82_FR_59751 82 FR 59511 - Donations of Technology and Related Support Services To Enforce Intellectual Property Rights

82 FR 59511 - Donations of Technology and Related Support Services To Enforce Intellectual Property Rights

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

Federal Register Volume 82, Issue 240 (December 15, 2017)

Page Range59511-59514
FR Document2017-27065

This document amends the U.S. Customs and Border Protection (CBP) regulations relating to the enforcement of intellectual property rights. This final rule implements section 308(d) of the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which requires CBP to prescribe regulatory procedures for the donation of technologies, training, or other related services for the purpose of assisting CBP in intellectual property enforcement.

Federal Register, Volume 82 Issue 240 (Friday, December 15, 2017)
[Federal Register Volume 82, Number 240 (Friday, December 15, 2017)]
[Rules and Regulations]
[Pages 59511-59514]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-27065]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

DEPARTMENT OF THE TREASURY

19 CFR Part 133

[USCBP-2016-0076; CBP Dec. 17-21]
RIN 1515-AE21


Donations of Technology and Related Support Services To Enforce 
Intellectual Property Rights

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

ACTION: Final rule.

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

SUMMARY: This document amends the U.S. Customs and Border Protection 
(CBP) regulations relating to the enforcement of intellectual property 
rights. This final rule implements section 308(d) of the Trade 
Facilitation and Trade Enforcement Act of 2015 (TFTEA), which requires 
CBP to prescribe regulatory procedures for the donation of 
technologies, training, or other related services for the purpose of 
assisting CBP in intellectual property enforcement.

DATES: Effective January 16, 2018.

FOR FURTHER INFORMATION CONTACT: Garrett D. Wright, Chief, Donations 
Acceptance Program, Office of Field Operations, U.S. Customs and Border 
Protection, telephone (202) 344-2344.

SUPPLEMENTARY INFORMATION: 

Background

    The Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), 
Public Law 114-125, 130 Stat. 122 (19 U.S.C. 4301 note), was enacted on 
February 24, 2016, and includes several provisions regarding trade 
facilitation and trade enforcement, some of which deal with improving 
U.S. Customs and Border Protection's (CBP's) intellectual property 
rights (IPR) enforcement at the border. Section 308(d) of the TFTEA 
requires the Commissioner of CBP to prescribe regulations to enable CBP 
to receive donations of hardware, software, equipment, and similar 
technologies, and to accept training and other support services, from 
private sector entities, for the purpose of enforcing IPR.
    Acceptance of such donations must also be consistent with either 
section 482 of the Homeland Security Act of 2002, as amended by section 
2 of the Cross-Border Trade Enhancement Act of 2016 (Pub. L. 114-279), 
or section 507 of the Department of Homeland Security (DHS) 
Appropriations Act of 2004 (Pub. L. 108-90).
    Section 482 of the Homeland Security Act replaced section 559 of 
Title V of Division F of the Consolidated Appropriations Act, 2014 
(Pub. L. 113-76) and permits CBP, in consultation with the General 
Services Administration (GSA), to ``enter into an agreement with any 
entity to accept a donation of personal property, money or nonpersonal 
services'' to be used for certain CBP activities at most ports of entry 
where CBP performs inspection services. Pursuant to section 482(c)(3), 
CBP in consultation with GSA will establish criteria for evaluating 
donation proposals under section 482 and make such criteria publicly 
available.
    If donations cannot be accepted under section 482, they may be 
accepted under section 507 of the DHS Appropriations Act of 2004. 
Section 507 made the DHS Gifts and Donations account ``available to the 
Department of Homeland Security . . . for the Secretary of Homeland 
Security to accept, hold, administer and utilize gifts and bequests, 
including property to facilitate the work of the Department of Homeland 
Security.'' Title V, Public Law 108-90, 117 Stat. 1153-1154. DHS policy 
on the acceptance of gifts pursuant to section 507 is contained in DHS 
Directive 112-02 and DHS Instruction 112-02-001. The Secretary of DHS 
delegated the authority to accept and utilize gifts to the heads of 
certain DHS components, including the Commissioner of CBP, in DHS 
Delegation 0006.
    This document implements section 308(d) of the TFTEA by 
promulgating a new subpart H to part 133 of title 19 of the Code of 
Federal Regulations (CFR) which provides for the receipt and acceptance 
by CBP of donations of hardware, software, equipment, and similar 
technologies, as well as training and related support services, for the 
purpose of assisting CBP in enforcing IPR. New subpart H, as set forth 
in Sec.  133.61, prescribes the methods by which donations of IPR 
technology and related support services may be made. Specifically, 19 
CFR 133.61(a) sets forth the scope of this section and identifies the 
authority to accept donations, Sec.  133.61(b) describes the donation 
process, and Sec.  133.61(c) lays out the elements of the written 
donation agreement.
    On January 17, 2017, CBP published a Notice of Proposed Rulemaking 
(NPRM) in the Federal Register (82 FR 4800) proposing to amend its 
regulations pertaining to the enforcement of intellectual property 
rights in order to enhance CBP's intellectual property rights 
enforcement

[[Page 59512]]

capabilities. The NPRM solicited for public comments on the proposed 
rulemaking. The public comment period closed on March 3, 2017.

