Dmca Nprm

Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules
state law must be determined by the
juvenile court based on applicable state
law.
• Clarify that DHS consent to the
grant of SIJ classification is only
warranted when the petitioner
demonstrates that the state court order
was sought primarily for the purpose of
obtaining relief from abuse, neglect,
abandonment or some similar basis
under state law and not primarily for
the purpose of obtaining lawful
immigration status; and that the
evidence otherwise demonstrates that
there is a bona fide basis for granting SIJ
classification.
• Clarify that USCIS may seek or
consider additional evidence if the
evidence presented is not sufficient to
establish a reasonable basis for DHS
consent.
• Remove automatic revocation under
8 CFR 205.1(a)(3)(iv)(A) and (C) to the
extent that they pertain to a juvenile’s
age and are inconsistent with age-out
protections under TVPRA 2008.
• Implement statutory revisions
exempting SIJ adjustment-of-status
applicants from four additional grounds
of inadmissibility and clarify grounds of
inadmissibility that cannot be waived.
• Improve the application process by
clearly listing required initial evidence
that must accompany Form I–360 and
amend what constitutes supporting
documentation; and
• Make technical and procedural
changes; and conform terminology.
DHS is reopening the comment period
to refresh this proposed rule and allow
interested persons to provide up-to-date
comments in recognition of the time
that has lapsed since the initial
publication of the proposed rule. Both
the public and the Government will
benefit from clarifications regarding
eligibility and procedures for the SIJ
classification. Due to the lapse in time
since the NPRM was issued, DHS seeks
to reengage the public and allow further
input on the proposed changes.
Kevin K. McAleenan,
Acting Secretary.
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[FR Doc. 2019–22570 Filed 10–15–19; 8:45 am]
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DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Parts 113, 133, 148, 151 and
177
[USCBP–2019–0037]
RIN 1515–AE26

Enforcement of Copyrights and the
Digital Millennium Copyright Act
U.S. Customs and Border
Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Notice of proposed rulemaking.
AGENCY:

This document proposes to
amend the U.S. Customs and Border
Protection (CBP) regulations pertaining
to importations of merchandise that
violate or are suspected of violating the
copyright laws, including the Digital
Millennium Copyright Act (DMCA), in
accordance with Title III of the Trade
Facilitation and Trade Enforcement Act
of 2015 (TFTEA). The proposed
amendments set forth in this document
are intended to clarify the definition of
‘‘piratical articles,’’ simplify the
detention process involving goods
suspected of violating the copyright
laws, and prescribe new regulations
enforcing the DMCA.
DATES: Comments on the proposed rule
must be received on or before December
16, 2019.
ADDRESSES: You may submit comments,
identified by docket number, by one of
the following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments
via docket number USCBP–2019–0037.
• Mail: Trade and Commercial
Regulations Branch, Regulations and
Rulings, Office of Trade, U.S. Customs
and Border Protection, 90 K Street NE,
10th Floor, Washington, DC 20229–
1177.
Instructions: All submissions received
must include the agency name and
docket number for this proposed
rulemaking. All comments received will
be posted without change to http://
www.regulations.gov, including any
personal information provided. For
detailed instructions on submitting
comments and additional information
on the proposed rulemaking process, see
the ‘‘Public Participation’’ heading of
the SUPPLEMENTARY INFORMATION section
of this document.
Docket: For access to the docket to
read background documents or
SUMMARY:

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comments received, go to http://
www.regulations.gov. Submitted
comments may also be inspected during
regular business days between the hours
of 9 a.m. and 4:30 p.m. at the Trade and
Commercial Regulations Branch,
Regulations and Rulings, Office of
Trade, U.S. Customs and Border
Protection, 90 K Street NE, 10th Floor,
Washington, DC. Arrangements to
inspect submitted comments should be
made in advance by calling Joseph Clark
at (202) 325–0118.
FOR FURTHER INFORMATION CONTACT: Alex
Bamiagis, Intellectual Property Rights
Branch, Regulations and Rulings, Office
of Trade, U.S. Customs and Border
Protection, (202) 325–0415.
SUPPLEMENTARY INFORMATION:
Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of the
proposed rule. CBP also invites
comments that relate to the economic,
environmental, or federalism effects that
might result from this proposed rule. If
appropriate to a specific comment, the
commenter should reference the specific
portion of the proposed rule, explain the
reason for any recommended change,
and include data, information, or
authority that support such
recommended change.
Background
I. Purpose of Proposed Amendments
U.S. Customs and Border Protection
(CBP) has responsibilities for border
enforcement of intellectual property
rights (IPR) laws and regulations. The
majority of the CBP regulations
regarding these efforts are found in part
133 of title 19 of the Code of Federal
Regulations (19 CFR part 133). Part 133
provides for the recordation of
trademarks, trade names, and copyrights
with CBP and prescribes the
enforcement procedures applicable to
suspected infringing merchandise. Part
133 also sets forth procedures for the
seizure and disposition of articles
bearing prohibited marks or names, and
piratical articles, including release to
the importer in appropriate
circumstances.
CBP is proposing amendments to part
133 of the CBP regulations pursuant to
Title III of the Trade Facilitation and
Trade Enforcement Act of 2015 (Pub. L.
114–125; 130 Stat. 122; Section 628a of
the Tariff Act of 1930 (19 U.S.C. 1628a),
as amended) (TFTEA). Among the
changes made by TFTEA are certain
provisions regarding enforcement of the
Digital Millennium Copyright Act (Pub.

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L. 105–304, 112 Stat. 2860, as amended
by Pub. L. 106–113, 113 Stat. 1536,
(codified at 17 U.S.C. 1201)) (DMCA).
Among other things, the DMCA
prohibits the importation of devices
used to circumvent the technological
measures used by certain copyright
owners to protect their works
(‘‘copyright protection measures’’).
Section 303(a) of TFTEA specifically
provides that CBP may seize
merchandise containing a
circumvention device violating the
DMCA.
TFTEA requires CBP to make certain
pre-seizure disclosures to right holders
if CBP determines that these disclosures
would assist the agency in determining
whether imported merchandise violates
the copyright laws, including the
DMCA. These disclosures assist CBP in
determining whether certain goods are,
in fact, in violation of the copyright
laws, including the DMCA.
The proposed amendments to part
133 of the CBP regulations provide for
such disclosures upon detention of
merchandise suspected of violating the
copyright laws, including the DMCA. In
accordance with TFTEA, these preseizure disclosures may only be made
where the copyright has been recorded
with CBP. In accordance with TFTEA,
CBP will not provide these disclosures
when doing so would compromise an
ongoing law enforcement investigation
or national security.
As noted above, TFTEA provides for
seizure of merchandise containing a
circumvention device in violation of the
DMCA. TFTEA directs CBP to disclose
to persons injured by merchandise
seized for violation of the DMCA
information equivalent to the
information disclosed to copyright
owners when merchandise is seized for
violation of the copyright laws. To
identify those persons eligible to receive
these post-seizure disclosures, TFTEA
directs CBP to create a list of persons
eligible to receive disclosures when
injured by violations of the DMCA
resulting in seizure of the violative
merchandise. Section 133.47 of the
proposed regulations provide for such
disclosures and the establishment of the
list. CBP will publish a notice in the
Federal Register when the list is
established, and again any time the list
is revised.
On October 5, 2004, CBP published a
proposed rulemaking in the Federal
Register (69 FR 59562) proposing
amendments to part 133 of 19 CFR to set
forth changes to CBP’s enforcement
procedures, including enhanced
disclosure provisions and provisions to
enforce the DMCA. Although comments
were solicited and received from the

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public on the proposed amendments,
CBP did not publish a final rule
adopting the proposal. Due to the
passage of time since the publication of
the 2004 proposed rulemaking, CBP is
proposing new amendments to part 133
of the CBP regulations.
II. Disclosure of Information Pertaining
to Certain Intellectual Property Rights
Enforced at the Border
A. The Trade Secrets Act and Disclosure
Under the Current Regulations
The Trade Secrets Act (18 U.S.C.
1905) bars the unauthorized disclosure
by government officials of any
information received in the course of
their employment or official duties
when such information ‘‘concerns or
relates to the trade secrets, processes,
operations, style of work, or apparatus,
or to the identity, confidential statistical
data, amount or source of any income,
profits, losses, or expenditures of any
person, firm, partnership, corporation,
or association.’’ 18 U.S.C. 1905.
Specifically, the Trade Secrets Act
protects those required to furnish
commercial or financial information to
the government by shielding them from
the competitive disadvantage that could
result from disclosure of that
information by the government. In turn,
this protection encourages those
providing information to the
government to furnish accurate and
reliable information that is useful to the
government.
The Trade Secrets Act, however,
permits those covered by the Act to
disclose protected information when the
disclosure is otherwise ‘‘authorized by
law,’’ which includes both statutes
expressly authorizing disclosure and
properly promulgated substantive
agency regulations authorizing
disclosure based on a valid statutory
interpretation. See Chrysler v. Brown,
441 U.S. 281, 294–316 (1979). For
example, the current CBP regulations set
forth in 19 CFR 133.21 allow disclosure
to a right holder of certain information
that may comprise information
otherwise protected by the Trade
Secrets Act for the purposes of
assisting CBP in determining whether
merchandise bears a counterfeit mark.
See CBP Dec. 15–12, published in the
Federal Register (80 FR 56370) on
September 18, 2015, effective October
19, 2015, for background information.
B. Statutory Analysis Concerning
Disclosure of Commercial or Financial
Information
The Secretary of the Treasury has
authority to disclose information
otherwise protected under the Trade

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Secrets Act when such disclosures are
authorized by law.
Disclosures meeting the ‘‘authorized
by law’’ standard of the Trade Secrets
Act include those made under
regulations that are: (1) In compliance
with the provisions of the
Administrative Procedure Act (5 U.S.C.
551 et seq.); and (2) based on a valid
statute. Chrysler, 441 U.S. at 294–96 and
301–03. Various provisions in titles 15
and 19 of the United States Code
authorize CBP to promulgate regulations
to prohibit the importation of
merchandise that infringes intellectual
property rights. Among these, TFTEA
provides statutory authority for
information disclosure, amending
provisions in title 19 of the United
States Code (U.S.C.) to permit, and in
some instances require, CBP to provide
information otherwise protected under
the Trade Secrets Act to IPR owners
under specified conditions.
Title III of TFTEA permits, and in
some instances requires, CBP to disclose
information to IPR owners, to allow
them to assist with enforcement. CBP
enforces statutes prohibiting the
importation of infringing merchandise.
Specifically, 19 U.S.C. 1526 prohibits
the importation of merchandise that
infringes a trademark, 17 U.S.C. 602
prohibits the importation of
merchandise that infringes a copyright
under that title, and lastly, 17 U.S.C.
1201 prohibits the importation of
devices that circumvent copyright
protection systems. In order to aid CBP
in enforcing these prohibitions, 17
U.S.C. 602(b) permits the Secretary of
the Treasury to prescribe a procedure by
which CBP will notify an interested
party (which CBP has defined as the
owner of the copyright) of the
importation of articles that appear to be
copies or phonorecords of a copyrighted
work. See Copyright Act of 1976, Public
Law 94–553, 90 Stat. 2541 (Oct. 19,
1976). The disclosure of information
mandated by TFTEA is only available
where the underlying trademark or
copyright has been recorded with CBP.
Section 302 of TFTEA amended the
Tariff Act of 1930 by inserting section
628a (19 U.S.C. 1628a) after section 628
(19 U.S.C. 1628), requiring CBP to
provide IPR owners with information
appearing on imported articles or their
packaging and labels, including
unredacted images of those articles, if
the examination of the merchandise by
the IPR owner would assist CBP in
determining if those articles violate IPR
laws enforced by CBP. Section 302 of
TFTEA also permits CBP to provide to
the IPR owner unredacted samples of
the merchandise, subject to applicable
bonding requirements, if the IPR

