                    ■ d. Redesignated paragraphs (e) and (f)              proceed with the disclosure of
                                            is not required to respond to, a                        are revised.                                          information described in paragraph
                                            collection of information unless the                       The revisions and addition read as                 (b)(3) of this section to the owner of the
                                            collection of information displays a                    follows:                                              mark and will so notify the importer.
                                            valid control number assigned by OMB.                                                                            (3) Disclosure to owner of the mark of
                                                                                                    § 133.21 Articles suspected of bearing                information appearing on detained
                                               The burden hours related to the                      counterfeit marks.                                    merchandise and/or its retail packaging,
                                            Notice of Detention for OMB control
                                                                                                    *      *    *     *     *                             including unredacted photographs,
                                            number 1651–0073 are as follows:
                                                                                                       (b) Detention, notice, and disclosure              images or samples. When making a
                                               Number of Respondents: 1,350.                        of information—(1) Detention period.                  disclosure to the owner of the mark
                                               Number of Responses: 1,350.                          CBP may detain any article of domestic                under paragraph (b)(2)(ii) of this section,
                                               Time per Response: 2 hours.                          or foreign manufacture imported into                  CBP may disclose information
                                                                                                    the United States that bears a mark                   appearing on the merchandise and/or its
                                               Total Annual Burden Hours: 2,700.                    suspected by CBP of being a counterfeit               retail packaging (including labels),
                                               There is no change in burden hours                   version of a mark that is registered with             images (including photographs) of the
                                            under this collection with this rule.                   the U.S. Patent and Trademark Office                  merchandise and/or its retail packaging
                                            Signing Authority                                       and is recorded with CBP pursuant to                  in its condition as presented for
                                                                                                    subpart A of this part. The detention                 examination (i.e., an unredacted
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                                              This rulemaking is being issued in                    will be for a period of up to 30 days                 condition), or a sample of the
                                            accordance with 19 CFR 0.1(a)(1),                       from the date on which the merchandise                merchandise and/or its retail packaging
                                            pertaining to the authority of the                      is presented for examination. In                      in its condition as presented for
                                            Secretary of the Treasury (or that of his               accordance with 19 U.S.C. 1499(c), if,                examination. The release of a sample
                                            or her delegate) to approve regulations                 after the detention period, the article is            will be in accordance with, and subject
                                            concerning trademark enforcement.                       not released, the article will be deemed              to, the bond and return requirements of


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                                            56380            Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations

                                            paragraph (c) of this section. The                      includes, but is not limited to, serial               paragraphs (b)(2)(ii) and (3) of this
                                            disclosure may include any serial                       numbers, dates of manufacture, lot                    section when the owner furnishes to
                                            numbers, dates of manufacture, lot                      codes, batch numbers, universal product               CBP a bond in the form and amount
                                            codes, batch numbers, universal product                 codes, the name or address of the                     specified by CBP, conditioned to
                                            codes, or other identifying marks                       manufacturer, exporter, or importer of                indemnify the importer or owner of the
                                            appearing on the merchandise or its                     the merchandise, or any mark that could               imported article against any loss or
                                            retail packaging (including labels), in                 reveal the name or address of the                     damage resulting from the furnishing of
                                            alphanumeric or other formats.                          manufacturer, exporter, or importer of                the sample by CBP to the owner of the
                                               (4) Disclosure to owner of the mark of               the merchandise, in alphanumeric or                   mark. CBP may demand the return of
                                            limited importation information. From                   other formats. CBP may release to the                 the sample at any time. The owner of
                                            the time merchandise is presented for                   owner of the mark a sample under this                 the mark must return the sample to CBP
                                            examination, CBP may disclose to the                    paragraph when the owner furnishes to                 upon demand or at the conclusion of
                                            owner of the mark limited importation                   CBP a bond in the form and amount                     any examination, testing, or similar
                                            information in order to obtain assistance               specified by CBP, conditioned to                      procedure performed on the sample. In
                                            in determining whether an imported                      indemnify the importer or owner of the                the event that the sample is damaged,
                                            article bears a counterfeit mark. Where                 imported article against any loss or                  destroyed, or lost while in the
                                            CBP does not disclose this information                  damage resulting from the furnishing of               possession of the owner of the mark, the
                                            to the owner of the mark prior to                       the sample by CBP to the owner of the                 owner must, in lieu of return of the
                                            issuance of the notice of detention, it                 mark. CBP may demand the return of                    sample, certify to CBP that: ‘‘The sample
                                            will do so concurrently with the                        the sample at any time. The owner of                  described as [insert description] and
                                            issuance of the notice of detention,                    the mark must return the sample to CBP                provided pursuant to 19 CFR 133.21(c)
                                            unless the information is unavailable, in               upon demand or at the conclusion of                   was (damaged/destroyed/lost) during
                                            which case CBP will release the                         any examination, testing, or similar                  examination, testing, or other use.’’