Discussion of Comments

    Three commenters responded to the solicitation of comments to the 
proposed rule. A description of the comments received, together with 
CBP's analysis, is set forth below.
    Comment: One commenter, an association dedicated to serving the 
needs of the video game industry, commended CBP's efforts to enhance 
its engagement with intellectual property-intensive industries and 
border enforcement needs, but also voiced several concerns.
    The first concern is related to proposed Sec.  133.61(b). The 
commenter expressed concern with the procedure laid out in paragraph 
(b) because this ``formalized'' process might interrupt the dynamic 
nature of the relationship between CBP and the video game industry in 
providing training, as well as the tools CBP needs in order to 
accurately confirm the illegality of suspected infringing imports.
    CBP Response: CBP seeks to maintain the dynamic relationship it has 
with the video game industry and other industries. The donation process 
that CBP is creating is intended to be streamlined, non-invasive, and 
flexible. For example, in certain circumstances, CBP and the industry 
partner may only need to enter into one written partnership agreement 
whereby any IPR donation proposal made pursuant to that agreement could 
be evaluated and, if viable, accepted at the local level. In addition, 
as explained below, the donation process does not apply to ``sample'' 
products or stand-alone training or educational seminars.
    Comment: The commenter asked for clarification on whether a single 
donation offer, as envisioned by Sec.  133.61(b), would cover a 
quantity or a range of items, or whether a donation offer must be 
submitted for each item contemplated for donation.
    CBP Response: In general, a single donation offer could cover more 
than one item and/or a range of items assuming such items serve a 
similar IPR enforcement purpose. Each donation offer and each item, 
however, will be considered on a case-by-case basis.
    Comment: The commenter also requested clarification on whether a 
single, written donation offer would encompass anticipated intermittent 
donations of samples of infringing products and circumvention devices. 
The commenter explained that current practice allows for video game 
companies to donate hardware, software, samples of infringing products, 
circumvention devices that violate 17 U.S.C. 1201, and training 
materials along with a request that CBP seize like goods using a simple 
transmittal letter to CBP's Office of Trade, Regulations and Rulings, 
IPR Branch. Typically, these donations comprise numerous identical or 
comparable items, such as game copiers, other circumvention devices, or 
memory cards filled with pre-loaded games.
    CBP Response: The process described in the public comment with 
regard to submissions of samples of genuine and infringing articles 
will not be changed with the new regulation. A distinction needs to be 
made between ``donations'' covered under section 308(d) of the TFTEA 
which are provided for the regular use by CBP personnel assisting with 
the enforcement of IPR, such as an x-ray machine or a high 
magnification microscope, and ``samples'' of merchandise provided to 
the IPR Branch for purposes of determining admissibility. The 
furnishing of samples of genuine and infringing articles is not covered 
by the intended scope of the Donations Acceptance Program under Sec.  
133.61. Rights owners, including the video game industry, will be able 
to continue to communicate and provide samples to the IPR Branch and 
field offices as the need for enforcement arises. Accordingly, based on 
this comment, CBP has amended the regulatory text in Sec.  133.61(a) to 
clarify that articles provided to CBP as ``samples,'' as referenced in 
19 CFR 151.10 and 177.2, are not included within the scope of this 
rule.
    Comment: The commenter also seeks clarification on whether the 
proposed donation offer requirements and process would hinder the 
ability of CBP or other DHS personnel, such as those of Immigration and 
Customs Enforcement (ICE), to request hardware or software samples from 
private companies for the purpose of conducting investigations.
    CBP Response: The donation requirements will not hinder the current 
process of cooperation and information-sharing that regularly occurs 
between rights holders and DHS personnel. The regulations are not 
intended to affect the processing of criminal investigations into 
potential IPR violations within other DHS agencies, such as DHS/
Homeland Security Investigations (HSI) under DHS/ICE.
    With regard to CBP's civil administrative enforcement authority of 
IPR, if CBP makes a request to a rights holder for information, 
software and/or hardware, such request would not fall in the 
``donation'' category as contemplated by the regulations, but would be 
considered a request for a ``sample'' of merchandise to be used by CBP 
for authentication purposes with regard to a specific matter. The 
current process with CBP will continue unaffected by the donation 
regulations put in place.
    Comment: The commenter is further concerned with regard to the 
waiver language in proposed Sec.  133.61(c) (``. . . the service 
provider expressly waives any future claims against the government.''). 
The commenter stated that the proposed language is overbroad and 
potentially captures all instances where a donor of technology and 
services pursues unrelated claims against the U.S. government. The 
commenter suggested that the waiver be reasonably tailored to the 
donation in question and not include ``any claims against the 
government.'' Entering into a donation agreement with CBP should not 
foreclose any remedies against the government in cases unrelated to the 
donation agreement.
    CBP Response: CBP agrees that a clarification is appropriate and 
has amended the regulatory text in 19 CFR 133.61(c) to address this 
concern.
    Comment: Another commenter expressed a concern with the proposed 
rule. The commenter stated that it appears that the proposed rule would 
favor companies with more well-known intellectual property and a larger 
market share, undercutting the fundamental purposes of intellectual 
property rights, namely those which promote the availability of new 
technologies and competition in the market. The commenter asked for 
clarification how the proposed rule would benefit entities other than 
those with a market incentive to make donations.
    CBP Response: The intent of the Act is to enhance IPR enforcement. 
Although enforcement of a particular IPR right clearly benefits the 
right-holder, other parties also benefit from IPR enforcement, in 
general.
    Comment: The third commenter commended CBP for its focus on the 
implementation of section 308(d) of the TFTEA and appreciated the 
opportunity for CBP to accept technology to enrich inspection activity 
at all U.S. ports of entry. The commenter stated that the equipment and 
technology that may be used by agents will improve CBP's ability to 
identify counterfeits at even earlier stages in the detection stage 
process.
    The commenter further stated that under the TFTEA, CBP will now be 
able to provide samples of counterfeits to rights holders, and hopes 
that CBP will share details, such as container number,

[[Page 59513]]

customs broker, freight forwarders, associated telephone numbers and 
email addresses once the goods have been deemed counterfeit. The 
sharing of this additional information would enable rights holders to 
analyze the data and provide CBP with additional information to 
identify illicit trade patterns.
    CBP Response: This comment falls outside of the scope of 19 CFR 
133.61. The proposed regulation deals with establishing a donation 
process so CBP can receive donations of technologies, equipment and 
other support services for the purpose of detecting potentially 
infringing articles and does not address CBP sharing information or 
samples to rights holders.
    Other changes: CBP is adding the word ``related'' before the words 
``support services'' throughout the regulatory text in order to clarify 
that only training and support services associated with a donation of 
hardware, software, equipment or technology fall within the scope of 
this regulation. Training services that may be donated pursuant to 
Sec.  133.61 will be in the context of donated technology or equipment, 
in contrast to training services provided to assist with CBP's general 
trade facilitation and trade enforcement pursuant to section 104 of the 
TFTEA.
    CBP is also adding a reference to ``hardware, software, equipment, 
technologies'' to Sec.  133.61(c) to clarify that a donation agreement 
may also cover hardware, software, equipment, and technologies, as well 
as training and other related support services.
    The email address in proposed Sec.  133.61(b) to which donation 
offers should be submitted has been updated to [email protected] to 
reflect the program's current email address.