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owner’s help would assist CBP in
determining if the importations
occurred in violation of 17 U.S.C. 602
(copyright), 17 U.S.C. 1201
(circumvention devices), or 19 U.S.C.
1526 (trademark). The information may
only be released where the underlying
trademark or copyright has been
recorded with CBP. CBP may not
disclose information, photographs, or
samples when such disclosure would
compromise an ongoing law
enforcement investigation or national
security.
In 2015, CBP finalized new
regulations for trademark enforcement,
providing for disclosure of information
to mark owners. CBP has proposed to
update 19 CFR 133.21 to include
updated bond provisions in keeping
with the TFTEA disclosures, to limit
disclosure of information to owners of
properly recorded trademarks, as
required by 19 U.S.C. 1628a(c), and to
conform 19 CFR 133.21 to the copyright
and DMCA provisions proposed in 19
CFR 133.42 and 133.47, respectively.
For more information on prior changes
to trademark enforcement, see CBP Dec.
15–12, published in the Federal
Register (80 FR 56370) on September
18, 2015, effective October 19, 2015.
Section 303(a) of TFTEA amended
section 596(c)(2) of the Tariff Act of
1930 (19 U.S.C. 1595a(c)(2)) by adding
subparagraph G (19 U.S.C.
1595a(c)(2)(G)), which provides for the
seizure of articles containing
circumvention devices imported in
violation of the DMCA (17 U.S.C. 1201).
Correspondingly, section 303(b) of
TFTEA requires that when merchandise
containing a circumvention device is
seized pursuant to 19 U.S.C.
1595a(c)(2)(G), CBP must disclose to the
parties injured by that circumvention
device information regarding the seized
merchandise that is equivalent to
information that CBP currently provides
to copyright owners upon seizure of
merchandise for violation of the
copyright laws. (For more information
regarding the information provided to
copyright owners, see proposed 19 CFR
133.42(e) in this document.) Section
303(b)(2) of TFTEA directs CBP to
establish and maintain a list of persons
eligible to receive such disclosures, and
section 303(b)(3) of TFTEA requires the
Secretary of the Treasury to prescribe
regulations establishing procedures to
implement these practices. Section 624
of the Tariff Act of 1930 (19 U.S.C.
1624), as amended, also authorizes the
Secretary of the Treasury to promulgate
regulations to carry out the provisions of
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regulations implementing the changes
directed by TFTEA.
This proposed rule is intended to
authorize, and in some cases require,
CBP personnel to disclose, either at the
time of detention of suspect
merchandise or after seizure of violative
merchandise, information that might
reveal commercial or financial
information otherwise protected by the
Trade Secrets Act. The proposed rule
replicates the procedural safeguards
implemented in the trademark
regulations at 19 CFR 133.21 to mitigate
potential risks from the disclosure of
protected information. For more
information on these safeguards, see
CBP Dec. 15–12, published in the
Federal Register (80 FR 56370) on
September 18, 2015, effective October
19, 2015.
III. Description of Proposed
Amendments to Part 133
CBP is proposing changes to part 133
of the CBP regulations to implement
certain provisions of TFTEA. First, CBP
is proposing to amend the scope
provision at § 133.0 to include TFTEAmandated disclosures. Next, CBP is
proposing to amend subpart E of part
133 regarding detention of merchandise
suspected of violating the copyright
laws, seizure of such violative
merchandise, and disclosure of
information to right holders. The
proposed changes are intended to
require pre-seizure disclosure of certain
information to right holders if review of
the information, or examination or
testing of the imported merchandise, by
the right holder would assist CBP in its
determination as to whether suspect
merchandise does, in fact, violate the
copyright laws. The proposed
amendments to subpart E also provide
procedural safeguards to limit the
release of information concerning nonviolative shipments and simplify the
detention process relative to goods
suspected of violating the copyright
laws.
Also, CBP is proposing a new subpart
F to part 133 (existing subpart F is
proposed to be redesignated as new
subpart G). Proposed subpart F
prescribes the disclosure of information,
and potential provision of samples,
upon detention or seizure of goods
suspected of violating the DMCA to
enhance CBP’s ability to prohibit
circumvention devices from being
entered into the United States. Prior to
seizure, CBP will disclose information
appearing on the imported merchandise
to the owner of the recorded copyright
who employs the copyright protection
measure that the imported merchandise
is suspected of circumventing, if it will

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assist CBP in determining whether the
merchandise is violative. Similarly,
when CBP seizes violative merchandise,
it will disclose information appearing
on the imported merchandise, as well as
information received in connection with
the importation, to certain right holders.
A. Subpart E to Part 133: Importations
Violating Copyright Laws
CBP is proposing several amendments
to subpart E of part 133 of the CBP
regulations. The proposed changes
would simplify procedures and
strengthen CBP’s ability to enforce the
copyright laws and the prohibition
against the importation of piratical
articles.
1. Definition of ‘‘Piratical Articles’’
Section 133.42(a) currently provides
that ‘‘[i]nfringing copies or
phonorecords are ‘piratical’ articles.’’ To
more accurately define ‘‘piratical
articles’’ for enforcement purposes, CBP
is proposing to amend paragraph (a) of
§ 133.42 to define ‘‘piratical articles’’ as
those that constitute unlawful (made
without the authorization of the
copyright owner) copies or
phonorecords of a recorded copyright.
Eligible copyrights may be recorded
with CBP using the Intellectual Property
Rights e-Recordation (IPRR) application
found at https://iprr.cbp.gov/.
2. Procedures on Suspicion of Piratical
Copies
Existing § 133.43 sets forth the
procedures CBP employs when it
suspects that imported articles may be
infringing copies or phonorecords of
recorded copyrights and provides for:
(1) Notice of detention of suspected
articles to the importer and to the
copyright owner, including the
disclosure of certain information; (2) the
release of redacted samples of suspected
articles to the copyright owner; (3) the
release of the goods in the case of
inaction by the copyright owner; (4) in
cases where the copyright owner makes
a written demand for the exclusion of
the suspected articles, a bonding
requirement and exchange of briefs
process culminating in submission to
CBP for administrative review; and (5)
alternative procedures to the
administrative process (court action).
CBP believes that the procedure
requiring a copyright owner to file a
written demand for exclusion of the
suspected infringing copies, and
requiring an exchange of additional
evidence, briefs, and other pertinent
material to substantiate a claim or
denial of piracy between the parties is
ineffective for enforcing the Copyright
Act of 1976 and is inconsistent with

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TFTEA. CBP believes that these
procedures are an outdated and
inefficient mechanism to address
situations where CBP has a suspicion
that certain goods may be piratical.
These provisions are rarely used and
unduly burdensome on CBP and all
other parties involved. Essentially, these
procedures limit CBP’s ability to
conduct the required examination and
render its decision in a timely and
efficient manner. The related provision,
§ 133.44, prescribes the actions to be
taken when CBP sustains or denies a
claim of piracy under § 133.43.
Accordingly, CBP is proposing to
remove §§ 133.43 and 133.44 in their
entirety from title 19 of the CFR.
However, CBP proposes to retain the
procedures regarding detention of
suspected infringing copies or
phonorecords of recorded copyrights,
notice of such detention to the importer
and to the copyright owner, and the
disclosure of certain information and
release of redacted samples to the
copyright owner currently provided for
in § 133.43 in a revised § 133.42. Section
133.42 currently provides that the
importation of infringing copies or
phonorecords of works copyrighted in
the United States is prohibited and sets
forth provisions regarding the seizure
and forfeiture of such infringing works.
CBP proposes to amend and expand
§ 133.42 as follows to provide more
comprehensive regulations on the
manner in which it detains suspected
piratical articles, seizes piratical
articles, and exchanges information
with affected parties:
• Proposed § 133.42(a) sets forth
definitions for purposes of part 133.
• Proposed § 133.42(b)(1) prescribes
that CBP may detain imported articles
suspected of constituting a piratical
copy of a copyrighted work for which a
claim to copyright has been recorded
with CBP.
• Proposed § 133.42(b)(2)(i)(A)
specifies that, pursuant to 19 CFR
151.16(c) and 19 U.S.C. 1499(c)(2), a
notice of detention is issued to the
importer within five business days from
the date of CBP’s decision to detain
suspect merchandise. CBP will also
inform the importer that certain
information may already have been
disclosed to the owner of the recorded
copyright, and in any event, CBP will
disclose such information to the owner
no later than the date of issuance of the
detention notice.
• Proposed § 133.42(b)(2)(i)(B) sets
forth that CBP may disclose to the
owner of the recorded copyright
information that appears on the
detained merchandise and/or its retail
packaging, including unredacted

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photographs, images, or samples, as
described in proposed paragraph (b)(3)
of this section, unless the importer
provides information within seven
business days of issuance of the
detention notice that is sufficient for
CBP to determine that the detained
merchandise is not piratical.
• Proposed § 133.42(b)(2)(ii) provides
that if the importer does not provide
information to CBP within seven
business days of issuance of the
detention notice that is sufficient for
CBP to determine that the detained
merchandise is not piratical, and CBP
still suspects the merchandise to be
violative, CBP will proceed with
disclosure to the owner of the recorded
copyright as described in proposed
paragraph (b)(3) of this section, if CBP
concludes that disclosure would assist
CBP in determining whether the
merchandise is piratical, and such
disclosure would not compromise an
ongoing law enforcement investigation
or national security.
• Proposed § 133.42(b)(3) sets forth
the information CBP will disclose to the
owner of the recorded copyright
pursuant to paragraph (b)(2)(ii) if CBP
concludes that disclosure would assist
CBP in determining whether the
merchandise is piratical, and such
disclosure would not compromise an
ongoing law enforcement investigation
or national security. This includes
information appearing on the goods and
their retail packaging and unredacted
images or photographs of the
merchandise. Proposed § 133.42(b)(3)
also provides that CBP may release a
sample to the owner of the recorded
copyright, subject to the bonding and
return requirements of proposed
§ 133.42(c).
• Proposed § 133.42(b)(4) describes
the basic importation information to be
disclosed to the owner of the recorded
copyright.
• Proposed § 133.42(b)(5) provides for
disclosure of redacted photographs or
images, or the provision of redacted
samples, including retail packaging or
labels, to the owner of the recorded
copyright. Identifying information to be
redacted would include serial numbers;
dates of manufacture; lot codes; batch
numbers; universal product codes; the
name or address of the manufacturer,
exporter, or importer of the
merchandise; or any markings that
could reveal the name or address of the
manufacturer, exporter, or importer of
the merchandise. CBP may release the
sample identified in this paragraph
when the owner of the recorded
copyright furnishes to CBP a bond in the
form and amount specified by CBP. CBP

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may demand the return of the sample at
any time.
• Proposed § 133.42(c) pertains to the
disclosure of unredacted photographs or
images, or the provision of unredacted
samples, including retail packaging or
labels, to the owner of the recorded
copyright under paragraph (b) of this
section. Paragraph (c) provides that,
with the disclosure of the photographs
or images, or provision of the sample,
CBP will notify the owner of the
recorded copyright that some or all of
the information it receives may be
subject to the protections of the Trade
Secrets Act, is being issued to the owner
of the recorded copyright by CBP under
an exception to the Trade Secrets Act,
and is not to be used by the owner of
the recorded copyright (nor by parties
related to the owner of the recorded
copyright or agents thereof) for any
purpose other than to assist CBP in
determining whether the merchandise
described in the notice of detention is
piratical. CBP will release the sample
identified in this paragraph when the
owner of the recorded copyright
furnishes to CBP a bond in the form and
amount specified by CBP. CBP may
demand the return of the sample at any
time.
• Proposed § 133.42(d) provides for
disclosure of unredacted photographs or
images, including photographs or
images of retail packaging or labels, to
the importer any time after presentation
of the suspect goods to CBP for
examination. Proposed § 133.42(d) also
provides that, upon the importer’s
request, CBP will provide samples to the
importer, including samples of retail
packaging or labels, any time after
presentation of the suspect goods to CBP
for examination.
• Proposed § 133.42(e) provides that,
in cases involving the seizure of
piratical articles, CBP will disclose to
the owner of the recorded copyright
certain limited information pertaining to
the attempted importation.
• Proposed § 133.42(f) provides that,
after seizure, CBP will provide—upon
receipt of a request by the owner of the
recorded copyright and upon that owner
furnishing a bond to CBP in the form
and amount specified by CBP—
photographs, images, or samples,
including retail packaging or labels, to
the owner of the recorded copyright.
CBP may demand the return of the
sample at any time.
• Proposed § 133.42(g) provides for
the consent of the owner of the recorded
copyright to allow entry of the seized
and forfeited merchandise, or other
disposition subject to the importer’s
right to petition for relief under § 171.