                                            information as soon as possible after                   procedure performed on the sample. In                    (d) Disclosure to importer of
                                            issuance of the notice of detention. The                the event that the sample is damaged,                 unredacted photographs, images, and
                                            limited importation information CBP                     destroyed, or lost while in the                       samples. CBP will disclose to the
                                            will disclose to the owner of the mark                  possession of the owner of the mark, the              importer unredacted photographs,
                                            consists of:                                            owner must, in lieu of return of the                  images, or an unredacted sample of
                                               (i) The date of importation;                         sample, certify to CBP that: ‘‘The sample             imported merchandise suspected of
                                               (ii) The port of entry;                              described as [insert description] and
                                               (iii) The description of the                                                                               bearing a counterfeit mark at any time
                                                                                                    provided pursuant to 19 CFR                           after the merchandise is presented to
                                            merchandise, for merchandise not yet                    133.21(b)(5) was (damaged/destroyed/
                                            detained, from the paper or electronic                                                                        CBP for examination. CBP may demand
                                                                                                    lost) during examination, testing, or                 the return of the sample at any time.
                                            equivalent of the entry (as defined in                  other use.’’
                                            § 142.3(a)(1) or (b) of this chapter), the                                                                    The importer must return the sample to
                                                                                                      (c) Conditions of disclosure to owner
                                            CBP Form 7512, cargo manifest,                                                                                CBP upon demand or at the conclusion
                                                                                                    of the mark of information appearing on
                                            advanceelectronic information or other                                                                        of any examination, testing, or similar
                                                                                                    detained merchandise and/or its retail
                                            entry document as appropriate, or, for                                                                        procedure performed on the sample. In
                                                                                                    packaging, including unredacted
                                            detained merchandise, from the notice                                                                         the event that the sample is damaged,
                                                                                                    photographs, images and samples—(1)
                                            of detention;                                                                                                 destroyed, or lost while in the
                                                                                                    Disclosure for limited purpose of
                                               (iv) The quantity, for merchandise not                                                                     possession of the importer, the importer
                                                                                                    assisting CBP in counterfeit mark
                                            yet detained, as declared on the paper                                                                        must, in lieu of return of the sample,
                                                                                                    determinations. In order to obtain
                                            or electronic equivalent of the entry (as                                                                     certify to CBP that: ‘‘The sample
                                                                                                    assistance in determining whether an
                                            defined in § 142.3(a)(1) or (b) of this                                                                       described as [insert description] and
                                                                                                    imported article bears a counterfeit
                                            chapter), the CBP Form 7512, cargo                      mark, CBP may disclose to the owner of                provided pursuant to 19 CFR 133.21(d)
                                            manifest, advance electronic                            the mark, prior to seizure, information               was (damaged/destroyed/lost) during
                                            information, or other entry document as                 appearing on the merchandise and/or its               examination, testing, or other use.’’