Conclusion

    After review of the comments, CBP has decided to adopt as final the 
proposed rule published in the Federal Register on January 17, 2017, 
with the changes described above.

Executive Orders 12866, 13563 and 13771

    Executive Orders 13563 and 12866 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs'') directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.''
    This final rule is not a ``significant regulatory action,'' under 
section 3(f) of Executive Order 12866. Accordingly, the Office of 
Management and Budget has not reviewed this regulation. As this rule is 
not a significant regulatory action, this rule is exempt from the 
requirements of Executive Order 13771. See OMB's Memorandum titled 
``Guidance Implementing Executive Order 13771, Titled `Reducing 
Regulation and Controlling Regulatory Costs' '' (April 5, 2017).

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).
    This rule will allow private sector entities to voluntarily donate 
technology, training, and other related support services to improve 
CBP's ability to enforce intellectual property rights potentially 
related to their goods. As any entity with intellectual property could 
make these donations, this rule affects a substantial number of small 
entities. However, this rule imposes no new obligations on entities, 
including those considered small. Any small entity that chooses to make 
these donations will presumably do so because it believes the benefits 
of donating exceed the costs. Therefore, this rule will not have a 
significant economic impact on small entities. Given these reasons, CBP 
certifies that this rule, will not have a significant economic impact 
on a substantial number of small entities.

Paperwork Reduction Act

    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.
    OMB approved collection 1651-0123 has been revised to reflect this 
new collection of information in this final rule for written offers of 
donations to CBP of technology, training, and other related support 
services in accordance with 19 CFR 133.61(b). The information 
collection reflects the additional burden hours for each written offer 
of donation provided to CBP as follows:
    Estimated number of annual respondents: 50.
    Estimated number of annual responses: 50.
    Estimated time burden per response: 2 hours.
    Estimated total annual time burden: 100 hours.

Signing Authority

    This document is being issued in accordance with 19 CFR 0.1(a)(1) 
pertaining to the Secretary of the Treasury's authority (or that of his 
delegate) to approve regulations related to certain customs revenue 
functions.

List of Subjects in 19 CFR Part 133

    Circumvention devices, Copying or simulating trademarks, 
Copyrights, Counterfeit goods, Customs duties and inspection, 
Detentions, Donations, Reporting and recordkeeping requirements, 
Restricted merchandise, Seizures and forfeitures, Technology, 
Trademarks, Trade names, Support services.

Amendments to Part 133 of the CBP Regulations

    For the reasons set forth above, part 133 of title 19 of the Code 
of Federal Regulations (19 CFR part 133) is amended as set forth below.

PART 133--TRADEMARKS, TRADE NAMES, AND COPYRIGHTS

0
1. The general authority citation for part 133 continues, and the 
specific authority for new subpart H 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.
* * * * *
    Section 133.61 also issued under Sec. 308(d), Pub. L. 114-125; 
Sec. 507, Pub. L. 108-90; Sec. 2, Pub. L. 114-279.

Subpart G--[Reserved]

0
2. Reserved subpart G is added.

0
3. Subpart H, consisting of Sec.  133.61, is added to read as follows:

[[Page 59514]]

Subpart H--Donations of Intellectual Property Rights Technology and 
Related Support Services


Sec.  133.61  Donations of intellectual property rights technology and 
related support services.

    (a) Scope. The Commissioner of U.S. Customs and Border Protection 
(CBP) is authorized to accept donations of hardware, software, 
equipment, and similar technologies, as well as related support 
services and training, from private sector entities, for the purpose of 
assisting CBP in enforcing intellectual property rights. Such 
acceptance must be consistent with the conditions set forth in this 
section and section 308(d) of the Trade Facilitation and Trade 
Enforcement Act of 2015 (19 U.S.C. 4301 note), as well as either 
section 482 of the Homeland Security Act of 2002, as amended by section 
2 of the Cross-Border Trade Enhancement Act of 2016 (6 U.S.C. 301a), or 
section 507 of the Department of Homeland Security Appropriations Act 
of 2004 (Pub. L. 108-90). However, this section does not apply to 
merchandise provided to CBP as samples, e.g., as referenced in 
Sec. Sec.  151.10 and 177.2 of this chapter.
    (b) Donation offer. A donation offer must be submitted to CBP 
either via email, to [email protected], or mailed to the attention of the 
Executive Assistant Commissioner, Office of Field Operations, or his/
her designee. The donation offer must describe the proposed donation in 
sufficient detail to enable CBP to determine its compatibility with 
existing CBP technologies, networks, and facilities (e.g. operating 
system or similar requirements, power supply requirements, item size 
and weight, etc.). The donation offer must also include information 
pertaining to the donation's scope, purpose, expected benefits, 
intended use, costs, and attached conditions, as applicable, that is 
sufficient to enable CBP to evaluate the donation and make a 
determination as to whether to accept it. CBP will notify the donor, in 
writing, if additional information is requested or if CBP has 
determined that it will not accept the donation.
    (c) Agreement to accept donation. If CBP accepts a donation of 
hardware, software, equipment, technologies, or related support 
services and training, for the purpose of enforcing intellectual 
property rights, CBP will enter into a signed, written agreement with 
an authorized representative of the donor. The agreement must contain 
all applicable terms and conditions of the donation. An agreement to 
accept a donation must provide that the hardware, software, equipment, 
technologies, or related support services and training are offered 
without the expectation of payment, and that the donor expressly waives 
any future claims, except those expressly reserved in the agreement, 
against the government related to the donation.