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B. New Re-Designated Subpart F to Part
133: Enforcement Provisions for the
Digital Millennium Copyright Act
(DMCA)
In 1998, Congress enacted the DMCA.
Among other things, the DMCA
prohibits the circumvention of
technological measures used by
copyright owners to protect their works.
Section 1201(a)(3)(B) of title 17 of the
United States Code (17 U.S.C.
1201(a)(3)(B)) provides that, ‘‘[a]
technological measure ‘effectively
controls access to a work’ if the
measure, in the ordinary course of its
operation, requires the application of
information, or a process or a treatment,
with the authority of the copyright
owner, to gain access to the work.’’
Section 1201(b)(2)(B) of title 17 of the
United States Code (17 U.S.C.
1201(b)(2)(B)) provides that ‘‘[a]
technological measure ‘effectively
protects a right of a copyright owner
under this title’ if the measure, in the
ordinary course of its operation,
prevents, restricts, or otherwise limits
the exercise of a right of a copyright
owner under this title.’’ Pursuant to
section 303(b)(3) of TFTEA, the
Secretary of the Treasury must prescribe
regulations establishing procedures
relative to the seizure of articles the
importation of which is prohibited by
and found to violate the DMCA.
Although the current CBP regulations
do not specifically provide for the
detention and seizure of articles that
constitute violations of the DMCA, CBP
has implemented the DMCA by
providing CBP personnel with internal
enforcement guidelines and advice on
how to enforce the DMCA. Where CBP
finds that certain devices violate the
DMCA by circumventing a recorded
copyright owner’s copyright protection
measure, the goods are currently subject
to seizure and forfeiture under 19 U.S.C.
1595a(c)(2)(C) for a violation of the
DMCA (17 U.S.C. 1201). Section 303 of
TFTEA amended section 596(c)(2) of the
Tariff Act of 1930 (19 U.S.C.
1595a(c)(2)) by adding subparagraph G
(19 U.S.C. 1595a(c)(2)(G)) for DMCA
violations, which, in essence,
accomplishes the same enforcement as
that carried out under the internal
enforcement guidelines. However, the
current CBP internal enforcement
guidelines and advice on how to enforce
the DMCA include neither the postseizure DMCA disclosure to those
persons injured by DMCA violations nor
the establishment of a list of those
persons approved to receive information
post-seizure, as provided for in section
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regulations will replace the existing
internal enforcement guidelines.
Pursuant to 19 U.S.C. 1628a, CBP is
proposing to add regulatory provisions
for the detention and seizure of articles
that constitute violations under the
DMCA. Specifically, CBP is proposing
to re-designate existing subpart F in part
133, which contains regulations
pertaining to procedures following
forfeiture or assessment of liquidated
damages, as a new subpart G, and to add
a new subpart F with a new § 133.47,
setting forth regulatory provisions that
prescribe the detention and seizure of
certain articles that violate the DMCA.
The regulatory provisions proposed in
§ 133.47 closely mirror the comparable
provisions for trademark as laid out in
§ 133.21 and copyright as laid out in
proposed § 133.42, described above.
Pursuant to 19 U.S.C. 1499(c)(2), CBP
will issue a notice of detention to the
importer within five business days from
the date of CBP’s decision to detain
suspect merchandise. CBP will inform
the importer that the importer may
provide information within seven
business days of issuance of the
detention notice to help CBP to
determine whether the detained
merchandise violates the DMCA. After
that period, if CBP still suspects the
merchandise may be violative, CBP will
disclose information appearing on the
detained merchandise and/or its retail
packaging to the owner of the recorded
copyright who employs a copyright
protection measure, if CBP concludes
that the disclosure would assist CBP in
its determination and disclosure would
not compromise and ongoing law
enforcement investigation or national
security. Disclosed information may
also include unredacted samples, if
necessary to assist CBP in determining
whether or not the detained
merchandise violates the DMCA. The
detention will be for a period of up to
30 days from the date on which the
merchandise is presented for
examination. In accordance with 19
U.S.C. 1499(c), if, after the detention
period, the article is not released, the
article will be deemed excluded for
purposes of 19 U.S.C. 1514(a)(4).
In the event that CBP determines that
such detained articles violate 17 U.S.C.
1201, CBP will seize the articles under
19 U.S.C. 1595a(c)(2)(G) and institute
forfeiture proceedings in accordance
with 19 CFR part 162. CBP will, within
30 business days of the seizure, notify
the person CBP determines is injured by
the violation of the DMCA and will
disclose certain information regarding
the shipment to such person, provided
that person meets the requirements
detailed below. In the event that articles

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released from CBP custody are
determined to be violative, proposed
§ 133.48 provides for redelivery of the
articles. Articles determined by CBP not
to violate 17 U.S.C. 1201 will be
released. Importers may petition for
relief from the seizure and forfeiture
under the provisions of 19 CFR part 171.
Articles that have been seized and
forfeited to the U.S. Government under
part 133 will be disposed of in
accordance with 19 CFR 133.52(b).
The proposed regulations define
persons eligible for pre-seizure and
post-seizure DMCA disclosures. Under
the proposed regulations, a person
eligible for pre-seizure disclosures is the
owner of a recorded copyright who
employs a copyright protection measure
that may have been circumvented or
attempted to be circumvented by
articles that violate the importation
prohibitions of the DMCA. Likewise, the
proposed regulations define an injured
person authorized to receive postseizure DMCA disclosures as the owner
of a recorded copyright who employs a
copyright protection measure that has
been circumvented or attempted to be
circumvented by articles seized for
violation of the importation prohibitions
of the DMCA, and who has successfully
applied to CBP for DMCA protections.
Pursuant to section 303(b) of TFTEA,
CBP will establish and maintain a list of
the persons who have successfully
applied to CBP to receive disclosures
from CBP when injured by violations of
the DMCA. Under proposed
§ 133.47(b)(2)(iii), CBP will publish a
notice in the Federal Register
announcing the establishment of a list of
approved persons. Persons who believe
they have been injured by a DMCA
violation may request to be added to the
list through a separate application to the
IPR Branch supplemental to an
application to record a copyright. After
the list has been established, CBP will
publish a notice in the Federal Register
when the list is revised.
IV. Other Amendments
As a consequence of the proposed
removal of §§ 133.43 and 133.44, it is
also proposed to revise a related
provision in § 113.70, which sets forth
bond conditions to indemnify the
United States for detention of
copyrighted material. CBP proposes to
revise 19 CFR 113.70 to set forth, in one
centralized location, the bond
conditions for an IPR owner to obtain
samples of imported merchandise
suspected of being infringing. Currently,
there is bond language that pertains to
IPR sample bonds in various provisions
throughout 19 CFR part 133. To reduce
redundancy, CBP is proposing to add a

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cross reference to the new IPR sample
bond conditions set forth in § 113.70 in
proposed § 133.21(b)(5), (c)(2), and (f),
§ 133.25(c), § 133.42(b)(5), (c)(2), and (f),
and § 133.47(b)(5), (c)(2), and (f), and to
consolidate duplicated bond condition
language from these provisions.
Accordingly, CBP is proposing to
remove references to § 133.43 in existing
§ 113.42.
As noted above, CBP is proposing
additional amendments to 19 CFR
133.21 to clarify the ‘‘identifying
information’’ that CBP will redact prior
to disclosing information pursuant to
§ 133.21(b)(5). Section 133.21(b)(5)
provides examples of information that
CBP would redact prior to disclosure
under this provision, including ‘‘any
mark that could reveal the name or
address of the manufacturer, exporter,
or importer of the merchandise.’’ CBP is
proposing to replace the word ‘‘mark’’
with the more general term ‘‘markings,’’
as ‘‘mark’’ is a more narrowly defined
term of art. CBP is proposing further
changes to conform § 133.21(b) and (f) to
the related copyright (§ 133.42(b) and
(f)) and DMCA (§ 133.47(b) and (f))
provisions proposed in this document.
In addition, CBP is proposing
conforming amendments to § 133.25.
These include replacing ‘‘trademark
owner’’ with ‘‘owner of the recorded
mark’’ and replacing references to the
legacy Customs Service with CBP. CBP
is proposing to amend § 133.51(a), to
reflect the addition of proposed
§ 133.48, which will provide for
redelivery of merchandise found to
violate the DMCA. Similarly, CBP is
proposing to amend § 133.52(b) to
account for the alternative dispositions
of seized merchandise reflected in
proposed §§ 133.42(g) and 133.47(g).
Section 151.16 of title 19 of the CFR
provides for the detention of
merchandise, and states that CBP will
make a final determination with respect
to the admissibility of detained
merchandise within 30 days after the
merchandise has been presented to CBP
for examination. Within § 151.16,
paragraph (a) identifies certain
categories of articles that are excepted
from this provision, including
detentions arising from ‘‘possibly
piratical copies (see part 133, subpart E,
of this Chapter).’’ The current detention
procedures in subpart E of 19 CFR part
133 allow up to 120 days for an
importer or right holder of a suspect
article to provide CBP with evidence,
briefs, or other pertinent information to
substantiate a claim or denial of
infringement, prior to CBP’s issuance of
an admissibility determination. Due to
the proposed amendments to § 133.42,
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the data exchange time frames and
require CBP to issue a final
determination with respect to the
admissibility of detained merchandise
within 30 days after the merchandise
has been presented to CBP for
examination, there is no longer any
reason to exempt possibly piratical
copies or phonorecords from the 30-day
detention period set forth in § 151.16.
Accordingly, this document proposes to
amend 19 CFR 151.16(a) by removing
the reference to ‘‘possibly piratical
copies (see part 133, subpart E, of this
Chapter)’’ and by adding a crossreference to 19 CFR 151.16(c) to the
notice provisions set forth in
§§ 133.42(b)(2) and 133.47(b)(2). This
document also proposes nonsubstantive editorial changes to
§ 151.16.
Likewise, this document proposes to
amend 19 CFR 177.0 by removing the
existing exception for copyright
determinations under part 133.
Currently, § 133.43 provides a unique
process for determinations of copyright
infringement, an exception to the
rulings process laid out in part 177. As
a consequence of the proposed changes
to §§ 133.42 and 133.43, that process
will be replaced. As a result, rulings
related to copyright determinations may
be requested pursuant to part 177, and
no longer constitute an exception to the
process laid out therein.
In addition, this document proposes
to augment the existing personal use
exemption in 19 CFR 148.55, and clarify
its application. Currently, this
exemption provides for the entry of
limited quantities of merchandise that
otherwise would be prohibited from
entry for trademark violations, when the
merchandise accompanies any
individual arriving in the United States.
However, 17 U.S.C. 602(a)(3)(B)
provides a similar personal use
exemption permitting the entry of
merchandise otherwise prohibited for
violating copyright law, under certain
conditions. CBP has proposed
amendments to § 148.55, to reflect this
statutory exemption. The conditions are
set forth in existing § 148.55(b), which
is not being proposed for amendment.
The conditions are that (1) the
exemption ‘‘shall not be granted to any
person who has taken advantage of the
exemption for the same type of article
within the 30-day period immediately
prior to his arrival in the United States,’’
and (2) ‘‘[i]f an article which has been
exempted is sold within one year of the
date of importation, the article or its
value (to be recovered from the
importer), is subject to forfeiture’’
(except in the case of a ‘‘sale subject to