                                            appropriate, or, for detained                           retail packaging (including labels),                     (e) Seizure and disclosure to owner of
                                            merchandise, from the notice of                         unredacted photographs or images of                   the mark of comprehensive importation
                                            detention; and                                          the merchandise and/or its retail                     information. Upon a determination by
                                               (v) The country of origin of the                     packaging in its condition as presented               CBP, made any time after the
                                            merchandise.                                            for examination, or an unredacted                     merchandise has been presented for
                                               (5) Disclosure to owner of the mark of               sample of the imported merchandise                    examination, that an article of domestic
                                            redacted photographs, images and                        and/or its retail packaging in its                    or foreign manufacture imported into
                                            samples. Notwithstanding the notice                     condition as presented for examination,               the United States bears a counterfeit
                                            and seven business day response                         in accordance with paragraphs (b)(2)(ii)              mark, CBP will seize such merchandise
                                            procedure of paragraph (b)(2) of this                   and (3) of this section. Upon release of              and, in the absence of the written
                                            section, CBP may, in order to obtain                    such information, photographs, images,                consent of the owner of the mark, forfeit
                                            assistance in determining whether an                    or samples, CBP will notify the owner                 the seized merchandise in accordance
                                            imported article bears a counterfeit                    of the mark that some or all of the                   with the customs laws. When
                                            mark and at any time after presentation                 information being released may be                     merchandise is seized under this
                                            of the merchandise for examination,                     subject to the protections of the Trade               section, CBP will disclose to the owner
                                            provide to the owner of the mark                        Secrets Act, and that CBP is only                     of the mark the following
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                                            photographs, images, or a sample of the                 disclosing the information to the owner               comprehensive importation
                                            suspect merchandise or its retail                       of the mark for the purpose of assisting              information, if available, within 30
                                            packaging (including labels), provided                  CBP in determining whether the                        business days from the date of the
                                            that identifying information has been                   merchandise bears a counterfeit mark.                 notice of the seizure:
                                            removed, obliterated, or otherwise                        (2) Bond. CBP may release to the                       (1) The date of importation;
                                            obscured. Identifying information                       owner of the mark a sample under                         (2) The port of entry;


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                                                             Federal Register / Vol. 80, No. 181 / Friday, September 18, 2015 / Rules and Regulations                                      56381

                                               (3) The description of the                           bearing counterfeit marks or suspected                Monday through Friday, except federal
                                            merchandise from the notice of seizure;                 counterfeit marks,’’.                                 holidays. The telephone number is 202–
                                               (4) The quantity as set forth in the                                                                       366–9329.
                                                                                                    R. Gil Kerlikowske,
                                                                                                                                                            See the ‘‘Public Participation and
                                            notice of seizure;                                      Commissioner, U.S. Customs and Border                 Request for Comments’’ portion of the
                                               (5) The country of origin of the                     Protection.
                                                                                                                                                          SUPPLEMENTARY INFORMATION section
                                            merchandise;                                              Approved: September 15, 2015.                       below for instructions on submitting
                                               (6) The name and address of the                      Timothy E. Skud,                                      comments. To avoid duplication, please
                                            manufacturer;                                           Deputy Assistant Secretary of the Treasury.           use only one of these methods.
                                               (7) The name and address of the
                                                                                                    [FR Doc. 2015–23543 Filed 9–17–15; 8:45 am]           FOR FURTHER INFORMATION CONTACT: If
                                            exporter; and                                           BILLING CODE 9111–14–P                                you have questions on this temporary
                                                                                                                                                          interim rule, call or email Coast Guard
                                               (8) The name and address of the                                                                            Sector Key West Waterways
                                            importer.                                               DEPARTMENT OF HOMELAND                                Management Division; telephone 305–
                                               (f) Disclosure to owner of the mark,                 SECURITY                                              292–8772, email D07-DG-SECKW-
                                            following seizure, of unredacted                                                                              WaterwaysManagement@uscg.mil. If
                                            photographs, images, and samples. At                    Coast Guard                                           you have questions on viewing or
                                            any time following a seizure of                                                                               submitting material to the docket, call
                                            merchandise bearing a counterfeit mark                  33 CFR Part 117                                       Cheryl Collins, Program Manager,
                                            under this section, and upon receipt of                 [Docket No. USCG–2015–0046]                           Docket Operations, telephone 202–366–
                                            a proper request from the owner of the                                                                        9826.
                                                                                                    RIN 1625–AA09                                         SUPPLEMENTARY INFORMATION:
                                            mark, CBP may provide, if available,
                                            photographs, images, or a sample of the                 Drawbridge Operation Regulation;                      Table of Acronyms
                                            seized merchandise and its retail                       Snake Creek, Islamorada, FL
                                            packaging, in its condition as presented                                                                      CFR Code of Federal Regulations
                                            for examination, to the owner of the                    AGENCY:  Coast Guard, DHS.                            DHS Department of Homeland Security
                                                                                                                                                          FR Federal Register
                                            mark. To obtain a sample under this                     ACTION: Temporary interim rule and
                                                                                                                                                          § Section Symbol
                                            paragraph, the owner of the mark must                   request for comments.                                 U.S.C. United States Code
                                            furnish to CBP a bond in the form and
                                            amount specified by CBP, conditioned                    SUMMARY:    The Coast Guard is modifying              A. Public Participation and Request for
                                                                                                    the operating schedule that governs the               Comments
                                            to indemnify the importer or owner of
                                                                                                    Snake Creek Bridge across Snake Creek,
                                            the imported article against any loss or                                                                        We encourage you to participate in
                                                                                                    Islamorada, FL. This temporary interim
                                            damage resulting from the furnishing of                                                                       this rulemaking by submitting
                                                                                                    rule will change the drawbridge
                                            the sample by CBP to the owner of the                                                                         comments and related materials. All
                                                                                                    operation schedule to determine
                                            mark. CBP may demand the return of                                                                            comments received will be posted,
                                                                                                    whether a permanent change to the
                                            the sample at any time. The owner of                                                                          without change, to http://
                                                                                                    schedule is needed. This temporary
                                            the mark must return the sample to CBP                                                                        www.regulations.gov and will include
                                                                                                    interim rule will allow Snake Creek
                                            upon demand or at the conclusion of the                                                                       any personal information you have
                                                                                                    Bridge to open on signal, except that
                                            examination, testing, or other use in                                                                         provided.