Kevin K. McAleenan,
Acting Commissioner, U.S. Customs and Border Protection.
    Approved: December 12, 2017.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2017-27065 Filed 12-14-17; 8:45 am]
 BILLING CODE 9111-14-P



                                                               Federal Register / Vol. 82, No. 240 / Friday, December 15, 2017 / Rules and Regulations                                        59511

                                              PART 1130—REQUIREMENTS FOR                              DEPARTMENT OF HOMELAND                                (DHS) Appropriations Act of 2004 (Pub.
                                              CONSUMER REGISTRATION OF                                SECURITY                                              L. 108–90).
                                              DURABLE INFANT OR TODDLER                                                                                        Section 482 of the Homeland Security
                                              PRODUCTS                                                U.S. Customs and Border Protection                    Act replaced section 559 of Title V of
                                                                                                                                                            Division F of the Consolidated
                                              ■ 3. The authority citation for part 1130               DEPARTMENT OF THE TREASURY                            Appropriations Act, 2014 (Pub. L. 113–
                                              continues to read as follows:                                                                                 76) and permits CBP, in consultation
                                                  Authority: 15 U.S.C. 2056a, 2065(b).                19 CFR Part 133                                       with the General Services
                                                                                                                                                            Administration (GSA), to ‘‘enter into an
                                              ■ 4. Amend § 1130.2 by revising                         [USCBP–2016–0076; CBP Dec. 17–21]                     agreement with any entity to accept a
                                              paragraph (a)(13) to read as follows:                                                                         donation of personal property, money or
                                                                                                      RIN 1515–AE21
                                              § 1130.2    Definitions.                                                                                      nonpersonal services’’ to be used for
                                                                                                      Donations of Technology and Related                   certain CBP activities at most ports of
                                              *     *    *     *     *
                                                                                                      Support Services To Enforce                           entry where CBP performs inspection
                                                (a) * * *
                                                                                                      Intellectual Property Rights                          services. Pursuant to section 482(c)(3),
                                                (13) Children’s folding chairs and
                                                                                                                                                            CBP in consultation with GSA will
                                              stools;                                                 AGENCY:  U.S. Customs and Border                      establish criteria for evaluating donation
                                              *     *    *     *     *                                Protection, Department of Homeland                    proposals under section 482 and make
                                              ■ 5. Add part 1232 to read as follows:                  Security; Department of the Treasury.                 such criteria publicly available.
                                                                                                      ACTION: Final rule.                                      If donations cannot be accepted under
                                              PART 1232—SAFETY STANDARD FOR                                                                                 section 482, they may be accepted under
                                              CHILDREN’S FOLDING CHAIRS AND                           SUMMARY:   This document amends the                   section 507 of the DHS Appropriations
                                              STOOLS                                                  U.S. Customs and Border Protection                    Act of 2004. Section 507 made the DHS
                                                                                                      (CBP) regulations relating to the                     Gifts and Donations account ‘‘available
                                              Sec.                                                    enforcement of intellectual property
                                              1232.1 Scope.
                                                                                                                                                            to the Department of Homeland Security
                                              1232.2 Requirements for children’s folding
                                                                                                      rights. This final rule implements                    . . . for the Secretary of Homeland
                                                   chairs and stools.                                 section 308(d) of the Trade Facilitation              Security to accept, hold, administer and
                                                                                                      and Trade Enforcement Act of 2015                     utilize gifts and bequests, including
                                                Authority: Sec. 104, Pub. L. 110–314, 122             (TFTEA), which requires CBP to                        property to facilitate the work of the
                                              Stat. 3016 (August 14, 2008); Pub. L. 112–28,
                                              125 Stat. 273 (August 12, 2011).
                                                                                                      prescribe regulatory procedures for the               Department of Homeland Security.’’
                                                                                                      donation of technologies, training, or                Title V, Public Law 108–90, 117 Stat.
                                              § 1232.1    Scope.                                      other related services for the purpose of             1153–1154. DHS policy on the
                                                This part establishes a consumer                      assisting CBP in intellectual property                acceptance of gifts pursuant to section
                                              product safety standard for children’s                  enforcement.                                          507 is contained in DHS Directive 112–
                                              folding chairs and stools.                              DATES:   Effective January 16, 2018.                  02 and DHS Instruction 112–02–001.
                                                                                                                                                            The Secretary of DHS delegated the
                                              § 1232.2 Requirements for children’s                    FOR FURTHER INFORMATION CONTACT:
                                                                                                                                                            authority to accept and utilize gifts to
                                              folding chairs and stools.                              Garrett D. Wright, Chief, Donations                   the heads of certain DHS components,
                                                 (a) Each children’s folding chair and                Acceptance Program, Office of Field                   including the Commissioner of CBP, in
                                              stool shall comply with all applicable                  Operations, U.S. Customs and Border                   DHS Delegation 0006.
                                              provisions of ASTM F2613–17a,                           Protection, telephone (202) 344–2344.                    This document implements section
                                              Standard Consumer Safety                                SUPPLEMENTARY INFORMATION:                            308(d) of the TFTEA by promulgating a
                                              Specification for Children’s Chairs and                 Background                                            new subpart H to part 133 of title 19 of
                                              Stools, approved on October 1, 2017.                                                                          the Code of Federal Regulations (CFR)
                                              The Director of the Federal Register                      The Trade Facilitation and Trade                    which provides for the receipt and
                                              approves this incorporation by reference                Enforcement Act of 2015 (TFTEA),                      acceptance by CBP of donations of
                                              in accordance with 5 U.S.C. 552(a) and                  Public Law 114–125, 130 Stat. 122 (19                 hardware, software, equipment, and
                                              1 CFR part 51. You may obtain a copy                    U.S.C. 4301 note), was enacted on                     similar technologies, as well as training
                                              from ASTM International, 100 Bar                        February 24, 2016, and includes several               and related support services, for the
                                              Harbor Drive, P.O. Box 0700, West                       provisions regarding trade facilitation               purpose of assisting CBP in enforcing
                                              Conshohocken, PA 19428; http://                         and trade enforcement, some of which                  IPR. New subpart H, as set forth in
                                              www.astm.org. You may inspect a copy                    deal with improving U.S. Customs and                  § 133.61, prescribes the methods by
                                              at the Office of the Secretary, U.S.                    Border Protection’s (CBP’s) intellectual              which donations of IPR technology and
                                              Consumer Product Safety Commission,                     property rights (IPR) enforcement at the              related support services may be made.
                                              Room 820, 4330 East West Highway,                       border. Section 308(d) of the TFTEA                   Specifically, 19 CFR 133.61(a) sets forth
                                              Bethesda, MD 20814, telephone 301–                      requires the Commissioner of CBP to                   the scope of this section and identifies
                                              504–7923, or at the National Archives                   prescribe regulations to enable CBP to                the authority to accept donations,
                                              and Records Administration (NARA).                      receive donations of hardware, software,              § 133.61(b) describes the donation
                                              For information on the availability of                  equipment, and similar technologies,                  process, and § 133.61(c) lays out the
                                              this material at NARA, call 202–741–                    and to accept training and other support              elements of the written donation
                                              6030, or go to: http://www.archives.gov/                services, from private sector entities, for           agreement.
                                              federal-register/cfr/ibr-locations.html.                the purpose of enforcing IPR.                            On January 17, 2017, CBP published
nshattuck on DSK9F9SC42PROD with RULES