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judicial order or in the liquidation of an
estate’’).
This document also proposes
amendments to the general and specific
authority citations to part 133 to more
accurately reflect the statutory authority
that pertains to the part and that which
pertains more specifically to particular
sections within part 133.
Executive Orders 12866, 13563, and
13771
Executive Orders 12866 (‘‘Regulatory
Planning and Review’’) and 13563
(‘‘Improving Regulation and Regulatory
Review’’) direct agencies to assess the
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. Executive
Order 13771 (‘‘Reducing Regulation and
Controlling Regulatory Costs’’) directs
agencies to reduce regulation and
control regulatory costs and provides
that ‘‘for every one new regulation
issued, at least two prior regulations be
identified for elimination, and that the
cost of planned regulations be prudently
managed and controlled through a
budgeting process.’’
This rule is a significant regulatory
action under section 3(f) of Executive
Order 12866. Accordingly, OMB has
reviewed this regulation. As the impacts
of this rule are de minimis, this rule is
exempt from Executive Order 13771.
See OMB’s Memorandum, ‘‘Guidance
Implementing Executive Order 13771,
Titled ‘Reducing Regulation and
Controlling Regulatory Costs’ ’’ (April 5,
2017).
One of CBP’s roles is to safeguard the
U.S. economy from the importation of
goods that violate intellectual property
rights. Under current regulations, if CBP
suspects that a shipment may be
violative, it can share redacted samples
of the suspect imported good with a
right holder.1 To implement TFTEA’s
intellectual property rights provisions,
CBP is proposing regulatory changes
that will, among other things, allow it to
share unredacted images of suspect
imports with right holders, if
examination by right holders would
assist CBP’s determination.
1 Note that this rule does not alter CBP’s ability
to provide redacted samples of an import to a right
holder without prior notification to the importer.

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Sharing these unredacted samples and
images with right holders may provide
access to information about the importer
protected by the Trade Secrets Act. The
proposed rule establishes a procedure
under which, following the notice to the
importer required by 19 U.S.C. 1499, the
importer has seven business days to
establish to CBP that the suspect
imports are not piratical and are instead
admissible. If the importer is unable to
demonstrate the admissibility of its
imports within this timeframe, CBP will
share information with the right holder
by disclosing or releasing unredacted
samples of the imports in question.
As CBP is establishing a new process
for copyrights, it does not have data on
the number of times CBP suspects
shipments are piratical. However, in
2012 CBP published an interim final
rule that established similar procedures
for trademarks. (77 FR 24375,
September 24, 2012). For analytical
purposes, CBP can assume that this rule
will have similar effects after adjusting
for the differing volumes. Between fiscal
years 2014 and 2018, CBP sent out an
average of 824 detention letters every
fiscal year for suspected trademark
infringements. Based on the proportion
of live trademark recordations 2
available to support the agency’s IPR
seizures every fiscal year, relative to the
copyright recordations, CBP estimates
an average of approximately 21,423
seizures based on trademark, 8,881
based on copyright, and 116 DMCA
seizures. If the number of detention
letters is proportional to the number of
seizures, CBP would estimate that this
rule will result in 345 more detention
letters for possible copyright infringing
importations.
CBP estimates that the procedure to
demonstrate that the imports are not
piratical will take two hours per affected
importer at a cost of $29.76 per hour.3 4
2 Source: CBP’s IPRiS database. Sampling
methodology averaged five equally spaced dates in
every fiscal year to estimate the IPRiS live
recordations available for IPR seizures (95% CI, p
= 0.05) annually. CBP took several sample counts
per year as opposed to a single annual count to
ensure a representative measure as IPRiS
recordations enter and expire throughout the year.
3 Source: U.S. Bureau of Labor Statistics.
Occupational Employment Statistics, ‘‘May 2017
National Occupational Employment and Wage
Estimates, United States- Median Hourly Wage by
Occupation Code.’’ Updated March 30, 2018.
Available at https://www.bls.gov/oes/2017/may/
oes_nat.htm. Accessed June 11, 2018.
4 The total compensation to wages and salaries
ratio is equal to the calculated average of the 2017
quarterly estimates (shown under Mar., June, Sep.,
Dec.) of the total compensation cost per hour
worked for Office and Administrative Support
occupations ($26.2600) divided by the calculated
average of the 2017 quarterly estimates (shown
under Mar., June, Sep., Dec.) of wages and salaries
cost per hour worked for the same occupation

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This is based on the existing
information collection for the Notice of
Detention (OMB Control Number 1651–
0073), which is being updated for this
rulemaking. CBP estimates that
importers will bear an opportunity cost
as a result of the higher number of
detention notices caused by this rule.
CBP estimates that this opportunity cost
will total $20,534 (345 * 2 * $29.76) for
copyright detentions and $238 (4 * 2 *
29.76) for DMCA detentions for a total
monetized cost of $20,534.
CBP is also proposing to formalize the
existing practices used to enforce the
DMCA. As discussed above, in 1998,
Congress enacted the DMCA. The
DMCA prohibits the importation of
devices used to circumvent the
copyright protection measures copyright
owners use to protect their works.
Although current regulations do not
specifically provide for detention and
seizure of articles that constitute
violations of the DMCA, CBP has
enforced the DMCA by providing CBP
personnel with internal enforcement
guidelines and advice on how to enforce
DMCA violations. In FY 2016 there were
approximately 70 DMCA seizures. It is
possible that the provisions of this rule
that were already discussed will result
in a small increase in DMCA seizures.
TFTEA requires CBP to formalize the
foregoing processes with respect to the
DMCA. The formalization of these
existing practices in regulations does
not change current practice, so this
provision will not have additional
impacts if this rule is finalized.
In addition to the proposed use of
unredacted samples, CBP is proposing
to amend the detention procedures
applicable to imported articles that are
suspected of being a piratical copy or
phonorecord of a copyrighted work. The
current detention procedures in the
regulations allow up to 120 days for an
importer or right holder of a suspect
article to provide CBP with evidence,
briefs, or other pertinent information to
substantiate a claim or denial of
infringement, prior to CBP’s issuance of
an admissibility determination. To
expedite this process, CBP is proposing
to amend the regulations to require the
agency to render an admissibility
decision within 30 days from the date
category ($17.7425). Source of total compensation
to wages and salaries ratio data: U.S. Bureau of
Labor Statistics. Employer Costs for Employee
Compensation. Employer Costs for Employee
Compensation Historical Listing March 2004–
March 2018, ‘‘Table 3. Civilian workers, by
occupational group: employer costs per hours
worked for employee compensation and costs as a
percentage of total compensation, 2004–2018 by
respondent type.’’ March 2018. Available at https://
www.bls.gov/web/ecec/ececqrtn.pdf. Accessed June
11, 2018.

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the articles are presented to CBP for
examination. As the current detention
procedures are seldom used, according
to CBP subject matter experts, CBP does
not believe the proposed changes will
impose a significant effect on the public.
The Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et. seq.) (RFA), as amended
by the Small Business Regulatory
Enforcement and Fairness Act of 1996,
requires agencies to assess the impact of
regulations on small entities. A small
entity may be a small business (defined
as any independently owned and
operated business not dominant in its
field that qualifies as a small business
per the Small Business Act); a small notfor-profit organization; or a small
governmental jurisdiction (locality with
fewer than 50,000 people). Section 604
of the RFA requires an agency to
perform a regulatory flexibility analysis
for a rule unless the agency certifies
under section 605(b) that the regulatory
action would not have a significant
economic impact on a substantial
number of small entities.
As described in the Executive Orders
12866, 13563, and 13771 analysis above,
CBP estimates that this rule will result
in the issuance of 345 additional notices
of detention. CBP’s current examination
policies, use of shared enforcement
systems, and targeting criteria that take
into account previous examinations
when determining risk make it unlikely
that an importer who receives a notice
of detention with this rule will be
required to repeatedly prove the
admissibility of their imports.5 As such,
CBP assumes for the purposes of this
analysis that the number of affected
importers from this rule will be equal to
the number of additional detention
notices resulting from this rule—345—
with each importer receiving only one
detention notice. To the extent that an
importer must prove the admissibility of
their imports more than once with this
rule, the number of importers affected
by this rule would be lower and the cost
of this rule per affected importer would
be higher.
These importers are not centered in
any particular industy; any importer of
goods covered by a recorded copyright
may be affected by this rule if CBP has
a reasonable suspicion to believe their
5 CBP reserves the right to detain any imported
merchandise, even if an importer has previously
shown that its merchandise is admissible. This will
depend on the particulars of the importation.
Previous imporations are taken into account in the
risk profile, so having proven the authenticity of an
importation in the past makes it less likely that an
importer will receive a Notice of Detention for
subsequent importations.

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imported merchandise may constitute a
piratical copy and CBP cannot
determine if an import is a piratical
copy or prohibited circumvention
device without the use of the provisions
of this rule. CBP has conducted a study
of importers to determine how many are
small entities and has concluded that
the vast majority (about 88 percent) of
importers are small entities.6 Therefore,
CBP believes this rule may affect a
substantial number of small entities.
Although the proposed rule, if
adopted, may affect a substantial
number of small entities, CBP believes
the economic impact would not be
significant. As described in the
Executive Orders 12866, 13563, and
13771 section of this document, CBP
estimates that it takes an importer two
hours to provide proof of the
admissibility of an import to CBP. CBP
estimates the average wage of an
importer is $29.76 per hour. Thus, CBP
estimates it will cost a small entity
$59.52 to prove the admissibility of its
import with this rule. CBP does not
believe $59.52 constitutes a significant
economic impact.
CBP recognizes that repeated
inquiries into the admissibility of an
importer’s imports could eventually rise
to the level of a significant economic
impact. However, it is unlikely that
importers will be repeatedly required to
prove the admissibility of their imports,
as previously mentioned. Additionally,
CBP does not anticipate law-abiding
importers to be subject to the provisions
in this rule on a repeated basis. Once
CBP has determined the admissibility of
an importation, it will record that
information in the system so it can be
viewed by CBP import specialists on
future importations and successful
previous imporations are a favorable
factor in the importation’s risk profile.
Further, CBP notes that providing this
information to CBP is optional on the
part of the importer. Therefore, CBP
believes there will not be a significant
economic impact on small entities.
Accordingly, although this rule may
have an effect on a substantial number
of small entities, as discussed above,
CBP believes that an estimated cost of
$59.52 to an importer does not
constitute a significant economic
impact. Thus, CBP certifies this
regulation would not have a significant
economic impact on a substantial
number of small entities.
6 See

‘‘CBP Analysis of Small Importers,’’
November 2018. Available in the docket of this
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Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507),
the collections of information for this
document are included in an existing
collection for Notices of Detention
(OMB control number 1651–0073). An
agency may not conduct, and a person
is not required to respond to, a
collection of information unless the
collection of information displays a
valid control number assigned by OMB.
The burden hours related to the Notice
of Detention for OMB control number
1651–0073 are as follows:
Number of Respondents: 1,695.
Number of Responses: 1.
Time per Response: 2 hours.
Total Annual Burden Hours: 3,390.
Because CBP estimates that the
availability of the procedures in this
proposed rule will increase the number
of Notices of Detention issued for IPR
violations, there is an increase in
burden hours under this collection with
this proposed rule.
Signing Authority
This rulemaking is being issued in
accordance with 19 CFR 0.1(a)(1),
pertaining to the authority of the
Secretary of the Treasury (or that of his
or her delegate) to approve regulations
concerning copyright enforcement.
List of Subjects
19 CFR Part 113
Bonds, Customs duties and
inspection, Imports, Surety bonds.
19 CFR Part 133
Bonds, Circumvention devices, Copy
or simulating trademarks, Copyrights,
Counterfeit goods, Customs duties and
inspection, Demand for redelivery,
Detentions, Disclosure, Labeling,
Liquidated damages, Piratical copies,
Phonorecords, Recordation, Restricted
merchandise, Seizures and forfeitures,
Trademarks, Trade names.
19 CFR Part 148
Copyright, Customs duties and
inspection, Trademarks.
19 CFR Part 151
Customs duties and inspection,
Examination, Imports, Penalties,
Reporting and recordkeeping
requirements, Sampling and testing.
19 CFR Part 177
Administrative practice and
procedure, Government procurement,
Reporting and recordkeeping
requirements.