                                                                                                    from 8 a.m. to 6 p.m., the draw need
                                            pursuit of a related private civil remedy               open only on the hour. The Bridge                     1. Submitting Comments
                                            for infringement. In the event that the                 owner, Florida Department of
                                            sample is damaged, destroyed, or lost                                                                            If you submit a comment, please
                                                                                                    Transportation, and local officials                   include the docket number for this
                                            while in the possession of the owner of                 requested this action to assist in
                                            the mark, the owner must, in lieu of                                                                          rulemaking (USCG–2015–0046),
                                                                                                    reducing vehicle traffic caused by                    indicate the specific section of this
                                            return of the sample, certify to CBP that:              frequent bridge openings.                             document to which each comment
                                            ‘‘The sample described as [insert                       DATES: This temporary interim rule will               applies, and give the reason for each
                                            description] and provided pursuant to                   be effective from 8 a.m. on September                 suggestion or recommendation. You
                                            19 CFR 133.21(f) was (damaged/                          18, 2015 to 6 p.m. on May 10, 2016.                   may submit your comments and
                                            destroyed/lost) during examination,                        Comments and related material must                 material online, or by fax, mail or hand
                                            testing, or other use.’’                                reach the Coast Guard on or before                    delivery, but please use only one of
                                            *      *     *     *     *                              January 15, 2016. Requests for public                 these means. If you submit a comment
                                                                                                    meetings must be received by the Coast                online via http://www.regulations.gov, it
                                            PART 151—EXAMINATION,                                   Guard on or before November 1, 2015.                  will be considered received by the Coast
                                            SAMPLING, AND TESTING OF                                ADDRESSES: You may submit comments                    Guard when you successfully transmit
                                            MERCHANDISE                                             identified by docket number USCG–                     the comment. If you fax, hand deliver,
                                                                                                    2015–0046 using any one of the                        or mail your comment, it will be
                                            ■ 3. The general authority citation for                 following methods:                                    considered as having been received by
                                            part 151 continues to read as follows:                     (1) Federal eRulemaking Portal:                    the Coast Guard when it is received at
                                              Authority: 19 U.S.C. 66, 1202 (General                http://www.regulations.gov.                           the Docket Management Facility. We
                                            Note 3(i) and (j), Harmonized Tariff Schedule              (2) Fax: 202–493–2251.                             recommend that you include your name
                                            of the United States (HTSUS), 1624;                        (3) Mail or Delivery: Docket                       and a mailing address, an email address,
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                                                                                                    Management Facility (M–30), U.S.                      or a phone number in the body of your
                                            *      *     *       *      *                           Department of Transportation, West                    document so that we can contact you if
                                            § 151.16   [Amended]                                    Building Ground Floor, Room W12–140,                  we have questions regarding your
                                                                                                    1200 New Jersey Avenue SE.,                           submission.
                                            ■ 4. Section 151.16(a) is amended by                    Washington, DC 20590–0001. Deliveries                    To submit your comment online, go to
                                            removing the words, ‘‘imports of articles               accepted between 9 a.m. and 5 p.m.,                   http://www.regulations.gov, type the


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Document Created: 2015-12-15 09:28:07
Document Modified: 2015-12-15 09:28:07
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective on October 19, 2015.
ContactGoli Gharib, Intellectual Property Rights Branch, Regulations and Rulings, Office of International Trade, (202) 325-0216.
FR Citation80 FR 56370 
RIN Number1515-AD87
CFR Citation19 CFR 133
19 CFR 151
CFR AssociatedCopying Or Simulating Trademarks; Copyrights; Counterfeit Trademarks; Customs Duties and Inspection; Detentions; Reporting and Recordkeeping Requirements; Restricted Merchandise; Seizures and Forfeitures; Trademarks; Trade Names; Examination; Imports; Penalties and Sampling and Testing

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