                                                 (b) [Reserved]                                         Acceptance of such donations must                   a Notice of Proposed Rulemaking
                                                                                                      also be consistent with either section                (NPRM) in the Federal Register (82 FR
                                              Alberta E. Mills,                                       482 of the Homeland Security Act of                   4800) proposing to amend its
                                              Acting Secretary, Consumer Product Safety               2002, as amended by section 2 of the                  regulations pertaining to the
                                              Commission.                                             Cross-Border Trade Enhancement Act of                 enforcement of intellectual property
                                              [FR Doc. 2017–26997 Filed 12–14–17; 8:45 am]            2016 (Pub. L. 114–279), or section 507                rights in order to enhance CBP’s
                                              BILLING CODE 6355–01–P                                  of the Department of Homeland Security                intellectual property rights enforcement


                                         VerDate Sep<11>2014   15:15 Dec 14, 2017   Jkt 244001   PO 00000   Frm 00007   Fmt 4700   Sfmt 4700   E:\FR\FM\15DER1.SGM   15DER1


                                              59512            Federal Register / Vol. 82, No. 240 / Friday, December 15, 2017 / Rules and Regulations

                                              capabilities. The NPRM solicited for                    companies to donate hardware,                         contemplated by the regulations, but
                                              public comments on the proposed                         software, samples of infringing                       would be considered a request for a
                                              rulemaking. The public comment period                   products, circumvention devices that                  ‘‘sample’’ of merchandise to be used by
                                              closed on March 3, 2017.                                violate 17 U.S.C. 1201, and training                  CBP for authentication purposes with
                                                                                                      materials along with a request that CBP               regard to a specific matter. The current
                                              Discussion of Comments
                                                                                                      seize like goods using a simple                       process with CBP will continue
                                                 Three commenters responded to the                    transmittal letter to CBP’s Office of                 unaffected by the donation regulations
                                              solicitation of comments to the                         Trade, Regulations and Rulings, IPR                   put in place.
                                              proposed rule. A description of the                     Branch. Typically, these donations                       Comment: The commenter is further
                                              comments received, together with CBP’s                  comprise numerous identical or                        concerned with regard to the waiver
                                              analysis, is set forth below.                           comparable items, such as game copiers,               language in proposed § 133.61(c) (‘‘. . .
                                                 Comment: One commenter, an                           other circumvention devices, or memory                the service provider expressly waives
                                              association dedicated to serving the                    cards filled with pre-loaded games.                   any future claims against the
                                              needs of the video game industry,                          CBP Response: The process described                government.’’). The commenter stated
                                              commended CBP’s efforts to enhance its                  in the public comment with regard to                  that the proposed language is overbroad
                                              engagement with intellectual property-                  submissions of samples of genuine and                 and potentially captures all instances
                                              intensive industries and border                         infringing articles will not be changed               where a donor of technology and
                                              enforcement needs, but also voiced                      with the new regulation. A distinction                services pursues unrelated claims
                                              several concerns.                                       needs to be made between ‘‘donations’’                against the U.S. government. The
                                                 The first concern is related to                      covered under section 308(d) of the                   commenter suggested that the waiver be
                                              proposed § 133.61(b). The commenter                     TFTEA which are provided for the                      reasonably tailored to the donation in
                                              expressed concern with the procedure                    regular use by CBP personnel assisting                question and not include ‘‘any claims
                                              laid out in paragraph (b) because this                  with the enforcement of IPR, such as an               against the government.’’ Entering into a
                                              ‘‘formalized’’ process might interrupt                  x-ray machine or a high magnification                 donation agreement with CBP should
                                              the dynamic nature of the relationship                  microscope, and ‘‘samples’’ of                        not foreclose any remedies against the
                                              between CBP and the video game                          merchandise provided to the IPR Branch                government in cases unrelated to the
                                              industry in providing training, as well                 for purposes of determining                           donation agreement.
                                              as the tools CBP needs in order to                      admissibility. The furnishing of samples                 CBP Response: CBP agrees that a
                                              accurately confirm the illegality of                    of genuine and infringing articles is not             clarification is appropriate and has
                                              suspected infringing imports.                           covered by the intended scope of the                  amended the regulatory text in 19 CFR