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Proposed Amendments to the CBP
Regulations
For the reasons stated above in the
preamble, CBP proposes to amend 19
CFR parts 113, 133, 148, 151 and 177 as
follows:
PART 113—CBP BONDS
1. The general authority citation for
part 113 continues to read as follows:

■

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

*

*
*
*
*
2. Section 113.42 is revised to read as
follows:

■

§ 113.42 Time period for production of
documents.

Except when another period is fixed
by law or regulations, any document for
the production of which a bond or
stipulation is given must be delivered
within 120 days from the date of notice
from CBP requesting such document. If
the period ends on a Saturday, Sunday,
or holiday, delivery on the next
business day will be accepted as timely.
■ 3. Section 113.70 is revised to read as
follows:
§ 113.70 Bond conditions for owners of
recorded marks or recorded copyrights to
obtain samples from CBP relating to
importation of merchandise suspected of
infringing recorded marks or recorded
copyrights, or circumventing copyright
protection measures.

Prior to obtaining samples of
imported merchandise pursuant to
§§ 133.21, 133.25, 133.42, or 133.47 of
this chapter, for suspected infringement
of a recorded mark or recorded
copyright, or suspected circumvention
of a protection measure safeguarding a
recorded copyright, the owner of the
recorded mark or the recorded copyright
must furnish to CBP a single transaction
bond in the amount specified by CBP
containing the conditions listed in this
section.
Bond Conditions for Owners of
Recorded Marks or Recorded
Copyrights To Obtain Samples From
CBP Relating to Importation of
Merchandise Suspected of Infringing
Such Recorded Marks or Recorded
Copyrights, or Circumventing Copyright
Protection Measures
(a) Agreement to use sample for
limited purpose of assisting CBP. If CBP
provides to an owner of a recorded mark
or a recorded copyright a sample of
imported merchandise suspected of
infringing the recorded mark or
copyright, or suspected of
circumventing a copyright protection
measure, including samples provided
pursuant to §§ 133.21, 133.25, 133.42, or

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133.47 of this chapter, the obligors
(principal and surety) agree that such
samples may only be used for the
limited purpose of providing assistance
to CBP in enforcing intellectual property
rights.
(b) Agreement to indemnify—(1)
Improper use of sample. If the sample
identified in paragraph (a) of this
section is used by the owner of the
recorded mark or the recorded copyright
for any purpose other than to provide
assistance to CBP in enforcing
intellectual property rights, the obligors
(principal and surety) agree to
indemnify the importer or owner of the
imported merchandise, in the amount
specified by CBP, against any loss or
damage resulting from the improper use.
(2) Physical loss, damage, or
destruction of disclosed sample. The
owner of a recorded mark or a recorded
copyright must return any sample
identified in paragraph (a) of this
section upon demand by CBP or at the
conclusion of any examination, testing,
or similar procedure performed on the
sample. If the sample identified in
paragraph (a) of this section is lost,
damaged, or destroyed as a result of
CBP’s furnishing it to such owner, the
obligors (principal and surety) agree to
indemnify the importer or owner of the
imported merchandise, in the amount
specified by CBP, against any resulting
loss or damage.
PART 133—TRADEMARKS, TRADE
NAMES, AND COPYRIGHTS
4. The general authority citation for
part 133 is revised to read as follows,
the specific authority for §§ 133.21 to
133.25 is removed, and a specific
authority citation for § 133.47 is added
to read as follows:

■

Authority: 15 U.S.C. 1124, 1125, 1127; 17
U.S.C. 101, 104, 106, 601, 602, 603; 18 U.S.C.
1905; 19 U.S.C. 66, 1202, 1499, 1526, 1595a,
1623, 1624, 1628a; 31 U.S.C. 9701.
Section 133.47 also issued under 17 U.S.C.
1201.

*

*

§ 133.0

*

*

*

Scope.

5. In § 133.0, revise the last sentence
to read as follows:
* * * It also sets forth the procedures
for the disposition, including release to
the importer in appropriate
circumstances, of articles bearing
prohibited marks or names, piratical
articles, and prohibited circumvention
devices, as well as the disclosure of
information concerning such articles
when such disclosure would not
compromise an ongoing law
enforcement investigation or national
security.

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■

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6. Amend § 133.21 by:
a. Removing the words ‘‘owner of the
mark’’ wherever they appear and adding
in their place the words ‘‘owner of the
recorded mark’’;
■ b. Revising paragraphs (b)(2)(ii) and
(b)(3) and the second sentence of
paragraph (b)(4) introductory text;
■ c. Removing the word ‘‘mark’’ and
adding in its place the word ‘‘markings’’
in the second sentence of paragraph
(b)(5);
■ d. Revising the third sentence of
paragraph (b)(5) and the first sentence of
paragraph (c)(2) and paragraph (f).
The revisions read as follows:
■
■

§ 133.21 Articles suspected of bearing
counterfeit marks.

*

*
*
*
*
(b) * * *
(2) * * *
(ii) Failure of importer to respond or
insufficient response to notice. Where
the importer does not provide
information within the seven business
day response period, or the information
is insufficient for CBP to determine that
the merchandise does not bear a
counterfeit mark, CBP will proceed with
the disclosure of information as
described in paragraph (b)(3) of this
section to the owner of the recorded
mark if CBP concludes that the
disclosure would assist CBP in its
determination, and provided that the
disclosure would not compromise an
ongoing law enforcement investigation
or national security. CBP will notify the
importer in case of any such disclosure.
(3) Disclosure to owner of the
recorded mark of information appearing
on detained merchandise and/or its
retail packaging, including unredacted
photographs, images or samples. CBP
will disclose information appearing on
the merchandise and/or its retail
packaging (including labels) and images
(including photographs) of the
merchandise and/or its retail packaging
in its condition as presented for
examination (i.e., an unredacted
condition) if CBP concludes that the
disclosure of information to the owner
of the mark as described in paragraph
(b)(2)(ii) of this section would assist
CBP in its determination, and provided
that disclosure would not compromise
an ongoing law enforcement
investigation or national security. CBP
may also provide a sample of the
merchandise and/or its retail packaging
in its condition as presented for
examination to the owner of the
recorded mark. The release of a sample
will be in accordance with, and subject
to, the bond and return requirements of
paragraph (c) of this section. The
disclosure may include any serial

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numbers, dates of manufacture, lot
codes, batch numbers, universal product
codes, or other identifying markings
appearing on the merchandise or its
retail packaging (including labels), in
alphanumeric or other formats.
(4) * * * If the information is
unavailable at the time the notice of
detention is issued, CBP may release the
information after issuance of the notice
of detention. * * *
*
*
*
*
*
(5) * * * CBP may release a sample
under this paragraph when the owner of
the recorded mark furnishes to CBP a
bond in an amount specified by CBP
and containing the conditions set forth
in § 113.70 of this chapter. * * *
*
*
*
*
*
(c) * * *
(2) * * * CBP may release a sample
under paragraphs (b)(2)(ii) and (3) of
this section when the owner of the
recorded mark furnishes to CBP a bond
in an amount specified by CBP and
containing the conditions set forth in
§ 113.70 of this chapter. * * *
*
*
*
*
*
(f) Disclosure to owner of the recorded
mark, following seizure, of unredacted
photographs, images, and samples. At
any time following a seizure of
merchandise bearing a counterfeit mark
under this section, and upon receipt of
a proper request from the owner of the
recorded mark, CBP may provide, if
available, photographs, images, or a
sample of the seized merchandise and
its retail packaging, in its condition as
presented for examination, to the owner
of the recorded mark. CBP may release
a sample under this paragraph when the
owner of the recorded mark furnishes to
CBP a bond in an amount specified by
CBP and containing the conditions set
forth in § 113.70 of this chapter. CBP
may demand the return of the sample at
any time. The owner of the recorded
mark must return the sample to CBP
upon demand or at the conclusion of the
examination, testing, or other use. In the
event that the sample is damaged,
destroyed, or lost while in the
possession of the owner of the recorded
mark, the owner must, in lieu of return
of the sample, certify to CBP that: ‘‘The
sample described as [insert description]
and provided pursuant to 19 CFR
133.21(f) was (damaged/destroyed/lost)
during examination, testing, or other
use.’’
*
*
*
*
*
§ 133.25

[Amended]

7. Section 133.25 is amended:
a. By removing the word ‘‘Customs’’
wherever it appears, and in its place
adding the word ‘‘CBP’’;

■
■

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b. In paragraph (b) by removing the
words ‘‘owner of the trademark’’
wherever it appears, and adding in their
place the words ‘‘owner of the recorded
mark’’; and
■ c. In paragraph (c):
■ i. By removing the words ‘‘trademark
or trade name owner’’ and adding in
their place the words ‘‘owner of the
recorded mark or trade name’’ in the
paragraph heading;
■ ii. By removing the words ‘‘owner of
the trademark’’ and adding in their
place ‘‘owner of the recorded mark’’ in
the first sentence;
■ iii. By revising the second sentence;
and
■ iv. By removing the words ‘‘trademark
or trade name owner’’ and adding in
their place the words ‘‘owner of the
recorded mark or trade name’’ in the
fifth sentence.
The revision reads as follows:
■

§ 133.25 Procedure on detention of articles
subject to restriction.

*

*
*
*
*
(c) * * * CBP may release a sample
under this paragraph when the owner of
the recorded mark or trade name
furnishes to CBP a bond in an amount
specified by CBP and containing the
conditions set forth in § 113.70 of this
chapter. * * *
*
*
*
*
*
■ 8. Section 133.42 is revised to read as
follows:

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§ 133.42 Piratical articles; Unlawful copies
or phonorecords of recorded copyrighted
works.