                                                 CBP Response: CBP seeks to maintain                  Donations Acceptance Program under                    133.61(c) to address this concern.
                                              the dynamic relationship it has with the                § 133.61. Rights owners, including the                   Comment: Another commenter
                                              video game industry and other                           video game industry, will be able to                  expressed a concern with the proposed
                                              industries. The donation process that                   continue to communicate and provide                   rule. The commenter stated that it
                                              CBP is creating is intended to be                       samples to the IPR Branch and field                   appears that the proposed rule would
                                              streamlined, non-invasive, and flexible.                offices as the need for enforcement                   favor companies with more well-known
                                              For example, in certain circumstances,                  arises. Accordingly, based on this                    intellectual property and a larger market
                                              CBP and the industry partner may only                   comment, CBP has amended the                          share, undercutting the fundamental
                                              need to enter into one written                          regulatory text in § 133.61(a) to clarify             purposes of intellectual property rights,
                                              partnership agreement whereby any IPR                   that articles provided to CBP as                      namely those which promote the
                                              donation proposal made pursuant to                      ‘‘samples,’’ as referenced in 19 CFR                  availability of new technologies and
                                              that agreement could be evaluated and,                  151.10 and 177.2, are not included                    competition in the market. The
                                              if viable, accepted at the local level. In              within the scope of this rule.                        commenter asked for clarification how
                                              addition, as explained below, the                          Comment: The commenter also seeks                  the proposed rule would benefit entities
                                              donation process does not apply to                      clarification on whether the proposed                 other than those with a market incentive
                                              ‘‘sample’’ products or stand-alone                      donation offer requirements and process               to make donations.
                                              training or educational seminars.                       would hinder the ability of CBP or other                 CBP Response: The intent of the Act
                                                 Comment: The commenter asked for                     DHS personnel, such as those of                       is to enhance IPR enforcement.
                                              clarification on whether a single                       Immigration and Customs Enforcement                   Although enforcement of a particular
                                              donation offer, as envisioned by                        (ICE), to request hardware or software                IPR right clearly benefits the right-
                                              § 133.61(b), would cover a quantity or a                samples from private companies for the                holder, other parties also benefit from
                                              range of items, or whether a donation                   purpose of conducting investigations.                 IPR enforcement, in general.
                                              offer must be submitted for each item                      CBP Response: The donation                            Comment: The third commenter
                                              contemplated for donation.                              requirements will not hinder the current              commended CBP for its focus on the
                                                 CBP Response: In general, a single                   process of cooperation and information-               implementation of section 308(d) of the
                                              donation offer could cover more than                    sharing that regularly occurs between                 TFTEA and appreciated the opportunity
                                              one item and/or a range of items                        rights holders and DHS personnel. The                 for CBP to accept technology to enrich
                                              assuming such items serve a similar IPR                 regulations are not intended to affect the            inspection activity at all U.S. ports of
                                              enforcement purpose. Each donation                      processing of criminal investigations                 entry. The commenter stated that the
                                              offer and each item, however, will be                   into potential IPR violations within                  equipment and technology that may be
                                              considered on a case-by-case basis.                     other DHS agencies, such as DHS/                      used by agents will improve CBP’s
                                                 Comment: The commenter also                          Homeland Security Investigations (HSI)                ability to identify counterfeits at even
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                                              requested clarification on whether a                    under DHS/ICE.                                        earlier stages in the detection stage
                                              single, written donation offer would                       With regard to CBP’s civil                         process.
                                              encompass anticipated intermittent                      administrative enforcement authority of                  The commenter further stated that
                                              donations of samples of infringing                      IPR, if CBP makes a request to a rights               under the TFTEA, CBP will now be able
                                              products and circumvention devices.                     holder for information, software and/or               to provide samples of counterfeits to
                                              The commenter explained that current                    hardware, such request would not fall in              rights holders, and hopes that CBP will
                                              practice allows for video game                          the ‘‘donation’’ category as                          share details, such as container number,


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                                                               Federal Register / Vol. 82, No. 240 / Friday, December 15, 2017 / Rules and Regulations                                            59513

                                              customs broker, freight forwarders,                     reducing costs, of harmonizing rules,                 collection of information displays a
                                              associated telephone numbers and email                  and of promoting flexibility. Executive               valid control number assigned by OMB.
                                              addresses once the goods have been                      Order 13771 (‘‘Reducing Regulation and                  OMB approved collection 1651–0123
                                              deemed counterfeit. The sharing of this                 Controlling Regulatory Costs’’) directs               has been revised to reflect this new
                                              additional information would enable                     agencies to reduce regulation and                     collection of information in this final
                                              rights holders to analyze the data and                  control regulatory costs and provides                 rule for written offers of donations to
                                              provide CBP with additional                             that ‘‘for every one new regulation                   CBP of technology, training, and other
                                              information to identify illicit trade                   issued, at least two prior regulations be             related support services in accordance
                                              patterns.                                               identified for elimination, and that the              with 19 CFR 133.61(b). The information
                                                 CBP Response: This comment falls                     cost of planned regulations be prudently              collection reflects the additional burden
                                              outside of the scope of 19 CFR 133.61.                  managed and controlled through a                      hours for each written offer of donation
                                              The proposed regulation deals with                      budgeting process.’’                                  provided to CBP as follows:
                                              establishing a donation process so CBP                     This final rule is not a ‘‘significant               Estimated number of annual
                                              can receive donations of technologies,                  regulatory action,’’ under section 3(f) of            respondents: 50.
                                              equipment and other support services                    Executive Order 12866. Accordingly,
                                              for the purpose of detecting potentially                                                                        Estimated number of annual
                                                                                                      the Office of Management and Budget
                                              infringing articles and does not address                                                                      responses: 50.
                                                                                                      has not reviewed this regulation. As this
                                              CBP sharing information or samples to                   rule is not a significant regulatory                    Estimated time burden per response:
                                              rights holders.                                         action, this rule is exempt from the                  2 hours.
                                                 Other changes: CBP is adding the                     requirements of Executive Order 13771.                  Estimated total annual time burden:
                                              word ‘‘related’’ before the words                       See OMB’s Memorandum titled                           100 hours.
                                              ‘‘support services’’ throughout the                     ‘‘Guidance Implementing Executive
                                              regulatory text in order to clarify that                                                                      Signing Authority
                                                                                                      Order 13771, Titled ‘Reducing
                                              only training and support services                      Regulation and Controlling Regulatory                   This document is being issued in
                                              associated with a donation of hardware,                 Costs’ ’’ (April 5, 2017).                            accordance with 19 CFR 0.1(a)(1)
                                              software, equipment or technology fall                                                                        pertaining to the Secretary of the
                                              within the scope of this regulation.                    Regulatory Flexibility Act                            Treasury’s authority (or that of his
                                              Training services that may be donated                      The Regulatory Flexibility Act (5                  delegate) to approve regulations related
                                              pursuant to § 133.61 will be in the                     U.S.C. 601 et seq.), as amended by the                to certain customs revenue functions.
                                              context of donated technology or                        Small Business Regulatory Enforcement
                                              equipment, in contrast to training                                                                            List of Subjects in 19 CFR Part 133
                                                                                                      and Fairness Act of 1996, requires
                                              services provided to assist with CBP’s                  agencies to assess the impact of                        Circumvention devices, Copying or
                                              general trade facilitation and trade                    regulations on small entities. A small                simulating trademarks, Copyrights,
                                              enforcement pursuant to section 104 of                  entity may be a small business (defined               Counterfeit goods, Customs duties and
                                              the TFTEA.                                              as any independently owned and                        inspection, Detentions, Donations,
                                                 CBP is also adding a reference to                    operated business not dominant in its                 Reporting and recordkeeping
                                              ‘‘hardware, software, equipment,                        field that qualifies as a small business              requirements, Restricted merchandise,
                                              technologies’’ to § 133.61(c) to clarify                per the Small Business Act); a small not-             Seizures and forfeitures, Technology,
                                              that a donation agreement may also                      for-profit organization; or a small                   Trademarks, Trade names, Support
                                              cover hardware, software, equipment,                    governmental jurisdiction (locality with              services.
                                              and technologies, as well as training and               fewer than 50,000 people).
                                              other related support services.                                                                               Amendments to Part 133 of the CBP
                                                 The email address in proposed                           This rule will allow private sector                Regulations
                                              § 133.61(b) to which donation offers                    entities to voluntarily donate
                                              should be submitted has been updated                    technology, training, and other related                 For the reasons set forth above, part
                                              to dap@cbp.dhs.gov to reflect the                       support services to improve CBP’s                     133 of title 19 of the Code of Federal
                                              program’s current email address.                        ability to enforce intellectual property              Regulations (19 CFR part 133) is
                                                                                                      rights potentially related to their goods.            amended as set forth below.
                                              Conclusion                                              As any entity with intellectual property
                                                After review of the comments, CBP                     could make these donations, this rule                 PART 133—TRADEMARKS, TRADE
                                              has decided to adopt as final the                       affects a substantial number of small                 NAMES, AND COPYRIGHTS
                                              proposed rule published in the Federal                  entities. However, this rule imposes no
                                              Register on January 17, 2017, with the                  new obligations on entities, including                ■ 1. The general authority citation for
                                              changes described above.                                those considered small. Any small                     part 133 continues, and the specific
                                                                                                      entity that chooses to make these                     authority for new subpart H is added to
                                              Executive Orders 12866, 13563 and                       donations will presumably do so                       read as follows:
                                              13771                                                   because it believes the benefits of                     Authority: 15 U.S.C. 1124, 1125, 1127; 17
                                                 Executive Orders 13563 and 12866                     donating exceed the costs. Therefore,                 U.S.C. 101, 601, 602, 603; 19 U.S.C. 66, 1202,
                                              direct agencies to assess the costs and                 this rule will not have a significant                 1499, 1526, 1624; 31 U.S.C. 9701.
                                              benefits of available regulatory                        economic impact on small entities.                    *        *   *    *      *
                                              alternatives and, if regulation is                      Given these reasons, CBP certifies that                 Section 133.61 also issued under Sec.
                                              necessary, to select regulatory                         this rule, will not have a significant                308(d), Pub. L. 114–125; Sec. 507, Pub. L.
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                                              approaches that maximize net benefits                   economic impact on a substantial                      108–90; Sec. 2, Pub. L. 114–279.
                                              (including potential economic,                          number of small entities.
                                              environmental, public health and safety                                                                       Subpart G—[Reserved]
                                                                                                      Paperwork Reduction Act
                                              effects, distributive impacts, and
                                              equity). Executive Order 13563                            An agency may not conduct, and a                    ■   2. Reserved subpart G is added.
                                              emphasizes the importance of                            person is not required to respond to, a               ■ 3. Subpart H, consisting of § 133.61, is
                                              quantifying both costs and benefits, of                 collection of information unless the                  added to read as follows:


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                                              59514                Federal Register / Vol. 82, No. 240 / Friday, December 15, 2017 / Rules and Regulations