(a) Definition. A ‘‘piratical article,’’ for
purposes of this part, is an unlawfully
made (without the authorization of the
copyright owner) copy or phonorecord
of a recorded copyrighted work,
importation of which is prohibited by
the Copyright Act of 1976, as amended.
(b) Detention, notice, and disclosure
of information—(1) Detention period.
CBP may detain any article of domestic
or foreign manufacture imported into
the United States that is suspected of
constituting a piratical article in
violation of a copyright recorded with
CBP. The detention will be for a period
of up to 30 days from the date on which
the merchandise is presented for
examination. In accordance with 19
U.S.C. 1499(c), if, after the detention
period, the article is not released, the
article will be deemed excluded for
purposes of 19 U.S.C. 1514(a)(4).
(2) Notice of detention to importer
and disclosure to owner of the recorded
copyrighted work—(i) Notice and seven
business day response period. Within
five business days from the date of a
decision to detain suspect merchandise,

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CBP will notify the importer in writing
of the detention as set forth in
§ 151.16(c) of this chapter and 19 U.S.C.
1499. CBP will also inform the importer
that for purposes of assisting CBP in
determining whether the detained
merchandise is a piratical article:
(A) CBP may have previously
disclosed to the owner of the recorded
copyright, prior to issuance of the notice
of detention, limited importation
information concerning the detained
merchandise, as described in paragraph
(b)(4) of this section, and, in any event,
such information may be released to the
owner of the recorded copyright, if
available, no later than the date of
issuance of the notice of detention; and
(B) CBP may disclose to the owner of
the recorded copyright information that
appears on the detained merchandise
and/or its retail packaging, including
unredacted photographs, images, or
samples, as described in paragraph
(b)(3) of this section, unless the importer
provides information within seven
business days of the notification
establishing that the detained
merchandise is not piratical.
(ii) Failure of importer to respond or
insufficient response to notice. Where
the importer does not provide
information within the seven business
day response period, or the information
provided is insufficient for CBP to
determine that the merchandise is not
piratical, CBP will proceed with the
disclosure of information as described
in paragraph (b)(3) of this section to the
owner of the recorded copyright, if CBP
concludes that the disclosure would
assist CBP in its determination, and
provided that disclosure would not
compromise an ongoing law
enforcement investigation or national
security. CBP will notify the importer in
case of any such disclosure.
(3) Disclosure to owner of the
recorded copyright of information
appearing on detained merchandise
and/or its retail packaging, including
unredacted photographs, images, or
samples. CBP will disclose information
appearing on the merchandise and/or its
retail packaging (including labels), and
images (including photographs) of the
merchandise and/or its retail packaging
in its condition as presented for
examination (i.e., an unredacted
condition) if CBP concludes that the
disclosure of information to the owner
of the recorded copyright as described
in paragraph (b)(2)(ii) of this section
would assist CBP in its determination,
and provided that disclosure would not
compromise an ongoing law
enforcement investigation or national
security. CBP may also provide a sample
of the merchandise and/or its retail

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packaging in its condition as presented
for examination to the owner of the
recorded copyright. The release of a
sample will be in accordance with, and
subject to, the bond and return
requirements of paragraph (c) of this
section. The disclosure may include any
serial numbers, dates of manufacture,
lot codes, batch numbers, universal
product codes, or other identifying
markings appearing on the merchandise
or its retail packaging (including labels),
in alphanumeric or other formats.
(4) Disclosure to owner of recorded
copyright of limited importation
information. From the time merchandise
is presented for examination, CBP may
disclose to the owner of the recorded
copyright limited importation
information to obtain assistance in
determining whether an imported
article is a piratical article. If the
information is unavailable at the time
the notice of detention is issued, CBP
may release the information after
issuance of the notice of detention. The
limited importation information CBP
may disclose to the owner of the
recorded copyright consists of:
(i) The date of importation;
(ii) The port of entry;
(iii) The description of the
merchandise, for merchandise not yet
detained, from the paper or electronic
equivalent of the entry (as defined in
§ 142.3(a)(1) or (b) of this chapter), the
CBP Form 7512, cargo manifest,
advance electronic information or other
entry document as appropriate, or, for
detained merchandise, from the notice
of detention;
(iv) The quantity, for merchandise not
yet detained, as declared on the paper
or electronic equivalent of the entry (as
defined in § 142.3(a)(1) or (b) of this
chapter), the CBP Form 7512, cargo
manifest, advance electronic
information, or other entry document as
appropriate, or, for detained
merchandise, from the notice of
detention; and
(v) The country of origin of the
merchandise.
(5) Disclosure to owner of recorded
copyright 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 is a
piratical article and at any time after
presentation of the merchandise for
examination, provide to the owner of
the recorded copyright photographs,
images, or a sample of the suspect
merchandise or its retail packaging
(including labels), provided that
identifying information has been

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removed, obliterated, or otherwise
obscured. Identifying information
includes, but is not limited to, serial
numbers, dates of manufacture, lot
codes, batch numbers, universal product
codes, the name or address of the
manufacturer, exporter, or importer of
the merchandise, or any markings that
could reveal the name or address of the
manufacturer, exporter, or importer of
the merchandise, in alphanumeric or
other formats. CBP may release a sample
under this paragraph when the owner of
the recorded copyright furnishes to CBP
a bond in an amount specified by CBP
and containing the conditions set forth
in § 113.70 of this chapter. CBP may
demand the return of the sample at any
time. The owner of the recorded
copyright 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 recorded
copyright, 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 133.42(b)(5) was (damaged/
destroyed/lost) during examination,
testing, or other use.’’
(c) Conditions of disclosure to owner
of recorded copyright of information
appearing on detained merchandise
and/or its retail packaging, including
unredacted photographs, images and
samples—(1) Disclosure for limited
purpose of assisting CBP in piratical
merchandise determinations. In
accordance with paragraphs (b)(2)(ii)
and (b)(3) of this section, when CBP
discloses information to the owner of
the recorded copyright prior to seizure,
CBP will notify the owner of the
recorded copyright that some or all of
the information being released may be
subject to the protections of the Trade
Secrets Act, and that CBP is only
disclosing the information to the owner
of the recorded copyright for the
purpose of assisting CBP in determining
whether the merchandise is a piratical
article.
(2) Bond. CBP may release a sample
under paragraphs (b)(2)(ii) and (3) of
this section when the owner of the
recorded copyright furnishes to CBP a
bond in an amount specified by CBP
and containing the conditions set forth
in § 113.70 of this chapter. CBP may
demand the return of the sample at any
time. The owner of the recorded
copyright 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,

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destroyed, or lost while in the
possession of the owner of the recorded
copyright, 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 133.42(c) was (damaged/
destroyed/lost) during examination,
testing, or other use.’’
(d) Disclosure to importer of
unredacted photographs, images, and
samples. CBP will disclose to the
importer unredacted photographs,
images, or an unredacted sample of
imported merchandise suspected of
being a piratical article at any time after
the merchandise is presented to CBP for
examination. CBP may demand the
return of the sample at any time. The
importer must return the sample to CBP
upon demand or at the conclusion of
any examination, testing, or similar
procedure performed on the sample. In
the event that the sample is damaged,
destroyed, or lost while in the
possession of the importer, the importer
must, in lieu of return of the sample,
certify to CBP that: ‘‘The sample
described as [insert description] and
provided pursuant to 19 CFR 133.42(d)
was (damaged/destroyed/lost) during
examination, testing, or other use.’’
(e) Seizure and disclosure to owner of
the recorded copyright of
comprehensive importation
information. Upon a determination by
CBP, made any time after the
merchandise has been presented for
examination, that an article of domestic
or foreign manufacture imported into
the United States is a piratical article,
CBP will seize such merchandise and,
in the absence of the written consent of
the owner of the recorded copyright (see
paragraph (g) of this section), forfeit the
seized merchandise in accordance with
the customs laws. When merchandise is
seized under this section, CBP will
disclose to the owner of the recorded
copyright the following comprehensive
importation information, if available,
within 30 business days from the date
of the notice of the seizure:
(1) The date of importation;
(2) The port of entry;
(3) The description of the
merchandise from the notice of seizure;
(4) The quantity as set forth in the
notice of seizure;
(5) The country of origin of the
merchandise;
(6) The name and address of the
manufacturer;
(7) The name and address of the
exporter; and
(8) The name and address of the
importer.
(f) Disclosure to owner of recorded
copyright, following seizure, of

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unredacted photographs, images, and
samples. At any time following a seizure
of a piratical article under this section,
and upon receipt of a proper request
from the owner of the recorded
copyright, CBP may provide, if
available, photographs, images, or a
sample of the seized merchandise and
its retail packaging, in its condition as
presented for examination, to the owner
of the recorded copyright. CBP may
release a sample under this paragraph
when the owner of the recorded
copyright furnishes to CBP a bond in the
amount specified by CBP and
containing the conditions set forth in
§ 113.70 of this chapter. CBP may
demand the return of the sample at any
time. The owner of the recorded
copyright must return the sample to
CBP upon demand or at the conclusion
of the examination, testing, or other use.
In the event that the sample is damaged,
destroyed, or lost while in the
possession of the owner of the recorded
copyright, 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 133.42(f) was (damaged/
destroyed/lost) during examination,
testing, or other use.’’
(g) Consent of the owner of the
recorded copyright; failure to make
appropriate disposition. The owner of
the recorded copyright, within thirty
days from notification of seizure, may
provide written consent to the importer
allowing the importation of the seized
merchandise in its condition as
imported or its exportation, entry after
obliteration of the recorded copyright,
or other appropriate disposition.
Otherwise, the merchandise will be
disposed of in accordance with § 133.52,
subject to the importer’s right to petition
for relief from forfeiture under the
provisions of part 171 of this chapter.
§§ 133.43 and 133.44
Reserved]

[Removed and

9. Sections 133.43 and 133.44 are
removed and reserved.
■ 10. Redesignate subpart F as subpart
G and add new subpart F, consisting of
§§ 133.47 and 133.48, to read as follows:
■

Subpart F—Enforcement of the
Prohibition on Importation of
Merchandise Capable of
Circumventing Technological
Measures for Protection of Copyright
§ 133.47 Articles suspected of violating
the Digital Millennium Copyright Act

(a) Definitions—(1) Copyright
protection measure. A technological
measure that effectively controls access

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to a copyrighted work for which the
copyright has been recorded with CBP.
(2) Articles that violate the DMCA.
Articles that violate the importation
prohibitions of the Digital Millennium
Copyright Act (DMCA), 17 U.S.C. 1201,
consist of products, devices,
components, or parts thereof primarily
designed or produced for the purpose of
circumventing a copyright protection
measure, or which have only a limited
commercially significant purpose or use
other than such circumvention, or
which are knowingly marketed by the
manufacturer, importer, consignee, or
other trafficker in such articles, or
another acting in concert with the
manufacturer importer, consignee, or
trafficker for use in such circumvention.
(3) Eligible person. The owner of a
recorded copyright, who employs a
copyright protection measure that may
have been circumvented or attempted to
be circumvented by articles that violate
the importation prohibitions of the
DMCA.
(4) Injured person. The owner of a
recorded copyright, who employs a
copyright protection measure that has
been circumvented or attempted to be
circumvented by articles seized for
violation of the importation prohibitions
of the DMCA, and who has successfully
applied to CBP for DMCA protections
pursuant to paragraph (b)(2)(iii) of this
section.
(b) Detention, notice, and disclosure
of information—(1) Detention period.
CBP may detain any article of domestic
or foreign manufacture imported into
the United States that it suspects is in
violation of the DMCA, as described in
paragraph (a)(1) of this section. The
detention will be for a period of up to
30 days from the date on which the
merchandise is presented for
examination. In accordance with 19
U.S.C. 1499(c), if, after the detention
period, the article is not released, the
article will be deemed excluded for the
purposes of 19 U.S.C. 1514(a)(4).
(2) Notice of detention to importer
and disclosure to eligible persons—(i)
Notice and seven business day response
period. Within five business days from
the date of a decision to detain suspect
merchandise, CBP will notify the
importer in writing of the detention as
set forth in § 151.16(c) of this chapter
and 19 U.S.C. 1499. CBP will also
inform the importer that for purposes of
assisting CBP in determining whether
the detained merchandise violates the
DMCA:
(A) CBP may have previously
disclosed to the eligible person, prior to
issuance of the notice of detention,
limited importation information
concerning the detained merchandise,

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as described in paragraph (b)(4) of this
section, and, in any event, such
information may be released to the
eligible person, if available, no later
than the date of issuance of the notice
of detention; and
(B) CBP may disclose to the eligible
person information that appears on the
detained merchandise and/or its retail
packaging, including unredacted
photographs, images, or samples, as
described in paragraph (b)(3) of this
section, unless the importer provides
information within seven business days
of the notification establishing that the
detained merchandise does not violate
the DMCA.
(ii) Failure of importer to respond or
insufficient response to notice. Where
the importer does not provide
information within the seven business
day response period, or the information
provided is insufficient for CBP to
determine that the merchandise does
not violate the DMCA, CBP will proceed
with the disclosure of information, as
described in paragraph (b)(3) of this
section, to the eligible person if CBP
concludes that the disclosure would
assist CBP in its determination, and
provided that the disclosure would not
compromise an ongoing law
enforcement investigation or national
security. CBP will notify the importer in
case of any such disclosure.
(iii) Request for DMCA protections
and establishment of a list of persons
approved for post-seizure disclosures.
Eligible persons may apply to receive
post-seizure disclosures from CBP by
attaching a letter requesting such
disclosures to an application to record
copyright. CBP will add those persons
CBP approves for such disclosures to a
list that CBP will maintain. CBP will
provide the post-seizure disclosures
described in this section to injured
persons, as defined in this part,
appearing on the list. CBP will publish
notice of the establishment of the list in
the Federal Register. After the list has
been established, CBP will publish
notice of revisions to the list in the
Federal Register.
(3) Disclosure to eligible persons of
information appearing on detained
merchandise and/or its retail packaging,
including unredacted photographs,
images or samples. CBP will disclose
information appearing on the
merchandise and/or its retail packaging
(including labels) and images (including
photographs) of the merchandise and/or
its retail packaging in its condition as
presented for examination (i.e., an
unredacted condition) if CBP concludes
that the disclosure of information to the
eligible person as described in
paragraph (b)(2)(ii) of this section would

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assist CBP in its determination, and
provided that the disclosure would not
compromise an ongoing law
enforcement investigation or national
security. CBP may also provide a sample
of the merchandise and/or its retail
packaging in its condition as presented
for examination to the eligible person.
The release of a sample will be in
accordance with, and subject to, the
bond and return requirements of
paragraph (c) of this section. The
disclosure may include any serial
numbers, dates of manufacture, lot
codes, batch numbers, universal product
codes, or other identifying markings
appearing on the merchandise or its
retail packaging (including labels), in
alphanumeric or other formats.
(4) Disclosure to eligible person of
limited importation information. From
the time merchandise is presented for
examination, CBP may disclose to the
eligible person limited importation
information in order to obtain assistance
in determining whether an imported
article violates the DMCA. If the
information is unavailable at the time
the notice of detention is issued, CBP
may release the information after
issuance of the notice of detention. The
limited importation information CBP
may disclose to the eligible person
consists of:
(i) The date of importation;
(ii) The port of entry;
(iii) The description of the
merchandise, for merchandise not yet
detained, from the paper or electronic
equivalent of the entry (as defined in
§ 142.3(a)(1) or (b) of this chapter), the
CBP Form 7512, cargo manifest,
advance electronic information or other
entry document as appropriate, or, for
detained merchandise, from the notice
of detention;
(iv) The quantity, for merchandise not
yet detained, as declared on the paper
or electronic equivalent of the entry (as
defined in § 142.3(a)(1) or (b) of this
chapter), the CBP Form 7512, cargo
manifest, advance electronic
information, or other entry document as
appropriate, or, for detained
merchandise, from the notice of
detention; and
(v) The country of origin of the
merchandise.
(5) Disclosure to eligible person of
redacted photographs, images and
samples. Notwithstanding the notice
and seven business day response
procedure of paragraph (b)(2) of this
section, CBP may, in order to obtain
assistance in determining whether an
imported article violates the DMCA and
at any time after presentation of the
merchandise for examination, provide
to the eligible person photographs,

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Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules
images, or a sample of the suspect
merchandise or its retail packaging
(including labels), provided that
identifying information has been
removed, obliterated, or otherwise
obscured. Identifying information
includes, but is not limited to, serial
numbers, dates of manufacture, lot
codes, batch numbers, universal product
codes, the name or address of the
manufacturer, exporter, or importer of
the merchandise, or any markings that
could reveal the name or address of the
manufacturer, exporter, or importer of
the merchandise, in alphanumeric or
other formats. CBP may release a sample
under this paragraph when the eligible
person furnishes to CBP a bond in an
amount specified by CBP and
containing the conditions set forth in
§ 113.70 of this chapter. CBP may
demand the return of the sample at any
time. The eligible person must return
the sample to CBP upon demand or at
the conclusion of any examination,
testing, or similar procedure performed
on the sample. In the event that the
sample is damaged, destroyed, or lost
while in the possession of the eligible
person, the eligible person must, in lieu
of return of the sample, certify to CBP
that: ‘‘The sample described as [insert
description] and provided pursuant to
19 CFR 133.47(b)(5) was (damaged/
destroyed/lost) during examination,
testing, or other use.’’
(c) Conditions of disclosure to eligible
person of information appearing on
detained merchandise and/or its retail
packaging, including unredacted
photographs, images and samples—(1)
Disclosure for limited purpose of
assisting CBP in DMCA determinations.
In accordance with paragraphs (b)(2)(ii)
and (3) of this section, when CBP
discloses information to an eligible
person prior to seizure, CBP will notify
the eligible person that some or all of
the information being released may be
subject to the protections of the Trade
Secrets Act, and that CBP is only
disclosing the information to the eligible
person for the purpose of assisting CBP
in determining whether the
merchandise violates the DMCA.
(2) Bond. CBP may release a sample
under paragraphs (b)(2)(ii) and (3) of
this section when the eligible person
furnishes to CBP a bond in an amount
specified by CBP and containing the
conditions set forth in § 113.70 of this
chapter. CBP may demand the return of
the sample at any time. The eligible
person must return the sample to CBP
upon demand or at the conclusion of
any examination, testing, or similar
procedure performed on the sample. In
the event that the sample is damaged,
destroyed, or lost while in the

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possession of the eligible person, the
eligible person must, in lieu of return of
the sample, certify to CBP that: ‘‘The
sample described as [insert description]
and provided pursuant to 19 CFR
133.47(c) was (damaged/destroyed/lost)
during examination, testing, or other
use.’’
(d) Disclosure to importer of
unredacted photographs, images or
samples. CBP will disclose to the
importer unredacted photographs,
images, or an unredacted sample of
imported merchandise suspected of
violating the DMCA at any time after the
merchandise is presented to CBP for
examination. CBP may demand the
return of the sample at any time. The
importer must return the sample to CBP
upon demand or at the conclusion of
any examination, testing, or similar
procedure performed on the sample. In
the event that the sample is damaged,
destroyed, or lost while in the
possession of the importer, the importer
must, in lieu of return of the sample,
certify to CBP that: ‘‘The sample
described as [insert description] and
provided pursuant to 19 CFR 133.47(d)
was (damaged/destroyed/lost) during
examination, testing, or other use.’’
(e) Seizure and disclosure to injured
person of comprehensive importation
information. Upon a determination by
CBP, made any time after the
merchandise has been presented for
examination, that an article of domestic
or foreign manufacture imported into
the United States violates the DMCA as
described in paragraph (a)(1) of this
section, CBP will seize such
merchandise and, in the absence of
written consent of the injured person
(see paragraph (g) of this section), forfeit
the seized merchandise in accordance
with the customs laws. When
merchandise is seized under this
section, CBP will disclose to the injured
person the following comprehensive
importation information, if available,
within 30 business days from the date
of the notice of the seizure:
(1) The date of importation;
(2) The port of entry;
(3) The description of the
merchandise from the notice of seizure;
(4) The quantity as set forth in the
notice of seizure;
(5) The country of origin of the
merchandise;
(6) The name and address of the
manufacturer;
(7) The name and address of the
exporter; and
(8) The name and address of the
importer.
(f) Disclosure to injured person,
following seizure, of unredacted
photographs, images and samples. At

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55263

any time following a seizure of DMCAviolative merchandise under this
section, and upon receipt of a proper
request from the injured person, CBP
may provide, if available, photographs,
images, or a sample of the seized
merchandise and its retail packaging or
labels, in its condition as presented for
examination, to the injured person. CBP
may release a sample under this
paragraph when the injured party
furnishes to CBP a bond in an amount
specified by CBP and containing the
conditions set forth in § 113.70 of this
chapter. CBP may demand the return of
the sample at any time. The injured
person must return the sample to CBP
upon demand or at the conclusion of the
examination, testing, or other use. In the
event that the sample is damaged,
destroyed, or lost while in the
possession of the injured person, the
injured person must, in lieu of return of
the sample, certify to CBP that: ‘‘The
sample described as [insert description]
and provided pursuant to 19 CFR
133.47(f) was (damaged/destroyed/lost)
during examination, testing, or other
use.’’
(g) Consent of the owner of the
recorded copyright; failure to make
appropriate disposition. The owner of
the recorded copyright, within thirty
days from notification of seizure, may
provide written consent to the importer
allowing the importation of the seized
merchandise in its condition as
imported or its exportation, entry after
obliteration of the recorded copyright,
or other appropriate disposition.
Otherwise, the merchandise will be
disposed of in accordance with § 133.52
of this part, subject to the importer’s
right to petition for relief from forfeiture
under the provisions of part 171 of this
chapter.
§ 133.48
articles

Demand for redelivery of released

If it is determined that articles which
have been released from CBP custody
are subject to the prohibitions or
restrictions of this subpart, an
authorized CBP official will promptly
make demand for redelivery of the
articles in accordance with § 141.113 of
this chapter. If the articles are not
redelivered to CBP custody under the
terms of the bond on CBP Form 301,
containing the bond conditions set forth
in § 113.62 of this chapter, a claim for
liquidated damages will be made in
accordance with § 141.113 of this
chapter.
§ 133.51

[Amended]

11. Section 133.51 is amended in
paragraph (a) by:

■

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

a. Adding the words ’’ including the
DMCA,’’ after the words ‘‘trademark or
copyright laws,’’; and
■ b. Removing the phrase ‘‘§ 133.24 or
§ 133.46.’’ and adding in its place the
phrase ‘‘§§ 133.24, 133.46, or 133.48 of
this part.’’
■

§ 133.52

[Amended]

12. Section 133.52 is amended in
paragraph (b) by adding the phrase
‘‘except as provided in §§ 133.42(g) and
133.47(g) of this part’’ after the word
‘‘destroyed’’.

■

PART 148—PERSONAL
DECLARATIONS AND EXEMPTIONS

Authority: 19 U.S.C. 66, 1496, 1498, 1624.
The provisions of this part, except for subpart
C, are also issued under 19 U.S.C. 1202
(General Note 3(i), Harmonized Tariff
Schedule of the United States).

*

*

*

*

Section 148.55 also issued under 17 U.S.C.
602 and 19 U.S.C. 1526;

*

*
*
*
*
14. Amend § 148.55 by revising the
section heading and paragraphs (a) and
(c) to read as follows:

■

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§ 148.55 Exemption for articles embodying
American trademark or copyright.