                                              Subpart H—Donations of Intellectual                                 additional information is requested or if                            revisions to these body systems in this
                                              Property Rights Technology and                                      CBP has determined that it will not                                  final rule. This extension ensures that
                                              Related Support Services                                            accept the donation.                                                 we will continue to have the criteria we
                                                                                                                    (c) Agreement to accept donation. If                               need to evaluate impairments in the
                                              § 133.61 Donations of intellectual property                         CBP accepts a donation of hardware,                                  affected body systems at step three of
                                              rights technology and related support
                                              services.
                                                                                                                  software, equipment, technologies, or                                the sequential evaluation processes for
                                                                                                                  related support services and training, for                           initial claims and continuing disability
                                                 (a) Scope. The Commissioner of U.S.                              the purpose of enforcing intellectual                                reviews.
                                              Customs and Border Protection (CBP) is                              property rights, CBP will enter into a
                                              authorized to accept donations of                                                                                                        DATES: This final rule is effective on
                                                                                                                  signed, written agreement with an                                    December 15, 2017.
                                              hardware, software, equipment, and
                                                                                                                  authorized representative of the donor.
                                              similar technologies, as well as related                                                                                                 FOR FURTHER INFORMATION CONTACT:
                                                                                                                  The agreement must contain all
                                              support services and training, from                                                                                                      Cheryl A. Williams, Director, Office of
                                                                                                                  applicable terms and conditions of the
                                              private sector entities, for the purpose of                                                                                              Medical Policy, 6401 Security
                                                                                                                  donation. An agreement to accept a
                                              assisting CBP in enforcing intellectual                                                                                                  Boulevard, Baltimore, MD 21235–6401,
                                                                                                                  donation must provide that the
                                              property rights. Such acceptance must                                                                                                    (410) 965–1020. For information on
                                                                                                                  hardware, software, equipment,
                                              be consistent with the conditions set                                                                                                    eligibility or filing for benefits, call our
                                                                                                                  technologies, or related support services
                                              forth in this section and section 308(d)                                                                                                 national toll-free number, 1–800–772–
                                                                                                                  and training are offered without the
                                              of the Trade Facilitation and Trade                                                                                                      1213, or TTY 1–800–325–0778, or visit
                                                                                                                  expectation of payment, and that the
                                              Enforcement Act of 2015 (19 U.S.C.                                                                                                       our internet site, Social Security Online,
                                              4301 note), as well as either section 482                           donor expressly waives any future
                                                                                                                  claims, except those expressly reserved                              at http://www.socialsecurity.gov.
                                              of the Homeland Security Act of 2002,
                                              as amended by section 2 of the Cross-                               in the agreement, against the                                        SUPPLEMENTARY INFORMATION:
                                              Border Trade Enhancement Act of 2016                                government related to the donation.
                                                                                                                                                                                       Background
                                              (6 U.S.C. 301a), or section 507 of the                              Kevin K. McAleenan,
                                              Department of Homeland Security                                                                                                            We use the listings in appendix 1 to
                                                                                                                  Acting Commissioner, U.S. Customs and
                                              Appropriations Act of 2004 (Pub. L.                                                                                                      subpart P of part 404 of 20 CFR at the
                                                                                                                  Border Protection.
                                              108–90). However, this section does not                                                                                                  third step of the sequential evaluation
                                                                                                                    Approved: December 12, 2017.
                                              apply to merchandise provided to CBP                                                                                                     process to evaluate claims filed by
                                                                                                                  Timothy E. Skud,                                                     adults and children for benefits based
                                              as samples, e.g., as referenced in                                  Deputy Assistant Secretary of the Treasury.
                                              §§ 151.10 and 177.2 of this chapter.                                                                                                     on disability under the title II and title
                                                 (b) Donation offer. A donation offer                             [FR Doc. 2017–27065 Filed 12–14–17; 8:45 am]                         XVI programs.1 20 CFR 404.1520(d),
                                              must be submitted to CBP either via                                 BILLING CODE 9111–14–P                                               416.920(d), 416.924(d). The listings are
                                              email, to dap@cbp.dhs.gov, or mailed to                                                                                                  in two parts: Part A has listings criteria
                                              the attention of the Executive Assistant                                                                                                 for adults and Part B has listings criteria
                                              Commissioner, Office of Field                                       SOCIAL SECURITY ADMINISTRATION                                       for children. If you are age 18 or over,
                                              Operations, or his/her designee. The                                                                                                     we apply the listings criteria in part A
                                              donation offer must describe the                                    20 CFR Part 404                                                      when we assess your impairment or
                                              proposed donation in sufficient detail to                           [Docket No. SSA–2017–0055]                                           combination of impairments. If you are
                                              enable CBP to determine its                                                                                                              under age 18, we first use the criteria in
                                              compatibility with existing CBP                                     RIN 0960–AI17                                                        part B of the listings when we assess
                                              technologies, networks, and facilities                                                                                                   your impairment(s). If the criteria in
                                                                                                                  Extension of Expiration Dates for Four
                                              (e.g. operating system or similar                                                                                                        part B do not apply, we may use the
                                                                                                                  Body System Listings
                                              requirements, power supply                                                                                                               criteria in part A when those criteria
                                              requirements, item size and weight,                                 AGENCY:       Social Security Administration.                        consider the effects of your
                                              etc.). The donation offer must also                                 ACTION:      Final rule.                                             impairment(s). 20 CFR 404.1525(b),
                                              include information pertaining to the                                                                                                    416.925(b).
                                              donation’s scope, purpose, expected                                 SUMMARY:    We are extending the
                                                                                                                                                                                       Explanation of Changes
                                              benefits, intended use, costs, and                                  expiration dates of the following body
                                              attached conditions, as applicable, that                            systems in the Listing of Impairments                                  In this final rule, we are extending the
                                              is sufficient to enable CBP to evaluate                             (listings) in our regulations:                                       dates on which the listings for the
                                              the donation and make a determination                               Musculoskeletal System, Cardiovascular                               following four body systems will no
                                              as to whether to accept it. CBP will                                System, Digestive System, and Skin                                   longer be effective as set out in the
                                              notify the donor, in writing, if                                    Disorders. We are making no other                                    following chart:



                                                                                                                                                                                              Current expiration          Extended expiration
                                                                                                               Listing                                                                              date                         date

                                              Musculoskeletal System 1.00 and 101.00 ..............................................................................................          January   26,   2018   ...   January   27,   2020.
                                              Cardiovascular System 4.00 and 104.00 ...............................................................................................          January   26,   2018   ...   January   27,   2020.
                                              Digestive System 5.00 and 105.00 .........................................................................................................     January   26,   2018   ...   January   27,   2020.
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                                              Skin Disorders 8.00 and 108.00 .............................................................................................................   January   26,   2018   ...   January   27,   2020.




                                                1 We also use the listings in the sequential                      a beneficiary’s disability continues. See 20 CFR
                                              evaluation processes we use to determine whether                    404.1594, 416.994, and 416.994a.




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Document Created: 2017-12-15 03:37:02
Document Modified: 2017-12-15 03:37:02
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 January 16, 2018.
ContactGarrett D. Wright, Chief, Donations Acceptance Program, Office of Field Operations, U.S. Customs and Border Protection, telephone (202) 344-2344.
FR Citation82 FR 59511 
RIN Number1515-AE21
CFR AssociatedCircumvention Devices; Copying Or Simulating Trademarks; Copyrights; Counterfeit Goods; Customs Duties and Inspection; Detentions; Donations; Reporting and Recordkeeping Requirements; Restricted Merchandise; Seizures and Forfeitures; Technology; Trademarks; Trade Names and Support Services

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