(a) Application of Exemption. An
exemption is provided for articles
bearing a counterfeit mark (as defined in
§ 133.21(a) of this chapter) or piratical
articles (as defined in § 133.42(a) of this
chapter) accompanying any person
arriving in the United States which
would be prohibited entry under 19
U.S.C. 1526, 15 U.S.C. 1124, or 17
U.S.C. 602. The exemption may be
applied either to those piratical articles
or to those articles bearing a counterfeit
mark that are of foreign manufacture
and bear a recorded mark owned by a
citizen of, or a corporation or
association created or organized within,
the United States, when imported for
the arriving person’s personal use in the
quantities provided in paragraph (c) of
this section.
*
*
*
*
*
(c) Quantities. Generally, every 30
days, persons arriving in the United
States may apply the exemption to the
following: one piratical article of each
type, or one article of each type bearing
a counterfeit mark, and/or one piratical
article of each type that is also an article
bearing a counterfeit mark. The
Commissioner shall determine if more
than one article may be entered and,

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PART 151—EXAMINATION,
SAMPLING, AND TESTING OF
MERCHANDISE
15. The general authority citation for
part 151 continues to read as follows:

■

13. The general authority citation for
part 148 continues and new specific
authority is added for § 148.55, to read
as follows:

■

*

with the approval of the Secretary of the
Treasury, publish in the Federal
Register a list of types of articles and the
quantities of each entitled to the
exemption. If the owner of a recorded
mark or recorded copyright allows
importation of more than one article
normally prohibited entry under 19
U.S.C. 1526, 15 U.S.C. 1124, or 17
U.S.C. 602, the total of those articles
authorized by the owner may be entered
without penalty.

Authority: 19 U.S.C. 66, 1202 (General
Note 3(i) and (j), Harmonized Tariff Schedule
of the United States (HTSUS), 1624;

*

*
*
*
*
■ 16. Amend § 151.16 by:
■ a. Revising paragraphs (a), (b), and (c);
■ b. Removing the word ‘‘Customs’’
wherever it appears and adding in its
place the term ‘‘CBP’’, and removing the
word ‘‘shall’’ wherever it appears and
adding in its place the word ‘‘will’’ in
paragraph (d);
■ c. Removing the word ‘‘Customs’’ and
adding in its place the term ‘‘CBP’’ in
paragraph (e);
■ d. Removing the word ‘‘Customs’’
wherever it appears and adding in its
place the term ‘‘CBP’’, and removing the
word ‘‘shall’’ and adding in its place the
word ‘‘will’’ in paragraph (f);
■ e. Removing the word ‘‘shall’’ and
adding in its place the word ‘‘will’’ in
paragraph (g);
■ f. Removing the word ‘‘Customs’’ and
adding in its place the term ‘‘CBP’’ in
paragraph (h);
■ g. Removing the word ‘‘Customs’’ and
adding in its place the term ‘‘CBP’’, and
removing the word ‘‘shall’’ and adding
in its place the word ‘‘will’’ in
paragraph (i); and
■ h. Removing the word ‘‘Customs’’ and
adding in its place the term ‘‘CBP’’ in
paragraph (j).
The revisions read as follows:
§ 151.16

Detention of merchandise.

(a) Exemptions from applicability.
The provisions of this section are not
applicable to detentions effected by CBP
on behalf of other agencies of the U.S.
Government in whom the determination
of admissibility is vested.
(b) Decision to detain or release.
Within five business days from the date
on which merchandise is presented for
CBP examination, CBP will decide
whether to release or detain
merchandise. Merchandise that is not

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released within the five business day
period will be considered to be detained
merchandise under 19 U.S.C. 1499(c)(1).
For purposes of this section,
merchandise will be considered to be
presented for CBP examination when it
is in a condition to be viewed and
examined by a CBP officer. Mere
presentation to the examining officer of
a cargo van, container, or instrument of
international traffic in which the
merchandise to be examined is
contained will not be considered to be
presentation of merchandise for CBP
examination for purposes of this
section. Except when merchandise is
examined at the public stores, the
importer must pay all costs relating to
the preparation and transportation of
merchandise for CBP examination.
(c) Notice of detention. If a decision
to detain merchandise is made, or the
merchandise is not released within the
five business day period described in
paragraph (b) of this section, CBP will
issue a notice to the importer or other
party having an interest in such
merchandise within five business days
from such decision or failure to release.
Issuance of a notice of detention is not
to be construed as a final determination
as to admissibility of the merchandise.
The notice will be prepared by the CBP
officer detaining the merchandise and
will advise the importer or other
interested party of the:
(1) Initiation of the detention,
including the date the merchandise was
presented for examination;
(2) Specific reason for the detention;
(3) Anticipated length of the
detention;
(4) Nature of the tests or inquiries to
be conducted; and
(5) Nature of any information which,
if supplied to CBP, may accelerate the
disposition of the detention.
*
*
*
*
*
PART 177—ADMINISTRATIVE
RULINGS
17. The general authority citation for
part 177 continues to read as follows:

■

Authority: 5 U.S.C. 301, 19 U.S.C. 66, 1202
(General Note 3(i), Harmonized Tariff
Schedule of the United States), 1502, 1624,
1625.

*

*

§ 177.0

*

*

*

[Amended]

18. In § 177.0 remove the words ‘‘part
133 (relating to disputed claims of

■

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Federal Register / Vol. 84, No. 200 / Wednesday, October 16, 2019 / Proposed Rules
piratical copying of copyrighted
matter),’’.
Robert E. Perez,
Deputy Commissioner, U.S. Customs and
Border Protection.
Approved: October 2, 2019.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 2019–21980 Filed 10–15–19; 8:45 am]
BILLING CODE 9111–14–P

NATIONAL LABOR RELATIONS
BOARD
29 CFR Part 103
RIN 3142–AA15

Jurisdiction—Nonemployee Status of
University and College Students
Working in Connection With Their
Studies; Correction and Extension of
Comment Period
AGENCY:

National Labor Relations

Board.
Notice of proposed rulemaking;
Correction; extension of comment
period.

ACTION:

This document corrects the
preamble to a proposed rule published
in the Federal Register of September 23,
2019, regarding Nonemployee Status of
University and College Students
Working in Connection with Their
Studies. This correction revises the
Regulatory Flexibility Act section in the
preamble of the proposed rule to
substitute an Initial Regulatory
Flexibility Analysis. The date to submit
responses to the Notice of Proposed
Rulemaking is also extended for 60
days.

SUMMARY:

The comment period for the
notice of proposed rulemaking
published at 84 FR 49691 is extended.
Comments must be received by the
Board on or before Monday, December
16, 2019. Comments replying to
comments submitted during the initial
comment period must be received by
the Board on or before Monday,
December 30, 2019.
FOR FURTHER INFORMATION CONTACT:
Roxanne Rothschild, Executive
Secretary, National Labor Relations
Board, 1015 Half Street SE, Washington,
DC 20570–0001, (202) 273–1940 (this is
not a toll-free number), 1–866–315–6572
(TTY/TDD).
SUPPLEMENTARY INFORMATION:

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DATES:

Correction
In proposed rule FR 2019–20510,
beginning on page 49691 in the issue of
September 23, 2019, make the following

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correction, in the SUPPLEMENTARY
INFORMATION section. On page 49699, in
the 1st column, revise the text between
‘‘Regulatory Flexibility Act’’ and
‘‘Paperwork Reduction Act’’ to read as
follows:
A. Initial Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980
(‘‘RFA’’), 5 U.S.C. 601, et seq., ensures
that agencies ‘‘review draft rules to
assess and take appropriate account of
the potential impact on small
businesses, small governmental
jurisdictions, and small organizations,
as provided by the [RFA].’’ 1 It requires
agencies promulgating proposed rules to
prepare an Initial Regulatory Flexibility
Analysis (‘‘IRFA’’) and to develop
alternatives wherever possible, when
drafting regulations that will have a
significant impact on a substantial
number of small entities.2 However, an
agency is not required to prepare an
IRFA for a proposed rule if the agency
head certifies that, if promulgated, the
rule will not have a significant
economic impact on a substantial
number of small entities.3 The RFA does
not define either ‘‘significant economic
impact’’ or ‘‘substantial number of small
entities.’’ 4 Additionally, ‘‘[i]n the
absence of statutory specificity, what is
‘significant’ will vary depending on the
economics of the industry or sector to be
regulated. The agency is in the best
position to gauge the small entity
impacts of its regulations.’’ 5
As discussed below, the Board
believes its proposed rule will likely not
have a significant economic impact on
a substantial number of small entities
but is not certain. The Board assumes
for purposes of this analysis that a
substantial number of small employers
and small entity labor unions will be
impacted by this rule because at a
minimum, they will need to review and
understand the effect of the proposed
standard as it relates to undergraduate
and graduate students who perform
services for compensation in connection
with their studies. Additionally, there
may be compliance costs that are
unknown to the Board.
1 E.O. 13272, Sec. 1, 67 FR 53461 (‘‘Proper
Consideration of Small Entities in Agency
Rulemaking’’).
2 Under the RFA, the term ‘‘small entity’’ has the
same meaning as ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ 5 U.S.C. 601(6).
3 5 U.S.C. 605(b).
4 5 U.S.C. 601.
5 Small Business Administration Office of
Advocacy, ‘‘A Guide for Government Agencies:
How to Comply with the Regulatory Flexibility
Act’’ (‘‘SBA Guide’’) at 18, https://www.sba.gov/
sites/default/files/advocacy/How-to-Comply-withthe-RFA-WEB.pdf.

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For these reasons, the Board has
elected to prepare an IRFA to provide
the public the fullest opportunity to
comment on the proposed rule.6 An
IRFA describes why an action is being
proposed; the objectives and legal basis
for the proposed rule; the number of
small entities to which the proposed
rule would apply; any projected
reporting, recordkeeping, or other
compliance requirements of the
proposed rule; any overlapping,
duplicative, or conflicting Federal rules;
and any significant alternatives to the
proposed rule that would accomplish
the stated objectives, consistent with
applicable statutes, and that would
minimize any significant adverse
economic impacts of the proposed rule
on small entities.7 An IRFA also
presents an opportunity for the public to
provide comments that will shed light
on impacted entities and potential
compliance costs that are unknown to
the Board or on any other part of the
IRFA.
Detailed descriptions of this proposed
rule, its purpose, objectives, and the
legal basis are contained in the SUMMARY
and SUPPLEMENTAL INFORMATION sections
of the Notice of Proposed Rulemaking.
See 84 FR 49691. In brief, the proposed
rule states that students who perform
any services, including teaching or
research assistance, at a private college
or university related to their studies are
not statutory employees subject to
jurisdiction of the Board. The Board has
concluded that this rule—providing that
undergraduate and graduate students
performing services in connection with
their studies are not statutory
employees—is more consistent with the
purposes and policies of the National
Labor Relations Act (Act or NLRA),
which contemplates jurisdiction over
economic relationships not those that
are primarily educational in nature.
B. Description and Estimate of Number
of Small Entities to Which the Rule
Applies
To evaluate the impact of the
proposed rule, the Board first identified
the universe of small entities that could
be impacted by the determination that
students who perform services at a
private college or university in
connection with their studies are not
statutory employees. The United States
Census Bureau does not specifically
define ‘‘small business’’ but does break
down its data into firms with fewer than
6 After a review of the comments, the Board may
elect to certify that the rule will not have a
significant economic impact on a substantial
number of small entities in the publication of the
final rule. 5 U.S.C. 605(b).
7 5 U.S.C. 603(b).

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